Seattle University School of Law
Goethe University
Boston College Law School
University of Barcelona
Alexander Blewett III School of Law at the University of Montana
Pepperdine University
University of Maryland
Kloker V. Fort Peck Tribes,
2019
Alexander Blewett III School of Law at the University of Montana
Kloker V. Fort Peck Tribes, Hallee Kansman
Public Land & Resources Law Review
Kloker v. Fort Peck Tribes investigates and deciphers the application of the Indian canons of construction to the congressional formation and establishment of the Fort Peck reservation in Montana. In general, courts interpret congressional acts creating reservations through the lens of the tribal-federal government trust relationship. Although this case examines different substantive models of legal interpretation and theories of water law, the ultimate dispute is textual in nature—questioning the plain language of the establishment legislation itself.
Hoopa Valley Tribe V. Ferc, 913 F.3d 1099 (D.C. Cir. 2019),
2019
University of Montana
Hoopa Valley Tribe V. Ferc, 913 F.3d 1099 (D.C. Cir. 2019), Fredrick Aaron Rains
Public Land & Resources Law Review
In Hoopa Valley Tribe v. FERC, the Hoopa Valley Tribe challenged the intentional and continual delay of state water quality certification review of water discharged from a series of dams on the Klamath River in California and Oregon. The Federal Energy Regulatory Commission, the states of Oregon and California, and PacifiCorp, a hydroelectric operator, were implementing an administrative scheme designed to circumvent a one-year temporal requirement for review imposed on states by the Clean Water Act. This scheme allowed PacifiCorp to operate the series of dams for over a decade without proper state water quality certification. The United States Court ...
Murray V. Bej Minerals, Llc,
2019
Alexander Blewett III School of Law at the University of Montana
Murray V. Bej Minerals, Llc, Brett Berntsen
Public Land & Resources Law Review
Part of a dispute some 66 million years in the making, Murray v. BEJ Minerals, LLC considered for the first time whether dinosaur fossils—specifically a one-of-a-kind specimen containing entombed “dueling dinosaurs”—qualified as “minerals” for the purposes of a property transaction under Montana law. Finding no consistent statutory or dictionary definition for “mineral,” the Ninth Circuit relied on a test previously utilized by the Montana Supreme Court to hold that the dinosaur fossils constituted minerals due to their rare and exceptional qualities and were therefore part of the property’s mineral estate. The decision was promptly nullified, however, as ...
Narrowing In On The Problem: A Component-Level Analysis Of "Hybrid" Medical Devices,
2019
Boston College Law School
Narrowing In On The Problem: A Component-Level Analysis Of "Hybrid" Medical Devices, Jillian Friedmann
Boston College Law Review
The Medical Device Amendments of 1976 (“MDA”) classify medical devices into three categories, each of which represents a different level of risk, and requires a different level of federal oversight. Class III devices, which pose the most risk, are subject to the highest level of oversight. Those devices are protected from any claims based on state laws that differ from or add to the requirements imposed by the MDA. On March 1, 2018, the United States Court of Appeals for the Third Circuit, in Shuker v. Smith & Nephew, PLC, considered the application of preemption under the MDA to a “hybrid ...
Appeal No. 0966: Hardesty Production V. Division Of Oil & Gas Resources Management,
2019
Case Western Reserve University School of Law
Appeal No. 0966: Hardesty Production V. Division Of Oil & Gas Resources Management, Ohio Oil & Gas Commission
Ohio Oil & Gas Commission Decisions
Review of Chief's Order 2018-242
How Chevron Deference Is Inappropriate In U.S. Fishery Management And Conservation,
2019
N/A
How Chevron Deference Is Inappropriate In U.S. Fishery Management And Conservation, Charles T. Jordan
Seattle Journal of Environmental Law
Well managed fisheries represent an excellent source of sustainable food making the management of which incredibly important. The management of fisheries in the United States is governed by The Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA). While the Act creates strong goals and mandates to ensure the best management of fisheries as an important natural resource, there are issues of delegation within the act. The MSFCMA ultimately delegates authority to eight regional councils which are made up of unelected and un-appointed members. The membership of these councils is at risk of industry influence with little legal protections. Critical in how ...
Save Our Sound Obx, Inc. V. North Carolina Department Of Transportation,
2019
Alexander Blewett III School of Law at the University of Montana
Save Our Sound Obx, Inc. V. North Carolina Department Of Transportation, Mitch L. Werbell V
Public Land & Resources Law Review
The Fourth Circuit Court of Appeals recently ruled in favor of several governmental agencies seeking to construct a new bridge in the Pamlico Sound adjacent to North Carolina’s Outer Banks. For years, state and federal agencies have put forth a massive coordinated effort to address the constant weather damage and erosion which occurs to a section of North Carolina Highway 12. The court found the agencies properly cleared NEPA’s environmental review requirements for the bridge’s construction. Additionally, the opponent-litigants’ efforts to add claims challenging the project, based on new information about a shipwreck in the bridge’s ...
Enough Is Enough: Ten Years Of Carcieri V. Salazar,
2019
Alexander Blewett III School of Law at the University of Montana
Enough Is Enough: Ten Years Of Carcieri V. Salazar, Bethany C. Sullivan, Jennifer L. Turner
Public Land & Resources Law Review
Ten years ago, the United States Supreme Court issued its watershed decision in Carcieri v. Salazar, landing a gut punch to Indian country. Through that decision, the Supreme Court upended decades of Department of the Interior regulations, policy, and practice related to the eligibility of all federally recognized tribes for the restoration of tribal homelands through the Indian Reorganization Act (IRA) of 1934. The Court held that tribes must demonstrate that they were “under federal jurisdiction” in 1934 to qualify for land into trust under the first definition of “Indian” in the IRA. Carcieri has impacted all tribes by upending ...
Toll-Free Assignment Modernization And The Triumph Of Coase,
2019
Boston College Law School
Toll-Free Assignment Modernization And The Triumph Of Coase, Daniel A. Lyons
Daniel Lyons
No abstract provided.
To Narrow The Digital Divide, The Fcc Should Not Simply Extend Lifeline To Broadband,
2019
Boston College Law School
To Narrow The Digital Divide, The Fcc Should Not Simply Extend Lifeline To Broadband, Daniel A. Lyons
Daniel Lyons
No abstract provided.
The Congressional Review Act And The Toxic Politics Of Net Neutrality,
2019
Boston College Law School
The Congressional Review Act And The Toxic Politics Of Net Neutrality, Daniel A. Lyons
Daniel Lyons
No abstract provided.
The Antideficiency Act Charade: A Low-Key Separation Of Powers Drama,
2019
Boston College Law School
The Antideficiency Act Charade: A Low-Key Separation Of Powers Drama, Daniel A. Lyons
Daniel Lyons
No abstract provided.
E-Rulemaking And The Politicization Of The Comment Process,
2019
Boston College Law School
E-Rulemaking And The Politicization Of The Comment Process, Daniel A. Lyons
Daniel Lyons
No abstract provided.
Revisiting Net Neutrality,
2019
Boston College Law School
The Administrative Law Of Deregulation: The Long Road For The Trump Administration To Undo Obama-Era Regulations,
2019
Boston College Law School
The Administrative Law Of Deregulation: The Long Road For The Trump Administration To Undo Obama-Era Regulations, Daniel A. Lyons
Daniel Lyons
No abstract provided.
The Right Way To Protect Privacy Throughout The Internet Ecosystem,
2019
Boston College Law School
The Right Way To Protect Privacy Throughout The Internet Ecosystem, Daniel A. Lyons
Daniel Lyons
No abstract provided.
Institutional Independence: Lawyers And The Administrative State,
2019
University of Oklahoma College of Law
Institutional Independence: Lawyers And The Administrative State, Melissa Mortazavi
Fordham Law Review
The institutional structure where federal government lawyers practice is fraught with political and economic pressures that undermine the ability of lawyers to exercise independent professional judgment. A lack of candid legal advice in this space not only removes a pivotal fail-safe between legal and illegal state action but also precariously imbalances the powerful administrative state, exposing it to undue political influence. For these reasons, this Article argues that structural changes to administrative institutions must be made to support and nurture lawyers’ ability to independently determine the bounds of legality. Previous scholarship has examined the role of professional independence for lawyers ...
Differentiating Legislative From Nonlegislative Rules: An Empirical And Qualitative Analysis,
2019
Fordham University School of Law
Differentiating Legislative From Nonlegislative Rules: An Empirical And Qualitative Analysis, Nadav D. Ben Zur
Fordham Law Review
The elusive distinction between legislative rules and nonlegislative rules has frustrated courts, motivated voluminous scholarly debate, and ushered in a flood of litigation against administrative agencies. In the absence of U.S. Supreme Court guidance on the proper demarcating line, circuit courts have adopted various tests to ascertain a rule’s proper classification. This Note analyzes all 241 cases in which a circuit court has used one or more of the enunciated tests to differentiate legislative from nonlegislative rules. These opinions come from every one of the thirteen circuits and span the period of the early 1950s through 2018. This ...
Policing Cyberspace: The Uncertain Future Of Data Privacy And Security Enforcement In The Wake Of Labmd,
2019
Boston College Law School
Policing Cyberspace: The Uncertain Future Of Data Privacy And Security Enforcement In The Wake Of Labmd, Julia Whall
Boston College Law Review
On June 6, 2018, in LabMD, Inc. v. Federal Trade Commission (LabMD III), the U.S. Court of Appeals for the Eleventh Circuit vacated a Federal Trade Commission order that required a small medical laboratory to maintain a reasonable data security program following a data breach. The case presented the Eleventh Circuit with the opportunity to clarify the FTC’s data privacy and security enforcement powers under Section 5 of the FTC Act. The court, however, only addressed this issue briefly in dicta, and instead held that the order was unenforceable because it was overly-broad. This Comment argues that Eleventh ...
Lessons Learned: Thomas C. Baxter, Jr., Esq.,
2019
Yale University
Lessons Learned: Thomas C. Baxter, Jr., Esq., Alec Buchholtz, Rosalind Z. Wiggins
Journal of Financial Crises
Baxter, who was General Counsel of the Federal Reserve Bank of New York during the crisis, gives us his take on how best to prepare for future crises.
