Law and Politics Commons^™

Green Dividends: A Case Study In Green Dividends And The Conditions For Private Ordering Solutions, Anne M. Tucker

Seattle University Law Review

This Essay introduces a novel private ordering solution to facilitate corporate investments in pro-social and environmental initiatives: Green dividends. Green dividends are an optional increase in shareholder dividends that are returned to the company to be reinvested in environmental initiatives or kept by a shareholder.

Green dividends pose an alternative to the current gridlocked debate that corporations can’t, won’t, shouldn’t, and shouldn’t even try to act in pro-social or environmental ways. Turning the common refrains on their head converts each narrative into an element for a successful private ordering solution: authority, accountability, shareholder buy-in, and government- backed enforcement. With Green …

Does Climate Disclosure Work To Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism, Cynthia A. Williams

Seattle University Law Review

Significant regulatory resources have been spent developing global, voluntary climate and sustainability disclosure standards, such as the TCFD, TNRD, and ISSB’s Sustainability and Climate Disclosure standards, or domestically required disclosures, such as in the EU and in the U.S. Thus, it is important to evaluate whether this disclosure, particularly voluntary, qualitative disclosure, will have the power to shift the allocation of capital, will have a significant effect on the management of climate risk within firms, and ultimately will reduce climate change risk and biodiversity loss.

In this Article, several interrelated questions will be discussed. First, what does the empirical evidence …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Corporate Scenarios: Drawing Lessons From History, Madison Condon

Seattle University Law Review

As corporations are increasingly pressed to reveal information about their exposure to climate-related risks, they are often asked to undertake and disclose the outcome of “scenario analysis.” In this exercise, corporations, including financial institutions, examine how their business would fare under different pathways the future may take. One oft-used scenario, for example, is the International Energy Agency’s “Net-Zero by 2050: A Roadmap for the Energy Sector.” This Essay presents a history of the use of scenarios as a corporate planning tool, particularly in the oil industry, arguing that it is key for understanding our present moment and the role of …

Dark Accounting Matter, Colleen Honigsberg

Seattle University Law Review

Physicists calculate that approximately 85% of the matter in the universe is composed of “dark matter” that “does not absorb, reflect, or emit electromagnetic radiation and is therefore difficult to detect.” The S&P 500 currently trades at a price-to-book value of 4.2, suggesting that book value accounts for less than 20% of the S&P 500’s market value. The remaining 80% appears nowhere in these firms’ balance sheets—it is invisible to contemporary accounting techniques and constitutes “dark accounting matter.”

Some “dark accounting matter” is composed of factors commonly described as components of “ESG.” Human capital, for example, is an intangible asset …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

The Fiduciary Code Of Capital And Climate Change, Seth Davis, Gregory Shaffer

Georgetown Law Faculty Publications and Other Works

Fiduciary law is part of the “code” for the management of capital, as Katharina Pistor has conceptualized law. Climate activists, attorneys, investors, and international organisations have turned to fiduciary law for legal solutions to the ongoing problem of inadequate corporate and state action in response to climate change. Our thesis is that the turn to fiduciary law by norm entrepreneurs is an attempt to encode a concern for climate change within the management of capital. We make two contributions to the literature on private law and climate change. First, we rigorously identify the features of fiduciary law that make it …

The Employees’ Dilemma: Balancing Internal Reporting, Whistleblowing, And Insider Trading Risks, Geeyoung Min

Seattle University Law Review

The Essay examines how recent developments in insider trading regulations and whistleblower reward programs can lead to unintended and counterproductive results of discouraging employees from using internal reporting channels within corporate compliance programs. While the presence of a robust and well-functioning corporate compliance program is a critical factor both in mitigating the level of public enforcement actions against companies and in protecting corporate managers from liability in private litigation, these programs often provide little incentive for employees to report potential misconduct internally.

Corporate compliance programs are designed to promote the upward information flow within the company, which is essential for …

Understanding The Big Three’S Wavering Support Of Environmental And Social Shareholder Proposals, Jeff Schwartz, Jefferson Jensen

Seattle University Law Review

Because of their substantial equity portfolios, BlackRock, Vanguard, and State Street (the Big 3) are central players in corporate governance. It is, therefore, critical to understand how they vote. One puzzle is that their support for shareholder proposals on environmental and social matters appears to waiver. In 2020, for instance, BlackRock supported 11.1% of environmental proposals at S&P 500 firms. In 2021, it seemingly reversed course, supporting 55.2%. It then flipped again, supporting 32.1% in 2022. Such statistics suggest that the Big 3 are constantly changing their views on these topics. This Article seeks to better understand whether this is …

How The Antidiscrimination Law Of Commercial Transactions Really Works, Helen Norton

Seattle University Law Review

A variety of businesses now cite 303 Creative when seeking First Amendment protection for their refusal to serve certain customers based on those customers’ protected class status. How this litigation will play out remains to be seen. But future courts need not, and should not, repeat the 303 Creative Court’s misunderstanding of how the antidiscrimination law of commercial transactions actually works.

Part I of this Essay explains the Court’s longstanding understanding of the antidiscrimination law of commercial transactions, and then describes the Court’s failure to engage with this precedent in 303 Creative. Part II then identifies the 303 Creative decision’s …

A Constitution Of The Earth, To Save Humanity, Luigi Ferrajoli

Buffalo Law Review

Humanity is facing one of the most dramatic moments in its history. There are several global challenges and problems that are not part of the political agenda of national governments, even though their solution is crucial for the survival of humanity.

The Shaky Democratic Legitimacy Of Cosmopolitan Law And Its Destiny In Times Of Crisis, Sergio Dellavalle

Buffalo Law Review

From its earliest introduction in 1795, the notion of cosmopolitan law has made a long way, to finally become an established reference point in the legal discourse. Nonetheless, the concept still raises four fundamental questions. The first focuses on how it has been developed and which were the fundamental authors and theoretical steps that characterized the emergence of this notion. The second and most essential question refers to the meaning of cosmopolitan law by focusing on what characterizes the legal norms that we call cosmopolitan as well as on what distinguishes them from the broader field of traditional international law. …

Why Law "Beyond The State" Need Not Be A Threat To Democratic Values, Paul Schiff Berman

Buffalo Law Review

Discussions of “law beyond the state” almost inevitably run into objections from those who believe that sub- or supranational legal orders necessarily subvert local democratic governance. Self-proclaimed populists and others express concern that the “will of the people” will be unduly subjected to the dictates of “cosmopolitan elites”1 or local factions, or corporate capture. These objections range across the political spectrum. Those on the right tend to focus on concerns that transnational orders will impose human rights or immigration rules on a national polity, while those on the left worry about trade regimes that might impose local labor or environmental …

Symposium Introduction, Jorge Fabra-Zamora

Buffalo Law Review

No abstract provided.

"Waves Of Freedom": Kant And The Right To Rescue On The High Seas, Aravind Ganesh

Buffalo Law Review

This Article draws upon the legal philosophy of Immanuel Kant to argue that all seafarers—from stateless migrants to billionaires on mega-yachts—possess legal rights to rescue on the high seas. These rights are of the kind legal practitioners call “human rights,” and correspond to obligations enforceable against the flag state of any Coast Guard, naval, or other “public” vessel receiving the seafarers’ distress signals. A second, corollary claim is that we must abandon the “Grotian” model of the seas as commons and view them instead as “global public goods” that the international legal order always already maintains through institutions for the …

Legality Beyond The State, David Lefkowitz

Buffalo Law Review

Inquiry into law beyond the state, or indeed within it, necessarily presupposes a concept of law. Consider, for example, H.L.A.’s account of international law.1 Hart famously characterizes law in terms of a union of primary and secondary rules.2 Understood in functional terms, primary rules govern actions, while secondary rules govern rules. Hart also pays particular attention to a special class of secondary rules, namely those that create specific offices whose occupants are empowered to identify, alter, apply, and enforce a society’s rules. An advanced legal system, then, is a practice of holding accountable constituted by both a hierarchy of norms—primary …

The Rule Of Interlegality, Nicole Roughan

Buffalo Law Review

A “recognition model of legality” grounds legality upon the normative significance of recognition of the role of the official of law, and the requirements of a moral relation of recognition between law’s officials and subjects. On this model, plural overlapping claims to legality can undermine the rule of law by disrupting recognition of both the role of the official and the moral relation of legality between officials and subjects. This Essay examines the legality deficits that arise from conflicting recognitions of officiality and subjection in contexts of overlapping state and Indigenous legal orders. In such contexts of plural overlapping claims …

The Workings Of Legal Exceptionalism: Arbitration As A Portal To Stateless Law-In-Action Regimes, Thomas Schultz

Buffalo Law Review

This Essay seeks to explores the fertility of thinking about arbitration as a portal to stateless legal regimes. Using the distinction between law in books and law in action, as well as the concepts of social and political disembeddedness and quiet politics, it argues that under the current paradigm of arbitration, it operates as a porous portal, getting corporate and natural citizens to escape into stateless law-in-action legal regimes (though in practice not into a law-in-books stateless legal regime). This raises questions of control of and accountability for the political effects of such stateless law-inaction legal regimes on the rest …

The Postnational Aspirations Of European Law, Paul Linden-Retek

Buffalo Law Review

This Essay begins from a particular quarrel over the interpretation of the German Federal Constitutional Court’s PSPP judgment of May 2020 to open onto questions of how to conceive political freedom beyond the nation-state, about the structure of postnational constitutionalism and its purposes, and, finally, about the role of courts within that structure and in light of those aspirations. In arguments defending the Court, an influential strand of constitutional theory, in this Essay represented by the intervention of Ulrich Haltern, continues to channel assumptions that constrain thinking about Europe as a postnational legal order. Assuming that political freedom is essentially …

Is International Law Progressive, Cormac Macamhlaigh

Buffalo Law Review

The rise of authoritarian populism in recent years has raised the question of whether international law can be coopted for authoritarian purposes. Tom Ginsburg has recently argued for the rise of what he calls “authoritarian international law” which, he claims, is undermining the hitherto progressive ethos of international law since the foundation of the United Nations. This paper critically examines this category of authoritarian international law. Adopting a Dworkinian interpretive methodology to the question of the normativity of international law, it argues that a putative authoritarian international law is incompatible with the normativity of international law as currently understood. This …

When European State Courts Face Post-Colonial Legality: A Private International Law Approach Inspired By Decolonial Theory, Sandrine Brachotte

Buffalo Law Review

This Essay develops avenues for private international law (PIL) to deal with cases involving the interaction between Western state law and distinctive forms of law that citizens from post-colonial states, especially African states, bring with them to Europe. Laws of the second type, which I call “postcolonial legality,” incorporate both traditional forms of legality usually dubbed “religious” and “customary” law along with state law that originates from colonial law. Drawing on some lessons from decolonial theory, I try to apply to this particular context a “less colonial” PIL theory and subsequent PIL rules and reasoning. The argument builds on the …

The Priority Of International Law, Pavlos Eleftheriadis

Buffalo Law Review

What is international law? Any theory of international law must explain both its technical nature and its moral force and must also show how the two come together in practice in order to give it the priority that it claims. For example, the genocide cases before the International Court of Justice exhibit a puzzling dedication to procedure. The Court is invited to examine the war in Gaza strictly on the basis of the Genocide Convention, without assessing any allegations of war crimes or other alleged violations of international law. The reason is a well-known procedural rule—namely that states have to …

The Loss & Damage Fund: Will It Leave Greenland Behind?, Natalie L. Nowatzke

Ocean and Coastal Law Journal

The United Nations Framework Convention on Climate Change (UNFCCC) maintains three pillars of international climate governance: (1) mitigation, (2) adaptation, and (3) loss and damage. Loss and damage, the newest pillar, refers to the negative effects of climate change that transpire despite mitigation and adaptation measures. This notion has manifested into the newly operationalized Loss and Damage Fund, which is designed to compensate developing nations for the losses and damages that occur. This Comment identifies a gap in the Loss and Damage Fund, which will leave Greenland left out of receiving compensation, despite being extremely vulnerable to climate change, because …

Arctic Policy Considerations For Scottish Independence, Mason Mcinnis Brewer

Ocean and Coastal Law Journal

The ongoing effects of climate change on the Arctic environment raises the geopolitical importance of the Arctic and nearby regions, such as the broader High North. With deteriorating relations between Russia and much of the international community, changes to international borders in these regions would undoubtedly be a concern for those with Arctic interests. Consequently, due to Scotland’s location in the world, the legal analysis surrounding any Scottish claim to external self-determination under international law would include Arctic considerations. Following a review of the Artic policy priorities of the U.K. and Scottish governments, and each government's involvement in developing those …

Greenland's Foreign Policy, Past And Present: From The Merchants' Message To Bilateral Agreements, Kenneth Høegh

Ocean and Coastal Law Journal

No abstract provided.

The Public Order Of The Arctic: Problems And Prospects, Charles H. Norchi

Ocean and Coastal Law Journal

No abstract provided.

Conservation Co-Governance As A Cure: Investigating Aotearoa New Zealand's Conservation Co-Governance Model As A Blueprint For Restoring Navajo Sovereignty In Managing Canyon De Chelly, Shana R. Herman

Villanova Environmental Law Journal (1991 - )

No abstract provided.

The Goldilocks Dilemma In Terminating Treaties: The Case Study Of Brexit And Trade, Catherine Fabiano

Northwestern Journal of International Law & Business

Treaties are an essential source of international law, and they are permitted to be terminated. The rules governing termination, namely the 1969 Vienna Convention on the Law of Treaties, highlight two main goals of treaties: the stability and flexibility of agreements. Brexit highlights these goals and illustrates the tensions that arise. When parties terminate their treaties, they are ultimately stuck in a goldilocks dilemma. Essentially, the parties have to balance a combination of factors to achieve just the right outcome. The United Kingdom and the European Union were caught in this goldilocks dilemma which Brexit depicts. In the end, the …

Thai Drug Offenses And Narcotic Charges: Tracing Thailand’S Drug Control And Capital Punishment History, Jonathan Hasson, Carolyn Hoyle

Brooklyn Journal of International Law

The Article examines Thailand's political economy of drugs and use of sanctions, including capital punishment, using a historical approach. It traces Thailand's nation building and emergence as a global hub for illicit drugs against the backdrop of European and US interventions since the colonial era. The Article reveals how Western concepts and discourses were appropriated by Thai elites to advance local agendas while suppressing democratic movements. The Article explores how the drug trade became entangled with government corruption, militarization, and extrajudicial state violence which often targeted ethnic minorities. In light of recent cannabis policy changes, the Article considers the historical …