Completing ICWA’s History

When the Supreme Court, in Brackeen v. Haaland, upheld the Indian Child Welfare Act (ICWA) — federal legislation making it harder for child family regulation (a.k.a. child protection) agencies to separate Indigenous children from their parents — it centered Congress’s effort to remedy a long history of unwarranted separations of Indigenous families

Trade Integration

Accounts concerning the world trading system usually start the debate from the negotiation of the GATT. Trade integration before the First World War, though, had been quite remarkable, and the study of this era enriches our understanding of modern institutions in at least two ways. First, a number of GATT provisions had already been shaped during discussions following the advent of the League of Nations. Second, trade integration before the First World War did not manage to put a brake on belligerent behaviour, putting to rest the old Montesquieuan idea of doux commerce. Recent developments (like the invasion of Ukraine by Russia) can be analysed in this context, so that the world trading community can better grasp the limits of trade integration, and its impact on international relations

Existential Threats and Deterrence: Japan’s Legal Pathway to Enhanced Collective Security in Asia

With the Japanese Cabinet’s decision in December 2022 to comprehensively upgrade Japan’s security posture, and its rapid build-up of its defense capabilities, Japan’s role in Asia’s security architecture has been undergoing a fundamental shift. This article places Japan’s 2015 Peace and Security Legislation in the context of the U.N. collective security system and argues that its most significant achievement has been to expand Japan’s power to engage more proactively in the Asian collective security order. To date, commentators have focused on the legislation’s role in expanding the Japanese constitution’s limitations on the use of force to permit collective self-defense. This article argues that the legislation’s true significance lies in Japan’s strengthened deterrence capabilities resulting from an evolution away from its narrow focus on survival threats as a justification for permissible uses of force (a subject of constitutional interpretation), to broader legal justifications for the use of arms to counter lower order threats (a subject of legislative action). These enhanced capabilities have permitted Japan to undertake initiatives to build a new security architecture in Asia based on a significantly strengthened U.S. alliance and supplemental “minilateral” groupings. However, as deterrence activities grow, the line between “deterrence” and “survival” may start to blur, potentially taking the debates about permitted uses of force in new directions. The separate histories of the U.S. and Japan’s engagement with collective security suggest the directions in which these debates may lead

Sabin Center for Climate Change Law Annual Report 2024-2025

This 2024-2025 annual report highlights the Sabin Center’s breadth and impact across our program areas, including climate litigation, carbon management and negative emissions technologies, US climate policy, energy transition, climate law and finance

Most-Favored-Nation\u27s False Promises

Most-favoured-nation (MFN) protection seems decidedly straightforward both in meaning and operation, certainly as compared to other investment protections, such as fair and equitable treatment, which are plagued with indeterminacy. But the clarity of meaning and ease of application of MFN clauses are largely illusory. An examination of arbitral case law reveals seriously underestimated uncertainties surrounding the doctrine’s scope and workings. But the problems with MFN run far deeper. MFN may have the virtue of enhancing the level of protection of foreign investments. But States do not only extend benefits; they also withhold them. MFN disrespects the balance that States sought to achieve in the agreements they conclude. Particularly deceptive is MFN’s reputed capacity to reduce discrimination among foreign investors. MFN does not meaningfully reduce discrimination; indeed it exacerbates the problem. Especially illusory is the notion that MFN necessarily conduces to a multilateralization of investment protection. MFN even falls short in light of investment treaties’ core purposes. There may or not be convincing evidence that the availability of investment arbitration significantly induces foreign investment. But it cannot seriously be maintained that the level of foreign investment in a given State turns on MFN’s presence in, or absence from, an investment treaty

Annual Review of SEQRA Cases and Developments

The New York State Environmental Quality Review Act (SEQRA) turns 50 this year. The statute has changed only a little in the last half century, but it continues to be a font of litigation. The courts decided 43 cases under SEQRA in 2024. Implementation of SEQRA is also raising policy issues. The legislature is considering whether to amend SEQRA to speed up affordable housing projects, and the State Department of Environmental Conservation (DEC) is drafting regulations concerning the role SEQRA should play in advancing environmental justice. A constant theme is the tension between thoroughly studying important project impacts and involving affected communities, on the one hand, and moving forward with essential construction on the other hand. The central requirement of SEQRA is the preparation of an environmental impact statement (EIS) for discretionary state or local actions that may have a significant effect on the environment

Political Threads in Legal Tapestry: A Computational Analysis of Executive Branch Legal Interpretation, 1934–2022

How does the push and pull between law and politics shape the work of executive branch lawyers charged with providing “neutral” interpretations of the law? To shed light on this longstanding question, this Article undertakes the first large-scale computational analysis of legal interpretation in the executive branch of the United States federal government. Using a new dataset comprised of the texts of 12,879 pages of opinions issued by the Office of Legal Counsel (OLC) in the Department of Justice (DOJ), I use machine learning methods to explore markers of partisanship and ideology in these high-profile executive branch decisions. Several important findings emerge from this analysis. Broadly, I detect a significant partisan gap in the language used by the OLC. Yet this gap appears to have experienced limited growth in recent years, suggesting some degree of disconnect between the OLC and the broader, increasingly polarized political environment. Focusing on more fine-grained distinctions in the use of specific words and phrases, I find that Democrats and Republicans have differed along a number of salient dimensions, including the types of legal arguments invoked, substantive policy-related language, and institutional issues involving the separation of powers. One of the sharpest distinctions relates to executive power, with Republicans being more likely to adopt language associated with expansive presidential authority. I also find evidence that Republicans have more closely associated executive power with various markers of authoritarianism, such as language related to violence, the armed forces, and nationalism. But neither party appears to have consistently associated executive power with markers of democracy more than the other, complicating this picture. These findings have important implications for law and politics. To start, the existence of significant partisan differences in the OLC’s language use casts doubt on the prospect that high-ranking executive branch lawyers will act as “neutral expositors” when rendering legal opinions. At the same time, the apparent disconnect from broader trends in polarization arguably offers some sliver of hope for those who would prefer neutrality. Another issue that has attracted both scholarly and popular attention relates to the role of executive branch lawyers in safeguarding against — or alternatively facilitating — democratic backsliding. My results highlight the risks of relying on executive branch lawyers to uphold constitutional guardrails against presidential overreach, especially amidst attempts by certain political actors to increase politicization within the DOJ. Such concerns underscore the potential importance of other institutions in preserving democratic norms

Caste Formalism: The Law and Politics of Equality in India

In modern constitutional democracies, achieving equality has long been a challenge. In recent years, theorists have focused on understanding the meaning of discrimination and determining when and how discrimination becomes problematic. One critical issue that has long animated discussions on both the general guarantee of equality and the specific goals of anti-discrimination law is the relationship between individuals and groups. If a constitutional order aims to take equality seriously, how should it address the experiences of specific groups historically subjected to discrimination? Indeed, questions of equality and discrimination often converge around the issue of affirmative action, sometimes at the expense of a deeper understanding of discrimination itself. This Article studies the evolution of reservations in India. It argues that the reservations scheme has, over time, come to embody a distinct kind of formalism, namely caste formalism. To understand the emergence and implications of caste formalism requires attending to the development of legal doctrine, the forms of sociological change and political mobilization, and the nature of identity and citizenship

Liability Considerations for Marine Carbon Dioxide Removal Projects in U.S. Waters

Scientists have identified a number of land- and ocean-based carbon dioxide removal (“CDR”) approaches. Ocean-based approaches, also known as marine CDR, hold great potential for uptake and sequestration of carbon dioxide. However, controlled field trials in the ocean are needed to better understand the efficacy and impacts of several marine CDR approaches. Legal considerations will have a major bearing on whether, when, where, and how such field research goes forward. Previous studies have analyzed the potential international and domestic legal framework applicable to marine CDR research and subsequent deployment (if that is ultimately deemed appropriate). However, relatively little research has analyzed the potential for this legal framework to impose liability on marine CDR project proponents (e.g., for environmental harms resulting from their activities). This report begins to fill that gap with regard to projects in U.S. ocean waters by analyzing potential liability for marine CDR project proponents under U.S. federal statute, and federal and state tort law. Application of statutory and tort liability to marine CDR project proponents is complex and uncertain. Further, the existing liability frameworks seek to restrict environmentally harmful activities, but do not promote potential environmental benefits. A different liability framework may better be able to balance these competing concerns. This paper concludes by analyzing three existing environmental liability regimes used in other sectors that may serve as models for a new liability regime to govern marine CDR

Distinguishing Among Climate Change-Related Risks

Understanding the diverse types of climate change-related risks is crucial for developing effective strategies to address the global climate crisis. A holistic yet disaggregated approach allows for a comprehensive view of the challenges while enabling targeted responses from various stakeholders. This document outlines three main categories of climate-related risks: planetary, economic, and financial, detailing their relevance to various stakeholders, timeframes, and potential response strategies. This short brief aims to disentangle the complex nature of risk discussions for productive discourse and appropriate risk management approaches for different stakeholders. In practice, discussions related to assessing and responding to climate change risk have conflated categories of risk, confusing discussions and undermining the effectiveness of related strategies. We hope this brief can bring clarity and rigor to analyses of risk and support constructive discussion among policymakers, financial institutions, social sector actors, and the public. We plan to follow this short briefing with a longer report including more detailed analysis, integrating feedback to these initial ideas