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Intercultural Human Rights Law Review

Abstract

In honor of John and June Mary Makdisi, this volume's general theme is about the importance of morality to law. They will be missed, having impacted students in a wide array of courses, stretching from Torts, Remedies, and Property to Evidence, Natural Law, and Family Law. Although my remarks strictly relate to my principal area of expertise and interest (i.e., environmental law), they are no less imbued with some of the moral concerns that have marked the academic lives of the Makdisis. As a professor working in the environmental field, moreover, considering the relationship of morality to law can be quite an interesting chore. In general, environmental law is an arena of strict-if not absolute-liability, and mens rea has little to do with liability except, occasionally, for criminal liability. Even there, the Department of Justice has been successful in "watering down" knowledge requirements. A criminal defendant need only know what he was doing and not that his activity violated the law, in order to be liable. So environmental lawyers generally think about science and engineering, not moral responsibility. We think about the law of nature, not natural law. To the extent that we think about moral or ethical responsibility, it is about making our legal analysis reflect the realities of science, say, of climate change. It is well known that criminal prosecutors wield enormous power, with virtually unfettered discretion in deciding who to charge with a crime, what charges to file, when to drop them, whether or not to plea bargain, and how to allocate prosecutorial resources. In death penalty jurisdictions, the prosecutor literally decides who should live and who should die by virtue of the charging discretion. This does make one uncomfortable. It can be dispositive in the immigration context as well. Immigration and Customs Enforcement ("ICE") can influence an immigration judge to administratively close a case. Administrative closure means that ICE will stop prosecuting a case and will not attempt to deport an alien. ICE may still attempt to deport them in the future, but if they do, they must give them notice and the opportunity to challenge the deportation.

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