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Coral Reef Protection is Fundamental to Human Rights
Full text linkThe intensifying loss of coral reefs from global climate change and local stressors has seen international commitments targeted at conservation and repair, for example the Kunming–Montreal Global Biodiversity Framework. Fulfilling these targets requires decisions to be made on where, when, and how to act, ultimately dictating where limited resources will be deployed. Every choice on action or inaction toward our ocean has direct and indivisible consequences not only for the health of marine ecosystems but also for the health of humans, particularly those who directly depend on marine habitats, both culturally and economically. The well-being of the environment, humans, and animals is interlinked, co-dependent, and even co-produced, as has already been acknowledged by One Health approaches, which endorse a cross- and trans-disciplinary view to health. Coral reefs epitomie how tightly intertwined ecosystem health and the fate of the human and nonhuman communities that depend on them are. A field that thus far remains poorly considered is a human rights-based approach to coral reef protection. A human rights-based approach implements human rights obligations, including the recently affirmed right to a clean, healthy, and sustainable environment, while embedding principles of accountability, nondiscrimination, participation, and empowerment for local and Indigenous communities that ensure effectiveness and meaningful stakeholder engagement. Tying the protection of coral reef ecosystems to human rights emphasises the importance of healthy ecosystems to human well-being and thus the inevitable connection between nonhuman and human life. The general failure to consider coral reef protection through a human rights-based approach is a missed opportunity to expedite reef protection while simultaneously advancing climate justice for both humans and nonhumans
The Enduring Lives of False Legislative Facts: Asset Forfeiture
Full text linkFederal courts have found asset forfeiture constitutional by relying on assertions that have been accepted as true without being established at trial. These “legislative facts” play a central and enduring role not only in jurisprudence but in the broader public policy debate over forfeiture. To date, these assertions have not been subject to careful empirical review. We test three central legislative facts frequently offered as providing a compelling government interest for the use of forfeiture: (1) that forfeiture provides vital funding for law enforcement activities; (2) that forfeited funds are used to reimburse the victims of crime; and (3) that forfeiture plays a crucial role in disrupting organized criminal networks. A thorough review of the evidence finds that none of these factors plays a significant role in the vast majority of forfeiture actions. Further testing of the impacts of forfeiture on policing efficiency indicates no material benefit from forfeiture. With respect to asset forfeiture, legislative facts have long and influential lives despite being fundamentally unsound
Legality Beyond the State
Full text linkInquiry into law beyond the state, or indeed within it, necessarily presupposes a concept of law. Consider, for example, H.L.A.’s account of international law.1 Hart famously characterizes law in terms of a union of primary and secondary rules.2 Understood in functional terms, primary rules govern actions, while secondary rules govern rules. Hart also pays particular attention to a special class of secondary rules, namely those that create specific offices whose occupants are empowered to identify, alter, apply, and enforce a society’s rules. An advanced legal system, then, is a practice of holding accountable constituted by both a hierarchy of norms—primary rights and duties, and secondary powers and immunities—and a hierarchy of agents—rulers and ruled. On the basis of this conceptual framework and his observation of international legal practice, Hart concludes that international law is a legal order but not a legal system.3 Though certainly insightful, I worry that Hart’s functional account of law sweeps too broadly. Specifically, it fails to distinguish between three forms of social order, or practices of holding accountable, in which rules figure centrally: the legal, the managerial, and the economic. Therefore, I propose to categorize practices of holding accountable on the basis of normative criteria, namely their satisfying to some minimally adequate degree, and perhaps much better than that, a regulative ideal governing the exercise of political power.4 I will then detail some of this conceptual framework’s advantages for productive inquiry into human affairs, focusing in particular on the contemporary international order—a practice of holding accountable, though perhaps not a legal one, that is beyond, albeit not apart, from the state
The Workings of Legal Exceptionalism: Arbitration as a Portal to Stateless Law-in-Action Regimes
Full text linkThis Essay seeks to explores the fertility of thinking about arbitration as a portal to stateless legal regimes. Using the distinction between law in books and law in action, as well as the concepts of social and political disembeddedness and quiet politics, it argues that under the current paradigm of arbitration, it operates as a porous portal, getting corporate and natural citizens to escape into stateless law-in-action legal regimes (though in practice not into a law-in-books stateless legal regime). This raises questions of control of and accountability for the political effects of such stateless law-inaction legal regimes on the rest of society
Sovereign Immunity & Punitive Fines Under the Clean Air Act: Common-Sense Statutory Interpretation & Clean Policy
No full textThe Use of Preprints in Doctorate Programs: A Citation Analysis Study of Trends in Chemistry and Physics Dissertations
Full text linkPreprint articles are available on servers, such as arXiv and ChemRxiv, at no-cost to benefit the movement toward open access of research. However, the use of preprint research articles as a reference source in academia is not heavily documented. To examine if researchers are utilizing preprint articles, this paper examines citation trends in the dissertations of chemistry and physics PhD candidates who studied at four University Centers in the State University Of New York system (SUNY). Using citation analysis methodology, references cited in PhD dissertations published between 2018–2021 were analyzed. Key findings showed that PhD candidate authors cited preprint articles at a low rate, and relied on traditional resources for their dissertations, such as articles and books. Physics preprints were cited with more frequency than chemistry preprints. This data provides a benchmark for tracking the use of physics and chemistry preprints in academic research. The results of this study are also useful for examining library collections, particularly around core journal titles. Additionally, this paper raises questions about the information literacy skills of doctoral students. The doctoral students’ best practices of using preprints could be explored in future research
COVID-19 and The Populist Governments Approach to Pandemic Management: A Nuanced Analysis
Full text linkThis article addresses international law discourse in the post- COVID-19 era. The first part engages with questions about China, its liability, and the complex legal discourse on causation. The present position of the WHO is that COVID-19 is a zoonotic virus like SARS. The nature of the spillover event remains unclear, but the first human case was identified at some point in Wuhan, China, in December 2019. For the reasons outlined in Part I, the scholarly consensus has been that claims against China appear unjustifiable. The two case studies in Part II demonstrate the factors involved in local pandemic management in two major countries, the United Kingdom and India. Part III discusses the issues of multiple causes and overdetermination, discourse on international law, and the resumption of progress
Moral Panic and the First Amendment
Full text linkDebates over free speech in the United States frequently see advocates of strong, broad protections at odds with those who argue that unfettered free speech tends to harm society’s most vulnerable. Free speech advocates invoke the marketplace of ideas and argue that the antidote to false or harmful speech is more speech. In response, critics contend that speech itself causes harm and chills counter-speech— effectively excluding marginalized groups, including women and LGBTQ people, from discourse altogether. These critics support limitations on robust free speech doctrine targeting speech that harms marginalized communities.
This Article identifies a significant wrinkle in this narrative: the problem of moral panic. The term “moral panic” originates in sociological literature and, simply stated, connotes disproportionate media and social condemnation of an identifiable deviant group or type of individual. I argue that moral panic influences modern lawmaking trends and identify two such trends in particular: panic over drag performers who purportedly groom and otherwise harm children, and panic over teachers and administrators who incorporate critical race theory into classrooms. Applying multiple models of moral panics, I argue that there is a strong case that laws restricting drag performance and teaching of critical race theory or other “divisive concepts” are frequently based in moral panic.
Moral panic adds nuance to debates over the scope of First Amendment protections. To some extent, laws originating in moral panics vindicate critics of unfettered free speech, as the freedom to spread falsehoods (particularly those that are deemed politically salient) contributes to panic and fuels demand for panic-based restrictions. But when a moral panic’s influence goes so far as to prompt the enactment of restrictive laws, critics of strong speech protections may find a strong resource in the very doctrine they criticize. Laws restricting drag performances and critical race theory teaching are vulnerable to a variety of First Amendment challenges. Those who seek to reform permissive First Amendment doctrine therefore must account for panicgenerated laws and how strong speech protections may support challenges to these laws
The Postnational Aspirations of European Law
Full text linkThis Essay begins from a particular quarrel over the interpretation of the German Federal Constitutional Court’s PSPP judgment of May 2020 to open onto questions of how to conceive political freedom beyond the nation-state, about the structure of postnational constitutionalism and its purposes, and, finally, about the role of courts within that structure and in light of those aspirations. In arguments defending the Court, an influential strand of constitutional theory, in this Essay represented by the intervention of Ulrich Haltern, continues to channel assumptions that constrain thinking about Europe as a postnational legal order. Assuming that political freedom is essentially a self-referential articulation of identity, this theory conflates democratic self-authorship with the pursuit of control (Part I). Assuming that constitutional legitimacy must trace the social embeddedness of law, it neglects the process by which constitutionalism and society alike respond critically to change and the possibility of reform (Part II). And, finally, assuming that courts, as legitimate institutions, must channel the voice of the popular sovereign, it sees little possibility for them to reframe the context in which that voice understands itself to speak and be heard (Part III). In considering these conflations in light of contemporary critical theories of freedom and reification, the countervailing perspective offered in this Essay is that questions of political accountability—for what and by whom—are questions that cannot in fact be settled by law’s authors alone. If the conception of self-authorship in Haltern’s legal culture maintains that “the rules are our own when we hold ourselves accountable,” a postnational legal culture, a legal culture with postnational aspirations, believes we hold ourselves accountable when we affirm that the rules are not merely our own. That constitutionalism must not ignore the social embeddedness of law does not mean that constitutional order cannot interrogate those social foundations with a mindset of critique. This Essay’s conclusion is that fidelity to social legitimacy and the project of democratic self-authorship is not in tension with this possibility but requires it