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Climate Adaptation and Bankruptcy: Preparing Utilities for What is to Come
Full text linkClimate change is an existential crisis that has and will continue to impact every aspect of our daily lives. An overlooked component of life in the United States, except in times of crisis, is our energy grid, which will continuously feel the consequences of climate change. Electricity is a basic necessity for most people in the U.S., but it is underprepared for the realities of climate change. Climate adaptation is a necessary step forward that energy utilities must take to ensure the resilience and reliability of electricity. Failure to adequately adapt will lead to dangerous situations as seen in the Camp Fire of 2018 in California, the Texas cold front that led to massive power outages in 2021, and the 2023 Maui fires in Hawai’i. The adaptation of utilities is no longer optional, but absolutely necessary.
In the U.S., the majority of electricity is distributed through for-profit utilities, leaving these companies with the responsibility to adapt their infrastructure to avoid the most severe consequences of climate change. Without adaptation, the energy infrastructure will suffer, and utilities will face financial peril that will place them, and their consumers, at risk. Climate change will lead to an increasing amount of utilities facing economic harm as a result of underprepared infrastructure or incorrect data. This economic harm will lead to more and more chapter 11 bankruptcies of for-profit utilities.
Bankruptcy plans require debtors to do everything in their power to create a financially viable company post-bankruptcy. Without this, the plan fails its ultimate mission. This Comment argues that for a chapter 11 bankruptcy of a utility to succeed, it must compel climate adaptation in the process. This would ideally take place in the form of a Bankruptcy Code amendment, requiring the consideration of climate adaptation in the bankruptcy process. Additionally, state law and debtor-in-possession (“DIP”) financing are powerful tools to incorporate climate adaptation into the bankruptcy process for utilities. State law has the power to introduce policy objectives compelling the climate adaptation of utilities to ensure fewer climate-induced disasters where there are significant consequences. DIP financing allows for the lender to have control over the restructuring process and compel adequate adaptations throughout.
Without climate adaptation in bankruptcy, utilities emerge incapable of handling the increasing severity of climate change and will find themselves circling back to bankruptcy time and time again
Testing the Waters: Expanding Chapter 9 Bankruptcy to Encourage Treatment of Chemically Contaminated Drinking Water
Full text linkChemical contamination of drinking water supplies has become a significant issue across the globe with serious health and safety impacts. While the true extent of the impact is still being determined, costs associated with remediation efforts to clean up are astonishing. Municipalities, in particular cities, towns, and counties, suffer significant damages both through costs incurred directly for treatment of chemically contaminated drinking water supplies and through lost revenues resulting from municipal residents’ exposure.
This Comment argues Congress should expand municipal access to filing for bankruptcy under chapter 9 of the Bankruptcy Code to encourage local government efforts to clean up chemical contamination in drinking water supplies. It shows astronomical costs associated with widely spread chemical contamination. In particular, contamination caused by highly toxic forever chemicals is not covered by present litigation settlements paid by corporations or present municipal budgets.
Additionally, chemical exposure leads many municipal residents to develop chronic illnesses that impact their ability to work and increases the need for public healthcare and welfare services. This, in turn, hurts the local economy. This Comment further demonstrates that, given the state of modern municipal debts, cleanup of chemical contamination is almost certain to cause significant fiscal distress for municipalities that want to facilitate cleanup efforts regardless of whether they can receive external funding to do so. Damages and chemical contamination worsen with each passing day chapter 9 bankruptcy is inaccessible.
Therefore, Congress should expand access to chapter 9 bankruptcy to give municipalities the opportunity to act in the best interest of their residents. Primarily, Congress should reevaluate the explicit state authorization and insolvency requirements as together they present opportunities for governments, lenders, and potential creditors, to take advantage of fiscally distressed municipalities while failing to protect municipal autonomy.
The courts should also revisit their interpretations of the insolvency requirement to create realistic evaluations of municipal financial standing. As the insolvency requirement is currently interpreted, it encourages, and at times requires, municipalities to incur significant additional debt or otherwise be barred from filing for bankruptcy. This requirement, in turn, imposes undue hardships on municipal residents who will be subject to increased taxes and reduced public services. These detriments are compounded in jurisdictions suffering chemical contamination.
Revisions to chapter 9 could ultimately encourage the cleanup of highly toxic and dangerous chemicals to provide for the health and welfare of impacted municipal residents while also creating a sustainable financial plan for impacted municipalities
Civil Society and the Crisis of Privacy Law
Full text linkBased on interviews with key players, public reports, and previously undisclosed primary sources, this Article tells the inside story of the American Data Privacy and Protection Act (ADPPA) and the role of privacy nonprofit organizations in crafting it. It uses ADPPA’s drafting as a case study about larger questions of expertise, the lawmaking process, and the role of law in setting the context of advocacy. The Article’s descriptive argument is that background law and the dynamics of privacy policymaking in the United States Congress channeled and constrained the choices made by privacy civil society organizations while negotiating and drafting key parts of ADPPA. Those choices focused on the nature of civil society’s expertise within the legislative process and the kinds of policy proposals nonprofit advocates brought to the table. The Article’s normative argument is that those choices created a privacy law that is ill-suited to addressing the privacy challenges of artificial intelligence (AI). Following Thomas Kuhn’s model of normalization, anomaly, and paradigm shift, the ADPPA case study surfaces how the law places limits on civil society and the need for new approaches to privacy law and civil society expertise in the age of AI
Vice Capital
Full text linkAcademic and market interest in environmental, social, and governance (ESG) investing has grown markedly in recent years. Although less prominent, a substantial literature also explores whether “sin pays” in the public capital markets. This literature’s underlying theory is that social norms discourage the funding of businesses that promote vice. According to this theory, some investors—particularly institutions sensitive to social norms, such as pension funds and foundations—will shun vice investments. A consequence of this aversion is a “vice premium” for those investors who will invest in such companies. Largely unexplored, however, is what industries or business models qualify as “vice,” how this definition is constructed and changes, how vice aversion affects startup corporate governance and finance, and what consequences vice aversion holds for the real economy.
We address these gaps through a series of interviews with startup founders, venture-capital (VC) and angel investors, and legal and financial practitioners. Descriptive data from commercial VC databases supplement our interviews. We find that the definition of “vice” is nuanced and shifts over time as the subjective preferences of investors and their constituents adapt to changing regulatory environments and social mores. Our respondents report that vice startups face heightened regulatory and business-infrastructure hurdles compared to non-vice startups. This experience is especially true for women and other minoritized vice entrepreneurs and those serving minoritized customer bases. These challenges implicate entrepreneurship, society, and capital markets, including by complicating the concept of the vice premium in finance theory and by showing the potential for vice aversion to shape both the vice and non-vice sides of the real economy
Public Policy’s Dual Function in Conflicts Law
Full text linkPublic policy displays in conflicts law in various forms. It plays both a preventive and an offensive role. In its defensive form it may be used to refuse recognition of a foreign judgement or an arbitral award which violate forum’s public policy. It may also block the law chosen by the parties or any law otherwise applicable to the transaction for public policy violations. Simultaneously public policy provides for the direct application of its offensive function known as mandatory laws which will replace the law chosen by the parties or the law determined through any conflict analysis. This Article illustrates this dual function
Clinicians in the Loop of Medical AI
Full text linkAs medical AI begins to mature as a health-care tool, the task of governance grows increasingly important. Ensuring that medical AI works, works where it’s used, and works for the patient in the moment is a challenging, multifaceted task. Some of this governance can be centralized—in review by FDA or by national accreditation labs, for instance. Some must be local, performed by the hospital or health system about to use the product in their own, unique environment. But a large amount of governance is left to the individual provider in the room, the human in the loop who presumably knows the patient and the health system environment, and who can ensure that the AI system is being used in a safe and effective manner. This is a hefty burden, and a growing body of empirical research shows that physicians and other providers are poorly prepared to carry this burden. How should policymakers and industry leaders develop standards for performance that account for the variability of humans in the loop and the variation among situations they will face? The notion that the final responsibility belongs to the physician poorly reflects the reality of modern medical technology and practice. Policymakers will need to come to grips with this new reality if they aim to ensure the safe, effective use of AI accessible to patients across the entire spectrum of the health-care system
Criminal Investors
Full text linkThis Article reassesses the culpability of those who invest in law-breaking firms. Prosecutors currently treat investors as victims of corporate wrongdoing rather than as actors who might bear responsibility for it. This Article observes, though, that investment can facilitate, and even cause, illicit corporate activity. When investors intentionally contribute to those effects, substantive criminal law imposes liability on them just the same as it does on accomplices, conspirators, or principals in other contexts. Despite this formal parity, however, investor criminal liability is more a theoretical proposition than a practical reality.
This Article questions that status quo by asking whether and when culpable investors should be held criminally accountable for corporate wrongdoing. The answer, it explains, must balance the public’s interests in law compliance and capital formation. It finds individual investors in private law-breaking firms, who have at least a knowing intent, to be plausible enforcement targets. For other investors, the status quo merits keeping. Yet, if culpable investors are at realistic risk of prosecution, law-abiding investors might, even if erroneously, perceive themselves as exposed. If so, they might make fewer and less efficient investments. To address this danger, this Article calls for safe harbors to protect investors who rely on firms’ representations of having adequate corporate compliance programs or who rely on their own pre-investment investigations. These safe harbors would incent proactive compliance by firms and due diligence by investors while also distinguishing law-abiding from criminal investors
Privileging Genetic Privacy
Full text linkRight now, research is being done on the genetic material or genetic information of practically every person in the United States, often without their knowledge or consent. These vast stores of research materials offer a tempting target for law enforcement, who have sought to obtain DNA profiles from as many sources as possible. This Article makes the case that this scenario should trouble us—and also that there are existing legal tools that could guard against it.
In so doing, it makes four contributions to the existing literature. First, it identifies the unique features of research genetic data that make it particularly attractive for law enforcement use, enriching debates over the proper scope of human subjects research protections and the limits of de-identification as a defense against privacy harms. Second, it argues that, just as federal research regulations create conditions ripe for law enforcement interest, federal law may provide an antidote: the Certificate of Confidentiality. Certificates are creatures of federal statute that shield sensitive data used in research from nonconsensual disclosure. Bridging evidence law, research ethics, and criminal procedure, the Article demonstrates that Certificates embody a statutory privilege—one that applies even against law enforcement warrants. Third, the Article makes the case that law enforcement encroachment of research resources would be disastrous for the research enterprise, as it would undermine public trust, challenge ethical principles, and perhaps ultimately degrade the quality of human genetic research writ large. Fourth, the Article considers the broader implications of this analysis, arguing that Certificates provide a model for achieving robust privacy protection, even where law enforcement is concerned. Scholars across fields of privacy, evidence, and criminal justice should heed the Certificate statute, help cultivate its success, and build on its lessons for safeguarding our data from ever-expanding government surveillance
Josef Bohatec: The First Historian of the Calvinist Reformation of Rights
Full text linkThis Article analyzes the pioneering work of the first great historian of Calvinist rights talk, Josef Bohatec (1876–1954), a Moravian-born and Vienna-based church historian. Bohatec built on the earlier efforts of several German scholars who were excavating pre-Enlightenment sources of human rights going back to antiquity. But Bohatec placed strong new emphasis on the original rights contributions of sixteenth-century Protestant reformer John Calvin (1509-1564) and his followers. Bohatec showed how Calvin’s legal training shaped the many new statutes and rights ordinances that he crafted for Geneva. He also showed how Calvin’s theological training shaped his highly innovative Protestant legal and political theory. On Bohatec’s account, Calvin presented church and state as living bodies that exercised limited and balanced authority in society. Calvin presented natural law and natural rights as ongoing gifts of “divine clemency” to guide human agency, behavior, legislation, and adjudication. And Calvin insisted on “written constitutions” with a clear enumeration of powers and forms of government, and a clear differentiation of fundamental rights of life, property, religion, election, due process, and more. Calvin’s rights ideas not only reformed Genevan law, but also drove the growing movements of rights, resistance, and revolution in France, Netherlands, Scotland, England, and eventually America as Calvinists faced repression, tyranny, and genocide. Particularly this latter theme underscored Bohatec’s use of history as a form of political critique. He lived through much seismic political turmoil in his day: the breakup of his homeland in the Austro-Hungarian Empire; the devastation of World Wars I and II; the rise of National Socialism; and the escalating Cold War between the West and the Soviets. Just as Nazism was on the rise in Europe, Bohatec presented historical Calvinism as a powerful source of resistance against autocracy. Just as fellow Christians were readily acquiescing in Hitler’s and Stalin’s claims to absolute power, Bohatec reminded them of Calvin’s most fundamental political teaching that even God chose to limit his absolute sovereignty and submit himself to the law for the sake of justice, peace, and love