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Congressional Rules of Interpretation
Get PDFMany scholars argue that Congress should adopt federal rules of statutory interpretation to guide judicial interpretation. This Article uses a novel dataset to show that Congress has long used enacted rules of interpretation and has increasingly done so in recent decades. However, it has chosen to do so on a statute-by-statute basis in a way that has gone mostly unnoticed by scholars and judges. We developed a dataset by using computer code to search the U.S. Code dating back to 1946 for specific phrases indicating a rule of interpretation, then manually checked and classified each rule. These rules not only show that Congress can create interpretive rules, and has become increasingly likely to do so, but they also call into question how we should think about the use of judicial canons. Canons are judge-made interpretive presumptions, and this Article shows that Congress increasingly includes interpretive rules to the same effect in the enacted text of its statutes. For example, one of the most important substantive canons of interpretation is the federalism canon, which tells courts to presume that a federal statute does not preempt state law absent a clear congressional intent to do so. Yet, Congress includes hundreds of rules of interpretation in the U.S. Code that directly address this same issue. Similarly, Congress directly addresses canons like the presumption against implied repeal, presumptions of consistent usage, and many others in enacted statutes. This Article\u27s findings should cause judges and scholars to rethink the use of canons and the justifications for using them
Goss v. Lopez as a Vehicle to Examine Due Process Protection Issues with Alternative Schools
Get PDFCircuits are split on whether students are entitled to procedural protections before school officials may force them into alternative schools. This Note argues that students facing an involuntary transfer to a disciplinary alternative school are entitled to procedural protections under the Due Process Clause of the Fourteenth Amendment. Part I explains the trend toward the use of disciplinary alternative schools and the social and educational harms that these schools exacerbate. Part II explores the current circuit split around the procedural due process rights of students facing involuntary transfer to an alternative school. Part III argues that courts should expand the Supreme Court\u27s holding in Goss v. Lopez to ensure students receive due process protections before being involuntarily transferred to disciplinary alternative schools. Part IV addresses counterarguments and concludes that, by extending procedural protections to students facing involuntary alternative school transfers, courts can protect those most vulnerable from harmful disciplinary actions.
This abstract has been adapted from the author\u27s introduction
Regulating Dynamic Risk in Changing Market Conditions
Get PDFHow successful are the SEC\u27s attempts to regulate dynamic risk in financial markets? Using mutual fund disclosure data from two financial shocks--the Puerto Rican debt crisis and COVID-19--this Article finds evidence that SEC open-ended regulations, like the obligation to disclose changing market conditions, are largely successful in capturing dynamic, future risk. Funds engage in widespread and, often, detailed disclosures for new risks--although these disclosures vary widely in specificity. But not all funds disclose new risks. This creates perverse incentives for funds to opt out of disclosure or downplay threats with boilerplate language when new risks are emerging. This Article recommends several SEC interventions to improve dynamic risk disclosures including empirically monitoring disclosures, issuing guidance when problematic variation is observed, and enforcing disclosure standards
Detoxing from Clean Claims: Bridging the Gap Between Clean and Dirty Beauty
Get PDFThe clean beauty industry has gained increasing popularity in the last couple of years. This has spurred the development of many brands and impacted what consumers look for in their products. This Note engages in the existing conversation in the beauty industry pertaining to clean products by showing that the lack of interference from the Food and Drug Administration (FDA) and the Federal Trade Commission (FTC) to set definitional criteria for what constitute \u27\u27clean products has resulted in an increase in the commercialization of health-conscious consumer beliefs based on ambiguous and misleading information. These consumers are stuck in a loop created and perpetrated by companies. Without guidelines from the FDA and FTC, companies took the opportunity to exploit a narrative that the United States (U.S.) does not regulate ingredients in cosmetics or skincare. In turn, companies situate themselves as actors looking after the welfare of consumers in the cosmetic and beauty space. This Note seeks to dispel this myth and urge the FDA and FTC to create guidance on the advertisement of personal care products that claim to be \u27\u27clean, natural, and most importantly, non-toxic. Dual action is needed. The FDA must set the standard, and the FTC must regulate product use in commerce
Standby Guardianship for Incarcerated Custodial Parents
Get PDFWhen a child’s custodial parent is incarcerated, the child is left to either live with relatives who do not have the legal authority to make decisions for him or to live with strangers by way of the foster care system. This Note identifies standby guardianship laws as a means to better care for children of incarcerated parents by expanding an already existing legal framework. Currently, standby guardianship laws allow custodial parents suffering from debilitating illnesses to grant legal custody over their children to another adult for the length of their incapacity without terminating their own parental rights. This Note argues for expanding the laws’ coverage from parents suffering from serious illnesses to also include custodial parents facing incarceration. Allowing parents, rather than the State, to decide how a child will be cared for while the parent herself is unavailable, is beneficial to the parent, the child, and the State, regardless of whether the parent is ill or incarcerated. This Note explains how switching the inquiry into the child’s placement from social services to the court does not compromise child safety and does so in a way that saves state resource expenditure. Additionally, allowing parents to make the placement decision prioritizes the family unit and allows for a more child-centered approach that meets each child’s unique needs. Neither the State nor the parent has to worry that the child is being inadequately tended to, while the State saves money and parents get to maintain their parental rights. This Note urges all states to adopt standby guardianship laws that include incarcerated custodial parents among those who may designate an alternate guardian for their children
Racism and Toxic Burden in Rural Dixie
Get PDFRural pollution hotspots receive inadequate attention during impact assessments: low population density is strategically used to suggest rural areas lack critical importance. Local resistance led to a legal victory for Union Hill, Virginia, where a door-to-door household study of demographics and family heritage exposed data inequities and biases in state practices, establishing a precedent for attention to environmental injustice and disproportionate cumulative impacts on rural majority Black communities. Critical legal geographies of cases from Buckingham, Pittsylvania, and Charles City Counties in the Commonwealth of Virginia document patterns in the ways fossil fuel ‘sacrifice zones’ intersect with historic colonialism in rural areas sustaining patterns of discrimination toward minority and low-wealth families. These cases illustrate the impact of citizen science and community expertise needed to counter data inequities in permitting processes, and the need for geospatial mapping of toxic polluting sites as visual evidence of already existing adverse environmental health impacts. Participatory action research employs community-informed pathways to reverse disparities and promote meaningful engagement and fair treatment of rural populations. Market and power analyses of ten factors reveals ways landowners and communities are systematically and persistently disadvantaged, while examples of five pathways demonstrate necessary transformation
Stuck in the Net: Promoting Global Shark and Ray Populations Through National Sustainability Import Laws
Get PDFShark and ray populations are crucial to a healthy oceanic ecosystem, but regulation of harm is difficult to manage for these highly migratory species. The massive decline of shark and ray populations has triggered an international response, including collaborative protections against the overharvest and sale of endangered groups. However, recent studies show that protections must extend past direct harvest because an estimated thirty to fifty percent of population kills occur through “accidental by-catch” in the fishing process. The United States has attempted to fill some of the missing protections for sharks in national waters, as well as to implement bans against the import of endangered shark and ray species. While U.S. national trade laws put pressure on foreign nations to end the over harvest of shark and ray species, they do not solve the issues of by-catch or traceability that haunt the supply chain. This Article examines international regulations protecting shark populations as well as U.S. import laws on highly migratory animals, ultimately theorizing that trade regulations promoting sustainably harvested sea food are the most promising path to protect shark and ray species
Incidental Take Under the Migratory Bird Treaty Act and How to Share the Skies
Get PDFThis Note will focus on one piece of legislation that can protect birds from wind turbines: the Migratory Bird Treaty Act of 1918 (“MBTA” or “the Act”). The MBTA makes it illegal to hunt, kill, capture, import, export, sell, buy, pursue, possess, transport, or take a bird on the list of protected species, which covers hundreds of types of birds as well as their nests and eggs. The law forbids these acts in any manner, by any means, and at any time. The text itself does not explicitly state whether intentional and unintentional acts should both carry liability, which has caused stark discrepancies between judicial circuits that cannot logically coexist. One interpretation must eventually win the day. The one that will promote biodiversity conservation and provide more certainty to facilitate renewable energy development is also the one that most aligns with the statute’s plain text: that the MBTA covers unintentional takings.
This abstract has been taken from the author\u27s introduction
