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The Green\u27s Dilemma: Building Tomorrow\u27s Climate Infrastructure Today
Get PDFWe need to make it easier to build electricity transmission lines. This plea came recently not from an electric utility executive but from Senator Sheldon Whitehouse, one of the Senate\u27s champions of progressive climate change policy. His concern is that the massive scale of new climate infrastructure urgently needed to meet our nation\u27s greenhouse gas emissions reduction policy goals will face a substantial obstacle in the form of existing federal, state, and local environmental laws. A small but growing chorus of politicians and commentators with impeccable green credentials agrees that reform of that system will be needed. But how? How can environmental law be reformed to facilitate building climate infrastructure faster without unduly sacrificing its core progressive goals of environmental conservation, distributional equity, and public participation?
That hard question defines what this Article describes as the Greens\u27 Dilemma, and there are no easy answers. We take the position in this Article that the unprecedented scale and urgency of required climate infrastructure requires reconsidering the Grand Bargain of the 1970s that established stronger environmental protection in exchange for more challenging infrastructure development. Green interests, however, largely remain resistant even to opening that discussion. As a result, with few exceptions, reform proposals thus far have amounted to modest streamlining tweaks compared to what we argue will be needed to accelerate climate infrastructure sufficiently to achieve national climate policy goals. To move beyond tweaking to a New Grand Bargain, we explore how to assess the trade-off between speed to develop and build climate infrastructure, on the one hand, and ensuring adequate conservation, distributional equity, and public participation on the other. We outline how a new regime would leverage streamlining methods more comprehensively and, ultimately, more aggressively than has been proposed thus far, including through federal preemption, centralizing federal authority, establishing strict timelines, and providing more comprehensive and transparent information sources and access.
The Greens\u27 Dilemma is real. The trade-offs inherent between building climate infrastructure quickly enough to achieve national climate policy goals versus ensuring strong conservation, equity, and participation goals are difficult. The time for serious debate is now. This is the first law review article to lay the foundation for that emerging national conversation
Fenceposts without a Fence
Get PDFBanking organizations in the United States have long been subject to two broad categories of regulatory requirements. The first is permissive: a positive grant of rights and privileges, typically via a charter for a corporate entity, to engage in the business of banking. The second is restrictive: a negative set of conditions on those rights and privileges, limiting conduct and imposing a program of oversight and enforcement, by which the holder of that charter must abide. Together, these requirements form a legal cordon, or regulatory perimeter, around the U.S. banking sector.
The regulatory perimeter figures prominently in several ongoing policy debates, from the treatment of stablecoins and other crypto assets to the role of Big Tech in finance. The perimeter itself, however, is ill-defined and often misunderstood. To clarify it, this Article situates the regulatory perimeter in the longer historical arc of U.S. banking from the colonial era to the present. This Article identifies a new pattern behind changes to the nature, shape, and position of the perimeter-outside-in pressure, inside-out pressure, and reform and expansion. The Article also pinpoints a shift, decades old but previously neglected, in the design of regulatory categories and the distribution of responsibility between Congress and the executive branch. Put together, these trends have created a regulatory perimeter that is broader, more complex, and arguably more permeable than at any point in its history-a line of fenceposts without a fence
The Anticommons Intersection of Heirs Property and Gentrification
Get PDFThroughout history, internal and external pressures on Black landowners have resulted in the fragmentation of ownership through heirs property. This fragmentation is analogous to the erosion of community ties within minoritized neighborhoods susceptible to gentrification. Both contexts contribute directly to involuntary exit and land loss within the Black community. This Note analyzes the history of Black property ownership within the United States to illustrate the roots of heirs property and gentrification and evaluates traditional responses to these phenomena through the lens of the tragedy of the anticommons. In doing so, it highlights flaws in existing solutions to heirs property. It culminates with a proposed Uniform Act to mitigate and prevent gentrification-induced involuntary exit that incorporates elements of both the Uniform Partition of Heirs Property Act and responses to the tragedy of the anticommons
Pics or It Didn\u27t Happen and Show Me the Receipts : A Folk Evidentiary Rule
Get PDFPics or It Didn\u27t Happen, Show Me the Receipts, and related refrains are frequently encountered in online discussion threads today. They are typically invoked to demand corroboration in support of a claim or to declare from the outset that a claim is supported by some sort of proof In many ways, they are the functional counterpart of legal evidentiary objections in online discussions. They embody a folk evidentiary rule, democratically and organically developed by the people.
The topic of Pics or It Didn\u27t Happen is much broader than can be covered in a symposium piece. As such, this Article seeks to provide a brief exploration into the use of the rule, drawing out some of the underlying evidentiary principles and pointing to some of the pitfalls of proof by pics. It also explains the importance of studying Pics or It Didn\u27t Happen for scholars of law and of evidence law in particular
Models and Limits of Federal Rule of Evidence 609 Reform
Get PDFA Symposium focusing on Reimagining the Rules of Evidence at 50 makes one turn to the federal rule that governs one\u27s designated topic--prior conviction impeachment--and think about how that rule could be altered. Part I of this Article does just that, drawing inspiration from state models to propose ways in which the multiple criticisms of the existing federal rule might be addressed. But recent scholarship by Alice Ristroph, focusing on ways in which criminal law scholars talk to their students about the rules, gives one pause. Ristroph identifies a pedagogical tendency to erase the many humans who turn rules into actions-and indeed life- changing or life-ending actions. With a narrow focus on the rules, as opposed to their enablers and enforcers, we not only miss potential reform opportunities but also potentially obscure behaviors that we may want to scrutinize. Thus, Part II develops proposals for how the behavior of relevant decisionmakers, such as prosecutors and judges, might usefully change-whether or not the language of the rule does. Abolitionists have highlighted the complications of offering criminal or evidentiary reform proposals. Some reforms, they point out, may sanitize and entrench the broader system. Abolitionism has started to enter the evidentiary law review landscape, and this Article embarks upon the project of looking afresh at a critical evidentiary agenda with the aid of abolitionist insights. Accordingly, Part III considers the implications that reforms in this area of evidence law might have for the broader criminal system. It does so by drawing on four insights from abolitionist literature and exploring their implications in the prior conviction impeachment context
Shifting the Male Gaze of Evidence
Get PDFRationality is deeply embedded in both the Rules themselves and the ways they are interpreted. David Leonard stated that rationality lies at the heart of modern evidentiary principles because relevance itself is grounded in rationality. Of the many reasons we have evidence rules-to streamline trials, foster legitimacy and predictability, and promote due process-encouraging rational fact- finding is often at the top of this list.
In contemporary evidence law the hegemonic goal-of-rationality is often taken for granted and can be traced from Bentham through Wigmore to the present day. It is a remarkably homogeneous view that has dominated legal scholarship for most of the twentieth century. Because rationality is a suitcase word, however, before we can go anywhere with it we must unpack it a little. So, what does rationality mean in evidence law?
People likely disagree on the margins about what rationality means. But the typical view embedded in evidence scholarship defines rationality as drawing generalizations from facts and logical reasoning, as opposed to making decisions based on intuitions or feelings. Rationality thus conceived renders emotion a signal that an argument is prejudicial or transparently manipulative. For evidence law, rationality means arguments that flow from the mind, as opposed to the heart
Disaster Discordance: Local Court Implementation of State and Federal Eviction Policies
Get PDFEviction sits at the nexus of property rights and the basic human need for shelter-the former benefits from a strong framework of legal protection while the latter does not. In most eviction courts across the country, therefore, the right to housing is unrecognized, while landlords\u27 economic interests in property are consistently vindicated.
The public health crisis unleashed by COVID-19 temporarily upended that (im)balance. Emergency federal and state eviction prevention policies issued in response to COVID-19 prioritized public health-and the need for shelter to prevent the spread of disease-over typically dominant property rights. In doing so, they presented courts with an unusual dilemma: how to implement policy directives that run counter to existing legal, historical, and procedural frameworks.
While most studies of eviction during the COVID-19 pandemic have explored eviction trends over the period or the impact of these policies, this Article delves more deeply into the question of local implementation-which varied widely across jurisdictions-and asks when and why such policies may not have their full intended impact. Relying on a series of interviews conducted with judges, clerks, and lawyers working in eviction courts, the Article suggests that the phenomenon of discordance can help explain how and when policy implementation is most likely to be effective. Where accordance-functional and norm-based alignment-existed between judges\u27 understanding of the eviction process and COVID-19 policy directives, they were more likely to be proactive and focused on implementation. However; where judges experienced discordance-misalignment between the aims of these directives and those of the underlying legal structure and process-they were more likely to cast themselves as passive and highly restricted in their ability to act outside of the normal order of operations.
Although set against the backdrop of the COVID-19 pandemic, the findings and conclusions set forth in this Article are not unique to that context. The insights presented here regarding the implementation of state and federal policy at the local court level provide critical guidance to policymakers in all areas about the need to consider local dynamics in crafting policy-particularly in times of crisis-and how to structure policies so that local motivations can be used to spur innovation rather than obstruction
A Private Bargaining and Efficient Breach Approach to the Problem of US-China Trade: Bringing a Non-Violation Case in the WTO
Get PDFWhen Joe Biden defeated Donald Trump to become president of the United States in 2020, many observers hoped that Biden would reset the troubled US-China trade relationship. The Trump administration had abandoned the rules-based approach to international trade of the World Trade Organization (WTO) and adopted a power-based approach instead. Using a power-based approach, the United States imposed or threatened sanctions if China did not dismantle its state-led economy and terminate the use of industrial subsidies to support its domestic industries. The United States also crippled the dispute settlement system of the WTO so that nations could not challenge US belligerence in the WTO. A power-based approach uses threats and sanctions in blatant disregard of WTO rules to bully US trading parties into trade concessions. Such an approach is a return to the law of the jungle and vigilante justice.
Two years into Biden\u27s term, rather than a reset, the Biden administration has retained most of the Trump-era China policies, maintaining a precarious status quo. At present, the Biden administration has no clear China strategy of its own and no clear path forward to challenge China\u27s state-led economy.
This Article proposes a new strategy for the United States: bring a non-violation case against China in the WTO. Unlike a violation case, a non-violation case does not assert a breach of any of the textual provi- sions of the WTO. The non-violation case asserts that China has used its state-led policies to deny the United States the benefits of China\u27s WTO membership. Under a non-violation case, the United States and China may be able to reach a private bargain under which China can maintain its state-led economy but will compensate the United States for any harm caused-an efficient-breach solution. The approach in this Article has the advantage of being a return to the rules-based approach of the WTO and will also allow China and the United States to reach a private bargain to resolve the longstanding problem of China\u27s industrial subsidies
To SPAC or Not to SPAC: Liberalizing the Regulation of Capital Markets
Get PDFThe merger and acquisition world has experienced an uptick in deal flow since 2016, reaching unprecedented levels in 2020 due to enhanced private equity funding and market volatility. While the market volatility spurred by COVID-19 halted traditional initial public offerings (IPOs), the special purpose acquisition company (SPAC) market exploded. The flurry of SPAC activity in the United States triggered the development of SPAC markets worldwide. Unfortunately, SPACs’ great rise to fame in the past few years has come at a cost-—fraud. As such, the US Securities and Exchange Commission (SEC) is left grappling with how to best regulate the market moving forward, avoiding a return to rampant fraud that plagued the market in the 1980s.
This Note assesses the current SPAC regulatory framework in the United States and abroad. The solution suggests that capital markets should impose modest preventative measures that enable SPACs to occupy their own sphere in capital markets while also affording greater investor protections
Human-Centered Design to Address Biases in Artificial Intelligence
Get PDFThe potential of artificial intelligence (AI) to reduce health care disparities and inequities is recognized, but it can also exacerbate these issues if not implemented in an equitable manner. This perspective identifies potential biases in each stage of the AI life cycle, including data collection, annotation, machine learning model development, evaluation, deployment, operationalization, monitoring, and feedback integration. To mitigate these biases, we suggest involving a diverse group of stakeholders, using human-centered AI principles. Human-centered AI can help ensure that AI systems are designed and used in a way that benefits patients and society, which can reduce health disparities and inequities. By recognizing and addressing biases at each stage of the AI life cycle, AI can achieve its potential in health care