Issue 2

"Sports Law": Implications for the Development of International, Comparative, and National Law and Global Dispute Resolution

In this Article, we observe that legal regulation of national and international sports competition has become extremely complex and has entered a new era, which provides fertile ground for the creation and evolution of broader legal jurisprudence with potentially widespread influence and application. Our principal aim is to draw these developments to the attention of legal scholars and attorneys not necessarily familiar with sports law. Specifically, the evolving law of sports is having a significant influence on the development of international and national laws, is establishing a body of substantive legal doctrine ripe for analysis from a comparative law perspective, and has important implications for global dispute resolution. For example, the global processes used to establish an international sports antidoping code and to resolve a broad range of Olympic and international sports disputes (which is rapidly creating a body of global private law) provide paradigms of international cooperation and global lawmaking. In addition, judicial resolution of sports-related cases may develop jurisprudence with new applications and influence. Our objective is to generate greater awareness of the importance of sports, not only as a worldwide cultural phenomenon and a significant part of the twenty-first-century global economy, but as a rich source of international and national public and private laws that provide models for establishing, implementing, and enforcing global legal norms.

Congressional Consent Under the Compact Clause: Plugging the Leaks in the Regional Greenhouse Gas Initiative

The United States faces a potential turning point in the relationship between state and federal regulation of environmental issues. With the election of President Barack Obama, who has signaled a commitment to taking action in the area of carbon emissions regulation, the national government may step into an arena where the states are already playing, setting up a federalism debate to determine the better actor to enact meaningful and efficient environmental protection. Effectiveness in this area depends on the balance between quick enactment to prevent increased emissions (and further harm) and the comprehensiveness required to address this national and global issue. This Comment examines the Regional Greenhouse Gas Initiative to illustrate how the use of a seldom-examined constitutional tool--consent under the Compact Clause--could enable states to form efficient and effective regional regulatory schemes that could be meaningful units within the greater system of federalism.

A Crime Against Common Sense: How Louisiana's Implementation of the Adam Walsh Act Exposes the Law's Most Significant Flaw

In Louisiana, hundreds of people are required to register as sex offenders for committing a crime that is neither violent, predatory, nor against children. Prostitutes who offer (or solicitors seeking) vaginal sex are convicted of prostitution, whereas prostitutes offering (or solicitors seeking) oral or anal sex may be convicted of “Crime against nature” and must register as sex offenders. This Comment explores how Louisiana's implementation of the flawed Adam Walsh Act has led to the senseless mislabeling of those convicted of “Crime against nature” as sex offenders. More than merely recognizing the problem, this Comment offers a practical solution.

The Political Economy of Energy and Its Implications for Climate Change Legislation

Public choice themes have arisen throughout the history of U.S. energy regulation and continue to be relevant today, particularly with widespread discussion of deregulation and increased attention to climate change. This Article surveys how public choice themes are relevant to understanding a host of issues of importance to the electric power industry today, including the structure of the industry, the significance of wholesale markets, and the division of regulatory power between state and federal authorities. The Article highlights how an understanding of how public choice has contributed to these features of the electric power industry will prove important to the successes and failures of national climate change policy.

Law and Choice of Entity on the Social Enterprise Frontier

Social entrepreneurs are people who envision widespread, systematic social change and who attack society's ills at the roots, employing the spirit and the tools of entrepreneurship. They reject the traditional boundaries between the nonprofit and for-profit sectors and carry out their plans through so-called hybrid social enterprises, which combine the soul of nonprofit organizations with the discipline and business savvy of for-profits. Although social entrepreneurs generally are driven by a desire to do good, they view themselves as businesspeople who are trying to achieve double-bottom-line (financial and social) or triple-bottom-line (financial, social, and environmental) results. Why should the emergence of these new hybrid social enterprises be of particular concern to lawyers? Because their creators say that they inhabit a social frontier, sometimes referred to as the “emerging fourth sector,” where outmoded laws and inappropriate, old-style legal entities hamstring their socially transformative plans. With increasing vehemence, they are demanding new laws, particularly new types of hybrid business entities.

This Article describes the social enterprise frontier, paying particular attention to a recent trend whereby social entrepreneurs form their ventures as for-profit companies even though their ambitions are largely charitable. The paper then critically examines various proposals for creating new types of hybrid for-profit/nonprofit entities to provide a legal structure for fourth sector ventures. The paper concludes that a very recent legal innovation, the Low Profit Limited Liability Company, holds particular promise for meeting the needs of social entrepreneurs and the emerging fourth sector.

Probabilities, Planning Failures, and Environmental Law

Environmental laws often mandate specific environmental outcomes and require agencies to adopt plans designed to achieve those outcomes. But because of pervasive uncertainties, agencies are often unsure if their plans will succeed. Decisionmakers therefore must decide how to balance risks of plan failure against the costs of more cautious regulatory approaches. This Article explores and evaluates legal responses to these dilemmas. I find that environmental statutes and regulations use a patchwork of measures to manage these planning uncertainties. Decisions about planning uncertainty are frequently made on an ad hoc, nontransparent basis, and plans with low success odds are common. That approach is problematic, for it impedes public participation, increases vulnerability to decisionmaking biases, and contributes to regulatory dysfunction. I therefore propose procedural and substantive reforms designed to improve transparency and to reduce the frequency of plan failure.

Reconstructing the Responsibility to Protect in the Wake of Cyclones and Separatism

This Article reconceptualizes the doctrine of the responsibility to protect (R2P). R2P provides that when a government fails to protect its citizens from genocide, war crimes, ethnic cleansing or crimes against humanity (“mass atrocities”), that responsibility shifts to the international community acting through the United Nations. The U.N.'s apparent failure to include natural disasters in the catalogue of harms potentially justifying R2P intervention generated considerable controversy following Myanmar's refusal of foreign aid following the devastation wrought by Cyclone Nargis. Those seeking to limit the scope of R2P considered it inapplicable in the case of Myanmar, reading the U.N.'s focus on mass atrocities as a conscious decision to exclude natural disasters as triggers for R2P. By contrast, supporters of R2P looking to rely on the doctrine to compel Myanmar to accept aid have argued that there is no meaningful distinction between the failure to protect following natural disasters and the failure to protect from mass atrocities.

This Article shows that the causes of the harm are irrelevant. Developing what it labels a “constructive interpretation” of R2P, the Article demonstrates that R2P applies equally to a state's failure to protect its population from harm caused by its omission to act when that omission constitutes a crime against humanity. This thesis is advanced through the novel application of fundamental criminal law principles to the regime of international human rights, and includes a discussion of the extent to which the concept of crimes against humanity can be deployed where the harm to a civilian population comes about by means of inaction rather than action.