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Game of Drones: Rolling the Dice with Unmanned Aerial Vehicles and Privacy
Get PDFThe advances in technology that have resulted in the increase in the prediction as to the number of drones that may soon be in our skies—as many as seven million in 2020 alone—serve as a call to action. It serves as a call to action for those concerned with protecting individuals’ privacy without imprudently inhibiting the ability of law enforcement. It also serves as a call to action for those concerned with the Supreme Court’s Fourth Amendment jurisprudence focusing on the “reasonable expectation of privacy” standard. If the Federal Aviation Administration itself predicted six years ago that there would be 15,000 drones sold annually and today places that number at seven million, how can law enforcement and the courts determine what the public’s reasonable expectation of privacy should be regarding drones? If the technology advances allow for nearly constant increases in surveillance capabilities of drones from an amalgamation of technologies, it is time for the Court to deconstruct its broad “reasonable expectation of privacy” doctrine
Improvident Student Lending
Get PDFThe idea that lending without regard to ability to repay should be illegal is not particularly new, but it gained purchase in recent years with the rapid growth of high-cost mortgage loans. In the late 1990s, law enforcement and private litigants began attacking predatory mortgage lenders on the grounds they were making loans that borrowers could not afford. Both before and after the financial crisis of 2008, state and federal legislators imposed reforms on the mortgage market that provided relief to borrowers whose lenders failed to determine whether they had sufficient income to afford their monthly mortgage payments.
This Article seeks to address two gaps in the literature on ability to repay. The first is the lack of research on the application of the ability-to repay standard to nonmortgage credit products. Second, the Article identifies a trend toward an increased focus on ex post loan performance as opposed to ex ante risk assessments to determine whether a lender considered a borrower’s ability to repay. The example of litigation against for-profit colleges’ student loan activities illustrates these points
Beyond the Pipeline Wars: Reforming Environmental Assessment of Energy Transport Infrastructure
Get PDFIn recent years, the role of transport infrastructure in energy markets has become a flashpoint for legal conflict. On one hand, the world is experiencing an unprecedented buildout of all kinds of energy transport: oil and gas pipelines, liquefied natural gas projects, power transmission, and port facilities for coal and oil. On the other hand, environmental advocates have increasingly insisted that pipelines and other transport projects should not be built if they would encourage fossil fuel production in markets “upstream” and fossil fuel consumption in markets “downstream” of these projects.
Governments have struggled with how to respond. President Obama famously promised to assess the upstream emissions from the Keystone XL pipeline but the resulting analysis was criticized by all sides as confusing and incomplete. In the meantime, most other energy transport facilities, including other oil and gas pipelines, were being approved without any upstream or downstream analysis over the objection of environmental groups. The federal agencies have split between infrastructure approving agencies which are resisting wider reviews and the Environmental Protection Agency, which has demanded them. And the fight has spread to other countries, where the Keystone XL precedent is now frequently cited as a model by opponents of oil and gas pipelines.
This Article makes the counterintuitive case that studying how energy transport projects might affect upstream and downstream markets is unwise. First, the marginal impact of a single energy transport project in ever changing global energy markets is so uncertain that it provides no useful information to the agencies that decide on these projects. Second, to approve or reject a pipeline because it could encourage international energy markets is to assert the power and the authority to control energy markets in other countries—an undiplomatic encroachment on the authority of those countries to balance environmental and economic concerns in regulating their own energy markets
Backyard Beekeeping in the Beehive State: Salt Lake City’s Beekeeping Regulations, Nuisance Concerns, and the Legal Status of Honey Bees
Get PDFRecognizing the increasing popularity of urban beekeeping and the vital role that bees play in the ecosystem, the Salt Lake City Council has acted to allow keeping bees within city limits. To ensure that bees would not present a significant nuisance, the council implemented a simple set of guidelines to regulate the practice. While the Ordinance is an excellent first step that effectively addresses most of the sources of nuisance associated with honey bees, it would be wise to reassess its provisions now that it has been in place for nearly eight years. Perhaps a survey of complaints about urban beehives could be conducted, the results of which could be used to guide a revision of the Ordinance with the aim of maintaining a harmonious relationship between beekeepers and their neighbors
Congressional Power and Sovereignty in Indian Affairs
Get PDFThe doctrine of inherent tribal sovereignty—that tribes retain aboriginal sovereign governing power over people and territory—is under perpetual assault. Despite two centuries of precedential foundation, the doctrine must be defended afresh with each attack. Opponents of the doctrine of tribal sovereignty express skepticism of the doctrine, suggesting that tribal sovereignty is a nullity because it is not unfettered. Some pay lip service to the doctrine while undermining tribes in their exercise of inherent sovereignty. Underlying many of these legal fights is confusion about both the nature of tribal sovereignty and the justifications for its continuing existence. Under current federal law, tribes are domestic, rather than international sovereigns. Tribes retain significant powers but are subject to the ultimate sovereignty of the United States. The sui generis status of Indian tribes in the American legal landscape generates important and difficult questions: which governing powers do tribes retain and where does the power to answer that question reside in the federal system? How are disputes about the scope of tribal authority to be resolved?
As the debate about what powers tribes may exercise (and over whom) continues into its third century, it is critical to reexamine the origins of the doctrine of inherent tribal sovereignty as a settled principle of federal law and to articulate the principles that ought to guide the development of that principle in the future. Setting the metes and bounds of the doctrine of tribal sovereignty in federal law and policy belongs to the political branches. This Article suggests legal principles that ought to guide the federal political branches in the exercise of the Indian Affairs power and the trust responsibility to address the scope of tribal inherent authority. First, this Article examines the legal roots and branches of the doctrine of inherent tribal sovereignty, demonstrating that the doctrine remains a vital principle of federal law. Second, this Article analyzes the nature of contemporary assaults on the doctrine of inherent tribal authority by all three branches of the federal government, states, and private actors. Third, this Article suggests principles that ought to guide Congress in exercising its Indian affairs power to clarify and affirm the bounds of tribal sovereignty in federal law and in carrying out the federal trust responsibility to tribes
Transcript - Conference on the Ethics of Legal Scholarship
Get PDFThis is a transcript of the proceedings of the Conference on the Ethics of Legal Scholarship held at Marquette University Law School on September 15-16, 2017. Topics addressed include (1) what counts as legal scholarship and what is the obligation of neutrality?, (2) the obligations of sincerity, candor, and exhaustiveness, and (3) the mechanisms of legal scholarship, especially law reviews and the issues they create. The conference\u27s working aim was to generate and propose a set of ethical guidelines for legal scholarship
Free Trade in Electric Power
Get PDFThis Article develops the core legal framework of a new electricity trading ecosystem in which anyone, anytime, anywhere, can trade electricity in any amount with anyone else. The proliferation of solar and other distributed energy resources, business model innovation in the sharing economy, and climate change present enormous challenges—and opportunities—for America’s energy economy. But the electricity industry is ill-equipped to adapt to and benefit from these transformative forces, with much of its physical infrastructure, regulatory institutions, and business models relics of the early days of electrification. This Article suggests a systematic rethinking to usher in a new trading paradigm and propel the electric utility industry into the twenty-first century.
This model has the potential to revolutionize the way electricity is generated, delivered, and used without requiring dramatic legal reform or radically new technologies. Instead, this Article draws on recent Supreme Court precedent and readily available technologies to democratize the electric grid and unlock free trade in electric power. It refines and expands pilot initiatives currently under way in California and New York to combine existing wholesale markets with new trading platforms similar to Airbnb and Uber. Enhanced market access will empower previously captive consumers to emancipate themselves from their local utilities while also ensuring the proper valuation and integration of a diverse portfolio of energy resources.
Transformative change, however necessary and beneficial in the long run, will not come easily in an industry famous for its resistance to reform efforts of any kind. Accordingly, this proposal does not start with a clean slate, but, rather, envisions a hybrid system where competitive markets coexist with traditional utility governance structures while regulators and stakeholders adjust to the new trading paradig
Harvey, Irma, and the NFIP: Did the 2017 Hurricane Season Matter to Flood Insurance Reauthorization?
Get PDFThe National Flood Insurance Program (NFIP) has become a coastal hurricane insurance program—a fact that is bankrupting it. As a result of climate change, the ocean surrounding the United States is both rising and becoming warmer, and hurricanes and other coastal storms are projected to become both more frequent and more destructive. While no particular hurricane can yet be blamed exclusively on climate change, these projections nevertheless have real implications for the future of the NFIP.In 2017, Congress was gearing up to reauthorize the NFIP just as the United States entered its worst hurricane season in over a decade. This Article examines how hurricanes and other coastal storms have affected the NFIP, both in terms of it solvency and its potential goals. Specifically, after reviewing the NFIP’s history and its interactions with coastal hurricanes and storms, the Article explores the process of re-authorizing the NFIP in 2017 and 2018 while the United States was suffering through Hurricanes Harvey and Irma. It concludes that Congress is showing some signs of reforming the NFIP to take account of the increasing vulnerability of coastal properties but that the NFIP could do much more to promote climate change adaptability
Halted Innovation: The Expansion of Federal Jurisdiction over Medicine and the Human Body
Get PDFModern medical innovations are blurring the line between medical practice and medical devices and drugs. Historically, many techniques have been developed in medicine, without any interference from the federal government, as medical practice is (and has historically been) an area of state jurisdiction. Over the past two decades, however, the U.S. Food and Drug Administration (FDA) has been exerting jurisdiction over the human body and the practice of medicine by targeting new medical techniques for oversight and subjecting the continued use of those treatments to onerous and legally questionable regulatory requirements that hinder the use of those treatments in practice.
This Article examines developing innovations in medicine and the life sciences, including gene editing (and CRISPR-Cas9, a system of gene editing that has been the subject of significant media coverage due to its wide-ranging potential uses), forms of assisted reproductive technology that could prevent the transmission of genetic diseases, stem cell therapies, and fecal microbiota transplants. The Article makes several claims. First, the Article argues that innovations in the life sciences largely fall outside of the jurisdiction of the FDA. Second, the FDA is applying a regime intended to regulate medical devices and pharmaceuticals to new innovations in the life sciences, which has a chilling effect on innovation and patient health. The Article also reveals that States—due to their historic police powers over the practice of medicine—retain a critical piece of jurisdiction over the life sciences such that the only method of accurately and adequately regulating the life sciences must include the States. Ultimately, it is critical that the regulatory apparatus surrounding the life sciences be improved, as the pace of innovation indicates that the regulation of the life sciences will continue to be salient in the near and distant future
Making Meaningful Access Meaningful: Equitable Healthcare for Divisive Times
Get PDFAnother anniversary of President Bush’s signing of the Americans with Disabilities Act (ADA) is coming up in late July, yet the nation remains far from offering even a semblance of equitable societal opportunity to most individuals with disabilities.
For them, full social participation is dismissed as merely an idealistic dream. With its focus on restoration of full functioning for patients, the health care delivery system might be supposed an exception, but a closer look shows the opposite is true.
Physicians’ offices, clinics, and hospitals too often have not been made accessible. Too frequently, these facilities have diagnostic or treatment equipment that some people, due to disability, cannot use. Health care provider staff are not trained to interact with or assess disabled individuals, and may be swayed by implicit biases that target disability, just as are non-medical personnel or laypersons in the population