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Large Constellations of Small Satellites: The Good, the Bad, the Ugly, and the Illegal
Full text linkThe most exciting and far-reaching contemporary developments regarding human activities in outer space arise from the recent drastic reductions in the costs of building, launching, and operating satellites, and from the concomitant sudden emergence of large constellations of small, inexpensive, privately-owned spacecraft. These satellites--devoted to highly remunerative functions such as communications (bringing high-speed, affordable internet to underserved constituencies), remote sensing (facilitating land use planning, weather forecasting, and emergency search and rescue), and support for military operations (in Ukraine and elsewhere)--already number in the thousands and will soon reach the tens of thousands.
But in addition to generating billions of dollars of revenue, these new constellations also raise a series of profound and unprecedented legal, economic, and social problems. The first concerns congestion of the most favored low-altitude orbital slots and the associated dangers of interference, collisions, and debris. This is a classic “tragedy of the commons,” where each participant is incentivized to exploit a shared resource too intensively, without husbanding it for the longer term. A second problem arises from the interference that the new satellite swarms cause for astronomy. An overflying satellite will disrupt an observatory\u27s ability to peer into far-distant space in pursuit of scientific discoveries. The satellite\u27s passage leaves an obnoxious white streak across the telescope\u27s images, obscuring the effort to collect and interpret faint data. Third, the growing armada of private satellites is increasingly used for military and intelligence purposes, obliterating the fundamental requirement under the longstanding international law of armed conflict to preserve a vital “distinction” between military and civilian objects and to achieve physical “separation” between those types of assets.
This Article examines the growing number of soon-to-be-ubiquitous constellations of small satellites and the three aforementioned special problems they pose. It also suggests some legal reforms to combat the dilemmas and temper an otherwise dangerous renewal of an unconstrained and unproductive international race to space. Among the recommendations are a call for the prompt development of additional legally-binding and non-legally-binding standards for allocating orderly access to shared space, measures of accommodation for rivalrous users of space, and greater separation of military and civilian space assets
Addressing the Negative Externalities of Trade: Flanking Policies and the Role of Package Treaties
Full text linkThis article examines the rationales for addressing sustainability and social inclusion in trade policy and the tradeoffs among imperfect institutional choices in doing so through “flanking policies.” It examines three types of negative spillovers or externalities implicated by trade: material, moral, and social/political. Part I defines terms and sets forth the argument. Part II typologizes the three categories of negative externalities and then highlights the challenges posed for flanking measures given the reciprocal nature of externalities. It respectively addresses environmental harms and labor and social inclusion concerns. Part III assesses different institutional choices for addressing negative externalities, dividing them between domestic measures targeted at protecting domestic concerns and international ones, such as package treaties. Part IV shows how the concept of a flanking measure can be flipped, so that environmental sustainability and social inclusion become the core and trade measures the flanking policies. Part V concludes
Prior Racist Acts and the Character Evidence Ban in Hate Crime Prosecutions
Full text linkThe killing of unarmed African-American Ahmaud Arbery and others ignited a wave of public outrage and re-focused attention on race and the criminal justice system. During the recent federal hate crimes proceedings for Arbery’s death, the prosecution introduced evidence relating to the alleged past racist acts of the defendants. This type of evidence may be seen as highly probative and desperately needed to do justice in hate crimes cases. On its face, however, such type of evidence appears to be inadmissible owing to the well-known—but little understood— evidentiary ban on character evidence prescribed in Federal Rule of Evidence 404(b) and its state and common law analogues. The present article suggests there may be an escape from this conclusion that the evidence is inadmissible under the rule. Rule 404(b) is one of the most confused and controversial of the evidence rules. The clarifications we provide herein are sorely needed, particularly as respects evidence of racism. Attorneys and courts are increasingly being called upon to deal with the admissibility of a criminal defendant’s prior racist acts because of intensifying public scrutiny of race cases and FBI statistics revealing there were more than eight thousand hate crime incidents in 2020. This Article addresses whether, when, and how past acts exhibiting racism—what we will call “racist character evidence”—may be admissible in hate crimes cases consistently with 404(b). We examine seven gateways through which such evidence may be offered, at least some of which provide in our view a permissible path to admissibility. We hope to generate a robust academic debate on admissibility of racist character evidence and to supply guidance to courts and attorneys involved in these and related cases
Establishing a Perinatal Medical-Legal Partnership to Address the Health-Harming Legal Needs of Pregnant and Postpartum Birthing People
Full text linkThis Report from the Field chronicles the establishment of Georgetown University’s Perinatal Legal Assistance and Wellbeing Project, a medical-legal partnership in Washington, D.C. It describes foundational steps, implementation strategies, and lessons learned, and reflects on impacts of addressing the unmet legal needs of birthing individuals
Just What Are You Trying to Prove? The Relevance of History to Constitutional Theory and Practice
Full text linkThe Crime of Aggression: Its Nature, the Leadership Clause, and the Paradox of Immunity
Full text linkThe paper, written for a research handbook, critically surveys some fundamental philosophical, historical, and doctrinal issues in the crime of aggression. The two introductory sections set the theoretical issues in the context of Russia’s invasion of Ukraine, and explain the origins of criminalizing aggression under the heading of “crimes against peace.” Section 3 explores an ambiguity between aggression as first use of force and aggression as unprovoked use of force, while section 4 discusses the doctrinal distinction between acts of aggression and wars of aggression.
Sections 5 and 6 turn to the theory of aggression. Section 5 examines modern versus early modern just war theorists’ views of just cause. Section 6 explores various theories of what exactly makes aggressive war so evil that it belongs in the pantheon of core crimes, side by side with genocide, crimes against humanity, and other war crimes. The basic question is whether aggression is fundamentally a crime against states, a crime against human rights, or a crime against peace itself. I reject the first, statist, version, and endorse the human rights version. I examine three versions of the view that aggressive war is fundamentally about its human costs: that aggressive wars lead to atrocities (Trainin); that aggressive wars lead more generally to unjustified killings (Dannenbaum); and that aggressive wars lead to both unjustified killings by the aggressor, and to unnecessary killings that include the justified killings of aggressors’ troops by defenders (Mégret). As for crimes against peace, I argue that this theory of aggression’s evils comes in two “flavors,” one of which has justly been criticized by postcolonial writers, and one of which I think is legitimate. The former originates in Judge Pal’s famous dissenting opinion in the IMTFE, and argues that criminalizing aggression is a move by colonial powers to freeze the oppressive status quo. The more legitimate version is that in an age of catastrophically destructive weapons, the risks of escalation in armed conflict –the threat that conflicts will spiral into world wars–are simply too great in human terms. Thus, the legitimate version of “crimes against peace” is part and parcel of the human rights analysis.
The final sections break new ground. Section 7 considers whether aggression is solely a leadership crime. Everyone agrees that it would be wrong to punish ordinary soldiers for the crime of aggression launched by their leaders. The questions is why, and it is not easy to answer. Examining it brings us to a contemporary dispute over which leaders can be prosecuted: only those who control or direct the aggressive policies (as per the ICC’s Rome Statute), or others as well, who “shape or influence” the policy without necessarily directing it (as the customary rule used to be formulated). I argue against any narrowing of the leadership clause.
Section 8 explores the “paradox of immunity”: Under the legal principle of sovereign immunity, apex leaders are immune from prosecution in the courts of another state. But under the narrow leadership clause, only apex leaders can be prosecuted. Here I argue for a surprising conclusion: that in fact there never was a customary rule of immunity for the crime of aggression. If so, the paradox of immunity disappears. This resolution also helps cut the Gordian knot of a current debate about whether a relatively small subset of states (the EU, perhaps) can form an aggression tribunal and call it “international.
\u3ci\u3eLoper Bright\u3c/i\u3e in a Larger Interpretive Perspective: Is This Justice Scalia’s Court Anymore?
Full text linkLoper Bright Enterprises v. Raimondo has left administrative lawyers agog: Could the Supreme Court really reverse the “goliath” known as Chevron deference? For those who study the Court’s interpretive landscape more broadly, however, Chevron reversal may not be as unexpected as administrative lawyers believe. This Article will look at Loper Bright by linking three notable interpretive developments: the major questions doctrine, Chevron skepticism, and strict constructions of statutory text. These developments share the same risk: the Court is imposing a new “clarity tax” on both Congress and administrative agencies. Having said this, others’ grave worries about changes in Chevron are misplaced; the administrative state will not disappear even if Chevron does. This Article will urge readers to think more broadly than Chevron and consider larger trends of interpretive practice on the current Supreme Court
Updating Senator Borah: A Nuclear Kellogg-Briand Pact
Full text linkIn recognizing the legacy of Senator William E. Borah, the author shares his remarks from the Borah Symposium at the University of Idaho, about the Senator\u27s personality and character, his contribution and later characterization to international law and national security, specifically the 1928 Kellogg-Briand Pact, and finally, a proposal to a modern reincarnation to the Kellogg-Briand Pact and the newer threats of this era
What It Takes to Write Statutes that Hold the Firearms Industry Accountable to Civil Justice
Full text linkThis Essay defends statutes creating public nuisance and consumer protection causes of action against firearms industry actors for their failure to take reasonable measures to control the flow of their products to criminal users. Such laws are predicate statutes under PLCAA and do not infringe the Second Amendment
Textualism in Practice
Full text linkIt is by now axiomatic to note that textualism has won the statutory interpretation wars. But contrary to what textualists long have promised, the widespread embrace of textualism as an interpretive methodology has not resulted in any real clarity or predictability about the interpretive path—or even the specific interpretive tools—that courts will invoke in a particular case. Part of the reason for this lack of predictability is that textualism-in-practice often differs significantly from the approach that textualism-in-theory advertises; and part of the reason is that textualism-in-theory is sometimes in tension with itself. In light of textualism’s ascendance—and now dominance—on the modern Supreme Court, it is time for scholars and jurists to grapple with these theoretical tensions and points of divergence between textualist interpretive theory and practice.
This article provides the first empirical and doctrinal analysis of three central fault lines, or places where modern textualist interpretive practice diverges—sometimes sharply—from textualist interpretive theory. Based on 637 cases decided during the Roberts Court’s first fifteen-and-a-half terms, this article highlights three surprising textualist fault lines: (1) first, while textualism-in-theory seeks to limit the universe of acceptable interpretive resources upon which judges rely, textualist interpretive practice is decidedly pluralist, as a clear majority of the Court—including all of the Justices widely considered to be textualists—regularly references several interpretive tools that textualism-in-theory rejects; (2) second, while textualism-in-theory insists that statutory terms be given their date-of-enactment or “original public” meaning, textualism-in-practice regularly uses present-day sources to determine statutory meaning; and (3) third, while textualism-in-theory emphasizes the meaning that statutory terms have in everyday conversational speech, textualism-in-practice relies heavily on sophisticated legal doctrines and constructs. These findings hold true even if we focus exclusively on data from the Court’s most recent 2017-2020 terms, during which the Court’s composition has skewed lopsidedly textualist.
After chronicling these divergences between textualist theory and practice, the article considers and rejects the possibility that they may be attributed merely to faint-hearted judicial application of textualism and that they should be resolved through more disciplined adherence to textualist principles. Instead, the article suggests that textualist interpretive theory may actually be inherently contradictory in ways that give rise to these interpretive divergences; for example, textualism’s commitment to stability may be in tension with its commitment to predictability and fair notice. In the end, the article offers some suggestions for how textualist theory might evolve to both reconcile these internal contradictions and to better account for how textualism actually is practiced on the ground