The Failure of Federal Biotechnology Regulation

The recent court case and state ballot measures regarding mandatory labels for Genetically Modified Organisms (“GMOs”) suggest the need for a deeper conversation about the federal framework for regulating biotechnology. What is it about GMOs that consumers feel they have the “right to know?” Why has a generation of federal biotechnology regulation failed to satisfy consumer concerns? Are those concerns irrational, or is the regulatory structure inadequate? This Article argues that many consumer concerns underlying the labeling movement raise important scientific and extra- scientific questions that have been apparent since the advent of the technology in the 1980s. Moreover, these concerns persist because the Coordinated Framework for Regulation of Biotechnology has failed to respond to them effectively. The Coordinated Framework was based on statutes that pre-existed the technology and thus poorly fit the unique risks of genetic engineering. Today, genetic engineering is on the verge of a radical shift in technology, a shift that has already begun to burst the seams of those old statutes, leaving agencies with no regulatory authority at all over new products. This Article reviews the evidence behind persistent concerns about GMOs, considers the failures of the Coordinated Framework to address the most valid of those concerns, and canvasses policy questions that Congress must consider to more effectively tailor agency authority to address the risks and to enhance the potential of this rapidly-changing field of technology

Cows v. Capitalists: Visions of a Post-Carbon Economy

I was tempted to entitle this book review something like, Why the Farm Bill Is the Key to Our Energy Future (Hint: It\u27s Not About Ethanol, Methane Emissions, or Carbon Sinks). But in addition to being too long to fit across the header of a law review page, such a title would have been slightly misleading. Actually, in Simon Fairlie\u27s view, our future is about ethanol, methane emissions, and carbon sinks - but not in the way our current agricultural policies understand and deal with these subjects

Withdrawing from NAFTA

Since the 2016 campaign, Donald Trump has threatened to withdraw from NAFTA. Can he? The question is complex. For one thing, NAFTA is not a treaty negotiated under the Treaty Clause of the Constitution, but rather a congressional–executive agreement, a creature of dubious con- stitutionality and ill-defined withdrawal and termination parameters. This Article reviews the scope of those restrictions and concludes that unilateral presidential withdrawal from NAFTA, although not without support, is ultimately unlawful. On one hand, unilateral presidential withdrawal would be valid as a matter of international law, and the NAFTA Implementation Act appears to be designed to terminate in the event of a lawful U.S. withdrawal from NAFTA. However, the President probably lacks statutory or constitutional authority to withdraw from NAFTA, and litigants might overcome political question hurdles by argu- ing that the NAFTA Implementation Act should not terminate where the President’s action exceeds the scope of his authority. Finally, because the Legislative Branch possesses constitutional authority over foreign commerce, Congress would also have several political remedies if it wishes to foreclose unilateral executive withdrawal from NAFTA or other congressional–executive agreements

The Failure of Federal Biotechnology Regulation

The recent court case and state ballot measures regarding mandatory labels for Genetically Modified Organisms (“GMOs”) suggest the need for a deeper conversation about the federal framework for regulating biotechnology. What is it about GMOs that consumers feel they have the “right to know?” Why has a generation of federal biotechnology regulation failed to satisfy consumer concerns? Are those concerns irrational, or is the regulatory structure inadequate? This Article argues that many consumer concerns underlying the labeling movement raise important scientific and extra- scientific questions that have been apparent since the advent of the technology in the 1980s. Moreover, these concerns persist because the Coordinated Framework for Regulation of Biotechnology has failed to respond to them effectively. The Coordinated Framework was based on statutes that pre-existed the technology and thus poorly fit the unique risks of genetic engineering. Today, genetic engineering is on the verge of a radical shift in technology, a shift that has already begun to burst the seams of those old statutes, leaving agencies with no regulatory authority at all over new products. This Article reviews the evidence behind persistent concerns about GMOs, considers the failures of the Coordinated Framework to address the most valid of those concerns, and canvasses policy questions that Congress must consider to more effectively tailor agency authority to address the risks and to enhance the potential of this rapidly-changing field of technology

The Cost of Cutting Agricultural Output: Interpreting the Capper-Volstead Act

In Part I, this Article reviews the allegations of production-limiting agreements by cooperatives in the eggs, potatoes, mushrooms, and milk markets. Since the purpose of this Article is to offer a close reading of the Capper-Volstead Act, the Act is laid out in Part II. In Part III, an interpretation based on a textualist reading, supplemented by canons of statutory construction, point to the conclusion that Capper-Volstead does not extend to preproduction agreements to limit supply. Part IV canvasses the (slender) committee reports and (extensive) floor debates, which set forth scant discussion and conflicting statements on the question of production controls. Finally, Part V reviews federal farm policy on supply controls to support the conclusion that Congress did not intend the Act to permit private economic actors to raise consumer prices by limiting production

Sustainable Development and the Reconciliation of Opposites

This Essay proposes a shift in thinking about the project of sustainable development. Many legal scholars have lamented the limitations of the concept: in cases where no win/win outcome can be identified even after the most careful and coordinated measurement, they argue, the old power struggles between proponents of economics, environment, and equity will be entrenched. This Essay agrees that sustainable development, by definition, encompasses irresolvable tensions. But this fact becomes less troubling if we abandon the Enlightenment-influenced rationalism that demands such resolution, and instead consider sustainable development through more anti-rationalist traditions: the analytical psychology of Carl G. Jung, and philosophical Taoism. Both traditions conceive of irreconcilable opposites not only as part of any energetic system but as essential to transformation and growth in the system. The Essay concludes by exploring the emerging bases of agreement between these anti-rationalist epistemologies and the classically rationalist field of quantum mechanics. From these perspectives, the irreconcilability of opposites espoused within the sustainable development concept may represent the concept’s potential rather than its failure

A Luminous Infrared Merger with Two Bipolar Molecular Outflows: ALMA and SMA Observations of NGC 3256

We report ALMA and SMA observations of the luminous infrared merger NGC 3256, the most luminous galaxy within z=0.01. Both of the two merger nuclei separated by 5" (0.8 kpc) on the sky have a compact concentration of molecular gas, i.e., nuclear disks with Sigma_mol > 10^3 Msun pc^-2. The one at the northern nucleus is face-on while the southern nuclear disk is almost edge-on. The northern nucleus is more massive and has molecular arcs and spiral arms around. The high-velocity molecular gas previously found in the system is resolved to two molecular outflows associated with each of the two nuclei. The molecular outflow from the northern nuclear disk is part of a starburst-driven superwind seen nearly pole on. Its maximum velocity is >750 km/s and its mass outflow rate is estimated to be > 60 Msun/yr for a conversion factor N_{H_2}/I_{CO(1-0)}=1x10^20 cm^-2/(K km/s). The outflow from the southern nucleus is a highly collimated bipolar molecular jet seen nearly edge-on. Its line-of-sight velocity increases with distance out to 300 pc from the southern nucleus. Its maximum de-projected velocity is ~2000 km/s for the estimated inclination and should exceed 1000 km/s even allowing for its uncertainty. The mass outflow rate is estimated to be >50 Msun/yr for this outflow. There are possible signs that this southern outflow has been driven by a bipolar radio jet from an AGN that became inactive very recently. The sum of these outflow rates, although subject to the uncertainty in the molecular mass estimate, either exceeds or compares to the total star formation rate in NGC 3256. The feedback from nuclear activities in the form of molecular outflows is therefore significant in the gas consumption budget, and hence evolution, of this luminous infrared galaxy. (abridged)Comment: 36 pages, 21 figures, submitted to ApJ on Mar. 4, 201