Creating a Positive Police and Community Response to Homelessness

CCH policy brief that examines how police and our communities respond to homelessness, particularly homeless people on the street

ADR, the Judiciary and Justice: Coming to Terms with the Alternatives

Any discussion of recent developments in civil litigation must address the virtual revolution that has taken place regarding alternative dispute resolution (ADR). Attorneys have witnessed a steady growth in their clients\u27 recourse to ADR in place of lawsuits, and ADR is increasingly incorporated into the litigation process by the judiciary itself--in the form of court-annexed arbitration, mediation, summary jury trials, early neutral evaluation, and judicial settlement conferences. Alternative models of dispute resolution have inarguably penetrated the mainstream; the relevant question now is how they will change it. The judicial embrace of ADR presents opportunities and concerns that distinguish court-annexed programs from the broader trend of contractual ADR. Its versatile mechanisms have much to offer overloaded courts, but as ADR gains ground in the judiciary, it becomes urgent to better isolate the values of each from the other. Policymakers must carefully design judicial ADR programs to preserve the access to public adjudication that has rendered the judiciary so invaluable an institution, and they must incorporate into judicial ADR the procedural norms necessary to satisfy fundamental fairness without sacrificing the flexibility that gives ADR its force. This Part explores developments in ADR generally, with prescriptive attention to the unfolding progress of the judicial use of ADR. Section A reviews the history of the modern ADR movement, section B surveys significant developments in statutory and case law, and section C outlines the need for further procedural elaboration in court-annexed ADR

Juliana v. United States: Debating the Fundamentals of the Fundamental Right to a Sustainable Climate

This article, based on a live discussion among a panel of national experts, dissects the landmark federal climate lawsuit, Juliana v. United States, 217 F. Supp. 3d 1224 (D. Or. 2016). Juliana is the flagship case in a series of legal actions brought by youth plaintiffs challenging government failures to regulate to prevent climate change. However, few have come as far as Juliana, which has so far survived motions to dismiss from both the government and fossil fuels industry, a motion for interlocutory appeal to the Ninth Circuit to dismiss the case, and even a rare petition for writ of mandamus by the Trump Administration — all attempting to halt the case before it even reaches trial. Bill McKibben, the internationally renowned environmentalist, has called it “the most important lawsuit on the planet right now.” The case is novel not only because it takes on climate change, and not even because the primary advocates are children — direct representatives of the future generations whose rights are allegedly being foreclosed by the governance the suit challenges. More importantly, it raises several novel legal claims, involving issues of both common and constitutional law. In one line of argument, the plaintiffs apply the common law public trust doctrine, an old theory of sovereign obligation over certain common pool resources, in a new way — obligating federal action to protect the atmospheric commons. The other line of argument relies on a substantive due process theory of constitutional obligation, alleging that the federal government must act to protect the plaintiffs’ fundamental right to a stable climate. These claims have generated both interest and controversy among legal scholars. Opponents worry about their departure from established common law norms, given that the public trust doctrine is mostly applied to state action impacting water resources, rather than federal action involving air resources. Some worry about the practical impacts of the advocacy strategy and the workability of the requested remedy — which would make it the responsibility of courts to order and oversee ambitious legislative and executive activity. For others, the judicial remedy raises serious concerns about the horizontal separation of powers and the limits of sovereign authority. Others worry about the implications of reinvigorating judicial oversight of substantive due process, and the limits of unenumerated fundamental rights. Still others worry about the implications of not pushing these boundaries in the face of the looming harms associated with climate change. The article distills a scholarly conversation by law professors Erin Ryan, Mary Wood, Jim Huffman, Rick Frank, and Irma Russel, who joined to help unpack the various legal issues raised by the case (participating remotely, to avoid generating additional greenhouse emissions through air travel). A live recording of the discussion accompanies the published article online, made available to assist further classroom exploration of these issues

Spending Power Bargaining After Sebelius

In the wake of the Supreme Court’s Affordable Care Act (ACA) decision, it’s easy to get lost in debate over the Chief Justice’s stated theory of the commerce power, or what precedential effect it will have under the Marks doctrine (given that his only supporters wrote in dissent). Still, the practical implications for existing governance is likely to be small, at least in the foreseeable future. After all, much of the debate over the individual mandate focused on how unprecedented it was: despite months of trying, nobody produced a satisfying example of this particular Congressional tool used in previous health, environmental, or any other kind of federal law. By contrast, the most immediately significant portion of the ruling — and one with far more significance for most regulatory governance — is the part of the decision limiting the federal spending power that authorizes Medicaid. Congress uses its spending power to persuade states to engage in programs of cooperative federalism all the time, ranging from environmental programs under the Clean Air Act to cooperative management of the national highway system. Last month’s decision represents the first time the Court has ever invalidated a congressional act for exceeding its power under the Spending Clause, and the decision has important implications for the way that many state-federal regulatory partnerships work. This very short essay, based on a blog published in the immediate wake of the decision, offers both criticism and praise for different elements of the Chief Justice’s plurality opinion. After explaining the spending bargaining enterprise, it critiques the unprecedented and unworkable imposition the new decision creates on legislative authority to modify these bargains over time. After Sebelius, Congress can never modify a spending power program without potentially creating two tracks — one for states that like the change and another for those that prefer the original (and with further modifications, three tracks, ad infinitum). The decision fails to distinguish permissible modifications from new-program amendments, leaving every bargain improved by experience vulnerable to legal challenge. That said, the decision also exposes an important problem in spending power bargaining that warrants our attention: that is, how the analysis shifts when the states are not opting in or out of a cooperative federalism program from scratch, but after having developed substantial infrastructure around a long-term regulatory partnership

Breaking Ground on the New Green Deal

Like the old New Deal, the new Green Deal will rescue the free-falling economy by investing in infrastructure that creates jobs and repositions American industry toward new kinds of growth. In the 1930s, FDR built a national network of roads, bridges, and parks, connecting producers and consumers, enhancing national security, and protecting natural resources. Today’s mission is exactly the same, but this time the infrastructure that can accomplish it will enable alternative energy generation, storage, and transmission. Sure, we could pass tax cuts instead – but if they don’t work, we’re left with a fistful of nothing. Investing in infrastructure gets people hired to build it, and the worst case scenario at the end of the day is a tangible bedrock for future economic growth. This short commentary, published on two political blogs, praises the President\u27s pledge to invest in green energy infrastructure, and offers suggestions on how to do it. It urges reluctant members of Congress to act on the stimulus package in order to break ground on plans to invest in a renewable energy economy

Federalism at the \u27Cathedral\u27: Property Rules, Liability Rules, and Inalienability Rules in Tenth Amendment Infrastructure

As the climate crisis, war in the Middle East, and the price of oil focus American determination to move beyond fossil fuels, nuclear power has resurfaced as a possible alternative. But heady plans for energy reform may be stalled by an unlikely policy deadlock stemming from a structural technicality in an aging Supreme Court decision: New York v. United States, which set forth the Tenth Amendment anti-commandeering rule in 1992. The same dry technicality has also threatened the effective management of storm water pollution, contributed to the failed response to Hurricane Katrina, and poses ongoing regulatory obstacles in such critical interjurisdictional contexts as national security and counter-terrorism efforts. Such is the enormous power hidden in the infrastructure of legal rules, parts of which we know better as property, liability, and inalienability remedy rules. Federalism at the Cathedral explores the consequences for good governance of poorly constructed legal infrastructure in the Tenth Amendment context, and recommends a simple jurisprudential fix: exchanging a property rule for the inalienability remedy rule that the Court used to protect the anti-commandeering entitlement. Grounded in a values-based theory of American federalism, it shows how the New York inalienability rule unnecessarily removes tools for resolving interjurisdictional quagmires - exemplified by the radioactive waste capacity problem at the heart of the New York litigation - by prohibiting novel forms of state-federal bargaining. In New York, the Court held that Congress lacked the authority to bind a state\u27s participation in a regulatory scheme even if state officials had effectively waived Tenth Amendment-based objections during consensual negotiations with the federal government. In so doing, the Court articulated a reasonable entitlement to federal noninterference protected by an unreasonable inalienability rule. It is an inalienability rule, because any number of collective action problems would prevent the negotiated transfer of the entitlement except through elected representation. It is unreasonable, because the intergovernmental partnerships thus thwarted would help resolve pressing interjurisdictional problems without offending the constitution. Indeed, underlying values of federalism that give meaning to the Tenth Amendment would be better served by allowing a state to decide for itself whether to hold or trade its entitlement. Focusing on the facts and legacy of the New York decision, the Article concludes that although its inalienability rule is defensible in exclusively state or federal jurisdictional contexts, it is dubious in contexts that require regulatory attention at both the local and national level. A property rule that would enable states to bargain with their anti-commandeering entitlement would not offend the touchstone of Tenth Amendment jurisprudence, which has always been the prevention of federal coercion of the states. A pro-bargaining property rule would be more consistent with the rest of the Court\u27s federalism jurisprudence, more faithful to the full panoply of values that under gird American federalism, and better for state and federal governance in difficult interjurisdictional contexts