Now showing items 21-40 of 18371


      Kysar, Douglas (DePaul Law Review;, 2024)
      This article provides a historical context of climate change and the failure of political and international efforts to address greenhouse gas emissions. It discusses the rise of climate change litigation worldwide and explores conceptual issues related to a duty of climate care. The article highlights landmark cases that have resulted in court orders requiring governments to take stronger action on climate change. It also discusses lawsuits that aim to hold major fossil fuel companies accountable for their contribution to climate change. The challenges faced by plaintiffs in attributing emissions and establishing responsibility for climate change are also discussed. The article concludes by emphasizing the importance of legally enforceable duties of climate care in addressing the global climate crisis.
    • The Constitutionality of Medicare Drug-Price Negotiation under the Takings Clause

      Kapczynski, Amy; Brown, Nathan; Bhargava, Raj (Journal of Law, Medicine & Ethics, 2023)
      In recent months, pharmaceutical manufacturers have brought legal challenges to a provision of the 2022 Inflation Reduction Act (IRA) empowering the federal government to negotiate the prices Medicare pays for certain prescription medications. One key argument made in these filings is that price negotiation is a "taking" of property and violates the Takings Clause of the US Constitution. Through original case law and health policy analysis, we show that government price negotiation and even price regulation of goods and services, including patented goods, are constitutional under the Takings Clause. Finding that the IRA violates the Takings Clause would radically upend settled constitutional law and jeopardize the US's most important state and federal health care programs.
    • The Synergy of Legal and Medical Palliative Care: Challenges and Opportunities in Palliative MLP and the Yale Experience

      Gluck, Abbe R.; Iannantuoni, Rebecca; Rock, Emily B. (Journal of Law, Medicine & Ethics, 2023)
      Palliative care and medical-legal partnership are complementary disciplines dedicated to integrating care to treat the whole patient and intervening before a legal or medical issue is at a crisis point. In this paper, we discuss the founding and operations of the Yale Palliative Medical Legal Partnership, give examples of typical cases, explain special considerations in this area of law, and propose areas for further research.
    • Targeting Health-Related Social Risks in the Clinical Setting: New Policy Momentum and Practice Considerations

      Gluck, Abbe R.; Schultz, Blake N. (Journal of Law, Medicine & Ethics, 2023)
      The federal government is funding a sea change in health care by investing in interventions targeting social determinants of health, which are significant contributors to illness and health inequity. This funding power has encouraged states, professional and accreditation organizations, health care entities, and providers to focus heavily on social determinants. We examine how this shift in focus affects clinical practice in the fields of oncology and emergency medicine, and highlight potential areas of reform.
    • INTRODUCTION: Medical-Legal Partnerships: Equity, Evolution, and Evaluation

      Gluck, Abbe R.; Huer, Jennifer L. (Journal of Law, Medicine & Ethics, 2023)
      The COVID-19 pandemic laid bare systemic inequities shaped by social determinants of health (SDoH). Public health agencies, legislators, health systems, and community organizations took notice, and there is currently unprecedented interest in identifying and implementing programs to address SDoH. This special issue focuses on the role of medical-legal partnerships (MLPs) in addressing SDoH and racial and social inequities, as well as the need to support these efforts with evidence-based research, data, and meaningful partnerships and funding.
    • Sentence Modification in Connecticut: A Guide for Those Navigating the 53a-39 Process

      Walker, Jammie (Criminal Justice Advocacy Clinic, 2024)
      Title 53a, Chapter 952, Section 53a-39 of the Connecticut General Statutes governs sentence modifications across the state. The clinic’s guide details the 53a-39 sentence modification process and includes information on gathering and organizing the materials necessary to create the most compelling petition possible. It outlines the ways in which supporters can be most helpful to a person seeking a sentence modification and provides the information, templates, and official forms necessary to navigate the sentence modification process.
    • Constraining and Licensing Arbitrariness: The Stakes in Debates about Substantive-Procedural Due Process

      Resnik, Judith; Hershkoff, Helen (SMU Law Review, 2023)
      "Due process," unmodified by the words "substantive" or "procedural," has long marked the obligation of federal and state governments to protect individuals against arbitrary and unfettered uses of state power. Constitutional guarantees of rights to remedies and access to court date back centuries and, during the twentieth century, were reread to include all persons regardless of race, gender, and class. Moreover, the need for governments to legitimate their own decisions propelled interpretations of the Due Process Clauses of the Fifth and Fourteenth Amendments in conjunction with evolving interpretations of equal protection to ensure that courts provided even-handed treatment. Thus, on occasion, the Supreme Court has concluded that court fees had to be waived, subsets of litigants needed to be provided with lawyers, and failures to pay fines or child support could not result in detention unless judges inquired into the "ability to pay." Judges also assessed the "fairness" of procedures in courts and agencies and at times required revamping modes of decision making. Moreover, due process was the touchstone of the "fairness" of state courts' exercise of jurisdiction over absent litigants and application of their law to out-of-state parties. Thus, in various contexts, and at times in conjunction with other constitutional and common law provisions, due process had come to denote the relationship between government and individuals that entails respect for people expressed through procedures and decision making that are fundamentally "fair." Due process has thus been adaptive, pluralistic, and Janusfaced--looking to protect individuals in their encounters with government while shoring up the authority of governments to enforce their laws. The Supreme Court's 2022 decision in Dobbs v. Jackson Women's Health Organization, rejecting the federal constitutional right to an abortion, raises concerns about this account of due process. Our contribution to this Symposium is to sketch the elaboration of due-process principles that, built in earlier eras, came to apply to people who had been denied these protections. We analyze how the Supreme Court has, through the interaction of due process and equal protection, begun to address inadequate litigation resources and asymmetries between individuals and their adversaries in courts and agencies. We sketch the intersection of due-process norms with other constitutional provisions and the embeddedness of aspirations for non-arbitrary and fair treatment across diverse doctrinal categories including family, criminal, banking, and administrative law, as well as in other common and civil law systems. Yet, as Dobbs makes plain, commitments to due process and equality can be undermined. Through clarifying the stakes in debates about due process in a variety of its forms, we hope to encourage mobilization across the political spectrum to reject the potential for a frightening arbitrariness that members of the current Supreme Court seem poised to countenance. Renewed commitments are needed to insist on practices of bounded lawfulness, equality, and fairness that due process has encoded and should continue to promote.
    • Valuing ESG

      Listokin, Yair; Kovvali, Aneil (Brigham Young University Law Review, 2024)
      Corporate environmental, social, and governance (ESG) commitments promise to make capitalism better. Unfortunately, ESG has become a hotbed of hype and controversy. The core problem is that ESG mixes vague environmental and social goals with a profit maximization goal and does not provide a framework for resolving the conflicts that exist between them. The result is confusion that invites deception and cynicism. This Article proposes a mechanism for resolving conflicts between goals by translating them into the common language of money. Once non-pecuniary environmental or social goals are translated into dollar values, they can provide clear and actionable guidance for firms and investors, enabling ESG to fulfill its promise. To achieve this, corporations and institutional investors that claim to be ESG-friendly should publicly commit to specific valuations for ESG issues. For example, a company or mutual fund concerned with both climate change and profit might commit to valuing a metric ton of carbon emissions at $100 in its charter. The company would use that valuation as a metric in its assessment of projects, pursuing only those projects that would remain "profitable" after adjusting its forecasted cashflows by subtracting $100 for every ton of additional carbon emitted. A mutual fund would use the valuation when voting on climate-related governance issues or investment decisions. For example, the fund would back a shareholder resolution supporting lower corporate carbon emissions so long as the resolution would not reduce profits by more than $100 per ton of carbon saved. Similarly, the fund might pick stocks for investment based on potential profitability at a carbon price of $100. In effect, companies and investors would bid on their valuation of ESG impacts relative to ordinary profit maximization, sending clear and actionable signals on actual and desired behavior. By providing concrete standards and a sorting mechanism for making sense of competing goals, valuation would help realize the potential of ESG investing.
    • An Empirical Investigation of Arbitrator Race and Gender in U.S. Arbitration

      Chandrasekher, Andrea Cann (Yale Journal of Law and Feminism, 2024)
      For decades, the United States system of arbitration has been subject to nearly constant public criticism. Calling arbitration a rigged judicial system, consumer and employee rights groups have voiced opposition to the practice of “forced arbitration” whereby millions of Americans are contractually required to resolve disputes in arbitration rather than in litigation. On top of the concerns over the unfairness of forced arbitration itself, recent attention has been drawn to the lack of racial and gender diversity within the arbitrator profession. When women and racially marginalized plaintiffs are forced to arbitrate their employment discrimination or consumer-based claims in the arbitral forum, that they may have no meaningful access to arbitrators that look like them seems additionally problematic. Scholars in the field have argued back and forth about the root of the diversity problem. Is it a labor supply problem? In other words, are parties to arbitration open to hiring marginalized arbitrators but there are just not enough to choose from? Or is it a labor demand problem? In other words, when women and arbitrators of color are available, are they chosen at rates consistent with their white male counterparts? Or, are both supply and demand problems at work? Because much of the scholarly diversity conversation has been based on anecdotal information and survey data which don’t cover the full population of U.S. arbitrators, these basic questions are still unanswered. This paper contributes to the literature by using an originally-collected data set of arbitrator race, ethnicity and gender from the two largest arbitration firms in the U.S., Judicial Arbitration and Mediation Services (“JAMS”) and the American Arbitration Association (“AAA”). The data were collected using public data sources and cutting-edge machine learning techniques. This is the first-ever scholarly effort to empirically estimate the race and ethnicity of arbitrators for both the JAMS and AAA populations. The analysis presents estimates of the demographic profile of the supply of U.S. arbitrators and the demographic profile of the subset of arbitrators that are actually selected to arbitrate—with a special focus on the extent to which under-selection is happening. The study has four main findings. First, along the supply dimension, women and people of color are underrepresented amongst JAMS arbitrators, both relative to the U.S. population and relative to the population of American lawyers and judges. The extent of the underrepresentation for both groups is significant, though it is more severe for arbitrators of color than for female arbitrators. For AAA arbitrators, I find an even greater degree of underrepresentation for Black arbitrators. Second, along the demand dimension, I find different results for JAMS and AAA. For JAMS, I find that, conditional on being selected to arbitrate at least once in the sample period, Asian and Black arbitrators receive fewer cases than their proportional share, and female arbitrators receive slightly more cases than their proportional share. Moreover, arbitrators that were formerly judges receive more cases than their proportional share. For AAA, the selection analysis is hampered by limited data availability. However, the data that I do have suggest that diverse neutrals are selected for cases at a rate that is at or above their proportional share. Third, given the first two results, my data suggest that diversity issues exist both along the labor supply dimension and the labor demand dimension within U.S. arbitration. Fourth and finally, I find that future empirical diversity work in arbitration will be severely hindered unless more and better data are available to researchers. The study concludes by offering concrete and specific recommendations for how and why better data should be collected and made available to the public.
    • Sex/Gender Segregation: A Human Rights Violation, Not a Protection

      Tueller, Jessica (Yale Journal of Law and Feminism, 2024)
      This Article argues that human rights law should be interpreted to prohibit sex/gender segregation in all contexts, including education, employment, bathrooms, prisons, and sports, because of the gendered harms it produces. Prohibiting sex/gender segregation would constitute a departure from the current approach of international and regional human rights mechanisms, which has been to discourage sex/gender segregation in education and employment, require it in bathrooms and prisons, and devote little attention to it in other contexts, such as sports. This departure is needed because sex/gender segregation, no matter the context, perpetuates and reinforces gender stereotypes to the detriment of everyone, especially women and LGBTI persons. Since international law requires States to modify harmful gender stereotypes and eliminate wrongful gender stereotyping, States have an international obligation to eliminate sex/gender segregation regardless of the context in which it occurs. Common arguments in favor of sex/gender segregation, arising out of protection, choice, and culture, do not prevent human rights mechanisms from finding that international law prohibits sex/gender segregation, but these concerns should be taken into consideration when proceeding toward the elimination of sex/gender segregation. Implementation of this prohibition on sex/gender segregation will need to be gradual and context-specific.
    • Removing the Bias of Criminal Convictions from Family Law

      Stoever, Jane K. (Yale Journal of Law and Feminism, 2024)
      What happens when a legal system reduces a person to a record of arrests and prosecutions and prioritizes that information in family court? And what are the implications when this legal system is rooted in racism; disproportionately arrests, charges, and sentences people of color; and increasingly criminalizes domestic violence survivors? The Black Lives Matter movement brought attention to the need to expose racial injustice in areas that scholars often overlook. This Article is the first legal scholarship to examine judicial reliance on convictions in family law and domestic violence proceedings. Judges are currently provided with entire criminal histories, and statutes explicitly allow for or require family court judges to consider past criminal convictions and the probation and parole status of litigants seeking to secure custody or visitation of their children, form a family through adoption, or receive protection from domestic violence, as revealed by the research and fifty-state survey conducted for this Article. Given the stark racial disparities that pervade the criminal legal system, the convergence of heuristics and bias profoundly impacts litigants' lives, relationships, families, and communities. Judges' implicit biases coupled with structural hurdles, such as the high-volume dockets of criminal and family courts, further affect adjudication and pressure parties to accept plea offers or settlements. This Article also addresses survivors' advocates' potential objections to decreasing judicial reliance on criminal convictions and the imperative to avoid minimizing harms experienced by people of color. The Article concludes by offering a statutory framework to reform the role of criminal convictions in domestic violence and family court proceedings. The recommended statutory reforms are positioned alongside emerging expungement and vacatur laws. Without the remedy recommended in this Article, racial bias and the stigma of criminality will continue infecting family law cases, protection from domestic abuse, and caretaking relationships.
    • "Demons and Imps": Misinformation and Religious Pseudoscience in State Anti-Transgender Laws

      Alstott, Anne; Olgun, Melisa; Robinson, Henry; McNamara, Meredithe (Yale Journal of Law and Feminism, 2024)
      In a hearing before the Florida House of Representatives, Rep. Webster Barnaby addressed transgender witnesses as "demons and imps who come and parade before us and pretend that you are part of this world." Barnaby's remarkably candid statement is an outlier because it reveals that religion-rather than sound science-underlies the new wave of antitransgender laws that have been adopted by at least 20 states since 2021, with the vast majority enacted in 2023. In legislatures, courts, and agency hearings, proponents of anti-trans measures - in contrast to Barnaby - frame their arguments in scientific terms, contending that biology and medicine dictate exceptionalist treatment of trans gender people. In this Article, we make three contributions. First, we debunk these purported scientific claims, showing (with full citations to the scientific literature) that the core arguments for anti-trans laws rest on misinformation ( defined as false information that could, with due diligence, be determined to be false) and religious pseudoscience ( defined as statements that use scientific vocabulary but rest on religious tenets and defy sound science). We closely examine key state legal documents, including legislation, attorney general opinions, and administrative agency documents. Our analysis shows that the core and repeated "scientific" arguments in these documents defy sound science and rest, instead, on religious principles about the binary nature of sex and gender and the corruption of secular society. Second, we show that the "playbook" of misinformation and pseudoscience that has long fueled anti-LGBTQIA+ and anti-abortion laws is now being deployed by conservative religious organizations to promote and defend anti-trans laws. Not all religious organizations oppose transgender and queer rights, and not all opposition to transgender rights is based in religion. Still, close-knit conservative Catholic and evangelical Protestant groups have been on the front lines of efforts to promote and defend anti-trans laws. Leaked documents and emails show how medical and legal groups united by religion collaborated to create purported "scientific" documents and identify purported "experts" to push anti-trans measures. Third, we address the limitations of litigation in com batting anti-trans laws. Transgender plaintiffs challenging healthcare bans won decisive victories at the trial level, with federal and state courts in six jurisdictions forcefully rejecting the misinformation and purported "experts" put forward by the states. In the summer of 2023, however, subsequent decisions in federal appellate courts and state supreme courts overturned these decisions, with the higher courts giving credence to states' pseudoscientific claims and sharply narrowing constitutional protections for transgender youth and their families. These decisions explicitly connected transgender rights to abortion rights and adopted the Dobbs approach of limiting constitutional protections based on nineteenth-century social conditions. Litigation remains ongoing, and recent court decisions have addressed only preliminary injunctions based on limited factual records, so the plaintiffs may yet prevail in some cases. Even in the best case, however, litigation takes years-with harm accruing to transgender people in the meantime- and is vulnerable to gaming by states that are doubling down, enacting new anti-trans laws even as existing ones are struck down. We conclude that litigation is a welcome but limited remedy and that additional legal and policy measures are worth exploring. These include the enactment of express protections for LGBTQIA+ people by Congress and federal agencies. More speculatively, we consider procedural protections that could be adopted at the state level as well as possibilities for private action by researchers and nonprofit organizations. Although there are no easy answers, this Article outlines a range of possible approaches, some of which would make it more difficult for states to target queer people and others of which would tackle the broader problem of misinformation and religious pseudoscience enacted into law. We also explore potential challenges under the Establishment Clause, which could prompt courts, legislatures, executives, and popular movements to reject pretextual secular claims when-as here-the underlying motivation and asserted "facts" are religious in nature and amount to the state adoption of religious doctrine.
    • The History of History and Tradition: The Roots of Dobbs’s Method (and Originalism) in the Defense of Segregation Reva B. Siegel

      Siegel, Reva B. (The Yale Law Journal, 2023)
      In Dobbs v. Jackson Women's Health Organization, the Roberts Court claimed authority to overturn Roe v. Wade by comparing itself to the Warren Court in Brown v. Board of Education overturning Plessy v. Ferguson. This Essay challenges the claim that Dobbs is like Brown by recovering history the Court omitted in Dobbs-history that ties Dobbs's history-and-tradition method to the defense of segregation.
    • The 21st Century National Security Constitution

      Hongju Koh, Harold (THE GEORGE WASHINGTON LAW REVIEW, 2023)
      Even as the Biden Administration’s foreign policy unfolds, in 21st Century practice, foreign relations law seems to have largely become national security law. Virtually all foreign affairs issues have been reframed into national security terms. And because so much of foreign affairs law seems to have become justification for unilateral exercises of executive power, at times it seems almost like not law at all. This Keynote Address, based on a forthcoming book, describes the synergistic dysfunction among our national security institutions that has fostered these trends, explains why the major academic debates over foreign relations law have missed this most urgent issue, and suggests ways to slow the steady march toward executive unilateralism.

      Siegel, Reva B.; Blocher, Joseph (New York University law review, 2023)
      Since the Founding era, governments have banned guns in places where weapons threaten activities of public life. The Supreme Court reaffirmed this tradition of “sensitive places” regulation in District of Columbia v. Heller, and locational restrictions on weapons have become a central Second Amendment battleground in the aftermath of New York State Rifle & Pistol Association v. Bruen. Liberals have criticized Bruen for requiring public safety laws to mimic founding practice, while conservatives have criticized it for licensing regulatory change not within the original understanding. In this Essay we argue that Bruen’s analogical method looks to the past to guide change in weapons regulation, not to foreclose change. We illustrate the kinds of sensitive-place regulations Bruen authorizes with examples spanning several centuries, and close by demonstrating—contrary to recent court decisions— that a 1994 federal law prohibiting gun possession by persons subject to a domestic violence restraining order is constitutional under Bruen. Where some imagine the past as a land of all guns and no laws, this Article shows how weapons regulation of the past can guide public safety regulation of the present. Governments traditionally have protected activities against weapons threats in sites of governance and education: places where bonds of democratic community are formed and reproduced. We argue that Bruen’s historical-analogical method allows government to protect against weapons threats in new settings—including those of commerce and transportation—so long as these locational restrictions respect historical tradition both in terms of “why” and “how” they burden the right to keep and bear arms. At the heart of this Article is a simple claim: That Bruen’s analogical method enables public safety laws to evolve in step with the gun-related harms they address. Bruen does not require the asymmetrical and selective approach to constitutional change practiced by some in its name. Just as Bruen extends the right of self-defense to weaponry of the twenty-first century, it also recognizes democracy’s competence to protect against weapons threats of the twenty-first century. We apply these principles to demonstrate the constitutionality of the federal law prohibiting gun possession by people subject to a domestic violence restraining order, which the Supreme Court is currently considering in United States v. Rahimi.
    • Contractual Landmines

      Scott, Robert E.; Choi, Stephen J.; Gulati, Mitu (Yale Journal on Regulation, 2024)
      Conventional wisdom is that the standardized boilerplate terms used in large commercial markets survive unchanged because they are an optimal solution to the contracting problems facing parties in these markets. As Smith and Warner explained, “harmful heuristics, like harmful mutations, will die out.” But an examination of a sample of current sovereign bond contracts reveals numerous instances of harmful landmines—some are deliberate changes to standard language that increase a creditor’s nonpayment risk, others are blatant drafting errors, and yet others are inapt terms that have been carelessly imported from corporate transactions. Moreover, these landmines differ from each other in important respects: deliberate changes to the standard form reflect strategic lawyering on behalf of sovereign clients, while errors that only benefit subsequent activists reflect haste in adapting precedents to new transactions. Using both quantitative data and interviews with market participants, we find that the conventional view fails to recognize the unique and distorting role that lawyers play in the drafting of standard form contracts. Systematic asymmetries in the market for the lawyers who negotiate and draft these contracts explain why real-world contracts depart from the efficient contract paradigm.
    • Discretionary Investing by ‘Passive’ S&P 500 Funds

      Molk, Peter; Robertson, Adriana Z. (Yale Journal on Regulation, 2024)
      So-called passive index funds—investment funds that are designed to track a pre-specified underlying index—have become a dominant force in the investing landscape, collectively controlling over $12 trillion in assets. It is widely assumed that these funds are obligated to follow their underlying index, and that fund managers cannot, or do not, select portfolios that deviate from the index’s holdings. As a result, various critics have attacked these funds, raising concerns about their corporate governance incentives and their influence on market efficiency. We show this assumption is overly simplistic. To do so, we examine funds that track the most prominent index, the S&P 500. S&P 500 index funds do not typically commit to holding even a representative sample of the underlying index, nor do they commit to replicating the returns of that index. Managers have the legal flexibility to depart substantially from the underlying index’s holdings. We also show that these departures are commonplace: S&P 500 index funds routinely depart from the underlying index by meaningful amounts. While these departures are largest among smaller funds, they are also present among megafunds: even among the largest S&P 500 funds, holdings differed from the index by a total of between 1.7% and 7.5% in the fourth quarter of 2022. Across all S&P 500 funds, these deviations amounted to almost $61.5 billion in discretionary investment decisions. Moreover, at least within observed ranges, we find no meaningful relationship between these deviations and investment flows. In sum, S&P 500 index funds have substantial investment discretion, which they exercise to an extent not previously recognized. Our findings complicate the narrative around index funds and weaken many of the criticisms levied against them. At the same time, to the extent that investors—and particularly retail investors—fail to recognize this discretion, our findings suggest they may not be getting what they expect.
    • Credit Markets and the Visible Hand: The Discount Window and the Macroeconomy

      Conti-Brown, Peter; Skeel, David (Yale Journal on Regulation, 2024)
      In times of crisis such as the 2008 financial crisis and the 2020 COVID-19 pandemic central banks throughout the world engage in interventions with lasting effects on financial markets and the macroeconomy, for better and worse. The negative political consequences of these interventions—fears of politicizing central banking and inflationary concerns about dramatic interventions among them—can dampen the enthusiasm for such interventions early in the face of crisis. This dynamic creates a dilemma for the US central bank, the Federal Reserve, causing it to eschew interventions beyond monetary policy until the crisis has already crashed, at which point the Fed moves into every aspect of policy throughout the economy. This Article highlights the inadequacy of this dynamic. Sole reliance on monetary policy is insufficient in the face of growing crisis, while the Fed's vast emergency lending facilities face ever stiffer political, inflationary, and equity concerns. The Article advocates instead for a new approach to macroeconomic stability, not just through monetary policy or emergency interventions, but through judicious use of the sleeping giant of Fed policy, the bank-intermediated discount window. Focusing on the problematic credit market for debtors-in-possession in the midst of bankruptcy, the Article suggests a reformed system that safeguards the Fed, supports small and medium-sized enterprises, and stabilizes the macroeconomy without exposing the system to the pockets of instability that the Fed’s overreliance on dramatic intervention can do.
    • Mass Shootings and Mass Torts: New Directions in Gun Manufacturer Liability

      Hallas, Laura (Yale Journal on Regulation, 2024)
      Mass shootings are a particularly gutting form of American gun violence. The statistics are staggering to the point of numbing, with the issue’s intensity and timeliness enforced day after day, round after round. Gun manufacturers occupy a vital role in the chain of events ending with mass shooting headlines, yet they face little liability for their involvement because of a 2005 protective federal statute. This Note argues that there may be opportunity for change. Specifically, this Note offers evidence that once strong statutory protections may be weakening and presents strategies for creating previously unimaginable mass tort claims against gun manufacturers.
    • Grid Reliability in the Electric Era

      Macey, Joshua C.; Welton, Shelley; Wiseman, Hannah (Yale Journal on Regulation, 2024)
      The United States has delegated the responsibility of keeping the lights on to a self-regulatory organization called the North American Electric Reliability Corporation (NERC). Although NERC is a crucial example of industry-led governance—and regulates in an area that is central to our economy and basic human survival—this unusual institution has received scant attention from policymakers and scholars. Such attention is overdue. To decarbonize its economy, the United States must enter a new “electric era,” transitioning many sectors to run on electricity while also transforming the electricity system itself to run largely on clean but intermittent renewable resources. These new resources demand new approaches to electric grid reliability—approaches that NERC is failing to adequately embrace. This Article traces NERC’s history, situates NERC in ongoing debates about climate change and grid reliability, and assesses the viability of reliability self-regulation in the electric era. A self-regulatory model for maintaining U.S. electric-grid reliability sufficed in prior decades, when regulated monopolies managed nearly every segment of electricity production. But the criteria that NERC once used to justify self-regulation— ’ expertise, clear accountability metrics, and public-private alignment of interests—no longer hold. The climate crisis creates a need for expertise beyond NERC’s domain, while the introduction of competition in the electricity sector blurs lines of accountability for reliability failures. NERC’s structure also perpetuates an incumbency bias at odds with public goals for the energy transition. These shifting conditions have caused to fail to keep pace with the reliability challenges of the electric era. Worse still, outdated NERC standards help entrench fossil-fuel interests by justifying electricity-market rules poorly suited to accommodate renewable resources. We therefore suggest a suite of reforms that would increase direct government oversight and accountability in electricity-reliability regulation.