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The Third Age of Oil and Gas Law
Get PDFHistory’s biggest oil boom is happening right now, in the United States, ushering in the third age of oil and gas law. The first age of oil and gas law also began in the United States a century ago when landowners and oil companies developed the oil and gas lease. The lease made the modern oil and gas industry possible and soon spread as the model for development around the world. In the second age of oil and gas law, landowners and nations across the globe developed new legal agreements that improved upon the lease and won these resource owners a larger share of the benefits of oil and gas production. The third age of oil and gas law, which is now beginning, will be defined by three forces. First, fracking is transforming the common law doctrines that underlie oil and gas law and policy. Second, both private and public landowners are perfecting agreements that can win them a greater share of the oil and gas under their land. Third, public landowners are beginning to seek ways to balance their efforts to extract maximum value from their oil with their efforts to limit climate change.
This Article is the first to identify these ages of oil and gas law, which have been central to the development of law, the global economy, and the modern world. It also reveals the legal and economic logic of agreements between oil and gas companies and public and private landowners, and how they have evolved over the past century. And it describes how landowners could ensure maximum benefit from the unprecedented oil boom now transforming global oil production
There’s Nothing Worse than Losing to a Girl: An Analysis of Sex Segregation in American Youth Sports
Get PDFBattle of the Sexes: A History of Social Change and a Solution for Maintaining a Child’s Best Interest in Light of the #MeToo Movement
Get PDFRedefining Tribal Sovereignty for the Era of Fundamental Rights
Get PDFThis Article explains a longstanding problem in federal Indian law. For two centuries, the U.S. Supreme Court has repeatedly acknowledged the retained, inherent sovereignty of American Indian tribes. But more recently, the Court has developed the implicit-divestiture theory to deny tribal governments criminal and civil jurisdiction over nonmembers, even with respect to activities on tribal lands. Legal scholars have puzzled over this move from a territorial-based definition of tribal sovereignty to a membership-based definition; they have variously explained it as the Court’s abandonment of the foundational principles of Indian law, the product of the Court’s indifference or even racist hostility to Indians, or a simple lack of doctrinal coherence in the Court’s decisions. This Article provides a different explanation. The implicit-divestiture cases represent the Court’s effort to address a trilemma among three incompatible objectives: preservation of the traditional, territorial-based definition of tribal sovereignty, preservation of tribal governments’ placement outside the federalist structure of the constitutional order, and preservation of fundamental rights. The Court has chosen to resolve the trilemma by redefining tribal sovereignty to deny tribal jurisdiction over nonmembers. Whether right or wrong, the implicit-divestiture theory is the Court’s good-faith attempt to preserve as much tribal sovereignty as possible without infringing on fundamental rights or forcing tribal governments into the federalist structure
The Right to Access to Justice: Its Conceptual Architecture
Get PDFThe aim of this article is descriptive and analytical, rather than normative. This article aims to contribute to the current understanding of the ways in which modern legal consciousness builds, and is built by, the concept of access to justice. This concept, as part of the web of meanings that structures modern legal culture, provides the context in which modern subjects make sense of who they are and how they should interact with the world around them. This article examines the subjectivities, conceptual geographies, and interpretations of history created by the right to access to justice. It also examines a part of the horizon of understanding inhabited by the modern legal subject.
Part I of this article examines the relationship between the right to access to justice and contractualism, the paradigmatic way of founding the modern State. Contractualism, of course, is not the only way to ground this type of State. However, contractualism is one of its prototypical forms. Consequently, the place that access to justice occupies in this web of legal meanings allows for an understanding of its role as part of the modern legal consciousness. This part examines contractualism through Hobbes\u27s and Locke\u27s versions of social contract theory. While the theories of these two philosophers are not the only available interpretations of this form of grounding the modern state, their models were central to the emergence of contractualism and have left important traces in its complex and discontinuous genealogy. This section explores the conceptual geography created by the right to access to justice-the state of nature versus the civil state-and the role of access to justice in the decision made by autonomous, rational subjects to move from the former state to the latter. Access to justice is fundamental in the modern legal and political imagination for it motivates subjects to move from pre-political life to political life.
Conceptually, access to justice is relevant not only because it is considered a fundamental constitutional right by the constitutions of contemporary liberal democracies, but also because it constitutes one of the conceptual pillars of the modern State. In this imagined geography, nature is presented as the opposite of politics and law. In the state of nature, there is no impartial third party that has the power to solve conflicts or produce binding decisions; in civil state, the sphere of politics and the law, however, this collective subject is created as a consequence of the agreement achieved by individuals. The State is an instrument constructed to represent and act on behalf of all citizens.
Part II analyzes how the right to access to justice imagines the subjects that create and exercise the right. In the state of nature, contractualism imagines a single type of subject: a dual subject that is formed by both reason and passion. In the state of nature, human beings privilege their animal side in practice, though they have the capacity to act autonomously and rationally. Violence, motivated by passion, is converted into the means by which human beings resolve their conflicts. The absence of an impartial third party does not leave individuals with other options to protect their life and property.
Nevertheless, this animal subject recognizes that the only option for achieving peace and prosperity is the creation of a sovereign who can solve conflicts and monopolize the capacity to exercise violence in the political community. The animal subject is then converted into a political subject. The potential to become a full human being by means of politics goes hand-in-hand with the creation of an impartial third party and with the construction of a legal order that the third party should use to solve conflicts between citizens. Along with the animal subject and the political subject, a compound collective subject emerges in the civil state: the State which has the primary objective of creating the conditions for peace and prosperity of all political subjects. To meet this objective, the collective subject must solve conflicts between citizens and, if necessary, use its coercive power to make political subjects abide by its decisions.
Part III examines the relationship between access to justice and legal history in social contract theory. Legal history is the history that the political subject constructs and experiences. Natural law governs in the state of nature. Therefore, there is no legal history. The time of natural law is divine time: eternity. The creation of the State as an impartial third party marks the start of legal history. The time of access to justice is the time of the sovereign and the State. As long as the civil state exists, access to justice will exist. If the State, as an impartial third party, ceases to exist, there will be a return to nature, a return to the conceptual space where the animal component of human beings, (that of passion) is prioritized
Introduction
Get PDFThe papers gathered in this volume analyze access to justice in Latin America, Europe, and North America from a philosophical, legal, and sociological perspective. In these three regions of the world, as in the rest of the globe, liberal democracies face a troubling gap between the normative and the descriptive: the access to justice promises made by the legal and political system are not fully realized in practice. The studies collected here, therefore, share two baseline assumptions. First, the right of access to justice is fundamental in a liberal state. Access to justice ensures that citizens are able to defend their interests in court and achieve full inclusion in the political community. Access to justice, as argued by social contract theory, is at the core of liberal democracies\u27 normative projects. In the liberal democracies studied in this special issue-as in all others influenced by the post-Enlightenment modern project-contractualism and its commitment to access to justice is part of the of theoretical toolbox used to constitute and legitimize the political community. For all of these liberal democracies, access to justice is necessary for achieving peace and prosperity, and for the full inclusion of all citizens in the polity.
Second, the papers gathered in this volume agree that epistemological, socioeconomic, and legal market disparities obstruct the materialization of the right that citizens have to access courts and the administration to solve their conflicts. The key objectives pursued by liberal democracies cannot be fully realized because of poverty and inequality. Both variables have a causal relationship with the access to justice deficits faced by the countries studied in this special issue
Fines, Fees, and Filing Bankruptcy
Get PDFWhen faced with mounting civil or criminal court fines, fees, and interest- court debt, as broadly defined-people may consider turning to the bankruptcy system to deal with that debt. Every year, about a million people file bankruptcy, seeking to discharge most of their debts. Although most court debt is categorically nondischargeable, bankruptcy\u27s discharge may provide people struggling with court debt a way to wipe the slate somewhat clean so they have a better chance of paying such debt. Also, people who file bankruptcy under chapter 13--one of the two most common chapters filed by consumers are entitled to a so-called superdischarge that provides for the discharge of a few categories of debt that are not dischargeable in chapter 7.These categories include certain debts that fall under a broad definition of court debt.
Thus, for some people, filing bankruptcy may help them avoid incarceration because of their inability to pay court debt. Failure to pay court debt may also result in driver\u27s license suspension, which can lead to job loss, further exacerbating people\u27s debt problems. Bankruptcy law likewise may require that license suspensions be lifted. The threat of incarceration, license suspension, and job loss is particularly acute for racial minorities and economically vulnerable individuals-the very people at high risk of plunging into socially undesirable debt spirals that may lead them to consider bankruptcy.
In addition to whether bankruptcy will relieve them of their pressing debts, people who think about filing as an option to deal with their court debt face another, less obvious concern about filing bankruptcy. The consumer bankruptcy system itself is part of the court-debt machine and may perpetuate the inequalities that lead people to need to turn to it for help.
Every year, the number of bankruptcy cases filed is twice the number of other cases filed in federal courts. For example, in 2017, debtors filed about 790,000 bankruptcy petitions; in comparison, about 395,000 cases were filed in federal district courts and courts of appeal. The vast majority of these bankruptcy petitions are filed by consumer debtors, meaning that filing and other fees paid by the people who file bankruptcy are an important source of funds for the federal judiciary.
Of perhaps more concern, filing bankruptcy is so difficult that to succeed, the vast majority of people need to retain an attorney. But bankruptcy attorneys are expensive. Related to this expense and attorneys\u27 crucial role in facilitating people\u27s access to consumer bankruptcy, research shows that the system itself replicates economic and racial inequalities in society. Although filing bankruptcy on balance may help people deal with court debt and other debts, as detailed in Part I, the barriers that people face to filing, discussed in Part II, raise questions about the accessibility of civil courts and suggest that the consumer bankruptcy system itself is yet another place in which race (and to a lesser extent, economic class) matters in accessing the law\u27s benefits
How the Federal Reserve Should Help States and Localities Right Now
Get PDFThe COVID-19 pandemic is a giant catastrophe, but the Federal Reserve can still mitigate the looming fiscal crises facing state and local governments. This article — a contribution to Project SAFE (State Action in Fiscal Emergencies) — builds on our prior background essay explaining state and local budget issues
Patent Accidents: Questioning Strict Liability in Patent Law
Get PDFAccidental infringement of patent rights is a pervasive and growing problem in the Information Age. As IP rights proliferate and expand in scope, it is becoming increasingly easy for companies and individuals to inadvertently infringe patents. When such accidental infringement occurs, patent law holds the infringer strictly liable. This contrasts with many areas of tort law where defendants are only liable if they act negligently.
This Article questions the normative desirability of strict liability in patent law. Assuming the primary value of patent law is utilitarian, this Article poses the research question: what liability rule will maximize social welfare? This Article answers the question theoretically by applying economic models of accidents developed in tort law literature. The research finds that a negligence rule is preferable. Unlike strict liability, negligence liability will encourage both patentees and technology users to take reasonable measures to prevent accidental infringement, and thus minimize the social cost of patent accidents. Therefore, this Article recommends reforms to the liability rule in direct patent infringement cases. Defendants should be liable for accidental patent infringement only when they fail to adopt reasonable care to avoid the infringement
Toward a Theory of Intercountry Human Rights: Global Capitalism and the Rise and Fall of Intercountry Adoption
Get PDFThis Article proposes another mechanism for enforcement, an alternative to self-serving domestic policing and weak international bureaucracy. “Intercountry,” as opposed to “international,” human rights would apply to specific rights in specific contexts and be enforceable through the legal mechanisms and other resources of the state parties that accepted them. Intercountry adoption is a useful context in which to consider this proposal for several reasons.
First, as a practical matter, there have probably never been more babies and children in orphanages, on the street, on the market, or on their own. Yet intercountry adoptions have declined to levels not seen for almost forty years. Intercountry human rights would focus states on some of their most vulnerable people. They would also better protect would-be adoptive parents from a range of risks, from their children’s trauma to their own unknowing complicity in serious human rights violations.
Second, from a jurisprudential perspective, since virtually all of the states involved in intercountry adoption have ratified virtually all of the human rights instruments applicable in this context, the applicable human rights law is not in dispute. Receiving states and states of origin, moreover, presumably have a common goal—the best interest of the child. This is very different from the ideological conflict at the core of other interstate efforts to promote human rights, such as the Alien Tort Statute (ATS) litigation. Foreign support for human rights may also be more palatable when it involves family law, rather than ostensibly more important issues of trade or national security.
Finally, from a more theoretical perspective, the rise and fall of intercountry adoption, from the 1950s to the present, demonstrates the deep tension between human rights and global capitalism. By “global capitalism” I refer to capitalism unrestrained by national laws or shared ethical codes, what David Brooks calls “naked capitalism.” Intercountry adoption exposes the human costs of global capitalism in a specific, concrete, international context.
Part I of this Article describes the origins of the tension between human rights and global capitalism in the Cold War era, from the end of World War II to the collapse of the Soviet Union in the early 1990s. It explains how the American version of human rights veered off from the international version and why the American version prevailed. This Part also shows how the American version of human rights promoted intercountry adoption.
Part II explains how global capitalism changed the game. This Part focuses on the heyday of neoliberalism, from the elections of Ronald Reagan and Margaret Thatcher to the Great Recession beginning in 2008. It shows how neoliberalism reshaped human rights and produced a perverse “solution” for children in crisis.
Part III explains why intercountry adoption requires intercountry human rights. It begins by examining the unprecedented inequality that currently characterizes the global economy. It explains why the Hague Convention on Intercountry Adoption, enacted in the United States in 2008, cannot address the problems this creates for transborder adoptions. Rather, intercountry adoption requires the revival of the full panoply of international human rights and a fresh approach to their realization.
Part IV proposes a theory of intercountry human rights, drawing on the eighteenth-century philosopher Thomas Paine and the twenty-first-century economist Thomas Picketty. It explains how intercountry human rights would apply in the context of intercountry adoption and concludes by describing how intercountry human rights might operate in practice