Law Review Articles-manual
With a Master's Degree in international business and communications from a global top 100 research university in her native Denmark, a JD from the University of Oregon School of Law (she was number one in her law school class), a PhD in political science on the way, and many years of professional legal writing and research, Professor Dellinger is eloquent, precise and prolific.
Thoroughly researched and cited, each of these articles could be a full PhD dissertation in many contexts. Her law review articles as well as her blogs are thought provoking, in-depth, yet linguistically approachable by both legal scholars and laypeople alike.
The “public bad” that is carbon pollution must be taxed and otherwise regulated into discontinuation since other steps have not yet solved climate change and may not. This article demonstrates that with the right amount of voter support, which exists, carbon taxation can be implemented in a progressive manner that ends up with the significant side benefit of alleviating poverty at the national or global levels. Thus, a “universal basic income” can be created through revenue recycling either within each jurisdiction or, with more buy-in than what is currently likely to be the case, at the global level at a later point in time.
To be effective, a carbon tax would have to start imminently and potentially at levels between $75-100 per metric ton of CO2 emissions. This would correspond to about $1 per gallon of gas, which seems impossibly high for voter and lawmaker buy-in. The internationalization of carbon costs currently lies at around $2 per ton. But in September 2021, a record 59% of Americans now say that they either “alarmed” or “concerned” about climate change. Only 19% are “doubtful” or “dismissive.” A December 2020 poll also showed that 66% of registered voters support making fossil fuel companies pay a carbon tax. If the right rhetoric is used and compensation is made to low-income earners, carbon taxation is entirely feasible. European and other examples show that the economy can grow while carbon taxes are rising.
Other steps than mere taxation may also be applied in tandem. Thus, existing cap-and-trade systems may become known as a “cap and tax” system.
This article points out how correct carbon pricing can be implemented and how to do so to avoid the political and other minefield that looms.
COVID-19 is wreaking havoc around the world and is likely to continue doing so for the foreseeable future. The virus virtually brought airline travel around the world to a standstill soon after it broke out. In the United States, the airline industry was quick to ask for, and get, a sizeable bailout from the U.S. Senate. But the other global killer that has unfortunately taken a back seat to the coronavirus pandemic remains climate change.
The traditional debate between “a decade or so” (per IPCC) and “very soon” to curb climate change is largely irrelevant; we know that we have to act expeditiously to avoid potentially disastrous climate change. All industries, sectors, and nations play a role in this. That includes the American airline industry as well.
This article proceeds as follows. The airline industry’s financial situation for the past ten years will be examined first as background for the airline industry’s request for bailout. The industry enjoyed a decade of profitability records, but is not one known or expected, so far, to set aside funds for worsening times such as the sudden problems brought about by COVID-19.
Next, other recent large-scale bailouts in the transportation sector and beyond as well as federal transportation rules in connection with the auto industry bailout after the 2008 financial crisis will be explored. This will show that the 2020 airline bailout was undertaken with few requirements imposed on the airline industry and certainly none in relation to climate change. This is, of course, a problem in times of ever-worsening temperature increases and action being necessary from all angles and at all scales of private and public governance.
The article then lists requirements that could have been imposed on the industry for it to obtain the sizeable bailout that it did. If further bailout efforts or other government assistance is given to the airline industry inSeptember 2020, when the first measures run out, or later, numerous ideas exist for how the industry could be required to take steps to mitigate or at least help the surrounding world adapt to climate change to which the industry contributes in not insignificant ways.
The article concludes that while the $60 billion bailout was bipartisan and, perhaps, had to be implemented in a fairly rapid manner because of the importance to our national transportation infrastructure for both private individuals as well as businesses, this would have been a perfectly opportune time to impose climate changeregulations on an industry that still, despite its known contributions to the problem and the readily available knowledge about the extreme urgency of alleviating climate change, has largely ignored its role in this context. The airline industry has for decades benefited from the 1978 airline deregulations. Re-regulations for climatechange are now in order.
Published in Northern Kentucky Law Review, Vol. 47, No. 2, 2020
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As climate change worsens, so does the risk of wildfires. This is especially so in already hot, dry areas such as the western United States. Adding to this problem is the rapid growth of the wildland-urban interface (WUI). As more and more houses are built in the WUI, wildfires will pose an even greater risk to lives and homes, they will be harder to fight, and letting natural fires burn will become impossible. This article argues that end-consumers who live in the WUI should, to a much greater extent than is currently the case, internalize the full costs of their choices and actions under principles of environmental justice and other notions of fairness in law and policymaking.
Published in Environmental Law Reporter, Vol. 49, No. 11, 2019
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Climate change is as vexing a problem as ever. Around the world, plaintiffs are taking steps to fight climate change through lawsuits against both governments and corporate entities, among other steps. At times, such lawsuits may seem somewhat tenuous, but litigation spurs progress. Actions to stem the dangers of climate change need to be taken on many fronts and in many stages without deterrence from the enormity of the task. This article analyzes whether the 1789 Alien Tort Statute (“ATS”) is a realistic mechanism to provide redress for climate change-related international human rights violations and related violations of international environmental law by American corporations, which have continued their climate-changing activities in the United States and elsewhere decades after becoming aware of their inherent danger.
This Article concludes that ATS litigation may be an option worth pursuing in the legal fight against climate change as the ATS is a vehicle geared towards tort compensation where U.S. national interests would be affected if the aggrieved parties received no compensation. Indeed, any lawsuit or action that, if nothing else, helps call attention to and eventually mitigate climate change is highly warranted. Ultimately, however, an ATS-based suit against American corporations for climate-change damages may be unlikely to succeed under the current Supreme Court composition. But that could and will change as well.
Published in the Columbia Journal of Environmental Law, Vol. 44, No. S
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It seems so obvious: you don’t save rare animals by shooting them. Yet, trophy hunters stubbornly argue that this is just the case. They claim that their hunts help raise awareness about species extinction and that the money they pay for the hunts helps conservation efforts and contributes to local economies. Conservationists point out that these arguments are not based on solid proof and that trophy hunting – the killing of big game for taxidermied body parts or photos with the killed animal, typically in Africa – fails to account for the fact that rare animals have a much higher value alive than dead, not to mention the interest by virtually everyone in safeguarding the species for the long run.
Climate change is one of today’s most significant and complex problems. The number and level of severity of extreme weather events is increasing rapidly around the world. One year after the next, we learn that heat records have been broken once again. Climate change has been traced to a wide range of severe problems around the world, ranging from the obvious damage caused by hurricanes, floods, extreme rainfall, prolonged droughts, wildfires and a host of other weather-related issues to the perhaps less obvious such as physical and mental illnesses, “civil unrest, riots, mass migrations and perhaps wars caused by water and food shortages.” “It is no longer rationally debatable that climate change will take a huge toll on human health and prosperity as well as pose significant risks to national security if it is not curbed.”
Science has demonstrated that human activity is “extremely likely” to have contributed significantly to this increasingly volatile and problematic weather situation. At the same time, the developed nations that, to a very large extent, caused the climate change problem also clearly indicated in the negotiations leading up to the new Paris Agreement on climate change, as well as in the Agreement itself, that they are not willing to accept financial liability for any loss and damage caused by climate change. The matter is, at bottom, one of an alleged lack of sufficient resources and a similarly alleged inability to correctly apportion liability for the problem along with, of course, lack of political will to undertake legal responsibility for the financially severe consequences that are likely to arise because of climate change.
However, financial liability for loss and damage caused by severe weather events may arise not only under the United Nations Framework Convention on Climate Change (UNFCCC) regime, but also under established notions of customary international law such as the “no harm” rule, which creates a duty not to allow one’s territory to be used in ways that cause harm to other states. In this context, nation states may seek to avoid a finding of legal wrongfulness under the force majeure, necessity, or distress doctrines of law. This article analyzes whether nations will be able to do so and critiques the arguments that are likely to arise in invoking these defenses. Many of the arguments that have traditionally been viable and that made legal (as well as practical) sense no longer do so given modern knowledge about climate change and its causes and effects.
The article proceeds as follows: The history of the excuse doctrines that could and are applied in the context of “severe weather” will be briefly described to create a view of current law in the light of its development over time. Similarly, the traditional legal distinction between “man” and “nature” will be examined as this differentiation, at worst, no longer makes sense in relation to climate change and, at best, is one without significance. Because this article solely addresses the excuse doctrines that may apply to legal liability on nation states in the climate change context, the Paris Agreement on climate change (the “Agreement”) becomes relevant as it would have been fair and equitable to apportion loss and damage under this Agreement. However, as the Agreement explicitly states that developed nations will not be liable for loss and damage under the treaty provisions, the article will proceed to analyze alternative theories of nation state responsibility for internationally wrongful acts. Finally, the article critiques the modern potential applicability of these doctrines for reasons of law and public policy.
Published in Pace Law Review, Volume 37, Issue 2 (Spring 2017)
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“Extreme” weather has become the new normal. What were previously considered to be inexplicable and unpredictable “acts of God” can no longer reasonably be said to be so. They are acts of man. The established doctrine of contractual impracticability rests on the notion that a party may be exculpated from contractual liability if supervening events have rendered a performance impracticable unless the party has implicitly or explicitly assumed the risk of the event. To a large extent, courts still consider the foreseeability of the event and an affected party’s ability to control it. However, it makes little logical or legal sense to continue to allow parties to escape liability for weather events that are in fact highly foreseeable given today’s knowledge about the causes and effects of severe weather. Some parties may even be found to have been in some “control” of the development of the adverse weather situation and thus not be able to avoid contractual liability.
This article proposes taking a new, hard look at the doctrine of impracticability and the closely related doctrine of frustration of purpose. By modernizing these doctrines to reflect current on-the-ground reality, the judiciary may further help instigate a broader awareness of the underlying problem and need for corrective action against climate change at both the private and governance scales. Meanwhile, a more equitable risk-sharing framework should be implemented where contracting parties have failed to reach a sufficiently detailed antecedent agreement on the issue.
The law is never static. It must reflect real world phenomena. Climate change is a highly complex problem that requires attention and legal solutions at many fronts to many problems including contractual performance liability. The general public is often said to have lost faith in the judiciary. Given this perception, courts could regain some of that faith in the context of events for which no “God,” other supernatural power, or even nature can be blamed.
Published in Hastings Law Journal, Vol. 67 (2016), Issue 6
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In “trophy hunting” agreements, wealthy individuals, typically from the Global North, pay locals such as guides or landowners, typically in the Global South, to assist with the planned hunt of rare — if not outright threatened or endangered — species such as lions, polar bears, black rhinoceroses, and giraffes for a fee as a private contractual arrangement. A well-known example is the kill of “Cecil the Lion” in the summer of 2015. American dentist Walter Palmer paid local Zimbabweans $55,000 for their assistance. In other cases, hunters have obtained government permits to kill and import a rare animal. Allegedly, trophy hunts contribute to local economies and can help raise money and awareness for species conservation. However, serious doubt has arisen as to the effectiveness of trophy hunts on society’s ultimate goal — undisputed by trophy hunters — of conserving rare species. The “shadowy subculture” that is trophy hunting is one that attempts to make what is unacceptable to the general public sound acceptable under the guise of euphemisms and questionable facts. While such discussions continue, more and more of the very last few specimens of several rare species are killed for “sport.” As a society, we cannot allow trophy hunting of wild, rare animals to proceed given the uncertainty surrounding the effects of the practice and the reprehensibility of it to society. Under the Precautionary Principle of Law, nations must err on the side of caution and protect the environment where there is solid scientific doubt about the viability of a given practice. This is the case with trophy hunting. At least until there is reliable evidence that trophy hunting truly helps species conservation, the practice should be banned.
Contracts that are considered “unsavory,” “undesirable,” “at war with the interests of society,” or “in conflict with the morals of the time” may be declared unenforceable for reasons of public policy by common law courts regardless of whether or not any underlying legislation provides that the contractual conduct is illegal. Allowing wealthy individuals to kill some of the very last few specimens of rare species for “sport” has become so distasteful to the general public that the time has come for courts to declare such contracts unenforceable for reasons of public policy. This Article demonstrates how this can be accomplished.
The Article also examines the wildlife-protective capabilities of the public trust doctrine and the closely related state ownership of wildlife doctrine. These doctrines add further weight to the contractual argument, but also operate as stand-alone protective doctrines. To be able to present any of these arguments to a court of law, standing is a hurdle, but one that can be overcome. This Article highlights how this might be done.
Restrictions on trophy hunting also finds support in international trade law. A recent “watershed case” issued by the WTO “reveal[s] that the WTO appreciates the growing worldwide awareness that animal welfare is an ethical concern that may in certain cases trump free trade” and, notably, that public morals can and should be considered as well. The case involved an EU regulation that prohibited placing any seal products from any countries on the internal market. The prohibition was passed as a result of the EU Parliament’s careful consideration of the EU citizens’ moral concerns surrounding the slaughter and scientific evidence regarding the inhumane hunting methods used to kill seals. The WTO Panel found that the EU measure fell within the ambit of “public morals” under Article XX(a) of GATT and that the “public morals” in connection with seal hunting is a legitimate objective pursuant to the Agreement on Technical Barriers to Trade. The Panel acknowledged that “animal welfare is an issue of ethical or moral nature” and that “animal welfare is matter of ethical responsibility for human beings in general.” The WTO Appellate Body agreed with the Panel decision. It even found that the measure did not go far enough in achieving its objectives. The explicit recognition of the importance of animal welfare by the WTO is considered unprecedented. Since the WTO has now recognized that animal welfare is an ethical concern to be considered and that the protection of public moral concerns in relation to animal welfare is a legitimate objective that can justify trade restrictions, countries have a broader basis upon which to legislate in this field. Further, there is now clear case precedent for taking animal welfare issues into account in the trade regime as well as in national courts. WTO concerns for the animals themselves could support arguments that the remaining populations suffer from the loss of their alpha leaders as well as potential extinction, which could be argued to be a broader welfare issue. With lions, for example, other males have been known to destroy entire an entire generation of cubs in order to be able to insert their own genes into the gene pool and eradicate the genes of the deceased leaders. That is a harsh anthropogenically induced and, arguably, unnecessary result caused by trophy hunting because it has the above-mentioned negative effects on the gene pool in general. Evolution supports the reproduction by alpha animals. Trophy hunting tinkers with that at the risk of worsening the species. Further, although the WTO has been subject to some warranted criticism of the effects of GATT and WTO rules on species and the environment in general, WTO cases and other documentation does support species and environmental protections. This relates to international trophy hunting and trophy import/export agreements too, to the extent, of course, that the WTO is implicated in the first place. Perhaps most importantly, the WTO case demonstrates that at least trade tribunals may take the public outcry surrounding animal cases into consideration. “As society’s abhorrence of the systematic mistreatment of animals in industry rises to the level of a public moral concern, citizens will increasingly pressure their governments to ensure that animals are treated humanely by these industries.” Trophy hunting is an industry as well and may thus be affected by this case. With the seemingly increasing public sentiment against trophy hunting, both legislatures and courts now have grounds on which to rely for weighing the interests of both the public and the affected animals against the typical trade protection interests and purely monetary arguments.
Published in Columbia Journal of Environmental Law Vol. 41, No. 3
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The world needs a supranational-level solution to climate change within very few years. Nonetheless, much existing scholarship almost stubbornly continues to promote solutions that are still too broad to be viable within a realistic timeframe. This article breaks with these theories and posits that effective climate change action can be instigated by a much lower number of nations than what has been promoted thus far, and that this is the only realistic solution in the scientifically proved timeframe in which catastrophic climate change can still be avoided.
Such minilateralism among fewer nations is a more realistic solution with greater potential for more targeted and effective results. However, a crucial question remains to be answered in this context: what is the “magic number” at which a supranational governance system is the most likely to be able to develop a solution that not only has some substantive effect, but that can also act as a catalyst for further treaty membership increase and/or replication in other contexts? This article provides the answer: It is three. The United States, China, and the EU, and Brazil or India will be able to move forward the agenda that was reinvigorated in 2012 when negotiations to develop a successor treaty to the now-expired Kyoto Protocol got back on track at the meeting of the parties to the United Nations Framework Convention on Climate Change (“UNFCCC”).
In providing this answer, the article critically examines a few of the world’s most successful treaties. Some of these have unfortunately become largely forgotten about in today’s rush to what seems to be an attempt to reinvent the treaty wheel. They provide important lessons to learn for anyone interested in international environmental law.
Published in Fordham International Law Journal, Volume 37, Issue 2 (2014)
View/download entire law review article: ssrn.com, Fordham Int’l L. J.
This article argues that bottom-up, polycentric developments within national and international environmental and human rights law present potent alternatives to traditional top-down solutions, especially in relation to problems that require urgent legal action such as climate change. The article does not suggest that traditional solutions are no longer called for. Rather, it promotes action from both angles.
By way of background, the article briefly examines what “law” is, how law is more and more frequently developed at the local level with public participation (i.e. from the “bottom up”) as well as the pros and cons of such development. The article describes the recognized interface between severe environmental problems and human rights issues. It then presents the findings of the author’s original research into how human rights and climate change issues are attacked in innovative ways and from the bottom up in four select American cities and in London, England.
Many scholarly articles have written lamenting the lack of scaled-up action within both human rights and, especially, environmental law. This article presents new value by setting forth guidelines and principles for bottom-up approaches to legal problems in these areas. Scholars, policymakers and legal practitioners may benefit from this research.
Published in Oregon Review of International Law, Vol. 15, Issue 2 (2012)
View/Download entire law review article ssrn.com, University of Oregon Scholar’s Bank