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Pesticide-Coated Seeds: How the Treated Articles Exemption Circumvents Regulation and Harms the Environment
No full textPesticide-coated seeds dominate the seed market for a wide range of crops, making them the primary means of delivering pesticides to many agricultural plants. Scientific research has revealed increasingly adverse effects from pesticide-coated seeds, including contamination of native plants, surface waters and groundwater, as well as causing the death of non-targeted insects and birds. Evidence also shows that pesticides from the seeds migrates to drinking water supplies and potentially imperils human health. Yet pesticide-coated seeds are not regulated by the United States Environmental Protection Agency due to a little-known exemption called the Treated Articles Exemption. This Article argues that EPA’s failure to regulate pesticide-coated seeds violates the Federal Insecticide, Fungicide and Rodenticide Act, the Administrative Procedures Act, and the Endangered Species Act
Strengthening Temporary Protected Status Through Executive Action
Full text linkThe Temporary Protected Status (TPS) program protects migrants from deportation when their native countries have been struck by armed conflict, environmental disaster, or other extraordinary upheaval. Enacted by Congress in 1990, the program largely escaped attention and controversy for many years as presidential administrations of both parties designated, extended, and terminated TPS designations at similar rates. However, beginning in 2017, then-President Trump tried to end TPS protections for 300,000 beneficiaries—more than 95% of the total. His efforts were blocked in federal district courts, and President Biden has since rescinded the terminations and issued many new designations, expanding the program to its largest size ever and protecting hundreds of thousands of vulnerable migrants. Nonetheless, the future of TPS is more uncertain than ever now that it has become as politically polarizing as many other aspects of the national immigration debate
Green Gold: The Akkoub’s Settler Ecologies
Full text linkThe akkoub (Gundelia tournefortii) is a thistle-like plant so precious in Palestinian cuisine that it is often referred to as “green gold.” The risks, as well as the mystique, surrounding the akkoub have only intensified since the state of Israel designated this plant as protected under the Nature and Parks Protection Act. The story of the akkoub as depicted in this article illustrates the three tenets of “settler ecologies”: the regime of environmental protections enacted by the settler state that furthers its domination of the natural landscape and its dispossession of local and Indigenous communities. The first and fundamental tenet of settler ecologies is the juxtaposed mindset it seeks to advance: the entire ecological system is seen through a binary prism, recruiting living beings to what is portrayed as an all-encompassing ecological war. Second, settler ecologies are means of green dispossession, performed by both genocidal elimination and through the accumulation of natural capital. Colonialism and capitalism thus work through conservation to inflict violence on racialized populations, both human and nonhuman. Third and finally, settler ecologies operate through environmental law, its rigid definitions and categories of protection both enabling and regulating their ongoing governance through the ecological state. While ecologies are potent tools in the hands of the settler state, the story of “green gold” also demonstrates how ecological thought might present a way out of the colonial present toward decolonial ecologies
Why Law Beyond the State Need Not Be a Threat to Democratic Values
Full text linkDiscussions of “law beyond the state” almost inevitably run into objections from those who believe that sub- or supranational legal orders necessarily subvert local democratic governance. Self-proclaimed populists and others express concern that the “will of the people” will be unduly subjected to the dictates of “cosmopolitan elites”1 or local factions, or corporate capture. These objections range across the political spectrum. Those on the right tend to focus on concerns that transnational orders will impose human rights or immigration rules on a national polity, while those on the left worry about trade regimes that might impose local labor or environmental harms, allow too much industry selfgovernance, and so on. But at root level, most of the critiques reflect concerns that non-state regimes are inherently illegitimate as a matter of national democracy or state interest
New Hurdles to Redistricting Reform: State Evasion, \u3cem\u3eMoore\u3c/em\u3e, and Partisan Gerrymandering
Full text linkProponents of fair districting reforms continue to face challenges in seeking to address the problem of partisan gerrymandering. Even in states that have successfully enacted redistricting reforms, state actors have been able to evade compliance, and state courts have been unable to guarantee fair districts. In addition, the Supreme Court’s decision in Moore v. Harper could also limit state court efforts to guarantee fair districts. This Article argues that state evasion and Moore threaten to undermine the efficacy of fair districting norms recognized by state courts or enacted through either state political processes. Moore could create a one-way ratchet by weakening state courts’ role in policing partisan gerrymandering, while allowing state courts to dismantle fair districts and fail to address the problem of evasion.
This Article analyzes these dynamics by examining recent examples of evasion of anti-partisan gerrymandering norms by legislatures, redistricting commissions, and other political actors in the post-2020 redistricting cycle in Ohio, New York, and Florida. The Article begins by situating Moore and state evasion dynamics within theories of federalism, democracy, and election law. It then provides a descriptive account of state partisan gerrymandering regimes, by analyzing variation in the pathways through which states have entrenched norms against partisan gerrymandering, and variation in evasion strategies employed by political actors. Finally, the Article assesses the broader implications of Moore and state evasion dynamics for state court decision-making and the efficacy of state reforms
Transnational Private Environmental Regulation: Are States Striking Back?
Full text linkTo be published in Research Handbook on Environmental Regulation, David Williamson, Gary Lynch-Wood & Agne Prochorskaite, eds.
Rapid global trade expansion beginning in the 1990s spawned a parallel expansion in non-state (‘private’) environmental regulatory (PER) programs. They issue regulatory standards, monitor and judge performance, sanction poor performance, and sometimes regulate state activities. PER programs constitute extensive and complex transnational governance agglomerations encompassing environmental certification, corporate social responsibility, and environment-society-governance programs, typically intertwined with governmental and intergovernmental regulatory programs.
Using forestry and climate change examples, this article analyzes key features of PER programs, how they may be growing empirically more binding despite their formally voluntary status, and their changing relationships with governments. It finds that PER’s pull on behavior appears to be growing but is subject to new political headwinds. The EU is moving to conscript PER to its ambitious regulatory purposes while the US remains ambivalent, and China manages it in a controlled way. Most other countries either passively accept or affirmatively deploy PER programs for their policy goals.
[Note: This paper is under preparation for the forthcoming Research Handbook on Environmental Regulation, edited by David Williamson, Gary Lynch-Wood and Agne Prochorskaite. Length constraints and citation format, along with the expansive topic, preclude citing a full complement of the excellent literature available on this subject. This article is a foundational step for ongoing work on the implications of rising authoritarianism and populism for transnational private environmental regulation.]https://digitalcommons.law.buffalo.edu/book_sections/1470/thumbnail.jp
Cancelling the Big Deal at a Public University: A Discussion of STEM Faculty Perceptions of Cancellation and an Examination of Post-Cancellation Usage Data
Full text linkThis article discusses how faculty, staff, and students at the University at Buffalo (UB), a public Carnegie R1 university, were impacted by the cancellation of the Elsevier ScienceDirect Big Deal package. After the cancellation, UB participated in a multi-site study which included interviewing faculty about the effect of the cancellation on their research and teaching. In general, the faculty were supportive of the cancellation. There was frustration expressed with the current structure of the publishing industry, particularly with the exorbitant pricing of journal subscriptions. Later analysis of usage data at UB post-cancellation was conducted; unsurprisingly, the data showed a decrease in usage on the ScienceDirect platform and increase in requests for unavailable articles. Although the cancellation of the ScienceDirect Big Deal package had a direct impact on UB, the initial outcome was not exceedingly harmful and could be addressed through mitigating measures such as the quick fulfilment of requests for unavailable articles
The Shaky Democratic Legitimacy of Cosmopolitan Law and Its Destiny in Times of Crisis
Full text linkFrom its earliest introduction in 1795, the notion of cosmopolitan law has made a long way, to finally become an established reference point in the legal discourse. Nonetheless, the concept still raises four fundamental questions. The first focuses on how it has been developed and which were the fundamental authors and theoretical steps that characterized the emergence of this notion. The second and most essential question refers to the meaning of cosmopolitan law by focusing on what characterizes the legal norms that we call cosmopolitan as well as on what distinguishes them from the broader field of traditional international law. The third question, then, concentrates on the challenges that cosmopolitan law faces with reference to its legitimacy. Indeed, since it binds on states beyond their explicit consent, legitimacy based on unanimity, which is the usual legitimation source that supports legal obligations in international law, is not available for cosmopolitan law. For that reason, its legitimation must resort to strategies which are similar to those applied to constitutional law, where the citizens’ support of the rules is implicitly assumed. However, some constitutional law strategies cannot be used for cosmopolitan law as a matter of principle, and all others are difficult to implement. The consequence is that the legitimacy of cosmopolitan law is inevitably weak—which does not mean, on the other hand, that it should be regarded as utterly illegitimate or that no reasonable solution can be envisaged. The fourth question, finally, addresses the feasibility of cosmopolitan law in times in which the idea of the existence of universal values seems to be in mortal danger
Dangerous Intellectual Property
No full textRviewing IP Accidents: Negligence Liability in Intellectual Property, by Patrick R. Goold, Cambridge University Press, 2022
The International Law of Siege and Starvation: The Case of Gaza After October 7, 2023
Full text linkThis article will assess the legality of Israel’s current siege of Gaza under international humanitarian law (IHL) and domestic Israeli law. Since October 7, 2023, Israel has implemented a strict siege of Gaza, severely restricting the entry of food, water, fuel, and other humanitarian goods. The civilian population of Gaza now faces ongoing starvation. While sieges are not categorically banned in IHL, under customary IHL a besieging party may not refuse consent to the entry of sufficient humanitarian aid into the besieged area unless it has a valid, non-arbitrary reason to do so. The Israeli High Court of Justice has upheld this customary norm as applicable to the Israeli government. This article will argue that the Israeli government has no valid, non-arbitrary reason to prohibit the passage of sufficient humanitarian aid into Gaza. The article concludes that Israel has thus far failed to meet its legal obligation under IHL because the small amount of aid it is allowing to enter Gaza is insufficient to prevent the mass starvation of Gazan civilians