Tort Liability and Unawareness

We explore the implications of unawareness for tort law. We study cases where injurers and victims initially are unaware that some acts can yield harmful consequences, or that some acts or harmful consequences are even possible, but later become aware. Following Karni and Vierø (2013), we model unawareness by Reverse Bayesianism. We compare the two basic liability rules of Anglo-American tort law, negligence and strict liability, and argue that negligence has an important advantage over strict liability in a world with unawareness—negligence, through the stipulation of due care standards, spreads awareness about the updated probability of harm

Fears, Faith, and Facts in Environmental Law

Environmental law has long been shaped by both the particular nature of environmental harms and by the actors and institutions that cause such harms or can address them. This nation’s environmental statutes remain far from perfect, and a comprehensive law tailored to the challenges of climate change is still elusive. Nonetheless, America’s environmental laws provide lofty, express protective purposes and findings about reasons for their enactment. They also clearly state health and environmental goals, provide tailored criteria for action, and utilize procedures and diverse regulatory tools that reflect nuanced choices. But the news is far from good. Despite the ambitious nature of the nation’s environmental laws, the environment and environmental law in the United States today face many pressing challenges, among them climate change, political vacillations, and a currently antiregulatory Supreme Court that uses unpredictable linguistic games and fact-free exaggerations to reject protective actions. This six-justice antiregulatory majority on the Supreme Court has, in 2022 and 2023, begun to embrace its newfound power and act to further its preferred views of the world, politics, and environmental policy. As discussed below, these antiregulatory justices don’t like agencies, don’t like deference, don’t trust Congress, and find statutes wanting. These justices seem confident in their analytical rigor and integrity, yet often paint skewed views of regulatory actions, trod sloppily over what statutes actually say and do—especially in their neglect of laws’ protective designs and choices—and instead focus almost exclusively on resultant costs claimed by those opposed to the laws’ protective goals. This article, based on a 2023 Distinguished Lecture at Florida State University College of Law, focuses on the role and possible corrective power of facts, science, and other sorts of “effects claims” in environmental law policymaking. After briefly identifying the fact and science-linked problems motivating this article, I turn to several predictable sorts of fears that both shape our environmental laws and motivate resistance norms that threaten environmental progress. I next turn to the double-edged sword of faith—not in the religious sense, but in the sense of trust or confidence in people and institutions that affect environmental outcomes. Different sorts of faith are displayed by, and motivate, both environmental interests and those seeking to shelve or weaken environmental laws. This article argues that more rigorous documentation and testing of facts, science, and other effects observations, assertions, and predictions—which this article labels as “effects claims”— and overt challenges to conjecture, dissembling, and exaggerations, could force all to engage with evidence and empirical judgments made salient by legally binding choices reflected in this nation’s environmental statutes. The focus should be on facts, science, and tested effects claims linked to each statute’s particular express goals and action criteria. This increased reliance on and documentation of facts should include development of scientific evidence, assessments of technological and business practice capacities, and on-the-ground observations about environmental ills and effects claims about such risks, harm-creating actions, and regulatory responses. More factually-tethered regulatory actions, built on such documented and tested effects claims, could reduce wild oscillations, check judicial overreach, and even build trust and lock in progress. Law—especially environmental law—as mostly a word-based power game must be de-emphasized

The Persistent Public Health Emergency

May 11, 2023 was ostensibly a day of celebration. With infections and deaths from COVID-19 down, the federal government announced the end of the official Public Health Emergency three years after its initial declaration. But the conclusion of the Public Health Emergency also signaled the termination of unprecedented health protection measures—outside the realm of healthcare—such as eviction and utility shutoff moratoria and emergency rental and utility assistance. These COVID-era measures successfully cut eviction filings nationally by more than half and provided people in many jurisdictions with the protections and assistance needed to maintain their electricity, heat, water, and gas. Now that those measures have ended, evictions and residential utility shutoffs are again rampant, surpassing pre-pandemic levels in numerous places. For marginalized and minoritized communities that have long disproportionately experienced evictions and utility disconnections and their connected health harms, the health emergency persists.This Article scrutinizes legal drivers of health outside of healthcare—specifically in the areas of housing and residential energy access—and applies the theoretical lens of health justice to glean lessons from legal interventions in those areas during and after the COVID-19 Public Health Emergency. Drawing upon the critical theoretical perspectives that a health justice analysis necessitates, it contends that as contagion risks represented an alignment of interests among those who have long been marginalized and those with more privilege, the country engaged in a significant experiment in a time of crisis—taking unprecedented action in halting many evictions and utility disconnections and providing historic levels of emergency rental and utility assistance. Although these measures had positive impacts, they were ultimately temporary and inadequate. Instead of seizing on the opportunities for more transformative reform that can arise from a crisis, such COVID-era measures failed to lead to a meaningful disruption of the status quo. This Article concludes by arguing that to achieve health justice, reforms must be sustained, structural, and led by the communities who endure daily the legally constructed public health emergency of health inequity

\u3ci\u3eMorrison\u3c/i\u3e’s Flawed “Focus” Test and the Transnational Application of the (Misinterpreted) Wire Fraud Statute

Federal prosecutors\u27 mantra is “when in doubt, charge wire fraud.” Section 1343 can be applied to any scheme to defraud--a capacious term that encompasses everything from computer scams to bribery and smuggling--in which a wiring (by phone, text, internet communication, or the like) can be identified. Given the explosion of transborder criminality--especially that conducted by wire--the geographic scope of the statute is of great practical importance. This Article resolves a circuit split by applying the Supreme Court\u27s presumption against extraterritoriality and concluding that nothing in § 1343 rebuts that presumption. It then attempts to answer the critical question of what constitutes an acceptably “domestic” case as opposed to a forbidden “extraterritorial” one. For example, consider the FIFA corruption case in which foreign entities allegedly bribed foreign soccer officials to secure foreign broadcasting rights to foreign soccer matches. Will the fact that the bribes were wired from a New York bank account suffice to make this an acceptably domestic prosecution? According to the Supreme Court, one resolves such questions by identifying if there is conduct occurring within U.S. territory that is the “focus” of the statute. The lower courts have largely identified the “focus” of the statute to be the wiring element, such that regardless of the location of perpetrators, the victims, or the fraudulent conduct, the fact that a wiring crosses a U.S. border means that federal prosecutors can pursue the case. The answer, then, in the FIFA corruption cases was “yes,” but should it have been? Given that the overwhelming majority of federal criminal statutes do not speak to their geographic scope and the strength of the Court\u27s presumption against extraterritoriality, the applicability of most federal criminal statutes to transborder conduct will turn on what courts determine the statutes\u27 focus to be. The literature is filled with critiques of the Court\u27s presumption, but almost no attention has been paid to the “focus” test. This Article, then, fills a serious gap in the literature by scrutinizing the Court\u27s novel “focus” test and demonstrating not only that the test ignores the common-law approach and the Court\u27s own traditional elements-based analysis but also that it is fatally subjective, unworkable, and arbitrary in its results. The lower courts\u27 analysis of the statutory focus is often cursory and reliant on inapposite caselaw. This Article addresses this analytical deficiency by identifying a taxonomy of criteria that ought to be applied to federal statutes to determine their focus and illustrating how these criteria are applied by reference to the wire fraud statute. Finally, this Article makes the case that the reason the courts have thus far failed to identify a textually sound and practically sensible “focus” for § 1343 lies not only in the flawed “focus” test but also in the incoherency of the wire fraud offense resulting from the Supreme Court\u27s disregard of the statutory text. This Article critiques the Court\u27s rewriting of § 1343 to eliminate both the mens rea mandated by Congress and the statute\u27s requirement that the wiring have a close nexus to the furthering of the fraud, a change that applies to all wire fraud cases, not just transnational prosecutions. This Article demonstrates, by reference to criminal law theory, that § 1343 is not a crime at all, at least measured by traditional requirements. To return to the “focus” test, it is the Supreme Court\u27s misinterpretation of the statute that requires the lower courts\u27 nonsensical conclusion that the “focus” of a criminal prohibition is an unknowing, unintentional act that is innocent on its face and has no necessary connection to the execution of the culpable scheme

\u3ci\u3eBrown\u3c/i\u3e Now: The Surprising Possibility of Progressive Reform

For four decades, the Supreme Court has engaged in a determined, systematic and successful effort to transform and tame Brown v. Board of Education. But in this article, written for a symposium on Brown at 70, I suggest a surprising counterweight to the standard narrative. If one takes modern doctrine seriously -- a big if, I concede-- it has the potential to support some progressive goals. In particular, modern doctrine might provide progressives answers to three questions: Are race-conscious but facially neutral means of increasing diversity at state institutions of higher education constitutional? Are legacy admissions to state run institutions of higher education constitutionally vulnerable? Is discrimination based on sexual orientation subject to heightened scrutiny

The Lawlessness of Sackett v. EPA

When the Supreme Court speaks on a disputed statutory interpretation question, its words and edicts undoubtedly are the final judicial word, binding lower courts and the executive branch. Its majority opinions are the law. But the Court’s opinions can nonetheless be assessed for how well they hew to fundamental elements of respect for the rule of law. In particular, law-respecting versus law-neglecting or lawless judicial work by the Court can be assessed in the statutory interpretation, regulatory, and separation of power realms against the following key criteria, which in turn are based on some basic rule of law tenets: analysis of the Court’s respect for other branches’ constitutional roles and, in particular, congressionally enacted policies; the predictability of statutory interpretation moves by the Court; the rigor and accuracy with which the justices grapple with other legal actors’ actions and contentions; plus the Court’s characterization and honest work with its own precedents. In addition, the Court’s opinions are lawlike or less lawlike depending on the clarity of the Court’s reasoning and fact-law linkages, so its own prospective effects are clear and knowable. The Court’s ruling in Sackett v. EPA, which radically reduces the reach of the Clean Water Act’s protected “waters of the United States,” is unusually lawless even for a Court that in the last few years has often shown itself willing to overrule precedents. Overruling unsettles the law, but if done transparently and with full grappling with the old law and clear explanation, it is not necessarily lawless. Sackett involves unacknowledged overruling, and further shows lawlessness in its statutory interpretation, its characterization of its past Clean Water Act precedents, and in repeatedly characterizing the stakes and Act’s reach without hewing to the case facts, agency records, or balanced work with the Clean Water Act\u27s actual governing texts. This brief Article, which is part of a follow-on paper symposium with scholars analyzing Sackett, parses the Sackett majority opinion against the backdrop of the statute’s actual provisions, the facts of the dispute, decades of tested and vetted regulatory materials, and key environmental and administrative law precedents. With almost no acknowledgment of the revolution wrought by the opinion, the Court—speaking through the majority opinion of Justice Samuel Alito—leaves a trail of abandoned, undercut, and unsettled bodies of law. Some owners of land-water borderline properties with an eye on new real estate development may have reasons to celebrate, antiregulatory think tanks have been rewarded, plus lawyers may benefit from sorting out new legal confusion. But as a result of Sackett, the nation’s waters are far more imperiled, others’ expectations dashed and needs neglected, and the nation’s legal fabric has been harmed. The majority opinion is built on layers of lawlessness

Leveraging Information Forcing in Good Faith

Leveraging Information Forcing in Good Faith, a chapter in Research Handbook on Law and Time, argues that the information-forcing-substance theory has a significant role to play both in how courts decide duty of good faith and oversight matters and in how active and engaged directors can add value in the boardroom. As explored in the chapter, by deploying the theory in corporate-law matters, the courts can reveal the information gaps between officers and directors and create pressure for better processes and discourse within the corporation. In turn, this can impact both the way in which fiduciaries interact with each other and on behalf of shareholders, as well as the substantive choices they make. This chapter uses case studies involving Boeing and McDonald’s to reveal how judges can use information forcing to develop more robust disclosure discourse in the good faith and oversight context and increase the creative friction vital to effective corporate governance. The chapter focuses first on how the evolution of the corporate form and the laws supporting it have impacted the growth of the law in the corporate fiduciary duty space, and the impact of the procedural posture and timing of litigation on the understanding of the duty. The chapter utilizes case studies based on the McDonald’s and Boeing litigation in Delaware, and examines them through the lens of the information-forcing-substance theory from federal securities regulation. The case studies illuminate how the courts have already used information-forcing-substance theory in practice (although not calling it by that name) to drive additional discourse within the board room and between directors and officers. The chapter, however, also highlights how the moment in time nature of the opinions and the procedural posture of litigation can stunt the growth of positive law for the duty of good faith and oversight. The chapter then explores how courts can further apply the theory to ensure that oversight actually occurs through more information forcing, disclosure, and discourse for directors and officers

Breaking the Rules

“Breaking the Rules” is a legal research and writing assignment that I crafted for students completing their first year of law school. The assignment honors new students’ desire for skills that will allow them to effectively challenge the status quo of settled but discriminatory legal rules. Part I of this article is an essay that contextualizes and explains the assignment; Part II provides the assignment itself

Two Forms of Formalism in Contract Law

Formalism in contract interpretation has had many defenders and many critics. What lawmakers need, however, is an account of when formalism works and when it does not. This article addresses that need by providing general theory of contract exposition and differentiating between two salient forms of formalism in contract law. Formalities effect legal change by virtue of their form alone, thereby obviating interpretation. Examples include “as is”, the seal, and sometimes contract boilerplate. Evidentiary formalism, in distinction, limits the evidence that goes into interpretation. Plain meaning rules are an example of evidentiary formalism. The article provides a detailed analysis of each form of formalism, identifies when they are and are not likely to advance the goals of contract law, and discusses the optimal design of each type

Designing and Developing a Medical-Legal Partnership to Address Cancer Patients\u27 Health-Harming Legal Needs

The Georgetown University\u27s Cancer Legal Assistance and Well-being Project launched in 2020 as a medical-legal partnership that works with health care providers at a Washington, D.C. safety-net hospital to treat the health-harming legal needs of historically and intentionally marginalized patients with cancer