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Planning A New Paradigm: Tribal Co-Stewardship and Federal Public Lands Planning
Get PDFPlanning is a critical part of the federal government’s management of the nation’s public lands. Over the last half century, Congress has mandated that each of the four major public land management agencies; the U.S. Forest Service, the Bureau of Land Management, the U.S. Fish and Wildlife Service, and the National Park Service, develop and rely on plans to guide their oversight of public lands and resources. Virtually every activity or decision affecting these public lands can be traced back to language in—or missing from—a plan. But, despite the importance of planning, the process by which each agency develops and implements plans presents complex challenges for both the agencies and those interested in participating in or influencing both planning and resultant management decisions. These challenges can frustrate, if not derail, the incorporation of meaningful changes in planning documents that, given the often decades-long lifespan of a plan, could have long-term impact. The federal Departments of Interior and Agriculture—home to the four major land management agencies—are enhancing their engagement with Native Nations in the co-stewardship of public lands and resources. Given its importance to the management of public lands and resources, planning is key to these efforts, especially because most plans now, in effect, do little to consider the interests of Native Nations. Thus, although federal and tribal co-stewardship covers a range of activities, the relationship between co-stewardship and planning offers one of the most powerful avenues for reshaping the future of federal-tribal relations in the management of public lands and resources. This Article provides the first comprehensive effort to align federal public land planning with tribal co-stewardship through an analysis of the statutory, regulatory, and procedural planning requirements relevant to each of the four major federal public land management agencies. The Article also analyzes various plans and planning efforts to offer a roadmap for how Native Nations and their federal partners can use planning to spark and sustain a new era of tribal co-stewardship of federal lands and resources
The Obvious Violation Exception to Qualified Immunity: An Empirical Study
Get PDFQualified immunity shields government officials from civil suits for discretionary actions, as long as the violated right is not clearly established. A right is deemed established when every reasonable official would understand it based on precedent, placing it beyond debate, such that only the plainly incompetent may be held liable. Consequently, even when an act infringes on one’s civil rights, a court may deny relief owing to a lack of factually comparable precedent. However, in 2020, the Supreme Court indicated its distrust for overreliance on precedent in certain contexts. In Taylor v. Riojas, the Court held that prison officials violated an incarcerated individual’s clearly established rights, regardless of case law, where the allegations presented “extreme circumstances” and “egregious facts.” Thus, Taylor articulated an exception to the usual requirement for overcoming qualified immunity—showing a factually comparable precedent—in cases that raise extreme circumstances and egregious facts.
This Article offers the first empirical study encompassing all published lower court opinions referencing Taylor within the three years following its release. This inquiry includes a quantitative analysis of the cases applying Taylor to grant or deny immunity, as well as a qualitative examination of the factual situations where the exception is most likely to succeed. Accordingly, this study suggests that the obvious violation exception is viable, albeit underused. Inferior courts are applying it in situations beyond the Eighth Amendment, and it is subject to a workable test. Therefore, Courts and litigants should employ it more frequently. Finally, the exception is consistent with Taylor and furthers the purpose of the Ku Klux Klan Act of 1871, 42 U.S.C. § 1983, by preventing blatant civil rights abusers from evading consequences
In the Name of Tradition: A Comparative Study on Nonestablishment
Get PDFThe Establishment Clause of the First Amendment to the United States Constitution prohibits the government from establishing a state religion. The U.S. Supreme Court has developed different tests to determine whether a government action complies with this principle. Over the past few decades, the Court gradually turned to whether the challenged practice is consistent with the history and tradition of the nation.
Meanwhile, the separation of church and state is not a notion unique to the United States. After centuries of Confucian monarchy, Korea drafted a modern constitution with a similar provision. Nevertheless, the Constitutional Court of Korea has upheld several laws of pre-modern origin on the ground that the Confucian values they embody have become part of Korean tradition. Such language is strikingly similar to the national-tradition standard devised by the United States Supreme Court.
The Establishment Clause is an oft-discussed topic, but this Comment aims to offer novel insights from a comparative constitutional law perspective. The case of Korea uniquely illuminates the infirmities inherent to the national-tradition standard. This Comment concludes that courts should not use history or tradition to determine whether a government practice violates the constitutional mandate of the separation of church and state
Disability Discrimination by Clinical Algorithm
Get PDFIn response to America’s escalating drug poisoning crisis, the federal government has funded, incentivized, and mandated that states adopt and implement prescription drug monitoring programs (“PDMPs”) to electronically surveil controlled substances and other “drugs of concern.” State PDMPs utilize proprietary, predictive software platforms that deploy algorithms to determine whether a patient is at risk for drug misuse, drug diversion, doctor shopping, or substance use disorder. PDMPs have never been validated by a federal agency or peer review, yet states have mandated their use throughout the health care delivery system.
Research demonstrates that clinical overreliance on the risk scores generated by PDMP algorithms motivates clinicians to refuse to treat—or to inappropriately treat—marginalized and stigmatized patient populations, including individuals with actual or perceived substance use disorder, chronic pain conditions, or other disabilities. The misuse of information generated by PDMP algorithms by healthcare providers is anticipated to impact over one billion patient encounters each year. This Article provides a framework for challenging such PDMP algorithmic discrimination as disability discrimination. It contends that Section 504 of the Rehabilitation Act, the Americans with Disabilities Act, and Section 1557 of the Affordable Care Act can be engaged to protect vulnerable patients from PDMP-related algorithmic discrimination. It then provides recommendations to develop and strengthen the 2024 Section 1557 final rule concerned with clinical-decision algorithmic discrimination, harmonize new and existing antidiscrimination protections, and improve implementation and enforcement efforts in this context
Predicting (and Protecting) the Future of Environmental Law After Loper Bright
Get PDFNostradamus, the sixteenth-century French philosopher and seer, is said to have predicted many things: the French Revolution, the rise of Napoleon, the Great Fire of London, the rise of Adolf Hitler, the 9/11 attacks on the World Trade Center. Of course, there are skeptics. The predictions, after all, tended to be “cryptic and vague.”
Still, if alive today, I wonder what quatrain Nostradamus might write—and what elusive meaning his fans might try to decode—about the future of environmental law in the United States. Would he predict that environmental law will be ravaged by the binary politics of the moment, reduced to a pawn in a fight about government overreach? Would he predict it will be saved by a renewed interest by Congress to give federal agencies specific authority to match the scope of modern environmental challenges—like climate change, the inequitable burden of environmental disease, or forever chemicals? In the absence of Congressional inspiration, will courts read old statutes to give agencies the freedom to solve new problems? If not, will states fill the gaps?
Predicting the future is notoriously tricky business, inviting both thrill-seekers and naysayers to witness what is sure to culminate in either a public display of genius or spectacular incompetence. Nevertheless, we persist. In February 2024, a group of scholars convened in Columbus, Ohio, to participate in a symposium hosted by the Ohio State Law Journal to contemplate the future of environmental law. It is from that symposium, and with gratitude to the editors for choosing to focus on environmental law’s future, that this writing originates
