Emergencies, Alien and Domestic

As the politicization and polarization of issues at the intersection of climate and disaster grow, and in the light of recent actions of the Trump Administration, there is a growing call for reform. This Article analyzes how FEMA might integrate climate change into its disaster resilience efforts under existing authority, while exploring a more effective formal legislative mandate to enable FEMA to be a viable source of climate resilience leadership. We propose that FEMA’s mission would be best served by legislation explicitly requiring the agency to integrate climate change responsibilities in all phases of disaster management. In particular, we recommend legislation that (a) clarifies the role of FEMA in relation to slow-onset disasters, such as sea level rise; (b) clarifies the role of FEMA in relation to compounding disasters, disasters that occur while recovery from a previous disaster is still underway; and (c) requires relevant federal, state, and local agencies to integrate climate projections and modelling into hazard and risk assessments.

The Sarbanes-Oxley Act of 2002 (SOX) entrusted the general counsel (GC) of public companies with overseeing a new system of internal controls and reporting misconduct at their firms.

The Federal Reserve established an array of innovative emergency lending facilities during the Great Financial Crisis and expanded the scope of its emergency lending yet further in response to the Covid-19 pandemic. This Article provides a retrospective of how the Federal Reserve used its emergency lending authority across these two episodes, identifying patterns and revealing some differences. It sheds light on the conditions that enabled the Federal Reserve to establish the facilities that it did, including the roles played by Congress and Treasury in providing the equity funding that made certain facilities possible. It shows how in each episode, the Federal Reserve supported a whole-of-government response meant to limit the damage inflicted by a massive shock to the economy while still maintaining its independence with respect to monetary policy.

This Article explores recent developments in international human rights law, including the recent Committee on the Rights of the Child General Comment No. 26, and the Inter-American Court of Human Rights’ decision in Inhabitants of La Oroya v. Perú. This Article posits that it is imperative to consider the Precautionary Principle within the right to a healthy environment framework in order to manage this environmental crisis. The Precautionary Principle seeks to prevent environmental harm prior to its occurrence, by requiring States to prevent foreseeable, serious, and irreversible damage, and to ensure that the environment is “sound enough” for present and future generations. This Article further grounds this discussion in the context of marginalized communities living in multidimensional poverty, such as children and those in “sacrifice zones,” which are often at the forefront of the fight to survive and protect the environment.

A growing body of law addresses liability for harms caused by disasters. The bases for liability are diverse: common law torts, statutes covering specific risks, and takings doctrine. Litigation can involve government or private defendants, while the disaster could be anything from an oil spill to a flood. This Article maps this complex legal terrain and discusses three cross-cutting themes in disaster liability. One theme is the action/inaction distinction, which can create a perverse incentive to postpone or forego mitigation efforts. The second theme involves the interplay between legislatures and courts in designing and implementing liability rules. The final theme is the tendency to constitutionalize disaster torts, a trend this Article criticizes. This Article proposes several reforms in light of these themes, including limitations on liability for risk mitigation measures like prescribed burns, rejection of strict liability, and reconsideration of judicial decisions that constitutionalize liability rules.

In this Article, we contribute to the unfolding debate around civil liberties and civil rights in times of political, cultural, and health crises. As this Article was drafted, the National Guard was deployed in Los Angeles, California and Washington, D.C. by the President of the United States. In Oregon, a federal judge issued a final order barring the Trump administration from deploying troops to Portland. These events renew questions related to federalism, states’ rights, individual civil rights, and civil liberties. As chaos unfolds, what is the rule of law and role of civil liberties in times of real or purported national security threats? The Article examines these questions in the realm of health crises, drawing upon this context to tease out meaning for a broader urgent discourse in law and society.

COVID-19 revealed deeply embedded inequalities in countries’ capacity to respond to public health disasters. From 2020 to 2024, the content and scope of international health law expanded to address these deep inequities, including a new pandemic agreement and significant changes to the International Health Regulations (IHR). Recent moves by the Trump Administration leveled significant losses on this new global health law infrastructure. This Article addresses law in times of disaster both discretely—how the WHO can improve using two recent mpox public health emergencies as a case study—and broadly—how U.S. withdrawal and hostility to the WHO will produce a disaster for global health governance.

The COVID-19 pandemic brought unprecedented challenges to vaccine development and distribution. Never before has a vaccine been developed so quickly and distributed so rapidly. But compared to past pandemics and public health crises—like polio or even the more recent H1N1 pandemic—the United States government’s COVID-19 vaccine strategy depended greatly on the private sector. To be better prepared for future disease outbreaks, both the private and public sectors need to find a middle ground that will allow for expedient vaccine development without compromising on public interests and needs.

This Article analyzes how the U.S. constitutional order responds to democratic crisis by examining Supreme Court cases dealing with the effort to overturn the 2020 election, and the response to the January 6th Capitol attack. It analyzes the Court’s approaches to constitutional structure in key cases and how these approaches impact constitutional capacity to address democratic crises. The Article discusses how the effort to overturn the 2020 election sought to exploit key weaknesses in the U.S. constitutional framework. It then examines how the Supreme Court adjudicated cases related to the effort to overturn the 2020 election, including Moore v. Harper, Trump v. Anderson, and Trump v. United States. I argue that the application of constitutional structure-based approaches in these cases pose key challenges for the constitutional order’s ability to respond to democratic crises. The Article suggests applying a limited conception of the basic structure doctrine in comparative constitutional law in these cases.

This Article examines the need and justification for a more robust approach to extreme heat by FEMA under the Stafford Act. I conclude that—given the severity of extreme heat events, their disproportionate effects on vulnerable populations, and the broad protection promised under the Stafford Act—immediate action is needed.

In 2024, the Supreme Court held in Harrington v. Purdue Pharma that, outside of asbestos cases, the Bankruptcy Code does not authorize releases of direct claims against third parties who are contributing to the settlement without the consent of the affected claimants. The decision arguably makes it harder to bring additional resources into a global settlement and raises uncertainties about the extent to which the § 524(g) template can be adapted for use in non-asbestos bankruptcy cases. Our Article makes a preliminary attempt to re-legitimize resolution of mass tort claims in Chapter 11 drawing comparatively on our experience as English lawyers with the English scheme of arrangement. We start by asking whether group resolution, as opposed to individual resolution of tort claims, is justifiable as a threshold matter and argue that the justification lies in nothing more elaborate than formal equality of treatment—in other words, that like claims should be treated alike—and that, accordingly, rough collective justice is superior to individual enforcement in the tort system.

This Comment examines the challenges of applying the False Claims Act’s (FCA) materiality standard to cybersecurity noncompliance by federal contractors. Although the Department of Justice’s Civil Cyber-Fraud Initiative seeks to hold government contractors accountable for misrepresenting their adherence to federal cybersecurity standards, courts have inconsistently applied the “holistic” framework for determining materiality established by the Supreme Court in Universal Health Services v. Escobar. Cybersecurity-related FCA claims face unique obstacles when it comes to showing materiality because noncompliance is widespread, national security interests complicate the government’s payment decisions, and government agencies may continue contracting with noncompliant entities out of necessity. This Comment argues for a clarified materiality framework that emphasizes two Escobar factors—whether compliance was an express condition of payment and the degree of noncompliance—while deemphasizing continued government payment as evidence of immateriality. Such a standard would better reflect the realities of cybersecurity contracting and preserve the FCA as an effective deterrent against cybersecurity fraud threatening national security.

This Comment unpacks how doctrine has split among circuit courts regarding whether the Takings Clause requires just compensation for innocent property owners whose property has been destroyed by government action in response to an emergency. As a resolution to this circuit split, this Comment proposes that courts should adopt a multi-factor test, utilizing the Fourth Circuit’s analysis as a starting point. Applying the themes and practices of Takings jurisprudence, this Comment ultimately argues that courts should weigh the foreseeability of the invasion, the severity of the interference, the nature of the land, and the owner’s investment-back expectations about the land’s use.

Section 1324 of Title 8 of the U.S. Code prohibits “harboring” undocumented immigrants. But for decades, courts have disagreed over what counts as harboring and what mens rea is required to prove it. These questions have only grown more urgent as immigration has been repeatedly framed as a national crisis. This Comment argues that courts should apply different mens rea standards depending on context: a narrow intent standard in sanctuary cases and a broader substantial facilitation standard in trafficking cases. This framework better reflects the moral and legal distinctions between protection and exploitation, aligns with legislative history and intent, and draws on established criminal law principles that vary culpability based on motive. Alternatively, this Comment proposes that courts should incorporate motive into the substantial facilitation test, distinguishing sanctuary from trafficking in practice. Clarifying § 1324’s mens rea requirement would bring needed coherence to a fragmented doctrine, reduce the chilling of humanitarian aid, and better target the exploitation the statute was originally meant to address.

Curfews imposed against an entire civilian population are extremely rare. Despite this, the amount of curfews has recently skyrocketed in the United States as government officials use this sweeping power to respond to emergencies. This Comment evaluates the constitutional rights implicated by general curfew orders, namely the right to travel and the right to speak in public forums. Then, this Comment surveys the current circuit split. Lower courts significantly diverge in their standard of review of curfew orders and apply three very different forms of review: deference, intermediate scrutiny, and strict scrutiny. This Comment argues that courts should subject general curfew orders to strict scrutiny because curfews impose direct constraints that abridge fundamental constitutional rights. Additionally, this Comment contends that challenges to general curfews on right to travel grounds are a valid, but neglected, route for petitioners. General curfews directly abridge both intrastate and interstate travel. Moreover, the right to travel provides an independent hook to apply strict scrutiny when a court determines that lesser scrutiny applies on First Amendment grounds.

As litigation against e-cigarette manufacturers continues to develop, it is increasingly evident that one of the biggest obstacles to bringing private claims will be avoiding preemption under the Federal Food, Drug, and Cosmetic Act (FDCA). This Comment argues that one untested yet promising pathway for injured plaintiffs to avoid preemption is to bring FDCA-based negligence per se claims. By examining precedent involving other FDCA provisions, this Comment assesses the viability of such claims and concludes that the FDCA’s tobacco-specific regulations are unique in both their articulated standards of care and their regulatory precision. These features may allow negligence per se claims grounded in tobacco provisions to avoid preemption where similar claims based on other FDCA sections have not.

In response to gun violence, many states have attempted to implement gun control laws. Some of these gun control laws have been challenged under the Second Amendment, with parties seeking preliminary injunctions to halt these laws’ enforcement until a final judicial decision has been reached. In legal disputes over whether to grant a preliminary injunction over various gun control laws, circuits are split as to whether an alleged violation of the Second Amendment is presumptively irreparable, i.e., unable to be adequately remedied after a final judgment. This Comment argues that Second Amendment violations are entitled to a presumption of irreparable harm because, as with rights protected by the First Amendment, Second Amendment rights are of an intangible and unquantifiable nature that protects against governmental infringement and deterrence.

To fall within the scope of SOX’s anti-retaliation provisions, a whistleblower must demonstrate he had an “objectively reasonable belief” that his employer’s conduct violated the laws or regulations enumerated in § 1514A. Over time, the Administrative Review Board (ARB) has provided varying interpretations of § 1514A’s objective reasonableness standard, which U.S. Courts of Appeals have adopted or modified at different points in time. As a result, a complex circuit split has emerged. After analyzing SOX’s legislative history, the procedure for filing a complaint, the ARB’s evolving interpretation of § 1514A, the circuit split, and objective reasonableness in an analogous context, this Comment proposes an objective reasonableness standard that would bridge the current divide.

The Federal Tort Claims Act (FTCA) broadly waives the federal government’s sovereign immunity, but the discretionary function exception (DFE) preserves immunity for acts grounded in judgment or choice. A doctrinal tension arises from the Supreme Court’s instruction in Berkovitz v. United States that the DFE does not apply when a directive “specifically prescribes a course of action.” This Comment argues for a new interpretation of Berkovitz’s first prong: a directive should eliminate discretion only when it specifies concrete actions that advance the overarching policy objectives of the government operation.

In January 2021, the GameStop short squeeze exposed a major vulnerability in the U.S. financial regulatory system: the T+2 settlement cycle. As part of its response, the Securities and Exchange Commission moved from two-day to one-day settlement. The next step is to reform the settlement process further. This Comment argues that the SEC should transition to T+0, or same-day, settlement. This transition will require a significant modernization of industry infrastructure. But by collapsing the settlement window, the market can drastically reduce risk, lower capital requirements for intermediaries, and enhance overall market stability. Regulators must embrace this shift to create a safer, more efficient marketplace for all.

The 2010 amendment to the Anti-Kickback Statute (AKS) sought to strengthen federal healthcare fraud enforcement by clarifying that Medicare and Medicaid claims submitted to the government “resulting from” AKS violations constitute false claims under the False Claims Act (FCA). However, two words, “resulting from,” have created a deep circuit split over the requisite causation standard. Drawing on burden-shifting frameworks from employment discrimination law, antitrust merger challenges, and fiduciary duty cases, this Comment proposes a burden-shifting approach to AKS-predicated FCA claims. This approach addresses the information asymmetry inherent in healthcare fraud cases—where evidence of kickbacks often remains in defendants’ possession—while protecting against prosecutorial overreach. By leveling the evidentiary playing field, a burden-shifting framework offers a practical middle ground that serves both the government’s interest in combating healthcare fraud while not over prosecuting healthcare professionals with good intent.