Note

An Empirical Analysis of Sue-and-Settle in Environmental Litigation

This Note aims to expand understanding of the sue-and-settle controversy by providing useful data, analytics and commentary from which courts, policymakers and academics may further their exploration of the process.  This Note applies empirical analysis to sue-and-settle under the Clean Air Act, Clean Water Act and Endangered Species Act under the current Administration.  It explores the principal charge against the process: that it has the effect of secret, backdoor rulemaking; and, it finds that a more nuanced analysis than that conducted by leading critics of the practice should properly distinguish between two very different uses of the practice—one deleterious, the other beneficial.  Accordingly, the Note concludes that only with the former use should the process give cause for alarm, and that such deleterious uses make up only an extremely small fraction of sue-and-settle cases.  Thus, wholesale destruction of the process is unnecessary; targeted remedies are more appropriate.

In the war over sue-and-settle, this Note does not completely dispel the fog by providing a definitive account of the causation behind the explosive growth in the process.  But it does, however, provide further illumination of the battlefield, better informing the ongoing debate.

 

Contracting for Good: How Benefit Corporations Empower Investors and Redefine Shareholder Value

A new business form known as a benefit corporation is now available in twenty-six states and the District of Columbia. The statues creating the new corporate form require directors to balance shareholders’ pecuniary interests with the needs of the community, the environment, and non-shareholder constituents, such as employees and consumers. These statutes appear to reject the notion that corporations exist to maximize shareholder value. This Note, however, proposes an alternative interpretation: Rather than creating duties towards the community at large, benefit corporations give voice to a class of shareholders who would prefer (at least in part) to fund corporate social initiatives with the very resources that would have been used to increase shareholder value. By serving both as the shareholders’ investment vehicle and preferred philanthropic organization, benefit corporations empower shareholders with greater control over the ends, and to a limited extent the means, of corporate governance. The result is an entity that embraces shareholder primacy more than the traditional corporate form itself.

We the People: The Original Meaning of Popular Sovereignty

The Constitution is based on popular sovereignty. But who are the People? Two hundred and twenty six years after the ratification of the Constitution, the answer to this question is still debated. This Note jumps into the fray, closely examining the Constitution itself and the history surrounding its adoption in order to reverse-engineer a coherent theory of American popular sovereignty as it was understood at the time of ratification and the adoption of the Bill of Rights. Did the state peoples exist as sovereigns before the Constitution? If yes, did the Constitution consolidate them into one unitary national people? If not, is there a national people in addition to the state peoples? In short, there is a national people, but it coexists with the sovereign state peoples. Furthermore, the national people must be interpreted through a lens of state peoples—the People is national in scope and importance, but it is defined in reference to the state peoples. The reservoir of reserved powers—those uses of governmental authority that are not expressly mentioned in the text of the Constitution—defaults to the state level. This balance of peoples means that the American system is one of limited sovereignty. Neither the federal nor the state governments can eliminate or alter the other; they reinforce each other in a structure that presupposes its perpetuity. Dual popular sovereignty is the essence of federalism, and it has broad implications for the fundamental distribution of power between the federal government and the states.

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