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Pacific Islands and the U.S. Military: The Legal Borderlands of the Environmental Movement
No full textClimate change remains an urgent, ongoing global issue that requires critical examination of institutional polluters. This includes the world’s largest institutional consumer of petroleum: the United States military. The Department of Defense (DoD) is a massive institution with little oversight, a carbon footprint spanning the globe, a budget greater than the next ten largest nations combined, and overly generous exemptions to environmental regulations and carbon reduction targets. This Comment examines how this lack of accountability and oversight plays out in the context of three Pacific islands that have hosted U.S. military bases for decades. By considering the environmental impact of military bases on Okinawa, Guam, and Hawai’i, this Comment reveals how the DoD has continually bypassed environmental responsibility through favorable basing agreements with foreign nations that minimize U.S. liability for environmental cleanup, by building bases on unincorporated territories where civilians do not have full constitutional rights, and by obfuscating the true nature of environmental contamination to the public. As a result, environmental laws—and their enforcement by the EPA—are severely undermined. This Comment concludes by offering recommendations to address the root of the U.S. military’s environmental impact in its overseas bases by strengthening the EPA’s authority to enforce environmental laws at military bases, eliminating the military exemptions to the Clean Air and Clean Water Acts, employing the BRAC process to shrink the DoD’s bloated footprint, and giving full autonomy to Pacific Island nations
Facts on Trial: Alliance for Hippocratic Medicine v. FDA and the Battle over Mailed Medication Abortion
No full textCarbon Pricing for a Just Transition
No full textThe legal tools to avoid the potential disasters of climate change are already available, at least according to economists. Economists overwhelmingly prefer carbon pricing tools like carbon taxes and cap-and-trade programs to combat climate change and guide the energy transition. Carbon pricing is more cost effective at lowering carbon and other greenhouse gases (GHGs) than other legal options such as efficiency standards, renewable portfolio standards, subsidies, and tax credits and deductions. Unlike those other options, carbon pricing targets both the supply of and the demand for GHG-emitting products and services; moreover, it gives firms and consumers flexibility in how best to respond to the tax or the cap, whether by conserving more or switching to alternatives. For the most part, however, U.S. lawmakers have eschewed carbon pricing in favor of the less-effective and more-costly non-pricing alternatives. The preference is due in large part to concerns over the distributive implications of carbon pricing, namely that it would result in an unjust energy transition. Many scholars, policymakers, and environmental justice advocates worry that since carbon pricing by design raises energy prices, it will disproportionately burden the poor, who spend a greater share of their budget on energy. They also worry that carbon pricing will disproportionately benefit the rich, such as through capital tax swaps or grandfathered emissions permits. Numerous recent economic studies have addressed the distributional implications of pricing and non-pricing climate policy instruments, yet those studies have received limited attention from legal scholars. Nor have economists compared and contrasted the distribution of pricing with non-pricing policies. This Article therefore surveys those economic analyses to show that a just transition is possible with carbon pricing. First, the United States currently relies on non-pricing policies that are themselves unjust: performance standards add costs that impose a disproportionate burden on the poor while subsidies and tax expenditures primarily benefit the rich. Carbon pricing can displace many of these laws and thereby eliminate their unjust impact. Second, the cost burden and regressivity of carbon pricing are overstated, so the impact on the poor will likely be much lower than commonly assumed—and might even be progressive for the poorest households because of the indexing of government transfers. Third, the ways in which revenues raised from carbon pricing are recycled play an important role: lowering other distortionary taxes like those on capital while allocating some money for government transfer programs and lump-sum rebates to the poorest households can balance efficiency and equity. This Article therefore argues that concerns over a just transition should not be a barrier to implementing carbon pricing, which is the most efficient and effective means for lowering GHGs and thus avoiding the harms of climate change
A First Amendment Failure: Surrendering to Science Misinformation for Bioengineered Foods
No full textGovernment-compelled commercial disclosures are not unfamiliar to consumers. Common labels include nutrition facts and ingredient information. The National Bioengineered Food Disclosure Standard, which took full force at the start of 2022, is of a different nature. The new law requires all manufacturers, all importers, and certain retailers of bioengineered foods to disclose on the food’s packaging that it has been produced with bioengineering technology. Even so, a large swath of the public is ignorant of “bioengineering’s” true meaning and bioengineering technology’s true quality. The politically charged and fact-lacking debate on bioengineered foods renders this standard an impermissible coercion of speech in violation of the First Amendment. If stricter regulation of potentially harmful food products is truly desired, a more appropriate target for compelled disclosure is pesticide use. Using science communication principles and factual information on the outcomes of bioengineered foods as a backdrop, this Note argues against the labeling of bioengineered foods and for alternative pesticide disclosures
Contract Customization, Sex, and Islamic Law
No full textCommon law has historically deemed marriage and sex outside the right to contract. Yet, couples increasingly use contracts to provide legal rights to the unmarried in a variety of contexts ranging from same-sex relationships to surrogacy. Islamic law, on the other hand, has always conceived of marriage and sexual relationships as exclusively under the realm of contract law governed by private actors. This Article brings Islamic law into the larger conversation on the use of contracts for sexual and relationship agreements. It further proposes that Islamic law has something to offer Muslims and non-Muslims alike by empowering individuals to use contracts to develop romantic, sexual relationships.
Islamic law requires formalized consent to sexual relationships by way of contracts that include duties, rights, and termination provisions. This Article examines the contract options under Islamic law that allow for licit sex between parties, such as urfi (customary), misyar (pleasure), and mut‘a (temporary) contracts. This Article then explores the options couples have in customizing contracts, such as adding specific termination provisions, to best meet their relationship needs. Islamic law allows for the private termination of a marriage without a governmental actor. Rather than requiring a governmental actor to terminate the relationship or presuming marriage to be a nearly or completely irrevocable commitment, spouses can contract to allow both parties to unilaterally end the relationship. Finally, this Article discusses the ways contemporary reform proposals could reshape the way couples use contracts. Specifically, couples may want to structure their contracts as a partnership agreement, and in doing so, they may more easily capture the type of relationship they want to create rather than modifying default provisions to traditional contracts.
In short, options exist in Islamic law for individuals to create legally binding contracts that reflect the relationships they intend to co-create in accordance with their moral and legal commitments
Tax-Funded Education Savings Account Payments to Religious Schools Violate State Constitution Compulsion Guarantees: the Iowa Example
No full text[...] This Article makes the unremarkable and conservative argument that the transfer of public funds to religious schools under Iowa’s education savings account program violates the Iowa Constitution’s compulsion guarantee.
We start by looking at the Iowa compulsion guarantee, including a review of the Iowa authorities which have construed it, the historical record and setting of its adoption, and the history of its New Jersey antecedent. We then introduce the education savings account mechanism by which Iowa’s religious schools stand to receive more than a third of a billion dollars annually by FY 2027. After that, we consider whether education savings account transfers of public funds to religious schools are constitutional under Iowa’s compulsion guarantee, specifically considering three questions framed by the relevant authorities: first, are the religious schools ministries and are their teachers ministers?; second, do the religious schools teach their students religion?; and third, are the religious schools pervasively religious? We then consider the application of the compulsion guarantee to the education savings account program in light of the Supreme Court’s ruling in Carson v. Makin. We conclude by asking where we go from here.
This abstract has been taken from the author\u27s introduction
Rethinking the No-Duty Rule: How DeShaney Can Be Reformed to Enable Objective, Coherent Analysis and Protection for More Victims of Crime
No full text“Failure-to-protect” cases, situations in which crime victims do not receive reasonably relied-upon police protection, receive troubling treatment under the law. This problem originated with the Supreme Court case DeShaney v. Winnebago County Department of Social Services, which held that litigants cannot bring a substantive due process claim for failure-to-protect cases. In doing so, the Court espoused a distinction between state action and inaction that relied upon unsound assumptions about state obligations and paltry factual analysis. DeShaney is troublesome because it provides only two situations in which failure-to- protect cases can be successful: physical, involuntary police custody and the state-created-danger doctrine. These exceptions are too narrow; they exclude the frequent situations in which police officers fail to carry out their duties when they are a severely injured victim’s only possible source of protection.
This Comment proposes two methods for providing more protection to victims who are faced with imminent violence and thus rely on police presence. One approach is to expand the custody exception past considerations of whether a victim is in physical custody and to account for the facts of the victim’s situation and reasonable police knowledge of those facts. A more drastic approach would be overturning DeShaney and replacing it with a dereliction-of-duty standard that considers steps the police took in handling a victim’s case and the effects of their inaction. The legal realm will benefit from standards that eschew the DeShaney Court’s misguided attempts at categorizing police conduct as action or inaction and clarify police obligations through fact-specific analysis
NDLS Communicator: Week of 04.29.24
No full textThe Latest News Notre Dame Law School and University of Cape Town establish historic partnership Fitzgerald Institute\u27s Church Properties Initiative and Notre Dame Law School Host Affordable Housing Discussion with Rev. Patrick Reidy, C.S.C. Notre Dame Law School celebrates outstanding third-year students at Champions for Justice Reception Patrick Corrigan\u27s new article, \u27ES\u27 Versus \u27G\u27 in Corporate Governance: You Can’t Have It All, was featured in the Harvard Law School Forum on Corporate Governance. Emily Bremer wrote a blog post for Notice & Comment on FTC rulemaking and the attorney general\u27s committee on administrative procedure. Sam Bray\u27s research and writings about universal injunctions were quoted in a Bloomberg Law article, Universal Injunctions’ Outsize Effects May Spur Justices to Act. Derek Muller was quoted in an ABC News article about Maine\u27s proposed election reforms. Jorge Barrera-Rojas was cited by the Chilean Constitutional Tribunal in a dissenting opinion concerning education. Rick Garnett was quoted in a Catholic Review article about Former President Trump\u27s absolute immunity claims in court. Diane Desierto spoke on a panel for the International Seminar, where she discussed emerging trends in international human rights law. Rev. Pat Reidy, C.S.C. spoke at Yale Law School about his work on church property and affordable housing. Dwight B. King, Jr. received the William P. Sexton Award from the Notre Dame Alumni Association. Stephanie Barclay spoke at a symposium co-hosted by the St. John\u27s University Mattone Center for Law and Religion and the Journal of Catholic Legal Studies, where she discussed Kennedy v. Bremerton School District. Kathleen Lang taught Introduction to Criminal Law in the U.S. at Masaryk Law School in Brno, Czech Republic.
Student News Yasmeen Dohan, a first-year student at Notre Dame Law School, was named the recipient of the 2024 Barnes & Thornburg Diversity Scholarship.
Alumni News Devan Patel co-authored an op-ed in RealClearPolicy entitled, “Ban TikTok today, which calls for Congress to respond to the “first AI war.
Events Commencement Weekend Schedule of Events Detailed Global Democracy Conference 2024 May 20-2
Belief in War
No full textIntroductory Statement
Belief in war dominates our world. From Ukraine to Sudan to America’s ‘war on terror’, extraordinary resources are poured into militaries and arms races. The explanation for why belief in war has become prominent in foreign and security policy in Russia, the United States., China, NATO states and many other places is linked to the influence of Realist political theory. Pope St. John XXIII’s encyclical Pacem in Terris argued for honoring the alternatives to Realism – international law and institutions. It is time for an encyclical that responds directly to Realism and teaches belief in the authentic natural law norms of peace and equality