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The Public Trust Doctrine, Outer Space, and the Global Commons: Time to Call Home ET
Get PDFSpace exploration is heating up. Governments and private interests are on a fast track to develop technologies to send people and equipment to celestial bodies, like the moon and asteroids, to extract their untapped resources. Near-space is rapidly filling up with public and private satellites, causing electromagnetic interference problems and dangerous space debris from collisions and earlier launches. The absence of a global management system for the private commercial development of outer space resources will allow these near space problems to be exported further into the galaxy. Moreover, without a governing authority or rules controlling entry or limiting despoliation, outer space could turn into the “Wild West” of the twenty-first century.
Space treaties executed in the last century espoused the principle that space should be developed for the benefit of all mankind and banned both private ownership and militarization of space resources. But, they left development of a system for managing non-military activities in outer space to another day. Private commercial interests, which would be absorbing the risks and paying the high costs of space development, oppose any management scenario premised on that principle, as it would enable less developed countries to free ride on their investments. These interests, unsurprisingly, support privatizing outer space. But acceding to their wishes by establishing a system of property-based rules would transport Earth’s current division between haves and have-nots into outer space, and could lead to destabilizing hostilities--the exact consequences that the early treaty drafters hoped to avoid.
To date, most scholars in this area have focused on developing management systems premised on private ownership or possession of the surface of some celestial body. This Article explores an alternative concept, the commons, in which no individual owns the property in question or can exclude others from it. Viewing property as a commons is closer to the principles set out in the various space treaties than implementation of a private property regime, and also offers a workable property regime. This Article demonstrates these conclusions by showing similarities between a large, Earth-bound commons, like the ocean and outer space, and how various commons management scenarios allow equitable use of resources, while preventing their despoliation and devolution into hostile disputes over entitlements to them. However, each of these commons management scenarios is flawed in some way and runs a similar risk to management approaches for private property of allowing the resource to be over-used or inequitably distributed.
The public trust doctrine (PTD), an ancient doctrine that governments and individuals have used effectively for centuries to protect the public’s interests in terrestrial common pool resources (CPR) and to fill regulatory gaps, can be helpful in both respects. An examination of the doctrine identifies commonalities between outer space and terrestrial public trust resources. The ease and low cost of its implementation and enforcement, as well as its infinite malleability, are additional reasons to select it as a stopgap measure with some modification
WTO’ing a Resolution to the China Subsidy Problem
Get PDFThe United States, European Union, and Japan have begun a trilateral process to confront the Chinese economic model, including its use of industrial subsidies and deployment of state-owned enterprises. This paper seeks to identify the main areas of tension and to assess the legal-economic challenges to constructing new rules to address the underlying conflict. It begins by providing a brief history of subsidy disciplines in the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO) predating any concerns introduced by China. It then describes contemporary economic problems with China\u27s approach to subsidies, their impact, and the apparent ineffectiveness of the WTO\u27s Agreement on Subsidies and Countervailing Measures (ASCM) to address them. Finally, it calls for increased efforts to measure and pinpoint the source of the problems – in a manner analogous to how the Organization for Economic Cooperation and Development (OECD) took on agricultural subsidies in the 1980s – before providing a legal-economic assessment of proposals for reforms to notifications, evidence, remedies, enforcement, and the definition of a subsidy
Reimagining Trade Agreements for Workers: Lessons from the USMCA
Get PDFA backlash against the post-Cold War order of liberal globalization has taken hold in the rich North Atlantic countries. Concerns about wages, working conditions, and economic opportunity are central to the critique of international trade agreements of the last three decades. While labor rights have progressively been included in trade agreements, they have done little to reshape workers’ well-being and workplace conditions. The new United States-Mexico-Canada Agreement (USMCA) may signal a pivot to a new model requiring reforms of domestic labor law and other issues important to workers. However, there is much more to be done to rebalance the power between capital and labor in trade agreements. In addition, for the United States and other rich countries, reform at home may be equally important
Functional Equivalence and Residual Rights Post-\u3cem\u3eCarpenter\u3c/em\u3e: Framing a Test Consistent with Precedent and Original Meaning
Get PDFThe Carpenter Court held that warrantless access to seven or more days of cell site location information (CSLI) constitutes a violation of the reasonable expectation of privacy that individuals have in the whole of their physical movements. But the grounds on which the Court drew a line characterize all sorts of digital records—including those at issue in Miller and Smith, belying the majority’s claim that the decision leaves third-party doctrine intact. Instead of avoiding Katz’s pitfalls, moreover, the Court emphasized voluntary assumption of risk, doubling down on the subjective nature of judicial determination. The decision will likely lead to further chaos and fragmentation. To take account of the significant challenges ahead, this article proposes that, going forward, courts eschew voluntary assumption of risk. An outgrowth of open space and informant doctrines, the approach imported analogical fallacies into the Court’s jurisprudence and ignored the implications of new technologies. Instead, the Court should return to a property-based approach and extend the rule of functional equivalence, which already characterizes home and border searches, to digital papers. In ascertaining who owns digital documents and records, the Court can employ a but for analysis, asking whether the material would exist but for the right-holder’s actions. To determine whether, by providing access to information, the right-holders divest themselves of their ownership interest in the data, as Justice Gorsuch recognized in Carpenter, the law of bailment and positive law can play a crucial role. English common law has long recognized that possession is insufficient to extinguish a property owner’s residual rights. The approach advocated has the advantage of clarity, adaptation to the modern world, and the restoration of core Fourth Amendment rights protected at the founding
Turning Privacy Inside Out
Get PDFThe problem of theorizing privacy moves on two levels, the first consisting of an inadequate conceptual vocabulary and the second consisting of an inadequate institutional grammar. Privacy rights are supposed to protect individual subjects, and so conventional ways of understanding privacy are subject-centered, but subject-centered approaches to theorizing privacy also wrestle with deeply embedded contradictions. And privacy’s most enduring institutional failure modes flow from its insistence on placing the individual and individualized control at the center. Strategies for rescuing privacy from irrelevance involve inverting both established ways of talking about privacy rights and established conventions for designing institutions to protect them. In terms of theory, turning privacy inside out entails focusing on the conditions that are needed to produce sufficiently private and privacy-valuing subjects. Institutionally, turning privacy inside out entails focusing on the design, production, and operational practices most likely to instantiate and preserve those conditions
The Declaration of Independence and the American Theory of Government: “First Come Rights, and Then Comes Government”
Get PDFThe topic of this panel is the Declaration of Independence, to which I devoted a chapter of my recent book, Our Republican Constitution. I want to draw on that book to make five points
Health Care Costs and the Arc of Innovation
Get PDFHealth care costs continue their inexorable rise, threatening America’s long-term fiscal stability, competitiveness, and standard of living. Over the past half-century, efforts to rein in spending have uniformly failed. In this Article, we explain why, breaking with standard accounts of regulatory and market dysfunction. We point instead to the nexus of economics, mutual empathy, and social expectations that drives medical innovation and locks in low-value technologies. We show how law reflects and reinforces this nexus and how and why health-policy-makers avert their gaze.
Next, we propose to circumvent these barriers instead of surmounting them. Rather than targeting today’s excessive spending, we seek to leverage available legal tools to bend the arc of innovation, away from marginally-beneficial technology and toward high-value advances. To this end, we set forth a novel, value-based approach to pricing and patent protection—one that departs sharply from current practice by rewarding innovators in proportion to the therapeutic benefits new tests and treatments yield.
Using cancer therapy as an example, we explain how emerging information technology and large troves of electronic clinical data are opening the way to near-real-time assessment of efficacy. We then show how such assessment can power ongoing adjustment of pricing and patent terms. Finally, we offer a blueprint for how laws governing health care payment and intellectual property can be tailored to realize this value-focused vision. For the reasons we lay out, the transformation of incentives we urge will both slow clinical spending growth and greatly enhance the social value that this spending yields
On Being Old Codgers: A Conversation about a Half Century in Legal Education
Get PDFThis conversation, conducted over three evenings, captures some of our thoughts about the last half century of legal education as both of us near retirement. We have edited the conversations so as to eliminate verbal stumbles and present our ideas more coherently, slightly reorganized a small part of the conversation, and added a few explanatory footnotes. However, we have attempted to keep the informal tone of our discussions
State Abortion Restrictions and the New Supreme Court: Women’s Access to Reproductive Health Services
Get PDFThe US Supreme Court’s landmark 1973 ruling in Roe v Wade established a privacy right to choose abortion. In 1992, Planned Parenthood of Southeastern Pennsylvania v Casey reaffirmed Roe with the Supreme Court calling reproductive decisions “the most intimate and personal choices a person may make…central to personal dignity.” Casey allows abortion regulations, but states cannot impose an “undue burden,” where the law’s “purpose or effect” places a substantial obstacle in a woman’s path in accessing an abortion previability.
State abortion restrictions—meaning laws that restrict whether, when, and under what circumstances a woman may obtain an abortion—increased in the aftermath of Roe and Casey. The Supreme Court is unlikely to review bans on abortion under all or most circumstances but appears poised to incrementally uphold multiple restrictions, including those that affect the medical procedures, health professionals and institutions, decision-making, and funding involved in the provision of abortion services.
This article explores how these restrictions would limit the affordability of or access to abortions, undermine trust in the patient-physician relationship, and jeopardize women’s health, emotional well-being, and dignity. It also examines how they would disproportionately affect already disadvantaged and underserved women, raising concerns about equity and justice
Examining How Federal Infrastructure Policy Could Help Mitigate and Adapt to Climate Change: Hearing Before the H. Comm. on Transp. & Infrastructure, 116th Cong., Feb. 26, 2019 (Statement of Vicki Arroyo)
Get PDFAs the Fourth National Climate Assessment, released in November, describes, the United States is already experiencing serious impacts of climate change—and the risks to communities all across the country are growing rapidly.
These findings, along with those in the 2018 Intergovernmental Panel on Climate Change (IPCC)report, are clear and should be a call to immediate action. Even if we manage to limit planetary warming to just 2 degrees C, the world will still face increased chances of economic and social upheaval from more severe flooding, droughts, heatwaves, and other climate impacts as well as devastating environmental consequences, the IPCC report warns.
The scientific consensus as described in the IPCC Special Report is that countries around the world must rapidly decarbonize their economies, cutting greenhouse gas emissions in half by 2030 and to near zero by 2050.
Yet the current trends are going in the wrong direction. Despite our increasing understanding of the narrowing window to act, U.S. GHG emissions increased by 3.4% in 2018, according to a January report from the Rhodium Group. Clearly more action is needed.
The encouraging news is that many states and cities have committed to taking action. They are taking steps to reduce emissions through legislation, executive orders, and pledges made in collaborations such as the US Climate Alliance –now covering roughly half the US population and GDP.
In my testimony, I will be focusing on the transportation sector, which is the largest contributor of GHG emissions in the United States, and is already facing significant impacts from climate change.
Federal standards have been important in increasing efficiency and reducing emissions, yet transportation-sector emissions are increasing as more vehicle miles are driven, more freight is transported in trucks, and airline travel continues to grow. Transportation is becoming an increasingly large share of U.S. economy-wide emissions as the power sector decarbonizes as a result of market shifts and policy.
There is an urgent need, therefore, to transition to a low-carbon transportation system. Such a transition would not only reduce emissions and fight climate change, it also would bring additional important benefits, including protecting public health by reducing conventional air pollution, providing more mobility options, and driving innovation and economic growth through policy action and through public and private investment