Law Commons^™

Comparative Environmental Constitutionalism, Erin Daly, James May

Erin Daly

As more and more countries around the globe are amending their constitutions to recognises environmental rights and duties relating to air, water, the use of natural resources, sustainability, climate change, and more, courts are increasingly engaging with these provisions and developing a common constitutional law of environmental rights. This article examines this growing jurisprudence and surveys the central axes around which debates about environmental constitutionalism revolve. First, we examine whether environmental rights are more suitably advanced at the international level or at the national level of constitutional law, as is increasingly the case; the former offers two alternatives—protecting the environment …

Robinson Township: A Model For Environmental Constitutionalism, Erin Daly, James May

Erin Daly

In Robinson Township v. Commonwealth of Pennsylvania, a plurality of the court held that a controversial law encouraging fracking (“Act 13”) violates the state’s constitutional Environmental Rights Amendment, the provisions of which the court held are “on par” with political rights. The decision highlights the challenges of engaging constitutional environmental provisions but demonstrates that, with sufficient creativity and commitment, meeting these challenges lies well within the bounds of judicial capability and authority. Because courts around the world are increasingly being asked to engage in environmental constitutionalism, and Robinson Township's thorough examination of the issues is instructive, not only for cases …

Constitutional Environmental Rights, Erin Daly, James R. May

Erin Daly

Ten Good Practices In Environmental Constitutionalism: Structure, Text And Justiciability, James May, Erin Daly

Erin Daly

Environmental constitutionalism is a relatively recent phenomenon at the confluence of constitutional law, international law, human rights, and environmental law. It embodies the recognition that the environment is a proper subject for protection in constitutional texts and for vindication by constitutional courts worldwide. This White Paper posits ten “good practices” – those attributes that make effective outcomes more likely, but not assured – in environmental constitutionalism for advancing positive environmental outcomes considering energy, and governance and sustainability. Good practices in environmental constitutionalism can serve as a useful construct for considering the relationship between sustainability, energy and governance. Accordingly, Section A …

Health-Care Law Puts Supreme Court Atop A Slippery Slope, Erin Daly

Erin Daly

Constitutional Protection For Environmental Rights: The Benefits Of Environmental Process, Erin Daly

Erin Daly

More and more constitutions around the world -- from Bangladesh to Bolivia, and from the Philippines to the countries of the EU -- are explicitly protecting environmental rights and the values of a clean and healthy environment. In many instances, environmental rights are recognized not as substantive entitlements (which would allow litigants to sue if the government polluted their rivers or clearcut their forests), but as procedural rights. Examples of procedural rights include imposing on governments the obligation to consult with communities before they take actions that will affect their environment or giving individuals the right to participate in governmental …

Constitutional Environmental Rights Worldwide, James May, Erin Daly

Erin Daly

No abstract provided.

New Directions In Earth Rights, Environmental Rights And Human Rights: Six Facets Of Constitutionally Embedded Environmental Rights Worldwide, James May, Erin Daly

Erin Daly

This essay provides an overview of the worldwide phenomenon of constitutional environmental rights. Since the Stockholm Convention, nearly 60 countries have constitutionally entrenched environmental rights, according their citizens basic rights to environmental quality in one form or another. The list is diverse politically, including countries with civil, common law, Islamic, and other traditions. Some of the more recent of these include Kenya in 2010, Ecuador in 2007, France in 2005, Afghanistan in 2004, and South Africa in 1996. As a result, domestic courts and international tribunals are enforcing constitutionally enshrined environmental rights with growing frequency, reflecting basic human rights to …

Foreword - In Memory Of Robert J. Lipkin, James May, Erin Daly, Robert Hayman

Erin Daly

This is a foreword to a compendium of writings by our lost friend and colleague, Bobby Lipkin, collected within a special issue of the Widener Law Review. Bobby’s constitutionalism beholds and celebrates that "no constitutional truths emanate from either politically unaccountable" courts or from paradigmatically imperfect constitutional legal theories. Rather, Bobby’s constitutionalism was participatory and justificatory: it derives from the Constitution’s republican democracy. The Constitution means what We the People allow it to mean at constitutional inflection points in our nation’s history. We miss Bobby dearly.

Dignity In The Service Of Democracy, Erin Daly

Erin Daly

At a broad level, perhaps the most noticeable trend in Latin American constitutional law is the increasing muscularity of constitutional tribunals. Throughout the region, particularly in South America, tribunals charged with interpreting their country’s constitution are increasingly asserting themselves and inserting themselves into public controversies, from abortion to same sex marriage to the rights of political association. This heightened judicial activity can come at a cost to democracy: typically, the more social issues are decided by unelected and unaccountable judges rather than through a political process, the less the people control the resolution of those issues. The more outcomes are …

Human Dignity In The Roberts Court: A Story Of Inchoate Institutions, Autonomous Individuals, And The Reluctant Recognition Of A Right, Erin Daly

Erin Daly

Throughout its history, the Supreme Court has assumed that dignity is relevant to constitutional interpretation, though it has rarely considered exactly how. In the post-war years, the Court (like its counterparts around the world) found that human dignity underlay many individual rights, and in the 1990s, the Court's federalism jurisprudence found that the dignity of states immunized them from most lawsuits in both state and federal courts. This article examines the Court's past references to dignity and argues that the conception of dignity that is evoked in the federalism cases -- which focus, at root, on the autonomy of the …

Vindicating Fundamental Environmental Rights: Judicial Acceptance Of Constitutionally Entrenched Environmental Rights, James May, Erin Daly

Erin Daly

This article examines the extent to which constitutionally embedded fundamental environmental rights have met the promise of ensuring a right to an adequate environment. It explains these results and suggests ways to neutralize judicial resistance to these emerging constitutional rights. In Part II we explain the prevalence of constitutionally entrenched rights to a quality environment. In Part III, we provide examples of the extent to which courts have enforced these provisions. In Part IV, we examine institutional and structural factors, conceptual disjunctions, and pragmatic considerations that help to explain judicial receptivity to constitutionally entrenched environmental rights. And in Part V …

Garcetti In Delaware: New Limits On Public Employees' Speech, Erin Daly

Erin Daly

In 2006, the Supreme Court decided Garcetti v Ceballos, 547 U.S. 410 (2006), which significantly altered the free speech rights of the more than 18 million Americans who are public employees for federal, state or local government. It revised the test it had formerly used for public employee speech and, in so doing, dramatically diminished the scope of their rights. This has significant implications not only for the individuals involved, but for the public at large, and for the praxis of democracy in America: by limiting what public employees can say about their workplaces, the Court has reduced the amount …

Truth Skepticism: An Inquiry Into The Value Of Truth In Times Of Transition, Erin Daly

Erin Daly

Truth commissions have become so fashionable in times of transition that one can readily recognize what might be called a ‘truth cascade.’ The commissions, and the reports they produce, are reputed to promote many of the goals at the heart of the transitional justice project: helping victims to heal, promoting accountability, drawing a bright line between the past and the present, promoting reconciliation and so forth. And yet, a closer look at the truth-seeking enterprise suggests that it may not be able to deliver on these promises. This article explores both the intrinsic and instrumental reasons why truth commissions may …

Too Many Questions, Too Few Answers: Reconciliation In Transitional Societies, Erin Daly, Jeremy Sarkin

Erin Daly

Understanding reconciliation in times of political transition raises fundamental and ultimately unanswerable questions about the human condition. Talk of reconciliation invariably comes after there has been some gross violation of norms: widespread disappearances, killings, torture, and rape. Reconciliation necessarily conjures its antecedents and forces us to ask how men (and sometimes women) can visit such horrors upon one another. When we look at the face of evil, are we, as many people contend, seeing ourselves, or on the contrary are some people capable of evil in a way that others would never approach? Reconciliation is perhaps deeply compelling, however, because …

Reparations In South Africa: A Cautionary Tale, Erin Daly

Erin Daly

The South African experience with reparations is an important object lesson for any major effort to seek reparations to the descendents of slaves in the United States. However, the aspect of the TRC's reparations plan that has proved most problematic is the recommendation for monetary payments to "victims" of gross human rights abuses. Although emphasizing the importance of reparations to the victims, the TRC failed to ensure that reparations would be paid. Like the victims’ movements in South Africa, the American movement for reparations for victims and descendants of slavery should a range of monetary as well as non-monetary forms …

Between Punitive And Reconstructive Justice: The Gacaca Courts In Rwanda, Erin Daly

Erin Daly

In the aftermath of the 1994 genocide in Rwanda, in which almost a million people were killed by their fellow citizens within 3 months, the country was faced with the colossal task of bringing to justice hundreds of thousands of perpetrators while at the same time trying to rebuild the communities in which both the victims and the perpetrators had lived. This article argues that the regime of gacaca courts, though flawed in many ways, particularly from a western perspective, does nonetheless offer the potential for helping the communities within Rwanda to transform themselves. The form and structure of gacaca …

Transformative Justice: Charting A Path To Reconciliation, Erin Daly

Erin Daly

When nations transition from oppressive and lawless regimes to democratic ones they face myriad challenges. As an anxious public and an impatient world look on, they must create new governing bodies, write new laws and repeal old ones, redefine the balance of private and public power, and organize elections, just to name a few of the daunting tasks. But perhaps the greatest challenge facing these nascent liberal governments is one that receives insufficient attention: if the values of the new government are to take root, the new leaders must also transform the culture in which they operate. This article argues …

Reconsidering Abortion Law: Liberty, Equality And The New Rhetoric Of Planned Parenthood V. Casey, Erin Daly

Erin Daly

Since 1973, the Supreme Court has based the right to abortion on a right to privacy implicit in the Due Process Clauses of the Fifth and Fourteenth Amendments. Despite forceful and increasingly frequent arguments that the harm caused by restrictive abortion laws deny equal protection, at least as much as they impinge on personal privacy, the Court has steadfastly refused to consider abortion in this light. In Planned Parenthood of Southeastern Pennsylvania v. Casey, sowed the seeds for a more nuanced understanding of both liberty and equality. Although the lead opinion is so fractured that, as the maze of concurrences …

The Incremental Harm Doctrine: Is There Life After Masson?, Erin Daly

Erin Daly

A defamation is a statement that "tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Harm to reputation is the linchpin of American libel law. The incremental harm doctrine applies in libel litigation where the challenged statement causes no significant damage to the plaintiff's reputation beyond the harm caused by the remainder of the publication. If the defendant can show that the publication would have had exactly the same effect on the plaintiff's reputation had the challenged portion been excised, …