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New Legal Realism at 20: Rethinking Law in an Era of Populism and Social Movements
Get PDFThis Article critically examines the New Legal Realism (NLR) movement on its twentieth anniversary and illuminates its distinctive intellectual contributions. In evaluating NLR\u27s unique methodological and substantive contributions, we explore the movement\u27s relationship to other interdisciplinary theories and empirical approaches to law. NLR approaches show a commitment to a comparative, cross-national exploration of legal phenomena while allowing for grounded generalizations about the relationship between law and society. NLR approaches embrace a diverse range of methods and emphasize the importance of looking up, down, and sideways. Notably, NLR embraces both top-down and bottom-up methods, providing comprehensive insights into the intricate interactions and competition between various actors and legal institutions. In contrast to perspectives that narrow the law to a mere instrument of social control, NLR recognizes that the law is a complex and nuanced social phenomenon with relative autonomy that often leads to unintended consequences.
Two case studies one in Colombia and the other in Brazil elucidate the complex power dynamics of law\u27s interaction with elites and grassroots social movements. In Colombia, grassroots social movements appropriated and repurposed corporate law and neoliberal reforms to advance progressive causes. Conversely, in Brazil, populist and illiberal leaders exploited a progressive government policy promoting digital access and reoriented it towards objectives that were contrary to the original intent of the policy. Both cases exemplify NLR\u27s insistence on observing top-down policies as well as bottom-up social processes to understand the ways in which law and policy are deployed by diverse actors in varied ways. They illustrate the particular nature of the law itself and how the law in any given moment represents the crystallization of the social forces that produced it through competition over the direction of legal and social change
Why Florida Municipalities Should Not Resort to Rent Control: a Comparative Analysis and Alternative Solutions
Get PDFThis Note addresses the increasing rent problem in Florida, explains why rent control is not the best solution, and suggests alternative remedies. Rent control refers to laws and regulations that control how much a landlord can increase the price charged to tenants to live in an apartment. Florida enacted a statute in 1977 that currently bans rent control in the state but has an exception in the case of a housing emergency. This exception allows local governments to put a one-year rent control ordinance to a public vote. Orange County, Florida, recently declared a housing emergency and had residents vote on the issue. This Note will look to and compare the successes and failures of rent control implementation across cities in the United States and Europe and describe why other municipalities in Florida should not follow suit to Orange County and instead seek alternative remedies to produce more affordable housing for its citizen
The Underwater: Using Art to Engage Communities Around Climate Action
Get PDFThis Article delves into the intersection of art and environmental activism, with a focus on the impact of climate change. Cortada, both an artist and trained attorney, re-counts his three-decade journey leveraging art to inspire community engagement and address social and environmental challenges. He explains how Antarctic researchers made him aware of South Florida\u27s vulnerability to sea level rise, leading to the development of interactive art projects that foster civic engagement and climate advocacy. The Article also addresses the challenges posed by climate denial and misinformation, emphasizing the need for creative strategies to combat these issues.
Cortada introduces specific participatory art initiatives he has crafted to visualize South Florida’s vulnerability to rising seas and to ignite dialogue and action on climate change. He details a range of projects, including The Underwater, Underwater HOA, Elevation Drive, Underwater Vote, and HELLO, which all effectively employ art to render climate change a personal and pressing matter for communities.
This law review Article is an innovation in and of itself, serving simultaneously as an exhibition of “Underwater Florida,” a performative artwork Cortada created in 2022 to document the fraught state of coastal cities along the Florida peninsula. It showcases images of yard signs that the artist placed in front of 54 Florida city halls to mark their respective elevations, thereby recording this moment in the state\u27s history and sharing information with its residents to encourage policymakers to prepare for a future with rising seas. In mapping elevations along Florida\u27s coastline to underscore the threat of sea level rise, Cortada acts as a sentinel, witness, neighbor, informant, educator, science communicator, and advocate, and as a figurative bridge between the potential victims of tomorrow and today\u27s contributors to climate harm.
The inclusion of “Underwater Florida” in the law review Article exemplifies the innovative format, which transcends traditional academic boundaries to captivate its audience. This symbiotic relationship between art and academic discourse is a testament to their combined strength in conveying urgent messages about climate action. Cortada\u27s efforts extend to transforming public spaces into platforms for climate storytelling and fostering interdisciplinary engagement in regional governments, demonstrating art\u27s potency in stimulating public discourse and prompting action on climate change. The Article concludes by reinforcing the essential role of art in fostering a culture of care and activism, crucial for preserving our planet and its inhabitants in the face of a climate crisis
Energy Justice and Renewable Rikers
Get PDFUnsustainable energy practices generate the lion’s share of global carbon emissions as well as staggering levels of deadly particulate pollution. Replacing the current dirty, fossil fuel-based system with affordable, clean energy is both a human rights imperative and a climate change necessity. This transition, which has already begun, creates the opportunity to do things differently. By confronting the structural racism embedded in existing energy structures, we can build a just transition rather than just a transition. This Article uses New York City’s Renewable Rikers project as a case study to explore how we might take advantage of the intersections between social justice, racial justice, and environmental justice to achieve sweeping social progress as part of the ongoing green energy transition
ESG & \u3cem\u3eCaremark\u3c/em\u3e: Shareholders Might Lack Adequate Tools to Voice ESG Concerns and to Hold Boards of Directors Accountable for ESG Oversight
Get PDFEnvironmental, Social, and Government (“ESG”) practices are no longer an area that corporations can ignore. A corporation’s failure to oversee an ESG risk can lead to a reputational scandal for the company, which, ultimately, hurts shareholders. The only primary legal recourse for shareholders to hold a board of directors accountable—for breaching its fiduciary duty to oversee a risk— is to bring a Caremark action in court. While most Caremark actions have proved favorable to shareholders in the past two decades, it is an imperfect and reactive framework for ESG related claims. Corporations are pulled in two opposite directions: maximizing shareholders’ interests—a byproduct of the shareholder primacy rule—and meeting the ever-increasing market pressures to pay attention to ESG risks. Shareholders, on the other hand, want to express their ESG concerns to corporations in a proactive way. The tools that shareholders have access to, however, might not be sufficiently adequate to do so. This Note argues that the shareholder primacy theory, a longstanding pillar of corporate governance, frustrates the ability for shareholders—the very group of people that it was meant to protect—from holding boards of directors accountable when there is a failure to oversee an ESG risk
The Oberlin Saga: Integrating North America’s Pipeline System and Potential Impacts on Hydrogen
Get PDFThis Article explores how the D.C. Circuit’s decision in City of Oberlin, Ohio v. FERC (2022) (Oberlin II) will impact future natural gas pipelines and potentially even future hydrogen infrastructure. While the decision reinforced support for integrating North American natural gas infrastructure, given uncertainties in how the United States will regulate the emerging hydrogen industry, there is a chance that the decision could be more expansive than what initially meets the eye. By continuing down the path of supporting North American energy integration, Congress, federal courts, and administrative agencies will help prepare the United States for an uncertain energy future. Despite aiding the often-criticized natural gas industry, the Oberlin II decision is a win for North American energy integration, which will be needed to speed up any transition away from these fossil fuels. Thus, this Article argues that the Oberlin II decision and subsequent FERC decisions that take the Oberlin II holding a step further should be maintained and built upon. Tackling climate change and transitioning to cleaner energy sources will take bold steps and having administrative systems in place that support this transition is needed