The Future of Alaska’s Wetlands in a Post-Sackett World

In 2023, the United States Supreme Court decided Sackett v. Environmental Protection Agency, which effectively restricted the United States Army Corps of Engineers’ (“USACE”) and the Environmental Protection Agency’s (EPA) ability to regulate development of wetlands. The State of Alaska submitted an amicus brief to the Court on behalf of the petitioners, the Sackett family. In the wake of the decision, Governor Dunleavy praised the decision by the Court, emphasizing that the decision provided the state more autonomy over its own wetlands. Still, there is concern by environmentalists that the State does not have the resources to protect the wetlands to the extent necessary without federal funding and support. Alaska encompasses more than half of America’s wetlands, so the challenge for the State’s environmental programs is substantial. This Note will explore the ramifications of Sackett and what it means for Alaska. Then, it will examine what Alaska must do to continue to protect its wetlands and survey its progress following the Sackett decision. Further, it will examine how federal regulations under the EPA will fare in a post-Chevron world. Finally, this Note will offer recommendations for best practices by the State to ensure Alaska protects its vital wetlands, as well as insight into how best to prepare for the inevitability of further litigation over these areas

The Good, the Bad, and the Ugly: Redistricting Commissions in the 2021 Cycle

In the last decade, redistricting commissions have proliferated across the United States as a means of reducing partisan gerrymandering. This article provides a comprehensive evaluation of their performance using both qualitative and quantitative analysis. Drawing on redistricting data from all fifty states between 2021 and 2024, we analyze how different commission designs affected partisan fairness, competitiveness, and adherence to traditional principles like compactness and preservation of communities of interest. Our analysis reveals that autonomous commissions with final map-drawing authority, balanced bipartisan processes with multiple non-partisan actors, and binding judicial review consistently produced redistricting plans with lower partisan bias and higher electoral competition. These successful commissions were typically established through popular ballot initiatives. Conversely, commissions serving only in an advisory role, dominated by a single party, or lacking clear judicial oversight frequently saw their work undermined by legislatures pursuing partisan advantage. We conclude that autonomous commissions, created by and composed of citizens, provide the most effective available approach for curbing gerrymandering. The article concludes with recommendations for expanding the commission model for the 2030 redistricting cycle

Jarkesy’s Stakes for the SEC

This Article examines the implications of the Supreme Court’s decision in SEC v. Jarkesy for the Securities and Exchange Commission (“SEC” or “Commission”). In Jarkesy, the Court held that Congress cannot assign the adjudication of securities antifraud violations seeking civil penalties to an administrative agency without a jury trial, for such punitive actions involve “private rights.” Although this ruling might suggest a reduction in SEC enforcement actions due to the higher costs of federal jury trials, the SEC had already adjusted its practices following Lucia v. SEC in 2018. The Commission shifted away from using administrative law judges for civil penalties, focusing instead on cases less susceptible to constitutional challenges. Jarkesy presents both immediate and long-term challenges for the SEC. Its direct impact is limited because it affects a type of case the SEC has nearly abandoned. However, it poses significant long-term risks because litigants may attempt to extend its applicability to other enforcement actions, increasing litigation and uncertainty in administrative law. The decision also affects the SEC’s enforcement and settlement practices, potentially hindering its ability to address violations efficiently and serve the public interest. Using a novel dataset, this Article explores these institutional dynamics, analyzing the SEC’s adjudication program and assessing the broader implications of Jarkesy for administrative enforcement

Fair Notice Is a Sociopolitical Choice

This Article reframes a deadlocked debate about “fair notice” as a justification for statutory interpretation methods by developing a historical account of a crucial, overlooked dimension: legislatures’ and laypeople’s value judgments about notice. On one side of the debate are idealists who contend, on due process grounds, that judges should embrace interpretive methods and theories based on how well they promote fair notice. On the other side are realists who counter, on empirical grounds, that perfect notice is impossible. Each side continues to talk past the other because we lack a fleshed-out framework for evaluating when the fair-notice basis of a given interpretive method or theory is sufficient or superior to that of others. In the vast terrain of this debate beyond the contexts of the rule of lenity and the void-for-vagueness doctrine, the stalemate has left critical questions undertheorized: Given notice’s real-world costs and limits, how much notice is “enough” for judges to promote through statutory interpretation, and why should judges promote more than enough, less than enough, or just enough notice? The Article uncovers two features of notice with the goal of developing a vocabulary that can be used to resolve the impasse on normative grounds. First, legislatures and laypeople are always in the background making choices about what constitutes “good” or “fair” notice, and, most importantly, they influence how different forms and costs of notice are distributed across different segments of society. Second, these choices have produced deep societal inequalities of notice. Two major transformations in the history of fair notice illuminate these features. First, legislatures made notice fictional by prioritizing a distribution of notice that was “efficient” rather than audience neutral, redistributive, or notice maximizing. Second, and in tension with the conventional idea that laypeople are inherently notice-phobic, laypeople once developed a mass political culture—eventually abandoned by the early twentieth century—that involved reading not just statutes but also legislative history. From this history, the Article ultimately argues that because nonjudicial choices pertaining to notice are always in the backdrop of judicial invocations of fair notice in statutory interpretation, judges who want to embrace fair notice need to have a theory of whether and how to account for these choices—especially choices influencing the distribution of notice across society. While this Article leaves for another time the task of resolving how exactly judges should account for these choices, it preliminarily sketches two potential approaches. It first traces out a hands-off approach that is guided by judicial restraint and that reflects the choices of legislatures (and the choices of the people vis-à-vis legislatures). Second, and in the alternative, it traces out a law-and-political-economy approach to imagining a world of “enough” notice. Finally, the Article explains how the history of notice offers two interventions for the methodology of evaluating fair notice. First, the history can help scholars better determine what constitutes “good” or “fair” notice by revealing the range of possibilities—and limits—of notice. Second, the history demonstrates how fair notice has been contingent on changing historical circumstances, which calls into question the long-term stability of fair notice in statutory interpretation theory

Volume 109, Number 1 (2025)

https://scholarship.law.duke.edu/judicature/1032/thumbnail.jp

Chevron Was Not, and Cannot Be, Overruled: The Dullness of Loper Bright

As expected, the Supreme Court declared, in Loper Bright Enterprises. v. Raimondo, that Chevron is overruled. But the Court did not understand the decision that it claimed to overrule. It focused its criticisms on Chevron\u27s notorious two-step test, but failed to recognize that the decision is a major conceptual advance – the first clear judicial recognition that statutory interpretation is the initial and invariably necessary stage in the process by which administrative agencies enforce the law. Chevron thus revealed a reality that the current Court is powerless to alter. Most administrative statutes are not the normative declarations of the pre-administrative era, but rather instructions to an agency that enable it to implement a social policy. Statutes of this type simply cannot be interpreted by a reviewing court de novo because most of their provisions do not state obligatory rules, but grant discretion to an agency, thereby empowering that agency to formulate the legal requirements that apply to private parties. The Loper Bright decision concedes this, as it must, which renders its opinion incoherent and ineffective. While it will certainly lead to reversals of particular administrative regulations that would previously have been upheld, it cannot change the basic features of our modern administrative state. The opinion also fails to recognize the essential character of appellate review for administrative decisions, which is not to be part of the primary enforcement process, as it would be for a traditional, court-enforced statute, but to exercise collateral supervision of a separate institution staffed by officials with different training and expertise. This second reality will contribute to the ineffectiveness of Loper Bright because most conscientious courts will simply decline to second-guess the complex and technologically specialized decisions that agencies enact in the course of their enforcement process. Ironically, Loper Bright may inadvertently amplify Chevron\u27s impact in many situations. By abolishing the decision\u27s two-step test, the Court has dispensed with the term ambiguity, an unfortunate misnomer, and allowed reviewing courts to recognize that legislative delegations to agencies are more properly described as open-ended – purposeful delegations to the agency rather than an inaccurate use of language