2017, Vol. 112, No. 2
Climate change, as the dominant paradigm in natural resource policy, is obsolete and should be replaced by the water security paradigm. The climate change paradigm is obsolete because it fails to adequately resonate with the concerns of the general public and fails to integrate fundamental sustainability challenges related to economic development and population growth. The water security paradigm directly addresses the main reasons climate change ultimately matters to most people—droughts, floods, plagues, and wars. Additionally, this new proposed paradigm better integrates climate change concerns with other pressing global sustainability challenges—including that economic development and population growth will require 50% more food and energy and 30% more water by 2030 regardless of climate change. The water security paradigm orients all natural resource policies toward achieving a sustainable quantity and quality of water at acceptable costs and risks. Water security improves upon the climate change paradigm in several ways: it (1) replaces carbon footprints with water footprints as the metric for sustainability monitoring and reporting, (2) restructures natural resource governance at the watershed level with regional, rather than hierarchical, leadership, (3) integrates security and public health concerns into natural resource policies, (4) encourages investment in infrastructure for drought and flood resilience, and (5) facilitates the sustainable implementation of human rights.
This Article provides a framework for analyzing side agreements among stakeholders in corporate bankruptcy, such as intercreditor and “bad boy” agreements. These agreements are controversial because they commonly include a promise by a stakeholder to remain silent—to waive some procedural right they would otherwise have under the Bankruptcy Code—at potentially crucial points in the reorganization process.
Using simplified examples, we show that side agreements create benefits in some instances. But, in other cases, parties to a side agreement may attempt to extract value from nonparties to the agreement by contracting for specific performance or excessive stipulated damages that impose negative externalities on those nonparties. By using more extreme (and inefficient) remedies, the parties to the agreement can commit themselves to charging more to nonparties who—seeking to avoid the externalities—pay them to breach the agreement. While this can be profitable for the parties to the agreement, it can also lower the collective value of the estate for all stakeholders.
We develop a proposal that not only preserves the efficiency benefits of side agreements but also limits negative externalities and opportunities to extract value from nonparties. Where a nontrivial potential for valuedestroying externalities exists, the court should enforce the agreements but limit the remedies for breach to expectation damages. Our proposal is superior to the current approach in the case law, which focuses on tougher contract interpretation standards instead of limitations on remedies.
We also use our model to determine whether intercreditor agreement disputes should be resolved by the bankruptcy court or by other courts. If the nonbreaching party asks for expectation damages, the bankruptcy court has no particular expertise and should defer to forum selection clauses. Where the nonbreaching party seeks specific performance or stipulated damages, by contrast, our model suggests that the dispute should be resolved exclusively in bankruptcy proceedings.
Notes & Comments
Why was there so much activism in the United States, and across the world, to end the tampon tax in 2016? This Note situates the movement to end the tampon tax within a broader history of feminist activism related to tampons and menstruation. It also analyzes the constitutional dimensions of the tax on feminine hygiene products and serves as a litigation guide for plaintiffs claiming that a state, city, or county sales tax on feminine hygiene products violates the Equal Protection Clause. Lastly, this Note demonstrates the hardships women face paying this tax and encourages state legislatures and city councils to create an exemption for feminine hygiene products in their respective tax codes.
Human Trafficking and Pornography: Using the Trafficking Victims Protection Act to Prosecute Trafficking for the Production of Pornography
The Trafficking Victims Protection Act of 2000 (TVPA) was passed to “combat trafficking in persons, a contemporary manifestation of slavery whose victims are predominantly women and children, to ensure just and effective punishment of traffickers, and to protect their victims.” Since the passing of the Act, federal courts have construed the statute broadly to achieve this stated purpose. One way in which the TVPA has been underutilized, however, is in prosecuting pornography cases. Pornography enjoys wide latitude under the law, protected by a vast net of First Amendment protections. While these protections may preserve freedom of speech, they do nothing to protect adult victims who are trafficked to produce online pornographic media. To provide relief for these victims and better fight all types of domestic trafficking, prosecutors should use the sex trafficking provision of the TVPA, 18 U.S.C. § 1591, to prosecute sex trafficking within the pornography industry. The pattern of victimization, other national and international human trafficking directives, plain language of the TVPA, prior cases, and broader policy goals all support the argument that the TVPA can and should be used to address the problem of trafficking adult victims for the production of porn.
When does a state have standing to challenge the Executive Branch’s alleged underenforcement of federal law? The issue took on importance during the Obama Administration, with “red states” suing the Executive Branch over numerous issues, including immigration and health care. The question of state standing has already appeared in important litigation during the first months of the Trump Administration, only with the political orientation of the actors reversed.
This Article argues in favor of sovereign preemption state standing, under which a state would enjoy Article III standing to sue the federal government when (1) the federal government preempts state law in an area, yet (2) the Executive Branch allegedly underenforces the federal law that Congress enacted to address that very same area. Sovereign preemption state standing arises naturally out of the function of states in the federal system. It is grounded upon parens patriae injury—that is, injury to the state’s ability to protect its citizens against harm. The federal government can properly preempt state law, on the logic that it then assumes from the state the obligation to protect the state’s citizens from harm. Where the Executive Branch then fails adequately to enforce federal law, it leaves the state’s citizens unprotected. The state then has Article III standing to sue the federal government on behalf of its citizenry.
The universe of cases where sovereign preemption state standing operates is not large, which should assuage concerns over opening the floodgates of state–federal litigation. Moreover, prudential doctrines can be overlaid such that more cases would be screened out. Although sovereign preemption state standing could conceivably extend to Executive Branch overenforcement, such an application would not square with the functional justification for the doctrine.