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Solving Standing is Simply the Start: Climate Litigation Lessons Learned from the Evolution of Rights of Nature
Full text linkThe global climate crisis continues to worsen. The Sixth Synthesis Report issued by the Intergovernmental Panel on Climate Change in 2023 unequivocally stated that “[w]idespread and rapid changes in the atmosphere, ocean, cryosphere and biosphere have occurred” and that “[h]uman-caused climate change is already affecting many weather and climate extremes in every region across the globe.” This report expressly states that climate change has “led to widespread adverse impacts and related losses and damages to nature and people” and that the “projected adverse impacts and related losses and damages from climate change escalate with every increment of global warming. However, despite these clear and increasingly dire warnings from climate experts and the international community, the inaction by national governments and political figures persists. In particular, the widening gulf between domestic public opinion and the policy decisions made by corporations and politicians highlights the difficulties inherent in achieving meaningful climate solutions, especially as the United States emerges from yet another highly divisive presidential election cycle and enters a new administration. This mismatch extends beyond the United States. The fractious and drawn-out nature of the negotiations to establish a Loss and Damage Fund under the auspices of the United Nations and the lackluster initial funding commitments made at the Climate Change Conference (“COP28”) in Dubai in the fall of 2023 underscore that this is a global failure to act with the requisite urgency. Although establishing the Fund is an important step, observers point out that the amounts pledged fall far short of what is necessary, as they are “barely enough to get the fund running” and are dwarfed by the approximately $7 trillion in subsidies that were paid to fossil fuel industries globally in 2022. Frustrations with addressing this policy mismatch via conventional political avenues have given rise to a host of climate change lawsuits. However, the threshold barrier to climate change litigation is who has standing to sue in the interests of nature or a healthy environment. Various solutions have emerged globally, from the personified right of nature in legislation or constitutions, to Indigenous tribal stewardship, to a human right to a healthy environment; most climate change litigation globally hinges on either the human right to a healthy environment or a personified right of nature. Since 2008, when Ecuador included language recognizing the rights of nature in its national constitution, these lawsuits have increasingly incorporated the personified rights of nature. The extant rights of nature can be divided into three broad categories: constitutional, treaty and negotiation-based, and judicial. Despite an increase in interest and a UN General Assembly Resolution proclaiming the right to a healthy environment as a human right, the outcomes of lawsuits based on these initiatives have been mixed, as all of these aforementioned solutions to the standing problem create their own pitfalls later in litigation. This Note seeks to apply the lessons learned from two versions of the personified right of nature and a recent victory in domestic litigation in the United States based on the human right to a clean environment to a recent local case—Manoomin v. Minnesota Department of Natural Resources—as a method of distilling best practices for climate litigation going forward. Part I explores the variety of conceptions of personified rights of nature around the world, focusing on (i) Ecuador, where the constitutional personified right of nature has been defined too broadly to be effective, and (ii) New Zealand, where the government has created Māori management boards to act in the name of, and on behalf of, natural entities. Part II discusses the recent success in Held v. Montana based on a state constitutional human right to a healthy environment. Part III examines the failure of Manoomin v. Minnesota Department of Natural Resources based on a treaty-based personified right of nature and applies the lessons learned in Parts I and II. This Note concludes that the differing rights structures relied upon have impacted the legal avenues available in litigation and have prevented the actualization of beneficial outcomes for the environment due to the further procedural hurdles created by creative solutions to standing. Ultimately, this Note advocates for greater exploration of state constitutional reform as a combined strategy for future domestic litigation after applying these lessons to Manoomin v. Minnesota Department of Natural Resources
Hiding in Plain Sight: ERISA’s Cure for the $1.4 Trillion Health Benefits Market
Full text linkSince 1974, the Employee Retirement Income Security Act (ERISA) has imposed fiduciary duties on those who manage and administer employee benefit plans. But for the largest employee benefits—retirement benefits and health plans, which together constitute 13% of total national compensation—ERISA’s fiduciary duties have played very different roles. For retirement benefits, ERISA scrutinizes plan managers and requires employers to select plan investments with care. For health plans, there is a regulatory vacuum, as ERISA imposes few federal requirements yet preempts state efforts to ensure quality plan offerings. In short, ERISA has advanced protections for retirement plans but mostly curtailed protections for the nearly 165 million Americans who receive health insurance from employers. The tragedy is that health benefit plans are in dire need of regulatory scrutiny. The costs of health insurance have risen dramatically faster than inflation, cutting into worker take-home pay and inflicting disproportionate harm on middle- and lower-income workers, while the generosity of employer-provided plans has thinned. The sorry state of employer-sponsored health insurance is due, in part, to inattention and inadequate probity from the parties subject to ERISA’s fiduciary obligations. In sharp contrast, the efficiency and value of retirement benefits have improved over that same period. Because of what ERISA requires, and because of what managers of employee health benefits have failed to do, there is enormous opportunity to employ ERISA to enhance the value of health benefits for employees, which also means enhancing the value of the nation’s entire health sector. A handful of pioneering lawsuits have just started invoking ERISA to subject health benefits managers to fiduciary obligations, and more are certain to come. Now is the time for ERISA jurisprudence to confront the consequences of neglecting health insurance, for courts to consider what demands ERISA imposes on health benefits managers, and critically, for the Department of Labor to exercise its regulatory authority under ERISA and enforce fiduciary obligations that the statute imposes and the market sorely needs. This Article documents ERISA’s authority over health benefits managers, explains why ERISA litigation is on the upswing, and offers guidance on how the Department of Labor could establish regulatory safe harbors to bring accountability and predictability to the enormous health benefits marketplace
Human rights and Foreign Policy: South Africa\u27s Genocide Complaint Against Israel at the International Court of Justice
Full text linkThe End of the Khmer Rouge Tribunal: Its Success and Legacy
Full text linkThis note critically examines the effectiveness of the Extraordinary Chambers in the Courts of Cambodia (“ECCC”), in achieving justice against members of the Democratic Kampuchea, also known as the Khmer Rouge, and explores areas where the ECCC could influence international criminal law in the future. The analysis explores the structural flaws, political interference, and challenges faced by the ECCC, particularly in Cases 003 and 004. Despite these challenges, the court successfully convicted three individuals in Cases 001 and 002, providing a degree of justice for victims. Also, the ECCC’s unique features, such as the super-majority rule, victim-centered approach, and residual functions, offer insights into how future international tribunals could be better organized and structured. Ultimately, this note highlights the ECCC’s journey amidst several limitations and emphasizes the lessons international communities could learn from the ECCC
Legal Civil War
No full textIn an era of partisan polarization in which each side sees the other as illegitimate and a threat to the nation and its values, the term “civil war” is often brandished, from state and federal immigration battles to abortion access to election disputes. Civil war, as used in these contexts, does not necessarily raise the specter of armed confrontation between rival armies but does suggest divisions so deep that they threaten the nation’s ability to endure. This Essay introduces the concept of a legal civil war to describe conflicts within a country where rival factions defy the established rule of law and strive to set the terms for a new governing regime. The Essay changes the focus from violence to defiance of the rule of law; and provides a new paradigm for understanding what a rupture in the legal order entails and what reimposition of the rule of law requires. The Essay draws on examples from the fights over slavery and equal rights to illustrate how legal rupture and its repair constitute powerful and recurring themes throughout American history.
To analyze the form a modern American legal civil war might take, we observe that all civil wars, whether violent or not, start with ruptures in the rule of law. Drawing on the law of war, we then define a “legal civil war” as occurring when organized factions refuse to accept the legitimacy of the other’s claim to authority—and where the two sides go beyond rhetoric to active interference with the opponent’s otherwise legitimate actions. The interference, which, in accordance with the law of war, may justify a military response, becomes a legal civil war when both sides defy the other in ways that cannot be resolved within the legal system. The legal civil war, whether or not it ever becomes violent, then ends with the reimposition of a legal system that creates a foundation for future governance of the polity.
Three contemporary issues pose the potential to spark a legal civil war. The first is the possibility that no clear winner emerges from a contested election, and the other side rejects the legitimacy of the person sworn into office and refuses to treat the actions of the declared winner as authoritative. The second involves immigration, which has become an arena for pitting state against federal authority. The third involves abortion: What would happen if states defy a federal law that either bans or requires access to abortion or the state shields an abortion provider for acts that would be considered crimes in a second state?
This Essay, in focusing on the concept of legal civil war, distinguishes ruptures in the established system of governance from disagreements resolved within the legal system. Legal civil wars involve battles between sides, each of which represents a sizeable faction or controls a government entity, and which deny the legitimacy of their opponents’ authority and seek to impose their will on the polity as a whole. Once such a conflict creates a rupture in the established legal order, war will not be waged through legal process, but rather as a conflict where resolution involves the reimposition of a legal system that the country as a whole views as legitimate
Free Speech and Incorporation: A Reassessment
No full textMany of the Supreme Court’s most controversial free speech decisions involve state laws. In Gitlow v. New York, the Court assumed that the First Amendment’s guarantee of freedom of speech applied directly against the states via the Fourteenth Amendment, a doctrine today referred to as incorporation. Yet there is reason to doubt incorporation is correct as a matter of the original meaning of the Fourteenth Amendment. Indeed, much of the historical evidence involves debates over the freedom of speech, but none of the historical actors seemed to think the First Amendment applied against the states. This short essay evaluates the historical evidence relating to the freedom of speech and incorporation of the Bill of Rights and considers what a more historically grounded analysis in free speech cases might look like