8145 research outputs found
Sort by
Renewable Energy Federalism 2.0
No full textMuch like climate change, the clean energy transition presents a “super wicked” problem that is further complicated by prioritizing justice. History has taught us that government regulation, industry innovation, and community engagement are the catalysts of effective transitions. Similarly, the just energy transition requires the support of these interconnected networks. This Essay offers sustainable collaborative governance as a theoretical framework through which decision-makers may filter their assessments, industry can model its metrics, and community can develop language to articulate its needs. Sustainable collaborative governance is also a means of navigating the complexities of renewable energy siting and regulation while fostering resilience, community engagement, and holistic governance that prioritizes long-term sustainability. By integrating diverse perspectives and values across sectors, Renewable Energy Federalism 2.0 positions itself as a viable pathway toward achieving a just and sustainable energy transition amid political and regulatory uncertainties
Foreward: Environmental and Energy Regulation Reformation: Challenges and Solutions After West Virginia v. EPA, Sackett v. EPA, and Loper Bright Enterprises v. Raimondo
No full textImmigration, Federalism, and the Invasion Clause: Who Has a Seat at the Table in Disputes Over the State Power to Repel Immigrant Invaders
No full textIn Arizona v. United States, the Supreme Court famously invalidated an Arizona statute that criminalized immigration violations and empowered state officials to enforce immigration law. Arizona seemed to settle the issue of whether states can regulate immigration for the following decade. In the last year, however, questions around the division of federal and state power over immigration regulation have once again come to a head. States, including Texas, Oklahoma, and Iowa, have begun enacting state-level immigration regulatory schemes that threaten to violate immigrants’ substantive rights. One factor that distinguishes the present moment from 2012, the year the Court decided Arizona, is the emergence of two new constitutional provisions offered in defense of state immigration regulation: Article IV, Section 4’s Guarantee Clause and Article I, Section 10’s State War Clause. Both provisions govern the division of federal and state power during a time of invasion. Texas, in particular, has argued that the State War Clause authorizes states to defend their territory against what it characterizes as an immigrant invasion. Relying on the Invasion Clauses allows states to frame legal challenges to their immigration laws as an issue of state sovereignty, rather than a violation of immigrants’ rights. This Note considers who can be party to claims predicated on the Invasion Clauses and how states’ reliance on these provisions may have the effect of excluding immigrants and interest groups from litigation. It examines the division of federal and state power over immigration, state standing doctrine, and states’ historical reliance on the Invasion Clauses to conclude that states and the federal government are the only proper parties to an Invasion Clause claim. This Note argues that courts should avoid hearing an Invasion Clause claim to which immigrant interest groups are not party. Instead, courts should ensure that the parties with the most at stake have the opportunity to participate fully and meaningfully in litigation. To avoid such an outcome, this Note first argues that courts should not recognize state standing to bring an Invasion Clause claim related to immigration regulation. If courts do find that states have standing to bring such a claim, it argues in the alternative that courts should ensure immigrant interest groups are party to the claim either through intervention of right or appointment as amici
Judging Demeanor
Full text linkThis Article challenges the conventional wisdom that defendant demeanor—affect, body language, and physical appearance—helps juries assess guilt. On the contrary, we show that demeanor evidence poses an inherent risk of propensity-based reasoning. It invites jurors to convict defendants based on whether they “look like criminals,” rather than on the actual facts of the case. In doing so, demeanor evidence facilitates cultural and racial subordination. It enables members of dominant groups—consciously or not—to penalize members of less-dominant groups for failing to appear innocent or credible. We argue that existing law has things backwards. It treats defendant demeanor as presumptively useful and puts the onus on defendants to demonstrate prejudice. The proper approach, by contrast, would treat defendant demeanor as presumptively prejudicial and require the state to develop case-specific theories of probative value. This would give trial courts the tools they need to properly instruct juries and to regulate prosecutors, and it would revitalize the role of appellate courts in safeguarding trial fairness. Furthermore, it would integrate demeanor with other types of evidence, such as a defendant’s criminal history or sartorial presentation, already identified in the case law as inherently risky. We conclude by offering a number of concrete proposals to implement this change, including a new model rule of evidence (“Rule 404(c)”), restyled jury instructions, and ideas for reform beyond the courtroom
Legal Academia\u27s White Gaze
Full text linkFor Black law faculty, Blackness, the Black experience, and Black legal and social identity are not trends. Yet, there are inflection points where legal scholarship about race, particularly Blackness, is in vogue. The most recent rise in such legal scholarship came in the aftermath of George Floyd’s murder and the worldwide Black Lives Matter protests in 2020. When antiracist sentiment is high, the regard for scholarship central to the personhood of Black legal scholars is high. Even then, there is an expectation that Black authors write in ways that conform to the White norms of legal scholarship. Though central to critical scholarship, narrative and first-person accounts are often discounted as lacking the requisite data, information, or substance necessary to interrupt the norms of mainstream legal scholarship. Thus, Black scholars who write about Blackness experience an othering that signals our scholarship—and in essence, our being—is not normal. Since the late 1980s, Black law faculty have courageously used narrative in legal scholarship to highlight the challenges associated with teaching, scholarship, and service in the law school White space. Adding to that canon of literature, this Article examines how legal academia’s White gaze is an infrastructure of injustice for people racialized as Black. First, this Article pinpoints Whiteness as the infrastructure of injustice that undergirds legal academia’s traditions, practices, and policies. Next, this Article expands existing legal scholarship about the law school White space, focusing on embedded White norms and resulting behaviors, namely the know-your-place aggression and complicit bias that are key aspects of legal academia’s White gaze. Inspired by Toni Morrison and building on existing legal scholarship and concepts discussed herein, I define the White gaze as the operational norm of White space wherein Black people are scrutinized through the lens of Whiteness, resulting in their exclusion, subordination, and objectification. Next, this Article highlights the discursive and social practices of legal academia’s White gaze to illustrate how legal academia is an infrastructure of injustice for Black faculty engaged in the hallmarks of academic life: teaching, scholarship, and service. Finally, it briefly discusses dismantling Whiteness and centering Blackness
American Fiction: Overturning the Doctrine of Immigration Entry Fiction as Established in Shaughnessy v. Mezei
Full text link
Should Courts Make It Personal? Virtue-Dependent Doctrine and the Law of Executive Power
Full text linkRegulating Robo-Advisors in an Age of Generative Artificial Intelligence
No full textNew generative artificial intelligence (“AI”) tools can increasingly engage in personalized, sustained, and natural conversations with users. This technology has the capacity to reshape the financial services industry, making customized expert financial advice broadly available to consumers. However, AI’s ability to convincingly mimic human financial advisors also creates significant risks of large-scale financial misconduct. Which of these possibilities becomes reality will depend largely on the legal and regulatory rules governing “robo-advisors” that supply fully automated financial advice to consumers.
This Article consequently critically examines this evolving regulatory landscape, arguing that current U.S. rules fail to adequately limit the risk that robo-advisors powered by generative AI will convince large numbers of consumers to purchase costly and inappropriate financial products and services. Drawing on general principles of consumer financial regulation and the European Union’s recently enacted AI Act, the Article proposes addressing this deficiency through a dual regulatory approach: a licensing requirement for robo-advisors that use generative AI to help match consumers with financial products or services, and heightened ex post duties of care and loyalty for all robo-advisors. This framework seeks to appropriately balance the transformative potential of generative AI to deliver accessible financial advice with the risk that this emerging technology may significantly amplify the provision of conflicted or inaccurate advice