The Michigan Basin

The Michigan basin is widely acknowledged to be the archetype among those basins of cratonic interiors whose subsidence is dominated by flexure rather than faulting. Broadly ovate in plan over an area of some hundreds of thousands of square kilometers, with a preserved Phanerozoic sediment thickness exceeding 4 km accumulated during distinct episodes of subsidence over a 500-million year span, the basin is endowed with significant fossil-fuel resources. The basin area is crossed, from north-northwest, by a rift zone filled with mafic igneous rock and great thickness of sedimentary rock resting on Archean and Middle Proterozoic crystallines. Rifting is presumably of Keweenawan age, but the igneous rocks cannot be dated more explicitly than “older than 600 myBP”. The ill-defined Grenville Front lies near the eastern basin margin. The basin area, along with the whole of the cratonic interior, suffered intensive erosion before Late Cambrian time when renewed sedimentation began; probably as a northern extension of the Illinois basin-Mississippi Embayment. Basinal subsidence conforming to the present architecture of the Michigan basin began in mid-Ordovician time, to be followed by further pulses of significant downwarp in the Middle and Late Silurian, Middle Devonian, and Middle Mississippian. Minor accumulations of Pennsylvanian, Jurassic, and Pleistocene sediments are preserved; the Pennsylvanian episode appears to have been accompanied by basement faulting during which the greater part of deformation of the basin fill occurred. Each of the major episodes of basinal subsidence is marked by changes in the geometry of the basin, such as changes in the position of the depocenters and degree of confinement of expansion of the basin interior. Episodes of more rapid subsidence of the Michigan basin, times of change in basin geometry, and intervening episodes of stability (commonly accompanied by erosion) are synchronous with similar basins of the North American and other cratonic interiors

Section 230 and the Duty to Prevent Mass Atrocities

Of course, any proposal to create a statutory exception to section 230 immunity raises a set of complex questions about the proper scope of such an exception. This article identifies the key issues that would need to be resolved if Congress decided to create an exception along these lines. The remainder of this article consists of three parts. The first part explains why removal of immunity from civil liability is an appropriate mechanism to help prevent use of social media to incite or induce commission of mass atrocity crimes. The second part contends that the exception to section 230 immunity should apply to genocide and crimes against humanity, but not to terrorism or war crimes. The final part discusses a series of other issues that Congress would need to address to determine the proper scope of any such exception

California\u27s Climate Diplomacy and Dormant Preemption

After President Trump announced that the United States would withdraw from the Paris climate agreement, Governor Brown issued a joint statement with his counterparts from New York and Washington, announcing that the three governors “are teaming up to fight climate change in response to President Trump’s” withdrawal decision. A few days later, Governor Brown met in Beijing with China’s President Xi Jinping. The Chinese President reportedly “welcomed California’s efforts to work with the Chinese government to help combat global warming.” According to the California government web site, the state is party to a total of 54 “international agreements” on climate change, including agreements with both national and sub-national governments.Governor Brown’s international diplomacy raises two distinct constitutional concerns. First, the Compact Clause provides: “No State shall, without the Consent of Congress . . . enter into any Agreement or Compact . . . with a foreign Power.” California’s cap-and-trade agreement with the Government of Québec (the “Linking Agreement”) is vulnerable to a constitutional challenge in this respect. Second, the Foreign Commerce Clause grants Congress power “to regulate Commerce with foreign Nations.” The Supreme Court has held that state laws may violate the Dormant Foreign Commerce Clause if they “prevent this Nation from ‘speaking with one voice’ in regulating foreign commerce.” The Linking Agreement may also run afoul of the Dormant Foreign Commerce Clause. Although the matter is not free from doubt, I conclude that the Linking Agreement does not violate the Dormant Foreign Commerce Clause. However, the Agreement may be unconstitutional under the Compact Clause, absent congressional consent. The Conclusion considers options available to Governor Brown to mitigate potential constitutional difficulties

Human Rights and Constitutional Democracy

This essay reviews Professor Jamie Mayerfeld\u27s book, The Promise of Human Rights. I am sympathetic to the broad contours of Professor Mayerfeld’s argument. Nevertheless, this essay challenges portions of his account. Part One addresses the topic of international oversight. Mayerfeld makes a powerful theoretical argument in support of his claim that increased international oversight could help strengthen human rights protections in the United States. Here, though, I think his account omits some important information and gives insufficient weight to current political realities. Part Two focuses on what Mayerfeld calls the United States’ “self-exemption policy.” In brief, this is the U.S. policy of refusing to ratify most human rights treaties and of ratifying other treaties subject to reservations, understandings, and declarations that limit the domestic effect of ratified treaties in the United States. I agree with much of his critique of the self-exemption policy. Even so, Part Two contends that there is a significant tension between the self-exemption policy and Mayerfeld’s defense of the democratic legitimacy of international human rights law because the self-exemption policy exacerbates the tension between majoritarian democratic principles and the domestic enforcement of international human rights norms

GUNS, ABORTION AND COURTS

The Supreme Court decided both Dobbs v. Jackson Women’s Health and New York State Rifle v. Bruen in June 2022. Bruen involves gun rights and incorporation doctrine. Dobbs addresses abortion rights and substantive due process (SDP). However, the doctrinal distinction between SDP and in- corporation is untenable. Both doctrines are rooted in the Four- teenth Amendment Due Process Clause; neither finds support in the text or original understanding of the Fourteenth Amend- ment. The Court applies the same historical test for both SDP and incorporation cases to determine which rights the Due Process Clause protects. Both doctrines address legal issues where states traditionally enjoyed broad autonomy. The Court’s his- torical test fails to provide a principled justification for the cen- tral feature of both doctrines: the decision to replace a consistent historical tradition of state autonomy with a new federal con- stitutional rule that mandates national uniformity. Before WW II, the Court treated SDP and incorporation as a single doctrine; it invoked natural law to justify that doctrine. This article contends that natural law provides the only theo- retically coherent rationale for the doctrine. The article defends a natural law test linked to the human rights principles in the Universal Declaration of Human Rights. The human rights (HR) test offers three main advantages over the historical test. First, the HR test is more compatible with the constitutional principles of dual sovereignty and legis- lative primacy. Second, the HR test is less subjective and less prone to manipulation than the historical approach. Third, the natural law, HR theory provides a principled justification for the decision to replace a historical tradition of state autonomy with a uniform, federal constitutional rule. Under the HR test, the right to bear arms does not qualify as a fundamental right. In contrast, there is a plausible argument that a woman’s right to terminate her pregnancy is a fundamental right, but that ar- gument is not a slam dunk