Faculty Bibliography
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On the same day that Juneteenth was announced as a U.S. national holiday to honor the end of legalized slavery in the United States, the Supreme Court ruled that claims involving Nestlé USA’s complicity in the enslavement of children in the cocoa industry could not proceed under the 1789 Alien Tort Statute (ATS) because most of the allegations involved conduct outside the United States. While the decision was the latest setback for human rights cases, it also highlighted the connection between historical legacies and contemporary debates that have been ever-present in modern ATS jurisprudence. This Essay grapples with this living history and specifically the questions of extraterritoriality and U.S. corporate-actor liability under the ATS. History—including newly unearthed materials from George Washington’s presidency—makes clear the Founding generation was concerned with providing remedies for actions by private U.S. subjects that might embroil the country in foreign-affairs problems or undermine the nation’s status among “civilized” nations. This historical concern with U.S. nationality jurisdiction is glaringly absent from not only the Court’s holding in Nestlé but also its discussion. But the Nestlé corporation’s nationality almost certainly mattered. Otherwise, the Court could have simply extended an earlier holding that causes of action against foreign corporations were not permitted under the ATS. In considering this proposition, the Essay looks past Nestlé’s narrow extraterritorial ruling and interrogates the importance of the yet-to-be answered relevance of U.S. nationality in future ATS jurisdictional analysis. The Essay concludes that U.S. subject liability remains possible and would bring the Court back in line with the clear eighteenth-century historical paradigm on the question of U.S.-actor liability.
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Using climate-induced displacement in the United States as an example, this chapter puts forth ideas that climate change resiliency, which has primarily focused on impacts to social-ecological systems, should be expanded to include ‘governance resiliency’ – the resilience of governance itself, or the processes through which impacts and effects are managed. Climate change governance has largely focused on spatial relationships, including vertical, multi-layered ones from the local to international levels, and horizontal relationships among various governmental and non-governmental actors. With effects as prevalent, long-lasting, and regressive as those arising from climate change, however, this spatial approach lacks two governance dimensions: the temporal, and the more imperceptible structural dimension, which is connected to systemic marginalisation commonly associated with inequality, poverty, and discrimination. The chapter analyses the spatial, temporal, and structural dimensions together through five fact scenarios that consider sudden and gradual changes as well as decisions not to govern. In considering such multidimensional governance and the scenarios, this chapter argues that transformative governance, or what we refer to as transformative resiliency, is required to address systemic inequities and to achieve sustainable governance resiliency.
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On January 3, 2019, U.S. District Judge Theodore D. Chuang of the U.S. District Court of the District of Maryland took a crucial first step in redressing one of the worst human subjects research ethics violations in U.S. history.
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Tyler Giannini, Challenges of Climate Change Displacement are Numerous, 17 Insights on L. & Soc’y 13 (2017).
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The article discusses issues related to migration and international human rights such as several challenges associated with climate change displacement, ranging from the scale of the problem to questions of causation and responsibility to the need to produce frameworks that can address issues on acute, immediate impacts, such as hurricanes, and long-term, gradual effects, such as slow-onset desertification. It also discusses refugee protection and humanitarian efforts.
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In December 2005, South Africa's National Prosecuting Authority (NPA) promulgated a controversial policy on the prosecution of apartheid-era crimes, sparking renewed debate about such prosecutions and their role in the transition to democracy since 1994. The book presents a diverse collection of perspectives on prosecutions in South Africa, including a foreword by playwright and actor John Kani. Other reflections from former Truth and Reconciliation Commission (TRC) commissioners, survivors of apartheid, civil society members, and government officials outline the serious questions facing South Africa as it deals with prosecutions today. The book traces the history of the prosecutions in South Africa including their relationship to the TRC and a recent legal challenge that asserts the NPA policy is an unconstitutional re-run of the TRC amnesty process. Throughout, the book highlights the important themes related to any post-conflict prosecution scheme including rule-of-law concerns, questions of evenhandedness and moral relativism, competing priorities and resource allocation, the limits of a court-centered approach to justice, and the potential transformative power of prosecutions.
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Jed Greer & Tyler Giannini, Earth Rights: Linking the Quests for Human Rights and Environmental Protection (EarthRights Int'l 1999).
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