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Disentangling Disinformation: What Makes Regulating Disinformation So Difficult?
Get PDFThis Essay articulates some of the critical ways in which disinformation differs from other categories of harmful content and explores some of the early efforts by platforms and governments to address the issue. It begins by analyzing the semantics around disinformation, explaining how specific terminology can allude to distinct concerns. It then explores the similarities and differences between disinformation and related categories of harmful content, like hate speech and terrorist incitement, before examining some of the corporate and regulatory initiatives that have emerged. It concludes with some observations and cautionary notes for corporate and governmental policy makers as they consider how best to address disinformation
Restoring the Public Interest in Western Water Law
Get PDFAmerican Western states and virtually every country and state with positive water resources law are in perfect agreement about the wisdom of treating their water resources as public property. Not surprisingly, this has led most Western states to articulate a goal of managing these resources in the public interest. But the meaning of the term “public interest,” especially in the context of water resources management, is far from clear. This Article strives to bring clarity to that issue. It begins by exploring three theoretical approaches that might be used for defining the public interest in water resources law before urging an approach that prioritizes communal values. It then calls on each state to articulate its own, objective definition of the public interest—one that can serve as a meaningful legal standard. Included in this call to action is an outline of a public, deliberative process that states might use to formulate such a definition. This is followed by an investigation of the current attitudes of Western states toward the public interest standard, which includes a survey of whether and how a public interest review is incorporated into each state’s administration of water rights. The survey reveals that most Western states routinely fail to meet their obligation to consider the public interest in water rights administration, despite unambiguous public interest mandates. I conclude by recommending changes to existing water resource management regimes that will help ensure accounting for public values
The Incidental Environmental Agency
Get PDFState oil and gas conservation agencies are the gatekeepers to oil and gas development: as the agencies charged with granting drilling permits, they decide if, when, where, and how oil and gas will be developed. As such, oil and gas conservation agencies sit on the front lines in the emerging, and increasingly irresolvable, struggle between fossil energy development and the environment. Current oil and gas conservation regulation is designed to promote development, maximize recovery of the resource, and protect the individual property rights of mineral owners. However, advocacy by environmental constituencies, including surface owners and local governments, has challenged the entrenched paradigm whereby production must be maximized at the expense of all other interests. These efforts are pushing courts to redefine oil and gas conservation according to twenty-first century environmental values. This Article examines the emergent environmental regulation function of oil and gas conservation agencies and identifies opportunities for these agencies to regulate according to their historic mandates in a manner that is inclusive of public values
The NCI Cancer Moonshot Public Access and Data Sharing (PADS) Policy – Initial Assessment and Implications
Get PDFSince 2013, federal research-funding agencies have been required to develop and implement broad data sharing policies. Yet agencies today continue to grapple with the mechanisms necessary to enable the sharing of a wide range of data types, from genomic and other -omics data to clinical and pharmacological data to survey and qualitative data. In 2016, the National Cancer Institute (NCI) launched the ambitious $1.8 billion Cancer Moonshot Program, which included a new Public Access and Data Sharing (PADS) Policy applicable to funding applications submitted on or after October 1, 2017. The PADS Policy encourages the immediate public release of published research results and data and requires all Cancer Moonshot grant applicants to submit a PADS plan describing how they will meet these goals. We reviewed the PADS plans submitted with approximately half of all funded Cancer Moonshot grant applications in fiscal year 2018, and found that a majority did not address one or more elements required by the PADS Policy. Many such plans made no reference to the PADS Policy at all, and several referenced obsolete or outdated National Institutes of Health (NIH) policies instead. We believe that these omissions arose from a combination of insufficient education and outreach by NCI concerning its PADS Policy, both to potential grant applicants and among NCI’s program staff and external grant reviewers. We recommend that other research funding agencies heed these findings as they develop and roll out new data sharing policies
Second Amici Curiae Brief of Law Professors et al., Pine Mountain Preserve, LLP v. Commissioner, filed in the U.S. Court of Appeals for the Eleventh Circuit
Get PDFSecond Amici Curiae Brief of Law Professors et al., filed in support of the government in the U.S. Court of Appeals for the Eleventh Circuit in Pine Mountain Preserve, LLP v. Commissioner, on appeal from U.S Tax Court No. 8956-13, 151 T.C. 247 (2018)
Jury Nullification: The Current State of the Law
Get PDFIn 2018, the Utah legislature considered a proposed bill that would have explicitly granted jurors the right to nullify in criminal cases. This research, done in preparation for committee testimony, contains the most up-to-date law on the topic. It includes a fifty-state survey on whether juries in various jurisdictions are (1) given the right to consider the possible sentencing penalty before rendering a verdict; (2) told they may disregard the law; or (3) instructed on the right to nullify. Additionally, the research includes fifty-state survey data on whether judges may lie to juries about the right to nullify, and how various jurisdictions treat attempts by outside organizations to notify potential jurors of their right to nullify
The Greater Yellowstone Ecosystem Revisited: Law. Science, and the Pursuit of Ecosystem Management in an Iconic Landscape
Get PDFThirty years ago, the Greater Yellowstone Ecosystem (GYE) concept and ecosystem management surfaced as key to preserving this legally fragmented region’s public lands and wildlife in the face of mounting development pressures. Yellowstone’s grizzly bears were in sharp decline and wolves were absent from the landscape, while bison and elk management issues festered. The GYE’s national forest lands were subject to extensive logging, energy leasing, and other commercial activities that cumulatively threatened the region’s ecological integrity. In the face of extreme jurisdictional complexity and a strong commitment to agency discretion, a high-profile federal “Vision” effort to improve and better coordinate resource management practices cratered under intense political pressures. Since then, however, much has changed in the GYE
The Road to Paris Runs Through Delaware: Climate Litigation and Directors’ Duties
Get PDFAs political and regulatory battles over climate change rage in the United States, and the Trump Administration unwinds regulation on climate change, the directors of some of the largest, fossil fuel corporations, often referred to as “carbon-majors”, are facing a barrage of climate litigation claims. This is the second time directors of these corporations have faced litigation. The first wave of litigation against carbon majors failed for a number of reasons, including judicial reluctance to engage with the complex issue of climate change. However, climate litigation is evolving. In this second wave of litigation judges have started to engage more directly with new scientific processes that link specific industry polluters to global climate impacts. Litigants are also becoming more creative, attempting to avoid federal preemption arguments encountered in the first wave by focusing on state-based common law and statutory claims. The number and scope of claims has also increased, with litigants moving beyond tort-based claims to employ diverse causes of action, including corporate law. This second wave of litigation will have two implications for corporate law fiduciary duties. First, the litigation highlights the bidirectional nature of climate impacts and risks. Corporations contribute emissions to the atmosphere which increase the severity of climate-related impacts. Those impacts, in turn, pose significant risks to corporations themselves. Second, the litigation elevates the risk profile of climate change from an ethical concern to a significant financial risk that directors are legally obligated to consider in order to comply with their fiduciary duties under corporate law. This broad but sudden shift in litigation trends changes the risk equation for directors on climate change
Translational Ecology and Environmental Law
Get PDFTranslational ecology is a comparatively new approach to the pursuit of ecology and other environmental sciences, the implications of which for environmental law have not previously been explored significantly. Emulating the concepts of translational medicine, proponents of transactional ecology seek to increase the relevance of their research to important environmental problems by improving how effectively they communicate research results to end users of that science, collaborating with those end users to identify research that is “actionable” rather than purely “curiosity-driven” or theoretical, recognizing that values as well as science have a legitimate role in environmental decisions, and engaging in ongoing dialogues about the relationship between science and other issues and values to build trust across disciplines. Several major federal environmental statutes provide examples of ways in which the practice of translational ecology could contribute to better implementation of environmental laws. More broadly, translational ecology has the potential to transform the relationship between science and law in setting and implementing environmental policy
Will China\u27s New Anti-Suit Injunctions Shift the Balance of Global FRAND Litigation?
Get PDFBy issuing anti-suit injunctions (ASIs) in Conversant v. Huawei and InterDigital v. Xiaomi in late 2020, Chinese courts have signaled a new willingness to vie for jurisdictional authority in global battles over standard-essential patents and FRAND licensing. While the Supreme People’s Court in Conversant largely followed the pattern of US and UK courts that have issued ASIs in similar cases, the ruling of the Wuhan court in InterDigital is far broader in two major respects. First, its geographic scope is not limited to the country in which InterDigital sought injunctive relief (India), but extends to all jurisdictions in the world. Second, it prohibits InterDigital from seeking a determination of a global FRAND rate for its 3G/4G patents anywhere in the world. In view of these two recent cases, China has clearly joined the international race to be the jurisdiction of choice for determining FRAND royalty rates in global disputes involving standard-essential patents