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The Flip Side of Michigan v. EPA: Are Cumulative Impacts Centrally Relevant?
Get PDFThis Article explores the flipside of Michigan - v. EPA - where the Court’s logic can just as well support agencies in their public health and environmental protection efforts. In particular, taking Michigan as a blueprint, this Article argues that cumulative impacts are centrally relevant to environmental regulation and—like cost—deserve a systemic and meaningful role in agency decisionmaking, including in the threshold decision of when to regulate. In doing so, this Article serves as a counterbalance to the weight of cost benefit rhetoric that would reduce environmental law off to a line item in a strained budget
Up for Grabs: The State of Fossils Protection in (Recently) Unprotected National Monuments
Get PDFOn December 4, 2017, President Trump removed 2 million acres of land from the Bears Ears and Grand Staircase-Escalante national monuments. President Trump justified the reductions in part by claiming that many of the objects contained in the original monuments were already protected by other federal laws, and that the protections previously afforded to sixty-three percent of the land in the two original monuments were “unnecessary for the care and management of the objects to be protected within the monument[s].” This article explains why, contrary to the President’s assertions, plant and invertebrate fossils on the more than two million acres of land that were excluded from the monuments now receive less protection than when they were included in the monuments
Considerations Regarding a Canadian Patent Collective
Get PDFIn its 2018 budget, the Government of Canada pledged CDN30 million for the formation of a Canadian “Patent Collective.” This paper explores the possible structure and goals of such a collective, as well as potential risks and challenges of each. It concludes that appreciable technology development by Canadian firms is not likely to be achieved through the proposed patent collective, but that such a collective could assist Canadian firms by facilitating their participation in existing international defensive patent networks. The paper recommends that the proposed Canadian patent collective avoid the acquisition and aggregation of patents, and instead focus its limited resources on three supportive functions for Canadian industry: assisting Canadian firms, through subsidies or other resource commitments, to participate in existing international defensive patent networks; encouraging Canadian universities and research institutions to focus on commercially relevant “translational” research; and assessing the potential benefits of facilitating patent sharing or pooling arrangements in select Canadian industries, and offering administrative and infrastructural support for such efforts
Law Professor Amicus Brief in Massachusetts Lobstermen\u27s Association v. Ross Regarding the Legality of the Northeast Canyons and Seamounts Marine National Monument
Get PDFThis amicus brief discusses how, under domestic law, the President can establish national monuments, pursuant to the Antiquities Act, in the ocean. It focuses on the seabed\u27s status as land owned or controlled by the federal government under U.S. law, as the Antiquities Act requires, and on the President\u27s authority to regulate fishing within marine national monuments
Law \u27Reviews\u27? The Changing Roles of Law Schools and the Publications They Sponsor
Get PDFThe current structure of law reviews is deeply problematic. It does not serve students, law faculty, or legal scholarship very well. There is much to learn from the early development and changes in law reviews over the years to inform law schools as they reevaluate the role of their journals in the education they provide their students and in the lives of their faculty
Drought and Public Necessity: Can a Common-Law “Stick” Increase Flexibility in Western Water Law?
Get PDFDrought is a recurring—and likely increasing—challenge to water rights administration in western states under the prior appropriation doctrine, where “first in time” senior rights are often allocated to non-survival uses such as commercial agriculture rather than to drinking water supply for cities. While states and localities facing severe drought have used a variety of voluntary programs to re-allocate water, these programs by their very nature cannot guarantee that water will in fact be redistributed to the uses that best promote public health and community survival.Using the example of the Brazos River drought of 2010 to 2013, this Article explores the potential role of the common-law doctrine of public necessity in reallocating water during extreme drought. Building on my earlier work examining the potential use of public necessity in climate change adaptation for water law and coasts, this Article nevertheless focuses more narrowly on the specific issue of water crisis—the moment during an extreme drought when cities and power plants face a real inability to supply the general public with drinking water and electricity. At that moment, the doctrine of public necessity should allow state water agencies in western states to re-allocate water away from senior water rights holders whose water rights are for non-survival uses
What Caused the 2016 Chicago Homicide Spike? An Empirical Examination of the \u27ACLU Effect\u27 and the Role of Stop and Frisks in Preventing Gun Violence
Get PDFHomicides increased dramatically in Chicago in 2016. In 2015, 480 Chicago residents were killed. The next year, 754 were killed–274 more homicide victims, tragically producing an extraordinary 58% increase in a single year. This article attempts to unravel what happened.This article provides empirical evidence that the reduction in stop and frisks by the Chicago Police Department beginning around December 2015 was responsible for the homicide spike that started immediately thereafter. The sharp decline in the number of stop and frisks is a strong candidate for the causal factor, particularly since the timing of the homicide spike so perfectly coincides with the spike. Regression analysis of the homicide spike and related shooting crimes identifies the stop and frisk variable as the likely cause. The results are highly statistically significant and robust over a large number of alternative specifications. And a qualitative review for possible “omitted variables” in the regression equations fails to identify any other plausible candidates that fit the data as well as the decline in stop and frisks.Our regression equations permit quantification of the costs of the decline in stop and frisks. Because of fewer stop and frisks in 2016, it appears that (conservatively calculating) approximately 239 additional victims were killed and 1129 additional shootings occurred in that year alone. And these tremendous costs are not evenly distributed, but rather are concentrated among Chicago’s African-American and Hispanic communities.The most likely explanation for the fall in stop and frisks that appears to have triggered the homicide spike is a consent decree entered into by the American Civil Liberties Union (ACLU) with the Chicago Police Department (CPD). Accordingly, modifications to that consent decree may be appropriate.More broadly, these findings shed important light on the on-going national debate about stop and frisk policies. The fact that America’s “Second City” suffered so badly from a decline in stop and frisks suggests that the arguably contrary experience in New York City may be an anomaly. The costs of crime — and particularly gun crimes — are too significant to avoid considering every possible measure for reducing the toll. The evidence gathered here suggests that stop and frisk policies may be truly lifesaving measures that have to be considered as part of any effective law enforcement response to gun violence
Corporate Social Responsibility and Social Media Corporations: Incorporating Human Rights Through Rankings, Self-Regulation and Shareholder Resolutions
Get PDFThis article examines the emergence and evolution of selected ranking and reporting frameworks in the expanding realm of business and human rights advocacy. It explores how indicators in the form of rankings and reports evaluating the conduct of transnational corporate actors can serve as regulatory tools with potential to bridge a global governance gap that often places human rights at risk. This article examines the relationship of transnational corporations in the Internet communications technology sector (ICT sector) to human rights and the risks presented to the right to freedom of expression and the right to privacy when ICT sector companies comply with government demands to disclose user data or to conceal information users seek. Specifically, it explores the controversial role of transnational ICT corporations in state censorship and surveillance practices. The article explains how conflicts over corporate complicity in alleged abuses served to catalyze change and lead to the creation of the Global Network Initiative, a private multi-stakeholder project, and the Ranking Digital Rights Initiative, an industry independent market-based information effort. Both aim to promote more responsible business practices in the social media industry sector. In conclusion, the article argues that regulating corporate reporting of information relevant to assessing the potential for adverse human rights impacts is necessary
The Rhetorical Allure of Post-Racial Process Discourse and the Democratic Myth
Get PDFWe are witnessing the power of distorted and neutral rhetoric that rings with deceptive clarity. This post-racial process discourse is advanced on many levels: in political discourse, by a distrustful citizenry energized by hateful rhetoric that appeals to their concerns of being “left behind” on the basis of “preferences” for minorities that diminish America’s “greatness,” and a Court that seeks to constitutionalize a mythic democracy that promises participation while implicitly endorsing structural exclusion.
Voter initiatives should not determine the substantive core of the Fourteenth Amendment. While democratic participation is essential to our Republic, decisions like Schuette perpetuate a democratic myth of accessibility while the political process has been restructured to ensure that race-conscious remedies are invalid. The danger is that we will accept this inequality as a natural product of our democracy. The Court once acknowledged this danger in its political process decisions; and, while these decisions have not been explicitly overruled, Schuette marks the constitutionalization of post-racial process discourse and the democratic myth. Now, more than ever, we must reject the rhetorical allure of this contrived neutrality
Bucklew v. Precythe : Brief of Arizona Voice for Crime Victims, Inc., and Melissa Sanders as Amici Curiae in Support of Respondents
Get PDFThis amicus brief in Bucklew v. Precythe discusses how undue delay in capital cases can harm crime victims’ families. After reviewing the facts of the cases, the brief draws on the available scholarship to show how extended delays in criminal cases – and particularly death penalty cases – can compound the harms and exacerbate the trauma that victims’ families suffer. The brief concludes that the important interests of victims should be vindicated by affirming the judgment reached below