Predicting Federal Third-Party Funding Regulation

Third-party funding is a global phenomenon, although regulatory enforcement is local. Regulatory approaches vary widely from country to country and within countries, especially in federal legal systems, such as Canada, Australia, and the United States. The United States federal government is learning about third-party funding with an eye toward potential future regulation. Congress has been investigating funding, as evidenced by testimony in congressional hearings, proposed federal legislation, and a nonpartisan study on third-party funding by the Government Accountability Office. In addition, after more than a decade of observation, the United States Federal Civil Rules Advisory Committee recently formed a committee to explore whether to change the Federal Rules to address third-party funding. The United States federal government takes these steps against the patchwork quilt of conflicting and contrasting state regulations regarding third-party funding. This Article explores how federalism affects third-party funding in the United States. Specifically, it explores the likely effects of future third-party funding regulation at the federal level in conjunction with existing state regulations. Moreover, this Article presents various benefits and drawbacks that the United States federal government should consider when deciding whether to regulate TPF directly. It predicts whether the United States federal government will regulate third-party funding and, if so, how. Finally, this Article concludes by suggesting avenues for future inquiry

Litigating Predator Management

Despite significant gains over the last half-century, predators such as mountain lions, wolves, and bears are in the crosshairs once again. Scientific management, democratic principles, and the holding of wildlife resources in trust for the public are all foundational pillars of the North American Model for Wildlife Conservation, yet state wildlife agencies and legislatures routinely fail to uphold these values where predators are concerned. Many of these tensions were thrust into the public consciousness in 2020 when gray wolves were temporarily delisted under the Endangered Species Act (ESA), resulting in a disastrous wolf hunting season in Wisconsin. States that have managed mountain lion and wolf populations for years are now stripping protections, significantly increasing hunting quotas, and legalizing long-forbidden hunting methods. The growing tensions over predator management have spilled into courtrooms across the nation, with animal rights and environmental advocacy groups actively litigating predator hunting in many states. This Article examines past and present legal challenges that aim to overturn state predator management schemes. After building a database of predator hunting litigation cases, I taxonomized them into distinct categories: federal claims based on the ESA, National Environmental Policy Act (NEPA), or public lands statutes; state informational challenges; state procedural claims; substantive challenges based on state law; animal welfare laws; tribal reserved treaty rights; and the public trust doctrine. Notably, this research indicates that few challenges have been successful. The confluence between the nature of litigating against a state government and the structure of American wildlife law makes winning incredibly difficult. State wildlife agencies have vast authority under exceedingly broad legislative delegations, and agencies are given significant deference on wildlife science issues despite routinely relying on fallacious logic and a paucity of data. Further, hunting is privileged over other values and management tools. Suggestions to improve state predator management include the use of experimental regulations to improve scientific data, changes to the structure of wildlife governance, and revamping the public trust doctrine for wildlife

Third-Party Litigation Funding

As the legal system confronts rising litigation costs, technological disruption, and global investment in legal claims, the discussion around TPLF is both urgent and overdue. This symposium issue provides ways to illuminate the path forward— through scholarly engagement, critical analysis, and policy innovation

Water Reallocation in the West: Government and Markets

Water is multifaceted: it is a human right, a production input, a sacred element, an investment asset, public property, and a fugitive resource. Its reallocation is inherently difficult because of its natural characteristics and its hybrid nature that combines public ownership with private rights. The future of the U.S. West necessitates the reallocation of water resources, even with potential new water supplies. As climate change intensifies, reallocation will take various forms—all involving government intervention to some degree, from eminent domain to competitive markets. For water markets to function effectively, they require robust institutional infrastructure to prevent issues like imperfect information and market abuse. Water markets often spark controversy, particularly with the recent involvement of large financial actors in water rights transactions. Australia’s experience shows that an active water market, while not without challenges, can alleviate the costs of drought. This example also highlights the necessity of regulating markets to ensure fair competition as they grow more active and complex. While speculation poses a risk, the solution lies in regulating market practices rather than abandoning water markets. We cannot throw out the baby—water markets— with the bathwater—the unsavory market practices some may engage in

Ultra Vires Review of Federal Agency Action Made Simple(r)

The law governing ultra vires review seeking injunctive relief to challenge statutory violations by federal agencies is a mess. Although administrative law generally limits judicial review to final actions, a substantial body of caselaw holds that this type of ultra vires review can reach interlocutory actions, vastly expanding judicial reach. Although administrative law now insists that federal courts must exercise independent judgment when reviewing agency statutory interpretations, caselaw limits this type of ultra vires review to correcting only the most spectacular statutory violations. In addition, caselaw ignores or garbles the problem of determining which types of plaintiffs qualify to invoke a cause of action for ultra vires review. Ultra vires review for injunctive relief to challenge statutory violations would make more sense if courts thought about it the same way they did back in 1946 when the Administrative Procedure Act was enacted. Under the well-understood framework of that time, a plaintiff could seek injunctive relief to redress a “legal wrong” caused by a “final” agency action in a suit in which the court could exercise independent judgment over issues of law. Students of administrative law will find this framework familiar because Congress basically codified it in the APA. By the transitive postulate, this Article’s proposal boils down to the idea that ultra vires review should work much like APA review did back in 1946. The confusion that burdens ultra vires review would largely disappear if courts remembered this basic equivalence

Drone Assassinations: The Limits of the President’s Constitutional Authority to Strike Foreign Military Officers with Drones Without Congressional Approval

While drones are a significant asset to the United States Military, their presence also presents unique challenges. The ability to stalk and engage in assassination style killings of high-ranking foreign military officials without ever placing United States forces presents a new issue where the President can intrude on Congress’s power to declare war. This is especially true with regard to the War Powers Resolution, which requires military action without congressional authorization to be limited in nature, scope, and duration. While the Soleimani strike fell short of violating this part of the War Powers Resolution test, perhaps only due to the benefit of hindsight, it still serves as a chilling warning of how quickly drone technology can alter international relations in deadly ways

No Knock? No Case: Prosecutorial Deterrence as a Countermeasure to No-Knock Warrants

The high-profile deaths of Amir Locke and Breonna Taylor ignited a national debate surrounding the legitimacy of no-knock warrants. Their deaths are part of a cycle of reaction and inaction that permeates this debate. As the impacted communities and segments of the populace respond by demanding that federal and state legislatures abolish or severely restrict the use of no-knock warrants, they are met with inaction. The legislative bodies have failed to pass laws banning the warrants and judges continue to sign them. This inaction continues to undermine the public’s trust in law enforcement and challenges the legitimacy of a democracy that permits the cycle of reaction and inaction to persist. This Article asserts that a viable solution to break this cycle rests within the purview of prosecutors, who may deter law enforcement from requesting and executing no-knock warrants through the implementation of office policies that discourage their use. Specifically, under this proposed prosecutorial deterrence model, prosecutors may deter law enforcement’s use of no-knock warrants in criminal investigations by administratively suppressing evidence obtained via no-knock warrants or by refusing to pursue cases where no-knock warrants were obtained and executed. This approach necessitates a concerted effort in fostering open communication with law enforcement agencies and fostering transparency within the community. When done correctly, the prosecutorial deterrence model embraces the notion that duly elected officials should be accessible, responsive, and accountable to the people

Sometimes Is Not Enough: A Legislative Solution to the Failures of the Federal Government in Compensating Civilians Harmed by U.S. Military Action

The United States has a large military presence abroad. With that presence has come instances of human rights abuses. This Note highlights the issues of civilian deaths and poisoning at the hands of the U.S. military, focusing specifically on the U.S.’s Middle Eastern theater of operations. It advocates for a comprehensive statutory scheme that requires uniform compensation to civilians while also requiring public disclosures to ensure government accountability. Previous research has focused on the cause of the U.S. military’s human rights violations abroad and methods of addressing physical and environmental harms separately. This Note proposes an approach that encompasses both harms in one solution to ensure that abuses are taken seriously and dealt with effectively

Relative Stare Decisis

Stare decisis stands at a crossroads. The Supreme Court has recently overturned landmark precedents on abortion rights, affirmative action, and administrative deference, while signaling its willingness to reconsider other long-settled doctrines. Amid this tumult, one principle appears to command broad consensus: Stare decisis carries heightened force in statutory cases, where Congress can override the Court’s decisions through ordinary legislation, and less force in constitutional cases, where override can only be accomplished through the onerous Article V amendment process. Yet this doctrine of “relative stare decisis” rests on remarkably fragile foundations. The principal justifications offered by its adherents are underdeveloped or unpersuasive, and several compelling critiques have gone unanswered. Perhaps most troublingly, courts routinely and illogically invoke this broad generalization about two heterogeneous categories of decisions as a reason to follow precedent in particular cases. This Article reconstructs relative stare decisis from the ground up, developing two distinct justifications for treating statutory and constitutional precedents differently. The error-costs rationale provides a more rigorous foundation for familiar intuitions about the significance of legislative override. The epistemic rationale explains why statutory precedents that survive legislative override reflect greater accumulated wisdom than constitutional precedents. Because the strength of these justifications varies significantly within statutory and constitutional domains, as well as across the statutory-constitutional divide, it is necessary to calibrate the strength of stare decisis on a case-by-case basis. To that end, the Article develops a practical toolkit for balancing stability and reliance interests against error costs, while also accounting for the epistemic value of statutory precedents that have stood the test of time

Does Third Party Litigation Funding Need Regulations on Consumer Protection

Transcript of a roundtable discussion during the Third-Party Litigation Symposium at the S.J. Quinney College of La