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Measuring the Justice Gap: Flaws in the Interstate Allocation of Civil Legal Services Funding and a Proposed Remedy
Get PDFWith the supply of legal services not particularly responsive to demand, we conclude that the justice gap could be narrowed simply by reforming the way in which policymakers distribute legal services funds while holding constant the total amount of funds distributed.
In reaching this conclusion, we proceed in two parts. First, drawing largely from Access Across America and LSC data, we analyze the supply of legal services funding across states. Since eligibility for Legal Services Corporation (LSC) funds is principally determined by income (only individuals in households with income at or below 125% of the federal poverty level are LSC eligible),8 variations in legal services funding among states are strongly correlated with LSC eligibility levels. However, LSC funding likely accounts for well under forty-three percent (43%) of overall legal services funding, with the remainder (“non-LSC funding”) generated by, inter alia, state and local grants, filing fees, interest on lawyer trust accounts (“IOLTA”), and private grants. Because the precise magnitude of non-LSC funding is unclear, we estimate it with three different measures. Using each of these measures, we then analyze its disparity among states. In every case, after explaining Access Across America’s finding that non-LSC funding is not proportional to population, we conclude that it also has no statistically significant relationship to key economic indicators, such as LSC eligibility, median household income, or unemployment. In fact, of the variables we tested, only the number of lawyers in a state relates significantly to any of our measures of non-LSC funding, and of these three measures, the only one for which the number of lawyers has statistical significance is non-LSC funding received by organizations that also receive LSC funding.
After examining how legal services funds are supplied across states, we then analyze how they are demanded. Measuring demand is quite challenging, particularly on the state level, because it requires assessing not the amount of legal services that low-income individuals do use, but rather the amount that they want to use, which is an unobservable variable. The LSC has attempted to measure such demand through a survey of individuals seeking assistance from LSC-funded programs, but, as the LSC concedes, this approach comes with inherent limitations that likely under-represent unmet needs. We therefore take a different approach: after assuming that the overall frequency with which civil legal services are delivered reflects the relative demand for these services across states, we estimate demand within each state through proxies for the most significant categories of services. Because, according to LSC data, nearly eighty-five percent (85%) of LSC-eligible cases arise from just four types of disputes (consumer finance, family, housing, and income), we can reasonably project state-level demand for legal services by estimating the frequency of these disputes within each state. Upon doing so, we find that there is no clear connection between state-level demand and supply, particularly with respect to LSC funding. In other words, states with the greatest need for LSC funding (because their residents encounter legal problems the most based on our estimates) do not necessarily have more funding than states with lower funding needs.
Though we recognize that fixing this imbalance will not be easy, we conclude by offering a proposal that attempts to do so. In this regard, we recommend that the LSC move away from complete reliance on an income-based test toward a needs-based test. Such a framework would allow the LSC to more effectively serve unmet demand for civil legal services and thus, help realize Justice Powell’s ideal
Innovative Financing for Renewable Energy
Get PDFCarbon pollution from fossil-fuel combustion is the largest contributor to climate change worldwide. Renewable energy can materially help to reduce greenhouse gas (GHG) emissions and their principal cause, worldwide dependence on carbon fuels. If our goal is to remain at or below 1990 numbers, then fossil fuels must be phased out of the global energy portfolio.
While other factors such as energy inefficiencies in buildings, appliances and transportation, for example; deforestation, farm animal excretion, pipeline leakage, HFCs for refrigeration, black soot and changes in land use also contribute to increased emissions, finding new, innovative ways to empower people to seize the opportunities presented by clean, renewable electricity present an invaluable path to reduce carbon emissions
New York’s Decanting Statute: Helping an Old Vintage Come to Life or Spoiling the Settlor’s Fine Wine?
Get PDFThe Comment examines trust decanting in four parts. Part I reviews the historical evolution of decanting statutes, first from common law roots, and later focusing on the legislative history of New York’s decanting statute. Part II briefly explains the functionality of section 10-6.6 of the NY EPTL; the “how does it work” explanation of the statute that authorizes decanting. Part III will discuss the many practical uses of the decanting statute. Finally, Part IV will transition into a discussion on how the trustee’s use of this statute not only leaves him in limbo regarding the tax treatment of his actions, but places him in a head on clash with New York’s longstanding commitment to honoring settlor intent
Beef Products, Inc. v. ABC News: (Pink) Slimy Enough to Determine the Constitutionality of Agricultural Disparagement Laws?
Get PDFThis Comment analyzes the likelihood of whether BPI’s case against ABC News will be decided on the merits, whether South Dakota’s agricultural disparagement statute will be upheld as constitutional, and thus the likelihood that other states’ statutes will be struck down, thereby preserving the public’s freedom to question and criticize the safety of our food system. First, Part I offers a brief introduction to agricultural disparagement laws, their historical application, and BPI’s pending lawsuit. Next, Part II reviews the context of the enactment of agricultural disparagement laws, summarizes the common elements of these laws, and discusses Texas Beef Group v. Winfrey. Parts III (A) and (B) discuss BPI v. ABC News and analyze whether the facts of the case are sufficient to permit a decision on the merits. Part III (C) analyzes the constitutionality of South Dakota’s agricultural disparagement statute under the First Amendment of the United States Constitution. Finally, Part IV concludes that BPI’s case will probably fail on the merits, and that South Dakota’s agricultural disparagement statute is likely unconstitutional under the First Amendment
The Improbability of Positivism
Get PDFRonald Dworkin’s contributions to legal philosophy have been subject to severe criticism in recent years. Other legal philosophers call his arguments “deflected or discredited,” laced with “philosophical confusions,” and “deeply embedded” mistakes. As Brian Leiter writes, “[t]he only good news in the story about Dworkin’s impact on law and philosophy is that most of the field declined to follow the Dworkinian path . . . .”
This Article endeavors to show that, far from an effort beset with primitive errors, Dworkin’s challenge to legal positivism in the opening pages of his seminal work was neither misguided nor trivial. Rather, Dworkin’s challenge remains as important and thought-provoking today as it was when he first set it down. His challenge, though straightforward, has never been satisfactorily answered. Rather than grapple with Dworkin’s argument, legal philosophers have either misunderstood or trivialized his insights in the decades since. But there is a reason H.L.A. Hart, one of Dworkin’s examiners at Oxford, saved his jurisprudence examination before ever having reason to believe that Dworkin would become the primary opponent to legal positivism. Hart’s challenge—the argument from theoretical disagreement—still burns bright nearly a quarter-century on.
Furthermore, this Article seeks to explain why legal positivism’s inability to preserve the face value of theoretical disagreement makes it improbable that legal positivism offers an adequate descriptive account of the nature of law. It also endeavors to outline why this deficiency is so immensely important. To accept the legitimacy of theoretical disagreement is accept that to know what the law is one must know something about the moral and political culture in which that law resides
The Exceptional Absence of Human Rights as a Principle in American Law
Get PDFCompared to other Western democracies, references to “human rights” are rare in domestic American law. A survey of landmark Supreme Court cases reveals that both conservative and liberal Justices made no mention of “human rights” when addressing fundamental questions: racial segregation, the death penalty, prisoners’ rights, women’s rights, children’s rights, gay rights, and indefinite detention at Guantanamo. This absence illustrates a broader societal trait. In the United States, “human rights” commonly evoke foreign problems like abuses in Third World dictatorships—not domestic problems. By contrast, human rights play a relatively important role as a domestic principle in Europe, Canada, Australia, and New Zealand. Diverse legal, political, sociological, historical, and normative factors shed light on why human rights have hardly made headway as a domestic principle in America.
The disinclination to frame domestic problems as human rights issues or to consider humanitarian questions per se helps explain why modern-day America has a worse human rights record than other Western democracies in various areas, including criminal justice, the “War on Terror,” and access to affordable health care. America notably has the highest incarceration rate worldwide; is the only Western democracy to retain the death penalty; and has openly tortured alleged terrorists. In addition, it is the sole Western nation to lack universal health care, which is essentially considered a human right elsewhere in the West.
The relative absence of human rights as a principle in contemporary American law is particularly striking given that America has made substantial contributions to the development of individual rights since becoming the first modern democracy to emerge from the Enlightenment in the 18th century. American leaders like Franklin Roosevelt, Eleanor Roosevelt, and Martin Luther King also played an active role in promoting the principle of “human rights” as it gradually emerged into a major international movement. If human rights have not achieved meaningful recognition as a domestic legal principle in the United States, it partly reflects the contradictions of American society
Excuses, Justifications, and Duress at the International Criminal Tribunals
Get PDFThis article examines the application of the defense of duress by international criminal tribunals through analyzing opposing theoretical approaches to justifications and excuses. The purpose of this examination is twofold. First, the article offers a framework for duress’s application by examining scholarly approaches to duress and by analyzing the application of the defense by international tribunals. This analysis includes the tribunals constituted following the Second World War and International Criminal Tribunal for the Former Yugoslavia (ICTY). Second, the article provides insight into the underlying rationales that guide judges at the international tribunals in the last decade through the judges’ application of the defense
Seeking Justice in the Empire State: Court of Appeals Broadens the Reach of Long Arm Jurisdiction and Clarifies the Statutory Guidelines for Application of CPLR Section 302(A)(1)
Get PDFThis article will discuss developments in long-arm jurisdiction under CPLR section 302(a)(1)1 and analyze the recent New York State Court of Appeals‘s thoughtful and instructive decision in Licci ex rel. Licci v. Lebanese Canadian Bank, SAL. Licci decided the question of whether a non-domiciliary‘s maintenance of a bank account in New York constituted a “transaction of business” out of which the plaintiff‘s claims arose under the state‘s long-arm statute. The Licci plaintiffs had alleged that the defendant funded a terrorist organization responsible for the injuries and deaths of certain plaintiffs and decedents they represented. The Licci opinion did not decide if New York had jurisdiction over the defendant but analyzed a certified question from the United States Court of Appeals for the Second Circuit regarding whether there was a statutory basis for personal jurisdiction over the defendant.
In Licci, the Empire State‘s highest court answered the Second Circuit‘s question in the affirmative, expansively defining the “transaction of business” clause under CPLR section 302(a)(1) and extending the jurisdictional reach of the long-arm statute‘s arising out of‖ provision. The Licci opinion is a broad and pragmatic statutory interpretation of CPLR section 302(a)(1) by the Court of Appeals. It signals the court‘s willingness to apply the state‘s long-arm statute as its drafters intended, clarifies prior jurisprudential entanglement of statutory and constitutional issues, and is welcome news for the plaintiff‘s bar