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Learning to Live with the Trickster: Narrating Climate Change and the Value of Resilience Thinking
Get PDFThis article is based on the 2015 Pace Garrison Lecture that occurred on April 1, 2015. Fittingly for a talk given on April Fool’s Day, this article focuses on tricksters. It posits that framing climate change as one incarnation of a mythological trickster can give us a better cultural narrative framework for thinking about environmental, natural resources, and energy law and policy in a climate change era. The trickster narrative can helpfully displace the dominant engineering framework that informs most of American10 environmental, natural resources, and energy law and policy and open the way to a more productive policy context based on ecological resilience and resilience thinking.
Part I of this article will examine the general importance of cultural narratives to society and law. Part II, in turn, examines the narrative that has dominated U.S. environmental and natural resources law and policy since the middle of the 20th century, a narrative that this article refers to as “Humans as Controlling Engineers.” In Part III, this article examines the cultural narratives that have emerged in the United States to date as responses to climate change, concluding that they all either continue the “Humans as Controlling Engineers” narrative into a climate change era or promote human helplessness (and hopelessness) in the face of climate change impacts. A much better cultural narrative, Part IV argues, is the narrative of the trickster—a narrative that has been unusually (compared to the rest of the world) but emphatically missing from European-derived American culture. Viewing climate change as the 21st-centure trickster would not only help Americans to contextualize the many complexities of climate change but would also help to create a cultural context that can promote resilience thinking and the unavoidable necessity of transformation, both social and ecological
3D Printing and Healthcare: Will Laws, Lawyers, and Companies Stand in the Way of Patient Care?
Get PDFToday, our society is on a precipice of significant advancement in healthcare because 3D printing will usher in the next generation of medicine. The next generation will be driven by customization, which will allow doctors to replace limbs and individualize drugs. However, the next generation will be without large pharmaceutical companies and their justifications for strong intellectual property rights. However, the current patent system (which is underpinned by a social tradeoff made from property incentives) is not flexible enough to cope with 3D printing’s rapid development. Very soon, the social tradeoff will no longer benefit society, so it must be re-evaluated to facilitate the coming of the next generation in medicine
Class Certification Issues: In Re: National Football League Concussion Injury Litigation
Get PDFThis paper will discuss whether the prerequisites of the Federal Rules of Civil Procedure, Rule 23, were properly applied in the certification of the class in the NFL Concussion Injury Litigation, with an emphasis on typicality. Discussion will begin with the general rule of class actions and drafter’s intent when the rule was enacted. It will then discuss the major amendment to the rule and the purpose of the amendment with a focus on typicality, and clarify the standard for the typicality requirement with a discussion of the United States Supreme Court decision in Amchem v. Georgine. The discussion then narrows the application of typicality with the Third Circuit’s Baby Neal test. It discusses the Eastern District Court of Pennsylvania’s misapplication of typicality with an analysis of where the court erred. A brief comparison between the class action of Amchem and the NFL Concussion Injury Litigation is also discussed.
In closing, the paper concludes with a summation of the writer’s analysis of the District Court’s holding
Between Light and Shadow: The International Law Against Genocide in the International Court of Justice’s Judgement in Croatia v. Serbia (2015)
Get PDFThis Article identifies and critically analyzes the contributions the International Court of Justice (ICJ) made to the international law against genocide via the judgment in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) of February 3, 2015. This Article elaborates on the concept of genocide—a term that has originally been coined after the Armenian Genocide and the Holocaust—and the protection against this “crime of crimes” under international law. The analysis section of this Article refers to the historical and procedural context of the dispute between Croatia and Serbia in the case, which originates from the violent conflict between the two states following the dissolution of the former Socialist Federal Republic of Yugoslavia (SFRY). The main section of this Article criticizes the most important aspects of the ICJ’s judgment, especially the Court’s assessment of the constituent elements of genocide, the objective and the subjective components, while also taking into account the ICJ’s prior judgment in the Bosnian Genocide Case of 2007. The Article concludes that the ICJ’s reasoning is in line with its prior judgment. However, the Article criticizes that the Court has missed opportunities to clarify on questions of jurisdiction and of its relationship with International Criminal Tribunals. It also failed to shed light on the interpretation of the crime of genocide as an international wrongful act of states with respect to many important and highly controversial issues, thus missing the opportunity to establish clearer guidelines for many disputed aspects in the determination of genocide in future disputes
Enhancing Academic, Personal, Social, Civic and Cultural Developmental Outcomes Among High School Youth: The Role of International Service Learning
No full textThere a large body of research that examines the benefits of International Service Learning (ISL) and Domestic Service learning (DSL). However, there is gap in understanding the impact that ISL can have on high school youth and furthermore, the comparison of domestic and international and service learning. This study assessed the role that an ISL program plays in enhancing developmental outcomes (academic, personal, social, civic, and cultural) for student participants. It also explored whether internal resources (community service self- efficacy), external resources (perceived social support), and program variables (perceived level of training and opportunities for reflection) alter the strength of the proposed outcomes. A group of students who went on an ISL trip (experimental group) was compared to a sample of students enrolled in an afterschool program and engaged in local community service (control group). The participants in the study were all high school students involved with BuildOn\u27s afterschool program (a nonprofit agency that aims to empower high school youth through domestic and international community service). Students in the program can choose to engage in an ISL experience called Trek where they receive training and education prior to spending two weeks living in a rural community in a developing country building a school for the members of the community. Surveys were administered to the control and experimental groups at the start of the Trek process and again at the end. It was hypothesized that students who went on Trek would have greater gains in all developmental outcomes measured than those who did not go on Trek. Statistical analyses revealed that the group who did not go on Trek had a greater change in self-efficacy, civic action, intercultural competence, and community service self-efficacy than the Trek group. However, the Trek group started off with significantly higher scores in all outcomes to start. While social behavior did not change significantly more in either the Trek or Non-Trek group, it was found that those who started with higher levels of perceived social support were likely to have a greater change in social behavior than those with medium and low levels of social support. Furthermore, those who perceived the training and level of institutional support as high were more likely to have Beater gains intercultural competence. The hypotheses that the Trek group would show Beater gains in developmental outcomes than the Non-Trek group were not supported. The lack of change was likely a reflection of the lack of random assignment, the minimal room for growth among the Trek group, and the outcomes measured. These findings supported previous research that domestic services learning increases personal and civic outcomes. Furthermore, the current study shows that students who seek out ISL experiences are much higher in all developmental outcomes to start suggesting that alternative constructs should be measured to understand the true impact of ISL
Waiving Jurisdiction
Get PDFThis Article explains why courts treat subject-matter jurisdiction as sacrosanct, demonstrates why this reaction is unwarranted, and advocates that, in cases like Kroger, a defect in the district court’s subject-matter jurisdiction should be deemed waived if not raised before trial begins or any adjudication is made on the merits.
This Article proceeds in four parts. Part I briefly reviews why the current system of strong rhetoric, riddled with myriad exceptions, is cumbersome, confusing, and unnecessary. Part II examines other structural constitutional doctrines that courts have nonetheless deemed waivable: mootness, sovereign immunity, and territorial conceptions of personal jurisdiction. In Part III, the Article explores why these other doctrines provide justifications for the waivability of constitutional subject-matter jurisdiction. Finally, Part IV demonstrates how this new proposal could extend beyond jurisdiction to other justiciability doctrines and statutory prerequisites to suit
In Memory of Monroe Freedman: The Hardest Question for a Prosecutor
Get PDFI’ve chosen to honor Monroe Freedman’s iconic essay on the hardest questions for a criminal defense attorney by posing the same question for prosecutors. What is the hardest question for a prosecutor? This in itself is a hard question. The thousands of federal, state, and local prosecutors in the country would likely give widely varying responses – discretionary charging, immunity grants, bargained pleas, unreliable witnesses, police testimony, and disclosure duties, for starters. Too, prosecutors are not a generic group. Just as some defense lawyers might recoil or be indifferent to Freedman’s provocative thesis, so might many prosecutors reject or be indifferent to what I propose is the hardest question for them.
For prosecutors, the hardest question they face is whether the person they are prosecuting is actually innocent. Nobody except the accused really knows the answer to that question, certainly not the prosecutor, however strongly he may believe in the defendant’s guilt and the credibility of the proof
Regulating Ammonium Nitrate Fertilizer Under the General Duty Clause
Get PDFThis Article explores how the Clean Air Act’s (CAA) general duty clause can be utilized to prevent catastrophes such as the explosion in West, Texas.
Part II of this Article describes the dangers associated with ammonium nitrate. More specifically, it looks at prior accidents to understand the magnitude of these unanticipated explosions. Part III looks at our current approach to regulating ammonium nitrate fertilizer and the shortcomings of this regulatory regime. Part IV provides an overview of the CAA’s general duty clause. Furthermore, it describes how the general duty clause can be applied to ammonium nitrate fertilizer facilities and the corresponding obligations imposed upon these facilities
An Analysis of In-house and Offshore-outsourced Software Development Projects Utilizing Waterfall versus Agile Methodologies: A Simulation Study
No full textSoftware is an integral part of each and every business model, whether it is banking, manufacturing, insurance, hospitality, aviation, education, healthcare, social networking or any other domain. The design and development of any software system can require significant investments in capital, time, domain expertise, tools and infrastructure. Despite improvements in the software industry over the past decades, the percentage of software failures has also increased, which led to loss of capital, time and information. Software development projects continue to fail due to the use of ineffective development and management processes, commonly found in waterfall-like development, that inject faults into various stages of the software development life cycle. Repeated use of a development process that does not produce software that performs as intended can impose serious problems on a software development project. Hence, it is essential that organizations employ a consistent and adaptable process that allows for the creation and delivery of quality software that satisfies customer’s expectations. Such a process offers a framework that could help to plan new projects, avoid repeating the mistakes of past projects, and improve on successful elements. Traditional, sequential development methodologies such as waterfall differ from later adaptive and iterative methods like agile. Many of the practices of traditional methods are not effective in software development projects created today. However, because of their failure to accept this reality, many organizations continue to use software development processes that do not produce desired results. Still, today popular belief is that offshore development is the ‘fix’ for in-house or onshore project problems. This dissertation analyzes in-house and offshore- outsourced software projects utilizing waterfall versus agile development to identify the real determinants of the problems. It concludes with an agile simulation of the problems to show the difference had the projects been done in an agile manner. The study will provide useful insights that can be adopted to institute an effective software development process that produces successful, high quality software that can be used
City Sustainability Reporting: An Emerging & Desirable Legal Necessity
Get PDFThis article will begin with a brief history of sustainability reporting, including recent developments related to its adoption by cities. The author will then review two major trends that, considered together, indicate sustainability reporting should be viewed as an emerging legal necessity for municipalities in the United States. First, the exemption shielding cities from the disclosure requirements of securities laws has eroded. Second, sustainability disclosures now fit the definition of what must—as a matter of materiality, if not specific mandates—be reported to investors. This means that the cities that have collectively issued over $3.67 trillion in securities2 should all be disclosing sustainability data. The author concludes that this emerging legal requirement is in the interest of all stakeholders and is pragmatic public policy