Res Communis

ABA 2010: Ethical Issues in Aviation Law

by P.J. Blount with the blog faculty

The first panel of the afternoon was Ethical Issues in Aviation Law and was chaired by Tom O’Grady, Alaska Air Group. Panelists included Rob Kelly, Department of Justice (and University of Mississippi School of Law alum); Mollie O’Brien, Nolan Law Group; William O’Connor, Morrison & Foerster; and Tae Mee Park, Bersenas Jacobsen Chouset Thomson Blackburn.

O’Brien started the discussion with an overview of the Aviation Disaster Family Assistance Act. She stated that this act gave the NTSB duties in dealing with the immediate needs of families during aviation accidents. She said that one one of the primary requirements was that the NTSB develop a plan on how to manage relations with family members and address the needs of families. She noted that the act prohibits unsolicited communications from attorneys and potential parties to the litigation within 45 days of an accident.

Parks started her comment by noting that there was no absolute ban on solicitation in Canada. Instead, she said, solicitation was guided by Canadian Bar ethics rules. She said that these rules were flexible, but disallowed “unconscionable” conduct, while recognizing the need for families to have access to legal resources.

Kelly started his comments focused on how government agencies interact with parties during aviation accidents. He said that a great deal of this depends on the function of the particular agency. The conversation then turned to the use of fifth amendment rights during aviation disasters. Kelly stated that corporations have no fifth amendment rights.

O’Connor then discussed fifth amendment rights as the applied to employees of corporations. He said in some instances the employees have access to use that right. He also discussed the use of attorney client privileges by corporation, which the panel then moved forward in discussing. This was highlighted in relation the decision to prosecute.

ABA 2010: Climate Change & Aviation – The Evolving Legal Landscape

By P.J. Blount with the blog faculty

Climate Change & Aviation – The Evolving Legal Landscape was moderated by Nancy Young, Air Transport Association. Panelists included Edward L. Ferguson, Boeing; Nancy D. LoBue, FAA; Leah Raney, Continental Airline; and Andy Steinberg, Jones Day.

Raney stated that climate change was a major issue for the airlines. She stated that the majority of greenhouse emissions from airline operations are from the burning of fuel while spacecraft are in flight. She stated that there were costs and benefits involved with reducing these emissions.

Ferguson stated that a major problem was a patchwork of regulatory regimes. He stated that this could reduce the competitiveness of the entire industry. He stated that the industry needed to take the helm to fix the problem to avoid such a situation.

LoBue stated that the FAA had an interest in creating a sustainable industry, and that part of this was helping ensure that the regulatory regime was effective but not burdensome.

Steinberg highlighted the idea that the international perspective was very important in this. He endorsed the use of the ICAO regime as opposed to creating different national regimes that are not harmonized.

The panelists were then asked to respond to how a global response could be organized. LoBue discussed briefly the negotiations and work being done at ICAO. She stated that progress was being made in the ICAO assembly, but that there were still some obstacles to be tackled before international agreement on these matters would be complete.

The panel then began a discussion of the EU directive on aviation greenhouse gases and the legal challenges that are now taking place in court in the UK. Raney stated that at the heart of the dispute was the extraterritoriality of the directive. Ferguson noted that the taxes imposed were not limited to flights originating in Europe. Steinberg discussed the particular legal issues involved with the case. He said at issue was the extent that the parties can rely on international law sources (trsovereignty custom), sovereignty issues, and whether the trading scheme violates the Chicago Convention.

The panel then had an in depth discussion on specific challenges and strategies for addressing the issues of aviation emissions on a global level, with specific reference to the United States’ position and posture in this area.

ABA Forum 2010: Aviation Security and the Privacy Fulcrum

By P.J. Blount with the blog faculty

The first panel of the conference was Aviation Security and the Privacy Fulcrum and was moderated by Stephen J. McHale, Patton Boggs, LLP. Panelists included Brian Alseth, ACLU; Stewart Baker, Steptoe and Johnson; Christopher Bidwell, Airports Council International – North America; and Margo Schlanger, Department of Homeland Security. The panel focused on the intersection of security and privacy issues in airport security. Specific reference was made to how evolving technologies and methodologies affect these issues.

Schlanger began with comments on home DHS and TSA work to create policies that support civil liberties. She stated that this was done internally but with a great deal of input from stakeholders, whom she stated were involved throughout the policy making process. She also stated that once policies are created that there is training to ensure that implementation is done effectively. Finally, she said that there are outreach and redress procedures in order to make sure that concerned stakeholders understand policies and have a way to give feedback on them.

Alseth’s initial comments focused on striking the balance between security and privacy. He stated that he felt one of the major problems in the security process was the knee-jerk implementation of new technology after incidents. He said that the ACLU wasn’t concerned about new technology, but rather was concerned with the effectiveness of these implementation and the protection of privacy during this implementation.

Baker started by discussing his research into the history of aviation terrorism and the technology involved. He stated that in the past there has been a systemic problem in implementation of new technologies and stated that there has been a specific risk involved with the ineffectual use of these technologies.

Bidwell noted that the top priority in the aviation industry was to ensure the safety of passengers. He noted that there was a disconnect in the perception of passengers, however. He stated that passengers see a procedure, regardless of where the new procedure originates, it is associated with the airport. He then stated that communication was key in order to ensure that passengers understand the reasoning behind new policies and technologies. He also highlighted how implementation of new technologies create costs for airports, which means that careful analysis of these new technologies is crucial in order to both ensure safety and the ability of airports to effectively implement the new technologies.