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The Key Deer is Headed for Extinction: How Repealing a Trump-Era Federal Rule Defining Habitat Could Allow Assisted Migration to Save Species Threatened by Climate Change
No full textClimate change induced sea level rise is imminent. In fact, the U.S. Army Corps of Engineers has predicted that “[b]y 2045, the sea level in the Florida Keys will rise 15 inches . . . .” Such a projection usually invites questions about the implications for coastal residential homeowners. However, this projection means so much more for the voiceless inhabitants of the Florida Keys. Anthropogenic climate change that leads to sea level rise of this magnitude will be responsible for permanently destroying species’ habitats, and therefore impacting their ability to survive. For endangered and threatened species, this means extinction. As such, humanity has a responsibility to assist these species in their fight against obliteration.
Climate change is a global threat, and the global community must work together to combat this common enemy. This fight is especially important because vulnerable communities stand to bear the worst of what is to come from climate change. For example, sea level rise threatens to consume small island nations—placing their statehood and their territorial integrity at risk. Similarly, the Key deer face a bleak future as sea level rise threatens the Florida Keys more severely than other landlocked parts of the United States. Isolated on islands, the Key deer cannot migrate inland as sea level rise consumes their home. Additionally, sea level rise diminishes freshwater sources crucial to the survival of the Key deer. As animals, Key deer cannot lobby for their own safety. Thus, effective human stewardship is the only way to save the Key deer from extinction. To make matters worse, sea level rise is not the only imminent threat the Key deer face. Human activity has a long history of placing the Key deer in peril. Dating back to the 1940’s and 1950’s, intense hunting and habitat loss led to the near extinction of the Key deer species as a whole. The installation of fences (“fencing”) is also a prominent human threat to the Key deer; fencing has rendered thirty percent (30%) of Key deer habitat unusable on their home islands. Between 1968 and 2002, the core areas where Key deer fawn existed decreased seventy-five percent (75%) due to urbanization. Established in 1957, the National Key Deer Refuge has helped protect the dwindling population from complete extinction. The Key deer’s federal listing as an endangered species has provided a layer of protection; however, these efforts will be rendered useless if the tiny remainder of the Key deer’s habitat is underwater by 2050. Despite the Endangered Species Act’s (“ESA”) many protections, the Act does not address how to protect endangered species from habitat loss due to climate change impacts. The ESA’s requirement for designation of critical habitat for endangered species has the potential to offer some protection from this threat if it is used properly. The ESA’s section on designation of critical habitat provides that the Secretary of the U.S. Fish and Wildlife Service (“USFWS”) shall, “concurrently[,] with making a determination under paragraph (1) that a species is an endangered species or a threatened species, designate any habitat of such species which is then to be considered critical habitat. Critical habitat may include “specific areas outside the geographical area occupied by the species at the time it is listed . . . upon a determination by the Secretary that such areas are essential for the conservation of the species.” This protection is essential to protect species like the Key deer who face the immediate threat of losing their homes due to climate change impacts. However, a recent Supreme Court decision and Trump-era rule defining “habitat” have severely limited application of this section in a way that is detrimental to the Florida Key deer as climate change continues its path of destruction. Unless this Federal rule is repealed, and the Supreme Court decision is strictly limited to its narrowest possible holding, the ESA’s critical habitat designation section will be far too restricted to protect the Key deer from their impending demise. Part II of this Article discusses the Key deer’s uniquely vulnerable position and how sea level rise caused by climate change is destroying the Florida Key deer’s habitat. Part III addresses the existing legal framework regarding critical habitat designations under the ESA, and how the term “critical habitat” was designated for species prior to the Trump-era federal rule and the Weyerhaeuser Co. holding. Part IV demonstrates how the pre-Weyerhaeuser Co. interpretation of Section Four of the ESA can be used to prescribe assisted migration to save species threatened by sea level rise. Furthermore, Part IV also examines how the pre-Weyerhaeuser Co. interpretation of Section Four was used to save the Western Snowy Plover from sea level rise, and how it was used to prescribe assisted migration for the Florida panther. Finally, Part V proposes that the Weyerhaeuser Co. holding must be limited and the Trump-era rule defining “habitat” must be repealed to protect the Key deer from extinction. Ideally, the Trump-era definition of “habitat” should not be replaced, but if it is replaced, a definition that considers both the goals of the ESA and the scientific definition of “habitat” is preferable
Front Matter
No full textFront Matter includes Masthead and advisors for St. Thomas Law Review Volume 34, Issue 2, Spring 2022
U.S. Drug Reform: A Cultural Shift
No full textWhen a human body ingests a lethal dose of heroin, the body goes through an enormous physiological transformation. The functions of the central nervous system begin to depress, breathing is shallowed, the pulse is weakened, and the skin turns blue or gray with dark lips and fingernails. An alert person must quickly administer naloxone, an opioid antagonist, to reverse the effects of a heroin overdose, as symptoms typically begin after ten minutes. For many, however, their lives end with an overdose, despite this outcome being preventable. This paper will establish that drug overdose deaths are preventable for an entirely different set of reasons. As the nation’s drug overdose epidemic worsens, the American Medical Association (“AMA”) issued a brief in which it stated that a handful of illicit drugs, often in combination or in adulterated forms, are becoming the driving force behind the epidemic. The AMA thus urges policymakers to take action to increase access to evidence-based care for substance use disorders, as well as for pain and harm reduction measures. Although the Department of Health and Human Services (“HHS”) publicly favors clean needle exchange programs since they slow the spread of diseases such as HIV/AIDS and hepatitis among drug users, it has yet to take a stance on supervised consumption sites and other such controversial matters of ongoing litigation that are still federally banned. Taboo or not, two safe consumption sites have since opened in Manhattan through grassroots means and are operating successfully. Drug policies in the United States appear to focus more on immediate measures, such as needle exchanges, drug testing kits, and reduced access to prescription opioids. These are effortful steps toward change, but the New Haven School of Jurisprudence approach to social problem solving reveals a deeper and more critical issue to be resolved if the United States is ever to break its pattern of drug policy failures. Drug overdose deaths appear to be the tip of the iceberg, wreaking societal havoc, while the underlying and disregarded cultural factors continue to push this devastating problem to the surface, where buzzworthy news coverage fuels quarrelsome politics over who is to blame and who should step up and fix it. Part I delineates the nation’s drug overdose crisis. Part II depicts the conflicting claimants and their different perspectives. Part III explores the past legal decisions in light of their conditioning factors to provide historical and environmental context. Part IV objectively predicts future decisions and what will happen. Part V provides appraisals for the above sections. Parts VI and VII illustrate alternatives and a proposal for what ought to happen
The Dean\u27s Welcome Address (2022 Intercultural Human Rights Law Review Symposium)
No full textDean Tamara F. Lawson\u27s welcome address for the 2022 Intercultural Human Rights Law Review Annual Symposium
The USA\u27s Engagement with the UN\u27s Human Rights Committee on the Question of Capital Punishment
No full textThe engagement of the United States of America ( USA\u27) with international human rights is fractious. The U.N. treaty bodies monitor U.N. Member States\u27 implementation of human rights treaties, which takes place through cyclical reviews. The treaty bodies are led by independent human rights experts, and, in recent years, civil society organizations have also been able to submit reports to these reviews. In order to provide an example of how the USA interacts with international human rights, this article uses the case study of the USA\u27s engagement with the Human Rights Committee (the Committee) on the question of capital punishment. The Committee is the treaty body attached to the International Covenant on Civil and Political Rights ( ICCPR ), a seminal multilateral agreement that provides numerous protections relating to the death penalty. The USA has been reviewed three times by the Committee, in 1995, 2006, and 2014. To create a comprehensive dataset, all references made to the death penalty in the three reviews were collated and categorized. From this, three key issues were identified as the focus of this analysis: (1) the non-self-executing declaration lodged against the ICCPR by the USA; (2) the reservation lodged against Article 6 and juvenile executions; and (3) categorical exemptions to the death penalty. The discussions relating to these three themes have been exam-ined to assess the USA\u27s engagement with the Committee and, ultimately, suggest ways in which the USA can better engage with the Committee in future reviews, which is particularly important as the USA\u27s next Committee review is imminent
Thompson v. Trump: Lost in the Funhouse of Brandenburg
No full textD.C. Circuit Court Judge Amit Mehta\u27s ruling in Thompson v. Trump denying immunity to ex-President Donald Trump in actions brought against him by a variety of plaintiffs for inciting the January 6th insurrection offered a moment of relief to the left side of the Great Partisan Divide in these dark times. Mr. Trump could finally be held responsible for a bit of the havoc he wreaked. The author advises not to celebrate too quickly. The Supreme Court-in the great likelihood that the case ends up there-may not see eye to eye with Judge Mehta. Two issues will be central to the High Court\u27s analysis and to this Essay. The first is whether the ex-President\u27s remarks fell outside of the Court\u27s capacious view of the outer perimeter of presidential functions. The second issue as to whether his speech that day falls under the long-standing Brandenburg exception to free speech presents a minefield of perplexing, previously unidentified issues that threaten consistency in the decisions it produces. The author brings each of these issues to light, positing their implications for Mr. Trump\u27s immunity with respect to the civil suits arising out of the January 6th attack on Congress and ultimately providing an inventory of questions that the Court must weigh in on to produce a workable standard for assessing when speech is deemed to incite imminent lawless action
Bias and Sexism: The Racial and Gender Wage Gap Affecting Black Women
No full textThe objective of this Article is to address the racial wage gap between Black and White women and provide a solution. Part I of this Article will discuss the history of Black women and White women in the workforce. Part II will discuss the gender wage gap as it applies to Black and White women in the 21st century. Part III will discuss how Title VII of the Civil Rights Act of 1964 and the Equal Pay Act has failed to address the gender and race issues that Black women face when it comes to work wages. Part IV will discuss the reasons that studies and scholars have given for the wage gap. Part V discusses the benefits and costs of mandatory wage disclosure as well as Washington\u27s Equal Pay and Opportunities Act. Part VI discusses the benefits of allowing Black women to sue based on their gender and race. Finally, Part VII concludes that the Federal Government should be more assertive in applying anti-discrimination laws by adopting a uniform mandatory wage disclosure law like Washington\u27s Equal Pay and Opportunities Act and allowing Black women to sue based on their gender and race
The Constitutional Issues of Publishing Mugshots in the Age of Screenshots and Digital Media
No full textThis paper takes the position that American people’s Due Process rights are violated when their mugshots are digitally disseminated prior to a conviction. The press’s First Amendment rights are not violated by not having access to pre-conviction booking photos because the press can report on other publicly accessible information. The same conclusion can be made relating to private citizens and private companies who assert that their Freedom of Speech rights are violated by not having access to obtain, publish, and disseminate pre-conviction mugshots. Existing scholarship has addressed the issue of publishing mugshots with privacy arguments related to the Freedom of Information Act (FOIA). However, this Article, for the first time, addresses the issue solely in the context of the Constitution, evaluating issues from the 1st Amendment, 4th Amendment, 5th Amendment, 6th Amendment, 8th Amendment, and 14th Amendment. This paper will specifically examine the constitutional issues which arise from publishing mugshots in the age of screenshots and digital media – and not the privacy issues concerned with the matter. In doing so, Part I of this paper will provide a brief history of the utility of mugshots and rise of mugshots in the digital age. Part II of this paper will analyze the claims of Due Process violations when the people, police departments, the press, and private companies publish mugshots. Part III of this paper will analyze the First Amendment issues attached to publishing mugshots in the digital age – particularly Freedom of Press and Freedom of Speech positions on both sides of the issue. Part IV of this paper will analyze a court case’s Eight Amendment violation claim. Part V of this paper will highlight recent laws that addressing publishing mugshots in different U.S. states. Lastly, Part VI of this paper will provide recommendations rooted in the constitutional interest of the American people
The Internet Immunity Escape Hatch
No full textInternet immunity doctrine is broken, and Congress is helpless. Under Section 230 of the Communications Decency Act of 1996, online entities are absolutely immune from lawsuits related to content authored by third parties. The law has been essential to the internet’s development over the last twenty years, but it has not kept pace with the times and is now deeply flawed. Democrats demand accountability for online misinformation. Republicans decry politically motivated censorship. And all have come together to criticize Section 230’s protection of bad-actor websites. The law’s defects have put it at the center of public debate, with more than two dozen bills introduced in Congress in the last year alone. Despite widespread agreement on basic principles, however, legislative action is unlikely. Congress is deadlocked, unable to overcome political polarization and keep pace with technological change. Rather than add to the sizeable literature proposing changes to the law, this Article asks a different question—how to achieve meaningful reform despite a decades-old statute and a Congress unable to act. Even without fresh legislation, reform is possible via an unlikely source: the Section 230 internet immunity statute that is already on the books. Because of its extreme breadth, Section 230 grants significant interpretive authority to the state and federal courts charged with applying the statute. This Article shows how, without any change to the statute, courts could press forward with the very reforms on which Congress has been unable to act
Big Tech\u27s Tightening Grip on Internet Speech
No full textOnline platforms have completely transformed American social life. They have democratized publication, overthrown old gatekeepers, and given ordinary Americans a fresh voice in politics. But the system is beginning to falter. Control over online speech lies in the hands of a select few—Facebook, Google, and Twitter—who moderate content for the entire nation. It is an impossible task. Americans cannot even agree among themselves what speech should be permitted. And, more importantly, platforms have their own interests at stake: Fringe theories and ugly name-calling drive away users. Moderation is good for business. But platform beautification has consequences for society’s unpopular members, whose unsightly voices are silenced in the process. With control over online speech so centralized, online outcasts are left with few avenues for expression. Concentrated private control over important resources is an old problem. Last century, for example, saw the rise of railroads and telephone networks. To ensure access, such entities are treated as common carriers and required to provide equal service to all comers. Perhaps the same should be true for social media. This Essay responds to recent calls from Congress, the Supreme Court, and academia arguing that, like common carriers, online platforms should be required to carry all lawful content. The Essay studies users’ and platforms’ competing expressive interests, analyzes problematic trends in platforms’ censorship practices, and explores the costs of common-carrier regulation before ultimately proposing market expansion and segmentation as an alternate pathway to avoid the economic and social costs of common-carrier regulation