Jul 1, 2024 Ezra RosserNative Peoples LawPoverty Law
Vanessa Ann Racehorse,
Tribal Health Self-Determination: The Role of Tribal Health Systems in Actualizing the Highest Attainable Standard of Health for American Indians and Alaska Natives, __
Colum. Hum. Rts. L. Rev. __ (forthcoming), available at
SSRN (April 10, 2024).
The life expectancy of Native Americans is almost eleven years less than the average of all races in the United States. (P. 20.) And across countless other metrics—from drug addiction to diabetes—Natives suffer disproportionately high rates of illness and death compared to other Americans. (P. 20.) Despite this, funding for Indian Health Services (IHS) remains below the level of support given to non-Indians and well short of what is needed to provide adequate health care to tribal communities. (P. 19.) Professor Vanessa Ann Racehorse’s article, Tribal Health Self-Determination: The Role of Tribal Health Systems in Actualizing the Highest Attainable Standard of Health for American Indians and Alaska Natives, does a fabulous job describing the linked problems of health disparities and insufficient funding for Native communities, while also offering suggestions on how health outcomes might be improved. But the article’s contributions extend beyond laying a foundation for better understanding tribal health care; Professor Racehorse also shows that when Indian nations assert their powers of self-determination in the health care space, outcomes for tribal members can improve.
Tribal Health Self-Determination is a reminder of the relatively high levels of reservation poverty and the ways that poverty, subordination, and health intersect. As Professor Racehorse highlights, Indian health is made worse by past injustices such as forced sterilization that contribute to historical trauma. (Pp. 11-12.) But health disparities are not inevitable. Under international law, tribal members have a right to the highest attainable standard of health. (Pp. 34-39.) Moreover, tribal takeover of IHS facilities can lead to better health outcomes through culturally competent care and local accountability. (Pp. 40-58.) Under-funding remains a challenge, but Professor Racehorse’s article provides a strong argument for supporting tribal assertions of authority over facilities that were previously run by the federal government.
Perhaps the strongest section of the article is Part II, which focuses on Indian Health Care and Health Disparities. Having laid out the legislative history behind Indian health care in Part I, Professor Racehorse spends the middle part of her article highlighting the health disparities facing Indians and analyzing the possibilities of attacking these disparities through litigation. Not surprisingly for those who have been following the ways the U.S. Supreme Court has narrowed the enforceability of the federal government’s trust responsibilities towards tribes, Professor Racehorse’s careful analysis shows the limits of litigation. But by tying her analysis to a particular challenge—health care disparities—Professor Racehorse was able to move beyond the standard theoretical complaints that are bound to be fully explored in the Indian law literature over the next decade.
The U.S. Supreme Court has so successfully chipped away at idea of a general trust responsibility that it is reasonable to ask if such a trust relationship even exists anymore. In place of general trust obligations, the Court is insisting that tribes cannot enforcement the government’s trust responsibilities unless the U.S. government has opened itself up to judicial accountability through particular legislation. See United States v. Jicarilla Apache Nation, 564 U.S. 162 (2011); Arizona v. Navajo Nation, 599 U.S. __ (2023). Doctrinal critiques of this sort of narrowing risk obscuring the point—the Supreme Court is making it increasingly difficult for Indian nations to insist that the U.S. live up to what had been long-standing and well-established policy objectives. What is great about Professor Racehorse’s coverage of such litigation is that by linking the shifting doctrinal ground to the troubling level of disparities in health outcomes and health funding, readers can see how these arcane doctrinal changes negatively impact tribal members struggling with poverty, inadequate services, and health challenges on Indian reservations.
Finally, Professor Racehorse’s article stands out because of the way it helps open the field for other scholars interested in Indian Health Services. Such work crosses a number of scholarly lines—poverty law, health law, and Indian law—but likely will be of greatest significance in Indian country. There is a tendency to treat Native lived experience as a case study for a larger phenomenon or to focus in jurisdictional issues while neglecting those systems that most impact tribal members in their daily lives. Professor Racehorse’s Tribal Health Self-Determination should interest all readers, from those who will find the health disparity statistics shocking to those looking for ways to improve tribal health services and outcomes.
Cite as: Ezra Rosser,
Improving Health Services for Tribal Communities, JOTWELL
(July 1, 2024) (reviewing Vanessa Ann Racehorse,
Tribal Health Self-Determination: The Role of Tribal Health Systems in Actualizing the Highest Attainable Standard of Health for American Indians and Alaska Natives, __
Colum. Hum. Rts. L. Rev. __ (forthcoming), available at SSRN (April 10, 2024)),
https://lex.jotwell.com/improving-health-services-for-tribal-communities/.
Jun 3, 2024 Marco JimenezRemedies
If there is one article that nearly every legal scholar is familiar with, that article would have to be Guido Calabresi & A. Douglas Melamed’s Property Rules, Liability Rules, and Inalienability: One View of the Cathedral. It was in that Article that the famous distinction between property rules (i.e., entitlements that can only be purchased in voluntary transactions) and liability rules (i.e., entitlements that can be infringed by simply paying the value of the entitlement as determined by a court) was first put forward. This idea has had a tremendous impact both within and outside the legal academy, its framework having been incorporated into numerous judicial opinions. When one thinks about this Article, one tends to think about law and economics, and how courts that have internalized this approach frequently employ such thinking to choose the most efficient rule when deciding how to protect entitlements in important areas of private law like contract, tort, and property law. What one ordinarily does not think about, however, is racial inequality, which is the focus of a new and interesting Article recently published by Yotam Kaplan in the Maryland Law Review.
The main point of Kaplan’s Article is as simple as it is powerful: because judges are tasked with the burden of choosing between protecting a party’s entitlement with a property rule or a liability rule, and because bias inevitably creeps in whenever humans make decisions, a judge’s decision must necessarily be biased as well. In the author’s own words: “Under a property rule, a right holder is allowed to determine the value of their entitlement; under a liability rule, the power to determine the value of the entitlement is taken from the right holder and given to an objective state organ. Once we recognize that state organs are not objective, but racially biased, it is clear that the move from a property rule to a liability rule is not a neutral one.” (Pp. 483-84.)
For this reason, a judge’s decision to protect an entitlement with a liability rule not only “amounts to the appropriation of the holder’s ability to determine the value of their right” (a fair point, to be sure, but one that was recognized by Calabresi and Melamed in their original Article) but, more perniciously, will be made by “a biased state organ, who is likely to undervalue the right” when it comes to racial minorities (P. 484). The Article points to specific data supporting the fact that judges and jurors tend to undervalue (1) the future earnings of racial minorities, often reinforcing the racial wage gap that already exist as a byproduct of historical and systemic racial discrimination (P. 517), (2) the home values of racial minorities, where “Black homeowners are about twice as likely as white homeowners to have their homes appraised lower than the actual selling price” (P. 509), and even (3) the pain and suffering experienced by racial minorities, presumably on the ground that Blacks experience less pain than their white counterparts from similar injuries (Pp. 513-14), thereby leading to lower compensation when liability rule protection is chosen by a judge instead of property rule protection.
In short, the author makes a convincing argument that, at the very least, judges should consider accounting for their biases by putting a thumb on the property rule side of the scale when choosing between property and liability rules. But even if a judge believed that they were truly unbiased (a dubious proposition in itself) and were really concerned about choosing the most efficient rule, the author makes a compelling argument that judges should still be forced to pick the rule that best ensures that wrongdoers who would infringe on another’s entitlements internalize the full costs of their behavior. At the very least, this would mean that if liability rule protection were chosen, the wrongdoer should have to pay for the full cost of their harmful activities, rather than costs that are systematically undervalued due to racial bias, as the latter would distort economic incentives and allow wrongdoers to continue to engage in economically-inefficient behavior (i.e., behavior in which their victims were not fully compensated).
Of course, there is much more in this Article than can be captured by this short summary, but I can heartily recommend it to anyone interested in law and economics or critical race theory in general, or to anyone who teaches property rules and liability rules in any of their classes (which, I imagine, is a not insignificant portion of the legal academy). I know I will be discussing this Article in both my Remedies and Jurisprudence classes this Spring and look forward to excellent class discussions around these themes!
May 13, 2024 Kristina NiedringhausLibrarianship and Legal Technology
I usually avoid articles about generational differences because they too often veer into the “kids these days” territory. However, from her opening quote and introduction, I suspect that Prof. Schlinck and I have similar feelings about those types of articles. As she writes, “After all, if complaints about the younger generation’s “tyranniz[ing] their teachers” (referencing a quote from Plato, or someone) dates back to ancient Greece, then it may be time to see our students as occupying a glass half full.” (P. 272.) Prof. Schlinck’s article, OK, Zoomer: Teaching Legal Research to Gen Z, provides a brief explanation of generational theory before exploring aspects of Gen Z’s “peer personality.” She then translates those generational traits into pedagogical strategies for optimizing legal research instruction for today’s typical law student. While the suggested techniques are discussed in the context of research instruction, most of them can be extrapolated to other subjects and will be useful for teaching a variety of law school courses.
Prof. Schlinck’s article outlines ten pedagogical tactics that respond to the generational traits of Gen Z.
Explain the relevance to legal practice: Prof. Schlinck posits that if Gen Z’s reaction to the Great Recession is concern about employment and financial security, students want to know how what they are learning will benefit them in their practice. Explain why they are learning something. Legal research instructors are encouraged to explain the real-world costs of legal research and how becoming more efficient researchers will affect the bottom line.
Record short lectures for pre-class homework: Gen Z students who prefer short-format video learning will appreciate a flipped classroom approach that allows students to learn in chunks (no longer than 20 minutes) individually before class. Prof. Schlinck emphasizes that quality matters. Content, video, and audio should all be high quality. Embedded questions can be used to incentivize focus. This is a technique I use in my legal research course. Using recorded mini-lectures and quizzes before class has the added benefit of allowing time in class for assignments that simulate real-world research problems, they may face in practice but with me there to answer questions and provide guidance.
Redesign group work: Prof. Schlinck highlights that while Millennials tend to enjoy group work and collaboration, Gen Z prefers a more hybrid approach. She explains that while Gen Z students typically do enjoy collaboration, they prefer to first have time to learn the material on their own before working in a group. Gen Z students may also prefer to work by themselves on assignments that will count toward their grade.
Turn the research memo into the research email: Students need practice communicating the results of their research. Many legal research instructors use the construct of the research memo to the partner as a method of practicing this skill. However, Prof. Schlinck points out that this information is more often conveyed as an email rather than a more formal memo. But, if as suggested, Gen Z is uncomfortable communicating by email, this suggestion becomes doubly important.
Provide regular, and timely, feedback on formative assessments: One example provided by Prof. Schlinck of this type of assignment is a live critique. She explains that Gen Z law students experienced near-constant standardized testing throughout their K-12 education. In contrast, a live critique provides in-person interaction desired by Gen Z while also giving them needed practice receiving feedback. Prof. Schlinck recommends making a live critique assignment ungraded to eliminate one source of stress from the experience.
Relate course work to what they care about: Gen Z law students tend to be more engaged with social and political issues and Prof. Schlinck suggests harnessing this trait by partnering with legal organizations for real-world legal research experiences. Although not suggested by Prof. Schlinck, I suspect there might be some benefit, although lacking the real-world component, in designing research hypotheticals that go beyond fences over the property line or dog bites and present scenarios related to issues like climate change or public surveillance.
Embrace the search engine and internet research: Traditionally, law faculty have preached about the dangers of using tools like Google and misinformation on the internet. As Prof. Schlinck states so aptly, “Zoomers are going to use Google for legal research, no matter how many times they are told not to.” (P. 299.) We need to teach them how to use the tools more effectively and to think more critically about how they search and how they assess their results. Given the past few months, I would extend this strategy to say that we need to also embrace generative AI. It is here and firms expect our students to understand how to use it and it is our job to teach them. In many ways, prompt engineering in AI is like constructing a search. This seems like a logical extension of our role in teaching law students how to search effectively and critically evaluate their search results.
Teach the process, not the platform: A key tenet of effective legal research is that legal sources are interconnected, and we use that interconnectedness to be more efficient and effective researchers. Traditionally, this has been more obvious when looking at print resources. Prof. Schlinck argues that law students today exist in a world where they will rarely, if ever, use print resources. Accordingly, we should be teaching them the structure and links between sources regardless of format, rather than showing them the structure in print and expecting it to translate to electronic. She also observes that by doing this we are creating “technologically resilient” graduates who can navigate the ever-evolving research platforms successfully.
Teach Critical Legal Research and name it: Prof. Schlinck argues that law students should be deliberately and transparently taught Critical Legal Research. Critical Legal Research examines how the structure and organization of legal information is influenced by underlying biases and decisions that impact the practice of legal research. For example, there has recently been discussion and advocacy around identifying “slave cases” when they are cited in legal materials. One purpose of this effort is to demonstrate how the structure of legal information contributes to the continued citation of slave cases as good law (See for example the Citing Slavery Project). She argues that teaching Critical Legal Research teaches students how to think critically about information sources in a broader context as well and helps teach critical analysis.
Care, and show it: If Gen Z expects inclusion, diverse viewpoints, acceptance of self-care, and a respectful environment, Prof. Schlinck argues that can be achieved by demonstrating care through responsiveness, empathy, and seeking student feedback on how they are learning. She goes on to say that care, or passion, for the subject, may also be helpful here. “Subjects often perceived as boring–legal research included–can be engaging if the Prof. is excited about the material and the class.” (P. 304.)
Prof. Schlinck’s article is deft at drawing connections between the generational traits typically associated with Gen Z and pedagogical techniques that can produce the best results with Gen Z in the legal research classroom. Many of these techniques are also readily transferrable to other skills and doctrinal subjects in the law school curriculum. The article is also an excellent read for learning more about the traits and social context of the typical law student today. Many faculty adjusted teaching strategies for Millennials and there are some significant differences between Gen Z and Millennials. It is time to update law school pedagogy to respond to these changes.
Apr 30, 2024 Steve GoldEnvironmental Law
When young people accusingly complain that my generation unfairly saddled them with the problem of climate change, I like to remind them that my contemporaries and immediate forebears advocated for, enacted, and implemented–indeed, invented–modern environmental law in this country. However true it is that we failed to protect our heirs from climate change, we are bequeathing them a world that is demonstrably cleaner and healthier than it would have been absent the spate of environmental lawmaking that began in 1970.
In the articles reviewed here, two lions of the founding era, each writing with a younger co-author, remind us that the success of U.S. environmental law remains incomplete. Climate change, these articles point out, is not the only environmental problem of global scale and massive if unpredictable consequence–nor the only problem that environmental law has been unable to solve. Robert Adler and Carina Wells take on the law’s failure to deal with pollution from plastics. Mark Nevitt and Robert Percival tackle the law’s feeble response to PFAS (per- and poly- fluoroalkylated substances). We who once pondered the limits to growth must now confront the limits to law. Or at least the limits to existing U.S. environmental laws.
The substances these articles address are overlapping sets: many plastics contain or are made with or from PFAS, although many plastics have no PFAS and many PFAS are not plastics. Not surprisingly, they share traits that have made them intractable. First, both PFAS and plastics are incredibly useful. The articles concede this utility, though both skip over it lightly–particularly Nevitt and Percival, who mainly acknowledge the function of PFAS in aqueous film-forming foam used to fight fires. Second, both PFAS and plastics are incredibly diverse. That diversity seems always to increase as industry invents new chemical structures and new products. Third, both PFAS and plastics create a frightening array of ecological and public health dangers.
The articles unsparingly describe these dangers. Adler and Wells attempt a life cycle analysis of the externalities embedded in plastics, from extraction of raw materials through production processes through product disposal. The task is far beyond the capacity of a single law review article, but even in the broad generalities they necessarily employ, their catalog is impressive. I stopped counting when my list of distinct environmental impacts described in their article reached twenty. Nevitt and Percival focus more tightly on the public health dangers of exposure to PFAS as an environmental contaminant. But their analysis too is really about a life cycle, as PFAS dispersal into the environment can occur at any point from chemical synthesis to disposal of process wastes to use and disposal of PFAS-containing products. For some uses, like firefighting, environmental dispersal is almost the point.
After describing the environmental dangers of PFAS and plastics, the articles dolefully explain how our environmental statutes have not protected us from these dangers. For PFAS pollution, Nevitt and Percival work through the failures of a half-dozen potentially useful statutes: the Safe Drinking Water Act (SDWA), the Toxic Substances Control Act (TSCA), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Resource Conservation and Recovery Act (RCRA), the Clean Water Act (CWA), and the Emergency Planning and Community Right-to-Know Act (EPCRA). For pollution from plastics, Adler and Wells explore the failures of a different half-dozen: the CWA and the Clean Air Act with respect to pollution from production processes, RCRA and CERCLA with respect to waste disposal, and TSCA and the Food, Drug and Cosmetic Act (FDCA) with respect to the manufacture and use of plastics-related chemicals and food-contact substances, respectively.
Interestingly, neither pair of authors blames politics for the failure of existing law to provide adequate protection from known dangers. Instead, both articles tell a depressing story of regulatory slowness verging on paralysis, even when the intent to act seems present. The story is familiar to students of environmental law and administrative law, but the details are still arresting.
Nevitt and Percival, for example, describe the creeping pace of PFAS regulation under the Safe Drinking Water Act (SDWA). EPA in 2009 listed certain PFAS for evaluation, in 2012 required collection of monitoring data for two years, in 2016 issued a non-binding health advisory for just PFOA and PFOS (the two most notorious PFAS), in 2019 announced an intention to issue a binding maximum contaminant level (MCL) for those chemicals, and in 2021 made a final determination to do so. In 2023, too late to be included in Nevitt’s and Percival’s article, EPA published a proposed rule that would set that MCL. EPA has yet to issue a final rule.
Adler and Wells, for another example, assess EPA’s technology-based regulation of water pollution discharges by the organic chemicals, plastics, and synthetic fibers industry. They recount that EPA first promulgated these regulations in the mid-1970s, but after a successful court challenge it took EPA until 1987 to issue new rules. Those 1987 rules remain in effect. Adler and Wells note that the industry (not to mention pollution control technology) might have changed a bit since then.
Adler and Wells offer an explanation for such regulatory stagnation. Required to show that its regulations satisfy the statutory standard, forced to comply with a host of additional justificatory requirements imposed by executive order or by other statutes, mindful always of the likelihood of petitions for judicial review, EPA simply is incapable of keeping up with complexity, change and innovation in the industries it regulates. Underlying it all, they assert, is the free market approach that dominates U.S. environmental law. They observe that in order to mitigate the effects of externalities, this approach tolerates regulation of how industry produces its output and handles its waste, but not regulation of what industry produces.
Nevitt and Percival delve less into theory, but their explanation is similar. They too note the information-dense requirements of EPA’s statutory authorities. They point out that the prevailing regulatory model requires that these authorities be applied to each distinct chemical entity, one at a time. Moreover, they note that the structure of the Toxic Substances Control Act (TSCA), even as amended in 2016, leaves it to the chemical industry to develop and disclose information about the toxicity of its products. This puts EPA in the position of responding to harm caused by PFAS and other toxic chemicals instead of achieving the statute’s putative goal of preventing the harm from occurring in the first place.
In light of their devastating critiques of the efficacy of existing environmental law, the articles’ proposals for reform seem wan. Adler and Wells put their weight behind the Break Free from Plastic Pollution Act, legislation introduced in the U.S. Senate in 2023. The bill is admirably catholic in its mix of regulatory approaches and economic incentives, but even Adler and Wells acknowledge that some of these approaches would face the same constraints that have hobbled existing environmental statutes. Nevitt and Percival praise two bills introduced in 2021. The Filthy Fifty Act would have required study and remediation of PFAS contamination at select military facilities. The PFAS Action Act of 2021 would have required EPA to complete some regulatory actions, including listing PFOA and PFOS as hazardous substances under CERCLA and setting an MCL for these compounds.
None of these bills would provide a solution commensurate with the articles’ description of the challenges environmental law faces in protecting people and the planet from plastics, PFAS, and other problems of similar scale. Of course, none of them became law, either. The reality of the political moment may suggest that it is not even worth thinking about deeper reforms. But if environmental law scholars do not think that way, who will?
These articles get at something fundamental in environmental law. The law assumes that the market knows best until a regulatory agency proves otherwise. The market has given us plastics in vital medical equipment and in disposable drinking straws, PFAS in flame retardants and in fast-food wrappers. Meanwhile, regulators are on their heels, always playing catch-up. Nevitt and Percival float the idea of reversing the burden, requiring chemical manufacturers to demonstrate the relative greater need or lower toxicity of their particular PFAS product.
In concluding their articles, both pairs of authors plead for a more precautionary approach to regulating the environmental and health effects of complex and rapidly-changing groups of industrial chemicals and products. The plea is also a challenge: can we design that approach? That challenge, perhaps, is the most important contribution of these fine pieces by Adler and Wells and by Nevitt and Percival.
Cite as: Steve Gold,
The Limits to Law(s), JOTWELL
(April 30, 2024) (reviewing
Robert W. Adler & Carina E. Wells,
Plastics and the Limits of U.S. Environmental Law, 47
Harv. Env’t L. Rev. 1 (2023).
Mark P. Nevitt & Robert V. Percival,
Can Environmental Law Solve the “Forever Chemical” Problem?, 57
Wake Forest L. Rev. 239 (2022).
),
https://lex.jotwell.com/the-limits-to-laws/.
Apr 26, 2024 Bethany BergerNative Peoples Law
During Elouise Cobell’s campaign against federal management of Indian trust accounts, she learned that the U.S. did all sorts of things with the money. In the 1970s, for example, trust funds went to bailing out New York City and the Chrysler Company. Meanwhile, Native beneficiaries of the accounts couldn’t get payouts to rebuild destroyed homes or care for ill loved ones. And the records of who the accounts belonged to and what should be in them were out-of-date, kept in garbage bags and dilapidated boxes, destroyed by water and gnawed by rodents.
The history of federal Indian trust funds might be seen as simply another example of bureaucratic mismanagement and lack of concern for Indigenous property. But Emilie Connolly’s research shows that it is something more. In, Fiduciary Colonialism: Annuities and Native Dispossession in the Early United States, Professor Connolly examines the early history of such trust accounts to show that their creation and management was itself a tool of colonial domination. By holding and gradually paying out moneys owed to tribes, the United States could achieve expropriation without expensive wars, encourage tribal dependence, and invest the funds to finance further dispossession. As Connolly writes, “[a]nnuities and trust funds anchored . . . a mode of territorial acquisition and population management carried out through the expansion of administrative control over Native peoples’ wealth.” (P. 227.)
The United States began regular distributions to tribal nations in its founding years. Often promised perpetually to tribal treaty partners, these “annuities” borrowed from the pre-contact gift diplomacy through which Algonquian and Iroquoian peoples forged relationships of tribute and alliance. Indigenous recipients rejected the idea that these were payments for land cessions; they reflected obligations between allies, not compensation for territory. But even without agreement on their meaning, these distributions served U.S. goals by encouraging allegiance, undermining trade relationships with England and Spain, and introducing “civilizing” goods such as plows, spinning wheels, and European clothing into Indigenous communities.
After the war of 1812, annuities became more clearly tied to land cessions. Their amount increased and their nature changed: they were paid in cash rather than goods, and metal hard money–“specie”—rather than paper money. The shift to specie was significantly at Indigenous insistence, and tribal nations used it to buy livestock and build infrastructure that enriched the wealth of their communities. In the wake of the devastating removals west of the Mississippi beginning in the 1820s, tribes used annuity payments to rebuild, financing education and agriculture, health care and orphanages.
But annuities enriched others as well. At a time that hard money was more valuable and far rarer than regional paper currency, annuity distributions “became prizes, founts of high-powered money fought over by rival officials and local stakeholders.” (P. 241.) Federal Indian agents would lend out the specie under their control, pocketing the interest. Traders swarmed disbursement sites, receiving specie in exchange for goods and demanding it in exchange for debts they claimed tribes had incurred. The influx of cash also fueled frontier communities, encouraging settler migration to Indigenous homelands.
Fiduciary colonialism’s most perverse impact was in using tribal funds to finance tribal dispossession. Compensating tribal nations for land cessions by annuities rather than lump sum payment meant that the United States could acquire the land well before paying for it. Instead, it could sell the land to speculators and settlers, and use their payments (often far more than promised to tribes) to fund the annuity. And once the fund was in place, the United States could “invest” it in ventures of its own. Often these investments were in state issued bond funds used to build infrastructure, such as canals, railroads, and roads, that accelerated settler expansion. Feverish state borrowing led the state bond market to collapse in 1839, leaving states deeply in debt to tribal trust funds. Reflecting the value of obtaining Indigenous land by money rather than war, the federal government made up the shortfall itself.
Control over tribal funds also gave the U.S. crucial leverage over tribal people. The federal government used threats to terminate annuities to secure land cession treaties and extralegal dispossession. In later years, agents would withhold annuities from individual tribe members who refused to send their children to boarding school or otherwise participate in civilization schemes. And although the federal government had created annuities for its own purposes, it used these disbursements to portray Native people as dependent and in need of supervision. Forgetting that the funds represented Native property owed in compensation for Native land, the U.S. condemned the funds’ beneficiaries for wanting what they were owed.
Fiduciary Colonialism opens a window on the modes and means of colonial expropriation. It sheds new light on the federal government’s “trust relationship” with Indigenous peoples, revealing the origins of federal control in management of tribal moneys rather than tribal lands or welfare. Given this origin, the $176 billion that Cobell’s attorneys found had been misappropriated from trust funds is less surprising. Federal control of Native money was never designed to benefit Native people, but instead to benefit those who sought to displace them.
Cite as: Bethany Berger,
Twisted Trust, JOTWELL
(April 26, 2024) (reviewing Emilie Connolly,
Fiduciary Colonialism: Annuities and Native Dispossession in the Early United States, 127
Am. His. Rev. 223 (2022)),
https://lex.jotwell.com/twisted-trust/.
Mar 26, 2024 Cynthia AlkonDispute Resolution
During the pandemic, courts in the United States, and around the world, experimented with online proceedings in both civil and criminal cases. The increasing use of online processes during this time focused attention on how moving away from in-person proceedings can change and alter our legal system and continues to raise difficult questions. Are online proceedings a good thing for justice? Can using more technology in our courts help to improve how our legal system works? Could more online proceedings make our courts more accessible and actually improve justice? These are key questions for anyone looking at dispute system design and how our criminal and civil court systems work. Mentovich, Prescott, and Rabinovich-Einy offer an intriguing look into the possibility of online processes to improve access to justice and legitimacy by examining parties’ perception of online processes in traffic cases.
Why traffic cases? Most people are un-represented in traffic cases and they are seen as minor. However, the authors observe that traffic cases can provide an “important insight into the consequences of the shift online for court legitimacy” (P. 191) for three reasons. First, traffic cases are a majority of online proceedings and they use written asynchronous communication, not video or other real-time interactions. Second, traffic cases are a majority of all court cases in the United States. Finally, these cases are cases of individuals directly confronting the government. What happens in traffic court impacts a significant number of people despite the low-stakes. Therefore, examining how traffic court participants who are using online processes perceive the process can give valuable insights. The authors conducted an empirical study of traffic court participants from online traffic proceedings between December 2019 and August 2020. The survey asked participants about their experience both with the online court proceeding and the legal system in general.
Although legitimacy and parties’ perceptions of procedural justice have been studied, this has not been done in the context of online court proceedings until this study. The other piece that the authors add is looking at socio-economic status and perceptions of access to justice and how online proceedings may “tap an additional source of system legitimacy.” (P. 194.)
Procedural justice focuses on the process, not the outcome and these authors distill it to three basic components: “how parties perceive they are treated by legal authorities during legal proceedings,” “parties perceptions of the fairness of the decision-making mechanism,” and “whether parties perceive the process as one where they can tell their story” and be heard. (P. 191.) The authors do a good job of summarizing procedural justice scholarship focusing the reader on the key issues for their study of traffic cases. Through this discussion the authors explain why parties’ perceptions matter in looking at questions of procedural justice and, ultimately, legitimacy.
Online proceedings allow participants, if the process is asynchronous, to “engage with it at their own pace and at a time and place of their choosing.” (P. 190.) As the authors point out this has the advantage of relieving parties from the need to take time off work (with all that entails) and “can allow them to communicate from a familiar environment in writing.” (P. 190.) They refer to a process with “easy to use online tools” that can help parties to understand the process and help them to make arguments without needing lawyers or legal representation. (P. 190.) Online proceedings can improve access to justice because of the lower costs, “removing geographic and physical barriers and mitigating psychological difficulties” of traditional courts. (P. 194.) The authors recognize that not all litigants will find it equally easy to engage online and that their study is not necessarily representative as it is focused on those that have both used an online process and agreed to answer survey questions. As should not be surprising, the survey found that lower income participants “place greater relative weight on access-to-justice considerations in their evaluation of the legitimacy of the legal system relative to higher-income individuals” who weigh procedural justice higher. (P. 203.)
This is an excellent article to spark (I hope) more research into the strengths and weaknesses of online processes in a variety of contexts beyond traffic cases. How the process works matters and courts should be considering alternatives so litigants are not languishing for hours and days waiting for cases to be called in court when there might be alternative processes that could protect rights and give better options. Overall, the authors conclude that their study raises questions that should be followed up with additional research. This study is a first look and the authors acknowledge that “we still have much to learn about procedural justice, access to justice, and legitimacy in online settings.” (P. 205.) The authors have done an excellent job laying out the questions and issues that we should look at moving forward. Courts can fall into the trap of focusing on expediency and not justice. This article gives a clear argument, supported by data, that the process matters and that how parties will perceive the process should be front and center in any decision about what processes to use and how those processes should work. As the authors point out, failing to do so can impact parties’ views of the legitimacy of the system as a whole.
Cite as: Cynthia Alkon,
Can Online Proceedings Bring Better Access to Justice?, JOTWELL
(March 26, 2024) (reviewing Avital Mentovich, J.J. Prescott, & Orna Rabinovich-Einy,
Legitimacy and online proceedings: Procedural justice, access to justice, and the role of income, 57
Law & Soc'y Rev. 189-213 (2023)),
https://lex.jotwell.com/can-online-proceedings-bring-better-access-to-justice/.
Mar 5, 2024 Aila HossNative Peoples Law
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.
Feb 15, 2024 Felix MormannEnergy Law
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.
Jan 31, 2024 Eric BiberEnvironmental Law
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.
Dec 20, 2023 Anita KrishnakumarLegislation
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.”
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.
