Banking on Batteries: A New Solar Strategy to Profit from the Grid

The Kay Bailey Hutchison Center for Energy, Law, and Busines

Central Pathology Service Medical Clinic, Inc. v. Superior Court: Statute Limiting Punitive Damages for the Professional Negligence of Health Care Providers Includes Intentional Torts

In the 1992 decision of Central Pathology Service Medical Clinic, Inc. v. Superior Court the California Supreme Court held that every plaintiff injured by a health care provider must comply with section 452.13 of the California Civil Procedure Code, provided the injuries are directly related to the provision of professional services. Section 452.13 requires a pretrial determination of whether a punitive damage claim has a substantial probability of prevailing. This statute also applies to intentional torts, in which the plaintiff is injured by treatment to which the plaintiff did not consent. This Casenote analyzes whether additional procedural obstacles are warranted for victims of the intentional torts of health care providers, whether any potential decrease in damage awards may create a disincentive for attorneys to take on these cases, and whether the court\u27s holding broadens other statutes concerning the professional negligence of health care providers

Clientless Prosecutors

Class counsel and prosecutors have a lot more incommon than scholars realize. Because these lawyershave to make decisions on their client\u27s behalf that clientswould make in other contexts, they prompt substantialconcerns about lawyers\u27 accountability to their clients.Accordingly, there is a lot that each context can learn fromthe other about how to hold these lawyers accountable.This Article considers what criminal law can learn fromclass action law. Its central insights are first that diffuseentities comprised largely of apathetic individuals cannotbe expected to hold their lawyers accountable. And second,to combat that accountability deficit, just as judges playan important role in holding class counsel accountable, sotoo should judges play an important role holdingprosecutors accountable-both to their public-clients andtheir constitutional obligations.In more concrete terms, this Article contends that once aplea agreement has been reached, courts shouldsubstantively review the sentence that the partiesrecommend with an eye to the process that yielded theagreement, much as courts review class action settlements.As with class members in class actions, courts shouldafford opportunities to be heard to those who wish tocontest the deal to inform the court\u27s review. If courts arehamstrung at sentencing by prosecutors\u27 chargingdecisions that they think inappropriate, judges shouldarticulate their concerns and ask prosecutors to justifythose decisions on the record in open court to facilitateaccountability by the electorate and within prosecutoroffices

Paying for Pretrial Detention

American criminal law vastly overuses pretrial detention even as it purports to presume defendants innocent. This Article compares financial incentives in pretrial detention to those in civil preliminary injunctions. Both are procedures where one of the parties seeks relief before judgment. And yet, these two procedures employ financial incentives in opposite ways. Civil procedure discourages interim relief by requiring plaintiffi to bear financial risk when they obtain a preliminary injunction. Criminal law does the opposite-encouraging interim relief by requiring defendants to pay to avoid pretrial detention. The reasons that civil procedure relies on financial incentives to discourage requests for interim relief-to avoid undue settlement pressure and compensate for losses inflicted on defendants because of hasty procedure-apply with at least as much force in criminal law. Thus, this Article contends that employing diametrically opposed approaches to interim relief in the two systems is not justifiable. This disparity is troubling because it better protects the property rights of the wealthy over the liberty rights of the poor. Perhaps this troubling disparity should not be altogether surprising, however, because it embodies well-recognized pathologies in criminal law. The incentive disparity is one more way in which criminal law allows prosecutors not to bear the full costs of their decisions and averts the budget discipline that could constrain prosecutors-a variant of the correctional free lunch. This Article brings together several different strands of criminal law literature under the correctional free lunch umbrella while adding the financial incentive disparity regarding interim relief as yet one more correctional free lunch. Lastly, the comparative lens provides further support for widespread concern that criminal law is racist and classist because the financial incentive disparity tracks predictable disparities in race, wealth, and power between the civil and criminal systems

Power over Procedure

American law should better protect people\u27s bodies from being caged than it should protect people\u27s money. And yet in so many ways it does the opposite. Instead of calibrating protections for defendants to the importance of the interest at stake, disparities between pretrial protections in federal civil and criminal procedure instead track differences in race and class between defendants in the two systems. Criminal defendants, for instance, can be locked in cages for two days on a mere accusation by police before a magistrate considers the validity of that deprivation. Civil defendants, by contrast, typically cannot be deprived of their property without first having a judge hear their arguments. Criminal defendants sometimes do not learn about the government\u27s evidence until the eve of or during trial-a trial that comes in scant few cases. Civil defendants would never be forced into such a trial by surprise but rather have numerous tools of formal discovery to compel evidence from the opposing party throughout the pretrial period. This Article argues that comparing federal criminal procedure to federal civil procedure across several substantive areas provides new and valuable insight into the systemic racism and classism woven into the fabric of U.S. law. Criminal defendants are disproportionately poor people of color, while civil defendants are often wealthy corporations whose executives are largely White; those wealthy civil defendants play an outsized role in developing civil procedure. Trials are scarce in both civil and criminal procedure. But civil procedure-where wealthy White defendants are disproportionately powerful-offers significant pretrial protection for defendants that makes trials less necessary. Criminal law has also made trials largely disappear but not by affording procedural protections to defendants. Rather, criminal law made going to trial much too risky for defendants. Nonetheless, instead of recognizing the lack of trials and shifting procedural protections pretrial, criminal law continues to rest its faith on mythological trials to protect defendants\u27 rights

Promoting Democracy in Prosecution

Voters were meant to check prosecutors’ decisions, but that check has eroded because voters lack the information necessary to cast meaningful votes in prosecutor elections. Voters’ lack of an effective political check on prosecutors causes two related problems: (1) inefficient allocation of prosecutorial resources and (2) divestment of democratic sovereignty from the people. Prosecutors currently need not consider expenditures for incarceration or public defense because voters never see these costs and thus cannot hold their prosecutors accountable for them. Accordingly, these costs become an externality in the prosecutorial decision-making process, causing prosecutors to spend resources in socially inefficient ways. To reinvigorate the political check on prosecutors, this Article proposes requiring state and local prosecutors to disclose costs of all prosecuted cases and all cases not prosecuted in which an arrest was made and sufficient evidence existed. Such disclosures would sweep broadly to include prosecutors’ wages, public defense costs, and incarceration costs in cases resulting in a conviction. Voters would then have concrete, monetized evidence of prosecutorial priorities. This greater information flow would allow voters, through the ballot box, to meaningfully supervise their prosecutors’ exercise of delegated sovereign authority. Knowing that voters wield this information, prosecutors would then internalize this externality by taking these previously disregarded costs into account when they determine whether to charge crimes, what crimes to charge, and what sentences to recommend. Creating a mechanism that urges prosecutors to consider this broader set of costs would promote a more socially efficient outcome. Finally, this Article considers what an efficient allocation of prosecutorial resources might look like. It postulates that many constituencies would rather spend less on small-scale drug prosecutions to save cash-strapped state budgets

Compensation\u27s Role in Deterrence

There are plenty of noneconomic reasons to care whether victims are compensated in class actions. The traditional law-and-economics view, however, is that when individual claim values are small, there is no reason to care whether victims are compensated. Rather than compensation deterring wrongdoing is tort law\u27s primary economic objective. And on this score, law-and-economics scholars contend that only the aggregate amount of money that a defendant expects to pay affects deterrence. They say that it does not matter for deterrence purposes how that money is split between victims, lawyers, and charities. This Article challenges that claim about achieving tort law\u27s primary objective and argues that there is an economic reason to care whether victims are compensated in class actions. It offers reason to think that compensating victims deters more wrongdoing than the same amount of relief in other forms, at least in damages class actions. Put a different way, this Article contends that the primary objectives of class actions -- compensation and deterrence -- are intertwined in ways that scholars have not previously recognized. Compensation affects the amount of reputational harm that class actions inflict on defendants, and anticipating that reputational harm provides a source of deterrence. Because the public cares whether victims are compensated in civil litigation, if class actions were frequently to slight compensation that would undermine public perception of the class device; class actions would come to seem more like plaintiffs\u27 lawyers\u27 extortion mechanisms than legitimate means of redressing harm. Diminished procedural legitimacy makes the class action a less powerful signal about the validity of the underlying claims, which undermines reputational deterrence

Clientless Lawyers

Class counsel and prosecutors have a lot more in common than scholars realize. These lawyers have clients, but their clients are diffuse and lack a formal decisionmaking structure. Because of the nature of their clients, class counsel and prosecutors have to make decisions for their clients that one would ordinarily expect clients to make—and indeed that legal ethics rules would expressly require clients to make in other contexts—such as decisions concerning objectives of representation or whether to settle or plead guilty. Both complex litigation and criminal law scholars recognize that these lawyers’ self-interests diverge from their clients’ interests. But the complex litigation and criminal law literatures discuss the ensuing accountability problem solely in their own spheres. This article considers the insights about accountability that complex litigation can learn from criminal law. More specifically, the article argues that although there are real differences between the two systems, these differences do not justify the completely different approaches to accountability that the two contexts employ. Rather, the comparison suggests that internal checks within class counsel’s firm, between plaintiffs’ firms, or between third-party funders and class counsel can improve accountability, much as internal checks improve accountability within some prosecutors’ offices