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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
Water We Cannot See: Codifying a Progressive Public Trust to Protect Groundwater Resources from Depletion
Get PDFGroundwater provides a vital water supply and plays an integral role in hydrological systems by supporting biodiversity and the overall health and functioning of surface waters. Yet, the current legal landscape in the United States premises groundwater management on outdated scientific understandings of hydrology and fails to adequately protect critical groundwater resources. Moreover, states differ significantly in their groundwater management practices despite the interstate nature of many aquifers. As climate change exacerbates stress to groundwater resources, many of the United States’ largest aquifers rapidly approach depletion.
The public trust doctrine may provide a mechanism to regulate groundwater resources in the United States. While the public trust doctrine traditionally applies only to navigable surface water, this Note demonstrates that codification of public trust principles could, and should, expand the doctrine to include groundwater. This Note proposes a federal codified groundwater protection statute rooted in public trust principles. A federally codified groundwater trust would provide the necessary standards to achieve more unified groundwater management. By requiring the government to act as groundwater trustee, this Note’s proposed groundwater trust would facilitate the protection of rapidly depleting groundwater resources to ensure water availability well into the future
The Emerging Jurisprudence of the African Human Rights Court and the Protection of Human Rights in Africa
Get PDFDuring most of the post-independence period, many African countries have either been unwilling or unable to protect human rights or relegated this important function to a small group of poorly funded but brave and courageous non-state actors. Most importantly, some African governments have either actively engaged in human rights violations or failed to bring to justice those who have committed atrocities against their fellow citizens. In the 1970s and 1980s, many African heads of state were more concerned with national sovereignty in an effort to hide the violation of human rights committed within their jurisdictions than participating in the building, within the continent, of supranational institutions for the protection of human rights. Despite this opposition, the Organisation of African Unity (OAU) was still able to adopt the African Charter on Human and Peoples’ Rights (Banjul Charter) in 1981, paving the way for the eventual adoption of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (African Court Protocol) in 1998—the latter established the African Court on Human and Peoples’ Rights (African Human Rights Court), as the judicial arm of the African Union. Since the Court officially commenced its operations in November 2006, it has developed a relatively progressive human rights jurisprudence, which provides the continent with a solid foundation for the adjudication of cases involving the violation of human rights. However, its sustainability is being threatened by financial instability, the unwillingness of African Union (AU) member states to accept the Court’s rulings, and the decisions by some countries to take actions that deny their citizens and nongovernmental organizations (NGOs) within their jurisdictions the right to directly bring cases to the Court. The way forward calls for the AU to greatly strengthen both the Court’s financial and institutional architecture and its independence and ensure that its rulings are accepted and respected by all member states
Unenforceable Waivers
Get PDFTextbook tort law establishes that waivers of liability-—especially those involving physical harm-—are often unenforceable. This Essay demonstrates through an extensive survey of the case law that despite being unenforceable, such waivers remain in widespread use. Indeed, defendants frequently use waivers even when a court has previously declared their specific waivers to be void. So why do such waivers persist? Often the simple answer is to hoodwink would-be plaintiffs. Waivers serve as costless deterrents to tort claims: Either they dupe naïve victims into believing that their claims are barred, or if not, the defendant is no worse off than before. Such flouting of unenforceability doctrine undermines the goals of the tort system-—denying compensation to victims and eroding the care incentives of prospective injurers. In this Essay, we focus some long-overdue attention on the problem of unenforceable waivers and explore some solutions
SPAC Mergers, IPOs, and the PSLRA\u27s Safe Harbor: Unpacking Claims of Regulatory Arbitrage
Get PDFCommunications in connection with an initial public offering (IPO) are excluded from the safe harbor for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995 (PSLRA). Unsurprisingly, IPO issuers do not share projections publicly-—the liability risk is too great. By contrast, communications in connection with a merger are not excluded from the safe harbor, and special purpose acquisition companies (SPACs) routinely share their merger targets’ projections publicly. Does the divergent application of the PSLRA’s safe harbor in traditional IPOs and SPAC mergers create an opportunity for “regulatory arbitrage” and, if so, what should be done about it? This Article offers a framework for evaluating these timely questions and for evaluating claims of regulatory arbitrage more broadly. The analysis brings into sharp focus the contestable policy choices that undergird the IPO exclusion to the PSLRA’s safe harbor
Patent Forfeiture
Get PDFPatent law doesn\u27t look kindly on patent owners who engage in wrongdoing involving the patent. The U.S. Supreme Court and lower courts have refused to enforce patents tainted with inequitableness, fraud, or bad faith. This issue typically arises in patent litigation when an accused infringer asserts that the patent should be unenforceable if the patentee engaged in one of four proscribed activities: inequitable conduct (deliberate misrepresentations or omissions of material information from the Patent Office); patent misuse (anticompetitive licensing practices); unclean hands (business or litigation misconduct); or waiver/estoppel (a lack of candor before a standard-setting organization). This seems right--a patentee shouldn\u27t be allowed to benefit from wrongdoing.
However, the use of unenforceability to remedy patentee misconduct is largely understudied and undertheorized in legal scholarship. One reason is doctrinal. Aside from the four proscribed activities, there is no clear-cut remedy for other types of patentee misconduct involving the asserted patent. For instance, should a patent for a nutritional supplement that makes affirmative misstatements about its safety and efficacy be enforceable? How about a patent that plagiarizes someone else\u27s copyrighted work or makes intentionally misleading assertions about the invention\u27s capabilities?
This Article seeks to answer these questions and fill the doctrinal and scholarly gap in patent unenforceability remedies. It offers a new, unclean-hands-based theory of unenforceability called patent forfeiture. If a patentee engages in egregious pre- or post-issuance misconduct involving the patent and gains an inequitable benefit from it or harms a third party, the patentee may forfeit the right to enforce the patent until the misconduct has been abandoned and its ill effects dissipate. Patent forfeiture adopts the hallmarks of equity -flexibility, discretion, and individualization-but is sufficiently constrained to align with other policy objectives of the patent system. And while morality, conscience, and good faith may not play a role in obtaining a patent, patent forfeiture reaffirms the importance of these equitable principles in enforcing a patent
Cancelling Dr. Seuss
Get PDFDr. Seuss Enterprises announced in March 2021 that it would no longer license or publish six of its children’s books because those books portrayed people in racist or culturally stereotypical ways. Since then, the public has learned through news reports and social media that other publishers have similarly reviewed and altered their catalogues of classic children’s works, including withdrawing them from the public, editing them to remove problematic content, or adding disclaimers to warn the public about racially insensitive or outdated content. The public reaction to Dr. Seuss’s decision and these other actions has been largely divided. Some criticized these decisions as censorship or a product of “cancel culture.” Others applauded the decisions as a long overdue reckoning with problematic portrayals in children’s works. While recent decisions to alter or withdraw classic works have generated significant attention and controversy, it is in fact not uncommon for authors, copyright owners, and publishers to remedy racist or sexist content in their expressive works, especially in works intended for children.
This Article examines one approach that copyright owners have taken to deal with racist, sexist, or otherwise problematic classic children’s works—ceasing to make those works available to the public. Specifically, copyright owners have attempted to withdraw certain problematic children’s works by ceasing to publish, license, perform, or broadcast those works, and otherwise making those works unavailable to the public. This Article reviews well-known examples of copyright owners ceasing to make their popular children’s works available to the public, including Dr. Seuss’s refusal to publish or license six of its books, United Artists’ failure to broadcast cartoons known as the “Censored Eleven,” and Disney’s rejection of its controversial film Song of the South. It examines the copyright law and policy implications of those actions, and explores the balance and conflicts between copyright policy, free speech, and social policy
Representative Rulemaking
Get PDFThe dominant form of lawmaking in the United States today-—notice-and-comment rulemaking—-is not a representative process. Notice-and-comment simply invites public participation, leaving the overall balance of engagement with the proposed regulations to the choices of individuals, public interest groups, trade groups, and regulated businesses. The result is a predictable one: In most rulemakings, industry voices dominate, and in many rulemakings, there is no participation by citizens or public interest groups. This representation deficit must be taken seriously. The basic rationales for a notice-and-comment rulemaking process depend upon some level of representation for those affected. The goal of providing the agency with higher-quality information, for instance, cannot be achieved if information flows in only one direction. So too, participation in rulemaking could only function as a forum of accountability to the public if those affected by the proposal have engaged substantively with the proposal. At the most basic level, lawmaking powers should be constrained by some structural provisions for representation.
To address this representation deficit, this Article defends two proposals. First, it argues that agencies should be required, at the outset of their rulemakings, to identify the key stakeholders from whom they expect engagement, and in their final rules, to identify the extent to which participation lived up to those expectations. This “representation floor” would provide a baseline for representative participation to which the agency would be accountable—to itself, the public, Congress, and the courts. Second, in rulemakings where less powerful interests are likely not to participate, this Article argues agencies should hold proxy representation contests to solicit and select an interest group or groups to serve as a representative of underserved interests. These proposals would institutionalize mechanisms to ensure that rulemakings include representation from all those it affects. In terms of implementation, these proposals could be adopted by agencies, through an Executive Order or OMB directive, or by legislation. More generally, this Article reflects a shift in thinking about administrative law by insisting that representation deserves a place as a foundational administrative law value on par with the traditional values of the field of law such as notice, transparency, and reason-giving
Is a Child\u27s Life Twice as Valuable as an Adult\u27s?
Get PDFThe rise of interest in evidence-based policymaking has created incentives for regulatory agencies to demonstrate the overall benefit-cost merits of their policies. An agency can use evidence to choose more cost-beneficial policies, or it can create the appearance of desirable policies by changing the ground rules by which it assesses a policy\u27s merits.
The Consumer Product Safety Commission (CPSC) recently chose the latter course when monetizing the benefit of mortality risk reductions for children from a proposed safety standard for operating cords on custom window coverings. The cords are currently estimated to be responsible for nine fatal injuries annually. Each of those deaths is a tragedy, but together their loss as measured by typical value of a statistical life (VSL) estimates would not justify the cost of the proposed standard. Instead of accepting that calculus, the CPSC changed its policymaking rules to double-and considers tripling-the VSL to analyze the proposed rule
The Federal Government\u27s Role in Local Policing
Get PDFFor far too long, the federal government has failed to exercise its constitutional authority to mitigate the harms imposed by local policing. Absent federal intervention, though, some harmful aspects of policing will not be addressed effectively, or at all. States and localities often lack the necessary capacity and expertise to change policing, and many states and localities lack the will. This Article argues for federal intervention and describes what that intervention should look like.
The Article begins by describing three paradigmatic areas of local policing that require federal intervention to create real change: excessive use offorce, racial discrimination, and the unregulated use of surveillance technologies. Because state and local governments are either unable or unwilling to address these problems alone, the federal government should intervene to identfy and enforce minimum standards, develop best practices, collect data, and distribute resources nationwide.
Regrettably, Congress has failed to act adequately to improve local policing for the better, although it has tried to encourage reform through the use of its Spending Power. This Article argues that Congress should utilize its regulatory powers under Section 5 of the Fourteenth Amendment and the Commerce Clause to address these paradigmatic problem areas, and it explains how this can be done consistently with Supreme Court doctrine.
Alongside--or in the absence of--congressional action, the executive branch has the power and responsibility to act to address policing\u27s harms. The Article explains that, though indirect, the President wields considerable power to influence policing by setting policy, implementing federal programs, enforcing civil rights, and supervising federal law enforcement. Although the executive branch should use this power to promote local policing that is effective, fair, and accountable, and that minimizes harm, administration after administration has failed to do so consistently and also has failed to holdfederal law enforcement to these standards. Recent executive branch efforts have improved the situation, but there still exists a gaping chasm between how the federal government should be influencing local policing and how it is doing so today