This Note examines the disparate treatment of greenhouse gas (GHG) emissions in the regulatory cost–benefit analysis and the National Environmental Policy Act (NEPA) review contexts. In Zero Zone, Inc. v. United States Department of Energy, the Seventh Circuit upheld the use of the social cost of carbon (SCC) when agencies consider GHG emissions in their cost–benefit analyses. At the same time, courts have almost uniformly rejected...
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Shortly after John Wilkes Booth assassinated Abraham Lincoln on April 14, 1865, President Andrew Johnson directed that Booth’s alleged coconspirators be tried in a makeshift military tribunal, rather than in the Article III court that was open for business just a few blocks from Ford’s Theatre. Johnson’s decision implicated a fundamental constitutional question that was heatedly debated throughout the Civil War: When, if ever, may the federal...
Employers seeking to test job applicants for strength or speed while adhering to the mandates of Title VII often use gender-normed physical-ability tests. Gender-normed tests set different raw cutoffs for male and female applicants such that each class would be expected to have roughly equal pass rates. This practice has helped employers—especially law enforcement agencies—retain physical hiring standards while mitigating their disparate...
The 2016 presidential election was one of the most divisive in recent memory, but it produced a surprising bipartisan consensus. Donald Trump, Hillary Clinton, and Bernie Sanders all agreed that U.S. trade agreements should be, but are not, “fair.” Although it...
Professor Robert Ferguson enriched all of our lives. The man lived by and luxuriated in words. They are important to all of us, but they had a particularly magical significance to Robert. He chose them carefully, crafted their construction, and gloried in their rhythm. He encouraged all of us—his colleagues, students, friends, and […]
“But always, always, / A man must wait the final day, and no man / Should ever be called happy before burial.” So warns the narrator of Ovid’s Metamorphoses, in recounting how Cadmus founded Thebes. This dark pronouncement underscores the caprice of fate, to which Cadmus himself would fall prey. Were Robert Ferguson here, […]
There is an aspect of criminal procedure decisions that has for too long gone unnoticed, unrecognized, and unremarked upon. Embedded in the Supreme Court’s criminal procedure jurisprudence—at times hidden in plain sight, at other times hidden below the surface—are asides about what it means to be a “good citizen.” The good citizen, for example, is willing to aid the police, willingly waives their right to silence, and welcomes police...
County of Los Angeles v. Mendez, the Supreme Court’s recent decision rejecting shooting victims’ excessive force claims, has been written off as yet another case in which police violence has no civil rights consequences. The Court found that the deputies who shot Jennifer Garcia and Angel Mendez fifteen times used reasonable force because Mendez was holding a BB gun. But the deputies barged in on Garcia and Mendez while they were napping...
Introduction President Donald Trump has quickly marshalled the powers of the presidency to challenge President Barack Obama’s environmental legacy. Facing an increasingly intransigent Congress, the Obama Administration placed significant emphasis on rulemaking and other administrative actions to push its progressive agenda. Whatever the merits of this approach, many of these actions are not safe from […]
Early in 2013, in the midst of interviews conducted by several upstate bar associations reviewing candidates for a seat on the New York Court of Appeals, I sat down at lunch and met Sheila Abdus-Salaam. I was not in my element, and I’m sure she noticed that when she decided to sit next to […]