Good Representatives, Bad Objectors, and Restitution in Class Settlements

This Article uses two recent decisions — one prohibiting incentive awards to class representatives and one permitting disgorgement of side payments to class objectors — to explore deeper connections between class action settlements and the law of restitution. The failure to correctly apply the law of restitution led both courts astray. First, courts can approve incentive awards, as long as an award properly reflects the benefit that the representative\u27s efforts bestowed on the class. Second, restitution provides a basis to disgorge improper side payments to objectors, but only under conditions different from those that the court described. More broadly, attention to the substantive and remedial principles of restitution can provide useful solutions to vexing problems of class action practice

Rebuilding Grid Governance

As climate change sharpens the focus on our electricity systems, there is widespread agreement that the institutions that govern our electric grid must change to realize a clean energy future in the timescale necessary. Scholars are actively debating how grid governance needs to change, but in this Article we demonstrate that current proposals are insufficient because they do not contemplate “rebuilding.” This Article defines “rebuilding” as ending entities tasked with grid governance and creating new ones to take their place. We propose what no one else has: an overarching framework for rebuilding any grid governance institutions. This Article discusses when rebuilding is necessary, arguing that incrementalism has slowed progress toward more clean energy and that much bolder solutions are imperative. Policy proposals to date have been accommodative, tending to lead to slower progress toward clean energy goals than necessary. A further challenge is that utility dominance in regulatory conversations has led to inefficient and unjust outcomes, and would not be addressed sufficiently by current reform proposals. Addressing these challenges, this Article identifies three criteria for deciding when specific grid governance institutions should end, terming these administrative dysfunction (continued dithering over a subject without making sufficient progress), utility indifference to the common good, and incapacity of the current governance structure to achieve positive outcomes. This Article concludes that rebuilding is essential to ensure that grid governance will effectively mitigate climate change and address the shortcomings of our current grid governance structures. To guide the rebuilding of grid governance, this Article details three overriding principles for new entities, which are: resource agnosticism, broad-based participation, and a lack of self-centricity. This Article applies these principles to a specific setting – the “Minimum Offer Price Rule” prevalent in wholesale electricity markets that hampers clean energy development – and concludes that regional transmission organizations should not continue to disfavor clean energy in their markets

The Impact of Religion and Religious Organizations

Legal scholars often see religion as a mere private preference, choice, value, or identity with no more meaning or positive social impact than any other preference, choice, value, or identity. If anything, religion’s negative impacts are often highlighted. For example, a focus on the harms of religion often underlies contemporary legal debates about religious exemptions and tensions between religious rights and LGBTQ rights or reproductive rights. Conversely, scholars in other fields have documented religion’s distinctive pro-social features, proposing mechanisms by which religion has unique positive impacts on individuals, families, and society. While recognizing that, for its practitioners, religion has its own internal logic and rationales, this Article seeks to brings together broad empirical research and sociological and political theory on the social goods and pro-social values that religious belief, practice, and communities foster as well as to examine approaches to address the harms religion causes. The Article proposes religious freedom as a key mechanism to ensure maximal social benefit of religion. Religious freedom also underscores the value of the choice and experience of belief and unbelief

Dignity, Deference, and Discrimination: An Analysis of Religious Freedom in America’s Prisons

The free exercise of religion often presents a complex reality in prison. Over the years, the standard of scrutiny for free exercise claims has not only been easily alterable but also unclear and inconsistent in its application. Recent legislation, such as RLUIPA and RFRA, has significantly improved the state of religious freedom in prisons. However, two U.S. Supreme Court decisions on RLUIPA—Cutter v. Wilkinson and Holt v. Hobbs—have led to some confusion among lower courts regarding the level of deference that should be afforded to prison officials. Although Holt demonstrated a hard look approach to strict scrutiny, it did nothing to strike down or clarify Cutter’s deferential language. This is problematic because there is an inherent contradiction in applying strict scrutiny with deference. Although many courts follow a true strict scrutiny approach, in practice, remnants of a deferential approach remain among lower courts. This Note argues that courts must adhere to strict scrutiny, not only in theory, but also in practice. In doing so, it first gives a brief, general overview of the history of religious freedom in the prison system, with particular focus on the efforts and struggles of religious minorities. Then it addresses the inconsistency between Cutter and Holt while comparing the due deference and hard look approaches. Finally, to provide some concrete examples of why this inconsistency matters, it examines two issues more indepth: First Amendment retaliation claims and equal treatment claims. It looks at several recent cases to further support the conclusion that strict scrutiny is not only necessary to protect religious minorities’ rights, but it is also both practical and feasible, even in the prison context