The Common Law of Constitutional Conventions

Professor Jill Lepore’s Jorde Symposium lecture paints a rich portrait of state constitutional conventions as engines of democratization during the 1800s and issues a dire warning about the United States’ ongoing amendment drought. Citing their unfamiliarity, however, Lepore declines to consider federal constitutional conventions as a possible corrective. In this response Essay, I argue: first, that Lepore’s marginalization of Article V’s convention mechanism is in tension with her own historical and normative account; second, that while Lepore’s wariness of conventions is entirely understandable given the state of our politics — and entirely commonplace among progressives — it carries significant risks of its own; and third, that constitutional conventions are not as unfamiliar as they might seem and that our long experience with this institution at the state level supplies guidance as to how a federal convention might be made less frightening and more legitimate. If we wish to revive the Framers’ “philosophy of amendment” and reclaim popular control over fundamental law, we must figure out how to operationalize that philosophy through credible procedures. The common law of constitutional conventions is a vital resource for this task

Regulation of Ocean Alkalinity Enhancement in Washington State

This paper focuses on one commonly-discussed ocean carbon dioxide removal approach, ocean alkalinity enhancement (“OAE”), which involves adding alkaline substances to ocean waters in order to increase their ability to uptake carbon dioxide from the atmosphere. OAE also has the potential to mitigate ocean acidification, which has been worsening globally due to climate change, and has threatened marine life and industries in places like Washington State. There is significant interest in pursuing OAE off the coast of Washington state. This paper examines the legal framework for OAE projects in Washington State. As we explain, OAE projects conducted in near-shore areas off Washington’s coast may be regulated under various environmental and other laws adopted at the local, tribal, state, and federal levels

New York Environmental Legislation in 2024

In 2024, New York State enacted several laws aimed either at dealing with the adverse impacts of climate change such as extreme heat and increasingl severe and frequent storms or at helping to mitigate greenhouse gas emissions to avoid or minimize the adverse impacts. The final bill signed by Governor Kathy Hochul in 2024 was the most high-profile of these laws — the Climate Change Superfund Act, which will require fossil fuel companies to pay for adaptation measures. Other new laws last year related to extreme heat in schools and prisons, food waste, expanded polystyrene containers, community gardens, and native plant seeds. These and other new and amended environmental and energy laws — as well as notable vetoes — are discussed in this article

BU S4E4

Photo of Mary Jo White, litigation partner and senior chair at Debevoise & Plimpton.https://scholarship.law.columbia.edu/beyond_unprecedented_podcast/1045/thumbnail.jp

Climate Change in the Courts: A 2024 Retrospective

Drawing from the jurisdictions covered in the Sabin Center\u27s United States (U.S.) and Global Climate Litigation databases, this report offers insights into key developments, emerging themes, evolving legal strategies, and the pulse of climate litigation in 2024. The report identifies eight major thematic areas of climate litigation, namely (i) climate change in international and regional courts and tribunals, (ii) constitutional and human rights cases, (iii) GHG emissions in EIAs, (iv) factoring climate impacts and obligations into government decision-making, (v) non-compliance with climate commitments, (vi) climate displacement, (vii) greenwashing and climate-washing cases, and (viii) nuisance and other claims against major emitters

The Need to Explore the Potential of Marine CDR with a One-Earth Strategy: A Guide for Policy-makers

Rapid, deep and sustained reductions in carbon dioxide (CO₂) emissions are essential to achieve the goals of the Paris Climate Agreement of keeping the long-term global average surface temperature increase well below 2°C above pre-industrial levels and pursue efforts to limit it to 1.5°C . In addition, the 2021 IPCC Report explains that carbon dioxide removal (CDR) will be needed to offset residual CO₂ emissions from activities and sectors that are difficult to decarbonize by 2050. The objective of CDR is removal of atmospheric CO2 from residual emissions and its durable storage in reservoirs, which is an additional critical element towards achieving carbon neutrality by 2050 and thereby ensure less than 2°C global warming. The annual estimates of CDR required in 2030 and by 2050 are 3.6 Gt and 9.4 Gt, respectively, leaving a CDR gap of 1 Gt by 2030 and 6.8 Gt by 2050 relative to the expected CDR from conventional land-based methods of 2.6 Gt per year by 2030. How much of this gap can be filled sustainably by land-based CDR is unknown. Novel CDR methods include direct air carbon capture and storage (DACCS), biochar, and various marine approaches. Although these novel methods currently account for \u3c0.1% of CDR worldwide, many are being tested through model simulations and small-scale pilot projects. The ocean plays a critical role in regulating Earth’s climate, and marine CDR (mCDR) offers substantial untapped opportunities that have so far been overlooked. Modeling indicates that several mCDR methods could scale to a billion tonnes annually, but their potential ecological side-effects are poorly known. Exploration of the potential of safe, durable and verifiable mCDR and its scalability within sustainability limits is urgently required, even though the process of testing, refining, verifying, and scaling mCDR will take at least a decade. Time is short, and policymakers must therefore prioritize an ambitious timeline to deliver safe, sustainable, durable, and verifiable mCDR solutions that can potentially scale in parallel with land-based efforts, together with a regulatory framework for deployment

Law for the Rich

With top incomes and wealth reaching historic highs, scholars and politicians have proposed new taxes and novel legal rules aimed at reversing the emergence of the new Gilded Age. Yet while new taxes target the rich directly by imposing greater burdens only on those with incomes or wealth above multi-million-dollar thresholds, none of the proposed legal reforms do anything of the sort. There appears to be no interest in changing property law, corporate law, antitrust law, or labor law, among others, to have special, more burdensome rules applicable only to the rich. This Article asks: Why not? Why shy away from a separate law for the rich if one supports both progressive taxation and distributionally informed legal rules in general? This puzzle, it turns out, is surprisingly difficult to solve. Neither political philosophy nor economic analysis nor practical design considerations offer a plausible answer. Looking for clues outside of legal theory suggests that a separate law for the rich would be widely viewed as unfair because it imposes burdens that are obvious, highly concentrated, and possibly contrary to one of the fundamental elements of law itself. Redistribution through legal rules, it turns out, is limited in a way that redistribution through the tax law is not. Law for the rich is not a solution to the emergence of the new Gilded Age. Reformers must look for other ways of achieving a more prosperous and more just society

The Role of Marine CO2 Removal in Combating Climate Change

Combating climate change requires not only rapid reduction of greenhouse gas emissions, but also removal of significant amounts of carbon dioxide (CO2) from the atmosphere. CO2 removal (CDR) comes in many different forms, but climate scientists and policymakers are focusing on the potentially important role of large-scale use of emerging ocean-based techniques, often referred to as marine CDR (mCDR). In the United States, mCDR in domestic waters is governed by a patchwork of laws and regulations. There are also major uncertainties concerning regulation of mCDR in the open ocean, where international treaty regimes have struggled to develop coherent rules. On September 30, 2024, the Environmental Law Institute hosted a panel of experts that explored the issues, challenges, and opportunities for large-scale mCDR deployment. Below, we present a transcript of that discussion, which has been edited for style, clarity, and space considerations

Beyond Unprecedented S4 Ep4: Trump 2.0: Anticipating the Future of the SEC

Former chair of the U.S. Securities and Exchange Commission (SEC) and current Debevoise & Plimpton partner Mary Jo White ’74 discusses what to expect from the SEC in the second Trump administration — including the changes that a more conservative commission might make to existing rules and enforcement policies and the relationship between the SEC and U.S. Department of Justice.https://scholarship.law.columbia.edu/beyond_unprecedented_4/1004/thumbnail.jp

The Will to Chaos and Disorder: The Behemoth as a Model of Political Economy

The history of political economy is tormented by beasts. The most famous is the Leviathan, the giant serpentine monster that figures in Hobbes’s masterpiece of modern political theory. Robert Fredona and Sophus Reinert spotlight another sea monster, the Kraken, that giant octopus or squid with a particular morphology (i.e., its tentacles) that so fittingly describes the grip of multinational corporations, stateless financial capital, social media, and tech giants today. But there are still other monsters in the bestiary of political economy. In this essay, I highlight the Behemoth, a land monster that captures another critical dimension of political economy: the willful and intentional deployment of chaos and disorder as a way of governing. Franz Neumann, political and legal theorist and lawyer, Columbia University professor, and member of the Frankfurt School in exile, placed the Behemoth at the heart — and in the title — of his analysis of Germany’s political economy under the Nazi regime. Alongside the Leviathan surveillance state and the many tentacular grips of multinational, social media, and tech Krakens, the Behemoth remains a key model to better understand current forms of capitalism