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Redefining Beneficial Use to Combat Water Scarcity
Get PDFMany western states in the U.S. are experiencing severe or exceptional drought, where water shortages are common, widespread, and have created troubling emergency conditions. How long these droughts plaguing the West will last is unknown. What is evident, however, is water use under a wellestablished doctrine must change in order to ensure communities do not run out of water. As a decades-long drought persists, frequent higher-than-average temperatures linger due to climate change, and population growth skyrockets, the need to implement a narrower standard for water use in the West is critical.
The purpose of this Comment is to propose an amendment to the prior appropriation doctrine such that the doctrine promotes sustainable water use, ultimately acting as a hedge against current and future water scarcity crises. This Comment begins with an overview of the current water scarcity crisis, including drought conditions throughout western parts of the United States. Part III then provides a summary of the prior appropriation doctrine, paying special attention to the doctrine’s most important element—beneficial use— before moving into a brief discussion of the main benefits and drawbacks of the current definition of beneficial use. This Comment will end by presenting a modified definition of beneficial use to better equip prior appropriation states with managing water use in areas prone to drought, followed by discussion of likely criticisms of such a redefinition
Climate Choice Architecture
Get PDFPersonal choices drive global warming nearly as much as institutional decisions. Yet, policymakers overwhelmingly target large-scale industrial facilities for reductions in carbon emissions, with individual and household emissions a mere afterthought. Recent advances in behavioral economics, cognitive psychology, and related fields have produced a veritable behavior change revolution. Subtle changes to the choice environment, or nudges, have improved stake-holder decision-making in a wide range of contexts, from healthier food choices to better retirement planning. But the vast potential of choice architecture remains largely untapped for purposes of climate policy and action. This Article explores that untapped potential and makes the case for nudges to become a cornerstone of public and private climate governance, targeting both institutional and individual decision-making. Nudges are nimbler than most conventional regulations and adapt more readily to changing climate circumstances. Climate choice architects can build on a proven track record of successful behavioral interventions in water conservation, waste management, and other domains of environmental law and policy. Bipartisan approval of other prominent nudge campaigns demonstrates the potential of choice architecture to help defuse the increasingly polarized politics of climate change. Moreover, nudges not only improve the efficacy, efficiency, and equity of public policy but also amplify the impact of private governance action on climate change. As catalysts for more informed choices, climate nudges can further alleviate concerns over climate justice by transforming previously passive stakeholders into active decision-makers in the transition to a low-carbon economy. Despite their well-documented success, nudges have produced their share of discontents. But even the most outspoken critics support nudges that mitigate information asymmetries and remedy market failures, like the disastrous externalities imposed by greenhouse gas emissions
The Failure of Market Efficiency
Get PDFRecent years have witnessed the near total triumph of market efficiency as a regulatory goal. Policymakers regularly proclaim their devotion to ensuring efficient capital markets. Courts use market efficiency as a guiding light for crafting legal doctrine. And scholars have explored in great depth the mechanisms of market efficiency and the role of law in promoting it. There is strong evidence that, at least on some metrics, our capital markets are indeed more efficient than they have ever been. But the pursuit of efficiency has come at a cost. By focusing our attention narrowly on economic efficiency concerns—such as competition, friction, and transaction costs—we have lost sight of other, deeper values within our economic system, including wider conceptions of duty, fairness, and morality. And while regulators sometimes pay lip service to these values, they often treat them as merely a subset of efficiency: the best way to treat investors fairly, to promote equality, and to prevent immoral, exploitative behavior, in this view, is simply to create an efficient market. We have seen the consequences of this emphasis play out in spectacular fashion in the last decade. New market structures and technologies—from special purpose acquisition companies to social-media oriented trading apps to cryptocurrencies—have emerged to eliminate barriers to trade and compete with institutional incumbents. These strategies may well lead to more efficient markets insomuch as they facilitate access to capital, but they also have the side effect of placing unsophisticated individuals into complex contractual arrangements with sophisticated market actors. The result is an “efficient” market, but one with steep moral and social costs. This Article examines the limits of market efficiency as a regulatory goal and suggests a set of structural and substantive reforms aimed at better balancing efficiency with the other goals of markets. It concludes that regulators, courts, and scholars alike need to adopt a more comprehensive understanding of the proper ends of market regulation, one that emphasizes the purpose and spirit of finance over the false promise of efficiency
A Look at America – Part 4 – The Impact of Dispute Resolution-Related Concepts and Skills Upon Legal Practice and Education
No full textEven though American lawyers regularly engage in negotiation, mediation and arbitration, they seem to have developed a reputation for extreme litigiousness. The last installment of A Look at America examines how dispute resolution-related concepts and skills actually are central to the identities and practice of American lawyers who are part of certain professional movements, such as Collaborative Law
A Look at America: Dispute Resolution-Related Developments and Innovation in U.S. Courts – Part 1
No full textIn 2013, ProfessorCarrie Menkel-Meadowdescribedthehistory of the contemporaryADR (alternativedispute re-solution) movement in the U.S.,as well as thestatusofthefield at that point. In this issue of ZKM,webeginafour-part series updating the status of the dispute resolutionfield in the U.S., identifying meaningful developments,surveying relevant empirical research, and consideringchallenges. The series begins with this installment’sexa-minationofareas of development and innovation incourt-connecteddispute resolution, particularly focusingon the use andevaluation of onlinedispute resolution(ODR) as well as advocacy for special masters (nowcalled“court-appointed neutrals”). Future installments will con-sider empirical research regarding mediation,focusingparticularly on the effects ofvarious interventions such asthe use of caucus, developments in private mediation andarbitration, and dispute resolution-influenced develop-ments in legal practice and educationinthe U.
Rethinking Education Theft Through the Lens of Intellectual Property and Human Rights
Get PDFThis Essay problematizes the increased propertization and commodification of education and calls for a rethink of the emergent concept of “education theft” through the lens of intellectual property and human rights. This concept refers to the phenomenon where parents, or legal guardians, enroll children in schools outside their school districts by intentionally violating the residency requirements. The Essay begins by revisiting the debate on intellectual property rights as property rights. It discusses the ill fit between intellectual property law and the traditional property model, the impediments the law has posed to public access to education, and select reforms that have emerged both inside and outside the property regime. The Essay then turns to the debate on property and education in the human rights context. It argues that the norms and practices relating to the human right to education provide important insights into the debate. It also states that the discussion in the human rights forum will help evaluate the effectiveness and limitations of introducing positive rights to foster public access to education. The Essay concludes by applying the insights gleaned from the debate on property and education in the intellectual property and human rights contexts to the phenomenon surrounding so-called “education theft.” Specifically, the Essay calls for the development of a more sophisticated understanding of property rights in their historical and socioeconomic contexts, a careful evaluation of the expediency of criminalizing residency requirement violations, and an exploration of potential technological solutions to address problems raised by these violations
The Combined Use of Trademarks or Service Mark with Certifications Marks or Collective Marks
No full textThis chapter covers certification and collective marks and their combined use with trademarks and service marks. Trademarks and service marks indicate the individual commercial origin of the products and that all products identified by a specific mark share the same quality. On the other hand, certification marks identify products with specific pre-set standards that typically include product quality and safety, labour and environmental practices, and, geographical origin. The chapter also defines collective marks as trademarks or service marks owned collectively by a group either to identify their products or to indicate collective membership to a club or association. It then elaborates on the role the US and EU trademark systems have had on the development of trademark laws worldwide
Floating Liens Over Crypto-in-Commerce
Get PDFCommercial law and crypto are colliding. Against the backdrop of explosive growth (and discord) in the digital asset market, there has been a series of recent revisions to American commercial law aimed at addressing new and emerging technologies. These changes to the Uniform Commercial Code (UCC) are designed to facilitate the buying and selling of digital assets as well as their use as collateral. However, to date, the literature exploring these changes has mainly focused on understanding the basics of the new regime. This Essay moves beyond that baseline by showing how the UCC amendments can be used to structure more complex secured credit arrangements that tap into the borrowed capital potential of blockchain technology. Specifically, this study explains how these recent law reforms—in concert with the inherent capabilities of distributed ledgers, smart contracts, and cryptography—can be used to create a floating lien (the quintessential financing device in American commercial law) over crypto inventory
Opening the Virtual Window: How On-line Processes Could Increase Access to Justice in the Criminal Legal System
Get PDFThis article explores the potential of technology to improve access to justice (A2J) in criminal courts, specifically for nonviolent misdemeanor cases. Despite a push for innovation in courts, criminal courts have been slow to embrace change and technological innovation due to factors like constitutional constraints and funding limitations. This article argues that criminal courts need virtual windows alongside traditional brick and mortar doors to enhance A2J. It proposes a problem-solving approach focusing on misdemeanor cases, a high-volume category where technology can have a significant impact. The paper highlights the importance of ensuring defendants make knowing and intelligent pleas despite the often-real consequences of misdemeanor convictions. The analysis also proposes a green light, yellow light, red light framework to categorize technologies based on their potential to improve A2J vs. the dangers they pose for defendants. Notably, the article acknowledges the digital divide but argues that the increasing prevalence of mobile devices and internet access necessitates exploring technological solutions for lowering barriers to justice. The paper concludes by calling for the adoption of green light technologies to improve A2J in misdemeanor cases, while acknowledging the need for thoughtful implementation to avoid unintended consequences. It also suggests further research with respect to “yellow light” ideas that may be worth further exploration with an aim toward furthering fairness and A2J
Hotels in Distress: Surviving an Economic Downturn Through Non-Traditional Contracting
Get PDFThe hospitality industry is no stranger to market fluctuation, but with the onset of a global pandemic, 2020 left its mark as the worst year on record for the industry. With vacancy permeating hotels across the nation, hotel owners faced a year of tough financial decisions, while the unrelenting demands of mortgage payments and operating expenses loomed in the background. Uncertainty became the new normal, and the term “unprecedented” became commonplace as the pandemic lingered beyond initial expectations. The one-year anniversary of the 2019 novel coronavirus (“COVID-19”) pandemic passed without effect as the crisis situation spilled over into a new year. Struggling to survive the economic devastation accompanying the pandemic, many hoteliers pursued alternate income sources. However, alternate usage is not an entirely foreign concept in the hotel industry. While the emergency response to COVID-19 has been by far the largest scale the nation has experienced, it is certainly not the first. Hotels across the country have contracted in the past to provide emergency response in disaster situations, such as hurricanes, wildfires, floods, and for non-disaster housing for the homeless. As of the time of publication of this Comment, the pandemic itself has waned, but the economic effects remain. Although no one can truly predict when the pandemic will fully subside and the economy will return to normal, the current situation is surely a temporary one. What can hotel owners learn from the global pandemic, and will this crisis permanently change owners’ business models? The most resilient of business owners will glean valuable lessons, adapt their approach, and press forward. This Comment highlights key areas of concern with alternate usage and provides practical guidance for hotel owners struggling to survive the pandemic’s crippling effect on the economy and implement plans for the future