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Rethinking Force Majeure in Public International Law
Get PDFClimate change is one of today’s most significant and complex problems. The number and level of severity of extreme weather events is increasing rapidly around the world. One year after the next, we learn that heat records have been broken once again. Climate change has been traced to a wide range of severe problems around the world, ranging from the obvious damage caused by hurricanes, floods, extreme rainfall, prolonged droughts, wildfires and a host of other weather-related issues to the perhaps less obvious such as physical and mental illnesses, “civil unrest, riots, mass migrations and perhaps wars caused by water and food shortages.” “It is no longer rationally debatable that climate change will take a huge toll on human health and prosperity as well as pose significant risks to national security if it is not curbed.”
This Article proceeds as follows: The history of the excuse doctrines that could and are applied in the context of “severe weather” will be briefly described to create a view of current law in the light of its development over time. Similarly, the traditional legal distinction between “man” and “nature” will be examined as this differentiation, at worst, no longer makes sense in relation to climate change and, at best, is one without significance. Because this article solely addresses the excuse doctrines that may apply to legal liability on nation states in the climate change context, the Paris Agreement on climate change (the “Agreement”) becomes relevant as it would have been fair and equitable to apportion loss and damage under this Agreement. However, as the Agreement explicitly states that developed nations will not be liable for loss and damage under the treaty provisions, the article will proceed to analyze alternative theories of nation state responsibility for internationally wrongful acts. Finally, the article critiques the modern potential applicability of these doctrines for reasons of law and public policy
The Road to a Constitutional Convention: Reforming the New York State Unified Court System and Expanding Access to Civil Justice
Get PDFThis article will focus on the judiciary reforms and access to justice—starting with reforms to the structure of the Unified Court System and discussing other ways that a constitutional convention might serve to improve the operation of the courts. The article will then explore the state’s deficiency in providing its low-income citizens access to justice in civil matters relating to housing, family safety and security, and subsistence income, and how a convention can highlight these issues
Trust Me, I\u27m a Pragmatist: A Partially Pragmatic Critique of Pragmatic Activism
Get PDFPragmatism is a robust philosophy, vernacular hand waiving, a method of judicial and administrative decisionmaking, and, more recently, justification for a certain type of political activism. While philosophical, judicial, and administrative pragmatism have garnered substantial attention and analysis from scholars, we have been much stingier with pragmatic activism — that which, in the spirit of the 21st Century’s 140-character limit, I will call “pragtivism.” This Article is intended as an introduction to pragtivism, a critique of the practice, and a constructive framework for addressing some of my critiques.
To highlight the contours of pragtivism, this Article tells the story of the Dunes Sagebrush Lizard. In 2010 the United States Fish and Wildlife Service proposed to list the imperiled Lizard under the Endangered Species Act. In record time, the State of Texas, the Texas Oil and Gas Association, and other stakeholders developed a conservation plan for the lizard. FWS approved the plan and as a consequence agreed to withdraw its proposed listing. In March 2016 the Court of Appeals for the D.C. Circuit upheld the non-listing.
The Texas Plan and the D.C. Circuit decision are results of “innovative” environmentalism, which relies on “flexible,” “collaborative,” “cooperative,” “voluntary,” “pragmatic” “partnerships” to achieve “win-win solutions.” But does this pragtivist boasting undermine more critical dialogue and more effective environmental protection? Does it trample on an intentional and well-reasoned structure of traditional environmental law? Is it actually pragmatic in the philosophical sense? This Article is a first attempt to answer some of these questions and to generate more analysis of the influence of pragmatism on environmental activism. It begins with a taxonomy of pragmatism in law and policy, details the Lizard’s story as a case study, offers a critique of pragtivism as a method of environmental protection, and concludes by offering a framework that might improve the use of pragtivism if the practitioners are truly willing to be pragmatic
EVA: An Indicator of Corporate Bankruptcy?
Get PDFEconomic value added (EVA) analysis is one of the most common methods to evaluate company’s performance in terms of value creation, which involves ROIC (Return on Invested Capital) and WACC (Weighted Average Cost of Capital) as key drivers. Past studies evaluate the superiority of EVA over other measures of performance and relationship between EVA and stock returns. This paper analyzes the relationship between EVA and bankruptcy on 373 public traded companies in U.S. of which 178 companies filed for bankruptcy between the year of 2015 to October 2017. We present descriptive statistics, conduct univariae grouping tests and correlation between ROIC, WACC, NOPAT, and EVA, and logistic regression analysis for each sector. The results show that non-bankrupt firms tend to have higher WACC (compared to relative very low and negative WACC of bankrupt companies), higher NOPAT, and higher ROIC. EVA has correlation with bankruptcy but its significant level varies across sectors. The findings also suggest that WACC is another good indicator of bankruptcy
Sex Quotas and Burkini Bans
Get PDFThis Essay recounts how feminist theorists and activists managed to write their ideals into the fabric of French law and culture, and how nonfeminists began to appropriate those ideals. Parité, the 2000 law that requires half of all candidates for public office be women, saw French feminists first engineer a change in French universalism to respect sex difference; although not wholly successful, Parité advanced women\u27s political inclusion. Then, like a drop of water in a pond, these feminist ideas disappeared in plain sight: they became intrinsic to French state norms and public values. As they became woven into such norms, however, politicians began to use them to promote exclusions: first excluding Muslims from full participation in the Republic with veil and burqa bans, then supporting exclusions of sex and class with a corporate board quota (CBQ). Most recently, feminist ideas have been called upon to exclude French Muslims with proposed burkini bans
When Does Sex Diversity on Boards Benefit Firms?
Get PDFFirms embrace diversity, especially with regard to sex. Overtly optimistic predictions of a diversity dividend, some built on sex stereotypes, lead these firms to count on profits that may never materialize. This Article attempts to reset the agenda on how to study corporate board diversity. We can only assess if and how sex diversity yields benefits by understanding the who, what, and where of diversity. Whether sex diversity produces a diversity dividend depends on three key factors: ( 1) the nature of the benefit of including women (whether for their experience or other qualities); (2) the kind of firm and its governance; and (3) the jurisdiction(s) in which the firm operates. Only by further investigating the precise conditions under which diversity will have an effect can we estimate the potential instrumental benefits of sex diversity
The Uberization of Arbitration Clauses
Get PDFIn the early part of this decade, the Supreme Court’s decisions interpreting the Federal Arbitration Act (FAA) strictly enforced predispute arbitration clauses (PDAAs) with class action waivers and so-called “delegation” provisions in consumer contracts. Just after the Court’s 2013 ruling that clauses with class action waivers did not prevent claimants from vindicating their statutory rights, Uber— a company at the heart of the “gig economy”—started inserting PDAAs in agreements with its drivers and passengers. Uber’s move has generated dozens of challenges to its clause in lawsuits across the country, and thus dozens of federal court opinions contributing to modern FAA jurisprudence. This article will focus on those opinions, extracting lessons from the multitude and variety of challenges to Uber’s clause. This article concludes by noting that Uber’s rapid and worldwide development of a cheaper and more efficient yet controversial mode of transportation parallels the growth in companies’ use of “forced” arbitration clauses to facilitate a cheaper and more efficient yet controversial mode of resolving disputes
An Approach for Designing Secure and High Performance Cloud Systems
No full textRecent expansions of cloud computing have been growing at a phenomenal rate. Security and privacy issues have become a considerable issue while the applications of big data are growing dramatically fast in cloud computing. However, there exists a contradiction between ensuring a high performance and achieving a high-level security and privacy protection due to the restrictions of the computing resources, based on the findings of the literature review. This study focuses on this contradiction issue and intend to develop an approach of effectuating the cloud system design for a high-level security and privacy protection while acquiring a high performance. The work consists of four research tasks that support the solution to the proposed problem. They are (i) designing a Optimal Fully Homomorphic Encryption (O-FHE) mechanism that can both avoid noise and execute efficiently; (ii) designing a privacy-preserving data encryption strategy while considering efficiency; (iii) developing an approach of the data analytics manager system for in-memory big data analytics; (iv) designing an adaptive energy-aware data allocation approach for heterogeneous memory and creating an efficient data allocation approach for cloud-based heterogeneous memory. The research implements experimental evaluations to examine the performance of the proposed approaches. The main contributions of this study address three aspects. First, this study has proposed an O-FHE method that is different from all approaches proposed by the prior researches. Second, this study addresses the contradiction between the data security and system performance and presents a privacy-preserving strategy for secure data transmissions in cloud systems. Finally, this study attempts to increase the computation efficiency by enhancing the functioning of hardware, more specifically, using heterogeneous memory and in-memory data analytics