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When Things Go Awry: Command Responsibility, Death Marches, and Unforeseeable Circumstances
Get PDFAlthough the events of the past year are in many ways unprecedented, they have resulted in circumstances that are common throughout history. The rise of a global pandemic has led to suffering in many forms, political powers shifting, militant coups rising, and countries facing protests as civil unrest becomes more prevalent. In these uncertain times, political leaders and the role of militaries have been even more scrutinized, revealing flaws that might have remained undetected if it was not for circumstances going awry. These current events have caused us to reflect upon incidents of the past when commanders have faced the uncertainty of how to complete their mission. History is wrought with instances in which the commander, despite having a “Plan B,” still fails to succeed in his role, thus resulting in hundreds of thousands of unnecessary lives lost. Specifically, this article focuses on three death marches—The Long Walk of the Navajo, The Bataan Death March, and Holocaust Death Marches—and the international law of command responsibility. In comparing and contrasting these three historic events through the lens of this law, we analyze the imposition of a commander’s criminal liability when unexpected events occur and he or she is called upon to make difficult decisions. In doing so, we also provide a historical backdrop of each commander’s ethical, moral, and tactical decisions, allowing us to explore what else could have been done, and who should be held liable for the actions of the commander’s soldiers. Ultimately, we call on national leaders and military commanders alike to evaluate our uncomfortable contemporary reality, look back in history, and ask themselves one question: am I truly prepared to make the right decisions when things go wrong
Debilitating Southeastern Community College v. Davis: Achieving The Promise Of Disability Civil Rights
Get PDFDisability civil rights law today continues to be shaped by troubling precedent created in initial decisions of the Supreme Court under the Rehabilitation Act. This article explores the first of these decisions, Southeastern Community College v. Davis, demonstrates Davis’ continuing impact, and analyzes how this impact may be addressed. Davis was a suit brought by a hearing-impaired student who had been refused accommodations and denied admission to the College’s nursing program. Critical litigation decisions on behalf of Davis at the trial court did not contest the College’s failure to provide accommodations that are common today, such as sign interpretation, or the College’s assessment that Davis could not function adequately with such accommodations. The Court thus assumed as given the College\u27s refusal to provide Davis with accommodations and supposed that Davis could not participate safely in the clinical portion of the nursing program. The Court then concluded that her participation would require fundamental alterations in the nursing program that could not be justified as reasonable modifications. This article contends that the Davis decision perpetuated a fundamental confusion between accommodations—adjustments or aids needed for an individual to perform capably—and modifications—changes in existing programs, policies, or structures. Further, confusing accommodations and modifications risks construing individuals as either demanding unjustified modifications in policies or requesting special accommodations that are personal privileges for themselves. Presenting evidence drawn from the analysis of subsequent reported district court and appellate court cases citing or relying on cases citing Davis, the article then shows how these confusions persist nearly thirty years after the enactment of the Americans with Disabilities Act (ADA). The result is that many courts fail to assess actual capabilities of people with disabilities
COVID-19 and Its Impact(s) on Innovation
Get PDFIn previous work, we explored how certain characteristics of adversity are often more conducive to innovation than others. In this Article, prepared as part of the Lee E. Teitelbaum Utah Law Review Symposium—The Law & Ethics of Medical Research, we review some of that work and apply it specifically to the COVID-19 context. We conclude by assessing certain policy implications in light of how the COVID-19 pandemic has both spurred and hindered innovation
Building Better Conservation Easements for America the Beautiful
Get PDFIn January 2021, the Biden Administration endorsed the goal of protecting 30% of the nation’s lands and waters by 2030 to conserve biodiversity and help curb greenhouse gas emissions. The Administration’s initial report on this “America the Beautiful” initiative, issued in May, indicates that federally-deductible conservation easements are likely to play an important role in its implementation. This essay addresses whether and how such easements should be counted in this process.
This matter is of great importance. Donations of conservation easements, by which landowners receive generous federal tax deductions if they restrict the use of their properties in perpetuity in the interest of conservation, cost American taxpayers billions of dollars annually in foregone revenue. In addition, growing reports of abuse and other developments raise serious questions about the effectiveness of deductible easements in achieving durable conservation outcomes.
This essay outlines the fundamental problems plaguing the deductible conservation easement program. It compares practices regarding deductible conservation easements with the protocols employed in various government conservation easement purchase programs. It concludes with specific suggestions for making deductible easements an effective tool for achieving the America the Beautiful goal. Simply accelerating the pace of conservation easement donations is not enough— to achiev[e] durable outcomes that meaningfully improve the lives of Americans,” better conservation easements need to be built
Synching Science and Policy to Address Climate Change in Tribal Communities
Get PDFClimate change is a global environmental problem, and yet, the adverse impacts of climate change are disproportionately felt in tribal communities. There are 574 federally recognized tribes in the United States. While each tribe is unique and independent, many tribes share a common history of colonization and a connection to the land—legally and culturally. The majority of tribal nations were removed from their traditional homelands and placed on reservations by the federal government. In doing so, the federal government established these reservations as a permanent home for the tribe. But that home is now threatened by climate change.
The article discusses the federal government’s legal obligations to protect Native Americans and the lands they occupy as well as the disproportionate impacts of climate change on tribal communities. Based upon an extensive review of literature on the nexus between science and law, we identify recommendations on how to better synchronize science and policy to address climate change. While these recommendations are made through the lens of climate change, we explain how they apply more broadly to the special relationship between tribal nations and the federal government
Minding Accidents
Get PDFTort doctrine states that breach is all about conduct. Unlike in the criminal law, where jurors must engage in an amateur form of mindreading to evaluate mens rea, jurors are told that they can assess civil negligence by looking only at how the defendant behaved. But this is false. Foreseeability is at the heart of negligence—appearing as the primary tests for duty, breach, and proximate cause. And yet, we cannot ask whether a defendant should have foreseen a risk without interrogating what he subjectively knew, remembered, perceived, or realized at the time. In fact, the focus on actions in negligence is misleading, because unreasonable actions are not necessary for negligence liability, while a negligent mental state is. Unfortunately, when we assume that foreseeability can be assessed objectively through conduct, this encourages significant hindsight bias. Jurors are left rudderless—free to replace what *could* have been foreseen with what they think *should* have been in retrospect. Further, while the outputs of mental states can be labeled reasonable or unreasonable, the underlying mental states themselves cannot be. There is no such thing as “objectively reasonable memory” or “objectively reasonable perception.” If there were, it would need to be keyed to a population standard of poor performance, as typical adults are lousy at foresight. If we are committed to negligence being based on breach and not being simply a form of wealth redistribution or compensation, we must pay more attention to whether a particular defendant is capable of foresight. This article argues that foresight has been deemed a “vexing morass” and a “malleable standard” precisely because we fail to treat it as an epistemic construct—similar to intent, knowledge, or recklessness. Given the foregoing, I propose a revision to the elements of negligence to recognize foresight as mental state. While relying heavily on the current prima facie elements, I reshuffle them to focus the jury’s attention on the descriptive inquiries and the judge’s attention on the normative ones. In addition to reducing hindsight bias by emphasizing the defendant’s capacity for foresight, my proposal also has the added benefit of better distinguishing the tests for duty, breach and proximate cause, which presently overlap and blur the roles of judge and jury
Judges and the Deregulation of the Lawyer\u27s Monopoly
Get PDFIn a revolutionary moment for the legal profession, the deregulation of legal services is taking hold in many parts of the country. Utah and Arizona, for instance, are experimenting with new regulations that permit nonlawyer advocates to play an active role in assisting citizens who may not otherwise have access to legal services. In addition, amendments to the Rules of Professional Conduct in both states, as well as those being contemplated in California, now allow nonlawyers to have a partnership stake in law firms, which may dramatically change the way capital for the delivery of legal services is raised as well as how technology and artificial intelligence may be leveraged in adjudicating disputes.
While overt regulatory changes remain enormously controversial, scholars and policymakers have missed a critical part of the landscape: the role state court judges are playing in the de facto deregulation of the legal profession at the civil trial level. Across the nation, the rise of pro se parties has forced judges to rethink their roles. In the new reality of pro se courts, judges in debt collection, eviction, and family matters—which, together, occupy roughly ninety percent of all civil court dockets—must make critical decisions about how to balance the duty of impartiality with the need to achieve a measure of justice and ensure fair adjudication of disputes.
Drawing on original data, including interviews and hundreds of hours of court observations, from a multi-site investigation of the civil justice landscape, this Article shows how some judges—mired in the pro se crisis—are relying on a shadow network of nonlawyer professionals to substitute for the role counsel has traditionally played. Focusing on domestic violence courts as the primary illustration, we find that even in jurisdictions not currently contemplating regulatory reform, judges are relying on organized nonlawyer actors to prepare pleadings, offer substantive and procedural information to litigants, and provide counseling services. These nonlawyer advocates play a significant role in shaping the facts and arguments presented to the judge which we believe, in turn, influences processes and outcomes.
In addition to demonstrating this novel phenomenon, the Article raises three important implications of trial judges’ role in diluting the lawyer’s monopoly. First, the collaboration between judges and nonlawyer advocates is hidden behind the scenes. The quiet partnership assists judges in maintaining the perception of impartiality in the courtroom, which is critical to public trust in the courts, while enabling pro se parties to properly raise claims and seek remedies from the justice system. Second, an opportunity to develop norms around the role of nonlawyers is being squandered. Trial court judges, who are typically excluded from formal regulatory processes, could be leaders in deregulating the lawyer’s monopoly in ways that ensure the integrity of the legal profession, fill a justice gap for pro se litigants, and help to open up pathways for public and formal recognition of a new class of legal professionals. And finally, due process demands that the role of nonlawyers be made public. Our research reveals that only one party to the dispute—the petitioner for a protective order—receives nonlawyer assistance, while the respondent typically receives little to no assistance at all. Domestic violence advocates have been effective in organizing wrap-around services for survivors, including help with preparing court papers, but those accused of domestic violence and subject to protective order proceedings benefit from no such organizing effort. Bringing nonlawyer assistance out of the shadows would make plain that more needs to be done to level the playing field for both parties
Interior Announces Series of Tribal Consultations in Recognition of the Importance of Nation-to-Nation Relationship
No full textThe Department of the Interior announced today that it will host initial consultations with Tribal leaders next month. In addition to honoring and strengthening the nation-to-nation relationship, these steps will help ensure that future White House and Interior efforts at addressing the four converging crises of our time – COVID-19, economic security, racial justice and climate change – are inclusive of Tribal Nations’ priorities and recommendations
\u27Public\u27 Mutual Funds
Get PDFThe concentration of public equity in the hands of just a few mutual-fund complexes has raised concerns about whether these institutions take seriously the stewardship obligations that come with the significant voting power that they have amassed. One leading theory, the agency-cost theory, is that the major fund complexes, all of which specialize in passively managed funds, lack the incentive to adequately police corporate managers on behalf of fund shareholders. Others counter that competition for mutual-fund investors provides sufficient incentive for satisfactory oversight. I argue that neither agency costs nor competitive incentives are the primary driver of stewardship behavior. Rather, the large mutual-fund complexes act out of fear of public retribution. They recognize that failure to look like good stewards could lead to potentially costly regulations. This ‘publicness’ view stems from work that explains important aspects of securities regulation as a response to the public’s desire to impose accountability and transparency mechanisms usually associated with public bodies on powerful private institutions. This lens suggests that large mutual-fund complexes act as stewards to avoid the consequences of publicness, but does not suggest a need for reform
United States v. Michael Andrew Gary: Brief of Forer United States Court of Appeals for the Fourth Circuit
Get PDFThe plain-error stand-ard does not apply in this case, and this Court should affirm the judgment below if it determines either that Rehaif er-ror is structural or that the Government cannot carry its burden to show that the error was harmless