Monthly Archives: February 2019

Should We Use the Market to Address Climate Change?

Alice Kaswan, Energy, Governance, and Market Mechanisms, 72 U. Miami L. Rev. 476 (2018).

The recent report from the Intergovernmental Panel on Climate Change this fall has made clear the urgent need to address climate change. What should be the primary policy tool that we use to address the problem? Economists have vociferously advocated for the use of carbon taxes or cap-and-trade permit systems, on the grounds that they provide the most efficient way to decarbonize global economies. Yet carbon taxes have had little success in the political arena. Many of the existing policies that countries and states have used to address carbon emissions have been regulations or subsidies, not market-based approaches. Is this a fundamental misstep on the part of policymakers?

In her recent article, Energy, Governance, and Market Mechanisms, Alice Kaswan argues that this is not a misstep, and that in fact there are good reasons—political, democratic, even economic—to prefer non-market-based instruments to advance decarbonization. Her article is ambitious in its scope but effective in raising important questions about what approach is best. Continue reading "Should We Use the Market to Address Climate Change?"

Planning for Wildfire Disasters

Stephen R. Miller, Jaap Vos & Eric Lindquist, Informal Governance Structures and Disaster Planning: The Case of Wildfire, __ U. Ark Little Rock L. Rev. __ (forthcoming 2019), available at SSRN.

Are fire-prone communities in the western United States pondering whether they should follow the lead of the Finnish people and begin raking their forests? Doubtful, but how should they prepare for the ongoing threat of increasing wildfires brought on by climate change?

A new article by Stephen R. Miller, Jaap Vos, and Eric Linquist offers a framework for wildfire planning that engages rural communities using informal governance structures currently in place. As state and local governments become more proactive in responding to the local impacts of climate change, it is vital that we develop tools to deal with the ongoing disasters that will continue to impact our communities. Continue reading "Planning for Wildfire Disasters"

Building a Better Mousetrap

Christopher Hodges & Stefaan Voet, Delivering Collective Redress: New Technologies (2018).

A series of mostly hostile Supreme Court and court of appeals decisions, combined with the Court’s unwillingness to rein in boilerplate arbitration clauses in consumer agreements, has led a number of scholars to proclaim that class actions are dead, or at least dying. While appreciating that this framing puts the unquestioned decline of class actions into stark relief, I have been skeptical of the narrative. The recent amendments to Rule 23, for instance, show that policymakers still believe that class actions have salience, and the myriad state-court class actions that fly beneath the jurisdictional radar of the Class Action Fairness Act belie the class action’s demise.

In some retellings of the “class actions are dying” narrative, the ironic suplot is the rise of class-action practice in the rest of the world. Until recent years, only countries with a common-law heritage employed class actions, and even among those countries, only the United States used them with regularity. Over the past ten to fifteen years, however, many countries (I recently counted almost forty, and I was not attempting a comprehensive survey) have established some form of class or collective action. The terms of these processes vary across numerous measures: who can bring suit, for what types of claims, whether members must opt in or may opt out, and so on. But the moral of the subplot is that, just as American courts are moving away from one of the signal features of American procedural exceptionalism, the rest of the world is embracing the device.

The new volume from Hodges and Voet throws some shade on this subplot, and at the same time adumbrates a future in which class actions might indeed wither away. Continue reading "Building a Better Mousetrap"

A New Jurisprudence?

This important and impressive new book by Roger Cotterrell represents a new and original perspective on legal theory, building considerably upon the author’s previous, justly celebrated, work. It calls for a “sociological jurisprudence” (not a mere sociology of law) and for a reorientation of jurisprudential study as a form of social inquiry. The book is not likely to please all jurisprudential scholars, but all should read it and will profit from doing so.

The book is divided into three parts: first, concerning the ‘juristic point of view’; second, transnational legal theory; and third, on “legal values.” I will very briefly explore each in turn. Continue reading "A New Jurisprudence?"

Local Resistance and Criminal Law Reform

Trevor Gardner, Right at Home: Modeling Sub-Federal Resistance as Criminal Justice Reform, 46 Fla. St. U. L. Rev. __ (forthcoming 2018), available at SSRN.

Two important law reform conversations are taking place on largely parallel tracks. One is a conversation about criminal justice reform. The other is a conversation about immigration enforcement. Occasionally, those conversations overlap, but for those who work at the intersection of criminal and immigration law, one source of surprise is how rarely this is the case.

Many of the arguments made in support of criminal justice reform forward apply in the immigration context as well. In both spheres, we see racial disproportionality in enforcement, the inability of criminal punishment to deter conduct driven by unaddressed root causes, and the mounting social costs of punitive systems that needlessly separate families and sunder social networks. In both arenas, private companies profit from and lobby for policies that increase incarceration, surveillance and new-widening rehabilitative programs. And yet the immigration enforcement system—and particularly its racial dimensions—are naturalized and normalized in ordinary political discourse. Conversations around immigration enforcement sound like the conversations about criminal enforcement in the mid-1990s (or in the White House now), with a common-sense consensus, against all evidence, that the nation needs to nurture and expand an expensive, discriminatory and dehumanizing system of enforcement. In his article Right at Home: Modeling Sub-Federal Resistance as Criminal Justice Reform, Trevor Gardner deftly shows how useful it is to integrate these conversations, particularly because the structure of immigration enforcement that the federal government has created over the past ten years essentially ensures that reform efforts aimed at one of these systems cannot succeed completely without reform to the other. This is perhaps not the primary point of Gardner’s article, which is more centrally concerned with developing a theory of appropriate sub-federal resistance to federal criminal enforcement overreach. But the article manages to shed light on a broader range of questions than Gardner takes on. Continue reading "Local Resistance and Criminal Law Reform"

Heroic Work on the Legal Profession’s “Quiet Heroes”

Richard Moorhead, Steven Vaughan, and Cristina Godinho, In-House Lawyers’ Ethics: Institutional Logics, Legal Risk and the Tournament of Influence (2018).

For legal ethics scholars, in-house lawyers are an irresistible and enduring subject of study. As lawyers who derive their living solely from one client and who are embedded in the culture and incentive structures internal to that client, in-house lawyers bring several “classic” legal ethics concerns into sharp focus: What does lawyer independence require? How should lawyers balance client and public interests? When should a lawyer say “no” to a client? There is also, of course, the fact that in-house lawyers have been the subject of multiple front-page scandals in recent decades. Although the query “where were the lawyers?” was first used, as I understand it, in the 1980s in relation to outside counsel in the U.S. savings and loan scandal,1 the question is being increasingly trained on in-house lawyers, who have risen significantly in number and status.

With In-House Lawyers’ Ethics, Moorhead, Vaughan, and Godinho add their own deft, distinct, and deep contribution to the literature on in-house lawyers. At the centre of their book is ambitious new empirical research on the role of in-house lawyers, drawing on interviews with 67 in-house lawyers and compliance personnel and surveys of 400 in-house lawyers. To be sure, thoughtful empirical research on in-house lawyers has been conducted by others before.2 However, Moorhead, Vaughan, and Godinho break fresh ground with their focus on legal risk management and their use of quantitative methods to explore concepts previously examined mostly in qualitative terms. Continue reading "Heroic Work on the Legal Profession’s “Quiet Heroes”"

The Boundary Between Law and Lawlessness

The law plays a sometimes-contradictory role in the stories of female antiabortion activists described in Karissa Haugeberg’s richly researched Women Against Abortion. Haugeberg meticulously studies how gender informs the work of many of the women who have dominated the antiabortion movement in recent decades. However, Women Against Abortion also captures the complex role played by the law in a social movement only ever partly convinced that legal strategies could deliver meaningful social change. Haugeberg’s characters struggle to define a law-free space in which to fight against abortion, and some of the most skeptical find themselves drawn into policy-making. Yet legal solutions deliver far less than Haugeberg’s subjects demand. Her compelling and original study suggests that even if legal strategies inevitably pull in some pro-life activists, frustration at the pace of legal change can have a profound radicalizing effect on others.

The fascinating women who populate the world of Women Against Abortion viewed the role of legal reform with particular skepticism. These activists struggled at times to justify their careers in the pro-life movement, especially since antiabortion groups often insisted that women should prioritize motherhood. To reconcile their work, family commitments, and ideology, the women of Women Against Abortion sought to carve out roles in the movement that reflected their unique experiences as women and as mothers. Rather than prioritizing litigation or legislation, the female activists Haugeberg studies worked in crisis pregnancy centers or participated in clinic blockades. With varying degrees of success, these female activists justified their work by carving out a uniquely female form of pro-life activism, one that resembled motherhood. But as Haugeberg shows, these grassroots activists often found themselves drawn to legal change. Continue reading "The Boundary Between Law and Lawlessness"

What Copyright Might Teach Trade Secrecy

Joseph P. Fishman & Deepa Varadarajan, Similar Secrets, 167 U Penn. L. Rev. __ (forthcoming 2019), available at SSRN.

When an employee has had lawful access to her firm’s trade secrets and later uses them when working for a new employer or when starting her own firm, the former employer may well sue her for trade secret misappropriation. Disputes in such cases routinely focus on identifying the secrets at issue, examining the process by which the alleged misappropriation occurred, and assessing what advantages the employee may have gotten from use of those secrets.

Should courts also consider how much similarity exists between the plaintiff’s and the defendant’s products, processes, or services? And should courts also consider whether the defendant’s new firm and the old firm directly compete or operate in different and arguably unforeseen markets? Similar Secrets says the answer to both questions should be yes. Its thesis is that defendants should not be liable for misappropriation of lawfully acquired trade secrets unless later-developed products or methods incorporate material elements from those secrets and use those elements in the same market in which the plaintiff firm competes, or in an adjacent market into which it is reasonably foreseeable that the plaintiff firm might enter.1 Continue reading "What Copyright Might Teach Trade Secrecy"

Rethinking Federalism: ACA as a Case Study

Abbe R. Gluck & Nicole Huberfeld, What is Federalism in Healthcare For?, 70 Stan. L. Rev. 1689 (2018).

Although federalism rhetoric has played a central role in debates over the Affordable Care Act (ACA), there has been little research on whether the ACA’s implementation reinforced or stymied federalism values, including state autonomy, cooperation, experimentation, and variation. Professors Abbe Gluck and Nicole Huberfeld fill this void in their article What is Federalism in Healthcare For?. Extrapolating from data on the implementation of ACA’s Medicaid expansion and health insurance exchanges, the authors challenge a longstanding assumption among federalism scholarship—that particular structural arrangements best serve federalism goals and values. They instead argue that federalism goals and values are not dependent on any particular architecture of state-federal separation or entanglement but find expression across a range of governance models.

Traditional theories of federalism view state power as derived from separation from the federal government, with federal authority negating state power. Modern federalism scholars characterize any state activity occurring within federal frameworks as subservient. Gluck and Huberfeld, however, find that the ACA’s implementation supports neither view. Instead, they argue that ACA implementation is a story of states exerting power that checked federal authority from within the statute, not from outside it. Furthermore, this dynamic has resulted in extensive policy variation and experimentation within the ACA’s national framework. Continue reading "Rethinking Federalism: ACA as a Case Study"

Federal Courts and the Poor: Lack of Standards and Uniformity in Civil In Forma Pauperis Pleadings

Andrew Hammond, Pleading Poverty in Federal Court, Yale L. J. (forthcoming). Available at SSRN.

In United States v. Kras, the Court rejected the argument that a poor person petitioning for protection from creditors should not have to pay a filing fee in order to access the bankruptcy system. The majority held that an able-bodied person could make the payment because the $50 fee was only $1.92 per week if spread over six months and $1.28 if spread over nine months. Justice Blackburn noted that such a fee at the time was “less than the price of a movie and little more than the cost of a pack or two of cigarettes.” Justice Thurgood Marshall’s dissented, observing:

It may be easy for some people to think that weekly savings of less than $2 are no burden. But no one who has had close contact with poor people can fail to understand how close to the margin of survival many of them are….A pack or two of cigarettes may be, for them, not a routine purchase but a luxury indulged in only rarely. The desperately poor almost never go to see a movie, which the majority seems to believe is an almost weekly activity. They have more important things to do with what little money they have….

For the poor, fees, even supposedly “nominal” fees, matter. In the civil law context, Congress has established a $350 filing fee to access the federal courts and the Judicial Conference tagged an additional $50 administrative fee onto that. (P. 12.) While the non-poor may be able to treat the combined $400 fee as a mere inconvenience, such an amount can serve to bar poor civil litigants from the federal courts.

Andrew Hammond’s article, Pleading Poverty in Federal Court, shows that there is considerable variation in how federal courts consider requests by the poor for fee waivers in civil litigation. Courts not only use different forms to collect ability-to-pay information but they also apply different standards when determining whether fees should be waived. By focusing attention on federal court in forma pauperis motion practices, Hammond’s article sheds light on how the poor can be negatively impacted by routine court practices that might ordinarily be treated as merely administrative. Hammond makes a convincing argument that federal courts should have uniform standards for what information is collected and for the level of need that is associated with a fee waiver. Blending empirical work—a significant contribution of the article is that it catalogues the in forma pauperis forms used by all 94 federal district courts—with an appreciation for the struggles faced by poor litigants, Pleading Poverty in Federal Court is a well-written, targeted intervention that hopefully will improve the ability of the poor to access the federal courts. Continue reading "Federal Courts and the Poor: Lack of Standards and Uniformity in Civil In Forma Pauperis Pleadings"

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