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Redress for Historical Injustices: Haiti’s Claim for the Restitution of post-Independence Payments to France
Get PDFShouldering the Burden of Renewable Energy: Lithium Mining in Chile’s Indigenous Communities
Get PDFTechnology has improved society, from bridging digital divides to increasing efficiency. To power technology, energy sources were traditionally derived from diminishing and exhaustible resources like fossil fuels. The renewable energy revolution emerged to balance the global demand for technology with its impact on natural resources. Lithium is a critical, non-renewable mineral that clean technology relies on. Essentially, lithium makes renewable energy possible. As the pillar for a fossil fuel-free yet technology-driven society, it is imperative to examine the sustainability and impacts of lithium mining.
This Note discusses the legal and socio-political frameworks shaping foreign direct investments in Chile’s lithium mining sector. Out of these frameworks arose a complex web of mining and investment doctrine affecting the rights of Chile’s indigenous people. As a global supplier of lithium, Chile’s indigenous communities—in the heart of the Atacama Desert—are shouldering the burden of renewable energy. This Note explores incorporating environmental, social, and governance (“ESG”) policies into Chile’s foreign direct investment regime and how ESG-driven policies can mitigate the social and environmental repercussions of lithium mining on Chile’s indigenous communities
Is Public Company Still a Viable Regulatory Category?
No full textThis Article suggests that the ubiquitous public company regulatory category, as currently constructed, has outlived its effectiveness in fulfilling core goals of the modern administrative state. An ever-expanding array of federal economic regulation hinges on public company status, but public company differs from most other regulatory categories in that it requires an affirmative opt-in by the subject entity. In practice, firms today become subject to public company regulation only if they need access to the public capital markets, which is much less of a business imperative than it once was due to the proliferation of private financing options. Paradoxically, then, public company regulation is both more important than ever and easier than ever to avoid.
This new state of affairs raises a foundational question of regulatory design: Can and should the applicability of an important part of federal law depend on self-elective public company status? The Article answers this question through an original analysis of the genesis, idiosyncrasies, persistence, and ultimate erosion of the public company regulatory category. It draws on a detailed review of the historical record and over 50 federal corporate governance proposals between 1903 and 2023. This includes a hand-collected sample of recent proposed bills tied to public company status-highlighting both the ongoing demand for new economic regulation and the prevailing inertia in conditioning regulation on public company status. The Article also applies an assessment framework adapted from the literature on regulatory review in administrative law and inquires into factors such as fidelity to statutory objectives, changes in relevant conditions, the regulatory treatment of similar cases, the rate of regulatory complexity, and the incidence of regulatory divergence.
Ultimately, there is serious cause for skepticism about the viability of the current model, both with respect to the traditional goals of public company regulation (investor protection, capital formation, and capital market efficiency) and with respect to newer economic governance goals (accountability, transparency, voice, and aggregate efficiency). The Article responds to these findings by outlining several alternative regulatory approaches. Among other takeaways, shifting the frame away from the entrenched public company category suggests that in certain important aspects of economic governance, regulation should cover significant firms irrespective of their financing choices and, potentially, non-profit entities engaging in significant economic activity.
Short of wholesale reform, this Article has one immediate message for legislators and policy advocates: when designing new bills that touch on any aspect of economic governance, think carefully before conditioning those bills\u27 applicability on public company status
The Ideal Approach to Artificial Intelligence Legislation: A Combination of the United States and European Union
Get PDFThe evolution of Artificial Intelligence (“A.I.”) from a speculative concept depicted in science fiction to its integration into various aspects of everyday life has brought about complex challenges for contemporary legislators. The proliferation of A.I. technology has led to a growing recognition of the need for regulation, as it poses both promises and threats to society. On the one hand, A.I. has the potential to enhance efficiency in various fields, such as medicine and automation of routine tasks. On the other hand, if left unregulated, A.I. has the potential to undermine democratic principles and infringe upon fundamental rights. Thus, legislators are facing the delicate task of balancing regulation with the need to foster continued innovation in the field of A.I. Both the United States (“U.S.”) and the European Union (“E.U.”) have begun taking steps towards the development of A.I. legislation, recognizing the need for a comprehensive approach to address the multifaceted challenges posed by this rapidly advancing technology
Rising Tide: The Second Wave of Climate Torts
Get PDFFossil fuels and tobacco products share startling similarities. Both enjoy ubiquity, enable their users to keep pace with the ever-increasing demands of civilization, and choke the life out of those who partake and those who merely look on. The comparison extends to legal battles against their respective industries, as evidenced by a new wave of tort litigation in the federal courts of the United States. In a time where climate change was still establishing consensus, states took up the charge against tobacco companies who had successfully defended against private lawsuits over the deleterious health effects of tobacco. Those suits culminated in the Master Settlement Agreement, a Congressional compromise which preserved the tobacco industry while recompensing the injuries of and protecting citizens.
History may repeat itself as a mixture of public and private plaintiffs take to federal court to seek justice for climate damages including rising seas, oppressive weather, acid rain, and polluted air. These plaintiffs cite modern scientific consensus, which points unerringly to producers and emitters of greenhouse gases and carbon byproducts as the culprits. Even more addicting than tobacco, however, is the fossil fuel, and our civilization shows no sign of breaking the habit in the near future. Justice for these plaintiffs and for all affected parties—every human being and other living organism on this planet—may be reached in the United States by learning from the lessons of tobacco litigation. With the right outcome in this crucial climate, we may all yet breathe easier
For Freedom or Full of It? State Attempts to Silence Social Media
Get PDFFreedom of speech is, unsurprisingly, foundational to the “land of the free.” However, the “land of the free” has undergone some changes since the First Amendment’s ratification. Unprecedented technological evolution has ushered in a digital forum in which the volume, speed, and reach of words transcend the Framers’ visions of the First Amendment’s aims. Social media platforms have become central spaces for public discourse, where opportunities to create—and repress—speech are endless. From enabling individuals to freely express their views, to allowing state actors to limit open exchanges, it is about time that the Supreme Court tackles this complex issue of national importance through NetChoice v. Moody and NetChoice v. Paxton.
This Note explores free speech in the context of social media platforms and their content-moderation decisions. While the Supreme Court has previously grappled with the challenges of adapting constitutional principles to technological advancements, it has yet to fully address the unique dynamics of social media platforms and how they remove content. When a social media platform deletes a post or bans a President, is that “speech” protected by the First Amendment? And if it is, should it be? This Note spotlights a recent split between the Eleventh and Fifth Circuits, stemming from politically motivated attempts to regulate social media platforms in Florida and Texas. This Note aims to serve as a guide to the evolving legal landscape surrounding social media content moderation, offering insights into the imminent Supreme Court decisions that will address the circuit split and shape the future of the digital “land of the free.
The Afterlife of Confederate Monuments
Get PDFAs communities increasingly remove Confederate monuments from public spaces, they must decide what to do with these troubled statues. Given the recent wave of monument removal, we consider how property law and other restrictions impact community decisions on the disposition of monuments removed from public spaces on two levels by location and future owner. In considering the fate of removed monuments, we profile potential destinations including museums, battlefields, cemeteries, and even storage. Alongside these examples, we discuss how laws constrain (or fail to constrain) the options for new owners and the restrictions on where monuments can be relocated. Even where laws do not constrain their removal choices, communities may choose to relinquish ownership to a Confederate heritage organization (or to another governmental entity) to speed removal. While transferring ownership is initially appealing, surrendering ownership may not be the best long-term decision for a community. Communities can lose control over the display of transferred statues, which fails to address the root of the problem. Where possible, communities should retain ownership (and therefore control) of removed statues or consider how other property law tools, such as transfer agreements, can impose discipline on the new owners. Making considered decisions on both the future display and owner is critical to the overall removal movement and to ensure that the legacy of these troubled statutes is properly addressed
Epic Games, Inc. v. Apple, Inc.: An Epic Opinion for Software Developers
Get PDFAside from Google Play, Apple’s App Store is where the majority of apps are downloaded from across the world. Recently, Apple has faced scrutiny for its management of the App Store and the control Apple has over the market due to the lack of competition. Additionally, developers have criticized the 30% fee Apple charges them for in-app purchases. The recent ruling by the Northern District of California in Epic Games, Inc. v. Apple, Inc., 559 F. Supp. 3d 898 (N.D. Cal. 2021) addressed this issue and issued an injunction allowing the possibility for developers to direct consumers to external links to subscribe or make purchases which could allow the developers to circumvent Apple’s high commission rates.
In Epic Games, Inc. v. Apple, Inc., the court held Apple was not an antitrust monopolist in the market of mobile gaming transactions under the Sherman Act; however, Apple’s anti-steering restrictions were held to be anticompetitive and unlawful under the unfair prong of California’s Unfair Competition Law. This Comment analyzes how the Northern District of California correctly applied prior law in its holding that Epic Games failed to satisfy the rule of reason test to prove Apple’s app distribution restrictions were anticompetitive effects that were harmful to consumers and unlawful under § 1 of the Sherman Act. While Apple’s app distribution restrictions did have anticompetitive effects, Apple was able to validate the anticompetitive effects with security, interbrand competition, and intellectual property as valid procompetitive justifications since the justifications enhance consumer appeal and make Apple more competitive to brands like Google. Additionally, this Comment focuses on how the court correctly ruled Apple’s anti-steering provisions threaten an incipient violation of an antitrust law under California’s Unfair Competition Law since the anti-steering provisions lack a valid procompetitive rationale and block communications about lower prices on other platforms to consumers. Going forward, this case provides implications on how future developers should structure their arguments when pursuing litigation against companies with significant market power, namely Apple and Google. The fact Apple was granted an injunction for its anti-steering provisions under the California Unfair Competition Law but was not considered to be in violation of § 1 of the Sherman Act may reveal that developers are better off framing their arguments as “incipient violations of antitrust law” rather than more broadly through the Sherman Act § 1 unfair restraint of trade.