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Contradictions and tensions in the way the USMCA regulates energy
No full textThe international regulation of energy is complex, involving various legal frameworks such as economic agreements, environmental conventions, and dispute resolution mechanisms. These instruments often overlap and may not align, creating challenges for addressing energy-related issues. The United States–Mexico–Canada Agreement (USMCA) exemplifies these complexities. It addresses entitlements to natural resources, protection of energy-related transactions, cross-border energy policies, and environmental externalities. However, the USMCA does not fully resolve conflicts among differing policy goals within the energy sector. This article examines how the USMCA navigates issues related to resource entitlements, energy transactions, policy clashes, and environmental concerns. It argues that the absence of a unified energy policy leaves disputes to be balanced by resolution bodies, such as arbitration panels. The article scrutinizes each aspect of the USMCA’s approach and discusses potential mechanisms for resolving policy conflicts. The USMCA’s treatment of energy-related matters underscores the intricate interplay between international economic law and the energy sector, with implications for regional competitiveness and sustainability
Swimming Together Upstream: How to Align MLP Services with U.S. Healthcare Delivery
Get PDFMedical-legal partnership (MLP) embeds attorneys and paralegals into care delivery to help clinicians address root causes of health inequities. Notwithstanding decades of favorable outcomes, MLP is not as well-known as might be expected. In this essay, the authors explore ways in which strategic alignment of legal services with healthcare services in terms of professionalism, information collection and sharing, and financing might help the MLP movement become a more widespread, sustainable model for holistic care delivery
A Perfect Storm for Legal Education: Privatization, Polarization, and Pedagogy
Get PDFToday, the legal profession faces new challenges to its integrity and legitimacy due to technological change, rising political polarization, and a stratified bar. In this Article, I first explore how technological innovations are undermining lawyers’ claims to a unique monopoly based on expert professionalism. These technologies are designed to transform routinized law practice in ways that improve efficiency. With little focus on attorneys’ obligations to serve the greater good, technology entrepreneurs emphasize practical advantages over traditional forms of representation. These proponents promise reduced costs and superior results through a single-minded commitment to market dynamics. Those promises in turn depend on displacing conventional lawyers and the expense they entail.
I then turn to the challenges that an increasingly polarized populace poses for any ambitious notion of social trustee professionalism, that is lawyering in the service of the greater good. As it becomes increasingly difficult to find common ground, one form of public-spiritedness that may generate broad consensus is safeguarding the administration of justice. This commitment can be cast as a purely procedural one that does not choose among competing substantive claims about the good life and the American way. Yet that narrow framing leaves the profession ill-prepared to resolve intensifying differences: proceduralism alone will not appease those who are results-oriented and distrustful of others who hold opposing views. Unlike technological advances, debates over polarization cannot plausibly be resolved through market solutions. Because seemingly irreconcilable values are at stake, lawyers as social trustees must demonstrate how the law sets boundaries for civil discourse and creates conditions for compromise.
Finally, I examine how the combined forces of technology and polarization are likely to affect legal education and the legal profession. As technology displaces various forms of routinized practice, lawyers who perform these services will be less in demand. Their share of the legal sector will shrink, and less prestigious law schools that train graduates for solo or small-firm practice will see enrollments drop. As these schools contract significantly, legal education will become increasingly identified with elite law schools that train graduates who serve privileged clients. At the same time, ordinary people will come to view their contact with the legal system as more akin to an online transaction. As a result, the basic understanding of law that arises through ordinary interactions with practicing attorneys will become increasingly rare. The general population will perceive law and the legal profession as a province of elites, and there will be growing distrust of legal institutions as a result. When lawyers have to resolve deeply polarized disputes—that is, the hard cases that make bad law—there will be few reserves of popular goodwill to support their efforts
A Look at America – Recent Research Regarding Mediation, Caucusing and Other Process Choices – Part 2
No full textThe second installment of A Look at America examines the last decade\u27s empirical research developments regarding dispute resolution in the U.S. In particular, Nancy Welsh describes comparative research identifying litigants\u27 pre-process preferences among available court-connected dispute resolution procedures and their post-process perceptions when their cases have reached disposition. She also describes research focusing particularly on mediation - e.g., the effectiveness of various mediator interventions, the incidence and effects of caucus (including premediation caucus), and the effects of diversity (or the lack of diversity) among mediators
A Response to Rules of Medical Necessity
Get PDFProfessors Monahan and Schwarcz’s recent Article in the Iowa Law Review, Rules of Medical Necessity, is a must-read for multiple audiences. In this short Response, I informally describe health insurance, and—using that perspective—describe and comment on why Rules of Medical Necessity is a piece of work that not only deserves attention from experts in the field, but is also one that casual readers should choose first when attempting to understand how health insurance works in theory and practice
A Modern Defense of Simple Rules for a Complex World
Get PDFMy 1995 book Simple Rules for a Complex World articulated a general proposition that, in most situations, simple legal rules perform better in two key dimensions: (1) they are simpler to interpret and enforce, and (2) they generate efficient incentives on the parties to whom they apply. I then applied that view to matters of general legal theory, to matters of environmental law, and to disputes over labor. These principles apply to all forms of legal regulation, but in this Article, I shall limit my analysis to the five articles in this Collection. These are by Richard Revesz on global warming, Cynthia Estlund on the contract at will, Lior Strahilevitz and Rebecca Hansen on labor organization efforts on company property, Lee Anne Fennell on price discrimination, and Franita Tolson on the independent state legislature theory. The Revesz Article takes an extreme position on responses to global warming that misses the inherent cyclical nature of the underlying determinants of global warming, and thus calls for prompt intervention in energy markets that is likely to prove far more costly and socially destructive than the current energy markets dominated by fossil fuels. The Estlund Article imposes unworkable restrictions on the ability to hire and fire that cannot work especially in two key contexts: both start-ups with high turnover rates as well as mass layoffs. Hansen and Strahilevitz defend an unduly aggressive application of statutes of limitations that would, if adopted, make it vastly more difficult to mount any challenge against virtually any regulation. I then offer a brief and sympathetic comment on Lee Ann Fennell’s price discrimination analysis, which demonstrates the ability of standard contractual forms to facilitate beneficial cooperation in a wide variety of market situations. Finally, the Tolson Article on the independent state legislature theory does not present challenges to the Simple Rules issue, but it does illustrate the perils often inherent in overly clever approaches to constitutional interpretation. A close examination of these articles shows how the dangers of complex legal rules, and the corresponding benefits of simple legal rules, are as relevant today as they were some 28 years ago
Vaccine Development, the China Dilemma, and International Regulatory Challenges
Get PDFThis article examines the role played by China in the development of international regulatory standards at the intersection of intellectual prop- erty, international trade, and public health. It begins by briefly discussing the role China has played in the global health arena during the COVID-19 pandemic. The article then highlights the difficulty in determining how best to engage with the country in the development of new international regula- tory standards. It shows that the preferred method of engagement will likely depend on one’s perspective on China’s potential contributions and hin- drances: a perspective that focuses on global competition—in the economic, trade, and technological arenas—is likely to differ significantly from one emphasizing global health. This article concludes by providing four key takeaways concerning the challenges and complications that China has posed, or will pose, to policymakers in the development of new international regulatory standards
Simplicity and Complexity in Law and in Markets
Get PDFRichard Epstein’s Simple Rules for a Complex World is true to its title and to the author’s demonstrated genius over a long career. It is a libertarian-oriented enterprise in that it requires the reader to share in the belief that government programs are often wasteful and subject to unattractive interest group pressures and corrupt bureaucracies. More generally, Simple Rules is framed against a background in which the reader must share the libertarian view that individuals can and should be trusted to look after themselves and to make their own choices. Epstein likes “simple” rules; these include strict liability, a flat tax, fee simple, and so forth. He argues that more complexity invites errors and corruption, and arguments for complexity undervalue individuals’ ability to bargain and otherwise fend for themselves. People know what is good for them far more than lawmakers. Anyone who does not share these fundamental views might be frustrated when reading this important book, unless perhaps the belief in redistribution and market failures is so great that one is willing to set aside the enormous costs of government failure. In any event, an insightful and friendly (and terrific) critique of the book has already been written by John Harrison, who thinks of Epstein’s book as a myth: What role should law play if the world were as Epstein (and perhaps Harrison and others among us) wishes it to be? As such, this Essay is neither a review nor a reaction, but instead offers the following two ideas that are stimulated by the book
Time to Heal: Trauma\u27s Impact on Rape & Sexual Assault Statutes of Limitations
Get PDFShort statutes of limitations for sex crimes ask the impossible of many victims: report the crime before they have recovered from the trauma. Perpetrators go free as a direct result of the injury they caused. Nearly a third of victims of rape and sexual assault have PTSD during their lifetimes. PTSD is associated with three symptoms pertinent to reporting a crime: avoidance coping (avoiding distressing thoughts, feelings, or reminders of the attack), dissociative amnesia (forgetting important or all aspects of the attack), and depression. These symptoms all affect a victim’s psychological ability to report a crime before a short statute of limitations runs.
This Article summarizes and critiques the current state of statutes of limitations across the country for rape, forcible rape, and sexual assault. In many states, the statute of limitations is shockingly short. No state tolls limitations periods for trauma-induced reporting delay, but every state should. In fact, given the rates of PTSD among victims and the associated symptoms, this Article advocates for extending statutes of limitations in all cases to ten years for rape and sexual assault and abolishing limitation periods for forcible rape. These changes will give victims more time to heal from the trauma inflicted on them, allowing victims to report when they are ready, and will help ensure that attackers will not escape punishment because of the trauma they inflicted
Special Challenges in Execution of Arbitral Awards in Public Private Partnerships
Get PDFWith around 47 million pending cases at various stages of Indian judiciary and one of the lowest levels of judges per million of population in the world, India’s arbitration regime presents a ray of hope for millions of Indians who face the prospect of justice being denied to them due to inordinate delays caused by a clogged judicial pipeline. The enactment of the Arbitration and Conciliation Act, 1996 was presented as a viable alternative to resolve commercial disputes in a timely manner. This paper uses a case study to discuss how arbitration in India has not fulfilled the timeliness promise and in turn, has detrimentally affected trade and investments, making the system an inefficient alternative to the contentious and long drawn litigations. The study of the DMRC dispute is distinguished because it involves a public-private partnership and is exceptional for two reasons. First, being the first public-private partnership project in metro rail infrastructure in the country, the extraordinary delay in execution of the arbitral award alone highlights the need to create a level-playing field when government is involved as a party. Second, the case showcases glaring loopholes in India’s existing arbitration regime which has allowed courts to unduly intrude and cause inordinate delays at every stage of the process, as a result of which, the amount of interest accumulatedeventually outstripped the principal sum initially claimed by DMRC’s private partner in the project. For instance, it took ten months to constitute an arbitration panel, 68 hearings to pass an arbitral award which culminated in 4.5 years from the date of invocation of arbitration clause by DMRC, several layers of appeal, most of which favored one party, and the execution of the award is still pending!! The paper concludes by recommending plausible solutions to strengthen India’s arbitration laws, so that the DMRC fiasco does not get repeated in future at perilous costs borne by foreign and Indian private investors