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Fair and Balanced: Why We Need a Federal Anti-SLAPP Law for Good-Faith Journalism
No full textStrategic lawsuits against public participation (SLAPPs) pose a serious threat to free expression, often targeting journalists and media outlets to intimidate or silence critical reporting. Many states have adopted anti-SLAPP statutes that provide procedural protections for speech to deter meritless, speech-chilling suits. But not all states have such laws, resulting in a patchwork of uneven speech protections across the United States. Even where such laws exist, SLAPP plaintiffs can often evade them by forum-shopping or removing to federal court, where state anti-SLAPP provisions do not always apply. In the absence of a federal anti-SLAPP law, journalists across the country remain vulnerable to costly litigation that can chill democratically vital speech. A uniform federal solution is needed—yet if crafted too broadly, a federal anti-SLAPP law could inadvertently shield even intentionally false or malicious speech, undermining legitimate defamation remedies and public accountability.
This Note argues that Congress should enact a federal anti-SLAPP statute anchored in a “good-faith journalism” standard to strike the proper balance. Good-faith journalism means speech that a reasonable person would believe is a direct presentation of facts or a description of events produced through deliberate action to report in accordance with established journalistic professional and ethical standards. By conditioning anti-SLAPP protections on good-faith journalism, this tailored approach navigates First Amendment constraints on speech regulations and ensures that such a federal anti-SLAPP law neither over-protects low-value falsehoods nor under-protects valuable, factual reporting. A federal anti-SLAPP law built on good-faith journalism would fortify freedom of expression by safeguarding the press’s essential role in democracy, while preserving accountability by denying special protection to those who flout journalistic integrity through intentional or reckless falsehoods
Where There’s Fire, There’s Smoke: Regulation of Fine Particulate Air Pollution in the Fairbanks North Star Borough
No full textIn 2006, the U.S. Environmental Protection Agency strengthened the National Ambient Air Quality Standards (NAAQS) for 24-hour fine particulate air pollution (PM2.5). A large portion of the Fairbanks North Star Borough, encompassing the cities of Fairbanks and North Pole, was designated a Clean Air Act nonattainment area under the revised PM2.5 standards. Wood smoke from home heating was found to be one of the primary culprits, particularly during strong inversions that trap air pollution at ground level. This Article reviews the complex legal history of federal, state, and local efforts to bring the Fairbanks area into compliance with the NAAQS. With the EPA’s recent approval of Alaska’s State Implementation Plan, Fairbanks and regulators alike may soon be breathing easier
“Parked Under the Influence” Is Not a Crime: Why the Alaska Supreme Court’s Broad Interpretation of “Operating a Vehicle” Is Wrong
No full textIn Jacobson v. State, the Alaska Supreme Court interpreted the word “operate” in Alaska’s driving under the influence statute to include sitting in a running, parked car. Jacobson was part of a national trend. In the last few decades, courts in about half of states have interpreted “operate” to mean “being in control of” or “exercising dominion over” a vehicle—for example, sitting in an unmoving vehicle. This judge-made law is controversial as it expands the definition of “operate” without legislative approval. As one dissenting justice put it in a case similar to Jacobson, “[t]he effect of the majority opinion is to create a new crime: Parked While Intoxicated.” This Article argues that the Alaska Supreme Court effectively created a new crime of being parked while intoxicated in Jacobson, despite a lack of legislative intent to do so. Further, the Court’s reasoning is flawed because 1) the statute’s plain meaning does not include being parked while intoxicated; 2) the Court analogized from out-of-state cases that were inapposite to the facts in Jacobson; and 3) the statute’s legislative history supports a narrower interpretation that criminalizes only driving under the influence. This Article will demonstrate that the statute simply codified the ordinary meaning of “operate” when the statute was passed, which was “to drive.” It concludes with a discussion of how the Alaska Court of Appeals has already begun to undermine the Jacobson ruling in the past decade
Anchoring Deference: The Chevron Doctrine, Loper Bright, and Alaska Administrative Law
No full textAfter statehood, the Alaska Supreme Court operated on a blank legal slate. No Alaska precedent, for example, addressed the fundamental question of when courts should defer to an agency’s statutory interpretation. In addressing this issue, the Alaska Supreme Court largely adopted the framework developed by federal courts in the 1950s and 1960s, prior to the emergence of the Chevron doctrine. The federal case law from this era relied on nebulous standards to guide when an agency’s interpretations were subject to the deferential reasonable basis review. Not surprisingly, by adopting that federal jurisprudence, Alaska precedent suffers from the same shortcomings. And while the Chevron doctrine was designed to provide a more predictable analytical framework—based on the “fiction” that whenever a statute is ambiguous, courts are to presume that Congress implicitly delegated interpretative authority to the agency—the doctrine ultimately proved to be unworkable. The Supreme Court finally put an end to the Chevron doctrine in Loper Bright Enterprises v. Raimondo, which announced a test that shares common features with the Alaska Supreme Court’s. Namely, courts are responsible for determining the best reading of a statute but are to give weight to an agency’s interpretation when certain factors are present. Although this framework does not eliminate uncertainty regarding when an agency’s statutory interpretation is subject to the more lenient reasonable basis review, Alaskan courts can refine the jurisprudence in this area by examining how federal courts implement Loper Bright. Thus, Loper Bright has given the Alaska Supreme Court an opportunity to recalibrate its existing case law to achieve a more coherent and predictable jurisprudence
Alaska’s Hidden Gems: Advocating for the Protection of Deep-Sea Corals, Both in the Courtroom and Beyond
No full textCoral reefs are ecologically, financially, and aesthetically one of the world’s greatest resources. Off the coast of Alaska, many unique species of deep-sea cold-water corals exist and provide various public health benefits, contribute vital ecosystem functions to their surrounding environment, and serve as economic tourist attractions. Alaska’s coral reefs are exceedingly valuable to the Earth due to their overall ecological value. However, these unique coral species significantly lack state and federal protections, which have recently been under consideration in several lawsuits at the federal level. American Oceans Campaign v. Daley and Oceana, Inc. v. National Marine Fisheries Service et al., are the main federal cases that examine the harmful fishing practices destroying coral reefs in Alaska. Still, questions remain regarding these cases, their respective outcomes and impacts post-litigation. How can stakeholders in the Alaskan fishing industry adapt their routine practices to prevent destruction to deep-sea cold-water coral reefs? Should lawmakers even be involved in this issue, considering the unique expertise involved in understanding complex fishing methods in colder waters? This Note will attempt to answer these questions through (1) a brief history of American law regarding state and federal precedential coral reef protections; (2) a description of the ongoing destruction to valuable coral reef species both in the U.S. and worldwide; (3) an in-depth examination of the federal case, American Oceans Campaign v. Daley; (4) public health considerations pertinent to the destruction of Alaskan cold-water corals; (5) legal implications of destructive fishing practice considered in Oceana, Inc. v. National Marine Fisheries Service et al.; (6) current actions of state and federal agencies to combat ongoing oceanic environmental destruction; and conclude with (7) proposed solutions to ensure the future survival of deep-sea cold-water corals in Alaska. As the legal issues continue to pile up, adequate action must be taken by both state and federal agencies to ensure the protection of one of Alaska’s most valuable resources
The Persistent and Muddy Dispute : How the Facial/As-Applied Distinction Creates Problems for Constitutional Litigants
No full textThe distinction between facial and as-applied challenges continues to play a central role in constitutional litigation, including at the Supreme Court. Yet, the distinction and its related rules have long suffered from a lack of doctrinal clarity and consistency. This Note sets out a descriptive taxonomy of three problems facing constitutional litigants because of the murkiness surrounding the facial/as-applied distinction.
First, the “Doctrinal-Test Problem” refers to the fact that many constitutional doctrines appear to require the courts to engage in facial adjudication, even if a litigant wishes to bring an as-applied claim. Thus, as-applied litigants are forced into facial challenges, even where a facial challenge has no hope of success. Second, the “Factual-Scope Problem” refers to uncertainty regarding the breadth of factual pleading needed to succeed in a facial or as-applied challenge. For instance, facial claimants may be required to make arguments about the total factual scope of a challenged statute, despite the conceptual difficulty of anticipating the statute’s full reach. Conversely, courts might hold plaintiffs to a facial standard merely because they have broadly introduced facts, even if plaintiffs intend to raise only as-applied claims. Finally, the “Jurisdictional Problem” arises when a court’s jurisdiction is tied to the facial/as-applied distinction. When this occurs, the question of a court’s jurisdiction becomes particularly difficult for litigants to evaluate because of the ambiguity of the facial/as-applied distinction. This Note illustrates these three problems primarily through the discussion of recent transgender rights cases in which the facial/as-applied distinction has proven decisive.
By recognizing and reckoning with these problems, courts and policymakers will be better positioned to offer doctrinal clarity regarding the facial/as-applied distinction. Additionally, this Note’s taxonomy helps litigants assess how to frame their constitutional claims, including at the pleadings and discovery stages of litigation
Revisiting Eli Lilly v. Canada: Judicial Interpretation of IP Law and Exposure to Investor-State Disputes
No full textEli Lilly v. Canada was an investor-state dispute settlement (ISDS) case widely noted for signaling a regime shift in intellectual property (IP) protection from the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to ISDS. Its true yet often overlooked significance, however, lies in being a case of first impression on whether judicial interpretation of IP law may serve as a basis for state responsibility independent of denial of justice. To bridge that gap, this Note undertakes a close reading of the novel doctrinal discussion in Eli Lilly and related precedents, drawing implications for the broader theory of state responsibility arising from substantive judicial acts. It then applies those implications to domestic IP regimes through a comparative lens, with particular attention to common law jurisdictions, where judicial interpretation plays a central role in developing IP law. This Note argues that Eli Lilly suggests judicial lawmaking may be reviewable by ISDS tribunals as a basis for state responsibility, akin to legislative or executive acts, thereby exposing common law IP regimes to heightened risk of investor-state disputes. Nevertheless, the “regulatory chill” of which scholars have warned as a result of Eli Lilly may be overstated. Any reading of the decision as offering a promising pathway to overturn domestic judicial lawmaking solely on the basis of reduced IP protection is likely too optimistic
