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Plessy Redux: Why the Human Rights of Gay, Lesbian, and Transgender Citizens Lost to Religious Claims
Get PDFI am delighted to contribute this Essay to this collection of works celebrating Michael Perry’s lifetime achievements. From my first acquaintance with his work in the late 1980s, I have both admired and been profoundly challenged by it. One of his greatest and most enduring contributions is his foundational idea that every human life is sacred and, therefore, all are entitled to basic human rights.[1] In his words, it is this “fundamental conviction [that is] at the heart of the morality of human rights.”[2]
What is the ultimate source for this “sacredness view,” upon which so much of human law depends? Perry is inherently skeptical about the capacity of secular reasoning and convictions to offer a coherent account of both human rights and the innate worth of human beings upon which they are founded. Rather, the premise that every human being is “sacred” or “inviolable” is inescapably religious.[3] In other words, religious beliefs and secular objectives work together to create legal regimes of human rights.
As a matter of personal understanding and conviction, I do not doubt there are both great truth and power in what he says. For me, questions about human worth and destiny involve inquiries that can easily transcend the limits of the human mind. In this Essay, rather than engaging with his work in a theoretical vein, I have chosen to engage it in an immediate and very critical context. Religion can create, ground, and support human rights. But what if it does not
Interpreting the Understanding of Human Rights Implicit in the U.N. Declarations
Get PDFAmong my most treasured memories are those of the meetings in which Michael Perry and I, along with others, have commented on each other’s writings. These have been, for me, memorable learning experiences. Time and again, Perry has approached the issues being discussed from an angle that had not occurred to me. That is true, once again, for the issues that I will discuss in this Essay.[1
Delegating Climate Authorities
Get PDFThe science is clear: the United States and the world must take dramatic action to address climate change or face irreversible, catastrophic planetary harm. Within the U.S.—the world’s largest historic emitter of greenhouse gas emissions—this will require passing new legislation or turning to existing statutes and authorities to address the climate crisis. Doing so implicates existing and prospective delegations of legislative authority to a large swath of administrative agencies. Yet congressional climate decision-making delegations to any executive branch agency must not dismiss the newly resurgent nondelegation doctrine. Described by some scholars as the “most dangerous idea in American law,” the nondelegation doctrine prohibits Congress from delegating its legislative authority to the executive branch absent an intelligible principle to guide implementation. Failure to fully take into account possible nondelegation challenges could stop forward-looking climate action in its tracks. This Article addresses the contours of the nondelegation doctrine as applied to future climate action. In doing so, it argues that climate change and its associated impacts are a complex collective action problem that implicate Article II authorities independent of congressional lawmaking. These authorities may provide an avenue through which climate action can be taken irrespective of the limits imposed by the nondelegation doctrine. As prospective climate solutions emerge, the nondelegation doctrine lurks in the background. Climate action must therefore be reconciled with presidential foreign relations, national security, and emergency authorities—three areas where the President is afforded significant, but not absolute deference
Promoting Regulatory Prediction
Get PDFIt is essential for environmental protection that private actors be able to anticipate government regulation. If, for instance, the Biden Administration is planning to tighten regulations of greenhouse gas emissions, it is imperative that private companies anticipate this regulatory change now, not a few years from now after they have constructed even more coal- and gas-fired power plants. Those additional power plants will mean more irreversible greenhouse gases, and these plants can be politically challenging to shutter once built. The point is general to private actors making decisions in the shadow of potential government regulation. Better information about future government actions is thus critical for the benefit of both private actors and society at large. In this Article, we consider market-based and non-market-based means by which to generate information about future government action. We find no perfect answer.
We consider three market-based solutions—prediction markets, the use of equity markets to hedge against future government action, and machine-learning and predictive technologies—and three government-based solutions—greater transparency, the development of intellectual property rights in predictive information, and prediction-forcing regulation, which is regulation that requires private actors to make public predictions about future government action. None of these is a panacea. The market-based solutions founder on the limitations and thinness of markets. Government-based solutions come with significant structural downsides related to the division of authority among different levels of government (federal versus state versus local) and different branches of government at each level (executive versus legislative). We conclude that prediction-forcing regulation may be the most promising avenue, though it too is likely not a full solution
An Examination of Graffiti Protection and the Social Obligation Theory of Property
Get PDFWith graffiti art booming, artists all around the world want their creations protected. Current copyright laws in the United States as well as Europe are incentive-based; however, this is an inadequate justification for protection when many artists are motivated by social contribution to the community. This Comment discusses graffiti protections under intellectual property law from an international standpoint—comparing the United Kingdom, France, Greece, and Germany—then analyzes graffiti protections under a progressive property theoretical framework. This Comment argues that the progressive property approach would support the need to better protect graffiti art under copyright law and to contemplate the interests of both artists and the property owner. It also argues that Germany could be a global leader in setting norms surrounding graffiti protection. A combination of U.S. case law on graffiti art and Germany’s inclusion of social obligation in its property laws could pave the way for more protective street art protections internationally
Comparative Disability Policy in Employment
Get PDFFor individuals living with disabilities, the ability to obtain employment can be challenging. But often it is not the disability itself that causes the challenge, but employers and society’s prejudices. While national legislation both in the United States and abroad have attempted to dispel this prejudice through anti-discrimination programs, novel (or reimagined) solutions are needed to proliferate employment for disabled individuals.
This Comment explores the history of disability employment across the Atlantic by focusing on how the United States, Germany, and the United Kingdom have responded to proliferating employment for disabled individuals. Additionally, this Comment explores both what steps these countries have taken and could take in supporting disabled employees. The Comment concludes by proposing the implementation of a quota system for hiring disabled employees and explores why such a program is rational and legal
Why Antitrust, Not Unionization, is the Answer to Underpayment of Student-Athletes
Get PDFThis Comment examines whether student-athletes should be allowed to unionize and collectively bargain for their rights and will present a legal argument against the unionization of student-athletes. The reasoning behind this argument is that student-athletes are not employees, and therefore, are not able to unionize. Even if student-athletes were categorized as employees, they would struggle to collectively bargain for their rights due to various states’ laws that prohibit public employees from unionizing. Rather, this Comment argues that the answer to solving college athlete underpayment is through the remedies that can be provided in antitrust law. The reasoning behind this argument is that student-athletes are independent contractors, and revenue-generating college athletics programs are guilty of price-fixing the cost of labor for these student-athletes’ services
Protecting Our At-Risk Communities from the Ground(Water) Up: CAFOs, the Clean Water Act, and a Framework for Offering Clarity to an Imprecise Maui Test
Get PDFFor rural communities across the country, the problems associated with concentrated animal feeding operations (CAFOs) are nothing new. These industrial-sized operations emit a tremendous amount of waste, polluting the surrounding air, land, and water. In many regions, minority, indigent, and uneducated groups disproportionately bear the ill-effects of these inhumane operations. Under the Clean Water Act, CAFOs are explicitly included in the definition of a point source and are thus subject to the National Pollutant Discharge Elimination System (NPDES) permitting requirements, which regulates the discharge of pollutants. However, many operations do not fit within this regulatory scheme as they do not directly discharge to navigable waters. In April 2020, the Supreme Court held in County of Maui v. Hawaii Wildlife Fund that point sources do not actually need to discharge directly into jurisdictional waters to fall within the ambit of the NPDES permitting program; instead, a “functional equivalent” of a direct discharge will suffice. Applying this “functional equivalent” doctrine to encompass select instances of CAFO groundwater contamination would give our rural communities a real avenue to meaningfully combat environmental injustices that had previously been just a reality with which they had to cope.
This Comment argues that the Maui doctrine can uniquely work as a doctrinal tool against concentrated animal feeding operations that contaminate surface waters through groundwater, placing those operations under the scope of the NPDES regulatory framework and providing multi-faceted relief to affected communities. It explores the difficulties involved with establishing sufficient scientific linkage on the issue of groundwater contamination by CAFOs and why that task is far from insurmountable. It then spotlights the application of the Maui doctrine to actual, real-world CAFOs and offers factors, goals, and directives that bring CAFOs that pollute into nearby waterbodies through groundwater squarely within the ambit of the Clean Water Act. Finally, this Comment discusses the substantial environmental implications of CAFO regulation and this Comment’s utility for other foreseeable applications of the Maui doctrine
Custodian or Not: Scrivener\u27s Error in a Bankruptcy Code Safe Harbor
Get PDFThis Article analyzes a drafting error in the United States Bankruptcy Code that remained latent for 36 years until 2020. This drafting error limits a safe harbor that Congress enacted in 1984 and expanded in 2005 to protect an important segment of the securities and mortgage loan markets.
When a person becomes a debtor in bankruptcy, the Bankruptcy Code imposes an automatic stay on substantially all actions by creditors and other entities against the debtor or the debtor’s bankruptcy estate. It also abrogates contractual provisions, known as ipso facto clauses, that otherwise permit a party to terminate a contract because its counterparty filed a bankruptcy petition. In most cases, these rules produce a net benefit. Congress, however, has determined that, because of the nature and importance in the financial markets of certain qualified financial contracts, the costs imposed by these rules outweigh their benefits. In particular, Congress enacted specific safe harbor provisions for “securities contracts, which are contracts for the purchase and sale of securities and mortgage loans. These safe harbors permit a financial institution (a) to liquidate, terminate, or accelerate the securities contract immediately if the counterparty became a debtor in bankruptcy and (b) notwithstanding the automatic stay, to exercise immediately its rights under any security agreement or its rights of set off and netting.
A financial institution as defined includes not only a banking institution or trust company but also includes a customer of a banking institution or trust company that acts as a custodian for the customer. Congress intended to extend the safe harbor to customers who used a banking institution or trust company as a custodian in the ordinary sense of the word—a person holding securities or mortgage loans for another. Unfortunately, the drafters of the safe harbor were not aware that the Bankruptcy Code had already given the term “custodian” a narrow and misleading definition— a “Humpty-Dumpty definition.” As defined, a “custodian” is, in the words of the legislative history, a prepetition liquidator such as an assignee for the benefit of creditors or other receiver or trustee appointed to liquidate the property of a borrower that later becomes a debtor in bankruptcy.
The use of this misleading Humpty-Dumpty definition of a prepetition liquidator in the definition of financial institution produces an absurd result. It nullifies the intended extension of the securities contract safe harbor to a customer that uses a banking institution or trust company as a custodian of the securities or mortgage loans. This use of this misleading defined is a true scrivener’s error that permits courts to ignore the plain language of the statute. This Article argues that courts should ignore this misleading definition of “custodian” in the definition of financial institution. Instead, they should give the term “custodian” its commonly understood, ordinary meaning. They can easily add a simple judicial amendment comparable to other Bankruptcy Code definitions that specify the ordinary meaning of a defined term as an exception to an express technical meaning