Law Commons^™

Here's The Kind Of Justice Trump, Hunter Biden Receive, Stephen Henderson

Other Faculty Publications

Donald Trump. Guilty. Hunter Biden. Underway. This summer, we can’t avoid high-profile criminal prosecutions, nor talking heads telling us every which way to think about them. Among that cacophony, it is hard to be heard, or even to hear oneself think. So I write to a particular group of Americans, those whose reaction is this: “Enough.” ...

Compagni V. Klemesrud : Brief Of Appellant, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

ON APPEAL FROM THE FOURTH JUDICIAL DISTRICT COURT THE HONORABLE ADAM MOW

Kristin A. VanOrman Jessica J. Johnston Scarlet R. Smith STRONG & HANNI Attorneys for Defendants/Appellees

Jefferson W. Gross (#8339) Seamus W. Appel (#17783) GROSS & ROONEY Attorneys for Plaintiff/Appellant

Facing Up To Internet Giants, Shai Dothan

Duke Journal of Comparative & International Law

Mancur Olson claimed that concentrated interests win against diffuse interests even in advanced democracies. Multinational companies, for example, work well in unison to suit their interests. The rest of the public is not motivated or informed enough to resist them. In contrast, other scholars argued that diffuse interests may be able to fight back, but only when certain conditions prevail. One of the conditions for the success of diffuse interests is the intervention of national and international courts. Courts are able to fix problems affecting diffuse interests. Courts can also indirectly empower diffuse interests by initiating deliberation to inform the …

International Human Rights In Asian Constitutions, Ngoc Son Bui

Duke Journal of Comparative & International Law

International law is integrated into national constitutions across the world. Particularly, the convergence of national constitutions with international human rights (IHR) law has been a global trend. Asia has been underexplored in the global scholarship on constitutional convergence. This Article seeks to make both theoretical and empirical contributions by exploring three models of convergence with IHR law in seven Asian constitutions: convergence impelled by international inducement in post-war and post-conflict states (Japan and Cambodia), convergence propelled by the domestic precommitment of new democracies (South Korea and Indonesia), and convergence compelled by the international socialization of the socialist states (China, Laos, …

The Right To Resistance And The Western Sahara: A Twail Analysis Of The International Legal Order And Its Constraints On Decolonization, Christina Wrapp

Duke Journal of Comparative & International Law

"The Western Sahara is often called the "Last Colony in the World," in reference to its anachronistic status as a territory deemed to have self-determination by the United Nations and ICJ, but still under the rule of another country. Scholarship on the Western Sahara tends to concentrate on the protracted stalemate in their war of independence against Morocco, highlighting the roles of several individual actors, such as France, the United States, the United Nations, and the Polisario, and how these actors create a particular structure to the conflict. This Note focuses on the role of the International Legal Order, as …

Brief Of Amici Curiae Professors William Araiza, Jeffrey Lubbers, And Peter M. Shane In Support Of Defendants' Opposition To Plaintiff's Motion To Stay Effective Date And For Preliminary Injunction, Jeffrey Lubbers, William Araiza, Peter M. Shane

Amicus Briefs & Court Filings

Amici are law professors who teach and write in the fields of administrative law and statutory interpretation. Amicus William Araiza is the Stanley A. August Professor of Law at Brooklyn Law School. Amicus Jeffrey Lubbers is Professor of Practice in Administrative Law at American University, Washington College of Law. Amicus Peter M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law Emeritus at Ohio State University, Moritz College of Law.

Amici have a strong interest in the sound development of administrative law in the federal courts, and are submitting this brief because of the importance …

They “Eyeballed” The River And Built The Dam: Lessons From The Hidrotambo Dam Flood Disaster To Guide Improvements In Environmental Impact Assessment Law In Ecuador, Rachel E. Conrad

Pace International Law Review

Ecuador is a trailblazer in human and environmental rights. The country enshrined in its 2008 Constitution the human right to water and the right to live in a healthy and ecologically balanced environment. It was also the first country in the world to recognize nature as a subject of rights in and of itself. However, the Ecuadorian legislature has failed to fully recognize these rights in the country’s civil law codes. This article explores the shortcomings of Ecuadorian law on Environmental Impact Assessments (EIAs) and proposes modifications to better ensure the protection of international and constitutional human and nature’s rights …

The Right To Have Rights Or The Right To Have Life? An Assessment Of Proactive Citizenship-Stripping To Fulfill The State Duty Of Non-Refoulment, Omar Khoury

Pace International Law Review

Especially since the collapse of the Islamic State Caliphate in 2019, a fierce debate has arisen in international legal policy and within domestic governments about what to do with citizens who have committed acts of terror abroad. While repatriation and extradition are possible solutions, many States have refused to repatriate some citizens back and have revoked their nationalities such that those individuals are unable to return to their citizenship-country to face prosecution and/or punishment. Citizenship-stripping, however, may not always be legal. But if a State contends instead that it must deprive the citizen of nationality because, in being repatriated back …

International Criminal Law And The Role Of Narrative In The War In Ukraine, Jonathan Hafetz

Pace International Law Review

This article examines the multiple ways that international criminal law (ICL)—the body of international law that seeks to impose criminal responsibility on individuals for international crimes—has impacted the conflict in Ukraine. Most violations remain unpunished, and ICL’s legal accountability mechanisms continue to face significant obstacles. But even absent prosecutions and trials, which remain contingent on an array of shifting factors, ICL has affected the Ukraine conflict in multiple ways.

The article focuses on how ICL has helped shape narratives about the war in Ukraine. In doing so, the article cautions against a strict law/politics dichotomy and instead focuses on the …

A Global Puzzle: Integrating Iot Jurisprudential Approaches, Colin Savino

Pace International Law Review

While devices in the Internet of Things (hereinafter “IoT”) such as smart appliances, smart watches, and pacemakers are intended to make life easier and safer, they sometimes complicate users’ lives with system failures and expose them to new risks instead. Users suffer the risks stemming from hastily developed cybersecurity in IoT devices, sometimes with serious consequences and without recourse against manufacturers or cybercriminals. Cybercriminals’ ability to exploit gaps in cybersecurity from anywhere makes the IoT especially risk-prone to transnational crime and may make tort claims against multinational manufacturers tenuous on issues of causation and actual harm suffered. Most problematically, the …

40 Years After The Moratorium On Commercial Whaling: Assessing The Competence Of The International Whaling Commission To Confront Critical Threats To Cetaceans, Chris Wold

Pace International Law Review

With Japan’s withdrawal from the International Convention for the Regulation of Whaling (ICRW), no member of the International Whaling Commission (IWC) hunts whales commercially except by objection or reservation, thus intensifying the debate over what the IWC should do and what it may do. For decades, some IWC members have questioned the mandate of the IWC to manage small cetaceans, regulate whaling in coastal State exclusive economic zones, and make recommendations concerning entanglement, bycatch, and other threats to whale conservation. An analysis of the ordinary meaning of the ICRW and the practice of the IWC shows that the IWC has …

Public Insurance As A Lever For Semi-Managed Climate Retreat, Albert C. Lin

Georgia Law Review

Private insurers are declining to issue or renew homeowner policies in California, Colorado, Florida, and Louisiana following massive payouts due to hurricane and wildfire damage in recent years. As climate change worsens, more private insurers will withdraw from property insurance markets. Governments, particularly at the state level, will likely expand their insurance programs to fill the gap. Just as the federal government now underwrites most flood insurance policies, public insurers will come to dominate the fire and wind insurance markets. Property insurance can generate price signals reflecting the risks of living in climate-vulnerable areas. However, public insurance programs often prioritize …

The Health And Human Rights Impact Assessment: The Preeminent Value Of Equity, Lawrence O. Gostin, Eric A. Friedman

Georgetown Law Faculty Publications and Other Works

The Health and Human Rights Journal launched 30 years ago at the dawn of the era of health and human rights. Health and human rights were more often viewed as being in tension than in harmony, and there was little guidance on the right to health itself. With the unabashed discrimination against people living with HIV/AIDS in the name of public health at the forefront of our minds, Jonathan Mann and one of us (LOG) sought to provide practical guidance on when and how human rights could be limited in the name of public health, developing the first health and …

Empowering Cca Leadership: Overcoming Legal And Policy Barriers To A 24/7 Renewable Energy Full Decarbonization Strategy, Doug Karpa

San Diego Journal of Climate & Energy Law

The public itself is the best guarantor of its own interests. Thus, the public utility regulatory oversight model that has dominated the electricity sector for over 100 years must be retooled for a modern, more complex era into one that allows greater democratic accountability to protect the public interest affordably. Given the dangerous urgency of the climate crisis, the fate of California and beyond may well depend on California leading by creating a modern governance structure to match its cutting-edge electricity sector.

Ndls Communicator: Week Of 06.10.24, Notre Dame Law School

NDLS Communicator

The Latest News

• Notre Dame Law School expands partnership with the Ukrainian Catholic University
• U.S. Senate confirms ND Law School alum Edward S. Kiel as federal judge
• Notre Dame Law School's ACS Chapter Wins National Programming Award
• Zachary Damir ‘24 J.D. wins 2024 Smith-Doheny Legal Ethics Writing Competition

Faculty Briefs

• Emily Bremer presented her draft article, "Vacatur is Not a Remedy," at the Conference on Executive-Judicial Relations hosted by the Center for Revitalizing American Institutions (RAI), Hoover Institution, Stanford University.
• Derek Muller has authored "2020’s ‘fake elector’ schemes will be harder to try in 2024 – but not impossible" for …

Now You Have It, Now You Don’T: Taxing Crypto, Part 2, Reuven S. Avi-Yonah

Articles

In “Coinbase: Are Cryptoassets Securities?” Tax Notes contributing editor Lee A. Sheppard highlights a recent district court decision indicating that some forms of cryptoassets are securities for securities law purposes and therefore fall under the jurisdiction of the SEC:

There are potential tax ramifications. Some, indeed many, cryptoassets could be securities under the securities law. That means that losses can’t be recognized on wash sales (section 1091). The IRS should issue a notice stating that many cryptoassets other than bitcoin are securities, so losses on wash sales can’t be recognized. A notice would not be a heavy lift. The taxpayers …

Empowering Family Forestland Owners To Reduce Wildfire Risk, Tom Lininger

Georgia Law Review

Wildfire risk is growing in the forested portion of the Wildland-Urban Interface, especially in the Western United States. Some commentators have suggested that the time has come for measures that would reduce the human presence in this area. In certain circumstances, however, family forestland owners have a salutary effect on forest resiliency. The attempt to exclude family forestland owners would create more problems than it would solve. A better strategy would be to assist family forestland owners in fireproofing their residences and improving the health of their forests.

Resilient Forest Management And Climate Change, Blake Hudson

Georgia Law Review

Climate change threatens the very existence of the world’s forests as temperature increases outpace forests’ ability to adapt. Society must implement adaptation policies aimed at making forests more resilient. This Article describes how we can better manage for more resilient forests by first detailing some of the scientific and policy complexity affecting our ability to do so. The Article then details the primary adaptation solutions for creating greater forest resiliency (reducing fire risk and integrating more climate resilient species into forests), some of the impediments to implementing those solutions (federalism, geographic and ecological differences in forests, and scientific unknowns), and …

V. 15, 2024 Masthead

San Diego Journal of Climate & Energy Law

No abstract provided.

Climate Risk, Insurance Retreat, And State Response, Mark Nevitt, Michael Pappas

Georgia Law Review

Climate change is fundamentally destabilizing the private insurance industry, with many high-profile insurance companies exiting states in the face of catastrophic, climateinduced risk. This rapid “insurance retreat” represents a major market signal in response to climate-exacerbated risks. Private businesses are making actuarial decisions, assessing that some locations are just too vulnerable to insure. At the same time, this insurance retreat also poses a policy challenge for states as they react to the mounting insurance gaps left by exiting private insurers. This Article analyzes insurance retreat, its attendant policy challenges, and the lessons that can be drawn from state responses. It …

Table Of Contents

Georgia Law Review

No abstract provided.

Farmland And Forestland In An Era Of Climate Change: Hurricane Michael And Opportunities To Advance Rural Resilience, John Travis Marshall

Georgia Law Review

Catastrophic disasters fundamentally destabilize and reshape communities. They often cause loss of life and invariably inflict extensive property damage. Disabled individuals, the elderly, chronically ill persons, and families struggling to make ends meet are almost always left more vulnerable. Affected communities frequently experience population loss, a declining property tax base, and economic contraction. Over the last three decades, a string of major disasters has focused scholarly attention on their far-reaching impacts on large cities. Storms and earthquakes have reshaped urban landscapes and forced communities to reckon with their futures from San Francisco to Northridge, Houston to New Orleans, and Miami …

Building Climate Resilience With Local Tools, Shelley Saxer

Georgia Law Review

The first Earth Day on April 22, 1970, celebrated the grassroots environmental movement that began in the ‘60s and early ‘70s and ushered in the creation of a new legal framework for controlling pollution and addressing environmental concerns in the United States. However, more than fifty years later, some experts fear that the environmental progress achieved during the ‘70s and ‘80s has begun to stall as the United States and other nations experience broad economic hardship and must shift their focus to more immediate concerns. Therefore, even as the damaging effects of climate change threaten communities across the globe, the …

The Role Of Clean Hydrogen In The U.S. Transition To A Net-Zero-Carbon Economy, Miranda Barfield

San Diego Journal of Climate & Energy Law

The goal of this Article is threefold: first, to explain why clean hydrogen has become a key part of the United States’ decarbonization plans in recent years; next, to describe the existing and forthcoming U.S. policies and programs designed to incentivize and enable the growth of the domestic clean hydrogen market; and finally, to examine whether the U.S. is deploying the correct legal tools to successfully unlock the decarbonization potential of the clean hydrogen industry.

Section II explains the decarbonization potential of hydrogen, including an overview of U.S. emissions today and a background discussion of what hydrogen is, how it …

Repurposing Fossil Infrastructure, Heather E. Payne

San Diego Journal of Climate & Energy Law

Our built environment includes infrastructure dedicated to fossil fuels: wells, pipelines, compressor stations, refineries, fossil gas storage caverns, gas stations. One challenge as we decarbonize is how we will repurpose these locations and networks as we move toward a decarbonized world.

This Article imagines the outcomes for three distinct pieces of our fossil fuel infrastructure and how each could be a part of our decarbonized future. First, given the challenges seen building long distance transmission, local sources of renewable electricity will become even more critical. In many places, the most plentiful of these is rooftop solar, but it faces a …

A Major Question For Antipollution Policy: Artificial Intelligence Regulation In The Wake Of West Virginia V. E.P.A., David Collins

San Diego Journal of Climate & Energy Law

This Comment proceeds in three parts. Part I traces the development of the Major Questions Doctrine. Under the “old” doctrine, the key determinations that an agency’s ruling was major were (1) policy novelty and (2) policy economic impact. After using these factors to find an agency’s rule to be major, the Court would then independently interpret the statute the agency claimed authority from. The “new” Major Questions Doctrine departs from this previous rationale. Although the Court still considers (1) policy novelty, under this scheme, the Court further assesses (2) the political significance or controversial nature of policy in question and …

Climate Regulation And Co-Benefits: The Reality Of Co-Benefits In Climate Policy And The Reality We Face Without Them, Riley Jacobs

San Diego Journal of Climate & Energy Law

The United States has long required administrative agencies to conduct Cost-Benefit Analyses (“CBA”) in their rulemaking. By conducting CBA, agencies “show their work” to Congress, courts, and constituencies as to why the agency wishes to regulate a certain way and what it would cost to do so.

This Article will focus on co-benefits, an increasingly divisive component of CBA. Co-benefits, or benefits occurring secondary to the targeted purpose of statutory authority, assist agencies like the Environmental Protection Agency (“EPA”) in painting a holistic picture of everything the public has to gain from a rule’s passage. In recognizing that value, the …

Thriving In Theory, Missing The Mark: U.S. Organic Farming IndustryʼS Systemic Malfunctions And How Danish Organic Farming Policy Could Help Solve These Issues, Bailey Webster

San Diego Journal of Climate & Energy Law

Section one of this Article explains the overall framework of the U.S. organic farming industry, including certification, labeling, education, and funding. Section two explains the background and structure of Danish organic farming, administered by the Ministry of Food, Agriculture, and Fisheries of Denmark. Section three addresses and analyzes current issues afflicting the U.S. organic farming industry. Section four explores a prominent organic farming case, Center for Food Safety v. Perdue. Additionally, this Article details the comparison between the U.S. and Danish organic farming policies that are most relevant to issues in the U.S. industry. Lastly, and most importantly, this …

Natural Gas Or National Gas–Would A Statewide Natural Gas Ban In New Development Violate The Commerce Clause?, Madison D. Montague

San Diego Journal of Climate & Energy Law

This Article analyzes: (1) the contours of a natural gas installation ban, how municipalities have incorporated these bans, and how the state government may pass a statewide ban; (2) the likelihood that these bans would place a substantial burden on interstate commerce; (3) who, if anyone, would have standing to sue to end these bans; and (4) whether anyone could prevail in an action against a ban on new gas development.

Digital Barter Taxes Are Good Tax Policy, Young Ran (Christine) Kim, Darien Shanske

Articles

This short essay, aimed at state legislators, argues that digital barter taxes are good tax policy.