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Federal Land Conservation in Rural Areas
Get PDFRural land has an important role to play in environmental protection. This Article examines how the federal government works to further the goals of land conservation in rural areas—ranging from farmland to forests and wetlands; from working landscapes to national parks; and from private to public landownership. We note three approaches. The federal government mandates conservation through laws like the Endangered Species Act and the Clean Water Act. The federal government incentivizes conservation through Farm Bill programs and tax incentives. Finally, the federal government facilitates conservation through noncoercive funding, review, and technical assistance programs under the Farm Bill, the National Environmental Policy Act, and the Land and Water Conservation Fund. This examination of federal land conservation programs gives insight into the different tools and strategies available to protect rural lands and examines the potential benefits of a stronger federal role. The greatest obstacle to successful environmental protection in rural areas is a lack of active environmental management and the conversion of land to other uses, chiefly residential and energy development. Current land conservation programs do not appear to be addressing these issues directly, and action on some level is necessary to achieve more optimal environmental outcomes in the rural countryside
Punishing Drug Use During Pregnancy: Is It Time to “Just Say No” to Fetal Rights?
Get PDFIn family courts throughout the country, civil neglect and abuse petitions are routinely brought against individuals based on their drug use during pregnancy. While some may be quick to justify such state interventions in the name of child protection based on the presumption that drug use always harms fetuses in utero and the child once it is born, this note questions the propriety of such justifications. While drug use during pregnancy may result in detrimental health outcomes, the theoretical underpinning of this premise has been dramatically distorted due to racist and classist assumptions that permeate child protective schemes. Medical research suggests that harm to the child resulting from in utero exposure to substances has been vastly overstated due in large part to the pervasive rhetoric of the war on drugs, “crack babies,” and the vilification of Black motherhood. Furthermore, punishing individuals for drug use during pregnancy in the name of fetal protection highlights the law’s recent tendency to afford legal protections to fetuses, often at the expense of their mothers’ privacy and reproductive liberty interests. Thus, the justifications for state intervention (i.e., preventing harm to the child) must be carefully scrutinized. Otherwise, family courts, despite their purported rehabilitative and non-punitive purpose, are simply carrying out state-sanctioned family separation, the trauma of which cannot be overstated. About half the states consider drug use during pregnancy as child abuse or neglect per se under their child-welfare statutes. The remaining states either have no specific requirement or require a showing of harm to the child caused by the parent’s drug use before a finding of neglect or abuse can be made. This note focuses on New York State’s approach, which requires a showing of harm to the child caused by drug use during pregnancy. While preferable to state approaches which permit such a finding without any showing of harm, New York caselaw suggests ample room for improvement. First, New York must promulgate clear standards for establishing harm to the child. New York also cannot ignore the harm of the most drastic and invasive of its interventions—removal of the infant—in its analysis. New York must establish clear guidelines for drug testing and subsequent reporting of pregnant women. Finally, to truly work in the best interests of children and families and to best align with its “rehabilitative” purpose, New York family courts must reject a punitive approach and should prioritize interventions supporting maternal health and recovery
The Historical Diagnosis Criterion Should Not Apply: Reasonable Accommodations in Standardized Testing for Individuals with a Later Diagnosis of ADHD
Get PDFThere is a growing number of adults being diagnosed with ADHD who were not diagnosed in childhood, misdiagnosed, or primarily exhibited symptoms in adulthood. Notably, most of the later diagnoses of ADHD in adults are individuals pursuing some level of higher education. Some of the reasons posited for this increase in ADHD diagnoses in higher education may be attributed to increased workloads, decreased structural and community supports, misdiagnosis in childhood, masking, and racial and socioeconomic factors that overlook subpopulations like children of color, female-presenting, and gender-nonbinary children with ADHD. Unfortunately, testing agencies that administer college entrance exams, graduate school entrance exams, and professional licensing exams do not make any exceptions to their strict accommodations policies for individuals who receive a later diagnosis of ADHD. Instead, testing agencies continue to require an extensive history of supportive information, including a history of diagnosis criterion (referring to a childhood diagnosis) for individuals with ADHD to prove requests for an accommodation. This Note argues that the history of diagnosis criterion puts individuals with a later diagnosis of ADHD at a disadvantage because they cannot demonstrate that history when they have only recently been diagnosed. This Note calls on the U.S. Department of Justice to issue guidance to testing agencies regarding the subset of individuals with disabilities who have received a later diagnosis of ADHD, specifically advising testing agencies to make an exception to the history of diagnosis requirement for individuals who receive a later diagnosis of ADHD
“The EU Challenge to the SEC”: A View from 2021
Get PDFThis essay offers a retrospective appreciation of Professor Roberta Karmel’s scholarship exploring the influence of securities regulation in the United States on developments in European capital markets regulation in the late 1990’s and early 2000’s. Professor Karmel’s writings document a fascinating evolution in this trans-Atlantic relationship as the Securities and Exchange Commission transitioned from the world’s dominant capital market regulator throughout most of the post-World War II era into a more collaborative posture by the end of the first decade of the Millennium. The essay concludes by suggesting that the trends that Professor Karmel chronicled in her scholarship have persisted in recent years with U.S. regulatory authorities increasing finding themselves responding to regulatory initiatives in Europe rather than the other way around
Avoiding Wasteful Competition: Why Trading on Inside Information Should Be Illegal
Get PDFThis article offers a new and compelling reason to make all trading based on inside information illegal. The value realized by trading on inside information is unusual in two respects. First, inside information is produced at little or no incremental cost and is nevertheless quite valuable. Second, profits made from trading on inside information come largely at the expense of others. When the value of something exceeds the cost to produce it, a wasteful race to be the first to capture the resulting surplus is likely to ensue. Similarly, resources expended solely to take something of value from others are wasted from an overall social welfare perspective. Thus, both at its source and in its use inside information invites wasteful competition. A law prohibiting insider trading is the best way to avoid this wasteful competition. Previous scholarship misses this obvious conclusion because of its reliance on one of three assumptions. First, wasteful competition is assumed to be a problem that markets can rectify. Second, private ordering solutions are assumed to be available even when market mechanisms fail to address this problem. Third, a wasteful race to acquire and use inside information is viewed as otherwise unavoidable. None of these assumptions is correct. The findings here have immediate policy implications. First, insider trading legislation should be enacted that bans all insider trading and not just trading based on wrongfully acquired information. Second, there is no reason to require proof that a tipper received a personal benefit to prosecute someone for tipping inside information. Third, the possession and not the use of inside information should be enough to trigger a trading prohibition
Free Speech Still Matters
Get PDFIn its first ten years, the Roberts Court proved to be the most speech protective Court in a generation, if not in our history; however, in the intervening five years, the Court has faced intense pressures, ranging from heightened criticism of its First Amendment jurisprudence to seismic changes in the makeup of the Court to very real proposals for court “packing.” Despite these powerful forces, the Roberts Court has surprisingly stayed true to its commitment to—and guardianship of—the First Amendment. Nevertheless, in the face of modern political correctness and cancel culture, free speech has rarely been in a more precarious position. In looking back at these last five years of the Roberts Court’s First Amendment jurisprudence and in assessing the modern threats to free speech, this article argues that what we need to establish, or perhaps re-establish, is a “culture of free speech,” where discussion and debate is encouraged, and diversity of thought valued