Harms from Concentrated Industries: A Primer

Market concentration within sectors and across global value chains has increased in recent years, leading to new scholarship on the benefits and harms of concentrated industries. The macroeconomic effects of market concentration, and its effects on stakeholders like workers, consumers, and citizens, will significantly impact the achievement of the SDGs. Read CCSI\u27s primer on the Harms from Concentrated Industries here

How the International Investment Law Regime Undermines Access to Justice for Investment-Affected Stakeholders

For over a decade now, the international investment law regime, which includes investment treaties and their central pillar, the investor-state dispute settlement (ISDS) mechanism, has been facing sustained calls for reform. These have largely centered on the concerns regarding the high costs of ISDS, the restrictions placed by the investment treaty regime on the right—or duty—of states to regulate in the public interest, and the questionable benefits arising from these treaties in the first place. Several states have taken proactive measures: some have revised investment treaty standards to better protect their regulatory powers; others have introduced new approaches to investment promotion, protection, and dispute settlement that more closely align with their sustainable development objectives; and some states have withdrawn from the investment treaty regime altogether. In addition, reforms to the regime are taking place at the multilateral level within the United Nations Commission on International Trade Law (UNCITRAL), the Organization for Economic Cooperation and Development (OECD), the World Trade Organization (WTO), and through other regional fora. Despite being the subject of extensive and prolonged public debate for several years, these reforms have continued to reinforce the binary structure of the regime. This structure restricts the focus of investment relations solely to investors and host states, disregarding the actual or potential impacts of investment projects, relations, disputes and awards on the rights and interests of other impacted stakeholders. In particular, large-scale, land-based investment projects involve a broad network of people and relations, and often intersect with local communities whose social identity, way of life, and livelihoods are intimately connected to the land and natural resources at stake. It is this category of investments, which result in the creation of a new “project” with a large land footprint, that is the topic of this paper. The consequences of these types of investments can be significant, as they often lead to land expropriations, negative human health consequences, water pollution, air contamination, deforestation, or shifts in migration patterns within the area, thereby impacting the rights and interests of people in these communities and the environment more broadly

Constitutional Clash: Labor, Capital, and Democracy

In the last few years, workers have engaged in organizing and strike activity at levels not seen in decades; state and local legislators have enacted innovative workplace and social welfare legislation; and the National Labor Relations Board has advanced ambitious new interpretations of its governing statute. Viewed collectively, these efforts — “labor’s” efforts for short — seek not only to redefine the contours of labor law. They also present an incipient challenge to our constitutional order. If realized, labor’s vision would extend democratic values, including freedom of speech and association, into the putatively private domain of the workplace. It would also support the Constitution’s promise of free labor; guarantee social and economic rights to workers; expand who qualifies as an equal member of the demos; and forge a more democratic governance structure, with less power for the judiciary and more democratic control over the political economy. The potential threat has not escaped the notice of capital. Business is responding with reinvigorated arguments about the First Amendment, the Takings Clause, due process, equal protection, nondelegation, and the Dormant Commerce Clause, as well as appeals to common law concepts of managerial control and property rights. By examining labor’s efforts and business’s response, this Article shows that contemporary fights about labor are also inherently fights about constitutional law — about the rights to which citizens and residents are entitled, about governmental powers and structure, and ultimately about how we constitute ourselves as a nation. The Article also offers lessons for how to engage in nonjuriscentric constitutionalism; highlights the importance of advancing an affirmative constitutional agenda; and, from the range of labor’s efforts, outlines a coherent substantive alternative to both business’s constitution and the post-New Deal constitutional compromise that has, in many ways, failed to guarantee a democratic and egalitarian political economy

Billion-Dollar Exposure: Investor-State Dispute Settlement in Mozambique’s Fossil Fuel Sector

Alongside preparing for climate change, Africa should invest in the zero-carbon future, avoiding locking itself into the declining fossil fuel–based economy while taking advantage of the opportunities presented by decarbonization. However, investment treaties and investor–state dispute settlement (ISDS) hinder, rather than catalyze, the transition to climate-friendly investment opportunities. This report shows how Mozambique’s international investment agreements and publicly available oil, gas, and coal contracts allow foreign investors to bypass the national judicial system and bring multi-billion-dollar ISDS claims against Mozambique. Such claims can result in significant costs for the country, and they also have a chilling effect on new public-interest regulations in areas such as health, environment, community rights, or labor protections

Public Primacy in Corporate Law

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 the public

New York Environmental Legislation in 2023

In 2023, New York enacted laws to aid the state in achieving the renewable energy and greenhouse gas emissions reduction mandates of the 2019 Climate Leadership and Community Protection Act (CLCPA).The state also now has new laws to reduce exposure to lead in drinking water and paint; to ban natural gas furnaces and stoves in new buildings; to restrict neonicotinoid pesticides; and to encourage “nature-based solutions” for stabilizing tidal coastlines. These and other new and amended environmental and energy laws—as well as notable vetoes—are discussed in this article

Transaction-Specific Tax Reform in Three Steps: The Case of Constructive Ownership

Similar investments are often taxed differently, rendering our system less efficient and fair. In principle, fundamental reforms could solve this problem, but they face familiar obstacles. So instead of major surgery, Congress usually responds with a Band-Aid, denying favorable treatment to some transactions, while preserving it for others. These loophole-plugging rules have become a staple of tax reform in recent years. But unfortunately, they often are ineffective or even counterproductive. How can Congress do better? As a case study, we analyze Section 1260, which targets a tax-advantaged way to invest in hedge funds. This analysis is especially timely because a multi-billion dollar litigation is pending about this rule. This Article proposes a three-step approach. First, when faced with a new type of tax planning, policymakers should decide whether a response is really necessary. How harmful is the transaction? How feasible is it to target this transaction without also burdening “good” transactions, which don’t involve the same abuse? This first phase determines what we call “the normative presumption” about the transaction. Second, Congress should define which transactions are potentially problematic. An “initial filter” should exempt transactions that clearly don’t pose the relevant concern. Third, once a transaction is deemed to be potentially problematic, a sophisticated test is needed to check whether it actually is. Admittedly, a sophisticated test is costly to administer. This is why initial filters are needed to limit how often it is used. Along with proposing this three-part framework, this Article offers a novel critique of a sophisticated test the government has begun using: a “delta” test, which measures how closely investments track each other. Although delta is often considered the gold standard, we show how easy it is to manipulate. The trick is to add contingencies (e.g., so the investment terminates when the price reaches a specified level). To head off this gaming, we recommend an alternative test that focuses on value instead of on changes in value–and, more generally, on enduring features instead of temporary quirks

An International Law Framework for Climate-Aligned Investment Governance

The January 2024 CCSI Working Paper, An International Law Framework for Climate-Aligned Investment Governance, outlines a framework — and invites and hopes to inspire further thinking, research, and discussion — on how to bridge gaps and build cohesion among various areas of international law relevant to investment in climate mitigation and adaptation. The working paper identifies areas of international law that are or could be relevant to investment governance, highlights points of inconsistency, and proposes a framework to reform and integrate international law with the objective of promoting and facilitating climate investment flows and achieving climate-aligned regulation of investment

UNCITRAL Working Group III: Contribution on the ‘Right to Regulate’ Provision

UNCITRAL Working Group III: Contribution on the ‘Right to Regulate’ Provision is a joint submission to the Secretariat\u27s request for comments on the procedural and cross-cutting issues. The commentary focuses on the states\u27 right-to-regulate provision, proposed in the Draft provisions on procedural and cross-cutting issues, and proposes additional policy options aimed at preserving the states\u27 sovereign right (and duty) to regulate

The Legal Case for Equity in Local Climate Action Planning

Over the last half decade, local climate action plans have regularly come to incorporate considerations of racial and socioeconomic equity, recognizing the ways in which low-income communities and communities of color experience earlier and worse consequences from global warming, and these communities are also at risk of being harmed by policies meant to address climate change. Until now, however, the discourse on equity in climate action planning has largely pertained to policy; it acknowledges the disproportionate harm that certain communities experience as a result of climate change and policies to address climate change, and suggests policy tools that can address these disparities. Missing is a discussion of why local governments are compelled or strongly encouraged by law to develop climate plans that aim to address racial and socioeconomic inequity alongside rising GHG emissions. This Article seeks to fill in the missing legal context for why equitable climate action planning is strongly encouraged by three aspects of federal law: the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution, Title VI of the Civil Rights Act of 1964, and recent federal law developments like the Inflation Reduction Act and Justice40. While none of these mandate that local governments consider equity in their climate action planning, they do provide a compelling legal argument for local climate policy that is equitable and racially just. The Article explores all three areas of federal law and suggests ways in which they might interplay with equitable local climate action planning. In addition to delineating new applications for these areas of federal law, the research seeks to provide a legal rationale for local climate policy that is just and equitable that can support local government efforts when their climate action plans face political, fiscal, legal, and other forms of challenge