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A Litigator’s Guide to the Galaxy: A Look at the Pragmatic Questions for Adjudicating Future Outer Space Disputes
Get PDFSince the beginnings of the space age, outer space activities have been the realm of government with ancillary involvement by non-governmental actors. The international legal framework for outer space contemplated the involvement of non-governmental actors, but in creating dispute resolution mechanisms the role of non-governmental entities was not considered ripe. The surge of direct non-governmental involvement in outer space activities in recent years again raises the issue of dispute resolution and exemplifies the lack of dispute resolution mechanisms designed to address differences between sovereign states. As the pace of non-governmental activity increases, so does the likelihood of disputes arising between non-governmental actors and therefore the need for a forum to address grievances. The US federal court system stands as a judicial institution that is capable of addressing the future needs of non-governmental litigants whose disputes reach into the sovereign-less regions of outer space
Murphy’s Law: How to Avoid Going Wrong with Federal Regulation of Sports Gambling
Get PDFSports betting plays a major role in how fans and spectators enjoy sports. Fans place bets in their living rooms, engage in online fantasy sports, and travel to Nevada for massive Super Bowl parties just for the thrill of wagering on the “big game.” Yet, until 2018, the federal government banned sports betting, making states unable to exploit this lucrative business, even though the sports betting industry estimates that billions of dollars are spent on illegitimate sports wagering. With the recent striking of the federal ban on the regulation of sports betting, states have begun to benefit from sports betting within their own borders, creating a patchwork of legislation that operators must navigate. But state-specific legislation does not fully solve the problem of unregulated and untaxed interstate gambling that is still bound to occur. To take advantage of untaxed revenue and protect citizens who might otherwise explore illegitimate and unsafe betting options, this Note argues the federal government must enact comprehensive laws legalizing and creating rules specifically for interstate sports betting operators
Redefining LGBTQ and Abortion Rights in Latin America: A Transnational Toolkit
Get PDFThroughout Latin America, the Lesbian, Gay, Bisexual, Trans, and Queer (LGBTQ) and abortion rights movements have progressed at divergent strengths and speeds, with significant variation among countries. The region is home to some of the most restrictive and discriminatory laws when it comes to these contentious issues. This Note explores some of the reasons behind the variation in LGBTQ and abortion rights throughout the region.
This Note traces the economic and political history of Latin America to illustrate the climate in which these social movements are operating. Further, this Note offers a brief snapshot of recent global developments in LGBTQ and abortion rights, paying close attention to how the United Nations and the Inter-American Court of Human Rights define and protect said rights. This Note provides a case study on the LGBTQ and abortion rights movements within Argentina, Uruguay, and El Salvador because these countries exemplify the immense variation in laws concerning LGBTQ rights and reproductive rights throughout Latin America. By extrapolating lessons from each country, this Note creates a transnational toolkit for law and policy change, which can be adopted and adapted to fit each country\u27s unique socioeconomic and political climate. If applied effectively, the toolkit can help bring abortion rights up to speed with LGBTQ rights in Latin America and establish uniformity in human rights-across the region
Conflicting Justice in Conflict of Laws
Get PDFChoice-of-law rules determine which national law (not necessarily that of the forum) applies in private law matters that cross over multiple jurisdictions. Given the ubiquity of interpersonal cross-border relations, choice-of-law rules play an enormous role in securing justice in the transnational social realm. For example, they determine whether individuals can recover retirement benefits from worldwide investments through pension funds, whether they can receive compensation following an accident abroad, or whether their foreign marriages, divorces, adoptions, or support orders will be recognized or invalidated at home.
Yet the legal field of conflict of laws has always been divided between two theoretical paradigms known as conflicts-justice and material-justice, such that a unified view of justice in the transnational realm has remained elusive. It has long been assumed that contrary to material-justice theories, conflicts-justice theories are disinterested in the actual substantive result of a dispute reached through the application of choice of law rules. It is presumed that from a conflicts-justice perspective, choice-of-law rules are thought to ensure justice simply by identifying the proper geographical link between the individuals or the action and the state whose law is applied. This Article shows that these assumptions are the result of deep misunderstandings about the analytical premises of conflicts-justice theories. Through a detailed account of the intellectual history of theories of justice in conflict of laws in the second half of the twentieth century, this Article argues that the conflicts-justice and material-justice theories are in fact complementary, and that their different insights work in tandem to secure justice for cross-border private law matters. It further shows that, contrary to widespread assumptions by scholars and judges alike, the two theories lead to the same results in some of the most controversial tort law scenarios
Judging Judicial Appointment Procedures
Get PDFOver the last several years, judicial appointment procedures in the United States have become increasingly intractable. Members of both parties are seen to engage in political gamesmanship, calling the legitimacy of the appointment process into question and decreasing public confidence in both the legislature and the judiciary. Questions are even beginning to arise about whether and to what extent the United States is complying with the rule of law.
Although numerous solutions have been proposed, one alternative has not yet been considered: international law. As paradoxical as it may seem, the best and perhaps only feasible solution to quintessentially domestic concerns about the appointment of judges may require parties to go outside the national legal system itself.
This Article takes its inspiration from the recent decision of the European Court of Human Rights in Case of Gudmundur Andri Astradsson v. Iceland and applies certain principles and practices reflected in that case to the United States via the American Convention on Human Rights. In so doing, the analysis offers a useful and tangible means of addressing improprieties associated with the appointment of judges in the United States, thereby providing a new perspective on a very important problem
Cutting Class Action Agency Costs: Lessons from the Public Company
Get PDFThe agency relationship between class counsel and class members in Rule 23(b)(3) class actions is similar to that between executives and shareholders in U.S. public companies. This similarity has often been noted in class action literature, but until this Article no attempt has been made to systematically compare the approaches taken in these two settings to reduce agency costs. Class action scholars have downplayed the importance of the public company analogy because public companies are subject to market discipline and class actions are not. But this is precisely why the analogy is useful: because public companies are subject to market discipline, the tools they utilize to reduce agency costs are more likely to be efficient. This Article looks to those tools as inspiration for class action reform, proposing several novel ways to improve current practice
Broken Records: Reconceptualizing Rational Basis Review to Address “Alternative Facts” in the Legislative Process
Get PDFIn 2016, North Carolina passed “HB2,” also known as the “bathroom ban”—a law prohibiting transgender individuals from accessing public restrooms corresponding to their gender identity—based on the unfounded fear that cisgender men posing as transgender women would assault women and girls in bathrooms. Around the same time, Alabama enacted a punishing immigration law in which sponsors distorted statistics regarding the undocumented population by using the terms “Latino/Hispanic” and “illegal immigrant” interchangeably. These laws are reflective of a larger pattern. In our increasingly polarized political climate, policymakers are affirmatively distorting legislative records and promoting dubious justifications for their policy goals—that is, they are legislating on the basis of “alternative facts”—in ways that pose unique harms for those excluded from the political process. Some scholars have responded to the phenomenon of alternative facts in the legislative process by arguing for an enhanced analysis of legislative motivation. Others argue for a more general reexamination of the relationship between courts and legislative fact. This Article argues instead for a middleground approach whereby courts perform a threshold legal analysis to determine whether a given piece of legislation was enacted over a “broken legislative record.” Should a litigant persuade the court that a challenged act is predicated on a distorted factual foundation, such that no rational legislator could have supported its enactment, the burden would shift to the government to demonstrate that its ends are grounded in some objective measure of basic truth or rationality. If the government cannot do so, the law should fail
The Specific Consumer Expectations Test for Product Defects
Get PDFThe consumer expectations test in products liability law holds firms liable for producing goods that are more dangerous than the reasonable consumer would anticipate. But judicial experience in the majority of states that have utilized the consumer expectations test demonstrates that it is ambiguous and impossible to apply predictably. The test is ill-suited for regulating complex products or markets with heterogeneous consumers; moreover, the test requires courts to expend significant resources to identify consumers\u27 ex ante beliefs about product risks, even when consumers lacked tangible beliefs about products at the time of purchase. The other major test that courts apply to design defects, the risk-utility test, is also not well defined. The several factors of the risk-utility test are difficult for courts to apply consistently and permit courts to overrule the preferences of consumers who may be willing to tolerate higher risks for lower prices.
In this Article, we propose that courts adopt an amended version of the consumer expectations test that we call the specific consumer expectations test. The specific consumer expectations test would apply to any product or product component for which consumers have clear, articulable ex ante expectations about the function of the product. Under the specific consumer expectations test, a defendant is liable if consumers expected such a product to reduce a particular risk, and the product in fact increased that risk. Similarly, if a product was intended to convey a particular benefit, but in fact harmed consumers along the same dimension, the test is violated. For example, if defective airbags increased the risk of injury after a motor-vehicle crash rather than decreased the risk, that product would be deemed defective under the specific consumer expectations test. By shifting the law\u27s focus from measuring the magnitude of consumer expectations to a simpler identification of the direction that consumers expected risks to change, the specific expectations test increases the administrability of products liability law and captures most of the incentives that the traditional consumer expectations test could theoretically provide. In particular, firms are incentivized to produce products that never increase risks unexpectedly, and consumers are empowered to purchase products which reflect their willingness to pay for risks. In cases where consumers lack specific expectations, we argue that courts should apply the risk-utility test to minimize unanticipated accident costs to consumers and firms.
We bolster our analysis with a novel experiment that demonstrates that the specific expectations test is consistent with the preferences of actual consumers. Our incentive-compatible experiment asked subjects to make consumption decisions over various risky products and determine punishments for the firms that manufacture defective products. The results reveal that individuals demand substantially greater punishments for firms that manufacture products that violate specific expectations. But, before the defect has manifested, consumers are willing to tolerate prospective defect risks in general as well as defects that would cause a product to perform the opposite of its intended function. It is after the defect has occurred that consumers display greater outrage with respect to product defects that impose harms that are the opposite of the intended function of the product or product component. Taken together, these results indicate that the specific expectations test would deter manufacturers from making defective products in the exact circumstances where consumers suffer the greatest harms from product defects, and the test would permit consumers to choose when to consume dangerous products without producers risking ex post liability
Encomium for Karen Rothenberg
Get PDFKaren is also a zealous advocate in the very best sense of the word. After Struewing\u27s article appeared, she wrote an editorial that appeared in multiple newspapers arguing that women with these variants should not lose their insurance. She became deeply involved in the National Action Plan for Breast Cancer, a powerful grass roots organization. Additionally, she became involved at the National Institutes of Health and addressed, often in leadership roles, such issues to develop strategies to prevent genetic discrimination for individuals with variants that increased the risk of developing cancer, to create tools to obtain meaningful informed consent for research, and to govern the use of biological specimens. Her work laid the foundation for the passage of the Genetic Information Nondiscrimination Act as well as the ongoing debate about use of biological specimens for research, most recently instantiated in the changes to the Regulations for the Protection of Human Research Participants that are currently going into effect
Ecosystem Services and Federal Public Lands: A Quiet Revolution in Natural Resources Management
Get PDFThe major federal public land management agencies (the Forest Service, Bureau of Land Management, Park Service, Fish & Wildlife Service, and Department of Defense) have increasingly adopted a language that did not exist twenty- five years ago-the language of ecosystem services. Ecosystem services are the range of benefits that ecological re- sources provide to humans, from water purification and pollination to carbon sequestration and wildlife habitat. The scientific discipline advancing the ecosystem services frame- work arose in the mid-1990s and quickly became a central strategy for fusing ecology and economics research. Despite its ascendance in research communities, the recognition and conservation of ecosystem services in law and policy has been a more gradual, incremental process. While largely unrecognized, the federal public land management agencies have been embedding consideration of ecosystem services in their policy decision making. Looking back, it is remarkable how far this quiet revolution has come. This Article traces that policy evolution and assesses why it happened, how it happened, and what it means for the future of public land management. The Article concludes by arguing that federal land management agencies\u27 emphasis on the flow of ecosystem services from public lands to off-site human communities rebuts arguments that public lands would be better managed by privatization or by increased resource extraction