Law Commons^™

The Delegation Doctrine, Jonathan Adler

Faculty Publications

The nondelegation doctrine may remain moribund, but the outlines of a delegation doctrine may be visible in the Court’s recent jurisprudence. Instead of policing the limits on Congress’s power to delegate authority to administrative agencies, the Court has instead been focusing on whether the power administrative agencies seek to exercise has been properly delegated by Congress in the first place. This emerging delegation doctrine may be seen in both the Court’s recent major questions doctrine cases, as well as the Court’s decisions refining and constraining the Chevron doctrine. In both contexts the Court has embraced the principle that agencies may …

New Rules For A New Era: Regulating Artificial Intelligence In The Legal Field, Hunter Cyran

Journal of Law, Technology, & the Internet

As Artificial Intelligence (AI) continues to evolve at a rapid pace, many industries have already started integrating new technologies to reduce costs and labor. While this is practical for some industries, the legal industry should be cautious before fully integrating AI. Some legal-service providers are already developing and offering new AI products. But the legal industry must approach these new products with some skepticism. While AI may eventually bring positive changes to the legal industry, AI currently has many flaws. This can create negative unintended consequences for attorneys and judges that are unaware of these flaws. Further, AI is not …

The Reckless Tolerance Of Unsafe Autonomous Vehicle Testing: Uber's Culpability For The Criminal Offense Of Negligent Homicide, Helen Stamp

Journal of Law, Technology, & the Internet

When Elaine Herzberg was struck and killed by an Uber autonomous vehicle on a public road in Arizona in 2018, sole criminal responsibility fell on the Uber employee operating the vehicle. Uber escaped all criminal accountability despite evidence of flawed vehicle technology and Uber’s non-existent safety culture. This lack of accountability is confronting given that legislators and courts in Arizona, and in other States, have consistently supported criminal sanctions for corporations who are culpable for the offense of negligent homicide.

The criminal proceedings against the Uber vehicle operator were settled in July 2023, closing off the court’s ability to consider …

The Future Of The Christchurch Call To Action: How To Build Multistakeholder Initiatives To Address Content Moderation Challenges, Rachel Wolbers

Journal of Law, Technology, & the Internet

This article explores the challenges the New Zealand Government faced after the events in Christchurch on 15 March 2019, where a violent gunman killed 51 people and live-streamed his attack on social media. The video was viewed millions of times in the days following, even as the tech companies took extraordinary efforts to reduce its virality. To find a long-term solution that ended the proliferation of this violent content while protecting human rights, the New Zealand Government decided to take a non-regulatory approach that worked alongside tech companies and civil society. The result was the creation of the Christchurch Call …

Tools Do Not Create: Human Authorship In The Use Of Generative Artificial Intelligence, Michael D. Murray

Journal of Law, Technology, & the Internet

Artistic tools, from brushes to complex algorithms, don’t create art; human artists do. The advent of generative AI tools like Midjourney, DALL-E, and Stable Diffusion has blurred this understanding, causing observers to believe these tools are the authors of the artworks they produce, even so far as to imagine that the artworks are “created” by the AI in the copyright sense of the word. Not so.

The U.S. Copyright Office recently issued guidance on the copyrightability of works produced using generative AI tools. The Office has accepted the narrative that AI tools perform the steps of authorship, conceiving of the …

Closing Remarks: Toward A Climate Migration Solution, Austin T. Fragomen, Jr., Nancy H. Morowitz

Case Western Reserve Journal of International Law

No abstract provided.

The Commerce Clause Doesn’T Override Rules Governing The Taxing Power, Erik M. Jensen

Faculty Publications

This article challenges the view that the commerce clause, including the foreign commerce part of that clause, provides authority for enacting taxes that don’t meet the explicit requirements for taxes set out in the Constitution—the uniformity rule for indirect taxes (duties, imposts, and excises), the apportionment rule for direct taxes that aren’t taxes on incomes, and the export clause that prohibits taxation of articles exported from any state. That reading of the commerce clause would gut constitutional provisions that were clearly intended to be limitations on the congressional taxing power. Even if a tax might be construed as a regulation …

Employers And The Privatization Of Public Health, Sharona Hoffman

Faculty Publications

This Article focuses on the role of employers in public health and argues that they constitute increasingly important actors in the U.S. public health arena. In the aftermath of the COVID-19 pandemic, a series of judicial decisions and newly enacted statutes enfeebled the public health powers of the federal and state governments. In a 2023 statement, Supreme Court Justice Neil Gorsuch clearly articulated his antagonism towards government-initiated COVID-19 interventions, describing them as “the greatest intrusions on civil liberties in the peacetime history of this country.” All too many share his views.

Employers may be highly motivated to safeguard their workers’ …

Keynote Address For The Cox International Law Center Conference, James Chen

Case Western Reserve Journal of International Law

No abstract provided.

Patient Autonomy, Public Safety, And Drivers With Cognitive Decline, Sharona Hoffman, Cassandra Burke Robertson

Faculty Publications

With a growing elderly population, cognitive decline in drivers has become a significant public safety concern. Currently, over thirty-two million individuals who are seventy or older have driver’s licenses, and that number is growing quickly. In addition, almost ten percent of U.S. seniors (those sixty-five and older) have dementia, and an additional twenty-two percent have mild cognitive impairment. Between a quarter and a half of individuals with mild to moderate dementia still drive. As cognitive abilities such as memory, attention, and decision-making skills deteriorate, a driver's ability to operate a vehicle safely can be compromised. This not only puts the …

Assessing The Performance Of Place-Based Economic Development Incentives: What’S The Word On The Street?, Matthew Rossman

Faculty Publications

Although politically popular, place-based economic development incentives have had limited success and proven difficult to evaluate. Unlike most legal scholarship on this topic, this article takes a qualitative approach in examining them. It studies the performance of four distinct types of development incentives intended to alleviate economic distress, using insight gathered from interviews with business owners, development professionals, and community members in six adjoining neighborhoods, where past efforts at revitalization have failed despite locational advantages.

The challenges faced by economically distressed places are typically varied and complex. The qualitative sampling techniques employed in this article’s research generated nuanced, ‘on the …

Will Climate Change Be The Next Grotian Moment?, Michael P. Scharf

Case Western Reserve Journal of International Law

Under the classic paradigm of international environmental law articulated in the 1941 Trail Smelter arbitration decision, States are responsible for downstream or downwind harm that crosses from their territory into another State. But climate change threatens not just neighboring States but the entire global commons. This Article explores whether the conditions are ripe for a “Grotian Moment”—a paradigm shifting development leading to accelerated formation of customary international law related to the human right to a healthy environment.

U.S. National Security And Climate Change, Alexandra E. Koch, Nicole K. Carle, Gregory P. Noone

Case Western Reserve Journal of International Law

As sea temperatures rise and natural disasters intensify, it is critical that the U.S. national security strategy actively include plans to account for global climate change and address the complex environmental and humanitarian challenges that parallel and are driven by rising temperatures, such as resource scarcity, forced displacement, and regional instability. Climate change acts as a “threat multiplier for instability” in some of the most volatile regions of the world and can contribute to rising tensions even in historically stable regions. Climate change can also lead to increased vulnerability of military infrastructure and logistics, undermine military readiness, and demand a …

Climate Change And Cross-Border Displacement: What The Courts, The Administration, And Congress Can Do To Improve Options For The United States, Kate Jastram

Case Western Reserve Journal of International Law

There is no doubt that the United States, even under existing law, could do much more to protect people displaced across international borders in the context of climate change and disasters. All branches of government have a role to play. Federal courts must thoughtfully assess litigants bringing asylum and CAT claims in the context of climate change and disasters. The administration must clarify interpretation of the refugee definition and use all available tools at its disposal to create new legal pathways as outlined in the White House Report. For its part, Congress must modernize the statutory basis for international protection …

Ecocide In War And Peace, From The Air Pollution Consequences Of The War In Ukraine To Japan's Disposal Of Fukushima Water Into The Ocean, Giovanni Chiarini

Case Western Reserve Journal of International Law

This Article will propose and analyze potentially prosecutable cases of alleged global ecocide and propose targeted amendments to Articles 36(3) and (5) of the ICC Rome Statute. These proposed amendments may serve as a blueprint to procedurally ensure environmental expertise at the international judicial level. Ecocide is unfortunately not currently recognized under the Rome Statute. However, certain scholars have suggested defining it as a fifth international crime. This analysis identifies environmental crises, international criminal law expectations and examines the environmental pollution caused by the Russian invasion of Ukraine and the Japanese government’s decision to dispose of radioactive treated water from …

Fossil Fuel Fraud, Wes Henricksen

Case Western Reserve Journal of International Law

In some recent climate litigation cases, plaintiffs have added a claim for common law fraud, in addition to the more traditionally pursued claims for nuisance, negligence, and trespass. Fraud claims against fossil fuel companies center on the decades-long campaign of climate change doubt that was organized, funded, and carried out by oil, gas, and coal industry leaders, as well as public relations firms and industry advocacy groups working on their behalf. But while the doubt campaign certainly fits the fraud mold—a purposeful effort to mislead for profit—because it was aimed at defrauding the public at large, rather than defrauding a …

Deadly Journeys: Climate Change, U.S. Border Enforcement, And Human Rights, Julia Neusner

Case Western Reserve Journal of International Law

Extreme weather events and slow onset disasters, exacerbated by climate change, are increasingly driving global displacement. As displaced people seek cross-border protection in unprecedented numbers, the United States has responded by tightening border controls and restricting asylum access. These policies have exposed migrants and asylum seekers in transit to greater risks of injury and death due to the impacts of climate change and climate-related disasters. Drawing on legal analysis, historical context, and firsthand interviews with people seeking U.S. asylum, this Article examines the implications of U.S. policies that limit freedom of movement and asylum access. The Article raises critical legal …

Foreword: Climate Change And International Law At A Crossroads, Michael P. Scharf, Amanda Price

Case Western Reserve Journal of International Law

No abstract provided.

Keynote Speech By John Knox, Former U.N. Special Rapporteur For Human Rights And The Environment, John Knox

Case Western Reserve Journal of International Law

No abstract provided.

The Right To A Healthy Environment: Underlying Policy Formation Challenges In The United States During The Trump Era, Michael J. Kelly

Case Western Reserve Journal of International Law

The right to live in a healthy environment is the right to live in an environment where Donald Trump is not president. As this Article demonstrates, Trump’s negative impact across a wide spectrum of policy areas implicated by the right’s goal of creating and maintaining a healthy environment in the United States ran directly opposite to achieving that goal. (Abstract excerpted from article's introduction.)

Crimes Against The Environment, Ecocide, And The International Criminal Court, Milena Sterio

Case Western Reserve Journal of International Law

Ecocide as well as other crimes against the environment have become a feature of warfare, as exemplified in the Russian invasion of Ukraine and the devastating environmental harm caused as a result. As this Paper has described, significant obstacles remain associated with the ICC’s ability to prosecute environmental crimes, either as war crimes or crimes against humanity. (Abstrast excerpted from article's Conclusion.)

Negotiating Environmental Justice In Ukraine, Paul R. Williams, Sindija Beta

Case Western Reserve Journal of International Law

This Article examines the dynamics of negotiating environmental justice in Ukraine amid pressure from certain international actors for an Amnesty-Based Peace in Ukraine. While it is currently unclear how Russia’s war in Ukraine will end, it is likely that there will be significant discussion around forms of justice, including how to address the grave environmental damage Russia has caused in Ukraine. This Article looks at previous precedents of Amnesty-Based Peace in Angola, Haiti, and Uganda and decisions and commentaries by international actors to argue that appeasement has not fostered durable peace and is generally disfavored by judicial and non-judicial bodies. …

Climate Change And Internal Displacement In Colombia: Chronicle Of A Tragedy Foretold?, Camila Bustos

Case Western Reserve Journal of International Law

One of the key challenges stemming from climate change will be climate displacement, as sudden and gradual events disrupt livelihoods and force millions to leave their homes. Despite the existing scholarship’s focus on cross-border movement, the majority of climate displaced people will move internally instead of or before seeking refuge outside their nation’s borders. What obligations do states owe to their citizens when those states have historically not been emitters but have still failed to protect domestic populations from displacement related to environmental disasters and climate change impacts? Through exploring the disaster management framework in Colombia and conducting a case …

Climate Rights In Brazil And The United States: A Convergence In Contrasts, James R. May, Marcelo Buzaglo Dantas, Luciana Bauer

Case Western Reserve Journal of International Law

This Article offers three quick takeaways. First is the utility of rights-based approaches to climate change. As evidence of climate change grows, international and domestic law are rushing to keep pace. ...

Second is the value of borrowing. Courts look and listen to other courts. As the political processes at both domestic and international levels have failed to protect against climate change, whether by action or inaction, a growing number of courts—led by those in Brazil, the United States, and elsewhere—have tried to catalyze more robust and effective government responses. ...

Last is implementation. Without a strategy for operationalizing these …

2023 Klatsky Endowed Lecture In Human Rights: The Forgotten Crime: Forging A Convention For Crimes Against Humanity, Leila Nadya Sadat

Case Western Reserve Journal of International Law

No abstract provided.

The Killing Of Ayman Al-Zawahiri: On Its Legaility And Why The U.N. Should Clarify The "Unable Or Unwilling" Doctrine, Nicholas Abraksia

Case Western Reserve Journal of International Law

No abstract provided.

"Other Inhumane Acts Of A Similar Character Intentionally Causing Great Suffering." Does Ecocide Fit Within The Bounds Of Crimes Against Humanity, Amanda Price

Case Western Reserve Journal of International Law

No abstract provided.

Regulating The "Unregulated": The European Union And United Kingdom Have Put In Place Anti-Money Laundering Directives For The Art Market. Should The United States Follow?, Lauren A. Turner

Case Western Reserve Journal of International Law

No abstract provided.

Masthead, Vol. 56 (2024)

Case Western Reserve Journal of International Law

No abstract provided.

Front Matter, Vol. 56 (2024)

Case Western Reserve Journal of International Law

No abstract provided.