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Due Diligence Obligations over State Economic Entities in International Investment Law
No full textThe growing importance and sophistication of State capitalism and associated implementation of governmental policies through State economic entities, such as State-owned banks, State-owned enterprises, monopolies, and other entities close to the government, has given rise to a perception that existing international law rules are inadequate to effectively accommodate the activities of such entities. Sole reliance on customary international law principles of attribution has proven particularly problematic where governments maintain links with their economic entities that create a risk of the latter being used as conduits for governmental action. Such links may exist in a variety of forms beyond mere ownership, such as voting rights, appointment powers, the occupation of board seats by governmental ministers, private firms’ managers’ concurrent governmental posts, the imposition of governmental oversight committees within firms, coordination of economic activity in a given industry through chambers of commerce composed of former governmental ministries, overlapping board membership amongst private and State firms, and other means of directly influencing such entities beyond general regulation. This opaque relationship between the government and State economic entities may allow governments to circumvent international law obligations by channeling acts through those entities and casting such acts as private economic activity not attributable to the State. States are increasingly elaborating primary rules to overcome the perceived risks associated with State capitalism, most prominently in modern preferential trade and investment agreements. While varying in content and scope, these rules generally hold States accountable for the activities of their State economic entities by requiring the State to ensure that such activities be in compliance with the State’s treaty obligations. In this regard, they resemble classic international law standards of due diligence. Commentators and tribunals, however, have struggled in construing these provisions on State economic entities and how they interact with underlying attribution principles. This paper considers to what extent these provisions are characterized by the due diligence standard of international law. It argues that they provide a flexible means of regulating the activities of State economic entities without regard to whether their acts would be attributable under secondary attribution rules. Requiring States to exercise due diligence over their State economic entities thus addresses the perceived risks arising out of the closeness of those entities to the State without the need to make the State fully responsible for all their actions in all scenarios
Who Gets Remembered? Structural Barriers in the National Register of Historic Places
No full textThis article examines the systemic barriers within the National Register of Historic Places, established under the National Historic Preservation Act of 1966, that have contributed to the underrepresentation of marginalized communities in historic preservation. Despite the United States’ diverse cultural heritage, only an estimated 3% to 10% of sites listed on the National Register reflect histories associated with racial and ethnic minority groups. Through a qualitative analysis of legislative history, federal regulations, nomination processes, and governance structures, this study identifies how key criteria such as “significance” and “integrity” have reinforced exclusionary practices. These criteria consistently prioritize architectural and tangible heritage over lived experiences, cultural landscapes, and communal histories. Additionally, this research explores the role of State Historic Preservation Offices, federal decision-making bodies, and professional norms in shaping preservation outcomes, revealing systemic biases in leadership, funding distribution, and procedural accessibility. One critical limitation is the lack of comprehensive data collection and transparency, which hinders efforts to measure disparities and implement reforms. This article argues that addressing these structural inequities requires broadening definitions of significance, reconsidering integrity standards to reflect the realities of displacement and adaptation, increasing diversity in preservation leadership, and expanding financial and technical support for underrepresented communities. By critically examining legal frameworks and institutional practices, this study underscores the need for transformative reforms to ensure that historic preservation more equitably reflects and protects the full spectrum of American history
Bridging The Rural Justice Gap: A Scalable Solution Rooted in Clinical Legal Education
No full textThe rural justice gap significantly impacts child welfare legal representation, exacerbating the challenges families face when navigating juvenile courts in rural America. Attorneys in these communities frequently encounter geographic isolation, limited access to specialized training, professional burnout, and inadequate resources, all of which hinder effective advocacy for vulnerable children and families.
This article argues that clinical legal education, when paired with structured post-graduate training and multidisciplinary consultation, offers a replicable model for addressing the rural attorney shortages in juvenile court advocacy. The Nebraska Children’s Justice and Legal Advocacy Center (NCJC) illustrates how this model can be designed and scaled to meet the needs of other jurisdictions. The NCJC combines a law school clinical program, training future attorneys as Guardians ad Litem, with a post-graduate fellowship that enhances the competencies of all practicing rural attorneys in child welfare law. Central to this model are experiential learning, structured mentorship, interdisciplinary collaboration, and reflective practice, each grounded in trauma-informed principles.
Empirical evaluation data indicates that NCJC has significantly improved attorney preparedness, increased sustained commitment to juvenile advocacy, and expanded rural communities’ access to skilled representation. This framework offers a replicable, evidence-based solution that jurisdictions nationwide can adopt, bridging critical gaps in rural justice and ensuring that geography no longer determines the quality of justice available to children and families
Proof Beyond a Reasonable Doubt Doesn\u27t Exist: Except as an Emergent Property of a Complex Adaptive System
No full textThe pursuit of knowledge is undergoing a transformation. Scientists and scholars are rejecting standard reductionist efforts, popularly captured by “the scientific method” and embracing the framework of complexity theory and complex adaptive systems. That framework is invaluable to understand both the law of evidence and the nature of Anglo-American legal systems. It also has significant implications for the ongoing debate over the concept of law. This Article demonstrates how “proof beyond a reasonable doubt” (BARD) does not exist in any knowable form, except as an emergent property of a complex adaptive system—the criminal process. First, what constitutes BARD will vary within any jurisdiction. BARD is a linguistically vague and indeterminate standard. Second, evidentiary and procedural regimes will differ from state to state and from country to country. Differences in such regimes will functionally affect what constitutes BARD. We demonstrate how plea bargaining, declination, and diversionary programs will affect what constitutes BARD by affecting the proportion of factually guilty and innocent defendants that proceed to trial (incidentally affecting any distribution of errors). Third, we account for and respond to how the debate surrounding BARD is imbued with a deterministic focus on solving what BARD is and should be, which has proven to be a futile quest. Scholars must embrace—not ignore—the complexity that permeates our evidentiary and procedural regimes
Taking Back Control: Using the Takings Clause to Hold Animal Agriculture Responsible for Its Waste Problem
Full text linkBetween the mid-twentieth century and modern day, the animal-agriculture model has shifted from small farms to industrial operations. During that evolution, the negative externalities of animal-farming practices have intensified. One of those externalities—animal waste—has become particularly problematic. Because of the sheer number of animals raised in the United States for slaughter and dairy production, the magnitude of animal waste produced is overwhelming. To deal with this problem, animal farmers often liquefy the animal waste and then spray it onto open fields. In that spraying process, liquefied animal waste carries through the air and reaches nearby homes, coating those properties with manure and odor.
Historically, this spraying was unnecessary: farmers did not have such large operations creating such immense waste. However, as these operations grew, so did the need to find alternative solutions. Alongside those solutions came protections for the externalities they created: all fifty states largely prohibit nuisance suits against animal-agriculture operations. This has left communities without a method to legally protect themselves from the spraying nuisance. Further, the members of these communities are often unable or unwilling to leave their homes, many of which have been in their families for generations, long predating the spraying operations.
These communities deserve an alternative method by which they can obtain justice and compensation for bearing the negative externalities of American meat and dairy production. One such option is the Takings Clause. To engage in this manure spraying, many farmers must obtain a permit under the Clean Water Act. This Note argues that a permit granting farmers the right to spray manure should be considered a government authorization to occupy their neighbors’ properties and significantly lower the value of their homes. In receiving just compensation for these regulatory takings, affected communities will not only find some financial justice, but also hold the government and farms accountable for the negative externalities that they impose on marginalized people
Robots and (Indian) Reservations: A Jurisdictional Nightmare Waiting to Happen
Full text linkAdvances in artificial intelligence are expanding the possibilities of robots. Indeed, robots are now engaging in numerous activities previously thought to require human cognition, such as driving cars and diagnosing diseases. Scholars have published numerous articles examining the intersection of law and robots across myriad fields. However, legal scholarship has yet to explore the relationship between robots and federal Indian law. This is a significant oversight because there are 574 federally recognized tribes and over fifty-six million acres of Indian country. Thus, legal issues involving tribes and robots are inevitable. This is the first law review article dedicated to exploring how robots will interact with federal Indian law.
To prevent litigation over whether tribes or states have authority over robots, this Article proposes the Tribes and Robots Act (TRA). The TRA affirms tribes have exclusive authority over the robots within Indian country. Accordingly, the TRA provides clear rules that will prevent jurisdictional disputes. Recognizing tribes have exclusive authority over the robots in Indian country also empowers tribes to experiment with robotics policies thereby contributing ideas that can inspire other governments
(The Lack of) Fan Fiction Litigation: Why Do Creators Refrain from Suit?
Full text linkThis Note explores the status of contemporary fan fiction under United States copyright law. It begins by tracing the historical development of fan fiction and then examines fan fiction’s legal treatment in the internet age, with a focus on the potential application of the fair use doctrine. It surveys relevant case law and considers the notable absence of litigation by content creators against fan fiction authors. Finally, it offers a number of possible explanations for this reluctance to pursue legal action
The Walk Away from Racial Equality
Full text linkThis article demonstrates that the U.S. Supreme Court has walked away from racial equality in favor of the same liberal equality approach that was the foundation for Plessy v. Ferguson’s “separate but equal” doctrine. The Court’s recent affirmative action cases, from Grutter and Gratz v. Bollinger, to Fisher v. University of Texas, to Students for Fair Admissions v. President and Fellows of Harvard College, all apply a liberal equality theory that is hostile to racial equality. In the lead-up to these cases, the Court abandoned its Brown-era interpretation of equality under the Fourteenth Amendment Equal Protection Clause in favor of a liberty-centered jurisprudence that is essentially a reapplication of the Plessy-era theory of equality. Under the Plessy-era liberal equality framework, Fourteenth Amendment equality does not require positive action to advance full racial inclusion so long as law and government action provides for the same facilities for all. This “sameness” approach is the essence of the liberal component to liberal equality. Today, liberal equality is the theoretical foundation for affirmative action decisions, based on the idea that the use of race should always be subject to the strictest scrutiny even when that use is intended to benefit racial minorities.
This article distinguishes racial equality from liberal equality. It addresses how the Burger Court began the transition away from a racial equality-based doctrine, which has led to the point we are today with a re-embrace of Plessy-era liberal equality under Students for Fair Admissions. Ignoring the white supremacy concerns that underlie foundational Equal Protection Clause decisions like Loving v. Virginia, and instead focusing exclusively on differential treatment or discrimination concerns, removes a core component to the meaning of equal protection. Equality as identical treatment is only half the story; the other half is racial equality – the end of racialized hierarchy
The Healing Power of Antitrust
Full text linkMillions of Americans live in hospital deserts—communities where people lack geographic access to hospitals and primary care physicians. People living in these deserts often miss doctor appointments, delay necessary care, and stop adhering to their treatment. In this way, hospital deserts exacerbate the health disparities plaguing America. This Article demonstrates that hospital deserts are not inevitable but the result of several business strategies—including noncompete agreements and merging with competitors—and antitrust enforcers’ unwillingness to recognize these harmful practices as antitrust violations. To cure the issue of hospital deserts, this Article makes three proposals. First, antitrust enforcers and the courts should expand their merger analyses to include hospital mergers’ impact on labor markets. Second, enforcers should treat all noncompete agreements in the healthcare sector as per se illegal. Third, they should accept mergers in rural areas only under the condition that the merged entity will not shut down facilities or cut healthcare services so as to create a hospital desert. By implementing these proposals, antitrust enforcers and the courts can help mitigate the racial and health inequities that currently undermine the social, moral, and economic fabric of America