In his seminal work, Tort Law in America, Ted White describes tort law as vacillating between a focus that is admonitory, based on conduct that is wrongful, and compensatory, providing the injured with resources to allay their injuries. Instead of continuing to vacillate between opposing theories of tort law, this article proposes to blend them. The concept is a tort law that is generally wrongs-based, but has a compensatory bypass. There are two significant reasons to adapt compensation to a wrongs-based theory of tort law. First, incorporating compensation into tort law would match the motivations of many parties in the tort system and help improve its administration. I practiced tort law for seven years. Some of my clients were interested in vindication, but the majority were motivated by compensation, by which I mean they needed money to pay for their medical bills and/or lost wages. There is a problem, however, with sending both types of plaintiffs into the same tort system. Tort law, particularly negligence, is uncertain, and that uncertainty leads to delay and transaction costs. For plaintiffs interested in vindication, perhaps the time needed to pay close attention to facts and circumstances makes sense. After all, determining whether one has been wronged is a serious inquiry. Those features, however, are counterproductive to compensating the injured. Tort law that was able to vindicate rights in proper cases, but also efficiently compensate in others, would be ideal. Second, history demonstrates that waves of injuries pressure tort law, and the law responds in a compensatory manner. It is foreseeable that injuries will continue to pressure tort law, and it makes sense to incorporate a mechanism to handle that pressure. Moreover, history provides guidance about the likely character of a compensatory bypass: compensation would become easier to obtain, but in smaller amounts.
The scientific consensus is clear. The earth’s climate is changing, and mankind must take collective bold action. While the pace of decarbonization is being debated as a political question, it is already impacting business decisions and needs to also be addressed by regulators. From a decarbonization perspective, most challenging is what happens inside the home: addressing natural gas used for heating, cooking, clothes drying and hot water. Eliminating natural gas usage for these activities will require societal change at a massive scale, with significant economic and regulatory implications. As states move toward full decarbonization, the natural gas distribution system will need to become a central focus. Pipes put into the ground today have a lifespan of up to 80 years – far past the point where the scientific community has indicated we will need to be fully transitioned away from all fossil fuel use. Compounding this problem from a financial and regulatory perspective, natural gas distribution systems are monopoly regulated utilities, with their costs paid for by captive ratepayers. The transition raises three interrelated questions, one political and two regulatory: 1) what policies are necessary to electrify household uses; 2) how regulators should shut down the natural gas distribution system; and 3) how should regulators compensate regulated monopoly utilities for the assets that have become stranded in the transition? The answer to the first question will have a direct impact on the other two. To address these questions, this article starts with a description of the natural gas distribution system, including a quantification of value. The paper discusses options which exist for regulators as they plan to shut off, and subsequently decommission, natural gas infrastructure. Assuming some assets will become stranded, this paper reviews learnings from other stranded asset challenges, potential regulatory treatments, and what regulators could do to lessen future challenges as they are approving projects now. How to both incent and pay for the transition of all residential uses away from natural gas will be the most difficult challenge of decarbonization.
The many facets of tort liability are filtered through the requirement of proximate cause, which has made the element confusing and the source of considerable controversy. Is proximate cause properly determined by the directness test or the foreseeability test, each of which has been both widely adopted and roundly criticized? Is there any defensible conception of a direct cause? Is foreseeability an adequately determinate method for limiting liability? If so, is foreseeability relevant to duty, to proximate cause, or to both elements? Disagreement about all these matters stems from the failure to fully untangle the role of proximate cause across all elements of the tort claim. In a negligence case, for example, duty determines the risks that factor into the duty to exercise reasonable care. This property implies that the duty must be limited to the risks of foreseeable harm in order for the standard of reasonable care to govern only those harms. Foreseeability for this purpose is defined by the general zones of danger or reference classes that the reasonable person would consider when estimating the likelihood of accidental harm, reducing foreseeability to a behavioral concept that is adequately determinate for resolving the issue of breach. The element of proximate cause then provides a case-specific requirement that the plaintiff’s injury must be within a general category of foreseeable harms encompassed by both the tort duty and its breach—a necessary predicate for liability. The prima facie case accordingly requires the foreseeability test to establish proximate cause for the breach of a duty that is limited to the risks of foreseeable harm. Once liability has been established, the damages phase of the case requires a further inquiry to fix the full extent of compensable harm proximately caused by the tortious conduct. The foreseeability test produces inequities in the determination of damages that the directness test fairly resolves. This inquiry is structured by the uniformly adopted rule that permits full recovery for an unforeseeably large harm, such as a crushed skull, that was directly caused by a tortious force that would normally cause minor injury, such as a bump on the head. This rationale also explains why the intentional torts exclusively rely on the directness test, eliminating culpability as a confounding factor in the analysis of proximate cause. Because the directness test is a rule for equitably determining compensatory damages, its tort rationale does not justify the directness test for proximate cause in criminal cases, contrary to a widely adopted assumption. Instead of being competing formulations, the directness and foreseeability tests each address different components of a tort claim, explaining why each one is both widely adopted and yet roundly criticized when employed as the only method for determining proximate cause.
Today, 19 million U.S. adults are cohabiting with an intimate partner. Yet family law continues to struggle with the question whether these unmarried partners should have relationship-based rights in one another’s property. Generally speaking, states answer “no.” Because cohabitants are not spouses, they’re treated like strangers. As a result, their property rights usually follow title, and richer partners tend to walk away with a large proportion of the property acquired during the relationship. This Article shows the “cohabitant problem” to be no anomaly, but rather the clearest manifestation of family law’s overarching structure. In marital property regimes as well as in cohabitant disputes, states and scholars have taken title as both a starting and a presumptive ending point, which means that assigning property rights in any other way is “redistribution” requiring special justification. This deferential approach to title limits family law’s ability to achieve sharing outcomes, not only between cohabitants, but also between spouses. Rather than bowing to title and then redistributing, family law should reconsider how it assigns property entitlements in the first instance. Non-family property law offers a promising model, for it often weighs intimacy in determining entitlements. In relationships marked by dependence, interdependence, and vulnerability—for example, those between neighbors, co-owners, and decedents and heirs—property rights do not always hold with the same force as they might against strangers. Instead, property law acknowledges the social facts of ongoing, hard-to-exit relationships by blunting the sharp edges of owners’ prerogatives. This approach, which I describe as instantiating a “spectrum of intimacy,” allows property law to recognize and support a broad range of close, complex relationships. Family law should adopt property’s spectrum of intimacy to reshape marital property regimes and re-situate unmarried partners in the space between spouses and strangers. Just as property law permits multiple forms of joint ownership, family law should offer a menu of family statuses of which marriage is but one. For partners who do not elect a status, family law should apply a property-flavored equitable approach to distribution. By protecting sharing between both cohabitants and spouses, this approach reflects and honors the wide diversity of modern family relationships.
Immigration detention is punishment. Therefore, time-honored proposed solutions to fix the immigration adjudication system, such as converting immigration judges (which some have called “imitation judges”) into Administrative Law Judges or even creating an Article I Immigration Court, are insufficient for liberty decisions. This article proposes that Congress strip “imitation judges” of their authority to review decisions about physical liberty. Rather, such decisions should be entrusted to a magistrate judge, with review by an Article III judge. The procedures are already in place; Congress need look no further than the Bail Reform Act, which applies when a person is held awaiting a criminal trial. Federal courts have borrowed heavily from criminal pretrial detention procedures, engaging in piecemeal oversight of the immigration detention system through habeas corpus review. These decisions reflect lower federal courts’ persistence in monitoring the rights of immigration detainees, even in the face of legislation that has aimed to limit their role. The work of these courts has been laudable, but a better solution that reaches every immigration detainee is necessary. The Trump administration has threatened immigration judges’ independence at every turn. Congress, therefore, should prevent such “imitation judges” from wielding the extraordinary governmental power to take away physical liberty.
A growing portion of the American public—including policymakers, advocates, and institutional stakeholders—have generally come to accept the fact that racism endemic to the United States infects every stage of the criminal legal system. Acceptance of that fact has led to efforts to address and remedy pervasive and readily observable systemic bias. Chief among those efforts is a turn toward technology—specifically algorithmic decision-making and actuarial tools. Many have welcomed the embrace of technology, confident that technological tools can solve a problem—race-based inequity—that has bedeviled humans for generations. This article engages that embrace by probing the adoption of technological tools at various sites throughout the criminal legal system and exploring their efficacy as a remedy to racial inequality. Then, by applying a racial justice lens, this article develops and offers a set of prescriptions designed to address the design, implementation, and oversight of algorithmic tools in spaces where the promise offered by technological tools has not been met. Adherence to that lens may draw us closer to what this article terms a pragmatic abolitionist ethos regarding the use of technological tools in the criminal legal system. Such an ethos does not mean the immediate absence of a criminal legal system altogether. It instead means a criminal system that ultimately operates in ways dramatically different from the current regime by divesting from incarceration and investing in community well-being, human welfare, and rehabilitation.
Today all tort lawyers, scholars, and teachers understand that there are three bases of liability in tort: intent, negligence, and strict liability. That is ordinarily how we think about tort liability, and how we organize tort law in our thinking. But that way of thinking actually does not capture, and has never captured, all of tort law. A quick look at any of the Restatements of torts, or at the leading treatises and casebooks, reveals that this tripartite division is only partly reflected in their organizational structure. Many torts typically are treated in piecemeal, atomistic fashion, as if they fall outside of this tripartite structure of organization altogether. In addition, very different matters are addressed under the three divisions. Something else, or something additional, is going on in tort law, but exactly what is not clear, and never becomes clear. In fact, the untidy, fragmented organizational structure of contemporary tort law is the legacy of a lost history that not only helps to explain tort law’s puzzling organization, but also to reveal the underlying disordered character of tort law itself. This Article uncovers the ways in which the history and the very nature of tort liability have combined to defeat repeated efforts at coherent conceptualization of this body of law. We first examine the challenge that the treatise and casebook writers faced late in the 19th and early 20th centuries, as they attempted to organize and classify the different features of the new subject of tort law after the ancient, procedure-based “forms of action” and the writ system they accompanied were abolished along with the prohibition against party testimony. We then venture into the archives of the American Law Institute, in which the now-obscure evolution of the first Restatement of Torts in the 1920s is recorded, as that project first attempted, but then largely abandoned, an effort to develop a new, coherent organization of tort law in the first draft of the Restatement. That first draft revealed an incipient vision of tort law’s structure which appeared to be developing, but this vision sputtered and then disappeared, both from future drafts and from conventional histories of tort law. What ultimately took the place of that vision was the puzzling and fragmented organization of tort law that has come down to us today, all the way from that first Restatement. We then turn to the modern period, showing the ways in which the fragmented organization adopted by the first Restatement has persisted and been replicated, with treatises, casebooks, and both the second and third Restatements of torts largely accepting and adopting the organization of tort law that found its way into the first Restatement.
The article offers a novel approach to the threshold questions on the applicability of securities law to digital assets. The clarity of this framework should be useful to courts, regulators, and market participants. Digital-asset development involves two stages, and securities law is essential only in Stage One. However, federal securities law may apply post-launch and post-asset-delivery, i.e., during the Second Stage of a digital asset project, but in a limited way. During Stage Two, there can be two distinct and separate types of assets – a non-security-token (or coin) and a bond - simultaneously circulating after the project has been deployed and tokens distributed. In addition, there are two groups of digital asset purchasers: the initial investors who own tokens post-delivery and post-platform-launch and the subsequent token purchasers. They exist concurrently. These two cohorts of market participants have completely divergent expectations concerning the role of the issuer in the operation of the platform and the valuation of digital assets. Only the initial “bondholders” have claims against the issuer in Stage Two.
Delaware inhabits a competitive landscape that includes, but is not limited to, corporate law. Like other small jurisdictions active in cross-border corporate and financial services, Delaware has become widely associated with a particular area of specialization, providing de facto U.S. corporate law for large, publicly traded companies. However, the economic development imperatives prompting this have also led Delaware to explore opportunities in related though distinct fields that build upon this platform – effectively leveraging their corporate law advantage to expand and diversify the state's revenue streams. This article assesses Delaware's competitive position amidst this broader landscape. Part II provides an overview of prevailing accounts of U.S. corporate charter competition, which generally conclude that Delaware no longer faces substantial competition from other states; when the frame of reference is limited to domestic corporate charter competition, only federal preemption would appear to pose a substantial threat to Delaware's dominance. In response to these prevailing accounts, this part suggests that such a narrow view of the competitive landscape misses important dynamics that could affect Delaware's position moving forward. Minimally, these include the emergence of competitors abroad that challenge Delaware's corporate dominance on multiple fronts – both internationally and with respect to chartering of large companies based in the United States. Part III pushes the analysis further, however, by assessing Delaware's broader competitive landscape beyond corporate law, as such. This section reframes the matter by reference to underlying economic development imperatives, which are particularly pressing for smaller, resource-constrained jurisdictions like Delaware. It then examines Delaware's efforts to leverage corporate law – that is, to build on Delaware's corporate law advantage by expanding into related though distinct fields that build upon that preexisting platform, including aspects of financial services and insurance where chartering and innovative entity structures loom large. Part IV concludes, observing that this broader framing – including cross-border and extra- corporate dynamics – reveals a more complex competitive landscape than prevailing accounts can accommodate. Overall, Delaware faces real competition from a range of domestic and foreign jurisdictions that have grappled with similar economic development challenges through similar strategies, producing global competitive dynamics that may substantially impact Delaware's long-term prospects.
The 2016 presidential election spawned journalistic accounts igniting great concern across the political spectrum that foreign actors had been interfering with America’s democracy. Foreign engagement with politically active nonprofit organizations has contributed to the perceived problem. Although tax-exempt charitable organizations described in section 501(c)(3) of the Internal Revenue Code (the “Code”) are limited in how they can influence the political process, a close inspection of the tax laws governing charities reveals that a foreign actor can influence the political process in the United States through donations to, or other interactions with, a U.S. charitable entity in a number of ways. These methods include financially supporting an organization that already advances a mission aligned with the foreign actor’s interests, shaping the mission of an existing organization so that it better aligns with the foreign actor’s interests, funding new taxexempt entities that will operate to achieve some purpose aligned with the foreign actor’s interests, exploiting the connections that an existing organization has with policymakers, and creating supporting organizations that engage in (limited) lobbying or (virtually unlimited) attempts to influence executive and administrative action. From the fundamental requirements for qualifying an organization for federal income tax exemption to complex excise tax provisions affecting charities and their managers, the Code imposes norms of fiduciary behavior on the managers of charitable organizations. Precisely how the discharge of fiduciary duties is © 2020 Johnny Rex Buckles. * Mike and Teresa Baker College Professor of Law, University of Houston Law Center. I thank the University of Houston Law Center for supporting the research of this Article. For helpful comments to prior drafts of this Article, I thank Professors Evelyn Brody, Zachary Kaufman, Adam Parachin, and David Pozen; the participants in the panel session Nonprofit Corruptions of the Political Process: Dimension of Legal Liability at the 2018 annual meeting of ARNOVA; and the participants in the 5th Annual Texas Tax Faculty Workshop. I also thank my wife, Tami Buckles, for her constant support. 2020] CURBING (OR NOT) FOREIGN INFLUENCE 591 affected by the tax system varies with the type of tax-exempt organization in question. This Article will explore the issue of how effectively the tax system’s regulation of fiduciary behavior prevents the possible exploitation of charities by foreign actors for purposes of influencing U.S. democratic processes and policies and will propose plausible legal reforms.
