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ESG Regulatory Framework for Asset Managers in the EU, UK, US, and Singapore: The Role of Social Knowledge and Value Judgement in the Asset Managers ESG Business Strategy
Full text linkThis paper proposes a methodological analysis of ESG regulatory developments across the E.U., U.K., U.S., and Singapore jurisdictions, with the aim of defining a strategic model for asset managers to competitively position their ESG operating model globally. We analyse the way regulatory initiatives interact with the market participants’ conventions resulting in two fundamental paradigms which asset managers should consider: 1) how regulation may innovate and contribute to the creation of technical knowledge on the ESG framework and 2) how the cognitive process of coordination between moral values and adaptation to the regulatory innovation influences individual decision-making and corporate strategies on ESG matters
The Renaissance of Private Law
Full text linkCrisis is the new normal. Between global warming, the opioid pandemic, bursts of gun violence, and political instability fueled by fake news, it is hard to remember a time when we were not facing a major catastrophe. Still more troubling, there is a growing sense that our political and regulatory institutions are faltering in their ability to offer effective responses to the incoming crises. The rapid pace with which new problems emerge, together with growing political polarization stymie regulatory and legislative action, resulting in an inability to address contemporary challenges. Against this gloomy background, we posit an unlikely hero: private law. Thus, recent bursts of social activism litigation have led to impressive legal victories and multi-billion-dollar awards in areas ranging from gun control to the climate crisis. These achievements go a long way towards fashioning better legal responses to contemporary crises, where governmental regulation has failed to do so. These victories are doubly surprising, considering the supposed dominance of public law and regulation over private law as the primary legal framework for promoting broad policy goals. Thus, in the age of regulation we now live in, one would expect private law to take a back seat, as the regulatory machinery, now more elaborate, capacious, and fine-grained than ever, takes charge. In this Article, we show that the exact opposite has happened. Contrary to expectations, private law not only remains relevant but often emerges as the most effective response to deep contemporary problems. To explain this seeming puzzle, we offer a comparative institutional analysis that highlights multiple advantages that private law possesses relative to regulation. The unique structural features of private law make it more flexible and adaptable, able to offer responses to rapid changes. Private law institutions, for various reasons, are also less susceptible to capture and can resist the effects of political polarization. Indeed, the rise in the importance of private law is due primarily to the decline of our political institutions. Not only does private law have various structural advantages over regulation, but it is also more democratic in that it provides a platform for a wealth of diverse preferences. Drawing on these insights, we move to our normative mission. We propose a series of procedural and substantive reforms that would facilitate and enhance the use of private law doctrines as legal responses to contemporary crises. Specifically, we explain how class actions, qui tam suits, and the cy pres doctrine can be improved to empower individual agents of change. We also call for the relaxation and modification of doctrinal elements of causation and harm. Finally, we come full circle by advancing a comprehensive account of the interaction, synergies and complementary effects between regulation and private law
The Dangers of Decoupling Safety and Effectiveness in Drug Approval
No full textIn 1962, Congress amended the Federal Food, Drug, and Cosmetic Act to require that companies demonstrate that their drugs are not only safe but also effective, and to expressly prohibit the US Food and Drug Administration (FDA) from approving drugs not supported by “substantial evidence” of effectiveness. Over the past 60 years, proponents of “therapeutic choice” have periodically challenged this efficacy criterion, giving rise to debates around laetrile, HIV drugs, Alzheimer disease drugs, psychedelics, and more
Manufacturing Good Faith
Full text linkIn 2022, the Delaware Supreme Court decided Boardwalk Pipeline Partners, LP v. Bandera Master Fund LP, 288 A.3d 1083 (Del. 2022), allowing a limited partnership entity to conclusively establish good faith by relying on a legal opinion that merely stated it would be reasonable to rely on another firm’s opinion—one that had been deemed an inadequate “sham Opinion” by the Court of Chancery.
This Comment argues that the Boardwalk decision is a new high-water mark in the Delaware Court’s “contractual flexibility” jurisprudence. Despite being framed as adherence to a contractually defined standard of conduct, the Boardwalk opinion signals Delaware courts’ increasing willingness to abdicate their role as arbiters of reasonableness in implied covenant disputes. Courts instead allow parties to pay lip service to the requirement of good faith and fair dealing through contractual provisions that practically eliminate it. This outcome creates a fundamental conflict of values between Delaware Supreme Court precedent and provisions of the Delaware Revised Uniform Limited Partnership Act disallowing elimination of the implied covenant of good faith and fair dealing.
As alternative entities like limited partnerships grow in prominence, protections for investors in these entities have rarely been more important. Yet in pursuing a jurisprudence that makes alternative entities more attractive to managers looking to customize (and minimize) their duties, Delaware courts risk undermining the alternative entity’s usefulness by making it excessively risky for investors. The newly condoned practice of whitewashing an inadequate opinion with a second opinion in order to manufacture good faith has the potential to eviscerate a layer of protection that investors have traditionally enjoyed—and the Boardwalk decision’s ratification of a lowered good-faith standard could apply beyond the limited partnership context
Projecting the Past into the Future of Constitutionalism: History, Atemporality, and American Society
Full text linkThe U.S. Supreme Court is increasingly asserting “history and tradition” as the standard to settle divisive constitutional debates on abortion, guns, and beyond. As scholars debate this shift, Jack Balkin’s book Memory and Authority stands out in exploring the role of history in American constitutionalism. However, its account should be situated in a larger sociohistorical context. This Article explores features of the historiography and social fabric of the United States that shed light on the distinctive weight of history in American constitutionalism.
In particular, the modern divide between living constitutionalism and originalism echoes two earlier divides in American history: the disagreement over the nature of “American exceptionalism” and the split of American Christianity into modernist and traditionalist currents. Even as societal polarization has surged in recent decades, Americans still tend to share a civil religion. This relatively bipartisan and ecumenical form of American patriotism or nationalism is rooted in the celebration of the Founding Fathers, although conservatives and liberals have again diverged on lessons to be learned from these past figures. Despite the transformations brought by modernity and a polarizing America, its constitutional debate has acquired an atemporal quality given the recurrence of divides over original intent and national traditions. Time passes, circumstances change, yet similar fractures persist.
Ultimately, a growing focus on the past may further incentivize reliance on history as a central method of constitutional interpretation, as parties may fear being at a disadvantage if they fail to do so. Besides the risk of instrumentalizing the past, this approach may undermine the value of history when it seemingly lacks an immediate practical purpose, thereby exacerbating the wider decline of the humanities. While historical research may certainly enhance legal decision-making, studying and understanding the past is inherently valuable
Piercing the Veil of Impunity: Twenty-Five Years After the UN Security Council Resolution 1325
Full text linkOn June 26, 2024, the Trial Chamber X of the International Criminal Court (“ICC”), in Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mahomed Ag Mahmoud, the first case on gender-based persecution under the Rome Statute, failed to convict Al Hassan of any gender-based crimes and acquitted him of the rape as a crime against humanity and war crime, sexual slavery as a crime against humanity and war crime, forced marriage as an inhumane act, and gender persecution as a crime against humanity. On the other hand, the Trial Chamber, by a majority, convicted Al Hassan, a Malian, of many of the other charges brought against him of war crimes and crimes against humanity committed between April 2, 2012, and January 29, 2013, in Timbuktu, northern Mali, controlled at that time by the armed groups Ansar Dine. Of the thirteen charges against humanity and war crimes under the Rome Statute of the ICC, six were sexual or gender-based offences. Although the Trial Chamber recognized the existence of these gender crimes, it found that there was insufficient evidence linking the crimes to the accused. The ICC Trial Chamber seems to have missed a long-awaited opportunity to recognize gender-based persecution as a crime against humanity.
Impunity for gender crimes denies survivors’ human rights and accountability. It also dilutes the gravity of gender persecution as a crime against humanity—rendering gender persecution a lesser crime than other war crimes and crimes against humanity. Despite good faith efforts on the part of the ICC Prosecutor’s Office to launch groundbreaking initiatives to advance accountability for the crime of persecution on the grounds of gender, including the Policy on the Crime of Gender Persecution of 2022, the ten Women, Peace, and Security Council Resolutions (“WPS”) that constitute the corpus of the WPS Agenda is not fully mined in advancing full accountability for gender crimes in international and domestic tribunals.
In January 2025, the ICC prosecutor’s application for arrest warrants against the Supreme Leader of the Taliban and the Chief Justice of the “Islamic Emirate of Afghanistan” for the crime against humanity of persecution on gender grounds is significant. As Valerie persecution on gender ground on its own—this is the only crime charged. So, the focus in this case is squarely and entirely on gender persecution.” Another important development is the way in which the Prosecutor has linked severe human rights violations, in this case, gender-based human rights violations, with crimes under the Rome Statute. As Oosterveld has argued, this case is “part of the course correction of the office of the Prosecutor after years of failing to secure convictions for gender crimes.
Don\u27t Go Chasing Litigation Funding Waterfalls
Full text linkProponents of third-party litigation funding argue that it is socially beneficial, helping parties bring meritorious litigation that otherwise would not be possible, due in part to the ability of the plaintiff to share risk with funders. But the reality of how some third-party funding contracts are structured belies this theory. Many such contracts include “waterfall” clauses whereby funders get paid back first upon successful case resolution. This leaves most of the risk on the plaintiff, the party usually least equipped to bear it. This is at odds with the prescription of standard economic theory, which suggests that the residual claimant should be the party best able to manage risk, in this case, the litigation funders. We introduce a simple, numerical model that captures this intuition and shows why “equity” contracts would be preferred by risk-averse plaintiffs. Moral hazard, adverse selection and funder agency costs likely all play a role in why waterfall contracts are used. We suggest three simple changes to funding arrangements that could ameliorate this situation. Counterintuitively, giving lenders greater power by allowing them to have input into settlement negotiations could lead to different contractual setups that shift the risk more to the litigation funders
The Psychology of Misleadingness: A Study and a Research Agenda
No full textTraditional contract doctrine, at least as it exists in the casebooks, seems surprisingly indifferent to the problems of deception. Contract law has one big move to protect against deception: a strict liability approach to breach that grants expectation damages whether the promise was untruthful or just optimistic. Unlike showing fraud in tort, which includes an intent element, the uniform approach of contract doctrine is to hold fraudsters to their promises whether or not the injured party can prove a promise was a lie. But once we move past contract’s big move—the plaintiff-friendly protection of the expectation interest irrespective of deceptive intent—the indifference to deception can be a doctrinal gift to the would-be deceivers
Uniform Interpretive Methodologies in Investor-State Dispute Settlement
No full textInvestor-State-Dispute-Settlement (“ISDS”) is the most used dispute resolution mechanism for resolving high-value international investment disputes worldwide. Yet, the ISDS mechanism is currently facing a full-scale legitimacy crisis that is largely due to contradictory awards and inconsistent legal reasoning. The ISDS legitimacy crisis becomes severe in the application of vague investment standards such as the Full Protection and Security (“FPS”) due to the lack of stare decisis.
For the first time, I propose the use of Uniform Interpretive Methodologies as a needed solution to resolve the ISDS legitimacy crisis of contradictory legal reasoning. In this article, I use the FPS as one of the vaguest ISDS standards to show that in the absence of the use of Uniform Interpretive Methodologies in ISDS, each Tribunal adopts a different legal reasoning that leads to a different outcome.
Emphasizing the ultimate importance of Uniform Interpretive Methodologies as a novel solution is indispensable as a first step toward resolving the current worldwide legitimacy crisis in international investment law. It also forces us—attorneys and legal scholars—to develop sustainable Uniform Interpretive Methodologies in the field for a possible future of AI- based arbitrators, which may not otherwise consider factors relating to fairness and justice in assessing foreign investment protection standards