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Jaclyn Lopez, Between a Rock and a Hardened Place: Prioritizing Climate Resiliency for Vulnerable Biodiversity, 34 Duke Envtl. L. & Policy Forum 157 (2024)Clicking on the button will copy the full recommended citation.
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Jaclyn Lopez, The (In)direct Effects of 20 Years of Public Citizen, 15 George Washington Journal of Energy and Envtl. L. 21 (2024)Clicking on the button will copy the full recommended citation.
The federal circuits have diverging trends in their treatment of Department of Transportation v. Public Citizen, the 2004 landmark Supreme Court decision that held that federal agencies do not always need to analyze and disclose the indirect effects of their actions. Explanations for this phenomenon include that courts may be following more universal conservative and progressive trends in their circuits, or perhaps that distinctions turn on the statutes at play, or that particular courts may be more inclined to defer to an agency's interpretation of its regulations rather than Congress' intent in passing a particular law. This Article provides a critical review of the last 20 years of case law and regulatory changes regarding the National Environmental Policy Act ("NEPA") and what types of environmental effects federal agencies must disclose and analyze in funding or authorizing major federal actions following Public Citizen.
Federal courts since that decision have navigated precedent seemingly at odds with Congress' intent that federal agencies use all practicable means to "assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings" in considering all reasonably foreseeable effects of major actions. Some courts maintain that federal agencies must analyze and disclose the reasonably foreseeable
indirect effects of the actions they authorize, while others have adopted a broader interpretation of Public Citizen to virtually eliminate indirect effects analysis regardless of foreseeability if there is a break in the causal chain or lack of discretion to address the impacts. This Article helps illuminate why these trends may have emerged, aids litigators in navigating the legal landscape, and provides fodder for NEPA reform. It concludes with recommendations for practitioners who seek to protect the human environment through the enforcement of NEPA's requirement that agencies analyze and disclose a complete account of the reasonably foreseeable effects of their actions.
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Grant Christensen, Article III and Indian Tribes, 108 Minn. L. Rev. 1789 (2024)Clicking on the button will copy the full recommended citation.
Among the most basic principles of our federal courts is that they are courts of limited jurisdiction, exercising only those powers delegated to them in Article III. In 1985 the Supreme Court inexplicably created an exception to this constitutional tenant, and unilaterally declared a plenary judicial power to review the exercise of an Indian tribe’s inherent sovereign authority. This exception is unmoored from all other Supreme Court precedent outside Indian law, and unjustifiably assumes the judicial power in direct contrast to the Court’s ordinarily thoughtful jurisprudence on Article III and deference to the separation of powers.
This article concludes that the Supreme Court was wrong in 1985 when it assumed a plenary judicial power over Indian affairs. The consequences are profound, and suggest a reconceptualization of the entire field of Indian law. Canon creating cases like Oliphant, Montana, and Cabazon should never have been decided because the exercise of a tribe’s inherent authority does not create a federal question conferring subject matter jurisdiction on the federal courts. The inherent power of Indian tribes to criminally prosecute or civilly regulate non-Indians in Indian country should not subject them to the judicially imposed limits set by the Supreme Court, because the Court lacks subject matter jurisdiction to decide those cases. Until a treaty or statute creates an affirmative basis for federal court review, an Indian tribe’s inherent powers are subject to the checks and balances imposed by tribal government and no others.
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Robyn Powell, Care Reimagined: Transforming Law by Embracing Interdependence, 122 Mich. L. Rev. 1185 (2024)Clicking on the button will copy the full recommended citation.
Building upon the foundation laid by All Our Families: Disability Lineage and the Future of Kinship, this Review examines the complex issues surrounding care and their relevance to people with disabilities. Part I delves into the contrasting perspectives of the disability rights movement and disability justice. By juxtaposing the emphasis on independence with a focus on interdependence, I unravel the intricate dynamics shaping the care experiences of disabled people. Part II presents a descriptive analysis unveiling the current realities of care. In doing so, I seek to expose the limited availability and access to care, the legal and bureaucratic impediments hindering effective care delivery, and the pervasive inequities faced by both unpaid and paid caregivers. Finally, Part III proposes a normative vision for reimagining care. I suggest strategies for broadening availability and access to care, challenging legal and bureaucratic impediments to care, confronting caregiver inequities, and fostering mutual aid networks within disabled communities. This Review’s analysis of care issues and transformative proposals aims to enrich disability, health, and family law discourse, providing valuable insights and shaping discussions and actions toward more inclusive and equitable legal frameworks and practices.
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Robyn Powell, Disabled and Disenfranchised: The Fight for Reproductive Freedom and Democracy Post-Dobbs, 46 Cardozo L. Rev. 1385 (2024)Clicking on the button will copy the full recommended citation.
The Supreme Court has thrust abortion onto ballots nationwide, transforming fundamental rights into political battlegrounds. In the aftermath of Dobbs v. Jackson Women’s Health Organization, people with disabilities face a perfect storm of eroded reproductive freedoms and persistent barriers to democratic participation. This Article exposes the hollow promise of the Court’s purported deference to “the people’s elected representatives,” revealing instead a landscape where those most affected by abortion restrictions struggle to have their voices heard. The Court’s invocation of democracy is arguably disingenuous, serving more as a rhetorical device than a genuine commitment to democratic principles. Nevertheless, engaging with this framing is crucial, as it now shapes the terrain on which reproductive freedom must be defended and advanced. The Dobbs decision not only dismantles reproductive rights but also lays bare the deep inequities in our democratic processes. For disabled people, this opinion amplifies existing challenges, subjecting them to heightened health risks, diminished healthcare access, increased economic insecurity, and further assaults on their bodily autonomy—all while their ability to influence relevant policies remains constrained
This Article contributes to the post-Dobbs discourse by proposing a radical reimagining of reproductive justice and disability rights advocacy within the imposed democratic framework. It introduces a dual strategy that combines tactical engagement with existing democratic systems and bold efforts to transform entrenched injustices. The Article outlines concrete pathways for empowering people with disabilities in the reproductive justice movement, including methods to shape public opinion, leverage lobbying, mobilize voting power, and increase disabled representation in political office. This innovative framework aims to achieve true reproductive freedom—grounded in bodily autonomy, self-determination, and dignity for all. Ultimately, it argues that confronting the democratic deficits facing the disability community is not just crucial for safeguarding reproductive freedom but essential for exposing and dismantling the Court’s flawed reasoning in Dobbs. With abortion rights now subject to the vicissitudes of electoral politics, this Article charts a course toward a more inclusive democracy—one that amplifies marginalized voices and reimagines reproductive justice in the complex post-Dobbs era.
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Robyn Powell, Reproductive Justice for Disabled People Post-Dobbs: A Call-to-Action for Researchers, 17 Disability and Health Journal 101572 (2024)Clicking on the button will copy the full recommended citation.
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Louis J. Virelli, The Underappreciated Virtues of the Supreme Court’s Ethics Code, 52 Hofstra L. Rev. 657 (2024)Clicking on the button will copy the full recommended citation.
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Louis J. Virelli and Richard W. Murphy, Supreme Court News, 49 Administrative & Regulatory Law News 22 (2024)Clicking on the button will copy the full recommended citation.
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Will Bunting, Consumer Voice and Optimal Firm Size, 72 Buff. L. Rev. 617 (2024)Clicking on the button will copy the full recommended citation.
This Article examines the question: How can a consumer hold a seller to account in an exchange relationship when expectations have not been met. The Article’s first contribution is to recognize that, in the case of small firms, an employer business can provide a higher level of conflict resolution compared to a non-employer business. Unlike a consumer, an employer has the level of control necessary to compel an employee to remedy a product or service failure. Rather than engage in a costly personal confrontation with an employee, a dissatisfied consumer can simply request that the employer make the employee perform as promised. In this way, the existence of an employer-employee relationship allows a dissatisfied consumer to transfer or otherwise delegate conflict resolution to a person with greater power to remedy a product or service failure.
The Article’s second contribution is to recognize that, in the case of large firms operating in markets with imperfect competition, a large firm is likely to provide a suboptimal level of conflict resolution. When consumers are locked into an exchange relationship because switching costs are sufficiently high due to a lack of available market alternatives, consumers often have limited voice and no other feasible dissatisfaction response—a state of powerlessness that this Article terms “consumer captivity.” This Article argues that antitrust authorities ought to include consumer captivity more consistently in the mix of non-price consumer harms cognizable under U.S. antitrust law. To increase the level of conflict resolution of large firms in imperfect markets, this Article identifies two potential regulatory strategies informed by the analytic framework: (1) indirectly reduce the cost of consumer voice, and (2) directly increase the probability that a dissatisfied consumer receives a compensatory remedy.
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Robyn Powell et al., Family Caregivers’ Attitudes and Perspectives about the Sexual Reproductive Health of Women with Intellectual and Developmental Disabilities: An Online Survey, 129 American Journal on Intellectual and Developmental Disabilities 135 (2024)Clicking on the button will copy the full recommended citation.
Although sexual and reproductive health is critically important for women with intellectual and developmental disabilities (IDD), there is limited research elucidating the role of family caregivers in assisting women with IDD access sexual and reproductive health services and information. Understanding the family caregivers' attitudes and perspectives is essential to improving access to sexual and reproductive health services and information for women with IDD. A cross-sectional online survey of family caregivers of women with IDD was administered between June and October 2018. Quantitative analysis was conducted for closed-ended responses, and qualitative analysis was conducted for open-ended responses. The analytic sample included 132 family caregivers. Most participants were parents and reported being closely involved in their family member's access to sexual and reproductive health services and information. Although most participants expressed that sexual and reproductive health services and information are essential for women with IDD, qualitative analysis of participants' open-ended responses revealed both supportive and restrictive attitudes and perspectives on sexual and reproductive health services and information for women with IDD. Supportive attitudes and perspectives included (1) "knowledge is power;" (2) supported decision-making; and (3) protection against sexual abuse. Restrictive attitudes and perspectives included (1) dependent on the individual; (2) lack of autonomy; and (3) placing responsibility on disability. Greater attention from policymakers and practitioners to systems-level changes, including universal and accessible sexual education for women with IDD, supported decision-making, and sexual abuse prevention measures, are urgently needed.