8227 research outputs found
Sort by
Adapting Private Law for Climate Change Adaptation
Get PDFThe private law of torts, property, and contracts will and should play an important role in resolving disputes regarding how private individuals and entities respond to and manage the harms of climate change that cannot be avoided through mitigation (known in climate change policy dialogue as “adaptation”). While adaptation is commonly presented as a problem needing legislative solutions, this Article presents a novel and overdue case for private law to take climate adaptation seriously.
To date, the role of private law is a significant blind spot in scholarly discussions of climate adaptation. Litigation invoking common-law doctrines in climate adaption disputes has not yet taken off the way that the wave of high-profile lawsuits against sources of emissions causing climate change has, but it is inevitable that it will, making it ripe for attention in legal scholarship. The Article begins in Part I by highlighting several features of climate change and adaptation that will place inevitable disruptive pressure on existing doctrines and principles of private law. The new normal of climate change questions some key factual predicates embedded in private law doctrine. For example, climate change is radically moving the long-stable upper and lower extremes of multiple biophysical conditions (what scientists call “nonstationarity”), meaning individuals increasingly will be unable to accurately predict the future based entirely on past data (what scientists call the “no-analog future”).
Private law nonetheless must operate in a manner that provides practical and meaningful guidance to stakeholders, which will require it to confront the new realities presented by climate adaptation, including how private individuals and entities can no longer predict the future in the same ways that they have in the past. In Part II, the Article identifies a series of evaluative guideposts to help assess when changes to doctrines and principles of private law may be needed to address impending climate adaptation disputes.
Private law’s basic architecture helps to define and manage relationships, clarify responsibilities, and provide remedies for harm—a tripartite framework we use in Part III to unravel a few key doctrinal pressure points that private law faces as it addresses a novel set of impending climate change adaptation claims. The principle of foreseeability—central to numerous doctrines that define relationships, responsibilities, and remedies across tort, property, and contract law—is likely to face some of the strongest pushback as we confront climate adaptation. We propose a “foreseeability of nonstationarity” principle and evaluate what that might mean for some core private law doctrines. This points towards expansion of the scope of obligations private law recognizes for various actors within their adaptation footprints. Existing private law principles can address wrongfulness even in the no-analog future of climate adaptation. It is important, however, that private law defenses recognize the nonstationarity of climate risks, as well as the lack of an analog future available to predict and address the harmful effects of climate change.
We conclude that private law can and will adapt to climate change. This process will be central to providing guidance as individuals, businesses, and other private actors confront new risks and harms as society adapts to a new natural world. But the path of private law’s adaption matters, and how it approaches key principles such as foreseeability will be central to its capacity to provide meaningful guidance for private stakeholders adapting to the realities of climate change
Book Review: Grease or Grit?
Get PDFGrease or Grit? International Case Studies of Occupational Licensing and Its Effects on Efficiency and Quality. Edited by Morris M. Kleiner and Maria Koumenta. Kalamazoo, MI: W.E. Upjohn Institute for Employment Research, 2022. 174 pp. ISBN 9780880996860, 9.99 (e-book).
Occupational licensing remains poorly understood. This is true even after decades of illuminating empirical work by Morris Kleiner, one of the authors of Grease or Grit? International Case Studies of Occupational Licensing and Its Effects on Efficiency and Quality, showing that licensing—a government-granted right to perform a particular service—raises prices to consumers, restricts entry into an occupation, reduces interstate mobility of the workforce, and contributes to income inequality. And it remains true after economists studying the phenomenon from other jurisdictions, including his British co-author Maria Koumenta, have shown the same outcomes.
One important missing piece of the licensing puzzle is that we know little about licensing’s payoff. It is not enough to criticize occupational licensing as costly to consumers and workers if we do not know whether its purported benefits, such as safer, better, and more professional service, are worth it. This side of the cost-benefit analysis of professional licensing has been lacking because unlike wages, prices, and employment, service quality is almost impossible to measure objectively. How can researchers code for good legal advice? Which architects make more beautiful buildings? How can a physician’s bedside manner—or surgical competence, for that matter—be reduced to a numerical score and empirically evaluated? Without hard evidence about quality, critics of licensing have few concrete measures to point to when proponents of licensure (usually the professions themselves) seek regulation that in theory (and maybe only in theory) leads to better professional service
Gender, Race, and Job Satisfaction of Law Graduates
Get PDFStudies typically find that lawyers have high job satisfaction and that women are not less satisfied than are men. But racial differences as well as gender differences by race or ethnicity in satisfaction may be masked because most lawyers identify as racially White. To examine whether job satisfaction differs by race and whether gender and race/ethnicity have an intersectional relation to job satisfaction, I use data on nearly 13,000 law graduates drawn from six waves of the National Survey of College Graduates (NSCG) conducted between 2003 and 2019. The NSCG uniquely provides a large enough sample to examine intersectionality in job satisfaction of law graduates as well as to compare satisfaction of lawyers to those employed in other occupations. Job satisfaction is strikingly low among Black women and Asian women law graduates. Asian women lawyers have satisfaction similar to White men lawyers but substantially lower satisfaction if not employed as a lawyer. Black women have substantially lower satisfaction in either employment situation. The lower satisfaction of Asian and Black women law graduates is not due to differences in personal characteristics, family status or background, job characteristics, or differences in values
The Perils of Asian-American Erasure
Get PDFAffirmative action, particularly its most well-known variant, race-conscious college admissions practices, has long occupied a precarious position in constitutional jurisprudence of equal protection and statutory antidiscrimination law. As a policy matter, affirmative action practices are necessary to reduce the impact of durable structural barriers to opportunity that have been imposed on members of identifiable racial groups because of their race. Legally, they’re on far less secure footing.
As a constitutional matter, these measures have been summarily divorced from any reparative purpose since the “diversity rationale” emerged from Regents of the University of California v. Bakke as the only compelling interest a public college or university may have in race-consciousness enrollment management. Without “a [predicate] judicial determination of constitutional violation,” a public college or university simply cannot appeal to remedy to justify its use of race classifications. The question currently before the Court in Students for Fair Admissions, Inc. v. University of North Carolina is whether the diversity rationale alone is constitutionally sufficient. In the companion case, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, the question is whether a federal-funds-receiving educational institution’s consideration of race can be compatible with the Title VI statutory requirement that such institutions not discriminate on racial grounds. Unlike in the University of North Carolina case, the certified question in the President & Fellows of Harvard College case specifically asks if institutional consideration of race “penalize[es] Asian-American applicants.”
This is the first time that the Court has explicitly asked for consideration of the effects race-conscious admissions policies might have on Asian Americans. Though this motivating premise is left unstated, in Professor Vinay Harpalani’s article, Asian Americans, Racial Stereotypes, and Elite Admissions, it’s long overdue
The Death of the Legal Subject
Get PDFThe law is often engaged in prediction. In the calculation of tort damages, for example, a judge will consider what the tort victim’s likely future earnings would have been, but for their particular injury. Similarly, when considering injunctive relief, a judge will assess whether the plaintiff is likely to suffer irreparable harm if a preliminary injunction is not granted. And for the purposes of a child custody evaluation, a judge will consider which parent will provide an environment that is in the best interests of the child.
Relative to other areas of law, criminal law is oversaturated with prediction. Almost every decision node in the criminal justice system demands a prediction of individual behavior: does the accused present a flight risk, or a danger to the public (pre-trial detention); is the defendant likely to recidivate (sentencing); and will the defendant successfully reenter society (parole)? Increasingly, these predictions are made by algorithms, many of which display racial bias, and are hidden from public view. Existing scholarship has focused on de-biasing and disclosing algorithmic models, but this Article argues that even a transparent and unbiased algorithm may undermine the epistemic legitimacy of a judicial decision.
Law has historically generated truth claims through discursive and dialogic practices, using shared linguistic tools, in an environment characterized by proximity and reciprocity. In contrast, the truth claims of data science are generated from data processing of such scale and complexity that it is not commensurable with, or reversible to, human reasoning. Data science excludes the individual from the production of knowledge about themselves on the basis that “unmediated” behavioral data (not self-reported or otherwise subject to conscious manipulation by the data subject) offers unrivaled predictive accuracy. Accordingly, data science discounts the first-person view of reality that has traditionally underwritten legal processes of truth-making, such as individual testimony.
As judges turn to algorithms to guide their decision making, knowledge about the legal subject is increasingly algorithmically produced. Statistical predictions about the legal subject displace qualitative knowledge about their intentions, motivations, and moral capabilities. The reasons why a particular defendant might refrain from recidivism, for example, become less important than the statistical features they share with historical recidivists. This displacement of individual knowledge with algorithmic predictions diminishes the participation of the legal subject in the epistemic processes that determine their fundamental liberties. This produces the death of the legal subject, or the emergence of new, algorithmic practices of signification that no longer require the input of the underlying individual
How Free Should a Freeport Be?: Reducing Money Laundering in the Art Market through Freeport Regulation
Get PDFThe tax incentives that luxury freeports provide have created opportunities for money laundering and other forms of financial crime through the sale of art. The use of such institutions in combination with the anonymity that art transactions allow can create a series of transactions that are difficult to track, making the market ripe for corrupt behavior. Legislation like the Anti-Money Laundering Act, the Bank Secrecy Act, and the Money Laundering Control Act have helped reduce financial crime, but an approach more narrowly tailored to the art market and the freeports that enable its high value sales would further the goals of those statutes.
This Note suggests that the United States should adopt a regulatory framework that requires luxury freeport operators to keep lists of freeport contents and contact information that are accessible to law enforcement officers during domestic investigations. Such a policy would reduce financial crime and increase transparency in the art market. The Note also offers suggestions for tax incentives that would increase the public display of privately owned art
Call Me, Beep Me, If You Want to Reach Me: Utilizing Telemedicine to Expand Abortion Access
Get PDFIn June 2022, the Supreme Court handed down its decision in Dobbs v. Jackson Women’s Health Organization. The decision confirmed what the public already knew. An anonymously leaked draft version of what ultimately became Justice Samuel Alito’s majority opinion had braced the country for Dobbs’s keyholding. Overturning decades of precedent, the Court found that there is no right to abortion in the United States Constitution. Shortly thereafter, states began implementing restrictions and near-total bans on abortion. These laws had an immediate effect on the safety of pregnant people. In Tennessee, a state where abortion is now outlawed, one woman had to brave a six-hour ambulance drive, with rising blood pressure and signs of kidney failure, to North Carolina to abort a nonviable fetus. The abortion landscape post Dobbs is riddled with inequitable access to reproductive healthcare-—healthcare which is vital to patients’ health and survival. But even in states where abortion is legal, a gap remains: without meaningful access to abortion service providers, a right to abortion is in name only.
Those seeking an abortion face two critical problems: validating their right to an abortion and finding meaningful access to effectuate that right. Addressing the former problem, several states have successfully passed state constitutional amendments protecting abortion since Dobbs. A checkerboard, state-centric approach to abortion protection, however, only amplifies accessibility issues for those in abortion-restricted states or in remote areas without access to abortion providers. Addressing the latter problem, some administrative action has attempted to curb the abortion access issue. The Biden Administration has authorized the use of telemedicine to conduct abortion consultations and prescriptions for abortion pills. While this administrative action does work for patients of today, the impact is only temporary. Administrative solutions are conducted at the behest of political power. Any antiabortion president could direct the agency to reverse course. A permanent solution that addresses both problems is needed.
This Note suggests that federal legislation codifying telemedicine abortion procedures into statutory law solves both the problem of legitimizing a right to abortion and finding meaningful access to the procedure. Telemedicine is one of the easiest ways to reach patients in parts of the country, like Guam, with limited access to in-person abortion providers. By grounding the right to abortion in federal, statutory law, Congress sets a mandatory “floor” for abortion rights that states may not overly restrict. This solution, by nature of being a legislative, rather than a judicial, proposal, will ensure consistent access to abortion. Ultimately, federal codification is the most practical way to protect a vital aspect of reproductive healthcare in the United States
Developing Inclusive Language Competency in Clinical Teaching
Get PDFDrawing from legal pedagogy, litigation practice, and teaching experience, this article seeks to compile a set of key considerations for inclusive language decision-making in the clinical setting. Using a multi-factor framework--accuracy, precision, relevance, audience, and respect-this analysis explores the process for deciding on terms to use in practice and the potential implications of those choices on student learning, case outcomes, and attorney-client relationships. In addition, this article explores some current trends and best practices when adopting these principles in the context of specific groups. This article connects these principles to broader academic and practice is- sues, including the American Bar Association accreditation standards and Rules of Professional Conduct
Gender, Credentials, and M&A
Get PDFFor the past several decades, women have made up roughly half of law school classes and the ranks of entering law firm associates. Attrition between entry to law firms and partnership results in women comprising 20% to 25% of partners. But is there yet more attrition to the top of the partnership pyramid? Analyzing the past decade of data on publicly filed M&A deals and detailed biographical information of M&A lawyers, we find that women make up fewer than 10% of deal leaders. When we look at the factors that determine who becomes a deal leader, we find that credentials—both educational and professional—matter. But they matter more for women. And one credential—attending a top law school—seems to matter a lot. Using conversations with senior lawyers, we try to get answers for why
Fine Balance: Empire, Neoliberalism and the Fair and Equitable Standard of Treatment in International Investment Law
Get PDFIn this article, I show how the framework of empire remains central for analyzing contemporary international investment law. Moving beyond criticisms about the domination of global South polities by the West, or by a transnational capitalist class, I suggest instead that ‘empire’ can help us analyze the protocols of reasoning in investor-State arbitrations. Through a close reading of scholarship on the fair and equitable (FET) clause, and a recent arbitral award arising out an FET claim, I show that the field is characterized by an imperial mode of legal reasoning. This mode was reason was produced by a foundational distrust of postcolonial developmental States. It involves judging concrete State action against a fictional universal baseline that represents the ordoliberal utopia of an austere rule of law bound State. Crucially, in investor-State dispute settlement, this form of reasoning remains discernible even when foreign investors do not succeed