Nonhuman Personhood: Recognizing Liberty Interests for Highly Sentient Animals

2023, Current Issue, Print, Volume 55 (2023) Issue 4 (Winter)
By Mackenzie Holden. In 2003, relatives of a deceased elephant were seen pushing and pulling her body for nearly a week following her death. In 2016, footage captured a group of elephants standing over the dead body of an elephant they knew, seemingly mourning her. In fact, elephants, known for their complex social bonds and familial relationships, have been observed grieving their dead in numerous instances. For example, researchers have seen elephants scattering their family members’ bones, raising a foot over and lightly touching an elephant body with their trunks, and lingering near an elephant carcass for prolonged periods of time. Indeed, elephants, having the largest relative cerebellum size of all mammals, possess intelligence comparable to chimpanzees and have complex social behaviors. Full Article.
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Unifying Outer Space: Creating a Cohesive Structure Surrounding Mining on the Moon

2023, Current Issue, Print, Volume 55 (2023) Issue 4 (Winter)
By Alex S. Li. In light of the renewed global interest in Earth’s sole natural satellite, this Article ventures into the intricate legal dynamics shaping the development of a lunar mining industry.It starts by illuminating how various models of Outer Space governance can influence three critical aspects of lunar mining: (i) resource ownership rights, (ii) adherence to a non-interference policy, and (iii) commitment to environmental protection. The analysis encompasses a range of legal structures, including (a) the U.N. Outer Space treaties; (b) Alliance-based frameworks such as the Artemis Accords led by the United States, the International Lunar Research Station driven by China, the Principles proposed by the Moon Village Association, and the Building Blocks Framework spearheaded by the Hague International Working Group; as well as (c) national legislations related to space…
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What Gets Measured Gets Managed: The Case for Bypassing Notice-and-Comment Rulemaking for Measure Maintenance

2023, Current Issue, Print, Volume 55 (2023) Issue 4 (Winter)
By Ashley Liu. Suppose that Aaron is an ophthalmologist who lives and works in the San Francisco Bay Area. In his flourishing private practice, Aaron mostly performs routine cataract surgeries. This is perhaps unsurprising, as cataract extractions are some of the most commonly performed surgical procedures. For every cataract surgery, Aaron always follows a detailed checklist and has at least one assisting staff member.Now, suppose that Daniel is another ophthalmologist who lives in relatively rural Amherst, Massachusetts. Daniel does not employ any nurses or anesthesiologists; he operates alone. Also, because Daniel performs cataract surgeries significantly less often than Aaron, he has no standardized operating procedures.Aaron and Daniel both make a living by performing the same twenty- minute cataract extraction procedure, but they vary dramatically in how they do so. Similar variation…
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Chapter 11’s Inclusivity Problem

2023, Current Issue, Print, Volume 55 (2023) Issue 4 (Winter)
By Sarah Paterson & Adrian Walters. This Article rests on four premises: (i) that modern market participant frequently seek legal tools to compromise selected liabilities and not all the liabilities of the firm; (ii) that it is difficult to achieve a selective corporate restructuring in Chapter 11 given its inclusivity; (iii) that selective corporate restructuring strategies are normatively desirable but must only be permitted within strict boundaries; and (iv) that U.S. practitioners have worked around the challenges which Chapter 11’s inclusivity poses to selective strategies but sufficient boundaries have not been placed around these workarounds. While restructuring of long-term financial liabilities is the prime example of a selective restructuring strategy, the Article demonstrates that it is far from being the only one. Thus, the Article represents the first attempt to join…
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Subordination Through Schedules

2023, Current Issue, Print, Volume 55 (2023) Issue 4 (Winter)
By Nicole Buonocore Porter. Our jobs are not only about the work we do—they are also about when and where we do that work. For a variety of reasons, employees with disabilities often seek modifications of their employers’ policies regarding when and where work is performed. These accommodations are often necessary for the employee to remain employed. The Americans with Disabilities Act (“ADA”) requires employers to provide reasonable accommodations to employees with disabilities, and these accommodations can include schedule changes. But research demonstrates that when responding to accommodation requests under the ADA, employers are often reluctant to grant requests to modify the rules regarding when and where work is performed, seeing these rules as unalterable. If an employee sues under the ADA, courts usually side with employers, thereby not requiring the…
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Outlawing Corporate Prosecution Deals When People Have Died

2023, Current Issue, Print, Volume 55 (2023) Issue 4 (Winter)
By Peter R. Reilly. Two Boeing 737 MAX aircraft crashes, occurring less than five months apart in 2018 and 2019, resulted in 346 deaths—possibly the deadliest corporate crime in U.S. history. The United States Department of Justice (“DOJ”) used an alternative dispute resolution tool called a deferred prosecution agreement (“DPA”) to resolve criminal charges against Boeing and to immunize the company’s senior-level managers from prosecution. In the end, the company admitted to engaging in the criminal behavior, paid a monetary fine, and agreed to cooperate fully with the government—meaning there would be no courtroom trial, no formal adjudication of guilt, and no possibility of jail time or other serious punishment for wrongdoers. DOJ also decided it would not appoint an independent monitor to ensure Boeing’s compliance with terms of the DPA…
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People and Penguins: The Case for an Environmentally Conscious Property Law

2023, Current Issue, Print, Volume 55 (2023) Issue 4 (Winter)
By Shai Stern.  The development of environmental law starting in the mid-20th century involved constant tension with private property. Attempts to protect the dwindling natural resources, extinct species of animals, and ecosystems at risk have often encountered obstacles when they demanded interference with private property. Although the theoretical roots of private property do not justify its transformation into an environmental obstacle and, to a large extent, attach importance to environmental values in justifying private property rights, it was private property that stood at the forefront of legal conflicts that revolved around attempts to expand the environmental protection of natural resources. Full Article.
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Panoramic IDEA: Cabining the Snapshot Rule in Special Education Disputes

2023, Current Issue, Print, Volume 55 (2023) Issue 4 (Winter)
By Jennifer N. Rosen Valverde.  In special education disputes, post-hoc evidence—i.e., evidence that was not available to a school district at the time it acted, failed to act, or made the decision at issue—matters. For many families of children with disabilities, post-hoc evidence is the primary and, in some cases, only proof that a school district violated the Individuals with Disabilities Education Act (“IDEA”), which guarantees students with disabilities the right to a free and appropriate public education. Exclusion of this evidence deprives children with disabilities and their parents of their due process rights and remedies, with disproportionate adverse effects on families with limited financial means. Despite the critical function that post-hoc evidence plays in demonstrating an IDEA violation, some circuits bar its consideration in certain types of special education…
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The Experience of Structure

2023, Current Issue, Print, Volume 55 (2023) Issue 4 (Winter)
By Justin Weinstein-Tull.  How do we experience constitutional structure? We understand structure—federalism and the separation of powers—as the ordering of governmental bodies. Rarely, however, do we ask how those structures affect our daily lives. Courts treat this question abstractly, if they address it at all. They assert that federalism and separation of powers create “liberty” for individuals without specifying what that liberty looks like and who enjoys it. They speculate about the values of federalism and the normative virtues of the separation of powers. This is structural reasoning that sounds in human experience, but it is empty, based on little more than conjecture. The consequence is a faulty jurisprudential logic that permits courts to diminish federal rights for specific individuals in favor of uncertain, speculative, and generalized structural benefits that…
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