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The Endangered Species Act at 50, Dialogue with Experts
No full textDecember 2023 marked 50 years since the Endangered Species Act (ESA) was signed into law. The ESA has proven resilient to numerous legal challenges and saved many species from extinction. But its overall success has been debated, as the list of endangered and threatened species continues to grow, and only 54 species have been taken off of the list completely. On October 26, 2023, the Environmental Law Institute hosted a panel of experts who explored the successes and shortcomings of the statute and discussed what might happen next as climate change increases the risk of extinction. This Dialogue presents a transcript of that discussion, which has been edited for style, clarity, and space considerations.
Madison Calhoun is Senior Manager of Educational Programs at the Environmental Law Institute (ELI). Sharmeen Morrison (moderator) is a Senior Associate Attorney in the Biodiversity Defense Program at Earthjustice. Derb Carter is a Senior Attorney with the Southern Environmental Law Center. J.B. Ruhl is David Daniels Allen Distinguished Chair in Law and Co-Director of the Energy, Environment, and Land Use Program at Vanderbilt Law School. Sean Skaggs is a Partner with Ebbin Moser + Skaggs LLP. William Snape III is Assistant Dean of Adjunct Faculty Affairs, American University Washington College of Law
Pressured Exit
No full textThis Article upends the traditional framing of the United States as a migrant-receiving country by examining a growing category of emigrant outflows: U.S. citizens who have been compelled to depart permanently because of conditions of vulnerability. Eschewing use of the generic term expatriate, this Article contends that these U.S. citizens are most accurately described as pressured migrants who have exited due to identity-based mistreatment, gaps in the social safety net, or concerns about deteriorating social and political conditions in the United States. By focusing on these departures, this Article aims to further theorize and provide a lexicon for a subtype of human mobility that lies at the interstices of refugee flows and lifestyle migration, somewhere between involuntary and voluntary migration. The Article presents a typology of U.S. citizen pressured migrants and catalogs the migratory vehicles they have used to gain entrance to other countries, including programs for diasporic descendants, retirees, and investors, as well as conventional immigration pathways. This Article also explores the prominent role that private immigration brokers play in facilitating exit from the United States. It concludes by examining the broader significance of these departures for scholarly debates about U.S. citizenship, the relationship between overseas citizens and the state, the influence of privilege and coloniality in migratory moves, and the creeping clout of the exit industry
Immigraft
No full textPursuing the American dream is a costly endeavor. From the initial journey to the United States, to navigating the complicated immigration system, to labor exploitation, to scams targeting recent arrivals, immigrants pay heavily into the formal and informal sectors. As explored in this Essay, however, their pay-out does not stop there: the U.S. Department of Homeland Security (DHS) also charges and retains funds in unjustified ways, resulting in tens of millions of dollars transferred from the pockets of vulnerable immigrants and their families to the sprawling immigration bureaucracy. This Essay introduces the term immigraft to capture this phenomenon, defined as the unjust transfer of funds from individuals to the state in the context of efforts to obtain immigration benefits or relief from the state.
This Essay highlights four examples of immigraft in the U.S. immigration system, describing how sub-agencies of DHS have illegally and/or unjustly retained funds in the context of biometric services fees, humanitarian parole applications filed by Afghan nationals, immigration bond for noncitizens in removal proceedings, and administrative appeals filed due to obvious agency mistakes. This Essay concludes by exploring theoretical implications of immigraft, including the normalization of extraction of value from noncitizens and its corrosive effect on the relationship among citizens, noncitizens, and the state. By way of a path forward, this Essay also offers practical recommendations to address immigraft through executive action and congressional oversight
Counterman v. Colorado: True Threats, Speech Harms, and Missed Opportunities
No full textSome Supreme Court cases amount, at their best, to missed opportunities. The Supreme Court’s recent case Counterman v. Colorado resolved, quite dubiously, one particular issue of mens rea. In the course of doing so, however, the Court ignored a variety of clearly presented issues of even greater significance.
The Counterman case involved a state court criminal conviction for issuing a true threat of violence, or more simply, a true threat. True threats, as defined and limited by the Court, comprise a narrow, traditionally constitutionally unprotected category of speech. Nevertheless, the majority in Counterman unnecessarily and unadvisedly extended a substantial measure of constitutional protection to issuing true threats. This result was obtained not through applying the overbreadth or vagueness doctrines, or by working through the logic and purposes of free speech, but by dubiously selecting and imposing a particular mens rea requirement in criminal true threat cases.
The constitutionally required mens rea was held, more specifically, to be that of a subjective level wherein the defendant must consciously understand the statement’s threatening nature and act with reckless disregard of the substantial risk of the speech being construed as a violent threat.6 More simply, the Court required what this Articles refers to as a “conscious reckless disregard” mens rea standard
Prosecuting Politicians
No full textThe laws of many countries grant politicians special protection from prosecution before national courts. The content of such laws is usually regulated by a compromise between two conflicting goals: On the one hand, the principle that everyone is equal before the law should be upheld. On the other hand, because politicians cannot fully dedicate themselves to their office when they are subject to legal proceedings, they should be protected more than regular citizens. What many seem to take for granted is that a trial of a senior politician, such as a prime minister or a president, does bad things to society. It deepens divisions between citizens and increases polarization in a way that is unhealthy for the democratic process. This Article seeks to challenge that intuition. Based on a series of comparative examples, the Article argues that prosecuting politicians improves public deliberation by getting people who would otherwise not engage in politics to take part in the political debate
Fan Works and the Elusive Border Between Derivative and Transformative Uses: A Fanfic Law Retrospective and an Optimistic Look Forward
No full textThe scholarly discourse on fanfic and other fan works emerged over a decade ago as a niche topic mostly of interest to fans. It has since generated dozens of articles and a small but steadily increasing amount of litigation. When the subject was new, each article had to begin with an explanation of what fan works are, why fictional characters are or are not protected by copyright, and how parody and fair use are related. This Article seeks to place a capstone on the author’s work during that early era of fanfic scholarship and to move the discourse forward by providing a brief review of foundational issues and previous work in the field before looking to new developments and making hopeful predictions for the future of the law governing fan works.
The Article first discusses the fundamental challenge of delineating the border between derivative and transformative uses and then addresses the rights that must be balanced by the law regulating fan works: those of authors and those of consumers/fandom. Copyright law primarily protects the economic rights of authors, but this protection is essentially static; the Article argues that fan works can act dynamically to save the underlying originals from becoming dated or being dragged down by the original author, and copyright law, as it evolves, should acknowledge the cultural interest thus protected. Future developments in copyright law must consider the need for a system of shared and limited copyright, address past cultural appropriation by authors and related harms, and look beyond the flaws of individual authors and toward the fandom as a whole. The Article ultimately suggests that the recognition of a shared common area for creativity between authors and fans can not only benefit fans but also authors, both economically and in non-quantifiable ways
Scrutinizing the Bathroom Binary: Equal Protection Theories for Nonbinary Students
No full textOver the past decade, transgender students have challenged discriminatory school bathroom policies under the Equal Protection Clause with varying success. But another group of students, facing similar discrimination, has yet to see its day in court. Like their transgender peers, nonbinary students often lack access to gender-appropriate restrooms at school. Many K–12 schools offer only “boys” and “girls” restrooms, ignoring the needs of students who identify as neither boys nor girls, as both of those genders, or as something else entirely. Forced to use sex-segregated bathrooms (or no bathroom at all), nonbinary students suffer adverse health, safety, and educational outcomes. To illustrate pathways to relief, this Note provides an inventory of equal protection claims nonbinary students can make to challenge discriminatory bathroom policies. Each theory—alleging unconstitutional discrimination on the basis of sex, transgender status, or nonbinary status—is promising and limited in its own respect. Independently or together, these theories can support a viable equal protection challenge that triggers heightened scrutiny
