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Borderline Sovereignty Disorder: China and the Law and Politics of the China-India Territorial Disputes
No full textInternational law is usually conducive to stability and peace. In the context of the China-India border and territorial disputes, however, international law exacerbates tensions and increases risks, as the incidents at the border in 2020 illustrate. Factors that explain this pattern include: the impossibility of ‘thick’ exercises of sovereignty in marginal, uninhabitable territory, the ambiguities of the human rights to self-determination of minority peoples and the dilemmas they pose for States’ central governments, China’s distinctive views on the invalidity of ‘unequal treaties,’ the relevance of various history-based claims to sovereignty, and the special place of the Five Principles of Peaceful Coexistence in international law. These law-related problems are compounded by political aspects of the border and territorial disputes and China-India relations, including: rising nationalism in both States, concentrations in and near disputed territory of minority populations with cross-border ties, China’s and India’s status as rising or renascent powers, and alignments with third-party States
The Great Unsettling: Administrative Governance After Loper Bright
Full text link“Chevron is overruled.” These three words surely captured more attention than any others in the U.S. Supreme Court’s thirty-five-page opinion in Loper Bright Enterprises v. Raimondo. For forty years, the Chevron doctrine had been virtually synonymous with administrative law. Now that the Court has taken a step that many scholars thought unfathomable even just a few years ago, speculation abounds about the possible downstream impacts of Loper Bright on both what agencies will be able to do in the future and how lower courts will respond when reviewing agency action. The vast majority of early expert commentaries suggest major changes to the future of administrative governance. This article aims to put this early prognostication into perspective. We explain why it is difficult to know whether or how much Loper Bright will matter at this time, if we will ever really be able to tell. Both as a legal text and as an intervention into the complex web of institutional politics that constitute administrative governance, Loper Bright contains ambiguities that significantly cloud the picture of the future. In fact, the decision might best be thought of as something of a Rorschach test inside a crystal ball: different people can see different things in it, especially when they try to envision what comes next. And what they see may reflect more of what they are primed to see by their own cultural or ideological predispositions than by an underlying, confirmable reality. That is not to say that Loper Bright has not changed nor will not change administrative law. Nor is it to say that it will not have influential effects on the future practice of administrative governance. Rather, it is to say that predictions about the decision’s impacts cannot be made with anything approaching precision or certitude. We know that Loper Bright has shaken up the legal landscape—much like we can feel an earthquake when it literally shakes up the ground beneath our feet. But just as with real earthquakes, it will take time to assess what the full impacts of the Court’s legal tremors have been—and on which particular structures. Rather than make any definitive predictions about Loper Bright’s unsettling consequences, lawyers and scholars alike would do well to be attentive to the multiple ways that Loper Bright may (or may not) shape the future of administrative governance. We suggest here some of those possible ways and explain why it is so difficult to predict Loper Bright’s precise impact on future administrative governance—a conclusion that may itself prove to be as unsettling as the overturning of a forty-year-old precedent itself
What is Habeas?
Full text linkThe debate about post-conviction habeas for state prisoners is long-running, heated, and conceptually hazy. A majority of the Court is dissatisfied with the broad swath of constitutional errors that can currently give rise to habeas relief. The way the Court sees it, a broad writ is inefficient, untraditional, and bad for federalism. The consensus among scholars is that habeas should be at least as broad as it currently is: a broad writ is just, historically pedigreed, and good for constitutionalism.
But is this debate about unwritten law or about statutory law? It is impossible to have a coherent argument without answering that question. Yet the question has gone unasked for decades. Some scholars and jurists (of both narrow- and broad-writ persuasions) frame things in common law terms. Others emphasize statutes but go on to treat those statutes more like vehicles for judge-made law than as binding commands.
This article argues that the issue is one of statutory law, and it offers the first thoroughgoing analysis of the relevant texts. When Congress extended federal habeas to state prisoners in 1867, it gave courts no power to discharge validly convicted prisoners. But by reenacting the same text in 1948, Congress may have ratified the Court’s then-existing interpretations of the 1867 Act. The result, if so, might be a middle-ground position—narrower habeas than petitioners would hope for, but broader habeas than the Court seems to want. In any event, and specific outcomes aside, a focus on statutory law offers new clarity to the habeas discourse
Lessons in Climate Derisking: The United States\u27 Failed Nuclear Renaissance
Full text linkAmeliorating climate change depends centrally upon transforming the energy system to run on clean energy. In turn, this transformation requires finding entities willing and able to build massive amounts of new clean energy infrastructure. The emerging U.S. strategy for inducing this buildout is via “climate derisking,” which involves using government incentives to cajole private investment in the clean energy transition by lowering the chances that such investments might not yield sufficient profits.
The United States’ landmark 2022 climate legislation, the Inflation Reduction Act (IRA), represents an unprecedented embrace of climate derisking. In this Article, we contend that an underexplored antecedent of the IRA provides critical insight into the promise and perils of a derisking approach to climate change. In the early 2000s, the United States attempted to create a nuclear power renaissance through legislative derisking, with disappointing results. All told, nuclear derisking legislation spurred nuclear investments in only a few southern states, where it ultimately resulted in tens of billions of dollars of wasted expenditures and little new carbon-free electricity.
After situating derisking within theories of infrastructure development, the Article chronicles attempts to revitalize nuclear power across four states: Georgia, South Carolina, Florida, and North Carolina, drawing from relevant legislation, administrative actions, court cases, news accounts, and interviews with key stakeholders. We then consider what lessons the failed nuclear renaissance offers the significant project of derisking clean energy now underway in the United States and beyond. The U.S. nuclear non-renaissance highlights a range of risks that accompany clean energy infrastructure development, including regulatory risks, scalar risks, temporal risks, and cultural risks. These multiple dimensions of project risk render the IRA’s cabined emphasis on financial derisking a limited method of driving the clean energy transition. We contend that far more direct public control over this infrastructural transformation is necessary to realize the scope of change that fundamental scientific imperatives demand. More immediately, we explore how the lessons that haunt nuclear power might be put to use in administering the IRA for maximum efficacy in achieving both its climate and broader social aims
The Class Certification of Exchange-Listed Options in Securities Class-Action Litigation
Full text linkClass-action litigation for fraud on the market typically focuses on purchasers and sellers of stock. Yet those that bought and sold options on the shares can likewise be harmed. Drawing from experience in In re Apple, Inc. Securities Litigation (N.D. Cal. 2022), the authors describe the issues related to including options traders in a certified class. This article explains how to overcome the obstacles to certifying an investor class that includes buyers and sellers of option
Warfare by Other Means: China\u27s Economic Lawfare
Full text linkLawfare—the use of legal tools to achieve goals that would normally be gained via armed conflict—has become both a frequently used tool among state and non-state actors and has garnered a great deal of scholarly attention. Yet there is one area of lawfare that it is frequently employed but has not attracted a high degree of interest among researchers: economic lawfare. Broadly defined, economic lawfare is the utilization of legal tools connected to economic activity to either harm an adversary’s economic standing or to coerce states into compliance. In recent years, China has become one of the largest utilizers of economic lawfare. This article considers the means, methods, and scope of China’s current lawfare campaign, while also offering predictions on what future economic lawfare tools Beijing might employ. I argue that thus far, China has largely rooted its economic lawfare campaign through a series of restrictions on trade. This is largely due to the fact that China has immense power over international commerce, and also has few other economic lawfare tools at its immediate disposal. In considering China’s future economic lawfare strategies, however, I suggest that Beijing may look beyond mere trade-related tools. As tensions with the West continue to deepen, President Xi Jinping’s government may look to expand its economic lawfare arsenal as a way to counter the U.S. and its allies without resorting to kinetic action. Chinese leadership may, for example, attempt to use more finance-based tools or might begin to wage economic lawfare in the Global South
Directors\u27 Duty to Act in the Best Interests of the Corporation Concerning Climate-Related Disclosures for Corporate Sustainability: The Australian Reform to Prevent the Worst
Full text linkClimate-related risks have now been a household name across the globe contributed by increasingly unprecedented natural calamities witnessed through extreme droughts, floods, melting icebergs surrounding Antarctica, rising sea levels, damaging biodiversity, and so on. The UN climate report has issued a “Red Alert” about global warming and the UN Climate Chief has warned that the world community has only two years to take action to prevent far worse risks caused by climate change. A recent study estimates that 23 percent of 12.6 million deaths globally were attributable to modifiable environmental factors, and 26 percent of these deaths were children under five years old. Alongside this human catastrophe, financial loss is also frightening. A 2015 study considered that the value risk linked with climate change to all global stock of manageable assets would be a staggering figure spanning from 43 trillion (USD) between the time of the study and the end of the 21st century. Large corporations are major greenhouse emitters. This article critically analyses the directors’ duty to “act in good faith in the best interests of the company and for proper purpose” connecting with the Climate-related Financial Disclosures (CFD) to be introduced in Australia from early 2025. Discussion of various corporate law theories and their implications for the duty at issue suggests that corporations are obliged to make such disclosures in the best interests of the company. The main provisions of the proposed CFD amendments to the Australian Corporations Act 2001 impose obligations on relevant corporations to include a “sustainability report” as an integral part of their annual reports. Directors must provide a declaration confirming the accuracy of such reports, whilst auditors must provide a report containing their opinions on companies’ sustainability reports. Failure in discharging their responsibilities properly may expose directors and auditors to both civil and criminal liabilities. It draws a conclusion that the proposed amendments would be helpful to reduce toxic gas emissions, protect all stakeholders, stimulate sustainability of emitters themselves, and finally prevent the worst. This endeavor, therefore, has as its aim to usher in an extension of the concept of mandatory CFD worldwide
Abortion Politics After Dobbs
Full text linkIn the two years since the Supreme Court decided Dobbs v. Jackson Women’s Health Organization, overturning the right to abortion established by Roe v. Wade, the scholarly response has coalesced into two major streams, corresponding to the two dominant themes in Justice Alito’s majority opinion. The first criticizes Alito’s narrowly originalist reading of the Due Process Clause of the Fourteenth Amendment. The second, sounding in democracy and political theory, questions Alito’s claim that Dobbs is democracy-restoring; several recent articles have charged that Court-sanctioned gerrymandering and voting restrictions may stymy efforts to protect abortion rights. This Article assesses this second set of claims. We emerge skeptical. Our own state-by-state analysis of gerrymandering patterns, as well as recent developments in the Court’s own jurisprudence, suggest that the democracy concerns are greatly overstated. Further undermining these concerns is the backlash that has followed the Dobbs decision, as manifested in a string of pro-choice victories in abortion-restrictive states. We situate these victories in the broader context of backlash to judicial decisions on controversial social issues, a comparison which highlights an important phenomenon: the side that gains the upper hand legally often loses ground in the social and cultural debate. Unlike other social issues such as same-sex marriage, however, permanent resolution of the abortion debate is impeded by significant obstacles including the incommensurable interests at stake and the inconvenient truths of pregnancy faced by each side. Based on the historical pattern of these and other controversial social issues, ranging from slavery to gambling and the manufacture and sale of alcohol, the Article predicts that pressure will mount for a federal response. American voters have never been content simply to live in a state whose stance on a contested social issue reflects their own view. They will be unhappy that other states diverge from their view, a tendency already reflected in abortion opponents’ efforts to chill travel to states that allow abortion and in abortion rights advocates’ efforts to facilitate abortions for pregnant people in states that ban abortion. The Article assesses the three federal approaches that have been proposed, considering both their political plausibility and the likelihood that the Supreme Court would deem them to be constitutional under the reasoning the Court employed in Dobbs
Ignorance is Strength: Climate Change, Corporate Governance, Politics, and the English Language
No full textThis article discusses the Orwellian nature of the current debate about the role of climate change in corporate governance, by juxtaposing the arguments of climate-denying commentators about corporate governance against the objective facts. Settled law allows corporations and institutional investors to take into account risk factors like climate change and may require them to consider those risks when they are directly material, as climate change is for many industries. If anything, the corporate response to climate change has been too tepid, and the pace of climate change and its corresponding harm is outrunning efforts to constrain it. No simple answer exists to addressing the dangers this Orwellian manipulation creates. But identifying that behavior and holding political elites responsible for a basic acceptance of fact and for consistently applying their stated principles is a necessary start