Texas A&M Law Review最新文献

{"title":"(The Act of) God’s Not Dead: Reforming the Act of God Defense in the Face of Anthropogenic Climate Change","authors":"Zachary David Fechter","doi":"10.37419/lr.v11.i3.6","DOIUrl":"https://doi.org/10.37419/lr.v11.i3.6","url":null,"abstract":"Natural phenomena like floods, droughts, and blizzards have a long history of causing damage. But these natural phenomena are now more frequent, intense, and therefore, foreseeable because of anthropogenic, or human-caused, climate change. Owing in part to the greater foreseeability of natural phenomena like weather, scholars believe the act of God defense—which excepts actors from liability when an unforeseeable and irresistible natural phenomenon is the proximate cause of damage—may be dead. Other scholars go further and argue the act of God defense should be dead, as corporate defendants can use it to evade liability even when their acts causally contribute to climate change. Despite the strength of these scholars’ arguments, those highlighting and even advocating for the demise of the act of God defense overlook the possibility that eliminating the defense will unfairly expose everyday people to liability. This Comment thus addresses scholars’ valid concerns with the act of God defense in light of climate change, examines arguments for why the defense should be excised from the law, and then argues that keeping but modifying the defense is the best way to address criticisms without unjustly harming everyday people.","PeriodicalId":174752,"journal":{"name":"Texas A&M Law Review","volume":"37 10","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141047323","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Self-Defense and Political Rage","authors":"Erin Sheley","doi":"10.37419/lr.v11.i3.4","DOIUrl":"https://doi.org/10.37419/lr.v11.i3.4","url":null,"abstract":"This Article considers how American political polarization and the substantive issues driving it raise unique challenges for adjudicating self-defense claims in contexts of political protest. We live in an age where roughly a quarter of the population believes it is at least sometimes justifiable to use violence in defense of political positions, making political partisans somewhat more likely to pose a genuine threat of bodily harm to opponents. Furthermore, the psychological literature shows that people are more likely to perceive threats from people with whom they politically disagree and that juries tend to evaluate reasonableness claims according to their own political positions. All three of these phenomena create challenges for the rule of law due to the increased risk that factually similar cases will turn out differently and that the justice system will merely recreate the monomaniacal, us-versus-them polarization of society at large. This Article surveys the relevant political science and psychological literature on partisanship and reasoning and proposes two interrelated solutions: one pragmatic, at the level of individual trials, and the other cultural, at the level of social discourse. It suggests that judges import what we know about the distortive effects of partisanship into the courtroom through the use of court-appointed psychological experts and jury instructions. Both have shown some success—if tailored precisely to the facts of a specific case—in correcting some forms of juror bias and reasoning errors. This Article further argues that incorporating these processes into the adjudication of politicized self-defense claims will have a broader, expressive value for society as a whole. Trials provide a model for truth-finding, which, for better or for worse, impacts how private citizens evaluate culpability in their day-to-day lives. If trials draw even some people’s attention to the ways in which partisan thinking can generate or justify acts of violence, they may be a force for moderation in how people deal with their political disagreements, which will have benefits far beyond the courtroom.","PeriodicalId":174752,"journal":{"name":"Texas A&M Law Review","volume":"42 3","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141029278","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Successive but Not Successful: Does the AEDPA Allow Federal Prisoners to Reassert Previously Presented Claims for Habeas Relief?","authors":"Michael P. Bitgood","doi":"10.37419/lr.v11.i3.5","DOIUrl":"https://doi.org/10.37419/lr.v11.i3.5","url":null,"abstract":"The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) unequivocally bars state prisoners from reasserting previously presented claims for habeas relief. Currently, the circuits are embroiled in a disagreement regarding whether the AEDPA also bars federal prisoners in the same way, and federal prisoners’ potentially viable claims for habeas relief hang in the balance. Prior to the Ninth Circuit’s decision in Jones v. United States, six circuits agreed that the AEDPA does bar federal prisoners’ previously asserted habeas claims, but the Sixth Circuit alone disagreed. Now, the Jones decision aligns the Ninth Circuit with the Sixth Circuit’s position. Through an in-depth analysis of Jones, this Note argues that Jones was rightly decided and that the AEDPA should not be construed to bar federal prisoners’ previously presented habeas claims. Since both textual analysis and sound public policy compel this conclusion, this Note proposes that the Supreme Court should adopt Jones’s holding to end this circuit split.","PeriodicalId":174752,"journal":{"name":"Texas A&M Law Review","volume":"115 2","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141035062","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Turning Point: Green Industrial Policy and the Future of U.S. Climate Action","authors":"Daniel A. Farber","doi":"10.37419/lr.v11.i2.1","DOIUrl":"https://doi.org/10.37419/lr.v11.i2.1","url":null,"abstract":"In the first two years of the Biden presidency, Congress passed three massive funding bills, which poured hundreds of billions of dollars into clean energy infrastructure, research and development, and deployment of clean energy. Although these bills are not what lawyers are accustomed to thinking of as “environmental law,” they have the potential to launch a transformation of the energy sector. This development could not have come at a better time, given the Supreme Court’s increasingly skeptical attitude toward federal regulation. \u0000Although the direct effect of these laws will be dramatic, this Article focuses on positive feedback loops that will amplify those direct effects. These feedback loops operate via impacts on innovation, regulation, and politics, all of which lead to expanded use of clean energy at the expense of fossil fuels. In turn, these impacts expand the production and use of clean energy, closing the feedback loops. Taking full advantage of these dynamics will require a more coordinated government effort, and this Article discusses a coordination method pioneered by some states.","PeriodicalId":174752,"journal":{"name":"Texas A&M Law Review","volume":"65 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141041318","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Left Behind: Funding Climate Action in the Global South","authors":"Chinonso I. Anozie","doi":"10.37419/lr.v11.i2.2","DOIUrl":"https://doi.org/10.37419/lr.v11.i2.2","url":null,"abstract":"Global clean energy transition envisions zero greenhouse gas emissions by 2050, as set by the United Nations. Consequentially, developed economies have made giant strides in reducing greenhouse gas emissions and achieving full decarbonization. However, the opposite remains true in the Global South, lagging in financing its climate action. Despite being disproportionately impacted by climate change, financial efforts by developed economies and the Global South have failed in placing the latter’s countries at par with clean energy investments of developed countries. Absent adequate financing of climate action in the Global South, the net zero goal will be nothing but a mirage. \u0000This Article contends that financial incapacity to finance climate change has left the Global South behind in the global energy transition movement and, if left unchecked, will sabotage global energy transition efforts. Using Africa as a case study, this Article explores the need to develop realistic financing options for global energy transition in the region. This Article recognizes that financing climate change is expensive and much more strenuous on African economies that barely have the fiscal infrastructure to finance the transition. It unpacks the extant climate financing avenues and the inherent challenges in attracting climate finance in Africa and argues for improvements.","PeriodicalId":174752,"journal":{"name":"Texas A&M Law Review","volume":"572 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141028335","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Climate Moratorium","authors":"Keith H. Hirokawa, C. Carlarne","doi":"10.37419/lr.v11.i2.3","DOIUrl":"https://doi.org/10.37419/lr.v11.i2.3","url":null,"abstract":"Climate change is our new reality. The impacts of climatic changes, including massive forest fires, floods, drought, severe storms, saltwater intrusion, and the resulting migration of people displaced by such impacts, will continue to ravage communities across the nation into the foreseeable future. In the meantime, communities continue to expand and growth continues unabated in many of the most climate-impacted areas. Given that most communities are unprepared for the onslaught of climate disasters and many continue to increase existing community vulnerabilities through unsustainable growth and development practices, we need legal tools that will provide space to engage in effective adaptation planning. The climate moratorium is one such tool. Moratoria, which have been used to temporarily halt development and associated impacts to facilitate effective land-use planning, have long been used by communities to address community and infrastructure vulnerabilities. This Article proposes a climate moratorium.","PeriodicalId":174752,"journal":{"name":"Texas A&M Law Review","volume":"8 5","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141039359","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"In Defense of 2.0°C: The Value of Aspirational Environmental Goals","authors":"Albert C. Lin","doi":"10.37419/lr.v11.i2.4","DOIUrl":"https://doi.org/10.37419/lr.v11.i2.4","url":null,"abstract":"Aspirational goals, such as the Paris Agreement’s goals of avoiding a global temperature increase of 1.5°C or 2.0°C, can be found throughout environmental law. Such goals, though sometimes unrealistic, perform important functions. They may serve as asymptotic directives that guide implementing entities; yardsticks to measure and evaluate progress; expressions of social values; and expanders of policy space. As asymptotic directives, aspirational goals may push actors to achieve more than they otherwise might accomplish. Incorporated into treaties or statutes, they can serve as guideposts for implementing concrete substantive and procedural requirements. With the passage of time, aspirational goals function as yardsticks for measuring progress and identifying needed adjustments and course corrections. Aspirational goals also express messages about society’s priorities while seeking to shape its values. While aspirational standards can deflect alternative approaches, weaken support for policy objectives, or mislead the public, they ultimately can expand the range of possible outcomes and motivate actions that achieve significant progress towards lofty aspirations.","PeriodicalId":174752,"journal":{"name":"Texas A&M Law Review","volume":"150 3","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141040766","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Carrots, Sticks, and the Evolution of U.S. Climate Policy","authors":"Brian Murray, Jonas Monast","doi":"10.37419/lr.v11.i2.5","DOIUrl":"https://doi.org/10.37419/lr.v11.i2.5","url":null,"abstract":"The Inflation Reduction Act (IRA), enacted by Congress in 2022, is the most significant federal investment in decarbonization in U.S. history. The law makes hundreds of billions of dollars available for clean energy tax credits, grants to state and local governments, and other financial incentives for public and private investments. The IRA’s focus on incentives, or “carrots,” marks a significant departure from the emphasis on prescriptive regulations and penalties, or “sticks,” that are prominent in federal and state climate policies that predate the IRA. This Article situates the IRA within the existing climate policy framework and explores the long-term impacts of the new law. \u0000The Article begins with an overview of regulations and tax incentives to reduce greenhouse gas emissions leading up to 2007. The Article then discusses the emphasis on pricing carbon through federal Cap-and-Trade legislation from 2003 to 2011, and the return to prescriptive regulation under the Clean Air Act when those federal bills failed. The Article contrasts these efforts with the positive financial incentives included in the IRA, tracking the evolution of the bill and the political and economic circumstances that created the policy window for Congress to pass such an impactful law. The Article concludes with a discussion of the lasting impacts of the IRA and the interplay between the existing policy instruments.","PeriodicalId":174752,"journal":{"name":"Texas A&M Law Review","volume":"2009 25","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141027104","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Evolving International Climate Change Regime: Mitigation, Adaptation, Reflection","authors":"Jonathan B. Wiener, Tyler Felgenhauer","doi":"10.37419/lr.v11.i2.6","DOIUrl":"https://doi.org/10.37419/lr.v11.i2.6","url":null,"abstract":"The complex international regime for climate change has evolved over the past three decades, from the Framework Convention on Climate Change and the Kyoto Protocol through the Paris Agreement and beyond. We assess this evolution from the 1990s to the 2020s, and its potential future evolution from the 2020s to the 2050s, across three main policy strategies: mitigation, adaptation, and reflection. In its first three decades, the regime has focused predominantly on the mitigation of net emissions and on engaging all major emitting countries in that effort. More recently, as progress on mitigation has been slow and as the impacts of climate change have risen around the world, the regime has begun to address adaptation. The next three decades may see the rise of a third strategy, reflection, if actors (collectively or unilaterally) perceive an urgent need to alleviate peak climate damages through fast-acting but controversial and risky climate interventions known as sunlight reflection methods or solar radiation modification (SRM). Several major international groups have recently issued reports on SRM, yet the international climate change regime has not yet constructed a governance regime for assessment or management of SRM. We recommend and outline comprehensive risk-risk tradeoff analyses of SRM to help avoid harmful countervailing risks. We suggest the development of an adaptive governance regime, starting early and embracing iterative and inclusive learning and updating over time. We urge that among the first key steps should be the development of a transparent international monitoring system for SRM. Such a monitoring system could provide early warning and help deter any unilateral SRM, assess the intended and unintended global and regional impacts of any research or eventual deployment of SRM, foster collective deliberation and reduce the risk of international conflict over SRM, help attribute adverse side effects of SRM to assist those adversely affected, and aid learning to improve the system adaptively over time. Thus, any reflection (of sunlight) should involve ongoing reflection (analysis and revision). Such an SRM monitoring regime is needed before SRM might be deployed, and can be developed at the same time that the focus of current efforts remains on mitigation and adaptation.","PeriodicalId":174752,"journal":{"name":"Texas A&M Law Review","volume":"32 22","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141030217","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Unintended Consequences of Torture's Ineffectiveness","authors":"Russell L. Christopher","doi":"10.37419/lr.v11.i3.1","DOIUrl":"https://doi.org/10.37419/lr.v11.i3.1","url":null,"abstract":"Whether torture to extract true information—for example, military secrets or the location of a terrorist-planted bomb—is morally permissible and empirically effective is widely disputed. But many agree that such torture’s effectiveness is a necessary condition for its permissibility; if ineffective, then it is impermissible. Thus, the empirical issue has become crucial in deciding the moral issue. This Article addresses the empirical issue with a novel, non-empirical argument. Torture’s ineffectiveness not only ensures torture’s impermissibility but also exposes torture victims to criminal liability for any offenses they are tortured into committing. With torture as the most extreme and horrific form of coercion, seemingly if anyone deserves eligibility for a duress defense against criminal liability, it is torture victims. But ineffective torture is ineffective coercion, and ineffective coercion fails to sufficiently coerce to support a duress defense. Therefore, an unintended consequence of torture’s ineffectiveness is its inconsistency with and preclusion of torture victims’ eligibility for a duress defense. The inconsistency between the two establishes that at least one of them is false. Seeking to resolve the inconsistency, this Article considers several modifications of the empirical claim—including torture being merely generally ineffective or ineffective only under certain conditions—and alternative formulations of the duress defense. With none of these satisfactory, a dilemma arises: either close the door on torture victims’ eligibility for a duress defense (by maintaining torture’s ineffectiveness) or open the door on the permissibility of torture (by conceding torture’s effectiveness). Neither alternative may be palatable, but (to resolve the inconsistency) one must be chosen.","PeriodicalId":174752,"journal":{"name":"Texas A&M Law Review","volume":"67 2","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141038708","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}