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Groundwater Exceptionalism: The Disconnect between Law and Science
Get PDFMost judges, legislators, and regulators would be hard-pressed to articulate a comprehensive legal theory of groundwater. And yet, this under-appreciated, over-used, life-sustaining resource plays an increasingly pivotal role in prominent legal controversies. In defiance of hydrologic reality, lawmakers have routinely singled out groundwater for unique treatment and decoupled it from surface water. This Article dubs such phenomenon “groundwater exceptionalism,” and identifies groundwater as an under-theorized aspect of both property law and water law. It brings to light the numerous legal doctrines infected by exceptionalism, including state water rights law, the federal reserved rights doctrine, the apportionment of interstate waters, and the scope of jurisdiction under the federal Clean Water Act. This Article constructs a typology of the purported justifications for exceptionalism and identifies its two key consequences: the over-propertization and under-regulation of groundwater. It argues that these distortions must be corrected, not solely as a normative matter, but also as essential reforms to bring the law into alignment with science and promote analytical coherence, faithfulness to doctrinal purpose, and sustainable water use. This Article concludes by culling the lessons from over a century and identifying promising analytical tools to move the law from exceptionalism toward integrity. More broadly, this analysis offers a roadmap for integrating law and science in the context of resource management, a challenge that will become increasingly critical in the face of climate change
Privacy Injunctions
Get PDFViolations of intimate privacy can be never ending. As long as nonconsensual pornography and deepfake sex videos remain online, privacy violations continue, as does the harm. This piece highlights the significance of injunctive relief to protect intimate privacy and legal reforms that can get us there. Injunctive relief is crucial for what it will say and do for victims and the groups to which they belong. It would have content platforms treat victims with the respect that they deserve, rather than as purveyors of their humiliation. It would say to victims that their intimate privacy matters and that sites specializing in intimate privacy violations are not lawless zones where their rights can be violated. For victims, the journey to reclaim their sexual and bodily autonomy, self-esteem and social esteem, and sense of physical safety proceeds slowly; the halting of the privacy violation lets that process begin. The crux of my proposal is straightforward: Lawmakers should empower courts to issue injunctive relief, directing content platforms that enable intimate privacy violations to remove, delete, or otherwise make unavailable intimate images, real or fake, that were hosted without written permission. They should amend Section 230 of the Communications Decency Act so that these enabling platforms can be sued for injunctive remedies. Market developments can fill some of the gaps as we wait for laws to protect intimate privacy as vigorously and completely as they should
The Surprising Virtues of Data Loyalty
Get PDFLawmakers in the United States and Europe are seriously considering imposing duties of data loyalty that implement ideas from privacy law scholarship, but critics claim such duties are unnecessary, unworkable, overly individualistic, and indeterminately vague. This paper takes those criticisms seriously, and its analysis of them reveals that duties of data loyalty have surprising virtues. Loyalty, it turns out, can support collective well-being by embracing privacy’s relational turn; it can be a powerful state of mind for reenergizing privacy reform; it prioritizes human values rather than potentially empty formalism; and it offers solutions that are flexible and clear rather than vague and indeterminate. We propose five contexts in which specific rules should supplement a general duty of data loyalty: collection, personalization, gatekeeping, influencing, and mediation. Loyalty can be a key policy tool with which to take on the related problems of information capitalism, platform power, and the use of personal data to manufacture consent to objectionable data practices. In fact, loyalty may well be the critical missing piece of the regulatory toolkit for privacy
Viral Sovereignty, Vaccine Diplomacy, and Vaccine Nationalism: The Institutions of Global Vaccine Access
Get PDFThe COVID-19 pandemic has triggered a global vaccine race. Distributive questions about which countries will receive scarce doses and under which conditions pervade international law and diplomacy. This Article is the first to describe the phenomena that have driven the development of international vaccine-sharing mechanisms, identify the international organizational forces that explain the phenomena, and explain how international organizations may facilitate international cooperation before, during, and after global crises.
This Article explores the longstanding dissociation between global public health imperatives and nationalist responses to pandemics within the frameworks of “vaccine nationalism,” “viral sovereignty,” and “vaccine diplomacy.” The Article then considers two international agreements indicative of an interest in international collaborations, division of gains from trade, and sustained governance structures—the 2011 Pandemic Influenza Preparedness Framework, and the 2020 COVAX Vaccines Pillar of the ACT Accelerator. The recurrence of these legal arrangements suggests that, to save the transaction costs generated by repeated development of ad hoc structures that centralize vaccine distribution, a permanent facility may be developed. One possibility for such a facility is the Pandemic Influenza Preparedness Framework, adapted to become an all- or most-pathogen-sharing international organization. A second possibility, which gained some momentum during the COVID-19 pandemic, is a Pandemic Treaty establishing the terms under which pandemic vaccines will be developed and shared in the future
Natural Law and Universal Human Rights
Get PDFAbdullahi An-Na‘im has set his life’s quest on attempting to find a way that Muslim society can be attuned to the moral commands of the Universal Declaration of Human Rights, a Western creation. At present, the Shari‘a and the Declaration are in obvious tension, if not conflict, in areas such as freedom of religion and the rights of women. An-Na‘im finds that the Shari‘a is a creation of man derived in history from an interpretation of Islamic sources. Muslims today can legitimately develop their own interpretation relying on the root sources of Islam, but only so long as those sources are distorted by the doctrine of Naskh. With a genuine interpretation of norms from the Qur’an, the principles of Islam, articulated through regional and historical experiences, can engage the values of the Declaration in synergetic enterprise. On the other hand, Professor An-Na‘im notes that the Declaration is itself the product of Western history and experience. How then can we be confident that a relationship between variable Muslim experience and the Declaration be successful? The answer, this Essay suggests, lies in the norms of natural law accessible by reason by all peoples. Those norms provide for the “universality” of many parts of the Declaration, and they are in harmony with Islam, properly understood, as well as with Judaism and Christianity
Back to Basics in Evaluating Belief
Get PDFThe growing academic literature around freedom of thought, conscience, and religion has stretched the topic to many arenas and offered a detailed analysis of its relevance to numerous related concerns. It has, rightly, gone beyond a theoretical consideration as an individual right to also examining it within the community and society at large. This Article, however, assesses whether we need to return to ensuring that freedom of thought, conscience, and religion rest on a sufficiently close nexus with the conviction of particular claimant(s), and why this matters
Retiring Social Security’s (Non)Payment at Death After Eight Decades
Get PDFSection 202 of the Social Security Act, which originated in the 1939 Amendments to the 1935 Social Security Act, authorizes monthly benefits payments to an eligible person until the month prior to the month of death. Under this rule, an individual who dies on November 30th at 11:59 pm is not eligible to receive a check for benefits accrued during November because the individual failed to survive one additional minute; eligibility for payment ended on October 31st. After a beneficiary’s death, the Social Security Administration (“SSA”) either prevents deposit of a check for month-of-death benefits or mandates return of monies deposited prior to receiving notice of death. Thereafter, survivors often struggle to pay a deceased beneficiary’s expenses or reimburse the SSA for deposited money used to benefit the deceased beneficiary.
This paper argues for a modification to the Social Security payment schedule to provide a final payment to beneficiaries for benefits accrued during the month of death. The proposal prorates payments during the first and last months of eligibility according to the number of eligible days in each of those months. While increased Social Security benefits may add financial cost to the system, any added expense represents a small fraction of annual SSA expenditures and would not be administratively burdensome for the SSA given its annual calculations of cost-of-living adjustments. In the end, prorating the first and last Social Security payments not only better computes the actual sums due to beneficiaries as compared to the current rule, but also promotes the “family security” contemplated by amendments made to the Social Security program over eight decades ago
