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Emerging Best Practices in International Atmospheric Trust Case Law
Get PDFWith climate change litigation proliferating throughout the world, a substantial body of case law is emerging. As part of a project of the IUCN World Commission on Environmental Law\u27s Climate Change Specialist Group, this Article, a version of which will be included in a “Judicial Handbook on Climate Litigation,” explains the public trust doctrine’s influence on climate change litigation internationally. We select what we view as judicial “best practices” as a kind of restatement of international atmospheric trust law in 2022. International atmospheric trust law is at the forefront of many best practices, as state and federal courts in the United States have fettered the public trust doctrine’s development by erecting procedural hurdles like standing and political question doctrines. On the other hand, international courts do not suffer from these procedural limitations, allowing them to reach the merits of public trust claims in the context of climate change. This Article explains these developments in an effort to synthesize the rapidly developing case law
Consumer Primacy: A Dynamic Model of Corporate Governance for Consumer- Centric Businesses
Get PDFThis Article challenges the conventional view that corporate law should principally strive to increase shareholder value, arguing that rather, corporate law should principally strive to ensure consumer satisfaction in consumer-centric businesses. Consumer-centric businesses are defined here as businesses in which consumers occupy a central role in the creation and distribution of corporate value and risks. For example, a consumer of a crowdfunded product does not take shares, but provides capital and product-design feedback during the early and critical stages of the product’s development. A consumer using a ridesharing app makes significant contributions to building the platform and provides real-time ratings and feedback regarding their experience, which are then used to incentivize desirable behavior within the platform. A purchaser of a token in an initial coin offering (ICO) purchases a medium of exchange that can be used within a particular network, with the value of the token being determined by the network’s success. In each of these examples, consumers have taken on roles that are the functional equivalents of the characteristics that legal theories of the firm have long relied upon to justify the law’s treatment of shareholders as owners and principals of firms. Based on this observation, I argue that consumers in these and other consumer-centric businesses should be provided with rights and obligations (such as the right to vote, standing to sue, and participation rights) commensurate to their contributions. In this Article, I show how this consumer-oriented model of the firm, which I refer to as the consumer primacy model, is useful as a mechanism to align corporate and societal interests and to inject diversity, long-termism, accountability, and social responsibility into the corporate boardroom, the lack of which has given rise to long-standing critiques of corporate culture in the United States
Constitutional Authority, Common Resources, and the Climate
Get PDFHistory, text, and precedent reveal an understudied and underutilized source of constitutional authority for environmental protection—the Property Clause of Article IV, Section 3. The Clause vests Congress with the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” This work re-examines these words, the context in which they were written, and the limited judicial decisions interpreting them with an eye towards increased congressional reliance on the Property Clause in the face of daunting threats to our natural environment. Much prior scholarly explanation of the Property Clause focused on the Framers’ concerns about the land claims of various states, failing to consider any secondary motivations that deepen our understanding of arguably the Constitution’s most explicitly environmental provision. Eugene Gaetke and Peter Appel began the push back against the originalist argument for a narrow interpretation of Congress’s power under the Clause. This piece completes the picture, making an affirmative case for a fuller, conservationist original understanding, one that acknowledges the historic role of the federal government in preserving the nation’s environment and natural resources
Patents on 5G Standards Are not Matters of National Security
Get PDFRecent arguments for stronger patent rights, particularly on 5G wireless telecommunications technologies, are relevant to discussions of national industrial policy and economic development, but are not matters of national security
Balance and Standardization: Implications for Competition and Antitrust Analysis
Get PDFMost technical standards development organizations (SDOs) have adopted internal policies embodying “due process” criteria such as openness, balance of interests, consensus decision making, and appeals. Unlike other aspects of SDO governance, relatively little scholarly research has considered the history, scope, and interpretation of SDO balance requirements. Likewise, existing case law and agency guidance offer little assistance in understanding precisely how these balance principles translate into specific antitrust requirements that apply to standards development. Given the absence of specific guidance on the meaning and implications of balance requirements for SDOs under the antitrust laws, it is necessary to review the development of the laws, regulations, and institutional norms that have shaped balance requirements and their application by different SDOs more generally. A series of recent events and disputes, however, has focused attention on this understudied area, particularly as it pertains to policies concerning intellectual property rights (IPRs). In this article, we provide an extensive survey of the evolution of SDO balance requirements. First, we describe the origins and evolution of balance requirements at the international level, leading to their inclusion in WTO and ISO/IEC instruments. We next describe how balance requirements went from a feature of SDOs to an element of rule of reason analysis under U.S. antitrust law, finding their way into related statutes as well. We then chart the parallel path of balance requirements in the EU, from national SDO features to components of EU standardization policy and eventually factors in EU competition law analysis. We conclude by exploring the different notions of balance that have evolved and their application to antitrust analysis
Sea of Destruction: Legal and Social Forces Enabling Sexual Abuse of Children
Get PDFThis Article seeks to expose the truth of how our schools, laws, and powerful groups in our society actively work to aid mobile molesters in schools—mobile because they move from child to child and school to school, all with the blessing of adult enablers who are charged to protect children. According to news reports, in 2015, at least 498 teachers and other school workers were arrested for sexual misconduct with children. That is almost three per school day. Even worse, in addition to the initial attack by the molester, the child is subsequently revictimized by others who aim attempt to protect the perpetrator and institution: bystanders, teachers, principals, special interest groups, government bureaucrats and politicians.
There are a body of laws and social forces that work to re-brutalize a survivor of child sexual assault. The decision to fail the vulnerable cannot be excused, must not be tolerated. That decision—perhaps decisions is a more accurate reflection—will be our primary focus. We do so to propose measures with one primary goal: to untangle the web of molesters-institutions-enabling that ensnares the vulnerable in a vice-like grip, with nowhere to run or hide.
This Article is comprised of three distinct, yet merged, voices: survivors from the US and Canada; data demonstrating the degree to which the mobility of molesters is institutionalized and enabled; recommendations for legislation focused on criminalizing the enabler. Our emphasis in this Article is specific: enablers protect teachers, coaches, and administrators who assault vulnerable school children mandated by state law to attend school. Focusing on the enablers holds them accountable for their actions and significantly curtails the ability of molesters to harm children. To protect these children, we propose creating mechanisms to criminalize enabling behavior. In that vein, our attention in this Article is not the molesters and their crimes but rather on those who created the infrastructure enabling the perpetrators. That does not minimize the actions of the molester but rather expands the focus to an additional, key actor in the crime
The Public Benefits of Press Specialness
Get PDFIn many circumstances, a broad umbrella of shared rights for the press and the public is perfectly adequate. But there are also times when statutorily, and even constitutionally, we should be providing unique protection to those who, if granted rights beyond those available to all speakers, will use those rights to benefit society as a whole. In these areas, our ongoing refusal to conceptualize and legally recognize the specialness of the press function has robbed us of public benefits.
The Freedom of Information Act context is a perfect illustration of this. Federal agencies are so swamped by requesters with non-newsworthy, non-public-oversight purposes that they do not have the time, resources, or incentives to respond well to journalistic requests. By forcing FOIA to be everything to everyone, we have left it unable to provide any real system of accountability and transparency for anyone. FOIA dynamics serve as a microcosm of a much larger truth we have ignored to our peril for too long: the specialness of the press function sometimes requires separate, special protections for those performing it.
This essay explores settings in which, as with FOIA, a system of equivalent rights for the press may mean no meaningful rights at all. The consequences—for governmental accountability, community discourse, and the health of our democracy—are grave. Those performing the press function simply cannot do what we need them to do if they are clumped with everyone else. It harms them, but more importantly, it harms us
Patent Reality Checks: Eliminating Patents on Fake, Impossible and Other Inoperative Inventions
Get PDFThe recent assertion of patents originally held by Theranos, the defunct blood analysis company whose founders are under federal indictment for fraud, highlights the existence of patents that might claim non-existent or inoperative inventions. While such patents may ultimately be subject to validity challenges in court, their issuance nevertheless has harmful effects on markets and innovation. I propose several administrative and legislative measures directed toward the elimination of patents claiming inoperative inventions including (1) increasing USPTO efforts to detect potentially inoperable inventions, (2) heightening examination requirements, including a certification of enablement, for certain inventions, (3) enabling greater public input into the examination process, and (4) increasing penalties for fraudulent conduct before the USPTO. In addition to addressing inoperative inventions, some of these reforms could help to alleviate broader enablement concerns that have been identified by scholars over the past decade. Given the serious consequences that these issues have on markets and innovation, such measures merit serious consideration by the USPTO and Congress
Filing While Black: The Casual Racism of the Tax Law
Get PDFThe tax law’s race-blind approach produces bad tax policy. This essay uses three very different examples to show how failing to openly and honestly address race generates bias, and how devasting the results can be. Ignoring race does not solve problems; it creates them. ProPublica has shown, for example, that because of the perils of filing income taxes while Black, the five most heavily audited counties in the United States are Black and poor.
The racial bias long tolerated—and sometimes exploited—by tax scholars and policymakers affects all aspects of the tax law. In 1986, Sam Gilliam was denied tax deductions that others in similar situations enjoyed. In 2000, Liberia was threatened with sanctions for being a tax haven, but Switzerland was not. In 2014, Eric Garner died in police custody after being suspected of evading a tax. In each instance, anti-Blackness played a role in ways the tax law either ignores or actively leverages
Securing a Permanent Homeland: The Federal Government’s Responsibility to Provide Clean Water Access to Tribal Communities
Get PDFWater is life—critical to the health, socioeconomic, and cultural needs of any community. Every household in the United States needs and deserves access to clean, reliable, and a ordable drinking water. Yet, tribal communities face high rates of water insecurity. More than a half million people—nearly 48 percent of tribal homes in Native communities across the United States—do not have access to reliable water sources, clean drinking water, or basic sanitation. In comparison, as a whole, less than 1 percent of households in the United States lack these facilities. This persistent problem became a matter of life or death during the COVID-19 pandemic, as the lack of running water increased the risk of transmission of the virus. is article addresses the lack of clean water access experienced in Indian Country today. Various challenges to water access are highlighted, followed by a discussion of the federal government’s responsibility to ensure clean water access for tribes. The article concludes by identifying federal actions to ful ll this responsibility, including the recent commitment of unprecedented funds to support tribal water infrastructure