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The Devil in NEPA\u27s Details: Amending NEPA to Prevent State Interference with Environmental Reviews
Get PDFThe environment is susceptible to human harms because it lacks a voice of its own. Yet environmentalists have used their voices for generations to promote environmental protection, causing Congress to pass a variety of laws that prevent needless environmental destruction. The National Environmental Policy Act of 1969 (NEPA) advances this goal by directing the federal government to undergo an environmental review process anytime it wants to begin a project that could have detrimental environmental impacts. This process ensures that the federal government knows how a project will impact the environment and whether any feasible alternatives to a project may have less of an impact on the environment.
However, problems can arise when state agencies circumvent NEPA and interfere with the mandated environmental review to reach a result that ultimately benefits the state but harms the environment. Such was the case in Minnesota in July 2014. While the federal government was studying the impacts of a proposed railroad that would cut through an environmentally sensitive area, the Minnesota state government began making deals with cities in the region concerning the path of the tracks. The federal agency in charge of the project could have chosen a different route for the tracks—one that either did not cut through the protected area or that included efforts to minimize the environmental damage—but the state agency’s actions essentially ensured the tracks would be laid in the exact way the state wanted.
A local environmental group attempted to enjoin the agencies from deviating from NEPA’s strict guidelines, but the Court of Appeals for the Eighth Circuit held that the statute did not permit the group to bring a private cause of action against state officials. The case was dismissed, and the court neither reprimanded the state for interfering with the federal government’s planning efforts nor prevented the state from interfering further in future projects.
This problem is not unique to environmental groups in Minnesota. The way in which Congress wrote NEPA has caused citizen groups around the country to confront this same issue. This Note contends that Congress should amend the National Environmental Policy Act of 1969 to include a specific “citizen suit” provision that would authorize concerned individuals and environmental groups to bring private causes of action against state actors and agencies to prohibit states from unduly interfering with NEPA’s environmental review process.
Part I explains how NEPA currently functions and how environmental groups can allege violations of the statute in federal court. Part II explores a particular flaw in NEPA’s application and examines the current circuit court split concerning different interpretations of the statute. Building upon this foundation, Part III proposes that Congress should amend NEPA to include a citizen suit provision, thus resolving the circuit court split and providing federal courts with some much-needed clarity on the scope of NEPA’s application to state actors. Part IV addresses potential counterarguments before concluding that the proposed citizen suit provision will best protect against environmental harms
Regulatory Competition and State Capacity
Get PDFThis Article explores an underlying tension in the regulatory competition literature regarding why some jurisdictions are more attractive to firms than others. It pays special attention to offshore financial centers (OFCs). OFCs court the business of nonresidents, offer business friendly regulatory environments, and provide for minimal, if any, taxation on their customers. On the one extreme, OFCs are theorized as merely products of legislative capture— thereby lacking any meaningful agency of their own. On the other hand, OFCs are conceptualized as well-governed jurisdictions that attract investment because of the high quality of their laws and legal institutions—indicating some ability to manage legislative capture. This Article argues that the prevailing explanatory frameworks for OFC development and success overlook deeper institutional structures within these jurisdictions. Drawing on the political sociology literature on state development, this Article offers a new theoretical framework. It suggests that some OFCs may have experienced more success than others because of how they developed “state capacity”—i.e., their ability to formulate and implement specific kinds of policy choices skillfully and effectively. This Article makes two important contributions to the regulatory competition and OFC literatures. First, it places the institutional quality of jurisdictions at the center of the discourse and analysis of OFC achievements in the business law arena. Second, it introduces the interdisciplinary concept of “state capacity” into the growing scholarly debate concerning the rise of OFCs
Breathing Room for the Right of Assembly
Get PDFThis Article explores the legal and political fault lines that the wave of protests highlighting police violence and systemic racism in the summer of 2020 reveal. It focuses in depth on Detroit, Michigan, as a window into the ways that the First Amendment, as currently construed, under-protects those seeking political change and racial reckoning by demonstrating in the streets
The Pure-Hearted Abrams Case
Get PDFOne hundred years ago, Justice Oliver Wendell Holmes changed his mind about the right to free speech and wound up splitting the history of free speech law into two. In his dissent in Abrams v. United States, he called for the end of the old order—in which courts often ignored or rejected free speech claims—and set the stage for the current order—in which the right to free speech is of central constitutional importance. However, a century on, scholars have been unable to identify a specific reason for Holmes’s Abrams transformation, and have instead pointed to more diffuse influences. By drawing on heretofore overlooked material, and by investigating the evolution of Holmes’s political thought, this Article identifies a specific reason for Holmes’s reversal that is both compelling and new.
Along the way, this Article makes the surprising revelation that Holmes never believed his influential marketplace-of-ideas concept—that is, his argument in Abrams that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” Instead, he only cared about what the intellectual elite thought. This Article also makes the surprising revelation that big-name journalist and wit H. L. Mencken pushed Holmes to adopt libertarian free speech rhetoric in the final stretch of his career. As a result, Mencken emerges as a new contributor to the rise of modern free speech law
Blurred Lines: Disparate Impact and Disparate Treatment Challenges to Subjective Decisions-- The Case of Reductions in Force
Get PDFSubjective employment decisions may be challenged under disparate treatment (intentional discrimination) and/or disparate impact (the discriminatory consequences of a neutral policy) theories of discrimination. However, these theories and supporting evidence often are conflated when the criteria for selecting employees are ill-defined or unrecorded. In those instances, the process by which employees are selected merges with the selections themselves, these legal theories converge as well. This Article critically discusses how courts have struggled to distinguish these theories in cases alleging a discriminatory reduction in force. It suggests how these cases should be submitted to juries, to preserve the liability and remedies specific to each theory.
Treble, Treble Toil and Trouble: The New Per Se Rule as a Protection Against the Curse of the Supreme Evil
Get PDFThe Supreme Court has called collusion between firms the “supreme evil” of antitrust. Despite public and private enforcement efforts, collusive firms and the cartels they form cost American consumers billions of dollars a year and undermine the virtues of our free market economy. The Chicago School theory of antitrust enforcement, which has dominated antitrust scholarship, vehemently disapproves of private antitrust actions that enable plaintiffs to recover treble damages. Recent scholarship, however, has rejected the Chicago School’s concerns of overdeterrence and embraced the treble damages remedy. This Note follows the recent scholarship and proposes the New Per Se Rule, which would impose per se civil liability—including treble damages—on firms that are criminally convicted of collusion and those firms’ executives, regardless of whether or not the executives are individually prosecuted or convicted. The New Per Se Rule will radically alter the decision-making formulas of firms and their agents, likely transforming collusion from a rational and profitable business strategy into an irrational and unprofitable one. More importantly, the New Per Se Rule will strike at the root cause of collusion: firm executives. The New Per Se Rule will make it irrational for firm executives to engage in or allow the firm they command to engage in collusive activity. Once collusion is irrational, the “supreme evil” will cease to plague our economy.
There is No Planet \u27B\u27 : How U.S. Music Festival Production Companies Can Reduce Their Negative Environmental Impact by Incorporating as a Benefit Corporation
Get PDFThe music festival industry in the United States is growing exponentially each year, both in terms of fan attendance and the money being produced by concession, merchandise, and ticket sales. However, there is also a growing realization that there are several negative externalities associated with the growth of the music festival industry, not the least of which is the environmental damage that follows in the wake of music festivals.
The scene at most music festivals in the United States today is the same: a caravan of vehicles lined up single-file waiting to enter the campgrounds, camping tents of various sizes littered across the landscape, overflowing trash receptacles, plastic bottles strewn near the performance stages, and single-use food containers left behind as festival attendees leave the festival grounds in yet another massive car caravan. Music festivals today constitute a rite of passage of sorts for many of today’s youth, especially considering at least forty-five percent of the “millennial” generation in the United States attended at least one music festival in 2019. However, today, music festivals have also become synonymous with environmental degradation, attendee carelessness, and simply, waste. As this Note will argue, as environmental activist groups and others continue to pressure music festival organizers to adopt more eco-friendly policies, the solution to the growing list of environmental problems might lie in a policy already being adopted across the country: the incorporation of smaller music festival production companies as benefit corporations.
This Note will argue that while a number of the larger music festivals in the United States have instituted policies to reduce their carbon footprints, the main strategy should be to focus on encouraging smaller music festivals to incorporate as benefit corporations. First, there will be a discussion of the historical development of the music festival industry in the United States since the 1950s as well as an overview of what benefit corporations are, how they operate, and why they are distinct from other types of corporations. Second, the issues associated with a music festival production company incorporating as a benefit corporation will be examined.
Third, three examples will highlight how incorporation as a benefit corporation can be successful. Specifically, two U.S. music festivals and one Portuguese music festival will be analyzed. Fourth, two major U.S. music and arts festivals will be highlighted to show how non-benefit corporation- run music festival production companies can successfully operate environmentally sustainable festivals. Lastly, there will be a discussion of recent trends in the music festival industry, including the rise in the number of smaller music festivals incorporating as benefit corporations, the corporate restructuring of existing music festival production companies, as well as what the general public can do to increase awareness of the various environmental issues created by the U.S. music festival industry and how sustained efforts at the grassroots level can lead to systemic change in the future
Decentralized Finance: Regulating Cryptocurrency Exchanges
Get PDFGlobal financial markets are in the midst of a transformative movement. The creation of Bitcoin and Facebook’s proposed distribution of Diem mark a watershed moment in the evolution of the financial markets ecosystem. Purportedly, peer-to-peer distributed digital ledger technology eliminates legacy financial market intermediaries such as investment banks, depository banks, exchanges, clearinghouses, and broker-dealers.
Yet careful examination reveals that cryptocurrency issuers and the firms that offer secondary market cryptocurrency trading services have not quite lived up to their promise. Notwithstanding cryptoenthusiasts’ calls for disintermediation, evidence reveals that platforms that facilitate cryptocurrency trading frequently employ the long-adopted intermediation practices of their traditional counterparts. In fact, when emerging technologies fail, cryptocoin and token trading platforms partner with and rely on traditional financial services firms. As a result, these platforms face many of the risk-management threats that have plagued conventional financial institutions as well as a host of underexplored threats. Automated or algorithmic trading strategies, accelerated high frequency trading tactics, and sophisticated Ocean’s Eleven-style cyberheists leave crypto-investors vulnerable to predatory practices.
Early responses to fraud, misconduct, and manipulation emphasize intervention when originators first distribute cryptocurrencies— the initial coin offerings. This Article rejects the dominant regulatory narrative that prioritizes oversight of primary market transactions. Instead, this Article proposes that regulators introduce formal registration obligations for cryptocurrency intermediaries—the exchange platforms that provide a marketplace for secondary market trading. This approach recognizes the dynamic nature of cryptocurrency secondary market actors seeking to achieve disintermediation yet balances the potential benefits of trading intermediaries with normative regulatory goals—protecting investors from fraud, theft, misconduct, and manipulation; enforcing accountability; preserving market integrity; and addressing enterprise and systemic risk-management concerns