Jaya Ramji-Nogales

What do we learn by reading the international law of migration from the perspective of migrants from the Global South? Deftly weaving together various strands from legal and social science literature to produce a brilliant new theoretical tapestry, Usha Natarajan’s book chapter, Third World Approaches to International Law (TWAIL) and Migration, offers a relational and contextual take on that question. She suggests three new ways of understanding international law in this sphere: as a harmful relationship between control and protection; as a constructor of categories that limit contestation; and as a phenomenon destructively co-constitutive of migration. This critique lays the groundwork for her proposal to build an international law of migration that is “more expansive, evidence-based and ethically consistent . . . as advocated for by TWAIL scholars.”

TWAIL is a movement of international legal academics that coalesces around a shared critique of the Global North’s domination of knowledge production in the field. TWAILers offer a diverse set of viewpoints and methodologies, yet share a commitment to foregrounding the perspectives of the people of the Third World in international law through policy-making, practice, and scholarship. Prof. Natarajan offers the reader both a useful overview of existing TWAIL literature on international migration law and an important new framing of that work, elucidating the synergies that emerge when the range of TWAIL insights are put in conversation with each other.

Prof. Natarajan’s first analytical move sets out two separate but related categories that constitute the international law of migration: laws of control, which determine who moves and who decides who can move, and laws of protection, which focus on the treatment of migrants. The chapter emphasizes the recency and contingency of control laws, describing how international law produces and normalizes the “sovereign prerogative,” manifested in extreme deference to state authority to control the movement of migrants. These laws of control construct the migrant as a vulnerable being, necessitating laws of protection to contest that vulnerability. Prof. Natarajan highlights the futility of this project, suggesting that laws of protection may be no more than an effort to salve the global community’s conscience in the face of exploitation and abuse of migrants, and to offer migrants hope for a brighter future that never materializes. She also explains insightfully the dangerous relationship between the two sets of laws, namely that “control laws ensure that protection laws are permanently necessary but inadequate.” This relational understanding of international migration law shines an incisive, critical light on the shortcomings of the field.

The second contribution draws together several strands of the legal and social science literatures, explaining the range of ways in which international law structures contemporary understandings of migration and limits the universe of available challenges. In short, international law fails to attend to migrants’ perspectives, instead constructing binaries and hierarchical categories that are disconnected from the reasons for and results of human mobility. The law creates exceedingly narrow categories of migrants who can avail themselves of the protections of non-refoulement, which is the only exception to the sovereign prerogative of border control. International law also prioritizes political and civil rights over social and economic rights as a basis for protection, creating arbitrary hierarchies of suffering. The law’s focus on crisis rather than systemic causes of migration precludes rational and sustainable governance of migration. These criticisms have been levied against international migration law and international law in general by a range of TWAIL scholars; the contribution of the chapter is to tie them together cohesively and coherently into an overarching critique of the law. Prof. Natarajan offers an important reminder that this constrained understanding is contingent, not natural, creating space to imagine more emancipatory futures.

Finally, the chapter offers a third valuable insight, namely that migration and international law are co-constitutive, defining and legitimating each other to the detriment of migrants. In the common understanding of international law, migration is a domestic matter, and all decisions about law, policy, and enforcement are made by the state. In other words, international law constructs a sovereign world that restricts human mobility by default, thereby creating the “migrant.” Prof. Natarajan contrasts contemporary international law’s restrictions on human movement with the centrality of migration to imperialism, supported by international legal legitimation of the mass migration of settler colonials from Europe to the Global South. She links this paradox with international law’s preoccupation with mobility to the Global North, and the looming specter of “brown hordes” at the border, despite the reality that most human movement occurs within the Global South. Without the “migrant” that it has constructed, the sovereign would lose substantial existential justification, and without the sovereign prerogative, Global South people on the move might be considered humans rather than migrants.

Prof. Natarajan offers an invaluable introduction to the TWAIL literature on international migration law, as well as an insightful synthesis of that work into an original theoretical framing of the field. She foregrounds a powerful call from TWAIL scholars to work towards a “legal framework more closely attuned to why people are moving, with a view to ensuring more humane and orderly population movement.” This chapter provides scholars and practitioners with a formidable foundation to guide the struggle towards that future.

The post Beyond the Sovereign Prerogative: TWAILing Global Migration appeared first on Lex.

Aila Hoss

In its foundational Indian law decisions, the U.S. Supreme Court has consistently recognized federal supremacy on all matters regarding Indian affairs. This plenary power can preempt both Tribal and state authorities. SCOTUS granted certiorari in Haaland v. Brackeen to assess the constitutionality of the Indian Child Welfare Act (ICWA), with some of the challenges being on the basis that the law infringes on state authority under the Tenth Amendment’s anticommandeering doctrine. Indian country anxiously awaited to see if the court would once again abandon longstanding Indian law precedent in favor of state rights, as it recently did in Oklahoma v. Castro Huerta. The court concluded that ICWA was valid. But, the decision left me confounded on the continued viability of anticommandeering arguments to strike down federal Indian affairs legislation. Fortunately, Professor Ann Tweedy’s recent article, Anticommandeering & Indian Affairs Legislation, published in the Harvard Journal on Legislation, considers the applicability of anticommandeering to Indian law following Brackeen.

The anticommandeering doctrine holds that when Congress requires states to adopt or enforce federal law, such actions violate the Tenth Amendment. First articulated by the Supreme Court in the 1990s under the Rehnquist court, the doctrine has been successfully used to strike out provisions of various pieces of federal legislation including the Low-Level Radioactive Waste Policy Amendments Act (required states to take title and assume liability for radioactive waste within their borders), the Brady Handgun Violence Protection Act (required state and local law enforcement to conduct background checks on prospective gun buyers), and the Professional and Amateur Sports Protection Act (prohibited states from establishing sports gambling regulatory schemes).

Congress passed ICWA in 1978 in response to “an alarmingly high percentage of Indian families [] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and [] an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.” In custody proceedings involving an Indian child, the law provides Tribes sole jurisdiction when the child resides or is domiciled in Indian country or when the child is a ward of a Tribal court. In all other scenarios, Tribes and states maintain concurrent jurisdiction. When the proceedings are in state court, ICWA mandates substantive and procedural safeguards to ensure Tribal access to the proceedings and to prevent the breakup of Indian families. ICWA also establishes placement preferences for members of the child’s extended family; other members of the Indian child’s Tribe; and other Indian families. ICWA has led to increased Tribal participation and Indian placements in applicable child custody proceedings.

The original plaintiffs (three non-Native couples, the birth mother of an Indian child, and Texas, Louisiana, and Indiana) challenged ICWA on a variety of bases, including the nondelegation doctrine, the Equal Protection Clause, and the Tenth Amendment. In the Court’s June 2023 decision, none of these challenges proved successful, although the Court dismissed the equal protection arguments due to lack of standing, leaving room for future litigation on that issue on the merits. In the context of anticommandeering, Justice Barrett, writing for the majority (joined by Roberts, Sotomayor, Kagan, Gorsuch, Kavanaugh, and Jackson), dismissed the numerous anticommandeering arguments raised by the plaintiffs against various ICWA provisions. Professor Tweedy deftly untangles all of the arguments and the Court’s response against their application.

To summarize, the Court concluded that the anticommandeering doctrine does not apply to legislation like ICWA “that applies ‘evenhandedly’ to state and private actors.” It also found that ICWA’s placement preferences and recordkeeping requirements were not sufficiently burdensome to run afoul of the Tenth Amendment. Finally, it found that Congress can direct state courts to follow federal law due to federal preemption.

Although the anticommandeering doctrine was not successful in striking down ICWA, it could be successful in striking down other federal Indian laws. Professor Tweedy argues that the majority could have made the case against the application of the anticommandeering doctrine more simply and more broadly: “[T]he Tenth Amendment generally has no application in the context of Indian Affairs legislation, particularly where Congress has directly spoken on an issue, given Congress’s plenary power in that area.” (P. 59.) Instead, the Court took what Professor Tweedy describes as a “granular” approach the application of the anticommandeering doctrine in Indian affairs. By doing so, the Court opens the floodgates to litigation on other Indian affairs legislation.

Professor Tweedy highlights another important flaw in the majority’s discussion of anticommandeering. The Court had previously only examined the anticommandeering doctrine against federal legislation passed under Congress’s interstate commerce authority. The Court fails to consider whether the doctrine should apply in the context of the Indian Commerce Clause, part of the basis of federal supremacy in Indian affairs, the scope of which differs from that of the Interstate Commerce Clause.

The anticommandeering doctrine is not going away. But Professor Tweedy’s important work may provide a path to limit the viability of anticommandeering claims in Indian country moving forward.

The post Against Anticommandeering in Indian Law appeared first on Lex.

Cynthia Alkon

The pandemic forced courts (and every other part of society) to do things differently. These changes continue to be a gold mine for scholars as we continue to learn lessons about the impact of these changes. Professor Wechsler’s article is a wonderful example of looking at one specific area, civil protection hearings for survivors of intimate partner violence, and examining COVID-19-generated lessons that could improve the process moving forward. The article is grounded in original empirical research with survivors and legal services providers and focuses on procedural justice, empowerment, and access. Although civil protection orders are the most common legal remedy sought by survivors of intimate partner violence, this article examines how different options for filing protective order petitions and hearing participation are important to survivors.

The article is based on two complementary and original empirical studies. The first is a survey of intimate partner violence survivors in New York City family courts who sought protective orders during the pandemic. Notably, 85% of participants were women of color, ensuring that the study centers the voices of those disproportionately impacted by intimate partner violence but who are often marginalized in policy debates. The second was a survey of legal services providers nationwide, documenting changes in protective order procedures before, during, and after the pandemic restrictions. Methodologically, this dual approach gives the article both depth and breadth with rich qualitative accounts from survivors themselves, combined with a broader procedural landscape from practitioners’ perspectives. Importantly, Professor Wechsler builds on prior scholarship without duplication, providing new empirical insights.

Professor Wechsler’s key findings included comparing in-person vs. virtual hearings. She found that whether survivors preferred in-person or virtual hearings was driven by individual safety concerns, technology access, and perceptions of fairness. She found that virtual hearings can reduce barriers for some survivors (due to transportation costs, childcare needs, and risk of encountering the abuser in person) but can disadvantage others (due to those lacking private space or fearing reduced credibility before the court). She found that many jurisdictions returned to pre-pandemic practices, eliminating virtual options, despite their benefits to certain groups.

By introducing a statutory framework of “accessible process pluralism,” Professor Wechsler not only critiques going back to pre-pandemic practices but also charts a realistic, implementable path forward—one that balances fairness, safety, and empowerment. This framework would allow survivors to choose the method of filing and hearing participation. It would require judges to honor these preferences absent good cause. And it would integrate accessibility features that reduce procedural burdens on pro se petitioners, who constitute the majority of protection order seekers.

This article’s reach is broad and practical. Professor Wechsler offers judges, court administrators, and advocates data-driven reasons to adopt procedural flexibility. She gives legislators a statutory blueprint ready for implementation. For legal scholars, it contributes to the literature on access to justice by demonstrating how procedural flexibility can be systematically embedded into statutes to promote fairness and efficacy. Its conceptual framing — linking process pluralism to empowerment theory — enriches both fields and provides a transferable model for other contexts where litigants face significant barriers to participation.

This article is a deep dive into an important area and a powerful argument of why courts should move away from “one size fits all” processes, while giving concrete recommendations on how to make a flexible process approach work for one often disadvantaged and disempowered group.

The post A Lesson from the Pandemic: Moving Beyond “One Size Fits All” in Protection Order Processes for Survivors of Intimate Partner Violence appeared first on Lex.

Ian Stephens

Textualism confounds the linkage between jurisprudential methodology and philosophy. In popular conception, a judge’s choice of interpretive tools is bound to be tightly intertwined with the ideological flavor of that judge’s outcomes: originalism or strict constructionism lead to conservative results, while living constitutionalism or purposivism lead to liberal results. Textualism, once pilloried as a tool of the right, is now making a play at escaping that perceptual mold. As the methodology has become more and more ubiquitous, it has taken on a new character. It now boasts of broad acceptance throughout the judiciary and even such conservative paragons as Neil Gorsuch and Clarence Thomas have sometimes followed textualism toward what might seem rather progressive outcomes. Muldrow v. City of St. Louis,¹ decided last term, is sure to join cases like Southwest Airlines v. Saxon, New Prime v. Oliviera, and the quintessential Bostock v. Clayton County in the pantheon of progressive textualism.

Missouri’s Sandra Sperino makes this point in her forthcoming article, When is Discrimination Harmful?, where she explores Muldrow’s dominating use of textualism to drastically expand the reach of employment discrimination laws. But, in its quest to excise subjective applications of Title VII, the Muldrow Court opened just as many doors as it closed—leaving lower courts to struggle with applications that are no less subjective than the standard Muldrow abandoned. What’s the root of this inextricable challenge? Sperino posits that the concept of “harm,” a foundational component of anti-discrimination law, inevitably “rests on judgments that cannot be answered through the statutory text alone.”

Muldrow concerned the transfer of a St. Louis police sergeant to a less prestigious and subjectively rewarding position because of her sex. Most circuits had held that transfers without a change in rank and pay like this do not constitute “harm” within the meaning of Title VII. Instead, actionable harm must rise to the level that it is “materially adverse” to the plaintiff. Muldrow rejects that standard, offering instead that the plain text of Title VII requires nothing more than a showing of “some harm.”

But, Professor Sperino and others, myself included, have noted that “some harm” is hardly more definite than “materially adverse.” The new standard is certainly lower, but how much lower is not clear, and the statutory text seems insufficient to reveal the answer. My own take on Muldrow would look beyond the text toward corresponding legal conceptions of harm.

Professor Sperino agrees. But from Muldrow she offers a more universal approach. Title VII, she suggests, was designed to be broad—and even ambiguous in parts—so as to leave room to “strike at the entire spectrum” of discrimination. The some-harm standard demonstrates this malleability. So, while textualism can answer some of the questions Title VII poses, stopping there leaves the job only half done. Taking the next step further, courts should look to the history and purpose of Title VII for answers.

In many ways, the modern approach to statutory interpretation, that leaves extraneous sources and policy off to the side, is superior. Done right, it avoids the manipulation, bias, and subjectivity that an open universe can introduce. But one of its biggest pitfalls is that past Congresses often wrote laws with the assumption that courts would look more broadly at the law’s history and purpose. In the case of Title VII, Sperino explains, this meant Congress wrote open-endedly—expecting that courts would apply the law as needed to strike broadly against discrimination. Indeed, many of the core tests courts apply to Title VII were developed by reference to its objective, not its text.

Sperino makes a compelling case for a more comprehensive approach to discrimination law. In fact, I might even go a step further to argue that Title VII and its sister-statutes double as one of a class of background statutes that provide context to the law more broadly. As courts grapple with the unanswered questions Muldrow left, they should take Professor Sperino’s lesson that those questions are supposed to be there. And they should take heed that answers exist, not just in the statute’s text, but in its character.

The post New Standards, New Questions, and Old Answers appeared first on Lex.

Marco Jimenez

Whenever I teach remedies, one of the first principles we cover is that compensatory damages should put the plaintiff in their “rightful position” by returning the injured party to the position it would have occupied but for the defendant’s wrongful harm. Students quickly grasp this concept and its corollary, which I sometimes refer to as the “Goldilocks principle”: courts often try to award the amount of damages that is “just right”—neither too much (creating an undeserved windfall for the plaintiff) nor too little (leaving the plaintiff undercompensated). Anything that makes a plaintiff better off than before the injury seems obviously problematic.

In his outstanding article Making Whole, Making Better, and Accommodating Resilience, Professor Erik Encarnacion challenges this conventional wisdom in ways that are both intellectually sophisticated and practically important. The piece makes a compelling case that reflexive avoidance of any “betterment” often leads to systematic undercompensation, and that a more generous approach to compensatory damages is not only doctrinally supported but normatively required.

Three Arguments Against Anti-Betterment Orthodoxy

Encarnacion’s argument unfolds through three interconnected claims. First, he demonstrates that courts already permit compensatory awards resulting in material betterments more frequently than conventional wisdom suggests. Cases like Burr v. Clark illustrate this point: when a repair technician accidentally destroyed the plaintiff’s old, malfunctioning water boiler, the court awarded the full cost of a new replacement without any depreciation offset. The plaintiff clearly received a “betterment”—a new boiler for an old one—yet the court refused to treat this as an unjust windfall. Encarnacion argues that this outcome exemplifies how existing doctrine permissibly accommodates such betterments, particularly when strict adherence to pre-injury value would be “inequitable or inappropriate,” a standard recognized in Section 9 of the forthcoming Restatement (Third) of Torts: Remedies. (P. 1357.) Encarnacion further notes that the Restatement explicitly recognizes this broad standard, encompassing situations where benefits are “thrust upon” plaintiffs, are not readily convertible to cash, and are unwanted, or when the plaintiff was “already entitled” to the benefit. (Pp. 1357-59.)

Second, and more provocatively, Encarnacion argues that such betterments are not merely exceptions to the make-whole ideal but can even be required by it. His key insight is that compensatory damages are fundamentally “substitutional”—they aim to provide reasonable substitutes for losses rather than perfect restoration. As he explains, “reasonable or next-best substitutes may in some respects be better than the thing being substituted for along some significant dimensions, even if not in all dimensions preferable to the original. That is just part of what it means for something to be a substitute.” (P. 1374.) He elaborates that the goal is often to restore the lost “use value” of property to the owner—its value for its intended purpose—rather than strictly its market value, with any market betterment being an incidental byproduct of fully restoring that use value. When the best available substitute necessarily involves some improvement, courts should focus on providing adequate substitutes rather than mechanically avoiding any betterment.

Third, Encarnacion introduces the genuinely original concept of “resilience interests”, arguing that victims have compelling interests not just in recovering from setbacks, but in “bouncing back better” in the aftermath of wrongdoing. (See Part IV, Pp. 1383-92.) These resilience interests deserve recognition in tort law, even when accommodating them results in material betterment.

The Power of Substitutional Thinking

What makes this article so compelling is how it reframes familiar problems through concrete examples that expose hidden assumptions. Consider Encarnacion’s “Coffee” hypothetical: you negligently bump into me, causing me to spill my homemade coffee. Being decent, you offer to buy me a replacement coffee from the pricey corner shop—the only reasonably available option. The replacement turns out to be more expensive, more voluminous, fresher, and tastier than my home brew. I’m clearly better off. But here’s Encarnacion’s key insight: it would be unreasonable for you to later send me an invoice seeking the difference between what you bought and what I lost. As he puts it, seeking such reimbursement would mean you are “seeking to retroactively force me to help pay for an improvement of my holdings—more and better coffee—that I secured only as a result of your negligence.” (P. 1378.) The substitutional framework reveals that when the only adequate substitute happens to be superior, basic fairness suggests the wrongdoer should bear the full cost rather than forcing the victim to finance their own improvement.

This insight has profound practical implications. A homeowner whose kitchen is destroyed might reasonably choose energy-efficient appliances as part of recovery, or a business whose computer system is damaged might upgrade to more secure technology. Rather than viewing such choices as opportunistic, Encarnacion’s framework sees them as legitimate aspects of obtaining adequate substitutes for what was lost.

Resilience as Innovation

Perhaps the article’s most innovative contribution is the introduction of resilience interests into remedial theory. Encarnacion persuasively argues that tort law should accommodate a victim’s interest in building back better. This psychological and moral dimension of recovery has been largely ignored in traditional remedial analysis, yet it captures something deeply important about how humans experience and respond to wrongdoing.

The concept of resilience provides a principled foundation for allowing victims to undertake reasonable improvements as part of recovery. It recognizes that sometimes the most effective way to restore a victim’s sense of security is to allow them to emerge stronger than before, and that requiring wrongdoers to bear reasonable costs of this process serves important values. Importantly, Encarnacion acknowledges that “not every betterment is justifiable” (P. 1344); a minor injury should not lead to a multi-billion-dollar verdict simply because it would make the plaintiff better off. He suggests that unreasonable betterments are less about concerns for “windfalls” or “unjust enrichment” and more about whether they are “punitive or unjustly exploitative” of the defendant. (P. 1344.) His analysis in Part V provides important limits, suggesting that while proportionality and the so-called “duty” to mitigate damages are relevant, they aren’t the full story; instead, courts should guard against betterments that manifest punitive behavior or constitute ex post exploitation. This nuanced approach makes his argument for allowing betterments even more robust.

Conclusion

By challenging reflexive hostility toward any form of betterment, Encarnacion provides courts and practitioners with tools for reaching more generous and fairer results. His analysis suggests that judges should be more skeptical of defendants’ claims for depreciation offsets and more willing to award plaintiffs the full, reasonable costs of repair or replacement, even when some betterment occurs.

Making Whole, Making Better, and Accommodating Resilience takes what seemed like settled remedial law and reveals its hidden depths and possibilities. For remedies scholars, this piece offers fresh ways to think about compensation and restoration. For practitioners, it provides powerful theoretical support for arguing that clients deserve adequate substitutes rather than bare-bones compensation. For judges, it offers a more principled approach to remedial decision-making.

This article should be read by anyone interested in tort theory, remedial philosophy, or the intersection of law and human psychology. It represents exactly the kind of scholarship that makes legal academia worthwhile—challenging settled assumptions and revealing new possibilities in familiar terrain. I, for one, look forward to exploring Encarnacion’s insights with my Remedies students, confident that rethinking what it truly means to provide adequate compensation will enrich our understanding of one of the law’s most fundamental goals.

The post Rethinking the Make-Whole Principle appeared first on Lex.

Eric Biber

America will probably be using a lot more electricity in the very near future. Demand will increase due to data centers for artificial intelligence, as well as electrification that is a central part of decarbonizing the American economy such as continued adoption of electric vehicles and electrification of home heating and cooking. But increased demand for electricity creates a problem. It will require an expansion of our electricity transmission network, a system that was designed for much lower levels of electricity usage. Moreover, the restructuring of electricity markets in much of the US starting in the 1990s is requiring more transmission capacity because of the integration of electricity generation and demand on a much larger scale than in the day when most electricity was generated and used within the service area of a single public utility. Greater extreme weather events because of climate change will increase the demand for electricity and also increase the risk of failures in the transmission system – larger transmission systems can provide resilience for these situations.

But the process for constructing new US transmission systems is broken. The US has built a fraction of the miles of high-voltage transmission lines that are required to meet our future needs. Building on prior work that has helped identify the problem, Joshua Macey and Elias van Emmerick’s article provides two key contributions. First, they show how the current system incentivizes the construction of transmission projects that do not benefit the grid as a whole. Second, through a thorough analysis of the existing powers of the Federal Energy Regulatory Commission (FERC) and the Department of Energy, they identify a range of legal authorities that those agencies could use to address the problems already identified through administrative action – providing a potential roadmap for at least starting to work on our need for more transmission.

It’s not as if we aren’t spending money on transmission, as Macey and van Emmerick note. The problem instead is that the money we do spend is not spent on projects that would actually benefit the grid overall. Nor do we spend that money to facilitate bringing a range of new generation resources online, including renewables. The authors document how the current system by which we decide which lines get built, and then get paid for by electricity consumers, is broken. In theory that system should facilitate the independent identification of where transmission would most benefit the electric grid, and consumers, as a whole, get it built through a competitive bidding process, and then allocate the costs of construction among those who would benefit.

In practice, utilities use loopholes to avoid competitive bidding, so that they construct the lines themselves, and then recoup the costs of that construction through charges to consumers. Utilities also use loopholes – especially for local or small projects – to avoid state approval requirements or regional transmission planning processes and construct lines that provide limited or no benefits to the stability of the overall grid, or to the facilitation of new generation (including renewable energy), but instead benefit the incumbent utility’s own generation resources and exclude competition. Finally utilities use their influence over regional transmission organizations to control what kinds of projects are approved, and to develop the rules that allow utilities to avoid planning and competition.

Just describing these phenomena would be a helpful contribution. But Macey and van Emmerick comb through the provisions of the Federal Power Act, plus other authorities for the Department of Energy, to identify powers that FERC and DoE could use to close loopholes, force better governance at regional transmission organizations, and reduce state and local obstacles to siting. Most of the changes they propose do not necessarily require legislative action – though Congressional action might reduce the risk that what they propose would be overturned in court.

As with any proposal for administrative or regulatory action as a substitute for Congressional inaction, there are challenges. Some of their proposals call for relatively aggressive interpretation of statutory authorities by FERC and DoE – such an effort might run afoul of a Supreme Court that has been more aggressive in patrolling agency statutory interpretation after the Court overturned Chevron and has developed the major questions doctrine. And all of their proposals presume an administration that is interested in thoughtful and effective engagement in expanding transmission. The evidence that this administration has such a position is . . . pretty thin. Thus, their proposals may have to wait for a future administration. But even so, their analysis is important – while delays in expanding our transmission system will be costly, delayed action is better than inaction. Moreover, it is unlikely that Congress will be substantially changing these authorities in the near future.

While these reforms may seem deep in the weeds of energy law, they have real implications for environmental law. Decarbonizing the American economy will require significant increases in electrification, and that in turn requires tremendous expansion of our transmission system in a way that will produce greater reliability and greater access for a wide range of zero-carbon energy sources (solar, wind, nuclear, geothermal, and more). Transmission reform is a necessary condition for decarbonizing. Macey and van Emmerick have given us a roadmap for starting that process.

The post Solving our pressing need for more electricity transmission appeared first on Lex.

Tom Simmons

Since 2022, voters in both Nevada and New York have overwhelmingly approved state constitutional amendments characterizing age as a protected class. As a result, a host of age-based policies and practices may soon become legally impermissible there. If the enactments in those states are part of a trend, the scrutiny on classifications based on adults’ chronological age will only intensify.

Nina Kohn’s Ageless Law ought to be required reading for any Elder Law class. It constructs a comprehensive intellectual scaffolding on which all the different sorts of age-based classifications and justifications thereof are strung. “Policies that differentiate based on older age are so common in modern America that they are often treated as unremarkable,” (P. 7) she observes. Excavating that which may have become unremarkable is an important and often overlooked academic enterprise. Professor Kohn undertakes this enterprise with remarkably sensitive concision.

First, she notes, “When age-based policy is discussed, it is often assumed that those policies benefit older adults” (P. 8). Not so. Age-based rubrics are commonplace in allocating government benefits based on age (e.g., Social Security), but they also appear in the form of interventions to address abuse and exploitation, tax breaks, mandatory retirement ages (e.g., for judges) and in the allocation of healthcare resources – both affirmative and negative.

During the COVID epidemic, for example, older adults were prioritized for preventative care such as scarce vaccines. At the same time, some states adopted triage standards which deprioritized older adults for curative care interventions like respirators. Older patients face de-prioritization barriers in other contexts as well. The United Network for Organ Sharing, a nonprofit network which contracts with the Department of Health and Human Services, assigns priority scores for organ transplants based, among other factors, on age.

After outlining the various forms of age-based classifications, Professor Kohn excavates the policy justifications for them. One primary reason we discriminate based on age is that it is so easy to do so. An individual’s chronological age is much cheaper to determine that the individual’s vulnerability, frailty, or maturity indexes. But age is almost always a proxy for something else and often a poor one at that.

Interestingly, another policy justification for age discrimination is the promotion of egalitarianism. But depending on the context, it may be invoked to favor the old, favor the young, or even to argue that individuals ought to be treated with equal degrees of favoritism without regard to their phase in life (a “temporal egalitarianism”).

Thus, the “fair innings” theory coined by John Harris avers that younger adults should be prioritized via age-based rationing since older people have already had more opportunities (fair innings) than younger people.¹ If rationing is to be based upon projected life span, it follows that those with more life to live ought to be favored since allocating more resources to them will achieve greater impact. The theory assumes that older individuals have “taken” more than younger individuals—which is true to a certain extent insofar as the consumption of fossil fuels, nutrition, and other consumables.

On the other hand, favoring older adults finds justification on the ground that the old are more deserving. The “fair deserts principle” says that pro-elderly policies recognize that old age is a sort of “earned status” (P. 21) – an idea posited by Douglas Nelson.² The idea here is that during adulthood, one contributes to society. The longer one has lived, the more they have given to others. In old age, those still living ought to be repaid.

Yet this raises the question of why exclude those adults who die prematurely from the scope of repayments. Kohn says, “Old age is not an equitably allocated resource” (P. 28). Many adults never become older adults, whether because of illness, accident, or violence, and statistically speaking, those of higher socio-economic status live longer than the less privileged. Prioritizing older adults might be simply rewarding those for having won the life expectancy lottery, which seems a poor justification for chronological-ism.

Finally, Kohn highlights the potential ramifications in states which recognize age as a protected class under their constitutions. Louisiana has long recognized age as a protected class, but its constitution’s text and the jurisprudence applying it essentially only applies a rational basis level of scrutiny to government-enacted age classifications. The impact of New York and Nevada’s recent enactments are less certain.

Kohn considers whether heightened scrutiny will be applied both to private actors and local government classifications. She also unpacks the disparate impact theory and analyzes whether states are likely to restrict their new constitutional age-classification protections to disparate treatment (intentional) discrimination.

Whether age can or should be used as a classification system for older adults depends in large measure on alternative rubrics. Age is a very imprecise proxy for need, vulnerability, or cognitive decline. Alternatively, for example, a sorting mechanism could be employed which scores an individual’s vulnerability to a specific problem such as financial exploitation. The “vulnerability theory” articulated by Martha Finman would target resources based on vulnerability rather than age.³

Certainly, alternative classification rubrics to age such as vulnerability would be more costly to administer than age-based classifications. But the benefits associated with reducing chronological-ism would include both more efficient allocations and a reduction of the associated ageism which government-mandated age-based classifications inevitably endorse. Kohn’s article contains a wealth of additional points and considerations. It helps us understand why we discriminate based on age and to ask whether – and in what contexts – we still should.

The post Calibrating the Convenience and Constitutionalism of Chronological-ism appeared first on Lex.

Felix Mormann

It is all but impossible for government to adopt industrial policies and regulations without creating winners and losers. The Obama administration’s support, for example, turned Tesla, SolarCity, and other cleantech ventures into regulatory winners, while its “war on coal” relegated fossil fuel companies to regulatory losers. The first Trump administration sought to reverse this trend by dialing back clean energy policies and using emergency powers to prop up the nation’s ailing coal industry. And the regulatory pendulum has continued swinging back and forth during the Biden presidency and under Trump 2.0. When changes in policy and regulation interfere with corporate interests, regulatory losers are quick to call foul and demand compensation for their regulatory burdens. But what about those who find themselves on the losing end not by virtue of regulatory activism and change but, rather, due to a persistent lack of regulation? In his excellent new article, Compensating Regulatory Losers, professor Todd Aagaard asks this provocative question and develops thoughtful answers drawing on case studies from climate and energy regulation, among others.

A robust literature grapples with the question of whether and when regulatory losers deserve to be compensated. Some have attempted to frame and answer this question based on the welfare impacts of regulation, while others have turned to (other) notions of fairness in search of answers. Some scholars advocate for replacing regulation-specific compensation with more comprehensive redistribution programs carried out via income taxes. Libertarian entitlement theorists, meanwhile, argue that regulatory losers should be compensated when their reliance expectations are thwarted by changes in regulation. And if fairness arguments do not sway you, leave it to economists to reframe the debate along Pareto and Kaldor-Hicks efficiency metrics.

In Compensating Regulatory Losers, professor Aagaard thoughtfully engages with the major strands of the compensation literature, offering a tailored critique to each of them. In response to calls for comprehensive redistribution in lieu of compensation, for example, Aagaard reminds readers that “[r]egulatory fairness is not a fungible concept that can be aggregated across all policies and delegated to the tax system. To the contrary, the fairness of regulatory outcomes depends on the context in which they arise.” (P. 578.) Similarly, he critiques entitlement and reliance arguments as circular because “[c]hanges in regulation create reliance interests only to the extent that regulatory changes should be treated as unforeseeable, which in a democracy they are inherently not.” (P. 579.) Aagaard’s biggest gripe, however, is with the status quo bias that he finds pervasive throughout the compensation literature: “None of these approaches provides a framework for addressing injustice in the status quo, despite a history that is replete with unfairness.” (P. 583.)

To remedy this oversight, Compensating Regulatory Losers proposes a two-pronged approach. The first prong expands the field of inquiry beyond the consequences of regulatory activism and change to also include “unregulatory consequences” defined as “regulatory outcomes that result from the extent to which regulation does not completely prevent the regulated harm—that is, benefits and burdens as measured against a baseline of completely effective regulation.” (P. 585.) Aagaard convincingly argues that virtually all regulatory measures simultaneously create regulatory consequences (e.g., the compliance burden imposed on the regulated entity) and unregulatory consequences (e.g., the burden suffered by allegedly protected parties from residual harms not mitigated by the regulation). Drawing on evidence from the Clean Air Act, the Occupational Safety and Health Act, and the Consumer Products Safety Commission, the article illustrates the prevalence and magnitude of such unregulatory consequences, juxtaposing the positive impact of these policies and regulations with continuing fatalities from persistent air pollution, unsafe workplaces and consumer products. The dual effect of regulation – regulating some firms, behaviors, and/or harms while leaving others unregulated – leads Aagaard to conclude that “[a]ny even-handed consideration of the consequences of regulation, therefore, must include both regulatory and unregulatory benefits and burdens.” (P. 590.)

Professor Aagaard is no compensation hawk. If anything, he cautions against rushing to compensate for regulatory losses, especially when those losses might be offset by unregulatory benefits, such as when regulation prohibits certain behavior and mitigates a certain type of harm but leaves other behaviors and harms unabated. Furthermore, there is an intertemporal dimension to consider. In the author’s words, “[t]oday’s regulatory burdens are yesterday’s unregulatory benefits.” (P. 595.) Put differently, why should a manufacturer of children’s toys be compensated for regulation banning the use of toxic substances in toys without also considering compensation for children and their families for their previous unregulatory burden (when toys were still permitted to contain the now-banned toxic substances)?

The second prong of professor Aagaard’s approach relies on the principles of distributive fairness and corrective fairness to answer this pivotal question. The article’s conception of distributive fairness “requires mitigating regulatory impacts that exacerbate existing entrenched systemic inequalities” (P. 598) as opposed to regulatory losses perceived as unfair by a few regulatory targets compared to their status quo before the regulation. Aagard acknowledges but is untroubled by the fact that, under this conception, “the circumstances in which distributive justice requires compensating regulatory burdens ought to be quite rare.” (P. 597.) In fact, he crafts a similar argument on the basis of corrective justice; in his view the premise of corrective justice to restore equilibrium after an alleged wrongdoer’s conduct is nearly impossible to apply to regulatory intervention as no such prior equilibrium exists when the “victim” of regulation was previously allowed to harm and thus victimize others. All of this leads the author to conclude that “the vast majority of regulatory burdens are not unfair in a way that requires compensation.” (P. 607.)

I highly recommend Compensating Regulatory Losers is an immensely entertaining and thought-provoking tour de force through the complex and conflicting compensation literature. Professor Aagaard’s introduction of the concept of unregulatory consequences into the conversation may ultimately raise more questions than he can answer (for now). But isn’t that the mark of truly transformative thinking and scholarship?

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Bethany Berger

Much of the history of federal Indian policy is a story of failed attempts to make Native peoples give up what makes them distinct. The complement of this history is the way Native peoples resisted each of these attempts, often using the implements of federal policy in doing so. Failure of U.S. treaty negotiators to recognize differentiation between tribal groups led some Native peoples to develop centralized political structures to coordinate their response. The devastation of federal boarding schools created a generation of Native people who formed the Society of American Indians, the first modern pan-Indian advocacy group, and communicated their resistance in ways familiar to non-Native policymakers and the public had to acknowledge. Mid-twentieth century relocation of Native people from their tribal homelands into American cities brought together people from many tribes to unite against Termination Policy. This is not a triumphal history—many lives, lands, and lifeways were lost in the process. But it underscores the ways that Native people have transformed the tools designed to destroy them to survive and fight back.

In Courts of Indian Offenses, Courts of Indian Resistance, Professor Fay adds to this history. She examines how Native people transformed the Courts of Indian Offenses created by the Department of Interior in the late nineteenth century. Interior created these courts for the express purpose of “civilizing” the Indians, directing them to punish the practices of medicine men, plural marriage, religious dances, and other “heathenish rites and customs.” Although their judges were tribal members, local federal agent appointed these judges and could remove them. Most tribes have now replaced these courts, and the old rules criminalizing tribal culture no longer exist. But five such courts still exist, serving sixteen tribes; their judges are still appointed by the federal government, and their current title, “CFR Courts,” reflects the federal regulations that govern them.

This history reached the Supreme Court in Denezpi v. United States, 596 U.S. 591 (2022). Denezpi considered whether a federal prosecution of a man that the Southern Ute Tribe’s CFR Court had already prosecuted violated the Double Jeopardy Clause. The majority of the Court held that it did not, relying on the dual-sovereignty doctrine to hold that because the federal and tribal laws criminalizing the conduct were “defined by separate sovereigns” the two courts “proscribe separate offenses.” Id. at 599. Justice Gorsuch, however, joined by Justices Sotomayor and Kagan, dissented, using the blatantly colonizing federal origins of the courts in support of a conclusion that CFR Courts prosecuted federal crimes. Id. at 612 (Gorsuch, J. dissenting).

Professor Fay examines archival records of these courts to argue that they were in fact “a means of maintaining tribal self-government by accommodating the assimilationist designs of federal bureaucrats.” Almost none of their convictions, she shows, were for the “heathenish” crimes they were created to police. The need to select judges with authority in tribal communities meant that the judges did not necessarily embrace assimilationist goals. More than one, for example, had multiple wives, although not being a polygamist was one of the few qualifications for such judges, and polygamy itself was one of the few crimes they were intended to police. Although the courts were created at the height of the assimilationist era in federal Indian policy, Professor Fay argues that compulsory education and military intervention played far larger roles in suppressing Indigenous tradition.

Of course, little of this history is new. As Professor Fay notes, the 1928 Merriam Report, The Problem of Indian Administration, noted the courts’ departure from federal commands in favor of local norms, William Hagan thoroughly plumbed this history in William Hagan’s Indian Police and Judges: Experiments in Acculturation and Control (1966), and an amicus brief in Denezpi of Federal Indian Law Scholars and Historians that I participated in summarized this history as well.

But Courts of Indian Offenses, Courts of Indian Resistance is the first standalone history of the courts since Hagan’s, and as Fay notes, Hagan regarded the courts as “vanguards of a more highly developed civilization.” Fay, quoting Hagan at 168. Fay further places the history in conversation with scholarship in other fields, including subaltern studies, the history of the administrative state, and Michael Lipsky’s examination of street level bureaucrats. Fay also painstakingly compiles available data regarding the courts to show exactly how few of their cases fell into the categories the Department of Interior sought to punish. Out of 1565 cases reflected in federal records, she finds, only 2 concerned dances or feasts, 28 concerned plural marriage, and 14 concerned medicine men. She also provides case studies of the Yakama, Pima, and Standing Rock Sioux courts. As Fay notes, the absence of prosecution of religious dances at Standing Rock is particularly significant because federal efforts to suppress the Ghost Dance there contributed to the 1890 massacre at Wounded Knee.

It is the case study section of the article that I hope Professor Fay will expand as she finalizes the article. Although the Pima case study includes tantalizing hints of the intersection of prosecutions with community politics, otherwise the article has few examinations of the actual cases the courts decide or the particular judges who decided them. Nor does it currently engage in the broader history and cultures of the three Indigenous communities she examines, which is important in understanding the roles of the courts in those communities. It would also be useful to consider the relationship between the courts and contemporary tribal courts; although few CFR Courts exist today, many present-day tribal courts had their origins in Courts of Indian Offenses. I hope to see more of that kind of examination in the published work.

But the article already makes an important contribution as a modern archival examination of failed efforts of assimilation. This kind of history is particularly relevant now, in the face of unprecedented efforts to destroy existing norms and institutions of the rule of law. May the example of tribal people, who took a tool intended to destroy them and used it to continue their traditions, inspire us in the days ahead.

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Jaya Ramji-Nogales

What would a theory of migration that takes seriously the lived expertise of migrants and their families contribute to the scholarly conversation? Drawing from extensive qualitative interviews in Mexico with community members who journeyed to the United States to seek work and those they left behind, Prof. Ragini Shah has a compelling answer: a theory of migration as extraction. The thesis of her new book, Constructed Movements: Extraction and Resistance in Mexican Migrant Communities, builds on prior work on decolonizing migration and migrations as reparations, evolving those critiques into a comprehensive theory of migration.

This brilliant new work begins with the voices of migrants themselves, offering insightful quotes and a firsthand understanding of the journey to El Norte and its impact on individuals, families, and communities. One of the invaluable contributions that this qualitative work offers is a clear description of the emotional cost of migration as extraction. The interviews provide powerful insights into this profound price that families paid and continue to pay, and the ongoing impacts on migrant communities. Prof. Shah describes a vicious cycle of dispossession, dismemberment of family relations, and exploitation, as well as a story of agency on the part of migrants.

Prof. Shah takes these lived expertise interventions seriously, not only for their individual perceptions, but also as a blueprint for the policy and theory contributions of the book. From the insights of her interviews with migrants and the loved ones they leave behind, Prof. Shah builds a comprehensive theory of migration as extraction. She provides the reader with invaluable historical context, describing the political economy dimensions of this migration, offering a structural framework to understand the exploitation and profound harms these families have suffered as part of a broader pattern imposed on migrant-sending countries by migrant-receiving countries. In particular, the book explains the role of global economic inequality and neocolonialism in constructing migration as extraction, dividing this phenomenon into three phases: dislocation, displacement, and entrenchment.

For the dislocation phase, Prof. Shah describes the uprooting of migrants in search of sustenance and the separation of families. Connecting the interviews with global neoliberal mandates, she explains how the International Monetary Fund’s policy of structural adjustment and the North American Free Trade Agreement profoundly weakened the public infrastructure in Mexico, driving down wages and dismantling access to education, two key factors that push families to migrate. For the displacement phase, Prof. Shah examines the process of labor recruitment and incarceration as well as the turn to coyotaje. She presents a timeline that delves deep into history, from Spanish colonization to the bracero programs to the maquiladoras, to provide a comprehensive description of the extractive nature of migration. For the entrenchment phase, Prof. Shah highlights the disinvestment cycle, family disintegration, and the remittance industry, explaining these phenomena and the role they play in perpetrating ongoing cycles of extractive migration.

These three phases are invaluable in describing the phenomenon of migration as extraction, and also lay a foundation for potential responses, examples of, and possibilities for resistance. Prof. Shah highlights the importance of the return of resources, local employment, and the repair of relationships with kin and land, a response that she describes as “the right not to migrate.” This right centers human autonomy, contesting the economic conditions at home that divest migrants of the choice to move. In particular, the lack of infrastructure, the lack of support for agriculture, and the lack of access to education are key problems that require investment in order to uphold the right not to migrate and to dismantle the phenomenon of migration as extraction. To this end, Prof. Shah highlights the importance of group-based resistance, drawing from the insight offered by one of her interviewees, Don Santos:

People think that migration is a benefit, but we don’t have anything in my pueblo. If we can get good work [in the United States], we can build a house for ourselves, buy clothes, a car. But it does nothing for the whole pueblo.

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