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A Rendezvous in Outer Space Law: The Challenge of Establishing Binding Regulations for Dual-Use Capabilities
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When the Soviet Union launched Sputnik in 1957, it was not only a significant leap forward in the Space Race with the United States, but also the catalyst for a series of international treaties that would serve as the foundations of outer space law. In the last decade, the world has seen similar technological leaps in the commercial sector. Elon Musk’s SpaceX has launched spacecraft with all civilian crews while Jeff Bezos and Richard Branson aim to expand the market for commercial space flights. Lockheed Martin is one of many companies looking to offer commercial services for maintaining satellites in-orbit. The commercial industry is on the verge of applying decades of research and development, but the law has not kept pace with such advancements.
The technological leaps in the commercial sector are accompanied by an increase in spacecraft. Thousands of satellites, supplied by governments, militaries, and commercial companies, now orbit the Earth in the low earth orbit (“LEO”) and geosynchronous orbit (“GEO”). LEO is located up to 1,200 miles above Earth and primarily used for communications and imaging satellites. In GEO, a spacecraft’s orbital speed matches the Earth’s rotation, giving it persistent coverage over a single area. GEO is therefore primarily used for telecommunications and Earth observation.
While governments and militaries now share outer space with the civilian sector, for countries like the United States, outer space is still a strategic asset. The United States made clear that protecting its outer space assets was a priority when it created the U.S. Space Force in 2019. Space Force was established under the Department of Defense (“DoD”) to protect and defend U.S. interests in space, but it mostly consolidated DoD space operations that had been in place since the early days of space exploration and race to the Moon.
International treaties satisfied the legal requirements of the early space era because only the United States and the Soviet Union were capable of launching and operating spacecraft. Since then, there has been a significant increase in the number of space-faring and space-launching states. Space-faring states are those that have satellites; space-launching states are those that are capable of launching rockets with payloads. There are over seventy space-faring nations today but less than twenty space-launching states.
Russia and the United States are still two of the major space-launching states, alongside China, but the current political landscape is different than it was during the Moon race. The United States is reticent to enter into new treaties, and Russia is actively withdrawing from existing arms treaties. China and Russia proposed the Draft Treaty on the Prevention of the Placement of Weapons in Outer Space and of the Threat of Use of Force Against Outer Space Objects (“PPWT”) to the United Nations (“UN”), but it has not progressed beyond a proposal nor does it have United States support. The stalled PPWT is an example of the current difficulty in achieving a new international space treaty, particularly one that presents national security issues
The Criminal System Under Racial Capitalism
Full text linkIn 2021, major segments of the business lobby converged around a consensus for criminal system reform. As the United States experienced historic levels of labor market tightness, business groups argued for removing “barriers” to employment that system-involved people face. Just a few months later, the orientation of business to the criminal system was decidedly more mixed. By March 2022, the U.S. Chamber of Commerce, the country’s most powerful business lobby, had stepped to the forefront of the national moral panic around retail theft, launching a vigorous campaign to defend and even strengthen criminal punishment across the country.
Anchoring its analysis in the concept of racial capitalism, this Article argues that these disparate pictures, together, illustrate the criminal system’s constitutive role in the U.S. political-economic order. The criminal system plays such a role, I argue, by serving as both a labor governance institution and as a staging ground for struggles around how the U.S. political economy should work, and for whom.
The Article proceeds as follows. Part I develops the concept of racial capitalism to anchor the analysis that follows. Part II surveys the leading scholarly accounts of the criminal system’s labor governance functions. I then reconstruct and supplement these accounts to develop a new theoretical framework. I argue that the criminal system should be understood as rationing total available employment, and channeling and sorting system-involved people into precarious work. In these respects, the system functions as a foil to the idea of a federal job guarantee, which labor and civil rights groups struggled for unsuccessfully in the 1970s. This theoretical groundwork leads into a critique of the business community’s consensus around reform, which is better understood as part of a multilayered strategy to preserve an imbalance of power between workers and employers. Part III develops an account of the prison-industrial-complex to explain how its structural foundations, rooted in state and local balance sheets, prime the criminal system to serve as a staging ground for broader political-economic struggle. While recent scholarship has focused on the critiques and demands of abolitionist and other left social movements to illustrate this function, I look in the other ideological direction. I analyze how the U.S. Chamber of Commerce has used the issue of retail theft to simultaneously strengthen the criminal system across the country, as well as to defend its idea of “American free enterprise.” This case study shows how racialized state violence and anti-state ideas about free enterprise are joined together in a project of mutual justification. Part IV concludes. Given the overall picture this Article develops, I argue that we should revisit the idea of a federal job guarantee, as a path not taken, and potential program for the future. But whether the criminal system ceases to function as a major labor governance institution any time soon will depend, in part, on whether labor movements recognize its constitutive role in the broader political economy and oppose it. The business lobby, on the other hand, has already made the connection
Beyond the Sidelines: Recognizing a Coach’s Role in Sports Under New York’s Primary Assumption of Risk Doctrine
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This Note explores the New York Court of Appeals’s development of its primary assumption of risk doctrine. Ultimately, this Note argues that the New York Court of Appeals should adopt the Supreme Court of California’s recognition that the role of a coach is different than the relationship between coparticipants. Part I provides an overview of the origins of tort law in the sports context by examining New York and California’s common law assumption of risk doctrines. Part II analyzes how the New York Court of Appeals developed its primary assumption of risk doctrine differently than the Supreme Court of California. Part III distinguishes between coaches and athletes. Part IV proposes that the New York Court of Appeals should reinstitute its primary assumption of risk balancing framework
“Major Questions” Malarkey: An Arbitrary and Capricious New Doctrine for Vetoing Controversial Agency Rules
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In 2022, after years of hinting at the idea, the United States Supreme Court officially adopted the “major questions” doctrine in West Virginia v. EPA. Commentators have already spilled plenty of ink trying to make sense of what this might portend, but so far seemingly everyone has accepted at face value the Court’s framing of the issue that it confronted in that case. This essay offers a slightly different perspective on the decision and suggests that closer attention to the precise nature of the question posed therein might reveal a distinctive flaw at the heart of the majority’s newfangled clear statement rule—as I will argue, it only sows confusion to conflate fundamental legal questions about jurisdiction (i.e., had Congress empowered an agency to act in a particular regulatory space?) and more policy-laden questions about the substantive merits of a rule (i.e., did the agency act in an arbitrary and capricious fashion?)
A More Modest Major Questions Doctrine Rooted in the Appointments Clause
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In this Essay, I explore how this constitutional mandate might guide courts adjudicating disputes that arise when agencies interpret ambiguous statutes in a manner granting them powers beyond those expressly vested by Congress. In Part I, I explain when such agency assertions of authority may implicate Appointments Clause limits on office creation. I also demonstrate how the test of Shoemaker v. United States, which assesses whether expanding an officer’s authority creates a new office for Appointments Clause purposes by adding duties not “germane” to existing duties, provides a standard for judicial review of such claims. Agency claims to authority not expressly referenced in a statute should be upheld if such authority is clearly “germane” to duties expressly vested by statute in the agency’s officers, and rejected when it is not. This test is directly anchored in constitutional text and involves a quintessentially judicial task of enforcing express constitutional limitations on the political branches. It also focuses on statutory text rather than on prior agency action or inaction, and considers what Congress can authorize rather than speculating about what Congress intended to authorize. Therefore, it may be less susceptible to the criticisms leveled at West Virginia’s reliance on nebulous references to the separation of powers and speculation about congressional intent to justify judicial claims to authority to make atextual, politically-loaded determinations of what policy issues are “major.
In Part II, I identify the relevant criteria under a germaneness approach to assessing agency claims to authority, based on the applicable statutory framework in Shoemaker and the Supreme Court’s subsequent application of the Shoemaker test in Weiss v. United States. I demonstrate that both decisions focused on the type of duties added to an office and how they related to the general subject matter over which the office had previously been assigned responsibility by statute. In contrast to West Virginia, these decisions did not assess the “importance,” “significance,” or “magnitude” of these duties. Weiss further indicates that the test only considers applicable statutory provisions, without giving any weight to prior executive branch action or inaction.
In Part III, I describe how a major questions doctrine tied to the Appointments Clause and its germaneness standard would operate. Such an approach would resemble the analysis urged by the West Virginia dissent, which argued on nonconstitutional grounds that the relevant issue is how an agency’s claimed authority compares to its “usual portfolio.” Thus, a major questions doctrine rooted in the Appointments Clause would consider whether an agency is asserting authority over subject matter not closely related to matters that Congress expressly authorized it to regulate. It would more closely focus on statutory text and give no weight to political or economic importance or to any failure by the agency to previously assert similar authority. I demonstrate that this approach might have supported the Court’s invalidation of an eviction moratorium in Alabama Association of Realtors v. HHS31 but on more limited grounds, and would have likely resulted in upholding the EPA regulation that West Virginia invalidated. Thus, a major questions doctrine tied to the Appointments Clause would, on average, have a more modest impact than the doctrine endorsed by West Virginia, which treats claims to authority over subject matter outside an agency’s “expertise” as just one of several potential triggers for the doctrine
“Don’t Say Gay”: Florida’s Suppression of LGBTQ+ Identities Under the Guise of Parental Empowerment
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Part I of this Note first discusses the legislative and judicial history of Title VII of the Civil Rights Act of 1964 (“Title VII”) and Title IX. Primary attention is directed toward the interplay between the statutes, their similarities, and the theories pursuant to which discrimination may be established under each. Next, this Part discusses the historical debate over the scope of “sex” discrimination under Title VII and Title IX. Then, this Part examines the landmark Supreme Court case Bostock v. Clayton County’s substantial impact on the judicial interpretation of “sex” under Title VII and Title IX. Lastly, Part I concludes with a series of executive interpretations of Title IX and a discussion concerning the role these interpretations play in determining actionable sex-based discrimination nationwide.
Part II of this Note examines the DSG Law’s legislative history, with particular attention directed toward the law’s legislative intent. Next, this Part summarizes the arguments of the Law’s proponents, highlighting the Law’s purported legitimate aims of empowering parents in education and protecting children from exposure to inappropriate sex-based classroom instruction and “indoctrination.” Finally, Part II concludes with a discussion of the Law’s opponents’ views, primarily focusing on the Law’s alleged facilitation of discrimination and sanctioned suppression of protected groups based on sex.
Part III of this Note argues the DSG Law violates Title IX because it impermissibly discriminates on the basis of sex under both disparate treatment and disparate impact theories. First, Section III.A discusses the rationale for employing Bostock’s expansive interpretation of sex-based discrimination under Title VII to claims under Title IX, arguing that because discrimination based on sexual orientation and gender identity violates Title VII, it likewise violates Title IX. Then, Section III.B explains sex-based discrimination under Title IX using a disparate treatment theory and argues that the DSG Law disparately treats similarly situated students on the basis of sex. Lastly, Section III.C discusses sex-based discrimination under Title IX using a disparate impact theory and argues that the Law disparately impacts similarly situated students and teachers on the basis of sex.
Part IV’s proposed solution to remedy facilitation of sex-based discrimination in schools is to amend Title IX to add sexual orientation and gender identity as explicitly protected categories within the statute. Part IV argues that Title IX must be amended for three primary reasons: (1) to prevent clashing interpretations of Title IX dependent upon which presidential administration currently controls; (2) to ensure uniformity in judicial interpretation of sex-based discrimination claims under Title IX; and (3) to validate the identities of and to conclusively establish substantive federal anti-discrimination protection for LGBTQ+ individuals in schools by preempting state laws like Florida’s DSG Law
Gender Sidelining in Schools and the Scourge of Single Sex School Leadership
Full text linkConcerns about unequal gender representation have plagued virtually every workplace in recent decades. In countless professions, even those in which women comprise a majority of the workforce, leadership positions are dominated by men. Often, the inability of women to rise within the professional hierarchy stems not only from overt acts of sex discrimination, but also from more subtle and nuanced bias in the workplace—bias referred to in other research as “gender sidelining.” This sidelining seems particularly paradoxical when it arises in professions in which women already have been funneled due to their gender—including the education sphere. In this way, the K–12 education world represents a microcosm of the bias that female workers encounter more generally—workplaces rife not only with intentional bias, but also with more nuanced barriers, which culminate to create a work environment where women face dead ends, diversions and delays in ways not reached by traditional antidiscrimination laws.
This article examines some of the barriers that have prevented women in the K–12 education world from achieving leadership roles, focusing, in particular, on obstacles that largely sit outside of the law—incidents of gender sidelining that would not on their own form the basis of a viable sex discrimination claim. Drawing on both legal principles and social science research, this article not only identifies the extent to which the careers of many women in education have been derailed by various forms of gender sidelining, but also provides suggestions for how to ameliorate these destructive impacts