Public Law and Legal Theory Commons^™

Innovative Regulatory And Financial Parameters For Advancing Carbon Capture And Storage Technologies, Zen Makuch, Slavina Georgieva & Behdeen Oraee-Mirzamani

Fordham Environmental Law Review

No abstract provided.

Lessons From Renewable Energy Diffusion For Carbon Dioxide Removal Development, Anthony E. Chavez

Fordham Environmental Law Review

No abstract provided.

Regaining Control Over The Climate Change Narrative: How To Stop Right-Wing Populism From Eroding Rule Of Law In The Climate Struggle In India, Binit Agrawal

Fordham Environmental Law Review

No abstract provided.

Textiles As A Source Of Microfiber Pollution And Potential Solutions, Lea M. Elston

Fordham Environmental Law Review

No abstract provided.

The Impact Of Cultural Heritage On Japanese Towns And Villages, Yuichiro Tsuji Dr.

Seattle Journal of Technology, Environmental & Innovation Law

In 1954, when historically significant clays and clay pots were found in the Iba district of Shizuoka prefecture, the city applied to the prefectural education committee for a historic site designation. The committee granted this designation to the city..

However, in 1973 the education committee lifted its permission to promote development around the location. Historians have sought revocation of this decision under the Administrative Case Litigation Act (ACLA), but the Supreme Court has denied standing. By denying standing, the Japanese Supreme Court allows the prefecture to destroy a historical site.

First, this paper seeks to discuss the doctrine of standing …

Fault Lines: An Empirical Legal Study Of California Secession, Bill Tomlinson, Andrew W. Torrance

Seattle Journal of Technology, Environmental & Innovation Law

Over the last decade, multiple initiatives have proposed that California should secede from the United States. This article examines the legal aspects of California secession and integrates that analysis with findings from an empirical study of public perceptions of such secession. There is no provision in the United States Constitution allowing states, or other political or geographical units, to secede unilaterally. The Civil War was fought to uphold this principle, and the United States Supreme Court confirmed it in its 1869 Texas v. White decision. Nevertheless, numerous instances of secession, both legal and extralegal, have occurred across human history, and …

“A Climate Of Lawlessness”: Upholding A Government’S Affirmative Duty To Protect The Environment Using Deshaney’S Special Relationship Exception, Katherine G. Horner

Journal of Law and Policy

The Industrial Revolution introduced an era of exceptional technological advances. However, it also led to rampant environmental pollution and degradation. The proliferation of toxic pollutants in the air, water and soil has led us to the precipice of an unimaginable future; a future defined by climate change. This Note argues for the use of the special relationship exception, affirmed by the Supreme Court in DeShaney v. Winnebago, in environmental litigation in order to uphold governments’ affirmative duty to protect the environment. As federal and state governments have the sole power to regulate environmental pollution and enforce environmental protections, individuals are …

Dispute Settlement Under The African Continental Free Trade Area Agreement: A Preliminary Assessment, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The African Continental Free Trade Area Agreement (AfCFTA) will add a new dispute settlement system to the plethora of judicial mechanisms designed to resolve trade disputes in Africa. Against the discontent of Member States and limited impact the existing highly legalized trade dispute settlement mechanisms have had on regional economic integration in Africa, this paper undertakes a preliminary assessment of the AfCFTA Dispute Settlement Mechanism (DSM). In particular, the paper situates the AfCFTA-DSM in the overall discontent and unsupportive practices of African States with highly legalized dispute settlement systems and similar WTO-Styled DSMs among other shortcomings. Notwithstanding the transplantation of …

Pursuing Diversity: From Education To Employment, Amy L. Wax

All Faculty Scholarship

A central pillar of the Supreme Court’s educational affirmative-action jurisprudence is that the pedagogical benefits of being educated with students from diverse backgrounds are sufficiently “compelling” to justify some degree of race-conscious selection in university admissions.

This essay argues that the blanket permission to advance educational diversity, defensible or not, should not be extended to employment. The purpose of the workplace is not pedagogical. Rather, employees are hired and paid to do a job, deliver a service, produce a product, and complete specified tasks efficiently and effectively. Whether race-conscious practices for the purpose of creating a more diverse workforce will …

Enough Is As Good As A Feast, Noah C. Chauvin

Seattle University Law Review

Ipse Dixit, the podcast on legal scholarship, provides a valuable service to the legal community and particularly to the legal academy. The podcast’s hosts skillfully interview guests about their legal and law-related scholarship, helping those guests communicate their ideas clearly and concisely. In this review essay, I argue that Ipse Dixit has made a major contribution to legal scholarship by demonstrating in its interview episodes that law review articles are neither the only nor the best way of communicating scholarly ideas. This contribution should be considered “scholarship,” because one of the primary goals of scholarship is to communicate new ideas.

Court-Packing In 2021: Pathways To Democratic Legitimacy, Richard Mailey

Seattle University Law Review

This Article asks whether the openness to court-packing expressed by a number of Democratic presidential candidates (e.g., Pete Buttigieg) is democratically defensible. More specifically, it asks whether it is possible to break the apparent link between demagogic populism and court-packing, and it examines three possible ways of doing this via Bruce Ackerman’s dualist theory of constitutional moments—a theory which offers the possibility of legitimating problematic pathways to constitutional change on democratic but non-populist grounds. In the end, the Article suggests that an Ackermanian perspective offers just one, extremely limited pathway to democratically legitimate court-packing in 2021: namely, where a Democratic …

Targeting The Texas Citizen Participation Act: The 2019 Texas Legislature's Amendments To A Most Consequential Law, Amy Bresnen, Lisa Kaufman, Steve Bresnen

St. Mary's Law Journal

Few Texas laws enacted in recent decades have had a greater impact on civil litigation or been more litigated than the Texas Citizen’s Participation Act (“TCPA”) passed in 2011. Despite its stated purpose of protecting First Amendment rights, as written, the TCPA’s seemingly limitless application confounded judges and litigants alike, causing the 86th Legislature in 2019 to pass sweeping changes to that law. The Article describes the original statute’s problematic nature, the caselaw interpreting it, and the recent changes’ legislative history and substance. The authors highlight contributions of key legislators and stakeholders. The Article’s extensive treatment of changes to key …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Minority Vetoes In Consociational Legislatures: Ultimately Weaponized?, Devin Haymond

Indiana Journal of Constitutional Design

In societies emerging from or at risk for conflict, dividing power among rival groups—called power-sharing—can be an appropriate arrangement to maintaining peace. But how can groups, who are often emerging from violent conflict, trust sharing a government with rival groups that were just recently shooting at them?

A potential solution is the minority veto, which is allows minority groups to block the government from harming those groups’ vital interests. But what sorts of change blocking mechanisms constitute a minority veto? Who gets the veto power, and when can they be used? Do minority vetoes function as effective incentives for ensuring …

Analyses Of Prosecutorial Power And Discretion In Mississippi: Evaluating Proposals To Address Misconduct And Abuse, Lucy Pruitt

Honors Theses

This thesis seeks to create a policy proposal in order to address incidences of prosecutorial misconduct and abuse of discretion in the Mississippi criminal justice system. To do so, the author has summarized and analyzed seven criminal cases in which defendants have become victims of prosecutorial misconduct in order to shed light on the lack of prosecutorial accountability in the state’s criminal justice system. In an attempt to solve the problem, the author has developed a novel grading rubric in order to objectively and systematically analyze and evaluate previously proposed policy recommendations by legal experts and justice organizations. The successes …

A Section-By-Section Analysis Of Maine's Freedom Of Access Act, Anne C. Lucey

Maine Law Review

There seems to be no absolute freedom of information. Even President Lyndon B. Johnson's declaration made on July 4, 1966, as he signed the Freedom of Information Act (FOIA) into law, indicates the limitations accompanying most right-to-know laws from their inception. A delicate balance must be struck between the public's access to public business and the public interest, between the public's access and a person's right to privacy, and, at the federal level, between the public's access and national security. Maine also crafted a limited freedom of information law, the Freedom of Access Act ("FOAA" or "the Act"), seven years …

Judicial Independence And The Budget: A Taxonomy Of Judicial Budgeting Mechanisms, Alexander Rosselli

Indiana Journal of Constitutional Design

This Paper addresses three aspects of judicial budgeting. First, it will identify the four broad families of constitutional provisions that consider the judicial budget. While the majority of procedures and requirements that govern judicial budgeting are found in statues, many nations’ constitutions explicitly address judicial salaries. Other constitutions only broadly address judicial budgeting. Second, we will analyze different approaches to judicial councils. Third, this Paper will address several different approaches to the judicial budgeting process. This includes how the judiciary’s budget is proposed, as well as how it is allocated and managed. Finally, this Paper will touch upon the tension …

Debt Bondage: How Private Collection Agencies Keep The Formerly Incarcerated Tethered To The Criminal Justice System, Bryan L. Adamson

Northwestern Journal of Law & Social Policy

This Article examines the constitutionality of statutes which allow courts to transfer outstanding legal financial obligations to private debt collection agencies. In Washington State, the clerk of courts can transfer the legal financial obligation of a formerly incarcerated person if he or she is only thirty days late making a payment. Upon transfer, the debt collection agencies can assess a “collection fee” of up to 50% of the first $100.000 of the unpaid legal financial obligation, and up to 35% of the unpaid debt over $100,000. This fee becomes part of the LFO debt imposed at sentencing, and like that …

Racialized Tax Inequity: Wealth, Racism, And The U.S. System Of Taxation, Palma Joy Strand, Nicholas A. Mirkay

Northwestern Journal of Law & Social Policy

This Article describes the connection between wealth inequality and the increasing structural racism in the U.S. tax system since the 1980s. A long-term sociological view (the why) reveals the historical racialization of wealth and a shift in the tax system overall beginning around 1980 to protect and exacerbate wealth inequality, which has been fueled by racial animus and anxiety. A critical tax view (the how) highlights a shift over the same time period at both federal and state levels from taxes on wealth, to taxes on income, and then to taxes on consumption—from greater to less progressivity. Both of these …

Environmental Justice In Little Village: A Case For Reforming Chicago’S Zoning Law, Charles Isaacs

Northwestern Journal of Law & Social Policy

Chicago’s Little Village community bears the heavy burden of environmental injustice and racism. The residents are mostly immigrants and people of color who live with low levels of income, limited access to healthcare, and disproportionate levels of dangerous air pollution. Before its retirement, Little Village’s Crawford coal-burning power plant was the lead source of air pollution, contributing to 41 deaths, 550 emergency room visits, and 2,800 asthma attacks per year. After the plant’s retirement, community members wanted a say on the future use of the lot, only to be closed out when a corporation, Hilco Redevelopment Partners, bought the lot …

Mhpaea & Marble Cake: Parity & The Forgotten Frame Of Federalism, Taleed El-Sabawi

Dickinson Law Review (2017-Present)

No abstract provided.

State Regulatory Responses To The Prescription Opioid Crisis: Too Much To Bear?, Lars Noah

Dickinson Law Review (2017-Present)

In order to prevent further overuse of prescription opioids, states have adopted a variety of strategies. This article summarizes the growing use of prescription drug monitoring programs, crackdowns on “pill mills,” prohibitions on the use of particularly hazardous opioids, limitations on the duration and dosage of prescribed opioids, excise taxes, physician education and patient disclosure requirements, public awareness campaigns, and drug take-back programs. Although occasionally challenged on constitutional grounds, including claims of federal preemption under the Supremacy Clause, discrimination against out-of-state businesses under the dormant Commerce Clause doctrine, and interference with rights of commercial free speech, this article evaluates the …

The Opioid Litigation: The Fda Is Mia, Catherine M. Sharkey

Dickinson Law Review (2017-Present)

It is readily agreed that federal preemption of state tort law alters the balance between federal and state power. Federal preemption is a high-profile defense in almost all modern products liability cases. It is thus surprising to see how little attention has been given to federal preemption by courts and commentators in the opioid litigation. Opioid litigation provides a lens through which I explore the role of state and federal courts and the Food and Drug Administration (FDA) in striking the right balance of power. My purpose here is not to resolve the divide among the few courts that have …

Reflections On The Effects Of Federalism On Opioid Policy, Matthew B. Lawrence

Dickinson Law Review (2017-Present)

No abstract provided.

The Permanent Liminality Of Pakistan's Northern Areas- The Case Of Gilgit-Baltistan, Hamna Tariq

Senior Theses and Projects

Since Pakistan’s inception, Gilgit-Baltistan, a sprawling region in Northern Pakistan, has not been granted provincial status due to its colonial association with the disputed region of Kashmir. Gilgit-Baltistan refutes its forceful integration with Kashmir, an unfortunate remnant of British divide-and-rule strategy, and demands provincial recognition and constitutional rights. Pakistan unfairly claims that it awaits the UN-sanctioned plebiscite in Kashmir to determine the region’s status. However, the likelihood of a plebiscite is little to none, since the Indian government officially annexed Indian-held Kashmir in August 2019, breaching the UN resolution on the plebiscite. A region that has been at the mercy …

May Hospitals Withhold Ventilators From Covid-19 Patients With Pre-Existing Disabilities? Notes On The Law And Ethics Of Disability-Based Medical Rationing, Samuel R. Bagenstos

Law & Economics Working Papers

Thanks to the coronavirus pandemic, the threat of medical rationing is now clear and present. Hospitals faced with a crush of patients must now seriously confront questions of how to allocate scarce resources—notably life-saving ventilators—at a time of severe shortage. In their protocols for addressing this situation, hospitals and state agencies often employ explicitly disability-based distinctions. For example, Alabama’s crisis standards of care provide that “people with severe or profound intellectual disability ‘are unlikely candidates for ventilator support.’” This essay, written as this crisis unfolds, argues that disability-based distinctions like these violate the law. The Americans with Disabilities Act, the …

End Notes, Sustainable Development Law & Policy

Sustainable Development Law & Policy

No abstract provided.

State Preemption And Single Use Plastics: Is National Intervention Necessary?, Ethan D. King

Sustainable Development Law & Policy

No abstract provided.

The Right To Legally Sourced Lumber? How The Effective Enforcement Of The Lacey Act Is A U.S. Human Rights Obligation And Critical To Preventing Abuse In The Illegal Logging Industry, Melanie Hess

Sustainable Development Law & Policy

No abstract provided.

An Ace Up Their Sleeve Or A House Of Cards: Can The Epa's Affordable Clean Energy Rule Withstand Chevron Deference?, Shannon Zaret

Sustainable Development Law & Policy

No abstract provided.