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Recent Print Edition:
Articles
Articles
Volume 110, Issue 5
Climate Liberalism and Decarbonization
Jonathan Adler
Existing climate policy goals require dramatic and rapid reductions in greenhouse gas (“GHG”) emissions. Achieving such reductions within the desired time frame is a tremendous challenge, particularly through conventional regulatory approaches. . . .
Floods, Hurricanes, Droughts, and a Free Market Economy: The Troubling Contradictions of State ESG Regulations
Lisa M. Fairfax
This Essay argues that state laws aimed at preventing consideration of environmental, social, and governance (“ESG”) issues, so-called anti-ESG regulations, are deeply problematic not only because they are riddled with troubling contradictions, but also because they are harmful to both economic and business concerns. First, state anti-ESG regulations reflect states’ vigorous efforts to deny the financial repercussions of weather-related events at the very same time that states are experiencing devastating financial fallout from floods, hurricanes, droughts, and other weather-related events. . . .
Clean Energy Infrastructure and Private Property: Lessons from the Midwest
Shannon Roesler
The transition to a clean energy economy is underway. But the amount of climate mitigation that it produces will depend on the speed of the transition. . . .
The Moral Boundary of the Firm
Michael P. Vandenbergh, Jane Miller, Margaret Blair & Jonathan M. Gilligan
Scholars have wrestled with the legal boundary of the firm for generations. The legal boundary limits the extent to which a firm can be held liable for the torts, contractual, and regulatory obligations of other corporations. . . .
“Not Just Another Utility”: The Tennessee Valley Authority and Public Power in the Energy Transition
Shelley Welton, Levi Phillips & Nikki Luke
Support for public ownership of utilities as a means of decarbonizing energy systems is rising. Yet good models for how to institutionally structure publicly owned utilities to accomplish this mission are scarce. . . .
Throwing Cold Water on Climate Reparations
Richard A. Epstein
In this Essay, I dispute the increasingly common claim that the pollution and other excesses from the developed nations of the Industrial West have, given their capitalist economies, forced global warming on the rest of the world, for which reparations are not only appropriate but also a moral imperative. But the counterarguments are decisive against these bold claims. . . .
Mandatory Public Reason-Giving in Corporate Governance
Sarah Haan
Since the late 1970s, corporate governance law has incorporated a growing number of mandates that require corporate boards to explain to their shareholders the reasons behind their decision-making. These mandates do more than merely require boards to disclose certain decisions. . . .
Using the Transmission Grid to Make “Second Best” Decarbonization Better
Jim Rossi
Instead of a “first best” decarbonization approach such as a national carbon tax, U.S. efforts to decarbonize the electric power sector draw heavily on the decentralized, often fragmented tools of state utility regulation. These “second best” decarbonization approaches can create many benefits, but they also present several challenges for energy markets. . . .
Climate Redress Revisited: Loss and Damage, Compensation, and Reparations
Carlton Waterhouse
Extreme events related to climate change continue to grow in frequency and consequences. Often, the nations most harmed are those least responsible for climate impacts. . . .
Climate Change and Corporate Law in the United States: Not “Woke” but Eyes Open
Cynthia Williams
This Essay discusses the evidence that climate change and nature loss create financially material risks for corporations that must be carefully considered by officers and directors pursuant to their fiduciary duties of loyalty and care. This analysis concludes that under the current state of fiduciary duty law and the known financial risks presented by climate change and nature loss, officers and directors of corporations may breach their fiduciary duties by failing to implement and monitor a robust system to identify and manage each type of industry-specific climate-related and nature-related risk. . . .
Notes
Student Notes
Volume 110, Issue 5
Insurer Subrogation Claims: The Next Frontier for Climate Litigation
Erin E. Frith
As climate change increases the frequency and destructiveness of extreme-weather events, first-party insurers’ costs have skyrocketed from the resulting policy claims. Insurers and experts have recognized these risks since the early 1990s, but the industry has been slow to meaningfully respond. While an extensive body of insurance–climate literature exists, comparatively little has been written about one of insurers’ most important risk-management tools: subrogation. . . .
Recent Online Edition:
Recent Online Edition:
How the Supreme Court Ghosted the PHOSITA: Amgen and Legal Constructs in Patent Law
Timothy R. Holbrook & Mark D. Janis
This Essay is an invited response to The Ghost in the Patent System: An Empirical Study of Patent Law’s Elusive “Skilled Artisan,” by Professors Laura Pedraza-Fariña and Ryan Whalen. In their piece, Pedraza-Fariña and Ryan Whalen offer an empirical study and use it to argue for a new conception of the Person Having Ordinary Skill in the Art (“PHOSITA”), patent law’s nod to the “reasonable person” construct. . . .
The Game, the Players, and the Board
Bruce E. Boyden
109 Iowa L. Rev. Online 105 (2024)
Christopher Seaman and Thuan Tran’s fascinating article, Intellectual Property and Tabletop Games, raises important questions about the role of intellectual property (“IP”) in developing and distributing innovative products. The market for tabletop games, Seaman and Tran argue, is able to sustain a high level of creativity at a high up-front cost, all while protected by some but not all of the IP rights that other industries’ outputs receive. Is that evidence of IP’s necessity or its superfluousness? . . .
Interpreting Textualist Slogans
Guha Krishnamurthi
109 Iowa L. Rev. Online 15 (2023)
Slogans are a blunt instrument—they may convey something of the truth, but they rarely do so undented. So too is the case with the influential textualism slogans “the text is [the] law,” “only the text [is] the law,” and “[o]nly the written word is the law.” In his insightful Article, Professor Erik Encarnacion shows why these statements are false, as they are category errors. He then observes that these slogans are unnecessary to establishing the core theses of textualism and that these slogans misunderstand and confuse features of textualism. And he is right about all of that. . . .
Should the Recent Timbs and Dobbs Decisions Revive Interest in the Excessive Fines Clause as the Constitutional Basis . . .
N. William Hines
109 Iowa L. Rev. Online 46 (2024)
In a series of cases in the early 1990s, the U.S. Supreme Court ruled that the Due Process Clause of the Fourteenth Amendment implicitly enabled federal courts to review state punitive damages awards for unconstitutional arbitrariness and excessiveness. Before settling on the Due Process Clause as the basis of federal regulation of punitive damages, in a 1989 decision the Court considered and rejected the claim that the Excessive Fines Clause of the Eighth Amendment, as incorporated into the Fourteenth Amendment, could provide the constitutional foundation for federal regulation of state punitive damages awards. . . .
The Racism of Immigration Crime Prosecution
Ingrid V. Eagly
109 Iowa L. Rev. Online 27 (2023)
Eric Fish’s Article, Race, History, and Immigration Crimes, explores the racist motivation behind the original 1929 enactment of the two most common federal immigration crimes, entry without permission and reentry after deportation. This Response engages with Fish’s archival work unearthing this unsettling history and examines how his research has informed a series of legal challenges seeking to strike down the modern federal border crossing law as violating the Equal Protection Clause of the Constitution. . . .
Does DARC Really Matter?: A Response to Wright & Moore
Troy A. Rule
109 Iowa L. Rev. Online 1 (2023)
Danaya Wright and Ethan Moore’s Article, DARC Matters: Repurposing Nineteenth-Century Property Law for the Twenty-First Century, is a valuable contribution to a growing body of legal academic literature focused on property law obstacles to the deployment of commercial drone technologies. Wright and Moore rightly acknowledge landowners’ long-held rights to exclude objects from the low airspace immediately above their land–rights that some major retailers have aggressively sought to weaken in recent years to facilitate drone delivery services. . . .