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Balance Requirements for Standards Development Organizations: A Historical, Legal and Institutional Assessment
Get PDFMost technical standards-development organizations (SDOs) have adopted internal policies embodying “due process” criteria such as openness, balance of interests, consensus decision making and appeals. These requirements arise from numerous sources including antitrust law, international trade law, public procurement requirements and institutional norms. Yet balance criteria lack a generally-accepted definition and the manner in which they are implemented varies, sometimes dramatically, among SDOs. Recently, there has been a renewed interest in the principle that SDOs should ensure a balance of interests among their stakeholders, including in the development of intellectual property rights policies. This article explores the origins and meaning of the balance requirement in the U.S. and EU, and identifies distinct legal, administrative and institutional modalities in which balance requirements are imposed, as well as existing antitrust and competition law requirements surrounding SDO balance
Making America a Better Place for All: Goal 6 Clean Water and Sanitation
Get PDFIn 2015, the United Nations Member States, including the United States, unanimously approved 17 Sustainable Development Goals (SDGs) to be achieved by 2030. The SDGs are nonbinding; each nation is to implement them based on its own priorities and circumstances. This Article argues that the SDGs are a critical normative framework the United States should use to improve human quality of life, freedom, and opportunity by integrating economic and social development with environmental protection. It collects the recommendations of 22 experts on steps that the Biden-Harris Administration should take now to advance each of the SDGs. It is part of a book project that will recommend not only federal actions, but also actions by state and local governments, the private sector, and civil society. In the face of multiple challenges and opportunities, this Article is intended to contribute to a robust public discussion about how to accelerate the transition to a sustainable society and make America a better place for all
The Religion of Race: The Supreme Court as Priests of Racial Politics
Get PDFThe tumultuous summer of 2020 opened the eyes of many Americans, leading to a general consensus on one issue—racism still exists. This Article offers a new descriptive account of America’s history that can contextualize the zeitgeist of racial politics. It argues that the Founding Fathers created a national civil religion based on racism when they compromised on the issue of slavery in the creation of the Constitution. This religion, called the Religion of Race, is built on a belief system where whiteness is sacred and Blackness is profane. The sacred text is the Constitution, and it is interpreted by the Supreme Court who uses the adjudication of cases as a ritual to advance this religion. This Article argues that the Reconstruction Amendments and attendant Civil Rights Acts can best be understood as an attempt by Congress to end this Religion of Race and put all citizens on a path to equality. The Supreme Court resisted this attempt, however, as evidenced by cases adjudicated immediately following the Reconstruction period. Thus, a contest ensued that has shaped American racial politics ever since—whether the Supreme Court is interpreting the Constitution of Slavery or the Constitution of Reconstruction and, therefore, whether it will perpetuate or dismantle the Religion of Race
Universal Access to Clean Water for Tribes in the Colorado River Basin
Get PDFThe coronavirus pandemic has tragically highlighted the vast and long standing inequities facing Tribal communities, including disparities in water access. According to the Centers for Disease Control and Prevention (CDC), American Indians and Alaska Natives (AI/AN) are at least 3.5 times more likely than white persons to contract COVID-19. Limited access to running water is one of the main factors contributing to this elevated rate of incidence.
This report describes current conditions among Tribes in the Colorado River Basin. It outlines the four main challenges in drinking water access: (1) Native American households are more likely to lack piped water services than any other racial group; (2) Inadequate water quality is pervasive in Indian country; (3) Existing water infrastructure is deteriorating or inadequate; and (4) Operation and maintenance of water systems is a critical component of ensuring long-term water security.
The report also examines existing federal assistance programs to provide drinking water access to Tribes. In exchange for the cession of millions of acres of lands, Tribes received certain promises from the federal government. These promises often included the establishment of a reservation as a permanent homeland for Tribes. Based upon an underlying trust responsibility, the federal government has a duty to protect Tribal treaty rights, lands, assets, and resources. Access to a clean, reliable supply of water is basic to human health and clearly a necessary component to providing a habitable and permanent homeland. In at least partial recognition and fulfillment of its treaty and trust responsibility to provide access to clean water for Tribes, various federal agencies have established programs that provide support for water related projects. However, these programs are often underfunded and have other limitations. As a result, obtaining significant progress in providing universal access to clean water for all Americans has remained elusive.
Finally, the report concludes with policy recommendations to address Tribal community water needs. Key recommendations include adopting a whole of government approach and fully funding federal programs related to Tribal drinking water projects. A window of opportunity has opened to address water insecurity in Indian country. It is critical that action be taken before that window closes and these issues are ignored for several more generations
Health Information Beyond Pandemic Emergencies: Privacy for Social Justice
Get PDFMoving beyond notice and choice is necessary if data are to be used responsibly for public health. But what directions might this movement take? Transparency and enactment of statutory limits on data uses are the two most prominent possibilities.Transparency could require entities collecting, possessing and using information drawn from more than a specified number of individuals to make public disclosures of their information collection, possession, and use. There are models for developing such transparency requirements. The California CPPA could provide a model for delineating the size of entities required to make such disclosures. The requirements to disclose the results of federally funded research could provide a model for the form disclosures could take. The Native American Graves Protection and Repatriation Act (NAGPRA) could provide a model for how making information available could enable watchdog groups or groups with particular interest to call attention to particular forms of data protection and use. Prohibition of certain forms of data collection and use is both more drastic and more problematic. The observation that over-regulation may lead to under-regulation is common. Although there are models of prohibition, in particular GINA and the ADA, these models are limited in scope and of limited efficacy because they can be avoided in so many ways. At present, moreover, our knowledge of the universe of data use and the impacts of these uses is woefully incomplete. Required transparency about data collection, possession, and use may be a needed initial step to increase public discussion about the benefits and burdens of data use, including its use in pandemic emergencies. Notice and choice is a move in the wrong direction for the evolution of data use in pandemics
The Elor Azaria Case and the Murderer or Hero Dilemma
Get PDFOn Thursday morning, March 24, 2016, Israel Defense Forces Sergeant Elor Azaria killed a severely wounded Palestinian terrorist, Abdel Fattah al-Sharif who was incapacitated when mortally shot. For this act, Azaria was convicted of manslaughter by a military court and sentenced to 18 months imprisonment subsequently reduced by the IDF Chief of Staff, General Gadi Eizencot.
The decision to prosecute Azaria, his subsequent conviction and incarceration, rocked Israeli society reflecting deep fissures on powerful issues, including, but not limited to, what is the normative moral standard expected of soldiers in a non-traditional conflict. The title of this chapter-murderer or hero-is intended to reflect the wide chasm that defined the debate in Israel, which extended well beyond the specific action in the streets of Hebron in the West Bank where Azaria killed al-Sharif.
That is not to diminish the importance of Azaria’s actions, but rather to highlight other aspects of the case that demand our attention. By broadening the scope of issues pertinent to the Azaria case, the intent is to provide a glimpse both into Israeli society and the IDF culture. Both are important when considering the broader consequences of a mis-begotten decision by one soldier, highlighting the impact of one military trial. The incitement by politicians, the cacophony from the public, the constant media attention became a story onto themselves, perhaps over-shadowing the actual trial. Covering the trial required addressing its implications and ramifications on Israeli society; there came to be two stories.
History and precedent are important, facts and circumstances notwithstanding. The question of whether-and where-to prosecute an IDF soldier was previously confronted by the public, the judiciary, and senior commanders. In short, the then Judge Advocate General, BG Amnon Strashnov decided not to prosecute (then) Col. Yehuda Meir for his actions in 1988 during the early stages of the Palestinian intifada but rather to bring Meir before a disciplinary hearing. In response to a petition filed by a human rights organization to the Supreme Court (sitting as the High Court of Justice), the Court ordered Meir’s prosecution before a Military Court which subsequently convicted him and lowered his rank to Private.
Public reaction literally, exploded in the streets where the Military Court is located. Demonstrations were so loud, sometimes so profane, the judicial process was hard pressed to hear itself. The trial became a critical part of the Israeli domestic dialogue; the decision to prosecute inflaming passions and emotions. Lost in the noise, perhaps deliberately, was that Azaria had killed al-Sharif long after the threat he posed had dissipated. We came to learn this because of the video of the event that went viral immediately.
The video depicts the following: al-Sharif lying prone on the ground, soldiers milling about in his presence in a manner clearly suggesting he is not perceived as posing a threat, Azaria exchanging words with a fellow soldier, taking a few steps toward al-Sharif, loading-cocking his rifle, taking aim and firing one shot directed at the head of the wounded terrorist. Careful viewing of the video does not suggest al-Sharif posed a danger to Azaria or the other soldiers, certainly not to Azaria when he approached al-Sharif from behind him while he was lying on his back
A Great Nation Keeping Its Word: The Role of Tribal Treaty Rights in Climate Change Litigation
No full textThis Note explores how the encounter between two cataclysms may provide an avenue to mitigate national and global catastrophe. The first of these upheavals is the arrival of settlers to North America. The second is the snowballing alteration to our global climate system from anthropogenic sources, known as climate change. Both of these disruptions have prompted massive social, economic, and ecological changes and exacted a large cost from Indian tribes. As a result of the first upheaval, European powers-and later the United States-entered into treaties with Indian tribes and an entire body of federal Indian law emerged from their interaction. These treaties often guaranteed the continued exercise of certain rights for Indian tribes-including the right to enjoy and use essential natural resources.
As this Note will explore, the resource rights reserved in these treaties and the principles that have emerged in the unique sphere of federal Indian law may provide a means to address the failure of state and federal governments to act on climate change. Such lawsuits could serve to address the specific effects of climate change on tribes whose treaty rights areincreasingly under threat. At the same time, these lawsuits would have the potential to spur more general governmental action to mitigate or adapt to the impacts of climate change and to pay for its harmful consequences, with profound impacts for the rest of the world
Using Current Legal Tools to Achieve Net Zero Greenhouse Gas Emissions from New and Existing Federal Oil and Gas Leases
Get PDFFossil fuel development on federal lands accounts for 24% of all U.S. carbon dioxide (CO2) emissions. These emissions can be reduced significantly by requiring federal oil and gas development activity to mitigate greenhouse gas (GHG) emissions. The Bureau of Land Management (BLM) has authority to define the terms and conditions of new oil and gas leases and to impose conditions of approval on existing leases at the drilling stage. Using this authority, the BLM could require net zero emissions on some existing and all new oil and gas leases without waiting for congressional action or regulatory changes. Applying existing legal tools would allow for continued energy production while a long-term climate strategy is developed, and still drive significant GHG emission reductions in the meantime. Additionally, green jobs would be created by incentivizing oil and gas operators to generate offset credits by plugging the more than 2 million orphaned or abandoned oil and gas wells that litter the landscape. Finally, the incentive to plug idle wells and retire leases early would reward operators for deciding to keep some fossil fuel resources in the ground
Red Flag Laws and Procedural Due Process: Analyzing Proposed Utah Legislation
Get PDFIn this Note, I analyze the validity of criticism against red flag laws based on procedural due process. I proceed as follows: In Part I, I discuss the background of red flag laws, the different versions passed among states, and the few constitutional challenges brought thus far. In Part II, I analyze the statutes’ validity under federal due process standards. I then specifically examine proposed Utah bills that failed to pass in previous legislative sessions. While providing recommendations, I argue that the legislation would likely pass constitutional muster. In Part III, I conclude that red flag laws are generally constitutional under a procedural due process theory but review the key characteristics that make some versions more or less constitutionally problematic
Indigenizing Grand Canyon
Get PDFThe magical place commonly called the “Grand Canyon” is Native space. Eleven tribes hold traditional connections to the canyon according to the National Park Service. This Article is about relationships between these tribes and the agency—past, present, and future. Grand Canyon National Park’s 2019 centennial afforded a valuable opportunity to reflect on these relationships and to envision what they might become. A reconception of the relationships has begun in recent decades that evidences a shift across the National Park System as a whole. This reconception should continue. Drawing on the tribal vision for Bears Ears National Monument, this Article advocates for Grand Canyon tribes and the Park Service to consider forming a Grand Canyon Commission for cooperative management of Grand Canyon National Park. Establishing this Commission would mark the vanguard of the relational reconception, and, in this precise sense, the Commission would lay a foundation for “indigenizing” Grand Canyon