Digital Commons Network^™

Filling The Protection Gaps For Climate Change And Disaster-Induced Migrants, Kimberly A. Erickson

Human Rights Brief

No abstract provided.

Signature Of Multilateral Treaties: Still Meaningful In The Era Of Transnational Law?, Bantekas, Ilias

Santa Clara Journal of International Law

The function of signing multilateral treaties has always been perceived as a sine qua non element of inter-state agreements. Its evolution has witnessed several useful variations, such as definitive signatures, the ‘all states formula’, as well as the enhanced role of treaty depositaries with respect to the effect of signatures. The article argues that despite signature requirements in all multilateral treaties there is a clear trend towards alternative forms of agreement, whether between states or between states and non-state actors. The rise in the power of non-state actors has given rise to simplified forms of agreement where formalities, including treaty-type …

Arctic Sustainability Law: Almost Sufficient, Joseph F.C. Dimento, Melissa L. Kelly, Kaitlin O'Donnell

North Carolina Journal of International Law

No abstract provided.

Teaching International Law In Pursuit Of Justice, Beth Van Schaack

Case Western Reserve Journal of International Law

No abstract provided.

China's Bri On The Polar Silk Road: Evolving Labor Agenda In The Arctic, Ronald C. Brown

Canada-United States Law Journal

No abstract provided.

What Remains Of The Alien Tort Statute After Nestlé Usa, Inc. V. Doe?, Clara Petch

Northwestern Journal of International Law & Business

Abstract

The Alien Tort Statute (ATS), which provides U.S. courts with jurisdiction over violations of the law of nations, has been a crucial mechanism for obtaining redress for international human rights abuses. However, over the past four decades, the Supreme Court has continually chipped away at the jurisdictional reach of the statute. Most recently, in June 2021, the Supreme Court addressed the scope of the ATS in two consolidated cases: Nestlé USA, Inc. v. Doe and Cargill, Inc. v. Doe. Plaintiffs were former trafficked and enslaved children forced to work on cocoa farms in Ivory Coast under grueling conditions. Plaintiffs …

The Disaster Chain: Counter-Mapping Global Value Chains, Peer Zumbansen

Northwestern Journal of International Law & Business

Abstract: Prevailing accounts by consultancies and logistics scholars present global value chains [GVCs] as an expression of contemporary international economic integration and connectivity. As such, they are considered crucial to the pursuit of economic growth and prosperity. At the same time, GVCs are deemed susceptible to “disruptions” through natural catastrophes, restrictive trade policies or pandemics. Left out of the standard narratives, even in light of the experience of the global Coronavirus pandemic, is the actual, as such disruptive impact of global value chain capitalism on human and natural lives. Dominant depictions of global value chain governance treat labor, environment and …

The New Slot Machine: An International Perspective On Why The United States Should Learn To Stop Loving The Loot Box, Ajay Harish

Emory International Law Review

Games of chance are woven into the fabric of human culture. Rapid shifts in technology have resulted in the creation of the loot box, a new video game monetization scheme formed from the dregs of slot machines and trading cards. While extremely lucrative, the existence of loot boxes allows game companies to expose children to wager-like behavior, potentially creating a new generation of problem gamblers. The United States is both financially and culturally tied to video games as an industry and has been slow in its regulation of loot boxes. Given the problematic nature of loot boxes, existing regulations in …

Climate Change's Profound Disruption Of The Arctic Proceedings Of The 45th Canada-United States Law Institute Annual Conference - Climate Change And The Arctic: Profound Disruption, Uncertain Impact, Mike Sfagra, Hajo Eicken, Marcel Babin

Canada-United States Law Journal

No abstract provided.

Managing Cybersecurity And Technology Appropriation Threats To International Investment: Trust Or Verify, Joel P. Trachtman

The International Lawyer

No abstract provided.

Parks As Persons: Legal Innovation Or Colonial Appropriation?, Alexandra Flynn

All Faculty Publications

This Article, considers personhood, a mechanism that has been used in other jurisdictions — including cities — to legally reconfigure land ownership.Te Urewara, once a national park in New Zealand, the Atrato River in Colombia, and the Magpie and Fraser Rivers in Canada became legal “persons” after decades of advocacy by Indigenous Peoples. These natural resources now have rights, a new material and representational making of property that centres a governance role for Indigenous Peoples. This Article asks what personhood could mean for Stanley Park and for Canadian urban parks more broadly. In particular, it explores whether personhood is a …

The Rise Of The 'Immigrant-As-Injury' Theory Of State Standing, Jennifer Lee Koh

American University Law Review

Despite the Biden Administration’s efforts to hold itself out as a humane alternative to the excesses of immigration enforcement during the Trump presidency, federal courts have prevented a number of immigration policy changes from going forward during the first half of the Biden era. States serve as the primary plaintiffs in these lawsuits, which have impacted cornerstone immigration policies such as the termination of exclusionary border policies, the restoration of Deferred Action for Childhood Arrivals (DACA), and the application of enforcement priorities. During the 2022-23 term, the Supreme Court will hear certain states’ challenge to immigration enforcement priorities in United …

Solving The Procedural Puzzles Of The Texas Heartbeat Act And Its Imitators: The Limits And Opportunities Of Offensive Litigation, Howard M. Wasserman, Charles W. Rhodes

American University Law Review

The Texas Heartbeat Act, enacted in 2021 as Senate Bill 8 (S.B. 8), prohibits abortions following detection of a fetal heartbeat, a constitutionally invalid ban under current Supreme Court precedent. But the method of enforcement in the Texas law is unique—it prohibits enforcement by government officials in favor of private civil actions brought by “any person,” regardless of injury. Texas sought to burden reproductive-health providers and rights advocates with costly litigation and potentially crippling liability.

In a series of articles, we explore how S.B. 8's reliance on exclusive private enforcement at the expense of public enforcement creates procedural and jurisdictional …

The Racial Justice Imperative To Reimagine Immigrant Children's Rights: Special Immigrant Juveniles As A Case Study, Dalia Castillo-Granados, Rachel Leya Davidson, Laila L. Hlass, Rebecca Scholtz

American University Law Review

The immigration legal system has codified and perpetuated racial violence in many ways, yet the experiences of young people of color in this system have yet to be deeply examined. This Article surfaces the distinct and varied racialized harms that children experience in the immigration system through the example of Special Immigrant Juveniles. Special Immigrant Juvenile Status (SIJS) is the only immigration status created for and limited to children. A child—defined in immigration law as someone who is under twenty-one years of age and unmarried—is eligible to seek SIJS with U.S. Citizenship and Immigration Services (USCIS) if a state court …

Defining "Habitat" Post-Weyerhaeuser: Critical Habitat Regulations Under The Endangered Species Act Must Promote Species Recovery, Nate Mccabe

American University Law Review

As one of the strongest federal environmental statutes, the Endangered Species Act (ESA) is a powerful tool for environmental litigators to uphold the important conservation objectives articulated by Congress in 1973. In recent years, the role of “critical habitat” within the ESA has come into question. The Supreme Court decided in Weyerhaeuser that “critical habitat” must also qualify as “habitat,” but it failed to articulate any guidelines for determining what “habitat” actually is. This decision incited a regulatory tug-of-war over the proper definition of “habitat” within the ESA. This Comment explores the approaches to defining “habitat” employed by the Trump …

Spider-Man: Work From Home And Retain No Copyright Under The Instance And Expense Test, Shahnoor Kamal Khan

American University Law Review

From Spider-Man to Ms. Marvel, superheroes are beloved by many, but owned by the few. Marvel Entertainment retains the copyright to iconic characters such as these, despite the fact that Marvel’s employees did not create them. These characters were created by freelance artists Jack Kirby, Steve Ditko, and Lawrence Lieber, among others. Yet, the Second Circuit ruled in Marvel Characters v. Kirby that these freelance artists have no claim of copyright over their own masterful works. The Second Circuit relied on the instance and expense test for copyright, as opposed to the Supreme Court’s leading copyright decision, Community for Creative …

Onlife Harms: Uber And Sexual Violence, Amanda Turnbull

Canadian Journal of Law and Technology

Uber markets itself as a technology company that is managed primarily by ML algorithms with the support of human engineers. Yet, in its 2019 Report, the role that its technology played in relation to sexual violence is, for all intents and purposes, absent. Likewise, solutions dealing specifically with the role of technology in facilitating gender-based violence are also missing from the series of initiatives in which Uber has invested that are aimed at preventing sexual violence. Uber was not sufficiently rigorous in defining the problem it was trying to solve. It was a missed opportunity that has resulted in continued …

Bargaining For Abolition, Zohra Ahmed

Fordham Law Review

What if instead of seeing criminal court as an institution driven by the operation of rules, we saw it as a workplace where people labor to criminalize those with the misfortune to be prosecuted? Early observers of twentieth century urban criminal courts likened them to factories. Since then, commentators often deploy the pejorative epithet “assembly line justice” to describe criminal court’s processes. The term conveys the criticism of a mechanical system delivering a form of justice that is impersonal and fallible. Perhaps unintentionally, the epithet reveals another truth: criminal court is also a workplace, and it takes labor to keep …

Lifting Labor’S Voice: A Principled Path Toward Greater Worker Voice And Power Within American Corporate Governance, Leo E. Strine Jr., Aneil Kovvali, Oluwatomi O. Williams

Ira M. Millstein Center for Global Markets and Corporate Ownership

The dramatic decline in corporate gainsharing with American workers over the last two generations has contributed to stagnating wages, soaring inequality, and economic insecurity. There are global causes of greater inequality and depressed pay that go beyond the decline in workers’ share. But many public policymakers and economists believe that the reduced share of corporate prof its that American workers receive has been a major factor in the much larger increase in inequality that has occurred in the United States, compared to its market economy allies in the Organization for Economic Co-operation and Development (OECD). To some, the explanation for …

The Center Cannot Hold: Zoom As A Potemkin Village, Hadar Aviram

FIU Law Review

The time has come to click the “join” button once more. It is the end of the semester, and our colleague Abe, chair of our ad-hoc task force for online teaching, has convened an online teaching excellence panel. The purveyors of said excellence are four faculty members whose evaluations showed that they were, as his email said, “online teaching rockstars.” Unfathomably, I am one of the four, and the last scheduled to present. One by one, little rectangles pop against the black backdrop of the screen, like the bubbles my three-year-old son and I blow in the backyard out of …

Stereotypes, Sexism, And Superhuman Faculty, Teneille R. Brown

FIU Law Review

This symposium article explores how law professors with caretaking responsibilities struggled so greatly during the first year of the COVID-19 pandemic. Because legal academia prioritizes masculine ideals of competence over warmth, faculty were expected to suppress their emotions and mental health needs in order to maintain the appearance of competence. While students were allowed to be seen as vulnerable individuals needing accommodations, we did not extend this same compassion to our faculty colleagues. To explain why the treatment was so disparate, I incorporated existing research on the stereotype content model (SCM) and psychological theories of dehumanization. These theories help to …

In Re The Walt Disney Co. Derivative Litigation Rewritten, Hillary A. Sale

Georgetown Law Faculty Publications and Other Works

In re The Walt Disney Co. Derivative Litigation is notable for upholding the broad latitude courts afford to boards through the business judgment rule. The case addressed a $130 million termination package delivered to former Disney CEO, Michael Ovitz, after fourteen months of underperformance at the company. This rewritten opinion, to be published in “Feminist Judgements: Rewritten Corporate Law,” (Kelli Alces Williams, Anne Choike, & Usha R. Rodrigues, eds.) (Cambridge Univ. Press, forthcoming 2022), follows the style of the Delaware Supreme Court and reaches the same outcome with a different approach. The opinion expounds on the corporate governance practices in …

Mary Lou Graves, Nolen Breedlove, And The Nineteenth Amendment, Ellen D. Katz

Articles

This close examination of two cases is part of a larger ongoing project to provide a distinct account of the Nineteenth Amendment. In 1921, the Alabama Supreme Court held the Nineteenth Amendment required that any poll tax be imposed equally on men and women. Sixteen years later, the Supreme Court disagreed. Juxtaposing these two cases, and telling their story in rich context, captures my larger claim that—contrary to the general understanding in the scholarly literature—the Nineteenth Amendment was deliberately crafted as a highly circumscribed measure that would eliminate only the exclusively male franchise while serving steadfastly to preserve and promote …

Disparate Discrimination, Leah M. Litman

Michigan Law Review

This Article explains and analyzes a recent trend in the Supreme Court’s cases regarding unintentional discrimination, where the argument is that a law has the effect of producing a disadvantage on members of a particular group. In religious discrimination cases, the Court has held that a law is presumptively unconstitutional if the law results in a comparable secular activity being treated more favorably than religious activity. Yet in racial discrimination cases, the Court has said the mere fact that a law more severely disadvantages racial minorities as a group does not suffice to establish unlawful discrimination.

The two tracks for …

Taking Stock Of The “Compatibility Requirement”: What Limitations Does It Impose For High Seas Fishing?, Sean D. Murphy

GW Law Faculty Publications & Other Works

Under the contemporary law of the sea, coastal States enjoy sovereign rights within their exclusive economic zones (EEZs) to manage and exploit fishery resources. At the same time, States maintain the traditional freedom to fish on the high seas subject to some treaty obligations, including those arising from regional management fisheries organizations (RMFOs) and other treaties, such as (once it enters into force) the agreement on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (BBNJ agreement). Given that straddling stocks and highly migratory species of fish move with ease between EEZs and the high …

Legal Recognition Of Animal Sentience: The Case For Cautious Optimism, Jane Kotzmann

Animal Sentience

Rowan et al.’s target article provides a valuable indication of the work that was required to reach the point where animals are recognised as sentient in various laws. To ensure this work was not in vain, the language of sentience needs to be used as a moral currency to demand further cultural change involving greater human respect for animals.

Your Body, Your Cells? Direct-To-Consumer Marketing Of Autologous Stem Cell Therapies In The United States, Japan, And Australia, Kathleen C. Laird

Vanderbilt Journal of Transnational Law

Stem cell tourism has relocated; patients in search of stem cell therapies to treat nearly any disease can find clinics selling miracle cures without traveling beyond their national borders. Businesses marketing unproven autologous stem cell therapies are now plentiful in highly regulated, wealthy countries, including the United States, Japan, and Australia. Despite regulatory oversight of stem cell therapies and strong support for scientific innovation in these countries, the internet and social media have facilitated the rapid growth and success of a new industry selling unproven treatments directly to consumers. Clinics selling unproven autologous stem cell therapies have succeeded by developing …

The Uncertain Foundations Of Public Law Theory, Jud Mathews, Emad Atiq

Faculty Scholarship

No abstract provided.

Contractual Evolution, Matthew Jennejohn, Julian Nyarko, Eric L. Talley

Faculty Scholarship

Conventional wisdom portrays contracts as static distillations of parties’ shared intent at some discrete point in time. In reality, however, contract terms evolve in response to their environments, including new laws, legal interpretations, and economic shocks. While several legal scholars have offered stylized accounts of this evolutionary process, we still lack a coherent, general theory that broadly captures the dynamics of real-world contracting practice. This paper advances such a theory, in which the evolution of contract terms is a byproduct of several key features, including efficiency concerns, information, and sequential learning by attorneys who negotiate several deals over time. Each …

Table Of Contents & Masthead

Lewis & Clark Law Review

Front Matter contains Table of Contents, Masthead, and faculty for Lewis & Clark Law Review Volume 25, Issue 4.