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Flooding Their Mailbox: Recommendations for Notifying Residents of Changes to FEMA Flood Maps
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The Evidence Rules That Convict the Innocent
Get PDFOver the past decades, DNA testing has uncovered hundreds of examples of the most important type of trial errors: innocent defendants convicted of serious crimes like rape and murder. The resulting Innocence Movement spurred reforms to police practices, forensic science, and criminal procedure. This Article explores the lessons of the Innocence Movement for American evidence law.
Commentators often overlook the connection between the growing body of research on convictions of the innocent and the evidence rules. Of the commonly identified causes of false convictions, only flawed forensic testimony has received sustained attention as a matter of evidence law. But other important contributors, like mistaken identifications and unreliable confessions, also pass through evidence rules. These pathways to admission go unquestioned today but are the result of long-forgotten policy choices that were once controversial precisely because they increase the likelihood of convicting the innocent.
This Article highlights these, and other, overlooked implications of the Innocence Movement. It argues that the discovery and ongoing chronicle of hundreds of false convictions present a unique opportunity to reevaluate American evidence law. This reevaluation could lead to innocence-protective changes to existing evidence rules and a welcome infusion of energy into evidence policymaking and commentary
Fiscal Waivers and State Innovation in Health Care
Get PDFThis Article describes how the Department of Health and Human Services (HHS) has used fiscal waiver authorities—delegated power to alter federal payments to states under Medicaid and the Affordable Care Act (ACA)—to influence state health policy choices. It highlights how the agency uses its fiscal waiver authorities to shape which reforms states choose to pursue, in some cases inspiring genuine state innovation and in others encouraging states to adopt reforms favored by HHS or discouraging states from adopting disfavored reforms. Moreover, while HHS has sometimes influenced state policy making in ways that further the substantive goals of the ACA and Medicaid (such as by facilitating reinsurance programs that make coverage more affordable), at other times it has done so in ways that undermine those goals (such as by incentivizing states to cut benefits and eligibility or by stifling state single-payer and public-option experiments).
This Article theorizes fiscal waiver authorities as a double-edged tool from the perspectives of health policy, federalism, and administrative law. Fiscal waiver authorities are a distinctively valuable tool from the standpoint of health policy because they share federal savings, using delegated scorekeeping to overcome the “tyranny of the budget” and its adverse effects on health reform. But the informality currently surrounding the agency’s use of executive conditions on waiver approvals makes fiscal waiver authorities ripe for leveraging and abuse, raising health policy, federalism, and administrative law concerns.
This Article concludes by offering concrete prescriptions for the next phase of health reform, which is poised to rely heavily on either existing fiscal waivers or new ones. It recommends that HHS bring greater formality to its process for approving, denying, or negotiating state waiver requests and cautions that if the agency does not do so then courts may force such formality on it by way of nondelegation, federalism, or administrative law doctrine. It also suggests the development of a pioneer pathway program with greater predictability and fiscal flexibility to facilitate health-promoting state innovations
Greening the Trust: Enforcing Pennsylvania\u27s Environmental Rights and Duties to Combat Climate Change
Get PDFOver the last century, humans have warmed the planet by approximately 1.0°C. Pennsylvania’s average temperature has risen 1.8°F in the last hundred years, and climate scientists predict it will warm an additional 5.4°F by 2050. These rising temperatures create feedback loops, leading to warming that will eventually become irreversible. Warmer temperatures have already led to melting ice caps, rising sea levels, dangerous weather patterns, and food shortages. Human-produced greenhouse gases (GHG) are the largest contributing factor to this warming. The scientific community largely agrees that if humans do not reach carbon neutrality by 2050, damage to the climate will be irreparable. Beyond that point, it will be nearly impossible for humans to mitigate, let alone prevent, the worst of climate change’s impacts on the planet.
For at least the last decade, scientists and environmental organizations have emphasized the need to take protective measures against climate change and have provided actionable steps for governments at every level. Above all, these groups have stressed the importance of reducing carbon emissions and have proposed guidelines to achieve that goal. These strategies include transitioning energy sources and industries to greener practices, investing in sustainable infrastructure and agricultural systems, and climate finance and carbon pricing programs. Some countries have taken these proposals seriously and implemented significant policies and legislation to combat climate change.
The United States, particularly at the federal level, has ignored many of these recommendations for combatting climate change. Despite intense lobbying efforts and growing public support, Congress has failed to enact meaningful climate legislation. In recent years, the executive branch has rolled back many protective regulations. Constitutional jurisdiction requirements and the federal judiciary’s reluctance to recognize environmental rights have thus far posed insurmountable barriers to rights-based climate litigation.
In light of these challenges at the federal level and the dwindling time remaining to correct course, states, with fewer threshold barriers posed by jurisdictional requirements, are an increasingly attractive forum for enforcing environmental rights. At the state level, officials can enact, implement, reinterpret, and amend policies, legislation, and constitutional provisions more quickly and with more flexibility than their federal counterparts. States, particularly in recent years, have taken advantage of that flexibility. As of 2011, twenty-two states have constitutional provisions that protect environmental concerns either as a civil right or as a general policy matter. Despite these amendments, enforcing environmental rights has proven challenging in many states.
In 1971, Pennsylvanians voted to ratify the Environmental Rights Amendment (ERA) in Article I, Section 27 of the Commonwealth’s constitution. Unlike other states, Pennsylvania enumerates environmental protections in its Declaration of Rights, placing them alongside other fundamental rights, such as the freedom of speech and religion. Despite this elevation, early decisions from the Pennsylvania courts severely limited the ERA’s power. However, Pennsylvania courts have recently construed section 27 to protect Pennsylvanians’ environmental rights and impose certain duties on the Commonwealth. Pennsylvania’s ERA jurisprudence offers helpful legal principles that other states can tailor to their own constitutional frameworks to address climate change at a subnational level.
In October of 2019, Pennsylvania Governor Tom Wolf signed Executive Order 2019-07, which directed the Commonwealth’s Department of Environmental Protection (DEP) to produce a plan by July 2020 to reduce Pennsylvania’s carbon emissions by either joining the Regional Greenhouse Gas Initiative (RGGI), a greenhouse gas cap and trade program, or establishing its own carbon emission reduction scheme. As participants in RGGI’s cap and trade system, nine states in the Northeast and mid-Atlantic region limit GHG emissions by selling carbon allowances in quarterly auctions, the proceeds of which are returned to participating states. In early 2020, the DEP presented its preliminary proposal for implementing a cap and trade program and has since continued through the regulatory rulemaking process. Despite this progress, the Commonwealth has not yet articulated how it will use the funds generated from RGGI’s allowance auctions. This Note argues that the Commonwealth not only has a duty to combat climate change by reducing carbon emissions but also has a duty under the ERA to invest the funds it earns through carbon allowance auctions into the conservation and protection of Pennsylvania’s environment.
Part I examines the ERA’s purpose and early history. Part II analyzes recent court decisions that have established both the contours of Pennsylvanians’ environmental rights and the Commonwealth’s duties under the ERA. Part III explains the functionality of cap and trade systems generally and how RGGI currently operates. Part IV discusses how the Commonwealth’s duties under the ERA inform the administration of a cap and trade program and how Pennsylvania courts can enforce the fulfillment of those duties. Part V anticipates and addresses potential counterarguments regarding enforcement in light of separation of powers concerns and the sufficiency of RGGI in fulfilling the Commonwealth’s duties
Who Constrains Presidential Exercise of Delegated Powers?
Get PDFBuilding on the work of administrative law scholars who have identified and illuminated the several components of the problem over the years, this Article will seek to show what has happened when a cluster of separate circumstances have come together to create a new and serious threat to individual liberty when the President exercises expansive delegated authority. Several doctrinal components lead to this confluence: First, the moribund “intelligible principle” test has evolved to provide little or no constraint on this or any other delegation. Second, a delegation to the President, specifically, is not subject to the procedural requirements of the Administrative Procedure Act (APA), leaving no extrinsic, enforceable obligation to avoid arbitrary action. Third, the Supreme Court has barred from review the correctness of any factual finding by the President that provides the statutory trigger for his own power. Finally, a new presidential attitude has ushered in a collapse of the voluntary or informal norms of self-restraint that once offered some modicum of constraint on presidential power.
Developments in the Court’s separation-of-powers jurisprudence over decades have opened up a dangerous lacuna in the overall constitutional protection against arbitrary government action, ready to be exploited by any President who might show an inclination to read his or her power as unlimited and unchecked, undeterred by the norms of historical practice. When a President walks upon the stage thus set by prior doctrine, the combination creates a perfect storm for a threat to individual liberty. The following discussion will first examine each element of the problem in the case law as fleshed out by earlier scholars, and then examine the ramifications for the protection of rights today in the center of the storm. I will conclude by suggesting that the nondelegation doctrine should indeed be revived, but specifically for the purpose of limiting, constraining, and reviewing the actions of a President pursuant to direct delegated authority
