Challenging the EPA’s Authority to Exempt Concentrated Animal Feeding Operations from EPCRA’s Pollution Reporting Requirements

2022, Past Issues, Print, Volume 54 (2022) Issue 1 (Spring)
Catherine Swett The residents of Arlington and Tonopah, Arizona have some very smelly neighbors—the millions of chickens at Hickman’s Egg Ranch (“Hickman’s”). But an unpleasant odor is just one of the many environmental issues created by the concentrated animal feeding operation (“CAFO”). These two small towns, located just west of Phoenix, also deal with excessive dust, flies, and hazardous chemical emissions. Some residents even complain of nausea and breathing difficulty due to the ammonia released from the decomposing manure in the chicken houses.Full Article.
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Private Solutions to a Public Problem: Next Steps for Section 230

2022, Past Issues, Print, Volume 54 (2022) Issue 1 (Spring)
Tessa R. Patterson Humans do many small things every day that add up to grand numbers. For example, the average human spends about twenty-six years of her life asleep; around thirteen years at work; and four years and six months eating. There are also plenty of small things that, arguably, humans do not do enough. The typical human will only spend three years, one month, and three weeks of their life on vacation; one year and four months exercising; and one year and thirty days doing anything romantic.Full Article.
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PFAS Are Forever: Why Unregulated Agricultural Water Is Not a Girl’s Best Friend

2022, Past Issues, Print, Volume 54 (2022) Issue 1 (Spring)
Sarah Brunswick “Good God, Joe . . . What the hell is that stuff doing in your water?”–Regional Environmental Protection Agency (EPA) ScientistJoe Kiger’s water bill reported that his drinking water contained low levels of perfluorooctanoic acid (PFOA), but said not to worry. He lived in Parkersburg, West Virginia, and much of the town worked at DuPont’s Washington Works plant. His wife, Darlene, was previously married to a DuPont chemist who had bouts of the so-called “Teflon flu” when he worked with too much PFOA. Darlene remembered that he brought home extra PFOA for cleaning dishes and that DuPont had paid for his schooling and secured their mortgage. But she also remembered that he stopped wearing his work clothes home when their second child was born—DuPont had learned that PFOA was…
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Tax, Incorporated: Dynamic Incorporation and the Modern Fiscal State

2022, Past Issues, Print, Volume 54 (2022) Issue 1 (Spring)
Adam B. Thimmesch The U.S. federal structure tasks the states with providing many of the critical services on which individuals rely for their basic needs. State fiscal stability is therefore critical to state residents’ health, economic security, and physical safety, especially in times of macroeconomic hardship. It is unfortunate in this regard that prevailing economic conditions heavily impact states’ revenue streams and that periods of economic recession can be met with state spending that lags recovery. It is also unfortunate that states’ exposure to these downturns is partly attributable to their own policy choices.Virtually all states have enacted balanced budget requirements of some form, with the result that states cannot easily smooth their spending with borrowing during economic downturns. Most states also rely to a large degree on the personal income…
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Lange, Caniglia, and the Myth of Home Exceptionalism

2022, Past Issues, Print, Volume 54 (2022) Issue 1 (Spring)
Ric Simmons For over a hundred years, the Supreme Court has employed rhetoric in its Fourth Amendment cases that supports the concept of “home exceptionalism”—that is, the idea that protecting the home is the “very core” of the Fourth Amendment. Two cases from this year’s Supreme Court term, Lange v. California and Caniglia v. Strom, appear at first to support this doctrine, since a narrow reading of their holdings appears to enhance Fourth Amendment protection of the home.However, a closer examination of Supreme Court doctrine reveals that home exceptionalism is a myth. Although the home does receive small amounts of special protection in some areas, such as the arrest warrant requirement and the protection of curtilage, these special protections are far weaker than the Court’s rhetoric implies. In fact, the recent…
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Surveying Surveillance: A National Study of Police Department Surveillance Technologies

2022, Past Issues, Print, Volume 54 (2022) Issue 1 (Spring)
Mariana Oliver & Matthew B. Kugler Discussions of surveillance practices within U.S. law enforcement agencies often suggest that police departments have ready access to a wide range of high-tech tools. To date, however, most of the empirical evidence regarding police surveillance has come from either qualitative case studies of cities or surveys of the largest departments. While these studies have shed light on the surveillance capacities of large police departments located in larger jurisdictions, our current understanding of police surveillance is limited by a lack of empirical data on police departments in smallerjurisdictions. This study fills this gap by using data from an original nationwide survey of police departments. First, we discuss existing studies of police surveillance access and the legal regimes underlying each type of technology. Next, we use descriptive…
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Vaccine Passports as a Constitutional Right

2022, Past Issues, Print, Volume 54 (2022) Issue 1 (Spring)
Kevin Cope, Ilya Somin, & Alexander Stremitzer Does the U.S. Constitution guarantee a right to a vaccine passport? In the United States and elsewhere, vaccine passports have existed for over a century, but became politically divisive as applied to COVID-19. A consensus has emerged among legal experts that vaccine passports are usuallyconstitutionally permissible. Yet there has been almost no serious analysis about whether a vaccine passport can be a constitutional right: whether a government is constitutionally obligated to exempt fully vaccinated people from many liberty-restricting measures. We argue that, based on existingprecedent, the government may indeed be constitutionally required to exempt the vaccinated from numerous liberty restrictions. Although governments are not constitutionally obligated to impose liberty restricting measures in response to an infectious disease epidemic, where a government—local,state, or national—does so,…
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Justice as Healing: Native Nations and Reconciliation

2022, Past Issues, Print, Volume 54 (2022) Issue 1 (Spring)
Rebecca Tsosie  I am honored to give the Canby Lecture for 2020, and I thank Patty Ferguson-Bohnee and Kate Rosier for their leadership of the Indian Legal Program and for inviting me today. I’m delighted to return, even in a virtual space, to the Sandra Day O’Connor College of Law at Arizona State University (ASU). This was my academic home for over twenty-two years, and I owe so much to this law school and its amazing faculty, past and present. In particular, I honor Judge Canby, who first taught Federal Indian law at ASU in the early days of the law school before there was a formal Indian Legal Program, and who was responsible for recruiting the first Native students to graduate from ASU’s law school. Judge Canby’s intellectual leadership…
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