Public choice themes have arisen throughout the history of U.S. energy regulation and continue to be relevant today, particularly with widespread discussion of deregulation and increased attention to climate change. This Article surveys how public choice themes are relevant to understanding a host of issues of importance to the electric power industry today, including the structure of the industry, the significance of wholesale markets, and the division of regulatory power between state and federal authorities. The Article highlights how an understanding of how public choice has contributed to these features of the electric power industry will prove important to the successes and failures of national climate change policy.
Law and Choice of Entity on the Social Enterprise Frontier
Social entrepreneurs are people who envision widespread, systematic social change and who attack society's ills at the roots, employing the spirit and the tools of entrepreneurship. They reject the traditional boundaries between the nonprofit and for-profit sectors and carry out their plans through so-called hybrid social enterprises, which combine the soul of nonprofit organizations with the discipline and business savvy of for-profits. Although social entrepreneurs generally are driven by a desire to do good, they view themselves as businesspeople who are trying to achieve double-bottom-line (financial and social) or triple-bottom-line (financial, social, and environmental) results. Why should the emergence of these new hybrid social enterprises be of particular concern to lawyers? Because their creators say that they inhabit a social frontier, sometimes referred to as the “emerging fourth sector,” where outmoded laws and inappropriate, old-style legal entities hamstring their socially transformative plans. With increasing vehemence, they are demanding new laws, particularly new types of hybrid business entities.
This Article describes the social enterprise frontier, paying particular attention to a recent trend whereby social entrepreneurs form their ventures as for-profit companies even though their ambitions are largely charitable. The paper then critically examines various proposals for creating new types of hybrid for-profit/nonprofit entities to provide a legal structure for fourth sector ventures. The paper concludes that a very recent legal innovation, the Low Profit Limited Liability Company, holds particular promise for meeting the needs of social entrepreneurs and the emerging fourth sector.
Probabilities, Planning Failures, and Environmental Law
Environmental laws often mandate specific environmental outcomes and require agencies to adopt plans designed to achieve those outcomes. But because of pervasive uncertainties, agencies are often unsure if their plans will succeed. Decisionmakers therefore must decide how to balance risks of plan failure against the costs of more cautious regulatory approaches. This Article explores and evaluates legal responses to these dilemmas. I find that environmental statutes and regulations use a patchwork of measures to manage these planning uncertainties. Decisions about planning uncertainty are frequently made on an ad hoc, nontransparent basis, and plans with low success odds are common. That approach is problematic, for it impedes public participation, increases vulnerability to decisionmaking biases, and contributes to regulatory dysfunction. I therefore propose procedural and substantive reforms designed to improve transparency and to reduce the frequency of plan failure.
Reconstructing the Responsibility to Protect in the Wake of Cyclones and Separatism
This Article reconceptualizes the doctrine of the responsibility to protect (R2P). R2P provides that when a government fails to protect its citizens from genocide, war crimes, ethnic cleansing or crimes against humanity (“mass atrocities”), that responsibility shifts to the international community acting through the United Nations. The U.N.'s apparent failure to include natural disasters in the catalogue of harms potentially justifying R2P intervention generated considerable controversy following Myanmar's refusal of foreign aid following the devastation wrought by Cyclone Nargis. Those seeking to limit the scope of R2P considered it inapplicable in the case of Myanmar, reading the U.N.'s focus on mass atrocities as a conscious decision to exclude natural disasters as triggers for R2P. By contrast, supporters of R2P looking to rely on the doctrine to compel Myanmar to accept aid have argued that there is no meaningful distinction between the failure to protect following natural disasters and the failure to protect from mass atrocities.
This Article shows that the causes of the harm are irrelevant. Developing what it labels a “constructive interpretation” of R2P, the Article demonstrates that R2P applies equally to a state's failure to protect its population from harm caused by its omission to act when that omission constitutes a crime against humanity. This thesis is advanced through the novel application of fundamental criminal law principles to the regime of international human rights, and includes a discussion of the extent to which the concept of crimes against humanity can be deployed where the harm to a civilian population comes about by means of inaction rather than action.
Law and Longitude
The story of the eighteenth-century quest to “find the longitude” is an epic tale that blends science with law. The problem of determining longitude while at sea was so important that the British Parliament offered a large cash prize for a solution and created an administrative agency, the Board of Longitude, to determine the winner. The generally popular view is that the Board of Longitude cheated John Harrison, an inventor, out of the great longitude prize. This Article examines the longitude story from a legal perspective. The Article considers how a court might rule on the dispute between Harrison and the Board of Longitude. The Article suggests that the popular account of the dispute is unfair to the Board. The Board gave a reasonable interpretation to the statute creating the longitude prize and was not improperly biased against Harrison's method of solving the longitude problem. The Article concludes with some lessons the longitude story offers for modern intellectual property and administrative law.
Domestic Courts and Global Governance
Domestic court decisions often make headlines around the world. For example, recent United States Supreme Court decisions about the International Court of Justice and the rights of foreign detainees held by the United States at Guantanamo Bay have attracted international attention. However, the role of domestic courts in the world extends far beyond headlines. Seemingly routine decisions on issues such as personal jurisdiction, forum non conveniens, choice of law, extraterritoriality, and arbitration have implications for global governance. Legal scholarship divides these issues into doctrinal categories like civil procedure, conflict of laws, and international law. But by doing so, it misses the bigger picture: for better or worse, domestic courts are pervasively involved in regulating transnational activity.This Article cuts across doctrinal categories to provide a systematic analysis of the global impact of domestic courts. It argues that domestic courts perform two global governance functions: they allocate governance authority, and they determine rights and obligations of transnational actors. It shows that these functions matter not only for litigants, but also for global welfare. And it proposes a method to critically evaluate these functions that moves beyond traditional litigant-focused assessments to analysis of the cross-border effects of domestic court decisions. This method will allow scholars and policy makers to develop the empirical foundations needed for the intensifying debate over the proper role of domestic courts in addressing global challenges.
Interpreting Ne Exeat Rights as Rights of Custody: The United States Supreme Court's Chance to Advance the Purposes of the Hague Convention on International Child Abduction
In Abbott v. Abbott, the United States Supreme Court will construe the Hague Convention on the Civil Aspects of International Child Abduction. Specifically, the Court will determine whether a ne exeat clause, which precludes a parent from taking his or her child out of the country without the other parent's consent, is a “right of custody” for purposes of the Convention. The U.S. circuit courts are divided on the issue, and the approach of the majority of circuits is in opposition to the approach taken by the majority of foreign courts that have addressed the issue. This Comment argues that the Court appropriately granted certiorari in Abbott and that the Court should decide that the rights conferred by a ne exeat clause do constitute rights of custody under the Convention.
How the Legal Regimes of the European Union and the United States Approach Islamic Terrorist Web Sites: A Comparative Analysis
Eight years after the 9/11 terrorist attacks it comes as no surprise that the Internet has become a tool of terrorism. In addition to using the Internet to spread propaganda and raise funds to support their cause, terrorists also use the Internet to recruit and train new members. What should come as a surprise, however, is that the U.S. government has failed to take any steps towards deterring terrorist recruitment and training online. In stark contrast, the European Union recently passed three laws targeted directly at online terrorist activity, including: (1) public provocation to commit a terrorist offense, (2) recruitment for terrorism, and (3) training for terrorism. This Comment compares how the legal regimes of the United States and the European Union differ in their approaches to online terrorist activity and suggests a new approach for the United States—one that balances increased action against creators and developers of terrorist Web sites with freedom of speech.
More Cooperation, Less Uniformity: Tax Deharmonization and the Future of the International Tax Regime
Efforts to foster improved international tax cooperation have become preoccupied with tax harmonization. Deharmonization offers the possibility of harmony without uniformity. By exploring two examples of tax deharmonization in practice and considering the origins and limitations of tax harmonization, this Article brings the traditional emphasis on harmonization into question. It then makes the case that deharmonization--cooperation without uniformity-- could provide a viable alternative. Achieving tax deharmonization's potential would require revisiting some of the most basic elements of our current international tax regime, particularly the benefits principle.
Hull Insurance and General Average -- Some Current Issues
This Article visits some current topics of interest in the area of hull and machinery insurance and general average. It examines the imperfect indemnity that can arise when the owner of a laden cargo vessel incurs expenditure in an unsuccessful attempt to salvage it after the operation of a maritime peril; recent developments in the evolution of the York-Antwerp Rules where, for the first time, we have two versions, the 1994 Rules and the 2004 Rules, existing in parallel with each other; the emerging phenomenon of pirates hijacking vessels for ransom; and the increasing trend towards absorbing general average up to a certain, previously agreed threshold under hull and machinery insurance policies.