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The Bogeyman of Environmental Regulation: Federalism, Agency Preemption, and the Roberts Court

By Kamaile A.N. Turčan | June 21, 2025

By KAMAILE A.N. TURČAN. Full Text. In a trio of environmental cases—West Virginia v. EPA, Sackett v. EPA, and Loper Bright v. Raimondo—the Roberts Court curtailed the federal regulatory power and produced corresponding deregulatory outcomes under seemingly neutral legal principles. This Article interrogates the doctrinal coherency of the Roberts Court’s jurisprudence by applying the rationales…

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Article

Filling the Sackett Gap: The Private Governance Option

By Michael P. Vandenbergh, Elodie O. Currier Stoffel, and Steph Tai | June 21, 2025

By MICHAEL P. VANDENBERGH, ELODIE O. CURRIER STOFFEL, and STEPH TAI. Full Text. The Supreme Court’s decision in Sackett v. EPA reversed fifty years of federal Clean Water Act wetlands protections and removed federal oversight from roughly half of the wetlands in the United States. This Article proposes a viable new conceptual model and tools…

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Article

The Impact of Loper Bright v. Raimondo: An Empirical Review of the First Six Months

By Robin Kundis Craig | June 21, 2025

By ROBIN KUNDIS CRAIG. Full Text. One of the most impactful decisions of the U.S. Supreme Court’s 2023–2024 term was Loper Bright Enterprises v. Raimondo, which overruled the forty-year-old administrative law doctrine of Chevron deference. This doctrine allowed federal agencies to interpret ambiguities in the statutes that they administer. Courts cited Chevron over 18,000 times…

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Article

Water Flowing Down Wall Street

By Vanessa Casado Pérez | June 21, 2025

By VANESSA CASADO PÉREZ. Full Text. Water 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.…

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Article

The Four Horsemen of the New Separation of Powers: The Environmental Law Implications of West Virginia, Sackett, Loper Bright, and Corner Post

By Erin Ryan | June 21, 2025

By ERIN RYAN. Full Text. This Article explores how several of the Supreme Court’s most recent environmental decisions—West Virginia v. EPA, Sackett v. EPA, and Loper Bright v. Raimondo—will shift the constitutional balance of power, and how the polity might respond. Under the pretense of safeguarding legislative power, they consolidate judicial power to decide regulatory…

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Article

Catching Nutrients in a Net: Collective Action, Institutional Impediments, and the Mississippi River Watershed

By Jonathan Rosenbloom | June 21, 2025

By JONATHAN ROSENBLOOM. Full Text. Thousands 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…

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Article

Renewable Energy Federalism 2.0

By Danielle Stokes | June 21, 2025

By DANIELLE STOKES. Full Text. Much like climate change, the clean energy transition presents a “super wicked” problem that is further complicated by prioritizing justice. History has taught us that government regulation, industry innovation, and community engagement are the catalysts of effective transitions. Similarly, the just energy transition requires the support of these interconnected networks.…

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Article

The Clean Water Act and Avoidance Creep

By Jack H.L. Whiteley | June 21, 2025

By JACK H.L. WHITELEY. Full Text. In 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…

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Article

Environmental and Energy Regulation Reformation: Challenges and Solutions After West Virginia v. EPA, Sackett v. EPA, and Loper Bright Enterprises v. Raimondo

By Shannon Schooley | June 21, 2025

By SHANNON SCHOOLEY. Full Text. A foreword to the symposium issue of Minnesota Law Review volume 109.

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Articles, Essays, & Tributes

The Bogeyman of Environmental Regulation: Federalism, Agency Preemption, and the Roberts Court

June 21, 2025

By KAMAILE A.N. TURČAN. Full Text. In a trio of environmental cases—West Virginia v. EPA, Sackett v. EPA, and Loper Bright v. Raimondo—the Roberts Court curtailed the federal regulatory power and produced corresponding deregulatory outcomes under seemingly neutral legal principles. This Article interrogates the doctrinal coherency of the Roberts Court’s jurisprudence by applying the rationales…

Filling the Sackett Gap: The Private Governance Option

June 21, 2025

By MICHAEL P. VANDENBERGH, ELODIE O. CURRIER STOFFEL, and STEPH TAI. Full Text. The Supreme Court’s decision in Sackett v. EPA reversed fifty years of federal Clean Water Act wetlands protections and removed federal oversight from roughly half of the wetlands in the United States. This Article proposes a viable new conceptual model and tools…

The Impact of Loper Bright v. Raimondo: An Empirical Review of the First Six Months

June 21, 2025

By ROBIN KUNDIS CRAIG. Full Text. One of the most impactful decisions of the U.S. Supreme Court’s 2023–2024 term was Loper Bright Enterprises v. Raimondo, which overruled the forty-year-old administrative law doctrine of Chevron deference. This doctrine allowed federal agencies to interpret ambiguities in the statutes that they administer. Courts cited Chevron over 18,000 times…

Water Flowing Down Wall Street

June 21, 2025

By VANESSA CASADO PÉREZ. Full Text. Water 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.…

The Four Horsemen of the New Separation of Powers: The Environmental Law Implications of West Virginia, Sackett, Loper Bright, and Corner Post

June 21, 2025

By ERIN RYAN. Full Text. This Article explores how several of the Supreme Court’s most recent environmental decisions—West Virginia v. EPA, Sackett v. EPA, and Loper Bright v. Raimondo—will shift the constitutional balance of power, and how the polity might respond. Under the pretense of safeguarding legislative power, they consolidate judicial power to decide regulatory…

Renewable Energy Federalism 2.0

June 21, 2025

By DANIELLE STOKES. Full Text. Much like climate change, the clean energy transition presents a “super wicked” problem that is further complicated by prioritizing justice. History has taught us that government regulation, industry innovation, and community engagement are the catalysts of effective transitions. Similarly, the just energy transition requires the support of these interconnected networks.…

The Clean Water Act and Avoidance Creep

June 21, 2025

By JACK H.L. WHITELEY. Full Text. In 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…

Notes

Closing in on the Patent Troll: State Legislatures’ Role in Combatting Trolling Behavior

May 25, 2025

By WILL ROBERTS. Full Text. In the United States, entities known as patent trolls purchase patents solely for the purpose of threatening and bringing litigation and present a significant threat to innovation and economic progress. The question is: Who will rise to the occasion and stop them? In the face of federal inaction, state legislatures…

Headnotes

Commodification, Precarity, and Identity: A Review of Professor Bridget Crawford’s Taxing Sugar Babies

March 21, 2025

By TESSA DAVIS. Full text.

The Liminality of Transactional Relationships

March 21, 2025

By VICTORIA J. HANEMAN. Full Text.

Tax Talk and Taxing Sugar Babies

March 21, 2025

By BLAINE G. SAITO. Full Text.

John Roberts’ Supreme Court: The Triumph of Partisanship and Ideology Over Precedent

April 23, 2025

By DAVID SCHULTZ & JACOB BOURGAULT. Full Text.

Critical Curriculum Design: Teaching Law in an Age of Rising Authoritarianism

April 24, 2025

By RACHEL LÓPEZ. Full Text.

A Great American Gun Myth: Race and the Naming of the “Saturday Night Special”

May 29, 2024

By Jennifer L. Behrens and Joseph Blocher. Full Text. At a time when Second Amendment doctrine has taken a strongly historical turn and gun rights advocates have increasingly argued that gun regulation itself is historically racist, it is especially important that historical claims about race…

Refining the Dangerousness Standard in Felon Disarmament

June 10, 2024

By Jamie G. McWilliam. Full Text. To some, 18 U.S.C. 922(g) is a necessary safeguard that keeps guns out of the hands of dangerous persons. To others, it strips classes of non-violent people of their natural and constitutional rights. This statute makes it a crime…

“Proven” Safety Regulations: Massachusetts 1805 Proving Law As Historical Analogue for Modern Gun Safety Laws

June 10, 2024

By Billy Clark. Full Text. Concerned by the public health threats posed by certain firearms, the Massachusetts legislature enacts a law to set safety standards for firearms in the Commonwealth. Firearm dealers across the State, including some of the leading manufacturers of the day, not…

Curbing Gun Violence Under PLCAA and Bruen: State Attorney General–Driven Solutions to the Surging Epidemic

June 10, 2024

By David Lamb. Full Text. At the same time that the deadly toll of gun violence continues to grow in the U.S., now taking nearly 50,000 lives per year, federal lawmakers and courts have increasingly constrained government authorities’ tools for fighting the epidemic. Pursuant to…

De Novo Blog

CHANGE THE SYSTEM, NOT THE WOMAN: ADDRESSING WORKPLACE INEQUITIES STEMMING FROM THE AMERICAN ECONOMY

December 20, 2024

By: Alyssa Shaw, Volume 109 Staff Member If the progress towards closing the gender wage gap continues on the trends of the last few years, women will not be compensated equally to men until at least 2067—over a century after the passage of the Equal…

HOW RFK’S RECENT COURT BATTLES TO GET ON (AND OFF) THE BALLOT EXEMPLIFY WHY A THIRD-PARTY CANDIDATE WILL NEVER WIN THE PRESIDENCY

October 31, 2024

By: Sophia Antonio, Volume 109 Staff Member Former presidential candidate, Robert F. Kennedy Jr. (RFK), dominated the summer news cycle with bizarre controversies. [1] RFK dropped out of the presidential race, where he ran as a third-party candidate, on August 23rd and endorsed former President…

A NEW TAKE ON TAKINGS: BIG PHARMA’S CONSTITUTIONAL CHALLENGES TO BIDEN’S INFLATION REDUCTION ACT

April 15, 2024

By: Marie Lundgren, Volume 108 Staff Member I. BACKGROUND In 2003, Congress passed the Medicare Modernization Act, marking the largest expansion of benefits in the 38-year history of U.S. public healthcare.[1] When the Medicare program was first enacted in 1965, it covered hospital stays (under…

READY, AIM, FIRE? EVALUATING THE FUTURE OF LIABILITY FOR THE FIREARMS INDUSTRY DURING NEW-WAVE PLCAA LITIGATION

April 15, 2024

By: Will Roberts, Volume 108 Staff Member I. MECHANISMS FOR FIREARMS INDUSTRY LIABILITY In 2005, Congress enacted the Protection of Lawful Commerce in Arms Act (PLCAA) which significantly shielded members of the firearms industry from civil liability for over a decade.[1] PLCAA prohibits “civil action[s]…

CONVENIENT OR CONFRONTATIONAL?: SAMIA WIDENS CONSTITUTIONAL LOOPHOLE

April 15, 2024

By: Mark Hager, Volume 108 Staff Member On June 23, 2023, the Supreme Court issued its opinion in Samia v. United States, the latest in a line of cases regarding the use of non-testifying co-defendant confessions in joint criminal trials.[1] Together, these cases operate as…

THE FIGHT FOR PRIVACY: CALLING FOR BROAD ONLINE PRIVACY REFORM IN THE AGE OF BEING CHRONICALLY ONLINE

April 15, 2024

By Lea Chapoton, Volume 108 Staff Member In the wake of 2022’s Dobbs v. Jackson Women’s Health Organization[1] decision and the ensuing barrage of state laws limiting abortion access, online discussions surged with strategies for maintaining reproductive freedom in potentially hostile circumstances. One popular piece…

SUPREME SPECULATION: WHAT ORAL ARGUMENTS HINT ABOUT HOW JUSTICES ARE LEANING IN CAMPOS-CHAVES V. GARLAND

April 15, 2024

By Hans Frank-Holzner, Volume 108 Staff Member On January 8, 2024, the Supreme Court heard oral arguments in Campos-Chaves v. Garland,[1] a consolidation of three immigration cases concerning the statutory notice requirements the government must meet before it can order a noncitizen removed without a…

BETTING ON THE FUTURE: DISCUSSING PATHS FORWARD FOR MINNESOTA TO LEGALIZE SPORTS BETTING

January 12, 2024

By Benjamin Albert Halevy, Volume 108 Staff Member From pull-tab vending machines at bars to tribe-owned casinos sporting slot machines and blackjack tables, Minnesota is no stranger to gambling within its borders. Yet, sports gambling, the fastest growing sector of gaming, remains wholly illegal within…

DE-TRUMPING THE 2024 ELECTION? REVIEWING MINNESOTA’S ROLE IN THE MOVEMENT TO BAN DONALD TRUMP FROM THE BALLOT

January 12, 2024

By Callan Showers, Volume 108 Staff Member On November 2, 2023, the Minnesota Supreme Court heard oral arguments on whether Donald Trump can lawfully appear on Minnesota’s ballots in the 2024 Presidential election due to his participation in efforts to overthrow the 2020 election, culminating…

A HAZY FIVE HOURS: MINNESOTA SHOULD NOT REINVENT THE WHEEL IN ADDRESSING THC BEVERAGES IN RESTAURANTS

November 22, 2023

By Shannon Schooley, Volume 108 Staff Member In 2023, Minnesota legalized recreational cannabis.[1] Although Minnesota followed twenty-two states and the District of Columbia in doing so,[2] its legal landscape presents unique regulatory challenges.[3] Minnesota’s full-scale recreational legalization comes on the heels of a partial legalization…