Law Commons^™

The Refugee Burden Of Proof: Legal Gaps And Future Considerations For Climate Migrants, Aedan Raleigh

Pace Law Review

As impacts of climate change become increasingly imminent and devastating, especially for the world’s most vulnerable communities, climate processes and events have forced certain populations to flee their homes. Climate refugees, also called environmental or climate migrants, describes those displaced by environmental disruption; however, international law has yet to delineate how these individuals fit into current refugee law or other areas of immigration assistance. This paper begins by examining current international refugee law, challenges to seeking asylum, and how this applies, or fails to apply, to climate migrants. I will then explore the burden of proof for the principle of …

When It Happens Here: Reproductive Autonomy, Fascism, And Dobbs V. Jackson Women’S Health Organization, Robin Maril

Pace Law Review

Within six months after the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, nineteen states passed laws prohibiting abortion within the first trimester. The most restrictive laws banned abortion entirely, except to save the life of the person giving birth. The Court’s eager abdication of its role in protecting individual liberty under the 14th amendment marks a grim chapter in the life cycle of American democracy. The Dobbs decision, along with the political environment that demanded the repeal of Roe v. Wade, promises to severely limit the role of women in public life. The specter …

Punishing Disclosure And Silencing Victims: How The California Family Law Courts Retraumatize Abused Children By Labeling Them “Alienated”, Carrie Leonetti

Pace Law Review

This Article documents the California family law courts’ poor responses to children’s disclosures of child abuse and neglect, presuming that they are false, minimizing the impact of abuse on children, or engaging in wishful thinking that the abuse will simply cease even though the perpetrator has faced no accountability and taken no steps to reform. It focuses on the detrimental impacts that the pop psychology of “parental alienation” has for child safety when children’s reports of abuse are disbelieved and minimized, particularly when it combines with other fact-finding failures in the courts.

Unpuzzling Complete Preemption: Beneficial National Bank V. Anderson After Two Decades In The Circuit Courts, Anthony Salzetta

Pace Law Review

Beneficial National Bank v. Anderson, 539 U.S. 1 (2003), established the modern complete preemption doctrine—a method of finding removal jurisdiction by way of federal defense. The decision was met immediately with a great degree of confusion and critique by scholars concerned with the doctrine’s theoretical foundation (or lack thereof) and the potential disarray in its prospective execution by lower courts.

This twenty-year retrospective tackles whether clarity has emerged in the lower courts. By analyzing all 164 circuit court cases citing to Beneficial National Bank, I find minimal moments of disagreement between circuits as to application of the doctrine. Courts …

Privacy And National Politics: Fingerprint And Dna Litigation In Japan And The United States Compared, Dongsheng Zang

Pace Law Review

No abstract provided.

Onerous Disabilities And Burdens: An Empirical Study Of The Bar Examination’S Disparate Impact On Applicants From Communities Of Color, Scott Devito, Kelsey Hample, Erin Lain

Pace Law Review

This Article provides the results of the most comprehensive and detailed analysis of the correlation between bar passage and race and ethnicity. It provides the first proof of racially disparate outcomes of the bar exam, both for first-time and ultimate bar passage, across jurisdictions and within law schools. Using data from 63 public law schools, we found that first-time bar examinees from Communities of Color underperform White examinees by, on average, 13.41 percentage points. While the gap closes when looking at ultimate bar passage, there is still a difference, on average, of 9.09 percentage points. The validity of these results …

Exposing The Glass Ceiling And Social Exclusion Of Arabs In The Israeli Labor Market, Neta Nadiv

Pace International Law Review

This article presents the conservative claim that the public sector ought to lead by example to influence social employment patterns, across the public and private sectors. The hypothesis is that affirmative action plans are instrumental in establishing change in employment processes and are additionally essential in advancing the social concept of employment diversity. In the absence of a clear obligation and set requirements for the inclusion of Arab employees in Israel, an under-represented group, it is likely no significant change in employment patterns will be seen. This article details how current affirmative action plans advocate for integration merely on paper …

Determining An Effective Regulatory Framework For Businesses To Report On The Environment, Climate, And Human Rights, Paco Mengual

Pace International Law Review

The objective of this article is to identify the existing dynamics and clarify the reasoning behind reporting on environmental, climate, and human rights information in search of effective and binding frameworks to enhance transparency. To that effect, this article relates the evolution from a corporate sustainable business focus to reporting on environmental social and governance and increasing corporate accountability. It then expands on defining non- financial information and ESG reporting with regards to recent European Union Regulations (SFDR, Taxonomy) as well as the challenges associated with defining sustainable investments. This article aims to compare and understand the various regulatory strategies …

Improving Recommendations From The Un's Universal Periodic Review: A Case Study On Domestic Abuse In The Uk, Alice Storey

Pace International Law Review

Hailed as an international human rights innovation, the UN Human Rights Council’s Universal Periodic Review (“UPR”) is a peer-review mechanism that assesses the protection and promotion of human rights in all 193 UN Member States, including intergovernmental and civil society input. Importantly, within the UPR, other Member States provide recommendations to each state under review on how it can improve human rights on the ground. States can decide to accept or note recommendations and should then go on to implement those that are accepted. The recommendations are a fundamental part of the UPR process, yet they are not always formulated …

Falling Stars And Sinking Ships: How Article Vii Of The Outer Space Treaty Needs Maritime Law, Mckenzie Franck

Pace International Law Review

The urge to go where no man has gone before has led to great leaps in space technology that only seemed real in cinema. As more private companies, such as private asteroid mining companies in China, attempt to take this leap, it has become clear that there are significant gaps in international space law regarding liability with private parties. Within Article VII of the Outer Space Treaty, there is a laid-out structure on how states can be held liable for damages caused by celestial bodies. However, the Outer Space Treaty ignores what happens if a private company causes injuries in …

Racial Impact Assessment In Land Use Planning And Zoning, William West

Pace Environmental Law Review

Racial impact assessments are tools that attempt to predict the effects of actions to help policymakers evaluate the consequences of those actions before their implementation. This article explains the history of race and land use in the United States, the development of racial impact assessments, and the emerging trend of racial impact assessments in land use planning and zoning. The article concludes with an analysis of how racial impact assessments in land use might develop in the future.

The Green Future And The Golden Past: Issues And Approaches Regarding The Sustainability Of Historical Structures And Sites, Steven Moctezuma

Pace Environmental Law Review

This Article illustrates the harmonies and conflict between historic preservation and environmental law in the context of urgently meeting climate change challenges. The Article presents an overarching analysis of the relationship between historic preservation and environmentalism, discerning unifying aspects and modern conflicts through statutory laws and case studies. It begins with detailing the parallel goals between the two causes, drawing on key similarities between the National Historic Preservation Act and the National Environmental Policy Act, the main tools for ensuring federal review for each field, and highlighting sustainable refurbishment as a prime example on achieving both ends with the same …

The Need To Reconceptualize Wild Animals Post-Covid 19: Miscoordination Of Wildlife Regulations In China’S Food Legal Order, Yi Seul Kim

Pace Environmental Law Review

Today, China is one of the largest markets for wild animal trading. Yet, wild animals are in a regulatory grey area. There is an increasing need to revisit how wild animals are simultaneously but differently regulated in the food and wildlife protection regimes. Rarely do attempts to understand these two regimes occur, making this article's analysis of miscoordination in these bodies of law crucial in addressing the hindrance of nationwide food safety improvement efforts.

Virtuous Cycles: The Interaction Of Public And Private Environmental Governance, Elodie O. Currier

Pace Environmental Law Review

The climate crisis has provoked a call for action from all sides. Private governance, public regulation, and individual behavior are all vital pieces of our path toward decarbonization and climate adaptation. Despite this, some scholars and policymakers argue that private environmental governance undermines public efforts to regulate climate harms. This paper draws on existing scholarship in law, policy, and psychology to answer these critiques, proposing four taxonomies of beneficial public-private collaboration on environmental governance. It then applies these models, tracking the shift in U.S. environmental legislation from “polluter pays” to “beneficiary pays” strategies to show a shift from rivalry to …

The End Externalities Manifesto: Restatement, Loose Ends, And Unfinished Business, J.B. Ruhl

Pace Environmental Law Review

Professor J.B. Ruhl observes in his article, “The End Externalities Manifesto: Restatement, Loose Ends, and Unfinished Business,” that Elliott and Esty’s proposal for a rights-centric system of environmental law focuses narrowly on a right to recover compensation for harms to human health caused by pollution. He offers suggestions for implementing that proposal, such as using the concept of ecosystem services to trace how harm to ecosystems can cause harm to human health, and he proposes how Elliott and Esty could extend their rights-centric system to a broader conception of human rights and the environment.

Natural Resource Systems And The Evolution Of Environmental Law, Monika Ehrman

Pace Environmental Law Review

Professor Monika Ehrman provides a pragmatic response to Elliott and Esty’s proposal to end all environmental externalities, which she refers to as an “environmental law moonshot.” She examines the value of transforming environmental law and dreaming big as Elliott and Esty recommend, while discussing the practical considerations of doing so. Her considerations include incentivizing technological advancement, compensating environmentally harmed communities to address systemic issues, and breaking down silos in environmental law.

A Balanced Prescription For More Effective Environmental Regulations, W. Kip Viscusi

Pace Environmental Law Review

Government agencies increasingly base the structure and approval of environmental regulations on a benefit-cost test. For regulations that pass this test, total benefits exceed total costs. Under a benefit-cost framework, the degree of regulatory stringency is set at an economically efficient level whereby the tightness of the regulation is increased up to the point where the incremental benefits equal the incremental costs. Setting regulatory standards to achieve the efficient degree of pollution control does not fully discourage entry into polluting industries, provide compensation to those harmed by pollution, or establish meaningful incentives for effective enforcement. This article proposes that the …

Environmental Law For The 21st Century, E. Donald Elliott, Daniel C. Esty

Pace Environmental Law Review

In this issue, Professors Elliott and Esty expand on their original proposal and respond to critics.2 They apply their perspectives as practitioners, as well as academics, to develop their vision for environmental law in the 21st century. They establish three legal duties that should apply to entities that release potentially harmful materials into the environment. Professors Elliott and Esty contend that such entities have a duty (1) of research and disclosure to assure the public that any environmental releases are not harmful, (2) to minimize harm if they fail to demonstrate the releases are harmless, and (3) to compensate those …

Introduction, Gabriella Mickel, Samantha Blend

Pace Environmental Law Review

No abstract provided.

Repatriating The Buffalo: Nagpra’S Applicability To Yellowstone Bison Management, Saylor Soinski

Pace Environmental Law Review

The American bison—also known as the buffalo—holds great significance to many Native American people and cultures. Although bison populations have grown since their near destruction in the 19th century, the last remaining wild bison are under threat by the National Park Service’s Yellowstone management plan. Native representatives have had only a limited advisory role in creating the plan, and a number of Native individuals and advocacy groups have spoken out against it. This essay explores the possibility of applying the Native American Graves Protection and Repatriation Act to living animals for the first time, categorizing the bison as “objects of …

The Fast Fashion Industry: Formulating The Future Of Environmental Change, Alexa Maratos

Pace Environmental Law Review

This Note focuses on the harmful environmental impacts the fast fashion industry has created, and continues to create, on our planet. In the 1960s, consumer attitude towards clothing shifted drastically when demand for new, disposable clothing skyrocketed. These choices led fashion retailers to give life to the environmentally detrimental breed of “fast fashion.” Moving production from a domestic to an international level, increasing the amount of clothing collections on a yearly basis, and lack of transparency in supply chain are just a few examples of the dangers this industry has created for our planet. The fast fashion industry in particular …

Examining Uranium Mining In The Canyon Mine, Kasha Halbleib

Pace Environmental Law Review

In November 2020, Energy Fuels changed the name of one of its uranium mines from “Canyon Mine” to “Pinyon Plain Mine” in order to put distance between the mine and its historical controversies. However, changing the name does not change the potential harm the mine can cause. Canyon Mine sits fifteen miles from the rim of the Grand Canyon and is built on land sacred to the nearby Havasupai Tribe. The mine stands to not only destroy the health and well-being of the Havasupai people by contaminating their water supply with radioactive elements, but also to destroy the sacred ties …

The Big Chill: Are Public Participation Rights Being Slapp-Ed?, Rachel E. Deming

Pace Environmental Law Review

This article focuses on the Petition Clause of the First Amendment to the U.S. Constitution and addresses a confounding situation caused by Supreme Court precedents that give greater protection to persons who engage in illegal business practices than to citizens who petition their governments. This dichotomy is especially detrimental to environmental protection.

The crux of the conflict lies in which standard courts should use to determine whether the petitioning activity is protected: the subjective Free Speech standard grafted onto Petition Clause activities or the objective standard initially developed by the Supreme Court for petition activities in antitrust cases. The result …

Fatal Fertilizer: Pfas Contamination Of Farmland From Biosolids And Potential Federal Solutions, Molly Carey

Pace Environmental Law Review

Farmers across the country are increasingly discovering devastating levels of per- and poly-fluoroalkyl substances (PFAS) contamination in their soil, water, and farm products from the spread of biosolid fertilizer. Contamination from these “forever chemicals” is causing farmers to close their businesses, lose their incomes and property values, and confront potential ad- verse health effects from toxic exposure. PFAS are not federally regulated, leaving farmers with no options for federal assistance with contamination crises. This article examines federal regulations that govern the spread of biosolids as well as existing and proposed federal regulations of PFAS. To fill in federal regulatory gaps, …

Death By Committee: Reviving Federal Environmental Justice Legislation To Mitigate Disproportionate Impacts On Vulnerable Communities, Sara Babcock

Pace Environmental Law Review

This Note proposes legislation that provides an avenue for protecting the right to a clean and healthy environment by requiring agencies to consider vulnerable communities before initiating large-scale federal projects. Part I lays out the emergence of environmental justice issues in the United States, including its turning point. Part II introduces both successful and failed attempts at federal environmental justice legislation and analyzes why federal environmental justice legislation continuously fails. Part III dis- cusses how executive environmental justice action becomes pointless to the overall progression of environmental justice and examines President Biden’s progress in the first year of his presidency. …

Examining The Role Of Ags In A Just Transition, Bethany Davis Noll, Terri Gerstein

Pace Environmental Law Review

Tackling the climate crisis requires transitioning from fossil fuel to clean energy, which will necessarily have a significant impact on jobs and the economy overall. The impact of this shift has sometimes been feared as a development that will be harmful to workers and the economy. Fossil fuel jobs are seen as good jobs--well-paid jobs with good benefits and protections--while the emerging clean energy industry has not yet uniformly embraced a high-road employment model. But workers’ rights and environmental concerns are not fundamentally incompatible. There are many policies and tools that can be and are being harnessed to bring about …

Green Unionism And Human Rights: Imaginings Beyond The Green New Deal, Chaumtoli Huq

Pace Environmental Law Review

No abstract provided.

Bearing The Torch: A Green New Deal For New York State Agriculture, Jack Hornickel

Pace Environmental Law Review

No abstract provided.

Environmental Justice For Food System Workers: Heat- Illness Prevention Standards As One Step Toward Just Transition, Sarah Matsumoto

Pace Environmental Law Review

The recent dual crises of the COVID-19 pandemic and extreme heat in the Pacific Northwest have brought environmental injustices for food system workers into stark view. These events prompt us to reflect on how and why our existing laws, some of which expressly include environmental justice “tools,” failed to fully protect food system workers during times of crisis, and what changes we might implement to ensure that people employed in food system jobs are safe at their places of work. These events also revealed the need for proactive, prospective changes now before another crisis occurs; indeed, experts believe that global …

Shifting Away From Coal Power: Prioritizing Ratepayers And Communities Vs. Shareholders?, Shanti Gamper-Rabindran

Pace Environmental Law Review

No abstract provided.