Volume 2020, No. 1

PDF linkTable of Contents


PDF linkAffirmative Action as Transitional Justice

by Yuvraj Joshi

What role does affirmative action play in transitioning toward a more just society? The two literatures best equipped to answer this question— transitional justice and affirmative action—have neglected both the question and one another. Transitional justice scholars have focused on a limited set of measures (such as truth commissions and criminal prosecutions) and overlooked the role of affirmative action in facilitating transition. At the same time, affirmative action scholars have neglected the ways in which affirmative action may be part of a larger transitional justice project. Bringing these literatures into conversation for the first time, this Article shows how integrating affirmative action and transitional justice can advance our understanding of both practices. Affirmative action can bring attention to structural inequalities in transitional societies and help delineate the boundaries of transitional justice. In so doing, affirmative action can bridge a divide between the field of transitional justice and the phenomenon of societal transition that it seeks to understand and facilitate. Transitional justice, on the other hand, can elucidate how the period of transition informs affirmative action’s features and functions; it can also illuminate affirmative action’s strengths and shortcomings in bringing about a more just society. Affirmative action should, therefore, be added to the transitional justice “toolkit” and anchored in transitional justice concepts and debates.

PDF linkEminent Domain Law as Climate Policy

by Alexandra B. Klass

In 2019, several states adopted aggressive clean energy laws and other states are poised to do the same. These policies require electric utilities to secure all of the electricity they sell to customers from carbon-free energy resources by a specified date, and many also require the state to drastically reduce carbon emissions from the transportation sector, increase energy efficiency in buildings, and otherwise decarbonize their economies. In order to meet these mandates, states must transform the physical infrastructure used to create and transport energy. This will require building new power plants that run on carbon-free energy resources like wind, solar, hydropower, or nuclear energy; constructing the electric transmission lines and other infrastructure needed to deliver these energy resources to consumers; setting standards and mandates for new buildings, vehicles, and transportation infrastructure that will reduce carbon emissions; and providing direct funding, tax incentives, new permitting processes, and staff to support the public and private actors that will implement these changes. These needs are becoming well documented. What remains completely unexplored, however, is the potential for state property law reform—most notably eminent domain law—to limit the development of fossil fuels and promote the growth of alternative energy to support these new clean energy policies. This Article contends that states should consider eliminating eminent domain rights for fossil fuel projects and extending eminent domain rights for certain clean energy projects as part of their state climate policies. Moreover, each state’s approach to eminent domain reform may differ based on the current energy mix in the state as well as the potential for technological development. These policy conversations regarding the use of eminent domain for energy projects are critical to developing robust state clean energy laws. They also can provide a useful template for Congress if, in the future, it decides to enact federal climate policy.

PDF linkAdministrative Reasonableness: An Empirical Analysis

by Alyse Bertenthal

In a move that is sure to be celebrated by at least some students and practitioners of administrative law, there has emerged a growing consensus that review for reasonableness is the primary—or perhaps even the only—rule needed by courts reviewing agency decisions. Yet, remarkably, we continue to lack any systematic, comprehensive account of the reasonableness test in administrative law. What does it mean for an agency to decide or act “reasonably”? What is built into the judicial determination of reasonableness? To answer these and other questions, this Article presents results from the first empirical study that analyzes how reasonableness has been conceptualized, measured, and explained through judicial review of agency actions. This Article calls for more attention to how legal doctrines function in practice, embracing an approach that joins both empirical and doctrinal analysis. It then uses this analysis to develop a model of reasonableness review that reveals the factors and subfactors that drive such determinations, as well as the processes through which courts assemble these into a generalizable standard. The findings show that the methods developed by courts not only discipline and enhance internal agency processes, but also provide agencies with a structure against which to anticipate judicial decisions, thus demonstrating that courts can and do transform even a broad, ambiguous concept such as reasonableness into a legal construct that is, if not exactly determinate, at least determinable. By identifying and explicating the basic decision structures involved in reasonableness review, this Article also lays the foundation for future theorization of legal reasonableness both within and beyond administrative law.