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The Clean Water Act and Avoidance Creep
No full textIn Sackett v. EPA, the Supreme Court set out a test for the Clean Water Act’s jurisdiction over wetlands. The Act, the Court held, protects only those wetlands that have a continuous surface connection to relatively permanent bodies of water like streams, rivers, and lakes. If the connection lies below the surface, or is at the surface but discontinuous, the wetlands are presumed to fall outside the Act’s protections. The ruling, which abruptly curtailed how each administration since the 1970s had understood the Clean Water Act’s jurisdiction, has generated persuasive criticism from environmental scholars. In this Essay, prepared for the Minnesota Law Review Symposium, I suggest that the Sackett opinion is an example of a trend in recent Supreme Court cases called constitutional avoidance creep. As scholars have observed outside the environmental law context, an overly expansive reliance on constitutional avoidance principles can lead courts to read statutes in implausible ways. Later decisions that interpret the earlier ones then magnify the problem, getting further away from the statutory language’s ordinary meaning. Here, the Court’s use of an avoidance principle, briefly mentioned in a prior Clean Water Act case, contributed to a reading of the Act that is difficult to square with textualist principles. Connecting the environmental law and avoidance creep literatures can generate insights into the Court’s new methods of interpretation
The Economic Structure of Trade Secret Law
No full textThe standard economic account of trade secret law focuses on providing incentives for creating new inventions. The incentive-to-invent theory, however, provides little explanation for why the key doctrinal features of trade secret law are structured the way that they are. For example, providing ex ante incentives to invent does not easily explain the requirement that an inventor must take measures to preserve secrecy even after the invention has been created. Nor does it explain why trade secret misappropriation, unlike patent and copyright infringement, requires “improper” conduct by the defendant for liability. This Article gives a different theory of trade secret law. The primary economic purpose of trade secret law is not to preserve the incentive to invent but to dissuade the possessor of a secret idea from using inefficient self-help countermeasures to protect the secret. As the Article will explain, this anti-countermeasure principle provides an overarching theory to explain the key structural features of trade secret law in a manner that the incentive-to-invent theory does not
Core Skills & Cool Tools from the Third Generation of FCIL Librarians
No full textThere have been three generations of foreign, comparative, and international law (FCIL) librarians in the United States (US) in the postwar era. FCIL librarians of the first generation were foreign lawyers who emigrated to the US after World War II. Those of the second generation were American lawyer-librarians who built the infrastructure of FCIL librarianship into what it is today. The third generation of FCIL librarians includes the authors of this article. We perform many of the same research tasks as our predecessors, but we do so primarily online through an ever-evolving array of new and emerging technologies. This article discusses some core skills of FCIL librarianship that have remained constant over three generations and highlights some select “cool tools” that FCIL librarians of each generation have utilized to perform their work
Surpassing Bostock: SEC Filing Deficits Mask Prevalence of LGBTQ+ Workplace Discrimination in Big Tech
No full textEquity for American Indian Families
Full text linkFor the better part of two centuries, the cornerstone of federal Indian policy was destabilizing and eradicating tribal governments. In the process, federal Indian policy also dismantled American Indian families via child removal. Attempting to equalize American Indians through the practice of assimilation, decades of Indian child removal policies destroyed Indian families. In 1978, Congress responded to these horrors by passing the Indian Child Welfare Act (ICWA), a revolutionary law that was responsive to its trust responsibility to American Indian Tribes. By providing for the best interests of Indian children, heightened protections for parents of Indian children in certain child custody proceedings, and vesting Tribes with a legally recognizable interest in their children’s futures, Congress issued a referendum on equality for American Indians and the very nature of colonialism. For nearly fifty years, ICWA has governed certain child custody proceedings involving Indian children in state courts. In 2018, a group of state and private actors decided to challenge ICWA’s constitutionality in Haaland v. Brackeen. Among their claims, these parties alleged that ICWA violated the equal protection rights of potential adoptive parents who are non-Indian and that ICWA placed Indian children at a disadvantage. However, just beneath the surface of these claims lies the real allegation: American Indian children should be available for the “good families” or for the “right kind of families” to adopt them. By claiming American Indians had special rights via ICWA, these plaintiffs hoped to re-introduce a version of equality that allowed generations of federal, state, and individual actors to enact assimilationist policies. Ultimately, the goal of equality in this area remains to ensure that “good families” maintain access to Indian children. Contrary to congressional goals, Indian children remain a commodity in demand for “good families” looking to save Indian children. Blending family law, federal Indian law, and constitutional law, this Article evaluates the fallacy in applying the Equal Protection Clause to claims about ICWA. In doing so, this Article demonstrates that ICWA contains an anti-colonial equity principle that is contrary to the equal protection doctrine—a doctrine that Congress knew could never apply when the matter came to accessing the rights of American Indian families against those of the settlers, primarily because the rights of American Indian individuals are intricately linked to the federal trust responsibility. This Article argues that given ICWA’s character as an anti-colonial statute, applying the Equal Protection Clause to it will only stand to yield absurd results in furtherance of a colonial project that Congress has abandoned. Instead of the equality the Supreme Court promises through its equal protection doctrine, ICWA’s mandate requires equity
An Examination of Public Benefit Enrollment Data in Minnesota Immigrant Households as Evidence of Public Charge Chilling Effect
Full text linkThe Rhetoric and Reality of Shareholder Profit Maximization
Full text linkThere is presently a heated debate as to what a corporation’s purpose should be. The debate is between proponents of shareholder profit maximization (SPM), the idea that companies should be run exclusively in the financial interests of their shareholders, and proponents of stakeholderism, the idea that in addition to shareholder financial interests, companies should be run to further interests of other stakeholders. At least some of these other stakeholders are quite sympathetic and their interests, or more precisely, the respects in which their interests are purportedly being harmed (or at least insufficiently attended to), are quite salient. While SPM and stakeholder positions are at odds as a matter of first principles, a key advantage SPM theorists claim is instrumental. It is conceptually clear how SPM would work—the board determines what best maximizes shareholder financial value. If the board’s decisions or inaction are found wanting, its members are accountable to the shareholders for breaching their fiduciary duty. The market’s verdict, delivered via the company’s stock price, should also promote accountability, as should shareholders’ ability to replace poorly-performing directors. I argue here that SPM’s claim to being instrumentally superior to stakeholderism is significantly overstated./= / \u3e/= / \u3eThis Article argues that the rhetorical battle between SPM and stakeholderism is being conducted simultaneously with, but in some important senses disconnected from, a real-world battle over particular stakeholder interests. My arguments may assist in reframing the debate to soften the lines between shareholder financial interests and other interests corporations affect
