Volume 24: Issue 1 Abstracts
“Alternative Evidence Rules for Arbitration” by Henry Zhuhao Wang
Today, arbitration is broadly used for resolving civil disputes domestically and internationally. It is a subject so popular in practice that calling it an “alternative dispute resolution” may in fact be a misnomer. Regarding the taking of evidence in arbitration, the cliché is that no rules apply, and that arbitrators have the ultimate authority. In practice, too many arbitrators simply let everything in, no matter how prejudicial, cumulative, incredible, suspect, or otherwise useless, for fear that ruling out anything may lead to vacatur.
This article probes into the importance and feasibility of having evidence rules in arbitration. It argues that the lack of evidence rules in arbitration cuts two ways. While some features of arbitration, like flexibility and efficiency, favor dispensing with most rules of evidence, such standards of practice slice away at the reliability, predictability, and fairness of arbitration. In addition, when arbitral parties are from different legal traditions, there is a special need to harmonize the rules for taking evidence. Beyond these two issues, the current trend of “judicializing” or formalizing arbitration also calls for forming more rules of evidence.
If evidentiary rules are needed in arbitration for good reasons, what should, or could, those rules look like? This article brainstorms this important issue, suggests five promising perspectives, and compares them with the traditional evidence rules applied in jury and bench trials, culminating with an examination of the emerging best practice of taking evidence in arbitration: the IBA Rules on the Taking of Evidence in International Arbitration, including these rules’ strengths and limitations. The high popularity of the IBA Rules in practice proves that model evidentiary rules as soft law for parties and arbitrators could attain success. And it is now time for evidence scholars to contribute to the development of this exciting frontier.
“Defining and Balancing Equity” by Erica Goldberg
Equity has become a significant goal of every major institution in the United States. Yet equity is often vaguely defined and comprises multi-faceted goals. The concept of equity, as a foil to treating everyone identically under formal equality, can both foster and undermine an institution’s primary mission or other values. This paper reckons with how institutions, especially legal academia, can balance equity against other institutional values. The proper balancing of equity and other institutional values is impeded by the difficulties defining equity and the chilling effects institutional actors face in discussing these issues.
This paper first traces the concept of equity from its historical roots in Aristotle and the courts of equity, to modern anti-discrimination law, to critical theory scholarship. The paper then defines what I term procedural equity, which is focused on fairness of access and opportunities, and substantive equity, which is focused on fairness of results. These concepts of equity exist in some tension with an institution’s other goals, such as efficiency, freedom of speech and inquiry, and classical liberal individual rights or other moral systems of justice. Critical to performing this balancing is an ability to discuss these issues openly, and institutions, especially academia, are not leaving sufficient spaces open for members to have diverging views on the different conceptions of equity.
“Alabama’s Gotten Me so Upset: The 2022 Alabama Executions” by Alexandra L. Klein
The Death Penalty Information Center described 2022 as “the year of the botched execution” in its 2022 Annual Report. Alabama’s execution errors were especially serious: it attempted to execute four people, botched three of its four executions, and ultimately had to call off two of those executions.
This Article documents the 2022 Alabama executions and makes three contributions. First, it summarizes the events in Alabama surrounding the executions of Matthew Reeves and Joe James, and the failed executions of Alan Miller and Kenneth Smith. It reviews some of the issues associated with each man’s capital sentence and appeals process. Second, it explores points of commonality among each of the four cases: non-unanimous jury sentencing and judicial overrides; inadequate legal representation; the role the Supreme Court played in the cases; and the problems associated with Alabama’s execution protocols. Finally, it addresses the outcome of Alabama’s decision to suspend executions and offers some paths forward if Alabama’s elected officials are unwilling to take the necessary step to abolish the death penalty.
The problems this Article describes are not unique to Alabama, but events in Alabama afford an opportunity to bring fresh scrutiny to these issues. The Supreme Court’s willingness to authorize executions makes it more likely that errors like this will continue to happen. Alabama is not the whole story of 2022’s botched executions, but what happened in Alabama illustrates just how pointlessly cruel the process of capital punishment is.
“Delegation Inside the Executive Branch” by Stephan Migala
For nearly 200 years, authorities from the Supreme Court to the Restatement, including several attorneys general, have consistently concluded that duties requiring judgment assigned to one officer by Congress cannot be redelegated to another without express statutory authority. As a result of this black-letter-law maxim, hundreds of statutes have been enacted to carefully grant express, targeted delegation authority to specific officers.
But particularly in the last 20 years, this once-solid maxim been flipped on its head. Now, instead of looking for an officer’s express authority to redelegate to a subordinate, also known as “subdelegation,” a growing number of recent courts blanketly assume the ability of any federal officer to subdelegate and solely look for express authority to prohibit it. However, inverting the legal inquiry in this way only came about due to misreadings of case law and a fading familiarity with key principles, not any intentional legal shift.
Following these contemporary courts, many modern scholars now presume the same. But amid numerous commentaries reviewing the implications of delegation, no known work has reviewed or challenged recent courts’ shift of the once-stalwart principle. This article is the first to address that topic with sorely needed scholarship.
By tracing the legal history underpinning delegation, including by highlighting differences between public and private agency, shedding light on early practices, identifying statutes written precisely because of the delegation maxim, and tracing how the recent court split occurred and grew, this article aims to recover and defend a view counter to this recent trend.
This topic has enormous practical importance. It goes to the core of how government functions and who has the authority to do what. Moreover, it implicates constitutional concerns in both Appointments Clause questions and separation of powers safeguards, particularly since unbounded delegation risks the Legislative Branch losing two of its few and vital structural checks on the Executive Branch.
“Points of Diversion from Nevada’s Established Groundwater Laws” by Colin Meenk
Climate change and continuing urban development are straining Nevada’s water resources, and the state legislature is struggling to find or create new ways to conserve water. In 2011, the legislature adopted Nevada Revised Statutes (NRS) 534.110(7) and 534.037, authorizing the State Engineer to label groundwater basins as Critical Management Areas (CMA) and giving groundwater rights holders the opportunity to formulate and apply Groundwater Management Plans (GMP) to reduce groundwater use and over-pumping. So far, only the Diamond Valley basin has been labeled a CMA. The basin’s groundwater rights holders drafted a GMP with provisions contrary to Nevada’s long-established doctrine of prior appropriation, and this GMP was approved by the State Engineer. In a pivotal case interpreting the 2011 legislation, the Nevada Supreme Court sustained the State Engineer’s approval of the Diamond Valley GMP, thereby approving the plan’s deviations from prior appropriation. This Note assesses the possible impacts of this new precedent on the future of Nevada groundwater law and the state’s adhesion to prior appropriation.
“Electing Prosecutors Based on Their Convictions” by Ryan Edwards
Prosecutors wield broad influence over criminal cases due to their power of prosecutorial discretion. In recent years a growing number of prosecutors are exercising that discretion by crafting policies that deprioritize or decline prosecution of entire categories of crimes. Because most state and local jurisdictions in the United States elect their head prosecutor, policy-based prosecutorial discretion can even become an electoral strategy for voters who seek to express displeasure with certain categories of criminal laws. Following the reversal of Roe v. Wade in 2022, criminalized abortion has become one such category of law in many states. The 2022 midterm elections demonstrated that there is great popular support for abortion access among the electorate in many jurisdictions including ones where the laws appear out of sync with those voters’ preferences. In this uncertain environment, some prosecutors are leaning on their broad discretionary powers to decline prosecuting cases of abortion.
This note uses the ordeal of Andrew Warren, a prosecutor in Florida who announced such a discretionary policy, to illustrate the promise and limitation of policy-based prosecutorial discretion. The note argues that so long as we have prosecutorial elections, we should encourage or even demand candidates who articulate policies describing how they will exercise their power of discretion. This practice will give voters a genuine choice when choosing a prosecutor by evaluating the candidates’ moral convictions as much as their criminal convictions.
“Selling Sustainable Sodas, Shoes, Sweets Sustainably: Reasonable, Objective, Sustainability Marketing in a Global Energy and Environmental Transition” by Meredith A. Wegener
Whether an enterprise’s environmental sustainability marketing claims are legal, how such assertions should be evaluated, and what sustainability marketing may include in the future are significant considerations for all stakeholders. Set against the backdrop of the Federal Trade Commission’s (FTC) current review of the “Green Guides,” the very statements and representations made by businesses are timely and significant to legally and ethically conducting, disclosing, and marketing environmentally sustainable strategies and accomplishments.
While green advertising or environmental marketing has been the subject of prior analysis, the time is now to set the line with respect to sustainability that balances consumer perception and a business’ reality. Recent cases involving consumer products (including Coca-Cola and bottled water), the use of fossil fuels, plastic production and utilization, and connected sustainability claims, provide a common thread that may be utilized by regulators, consumers, businesses, and consumer watch organizations. Reasonableness, and objectivity, concepts readily found throughout existing law, are the solid ground to build upon for sustainability marketing analysis.
Businesses are unquestionably in an era where energy and environmental practices are scrutinized, discussed, challenged, and part of branding and marketing. Looking to aspirations versus actions when grounded in reasonableness, a structure exists for evaluating sustainability claims that not only protects consumers but encourages businesses to continue to participate in the sustainability dialogue and global environmental efforts. After the Introduction, part two of this article presents and analyzes how sustainability is currently unevenly defined and used across multiple contexts, demonstrating the grand scope involved and the challenges encountered by stakeholders asserting, receiving, and evaluating messages of sustainability. Utilizing key components of current cases and their common analytical thread of reasonable objectivity, part three proposes a framework for assessing sustainability claims and inclusion in future Green Guides, regardless of perspective and purpose. Finally, part four concludes by looking ahead to the role that sustainability plays in addressing existing and future challenges and the importance of encouraging sustainable action and communication.
“Doing Things with the Language of Law and Gender: Using Speech Act Theory to Understand the Meaning and Effect of the Gender Identity Backlash” by Susan Etta Keller
A significant legal backlash against transgender individuals is currently under way. This movement--which includes state legislation, state executive action, and federal cases--seeks to limit access and participation by transgender individuals in school sports, use of bathrooms, access to appropriate care, and even the right to be addressed appropriately in the classroom. Properly understood as a political backlash in response to previous political gains by transgender individuals, this movement is composed of a series of speech acts: language that makes change in the world and alters human relations. This article identifies the features of the backlash and the power dynamics that fuel it. Applying Speech Act Theory, the article undertakes a close examination of the language of the legislation and cases to reveal the many cloaked performative speech acts that animate the backlash. Understanding the way that the language of law and the language of gender operate to promote and normalize this backlash is a key first step to undermining the deleterious effects of these speech acts.
“’Twitter Jail’ for the Jailer: The Precarious First Amendment Rights of Police Officers in Share Workplace Concerns on Social Media” by Frank D. LoMonte and Jessica Terkovich
The behavior of police officers is under intense, and arguably overdue, scrutiny – and that includes their online, off-duty behavior as well. Dozens of officers have been fired for social-media posts expressing racial bias or otherwise indicating unsuitability for a sensitive, life-and-death government job. But at times, officers have succeeded in challenging vague, overbroad workplace rules that inhibit constitutionally protected speech, including speech that calls attention to their agencies’ shortcomings. In recent years, the Fourth, Ninth and Eleventh Circuits have all sided with officers bringing facial challenges to unduly broad workplace restrictions that forbid sharing information learned on the job or portraying the law enforcement agency in an unflattering light. Courts and police departments face challenging line-drawing questions in trying to decide when – if ever – a government employer can punish employees for diminishing the agency’s reputation in the eyes of the public.
This article analyzes the growing body of First Amendment caselaw adjudicating challenges to law enforcement agencies’ regulations on off-duty social media speech. It focuses on the Fourth Circuit’s 2016 ruling, Liverman v. City of Petersburg, in which the court declared that a police department may not forbid officers from posting “negative comments” critical of their employers, because such a rule chills officers’ ability to engage in constitutionally protected whistleblowing. The article then turns to an examination of the policies actually in force at America’s largest police departments and sheriff’s offices throughout the country, and finds that at least half of them appear misaligned with prevailing constitutional standards, in restricting officers from saying virtually anything about their workplaces on social media – particularly anything that might harm the agency’s image, which could readily be interpreted to encompass speech exposing official misconduct.
The authors urge law enforcement agencies to rethink how they regulate officers’ online speech in light of Liverman and its progeny, making sure that officers and their supervisors clearly understand that speech addressing matters of public concern – including speech about policing – is beyond the authority of government employers to forbid. The article offers examples, including the policy in force at the Baltimore Police Department, of narrowly tailored policies that forbid sharing only especially sensitive information that might legitimately compromise essential policing functions, leaving the essential “breathing space” to comment on social and political issues that courts have long recognized the First Amendment requires.
"Just don't do it: Why Cannabis Regulations are the Reason Cannabis Businesses are Failing" by Edward Adams
Many states are legalizing both medicinal and recreational use of cannabis, allowing many to enter into a once lucrative industry. However, federal, state, and local regulations hinder cannabis businesses, especially new cannabis businesses, from succeeding. This Article traces the history of cannabis legalization and regulation up to the current landscape of cannabis regulation and how such regulations result in cannabis companies failing. While these regulations pose a significant problem, federal criminalization of cannabis culminates in many cannabis companies having limited access to capital resources, federal bankruptcy relief, and harsh federal taxes. Notably, this Article discusses how specific state regulations on licensing and production, along with increased taxes at the state and federal level, are the cause for these failures. From there, this Article reviews the actual cannabis market and the real-world impacts cannabis regulations and taxes have had on cannabis companies. Ultimately, this Article advocates for fewer regulations on the cannabis industry and gives caution to those considering entering the cannabis market given the current regulatory environment. When asked if one wants to start a cannabis company, the answer should be: Just don’t do it.
“Supreme Court Legitimacy and Reform: Problems with Personnel and Composition Reform Proposals” by Joe Morgan
Some people claim that the United States Supreme Court—which is currently dominated by a conservative supermajority—is in a legitimacy crisis. Unsurprisingly, many people are therefore calling for institutional reform. Several types of reform proposals have been presented over the years.
This Note evaluates and presents a normative claim concerning a particular group of reform proposals: “personnel” or “composition” reform proposals—those reform proposals that directly address the number of Justices, when Justices get replaced, how seats on the Court are allocated, and which Justices hear cases. This Note proceeds in three parts. Part I provides an overview of the legal background, including the Constitutional provisions and the corresponding doctrine, understandings, and norms concerning the Supreme Court. Part II discusses and evaluates current personnel and composition reform proposals, including altering the number of Justices, introducing term limits, allocating seats on the Court based on partisanship, and mandating that the Court decide cases as panels. Part III discusses the problems common to these personnel and composition reform proposals that emerge after evaluating them.
This Note concludes that reformers should jettison the notion that personnel and composition reform proposals can solve all of the Court’s legitimacy problems on their own. Instead, reformers should consider and develop other, more neutral types of reform proposals that do not fetishize directly changing the Court’s personnel and composition in order to reduce its politicization. Reformers’ fixation on the Court’s current personnel and composition is understandable, but focusing long-term institutional reform efforts on changing the same is misguided and counterproductive.
“Climate Reparations” by Benoit Mayer
Anthropogenic greenhouse gas (GHG) emissions have caused unprecedented change in our environment, resulting in tremendous impacts, often affecting the most those individuals, communities, and countries least responsible for these emissions. For over three decades, small-island developing countries have claimed compensation for climate change impacts such as sea-level rise and the increasing frequency of extreme weather events. For long, such claims appeared unlikely to succeed. In international negotiations, they faced strong opposition of industrial countries. In courtrooms, cases were dismissed one after the other, as judiciaries appeared ill equipped to address the immense pool of potential parties that climate reparations could involve.
In the last few months, however, major developments have taken place, causing a sea change in the discourse on climate reparations. At the 27th session of the Conference of the Parties (COP27) to the UN Framework Convention on Climate Change (UNFCCC) in November 2022, developed country negotiators have agreed to “establish new funding arrangements for assisting developing countries … in responding to loss and damage”. And in the following months, advisory opinions on climate change have been requested from three international courts and tribunals—each of which including questions about the responsibility that states may incur for breaches of their obligations on the mitigation of climate change.
This article considers whether and how climate reparations could and should be imposed. The analysis focuses on the international plane, where most of the recent developments have taken place, and where institutions may be better equipped to deal with the global nature of climate change and the justice issues it raises. The article engages with both the legal debates on the existence of an obligation of states to make reparations for the impacts of climate change and the political debates on the desirability of such reparations, as these debates are intertwined. The legal analysis is informed by the Articles on the Responsibility of States for Internationally Wrongful Act of the UN International Law Commission and by subsequent case law and academic publications. It is also informed by the author’s leading research on the international obligations of states on climate change mitigation and on ongoing international advisory proceedings.
Following the Introduction, Part II provides a general background to the article. It starts by retracing the evolution of responses to climate change under the UN climate regime. Then, it documents how negotiations on climate change have engaged with reparations claims. Lastly, the role of adjudication is discussed. While domestic lawsuits have not generally led to any award of damages, international advisory proceedings are presented as more promising, in particular on the ground that international judges are in a better position to define a systematic remedial framework.
Part III explores the various potential grounds for the payment of climate reparations. The argument leads to nuanced conclusions on the possibility and desirability of some forms of climate reparations. The first section determines the conditions under which a state’s conduct in relation to climate change mitigation can be considered “wrongful” for the purpose of the law of state responsibility. This implies identifying the source of international legal obligations that may be breached as well as the conditions under which this breach can be demonstrated. Among other things, this section discusses the difficulty of assessing the wrongfulness of historical emissions. Assuming that an internationally wrongful act can be identified, the second section assesses the possibility of establishing that an injury has been caused by this act. One difficulty is that climate change impacts do not result directly from a country’s GHG emissions, but from the cumulative effect of the emissions of multiple countries; another difficulty is that it is not always clear what constitutes a climate change impact at the first place. The third section considers alternative grounds for climate reparations, such as “joint and several” liability as well as liability for lawful conduct. Yet, it concludes that these grounds are likely not applicable in relation to climate change.
Part IV turns to more concrete considerations of how climate reparations could be implemented and what they may consist of. The first section discusses the application of classical forms of reparation under international law: restitution, compensation, and satisfaction. It argues that these three forms of reparation are relevant, and could be combined, despite a number of difficulties. Restitution, for instance, could consist of additional emission-reduction or carbon-capture obligations. Further, due to political constraints, compensation could only ever address a small fraction of climate impacts. The second section discusses the desirability of more innovative forms of reparation, reviewing proposals about an insurance mechanism, a global taxation scheme imposing GHG emitters, or additional emission-reduction obligations for excessive emitters. It is shown that these innovative forms of reparation can only be viewed, at most, as a complement to the classical forms (i.e., restitution, compensation, and satisfaction). The last section considers how international courts and negotiations could pave a road towards the implementation of climate reparations. The article argues that courts’ role—in particular in ongoing advisory proceedings—should primarily be to foster effective political negotiations, where an equitable remedial framework should be devised. Yet, were these negotiations to continue to fail, courts should be ready to take a more active role.
Altogether, this article complements the existing literature by providing a thorough, critical overview of the way climate reparations could be conceived and implemented in international law. It aims to impact both judicial processes (e.g., international advisory proceedings currently pending before three international courts) and international negotiations in the years to come as important decisions are made on the question of climate reparations.
“Relocating Residents in Floodplains: Restoring Dignity through Fair Housing Planning” by Jade A. Craig
Many communities in America spatially segregated residents along racial lines. This process often involved intentional decisions by city officials and white property owners to restrict access to property to residents of color in the least desirable areas in the region. These areas included low lying areas and floodplains. According to an analysis of flood damage claims paid by FEMA from 2010 to 2019, twenty percent of the claim dollars went to ZIP codes where at least one-quarter of the residents are Black. These ZIP codes made up only thirteen percent of the U.S. population, which suggests that Blacks were hit harder by flood-related disasters.
The Biden Administration’s recent revisions to the rule implementing the provision of the Fair Housing Act which requires all recipients of federal HUD funds to “affirmatively further” fair housing (the “AFFH Rule”) have brought fair housing planning into the spotlight. Fair housing planning provides an opportunity for local governments to think critically about how to address historic injustices that confined Black communities to floodprone areas. Flood risk lowered Black residents’ property values and imperiled their ability to maintain their homes in the face of persistent natural disasters. As sea levels rise due to climate change, entire historically Black communities and towns are at risk. My paper suggests that the remedy for individuals residing in floodplains should be consistent with promoting resilience in the face of climate change. Thus, land use policies regarding residents in these areas should focus on relocating landowners to locations on higher ground and releasing floodprone areas to more sustainable uses, including returning them to natural habitats. Bernadette Atuahene’s work on dignity takings suggests that there should be not only a right to relocation as a matter of just compensation if the state takes an owner’s land for a public purpose. There is also a right to relocate to a place that connects people to opportunity that individuals relegated to the floodprone area were denied.
These decisions of relocation, however, must be addressed very carefully. The nexus between fair housing law and climate change has become more apparent as communities across the United States struggle with climate gentrification, a phenomenon in which largely white, higher-income residents move into formerly disinvested majority low-income communities of color that happen to be on higher ground or in areas at lesser risk of climate impacts. The resulting displacement of those residents of color places residential integration, the chief objective of the Fair Housing Act, even further out of reach. If we move residents of color away from floodprone areas, we risk destabilizing vibrant communities. If we move white residents into areas on higher ground occupied by residents of color, we must manage the risk of physical and cultural displacement that residents of color face in the process.
I argue that policymakers should view the relocation process as a question of fair housing planning. HUD’s AFFH rule broadens the concept of fair housing to encompass community development challenges, extending it beyond the traditional focus on individual acts of housing discrimination. Fair housing planning also shifts fair housing enforcement from litigation into policy, which allows local governments to deal with broad-scale problems that have a disparate racial impact more efficiently. I examine the challenges with taking a litigation-based approach to this problem, including the difficulty in establishing causation for a flood-based injury or state action that might establish an unconstitutional taking. These tensions point toward a policy solution. A fair housing planning lens may require local governments to prioritize land close to amenities and land which facilitates social integration. It also can provide a framework for developing relocation areas in ways that that connect people to the broader community network, including through transit
oriented development. Policy-based solutions grounded in fair housing principles can facilitate relocation from floodprone areas in ways that restore dignity and promote racial reconciliation.
“Let the Sun Shine: Methods for Expansion of Small-Scale Solar to Reduce Fossil Fuel Dependance, Ease Financial Energy Burdens, and Enhance Community Resiliency” by Kara Consalo
Renewable energy sources are a viable alternative to fossil fuel-based electricity generation, which reduce carbon emissions and lessen our global climate crisis. For sunny climates, like those found in southern U.S. states, solar power is a plentiful and reliable source of renewable electricity. Small-scale solar deployment, generally meaning rooftop solar and associated mini
grids, also serves to create resiliency in the face of increasing occurrences of climate-based extreme weather events, such as destructive hurricanes and floods. Finally, the simple infrastructure and limited space requirements of small-scale solar enable property owners to use self-generated solar electricity to reduce cooling costs as global temperatures increase. Well developed solar policies can even allow households to derive profit from the sale of their surplus electricity.
This article will discuss the role of solar power as a reliable source of small-scale on-site electricity generation and explore the legal, financial, and political tools which can enable communities to rapidly expand small-scale solar infrastructure. As an introduction, the article will provide a layman’s explanation of the mechanics of small-scale solar, including the science of converting solar energy to electricity, the mechanics and necessary infrastructure for small scale solar electricity generation, and an overview of small-scale solar installation and maintenance costs.
The article will then discuss the many benefits arising from installation of on-site solar and mini grids. The most obvious benefit is to reduce local utility reliance on carbon-emitting fossil fuels to meet community electricity demands. As a part of this discussion, the author will explain why current utility pricing models and large grid infrastructure often cause local utility providers to be resistant to self-generated solar power. In addition to the reduced community reliance upon fossil fuels, this article will discuss the beneficial role of small-scale solar in providing property owners greater energy and economic freedom as they are able to rely less on public utilities for electricity. This discussion will include analysis of the policies, both legal and financial, necessary to allow property owners to sell surplus solar power back to the local utility and thus reap greater financial rewards. Finally, the benefits of on-site solar facilities and mini-grids to develop energy resiliency during extreme weather events, such as floods and hurricanes, will be explained.
The focus of the article will then turn to an evaluation of how federal, state, and local governments, as well as private enterprises, can encourage development of on-site residential solar facilities. This discussion will begin with common policy tools which have been successfully used to encourage renewable energy development, including favorable taxing structures and incentives, special assessments, low-interest bonds and low-interest loans, grants, and private/public partnerships. Success stories, like the State of Hawaii’s dramatic increase in residential solar, will be explored in depth. Conversely, the article will explore laws and policies which have been enacted in states like Florida which limit self-generated residential solar in order to protect public utilities from revenue losses. Such protectionist laws may include prohibition of mini-grids, limitations on the ability of cities and counties to offer tax breaks or other incentives, and prohibitively high taxing structures on solar infrastructure. Recommendations will be made as to how such laws may be modified to allow free-market growth of small-scale solar while causing less detrimental effects on utility company profits.
This research will provide guidance for residential solar power advocates to lobby for laws and policies at the federal, state or local level which foster deployment of small-scale solar facilities. Such laws will in turn help the global community to reduce carbon emissions, help low-income communities afford and profit from energy generation, and develop resiliency in communities vulnerable to extreme weather events.
“Military Carbon Emissions” by Nadia Ahmad
On the third anniversary of the World Health Organization’s declaration of a global pandemic, the first-Generation Z member of Congress, Maxwell Alejandro Frost, tweeted that the defense budget should be reduced in order to invest in local communities. Rep. Frost’s argument that the funds should be reinvested in the local communities was both economic and moral in nature. The national security interest influenced the manner in which communities received funding. In presenting this economic argument, Rep. Frost expanded demilitarization’s social justice and humanitarian dimensions. Following the emergence of Black Lives Matter, defunding the police has gained traction, but demilitarization has been a more tenuous process. In this Article, I contend that military carbon emissions should be included when calculating the carbon footprint and determining how to respond to the carbon crisis. Rep. Frost has cited as issues of concern Medicare For All, Ending Gun Violence, Pandemic Preparedness, the Climate Crisis, Reimagining Justice, and Housing & Transit. Not only did he call for a reduction in defense expenditure, but also a redistribution of those funds to communities in general. While others have acknowledged the connection between climate change and national security, I support Rep. Frost’s more radical understanding of the impact on national security and defense expenditure. I additionally argue that defense spending is the driver of climate change and responsible for the decline of the United States’ global standing and influence.
To strengthen the United States’ position in climate negotiations, I urge the withdrawal of American troops from foreign lands and the closure of American military bases. Proponents of continued militarization may argue for maintaining a military presence in certain regions. Nevertheless, a large foreign military presence can be perceived as aggressive or intrusive, these measures would alleviate tensions between nations. Reducing the size of military fleets and installations can promote diplomatic relations and peaceful resolutions to conflicts. According to Representative Frost, these measures would conserve a substantial quantity of resources, including financial, human, and natural. The redirected funds can then be invested in domestic and international climate change adaptation and mitigation initiatives, including renewable energy, infrastructure, and disaster relief. Since the U.S. military is a major consumer of fossil fuels and a significant contributor to greenhouse gas emissions, reducing the scale and scope of military operations would likely result in lower emissions and a smaller carbon footprint, which would be consistent with global climate change mitigation objectives. Another potential outcome of such actions would be a transition from military dominance to cooperation. Sharing technology, expertise, and resources to develop and implement effective solutions could be part of this change.
“Sacrifice Zones” by Jonathan Rosenbloom
Thousands of acres of land have been lost to climate change. Additional thousands, if not millions, of acres of land, will become uninhabitable due to floods, droughts, heatwaves, wildfires, and a host of other known and unknown climate impacts. Yet people continue to build structures in such areas for homes, businesses, infrastructure, and so on, essentially guaranteeing that state and local governments will be perpetually engaged in emergency management and salvage operations well into the indefinite future. From a climate change perspective, such construction reduces our resiliency while it increases our vulnerability to the demands of climate change. To prevent this very dangerous and expensive future, this article proposes a new and equitable land use approach to regulating these areas. Relying on an old land use tool— called overlay zones—this article proposes “Sacrifice Zones” to identify areas where new construction will cause harm. Sacrifice Zones apply overlay zones in previously unexplored ways. They give local governments more flexibility and agility to safely and equitably adapt critical areas affected by climate change. Scholars have described a variety of ways to adapt to climate conditions, but few have deeply explored the use of zoning to help adapt, and no one to-date has explored the use of overlay zones to reclassify areas as Sacrifice Zones. Applying Sacrifice Zones can help local governments proactively regulate lands that will be unlivable and can help reduce catastrophic human, economic, and environmental loss.
“Transitioning to Carbon Farming One French Fry at a Time” by Alexia Brunet Marks
What if McDonalds restaurants decided to source 100% of their French fries from farms fully committed to using climate-friendly agricultural practices like regenerative agriculture, a practice capable of reversing climate change? McDonalds uses 7% of all potatoes grown in the U.S. to make their French fries, with the remaining share of potatoes going to other popular foods. Americans eat a total of 4.5 billion pounds of French fries each year, second to potato chips which comes in first with 6.7 billion pounds consumed annually, and above an astonishing 75 million tater tots which places third. Transitioning commodity crops like potatoes to regenerative agriculture, could have a significant impact on human health, environmental health and climate health.
This paper argues for a transition from conventional agriculture to regenerative, climate friendly agricultural practices and charts a path for making this shift. While conventional farming practices release carbon dioxide into the atmosphere, contributing to the greenhouse gas emissions causing climate change, regenerative agricultural techniques (also known as ‘carbon farming’) have the opposite effect: these practices use plants to store rather than release carbon into the atmosphere. Strategic partnerships between private sector firms, growers, scientists, academics, and others – like for example, between food giant McDonalds, potato grower McCain Foods, and soil scientists from the Kansas Soil Institute – have the potential to accelerate the number of acres committed to carbon farming, thereby increasing the magnitude of carbon absorbed from the atmosphere.
This article is the first to use case studies from the experiences of strategic partnerships involving three food giants, McDonalds, Appelgate Farms, and Danone, to identify the motivations and pathways for adopting carbon farming practices in the United States. The results show that companies are motivated by a diverse array of monetary and legal incentives. Companies adopt regenerative agricultural practices to (1) reduce their monetary spending on inputs like pesticides, water and labor, (2) increase monetary rewards like carbon credits, and (3) reduce exposure to legal liability such as shareholder, misrepresentation, fraud and greenwashing claims that arises when firms advertise corporate Environmental, social, and governance (ESG) policies without taking material steps to act responsibly.
“Humanitarian Intervention, Its Misuse, and a Proposed Solution Through the International Court of Justice” by Michael Pappas
Humanitarian interventions are a military tool for the purpose of stopping an ongoing genocide or crime against humanity, and they present a (shaky) legal alternative to the traditional United Nations Security Council resolution for the use of force. Although their legal authority is not formally cemented in international law, there is a growing acceptance of humanitarian interventions among both the international community and scholars for their ability to stop the worst crimes against humanity. However, that growing legitimacy is a double-edged sword because those shaky legal foundations can—and have—been misused by insincere actors, with Russia being the clearest example. This paper assumes a normative perspective that humanitarian interventions, at their best, are good and should be protected from the misuse of
states trying to justify their otherwise illegal use of force.
In section I, I give an overview of the context of humanitarian interventions. In Section II, I summarize the legal foundations for the traditional use of force and for humanitarian interventions. In Section III, I give three case examples of the use of humanitarian justifications for the use of force including: India’s intervention in Bangladesh, NATO’s intervention in Yugoslavia, and Russia’s intervention in Ukraine. I Finally conclude, in Section IV, with a proposed solution to this problem of misuse. The solution will include (1) allowing the International Court of Justice to adjudicate the legality of humanitarian intervention, and (2) giving it a three-factor test to establish a framework that the ICJ may use in its adjudication. The three factors of the test include: (1) whether there exists a breach of the Genocide Convention, (2) whether the intervening state made a formal notification for its intervention, and (3) whether the intervention, from a reasonable observer, would result in a net-positive number of lives saved and not increase regional instability. For this test, if any of the three factors are not met, then the humanitarian justification is invalid.
"Truth. Regardless of Reconciliation?" by Michael Moffitt
Formal responses to historical injustices have typically taken one of two fundamental forms in the past hundred years. The first is a familiar, retributive style process in which an adjudicative body measures the conduct of alleged wrongdoers against some set of established standards. (Think Nuremberg Trials.) The second form is often labeled “alternative” in Western legal systems, despite its increasing prevalence within the past few generations. It focuses on broad inclusion, shared responsibility for the outcomes, and a forward-looking perspective on the next steps beyond or in lieu of traditional criminal sanctions. (Think South Africa’s Truth and Reconciliation Commissions.) Some cases of historical injustice on larger timescales, however, do not lend themselves neatly to either of these basic models. In these, clarifying foundational factual matters is essential, but testimony by people with first-hand knowledge of the incidents in question is impossible. What then?
This article takes up the case of the 1850 wrongful execution of five Cayuse Indians, men who became known as the Cayuse Five. The Five had been convicted of murdering Dr. Marcus Whitman in 1847, in what would eventually become the Oregon Territory. Their conviction came despite considerable evidence that some or all had no direct involvement, after a deeply problematic trial. Where the Five were buried is unknown, and that fact stands in the way of any prospect of a non-adjudicative process aimed at reconciliation, justice, healing, or whatever the living may deem the best course of action. After providing background on the under-told history of the Cayuse and white settlers in the mid-19th century, my article makes two arguments. First, I argue that the fact that the burial locations of the Cayuse Five remain unknown stands as an impediment to either an adjudicative or alternative response to this historical injustice. Establishing truth, to the best of our ability, is important regardless of any potential subsequent effort at resolution or reconciliation. Second, I argue that although this work is not focused on resolution, it nonetheless belongs under the broad umbrella of Dispute Resolution, Peacemaking, and Conflict Resolution. Although it does not share the familiar trappings of classic reconciliation or restorative processes, the Tribe’s ongoing search (as well as the assistance others are providing to them) is best understood through the lenses of ethics and practice within Dispute Resolution.