Pledging Movable Property in Saudi Arabia: Unleashing Secured Lending

Saudi Arabia has created much needed legal certainty over pledging personal property with the issuance of the royal decree entitled “Securing Rights with Movable Property Law” (the 2020 Movable Property Decree”), also referred to as the Moveable Assets Security Law or MASL. The 2020 Movable Property Decree incorporates the best and most innovative approaches and frameworks from other jurisdictions for secured lending. The 2020 Movable Property Decree has enormous potential to help achieve the results of Vision 2030 for Saudi Arabia. Firms should consider entering into the different forms of secured lending transactions that are expressly covered by the 2020 Movable Property Decree. To add legal certainty, regulators should consider expressly clarifying and confirming that participation interests in limited liability companies should be characterized as movable property, making them eligible to be pledged. Finally, Saudi Arabia should consider expressly allowing firms to pledge intellectual property as security for their obligations

Blockchain Real Estate and NFTs

Non-fungible tokens (popularly known as NFTs) and blockchains are frequently promoted as the solution to a multitude of property ownership problems. The promise of an immutable blockchain is often touted as a mechanism to resolve disputes over intangible rights, notably intellectual property rights, and even to facilitate quicker and easier real estate transactions.In this Symposium Article, we question the use of distributed ledger technologies as a method of facilitating and verifying the transfer of physical assets. As our example of an existing transfer method, we use real property law, which is characterized by centuries-old common law rules regarding fractionalized ownership and local land records that still, in many jurisdictions, rely on paper. We explain the history of real property title protection and then identify the problems with the existing system. We then compare the extant system (and its problems) with what blockchain could offer, concluding that a blockchain system would provide few, if any, benefits.That said, we concede that tracking and transferring ownership of certain rights—specifically, purely intangible rights—is a long-standing legal problem that begs for resolution. We focus on ownership signals, and contrast ownership of physical assets—which is broadcast in part by manual possession in addition to, in the real estate realm, recording—and ownership of intangible assets, which cannot be possessed in a way that easily gives a signal to the entire world that the possessor is the owner. Because of that difference, we conclude that the true use case for NFTs and distributed ledgers is in tracking and verifying ownership of intangibles

Decarbonizing Constitutions

The threat of climate change demands far-reaching, systematic changes to the global economy—and similar changes to how governments around the world set environmental policies. In recent years, many environmental policymakers have developed plans to “decarbonize” the economy. These plans provide detailed, sector-specific plans for how the latest scientific consensus on climate change can be incorporated into the policymaking process and for how the Sustainable Development Goals can be achieved. But articulating the policies is one thing—actually setting them is another

The Environmental Rights Provisions of U.S. State Constitutions: A Comparative Analysis

Nearly every U.S. state has environmental provisions in its constitution. These provisions cover a wide range of issues concerning the manner in which the environment and natural resources are to be governed (e.g., public funding, eminent domain, public trust, access to water, legislative responsibility). But only six declare a right to a quality environment. These are Hawai’i, Illinois, Massachusetts, Montana, New York, and Pennsylvania. This chapter provides a detailed examination of the constitutional text and case law in each of these states, and analyzes the similarities and differences among them. This analysis shows the wide variety of ways in which even similar provisions have been interpreted and applied at the state level. It shows that while four of these states treat their right to a certain quality environment as judicially enforceable, two (Illinois and Massachusetts) do not. Among the states with a judicially enforceable right, Hawai’i and Montana have the most well developed bodies of case law. This analysis also shows similarities and differences in the ways that these constitutional provisions both guide and constrain state authority under statutes and regulations. Perhaps the most basic issue is whether environmental rights should have actual parity with other constitutionally protected rights. These states have answered that question in varying ways

A Lack of Uniformity, Compounded, in Immigration Law

The Administrative Procedure Act is known for bringing standardization to federal agency behavior. The APA’s framework for adjudication, however, is lax and incomplete. It provides standards, but only meaningfully for formal adjudication, and Congress rarely requires agencies to follow the APA’s formal adjudication procedures. The APA, therefore, expressly allows for nonuniform adjudication in that it requires little of the informal adjudication that makes up the lion’s share of agency adjudication.This lack of uniformity in adjudication is prominent in immigration law. When federal agencies adjudicate whether to remove (deport) an individual from the United States, those agencies act pursuant to the Immigration and Nationality Act (INA) and not the APA. The INA establishes removal adjudication before an immigration judge. The lack of uniformity is compounded in immigration law, however, because most removals are achieved not through the INA’s immigration judge procedures but rather through various diversions from immigration court. These diversions provide fewer procedural protections and deviate from the supposed standard of a hearing before an immigration judge. In practice, there are no centralized, uniform procedures for removal adjudication. The INA theoretically provides a substitute North Star in place of the APA, but in practice the INA’s immigration court procedures only apply to a minority of cases.This phenomenon in immigration law raises questions about the strength of the APA and the value of uniformity in administrative law. If the APA’s aim was to improve adjudication, it has failed in immigration law. The removal adjudication system is extremely dysfunctional. Removal adjudication does not have the constitutional-like, uniform standards it desperately needs

Evolution of U.S. Climate Law and Policy

This paper provides an overview of the development of U.S. government law and policy concerning climate change. It is from Global Climate Change and U.S. Law, Third Edition (Michael B Gerrard, Jody Freeman, and Michael Burger eds. 2023). U.S. government efforts to address climate change can be grouped into five categories: (1) measures promoting federal climate change research, which provide the foundation for later developments; (2) environmental, energy, and natural resource laws; (3) other laws and policies, including those involving administrative practice, financial regulation, procurement and property management, technological innovation, and economic development; (4) the U.S. role in international agreements concerning climate change; and (5) new congressional efforts to pass comprehensive climate change legislation to reduce greenhouse gases, including the Inflation Reduction Act and the infrastructure Investment and Jobs Act . This paper focuses on key developments at the national level, particularly those intended to reduce greenhouse gas emissions

The Role of Lawyers, Bar Associations, and Law Societies in Combatting Climate Change

Lawyers and bar associations have a critical role to play in activating decarbonization and adaptation, and creating a more climate-conscious legal practice. The American Bar Association (ABA) has been working with the International Bar Association (IBA), the Brazilian Bar Association (OAB), and the Law Society of England and Wales (LSEW) over the past two years to discuss the role of lawyers in combatting climate change and to share best practices. The authors of this article represented these organizations in this work. This work includes joint programming at the 27th annual meeting of the Conference of the Parties to the U.N. Climate Change Convention (COP 27) in Sharm el-Sheikh, Egypt in November 2022, and at COP 28 in Dubai, United Arab Emirates, in December 2023. This article explains the need for climate-conscious law practice, and describes what bar associations and law societies are already doing and plan to do to foster more climate-conscious law practice

Judicial Remedies for Climate Disruption

This paper focuses on climate change cases that seek science-based remedies specifically related to climate mitigation (i.e., actions to reduce greenhouse gas emissions or draw down atmospheric carbon), and climate-change adaptation (i.e., actions to reduce the negative impacts of climate disruption on human and natural communities). It focuses on the forms and terms of relief sought by plaintiffs or petitioners.This paper provides an overview of remedies most commonly sought in climate change litigation, and a few that are less commonly sought. They are: 1) injunctive relief, 2) writ of mandamus, 3) declaratory relief, 4) remand, 5) vacatur, 6) damages, 7) civil penalties, 8) accounting, and 9) award of costs and attorney fees. We focus on U.S. cases, both federal and state, with some references to key decisions rendered in other countries for comparative purposes. We conclude that litigants and courts are capable of crafting remedies to address GHG emissions and climate change adaptation without getting bogged down in judicial management and enforcement issues

Good Intentions: Administrative Fiat and the General Welfare Exclusion

Since its introduction in 1913, the federal income tax has viewed income expansively, subjecting virtually all types of enrichment as gross income unless Congress explicitly exempted the income from taxation. But in the income tax’s second decade, the Bureau of Internal Revenue created an exception to the broad reach, an exception not grounded in any type of Congressional enactment. The Bureau’s practice of excluding certain benefits began innocuously in the late 1930s by excluding certain social security benefits from gross income. Over the decades, the IRS has used what it now refers to as the “general welfare exclusion” to exclude from gross income everything from subsistence benefits to payments made to preserve historic buildings. Confronted with difficult questions surrounding poverty and ability to pay, the general welfare exclusion has provided a way for the IRS to resolve complex and unanticipated questions about whether certain government welfare benefits constitute gross income.The general welfare exclusion, however, relies upon an enigmatic foundation of administrative rulings and decisions completely unhooked from any statutory authority or direction. While this administratively-created general welfare exclusion is broad and affects tens of millions of taxpayers, it nonetheless has been largely overlooked by taxpayers, tax scholars, and even legislators.This Article does three things. First, it comprehensively traces the development and evolution of the general welfare exclusion. Second, it highlights the problems created by the ad hoc nature and lack of tether to any legislative authority. Third, it provides a path by which the general welfare exclusion can continue to benefit low-income taxpayers while reducing the complexity and overreach of the IRS

The Lawyer\u27s Duty of Competence in a Climate-Imperiled World

The United States has more than 1.3 million practicing lawyers. Under Model Rule 1.1 of the ABA Model Rules of Professional Conduct and every state’s rules of conduct, each of these lawyers owes clients competent representation. Under the rule, “[c]ompetent representation requires the knowledge, skill, thoroughness and preparation reasonably necessary for the services.” While law and rules will undoubtedly change in response to the climate crisis, the duty of competence does not await such change or legal reform. The ubiquitous nature of the duty of competence means it is applicable to each lawyer now and will continue to evolve as the client’s needs and the perils in the real world change.The Article first examines the concept of competence for lawyers and other professionals and provides examples of how professional competence evolves under changing circumstances. It explores the mandate and structure of Model Rule 1.1 and identifies the related issue of professional malpractice. Then it applies the concept of competence to the legal professional’s role as new facts and conditions concerning climate change emerge. It also describes guidance on these responsibilities issued by the Law Society of England and Wales in early 2023. The Article next describes the benefits of systems leadership skills and capacities as a means to effectively practice law as standards of competence evolve. We are not arguing that leadership is included in the duty of competence. But the increasing pace of the climate crisis, and the increasingly sophisticated tools and practices that lawyers now have to address the crisis, expand what lawyers should reasonably do for clients. Finally, the Article identifies principles for climate-competent lawyering