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Caribbean “Credit Nations”: Consignment Economies in the British West Indies
No full textVol. 33:2A central tenet of English property law has been the protection of land and the interests of potential interest holders in such land. For centuries, creditors could not reach land to satisfy debts either in the British Isles or in the colonies. Against this background, Claire Priest delineates how the British Parliament, in a series of deeply controversial moves culminating in the Debt Recovery Act of 1732, modernized law in the American colonies so that it privileged creditors. More specifically, the Debt Recovery Act made it possible for creditors of colonial debtors to execute debt judgments on real property as well as on enslaved people for the recovery of debts. Colonial governments in the American colonies, building on this legislative framework, also promoted innovations that would allow creditors to reach both land and slaves more easily. For example, several colonial statutes were passed to make clear that enslaved persons were property that could be utilized as collateral for loans, and also auctioned, in the event that debtors later defaulted
Brown and Red: Defending Jim Crow in Cold War America
No full textIt would be difficult to overstate the centrality of Brown v. Board of Education to American law and life. Legal scholars from across the ideological spectrum have lavished more attention on that Supreme Court decision than any other issued during the last century. In recent decades, the standard account of Brown has placed that most-scrutinized opinion in a geopolitical context. Brown, the standard account maintains, must be viewed as a product of the Cold War era. By the 1950s, the persistence of laws codifying racial subordination had become an embarrassment for the United States on the global stage. The U.S. effort to defeat communism around the world thus rendered the recognition of civil rights for Black Americans a Cold War imperative. This Article complicates and challenges that account by exploring the central role that anticommunism played in segregationists' opposition to Brown and civil rights. Throughout most of the twentieth century, a broad array of Americans contended that preserving Jim Crow was a Cold War imperative in its own right. For this group, anticommunism and segregation were not just compatible, but inextricably intertwined. Their ranks included northerners and southerners alike: politicians, jurists, columnists, and ordinary citizens. White supremacists did not invoke anticommunism merely as a disingenuous ploy to combat Brown. Both long before and long after 1954, anticommunism helped to shape the contours of segregationist thought. The defenders of Jim Crow assailed integration as a product of communistic central government authority. They insisted that racial equality would create discord within the United States, just as the Soviets desired, and that civil rights activists were tainted by communist affiliations. Many segregationists viewed themselves as committed Cold Warriors, undertaking closely connected fights against both a foreign ideological threat and a domestic social one. As such, the Cold War represented not only a divide between the United States and the Soviet Union; it also reflected a debate within the United States over the relationship between racial justice, national security, and foreign policy. Understanding that segregationists viewed their cause as a Cold War imperative recasts dominant views within legal academia, where this essential component of Brown's geopolitical context remains underappreciated. While it is tempting to dismiss every segregationist invocation of anticommunism as the product of either irrationality or opportunism, it would be a mistake to do so. Linking segregation with anticommunism transformed the defense of Jim Crow from a regional priority into a national one. Anticommunism also helped resolve a core tension in the segregationist belief that Black citizens did not actually want integration, allowing civil rights lawsuits to be attributed to communist agitation. Reckoning with this significant element of the civil rights era, this Article thus illuminates the logic of a racist worldview. In so doing, it provides a fuller, more accurate portrait of a critical period in constitutional history, of the complex dynamics undergirding legal change, and of the malleable, tenacious character of racism in modern America
Property in Land in the Early United States
No full textVol. 33:2Claire Priest’s impressive book emphasizes the lack of legal restrictions on the remedies of creditors in what would become the United States. She stresses Parliament’s passage of the Debt Recovery Act in 1732, a distinctly pro-creditor enactment. An important part of her narrative addresses security interests in slaves. By 1785, South Carolina had established a county system for the voluntary recording of mortgages on slaves. The focus of this essay, by contrast, is entirely on property in land, including mortgages on land. Priest’s book cites Alice Hanson Jones’s finding, based on an examination of probate records at the time of the Revolution, that real estate, not slaves, constituted a solid majority of personal wealth, even in Southern States. Priest asserts that Jones found that “land constituted 81.1% of wealth in New England, 68.5% in the mid-Atlantic region, and 48.6% of wealth in the South, with slaves constituting 35.6%.”
There is a small literature on real estate transactions in early America. Standouts include John Frederick Martin’s Profits in the Wilderness (1991), on town formation in seventeenth-century New England, and Elizabeth Blackmar’s Manhattan for Rent, 1785-1850 (1989). Nonetheless, much remains to be done. Land records, rarely explored by historians, provide potential troves of information. In this brief essay, I comment on two topics related to real estate: the role of land speculators in the eighteenth century and the development of Manhattan real estate during the lifetime of John Jacob Astor, who at this death in 1848, was one of the richest men in the world
A Better Guard for the Henhouse: Should Creditors’ Committees Control Estate Litigation?
No full textYale Journal On Regulation
Vol. 40:1 2022In October 2021, Senator Elizabeth Warren and several cosponsors
introduced a revised version of the Stop Wall Street Looting Act. First
introduced in 2019, the proposed legislation targets a range of perceived abuses
by private equity firms ranging from the carried interest tax “loophole” to the
lack of risk-retention requirements for securitized debt. Among several new
proposals to stop the “looting” of portfolio companies is one of particular interest
to bankruptcy practitioners: giving unsecured creditors’ committees the
exclusive right to bring or settle certain lawsuits in bankruptcy
Reimagining the Renewable Energy Transition: The Potential for Mandatory Corporate Due Diligence to Ensure Respect for the Right to Free, Prior, and Informed Consent
No full textThe urgency of the climate crisis demands a rapid transition away from fossil fuels and toward renewable energy. However, renewable energy infrastructure projects and mining for the minerals required for renewable energy systems have resulted
in reports of human rights violations and clashes with local communities living on and adjacent to the lands where these projects are taking place. At the crux of several of the clashes with local communities are claims that renewable energy
projects and land acquisitions have been initiated without meaningful community participation or respect for indigenous peoples' or local communities' right to free, prior, and informed consent (FPIC) to these projects. Indigenous peoples' - and
increasingly also local communities' -right to FPIC for development projects that will affect or take place on their land is solidifying as a norm of international human rights law. Still, the implementation and enforcement of the right to FPIC
have faced challenges, as indigenous peoples and local communities often lack the political power to enforce these obligations without governmental backing, particularly when confronting powerful multinational corporate interests or when operating in countries with weak rule of law. Given the inadequacies of existing voluntary corporate commitments to protect human rights, legislative enactments to ensure that companies comply with human rights standards -including respecting the right to FPIC - are necessary. Mandatory corporate human rights due diligence laws, if these laws codify robust FPIC obligations and create
stringent enforcement mechanisms, present a unique opportunity to strengthen the right to FPIC for indigenous peoples and, potentially, to extend this right to other local and marginalized communities.
This Note analyzes the state of legal jurisprudence on the right to FPIC in renewable energy development and the ways in which the enactment of mandatory corporate human rights due diligence laws could provide a novel mechanism to enforce the right to FPIC in the renewable energy sector. First, this Note reviews the historical development of the right to FPIC in international human rights law. Second, this Note provides a novel comparative analysis of how courts and quasi-judicial
decision-making bodies have applied the right to FPIC to the renewable energy sector through four legal case studies. Third, this Note explores the current and proposed implementation and enforcement mechanisms of mandatory corporate human rights due diligence laws and the potential for these mechanisms to strengthen the right to FPIC. Finally, given identified challenges and drawing from best practices in existing and proposed laws, the Note sets out five recommendations for including the right to FPIC in mandatory corporate human rights due diligence laws in the future
(Un)stable BITs
No full textVol. 47: 247Over forty percent of all foreign direct investments (FDI) in 2020, representing 76 billion in damages. Recent and unprecedented shifts
in the investment treaty network include mass treaty terminations by India (the fifth-largest recipient of FDI in 2020) and the partial removal of ISDS in the United States-Mexico-Canada Agreement.
This Article explores how initial and evolving preferences over BIT provisions of each signatory to a BIT may have influenced terminations and renegotiations in the investment treaty network. One of the primary challenges of studying negotiated instruments like contracts or treaties is that the observed outcome is a convoluted reflection of each country's preferences, filtered through negotiation. A primary contribution of this Article is the method we develop to disentangle each country's preferences for its BITs. We do this by leveraging the entire treaty history of each country to identify consistent drafting patterns. We then use these patterns to infer a set of preferences for each country. This method allows us to measure negotiation input, bargaining position, and evolving preferences for each signatory in the investment treaty network. We find some evidence that a
signatory's input at the negotiation stage, evolving bargaining position, and changes in preferences over BIT provisions following treaty ratification have contributed to BIT renegotiations and terminations. Our findings help explain the wide variation among and within countries with respect to BIT outcomes, which existing literature fails to do. The findings suggest that as countries become more sophisticated and update their preferences, we can expect to see more turnover in the investment treaty network. More assistance from developed countries for developing countries will aid the latter in treaty drafting and preference formation
and may increase the longevity of investment protections and the overall stability of the investment treaty network
STALE REAL ESTATE COVENANTS
No full textSince the 1970s, covenants running with the land have tethered a large majority of the new housing units produced in the United States. These private restraints usually continue for generations, until a majority or supermajority of covenant beneficiaries affirmatively vote to amend or terminate them. Covenants interact with public land use controls, particularly zoning ordinances. Zoning politics tends to freeze land uses in urban America, particularly in existing neighborhoods of single-family homes. This Article investigates to what extent covenants exacerbate the zoning freeze. It provides a history of the use of private covenants and suggests how drafters, judges, and legislators might address the risk that covenants will become obsolete
Eliding Original Understanding in Cedar Point Nursery v. Hassid
No full textVol. 33:2Cedar Point Nursey v. Hassid is a triumph of the conservative majority of the Supreme Court. In holding that temporary entries to land are takings without regard to duration, impact, or the public interest, the Court fulfilled the decades-long ambitions of anti-regulatory advocates of private property. Progressive and conservative scholars agree that the decision runs roughshod over precedent. This essay focuses on a less obvious aspect of Cedar Point: its flagrant departure from original understanding.
American law at the time of the founding recognized a robust right to enter private property. Trespass law did not even reach entries unless they caused economic damage, and statutes often placed additional limits on suits for unauthorized entry. Starting with Massachusetts Bay’s 1641 Liberties Common and continuing well into the nineteenth century, colonies and states also created numerous formal entitlements to enter. Such rights were enshrined in the constitution of Vermont—the first American constitution to include a takings provision—and the Anti-Federalist report that led to the Bill of Rights. With or without constitutional guarantees, courts dismissed challenges to these entries as frivolous, contrary to American culture, even a rejection of what made the new nation a land of liberty
The Orthodox, and Unorthodox, RBG: Administrative Law and Civil Procedure
No full textJustice Ginsburg was not usually a doctrinal revolutionary when it came to the fields of administrative law and civil procedure. Her adherence to precedent and careful attention to the proper division of labor among the branches restrained the Justice when confronted with modern doctrines of administrative deference and the creative use of class actions to address nationwide injuries. She also loved black-letter procedure: the strong confines of the Federal Rules, the domains in Congress's control, and the benefits derived from wellhoned, careful doctrinal moves. But sometimes, she met the moment, and took a leap. Whether it was providing regulatory beneficiaries access to the courts or striving to modernize the Court's personal jurisdiction doctrine, a Justice loyal to doctrinal orthodoxies was, every once in a while, someone we might call "the unorthodox RBG.". In administrative law, she was not an early adherent to agency deference in statutory interpretation: The Supreme Court unanimously reversed then-Judge Ginsburg in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. Even as Justice Ginsburg came to align herself with Chevron's proponents, she saw an active role for the courts in safeguarding Congress's power over agencies. Her deference typically paired a belief in the expertise of agencies with a real-world understanding of hard policy problems that she viewed agencies were better able than courts to address. She did not, however, hesitate to question "bureaucratic arrogance" on substance or procedure when agency action hurt groups she cared deeply about. In civil procedure, Justice Ginsburg marked a huge path in the field of personal jurisdiction, where she clarified and redefined the law of general jurisdiction and helped frame a more modern approach to specific jurisdiction. She also loomed large in class actions, always aware of the special power of collective litigation. What links Justice Ginsburg's work in these two areas--class action and jurisdiction--is her effort to confront the challenges the modern national economy poses for the modern procedural landscape. Her juris-diction jurisprudence rose to meet that challenge. Her orthodoxy in the class action context may have proved too strict, however. Her unbending reading of Federal Rule of Civil Procedure 23's class action requirements helped give rise to today's highly unorthodox forms of aggregate litigation, including multidistrict litigation, with the very pathologies she had hoped; to avoid by adhering to the Rule
Race and Guns, Courts and Democracy
No full textThe article discusses the Racism in gun regulation raises concerns about the U.S. Supreme Court's expansion of Second Amendment rights, and it highlights the lack of equal protection oversight in the criminal justice system. It suggests that Democratic agents can ensure equal protection by coordinating racial justice goals, pursuing gun violence-free law enforcement, and reforming public safety practices