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Valuing the Future: Legal and Economic Considerations for Updating Discount Rates
No full textVol. 39 Issue 2Discount rates reflect the commonly held belief that a dollar today is worth more than a dollar tomorrow. Therefore, consistent with observed human behavior, governments use discount rates to weigh and compare present versus future costs and benefits in their decisions. The choice of discount rates greatly impacts which government regulations are cost-benefit justified, particularly for regulations with long-term benefits, as in the context of climate change. Though the U.S. government has historically revised its recommended discount practices several times, the current recommendations for a 3% consumption rate and a 7% capital rate have been enshrined in federal guidance without revision since 2003, despite significant changes to society, markets, and the economics literature. This article details the compelling economic evidence and legal principles that support revising federal guidance on discounting. In the economics literature, multiple lines of evidence point to a central consumption rate below 2% as appropriate in government decisionmaking—and capitalbased rates as largely inappropriate for many policy contexts—particularly in rulemakings with inter-generational implications, like climate change. Legal principles support such revisions. Statutes and executive orders charge agencies to base decisions on the best available data and to consider future generations’ welfare. Though agencies must thoroughly explain their discounting choices, agencies have discretion to lower their discount rates consistent with updated evidence and ethical obligations. Agencies especially must justify any choices to apply different discount rates to different contexts or effects, but a declining discount rate framework can consistently harmonize agency practices and so put agencies on sound legal footing in their approach to valuing the future
How SPACs Made Old Things Old Again
No full textVol. 40:13 2022When the SPAC boom began in the summer of 2020, a common way to explain the phenomenon was to say that SPACs were something new. SPACs raised 97 billion in just the first three months of 2021.2 They spread so rapidly that the public had little way of making sense of them other
than to think that they represented a novel innovation, a kind of contagion for which American finance had no previous immunity. The SPAC boom started at almost the exact moment the American public began locking down against
COVID-19—starting a process of viral replication in the financial markets to mirror the one happening in cities.
But like COVID, SPACs were not altogether new—they evolved from creatures that came before. And like a real virus, SPACs are now living through a cycle of spread, response, and equilibrium that has also played out for its evolutionary ancestors. The essays in this online symposium take stock of some aspects of this cycle and offer suggestions for how to deal with it. As the legal scholar and former SEC official Henry Hu has argued, the cycles of novelty and innovation in finance are actually quite old.3 What pass as “innovations” are often just modifications that merely liberate existing practices from regulation
by pulling them out of their regulatory categories. These innovations grow in popularity and then eventually produce the same problems the old regulations were designed to address, until the new innovations invite new regulations and new skepticism. By repeating many of the failures and successes of other innovations that came before, SPACs are taking this old cycle and making it old again
Confiscation Nation: Settler Postcolonialism and the Property Paradox
No full textVol. 33:2Capitalist from the beginning. That is the emerging consensus about early America. Just a generation ago, many historians of law and economy sought instead to locate the moment of transition from community-based economies to market capitalism. The “great transformation” was dated variously, but the American Revolution often provided a key to the shift. Those scholars, in turn, were reacting against the consensus historians of the Cold War era, who tended to find broad agreement in the sources that politics, law, and society worked in tandem to generate economic growth. Now, a version of that consensus is returning. Historians today, however, find more conflict and exploitation in their sources. Perhaps the most striking departure from the old consensus is the prominent place of slavery in the new histories of capitalism. Another notable difference is the role of the Revolution—or its absence. Capitalism appears to have emerged almost fully formed in the colonial period, with changes to its legal structure representing functional adjustments to satisfy the needs or interests of market participants. But was early American politics just a pass-through device for wealth-maximizing private interests? Did politics and especially political ideas matter for the development of American economic institutions? And did the American Revolution have any effect on the structure of the market
A Glimpse of Early Modern Governance in Claire Priest’s Credit Nation
No full textVol. 33:2Claire Priest’s remarkable book serves up a whole new view of commercial relations in the colonies that were to become the United States. Her striking revelation of the importance of slavery in colonial commercial innovation will undoubtedly catch the attention of readers and reviewers, coming as it does at a moment when the history of slavery has come under an especially searching spotlight. A second theme that will capture attention runs through the entire book: the countervailing efforts of colonial entrepreneurs to borrow and thus take potentially wealth-producing risks while also leavening risk with now-obsolete property devices like entailed fees.
Both these themes necessitate revisions of conventional views. The first revision, among others, concerns the geography of colonial commercial growth, which, as Claire reveals, very much involved trafficking in enslaved persons. The conventional view of colonial entrepreneurship is that the major location was in the north: Yankee clippers plying the seas, Ben Franklin types setting up print shops, Paul Revere producing silver goods, and so on. But in Claire’s book, the major financial innovators were the southern planters, taking on debt to invest in what looks like industrial agriculture—staple crops like indigo and tobacco—and for that purpose pledging not only their land as surety but their slaves as well
ELEVATING TRUST IN PROSECUTORS: ENHANCING LEGITIMACY BY INCREASING TRANSPARENCY USING A PROCESS-TRACING APPROACH
No full textThe public's trust in legal authorities has declined precipitously in recent years, along with a slip in the perceived legitimacy of these authorities. Prosecutors are no exception. Amidst growing debate about their contributions to social His like mass incarceration, prosecutors have faced mounting pressure for greater accountability in their decision-making. Studies onthepolice and courts provide insightinto apossible solution. This body Of work has long shown that a critical framework through which the public views legal authorities is the perceived fairness of their decisionmaking processes, including the provision of explanations these authorities provide for their legal decisions. Thus, accountability, legitimacy, and trust in the eyes of the public rests, in part, on evaluating the fairness of decisionmaking processes, which itself requires the ability to distinguish between legal authorities' use of what the law and the public consider appropriate and inappropriate criteria when making legal decisions. Such evaluations can only occur when the factors that shape these decisions are known. Therefore, transparency in legal authorities' decision-making is core to the project of maintaining and building legitimacy and trust. However, as scholars have observed, prosecutorial decision-making largely occurs within a black box, rendering prosecutors' lack of transparency an obstacle to accountability, and in turn, legitimacy, and trust. In this Essay, we argue that an empirical methodology called "processtracing" can peer inside the black box of prosecutorial decision-making to help identify the factors that shape prosecutors' legal decisions, thus increasing transparency in their decision-making overall. As such, this methodology is helpful in several ways. First, it allows prosecutors to compare whatfactors actually drive their charging decisions to a normative legal framework so that they can adjust their behavior to better adhere to such standards. Second, it enables prosecutors to compare those factors with what the public considers to be important regarding prosecution. And third, it supplies prosecutors with a data-driven way to explain the reasoning behind their decisions to the public. Thus, prosecutors can highlight where their decision-making aligns with the public's views of prosecution to reinforce accountability, legitimacy, and trust. Where alignment with the public is weak, prosecutors can identify the legal factors influencing their decisions to promote accountability, legitimacy, and trust. Looking to the future of prosecution, a process-tracing approach provides a basis for a more nuanced, data-driven way to address prosecutorial reform - that is, reform grounded in the idea of building authentic trust between the public and legal authorities like prosecutors
Cost-Based California Effects
No full textVolume 39-3The “California Effect” is a recurring trope in discussions about regulatory interdependence. This effect predicts that businesses active in multiple jurisdictions sometimes adopt the strictest regulatory standards that they face in any jurisdiction globally, even if the jurisdiction’s law does not require global compliance. As the argument goes, California Effects often occur because firms find it less expensive to comply with the most stringent standard everywhere than to provide different products to consumers in different jurisdictions based on the relevant local standards. There is a substantial literature that assumes the existence of such Cost-Based California Effects both at the interstate level in the United States and the international level, where they often appear in connection with the EU’s regulatory activities under the moniker “Brussels Effect.” However, empirical evidence documenting these effects’ existence and strength is scarce.
This Article makes two contributions. On a theoretical level, it argues that Cost-Based California Effects should be treated separately from other forms of cross-jurisdictional influence, as their normative implications differ. On an empirical level, it reports results from a case study investigating the existence of these effects in data privacy law, a field in which they have been said to be particularly influential. The analysis tracks changes in almost 700 webpages’ privacy policies in order to reveal the extent to which EU law (which is usually described as comparably stringent) influences transactions between U.S. online
services and consumers. The analysis covers two years starting in November 2017, a period that saw the enactment of a new, sweeping data privacy law in the EU. Contrary to what many assume, the analysis reveals that most U.S. online services treat U.S. consumers and EU consumers differently, with EU consumers enjoying higher levels of protection. This result indicates that the impact of EU law on the operations of U.S. online services is limited. Moreover, it suggests that Cost-Based California Effects might be less important than is commonly assumed, at least in data privacy law
Delegating Climate Authorities
No full textVol. 39 Issue 2The science is clear: the United States and the world must take dramatic action to address climate change or face irreversible, catastrophic planetary harm. Within the U.S.—the world’s largest historic emitter of greenhouse gas emissions—this will require passing new legislation or turning to existing statutes and authorities to address the climate crisis. Doing so implicates existing and prospective delegations of legislative authority to a large swath of administrative agencies. Yet congressional climate decision-making delegations to any executive branch agency must not dismiss the newly resurgent nondelegation doctrine. Described by some scholars as the “most dangerous idea in American law,” the nondelegation doctrine prohibits Congress from
delegating its legislative authority to the executive branch absent an intelligible principle to guide implementation. Failure to fully take into account possible nondelegation challenges could stop forward-looking climate action in its tracks.
This Article addresses the contours of the nondelegation doctrine as applied to future climate action. In doing so, it argues that climate change and its associated impacts are a complex collective action problem that implicate Article II authorities independent of congressional lawmaking. These authorities may provide an avenue through which climate action can be taken irrespective of the limits imposed by the nondelegation doctrine. As prospective climate solutions emerge, the nondelegation doctrine lurks in the background. Climate action must therefore be reconciled with presidential foreign relations, national
security, and emergency authorities—three areas where the President is afforded significant, but not absolute deference
WHAT EJ HAS TO DO WITH IT: VICKI BEEN'S EMPIRICISM IN THE FORGE OF ENVIRONMENTAL JUSTICE
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PACT: An Oral History
No full textThis oral history documents the origins and trajectory of a group run by incarcerated men called the Project for A Calculated Transition (“PACT”) at Green Haven Correctional Facility in Stormville, New York, and their community partnership with students at Yale Law School. Incarcerated activists at Green Haven—a maximum-security prison—created PACT in the wake of the Attica Uprising. While PACT welcomes men of all backgrounds, most of the members of PACT are men of color who grew up in neighborhoods devoid of state investment, and most are serving long sentences for serious crimes. Meanwhile, most, but not all, of the Yale members have been white students from economically privileged communities, and their group includes all genders. The partnership has persisted since 1978.
Over the past forty-three years, this community has generally met every other Monday night to discuss political, legal, and moral issues as peers. PACT’s partnership with Yale Law students has most recently consisted of a reading group where the incarcerated men lead the discussion, though in the past Yale students and PACT members have also taken turns leading discussions. Although the format of the meetings has changed, throughout the years, the members have challenged each other to change their perspectives and forge relationships built on honesty and respect. There have been some years where Yale students were unable to enter the prison, including the period between the start of the COVID-19 pandemic in March 2020 and the submission of this paper in January 2022
Sex, Suffrage, and State Constitutional Law: Women’s Legal Right to Hold Public Office
No full textVol. 33.2:110On January 20, 2021, Kamala Harris was sworn in by Justice Sonia Sotomayor as the nation’s first woman Vice President. This occasion, marked by women of color holding two of the most crucial roles in the federal government, would have been unthinkable to many for most of United States history. While the political efforts necessary to reach this moment have been studied in great depth, the legal challenges to women’s officeholding have been overlooked and
even denied.
Relying on extensive historical research, this Article is the first to examine how women advocated for more than a century for the legal right to hold public office through state-level litigation, constitutional amendments, legislative lobbying, and public commentary. From the 1840s through the 1940s, women in many states were excluded from holding even minor public offices because of state constitutional language and judicial holdings. Opponents of women’s officeholding feared that permitting women to assume posts would deprive men of their rightful opportunities, radically alter gender norms, and fuel the fire of
the women’s suffrage movement. The nation’s first women lawyers were particularly active in challenging officeholding restrictions, with results varying by region and reflecting distinct legal, political, and social cultures. In some states disenfranchised women could assume only a narrow range of offices related to education, children, and charity, while in other locations they could hold a wide array of appointed posts and even elected positions for which they could not vote. After women were enfranchised through either state constitutional provisions or the Nineteenth Amendment, their officeholding
eligibility remained contested in jurisdictions that did not expressly authorize it.
Recovering the history of women’s legal right to hold public office challenges three major conventional wisdoms. First, it undermines the commonplace claim in scholarship on women’s legal and political history that officeholding was not a meaningful part of women’s advocacy or experiences until after ratification of the Nineteenth Amendment in 1920. This Article’s
account instead shows that proponents of women’s rights have long demanded women’s access to public posts, and women held positions for more than a half century prior to the federal suffrage amendment. Second, this Article challenges
prominent scholarship—mostly focused on interpreting the Reconstruction Amendments—that treats officeholding and suffrage as inevitably paired. Foregrounding women’s history and state-level advocacy emphasizes the legal possibility and practical reality of severing these rights. Third, and relatedly, the Article calls for more attention to state constitutional law and regional variation. The women’s officeholding story clearly demonstrates how focusing on one geographical area, providing a single national account, or limiting analysis to the federal level obscures essential developments in securing rights