Agency Commons^™

A Path Forward: Litigating The Treaty-Based Claims Of Children Sexually Abused In The Indian Health Service System, Peter B. Janci, Stephen F. Crew, Zachary Pangares

Seattle University Law Review

In 1855, representatives for the United States traveled to the Great Plains with orders to seek peace with Blackfoot Nation so the westward expansion of “civilized” white settlers could continue without interruption. After weeks of negotiations, the United States plan materialized. The terms of these promises were memorialized on October 17, 1855, in a treaty between the United States government and Blackfoot Nation.

One hundred and sixty-seven years later, representatives for the United States and the Blackfoot Nation convened in Rapid City, South Dakota to discuss the U.S. government’s breach of the treaty’s terms. Eight Native men, including three from …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Why Corporate Boards Should Include Lgbtq+ People, Jeremy Mcclane, Darren Rosenblum

Seattle University Law Review

Corporate boardrooms sit at the heart of most of society’s most consequential decisions but fall far short of the diversity of our society. The current movement toward board diversification aims to remedy the underrepresentation of marginalized groups on corporate boards. More recently, some efforts have included LGBTQ+ people, even though the basis for their inclusion on corporate boards remains largely unstated. This Article examines both the normative and instrumental bases for LGBTQ+ inclusion in board diversity initiatives, articulating unspoken assumptions and linking LGBTQ+ people to the broader inclusion effort. In so doing, it begins to surface the unique issues LGBTQ+ …

Wrongful Improvers As A Guiding Principle For Application Of The Ftc’S Ip Deletion Requirement, Emma Elder

Washington Law Review

The 2021 Federal Trade Commission (FTC) investigation into cloud storage app developer Everalbum resulted in a consent decree that required Everalbum to delete not only unlawfully collected data, but also algorithms created using that data. The FTC had imposed this kind of penalty only once before. Questions remain about how the FTC will apply this so-called intellectual property (IP) deletion requirement in the future. This Comment argues that situations where companies develop intellectual property from misappropriated consumer data are analogous to cases where courts seek to apply the property law rule of the wrongful improver, i.e., where one party knowingly …

When Uncle Sam Spills: A State Regulator’S Guide To Enforcement Actions Against The Federal Government Under The Clean Water Act, Ian M. Staeheli

Washington Law Review

The U.S. government is one of the largest polluters on the planet. With over 700 domestic military bases and countless more federal facilities and vessels operating within state borders, there exists an enormous potential for spills and discharges of pollutants into state waters. The regulatory burden for enforcing environmental laws against the federal government falls on the Environmental Protection Agency and state regulators. But enforcing laws and regulations against the federal government and its progeny is a daunting regulatory task.

Other scholarship addresses some of the vexing peculiarities involved when regulating Uncle Sam. Those works discuss the “confusing mess” that …

The Helicopter State: Misuse Of Parens Patriae Unconstitutionally Precludes Individual And Class Claims, Gabrielle J. Hanna

Washington Law Review

The doctrine of parens patriae allows state attorneys general to represent state citizens in aggregate litigation suits that are, in many ways, similar to class actions and mass-tort actions. Its origins, however, reflect a more modest scope. Parens patriae began as a doctrine allowing the British king to protect those without the ability to protect themselves, including wards and mentally disabled individuals. The rapid expansion of parens patriae standing in the United States may be partly to blame for the relative absence of limiting requirements or even well-developed case law governing parens patriae suits. On the one hand, class actions …

Ice Transfers And The Detention Archipelago, Sabrina Balgamwalla

Journal of Law and Policy

This article examines transfers as an understudied but critical dimension of the immigration detention system. Transfers regularly take detainees in immigration custody from public to private facilities, across state lines, and beyond the jurisdiction of individual courts. Immigration and Customs Enforcement (“ICE”) has virtually unlimited authority to use transfers strategically to further agency goals of immigration enforcement. For individual detainees, transfers shape outcomes in their immigration cases. Noncitizens are regularly funneled into detention centers in legal jurisdictions generally hostile to claims for relief. Transfers also regularly send detainees to facilities in isolated, rural communities, where they are more likely to …

West Virginia V. Epa, Amanda Spear, Amanda Spear

Public Land & Resources Law Review

The EPA created the Clean Power Plan in an effort to reduce the amount of greenhouse gas emissions generated by coal-fired power plants. The EPA determined that the Best System of Emission Reduction for existing coal-fired power plants included generation shifting methods, meaning a shift from coal to cleaner sources. The Supreme Court held, under the major questions doctrine, that Congress had not intended for the EPA to use generation shifting methods for the Best System of Emission Reduction and that the EPA had exceeded its authority in doing so. This note will explore how the decision may impact administrative …

Friends Of The Earth V. Haaland Case Summary, Valan Anthos

Public Land & Resources Law Review

A federal district court vacated the U.S.’s largest offshore oil and gas lease sale ever because of an inadequate NEPA analysis. The court found that the BOEM’s decision to exclude estimations of reductions in foreign oil consumption if no lease took place was arbitrary and capricious.

Administrative Apparition: Resurrecting The Modern Administrative State’S Legitimacy Crisis With Agency Law Analysis, Tabitha Kempf

Catholic University Law Review

There is an enduring discord among academic and political pundits over the state of modern American government, with much focus on the ever-expanding host of federal agencies and their increasing regulatory, investigative, enforcement, and adjudicatory authority. The growing conglomerate of federal agencies, often unfavorably regarded as the “administrative state,” has invited decades of debate over the validity and proper scope of this current mode of government. Advocates for and against the administrative state are numerous, with most making traditional constitutional arguments to justify or delegitimize the current establishment. Others make philosophical, moral, or practical arguments in support or opposition. Though …

Slowing Down Accelerated Approval: Examining The Role Of Industry Influence, Patient Advocacy Organizations, And Political Pressure On Fda Drug Approval, Stephanie Diu

Fordham Law Review

The U.S. Food and Drug Administration (FDA) has been revered as the gold standard in pharmaceutical safety and efficacy review since the 1960s. More recently, partly in response to the HIV/AIDS epidemic and the pressing need for new treatments, the FDA established an accelerated approval process to hasten the review of new drug applications so that drugs could be approved and brought to market as soon as possible. Although accelerated approval has led to the availability of new treatments for patients with few other options, this Note argues that, today, the FDA grants accelerated approval too hastily and may be …

Requiring The Executive To Turn Square Corners: The Supreme Court Increases Agency Accountability In Department Of Homeland Security V. Regents Of The University Of California, Claudia J. Bernstein

Dickinson Law Review (2017-Present)

Administrative agencies frequently promulgate rules that have dramatic effects on peoples’ lives. Deferred Action for Childhood Arrivals (“DACA”) is one such example. DACA grants certain unlawful immigrants a temporary reprieve from deportation, as well as ancillary benefits such as work permits. In 2017, the Department of Homeland Security (“DHS”) sought to rescind DACA on the basis that the program violates the Immigration and Nationality Act.

This Comment analyzes the recent Supreme Court decision about DACA’s recission in Department of Homeland Security v. Regents of University of California. In rejecting DHS’s attempt to rescind DACA, the Court strengthened agency accountability …

An Attempt To Bring Modern Workplace Realities To The Social Security Disability Adjudication System, Robert E. Rains

Dickinson Law Review (2017-Present)

No abstract provided.

Book Review: This Is How They Tell Me The World Ends: The Cyberweapons Arms Race (2020) By Nicole Perlroth, Amy C. Gaudion

Dickinson Law Review (2017-Present)

No abstract provided.

How Can Federal Actors Compete On Noncompetes? Examining The Need For And Possibility Of Federal Action On Noncompetition Agreements, Robert Mcavoy

Dickinson Law Review (2017-Present)

Employees have been frustrated by the restrictiveness of noncompete agreements and confused about their enforceability for decades. The added complication of choice-of-law provisions in employment contracts with noncompetes creates a sea of unpredictability for both employees and employers.

Each state applies its own policy to noncompete agreements. While every state treats noncompetes differently than typical contract provisions, a broad spectrum exists between the states that are friendly and those that are hostile to the enforcement of noncompetes. Employees and employers often fail to understand whether their noncompete is enforceable under the jurisdiction chosen by the contract, and courts override choice-of-law …

The Undemocratic Roots Of Agency Rulemaking, Emily S. Bremer

Journal Articles

Americans often credit—or blame—Congress for the laws and policies that govern their lives. But Congress enacts broad statutes that give federal administrative agencies the primary responsibility for making and enforcing the regulations that control American society. These administrative agencies lack the political accountability of those in public office. To address this democratic deficit, an agency seeking to adopt a new regulation must publish a notice of proposed rulemaking and provide an opportunity for the public to comment on the proposal. Heralded as “one of the greatest inventions of modern government,” the Administrative Procedure Act’s (APA) notice-and-comment rulemaking procedure is understood …

Osha’S Comprehensive Failure To Protect Workers During The Covid-19 Pandemic, Nancy M. Modesitt

Dickinson Law Review (2017-Present)

Under the Trump Administration, the Occupational Safety and Health Administration (“OSHA”), failed to protect workers from COVID-19, which has led to deadly workplace outbreaks of the virus. OSHA’s failures began when it refused to produce legally-binding rules, known as emergency temporary standards, that would mandate the most basic step of requiring masks in the workplace to protect workers from the risks of infection on the job. In addition, while OSHA did produce non-binding guidance for employers, that guidance was unclear and fundamentally deficient in failing to require masks in all workplaces and failing to require recordkeeping that would identify potential …

When Fast-Tracking Slows You Down: Reconsidering Nationwide Permit 12 Use For Large-Scale Oil Pipelines, Megan Rulli

Dickinson Law Review (2017-Present)

The consumption of oil pervades everyday life in America. The network of pipelines transporting oil from field to consumer is largely invisible. Until a major news event bursts pipelines onto headlines, this indispensable and invisible system fuels the country without fanfare. At the same time, concern over global climate change has made new large-scale projects for fossil fuel extraction and consumption highly controversial. The Keystone XL (“KXL”) pipeline was originally designed to transport crude oil extracted from oil sands in Canada to the Gulf of Mexico for international export. After more than a decade of false starts, the project currently …

Removing Roadblocks: Alternatives To Lawful Status And Social Security Number Requirements For Pennsylvania Driver’S Licenses, Miranda Sasinovic

Dickinson Law Review (2017-Present)

As part of their traditional state police powers, states determine the eligibility requirements for their driver’s licenses. Standard eligibility requirements include proof of age, residency, identity, and knowledge. In the 1990s, some states amended their vehicle codes to require proof of lawful status, effectively barring undocumented immigrants from obtaining driver’s licenses.

In response to inconsistent issuance and verification standards, Congress passed the REAL ID Act of 2005. The Act prohibits federal agencies from accepting state driver’s licenses for official purposes unless states comply with minimum issuance and verification standards. These standards include requirements to verify Social Security numbers and lawful …

Public Utilities Commission, Madison Orcutt, Rachel Rockwell, Tristan Stidham, R. C. Fellmeth, Bridget Fogarty Gramme

California Regulatory Law Reporter

No abstract provided.

Key

California Regulatory Law Reporter

No abstract provided.

Masthead

California Regulatory Law Reporter

No abstract provided.

Climate Change, Competition & Conflict Along The River Nile: The Great Ethiopian Renaissance Dam & Shifting Customary International Water Law, Salma Shitia

Fordham Environmental Law Review

Decade-long negotiations between the Arab Republic of Egypt and the Federal Democratic Republic of Ethiopia surround the decision to build the hydroelectric power plant along the River Nile. For much of Ethiopia, the Grand Ethiopian Renaissance Dam represents a beacon of prosperity. For countless Egyptians, the structure embodies a potential catastrophe. Grounded in threats of displacement for Egyptian agricultural communities, some have compared the Grand Ethiopian Renaissance Dam crisis to disasters culminating in mass migration.

This battle for natural resource access has intensified as climate change exacerbates the region’s dire conditions. Specifically, exhaustible resource allocation amid climate change indicates that …

A Paper Tiger? Prosecutorial Regulators In China’S Civil Environmental Public Interest Litigations, Chunyan Ding, Huina Xiao

Fordham Environmental Law Review

In July 2015, China’s national legislature brought in prosecutor-led civil environmental public interest litigation (“EPIL”) for thirteen selected provincial areas of the country. After a two-year legal experiment, this prosecutor-led civil EPIL system was then established nationwide in July 2017. Yet, can it be said that prosecutorial regulators in China are in fact a paper tiger? Drawing upon content analysis of the 655 prosecutor-led civil EPILs and in-depth interviews with twelve frontline prosecutors and judges, this article examines the dynamics of regulatory practice and the motivation of the Chinese prosecutorial organs to engage in environmental regulation through litigation. Based upon …

The Yoga Analogy: Scaling-Up The U.S.’S Renewable Energy Sector Mindfully With New Technologies, Evolving Standards, Public Buy-In, Data Sharing, And Innovation Clusters, Kimberly E. Diamond

Fordham Environmental Law Review

This paper focuses on innovative renewable energy devices, exploring how scientifically-based industry standards that continuously evolve with engineering design technology, the public’s buy-in and feeling of connectedness with groundbreaking devices, and innovation clusters that accelerate device development through data sharing and public-private partnerships can all help advance the U.S.’s domestic renewable energy industry.

Part I analyzes challenges inherent to scaling- up novel renewable energy technologies while simultaneously developing the industry standards regulating them. Part II uses the Block Island Wind Farm, an offshore wind demonstration project, and Pavegen’s globally-deployed arrays of piezoelectric smart flooring tiles as examples illustrating the importance …

Environmental Racism: Using Environmental Planning To Lift People Out Of Poverty, And Re-Shape The Effects Of Climate Change & Pollution In Communities Of Color,, William C.C. Kemp-Neal

Fordham Environmental Law Review

In the mid-1900s the United States began to see a rise in concern for environmental awareness issues. In the early days the movement focused on things like clean air, water and pollution but by the 1970s-1990s many prominent environmental awareness groups began to form focused on the idea that in order to avert climate change the principal goal needed to be to reduce global greenhouse gas emissions. In 1987 a report was released called Toxic Waste and Race, which outlined an intimate link between the placement of environmental hazardous waste sites in communities of color, and greater instances of polluted …

Beyond Equity: Shared Natural Resources And Human Rights, Criminal Law, And The Use Of Force, Eian Katz

Fordham Environmental Law Review

Transboundary resource disputes are often analyzed by reference to two nebulous and conflicting principles that have emerged in international environmental law: “equitable and reasonable utilization” and “no significant harm.” Frequently overlooked in this context is the potential value of other canons of international law—especially human rights law, criminal law, and the rules governing the use of force—in adding definition to the muddled contours of these foundational precepts. This Article therefore undertakes an assessment of sovereign rights and obligations regarding shared natural resources which arise from these other bodies of law. In doing so, it offers new lenses through which to …

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, …

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 …

Covid-19 Impacts: How A Global Pandemic Amid The Sunsets Of The Ptc And Itc Made The U.S. Wind And Solar Industries More Resilient, Kimberly E. Diamond

Fordham Environmental Law Review

A cataclysmic event is sometimes the necessary catalyst for companies within certain industries to re- examine, radically shift, and replace their standard practices with technologically-advanced alternatives. In the United States, the occurrence of the Coronavirus pandemic (“COVID-19”) during the sunsets of the Production Tax Credit (“PTC”) and the Investment Tax Credit (“ITC”) created a unique confluence of factors that produced a perfect storm tantamount to such a cataclysmic event for companies in the wind and solar industries, particularly developers. Over the years, the domestic utility-scale wind industry has come to rely heavily upon the PTC, while the domestic utility- scale …