Articles


Why the Commercial Speech Doctrine Will Prove Toxic to the USDA National Organic Program

This Article argues that the Supreme Court has expanded commercial speech rights too far. The current Court increasingly appears to view the government’s power to regulate commercial speech as limited to only proscribing false or misleading commercial speech. Any attempt by the government to restrict truthful commercial speech, even if potentially misleading, is generally treated as unjustified paternalism in violation of the First Amendment. The evolving jurisprudence threatens reasonable economic regulations that restrict speech for important and non-paternalistic reasons. To make this case, this Article explores how the evolving commercial speech doctrine could invalidate the food-labeling regime established by the Organic Foods Production Act of 1990 (“OFPA”) and its implementing regulations. That regulatory regime, often referred to as the National Organic Program (“NOP”), generally prohibits representing food as “organic” unless a United States Department of Agriculture (“USDA”) licensed inspector has certified that the food was produced consistent with OFPA’s implementing […]


Examining Tribal Environmental Law

Since the revolution of environmental law began roughly forty years ago, scholars have wrestled with the complex interactions of the states and federal government, but they have largely ignored tribal governments. Although some scholarship exists regarding the suggested development of tribal environmental law, little is known about the extent to which tribes nationwide have enacted such laws. This Article fills that vacuum by taking a first look at existing tribal environmental law and exploring the laws of one tribal nation that has enacted several environmental laws. The Article also proposes some initial norms to guide the development of tribal environmental law.