Environmental Law Commons^™

Displacing Climate Precarity, Camila Bustos, Julia Neusner

Elisabeth Haub School of Law Faculty Publications

In this Essay, we explore these questions and present a two-part argument. In Parts II and III, we argue that because climate change is exacerbating other drivers of displacement, it is seldom possible to attribute movement to any single factor or to categorize movement conclusively as voluntary or involuntary. Therefore, expanding pathways to safety for all people on the move is the best approach to protect those displaced, directly or indirectly, by climate change and environmental disasters. In Part IV, we argue that, despite attribution and definitional challenges with regard to climate-related mobility, documenting and assessing the role of climate …

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.

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.

Climate Change And Cross-Border Displacement: What The Courts, The Administration, And Congress Can Do To Improve Options For The United States, Kate Jastram

Case Western Reserve Journal of International Law

There is no doubt that the United States, even under existing law, could do much more to protect people displaced across international borders in the context of climate change and disasters. All branches of government have a role to play. Federal courts must thoughtfully assess litigants bringing asylum and CAT claims in the context of climate change and disasters. The administration must clarify interpretation of the refugee definition and use all available tools at its disposal to create new legal pathways as outlined in the White House Report. For its part, Congress must modernize the statutory basis for international protection …

Climate Change And Internal Displacement In Colombia: Chronicle Of A Tragedy Foretold?, Camila Bustos

Case Western Reserve Journal of International Law

One of the key challenges stemming from climate change will be climate displacement, as sudden and gradual events disrupt livelihoods and force millions to leave their homes. Despite the existing scholarship’s focus on cross-border movement, the majority of climate displaced people will move internally instead of or before seeking refuge outside their nation’s borders. What obligations do states owe to their citizens when those states have historically not been emitters but have still failed to protect domestic populations from displacement related to environmental disasters and climate change impacts? Through exploring the disaster management framework in Colombia and conducting a case …

Fossil Fuel Fraud, Wes Henricksen

Case Western Reserve Journal of International Law

In some recent climate litigation cases, plaintiffs have added a claim for common law fraud, in addition to the more traditionally pursued claims for nuisance, negligence, and trespass. Fraud claims against fossil fuel companies center on the decades-long campaign of climate change doubt that was organized, funded, and carried out by oil, gas, and coal industry leaders, as well as public relations firms and industry advocacy groups working on their behalf. But while the doubt campaign certainly fits the fraud mold—a purposeful effort to mislead for profit—because it was aimed at defrauding the public at large, rather than defrauding a …

Closing Remarks: Toward A Climate Migration Solution, Austin T. Fragomen, Jr., Nancy H. Morowitz

Case Western Reserve Journal of International Law

No abstract provided.

Talking Foreign Policy: "Foreign Policy And Climate Change" November 20, 2023 Broadcast, Cwru Law School

Case Western Reserve Journal of International Law

No abstract provided.

Disclosure, Greenwashing, And The Future Of Esg Litigation, Jason J. Czarnezki, Barbara Ballan

Elisabeth Haub School of Law Faculty Publications

The Environmental, Social, and Governance (“ESG”) disclosure movement is expanding both voluntarily, as businesses choose to disclose this information, and mandatorily, as government agencies impose disclosure requirements. As ESG disclosure expands, so do the litigation risks. “Greenwashing” refers to presenting false or misleading environmental or sustainability (i.e., “green”) qualities of products, services, or practices. Businesses may greenwash consumers as well as investors with false and misleading ESG disclosures in advertising, securities filings, or other public statements activating greenwashing litigation from investors and consumers. This Article addresses (1) the laws and regulations that cover consumer and securities greenwashing litigation, (2) how …

Infrastructural (Dis)Entitlement: Tactics Of Dispossession On The Critical Minerals Frontier, Dayna Nadine Scott

Articles & Book Chapters

In Ontario’s far north, settler state authorities and extractive firms are engaged in coordinated tactics to gain ground amid a polarization in the positions of Indigenous leadership. Alongside a surging resistance, we also witness a resigned acceptance of critical minerals mining by some First Nations. Drawing on years of community engaged research, I detail here the contemporary tactics of “infrastructural (dis)entitlement:” in this dynamic, infrastructural needs are both denied and fulfilled to differential effect. Infrastructural disentitlement is passive; it is not necessarily deliberate, nor is it politically or institutionally organized. But infrastructural entitlement is strategic and aggressive: Indigenous prosperity and …

Calming The Waters: The International Atomic Energy Agency As A Viable Model To Address Water Weaponization, Jenna Beasley

Emory International Law Review

No abstract provided.

Public Primacy In Corporate Law, Dorothy S. Lund

Seattle University Law Review

This Article explores the malleability of agency theory by showing that it could be used to justify a “public primacy” standard for corporate law that would direct fiduciaries to promote the value of the corporation for the benefit of the public. Employing agency theory to describe the relationship between corporate management and the broader public sheds light on aspects of firm behavior, as well as the nature of state contracting with corporations. It also provides a lodestar for a possible future evolution of corporate law and governance: minimize the agency costs created by the divergence of interests between management and …

Robo-Voting: Does Delegated Proxy Voting Pose A Challenge For Shareholder Democracy?, John Matsusaka, Chong Shu

Seattle University Law Review

Robo-voting is the practice by an investment fund of mechanically voting in corporate elections according to the advice of its proxy advisor— in effect fully delegating its voting decision to its advisor. We examined over 65 million votes cast during the period 2008–2021 by 14,582 mutual funds to describe and quantify the prevalence of robo-voting. Overall, 33% of mutual funds robo-voted in 2021: 22% with ISS, 4% with Glass Lewis, and six percent with the recommendations of the issuer’s management. The fraction of funds that robo-voted increased until around 2013 and then stabilized at the current level. Despite the sizable …

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. …

The Pioneers, Waves, And Random Walks Of Securities Law In The Supreme Court, Elizabeth Pollman

Seattle University Law Review

After the pioneers, waves, and random walks that have animated the history of securities laws in the U.S. Supreme Court, we might now be on the precipice of a new chapter. Pritchard and Thompson’s superb book, A History of Securities Law in the Supreme Court, illuminates with rich archival detail how the Court’s view of the securities laws and the SEC have changed over time and how individuals have influenced this history. The book provides an invaluable resource for understanding nearly a century’s worth of Supreme Court jurisprudence in the area of securities law and much needed context for …

Three Stories: A Comment On Pritchard & Thompson’S A History Of Securities Laws In The Supreme Court, Harwell Wells

Seattle University Law Review

Adam Pritchard and Robert Thompson’s A History of Securities Laws in the Supreme Court should stand for decades as the definitive work on the Federal securities laws’ career in the Supreme Court across the twentieth century.1 Like all good histories, it both tells a story and makes an argument. The story recounts how the Court dealt with the major securities laws, as well the agency charged with enforcing them, the Securities and Exchange Commission (SEC), and the rules it promulgated, from the 1930s into the twenty-first century. But the book does not just string together a series of events, “one …

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 …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

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 …

Defeat Fascism, Transform Democracy: Mapping Academic Resources, Reframing The Fundamentals, And Organizing For Collective Actions, Francisco Valdes

Seattle University Law Review

The information we gathered during 2021–2023 shows that critical faculty and other academic resources are present throughout most of U.S. legal academia. Counting only full-time faculty, our limited research identified 778 contacts in 200 schools equating to nearly four contacts on average per school. But no organized critical “core” had coalesced within legal academia or, more broadly, throughout higher education expressly dedicated to defending and advancing critical knowledge and its production up to now. And yet, as the 2021–2022 formation of the Critical (Legal) Collective (“CLC”) outlined below demonstrates, many academics sense or acknowledge the need for greater cohesion among …

Sffa V. Harvard College: Closing The Doors Of Equality In Education, Ediberto Roman

Seattle University Law Review

The United States Supreme Court’s recent combined decision ending affirmative action in Students for Fair Admissions v. Harvard College and Students for Fair Admissions v. University of North Carolina was hailed in conservative circles as the beginning of “the long road” towards racial equality. Others declared that “the opinion may begin the restoration of our nation’s constitutional colorblind legal covenant.” Another writer pronounced, “Affirmative action perpetuated racial discrimination. Its end is a huge step forward.” A Washington-based opinion page even declared: “[T]he demise of race-based affirmative action should inspire renewed commitment to the ideal of equal opportunity in America.” Despite …

Religious Freedom And Diversity Missions: Insights From Jesuit Law Deans, Anthony E. Varona, Michèle Alexandre, Michael J. Kaufman, Madeleine M. Landrieu

Seattle University Law Review

This Article is a transcript of a panel moderated by Anthony E. Varona, Dean of Seattle University School of Law. During the panel, Jesuit and religious law school deans discussed what law schools with religious missions have to add to the conversation around SFFA and the continuing role of affirmative action in higher education.

The Class Of Injuries Test: A Unifying Proposal To Determining Duty, Proximate Cause, And Superseding Cause In Negligence Claims, Judge Leonard J. Feldman, Julia Doherty

Seattle University Law Review

While there seems to be universal agreement that liability in tort cannot be unlimited, there is widespread disagreement regarding the various tests that courts utilize to limit such liability. We assume here that breach can be proven: the defendant failed to conduct themself in accordance with the salient standard of conduct (for example, failure to exercise reasonable care under all the circumstances). In the ensuing litigation, the court and jury are asked to decide several issues that each limit liability for negligence. Here, we focus on three oft-debated issues: duty, proximate cause, and superseding cause. The tests for each are …

Ai, New Technologies, And Corporate Governance: Three Phenomena, Martin Petrin

Seattle University Law Review

Artificial intelligence (AI) and other new technologies are increasingly influencing the operations, business models, and structures of companies. This Article focuses on three emerging phenomena that impact significant aspects of corporate governance and regulation: (1) perforation and blurring of firm boundaries through the ubiquitous use of externally provided AI services; (2) businesses engaging in strategic access and leveraging of critical resources held by third parties without owning them; and (3) the unusual hybrid role of online platforms between market facilitators and markets themselves. The Article explores how these phenomena challenge traditional views of firms as separate units, with technology leading …

A Meaningful Life: The Future Of Juvenile Justice In Washington After Anderson, Samuel Coren

Seattle University Law Review

Until 2022, Washington’s line of juvenile sentencing jurisprudence gave every indication of continuing along the course set by Miller v. Alabama, as Washington courts recognized that “children are different” and should not be subjected to the harshest punishments available in the criminal legal system. State v. Anderson marked a stark diversion from this course. In upholding the constitutionality of a de facto life sentence for a juvenile, the Washington Supreme Court all but rejected the well-established scientific consensus surrounding juvenile brain development and implicit racial bias. Whether this decision reflects a minor aberration or a broader trend in the court’s …

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 …

A Blueprint To Reclaim Legal Education From External Rankers, Scott Rempell

Seattle University Law Review

The U.S. News & World Report (U.S. News) law school rankings have impacted the perceptions and behaviors of everyone in the rankings ecosystem for decades. Commentators have almost universally condemned these ordinal rankings, yet they continue to influence the legal education market, often in highly detrimental ways.

The influence of these rankings stems from legitimate market demands, for reasons that the psychology of choice literature makes clear. People want (or need) to efficiently acquire and digest information that could help them make consequential decisions. At a time when consumers of law school information did not have such choice-making assistance, U.S. …

Real-World Consequences For Online Actions: The Case For Expanding Employee Harassment Protection Via Employers’ Rights Of Action, Alexander Barnes

Seattle University Law Review

This Note argues for expanding employers’ access to legal remedies that allow them to recoup the costs of protecting their employees from swatting, doxing, and other online harassment arising from their employees’ professional activity. Part I provides a brief description and history of the online harassment problem and its potentially deadly dangers. Part II describes employers’ legal responsibility to take action to protect their employees from harassment aimed at their employees within the scope of their employment. Part III explores common legal remedies that are currently available to employers, using the state of Washington as an example. Part III also …