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W(h)ither Regulation? Hither to the Tax System
No full textIn a series of cases decided in the last three years, four delivered in 2024 alone, the U.S. Supreme Court has directed a withering gaze toward the federal administrative state. In West Virginia v. EPA, the Court both curtailed Executive Branch regulatory authority and mandated that Congress draft with greater statutory clarity and specificity under their recently developed major questions doctrine. Under Ohio v. EPA, the Court placed on administrative agencies the burden of extraordinary vigilance in addressing comments as part of the regulatory promulgation process. In Loper Bright v. Raimondo, the Court overturned Natural Resource Defense Council v. Chevron, a forty-year precedent, holding that instead of giving deference to executive branch expertise, the courts must follow the guidance set forth in the Administrative Procedure Act. In Board of Governors of the Federal Reserve System v. Corner Post, the Court effectively eliminated any time-bar for claims that an executive branch agency has exceeded its authority, and, possibly, other claims. In Securities and Exchange Commission v. Jarkesy, the Court held that, to impose fines or damages in a civil enforcement action, an agency must try the claims before a jury in an Article III court. As the U.S. Supreme Court has directed a withering gaze to regulatory authority, rulemaking and enforcement, the question arises “Whither, regulation?” This article argues that many of the cases themselves, grounded in a history of tax exceptionalism, yield an answer: “Hither to the tax system.” The article makes three contributions. First, it briefly outlines the recent U.S. Supreme Court cases culling administrative authority, describes their likely effects on the regulatory state, and identifies the tax exceptions that may permit certain types of regulatory action to pass scrutiny. Second, the article outlines the current constitutional framing for the taxing power and then discusses the kinds of administrative concerns for which tax may easily serve as a regulatory instrument, based on the economics of regulatory taxation. Finally, taking the carbon tax as a case study, it explains the process for cultivating regulatory taxes and subsidies in view of current legislative and judicial branch hazards
Representing Climate Wreckers
No full textIn recent years, lawyers have become increasingly aware of the implications of the climate crisis for legal practice. Amidst this context, United Nations Secretary General Ant6nio Guterres has urged recent graduates to decline work on behalf of climate wreckers. This Article examines how professional responsibility rules and principles in the United States should be interpreted on a warming planet, particularly in the context of attorneys representing so-called climate wreckers in civil matters. I use the term climate wrecker to refer to fossil fuel corporations and trade associations that have engaged in public disinformation campaigns to stall climate action and sow doubt regarding climate science.
The Article explains how dominant approaches to attorney ethics are frustrating private governance efforts to persuade attorneys to fulfill their duty to the rule of law by securing a transition away from fossil fuels. Law firms that invoke fossil fuel corporations\u27 right to counsel as a justification for their choice of clients distort foundational legal principles to remain unaccountable. Ultimately, I argue that climate change requires a transformation in the practice of law, namely that lawyers choosing to represent climate wreckers should be held accountable for their decision to do so. The notion that everyone deserves representation, and thus lawyers are fulfilling their public citizen duties when representing climate wreckers, distorts professional ethics to justify a decision that ultimately enables further planetary disruption. It is time for lawyers to reckon with the transformation climate change demands and start declining representation that is at odds with a stable climate
A Supreme Sidestep: The Justices\u27 Artful Dodge on Platform Immunity
No full textThe foiled ISIS plot to attack Taylor Swift concerts, coordinated by teens on social media platforms with a significant US presence, illustrates the dangerous consequences of unchecked online content. This incident, coupled with other tragic cases such as the sexual exploitation of a minor lured through Facebook and Tyler Clementi \u27s suicide following a privacy violation on Twitter highlights the urgent need to reassess 47 U.S.C. § 230 of the Communications Decency Act. Enacted in 1996, this law provides broad immunity to interactive computer services, including social media platforms, shielding them from liability for user generated content. While initially celebrated as a catalyst for online innovation and free speech, § 230 now faces criticism for enabling the spread of misinformation, hate speech, and illegal content while hindering victims\u27 ability to seek redress. Despite numerous legal challenges, the Supreme Court consistently avoids substantive rulings on § 230\u27s interpretation, instead deciding cases on procedural grounds. This article explores the Court\u27s failure to provide substantive guidance and argues that the harms of § 230\u27s safe harbor provision now outweigh the justification for judicial deference, particularly in an era of congressional gridlock. Without meaningful intervention, the negative impacts of § 230 will likely persist, posing ongoing risks to individuals and society. As these risks escalate, the Supreme Court\u27s continued sidestep of the substantive issues surrounding § 230 becomes increasingly problematic, leaving a critical gap in digital-age jurisprudence that urgently needs to be addressed
From Altamont to Astroworld: An Analysis of Management Issues in Large Scale Music Festivals
No full textThe most common problems in music festivals can largely be broken into two categories: risks to the individual and risks on a grand scale. It is the responsibility of event managers to consider how to best keep everyone safe and maintain proper organization. Risks to the individual are often things like substance use and abuse, harm reduction, and sexual assault or harassment. Meanwhile, broad risks tend to be issues of evacuation and emergency management, crowd safety, stampedes, and casualties or violence. It is crucial to reflect on prior common safety and security issues when setting out to produce a large music festival and factor them into all organization and design conversations in order to hopefully avoid repeating past mistakes and damages.
This research aims to analyze four music festivals from the 1960s to today that have become known for poor safety and management practices. These festivals are Altamont Speedway, Woodstock 99, TomorrowWorld, and Astroworld. The goal is to apply a critical lens to these events and utilize documentary films and video footage, archive articles, police files, and scholarly findings to determine what went wrong and allow staff teams to extrapolate from these conclusions informing future event management practices
The Role of Private Liability in the Fight Against Climate Change
Full text linkParties have increasingly turned to courts both to seek redress for current climate-related harms and to compel states and private actors to reduce their future GHG emissions. As a result, courts around the world have been faced with the task of defining the proper role of the judiciary in fighting climate change. In the United States, however, many courts have had difficulty defining the judiciary’s proper role in providing redress for climate-related harms, especially in relation to comprehensive federal regulation of air pollution under the Clean Air Act (CAA). Considering the uncertainty surrounding the preemptive effect of the CAA on climate change actions under state law, this article investigates the proper role of private tort law in relation to public regulation in the search for climate justice and GHG mitigation. It argues not only that state tort law claims survive under the CAA but also suggests that providing a cooperative system of private law alongside public regulation is the most effective way for the judicial system to address the harms caused by climate change
State Responsibility for Disrupting Earth’s Climate System: Anticipating the ICJ Advisory Opinion
Full text linkIn 2025, the International Court of Justice (ICJ) will deliver an advisory opinion on the legal obligations of nations with respect to the mounting damage caused by climate change. This ruling will definitively restate applicable international law, provide a basis for new global policy decisions within the U.N. General Assembly, and provide a predicate for new lawsuits in national courts. To be effective, remedies for breaching a government\u27s duties to avert climate change will require a “collective remedy,” not merely financial compensation. This ruling was sought by law students from the South Pacific and elsewhere; this Article, also by young legal scholars, evaluates the scope and estimates the content of the forthcoming ICJ opinion
National Origin Bias and U.S. Public Opinion on Supreme Court Nominees: Evidence from a Conjoint Experiment
Full text linkAs the ultimate arbiter of the interpretation of federal law and the U.S. Constitution, the U.S. Supreme Court has a significant impact on businesses and individuals across an increasingly diverse country. Although the vast majority of the Justices who have served on the Court have been white males, recent Presidents have appointed nominees who have brought greater racial and gender diversity to the Court. Despite these efforts, however, not a single U.S. Supreme Court Justice in the past six decades has been born abroad, even though Americans who were born outside the United States constitute nearly a tenth of the U.S. population. One potential explanation for this lack of demographic representation on the Court is public opposition to the nominations of U.S. Supreme Court candidates born outside the United States. Although the prior scholarship has focused on how the race, gender, and partisan leanings of potential U.S. Supreme Court nominees affect U.S. public support for those nominees, the existing literature has not yet examined the extent to which the American public supports U.S. Supreme Court nominees who were born abroad. In this article, we fill a gap in the literature by analyzing whether Americans have consistent national origin-based preferences for U.S. Supreme Court nominees. Through the use of a conjoint experiment in a nationally-representative survey of the U.S. public, we find that the American public prefers that U.S. Supreme Court nominees be born in the United States rather than outside the United States. Additionally, this preference is largely similar across subgroups of the public, including based on respondents’ party affiliation, level of knowledge of the U.S. Supreme Court, and gender. Our empirical findings detecting public bias based on national origin shed important light on why certain potential candidates might not be chosen to become the nominee to fill a U.S. Supreme Court vacancy or might simply self-select out of contention. Consequently, our study raises significant questions about the fairness of the judicial selection process and the representativeness of the U.S. Supreme Court in a rapidly diversifying country
The Times They Are A-Changin\u27: Adapting Copyright Law to Generative AI
Full text linkArtificial intelligence has come a long way since the days of the “heartless” tin man of the Wizard of Oz, and the cool, precise autonomy of Kit from Nightrider. We have moved rapidly from mere questions about what life could be like with autonomous machines, to having books, movies, and albums created using machines for part or even all of the process. The Copyright Act, however, has not come as long of a way since the implementation of the most recent version of the Act in 1976. Recently, the federal district court for the District of Columbia held that works created using artificial intelligence required a certain amount of human input for the AI generated output to be copyrightable. The United States Copyright Office, however, has put forward a stance that leaves artists confused and unclear of how much human input is actually required. This note will review the history of copyright protection under U.S. law, and how generative AI fits into that model, before offering solutions of how the Copyright Act could be amended to account for such instances of collaboration between man and machine
