3394 research outputs found
Sort by
Unbecoming Adversaries: Natural Resource Federalism in Wyoming
Get PDFWyoming’s unique cultural and physical landscape fostered dynamic federalism relationships that have oscillated between adversarial and cooperative. Too often, though, the State and its federal and tribal counterparts have found themselves in the role of unbecoming adversaries. As current and former natural resources faculty members at the University of Wyoming (UW) College of Law, we are privileged to offer a retrospective on this subject upon the law school’s centennial. In 2021, the State is facing new and daunting challenges that are straining its core industries and budget, including economic changes associated with the COVID-19 global pandemic and rapidly transforming energy markets. Concurrently, the COVID-19 pandemic has accelerated tourism and recreation activity and brought remote worker-migrants to mountain towns, offering new sources of revenue while increasing impacts on infrastructure and parks. In these times, moreover, we cannot ignore climate-related changes or the need to make natural resources governance more inclusive and more just. It is our humble hope that this natural resource-focused evaluation of federal-state-tribal relations within Wyoming offers insights to inform and improve these relationships in the years ahead
Preface
Get PDFWhen the Utah Law Review editors selected the topic for this symposium issue in early February 2020, we did not anticipate—nor would we have wished for—how exceptionally timely the topic would become over the next year-and-a-half. By the time we were extending invitations to participate in the fall 2020 symposium event, most teaching and learning at the law school, including the annual Lee E. Teitelbaum law review symposium, had moved online. As in so many aspects of life during the pandemic, our conversations turned to COVID-19. The extent and forms of regulation of medical research in the U.S. are sources of persistent controversy. COVID-19 only added fuel to the fire, pressing urgent needs for information and innovation
Shepardizing Patents?
Get PDFIn a world where patents play an increasingly important role in the technology development and innovation landscape, it is critical that reliable information about the status and history of patents be made available to the public. The USPTO has made a public commitment to the “discoverability, accessibility, and usability of public patent and trademark data”, and as such it can help to collect, organize and display contextual patent data in a simple and user-friendly fashion. A uniform “Shepardization” system for patents, which clearly flags issues for potential licensees, defendants and innovators and alerts the public to the potential investment and threat value of individual patents, would help to make the markets in which patents exist more transparent and efficient
Charting a “Substantially Different” Approach to Land Management Planning Following a Congressional Review Act Joint Resolution of Disapproval
Get PDFCongress enacted the Congressional Review Act (“CRA”) in 1996 as part of the Gingrich Revolution. The CRA creates an expedited path for Congress to repeal agency rules. It also prohibits an agency from reissuing a new rule that is “substantially the same” as a repealed rule. But the CRA fails to define “substantially the same” and does not require Congress to identify its objections to a repealed rule. The uncertainty that results has a chilling effect on federal agencies. Indeed, Congress has struck down twenty rules using the CRA, and just two of those rules have been replaced. We use the Bureau of Land Management’s Planning Rule, which was struck down in 2017 using the CRA, as an example of how an agency that is statutorily obligated to enact a broad regulatory program can proceed following a joint resolution of disapproval. The safest path forward, we argue, involves a rule that is more protective of the environment than the rule that was repealed by Congress—far from the outcome that congressional Republicans and the Trump Administration intended when they struck down the BLM Planning Rule
The Emerging Law of Outdoor Recreation on the Public Lands
Get PDFOutdoor recreation is assuming a prominent role across the public lands, presenting the responsible federal agencies with difficult, new management challenges. Since World War II, recreational uses of public lands have been on a steady upward trajectory, which has only accelerated during this century. Today, an increasingly diverse array of outdoor activities, each pressing for greater access to the public domain, is spawning considerable controversy while raising corresponding environmental concerns. The outdoor recreation industry is now an economic powerhouse and, together with recreation participants, is becoming a notable political force. Curiously, prevailing law says very little about recreation on the public lands, unlike the laws governing timber, mining, and other resource uses. Instead, Congress has broadly delegated management authority to the responsible agencies and otherwise primarily relied upon special protective designations—national parks, wildlife refuges, and wilderness areas—and various funding mechanisms to meet recreation demands. As a result, the agencies, presidents, and courts are piecemeal developing what amounts to a common law of outdoor recreation. This Article explains how that is occurring and what it portends for recreation policy on the public lands, while also suggesting additions to the governing law
Water Is Life: Law, Systemic Racism, and Water Security in Indian Country
Get PDFThe 21st Century has been marked by significant advancements in technology, from travel to Mars and self-driving cars to smartphones and bitcoin. And yet, at the same time, hundreds of thousands of Native Americans live without access to safe, clean and reliable drinking water. By some estimates, 48% of households on Indian reservations do not have clean water or adequate sanitation. This lack of access has been highlighted by the coronavirus pandemic, but it is not a new issue. Native American communities have long suffered inequities stemming from colonization and perpetrated by federal policy. While the pandemic has devastated many Tribal communities, it has also brought attention to issues long ignored, including lack of clean water access and health disparities. As a result, a unique window of opportunity has arisen to address these issues and achieve universal access to clean water across the United States. This commentary discusses common challenges faced by tribal communities to secure clean water access, from lack of infrastructure to laws and legal systems that reduce the access to a clean, safe, and reliable water supply
COVID-19 Protocols for NCAA Football and the NFL: Does Collective Bargaining Produce Safer Conditions for Players?
Get PDFMy study surveyed all NCAA football programs in Power 5 conferences during the 2020 season to compare their COVID-19 safety protocols to those in the NFL-NFLPA labor agreement. College protocols lacked input from a players association. In contrast, the NFL and their players collectively bargained a seventy-two-page agreement for COVID- 19 protocols. Policies from nineteen college football programs fell far short of NFL-NFLPA standards, scoring ten to thirty points out of the forty-five safety points in the NFL labor agreement. College policies were strongest for symptom checking and cardiac evaluations. However, most college policies failed to identify players with individual risk factors and provide them extra medical monitoring; additionally, no college policy reported using location tracking technology for contact tracing. The NFLPA also had a whistleblower hotline to report noncompliance with the labor agreement, but college policies did not. I conclude that collective bargaining provided NFL football players with superior safeguards compared to those for college players. Like unionized construction firms, which have better safety records than nonunion firms, the NFL is safer than the NCAA for football players because of collectively bargained practices. This study supports treating college players as employees rather than amateurs because employment is necessary to form a union
Fraud Law and Misinfodemics
Get PDFDuring the COVID-19 pandemic, many on whom the public depended for truthful information purposefully or recklessly spread misinformation that put thousands at risk. The term “misinfodemic,” coined in 2019, describes such events where misinformation facilitates the spread of a disease or causes some other health-related outcome. Though the term was only recently defined, the recent misinfodemic was not a new or novel phenomenon. False information is spread to the public all the time. This often results in harm to public health. False claims are communicated by corporations seeking to mislead the public to make more money, by politicians to gain votes and support, and by media outlets to increase viewership and advertising revenue. Although these and other deceptions of the public for profit might be unethical, they are legal. This Article explores the question of why. There are two key components to this analysis, one centered on tort law and the other on the First Amendment. This Article will focus only on tort law aspects. This Article discusses how fraud law developed to focus almost exclusively on personal deceptions while almost entirely ignoring impersonal deceptions like deceptions of the public. As a result, there is most often no tort remedy available to individuals harmed by misinfodemics. This Article prescribes a fix for this gap in the law: treat fraud on the public like any other fraud by prohibiting misinformation and punishing those who spread it. Precedent and policy support imposing civil remedies against those who purposefully or recklessly mislead the public for gain. The important First Amendment aspects of this issue will be addressed in future scholarship
Americans for Prosperity Foundation v. Matthew Rodriquez
Get PDFThe twelve individuals filing this amicus brief are professors and scholars of the law of nonprofit organizations. No party in this case represents all three of charity’s key stakeholders: charities, states, and taxpayers who underwrite the charities’ funding. Amici are participating in this litigation in order to aid the Court in understanding how these three interests depend on one another. They also attempt to provide a clearer understanding of state supervision of charities and how that supervision related to federal tax law
Evidentiary Policies Through Other Means: The Disparate Impact of “Substantive Law” on the Distribution of Errors Among Racial Groups
Get PDFThis Article develops an analytical framework to investigate novel ways in which legal reforms disguised as “substantive” can affect procedural due process safeguards differently among racial groups. Scholars have long recognized the impact evidence rules have on substantive policies, such as modifying primary incentives or affecting the distribution of legal entitlements in society. However, legal scholars have not paid enough attention to the reverse effect: how changes in “substantive law” influence policy objectives traditionally associated with evidence law—“evidentiary policies.”
To fill this gap, this Article discusses three related evidentiary policies. The first is accuracy, which courts and scholars consider a central objective of evidence law. But improving the accuracy of legal fact-finding is not an exclusive function of evidence law. Different substantive rules and doctrines also influence the accuracy of legal decisions. Albeit valuable, accuracy is neither free nor cheap. A second important consideration in evidence law is the cost of litigation—and the cost of fact-finding in particular. Substantive law also plays a role in determining the expense of adjudication. Since we cannot eliminate errors from an adjudicative system with limited resources, we must decide which errors we are willing to accept and which are worthy of spending more resources to avoid. The third example of evidentiary policy affected by substantive law, and the one this Article focuses on, is allocating the risk of mistaken judgments of fact between parties.
Standards of proof stand out as a particularly important evidentiary mechanism to distribute the risk of errors. The final error distribution, however, is also a function of other factors, such as the accuracy of the legal fact-finding and how rules are designed and applied. Substantive rules can alter the error distribution in a myriad of ways. Through graphs and other analytical tools, this Article develops a framework to identify and assess these impacts on various situations, including racial disparities between Black and White defendants.
The effects of substantive law on allocating error risk between parties raise important concerns for different doctrines, particularly for procedural due process. Courts have consistently held that procedural due process requires an error-distribution strongly biased in favor of criminal defendants. This requirement is primarily enforced through standards of proof and other evidentiary rules. However, this Article argues that substantive law changes can move us away from an errordistribution strongly biased in favor of criminal defendants. Scholars and practitioners often fail to consider these effects when discussing changes to existing laws. This omission comes at a potentially high cost for defendants’ procedural due process and other constitutional safeguards, especially for minority groups