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The Necessary and Proper Clause and the Law of Administration
No full textThe Necessary and Proper Clause authorizes Congress to establish and shape the administrative state. But the Necessary and Proper Clause is rarely cited in the relevant Supreme Court opinions or litigant briefs. This is a mistake. In several of the Court’s recent prominent cases, the Necessary and Proper Clause’s meaning and effect could have been dispositive. This Article makes that case. It demonstrates that there are plausible arguments against the Supreme Court’s removal and Seventh Amendment jurisprudence as they relate to public administration, though this Article takes no strong position on those arguments. The Court recently and correctly held, on the other hand, that the Consumer Financial Protection Bureau’s funding structure does not violate the Appropriations Clause. But even if Article II’s Vesting Clause, the Seventh Amendment, and the Appropriations Clause do not get in the way of Congress’s relevant statutes, it does not follow that those statutes are constitutional under the Necessary and Proper Clause. This Article does not seek to resolve definitively how the Court’s recent cases should have come out under the Necessary and Proper Clause, but rather seeks to center the Necessary and Proper Clause as an important source of authority—and limits—on Congress’s power to structure administration. It further offers a framework in which the Court’s emphasis on history and tradition might be both relevant and more disciplined
Race, Gender, and Ordinary Peace: Assessing the Women, Peace, and Security Agenda through a Coloniality Lens
No full textPollution Does Not [sic] Discriminate : Louisiana v. EPA, Disparate Impact, and the Fight for Environmental Justice in a Hostile Climate
No full textHuman-induced climate change hurts people. Environmental burdens impact a person’s ability to live freely, in good health, and with loved ones. And in the United States, people in positions of political authority and decision-making—who are predominantly white and high-income—use the legal system to push environmental harms disproportionately onto low-income, Black, Indigenous, People of Color (BIPOC) communities. This has occurred for centuries and continues in the present. A basic sense of justice makes the following conclusion easy to reach: skin color, zip code, and pocketbook should not determine whether someone enjoys a clean and healthful environment.
For plaintiffs seeking relief from environmental injustice, a critical tool is the U.S. Environmental Protection Agency’s (EPA) Title VI regulations (the Regulations), which prohibit EPA funding recipients from taking actions that have a discriminatory effect, or “disparate impact,” on the basis of race.
However, legal challenges and changing political conditions make the Regulations’ future tenuous. In Louisiana v. EPA (W.D. La. 2024), for the first time since the Regulations were promulgated in 1973, a federal court held that the Regulations’ disparate impact requirements are invalid and issued an injunction barring the EPA from enforcing them. The second Trump administration is also taking steps to eliminate disparate-impact requirements and cease civil rights enforcement.
This Note examines these emergent challenges to the EPA’s Title VI disparate impact regulations. It considers state-level measures for combatting environmental racism amidst a federal landscape that is increasingly hostile towards race-based equity measures. Using the Biden administration’s Justice40 Initiative as a case study, the Note analyzes arguments for and against race-neutral environmental justice policies, providing novel data analysis on the correlation between Justice40’s race-neutral environmental burden metrics and racial demography.
Ultimately, I maintain that the decision to pursue race-based or race-neutral environmental justice laws must be made on a state-by-state basis, in forums led by BIPOC communities. This Note aims to assist state legislators, policymakers, organizers, and advocates. It identifies a recent legal development threatening environmental justice efforts; analyzes relevant factual, legal, and policy considerations; and offers empirical analysis to inform strategy
From the Silver Screen to the Phone Screen: The Coogan Act’s Struggle to Keep Pace with the Evolution of Social Media
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Beyond the Editorial Analogy: First Amendment Protections for Platform Content Moderation After Moddy v. NetChoice
Full text linkThis Article examines the Supreme Court’s 2024 decision in Moody v. NetChoice and its implications for social media platform regulation. In Moody, which addressed state laws requiring platforms to host certain content, the Court issued a complex set of opinions that left the scope of platforms’ First Amendment rights uncertain. On the procedural question of how such laws may be challenged, the Court provided a clear holding: it rejected facial challenges to broad content-moderation laws, instead requiring case-by-case analysis of how specific regulations affect different platform features—a shift that undermines the tech industry’s longstanding litigation strategy. But on the substantive question of whether such laws are constitutional, the path forward remains murky. While Justice Kagan’s majority opinion articulated a framework favoring robust protection for content moderation, five Justices, across three separate concurrences, expressed skepticism toward broad editorial rights for platforms, and much of the majority\u27s First Amendment discussion may ultimately prove to be nonbinding dicta. Given this uncertainty, we argue that courts applying Moody should move beyond abstract questions about whether platforms qualify as “editors” and instead examine how specific regulations concretely affect the speech interests of platforms, users, and society. Building on this framework, we analyze the specific features that made the Texas and Florida laws at issue in the case constitutionally problematic and propose alternative regulatory approaches—such as content-neutral design requirements, procedural protections, and narrowly targeted access rights—that could withstand First Amendment scrutiny while advancing legitimate governmental interests in ensuring broad public access to the digital public sphere
Abuse of Power in the Workplace: The New Gender Discrimination Claims
No full textThis article draws on our book, Fair Shake: Women and the Fight to Build a Just Economy, to show how the fight for gender equality has changed. Antidiscrimination laws took hold during an era of relative economic equality; the fight for gender equality was a fight to gain access to the rights of white men. Today’s economy creates much greater inequality and reserves the greatest rewards for a much smaller group, again predominately white and male, who can defy the rules and get away with it. In such contexts, anti-discrimination law premised on a fight for equality can provide only limited remedies and cannot be the principal line of offense. These workplaces, while they increase gender disparities, do not act to promote men over women in the distinct identity-based group terms that Title VII was designed to combat. Instead, they select for certain types of managers who are both more likely to be male and to exploit all workers where it serves the purposes of those at the top. Accordingly, the fight for gender equity cannot be cast in terms of an equal right to ascend to the ranks of those oppressing others. Instead, it becomes a fight to confront the abuse of power that shortchanges women in order to enrich the few. The most effective solutions to tame abuses of power incorporate new bases of liability and new litigation tactics to address the abuses. The most lawless workplaces both exacerbate gender disparities and exacerbate sexual harassment, retaliation, and unscrupulous business practices. The emerging strategies, which the best lawyers have already begun to employ, recognize that abuse of power, once made visible, is hard to justify and becomes a source of employer vulnerability rather than strength. This article argues that the fight for gender equality today must take place alongside a fight to tame corrupt and abusive workplaces. This article first shows how the abuse of power in today’s workplaces is different from wholesale exclusion of protected groups. The next section examines the limits of conventional sex discrimination claims in promoting gender parity because they cannot challenge the underlying abuses of power that structure workplaces or affect the political environment that allows such abuses to continue. The third section points to new tactics that have had some success in creating accountability, and the final section provides larger structural suggestions on how to move forward
Water Flowing Down Wall Street
No full textWater scarcity is a perennial problem with dire consequences for the United States and governments around the world. A lack of adequate water resources is a systematic cause of environmental harm, economic damage, and societal division. Climate change has exacerbated these problems making water even more valuable and essential. Financial actors have turned water into the new oil. These large financial actors profiteer from buying and selling water without any interest in its actual use as an input of production. Instead, they typically seek to hold these rights until dire situations, like droughts and fires, cause temporary, but large, spikes in the value of water. Speculation may not only drive water prices up, but it can also lead to greater concentrations of market power. Such concentrated control raises serious concerns about the rights of governments and consumers to essential resources This Article argues that current water law is ill-equipped to respond to the pathologies of financialized water. This Article is the first to call attention to these new actors by diagnosing the problems, illustrating them with current case studies from different jurisdictions, and suggesting principled avenues for reform of water regimes to rein in speculation and concentration. The reforms proposed in this Article aim to ensure that water management is efficient, fair, and environmentally friendly. In particular, this Article argues that jurisdictions should consider the role of communities in transactions, reinforce institutional control and antitrust measures in water markets, and limit the amount of water rights any single actor can hold. The Article also draws lessons about how other scarce resources at risk of financialization can be better managed
Catching Nutients in a Net: Collective Action, Institutional Impediments, and the Mississippi River Watershed
No full textThousands of local governments in the Mississippi River watershed possess regulatory land use authority. From a narrow law and economics standpoint, when these entities extract from, add to, or pollute the watershed, it may appear as a classic tragedy of the commons problem. The tragedy sounds something like this: local governments act “rationally” to avoid regulating in a way that reduces pollution in the waterway because such regulation would increase costs. Further, local governments avoid paying the costs associated with treating or reducing the level of contaminants in the water before ushering them downstream. While this analysis might partially explain local actions, it ignores the existing federal and state regulatory framework in which local governments operate. Local governments’ ability to act in “irrational” ways to protect the Mississippi River watershed is significantly constrained by federal and state regulation. This Article begins with an overview of the Mississippi River watershed, highlighting its natural resources, increased flooding, and elevated nutrient pollution (such as nitrates) stemming from agricultural runoff. Then, it delves into the role of local governments in the watershed, focusing on their utilization of the resources to supply essential services such as potable water. The Article next examines the federal and state regulations that unintentionally drive local governments toward contributing to a tragedy of the commons, resulting in exacerbating flooding and damaging nutrient overloads within the watershed. This part of the Article scrutinizes the existing jurisprudence governing local governments and the watershed. Considering the Supreme Court’s decisions in West Virginia v. EPA and Sackett v. EPA, which significantly narrowed the scope of federal protection of the environment, and in particular wetland protection, local governments are increasingly tasked with taking proactive measures to address environmental concerns. The Article concludes by highlighting how local governments can and have effectively bypassed preemption concerns to serve as the primary actor protecting, rehabilitating, and restoring watersheds from nutrient pollution, notwithstanding federal and state legal constraints. The Article provides numerous examples of local land use laws that can be used to safeguard watersheds and protect the health of all species