After Action: The U.S. Drone Program\u27s Expansion of International Law Justification for Use of Force against Imminent Threats

Until the 2000s, the United States\u27 attempts to shift international legal norms on imminence to allow for greater use of armed force abroad were largely unsuccessful. In the past two decades, however, drone use and careful legal gamesmanship by U.S. officials have opened an unprecedentedly broad allowance for use of force in imminent self-defense. As drones become increasingly available to state and non-state actors, this permissive regime poses a threat to national and international security. This Note analyzes two decades of international customary law formation around drone use outside of armed conflict through a new lens post U.S.-withdrawal of Afghanistan. It traces the history of the imminence exception to Article 2(4)\u27s prohibition on use of force, U.S. attempts to expand that exception, and the history of drone use outside of armed conflict. It then analyzes recent opinio juris and state practice to point to the adoption of elongated imminence into customary international law. Finally, it identifies some of the dangers of the current permissive paradigm and presents opportunities for U.S. leadership in forming a more advantageous and secure definition of imminence

Virtuous Cycles: The Interaction of Public and Private Environmental Governance

The climate crisis has provoked a call for action from all sides. Private governance, public regulation, and individual behavior are all vital pieces of our path toward decarbonization and climate adaptation. Despite this, some scholars and policymakers argue that private environmental governance undermines public efforts to regulate climate harms. This paper draws on existing scholarship in law, policy, and psychology to answer these critiques, proposing four taxonomies of beneficial public-private collaboration on environmental governance. It then applies these models, tracking the shift in U.S. environmental legislation from “polluter pays” to “beneficiary pays” strategies to show a shift from rivalry to collaboration between public and private governance. Tracking examples of this shift, it analyzes the ways that the Inflation Reduction Act and Draft Federal Acquisition Regulation demonstrate the potential of public-private climate partnerships. Finally, it analyzes similar collaborative approaches in international law to show that rather than a “race to the bottom,” the interaction of public and private governance can form virtuous cycles that have the capacity to increase decarbonization efforts across sectors

Embracing Deference

A fundamental conceptual problem has long dogged discussions about scientific and other expert evidence in the courtroom. In American law, the problem was most famously posed by Judge Learned Hand, who asked: [H]ow can the jury judge between two statements each founded upon an experience confessedly foreign in kind to their own? It is just because they are incompetent for such a task that the expert is necessary at all. This puzzle, sometimes known as the expert paradox, is quite general. It applies not only to the jury as factfinder, but also to the judge as gate- keeper under the Daubert v. Merrell Dow Pharmaceuticals, Inc. regime and Federal Rule of Evidence 702. It also applies when there is no jury at all, whether in a bench trial, administrative proceeding, or civil law jurisdiction. When it comes to scientific and other specialized knowledge, legal actors are inevitably non-experts. And if legal actors are faced with the so- called battle of the experts, how are they to decide between the warring experts? After all, to quote Judge Hand again, [i]t is just because they are incompetent for such a task that the expert is necessary at all. As one of us has previously argued, because of this epistemic competency problem, the Daubert approach to expert evidence is a mistake. The solution to the problem of expert evidence is not judicial gatekeeping, but rather to change the substantive question asked of legal actors