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The Overlooked Case of October Term 2023: Implications of \u3cem\u3eSEC v. Jarkesy\u3c/em\u3e on Environmental Law
No full textIn the summer of 2024, the Supreme Court published its opinion in SEC v. Jarkesy. In Jarkesy, the Court held that certain administrative cases must be adjudicated through Article III courts with juries instead of administrative law tribunals. The case involved fraud charges against George Jarkesy, Jr., an investment manager. After a Securities and Exchange Commission (SEC) investigation, the agency alleged that Jarkesy had violated the Securities Exchange Act of 1934. Subsequently, SEC Administrative Law Judges (ALJs) levied civil penalties against Jarkesy for securities fraud. On appeal, the Court held that securities fraud under the Securities Exchange Act is a common law cause of action to be adjudicated through Article III courts with juries, not ALJs. Although the Supreme Court’s opinion in SEC v. Jarkesy analyzed statutes enforced by the SEC, the holding could also be applicable to some statutes administered by Environmental Protection Agency’s (EPA) ALJs, specifically the Clean Air Act (CAA), Clean Water Act (CWA), and Resource Conservation and Recovery Act (RCRA).
This Note consists of six parts. Part I will explain the background of the ALJ system and discuss the statutes that the Note will be analyzing. Part II will give the background of the Jarkesy decision. Part III will explain how the civil penalties levied by EPA’s ALJs are legal in nature, rather than equitable in nature. Part IV will explain that, although most of the statutes do not include direct language that closely resembles a common law cause of action, the legal nature of the penalties supersedes the need for this language in the statutes. Part V will discuss how the “public rights” exception does not apply to these statutes. Part VI will argue that certain civil penalties levied by EPA’s ALJs are unconstitutional because they violate the Seventh Amendment. Rather, those subject to these penalties have a right to a jury trial in an Article III court
Environmental Bankers: States Are Billing Fossil Fuel Companies for Extreme Weather Disasters
No full textFor decades, common law has been the pathway to remediation for environmental tragedies. Victims of traditional environmental harms can pursue justice through legal challenges like nuisance, negligence, and violations of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). However, climate change–induced natural disasters have led to the normalization of the “Act of God” exception; a policy provision commonly used in insurance law that excludes coverage for damage caused by unforeseeable natural disasters. Even so, real cities suffer the consequences of the real harm, whether insurance accepts it or not; so, who bears the burden of funding the recovery?
Maryland, Massachusetts, California, and Oregon are paving the way in drafting strict liability climate disaster laws (“climate disaster laws”), and in May of 2024, Vermont was the first state to make strict liability payments for climate disasters a reality. New York followed quickly behind in 2025. Shortly after Vermont and New York passed their climate disaster laws, several fossil fuel companies filed lawsuits claiming that the laws were unconstitutional.
Part I of this Note will outline the framework of the six climate disaster laws. Because Vermont and New York are the first states to pass this type of legislation, they will act as the Note’s baseline comparisons. After analyzing each of the six state laws, a clear divide in strategy will appear, with Vermont, Oregon, and California on one side (“fluid states”) and New York, Massachusetts, and Maryland on the other (“fixed states”). Part II will provide a historical overview of climate change laws that have been in effect for decades, showcasing the traditional credibility of climate change accountability. Part III will present scientific studies on climate disaster costs through examining the accuracy of climate data and theoretical calculations. Part IV will explore the social elements that factor into damage calculation, such as public policy costs and benefits. Finally, the Conclusion includes a prediction for the future of climate law cases by highlighting the split in judgments from the Supreme Court. This section will affirm that strict liability laws for climate disasters do not violate the Fourteenth Amendment’s Fairness Clause because the foundation for the laws is credible.
This abstract has been taken from the author\u27s introduction
The Broken Token Problem: Why Crypto Classification Remains Elusive
Get PDFCrypto is at a crossroads. After trillions in value destruction, a cascade of bankruptcies and millions of defrauded believers, many are wondering whether the sector has a future. Regulators, meanwhile, are not taking chances, “carpet bombing” crypto with legal actions. Notwithstanding the stakes, consensus remains elusive regarding first-order questions—including, what is crypto?
Part of the problem, this Article posits, is that we have largely been thinking about crypto incorrectly. Rather than a simple, uniform asset, crypto represents a highly heterogenous ten-thousand-instrument universe. One size cannot possibly fit all.
This Article introduces a novel unifying taxonomy for the sector based on asset-specific economic substance and legal attributes, providing a powerful tool for understanding market structure, illuminating abusive practices, and identifying areas for reform.
Applying that framework, the Article shines a light on crypto’s murkiest corner: so-called “utility tokens,” which it finds most economically analogous to loyalty programs, such as airline miles. Unfortunately, there is a night-and-day mismatch between regulatory guidance and market practice around these instruments—the “Broken Token Problem,” as this Article terms it. Broken Tokens are legally problematic instruments (i) labeled as “utility tokens,” (ii) marketed like stocks, but (iii) offering minimal legal rights—most akin to digital trinkets. The prevalence of these “assets” creates multi-level incongruences that harm all stakeholders.
Fortunately, many challenges of the status quo can be alleviated by enforcing asset-level delineations, emphasizing consumer protection, remedying accounting mismatches for company-created tokens, and maintaining appropriate skepticism regarding calls for relaxing crypto regulatory standards
Section Three of the Fourteenth Amendment: Insurrection
Get PDFThe public, scholarly, and legal debate over whether former president Donald Trump is eligible to hold office under Section Three of the Fourteenth Amendment has focused far more on technical legal questions than on whether Trump engaged in an insurrection. Scholarly and public commentary rarely examines the constitutional/ common law of insurrection, preferring instead to examine whether Trump is exempt from Section Three because Section Three either exempts presidents or the presidency from disqualification or because Section Three is not self-executing. Trump v. Anderson (2024) focused on state incapacity to disqualify “oathbreaking insurrectionists” rather than on whether Trump was an “oathbreaking insurrectionist.” One consequence of this omission in the popular press and Supreme Court is the impression that what constituted an insurrection or engaging in an insurrection was not well defined in 1866, that the Reconstruction Republican framers largely jerry-rigged a vague understanding of insurrection into the Constitution.
This Article demonstrates that the constitutional/common law of insurrection was well-established and well-understood in 1866. “Insurrection” at the time Section Three of the Fourteenth Amendment was framed and ratified “had a precise and well-understood meaning.” This understanding was articulated from the American Revolution to Reconstruction by the Supreme Court, by Supreme Court Justices riding circuit, by other federal judges, by state court justices, and by the leading legal treatise writers during the period between the ratification of the Constitution and Reconstruction. Clear standards exist from 1866 that enable state and federal officials to determine whether the persons responsible for drafting Section Three of the Fourteenth Amendment would have thought the events of January 6, 2021, were an insurrection and whether Trump engaged in that insurrection.
The Congressional Globe, case survey, and constitutional commentaries clearly support the following conclusions: First, an insurrection at the time Section Three was framed consisted of an assemblage resisting the implementation of any law by force, violence, and intimidation for a public purpose and was not limited to rebellious attempts to overthrow the government. Second, the events of January 6, 2021, are consistent with the legal understanding of insurrection in 1866. Third, constitutional authorities before, during, and immediately after the Civil War maintained that any person who knowingly contributed to an insurrection was engaged in that insurrection, even if that person did not personally commit an act of violence or was far from the scene of the violence, force, and intimidation. Fourth, if the allegations made by the Final Report of the Select Committee to Investigate the January 6th Attack on the United States Capitol and state decisions disqualifying Trump are true, the Former President participated in the insurrection that took place on January 6, 2021.
Congress relied on this consensual understanding of insurrection when framing the Second Confiscation Act of 1862. The Senators who insisted that Section Two of that measure punish persons who “shall hereafter incite, set on foot, assist, or engage in any rebellion or insurrection against the authority of the United States” stated that they were not altering the law of treason and insurrection by describing separate offenses. Section Two was rooted in part by a misinterpretation of judicial decisions that some Senators believed required that they spell out what they believed constituted insurrectionary behavior and in part because no one wanted all participants in the Civil War to be executed for treason. If members of the Thirty-Seventh Congress would have thought that an insurrection took place on January 6, 2021, and Trump participated in that insurrection, then those members of the Thirty-Ninth Congress who framed Section Three would have thought Trump is disqualified from holding state or federal office in the United States
The First Amendment in Education: May Faculty at Public Schools Be Disciplined for Political Hate Speech?
Get PDFAt a House hearing on December 5, 2023, the presidents of three universities— Harvard, MIT, and the University of Pennsylvania—refused to state that certain kinds of hate speech, specifically calls for genocide of Jews, are prohibited on their campuses. The backlash against two of them, Harvard’s Claudine Gay and Penn’s Liz Magill, was swift and devastating; both were successfully pressured to resign. Still, while Professors Gay’s and Magill’s responses were widely criticized as tone-deaf, they were legally correct. At many private, and all public, colleges and universities, even the worst hate speech is generally protected unless it is accompanied by aggressive, threatening, or violent conduct.
These “demotions” augur even worse consequences, including termination, for less powerful faculty who say the “wrong” thing, in particular statements in support of Trumpism, an increasingly mainstream ideology that stitches together white supremacy, misogyny, a preference for autocracy over democracy, and several phobias—homophobia, Islamophobia, transphobia, and xenophobia. The question I address in this Article is whether these consequences are constitutional at public schools. Whose right is stronger—a public-school teacher’s First Amendment right to express pro-Trumpist sentiments or a public school’s right to maintain a fair, inclusive, and welcoming learning environment? I argue that the public school has the upper hand here, that it is indeed constitutionally permitted to prohibit political hate speech that contributes to a hostile learning environment. Still, I narrowly limit this prohibition to dehumanizing speech—that is, speech explicitly suggesting that some human beings are “lesser,” intrinsically less valuable, than other human beings.
One objection to this position is that public schools may not prohibit any speech, no matter how dehumanizing, because such prohibition amounts to constitutionally impermissible viewpoint discrimination. I argue, however, that viewpoint discrimination is an integral part of education and therefore constitutionally permissible. Education necessarily involves promoting some values over others. These values fall into seven categories: constitutional principles, the humanist virtues, successful character traits and behaviors, knowledge and truth, art and beauty, health (both mental and physical), and social goods (such as justice, peace, and rule of law)
The Ugly Rhetoric of \u3cem\u3eDobbs\u3c/em\u3e, Or, Why Jack Balkin Is History
Get PDFThis Essay has three claims. First, I want to emphasize an underappreciated ethical virtue elicited by the practice of rhetoric: it demands that the speaker get out of his own head and focus on his audience and what they care about. History matters because it speaks to us. It tells us who we are and why we are doing what we are doing. The rhetorical deployment of historical narrative in political discourse can help to forge a collective identity in which we all can recognize ourselves, and so make the polity more inclusive. Second, if this aspect of rhetoric is understood, we will notice when it is offered in a way that marginalizes some citizens by excluding them from its audience and implying that they do not matter and that their concerns are beneath notice. Justice Alito’s opinion for the Court in Dobbs v. Jackson Women’s Health Organization is an example, the nastiness of which is best appreciated when one considers it as a rhetorical exercise. And third, the work of exposing these abuses supports one of Balkin’s central methodological points, which is that liberals and progressives should not denounce originalism, but rather should master its techniques and learn to deploy its rhetorical power.
This abstract has been taken from the author\u27s introduction
Patent Term Tailoring
Get PDFPatent rights are designed to encourage innovation with both the promise of a patent and with its expiration. Currently, patent term lasts from issuance until twenty years from the application date, with minor exceptions. The patent term is limited so that rewards for past invention do not overly hinder future progress. Although the goal is laudable, a uniform patent term is a blunt instrument to achieve such a nuanced balance. Historically, the patent system was not averse to tailoring terms through, for example, individually granted extensions to undercompensated inventors or term curtailment when a foreign patent holder failed to “work” a patented invention in the country. Currently, patent extensions are primarily granted to counteract time spent on administrative processes, and patent terms may be curtailed only by a patent holder through failure to pay maintenance fees or terminal disclaimer.
This Article examines current and historical law and doctrine affecting patent duration and suggests changes to better pursue patent policies, making two contributions to the literature. First, this Article groups together all the various term-tailoring mechanisms for analysis, bringing theoretical consistency to analysis of rules that are often considered and analyzed separately. This grouping suggests potential avenues for reform, which is the second contribution. This Article argues that patent maintenance fees are an underused policy lever that allow patent holders rather than administrative agencies to evaluate the worth of inventions, ex post, and choose among simple term curtailment options, lowering third party costs. At the same time, patent term extension and adjustment result in variable extensions and potential term variations globally, while expedited examination remains an underused policy tool. These extensions, too, are ripe for modifications
State Sovereign Immunity and the New Purposivism
Get PDFSince the Constitution was first proposed, courts and commentators have debated the extent to which it alienated the States’ preexisting sovereign immunity from suit by individuals. During the ratification period, these debates focused on the language of the citizen-state diversity provisions of Article III. After the Supreme Court read these provisions to abrogate state sovereign immunity in Chisholm v. Georgia, Congress and the States adopted the Eleventh Amendment to prohibit this construction. The Court subsequently ruled that States enjoy sovereign immunity independent of the Eleventh Amendment, which neither conferred nor diminished it. In the late twentieth-century, Congress began enacting statutes seeking to override state sovereign immunity. In reviewing these acts, the Court established that Congress may abrogate immunity when exercising its powers to enforce the Fourteenth Amendment, but not when exercising its Article I powers. This distinction is consistent with the original public meaning of the constitutional text understood in historical context. Recently, in a surprising turnabout, the Court abandoned this established paradigm by finding that the States agreed to an implied “structural waiver” of their sovereign immunity in the “plan of the Convention” whenever such immunity would “thwart” or “frustrate” the purpose underlying a congressional power that is “complete in itself.” The Court’s new purposive approach to state sovereign immunity is incompatible with the Constitution because it gives courts open-ended discretion to alter the federal-state balance established by the instrument. As Alexander Hamilton explained, because the Constitution “aims only at a partial union or consolidation,” “the whole tenor of the instrument” requires adherence to “the rule that all authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigor.” Under this rule, the “plan of the Convention”—properly understood— divested the States of their sovereign rights only when it did so clearly and expressly or by unavoidable implication. By relying on a strongly purposive methodology to find implied structural waivers of state sovereign immunity, the Court’s new approach disregards this fundamental rule and thus the Constitution itself
Presentation: The Court Versus the Clean Water Act? Fights Over Continuity in Life and Law
No full textThe Private Abridgment of Free Speech
Get PDFThis Article challenges the orthodoxy that First Amendment speech rights can bind only the state. I argue that the primary justification for the freedom of speech is to protect fundamental interests like autonomy, democracy, and knowledge from the kind of extraordinary power over speech available to the state. If so, this justification applies with nearly equal force to any private agents with power over speech rivaling that of the state. Such a class of private agents, which I call quasi-state agents, turns out to be a live possibility once we recognize that state power is more limited than it seems and can be broken down into multiple, equally threatening parts. Quasi-state agents might include a limited set of corporations, from the largest social media platforms to powerful private employers. However, because quasi-state agents are not exactly like state agents but pursue important private aims that the state cannot, I argue that the First Amendment might bind them slightly differently (and less demandingly) than it does the state. Drawing on examples from American state and comparative constitutional law, I offer several analytical models for understanding this differential application