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“True enough”
Michael T. Colatrella
Of the many contributions that Professor Leonard Riskin introduced in his landmark article Understanding Mediators’ Orientations, none is more profound than the educational value of the original Riskin Grid (the “Grid”) as a mental model to aid in understanding the mediation process. Describing a phenomenon through use of a simple model so that it can be systematically studied is a well-established and valuable scientific method. To be effective, however, good models must be calibrated to an appropriate level of sophistication for the student. The Grid is an effective model to help students new to mediation to conceptualize what mediators do and how they do it. Indeed, Riskin states that clarifying the mediation process is the Grid’s primary purpose. Along these lines, Riskin emphasizes one of the article’s primary aims is “to facilitate discussions and help to clarify arguments by providing a system for categorizing and understanding approaches to mediation.” Although some have criticized the Grid as being too simple, incomplete, and even misleading, it is the Grid’s simplicity that enables Riskin to illuminate the mediation process so brightly. Riskin himself, in a later article, attempted to address the Grid’s so-called weaknesses and limitations by suggesting a more dynamic Grid system (Riskin). The Grid persists magnificently as a fundamental model of understanding of what mediators do. It remains a central feature of mediation education because it is a clear and simple conceptual framework of the mediation process that a mediation novice, whether a law student, an attorney, or a professional interested in mediation from any number of other disciplines, can understand. The Grid endures, in other words, not because it is perfect, but because it is “true enough.”….
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US-litigated government-funded patents in Europe and Japan: A first look
Teo Firpo and Michael S. Mireles
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Contracts: A Context and Practice Casebook Teacher's Manual
Michael Hunter Schwartz and Adrian Walters
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Layperson’s Guide to Water Rights
Water Education Foundation, Tom Hicks, and Jennifer L. Harder
The 28-page Layperson’s Guide to Water Rights Law, recognized as the most thorough explanation of California water rights law available to non-lawyers, traces the authority for water flowing in a stream or reservoir, from a faucet or into an irrigation ditch through the complex web of California water rights.
It includes historical information on the development of water rights law, sections on surface water rights and groundwater rights, a description of the different agencies involve in water rights, and a section on the issues not only shaped by water rights decisions but that are also driving changes in water rights. Includes chronology of landmark cases and legislation and an extensive glossary. Added for 2020 is an extensive section on the Sustainable Groundwater Management Act.
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Alternatives to city departments
John J. Kirlin, John C. Ries, and Sidney Sonenblum
This chapter explores the alternatives to city departments for providing municipal services. City officials have a strong bias toward service provision via city departments as the arrangement which gives them greatest control over service delivery. Identifying service provision as the rationale of local government easily leads to the presumption that municipal services should be provided by a city's own employees, through "city departments." Provision of any municipal service includes three activities: planning, finance, and production. Elected officials, city managers, and senior municipal administrators appear to be the primary participants in discussions to alter service delivery arrangements. At the level of national policy, some incentives for the development of cooperative intermunicipal arrangements already exist. The prevalent attitude concerning municipal service delivery–among municipal officials, citizens, and academics alike–identifies city departments as the sole, most likely, or preferred provider. Lower expenditures for municipal services should result from greater use of alternatives to city departments.
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Party Like It’s 1989: Justice Scalia’s Rhetoric of Certainty
Francis J. Mootz III
Francis J. Mootz, III, Party Like It’s 1989: Justice Scalia’s Rhetoric of Certainty in Justice Scalia: Rhetoric and the Rule of Law (eds., Brian G. Slocum and Francis J. Mootz III, University of Chicago Press 2019).
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Research handbook on international water law
Stephen C. McCaffrey, Christina Leb, and Riley T. Denoon
The Research Handbook on International Water Law surveys the field of the law of shared freshwater resources. In some 30 chapters, it covers subjects ranging from the general principles operative in the field and international groundwater law to the human right to water and whether international water law is prepared to cope with climate disruption. The authors are internationally recognized experts in the field, most with years of experience.
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The Contribution of Linguistics to Legal Interpretation
Brian G. Slocum
Brian G. Slocum, The Contribution of Linguistics to Legal Interpretation in Justice Scalia: Rhetoric and the Rule of Law (eds., Brian G. Slocum and Francis J. Mootz III, University of Chicago Press 2019).
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United States: The Protection of Minority Investors and Compensation of Their Losses
Franklin A. Gevurtz
Franklin A. Gevurtz, United States: The Protection of Minority Investors and Compensation of Their Losses, in Global Securities Litigation and Enforcement at 109 (Pierre-Henri Conac and Martin Gelter, eds., Cambridge 2019).
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Rethinking Environmental Impact Assessment in Guatemalan Mining
Rachael Salcido, Karrigan Bork, Julie A. Davies, and Blake Nordahl
Rachael E. Salcido, Rethinking Environmental Impact Assessment, in From Extraction to Emancipation Development Reimagined 71 (Raquel Aldana & Steven W. Bender, eds., Carolina Academic Press 2018).
Karrigan Bork, Community-Based Biomonitoring: An Antidote to Insufficient Governmental Water Quality Monitoring and Enforcement, in From Extraction to Emancipation Development Reimagined 93 (Raquel Aldana & Steven W. Bender, eds., Carolina Academic Press 2018).
Julie Davies, The Impact of Mining on Self-Determination of Rural Guatemalan Communities, in From Extraction to Emancipation Development Reimagined 153 (Raquel Aldana & Steven W. Bender, eds., Carolina Academic Press 2018).
Blake Nordahl, A Migration Story from the Sugar Fields of Southwest Guatemala: A Case for Treating Corporations as Persecutors under Asylum and Refugee Law, in From Extraction to Emancipation Development Reimagined 237 (Raquel Aldana & Steven W. Bender, eds., Carolina Academic Press 2018).
This edited volume uses Guatemala as a case study to examine broad global themes arising from development practices in emerging economies. It offers important lessons to investors and policymakers on strategies to improve distributional justice and respect for the rule of law, including human rights and environmental norms. The book examines global themes such as climate change, extractive industries, labor regimes, and forced migration, all of which have transborder implications and across-border commonalities.
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Conclusion: Findings and Recommendations
Linda E. Carter and Jennifer Schense
Jennifer Schense and Linda Carter, Conclusion: Findings and Recommendations, in TWO STEPS FORWARD, ONE STEP BACK: THE DETRIMENTAL EFFECT OF INTERNATIONAL TRIBUNALS, at 1 (Jennifer Schense and Linda Carter co-ed., International Nuremberg Principles Academy 2016).
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Environmental law and freshwater ecosystems
Stephen C. McCaffrey
This chapter focuses on the contributions of the International Court of Justice to environmental law in two cases involving Nicaragua, which have been many and significant. The judgment in the two cases considered, the Certain Activities and Construction of a Road cases, contains a wealth of material bearing upon the law of wetlands of international importance, governed by the Ramsar Convention, transboundary pollution, and the right of a state to maintain the flow and navigability of a watercourse within its borders. These cases also illustrate the challenges posed by cases involving substantial evidence of a scientific and technical nature, as well as those that deal with harm that builds incrementally. Finally, the Court’s judgment in the two cases shows that the Court is fully prepared to hold States to their procedural obligations in the field of the environment but that it will require clear and convincing evidence of harm before finding a breach of the obligation to prevent transboundary environmental harm.
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Gadamer and law
Francis J. Mootz III
Hans-Georg Gadamer's philosophical hermeneutics is especially relevant for law, which is grounded in the interpretation of authoritative texts from the past to resolve present-day disputes. In this collection, leading scholars consider the importance of Gadamer's philosophy for ongoing disputes in legal theory. The work of prominent philosophers, including Fred Dallmayr, P. Christopher Smith and David Hoy, is joined with the work of leading legal theorists, such as William Eskridge, Lawrence Solum and Dennis Patterson, to provide an overview of the connections between law and Gadamer's hermeneutical philosophy. Part I considers the relevance of Gadamer's philosophy to longstanding disputes in legal theory such as the debate over originalism, the rule of law and proper modes of statutory and constitutional exegesis. Part II demonstrates Gadamer's significance for legal theory by comparing his approach to the work of Nietzsche, Habermas and Dworkin.
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Getting Over the Originalist Fixation
Francis J. Mootz III
Getting Over the Originalist Fixation, in The Nature of Legal Interpretation: What Jurists Can Learn about Legal Interpretation from Linguistics and Philosophy (Brian G. Slocum, ed., University of Chicago Press 2017).
New Originalism is founded on the "Fixation Thesis," the claim that the meaning of a legal text is fixed at the time of enactment. Professor Larry Solum has done the best job of articulating this thesis and explaining that it, in itself, does not have normative implications for legal theory. Using Solum as my interlocutor, I argue that the Fixation Thesis is false. Drawing from the Philosophical Hermeneutics of Hans-Georg Gadamer, I argue that the Fixation Thesis falsifies the experience of meaning as the result of hermeneutical activity. By neglecting the ontology of human understanding, legal theorists permit the New Originalist program to get off the ground with an intuitive appeal to a "fixed" meaning. Later efforts to argue on behalf of a "living constitution" wilt in the face of the desire for constraint; who can successfully argue against the comforting fantasy of judges who discern objective meaning without having to make judgments? The Fixation Thesis is aptly named. As Freud emphasized, fixations are a failure to achieve full maturity by getting stuck at a stage of development. I argue that the Fixation Thesis represents a stunted inability to move beyond a certain stage of development in legal theory, and that we are best counseled to overcome the Fixation Thesis therapeutically. The desire for certainty is a powerful motivating force in our lives, giving rise to all manner of confused self-understandings that cloak our nature and provide some measure of psychological comfort in the face of our human condition. As painful as it may be, though, it is time to wean ourselves of the Fixation Thesis in law.
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Introduction
Linda E. Carter and Jennifer Schense
Jennifer Schense and Linda Carter, Introduction, in TWO STEPS FORWARD, ONE STEP BACK: THE DETRIMENTAL EFFECT OF INTERNATIONAL TRIBUNALS, at 1 (Jennifer Schense and Linda Carter co-ed., International Nuremberg Principles Academy 2016).
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Tapping transboundary waters: Implications of the right to water for states sharing international watercourses
Anna F. S. Russell and Stephen C. McCaffrey
INTRODUCTION With population growth, and economic and agricultural development, placing greater strain on the world’s limited supply of freshwater, reliable access to clean water is becoming increasingly difficult to secure. Watercourses on all continents are under threat of overuse, increased pollution and in certain cases, large-scale diversion. Not only has the sector faced historical neglect and poor governance, but climate change poses additional challenges for managing the sector and protecting the resource. The political geography of the planet is dominated by international drainage basins, yet the obligations of governments towards individuals in other countries relying on shared waters are unclear. Traditionally, the law of human rights has protected the individual against his or her government, not against actions of governments of other countries. Thus, for instance, the failure of an individual’s government to take steps to progressively ensure access to adequate water would generally constitute a human rights violation. And, in fact, for most people who lack access to water, the problem lies internally within that country, and does not relate to use of a transboundary watercourse. However, if an individual’s lack of access to water is due to a neighbouring State’s use of an international watercourse, has that State violated the individual’s right to water? This chapter examines the implications of recognition of a human right to water for States sharing international watercourses. Section 2 provides some contextual background to transboundary water disputes and examples of uses of international watercourses that could infringe the human rights of individuals living in co-riparian States. Section 3 examines arguments relating to potential extraterritorial obligations of States to respect, protect and fulfil the right to water in the context of transboundary watercourses. Section 4 reviews accountability mechanisms for holding States responsible for any extraterritorial violations of the right to water. Section 5 discusses the influence of the right to water on existing international watercourse law along with suggestions as to how the right to water may inform the workings of international institutions (e.g. joint commissions) responsible for the management of such transboundary waters. CONTEXTUAL SETTING: RISING TENSIONS OVER THE USE OF INTERNATIONAL WATERCOURSES International river basins ‘generate roughly 60 per cent of the global freshwater flow and are home to approximately 40 per cent of the world’s population’.
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The Evolution of International Law Relating to Transboundary Waters
Stephen C. McCaffrey
Stephen C. McCaffrey, The Evolution of International Law Relating to Transboundary Waters, in ROUTLEDGE HANDBOOK OF WATER LAW AND POLICY, at 205 (Alistair Rieu-Clarke, Andrew Allan & Sarah Hendry, eds., 2017)
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An integrative model for the ICC's enforcement of arrest and surrender requests: Toward a more political court?
Nadia Banteka
International criminal courts and tribunals have been established on a belying enforcement paradox between their significant mandate and their inherent lack of enforcement powers. Their endogenous frailty lies in the predicament that, unlike their national counterparts, they are not backed by systemic law enforcement. Instead, they are left to rely on external forces to procure enforcement. Although the creation of a permanent International Criminal Court marked a fundamental turning point in the pursuit of international criminal justice, the icc must also rely on state cooperation and judicial assistance in order to secure arrests. Despite the solid legal underpinnings of the enforcement regime under the Rome Statute, I argue that the icc has thus far failed to achieve desired results due to its persistence in rejecting the factoring of politics in the enforcement of arrest requests equation. For this reason, I suggest a perspective of the arrest and surrender enforcement that not only recognizes the relevance of politics in its sphere but also capitalizes on it. Accordingly, I argue that by fully comprehending its enforcement tools, making use of its political role and the realities surrounding it, the Office of the Prosecutor (otp) may increase its rates in the apprehension of suspects, and therefore secure higher levels of judicial enforcement. Part of this role is the challenge for the icc to successfully convince skeptical states of there being a way to engage with the Court which does not result in an attrition of their sovereignty but in its enrichment. Nevertheless, little reference has been made to the Court's bargaining leverage in order to attract key actors in the regional and global political power-play that could affect the situations before the Court. This is probably due to the, oftentimes accurate, perception that those key actors appear to be vocally opposed to the icc.
Scholarship is a core priority for the Pacific McGeorge faculty. Among their scholarly pursuits, Pacific McGeorge faculty develop and present at scholarly symposia and conferences, author books for the legal profession, students, and the general public, and produce scholarship for top journals around the country and the world.
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