Law Commons^™

Climate Change And Human Trafficking After The Paris Agreement, Michael B. Gerrard

University of Miami Law Review

At least 21 million people globally are victims of human trafficking, typically involving either sexual exploitation or forced labor. This form of modern-day slavery tends to increase after natural disasters or conflicts where large numbers of people are displaced from their homes and become highly vulnerable. In the decades to come, climate change will very likely lead to a large increase in the number of people who are displaced and thus vulnerable to trafficking. The Paris Climate Agreement of 2015 established objectives to limit global temperature increases, but the voluntary pledges made by nearly every country fall far short of ...

Energy, Governance, And Market Mechanisms, Alice Kaswan

University of Miami Law Review

As climate modelers’ projections materialize through intense storms, catastrophic flooding, unprecedented heat waves, and more, the need for substantial decarbonization within the next few decades has become increasingly clear. Transitioning to clean energy will bring benefits and drawbacks and will create winners and losers. Who will decide how we transition? Our choice of policy tools will have significant implications for who controls the transition and how it unfolds.

Many economists promote the role of market-based mechanisms like carbon taxes or cap-and-trade, mechanisms that rely largely on private actors to make crucial decisions. Under this view, government measures would fill in ...

Who Gets In? The Price Of Acceptance In Canada, Chavon A. Niles

Journal of Critical Thought and Praxis

The Canadian nation state is often applauded for its open and welcoming attitude towards Others. The Prime Minister of Canada has openly stated that “Diversity is our strength.” However, who gets in suggests who and what Canada values. Through the stories of Jazmine, Nico and Harold shared by Global News, I will illustrate how Canada continues to discriminate against people with disabilities. Using critical disability studies and critical race theory, I explore the assumptions the “excessive demand,” point system, and medical exam make in labelling and disregarding disabled applicants who are read as undesirable and unworthy. Finally, I reflect on ...

Remedial Discretion In Constitutional Adjudication: A Codicil, John M. Greabe

John M Greabe

This symposium paper elaborates on two questions raised by the author’s prior work, Remedial Discretion in Constitutional Adjudication. That paper disagree with calls for a revival of non-retroactive judicial rulings to facilitate more constitutional innovation and argued that the Supreme Court’s practice of developing doctrines that withhold remedies for constitutional violations—e.g., qualified immunity, exceptions to the exclusionary rule, and harmless-error rules— were both sufficient to facilitate constitutional innovation and preferable to reviving non-retroactivity. Of necessity, the paper also developed a theory of when courts may withhold remedies for constitutional violations and when they may not: courts ...

United States V. Hubbell: Encryption And The Discovery Of Documents, Gregory S. Sergienko

Greg Sergienko

Five years ago, in a contribution to these pages, I suggested that the Supreme Court's oldest precedents and the original intent of the framers of the Constitution precluded the use of evidence produced under a grant of immunity against the producer, even though the material produced included documents that the producer had not been compelled to write. This implied that information concealed with a cryptographic key could not be used in a criminal prosecution against someone from whom the key had been obtained under a grant of immunity. The issue, however, was doubtful given the tendency of the Court ...

Using Instructional Design To Improve Student Learning, Gregory S. Sergienko

Greg Sergienko

Categorizations of knowledge and skills have different purposes. Robert Gagne's classification, which we use here, organizes types of learning according to the mental processes involved in performing them. The best practices for teaching knowledge or skills in a particular category are similar, whether the knowledge being taught is torts, contracts, or electrical engineering. For law teachers, the practical advantage of this classification is that it allows us to identify successful learning techniques from other subjects and adapt them to law teaching, rather than starting from scratch and developing and testing our own techniques. A second advantage of classifying types ...

Property Law And Climate Change, Gregory S. Sergienko

Greg Sergienko

This article discusses the issue of rules for acquiring property rights in natural resources, land use controls (such as restrictive covenants) and how they can impede the progress of environmentally friendly power sources when such sources are considered aesthetically offensive, and how property law should deal with uses of land that are inefficient and contribute to global warming. [excerpt]

New Modes Of Assessment, Gregory S. Sergienko

Greg Sergienko

The traditional and dominant mode of formal assessment in law schools is an essay examination administered at the end of the semester. Unfortunately, the essay exam is prone to inaccuracies, some of which can be balanced by other forms of assessment. In addition, essay exams are extremely burdensome to grade.

The purpose of this Article is to call attention to a variety of alternatives to this traditional format that are more accurate and less burdensome than traditional essay exams. Increasing accuracy makes it possible to determine whether the instruction has been effective, allowing the instructor to address areas of weakness ...

'A Body Of Sound Practical Common Sense': Law Reform Through Lay Judges, Public Choice Theory, And The Transformation Of American Law, Gregory S. Sergienko

Greg Sergienko

... [T]hree of the earliest and most influential proponents of the argument that public choice theory implies that courts produce better rules than legislators are Judge Frank Easterbrook, Judge Richard Posner, and Justice Antonin Scalia. These proponents of social choice theory conclude from this that judicial decisions are more to be trusted than legislative decisions and therefore favor a variety of devices to expand judicial power. These include interpreting statutes restrictively, which leaves the decision up to the pre-existing judge-made law; interpreting statutes in a common-law fashion, which allows judges their traditional rule-making powers; and ignoring legislative intent, which leaves ...

Assumption Of Risk As A Defense To Negligence, Gregory S. Sergienko

Greg Sergienko

This article will revisit the history of assumption of risk in California and elsewhere and suggest that the traditional doctrine should be modified and revived, despite the contrary approach of the Restatement (Third) of Torts. In the first part of the article, I will describe the ambiguities in the statements of assumption of risk that existed before the adoption of comparative negligence. I will show that Knight v. Jewett, which rejected assumption of risk, misinterpreted Li v. Yellow Cab Co., in which the California Supreme Court adopted a comparative negligence rule. Moreover, even if the Knight case was defensible on ...

Social Contract Neutrality And The Religion Clauses Of The Federal Constitution, Gregory S. Sergienko

Greg Sergienko

'Neutrality' has become the slogan that the Supreme Court uses for judging all claims of freedom of religion whether under the Establishment Clause or the Free Exercise Clause. However, the word 'neutrality' conceals the Court's inconsistent use of the concept. Thus, in Rosenberger v. Rectors of the University of Virginia, the recent debate about funding for religious publications, both the majority and the dissent asserted that only their approach was truly neutral. This inconsistency in the meaning of neutrality in the religion clauses is merely part of a general inconsistency in the Court's treatment of the religion clauses ...

Self Incrimination And Cryptographic Keys, Gregory S. Sergienko

Greg Sergienko

Modern cryptography can make it virtually impossible to decipher documents without the cryptographic key thus making the availability of the contents of those documents depend on the availability of the key. This article examines the Fourth and Fifth Amendments' protection against the compulsory production of the key and the scope of the Fifth Amendment immunity against compelled production. After analyzing these questions using prevailing Fourth and Fifth Amendment jurisprudence, I shall describe the advantages of a privacy-based approach in practical and constitutional terms. [excerpt]

Full Faith And Credit, Choice Of Laws, And Extraterritorial Regulation Of Corporate Transactions, Gregory S. Sergienko

Greg Sergienko

In a federal system in which each state may enact laws providing for the chartering and governance of corporations and in which corporations can and do conduct business in more than one state, several states may claim an interest in regulating the conduct of a given corporation. The enactment of state laws that are intended to restrict hostile corporate takeovers and that purport to extend to foreign corporations is one example of this phenomenon. "Typically, any of a number of jurisdictional links might trigger the application of such an anti-takeover statute: the target's being incorporated in the state, its ...

A King Who Devours His People: Jiang Zemin And The Falun Gong Crackddown: A Bibliography, Michael J. Greenlee

Michael Greenlee

In July 1999, the government of the People’s Republic of China (PRC) and the Chinese Communist Party (CCP) began an official crackdown against the qigong cultivation group known as Falun Gong. Intended to quickly contain and eliminate what the PRC considers an evil or heretical cult (xiejiao), the suppression has instead created the longest sustained and, since the Tiananmen Square protests of June 1989, most widely known human rights protest conducted in the PRC. The Falun Gong has received worldwide recognition and support while the crackdown continues to provoke harsh criticism against the PRC as new allegations of human ...

National Security Letters And Intelligence Oversight, Michael J. Greenlee

Michael Greenlee

The history of NSL [national security letter] powers can serve as an illuminating example of the post­-Church Committee development of intelligence investigations. Many of the Church Committee findings and recommendations concerning the need for expanded oversight to prevent the executive branch from violating or ignoring the law, excessively using intrusive investigation techniques, and conducting overbroad investigations with inadequate controls on the retention and dissemi­nation of the information gathered are all reflected in the development of NSL powers and authorities from their creation in 1978 through passage of the PlRA [USA PATRIOT Improvement and Reauthorization Act] in 2006. At ...

Global Governance Of Climate Change: The Paris Agreement As A New Component Of The Un Climate Regime, David Wirth

David A. Wirth

The Paris Agreement, which was adopted in December 2015 and entered into force less than a year later, is the newest instrument to be adopted in the United Nations-sponsored global climate regime. The Paris Agreement takes its place under the 1992 Framework Convention on Climate Change and next to the 1997 Kyoto Protocol and 2012 Doha Amendment. After describing the historical evolution of the UN climate regime employing the tools of international law, this Article explores the structural, institutional, and legal relationships between the new Paris Agreement and the prior development and content of UN-sponsored efforts on climate protection under ...

A Continent Divided: Nationalism And The European Union, Vlad Perju

Vlad Perju

No abstract provided.

How Irrational Actors In The Ceo Suite Affect Corporate Governance, Renee M. Jones

Renee Jones

No abstract provided.

Globalization, Inequality & International Economic Law, Frank J. Garcia

Frank J. Garcia

International law in general, and international economic law in particular, to the extent that either has focused on the issue of inequality, has done so in terms of inequality between states. Largely overlooked has been the topic of inequality within states and how international law has influenced that reality. From the perspective of international economic law, the inequality issue is closely entwined with the topics of colonialism and post-colonialism, the proper meaning of development, and globalization. While international economic law has undoubtedly contributed to the rise of inequality, it is now vital that the subject of international economic law be ...

The Grand Jury: A Shield Of A Different Sort, R. Michael Cassidy, Julian A. Cook Iii

R. Michael Cassidy

According to the Washington Post, 991 people were shot to death by police officers in the United States during calendar year 2015, and 957 people were fatally shot in 2016. A disproportionate percentage of the citizens killed in these police-civilian encounters were black. Events in Ferguson, Missouri; Chicago, Illinois; Charlotte, North Carolina; Baton Rouge, Louisiana; and Staten Island, New York - to name but a few affected cities - have now exposed deep distrust between communities of color and law enforcement. Greater transparency is necessary to begin to heal this culture of distrust and to inform the debate going forward about police ...