Dirty Water

Plastics are taking over. Every day, humans are exposed to plastic pollutants in a variety of ways. From the water we use to water crops in the field, to the water in our taps, to the liquids we drink from plastic containers, it can be found virtually anywhere you look. Not only is it everywhere in the environment, but it is also within us. It builds up in our bodies. Plastics have become a major public health concern; researchers estimate that the total healthcare cost related to plastic chemicals may be as much as $250 billion.[1] Water has always been an avenue for harmful substances to enter the human body and detrimentally affect health. Early on it was through waterborne illnesses, but thanks to the disinfection process in water treatment plants, waterborne illnesses in the United States are no longer the major threat they once were.[2] Now, plastic contaminants can enter these water sources and can slip past water treatment if not properly addressed.[3] Sometimes, the plastic contaminants are part of the packaging of our food and beverages, slowly leaching in prior to being consumed directly.[4] Other times, the plastics are found in the food we eat because that food was grown with fertilizer made of sewage sludge or the fish being consumed were caught from an ocean riddled with plastics.[5] There are tens of thousands of unregulated industrial substances manufactured and used in the United States.[6] This Article focuses on three specific to plastic and its manufacturing process: microplastics, phthalates, and BPAs. These substances have been attributed to many known health harms and potentially more that have yet to be identified. The research is still new and much is emerging, but what we do know is who is creating the problem. From big oil companies and plastics manufacturers to creators of textiles and tires to investors who all contribute to the problem, how can these entities be held accountable for the problems they caused? Existing regulations do not encompass much, with federal agencies less able to act due to Congress and the courts. One path that could hold manufacturers accountable for the products that are raising public health red flags is through Extended Producer Responsibility (EPR).[7] This places the burden on manufacturers to take responsibility for their products at all stages of the product’s lifecycle.[8] Public health litigation (PHL) can deter manufacturers by holding them accountable for health harms.[9] Extended Producer Responsibility and Public Health Litigation can work together: once EPR laws and standards are in the books, plaintiffs can use PHL to further their efforts by making sure manufacturers are following the rules

Novel Ways of Creating Experiential ADR Problems

In legal education, experiential learning has become a vital tool for equipping students with the practical skills necessary for success in Alternative Dispute Resolution (ADR). This article explores three innovative methods for creating dynamic and realistic ADR problems: engaging teaching fellows to develop negotiation simulations, leveraging international LL.M. students to craft cross-cultural hypotheticals, and using artificial intelligence to generate customized exercises efficiently. Each approach offers unique benefits, from fostering deeper student investment in problem design to promoting comparative legal understanding and streamlining the creation of tailored learning experiences. By integrating these methods, educators can enhance student engagement, bridge the gap between theory and practice, and better prepare future legal professionals for the complexities of real-world dispute resolution

What Rerum Novarum Did and Did Not Do for the American Labor Movement, 1891-1935

The papal encyclical Rerum Novarum (1891), a statement which defended workers’ human rights, has been celebrated by both leftwing and rightwing Christians as a central document in the history of the Church. To trade union leaders of the late nineteenth and twentieth centuries, it was a powerful tool for reminding workers that the Holy Father supported fair wages and healthy working conditions for all God’s people. Just the same, for business leaders of the several Red Scares (especially 1917-1920 and 1945-1955), it became a powerful tool in discrediting socialist demands as both “materialistic” and “atheistic.” This piece illustrates that while Rerum Novarum has been very helpful in catalyzing the public recognition of trade unions in the United States, its rejection of “socialism” is also partially responsible for the challenges workers have faced in expanding the power of labor to set the terms of industrial justice outside the workplace

2025--Skrmetti and the Future of Gender Affirming Care: Law, Policy, and Public Health Perils

Each spring, the Center for Health Law Studies at Saint Louis University hosts its annual Health Law Symposium featuring leading experts and scholars. Conference topics focus on groundbreaking issues in health law and policy. The symposium proceedings are published in the Saint Louis University Journal of Health Law & Policy.https://scholarship.law.slu.edu/jhlpsymposia/1004/thumbnail.jp

Originalism and the Chronological Separation of Powers

Inspired by the 2024 Childress Lecture, this essay considers originalism in two distinct guises: first, as a method of constitutional interpretation and then, as a politically-coded signal used to ensure predictability of judicial behavior. Regarding interpretation, the essay critiques originalism and its claim as a determinative source of constitutional understanding as a violation of the oft-overlooked chronological separation of powers embedded in the Constitution. Though originalism is often styled as a way of checking the power of judges, it threatens to impose a tyranny of the past that runs counter to a constitutional structure built upon the diffusion of power. However, in the twenty-first century, originalism has become more than an interpretive tool. With the elevated stakes of modern judicial appointments, originalism has taken on a new form, rooted in political resistance to particular cases, such as Brown and Roe, as a signal that judges will arrive at predictable constitutional conclusions. The essay argues that both originalism the interpretive method and originalism the political signaling tool distort modern constitutional interpretation

The Value of a Statistical Life: From Skin in the Game to Vision Zero

This essay discusses justice issues surrounding occupational safety and health and assesses the ethical legitimacy—the justice—of regulatory cost benefit analysis when the costs in question involve the risks and realization of workplace injury and fatalities. The current “value of a statistical life” for legal-regulatory purposes is 13.1 million dollars. While economists are careful to say that this figure does not “really” represent an attempt to value any particular life, the purpose of even calculating the number is to provide an “aggregated” statistical justification for saying “no” to rules requiring safer work. This seems acceptable until you, or someone you love, is a person at significant risk of being killed. One of the earliest moral and religious challenges, central to constructing modern employment law, was how to deal with workplace harm. Scholars have shown that the perceived inability of tort law to remedy workplace injury and fatality led to a veritable remaking of American law—through establishment of workers’ compensation—that was, in effect, the prelude to the administrative state, and therefore effectively of all employment law. The moral-ethical dilemma—of work related injury and death—remains a central problem of workplace law. The AFL-CIO estimates that in 2022—the most recent year for which data was available as of the writing of this essay—5,486 employees were killed on the job in the United States; and 120,000 workers died from occupational diseases. During a time of modern, putatively-safe working conditions, these statistics seem almost incredible. At first blush, moral policymaking suggests that the societal reaction to death and injury at work should simply be to stop killing workers. But requiring safer workplaces costs “money.” And the moral question is: how much as a society are we willing to spend to prevent death in the workplace? “Cost-benefit considerations” are inherently moral. One who—because of racial or class positioning in a society, for example—is not likely to be harmed by an activity, may have a great deal of difficulty accurately assessing the moral significance of a risk of harm for others arising from the activity; or in determining whether a certain quantity of risk should be assumed by workers in the broader social interest. Regulatory “weighing” is the province of economists, not that of workers who are actually exposed to workplace risks of harm and death. Those who argue that strong emotional responses to “fearsome risks” are irrational because of the risks’ putatively low probabilities of leading to harm are typically—perhaps predictably—not exposed to such risks and may suffer from an upper class “anti-safety bias.” It will always be possible to articulate the costs to employers of making workplaces safer, and the benefits to employers of not having to make workplaces safer. Assessment of cost on the worker’s side of the ledger is much more difficult to quantify because it involves the quasi-mystical—and not dollar expressible—question of the worth of life. And the ethical and democratic problem posed is whether the persons asking such questions have sufficient “skin in the game” to be asking the questions or evaluating the answers. The essay reflects on the EU’s “Vision Zero” goal of killing no one in the workplace. It is one thing to admit that it is presently impossible to avoid killing workers on the job. It is another thing to insist that the national goal should be killing no workers at work. Arguing for such insistence, the essay concludes by observing that employers are in fact capable of being much safer than they are

Keynote Address: The Future of Constitutional Interpretation

The American constitutional order is in a state of flux, caused in part by the Supreme Court and its embrace of originalism. The originalist ideology contends that the Constitution has one true historically discoverable meaning, and interpreters must understand the document today the same way the public purportedly understood it when it was enacted. While its advocates insist that originalism promotes objectivity and democratic legitimacy, closer examination reveals that it is little more than a political tool designed to entrench 18th-century power hierarchies by transforming some of the nation’s lowest historical shortcomings into its highest legal standards. The author argues that originalism is incompatible with the multiracial democracy the Constitution demands, and proposes an alternative legal interpretive framework called inclusive constitutionalism. The future of constitutional interpretation should not focus on a point in time; it should focus on the liberatory principles of the Reconstruction Amendments, and the achievement of a real, inclusive democracy

Judicial Jujitsu in the New Originalism

The Supreme Court’s adoption of the “history and tradition” test has prompted a substantial body of critique. Most of that critique has focused on problems connected with historical analysis, but additional aspects of the test’s application warrant scrutiny. This essay focuses on one of those: how the Supreme Court redefined what counts as evidence of a right in Dobbs v. Jackson Women’s Health Organization. The Court applied the same test in Dobbs that it had in New York State Rifle and Pistol Ass’n v. Bruen in an opposite manner to reach the opposite result. In Bruen, the Court found rights in the absence of state regulation, while in Dobbs, the Court refused to find rights without evidence of positive limitations on state regulation. This sleight-of-hand application was just one of several at the Court’s disposal. By identifying the ways the doctrine can be manipulated, this essay seeks to reveal opportunities to resist efforts to roll back additional rights

Kill ‘em With Lies: The False Narrative of the American Execution Laboratory

The Supreme Court’s narrative regarding capital punishment, in keeping with the laboratories of democracy theory, boasts the consistent development of more humane methods of execution. Contrary to the Court’s narrative, however, states are not driven by the desire to create humane execution; they are merely striving to keep state-sanctioned killing alive. Examination reveals that execution methods are adopted on best guess and are retained without post-adoption verification of their effectiveness, humanity or painlessness. As abolitionist ideals close in on capital punishment, legislative shortcuts, willful ignorance, and secrecy allow new methods to propagate. As those tactics begin to fail, states resort to reinstating outdated execution methods, further evidencing their true motivations. Against this backdrop, there is properly placed skepticism of humanity of the newest execution method, nitrogen hypoxia