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Native Hawaiian Homelands for Native Hawaiians

Troy J.H. Andrade, Belated Justice: The Failures and Promise of the Hawaiian Homes Commission Act, 46 Am. Indian L. Rev. 1 (2022).

Professor Troy Andrade chronicles the distressing hundred-year history of the Hawaiian Homes Commission Act in his article, Belated Justice: The Failures and Promise of the Hawaiian Homes Commission Act, published in the American Indian Law Review. This history is marked by racism, the indulging of non-Native business interests, and political retaliation. Professor Andrade describes it as “the journey of a people forced to demand, decade after decade, what they were entitled to by law.”

Prior to European contact, Native Hawaiian social and political structures were based on chiefdoms with communal land ownership and management. European contact, the Western-backed establishment of the Kingdom of Hawai’i, and American colonization disrupted traditional land systems and displaced Native Hawaiians from their homelands. The United States has acknowledged that the annexation of Hawai’i as a territory included the transfer of lands from Native Hawaiians without consent or compensation.

The Hawaiian Homes Commission Act was enacted in 1921 in an effort to “rehabilitate” now impoverished Native Hawaiians. It placed over 200,000 acres of land into trust for Native Hawaiians with a blood quantum of fifty percent or more. With Hawaii’s statehood in 1959, administrative responsibilities under the Act were transferred from the federal government to the state. The federal government maintains some oversight authority.

Via administrative application, Native Hawaiians with the requisite blood quantum apply for a ninety-nine-year homestead lease within the trust lands. As of 2022, 9,967 leases are in place and 28,971 Native Hawaiians have 46,307 pending lease applications. Only a fraction of the trust lands available are subject to a lease. The administration of the Act has been marked by mismanagement, litigation, and contentious political conflicts. All the while, most of the beneficiaries of the trust lands have received no benefit from the trust corpus.

Although only 16% of the Act’s trust lands are located on Maui, the recent wildfires devastating the island puts the issue of land management across the state in further perspective. Investigations reveal that unmaintained grasslands contributed to the rapid spread of the fire, the deadliest in the US in over one hundred years. Ownership of the originating lands rests primarily with three parties: the state, the Bishop educational trust, and a local developer. The unmaintained grasses were a well-known problem exacerbated by lack of government mitigation.

In addition to the tragedy of reported deaths of 100 people, thousands of people have been displaced. Prior to the fires, thousands of Hawaiians were experiencing housing insecurity with Native Hawaiians being overrepresented vis-à-vis other groups. The state ranks first in the country for housing costs and ranks fifth in its rate of homelessness. and first in housing costs. Unsurprisingly, this is largely driven by out-of-state and investment purchases of a limited housing supply.

The wildfires are putting even more stress on an already unstable housing system. And many are looking at the thousands of charred acres as a prime real estate investment opportunity. The Governor’s office issued an emergency proclamation prohibiting unsolicited offers to purchase of lands in the affected zip codes. This has not stopped offers from coming in.

In his article, Professor Andrade proffers a series of recommendations for the just administration of the Act. These include (1) mandatory education regarding the Act’s requirements and the trust responsibility for all stakeholders including government employees and state and federal lawmakers; (2) adequate funding of the Hawaiian Home Lands program by the state and federal governments; (3) active federal involvement its oversight responsibilities; (4) legislative action to modify the high blood quantum eligibility threshold; and (5) active consultation with Native Hawaiians. Such recommendations would provide a robust foundation for supporting Native Hawaiian access and stewardship of their homelands even outside the scope of the Act.

Even amongst Indigenous law teaching and scholarship, I’m disappointed to say my own included, Native Hawaiian law is often relegated to a single slide or footnote. The laws are different, yes, but the colonization and racism that underlies them are all too familiar. Righting the wrongs of Hawaiian land management requires a commitment to shine “the light of truth upon them.” Thanks to the research of Professor Andrade, I can make this commitment and speak to how the failings of the Hawaiian Homes Commission Act is not merely a Native Hawaiian or Indigenous peoples issue, but rather a human rights one.

Cite as: Aila Hoss, Native Hawaiian Homelands for Native Hawaiians, JOTWELL (March 5, 2024) (reviewing Troy J.H. Andrade, Belated Justice: The Failures and Promise of the Hawaiian Homes Commission Act, 46 Am. Indian L. Rev. 1 (2022)), https://lex.jotwell.com/native-hawaiian-homelands-for-native-hawaiians/.

Public Utility Regulation Through the Lens of Risk Management

Jonas J. Monast, Precautionary Ratemaking, 69 UCLA L. Rev. 520 (2022).

Electricity is the lifeblood of America. Automotive manufacturing in Detroit, server farms in Silicon Valley, the heating and cooling of our homes, and the charging of our smart devices all depend on the availability of affordable and reliable electric service. Electricity, in other words, is as vital to our economy and lifestyle as the air we breathe is to our survival. At the same time, the way we generate, transmit, and use electric power directly impacts, often adversely so, the quality of our air and water, exacerbates global climate change, and causes deadly wildfires, among other societal impacts. Given the complexity of the electric grid and its many interactions with social welfare and the public interest, one might expect Public Utility Commissions (PUCs) to provide comprehensive oversight to address and regulate these interactions. Most do not.

In his excellent new article, Precautionary Ratemaking, professor Jonas Monast makes a compelling case for PUCs to become more proactive regulators of the wide-ranging risks associated with electric utilities’ actions. The article urges utility commissioners to interpret their regulatory mandate beyond the traditional confines of economic regulation and least-cost electric service to include risk analysis and management according to the precautionary principle that underpins much of modern environmental law.

The “economic and political balancing act” (P. 530.) of ratemaking goes back more than a century, to the early days of electrification. To promote the build-out of electric infrastructure, state policymakers granted monopoly utilities exclusive service territories. In exchange for this protection against competition, the utility became subject to rate regulation by the state PUC. Electric utilities remained private enterprises, albeit “clothed with a public interest” (Munn v. Illinois, 94 U.S. 113 (1876)). How this notion of public interest should be interpreted lies at the heart of professor Monast’s argument. According to him, most PUCs set utilities’ rates based on the narrowly construed public interest principles of “affordability, reliability, nondiscriminatory access, and financial viability of the utility.” (P. 534.) But, Monast argues, a more expansive interpretation of “public interest” would be more appropriate.

The article presents the 1944 Supreme Court decision in Federal Power Commission v. Hope Natural Gas, 320 U.S. 591 (1944), as the fork in the road where the Court’s majority led the nation’s PUCs astray when it established the “end result” test by which a utility’s rate should be judged. According to Professor Monast, this test “elevates cost minimization as the primary measure of the public interest, often to the detriment of other social considerations.” (P. 536) Yet dissenting opinions by Justices Frankfurter and Jackson demonstrate an understanding of electric utilities as private enterprises meant to serve society, thereby suggesting a broader interpretation of the public interest.

Having established the doctrinal possibility of a more expansive public-interest analysis by PUCs, Professor Monast wastes no time highlighting the necessity of replacing today’s least-cost myopia with a wide-angle lens of risk assessment and management. High-profile incidents like wildfires and coal-ash spills persuasively illustrate the influence of PUC ratemaking, such as approval of coal-fired power plants or insufficient funding for transmission maintenance, on social welfare and the public interest. Beyond this energy-environment disconnect, the author cautions that the prevailing emphasis on least-cost ratemaking is poorly suited to accommodate, let alone facilitate, the electricity sector’s ongoing transformation. From solar panels to electricity storage, most disruptive technologies command a price premium when they first enter the marketplace. When PUCs prioritize near-term costs, they therefore protect the status quo and create path dependencies that are especially hard to break in an industry where an asset’s useful life tends to be measured in decades, not years.

Against this background, Professor Monast proposes a risk-based governance model to help “counterbalance the PUC’s focus on cost and reinvigorate its public interest role.” (P. 559.) A combined “least cost, least risk” approach, the article convincingly argues, would allow regulators to consider a utility decision’s environmental and other social impacts, while also taking into account how that decision affects the utility’s rates. A longer planning horizon and better longitudinal balancing of costs and benefits, meanwhile, would allow PUCs to justify near-term cost increases with future savings, including through mitigation of environmental and other risks.

In a neat doctrinal twist, the article connects the PUCs’ advocated risk governance to the precautionary principle that underpins many modern environmental statutes and is commonly understood to require the exercise of caution in the face of risk and uncertainty. Precautionary ratemaking might even shift the burden of proof for potential harms from opponents of an action, such as a utility’s ratepayers, to the actor proposing the action, in a rate case proceeding most likely the utility.

PUCs are products of our federalist system, with divergent rules and mandates across jurisdictions and commissions. At the extreme ends of the spectrum, a few states have passed laws requiring their PUCs to consider environmental and other social impacts when setting utility rates, while at least one state has expressly prohibited its PUC from considering environmental externalities in its ratemaking process. But the vast majority of PUCs is not subject to express guidance from its state legislature that would stand in the way of adopting Professor Monast’s least cost, least risk framework. And that’s what makes this article so special. Legal scholars love calling for Congressional action to solve the problems they identify, knowing full well that federal legislative action is unlikely to be forthcoming in the vast majority of cases. In contrast, Precautionary Ratemaking leverages in-depth analysis of legal precedent and empirical evidence to make a compelling case that a viable and legally defensible solution to many of the electricity sector’s pervasive problems may already be within our grasp. The risk of including risk management in utility ratemaking, in other words, is lower than most PUCs think.

Cite as: Felix Mormann, Public Utility Regulation Through the Lens of Risk Management, JOTWELL (February 15, 2024) (reviewing Jonas J. Monast, Precautionary Ratemaking, 69 UCLA L. Rev. 520 (2022)), https://lex.jotwell.com/public-utility-regulation-through-the-lens-of-risk-management/.

Can We Build What We Need to Decarbonize Our Economy?

J.B. Ruhl & James E. Salzman, The Greens’ Dilemma: Building Tomorrow’s Climate Infrastructure Today, 73 Emory L.J. 1 (2023).

The Inflation Reduction Act (IRA), enacted by Congress in 2022, is by far the most significant piece of climate legislation enacted by Congress, despite (or perhaps because of) its name. The IRA provides billions of dollars of tax credits, subsidies, grants, and other support for the development and deployment of the technology we need to decarbonize our economy: electric vehicles, electric vehicle chargers, industrial-scale renewable energy, transmission lines to connect renewable energy sources to consumers, carbon capture technologies, and much, much more. Models indicate that the IRA will result in substantial progress towards decarbonizing the American economy. And the investment in decarbonization technology will not just have direct climate benefits. By creating economic investments that depend on decarbonization progress, the IRA can help build future political support for more progress on decarbonization down the road.

But while money is necessary to build all of this infrastructure that allows for decarbonization, it is not sufficient. The first three parts of Ruhl and Salzman’s The Green’s Dilemma: Building Tomorro’s Climate Infrastructure do a nice job of providing an overview of why. In the United States, constructing large-scale infrastructure–such as transmission lines or large renewable energy facilities, or obtaining the minerals we need for electric vehicle batteries–requires permits as well. Permits from federal, state, and local governments. Permits that can take months or years to obtain, and that can be subject to litigation that adds time and uncertainty. And ironically, many of those permits come from traditional environmental law: permits under the Clean Water Act or the Endangered Species Act, for instance. And for federal permits under other, non-environmental laws, the federal government is required to undertake environmental review pursuant to the National Environmental Policy Act (NEPA) before issuing the permit. And the delays caused by permitting are not just an issue of adding cost (and therefore reducing the climate benefits the US obtains for each dollar spent), though this is important. Perhaps even more important from the perspective of climate policy is that delay in implementation of decarbonization technology and infrastructure means we spend more time emitting more carbon into the atmosphere–when climate policy as it stands is a race against time.

Ruhl and Salzman aren’t the first ones to have noted the challenge, though most of the prior discussion has been outside the pages of law reviews (for examples of prior work, see this article and this article). The fact that Ruhl and Salzman have placed the topic on the agenda of legal scholars is a useful contribution.

But the more important contribution of the piece–and why it warrants praise in Jotwell–is the effort by Ruhl and Salzman to identify possible paths forward. Drawing on controversial streamlining efforts like Senator Manchin’s permit streamlining bill, Ruhl and Salzman identify four different ways in which existing permitting regimes might be adjusted to facilitate the development of decarbonization infrastructure and technology: limiting the jurisdiction or analytic scope of permitting or environmental review; centralizing decisions at higher levels of government (often the federal government) to at least advance coordination among multiple permitting agencies, or at the extreme, preempting some or all regulation for particular projects; establishing enforceable timeframes for permitting and environmental review decisions; and increasing the amount of information available to agencies doing permitting and review to make the processes go faster and better.

As Ruhl and Salzman note, all of these various tools narrow the scope or weaken the strength of existing environmental laws. And thus, as they say, the Greens’ Dilemma. Should environmental groups support changes to bedrock environmental laws–laws they have fought to enact, defend, and implement for about fifty years–in order to advance the development of the infrastructure needed to decarbonize our economies? There are real risks here: All new infrastructure, no matter how climate-friendly, will have some local or regional environmental impacts. Streamlining efforts will not always be perfectly targeted to truly “green” projects, and in any case, there is deep debate within environmental circles about whether to pursue technologies such as carbon capture. Cutting back on public participation and the ability of local communities to fight projects through the administrative and judicial processes is in sharp tension with a push by environmental justice advocates to give those local communities more voice and power to stop projects they do not want in their neighborhoods, and add more equity to where and how we do major infrastructure projects. And finally, there is always the risk of the slippery slope–that streamlining will not stop with decarbonizing projects, but will spread to fossil fuel or other projects that environmental groups have dedicated their existence to fighting.

Thus, as Ruhl and Salzman well note, some tradeoffs will have to be made. And they identify three paradigms or scenarios that exemplify those tradeoffs. At one end, we could do nothing to adjust our current permitting and environmental review system, cross our fingers, and hope for the best that we can get enough infrastructure through the system to meet our climate needs–perhaps by staffing up agencies to process permits faster and better. At the other end, we could follow the path laid out by legislation such as the system Congress set up for the border wall, where Congress repealed all environmental laws and forbade any judicial review of the construction project. In between is what Ruhl and Salzman call “tweaking.”

As Ruhl and Salzman aptly point out, none of these choices involve a simple environment versus development tradeoff. Even doing nothing and keeping the status quo involves environmental costs, as we run an increased risk of not having an adequate and timely push for decarbonization, which in turn increases the climate impacts for ecosystems, species, and people around the world.

At the end of their piece, Ruhl and Salzman propose a “grand bargain”: create a federal commission that identifies key climate infrastructure; those projects would receive significant streamlining in the form of a one-stop single permitting process that would holistically consider all environmental issues; impose enforceable timeframes for permitting and environmental review, with accelerated judicial review; and develop a central database with information about permitting and environmental review from all projects (not just those that are streamlined) to facilitate faster and better permitting.

One can critique the authors’ proposal. There are serious questions. Why should we trust a federal commission to identify good projects? Imagine a future administration that is hostile to climate policy that uses the process to accelerate coal mining projects on a national basis. How will the revised process address the historical inequities of environmental regulation and siting of infrastructure projects? Here, Ruhl and Salzman do not provide details, other than to note that any such consideration should be built into the single-permit process. Are there kinds of projects, or kinds of issues, in which we might be more (or less) concerned about losing separate review and constraining judicial review and public participation? Would we want more nuance? And can the political coalition that shepherded through the IRA manage to unite for such a drastic change?

These are all important questions. But Ruhl and Salzman’s piece is beneficial in pushing us to consider these questions. They aren’t questions that are going to go away. And we will be answering them one way or another, even if it is only through inaction. But inaction, too, has environmental costs.

Cite as: Eric Biber, Can We Build What We Need to Decarbonize Our Economy?, JOTWELL (January 31, 2024) (reviewing J.B. Ruhl & James E. Salzman, The Greens’ Dilemma: Building Tomorrow’s Climate Infrastructure Today, 73 Emory L.J. 1 (2023)), https://lex.jotwell.com/can-we-build-what-we-need-to-decarbonize-our-economy/.

Undermining the Fair Notice Rationale for Textualism

Jesse M. Cross, The Fair Notice Fiction, 75 Ala. L. Rev. __ (2023) available at SSRN (April 21, 2023).

In The Fair Notice Fiction, Professor Jesse Cross provides a much-needed deep dive into one of modern textualism’s core tenets—that giving statutes their ordinary meaning puts people on notice about their legal obligations and therefore promotes the rule of law value of fair notice to the public. The claim to promote fair notice is one that textualism long has asserted, but it has taken on a new importance in the last few years as textualist Justices have come to dominate the modern Court and to loudly proclaim their commitment to identifying a statute’s “original public meaning.”1

The Fair Notice Fiction seeks to debunk this core textualist justification. Professor Cross’ central critique is that the idea of providing fair notice to the public through statutory text has always been a fiction—for at least two reasons. First, in the modern era, the reading of statutory text is a “language game accessible only to legal elites.” (P. 1.) Second, throughout most of history, literacy has been low, texts have been scarce, and language barriers have abounded—even in those early democracies often touted as providing fair notice of statutory meaning to the public.

The first substantive section of Cross’s article explains in detail why meaningful fair notice cannot exist in the modern era. Specifically, Cross argues that two structural features of modern federal law—(1) its length; and (2) its “nontransparent interconnectivity”—make it impossible for ordinary citizens today to read and comprehend statutory text. With respect to length, Cross provides many useful and stark data points, such as the fact that as of 2018 the U.S. Code was 60,000 pages long and that each page of the Code contains three-times as many words as a typical book page.  Regarding nontransparent interconnectivity—Cross uses this somewhat unwieldy phrase to describe an important and underappreciated reality: Federal statutory law is filled with numerous nonexplicit, nonobvious points of interconnection, whereby the meaning of a provision in one statute (e.g., a Medicare statute) depends on a provision in another statute (e.g., a penalty statute that applies broadly throughout the U.S. Code, or the Religious Freedom Restoration Act, which likewise applies across the U.S. Code) but the second statute is nowhere mentioned in the statute at issue. Indeed, The Fair Notice Fiction outlines eight common categories of such non-transparent interconnectivity in federal law. Both of these sections, on length and interconnectivity, are incredibly valuable to anyone interested in how statutes operate on the ground—as both provide detailed information that has so far gone undocumented in the statutory interpretation literature. Ultimately, Cross argues that the complexities in modern federal law make it impossible for anyone other than the legal elite to be able to read and comprehend federal statutes—because only the legal elite possess what Cross calls the “regime literacy” to find and read statutes, let alone interconnected provisions that might bear on the meaning of the statute at issue.

Professor Cross then goes on to examine what fair notice meant in ancient Rome, early England, and the United States. In this section, he provides detailed historical accounts of just how inaccessible statutory law always has been to the general public—even during historical periods now touted as exemplars of public notice. With respect to ancient Rome, for example, Cross debunks the popular myth of public notice via posted tablets by noting that (1) most citizens lived in rural areas, while public postings were made in urban centers; (2) most laws were posted for only 30 days, and it was difficult for even legal actors to access older statutory texts; (3) while thousands of laws were enacted, only a small percentage of these were displayed to the public; (4) widespread illiteracy rendered it impossible for most ordinary citizens to read even those laws that were posted; and (5) language barriers compounded these problems as statutes were posted only in Latin, although Greek was a major competing language and a dozen or more languages were spoken throughout the Roman empire.

Professor Cross concludes by recommending that scholars and jurists re-examine their commitment to text-based notice and focus instead on “active investments in informing the public about the content of laws”—through intermediaries who possess “regime literacy” and can help ordinary people understand what a statute means. (P. 78.) Cross does not go into great depth regarding who should serve as such intermediaries, but he does mention administrative agencies as well as the “Navigator” program that designated individuals and organizations to help ordinary citizens navigate the new insurance landscape created by the Affordable Care Act.

In the end, Professor Cross’s article provides valuable and insightful information about the nuances of both federal statutory law and the history of fair notice in early democracies. The article is a must-read for anyone who wishes to understand what fair notice has meant historically—and what it realistically can look like in the modern era.

  1. See, e.g., Bostock v. Clayton Cty., 140 S.Ct. 1731, 1749 (2020) (“We must determine the ordinary public meaning of Title VII’s command.”).
Cite as: Anita Krishnakumar, Undermining the Fair Notice Rationale for Textualism, JOTWELL (December 20, 2023) (reviewing Jesse M. Cross, The Fair Notice Fiction, 75 Ala. L. Rev. __ (2023) available at SSRN (April 21, 2023)), https://lex.jotwell.com/undermining-the-fair-notice-rationale-for-textualism/.

Noncitizens as “The People”

Pratheepan Gulasekaram, The Second Amendment’s “People” Problem, 76 Vand. L. Rev. 1437 (2023).

Gun violence remains a serious issue in the United States. The Gun Violence Archive reports that between January 1, 2023, and May 1, 2023 there have been 185 mass shootings that injured 744 people and killed 252 people.1 In 2008, the United States Supreme Court held that the Second Amendment protects an individual right to possess firearms, separate and apart from militia service in Heller v. District of Columbia.2 This right is held by “the people.” Yet, the Court has simultaneously held that noncitizens are not part of “the people” guaranteed a right to bear arms. In the Second Amendment context “the people” has been defined as citizens.  Pratheepan Gulasekaram’s forthcoming article in the Vanderbilt Law Review explores the Supreme Court’s expansion of individual gun rights while shrinking the Court’s conception of “the people.” Gulasekaram offers a more capacious interpretation of “the people” and his analysis offers an approach for noncitizen inclusion in other core constitutional rights.

The Second Amendment’s “People” Problem begins with a history of federal regulation of gun possession and noncitizens. Gulasekaram demonstrates how the restrictions implemented stemmed from a desire to limit specific ideologies and subversive activities. Noncitizens in this context were viewed as threats to the constitutional order. Under a pre-Heller Second Amendment that focused on organized armed defense of the constitutional order, noncitizens viewed as a threat could not be viewed as “the people” who would protect the constitutional order. In Part II, Gulasekaram demonstrates how Heller’s emphasis on an individual right to self-defense does not lend itself to the same wholesale exclusion of noncitizens from “the people.” Part III presents Gulasekaram’s argument that once the right to bear arms is rooted in an individual right based on self-protection, the rationale for connecting gun rights to citizenship status disappears.

Part I of The Second Amendment’s “People” Problem does an excellent job demonstrating that historical limitations on noncitizen gun ownership were rooted in “baked-in social hierarchies and stereotypes.” (P. 8.) Gulasekaram explores how the initial regulation of gun possession by disfavored groups “either conflated citizenship with race, or traded on the notion that immigrants were the source of anti-American and subversive ideologies.” (Pp. 7-8.) Federal immigration law in the early 1900s reflected concerns about noncitizens and anti-American ideologies. For example, the 1903 Immigration Act prohibited the entry and naturalization of “anarchists.” In 1918, Congress passed the Alien Anarchists Exclusion Act, which banned the entry of individuals who advocated or taught the overthrow of the American government and allowed for their deportation. The growing connection between noncitizens and dangerousness allowed California to enact a law in 1923 banning “unnaturalized foreign-born person[s]” from possessing firearms.”3

Another important contribution made in Part I is illustrating the role of the powerful gun lobby in encouraging lawmakers to regulate immigrants rather than firearms. Building on the growing concerns about noncitizens’ anti-American ideology, in the 1920s and 1930s the United States Revolver Association (“USRA”) deployed campaigns arguing that significant gun regulation was anti-American and rooted in foreign ideologies. Advocacy campaigns argued that “[r]ather than regulate firearms, Congress should regulate the source of the true danger: immigrants.” (P. 11.) The National Rifle Association continued these themes, arguing that expansive gun rights should exist for “citizen sportsmen, hunters, and private owners,” and that regulation could and should exist for “undesirable aliens” and “Fifth Columnists.” (P. 12.)

In Part II, Gulasekaram argues that the grounding of the Second Amendment in a right to self-defense invites a new examination of “the people” who are guaranteed the right to bear arms. One important part of the analysis Gulasekaram offers in this section is how the Court’s analysis of “the people” is based on the Court’s 1990 decision in United States v. Verdugo-Urquidez. Construing the Fourth Amendment, the Court defined “the people” as those individuals who are “part of the national community or who have otherwise developed sufficient connection to the country to be considered part of that community.”4 Gulasekaram notes how in Heller the Court changed “national community” to “political community” and eliminates the alternative approach based on “sufficient connection to the country.” (P. 19.) These modifications make it possible to interpret “the people” as citizens.

Part III offers a new approach to “the people” that is rooted in the justification for an individual right to bear arms offered in Heller and reinforced in New York State Rifle & Pistol Assn v. Bruen.5 Those cases decouple the right from organized community protection of the state, or from the state, and base it instead on the right to protect individuals from private violence. Based on this approach to the Second Amendment, “the people” are “all those who may need arms for protection of self, loved-ones, or home.”6 Gulasekaram notes that the rights of citizens and noncitizens are often inextricably linked. Many immigrant families are mixed-status families, and depriving noncitizens of the right to self-defense through firearms will also deprive citizens of their right to self-protection. Gulasekaram does not argue that “the people” has no limitations, or that firearm regulation is impossible. Rather he argues that as a right of self-defense “immigration status bears no relationship either to the need for protection nor the ability to wield a firearm safely, in the way status as a minor or mental-illness might.” (P. 49.) Gulasekaram contends that limitations on Second Amendment rights should “closely track the inability of governments to ensure the safe, non-criminal use of the firearm.” (P. 50.)

The Second Amendment’s “People” Problem does an excellent job of demonstrating the internal tensions within the Court’s jurisprudence defining “the people” for Second Amendment purposes and detailing the history of limitations on noncitizen gun ownership. These insights raise significant questions about the accuracy and wisdom of defining noncitizens out of “the people.” The approach Gulasekaram offers provides a model for rethinking noncitizens’ constitutional rights.

  1. Gun Violence Archive, Mass Shootings 2023 (last visited May 1, 2023).
  2. 554 U.S. 570 (2008).
  3. See In re Ramirez, 193 Cal. 633, 636 (1924).
  4. 494 U.S. 259, 265 (1990).
  5. 142 S.Ct. 2111 (2022).
  6. Id.
Cite as: Angela Banks, Noncitizens as “The People”, JOTWELL (December 5, 2023) (reviewing Pratheepan Gulasekaram, The Second Amendment’s “People” Problem, 76 Vand. L. Rev. 1437 (2023)), https://lex.jotwell.com/noncitizens-as-the-people/.

Ultramodern Undue Influence

David Horton & Reid Kress Weisbord, The New Undue Influence, __ Utah L. Rev. __ (forthcoming 2024); Rutgers L. Sch. Rsch. Paper, available at SSRN (February 24, 2023).

In The New Undue Influence, Professors Horton and Weisbord contend that a newfangled sort of undue influence has recently emerged. As a means to challenge testamentary gifts, undue influence has endured its share of critics who claim it often takes the form of prejudiced views of “unnatural” objects of the donor’s bounty—such as same-sex spouses or age-differentiated partners. The popularity of undue influence once seemed to be fading. But the doctrine has now developed new teeth, resulting in a more effective tool for unwinding bequests produced by improper pressures on vulnerable, often elderly, testators.

This reinvigoration of undue influence can be discerned, Horton and Weisbord explain, in three areas. First, undue influence claims have been economically incentivized in some states by means of legislatively authorized fee-shifting as well as double damages (“a punitive makeover”) (P. 33) along with a relaxation of the standing rules governing who can bring a claim. Second, an evidentiary makeover has generated presumptions for claimants when the alleged culprit stood in a confidential relationship with the testator. Third, coupling undue influence with a new cause of action—elder abuse—can enhance the leverage of claimants with more generous statutes of limitation. Tracing these three related developments alone would constitute an important piece of scholarship. But the second half of The New Undue Influence also introduces an empirical analysis of these trends.

It’s in the empirical analyses that the article gets particularly interesting. California was selected as a geographical point of inquiry. California serves as an especially appropriate state for the authors’ assessments since it “is the leader of the undue influence pack” having “adopted the full rainbow of new undue influence laws….” (P. 35.)

The authors sifted nearly 7,000 probate and trust matters from the Alameda and San Francisco Counties to extract and assess some fifty variables. Using this data set, the authors identified 175 cases of undue influence. Of those, only nine (5%) proceeded to a verdict. Of those nine, the undue influence claimant prevailed in only a single case, but the data from settlements is more revealing.

Because California requires judicial approval of most estate settlements, the data set yielded key information concerning undue influence claim settlements. Horton and Weisbord were able to extract a success rate by dividing the settlement sum by the dollar figure the claimant would have recovered had she prevailed at trial. They were further able to compare the success rate for claimants utilizing the new undue influence remedies against those which featured conventional undue influence claims. For claimants relying on the latter, the success rate was 31.5%. But for claimants invoking the new undue influence frameworks, the success rate was 51.9%. Thus, cases with new undue influence allegations are correlated with significantly higher mean success rates. The new undue influence frameworks are working.

The article goes on to statistically disprove the concern of some legal scholars that undue influence protects family bequests at the expense of less traditional donees such as non-relatives and unmarried partners. This “family protection theory” posits that factfinders unfairly penalize “unnatural bequests” to non-family members in undue influence contexts. Statistically speaking, however, that’s simply not the case, the authors explain: claimants “who were members of the testator or settlor’s family did not fare better than those who were not.” (P. 42.)

Indeed, in some cases, alleged wrongdoers qualifying as “family” may have fared worse than unrelated individuals. The authors uncovered four cases in which a spouse of a testator was accused of undue influence and furthermore, the contestants claimed, the union was the product of a sham marriage. “Two of these ‘weddings’ occurred in secret, one took place less than a week before the owner died, and another happened two days before Adult Protective Services found that the settlor lacked mental capacity.” (Pp. 42-43.) Deathbed marriage ceremonies, it seems, can serve to arouse suspicions rather than allay them.

Additional nuggets of interest are peppered throughout this engaging, impressively researched (and copiously footnoted) article. Probate files are particularly well-suited to empirical study since there are so many of them. The future of elder law and estates scholarship will undoubtedly see more and more statistical inquiries. Horton and Weisbord show us how it’s done.

Cite as: Tom Simmons, Ultramodern Undue Influence, JOTWELL (November 22, 2023) (reviewing David Horton & Reid Kress Weisbord, The New Undue Influence, __ Utah L. Rev. __ (forthcoming 2024); Rutgers L. Sch. Rsch. Paper, available at SSRN (February 24, 2023)), https://lex.jotwell.com/ultramodern-undue-influence/.

Making Judicial Review of Reliance More Reliable

Haiyun Damon-Feng, Administrative Reliance, 73 Duke L.J. __ (forthcoming 2024), available at SSRN.

Hundreds of thousands of individuals relied on the Deferred Action for Childhood Arrivals (DACA) policy in making major life decisions, such as where to live and whether to invest in higher education.  The policy promised some without legal immigration status a chance to remain in the United States with work authorization.  If certain criteria were met, the Department of Homeland Security would consider whether to grant a type of prosecutorial discretion called deferred action.  DACA was created through a guidance memorandum.  Then Secretary of Homeland Security Janet Napolitano issued a 2012 memo to her department explaining the details of the policy, and then the agency implemented it.  In 2017, the Trump administration attempted to end DACA by issuing another memo.  In 2020, the Supreme Court concluded that President Trump’s attempt to end DACA was unlawful.  The Court reached that conclusion in part because the Trump administration failed to adequately consider the reliance interests of DACA beneficiaries in determining to end the policy.

In her article Administrative Reliance, Professor Damon-Feng dives into the reliance phenomenon in administrative law.  One administration develops a policy, many rely on it, and then the next administration changes course.  Should reliance interests matter when courts review the change of course?  If so, how much, and why?  Professor Damon-Feng concludes, based on her examination of the implicated values, that the Supreme Court should adopt a more purposeful and disciplined approach to considering reliance interests.

Administrative law gives regulated entities tools to challenge agency procedures.  “APA,” after all, is short for “Administrative Procedure Act”.  The APA is less generous, however, with opportunities for regulated parties to challenge policy choices.  Courts are not well positioned to review whether a policy shift is a good idea.  Instead, courts can review the procedures an agency used to decide to shift the policy.  For example, the APA requires agency decisions not be arbitrary and capricious.  In claiming arbitrary and capricious agency behavior, parties argue that an agency failed to think about something important or that the agency thought about something in an inappropriate way.  If a court agrees, the court can send the policy change back to the agency to think about the issue differently.  For example, if an agency is faced with two choices, Policy A and Policy B, and the agency calls a fortune teller to help the agency decide whether to pick Policy A or Policy B, that would be arbitrary and capricious agency action.  If an agency fails to adequately consider reliance interests as a part of the deliberation to change policy, that also is arbitrary and capricious.

Professor Damon-Feng is concerned that the claim of inadequate consideration of reliance interests is susceptible to “weaponization and abuse” because the Supreme Court has not developed a robust analysis for courts to apply when parties make this argument.  Professor Damon-Feng follows the Supreme Court’s reliance interest thread from State Farm onwards.  She concludes that the Supreme Court activates the reliance interests/arbitrary and capricious rationale on a seemingly ad hoc basis, with no classification of which reliance interests should matter and when.  According to Professor Damon-Feng, not all reliance interests are the same and not all should be the basis of proclaiming agency action to be arbitrary and capricious.

In the DACA case, the Supreme Court concluded that DACA did create legally recognizable reliance interests.  The Court concluded that the Trump administration did not adequately consider these reliance interests when deciding to end the policy.  As far as what would constitute adequate consideration, the Court appears to demand little.  As Professor Damon-Feng explains, the “potentially sharp teeth of reliance interests may be substantially filed down” if the Court provides easily fulfillable direction to agencies on how to adequately consider reliance interests.

Because President Trump lost the 2020 election, we do not know if a second Trump administration would have succeeded in terminating DACA after complying with the Supreme Court’s direction to consider reliance interests.  We have seen, however, how lower courts have used the Supreme Court’s treatment of reliance interests in the DACA case in other contexts.  For example, states claimed their reliance interests were not adequately considered in challenging President Biden’s decision to end the Trump administration’s Remain in Mexico program.  The Remain in Mexico program required some individuals to wait for their immigration hearings in Mexico.  These states were never the subject of the policy (they did not have to wait in Mexico), but the states argued that their reliance interests should matter because the states would be affected by the change in regulation of others.

Professor Damon-Feng thinks that without a more principled framework to guide how courts review agency action that implicate reliance interests there is a risk that claims of administrative reliance will unduly stifle policy change.  She identifies agency legitimacy and accountability, stability, and respecting settled expectations as the main values behind administrative reliance.  If agencies acknowledge reliance interests but explain why a shift in policy is necessary, that makes the agency more democratically accountable.  Consideration of reliance interests also may soften sudden swings in policy and make sure that the agency is considering the effects of upsetting settled expectations.

The central argument of Administrative Reliance is that the Court needs to develop an analysis that lower courts can use to determine if a particular reliance interest should support a finding of arbitrary and capricious agency action.  Professor Damon-Feng argues that not all reliance interests are equal.   She envisions a framework where claims of administrative reliance are “screened in a way that privileges claims originating in concrete expectations of rights, statuses, or expectations that had been promised by the policy at issue.”  (P. 53.) Professor Damon-Feng argues that this filter keeps administrative reliance focused on the expectations of the regulated party, and not consequential effects or where reliance interests are more “attenuated and diffuse.”  This approach would allow courts to consider administrative reliance in cases where the government now wants to shift away from a commitment it made to a regulated party (as in the DACA case) but would make it more difficult for interests merely tangential (as in the Remain in Mexico case), where third-parties argue that a change in treatment of regulated parties would affect them.

How hard courts should look at an agency rationale for a policy change, or even require any rationale at all, is a long-standing issue in administrative law.  This type of arbitrary and capricious review took on even greater salience during the Trump administration as litigants relied on the argument to challenge extremely controversial shifts in policy.   Claims of arbitrary and capricious action are now used against the Biden administration’s attempts to change course.  Professor Damon-Feng’s suggestion that the Supreme Court provide better direction is well-taken.  Arbitrary and capricious review relies on a tricky balance.  Courts understandably demand that agencies explain themselves, but what courts require must not be so intricate and demanding that agency policy change becomes too difficult.  Additionally, regulated parties should be able to better predict which agency action will be held to be arbitrary and capricious.  Arbitrary and capricious review should not be a political stopgap that allows courts to prevent disfavored policy changes.

Professor Damon-Feng’s proposal that claims of reliance interests in arbitrary and capricious review need to be better screened is intriguing.  In this article, she proposes a filter that would limit claims of administrative reliance to those who have directly been regulated.  She promises to develop further her theories of administrative reliance in future articles, and it would be interesting to hear her thoughts on the intersection between her proposed filter and standing doctrine.  Her research implicates big questions about the role of courts in reviewing agency policy choices, and I am sure administrative law will benefit from her contributions. These questions take on even greater importance given the challenges facing legislative reform and the resulting pressure on the executive branch to take action.

Cite as: Jill Family, Making Judicial Review of Reliance More Reliable, JOTWELL (September 25, 2023) (reviewing Haiyun Damon-Feng, Administrative Reliance, 73 Duke L.J. __ (forthcoming 2024), available at SSRN), https://lex.jotwell.com/making-judicial-review-of-reliance-more-reliable/.

Access to Justice Requires Usability, Not Just Open Access

Any law librarian who works with the public or teaches no- or low-cost legal research, or any attorney or law student using free resources to conduct research understands the wide gap in usability between fee-paid databases and most free, open-access legal resources. Focusing on statutory code research, Professor Darvil’s article, Increasing Access to Justice by Improving Usability of Statutory Code Websites, examines the need not just for access to statutory codes, but providing the information in a way that allows the user to find the law they need. Through the lens of website usability standards, Professor Darvil assesses state code websites and provides recommendations for how those websites can improve usability. Many states have created “Access to Justice” initiatives and commissions aiming to improve citizen access and experience with the legal system. Professor Darvil’s recommendations provide excellent guidance for those interested in improving the research experience and access to the law for everyone, including those without access to fee-based databases such as Lexis or Westlaw.

Inevitably, my legal research students are, at some point in the semester, treated to my soapbox speech about how equitable access to the legal system rests on the ability of any citizen, regardless of means, to access the law they are obligated to live under. If states care about access to justice issues, logically they must care about how they provide access to the law. Professor Darvil’s article provides an excellent discussion of the access to justice issues endemic in a legal system in which, particularly on the civil side, many litigants are self-represented and how those litigants are impacted, frequently negatively, by their inability to find the law.

The unique value of Professor Darvil’s article, however, is her assessment of the usability of state statutory websites and recommendations for improvement. Her evaluation of the state websites uses a standards-based approach. Nearly half the states and the District of Columbia have adopted the Uniform Electronic Legal Materials Act (UELMA), which seems a reasonable place to look for applicable standards. Unfortunately, as Professor Darvil notes, UELMA doesn’t address the usability of electronic legal materials. Lacking usability standards in UELMA, Professor Darvil turns instead to standards developed in the disciplines of human computer interaction (HCI) and user experience (UX). Experts in these fields explore how easily people can navigate a particular website interface and find what they are looking for. There are several sets of standards for assessing website usability and Professor Darvil uses the following standards from the U.S. Department of Health and Human Services (HHS).

Search Guidelines:

  • Ensuring usable search results
  • Designing search engines to search entire site or clearly communicate what part of the site is searched
  • Making upper and lowercase search terms equivalent
  • Designing search around user’s terms

Navigation Guidelines:

  • Providing navigational options
  • Differentiating and grouping navigation elements
  • Offering a clickable list of contents
  • Providing feedback on user’s location

(P. 133.)

Professor Darvil evaluates the statutory code websites of all 50 states and the District of Columbia hrough an exploration of the features available and some relatively simple searches for state laws and comparing the results to a 50-state survey. She then explains the results using multiple illustrative screenshots from a variety of state websites as well as appendices outlining the results for each guideline above in every jurisdiction.

Finally, Professor Darvil ends with recommendations for states seeking to improve their statutory code websites. These recommendations range from fairly basic to more complex. Suggestions for improving navigation include recommendations such as providing a table of contents, clickable search trails, and navigational buttons. Suggestions for improving searching are more complex and include items such as using a controlled vocabulary, providing context surrounding the search terms by indicating where the researcher is in the code, relevancy rankings, and instructions on how to best search. Professor Darvil points out that many of these recommendations are familiar to librarians and suggests that states should use librarians to help implement many of these suggestions.

This article provides a logical and thorough assessment of state statutory code websites, explains why usability matters for access to justice, and suggests ways that governments can improve usability. As she concludes, “Governments that are based on the rule of law have special duties to their citizens: transparency, accountability, and reasonable access to their laws. […] When state governments do so, they promote access to justice and the rule of law.” (P. 153.)

Cite as: Kristina Niedringhaus, Access to Justice Requires Usability, Not Just Open Access, JOTWELL (August 11, 2023) (reviewing Kathleen Darvil, Increasing Access to Justice by Improving Usability of Statutory Code Websites, 115 Law Lib. J. 123 (2023)), https://lex.jotwell.com/access-to-justice-requires-usability-not-just-open-access/.

Expanding the Constitutional Lens

Gregory Ablavsky & W. Tanner Allread, We the (Native) People?: How Indigenous Peoples Debated the Constitution, 123 Colum. L. Rev. 243 (2023).

Debates over Founding Era constitutional understandings proliferate in scholarship and litigation. The understandings examined, however, are almost exclusively those of the white men who either drafted the constitution or could vote on its ratification. In We the (Native) People?, Professor Gregory Ablavsky and doctoral candidate Tanner Allread broaden this focus, uncovering what Indigenous people said and thought about the Constitution’s meaning. Like Mary Bilder’s recent article on the influence of Cherokee, Chickasaw, and Choctaw delegations’ visits to the constitutional convention in 1787,1 and earlier works by Robert Clinton, Maggie Blackhawk, and Ablavsky himself,2 the article confirms the influence of tribal actions on the Constitution and its interpretation. But in foregrounding Indigenous people’s perspectives, Ablavsky and Allread open a new window on those actions as well as on constitutional history and law.

The first contribution of the article is to identify pre-constitutional tribal-settler diplomacy as an important backdrop against which the Constitution was drafted and understood. As scholars like Robert Williams and Colin Calloway have shown, established rules, shaped by both Indigenous and English traditions, governed this diplomacy. These practices included both accepted rituals and norms of negotiation, reciprocity, and ongoing relationships that the English violated at their peril. Ablavsky and Allread dub this body of rules the “diplomatic constitution,” invoking the times’ definition of constitution as the practices, institutions, and discourses that disciplined governmental power. Influential founders, they show, like George Washington, Ben Franklin, James Madison, James Monroe, and Thomas Jefferson, would all have been familiar with this diplomatic constitution from their own experiences at negotiations with tribal nations.

Although the early documents of the fledgling United States seemed to continue these rules of diplomacy, white settlers, states, and loosely organized militias defied its precepts, refusing negotiation and clear channels of communication. In response, tribal leaders repeatedly invoked the diplomatic constitution and chided the federal government on its inability to control its subjects. As Chickasaw leaders informed Congress, “We are told that you are the head Chief of a grand Council which is above these Thirteen Councils…[I]f so, why have we not had talks from you? We are head Men and Chiefs and Warriors also, and I have always been accustomed to speak with great Chiefs and Warriors.” (P. 265.) At the time, federal officials were torn on whether to maintain the diplomatic constitution or to treat tribal nations as conquered peoples to whom no further concessions need be made. Tribal influence pushed these officials to restore existing norms.

Ablavsky and Allread also show that Native people were an important external audience for the U.S. Constitution. Federal actors had drafted the Constitution with tribal demands in mind, and “aggressively sold and promoted the new document to Native audiences as a restoration of the core principles of the diplomatic constitution.” (P. 269.) As officials informed the Muscogee, “Our Unions, which was a child, is grown up to manhood[]….One great council is established, with full powers to promote the public good,” and ensure “that justice shall be done to the nations of Indians….” Native leaders were congratulatory but pointed in their official responses. The Haudenosaunee observed that it had always been the custom of their confederacy to “have one Great Council fire kept Burning…and there to do all the public business which respected the five Nations in General,” while the Cherokee Nation complimented Congress on having “become strong,” but expressed its hope that “whatever is done hereafter by the great council will no more be destroyed and made small by any state.” (P. 273.)

Discussions between Indigenous observers were less hopeful. The Mohican sachem Hendrick Aupaumut accepted a federal commission to convince a confederacy of tribal nations that the new government would honor its promises and restrain its citizens. His audience, already suffering under unrestrained settler incursions, doubted his claims. Some tribal nations responded to violations of the diplomatic constitution by warring against those expropriating their land.  Others invoked it to secure favorable treaties for their people. The United States violated the faith of the latter, demanding new land concessions and removal instead of preventing illegal settlement.

Ablavsky and Allread present the landmark Cherokee cases as a continuation of Indigenous assertions that the U.S. Constitution incorporated the diplomatic constitution. Even before appealing to the U.S. Supreme Court in Cherokee Nation v. Georgia, 30 U.S. 1 (1831), and Worcester v. Georgia, 31 U.S. 515 (1832), Cherokee and Choctaw delegations made constitutional arguments in response to southern states’ claimed authority over their lands. Their testimonials asserted that the Constitution did not control tribal sovereignty, but their “treaties of relationship are based on the principles of the federal constitution.” The Commerce Clause prohibited states from interfering with those relationships, and those treaties were the “supreme law of the land.” When Congress and the Executive proved unresponsive, the Cherokee Nation brought its arguments to the Supreme Court.

And in Worcester v. Georgia, they succeeded. Chief Justice Marshall’s opinion affirmed tribal sovereignty, federal exclusive authority, and that state actions in violation of these principles were “repugnant to the Constitution, laws, and treaties of the United States.” President Jackson, of course, failed to enforce the decision, and the United States later forcibly removed the Cherokee people under a false treaty. And although Worcester v. Georgia powerfully sustained legal recognition of tribal sovereignty, over time federal law forcibly absorbed tribal governments within the constitutional order.

So how should this history influence our understanding of the Constitution today? Ablavsky and Allread offer their history as a general call for founding histories to look beyond the exclusive (white, male, propertied) group who could formally assent to its ratification. Native peoples, they show, were both an important audience for the Constitution and had an meaningful influence on its implementation. Further, they argue, the diplomatic constitution should be understood, like the works of William Blackstone, as part of the common law backdrop that informs constitutional meaning.

What light might the understandings of enslaved people, free people of color, or white women shed on constitutional meaning? Recovering understanding or influence would not mitigate the original exclusion or manufacture metaphorical consent. As Ablavsky and Allread show, Native nations refused consent and yet were incorporated anyway. But it would broaden the search for understanding and influence beyond the few whose claimed the power to consent on behalf of the many, and allow formally excluded people to claim their role as co-creators of constitutional law.  And the results may be as illuminating as those We the (Native) People provide.


Editor’s note: For another review of this article, also published today, see Allison Brownell Tirres, Constitutional History in the Middle Ground and Beyond: Indigenous Perspectives, JOTWELL (July 12, 2023).

  1. Mary Sarah Bilder, Without Doors: Native Nations and the Convention, 89 Fordham L. Rev. 1707 (2021).
  2. Robert N. Clinton, The Dormant Indian Commerce Clause, 27 Conn. L. Rev. 1055 (1994); Gregory Ablavsky, The Savage Constitution, 63 Duke L.J. 999, 1009-38 (2014).
Cite as: Bethany Berger, Expanding the Constitutional Lens, JOTWELL (July 13, 2023) (reviewing Gregory Ablavsky & W. Tanner Allread, We the (Native) People?: How Indigenous Peoples Debated the Constitution, 123 Colum. L. Rev. 243 (2023)), https://lex.jotwell.com/expanding-the-constitutional-lens/.

Building Community in Poor Towns and Cities

Michelle Wilde Anderson’s The Fight to Save the Town: Reimagining Discarded America is worth reading for its optimistic approach to the challenges facing poor communities. Governments in such communities are often beset by significant legal and structural limitations that make it hard for them to provide even basic services to poor residents. With government programs related to poverty largely forced into retreat since the War on Poverty, the Affordable Care Act being the notable exception, it is easy for those who care about how the government responds to poverty to fall into despair. Poverty law offers little solace. The promise of Goldberg v. Kelly having long since faded, poverty law scholars are left searching for reasons for hope. The Fight to Save the Town provides glimmers of hope despite the legal and structural limitations facing struggling communities.

Anderson explains in the introduction that she aligns herself with the “‘call in,’ rather than ‘call out,’ tradition of social change,” (P. 31) which captures the book’s tone and approach. Portraits of community leaders and community organizations fighting back against urban decay and government decline form the heart of the book. But for all the heroism depicted in The Fight to Save the Town, readers are left—as they arguably should be—simultaneously inspired by the many examples of communities coming together and horrified by the fact that anti-government and anti-poor sentiment has been so effective in gutting these same communities for so long.

While some readers of the book will likely accuse it of being too optimistic—being so celebratory of minor wins that can only do so much in the face of major structural barriers—Anderson begins each community profile by explaining the roots of today’s citywide poverty in the four towns profiled. Anderson is not the first author working on local communities to structure a book in this way. William Julius Wilson and Richard P. Taub’s excellent work, There Goes the Neighborhood: Racial, Ethnic, and Class Tensions in Four Chicago Neighborhoods and Their Meaning for America (2006), for example, has a similar structure. What makes Anderson’s book stand out is her ability to show the commonalities across four cities and areas that initially seem so distinct. On the surface, Stockton, California; Josephine County, Oregon; Lawrence, Massachusetts; and Detroit, Michigan are quite different in terms of scale, economics, racial composition, and politics. Such differences, Anderson shows, matter–and shape everything from what the community values to what sort of work is needed to make improvements. But The Fight to Save the Town is as much about the people working to help others find jobs, ensure the public library stays open, or make an area safe again, as it is about the distinct places. Anderson’s book is both a  portrait of ground-up activism and a portrait of communities hoping for a better future.

The themes tackled by The Fight to Save the Town are not easy ones and, Anderson is careful to note, are not the issues that impact all communities. Because each town has its own history and own struggles, the book is not a how-to manual for community activists. But Stockton, Josephine County, Lawrence, and Detroit are going through things that many struggling places are going through. Hit hard by deindustrialization and tax rebellions that leave local governments unable to collect enough revenue to fund basic services, residents see their livelihoods collapse—even as they find themselves unable to rely upon government services that, in earlier periods, were taken for granted. Mistrust of government is a common feeling in such places, whether the politics in the area lean blue or red. Community activists are forced to do the best that they can to improve things, whether that means building up networks outside of government or finding ways to convince taxpayers to agree to be taxed in order for the government to rebuild.

Before tackling the most challenging part of the book, it is worth pausing to give Anderson credit for being a very talented writer. The Fight to Save the Town flows beautifully. The town histories and the portraits of community activists and politicians are written in such a way that they draw the reader in, making one care about these places and people. Like most breakout books on poverty, Anderson’s choice to write a people-centered book allows her to connect with readers in a way that cannot be achieved through wonky policy-centered approaches.

It is also worth acknowledging that, for many readers, the hardest part of The Fight to Save the Town to deal with is likely Anderson’s relentless optimism. I suspect that all law faculties have colleagues whose modus operandi is to be positive. You see them in the hall, where every day is the best day ever, and in faculty meetings, where they think every idea is a great one, even if the issue really demands they take a stance. I cannot say that I hate such people, that is way too strong a claim. But, admittedly,  they do annoy me. Let’s be realistic—some days suck and some choices are bad ones. Anderson can come off as too positive. Fortunately, she knows it and spends time in the introduction defending her choice to “celebrate and support a new generation of people-centered leadership.” (P. 32.) As Anderson observes, “eulogistic writing records memories of a place, as though it is already lost,” (P. 25) even though places that Anderson calls “discarded America” still are home to large numbers of poor people. And those poor people have agency, attachment to place, and hopes and dreams that should not be written off.

My view is that there is value in both the “call in” and the “call out” traditions of social change. There must be works such as Matthew Desmond’s Evicted: Poverty and Profit in the American City (2016) and Barbara Ehrenreich’s Nickel and Dimed: On (Not) Getting By in America (2001) that call out the gross inequalities that the country tolerates and the hardships that the poor endure. Such works speak to some readers and can force the upper and middle classes to recognize the humanity (and the suffering) of the poor. But, there is also a need for more optimistic takes. Works like this show readers that people living in poor places should be not only listened to, but that through their leadership and example are already providing a path forward for these struggling communities.

Cite as: Ezra Rosser, Building Community in Poor Towns and Cities, JOTWELL (June 29, 2023) (reviewing Michelle Wilde Anderson, The Fight to Save the Town: Reimagining Discarded America (2022)), https://lex.jotwell.com/building-community-in-poor-towns-and-cities/.