Building Norms from the Grassroots Up: Divestment,Expressive Politics,and Climate Change

The fossil fuel divestment movement is at the forefront of civil society initiatives to raise public consciousness about the need for a “fossil‐free” future. Through the lens of the social movement literature, this article shows how the movement has harnessed grassroots activists, engaged in innovative and sometimes disruptive forms of protest, and used cognitive framing and symbolic politics to gain media interest and persuade the public of the importance and legitimacy of its claims as well as to promote a new social norm. The relative instrumental, structural, and discursive power of the movement and its adversaries is also examined, showing how, notwithstanding the fossil fuel industry's deeply embedded structural and instrumental power, the movement has managed to shift the contest onto a terrain where it holds a comparative advantage. Finally, the movement's role in nonstate climate governance is considered, taking account of its interactions with and impact on a range of other climate actors. This article's conclusion is that climate governance is not only an instrumental or pragmatic process of mandating changes in behavior but an expressive and symbolic one of nurturing a new norm and institutionalizing a new set of moral principles.     

Litigation in the Fossil Fuel Divestment Movement

The fossil fuel divestment movement has been described as the fastest‐growing disinvestment movement in history, and in recent years it has continued to expand. Despite its growth, however, the movement has made little use of legal action, instead utilizing tactics of public pressure and persuasion, and the future role of litigation in the movement is unclear. To consider litigation's potential role in the movement and the challenges it may face, I examine the first and only case of litigation in the fossil fuel divestment movement thus far: Harvard Climate Justice Coalition et al. v President and Fellows of Harvard College et al. (2015), in which seven Harvard students (including the author) filed suit to compel the university to divest its endowment from fossil fuel companies. I examine motivations for filing the suit in the context of the broader fossil fuel divestment movement, the case's history, and the challenges faced by the suit, including arguments surrounding causation, particularization, representation of future generations, limiting principles, and framing. I then discuss potential opportunities for fossil fuel divestment litigation in the future. As the field of climate change law develops further, litigation over fossil fuel investments could grow in frequency and importance.     

Divesting from Climate Change: The Road to Influence

Is fossil fuels divestment likely to achieve its aims? This article evaluates the rationales for divestment in terms of their capacity to give the campaign influence. It focuses on the direct effects of divestment on financial actors because divestment is a specific means of exerting influence outside of conventional political channels. In seeking to end fossil fuel industries in order to halt climate change, the campaign deploys a variety of arguments to win support and wield influence, namely, the legality of divestment and, indeed, the emerging duty to divest; investors’ moral responsibility to avoid complicity in the fossil fuel economy; investors’ moral responsibility to use their leverage against climate polluters; and the power of financial sanctions to create a business case for abandoning fossil fuels. Although in combination they may be effective, each of these asserted rationales has some limitations that may diminish the influence of the divestment movement. Moreover, the movement does not engage sufficiently with the systemic qualities of finance capitalism that must also be reckoned with in order to address broader patterns of environmental unsustainability. Although the divestment movement aspires to ultimately change government policies on climate change, it may achieve greater influence by also seeking better government regulation of the financial economy.     

The Morality of Divestment

Divestment from companies that produce or heavily utilize fossil fuels has become one of the biggest issues in the contemporary moral debate surrounding climate change. Universities and other institutions are being asked to divest themselves of their fossil fuel–related investments. In this article I argue that, while the case for divestment is morally strong, not all of the arguments used to support divestment are equally strong. Moreover, which of these arguments is employed matters a great deal for the strength of the conclusions regarding divestment. There are two major groups of arguments: what I call positive arguments for divestment, which stem from the claim that divestment is a response to general duties to take action to prevent dangerous climate change, and what I call negative arguments, which stem from a duty not to cause harm. In this article I will briefly characterize what divestment means and to whom it applies. I will then look at negative and positive duty accounts of the duty to divest before looking at the standard objections to both. Objections have tended to cohere around the claims that divesting is inconsistent, useless and/or harmful, or should be abandoned for better options to avoid dangerous climate change.     

The Trouble with Boycotts: Can Fossil Fuel Divest Campaigns Be Prohibited?

Organizations like 350.org, Insure Our Future, and DivestInvest are leading campaigns to urge boycott and divestment from fossil fuels as a means to address climate change. Increasingly, they are finding success, from individual consumers to massive pension and sovereign wealth funds. However, as organized group boycotts, divest campaigns may be vulnerable to prosecution under antitrust law. This article explores the likelihood of success in such a case, considering the history of the legal treatment of organized boycotts, the scope and purpose of antitrust law, and the possible application of the First Amendment to the divestment context. The article finds that fossil fuel boycotts straddle a number of contradictory characteristics, making application of existing theories inadequate. In particular, existing precedent protects political boycotts, but not those with primarily economic objectives, and fails to definitively address whether a noncompetitive actor may undertake concerted action under antitrust law. In the context of climate change, where the political is economic, and political goals may seek significant economic changes (such as undermining an entire industry), existing theories may lead to a result that threatens both free expression and the health of the planet. The essential flexibility of the Sherman Act, however, provides room for protection of political activity, even where the ultimate objective is economic in nature.     

Study on the contest between free trade and trade protection in the current global economic recession: A perspective of public international law

For a long time there has been a contest between free trade and trade protection as the best strategy of promoting local and global economy. When the globe is again in the midst of economic recession, this contest intensifies. The current recession knocks out a severe blow to free trade as the “game rules” of world economy and aggravates the perplexities of free trade in certain aspects, which then arouses suspicion on the legitimacy of free trade. In order to address domestic economic and social problems, the “stimulus packages” of some countries offer much support to trade protection, further intensifying this contest. Confronted with the global economic disaster, trade protection can be helpful for alleviating the pressure in a given economy and thus mitigating domestic contradictions in a short period, but it may also complicate the legal order of trade and bring hindrance to domestic markets as well as international ones, and consequently, it will jeopardize the rights and interests of ordinary consumers and even stir up the grievance and resentment domestically or internationally. As the current economic recession has been a pressing issue for all the countries, there is a dire need for concerted efforts in the globe to stimulate the vigor of world economy and tide over the disaster.     

Review Essay: Divestment,Nonstate Governance,and Climate Change

This review essay examines the divestment movement's evolution, aims, and strategies as well as why it is both distinctive and important. It then locates the movement within the broader literature on nonstate climate change governance, suggesting how studying the movement may contribute to this literature. Finally, seeking to take stock some five years on from its inception, it assesses the movement's impact and effectiveness over that period.     

Legitimacies, Indian Identities, and the Law: The Politics of Sex and the Creation of History in Colonial New England

In an early-eighteenth-century legal contest on Chappaquiddick Island, Massachusetts, an Indian leader, Jacob Seeknout, appealed a ruling that under-mined his political authority. Seeknout's lawyer, Benjamin Hawes, crafted an argument that intertwined the sexual legitimacy of Seeknout's ancestors with his political legitimacy; at the same time, Hawes also linked Indians'collective chastity as a "nation" to their sovereign status. This paper examines the economic, religious, criminal, and historical contexts of this argument, exploring the history of Indians'conjugal practices and their reinvention as the criminal acts of fornication. The case illustrates some of the diverse sources of early American law, links between these legal structures and colonialism, and the importance for scholars of attending to the local level in exploring the power of colonial law to shape new racial identities.     

An identity‐based understanding of intergroup conflict

As conflict has at its basis a contest of ideas, values or resources between two or more groups, a comprehensive understanding of intergroup conflict must take into account the psychological processes that make groups and group behavior meaningful. Because individuals value and internalize identities relevant to their social, geographic, economic, historical and political positions, any devaluation, loss or imposed change to one of those identities is likely to be particularly threatening. The Social Identity Approach formulates an understanding of how these identity‐based motivations interact with social structures to predict intergroup conflict. Importantly, it also provides an explanation of how procedural justice mechanisms can be utilized to guide conflicting interests to common cooperative goals that can be accepted and pursued. By having representation and participation of relevant actors in the development of a shared identity, as is this case when nation states are formed or re‐created, threat is reduced, legitimacy built and the basis for positive intergroup relations created.     

MEDIATION AND CHILD PROTECTION

Mediation as a means of resolving disputes in child welfare (protection) proceedings is relatively new. Mediation as a process has been gaining recognition in almost every area of conflict or contest. It is not surprising, therefore, that its movement into taboo areas such as child welfare matters has occurred. This article focuses on how mediation in this once forbidden area is not only feasible but beneficial. Based on actual case mediations and comments, it will be shown that mediation in this area is necessary and long overdue. A blueprint and criteria will be provided to practitioners in this area as guidelines to be followed.     

Reflecting on 'Linkage': Cognitive and Institutional Change in The International Trading System

Since the creation of the World Trade Organisation, the international trading system has lived through a decade of sustained and vocal public criticism. International trade lawyers have made significant efforts to engage, evaluate and respond to these critiques. This article assesses the adequacy of these responses, focusing on the so-called 'trade and' debate – or 'trade linkage' debate – in international trade law. While this debate has produced valuable insights, it tends to legitimate and reproduce precisely those aspects of the trade regime which it purports to contest. Drawing on the insights of economic history, an alternative mode of scholarship is proposed – at once historical, critical, constructivist and institutionalist – to augment the current literature in the 'trade and' debate. Concrete lines of enquiry are proposed which, if followed, would help international trade lawyers to respond more productively and with greater legitimacy to contemporary public critiques of the international trading order.     

The Perils of ‘As If’ European Constitutionalism

This review article offers thoughts on Kaarlo Tuori's recent book, European Constitutionalism, and more particularly on what he calls the ‘disciplinary contest over the legal characterisation of the EU and its law’. As the book's title suggests, Tuori privileges the constitutional perspective in that contest, so much so—he freely admits—that his analysis ‘predetermine[s] how the EU and its law will be portrayed’. And therein also lies the book's main weakness. Tuori's predetermined ‘constitutional’ interpretation, like so much of the dominant legal discourse in the EU today, ultimately obscures the core contradiction in EU public law. National institutions are increasingly constrained in the exercise of their own constitutional authority but supranational institutions are unable to fill the void because Europeans refuse to endow them with the sine qua non of genuine constitutionalism: the autonomous capacity to mobilise fiscal and human resources in a compulsory fashion. The EU's lack of constitutional power in this robust sense derives from the absence of the necessary socio‐political underpinnings for genuine constitutional legitimacy—what we can call the power‐legitimacy nexus in EU public law. To borrow Tuori's own evocative phrase, the EU possesses at best a ‘parasitic legitimacy’ derived from the more robust constitutionalism of the Member States as well as from the positive connotations that using ‘constitutional’ terminology evokes regardless of its ultimate aptness. The result is an ‘as if’ constitutionalism, the core feature of which is an increasingly untenable principal‐agent inversion between the EU and the Member States, one with profound consequences for the democratic life of Europeans. The sustainability of integration over the long term depends on confronting these adverse features of ‘European constitutionalism’ directly, something that legal elites—whether EU judges, lawyers, or legal scholars—ignore at their peril.     

Responsive Adjudication and the ‘Social Legitimacy’ of the Internal Market

This article is concerned with the social legitimacy of EU free movement adjudication. What does social legitimacy entail within the multi‐level ‘embedded liberalism’ construction of the internal market? How can the objective of free movement (market access) and a commitment to social diversity both be pursued without one necessarily trumping the other? This article seeks to contribute to these questions on the basis of a discussion of what has come to be known as the argument from transnational effects and the development of an adjudicative model that can be termed ‘socially responsive’. On the basis of an ‘ideal types’ analysis of the case law of the Court, it is concluded that responsiveness to Member State social context is lacking in any coherent form in the case law of the Court of Justice of the European Union. However, a responsive model of adjudication can be (re)constructed by streamlining the identified ideal type adjudicative rationales. In the midst of this process of discovery, an operational rationale to establish the substantive (social) scope and reach of the internal market shall be submitted.     

Viewing Things Differently: The Dimensions of Public Perceptions of Police Legitimacy

Legitimacy (or “the right to exercise power”) is now an established concept in criminological analysis, especially in relation to policing. Substantial empirical evidence shows the importance of legitimacy in securing law‐abiding behavior and cooperation from citizens. Yet adequate theorization has lagged behind empirical evidence, and there has been a conflation of legitimacy with the cognate concepts of “trust” and of “obligation to obey the law.” By drawing on the work of Beetham (1991) and others (e.g., Bottoms and Tankebe, 2012 ), this study tests the hypothesis that the contents of the multiple dimensions of police legitimacy comprise procedural fairness, distributive fairness, lawfulness, and effectiveness. The study also investigates the relative influence of legitimacy and feelings of obligation on citizens’ willingness to cooperate with the police. Using data from London, the results substantiate the hypothesized dimensions of police legitimacy. In addition, legitimacy was found to exhibit both a direct influence on cooperation that is independent of obligation and an indirect influence that flows through people's felt obligations to obey the police. Implications for future research are discussed.     

Explaining energy disputes at the World Trade Organization

The international trade regime has seen an explosion of challenges to government support for renewable energy in recent years, yet fossil fuel subsidies, which dwarf renewable energy subsidies, have remained unchallenged. Existing explanations for this puzzling discrepancy have focused on four rationales: major fossil fuel exporters have not historically been members of the General Agreement on Tariffs and Trade/World Trade Organization (WTO); WTO subsidies rules are inadequate to deal with the specifics of the fossil fuel trade; nations have developed separate institutions to govern energy; and all states have fossil fuel subsidies, so a challenge to one country’s subsidies will prompt a reciprocal challenge. This article makes two contributions. First, it uses a survey of existing renewable energy trade disputes to critique the existing explanations. Most importantly, the article shows that the threat of reciprocal litigation exists in the renewable energy sector, and that WTO subsidies rules are rarely used to challenge renewable energy subsidies. Hence, neither the threat of reciprocal litigation nor the relative ease of applying WTO subsidies rules explains the discrepancy in the number of disputes. Second, the article hypothesizes that the economic diversification of energy-producing countries is correlated with and may drive whether energy-producing countries face WTO challenges to their energy support policies. Most major fossil fuel producers lack significant non-fossil fuel exports that could be restricted in order to induce them to reform their fossil fuel policies, the usual mechanism for enforcing a WTO judgment. States may also be more likely to challenge new, rather than long-standing, trade restrictions. This suggests that trade challenges will arise more frequently where innovation leads to competition and a demand for new trade restrictions (as in renewable energy), as opposed to in mature sectors of the economy (i.e., the fossil fuel industry). Economic diversification, in turn, is a good predictor of innovation.     

What prompts health care policy change? On political power contests and reform of health care systems (the case of Canada and Israel)

This article attempts to shed light on the complexity inherent in health care reform policies in the context of political power contests that trigger the changes imposed on the health care system. Rather than being solely a response to financial circumstances, as it is often claimed, we argue that these political contests lead to many of the changes in the systems. Furthermore, changes do not necessarily occur when worrying symptoms appear in the system, but rather when the contest reaches a peak and when neither side involved can emerge from the contest as winner or loser and as defender of the public interest. While in both cases fiscal problems in the health systems are usually brought up in order to justify reform, the trigger for change in Israel has been the power contest between the two main parties--the Labor Party and the Likud Party--with the Likud attempting to impair the financial basis of the former. In Canada, the power contests are between the provinces and the federal government.     

The Treaty of Amsterdam: Challenges of Flexibility and Legitimacy

The paper reviews key aspects of the new constitutional framework for the European Union, once the Treaty of Amsterdam has been ratified, in the light of the core challenges of managing flexible integration in an enlarged Union and securing adequate legitimacy for the integration project. Reviewing briefly the general debates on flexibility, and its relationship to different constitutional and political futures for the Union which are suggested by those involved in the debates, the paper examines the principal provisions governing what is termed 'closer cooperation' within the new Union treaties. The emphasis is placed on the framework provisions of the TEU, and those in the First Pillar. It is noticeable that the Treaty takes a 'non-ideological' approach to flexibility, eschewing direct support for those who interpret flexibility as meaning more or less integration in the future. It provides a framework for future cooperation which is likely to be too restrictive to be workable, except in very limited circumstances. However, particular instances of flexibility are provided in the Treaty, in the form of the opt-outs from the new free movement title and the communitarisation of Schengen for the United Kingdom, Ireland and Denmark, and some might even describe these as 'pick-and-choose'. The paper concludes by reviewing the flexibility debate against the background of the ongoing legitimacy challenge for the Union, arguing that, as currently conceived, flexibility is more to do with balancing political interests than with securing or enhancing legitimacy.     

"双规双指":相对合理性与适法有限性

"双规双指"作为纪检、监察的调查措施,既有政策依据,也有党纪国法规范可循,既存在合理性,也有合法性."双规双指"在实践中演变为刑事侦查措施,成为侦查权力的运行方式,仍然具有相对合理性,但适法性不足,有违侦查法治主义的要求和社会主义民主法治建设的需要,应当改革.     

CRACKS IN THE PENAL HARM MOVEMENT: EVIDENCE FROM THE FIELD*

Research Summary For more than three decades, the penal harm movement, which involves “get tough” ideology and policies, has held sway over U.S. corrections. Scholars have justifiably detailed and decried this movement, but in so doing, they have also inadvertently contributed to the view that a punitive worldview is hegemonic. In contrast, we detail four major “cracks” in the penal harm movement's dominance: the persistence of rehabilitative public attitudes, the emergence of second thoughts about the wisdom of harsh sanctions, the implementation of progressive programs, and the increasing legitimacy of the principles of effective intervention for guiding correctional practices. Policy Implications Taken together, these “cracks” comprise evidence that ideological space and political will exist to fight the penal harm movement and to map out a more efficacious and progressive response to crime. Because of the persistence of social welfare sentiments and growing challenges to the legitimacy of “get tough” policies, the potential to continue, if not expand, this countermovement is present. Taking advantage of this opportunity, however, will require forfeiting the belief that there is no escape from a punitive future and undertaking systematic efforts to devise correctional strategies that are based on solid science, improve offenders' lives, and protect public safety.     

Developing Administrative Principles in the EU: A Foundational Model of Legitimacy?

This paper argues that administrative legitimacy has been neglected as having the potential to provide a foundation for the legitimacy of the EU institutions. The development of the administrative law‐type mechanisms within the EU is almost exclusively focused on the activities of the Member States as the main implementers of Union law. This has left an administrative gap at the level of the EU institutions, with little evidence of determinative horizontal administrative principles to be found in either the Treaties or the case‐law of two European courts. Where the courts have acted, they have adopted a sectoral and highly circumscribed approach to the development of administrative norms. The paper examines whether administrative principles can be harnessed as a mechanism for increasing the EU's legitimacy and, if so, how these principles fit with the institutions' approach to the legitimacy question. Post Lisbon, can evidence be found within the Treaties that the administrative route to legitimacy has not been entirely foreclosed? This paper proposes a model of administrative legitimacy for the EU level of administration that provides a foundation for the interconnected concepts of good governance and political legitimacy.