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Propertizing Environmental Attributes
No full textVolume 39-3Tangible environmental resources such as land and water have been the object of property rights and traded in markets for millennia. In a development largely unnoticed by legal scholars, technology now allows a new class of environmental resources that are much harder to see and touch to be measured and potentially sold—environmental attributes. Some of these resources have already been partially packaged into property rights for sale by some governments and private actors, such as actual and avoided carbon emissions, and the environmental benefits of renewable power and electric cars. However, other resources, such as avoided water use, remain unpropertized. Trading environmental attributes can help to achieve important societal objectives, such as decarbonizing the energy system, although there are also criticisms of using markets for these goals.
This Article emphasizes that property rights need to be created in environmental attributes if policymakers and private actors wish to enlist markets to achieve societal goals. The Article explains the steps involved in creating property rights in environmental attributes. Drawing on the approaches already used to create property rights in some of these attributes, the Article identifies a menu of options for establishing property rights in attributes that currently can be measured and those that technology will allow to be isolated in the future. In addition, it applies this menu to recommend a first-in-time rule for
establishing property rights in avoided electricity use from energy-efficient appliances and other energy saving measures, a prominent example of the recently recognized class of environmental attributes. Recognizing society’s growing interest in harnessing newer environmental attributes, this Article concludes that markets in such attributes could expand if the rules for initially allocating these resources were clarified
Property and Credit: A Legal and Economic History
No full textVol. 33:2Many legal historians engage in various forms of critique of capitalism and Western colonialism. Very few actually study capitalism from the inside, addressing questions related to capital accumulation, financial institutions, entrepreneurs, or business corporations. Fewer still scrutinize, from the inside, the connections between capitalism and colonialism, by studying global trade, capital flows, the City of London, or multinationals. Some of the historians who have been attracted to these internal issues in recent years and identify themselves as new historians of capitalism avoid economic history and economic theory, it would seem, due to ideological hostility, ignorance, or a lack of the specific competencies required in these realms. Few of these historians pay attention to law. But the group of scholars who are involved in what I term legal-economic history—historians who are willing to tackle the details of legal doctrines and institutions, on the one hand, and draw on economic history literature and insights from economic theory, on the other—is markedly small. I can think of fewer than a dozen such active legal-economic historians. Claire Priest is one of these exceptional few. She does legal-economic history of the kind I appreciate and aim to do myself. In Credit Nation, she employs economic history literature and engages with economic historians
The Dual-Class Spectrum
No full textVolume 39-3The debate over dual-class companies is longstanding and ongoing. However, scholars and regulators generally treat the question of whether a company is dual class as a binary one. If a company grants certain shareholders a separate class of stock with disproportionate voting rights, then the company is treated as a dual-class company. A company with only a single class of stock is never treated as dual class because it is assumed that the shareholders in a single-class company are treated equally. This Article uses an original dataset to provide a new perspective on the dual-class debate by showing that treating the distinction between dual-class and single-class as binary has caused scholars and regulators to miss the myriad ways in which insiders receive rights that are not available to public shareholders.
The dataset shows the wide spectrum of control rights that purportedly single-class corporations grant to insider shareholders by contract rather than through high-vote stock. In fact, companies grant special rights to insiders through contractual mechanisms much more commonly than they do through traditional dual-class structures. Based on these findings, this Article argues that single-class companies that grant disproportionate control rights to insider shareholders by contract are single class in form, but dual class in substance, which, problematically, allows them to avoid the scrutiny and restrictions that protect public shareholders in traditional dual-class companies
Foreword: From Ownership to Credit
No full textVol. 33:2For much of the previous four decades—decades that saw the rise to prominence of both the New Institutional Economics and Law and Economics movements—the primary intellectual paradigm in property law was one of exclusion and security. The key functional virtue of property law in this paradigm was the security of private investments against outside expropriation, whether vertically from state actors or horizontally from other private entities, and therefore the predictability of returns to investment. Such security was primarily achieved through exclusion rights, exercised both vertically and horizontally: takings law being a major example of the former, and trespass law the central example of the latter. Property rights were therefore, above all, rights of ownership or dominion over things of value, and their primary economic functionality was to facilitate the creation of credible commitments against expropriation or invasion
Rethinking Property Rights in the Light of Credit Nation
No full textVol. 33:2The publication of Claire Priest’s new book, Credit Nation: Property Laws and Institutions in Early America, is an occasion well worth marking. Several years ago, when I read her article Creating an American Property Law, the first piece in the project that became this book, I was dumfounded. The subject of that article, the Act for the More Easy Recovery of Debts in His Majesty’s Plantations and Colonies in America, enacted by the British Parliament in 1732, was a major, unilateral revision of property rights to land in the colonies, though not in Britain. The act not only made it possible for creditors of colonial borrowers to seize land in payment of unsecured debts, but it stripped future generations of property rights that had long been secured to them under English law. How could it be that a redistribution of this importance was so little known until Priest called attention to it? How could it have been so completely ignored in writing on colonial political, legal, and economic history, especially in accounts of the British impositions that led to the Revolution? Much more minor afflictions, such as Virginia Governor Dinwiddie’s attempt in 1752 to levy the fee of one pistole for sealing land patents, have been singled out as precursors to the rebellion: “Liberty & Property and no Pistole!” Priest’s work not only remedies this omission, but by connecting the debt recovery act to later Revolutionary-era events, provides a deeper understanding of the protests over Dinwiddie’s fee, as well as over later, more consequential, levies such as the Stamp Act
Presidential Signing Statements in the Federal Bureaucracy
No full textVol. 39:434 2022This Note examines the relationship between presidential signing statements and administrative decision-making over the Obama and Trump presidencies and from a variety of institutional angles, updating previous studies rooted in a narrow set of observations from the mid-2000s. It identifies occasions where presidents, agencies, and other Executive Branch actors have referenced statements in the course of justifying inactions, rules and regulations, and legal characterizations of executive entities. In moving the focus beyond a strict causation approach to measuring influence, which suffers from proof limitations
and indeterminacy, the Note offers a more modest formulation of statements’ contextual and atmospheric role in shaping bureaucratic decision-making. It also brings these observations into conversation with debates over the interpretative uses of statements in separation-of-powers disputes
CONSTITUTIONAL MEMORIES
No full textMany arguments in constitutional law invoke collective memory. Collective
memory is what a group-for example, a religion, a profession, a people, or a
nation-remembers and forgets about its past.1 This combination of remembering
and forgetting helps constitute the group's identity and structures its values and its
commitments. Precisely because memory is selective, it may or may not correspond
to the best account of historical facts
Evaluating Project Need for Natural Gas Pipelines in an Age of Climate Change: A Spotlight on FERC and the Courts
No full textVol. 38 Issue 2As the Biden administration attempts to make climate change the focus of many aspects of its domestic and international agenda, an independent federal regulatory agency—the Federal Energy Regulatory Commission (FERC)—finds itself at the center of debates over the nation’s energy policies and greenhouse gas (GHG) emissions. Under Sections 4 and 5 of the Natural Gas Act of 1938, FERC has the authority and obligation to ensure that rates, charges, and rules relating to interstate natural gas sales and transportation are just, reasonable, and nondiscriminatory. Under Section 7 of the Natural Gas Act, FERC also has the authority to grant certificates for construction and operation of interstate natural gas pipelines that are needed for the “present or future public convenience and necessity.” FERC’s longstanding practice under its 1999 “Policy Statement on Certification of New Natural Gas Facilities” for pipelines is to assess whether there is a “market need” for the proposed pipeline project before addressing other considerations such as adverse impacts on existing pipeline company customers, other pipelines in the market and their customers, and landowners and communities
Democratizing Behavioral Economics
No full textThe article explores an approach to measuring well-being in behavioral law and economics (BLE), called the democratic BLE. Topics discussed include the role of BLE in revolutionizing policymaking, the differences between economists and ordinary people, policy recommendations being made by traditional law and economics, the tendency for thinkers influenced by BLE to insert personal and class biases into their arguments, and the agenda for reform proposed by democratic BLE
WHY WORDS?
No full textWhat’s new in my new book, The Words That Made Us?
What’s missing? What’s next? If my tale is anywhere close to
correct, what tales told by other narrators must be rejected or
revised?
At heart, the biggest news is that a book such as this now
exists, as it did not before—a book that brings together between a
single set of covers the main constitutional episodes of the fateful era
in which America became America.
As I write the words of this postscript, in the late summer of
2020, I am frankly worried about the widespread constitutional
illiteracy that surrounds me, illiteracy of young and old, left and
right. A nation that does not understand its history is like a person
who suffers amnesia. Without a strong memory of one’s own past,
how can a person live a meaningful life? Without a deep
understanding of our collective constitutional past, how can
Americans live together? In 1860–1861, South Carolinians forgot
what South Carolinians had in fact plainly agreed to in 1787–1788:
an indissoluble union. And the war came