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.     

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.     

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.     

Fraud,Free Speech and Fossil Fuel: Lessons from Big Tobacco for Big Oil

Recent journalistic investigations revealed that ExxonMobil carried out research beginning in the 1970s indicating fossil fuel's dangerous role in global warming. Rather than heed the warnings of its research, for the next few decades, ExxonMobil instead chose to become a leader in climate change denial; stressing uncertainty, propagating misinformation, funding denial, and politicizing and undermining the expert scientific consensus. Exxon's behavior invoked the tactics used by the tobacco industry years earlier, tactics which wound up the subject of a successful federal government lawsuit under the Racketeer Influenced and Corrupt Organizations (RICO) Act. The parallels with the tobacco industry prompted legislators and environmentalists to call on the Department of Justice to use RICO again to hold the fossil fuel industry to account. This article will consider the legal issues associated with bringing such an action, and whether useful lessons can be drawn from the tobacco litigation.     

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.     

A Contest for Legitimacy: The Divestment Movement and the Fossil Fuel Industry

The divestment movement has sought to influence attitudes to fossil fuels by framing producer companies as pariahs and as unnecessary and redundant. In response, the fossil fuel industry has engaged in a direct and aggressive attack on the divestment movement. This article considers the relationship between the movement and the industry as a contest for legitimacy for both the organizations and the norms they advocate. Through a case study of the coal discourse in Australia from 2013 to 2016, it explores how each party has attempted to undermine the other's legitimacy and to build or defend its own. It concludes that the contest for legitimacy is complex, being conducted at multiple levels (pragmatic, moral, legal, and cognitive) and before multiple audiences. For the movement to “win” the contest, it will require more than a simple rebalancing of the legitimacy scales.     

Enough Arguments About Models of Development

A krai-level organization for the Our Home Is Russia movement has recently been established in Krasnodar Krai. This event undoubtedly had major political importance, and not just at the level of the Kuban. It also gave me serious cause to consider what lies ahead for us in the near future and whether, perhaps, the time has come when we can realistically hope to escape all the misfortunes we know so well. I joined the new movement and even agreed to head the krai organization, but not by any means out of a "call of duty." I am convinced that this is not simply another "provincial branch" of yet another capital-city party. The realities of recent years have shown that none of the pocket-sized and even smaller parties can solve the problems that face us as citizens of our country. People are waiting for things to happen. They are waiting for speculative arguments over this or that model of social development to be replaced by the creation of a normal human life.     

Assuming Free Speech

Free speech is commonly seen in negative terms as a limitation on government action that restricts speech. Although there have long been arguments that government also has an obligation to act in support of free speech – in part because common free speech rationales appear to involve more than a negative right – much free speech law adopts a negative understanding. This article examines assumptions within negative approaches to free speech and finds little reason to support the idea that free speech exists primarily when the state is not directly limiting speech. On this analysis, arguments about free speech should be reframed. New questions would emerge about what legal limitations and obligations should be applied in the name of free speech and through what methods. The limited recognition given to positive free speech by, for example, the European Court of Human Rights would warrant further development. Free speech would have important positive and negative aspects.     

Constructing Hysteria: Legal Signals as Producers of Siting Conflicts Over Sexually Violent Predator Placements

Sexually violent predator (SVP) statutes define some sex offenders as dangerous enough to be segregated from society, but then require their release into local communities. This article examines how decision makers and community members interpret and respond to this inherent contradiction during disputes over SVP placements. The article departs from traditional moral panic explanations of reactions to sex offenders by linking literature on local siting conflicts to insights from legal mobilization studies in order to understand the origins and features of community opposition to sex offenders. Data from three case studies of SVP placements in California suggest that interpretations of what I call legal signals, or implicit messages embedded in state laws, produced these conflicts. The findings shed new light on the role of law in siting conflicts and collective action by explaining how state laws facilitate communities’ exclusion from siting decisions, encourage local opposition, and disempower already marginalized communities.     

Seizing the opportunity: tackling fossil fuel subsidies under the UNFCCC

Analyses from international and nongovernmental organizations have pointed to the negative environmental, economic and social implications of the sizable subsidies handed out by governments for the production and consumption of fossil fuels. Given their relevance for achieving climate policy objectives, it is perhaps surprising that the climate regime established by the United Nations Framework Convention on Climate Change (UNFCCC) does not address fossil fuel subsidies. This article discusses the possible role of the UNFCCC in tackling fossil fuel subsidies. It suggests that the UNFCCC could enhance the transparency around fossil fuel subsidies and put in place incentives for countries to undertake subsidy reform. However, the possibilites under the UNFCCC will be limited by political barriers to subsidy reform at the national level and will need to be carried out in coordination with other international institutions active in the field.     

Elmer's case: A legal positivist replies to Dworkin

Conclusion I have argued that Legal Positivism can accommodate the existence oftheoretical disagreements in law and that Ronald Dworkin is wrongto claim otherwise. As far as Legal Positivists are concerned, evenjudges who differ over both the truth of propositions of law and thegrounds or sources of law can have a legal duty to resolve their dis-agreements on the basis of legal arguments. The duty exists whenconventional legal practice creates it. Moreover, all Anglo-Americanlegal systems impose the duty on judges because all such systemscontain legal practices of the right sort: practices creating expectationsthat cases will be decided on the law even when they raise doubtsabout the content or proper formulation of a rule of recognition.Thus, Elmer's Case poses no threat to Legal Positivism. To the con-trary, it reveals the richness of that theory as few other cases can.Only if Elmer's Case is detached from the context of Anglo-American adjudication can it be said to undermine Legal Positivism.But then no theory of positive law could withstand its challenge.A draft of this essay was presented at a political theory workshop at the University of Chicago. I am grateful for comments received from Russell Hardin, Leo Katz, Steven Fletcher and Thomas Christiano on that occasion. I also thank Steven Walt and Jules Coleman, two of the better dressed philosophers I know.     

Stalemate in the States: Agenda Control Rules and Policy Output in American Legislatures

This article examines how the power of majority‐party leaders to set the legislative voting calendar influences policy change in American state legislatures. By generating an opportunity for party leaders to exercise gatekeeping or negative agenda control, such rules introduce an additional partisan veto player into a system of governance. This addition typically increases the size of the core or gridlock interval, which drives policy change downward. Using both traditional data on bill passage counts and new data on Affordable Care Act compliance, I find strong support for these claims. More specifically, when I calculate core sizes that are sensitive to agenda rules, I find that agenda‐control‐adjusted core size is negatively correlated with policy change, as expected. Moreover, even when I match states on their overall preference dispersion or polarization, the ability of party leaders to exercise negative agenda control is strongly negatively associated with policy change.     

Is harmonization of legal rules an appropriate target? Lessons from the global financial crisis

This article deals critically with the call for a comprehensive harmonization of legal rules, against the background of the lessons from the recent financial crisis. Before coming to the topic of harmonization of legal rules, it first briefly deals with the question of why rules are necessary at all, and what the functions of rules are. Then it deals with the lessons from the recent financial crisis for the topic mentioned. The article conducts a kind of cost-benefit analysis of legal harmonization by looking at arguments in favor of and against uniform rules. It shows that not only the arguments in favor have increased after the recent financial crisis, but also the arguments against. It also shows that integration of global markets has not only increased the need for new uniform rules but also decreased the chances of their implementation; and that therefore today it is often better to improve the implementation of current rules instead of laying down new uniform rules.     

The Common Core between Human Rights Law and International Criminal Law: A Structural Account

Legal scholars and theorists have recently drawn a more sustained attention to the link between international human rights law (hereafter IHRL) and international criminal law (hereafter ICL). This concerns both positive and more normative accounts of the link. Whether positive or normative, the predominant approach to constructing the link is substantive. This overlap is normatively justified in similar terms by reference to a subset of moral human rights. In this paper, I offer an alternative to the substantive approach. After identifying two flaws in the substantive approach (the problem of threshold and the problem of ethical neutrality), I defend what I call a structural account by focusing on duty‐holders. I start by reconstructing two structural characteristics common to IHRL and ICL qua international legal regimes: who has the authority to address violations of IHRL and ICL, and who can be liable for those violations. I then infer that public authority (functionally construed) constitutes the common structural core of IHRL and ICL. I rely on the extraterritorial application of IHRL and on the collective dimension of ICL violations to further support the argument. I finally offer an argument explaining the normative point of those structural features. I hold that IHRL and ICL (their adjudicative and liability regimes) are both necessary (but clearly not sufficient) to render this exercise of public authority legitimate to its subjects.     

What the ICJ did not say about the Duty to Punish Genocide: The Missing Pieces in a Puzzle

The article focuses on the legal implications of the constructionof the International Court of Justice (ICJ or the Court) ofthe duty to punish genocide under Article VI of the Conventionon the Prevention and Punishment of the Crime of Genocide inthe Bosnia and Herzegovina v. Serbia and Montenegro judgment.It posits that the Court's discussion of the duty to punishis satisfying in terms of what it says and less satisfying interms of what it is silent about. It is satisfying in the sensethat the Court's construction of the duty to cooperate withinternational tribunals prosecuting genocide as including aduty of extradition, seems to extend beyond the plain languageof the Convention and indeed beyond the parties’ originalintent. It is not fully satisfying because the duty to prosecuteremains quite limited. It is further argued that the obligationto punish genocide as established in Article I and the obligationto prosecute genocide as established in Article VI should beunderstood as two distinct obligations. Article VI merely setsthe institutional arrangements for prosecution. Other normativesources support the conclusion that a general duty to prosecuteperpetrators of genocide or extradite them for prosecution elsewhereapplies even in those cases where the offence was not committedin the territory of a contracting state or when the offenderis prosecuted by an international court that has jurisdictionover the state where the alleged perpetrator is found.     

An Examination of the NAIC White Paper Entitled “The Potential Impact of Climate Change on Insurance Regulation”

The battle between insurers and policyholders over coverage for climate change liability has already begun. Commentators have paid less attention to the positive role that insurers can play in coping with climate risk, or the negative impact should climate change liability create massive insurance insolvencies. The NAIC has now addressed these issues in its first White Paper on climate change. Everyone in the insurance industry must pay attention to the risks that the NAIC identifies, and the measures that it recommends.     

No Right to Classified Public Whistleblowing

Given the crucial role unauthorized disclosures can play in uncovering grave government wrongdoing, it makes sense to search for a defense of justified cases of what I call “classified public whistleblowing.” The question that concerns me is what form such a defense should take. The main claim will be a negative one, namely, that a defense of whistleblowing cannot be based on individual rights, be they legal or moral, though this is indeed the most commonly proposed defense. In closing, I will outline a more appealing alternative, namely, a justification defense.     

‘Multicolored’ green criminology and climate change’s achromatopsia

While green criminology may be an effective name or label for the sub-field or perspective within criminology that considers a wide range of environmental issues, it is, in reality, a ‘multicolored green’ – a criminology that engages a spectrum of issues, that reflects the interests of some racial groups more than others, that reveals and analyzes environmental harms which disproportionately impact some racial groups more than others, and that can be approached from a number of vantage points or that can be viewed with variously tinted lenses. This article begins with an overview of climate change, including a discussion of its anticipated impacts and indicators of its already-being-felt effects. It then offers some general comments on the disproportionate impact of environmental threats and harms before turning to a discussion of the present and anticipated distributional impacts of climate change. Here, this article argues that climate change is, in effect, achromatopsic – it is color-blind, in that it affects us all regardless of skin color – but that those impacts will be distributed unevenly/unequally and that various groups are and will continue to be in different positions to adapt to climate change. This article concludes by suggesting that while the environmental harms caused by climate change are real – and the risks and threats they pose tangible and serious – climate change presents an exciting challenge for our creative potential as humans. In the process of reducing our consumption of fossil fuels and stabilizing (or, better yet, reducing) our greenhouse gas emissions, we might better assist those geopolitical regions most at risk (i.e. poor, developing countries) to become more resilient – an approach that is necessary for both the physical health of the planet and the prospects for social justice.     

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.