“Green” is the New Black: Enforcing Consumer Protection Laws Against Greenwashing in the Fashion Industry

As climate change continues to relentlessly change landscapes, threaten harvests, and increase the frequency of natural disasters, legislators and regulators globally must expand upon their efforts to protect the environment and citizens from the harmful practices of corporations, some of the greatest contributors to climate change. One of the greatest perpetrators of harm to the environment is the fashion industry. The harm is further compounded by the rise of fast fashion companies. These companies utilize methods of rapid production and encourage overconsumption, resulting in a rampant storefront to landfill cycle. However, legal activists, politicians, the public, and some industry leaders have increasingly taken action to curtail the harmful effects of these fast fashion companies. To compete for consumer attention and to protect their images in the face of increased environmental activism, fast fashion companies have begun greenwashing their products and supply chain. Through greenwashing, companies misrepresent the sustainability of their products or services, allowing the consumer to believe they are making a more environmentally friendly purchase than they really are. This Comment outlines the current major approaches of the United States, United Kingdom, and France toward preventing greenwashing by fashion companies. This Comment looks at the successes of consumer protection laws and actions against companies accused of greenwashing to provide guidance for fashion companies and other countries that have yet to implement similar regulatory schemes. Additionally, while the United States, the United Kingdom, and France are regarded as three leaders in anti-greenwashing legislation, they each will benefit from more comprehensive and intelligible laws guiding enforcement efforts

The Worst Choice for School Choice: Tuition Tax Credits Are a Bad Idea and Direct Funding is Wiser

School choice is on the rise, and states use various mechanisms to implement it. One prevalent mechanism is also a uniquely problematic one: the tax credit. Tax credits are deficient at equitably distributing a benefit like school choice; they are costly, and they invite fraud. Instead of using tax credits, states opting for school choice programs should use direct funding. Direct funding will more efficiently achieve the goals of school choice because it can be regulated like any other government benefit, even if it ends up subsidizing religious private schools. Tax credits’ prevalence is not inexplicable, of course. It is based on a prior legal understanding that states were constitutionally restricted from directly funding religious schools. Historically, states that wanted to include religious private schools in their school choice programs therefore felt pushed to use tax credits as their only constitutionally viable option. However, the landscape has changed. The Supreme Court held in 2022 that direct funding of religious private schools is not only constitutionally permissible, but it is required if a state funds non-religious private schools and provides no neutral basis for excluding religious ones. The initial reason for tax credits’ popularity therefore no longer exists; both tax credits and direct funding alike are constitutionally acceptable. It is time, therefore, to revisit the merits of tax credits and ask whether, knowing what we know now, it is worth disposing of them in favor of direct funding. This Article answers that question with a resounding yes. Tax credits carry significant disadvantages—specifically, inequitable distribution and difficulties in regulation—that direct funding does not. Now that the law is clear, states choosing to sponsor school choice should discontinue their use of tax credits in favor of direct funding

Law in Books Versus Law in Action in the Landmark Shenzhen, China, Personal Bankruptcy Regime

The first personal bankruptcy regime in Mainland China celebrated its second anniversary on March 1, 2023. An empirical assessment of the law in action during these first two years reveals some troubling deviations from the early promises of the new law on the books. In the first year, a handful of judges were charged with an arduous in-person review process for over 1,000 applicants, and they accepted only twenty-five for case initiation. In the second year, initial case review was delegated to an administrative body—an important efficiency enhancement that tripled the number of opened cases. Nonetheless, most debtors continue to be dissuaded from applying at all, and hundreds of applications have been rejected, in part on the non-statutory grounds that the court is admitting only business-related cases. Moreover, the default gateway of liquidation-and-discharge has been successfully used only once, secretly relegated to “last resort” status. Debtors are effectively limited to proposing that creditors accept a payment plan offering full repayment of principal within five years, and creditors have rejected many such plans. While most admitted restructuring cases have led to confirmed plans, many of these “successes” are built on very shaky foundations that portend likely struggle and repeat default ahead. The new system, thus, seems to be operating in quite a skewed fashion: admitting only a very small fraction of applicants and offering relief on narrow and demanding grounds. This is a disappointing abandonment of the textual promise of broad, standardized relief consistent with international best practices. As national authorities in China (and elsewhere) consider adopting a country-wide personal bankruptcy law, Shenzhen’s experience illustrates the challenges of striking the right balance between relief and responsibility in personal insolvency regulation

Third-Party Bankruptcy Releases and the Separation of Powers: A Stern Look

In the last few years, bankruptcy scholars and professionals have criticized mass tort debtors’ use of chapter 11 bankruptcy as a litigation forum. One such criticism concerns mass tort debtors’ use of third-party releases: provisions in chapter 11 reorganization plans that enjoin creditors’ claims against non-debtor third parties. If a bankruptcy court approves such releases, creditors lose claims against the released third parties, which often include the debtor’s directors, insurers, or employees. Third-party releases have troubled many. Critics and courts have said that third-party releases violate (1) the Bankruptcy Code, (2) bankruptcy policy, (3) the constitutional right to due process, and (4) the separation of powers. All four of these issues hold water, but the separation of powers especially warrants addressing because of its prophylactic nature—implemented correctly, the separation of powers mitigates the other three concerns. The separation of powers problem is that bankruptcy courts exceed their Article I authority by approving releases that alter only non-debtors’ legal rights, a job typically reserved for Article III courts. The Supreme Court guided bankruptcy courts on the separation of powers in the seminal case Stern v. Marshall. Yet bankruptcy courts still lack a uniform separation of powers approach for third-party releases. This Comment proposes a framework to help bankruptcy courts gauge the constitutionality of third-party releases. Bankruptcy courts should analyze each proposed release individually using the “public rights exception” from Stern, presuming the releases unconstitutional until the debtor proves otherwise. Doing so will protect constitutional sanctity, serve bankruptcy policy, and mitigate due process risks

The Rise of General Jurisdiction Over Out-of-State Enterprises in the United States

In June 2023, the U.S. Supreme Court continued its revision of personal jurisdiction law, in this case by refining, thereby perhaps expanding, the law of when a court may exercise general personal jurisdiction – that is, jurisdiction over all claims – over a non-resident person or an out-of-state enterprise. In Mallory v. Norfolk Southern Railway Co., it held in a 4+1:4 decision that, when a state requires a non-resident company to register to do business in the state and such registration constitutes consent to jurisdiction over all claims against it, such exercise is permitted. In reaching its conclusion, the Court applied a more than a century old (1917) precedent. The plurality of four Justices also compared the exercise of such jurisdiction to “tag jurisdiction” (general jurisdiction over persons present in the state at the time of service) and did not consider the Court’s much more recent cases on specific (claim-related) jurisdiction to be in contrast with (i.e., to overrule) the 1917 decision. The dissent disagreed and, in light of the majority’s new revision, considered specific jurisdiction now significantly deleted. Indeed, it does seem that the distinction between general and specific jurisdiction continues to become considerably blurred