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California, an Island?
Full text linkA monumental change quietly is unfolding in the American West. For decades, the region has lagged the rest of the nation in coordinating electricity operations. Multiple efforts to change this stalled or never got off the ground. Now, everything is different. In the face of climate uncertainty and deepening concern that the region is unprepared for its energy future, stakeholders—government, industry, interest groups—are posturing to create formal electricity markets that will transform the region’s infrastructure, resilience, and economy for the remainder of this century.Two paths are on the table. In one, much if not all the West will join with California to create a massive energy market that promises to reap significant economic, environmental, and reliability benefits. In the other, the West will fragment, and California will be pushed to the side, largely islanded from an energy perspective.This article argues that California must take action to keep the first option open. Specifically, California should adopt legislation that allows one or more of its agencies to approve regionalization of the state’s current electricity market operator, the California ISO. Our interviews with dozens of stakeholders underscore that if this does not happen, a fractured Western electricity grid is virtually inevitable
The New Undue Influence
Full text linkThe doctrine of undue influence has long been the problem child of inheritance law. Undue influence, a hazy combination of fraud and duress, supposedly invalidates bequests that a beneficiary obtained by overriding the volition of a vulnerable testator or settlor. But because relationships are complex, concepts like free will are slippery, and challenges to do native transfers are litigated after the owner dies, courts struggle to apply the rule. Making matters worse, fact finders exploit the principle’s vagueness to protect a decedent’s family at the expense of non-traditional relationships. As a result, scholars have criticized undue influence fordecades, with some even calling for its abolition.
Yet this Article examines a little-noticed trend that is cutting in the opposite direction. Responding to the epidemic of elder abuse, several jurisdictions have started to experiment with a supercharged version ofthe undue influence doctrine. These states have realized that because the cost of pursuing undue influence allegations often dwarfs the contestant’ spotential recovery, the traditional rule does not do enough to deterpernicious misconduct. Thus, as Congress often creates bounties to encourage plaintiffs to enforce statutes, these lawmakers have incentivized“ probate attorneys general” to file undue influence claims. They have done so by recognizing novel presumptions of undue influence, a civilclaim for undue influence as a form of elder abuse, and enhanced remediesfor undue influence committed in bad faith. We call these updates of theancient rule the “new undue influence.”
The Article then offers a ground-level assessment of this phenomenonby analyzing a dataset of nearly 7,000 recent probate and trust cases from California, which has been a pioneer in the new undue influence movement. The Article reaches three main conclusions. First, policymakers have successfully changed the economics of undue influence litigation. Indeed, the Article finds that heirs and beneficiaries who invokethe new undue influence achieve a higher “success rate”—the amount of damages or settlement proceeds divided by the maximum possible recovery—than those who only seek relief under traditional law. Second,contrary to scholars’ assumptions, judges and juries no longer seem to manipulate the undue influence doctrine to protect a decedent’s family. Infact, there appears to be no meaningful link between case results and theparties’ relationship to the testator or settlor. Third, permitting contestants to repackage probate cases as civil claims for elder abuse creates anomalies. Challengers often file probate petitions and civil complaints, opening the door for duplicative litigation, doctrinal inconsistency, and procedural gamesmanship. The Article therefore suggests ways for courts and policymakers to harness the benefits of the new undue influence while minimizing these cost
Soil Governance and Private Property
Full text linkThis is an Article about soil. In consequence, it is also an Article about our relationship to land, and about how that relationship can and must change to confront the many environmental crises facing the United States. Questions about our relationship with the physical environment around us necessarily come to the fore in conversations about soil because of its several identities. It is one of Earth’s most precious resources—the substance responsible for allowing plants to grow, filtering pollutants out of water, providing habitat to countless organisms, sequestering carbon, and providing many other valuable functions. Soil also, however, makes up the top layer of land, or the “portion of the earth’s solid surface distinguishable by boundaries or ownership.”
These kinds of dual identities are not unusual for conversations surrounding natural resources and private property rights. What is notable about soil governance in the United States is the lack of mechanisms to mediate between its identities as resource and property. Soil lacks the more robust statutory framework that resources like air and water have. Instead, the federal law dimension of soil governance offers a top-down, parcel-based approach generally devoid of benchmarks or action-forcing provisions. And the level of government historically vested with land-use planning and management responsibility in the United States—local governments—offers a dimension of soil governance focused much more on property rights and values than on environmental health. This divided governance ignores the interconnected nature of soil. The harms stemming from this fractured attention to soil as a natural resource and all the environmental benefits that it provides have never been clearer. Soil erosion, flooding, decreased agricultural productivity, declining carbon storage, and more can be attributed to declines in the soil resource. Climate change is only exacerbating these issues. Bringing in a commons-oriented perspective as a third dimension of soil governance clarifies the path and lends support to changes in both soil regulation and soil ownership that better account for soil’s interconnected nature.
This Article takes on the question of soil governance as a common resource problem. It is ground-breaking (pun intended) in centering soil— and the biological functions it supports—as a resource in its own right. Using that lens, this Article offers suggestions for both substantive and structural changes to soil governance and private property, centered ultimately on the role of local actors. Overall, this Article is the first of several designed to explore the role of local governments as resource managers and incubators of the kind of environmental and community values that will be needed in the face of the climate crisis. And in this way, it is part of the broader project to articulate the legal dimensions of the huge societal shifts needed to confront the realities of climate change
Old and New Environmental Racism
Full text linkOver the past five decades, the U.S. Environmental Protection Agency (“EPA”) moved from purposeful disregard of environmental racism to a public embrace of environmental justice as an organizational priority. Unfortunately, its efforts to address environmental discrimination remain a work-in-progress. This Article posits that the Agency’s core difficulties have arisen out of its reluctance to accept the continuing salience of race and the substantive implications for its regulatory work. It has blinded the Agency to the evolving manifestations of environmental discrimination and associated harms. The effect has been to impede the aggressive enforcement of antidiscrimination laws, particularly the discriminatory effects regulations of Title VI of the Civil Rights Act.
In this Article I argue that the EPA’s past failure to seriously grapple with the salience of race in its approach to environmental justice has created three serious blind spots in the Agency’s civil rights enforcement program. First, EPA has extended unwarranted trust regarding compliance, even in instances of repeated discrimination complaints. Second, its superficial (albeit earnest) reviews of discriminatory effect allegations with respect to pollution risks have ignored the harms that even small increments of pollution risks can pose to communities of color. And third, its commitment to scientific analysis has allowed science to become a shield against social justice concerns and compounded environmental harms to environmental justice communities.
While these issues are specific to the Title VI context, like the proverbial canary in the coal mine, they call attention to deep-seated policy issues endangering the environmental welfare of vulnerable communities more generally. There are straightforward policy fixes to address the specific shortcomings identified here. The Biden Administration’s efforts in this regard have been substantial and promising. However, long-term solutions to the environmental quality shortfall experienced by vulnerable communities more generally will require structural and cultural changes in the Agency
Res Gestae 2024 Fall Issue
No full textThe Alumni Magazine for the S.J. Quinney College of Law, University of Utahhttps://dc.law.utah.edu/history_docs/1008/thumbnail.jp
On the Importance of Listening to Crime Victims . . . Merciful and Otherwise
Full text linkWhat role should mercy play in the criminal justice system? While several of the other symposium’s articles here in the Texas Law Review argue for expanding mercy’s role, I write to raise a cautionary note. Expanding mercy could potentially conflict with another important feature of contemporary criminal justice: the expanding role of crime victims. Because considerations of mercy focus exclusively on the offender, greater attention to mercy necessarily means less attention to victims. This change in focus would be at odds with a broadly advancing crime victims’ movement in this country and, indeed, in many countries around the world. This cautionary point does not assume that all crime victims want a more punitive criminal justice system. To the contrary, many crime victims may argue for mercy. But allowing victims’ voices to carry weight only when they advance merciful arguments is inconsistent with the underlying rationale for victim involvement: that victims should have agency to advance their own claims in criminal justice processes
Caught in the Middle: Providing Obstetric Care When Pregnant Women Have Complications
Full text linkPhysicians in abortion-restrictive states who care for pregnant women who become ill are facing new challenges as they try to meet their patients’ needs while avoiding criminal prosecution on the one hand or civil litigation if there is a bad outcome, especially when care is affected by the threat of vague statutes, on the other. All these legal actions will occur in the public eye. Unfortunately, the proposed changes to HIPAA do not protect against criminal prosecution when the medical exception for the woman’s health is at issue.
Two changes are needed. The first is amending the state statutes to permit physicians to meet the needs of their pregnant patients within the privacy of the physician-patient relationship. Particularly when caring for pregnant women who are ill, physicians should be presumed to be acting in good faith and in accordance with the standard of care. If and when abortion is warranted to protect the woman’s health, the presence of a fetal heartbeat should not be cause for delay. The second is amending the proposed changes to the HIPAA Privacy Rule to prevent access by law enforcement throughout the United States to information about abortion without the woman’s authorizatio
Positioning Podcasting as Legal Scholarship
Full text linkTechnology has revolutionized legal practice, education, and societygenerally, yet the availability of new forms of digital media has notsignificantly changed the locus of legal scholarship. This Article examineswhether our collective understanding of where scholarship can existshould expand to include podcasting as a formally acknowledged mediumfor legal scholarship. Student-edited law journals remain the primaryvehicle for disseminating law faculty scholarship, as well as an importantmeasure of faculty productivity and success as scholars, even though mostlegal research is conducted online. Despite acknowledged structurallimitations and biases inherent in the academic law review system,traditional print law journals continue to be more highly placed on thehierarchy than their online counterparts. Alternatives like blogging neverachieved popular acceptance as a legitimate site for legal scholarship. Thecontinued resistance of the legal academy to utilizing new forms of mediapresents a real threat to the relevance and broader impact of legalscholarship.The goal of my inquiry is to promote necessary attitudinal andinstitutional change to facilitate the ongoing creation of significant legalscholarship in the form of podcasts. This discussion requires aninterrogation of whether scholarship is defined by its content, or whetherthe medium in which it is delivered also matters, but it is not acondemnation of traditional written scholarship, nor an endorsement forpodcasting as a venue for every scholar’s work. Rather, it presents anuanced case for broadening the definition of what legal scholarship looks(or sounds) like to build new audiences for the work of legal academics
Gender Pay Equity: An Analysis of the United States Women’s National Team Soccer Settlement
Full text linkEven though the United States Women’s National Team (“WNT”) has been far more successful than the United States Men’s National Team (“MNT”), the team members have experienced unequal treatment from the United States Soccer Federation (“USSF”) since its inception. In March 2019, members of the WNT filed suit against USSF, alleging that it had violated the Equal Pay Act (“EPA”) and Title VII of the Civil Rights Act of 1964. The complaint alleged that USSF had a policy of discriminating against the WNT due to their players’ gender by paying them less than the MNT and providing them with lesser employment conditions than those provided to the MNT. A final judgment on both the EPA and Title VII claims was never given, as both eventually settled outside of court. We analyze the substantive legal and economic arguments made by both parties. We show that USSF’s arguments in support of gender pay disparities were misguided and calculate what proper compensation to the two teams should have looked like from the 2015–2019 period of dispute. Although we frame our analysis in the context of the WNT lawsuit, our analysis has far broader implications for pay equity. We illustrate how the outside market force argument in justification of lower pay for women may often be incorrect. We illustrate how the traditional EPA requirement that an individual must work in the same physical location as their comparator to be considered similarly situated is faulty. This investigation is particularly timely and relevant in light of the substantial rise in remote work arising from the COVID-19 pandemic
First Amendment Fetishism
Full text linkThis Article has not argued for the propriety of restricting speech as a good in its own right. Rather, it argues the Supreme Court has gone too far in protecting the right of highly offensive speech. Instead of weighing the value of such speech in relation to its harms on the community, the Court has eagerly embraced a fetishistic attitude toward the right of speech. This Article has suggested, however, that said fetishism is inconsistent with the original understanding of the right of speech. This Article culled the insights provided by the original understanding of the right of speech and then endeavored to fashion them into a jurisprudence that respected the rights of the community. Specifically, this Article has suggested that under the community rights approach to the right of speech that a given law should be upheld if the speaker has reasonable alternatives to express his objectionable speech