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Fragmentation of International Cybercrime Law
Full text linkCybercrime is global. But legal approaches to combating cybercrime have been fragmented. The first such multilateral legal mechanism, the Budapest Convention on Cybercrime, was launched in 2001 and positioned by its primarily Western drafters as a global instrument. But it has struggled to achieve full international uptake. Instead, many states have used regional organizations to create their own legal mechanisms addressing cybercrime and cybersecurity threats. More recently, the UN Convention on Cybercrime has emerged as an alternative to this fragmented landscape. But the emergence and significance of this “convergent” option cannot be understood without the context of the deep fragmentation that preceded it.
This Article examines that fragmentation. In doing so, it also offers the first law review analysis of all regional cybercrime conventions together. Through this comparative legal analysis of the texts, this piece establishes that multilateral mechanisms for governing cybersecurity and cybercrime are divergent. It then categorizes the approaches taken, providing structured ways of viewing differences between the conventions’ details. Three distinct views of cybercrime and cybersecurity emerge: an ordinary crimes approach, a high politics approach, and a domestic management approach. The Article argues that each region leverages its chosen approach in service of the concept of sovereignty its member states prioritize in the international system, both online and offline. These broader political goals help explain the high degree of fragmentation in this issue area. These cybercrime conventions were never just about cybercrime. The stakes are higher: these conventions are tools in contesting the broader political global order, a contestation that informs what is now happening at the United Nations
Climate Proof Electricity
Full text linkThe devastating impacts of climate change make themselves known in the form of fires, floods, droughts, storms, extreme heat and cold, and worsening socioeconomic conditions around the globe. At the same time, the U.S. electricity system has never been more vulnerable to severe weather. Even as we embark on a national project to decarbonize the electricity system by 2035, the U.S. leads the developed world in power outages. These outages are in large part due to aging infrastructure, improperly weatherized systems, vegetation crashing down on transmission and distribution lines and—perhaps most devastating of all—wildfires caused by fallen power lines in places where drought and poor land management have made the surrounding area a veritable tinderbox. But even though the country is experiencing more frequent and intense bouts of extreme weather due to climate change, not enough is being done to make the electricity system more reliable or resilient.
This Article argues that climate change adaptation should be considered a separate category from both grid reliability and resilience. This is true for three reasons: first, regulatory approaches to reliability and resilience reflect old ideas and maintain utility economic interests; second, those same utility interests are partly responsible for the brittle state of the grid; and third, most existing proposals for climate adaptation will result in skyrocketing consumer energy bills, without any guarantee of effectiveness. By reframing climate adaptation as a separate category of risk and regulation, lawmakers can approach regional planning for disasters in creative ways and remove the cost of adaptation measures from regulated rates, recognizing that electricity systems are critical infrastructure. In making this argument, this Article engages with the current state of utility regulation to illustrate that there is no clear path to safe, reliable electricity in the climate change era without fundamentally changing how utilities and regulators engage with these issues
The Unavoidable Consequences of Homelessness
No full textThe U.S. Supreme Court’s recent Grants Pass v. Johnson decision sounded the death knell for Eighth Amendment protections for people experiencing homelessness. The decision not only overruled key Ninth Circuit decisions, but also severely cabined the Court’s own precedent, allowing cities across the country to jail and fine people for doing nothing other than surviving in public space when they have no reasonable alternative. The Eighth Amendment’s prohibition against cruel and unusual punishment is a powerful symbol of America’s aspiration to realize the dignity and humanity of all its people, especially those who are marginalized and vulnerable to systemic discrimination and abuses in the legal system. But Johnson denied any measure of this worth to unhoused people, obliterating this protection against the criminalization of homelessness. Justice Sotomayor’s dissent argued the majority decision “leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested.” Thus, Johnson sends a powerful, dehumanizing message that reverberates beyond the courts: it is neither cruel nor unusual to punish a person who is involuntarily homeless merely for being so. This Article surveys the contexts leading to the Johnson case, analyzes the decision itself, and assesses its impacts on the future of homelessness and homeless rights advocacy. Ultimately, it argues that punishing an unhoused person for the “unavoidable consequences of being human” is such a pinnacle of cruelty that no civilized society should pursue or accept it. Instead, American governments and the general public should embrace proven, nonpunitive solutions to homelessness. Meanwhile, advocates can engage many legal and organizing tools to bend the law away from cruelty and toward material justice
Drone Assassinations: The Limits of the President’s Constitutional Authority to Strike Foreign Military Officers with Drones Without Congressional Approval
No full textWhile drones are a significant asset to the United States Military, their presence also presents unique challenges. The ability to stalk and engage in assassination style killings of high-ranking foreign military officials without ever placing United States forces presents a new issue where the President can intrude on Congress’s power to declare war. This is especially true with regard to the War Powers Resolution, which requires military action without congressional authorization to be limited in nature, scope, and duration. While the Soleimani strike fell short of violating this part of the War Powers Resolution test, perhaps only due to the benefit of hindsight, it still serves as a chilling warning of how quickly drone technology can alter international relations in deadly ways
The World Cup as a Racial Rebuilt Project
Full text linkScholars, particularly Critical Race Theorists, have written trenchantly about the law’s role in racial formation. Yet, while instrumental in this process, the law does not stand alone as a conduit of making race. Particularly for misrepresented groups, like Arabs, who struggle to find existential self-determination between imperial identity impositions, ethnic cleansing, and clashing racial ascriptions, the law fails to create racial categories that reflect their lived realities.
Beyond the asymmetrical landscape of legal ordering, sport stands as a powerful site of racial formation. Sport is where racialization can unfold indigenously, rebelliously, and “from the bottom.” Particularly soccer, a game of unvrivaled global resonance, especially within Arab societies where the “beautiful game” provides a venue for protest, possibility, and redefinition. This was on full display at the 2022 World Cup in Qatar when the host nation and the historic performance of the Moroccan National Team rebuilt a transnational Arabism that contested colonial divides and contemporary legal designations, ultimately unveiling the sport’s capacity to remake race.
This Article centers the World Cup as a counter-narrative that reconstructed Arabism in the native image of the host nation, Palestine, and the Moroccan team, and against the stigmatized racialization ascribed by Western laws. The 2022 World Cup did so by: (1) demystifying imperial and War on Terror constructions of Arab identity; (2) reconstructing an indigenous modality of transnational Arabism in its stead; (3) curating a generative setting for a “mosaic racialization” that harmonized the diversity of a peoples who found common existential ties as Arabs; and (4) providing a template for rebuilding Arab identity within the shiftin
Does Third Party Litigation Funding Need Regulations on Consumer Protection
Full text linkTranscript of a roundtable discussion during the Third-Party Litigation Symposium at the S.J. Quinney College of La
Litigating Predator Management
Full text linkDespite significant gains over the last half-century, predators such as mountain lions, wolves, and bears are in the crosshairs once again. Scientific management, democratic principles, and the holding of wildlife resources in trust for the public are all foundational pillars of the North American Model for Wildlife Conservation, yet state wildlife agencies and legislatures routinely fail to uphold these values where predators are concerned. Many of these tensions were thrust into the public consciousness in 2020 when gray wolves were temporarily delisted under the Endangered Species Act (ESA), resulting in a disastrous wolf hunting season in Wisconsin. States that have managed mountain lion and wolf populations for years are now stripping protections, significantly increasing hunting quotas, and legalizing long-forbidden hunting methods. The growing tensions over predator management have spilled into courtrooms across the nation, with animal rights and environmental advocacy groups actively litigating predator hunting in many states.
This Article examines past and present legal challenges that aim to overturn state predator management schemes. After building a database of predator hunting litigation cases, I taxonomized them into distinct categories: federal claims based on the ESA, National Environmental Policy Act (NEPA), or public lands statutes; state informational challenges; state procedural claims; substantive challenges based on state law; animal welfare laws; tribal reserved treaty rights; and the public trust doctrine. Notably, this research indicates that few challenges have been successful. The confluence between the nature of litigating against a state government and the structure of American wildlife law makes winning incredibly difficult. State wildlife agencies have vast authority under exceedingly broad legislative delegations, and agencies are given significant deference on wildlife science issues despite routinely relying on fallacious logic and a paucity of data. Further, hunting is privileged over other values and management tools. Suggestions to improve state predator management include the use of experimental regulations to improve scientific data, changes to the structure of wildlife governance, and revamping the public trust doctrine for wildlife
Fighting Drugs with Drugs: Medical Mushrooms in Utah’s War on Opioids
Full text linkIn addition to the happy side effect of improving psilocybin’s odds of rescheduling under the proposed new CAMU standard (potentially increasing national psilocybin accessibility for opioid recovery), Senator Escamilla’s S.B. 200 could represent the beginning of a new era for the State of Utah in its battle against opioids. Despite S.B. 200’s failure to pass, the medical application of psilocybin under S.B. 266 (S.B. 200’s spiritual successor) should positively impact several interconnected issues in Utah, including mental illness, addiction, and transiency. However, specific proof of psilocybin’s effectiveness in combatting opioid addiction should be especially persuasive in garnering bipartisan support for future expansion of approved usage and funding for medical psilocybin. Data on psilocybin-assisted opioid addiction recovery, gathered under S.B. 266’s reporting requirements, could at long last mean victory for Utah in its war on opioids
An International Prosecutor as U.S. Special Counsel
Full text linkThe appointment of Jack Smith to investigate then-former President Donald Trump brought to the fore the essential qualities for special counsels who act when a conflict of interest precludes investigation by the Department of Justice. Most attention on Smith centered on his domestic work and its correlation with a special counsel’s responsibilities. That emphasis, however, obscured the most salient line on his resume: international investigator and prosecutor. The conclusion of Smith’s tenure as special counsel following the election of Donald Trump to a second term as president provides an opportunity to consider the skills and qualifications that matter most in a special counsel, particularly where an investigation will stress the rule of law.
This Article argues that a prosecutor with international criminal justice expertise (an “international prosecutor”) is the best choice for special counsel when the rule of law is at stake. Vindicating and restoring the rule of law is the sine qua non of an international prosecutor’s duty. Fulfilling that duty often demands that international prosecutors investigate and prosecute the highest government officials, including heads of state, while also confronting continued attacks on the legitimacy of the prosecution, the administration of justice, and the witnesses who testify. No domestic lawyering has quite the same resonance.
In light of the uncertainty regarding the future of the special counsel role, this Article offers concrete suggestions for the specific qualifications of those holding the special counsel position, particularly when the rule of law is under attack
Sometimes Is Not Enough: A Legislative Solution to the Failures of the Federal Government in Compensating Civilians Harmed by U.S. Military Action
Full text linkThe United States has a large military presence abroad. With that presence has come instances of human rights abuses. This Note highlights the issues of civilian deaths and poisoning at the hands of the U.S. military, focusing specifically on the U.S.’s Middle Eastern theater of operations. It advocates for a comprehensive statutory scheme that requires uniform compensation to civilians while also requiring public disclosures to ensure government accountability. Previous research has focused on the cause of the U.S. military’s human rights violations abroad and methods of addressing physical and environmental harms separately. This Note proposes an approach that encompasses both harms in one solution to ensure that abuses are taken seriously and dealt with effectively