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Climate Last Resorts
No full textThe United States faces a climate crisis, an affordable housing crisis, and, linking them both, an insurance crisis. At the intersection of these concurrent predicaments lie a set of little-known but surprisingly impactful policies: state Insurer of Last Resort (ILR) programs. ILRs are state policies that provide property insurance when private insurance is unavailable, such as when private insurers determine that climate hazards are too risky to underwrite.
This Article argues that long-overlooked ILR programs are quickly becoming lynchpins for addressing some of today’s most pressing concerns around climate, housing, and insurance. Accordingly, ILRs bear urgent attention and reevaluation. In short, ILR programs are likely the most important policies that you’ve never heard of.
Building on this observation, the Article makes three main contributions. First, it identifies the power of ILR programs as intersectional policy responses to the concurrent insurance, climate, and housing crises.
Second, it surveys existing ILR policies, finding that they are relics of sixty-year-old decisions, and that states have seemingly overlooked the opportunities ILRs provide for tailored responses to insurance, climate, and housing concerns.
Third, it analyzes insurance data and state climate policy trends to show that many legacy ILR programs appear out of step with insurance withdrawal threats and state climate policy preferences. This suggests that states should consider revising their ILR programs in the near future
Corporate Climate Targets: Science, Discretion, and Climate-Washing
Full text linkThe use of corporate climate targets has exploded in recent years and now encompasses many of the world\u27s largest and most profitable companies. In a corporate climate target, a company voluntarily commits to reducing its emissions in line with climate science and the Paris Agreement. The broad adoption of these targets raises important questions: are these commitments truly aligned with science in the way they are advertised, or do they raise climate-washing concerns; i.e., do they exaggerate the benefits and significance of the climate targets? This Article investigates the role that science actually plays within targets and explores different types of climate-washing concerns when commitments turn out to be exaggerated. This Article\u27s analysis focuses on corporate targets issued as part of the Science-Based Targets Initiative (SBTi), the preeminent standard-setting body in the field. The Article finds that the role of science in SBTi\u27s rule framework is more complex than it first appears. SBTi rules employ a scientific concept known as the global carbon budget, but scientific knowledge alone cannot translate that carbon budget, which is indeed global, to company-level targets. When SBTi provides that translation in its rules, it is not merely deriving targets from science, but exercising considerable discretion. That discretion, and its distributive implications, are currently under-appreciated in both academia and practice. Building on this analysis, the Article turns to articulating climate-washing concerns in corporate targets and identifying relevant theories of liability. The key, it argues, is to move beyond the instinct that a target can only amount to climate-washing if it is in direct conflict with science. Because science itself cannot determine appropriate company-level targets, the Article helps to identify other avenues through which advocates may pursue climate-washing liability
NIST\u27s Software Un-Standards
No full textThe National Institute of Standards and Technology (NIST) has become a beacon of hope for those who trust in federal standards for software and AI safety. Moreover, lawmakers and commentators have indicated that compliance with NIST standards ought to shield entities from liability. With more than a century of expertise in scientific research and standard setting, NIST would seem to be uniquely qualified to develop such standards.
But as I argue in this Article, this faith is misplaced. NIST’s latest forays in risk management frameworks disavow concrete metrics or outcomes, and solicit voluntary participation instead of providing stable mandates. That open-ended approach can be attributed to the reversal of NIST\u27s prior efforts to promulgate federal software standards during the 1970s and 1980s. The failure of those federal regulatory efforts highlights fundamental challenges inherent in software development that continue to persist today.
Policymakers should draw upon the lessons of NIST\u27s experience and recognize that federal standards are unlikely to be the silver bullet. Instead, they should heed NIST\u27s admonition that the practice of software development remains deeply fragmented for other intrinsic reasons. Any effort to establish a universal standard of care must grapple with the need to accommodate the broad heterogeneity of accepted practices in the field
Mining Association Position Statement on Indigenous Peoples: Respect for Their Rights Advanced, with Some Shortcomings
Full text linkFrom Gods to Google
Full text linkThe First Amendment has become a significant barrier to sensible technology regulation. The conventional explanation for this is the Court\u27s deregulatory turn in free-speech law. But the Lochnerization story is incomplete. The Court\u27s profound solicitude for religious speakers plays a central role in the current digital-free-expression landscape. By protecting the speech of certain religious dissidents, the Court has created a set of constitutional entitlements that logically extend to technology firms. Along the way, the Court has eroded its ability to apply the First Amendment sensibly to novel technologies.
This Feature draws the doctrinal through line from gods to Google. We first sketch the basic contours of today\u27s technology regulation and explain why it is vulnerable to First Amendment challenge. We then give an overview of free-speech case law that develops what we call the oppressed-speaker paradigm. The Roberts Court has been motivated not just by free-market zeal but also by the trope of a persecuted religious minority standing fast in the face of a domineering and majoritarian regulator.
We pay special attention to 303 Creative LLC v. Elenis, identifying several doctrinal defects likely to have an impact on technology regulation. Technology firms have wasted no time in relying on 303 Creative to challenge a variety of new laws—most notably in last Term\u27s Moody v. NetChoice, LLC, which involved free-speech challenges to the regulation of internet platforms. The Court in Moody, however, sidestepped or ignored the most serious implications of 303 Creative.
It may be tempting to think the Court could reconcile the two cases by distinguishing religious speakers from platforms. But doing so would impermissibly enshrine viewpoint and speaker discrimination into free-speech law. The Court thus confronts a conundrum of its own making: either (1) apply the principles developed for religious speakers to new technologies and expose a wide range of technology policy tools to constitutional attack, or (2) create special rules for religious speakers, which would violate the Court\u27s own notions about viewpoint and speaker neutrality. A principled resolution of this conflict cannot be that free-speech law affords special protection for religious speakers. The Roberts Court must find legitimate and coherent limiting principles for the First Amendment landmines it has laid
