Administrative Law Commons^™

Squaring The Cercla: Superfund And The Superfund Task Force, Manny Marcos

Fordham Environmental Law Review

The Superfund Task Force recently released its final report on the implementation of its recommendations for improving the Superfund program. The Task Force was given five goals for improving the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA’s”), implementation. These goals are to expedite cleanup and remediation, re-invigorate responsible party cleanup and reuse, encourage foreign investment, promote redevelopment and community revitalization, and engage with partners and stakeholders. While the Task Force’s recommendations have improved CERCLA’s implementation, many of CERCLA’s structural flaws remain intact. Specifically, CERCLA still has a severe shortage of funding, an unfair liability scheme, perverse incentives, …

Health Care Fraud Means Never Having To Say You're Sorry, Jacob T. Elberg

Washington Law Review

For decades, the Department of Justice (DOJ) has issued a steady flood of press releases announcing False Claims Act (FCA) settlements against health care entities and extolling the purportedly sharp message sent to the industry through these settlements about the consequences of engaging in wrongdoing. The FCA is the primary mechanism for government enforcement against health care entities engaged in wrongdoing, and it is expected to be DOJ’s key tool for addressing fraud arising out of government programs in response to the COVID-19 pandemic. DOJ has pointed to three key goals of its enforcement efforts (deterrence, incentivizing cooperation, and building …

Covid-19: A Crisis And An Opportunity To Improve The Emergency Use Authorization Process, Daniel Walsh

Minnesota Journal of Law, Science & Technology

No abstract provided.

Territorial Exceptionalism And The Americanwelfare State, Andrew Hammond

Michigan Law Review

Federal law excludes millions of American citizens from crucial public benefits simply because they live in the United States territories. If the Social Security Administration determines a low-income individual has a disability, that person can move to another state and continue to receive benefits. But if that person moves to, say, Guam or the U.S. Virgin Islands, that person loses their right to federal aid. Similarly with SNAP (food stamps), federal spending rises with increased demand—whether because of a recession, a pandemic, or a climate disaster. But unlike the rest of the United States, Puerto Rico, the Northern Mariana Islands, …

The Doctor Will Judge You Now, Blair E. Thompson

University of Cincinnati Law Review

No abstract provided.

Delegating Immigration Admission Powers To The States, Christian Vanderhooft

University of Cincinnati Law Review

Control over immigration is generally seen as a purely federal power that cannot or should not be exercised by the states. Although some scholars have challenged this assumption, their focus is almost always on the ability of states to regulate (or remove) immigrants who are already within their borders. This Article calls for states to intervene in the immigration process at a much earlier stage. It proposes delegating to the states the power to admit new immigrants into the country by giving states control over the issuance of temporary and permanent visas. States would also be able to buy excess …

Rebalancing Bracker Forty Years Later, William Mcclure, Thomas E. Mcclure

American Indian Law Journal

This Article examines forty years of federal and state courts’ application of the Bracker balancing test, which considers whether a state tax is preempted when assessed against a non-Indian on tribal land. First, this Article chronicles the history and progression of the Bracker balancing test in the Supreme Court. Second, this Article cross-tabulates judicial findings of no preemption with key characteristics of all lower court state taxation decisions that cite Bracker. Third, this Article reports the results of regression analyses that reveal lower courts were less likely to find preemption of cigarette taxes, more likely to find state fuel …

The Blind Eye: Jus Soli, And The "Pretended" Treaty Of New Echota, Christopher Robert Rossi

American Indian Law Journal

No abstract provided.

Case Law On American Indians, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.

Inuit Nunangat Regional Overlaps: Reciprocal Harvesting & Wildlife Management Agreements, Christopher M. Macneill

American Indian Law Journal

This article after a brief introduction which describes the Inuit of Canada and their administrative segmentation by the territorial and provincial boundaries of the Yukon Territory, Northwest Territory, Nunavut Territory, Province of Quebec and the Province of Labrador. While arguably the Inuit are also considered to have traditionally used the northern regions of other provinces this study will focus on the present governance organizational framework assigned via Inuit Land Claims with Canada. The formation of Canada in 1867 and the subsequent partitioning of the Yukon and Nunavut from the Northwest Territory, and the addition of the Northern Quebec (Ungava Bay …

Native Nations' Land Ownership And Our Disservice To Their People And Culture A Proposed Legislative Solution And A Lesson To Be Learned, David E. Missirian

American Indian Law Journal

No abstract provided.

Qualified Opportunity Funds: Private Equity Exemptions From Public Responsibility, Audrey E. Abate

Brooklyn Journal of Corporate, Financial & Commercial Law

The historic Tax Cuts and Jobs Act (TCJA), passed and signed into law in 2017, included a pilot program of a new kind of tax advantage: the Qualified Opportunity Zone. The obscure provision has since spawned novel investment vehicles, called Qualified Opportunity Funds, through which qualified individuals and entities participate in what are often significant tax advantages, including deferral of capital gains for up to ten years. Because Qualified Opportunity Funds have come into existence so recently, regulation has been slow to catch up to the ways in which this tax program is rapidly attracting capital from private equity, investment …

Reducing Conflicts Of Interest: A "Glass-Steagall" Split Of Advisory And Consulting Services Of Proxy Advisory Firms, Austin Manna

Brooklyn Journal of Corporate, Financial & Commercial Law

This Note explores a solution to the potential problem with proxy advisory firms that involves an inherent conflict of interest arising from the structure of two services—advisory and consulting services—offered at certain proxy advisory firms in the United States. The solution proposed in this paper applies a Glass-Steagall framework to breakup these two services of the proxy advisory firms. In theory, this would eliminate the inherent conflicts of interest.

Looking For A Silver Lining: How The Covid-19 Pandemic Forced New York To Reckon With Its Affordable Housing Crisis, Daniel Finnegan

Brooklyn Journal of Corporate, Financial & Commercial Law

Since the Great Depression, the United States government has failed to find an adequate remedy to a nationwide housing shortage amongst low- and moderate-income individuals and families. The COVID-19 public health crisis has exacerbated this ongoing, nation-wide housing crisis, and has highlighted the racial inequities present in our housing market. Furthermore, it has pushed New York State’s residential housing market into a uniquely precarious position. Dramatic legislation is required at the state level to address the housing crisis caused by the massive growth in income-insecure and housing-insecure individuals that resulted from the pandemic, as well as the widespread departure of …

Let's Stop Playing Games: Why Better Congressional Interaction Is Required To Protect Young Gamers, Dominick Tarantino

Brooklyn Journal of Corporate, Financial & Commercial Law

This Note addresses the predatory nature of video game microtransactions, the serious risks they pose, and why an improved plan of legislative intervention is necessary to protect young, vulnerable video game consumers. With loot box microtransactions driving a flourishing industry that has reached unprecedented levels of success, adequate consumer protection cannot properly be achieved through self-regulation. Senator Josh Hawley’s Protecting Children from Abusive Games Act is a step in the right direction, but its broad language will result in unintended consequences that can cripple the entire industry. Revising the bill’s language will protect the intended young consumer and allow for …

Not So Fair Use: The Shortcomings Of Current Copyright Law In Music Sampling, Marissa Brown

Brooklyn Journal of Corporate, Financial & Commercial Law

The current enforcement method of the fair use doctrine is not suitable to handle the ever-evolving music industry. The fair use doctrine allows a copyright protected work to be used without getting it approved by the original owner of the work. This is seen often in music sampling. Music sampling is extremely prevalent in today’s music industry; however, federal court is currently the only arena that sampling disputes can be resolved in. This has led to inconsistencies across circuits, unfairness, and exacerbated the backlog of the federal court docket. While many have pointed out both the inefficiency and unfairness of …

Meic V. Deq, Kirsten D. Gerbatsch

Public Land & Resources Law Review

Hecla Mining Company and its subsidiaries want to develop two industrial silver and copper mines­­––the Montanore and Rock Creek projects––beneath northwest Montana’s Cabinet Mountains Wilderness. Environmental organizations, in just one of a series of legal challenges to protect high-quality designated resource waters and unique bull trout and grizzly bear habitat, brought an action seeking a declaration that Montana Department of Environmental Quality’s issuance of a permit for the Montanore Project was unlawful. The Montana Supreme Court, in a four-member majority, affirmed the district court’s vacatur and remanded the case to the state agency for further proceedings. The decision is celebrated …

Medical Volunteers During Pandemics, Disasters, And Other Emergencies: Management Best Practices, John I. Winn, Seth Chatfield, Kevin H. Govern

Seattle Journal of Technology, Environmental, & Innovation Law

How best to utilize volunteers^[1] during medical emergencies is an essential part of hospital compliance planning. Onboarding recruited and spontaneous volunteers during crisis situations require careful consideration of multiple legal issues. Volunteer planning becomes more complex if volunteers move across state lines because applicable tort immunity statutes,^[2] compensation limits,^[3]and workers compensation regimes vary significantly from one jurisdiction to another. Effective planning for volunteers requires these and other issues to be addressed well in advance of actual emergencies. Although predicting the scope or severity of any future crisis is impossible, the provided checklist of management best practices …

Free Willy: A Breach To Rejuvenate The Southern Resident Killer Whale, Luke Mcdonough

Seattle Journal of Technology, Environmental, & Innovation Law

State and federal government entities have made great strides in environmental protection since the inception of the Environmental Protection Agency and the enactment of major environmental regulations. However, species worldwide continue to face threats of extinction due to human activity and climate change without prompt, major intervention. In Washington state, the iconic Southern Resident Killer Whale has seen a dramatic decrease in population since the 1960s. Protections directed for their benefit have not provided the expected return as the main challenges Southern Residents face remain largely unresolved. To restore the Southern Residents’ population for future generations, their entire ecosystem must …

Mother Nature Needs Her Sox: Reviewing The Impetus And Goals Of The Increased Financial Regulations Of The Sarbanes-Oxley Act And How They Parallel The Needs Of Today's Environmental Protection Agency, Scott Meyer

William & Mary Environmental Law and Policy Review

As climate change and natural disasters appear to be increasingly prevalent across the United States, the question of how to respond to these threats looms large. Arguably, the Environmental Protection Agency (“EPA”) represents the tip of that responding spear. The agency, literally dedicated to protecting the environment, is positioned to drive industry environmental standards, set sustainable metrics, and even determine thresholds for habitable life.

Looks can be deceiving, though. This Note examines the current state of the EPA, and the minimal effect it currently has on penalizing and deterring industry environmental degradation. It specifically focuses on a number of high-profile …

Ground Zero: The Irs Attack On Syndicated Conservation Easements, Beckett G. Cantley, Geoffrey C. Dietrich

William & Mary Environmental Law and Policy Review

On June 25, 2020, the Internal Revenue Service (“IRS”) announced a settlement initiative (“SI”) to certain taxpayers with pending docketed cases involving syndicated conservation easement (“SCE”) transactions. The SI is the current culmination of a long series of attacks by the IRS against SCE transactions. The IRS has recently found success in the Tax Court against SCEs, but the agency’s overall legal position may be overstated. It is possible that the recent SI is merely an attempt to capitalize on leverage while the IRS has it. Regardless, the current state of the law surrounding SCEs is murky at best. Whether …

Environmental Justice Class Action Rises Above The Rubbish: The Third Circuit Revives Common-Law Nuisance Remedies In Baptiste V. Bethlehem Landfill Co., Kyra G. Bradley

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Don't You Know That You're Toxic? Cercla Section 113(H) Challenges, Sovereign Immunity, And Perfluoroalkyl Substances In Pennsylvania Drinking Water In Giovanni V. Navy, Stephanie J. Oppenheim

Villanova Environmental Law Journal (1991 - )

No abstract provided.

The Saddest Show On Earth: The Endangered Species Act As Applied To Captive, Endangered Mammals In People For The Ethical Treatment Of Animals Inc. V. Miami Seaquarium, Anne Ringelestein

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Considering Environmental Impact Under Uncommon Personal Circumstances Carey V. Commonwealth And The Storage Tank Act, Catherine M. Hillin

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Out Of Sight, Out Of Mind: Analyzing Inhumane Practices In Mississippi’S Correctional Institutions Due To Overcrowding, Understaffing, And Diminished Funding, Ariel A. Williams

Honors Theses

The purpose of this research is to examine the political, social, and economic factors which have led to inhumane conditions in Mississippi’s correctional facilities. Several methods were employed, including a comparison of the historical and current methods of funding, staffing, and rehabilitating prisoners based on literature reviews. State-sponsored reports from various departments and the legislature were analyzed to provide insight into budgetary restrictions and political will to allocate funds. Statistical surveys and data were reviewed to determine how overcrowding and understaffing negatively affect administrative capacity and prisoners’ mental and physical well-being. Ultimately, it may be concluded that Mississippi has high …

Putting The Constitutional Horse Before The Cart: Federal Jurisdiction Over Next Generation Environmental Assessment, Anna Johnston

LLM Theses

This thesis explores the extent of federal jurisdiction over a next generation environmental assessment (EA) model proposed by Sinclair, Doelle and Gibson. Examining the jurisprudence and literature, it analyses the scope of federal constitutional authority during the triggering, information-gathering and analysis and decision-making stages of project, strategic and regional assessment. A federal next generation EA law focused on impacts on areas of federal authority could be upheld under various federal constitutional heads of power. Federal jurisdiction is most important at decision-making, and authority to trigger an assessment should be based on the low jurisdictional threshold of reasonable probability of federal …

Updating The Federal Agency Enforcement Playbook, Aiste Zalepuga

Notre Dame Law Review

This Note explores the relationship between equitable remedies and agency enforcement powers, arguing that federal courts are increasingly distinguishing between law and equity in remedies to impose limits on agency enforcement powers. Part I tracks factors driving the FTC’s broad reading of section 13(b) until AMG Capital. Part II analyzes developments in the SEC with a focus on Liu and suggest that federal courts are returning to traditional categories of equitable remedies. Part III concludes with two trends in determining the scope of agency enforcement powers. First, federal courts are requiring agencies to show that their use of equitable …

The Pandemic, Climate Change And Farm Subsidies, Allen H. Olson, Edward J. Peterson

Journal of Food Law & Policy

Many people believe that once the COVID-19 pandemic has passed, life will return to the way it was. This belief is both unrealistic and dangerous. It is unrealistic because the virus will be around for years if not indefinitely. The timeframe for the worst of the pandemic will depend on our ability to administer effective vaccines worldwide and the public’s willingness to accept continued social distancing in the meantime. The damage done to public health, the economy and individuals is already substantial and will get worse. Recovery will be slow and incomplete. The belief that life will return to the …

Addressing Food Insecurity In The United States During And After The Covid-19 Pandemic: The Role Of The Federal Nutrition Safety Net, Sheila Fleischhacker, Sara N. Bleich

Journal of Food Law & Policy

Food insecurity has been a direct and almost immediate consequence of the coronavirus disease 2019 (COVID-19) pandemic and its associated ramifications on unemployment, poverty and food supply disruptions. As a social determinant of health, food insecurity is associated with poor health outcomes including diet related chronic diseases, which are associated with worst COVID-19 outcomes (e.g., COVID-19 patients of all ages with obesity face higher risk of complications, death). In the United States (US), the federal nutrition safety net is predominantly made up of the suite of 15 federal nutrition assistance programs that the US Department of Agriculture (USDA) administers and …