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Displacement and Preemption of Climate Nuisance Claims
No full textPart I begins with a brief sketch of the common law environmental protection that preceded and matured alongside the development of environmental regulation, including the rise of federal common law actions for interstate pollution. With an eye toward preemption, and its role within our federalist system, Part II sketches the system of state and local environmental regulation that served as the background for the adoption of federal environmental law. While federal environmental laws are quite comprehensive and far-reaching, they operate alongside state and local efforts, often in collaborative fashion, and rarely preempt state regulation or litigation. [...]
Parts III and IV discuss displacement and preemption respectively, in the context of environmental law. [...] As discussed in Part IV, preemption is quite different from displacement. [...]
In the absence of preemptive federal legislation, state-law based climate nuisance claims should not be preempted, even if federal common law actions should be displaced. This would seem to be evident from the doctrine, but not every federal court has recognized it. As discussed in Part VI, the U.S. Court of Appeals for the Second Circuit misapplied current doctrine in holding that New York\u27s nuisance claims were first, preempted by federal common law, and then displaced by the Clean Air Act. Other circuits to have faced related questions (albeit in the context of removal) have not made the same mistake. As discussed in Part VI, the Second Circuit\u27s opinion misapplied existing law, relying on mistaken assumptions about the nature of our federal system. Other legal arguments for preemption of state-law- based nuisance claims for climate-related damages are equally unavailing. While there may be grounds to dismiss state-law-based nuisance claims filed by local governments against fossil fuel producers, displacement and preemption are not among them.
To close, the paper offers some concluding thoughts and poses questions for further consideration as to the proper relationship between federal environmental law and litigation over interstate air pollution generally, and climate change in particular.
This abstract has been taken from the author\u27s introduction
Center for the Study of Violence and Reconciliation in Cape Town, South Africa
No full textKatie Kitchen [1L] will intern with the Centre for the Study of Violence and Reconciliation in Cape Town, South Africa, an organization that engages in a multidisciplinary and comprehensive approach to understanding the impact of violence on communities and how to build sustainable peace in South Africa and beyond. She will contribute to a project focusing on conflict-based sexual violence, truth commissions and transitional justice
International Foundation for Electoral Systems in Washington, D.C.
No full textNicholas Gucciardo [1L] will work with the International Foundation for Electoral Systems Center for Anti-Corruption and Democratic Trust, which helps countries around the world counter threats that corruption poses to democracy
Segmented Innovation in the Legalization of Mitochondrial Transfer: Lessons from Australia and the United Kingdom
Get PDFThe U.S. is often characterized as a leader in innovation—a home of Nobel Prize‐winning scientists, innovators, and abundant research funding. Yet, in the area of assisted reproduction combined with genetic modification or substitution, what I call “reproductive genetic innovation,” that characterization begins to wane. This Article focuses on the regulation of mitochondrial transfer, a subset of reproductive genetic innovation. While human clinical trials related to mitochondrial transfer go forward in the U.K., the clinical use of the technique remains illegal in the U.S. due to a system of subterranean regulation by the U.S. Food and Drug Administration and a now-recurring federal budget rider.
In the U.K., the government structured and carried out a public consultation as part of the legalization of mitochondrial transfer. Recently, Australia announced a plan to consider the potential legalization of mitochondrial transfer. In August 2021, the Australian federal government completed a public‐facing step in implementing a gradual approach to considering the legalization of mitochondrial transfer, and in March 2022, Maeve’s Bill passed in the Australian Parliament.
This Article draws on the experiences of two common‐law countries, the United Kingdom and Australia, to identify potential avenues for a gradual approach to legalizing mitochondrial transfer in the United States. Progress on mitochondrial transfer could start a broader American discourse that could facilitate access to mitochondrial transfer and the other techniques in the area of reproductive genetic innovation
Another Bite at the Apple or the Same Bite? Characterizing Habeas Petitions on Appeal as Pending Instead of Fully Adjudicated
Get PDF[...] One of the Act\u27s [Antiterrorism and Effective Death Penalty Act] most significant aspects is its restriction on the filing of successive habeas corpus petitions. Responding to this restriction, prisoners have attempted to circumvent the AEDPA through a number of different procedural routes with varying degrees of success.
This Note examines the circuit split that has emerged for one of those procedural attempts—motions to amend habeas petitions following adjudication on the merits and while on appeal in a circuit court. This Note argues that allowing amendment of habeas petitions on appeal is both consistent with the history of habeas corpus in the United States and allowable under even the restrictive approach of the AEDPA. Finally, this Note advocates for Supreme Court intervention on this issue despite the Court’s reluctance up to this point.
Part I of this Note provides a background on the right of habeas corpus in American history and discusses the changes and developments accompanying the AEDPA since its passage in 1996. Part II discusses the Supreme Court’s rulings in Gonzalez v. Crosby and Banister v. Davis, with particular focus placed on the Court’s analysis of Rule 60(b) and 59(e) motions. Part III uses cases in the Second, Third, and Ninth Circuit Courts to illustrate federal courts’ various approaches to appeals after trial courts have adjudicated the merits of initial habeas petitions. Part IV puts forth various arguments as to why these motions should be allowed and why the Supreme Court should intervene on this issue. It also proposes a test that the Supreme Court should utilize when coming to a decision, which utilizes the approaches currently used by the circuit courts as well as related approaches to other procedural obstacles of the AEDPA.
This abstract has been adapted from the author\u27s introduction
The First Amendment Weaponized: When Guns Become Public Discourse
Get PDFThis Article discusses First Amendment challenges asserted against gun control measures—inside and outside our courts. It explains at length why existing doctrinal approaches to resolving these challenges fail, providing an alternative account of why the First Amendment should not be construed liberally to protect the open carry of firearms. As guns in public spaces and protests become commonplace, we can expect not only continual First Amendment challenges to gun control measures, but also the growing prevalence of First Amendment claims asserted in the public by advocates and gun owners to justify open carry—and the forging of new constitutional meanings and social norms. This Article maps a doctrinal path that judges should take to reject these challenges while providing a conceptual language for bystanders to reassert and reclaim their rights to public safety and participation from open carriers trying to weaponize the First Amendment.
To courts, the Article argues that the practice of open carry is too divorced from the value of democratic self-governance to constitute public discourse deserving of First Amendment coverage. Courts should deny First Amendment coverage to gun carry both because bearing arms in public does not facilitate the formation of public opinion and because doing so preserves the social and legal norms that exclude guns from the public sphere. These norms—encoded in commonplace gun control laws— serve important constitutional values and interests central to the First Amendment.
To nonjudicial audiences, the Article calls for advocates of gun control to flip the script on these First Amendment claims and forcefully articulate the ways that guns in public spaces threaten the free and equal exercise of constitutional rights to free speech, assembly, and political participation more broadly. These First Amendment challenges illustrate the extent to which pro-gun rights movements transcend the jurisprudential boundaries of the Second Amendment. Evolving popular beliefs about the right to bear arms trickle down into popular beliefs about other, adjacent constitutional rights like the First Amendment right to freedom of speech. Through considering these First Amendment challenges to gun control measures and looking beyond their lack of judicial success, we can begin to see how popular beliefs about the right to bear arms are gradually evolving to incorporate First Amendment values. Guns are transformed into public discourse—symbols and forms of political speech
Pleasure Patents
Get PDFThe United States Patent and Trademark Office has granted thousands of patents for inventions whose purpose is to facilitate the sexual pleasure of their users. These pleasure patents raise a range of novel questions about both patent theory and the relationship between law and sexuality more broadly. Given that immoral inventions were long excluded from the patent system, and that sexual devices were widely criminalized for much of the past 150 years, how have patentees successfully framed the contributions of their sexual inventions? If a patentable invention must be both new and useful, how have patentees described the utility of sexual pleasure? This Article identifies several hundred patents that the USPTO has formally classified as improving sexual stimulation and intercourse, and it closely examines how patentees have described the utility of sexual pleasure over time. In describing the utility of technologies such as phalluses, vibrators, and virtual reality systems, patentees employ a diverse and rich set of themes about the purposes and social values of sexual pleasure. By facilitating sexual pleasure, these patented technologies can, according to their inventors: improve marital harmony, overcome female frigidity, calm fears of HIV transmission, reduce sexual assault, suppress demand for sex work, minimize the loneliness of single people, facilitate LGBTQIA relationships, and promote the emotional well-being of people with disabilities. As social and sexual norms have changed over time, so too have the various explanations for the social value of pleasure patents. This Article shows that the patent system is an underappreciated, and perhaps unexpected, archive of historical and contemporary sexual norms
Old MacDonald had a Trust: How Market Consolidation in the Agricultural Industry, Spurred on by a Lack of Antitrust Law Enforcement, is Destroying Small Agricultural Producers
Get PDFThe U.S. agricultural industry is controlled by a handful of large corporations. Unprecedented levels of market consolidation has created a power disparity, where controlling corporations alone shape markets, often to the disadvantage of small agricultural producers. A primary, and often overlooked, cause of this consolidationdriven bargaining disadvantage, and its resulting harm, can be found in the lacking enforcement of the nation’s antitrust laws. Faulty metrics and lax legal interpretations employed by regulatory agencies have permitted large corporations to grab control of nearly every sector of the industry. From the seeds farmers plant to the markets they sell their goods into; the American food chain is one of the most consolidated areas of the entire economy. This unfettered concentration has been disastrous for small producers, increasing their costs and suppressing their profits, all while consumer costs continue to rise. Overall, this Note will present that a lack of enforcement of antitrust laws is a leading contributor to increased market consolidation of the agricultural industry, wreaking havoc on small producers, consumers, rural communities, and as a result, the whole nation
Curing Corrective Rape: Socio-Legal Perspectives on Sexual Violence Against Black Lesbians in South Africa
Get PDFCorrective rape can be defined as a hate crime that entails the rape of any member of a group that does not conform to gender or sexual orientation norms, where the motive of the perpetrator is to “correct” the individual, fundamentally combining gender-based violence and homophobic violence. In the South African context, these biases intersect with systemic racism, producing a disproportionate impact on Black, queer, womxn. While the legal framework has evolved to better address sexual violence crimes, Black lesbians remain prone to falling through the legal cracks, and South African society continues to sanction the homophobia and misogyny that form the bulwark of continued unchecked violence against them. This Article utilizes a socio-legal approach to analyze both law and society in an effort to elucidate the complex interplay between both, in addressing—or failing to address thereof—corrective rape. The analysis shows the inherent need to employ a multifaceted approach that gives equal weight to societal transformation as it does legal protection, and further demonstrates the utility of looking to, and borrowing from, the field of public health to successfully engineer social change
280 Characters to § 230 Immunity: Protecting Individual Sexual Assault Allegations on Twitter from Defamation Liability
No full textOne in four female undergraduate students has been sexually assaulted. These students are three times more likely to experience sexual violence than any other group. Frustrated with the Title IX process on their campuses and the lack of discipline for their assailants, these students are unlikely to report their assault. Instead, they quietly tell their friends and other students, and in some cases, anonymously share their stories online. But instead of receiving support, these survivors are often faced with lawsuits. Accused assailants are using, or threatening to use, defamation lawsuits in an attempt to silence survivors who speak out, even when they do so anonymously. These defamation suits have high costs, both financial and emotional, that many survivors cannot bear; many survivors will stop speaking out about their experiences as a result. However, § 230 of the Communications Decency Act and the public controversy doctrine limit defamation liability for sexual assault allegations made online that could shield survivors brave enough to come forward