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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

Definite Convictions: United States v. Alt and the Seventh Circuit’s Prohibition on Defining “Beyond a Reasonable Doubt”

November 30, 2024

By SAMUEL BUISMAN. Full Text. The Seventh Circuit prohibits judges and attorneys from defining “beyond a reasonable doubt” to jurors. While United States v. Alt crystalized this prohibition in early 2023, the circuit has effectively banned definition of the phrase for much longer. Yet, a growing consensus of psychological research into the standard reveals that…

As Punishment for Arrests: Involuntary Servitude Under the Housekeeping Exception to the Thirteenth Amendment

November 30, 2024

By ELISSA BOWLING. Full Text. The Thirteenth Amendment reads: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” Yet, in contemporary American jails and prisons, pretrial detainees have been forced to perform…

May Contain Peanuts, Eggs, and a “Natural” Solution: How to Challenge Food Manufacturers’ Harmful Use of Precautionary Allergen Labels

November 30, 2024

By JJ MARK. Full Text. Food allergies are one of the most pressing health issues of our time. Around thirty-three million Americans currently have food allergies, thirteen million of which are severe or life-threatening. These numbers continue to increase at alarming rates, with an estimated one in thirteen children being diagnosed with food allergies every…

Protecting Minnesota’s Whistleblowers: Ending the Application of McDonnell Douglas to the Minnesota Whistleblower Act

December 31, 2024

By EDDIE C. BRODY. Full Text. Whistleblowers are critical to society, speaking out to protect the public from corporate and government wrongdoing. Employers often retaliate against employees who speak out, attempting to deter employees from blowing the whistle. Whistleblower protection statutes seek to protect those who suffer from retaliation, providing a judicial remedy for whistleblowers.…

Forgotten Victims: Exploring the Right to Family Integrity as a Form of Redress for Children of Wrongfully Convicted Parents

December 31, 2024

By EMILY BYERS OLSON. Full Text. Almost five million children in the United States have had a parent incarcerated at some point in their lives. Children who grow up with an incarcerated parent face immense challenges, including mental health issues, problems at school, economic hardship, and the propensity to participate in criminal activity themselves. When…

“Key” Tam: Giving Teeth to Federal Data Security Enforcement

December 31, 2024

By BRANDON STOTTLER. Full Text. Data breaches wreak havoc on data-handling entities, weigh heavily on the minds and hearts of breach victims, and elude the efforts of regulators and scholars alike. Since 2005, declared the “Year of the Data Breach,” every year has seen an increase in the number and impact of breaches. Data breaches…

Asking the Right Questions: An Emergency Action Exception to the Major Questions Doctrine

April 30, 2025

By MARK HAGER. Full Text. Congress delegates broad discretionary power to administrative agencies to respond to emergency situations, taking advantage of their extraordinary expertise and response speed. Yet these delegations are defined by a judicial rule known as the “Major Questions Doctrine.” The Major Questions Doctrine seeks to protect the separation of powers by preventing…

Who Watches the Watchers?: FINRA, Self-Regulatory Organizations, and the Next Evolution of Appointment and Removal Jurisprudence

April 30, 2025

By HANS M. FRANK-HOLZNER. Full Text. There are private, non-profit corporations exercising significant executive power. Known as self-regulatory organizations (SROs) these non-governmental organizations make binding rules and sometimes enforce statutory law governing massive industries. One such SRO is the Financial Industry Regulatory Authority (FINRA). In 2022 alone, FINRA permanently barred 227 individuals and suspended 328…

Building Bridges: Queer Rights in and out of the Courts

May 25, 2025

By KAZ LANE. Full Text. It is unclear whether the Equal Protection Clause of the Fourteenth Amendment prohibits states from differentiating between people based solely on their sexual orientation and/or gender identity. This Note analyzes the Supreme Court’s tiers of scrutiny—rational basis review, intermediate scrutiny, and strict scrutiny—to argue that a new suspect class is…

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

The H-4 Dreamers

March 5, 2018

THE H-4 DREAMERS: PROVIDING A FUTURE FOR THE CHILDREN OF H-1B VISA HOLDERS By: Frances Fink, Volume 102 Staff Member In September 2017, President Donald Trump ordered an end to the Deferred Action for Childhood Arrivals program (“DACA”).[1] The program provided protection from deportation for…

From Bulbs to Bitcoins

March 5, 2018

FROM BULBS TO BITCOINS: THE LEGALITY OF CORPORATE BANKING RESTRICTIONS ON CREDIT CARD CRYPTO-CURRENCY PURCHASES By: Peter G. Economou, Vol. 102 Staff Member The modern world is one of exponential technological innovation and growth. From drone delivery services and autonomous vehicles, to artificially intelligent personal…

Waiting on You, SEC

March 4, 2018

WAITING ON YOU, SEC: ARE CRYPTOCURRENCIES SECURITIES OR NOT? By: William Paterson, Volume 102 Staff Member Love it or hate it, cryptocurrency[1] is likely here to stay. Although confusing to many, entirely unknown to some, or disdained by others, cryptocurrencies have found a niche.[2] This…

Net Neutrality

February 28, 2018

NET NEUTRALITY: A SOLUTION TO A PROBLEM OR A SOLUTION IN SEARCH OF A PROBLEM? By: Tash Bottum, Volume 102 Staff Member The internet is everywhere. The last two decades have seen extraordinary growth in internet use, investment and innovation.[1] In order to ensure continual…

Clearinghouses

February 28, 2018

CLEARING HOUSES: THE ROAD MORE TRAVELLED[1] By: James Patterson, Volume 102 Staff Member Imagine two roads running through a rural county. One is ungraded, dark, and winding. The other is straight, well lit, and nicely paved. Imagine also that the county’s roads have tolls that…

Of T-Shirts and Tea Parties

February 27, 2018

OF T-SHIRTS AND TEA PARTIES: MINNESOTA VOTERS ALLIANCE V. MANSKY AND THE MEANING OF “POLITICAL” By: David A. LaBerge, Volume 102 Staff Member In Minnesota, wearing political clothing to a polling place can land you a petty misdemeanor and keep you from casting your vote.[1]…

Unlocking Fifth Amendment Considerations in State v. Diamond

February 23, 2018

UNLOCKING FIFTH AMENDMENT CONSIDERATIONS IN STATE V. DIAMOND: WHY REMOVING THE FINGERPRINT PASSWORD CAPABILITY ON YOUR CELL PHONE IS IN YOUR BEST INTEREST By: Jordan Dritz, Volume 102 Staff Member In the age of smart phones, people regularly protect content on their devices through passcodes.…

What Trump Can Learn from Tricky Dick

February 20, 2018

WHAT TRUMP CAN LEARN FROM TRICKY DICK: AN OVERVIEW OF WHETHER THE PRESIDENT CAN FIRE SPECIAL COUNSEL ROBERT MUELLER By: Robert Wild, Volume 102 Staff Member It has been rumored over the past few months that President Donald Trump has considered firing Special Counsel Robert…

“O Vengeance!—Why What an Ass Am I?”

February 20, 2018

“O VENGEANCE!—WHY WHAT AN ASS AM I?”[1]: LOOKING PAST THE REVENGE PLOT OF THE AT&T-TIME WARNER MERGER By: Derek Waller, Volume 102 Staff Member Even before the Department of Justice (DOJ) sued to block the AT&T’s merger with Time Warner (CNN’s parent company), reporters and…

Too Much Information?

February 16, 2018

TOO MUCH INFORMATION? BALANCING DISCLOSURE AND PRIVACY INTERESTS IN MAKING DOMESTIC ABUSE A MATTER OF PUBLIC RECORD By: April Will, Volume 102 Staff Member In the modern age of internet and “app” dating, anyone can fire up a Google search and evaluate a potential partner.…