Wrongful Benefit & Arctic Drilling
50 U.C. Davis Law Review 1845 (2017)
65 Pages Posted: 8 Oct 2016 Last revised: 3 Jun 2017
Date Written: October 6, 2016
The law contains a diverse range of doctrines — “slayer rules” that prevent murderers from inheriting, restrictions on trade in “conflict diamonds,” the Fourth Amendment’s exclusion of evidence obtained through unconstitutional search, and many more — that seem to instantiate a general principle that it can be wrong to profit from past harms or misconduct. This Article explores the contours of this general normative principle, which we call the wrongful benefit principle. As we illustrate, the wrongful benefit principle places constraints both on whether anyone should be permitted to exploit ethically tainted goods, and who may be permitted to profit or otherwise benefit from past wrongful or harmful conduct. We test the boundaries of the principle by examining its application to the pressing and complex case of Arctic drilling. The burning of fossil fuels and the resulting melting of Arctic ice have, ironically, opened access to oil fields in the Arctic that were previously inaccessible. In our view, the historical cause of this opportunity is normatively significant to questions about what oil extraction should be permitted in the Arctic in the future. We conclude by suggesting the kind of legal responses — both domestic and global — that can incorporate the wrongful benefit principle.
Keywords: wrongful benefit, Arctic Drilling, climate change, fossil fuels, slayer rule, tainted goods, conflict diamonds, Arctic Council, keep it in the ground, business ethics
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