Federal Courts
A Tale of Two Climate Cases
**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.** In July 2004, eight states, the City of New York, and a number of conservation organizations filed suit against several of the nation’s largest electric power producers, alleging that the power companies’ greenhouse gas (GHG) emissions contributed to the public nuisance of global warming under federal common law. Simultaneously, several of the same states sued the U.S. Environmental Protection Agency (EPA), alleging that GHG emissions constituted “pollutants” subject to regulation under the Clean Air Act (CAA). Both cases sought to impose GHG emission controls, and both were a reaction to the federal government’s steadfast refusal to adopt such policies on its own. Although the cases raised different legal arguments, their fates were intertwined. It was well understood that prevailing in one case would likely preclude victory in the other. Indeed, the point of parallel litigation was to make it more difficult for industry and the EPA to stave off action. The EPA had determined GHGs were not subject to regulation under the CAA. If that were so, the states argued, the CAA could not preclude common law-based claims against GHG emissions. Thus, when the states prevailed in Massachusetts v. EPA and the Supreme Court declared that GHG emissions “fit well within the Clean Air Act’s capacious definition of ‘air pollutant,’” the outcome of American Electric Power Co. v. Connecticut (AEP) was all but assured.
AEP v. Connecticut and the Future of the Political Question Doctrine
**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.** Whether and how to apply the political question doctrine were among the issues for which the Supreme Court granted certiorari in American Electric Power Co. v. Connecticut (AEP). This doctrine holds that federal courts should not resolve certain kinds of claims better left to other branches. Here, the question was whether the doctrine barred review of plaintiffs’ federal common law claims for climate change. The Court, however, declined to engage the issue. Nonetheless, this Essay argues that the doctrine is still very relevant in the context of common law causes of action for climate change, and does so in three parts. Part I briefly explains the doctrine’s historical backdrop, observing the limited extent to which it has been applied. Part II explains the role that the doctrine played in AEP and that the Court declined to address the issue directly. Part III discusses the implications that AEP may have on the doctrine going forward.
AEP v. Connecticut’s Implications for the Future of Climate Change Litigation
**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.** In American Electric Power Co. v. Connecticut (AEP), the Supreme Court held that “the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.” This set of commentaries explores several of the interesting and controversial issues that the opinion addresses (or largely sidesteps). These essays analyze the complexities of the context in which the core displacement holding takes place, the opinion’s environmental justice implications, its interaction with current standing doctrine, the political question doctrine issues briefed in the case but not addressed in detail by the decision, and common law nuisance actions as an approach to addressing climate change. My commentary situates these essays in relation to one another and adds to this dialogue by considering the decision’s implications for the future of climate change litigation in the United States.
Climate Justice and the Elusive Climate Tort
**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.** The Supreme Court’s decision in American Electric Power Co. v. Connecticut (AEP) closes another door for those most vulnerable to climate change. The corrective justice goals of tort law and the associated possibilities for redress—particularly vital to the most vulnerable—remain elusive due to the Court’s restricted view of tort law’s relevance to climate change. This Essay analyzes these climate justice implications of AEP. The field of “climate justice” (CJ) is concerned with the intersection of race and/or indigeneity, poverty, and climate change. It also recognizes the direct kinship between social inequality and environmental degradation. The term “climate vulnerable,” the subject of CJ, describes those communities or nation-states that have a particularly acute exposure to present and forecasted climatic changes. That increased vulnerability is due to either the nature and degree of climate impacts’ forecast and/or the preexisting socioeconomic vulnerabilities that climate impacts amplify. Underscoring the “justice” element, these most vulnerable populations are also the least responsible for the emissions that fuel anthropogenic climate change. The Essay argues that the common law nuisance claims rejected by the Court in AEP provide an important mechanism for the climate vulnerable to achieve corrective justice. Corrective justice is one of the most important goals of tort law because of its focus on the relationship between the tortfeasor and victim. While there are myriad interpretations of corrective justice theory and its application, this approach at its core counsels simply that individuals who are responsible for the wrongful losses of others have a duty to repair those losses. Further, rectification of harms suffered can help restore the moral balance upset by the externalized costs that climate change inflicts on individuals and communities. The corollary, therefore, is that tort law should provide a venue and possible damages remedy for CJ plaintiffs whose claims—namely, injuries to life and property—demand compensation from the worst offenders.
Standing on Hot Air: American Electric Power and the Bankruptcy of Standing Doctrine
**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.** Article III standing has three seemingly simple components: (1) the plaintiffs must suffer an actual injury, (2) the injury must be caused by the defendant, and (3) the courts must be able to provide a remedy for that injury. In American Electric Power Co. v. Connecticut (AEP), the Justices deadlocked over the application of the test to a common law action for nuisance. As AEP illustrates, the apparent simplicity of the test is misleading. The claims were brought against utilities by states complaining that carbon emissions from power plants were contributing to harm from climate change. The Court devoted only a few cryptic sentences to the issue of standing. Four Justices found standing based on Massachusetts v. EPA, the Court’s path-breaking opinion on climate change, while four others rejected standing, either “adhering to a dissenting opinion in Massachusetts or regarding that decision as distinguishable.” As a result, the lower court’s finding of standing was affirmed by an equally divided Court. This disposition may leave the reasoning of the Justices mysterious, but AEP is a powerful illustration of the deep flaws in current doctrine: first, its incoherent application; second, its injection of merits issues into a supposedly jurisdictional determination; third, its manipulability in the hands of creative, well-resourced lawyers; and fourth, its resulting failure to advance any intelligible vision of the proper role of the federal judiciary.
Intersystemic Statutory Interpretation: Methodology as “Law” and the Erie Doctrine
120 Yale L.J. 1898 (2011). Do the Erie Doctrine and its “reverse-Erie” mirror require state and federal courts to apply one another’s statutory interpretation methodologies when they interpret one another’s statutes? Surprisingly, the courts have no consistent answer to this question—even though state and federal courts constantly interpret one another’s laws. What’s more, exploring this application of Erie reveals that one of the most important jurisprudential questions about statutory interpretation also remains entirely unresolved: namely, are the rules of statutory interpretation “law,” individual judicial philosophy, or something in between? This Article argues that many federal courts are getting the Erie question wrong—or at least that they are unaware that the question exists in the first place. The Erie inquiry also makes clear that federal courts treat both state and federal statutory interpretation methodology as much less “lawlike” than they treat analogous interpretive principles, without acknowledging or justifying the distinction. Federal courts routinely bypass state interpretive principles when they interpret state statutes, but almost always look to other state methodological principles, including state rules of contract interpretation, choice of law, and constitutional interpretation. Further, unlike in those other areas, the U.S. Supreme Court does not treat even its own statements about federal statutory interpretation principles as “law” and does not give them precedential effect. This practice has licensed an interpretive freedom for state and lower federal courts when those courts interpret federal statutes—a freedom that facilitates federal-law disuniformity that the Court generally does not tolerate in other contexts. This Article challenges the notion that statutory interpretation is sufficiently different from other decisionmaking regimes to justify these distinctions.
Judicious Influence: Non-Self-Executing Treaties and the Charming Betsy Canon
120 Yale L.J. 1784 (2011). Despite their seeming impotency, non-self-executing treaties play an important role in domestic jurisprudence. When a statute permits more than one construction, judges have a number of interpretive tools at their disposal. One of these is the Charming Betsy canon, which encourages judges to select an interpretation of an ambiguous statute that accords with U.S. international obligations—including those expressed in non-self-executing treaties. This Note concludes that the judicial practice of giving indirect force to all treaties through the Charming Betsy canon is both justified and beneficial.
How To Review State Court Determinations of State Law Antecedent to Federal Rights
120 Yale L.J. 1192 (2011). In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 130 S. Ct. 2592 (2010), a plurality of the Supreme Court endorsed a judicial takings doctrine for the purpose of policing wayward state property law decisions. The plurality’s opinion culminates several decades’ worth of effort by legal scholars and property law groups to secure closer federal review of state court property law determinations antecedent to federal takings claims. In a great victory for these groups, but in an opinion that also cuts against more than a century of Supreme Court deference to state courts in this area, the plurality adopted a new standard of independent review for antecedent state property law determinations. This Note examines the tradition of deference cast aside by the plurality’s opinion and makes a case for its rehabilitation. Important purposes are served by Supreme Court deference to state court determinations of antecedent state law; not least of these is the check that deference places on the Supreme Court’s own power over state court decisionmaking. This Note concludes that the damaging consequences of independent review ultimately outweigh any benefits that may accrue to property owners; it urges the Court to return to a deferential standard of review and leave state courts free to develop distinctive bodies of property law responsive to their states’ local needs and histories.
Section 5 Constraints on Congress Through the Lens of Article III and the Constitutionality of the Employment Non-Discrimination Act
120 Yale L.J. 1263 (2011).
Neuroscience and Institutional Choice in Federal Sentencing Law
120 Yale L.J. 367 (2010).
Bankruptcy as Constitutional Property: Using Statutory Entitlement Theory To Abrogate State Sovereign Immunity
119 Yale L.J. 1568 (2010). In the decade following Seminole Tribe’s ruling that Article I is not a grant of authority to abrogate state sovereign immunity, scholars and courts overwhelmingly agreed that the Eleventh Amendment barred Congress from subjecting states to suit in bankruptcy proceedings. The Court has since backpedaled, holding in Katz that the states ceded their sovereign immunity when they ratified the Bankruptcy Clause. Katz, however, leaves much unsettled—including whether the ratifying states intended to cede their immunity defenses to suits seeking monetary damages. There is also reason to doubt Katz’s durability: beyond the serious flaws in its reasoning, Eleventh Amendment precedents perish and reanimate with the changing composition of the Court, and mere days after Katz was handed down, Justice O’Connor, who provided the fifth vote for the majority, was replaced by Justice Alito. The prospect that Katz may be overruled or cabined has caused anxiety for scholars and practioners who convincingly argue that the bankruptcy system cannot effectively function unless the states, like private creditors, are subject to the binding jurisdiction of bankruptcy tribunals. In an effort to insure against Katz’s rollback, this Note offers a new theory for how Congress could invoke its enforcement powers under Section 5 of the Fourteenth Amendment to authorize suits against the state for bankruptcy violations. Borrowing from the case law on statutory entitlements and procedural due process, the Note argues that like welfare, public education, and government employment, bankruptcy protections are property interests cognizable under the Due Process Clause. Because these property interests are conferred by the federal government and binding on the states, a state that tramples on an individual's bankruptcy rights in violation of federal law effects an unconstitutional deprivation of property without due process.
The Reverse-Batson: Wrestling with the Habeas Remedy
119 Yale L.J. 1739 (2010).
Constructing America: Mythmaking in U.S. Immigration Courts
119 Yale L.J. 1012 (2010). This Note argues that immigration courts have served and continue to serve as important sites for the perpetuation of national identity myths. By focusing on a subset of cases called “cancellation of removal,” I examine the functional criteria by which immigrants are granted exemption from deportation. Despite ostensibly neutral statutory standards, immigration courts give legal sanction and shape to nostalgic, idealized, and exclusionary images of American identity. I connect this modern trend to the historical role of immigration law in constructing and amplifying narratives of identity and subordination—a pattern which has been obscured in scholarship by an overemphasis on the civil rights achievements of mid-twentieth-century immigration reforms.
INA Section 242(g): Immigration Agents, Immunity, and Damages Suits
119 Yale L.J. 625 (2009).