Air and Space Law Commons^™

Remaining Human: How The Airline Deregulation Act Shields Commercial Air Carriers From Legal Liability For Mishandling Human Remains, Abigail A. Lahvis

Journal of Air Law and Commerce

The Airline Deregulation Act of 1978 (ADA) deregulated the domestic airline industry. Specifically, the ADA ended the dual administrative system, which allowed the states to regulate intrastate airfare and permitted the federal government’s Civil Aeronautics Board (CAB) to regulate interstate airfare. The Act also included a broad preemption clause to prevent the states from reimposing economic regulations on air travel. The preemption clause prohibits a “State . . . [from] enact[ing] or enforc[ing] any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes, or services of any air carrier.”

The Supreme …

Mining The Milky Way: How To Bring America’S Extraterrestrial Excursions Back Into Compliance With International Obligations, Braden N. Anderson

Journal of Air Law and Commerce

In November of 2015, the 114th United States Congress enacted the Commercial Space Launch Competitiveness Act of 2015 (Space Act) and, in turn, thrusted the door to outer space mining wide open for Americans. Unfortunately, while the Space Act provided a solution for corporations, it created a dilemma for the United States. As currently enacted, the Space Act directly conflicts with the world’s foundational and most basic framework for international space law: The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (Outer Space Treaty).

To …

Personal Jurisdiction On The Move, Kirsten M. Castañeda

Journal of Air Law and Commerce

In Ford Motor Co. v. Montana Eighth Judicial District Court, the U.S. Supreme Court clarified the standards for establishing specific personal jurisdiction over a nonresident defendant in federal court. The Court rejected previous interpretations of specific jurisdiction that required a causal connection between the defendant’s forum contacts and the plaintiff’s alleged facts. This reorientation has had a ripple effect on specific personal jurisdiction inquiries in federal and state courts across the nation, including courts in the Fifth Circuit and Texas. This Article passes through the basics of general jurisdiction en route to a more leisurely exploration of the clarified …

Put Away The Duct Tape And Bring Out The Prosecution: Combating The Unruly Passenger Crisis By Improving Federal Enforcement Procedures, Michael Mccluskey

Journal of Air Law and Commerce

Unruly passengers aboard commercial flights have become a critical issue for consumer airliners, federal agencies, and other key commercial aviation stakeholders. In the past few years, unruly passenger confrontations rose exponentially. Through a patchwork of Federal Aviation Administration (FAA) regulatory fines, civil penalties, and criminal sanctions, there are enforcement measures available to combat unruly passengers. However, this complex mix of regulations and statutes fails to clearly outline which agencies will be responsible for which types of conduct and what the appropriate penalty will be. Not only does this tangle of enforcement measures confuse and hinder prosecution of unruly passengers, it …

The (Pfas)T And The Furious: Applying Hazardous Waste Management Frameworks To The Global Presence Of Pfas, Maggie Clark

Journal of Air Law and Commerce

International treaties governing transboundary hazardous waste are a result of the theory of sustainable development. These conventions have developed over several decades but still lack authority over one of the biggest waste exporters: the United States. As forever chemicals like GenX become a spotlight for future waste regulation, can these conventions project a framework to apply to the currently unregulated chemical that predominantly travels across the Atlantic Ocean between the Netherlands and the United States? This Article seeks to apply various transboundary waste international laws to the market for GenX, identify problems, and propose solutions.

Customary International Law As A Vessel For Global Accord: The Case Of Customary Rules-Of- The-Road For Governing The Orbital Highways Of Earth, Hjalte Osborn Frandsen

Journal of Air Law and Commerce

In a time where the international community seems unable or unwilling to commit to binding instruments to solve global-governance issues, ranging from climate to cybercrime, increased reliance on customary norms presents a path forward. Using the case of space traffic, this author investigates if and how customary international law can emerge to govern complex transnational issues. The traditional approach to international custom is augmented with perspectives from the broader field of social science to accord for the influence of private actors and technological development on the formation of customary law.

Commercialization of the space sector has unleashed a tremendous proliferation …

Wise Up! Why It’S Time To Dump Reed V. Wiser And Get Real About Third-Party Actions, David Cluxton

Journal of Air Law and Commerce

The Warsaw Convention of 1929 and the Montreal Convention of 1999 (Conventions) are international treaties governing the liability of the air carrier for damage arising during international carriage by air, e.g., passenger death or bodily injury. The foundation for the applicability of these Conventions is the contract of carriage. However, given the nature of the air transport operations and their technological complexity, a given accident can result from several causes attributable to different parties. The plaintiff (e.g., the passenger) may have the option of suing, not only the carrier based on the contract of carriage, but, alternatively, an airframe or …

Airport Noise As Public Bads: Comparative Remarks On Legal Challenges In Resolving The Neighbor Conflict Between The Airport And Landowners, Magdalena Habdas

Journal of Air Law and Commerce

Incompatible uses of land create neighbor conflicts connected with the notions of civil law immissions (non-trespassory invasions) or common law nuisance. These traditional instruments of resolving the neighbor conflict have their limitations when pollution (such as noise pollution produced by aviation) interferes with the use and enjoyment of land that affects numerous landowners. Lawmakers seek to resolve the neighbor conflict with public intervention in such circumstances. Instead of relying on the market, the state allocates entitlements, indicates how parties must behave, and prescribes the conditions under which lawmakers should conclude an agreement.

Interestingly, although the nuisance caused by airport noise …

Understanding An Outlier: The U.S. System Of Airport Governance And Economic Regulation, Robert A. Hazel

Journal of Air Law and Commerce

Unlike airports in many other countries which have been corporatized or privatized, nearly all U.S. airports continue to be operated by the public sector. They are subject to a system of economic regulation that provides little incentive to control costs or allocate capital efficiently. Yet, despite its apparent shortcomings, the current system has persisted over several decades. This Article explains the persistence of the current U.S. system of airport economic regulation based on price theory, regulatory economics, and public choice principles. It offers supporting empirical evidence for this equilibrium and identifies factors that might lead to a different outcome.

Elected …

Public Safety Concerns And Meeting The Dudenhoeffer Pleading Standard, Douglass G. Brown

Journal of Air Law and Commerce

This Comment analyzes the recent Employee Retirement Income Security Act (ERISA) stock drop cases against The Boeing Company (Boeing) and reviews the underlying pleading standard in these cases that the Supreme Court set forth in Fifth Third Bancorp v. Dudenhoeffer. With the tremendous amount of assets in retirement plans—and specifically in employee stock ownership plans—litigation under ERISA can be extremely costly to employers, especially those in the airline industry that offer these plans. The current pleading standard for stock drop cases has become a practically insurmountable barrier to plaintiffs, even when their employers know they are negligently creating products …

Back To Air In Disarray?: Disparity In Practices And Interpretations On Adizs Disrupting The Safety Of Civil Aviation, Sanghoon Lee

Journal of Air Law and Commerce

The interconnectivity of civil aviation has been long praised with the success of the International Civil Aviation Organization (ICAO) in harmonizing navigation standards and procedures, along with the utilization of Flight Information Regions (FIRs). However, continuing geopolitical tensions with different implementations of Air Defense Identification Zones (ADIZs) have belittled the technical achievement. Among different State practices, some ADIZs have expanded beyond territorial airspace and even overlapped with other FIRs, requiring overflying air- craft to submit flight plans and abide by procedures separate or in addition to air traffic control obligations.

The purpose of this Article is to review the ongoing …

Predicting Bearing Fault In The Drone Freight Industry: Legal Liability In Australia, Prue Vines, Anthony Song, Matthew Priestley, Elias Aboutanios

Journal of Air Law and Commerce

Many people are now aware of drones or remotely piloted aircraft (RPAs), and several others have predicted the significant impacts that drones will bring across society. Today, there is an expectation that drones will play a pivotal role in industries such as surveillance, security, surveying, construction, and freight transport. However, in all these cases, whenever a drone is flying over a populated area, it poses a danger to people or things on the ground. Perhaps the sector where the greatest risk of injury to the everyday person exists is the drone delivery industry. The drone freight industry is proliferating fast, …

Front Matter

Journal of Air Law and Commerce

No abstract provided.

Private Law Aspects Of Suborbital Flights: Second- And Third-Party Liability And Insurance, Tanja Masson-Zwaan

Journal of Air Law and Commerce

Two companies carried private citizens to the edge of space in July 2021. Although suborbital flights have so far taken place within one jurisdiction—they start and end in the same state, do not pass through foreign airspace, or meet both criteria—they will become international when transportation between two points in different states via outer space becomes a reality. International law is ambiguous about the regulation of suborbital flights; neither international air law nor international space law explicitly apply. It is also unclear which organization or institution should be mandated with the international regulation of suborbital flights. The legal uncertainties must …

Pulsed Nuclear Space Propulsion And International Law: Some Preliminary, Glenn Reynolds, Leigh Outten

Journal of Air Law and Commerce

Pulsed Nuclear Space Propulsion, researched in the 1950s and 1960s by such eminent physicists as Freeman Dyson, Ted Taylor, Theodore von Karman, and Hans Bethe, involves propelling large spacecraft using compact nuclear explosions from specialized atomic devices. This technology is often known by the name of the Air Force project in which it was developed: Orion. It has long been believed that the 1962 Limited Test Ban Treaty prohibits the use of nuclear pulse space propulsion. After a survey of the Orion project and its results and a review of the applicable law, this Article concludes that language in the …

Vertiports: Ready For Take-Off … And Landing, Benjamyn Scott

Journal of Air Law and Commerce

While aviation has been used in transportation for decades, the use of vertical takeoff and landing (VTOL) aircraft for large-scale, low-cost, green, sustainable, and integrated mobility in populated areas is a new phenomenon. Despite the importance of ground infrastructure for embarkation and disembarkation of passengers, cargo, and mail, questions remain on how these “vertiports” are or should be regulated and how they will relate to existing regulated ground infrastructure such as aerodromes, airports, and heliports. Therefore, several questions arise: what is a vertiport; how do vertiports relate to other aviation infrastructure; what are the legal implications of having different terms; …

Cabotage And Deregulatory Anomalies, Timothy M. Ravich

Journal of Air Law and Commerce

The strangest airline route in America is between Pago Pago and the Manu’a Islands in American Samoa. No U.S. carrier serves this “domestic” route. Therefore, it is the only route between two points in the United States (or, more accurately, its territories) that is regularly scheduled service by a non-U.S.-flagged airline. The Pago Pago–Manu’a Islands flight is thus an unprecedented and unique exception to a federal law that permits only U.S. carriers operating U.S.-registered aircraft to fly between U.S. states and territories. Under existing U.S. cabotage policies, moreover, states and U.S. territories are divested of all power to manage …

At The Crossroads Between Bankruptcy And Aviation: The Proposed Bankruptcy Venue Reform And The Imperilment Of Foreign Airlines’ Availment To U.S. Bankruptcy Courts Under Chapter 11, Pauline Hodencq

Journal of Air Law and Commerce

The COVID-19 pandemic has wreaked havoc on several of the nation’s industries, aviation being no stranger given the financial difficulties, flight cancellations, and health mandates the sector consequently faced. Despite concerns that a wave of bankruptcy filings would submerge U.S. bankruptcy courts, the domestic need for restructuring did not arise as predicted, the main reason being the federal assistance provided to enterprises in peril. On the contrary, foreign debtor airlines were the ones to avail themselves of the experience and efficiency of magnet districts for restructuring under Chapter 11 of the Bankruptcy Code. Simultaneously, large domestic corporations sought the assistance …

Regulating Science Fiction: The Regulatory Deficiencies In A Rapidly Growing Commercial Space Industry, H. Austin Simpson

Journal of Air Law and Commerce

This Comment explores the deficiencies of the legal framework governing commercial space with the advent of satellite mega-constellations. The scope and size of these so-called constellations are completely unlike anything the space industry has contemplated since the first rocket was launched into orbit. Moreover, these constellations are an extremely new phenomenon—the prime movers in the industry are just beginning to create these massive man-made wonders in space. As such, the legal framework was designed around space operations that are much smaller in scope. That framework has struggled to keep pace with the rapidly growing commercial space industry generally and the …

Front Matter

Journal of Air Law and Commerce

No abstract provided.

Front Matter

Journal of Air Law and Commerce

No abstract provided.

Will Harmful Interference Bring Gps Down?, Paul B. Larsen

Journal of Air Law and Commerce

No abstract provided.

Book Review: Introduction To Aviation Law By Timothy M. Ravich, Paul S. Dempsey

Journal of Air Law and Commerce

No abstract provided.

Turbulence Ahead: Why The First Domestic Aircraft Carbon Emissions Regulations Are A Danger To Climate Protection, Taylor Williams

Journal of Air Law and Commerce

Reducing emission levels from transportation is one of the most vital steps in combating climate change, but domestic aircraft were not subject to this kind of regulation until recently. In July 2020, the Environmental Protection Agency (EPA) proposed the first carbon emission standards for airplanes. While this regulatory move appears to be progress for protecting the environment, it locked in current emissions levels for years to come. The overwhelming majority of aircraft models are already 6% more efficient than the new standard requires them to be. The rule highlights the tension between industry considerations and environmental justice.

This Comment seeks …

Tribute To Charles Alford Tarpley, Don G. Rushing

Journal of Air Law and Commerce

No abstract provided.

Hello Don, This Is Charles, Donald R. Andersen

Journal of Air Law and Commerce

No abstract provided.

A Tribute To Charles A. Tarpley: Mentor, Friend, Aviator, Lawyer, And Gentle Man, James D. Struble

Journal of Air Law and Commerce

No abstract provided.

Profit Or Safety: Where Is Outer Space Headed?, Paul B. Larsen

Journal of Air Law and Commerce

The space powers (the U.S., the European Space Agency (ESA), China, and Russia) are now preparing national space traffic regimes with insufficient regard for the Outer Space Treaty’s (OST) agreed “Principles Governing the Activities of States in Exploration and Use of Outer Space.” The rapidly growing traffic of satellites, resulting in space debris, and the scarcity of radio frequencies and related orbits create obvious dangerous situations. States, including the U.S., agreed in the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS) on twenty-one Guidelines for Long-Term Sustainability of Space, some of which relate to space traffic management …

Using The Artemis Accords To Build Customary International Law: A Vision For A U.S.-Centric Good Governance Regime In Outer Space, Walker A. Smith

Journal of Air Law and Commerce

International space law is a relatively undeveloped field primarily occupied by the 1967 Outer Space Treaty (Treaty). This Treaty, while long on general principles, is short on details. With the United States’ recent push to return to the Moon by 2024 and send humans to Mars as soon as practicable after that, the time has come to fill in the gaps of the Outer Space Treaty out of necessity. The U.S. seeks to do this through the Artemis Accords (the Accords).

This Comment argues that the U.S. should use the Accords to develop a U.S.-centric legal and good governance regime …

“A Defendant’S Paradise”: Failings Of The Brooke Group Test In The Airline And E-Commerce Industries, Kaitlyn Thorson

Journal of Air Law and Commerce

No abstract provided.