Law Commons^™

Reconciling Disjunct Cryptocurrency Securities Enforcement With Purchaser Expectations, Jacob E. Simmons

Seattle University Law Review

The Southern District of New York’s July 2023 decision in SEC v. Ripple Labs, Inc. has been touted as a monumental win for cryptocurrency purchasers and related businesses. The Ripple court held that, except institutional investor transactions, all sales of Ripple’s XRP token were not investment contracts, a class of security subject to federal securities law. The court’s ruling meant that Ripple could not be held liable for the unregistered trading of XRP beyond its sales to institutional investors. Ripple adds new insights to a pervasive policymaking dilemma addressed in this Note: is the Securities and Exchange Commission’s (SEC) regulatory …

On The Value Of History: A Review Of A.C. Pritchard & Robert B. Thompson’S A History Of Securities Law In The Supreme Court, Joel Seligman

Seattle University Law Review

A.C. Pritchard and Bob Thompson have written a splendid history of securities law decisions in the Supreme Court. Their book is exemplary because of its detailed use of the long unpublished papers of Supreme Court justices, including those of Harry Blackmun, William O. Douglas, Felix Frankfurter and Lewis F. Powell, primary sources which included correspondence with other Justices and law clerks as well as interviews with law clerks. The use of these primary sources recounted throughout the text and 67 pages of End Notes deepens our understanding of the intentions of the Justices and sharpens our understanding of the conflicts …

Memories Of An Affirmative Action Activist, Margaret E. Montoya

Seattle University Law Review

Some twenty-five years ago, the Society of American Law Teachers (SALT) led a march supporting Affirmative Action in legal education to counter the spate of litigation and other legal prohibitions that exploded during the 1990s, seeking to limit or abolish race-based measures. The march began at the San Francisco Hilton Hotel, where the Association of American Law Schools (AALS) was having its annual meeting, and proceeded to Union Square. We, the organizers of the march, did not expect the march to become an iconic event; one that would be remembered as a harbinger of a new era of activism by …

The Sffa V. Harvard Trojan Horse Admissions Lawsuit, Kimberly West-Faulcon

Seattle University Law Review

Affirmative-action-hostile admissions lawsuits are modern Trojan horses. The SFFA v. Harvard/UNC case—Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, et. al., decided jointly—is the most effective Trojan horse admissions lawsuit to date. Constructed to have the distractingly appealing exterior façade of a lawsuit seeking greater fairness in college admissions, the SFFA v. Harvard/UNC case is best understood as a deception-driven battle tactic used by forces waging a multi-decade war against the major legislative victories of America’s Civil Rights Movement, specifically Title VI and Title VII …

The Limits Of Corporate Governance, Cathy Hwang, Emily Winston

Seattle University Law Review

What is the purpose of the corporation? For decades, the answer was clear: to put shareholders’ interests first. In many cases, this theory of shareholder primacy also became synonymous with the imperative to maximize shareholder wealth. In the world where shareholder primacy was a north star, courts, scholars, and policymakers had relatively little to fight about: most debates were minor skirmishes about exactly how to maximize shareholder wealth.

Part I of this Essay discusses the shortcomings of shareholder primacy and stakeholder governance, arguing that neither of these modes of governance provides an adequate framework for incentivizing corporations to do good. …

Going Forward: The Role Of Affirmative Action, Race, And Diversity In University Admissions And The Broader Construction Of Society, Steven W. Bender

Seattle University Law Review

The third annual EPOCH symposium, a partnership between the Seattle University Law Review and the Black Law Student Association took place in late summer 2023 at the Seattle University School of Law. It was intended to uplift and amplify Black voices and ideas, and those of allies in the legal community. Prompted by the swell of public outcry surrounding ongoing police violence against the Black community, the EPOCH partnership marked a commitment to antiracism imperatives and effectuating change for the Black community. The published symposium in this volume encompasses some, but not all, the ideas and vision detailed in the …

Volo Foundation Lecture: Science, Free Speech, And Public Choice, Bret Stephens

FIU Law Review

In an era where science, free speech, and public choice clash, the historical unity between these pillars, as envisioned by America's founding fathers, is obscured. Examining Thomas Jefferson's reverence for Bacon, Locke, and Newton, reveals a past where reason and freedom intertwined. However, contemporary challenges, epitomized by the pandemic response, illustrate a divergence. Amidst censorship and expert dominance, the vital role of public scrutiny emerges. Acknowledging the fallibility of experts and embracing free speech as essential for reasoned discourse becomes imperative. To restore the balance, humility from scientific institutions, a renewed appreciation for free speech, and public courage are necessary …

Five Considerations For Twenty-First Century Climate Policy, Matthew G. Burgess

FIU Law Review

As the twenty-first century advances, society is entering a new phase regarding climate change. Impacts of climate change are becoming more salient in the present, rather than being only far-off in the future. Progress on flattening—and in many affluent countries, reducing—greenhouse gas emissions is also becoming salient, though the progress underperforms international targets. Slowing economic growth and major technological and geopolitical disruptions are creating new challenges and uncertainties. One of these challenges is a political climate of deep divisions and rising distrust in fact-finding institutions—a climate that is ripe for demagoguery. In the United States and some other countries, the …

Tarnished Gold: The Endangered Species Act At 50, Jonathan H. Adler

FIU Law Review

The ESA is arguably the most powerful and stringent federal environmental law on the books. Yet for all of the Act’s force and ambition, it is unclear how much the law has done much to achieve its central purpose: the conservation of endangered species. The law has been slow to recover listed species and has fostered conflict over land use and scientific determinations that frustrate cooperative conservation efforts. The Article aims to take stock of the ESA’s success and failures during its first fifty years, particularly with regard the conservation of species habitat on private land. While the Act authorizes …

Reforming The Federal Regulatory Review Process, Joanne Spalding, Andres Restrepo

FIU Law Review

For decades, the Office of Information and Regulatory Affairs (OIRA) has overseen the development of federal regulatory policies with a strong emphasis on benefit-cost analysis. Despite its conceptual appeal, this analytic tool consistently shortchanges environmental and public health protection, with especially negative consequences for environmental justice communities. In this article, we address some of those shortcomings, focusing in particular on the standard agency practice of arithmetically discounting regulatory costs and benefits that accrue in the future. We propose that the OIRA abandon this practice as it relates to non-market goods, such as human lives saved, and instead work toward a …

Standing In The Way Of Environmental Justice, Lauren Cormany

Utah Law Review

Private citizens need an avenue for justice through the judicial system on the siting of hazardous facilities. The health impacts of exposure to toxic facilities—like cancer, respiratory illnesses, and birth defects—are severe and victims deserve their day in court. While initiatives by government agencies and grassroots organizations provide influential roads to improvement, the judiciary stands to only bolster the efficacy of the work in the environmental justice field. The most effective way to include the courts is through the legislature creating a cause of action targeting the issues that communities face. Solutions to the issue of citizen standing in challenging …

Migration And Survival: The Birds Do It, The Bees Do It, Why Can’T We Do It?, Meredith Bensen

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Making Money Green: A Proposal For A Sustainable Stock Exchange, Mary Grace Thurman

William & Mary Environmental Law and Policy Review

Investors crave sustainable business data as a lucrative indicator of long-term business success, yet this demand is not being met by current environmental, social, and corporate governance (“ESG”) investment portfolios, voluntary business disclosure reports, or the Securities and Exchange Commission’s (“SEC”) climate-related rule proposal. Instead, an alternative, voluntary stock exchange premising entry upon satisfaction of industry-specific ESG prerequisites, would directly connect investors with the sustainable investments they desire without requiring them to interpret dense scientific data and decipher which companies exercise positive business practices.

This Article demonstrates that creating an alternative stock exchange for trading solely sustainable businesses would provide …

Coasting North: The Problem With The Jones Act For The Offshore Wind Industry And A Remedy From Canada, Sarah Macleod Nagle

William & Mary Environmental Law and Policy Review

This Note is organized into three parts to examine how the Jones Act hampers the U.S. wind energy industry’s construction of offshore wind farms by requiring that only U.S. vessels transport materials from U.S. ports to the wind farms. The Note proposes a license modeled on Canada’s Coasting Trade Act (“CTA”) to allow non-U.S.-flagged vessels to participate in wind turbine construction. Part I will address the development of cabotage law in the United States, the creation of the Jones Act, and its impact on offshore wind. Part II surveys Canada’s cabotage laws, which culminated in the passage of the CTA …

Soil Governance And Private Property, Sarah J. Fox

Utah Law Review

This is an Article about soil. In consequence, it is also an Article about our relationship to land, and about how that relationship can and must change to confront the many environmental crises facing the United States. Questions about our relationship with the physical environment around us necessarily come to the fore in conversations about soil because of its several identities. It is one of Earth’s most precious resources—the substance responsible for allowing plants to grow, filtering pollutants out of water, providing habitat to countless organisms, sequestering carbon, and providing many other valuable functions. Soil also, however, makes up the …

Banning Plastic, Rachael E. Salcido

Utah Law Review

The disgusting nature of plastic pollution has finally captured the attention of policymakers and driven legal change. Local, state, and national bans on various plastic consumer items coupled with voluntary industry switching creates momentum toward a full-scale end to unnecessary plastic products. Bans have the capacity to create an important tipping point. This Article extolls the effectiveness of consumer bans and explores the challenges to achieving this highest level of environmental control. Plastic is essentially pure petroleum.1 Its persistence and destructiveness in the environment presents unique reasons to eliminate its use altogether. Plastics should only be used for essential products …

Old And New Environmental Racism, Tseming Yang

Utah Law Review

Over the past five decades, the U.S. Environmental Protection Agency (“EPA”) moved from purposeful disregard of environmental racism to a public embrace of environmental justice as an organizational priority. Unfortunately, its efforts to address environmental discrimination remain a work-in-progress. This Article posits that the Agency’s core difficulties have arisen out of its reluctance to accept the continuing salience of race and the substantive implications for its regulatory work. It has blinded the Agency to the evolving manifestations of environmental discrimination and associated harms. The effect has been to impede the aggressive enforcement of antidiscrimination laws, particularly the discriminatory effects regulations …

Against Self-Defeating Climate Policy, Michael Buschbacher

FIU Law Review

This paper contends that the narrow Overton window on climate policy is self-defeating to the goals of many climate activists and policymakers. It gives three examples of policies that do little to address carbon emissions and are likely to fail: (1) how decarbonization policies are destroying electric grid reliability; (2) how the attempt to eliminate the internal combustion engine is leading to the “Cuba-fication” of the automotive fleet; and (3) how the focus on reducing domestic carbon emissions leads to regulatory arbitrage. The paper provides three corresponding recommendations, contending (1) that states should eliminate RTOs and ISOs in favor of …

Keeping The Perpetual In Florida's Conservation Easements, Nancy A. Mclaughlin

FIU Law Review

Hundreds of millions of dollars are being invested in the protection of the Florida Wildlife Corridor and other environmentally sensitive lands. One of the primary tools being used to accomplish this protection is the perpetual conservation easement, which is touted to landowners and the public as providing a permanent guarantee that the subject lands will never be developed. There is a very real danger, however, that perpetual conservation easements in Florida may not, in fact, be perpetual, and the protections put in place today will vanish over time—along with the public funds invested therein—as government and nonprofit holders “release” the …

Table Of Contents (V. 48, No. 2)

William & Mary Environmental Law and Policy Review

No abstract provided.

Pricing, Decarbonization, And Green New Deals, David M. Driesen, Michael A. Mehling

William & Mary Environmental Law and Policy Review

This Article evaluates an emerging literature claiming that carbon pricing (emissions trading or carbon taxes) has not performed very well and therefore cannot be the basis for the sort of transformative change now required to address the climate crisis. This is an important claim, as carbon pricing has been viewed as being at the heart of global efforts to address one of our most important contemporary problems.

We provide theoretical and empirical support for these critics’ claim that carbon pricing by itself cannot catalyze the technological transformation now required, and that other approaches have done and will likely do better. …

Assessing State Invasive Species Schemes Through The Lens Of The Spotted Lanternfly, Susanna Clark

William & Mary Environmental Law and Policy Review

Invasive species have long presented an issue across the United States, and continue to do so. They have become more prevalent as the world has become more interconnected. Nonnative species are not always invasive, but many of them are. A somewhat recently introduced invasive species, the spotted lanternfly, has proven to be especially destructive and will put current invasive species laws to the test. The federal government does have some laws on the books regarding invasive species, but much of the legislation and subsequent regulations can be found at the state level. No two states have the same legal and …

Rule-In-Use For Community-Based Springs Management Faces Land Use Pressures: Lesson Learned From Manggarai District, Bernadinus Steni, Hariadi Kartodihardjo, Soeryo Adiwibowo, Ruchyat Deni Djakapermana

The Indonesian Journal of Socio-Legal Studies

The struggle for water is one of the greatest immediate risks of the climate crisis. Therefore, the institutional challenge of water management is increasingly urgent and requires a number of consensuses to succeed, including community-based natural resource management (CBNRM). A key challenge to the traditional consensus for water conservation is the increasing need for land conversion due to population growth, which in turn deflects decision-making power away from traditional institutions towards external decision-makers such as regional governments. Using Ostrom's conceptual framework of rules of use, this research examines shifting spring water management in the context of Kabupaten Manggarai. The paper …

Keynote Speech By John Knox, Former U.N. Special Rapporteur For Human Rights And The Environment, John Knox

Case Western Reserve Journal of International Law

No abstract provided.

Green Colonialism: Sidelined While On The Front Lines, M. Alexander Pearl

Case Western Reserve Journal of International Law

The United Nations General Assembly recently unanimously adopted a resolution recognizing the “right to a clean, healthy and sustainable environment as a human right.” in July, 2022. ... The resolution was heralded by U.N. Environment Programme (UNEP) Executive Director Inger Andersen as a “victory for people and the planet,” and it was described as a catalyst for action by U.N. Special Rapporteur on Human Rights and the Environment David Boyd. ... Boyd went on to say that the resolution could encourage States “to enshrine the right to a healthy environment in . . . constitutions and regional treaties.”... This short …

The Right To A Healthy Environment: Underlying Policy Formation Challenges In The United States During The Trump Era, Michael J. Kelly

Case Western Reserve Journal of International Law

The right to live in a healthy environment is the right to live in an environment where Donald Trump is not president. As this Article demonstrates, Trump’s negative impact across a wide spectrum of policy areas implicated by the right’s goal of creating and maintaining a healthy environment in the United States ran directly opposite to achieving that goal. (Abstract excerpted from article's introduction.)

Drops In The Ocean: The Hidden Power Of Rights-Based Climate Change Litigation, Craig Martin

Case Western Reserve Journal of International Law

An increasing number of legal challenges to government climate change policies are being advanced on the basis that states are violating the human rights or constitutional rights of applicants. A number of high-profile cases in Europe have upheld such claims and ordered governments to adjust their policies. But questions remain regarding how effective such rights-based cases may be in the effort to enforce climate change law obligations or encourage government responses to the crisis. This Article explores how such rights-based cases may exercise greater influence than is typically understood.

After explaining briefly the relevant human rights and climate change law, …

Taxing Dirty Luxuries, Victoria J. Haneman

Case Western Reserve Journal of International Law

Dirty luxuries are items that are pleasant or nice to have, not necessities, that absolutely bludgeon the environment. From the merely affluent to the ultra-rich, consumers enjoying dirty luxuries, such as luxury clothing, private jets, superyachts, SUVs, and vacation cruises, drive one of the most polluting types of consumption on the planet. This Article explores the climate costs of dirty luxuries, considers the current and proposed international efforts to address the climate impact of these luxuries, and proposes structures by which these luxuries may be taxed to either reduce consumption or compensate for negative externalities.

Crimes Against The Environment, Ecocide, And The International Criminal Court, Milena Sterio

Case Western Reserve Journal of International Law

Ecocide as well as other crimes against the environment have become a feature of warfare, as exemplified in the Russian invasion of Ukraine and the devastating environmental harm caused as a result. As this Paper has described, significant obstacles remain associated with the ICC’s ability to prosecute environmental crimes, either as war crimes or crimes against humanity. (Abstrast excerpted from article's Conclusion.)

Ecocide In War And Peace, From The Air Pollution Consequences Of The War In Ukraine To Japan's Disposal Of Fukushima Water Into The Ocean, Giovanni Chiarini

Case Western Reserve Journal of International Law

This Article will propose and analyze potentially prosecutable cases of alleged global ecocide and propose targeted amendments to Articles 36(3) and (5) of the ICC Rome Statute. These proposed amendments may serve as a blueprint to procedurally ensure environmental expertise at the international judicial level. Ecocide is unfortunately not currently recognized under the Rome Statute. However, certain scholars have suggested defining it as a fifth international crime. This analysis identifies environmental crises, international criminal law expectations and examines the environmental pollution caused by the Russian invasion of Ukraine and the Japanese government’s decision to dispose of radioactive treated water from …