Law Commons^™

Advocacy In Ideas: Legal Education And Social Movements, Monica Bell, Tanya K. Hernandez, Solangel Maldonado, Rachelle Perkins, Chantal Thomas, Olatunde C.A. Johnson, Elsie Lopez

Faculty Scholarship

Panel moderated by Professor Olatunde Johnson, featuring Professors Monica Bell, Tanya K. Hernández, Solangel Maldonado, and Chantal Thomas. Introduced by Elise Lopez.

Foreign Authors' Enforcement Of U.S. Reversion Rights, Jane C. Ginsburg

Faculty Scholarship

Thank you to all of the participants, and especially the first two panelists, for setting one part of the scene. I am going to talk about the United States’ termination right and some Berne and private international law consequences or implications of the termination right.

First, however, I’d like to advert to the two goals Rebecca Giblin referenced in her talk. One is remuneration, the other is dissemination. Author-protective laws in other countries also address dissemination. As Séverine Dusollier mentioned, a number of national laws include an obligation to exploit the work: if the publisher does not exploit the work, …

A Multi-Decade Joinpoint Analysis Of Firearm Injury Severity, Bindu Kalesan, Yi Zuo, Ziming Xuan, Michael B. Siegel, Jeffrey A. Fagan, Charles Branas, Sandro Galea

Faculty Scholarship

Non-fatal firearm injuries constitute approximately 70% of all firearm trauma injuries in the United States. Patterns of severity of these injuries are poorly understood. We analyzed the overall, age-, sex- and intent-specific temporal trends in the injury severity of firearm hospitalizations from 1993 to 2014.

We assessed temporal trends in the severity of patients hospitalized for firearm using Nationwide Inpatient Sample (NIS) data over a 22 year period. Firearm hospitalization was identified using assault (E965x), unintentional (E922x), intentional self-harm (E955x), legal (E970) and undetermined (E985x) International Classification of Diseases, Ninth Revision, Clinical Modification (ICD9) codes. Injury severity was measured using …

Initial Public Offerings In The Cmu: A U.S. Perspective, Merritt B. Fox

Faculty Scholarship

This chapter begins by considering the especially severe information-asymmetry problem that plagues primary offerings of truly new securities. It then examines market-based solutions for these problems, the shortcomings of exclusive reliance on such solutions, and the rationale for having a government-designed affirmative-disclosure regime, whereby an issuer making an offering is required to answer certain questions. It also addresses the question of whether this regime should be imposed on all issuers making such offerings or only those that volunteer to be subjected to it. The remainder of the chapter considers the rationale for mandating the imposition of liability on issuers, issuer …

Distributed Energy Resource Participation In Wholesale Markets: Lessons From The California Iso, Justin Gundlach, Romany M. Webb

Sabin Center for Climate Change Law

This article examines CAISO’s DER program after its first year of operation. It draws on written comments submitted to CAISO in the course of program development and on interviews the authors conducted with stakeholders – including active and potential DERPs, investor-owned utilities, and customer groups – to identify “barriers” to program participation. Irrespective of whether these barriers are appropriate – e.g., to ensure continued wholesale system reliability as DER penetration increases – they have clearly prevented the DER program fulfilling CAISO’s stated goal. The barriers should, therefore, be considered by other ISO/RTOs in developing programs with similar goals. The authors …

Expertise Scientifique Et Lien De Causalité Dans Le Cadre Du Contentieux Climatique: Le Point De Vue De La Doctrine Américaine, Michael Burger

Sabin Center for Climate Change Law

Au cours des dernières années, il y a eu une augmentation remarquable du nombre d’actions judiciaires visant à demander aux Gouvernements et aux acteurs privés de rendre des comptes de leur inaction face aux changements climatiques. La « science de l’attribution » du changement climatique – c’est-à-dire la capacité de détecter les changements environnementaux et de les attribuer à l’augmentation des émissions de gaz à effet de serre – joue un rôle central dans bon nombre de ces actions : elle permet en effet de fonder à la fois l’attribution d’événements extrêmes au changement climatique et d’émissions de gaz à …

Green Finance: Leveraging Investment For Environmental Protection, Michael B. Gerrard, Charles E. Di Leva, John Rousakis, Douglas Sims

Faculty Scholarship

Some political narratives describe the relationship between environmental protection and economic growth as two inherently incompatible goals. As the global community turns its attention to implementing international climate agreements, this story is ceding ground to the realization that the economy must facilitate a transition to sustainability. With limited government funding available, private investments offer an opportunity to dramatically increase and leverage funding to address daunting environmental problems. Green financing will play a critical role in the shift to a green economy.

Governments, intergovernmental organizations, financial institutions, corporations, and nongovernmental organizations (NGOs) are examining green financing mechanisms in earnest. Financial institutions …

Autonomy For Contract, Refined, Hanoch Dagan, Michael A. Heller

Faculty Scholarship

In The Choice Theory of Contracts, we advance a claim about the centrality of autonomy to contract. This Issue offers thoughtful and penetrating critiques. Here, we reply. Autonomy is the grounding principle of contract. In Choice Theory, we stressed the (1) proactive facilitation component of autonomy, in particular, the state’s obligation regarding contract types. Here, we highlight two additional, necessary implications of autonomy for contract: (2) regard for future selves and (3) relational justice. These three aspects of autonomy shape the range, limit, and floor, respectively, for the legitimate use of contract. They provide a principled and constrained path for …

Sources Of Tech Platform Power, Lina M. Khan

Faculty Scholarship

A handful of tech platforms mediate a large and growing share of our commerce and communications. Over the last year, the public has come to realize that the power these firms wield may pose significant hazards. Elected leaders ranging from Senator Elizabeth Warren (D-MA) to Senator Ted Cruz (R-TX) have expressed alarm at the level of control that firms like Amazon, Alphabet (Google’s parent company), and Facebook enjoy. In a recent poll, a majority of Americans voiced concern that the government wouldn’t do enough to regulate U.S. tech companies. As the editor of BuzzFeed observed, a “major trend in American …

Kernochan Center News - Summer 2018, Kernochan Center For Law, Media And The Arts

Kernochan Center for Law, Media, and the Arts

No abstract provided.

2018 Iaohra Gender Equity Toolkit, Human Rights Institute, International Association Of Official Human Rights Agencies (Iaohra)

Human Rights Institute

Human rights provide a valuable tool for assessing and advancing women’s human rights; proactively identifying and changing the laws, policies, and practices that perpetuate inequality; addressing the stereotypes and beliefs that underlie gender discrimination; and shaping initiatives that improve gender equity.

"Anything Goes": Regulating The Conduct Of Money-Bundling Broadway Co-Producers, David Manella

Kernochan Center for Law, Media, and the Arts

This Note will analyze industry concerns relating to the practice of granting above-the-title producer credit to individuals solely for contributing or bundling a share of a production’s capitalization, specifically by asking whether moneybundling Broadway co-producers are acting as unregistered broker-dealers in violation of applicable Security Exchange Commission (“SEC”) registration requirements. In Section I of this Note, I provide a history of Broadway producing models, so as to understand how today’s dominant model developed. In Section II, I unpack that model by describing the structure of theatrical investment vehicles and identifying the different types of Broadway producers. In Sections III and …

Fulfilling States’ Duty To Evaluate Medicaid Waivers, Kristen Underhill, Atheendar Venkataramani, Kevin G. Volpp

Faculty Scholarship

Nearly 75 million U.S. residents have health insurance coverage through Medicaid. Benefits and program designs vary from state to state. One source of state-based variation is Section 1115 projects, which are defined as “experimental, pilot, or demonstration” programs that are “likely to assist in promoting the objectives” of the Medicaid statute. States seeking to implement experimental policies in their Medicaid programs must apply to the Centers for Medicare and Medicaid Services (CMS) for a Section 1115 waiver, which lifts certain federal regulations for 5 years. Thirty-seven states had active Section 1115 waivers as of October 31, 2018, and more than …

Changing International Law For A Changing Climate, Daniel C. Esty, Dena P. Adler

Sabin Center for Climate Change Law

After more than two decades of inadequate international efforts to address climate change resulting from rising greenhouse gas emissions, the 2015 Paris Climate Change Agreement shifted gears. That agreement advances a “bottom-up” model of global cooperation that requires action commitments from all national governments and acknowledges the important role that cities, states, provinces, and businesses must play in delivering deep decarbonization. Given the limited control that presidents and prime ministers have over many of the policies and choices that determine their countries’ carbon footprints, the Paris Agreement missed an opportunity to formally recognize the climate change action commitments of mayors, …

Holding Fossil Fuel Companies Accountable For Their Contribution To Climate Change: Where Does The Law Stand?, Michael Burger, Jessica A. Wentz

Sabin Center for Climate Change Law

The judge who called for a climate tutorial in a federal court in San Francisco accepted the science that says that human-caused emissions of carbon dioxide play the central role in rising average global temperatures, increased sea levels, and coastal flooding – but threw out a lawsuit calling for financial reparations from the oil companies for causing these problems. Why? And what might the decision mean for other cases in other states, along similar lines, that are still in the works? Two environmental lawyers, one of whom was in the courtroom for the tutorial, explain.

The Legal Basis For Imo Climate Measures, Aoife O'Leary, Jennifer Brown

Sabin Center for Climate Change Law

This paper investigates the potential legal bases for the International Maritime Organization (IMO) to enact climate measures. It finds that the IMO has broad powers to enact almost any required measure, and quickly via a tacit amendment to the International Convention for the Prevention of Pollution from Ships (MARPOL).

The Built Environment, Justin Gundlach, Jennier Klein

Sabin Center for Climate Change Law

The built environment, which includes not only buildings but infrastructure, mediates several important climate impacts on public health and is also subject to diverse legal requirements. It is a subject of particular focus for policy efforts aimed at promoting adaptive responses to climate change on the part of institutions and individuals. This chapter presents key examples of public health impacts that arise from climate change but are mediated – possibly mitigated, possibly exacerbated - by elements of the built environment. It also describes the process and substance of adaptive responses to those impacts. Having presented these physical and policy contexts …

Another One Bites The Dust: The Distance Between Luxembourg And The World Is Growing After Achmea, Petros C. Mavroidis, Carlo M. Cantore

Faculty Scholarship

The CJEU has become a gatekeeper. Ever since Opinion 1/91, the CJEU has been imposing barriers to the recognition of decisions by foreign jurisdictions. Its recent Achmea decision is the natural consequence of case law so far. This attitude would not be problematic by itself since, through this attitude, the European Union would still be liable at the international plane, even if it did not implement its international obligations (liability- over property rules). This is not the end of the story. The CJEU accepts the, in principle, relevance of decisions by some international jurisdictions. However, the CJEU has repeatedly failed …

Microgrids And Resilience To Climate-Driven Impacts On Public Health, Justin Gundlach

Sabin Center for Climate Change Law

“Resilience” has burst into the lexicons of several policy areas in recent years, owing in no small part to climate change’s amplification of extreme events that severely disrupt the operation of natural, social, and engineered systems. Fostering resilience means anticipating severe disruptions and planning, investing, and designing so that such disruptions, which are certain to occur, are made shallower in depth and shorter in duration. Thus a resilient system or community can continue functioning despite disruptive events, return more swiftly to routine function following disruption, and incorporate new information so as to improve operations in extremis and speed future restorations. …

Climate Change Impacts On The Bulk Power System: Assessing Vulnerabilities And Planning For Resilience, Justin Gundlach, Romany M. Webb

Sabin Center for Climate Change Law

As the scale, speed, and implications of climate change come into focus, stakeholders in the electricity sector are finding it increasingly difficult to turn a blind eye. However, many have opted to attend to climate impacts in a piecemeal fashion, often merely responding to particular extreme events – or types of extreme events, such as coastal storms or floods – and failing to consider the larger phenomenon. This is true of the bulk power system (BPS) in regions overseen by Independent System Operators and Regional Transmission Organizations (collectively, ISO/RTOs), none of which have comprehensively assessed their systems’ vulnerabilities to climate …

U.S. Climate Change Litigation In The Age Of Trump: Year One, Dena P. Adler

Sabin Center for Climate Change Law

In its first year, the Trump Administration undertook a program of extensive climate change deregulation. The Administration delayed and initiated the reversal of rules that reduce greenhouse gas (GHG) emissions from stationary and mobile sources; sought to expedite fossil fuel development, including in previously protected areas; delayed or withdrew energy efficiency standards; undermined consideration of climate change in environmental review; and hindered adaptation to the impacts of climate change. However, the Trump Administration’s efforts have met with constant resistance, with those committed to climate protections bringing legal challenges to many, if not most, of the rollbacks.

This paper seeks to …

Free Expression On Campus: Mitigating The Costs Of Contentious Speakers, Suzanne B. Goldberg

Faculty Scholarship

“If you’re afraid to offend, you can’t be honest.”

“If you offend me, I can’t hear what you’re trying to tell me.”

—overheard on campus

The debate over how colleges and universities should respond to contentious guest speakers on campus is not a new one. A quick look back to the early 1990s, among other times, shows commentators squaring off much as they do today about the tensions between protecting free expression and ensuring meaningful equality.

Perhaps not surprisingly, the issues that contested speakers address are also much the same as they have been for several decades – government action …

Too Big To Supervise: The Rise Of Financial Conglomerates And The Decline Of Discretionary Oversight In Banking, Lev Menand

Faculty Scholarship

The authority of government officials to define and elimi­nate “unsafe and unsound” banking practices is one of the oldest and broadest powers in U.S. banking law. But this authority has been neglected in the recent literature, in part because of a movement in the 1990s to convert many supervi­sory judgments about “safety and soundness” into bright-line rules. This movement did not entirely do away with discre­tionary oversight, but it refocused supervisors on compliance, risk management, and governance – in other words, on inter­nal bank processes.

Drawing on the rules versus standards debate, this Arti­cle develops a taxonomy for parsing the …

Comparative Approaches To Constitutional History, Jamal Greene, Yvonne Tew

Faculty Scholarship

An historical approach to constitutional interpretation draws upon original intentions or understandings of the meaning or application of a constitutional provision. Comparing the ways in which courts in different jurisdictions use history is a complex exercise. In recent years, academic and judicial discussion of “originalism” has obscured both the global prevalence of resorting to historical materials as an interpretive resource and the impressive diversity of approaches courts may take to deploying those materials. This chapter seeks, in Section B, to develop a basic taxonomy of historical approaches. Section C explores in greater depth the practices of eight jurisdictions with constitutional …

Police, Race, And The Production Of Capital Homicides, Jeffrey A. Fagan, Amanda Geller

Faculty Scholarship

Racial disparities in capital punishment have been well documented for decades. Over 50 studies have shown that Black defendants more likely than their white counterparts to be charged with capital-eligible crimes, to be convicted and sentenced to death. Racial disparities in charging and sentencing in capital-eligible homicides are the largest for the small number of cases where black defendants murder white victims compared to within-race killings, or where whites murder black or other ethnic minority victims. These patterns are robust to rich controls for non-racial characteristics and state sentencing guidelines. This article backs up the research on racial disparities to …

Deploying Advanced Metering Infrastructure On The Natural Gas System: Regulatory Challenges And Opportunities, Romany M. Webb

Sabin Center for Climate Change Law

Recent increases in domestic natural gas use have been widely heralded as a vital step in the fight against climate change. Proponents often characterize natural gas as a “clean” fossil fuel, emphasizing that its combustion produces fewer greenhouse gas emissions than coal and oil (per unit of energy produced). Natural gas combustion still emits large amounts of carbon dioxide, however. Natural gas production and transportation also result in emissions, primarily in the form of methane, which is a highly potent greenhouse gas, with approximately eight-four times the climate impacts of carbon dioxide (on a pound-for-pound basis, over a twenty-year time …

Turning The Tide In Coastal And Riverine Energy Infrastructure Adaptation: Can An Emerging Wave Of Litigation Advance Preparation For Climate Change?, Dena P. Adler

Sabin Center for Climate Change Law

A new wave of “failure to adapt” lawsuits has sought to clarify how a changing climate may change what reasonable preparations governments and private actors must take, including increasing the resilience of their infrastructure. These suits span constitutional, tort, and statutory law more broadly, but unprepared owners of energy infrastructure may risk additional violations under environmental law due to unpermitted releases of air and water pollution during extreme weather events for which they are not adequately prepared. This piece will specifically consider recent legal and administrative suits that may indicate shifting legal responsibilities for coastal and riverine energy infrastructure owners …

Human Rights And Article 6 Of The Paris Agreement: Ensuring Adequate Protection Of Human Rights In The Sdm And Itmo Frameworks, Romany M. Webb, Jessica A. Wentz

Sabin Center for Climate Change Law

Article 6 of the Paris Agreement recognizes the right of Parties to cooperate in the implementation of their nationally determined contributions (NDCs) through both market- and non-market-based approaches. One market-based approach is outlined in Article 6.2 which provides for “the use of internationally transferred mitigation outcomes [(ITMOs)] towards” NDCs. This is widely seen as establishing a “bottom-up” approach, whereby “mitigation outcomes,” representing emission reduction credits, can be transferred internationally and then become ITMOs. It can be contrasted with other market-based approaches that are “top-down,” involving centralized programs supporting emission reduction projects. One such program is created in Article 6.4 of …

What Happened To Byrd-Hagel? Its Curious Absence From Evaluations Of The Paris Agreement, Susan Biniaz

Sabin Center for Climate Change Law

In the midst of the negotiations leading to the Kyoto Protocol in 1997, the U.S. Senate adopted the “Byrd-Hagel Resolution,” co-sponsored by Senators Robert Byrd of West Virginia and Chuck Hagel of Nebraska. Passed by a vote of 95-0, it reflected the Senate’s view that the international climate change agreement then being negotiated by the Clinton Administration was not on the right track. Specifically, it signaled dissatisfaction with an agreement that would contain legally binding greenhouse gas emissions commitments for developed countries without such commitments in the same time period for developing countries.

By its terms, the Byrd-Hagel Resolution applied …

The Rise Of Foreign Ownership And Corporate Governance, Merritt B. Fox

Faculty Scholarship

This chapter explores the link between corporate governance and the rise of foreign ownership. It presents statistics that illustrate the dramatic rise in foreign ownership over the last few decades and then seeks to explain this rise and its relationship to corporate governance. In order to situate the subject under study within its larger context, this explanation starts with an exploration of the factors independent of corporate-governance considerations that favor a global market for securities and those that impede it. It will be shown that the rise in foreign ownership globally can be explained in significant part by the weakening …