Vol. 9 (2013)

Click link to view PDF

Briana Novian, Pain in the Ash?  EPA's Proposed Regulation of Fly Ash and the Impending Economic Threat to Sustainable Concrete, 9 OKLA. J.L. & TECH. 66 (2013)

"At the outset, this comment reviews the current regulations in place to monitor coal combustion residuals and illustrates how they are both economically and environmentally beneficial.  Next, this comment discusses how these benefits are placed in jeopardy due to the EPA’s impending proposed regulations. Finally, this comment advances possible categorical alternatives that ensure the regulatory purpose of the EPA will be carried out, without adversely affecting fly ash recycling efforts."

Charles Warren, When the Feds Have Taken the Field: Federal Field Preemption of Claims Against Manufacturers Whose Medical Devices Have Received Premarket Approval by the FDA, 9 OKLA. J.L. & TECH. 65 (2013)

"Imagine a neurology patient who is a long term sufferer of Parkinson’s Disease. Parkinson’s is caused by a deficiency of the neurotransmitter dopamine in the brain.  Its symptoms include stiffness in motion, droopy posture, and rhythmic muscle tremors that can make even the most mundane of tasks nearly impossible to perform without assistance.  Now imagine that persons’ neurologist offering a solution to his chronic condition: a pair of tiny electrodes implanted in both hemispheres of the brain that would stimulate the brain tissue, resulting in diminished symptoms.  The patient seizes the opportunity to reduce, or possibly even end, years of misery caused by his condition.  After the surgery, the results are fantastic.  The Parkinsonian tremors and other symptoms are not completely gone, but they are greatly improved.  As it turns out, there's just one problem—and it's a big one.  The instructions and warnings contained in the device packaging failed to warn that patients should avoid all procedures that involve any form of electrocautery or diathermy.  Uninformed of this risk, the patient schedules a dental procedure which involving diathermy or electrocautery.  Thereafter, the patient shows deterioration in the control of his symptoms, and, despite undergoing more surgeries to fix or replace the electrodes in his brain, he still continues to experience reduced control of his Parkinsonian symptoms.  The patient sues the manufacturer of the electrodes in a state and common law strict products liability action, for failure to warn of the danger posed by diathermy or electrocautery.  In addition to the reduction in control of his Parkinsons symptoms, the patient believes that the implanted electrodes caused damage to his surrounding brain tissue.  Unfortunately, the patient finds that the federal regulations under which the device was certified as reasonably safe, do not require the manufacturer to provide further warnings about product safety.  This result is true even where the manufacturer knows of a similar fact situation in which nearly the same damage was done to another patient.  Since there was no duty to warn the patient under the federal statutes, the patient’s state and common law claims for failure to warn were preempted by federal law, leaving the brain damaged man with no legal recourse by which he could attempt to recover damages for the injuries he sustained from the device.  This sad story has been repeated, again and again, with much the same disastrous results.

Kristian Bryant Rose, Of Principle and Prudence: Analyzing the F.B.I.’S Reluctance to Electronically Record Interrogations, 9 OKLA. J.L. & TECH. 64 (2013)

"Currently, the F.B.I. maintains a policy that generally precludes electronically recording interrogations and interviews of suspects.  Instead, the Bureau relies on '302 reports,' whereby an agent transcribes, by hand, what is said during an interview.  This practice is not without exception, however. In certain circumstances, the Special Agent in Charge of a field office may exercise discretion to allow the recording of an interview.  A discretionary allowance appears particularly likely where the partnering United States Attorney or applicable Federal District Court requires such recording.  These discretionary exceptions notwithstanding, a growing body of academic literature suggests concern for the improvidence and due process implications of refusing to record custodial interrogations.  Part II of this comment argues: (1) that due process under the United States Constitution does not require the electronic recording of custodial interrogations, (2) that video footage fails to achieve maximum evidentiary objectivity, and (3) that courts should leave to law enforcement the freedom to determine investigative best practices. Part III explores the prudence of adopting a policy of video recordation despite a lack of constitutional compulsion."

Matt Jones, EME Homer City Generation, L.P. v. E.P.A.: Restraining the Federal Government’s Leadership Role in Stopping Interstate Air Pollution, 9 OKLA. J.L. & TECH. 63 (2013)

"Rapid advancement in industrialization and urbanization demands unprecedented amounts of electricity use in modern day America. Although technological innovation has fueled the use of clean forms of energy, the vast majority of electricity is still generated from the combustion of fossil fuels such as coal, natural gas, and oil. This combustion releases a multitude of pollutants into the environment.  The source of air pollution is identifiable and measurable within the borders of each state. Air pollution itself, however, is indifferent to state boundaries. Air currents, wind, and air pressure systems drive pollutants generated in one state into the atmosphere of other, downwind states. Congress, mindful of this deleterious problem, enacted a provision within the Clean Air Act called the Good Neighbor Provision."

Maxwell S. Bayman, Subsidizing Advanced Nuclear Energy, 9 OKLA. J.L. & TECH. 62 (2013)

"This paper reviews the historical development of nuclear energy and compares it to other alternative sources of energy production.  Section two discusses the process of planning, build-ing, and operating a nuclear facility and the tax consequences of each stage.  The third section reviews and critiques the production tax credit for advanced nuclear facilities.  Finally, this paper considers alternative tax-based solutions to promote nuclear energy through changes to corporate tax brackets and amendments to the credit system."