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Gender, conflict and the environment
Both gender and the environment have traditionally been positioned at the periphery of international humanitarian law (IHL). In recent decades, there has been important progress in moving both concerns closer to its centre; to date, however, an understanding of the intersection of gender and the environment in the legal regulation of armed conflict remains largely underdeveloped. Nevertheless, as the present article documents, there are important similarities in strategies pursued to advance both gender and the environment from the periphery to the mainstream of IHL, namely: first, a focus on sources of IHL, in particular concretizing arguably limited specific treaty content with interpretive guidance and implementation frameworks; second, a conceptual critique of prevailing definitions of \"harm\" in IHL; and third, advancing, through close empirical documentation and household-level analysis of conflict's effects, understandings of harm that capture so-called \"second-round\" effects of conflict. Recognizing these important affinities between gender and environment work in IHL, this article draws on these insights to propose a typology of gendered environmental harm in conflict. The article concludes with proposals for enhancing the legal and operational capture under IHL of the gender-conflict-environment nexus.
Journal Article
Merely Judgment
Merely Judgmentuses affirmative action in government contracting, legislative vetoes, flag burning, hate speech, and school prayer as windows for understanding how Supreme Court decisions send signals regarding the Court's policy preferences to institutions and actors (such as lower courts, legislatures, executive branches, and interest groups), and then traces the responses of these same institutions and actors to Court decisions. The lower courts nearly always abide by Supreme Court precedent, but, to a surprising degree, elected branches and other institutions avoid complying with Supreme Court decisions. To explain the persistence of unconstitutional policies and legislation, Sweet isolates the ability of institutions to derail the litigation process. Merely Judgment explores the mechanisms by which litigants and their peers have escaped from the clutches of litigation and thus effectively ignored, evaded, and trumped the Supreme Court.
eBook
Legitimacy and legality in international law : an interactional account
\"It has never been more important to understand how international law enables and constrains international politics. By drawing together the legal theory of Lon Fuller and the insights of constructivist international relations scholars, this book articulates a pragmatic view of how international obligation is created and maintained. First, legal norms can only arise in the context of social norms based on shared understandings. Second, internal features of law, or 'criteria of legality', are crucial to law's ability to promote adherence, to inspire 'fidelity'. Third, legal norms are built, maintained or destroyed through a continuing practice of legality. Through case studies of the climate-change regime, the anti-torture norm, and the prohibition on the use of force, it is shown that these three elements produce a distinctive legal legitimacy and a sense of commitment among those to whom law is addressed\"-- Provided by publisher.
Book
Responding to alternatives
This Article is the first to comprehensively analyze administrative agencies' obligation to respond to alternatives to their chosen course of action. The obligation has been around at least since the Supreme Court's decision in Motor Vehicle Manufacturers Ass'n of the United States, Inc. v. State Farm, and it has mattered in important cases. Most recently, the Supreme Court invoked the obligation as the primary ground on which to invalidate the Trump Administration's rescission of the Deferred Action for Childhood Arrivals (DACA) program. The obligation to respond to alternatives is also frequently invoked in the lower courts and in the D.C. Circuit in particular. But courts lack a consistent framework for analyzing the obligation, providing agencies with little guidance regarding which alternatives require analysis as part of their decisionmaking process. And to the extent that the obligation allows courts a backdoor opportunity to flyspeck agencies' policy analysis, it runs the risk of displacing agencies' expert judgments for the courts' own, often informed only by the parties' briefing.
This Article interrogates the obligation to respond to alternatives and proposes a more stable framework for its implementation. After rooting the obligation in agencies' general obligation to give reasons for their actions and in the values associated with agency reason-giving, the Article turns to two questions. First, to which alternatives must agencies respond? And second, what counts as a response? In answering these questions, the Article draws on broader goals associated with administrative law, which include not only promoting the values associated with reason-giving but also respecting the need for agencies to perform their tasks effectively and within a relatively stable system of judicial review that recognizes their comparative expertise advantage over the courts. In addition, it seeks to develop a framework that fits with and helps to explain the results in most cases invoking the obligation to respond to alternatives. At the same time, the framework allows us to more clearly identify occasions where courts have reached incorrect results or been overbroad in their framing of the obligation to respond to alternatives.
Journal Article
Constitutional law: Jones v. Governor of Florida
Constitutional law - Equal Protection - Eleventh Circuit upholds statute limiting constitutional amendment on felon reenfranchisement.
Journal Article
Introduction
In American law schools, first-year students learn about the basic obligations of private law through two required classes: contracts and torts. For the most part, those students do not learn about a third source of obligation: unjust enrichment. This obligation rests on a simple premise - that \"[a] person who is unjustly enriched at the expense of another is subject to liability in restitution.\" While money damages in tort actions seek to make plaintiffs whole for losses suffered as the result of a defendant's wrongdoing, restitution for unjust enrichment imposes liability based on the defendant's gain - regardless of a defendant's blameworthiness. These principles are relatively straightforward on their face. But unjust enrichment has struggled to establish a consistent place for itself within American legal thought. This is a missed opportunity for judges, practitioners, and litigants, for whom taking unjust enrichment seriously could have dramatic consequences. In this edition of 'Developments in the Law', we make a case for reviving this forgotten principle, both as a worthy subject of legal scholarship and as a valuable addition to the advocate's toolkit.
Journal Article
Advancing Children’s Rights Through the Arts
Although the Convention on the Rights of the Child is the most widely ratified human rights treaty, threats to children's rights persist globally. One reason is that states have not met their threshold obligation to ensure that children's rights are widely known, so that they may be respected and ensured. This article argues that an important way to disseminate children's rights among children and adults is to partner with the arts. The article examines the benefits of a partnership between children's rights and the arts and discusses the key elements of a children's rights approach to the arts, as well as challenges to address.
Journal Article
CYBER OPERATIONS AND THE STATUS OF DUE DILIGENCE OBLIGATIONS IN INTERNATIONAL LAW
This article adopts a critical approach towards scholarship seeking to identify binding due diligence obligations for States in cyberspace. The article demonstrates that due diligence obligations are anchored in specific primary rules and are not a universal standalone source from which it is possible to derive binding obligations for all areas of activity. The consensus position of States in United Nations fora clearly determines that due diligence in cyberspace is a voluntary, non-binding norm of responsible State behaviour, and there is currently insufficient State practice and opinio juris to support the development of a customary rule containing binding due diligence obligations in cyberspace. Consequently, the article concludes that attempts to establish binding due diligence obligations in cyberspace constitute lex ferenda that may be understood as an interventionist attempt by scholars to fill what they perceive to be dangerous legal gaps.
Journal Article