Professor Alison Peck Adds New Work to SSRN

West Virginia University law professor Alison Peck recently published two new works to SSRN.

Withdrawing from NAFTA is forthcoming in volume 107 of the Georgetown Law Journal.

From the abstract:

Since the 2016 campaign trail, Donald Trump has threatened to withdraw from NAFTA. Can he? The question is complex. For one thing, NAFTA is not a treaty negotiated under the Treaty Clause of the Constitution but rather a congressional-executive agreement, a creature of dubious constitutionality and ill-defined withdrawal and termination authority. This Article reviews the scope of that authority and concludes that unilateral Presidential withdrawal from NAFTA, while not without support, is ultimately unlawful. On the one hand, unilateral Presidential withdrawal would be valid as a matter of international law, and the NAFTA Implementation Act appears to be designed to terminate in the event of a lawful United States withdrawal from NAFTA. However, the President probably lacks statutory or constitutional authority to withdraw from NAFTA, and litigants might effectively overcome political question hurdles by arguing that the NAFTA Implementation Act should not terminate where the President’s action exceeds the scope of his authority. Finally, since the Legislative branch possesses the core constitutional authority over foreign commerce, Congress would also have several political remedies if it wishes to foreclose unilateral Executive withdrawal from NAFTA or other congressional-executive agreements.

Identity-Based Conflicts in Public Policy: Hydraulic Fracturing in Pennsylvania was published in volume 79 of the University of Pittsburgh Law Review.

From the abstract:

Americans are experiencing a communication crisis in public policy—a crisis that has become especially acute since the November 2016 elections. Research shows that Americans increasingly treat their policy views as constitutive of their identities and separate themselves from other groups based on these identities. New solutions are needed in the lawmaking process to soften participants’ hardening of their own identities and negative characterizations of other groups. This Article studies one controversy that has proven to be entrenched, if not yet intractable, in many jurisdictions: hydraulic fracturing. The Article examines advances made by scholars of conflict resolution and peace and conflict studies in the late 20th and early 21st centuries that focus on dialogue and softening of frames to move entrenched conflicts towards resolution. Based on this case study of the legislative and regulatory snarl over hydraulic fracturing in Pennsylvania, the Article proposes a new process, marshaled by a Special Committee for Public Policy Dialogue, that would implement the insights of peace and conflict studies researchers allowing the legal system to address and move past identity-based conflicts that threaten to bring lawmaking to a standstill.

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