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Virtual Water, Water Scarcity, and International Trade Law
Get PDFWe are facing a fresh water crisis during this century. In less than two decades, by 2030, the requirements for fresh water are expected to exceed the currently available and accessible fresh water supplies by 40%. Many countries are expected to be water stressed later in this century; some areas of the world already are. Some people may even lack water to meet basic human needs, such as drinking, washing, and sanitation. In rural areas in certain regions, people may lack water to grow good food crops, even for their own consumption. This has major implications for the welfare of the world’s population and for the integrity and violability of ecosystems
How the Supreme Court Uses the Certiorari Process in the Ninth Circuit To Further Its Pro-Business Agenda: A Strange Pas de Deux with an Unfortunate Coda
Get PDFThis Article examines the proposition that the Roberts Court has an unusually strong pro-business slant through the lens of the Court\u27s certiorari process. The Article uses data from the grant or denial of certiorari petitions filed in environmental cases over a sixteen-year period in both the Ninth and District of Columbia Circuits, selected because each court hears a large number of environmental cases. The recent record in the Ninth Circuit, where environmentalists win below only to lose in the high court, or lose below and subsequently have their petitions denied, is quite different from that in the D.C. Circuit. In the D.C. Circuit, during the same period, the high court has not reversed a single positive environmental decision issued below. In fact, over the same period, there is no instance of the Court granting a petition where environmentalists won in the D.C. Circuit. This Article explores the proposition that the Ninth Circuit has become a unique and useful foil for the Court\u27s conservative wing to advance its pro-business agenda through the manipulation of the certiorari process. The Article discusses various studies of the Roberts Court, which show that its decisions display a strong business bias, that the Court shapes its agenda through the certiorari process, and that the *654 personal policy objectives and preferences of individual Justices play a critical role in that process. The Article also illustrates how the Court\u27s selection of cases signals its preferences, which in turn influences the agenda of issue-oriented lawyers and thus the dockets of lower courts. This interplay has resulted in the Ninth Circuit playing an unusually important role in the evolution of environmental and natural resources law, as its decisions, which generally favor citizen plaintiffs challenging the authority of agencies to issue permits and engage in planning activities, attract the attention of the business-leaning Roberts Court. This conclusion becomes even more apparent when the contrasting types of plaintiffs and cases filed in the D.C. Circuit are brought to the fore. The Article concludes that there is little on the immediate horizon short of a dramatic change in Court personnel that foretells a change in that story. Finally, the Article holds out only the faintest of hopes that exposing this record may change the behavior of those Justices to whom institutional credibility and public acceptance retain some importance
What Would Zero Look Like? A Treaty for the Abolition of Nuclear Weapons
Get PDFNuclear disarmament-the comprehensive, universal, and permanent abolition of all nuclear weapons, pursuant to a verifiable, legally binding international agreement-has long been one of the most ambitious, controversial, and urgent items on the agenda for arms control. To date, however, most of the discussion of getting to zero has highlighted the political, military, technical and diplomatic dimensions of this complex problem, and there has been relatively little attention to the legal requirements for drafting such a novel treaty.
This Article fills that gap by offering two proposed agreements. The first, a non-legally-bindingfr amework accord, would be designedf or signature relatively soon (e.g., in 2015) to re-commit states to the goal of nuclear elimination and to energize their concerted individual and collective action on a set of prescribed steps in pursuit of it. The second, a legally-binding document, would be concluded at some point in the more distant future, when states had accomplished great reductions in their current nuclear arsenals and were ready, at last, to plunge forward to true abolition.
The Article describes the conditions necessary for the further articulation of these two novel agreements, and the text of each instrument carries numerous annotations that identify competing options, describe the negotiating range, and illuminate the drafter\u27s choices. The hope is that something novel can be gained-fresh insights can be suggested, and new questions can be raised (even if answering them remains elusive)-by advancing the dialogue about nuclear disarmament to the concrete stage of treaty drafting
E-Cigarettes, Vaping, and Youth
Get PDFE-cigarettes, a relatively new product, storming the tobacco industry are causing a massive stir among public health advocates. While e-cigarettes have the potential to serve as an effective harm reduction tool for existing smokers, they also may present an equally tempting pathway to first time smoking, particularly among youth. Many fear that e-cigarettes will revive the popular smoking culture that has taken decades to dismantle.
In April 2014, the FDA issued proposed rules to “deem” or extend its authority over tobacco products to regulate electronic cigarettes, cigars, pipe tobacco, nicotine gels, waterpipe (hookah) tobacco, and orally ingested dissolvable tobacco products. As proposed, FDA’s rules, among other things, would set a federal minimum age of 18 years to use e-cigarettes, require identification to purchase them (currently, just more than half of states impose age restrictions), prohibit most sales in vending machines, mandate warning labels on packaging, and prohibit manufacturers from providing free samples. Further, companies would be permitted to make claims for reduced risk only if the agency confirms the claim based on scientific evidence while also finding a benefit to the health of the public.
While the proposed rules represent a watershed moment in tobacco control, they still leave major regulatory gaps affecting the most vulnerable population, youth. FDA’s silence when it comes to the use of flavored nicotine and marketing practices is certain to have negative consequences for youthful smokers. The agency should move boldly and rapidly to prevent companies from exploiting youth. By bolstering the proposed rules to limit advertising and prohibit flavored nicotine, the agency could prevent proliferation of e-cigarette use among adolescents, while not undermining its regulatory goal of reducing harm. The public health community must speak with a clear voice to urge meaningful and effective regulation to protect US youth against the reinvention of Big Tobacco
Healthy Living Needs Global Governance
Get PDFIt may seem counter-intuitive, but the same factors that drive the spread of infectious diseases also contribute to the dominance of non-communicable diseases (NCDs) in the global burden of disease—urbanization, global markets and harmonized cultures. NCDs have overtaken infectious diseases as the leading cause of morbidity and premature mortality worldwide, with deaths concentrated among the poor due to the growing availability and affordability of highly-processed, unhealthy foods, alcohol and tobacco.
The global response to NCDs has been slow and fractured, with the World Health Organization dedicating scant funding and the United Nations waiting until September 2011 to hold a high-level summit on prevention—despite previously holding three summits on HIV/AIDS. Yet, researchers have identified a suite of cost-effective NCD prevention measures. While tobacco control provides a model for international and national regulation of NCD risk factors, there are significant barriers to further action in prevention, including industry lobbying against strong government regulation, philanthropic action favoring swift wins in infectious disease control, and the framing of NCDs as an individual rather than collective problem.
Stronger global governance could spur national action by providing funding, creating stronger norms and holding states accountable. The UN’s comprehensive review on progress in NCD prevention, held in July 2014, offered an opportunity for the international community to take concrete steps in strengthening global prevention efforts. This article proposes four concrete steps for a long-term solution: creating a dedicated fund for NCD control and prevention; regulating industry to improve nutrition and restrict alcohol and tobacco marketing; altering the built environment to promote physical activity; and prioritizing prevention in all sectors of government and in the global regimes that govern NCD risk factors. Only through these steps can we ensure healthy, more vigorous lives for the entire global community
Representation in Context: Party Power and Lawyer Expertise
Get PDFThe questions when, why, and how legal representation makes a difference for parties in civil litigation remain largely unanswered, although recent scholarship raises compelling new questions and suggests new explanations and theoretical approaches. Understanding how legal representation operates, we argue, requires an appreciation for the context in which the representation actually takes place. This article examines two previously unexplored elements of the context of legal representation through empirical and theoretical analysis: the balance of power between the parties to a dispute and the professional, specifically strategic, expertise that a legal representative contributes. The results of a study of 1,700 unemployment compensation cases in the District of Columbia’s central administrative court reveal two key findings. First, represented parties have better case outcomes than unrepresented parties, though employers–-the more powerful party to a dispute or the quintessential “haves”-–see less benefit from legal representation than claimants–-the less powerful party or the “have nots.” Second, represented parties are more likely to use procedures than unrepresented parties. Yet, surprisingly, represented claimants who use certain evidentiary procedures have worse case outcomes than represented claimants who do not use those same procedures. Thus, in attempting to answer the question of when, why, and how legal representation makes a difference, we argue that it depends on who the represented party is, who they are up against, and the expertise the representative brings
Is the United States Prepared for Ebola?
Get PDFThe West African Ebola epidemic is a humanitarian crisis and a threat to international security. It is not surprising that isolated cases have emerged in Europe and North America, but a large outbreak in the United States, with its advanced health system, is unlikely. Yet the handling of the first domestically diagnosed Ebola case in Dallas, Texas, raised concerns about national public health preparedness. What were the critical health system vulnerabilities revealed in Dallas, and how can the country respond more effectively to novel diseases in a globalized world
Civilians and Armed Conflict
Get PDFWe tend to view concern with the protection of civilians as a relatively recent development within the Security Council: a product of the late 20th century genocides and ethnic cleansing campaigns in Rwanda and the Balkans. But while it is indeed true that the Council’s first thematic resolution directly addressing “protection of civilians” was not passed until 1999—and also true, unfortunately, that Security Council civilian protection efforts have yet to move beyond the sporadic and inconsistent—the Council has always concerned itself with civilian protection. Indeed, the history of the Security Council itself (as well as the history of the United Nations as a whole) is in many ways inextricably interwoven with concerns about the protection of civilians during armed conflicts
What Makes a Homepage Effective – AALS 2014 Presentation
Get PDFAs the approach to website development is constantly evolving to accommodate the latest technology, what are the best practices in law school home page design? Speakers will include Roger Skalbeck, author of the annual Top 10 Law School Home Pages ranking, who will explain the methodology, analysis and trends related to the study, and Steven Barnes, who will share the award-winning approach used at Penn Law to earn accolades from key constituencies, tie for #1 in “The Top 10 Home Pages” and earn a 2013 Webby People’s Voice Award
Toward a Jurisprudence of the Civil Rights Acts
Get PDFWhat is the nature of the “rights,” jurisprudentially, that the 1964 Civil Rights Act legally prescribed? And, more generally, what is a “civil right”? Today, lawyers tend to think of civil rights and particularly those that originated in the 1964 Act, as antidiscrimination rights: our “civil rights,” on this understanding, are our rights not to be discriminated against, by employers, schools, landlords, property vendors, hoteliers, restaurant owners, and providers of public transportation, no less than by states and state actors, on the basis of race, gender, ethnicity, age, sexuality or disability. Contemporary civil rights scholarship overwhelmingly reflects the same conception: our civil rights are quasi-constitutional rights to be free of discrimination in the private as well as public world. But this conventional lawyerly understanding-–basically, that “civil rights” are “antidiscrimination rights”-–is clearly inadequate, certainly with respect to civil rights generally but also, and more tellingly, even with respect to the rights created and then protected by the ‘64 Act itself.
First, on the general point: some of the “civil rights” sought or held across our history have not been antidiscrimination rights of any sort at all: labor rights, welfare rights, free speech rights, and the constitutional rights of criminal defendants have all, at various times, been championed as “civil rights,” and these rights are neither logically nor jurisprudentially tied to any conception of antidiscrimination. But furthermore, even the “civil rights” which are defined and then protected against discrimination by the 1964 Civil Rights Act, as well as by various Civil Rights Acts both before and subsequent to it, are not, in circular fashion, simply our rights not to be discriminated against on the basis of impermissible characteristics. Rather, the “civil rights” of which we cannot be discriminatorily deprived, whether originating in the ‘64 Act or elsewhere, are, after all, rights to something: a right to vote, or to physical security, or to enter contracts, or to own, buy or sell property, or to legal recourse in the aftermath of a wrong committed against us, or to write a will, or to be considered for or to hold down a job and to be paid fairly for our labor, or to the use of a restaurant or a hotel or a city bus, or to a public education, or to marry whom we love. And, these are just some of the public goods that have been recognized at various times as “civil rights,” of which we cannot be deprived by discriminatory action.
Even if just that much is right, then the “civil right” protected by all of our Civil Rights Acts, including the ‘64 one, is considerably more complex, jurisprudentially, than the conventionally legalistic and formulaic equation of “civil rights” with “antidiscrimination rights” suggests. Minimally, the “civil right” recognized or protected by the various Civil Rights Acts is almost invariably a multilayered right, or a “right to a right”: it is a right to not be discriminatorily deprived of some underlying right. Only the first right in that phrase “a right to a right” is the antidiscrimination right. The second “right,” though, is the underlying civil right of which we cannot be discriminatorily deprived, and it is both itself complex, and highly variable: it might be a common law right, such as a right to enter contracts or sell property, or a statutory right, such as a right to vote, or simply a right to a social or public good, such as employment or educational opportunities, or the protection of a trustworthy police force against private violence. And, while we have generated a library of writing, and jurisprudence, and judicial opinions, on the nature of the first right in that phrase-–the right not to be deprived of various rights, on the basis of race, sex, and so forth-–we have devoted much less to the second: the nature of the underlying right of which we cannot be deprived. So, what is the jurisprudential nature of that right? What is a “civil right,” jurisprudentially, both with respect to the rights protected against discrimination by the Civil Rights Act of 1964, and more broadly? Again, and more generally, what is a “civil right”