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Indigenous Women Book Display 2025 12
No full textClose up of book display created by Women of Color Collective in the law library October 2025 highlighting the book By The Fire We Carry: The Generations-Long Fight for Justice on Native Land by Rebecca Nagle.https://scholarship.law.tamu.edu/indigenous-women-2025-photos/1009/thumbnail.jp
Informational Properties of Liability Regimes
No full textFault-based liability regimes require an inquiry into the nature of the defendant’s conduct that is absent in strict liability regimes. Therefore, fault-based liability can convey superior information compared to strict liability. Further reflection reveals that this is true only if the evidence related to the nature of defendants’ actions is sufficiently informative. Otherwise, such evidence can add noise to the information conveyed through judgments. Thus, liability regimes affect the information conveyed to third parties, which, in turn, causes deterrence effects through informal sanctions imposed on defendants found liable. We formalize this function of liability regimes and identify the optimal liability regime and burden of proof as a function of various factors, for example, the commonness of liability and the informativeness of the evidence. The presence of reputational sanctions reduces the social desirability of using strict liability in the typical case in which imposing liability is not the norm
Rural Legal Markets
Get PDFResearch on rural access to justice tends to appeal to a romantic conception of rural lawyers as accessible generalists who serve the public through pro bono, low bono, and community service, and some characterize rural private practice as public interest work. Many commentators call for law school, bar, and government programs to attract law graduates to rural practice and at least 15 states have implemented such programs. Yet we know very little about modern rural legal markets or the recipes for sustainable private practice in rural places. The last statewide study of rural private practice was conducted in the 1980s. National data show that many solo and small firm practitioners are struggling, and some evidence suggests that rural practice is especially financially challenging. The broader literature on rural America paints a stark picture of economic decline. This literature raises questions about the centrality of efforts to increase the number of private practitioners as a strategy for meeting the legal needs of low-income rural communities.
This mixed methods study investigates the contours of private practice in rural South Carolina and the role of rural private practitioners in serving low-income clients and communities. It focuses on identifying the ingredients of sustainable rural practice and the incentives for rural practitioners to engage in pro bono and low bono work. The study has four main findings. First, rural private practitioners play a limited role in serving low-income clients and communities. Less than 25% of South Carolina’s rural practitioners practice in the state’s poorer rural counties, and some live an hour or more from the town in which they practice. Most report doing limited pro bono and discounted work. Second, specialization is a key ingredient for successful rural practice. New lawyers may take whatever clients they can get, but over time most practitioners become more specialized and less accessible, and some specialties can be lucrative, such as personal injury and real estate. Third, personal injury cases can be an important means of subsidizing less profitable work, but personal injury work has become more commoditized as the result of mass market advertising, making local ties less important to plaintiffs and making low-margin practice sustained by periodic personal injury cases less viable. Finally, family ties play an important role in attracting and sustaining rural private practitioners, raising questions about the scalability of recruiting lawyers without local ties.
Rather than providing incentives for private practitioners based on location, the study suggests that we look for ways to directly subsidize specific types of service based on evidence of legal need. In South Carolina, for instance, this might include offering health care benefits to lawyers for part-time public employment; raising the rates for criminal defense, guardian ad litem, and other public appointments; paying lawyers to provide on-site assistance to self-represented parties at county courthouses; and training other types of providers to provide specific types of assistance. We also should consider new ways of marketing flat-fee, routine legal services to make them more accessible to consumers and capture economies of scale: for instance, by allowing private practitioners to set up at Walmart and other retail locations; and encouraging the development of online service and referral platforms
Tomorrow’s Climate Law, Today
Get PDFThe prospects for domestic legislation or international treaties that would require governments, businesses, and individuals to stop emitting the greenhouse gases that cause global climate change are particularly bleak these days. Even as the United States has recently passed its most ambitious climate legislation to date in the Inflation Reduction Act and related “green industrial policy” legislation, these successes were ultimately a compromise with politicians who refused to consider more direct controls on emissions. Assuming they survive the second Trump Administration, the green subsidies and nudges contained in these laws, coupled with a groundswell of private environmental governance, will do much to put the United States on a better course to reach Paris Climate Agreement targets. But forcing emitters of greenhouse gases to internalize the costs of their emissions — politically difficult as it may be — will also be necessary to avert a climate catastrophe. When put to a vote, calls for these kinds of direct controls of emissions almost always yield the same, predictable answer: not today.
In this Article, I explore a potential change of approach that holds promise for surmounting these persistent political roadblocks to climate regulation and paving the way for binding limits on greenhouse gas emissions. The strategy builds on a well-known but underutilized device: sunrise lawmaking. Instead of writing laws and regulations that bind in the present, legislators using a sunrise deliberately delay the onset of any consequences for a significant period of time and, in so doing, buy political flexibility to take public-regarding action. This device holds enormous promise for dealing with climate law’s inherent intertemporal public choice problem — the fact that the costs of climate action land today while the benefits are realized only far in the future, when many present-day policymakers may not even be alive. While these dynamics doom most ordinary climate regulations right out of the gate, a climate sunrise sidesteps the present-day costs of action but starts a ticking clock that will culminate in stringent decarbonization obligations and steep penalties for noncompliance at some point in the future. Moreover, although a climate sunrise could always be rescinded, the same political cushion that enables enactment would serve as a buffer to rescission until closer to the sunrise, allowing the sunrise critical time to become entrenched in politics, economics, and law.
The climate sunrise device is not only well suited to evade the political strictures that predictably stall climate regulation; it is also a useful way of structuring and properly incentivizing an industrial transition. While a climate sunrise would not formally require any mitigation action until later in time, the incentives would be to prepare for the possibility of an eventual sunrise and to not save all compliance until the last minute. Moreover, simply encoding society’s expectations of a zero-emissions future would harness law’s expressive powers, leading to better coordination of needed transitions. In sum, there is much that a climate sunrise would do to complement existing industrial policy strategies for decarbonization even before it formally binds. Given the constraints on more present-oriented lawmaking to address the climate crisis, policymakers would do well to turn at least some of their efforts toward defining tomorrow’s climate law today
We Need to Talk: Modernizing Attorney-Client Jail Communications
Get PDFAttorney-client jail phone calls, video calls, and emails are all routinely recorded and monitored by jails, with numerous examples of jails and private telecommunications providers giving those recordings and emails to law enforcement and prosecutors. This widespread failure to protect the confidentiality of attorney-client communications prevents lawyers from being able to enjoy easy, quick, and regular communications with their clients. In practice, and despite the ever-expanding communication methods in the outside world, those held in jails in this country while their criminal cases are pending are effectively stuck in the nineteenth century when the only way to communicate was in person or through a written letter. The pandemic brought new urgency to this problem as jails closed and in-person visits stopped. This left lawyers with snail mail as the only option to communicate confidentially with their clients. This Article, in part, reports the results of a nationwide survey in which defense lawyers reported on the serious problems they had communicating with their jailed clients due to the failure of jails nationwide to guarantee confidentiality in electronic forms of communication, including phone calls. This Article challenges current practices. As the pandemic highlighted, this is no longer a small problem to be looked at through the lens of individual lawsuits, cases, and motions. The failure to protect attorney-client confidential communications is a systemic problem demanding systemic solutions. Moreover, the problem remains serious and steadfast even as the pandemic continues to recede and fade away; the pandemic acted as a spotlight, helping to focus on this issue and recognize its severity. Lawyers and clients have a strong interest—as well as a legal right—to engage in completely confidential communications. This Article brings to light a key interest that the courts have in protecting this right: it ensures the efficient running of a criminal legal system that relies almost exclusively on plea bargaining—a process that breaks down if defendants and their lawyers are not assured confidential communications. This Article concludes that the most direct path to meaningful change rests in criminal courts—the judges, the administrators, and the clerks each recognizing that their failure to take meaningful action with telecommunication service providers— to protect the confidentiality of electronic attorney-client communication impacts not just their legitimacy, but also the efficiency of court operations