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Environmental Rights for the 21st Century: A Comprehensive Analysis of the Public Trust Doctrine and Rights of Nature Movement
Get PDFThis Article contrasts two theoretically distinct approaches to pursuing related objectives of environmental protection: the public trust doctrine and the rights of nature movement. It reviews the development of public trust and rights of nature principles in both domestic and international legal contexts, and explores points of theoretical commonality and contrast between the two, giving special attention to the opposing systems of environmental ethics from which the anthropocentric public trust and ecocentric rights of nature principles arise. The marked jurisdictional variation associated with both approaches suggests their evolving and inchoate nature as a guarantor of environmental rights. Moreover, both are especially oriented toward the protection of waterways, suggesting the limitations of conventional environmental law to provide adequate protection, and the resulting resort to alternative means. After reviewing the historical origins of the public trust doctrine in Roman and English common law, the article recounts its reception and development in U.S. law, leading to extraordinary jurisdictional diversity along the axes of the resources to which the trust applies, what values the trust protects, what mechanisms of law vindicate trust principles, and diverging legal theories in different states about the nature of the doctrine itself. It offers a snapshot of the diversity of the doctrine in sample states of California, Idaho, Pennsylvania, Michigan, Colorado, Hawaii, and Florida, and then reviews the state of public trust principles in nations beyond the United States. It then provides an overview of the rights of nature movement, both internationally and domestically. It provides the first scholarly survey of major rights of nature laws enacted throughout the world, and then reviews a series of local rights of nature bills introduced and enacted in American municipalities and Native American tribes, as well as judicial and legislative efforts to block them. It especially focuses on unfolding disputes in Florida, where multiple local governments are experimenting with rights of nature ordinances, and Orange County voters adopted a Bill of Rights charter amendment to protect the local river system from extraction in the same year that the state legislature statutorily preempted local rights of nature ordinances from effect. Finally, it compares and contrasts the two approaches, considering how these diverging anthropocentric and biocentric frames of reference provide different answers to basic questions of environmental management. It asks whether the doctrines can provide mutual support or are destined to undermine one another. It also considers the ways each model is used as a tool of political advocacy in legislative and administrative contexts beyond litigation. Both partner failures in litigation with more promising impacts in the political arena, where the motivating ideas can become a galvanizing force for policy change. Indeed, the enormous jurisdictional variation among both approaches—each a mosaic, rather than a monolith—signals the extent to which they are still evolving, and may long remain inchoate vessels of advocacy into which the champions of vulnerable environmental values pour both their frustrations and their hopes
Pragmatic Legalism: Revisiting America\u27s Order After World War II
Get PDFIn recent years, persistent questions regarding America’s role in the world have prompted scholars to revisit the history of World War II and its aftermath, when the foundations of our contemporary international order were arguably laid. Scholarly accounts of the period typically assert that the United States led the way for the establishment of a legalized international order, centered around the norms of international human rights and those of the law of war, and urge that the United States remain true to the same principles in the twenty-first century. More recently, scholars mistrustful of calls for a robust, militarized humanitarian agenda have argued that a much more dismissive attitude toward international law prevailed at the time, in large part due to the reigning influence of international relations realism. Their accounts dovetail with a steadily growing skepticism toward international law in today’s foreign policy establishment. This Article argues that postwar foreign policy was defined by neither an unyielding fidelity to a norms-based international order nor an enduring realist dismissal of that project. Rather, what defined the postwar period was an eclectic, variegated and situational approach to law and regulation: a mode of “pragmatic” legalism. Pragmatic legalism consciously developed as a reaction to the legal sensibilities of prewar foreign policymakers, who promoted the codification of international norms and the judicial resolution of international disputes. It also developed as a result of larger transformations in American legal thought, notably the rise of sociological jurisprudence and legal realism. The history of pragmatic legalism reveals the possibilities for renewal in contemporary foreign policy, which currently oscillates between moralizing internationalism and skeptical disengagement. A broader array of legal possibilities is imaginable, including one that evokes the pragmatic spirit. This history also calls attention to the limits of such efforts at renewal. The pragmatic style, once progressive and experimental, eventually helped fuel regressive projects internationally. As in the past, so too today, legal renewal alone can hardly resolve the pressing questions surrounding America’s global presence
The Case against Tax Subsidies in Innovation Policy
Get PDFUntil recently, intellectual property (IP) scholars agreed that patents were the prime innovation tool to aggregate decentralized information. This case for the property approach, which argues patents are appropriate when information about possible inventions and the social value of inventions are hidden, is now also under pressure in the literature. IP scholars argue that tax subsidies for firms that invest in research and development (R&D) replicate many of the merits of the patent system under conditions of asymmetric information. Based on developments in institutional economics, this Article shows that tax subsidies are not market-set incentives and are not optimal tools for aggregating decentralized information. Tax subsidies target specific investments ex ante in relation to the market process when there is little information on the costs of specific projects or their social value. Governments lack the knowledge required to decide which projects to support and to calibrate the subsidies according to their social value. Comparatively, a patent system is better equipped for the decentralized nature of information. Moreover, it relies on entrepreneurs and inventors to decide which new projects to pursue and on consumers within the marketplace to evaluate the value of these innovations. Based on public choice theory, the Article also argues tax subsidies for innovation are particularly vulnerable to rent-seeking, leading tax dollars to be captured by the politically powerful-not by disruptive newcomers. From an institutional perspective, a more sensible innovation policy lies in simplifying, stabilizing, and generalizing the rules of property and contract that set the market process in motion. This is therefore the first article, amid growing scholarly consensus concerning subsidies as the new innovation tool, to present both a fullblown critique and a radical alternative. In contrast to contemporary innovation scholarship, which is often animated by presumptions of perfect information and benevolent policymakers, this Article demonstrates the superiority of the property approach under imperfect conditions
Emergent Medical Data: Health Information Inferred by Artificial Intelligence
Get PDFArtificial intelligence (AI) can infer health data from people\u27s behavior even when their behavior has no apparent connection to their health. Al can monitor one\u27s location to track the spread of infectious disease, scrutinize retail purchases to identify pregnant customers, and analyze social media to predict who might attempt suicide. These feats are possible because, in modern societies, people continuously interact with internet-enabled software and devices. Smartphones, wearables, and online platforms monitor people\u27s actions and produce digital traces, the electronic remnants of their behavior. In their raw form, digital traces might not be vey interesting or useful; one\u27s location, retail purchases, and internet browsing habits are relatively mundane data points. However, AI can enhance the value of digital traces by transforming them into something more useful-emergent medical data (EMD). EMD is health information inferred by artificial intelligence from otherwise trivial digital traces. This Article describes how EMD-basedp rofiling is increasinglyp romoted as a solution to public health crises such as the COVID-19 pandemic, gun violence, and the opioid crisis. However, there is little evidence to show that EMD-based profiling works. Even worse, it can cause significant harm, and current privay and data protection laws contain loopholes that allow public and private entities to mine EMD without people\u27s knowledge or consent. After describing the risks and benefits of EMD mining and profiling, the Article proposes six different ways of conceptualizing these practices. It concludes with preliminary recommendations for effective regulation. Potential options include banning or restricting the collection of digital traces, regulating EMD mining algorithms, and restricting how EMD can be used once it is produced
Explaining Florida Man
Get PDFTlorida Man is a popular cultural phenomenon in which journalists report on Floridians\u27 unusual (and often criminal) behavior, and readers relish in and share the stories, largely on social media. A meme based on Florida Man news stories emerged in 2013 and continues to capture people\u27s attention nationwide. Florida Man is one of the latest unique trends to come from the Sunshine State and contributes to Florida\u27s reputation as a quirky place. Explanations for Florida Man center on Florida\u27s Public Records Law, which is known as one of the most expansive open records laws in the country. All states and the District of Columbia have open records laws that establish procedures for individuals to obtain access to public records in the spirit of government transparency. Because many Florida Man stories are based on arrest records and incident reports and incorporate mugshots, those who have written about Florida Man claim that the Florida Public Records Law, which allows reporters to access those records, is behind the trend. The problem with this theory is that it incorrectly implies that Florida\u27s Public Records Law offers journalists advantages in writing stories that other states\u27 laws do not. Despite the broad grant of access to police documents that Florida\u27s open records law provides, other states\u27 open records laws similarly provide the public with access to arrest records, incident reports, and, although to a lesser extent, mugshots. Other provisions of Florida\u27s Public Records Law that contribute to the ease of access to Florida\u27s public records compared with other states\u27 equivalent laws are largely irrelevant to Florida Man\u27s existence. Even coupled with the characteristics of Florida and its residents that many people claim are unique, the open records law-based theory for Florida Man\u27s existence falls short of explaining the phenomenon. This Article posits that the primary reasons for Florida Man\u27s popularity are preexisting popular culture trends and the venue in which Florida Man rose to fame: the internet. Internet platforms allow a wide audience-which may already have been receptive to jokes about Florida due to its reputation for being a newsworthy state-to easily consume, share, and re-share Florida Man content, inspiring journalists to continue to write Florida Man stories. This cycle of generation and consumption of Florida Man stories has allowed Florida Man to become one of the longest-living memes in internet history. While the Florida Public Records Law and characteristics of Florida and its people work together to provide raw material for Florida Man articles, the heretofore unmentioned popular culture and internet trend factors of the phenomenon complete the story behind Florida Man\u27s existence
Taboo Transactions: Selling Athlete Biometric Data
Get PDFAs consumers begin to realize the extent to which their biometric and health data are being tracked through wearable devices, new privacy concerns have arisen. These concerns are more than hypothetical as the unregulated sharing and disclosure of biometric and health data may have serious repercussions. This is especially true for the athletes whose data is tracked with precision and where a lucrative market of multiple parties anxious to obtain this data already exists. The ownership and use of this data have become an incredibly complex issue, as sports leagues, teams, and the device makers wrangle over how this data should be used, shared, and potentially commercialized. Recent advances in data analytics have resulted in insights into athletic performance that a little over a decade ago were unimaginable. In Michael Lewis\u27 Moneyball, he described how Billy Beane, the General Manager of the Oakland A\u27s, used advanced data analytics to build a winning baseball team. But biometric data promises even greater insight. This promise has made biometric data a priority across professional and amateur sports, however, it is not just teams and scouts with a major interest in this data, bookmakers and gamblers would also love to get access to this information. In light of the recent expansion of legalized sports gambling in the United States and the desirability of this in formation, we propose that measures need to be taken to protect the interests of professional athletes. We begin our examination by noting the sensitive nature of this type of data, which may include health, location, and performance in formation, requires the establishment of rules regarding how this data can be used with input from the players themselves. Currently, the use of this data may be controlled by the device maker or league rather than the athletes themselves. The concerns that the data collected from an athlete can be used against her in contract negotiations, made publicly available, discovered by competing teams through negligence or cyberespionage, or by gamblers or bookmakers looking to gain an edge must be addressed. We then investigate the important issue of ownership. To what extent should the league or the device maker be able to profit from a player\u27s athlete bometric data (ABD)? Not only do very few states have regulations addressing these issues, the current handling of ABD through bilateral agreements which do not include all stakeholders is insufficient. We conclude by proposing a new paradigm for addressing these concerns: Data Trusts
FSU Law Focus - 12/10/2021
Get PDFFrom the Dean: Raising the Bar Professionalism+ Program Advisory Board; Retirement Class Notes Wanted; Alum Profile: Harold E. Rick Grant (\u2774); Student Profile: 3L Precious Chavezhttps://ir.law.fsu.edu/fsu-law-focus/1065/thumbnail.jp
FSU Law Focus - 02/19/2021
Get PDFFrom the Dean: Honorable Robert J. Luck visits through Jurist in Residence Program; Business Law Lecture Features Diversity, Equity and Inclusion in Law Firms; Alum Profile: Jason D. Lazarus (’96); Student Profile: 3L Hannah DuShanehttps://ir.law.fsu.edu/fsu-law-focus/1322/thumbnail.jp
Business Law beyond Business
Get PDFThe law of modern business entities is poorly understood from a comprehensive perspective. This area of law has changed significantly in the last several decades in ways that have gone largely unnoticed. The lack of attention is unfortunate because developments in the law of business-entity governance have implications for many other areas of law, beyond what are normally conceived as business-law subjects. Modern organizational statutes create something new to the legal system: a legal entity that is governed only or mainly by an operating agreement and that is capable of holding basic legal rights and forming fundamental legal relationships (like entering contracts or owning property). Effectively, the result is that “a contract” (or at least something closely akin to a contract) can act as a legal entity. This capability may sound mundane, but the flexibility of modern business entities enables them to provide immediate “workarounds” to many restrictions in other areas of the law, such as contract law, property law, and family law. Modern business entities are a hyper-flexible transactional tool that can lead their organizers to achieve goals that other areas of law have not contemplated, ranging from the capabilities of legal personhood for those who otherwise lack it (like nonhuman computer systems and humans that the law deems incapable of contracting, such as children or those with mental illnesses) to circumvention of many of the traditional restrictions in property law