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)

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.



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

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




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.


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,
/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, (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),

 [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),

 [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),

 [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),

 [44]. Michael Greshko et al., A Running List of How President Trump Is Changing the Environmental Policy, Nat’l Geographic (Oct. 19, 2018),

 [45]. Devashree Saha & Mark Muro, Growth, Carbon, and Trump: State Progress and Drift on Economic Growth and Emissions ‘Decoupling’, Brookings (Dec. 8, 2016),

 [46]. Camila Domonoske, Mayors, Companies Vow to Act on Climate, Even as U.S. Leaves Paris Accord, Nat’l Pub. Radio (June 5, 2017),

 [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),

 [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),

 [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), (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),
/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),

 [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), (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., (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.


 [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),

 [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),

 [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),

 [171]. See Annalyn Censky, Coal ‘Ghost Towns’ Loom in West Virginia, CNN Money (May 26, 2011),

 [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),
_Energy_Policy_Can_Coal_Make_Comeback_April_2017.pdf; Matt Egan, What Killed Coal? Technology and Cheaper Alternatives, CNN (Aug. 21, 2018),
/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),

 [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), 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),; James Doubek, Automation Could Displace 800 Million Workers Worldwide by 2030, Study Says, Nat’l Pub. Radio (Nov. 30, 2017),

 [192]. See, e.g., Maggie Fox, Death Maps Show Where Despair Is Killing Americans, NBC (Mar. 13, 2018),; Alec MacGillis, The Original Underclass, Atlantic (Sept. 2016),

 [193]. Cf. Intergovernmental Panel on Climate Change, Summary for Policymakers of IPCC Special Report on Global Warming of 1.5C Approved by Governments (2018),

 [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),

 [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),; Robinson Meyer, What Americans Really Think About Climate Change, Atlantic (Apr. 22, 2017),

 [211]. Sebastien Malo & Sophie Hares, On the Boil: Five Climate Lawsuits to Watch in 2018, Reuters (Dec. 27, 2017),

 [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),, 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),

 [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), 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),

 [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., (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),

 [240]. Investing in Trade-Affected Workers, U.S. Dep’t of Labor (Aug. 31, 2018),; see also Benjamin Collins, Cong. Res. Serv.  Trade Adjustment Assistance for Workers and the TAA Reauthorization Act of 2015 (2018), (“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),

 [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),

 [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., (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),

 [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),

 [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),

 [282]. POWER Initiative, Appalachian Regional. Commission (last visited Feb. 5, 2019),; ARC Seeks Funds for Coal-Impacted Communities, Fayette Trib. (Feb. 5, 2018),

 [283]. Appalachian Reg’l. Comm’n, FY 2019 Performance Budget Justification 5 (2018),

 [284]. POWER Initiative, supra note 282; see also Appalachian Reg’l Comm’n, POWER Awards, October 2018,

 [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

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

 [291]. See Reihan Salam, Taxi-Driver Suicides Are a Warning, Atlantic (June 5, 2018),

 [292]. Phil McCausland, Sixth New York City Cab Driver Dies of Suicide After Struggling Financially, NBC News (June 16, 2018),; 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),

 [293]. Henry Goldman, Hyperdrive: NYC Is Set to Impose a Cap on Uber, Bloomberg (Aug. 6, 2018),

 [294]. See Just Transition: A Framework for Change, Climate Just. Alliance, (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),

 [315]. Parija Kavilanz, How This Kentucky Coal Town Is Trying to Bring its Economy Back to Life, CNN (Nov. 8, 2017),

 [316]. Slav Kornik, Alberta Puts Up $40M to Help Workers Transition During Coal-Power Phase-Out, Global News (Nov. 10, 2017),; see also A Just Transition: The Way Forward for Coal Communities, Energy Transition (Feb. 20, 2017), (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),

 [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)


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

Cynthia Chiu[*]



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


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




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.  History of Asian Americans and Affirmative Action

Affirmative action was first enacted in a federal program under President Lyndon B. Johnson’s Executive Order 11246 as an “affirmative step” in remedying a history of excluding minority workers, including Asian Americans, from employment in contracting firms that accepted federal funding.[50] In the educational context, affirmative action programs led to significant increases in enrollment for African Americans, Hispanic Americans, and Asian Americans.[51] However, following the decision in Bakke, the growth in enrollment for African Americans and Hispanic Americans stopped and retreats from affirmative action programs swept the country.[52]

The flexible, “holistic” review idealized by the Harvard Plan[53] led to admissions programs that considered race without using strict quotas; some Asian Americans believed that this created an admissions ceiling, as Asian American admissions rates reached a constant plateau.[54]

In the most recent affirmative action decision in Fisher II, a significant number of amicus briefs were filed in support of the University of Texas at Austin’s admissions policy and diversity goals, including some by several Asian American organizations.[55] However, the Asian American Legal Foundation and the Asian American Coalition for Education (claiming to represent 117 Asian American organizations) filed an amicus brief in support of Abigail Fisher, indicating an increasing divide within the Asian American community on the issue of affirmative action.[56]

B.  A History of Discrimination Against Asian Americans

There is a tendency for the historical discrimination against Asian Americans to go unrecognized due to a perpetuation of the model minority myth. The model minority myth paints Asian Americans as successful, particularly in an educational context, and as immigrants who have achieved the American dream. This conception of Asian Americans is problematic because it creates racial dissonance between Asian Americans and other minorities by implying that the barriers to success do not stem from systematic and structural oppression of some groups, but rather from individuals within a minority group failing to progress. The model minority myth is dangerous because it is used to underscore institutional racism while simultaneously de-emphasizing Asian American success.[57] In addition, Asian Americans are not a monolithic group, and many ethnicities within the Asian American community have different experiences and suffer inequality in income and corporate hierarchies in different ways.

For much of the nineteenth century, Asian Americans were subject to exclusionary immigration laws.[58] Naturalization rights were not granted to people of Asian ancestry until the mid-twentieth century[59]1943 for Chinese, 1946 for Asian Indians and Filipinos, and 1952 for all other Asians.[60] Even for those born in the United States, the Fourteenth Amendment did not allow citizenship for Asian Americans until 1898,[61] and this was challenged as recently as 1942.[62] Though not to the same extent as African Americans, Asian Americans were affected by segregation laws and anti-miscegenation laws as well.[63] In addition, the Alien Land Laws forbade Asians from owning land by prohibiting “aliens ineligible for citizenship” from owning property.[64] Asian Americans were also subjected to targeted discrimination by all levels of government, from San Francisco’s laundry licensing authority which allowed white laundries to stay open while closing Chinese laundries[65] to the federal governmentsanctioned internment of more than 120,000 people of Japanese descent during World War II.[66]

Even though the Supreme Court has, in some instances, struck down laws racially prejudicial against Asian Americans, societal prejudice remains a constant issue. In 1982, two white men in Detroit murdered Vincent Chin, a Chinese-American man, because they thought he was Japanese and were upset over American automakers losing business to the Japanese auto industry.[67] In 1992, the killer of Japanese student Yoshihiro Hattori was acquitted on the basis of “reasonable” self-defense arguments,[68] but the validity of the self-defense claims were based on the jury’s racial prejudice in determining what a reasonable threat was.[69] In some cities, such as Boston and Philadelphia, as recently as the 1990s, Asian Americans suffered the highest per capita hate crime rate of all racial minorities.[70] Today, Asian Americans continue to be the target of discrimination and hate crimes.[71] Racist actions and violence against Asian Americans have seen a disturbing increase recently.[72] These hate crimes tend to be perpetuated by stereotypes of Asian “foreignness”[73] and create fear within the Asian American community that stretches beyond the immediate victims.

C.  The Racial Bourgeoisie

University of Hawaii Law Professor Mari Matsuda writes of Asian Americans being a “racial bourgeoisie”:

If white, as it has been historically, is the top of the racial hierarchy in America, and black, historically, is the bottom, will yellow assume the place of the racial middle? The role of the racial middle is a critical one. It can reinforce white supremacy if the middle deludes itself into thinking it can be just like white if it tries hard enough. Conversely, the middle can dismantle white supremacy if it refuses to be the middle, if it refuses to buy into racial hierarchy, and if it refuses to abandon communities of black and brown people, choosing instead to forge alliances with them.[74]

As a racial bourgeoisie, Asian Americans could take on a significant role in the affirmative action discussion. The danger of a racial bourgeoisie is that it places Asian Americans as “middlem[e]n,” too different to be white but not different enough to be “true minorities.”[75] “Racial triangulation” of Asian Americans describes the view in American society that places Asians in a middle ground between whites and African Americans on a level of superiority but on the opposite end of the spectrum from both groups in a level of “foreignness.”[76] This conception of Asian Americans as “perpetual foreigners”[77] means that it is easy to discount them, which allows people to place blame on Asian Americans for acts attributable to actual foreigners.[78]

Part of what enables Asian Americans to be a racial bourgeoisie is the perpetuation of the model minority myth.[79] This conception of Asian Americans as a “model minority” not only unfairly criticizes other minorities, but it also is based on false premises that lead to the diminution of those Asian American individuals who achieve success in the face of great adversity.[80] The dangers of the model minority myth and the conception of Asian Americans as too different to be a true minority are that they create the assumption that Asian Americans cannot face discrimination. However, not only do Asian Americans continue to face racial violence,[81] but they also face negative action in admissions policies. While Asian Americans have benefited and continue to benefit from affirmative action,[82] the creation of ceilings on Asian Americans, particularly in university admissions policies, is a separate, unrelated issue that works to keep Asian Americans in a racial bourgeoisie.[83] No amount of success that is perceived to be enjoyed by Asian Americans through the stereotype of the model minority myth should be used to defend any use of negative action, and while Asian Americans may not merit affirmative action preferences, they should be subject to the same “neutral action” associated with white applicants. A misunderstanding of the distinction between negative action and affirmative action has led many in the Asian American community to use statistics that indicate Asian Americans require higher test scores to get into the same colleges as applicants of other races in order to oppose affirmative action.[84] While there may be legitimate concern over intentional caps against Asian Americans, it should not allow the Asian American community to be confused by the goals and outcomes of affirmative action. It should be the goal of the Asian American community to prevent our own personal experiences from being manipulated into promoting outcomes that ultimately seek to maintain a “white image.”[85]


In the 1920s, people asked: will Harvard still be Harvard with so many Jews? Today we ask: will Harvard still be Harvard with so many Asians? Yale’s student population is 58 percent white and 18 percent Asian. Would it be such a calamity if those numbers were reversed?[86]

SFFA filed an action against Harvard College, alleging the use of racially discriminatory policies in violation of Title VI of the Civil Rights Act of 1964.[87] To successfully challenge Harvard College’s admission policy under Title VI, SFFA must establish discriminatory intent, mirroring the constitutional standard, rather than the disparate impact standard.[88] Although the plaintiff originally argued six counts for relief, the suit ultimately relies on four main reasons that Harvard’s admission policy is racially discriminatory: (1) uses racial “quotas,” (2) engage[s] in racial balancing,” (3) fail[s] to use race merely as a plus factor’” in its undergraduate admissions process, and (4) fails to use race-neutral alternatives sufficient to achieve Harvard’s diversity goals.[89] SFFA asserts that it has “at least one member . . . who applied for and was denied admission to Harvard’s 2014 entering class.”[90] This unnamed applicant is described as being Asian American, having parents who are first-generation immigrants from China; graduating with a ranking of one out of 460 students in a high school that U.S. News and World Report places in the top 5 percent in the United States; obtaining a perfect score of 36 on the ACT; and being named an AP Scholar with Distinction, a National Scholar, and a National Merit Scholarship Finalist.[91] In addition to the applicant’s academic achievements, this applicant was

captain of the varsity tennis team, volunteered at a community tennis camp, volunteered for the high school’s student peer tutoring program, was a volunteer fundraiser for National Public Radio, and traveled to China as part of a program organized by the United States Consulate General and Chinese American Students Education and Exchange to assist students in learning English writing and presentation skills.[92]

The Harvard admissions process involves application evaluations by a first reader, a docket chair, and a final review by the full forty-person admissions committee.[93] When first readers review an application, they give numerical scores in the following categories: overall, academic, extracurricular, athletic, personal, teacher recommendations, school support recommendation, staff interview ratings, and alumni interview ratings.[94] The personal rating is based on the admissions officer’s “assessment of the applicant’s ‘humor, sensitivity, grit, leadership, integrity, helpfulness, courage, kindness and many other qualities.’”[95] The overall rating represents the officer’s view of the application as a whole, but instead of being determined “by a formula [or] . . . adding up the other ratings,” the first readers simply take “all the factors into account,” including race.[96] Once the full committee meets and makes its decisions, the dean and director confirm the final target of admitted students and consult a “one-pager” with race, gender, geographic region, and other statistics about the potential new class to determine whether some applicant need to “lopped” from the admitted list.[97]

In 2013, Harvard’s Office of Institutional Research (OIR) produced an internal report showing that the admission rate for Asian Americans was highest where the criteria for admission was solely based on academics and progressively decreased the more variables that were added.[98] In OIR’s second report, it found that the only category in which non-legacy, non-athlete white applicants performed significantly better than their similarly situated Asian American applicants was the personal rating, but the report failed to explain why.[99] This second report also found that non-legacy, non-athlete white applicants were admitted at higher rates than non-legacy, non-athlete Asia American applicants with the same academic scores and further concluded that Asian Americans were the only racial group with a negative association between being admitted and their race.[100] In 2015, Harvard established a Committee to Study the Importance of Student Body Diversity, which concluded in its report that student body diversity creates positive impacts and “is fundamental to the effective education of the men and women of Harvard College.”[101] In 2017, Harvard established the Smith Committee, which was dedicated to study whether race-neutral alternatives were workable for achieving the benefits concluded in the 2015 committee.[102] The Smith Committee concluded that there were no workable race-neutral alternatives that would allow Harvard to achieve the benefits of educational diversity without sacrificing other important educational objectives.[103]

An important step in understanding this case requires a closer look into SFFA and its goals. The President of SFFA, Edward Blum, has been instrumental in challenging affirmative action and voting rights laws in more than two dozen lawsuits.[104] He orchestrated Fisher I and II[105] as well as Shelby County v. Holder,[106] which successfully contested the Voting Rights Act of 1965. Blum challenges “racial policies he thinks are unfair” under the names of his several organizations, including SFFA, which have been criticized as being nothing more than Blum’s own “alter ego.”[107] Blum’s work from 2010 to 2015 received $2.9 million from several non-profits and the DonorsTrust, which distributes money from conservative and libertarian contributors, leading many to consider Blum a “tool of rich conservatives trying to extinguish efforts to help historically oppressed minorities overcome the long shadow of racism.”[108] Given the background of Blum, it seems likely that the overall goal of SFFA and Blum seems to be to eliminate race-conscious admissions policies altogether, not just negative action against Asian Americans.

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

Since the complaint was filed in November 2014, future applicants and current students at Harvard petitioned to intervene as defendants but were denied and subsequently given amicus status.[109] The presiding judge, Judge Allison D. Burroughs, determined that each side would have a ten to twelve month discovery process, beginning in May 2015 but denied SFFA’s explicit request for access to Harvard admissions data.[110] The case was temporarily stayed in anticipation of the Supreme Court’s ruling on Fisher II.[111] However, in September 2016, Judge Burroughs ordered that Harvard provide six cycles of admissions data as well as any information relating to any internal or external investigations into allegations of discrimination against Asian Americans in the undergraduate admissions process.[112]

Both sides have filed several motions to seal that have been granted by the Judge Burroughs, thus limiting the amount of evidence that is available to the public at this time.[113] Harvard filed a motion to dismiss for lack of subject matter jurisdiction in September 2016 that was denied in June 2017.[114] However, in June 2017, Judge Burroughs did grant Harvard’s motion for partial judgment on the pleadings of Count IV and VI, which respectively claimed violations based on Harvard’s failure to use race to merely fill the “last few spots” in an incoming class and “any use of race as a factor in admissions.”[115]

In September 2017, the Department of Justice (“DOJ”) formally notified Harvard that it was under investigation for its use of race in its admissions policies.[116] The DOJ’s Civil Rights Division sent a letter to Harvard on November 17, 2017, stating that Harvard was “not complying with its Title VI access requirements,” and if Harvard failed to provide the requested documents by December 1, 2018, the agency might file a lawsuit against the university.[117] Harvard challenged the agency’s authority to investigate and was willing to “provide the Justice Department with documents produced for the federal court case, ‘with redactions for relevance, privacy, and privilege/work product protection.’”[118] The core of the investigation was related to the same issues argued in the SFFA v. Harvard complaint. In 2015, the Obama administration dismissed the request to investigate without evaluating the merits due to the parallel lawsuit; however, in 2017, the Trump administration pursued the investigation, creating skepticism about the party divide and political motivations plaguing affirmative action policies.[119] In August 2018, the DOJ offered SFFA a public show of support through its statement of interest in court.[120] The DOJ did not make any conclusions of illegality, but it did urge the court to deny Harvard’s request for summary judgment.[121] From October to November 2018, Judge Burroughs heard oral arguments on the four remaining Counts, namely I, II, III, and V, from both SFFA and Harvard.[122] During the trial, there was a large reliance on student anecdotes and expert testimony, with SFFA using Peter S. Arcidiacono, an economics professor from Duke University,[123] and Richard D. Kahlenberg, a senior fellow at the Century Foundation,[124] and Harvard primarily relying on David E. Card, an economics professor from UC Berkeley.[125] In closing arguments, SFFA highlighted the expert testimony to demonstrate a “statistically significant Asian penalty,” while Harvard countered that SFFA had failed to prove any bias against Asian Americans but was instead a tool to take down “decades-old efforts toward racial diversity that enhances the educational experience.”[126] Although Judge Burroughs’s decision doesn’t have a definitive timeline, she is expected to release it in early 2019, and the decision is likely to be appealed by the losing side.[127] While a ruling at the district court in favor of SFFA would likely not eliminate the possibility of race-conscious admissions altogether, it could force Harvard, and other elite universities, to create policies that limit the consideration of race. It is quite possible the case could reach the Supreme Court of the United States, where the environment is drastically different from what it was when Fisher II was decided in 2016 given Justice Kennedy’s swing vote has been replaced by Justice Kavanaugh and the presidential administration’s view of affirmative action has shifted.[128]

B.  SFFA’s Arguments

SFFA makes several arguments describing why Harvard’s admissions policies are intentionally discriminatory on the basis of race and ethnicity in violation of Title VI. SFFA and Harvard filed a joint statement asking “that the requirement for a trial brief be stricken” based on their extensive summary judgment filings[129] and since SFFA’s motion for summary judgment was solely based on Counts I, II, III, and V of the complaint, which ultimately formed the basis of SFFA’s arguments at trial.[130] First, SFFA argues that Harvard’s holistic review process is historically discriminatory and is now being used to intentionally discriminate against Asian Americans.[131] Second, SFFA contends that Harvard is engaged in racial balancing based on evidence of stable admission percentages across races even as the application rates change over time.[132] Third, SFFA claims that Harvard’s pursuit of critical mass does not adhere to the Harvard Plan that was idealized in Bakke because it considers race as more than just a “plus factor.[133] SFFA argues that critical mass is an amorphous term that creates a delusion of pursuing diversity when it is really used “to achieve numerical goals indistinguishable from quotas” and results in race being used as more than just a plus factor.[134] Fourth, SFFA argues that Harvard’s race-conscious admissions policy is not narrowly tailored because there are race-neutral alternatives that could be used to achieve diversity based on policies used by other elite universities.[135]

1.  Count I: Harvard Intentionally Discriminates Against Asian Americans

In the first argument, SFFA contends that Harvard’s admissions policies were historically developed for “the specific purpose of discriminating against disfavored minority groups.”[136] SFFA points to the 1920s and 1930s when then Harvard President A. Lawrence Lowell placed a cap on Jewish enrollment through the use of an admissions system that was based on discretion rather than academic achievement.[137] Harvard began using legacy preferences and a subjective admissions system gauging “character and fitness and the promise of the greatest usefulness in the future as a result of a Harvard education” as strategies to reduce the number of Jewish students admitted.[138]

SFFA argues that Harvard’s current admissions plan uses the same subjective system to consider “race or ethnicity itself—not other factors that may be associated with race or ethnicity—[as] a distinguishing characteristic that warrants consideration in the admissions process” in order to create a quota of African American students.[139] SFFA goes on to claim that Harvard has a long history of intentional discrimination against Asian Americans, ranging from refusing to recognize Asian Americans as a minority by describing them as “over-represented” to holding Asian Americans to a higher standard of admissions.[140] In July 1988, the Office of Civil Rights of the U.S. Department of Education investigated the treatment of Asian American applicants at Harvard in comparison to white applicants and found that while Asian American applicants were accepted at a significantly lower rate than “similarly qualified” white applicants, the disparity was attributed to legacy preferences, not the byproduct of racial discrimination as claimed by SFFA.[141] SFFA continues by referencing the EspenshadeRadford study[142] on the role of race in elite undergraduate admissions, which found that “AsianAmerican students were dramatically less likely to be admitted than otherwise similar students who identified themselves as white or Caucasian.”[143] SFFA also cites to Ron Unz’s study[144] which found “sheer constancy of [Asian American enrollment] percentages, with almost every year from 1995-2011 showing an Asian enrollment within a single point of the 16.5 percent average, despite high fluctuations in the numbers of applications and the inevitable uncertainty surrounding which students will accept admission,” and this “exactly replicates the historical pattern . . . in which Jewish enrollment rose very rapidly, leading to the imposition of an informal quota system, after which the numbers fell substantially, and thereafter remained constant for decades.”[145] SFFA then cites to studies indicating that elite schools with race-neutral admissions policies have higher Asian American enrollment, with a table comparing Asian American enrollment at Harvard and the California Institute of Technology.[146] The complaint also refers to personal anecdotes of admission staff at Harvard and other elite universities, college counselors, and Asian American applicants, describing how “Asian Americans face difficulty because they cannot distinguish themselves within their community.”[147]

During the trial, each party relied on its own expert reports “to show the presence or absence of a negative effect of being Asian American on the likelihood of admission, highlight[ed] the purported flaws of its opponent’s statistical analysis, and claim[ed] that there is substantial—or zero—documentary and testimonial evidence of discriminatory intent.”[148] SFFA specifically relied on Arcidiacono’s testimony which concluded that Harvard gave lower personal ratings to Asian Americans at every level of academic achievement than applicants of all other racial groups and further showed that among applicants with the same overall rating, Asian Americans were the least likely to be admitted.[149] However, Harvard’s expert, Card, reviewed the same admissions data but found “no negative effect of being Asian American on the likelihood of admission to Harvard” because disparities were due to Asian American applications being “slightly less strong than those submitted by White applicants across a range of observable non-academic measures.”[150] Arcidiacono and Card reach different results from the same data due to divergent modeling choices, with Card criticizing Arcidiacono for excluding certain applicant information.[151] SFFA also uses the Harvard OIR reports to indicate that Harvard’s own internal research division found results consistent with Arcidiacono then took no further steps to investigate the potential bias, but Harvard claims that Card’s more comprehensive and reliable study contradicts the OIR report.[152] Lastly, SFFA uses personal anecdotes, specifically from an OIR employee and alumni interviewers, to demonstrate discriminatory intent, but Harvard asserts that statements made by non-decisionmakers or decisionmakers not involved in the process are insufficient to demonstrate discriminatory animus.[153]

2.  Count II: Harvard Engages in Racial Balancing

In the second argument, SFFA contends that Harvard’s current admissions policy engages in “racial balancing” in order to ensure a fixed quota of Asian American enrollees or proportional representation in its student body.[154] SFFA points to statistical data indicating that the racial demographics of Harvard’s admissions and enrollment have remained stable over approximately the last decade,[155] despite fluctuations in application rates.[156] SFFA contends the following:

[B]etween 2003 and 2012, the percentage of Asian Americans at Harvard wavered only slightly above and below approximately 17 percent. . . . [D]espite the fact that, by 2008, Asian Americans made up over 27 percent of Harvard’s applicant pool, and approximately 46 percent of applicants with academic credentials in the range from which Harvard admits the overwhelming majority of students.[157]

SFFA points to the “one-pagers” that provide statistics of the present representation of various racial groups as compared to the prior year as proof of Harvard’s quota for Asian Americans.[158] SFFA alleges that Harvard reconsiders applications from particular groups after receiving the one-pager in order to align the current class demographics with the prior year, which would effectively create a cap on Asian American enrollment regardless of the application rate or level of qualifications.[159] In the “lopping” process, the admissions committee allegedly takes into account the applicant’s race and whether it is currently underrepresented in the prospective class.[160] Harvard contends that the one-pagers break down applicants not only by race but also by gender, geography, intended concentration, legacy status, socioeconomic status, and other categories.[161] Harvard argues that the lopping process is an unbiased, necessary part of a process that involves an “overabundance of qualified applicants” for a limited availability of spots.[162] While SFFA points to a somewhat consistent admitted class breakdown for each racial group to show racial quotas, Harvard counters by claiming that there was a significant 11% increase in Asian American enrollment when it went from 18% (Class of 2014) to 20% (Class of 2017).[163]

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

In its third argument, SFFA claims that Harvard is not considering race for the purpose of achieving “critical mass” because it considers race as more than just a “plus factor.[164] Although the Supreme Court gives deference to a university in determining if diversity is part of their educational goals and deference in determining if critical mass has already been achieved, SFFA argues that Harvard’s admissions policy fails in its methods for attaining educational diversity because they are not narrowly tailored to a goal of reaching critical mass.[165] In addition, SFFA argues that since Harvard is not pursuing a goal of critical mass, the race-conscious admissions could be used in perpetuity even though there may be some point in time where the “use of racial preferences will no longer be necessary to further the interest” in diversity.[166] Harvard has an obligation to “continually reassess its need for race-conscious review,” but Harvard claims that the Smith Committee evaluated the current need for race-conscious admissions and a re-evaluation would be done again five years after the Smith Committee issued its report.[167]

SFFA argues that Harvard uses race as more than just a “plus factor.”[168] However, Harvard counters with testimony from Card stating that the variability in admissions is better explained by an applicant’s academic, athletic, extracurricular, and personal ratings, rather than race.[169] Similar to the arguments for Count I, the outcome of this issue is heavily dependent on which expert is given greater credibility and the reliability of the anecdotal testimony of admissions office employees.

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

In its last argument, SFFA offers race-neutral alternatives that Harvard could use to achieve student body diversity.[170] SFFA argues that Harvard should implement an admissions policy that creates diversity by placing emphasis on socioeconomic factors, including parental education and wealth, which are not specifically tied to race even though they may be strongly correlated.[171] In addition, SFFA proposes that Harvard use financial aid and scholarships for socioeconomically disadvantaged students to incentivize minority enrollment.[172] SFFA suggests that increasing recruitment into the applicant pool for “highly qualified, socioeconomically disadvantaged minorities” would lead to an increase in student body diversity and be sufficient to achieve Harvard’s educational goals.[173] SFFA contends that the need for race-conscious policies would not be necessary if other admissions policies that explicitly disadvantage minority applicants, such as legacy and wealthy donor preferences, were eliminated.[174] SFFA uses testimony from their expert Kahlenberg to support that Harvard can easily achieve diversity by race-neutral policies, such as increasing socioeconomic preferences; increasing financial aid;” and reducing legacy and donor preferences.[175] In response, Harvard asserts that the Smith Committee satisfied strict scrutiny when it determined that there were no available race-neutral alternatives.[176] Lastly, SFFA argues that Harvard has not considered race-neutral alternatives in good faith because the Smith Committee was developed after they became aware of the imminence of a lawsuit.[177]

D.  Criticisms of SFFA’s Arguments

1.  The Arguments in the Complaint Are Flawed

The complaint, as previously discussed, lays out four main arguments: (1) intentional discrimination; (2) racial balancing; (3) not using race as merely a plus factor; and (4) the existence of race-neutral alternatives. First, the argument surrounding the racial quota is flawed because SFFA uses evidence of a quota against Jewish Americans in the 1920s as an indication of a discriminatory intent currently in place against Asian Americans. The existence of a past discriminatory intent in the creation of the policies affecting Jewish applicants in the 1920s does not prevent Harvard from claiming to have benign intentions in the use of its policies now.[178] Since the discriminatory impact is not so severe as to allow a presumption of discriminatory intent as in Yick Wo, in which all permit applications by Chinese owners to set up a laundry business were denied,[179] SFFA would be required to show that constant admission rates of Asian Americans are due to a discriminatory intent to have an upper limit of Asian Americans at Harvard. Because SFFA’s proof is heavily reliant on the court finding its expert’s method of statistical analysis to be more compelling, it will be difficult to show that Arcidiacono’s conclusions are enough to prove discriminatory intent. Even if a racial quota is found to exist, it would only prove that Harvard itself is participating in an impermissible form of discrimination through the use of quotas against Asian Americans; that finding would not invalidate affirmative action in all higher education admissions or prevent the consideration of race in admissions policies elsewhere. SFFA’s use of statistics, such as those from the Espenshade–Radford study,[180] to support the existence of this racial quota falsely manipulates the data to conflate the negative action experienced by Asian Americans with affirmative action. In fact, an upper limit quota on Asian Americans is more likely to benefit white applicants than any minority applicants.[181] While the assertion of an upper limit quota against Asian Americans is highly possible given the constant admission rates of Asian Americans, it would not be due to affirmative action. Rather, it would be due to a combination of efforts to maintain a “white image” at elite universities, enflamed by the use of legacy preferences and the devaluation of Asian American diversity.

Second, SFFA’s argument that Harvard is conducting racial balancing in its admissions policy based on the same stable admission percentages used to indicate the racial quota in the first argument is flawed because diversity itself gains value from balance. Although critical mass is an immeasurable number, its definition inherently requires that it be attached to some ideal balance. While this balance should not solely be based on race, race does play a factor in contributing to the educational benefits of diversity, such that critical mass could definitely not be achieved if an elite university were made up entirely of one race. Any university that limits its number of accepted applicants requires a balance of diversity because not all qualified candidates can be accepted, so to claim there is impermissible racial balancing would be to argue that admissions policies instead need to be attached to something more quantitative like proportionate representation or application rates. The Supreme Court has not found this to be necessary given that Fisher II gave deference to universities in determining whether their admissions policies were narrowly tailored to achieving diversity. Unless there is evidence that Asian Americans are being “lopped” based on the one-pagers and a desire to create a racial demographic that is the same year after year, it will be difficult to show that Harvard is partaking in impermissible racial balancing. However, the balance universities achieve through their admissions policies should be subject to some scrutiny. While a balance may be inherently necessary, the conception of over-representation can lead to an unfair suppression of some groups in the consideration of this balance. The conception of over-representation is an issue because it leads to the idea that there can be too many of a certain group. While this may be true if the goal is to create a diverse class of individuals, it should be questioned when over-representation is only attached to minority groups.[182] Ultimately, there is distrust that SFFA would be welcoming to an outcome that eliminated racial balancing entirely if it meant that Harvard only accepted Asian Americans.[183]

Third, SFFA contends that Harvard does not use race as merely a plus factor because its consideration of race in admissions is not for the purpose of achieving critical mass. While Harvard’s creation of the Smith Committee seems correlated to the filing of the lawsuit, there is no indication that Harvard does not intend to follow its recommendation to re-evaluate in five years, which would be compliant with Fisher II’s mandate to continue reassessing critical mass.[184] Harvard’s admissions policy is to consider race as one factor among many, and almost all of the categories it creates ratings for do not allow the officers to consider race in their scores. While it is misguided for SFFA to challenge the consideration of race in Harvard’s policies as the exist on paper, there should be scrutiny placed on whether admissions officers allow unconscious bias and stereotypes about Asian Americans to influence the ratings of the other categories. When personal ratings of Asian American applicants are consistently lower than white applicants, it should lead to questions about whether admissions officers are more likely to undervalue humor, leadership, courage, and other traits that the personal ratings are based on when they are attached to an Asian American.

Fourth, SFFA suggests that Harvard could achieve diversity through race-neutral alternatives, such as socioeconomic status. Although socioeconomic disadvantage and race may overlap, they do not target identical problems, and thus, the consideration of race should not be completely replaced by solely considering socioeconomic status. They are both to be considered in the admissions process, among a multitude of other diversity factors. The Court in Fisher II allowed universities to use race-conscious admissions where there are no workable race-neutral alternatives that would sufficiently achieve their goals for educational diversity, so Harvard would not be required, under the current law, to adopt an inadequate socioeconomic status-based alternative. Admissions policies based on socioeconomic status may also be offered as a subtle way to assist race and genderbased affirmative action, but they should not be considered as a cure-all in college admissions.[185]

2.  Logical Fallacies

SFFA’s arguments are flawed due to their susceptibility to logical fallacies, such as the “causation fallacy”[186] and the “average-test-score-of-admitted-students”[187] fallacy. The causation fallacy is a term coined by California Supreme Court Justice Goodwin Liu to describe when “the fallacy erroneously conflates the magnitude of affirmative action’s instrumental benefit to minority applicants, which is large, with the magnitude of its instrumental cost to white applicants, which is small.”[188] For unsuccessful applicants, there is a reflex to blame affirmative action, but in a selection process as rigorous as the ones at elite universities, the likelihood of success for any candidate is low, regardless of affirmative action. Because white applicants greatly outnumber minority applicants and a large number of factors are considered, the average white applicant is not significantly more likely to be selected under a race-neutral process than a race-conscious one.[189] Although there are racial gaps in test scores, it is not evidence that affirmative action creates discriminatory acceptance rates, given that non-objective factors also play a role in admissions.[190] The causation fallacy leads to “a distortion of statistical truth, premised on an error in logic. . . . But that fact provides no logical basis to infer that white applicants would stand a much better chance of admission in the absence of affirmative action.”[191] Therefore, any presence of a racial quota or ceiling against Asian American admission cannot be due to affirmative action because the number of spots is too few to account for a constant admission rate despite increased application rates.[192]

The average-test-score-of-admitted-students fallacy is employed by SFFA in its argument that blames affirmative action for statistics showing Asian Americans need to score higher on standardized tests in order to be accepted. Because academic merits are only one factor of many in a holistic admissions process, “it is incorrect to infer Asian American applicants are required to meet a higher test standard even if the group average SAT score of all admitted Asian American students to a given university is higher than the SAT score of all African American admitted students.”[193] This is because SAT scores are not the only basis for admission to universities, and even though the group average SAT score of all admitted Asian American students to a university may be higher than all other groups, their group average non-academic scores may be collectively lower. While this explains why average test scores of Asian Americans may be higher at no fault of affirmative action, it also raises the question of whether Asian Americans’ non-academic qualities are being undervalued as a result of negative action and harmful stereotypes. However, it would be a mistake to want an admissions process that solely relies on academic criteria because scholastic ability, on its own, does not determine beneficial contribution to an elite university, and it has been shown that standardized tests are not racially neutral determinants of merit.[194] Both of these logical fallacies are employed in SFFA’s complaint and are used to appeal to the Asian American community as a way to manipulate blame for discriminatory ceilings against Asian Americans to create support for eliminating affirmative action.

IV.  Asian Americans and Affirmative Action in the Future

A.  Diversity Re-Evaluated

The use of an unnamed Asian American plaintiff and any possible evidence of an upper limit quota against Asian Americans should not bring into question whether diversity is a compelling interest. However, the conception of what this diversity should look like does need to change. There is a fear in the affirmative action discussion that any criticism of current race-conscious policies could be seen as an attack on affirmative action. That should not be the case; while affirmative action creates necessary benefits, it can also be improved.

The conception of diversity needs to evolve past even the idea of intra-racial diversity that was introduced in Fisher II. Diversity needs to be more than just having diversity within racial groups; the discussion needs to shift toward why diverse characteristics become more valuable when attributed to one race over another. When holistic admissions policies allow negative stereotypes about a group to bias their conception of diversity, the true educational benefits of a diverse student body cannot be achieved.

There is a concern that an admissions process that uses racial preferences as a means of enhancing educational diversity may stereotype applicants by race, expressing illegitimate assumptions about applicants’ viewpoints and experiences.[195] For Asian Americans, these stereotypes are harmful and can help explain any potential ceilings. Even when the stereotypes are deemed “positive,” such as the model minority myth, there can be a negative effect.[196] While these “positive” stereotypes may help Asian Americans break into the workforce, these same stereotypes may also prevent them from advancing upward through management.[197] This leads to data that may show “many Asian Americans are ‘underemployed’ relative to their educational background,”[198] creating an assumption within the Asian American community “that a fact of American life is that their efforts and accomplishments are discounted.”[199]

When the stereotypes are negative, there is an even greater impact. Negative stereotypes can lead to “admissions committees [concluding] unfairly that [Asian American] applicants were not well-balanced individuals.”[200] This stereotype that Asian Americans are one-dimensional fails to value the diversity associated with Asian Americans. This creates two main issues. First, while there is value in providing a characteristic that is unusual for your race because you have a unique experience, this does not account for why those same characteristics are valued differently across races, even where they create intraracial diversity[201] equally. For white or other minority applicants, the value of being a concert pianist or a chess player is seen as positive, while for an Asian American, it may be seen as negative because it does not distinguish the Asian American applicant from his or her perceived societal stereotype. While there is a large value to be placed on intraracial diversity and interracial diversity,[202] it is important to question whether there are any equivalent stereotypes that hold back white applicants.[203] Second, there is an additional failure to even recognize the intraracial diversity that already exists among Asian Americans. Asian Americans have diverse cultural backgrounds and experiences that are undervalued when they are viewed as a monolithic group.[204] There would be great intraracial diversity between two Asian American applicants, even if both have the same SAT scores and extracurricular activities, if one was the child of Vietnamese immigrants who came as refugees after the Vietnam War, and the other was the child of secondgeneration Punjabi Americans. To place less value on these distinct cultural experiences than would be placed on the diversity of “a farm boy from Idaho”[205] is illogical. When admissions officers reward candidates who “appear less Asian” or when professional admissions consultants recommend Asian Americans not talk about their immigrant backgrounds to avoid discrimination, it should raise the question of whether there is a devaluation of the Asian American identity in admissions policies.[206]

The diversity of Asian Americans is also devalued through the perception of Asian Americans as over-represented in education. The idea of over-representation itself creates the presumption that Asian Americans are not subjected to discrimination in admissions policies, which is not the case.[207] When schools are identified as being “too Asian,” the diversity of Asian Americans is reduced to an assumption that all Asian Americans are the same and are not valued as individuals who provide a unique benefit to a university. The comments crying “yellow peril” are not said in hushed tones or with backlash of racism, but are viewed as commonplace.[208] The claim of “too Asian” stems out of a fear of universities losing their “white image” due to competition with Asians.[209] With the combination of feeling over-represented while also being asked to “appear less Asian,” the effect has resulted in Asian Americans internalizing these beliefs and a lack of self-identity.[210] For elite universities looking to gain the educational benefits of diversity, creating admissions policies that value the broad range of Asian American experiences is necessary.

B.  Unity with Other Minorities

Asian Americans are traditionally viewed as a “reticent minority because in comparison to other ethnic groups, they tend to be less politically active and vocal.[211] There has been a recent increase in Asian American political activity, particularly in affirmative action,[212] which is necessary and important. However, it is crucial that Asian Americans not fall victim to a “race to the bottom” mentality by attacking other minority groups in a competition of who is worse off.[213] In considering affirmative action, Asian Americans should work with other minorities in discussing with universities “what the institutional and minority needs and priorities are.”[214] When Asian Americans criticize affirmative action, they must first ask themselves (1) even if you are individually innocent of any racial discrimination and face it yourself, do you not benefit from it? and (2) would you trade your Asian American experience to participate in the “piecemeal remedy of affirmative action programs?[215] While the unsuccessful candidate may feel that there are painful costs to affirmative action, Asian Americans should be protesting negative action based on the perpetuation of harmful stereotypes, rather than affirmative action, which continues to benefit Asian Americans. As a racial bourgeoisie, Asian Americans have not been included in affirmative action discussions, and they are caught between societal beliefs that they are receiving preferential treatment and personal feelings of experiencing discrimination.[216]


After Fisher II, diversity is the only justification accepted by the Supreme Court as a compelling interest for universities’ admissions policies to satisfy strict scrutiny, and although the Court claimed to require the university to show no race-neutral alternatives, it ultimately gave deference to the university’s good faith in determining whether the race-neutral alternatives would be plausible in achieving the educational benefits of diversity. The historical discrimination of Asian Americans and their existence as a group too different to be white and not different enough to be a “true minority” give context to why there is frustration and misunderstanding over affirmative action in the Asian American community. Although the negative repercussions of these circumstances and the stereotypes they come with are harmful to Asian Americans, they are not the result of affirmative action and would not be remedied by an elimination of affirmative action. SFFAs complaint and the arguments it made at trial against Harvard rest on misconceptions of the Asian American experience in the admissions processes. In its effort to get rid of race-conscious admissions programs, SFFA falls victim to logical fallacies and fails to address the true problem facing Asian Americans in admissions. While diversity continues to be a compelling interest, the conception of what types of diversity are valued needs to be re-evaluated to consider the stereotypes attributed to Asian Americans. For the Asian American community, their position as a racial bourgeoisie can have a significant impact in the affirmative action discussion if Asian Americans can target their efforts at attacking negative action while simultaneously supporting affirmative action.



[*] *.. Senior Editor, Southern California Law Review, Volume 92; J.D. Candidate, 2019, University of Southern California Gould School of Law; B.A., Economics and Legal Studies 2015, University of California, Berkeley. I greatly appreciate Professor Stephen Rich for his guidance and the editors of the Southern California Law Review for their excellent work. Thank you to my family—Mom, Dad, Jen, Andy, and Matt—and to my friends for their endless support and constant willingness to listen to me talk about this Note.

 [1]. Wesley Yang, Paper Tigers: What Happens to All the Asian-American Overachievers When the Test-Taking Ends?, N.Y. Mag. (May 8, 2011), (expressing the author’s perspective on the Asian American experience). This puts into context the complexity of the role that Asian Americans play not only in the affirmative action discussion, but also in American society as a whole. When the stereotype that attaches to Asian Americans is that they are all the same, what value can be placed on an individual Asian American’s conception of self?

 [2]. Some of the experiences my maternal grandparents faced in the Japanese American internment camps are also discussed in an article published by USC Gould School of Law. See 75 Years Later: The Impact of Executive Order 9066, USC Gould School of Law (Feb. 16, 2017),

 [3]. This is not to diminish the experience of those applicants who have to check “Other” because the ethnicity or culture they identify with is not listed, which is a separate but serious issue as well. This is to highlight the feeling of being told that your chances of admission would be greater if the university does not know you are Asian American, indicating Asian Americans get deducted points in comparison to even white applicants. It is not a comforting notion when many applicants of Asian-American descent have first or last names that reveal their identity regardless of what ethnicity they mark on their application.

  The description of my experience applying to colleges is not to insinuate that I should have been accepted to a specific university based upon my qualifications. The qualifications I describe are those of a typical applicant, whereas the suggestion of checking the “Other” box is a less universal experience. It is part of what helps me to understand the frustrations felt by many in the Asian-American community who are pushing back against Harvard’s admissions policies.

 [4]. See infra note 57 and accompanying text.

 [5]. The concept of a “racial bourgeoisie” was coined by Mari Matsuda. Mari J. Matsuda, We Will not be Used: Are Asian Americans the Racial Bourgeoisie?, in Where Is Your Body? And Other Essays on Race, Gender, and the Law 149, 149–50 (1996). It refers to an idea that Asian Americans fall into a racial middle ground that acts as a buffer between whites and African Americans, with Asian Americans stuck being too privileged to be minorities and too foreign to be honorary whites. Id.

 [6]. Matsuda, supra note 5, at 150.

 [7]. Complaint at 100–01, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 14-cv-14176 (D. Mass. Nov. 17, 2014), 2014 WL 6241935. This Note is limited in scope and does not discuss whether the Supreme Court is likely to hear this case or any likely outcome. This Note is limited to critiquing the arguments set out in Students for Fair Admissions’ (“SFFA’s”) complaint that were argued during the trial, which concluded in November 2018, trying to create background on why the Asian American community may be divided on this issue, and making a suggestion for the future of affirmative action as the discussion begins to include Asian Americans. See Chloe Foussianes, A Timeline of the Harvard Affirmative Action Lawsuit, Town & Country (Nov. 2, 2018),

 [8]. SFFA is a “newly-formed, nonprofit, membership organization whose members include highly qualified students recently denied admission to [Harvard and the University of North Carolina at Chapel Hill], highly qualified students who plan to apply to both schools, and parents.” Project on Fair Representation Announces Lawsuits Challenging Admissions Policies at Harvard Univ. and Univ. of North Carolina-Chapel Hill, Students for Fair Admissions,
/project-on-fair-representation-announces-lawsuits-challenging-admissions-policies-at-harvard-univ-and-univ-of-north-carolina-chapel-hill (last visited Jan. 21, 2019). The president of Students for Fair Admissions is Edward Blum, who is also the president of the Project on Fair Representation, which was founded in 2005 “to support litigation that challenges racial and ethnic classifications and preferences.” About Us, Project on Fair Representation, (last visited Jan. 21, 2019). The Project on Fair Representation has been involved in admissions lawsuits with other universities, including Fisher v. University of Texas at Austin. Brittany N. Ellis, The Harvard Admissions Lawsuit, Explained, Harv. Crimson (Nov. 7, 2016),

 [9]. Fisher v. Univ. of Tex. at Austin, 136 S. Ct. 2198, 2227 n.4 (2016) (Fisher II) (Alito, J., dissenting) (“The majority’s assertion that UT’s race-based policy does not discriminate against Asian-American students . . . defies the laws of mathematics. UT’s program is clearly designed to increase the number of African-American and Hispanic students by giving them an admissions boost vis-à-vis other applicants.”).

 [10]. I acknowledge that the term “Asian American” encompasses many different cultures and experiences, adding to some of the problems of Asian Americans being viewed as a monolithic group. However, the use of terms such as “Asian Americans,” “African Americans,” and “Hispanic Americans” is not intended to describe the experience of all individuals within such “groups,” but as a way to discuss the larger-scale issues surrounding affirmative action within the context of SFFA v. Harvard. The terms “Asian Americans,” “African Americans,” and “Hispanic Americans” were chosen based on how college admissions categorize ethnicity. See Admissions Statistics, Harvard C.,
/admissions/admissions-statistics. The discussion of stereotypes in this Note is used solely to acknowledge their negative impact and not to recognize them as truth, and while stereotypes in any context may be harmful, it may be necessary to discuss them in order to understand our own internal biases. 

 [11]. See Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History 212–17 (1999). In order to maintain dominance and power, wealthy white males recognized they would need to expand the civic identity to include poor white males. Id. By creating a dissonance between poor whites and minority groups, wealthy white males were able to maintain their power in the political system. Id.

 [12]. See id. at 197–242 (describing American ascriptivism). Smith offers a theory that the American political system developed with influence from an ascriptive tradition based on racist, sexist, and nativist assumptions that only allowed certain individuals to take part in the American civic identity. Id.

  SFFA’s complaint may be a reaction to the egalitarian civic reforms over the last few decades, showing that democratic principles have failed to create a shared sense of “peoplehood” and instead left people desiring for a return to some “superior culture” of the past. For Asian Americans to become included in those SFFA deem worthy enough to have earned their spots at Harvard, it comes at the cost of perpetuating stereotypes such as the model-minority myth, which are ultimately harmful to the Asian American community. SFFA may be willing to include Asian Americans in higher education, but does this inclusion also apply where it does not benefit the white community?

 [13]. See infra notes 73, 7677 and accompanying text.

 [14]. Throughout this Note, the terms “minority” and “white” were chosen to label groups in the admissions process as opposed to terms like “preferred” and “non-preferred” applicants or any other potential distinction. This is not to say that the admissions experience of all white applicants or all minority applicants is the same.

 [15]. See Matsuda, supra note 5, at 149–50.

 [16]. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995). Strict scrutiny is the most stringent form of judicial review courts use in determining the constitutionality of laws. To pass strict scrutiny, the law must be “narrowly tailored” to achieve a “compelling state interest.” Id. Racial classifications are subject to strict scrutiny, and even where there is non-invidious motive, such as the case for affirmative action, strict scrutiny still applies. See Korematsu v. United States, 323 U.S. 214, 216–24 (1944) (representing the first official use of strict scrutiny for racial classifications, though the Court’s finding that the law was narrowly tailored to a compelling state interest of national security has been criticized for being based on unfounded data provided by the state and was expressly overruled in Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018)); Adarand, 515 U.S. at 227.

 [17]. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 311–14 (1978). Justice Douglas’s dissenting opinion in Defunis v. Odegaard, 416 U.S. 312, 321–44 (1974), in which he argued that courts should give deference to educators in admissions policies, set the stage for Justice Powell’s opinion in Bakke. See Bakke, 438 U.S. at 311–14. The extent to which diversity would be able to apply as a compelling government interest to other areas outside of public education is uncertain. Grutter v. Bollinger, 539 U.S. 306, 329 (2003) (“We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.”).

 [18]. Bakke, 438 U.S. at 323.

A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer. The quality of the educational experience of all the students in Harvard College depends in part on these differences in the background and outlook that students bring with them.


 [19]. Id. at 310, 315–17. A quota system using proportional representation to remedy a historical deficit was considered unconstitutional because racial balancing is unequal on its face. Acting as a counter-effect to societal discrimination is a valid reason, but it is not narrowly tailored enough to justify the unfairness to an “innocent” applicant. Id. at 308–09. 

 [20]. Id. at 316–18. “As the Harvard plan described by Justice Powell recognized, there is of course ‘some relationship between numbers and achieving the benefits to be derived from a diverse student body, and between numbers and providing a reasonable environment for those students admitted.’” Grutter, 539 U.S. at 336 (citing Bakke, 438 U.S. at 323).

 [21]. Grutter, 539 U.S. at 325. (“[W]e endorse Justice Powell’s view that student body diversity is a compelling state interest that can justify the use of race in university admissions.”).

 [22]. Id. at 328. Educational benefits of diversity include cross-racial understanding helping to break down racial stereotypes, livelier classroom discussion, better preparation for a diverse workforce and marketplace, and the creation of a military officer corps better suited to properly provide national security. Id. at 330–33. In Grutter, much of the support for the University of Michigan Law School’s compelling interest claim was “bolstered by its amici, who point to the educational benefits that flow from student body diversity.” Id. at 330.

  The Court cites to Plyler v. Doe, 457 U.S. 202, 221 (1982) and Brown v. Board of Education, 347 U.S. 483, 493 (1954) in acknowledging the Court’s emphasis on education as fundamental in “sustaining our political and cultural heritage” as well as the “foundation of good citizenship.” Grutter, 539 U.S. at 331. However, the Court fails to address the anti-subordination values of Plyler and Brown and simply focuses on the instrumental values of allowing an educational institution to create a policy that promotes a goal of diversity.

 [23]. Grutter, 539 U.S. at 330–33.

 [24]. Id. at 340.

 [25]. Id. at 318.

 [26]. Id. at 328.

The Law School’s educational judgment that such diversity is essential to its educational mission is one to which we defer. . . . Our scrutiny of the interest asserted by the Law School is no less strict for taking into account complex educational judgments in an area that lies primarily within the expertise of the university. Our holding today is in keeping with our tradition of giving a degree of deference to a university’s academic decisions, within constitutionally prescribed limits.


  This deference only applies to the question of whether the specific institution finds diversity to be part of its own interest, not whether diversity itself is a compelling interest. This deference also does not apply to whether the means chosen to obtain the diversity are narrowly tailored.

 [27]. Id. at 337–38.

 [28]. Id. at 339 (“Narrow tailoring does not require exhaustion of every conceivable race-neutral alternative. Nor does it require a university to choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups.”).

 [29]. Id. The Supreme Court reasoned that the district court’s criticism of the law school for failing to consider race-neutral alternatives such as “using a lottery system” or de-emphasizing the importance of GPA and LSAT scores for all applicants was unfounded because “these alternatives would require a dramatic sacrifice of diversity, the academic quality of all admitted students, or both.” Id. at 339–40.

 [30]. Fisher v. Univ. of Tex. at Austin, 570 U.S. 297 (2013) (Fisher I); Fisher v. University of Tex. at Austin, 136 S. Ct. 2198 (2016) (Fisher II). In Fisher I, after being denied admission to the University of Texas at Austin, Abigail Fisher challenged the university’s admissions policy. Fisher I, 570 U.S. at 306–07. She did not qualify for the university’s Top Ten Percent Plan, which guaranteed admission to the top 10 percent of every in-state, high school graduating class. Id. at 304–05. For the remaining spots, the university’s admissions policy considered several factors, with race being one of them. Id. Fisher I centered around Abigail Fisher’s challenge of University of Texas’s use of race-conscious admissions as a violation of the Equal Protection Clause of the Fourteenth Amendment. Id. The Supreme Court in Fisher I held that the appellate court erred by not properly applying the strict scrutiny standard because narrow tailoring requires a showing that no race-neutral alternative was available and remanded the matter. Id. at 311–15. Fisher II then determined the constitutionality of the admissions policy based on the findings from the university on what race-neutral alternatives were plausible. Fisher II, 136 S. Ct. at 2198. 

 [31]. Fisher I, 570 U.S. at 312 (“Although ‘[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative,’ strict scrutiny does require a court to examine with care, and not defer to, a university’s ‘serious, good faith consideration of workable race-neutral alternatives.’” (citing Grutter, 539 U.S. at 339–40)).

 [32]. Id. (“The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.”).

 [33]. Fisher I, 570 U.S. at 314–15 (“[A] university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity . . . . and the case is remanded for further proceedings consistent with this opinion.”); Fisher II, 136 S. Ct. at 2208 (“Fisher I set forth these controlling principles, while taking no position on the constitutionality of the admissions program at issue in this case.”).

 [34]. Fisher II, 136 S. Ct. at 2211–12 (“[A] university bears a heavy burden in showing that it had not obtained the educational benefits of diversity before it turned to a race-conscious plan.”). As discussed in supra note 30, the University of Texas’s Top Ten Percent Plan (the “Plan”) guaranteed admission to the top 10 percent of every in-state, high school graduating class. Id. at 2205–06. The Plan was introduced by the University of Texas at Austin as a way to improve intra-racial diversity by increasing the amount of diversity within racial groups. Id. The Plan hoped to achieve this by accepting the top 10 percent from every Texas high school given the understanding that the racial and socioeconomic makeup of each school district may not already be diverse. Id.

 [35]. See Grutter, 539 U.S. at 318–20 (“[T]here is no number, percentage, or range of numbers or percentages that constitute critical mass. . . . [C]ritical mass means numbers such that underrepresented minority students do not feel isolated or like spokespersons for their race.” (citations omitted)).

  This is problematic because the “university’s goals cannot be elusory or amorphous—they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them,” while the conception of “critical mass” requires there be no quantitative measure in order to prevent it from appearing like a quota. Fisher II, 136 S. Ct. at 2211. This creates an issue for how to determine when “critical mass” for the purpose of achieving a diversity goal has been achieved.

 [36]. Fisher II, 136 S. Ct. at 2212 (“Though a college must continually reassess its need for race-conscious review, here that assessment appears to have been done with care, and a reasonable determination was made that the University had not yet attained its goals.”).

 [37]. Compare Fisher I, 570 U.S. at 312–15, with Fisher II, 136 S. Ct. at 2210–12.

 [38]. The conception of diversity established in Grutter has shifted slightly because Fisher II introduced the incorporation of intra-racial diversity, noting that “critical mass” may require something besides just a critical mass of each race, specifically, experiences within each race may be considered as well. See Fisher II, 136 S. Ct. at 2110–11. However, the test for diversity has remained the same as it was in Grutter, with specific emphasis on the Court’s continued efforts to give deference to the university’s good faith. Id. at 2211–14.

 [39]. Grutter, 539 U.S. at 325.

 [40]. Id. at 330–32; Stephen M. Rich, What Diversity Contributes To Equal Opportunity, 89 S. Cal. L. Rev. 1011, 1034–36 (2016) (“[I]t begs the question why the Court insisted on drawing such close connections between education and the value of diversity, and does not establish that diversity generally is sufficiently important to sustain the use of racial preferences when the success of a university’s educational mission is not at stake.”).

 [41]. Rich, supra note 40, at 1031–33 (“A more robust verification requirement, however, would have risked undermining the value of academic freedom that has provided the foundation for the Court’s diversity rationale.”); see also Grutter, 539 U.S. at 318–20.

 [42]. See Rich, supra note 40, at 1031–46. The goal of diversity may go beyond just a “critical mass” of racially and ethnically diverse individuals toward a goal of creating equal opportunity through the understanding of historical discrimination. If the true goal is to break down racial stereotypes, simply achieving “critical mass” of racial numbers in an attempt to integrate may not be enough. It may require going beyond the racial make-up of an applicant pool toward including diverse faculty, learning methods, and mentorship in order to truly achieve the educational benefits of diversity. Id. The concept of “critical mass” is unstable because the goals of diversity beyond integration may require a decrease in the quantity associated with critical mass. However, it is also argued that Grutter’s formulation of diversity may do more than just promote integration because it embodies anti-subordination values that look to the future in attempting to ensure there is no creation of a second-class status. Id.

 [43]. Id. at 1035–37 (“The current doctrine’s failure to distinguish between exploitative and egalitarian uses of diversity . . . is a direct consequence of this shift; the doctrine now focuses on whether a university’s pursuit of diversity advances the university’s educational mission, not on whether a university’s enrollments reflect an effort to provide equal opportunity.”). The exploitative use of diversity is to simultaneously profit from the educational benefits diversity can provide to a university and buy into the instrumental justification that diversity is only a compelling interest based on what it can contribute to the mission of a university. See id. at 1031–37. The egalitarian use of diversity is to pursue the belief that people deserve equal opportunities. Id. The current doctrine of diversity does not distinguish between these two objectives and places a larger focus on the instrumental value of how a university’s mission can be served by diversity. Id. at 1035–37. This creates an equal opportunity problem because unless diversity is viewed with an understanding of the unique challenges minorities face in education, minorities will not have a fair shot at the admitted student spots. Without equal opportunity to admission at elite universities, each admission spot becomes non-fungible and broken down into spots reserved for whites, African Americans, Asians, etc.

 [44]. See Lauren Camera, A Community Divided: Asian-Americans Are Divided Over an Affirmative Action Case that Argues Harvard Discriminates Against Them, U.S. News & World Rep. (Oct. 12, 2018, 6:00 AM),

 [45]. If the objective is equal outcomes, this may lead to a solely integration-based conception of affirmative action where comparably “equal outcomes” rely on proportionate representation. If this is the case, there may be “equal outcomes” for a racial group, such that the group is represented by a “meaningful number” of individuals, but this fails to take into consideration histories of discrimination and the impact this historical oppression may have on the ability for individuals within groups to achieve “success.” If the objective is equal opportunity, then similarly situated minority groups should receive the same treatment. In order to understand what would create equal opportunities, an anti-subordination principle that takes into account remedial justifications for affirmative action may be necessary. However, this anti-subordination principle may fail to bring about true equal opportunity if the historical discrimination of some groups is not acknowledged or is undervalued. See Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles Over Brown, 117 Harv. L. Rev. 1470, 1472–73, 1532–33 (2004).

  The recognition of a group’s history of discrimination should by no means be used to invalidate or undermine the patterns of oppression that plague other groups. Specifically, it should not be used to claim that Asian Americans have suffered equal oppression as other groups, particularly African Americans, when it is widely understood that Asian Americans do not face the same systematic racism and obstacles faced by African Americans.

 [46]. The ideal would be for affirmative action to be a discussion that includes minority voices to determine what diversity should look like in an admissions process, rather than an all-or-nothing debate. Giving voice to Asian Americans, who have largely been left out of the white–black discussion until recently, is necessary in order to create any solution that would further the goals affirmative action is based upon.

 [47]. Matsuda, supra note 5, at 153–54.

When university administrators have hidden quotas to keep down Asian admissions, this is because Asians are seen as destroying the predominantly white character of the university. Under this mentality, we cannot let in all those Asian over-achievers and maintain affirmative action for other minority groups. We cannot do both because that will mean either that our universities lose their predominantly white character or that we have to fund more and better universities. To either of those prospects, I say, why not? and I condemn the voices from my own community that are translating legitimate anger at ceilings on Asian admissions into unthinking opposition to affirmative-action floors needed to fight racism.


 [48]. Id. at 149–50.

 [49]. See Pat K. Chew, Asian Americans: The “Reticent” Minority and Their Paradoxes, 36 Wm. & Mary L. Rev. 1, 4 (1994).

Asian Americans are a “reticent” minority group. Compared to the other major ethnic groups in this country, for instance, Asian Americans are less politically organized and vocal. Their reticence, combined with other cultural factors, has made it difficult for all Americans—whites, Asian Americans and other minority groups—to understand who Asian Americans are.

Id. at 4–5 (footnotes omitted).

 [50]. Shaun R. Harper, Lori D. Patton & Ontario S. Wooden, Access and Equity for African American Students in Higher Education: A Critical Race Historical Analysis of Policy Efforts, 80 J. Higher Educ. 389, 397 (2009).

 [51]. Dana Takagi, The Retreat from Race: Asian-American Admissions and Racial Politics 21–22 (1992). From 1976 to 1982, enrollment increased nationwide by 1.3% for African Americans, 5% for whites, 32% for Hispanic Americans, and 62% for Asian Americans. Id. at 21.

 [52]. Id. at 77–78.

 [53]. For detailed discussion of the Harvard Plan, see supra note 20 and accompanying text.

 [54]. Id. at 51. Asian Americans began challenging admissions policies at elite universities nationwide, including Brown, Harvard, Princeton, Stanford, and UC Berkeley, but have yet to see any concrete judicial success. Id. at 23–51.

 [55]. E.g., Brief for Asian Am. Legal Def. & Educ. Fund et al. as Amici Curiae Supporting Respondents, Fisher II, 136 S. Ct. 2198 (2016) (No. 14-981); Brief for Asian Ams. Advancing Justice et al. as Amici Curiae Supporting Respondents, Fisher II, 136 S. Ct. 2198 (2016) (No. 14-981); Brief for 39 Undergraduate and Graduate Student Orgs. within the Univ. of Cal. as Amici Curiae Supporting Respondents, Fisher II, 136 S. Ct. 2198 (2016) (No. 14-981).

 [56]. Brief for the Asian Am. Legal Found. & the Asian Am. Coal. for Educ. et al. as Amici Curiae Supporting Petitioner at 23–28, Fisher II, 136 S. Ct. 2198 (2016) (No. 14–981) (discussing studies and anecdotal evidence to support the claim that Asian Americans are frequently discriminated against in the application of the SAT test score standard though none of these reported included references or data to University of Texas at Austin).  

 [57]. The model minority myth underscores institutional racism because it pins Asian Americans as successful in comparison to other minorities. It perpetuates an assumption that all minorities face the same experiences and barriers to success when it is clear that they do not. While some Asian Americans may have found success in America, it is in no way due to some inherent “Asian quality” that makes them more likely to succeed. To compare Asian Americans against other minorities is to discount the very real, lingering effects of slavery, Jim Crow laws, and mass incarceration that do not create obstacles for Asian Americans the same way they do for African Americans. Asian American successes are de-emphasized when those successes are attributed to simply being Asian and not from the individual’s hard work and sacrifice. When the stereotype is that Asian Americans cannot fail because of something inherent in “being Asian,” their successes appear less impressive. When one hears that the valedictorian of a high school is Asian American, and the response is “of course” as opposed to hearing that the valedictorian is white, then that Asian American valedictorian is harmed by some perception of the model minority myth. For further discussion of the model minority myth, see Kat Chow, ‘Model Minority’ Myth Again Used as a Racial Wedge Between Asians and Blacks, NPR: Code Switch (April 19, 2017, 8:32 AM),

 [58]. Asian Americans were the first group of immigrants to be explicitly excluded from the United States, with the passage of the Chinese Exclusion Act of 1882. Yuning Wu, Chinese Exclusion Act, Encyclopedia Britannica (Nov. 13. 2013), Then, Japanese immigration was specifically restricted in the Gentleman’s Agreement in 1907, and the 1924 Immigration Act barred immigrants from several other Asian countries. Univ. of Del., Comparison of Asian Populations During the Exclusion Years & Summary of Key Laws Regarding the Immigration and Citizenship of Asians in the United States (2006), [hereinafter Summary of Key Laws].

 [59]. See generally United States v. Thind, 261 U.S. 204 (1923) (holding Asian Indians were not eligible to apply for U.S. citizenship); Ozawa v. United States, 260 U.S. 178 (1922) (holding Japanese were not eligible to apply for U.S. citizenship).