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Textualism and the Modern Explanatory Statute
Get PDFThe explanatory statute is a largely forgotten legislative tool. Once common, the explanatory statute was a retrospective act that identified an ambiguity or erroneous interpretation of a prior law and then directed the legislature’s view of the correct interpretation.
Although now rare, the explanatory statute is not dead. Just a few years ago, Congress enacted an amendment to Section 230 of the Communications Decency Act—a now hotly contested topic—with the hallmarks of an explanatory statute. In the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (“FOSTA”), Congress concluded that courts had over-extended Section 230 immunity to preclude claims by sex trafficking victims and clarified that the immunity should not be construed to impair those claims. So far, however, courts and commentators have taken a narrow view of FOSTA and assumed that it preserves only those claims specifically enumerated in the statute.
This view proceeds from an underappreciation for explanatory statutes and their proper application. Indeed, given their rarity, little has been written about how to approach statutes of this sort under the now-prevailing textualist methodology. This Article aims to fill that gap by proposing a generally applicable textualist approach to analyzing modern explanatory statutes. When applied to FOSTA, that approach yields a perhaps surprising result: A sound, textualist reading of FOSTA may invite federal courts to recalibrate the scope of Section 230 immunity, even outside the context of sex trafficking claims
Missouri’s Chance at Low-Cost Renewable Energy ‘Gone with the Wind’?
Get PDFThe Grain Belt Express, a proposed wind energy transmission line that will span across much of the Midwest,[1] has been stalled for the past five years due to the legal battles it has faced in Missouri[2] over whether the company can be properly granted the authority to exercise eminent domain power over landowners in the state who oppose the project.[3] This Note provides a comprehensive analysis of the issues surrounding the Grain Belt Express in Missouri in order to argue that the project is in the state’s public interest—as correctly decided by Missouri’s Public Service Commission in granting Grain Belt eminent domain authority[4]—and to advocate against legislation specifically aimed at blocking the project in Missouri.[5] This Note proceeds by first providing an overview of the project and the issue, next presenting the arguments on both sides of the issue, then providing the legal and regulatory background, followed by a summary of Grain Belt’s legal journey in Missouri to date, and finally concluding with arguments against the Missouri legislation targeted at the Grain Belt Express.
[1]. Route Overview, Grain Belt Express, https://grainbeltexpress.com/overview.html (last visited Sept. 19, 2021).
[2]. See Paul Henry, Missouri’s Grain Belt Express HVDC Transmission Line Project (Easements and Eminent Domain), Owners’ Counsel Am. (Sept. 17, 2020), https://www.owners counsel.com/missouris-grain-belt-express-hvdc-transmission-line-project-easements-and-eminent-domain/.
[3]. Adrienne Spiller, The Show-Me State’s Fight Against Grain Belt Express Clean Line: Will Administrative Proceedings, Legislation, or the Takings Clause Provide Protection for Private Land?, J. Env’t & Sustainability L. 311, 312–13 (2016).
[4]. See In re Application of Grain Belt Express Clean Line LLC for a Certificate of Convenience and Necessity, File No. EA-2016-0358, 2019 WL 1354055, at *29, *31, *47 (Mo. P.S.C. Mar. 20, 2019) (Report and Order).
[5]. See Protect Wind Energy, Protect Missouri Jobs, Oppose House Bill 527, Sierra Club, https://www.sierraclub.org/sites/www.sierraclub.org/files/sce-authors/u2061/HB%20527%20-%20Support%20Grainbelt%20Express.pdf (last visited Feb. 7, 2021); H.B. 527, 101st Gen. Assemb., 1st Reg. Sess. (Mo. 2021); H.B. 1027, 98th Gen. Assemb., 1st Reg. Sess. (Mo. 2015); H.B. 1062, 100th Gen. Assemb., 1st Reg. Sess. (Mo. 2019); H.B. 2033, 100th Gen. Assemb., 2d Reg. Sess. (Mo. 2020); Kurt Erickson, After misfire last year, Missouri lawmakers again trying to stop Grain Belt Express, St. Louis Post-Dispatch (Jan. 13, 2020), https://www.stltoday.com/ news/local/govt-and-politics/after-misfire-last-year-missouri-lawmakers-again-trying-to-stop-grain-belt-express/article_06ecb601-6ca7-5cc6-ba11-28516fb5abb4.html
Change is Nothing New Teaching Public Policy
Get PDFThis Article addresses the paradox that change is nothing new for those who teach aspiring lawyers how to effectively engage in the reality of the complex public policy arena. It rejects the notion that money buys results, and success is merely a matter of quick-fix influence peddling and personal relationships. Instead, to teach students how to provide public policy analysis, advice, and advocacy, teachers must help them understand and be prepared for a relentlessly dynamic, continuously evolving professional ecosystem where the very object of the work is to either advance or forestall legal change, often involving issues contested on multiple fronts and levels of government, over the long term where outcomes are constantly challenged and rarely, if ever, permanent. The players, institutions, venues, techniques, procedural rules, and compliance requirements are in a perpetual state of flux, usually operating under the light of public scrutiny and often in headlines. Pursuing the question of what the law or rule should be is challenging work at the intersection of law, government administration and regulation, politics, business, science, technology, and the public interest. For lawyers who have an appetite for change and who can tolerate a degree of fluidity, uncertainty, and the need to adapt to new circumstances, public policy is an exciting, honorable, and meaningful way to put the investment of time, effort, and money in one’s legal education to good use in a worthwhile career of making a difference. The need to rethink and adapt how to teach public policy to law students after Trump or any administration change is not in itself new. However, the fundamental nature and degree of the recent tectonic shifts in the landscape of rules and norms governing the public policy process are unprecedented, and profoundly so.
This Article identifies the need for teachers to bridge the gap between conventional wisdom and contemporary academic literature about the nature of the public policy process in the United States. It refers to an impressive amount of academic work available for course reading lists, which can be instructive and worked into a policy course syllabus. The role that lawyers and the public can and should play to sustain democracy, justice, and equality also can be studied by examining contemporary controversies concerning structural issues about our constitutional form of government. Teaching what is needed for good and better government can help students learn a great deal about public policy while involving them in thinking about theoretically and practically how to go about resolving very difficult policy issues. The Article highlights five possible topics and case studies about the future of democracy arising from the harrowing 2020 political slugfest. Four involve structural issues in the field of election law. The fifth is the latest iteration of a perpetual concern about inequity in the access to communications technology that is essential for participating in governance and access to economic opportunity. Each of these five examples are among the many possible topics a teacher might choose from to provide fertile, new ground for critical intellectual analysis and creative approaches teaching public policy. The Article also reviews various techniques for teaching policy, this author’s view of the most significant external changes on the horizon for the policy process, and what law schools can and should do to teach students and to educate the public about how our government is supposed to work. The Article concludes that public policy is an integral part of teaching and studying subjects across the law school curriculum. It is also a substantial part of what lawyers do in private practice, government, public service, and public interest work. That is because the public policy process touches everything that matters to us as individuals and members of a diverse community living under the same constitutional rulebook. So, teaching public policy is a worthwhile calling whether as part of another doctrinal subject, experiential educational training, or as the central theme in its own course
A New Kind of MMA Fight: Balancing Statutory Damages for Works in Compilations After the Music Modernization Act and the Rise of Streaming Services
Get PDFDue to the ambiguous language of Section 504(c) of the Copyright Act of 1976, judges and legal scholars have been confounded for decades about how statutory damages should be distributed when the copyright of multiple items in a compilation has been infringed. Several circuits hold that separate statutory damages awards can be given for each item in a compilation that has been infringed if the items each have an economic value. In contrast, the Second Circuit holds that only one statutory damages award can be given for an infringed compilation unless the items contained within have been issued separately.
This Note argues that the current market has made this circuit split even more prominent, as music artists are increasingly releasing songs from albums as singles on streaming services, and the Music Modernization Act of 2018 allows songwriters to recover statutory damages for individual musical works from streaming services under some circumstances. These developments should influence the Second Circuit to reconsider the continued viability of allowing only one statutory damages award for the infringement of musical and non-musical compilations. Doing so would resolve a long-standing circuit split and result in a more reasonable interpretation of Section 504(c)
Critical Race Theory & the Gospels
Get PDFCommodities can speak. They pray constantly for release. The slave is the commodity that speaks. This Essay is the slave’s prayer for release, for resurrection. The slave is imprisoned, entombed, in the commodity form, a form in which it appears as a thing that is exchangeable for other things, not an end-in-itself.
Yesterday is not gone. Emancipation has yet to take place. The conceits of the modern era are all around us written in ruin and in specters of future ruin. Critical Race Theory is a flower in the midst of ruin. Critical Race Theory is said to be radical? Critical Race Theory is radical. Critical Race Theory, the stone that the builders refused, is as radical as the Gospels, as avante garde as philosophy, as American as the abolition of slavery, and as necessary as tomorrow
Preservation Letters and Fourth Amendment Seizures: A Response to Professor Kerr
Get PDFThe Stored Communications Act (18 U.S.C. § 2701 et seq.) requires an Internet Service Provider to preserve the contents of a user account upon receiving a request from a government agency. The maximum period of preservation is 180 days. However, the government agency cannot get access to the copy, unless it presents proper legal process, usually a search warrant. During this time, the user has complete access to their account. In a recent article, Professor Orin Kerr has advanced a thesis that copying pursuant to the government’s preservation requests under the Stored Communications Act is a Fourth Amendment seizure. This Article disputes Professor Kerr’s argument. It does so on his terms, that digital copying is a meaningful interference with a possessory interest in property, but also advances a new theory of seizure in the digital world. This theory is premised on the idea that unlike physical seizures, which interfere with a possessor’s access to the tangible objects seized, digital copying does not. The real concern with digital copying is the privacy of the data. Although privacy is usually the concern of the law of searches, this Article advances the idea that when we analyze the concept of seizure with respect to the copying of digital evidence, it is the owner’s privacy interest in the data, and not their access to it, that we need to address. Viewed from a privacy perspective, preservation requests are not seizures
“Woman Enough” To Win? An Analysis of Sex Testing in College Athletics
Get PDFIn recent years, dozens of bills restricting the rights of transgender, or trans, individuals have been introduced in state legislatures throughout the country. To date, ten states have successfully passed laws prohibiting trans athletes from competing on teams in accordance with their gender identities. For its athletes, the National Collegiate Athletic Association (NCAA), the United States’ largest intercollegiate athletic organization, has pursued a compromise to balance trans inclusion and fair competition. Established in 2011, the NCAA’s conditionally inclusive policy permits trans women—meaning those who were assigned the sex of male but identify as women—to compete on a women’s team only after undergoing one year of testosterone suppression. This constitutes a form of sex testing, a method long used by sports organizations worldwide to sort athletes into binary men’s and women’s teams. This Article critiques the NCAA’s policy under Title IX, a cornerstone of federal law that prohibits discrimination in educational settings “on the basis of sex.” Although the Supreme Court has yet to define the contours of this protection as it relates to trans student athletes, its recent trans-friendly ruling in the Title VII case Bostock v. Clayton County, Georgia may be indicative of a decision on the issue. Further, even without Bostock’s logic, the Court may find that in light of modern science, the NCAA’s selective testosterone regulation stands as an improper and overbroad application of Title IX’s competitive skill exception. Looking forward, this Article provides solutions that the NCAA may employ in a revised policy to satisfy Title IX and to champion trans inclusion
Where There Is a Right, There Is a Remedy—Or Is There?
Get PDFCourts have repeatedly declined to allow causes of actions under the Constitution when Plaintiffs’ constitutional rights are violated by government officials. In this article, Grace Panicola discusses a pocket of governmental immunity that creates serious implications for Plaintiffs as they ultimately face inadequate remedies.https://scholarship.law.slu.edu/lawjournalonline/1103/thumbnail.jp