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Full-Text Articles in Law
Resurfacing Sovereignty: Who Regulates Surface Mining In Indian Country After Mcgirt?, Robin M. Rotman, Sam J. Carter
Resurfacing Sovereignty: Who Regulates Surface Mining In Indian Country After Mcgirt?, Robin M. Rotman, Sam J. Carter
Faculty Publications
This article examines disputes over surface mining jurisdiction on the Muscogee (Creek) Nation Reservation post-McGirt and the larger implications for sovereignty and environmental justice in Indian Country that follow. Part II summarizes the history of federal, state, and tribal relations and provides an analysis of the McGirt decision and its potential impacts on natural resource issues. Part III offers an examination of jurisdictional uncertainties post-McGirt through an in-depth discussion of the Surface Mining Control and Reclamation Act and the State of Oklahoma v. United States Department of the Interior case. Drawing from the examination of surface mining regulation, Part IV …
It's None Of Your Business: State Regulation Of Tribal Business Undermines Sovereignty And Justice, Robin M. Rotman, Sam J. Carter
It's None Of Your Business: State Regulation Of Tribal Business Undermines Sovereignty And Justice, Robin M. Rotman, Sam J. Carter
Faculty Publications
The U.S. Constitution grants the federal government plenary power over American Indian affairs, yet states are increasingly attempting to assert regulatory and tax jurisdiction over tribal businesses. This overreach threatens tribal sovereignty and contravenes the terms of treaties entered between the United States and American Indian tribes. This Article begins by examining the legal foundations of federal, state, and tribal relations. It then examines recent cases across four business sectors - gaming, tobacco sales, petroleum sales, and online lending - in order to illustrate the pervasive jurisdictional challenges faced by courts in cases involving tribal businesses. This Article offers three …
Missouri's Residency Restrictions For Medical Marijuana Use, Royce De R. Barondes
Missouri's Residency Restrictions For Medical Marijuana Use, Royce De R. Barondes
Faculty Publications
Missouri's adoption of a constitutional amendment decriminalizing medical marijuana for state law purposes has presented numerous interstitial issues. This article examines one that Missouri's Department of Health and Senior Services ("DHSS") has attempted to address by regulation: residency requirements for qualifying patients. The current regulations add detail to the constitutional requirement that a qualifying patient be a "Missouri resident". They require that a patient must "reside [] in Missouri and not claim resident privileges in another state or country". This article concludes this aspect of the regulations is of dubious tenability.
Reducing The Discount Rate, Ben L. Trachtenberg
Reducing The Discount Rate, Ben L. Trachtenberg
Faculty Publications
This article presents two arguments against the “discounting” of future human lives as part of cost benefit analysis, or CBA. Our first argument is that because CBA has thus far ignored evidence of rising health care expenditures, it underestimates the “willingness to pay” for health and safety that future citizens will likely exhibit, thereby undervaluing their lives. Our second argument is that until recently CBA has ignored the trend of improved material conditions in developed countries, and most agencies continue to ignore it entirely. As time advances, residents of rich countries tend to live better and spend more, meaning that …
Regulatory Litigation In The European Union: Does The U.S. Class Action Have A New Analogue?, S. I. Strong
Regulatory Litigation In The European Union: Does The U.S. Class Action Have A New Analogue?, S. I. Strong
Faculty Publications
This article is the first to consider the European resolution from a regulatory perspective, using a combination of new governance theory and equivalence functionalism to determine whether the European Union has adopted or is in the process of adopting a form of regulatory litigation. In so doing, the article considers a number of issues, including the basic definition of regulatory litigation, how class and collective relief can act as a regulatory mechanism and the special problems that arise when regulatory litigation is used in the transnational context. The article also includes a normative element, providing a number of suggestions on …
Tinkering With The Machinery Of Life, Ben L. Trachtenberg
Tinkering With The Machinery Of Life, Ben L. Trachtenberg
Faculty Publications
Recent adjustments by the Environmental Protection Agency (EPA) and the Department of Transportation (DOT) to their cost–benefit analysis procedures could cause tremendous changes to federal regulation. For decades, federal agencies have calculated the value of a statistical life (VSL) and have used that number when evaluating the costs and benefits of proposed regulations. If a regulation was expected to save lives, the number of lives saved could be multiplied by the VSL to monetize the benefits. Because, however, lives saved in the future were given the same nominal value as lives saved in the present, the real value of future …
Health Inflation, Wealth Inflation, And The Discounting Of Human Life, Ben L. Trachtenberg
Health Inflation, Wealth Inflation, And The Discounting Of Human Life, Ben L. Trachtenberg
Faculty Publications
This article presents two new arguments against “discounting” future human lives during cost-benefit analysis, arguing that even absent ethical objections to the disparate treatment of present and future humanity, the economic calculations of cost-benefit analysis itself - if properly calculated - counsel against discounting lives at anything close to current rates. In other words, even if society sets aside all concerns with the discounting of future generations in principle, current discounting of future human lives cannot be justified even on the discounters’ own terms. First, because cost-benefit analysis has thus far ignored evidence of rising health care expenditures, it underestimates …
Plurality Of Political Opinion And The Concentration Of Media In The United States, William B. Fisch
Plurality Of Political Opinion And The Concentration Of Media In The United States, William B. Fisch
Faculty Publications
This paper reviews regulatory efforts of the U.S. federal govern- ment to promote viewpoint diversity in broadcast media (radio, television, cable, and satellite) in the face of increasing concentration of ownership of such media, and the impact on such efforts of the free- doms of speech and press embodied in the First Amendment to the federal constitution. With respect to this issue, the regulatory work has been done overwhelmingly by the Federal Communications Commis- sion, operating under an act of Congress which has been amended from time to time to push the FCC in particular directions. The anti- trust laws …
A Tale Of Three Statutes . . . (And One Industry): A Case Study On The Competitive Effects Of Regulation, Rafael Gely
A Tale Of Three Statutes . . . (And One Industry): A Case Study On The Competitive Effects Of Regulation, Rafael Gely
Faculty Publications
The comparison of the three labor regulatory regimes raises an interesting counterexample to the traditional model of regulation. Instead of adopting a one-size-fits-all model, could a regulatory model be conceptualized where a menu of regulatory options is made available to the target population? Under such an approach those affected by the regulatory regime will choose among the various regulatory options and adopt those that better fit their particular situations. Part IV.B develops the basic parameters of this proposal. The article ends with a brief conclusion.
A Rational Choice Theory Of Supreme Court Statutory Decisions With Applications To The State Farm And Grove City Cases, Rafael Gely, Pablo T. Spiller
A Rational Choice Theory Of Supreme Court Statutory Decisions With Applications To The State Farm And Grove City Cases, Rafael Gely, Pablo T. Spiller
Faculty Publications
In this article we follow the recent developments of the modern theory of administrative agencies, by developing a rational choice theory of the Supreme Court. Our framework combines two of the main characteristics of this literature: namely, the rational choice modeling strategy with the notion that institutions matter in the design of public policy. We differ basically by modeling the Supreme Court as a self-interested, ideologically motivated institution, making its decisions subject not to the traditional legal rules of precedent, but to the constraints arising from the political interests of other institutions of government-namely, Congress and the President.