Green Colonialism: Sidelined While on the Front Lines

The United Nations General Assembly recently unanimously adopted a resolution recognizing the “right to a clean, healthy and sustainable environment as a human right.” in July, 2022. ... The resolution was heralded by U.N. Environment Programme (UNEP) Executive Director Inger Andersen as a “victory for people and the planet,” and it was described as a catalyst for action by U.N. Special Rapporteur on Human Rights and the Environment David Boyd. ... Boyd went on to say that the resolution could encourage States “to enshrine the right to a healthy environment in . . . constitutions and regional treaties.”... This short essay examines this resolution as it relates to Indigenous peoples worldwide, but with a particular focus on Native Nations in the United States. Despite the landmark nature of the resolution’s recognition of the right to a healthy environment, significant questions remain about methods of implementation and of engaging Indigenous peoples, participation by Indigenous peoples in that process, and the possibility of competing interests between Indigenous peoples and environmental protection

COVID-19 Tort Reform

In 2020 and 2021, 44 states and Washington, D.C. passed laws that limited tort liability related to COVID-19. The most common reforms immunized health care providers from malpractice or similar liability. A second category is limited liability to individuals or businesses for exposing others to the novel coronavirus. And a third category protected manufacturers of supplies used to detect and prevent COVID- 19 from products liability suits. The goals of these reforms included protecting health care providers from uncertainty in providing care for a novel disease, limiting the macroeconomic consequences of the pandemic, and encouraging the distribution of critical supplies to avoid shortages. States providing immunity assumed that institutions and individuals alike would react to reforms, as theory predicts, by engaging in more of the immunized activities. In general, the literature supports the assumption that institutions, like hospitals or manufacturers of face masks and COVID-19 tests, change their behavior in response to tort reform. Yet there is little empirical evidence demonstrating how tort law affects risk-taking by individuals. The lack of evidence about the relationship between tort law and individual decision-making is of broad interest, as one of the primary goals of tort law is to incentivize efficient levels of risk-taking. This Article provides novel empirical evidence on the effects of COVID-19 tort reform on public health. The analysis yields three important results. First, it shows that medical liability reforms had counterproductive public health effects. States that immunized health care providers from tort suits arising out of COVID-19 care experienced 20% more COVID-19 cases and 5% more COVID-19 hospitalizations. Second, the results demonstrate that exposure reforms counterintuitively decreased COVID-19 cases by making it easier for businesses and other institutions to require customers to comply with public health guidance. Third, the results reveal that tort law had very little effect, if any, on the precautions individuals chose to avoid contracting or spreading the disease. The third result is broadly interesting, as it indicates that tort law will be a weak incentive to individuals whenever they are choosing a level of care that can protect themselves or others

The protection against unfair competition and passing off in ASEAN Member States: a review and commentary

This article offers a brief review of the protection against unfair competition in the Member States of the Association of South-East Asian Nations (ASEAN). More specifically, it highlights ASEAN’s different legal systems and how ASEAN Members, respectively, implement Article 10bis of the Paris Convention under national unfair competition or laws against passing off based on their respective legal system—Civil Law, Common Law and hybrid systems. Ultimately, this article notes that, despite these different legal systems, ASEAN Members share close similarities in their national implementation of Article 10bis of the Paris Convention. The article concludes that these similarities are not surprising considering the shared history of several ASEAN Members and the fact that all these countries (with the exception of Myanmar) are signatories to the major international IP agreements

Authoritarian Privacy

Privacy laws are traditionally associated with democracy. Yet autocracies increasingly have them. Why do governments that repress their citizens also protect their privacy? This Article answers this question through a study of China. China is a leading autocracy and the architect of a massive surveillance state. But China is also a major player in data protection, having enacted and enforced a number of laws on information privacy. To explain how this came to be, the Article first discusses several top-down objectives often said to motivate China’s privacy laws: advancing its digital economy, expanding its global influence, and protecting its national security. Although each has been a factor in China’s turn to privacy law, even together, they tell only a partial story. Central to China’s privacy turn is the party-state’s use of privacy law to shore up its legitimacy amid rampant digital abuse. China’s whiplashed transition into the digital age has given rise to significant vulnerabilities and dependencies for ordinary citizens. Through privacy law, China’s leaders have sought to interpose themselves as benevolent guardians of privacy rights against other intrusive actors—individuals, firms, and even state agencies and local governments. So framed, privacy law can enhance perceptions of state performance and potentially soften criticism of the center’s own intrusions. The party-state did not enact privacy law despite its surveillance state; it embraced privacy law to maintain it. This Article adds to our understanding of privacy law, complicates the relationship between privacy and democracy, and points toward a general theory of authoritarian privacy

Theorizing Constitutional Change in East Asia

How do constitutions change in response to social problems? This Article explores why constitutions in three East Asian countries, namely Japan, Indonesia, and China, changed rapidly during times of social crisis and then incrementally evolved during periods of stability. It looks for explanations in historical institutionalism, a novel theory developed to understand the factors that give rise to the creation, persistence, and change of political institutions, such as constitutions. Constitutional change in these East Asian countries is explored by examining constitutionally defined eminent domain powers that enable governments to compulsorily acquire land in the public interest. The Article aims to understand whether fundamental constitutional change only occurs through crisis or whether it can also take place gradually by layering new ideational components onto old programmatic ideas, repurposing them to new uses. Drawing on case studies about eminent domain in Japan, Indonesia and China, the Article concludes that although crisis can trigger fundamental change in any political system, incremental reforms are more likely to promote fundamental change where governments are accountable to the public through constitutional courts and/or democratic elections

Pricing, Decarbonization, and Green New Deals

This Article evaluates an emerging literature claiming that carbon pricing (emissions trading or carbon taxes) has not performed very well and therefore cannot be the basis for the sort of transformative change now required to address the climate crisis. This is an important claim, as carbon pricing has been viewed as being at the heart of global efforts to address one of our most important contemporary problems. We provide theoretical and empirical support for these critics’ claim that carbon pricing by itself cannot catalyze the technological transformation now required, and that other approaches have done and will likely do better. We also agree with critics that pricing approaches have suffered from insufficient ambition and effectiveness in routine emission reductions. But we do not think that the critics have shown that alternative approaches have and will perform better in those terms. We develop a framework for enhancing empirical evaluation of past programs, as we now have a wealth of experience with both carbon pricing and a variety of alternatives, but a dearth of econometric comparative studies of past performance. We also explore the normative implications of the critics’ claims. We argue that even if they are entirely right, we should welcome even insufficiently ambitious pollution taxes as likely to enhance other programs and raise revenue to support them. We point out, however, that the trading programs now common around the world may undermine rather than support more successful programs and suggest that regulators consider cap-without-trade (imposing mass-based caps on pollution sources without allowing the trading of obligations) as an alternative. We also discuss the possibility of overcoming the critics’ objections by improving carbon pricing programs

Kohlhaas v. State: Encouraging Democratic Reform Through Constitutional Flexibility

In the spirit of democracy reform, Alaska recently adopted a jungle primary and ranked choice voting electoral system for all state-wide elections. In Kohlhaas v. State, the Alaska Supreme Court upheld this reform against numerous state and federal constitutional challenges. While doing so, the court avoided rigid constitutional interpretations that would have frozen the electoral system in its current first-past-the-post state. Moreover, the court refused to credit the plaintiff\u27s speculation about the hypothetical malign effects of ranked-choice voting, placing the burden to produce hard evidence of their critiques on RCV\u27s opponents. Alaska can serve as a model for other states, as those states increasingly consider adopting electoral reforms of their own and must interpret similar state constitutional language

Global Product Liability for Dumb ‘Smart’ Home Devices

The number of smart homes globally has increased to 300 million, and the smart home market is expected to reach approximately $181.4 billion by 2025. These new developments, however, are accompanied by related security risks. The attack surface for smart home devices poses latent dangers because of inadequate security that enables cybercriminals to gain access to such devices. This Article proposes extending product liability to address security vulnerabilities in smart home devices. Part I examines the ubiquity of smart home devices. Part II sets forth the breadth of security vulnerabilities in connected devices, confirming the need to clarify that product liability applies to software and to create a global standard that reduces compliance costs for smart home device makers. Part III develops a detailed global standard for smart home device product liability, aligning U.S. product liability law with the proposed revision of the European Union’s Product Liability Directive 85/374/EEC