Emory Law Scholarly Commons
Not a member yet
2100 research outputs found
Sort by
Climate Change and the Law of National Security Adaptation
Get PDFThe Department of Defense (DoD) is the largest employer in the world, owns and operates an enormous global real estate portfolio, and emits more Greenhouse Gases (GHGs) than many nations. Entrusted with the national security, the DoD is now threatened by a new enemy—climate change. Climate change imperils national security infrastructure while undermining the military’s capacity to respond to climate-driven disasters at home and abroad. However, legal scholarship has yet to address what I call “the law of national security adaptation” and related questions. For example, how do environmental and climate change laws apply to the U.S. military? What laws can be employed to safeguard military installations from rising seas, extreme weather, and other climate risks?
This Essay addresses these questions, inspired by my experience as an environmental attorney in Norfolk, Virginia—home to the largest navy base in the world. I first describe how climate change has become a new “environmental enemy” that threatens national security property around the globe. Second, I describe and analyze how the law of national security adaptation has developed to apply to environmental law and property law to encompass climate adaptation efforts on military installations. In doing so, the law of national security adaptation brings together constitutional law, an amalgamation of executive branch directives and regulations, and climate legislation designed to safeguard military infrastructure. Last, I argue that insights for climate adaptation more generally can be gleaned from the military’s experience addressing climate change. Somewhat surprisingly, congressional action on national security adaptation has been a beacon of bipartisanship. It has kept the climate adaptation “flame” alive when climate action was being extinguished elsewhere. The law of national security adaptation thus offers broader, normative insights for adaptation efforts outside the military fence line
Section 1115 Waivers: Innovation Through Experimentation, or Stagnation Through Routine?
Get PDFThe Medicaid program operates as a federal-state partnership, in which the states agree to meet certain federally mandated requirements in exchange for federal matching funds for program expenditures. These federal matching funds can be anywhere from 50–90% of health care expenses incurred through state Medicaid programs. As such, states have a substantial interest in continuing this partnership and ensuring that their state plans comply with federal requirements. There is a way, though, in which states can gain more freedom in building their individual state plans. Through section 1115 waivers, states can ask the Centers for Medicare and Medicaid Services (“CMS”) to waive certain federal requirements, thereby allowing a state to implement an “experimental, pilot, or demonstration project” as its Medicaid program. Demonstration projects are intended to benefit health care by allowing states to try innovative ideas. These projects also benefit states and state Medicaid beneficiaries by allowing states to try different approaches to Medicaid that are better tailored to local needs. However, since their inception in the 1960s, section 1115 waivers have been abused. For example, the federal government has used these waivers to push political agendas on states, and states have used the waivers to cut corners purely in the interest of saving money. Many scholars have spoken to these issues and proposed novel solutions. This Comment specifically looks to one aspect of potential abuse: the duration of the operation of demonstration projects.
In 2017, CMS promulgated guidance that allowed for extensions of “routine, successful, non-complex” demonstration projects for up to ten years. However, section 1315, the governing statute of section 1115 waivers, only allows for extensions of up to three or five years. In fact, the statute explicitly limits waiver extensions to three or five years in two separate provisions, reinforcing Congress’s intention. Therefore, Congress did not leave a gap for CMS to fill in regard to this precise issue and CMS’s 2017 guidance is an impermissible construction of the statute. Additionally, the language “routine, successful, [and] non-complex” is in tension with the requirement that section 1115 waivers apply to “experimental, pilot, or demonstration project[s].” Experimental, pilot, and demonstration describe projects that have experimental value in that the projects test or trial experimental procedures. Routine, successful, and non-complex describe projects that no longer have experimental value because these projects have already been evaluated and determined to be successful with well-established procedures. In 2022, CMS removed the 2017 guidance and replaced it with 2015 guidance that only allows for waiver extensions up to the statutory limits of three or five years. But before replacing the 2017 guidance, CMS approved waiver extensions ranging from seven to ten years in nine states. A tenth state received an extension of ten years and nearly four months. All but one of those excessive extensions still stand today, unchanged.
The original purpose of section 1115 waivers was to create meaningful innovations and improve outcomes for Medicaid beneficiaries. This Comment contends that ten-year extension periods obstruct this purpose. Long project durations like this hinder and delay innovation by allowing stagnant projects to continue to operate for extended periods of time under CMS’s radar. More regular reviews conducted at intervals of five years or fewer provide more opportunities for external review and data examination so CMS and states can make any necessary adjustments. Additionally, ten-year extension periods block stakeholders from participating in the decision-making process for an inordinate amount of time. Stakeholders have shown that they value the opportunity to participate in public notice and comment periods regarding section 1115 waivers and that they do not want to wait ten years to do so. Finally, ten-year extensions effectively solidify the negotiations and agreements made between two administrations—one state and one federal—for an unreasonable amount of time. The effect of this is that future administrations and future voters will be bound by a contract negotiated by individuals who may no longer be in office. Future voters, and the agendas they vote for, should be protected by limiting demonstration project extensions to three or five years.
This Comment argues that, going forward, CMS should refrain from granting extensions in excess of the statutory three- or five-year limits. Further, while CMS has replaced the 2017 guidance, the agency must rescind or amend those extensions approved for periods in excess of five years under it. By revising the extensions to the statutorily prescribed operating periods, CMS would not only improve the functionality of the demonstration projects, but it would also address the invalidity of the 2017 guidance, thereby deterring administrations from reimplementing the ten-year extensions. Taking action by rescinding or amending these extensions is a critical step in ensuring that section 1115 waivers are able to fulfill their potential to create meaningful innovation and improved outcomes for Medicaid beneficiaries
The Public’s Companies
Get PDFThis Essay uses a series of survey studies to consider how public understandings of public and private companies map into urgent debates over the role of the corporation in American society. Does a social-media company, for example, owe it to its users to follow the free-speech principles embodied in the First Amendment? May corporate managers pursue environmental, social, and governance (“ESG”) policies that could reduce short-term or long-term profits? How should companies respond to political pushback against their approaches to free expression or ESG?
The studies’ results are consistent with understandings that both public and private companies have greater public obligations than they do as a matter of law, including obligations to respect customer and employee speech and political rights. They are also consistent with the view that business decisions by both public and private firms may credit non-shareholder interests—those of employees, the environment, or the community—over shareholder-value maximization. Together, these results point to the potential of public corporate law understanding to influence contemporary debates by reinforcing, or countering, political actors’ policy agendas
Inherently Incompatible: The Irreconcilable Tension Between Corporate Negligence Claims and the Federal Tort Claims Act
Get PDFUnited We Stand, Divided We Fall: A Survey of Current Public and Private Initiatives Addressing Board Diversity & a Proposed SEC Diversity Disclosure to Help Increase Board Diversity
Get PDFPrivacy for Student-Patients: A Call to Action
Get PDFConsider a law student who has a mental or reproductive health issue that the student wishes to keep private. If the student seeks care at an off-campus health clinic that is not affiliated with the student’s law school or university, the student typically has a number of federally enforceable privacy rights. For example, the federal HIPAA Privacy Rule will typically apply and prohibit the clinic from disclosing the student’s protected health information to professors, parents, and other third parties without the student’s prior written authorization. The law student also will have the right to receive a notice of privacy practices, the right to request further privacy restrictions, the right to obtain paper and electronic copies of medical records, the right to amend incorrect medical record entries, the right to receive an accounting of medical record disclosures, the right to ask privacy-related questions of an institutional privacy officer, and the right not to be intimidated, threatened, coerced, or discriminated against for exercising these rights. The HIPAA Security Rule also will typically apply, requiring the clinic to implement administrative, physical, and technical safeguards designed to protect the confidentiality, integrity, and availability of the student’s electronic protected health information. Finally, if the off-campus clinic discovers a breach of the student’s unsecured protected health information, the HIPAA Breach Notification Rule will typically apply, requiring the clinic to report the breach to the student, the federal government and, in certain cases, prominent media outlets serving the jurisdiction.
If the law student seeks care at a health center affiliated with the student’s university, however, the story will be completely different. This is because the medical records that result from the student’s encounter with the student health center—called student treatment records—are excepted from the definition of protected health information under the HIPAA Privacy, Security, and Breach Notification Rules. Student treatment records also are excepted from the definition of education records under the Family Educational Rights and Privacy Act of 1974 (FERPA), the major federal statute that requires federally funded academic institutions to protect the privacy of such records. These exceptions exist because Congress, in late 1974, expressed its intent that student treatment records be protected only by state law. Unfortunately, state law provides minimal protections for student treatment records.
This Article responds to the need for greater privacy, security, and breach notification protections for student treatment records. After reviewing a number of privacy and security breaches involving colleges and universities and the patchwork of federal and state law that fails to adequately protect student treatment records, this Article shows that many student health centers provide students with confusing information (at best) and misleading or incorrect information (at worst) regarding their privacy, security, and breach notification protections. After providing several practical, political, and health policy justifications for amending federal law, this Article re-writes relevant statutory and regulatory provisions in FERPA and HIPAA. If the proposals set forth in this Article are implemented by the federal government, student treatment records will receive the maximum privacy, security, and breach notification protections currently available under the law
The Case for Green Product Fixing: Reconciling Antitrust Law with Self-Regulation to Combat Climate Change
Get PDFAs corporations continue to prioritize environmental, social, and governance (ESG) improvements alongside profit, cooperation with competitors may be an important part of their toolbox. In particular, cooperation can help to advance initiatives like the elimination of an unsustainable product type, which is a drastic step a corporation likely would not take on its own for fear of hurting its bottom line and customer loyalty. The issue is that agreements among competitors to engage in such steps may violate antitrust laws, as suggested by the Justice Department in the Trump administration and numerous state attorneys general.
This Comment uses the term “green product fixing” to refer to the practice of a business entering into agreements with its competitors regarding environmentally-focused product standards and identifies two principal reasons why antitrust law may spell trouble for green product fixing. First, antitrust case law is clear that self-regulation in the form of extra-governmental product standards and codes of conduct is a violation of the Sherman Antitrust Act. Second, while the law does have some room to permit agreements that would otherwise be unlawful, based on certain offsetting procompetitive benefits, factors like a reduction in carbon emissions or pollution would not be considered as procompetitive benefits under the current application of United States antitrust law.
This Comment argues that a different type of analysis from that traditionally used in antitrust law is necessary with respect to green product fixing. The traditional analysis focuses on consumer welfare but does not capture the benefit to consumers, as members of society, from the reduction in negative externalities resulting from a cooperation agreement. This Comment proposes balancing the traditional analysis with consideration of environmental benefits that trickle down to consumers. It also evaluates potential avenues for legislative and judicial implementation of such an analysis
Is Public Company Still a Viable Regulatory Category?
Get PDFThis Article suggests that the ubiquitous “public company” regulatory category, as currently constructed, has outlived its effectiveness in fulfilling core goals of the modern administrative state. An ever-expanding array of federal economic regulation hinges on public company status, but “public company” differs from most other regulatory categories in that it requires an affirmative opt-in by the subject entity. In practice, firms today become subject to public company regulation only if they need access to the public capital markets, which is much less of a business imperative than it once was due to the proliferation of private financing options. Paradoxically, then, public company regulation is both more important than ever and easier than ever to avoid.
This new state of affairs raises a foundational question of regulatory design: Can and should the applicability of an important part of federal law depend on self-elective public company status? The Article answers this question through an original analysis of the genesis, idiosyncrasies, persistence, and ultimate erosion of the public company regulatory category. It draws on a detailed review of the historical record and over 50 federal corporate governance proposals between 1903 and 2023. This includes a hand-collected sample of recent proposed bills tied to public company status—highlighting both the ongoing demand for new economic regulation and the prevailing inertia in conditioning regulation on public company status. The Article also applies an assessment framework adapted from the literature on regulatory review in administrative law and inquires into factors such as fidelity to statutory objectives, changes in relevant conditions, the regulatory treatment of similar cases, the rate of regulatory complexity, and the incidence of regulatory divergence.
Ultimately, there is serious cause for skepticism about the viability of the current model, both with respect to the traditional goals of public company regulation (investor protection, capital formation, and capital market efficiency) and with respect to newer economic governance goals (accountability, transparency, voice, and aggregate efficiency). The Article responds to these findings by outlining several alternative regulatory approaches. Among other takeaways, shifting the frame away from the entrenched public company category suggests that in certain important aspects of economic governance, regulation should cover significant firms irrespective of their financing choices and, potentially, non-profit entities engaging in significant economic activity.
Short of wholesale reform, this Article has one immediate message for legislators and policy advocates: when designing new bills that touch on any aspect of economic governance, think carefully before conditioning those bills’ applicability on public company status
Private Ownership of Public Facts: Docudramas, Deals, and Life Story Rights
Get PDFFrom Elizabeth Taylor to Mike Tyson, celebrities have claimed ownership of their personae. But while the right of publicity and other laws give individuals the right to control commercial exploitation of their images, voices, mannerisms and taglines, the law stops short of recognizing a property interest in the events of their lives. On the contrary, the First Amendment protects producers of expressive works when telling non-defamatory stories about real people. The intuition that exists among celebrities and lay persons alike that individuals own their “life stories” has been fueled by the decades-old Hollywood practice of “acquiring” life story rights from the subjects of docudrama features based on actual events, sometimes for large sums. In this Article, we explore, critique, and propose to remedy the growing privatization of life stories and show that while the life story deal may seem to reflect beneficial private ordering, it in fact creates a significant negative externality by converting an essential part of the public domain into private property, thereby upsetting the balance of shared and proprietary information on which our systems of free speech and creative expression depend. We offer a parsimonious solution to this problem: Congress should enact a new federal statute barring the enforcement of state rights of publicity against fact-based creative productions such as books, films, and television programs, provided that, for private individuals, their name, image, and likeness are altered to protect their identities. Having a single, clear rule that operates ex ante provides uniformity and clarity that will secure the status of life story facts as part of the public domain without limiting the legal protection of individuals’ dignitary, reputational, and privacy interests