Harvard Law School

Climate change affects everyone’s health. At the same time, because of specific risk factors, some groups have a greater chance of becoming sick as a result of climate change than others. Evaluating these inequitable impacts through a health-centric intersectional approach—which considers overlapping factors like gender, age, residence, and prior health status—reveals significant health risks often overlooked in current human rights based cases. While the climate change litigation movement is thriving, evidence-based intersectional health risks remain surprisingly underexposed. This Article argues that a health-centric intersectional approach to climate change cases can enhance accountability for the impacts of climate change. We demonstrate the advantages of this approach in relation to two climate change cases recently decided by the European Court of Human Rights: Verein KlimaSeniorinnen v. Switzerland and Duarte Agostinho v. Portugal and 32 other States. We further show that a health-centric intersectional approach could avoid certain procedural and substantive pitfalls while responding more readily to climate-related health inequity.

The exclusionary rule has long been misunderstood. Scholars and judges perceive it as addressing police officers, warning them that evidence obtained in an unconstitutional search or seizure may be inadmissible in court. But officers typically care little about the ultimate conviction of suspects (as opposed to their arrest) and are therefore minimally deterred by possible suppression of evidence. Even when officers want to prevent suppression, they often do not know the complicated search and seizure rules and do not receive adequate training about them. This Article argues that the exclusionary rule’s deterrent benefits can be better appreciated and realized when understanding the rule as directed primarily to prosecutors, not to police officers. As prosecutor-oriented, the rule promotes lawful policing indirectly, by stimulating prosecutors to proactively encourage local police to adhere to the law. Unlike police officers, prosecutors do fear for the fate of their criminal cases and are therefore motivated to prevent police wrongdoing that could jeopardize them. Prosecutors are also experts on the rules governing searches and seizures in their jurisdiction and know best how to avoid triggering the exclusionary rule. Finally, prosecutors can (and do) positively influence police behavior, despite their lack of formal authority over them. Although many prosecutors around the country have employed various methods to promote lawful policing, others have remained passive. To realize the full deterrent potential of the prosecutor-oriented exclusionary rule, this Article proposes a three-pronged approach consisting of measures grounded in doctrine, politics, and legal ethics.

This study examines the debt markets’ response to mandatory CSR as prescribed by the Indian Companies Act 2013. Implementing this rule results in a 43 basis point increase in yield spreads for compliant firms, counteracting the Act’s debt-reducing provisions. The upsurge is attributed to the negative impact of mandatory CSR on expected cash flow. Leveraging a generative artificial intelligence (AI) model, the analysis distinguishes between mandatory CSR governance and expenditure. The former modestly boosts the issue-to-sales ratio by 1.2%, while the latter significantly drives the rise in yield spreads, illuminating the complex effects of mandatory CSR on debt market behavior.

West Virginia v. Environmental Protection Agency is the Supreme Court’s most important administrative law decision in decades. The opinion’s significance is due principally to the Court’s embrace of an aggressive version of the so-called “major questions doctrine” (MQD), which appears to require unusually explicit statutory authorization before agencies may undertake “major” regulatory actions. The West Virginia Court claims that this strong MQD is based on longstanding precedent, and that its use has salutary effects on the policymaking process. Neither claim is accurate. In Part I of this Article, we show that the strong version of the MQD embraced by the West Virginia Court is in fact relatively new; the extent of the doctrinal innovation is obscured by the fact that the MQD label has been unhelpfully attached to several related but distinct interpretive techniques, which we disentangle. In Part II, we turn to the impact of this new MQD on the policymaking process, focusing in particular on democratic accountability. While the MQD’s proponents claim that this doctrine protects separation-of-powers principles and the prerogatives of Congress, in fact the new MQD is more likely to weaken democratic accountability by shifting power from the elected branches to the courts, undermining transparency, and exacerbating the already excessive tendency toward minoritarian obstruction in Congress. The West Virginia Court’s aggressive MQD would likely have other effects; perhaps most importantly, this version of the MQD makes it much more difficult for the federal government to address new problems under broadly worded statutes. Both the MQD’s supporters and its detractors anticipate that the doctrine will result in less, and less aggressive, federal regulation. For purposes of this Article, though, our critique of the MQD focuses less on its impact on policy outcomes (though we think this is very important), and more on the impact of the MQD on the policymaking process, especially the extent to which the MQD makes that process less democratic.

In “Duties to Try and Duties to Succeed,” Stephen Smith distinguishes two types of duties one might find in areas of private law such as contracts and torts: (1) duties to succeed (such as a duty not to trespass on another’s land), and (2) duties to try (such as a duty to try not to injure another through careless conduct). Smith argues that these types of duty differ not only in their structure, but in the standards of conduct they support (strict liability versus fault), the nature of the wrongdoing involved when those standards are breached (setbacks to rights or interests versus displays of disrespect), and the kind of liability they generate (damages that involve the duty-bearer doing the next best thing to heeding her duty to succeed versus damages that restore formal equality given the disrespect that is displayed by the breach of a duty to try). Finally, he concludes that, because Anglo-American private law grew haphazardly out of the writ system, it contains both types of duties yet lacks a coherent account of which duties apply or should apply to which conduct and which injuries.

Building on Smith’s highly illuminating treatment while also pushing back against his somewhat skeptical conclusion, our contribution to this volume will argue that there is a way for private law to combine aspects of duties to try and duties to succeed into what we call “qualified duties of noninjury.” In developing this claim, we re-examine Brown v. Kendall, 60 Mass. 292 (1850), a crucial decision that helped mark U.S. private law’s move away from the writ system by recognizing and defining the modern tort of negligence. Close attention to Chief Justice Shaw’s reasoning in Brown, we argue, will show that, at the center of negligence law, and indeed all of tort law, are qualified duties of noninjury, i.e., duties that have both a conduct element and an injury element.

On December 9, 2022, the United Nations Security Council adopted resolution 2664 (2022), laying down a limited, standing humanitarian-related “carve-out” from Council-decided asset freezes. The resolution warrants close attention from U.N. Member States. That is not only due to the resolution’s consequential character. It is also because the core obligations arising from it are notably complex and raise correspondingly intricate issues concerning interpretation and implementation.

In this interpretive note for the Harvard Law School Program on International Law and Armed Conflict, Radhika Kapoor, Dustin Lewis, and Naz Modirzadeh seek to support U.N. Member States’ initial efforts to understand and implement certain key aspects of the resolution, especially the humanitarian-related “carve-out” at its center. As explained in the interpretive note, U.N. Member States bear principal responsibility for carrying out the legal mandate entailed in resolution 2664 (2022). Those States will, as a minimum, need to review and, as relevant, make adjustments to their national legal systems and any multi-State legal arrangements to which they belong, such as a regional organization. Further, members of the Security Council will need to evaluate the implications of the resolution with respect to each of the affected sanctions regimes and take the action warranted to address those implications. U.N. Member States may also take action to support those responsible for the briefings (the U.N. Emergency Relief Coordinator) and the report (the Secretary-General) requested by the Security Council.

Over the last ten years, Oosterhof and Todorov’s valence-dominance model has emerged as the most prominent account of how people evaluate faces on social dimensions. In this model, two dimensions (valence and dominance) underpin social judgments of faces. Because this model has primarily been developed and tested in Western regions, it is unclear whether these findings apply to other regions. We addressed this question by replicating Oosterhof and Todorov’s methodology across 11 world regions, 41 countries, and 11,570 participants. When we used Oosterhof and Todorov’s original analysis strategy, the valence-dominance model generalized across regions. When we used an alternative methodology to allow for correlated dimensions we observed much less generalization. Collectively, these results suggest that, while the valence-dominance model generalizes very well across regions when dimensions are forced to be orthogonal, regional differences are revealed when we use different extraction methods, correlate and rotate the dimension reduction solution.

The Supreme Court has repudiated Bivens on the grounds that it arrogated legislative power to the federal judiciary. As the Court steps back, Congress is free to undo what remains of Bivens or strengthen it. So can the States. Much like they did at common law, the States can supply the cause of action that the federal judiciary cannot. Specifically, as things stand now, States are free to arm their citizens with a cause of action for damages against federal officers who violate their federal constitutional rights. Federalism principles do not stand in their way. Nor does Supreme Court precedent. Nor does the Westfall Act.

Moreover, these state causes of action need not cloak federal executive officials with any particular set of immunities. Federal courts would lack the necessary authority to craft immunities as a matter of federal common law. There’s no special federal concern in protecting federal officials who take actions unauthorized by federal law. And federal law may not authorize any federal official to violate federal constitutional rights. Statutory authorization to craft immunities would likewise be lacking. The immunities the Supreme Court has crafted under Bivens are unique to Bivens actions. When federal courts create a cause of action, they may fill in the gaps by providing statutes of limitations, burdens, and crucially, immunities. But federal courts will not have created converse-1983 actions, and there will be no gaps to fill. If converse-1983 is to fall, it must fall at the hands of Congress — not the federal courts.