Digital Commons Network^™

Just Transition Litigation In Latin America: An Initial Categorization Of Climate Litigation Cases Amid The Energy Transition, Maria Antonia Tigre, Lorena Zenteno, Marlies Hesselman, Natalia Urzola, Pedro Cisterna-Gaete, Riccardo Luporini

Sabin Center for Climate Change Law

Just transition litigation is a novel field representing a sub-set of climate change litigation cases that is under-researched and studied. The report provides a novel comparative analysis of legal developments found in 20 just transition litigation cases in four Latin American countries and questions whether initiatives for achieving energy transformation in the region may have erred in failing to consider key just transition principles or dimensions, leading applicants to bring legal cases to claim their rights or demand more just solutions. The cases found – limited to the energy sector – not only question decarbonization policies or projects (in typical …

Towards Critical Environmental Justice Approach In Multicultural Divided States: Lessons From The Israeli Regulative System, Manal Totry-Jubran

Fordham Environmental Law Review

This article draws upon the evolving framework of the Critical Environmental Approach in examining the conceptualization and manifestation of the Environmental Justice approach and its pillars within the regulatory system of multicultural and divided societies. These are states comprised of marginalized ethnic and minority groups that frequently face instances of social and environmental injustice. Employing this perspective through a case study show that gradual and anecdotic but unorganized and incoherent incorporation of Environmental Justice pillars lacks the capacity to effectively address long-standing historical environmental injustices and fails to challenge the prevailing social framework. In fact, it runs the risk of …

Court Polarization: A Comparative Perspective, Iddo Porat

UC Law SF International Law Review

Polarization is on the rise around the globe. Political views are driven to the poles, and moderate views are weakened. Many studies have been carried out on the increase in social and political polarization, but far fewer on the effects of polarization on constitutional and supreme courts, and none on a comparative or global scale. This Article attempts to fill this gap. It aims, for the first time, to describe and typologize the effects of political polarization on constitutional and supreme courts in different parts of the world.

The Article identifies three models of such effects: mirror polarization (the U.S.) …

Hello, World? Domestic Software Patent Protection Stands Alone Due To Uncertain Subject Matter Eligibility Jurisprudence, Maxwell H. Terry

Minnesota Law Review Vols. 106:2 onward (2021-present)

In the last sixteen years, software-related inventions have encompassed the majority of all utility patents issued in the United States. Further, studies estimate that spending within the global information technology market will grow to $4.6 trillion in 2023, as industries such as data security, cloud computing, and artificial intelligence continue to innovate and expand at alarming rates. Needless to say, software is a crucial and ever-expanding industry for the global economy. In a series of recent cases, however, the Supreme Court injected unpredictability into the patenting of software and computer-implemented inventions by overhauling the long-standing patentable subject matter doctrine.

Embodied …

Banking Deserts, Structural Racism, And Merger Law, Christopher R. Leslie

Minnesota Law Review Vols. 106:2 onward (2021-present)

Roughly seventy million Americans cannot access a bank account or traditional financial services. Many of these individuals live in a “banking desert”—a town or community that has neither an independent bank nor a branch office of a larger bank. The United States has over 1,100 banking deserts, with another 1,000 communities at risk of losing their last bank. Banking deserts are generally in low- and moderate-income neighborhoods, which are disproportionately communities of color. Residents of banking deserts lack access to credit, including mortgages and small business loans, as well as savings accounts and other basic financial services. Consolidation in the …

Beyond The Business Case: Moving From Transactional To Transformational Inclusion, Jamillah Bowman Williams

Seattle University Law Review

While workplace diversity is a hot topic, the extent to which the diversity management movement has effectively improved intergroup relations and reduced racial inequality remains unclear.1 Despite large investments in diversity and inclusion training and other company wide initiatives, historically excluded groups remain vastly underrepresented in leadership and the most lucrative careers, such as finance, law, and technology. This calls the efficacy of diversity, equity, and inclusion (DEI) efforts into question, particularly with respect to reducing racial inequality in the workplace.

This Article explains why it is time for organizational leaders to move beyond the transactional case for diversity and …

Abortion Localism And Preemption In A Post-Roe Era, Kaitlin A. Caruso

Faculty Publications

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court eliminated federal constitutional protections for abortion in the United States, overruling Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. That ruling returned much regulation of abortion to state control. But it will also accelerate a longstanding trend: municipal abortion regulation. And in the current world of local government law, increased local activity brings with it the question of state preemption. This article is the first to bring together the history and trends in local abortion policy with intrastate preemption doctrine to fully canvass the post-Roe local abortion …

The Right To Migrate, Matthew J. Lindsay

All Faculty Scholarship

Since the late-19th century, the Supreme Court has insisted that the preservation of national sovereignty requires a constitutional chasm between immigration law and ordinary law. If the Court is to bridge that chasm, it must reimagine the long-standing premise of the federal immigration power that the presence of noncitizens in U.S. territory menaces the nation’s sovereignty and security. This Article contributes to that reimagining by chronicling a compelling alternative worldview with a venerable historical pedigree—that of a quintessentially American right to migrate.

During the Founding Era, American statesmen described the impoverished subjects of Europe’s monarchies as protagonists in an unfolding …

Residents Against Housing: A Response To Professor Infranca’S ‘Differentiating Exclusionary Tendencies’, Lee Anne Fennell

Articles

Incumbent residents routinely oppose residential development.¹ Interestingly, this is true of both homeowners and renters, if for opposite reasons. Homeowners typically worry that new housing will cause the market value of their own homes to fall, resulting in a hit to what is usually a house-heavy personal wealth portfolio.² Tenants typically worry that new housing will cause the market value of their own homes to rise, generating pressure toward higher rents and displacement.³ Both homeowners and tenants also express concern that new housing development will change the character of their neighborhoods in unwanted ways.⁴

Resident opposition …

Moderating The Fediverse: Content Moderation On Distributed Social Media, Alan Rozenshtein

Articles

No abstract provided.

San Antonio Independent School District V. Rodriguez At Fifty: Contingencies, Consequences, And Calls To Action, Martha Minow

Loyola University Chicago Law Journal

When the Supreme Court of the United States decided San Antonio Independent School District v. Rodriguez, the Court’s five-to-four decision not only closed the door to federal courts to predominantly Mexican American low-income students seeking constitutional protection against unequal public education; it also rejected claims of federal constitutional right to equal educational opportunity, rebuffed calls for heightened judicial scrutiny of classifications drawn on the basis of wealth or poverty, and let stand unaltered school finance arrangements producing different per pupil expenditures depending solely on where students live. Setbacks though can inspire. Faced with the decision in Rodriguez, advocates …

His Ship Has Sailed—Expelling Columbus From Cultural Heritage Law, Emily T. Behzadi

Faculty Scholarship

Latin America is a region rich with cultural heritage that existed for centuries before its antiquities were looted, trafficked, and sold on the international market. The language used to classify these objects of cultural heritage has been a tool of oppression and erasure. In reference to those objects of historical importance, auction houses, dealers, museums, and even looters themselves consistently use the term “Pre-Columbian.” “Pre-Columbian,” which means “before Columbus,” defines the historical period prior to the establishment of the Spanish culture in the national territories of Mexico, Central America, South America, and the Caribbean islands. In fact, this definition is …

A Research Agenda For Standards-Essential Patents, Jorge L. Contreras

Utah Law Faculty Scholarship

This Chapter discusses the current state of legal, economic and policy research on standards-essential patents (SEPs) and fair, reasonable and nondiscriminatory (FRAND) licensing of SEPs, and recommends additional research directions for the future. Areas for future research include the investigation of market adoption of standardized products subject to FRAND licensing and available on a royalty-free basis, measurement of various characteristics of SEPs including disclosure, validity, essentiality and transfer, the evolution of SDO and consortia patent policies, SEP licensing behavior, both by SEP holders and product manufacturers, SEP and FRAND disputes and litigation, including arbitration, and competition among patent pools for …

Equitable Funding For Trauma Informed Social Policy: A Critical Analysis Of The 2019-2020 Pennsylvania Department Of Education School Safety And Security Grant Program, Heather Bickley

West Chester University Doctoral Projects

This study is a critical analysis of the funding distribution of the 2019-2020 Pennsylvania Commission on Crime and Delinquency (PCCD) School Safety and Security Grant (SSSG) to identify if there is evidence of inequity in the grant's funding distribution. It used a theoretical framework that includes a transformative paradigm with trauma informed social policy as a theoretical lens, with the conceptual lenses education debt and distributive justice, applied to a concurrent mixed methods design. The research followed a QuantCrit methodology, and the features of a critical policy analysis were used to present the findings.

The quantitative tests found several significant …

The Democratic Imperative To Make Margins Matter, Daniel Wodak

Maryland Law Review

No abstract provided.

Climate Change And The Challenge To Liberalism, Jacob Eisler

Scholarly Publications

In this editorial, we consider the ways in which liberal constitutionalism is challenged by and presents challenges to the climate crisis facing the world. Over recent decades, efforts to mitigate the climate crisis have generated a new set of norms for states and non-state actors, including regulatory norms (emission standards, carbon regulations), organising principles (common but differentiated responsibility) and fundamental norms (climate justice, intergenerational rights, human rights). However, like all norms, these remain contested. Particularly in light of their global reach, their specific behavioural implications and interpretations and the related obligations to act remain debatable and the overwhelming institutionalization of …

Voting Rights In Corporate Governance: History And Political Economy, Sarah Haan

Faculty Scholarship

No abstract provided.

The Color Of Equity: Observations Of A Brown Buffalo On Indigenous Water Rights, Japanese Internment, And The Socio-Legal History Of The Colorado River, Tom I. Romero Ii

Scholarly Works

No abstract provided.

The Color(Blind) Conundrum In Colorado Property Law, Tom I. Romero Ii

Scholarly Works

No abstract provided.

Community Accountability, M. Eve Hanan, Lydia Nussbaum

Scholarly Works

This Essay takes a close look at how the idea of community accountability is used in current transformative and restorative justice efforts, situating the concept within the history of delegalization, or a collection of different efforts to reclaim conflict resolution and public safety from the state. In fact, these efforts to reclaim the authority and means of redressing harm from legal systems may track earlier efforts to reclaim dispute resolution from the state. In Part I, we situate both transformative and restorative justice movements in the history of delegalization while noting essential differences between the objectives of these two reform …

Terror And Tenderness In Criminal Law, M. Eve Hanan

Scholarly Works

The criminal legal system is at a crossroads. Calls for abolition are met with calls for modest adjustments or maintenance of the status quo. What frequently emerges from these polarities is a promise that police, prosecutors, judges, and other government actors will use their vast discretion to reduce the harmful excesses of criminal legal practices. Initiatives like “compassionate release,” “second look sentencing,” and the progressive prosecutor’s pledge to “charge with restraint” are examples of this promise to exercise discretion with care. In word choice and design, these discretionary reforms suggest tempering harsh criminal legal practices with leniency and individualized consideration—a …

The Color(Blind) Conundrum In Colorado Property Law, Tom I. Romero Ii

University of Colorado Law Review

No abstract provided.

Labor Mobility And The Problems Of Modern Policing, Jonathan S. Masur, Aurélie Ouss, John Rappaport

Public Law and Legal Theory Working Papers

We document and discuss the implications of a striking feature of modern American policing: the stasis of police labor forces. Using an original employment dataset assembled through public records requests, we show that, after the first few years on a job, officers rarely change employers, and intermediate officer ranks are filled almost exclusively through promotion rather than lateral hiring. Policing is like a sports league, if you removed trades and free agency and left only the draft in place.

We identify both nonlegal and legal causes of this phenomenon—ranging from geographic monopolies to statutory and collectively bargained rules about pensions, …

The Importance Of Exit Via Acquisition To Venture Capital, Entrepreneurship, And Innovation, Devin Reilly, D. Daniel Sokol, David Toniatti

Minnesota Journal of International Law, Vols. 28:2 onward (2019-present)

Antitrust regulators around the world, including in the UK, have proposed changes to merger review policies that impact how acquisitions of start-ups would be investigated and evaluated. Such changes will likely lead to heightened scrutiny—and increased costs and longer reviews—for many acquisitions, including both horizontal and non-horizontal mergers. In evaluating the merits of such changes, it is critical to take into account the important role that exit via acquisition plays in providing incentives for venture capital (VC) investment and entrepreneurship. This article seeks to provide context for evaluating the effects of such proposed changes. First, it documents the links among …

The Targeting Of Underseas Communications Cables: Armed Conflict, Developing States, And The Need For A Twail Approach, Stephen Floyd

Minnesota Journal of International Law, Vols. 28:2 onward (2019-present)

No abstract provided.

Built For Business: The Commercial Need For Aggregate Litigation, Jack Zarin-Rosenfeld

Connecticut Law Review

Commercial actors long have argued that class actions are bad for business. But for even longer, business groups have supported other types of aggregate litigation that closely resemble class actions, such as expansive federal bankruptcy. While critics have successfully limited national aggregation via class actions, they have not even attempted to criticize aggregation via bankruptcy.

Why have business groups attacked aggregate litigation in some cases and supported it in others? This Article provides an answer by examining aggregation’s origins and development, and what emerges, it turns out, is very much the opposite of what aggregation’s pro-business critics would have us …

Illuminating The Land-Energy Nexus, Danielle Stokes

Law Faculty Publications

The complexities of climate change have infiltrated every facet of life. From environmental preservation and food production to employment opportunities and policymaking, climate plays a role. These respective touchpoints have a direct connection to the Farm Bill. This law serves as the crux of agricultural programs and cements the relationship between farmers and the federal government. What began as a safety net following the Great Depression has expanded into a multi-title behemoth that now regulates nutrition assistance, rural economic development initiatives, and everything in between. In recent years, thought leaders such as the Farm Bill Law Enterprise have brought climate-centered …

Enhancing Rural Representation Through Electoral System Diversity, Henry L. Chambers Jr.

Law Faculty Publications

Rural Virginians face disparities in outcomes regarding healthcare, access to important infrastructure, and other services. Some disparities may be related to rurality. The sparseness of population in rural areas may limit the sites where people may access services, triggering the need to travel significant distances to obtain goods and services in such areas. Limited access may lead to disparities even when the quality of goods and services in rural areas is high. The disparities affect all rural Virginians, but disproportionately affect rural Virginians of color. The causes of the disparities are complex and myriad, and may be based on race, …

Building The World We Want In An Era Of Climate Anxiety, Rebecca Bratspies

Chapman Law Review

"It is 'unequivocal' that human activity is driving climate change.2 For clarity, unequivocal means 'leaving no doubt: clear, unambiguous[.]'3 The mean global temperature is already more than 1.1ºC above pre-industrial levels.4 And the trajectory is heading in the wrong direction. Keeping temperature increases below 1.5ºC, the level generally agreed on as essential for preventing the worst climate catastrophes,5 seems increasingly out of reach.6 Moreover, even at current levels of warming, the global climate appears to have gone completely off the rails. Widespread, rapid changes ranging from extreme temperatures,7 violent storms,8 accelerating ice melt,9 and expanding wildfire zones10 have become commonplace."

Comparing Agency Costs In Contract Production: Private Equity M&A Versus Corporate And Sovereign Bonds, Stephen J. Choi, Mitu Gulati, Robert E. Scott

Faculty Scholarship

Different areas of transactional practice, such as M&A or high-yield bonds and sovereign bonds, vary in terms of the degree to which they are afflicted by agency problems. In some areas, clients are actively involved in deal making, and in others they are not present until well after the deal is done. If vulnerability to agency problems differs, and these agency problems impact the quality of contract production, one would expect those differences to appear when comparing contract production across practice areas. This Article compares one feature of contract production — the problems of encrusted and sticky boiler-plate — across …