Air and Space Law Commons^™

The Law Of Space Cyber Operations: Gripping Mysteries, Entangled Frontiers, And Security Challenges, Roy Balleste

Journal of Law, Technology, & the Internet

The developments of technologies applicable to cyberspace and outer space offer new opportunities. Each nation, institution, and individual must be involved in the security of cyberspace in order to secure outer space activities, while reinforcing the legitimacy of that commercial process. The stories that follow consider the intersection of outer space law and cybersecurity, describing vulnerabilities and the limitations of implementing international norms. The article assesses the cyberthreat landscape while offering recommendations. The article's subsequent sections are organized as follows: Part II, The Cruel Sky, considers a historical mystery to better understand the contradictory world of cyber operations. Along the …

Front Matter

Journal of Air Law and Commerce

No abstract provided.

Recent Developments In Aviation Law, Christine Shang

Journal of Air Law and Commerce

This Article addresses recent developments in aviation law and the aviation field generally over the past year, from early 2021 through early 2022. It does not attempt to address every reported aviation case. Instead, this Article focuses on the areas of aviation law that will have significant ramifications for the future. This Article summarizes legal developments, including those related to COVID-19, the 737 MAX, 5G technology, space exploration, and more.

Front Matter

Journal of Air Law and Commerce

No abstract provided.

The Use Of Law To Address Space Debris Mitigation And Remediation: Looking Through A Science And Technology Lens, Annie Handmer, Steven Freeland

Journal of Air Law and Commerce

Increasingly over the past six decades, space exploration and technology have revolutionized the world we live in. The landscape in outer space has continued to evolve rapidly, presenting new challenges for a much slower moving legal framework as well as for peaceful uses of space more generally. In particular, space debris has emerged as a pressing global threat. In response, states have shifted towards a more informal two-pronged approach to outer space, as reflected by non-binding instruments adopted by the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS), along with the development of technologies that aim to …

3d Printing In The Aerospace Industry: Emerging Legal Issues For Counsel And Insurers, Lisa Savitt, Lauren L. Haertlein, Laura Dubois

Journal of Air Law and Commerce

This Article covers the fast-growing use of additive manufacturing, also known as 3D printing, in the aerospace industry for critical and noncritical parts. The use of this technology raises regulatory and liability issues in the United States and Europe. Insurers of aerospace-related companies must also consider how to plan for the risks involved with the technology and the new entrants in the market who are designing, selling, and distributing additive manufacturing printers. Neither the regulatory bodies in the United States nor Europe have issued regulations aimed at additive manufacturing, as the law is even further behind. This Article informs lawyers …

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 …

Law And Liberty On The Moon, Frans Von Der Dunk

Space, Cyber, and Telecommunications Law Program: Faculty Publications

As on Earth, so in outer space . .

Most of those participating in humankind’s venturing into outer space, in particular to the extent of establishing settlements there and thereby providing for a second home for humanity, would hope or even assume that humankind in so doing might be able to avoid the sometimes rather bloody developments that accompanied settlement in far-away territories on Earth. However, at least in the legal area, with a view to its role as providing not only justice and fairness but also predictability and foreseeability, logic dictates that terrestrial laws and experiences of these laws …

Anthropometry Considerations In The Design And Evaluation Of Flight Deck Displays And Controls: Literature Review, Robert Joslin

International Journal of Aviation, Aeronautics, and Aerospace

The regulatory requirements and guidance for showing compliance with the Federal Aviation Administration anthropometric considerations in aircraft design are widely dispersed in an array of source documents. Consequently, they are difficult for aircraft manufacturers/applicants to identify, interpret, and address thereby extending the time to certify new/modified aircraft and aircraft systems. This literature review is intended to provide a compendium of the anthropometry considerations in the design certification of displays and controls in aircraft flight decks. This document is not a compliance document and the references herein are frequently updated, hence should be verified by the reader.

Mega-Constellations: Disrupting The Space Legal Order, Steven E. Grotch

Emory International Law Review

No abstract provided.

Navigating The Structural Coherence Of Sea Life, Aldo Chircop, Philip Steinberg, Greta Ferloni, Claudio Aporta, Gavin Bridge, Kate Coddington, Stuart Elden, Stephanie C. Kane, Timo Koivurova, Jessica Shadian, Anna Stammler-Gossmann

Articles, Book Chapters, & Popular Press

Ice breaking by ships can cause irreparable harm to the ecologies and cultures of northern regions. This chapter revolves around a central question: what are the barriers preventing the development of a legal mechanism to limit this act of environmental violence? The chapter suggests that the central barrier is not so much legal as it is ontological: foundational conceptions of space that underpin Western legal institutions are unable to value the form of water, reducing it instead to an ed space that is used for movement or resource extraction. This chapter demonstrates how a consideration of the environmental violence of …

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 …

Changemakers: Rewards Of The Road Less Traveled: Dylan Collins, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Establishing Commercial Aviation Safety Privilege: Court Precedent Versus Statute, Jason Powell

International Journal of Aviation, Aeronautics, and Aerospace

This concept paper evaluates the pros and cons of establishing commercial aviation safety privilege beyond the almost uniquely United States Department of Defense (DoD) legal protection built upon court precedence (stare decisis) as a statutory concept that can apply across all aviation investigations. The protection offered under Title 49 CFR 1114 only applies to the information provided that is not part of the safety investigation and allows full release of interviews that pertain to the investigation, which is further applied in the National Transportation Safety Board Aviation Investigation Manual (2002). The Supreme Court of the United States recognized different privileged …

Use Of Unmanned Aircraft Systems And Regulatory Landscape: Unravelling The Future Challenges In The High Sky, K Kirthan Shenoy, Divya Tyagi

International Journal of Aviation, Aeronautics, and Aerospace

The individuals on the ground nowadays often observe objects distantly hover over the sky, which raises the question of who might be operating the object or what the object might record. Unmanned Aircraft Systems (UAS) or Drones today have quickly penetrated civilian, military, and commercial sectors. The drones or UAS, with the advancement of technology, are now capable of traversing long distances, having long endurance, and having multipurpose functionality. The UAS industry is fast expanding, with trade investment touching the billion-dollar mark in flourishing economies. The advent of the Covid 19 pandemic saw a steep rise in the use of …

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 …