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Temporary Nuclear Waste Siting is a Major Problem But Not a Major Question
Get PDFMitigating global warming requires robust change in the country’s energy policy. One area ripe for such change is nuclear waste storage, which has long confounded the federal government. The Nuclear Regulatory Commission (NRC) seems to have found a solution. It empowered private industry. But it might have run into a problem: the major questions doctrine. Though the major questions doctrine can indeed operate to constrain overzealous agencies, the NRC has acted within its authority, and private industry—by virtue of its Executive-branch grant of authority—should be allowed to help
A Seat at Whose Table? Analyzing Detroit’s Community Benefit Ordinance as a Tool for Environmental Justice
Get PDFThe Environmental Protection Agency defines environmental justice as the “just treatment and meaningful involvement” of all people in the decisionmaking that affects the environment and human health. Since the origins of the modern American environmental justice movement in the 1980s, activists have emphasized the importance of self-determination. Environmental justice requires that decision making processes center the voices of the individuals impacted by decisions made about the distributions of environmental assets and harms. There is a significant challenge, however, in designing community engagement practices that meaningfully involve community members. Since the 1990s, community benefits agreements have been heralded as an effective tool of community and grassroots control over development projects. In 2016, Detroit became the first city in the country to adopt an ordinance mandating the use of community benefits agreements in qualifying developments.
This Note endeavors to analyze Detroit’s community benefits ordinance as a tool for achieving environmental justice by examining where the ordinance succeeds in empowering community control over environmental decision making and falls short of this potential. Examining Detroit’s community benefits ordinance in the context of the larger environmental justice movement provides a rich opportunity to consider what communities stand to gain, and lose, when public participation is funneled through formalized legal processes, and what avenues environmental justice activists can explore to ensure that community members are meaningfully involved in decisions that intimately impact them
Flexibility and Conversions in New York City\u27s Housing Stock: Building for an Era of Rapid Change
Get PDFPost-COVID, New York City faces reduced demand for commercial space in its central business districts, even as residential demand is resurgent. Just as in past eras of New York’s history, conversion of commercial spaces into housing may help the city adapt to these new market conditions and provide an additional pathway for producing badly needed housing. If 10 percent of office and hotel spaces were converted to residential use, around 75,000 homes would be created, concentrated in Midtown Manhattan. However, there are considerable obstacles to such conversions, including a slew of regulatory barriers. Allowing greater flexibility in building uses—including by reducing the distinction between short- and long-term use and rethinking the separation of uses embedded in the city’s zoning code—could help facilitate these shifts
Report of the International Commission of Human Rights Experts on Ethiopia
Get PDFIn the present report, submitted pursuant to Human Rights Council resolution 51/27, the International Commission of Human Rights Experts on Ethiopia provides an overview of the human rights situation in Ethiopia. It identifies grave and systematic violations of international law and crimes committed in Tigray, as well as in Amhara, Afar and Oromia. Violations include mass killings, rape, starvation, forced displacement and arbitrary detention. The conflict in Tigray has not ended, with Eritrean troops and Amhara militias engaging in ongoing violations. Past and current violations and abuses in the four regions mentioned above demand further investigation. The Government of Ethiopia has failed to effectively investigate violations and abuses and has initiated a flawed transitional justice consultation process. Ethiopia has sought to evade international scrutiny through the creation of domestic mechanisms ostensibly to fight impunity. The Commission recommends a range of measures to end current violations and abuses and promote serious transitional justice
Judges for Sale: The Effect of Campaign Contributions on State Criminal Courts
No full textDo campaign contributions impact democratic processes? Using donation data from Texas, we show that criminal defense attorneys who contribute to a district judge’s electoral campaign are preferentially assigned by that judge to indigent defense cases, i.e., public contracts in which the state pays private attorneys to represent poor defendants.
We estimate that attorney donors receive twice as many cases as non-donors during the month of their campaign contribution. Nearly two-thirds of this increase is explained by the contribution itself, with the remainder attributable to shared preferences within attorney-judge pairs, such as those based on professional, ideological, political, or personal ties.
Defendants assigned to donor attorneys also fare worse in cases resolved in the month of contribution, with fewer cases dismissed and more defendants convicted and incarcerated. Further evidence suggests recipient judges close cases to cash out their attorney benefactors, at the expense of defendants. Our results provide some of the strongest causal evidence to date on the corrosive potential of campaign donations, including their impact on the right to counsel as guaranteed by the U.S. Constitution
Interpreting the Administrative Procedure Act: A Literature Review
No full textThe modern administrative state has changed substantially since Congress enacted the Administrative Procedure Act (APA) in 1946. Yet Congress has done little to modernize the APA in those intervening seventy-seven years. That does not mean the APA has remained unchanged. Federal courts have substantially refashioned the APA’s requirements for administrative procedure and judicial review of agency action. Perhaps unsurprisingly, calls to return to either the statutory text or the original meaning (or both) have intensified in recent years. “APA originalism” projects abound.
As part of the Notre Dame Law Review’s Symposium on the History of the Administrative Procedure Act and Judicial Review, this Essay provides a literature review of the competing methodologies for interpreting the APA: textualism, originalism, purposivism (or pragmatism), and a more dynamic or living approach that encourages administrative common law. This Essay concludes by embracing a middle-ground approach: The Supreme Court (and lower courts) should answer open statutory questions based on the text, structure, context, and original understanding of the APA. But when it comes to interpretive questions courts have already answered, the pull of statutory stare decisis should be quite strong, and reform to those precedents should be left largely to Congress. This approach best advances administrative law’s rule-of-law values such as predictability, reliance, stability, and the separation of powers
Reforming Shareholder Claims in ISDS
No full textISDS stands alone in empowering shareholders to bring claims for reflective loss (SRL) – meaning claims over harms allegedly inflicted upon the company, but which somehow affect share value. National systems of corporate law and public international law regimes generally bar SRL claims for strong policy reasons bearing on the efficiency and fairness of the corporate form. Though not necessitated by treaty text, nor beneficial in policy terms, ISDS tribunals nevertheless allow shareholders broad and regular access to seek relief for reflective loss. The availability of SRL claims in ISDS ultimately harms States and investors alike, imposing surprise ex post costs on States and various corporate stakeholders (particularly creditors), and creating perverse incentives likely to raise the cost of doing business ex ante. The Article sets out the harms caused by allowing ISDS claims for reflective loss, as well as the possible justifications for allowing such claims in this specific context. Concluding that any potential benefits of SRL can be realized through less invasive means, we then canvas a number of plausible reform options, with an eye to their trade-offs
Public Engagement, Equity, and Executive Order 14,094.
No full textExecutive Order 14,094 ( the Order ), signed by President Biden in April, 2023, breaks ground to make regulatory decisionmaking more equitable and inclusive, continuing a theme the Biden Presidency began with Executive Order 13,985, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government. Agencies must, of course, hear from those who are regulated, but genuinely equitable decisionmaking also requires agencies to hear and engage the concerns of affected individuals and communities, including underserved communities. This recognizes that many Americans have a distinct and substantial interest in the benefits promised by legislatively created regulatory programs, whether those include safe food supply, clean air and drinking water, safe and effective drugs, or safe workplaces. The Order accordingly contains several requirements aimed at making agency engagement with the public, including regulatory beneficiaries, more inclusive and equitable. As with all the regulatory review executive orders, however, whether Executive Order 14,094 actually results in meaningful progress towards these goals will depend on agency commitment and capacity and that of the Office of Management and Budget\u27s Office oflnformation and Regulatory Analysis (OIRA) as it guides and monitors the agencies
Could Moore Have Been Mooted?
No full textOn December 5 the Supreme Court heard oral arguments in Moore, the first constitutional challenge to an income tax provision to come before the Court in more than a century. The issue is whether the word income in the 16th Amendment includes a requirement that the income be realized, as implied by some statements in the previous constitutional challenge to an income tax provision considered by the Court, Eisner v. Macomber
Hierarchy, Race & Gender in Legal Scholarly Networks
No full textA potent myth of legal academic scholarship is that it is mostly meritocratic and mostly solitary. Reality is more complicated. In this Article, we plumb the networks of knowledge co-production in legal academia by analyzing the star footnotes that appear at the beginning of most law review articles. Acknowledgments paint a rich picture of both the currency of scholarly credit and the relationships among scholars. Building on others’ prior work characterizing the potent impact of hierarchy, race, and gender in legal academia more generally, we examine the patterns of scholarly networks and probe the effects of those factors. The landscape we illustrate is depressingly unsurprising in basic contours but awash in details. Hierarchy, race, and gender all have substantial effects on who gets acknowledged and how, what networks of knowledge co-production get formed, and who is helped on their path through the legal academic world