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Navigating Rough Waters After Sackett v. EPA: Federal, Tribal, and State Strategies
Full text linkThe Clean Water Act is the primary federal law regulating impacts to water resources and water quality in the United States. Congress asserted the focus of the Act in the first section: to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. Federal jurisdiction to implement this focus for many of the Act’s water protection programs turns on whether a waterbody is classified as a “Water of the United States” (WOTUS). The definition of WOTUS has been contested since the ink dried on the Act, with proponents of greater water protections arguing for more expansive boundaries of federal jurisdiction. Most recently, the Supreme Court re-interpreted WOTUS in Sackett v. Environmental Protection Agency (2023), in which the Court held that wetlands 300 feet from Priest Lake would no longer be considered adjacent wetlands protected as WOTUS. Upending forty-five years of agency and judicial interpretation, the Court narrowed the definition of WOTUS to only those wetlands that have a continuous surface connection to a traditionally navigable body of water, such as a river or lake. This places many wetlands and ephemeral and intermittent streams outside of federal jurisdiction, and thus, the protections of the CWA. Yet, wetlands and nonperennial streams are vital to the chemical, physical, and biological integrity of the Nation’s waters. Wetlands filter pollutants from water, retain and absorb flood waters, and provide habitats for wildlife. Ephemeral and intermittent streams are ubiquitous and important pathways that drain water and pollutants into traditional navigable waters. Removing federal protections means these areas are vulnerable to ruin by human alterations, and it increases flood risks to downstream communities.
Decreasing federal jurisdiction over the majority of wetlands and nonperennial streams across the U.S. places a greater emphasis on the role of states and tribes in water protection. Lacking a consistent federal approach results in a patchwork of protections for waters that are now considered nonfederal, even when those waters impact large regional shared waters, such as the Great Lakes, the Mississippi River, the Colorado River, and Rio Grande, to name a few. This Article starts with a grounding in the scientific literature to explore the importance and vital functions of the waters that have lost federal jurisdiction. Using that as a springboard, we explain the most important legal decisions defining WOTUS to place Sackett v. EPA in context. We then discuss the divergent responses to the loss of federal jurisdiction by surveying responses at federal, tribal, and state levels of government. We show that many tribes opposed reducing federal protections leading up to Sackett, and after the decision, at the federal and state level, the battle continues over removing versus restoring regulatory protections. We observe that even in states where reducing regulatory control is favored, agreements have been forged around non-regulatory programs that fund wetland protections. We conclude that tribes and states have the power to shape protections for these vital waters regardless of federal jurisdiction, but with no federal regulatory backstop, the integrity of the Nation’s waters is threatened by this piecemeal approach
Wildfire Smoke and U.S. Law
Full text linkMany of the most wicked feedback effects of climate change relate to wildfire smoke. In some places the greenhouse gases poured into the atmosphere by wildfires exceed the reductions achieved by all efforts to fight climate change. At the same time, climate change is a major reason why wildfires are becoming more frequent and intense. Climate change and wildfires feed each other. However, environmental law and climate policy have paid relatively little attention to wildfires. The smoke from these fires—a major cause of illness and death, even thousands of miles from the blazes—is mostly unregulated. Efforts to impose liability on anyone for wildfires, except electric utilities, have gained little traction.
Part Two of this article discusses the global growth of wildfires; past trends and future projections; and the climate, health, and other impacts of wildfire smoke. Part Three traces the flip-flopping evolution of U.S. policy on extinguishing wildfires—a policy that in many ways made the problem worse. Part Four shows that the principal way to reduce wildfires is prescribed fires—the planned, small-scale setting of fires to reduce the fuel that causes much larger fires and more smoke. Part Five describes the impediments to prescribed fire, such as the implementation of certain environmental laws, relevant liability regimes, and the pattern of building housing in or near wildlands, which makes prescribed burns more difficult. Part Six discusses ways to defend against smoke. Part Seven concludes with recommendations for how the law can reduce wildfire smoke and its impacts
EMTALA and State Abortion Bans : Juggling a Power Struggle
Full text linkPhoto by Manny Becerra on Unsplash
Abstract
This paper argues that EMTALA and state laws governing abortion access do conflict and that federal law should preempt state law to the extent of the conflict. This paper’s purpose is to give a brief overview of the legal issues, identify practical issues and dangers associated with restrictive abortion laws, and contextualize preemption in the current political moment. The topic here is medical emergency – this paper does not address abortion for either nonmedical or nonemergency reasons. Lastly, this paper is designed to appeal to those in many disciplines, including bioethics, and provide a primer on the relevant legal concepts for those not practicing law. Much of it reads as an explainer addressing many intertwined laws and arguments.
Introduction
The Emergency Medical Treatment and Labor Act (EMTALA)[1] appears to conflict with restrictive state abortion laws. Generally, federal law preempts state law in matters where they conflict.[2] State abortion laws should be unenforceable when they conflict with EMTALA, i.e., specifically when abortions are needed to stabilize patients. We argue that EMTALA preempts restrictive state abortion laws when the medical intervention required to stabilize the patient is an abortion. In Moyle v. Idaho,[3] addressing the issue of whether EMTALA preempted the restrictive Idaho abortion law, the Supreme Court sent the case back to the lower courts, but the justices addressed many of the relevant issues: whether the laws conflict, preemption and the Supremacy Clause, the Spending Clause, and various interpretations of EMTALA and Idaho’s abortion law.[4] This paper’s purpose is to give a brief overview of the legal issues, identify practical issues and dangers associated with restrictive abortion laws, and contextualize preemption in the current political moment. The topic here is medical emergency – this paper does not address abortion for either nonmedical or nonemergency reasons. Lastly, this paper is designed to appeal to those in many disciplines, including bioethics, and provide a primer on the relevant legal concepts for those not practicing law. Much of it reads as an explainer addressing many intertwined laws and arguments.
What Does EMTALA Require?
EMTALA requires emergency departments to screen patients to determine whether they are experiencing a medical emergency. EMTALA defines medical emergency as follows, “a person is having a medical emergency if they are in labor or suffering from a condition that, without immediate attention, could be reasonably expected to place their health in serious jeopardy, seriously impair their bodily function, or cause serious dysfunction to an organ.”[5] Once screened, if an emergency medical condition is present, the hospital must stabilize, or if stabilization is not possible in the facility, transfer the patient. EMTALA caselaw covers what level and type of screening and stabilization meets the rigor of the law. When a hospital cannot stabilize the person, a timely transfer is imperative.
EMTALA requires hospitals to stabilize patients when “the absence of immediate medical attention could be reasonably expected to either result in a serious health risk, or seriously threaten bodily functions or organs.”[6] Stabilize is defined as providing treatment necessary “to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility, or . . .to deliver (including the placenta).”[7] Medical literature demonstrates that abortion may be necessary for life-threatening complications of pregnancy, including sepsis. Therefore, EMTALA requires hospitals to provide abortions if the physician determines that terminating the pregnancy is required to stabilize the patient.[8] Many scholars, lawyers, and healthcare providers take the position that abortion can be medically necessary and that EMTALA should ensure abortions to stabilize, providing a robust body of ethics, legal, and medical literature.[9]
Has Violating EMTALA Harmed Women?
Since restrictive state abortion laws became enforceable after Dobbs v. Jackson Women’s Health,[10] twelve states enacted (or began to enforce) severely restrictive abortion laws.[11] State policies vary concerning exceptions for saving the life of the mother and for pregnancies resulting from rape and incest.[12] Beyond the twelve states that nearly ban abortion, 15 states have restrictive laws prohibiting abortion after various gestational stages.[13] In Georgia, at least two women have died due to the restrictive law. One attempted a medical abortion at home and did not go to the hospital out of fear they would not treat her. The other “languished” in the hospital while doctors refused to perform dilation and curettage despite sepsis.[14] In Florida, women were denied abortion care and received risky substandard care. One was sent home with antibiotics after preterm premature rupture of membranes, i.e., after her “water broke” before she was full term.[15] She almost died, losing significant blood when the miscarriage occurred in her own bathroom.[16] Restrictive abortion laws have led to sub-standard care including inappropriate discharges resulting in severe outcomes including sepsis.[17] Infections grow quickly and the need for an abortion can become dire as sepsis is described as “a race against time.”[18]
There are many personal stories – yet it has been difficult to aggregate the numbers. ProPublica has tried to track how many women have died or suffered serious medical harm due to a lack of timely abortions during medical emergencies.[19] Yet states have not been properly tracking deaths and other physical harms due to delays in emergency abortion care.
Additionally, many women have driven themselves or been transferred and airlifted to neighboring states without restrictive laws.[20] In Moyle v. United States, Justice Kagan noted that, “To ensure appropriate medical care, the State’s largest provider of emergency services had to airlift pregnant women out of Idaho roughly every other week, compared to once in all of the prior year (when the injunction was in effect).”[21] However, when time is of the essence, stabilization must be local.[22] Delays in providing care can cause hemorrhage, loss of the uterus, infertility, or death.[23]
A 2022 study on the impact of Texas’s six-week abortion ban in two hospitals found significantly worse outcomes arose when all patients in preterm labor with at least one clinical indication for induction of labor were treated with state-required “expectant management” rather than induction. Expectant care or expectant management means waiting for the miscarriage to finish on its own and may involve bed rest, examination by ultrasound, and antibiotics. [24] Fifty-seven percent of those with ruptured membranes experienced “a serious maternal morbidity,” such as infection or hemorrhage.[25]
EMTALA requires abortion when its delay could damage the uterus and fallopian tubes.[26] Additional emergencies that may require emergency treatment include premature rupture of membranes, ectopic pregnancy, incomplete miscarriage,[27] sepsis, molar pregnancy, and pre-eclampsia.
States have ethical obligations to protect citizens experiencing emergencies and should avoid imposing barriers that prevent others from assisting. A floor based on constitutional or federal law had offered protection prior to Dobbs v. Jackson Women’s Health Organization.[28] Ethical obligations of doctors in emergencies may conflict with restrictive state laws arising after Dobbs.[29] Obligations of government to the people are thwarted by restrictive laws at the state level and by a failure of EMTALA enforcement or hard law[30] to clarify or codify a specific right to emergency abortions.
What is Preemption?
Preemption is the idea that a law of a higher authority will govern rather than a law of the lesser authority. It generally applies when laws conflict. The Constitution includes the Supremacy Clause, which states that the Constitution, federal laws, and treaties are the “supreme Law of the Land.”[31] The breadth of preemption law covers the ways in which the federal government, including administrative agencies, can set floors and ceilings for state laws, can take over certain subject matters (like the FDA governs approval of prescription drugs), and must prevail over conflicting state and local laws, including state constitutions. However, preemption is not absolute; it requires that the federal law is within Congress’ authority,[32] and cannot unconstitutionally infringe on states’ rights. The “presumption against preemption” holds that courts should not assume federal laws governing areas normally left to states, i.e., state police powers, do preempt.[33] Preemption cases look at the validity of the federal law rather than focusing on the state law exclusively.
What is the Basis for EMTALA's Preemption of State Law?
EMTALA contains a preemption clause which states, “The provisions of this section do not preempt any State or local law requirement, except to the extent that the requirement directly conflicts with a requirement of this section.”[34] Therefore, the law is not ambiguous; preemption is explicit rather than implied. EMTALA preempts state law when it conflicts with it.
EMTALA should govern as per the Supremacy Clause and the breadth and depth of Supreme Court cases on preemption. It seems to be a clear express preemption and yet somehow the Fifth Circuit concluded the opposite, prioritizing state law over federal, and issued an injunction against enforcement of EMTALA when such enforcement requires an abortion to stabilize the patient in violation of Texas’ abortion ban.[35]
Does the Preemption Clause Apply to Restrictive State Abortion Laws?
Impossibility Preemption. State and federal law are most obviously in conflict when “compliance with both federal and state regulations is a physical impossibility.” Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963). The paradigmatic case of “impossibility preemption” occurs when, as in the FLSA overtime example, a federal statute says “private entities must do X” and a state law says “private entities may not do X.” When that occurs, the Supremacy Clause plainly voids the state law.[36]
The state laws prohibit actions that EMTALA compels. Any other reading of the state laws and EMTALA would limit either EMTALA or the state law. If EMTALA were read to never require abortion, then there would be no conflict, but the ability of EMTALA to effectively require screening and stabilization would be undermined. State laws would endanger women seeking abortion care for things like sepsis.
Moyle v. United States Procedural History
Moyle v. United States is currently the best indication of where the Supreme Court stands on EMTALA and abortion. Idaho’s law bans abortion except to prevent death.[37] There is an exception for cases of rape and incest, and the law imposes a paper trail to validate those legal abortions. The US District Court issued an injunction against enforcement of the Idaho law when it conflicts with EMTALA. The Ninth Circuit Court of Appeals declined to stay the injunction. Then, the Supreme Court granted certiorari (before the Ninth Circuit heard the appeal), staying the injunction for months earlier in 2024. (This means from January to June Idaho was permitted to enforce its strict abortion law. To comply with EMTALA without violating Idaho’s criminal law, Idaho hospitals arranged airlifts for patients in need of abortions to stabilize them. In many cases, they did not provide abortions to those patients presenting with medical emergencies for which an abortion would be the standard of care and a stabilizing procedure.) The Supreme Court heard arguments but, at the end of June, decided that certiorari was improvidently granted. Therefore, the injunction against Idaho’s law was reinstated. Justice Jackson suggests that the Supreme Court will need to face the preemption issue at some point.[38] The disparity between the Fifth and Ninth Circuit courts indicates the need for resolution. In the meantime, the Department of Justice has dropped the Biden-era case against Idaho.[39]
Do EMTALA and Idaho Law Conflict? Does EMTALA Ever Require Abortion?
The Supreme Court decision that certiorari was improvidently granted in the Idaho case touched on the relevant preemption issues.
Justice Kagan wrote a statutory analysis, joined by Justice Jackson and Justice Sotomayor. Idaho argues that EMTALA never calls on doctors to violate state laws. Kagan notes that Idaho’s argument is unlikely to succeed on the merits given that EMTALA and the Idaho law conflict:
EMTALA requires a Medicare-funded hospital to offer an abortion when needed to stabilize a medical condition that seriously threatens a pregnant woman’s life or health. See 42 U. S. C. §1395dd. Idaho allows abortions only when “necessary to prevent” a pregnant woman’s “death.” Idaho Code Ann. §18–622(2)(a)(i) (Supp. 2023).[40]
Kagan responds to Justice Alito’s position that EMTALA never requires abortion. Justice Kagan’s analysis notes the importance of stabilizing patients and preventing loss of fertility and other serious harms. (Justice Jackson wrote on her own as well, suggesting the Court keep the case rather than withdraw its grant of certiorari.)
Do Other Federal Laws or Recent Amendments Alter or Limit EMTALA's Requirements?
Justice Alito’s dissent, joined by Justices Thomas and Gorsuch, suggests a reading of EMTALA that does not require abortion to stabilize women even if the woman would face grave harm or death. He suggests the Hyde Amendment indicates EMTALA was not meant to require abortion. The Hyde Amendment is a 1977 law that prohibits federal funding for abortion except when the pregnant person is endangered by the pregnancy or when the pregnancy is the result of rape or incest.[41] He also notes the word abortion is not in the law – this implies he would expect all emergency procedures from appendectomy to IV antibiotics to be listed. His interpretation is a deviation from common sense and legal interpretations.
Alito refers to EMTALA’s provisions for the unborn. EMTALA was revised to ensure that women could seek emergency care for fetal distress even if there is not a risk to the pregnant women themselves. As Kagan noted, this is not a “tacit withdrawal” of the otherwise well accepted requirement to treat women in need of abortions to avoid serious harm or bodily/organ injury. The references to the unborn child extend the rights of the pregnant woman to seek care, allowing women to protect the fetus and seek medical care on its behalf. Other references to the unborn similarly extend consideration to the fetus in decisions to facilitate transfers of women in labor. While considering the fetus is often the priority of the woman seeking care, “dual stabilization” is not always possible and arguably not always an appropriate goal.[42]
Might EMTALA Violate the Spending Clause?
Justice Alito further entertains claims that the Spending Clause should prevent EMTALA from placing binding conditions on Idaho as Idaho was not a party to it. He uses the language of contracts about the federal law. He suggests that EMTALA has ambiguity in violation of the Spending Clause. He complicates his assertions by discussing the right to refuse and distinguishing it from the right to demand care that violates the law. EMTALA itself creates an obligation to provide stabilizing care – that patients may refuse or demand care is not relevant to the statute.
Justice Barrett’s concurrence, joined by Justices Kavanaugh and Roberts, also suggests an open issue about whether EMTALA can preempt state law as it imposes on private businesses. She is open to Alito’s view of the Spending Clause. Questioning the very validity of the federal law rather than focusing solely on the state law in question is a way of approaching the preemption issue. Unconstitutional federal laws should not preempt state laws.[43] If EMTALA’s obligations imposed on states are invalid under the Spending Clause because states were “not party” to the agreement between hospitals that accept Medicare and the federal government, then all other provisions afforded by EMTALA could be invalidated as well. This would greatly impact the ability of the public to obtain emergency medical care. It is noteworthy that six justices seem to entertain the idea that EMTALA potentially violates the Spending Clause.
Is the State Law Ambiguous?
Justice Barrett’s concurrence suggests that a broad reading of Idaho’s law does not require death to be imminent. Rather the law allows a liberal interpretation of performing an abortion to prevent death. Her reading of “abortion to prevent the death of the mother” seems to interpret Idaho’s law to mean that if a doctor were to think death would eventually result there is wide discretion to go ahead with an abortion. The number of airlifts out of Idaho suggests doctors do not feel so free to interpret the criminal law loosely.
Idaho could clarify its law if it does intend a loose interpretation. Amending the law, enacting additional laws, or through the state court system, Idaho could clarify that emergency abortions are acceptable and that the “saving a life” exception does not require waiting until the patient is on the brink of death or until a fetal heartbeat or cardiac rhythm stops.
Executive Actions
After Dobbs v. Jackson Women’s Health shifted abortion lawmaking to the states,[44] President Biden signed an executive order that noted the intention to take “action to protect healthcare service delivery and promote access to critical reproductive healthcare services, including abortion.”[45] In July 2022, the Department of Health and Human Services (HHS) issued a guidance reiterating the obligation to continue to treat pregnant patients or patients experiencing pregnancy loss.[46] In 2023, HHS issued a reminder letter after research found violations in Missouri and Kansas.[47] In 2024, following the Supreme Court’s opinions removing its grant of certiorari in Moyle v. Idaho, the White House reiterated its plans to continue EMTALA enforcement, noting that EMTALA may require abortion in certain circumstances.[48] CMS, HHS, and the White House have expressed intention to promote enforcement of EMTALA. So far, the Trump administration has left EMTALA intact. Yet, as noted, the Department of Justice is not pursuing ongoing EMTALA cases concerning emergency abortion and restrictive state laws.
Preemption and Politics
The political moment is giving rise to questions about federalism and preemption when state and federal laws clash. The current administration is characterized by a mission to reduce executive agencies’ size and scope. The “DOGE” organization threatens to eliminate the bureaucracy, a sign that letting state law stand when it conflicts with federal law may be the favored position.
However, the Trump administration may be inconsistent about preemption for various reasons. A president wanting to invoke presidential power may use federal law to control states. And a president prioritizing any particular legislative agenda item may ignore preemption when an existing federal law blocks a state law that is consistent with his agenda.
While it is doubtful that a Trump executive action would have the tone and substance of Bidens’, it is possible that having already extracted the votes he needed to be elected, Trump has no reason to weigh in on abortion at all. It is unclear, but not necessarily unlikely, that a Trump HHS would continue to issue letters enforcing EMTALA. Robert F. Kennedy, Jr. was pro-choice and may be unlikely to change his stance as he acclimates to his role as secretary of HHS.
Should the Definition of Abortion be Universal and Exclusive?
Several states have changed the definition of abortion to exclude the removal of embryo/fetus for ectopic pregnancy, miscarriage, or molar pregnancy or have codified exceptions to their restrictive laws.[49] For example, a 2023 Texas bill provides an affirmative defense for ectopic pregnancy and premature rupture of membranes.[50] Tennessee passed a similar law allowing abortion for ectopic pregnancies and miscarriage management. There is no evidence that states wish to treat ectopic pregnancies as viable ones and prevent standard-of-care medical treatment. The lack of clarity around miscarriage care[51] leads to confusion. States have placed blame on doctors for misinterpreting the law and failing to provide emergency abortions.[52]
A definition of abortion that excludes nonviable or low survival chance pregnancies is seen as a creative way to avoid complying with strict laws. While a common sense definition of abortion could exclude evacuating a fetus without a heartbeat, it would be difficult to narrow it enough to exclude removing a fetus that has a heartbeat but is not expected to survive post-birth or until full term or will not survive due to ruptured membranes or genetic anomalies.
Without clarity and a universal definition of abortion across law and medicine and among states, doctors have seemingly “played it safe” by risking women’s lives rather than risking prosecution.
Why Do Doctors Go Along?
A fear of prosecution, having to defend oneself in court, a guilty verdict, incarceration, and loss of license are at the root of denying or delaying abortion in emergencies. In some instances, physicians who were willing to provide necessary abortions were prevented from doing so by hospital lawyers.[53] The uncertainty about definitions and exceptions leads to a fear of legal action.
Hos
The Magical Slickness of the Myth of Black Oil, Movement Suite
No full textThe Magical Slickness of the Myth of Black Oil, Movement Suite explores the subversive and disruptive slick nature of a concept I am developing called chaos force. The three-piece Movement Suite consists of a short written poetic manifesto contextualizing the current of chaos force as it exists in black sonic temporality as the first movement, then transitioning into a recorded two movement sound piece that spans 20 min.
I have been exploring mythbuilding & worldbuilding, memory, rhythmanalysis, and vocal & movement-based improvisation as a generative tool to harness and disperse a concept which I call chaos force. Chaos force is a current which sits between two polarized magnetic forces and propels matter outside of its orbit, into the void, towards endless potentiality. This current can then be transformed into subversive material which problematizes, interrogates, and disrupts duality and oppositionality. Within this black sonic temporal performance, I use amorphous structure and improvisation to imagine anti-colonial post-modern sonic futures integrated into worldbuilding, social refusal, and political fugitivity.
The sound piece is loosely devised for piano, voice, and synth, with the addition of horn and percussion as the third instigating force. This work aims to actively create, swallow, and destroy structure in real-time using both contradiction in rhythm and harmony, counter-force, and spontaneity. Spirit inhabits this sonic world and speaks in tongue–devouring at its own pleasure and desire. Its landscape is both a love poem for the black imagination, a travel through planetary orbits, and sex with the slickness of oil.
Notes on Contributor
Jordan Deal (they/them) is a Philadelphia-based multidisciplinary artist whose work defies conventional boundaries. Using their body as a conduit, Deal navigates the intersections of performance, sound, and film to explore the forces that shape socio-political structures and mythologies.
Deal has presented performance work internationally, such as at Radialsystem (Berlin) as part of CTM Festival, Cafe OTO (London), ZDB (Lisbon), Performing Arts Forum (France), Performance Mix Festival (NYC), Judson Memorial Church (NYC), and Icebox Project Space (Philadelphia), amongst others. They have exhibited sculptural and sonic installations throughout Philadelphia and New York and have recently been selected as a 2023-2024 Artistic Fellow at the Leslie-Lohman Museum of Art. They are currently a 2024 recipient of the MAPFund Grant.
Deal recently released their new full LP titled Seas of Triple Consciousness with London-based record label Horn of Plenty Records this past September.
Bridging Worlds, Healing Scars: A Student-Teacher Journey Toward Climate-Just Education
Full text linkOur paper is a collaborative autoethnography exploring the intersection of environmental crises, personal experiences, and education through the narratives of two educators, Maha Shoaib and Sarah Kistner. Reflecting on the 2005 earthquake in Pakistan and the 2021 Texas Freeze, we explore how systemic inequities and inadequate preparedness exacerbate the impacts of disasters on marginalized communities, disproportionately disrupting educational systems. We argue for climate-just education as a restorative and healing approach, addressing inequities at the school, community, and individual levels. Climate-just education proposes a holistic framework for trauma-informed and climate-responsive education, emphasizing preparedness, mutual support, and the creation of open spaces for teachers and students to share, heal, and rebuild. At the individual level, practices such as the Butterfly Hug Technique, Emotional Freedom Technique (EFT), and Yoga Nidra are presented as tools for fostering self-healing and mutual healing among students and teachers. Concluding with a vision for climate-just education, we advocate for reimagining schools as transformative spaces that empower communities to adapt to and recover from environmental crises while fostering emotional resilience, equity, and sustainability
“哈哈(haha)” in WeChat Chinese Conversations
Full text linkFew studies have considered the micro-analysis of written laughter in the digital world in its sequential context (beyond frequency and distribution). The present study fills this gap by examining “transcribed” laughter “哈哈(haha)” in Chinese conversations on WeChat from a conversation analytic perspective. A line-by-line analysis was conducted to identify how speakers use “哈哈(haha)” in different sequences to perform different social actions. This study has shown that the sequential environments of the laughter “哈哈(haha)” in WeChat Chinese conversations can be classified into three types: TCU-initial “哈哈(haha),” TCU-end “哈哈(haha)” and stand-alone “哈哈(haha).” These three types of “哈哈(haha)” perform the actions of mitigating disalignment, managing failure or misconduct, and displaying minimal engagement, respectively. The findings expand the current conversation analysis literature on laughter by describing the use of written laughter in a previously unexamined context and help both native and non-native speakers better navigate informal Chinese digital communication and avoid misunderstandings. 
The “Slightly Smiling Face” Emoji in WeChat: A Conversation Analytic Investigation
Full text linkThis study investigates the interactional functions of the “Slightly Smiling Face” (SSF) emoji in Chinese WeChat conversations through the lens of Conversation Analysis (CA). Drawing on 50 naturally occurring chat excerpts involving 12 participants across various relationship types, the study identifies three core uses of the SSF emoji: (1) signaling sequence-closing, (2) mitigating dispreferred actions, and (3) conveying disaffiliation without explicit disagreement. These functions parallel some of the roles traditionally fulfilled by nonverbal cues in face-to-face interactions, such as smiles or laughter tokens, revealing how digital communication retools physical gestures through symbolic surrogates. While prior research on emoji use often relies on statistical or multimodal analysis, this paper offers a context-sensitive examination that underscores how a single emoji can accomplish varied pragmatic work depending on sequential positioning and interactional context. By centering on a culturally embedded and pragmatically ambiguous emoji, the study contributes to the understanding of digital CA and broadens the scope of emoji research beyond Western platforms.
When Canons Can Corrupt: Clear Statement Rules in Administrative Law
Full text linkAdministrative law is emerging as a major focus of the Roberts Court’s efforts to reshape American society. And the primary vehicle for the Court’s transformation of administrative law is the clear statement rule, which provides that federal agencies must point to clear language in their enabling statutes when they address issues that trigger the clear statement rules. In administrative law, those issues include federalism, major questions, and property rights. The demise of the Chevron doctrine is unlikely to disturb this trend, because the normative clear statement rules examined in this article go beyond nondeference to agency statutory interpretation to limit Congress’ power to enact statutes containing broad language empowering agencies to adapt to changing circumstances.
This article explores the virtues and disadvantages of aggressive judicial deployment of clear statement rules and concludes that the considerable disadvantages outweigh the modest virtues. The clear statement rules have no textual basis in the Constitution or statute. They are instead built on norms that are putatively located somewhere in the Constitution, but in fact are mirages that appear concrete from a distance, yet disintegrate on close inspection. They are therefore easily manipulable to achieve policy outcomes preferred by the judges applying them. At the same time, they unjustifiably limit Congress’ power to use broad language in statutes to allow implementing agencies to adapt to changing conditions, technological advances, and attempts by regulated entities to circumvent implementing regulations. Furthermore, the high bar for clarity that the Supreme Court has established and the vanishingly small likelihood that Congress will react to a judicial remand with legislation specifically empowering the agency to take the judicially rejected action ensures that clear statement rules are in reality weapons in a broader assault on the administrative state. As such, they are undermining the legitimacy of judicial review.
The article briefly probes possible responses to the judicial aggrandizement represented by clear statement rules in administrative law. Among other things, Congress could amend the Administrative Procedure Act to prescribe a standard for judicial review of agency statutory interpretation that precludes judicial use of clear statement rules. Because it is highly unlikely that proponents of protective federal regulation will persuade Congress to act in an era of extreme political polarization, however, the article concludes that the best way for the Court to restore the legitimacy of judicial review is to approach the task of statutory interpretation with greater humility and less enthusiasm for advancing a libertarian agenda
Mitigating Damage from Natural Disasters: Requiring the Retrofitting of Pre-Existing Buildings to Meet Safety Standards
Full text linkOver the last several decades, the frequency and severity of natural disasters and extreme weather events have been increasing due to climate change. As a result, these extreme weather events have had, OR are having, a greater effect on communities and infrastructure than before. Although there are ways of constructing buildings to mitigate damage and economic loss from natural disasters, many jurisdictions have not adopted these standards or have not implemented them in all respects. Following natural disasters, state and local governments often respond by updating their building codes to provide some level of resiliency for the next natural disaster. However, the codes often only require new buildings to meet these construction standards. Pre-existing buildings are often left untouched, even though in many cases they could be retrofitted to be more resistant to natural hazards as well. This especially impacts low-income and minority communities, as they are already more affected by natural disasters and often do not have the capability to move out of high-risk areas and into buildings that fit the new, resilient standards. This Note discusses the policy and legislative changes that can be made in order to require pre-existing buildings to meet the updated building code standards and become hazard-resistant
Regulation by Indexation? Andrew Winden
Full text linkIf index fund asset managers are the new “emperors” of Wall Street, are index providers the power behind the throne? The financial press has called the indexers “kingmakers” and suggested they may soon “rule the world.” If so, why do they seem to have more influence over sovereign governments than corporate executives? Is it appropriate to think of indexers as private regulators? If so, what is the source of their regulatory power? This article answers these questions with the first theoretical model and empirical review assessing the regulatory capacity of global equity index providers.
I propose three regulatory roles through which indexers might deliver incentives or sanctions sufficient to exercise regulatory power: (1) subsidizers, delivering financial benefits to parties who follow their rules for index inclusion, (2) certifiers, delivering reputational benefits to parties who follow their rules, and (3) gatekeepers, delivering access to benefits (e.g., capital, licenses, markets) that are otherwise unavailable. I assess the influence of these regulatory channels on two groups—corporate managers, considering whether indexers can regulate corporate governance and sustainability choices, and sovereign governments, considering whether indexers can influence sovereign choices about financial market rules.
After establishing the theoretical frame, I review the empirical literature to assess the theoretical roles in three contexts: (1) corporate governance restrictions on inclusion in benchmark equity indices, (2) eligibility criteria for inclusion in ESG indices and (3) market requirements for inclusion in emerging markets indices. Empirical studies suggest that the subsidizer role is ineffective, the certifier role may provide sufficient incentives to meet eligibility criteria in some contexts if the costs are not too high, and the gatekeeper role can be very effective, even with high costs, but only if the indexers hold the keys to sufficiently valuable, otherwise unavailable assets