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Mapping the relationship between regulation and innovation from an interdisciplinary perspective: A critical systematic review of the literature Regul. Gov. (IF 3.2) Pub Date : 2024-07-16 Bruno Queiroz Cunha, Flavia Donadelli
A considerable amount of work has focused on “regulatory innovation” in the social sciences. This scholarship has conceptually defined certain types of regulatory changes as innovations and explored how regulation, as a policy instrument, alters the pace of technological innovation. More recently, a renewed interest for policy mixes and more dynamism in industrial innovation policies around the world
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Problem exposure and problem solving: The impact of regulatory regimes on citizens' trust in regulated sectors Regul. Gov. (IF 3.2) Pub Date : 2024-07-06 Yue Guo, Tianhao Zhai, Hao Huang, Luozhong Wang
A wealth of studies has discussed the impact of different regulatory regimes on firms, but have ignored the differences in citizens' attitudes toward firms in different regulatory regimes. Exploring these attitudes is crucial to understanding the micro‐effects of regulatory regimes and market developments. This study aims to investigates the impact of regulatory regimes on citizens' trust in regulated
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Policy growth and maintenance in comparative perspective Regul. Gov. (IF 3.2) Pub Date : 2024-07-05 Christoph Knill, Christina Steinbacher, Yves Steinebach, Philipp Trein
Policy growth comes with multiple challenges for policy implementation. Congested policy portfolios increase the likelihood of interactions and contradictions between different policy objectives and instruments. Moreover, policy growth can lead to difficulties during implementation when many public and private organizations must cooperate and manage increasing complexity and overlapping responsibilities
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Introduction to the Special Issue on State and Local Governance The Yale Law Journal (IF 5.2) Pub Date : 2024-06-30 Dena M. Shata
Many are well-acquainted with Justice Brandeis’s metaphor that states serve as laboratories o…
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Lessons from My Mentor, Justice Sandra Day O’Connor The Yale Law Journal (IF 5.2) Pub Date : 2024-06-30 Michelle Friedland
author. Circuit Judge, United States Court of Appeals for the Ninth Circuit; Law Clerk for Just…
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The Local Lawmaking Loophole The Yale Law Journal (IF 5.2) Pub Date : 2024-06-30 Daniel B. Rosenbaum
This Article illustrates how contracts between local governments—interlocal agreements (ILAs)—play a powerful lawmaking function yet lack democratic accountability. It traces the problem to state statutory schemes, where checks designed to promote transparency are ignored by state officials and courts, enabling undemocratic local power by virtue of state silence.
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The Subdivided City The Yale Law Journal (IF 5.2) Pub Date : 2024-06-30 Clayton P. Gillette
City subunits may facilitate municipal objectives of service provision and democratic governance. Different types of subunits risk various conflicts with their constituents and the city that hosts them. This Feature analyzes sources of those conflicts and reforms to address them, and argues for city deference to subunits in limited cases.
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Public Utility’s Potential The Yale Law Journal (IF 5.2) Pub Date : 2024-06-30 Alison Gocke
State-level public utility commissions regulate our energy systems. But they are often viewed as ill-equipped to address climate change. This Feature counters that conventional wisdom by uncovering a forgotten history of New York’s energy transition, revealing that public utility’s potential to facilitate a clean-energy transition is broader than we imagine.
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Suing Cities The Yale Law Journal (IF 5.2) Pub Date : 2024-06-30 Zachary D. Clopton, Nadav Shoked
Current law makes it easy to sue cities. Too easy. While suing federal and state governments is notoriously difficult, various doctrines open courthouse doors to taxpayers, homeowners, and politically favored groups suing local governments. These doctrines further strengthen powerful actors, weaken cities’ ability to initiate reforms, and undermine local democracy.
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The Education Justice The Yale Law Journal (IF 5.2) Pub Date : 2024-07-01 Justin Driver
author. Robert R. Slaughter Professor of Law, Yale Law School; Law Clerk for Justice Sandra …
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Large Legal Fictions: Profiling Legal Hallucinations in Large Language Models Journal of Legal Analysis (IF 3.0) Pub Date : 2024-06-26 Matthew Dahl, Varun Magesh, Mirac Suzgun, Daniel E Ho
Do large language models (LLMs) know the law? LLMs are increasingly being used to augment legal practice, education, and research, yet their revolutionary potential is threatened by the presence of “hallucinations”—textual output that is not consistent with legal facts. We present the first systematic evidence of these hallucinations in public-facing LLMs, documenting trends across jurisdictions, courts
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The governing instruments for resilience in the neo-Weberian state: The challenge of integrating Ukrainian war refugees Regul. Gov. (IF 3.2) Pub Date : 2024-06-21 Andrej Christian Lindholst, Kurt Klaudi Klausen, Morten Balle Hansen, Peter Sørensen
The unsettling conditions of contemporary society, marked by recurrent transboundary crises and turbulence, stimulate discussions about the resilience of different governing models. Public bureaucracy and its governing instruments are confronted with the virtues and vices of models dominated by markets and networks. We present a case study demonstrating how the governing instruments within a system
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Patterns of company misconduct, recidivism, and complaint resolution delays: A temporal analysis of UK pharmaceutical industry self‐regulation within the European context Regul. Gov. (IF 3.2) Pub Date : 2024-06-20 Shai Mulinari, Dylan Pashley, Piotr Ozieranski
Interfirm self‐regulation through trade associations is common but its effectiveness is debated and likely varies by time, country, and industry. This study examines self‐regulation of pharmaceutical marketing, characterized by delegation of major regulatory responsibilities to trade associations' self‐regulatory bodies. In addressing critical research gaps, this study first analyzes 1,776 complaints
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Using the institutional grammar to understand collective resource management in a heterogenous cooperative facing external shocks Regul. Gov. (IF 3.2) Pub Date : 2024-06-17 Damion Jonathan Bunders, Tine De Moor
Worker cooperatives in the gig economy can involve large and heterogeneous memberships, which makes them vulnerable to member opportunism depleting collective resources. External shocks may present another challenge for collective resource management. This raises the question of how heterogeneous cooperatives design rules to mitigate opportunistic behavior and whether these rules evolve in the face
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The voice of implementation: Exploring the link between street-level integration and sectoral policy outcomes Regul. Gov. (IF 3.2) Pub Date : 2024-06-09 Christina Steinbacher
Ineffective policies plague democratic systems and challenge their legitimacy. While existing research highlights the importance of street-level bureaucrats (SLBs) as de facto “policymakers,” our understanding of SLBs' aggregate effects on policy outcomes remains limited. Therefore, this paper proposes a shift in perspective, redirecting attention from the micro level toward institutional structures
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Regulatory agency reputation acquisition: A Q Methodology analysis of the views of agency employees Regul. Gov. (IF 3.2) Pub Date : 2024-06-09 Lauren A. Fahy, Erik-Hans Klijn, Judith van Erp
This article reports findings of a Q Methodology study in which we explored the opinions of employees from eight Dutch regulatory agencies on how agencies gain their reputation. This is the largest study to date examining employee's views on the relative importance of different factors in reputation acquisition by public organizations, and the first analyzing employees in regulatory agencies. Results
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Mapping bureaucratic overload: Dynamics and drivers in media coverage across three European countries Regul. Gov. (IF 3.2) Pub Date : 2024-06-09 Alexa Lenz, Yves Steinebach, Mattia Casula
Bureaucratic overburdening has emerged as an important theme in public policy and administration research. The concept signifies a state where public administrators are overwhelmed with more tasks and responsibilities than they can effectively handle. Researchers attribute this phenomenon to several key factors, such as an increasing assault on the public sector, a growing volume of policies to enforce
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How trust matters for the performance and legitimacy of regulatory regimes: The differential impact of watchful trust and good-faith trust Regul. Gov. (IF 3.2) Pub Date : 2024-06-05 Koen Verhoest, Martino Maggetti, Edoardo Guaschino, Jan Wynen
Trust is expected to play a vital role in regulatory regimes. However, how trust affects the performance and legitimacy of these regimes is poorly understood. Our study examines how the interplay of trust and distrust relationships among and toward political, administrative, and regulatory actors shapes perceptions of performance and legitimacy. Drawing on cross-country survey data measuring trust
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The Glaring Gap in Tort Theory The Yale Law Journal (IF 5.2) Pub Date : 2024-05-31 Kenneth S. Abraham, Catherine M. Sharkey
The glaring gap in tort theory is its failure to take adequate account of liability insurance. We explain how to begin filling the gap in tort theory that results from omitting consideration of liability insurance, showing how liability insurance can appropriately figure in both deontic and consequentialist theories of tort.
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The Past and Future of Universal Vacatur The Yale Law Journal (IF 5.2) Pub Date : 2024-05-31 Mila Sohoni
Universal vacatur is a legitimate part of administrative law’s remedial scheme, not a judicial invention. This Feature traces universal vacatur from the pre-APA period through Abbott Labs. It also juxtaposes the case against universal vacatur with the new major questions doctrine, showing that both centralize power in the Supreme Court.
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Remembering In re Turner: Popular Constitutionalism in the Reconstruction Era The Yale Law Journal (IF 5.2) Pub Date : 2024-05-31 Lyle Cherneff
Relying on insights from Critical Race Theory and feminist legal theory, this Note presents a historical account of the underexamined movement to end racialized apprenticeship laws in the post-slavery era. The Note argues that our shared constitutional memory has been artificially narrowed by underconsideration of freedpeople’s constitutional theories and claims.
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The Necessary and Proper Stewardship of Judicial Data Stanford Law Review Pub Date : 2024-05-31 Zachary D. Clopton & Aziz Z. Huq
Abstract not available
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War Reparations: The Case for Countermeasures Stanford Law Review Pub Date : 2024-05-31 Oona A. Hathaway, Maggie M. Mills & Thomas M. Poston
Abstract not available
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The Legal Crisis Within the Climate Crisis Stanford Law Review Pub Date : 2024-05-31 Mark Nevitt
Abstract not available
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The Religious Exception to Abortion Bans: A Litigation Guide to State RFRAs Stanford Law Review Pub Date : 2024-05-31 Ari Berman
Abstract not available
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At Will as Taking The Yale Law Journal (IF 5.2) Pub Date : 2024-06-01 Gali Racabi
abstract. Employment at will is legally and politically entrenched. It is the default terminat…
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Rationalizing Absurdity The Yale Law Journal (IF 5.2) Pub Date : 2024-05-31 Jim Huang
abstract. Critiqued as a blank check for judicial intervention, the absurdity canon has been …
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Come together: Does network management make a difference for collaborative implementation performance in the context of sudden policy growth? Regul. Gov. (IF 3.2) Pub Date : 2024-05-31 Susanne Hadorn, Fritz Sager
Cooperative forms of policy implementation bear the promise of being an answer to the policy delivery challenge resulting from policy growth, with the quality of network management often rated as a key success factor. The positive relationship between network management and performance in networks, however, is primarily supported by theoretical reasoning rather than empirical evidence. The present
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Governance transference and shifting capacities and expectations in multi‐stakeholder initiatives Regul. Gov. (IF 3.2) Pub Date : 2024-05-27 Johanna Järvelä
The governing attributes of authority, legitimacy, and accountability are essential to any type of governance to be able to function effectively. For public forms of governing, the attributes are part of the structures and institutions of democratic states, for example, through the tripartition of power, voting, and legal structures. For private forms of governance, such as multi‐stakeholder initiatives
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A New Leaf: Is It Time to De-objectify Plants in Private Law? Transnatl. Environ. Law (IF 2.6) Pub Date : 2024-05-27 Joris van Laarhoven, Rens Claerhoudt
In civil law jurisdictions, plants have traditionally been classified as ‘objects’ (or ‘things’) under private law, reflecting an age-old tendency, certainly in the Western world, to underestimate and undervalue plants. Recent legal debates increasingly acknowledge the special nature of plants. Perhaps the most eye-catching debate in this context is the one on Rights of Nature, which have much potential
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Transforming the Rule of Law in Environmental and Climate Litigation: Prohibiting the Arbitrary Treatment of Future Generations Transnatl. Environ. Law (IF 2.6) Pub Date : 2024-05-24 Katalin Sulyok
This article maps the shared legal anatomy of climate and environmental lawsuits, in which plaintiffs claim protection for future generations before domestic or international courts. By closely analyzing the litigation strategies of plaintiffs and the inquiry of courts, the article argues that these proceedings revolve around structurally similar legal standards across domestic and international jurisdictions
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Law, Colonial-Capitalist Floods, and the Production of Injustices in Eastern India: Insights for Climate Adaptation Transnatl. Environ. Law (IF 2.6) Pub Date : 2024-05-07 Birsha Ohdedar
Floods are not merely ‘natural’ disasters; rather, they emerge as socio-natural phenomena shaped by political, social, and economic processes. Law plays a pivotal role in producing and sustaining these processes and contributes to the creation of unjust environments. Drawing on political ecology and environmental history, this article analyzes the role of law and its interactions with colonialism and
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Assessing Drifting Fish Aggregating Device (dFAD) Abandonment under International Marine Pollution Law Transnatl. Environ. Law (IF 2.6) Pub Date : 2024-05-02 Valentin Schatz
This article asks whether the abandonment of drifting fish aggregating devices (dFADs) is illegal under international marine pollution law. To answer this question, it provides a brief overview of the general international legal framework for the protection of the marine environment as well as specific legal regimes, namely the London Convention on the Prevention of Marine Pollution by Dumping of Wastes
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Ghostwriting Federalism The Yale Law Journal (IF 5.2) Pub Date : 2024-04-30 Adam S. Zimmerman
Drawing on interviews and historical accounts, this Article explains how federal agencies help states write legislation. Even as the Supreme Court has curtailed administrative power in the name of federalism, this Article shows how agency collaborations with statehouses may further values associated with federalism by encouraging accountability, deliberation, and experimentation.
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Resisting Mass Immigrant Prosecutions The Yale Law Journal (IF 5.2) Pub Date : 2024-04-30 Eric S. Fish
Over the last two decades, U.S. courts have convicted hundreds of thousands of Latin American defendants for misdemeanor immigration crimes. This Article documents, analyzes, and draws lessons from immigrants’ defiance. In particular, the battles in California and Texas reveal several effective legal strategies for immigrant defendants to resist mass criminalization.
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When the Sovereign Contracts: Troubling the Public/Private Distinction in International Law The Yale Law Journal (IF 5.2) Pub Date : 2024-04-30 Kate Yoon
The distinction between a state’s public and private acts is flimsy and unclear. Choosing to see an act as essentially private or public often obscures the other features that complicate that characterization. And selectively recognizing the private aspects of transactions has disproportionately subordinated Global South nations.
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Rationalizing the Administrative Record for Equitable Constitutional Claims The Yale Law Journal (IF 5.2) Pub Date : 2024-04-30 Braden Currey
The APA’s conventional rules stem from traditional rules of relevancy for discovery, rather than a statutory mandate. The scope of evidentiary review for constitutional claims against agencies should be determined by decision rules for a particular claim, consonant with the underlying principles of the scope of review in administrative litigation.
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Prisons as Laboratories of Antidemocracy The Yale Law Journal (IF 5.2) Pub Date : 2024-04-30 Brandon Hasbrouck
Jeffrey Bellin's Mass Incarceration Nation robustly analyzes how state and federal policies have combined to drive up prison populations. Mass incarceration represents a failure of democracy, but the repressive policies of American prisons represent an even graver threat as laboratories of antidemocracy that export these policies to the body politic.
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Real-World Prior Art Stanford Law Review Pub Date : 2024-04-30 Jonathan S. Masur & Lisa Larrimore Ouellette
Abstract not available
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Tribal Representation and Assimilative Colonialism Stanford Law Review Pub Date : 2024-04-30 Elizabeth Hidalgo Reese
Abstract not available
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Meaningful Machine Confrontation Stanford Law Review Pub Date : 2024-04-30 Benjamin Welton
Abstract not available
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Optimism in International Human Rights Law Scholarship Am. J. Int. Law (IF 2.7) Pub Date : 2024-04-29 Başak Çalı
As a field of practice, international human rights law (IHRL) is in constant motion. The four books under review explore the legal, political, and civic dynamics that continuously shape and reshape this vibrant area of law. In this Essay, I underscore two important trends in contemporary IHRL scholarship that these books highlight. First, these works share a strong emphasis on agency, understood as
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How to Get the Property Out of Privacy Law The Yale Law Journal (IF 5.2) Pub Date : 2024-04-22 Jane R. Bambauer
Privacy law emphasizes control over “your” data, but requiring consent for each data use is unprincipled, not to mention utterly impractical in the AI era. American lawmakers should reject the property model and use a framework that creates defined zones of privacy and clear safe harbors, irrespective of consent.
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ARTificial: Why Copyright Is Not the Right Policy Tool to Deal with Generative AI The Yale Law Journal (IF 5.2) Pub Date : 2024-04-22 Micaela Mantegna
This Essay critiques the inadequacy of copyright law to address the challenges Generative Artificial Intelligence (GAI) poses. By analyzing copyright law’s frictions and inconsistent treatment of technical terms, and challenging the definitions of creativity, this Essay establishes a taxonomy of individual- and society-level rationales against using copyright to regulate GAI.
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The Ethics and Challenges of Legal Personhood for AI The Yale Law Journal (IF 5.2) Pub Date : 2024-04-22 Hon. Katherine B. Forrest (Fmr.)
AI’s increasing cognitive abilities will raise challenges for judges. “Legal personhood” is a flexible and political concept that has evolved throughout American history. In determining whether to expand that concept to AI, judges will confront difficult ethical questions and will have to weigh competing claims of harm, agency, and responsibility.
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Constructing AI Speech The Yale Law Journal (IF 5.2) Pub Date : 2024-04-22 Margot E. Kaminski, Meg Leta Jones
This Essay advocates for a “legal construction of technology” approach to AI speech, challenging the notion that technology disrupts law and emphasizing how law shapes technology based on societal value. Applying the method to four different legal constructions of AI, the authors examine AI within First Amendment jurisprudence, content moderation, risk regulation, and consumer protection, highlighting
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Disentangling Leviathan on its home turf: Authority foundations, policy instruments, and the making of security Regul. Gov. (IF 3.2) Pub Date : 2024-04-23 Andreas Kruck, Moritz Weiss
Making security has been Leviathan's home turf and its prime responsibility. Yet, while security states in advanced democracies share this uniform purpose, there is vast variation in how they legitimize and how they make security policies. First, the political authority of elected policy‐makers is sometimes superseded by the epistemic authority of experts. Second, states make security, in some instances
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Bankruptcy by Another Name The Yale Law Journal (IF 5.2) Pub Date : 2024-04-16 Anthony J. Casey, Joshua C. Macey
A recent essay in this Journal critiques bankruptcy for limiting the litigation system’s ability to promote noneconomic public-policy goals. This Response argues that bankruptcy can and does further these public values, and that it is reasonably easy to tweak bankruptcy law to accommodate these goals more effectively.
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Can We Save Our Foodways? The Inflation Reduction Act, Climate Change, and Food Justice The Yale Law Journal (IF 5.2) Pub Date : 2024-04-17 Daniel Cornelius, Steph Tai
This Essay examines USDA programs supported by the Inflation Reduction Act and its approach toward addressing climate change and historical funding inequities for Indigenous and Black Farmers. It also argues for how the next Farm Bill can expand upon these efforts to further address inequities and promote climate resilience.
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The Board of Trade and the regulatory state in the long 19th century, 1815–1914 Regul. Gov. (IF 3.2) Pub Date : 2024-04-17 Perri 6, Eva Heims
How does regulatory statehood develop from the regulatory work which governments have always done? This article challenges conventional views that regulatory statehood is achieved by transition to arm's length agencies and that it replaces court-based enforcement or displaces legislatures in favor of less accountable executive power. To do so, we examine the major 19th-century surge in development
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Intersectional Victims as Agents of Change in International Human Rights-Based Climate Litigation Transnatl. Environ. Law (IF 2.6) Pub Date : 2024-04-16 Angela Hefti
Climate change uniquely affects those who are at the intersection of several inequalities simultaneously, such as those based on gender, age, and disability. This makes them ‘directly affected’ by climate change, which is crucial in establishing ‘victim status’ under Article 34 of the European Convention on Human Rights. At the same time, as a result of unequal power relations, intersectional victims
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Refining Reflexive Environmental Law by Nature and Nurture: Autonomy, Accountability, and Adjustability Transnatl. Environ. Law (IF 2.6) Pub Date : 2024-04-15 Violet Ross, Lucila de Almeida
Reflexive environmental law (REL) enables an understanding of how law builds potential for private company reflexivity. Reflexivity helps to avoid lock-in, and enhances learning and self-organization to resolve complex sustainability challenges. Thus far, REL theory has excluded traditional command-and-control regulation as a form of REL. This limits the potential of REL to understand how legislation
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Carbon Leakage and International Climate Change Law Transnatl. Environ. Law (IF 2.6) Pub Date : 2024-04-15 Alice Pirlot
Carbon leakage – the increase of greenhouse gas emissions in foreign jurisdictions following the introduction of domestic or regional climate mitigation measures – raises key questions in the climate change debate. This includes whether carbon leakage constitutes a threat to the environmental integrity of climate policies and, if so, how this could be mitigated. Through the use of four hypothetical
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The Illusion of Harmony: Power, Politics, and Distributive Implications of Rights of Nature Transnatl. Environ. Law (IF 2.6) Pub Date : 2024-04-15 Matthias Petel
This article argues that the Rights of Nature (RoN) framework is compatible with various ideological outlooks and political options. As a result, those initiatives may translate into extremely diverse institutional implementations with contrasted outcomes in terms of power distribution. The institutional design of RoN has deep political implications for various social groups who hold conflicting claims
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Permanence and Liability: Legal Considerations on the Integration of Carbon Dioxide Removal into the EU Emissions Trading System Transnatl. Environ. Law (IF 2.6) Pub Date : 2024-04-15 Lukas Schuett
This article examines how carbon dioxide (CO2) removal credits can be integrated into the European Union (EU) Emissions Trading System (ETS), focusing on questions of permanence and climate liability. It identifies challenges within the integration process and analyzes approaches from practice and literature to cultivate learning. These approaches apply different strategies to address the issue of
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History and Tradition’s Equality Problem The Yale Law Journal (IF 5.2) Pub Date : 2024-04-11 Cary Franklin
This Essay identifies a key feature of the Court’s new history-and-tradition doctrine that has not yet attracted significant attention: outcomes in history-and-tradition cases (involving guns, abortion, etc.) are often driven by hidden, contemporary judgments about equality—judgments whose implications may extend far beyond these cases.
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Making History The Yale Law Journal (IF 5.2) Pub Date : 2024-04-11 Melissa Murray
foreword What is history but a fable agreed upon? —Napoleon Bonaparte. Introduct…
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Unraveling how intermediary-beneficiary interaction shapes policy implementation Regul. Gov. (IF 3.2) Pub Date : 2024-04-09 Cynthia L. Michel
As a result of policy growth, implementing agencies often face new mandates without the necessary capacity expansion to comply with, thus resorting to intermediaries. However, intermediaries are not innocuous to the implementation process, especially when they are expected to play the double role of target and intermediary, responsible for translating/interpreting regulation for beneficiaries. How
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