Climate Change and the Challenge to Liberalism

In this editorial, we consider the ways in which liberal constitutionalism is challenged by and presents challenges to the climate crisis facing the world. Over recent decades, efforts to mitigate the climate crisis have generated a new set of norms for states and non-state actors, including regulatory norms (emission standards, carbon regulations), organising principles (common but differentiated responsibility) and fundamental norms (climate justice, intergenerational rights, human rights). However, like all norms, these remain contested. Particularly in light of their global reach, their specific behavioural implications and interpretations and the related obligations to act remain debatable and the overwhelming institutionalization of the neoliberal market economy makes clear and effective responses to climate change virtually impossible within liberal societies

The Supreme Court\u27s Fragile Copyright Law

For a generation, copyright scholars have taken it as a given that copyright law is destined to be disrupted by technological change. The basic problem, they have explained, is that it is impossible for Congress to anticipate the ways that new technologies will affect the creation, distribution, adaptation, and consumption of creative work. While excusing Congress and the courts for copyright law\u27s uncertainties, this view also leads to a kind of resignation. Unless we are to halt the march of technological progress, we must accept the unpredictability of copyright law as an inexorable fact of life. This Article complicates the conventional account by identifying an independent cause of copyright uncertainty, one that is rooted not in technological change but in the judicial process itself. Copyright law is vulnerable to disruption due to an unappreciated interaction between the certiorari- and merits-stage practices of the Supreme Court. For a century, the choice to hear copyright cases has rested in the Court\u27s discretion, and it has typically used that discretion to avoid the field. Because intervention by the Court is infrequent and unpredictable, participants in the copyright system have no choice but to look to circuit law. Indeed, some of the most important precedents for copyright industries today are not precedents of the Supreme Court but of the circuit courts of appeals. But occasionally the Supreme Court decides to hear a copyright case. And when it does, the circuit law forming the bedrock of our copyright system suddenly becomes vulnerable. Although the Court has, at times, deferred to lower court decisions in other areas of law, it has not done so in any contemporary copyright case. Repeatedly, the Court decides copyright cases without deference to lower court decisions, even decade-old decisions that have been widely accepted by the relevant industry and engendered significant reliance interests. Identifying this mechanism reveals the prevailing technologyfocused account of copyright disruption to be incomplete. A surprisingly small share (less than fifteen percent) of recent Supreme Court copyright cases involve any post-enactment technological developments. But rather than discrediting the conventional view, this complication suggests that copyright uncertainty may be more pervasive than previously recognized. To the extent technological developments are raising new questions of copyright law, the Supreme Court-and hence, the judicial process-is not providing many final answers

Avoiding Scandals through Tax Rulings Transparency

In 2014, the International Consortium of Investigative Journalists broke the LuxLeaks scandal, revealing numerous tax rulings that the press termed sweetheart deals granted to multinational companies. Many countries offer tax rulings because they provide certainty to taxpayers and the government on the tax consequences of a planned transaction. Yet, secrecy that is followed by leaks and criticism is a recurring aspect of these rulings, both in the United States and Europe. LuxLeaks, which revealed secret rulings from the small European country of Luxembourg, was international headline news. It helped trigger widespread reforms. Tax authorities, including those of European countries and the United States, now automatically share information about cross-border advance rulings with other countries\u27tax authorities. But Luxembourg\u27s tax rulings otherwise remain confidential. The United States treats a type of tax ruling, the Advance Pricing Agreement (APA), similarly: it exchanges information about APAs with other countries but does not otherwise disclose them. How transparent should tax rulings be? Secret rulings protect taxpayer confidentiality but also impose costs on various stakeholders. This Article (1) draws on the repeated scandals involving tax rulings to develop an original typology of these costs; (2) catalogues the levels of possible rulings disclosure, connecting each level with the costs it would address; and (3) examines potential arguments against rulings transparency. The Article concludes that, despite government resistance, best practices call for public disclosure of anonymized tax rulings-both letter rulings and APAs-heavily redacted, if necessary

Direct Listings and the Weakening of Investor Protections

In 2018, the New York Stock Exchange (NYSE) amended its rules to allow a company to directly list on the Big Board without engaging in an initial public offering (IPO). This process-called a direct listingallowed a company to list its stock faster and cheaper, and, at least theoretically, at a more accurate price when compared to the traditional IPO. However, this first version of the NYSE\u27s direct listing rule only allowed the company to list, not raise capital. This limited its usefulness to companies. In 2020, the NYSE again amended its rules, this time to allow a company to list and raise capital. Commentators called this new-andimproved direct listing a game changer because it did away with any shortcoming (i.e., inability to raise capital) associated with the prior 2018 direct listing rule. In short, the direct listing could overtake the IPO in coming years. The primary claim of this Article is that when the SEC approved direct listings (the SEC must approve all rule changes proposed by the NYSE), it improperly put the advantages to companies before investor protection. While the SEC should give significant weight to a proposed rule change\u27s advantages to companies, it should not use such weighing to countenance the weakening of core investor protections. Yet, by approving direct listings in 2018 and approving the broader use of direct listings in 2020, the SEC did countenance the weakening of core investor protections. First, direct listings are underwriter-less. There is no traditional underwriter to serve as a gatekeeper to prevent insiders from foisting troubled companies on the public at inflated valuations. Second, if investors are harmed, there are fewer remedies available. One of the primary remedies for harmed investors-Section 11 of the Securities Act-is largely unworkable in the context of a direct listing. The repercussions of the SEC\u27s approval of direct listings are already beginning to show. Pirani v. Slack involves a Section 11 action brought by investors who purchased shares in Slack Technologies Inc.\u27s direct listing. The Northern District of California found that the investors could pursue their claim despite being unable to trace their shares to the direct listing (a holding contrary to IPO precedent), and the Ninth Circuit affirmed the holding. However, Slack has announced it is going to petition the Supreme Court for certiorari. Further, with the number of direct listings growing exponentially (one in 2018, one in 2019, two in 2020, and four in 2021), more such cases are undoubtedly on the way. Important Note to the Reader: This Article contains a postscript to address two significant events that occurred in December 2022, just prior to publication: the New York Stock Exchange further amended its direct listing rules to require underwriters in some circumstances, and the Supreme Court agreed to hear Pirani v. Slack

Previvors

Individuals who are not yet sick, but who have a genetic predisposition to disease, often identify as previvors\u27 a combination of the terms predisposition and survivor. The previvor experience challenges many of the traditional expectations related to the provision of medical care and individual decision making. This article is the first to define the term \u27`previvor for the legal literature and the first to examine the role of law in previvor decision making. In essence, this project uses previvorship as a case study to demonstrate how the practice of medicine and medical decision making is evolving to render current law and policy increasingly inapplicable to modern medical practice. It concludes that the legal doctrine of informed consent is inappropriate to ensure adequate medical decision making, as exemplified by the previvor experience. The doctrine\u27s overemphasis on risk-based disclosures and its failure to address medical uncertainty is representative of the hazards of relying on the biomedical model of disease. Rather, we should begin to envision a legal doctrine that supports a robust shared decision-making approach to truly address individual preferences and values, the increasing complexity of risk/benefit assessment, and inherent (and sometimes irreducible) uncertainty