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Environmental Justice as Environmental Human Rights
No full textFor many years, the environmental justice movement in the United States and the evolution of international human rights law concerning the environment have pursued parallel but separate paths, only occasionally noting that they share common concerns. This Article seeks to build a stronger bridge between them, in three ways.
First, it presents the most detailed restatement of environmental human rights law yet published. International human rights bodies have developed a robust environmental jurisprudence setting out concrete obligations on States, including procedural obligations to provide public access to environmental information, decision-making, and remedies, substantive obligations to adopt and enforce effective environmental regulations, and obligations to prevent environmental discrimination.
Second, the Article provides the first systematic evaluation of the United States in light of that jurisprudence. The United States has elements of a strong environmental framework, but it also has a number of shortcomings and one gigantic gap: the failure to effectively address the disproportionate environmental burdens placed on African Americans and other racialized minorities. The US government has paid lip service to environmental justice in principle, but it has failed to reform its laws, or use the ones it has effectively, to address environmental discrimination in practice.
Third, the Article explains that, even though US courts are not open to environmental human rights claims, international human rights bodies are. Advocates could more frequently ask regional human rights commissions, human rights treaty bodies, and UN special rapporteurs to examine US failures to meet international obligations, especially obligations to prevent and redress environmental discrimination and to respect the land rights of Indigenous peoples. Although the decisions and reports of these bodies are not legally binding, they can still complement and support domestic efforts to achieve environmental justice.
In short, the quest for environmental justice is also a quest to bring the United States into compliance with environmental human rights law. Recognizing the connections between them can help in the struggle for both
Free Speech for Me but Not for Airbnb”: Restricting Hate-Group Activity in Public Accommodations
Get PDFAs digital services grow increasingly indispensable to modern life, courts grow inundated with novel claims of entitlement against these platforms. As narrow, formalistic interpretations of Title II permit industry leaders to sidestep equal access obligations, misinformed interpretations of First Amendment protections allow violent speech and conduct to parade uninhibited. Within the mistreatment of these two established doctrines lies a critical distinction: the former is in desperate need of modernization to fulfill its original intent, and the latter is in desperate need of restoration for the same ends. This climate creates conditions ripe for doctrinal upheaval. This Note considers how the rising digital accommodation challenges traditional legal frameworks, particularly as hate groups exploit these new public squares. Analyzed through the lens of Airbnb—its role as a modern public accommodation, its prior experiences with invidious discrimination on its platform, and its confrontations with allegations of discrimination issued by patrons excluded for hate-group affiliation—this Note parses the tension between ensuring equal access and upholding free speech. In so doing, this Note offers a legal framework for analyzing when digital entities qualify as public accommodations under Title II, when accommodations may exclude patrons while upholding Title II values, and what defenses an accommodation may employ if a patron establishes a speech interest. Ultimately, this Note argues that the digital accommodation may legally exclude unprotected traits to meaningfully include those who are protected
The Harms of Heien: Pulling Back the Curtain on the Court\u27s Search and Seizure Doctrin
Get PDFIn Heien v. North Carolina, the Supreme Court held that individuals can be seized on the basis of reasonable police mistakes of law. In an opinion authored by Chief Justice Roberts, the eight-Justice majority held that the Fourth Amendment\u27s prohibition of unreasonable seizures does not bar legally mistaken seizures because [t]o be reasonable is not to be perfect. Concurring, Justice Kagan, joined by Justice Ginsburg, emphasized that judicial condonation of police mistakes of law should be exceedingly rare. In a solo dissent, Justice Sotomayor fairly wonder[ed] why an innocent citizen should be made to shoulder the burden of being seized whenever the law may be susceptible to an interpretive question.
This Article provides the first empirical study of state and lower federal court cases applying Heien (from the day it was decided in mid-December 2014 through mid-June 2023). Of the over 270 cases examined, a large majority (over two-thirds) deemed unlawful police seizures reasonable, belying Justice Kagan\u27s expectation that such cases would be exceedingly rare. Moreover, the study makes clear that Heien is being applied well beyond the context in which it arose an auto stop for a suspected equipment violation. Courts regularly rely on Heien to justify unlawful stops for a broad array of other, often more serious offenses and to justify unlawful arrests of individuals, far more significant intrusions on physical liberty that allow officers to conduct searches. Courts also forgive police mistakes of law regarding Fourth Amendment doctrine, such as the contours of consent and the permissibility of warrantless blood draws. Finally, the study demonstrates that courts lack any consistent analytic rubric for assessing whether a police mistake of law is reasonable, including the critically important foundational question of who (judges, laypersons, or police) should serve as the benchmark audience when assessing whether a mistake of law is reasonable.
In addition to exploring the study\u27s results, the Article uses Heien to assess the adverse real-world consequences of what would appear an uncontroversial decision by a near-unanimous Court. Heien not only augmented the already troublingly expansive police discretionary authority to seize individuals without warrants; it also significantly undermined the rule of law and undercut separation of powers. By condoning police mistakes of law, the Court at once weaponized statutory ambiguity for use against citizens and encouraged rational ignorance among police, lessening their incentive to learn the scope of the laws they enforce
Dead Bodies as Quasi-Persons
Get PDFThis Article argues that American law treats dead bodies as quasi-persons: entities with a moral status between things and persons. The concept of quasi-personhood builds on dead bodies’ familiar classification as quasi- property. Just as quasi-property implicates only a subset of the rights usually associated with property, quasi-personhood implicates only a subset of the moral interests often associated with moral personhood. Drawing on a broad historical analysis of state, territory, and federal law, I show that U.S. law conceives of dead bodies as holders of dignity interests, which it protects in a variety of ways. The law, for example, protects dead bodies against denigration to the status of property, waste, or nonhuman animals and ensures that dead bodies be treated as individuals with names. The law also protects dead bodies against visual, physical, and sexual abuse. I analyze how these dignity protections operate across disparate areas of law, including criminal statutes, tort law, licensing regimes, and zoning ordinances. Using unclaimed bodies as a case study, I then argue that my account of dead bodies as quasi-persons casts a critical light on the mistreatment that some dead bodies—especially those of Black Americans, Native Americans, and the poor—regularly suffer. The account also illuminates the law’s implicit views of personhood, property, human nature, and mortality. And it points the way for future research on the law’s treatment of other arguably liminal entities, such as animals, fetuses, plants, and AI models
Needful Rules and Regulations: Originalist Reflections on the Territorial Clause
Get PDFThere are few areas where the current state of the law is as inconsistent, incoherent, and intellectually bankrupt as the law of U.S. territories. The seminal cases in the field are the infamous Insular Cases, where the Supreme Court of the United States held that the “half-civilized,” “savage,” “ignorant and lawless” “alien races” that inhabited the United States’ overseas territories were not entitled to the same constitutional rights and protections afforded to Americans residing in the mainland United States—holdings that were based on the white man’s burden and similar then-prevalent theories of white supremacy.
Despite being firmly entrenched within the constitutional anticanon and having “long been reviled” by all corners of the legal community, the Supreme Court has never expressly overruled the Insular Cases; rather, it has repeatedly implored that they “should not be further extended.” Yet notwithstanding this instruction, the lower federal courts continue—sometimes begrudgingly, but at other times enthusiastically—to apply them as binding precedent, typically because of the principle that only the Supreme Court may overrule its own precedents
A Bayesian Analysis of E-Cigarette Risk Perceptions in the United Kingdom
Get PDFPublic Health England has communicated that e-cigarettes provide at least a 95% risk reduction compared to conventional cigarettes. This article\u27s survey evidence indicates that adults in the United Kingdom believe that e-cigarettes are only 30%–40% safer overall and that they reduce lung cancer risks and total mortality risks by a similar percentage. A Bayesian analysis of risk beliefs finds that e-cigarette risk perceptions are anchored on prior cigarette risk beliefs. The public, especially smokers, underestimates the magnitude of the risk reduction being communicated by public health officials. Those who are aware of e-cigarette messages from Public Health England assess lower risks of e-cigarettes, but they still underestimate the relative risk reduction. Even people with favorable qualitative beliefs about the harm reduction provided by e-cigarettes overestimate the riskiness of e-cigarettes
Climate Zoning
Get PDFAs the urgency of the climate crisis becomes increasingly apparent, many local governments are adopting land use regulations aimed at minimizing greenhouse gas (GHG) emissions. The emerging approaches call for loosening zoning restrictions to unlock greater density and for strict new green building codes. This Article argues that both approaches are appropriate in some places but not in others. Not all density is created equal, and compact multifamily housing at the urban fringe may actually in- crease GHG emissions. Moreover, where density is appropriate, deregulation will not necessarily produce it. And, finally, green building codes will increase housing costs and so will actually increase GHG emissions if they discourage growth in low-carbon places. Those are appealing in the abstract but are unlikely to be adopted in many places anytime soon. This Article therefore offers a set of regulatory prescriptions specifically for local governments aimed at producing density in low-carbon places and minimizing emissions in high carbon ones
Justifying Aggression: Russia\u27s 2020 Constitutional Amendments and the Invasion of Ukraine
No full textBeyond the alluring promise of an enhanced social safety net for Russian citizens, President Vladimir Putin\u27s constitutional amendments of 2020 betrayed a distinct preoccupation with fortifying Russia\u27s international standing and crafting a new national identity. By Putin\u27s own account, these amendments were necessary to steel the country against the malevolent action of international conspirators committed to Russia\u27s downfall. As this Article posits, these specific constitutional changes systematically entrenched an exceptionalist vision of Russian sovereignty and a civilizational identity that left the country constitutionally untethered from international norms and institutions, saturated in religious fervor and visions of imperial glory, and poised for war.
Following a brief introduction, the first main part of this Article explores how enshrining constitutional supremacy, territorial integrity, and the doctrines of peaceful coexistence and noninterference sought to control the impact of international law and to revive Soviet-era legal norms used to dominate neighboring states. The second part turns to the constitutionalization of a new civilizational identity steeped in a heady if selective history of imperial entitlement, traditional values, and the protection of compatriots abroad. It argues that these provisions signaled a clear intention to break from Russia\u27s previous constitutional orientation in favor of confronting a perceived threat posed by unbridled Western ultraliberalism bent on destroying Russia\u27s national identity and security.
Unpacking how the twin ideas of sovereignty and civilizational identity have embedded themselves in Russia\u27s constitutional structure facilitates drawing a direct connection between the amended constitution and Kremlin foreign policy objectives. It further demonstrates how these principles equipped the Kremlin with constitutional succor in justifying its war of aggression against Ukraine. The Article concludes by situating the constitutional amendments within the larger trend of autocratic legalism and urging the international community to recognize the Kremlin\u27s constitutionally embedded motivations for war
Adapting Multilateral ISDS Reform to Regional Needs: A Proposal for a Chambers Mechanism
No full textIn this Article, we use the Association of Southeast Asian Nations (ASEAN) as a case study to question whether the proposed establishment of multilateral institutions (namely, a Multilateral Investment Court or a standing appellate mechanism), as part of investor-State dispute settlement (ISDS) reform efforts, will adequately address the concerns and priorities of individual States. The varied content and overlapping nature of the investment treaty portfolios of ASEAN Member States, as well as their varied experiences with ISDS to date, mean that key concerns and priorities that ASEAN Member States have expressed about the current regime of ISDS (consistency and coherence, representation, and cost-efficiency) may not be adequately addressed unless the proposed multilateral institutions are flexibly structured to allow for regional adaptation. Given this assessment, we suggest two ways for such regional concerns to be reflected in the United Nations Commission on International Trade Law\u27s (UNCITRAL) multilateral reform proposals, namely: (i) for UNCITRAL to establish a mechanism to allow for treaty-specific chambers within a Multilateral Investment Court or a standing appellate mechanism; and (ii) for ASEAN Member States and their Free Trade Agreement (FTA) partners to capitalize on the opportunity afforded by the Regional Comprehensive Economic Partnership (RCEP) to move towards a consolidation of investment treaty rules and dispute settlement among ASEAN Member States, as well as between ASEAN Member States and the ASEAN FTA partners
The Needless Search for a Founding-Era Hearsay Definition
No full textModern Confrontation Clause doctrine permits only unconfronted out-of-court statements that would have been admissible in a criminal case at the time of the founding. To operationalize this concept, the Supreme Court identifies testimonial hearsay as the Clause\u27s primary concern. Its opinions regularly dive into the historical record to refine what counts as testimonial but ignore that record in defining hearsay. This omission cannot last. Cases in the lower courts, and one on the Court\u27s recent docket, concern testimonial but (arguably) non-hearsay statements. And while confrontation jurisprudence is supposed to be tied to founding-era evidence law, the hearsay definition, casually referenced by the Court in its opinions so far, is a modern innovation. In future cases, the Court will have to identify a founding-era hearsay definition or chart an alternate path.
Since there was no precise definition of hearsay in 1791, this essay proposes an alternate path: reframing the Clause as prohibiting unconfronted testimonial statements (not testimonial hearsay\u27). It also suggests that the Court\u27s insight regarding the unobjectionable nature of non-hearsay can be incorporated into the definition of testimonial. The current test for whether a statement is testimonial focuses exclusively on the context in which the statement arose. A more robust test would examine both the statement\u27s context and the subsequent use of that statement at trial.
With the proposed addendum, an out-of-court statement would only be testimonial if generated in a testimonial context and introduced to prove the declarant\u27s assertions. This broader inquiry neatly parallels the Sixth Amendment text, identifying circumstances when an out-of-court speaker truly bears witness at trial and thus becomes a witness against the accused. And this inquiry eliminates any need to address the often-unanswerable question of whether a statement would have been hearsay in 1791