Law Commons^™

Delegating Climate Authorities, Mark P. Nevitt

Faculty Articles

The science is clear: the United States and the world must take dramatic action to address climate change or face irreversible, catastrophic planetary harm. Within the U.S.—the world’s largest historic emitter of greenhouse gas emissions—this will require passing new legislation or turning to existing statutes and authorities to address the climate crisis. Doing so implicates existing and prospective delegations of legislative authority to a large swath of administrative agencies. Yet congressional climate decision-making delegations to any executive branch agency must not dismiss the newly resurgent nondelegation doctrine. Described by some scholars as the “most dangerous idea in American law,” the …

White Supremacy, Police Brutality, And Family Separation: Preventing Crimes Against Humanity Within The United States, Elena Baylis

Articles

Although the United States tends to treat crimes against humanity as a danger that exists only in authoritarian or war-torn states, in fact, there is a real risk of crimes against humanity occurring within the United States, as illustrated by events such as systemic police brutality against Black Americans, the federal government’s family separation policy that took thousands of immigrant children from their parents at the southern border, and the dramatic escalation of White supremacist and extremist violence culminating in the January 6, 2021 attack on the U.S. Capitol. In spite of this risk, the United States does not have …

The Runaway Presidential Power Over Diplomacy, Jean Galbraith

All Faculty Scholarship

The President claims exclusive control over diplomacy within our constitutional system. Relying on this claim, executive branch lawyers repeatedly reject congressional mandates regarding international engagement. In their view, Congress cannot specify what the policy of the United States is with respect to foreign corruption, cannot bar a technology-focused agency from communicating with China, cannot impose notice requirements for withdrawal from a treaty with Russia, cannot instruct Treasury officials how to vote in the World Bank, and cannot require the disclosure of a trade-related report. And these are just a few of many examples from recent years. The President’s assertedly exclusive …

Congress's Domain: Appropriations, Time, And Chevron, Matthew B. Lawrence

Faculty Articles

Annual appropriations and permanent appropriations play contradictory roles in the separation of powers. Annual appropriations preserve agencies’ need for congressionally provided funding and enforce a domain of congressional influence over agency action in which the House and the Senate each enforce written unicameral commands through the threat of reduced appropriations in the next annual cycle. Permanent appropriations permit agencies to fund their programs without ongoing congressional support, circumscribing and diluting Congress’s domain.

The unanswered question of Chevron deference for appropriations demonstrates the importance of the distinction between annual appropriations and permanent appropriations. Uncritical application of governing deference tests that emphasize …

Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang

All Faculty Scholarship

Our aim in this essay is to leverage archival research, data and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, as a means to illuminate the prospects for retrenchment in the current political landscape. We follow the scheme of the book by separately considering the prospects for federal litigation retrenchment in three lawmaking sites: Congress, federal court rulemaking under the Rules Enabling Act, and the Supreme Court. Although pertinent data on current retrenchment initiatives are limited, our historical data and comparative institutional perspectives should afford a basis for informed prediction. Of course, little in …

Agenda: Flpma Turns 40, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

FLPMA Turns 40 (October 21)

The Bureau of Land Management (BLM) administers approximately 245 million acres of our public lands and yet, for most of our nation's history, these lands seemed largely destined to end up in private hands. Even when the Taylor Grazing Act of 1934 ushered in an important era of better managing public grazing districts and "promoting the highest use of the public lands," such use of our public lands still was plainly considered temporary, "pending its final disposal." It was not until 1976 with the passage of the Federal Land Policy and Management Act (FLPMA) that congress adopted a policy that …

Slides: Flpma In Its Historical Context, John D. Leshy

FLPMA Turns 40 (October 21)

Presenter: John D. Leshy, Sunderland Distinguished Professor of Law Emeritus, U.C. Hastings College of the Law

36 slides

This session traces the history of FLPMA including, among other things, its legislative, administrative, and historical antecedents, including for example, the Public Land Law Review Commission’s 1970 report, One Third of Our Nation’s Lands. It then considers FLPMA’s unique public lands policies and requirements and how they are reflected in the BLM’s management of public lands today.

See: https://www.nps.gov/parkhistory/online_books/blm/history/contents.htm

Agenda-Setting In The Regulatory State: Theory And Evidence, Cary Coglianese, Daniel E. Walters

All Faculty Scholarship

Government officials who run administrative agencies must make countless decisions every day about what issues and work to prioritize. These agenda-setting decisions hold enormous implications for the shape of law and public policy, but they have received remarkably little attention by either administrative law scholars or social scientists who study the bureaucracy. Existing research offers few insights about the institutions, norms, and inputs that shape and constrain agency discretion over their agendas or about the strategies that officials employ in choosing to elevate certain issues while putting others on the back burner. In this article, we advance the study of …

Is Military Justice Sentencing On The March? Should It Be? And If So, Where Should It Head? Court-Martial Sentencing Process, Practice, And Issues, James E. Baker

Georgetown Law Faculty Publications and Other Works

This article starts with a sketch of the military justice system to orient readers. Understanding that structure, the article then describes the sentencing process for special and general courts-martial. The article follows by identifying two core military sentencing questions: First, should commanders have authority to grant clemency? Second, should the military justice system adopt sentencing guidelines? With respect to each topic presented, the article does not attempt to answer the questions nor offer prescriptions. Rather, it seeks to identify the principal fault lines around which debate should, or will likely, fall. The article next presents ‘‘nutshell’’ introductions to additional sentencing …

Slides: Best Management Practices For Oil And Gas Development And Comparative Water Quality Database Of Regulations Relating To Shale Oil And Gas, Matt Samelson, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment. Intermountain Oil And Gas Bmp Project

Fracking, Water Quality and Public Health: Examining Current Laws and Regulations (March 20)

Presenter: Matt Samelson, J.D., Attorney, Consultant for Intermountain Oil and Gas Best Management Practices (BMP) Project, Getches-Wilkinson Center for Natural Resources, Energy and the Environment, University of Colorado Law School

34 slides

Copyright’S Private Ordering And The 'Next Great Copyright Act', Jennifer E. Rothman

All Faculty Scholarship

Private ordering plays a significant role in the application of intellectual property laws, especially in the context of copyright law. In this Article, I highlight some of the dominant modes of private ordering and consider what formal copyright law should do, if anything, to engage with private ordering in the copyright space. I conclude that there is not one single approach that copyright law should take with regard to private ordering, but instead several different approaches. In some instances, the best option is for the law to get out of the way and simply continue to provide room for various …

Roundtable Discussion Transcript: The Legal And Ethical Limits Of Technological Warfare Symposium, February 1, 2013, University Of Utah, S.J. Quinney College Of Law, Amos N. Guiora, Harry Soyster, David R. Irvine, Geoffrey S. Corn, James Jay Carafano, Claire O. Finkelstein, Laurie R. Blank, Monica Hakimi, George R. Lucas, Trevor W. Morrison, Frederic Megret

All Faculty Scholarship

The Utah Law Review brought in a panel of experts for a symposium on the legal and ethical limits of technological warfare. This roundtable discussion crystalized the issues discussed throughout the symposium. The collective experience and diversity of viewpoints of the panelists produced an unparalleled discussion of the complex and poignant issues involved in drone warfare. The open dialogue in the roundtable discussion created moments of tension where the panelists openly challenged each other’s viewpoints on the ethics and legality of drone warfare. The discussion captured in this transcript uniquely conveys the diversity of perspectives and inherently challenging legal and …

Agenda: The Future Of Natural Resources Policy, University Of Colorado Boulder. Natural Resources Law Center

The Future of Natural Resources Policy (December 6)

This forum will provide a post-election perspective on some of the challenges and opportunities that natural resources, public lands, and energy policymakers in Washington are likely to face in the next four years. An expert panel will discuss the dynamics in the Department of the Interior, the Department of Agriculture, and Congress, and how their evolving policies are likely to affect Colorado in the coming years.

Moderator: Dean Phil Weiser, University of Colorado Law School

Panelists:

Jay Jensen, Associate Director for Land & Water Ecosystems, White House Council on Environmental Quality

Scott Miller, Visiting Assistant Professor, University of Colorado Law …

The Power To Block The Affordable Care Act: What Are The Limits?, John D. Kraemer, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Though Supreme Court upheld most parts of the Affordable Care Act (ACA), Congress’ goals in enacting it could still be frustrated by non-implementation. During his campaign for president, Governor Romney promised “to issue Obamacare waivers to all fifty states.” While such blanket waivers would likely violate the Constitution’s Take Care Clause, the ACA does permit other waivers. To be lawful, however, they must meet certain requirements designed to enhance access and lower cost. A president who opposes the ACA might be able to limit its implementation by refusing to issue premium subsidies in federally operated insurance exchanges, and this might …

Slides: Evolving Policy On Shale Plays, John Martin

Shale Plays in the Intermountain West: Legal and Policy Issues (November 12)

Presenter: John Martin, Crowell & Moring, LLP, Washington, DC

17 slides

Slides: Second Thoughts About The Antiquities Act: Does The Process For Public Land Decisionmaking Have An Ethical Dimension?, James R. Rasband

The Past, Present, and Future of Our Public Lands: Celebrating the 40th Anniversary of the Public Land Law Review Commission’s Report, One Third of the Nation’s Land (Martz Summer Conference, June 2-4)

Presenter: James R. Rasband, Dean of the J. Reuben Clark Law School, Brigham Young University (Provo, UT)

32 slides

Slides: Livestock Grazing On The Public Lands, Joe Feller

The Past, Present, and Future of Our Public Lands: Celebrating the 40th Anniversary of the Public Land Law Review Commission’s Report, One Third of the Nation’s Land (Martz Summer Conference, June 2-4)

Presenter: Joe Feller, Professor of Law, Arizona State University Law School; Visiting Professor, University of Colorado Law School

33 slides

Slides: Chapter 7 Of The Commission Report, David L. Bernhardt

The Past, Present, and Future of Our Public Lands: Celebrating the 40th Anniversary of the Public Land Law Review Commission’s Report, One Third of the Nation’s Land (Martz Summer Conference, June 2-4)

Presenter: David L. Bernhardt, Partner, Brownstein Hyatt Farber Schreck (Washington, DC) and former Solicitor for U.S. Department of the Interior

14 slides

Slides: Water Management On Public Lands: Chapter 8 Of The Pllrc Report, Michael Gheleta

The Past, Present, and Future of Our Public Lands: Celebrating the 40th Anniversary of the Public Land Law Review Commission’s Report, One Third of the Nation’s Land (Martz Summer Conference, June 2-4)

Presenter: Michael Gheleta, U.S. Department of the Interior, Office of the Solicitor (Lakewood, CO)

12 slides

Slides: America's Redrock Wilderness, Scott Groene

The Past, Present, and Future of Our Public Lands: Celebrating the 40th Anniversary of the Public Land Law Review Commission’s Report, One Third of the Nation’s Land (Martz Summer Conference, June 2-4)

Presenter: Scott Groene, Executive Director, Southern Utah Wilderness Alliance (Moab, UT)

23 slides

Reminiscences, John A. Carver Jr.

The Past, Present, and Future of Our Public Lands: Celebrating the 40th Anniversary of the Public Land Law Review Commission’s Report, One Third of the Nation’s Land (Martz Summer Conference, June 2-4)

7 pages.

Slides: The Promise And Peril Of Oil Shale: Federal Law And Policy, David Bernhardt

The Promise and Peril of Oil Shale Development (February 5)

Presenter: David Bernhardt, Brownstein Hyatt Farber Schreck, Denver, CO

13 slides

Slides: Challenges For Reclamation: A Western States' Perspective, Craig Bell

Western Water Law, Policy and Management: Ripples, Currents, and New Channels for Inquiry (Martz Summer Conference, June 3-5)

Presenter: Craig Bell, Western Water States Council, Midvale, Utah

9 slides

Slides: Rapanos And The Courts: Navigating Through The Fog, Jim Murphy

Western Water Law, Policy and Management: Ripples, Currents, and New Channels for Inquiry (Martz Summer Conference, June 3-5)

Presenter: Jim Murphy, Wetlands and Water Resources Counsel, National Wildlife Federation, VT

25 slides

Slides: Water Needs And Strategies For A Sustainable Future, Shaun Mcgrath

Shifting Baselines and New Meridians: Water, Resources, Landscapes, and the Transformation of the American West (Summer Conference, June 4-6)

Presenter: Shaun McGrath, Program Director, Western Governors’ Association

25 slides

Slides: Forest And Rangeland Planning, Nepa Analysis And Decisions, Glenn Casamassa

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: Glenn Casamassa, Forest Supervisor, Arapahoe-Roosevelt National Forest

17 slides

Slides: The Roadless Rules And The Roles Of States And Communities, Sharon Friedman

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: Sharon Friedman, Director of Planning, USDA Forest Service, Rocky Mountain Region

13 slides

Slides: Dam Building And Removal On The Elwha: A Prototype Of Adaptive Mismanagement And A Tribal Opportunity, William H. Rodgers, Jr.

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: William H. Rodgers, Jr., Stimson Bullitt Professor of Environmental Law, University of Washington School of Law

77 slides

Slides: The Future Of Oil And Gas Development On Federal Lands, Mike Chiropolos

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: Mike Chiropolos, Lands Program Director, Western Resource Advocates

44 slides

Justice Delayed: A Tribal Attorney’S Perspective On Elwha River Dam Removal And Ecosystem Restoration, Russell W. Busch

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: Russell W. Busch, Attorney for the Lower Elwha Klallam Tribe

10 pages.