Law Commons^™

Addiction And Liberty, Matthew B. Lawrence

Faculty Articles

This Article explores the interaction between addiction and liberty and identifies a firm legal basis for recognition of a fundamental constitutional right to freedom from addiction. Government interferes with freedom from addiction when it causes addiction or restricts addiction treatment, and government may protect freedom from addiction through legislation empowering individuals against private actors’ efforts to addict them without their consent. This Article motivates and tests the boundaries of this right through case studies of emergent threats to liberty made possible or exacerbated by new technologies and scientific understandings. These include certain state lottery programs, addiction treatment restrictions, and smartphone …

Climate Security Insights From The Covid-19 Response, Mark P. Nevitt

Faculty Articles

The climate change crisis and COVID-19 crisis are both complex collective action problems. Neither the coronavirus nor greenhouse gas (GHG) emissions respect political borders. Both impose an opportunity cost that penalizes inaction. They are also increasingly understood as nontraditional, novel security threats. Indeed, COVID-19’s human cost is staggering, with American lives lost vastly exceeding those lost in recent armed conflicts. And climate change is both a threat accelerant and a catalyst for conflict—a characterization reinforced in several climate-security reports. To counter COVID-19, the President embraced martial language, stating that he will employ a “wartime footing” to “defeat the virus.” Perhaps …

Total Return Meltdown: The Case For Treating Total Return Swaps As Disguised Secured Transactions, Colin P. Marks

Faculty Articles

Archegos Capital Management, at its height, had $35 billion in assets. But in the spring of 2021, in part through its use of total return swaps, Archegos sparked a $30 billion dollar sell-off that left many of the world's largest banks footing the bill. Mitsubishi UFJ Group estimated a loss of $300 million; UBS, Switzerland's biggest bank, lost $861 million; Morgan Stanley lost $911 million; Japan's Nomura lost $2.85 billion; but the biggest hit came to Credit Suisse Group AG, which lost $5.5 billion. Archegos itself lost $20 billion over two days. The unique characteristics of total return swaps and …

The First Woman Dean Of A Texas Law School: Barbara Bader Aldave At St. Mary's University, Vincent R. Johnson

Faculty Articles

Long-time St. Mary's law professor Vincent Johnson details the arrival and tenure of Barbara Bader Aldave as Dean of St. Mary's University School of Law.

The Market-Essential Role Of Corporate Climate Disclosure, George S. Georgiev

Faculty Articles

This Article focuses on capital market efficiency as an often-downplayed legal rationale for mandating corporate climate disclosure, and explores it alongside the notion of investor demand, which has assumed a prominent and, increasingly, contested role in debates on climate disclosure. Because market efficiency (encompassing both securities price accuracy and overall capital market allocative efficiency) is generally unobservable, many commentators have instead emphasized the highly visible investor demand for climate-related disclosure as evidenced by shareholder proposals, voting behavior, stewardship policies, and public statements. Unfortunately, investor demand can be disputed, fairly or unfairly, because investor preferences are heterogeneous, dynamic, and difficult to …

When Police Discursive Violence Interacts With Intimate Partner Violence, Janet Ainsworth

Faculty Articles

Linguists analyzing the practices of American-style police interrogation have revealed the discursive attributes of police interrogation that can, often unwittingly, induce false confessions from suspects. Further, psychologists have identified a number of factors that can make particular subjects of police interrogation especially vulnerable to false confessions under interrogation. This article suggests that women who have been victims of serial domestic violence may be a heretofore unrecognized class of those particularly vulnerable individuals. Because the psychodynamics of American-style police interrogation so closely parallel the psychodynamics of intimate terroristic domestic violence, victims of domestic violence may react to police interrogation with the …

The Public Trust Doctrine And The Chicago Lakefront, Michael Blumm

Faculty Articles

Lakefront: Public Trust and Private Rights in Chicago is Joseph Kearney and Thomas Merrill’s engaging account of how public law affected the development of the Chicago lakefront, is a meticulously detailed history of a century-and-a-half of law and urban affairs. The authors center the book around what they call the Great Lake Front Case, otherwise known as Illinois Central Railroad v. Illinois, a U.S. Supreme Court decision in 1892. They claim that case created the American public trust doctrine, but in fact the Court endorsed public ownership of streambeds a half-century earlier. What the 1892 decision did was to extend …

Constitutionalizing The Public Trust Doctrine In Chile, Michael Blumm, Matthew Hebert

Faculty Articles

Chile, whose public has experienced widespread dissatisfaction with Chilean environmental policies, seems poised to use the ongoing redrafting of its constitution to entrench the public trust doctrine in its fundamental charter. The ancient doctrine, emanating from Roman law and reflected in the 13th century Spanish treatise, Las Siete Partidas, offers the promise of making publicly enforceable commitments to environmental protection that under current Chilean law have been discretionary, and therefore unfulfilled. This paper explains what the public trust doctrine would mean to Chileans if the constitutional drafting process, scheduled for completion in 2022, includes the public trust doctrine, as advocated …

The World's Largest Ecosystem Management Plan: The Northwest Forest Plan After A Quarter-Century, Michael Blumm, Susan Jane Brown, Chelsea Stewart-Fusek

Faculty Articles

For decades, the public forests of the Pacific Northwest were subject to widespread clearcutting of its old-growth trees as part of a federal policy promoting industrial logging. That era came to end in the early 1990s, due to court injunctions enforcing environmental laws like the National Environmental Policy Act and the National Forest Management Act, a response to diminishing old-growth dependent species like the northern spotted owl. Fulfilling a campaign promise to resolve the contentious issue by protecting both wildlife habitat and a logging industry important to local communities, President Clinton and his administration conducted a remarkable 1993 symposium on …

Federal Grazing Lands And Their Suitability As 'Conservation Lands' In The 30 By 30 Program, Michael Blumm, Kacey Hovden, Greg Allen

Faculty Articles

This paper assesses whether federal grazing lands can qualify as "conservation lands" for inclusion in the 30 by 30 program, the Biden Administration's promise to conserve 30 percent of U.S. lands by the year 2030. After surveying the legal landscape under which these lands are managed, we conclude that Congress has established a uniform but overlooked standard for grazing lands: nonimpairment of the productivity of the land. If actually applied to grazing lands, the standard could define 30 by 30 conservation lands make those lands eligible for inclusion in the 30 by 30 program. However, since neither of the principal …

30 By 30, Areas Of Critical Environmental Concern, And The Protection Of Tribal Cultural Lands, Michael Blumm, Greg Allen

Faculty Articles

Among the most innovative provisions of the Federal Land Policy and Management Act (FLPMA) of 1976 were those called for the Bureau of Land Management (BLM)to designate public lands as “areas of critical environmental concern” (ACECs) for protective management. In fact, FLPMA made it quite clear that national policy was to give ACECs priority in public land planning. Nearly a half-century later, the ACEC program has failed to achieve its promise, beset with inconsistent management and lacking even programmatic regulations. BLM did attempt to revitalize the program in revised planning regulations the agency promulgated in 2016, but Congress exercised its …

Walker Lake And The Public Trust In Nevada's Waters, Michael Blumm, Michael Benjamin Smith

Faculty Articles

Walker Lake, a terminal desert lake in western Nevada’s Mineral County, was once home to a thriving trout fishery that sustained the Walker River tribe but has become an ecological wasteland due to irrigation diversions. The county recently intervened in a longstanding federal water rights adjudication, seeking some restoration of the lake’s water level, relying on the public trust doctrine. In a 2020 landmark decision, the Nevada Supreme Court ruled that the public trust doctrine applied to all waters and all water rights in the state. The court also recognized that the doctrine was not only embedded in the state’s …

Adapting To A 4°C World, Melissa Powers, Karrigan Bork, Karen Bradshaw, Cinnamon Piñon Carlarne, Robin Kundis Craig, Sarah Fox, Joshua Galperin, Keith Hirokawa, Shi-Ling Hsu, Katrina Fischer Kuh, Kevin J. Lynch, Michele Okoh, Jessica Owley, Shannon Roesler, J. B. Ruhl, James E. Salzman, David Takacs, Clifford Villa

Faculty Articles

The Paris Agreement’s goal to hold warming to 1.5°-2°C above pre-industrial levels now appears unrealistic. Profs. Robin Kundis Craig and J.B. Ruhl have recently argued that because a 4°C world may be likely, we must recognize the disruptive consequences of such a world and respond by reimagining governance structures to meet the challenges of adapting to it. In this latest in a biannual series of essays, they and other members of the Environmental Law Collaborative explore what 4°C might mean for a variety of current legal doctrines, planning policies, governance structures, and institutions.

The Sec And Climate Risk, Lisa Benjamin

Faculty Articles

The time has never been better for the Securities and Exchange Commission (SEC) to regulate climate change disclosures. However, the agency has a poor track record in mandating climate and other specialized disclosures from public corporations. Its 2010 guidance on climate-related disclosures was sparsely enforced. Its 2012 conflict minerals rule was partially invalidated by the courts, and in 2019 and 2020 the agency failed to include climate disclosures when modernizing rules and guidelines on corporate disclosures. These past failures were due to agency inertia, which was facilitated by a combination of lack of political feasibility, strong business resistance to specialized …

The World’S Largest Dam Removal Project: The Klamath River Dams, Michael Blumm, Dara Illowsky

Faculty Articles

The Klamath River, draining some 12,000 square miles in southern Oregon and northern California, was once the third largest salmon stream on the West Coast, the life force of Native Americans. The river runs 263 miles from headwaters in Oregon and flows through the Cascades to the Pacific Ocean south of Crescent City, California. The river is unusual in that its origin is near the arid deserts of eastern Oregon and proceeds to run through temperate rainforests of California through a considerable amount of federal and Tribal lands.

Tribal Consultation: Toward Meaningful Collaboration With The Federal Government, Michael Blumm, Lizzy Pennock

Faculty Articles

One of bedrock principles of federal Indian law is a centuries-old understanding that the tribes, as “domestic dependent nations,” have “government-to-government” relationship with the federal government, which has a trust obligation concerning the tribes, their sovereignty, and their cultural resources. Although this relationship was first judicially articulated in the 19th century, it was interpreted to require federal “consultation” with the tribes under a series of executive orders beginning in the 1970s and the National Historic Preservation Act. However, this government-to-government consultation has been largely disappointed the tribes, which have often complained that federal agencies have reduced it to procedural “box-checking,” …

Emerging Best Practices In International Atmospheric Trust Case Law, Rachel Pemberton, Michael Blumm

Faculty Articles

As climate-change cases proliferate throughout the world, a substantial body of case law is emerging. As a part of a project of the IUCN World Commission on Environmental Law, this paper, which will included a "Judicial Handbook on Climate Litigation," explains the public trust doctrine's influence internationally. We select what we view as judicial "best practices" as a kind of restatement of international public trust law in 2022. International public trust law is emerging as the forefront of public trust law as United States federal courts have fettered its development by erecting procedural hurdles like standing and political question doctrines. …

Protecting State Constitutional Rights From Unconstitutional Conditions, Kay L. Levine, Jonathan R. Nash, Robert A. Schapiro

Faculty Articles

The unconstitutional conditions doctrine limits the ability of governments to force individuals to choose between retaining a right and enjoying a government benefit. The doctrine has primarily remained a creature of federal law, with neither courts nor commentators focusing on the potentially important role of state doctrines of unconstitutional conditions. This omission has become especially significant during the COVID-19 pandemic, as actions by state and local governments have presented unconstitutional conditions questions in a range of novel contexts. The overruling of Roe v. Wade and the resulting focus on state constitutional rights to abortion will offer additional new settings for …

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 …

The Sec’S Climate Disclosure Rule: Critiquing The Critics, George S. Georgiev

Faculty Articles

Climate change is an existential phenomenon, which entails a wide variety of physical risks as well as sizeable but underappreciated economic risks. In March 2022, the U.S. Securities and Exchange Commission (SEC) moved to address some of the information gaps related to the effects of climate change on firms by proposing a rule that requires public companies to report detailed and standardized information about important climate-related matters for the benefit of investors and markets. Though the rule proposal was welcomed by many market participants, it was also met with a level of opposition that was unusual in both its intensity …

A Solution For The Third-Party Doctrine In A Time Of Data Sharing, Contact Tracing, And Mass Surveillance, Tonja Jacobi, Dustin Stonecipher

Faculty Articles

Today, information is shared almost constantly. People share their DNA to track their ancestry or for individualized health information; they instruct Alexa to purchase products or provide directions; and, now more than ever, they use videoconferencing technology in their homes. According to the third-party doctrine, the government can access all such information without a warrant or without infringing on Fourth Amendment privacy protections. This exposure of vast amounts of highly personal data to government intrusion is permissible because the Supreme Court has interpreted the third-party doctrine as a per se rule. However, that interpretation rests on an improper understanding of …

Medicare "Bankruptcy", Matthew B. Lawrence

Faculty Articles

Medicare, the social insurance program for the elderly and disabled, is once again facing insolvency. Spending from the program’s hospital insurance trust fund is predicted to exceed the accumulated payroll taxes and other revenues that support the fund within the next five years, leaving Medicare unable to honor some of its obligations. Yet, what happens if and when Medicare becomes insolvent has not previously been explored in legal scholarship and is not addressed in statute or regulation. This Article confronts for the first time the major legal questions that Medicare insolvency would present. It explains what policymakers could do to …

Equality Offshore, Martin W. Sybblis

Faculty Articles

Global governance architecture, crafted by wealthy nations, has perpetuated the subordination of developing jurisdictions. The Article offers a novel and surprising analysis of governance tools used by wealthy countries and inter-governmental organizations to constrain offshore financial centers (OFCs) by focusing on the tools’ disparate impacts on tax havens whose populations comprise predominantly Black and Brown people. With tax haven issues garnering increasing attention, this Article provides a pathbreaking conceptual framework for examining the international tax, crime, and business discourse on OFCs. It also illuminates how the actions of powerful international actors, such as the Organization for Economic Cooperation and Development …

Anti-Discrimination Ethics Rules And The Legal Profession, Michael Ariens

Faculty Articles

“Reputation ought to be the perpetual subject of my Thoughts, and Aim of my Behaviour. How shall I gain a Reputation! How shall I Spread an Opinion of myself as a Lawyer of distinguished Genius, Learning, and Virtue.” So wrote twenty-four-year-old John Adams in his diary in 1759. He had been a licensed lawyer for just three years at that time and had already believed himself to be hounded by “Petty foggers” and “dirty Dablers in the Law”—unlicensed attorneys who, Adams claimed, fomented vexatious litigation for the fees they might earn.

Adams believed his embrace of virtue, along with genius …

The Appearance Of Appearances, Michael Ariens

Faculty Articles

The Framers argued judicial independence was necessary to the success of the American democratic experiment. Independence required judges possess and act with integrity. One aspect of judicial integrity was impartiality. Impartial judging was believed crucial to public confidence that the decisions issued by American courts followed the rule of law. Public confidence in judicial decision making promoted faith and belief in an independent judiciary. The greater the belief in the independent judiciary, the greater the chance of continued success of the republic.

During the nineteenth century, state constitutions, courts, and legislatures slowly expanded the instances in which a judge was …

One Step Backward: The Ninth Circuit's Unfortunate Rule 404(B) Decision In United States V. Lague, Dora Klein

Faculty Articles

The federal courts' current approach to character evidence is widely recognized as problematic. Although Rule 404(b)(1) categorically prohibits the use of character evidence, Rule 404(b)(2) presents a list of examples of permitted purposes that has tempted courts to view the admission of other-acts evidence as proper so long as the evidence is merely relevant to a non-character purpose. Additionally, courts have misconstrued the inclusive structure of Rule 404(b) as creating a presumption

in favor of admissibility. Recent efforts to correct this mistakenly permissive view include decisions by several of the federal circuit courts of appeals recognizing that Rule 404(b) requires …

"Only To Have A Say In The Way He Dies:" Bodily Autonomy And Methods Of Execution, Alexandra L. Klein

Faculty Articles

Capital punishment is one of the most significant intrusions into a person's bodily autonomy; the state takes a person's life. Even though the state has stripped a person on death row of much of their autonomy and intends to kill them, removing all autonomy, a person sentenced to death may, in some circumstances, choose how they will die. While most states rely on a single method of execution, some states permit a condemned person to choose among two or more methods of execution. Constitutional challenges to methods of execution requires the challenger to demonstrate a substantial risk of severe pain …

The Fall Of An American Lawyer, Michael Ariens

Faculty Articles

John Randall is the only former president of the American Bar Association to be disbarred. He wrote a will for a client, Lovell Myers, with whom Randall had been in business for over a quarter-century. The will left all of Myers’s property to Randall, and implicitly disinherited his only child, Marie Jensen. When Jensen learned of the existence of a will, she sued to set it aside. She later filed a complaint with the Iowa Committee on Professional Ethics and Conduct. That complaint was the catalyst leading to Randall’s disbarment.

Randall had acted grievously in serving as Lovell Myers’s attorney. …

When Police Volunteer To Kill, Alexandra L. Klein

Faculty Articles

The Supreme Court has upheld the constitutionality of lethal injection, yet states continue to struggle with drug shortages and botched executions. Some states have authorized alternative methods of execution, including the firing squad. Utah, which has consistently carried out firing squad executions throughout its history, relies on police officers from the jurisdiction where the crime took place to volunteer to carry out these executions. This represents a plausible-and probable method for other states in conducting firing squad executions.

Public and academic discussion of the firing squad has centered on questions of pain and suffering. It has not engaged with the …

The Cost Of Unstable Property: Oil, Gas, And Other Confusing Mineral Interests, Chad J. Pomeroy

Faculty Articles

Most people think of property as a thing: a chunk of land or a piece of personal property. Most lawyers, hopefully, have a more sophisticated view and think of property as a set of rights that exists with respect to a thing and governs how one interacts with that thing vis-a-vis other people. But even that nuance is not refined enough for an oil and gas lawyer. Such a practitioner does, of course, view ownership as a set of rights, but the thing at hand is not just a piece of real property or the part of the land that …