Air and Space Law Commons^™

Front Matter

Journal of Air Law and Commerce

No abstract provided.

Reframe: A New Interpretive Framework For Non-Governmental Entity Responsibility In Outer Space, Steven E. Bartz

Journal of Air Law and Commerce

The mainstream interpretation of State responsibility for Non-Governmental Entities (NGEs) with respect to their commercial operations in outer space may hinder the further development of the commercial space industry. Specifically, that interpretation produces broad responsibility for nation-states (States) under international law and derivative consequences for States and NGEs, but the international space community might avoid the otherwise harsh practical consequences that are likely to hamper the continued growth of commercial activities by NGEs in outer space by reexamining and reinterpreting a few aspects of existing law. This article (1) examines mainstream interpretations of State responsibility for NGEs with respect to …

Space Agriculture, Biotechnology, And Terraforming: Rethinking The Paradigm Of Harmful Contamination, Francesca Giannoni-Crystal

Journal of Air Law and Commerce

As humanity transitions from sporadic exploratory space missions to permanent settlements on celestial bodies (like the Moon or Mars), agriculture biotechnology, and, potentially, terraforming projects will be essential for establishing self-sustaining settlements.

These activities raise critical issues concerning the interpretation of the principle of harmful contamination under Article IX of the Outer Space Treaty (OST) and its implementation through the Committee on Space Research’s Policy on Planetary Protection (COSPAR Policy) referred together in this article as the “Planetary Protection Framework,” which is primarily oriented toward exploration with scientific integrity rather than permanent habitation.

The challenge lies in the fact that …

The Heavy Odds For A Weaponized And Lawless Outer Space, Rob Frieden

Journal of Air Law and Commerce

Just as space commerce appears to have reached a critical mass, competing national government interests can thwart progress with strategies and tactics that increase market risk, volatility, and uncertainty. Despite universal support for a treaty-level commitment to pursue only peaceful activities, for the benefit of everyone, unilateral actions by the governments of China, Russia, and the United States have the potential to disrupt markets and render space a new theater of warfare. These nations appear disinclined to embrace the unenforceable goals contained in five international treaties governing activities in outer space.

So-called Great Power Competition has generated high stakes rivalry …

Prepare For Landing: The Dot’S Authority To Regulate Unfair And Deceptive Practices Amidst The Supreme Court’S Elimination Of Chevron Deference, Ali Garman

Journal of Air Law and Commerce

On June 28, 2024, the Supreme Court overturned Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. with their decision in Loper Bright v. Raimondo—holding that judges are not obligated to defer to agency interpretations of the statutes they administer. One month after this decision, the Fifth Circuit Court of Appeals held that the Department of Transportation does not have authority to issue a rule regulating how airlines communicate certain fees to customers during the booking process. This decision contradicts the Seventh Circuit Court of Appeals’ earlier decision to uphold similar DOT regulations attempting to prohibit unfair and deceptive …

Guilty Until Proven Innocent - Litigating Shy Bladder Cases Before The National Transportation Safety Board, Alan Armstrong

Journal of Air Law and Commerce

For airmen, the drug testing regulations and procedures in the United States are dispiriting, oppressive, and unjust. Evidencing contempt for basic physiology, an airman unable to produce forty-five milliliters of urine within three hours is deemed to have “refused” a Department of Transportation (DOT) drug test. While the regulations require the airman to be briefed on the shy bladder protocol, this requirement is not enforced by the National Transportation Safety Board (NTSB).

The FAA, after losing a case where the airman left the drug testing facility without being warned that such conduct would be deemed a refusal, simply abolished the …

Green Dividends: A Case Study In Green Dividends And The Conditions For Private Ordering Solutions, Anne M. Tucker

Seattle University Law Review

This Essay introduces a novel private ordering solution to facilitate corporate investments in pro-social and environmental initiatives: Green dividends. Green dividends are an optional increase in shareholder dividends that are returned to the company to be reinvested in environmental initiatives or kept by a shareholder.

Green dividends pose an alternative to the current gridlocked debate that corporations can’t, won’t, shouldn’t, and shouldn’t even try to act in pro-social or environmental ways. Turning the common refrains on their head converts each narrative into an element for a successful private ordering solution: authority, accountability, shareholder buy-in, and government- backed enforcement. With Green …

Does Climate Disclosure Work To Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism, Cynthia A. Williams

Seattle University Law Review

Significant regulatory resources have been spent developing global, voluntary climate and sustainability disclosure standards, such as the TCFD, TNRD, and ISSB’s Sustainability and Climate Disclosure standards, or domestically required disclosures, such as in the EU and in the U.S. Thus, it is important to evaluate whether this disclosure, particularly voluntary, qualitative disclosure, will have the power to shift the allocation of capital, will have a significant effect on the management of climate risk within firms, and ultimately will reduce climate change risk and biodiversity loss.

In this Article, several interrelated questions will be discussed. First, what does the empirical evidence …

Money Talks: The Disproportionate Influence Of Corporations On U.S. Governance Today, David C. Hayter

Lewis & Clark Law Review

Corruption: “Dishonest or illegal behavior especially by powerful people (such as government officials . . . )”; and “inducement to wrong by improper or unlawful means (such as bribery).”

What does the word “corruption” first bring to mind? For some, maybe a foreign country—where political regimes blatantly use the government as a tool to further personal agendas or gains without due consideration of the citizenry. For others, a fictional movie or TV show depicting politicians and police officers providing protections to mafia members in exchange for cash. No matter what comes to mind, many today think of corruption as manifested …

Public International Air Lawfare: China’S Use And Abuse Of The Skies., Major Emily K. Johnson

American University National Security Law Brief

Following World War II, China entered a years-long period of civil war between the Kuomintang government, which was then in power as the government of the Republic of China, and the Chinese Communist Party. After years of conflict, the Kuomintang was forced to retreat to the island of Taiwan in 1949, effectively and reluctantly ceding the Chinese mainland to the Chinese Communist Party. Despite its best efforts, the Kuomintang never regained control of mainland China in the ensuing years; however, it never dissolved and instead remained in place on Taiwan.

As a result, Taiwan, which lies a mere 80-100 miles …

Lunar Refueling: Legal Issues And Suggested Solutions, Francesca Giannoni-Crystal

Journal of Law and Mobility

The establishment of settlements and economic activities on the Moon is expected to occur in the near future, positioning the Moon as a critical hub for continued exploration of the Solar System. Central to this development is the creation of a lunar refueling industry, which will play a pivotal role in supporting lunar activities and fostering further exploration.

Lunar refueling, which includes extracting local resources like lunar ice water to obtain hydrogen, offers key benefits, such as reducing the need for resupply missions from Earth, lowering launch costs, extending mission capabilities, and enabling launches from the Moon, which are more …

Pave Outer Space And Put Up A Parking Lot: Lagrange Points Should Be The Common Heritage Of Mankind, David A. Koplow

Michigan Journal of International Law

Outer space offers a vast array of opportunities, with different locations or regions available for exploitation by diverse users for a growing variety of satellite functions. But not all sectors of space are equally valuable for all applications, and the most desirable venues can become crowded, affording a premium for those who gain access first and impeding the development of a fair and efficient all-inclusive international legal regime.

This article focuses on Lagrange points, a finite series of special locations in space where the gravitational forces from a pair of large celestial bodies interact in unusual ways. These points afford …

Man On Mars: How Can International Space Law Limit The Environmental Consequences Of The Coming Rush For Resources In Space, Elizabeth Anne Henderson

Michigan Journal of International Law

The body of international law governing space has stood at a standstill for decades. The five central treaties regulating this area of law are not only vague, but they have also become a hindrance to the global community’s ability to address the rapidly intensifying second space race. The treaties do not adequately state who space belongs to, who is entitled to take advantage of the natural resources of celestial bodies, or what protections are afforded to celestial environments in the face of impending mining and resource extraction projects. This impasse within international law has not stopped entrepreneurs and corporations from …

Pave Outer Space And Put Up A Parking Lot: Lagrange Points Should Be The Common Heritage Of Mankind, David A. Koplow

Georgetown Law Faculty Publications and Other Works

Outer space offers a vast array of opportunities, with different locations or regions available for exploitation by diverse users for a growing variety of satellite functions. But not all sectors of space are equally valuable for all applications, and the most desirable venues can become crowded, affording a premium for those who gain access first and impeding the development of a fair and efficient all-inclusive international legal regime.

This article focuses on Lagrange points, a finite series of special locations in space where the gravitational forces from a pair of large celestial bodies interact in unusual ways. These points afford …

Ad Astra Per Aspera: Legal Revision Of Space Laws And Intellectual Property To Cultivate Global Alliance And Innovation, Jaiden E. Haggiag

Honors Undergraduate Theses

This thesis explores the inadequate nature of the current legal space regime and points out the gaps in outer space laws, including the following: Jurisdictional Challenges, Frameworks of Liability, and IP (Intellectual Property) Enforcement, utilizing laws such as the Outer Space Treaty (OST), the Liability Convention, the Registration Convention, the Moon Agreement, the Patent Cooperation Treaty (PCT), and TRIPS, along with national laws like the U.S. Commercial Space Launch Competitiveness Act and The Inventions in Outer Space Act (35 U.S.C. § 105.). Through analysis of current scholarly proposals and treaty evolution and synthesize to provide policy options, the goal of …

The Legal Debate: Corner Crossing And Public Land Access, Kaden Leverenz

Undergraduate Theses, Professional Papers, and Capstone Artifacts

Is it legal to cross from one corner of public land to an adjacent corner of public land across checkerboarded landscapes in the American West? This question regarding corner crossing has become one of the most prominent and unresolved issues in public land access. Although federal courts in Iron Bar Holdings v. Cape (2025) confirmed corner crossing, without touching or damaging private land, does not constitute trespass, the legal landscape still remains unsettled. Public land users play a significant role in shaping the direction of this issue, as demonstrated by past public mobilizations against large-scale land sell-offs. Therefore, this paper …

Aviation Cybersecurity And Third-Party Software Service Providers: Do Companies Like Crowdstrike Get A Free Pass To Create Cyber Vulnerabilities?, Claire Konerza

Journal of Air Law and Commerce

Commercial aviation has steadily become the busiest and most efficient means of travel across the world. In order to keep up with the increasing demands of its customers, the industry has undergone numerous digital and technological transformations in recent years. Collision avoidance systems have allowed for more planes in the skies, online ticket reservations have made booking a flight as simple as a few clicks, and in-flight wi-fi allows passengers to engage in both work and leisure at 30,000 feet. Overall, these innovations have increased safety, capacity, and convenience for both airlines and their customers. However, these transformations have also …

Front Matter

Journal of Air Law and Commerce

No abstract provided.

International Space Law Under The Trump Administration: Commerce And Security, Melissa (M.J.) Durkee

Scholarship@WashULaw

Early themes of the second Trump administration's orientation toward international space law include military assertiveness, privatization, and nominal diplomatic engagement. These themes carry significant implications for international space law. They pressure longstanding international legal ambiguities, widen existing geopolitical divisions, and raise questions about how public-private interdependence will shape state responsibility and the development of norms in space. This essay was prepared for a special issue of the American Journal of International Law that offers an introduction and overview of the U.S. government's actions across a wide range of international legal issues in the first six months of President Trump's second …

Space Resource Development And Property - Clarifying Usufruct, Jeremy A. Kent

Journal of Air Law and Commerce

This article examines competing legal frameworks for governing property rights in outer-space resources through a comparative analysis of two distinct approaches: the rule of capture and the concept of usufruct. The increasing interest in commercial space activities, such as mining the Moon and asteroids, has raised questions about the legal frameworks governing property rights in space resources. The growing challenge is that while the Outer Space Treaty (OST) serves as the foundation for space law, it does not explicitly address property rights in the resources humankind increasingly can extract from the space domain.

The rule of capture is a legal …

Dangers From Regulatory Vacuums In Outer, Inner, And Near Space, Rob Frieden

Journal of Air Law and Commerce

Space, “the final frontier,” has become an attractive but increasingly risky market for both public and private investments. Gold rush enthusiasm anticipates solutions to the digital divide via small low earth orbiting satellites, extraction of valuable minerals from asteroids, a vibrant space launch and tourism industry, and expanding earth observation opportunities. Such entrepreneurial boldness juxtaposes with a severe lag in government oversight, consumer safeguards, and essential operational guardrails. The ambitious plans of Elon Musk and other space entrepreneurs could fail—despite recent market success—as SpaceX’s plans for 148 rocket launches in 2024.

Without substantial refinement of global space treaties and effective …

Roaring Skies: The Law Of Supersonic Commercial Flight And Arguments For Its Return, Caleb S. Dorris

Journal of Air Law and Commerce

The prospect of supersonic commercial flight is no longer confined to history; it is reemerging as a viable transportation model in the 21st century. With major airlines placing orders for next-generation supersonic aircraft and regulatory agencies, including the Federal Aviation Administration (FAA) and the International Civil Aviation Organization (ICAO), reconsidering longstanding restrictions, the return of supersonic flight is imminent. This article examines the legal, regulatory, and policy considerations that have shaped supersonic aviation’s trajectory and explores the challenges that remain for its full reintroduction into global airspace.

First, this article surveys the historical rise and fall of supersonic passenger aviation, …

Airplane!: Does The Federal Aviation Act Preempt State Law Design Defect Claims?, Max Birmingham

Journal of Air Law and Commerce

Which level of government—state or federal—has jurisdiction to set safety standards for aviation defect design is a nuanced issue. Generally speaking, federal law preempts state law in this context by occupying the field through a regulatory scheme that permeates aviation safety. The Federal Aviation Act of 1958 (FAAct) confers its namesake agency—the Federal Aviation Administration (FAA)—the powers to prescribe the “minimum standards required in the interest of safety.” The word “minimum” has been seized upon by those on the state side of the debate to advocate that it means the floor. And they contend that those in the Union have …

Flight Path To Accountability: A Legal Comparison Of Boeing’S Shortcomings, Airbus’S Successes, And International Aviation Safety Regulations, Riley M. Wagstaff

Journal of Air Law and Commerce

Investigations following two separate and deadly crashes of Boeing 737 8 Max aircraft revealed that America’s most trusted manufacturer had failed to notify pilots and airliners alike of a new Maneuvering Characteristics Augmentation System, commonly known as MCAS. What had first seemed like an accident unfortunately had a deeper and traceable history. Through relatively new United States legislation, Boeing was essentially permitted to oversee their own operations and grant airworthiness certifications for their own aircrafts. This practice is wholly unlike the detailed certification process of the European manufacturing giant, AirBus, by the European Aviation Safety Administration (EASA). This comment sheds …

High Crimes In Low Airspace: The Rise Of Drones In Cross-Border Drug Trafficking, Hannah Haight

Journal of Air Law and Commerce

Can the United States effectively regulate its airspace when criminal actors exploit it without entering traditional territorial channels? Mexican drug trafficking organizations increasingly deploy drones to deliver narcotics across the U.S.–Mexico border. These flights often occur at low altitudes, at night, and in remote areas, which renders them nearly undetectable by conventional enforcement methods. Yet, no statute squarely addresses the use of drones in cross-border drug trafficking. The Federal Aviation Administration (FAA) regulates drones under the FAA Modernization and Reform Act of 2012, but its mandate is safety, not interdiction. The result? A growing technological asymmetry: criminal cartels innovate, while …

Let’S Jettison Some Executive Perks: Exploring The Sec And Irs Approaches To Personal Use Of Corporate Aircraft, Christine Lane

Journal of Air Law and Commerce

In 2023, 46% of the S&P 500 companies provided personal use of corporate aircraft to their chief executive officers, and 31% provided this perk to other named executive officers. This type of executive compensation has notoriously garnered much attention from the media, given the large amount of investor money spent on personal travel and the environmental impacts of flying private. In addition, the line between personal travel and business travel is often blurred, and the media has tracked flight paths of corporate aircraft to speculate that some flights may be incorrectly categorized as business trips when the jets land and …

Air Strikes In Myanmar - An Analysis Under International Law, Jacob Davis

Journal of Air Law and Commerce

Since the Russian invasion of Ukraine in 2022, and the reignited Israel-Palestine conflict in 2023, international law regulating the use of air power has been put to the test. The use of air strikes in civilian areas has put this shortcoming at the forefront of conversation about the use of force, and what constitutes a war crime in modern conflict.

This conversation has centered around the two aforementioned conflicts but has left other international disputes out of the discussion. In particular the civil war in Myanmar, a bloody conflict which follows decades of ethnic violence, political stratification, and a successful …

Front Matter

Journal of Air Law and Commerce

No abstract provided.

Fake Parts, Real Threats: Combating The Infiltration Of Counterfeit Parts In The Aviation Industry, Jennifer Su

Journal of Air Law and Commerce

This Comment addresses the historic and current-day issue of counterfeit aircraft parts in the aviation industry. Counterfeit parts—also known as fake parts, bogus parts, unapproved parts, and suspected unapproved parts (SUPs)—are any parts that do not conform to the U.S. Federal Aviation Administration’s (FAA) standards and regulations. Given the lackluster availability of public information and coverage over the issue, this Comment aims to bring more attention to the very real threat of fake aircraft parts.

From the beginning of U.S. commercial aviation and the creation of regulations governing aircraft designs and parts, counterfeit parts have plagued the aviation industry. Although …

Pengakuan Hak Masyarakat Adat Dalam Hukum Pengelolaan Sumber Daya Alam: Studi Perbandingan Indonesia–Australia, Farid Al Hadana, Sukarman Sukarman, Farhan Margono, Hamzah Hamzah

Jurnal Hukum & Pembangunan

Meskipun terdapat pengakuan konstitusional di Indonesia dan Australia, hak-hak masyarakat adat dalam tata kelola sumber daya alam masih lemah perlindungannya, terutama karena kerangka kerja Indonesia yang terfragmentasi dan tersentralisasi gagal mewujudkan keadilan lingkungan. Makalah ini membandingkan rezim hukum Indonesia dan Australia terkait tata kelola lahan dan sumber daya masyarakat adat untuk mengidentifikasi bagaimana pengakuan dapat diubah menjadi hak yang dapat ditegakkan dan untuk merumuskan model reformasi yang berorientasi pada keadilan bagi Indonesia. Dengan menggunakan analisis hukum komparatif kualitatif, makalah ini menggabungkan observasi doktrinal terhadap yurisprudensi konstitusional, peraturan-undangan, dan yurisprudensi dengan pemeriksaan dokumen kebijakan dan konflik ilustratif yang melibatkan wilayah masyarakat …