Digital Commons Network^™

World Poverty And Food Insecurity, Carmen Gonzalez

Faculty Articles

Our present global economic order produces a stable pattern of widespread malnutrition and starvation among the poor, with some eighteen million persons dying each year from poverty related causes, and there are likely to be feasible alternative regimes that /ill not produce similarly severe deprivations. If this is so, the victims of avoidable deprivations are not merely poor and starving, but impoverished and starved through an institutional order coercively imposed upon them. There is an injustice to this economic order, which it would be wrong for its more affluent participants to perpetuate.

Environmental Justice, Human Rights, And The Global South, Carmen Gonzalez

Faculty Articles

From the Ogoni people devastated by oil drilling in Nigeria to the Inuit and other indigenous populations threatened by climate change, communities disparately burdened by environmental degradation are increasingly framing their demands for environmental justice in the language of environmental human rights. Domestic and international tribunals have concluded that failure to protect the environment violates a variety of human rights (including the rights to life, health, food, water, property, and privacy; the collective rights of indigenous peoples to their ancestral lands and resources; and the right to a healthy environment). Some scholars have questioned the utility of the human rights …

Bridging The North-South Divide: International Environmental Law In The Anthropocene, Carmen Gonzalez

Faculty Articles

This article calls for a fundamental reorientation of international environmental law to bridge the North-South divide and respond to the ecological crises of the Anthropocene. Such a reconceptualization of international environmental law must be normatively grounded in respect for nature and in the quest for environmental justice within, as well as between, countries. International environmental law must directly challenge the relentless drive toward economic expansion and unbridled exploitation of people and nature rather than merely attempt to mitigate its excesses. An essential step toward such a reconceptualization is to examine the ways in which international law has historically engaged with …

The Therapeutic Function Of Testamentary Formality, Mark Glover

Faculty Articles

Therapeutic jurisprudence is concerned with the psychological consequences of the law This article uses this burgeoning field to analyze one aspect of the estate planning process namely the formalities of willexecution The article first identifies the positive and negative psychological consequences of the formalities that require valid wills to be written signed and witnessed Although the analysis suggests that when coupled with a rule of strict compliance these formalities can negatively affect the testator's psychological wellbeing the article ultimately concludes that testamentary formality serves an overall therapeutic function The article then examines various reforms of the law of wills such …

A Therapeutic Jurisprudential Framework Of Estate Planning, Mark Glover

Faculty Articles

The psychological consequences of the law of succession largely have been overlooked This oversight is confounding given that the estate planning and probate processes are emotionally charged and raise a number of psychological issues Filling this analytical void this article examines the estate planning process from a therapeutic jurisprudential perspective and makes two primary contributions to the study of the law of succession First the article identifies the psychological consequences of the estate planning process Although the analysis suggests that certain aspects of preparing and implementing an estate plan can negatively affect one's psychological wellbeing the analysis also reveals that …

Comments Of The Center For Indian Law & Policy On Washington’S Fish Consumption Rate Technical Support Document, Catherine O’Neill

Faculty Articles

Comments Submitted to the Washington State Department of Ecology.

Conducting Research With Tribal Communities: Sovereignty, Ethics, And Data-Sharing Issues, Catherine O’Neill, Anna Harding, Barbara Harper, Dave Stone, Patricia Berger, Stuart Harris, Jamie Donatuto

Faculty Articles

When conducting research with American Indian tribes, informed consent beyond conventional Institutional Review Board (IRB) review is needed because there may be potential for adverse consequences at a community or governmental level that are unrecognized by academic researchers. This paper reviews sovereignty, research ethics, and data-sharing considerations when doing community-based participatory health-related or natural resource-related research with American Indian nations and presents a model material and data-sharing agreement that meets tribal and university requirements. Only tribal nations themselves can identify potential adverse outcomes, and they can do this only if they understand the assumptions and methods of the proposed research. …

The Global Food System, Environmental Protection, And Human Rights, Carmen G. Gonzalez

Faculty Articles

The global food system is exceeding ecological limits while failing to meet the nutritional needs of a large segment of the world’s population. While law could play an important role in facilitating the transition to a more just and ecologically sustainable food system, the current legal framework fails to regulate food and agriculture in an integrated manner. The international legal framework governing food and agriculture is fragmented into three self-contained regimes that have historically operated in isolation from one another: international human rights law, international environmental law, and international trade law. International trade law has taken precedence over human rights …

Centennial Reflections On The California Law Review'S Scholarship On Race: The Structure Of Civil Rights Thought, Richard Delgado

Faculty Articles

The author reviews one hundred years of the California Law Review's rich body of scholarship on race and civil rights in an effort to discern its general direction and contours. Discerning two broad paradigms--a black-white binary of race and a liberty-equality divide--he notes that the two not only have been emerging in roughly the same period but are beginning to occupy the same territory. After describing the two paradigms and explaining their origin and operation, he puts forward a prediction for what their convergence may portend for the future of civil rights thought.

Housing And Human Services: Intergenerational Policy Considerations, Tony Carrizales, Andrew I.E. Ewoh

Faculty Articles

The Journal of Public Management and Social Policy begins its seventeenth volume by examining various issues that not only impact people today, but have policy implications for future generations. Intergenerational social policy is a critical discussion for academic and practitioners to continually have and we hope this particular issue of JPMSP furthers those discussions. Some underscoring themes found in this issue's articles include housing and human services. Overall, the issue brings together five general articles in the first issue of this seventeenth volume of JPMSP.

Balancing The "Zoning Budget", Roderick M. Hills Jr., David N. Schleicher

Faculty Articles

The politics of urban land use frustrate even the best intentions. A number of cities have made strong political commitments to increasing their local housing supply in the face of a crisis of affordability and availability in urban housing. However decisions to engage in “up-zoning,” or increasing the areas in which new housing can be built, are often offset by even more “down-zoning,” laws that decrease the ability of residents in a designated area to build new housing as-of-right. The result is that housing availability does not increase by anywhere near the amount that elected officials promised. In this Article, …

An Environmental Justice Critique Of Comparative Advantage: Indigenous Peoples, Trade Policy, And The Mexican Neoliberal Economic Reforms, Carmen G. Gonzalez

Faculty Articles

The free market reforms adopted by Mexico in the wake of the debt crisis of the 1980s and in connection with the North American Free Trade Agreement (NAFTA) have jeopardized the physical and cultural survival of Mexico’s indigenous peoples, increased migration to the United States, threatened biological diversity in Mexico, and imposed additional stress on the environment in the United States. Despite these negative impacts, NAFTA continues to serve as a template for trade agreements in the Americas. Unless this template is fundamentally restructured, future trade agreements may replicate throughout the Western hemisphere many of the economic, ecological and social …

Climate Change, Food Security, And Agrobiodiversity: Toward A Just, Resilient, And Sustainable Food System, Carmen G. Gonzalez

Faculty Articles

The global food system is in a state of profound crisis. Decades of misguided aid, trade and production policies have resulted in an unprecedented erosion of agrobiodiversity that renders the world’s food supply vulnerable to catastrophic crop failure in the event of drought, heavy rains, and outbreaks of pests and disease. Climate change threatens to wreak additional havoc on food production by increasing the frequency and severity of extreme weather events, depressing agricultural yields, reducing the productivity of the world’s fisheries, and placing pressure on scarce water resources. Furthermore, the climate crisis and the biodiversity crisis are occurring at a …

The Global Politics Of Food: Introduction To The Theoretical Perspectives Cluster, Carmen G. Gonzalez

Faculty Articles

In May 2010, the Universidad Interamericana in Mexico City hosted an international conference on The Global Politics of Food: Sustainability and Subordination. Sponsored by Latina and Latino Critical Legal Theory, Inc. and by Seattle University School of Law, the conference took place under the auspices of the South-North Exchange on Theory, Culture and Law (SNX), a yearly gathering of scholars in the Americas that seeks to foster transnational, cross-disciplinary and inter-cultural dialogue on current issues in law, theory and culture. Published in the University of Miami Inter-American Law Review, the conference papers examine the complex ways in which the …

Editors' Introduction - 21st Century Public Management: Environmentalism And E-Government, Andrew I.E. Ewoh, Tony Carrizales

Faculty Articles

The Journal of Public Management and Social Policy, in completing its sixteenth volume, looks to continue bringing together a collection of articles and research that review polices and cases underscoring the area of public management and social policy throughout the United States and around the world. This issue’s contributors provide contemporary analyses of public management and social policies in areas ranging from the fiscal benefits of developing "green" buildings to the organizational life cycle of environmental justice groups. Topics covered in this issue also include the areas of e-government and public contracting. Overall, the issue brings together four general articles …

Canaries In The Coal Mine: The Tactical Use Of The National Labor Relations Act To Aid In The Protection Of Non-Union Workers Exposed To Pollutants, Michael C. Duff

Faculty Articles

Canaries were used in times past to alert miners to the presence of dangerous gases in a mine A canary would die and the miners would thereby become aware of deadly but sometimes odorless gases Just as canaries have alerted miners to the presence of dangerous gases in mines workers exposed to dangerous pollutants and conditions in workplaces may function as societal canaries warning the broader public of environmental dangers but hopefully without having to die in the process To perform this role the workers must live to work and protest another day Section 7 of the National Labor Relations …

Editors' Introduction - Public Service: Law Enforcement, Environmentalism And Health, Andrew I.E. Ewoh, Tony Carrizales

Faculty Articles

The Journal of Public Management and Social Policy, beginning its sixteenth volume, aims to continue bringing together a collection of articles and research that review polices and cases underscoring the area of social policy and management throughout the United States and around the world. The issue’s contributors provide contemporary analyses of public management and social policies in areas ranging from perceptions of diversity and law enforcement to health care policy and issues. The issue brings together four general articles, and a book review to begin the first issue in this sixteenth volume of JPMSP.

Keynote Address, Dean Spade

Faculty Articles

This article challenges the traditional methods taken by progressive lawyers and activists. It argues that superficial changes to a marginalizing system simply create “window dressing” that serves to reinforce the status quo. This article is a provocative call to radicalize legal practice, to be critical of all movements, and always question who is being excluded. It highlights that what may appear like making things better may actually be a contribution to the legitimization of the system that one intends to challenge.

The Global Food Crisis: Law, Policy And The Elusive Quest For Justice, Carmen G. Gonzalez

Faculty Articles

The food crisis of 2008, the subsequent financial crisis, and the ongoing climate crisis have created new challenges to the attainment of global food security. This essay examines the historic and current practices that have contributed to food insecurity in developing countries, and recommends several steps that the international community might take to promote the fundamental human right to food. The essay begins by outlining the trade and aid policies that laid the foundation for food insecurity in the global South from colonialism until the early twenty-first century. It then examines the impact of the financial crisis and the climate …

Why We Do The Things We Do? The Role Of Ethics In Water Resource Planning, Amy Hardberger

Faculty Articles

Water provides a natural framework in the role of ethics because ethical issues are present in every facet of water management. The value of water and the creation of ethics dictate decisions regarding water resource management. Value can be assessed from factors including happiness, well-being, or intrinsic value. Once a value is assessed, obligations that dictate actions regarding this issue are generated, and an ethic is created.

Various domestic and international policies have, both explicitly and implicitly, called for a human right to water. The presence of domestic and international policies that recognize or protect a person’s right to water …

Panel: Ethics-Based Decision-Making In Societal Water Management, Amy Hardberger

Faculty Articles

There is an ethical overlay to water-related decision-making and management, frequently drawing on personal experiences with water and the ubiquitous need for water. The modern South African Bill of Rights, ensuring its people’s access to water; the movement towards recognizing water as a basic human right; and even occurrences in Texas, including the passage of “environmental flows legislation” and the efforts to preserve and protect the Edwards Aquifer, reflect the presence of ethics in decision-making with respect to water management. Ethics are a part of water management decision-making.

Squatters, Pirates, And Entrepreneurs: Is Informality The Solution To The Urban Housing Crisis?, Carmen Gonzalez

Faculty Articles

Giving the poor legal title to the lands they occupy extra-legally (informally) has been widely promoted by the World Bank and by best-selling author Hernando de Soto as a means of addressing both poverty and the scarcity of affordable housing in the urban centers of the global South. Using Bogota, Colombia, as a case study, this article interrogates de Soto's claims about the causes of informality and the benefits of formal title. The article concludes that de Soto's analysis is problematic in three distinct respects. First, de Soto exaggerates the benefits of formal title and fails to consider its risks. …

Environmental Justice In The Tribal Context: A Madness To Epa's Method, Catherine O’Neill

Faculty Articles

Many American Indian tribes and their members are among those most burdened by mercury contamination. When the Environmental Protection Agency (EPA) set out to regulate mercury emissions from coal-fired utilities, it was aware that mercury contamination and regulation affects tribal rights and resources. EPA's inquiry, therefore ought to have been differently framed, given tribes' unique legal and political status. Specifically, EPA ought to have confronted squarely the impact of its decision on tribes' fishing rights, rather than consider these rights as a mere afterthought. EPA 's process, too, should have been differently conducted EPA should have consulted with tribes from …

No Mud Pies: Risk Avoidance As Risk Regulation, Catherine O’Neill

Faculty Articles

Regulation in the environmental context has, until recently, been guided by risk reduction - strategies that require risk-producers to prevent, limit, or clean up contaminants. However, it has increasingly come to rely on "risk avoidance" - strategies that call upon risk-bearers to alter their practices and ways of living so as to avoid exposure to contaminants left unabated. For example, women and children might be asked to eliminate fish from their diets to avoid the risks of methylmercury contamination; asthmatics might be advised to refrain from going outside on "ozone alert" days to avoid the risks of ground-level ozone pollution; …

Intellectual Property From Below: Copyright And Capability For Education, Margaret Chon

Faculty Articles

An approach to intellectual property from within a human development framework can contribute meaningfully to the WIPO Development Agenda, which was approved by the WIPO General Assembly in September 2007. Setting the proper regulatory balance between exclusive rights and access through exceptions and limitations to those rights is key to building national innovation capacity. A human development framework allows intellectual property norm-setters to prioritize the development of healthy and literate populations who are foundational to the functioning knowledge economies that intellectual property already assumes. Building upon an earlier piece in which Professor Chon posited that a substantive equality principle was …

Protecting The Tribal Harvest: The Right To Catch And Consume Fish, Catherine O’Neill

Faculty Articles

This article transcribes a presentation delivered by Professor O’Neill at the EPA-Tribal Leaders Summit, hosted by the Confederated Tribes of the Umatilla Indian Reservation, August 21-25, 2006. This article maintains that the call to protect tribal harvests—to ensure healthy and robust fisheries—is at the core of the sovereign compact between the United States and the various Native nations. The United States is, in fact, legally obligated to uphold this compact, manifested prominently in the treaties. The United States and the states are also legally bound to remedy a long history of attempts to assimilate and discriminate against Native peoples and …

Deconstructing The Mythology Of Free Trade: Critical Reflections On Comparative Advantage, Carmen Gonzalez

Faculty Articles

The theory of comparative advantage serves as the theoretical justification for the neoliberal economic reforms promoted by the International Monetary Fund, the World Bank, and multilateral and regional free trade agreements. This article employs insights from both neoclassical and heterodox economics in order to critique the theory of comparative advantage as applied to the agricultural sector. In particular, the article takes aim at the illusory notion that eliminating distortions in international agricultural trade caused by the lavish agricultural subsidies of wealthy nations will be sufficient to “level the playing field” and promote prosperity in both developed and developing countries. The …

The Perils Of Risk Avoidance, Catherine O'Neill

Faculty Articles

This article illustrates that in managing the risks and responding to the harms of environmental contamination, there has been a recent embrace of strategies involving risk avoidance in lieu of risk reduction. Risk reduction strategies aim to clean up, limit, or prevent environmental contamination in the first place. Risk avoidance strategies, by contrast, leave contamination unabated. Risk avoidance strategies address the harms of contamination by requiring those whose circumstances or lifeways leave them exposed to alter their ways, thereby "avoiding" the risk. A recent turn to risk avoidance is problematic on several scores and particularly troubling from the perspective of …

Markets, Monocultures, And Malnutrition: Agricultural Trade Policy Through An Environmental Justice Lens, Carmen Gonzalez

Faculty Articles

Much of the literature on environmental justice struggles in the United States and in the Global South has highlighted the disproportionate concentration of environmental hazards in poor communities and communities of color. However, it is equally important to evaluate how human societies distribute access to environmental necessities, such as food and water. Food is a quintessential environmental necessity that is critical human survival, and the right to food is recognized under a variety of international human rights law instruments. This article examines the complex ways in which the rules governing international trade in agricultural products affect the fundamental human right …

Life, Liberty, And The Pursuit Of Water: Evaluating Water As A Human Right And The Duties And Obligations It Creates, Amy Hardberger

Faculty Articles

The Right to Water should be an independent, explicit human right. As such, the status of the right to water would be raised to the status of customary international law (jus cogens), imposing an affirmative, obligatory duty an all nations. Historically the right to water has been included in the right to life, limiting the right; however, that approach undermines the essential importance of water and causes enforcement problems that would be avoided by regarding water as an independent right.

Landmark international agreements, treatises, and the work of various international entities and other non-governmental organizations have made tremendous strides in …