Civil vs. Criminal Legal Aid

The past few decades have highlighted the insidious effects of poverty, particularly for poor people who lack access to legal representation. Accordingly, there have been longstanding calls for “Civil Gideon,” which refers to a right to counsel in civil cases that would address issues tied to housing, public benefits, family issues, and various areas of law that poor people are often disadvantaged by due to their lack of attorneys. This civil right to counsel would complement the analogous criminal right that has been constitutionalized. Notwithstanding the persuasive arguments made for and against Civil Gideon, it is less clear why there is such a sharp distinction between civil and criminal legal aid. This Article re-examines longstanding assumptions about the civil-criminal legal aid divide and highlights some underexamined explanations: the legal profession’s historical implication in this division; courts’ unwillingness to use their inherent powers to appoint counsel; and courts’ enduringly narrow understandings of when poor people should be provided with lawyers. These insights prompt alternative reflections on how to best deliver legal services to poor people.

*                Presidential Assistant Professor of Law, University of Pennsylvania Law School. J.D., University of California, Berkeley, School of Law; Ph.D., University of California, Berkeley; M.L.A., University of Pennsylvania; B.S. Northwestern University. This Article benefitted from feedback and conversations with Guy-Uriel Charles, Scott Cummings, Anne Fleming, Trevor Gardner, Myriam Gilles, Helen Hershkoff, Olati Johnson, Steve Koh, Seth Kreimer, Serena Mayeri, K-Sue Park, Clare Pastore, Portia Pedro, Dave Pozen, Dan Richman, Louis Rulli, Kathryn Sabbeth, Matt Shapiro, Emily Stolzenberg, and Catherine Struve. Special thanks to Megan Russo and Madeline Verniero for editorial support and Alexa Nakamura, Amy Lutfi, and the Southern California Law Review staff for their overall assistance with the Article. All errors are mine.

The Expressive Fourth Amendment

After the eight-minute and forty-six second video of George Floyd’s murder went viral, cities across the United States erupted in mass protests with people outraged by the death of yet another Black person at the hands of police. The streets were flooded for months with activists and community members of all racesmarching, screaming, and demonstrating against police brutality and for racial justice.Police—like warriors against enemy forces—confronted overwhelmingly peaceful protesters with militarized violence and force. Ultimately, racial justice protesters and members of the media brought lawsuits under section 1983 of the Civil Rights Act in the district courts of Minneapolis, Dallas, Oakland, Seattle, Portland, Denver, Chicago, Los Angeles, and Indianapolis, claiming extreme violence and unlawful and abusive use of less lethal weapons by police during protests. The first Part of this Article provides a recent history of this police brutality against racial justice activists in the George Floyd protests. The second Part of this Article reviews circuit court opinions in protest cases from the last three decades and district court injunctions from the George Floyd protest litigation to analyze how courts currently evaluate, in section 1983 Actions, the Fourth Amendment reasonableness of police force pursuant to Graham v. Connor. This Part demonstrates that in their Fourth Amendment reasonableness calculus, courts discount plaintiffs’ involvement in valuable politically expressive conduct. The third Part of this Article argues that the Fourth Amendment mandates courts evaluate the reasonableness of protest policing in light of freedom of expression which means they must positively weigh plaintiffs’ expressive protest activity. This reframing of reasonableness is supported by historical evidence of the Framers’ intent and Supreme Court jurisprudence on searches of books, papers, and other expressive materials when such items arguably deserve First Amendment protection. The fourth Part of this Article discusses the difference an expression-specific Fourth Amendment—the expressive Fourth Amendment—reasonableness test would have made in one of the circuit protest cases.

How the First Amendment’s Commitment to Religious Freedom Could Ironically Save Roe v. Wade . . . If We Let It by Abigail Sellers

Article | Consitutional Law
How the First Amendment’s Commitment to Religious Freedom Could Ironically Save Roe v. Wade . . . If We Let It
by Abigail Sellers*

From Vol. 94, No. 3
94 S. Cal. L. Rev. 691 (2021)

Keywords: First Amendment, Reproductive Health, Abortion, Roe v. Wade

On May 15, 2019, Alabama Governor Kay Ivey signed the Alabama Human Life Protection Act into law.1 The Act imposes serious punishments on doctors who perform an abortion unless it “is necessary in order to prevent a serious health risk to the unborn child’s mother,” there is an ectopic pregnancy, or the fetus has a “lethal anomaly.”2 Notably, the Act does not provide an exception for pregnancies resulting from rape or incest.3 Of particular interest to this Note are statements made by Alabama lawmakers indicating this law was passed to comport with their and Alabama citizens’ religious belief that “every life is a sacred gift from God.”4 Furthermore, Alabama lawmakers are keenly aware the law is in violation of a woman’s right to terminate a pregnancy as protected under the Fourteenth Amendment Due Process right to privacy.5 In fact, the Act was designed to challenge the cases establishing and upholding this right—Roe v. Wade and Planned Parenthood v. Casey—in the hopes that the Supreme Court will overrule these precedents.6

Even more disconcerting to reproductive health advocates, Alabama was only one of seven states that passed laws in 2019 severely restricting access to abortions.7 The six other states—Georgia, Kentucky, Louisiana, Missouri, Mississippi, and Ohio—criminalized abortion after six to eight weeks of pregnancy when a fetal heartbeat can be detected.8 These are aptly referred to as “heartbeat laws.” The passage of these laws was marked by religious statements from state lawmakers, and some of these laws have been expressly designed to challenge Roe.9

With a challenge to each of these laws making its way through various federal courts,10 it is possible that the Supreme Court will hear a case involving one or more of these laws and will once again get a chance to reconsider its holdings from Roe and Casey.11 This Note will argue that the Court should never reach the privacy issue at the heart of Roe and Casey. Instead, exercising judicial restraint, the Court should decide only as much as is necessary to resolve the case in front of it12 and should deem the Alabama Human Life Protection Act and the six heartbeat laws unconstitutional under the First Amendment’s Establishment Clause. Under current Supreme Court precedent, when a law lacks a sincere secular purpose, it violates the Establishment Clause,13 and as the previously mentioned religious statements by lawmakers indicate, the purpose behind these laws is not secular. Thus, the Court should never reach the privacy issue.

This Note will (1) examine the history of the debate surrounding abortion in American politics to show how Roe and Casey are once again ripe to be challenged, (2) explain the need for a new approach to challenge the abortion laws in question based on the current composition of the Supreme Court, (3) argue that the laws violate the Establishment Clause, and (4) explain why an Establishment Clause claim is worth pursuing.

*. Editor-in-Chief, Southern California Law Review, Volume 94; J.D. Candidate 2021, University of Southern California Gould School of Law; B.S. Biochemistry & B.A. Spanish, 2018, Arizona State University. I would like to thank Melissa Sellers, Dave Sellers, Perry Vargas, and the rest of my Sellers & Vargas family members for their support throughout my time in law school. I would also like to thank Professor Rebecca Brown for her feedback. Finally, many thanks to all the Southern California Law Review for their invaluable work on my piece.

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A Dose of Dignity: Equitable Vaccination Policies for Incarcerated People and Correctional Staff During the COVID-19 Pandemic by Itay Ravid, Jordan M. Hyatt, and Steven L. Chanenson

Postscript | Government
A Dose of Dignity: Equitable Vaccination Policies for Incarcerated People and Correctional Staff During the Covid-19 Pandemic
by Itay Ravid*, Jordan M. Hyatt†, and Steven L. Chanenson‡

Vol. 95, Postscript (September 2021)
95 S. Cal. L. Rev. Postscript 1 (2021)

Keywords: Criminal Law, Public Health, Government

Since its emergence in early 2020, the COVID-19 pandemic has altered the lives of millions of Americans. As it so often is during times of crisis, our most vulnerable communities have disproportionately suffered and were overlooked. Among these myriad communities, incarcerated people became a particularly potent symbol of our failure to handle the spread of the virus. In December 2020, a beacon of hope emerged with the introduction of new cutting-edge vaccines which promised to bring the world back to where it was just a year-and-a-half ago. Here again, however, policy and politics have led states to adopt different distribution plans that, broadly speaking, deprioritized incarcerated populations and in some cases correctional staff as well. While vaccinations are now much more widespread, things were dramatically different not too long ago. The first goal of this Essay is to ensure we memorialize how society, once again, failed to protect our incarcerated communities when they needed it the most. To illustrate this, we offer a data-driven analysis of the early state-level policies regarding vaccinations of people who live and work in prisons. Our findings show that vaccination policies tended to systematically ignore or disadvantage incarcerated individuals. We argue that by adopting such policies, states have neglected to comply with their legal obligations, grounded in existing and emerging Eighth Amendment jurisprudence and long-standing ethical responsibilities to proactively vaccinate this population. This is particularly true given that prisons are among the high-risk “congregate settings” that are widely recognized by health experts, and often by the states themselves, as deserving of immediate distribution of vaccines. Based on these obligations, and given recent new virus outbreaks and the realization that some form of COVID-19 is here to stay (and other pandemics may be around the corner), this Essay concludes with recommendations for the future.

____________________

*. Assistant Professor of Law, Villanova University Charles Widger School of Law.
†. Associate Professor of Criminology and Justice Studies, Director, Center for Public Policy,

Drexel University.
‡. Professor of Law, Villanova University Charles Widger School of Law. The authors would

like to thank Kristi Arty and Michael Slights for their terrific research assistance, and the SCLR editorial team for their careful and diligent work. Research for this Article was conducted with support provided to Dr. Hyatt (Drexel University) by Arnold Ventures. The views expressed in this Article are those of the authors and do not necessarily reflect those of the funder or any of the authors’ respective academic institutions.

 

 

Age Diversity by Alexander A. Boni-Saenz

Article | Anti-Discrimination Law
Age Diversity
by Alexander A. Boni-Saenz*

From Vol. 94, No. 2
94 S. Cal. L. Rev. 303 (2021)

Keywords: Anti-Discrimination Law, Diversity, Civil Rights Law, Public Policy

 

This Article is the first to examine age diversity in the legal literature, mapping out its descriptive, normative, and legal dimensions. Age diversity is a plural concept, as heterogeneity of age can take many forms in various human institutions. Likewise, the normative rationales for these assorted age diversities are rooted in distinct theoretical foundations, making the case for or against age diversity contextual rather than universal. A host of legal rules play a significant role in regulating age diversity, influencing the presence of different generations in the workplace, judiciary, and Congress. Better understanding the nature and consequences of age diversity allows us to recognize the unique set of costs and benefits it entails and enriches our understanding of other forms of difference. Further, examining the law with an age diversity lens highlights fruitful avenues for legal reform in fields as varied as immigration law, employment law, and the law of juries. In an era of increased intergenerational tension and a rapidly aging population, the time is ripe to evaluate age diversity and the law’s role in shaping it.

* Associate Professor of Law, Chicago-Kent College of Law. abonisae@kentlaw.edu. For helpful questions and comments, I would like to thank Lori Andrews, Susan Appleton, Kathy Baker, Felice Batlan, Naomi Cahn, Sungjoon Cho, Adrienne Davis, Graeme Dinwoodie, Danielle D’Onfro, Dan Epps, John Inazu, Andrew Ingram, Peter Joy, Pauline Kim, Hal Krent, Michelle Layser, Ron Levin, Marty Malin, Nancy Marder, Nancy Morrow-Howell, Greg Reilly, César Rosado, Mark Rosen, Rachel Sachs, Chris Schmidt, Carolyn Shapiro, Peggie Smith, Noah Smith-Drelich, Brian Tamanaha, Karen Tokarz, Andrew Tuch, Deb Widiss, the editors at Southern California Law Review, and workshop participants at the American Association of Law Schools Annual Meeting, Chicago-Kent, the Chicagoland Junior Scholars Conference, and Washington University in St. Louis, where I presented earlier versions of this Article. For valuable research assistance, I would like to thank Jessica Arencibia.

 

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Prosecution or Forced Transport: Manhattan Beach’s Unconstitutional Banishment of the Homeless

Postscript | Constitutional Law
Prosecution or Forced Transport: Manhattan Beach’s Unconstitutional Banishment of the Homeless
by Jared Osborne*

Vol. 93, Postscript (April 2020)
93 S. Cal. L. Rev. Postscript 70 (2020)

Keywords: Constitutional Law, Ordinance No. 18-0020, Manhattan Beach 

 

It is apparent that an individual’s decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is a part of our heritage. – City of Chicago v. Morales[1]

  Introduction

On September 4, 2018, the Manhattan Beach City Council unanimously passed Ordinance No. 18-0020.[2] The ordinance states, in relevant part: “It shall be unlawful and a public nuisance for any person to camp” on public property.[3] Its stated purposes, among other things, are to keep all public areas “readily accessible and available . . . for their intended purposes”[4] and to promote the “health, safety, environment and general welfare of the community.”[5] Violating the ordinance may be punished as either a misdemeanor or an infraction at the city attorney or city prosecutor’s discretion.[6]

Coincidentally, on the same day the ordinance was passed, the Ninth Circuit held in Martin v. City of Boise that “as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”[7] The court concluded, “a municipality cannot criminalize such behavior consistently with the Eighth Amendment when no sleeping space is practically available in any shelter.”[8]

In turn, Manhattan Beach announced that it would only enforce the ordinance if an individual refused shelter.[9] However, the city failed to mention that Manhattan Beach lacks homeless shelters and that the city planned to have police transport individuals to shelters in other municipalities.[10] Further, many of its neighboring cities also lack homeless shelters,[11] and those that do are over ten miles away.[12] It is unclear what enforcement actions the city has taken pursuant to the ordinance since it has passed.[13] However, the city did join thirty-two other California counties and cities in an amicus brief petitioning the Supreme Court for review of the Ninth Circuit’s Martin decision, which was denied.[14]

Nonetheless, should Manhattan Beach choose to enforce its anti-camping ordinance as planned, this paper argues that doing so would unconstitutionally force individuals to choose between criminal prosecution or banishment. Part I of this paper will briefly provide an overview of homelessness in the United States, particularly in California, and place the Manhattan Beach ordinance within the various laws and practices localities have implemented in response to the rise of homelessness. Part II will examine the use of banishment in criminal law and explore various challenges to such conditions. Finally, Part III will demonstrate that Manhattan Beach’s ordinance and planned enforcement constitute banishment and are invalid for many of the same reasons courts have used to invalidate conditions of banishment imposed in criminal law.

I.  Background

Manhattan Beach’s potential transportation of the homeless out of its jurisdiction should not be viewed in isolation. Instead, it should be evaluated within the current state of homelessness and the laws and practices used to criminalize and control the homeless.

A.  Current State of Homelessness

Before discussing homelessness in America, it is important to understand the U.S. Department of Housing and Urban Development’s (“HUD”) definitions of homelessness and its Point-In-Time Count. According to HUD, “homeless describes a person who lacks a fixed, regular, and adequate nighttime residence,” “sheltered homelessness refers to people who are staying in emergency shelters, transitional housing programs, or safe havens,” “unsheltered homelessness refers to people whose primary nighttime location is a public or private place not designated for, or ordinarily used as, a regular sleeping accommodation for people,” and “Point-in-Time Counts” (“PIT”)  “are unduplicated [one]-night estimates of both sheltered and unsheltered homeless populations” done every year by local planning bodies during the last week of January.[15]

In 2019, HUD’s PIT counted 567,715 people experiencing homelessness.[16] Approximately 62 percent (356,422) were sheltered while the other 38 percent (211,293) were unsheltered.[17] In California, the PIT counted 151,278 individuals experiencing homelessness,[18] but only 136,839 year-round beds.[19]

HUD’s numbers most likely undercount the homeless population. First, the PIT count of unsheltered individuals uses visual counting, resulting in a sizeable portion of the homeless population being excluded from the statistics on account of being unseen.[20] Second, HUD’s measures do not include either those living with others in temporary “doubled up” situations or those who are currently incarcerated or institutionalized but were homeless prior to arrest.[21] Therefore, it is unsurprising that the population has been estimated to be between 2.5 to 10.2 times greater than the PIT count.[22]

Certain localities have seen dramatic growth in not just the numbers of homeless but also the visibility and awareness of such individuals. For instance, the number of unique homeless encampments reported in the media from 2007 to 2016 has increased by 1,342 percent.[23] While some of these encampments are temporary, many others became at least semi-permanent if not fully permanent fixtures within cities.[24]

B.  Punitive Response to Rise of Homeless Population

In response to these overwhelming numbers, cities have largely favored punitive measures over less costly rehabilitative ones.[25] These measures roughly fit into four categories[26]: (1) ordinances prohibiting sitting, lying down, sleeping, or camping in public places; (2) anti-panhandling laws; (3) trespass admonishments and exclusionary orders; (4) homeless encampment sweeps.

Many cities—like Manhattan Beach—have enacted ordinances banning or limiting a citizen’s ability to sit, sleep, or camp in public places. According to the National Law Center on Homelessness & Poverty’s (“NLCHP”) 2016 survey of 187 cities across the country, 18.2 percent of cities banned sleeping in public city-wide and 26.7 percent prohibited sleeping in particular public places. Moreover, the same survey found that 32.6 percent of cities surveyed restricted camping in public city-wide and 49.7 percent did so in particular areas.

Boise, Idaho’s ordinances on sitting, lying, and sleeping in public places—challenged by plaintiffs in Martin—are illustrative of such laws. One law makes “standing, lying, or sitting down on any of the sidewalks, streets, alleys or public places” in an obstructive manner a misdemeanor upon refusal of an authority’s request to “immediately move on.”[27] Sleeping and camping are also covered:

It shall be unlawful for any person to use any of the streets, sidewalks, parks or public places as a camping place at any time . . . . The term “camp” or “camping” shall mean the use of public property as a temporary or permanent place of dwelling, lodging or residence, or as a living accommodation at any time between sunset and sunrise, or as a sojourn.[28]

As NLCHP’s survey demonstrates, Boise is not an anomaly.[29] Consequently, a 2016 survey found that 75 percent of homeless people do not know a place where it is safe and legal for them to sleep.[30] These laws collectively punish the homeless for engaging in the elementary human need for rest and sleep.

Panhandling and loitering laws further allow the state to exert control over the homeless.[31] The following example from the Los Angeles Municipal Code exemplifies this approach:

No person shall stand in or upon any street, sidewalk or other public way open for pedestrian travel or otherwise occupy any portion thereof in such a manner as to annoy or molest any pedestrian thereon or so as to obstruct or unreasonably interfere with the free passage of pedestrians.[32]

 Other localities, such as Bakersfield, California, more specifically target panhandling, by making “aggressive” panhandling a crime in any public place and placing time and manner restrictions on non-aggressive forms of soliciting.[33] Critics contend that cities have used the wide-ranging latitude such ordinances offer to “target and harass” the homeless for the simple and involuntary act of being in public.[34]

Trespass admonishments are different from previously discussed measures in that they involve private business interests using the power of the state to ban unwanted individuals from private, semi-public, and public locations, including “the public transportation system, hospitals and religious institutions, libraries and recreation centers, neighborhood stores, and social service agencies.”[35] In these arrangements, private businesses band together and deputize local police officers to banish “unauthorized” individuals from places for up to one year under threat of arrest, prosecution, and conviction for violating the trespass admonishment.[36] Likewise, exclusion orders provide localities with another method to keep out homeless individuals from certain areas. For example, in Seattle, any individual violating one of the many rules governing behavior in public parks can be subject to an exclusion order prohibiting entry into the park—and possibly all city owned parks—for up to a year.[37]

Finally, in response to the rise of homeless encampments, cities have resorted to forcibly removing and clearing out these campsites.[38] These sweeps frequently result in the destruction or confiscation of people’s only property, including important items such as tents, sleeping bags, valuables, documents, and even medications.[39] Cities argue that these sweeps are necessary to limit crime, prevent environmental degradation, and promote public health.[40] While these sweeps do allow a city to clean areas,[41] they do so at a steep budgetary and human cost.[42] Even worse, there is evidence that these sweeps are an ineffective means to clear out areas[43] or induce individuals to seek out shelters.[44]

II.  Banishment Overview

A.  Banishment in the Criminal Context

Historically, banishment was a form of punishment whereby an individual was deported and exiled from a specific area, typically a state or country.[45] As others have noted,[46] perhaps the most famous banishment known to Western culture occurred when God banished Adam and Eve from Eden.[47] The Greeks, Romans, Chinese and Russians applied such punishment throughout the world.[48] Furthermore, this tradition was prevalent during colonial times as England “transported” criminals to the colonies.[49]

While it is often viewed as an outdated and primitive mode of punishment, banishment is not unheard of in the United States.[50] Today, banishment conditions are generally encountered as a condition imposed on parole, probation, or suspended sentence.[51] It has been theorized that banishment promotes rehabilitation, deterrence, and public safety.[52] Banishment conditions vary in degree and scope, ranging from state exile[53] to banishment from smaller delineated geographic areas within cities.[54]

Despite the continued use of banishment in the United States, the majority of jurisdictions have found at least some forms of banishment to be void, especially in cases involving interstate banishment and banishment by deportation.[55] In fact, twenty-seven of the thirty-six state courts that have evaluated the legality of banishment orders have held that at least some forms of banishment are illegal.[56] Generally, the larger the area a banishment order covers, the increased likelihood a court will find that the condition is void.[57] Each of the seven state courts that have reviewed banishment conditions requiring a defendant to self-deport from the United States as a condition of probation or suspended sentence have overturned such conditions because they violated the Supremacy Clause and exceeded the trial court’s judicial authority.[58] Further, all fifteen state courts that have ruled on state banishment as a condition of probation or suspension of a sentence have found it illegal.[59] However, at least five states distinguish conditions of parole or pardon from conditions of probation or suspension of a sentence, primarily arguing that banishment is a valid condition of parole and pardon because both involve an individual voluntarily agreeing to the banishment condition.[60]

As for multi-county, county, and city banishments, the results are more mixed. No court has held they are per se illegal, though seven of the ten appellate state courts that have reviewed such conditions have refused to uphold a county or city-wide banishment order.[61]

More limited banishment restrictions—specific areas within a city—have been viewed less suspiciously by courts. In five states, such narrower restrictions have been upheld in every instance these types of banishments were challenged.[62] On the other hand, Alaska and Illinois have both invalidated and upheld intracity restrictions dependent on the attendant circumstances,[63] while California, Florida, and Minnesota have voided intracity banishment conditions each time they have been challenged.[64]

At the state constitutional level, fifteen state constitutions explicitly prohibit interstate banishment,[65] and another six state constitutions forbid banishment without some form of due process.[66]

Federal courts have largely followed the same pattern as state courts—exhibiting a decreasing reluctance to void banishment orders the more limited their scope. The two federal district courts to have ruled on the legality of state banishments as conditions of probation each determined that banishment from an entire state is unconstitutional.[67] On the other hand, in 1983, the Ninth Circuit upheld a parole condition requiring a defendant—a resident of Washington prior to incarceration—to complete parole in Iowa, and not enter Washington without the parole commissioner’s permission.[68] There, the court reasoned that the constitutional right to travel is not “revived by the change in status from prisoner to parolee.”[69] In 1982, an Ohio district court held, under the “very peculiar circumstances” of the case, that a convict’s commutation granted by the governor—conditioned upon state banishment—was valid because the defendant waived his constitutional rights when accepting the commutation, and moreover, the government may impose certain conditions of liberty on individuals released early.[70]

Like state courts, federal courts are much more likely to uphold conditions of banishment from a county or specific area within a state than those banishing an offender from an entire state. The First,[71] Third,[72] Sixth,[73] Ninth,[74] and Eleventh Circuits[75] as well as the Southern District of Mississippi[76] have all upheld conditions banishing an individual from a particular county on grounds that such conditions were authorized by Federal statute, reasonably related to rehabilitation, not contrary to public policy, or some combination of these factors.[77]

Federal and state courts, in addition to various legal authorities, disagree on what constitutes banishment.[78] For example, an Oregon court held:

Banishment, however, has traditionally been “synonymous with exilement or deportation, importing a compulsory loss of one’s country.” The 90-day exclusion at issue here differs from traditional banishment in two important respects. First, it is of limited duration. Second, it does not involve loss of one’s country or even one’s place of residence or one’s ability to carry out lawful business within the drug free zones. As noted, variances are available for those who live within the drug free zones or have legitimate business there.[79]

On the other hand, the Supreme Court of Arkansas defined banishment “as an order which compels a person ‘to quit a city, place, or county for a specific period of time, or for life.’ ”[80] Generally, courts, like the Oregon court cited above, that apply a more extreme definition of banishment—an absolute, unqualified, and long-term ban from a large geographical area—are more likely to uphold banishment orders on a limited scale, whereas courts, like the Arkansas court cited above, that apply a less extreme definition of banishment, are less likely to uphold banishment orders.[81]

Johnson v. City of Cincinnati presents a unique example of generalized banishment. In Johnson, the Sixth Circuit held that an ordinance mandating banishment from all “public streets, sidewalks, and other public ways” within a city’s drug-exclusion zones for anyone arrested or taken into custody on certain drug-related offenses in these zones was unconstitutional.[82] Specifically, the court took issue with the ordinance’s lack of individualized consideration prior to exclusion,[83] and its infringement on the right to intrastate travel.[84]

Ketchum v. West Memphis also involved an individual being banished without a conviction or judicial order. In Ketchum, a man sufficiently stated a claim supporting a violation of his federal constitutional right to travel when he alleged police officers arrested him for loitering in West Memphis, Arkansas, drove him across the Mississippi River, and then “dumped” him in Memphis, Tennessee.[85]

B.  Challenges to Banishment Conditions

Banishments have been invalidated for: (1) infringing the constitutional right to travel,[86] (2) lacking a reasonable relation to rehabilitation,[87] (3) violating public policy,[88] and (4) exceeding the statutorily authorized range of punishment.[89]

Banishment conditions have been found to unconstitutionally infringe on an individual’s right to travel.[90] The Supreme Court has recognized a right to “be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.”[91] While the right to interstate travel is a fundamental freedom, not all courts apply a strict scrutiny analysis to banishment as a condition of parole, probation, suspended sentence, or pardon.[92] Some apply rational review[93] and others strict scrutiny.[94] Further, parolees may be subject to harsher travel restrictions than what could be imposed on a citizen not on parole.[95]

One potential reason why courts are more likely to uphold county or city banishment orders over state banishment orders could be a reluctance to explicitly recognize a constitutional intrastate right to travel.[96] The Supreme Court has not ruled on whether there is an implicit right to intrastate travel inherent from the right to interstate travel.[97] However, multiple state and federal courts have expressly found such a right, including California,[98] Washington, Wyoming, Wisconsin, Hawaii, Minnesota, and New York at the state level and the Sixth Circuit[99] at the federal level.[100] “[T]he right to intrastate travel (which includes intramunicipal travel) is a basic human right protected by the United States and California Constitutions as a whole. Such a right is implicit in the concept of a democratic society and is one of the attributes of personal liberty under common law.”[101] Moreover, “[i]t would be meaningless to describe the right to travel between states as a fundamental precept of personal liberty and not to acknowledge a correlative constitutional right to travel within a state.”[102]

Given that many courts do not recognize a fundamental right to travel, or have held that probationers and parolees are subject to stricter restrictions on their constitutional rights, banishment orders have also been challenged as not being reasonably related to states’ dual goals to rehabilitate convicts and protect the public at large.[103] Generally, such challenges are roughly analyzed via an application of the attendant facts and circumstances of the underlying criminal offense, banishment, and the connection between the two. However, some courts, such as Washington[104] and Mississippi,[105] apply a specific set of factors to aid in this analysis. A Texas court held that “banishing appellant from the county . . . when he is broke and unemployed is not reasonably related to his rehabilitation,” especially considering the appellant was a resident of the area prior to his conviction for the unauthorized use of a vehicle.[106] On the other hand, a Wisconsin court upheld a banishment condition prohibiting a convicted stalker from entering a city where his victim resided because it was reasonably related to rehabilitation and the defendant had no reason to enter the city, making the banishment a mere “inconvenience.”[107]

In addition to challenging the penological purposes of a banishment order, courts have held that such orders violate public policy.[108] In 1930, the Michigan Supreme Court, in People v. Baum, articulated how interstate banishment violates public policy:

To permit one State to dump its convict criminals into another would entitle the State believing itself injured thereby to exercise its police and military power in the interest of its own peace, safety, and welfare, to repel such an invasion. It would tend to incite dissension, provoke retaliation, and disturb that fundamental equality of political rights among the several States which is the basis of the Union itself. Such a method of punishment . . . is impliedly prohibited by public policy.[109]

Baum is often cited when courts invalidate a banishment order on public policy grounds.[110] In 1946, a California court applied the same reasoning to invalidate county or city banishments on public policy grounds.[111] Conversely, state courts in Mississippi and Georgia have held that intrastate banishments do not violate public policy.[112]

Finally, banishments have been challenged for exceeding the range of punishment authorized by statute. “A common tenet of criminal law . . . is that the judge can only sentence the defendant to that which the legislature has deemed within the permissible range of punishment . . . .”[113] Thus, absent statutory authorization, a judge may not impose a condition of banishment on probation or suspension of a sentence.[114]

III.  Manhattan Beach’s Ordinance and Practices as an Illegal Form of Banishment

The Manhattan Beach Ordinance and its planned enforcement protocol is unconstitutional because it is a form of banishment, burdens the right to travel, is not reasonably related to rehabilitation or public safety, and violates public policy. This is true regardless of whether the city only enforces it when an individual in violation of the ordinance refuses transportation to a shelter arranged for by the city.

A.  The Manhattan Beach Ordinance and Enforcement Protocol Constitute Banishment

Banishment should be understood as “an order which compels a person ‘to quit a city, place, or county for a specific period of time, or for life.’ ”[115] By forcing a homeless individual to leave Manhattan Beach, the ordinance and its enforcement plan undoubtedly “compels” an individual to quit the city. Further, by arranging mandatory shelter services for the individual, the city has specified a period of time—at minimum overnight—the person may not return given that Manhattan Beach lacks homeless shelters. Despite the seemingly fleeting nature of the banishment involved—one might argue a homeless individual can return to Manhattan Beach after spending the night in a shelter—the realities of being homeless make the banishment substantial. By virtue of being impoverished and homeless, an individual forced to acquiesce to a police officer’s offer of relocation under threat of fine or imprisonment most likely lacks the resources to return in a timely manner. Furthermore, the homeless often have jobs they must return to,[116] nearby families or loved ones that require care or visitation, and vital social services close to where they live, albeit without shelter.[117] As researchers Katherine Beckett and Steve Herbert have documented in their interviews with homeless individuals in Seattle banished from certain city zones, ostensibly temporary and limited forms of banishment have a profound impact on the homeless akin to more traditional forms of banishment[118]

Furthermore, it should make no difference whether or not a person “chooses” to accept Manhattan Beach’s offer to accept shelter under threat of prosecution. Just as courts have ruled that a defendant’s “agreement” to a banishment condition on probation does not make it valid,[119] consent given by a homeless person—who unlike a probationer has not just been convicted of a crime—to accept shelter elsewhere does not make the forced transportation out of Manhattan Beach legal. Therefore, the relocation under threat of prosecution should be categorized as a form of banishment.

B.  The Ordinance and Mandated Shelter Beyond Manhattan Beach’s Jurisdiction is Invalid

California has recognized not only an intrastate but also an intra-municipal right to travel under the United States and California constitutions.[120] Therefore, one is precluded from arguing that the forced relocation to a nearby shelter is too geographically narrow to run afoul of the constitutionally provided right to travel. Moreover, while probationers, parolees and prisoners may be subject to “limitations on liberty from which ordinary persons are free,”[121] homeless individuals—like housed individuals—not convicted of a crime may not be. Given the Martin decision, Manhattan Beach cannot prosecute an individual for sleeping outside if the city lacks shelter beds. Therefore, homeless individuals in Manhattan Beach have not relinquished their full constitutional right to travel and the city would violate this right by mandating an individual leave a municipality where a person wants to remain.

While judges are often legally bound by sentencing guidelines requiring punishment to be reasonably related to rehabilitation and public safety at large, the Manhattan Beach City Council is generally not under such constraints when enacting ordinances and city practices. Nonetheless, the city should apply this type of analysis to its anti-camping ordinance. In this case, the homeless individual is not an incarcerated or supervised criminal, so the city should not be concerned with a criminal rehabilitation, but rather a more holistic rehabilitation aiming to help an individual obtain safe and stable housing. Unfortunately, Manhattan Beach’s plan as currently constructed will most likely fail to achieve this aim. As previously discussed, homeless people live in areas where they have social, familial, and employment ties. Thus, forcing someone to immediately accept shelter at a city determined location—potentially with no input from the homeless individual—seems to bear little relation to the goal of getting a person off the streets. At best it might be a temporary and shortsighted fix for the city at the expense of the individual. At worst, a person will refuse the offer and be arrested by the police, requiring the city to use its resources to house the individual in jail, waste administrative capacity on processing, and most likely end up with the individual back living unsheltered in its jurisdiction.[122] Instead of forcing an individual to choose between prosecution and forced relocation, the city should proactively apply city services, including its newly hired homeless liaison, to homeless prevention, not criminalization or banishment.

Additionally, Manhattan Beach’s planned policies are void for public policy for the same reasons criminal banishment orders violate public policy. It invokes the same problems identified by the Baum court in its critique of banishing criminals: sending one’s homeless to neighboring jurisdictions would most definitely “tend to incite dissension, provoke retaliation, and disturb that fundamental equality of political rights among the several States [or municipalities] which is the basis of the Union itself. Such a method of punishment . . . is impliedly prohibited by public policy.”[123]

Finally, Manhattan Beach’s planned enforcement exceeds the range of punishment provided by statutory authority. A violation of the ordinance is punishable “as a misdemeanor or an infraction at the discretion of the City Attorney or City Prosecutor.”[124] The ordinance does not authorize the forced relocation of an individual upon pain of punishment. Similar to how judicial banishment orders were found to exceed the court’s authority,[125] the city’s planned enforcement exceeds the city’s statutory authority. Further, a potential unlawful seizure could result should a person “accept” transportation to an area shelter.[126]

In conclusion, Manhattan Beach’s plan constitutes banishment because it impermissibly compels an individual to quit Manhattan Beach for a period of time. Furthermore, the planned practices are illegal because they unduly burden the constitutional rights of interstate and intrastate travel, are void for public policy, and exceed the statutorily authorized range of punishment. Finally, the city council should alter its practices given how its plan is not reasonably related to achieving a long-term decrease in the homeless population or increasing public safety.

 


[*] *.. Executive Senior Editor, Southern California Law Review, Volume 93; J.D. Candidate 2020, University of Southern California Gould School of Law; B.A. Art History 2009, New York University. Thank you to my wife, Allison, and my family and friends for all of their support. In addition, thank you to Professor Clare Pastore for her guidance not just during the drafting of this Note but throughout my time in law school. Finally, thank you to the talented Southern California Law Review editors for their excellent work.

 [1]. City of Chicago v. Morales, 527 U.S. 41, 54 (1999) (plurality opinion) (quoting Kent v. Dulles, 357 U.S. 116, 126 (1958)) (holding that an ordinance prohibiting a gang member from loitering in any public place with one or more people to be unconstitutionally vague).

 [2]. Manhattan Beach, Cal., Municipal Code ch. 4.140 (2019).

 [3]. Id. § 4.140.030.

 [4]. Id. § 4.140.010.

 [5]. Id.

 [6]. Id. § 4.140.130.

 [7]. Martin v. City of Boise, 920 F.3d 584, 617 (9th Cir. 2019).

 [8]. Id. at 618.

 [9]. Homelessness, Manhattan Beach, https://www.citymb.info/government/city-manager/
homelessness [https://perma.cc/78KC-XQ6U] (“If the City has arranged for adequate and available shelter, and an individual chooses not to use it, the City will enforce the new Ordinance.”). The city steadfastly maintained its ability to enforce the ordinance. Emily Holland, Manhattan Beach Makes it Illegal to Live On the Street, Patch (Sept. 13, 2018, 10:10 AM), https://patch.com/california/manhattan
beach/anti-camping-ordinance-adopted-manhattan-beach [https://perma.cc/4F8J-3FAZ] (“The City still retains the authority to arrest any individual who has committed a crime, regardless of his or her status, and will continue to exercise that authority . . . .”).

 [10]. Mark McDermott, Anti-Camping Ordinances Aimed at Homeless under Scrutiny, Easy Reader News (Sept. 21, 2018), https://easyreadernews.com/anti-camping-ordinances-aimed-at-home
less-under-scrutiny [https://perma.cc/ZV8W-33UK] (“[T]here are no homeless shelters in Manhattan Beach. MBPD offers homeless transport to regional homeless shelters.”).

 [11]. This author’s search could not locate any homeless shelters in the nearby cities of El Segundo, Redondo Beach, Hermosa Beach, or Gardena.

 [12]. For example, the Doors of Hope Women’s Shelter in Wilmington, California, is a 15.9 mile drive from Manhattan Beach’s city center; the Beacon Light Mission, also in Wilmington, is a 16.5 mile drive; and Jordan’s Disciples Community Service is 16.9 miles from Manhattan Beach.

 [13]. The author’s email to the city’s homeless liaison went unanswered.

 [14]. For this brief, see generally Brief for Cal. State Ass’n of Counties & 33 Cal. Counties & Cities as Amici Curiae Supporting Petitioner, 140 S. Ct. 674 (2019) (No. 19-247) (mem.).

 [15]. U.S. Dep’t of Hous. & Urban Dev., Annual Homeless Assessment Report (AHAR) to Congress pt. 1, at 2–3 (2017), https://files.hudexchange.info/resources/documents/2017-AHAR-Part-1.pdf [https://perma.cc/EG3Q-DYRM].

 [16]. U.S. Dep’t of Hous. & Urban Dev., HUD 2019 Continuum of Care Homeless Assistance Programs Homeless Populations and Subpopulations: All States, Territories, Puerto Rico and District of Columbia 1 (2019), https://files.hudexchange.info/reports/published/
CoC_PopSub_NatlTerrDC_2019.pdf [https://perma.cc/HB2V-EJEM].

 [17]. Id.

 [18]. U.S. Dep’t of Hous. and Urban Dev., HUD 2019 Continuum of Care Homeless Assistance Programs Homeless Populations and Subpopulations: California 1 (2019), https://files.hudexchange.info/reports/published/CoC_PopSub_State_CA_2019.pdf [https://perma.cc/M
9N8-FHF6].

 [19]. U.S. Dep’t of Hous. and Urban Dev., HUD 2019 Continuum of Care Homeless Assistance Programs Homeless Housing Inventory Count Report: California 1 (2019), https://files.hudexchange.info/reports/published/CoC_HIC_State_CA_2019.pdf [https://perma.cc/727M
-ERDB].

 [20]. Nat’l Law Ctr. on Homelessness & Poverty, Don’t Count on It: How the HUD Point-in-Time Count Underestimates the Homeless Crisis 6 (2017), https://nlchp.org/wp-content/
uploads/2018/10/HUD-PIT-report2017.pdf [https://perma.cc/RE4P-ACTM] [hereinafter Don’t Count on It]. One New York study found that 31 percent of the homeless slept in areas “not visible” at the time of the count. Kim Hopper et al., Estimating Numbers of Unsheltered Homeless People Through Plant-Capture and Postcount Survey Methods, 98 Am. J. Pub. Health 1438, 1440 (2008).

 [21]. Don’t Count on It, supra note 20, at 6. Such exclusions are not trivial as Houston’s 2017 PIT count increased 57 percent when including individuals in county jails who reported being homeless at the time of arrest. Id.

 [22]. Id.

 [23]. Natl Law Ctr. on Homelessness & Poverty, Tent City, USA: The Growth of Americas Homeless Encampments and How Communities are Responding 7 (2017), https://nlchp.org/wp-content/uploads/2018/10/Tent_City_USA_2017.pdf [https://perma.cc/K9N5-Y2D8] [hereinafter Tent City]; see also Phil Willon & Taryn Luna, Californias Homelessness Crisis Is ‘A Disgrace,Newsom Says in State of the State Address, L.A. Times (Feb. 19, 2020), https://www.latimes.com/homeless-housing/story/2020-02-19/governor-gavin-newsom-state-of-state-california-speech-homelessness [https://perma.cc/T84S-XNWX].

 [24]. See Tent City, supra note 23, at 7 (“Close to two-thirds of reports which recorded the time in existence of the encampments showed they had been there for more than one year, and more than one-quarter had been there for more than five years.”).

 [25]. See Natl Law Ctr. on Homelessness & Poverty, Housing Not Handcuffs 2019: Ending the Criminalization of Homelessness in U.S. Cities 71–73 (2019), https://nlchp.org/wp-content/uploads/2019/12/HOUSING-NOT-HANDCUFFS-2019-FINAL.pdf [https://perma.cc/U6EH-L5AS] (estimating that the annual cost per homeless person of arrests, jail stays, ER visits, and hospital stays costs Central Florida $31,000 in comparison to $10,000 per year to provide permanent housing and a case manager).

 [26]. Cf. Farida Ali, Note, Limiting the Poors Right to Public Space: Criminalizing Homelessness in California, 21 Geo. J. on Poverty L. & Poly 197, 212–16 (2014) (categorizing criminalization of homelessness into the following: (1) sleeping ordinances, (2) loitering ordinances, (3) panhandling ordinances, (4) sanitation ordinances).

 [27]. Boise, Idaho, City Code § 7-3A-1 (2019).

 [28]. Id. § 7-3A-2.

 [29]. See, e.g., Durango, Colo., Code of Ordinances § 17-60(c) (2019) (outlawing—with only limited exceptions—sitting, kneeling, reclining, or lying down “in the downtown business area upon any surface of any public right-of-way, or upon any bedding, chair, stool, or any other object placed upon the surface of any public right-of-way between the hours of 7:00 a.m. and 2:30 a.m. of the next day”); see also Santa Monica, Cal., Municipal Code § 4.08.095 (2020); Beverly Hills, Cal., City Code § 5-6-1501–5-6-1502 (2019); Seattle, Wash., Municipal Code § 18.12.250 (2020).

 [30]. W. Reg’l Advocacy Project, National Civil Rights Outreach Fact Sheet 2 (2016), https://wraphome.org/wp-content/uploads/2017/10/NationalCivilRightsFactSheetOctober2016.pdf [https://perma.cc/KLC8-2GJ4].

 [31]. Terry Skolnik, Homelessness and the Impossibility to Obey the Law, 43 Fordham Urb. L.J. 741, 759–61 (2016) (noting that while not all persons who panhandle are homeless, studies have shown that many panhandlers are).

 [32]. L.A., Cal., Municipal Code  § 41.18(a) (2019).

 [33]. Bakersfield, Cal., Municipal Code § 9.32.020 (2019).

 [34]. Ali, supra note 26, at 212–213.

 [35]. ABA Comm’n on Homelessness & Poverty, No Such Place as “Away:” Why Banishment is a Wrong Turn on the Path to Better and Safer Cities 1–2 (2010), https://www.americanbar.org/content/dam/aba/migrated/homeless/PublicDocuments/ABA_CHP_Banishment_White_Paper_February_2010.pdf [https://perma.cc/4TYY-GWGU].

 [36]. Id. at 1.

 [37]. Id. at 2.

 [38]. Natl Coal. for the Homeless, Swept Away: Reporting on the Encampment Closure Crisis 2 (2016), http://nationalhomeless.org/publication/view/swept-away-2016 [https://perm
a.cc/7FEQ-HGTX
].

 [39]. Id.; see also Jennifer Wadsworth, San Jose Dramatically Increases Sweeps of Homeless Camps, San Jose Inside, (Nov. 2, 2018), http://www.sanjoseinside.com/2018/11/02/san-jose-dramatically-increases-sweeps-of-homeless-camps [https://perma.cc/PV6N-W75X].

 [40]. Natl Coal. for the Homeless, supra note 38, at 5.

 [41]. Dakota Smith, L.A. Wants More Money for Homeless Encampment Sweeps, L.A. Times (Feb. 21, 2018, 4:00 AM), http://www.latimes.com/local/lanow/la-me-ln-homeless-clean-backlog-20180221-story.html [https://perma.cc/7QC3-5WQ6].

 [42]. Office of the City Auditor, Report to the City Council City of San Jose, Audit of the City’s Homeless Assistance Programs 41 (2018), https://www.sanjoseca.gov/Home/Show
Document?id=33914 [https://perma.cc/TT3P-QZQK]. The City of San Jose spent over two million dollars during the 2017–2018 fiscal year. Id. at 37.

 [43]. Laura Waxmann, Homeless Advocates Claim April Sweeps Led to More Encampment Complaints, S.F. Examr (May 25, 2018, 12:00 AM), http://www.sfexaminer.com/homeless-advocates-claim-april-sweeps-led-encampment-complaints [https://perma.cc/59KD-BHNC] (noting that an analysis of homeless encampment complaints in an area affected by a major sweep actually increased 8 percent the month after tents were removed).

 [44]. See Natl Coal. for the Homeless, supra note 38, at 7 (“Seattle’s Human Services Department admitted that the majority of campers displaced in sweeps did not end up in city shelters, and a Honolulu survey revealed that more encampment residents stated that sweeps made them less likely or able to seek shelter than the reverse.” (footnote omitted)).

 [45]. 1 Shirelle Phelps & Jeffrey Lehman, Wests Encyclopedia of American Law 462 (2d ed. 2005).

 [46]. Jason S. Alloy, Note, “158-County Banishment in Georgia: Constitutional Implications Under the State Constitution and the Federal Right to Travel, 36 Ga. L. Rev. 1083, 1085 (2002).

 [47]. Genesis 3:22–23 (New International Version).

 [48]. Phelps & Lehman, supra note 45, at 462.

 [49]. Id.

 [50]. See Brian McGinnis, This Is Why Some U.S. Judges Banish Convicts From Their Home Communities, Wash. Post (Mar. 16, 2017, 4:00 AM), https://www.washingtonpost.com/news/monkey-cage/wp/2017/03/16/this-is-why-some-u-s-judges-banish-convicts-from-their-home-communities/?no
redirect=on&utm_term=.1b630b8931b2 [https://perma.cc/6TET-JPVD] (“Houston County, for instance, has banished more than 500 people since 1998.”).

 [51]. Robert E. Haffke, Note, Intrastate Banishment: An Examination and Argument for Strict Scrutiny of Judicially and Executively Imposed Banishment Orders, 57 Case W. Res. L. Rev. 896, 903 (2007).

 [52]. Id. at 903–08.

 [53]. Reeves v. State, 5 S.W.3d 41, 42 (Ark. 1999) (reviewing an appeal of a seven-year exile from the state of Arkansas as a probation condition imposed on a defendant convicted of stalking).

 [54]. State v. Morgan, 389 So. 2d 364, 366 (La. 1980) (affirming a special probation condition that banned a defendant convicted of prostitution from the French Quarter neighborhood for the length of the defendant’s probation).

 [55]. Wm. Garth Snider, Banishment: The History of Its Use and a Proposal for Its Abolition Under the First Amendment, 24 New Eng. J. on Crim. & Civ. Confinement 455, 466 (1998) (“The majority of courts, both federal and state, which have addressed the legality of banishment, have held that banishment is illegal.”).

 [56]. See Brown v. State, 660 So. 2d 235, 236 (Ala. Crim. App. 1995); Jones v. State, 727 P.2d 6, 7–9 (Alaska Ct. App. 1986); Reeves, 5 S.W.3d at 44–45; Alhusainy v. Super. Ct., 48 Cal. Rptr. 3d 914, 919 (Ct. App. 2006); State ex rel. Baldwin v. Alsbury, 223 So. 2d 546, 547 (Fla. 1969); People v. Harris, 606 N.E.2d 392, 397 (Ill. App. Ct. 1992); Burnstein ex rel. Burnstein v Jennings, 4 N.W.2d 428, 429 (Iowa 1942); Weigand v. Commonwealth, 397 S.W.2d 780, 781 (Ky. Ct. App. 1965); State v. Sanchez, 462 So. 2d 1304,1309–10 (La. Ct. App. 1985); Howard v. State, No. 1909, 2016 Md. App. LEXIS 1370, at *37–38 (Md. Ct. Spec. App. Oct. 12, 2016) (unpublished); Commonwealth v. Pike, 701 N.E.2d 951, 960–61 (Mass. 1998); People v. Baum, 231 N.W. 95, 96 (Mich. 1930); State ex rel. Halverson v. Young, 154 N.W.2d 699, 701–02 (Minn. 1967); Mackey v. State, 37 So. 3d 1161, 1166–67 (Miss. 2010); State v. Muhammad, 43 P.3d 318, 324 (Mont. 2002); Ex parte Thornberry, 254 S.W. 1087, 1089–1090 (Mo. 1923); State v. J. F., 621 A.2d 520, 522 (N.J. Super. Ct. App. Div. 1993); State v. Charlton, 846 P.2d 341, 344 (N.M. Ct. App. 1992); People v. Marcial, 577 N.Y.S.2d 316, 317 (App. Div. 1991); State v. Doughtie, 74 S.E.2d 922, 924 (N.C. 1953); State v. Mose, No. 11CA0083-M, 2013 Ohio App. LEXIS 562, at *7 (Ohio Ct. App. Feb. 25, 2013); State v. Jacobs, 692 P.2d 1387, 1389 (Or. Ct. App. 1984); State v. Karan, 525 A.2d 933, 934 (R.I. 1987); State v. Baker, 36 S.E. 501, 502 (S.C. 1900); Johnson v. State, 672 S.W.2d 621, 623 (Tex. Ct. App. 1984); State v. Schimelpfenig, 115 P.3d 338, 339 (Wash. Ct. App. 2005): Crabtree v. State, 112 P.3d 618, 622 (Wyo. 2005).

 [57]. See, e.g., Schimelpfenig, 115 P.3d at 339 (“An order banishing an individual from a large geographical area is bound to raise both societal and legal concerns.”).

 [58]. See In re Babak S., 22 Cal. Rptr. 2d 893, 898 (Ct. App. 1993); Weigand, 397 S.W.2d at 781; Sanchez, 462 So. 2d at 1309–1310; State v. Pando, 921 P.2d 1285, 1286–87 (N.M. Ct. App. 1996); Commonwealth v. Nava, 966 A.2d 630, 635–36 (Pa. Super. Ct. 2009); State v. Karan, 525 A.2d 933, 934 (R.I. 1987); Gutierrez v. State, 354 S.W.3d 1, 7 (Tex. Ct. App. 2011).

 [59]. Warren v. State, 706 So. 2d 1316, 1318 (Ala. Crim. App. 1997); Reeves,  5 S.W.3d at 44–45; Alhusainy, 48 Cal. Rptr. at 919; Burnstein, 4 N.W. 2d at 429; Harris, 606 N.E.2d at 397; Q.M. v. Commonwealth, 459 S.W.3d 360, 370 (Ky. 2015); Pike, 701 N.E.2d at 960–61; Baum, 231 N.W. at 96; Halverson, 154 N.W.2d at 701; J. F., 621 A.2d at 522; Charlton, 846 P.2d at 344; Marcial, 577 N.Y.S.2d at 317; Doughtie, 74 S.E.2d at 924; Mose, 2013 Ohio App. LEXIS 562l at *7; Baker, 36 S.E. at 502; Snider, supra note 55, at 466 (“Almost without exception, courts reviewing a plan of probation requiring a person to leave the state or a large geographical subdivision of the state, have found the plan to be illegal.”).

 [60]. Beavers v. State, 666 So. 2d 868, 871–72 (Ala. Crim. App. 1995) (holding county banishment was valid because there was no statutory or constitutional authority proscribing banishment as a condition of parole, the parole board had statutory authority to set parole rules, and had defendant turned down parole he would have faced banishment anyways, so there was no loss of liberty); Dougan v. Ford, No. 04-623, 2005 Ark. LEXIS 519, at *3–4 (Ark. Sept. 29, 2005) (holding a parole condition requiring defendant not return to a specific county valid because there was no constitutional right or entitlement to parole, the parole board was provided statutorily authorized discretion to set parole conditions, and defendant was free to decline and serve out his sentence instead); In re Petition for Cammarata, 67 N.W.2d 677, 682–83 (Mich. 1954); Ex parte Snyder, 159 P.2d 752, 754 (Okla. Crim. App. 1945); Mansell v. Turner, 384 P.2d 394, 395 (Utah 1963) (“If the conditional termination were void, petitioner has no complaint as to recommitment to prison, since the compact was nudum pactum.”); see also Snider, supra note 55, 466 (1998) (“[A] number of states have drawn a distinction between banishment as a condition of probation or suspension of sentence, and banishment as a condition of a pardon or parole.”).

 [61]. Alabama, California, Maryland, Missouri, Montana, Ohio, Washington and Wyoming have all rejected each county and city banishment reviewed. See Brown, 660 So. 2d at 236 (“Our statutes do not permit courts to impose sentences of banishment. Such an agreement is beyond the jurisdiction of the court and is void.”); Ex parte Scarborough, 173 P.2d 825, 827 (Cal. Ct. App. 1946); Howard, 2016 Md. App. LEXIS 1370, at *37–38; Thornberry, 254 S.W. at 1089–90; Muhammad, 43 P.3d at 324; State v. Jerido, No. 1997CA00265, 1998 Ohio App. LEXIS 2482, at *2–3 (Ohio Ct. App. May 26, 1998); State v. Schimelpfenig, 115 P.3d 338, 341 (Wash. Ct. App. 2005); Crabtree, 112 P.3d at 622. On the other hand, Mississippi has both upheld and invalidated such banishments dependent on the circumstances of the case. See Mackey v. State, 37 So. 3d 1161, 1166­–67 (Miss. 2010) (holding that a condition prohibiting defendant from coming within 100 miles of a city for 30 years was invalid because the trial court’s order lacked factual findings in support of banishment); Cobb v. State, 437 So. 2d 1218, 1221 (Miss. 1983) (upholding banishment condition requiring defendant to stay at least 125 miles away from a county). Georgia and Wisconsin have upheld city or county banishments each time they have been reviewed.   De Terry v. Hamrick, 663 S.E.2d 256, 258–59 (Ga. 2008); State v. Nienhardt, 537 N.W.2d 123, 125–26 (Wis. Ct. App. 1995); State v. Johnson, No. 02-2793-CR, 2003 Wis. LEXIS App 188 (Wis. Ct. App. July 15, 2003) (unpublished), aff’d 681 N.W.2d 901 (Wis. 2004).

 [62]. People v. Brockelman, 933 P.2d 1315, 1320–21 (Colo. 1997); Tyson v. State, 687 S.E.2d 284, 287 (Ga. Ct. App. 2009); State v. Morgan, 389 So. 2d 364, 366 (La. 1980); State v. James, 978 P.2d 415, 419 (Or. Ct. App 1999); State v. McBride, 873 P.2d 589, 592–94 (Wash. Ct. App. 1994).

 [63]. For Alaska, compare Oyoghok v. Anchorage, 641 P.2d 1267, 1270–71(Alaska Ct. App. 1982) (holding that a two-block radius restriction as condition of probation for prostitution conviction was not overbroad as applied, was reasonably related to rehabilitation, and did not unduly impinge upon probationer’s liberty), with Jones v. State, 727 P.2d 6, 7–9 (Alaska Ct. App. 1986) (holding that a forty-five block restriction was invalid as there was no nexus between location and defendant’s crime and the banishment was unnecessarily severe and restrictive). For Illinois, compare People v. Pickens, 542 N.E.2d 1253, 1257 (Ill. App. Ct. 1989) (holding that banishment from a fifty-block area of downtown absent written permission from a probation officer was not invalid and was reasonable), with In re J.G., 692 N.E.2d 1226, 1229 (Ill. App. Ct. 1998) (holding that banishment was invalid because it was not reasonably related to rehabilitation).

 [64]. In re White, 158 Cal. Rptr. 562, 555–57 (Cal. Ct. App. 1979) (holding that a probation restricting a convicted prostitute from known areas of prostitution too broad and unrelated to rehabilitation, and thus unreasonable and unconstitutional); State ex rel. Baldwin v. Alsbury, 223 So. 2d 546, 547 (“[O]ut-of-town or informal banishment . . . from the city is cruel and unusual punishment and is prohibited by the Federal and Florida Constitutions.”); State v. Holiday, 585 N.W.2d 68, 71 (Minn. Ct. App. 1998) (holding that an order banning defendant from reentering all public housing within the city after a charge of minor trespass was an unconstitutional violation of defendant’s right of association).

 [65]. Snider, supra note 55, at 465; see also Ala. Const. art I, § 30 (“[N]o citizen shall be exiled.”); Ark. Const. art. II, § 21 (“[N]or shall any person, under any circumstances, be exiled from the State.”); Ga. Const. art. I, § 1, para. XXI (“Neither banishment beyond the limits of the state nor whipping shall be allowed as a punishment for crime.”); Ill. Const. art I, § 11 (“No person shall be transported out of the State for an offense committed within the State.”); Neb. Const. art. I, § 15 (“[N]or shall any person be transported out of the state for any offense committed within the state.”); Ohio Const. art. I, § 12 (“No person shall be transported out of the state, for any offense committed within the same.”); Tex. Const. art. I, § 20 (“No person shall be transported out of the State for any offense committed within the same.”); Vt. Const. ch. I, art. XXI (“[N]o person shall be liable to be transported out of this state for trial for any offence committed within the same.”); W. Va. Const. art. III, § 5 (“No person shall be transported out of, or forced to leave the State for any offence committed within the same.”).

 [66]. Snider, supra note 55, at 465. Md. Const. art. XXIV (“[N]o man ought to be . . . exiled . . . but by the judgment of his peers, or by the Law of the land.”); Mass. Const. pt. 1, art. XII (“No subject shall be . . . exiled . . . but by the judgment of his peers, or the law of the land.”); N.H. Const. pt. 1, art. XV (“No subject shall be . . . exiled . . . but by the judgment of his peers, or the law of the land.”); N.C. Const. art. I, § 19 (“No person shall be . . . exiled . . . but by the law of the land.”); Okla. Const. art. II, § 29 (“No person shall be transported out of the State for any offense committed within the State, nor shall any person be transported out of the state for any purpose, without his consent, except by due process of law.”); Tenn. Const. art I, § 8 (“[N]o man shall be . . . exiled . . . but by the judgment of his peers, or the law of the land.”).

 [67]. Rutherford v. Blankenship, 468 F. Supp. 1357, 1360 (W.D. Va. 1979) (holding that a ten-year banishment from Virginia was void on both public policy and cruel and unusual punishment grounds); Naked City, Inc. v. Aregood, 667 F. Supp. 1246, 1261 (S.D. Ind. 1987) (holding—without any reasoning provided—that a ten-year banishment from the state was in violation of the Constitution).

 [68]. Bagley v. Harvey, 718 F.2d 921, 924–25 (9th Cir. 1983).

 [69]. Id. The court also relied on the fact that the parolee suggested he complete parole in Iowa, and he was free to return to Washington after parole concluded.

 [70]. Carchedi v. Rhodes, 560 F. Supp. 1010, 1017–19 (S.D. Ohio 1982).

 [71]. United States v. Garrasteguy, 559 F.3d 34, 43–44 (1st. Cir. 2009) (upholding a condition of supervised release requiring defendants to not enter the county—without any exceptions­—where they distributed cocaine for eight and twelve years, respectively, despite the breadth of the banishment giving the court “pause”).

 [72]. United States v. Sicher, 239 F.3d 289, 292 (3d Cir. 2000) (upholding prohibition from two counties, with limited ability to enter with a probation officer’s permission, because it was reasonably related to the rehabilitative goal of keeping defendant away from influences that would engage her in further criminal activity).

 [73]. United States v. Alexander, 509 F.3d 253, 256–58 (6th Cir. 2007) (approving a requirement that defendant live hundreds of miles away from the city where his child and other family members reside after defendant had committed five supervised-release violations); United States v. Rantanen, 684 Fed. Appx. 517, 520–22 (6th Cir. 2017) (mem.) (upholding a special banishment condition from a county because geographic restrictions are expressly authorized by federal sentencing guidelines set out in 18 U.S.C. § 3563(b)(13) and the county restriction was not plain error despite the court’s discomfort with the nine-year length of banishment and lack of exceptions, such as obtaining permission to enter the county).

 [74]. United States v. Watson, 582 F.3d 974, 985 (9th Cir. 2009) (holding that a condition of supervised release to not return to San Francisco or a county for the entirety of defendant’s supervised release without permission of the probation officer was reasonably related to goals of rehabilitation and deterrence and was no broader than reasonably necessary to serve those purposes).

 [75]. United States v. Cothran, 855 F.2d 749, 753 (11th Cir. 1988) (upholding a banishment from a county because it was expressly authorized by statute and “simply not contrary to public policy”).

 [76]. Watts v. Brewer, No. 2:09cv122-KS-MTP, 2012 U.S. Dist. LEXIS 52775, at *26 (S.D. Miss. Mar. 16, 2012) (upholding a sentence suspended on condition defendant remain outside a hundred-mile radius from the courthouse because such a condition did not violate any constitutional rights).

 [77]. See infra notes 7176.

 [78]. See Peter Edgerton, Comment, Banishment and the Right to Live Where You Want, 74 U. Chi. L. Rev. 1023, 1039–40 (2007) (listing various definitions of banishment found in multiple legal dictionaries); Matthew D. Borrelli, Note, Banishment: The Constitutional and Public Policy Arguments Against This Revived Ancient Punishment, 36 Suffolk U. L. Rev. 469, 480–81 (2002–2003) (“The broadened definition of probation allows states to avoid calling punishment ‘banishment’ and escape the regulations that the courts set as precedent. This creates potential confusion over what banishment entails . . . .” (footnote omitted)).

 [79]. State v. James, 978 P.2d 415, 419 (Or. Ct. App 1999) (quoting Black’s Law Dictionary 131 (5th ed. 1979)).

 [80]. Reeves v. State, 5 S.W.3d 41, 45 (Ark. 1999) (quoting State v. Culp, 226 S.E.2d 841, 842 (N.C. Ct. App. 1976)).

 [81]. Key v. State, No. 01-01-01051-CR, 2002 Tex. App. LEXIS 7980, at *7 (Tex. Ct. App. Nov. 7, 2002) (unpublished) (holding that conditions requiring defendant to serve community supervision in a particular county and obtain permission to enter a separate county do not constitute banishment and are therefore valid).

 [82]. Johnson v. City of Cincinnati, 310 F.3d 484, 506 (6th Cir. 2002).

 [83]. Id. at 503.

 [84]. Id. at 498.

 [85]. Ketchum v. West Memphis, 974 F.2d 81, 83 (8th Cir. 1992).

 [86]. See, e.g., State v. Schimelpfenig, 115 P.3d 338, 339 (Wash. Ct. App. 2005) (“At the most, banishment orders encroach on an individual’s constitutional right to travel, which includes the right to travel within a state.”).

 [87]. Reeves v. State, 5 S.W.3d 41, 45 (Ark. 1999) (holding a seven-year exile from the state as a condition of probation is, among other things, “repugnant to the underlying policy of the probation law, which is to rehabilitate offenders without compromising public safety” (quoting State v. Young, 154 N.W.2d 699, 702 (1967)).

 [88]. See, e.g., People v. Baum, 231 N.W. 95, 96 (Mich. 1930) (“[Banishment] is impliedly prohibited by public policy.”).

 [89]. See e.g., People v. Blakeman, 339 P.2d 202, 202–03 (Cal. Ct. App. 1959) (“It was beyond the power of the court to impose banishment as a condition of probation. The provision therefor was a void and separable part of the order granting probation.”).

 [90]. In re Babak S., 22 Cal. Rptr. 2d 893, 898 (Ct. App. 1993); State v. Schimelpfenig, 115 P.3d 338, 339 (Wash. Ct. App. 2005).

 [91]. Shapiro v. Thompson, 394 U.S. 618, 629 (1969).

 [92]. Borrelli, supra note 78, 473; see also United States v. Soltero, 510 F.3d 858, 866 (9th Cir. 2007) (“A restriction on a defendant’s [constitutional right] is nonetheless valid if it: (1) ‘is reasonably related’ to the goals of deterrence, protection of the public, and/or defendant rehabilitation; (2) ‘involves no greater deprivation of liberty than is reasonably necessary’ to achieve these goals; and (3) ‘is consistent with any pertinent policy statements issued by the Sentencing Commission . . . .’ ” (citations omitted)).

 [93]. See, e.g., State v. Morgan, 389 So. 2d 364, 366 (La. 1980) (“[T]he condition of probation [of banishment from French Quarter neighborhood] is reasonably related to Ms. Morgan’s rehabilitation.”).

 [94]. See, e.g., Schimelpfenig, 115 P.3d at 339 (Wash. Ct. App. 2005) (“Because of its constitutional implications, we apply strict scrutiny in reviewing a banishment order.”).

 [95]. Morrissey v. Brewer, 408 U.S. 471, 478 (1972).

 [96]. Haffke, supra note 51, at 919.

 [97]. Id. at 921; see also Johnson v. City of Cincinnati, 310 F.3d 484, 496 (6th Cir. 2002) (“The Supreme Court has not yet addressed whether the Constitution also protects a right to intrastate travel.”).

 [98]. In re White, 158 Cal. Rptr. 562, 567 (Ct. App. 1979) (holding that the intrastate right to travel, including an intramunicipal right to travel, are protected by the United States and California Constitutions).

 [99]. Johnson, 310 F.3d at 498 (“In view of the historical endorsement of a right to intrastate travel and the practical necessity of such a right, we hold that the Constitution protects a right to travel locally through public spaces and roadways.”).

 [100]. Haffke, supra note 51, at 922.

 [101]. In re White, 158 Cal. Rptr. at 567 (emphasis added).

 [102]. King v. New Rochelle Mun. Hous. Auth., 442 F.2d 646, 648 (2d Cir. 1971).

 [103]. See, e.g., State v. Nienhardt, 537 N.W.2d 123, 125–26 (Wis. Ct. App. 1995).

 [104]. State v. Schimelpfenig, 115 P.3d 338, 340–41 (Wash. Ct. App. 2005) (citing the following factors: “(1) whether the restriction is related to protecting the safety of the victim or witness of the underlying offense; (2) whether the restriction is punitive and unrelated to rehabilitation; (3) whether the restriction is unduly severe and restrictive because the defendant resides or is employed in the area from which he is banished; (4) whether the defendant may petition the court to temporarily lift the restriction if necessary; and (5) whether less restrictive means are available to satisfy the State’s compelling interest”).

 [105]. Mackey v. State, 37 So. 3d 1161, 1165 (Miss. 2010) (“[T]he banishment provision herein bears a reasonable relationship to the purposes of the suspended sentence or probation, that the ends of justice and the best interest of the public and the Defendant will be served by such banishment during the period of the suspended sentence, that the banishment provision of the suspended sentence does not violate the public policy of the State of Mississippi, that the banishment provision of the suspended sentence herein does not defeat the rehabilitative purpose of the probation and/or suspended sentence, and such provision does not violate the Defendant’s rights under the First, Fifth, and Fourteenth Amendments of the United States Constitution.” (citation omitted)).

 [106]. Johnson v. State, 672 S.W.2d 621, 623 (Tex. Ct. App. 1984).

 [107]. State v. Nienhardt, 537 N.W.2d 123, 125–26 (Wis. Ct. App. 1995).

 [108]. Borrelli, supra note 78, at 478–79; Haffke, supra note 51, at 910.

 [109]. People v. Baum, 231 N.W. 95, 96 (Mich. 1930); see also State v. Sanchez, 462 So. 2d 1304, 1310 (La. Ct. App. 1985) (“[T]he portion of trial judge’s sentence in the instant case which imposes banishment as a special condition of probation is unconstitutional.”); State v. Doughtie, 74 S.E.2d 922, 924 (N.C. 1922) (holding that a suspended sentence conditioned upon a two-year exile from the state for was void because it was effectively a banishment and such punishment is “not sound public policy to make other states a dumping ground for our criminals”).

 [110]. Snider, supra note 55, at 467–68; see also Rutherford v. Blankenship, 468 F. Supp. 1357, 1360 (W.D. Va. 1979) (“[Banishment] is impliedly prohibited by public policy.” (citing People v. Baum, 231 N.W. 95 (Mich. 1930))); Doughtie, 74 S.E.2d at 924 (N.C. 1953); State v. Charlton, 846 P.2d 341, 344 (N.M. Ct. App. 1992) (quoting Baum to support holding that state banishment violates public policy); State v. Gilliam, 262 S.E.2d 923, 924 (S.C. 1980) (holding a suspension of sentence conditioned on indefinite banishment from the state was invalid because it was beyond the power of a circuit judge and “such a sentence is impliedly prohibited by public policy”).

 [111]. Ex parte Scarborough, 173 P.2d 825, 827 (Cal. Dist. Ct. App. 1946) (“The same principle which prohibits the banishment of a criminal from a state or from the United States applies with equal force to a county or city.”).

 [112]. State v. Collett, 208 S.E.2d 472, 474 (Ga. 1974); Cobb v. State, 437 So. 2d 1218, 1221 (Miss. 1983).

 [113]. Snider, supra note 55, at 466.

 [114]. Brown v. State, 660 So. 2d 235, 236 (Ala. Crim. App. 1998) (“No. Our statutes do not permit courts to impose sentences of banishment. Such an agreement is beyond the jurisdiction of the court and is void.”); Ex parte Scarborough, 173 P.2d at 826; see also State ex rel. Baldwin v. Alsbury, 223 So. 2d 546, 547 (Fla. 1969) (“The court was without power to indefinitely suspend a sentence in return for petitioner’s promise to stay out of town.”); Weigand v Kentucky, 397 S.W.2d 780, 781 (Ky. 1965) (“The Commonwealth concedes it is beyond the power of a court to inflict banishment as an alternative to imprisonment.”); Bird v. State, 190 A.2d 804, 438 (Md. Ct. App. 1963) (“We hold therefore that the suspension of sentence conditioned on banishment was beyond the power of the trial court and void . . . .”).

 [115]. Reeves v. State, 5 S.W.3d 41, 45 (Ark. 1999) (quoting State v. Culp, 226 S.E.2d 841, 842 (N.C. Ct. App. 1976)).

 [116]. See, e.g., Metro. Wash. Council of Gov’ts, Homelessness in Metropolitan Washington 21–22 (2017) (noting that 22 percent of single homeless adults and 32 percent of adults in homeless families are employed).

 [117]. Katherine Beckett & Steve Herbert, Banished: The New Social Control in Urban America 115–16 (2010) (“For many others, though, the fear of going to jail was simply not enough to compel compliance [with exclusion orders]. This was not because they particularly enjoyed jail, but rather that the locales from which they were excluded housed many important amenities, including social networks, contacts, and relationships; social services; a sense of safety and security; and a place they called home.”).

 [118]. Id. “[The judge] said, ‘Oh, there are other places.’ I said, ‘Your Honor, I don’t know how, understand? This is my home.’” Id. at 115 (alteration in original). “I mean as far as being homeless, that’s the only area you know.” Id.

 [119]. Warren v. State, 706 So. 2d 1316, 1318 (Ala. Crim. App. 1997) (holding that it made no difference that the defendant had agreed to this condition as a term of his negotiated plea agreement because the defendant could not consent to a sentence that was beyond the authority of the trial court).

 [120]. In re White, 158 Cal. Rptr. 562, 556–57 (Ct. App. 1979).

 [121]. United States v. Consuelo-Gonzalez, 521 F.2d 259, 265 (9th Cir. 1975).

 [122]. See Beckett & Herbert, supra note 117, at 114. (“Many reported that they resisted their banishment order because they needed access to important services. In particular, both parks and [exclusionary] zones housed services that rendered compliance with an exclusion order impractical . . . .”).

 [123]. People v. Baum, 231 N.W. 95, 96 (Mich. 1930).

 [124]. Manhattan Beach, Cal., Municipal Code § 4.140.130 (2019).

 [125]. Warren v. State, 706 So. 2d 1316,  1318 (Ala. Crim. App. 1997) (holding that it made no difference that the defendant had agreed to this condition as a term of his negotiated plea agreement because the defendant could not consent to a sentence that was beyond the authority of the trial court).

 [126]. “[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave . . . .” United States v. Mendenhall, 446 U.S. 544, 554 (1980). In this case a reasonable person would not have believed he was free to leave. Moreover, under Martin, a homeless individual caught sleeping outside may not be prosecuted in Manhattan Beach because it has no shelter beds. Therefore, an arrest is improper and transportation to a nearby shelter would constitute a seizure.

Rethinking Racial Entitlements: From Epithet to Theory – Article by Tristin K. Green

Article | Race and Legal Theory
Rethinking Racial Entitlements: From Epithet to Theory
by Tristin K. Green*

From Vol. 93, No. 2 (January 2020)
93 S. Cal. L. Rev. 217 (2020)

Keywords: Racial Entitlements, Voting Rights Act, Affirmative Action, Title VII

Abstract

From warnings of the “entitlement epidemic” brewing in our homes to accusations that Barack Obama “replac[ed] our merit-based society with an Entitlement Society,” entitlements carry new meaning these days, with particular negative psychological and behavioral connotation. As Mitt Romney once put it, entitlements “can only foster passivity and sloth.” For conservatives, racial entitlements emerge in this milieu as one insidious form of entitlements. In 2013, Justice Scalia, for example, famously declared the Voting Rights Act a racial entitlement, as he had labeled affirmative action several decades before.

In this Article, I draw upon and upend the concept of racial entitlement as it is used in modern political and judicial discourse, taking the concept from mere epithet to theory and setting the stage for future empirical work. Building on research in the social sciences on psychological entitlement and also on theories and research from sociology on group-based perceptions and actions, I define a racial entitlement as a state-provided or backed benefit from which emerges a belief of self-deservedness based on membership in a racial category alone. Contrary to what conservatives who use the term would have us believe, I argue that racial entitlements can be identified only by examining government policies as they interact with social expectations. I explain why the Voting Rights Act and affirmative action are not likely to amount to racial entitlements for blacks and racial minorities, and I present one way in which antidiscrimination law today may amount to a racial entitlement—for whites.

Theorizing racial entitlements allows us a language to more accurately describe some of the circumstances under which racial subordination and conflict emerge. More importantly, it gives us a concrete sense of one way in which laws can interact with people to entrench inequality and foster conflict. It uncovers the psychological and emotional elements of racial entitlements that can turn seemingly neutral laws as well as those that explicitly rely on racial classifications against broader nondiscrimination goals. This conceptual gain, in turn, can open up new avenues for research and thought. And it can provide practical payoff: ability to isolate laws or government programs that are likely to amount to racial entitlements for targeted change.

*. Professor of Law, University of San Francisco School of Law. This Article benefited from participation in the UCLA Critical Race Studies Symposium: Whiteness as Property (2014), where I first presented the idea, and the panel on Law, Discrimination, and Constructions of Inequality at the Annual Law and Society Meeting in Mexico City (2017), as well as from presentations at the University of Washington School of Law and USF School of Law. I also owe thanks to Rachel Arnow-Richman, Angela Harris, Peter Honigsberg, Osamudia James, Yvonne Lindgren, Orly Lobel, Rhonda Magee, Gowri Ramachandran, Jalen Russell, Leticia Saucedo, Michelle Travis, and Deborah Widiss for feedback on drafts. Most of all, thanks to Camille Gear Rich for intense re-tooling and inspired conversation about racial entitlements and more.

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Confessions of a Teenage Defendant: Why a New Legal Rule Is Necessary to Guide the Evaluation of Juvenile Confessions – Note by Hannah Brudney

Note | Criminal Law
Confessions of a Teenage Defendant: Why a New Legal Rule
Is Necessary to Guide the Evaluation of Juvenile Confessions

by Hannah Brudney*

From Vol. 92, No. 5 (July 2019)
92 S. Cal. L. Rev. 1235 (2019)

Keywords: Criminal Law, Juvenile Confessions, Civil Rights

The cases of the “Central Park Five” and Brendan Dassey are two of the highest profile criminal cases in the past three decades. Both cases unsurprisingly captured the nation’s attention and became the subjects of several documentaries. Each case forces the public to consider how police officers could mistakenly identify and interrogate an innocent suspect, how an innocent person could feel compelled to falsely confess, and how our legal system could allow the false and coerced confession of a child to be the basis of a criminal conviction. While these two cases made national headlines, they are not unique. False confessions by juveniles are a common and even inevitable occurrence given the impact of the interrogation process on children and the inadequacies of the legal standard that currently exists to protect against juvenile false confessions.

Part I of this Note will discuss the prevalence of false confessions among juvenile suspects, and explain how juveniles’ transient developmental weaknesses make them particularly vulnerable to specific coercive interrogation techniques. Part I will also emphasize the impact that a confession has on the outcome of a defendant’s trial, thereby highlighting the weight that a false confession carries.

Part II of this Note will present the existing law governing the evaluation of the voluntariness of a confession—the procedural safeguards offered by Miranda v. Arizona and the totality of the circumstances test rooted in the concern for due process. Part II will also argue that the totality of the circumstances test is insufficient to protect juveniles because it does not give binding weight to a suspect’s age, but rather considers age among several other characteristics.

Part III of this Note will propose a new legal rule to guide the evaluation of juvenile confessions. The proposed legal rule extends and expands upon the language and holding from J.D.B. v. North Carolina, and requires that age be the primary factor in courts’ evaluations of juvenile confessions. Confessions offered by children during interrogations in which coercive techniques are employed must be presumed involuntary, given the effect that manipulative interrogation techniques have on juveniles’ likelihood to falsely confess. Moreover, given that courts often have no way of knowing the circumstances of an interrogation, confessions by all juveniles should be presumed involuntary until the prosecution can prove that no coercive interrogation techniques were used. Part III also proposes a series of policy reforms that aim to reduce the prevalence of false confessions.

*. Senior Submissions Editor, Southern California Law Review, Volume 92; J.D. 2019, University of Southern California Gould School of Law; B.A. English Literature and Psychology 2014, Columbia University. I would like to thank Professor Dan Simon for his advice and guidance, as well as the members of the Southern California Law Review for their excellent editing.

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Just Transitions – Article by Ann M. Eisenberg

From Volume 92, Number 2 (January 2019)
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Just Transitions

Ann M. Eisenberg[*]

 The transition to a low-carbon society will have winners and losers as the costs and benefits of decarbonization fall unevenly on different communities. This potential collateral damage has prompted calls for a “just transition” to a green economy. While the term, “just transition,” is increasingly prevalent in the public discourse, it remains under-discussed and poorly defined in legal literature, preventing it from helping catalyze fair decarbonization. This Article seeks to define the term, test its validity, and articulate its relationship with law so the idea can meet its potential.

The Article is the first to disambiguate and assess two main rhetorical usages of “just transition.” I argue that legal scholars should recognize it as a term of art that evolved in the labor movement, first known as a “superfund for workers.” In the climate change context, I therefore define a just transition as the principle of easing the burden decarbonization poses to those who depend on high-carbon industries. This definition provides clarity and can help law engage with fields that already recognize just transitions as a labor concept.

I argue further that the labor-driven just transition concept is both justified and essential in light of today’s deep political polarization and “jobs-versus-environment” tensions. First, it can incorporate much-needed economic equity considerations into environmental decisionmaking. Second, it can inform a modernized alternative to the environmental law apparatus, which must evolve to transcend disciplines. Third, it offers an avenue for climate reform through coalition-building between labor and environmental interests. I offer guidance for effectuating the principle by synthesizing instances of its embodiment in law in the Trade Act of 1974 (assisting manufacturing communities), the President’s Northwest Forest Plan (assisting timber communities), the Tobacco Transition Payment Program (assisting tobacco farmers), and the POWER Initiative (assisting coal communities), among other examples.

TABLE OF CONTENTS

Introduction

I. What is a “Just Transition”? Background and Rhetoric

A. The Transition to a Low-Carbon Economy and the Transition’s Potential Consequences

B. Defining a “Just Transition”

II. Can a Law of Just Transitions Be Justified?

A. An Environmental Theory of Just Transitions

B. Fossil Fuel-Dependent Communities: An Exemplary
Case Study for Just Transitions

C. A Political Economy Theory of Just Transitions

III. Just Transitions as Law: Filling in the
Contours

A. Federal Transitional Policies

1. The Trade Act of 1974

2. The President’s Northwest Forest Plan

3. The Tobacco Transition Payment Program

4. The POWER Initiative

B. Synthesizing Federal Transitional Policies

C. Locally-Driven Transitions

D. Additional Considerations for Pursuing Just
Transitions

Conclusion

 

Introduction

Political obstacles notwithstanding, many in the United States agree that carbon emissions must be quickly and dramatically reduced in order to avoid further catastrophic effects of climate change. Whether the path to a decarbonized world is more winding or straightforward, the effects of a transition to a low-carbon society will fall unevenly on many communities, which raises serious normative questions of justice.[1] In response to this concern, many call for a “just transition” to a low-carbon future.[2] While this phrase has gained significant traction,[3] its meaning remains unclear.[4]

“Just transition” has at least two primary usages. First, the phrase is used to mean that the transition to a low-carbon society should be fair to the most vulnerable populations.[5] The current fossil fuel-based economy has been characterized by inequality and environmental injustice, or environmental hazards that are inequitably distributed.[6] The new, low-carbon economy should not repeat or exacerbate these injustices; in fact, the transition is a new opportunity, indeed an obligation, to counteract them.[7]

The second meaning of “just transition” calls for protecting workers and communities who depend on high-carbon industries from bearing an undue burden  of the costs of decarbonization.[8] It proposes that the shift to a low-carbon economy will affect certain livelihoods disproportionately, and that this impact should be mitigated.[9] As one labor advocate explains, a just transition “means tackling climate change in a way that respects workers.”[10]

This Article demonstrates that the latter, labor-driven concept of a just transition is not only justified but is key to overcoming many of the obstacles that plague climate reform. Environmental policy remains thwarted by a variety of problems old and new. Longstanding “jobs-versus environment” tensions persist, as well as the more general notion that environmental protection represents a zero-sum game with winners and losers.[11] Even before the current presidential administration, scholarship contemplated the future of environmental law in an era of legislative stagnation.[12] Many have called for environmental law to adapt to the times by reshaping itself in various ways—letting go of some of its traditional emphases,[13] crossing over into other doctrinal areas,[14] and becoming more malleable in one manner or another in order to better interact with the political, economic, and social realities of a complex world.[15]

The labor-driven concept of a just transition is powerfully poised to address these deep concerns if scholars and policymakers embrace it. First and most clearly, it reroutes jobs-versus-environment tensions into a principle of “jobs and environment,” taking one of the longstanding thorns in environmentalism’s side and marshaling it toward productive pathways.[16] Second, by blurring the boundaries between environmental law and labor law, it can help align environmental decisionmaking more with the realities of complex social-ecological systems.[17] Third, by aligning environmental interests with labor concerns, it creates potential for coalition-building, thus informing both the ends of climate policy and the ever-elusive means for achieving it.[18] Finally, in an age of dramatic populist alienation,[19] it would inject much-needed economic equity considerations into environmental decisionmaking.

The Article also demonstrates that it is worth choosing one meaning for this term and that the labor-driven meaning makes more sense than the alternative. “Just transition” is a term of art that evolved in the labor movement, first known as a “superfund for workers.”[20] Its specificity gives it potency, and it has already gained traction in other disciplines and with major international organizations.[21] The broader usage, while important, seems redundant alongside comparable but better-known concepts, such as climate justice and energy justice.[22] It is confusing and less productive for different disciplines, and different scholars within law, to use the same term with different understandings of its meaning.[23]

I therefore argue that in the context of climate change, the just transition concept should be defined as some form of help for fossil fuel workers. Yet the broadest theoretical impetus for this help goes beyond environmental law. The just transition is an equitable principle of easing the burden that publicly-driven displacement poses to workers and communities who are highly dependent on a particular industry, especially a hazardous one. The theory has flavors of an estoppel concept, an unclean hands argument, or something akin to a call for takings compensation.[24] It is a principle of distributive economic justice, insisting that those displaced should not alone sustain their economic losses. This idea arises most frequently in response to environmental progress, but it bears relevance to other contexts as well.[25]

The prospect of a law of just transitions raises many questions, however, some of which labor law scholar David Doorey has begun to explore in a germinal article examining the desirability of a potential new field combining aspects of labor law, environmental law, and environmental justice.[26] How would just transitions relate to other models of distributive justice, such as environmental justice, which maintains that the burdens of pollution should be less discriminatorily and more equitably distributed?[27] How would it relate to sustainable development, which aims to reconcile environmental and economic considerations?[28] Would it merely create new employment opportunities when climate-related regulations affect a certain sector, or is it what one union president called it—“a really nice funeral”?[29] Must there be a causal link between regulatory initiatives and impacts on jobs, or does a just transition also concern industry contractions that stem from market forces?[30] Can the two be meaningfully differentiated?[31]

This Article attempts to answer these questions. Part I provides background necessary for understanding the just transitions concepts, disambiguates the two different usages of the term, and argues that legal scholarship should embrace the labor-driven definition. Part II explores three avenues that could serve as theoretical justifications for the labor-driven just transition principle in the context of climate change. Based on a theory of distributive environmental decisionmaking, the history of injustice in coalfield communities, and principles of political economy and interest-group theory, the discussion concludes that the labor-driven just transition principle is indeed legitimate, consistent with relevant norms, and necessary in the face of climate change. Part III synthesizes major federal transitional policies of the past several decades and argues that an effective law and policy of just transitions, especially when targeting regional displacement, must do more to untangle and address the complex, intertwined factors that shape communities’ dependency relationships with particular industries.

The stakes of this inquiry are high. Coal miners have become a symbol for broader national divisions, and commentators still strive to understand the “urban/rural divide” that made its way into the national consciousness via the 2016 presidential election. This analysis offers insights for the plight of coal miners and other rural communities, as well as certain workers’ relationship with environmentalism and climate policy. It also implicates a reconsideration of work, workplace safety, well-paying jobs, abrupt societal change, and private and public accountability for many workers’ abject vulnerability in a period that has been contemplated as a “new Lochner era.”[32] Major social and economic changes will continue to come. Scholars and policymakers would be well-advised to contemplate more robust transitional policy and baseline protections in light of the despair and instability unmitigated transitions can yield.

I.  What is a “Just Transition”? Background and Rhetoric

A.  The Transition to a Low-Carbon Economy and the Transition’s Potential Consequences

The term “just transition” tends to arise in two contexts. Some use the expression to refer to more general principles of equity in the transition to a low-carbon economy.[33] In other words, the shift to a low-carbon economy is an opportunity to rectify the injustices of the fossil fuel economy, and to not do so, or to allow inequalities to worsen, would itself effectuate injustice. On the other hand, some use the expression to refer to the nexus of labor and environmental reform, or the approach of taking work and jobs into account in or after environmental decisionmaking.[34] Yet both meanings derive from overlapping circumstances.

First, the fossil fuel-based economy characterizing the past century has had many casualties.[35] They run the full gamut from a child developing asthma in rural Australia,[36] to executions of community advocates in Nigeria,[37] to fishermen’s damaged livelihoods in the U.S. Gulf,[38] to victims of geopolitical machinations, including war.[39] People of color, indigenous communities, and people living in poverty have borne the worst burdens of the fossil fuel economy, in large part because of energy production.[40] The ultimate “externality” is, of course, climate change, the impacts of which we are already beginning to feel.[41]

The global community is currently experiencing substantial momentum toward a low-carbon, “clean energy” economy.[42] This transition is driven in part by a prevalent desire to mitigate climate change, both in the United States and elsewhere.[43] While the U.S. federal government is hostile to environmental regulation,[44] many U.S. states, cities, and institutions have confirmed their ongoing commitment to reducing carbon emissions.[45] For instance, “[d]ays after President Trump announced that he would be pulling the U.S. out of a global agreement to fight climate change, more than 1,200 business leaders, mayors, governors and college presidents . . . signaled their personal commitment to the goal of reducing emissions.”[46] The transition is also driven by market forces and concomitant evolutions in policy forces—with “widespread recognition, including among utilities, that low-carbon policy drivers are here to stay.”[47] Internationally, countries have taken the opposite approach to the Trump administration’s, such as with China’s plan to invest $360 billion in renewable energy by 2020.[48] Altogether, these factors have compelled some commentators to deem the transition to a low-carbon society “inevitable.”[49]

Nevertheless, a world with low carbon emissions does not somehow transform into a utopia. A shift to a clean-energy economy stands to perpetuate or exacerbate current patterns of inequity. Those patterns could specifically relate to low-carbon industries, for instance, through land theft to develop wind and solar farms, forced labor to extract the natural resources necessary to create solar panels, or impositions of health hazards from biomass fuels.[50] The patterns could also arise in other contexts in the low-carbon world, such us through inequitable access to clean energy.[51]

While these novel risks have begun to receive more attention in dialogues on climate change and the clean-energy transition, so, too, has the slightly more controversial question of “jobs.” “Jobs versus environment” tensions surround nearly every environmental policy debate.[52] Industry advocates and workers argue frequently that environmental reform will destroy individual livelihoods and communities’ entire way of life.[53]

Environmental groups—who have good reason to be cynical—have historically responded to these claims with dismissiveness.[54] Environmental advocates have argued that concerns about jobs are either industry propaganda or misinformed in some way.[55] Complaints that environmental reforms undermine jobs thus often encounter arguments that job losses are not as bad as claimed, or even if they are, environmental reform provides a net benefit to all that outweighs the cost of a few lost jobs.[56]

This tension raises the question: do environmental regulations cause people to lose their jobs—with “lost jobs” often used as a rhetorical stand-in for lost good jobs?[57] And if they do, does the benefit to the greater good offset the lost jobs? These questions are more complicated than they may seem. A first, critical point is that the changes that are necessary for the United States to reduce its greenhouse gas emissions adequately are dramatic.[58] Thus, climate reform that is meaningfully suited to climate change is not the same as the incremental environmental reforms of the past. According to one interpretation, carbon emissions in the United States need to decline by 40% over the next twenty years.[59] Methane and other greenhouse gas emissions also need to be reduced at some level.[60] “To accomplish this goal will require across-the-board cuts in both production and consumption in all domestic fossil fuel sectors”[61] and likely, in other industries as well.[62]

The “transition” is therefore a new era, which could involve a relatively rapid restructuring of society. This rapid restructuring could involve quicker, more extreme contractions of certain industries. According to economists Robert Pollin and Brian Callaci, in this scenario, “workers and communities whose livelihoods depend on the fossil fuel industry will unavoidably lose out in the clean energy transition. Unless strong policies are advanced to support these workers, they will face layoffs, falling incomes, and declining public-sector budgets to support schools, health clinics, and public safety.”[63]

Yet even if the transition to a clean-energy economy involves more incremental changes, it is worth contemplating whether the environmental movement has itself periodically had a misinformed stance on the question of work. As many have pointed out, environmental regulations have been shown not to result in a net loss of jobs for a given society and may in fact produce net gains in employment.[64] This may seem to support the “greater good” argument. Indeed, the clean-energy transition is anticipated to yield dramatic growth in the ever-burgeoning green energy sector, creating millions of new jobs over the course of the coming decades.[65]

However, regulations and other measures have at times also been shown to catalyze job losses for discrete regions and sectors.[66] Viewed through a legal geographies lens—which holds that questions of scale, scope, and place may show that what is “just” at one level is “unjust” at another[67]—this collateral damage of environmental reform does seem more problematic. As one commentator articulated, “[i]f you’re a coal miner in West Virginia, it’s not a great comfort that a bunch of guys in Texas are employed doing natural gas.”[68] While industry advocates undoubtedly exploit, or sometimes invent, such harms, it is possible that the environmental movement has also turned a blind eye to them.

Do job losses that are not clearly the proximate cause of legal reform, but that stem from the evolution of market forces, also deserve attention? Society did not, after all, provide special support to the employees of Blockbuster when mail-order DVDs and online streaming took their place because those services were more convenient and in demand. Why should workers who lose in the transition to a low-carbon economy be given preferential treatment over the many other workers who lose in diverse, market-driven scenarios, if policymakers are not intentionally causing them to lose for the greater good?

The question of causation is addressed in more depth in the subsequent discussion, in which I argue that, especially in the energy sector, it is very difficult to disentangle causal forces among law, policy, and market operations. But further, workers’ dependency relationship with a particular industry and lack of alternative options may be what trigger the need for a just transition; in other words, equitable factors may drive this theory just as much, if not more, than causal ones. Yet, again, these tensions also raise the question of a possible choice between more robust transitional policies and more robust protections for workers and communities in general.

B.  Defining a “Just Transition”

The idea of a just transition originated with the labor movement in the late twentieth century, in part in response to the environmental movement.[69] Labor and environmental activist Tony Mazzocchi is credited with coining the term, with the original version called a “Superfund for Workers.”[70] Referencing the superfund—a federally-financed program to clean up toxic wastes in the environment—suggested Mazzocchi’s proposal was an analogous remedial measure, but for human beings. It was based on the idea that workers who had been exposed to toxic chemicals throughout their careers should be entitled to minimum incomes and education benefits to transition away from their hazardous jobs.[71] Mazzocchi believed “that both nuclear workers and toxic workers, ‘because of the danger of their jobs and their service to the country, should be entitled to full income and benefits for life even if their jobs are eliminated,’” although he later gave in to pressure to reduce his demand to four years of support.[72] After environmentalists complained that the word “superfund” “had too many negative connotations,” the proposal’s name was changed to “[j]ust [t]ransition.”[73]

In the 1970s and through his death in the early 2000s, Mazzocchi and his associates were involved in creating “powerful labor-environmental alliances” that pursued the just transition campaign with the hope of addressing “the jobs-versus-environment conundrum.”[74] He was “the first union president to negotiate partnerships with Greenpeace and the environmental justice communities.”[75] He also developed educational programs for workers on the environment.[76] Mazzocchi’s advocacy thus forms the basis of the modern iteration of the labor-driven “just transition” concept. This foundation shapes the term’s modern usage as the idea that workers and communities whose livelihoods will be lost because of an intentional shift away from hazardous activity deserve some sort of support through public policy.[77]

Meanwhile, the broader usage of “just transition” is of less certain origin. It appears to be the plain-language interpretation of the labor movement’s term of art, thereby calling for “justice” more generally, and not just for workers. In other words, it emphasizes the importance of not continuing to sacrifice the well-being of vulnerable groups for the sake of advantaging others, as has been the norm in the fossil-fuel-driven economy. Thus, the broad concept of a “just transition” may in fact be even more radical than the narrow one because the former calls for a grand restructuring of societal inequality.

This discussion focuses on the labor-driven usage of just transitions and argues that legal scholars should do the same for two main reasons, beyond the fact that it is confusing for scholars in different spheres to be using the same emergent term with different meanings, and in addition to the theoretical discussion below. First, the labor-related usage seems to predate the broad usage and to have gained more traction. Major international organizations have embraced the labor-related meaning. Just transitions for workers have been adopted as goals by the United Nations Environment Program, the International Labour Organization (“ILO”), and the World Health Organization.[78] In 2013, the ILO published a policy framework for a just transition, which focused specifically on workers, noting that “[s]ustainable development is only possible with the active engagement of the world of work.”[79]

In addition, the labor-related usage’s specificity makes it stand out. The broad call for justice shares similarities with other models used to call for equity in the face of climate change, including environmental justice, climate justice, and energy justice.[80] This overlap may suggest that the broad concept has less of a niche to fill than the narrow one, and more risk of redundancy. By contrast, the labor usage’s narrowness may give it more potency.[81] In other words, it is not clear what a broad call for a just transition adds to these powerful and better-known concepts of justice, which all relate directly to the low-carbon shift.

Scholarly commentary complicates the choice somewhat because the literature seems split between the two usages. The broad meaning appears in at least some social science and legal scholarship. In a 2012 book entitled Just Transitions, two sustainability scholars defined a just transition as one “that addresses the widening inequalities between the approximately one billion people who live on or below the poverty line and the billion or so who are responsible for over 80 percent of consumption expenditure.”[82] Environmental justice scholar Caroline Farrell has characterized a just transition as one that avoids “the problems with the fossil fuel economy . . . [and aims] to create a truly just economy,” or as a “transition to an economy that does not create disparate environmental impacts.”[83]

Sociologists, political scientists, and several legal scholars who have explored the labor-related meaning provide a solid foundation from which to continue examining it.[84] They have also begun filling in the contours of what, exactly, this usage of “just transitions” means. Rural sociologist Linda Lobao interprets a just transition as one that “mov[es coal] communities toward economic sectors that offer a better future.”[85] Interdisciplinary scholars Evans and Phelan define it more broadly as “a political campaign to ensure that the costs of environmental change [towards sustainability] will be shared fairly. Failure to create a just transition means that the cost of moves to sustainability will devolve wholly onto workers in targeted industries and their communities.[86]

In the legal sphere, David Doorey’s definition emphasizes work somewhat more. He explains the concept as “a policy platform that advocates legal and policy responses and planning that recognizes the need for economies to transition to lower carbon economic activity, while at the same time respects the need to promote decent work and a fair distribution of the risks and rewards associated with this transition.”[87] Climate law scholar J. Mijin Cha describes a just transition as “protecting workers who are impacted by climate protection policy,” including by re-training workers and providing them with education funds.[88] Ramo and Behles emphasize the need to recognize communities’ economic dependency on high-emissions activity as those communities transition away from that activity, suggesting, like Labao, that a just transition “help[s] revitalize . . . fossil-fuel dependent communities.”[89]

Calls for just transitions appear to arise the most in union advocacy, which again lends weight to the choice of the labor-driven definition. The International Trade Union Confederation has described a just transition as a “tool the trade union movement shares with the international community, aimed at smoothing the shift towards a more sustainable society and providing hope for the capacity of a ‘green economy’ to sustain decent jobs and livelihoods for all.”[90] Generally, just transitions advocates “highlight the need to engage affected workers and their representative trade unions in institutionalised formal consultations with relevant stakeholders including governments, employers and communities at national, regional and sectoral levels.”[91]

Despite the appearance of “justice” in the name of just transitions, few legal commentators have delved more deeply into the legitimacy, significance, or traits of the idea of a just transition. The next Part reviews Doorey’s article, further characterizes the labor-driven just transition concept, and explores what principles may or may not support the concept.

II.  Can a Law of Just Transitions Be Justified?

This Part asks whether incorporating the just transition principle into law is a worthwhile endeavor, theoretically and practically. Exploring three potential justifications for doing so—one based on environmental theory, one based on the experiences of coal communities, and one based on strategic considerations—the discussion reveals that pursuing just transitions is not merely a nice thing to do. Rather, this discussion supports the conclusion that the concept not only fits neatly within the sustainable development framework—an internationally accepted framework for reconciling competing interests in environmental decisionmaking—but that it in fact injects a long-overlooked, much-needed consideration of economic equity.[92] This Part argues further that coal communities are particularly worthy of attention because of their history of combined exploitation and dependence. This Part’s third argument relies on interest-group theory to propose that the pursuit of just transitions is desirable because it could unite environmental and labor groups around the goal of a potentially more attainable and more equitable climate policy than prior efforts have secured.

David Doorey’s article is the first piece of legal scholarship to explore the worthiness and potential contours of a body of Just Transitions Law (“JTL”). He notes that labor law scholars have “mostly ignored” the effects that climate change will have on labor markets, while environmental law scholars have generally disregarded labor relationships.[93] Because neither legal field seems adequately equipped to handle climate change, he considers whether a new field is needed that combines the strengths of each.[94]

Doorey suggests that areas of common ground between labor and environmental scholarship might be ripe for doctrinal synthesis, such as the fact that both are in the business of “impos[ing] a countervailing power on unbridled economic activity.”[95] Yet he also notes that “jobs versus environment” tensions and other conflicting interests have tended to keep the fields apart.[96] Without coming to a firm conclusion as to whether JTL is worthwhile as a new legal field, Doorey does conclude that a just transition strategy is critical in the face of climate change, and that “[t]o implement a just transition strategy, governments need to design policies that cross existing government ministerial portfolios and legal regimes.”[97]

Doorey explores three potential forms for a body of law that marries aspects of labor and environment, including: 1) “[a] [l]aw of [e]conomic [s]ubordination and [r]esistance” that combines environmental justice’s and labor law’s overlapping recognition of power relations and embrace of collective, bottom-up resistance;[98] 2) a law of “[h]uman [c]apital or [c]apacities,” which would assess the fairness of rules, both environmental and labor-related, based upon whether they further human capabilities and freedom; and 3) an explicitly-named body of “Just Transitions Law,” (“JTL”), which would draw upon existing just transitions policy strategies, such as the ILO’s, aimed at joint consideration of environmental and labor goals, including pursuing cross-sectoral collaboration, incentivizing sustainable industries, and offsetting impacts to workers affected by environmental policies.[99]

For his third proposal, the explicit body of JTL, Doorey provides three “normative claims (NC) drawn from climate science, environmental law, environmental justice, and labour law.”[100] They include:

Firstly, climate change is a pressing global problem that market forces alone will not adequately address. Therefore, states should respond through public policy and law (NC1). Secondly, public policy should encourage a transition towards greener, lower carbon economies (NC2). Thirdly, there will be social and economic costs and benefits associated with climate change, and with the transitional policies aimed at responding to it, and those costs and benefits will also not be equitably distributed by market forces alone. Therefore, governments should seek to minimize the economic and social harms associated with the desired transition to a greener economy, and attempt, through law and policy, to distribute those harms and any resulting benefits in an equitable manner (NC3).[101]

This discussion begins with Doorey’s third proposal and adopts his normative claims for reference. While his first two proposals have great appeal, his third one seems to capture the already-existing evolution of this area of law.

However, like with the broadly-defined just transition described above, one might ask what this set of normative claims adds to the concept of climate justice. A centerpiece of the evolving theory of climate justice is public policy geared toward equitable sharing of the burdens and benefits of climate change through transparent consultation with diverse stakeholders.[102] Climate justice also espouses recognition of the fact that some communities are more vulnerable to the effects of climate change than others, and are more likely to be excluded from benefits.[103]

In order to capture the potency that more specific concepts may yield, to avoid duplicative efforts, and to recognize the labor movement’s role in formulating this theory of justice, I would add a fourth normative claim to Doorey’s third proposal, whether explicitly or implicitly, which is justified in more depth below: the needs of the workers and communities that have developed dependency relationships with high-carbon industries, often with substantial past and present socioeconomic costs, should specifically factor into calculating the equitable distribution of harms and benefits in the transition to a decarbonized economy. This consideration is not proposed as a competitor to environmental justice, climate justice, or any other framework concerned with vulnerability. It is, rather, a call for the specific recognition of work and existing economic dependencies in the decarbonization process, which have often gone overlooked.

This discussion does not take up the question of whether JTL should be an entirely new area of law. Like Doorey’s, it is intended as an “early contribution” to this emerging field.[104] The discussion therefore explores instead whether the just transition principle is worthwhile, and how it could be incorporated into law—which is perhaps also a worthwhile consideration as an alternative to establishing a new legal field.

A.  An Environmental Theory of Just Transitions

The discussion in this Section argues that the labor-driven just transition concept has a natural and important place within current prominent distributive environmental decisionmaking frameworks. In other words, this discussion seeks to legitimize the concept and situate it in relevant literature. The discussion shows that the idea is neither foreign nor frivolous in relation to environmental theory. But further, I argue that it adds a point of consideration that other frameworks have tended to overlook, suggesting all the more that it is a worthwhile idea.

The just transition concept, understood in the context of climate change, is a call for distributive justice in (or after) environmental decisionmaking.[105] In order to understand or define it, then, it is important to assess it in relation to existing models for environmental distributive justice. Sustainable development and environmental justice are two of the most prominent of these models.[106] Each model strayed from traditional environmentalism, which is largely focused on pro-conservation, anti-pollution measures, in order to try to establish a framework that takes more socioeconomic realities into account, including the need for equitable distribution of benefits and burdens.[107]

Environmental injustice was originally known as environmental racism, calling attention to the fact that communities of color bear a disproportionate burden of environmental hazards.[108] Sustainable development, meanwhile, is a forward-looking decisionmaking paradigm that seeks to harmonize conservation priorities with economic considerations as well as social equity.[109] While environmental justice adds a civil rights component to environmentalism, sustainable development aims to mitigate standard development by incorporating historically overlooked priorities into development decisions.[110]

The just transition concept exhibits a significant parallel with environmental justice in that both ideas were born as social movements in the late twentieth century in response to the environmental movement.[111] Environmental justice calls for racial equity (and other forms of non-discrimination), while just transitions calls for labor equity. The movements are thus not dissimilar in that each advocates a distributive component on top of traditional environmentalism’s conservation priorities. Another parallel is that each is a broad, equitable principle that is at times embodied in laws in different ways. Yet the movements and legal schemes associated with each concept have rarely interacted, in part because of conflicting priorities and cultural backgrounds.[112]

Sustainable development, as compared to environmental justice, has perhaps more direct applicability to the question of work. The sustainable development approach aims to “capture[] the interrelationship between the environment, the economy, and human well-being in the effort to meet ‘the needs of the present without compromising the ability of future generations to meet their own needs.’”[113] In other words, it is “a decisionmaking framework to foster human well-being by ensuring that societies achieve development and environment goals at the same time.”[114] Sustainable development directly aims to undermine the fossil fuel economy. It thus, in turn, creates the need for a “just transition,” in that it is fundamentally premised on a shift to renewable energy sources.[115] Yet it also may provide tools for ensuring a just transition because of its concern for economic and equity-related priorities.

While sustainable development as a theory faces many criticisms, it is “not simply an academic or policy idea; it is the internationally accepted framework for maintaining and improving human quality of life.”[116] For instance, based on the overall aim of sustainable development, international frameworks have adopted as goals both poverty eradication and addressing “[t]he deep fault line that divides human society between the rich and the poor and the ever-increasing gap between the developed and developing worlds . . . .”[117] Sustainable development’s actual implementation takes on many forms, as the approach “needs to be realized in the particular economic, natural, and other settings of each specific country,”[118] as well as each specific state or city. “The key action principle of sustainable development is integrated decisionmaking. Essentially, decisionmakers must consider and advance environmental protection at the same time as they consider and advance their economic and social development goals.”[119] This contrasts with conventional development, where environmental concerns historically arose only as afterthoughts.[120]

Sustainable development decisionmaking is often represented as a triangle. Its three points are the economy, the environment, and equity or social justice.[121] The points are a simplified representation of the three values or priorities that sustainable development seeks to reconcile.[122] The standard sustainable development triangle is represented in Figure 1.


Figure 1
.  Sustainable Development Framework

 

The triangle represents an accessible conceptualization of the harmony that the decisionmaking paradigm seeks to achieve. In turn, these three values are embodied in law and policy in varied ways. For example, a traditional building code, reworked through the lens of sustainable development values, could transform into a “green” building code, prioritizing materials with minimal environmental impacts and low-carbon energy sources. The “equity” prong might dictate that new housing developments, as an example, should not only be green, but also affordable.

Environmental justice and sustainable development may seem like they occupy different spheres of environmental theory, but Uma Outka has observed that they have the potential for synergy. She notes a risk of conflict between the two models as the broader sustainable development agenda might prove insensitive to environmental justice concerns.[123] For instance, at the project level, sustainable development and environmental justice can face tensions, such as if the siting of wind farms (comporting with sustainable development’s driving concern for carbon reduction) harms indigenous cultural resources (violating environmental justice’s concern for communities’ autonomous decisionmaking and the non-discrimination principle).[124] Yet Outka argues that environmental justice in fact refines sustainable development by adding the particular environmental justice conception of equity.[125] She concludes that for sustainable development to be consistent with environmental justice, the significant differences among renewable energy sources require more recognition and concrete definition, so that each pathway’s potential for inequity can be better understood and addressed.[126]

 Outka’s articulation of this relationship can thus perhaps be represented by Figure 2 below, which highlights environmental justice as an aspect of the sustainable development framework at the nexus of the environment and equity points of the triangle. In other words, environmental justice becomes another value that must be harmonized with other values in environmental decisionmaking, including the three Es. As a principle of environmental equity, environmental justice aligns with sustainable development at the nexus of sustainable development’s environment and equity prongs.


Figure 2
.  Sustainable Development with Environmental Justice Refinement

 

Figure 2 is not meant to suggest that environmental justice is the only refinement to sustainable development, or the only point of interest on the environment-equity leg. However, in a decisionmaking framework that is intended to manage complex scenarios, understanding these relationships can help inform the characteristics of normative paradigms. Environmental justice is a call for environmental equity, and it has a natural locus in the sustainable development paradigm.

When viewed through the framework of sustainable development, just transitions no longer seems like such a foreign concept to environmental law. Primarily, environmental decisionmakers already have a framework for considering questions of economic equity as they relate to environmental decisionmaking. Just transitions, with its concern for avoiding or mitigating inequitable impacts to livelihoods in environmental decisions, is ultimately a doctrine of economic equity. Thus, a natural place for just transitions is running parallel to environmental justice and in the analogous position along the economic and equity side of the triangle, as shown in Figure 3.


Figure 3
.  Sustainable Development Framework with Environmental Justice and Just Transitions

 

This visualization is powerful because it suggests that, like environmental justice, a just transition is simply a refinement to a framework upon which decisionmakers already rely. While it might also be said to have already existed along the economy-equity side, it has largely gone unrecognized. Just as environmental justice is a principle of environmental equity that must be harmonized with other values, the just transition is a principle of economic equity that should also factor into the calculus—and it appears to have a natural place within that calculus.

Another reason this visualization is powerful is that it builds upon increasingly vocal calls for environmental justice to inform the transition to a low-carbon society.[127] These calls, in fact, circle back on the broad meaning of the just transition—the idea that the decarbonization process must be done fairly in general.[128] One may be concerned that these paradigms might all conflict with each other in the transition, or pose difficult zero-sum choices. The visualization in Figure 3 shows that these principles are complementary, and in fact, bring environmental decisionmaking toward a more holistic picture of societal needs.[129]

This visualization may also help reconcile some of the tensions between sustainable development theory and resilience theory. Resilience theory has emerged as a counter-framework to sustainable development.[130] Resilience theorists’ criticisms of sustainable development are that sustainable development assumes stationary, controllable circumstances; potentially sanctions current patterns of harmful development and an ethic of “green consumerism;” and fails to account for complexity, or the interrelatedness of complex social-ecological systems.[131] This latter point is particularly concerning to resilience theorists in the age of climate change, which will involve more drastic changes in ecological and social regimes than previously seen.[132] Resilience theorists instead advocate decisionmaking paradigms that are iterative, or ongoing, rather than traditional planning processes; that involve “principled flexibility;[133] and that anticipate constant change in social-ecological systems.[134] Adaptive management and adaptive governance have been considered potential vehicles for pursuing resilience governance, although scholars agree that a gap remains between theory and practice.[135]

Although the rift may be large, perhaps the addition of environmental justice and just transitions to the sustainable development framework brings sustainable development a modest inch closer to resilience thinking. The more points of interest that are added to the sustainable development framework, the more sustainable development would seem to wield potential for decisionmaking that accommodates social-ecological systems. Figure 4 illustrates that the framework above can in fact represent a continuum of social, economic, and natural concerns.[136] While there are infinite points of interest on the continuum, environmental justice and just transitions show points of particular concern based on society’s historical and potential inequities. If one recognizes that the sustainable development paradigm could have infinite points, the next natural inference must be an acceptance of uncertainty because infinite interacting aspects of social-ecological systems could never be stationary.


Figure 4
.  Making Sustainable Development Work for Social-Ecological Systems

 

In any case, the frameworks above show how the just transition concept has a natural place with several prominent environmental theories of today. But it can also follow the path of environmental justice and sustainable development in that it may at times be a principle warranting contemplation, rather than all or part of a framework in and of itself. Both environmental justice and sustainable development are “normative conceptual framework[s]” that are in turn embodied in law in various ways, sometimes simply as policy goals.[137] Just transitions can join their ranks as such a principle as well, offering an additional equitable priority, or a more concrete framework for decisionmaking.

In general, environmental law scholars have increasingly recognized the need to account for the jobs question, rather than to dismiss it.[138] As Richard Lazarus articulates, “there has been at best only an ad hoc accounting of how the benefits of environmental protection are spread among groups of persons.”[139] Environmental law scholars have recently contemplated how to overcome the perception and reality of “zero-sum” environmentalism, in which some segments of society must lose, or think they are losing, in pursuit of environmental progress.[140] This realization has come about at the same time as the recognition that environmental law is overall inadequate in the face of climate change.[141] The placement of just transitions into the framework above helps address both these concerns. It provides a way to think about contemplating livelihoods in environmental decisionmaking, as well as making decisionmaking align better with social-ecological systems.

B.  Fossil Fuel-Dependent Communities: An Exemplary Case Study for Just Transitions

The discussion in this Section examines what, exactly, is meant by “fossil fuel-dependent communities” and why they have prompted so much interest in just transitions in the climate change era. Many communities that depend on high-carbon industries have a unique history and relationship to work, and many have borne profound costs associated with energy production for over a century.[142] Yet the rest of society has alternately encouraged, acquiesced in, or benefited from this hazardous, economically depleting way of life.[143] Based on these troubling circumstances, this Section argues that the labor-driven just transition concept is legitimate because it is fair to these specific communities. A critical point is to understand that fossil fuel-dependent communities were not born in a vacuum. They were created. This discussion uses Appalachia as an example, but its story is relevant to comparable scenarios throughout the country.[144]

As early as the 1700s, companies played a central role in developing isolated Appalachian mono-economies, or monopsonies, where workers and communities became hostage to desperate dependency relationships.[145] The dependence stemmed in part from a rush of speculators in the 1800s seeking to acquire Appalachian land.[146] Locals, mostly subsistence farmers, did not know the worth of the minerals under their land and sold property interests for well under market value.[147] “Others who refused to sell their land became victims of legal traps, such as being jailed and then offered bond in exchange for their land.”[148]

Appalachia evolved into what some scholars call an “internal colony” or a “sacrifice zone,” which was “created to provide cheap resources to fuel the rest of the country.”[149] Companies dominated land ownership and isolated communities from penetration by other industries.[150] Through isolating people and dispossessing them of land, coal companies sought to turn local residents “into a docile workforce” that lived and breathed extractive work, residing in company towns and coal camps and paid in “scrip” instead of money.[151] While company towns are no longer the norm, the effects of these relationships are still felt in Appalachia today. Yet this was all in the name of “the greater good,”[152] with fossil fuel communities serving as the nation’s cheap energy powerhouse.[153]

Serving as the nation’s energy powerhouse has been costly. For decades, coal miners have lost their lives in and because of the mines.[154] Some of these deaths were in major disasters that caught the public’s attention, but most of them were a regular procession of daily accidents and health harms.[155] These hazards are not a phenomenon of history, either. “Between 1996 and 2005, nearly 10,000 miners died of black lung disease.”[156] As of this writing, black lung rates have in fact been rising.[157]  Yet the costs have not been limited to miners themselves. Residents living near mountaintop removal sites suffer high rates of disease and morbidity.[158] In addition to compromised health and safety, residents of fossil fuel communities have seen the destruction of irreplaceable cultural and ecological resources, as well as entrenched poverty and limited economic alternatives.[159]

Yet throughout the evolution of this exploitative dynamic, these relationships were encouraged and actively supported by the rest of the country through law and policy, evolving with the knowledge and acquiescence of the larger political body despite intermittent recognition of Appalachian problems. When coal miners sought to improve their conditions in the early twentieth century, federal actors intervened on behalf of companies.[160] In Hitchman Coal & Coke Co. v. Mitchell, the Supreme Court sanctioned mine operators’ power to contract with workers to prevent unionization.[161] In the 1921 Battle of Blair Mountain, the United States Army intervened to stop an uprising of miners, after which the Army left West Virginia to resolve the conflict internally, much to the detriment of the miners.[162] Black lung, a “chronicle of a preventable disease that was not prevented,” was ignored by state and federal public health authorities for most of the twentieth century “[d]espite the fact that physicians working among coal miners in the nineteenth century recognized and called attention to . . . [this] public health disaster.”[163] These egregious conditions notwithstanding, throughout the twentieth century, tax incentives and subsidies to the fossil fuel industry became a part of law.[164] As of 2017, the federal government continued to support fossil fuel production with $14.7 billion in subsidies, and state governments provided a total of $5.8 billion in incentives.[165]

Meanwhile, coal communities’ suffering was not unknown. Congress made a show of helping Appalachian residents with measures such as the Surface Mining Control and Reclamation Act (SMCRA). Yet SMCRA “has fallen far short of its potential;[166] indeed, with provisions providing for oversight by states known to be dominated by industry,[167] it could hardly be deemed an earnest effort to remedy Appalachian suffering. Similarly, the Black Lung Benefits Act of 1973 nominally addressed black lung, only to help a mere 7.6% of claimants in “a system that miners, unable to attract attorneys and financially incapable of matching the coal companies’ development of medical evidence, wholeheartedly despise[d] as unjust.”[168]

U.S. society thus has a decades-long tradition of propping up the fossil fuel industry and acquiescing in its creation of exploitative mono-economies. Viewed in this light, workers’ and communities’ anticipation or hope that support might continue for their sole economic lifeline seems less unreasonable than if one views that anticipation standing alone in the context of today’s changed markets, or viewed through the lens of communities with more resources or alternative options.[169] The argument that fossil fuels are harmful and that people simply have to find other jobs overlooks a longstanding history of exploitation and isolation, an abusive tradition from which the majority has benefited. A swift, unmitigated shift away from these industries stands to exacerbate the injustices that fossil fuel communities have already experienced. The transition has, in fact, already begun, and fossil fuel communities have not fared well.[170] Coal country has already lost a substantial portion of employment opportunities, and with those lost jobs have come lost tax resources, businesses, population, and spirit.[171]

One might argue that this is the nature of economic developments: markets change and workers and communities who bear the losses of those transitions must adapt, evolve, and potentially relocate. Yet attempts to distinguish between the public and private spheres in this context ring hollow. First, fossil fuel workers and communities have been engaged in what should be characterized as quasi-public activity.[172] While their contributions to the nation’s energy supply were through direct relationships with private companies, those companies were empowered by the public. The workers’ and communities’ labor and losses fueled a public electricity grid and provided fundamental public benefits for which they bore immeasurable externalized costs.

Second, one would be hard-pressed to disentangle the diverse public and private factors that converge to shape discrete sectors, especially in the energy context.[173] Many have pointed to the cheapness of natural gas as a driving force undermining the coal industry in order to suggest that coal’s decline is a private phenomenon not warranting mitigation.[174] However, Congress’s decision to impose minimal regulations on the natural gas industry was an intentional public policy development that shaped the status quo in foreseeable ways.[175]

These circumstances illustrate that, if nothing else, principles of fairness and equity weigh in favor of a just transition for these communities. Yet these principles also implicate some of the basic premises of our legal system. Communities’ expectations and reliance have been encouraged, even coerced, through law and policy. While formal legal avenues have been of little help to them—to demand, for instance, the delayed closure of a plant, collective compensation for environmental degradation to the region, or meaningful assistance with the black lung pandemic—the ethical impetus to help these communities transcends a mere nicety.

Several lines of scholarship have insisted upon the materiality of expectations at the community level. Joseph Sax was concerned with community reliance and formal property law’s silence on communities.[176] He argued “that the law offered no opportunity even to raise a question about the non-economic losses incurred when an established community is destroyed . . . for ‘just compensation’ includes only the value of the economic interests taken.”[177] He noted that:

there is a widespread sense that community is important, and a willingness exists to protect community interests; yet there is no principle or doctrine to which to turn in those cases where, for whatever reasons, the people affected are unable to generate the political support necessary to induce an act of grace.[178]

Sax argued that “[t]he idea of justice at the root of private property protections calls for identification of those expectations which the legal system ought to recognize,” including at the community level.[179]

The concern for community reliance evokes the related concern that frustrated expectations can lead to social instability and political upheaval.[180] For instance, Sax argued that the public trust doctrine was not merely a state’s obligation to conserve natural resources, as many understand it, but is also a means of marrying customs with formal law in order to respect common expectations and ward off social unrest.[181]

This line of thinking seems to suggest that where formal law fails to recognize the meaningful nature of coal communities’ reliance upon their way of life, the lens of first principles illuminates the way of life as meaningful and worth respecting. The reasons for undermining that way of life seem meaningful too. Fossil fuel communities have already been sacrificed for the sake of collective progress through their energy production activities. They stand to be sacrificed anew if their majoritarian-encouraged dependency relationships are ignored in the transition to clean energy, as state and federal policy drivers continue to curtail or undermine these communities’ economic activities in the name of collective progress.[182]

While the majority’s willingness to destroy coal communities’ dependency relationships is not a “takings,” it nonetheless raises the prospect of a discrete minority being sacrificed for “the greater good”—an approach to progress that legal ethicists have considered at best morally questionable.[183] Indeed, when federal legislators passed provisions of the Trade Act of 1974 to offset displacement caused by reduced restrictions on trade,[184] one decisionmaker reasoned, “much as the doctrine of eminent domain requires compensation when private property is taken for public use,” increased fair trade required compensation to displaced workers.[185] “Otherwise the costs of a federal policy [of free trade] that conferred benefits on the nation as a whole would be imposed on a minority of American workers.”[186]

It might be suggested that Appalachia and other carbon-dependent communities are not unique in their situation. Workers in the United States are often displaced and left vulnerable for a variety of reasons including changes in technology, new trade regimes, other policy developments, or the absence of legal protections.[187] This comparison is worthwhile. The story of Appalachia, while unique in some respects, shares many analogies, as with tenants and sharecroppers who were displaced by the mechanization of the cotton harvest, plant employees who lost manufacturing jobs when businesses moved overseas, and aerospace workers who were displaced during the 1990s with the end of the cold war, to name some examples.[188] The question becomes one of drawing lines. Where takings analyses stop, economic transitions begin. We ask people to bear the costs of the latter, not the former, and by not recognizing property interests in work,[189] we disfavor the property-less in decisions as to who receives compensation.[190]

This line-drawing may make sense. Otherwise, it could become cost-prohibitive to pass new laws. Yet certain factors weigh in favor of contemplating either more effective transitional policies or more robust baseline protections for workers and communities. First, as technology continues to evolve and render more work obsolete, the future will be replete with ongoing displacement.[191] As more and more people and professions are displaced, it seems unrealistic to assume that the supply of work will match the demand for it. Second, the egregious ramifications of the transition away from coal indicate that asking those workers and communities to bear the losses, adapt, and relocate has simply not worked for a substantial segment of those communities. While such a proposed allocation of losses may make sense in theory, in practice, the result has been poverty, deaths of despair, and regional stagnation.[192]

To be clear, none of this discussion is intended to suggest that deep decarbonization should not be pursued as swiftly and effectively as possible. The question of livelihoods should not hold the broader community hostage to the dire fate associated with a failure to reduce carbon emissions adequately.[193] This is also not a call for some form of reparations, especially considering other communities, such as indigenous populations and the descendants of slaves, whose under-acknowledged exploitation also fueled national wealth in even more dire ways. The argument is rather that fossil fuel communities have already borne loss after loss to the benefit of others. To ask them to bear yet another disproportionate loss in the clean-energy transition on behalf of the rest of society would be to effectuate yet another distributive injustice. In other words, these communities should not be forgotten in the decarbonization calculus. They deserve a just transition.

C.  A Political Economy Theory of Just Transitions

This Section explores a pragmatic and strategic argument in favor of embracing the just transition concept. In short, the United States is in urgent need of environmental and climate policy reform at the federal, state, and local levels.[194] Reform is often unachievable, however, because of entrenched political obstacles.[195] This Section argues that the pursuit of law and policy informed by just transitions principles may be more achievable than more traditional modes of seeking environmental reform.

Most scholars now agree that environmental reform had a zenith of sorts, and that the zenith has passed.[196] The late 1960s and early 1970s saw the passage of the Clean Air Act, the Clean Water Act, the Comprehensive Environmental Response, Compensation, and Liability Act, and the Resource Conservation and Recovery Act.[197] Still today, these major federal statutes make up the foundation of the environmental legal apparatus. The reforms largely came out of a national social movement.[198] Reacting to works such as Rachel Carson’s Silent Spring[199] and the incident of the Cuyahoga River catching fire,[200] the public realized that their welfare in part depended upon some measure of environmental protection.[201]

Sporadic successes have been achieved since the peak of environmental reform. As recently as 1993, Daniel Farber observed how environmentalism’s successes undermined the idea that interest groups could warp governmental policy through lobbying.[202] He explained:

[A]ir pollution legislation benefits millions of people by providing them with clean air; it also imposes heavy costs on concentrated groups of firms. The theory predicts that the firms will organize much more effectively than the individuals, and will thereby block the legislation. We would also expect to find little regulation of other forms of pollution. Similarly, we would also expect firms to block legislation limiting their access to public lands. Thus, the two basic predictions are that environmental groups will not organize effectively and that environmental statutes will not be passed.[203]

Yet Farber concluded that “the reality is quite different.”[204] “Environmental groups manage to organize quite effectively. . . . . Nor, obviously, is there any dearth of federal environmental legislation.”[205] He thus argued that “the political system manages to overcome the inherent advantages of special interests.”[206]

A more recent article by the same author recognizes a largely different status quo, however. In his 2017 article, The Conservative as Environmentalist, Farber recognizes that interest groups do indeed now stand in the way of environmental reform.[207] He suggests that conservatives’ shift away from moderate environmental sympathies over the past several decades can be explained by the “emergence of a coalition of disaffected westerners and business interests (particularly in the fossil-fuel industry) supported by an interlocking network of foundations, donors, and conservative-policy advocates.”[208]

A movement does exist today that is not all that different from the environmental movement of the 1960s and 70s.[209] Much of the American public is deeply concerned about climate change.[210] The movements for climate reform and related principles, such as climate justice and energy justice, use activism, litigation, and lobbying to pursue much-needed changes.[211] Many successes have been achieved.[212] Most commentators concede, however, that progress to date has simply been inadequate to ward off the disastrous effects of climate change.[213]

Anti-environmental forces today seem to have become more powerful than in prior eras.[214] The fossil fuel industry manages to undermine the environmental movement even at the grassroots level.[215] Pat McGinley describes, for example, the so-called “War on Coal” campaign, a massive, industry-financed public relations effort “buttressed by think-tank studies” that has successfully fueled public antipathy toward environmental regulations.[216] According to sociologists Bell and York, despite its waning contributions to the economy and employment, the fossil fuel industry manages to “gain[] compliance from substantial segments of the public” by “actively construct[ing] ideology that furthers its interests.”[217]

As the fossil fuel industry and conservative politicians have joined forces, labor and workers’ groups have often sided with them.[218] According to sociologist Brian Obach, “workers are not typically the lead opponents of environmental measures.”[219] Rather, industry executives recruit workers with the threat of layoffs or total shutdowns of operations. In addition, as “a threat to corporate profits” is not particularly concerning to the public, workers also become the more sympathetic faces of environmental opposition.[220]

Commentators have observed the largely untapped potential of collaboration between environmental and labor groups. The longstanding “work-environment” rift often puzzles scholars.[221] While jobs-versus-environment tensions serve to divide the two camps, other areas seem like they should be unifying—for instance, workplace safety, shared concerns about basic human needs, and as Doorey observes, the fact that both fields serve as checks on what would otherwise be “unbridled” corporate activity.[222]

One explanation for the rift is environmentalism’s association with the middle class and upper middle class. In its early days, the environmental movement was spurred in large part based on a philosophy embracing a veneration for nature.[223] As one activist articulates,

environmental heroes like John Muir, Teddy Roosevelt, and Aldo Leopold—and the romanticizing of wilderness through art, poetry, essays, and music—created a catalyst for men to see communing with nature as a way of defining their manhood. Exploration, solitude, and game hunting became the foundation for saving and preserving nature. But for whom was nature being saved?[224]

As the activist suggests, this philosophy arguably disregards the needs of society’s less privileged ranks, for instance, by failing to prioritize issues such as immediate access to clean drinking water, or being overly dismissive of livelihoods that depend on natural resources.[225] Pruitt and Sobczynski have argued, for example, that poor, white rural residents may be seen as “trash[ing] pristine nature by their very presence.”[226]

Yet, in the instances when labor and environmental groups have combined their efforts, these efforts have proven quite potent. Many attribute the passage of the Clean Air Act and the Clean Water Act to a coalition between workers and environmental organizations.[227] A prior article, Alienation and Reconciliation in Social-Ecological Systems, examined the fruitfulness of collaborative partnerships between ranchers and bird conservationists on public lands.[228]

Compared with the fossil fuel industry, then, the modern environmental movement has two problems: (1) a power problem and (2) a branding problem. Pursuing more aggressive, concerted appeals to labor interests could help address both of these problems.

The power problem is evidenced in the modern environmental movement’s inability to penetrate the thick web of interest groups that benefit from impeding climate reform and other environmental measures.[229] The political process is indeed “dominated by the rent-seeking activities of specialinterest groups.”[230] Naturally, coalitions and alliances stand to fare better than interest groups that work alone. While outreach to the fossil fuel industry may involve mere tilting at windmills given the industry’s track record,[231] labor and environments’ overlapping interests may have more potential to give climate advocates more allies and leverage.

But further, joining forces with workers’ advocates could also help the environmental movement win more hearts and minds. As an example of why the branding of environmental reform matters, many conservatives said in one public opinion poll that they opposed the Obama administration’s Clean Power Plan because they thought it would cost people jobs.[232] If the environmental movement addressed the jobs concern directly and in coordination with labor advocates—which they could do by lobbying for reform through the lens of the just transition—they could proactively address one of the arguments against environmental reform.

A potential concern in addressing work and labor more directly in environmental advocacy is that such efforts could result in sustaining livelihoods in hazardous industries and delaying much-needed environmental action. However, as discussed below, it is not necessarily contemplated that just transitions law and policy must entail actually sustaining hazardous industries; the more important principle is instead attempting to offset or mitigate some of the losses to livelihoods and communities as those industries’ activities are curtailed. Further, even if some compromises were to be made, it is worth considering whether the movement risks letting the perfect be the enemy of the good, and whether compromise outcomes may still be preferable to substantively preferable outcomes indefinitely delayed by political obstacles.[233]

III.  Just Transitions as Law: Filling in the Contours

This Part asks what are perhaps the most challenging questions surrounding the prospect of embracing just transitions in law and policy: What, exactly, does a just transition look like? Who deserves a just transition? What are the avenues for achieving it?

A helpful starting point is the fact that the pursuit of just transitions is not entirely alien to United States law and policy. This Part therefore starts in Section III.A with a brief summary and critique of four of the most prominent instances when federal institutions have authorized transitional policy to address worker and community displacement: (1) the Trade Act of 1974 providing assistance to manufacturing workers displaced by reduced restrictions on trade; (2) the President’s Northwest Forest Plan providing assistance to timber communities displaced by reductions in timbering on public lands; (3) the Tobacco Transition Payment Program assisting tobacco farmers displaced by public litigation against tobacco companies in the 1990s; and (4) the Obama administration’s Partnerships for Opportunity and Workforce and Economic Revitalization (POWER) Initiative assisting coalfield communities in the face of coal’s decline.

Interestingly, only two of the programs—the Forest Plan and POWER—have an explicit environmental component. This suggests that in practice, the understanding of just transitions has not been simply as a corollary to environmental progress. Rather, the consistent conditions among these scenarios are (1) a dependency relationship between a community and an industry that is (2) undermined by some public action, or perhaps in the case of coal, public inaction. Section III.B therefore also explores other, non-environmental scenarios where just transitions may be warranted, such as the example of New York City taxi drivers being displaced by ride-sharing services, or of longstanding community residents facing displacement by gentrification. Section III.B also revisits the argument that the line between economic and legal transitions is often blurrier than some might suggest, indicating that a scenario should not necessarily require a clear act of direct public complicity in order to trigger a just transition.

Section III.C discusses instances of locally-driven approaches to just transitions and posits that these examples offer important insights alongside the federal programs, particularly since the federal programs have, as a whole, not been considered particularly successful (while the effects of the POWER Initiative remain to be seen as of this writing). Local land use planning processes and similar mechanisms help account for the complex, interconnecting factors that shape mono-economies’ dependency relationships. They thus may have benefits to offer as an alternative or complement to the standard practice of using federal agencies to implement transitional policy.

Finally, Section III.D offers additional thoughts as to how and when just transitions should be pursued and who should pay for them. Yet this discussion again raises the question of whether transitional policy is the answer for worker and community vulnerability in the face of climate change or in other contexts, or whether more robust baseline protections may be the simpler, more efficient approach. This latter approach may also be the fairer, more inclusive one, in that transitional policy directs resources to workers who are losing “good jobs,” while other workers, particularly disproportionate numbers of women and people of color in the service industry, have benefited inequitably from such jobs in the first place.

A.  Federal Transitional Policies

1.  The Trade Act of 1974

The Trade Act of 1962 established the Trade Adjustment Assistance Program (TAA), while the Trade Act of 1974 gave birth to the modern program still operational today.[234] The program has become a quid pro quo component of modern trade policy. That is, in order to open more trade avenues, more trade assistance for injured domestic workers is often a necessary political compensatory measure.[235]

Crafted in the name of fairness, the program’s goal is to provide aid to workers who lose their jobs, hours of work, or wages because of increases in imports.[236] Congress was “of the view that fairness demanded some mechanism whereby the national public, which realizes an overall gain through trade readjustments, can compensate the particular . . . workers who suffer a loss . . . .[237] Returning to the idea that certain forms of displacement are ethically similar to takings, even if not cognizable as such in law, a federal court observed that TAA was pursued in as “much as the doctrine of eminent domain requires compensation when private property is taken for public use. Otherwise the costs of a federal policy [of free trade] that conferred benefits on the nation as a whole would be imposed on a minority of American workers . . . .[238]

Individuals eligible under the program may file a petition to the U.S. Department of Labor within one year of losing work.[239] Once certified, workers are then eligible to apply for TAA program benefits, which are administered through state agencies.[240] The benefits include “weekly cash benefits, job retraining, and allowances for job searches or relocation.”[241] “According to [2011] White House statistics, the average worker receiving benefits is a 46 year-old male with a high school education who is the primary breadwinner for his family and has worked for at least ten years at a factory that is closing.”[242]

Since the program’s inception, however, studies have shown that trade adjustment benefits have simply not gone far enough to compensate displaced workers for their losses. In one survey of displaced shoe workers in the 1970s, researchers concluded that

even if benefits were granted to a larger number of workers, each individual would be compensated for only a very small portion of his actual loss. The actual payments have been characterized by organized labor as band-aid treatment, because the subsequent wage loss as well as the many nonmonetary losses from displacement are not directly addressed.[243]

 More recently, economist Lori Kletzer found that almost forty percent of displaced workers did not find new jobs within one to two years after a job loss resulting from increased competition.[244] Another economist described trade assistance programs as “a collection of ad hoc, out-of-date, and inadequate programs that provide too little assistance too late to those in need.”[245] Legal scholars—who tend to treat TAA as a component of international trade law—have also critiqued trade adjustment assistance programs. Some deem TAA “a grave failure,” for reasons including “failures at the administrative and state levels, to Federal incompetence, to lack of resources and outreach for displaced workers,” as well as the inadequacy of judicial review available for workers unfairly denied assistance.[246] Its flaws notwithstanding, many agree that the program is preferable to not offering assistance at all and that reforms may stand to improve it.[247]

2.  The President’s Northwest Forest Plan

The President’s Northwest Forest Plan (NWFP) was formed in the aftermath of a 1992 decision in which the U.S. District Court for the Western District of Washington imposed an injunction prohibiting over 66,000 acres of timber from being harvested on Washington public lands because of dangers the harvesting posed to the northern spotted owl.[248] The Ninth Circuit Court of Appeals upheld this and a series of related decisions.[249] The Clinton administration then developed the NWFP, aimed toward enhancing conservation in the region. In 1994, the Forest Service and the Bureau of Land Management adopted the NWFP.[250]

The circumstances surrounding the NWFP’s enactment were famously contentious.[251] This scenario is at times considered a classic case study of “jobs versus environment.” Timber harvesters were outraged based on the perception that the habitat of a single species should wield such an impact on their livelihoods. Predictions of “economic devastation” followed the court decisions, with fears of “a new ‘Appalachia in the Northwest.’”[252] Environmentalists, meanwhile, saw the decisions as a necessary conservation win.

The economic concerns were not fictional. According to one commentator, “[n]o economic analysis [could] ignore the suffering of some rural communities, which [bore] the brunt of the economic pain associated with reduced federally subsidized timber supplies.”[253] When the injunction issued, it threw “between 60,000 and 100,000 people out of work.”[254] The NWFP sought to address some of this pain:

[It] extend[ed] assistance to workers and communities, payments to counties to compensate for reduced income, removal of tax incentives for the export of raw logs, and assistance to encourage growth and investment of small businesses and secondary manufacturing. Similarly, the Economic Adjustment Initiative . . . provided over $550 million to aid communities and individuals affected by reduced timber harvests.[255]

The NWFP also illustrates the causal complexity of factors that influence regional decline. Because of automation, “many jobs in the federally subsidized timber industry were on their way out long before the owl was listed as threatened under the Endangered Species Act.”[256] Generally, “rural areas dependent on the federal land-based timber industry” were not faring as well as other regions as of the 1990s.[257] Nonetheless, federal actors saw fit to intervene in this scenario involving mixed technological, economic, and legal factors contributing to the decline.[258]

The NWFP “never truly satisfied the warring factions, the timber industry and the environmentalists.”[259] However, it was considered an achievement for the Clinton administration.[260] Much analysis of the NWFP’s implementation has focused on its ecological successes. Yet, in all, “the NWFP has been more successful in stopping actions thought to be harmful to conservation . . . than it has been in promoting active restoration and adaptive management and in implementing economic and social policies set out under the plan.”[261]

The NWFP provided for “payments to timber-dependent counties suffering from cutbacks” due to the law’s implementation in 2000.[262] Since the NWFP’s implementation, counties formerly dependent on timber harvests for tax revenues have received millions of dollars.[263] Today, many of these counties are considered to be “in crisis” because of curtailments in direct federal subsidies.[264] The NWFP was criticized as failing to “provide long-term economic growth and security” for former timber counties.[265]

3.  The Tobacco Transition Payment Program

The tobacco industry has several unique quirks, but the parallels between the tobacco industry and the fossil fuel industry are notable. Both industries have invested aggressively in science-denial and public relations initiatives, both have rendered entire communities dependent upon them, and both have seen major shifts in public awareness contribute to their decline.[266] In addition to increased anti-tobacco sentiment and knowledge of health risks among the public, a mass tort action against tobacco companies in the 1990s brought them to the brink of extinction—which perhaps signifies a parallel to ongoing climate-related litigation against fossil fuel companies.[267]

Because of the economic hardships associated with decreased tobacco demand and government pushback against the tobacco industry, in the late 1990s, a settlement between states and large tobacco companies provided for billions of dollars of economic assistance to be paid to tobacco farmers.[268] The ten-year Tobacco Transition Payment Program (TTPP) was created to “ease tobacco farmers’ worries” and give them “time to diversify their crop to include other commodities separate from tobacco, or to allow [them] . . . to cease planting tobacco altogether.”[269] The TTPP also terminated a federal price-fixing program that had supported tobacco farmers since the 1930s.[270]

The TTPP is often referred to as a “buy-out” program.[271]  However, the term is somewhat misleading because farmers were not necessarily paid to stop growing tobacco.[272] Tobacco producers received government assistance by signing up for the TTPP through the U.S. Department of Agriculture Commodity Credit Corporation, which “provide[d] payments to tobacco quota holders who voluntarily enter[ed] into appropriate contracts with the government”[273]—including for the cessation of tobacco production.[274] The TTPP provided eligible producers with ten equal annual payments “designed to transition tobacco producers into a free market for their produce.”[275]

 The program’s effects were mixed and may be the subject of debate. The number of tobacco farmers was reduced dramatically just after deregulation was implemented.[276] Each participating farmer received on average a total of approximately $17,000 over the course of the program, while 75% of payments went to the top ten percent of farms.[277] Some have suggested that these payments offered important “injections of cash” for struggling rural communities.[278] On the other hand, the program may have had the effect of shackling some farmers to their crops involuntarily, as many were “unable to break free of the cycle of debt” associated with restructured relationships.[279] Some farmers, in response to the program, actually expanded their production of tobacco.[280]

 The TTPP model may have some lessons to offer just transitions law and policy. The fact that the TTPP helped transition workers and communities away from a production activity that had been publicly subsidized for decades, with minimal public attention or controversy, seems like a success. At the very least, the TTPP recognized that the political majority was complicit in fostering farmers’ dependency on the hazardous activity through national legislative intervention since the 1930s, and complicit in undermining that dependency relationship.

On the other hand, the TTPP model’s slow-sunsetting approach may stand in direct tension with the urgency associated with decarbonization. It also seemed to rely somewhat on tobacco farmers’ capacity for autonomous decisionmaking over their own production activities, which may not apply to many other scenarios or address regional economic dependencies with necessary robustness.

4.  The POWER Initiative

In 2016, the Obama administration announced a nearly forty million dollar program for twenty economic and workforce development projects to assist communities affected by changes in the coal and power industry.[281] The POWER Initiative was a joint effort involving ten federal agencies with the goal of either creating or retaining several thousand jobs, in addition to broader economic development, such as economic diversification, attracting new sources of investment, and providing workforce services and skills training. Through the POWER Initiative, the Appalachian Regional Commission (ARC) and other agencies have received over $100 million in appropriations to assist displaced coal workers.[282]

For instance, the ARC alone has received $50 million from Congress since 2016 in order to:

target federal resources to help communities and regions that have been affected by job losses in coal mining, coal power plant operations, and coal-related supply chain industries due to the changing economics of America’s energy production. To date, ARC has invested $94 million in projects serving 250 coal impacted counties. These projects are expected to create or retain 8,800 jobs, train 25,400 workers or students, and leverage an additional $210 million to the Region.[283]              

ARC receives applications for funding from local governments, states, other political subdivisions, non-profit organizations, and institutions of higher education.[284] As of this writing, little commentary has assessed the program’s outcomes. The proposed POWER Plus Plan, meanwhile, focused on more direct assistance to workers; yet it and similar proposals have failed to make their way through Congress.[285]

B.  Synthesizing Federal Transitional Policies

Several themes emerge from the programs above. These themes illuminate the conditions that have been considered appropriate for triggering intervention in pursuit of a just transition. These programs’ strengths and weaknesses in design and implementation can also inform future efforts.

The first theme is that policymakers have implemented transitional policy when there is foreseeable, widespread displacement to workers as the result of some form of public action. Embedded in the foreseeable displacement is the existence of some kind of dependency relationship or longstanding regional mono-economy. This theme may explain why transitional support beyond unemployment benefits is not specifically provided when a sector like Blockbuster goes out of business: unlike with each of the sectors above, there are no company towns or regions where substantial portions of the population have been employed at Blockbuster for decades.

Critically, though, the programs do not require some sort of showing that a loss is the proximate result of an intentional public act. In fact, the Trade Act of 1974 specifically undid such a requirement imposed by the 1962 Act. The 1962 Act required that increased imports were the “major cause” of beneficiaries’ unemployment.[286] Yet it became clear shortly thereafter that most workers simply would not be able to meet such a burden.[287] One reason for the absence of a causality requirement is that economic and legal transitions in the United States are fundamentally entangled. Further, the absence of regulations may affect transitions in similar ways as the creation of regulations. As discussed above, commentators often point to the cheapness of natural gas as the “real” reason for the coal industry’s decline; yet Congress could easily have chosen to regulate natural gas more stringently or otherwise intervene into energy markets.

One weakness, at least with the NWFP and TAA, is that neither is considered to have achieved successful economic mitigation in the face of the loss being addressed. One reason for this may be that directing large aid packages to benefits such as relocation assistance will inevitably be a “band-aid” approach if those packages do not address the root cause of workers’ and communities’ vulnerability. The root cause is the development of the dependency relationship or mono-economy in the first place. In this sense, it is possible that federal actors—unless they create a New Deal-style form of transitional employment themselves—may be too detached from regional realities to meaningfully reshape a region. Similarly, the very nature of these programs may reflect a “too little, too late” approach to addressing longstanding histories of regional under-investment. The TTPP may have been more successful in part because many tobacco farmers were near retirement anyway, few depended solely on tobacco-farming income, and tobacco farmers may have been better able to exercise control over their own economic activities as compared to laid-off manufacturing or timber workers.[288]

The second problem with these programs is that as jobs like timbering and mining decline, no comparably lucrative, low-skill jobs are, in fact, available as alternatives for displaced workers. The three main traditional rural livelihoods—natural resource extraction, manufacturing, and farming—have declined dramatically.[289] The sectors that have taken their place are lower-paying positions in the service industry.[290] These positions lack the security, culture, and regional influence of the traditional livelihoods. Transitional policy geared toward moving a worker from a traditional livelihood to a modern one will almost inevitably be moving that worker a step down in the world of work. In turn, the region may be fated to suffer, as each individual experiences a loss in wages and security, effectuating ripple effects on local tax coffers.

The POWER Initiative does align with this Article’s theoretical discussion of how a just transition should be defined. The program’s focus on diverse forms of regional stakeholders and initiatives may make it better poised to succeed than programs focused more heavily on one approach, such as worker retraining or providing direct subsidies to local governments. Yet it is not clear that POWER is adequate to address the likely-intensified losses anticipated to be associated with deep decarbonization.

In any case, these programs indicate that circumstances triggering just transitions are not limited to what is arguably the perfect case study of the coalfield community. The case of the New York City taxi drivers illustrates yet another scenario where workers formed a longstanding dependency relationship with one industry; their industry performed a quasi-public function; and the public’s failure to act left the workers vulnerable to an abrupt collapse of their industry, leaving them without meaningful alternatives. As with manufacturing or mining jobs, taxi drivers, once part of a lucrative, regulated community, were suddenly in competition with options that were cheaper, faster, and less secure in the form of app-directed ride-sharing services.[291] Many drivers had invested their life savings in coveted taxi medallions, the value of which dropped dramatically due to the rise of Uber and Lyft. Six driver suicides over the course of six months in 2018 brought the City’s attention to this community’s struggle.[292] As of this writing, “New York’s city council is poised to approve a one-year cap on new licenses for Uber . . . and other ride-sharing vehicles as part of a sweeping package of regulations intended to reduce traffic and halt the downward slide in drivers’ pay.”[293]

Just transitions considerations also seem relevant to communities displaced by gentrification. In those instances, the community has developed a dependency relationship on an existing way of life. This way of life could have relied, in fact, on a history of under-investment, the absence of industry, or a mix of industries that are not necessarily lucrative. When more lucrative industries arrive to take advantage of that history of under-investment—bringing with them wealthier residents and higher home and goods prices—political inaction in the face of the communities’ vulnerability to displacement may be an analogous version of an unjust transition.[294]

The next Section looks at alternatives, or potential complements, to federal aid packages in transitional programs. It posits that locally-driven transitions may stand to more meaningfully untangle the diverse issues at play in a mono-economy or dependency relationship. This more intimate process could in turn wield more benefits in shaping regional economic fates.

C.  Locally-Driven Transitions

Alan Ramo and Deborah Behles examined the experience of Navajo and Hopi communities with the Mohave Generating Station along the Nevada-Arizona border in the late 1990s and early 2000s.[295] Their case study provides an illustration of a scenario in which local actors addressed the impending cessation of hazardous industrial activity that a community also depended upon economically.

The U.S. Department of the Interior decided in the early nineteenth century that the Mohave Station would receive its coal and water from nearby Hopi and Navajo reservations.[296] This decision commenced a longstanding exploitative relationship that gave Native groups little control over their coal and water resources.[297] For years, both Hopi and Navajo tribes advocated to set aside the original decree, protesting highly undervalued royalties they received for use of their coal and water.[298] Yet the communities also depended on the royalties, as well as the fact that about 250 Navajo were employed at Mohave’s mine.[299]

In 1998, two environmental groups sued Mohave’s owners, alleging violations of Clean Air Act emissions limits, compliance orders, and reporting requirements; simultaneously, the U.S. Environmental Protection Agency concluded that the plant posed a risk to visibility in the Grand Canyon.[300] Thus began the transition toward the closure of the Mohave Plant, which risked leaving the native communities in even worse circumstances than before, despite the closure’s likely environmental benefits.

The Mohave plant was closed in 2006.[301] It was not closed because of environmental hazards, but because it was no longer cost-effective—which again raises the question of untangling the causal factors that trigger the need for a just transition. The communities were “devastated by Mohave’s operation,” but also devastated by its closure.[302]

Issues concerning the plant arose in another proceeding around the same time, however, where Mohave’s former owner, Southern California Edison, was involved in a rate case with the California Public Utilities Commission (CPUC).[303] Local groups formed an organization called the “Just Transition Coalition” in order to intervene in the proceeding. The coalition was an alliance of environmental and grassroots Native American interests including the Indigenous Environmental Network, Black Mesa Trust, Black Mesa Water coalition, To’ Nizhoni Ani, Grand Canyon Trust, and the Sierra Club.”[304] The coalition intervened “to demand that the CPUC allocate funds from the sale of Acid Rain SO2 allowances, which were an unneeded windfall if Mohave remained closed, to help transition the Hopi and Navajo communities to cleaner energy alternatives.”[305] The group emphasized that a transition that invested in the communities “was equitable due to Mohave’s operation and closure’s devastating economic and social impacts and decades of . . . subsidized cheap coal power.”[306] The CPUC then ordered Mohave’s former owner to set aside acid rain allowances to be disbursed in the future.[307]

The process of transitioning the communities away from their dependency relationship with the plant involved “years of mediation, workshops, and litigation,” which resulted in the Hopi and Navajo agreeing with the Just Transition Coalition that revenues should be used to incentivize renewable energy generation.[308] The CPUC, relying on its authority to “exercise equitable jurisdiction as an incident to its express duties” to regulate utilities in its jurisdiction, as well as California’s Renewable Portfolio Standard, decided “to disburse the allowance revenues to incentivize renewable generation that benefited Hopi and Navajo communities.”[309]

While the procedural evolution of this case study may appear to be a unique or idiosyncratic approach to a just transition, it offers lessons for pursuing just transitions elsewhere. Ramo and Behles argued that this scenario “presents a roadmap for other states to consider creative solutions to help communities transition away from fossil-fuel generation.”[310] As of this writing, many commentators seem to view the Mohave transition as a success story.[311]

The Mohave process in fact mirrors several procedural models that can be embodied in law and policy in different ways. First, it resembles new governance. According to new governance theory, diverse stakeholders must be involved in decisionmaking, where traditional networks and hierarchies are emphasized less, and the exchange of information and pursuit of win-win solutions are emphasized more.[312] More traditionally, though, this process resembles land use planning processes, which also involve bringing stakeholders together to pursue collaborative decisionmaking.[313] Administrative law and policy can provide for mechanisms that facilitate communities’ ability to pursue these processes.

Diverse local and state jurisdictions in the United States and internationally are in the process of approaching transitions in different ways. In 2008, the State of Kentucky passed a tax incentive to attract new employers to the region.[314] The struggling coal town of Hazard, Kentucky, has developed a former surface mine site into a research and testing facility for drone companies, while also offering new skills courses through the local community college.[315] The Canadian province of Alberta has earmarked $40 million to help approximately 2,000 workers, who are “losing their jobs as the province transitions away from thermal coal mines and coal-fired power plants over the next decade,” by providing “tuition vouchers, retraining programs, and on-site transitioning advice.”[316] These varying approaches indicate that the ideal model for pursuing a just transition may be context-specific. At least, as much of the global community seeks to transition to low-carbon energy emissions in the coming years, more success stories and replicable models should emerge.

The Mohave study suggests that certain conditions may be conducive to a more transformative transition than an approach focused more narrowly on a measure such as worker retraining. These conditions include equal bargaining power among stakeholders, stakeholders with adequate resources, and a procedural mechanism to pursue a long-term decisionmaking or dispute resolution process. An effort toward transition that is more transformative also must involve some iterative decisionmaking—the “messiness” often associated with successful stakeholder collaboration—rather than single instances of legislative reform. Appropriate venues could be state, local, or federal administrative agencies, local governments, and courts.

The Mohave study also shows how a just transitions policy can, and often should, be pursued in tandem with remedies for a history of environmental injustice. Many communities that depend upon high-carbon industries have also been harmed by them; many communities harmed by high-carbon industries have not benefited economically at all. Yet the choice of remedy does not pose an “either/or” choice between remedying environmental injustice or remedying just transitions. A holistic, democratic process can account for both past harms and future risks.

D.  Additional Considerations for Pursuing Just Transitions

A pressing question in the pursuit of just transitions policy is, who pays for just transitions? More specifically, why should the public pay and not the employers who have left these regions and workers vulnerable?

The discussion in this Article is primarily concerned with public options for facilitating collective transitions. It is presumed that employers will often not be in a position to facilitate just transitions themselves. First—consistent with the above-mentioned concerns about interest groups—accountability for fossil fuel companies has been elusive.[317] Congress has virtually declined to regulate the natural gas industry, for example.[318] Second, many employers have become insolvent, as evidenced by the spate of coal companies that have filed for bankruptcy in recent years.[319]

Nonetheless, future research should address the prospect of employer involvement in just transitions law and policy, especially where employers have knowingly pursued hazardous industrial activity to society’s detriment. In addition to tobacco companies’ involvement in funding the TTPP program described in Section III.A.3, a starting point for this consideration would be the federal Worker Adjustment and Retraining Notification Act of 1988 (the WARN Act).

The WARN Act “was enacted in 1988 in response to the rash of plant closings and layoffs that had occurred in the immediately preceding years.”[320] It sought “to enable workers, their families, and local community leaders sufficient time to prepare for mass layoffs or plant closures.”[321] It “obligates employers to provide at least 60-days notice to employees and local government officials of a covered plant closure or mass layoff.”[322] The Act covers employers who plan to lay off fifty or more employees during any thirty-day period, excluding part-time employees.

The WARN Act has been heavily criticized. Not only does it do little for workers and communities beyond providing a strikingly brief notice period before entire communities may be upended, but it also was deemed “imprecise, vague, difficult to interpret, and . . . may be very difficult to apply sensibly to particular fact situations.”[323] But the idea could be helpful. Perhaps a modernized WARN Act of just transitions law and policy would require six to twelve months’ notice and options for assisting workers to retrain and relocate, for example.

Finally, perhaps the real concern underlying the justice or injustice of transitions is not about transitions at all. Measures such as guaranteed employment or universal basic income, for example, would preclude the need to manufacture new regional or sectoral economies in anticipation of the ebb and flow of industries. A more robust baseline of worker and community support would make the vulnerability associated with transitions less dire and help preclude difficult decisions as to who should win and lose in the distribution of benefits and burdens.

Conclusion

In the context of climate change, legal scholars should embrace the just transition as an equitable principle of easing the burden decarbonization poses to workers and communities who depend on carbon-heavy industries. Embracing this definition will be clarifying, will allow legal scholarship to engage with other fields and institutions that already recognize this definition, and will give the labor movement its due for originating the term. In turn, the concept finds support in important principles relevant to the environmental condition today, such as the need to account for complex social-ecological systems, to address jobs-versus-environment tensions, and to better consider economic equity. In short, if scholars and policymakers embrace the just transition concept, it stands to serve principles of economic equity, it might help make climate reform more achievable through coalition-building, and it is poised to bring environmental law more in line with the needs of the climate era.

Yet the just transition concept bears relevance to diverse scenarios where workers and communities face large-scale displacement from the longstanding industries on which they have relied. The moral impetus to help in the face of displacement may be the strongest where a public initiative is the clear cause of the displacement. This scenario is the most analogous to the state’s use of eminent domain, where the “taking” of something is compensated because a discrete group is not asked to bear the costs of an initiative pursued for the greater good. While one might suggest that workers and communities should bear the costs of such displacement as the natural price of regulation, U.S. transitional policy illustrates prominent instances where Congress was compelled to intervene.

The cause of displacement is often unclear, however. Our economic and legal evolutions tend to be intertwined. Thus, transitional policy may still be warranted where the cause of the displacement is less clear than the obvious, and relatively rare, “job-killing” law. Further, even if purely private forces caused large-scale displacement, considerations of fairness, compassion, and equity suggest it is the wrong choice to simply leave workers in the lurch where they lack other alternatives, or where their work contributed a public or quasi-public function—especially if, as Mazzocchi articulated and as is the case with fossil fuel workers, that work was particularly hazardous. This calculus does yield inherent problems with line-drawing. As an alternative, measures such as universal basic income or other provisions of a more robust social safety net could preclude the need to pick winners and losers in these scenarios.

Given federal agencies’ track record of failing to sustainably untangle regional dependency relationships, to adequately offset workers’ and communities’ losses, or to nurture forward-looking economic diversification for regions and sectors in decline, it may be time to question whether federal agencies are indeed the most appropriate forum for large-scale transitional policy. It is possible that the largely-untested POWER Initiative uses novel substantive approaches that may not repeat the mistakes of past policies. Processes driven by state and local institutions and stakeholders may allow for a more involved, context-specific approach that can help better address the challenges associated with historical mono-economies. Additional research can help illuminate the best mechanisms for achieving just transitions in practice, especially as the clean-energy transition gains momentum. Perhaps most importantly, when environmental decisions are made, just transitions can and should be among values decisionmakers seek to harmonize.

 


[*] *.. Assistant Professor of Law, University of South Carolina School of Law. I thank Lauren Aronson, Derek Black, Josh Eagle, Katherine Garvey, Joy Radice, Ed Richards, Kathryn Sabbeth, Emily Suski, Gavin Wright, and participants at the 2018 Texas A&M University School of Law’s Property Roundtable and the 2018 Just Transitions Workshop at the University of South Carolina School of Law for their thoughtful feedback on this project.

 [1]. Cf. Ann Eisenberg, Civil Society Versus Transnational Corporations in International Energy Development: Is International Law Keeping Up?, in China and Good Governance of Markets in Light of Economic Development 27 (Paolo Davide Farah ed., Routledge Pub., forthcoming 2019) (on file with author) (arguing that civil liberties may be sacrificed in the name of clean-energy development projects).

 [2]. While this Article refers to “low-carbon” policy goals, these goals are assumed to also contemplate other greenhouse gas emissions with similar effects relating to climate change. The discussion focuses on carbon both for the sake of succinctness and because of carbon’s prominence among the greenhouse gases as a driver of climate change.

 [3]. See Ngram Viewer: Just Transition, Google Books, https://books.google.com/ngrams
/graph?content=just+transition&year_start=1800&year_end=2017&corpus=15&smoothing=3&share=&direct_url=t1%3B%2Cjust%20transition%3B%2Cc0 (last visited Jan. 25, 2019) (searching for the frequency of the use of the term “just transition”).

 [4]. Cf. Dimitris Stevis & Romain Felli, Green Transitions, Just Transitions? Broadening and Deepening Justice, 3 Kurswechsel 35, 35 (2016) (Ger.) (“In short, there are varieties of Just Transition, reflecting the politics of its various advocates.”).

 [5]. See infra Section I.A.

 [6]. See Peter Newell & Dustin Mulvaney, The Political Economy of the ‘Just Transition’, 179 Geographical J. 132, 132–33 (2013) (discussing inequality and fossil fuel usage).

 [7]. See Mark Swilling & Eve Annecke, Just Transitions: Explorations of Sustainability in an Unfair World, 50–52 (2012); Victor B. Flatt & Heather Payne, Not One Without the Other: The Challenge of Integrating U.S. Environment, Energy, Climate, and Economic Policy, 44 Envtl. L. 1079, 1085 (2014) (discussing financial harms climate change has already posed to world economies and vulnerable populations). As an example, some scholarship has raised concerns about increased reliance on biofuels as a renewable energy source because of their potential to harm vulnerable populations—which would illustrate an unjust transition to renewables according to this definition. See, e.g., Nadia B. Ahmad, Blood Biofuels, 27 Duke Envtl. L. & Pol’y Forum 265, 282–94 (2017) (discussing impacts on small farmers and poor consumers in developing countries); Carmen G. Gonzalez, The Environmental Justice Implications of Biofuels, 20 UCLA J. Int’l L. & Foreign Aff. 229, 251–60 (2016) (discussing impacts on taxpayers, small farmers, and poor consumers in developing countries); Uma Outka, Environmental Justice Issues in Sustainable Development: Environmental Justice in the Renewable Energy Transition, 19 J. Envtl. & Sustainability L. 60, 77–85 (2012) (discussing impacts on Native American tribes and African American communities).

 [8]. See infra Section I.A.

 [9]. See David Doorey, Just Transitions Law: Putting Labour Law to Work on Climate Change, 30 J. Envtl. L. & Prac. 201, 206–07 (2017). In light of climate change,

energy and resource-intensive sectors are likely to stagnate or contract . . . new pressures will be brought to bear on unemployment, adjustment, and training strategies . . . . There will be winners and losers in domestic and international labour markets . . . . The idea of “just transition” to a greener, lower carbon economy has its roots in the global labour movement . . . . Just transition refers to a policy platform that advocates legal and policy responses and planning that recognizes the needs for economies to transition to lower carbon economic activity, while at the same time respects the need to promote decent work and a fair distribution of the risks and rewards associated with this transition.

Id.; Newell & Mulvaney, supra note 6, at 133–34.

 [10]. Josua Mata, What is ‘Just Transition’?, New Internationalist, Sept. 2016, at 21.

 [11]. See Shalanda Baker et al., Beyond Zero-Sum Environmentalism, 47 Envtl. L. Rep. 10328, 10330–32, 10340–43 (2017).

 [12]. Todd S. Aagaard, Environmental Law’s Heartland and Frontiers, 32 Pace Envtl. L. Rev. 511, 511–12 (2015) (“Environmental law is currently—and has been for some time—in a phase that is simultaneously reassuring and worrisome. As a society, we have been generally well served by the forty-five years of modern federal environmental law since 1970. . . . The unfortunate flip side of stability, at least in this case, has been a marked degree of ossification.”); David W. Case, The Lost Generation: Environmental Regulatory Reform in the Era of Congressional Abdication, 25 Duke Envtl. L. & Pol’y Forum 49, 89 (2014) (“[T]he prospects that Congress will enact any such positive reform-minded environmental legislation in the foreseeable future appear nonexistent.”); J.B. Ruhl, Climate Change Adaptation and the Structural Transformation of Environmental Law, 40 Envtl. L. 363, 407 (2010). But see Dave Owen, Little Streams and Legal Transformations, 2017 Utah L. Rev. 1, 5–6 (2017) (arguing that environmental protections have expanded and become more sophisticated and that overly pessimistic narratives discount environmental law’s accomplishments).

 [13]. See Todd S. Aagaard, Environmental Law Outside the Canon, 89 Ind. L.J. 1239, 1281–91 (2014) (calling for rethinking of environmental law as dominated and characterized by canon of major federal statutes enacted in 1970s, and proposing approaches that could work in antagonistic political climate, integrate with non-environmental laws, and better approach climate change); Todd S. Aagaard, Using Non-Environmental Law to Accomplish Environmental Objectives, 30 J. Land Use & Envtl. L. 35, 35 (2014); Daniel C. Esty, Red Lights to Green Lights: From 20th Century Environmental Regulation to 21st Century Sustainability, 47 Envtl. L. 1, 5 (2017).

 [14]. See Aagaard, Environmental Law’s Heartland and Frontiers, supra note 12, at 512–13.

 [15]. See Blake Hudson, Relative Administrability, Conservatives, and Environmental Regulatory Reform, 68 Fla. L. Rev. 1661, 1661 (2016) (arguing that geographic-delineation policies at state and local level offers environmental reform plan that would be palatable to conservatives); Dave Owen, Mapping, Modeling, and the Fragmentation of Environmental Law, 2013 Utah L. Rev. 219, 224–25 (2013) (arguing for applying quantitative spatial analysis to environmental law); Jedediah Purdy, American Natures: The Shape of Conflict in Environmental Law, 36 Harv. Envtl. L. Rev. 169, 169 (2012) (“Legal scholarship is in a bad position to make sense of [climate change] because the field has concentrated on making sound policy recommendations to an idealized lawmaker, neglecting the deeply held and sharply clashing values that drive, or block, environmental lawmaking.”); Rachael E. Salcido, Rationing Environmental Law in a Time of Climate Change, 46 Loy. U. Chi. L.J. 617, 621 (2015) (arguing that “rationing” environmental law, in other words, selectively applying environmental law to renewable energy because of climate change, is not ideal, but is nonetheless worthwhile “based on the reality of political failures, market forces, and horrifying consequences of unchecked fossil fuel dependence”); Michael P. Vandenbergh, Reconceptualizing the Future of Environmental Law: The Role of Private Climate Governance, 32 Pace Envtl. L. Rev. 382, 383 (2015) (arguing for “opportunity to buy time with private governance”).

 [16]. Cf. Doorey, supra note 9, at 206–07.

 [17]. Cf. Ruhl, supra note 12, at 407.

 [18]. Cf. Mark Sagoff, The Principles of Federal Pollution Control Law, 71 Minn. L. Rev. 19, 82–83 (1986) (criticizing environmentalism as separating ends of environmental policy from means necessary to attain the ends). So-called “blue-green alliances”—instances of environmental groups and labor groups joining forces to advocate for joint environmental and work-related platforms—demonstrate the potency of measures that bridge the historical rift between labor and environmental concerns. Ann M. Eisenberg, Alienation and Reconciliation in Social-Ecological Systems, 47 Envtl. L. 127, 145 (2017). Notable examples exist of environmentalists acknowledging labor issues, and vice versa. In 1973, Sierra Club President Mike McCloskey called for “the government ‘to indemnify workers who are displaced in true cases of plant closures for environmental reasons.’” He argued, “[w]orkers should not be made to bear the brunt of any nation’s commitment to a decent environment for all. Society should assume this burden and aid them in every way possible.” Les Leopold, The Man who Hated Work and Loved Labor 309 (2007). Today, the Sierra Club and other environmental organizations have partnered with large labor unions in a “blue-green alliance” to advocate for environmental reform alongside policies that “create and maintain quality jobs.” Members, Blue Green Alliance, https://www.bluegreenalliance.org/about/members (last visited Jan. 25, 2019).

 [19]. Cf. Scott D. Campbell, Sustainable Development and Social Justice: Conflicting Urgencies and the Search for Common Ground in Urban and Regional Planning, 1 Mich. J. of Sustainability 75, 75 (2013) (noting that “middle-class environmental interests typically trump the interests of the poor and marginalized, too often leading to an exclusionary sustainability of privilege rather than a sustainability of inclusion”); Eisenberg, supra note 18, at 127.

 [20]. Leopold, supra note 18, at 417.

 [21]. See discussion infra Section I.A.

 [22]. See Randall S. Abate, Public Nuisance Suits for the Climate Justice Movement: The Right Thing and the Right Time, 85 Wash. L. Rev. 197, 199 (2010) (“Climate justice embraces a human rights approach to advocating for rights and remedies for climate change . . . climate justice focuses on the rights of those disproportionately affected by the impacts of climate change.”); Shalanda H. Baker, Mexican Energy Reform, Climate Change, and Energy Justice in Indigenous Communities, 56 Nat. Resources J. 369, 379 (2016) (though not yet a cohesive field of study, energy justice provides overall framework to view related areas of climate justice, environmental justice, and energy democracy); see also Flatt & Payne, supra note 7, at 1081 (noting that “[e]nergy poverty” recognizes inextricable linkage between energy and “economics of the human condition.”).

 [23]. Cf. Geoff Evans & Liam Phelan, Transition to a Post-Carbon Society: Linking Environmental Justice and Just Transition Discourses, 99 Energy Pol’y 329, 333 (2016).

 [24]. Both unclean hands and estoppel are longstanding doctrines of equity that attempt to inject principles of fair play into parties’ dealings with one another. The unclean hands doctrine prevents parties from profiting from their own wrongdoing, while the estoppel doctrine prevents parties from taking inconsistent positions. See T. Leigh Anenson & Gideon Mark, Inequitable Conduct in Retrospective: Understanding Unclean Hands in Patent Remedies, 62 Am. U. L. Rev. 1441, 1450 (2013). Of course, it is not contemplated that fossil fuel workers could raise such claims in court successfully. Rather, the ideas underlying calls for just transitions seem to invoke similar principles: society should not profit substantially from its hazardous industries only to abandon the workers in those industries, and nor should it encourage fossil fuel development only to abruptly take the opposite stance. For a discussion of a takings analogy, see infra Section II.B.

 [25]. See discussion infra Section III.B for brief treatments of displacement resulting from taxi drivers competing with ride-sharing services and displacement resulting from gentrification. A forthcoming article, Distributive Justice and Rural America, further explores the just transitions concept as a principle of distributive economic justice. See generally Ann M. Eisenberg, Distributive Justice and Rural America (unpublished manuscript) (on file with author).

 [26]. See generally Doorey, supra note 9.

 [27]. See Richard J. Lazarus, Pursuing “Environmental Justice”: The Distributional Effects of Environmental Protection, 87 Nw. U. L. Rev. 787, 829 (1993).

 [28]. See Outka, supra note 7, at 62–63 (“[S]ustainable development . . . means more than ‘greener’ economic development. Instead, it captures the interrelationship between the environment, the economy, and human well-being in the effort to meet ‘the needs of the present without compromising the ability of future generations to meet their own needs.’”).

 [29]. Dylan Brown, Mining Union Faces ‘Life-and-Death’ Test, E&E News (Apr. 11, 2017), https://www.eenews.net/stories/1060052929.

 [30]. See infra Section II.B; see also Naomi Seiler et al., Legal and Ethical Considerations in Government Compensation Plans: A Case Study of Smallpox Immunization, 1 Ind. Health L. Rev. 3, 14 (2004) (noting that the question of whether government should compensate someone raises the question of whether government actor caused harm in question; noting, too, that government can act either way out of compassion rather than obligation, and that causation by a non-government actor also raises question of whether government failed to protect from harm).

 [31]. Cf. Holly Doremus, Takings and Transitions, 19 J. Land Use & Envtl. L. 1, 4–5 (2003) (“Focusing more directly on law as a dynamic phenomenon, on the benefits and costs of transitions, and on other factors that may encourage or impede transitions might bring some coherence to [the] famously incoherent area of [takings] law.”); Louis Kaplow, An Economic Analysis of Legal Transitions, 99 Harv. L. Rev. 509, 534 (1986) (“[N]one of the distinctions they offer for treating government and market risks differently withstands scrutiny.”).

 [32]. See, e.g., Mark Joseph Stern, A New Lochner Era, Slate (June 29, 2018), https://slate.com
/news-and-politics/2018/06/the-lochner-era-is-set-for-a-comeback-at-the-supreme-court.html.

 [33]. Swilling & Annecke, supra note 7; Caroline Farrell, A Just Transition: Lessons Learned from the Environmental Justice Movement, 45 Duke F.L. & Soc. Change 45, 45 (2012) (“As we transition away from a fossil fuel economy, we should . . . plan the transition not only to change the way we use fuel, but to create a truly just economy.”).

 [34]. Doorey, supra note 9, at 7.

 [35]. See, e.g., Outka, supra note 7, at 68 (listing harmful health and environmental effects of fossil fuel production and consumption).

 [36]. Cf. Evans & Phelan, supra note 23.

 [37]. See Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000), cert. denied, 532 U.S. 941 (2001); see also Uma Outka, Fairness in the Low-Carbon Shift: Learning from Environmental Justice, 82 Brook. L. Rev. 789, 792 (2017) (explaining that the U.S. petroleum industry has caused devastating human rights abuses in Africa and South America).

 [38]. Debbie Elliot, 5 Years After BP Oil Spill, Effects Linger and Recovery Is Slow, Nat’l Pub. Radio (Apr. 20, 2015), http://www.npr.org/2015/04/20/400374744/5-years-after-bp-oil-spill-effects-linger-and-recovery-is-slow.

 [39]. E.g., Luis E. Cuervo, OPEC from Myth to Reality, 30 Hous. J. Int’l L. 433, 494 (2008).

 [40]. Shannon Elizabeth Bell & Richard York, Community Economic Identity: The Coal Industry and Ideology Construction in West Virginia, 75 Rural Soc. 111, 139 (2010); Jeanne Marie Zokovitch Paben, Green Power & Environmental Justice—Does Green Discriminate?, 46 Tex. Tech L. Rev. 1067, 1108 (2014).

 [41]. See Outka, supra note 7, at 790 (explaining that the energy sector’s reliance on fossil fuels, primarily coal, makes it the primary source of greenhouse gas emissions in the United States, a country which has contributed more to climate change than any other country); Salcido, supra note 15, at 618–19 (listing effects of climate change already occurring, such as more severe, frequent storms).

 [42]. Evans & Phelan, supra note 23, at 330 (describing social movement for “post-carbon society,” which ranges from grassroots, “bottom-up surveillance” and demands for more democratic and decentralized energy sources, to major U.S. banks that have moved away from ever-riskier coal investments).

 [43]. See, e.g., Tom Murray, China Is Going All in on Clean Energy as the U.S. Waffles. How Is that Making America Great Again?, Forbes (Jan. 6, 2017), https://www.forbes.com/sites
/edfenergyexchange/2017/01/06/china-is-going-all-in-on-clean-energy-as-the-u-s-waffles-how-is-that-making-america-great-again/2/#769f3bac340f.

 [44]. Michael Greshko et al., A Running List of How President Trump Is Changing the Environmental Policy, Nat’l Geographic (Oct. 19, 2018), http://news.nationalgeographic.com/2017
/03/how-trump-is-changing-science-environment.

 [45]. Devashree Saha & Mark Muro, Growth, Carbon, and Trump: State Progress and Drift on Economic Growth and Emissions ‘Decoupling’, Brookings (Dec. 8, 2016), https://www.brookings.edu
/research/growth-carbon-and-trump-state-progress-and-drift-on-economic-growth-and-emissions-decoupling.

 [46]. Camila Domonoske, Mayors, Companies Vow to Act on Climate, Even as U.S. Leaves Paris Accord, Nat’l Pub. Radio (June 5, 2017), http://www.npr.org/sections/thetwo-way/2017/06/05
/531603731/mayors-companies-vow-to-act-on-climate-even-as-u-s-leaves-paris-accord.

 [47]. Outka, supra note 7, at 793; Murray, supra note 43.

 [48]. Nigel Topping, The Irreversible Rise of the Clean Economy in 2017, GreenBiz (Feb. 7, 2017), https://www.greenbiz.com/article/irreversible-rise-clean-economy-2017.

 [49]. Id.

 [50]. Outka, supra note 7, at 77–85; Stevis & Felli, supra note 4, at 43 (“Like the grey economy before it, this Green Transition can be as exploitative of people and nature as the grey economy was, if there is no countervailing power and vision.”).

 [51]. Lakshman Guruswamy, Energy Justice and Sustainable Development, 21 Colo. J. Int’l Envtl. L. & Pol’y 231, 271 (2010).

 [52]. Alex Geisinger, Uncovering the Myth of a Jobs/Nature Trade-Off, 51 Syracuse L. Rev. 115 passim (2001); Carey Catherine Whitehead, Wielding a Finely Crafted Legal Scalpel: Why Courts Did Not Cause the Decline of the Pacific Northwest Timber Industry, 38 Envtl. L. 979, 981 (2008) (describing the “classic” jobs-versus-environment “story”).

 [53]. See, e.g., Garrett Ballengee & Michael Reed, Clean Power Plan: All Pain, No Gain for West Virginia, The Hill (Aug. 3, 2016), http://thehill.com/blogs/pundits-blog/energy-environment/289694-clean-power-plan-all-pain-no-gain-for-west-virginia.

 [54]. See, e.g., Geisinger, supra note 52.

 [55]. E.g., id. See generally Lois J. Schiffer & Jeremy D. Heep, Forests, Wetlands and the Superfund: Three Examples of Environmental Protection Promoting Jobs, 22 J. Corp. L. 571 (1997) (describing as a “myth” that conflict exists between protection of environment and protection of jobs).

 [56]. See, e.g., Isaac Shapiro & John Irons, Econ. Policy Inst., Briefing Paper #305  Regulation, Employment, and the Economy: Fears of Job Loss Are Overblown 12 (2011) (“Regulations can have broad economic benefits that may not be apparent at first blush. Clean air regulations, for instance, significantly improve the health of workers and children, resulting in lower health care costs and more productive workers.”); Jan G. Laitos & Thomas A. Carr, The Transformation on Public Lands, 26 Ecology L.Q. 140, 174 (1999) (noting benefits to communities of shifts away from extractive industries); Schiffer & Heep, supra note 55.

 [57]. Cf. Fran Ansley, Standing Rusty and Rolling Empty: Law, Poverty, and America’s Eroding Industrial Base, 81 Geo. L.J. 1757, 1763 (1993) (noting that plant closures of 1980s and 90s were “both quantitatively and qualitatively different” than regular layoffs and socioeconomic transitions in the number, size, and frequency of closings, as well as “disturbing patterns in the types of jobs lost and the types of jobs gained”).

 [58]. See Robert Pollin & Brian Callaci, A Just Transition for U.S. Fossil Fuel Industry Workers, 27 Am. Prospect 88, 89 (2016).

 [59]. Id.

 [60]. Maanvi Singh, Gassy Cows Are Warming the Planet and They’re Here To Stay, Nat’l Pub. Radio: The Salt (Apr. 12, 2014), https://www.npr.org/sections/thesalt/2014/04/11/301794415/gassy-cows-are-warming-the-planet-and-theyre-here-to-stay (methane from livestock accounted for 39% of agricultural greenhouse gas emissions in 2011).

 [61]. Pollin & Callaci, supra note 58, at 89.

 [62]. See generally, e.g., Int’l Civil Aviation Org., Environmental Report 2010: Aviation and Climate Change (2010) (reporting that aviation accounts for around 2% of total CO2 emissions); Lisa J. Hanle et al., CO2 Emissions Profile of the U.S. Cement Industry (2004) (noting that cement production is a substantial CO2 emitter); U.S. Envtl. Prot. Agency,  Fast Fact: U.S. Transportation Sector Greenhouse Gas Emissions 1990–2015, at 1 (2017) (noting that transportation accounted for 27% of U.S. greenhouse gas emissions in 2015).

 [63]. Pollin & Callaci, supra note 58, at 89.

 [64]. Geisinger, supra note 52.

 [65]. Pollin & Callaci, supra note 58, at 88.

 [66]. Doorey, supra note 9, at 221 (“[N]ew regulations limiting emissions or requiring ‘green’ production equipment or techniques can affect production systems in ways that impact working conditions, cause layoffs, or create downward pressure on labour costs.”); Alana Semuels, Do Regulations Really Kill Jobs?, Atlantic (Jan. 19, 2017), https://www.theatlantic.com/business
/archive/2017/01/regulations-jobs/513563 (“Regulations that seek to make air and water cleaner can also cause concentrated job losses in certain industries and locations.”); see also Lands Council v. McNair, 494 F.3d 771, 779 (9th Cir. 2007) (finding that an injunction of timber harvest would force timber companies to lay off some or all of their workers); Schiffer & Heep, supra note 55, at 582.

No economic analysis can ignore the suffering of some rural communities, which bear the brunt of the economic pain associated with reduced federally subsidized timber supplies. In addition to lost jobs and the associated closure of local businesses, county governments are receiving lower U.S. Treasury payments resulting from timber sales at the same time the county’s social services are most in demand.

Id. (footnotes omitted).

 [67]. Cf. Hari M. Osofsky, The Geography of Justice Wormholes: Dilemmas from Property and Criminal Law, 53 Vill. L. Rev. 117, 122 (2008).

 [68]. Jia Lynn Yang, Does Government Regulation Really Kill Jobs? Economists Say Overall Effect: Minimal., Wash. Post (Nov. 13, 2011), https://www.washingtonpost.com/business/economy
/does-government-regulation-really-kill-jobs-economists-say-overall-effect-minimal/2011/10/19
/gIQALRF5IN_story.html?noredirect=on&utm_term=.f23e96256dfa.

 [69]. Doorey, supra note 9, at 203; Newell & Mulvaney, supra note 6; Evans & Phelan, supra note 23, at 333; Stevis & Felli, supra note 4, at 35.

 [70]. Leopold, supra note 18, at 417.

 [71]. Id.

 [72]. Id. at 416.

 [73]. Id. at 417.

 [74]. Id. at 468.

 [75]. Id.

 [76]. Id.

 [77]. But see Caleb Goods, A Just Transition to a Green Economy: Evaluating the Response of Australian Unions, 39 Austl. Bull. of Lab. 13, 15 (2013) (“A just transition clearly seeks to resolve the divisive jobs versus environment problem; however, actual union commitments to what a just transition response constitutes can be assessed as variable and unclear.”).

 [78]. Evans & Phelan, supra note 23, at 333.

 [79]. Int’l Labour Org., Guidelines for a Just Transition Towards Environmentally Sustainable Economies and Societies for All 3–4, 13 (2015) (advising governments to include implementing workers’ skills training and engaging workers and their representatives in the means to achieve low-carbon policies while creating and protecting employment).

 [80]. Farrell, supra note 33, at 45 (discussing environmental justice); Shelley Welton, Clean Electrification, 88 U. Colo. L. Rev. 571, 573 (2017) (discussing “clean energy justice,” or the idea that “the suite of policies boosting green jobs also creates a new genre of environmental justice challenges,” and other inequitable effects of clean energy policies); see Ruhl, supra note 13, at 407 (noting “climate justice” refers to the fact that climate change impacts will be felt unevenly throughout the world; the capacity to adapt to climate change is also unevenly distributed).

 [81]. See infra Section III.C; cf. Frederico Cheever & John C. Dernbach, Sustainable Development and Its Discontents, 4 Transnat’l Envtl. L. 247, 282 (2015) (rejecting criticisms of “sustainable development” as too vague to be useful).

 [82]. Swilling & Annecke, supra note 7, at xiii.

 [83]. Farrell, supra note 33, at 45, 49.

 [84]. Linda Lobao et al., Poverty, Place, and Coal Employment Across Appalachia and the United States in a New Economic Era, 81 Rural Soc. 343, 343 (2016); Judson Abraham, Just Transitions for the Miners: Labor Environmentalism in the Ruhr and Appalachian Coalfields, 39 New Pol. Sci. 218, 218 (2017); Alan Ramo & Deborah Behles, Transitioning a Community Away from Fossil-Fuel Generation to a Green Economy: An Approach Using State Utility Commission Authority, 15 Minn. J. L., Sci. & Tech. 505, 507 (2014) (“A significant barrier to transitioning to clean energy sources is the local economic dependency fostered by a fossil fuel economy.”).

 [85]. Lobao et al., supra note 84, at 377.

 [86]. Evans & Phelan, supra note 23, at 331 (alterations in original) (internal quotation omitted).

 [87]. Doorey, supra note 9, at 207.

 [88]. J. Mijin Cha, Labor Leading Climate: A Policy Platform to Address Rising Inequality and Rising Sea Levels in New York State, 34 Pace Envtl. L. Rev. 423, 446 (2017).

 [89]. Ramo & Behles, supra note 84, at 508.

 [90]. Evans & Phelan, supra note 23, at 333.

 [91]. Id. Australia and Canada have also embraced the narrow just transitions meaning. The Canadian Labour Council defines just transitions “as a political campaign to ‘ensure that the costs of environmental change [towards sustainability] will be shared fairly. Failure to create a just transition means that the cost of moves to sustainability will devolve wholly onto workers in targeted industries and their communities.’” Id. at 331.

 [92]. Should Equity Be a Goal of Economic Policy?, Int’l Monetary Fund (Jan. 1998), https://www.imf.org/external/pubs/ft/issues/issues16 (discussing economic equity as a principle that economic resources, such as income, wealth, and land ownership, should be distributed fairly).

 [93]. Doorey, supra note 9, at 201.

 [94]. Id.

 [95]. Id.

 [96]. Id. at 214.

 [97]. Id. at 238.

 [98]. Id. at 225 (“Also like labour law, environmental justice has roots in a bottom-up resistance movement critical of a dominant legal system that benefits economically and politically powerful, privileged segments of society. [Environmental justice] is a natural ally to labour law in a re-imagined legal field organized around . . . subordination and resistance.”).

 [99]. Id.

 [100]. Id. at 234.

 [101]. Id.

 [102]. Principles of Climate Justice, Mary Robinson Found.,  https://www.mrfcj.org/principles-of-climate-justice (last visited Feb. 1, 2019).

 [103]. Maxine Burkett, Just Solutions to Climate Change: A Climate Justice Proposal for a Domestic Clean Development Mechanism, 56 Buff. L. Rev. 169, 196 (2008); Ruhl, supra note 12, at 408.

 [104]. Doorey, supra note 9.

 [105]. See generally John Rawls, A Theory of Justice (1971).

 [106]. Alice Kaswan, Distributive Justice and the Environment, 81 N.C. L. Rev. 1031 passim (2003). See generally Guruswamy, supra note 51.

 [107]. Outka, supra note 7, at 64–65.

 [108]. Id.

 [109]. See generally Guruswamy, supra note 51.

 [110]. Outka, supra note 7, at 64.

 [111]. Evans & Phelan, supra note 23, at 333.

 [112]. Id. at 331.

[W]hile there is potential synergy between environmental justice and just transitions campaigns, a harmonious resolution of the two concepts is not guaranteed if the interests and aspirations within the community are poorly negotiated between the parties involved. A melding of environmental justice campaign goals on the one hand and labour movement goals on the other, is particularly challenged by the continuing hegemony of the ‘jobs versus environment’ discourse.

Id.

 [113]. Outka, supra note 7, at 62–63.

 [114]. John C. Dernbach, Creating Legal Pathways to a Zero Carbon Future, 46 Envtl. Law Rep. 10780, 10782 (2016).

 [115]. Outka, supra note 7, at 72–74.

 [116]. Dernbach, supra note 114, at 10782 (footnote omitted); see also Campbell, supra note 19, at 75.

[D]espite the perhaps inevitable criticisms of immeasurability and vagueness, sustainability has endured as a central principle in urban planning because its oppositional engagement with social justice and economic development continually reinvigorates sustainability planning, keeps the term relevant and inclusive, and grants the task of urban planning greater urgency.

Campbell, supra note 19, at 75.

 [117]. Rep. of the World Summit on Sustainable Dev., U.N. Doc A/CONF.199/20, at 2 (2002).

 [118]. Outka, supra note 7, at 64.

 [119]. Dernbach, supra note 114, at 33 (footnotes omitted).

 [120]. Id.

 [121]. See, e.g., Campbell, supra note 19, at 83; Edward H. Ziegler, American Cities and Sustainable Development in the Age of Global Terrorism: Some Thoughts on Fortress America and the Potential for Defensive Dispersal II, 30 Wm. & Mary Envtl. L. & Pol’y Rev. 95, 110 (2005) (“[S]ocial equity, and particularly intergenerational equity, along with resource conservation and environmental protection, are central concepts in sustainable development philosophy.”).

 [122]. These values are also referred to as “the three Es (Economy, Environment, and Equity)[.] [S]ustainable development is often defined as an endeavor that strives to maintain equilibrium between these domains.” Catherine L. Ross et al., Measuring Regional Transportation Sustainability: An Exploration, 43 Urb. Law. 67, 69 (2010).

 [123]. Outka, supra note 7, at 66; see also Campbell, supra note 19, at 76 (“The sustainability and social justice movements may be coming closer together, yet much still divides them into two separate conversations that frequently overhear each other without easily merging.”).

 [124]. Outka, supra note 7, at 85.

 [125]. Id. at 63; see also Campbell, supra note 19, at 77 (suggesting that environmental justice is an “important subset of the larger field of urban sustainability”).

 [126]. Outka, supra note 7, at 91.

 [127]. Id. at 122.

 [128]. Farrell, supra note 33, at 45.

 [129]. Cf. id. at 51. Farrell uses the broad just transitions meaning, but she also concludes that holistic decisionmaking is necessary going forward.

 [130]. Eisenberg, Alienation and Reconciliation, supra note 18.

 [131]. Melinda Harm Benson & Robin Kundis Craig, The End of Sustainability, 27 Soc’y & Nat. Res. 777, 779–80 (2014).

 [132]. Id.

 [133]. Robin Kundis Craig, “Stationarity Is Dead”—Long Live Transformation: Five Principles for Climate Change Adaptation Law, 34 Harv. Envtl. L. Rev. 9, 63–64 (2010).

 [134]. Robin Kundis Craig & J.B. Ruhl, Designing Administrative Law for Adaptive Management, 67 Vand. L. Rev. 1 (2014); Flatt & Payne, supra note 7 at 1081.

 [135]. Benson & Craig, supra note 131.

 [136]. The President’s Northwest Forest Plan, discussed below as an example of just transitions policy that aided communities hurt by the decline in the timber industry, lends weight to the potential of the just transitions concept to help bring sustainable development goals more in line with resilience theory, although the Plan itself is considered a mixed success. Susan Charnley, formerly of the U.S. Department of Agriculture, said of the Plan:

From a social perspective, the Northwest Forest Plan as a model for broad-scale ecosystem management is perhaps most valuable in its attempt to link the biophysical and socioeconomic goals of forest management by creating high-quality jobs for residents of forest communities in restoration, research, monitoring, and other forest stewardship activities that protect the environment.

Susan Charnley, The Northwest Forest Plan as a Model for Broad-Scale Ecosystem Management: A Social Perspective, 20 Conservation Biology 330, 338 (2006).

 [137]. See Cheever & Dernbach, supra note 81, at 251.

 [138]. Flatt & Payne, supra note 7, at 1079.

 [139]. Lazarus, supra note 27, at 787.

 [140]. Baker et al., supra note 11.

 [141]. Craig & Ruhl, supra note 134.

 [142]. Bell & York, supra note 40.

 [143]. Anne Marie Lofaso, What We Owe Our Coal Miners, 5 Harv. L. & Pol’y Rev. 87, 87 (2011).

 [144]. See, e.g., discussion infra Section IV.C about Native American community in mixed environmental justice/economic dependency relationship with coal-fired power plant.

 [145]. Ann M. Eisenberg, Beyond Science and Hysteria: Reality and Perceptions of Environmental Justice Concerns Surrounding Marcellus and Utica Shale Gas Development, 77 U. Pitt. L. Rev. 183, 199 (2015); see also Bell & York, supra note 40, at 119.

 [146]. Bell & York, supra note 40, at 119.

 [147]. Id.

 [148]. Id.

 [149]. Id.

 [150]. Id.

 [151]. Id. at 120.

 [152]. Lofaso, supra note 143, at 88.

 [153]. Bell & York, supra note 40, at 11920.

 [154]. Lofaso, supra note 143, at 89.

 [155]. Id.

 [156]. Id.

 [157]. David J. Blackley et al., Continued Increase in Prevalence of Coal Workers’ Pneumoconiosis in the United States, 1970-2017, 108 Am. J. of Pub. Health 1220, 1221 (2018).

 [158]. Appalachian Voices, The Human Cost of Mountaintop Removal Coal Mining: Mapping the Science Behind Health and Economic Woes of Central Appalachia 1 (2012).

 [159]. See generally Chad Montrie, To Save the Land and the People: A History of Opposition to Surface Coal Mining in Appalachia (2003).

 [160]. Lofaso, supra note 143, at 94–95.

 [161]. Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 250–52 (1917).

 [162]. Evan Andrews, The Battle of Blair Mountain, History (Aug. 25, 2016), http://www.history.com/news/americas-largest-labor-uprising-the-battle-of-blair-mountain.

 [163]. Brian C. Murchison, Due Process, Black Lung, and the Shaping of Administrative Justice, 54 Admin. L. Rev. 1025, 1026 (2002).

 [164]. Mona L. Hymel, Environmental Tax Policy in the United States: A “Bit” of History, 3 Ariz. J. Envtl. L. & Pol’y 157, 162 (2013).

 [165]. Janet Redman, Oil Change Int’l, Dirty Energy Dominance: Dependent on Denial: How the U.S. Fossil Fuel Industry Depends on Subsidies and Climate Denial 5 (2017).

 [166]. Mason Adams, A 40-Year-Old Federal Law Literally Changed the Appalachian Landscape, W.Va. Pub. Broadcasting (Aug. 5, 2017), http://wvpublic.org/post/40-year-old-federal-law-literally-changed-appalachian-landscape#stream/0.

 [167]. See Robert E. Beck, The Current Effort in Congress to Amend the Surface Mining Control and Reclamation Act of 1977 (SMCRA), 8 Fordham Envtl. L.J. 607, 617–18 (1997).

 [168]. Murchison, supra note 163, at 1027.

 [169]. Cf. Bailey H. Kuklin, The Plausibility of Legally Protecting Reasonable Expectations, 32 Val. U. L. Rev. 19, 19 (1997) (“[E]xpectations, particularly reasonable expectations, are at the heart of many legal doctrines. Contract, property and tort claims are often justified on the grounds that they protect reasonable expectations.”).

 [170]. See, e.g., Chris McGreal, America’s Poorest White Town: Abandoned by Coal, Swallowed by Drugs, Guardian (Nov. 12, 2015), https://www.theguardian.com/us-news/2015/nov/12/beattyville-kentucky-and-americas-poorest-towns.

 [171]. See Annalyn Censky, Coal ‘Ghost Towns’ Loom in West Virginia, CNN Money (May 26, 2011), http://money.cnn.com/2011/05/26/news/economy/west_virginia/index.htm.

 [172]. See Patrick McGinley, Collateral Damage: Turning a Blind Eye to Environmental and Social Injustice in the Coalfields, 19 J. Envtl. & Sustainability L. 305, 425 (2013) (noting that coal country’s sacrifice “ha[s] helped power and build a nation”).

 [173]. Kaplow, supra note 31, at 534 (“[M]ost commentators . . . defend mitigation of government risks, but not of market risks. Yet none of the distinctions they offer for treating government and market risks differently withstands scrutiny . . . . [T]here is little to distinguish losses arising from government and market risk.”).

 [174]. Trevor Houser et al., Columbia Ctr. on Global Energy Policy, Can Coal Make a Comeback? passim (2017), https://energypolicy.columbia.edu/sites/default/files/Center_on_Global
_Energy_Policy_Can_Coal_Make_Comeback_April_2017.pdf; Matt Egan, What Killed Coal? Technology and Cheaper Alternatives, CNN (Aug. 21, 2018), https://money.cnn.com/2018/08/21
/investing/coal-power-trump-epa/index.html; Andrew Sorensen, Natural Gas and Wind Energy Killed Coal, Not ‘War on Coal’, CU Boulder Today (May 7, 2018), https://www.colorado.edu/today/2018
/05/07/natural-gas-and-wind-energy-killed-coal-not-war-coal.

 [175]. Eisenberg, Beyond Science and Hysteria, supra note 145, at 207 (discussing exemptions for hydraulic fracturing in federal environmental statutes); see also Michael Pappas, A Right to be Regulated?, 24 Geo. Mason L. Rev. 99, 118–20 (2016) (arguing that regulatory changes may destroy the value of previously regulated utilities); cf. Christopher Serkin, Passive Takings: The State’s Affirmative Duty to Protect Property, 113 Mich. L. Rev. 345, 372–74 (2014) (“The harm resulting from inaction can be just as damaging as the harm resulting from overt action.”).

     [176].      Joseph L. Sax, Do Communities Have Rights—The National Parks as a Laboratory of New Ideas, 45 U. Pitt. L. Rev. 499, 499 (1983).

 [177]. Id.

 [178]. Id. at 500.

 [179]. Joseph Sax, Liberating the Public Trust Doctrine from Its Historical Shackles, 14 U.C. Davis L. Rev. 185, 187 (1980) (emphasis added).

 [180]. See id. at 186–88.

 [181]. Id.

 [182]. Cf. Legal Pathways to Deep Decarbonization in the United States (Michael B. Gerrard & John C. Dernbach eds. 2018); Chris Bataille et al., The Need for National Deep Decarbonization Pathways for Effective Climate Policy, 16 Climate Pol’y 1 (2016).

 [183]. See Frank Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv. L. Rev. 1180–81 (1967).

     [184].    Erin Fleaher Rogers, Agricultural Trade Adjustment Assistance: Food for Thought on the First Decade of the Newest Trade Adjustment Assistance Program, 23 Fed. Cir. B.J. 561, 562 (2014).

 [185]. Int’l Union v. Marshall, 584 F.2d 390, 395 (D.C. Cir. 1978).

 [186]. Id.

 [187]. See, e.g., Malcolm Bale & John Mutti, Income Losses, Compensation, and International Trade, 13 J. Hum. Resources 278, 283–84 (1978); Joseph Singer, The Reliance Interest in Property, 40 Stanford L. Rev. 3 (1988); Seth Mydans, Displaced Aerospace Workers Face Grim Future in California Economy, N.Y. Times (May 3, 1995), https://www.nytimes.com/1995/05/03/us/displaced-aerospace-workers-face-grim-future-in-california-economy.html. See generally Does Regulation Kill Jobs? (Cary Coglianese et al., eds. 2015).

 [188]. See Bale & Mutti, supra note 187; Singer, supra note 187; Mydans, supra note 187.

 [189]. Philip Levine, Towards a Property Right in Employment, 22 Buff. L. Rev. 1081 (1973); Robert Meltz, Takings Law Today: A Primer for the Perplexed, 34 Ecology L.Q. 307, 321 (2007). Takings jurisprudence does not recognize as property “the mere ability to conduct a business, as something separate from the business’ assets” or “permits and licenses if nontransferable and revocable.”  Meltz, Takings Law Today, supra, at 321. In a 1933 opinion in Lynch v. United States, the Court held that valid contracts could be property for takings purposes.  Lynch v. United States, 292 U.S. 571, 571 (1933). In 1995, however, the U.S. Court of Appeals for the Seventh Circuit observed that the Court effectively overruled Lynch in 1986 “to the extent that [Lynch] flatly holds that contracts are property that the government may not take without compensation . . . [an] analysis [that] does not resemble the takings jurisprudence of today.” Pro-Eco, Inc. v. Bd. of Comm’rs of Jay Cty., Ind., 57 F.3d 505, 510 n.2 (7th Cir. 1995) (discussing Connolly v. Pension Benefit Guarantee Corp., 475 U.S. 211 (1986)).

 [190]. Doremus, supra note 31, at 3 (“Regulatory takings claims are fundamentally conflicts over legal transitions. They arise when the rules change, those changes are costly (in economic or other terms), and the people bearing the costs believe that they are being unfairly singled out.”).

 [191]. James Manyika et al., Jobs Lost, Jobs Gained: What the Future of Work Will Mean for Jobs, Skills, and Wages, McKinsey Global Inst. (Nov. 2017), https://www.mckinsey.com/featured-insights/future-of-work/jobs-lost-jobs-gained-what-the-future-of-work-will-mean-for-jobs-skills-and-wages; James Doubek, Automation Could Displace 800 Million Workers Worldwide by 2030, Study Says, Nat’l Pub. Radio (Nov. 30, 2017), https://www.npr.org/sections/alltechconsidered/2017/11/30
/567408644/automation-could-displace-800-million-workers-worldwide-by-2030-study-says.

 [192]. See, e.g., Maggie Fox, Death Maps Show Where Despair Is Killing Americans, NBC (Mar. 13, 2018), https://www.nbcnews.com/health/health-news/death-maps-show-where-despair-killing-americans-n856231; Alec MacGillis, The Original Underclass, Atlantic (Sept. 2016), https://www.theatlantic.com/magazine/archive/2016/09/the-original-underclass/492731.

 [193]. Cf. Intergovernmental Panel on Climate Change, Summary for Policymakers of IPCC Special Report on Global Warming of 1.5C Approved by Governments (2018), https://www.ipcc.ch/pdf/session48/pr_181008_P48_spm_en.pdf.

 [194]. Ruhl, supra note 12, at 392.

 [195]. See Todd S. Aagaard, Environmental Law Outside the Canon, 89 Ind. L.J. 1239, 1241 (2014).

 [196]. Id. at 1240.

 [197]. Id. at 1251–54.

 [198]. Zygmunt J.B. Plater, From the Beginning, a Fundamental Shift of Paradigms: A Theory and Short History of Environmental Law, 27 Loy. L.A. L. Rev. 981, 1002 (1994).

 [199]. See generally Rachel Carson, Silent Spring (1962).

 [200]. Jonathon Adler, The Fable of the Burning River, 45 Years Later, Wash. Post (June 22, 2014), https://wapo.st/1lgHyz8?tid=ss_tw&utm_term=.e1b92a32a102.

 [201]. Plater, supra note 198 passim.

 [202]. See Daniel A. Farber, Politics and Procedure in Environmental Law, 8 J.L. Econ. & Org. 59, 60 (1992).

 [203]. Id.

 [204]. Id

 [205]. Id.

 [206]. Id. at 61.

 [207]. Daniel A. Farber, The Conservative as Environmentalist: From Goldwater and the Early Reagan to the 21st Century, 59 Ariz. L. Rev. 1005, 1007 (2017).

 [208]. Id.

 [209]. See generally Jonathan Mingle, Fighting for the Future, 5 Environment@Harvard 1 (2013).

 [210]. Lydia Saad, Global Warming Concern at Three-Decade High in U.S., Gallup (Mar. 14, 2017), http://news.gallup.com/poll/206030/global-warming-concern-three-decade-high.aspx; Robinson Meyer, What Americans Really Think About Climate Change, Atlantic (Apr. 22, 2017), https://www.theatlantic.com/science/archive/2017/04/climate-polling-burnout/523881.

 [211]. Sebastien Malo & Sophie Hares, On the Boil: Five Climate Lawsuits to Watch in 2018, Reuters (Dec. 27, 2017), https://www.reuters.com/article/us-global-climatechange-lawsuit-factbox
/onthe-boil-five-climate-lawsuits-to-watch-in-2018-idUSKBN1EM0J7.

 [212]. For example, California achieved its 2020 target for reduced greenhouse gas emissions four years early, see Cal. Air Resources Board, California Greenhouse Gas Emissions for 2000 to 2016 (2008), https://www.arb.ca.gov/cc/inventory/pubs/reports/2000_2016/ghg_inventory_trends_00-16.pdf, plaintiffs seeking more stringent regulations have succeeded in litigation based on the Clean Air Act, the Endangered Species Act, and the California Environmental Quality Act, see Sabrina McCormick et al., Strategies In and Outcomes of Climate Change Litigation in the United States, 8 Nature Climate Change 829 (2018), and major cities have committed to aggressive greenhouse gas reductions as well as the goal of limiting global warming to one-and-a-half degrees Celsius, Milman et al., The Fight Against Climate Change: Four Cities Leading the Way in the Trump Era, Guardian (June 12, 2017), https://www.theguardian.com/cities/2017/jun/12/climate-change-trump-new-york-city-san-francisco-houston-miami.

 [213]. Ruhl, supra note 12, at 411–12.

 [214]. Andrew Rowell, Green Backlash: Global Subversion of the Environmental Movement (1996).

 [215]. Eisenberg, Beyond Science and Hysteria, supra note 145, at 200; Eisenberg, Alienation and Reconciliation, supra note 18, at 154.

 [216]. McGinley, supra note 1702, at 316.

 [217]. Bell & York, supra note 40, at 139.

 [218]. Brian Obach, Labor and the Environmental Movement: The Question for Common Ground (2004).

 [219]. Id. at 9.

 [220]. Id. at 11.

 [221]. Eisenberg, Alienation and Reconciliation, supra note 18, at 140–47.

 [222]. Id.; Doorey, supra note 9, at 221.

 [223]. Jenna Hanson, The Modern Environmental Movement’s Big Failure, Pac. Standard (Apr. 17, 2015), https://psmag.com/environment/the-modern-environmental-movements-big-failure. But see Montrie, supra note 159 (discussing the untold history of popular opposition to environmental degradation).

 [224]. Hanson, supra note 223.

 [225]. Id.

 [226]. Lisa R. Pruitt & Linda T. Sobczynski, Protecting People, Protecting Places: What Environmental Litigation Conceals and Reveals About Rurality, 47 J. Rural Stud. 326, 326 (2016).

 [227]. Eisenberg, Alienation and Reconciliation, supra note 18, at 145.

 [228]. Id.

[229].     Farber, Politics and Procedure, supra note 202, at 60.

 [230]. Id.

 [231]. Cf. Kathy Mulvey et al., Union of Concerned Scientists, The Climate Accountability Scorecard: Ranking Major Fossil Fuel Companies on Climate Deception, Disclosure, and Action (2016), https://www.ucsusa.org/sites/default/files/attach/2016/10/climate-accountability-scorecard-full-report.pdf.

 [232].  Eisenberg, Alienation and Reconciliation, supra note 18, at 173.

 [233].  See generally Hari Osofsky & Jacqueline Peel, Energy Partisanship, 65 Emory L.J. 695 (2016) (discussing how environmental reform may be possible by tempering partisanship).

 [234]. Trade Act of 1974, 19 U.S.C. § 2101 (2012); 20 C.F.R. § 617.2 (2018).

 [235]. See, e.g., Trade Adjustment Assistance for Workers, Emp. & Training Admin., https://doleta.gov/tradeact (last visited Feb. 5, 2019).

 [236]. 19 U.S.C.. § 2251(a) (2012); Rogers, supra note 184 (“While the program initially provided aid only to workers, businesses, and communities, it was expanded in 2002 to cover farmers and fishermen through the Agricultural Trade Adjustment Assistance program.”); see also Stephen Kim Park, Bridging the Global Governance Gap: Reforming the Law of Trade Adjustment, 43 Geo. J. Int’l L. 797, 817–39 (2012) (discussing rationales for trade adjustment assistance).

 [237]. Int’l Union, UAW v. Marshall, 584 F.2d 390, 395 (D.C. Cir. 1978).

 [238]. Id.

 [239]. 19 U.S.C. § 2271 (2012); Petition Filing Frequently Asked Questions (FAQ), U.S. Dep’t of Labor (Aug. 31, 2018), https://doleta.gov/tradeact/petitioners/FAQ_Answers.cfm#G4.

 [240]. Investing in Trade-Affected Workers, U.S. Dep’t of Labor (Aug. 31, 2018), https://doleta.gov/tradeact/petitioners/petitionprocess.cfm; see also Benjamin Collins, Cong. Res. Serv.  Trade Adjustment Assistance for Workers and the TAA Reauthorization Act of 2015 (2018), https://fas.org/sgp/crs/misc/R44153.pdf (“Individual benefits are funded by the federal government and administered by state agencies through their workforce systems and unemployment insurance systems.”).

 [241]. Rogers, supra note 184, at 568.

 [242]. Id. at 568–69.

 [243]. Malcolm Bale & John Mutti, Income Losses, Compensation, and International Trade, 13 J. Hum. Resources 278, 283–84 (1978).

 [244]. See Lori G. Kletzer, Job Loss from Imports: Measuring the Costs 78 (2001).

 [245]. Designing a National Strategy for Responding to Economic Dislocation: Hearing Before the Subcomm. on Investigations and Oversight of the H. Comm. on Science and Technology, 110th Cong. 1 (2008) (testimony of Howard Rosen, Executive Director, Trade Adjustment Assistance Coalition).

 [246]. Shana Fried, Note, Strengthening the Role of the U.S. Court of International Trade in Helping Trade-Affected Workers, 58 Rutgers L. Rev. 747, 748 (2006); see also Steven T. O’Hara, Worker Adjustment Assistance: The Failure & The Future, 5 Nw. J. Int’l. L. & Bus. 394, 395              –96 (1983).

 [247]. See Fran Ansley, Standing Rusty and Rolling Empty: Law, Poverty, and America’s Eroding Industrial Base, 81 Geo. L.J. 1757, 1881 (1993); see also Park, supra note 236 passim; Fried, supra note 246 passim.

 [248]. Seattle Audubon Soc’y v. Mosley, 798 F. Supp. 1484, 1490 (W.D. Wash. 1992) (stating that endangering the northern spotted owl violated the National Forest Management Act, 16 U.S.C. § 1600).

 [249]. See, e.g., Portland Audubon Soc’y v. Lujan, 795 F. Supp. 1489, 1510 (D. Or. 1992), aff’d sub nom. Portland Audubon Soc’y v. Babbitt, 998 F.2d 705 (9th Cir. 1993).

 [250]. See Am. Forest Res. Council v. Shea, 172 F. Supp. 2d 24,  (D.D.C. 2001); Michael C. Blumm & Tim Wigington, The Oregon & California Railroad Grant Land’s Sordid Past, Contentious Present, and Uncertain Future: A Century of Conflict, 40 B.C. Envtl. Aff. L. Rev. 1, 4–5 (2013); Robert B. Keiter, Toward a National Conservation Network Act: Transforming Landscape Conservation on the Public Lands into Law, 42 Harv. Envtl. L. Rev. 62, 122 (2018).

 [251]. See, e.g., Seattle Audubon Soc’y v. Lyons, 871 F. Supp. 1291, 1307 (W.D. Wash. 1994) (rejecting a challenge to the scope of the federal government’s discretion in adopting the legislation); Kristin Carden, Bridging the Divide: The Role of Science in Species Conservation Law, 30 Harv. Envtl. L. Rev. 165, 245­–48 (2006).

 [252]. Schiffer & Heep, supra note 55, at 577.

 [253]. Id. at 582.

 [254]. Paul Koberstein, Will the Northwest Forest Plan Come Undone?, High Country News (Apr. 7, 2015), https://www.hcn.org/articles/will-the-northwest-forest-plan-come-undone.

 [255]. Schiffer & Heep, supra note 55, at 582. Charnley, supra note 136, at 286–87 (noting that the program met with mixed successes but suggesting that certain changes could have made it more successful); Michelle W. Anderson, The Western, Rural Rustbelt: Learning from Local Fiscal Crisis in Oregon, 50 Willamette L. Rev. 465, 503 (2014) (noting that NWFP’s job development programs, focused on common phenomenon of overlap between areas with economic hardship and areas with at-risk species, indicate that economic development should be cornerstone of environmental activism).

 [256]. Schiffer & Heep, supra note 55, at 577.

 [257]. Id. at 582.

 [258]. Carey Catherine Whitehead, Wielding a Finely Crafted Legal Scalpel: Why Courts Did Not Cause the Decline of the Pacific Northwest Timber Industry, 38 Envtl. L. 979, 1012 (2008) (discussing intermingled factors contributing to decline of regional timber industry, and economists’ struggle to separate effects of injunctions and general recession on regional timber industry).

 [259]. Koberstein, supra note 254.

 [260]. Id.

 [261]. Jack Ward Thomas et al., The Northwest Forest Plan: Origins, Components, Implementation Experience, and Suggestions for Change, 20 Conservation Biology 277, 283 (2006); see also Ted Helvoigt et al., Employment Transitions in Oregon’s Wood Products Sector During the 1990s, 101 J. Forestry 42, 42–46 (2003)              .

 [262]. Michael C. Blumm & Tim Wigington, The Past as Prologue to the Present Managing the Oregon and California Forest Lands, Or. St. B. Bull., July 2013, at 24, 25.

 [263]. Id. at 27.

 [264]. Anderson, supra note 255, at 470.

 [265]. Blumm & Wiginton, supra note 262, at 29.

 [266]. Craig P. Raysor, From the Sword to the Pen: A History and Current Analysis of U.S. Tobacco Marketing Regulations, 13 Drake J. Agric. L. 497, 512, 525 (2008) (noting inter alia problem of non-diversification of tobacco farms in early twentieth century).

 [267]. See id. See generally Juliana v. United States, 339 F. Supp. 3d 1062 (D. Or. 2018).

 [268]. 7 C.F.R. § 1463.1 (2018); Ryan D. Dreveskracht, Forfeiting Federalism: The Faustian Pact with Big Tobacco, 18 Rich. J.L. & Pub. Int. 291, 308 (2015).

 [269]. Dreveskracht, supra note 268, at 308; see also Tobacco Transition Payment Program: Examination Treatment of Assets Related to the Tobacco Transition Payment Program, Fed. Deposit Ins. Corp. (Aug. 3, 2005), https://www.fdic.gov/news/news/financial/2005/fil7305.html.

 [270]. Tobacco Transition Payment Program, supra note 269; see also Fair and Equitable Tobacco Reform Act of 2004, Pub. L. No. 108-357, 118 Stat. 1521 (codified at 7 U.S.C. § 518 (2012)); Joseph C. Robert, The Story of Tobacco in America 210 (1949).

 [271]. See, e.g., Tobacco Transition Payment Program, U.S. Dep’t of Agric., https://www.fsa.usda.gov/FSA/webapp?area=home&subject=toba&topic=landing (last updated Jan. 30, 2013).

 [272]. See generally Helen Pushkarskaya & Maria I Marshall, Lump Sum Versus Annuity: Choices of Kentucky Farmers During the Tobacco Buyout Program, 41 J. Agric. and Applied Econ. 613, 614 (2009).

 [273]. 5 West’s Fed. Admin. Prac. Income Support Programs—Tobacco § 5510, Westlaw (database updated July 2018) [hereinafter Income Support Programs—Tobacco].

 [274]. 7 U.S.C. § 518b (2012).

 [275]. Income Support Programs—Tobacco, supra note 273.

 [276]. Nathan Bomey, Thousands of Farmers Stopped Growing Tobacco After Deregulation Payouts, USA Today (Sept. 2, 2015), https://www.usatoday.com/story/money/2015/09/02/thousands-farmers-stopped-growing-tobacco-after-deregulation-payouts/32115163.

 [277]. Id.

 [278]. Id.

 [279]. Dreveskracht, supra note 268, at 312.

 [280]. Blake Brown, The End of the Tobacco Transition Payment Program, N.C. St. Univ. (Nov. 14, 2013), https://tobacco.ces.ncsu.edu/wp-content/uploads/2013/11/The-End-of-the-Tobacco-Transition-Payment-Program.pdf?fwd=no.

 [281]. Press Release, Office of the Press Sec’y, Fact Sheet: Administration Announces New Economic and Workforce Development Resources for Coal Communities Through POWER Initiative (Aug. 24, 2016), https://obamawhitehouse.archives.gov/the-press-office/2016/08/24/fact-sheet-administration-announces-new-economic-and-workforce.

 [282]. POWER Initiative, Appalachian Regional. Commission (last visited Feb. 5, 2019), https://www.arc.gov/funding/power.asp; ARC Seeks Funds for Coal-Impacted Communities, Fayette Trib. (Feb. 5, 2018), http://www.fayettetribune.com/news/arc-seeks-funds-for-coal-impacted-communities/article_cbae624e-09dc-11e8-896a-1f98f0f3a842.html.

 [283]. Appalachian Reg’l. Comm’n, FY 2019 Performance Budget Justification 5 (2018), https://www.arc.gov/images/newsroom/publications/fy2019budget/FY2019PerformanceBudgetFeb2018.pdf.

 [284]. POWER Initiative, supra note 282; see also Appalachian Reg’l Comm’n, POWER Awards, October 2018, https://www.arc.gov/images/grantsandfunding/POWER2018
/ARCEconDiversificationAwardsSummaries10-11-2018.pdf.

 [285]. Richard L. Revesz, Regulation and Distribution, 93 N.Y.U. L. Rev. 1489, 155055 (2018) (discussing both failed and implemented congressional and executive efforts to assist coal communities and workers, including the POWER Initiative (implemented), POWER Plus (failed), the Abandoned Mine Land Economic Revitalization (“AMLER”) Program (failed), and the Revitalizing the Economy of Coal Communities by Leveraging Local Activities and Investing More (“RECLAIM”) Act (failed)).

 [286]. Malcom Bale & John Mutti, Income Losses, Compensation, and International Trade, 13 J. Hum. Resources 278, 280 (1978).

 [287]. Id.

 [288]. Brown, supra note 280.

 [289]. See Council of Econ. Advisers, Strengthening the Rural Economy—The Current State of Rural America, White House: President Barack Obama (Apr. 27, 2010), https://obamawhitehouse
.archives.gov/administration/eop/cea/factsheets-reports/strengthening-the-rural-economy/the-current-state-of-rural-america.

 [290]. See U.S. Dep’t of Labor, Current Employment Statistics Survey: 100 Years of Employment, Hours, and Earnings, Bureau Lab. Stat. (Aug. 2016), https://doi.org/10.21916/mlr.2016.38.

 [291]. See Reihan Salam, Taxi-Driver Suicides Are a Warning, Atlantic (June 5, 2018), https://www.theatlantic.com/politics/archive/2018/06/taxi-driver-suicides-are-a-warning/561926.

 [292]. Phil McCausland, Sixth New York City Cab Driver Dies of Suicide After Struggling Financially, NBC News (June 16, 2018), https://www.nbcnews.com/news/us-news/sixth-new-york-city-cab-driver-dies-suicide-after-struggling-n883886; Nikita Stewart & Luis Ferré-Sadurní, Another Taxi Driver in Debt Takes His Life. That’s 5 in 5 Months., N.Y. Times (May 27, 2018), https://www.nytimes.com/2018/05/27/nyregion/taxi-driver-suicide-nyc.html.

 [293]. Henry Goldman, Hyperdrive: NYC Is Set to Impose a Cap on Uber, Bloomberg (Aug. 6, 2018), https://www.bloomberg.com/news/articles/2018-08-06/nyc-set-to-impose-cap-on-uber-as-ride-hail-vehicles-clog-streets.

 [294]. See Just Transition: A Framework for Change, Climate Just. Alliance, https://climatejusticealliance.org/just-transition (Last visited Feb. 6, 2019) (listing gentrification as scenario warranting just transition considerations).

 [295]. See Ramo & Behles, supra note 84, at 509.

 [296]. Id. at 509–10.

 [297]. Id. at 510.

 [298]. Id. at 512–13.

 [299]. Id. at 515.

 [300]. Id. at 513.

 [301]. Id. at 517.

 [302]. Id. at 520.

 [303]. Id.

 [304]. Id.

 [305]. Id. at 519.

 [306]. Id. at 521.

 [307]. Id. at 525–26.

 [308]. See id. at 522.

 [309]. Id. at 523–25.

 [310]. Id. at 526.

 [311]. See, e.g., J. Mijin Cha, Labor Leading on Climate: A Policy Platform to Addressing Rising Inequality and Rising Sea Levels in New York State, 34 Pace Envtl. L. Rev. 423, 447 (2017) (citing Mohave example as positive outcome).

 [312]. Eisenberg, Alienation and Reconciliation, supra note 18, at 138.

 [313]. Id.

 [314]. See generally Ky. Ctr. for Econ. Dev., Just the Facts: Kentucky Business Investment Program (2018), http://thinkkentucky.com/kyedc/pdfs/KBIFactSheet.pdf?57.

 [315]. Parija Kavilanz, How This Kentucky Coal Town Is Trying to Bring its Economy Back to Life, CNN (Nov. 8, 2017), https://money.cnn.com/2017/11/08/news/economy/hazard-kentucky-coal-jobs
/index.html.

 [316]. Slav Kornik, Alberta Puts Up $40M to Help Workers Transition During Coal-Power Phase-Out, Global News (Nov. 10, 2017), https://globalnews.ca/news/3855043/alberta-puts-up-40m-to-help-workers-transition-during-coal-power-phase-out; see also A Just Transition: The Way Forward for Coal Communities, Energy Transition (Feb. 20, 2017), https://energytransition.org/2017/02/a-just-transition-the-way-forward-for-coal-communities (discussing transitions for coal communities in Germany).

 [317]. See Joshua Macey & Jackson Salovaara, Bankruptcy as Bailout: Coal, Chapter 11, and the Erosion of Federal Law, 71 Stan. L. Rev. 137 passim (2019); see also Eisenberg, Beyond Science and Hysteria, supra note 145, at 207.

 [318]. See Macey & Salovaara, supra note 317 passim.

 [319]. See, e.g., Katy Stech Ferek, Coal Company Armstrong Energy Files for Chapter 11 Bankruptcy Protection, Wall St. J. (Nov. 1, 2017), https://www.wsj.com/articles/coal-company-armstrong-energy-files-for-chapter-11-bankruptcy-protection-1509548753.

 [320]. Ethan Lipsig & Keith R. Fentonmiller, A WARN Act Road Map, 11 Lab. Law. 273, 273 (1996).

 [321]. Nicole C. Snyder & Scott E. Randolph, Understanding the Federal WARN Act and Its Impact on the Sale of A Business, 52 Advocate 29, 29 (2009).

 [322]. Id.

 [323]. Lipsig & Fentonmiller, supra note 320, at 273.

Justice or Just Us?: SFFA v. Harvard and Asian Americans in Affirmative Action – Note by Cynthia Chiu

From Volume 92, Number 2 (January 2019)
DOWNLOAD PDF


 

Justice or Just Us?:
SFFA v. Harvard and Asian Americans in Affirmative Action

Cynthia Chiu[*]

TABLE OF CONTENTS

INTRODUCTION

I. The Current Affirmative Action STANDARD

II. The Role of Asian Americans in
Affirmative Action

A. History of Asian Americans and Affirmative Action

B. A History of Discrimination Against Asian Americans

C. The Racial Bourgeoisie

III. STUDENTS FOR FAIR ADMISSIONS V. HARVARD

A. The Procedural History and Current Status of
SFFA v. Harvard

B. SFFA’s Arguments

1. Count I: Harvard Intentionally Discriminates Against
Asian Americans

2. Count II: Harvard Engages in Racial Balancing

3. Count III: Harvard Considers Race as More than Just
a “Plus Factor”

4. Count V: Harvard Has Failed to Show There Are
no Workable Race-Neutral Alternatives

D. Criticisms of SFFA’s Arguments

1. The Arguments in the Complaint Are Flawed

2. Logical Fallacies

IV. Asian Americans and Affirmative Action
in the Future

A. Diversity Re-Evaluated

B. Unity with Other Minorities

Conclusion

 

INTRODUCTION

Here is what I sometimes suspect my face signifies to other Americans: an invisible person, barely distinguishable from a mass of faces that resemble it. A conspicuous person standing apart from the crowd and yet devoid of any individuality. An icon of so much that the culture pretends to honor but that it in fact patronizes and exploits. Not just people “who are good at math” and play the violin, but a mass of stifled, repressed, abused, conformist quasi-robots who simply do not matter, socially or culturally.[1]

I can recall excitedly filling out my college applications in the fall of 2010. I can recall writing my application essay about my experience at a private, all-girls Catholic high school. I can recall being told to volunteer more and to join speech and debate. I can recall being told that playing four years of varsity tennis would make me appear more well-rounded. I can recall being told to not check the “Asian” box when the application asked for my ethnicity. At eighteen years old, this sounds like being told it is better to be anything besides exactly who you are. I can recall feeling that it was not enough to be the daughter of a first-generation immigrant from China and the granddaughter of Japanese American citizens interned during World War II.[2] The appropriate box for me was apparently “Other.”[3]

This revelation about my own experience was necessary to understand the frustration felt by the Asian American community regarding college admissions. While this frustration may be well-founded, the Asian American community is not unified on what the appropriate reaction to it should be. On one hand, the model minority myth[4] perpetuates a stereotype that portrays Asian Americans as successful. But on the other hand, Asian Americans feel wide-spread discrimination that goes unrecognized due to an image of them as achievers of the “American Dream.” This places Asian Americans in a precarious middle ground as a “racial bourgeoisie”[5]stuck between being viewed as “superior” but feeling inferior. Asian Americans should be cautioned, though, that serving in this racial middle ground runs the risk of “reinforc[ing] white supremacy if the middle deludes itself into thinking it can be just like white if it tries hard enough.”[6] Asian Americans have long been left out of the whiteblack affirmative action debate, and this opportunity to speak out should not be tarnished by being used as a tool to further white images at elite universities.

This Note examines the arguments made in Students for Fair Admissions v. Harvard College, which allege that Harvard’s consideration of race is a violation of Title VI of the Civil Rights Act of 1964 because it is not narrowly tailored to a compelling interest of diversity.[7] The complaint filed by Students for Fair Admissions (“SFFA”)[8] came off the back of Justice Alito’s comments in his dissent in Fisher v. University of Texas at Austin (Fisher II), which proposed the possibility that Asian Americans may face discrimination in admissions.[9] While this was an important inclusion of Asian Americans in the discussion, Justice Alito’s comments in Fisher II perpetuated the logical fallacy that Asian Americans[10] are losing admission spots to African Americans and Hispanic Americans due to affirmative action, and may have encouraged the initiation of SFFA’s action against Harvard College. However, while the frustration experienced by many in the Asian American community over what feels like racial ceilings on Asian American admissions at elite universities is valid, these ceilings are the result of negative action aimed against Asian Americans, not the result of affirmative action. Prohibiting universities from considering race as part of a holistic admissions process will not eliminate the negative action felt by Asian Americans.

SFFA’s use of Asian Americans to target affirmative action is a parallel to the double movement that occurred in the nineteenth century. While there was a movement toward inclusion based on increased egalitarianism among white males to reduce barriers based on wealth and property ownership, there was also a movement toward exclusion of African Americans, women, Native Americans, and non-white immigrants.[11] SFFA and the organization’s creator, Edward Blum, move to include Asian Americans as part of the group deemed worthy enough to “earn” spots at elite universities only to maintain the dominance needed to continue to exclude other groups. The status that is ascribed to different groups comes with a series of stereotypes and associations that the larger, dominant group naturalizes to determine whether the group is eligible for certain benefits, like admission to elite universities.[12] Asian Americans should be wary about their sudden inclusion in this larger group, when they had for so long been denied eligibility for status as citizens and still continue to be given the stereotype of “perpetual foreigner.”[13] Similar to the poor white males of the nineteenth century, the inclusion of Asian Americans could simply be used to maintain the dominance of wealthy white[14] males and to perpetuate a “white image” in elite universities.

Part I of this Note examines the current standard of affirmative action: that the only acceptable justification for race-conscious admissions policies is one of educational diversity. Part II discusses the role of Asian Americans in the affirmative action discussion, with an understanding that Asian Americans have been subject to unrecognized historical discrimination and treated as a “racial bourgeoisie”[15] due to perpetuation of the model minority myth. Part III describes the background and status of SFFA v. Harvard, analyzes the complaint’s arguments, including those made at trial, and criticizes the bases for the complaint. Part IV suggests that the future role of Asian Americans in the affirmative action discussion is one of increased political activeness and unity and argues for a change in the way elite universities value Asian American diversity when assessing applicants in a holistic process.

I.  The Current Affirmative Action STANDARD

All racial classifications are subject to strict scrutiny, even where the classification is non-invidious as it is for affirmative action. This requires the means to be narrowly tailored to a compelling government interest.[16] For affirmative action, Regents of the University of California v. Bakke established that diversity, through its educational benefits, is a compelling state interest under strict scrutiny analysis.[17] Diversity was originally conceived as simply racial diversity; however, Justice Powell’s majority opinion in Bakke advocates for a diversity that goes beyond race to include diversity of ideas, opinions, and backgrounds in order to improve the educational experience.[18] The Court explicitly bans the use of a quota system where race is used as a dispositive factor in admissions, but it permits race to be used as one of many factors in the diversity consideration.[19] There is a clear rejection of race being used as a permissible factor in admissions as a means to remedy past discrimination; instead, the Court focuses on the instrumental justification, which states that race can provide educational benefits by accepting candidates with diverse experiences. Justice Powell specifically cites to Harvard’s admissions policy, which uses race as one of many “plus factors, in a holistic consideration of an applicant, as a permissible example of a policy that would allow an institution to maintain freedom in its academic goals.[20]

Justice Powell’s opinion in Bakke created the blueprint for the Court in Grutter v. Bollinger to firmly establish that diversity is the only justification for race-conscious admissions policies that would satisfy strict scrutiny.[21] The Court continued to recognize that there were educational benefits[22] from diversity that could satisfy a compelling government interest.[23] Grutter determined that admissions policies seeking to obtain a “critical mass” of diverse students were not a violation of the prohibitions against racial balancing and proportional representation.[24] Critical mass does not refer to a specific quota or percentage, but refers to “meaningful numbers” sufficient to “encourage[] underrepresented minority students to participate in the classroom and not feel isolated.[25] The Court gives institutions of higher education deference in deciding whether they need diversity to pursue their educational mission.[26] Once the university determines diversity to be one of its educational goals, a race-conscious admissions policy is permissible only if race is used as merely a “plus factor in the context of a holistic process that involves individualized consideration.[27] Individualized consideration allows a university to balance academic selectivity with the need for diversity, without sacrificing academic excellence in attempts to achieve race-neutral alternatives.[28] Grutter established that “narrow tailoring . . . require[s] serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks.”[29] However, what this goodfaith consideration would require and whether the threshold of critical mass for a university would be given deference were not addressed until Fisher v. University of Texas (Fisher I).[30]

Fisher I established that universities must show that the means used to achieve their diversity interest are narrowly tailored, as the court will not simply defer to the university on this issue.[31] To satisfy the narrowly tailored requirement, a university must show its admissions policy is necessary to achieve the educational benefits of diversity and that no race-neutral alternative is workable.[32] The Court in Fisher I ordered the University of Texas at Austin to show that they had exhausted race-neutral alternatives and reviewed the findings in Fisher II.[33] In Fisher II, the Court determined that the University of Texas at Austin had to show that a critical mass had not already been achieved through its race-neutral Top Ten Percent Plan.[34] However, the University of Texas’s goals did not need to be a precise number because a critical mass of diversity is qualitative, not quantitative.[35] The Court ultimately gave deference to the university’s goodfaith efforts to achieve diversity and accepted the argument that the university had not achieved critical mass.[36] Although Fisher I seemed to be arguing that the Court would require proof that there were no workable race-neutral alternatives, the Court in Fisher II seemed to give deference to the university on whether the race-neutral alternatives were good enough, or “workable,” to achieve its diversity goals.[37] This leaves the state of affirmative action in a similar place to where it was in Grutter.

Grutter’s conception of diversity is the current model[38] under which affirmative action is able to fulfill the function of a compelling interest,[39] but this has several limitations. Grutter specifically connects the value of diversity to education,[40] while also inflating the idea of critical mass as something that can be both a quantitatively meaningful number and a means of addressing diversity’s qualitative benefits.[41] It pursues diversity for its instrumental value and rejects any remedial justification, leading to the conception of diversity as one of integration rather than an effort to provide equal opportunity.[42] It does not distinguish “exploitative” from “egalitarian” objectives, which creates an equal opportunity problem—one that will continue to exist so long as there are hindrances unique to minorities that prevent any given admission “spot” from being fungible.[43]

II.  The Role of Asian Americans in Affirmative Action

Asian Americans have a complicated history with affirmative action that has developed into a divided stance on the topic within the Asian American community.[44] Adding to this complexity is the difficulty in establishing whether the objective of affirmative action is to seek equality in outcomes for a racial group or equality in opportunity for individual applicants.[45] For Asian Americans, the way in which the purpose of affirmative action is conceived greatly impacts what “side” of the debate feels fair.[46] There is confusion among the Asian American community about what affirmative action actually entails, leading some to misplace blame for what may be “hidden quotas to keep down Asian admissions” on affirmative action policies.[47] The misunderstanding of affirmative action within the Asian American community may stem from several legitimate concerns, involving a combination of an unrecognized history of discrimination in the United States, the role of Asian Americans as a “racial bourgeoisie,”[48] the perpetuation of the model minority myth, negative action policies, and the stereotype of Asian Americans as a “reticent minority.”[49]

A.<