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.

Airline Bailouts and Climate Change Re-Regulation

By Myanna Dellinger | September 9, 2020 | 0 Comments

Abstract

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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Electric Utility Wildfire Liability Reform in California

By Myanna Dellinger | November 11, 2019 | 0 Comments

Abstract

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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Environmental Law Reporter, Vol. 49, Nov. 11, 2019

Trophy Hunting — A Relic of the Past

By Myanna Dellinger | March 10, 2018 | 0 Comments

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.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3137742

Using Dogs for Emotional Support of Testifying Victims of Crime

By Myanna Dellinger | September 9, 2009 | 0 Comments

Abstract

Across the country, courts and prosecutorial offices have begun to use dogs to assist victims of crimes who but for the demonstrated calming presence of a dog would be too emotionally distraught to give live testimony in trials against their alleged perpetrators. The use of service animals for this purpose has proven particularly useful for young children. 

This article examines the budding use of this type of therapeutic jurisprudence in the criminal justice system. Recognizing that using dogs for emotional support during trial finds no clear recognition under the law yet, the article analyzes how proponents may draw analogies to the current use of comfort items such as dolls during the presentation of testimony. 

The article concludes that sound legal and public policy reasons exist for allowing the use of service dogs to assist emotionally traumatized witnesses giving testimony in open court, but only in cases where the witness can present a truly compelling need for such support.

Published in Animal Law Review, Vol. 15, No. 2, 2009

View/download entire law review article: ssrn.com

Lioness

Trophy Hunting Contracts: Unenforceable for Reasons of Public Policy

By Myanna Dellinger | August 1, 1016 | 0 Comments

Abstract

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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