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Toward a Taxonomy of Freedom of Movement Claims: Identifying Rights-Based Pathways for Today’s Refugees Beyond the 1951 Refugee Convention
No full textThis Article discusses the current migratory crisis as one instance of a conceptual mismatch in human rights between formal law and the tools that courts and other quasi-judicial bodies actually utilize in adjudication. While the doctrine centers around individual right-holders, enforcement bodies provide a remedy only when there is a state duty-holder. Human rights scholarship regarding refugees focuses on the right to freedom of movement. However, this right frequently offers little benefit to these individuals adrift at sea or wandering in the desert.
An alternative framing might ultimately be more effective before human rights courts and other quasi-judicial bodies. This framing does not start with the rightholder but instead with the question of who the duty-holder is. Specifically, I differentiate plaintiffs based on whether they can articulate their claim in a way that identifies one discrete state duty-holder.
This revised understanding helps explain why the claims of so many individuals who are between states today do not in fact lend themselves to human rights litigation. Their plight is better served in the political arena, seeking public support for negotiation. At the same time, this approach opens potential pathways for human rights litigation to buttress protections currently afforded under the 1951 Refugee Convention to individuals on the run
First Amendment Disequilibrium
No full textThe Supreme Court has constructed key parts of First Amendment law around two underlying assumptions. The first is that the press is a powerful actor capable of obtaining government information and checking government power. The second is that the executive branch is bound by various internal and external constraints that limit its ability to keep information secret. Judges and legislators have long assumed that these twin forces—an emboldened press and a constrained executive—maintain a rough balance between the press’s desire to uncover secrets and the executive’s desire to keep information hidden. Landmark First Amendment cases such as the Pentagon Papers decision embody this view. Professor Cass Sunstein has described these cases as establishing a “First Amendment equilibrium,” one that arises out of the structural competition between the press and the executive. Today, judges and legislators continue to treat the press and the government as equal combatants in these disputes.
Yet whatever equilibrium might once have existed between the press and executive branch has been destabilized. The institutional press has been eviscerated in recent years—hemorrhaging talent, expertise, resources, and legitimacy. Wide swaths of the country now qualify as “news deserts,” lacking any local press presence at all. Public trust in the mainstream media has also plummeted. At the same time, many internal checks no longer constrain the ability of the executive branch to guard its secrets. This combination of a hollowed-out press and an insufficiently checked executive has given rise to a First Amendment disequilibrium, unsettling the foundations of this critical segment of constitutional law. This Article describes the causes and consequences of this disequilibrium and argues that recalibration is essential to fostering effective democratic self-governance
Cryptocurrency — Legally Navigating The “Highway to Climate Hell”
Get PDFThe U.S. electric system is regarded as history’s greatest engineering achievement and the second most important invention in history. This Article analyzes the provocative legal ‘dark side’ of crypto currency now compromising the sustainability and resiliency of the U.S. electric system. Crypto currency miners have migrated in mass during the 2020s from Asia to several areas of the U.S., choosing inefficiently to waste large amounts of fossil-fuel and electric power. Scholars suggest that Bitcoin’s indirect carbon emissions at the current rate, alone with no other increases by world nations (which in fact are still increasing rapidly) are enough to push global warming beyond the Paris Agreement commitment to stay below an increase in temperature of two degrees Celsius.
The Secretary-General of the United Nations states that we are travelling now on the “highway to climate hell.” This Article analyzes the legal ‘dark side’ of crypto currency, the Constitution, and recent Supreme Court precedent:
• Notwithstanding that climate policy is federal law and that electric power is the key sector of the economy warming climate, the federal government has no authority over crypto mining and its excessive electric power use emitting greenhouse gases;
• Constitutional and common law precedent limiting government crypto control;
• Constitutional separation of powers constricting Executive Branch action on climate and electric power matters, culminating in the West Virginia v. EPA (2022) decision;
• Equal Protection Clause precedent blocking state actions restricting crypto power use; and
• A suite of failed federal and state attempts to legally regulate crypto mining.
This Article highlights and analyzes U.S. crypto miners choosing fossil-fuel- fired power extending the life of polluting coal plants otherwise scheduled to close. This frustrates President Biden’s Inflation Reduction Act devoting hundreds of billions of dollars to shift the U.S. economy to renewable energy. This frustration is backstopped now by hundreds of cities in 31 states plus several states, supported by Supreme Court precedent, blocking effective rapid deployment of Biden’s sustainable renewable energy infrastructure laws and thus significantly warming climate.
In its final sections, this Article constructs legal ‘work-arounds’ to regulate crypto power that do not require any change of U.S. law or any action that contradicts the Constitution’s separation of powers. States have discretion strategically to reconstruct certain incentives and moratoria to reshape the use of power resources for crypto mining that will shift resource use in order better to sustain a fragile climate. These techniques are necessary as well to preserve resiliency of the U.S. electric power system and to meet U.S. international climate pledges to maintain a livable climate. The final sections propose a ‘win-win’ outcome
Saving the Permit Streamlining Act: The California Supreme Court Must Depart from Horn v. County of Ventura
Get PDFThe Permit Streamlining Act (PSA) ensures swift resolution of permit applications by simplifying the processing of permits for development projects. To achieve this end, the California Legislature set forth various time limits within which local permitting bodies must approve or disapprove of a complete application. After the time expires, the PSA provides that a project shall be “deemed approved” so long as affected landowners are given “public notice required by law.” The PSA’s statutory framework butts up against Horn v. County of Ventura—a 1979 California Supreme Court case that is inconsistent with California due process principles. The Horn decision has led to the appellate courts’ split that this paper explores. It begins by detailing the differing treatment of the PSA’s public notice provision between appellate courts. Some courts have treated this as adequate for due process purposes; others disagree. It next deconstructs the Horn decision, demonstrating that its due-process theory is dicta and therefore not binding. Finally, it suggests that Horn’s due-process dicta is inconsistent with California’s due-process jurisprudence because it fails to balance the competing interests at stake. And, even if Horn’s due-process dicta struck a reasonable balance in the 1970s, the balance weighs differently in favor of the governmental interests at issue today, considering the Legislature’s priority in addressing the housing crisis. This paper’s primary goal is to unfold the appellate courts’ split and save the PSA from utter curtailment, so that it remains free to fulfill its legislative purpose: streamlining the permitting process to prevent unjust governmental delays that threaten housing development
How American Society and Law Continue to Undermine People with Disabilities Seeking Education and Employment
Get PDFOur Founders specifically identified education as necessary to economic success and full participation in our democracy and society. However, the Supreme Court held in San Antonio Independent School District v. Rodriguez that education in America is not a constitutional right; instead, it is a commodity that few can afford. Then, in 2023, Biden v. Nebraska exposed the direct result of that ruling: the average American––regardless of their disability status––struggles to pay back their student loans, even when they have a well-paying job. The student debt crisis significantly impacts the economic future of students with disabilities, who make on average sixty-six cents on the dollar even if they complete their education and do secure employment. I attribute this gap to decades of judicial and legislative actions– –from Pierce v. Society of Sisters and Sutton v. United Air Lines, Inc. to the convoluted language of Section 504 of the Rehabilitation Act of 1973––that have entrenched ablism and stigma in our educational system and workspaces, forcing people with disabilities to work twice as hard to fare half as well. These systemic barriers have made the promise that education will guarantee economic security a false promise for hardworking people with disabilities. By failing to protect people with disabilities and their communities, we have not only prevented qualified people with disabilities from attending our top-ranking schools and accessing the myriad of professional and personal opportunities that come with that experience, but these systemic inequalities have also held all of us back from achieving our full potential as individuals and a nation. We have been actively undermining the Founders’ vision for decades by increasing the cost of education and exclusivity of our job market to the detriment of all, particularly those with disabilities. But, we have the tools to right our wrongs if we have the courage to use them.
In this Article, I identify how the evolution of education in America entrenched the “able-body standard” in our society, disability jurisprudence, and legal system as a whole. I advocate for everyone––from lawmakers and judges to educators and employers––to embrace theories championed by the disability activist community so that all people, with and without disabilities, can, in short, attain the American Dream
A Cross-Clinic Collaboration: How an Amicus Brief Helped Create Judicial Recognition of Adultification Bias in Juvenile Sentencing
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Honoring Indigenous Sovereignty and Consent: Legal Frameworks for Addressing Indigenous Displacement Due to Climate Change
Get PDFClimate change-induced displacement is not only a possibility but a present reality. This problem affects marginalized communities everywhere, but Indigenous peoples, particularly those in disappearing States, are especially climate-vulnerable and often at risk of losing their ancestral lands forever due to climate change. Despite the inevitability and urgency of this issue, there are currently no legal frameworks specifically designed to address the issue of Indigenous sovereignty amidst climate-change induced displacement. Thus, this paper seeks to identify and examine the legal frameworks that can be used and extended to protect Indigenous sovereignty when environmental displacement occurs. The only protections Indigenous peoples can currently utilize flow from consultation and participatory rights, such as the duty to consult, and the right to free, prior, and informed consent under ILO Convention 169 and the UNDRIP, respectively. On the other hand, for internally displaced peoples, the relevant legal frameworks are the UN Guiding Principles on Internal Displacement and the Kampala Convention, which are not designed to address environmental displacement either. This Article critiques the existing international legal frameworks for their roots in colonialism and argues for the need to overhaul the entire international system in the face of complex, global problems like climate change, environmental displacement, and Indigenous sovereignty rights. This Article argues that these challenges can be addressed by having Indigenous peoples be the key decision-makers of their own destinies, rather than mere procedural consultants, particularly in future negotiations about relocation and resettlement from their ancestral lands due to climate change
