Notes

Certain provisions within environmental statutes, known as emergency action provisions, provide EPA administrators with the authority to take legal action when certain forms of pollution threaten public health. Of the six most prevalent environmental statutes with emergency action provisions, five have unique requirements for coordination with state and local authorities. These coordination requirements fit within a broader spectrum in environmental law of cooperative federalism, the concept of dividing responsibilities between central and regional authorities.

Drawing from case law, legislative history, canons of interpretation, and academic commentary, this Note highlights the inconsistent coordination requirements of the emergency action provisions—leading to confusion and delay for enforcement authorities—and shows there is scant normative justification for those differences. This Note also assesses what levels of coordination between federal and regional authorities are practically beneficial for agency attorneys and public health outcomes. Ultimately, this Note recommends standardization of the emergency action provisions, through legislative, judicial, and/or executive action, to capitalize on the benefits and mitigate the challenges of cooperative federalism.

Tens of thousands of people are involuntarily confined in a hospital each year in connection with their mental illness or disability. In response to misconduct by people who are civilly committed, hospitals often call the police, setting in motion a chain of events with devastating consequences for the person who is transferred to criminal custody. Despite the frequency with which it occurs, little research has explored this phenomenon. This Note aims to shed light on the practice and expose its tension with constitutional norms, using the Court’s decisions in City of Grants Pass v. Johnson and Robinson v. California as points of departure.

The First Amendment is a well-known bulwark against a government that might use its regulatory powers to silence speech based on the viewpoint of the speaker. The government speech doctrine extended those protections to the government itself, allowing the government to adopt its own viewpoint when it speaks on its own behalf. The result of the Court’s decision to extend First Amendment protections to the government is that the government can use the First Amendment as a shield when it uses viewpoint discriminatory regulation to coerce speakers into silence. The theorists and judges who created the government speech doctrine have argued that the democratic process and the other provisions of the Constitution would be strong enough to stop the government from abusing its speech powers. This Note, however, identifies a gaping hole in their doctrinal framework where low-visibility government speech meets the ambiguity of the coercion-persuasion line. At that critical point, neither the First Amendment, nor the other provisions of the Constitution, nor the democratic process can stop the leviathan’s inclination to silence dissent.

The multidistrict litigation (MDL) process allows the nationwide consolidation of cases that share certain factual issues. Mass tort claims are often consolidated as MDLs and eventually resolved through mass settlement due to individual issues of causation and defenses that prevent class certification. Before settlement, courts and parties often select a small subset of cases to be tried in ‘bellwether trials’ that are intended to provide information about remaining claims in the MDL, including the circumstances of individual plaintiffs and the theories of liability and causation. However, due to practical limitations on the total number of cases that can be tried and the lack of common issues that predominate, bellwether trials cannot be used as a comprehensive overview of the MDL without exposing parties to the risk of inadequate settlement, which is exacerbated when cases are selected by parties. This Note proposes that the role of bellwether trials in a mass tort MDL should be limited to estimation of the settlement amount, and that the cases should be a representative sample selected through statistical methods. Through a scheme that combines simulation with random and stratified sampling, bellwether trials can provide litigants with a high-quality estimate of the total settlement value, which can in turn be allocated among plaintiffs according to extraneous information obtained outside the courts.

In Türkiye Halk Bankasi A.S. v. United States, the Supreme Court reviewed the Second Circuit’s holding that the passage of the Foreign Sovereign Immunities Act (FSIA) abrogated any immunity from prosecution that foreign sovereigns may have previously enjoyed under the federal common law. The Court reversed, holding that the FSIA is inapplicable in the criminal context and, therefore, left the federal common law of sovereign immunity from prosecution undisturbed. The Court’s reasoning, however, did not explicitly draw upon or elucidate the doctrine of federal common law displacement. It is possible that the Court chose not to engage with this doctrine because its underlying case law has thus far failed to supply a clear, consistent, and administrable standard for federal common law displacement. Recent appellate decisions concerning the federal common law of foreign sovereign immunity illustrate the need for doctrinal reform.

This Note advocates the adoption of a different method for analyzing federal common law displacement disputes, drawing upon an analogy to the better defined and familiar doctrine of state law preemption. Specifically, I argue that statutes may either “expressly displace,” “conflict displace,” or “field displace” the federal common law, categories which I define by reference to express, conflict, and field preemption. I contend that this framework, although never formally endorsed in so many words by any federal court, is already immanent in the Supreme Court’s case law and the scholarly literature. Using Türkiye Halk Bankasi as a case study, I illustrate how the Court could have applied this framework to reach the same result while providing courts and litigants with a more structured approach for future federal common law displacement controversies.

Central banks like the European Central Bank (ECB) have started incorporating climate change considerations into their monetary policy tools. This Note refers to this phenomenon as green monetary policy (GMP). Given the crucial role of central banks and other monetary authorities in bank supervision and regulation, GMP has emerged as a solution to tackle the continued financing of fossil fuels and industries that have accelerated climate change. Among central banks, the ECB has emerged as a leader in GMP. However, the United States Federal Reserve Board (the Fed) has signaled a refusal to engage in any climate policymaking, including GMP. This paper argues that the Fed should follow the ECB by implementing GMP, given the central banks’ similar structure, general tools of monetary policy, and monetary policy-related goals. Although the Fed, unlike the ECB, does not have a secondary mandate to support general economic policies including environmental and climate-related goals, the Fed and the ECB are both mandated to promote price stability and act as a supervisor of financial risk. This Note analyzes the implications of the potential implementation of GMP by the Fed, comparing it to the ECB’s GMP, structure, and statutory mandates. It also explores key concerns and counterarguments in the literature against Fed implementation of GMP, which deal with independence, accountability, and mission creep. Despite these concerns, the Fed should continue to research climate change’s impact on macroeconomic stability and apply climate change considerations in its collateral policy, as the ECB has already done.

The Eighth Amendment to the U.S. Constitution bans “cruel and unusual” punishment. Historically, the Amendment’s protection has limited the use of the death penalty, life without parole sentences for juveniles, and other extreme punishments. The Supreme Court’s Eighth Amendment jurisprudence has been both controversial and unpredictable. Fortunately, every state constitution has an Eighth Amendment analog, and state supreme courts have independent authority to interpret those provisions as they see fit. State constitutions are therefore an alternative avenue for defining what constitutes unconstitutional punishment, and this area of law is a uniquely suitable context for state constitutional decisions to exert influence over the development of federal constitutional doctrine. While state supreme courts have typically followed the Supreme Court’s say-so on cruel and unusual punishments, recent state constitutional decisions may indicate a shifting tide toward more robust development of state constitutional law in this area. This Note argues that the Supreme Court should strongly consider such state constitutional decisions in assessing “evolving standards of decency” under the Eighth Amendment.

Over the past few decades, the Supreme Court of the United States has adopted an exceedingly narrow view of tribal civil jurisdiction, establishing doctrines that restrict the circumstances in which Native Nations can exercise their regulatory and adjudicative powers. While most scholarship in federal Indian law has assessed this judicial trend towards tribal disempowerment by focusing on the Court’s treatment of tribal sovereignty, this Note centers the Court’s manipulation of tribal territory. It argues that the Court has constructed three territorial incongruities—non-Indian fee lands, public access, and loss of “Indian” character—to justify the disallowance of tribal authority over significant portions of tribal reservations. In so doing, the Court relies on a spatial imaginary of territorial sovereignty, or the notion that sovereign power must be commensurate with sovereign domain, to present certain spaces as falling outside of a Native Nation’s territory and, accordingly, as beyond the reach of its jurisdictional power.

By illuminating the spatial imagination of the Supreme Court, this Note identifies a key practice employed by the Court that is central to empires past and present— cartography. The Court superimposes its own imagined legal geography upon the preexisting system of territorial division, redrawing the jurisdictional boundaries that separate states and Native Nations. This practice of spatial manipulation is cartographic in that it allows the Court to determine and limit the territory of tribal rule; to expand the areal authority of state jurisdiction; and to project its particular vision of reservation lands—a vision defined by notions of ownership, accessibility, and character—upon Indian country. These cartographic tactics of territorial acquisition and control are in direct furtherance of the American colonial project. They fragment tribal regulatory regimes, reify Indigenous life, and transfer congressional power to the Court to diminish tribal reservations. These practices of fragmentation, reification, and de facto diminishment are continuations of the repudiated but never-undone federal policy of allotment, although the main perpetrator is now the Court rather than Congress.

By turning to critical legal geography and theories of space and power, this Note reveals a Supreme Court that is highly imaginative, overtly spatial, and problematically cartographic in nature, engaged in a project of colonial expansion across its tribal civil jurisdiction cases.

In this Note I undertake a historical survey of the conceptual predecessors to the Fourteenth Amendment’s Privileges or Immunities Clause, from the sixteenth century through the mid-nineteenth century. By doing so I present a different angle on the potential significance of this provision, which merits revisitation as a clause bearing meaningful judicially cognizable rights, despite its effective foreclosure under the Slaughter-House Cases. Because of the open-ended and adaptive quality of this enigmatic phrase and its preceding variants, it bore a wide range of significances over the centuries. Indeed, as this Note also demonstrates, one can trace critical moments in early American history alongside varying uses of this phrase, further indicating its previously evolutionary quality. In its earliest forms, it implied the British Crown’s support for the development of colonies in the New World, and soon thereafter, it served as a vehicle for establishing individual rights akin to those of the Magna Carta. It also generated newfound rights that provided justification for the American Revolution and was used to advance unity among the states of the new nation, especially for the sake of economic development.

In the decades prior to the Civil War, its meaning was shaped by the pressing issue of slavery. Justice Bushrod Washington’s limiting construction of the Privileges and Immunities Clause in Corfield v. Coryell, I propose, was centrally informed by the debates leading to the Missouri Compromise, in which slaveholding as a protected right under privileges and immunities was a key point of contention. Because Corfield implicitly truncated the basis for asserting a right to slaveholding via privileges and immunities, the Court in Dred Scott, dominated by Southern justices, focused on excluding access to such rights based on immutable characteristics.

The Southern preference for broad rights and narrow access, however, was definitively defeated through war. It is thus uncertain whether a historically informed meaning of the Privileges or Immunities Clause necessarily turns on the disputes in the decades immediately leading to the Fourteenth Amendment’s ratification—which would suggest a fixed and narrow construction aligned with Corfield—or whether the deeper, evolutionary history of privileges and immunities lends a meaningful gloss on the clause, counseling a broader and more expansive interpretation. The Fourteenth Amendment’s legislative history is ambiguous at best, providing fodder for both possible readings.

While confronting these uncertainties, this Note draws from a historical method not previously deployed for the purpose of grasping the fuller meaning of this constitutional provision: It undertakes a longue durée approach, accounting for the variations of this phrase’s significance across time and as affected by a dynamic multiplicity of inputs. Most claims regarding the meaning of this clause tend to pinpoint one or several moments in its long history as the “true” origin point(s). A historical sense of privileges and immunities derived through this method, however, indicates that reaching a determination on the breadth of rights conveyed through this provision entails the resolution of a close call, requiring careful sifting of historical data, perhaps paired with other constitutional principles and policy considerations.

Zoning protest petitions allow landowners representing a percentage of the land
neighboring an area proposed to be rezoned to force the local government to have to
vote by supermajority to approve the rezoning. Only landowners are entitled to file
these petitions, and their “vote” toward the percentage of neighboring land necessary
to trigger the supermajority is allocated according to the proportion of neighboring
land they own. This Note examines the history, statutory construction, and current use
of protest petition laws, which are now on the books in twenty states. It illustrates that
they formed part of the justificatory architecture of racist and classist exclusionary
zoning and Not in My Backyard-ism (NIMBYism), contributing to legal doctrine and
informal political norms that treat an entitlement to block locally unwanted activities
as a “property right” akin to a right against nuisances. Although protest petitions have
historically been rarely used, the political and legal norms of exclusionary zoning
and local control are changing. While governments work to alleviate a nationwide
housing shortage, the political climate is also characterized by the routine use of
procedural hardball in all areas of policy. There are now warning signs that protest
petitions will be increasingly used by NIMBY neighbors to “filibuster” rezonings that
would allow for the construction of needed housing. To head off this increasingly
likely possibility, this Note probes some legal avenues in federal law that might be
explored by housing affordability advocates to invalidate, weaken, or induce the
repeal of protest petition laws in all states that still have them. It explores due process
and One Person, One Vote theories, as well as the idea of using the “affirmatively
furthering” mandate of the Fair Housing Act to induce protest petition laws’ repeal.