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Full-Text Articles in Law

Climate Change And Environmental Justice: Lessons From The California Lawsuits, Alice Kaswan Jan 2014

Climate Change And Environmental Justice: Lessons From The California Lawsuits, Alice Kaswan

San Diego Journal of Climate & Energy Law

This essay does not debate the political wisdom of suing; instead, it takes the suits as a given and attempts to enhance understanding of the environmental justice community’s climate justice agenda. It describes the role of environmental justice in the development of California’s climate law, AB 32, describes the lawsuits, and suggests some of the larger lessons about climate policy, cap-and-trade, and environmental justice that these lawsuits reveal. Ultimately, the environmental justice lawsuits highlight two primary themes: (1) the importance of a holistic approach to climate change policy that recognizes and integrates its multiple dimensions, including co-pollutant implications; and (2) …


Carbonite Legal Conflict In California, Steven Ferrey Jan 2014

Carbonite Legal Conflict In California, Steven Ferrey

San Diego Journal of Climate & Energy Law

This Article thaws several legal layers of California carbonite, tranche- by-tranche, and examines the legal fabric. First, in Section II we examine federal Constitutional challenges to California’s A.B. 32 and sustainable energy statutes under the Supremacy Clause. Section III analyzes litigation against California carbon control pursuant to the Commerce Clause of the Constitution. Section IV analyzes challenges to the California regulation pursuant to state law violations, distinguishing those which proceed from the California Environmental Quality Act (CEQA) and those which utilize other state administrative laws to challenge California’s carbon choices and implementation. Section V examines the trilogy of litigation set …


V.5, 2014 Masthead Jan 2014

V.5, 2014 Masthead

San Diego Journal of Climate & Energy Law

No abstract provided.


She Sells Seawalls Down By The Seashore, Tricia Lee Jan 2014

She Sells Seawalls Down By The Seashore, Tricia Lee

San Diego Journal of Climate & Energy Law

This Comment argues that a bill similar to Assembly Bill 2943 should be proposed today because there has been a drastic shift towards a general acceptance of global warming since 2002. In addition, new environmental studies support the idea of curbing seawall construction along the California coast.

Section I will provide data regarding rising sea levels and the current state of seawall construction along the California coast. It will then explain why seawall construction is not a viable adaptation strategy and delve into its negative social, environmental, and economic impacts.

Section II will examine California’s current policies for protecting coastal …


The Lacey Act Amendments Of 2008: The World's First Ban On Illegal Logging Combats Deforestation But Gets Stumped By Foreign Laws, Yijin J. Lee Jan 2014

The Lacey Act Amendments Of 2008: The World's First Ban On Illegal Logging Combats Deforestation But Gets Stumped By Foreign Laws, Yijin J. Lee

San Diego Journal of Climate & Energy Law

By exploring the history of the United States’ legislative efforts in dealing with the problems deforestation has caused and the origins of the Lacey Act, it is possible to understand the inspiration behind the 2008 amendments to the act. Further, exploring the minute details of the Lacey Act amendments and understanding how the amendments have changed the power and meaning behind the original Lacey Act highlights the amendments’ strengths and weaknesses. Also, in understanding how the new amendments are being implemented and enforced, it is possible to see which federal agencies are putting force behind the words of the Lacey …


Electric Power Resource "Shuffling" And Subnational Carbon Regulation: Looking Upstream For A Solution, Jim Rossi, Andrew J.D. Smith Jan 2014

Electric Power Resource "Shuffling" And Subnational Carbon Regulation: Looking Upstream For A Solution, Jim Rossi, Andrew J.D. Smith

San Diego Journal of Climate & Energy Law

The potential for shuffling in wholesale power markets thwarts California’s ability to meet its AB 32 GHG emission reduction goals, and may even lead to emissions increases. Yet, as California’s efforts illustrate, resource shuffling is extremely difficult to regulate at the state level. Short of California aggressively reducing its emissions limits to reflect the leakage problem of shuffling, the state is incapable of solving the problem on its own.
As states follow California’s lead in crafting their own approaches to regulating GHG emissions, national solutions will be necessary to address the problem of resource shuffling, given interstate markets in wholesale …


Energy Policy, Extraterritoriality, The Dormant Commerce Clause, Alexandra B. Klass, Elizabeth Henley Jan 2014

Energy Policy, Extraterritoriality, The Dormant Commerce Clause, Alexandra B. Klass, Elizabeth Henley

San Diego Journal of Climate & Energy Law

This Article will focus specifically on potential challenges to state energy policy based on the “extraterritoriality doctrine” of the dormant Commerce Clause. In doing so, it considers two recent lawsuits involving dormant Commerce Clause challenges to state energy policy. The first is the lawsuit against the State of California over its Low Carbon Fuels Standard (LCFS) program on grounds that it discriminates against Midwest ethanol producers in favor of California ethanol producers and regulates extraterritorially in violation of the dormant Commerce Clause. The second is the lawsuit by the State of North Dakota, the North Dakota lignite coal industry, and …


Anglo-American Dissent From The European Law Of War: A History With Contemporary Echoes, Jeremy Rabkin Jan 2014

Anglo-American Dissent From The European Law Of War: A History With Contemporary Echoes, Jeremy Rabkin

San Diego International Law Journal

These episodes in the history of international humanitarian law deserve to be recalled. They may challenge contemporary dogmas. They remind us that, just below the surface, claims for “humanitarian” principle remain disputable and uncertain, even in today’s world. What “everyone agrees” may not be right. It may not even be what everyone—even everyone of relevant experience and moral seriousness—actually agrees upon.

The exposition here proceeds in six parts. Part II describes the contemporary setting of the legal issue, in the “Basic Rule” of Additional Protocol I, highlighting that this rule has no counterpart in earlier conventions on the law of …


Partners Or Rivals In Reconciliation? The Ictr And Rwanda’S Gacaca Courts, Leo C. Nwoye Jan 2014

Partners Or Rivals In Reconciliation? The Ictr And Rwanda’S Gacaca Courts, Leo C. Nwoye

San Diego International Law Journal

A major question for post-conflict governments to consider is how best to shape reconciliation efforts. This Article examines two transitional justice mechanisms that were utilized in Rwanda’s post genocide era and assesses their contributions to reconciliation. The two principal approaches which emerged in the Rwandan context were the establishment of International Criminal Tribunal for Rwanda (ICTR), via the international political community whilst grassroots efforts within Rwanda were channeled through the gacaca court system. While each of these systems, though unintended and incoherent hybrid justice strategies, possessed strengths and weaknesses, this legal pluralist structure nevertheless yielded positive reconciliation results.

The Article …


Partnering With Despots And Failed Regimes: Rogue Banking As A Primary Violation Of International Law, Joel Slawotsky Jan 2014

Partnering With Despots And Failed Regimes: Rogue Banking As A Primary Violation Of International Law, Joel Slawotsky

San Diego International Law Journal

Today, criminals can transfer enormous sums from a bank in nation A to an account in nation B with a mouse click. Allowing rogue banking to constitute an international law violation will enable direct actions against financial institutions for international law violations and raise the profile of those institutions that engage in the practice.

This Article does not propose that isolated incidents of providing financial services should be considered a violation of international law, but rather that rogue banking should be defined in the context of serial partnering with international law violators. Part II outlines the pervasive role global financial …


The United States Versus Japan As A Lesson Commending International Mediation To Secure Hague Abduction Convention Compliance, Chandra Zdenek Jan 2014

The United States Versus Japan As A Lesson Commending International Mediation To Secure Hague Abduction Convention Compliance, Chandra Zdenek

San Diego International Law Journal

Under the current domestic resolution of Convention disputes, courts must choose winners and losers. With the option of international mediation, courts would be more inclined to return children to their States of habitual residence promptly because those courts would be assured of their citizens’ safety abroad. Such safety could be satisfied through a wide range of mediated agreements. Successful implementation of international mediation in Hague Abduction Convention proceedings would thus significantly improve compliance, replacing the current “black or white” judicial approach with a more flexible, opportunistic system in which any combination of colors is possible.


V. 16-1, 2014 Masthead Jan 2014

V. 16-1, 2014 Masthead

San Diego International Law Journal

No abstract provided.


A Matter Of National Security: Whistleblowing In The Military As A Mechanism For International Law Enforcement, Roslyn Fuller Jan 2014

A Matter Of National Security: Whistleblowing In The Military As A Mechanism For International Law Enforcement, Roslyn Fuller

San Diego International Law Journal

[T]his article examines the impact that external whistleblowing can have on a state’s compliance with international law. Part III looks at some of the complications that disclosing international law violations raises for the broader legal system, in particular, the expertise that a whistleblower of this type should be expected to have in the area of international law, and judicial reactions to defences related to the exposure of international law violations. Part IV identifies some trends based on this analysis and what they might mean for external whistleblowing on international law violations in the future.


Destroying The Legacy Of The Icty: Analysis Of The Acquittals Of Jovica Stanišic And Franko Simatović, Katherine Pruitt Jan 2014

Destroying The Legacy Of The Icty: Analysis Of The Acquittals Of Jovica Stanišic And Franko Simatović, Katherine Pruitt

San Diego International Law Journal

In a 2005 press release by the International Criminal Tribunal for the Former Yugoslavia (“ICTY”), Chief Prosecutor Carla Del Ponte stated “[t]he debate on war crimes in the former Yugoslavia is not subsiding. It is present in the daily life and media, and always politicised . . . I am much more concerned about the victims of war crimes and their families, and I appeal to you to make the victim aspect of any legal process a priority.” Despite this stated dedication to war crimes victims and their families, the ICTY’s Trial Chamber (“Chamber”) recently acquitted two state security officials …


‘My Name Is Khan’ And I Am Not A Terrorist: Intersections Of Counter Terrorism Measures And The International Framework For Refugee Protection, Neha Bhat Jan 2014

‘My Name Is Khan’ And I Am Not A Terrorist: Intersections Of Counter Terrorism Measures And The International Framework For Refugee Protection, Neha Bhat

San Diego International Law Journal

This paper is structured as follows: Part II traces the development of international instruments on the definition of terrorism, terrorist activities and “incitement to terrorism.” Part III first explores the normative framework of exclusion under the 1951 Convention and how the RSD procedure has undergone a notional shift, with exclusion considerations becoming more central. The section will then look at the provisions of Article 1F of the 1951 Convention, which contain the exclusion clauses and also discuss incorporation of terrorism exception to the asylum law framework in the United States. Part IV concludes with the proposition that the dangers of …


Samsāra To Nirvāna: What Would It Mean To Actually Free Tibet?, Leah Marie Shellberg Jan 2014

Samsāra To Nirvāna: What Would It Mean To Actually Free Tibet?, Leah Marie Shellberg

San Diego International Law Journal

For Mahayana Buddhists, samsara literally means “wandering-on,” but in theory, it refers to the cyclical nature of birth and re-birth characterized by suffering that a Buddhist must break out of in order to achieve nirvana, a state free of suffering. Since the occupation and incorporation of Tibet into the People’s Republic of China (“China”) in the late 1940s and early 1950s, the Tibetan people have experienced a far more intense form of metaphorical samsara at the hands of the Chinese administration. The term “genocide,” coined by Raphael Lemkin in the wake of the Holocaust, combines the ancient Greek word “genos” …


Increased Franco-British Military Cooperation: The Impetus, Its Results, And The Impact On International Humanitarian Intervention, Eva Gramyk Jan 2014

Increased Franco-British Military Cooperation: The Impetus, Its Results, And The Impact On International Humanitarian Intervention, Eva Gramyk

San Diego International Law Journal

[T]his Article addresses the current legal framework of humanitarian intervention. Section III examines previous attempts at international military cooperation by the United Nations, NATO, EU, and bilateral arrangements, Section IV considers the scope and implementation of the Treaty between France and the UK. Finally, Section V analyzes the interplay of international law and the bilateral military treaty in recent international humanitarian interventions.


V.15-2, 2014 Masthead Jan 2014

V.15-2, 2014 Masthead

San Diego International Law Journal

No abstract provided.


Admissible Or Inadmissible: The Role Of Formally Codified Rules Of Evidence As A Safeguard In Mexico’S Developing Adversarial System, Connie Dang Jan 2014

Admissible Or Inadmissible: The Role Of Formally Codified Rules Of Evidence As A Safeguard In Mexico’S Developing Adversarial System, Connie Dang

San Diego International Law Journal

[T]his Comment begins with a brief history of Mexico’s political framework, including an introduction to its civil law tradition, the positivist values present in its legal framework, and the previous criminal procedure reforms that took place before the current 2008 constitutional reforms. It is important to understand the challenges that the previous—and unsuccessful—constitutional reforms faced in order to appreciate the drastic scope of the current changes to Mexican criminal procedure. Part II will address the role of the United States in its relationship with Mexico relationship during the implementation of the 2008 constitutional reforms. As Mexico’s direct neighbor, the United …