UCLA Law Review Volume 55, Issue 6


Specialty License Plates: The First Amendment and the Intersection of Government Speech and Public Forum Doctrines

Specialty license plates are commonly seen displayed on cars across the United States. Certain states permit motorists to purchase a specialty license plate for an extra fee in order to allow the driver to affiliate with a particular cause while simultaneously raising money for nonprofit organizations associated with the plates. The introduction of specialty license plates bearing messages either in favor of or opposed to abortion has generated much free speech litigation across the country. The core issue in what is now a circuit split among federal courts of appeal is how to resolve the tension between the First Amendment doctrines of government speech and public forums, because the state legislatures who authorized creation of the plates, nonprofit organizations, and drivers all claim the speech as their own. This Comment argues for the adoption of a four-factor test which will assist courts in determining whether the speech at issue is either government or private speech. It further explores the underlying principles justifying the government speech doctrine, and suggests factors to be considered should courts determine that speech is neither purely government nor purely private.

Educating Expelled Students After No Child Left Behind: Mending an Incentive Structure That Discourages Alternative Education and Reinstatement

Expelled students have intense educational needs, yet few states protect their rights to alternative education during the period of expulsion or reinstatement to mainstream education following the period of expulsion. Instead of strengthening those rights, the No Child Left Behind Act (NCLB) creates an incentive structure that encourages the exclusion of expelled students from all access to educational opportunity. The lack of educational access for expelled students is a serious concern. Students of color are expelled at rates that far exceed their representation in the school population. As a result, denying expelled students access to education exacerbates the equitable harms caused by racial disparities in the application of school discipline and widens the achievement gaps caused by discrimination and inequality in the school system. Moreover, the widespread adoption of zero tolerance policies has created a situation in which American public schools expel tens of thousands of students each year, often for minor, first-time offenses. Depriving these students of access to education has a devastating impact on their lives, and ultimately leads to public expenditures that far exceed the cost of public education. This Comment examines legal strategies for counteracting NCLB’s exclusionary incentives and expanding expelled students’ access to education. Changes to the implementation of the NCLB accountability framework could change the incentive structure from the top, while litigation challenging exclusion at the school level could change the incentive structure from the bottom. In addition, strengthening the educational guarantees provided by the state constitutions could close the loopholes through which too many expelled students are deprived of educational opportunity.

An Imperative Redefinition of "Community": Incorporating Reentry Lawyers to Increase the Efficacy of Community Economic Development Initiatives

Life without economic subordination is recognized around the world as a fundamental human right. When individuals are economically impoverished, they are more likely to not only offend, but also repeatedly offend, because poverty compounded with the imposed civil disabilities of a criminal conviction further socially isolate and minimize their life options. This factual inference is not only illustrated through the experiences of my family members, but is also supported by empirical data and theoretical scholarship. Because of this correlation between poverty and criminal offenses, one reason to advocate for alleviating economic subordination is to decrease criminal activity. Practitioners of community economic development (CED) and reentry lawyers are two dynamic groups of individuals who are working within predominantly inner-city communities of color to increase economic and social opportunities. This Comment argues that CED practitioners and reentry lawyers should collaborate to achieve healthy communities and neighborhoods. The reciprocal benefits that result from this collaboration make it imperative that reentry lawyers are active participants to improve the efficacy of CED initiatives.

The Judicial Carbon Tax: Reconstructing Public Nuisance and Climate Change

This Article seeks to reconstruct the public nuisance climate change cases Connecticut v. AEP and California v. General Motors to show that, while hardly perfect, nuisance litigation could form a reasonable basis for climate change regulation, at least as much as some of the other imperfect alternatives so far proposed. This nuisance system has promise because, as outlined here, it essentially becomes a carbon tax—precisely the policy instrument that many economists say is the best form of regulation but is routinely dismissed as politically unfeasible. The difference is that it is judicially, not legislatively, imposed. I do not claim that the nuisance system is superior to legislation, but rather that it is a reasonable substitute in the absence of political action. More hopefully, I suggest it might provide a basis for getting the political process to respond to the climate crisis. Put another way, we might look at public nuisance litigation as a useful support for political progress. Common law judicial activism, then, does not undermine the democratic process but rather enhances it.

Climate Change Policy and Policy Change in China

Solving the climate change problem by limiting global greenhouse gas (GHG) emissions will necessitate action by the world’s two largest emitters, the United States and China. Neither has so far committed to quantitative emissions limits. Some argue that China cannot be engaged on the basis of its national interest in climate policy, on the ground that China’s national net benefits of limiting greenhouse gas emissions would be negative, as a result of significant GHG abatement costs and potential net gains to China from a warmer world. This premise has led some observers to advocate other approaches to engaging China, such as appeal to moral obligation. This Article argues that appeal to national net benefits is still the best approach to engage China. First, appealing to China’s asserted moral obligation to limit its GHG emissions may be ineffective or even counterproductive. Even if climate change is a moral issue for American leaders, framing the issue that way may not be persuasive to Chinese leaders. Second, the concern that China’s national net benefits of climate policy are negative is based on older forecasts of costs and benefits. More recent climate science, of which the Chinese leadership is aware, indicates higher damages to China from climate change and thus greater net benefits to China from climate policy. Third, the public health co-benefits of reducing other air pollutants along with GHGs may make GHG emissions limits look more attractive to China. Fourth, the distribution of climate impacts within China may be as important as the net aggregate: climate change may exacerbate political and social stresses within China, which the leadership may seek to avoid in order to maintain political stability. Fifth, the costs of abatement may decline as innovation in China accelerates. Sixth, as China becomes a great power in world politics, and as climate change affects China’s allies, leadership on climate policy may look more favorable to China’s elites. Seventh, the design of the international climate treaty regime itself can offer positive incentives to China. Taken together, these factors point to a potential and even ongoing shift in Chinese climate policy. They illustrate how the international law and politics of climate change depend on domestic politics and institutions. And they suggest that the United States, if it too takes effective action, can make the case for enlightened pragmatism as a basis to engage China in a cooperative global climate policy regime.

Measuring the Clean Development Mechanism's Performance and Potential

The Clean Development Mechanism (CDM) of the Kyoto Protocol is the first global attempt to address a global environmental public goods problem with a market-based mechanism. The CDM is a carbon credit market where sellers, located exclusively in developing countries, can generate and certify emissions reductions that can be sold to buyers located in developed countries. Since 2004 it has grown rapidly and is now a critical component of developed-country government and private-firm compliance strategies for the Kyoto Protocol. This Article presents an overview of the development and current shape of the market, then examines two important classes of emission reduction projects within the CDM and argues that they both point to the need for reform of the international climate regime in the post-Kyoto era, albeit in different ways. Potential options for reforming the CDM and an alternative mechanism for financing emissions reductions in developing countries are then presented and discussed.

Individual Carbon Emissions: The Low-Hanging Fruit

The individual and household sector generates roughly 30 to 40 percent of U.S. greenhouse gas emissions and is a potential source of prompt and large emissions reductions. Yet the assumption that only extensive government regulation will generate substantial reductions from the sector is a barrier to change, particularly in a political environment hostile to regulation. This Article demonstrates that prompt and large reductions can be achieved without relying predominantly on regulatory measures. The Article identifies seven “low-hanging fruit:” actions that have the potential to achieve large reductions at less than half the cost of the leading current federal legislation, require limited up-front government expenditures, generate net savings for the individual, and do not confront other barriers. The seven actions discussed in this Article not only meet these criteria, but also will generate roughly 150 million tons in emissions reductions and several billion dollars in net social savings. The Article concludes that the actions identified here are only a beginning, and it identifies changes that will be necessary by policymakers and academicians if these and other low-hanging fruit are to be picked.

The World vs. the United States and China? The Complex Climate Change Incentives of the Leading Greenhouse Gas Emitters

It is generally agreed that the world would be better off with an international agreement to control greenhouse gas emissions. But it is not entirely clear that the leading emitters—the United States and China—would be better off with the agreement that would be in the world’s interest. The first problem is that as the largest emitters, the United States and China would probably have to bear a disproportionate cost of any significant emissions reduction effort. The second problem is that on prominent projections, the United States and China are unlikely to be the most serious losers from climate change. According to some analyses, the two nations are thus anticipated to bear disproportionately high costs from emissions controls and to gain disproportionately little from such controls. There are two ways to eliminate the resulting obstacle to an international agreement. The first is through altering the perceived cost-benefit analysis for both countries. The second is through an understanding that both nations, and the United States in particular, are under a moral obligation not to inflict serious harm on the highly vulnerable citizens of Africa, India, and elsewhere. Existing proposals for unilateral action on the part of the United States seem to stem from an unruly mixture of confusion, hope, and a sense of moral obligation.

Like a Nation State

Using California’s self-consciously internationalist approach to climate change regulation as a primary example, this Article examines constitutional limitations on state foreign affairs activities. In particular, by focusing on the prospect of California’s establishment of a greenhouse gas (GHG) emissions trading system and its eventual linkage with comparable systems in Europe and elsewhere, this Article demonstrates that certain constitutional objections to extrajurisdictional linkage of state GHG emissions trading systems and the response that these objections necessitate may be more complicated than previously appreciated. First, in order to successfully combat the argument that state-level climate change activities interfere with a federal executive position of withholding binding domestic GHG emissions reductions in advance of a multilateral agreement including key developing nations, states must demonstrate that the executive branch is not acting with congressional support and has, furthermore, declared its position too informally to constitute an exercise of any of the president’s independent constitutional powers. Second, state efforts to link GHG emissions trading systems with those of other nations may face serious challenges under the foreign affairs and Foreign Commerce Clause doctrines. Finally, states’ efforts to integrate with other trading schemes or to otherwise protect the integrity of their own trading schemes must be carefully constructed lest they invite challenge as being discriminatory or overreaching, in light of more conventional dormant Commerce Clause constraints on state regulation.

Climate Change and the Transformation of Risk: Insurance Matters

Climate change will increase risks significantly in many areas of society, and also will make many risks more uncertain and harder to measure. If our society is to survive climate change without significant human costs, we must develop robust institutions and practices to manage these risks. The insurance industry is our society’s primary financial risk manager and needs to play a leading role in developing these institutions and practices. But climate change poses an unprece- dented challenge to the insurance industry, because factors such as increasing uncertainty and the potential for highly correlated losses will make it difficult to insure against climate change-related risks and will strain capital markets’ ability to compensate those who are affected. If the industry rises to the challenge, it stands to profit while facilitating our most successful responses to climate change- related threats around the world. If not, insurers will suffer along with everyone else. A report issued recently by a major financial services firm identified climate change as the number one “strategic threat” facing the insurance industry, noting that it is a “long-term issue with broad-reaching implications that will significantly affect the industry.” To date, however, there has been relatively little effort to examine what supply- and demand-side barriers may be impeding development of insurance products that address climate change risk effectively. In this context, this Article examines the incentives that insurance products provide to influence the climate change-mitigating and adaptive capacity-building behavior of policyholders and other actors. It also looks at the reasons that insurers might or might not choose to provide those products and the reasons individuals and businesses may or may not choose to purchase those products. Finally, it examines the extent to which the insurance industry’s products are likely to play a significant and effective role in affecting private actors’ responses to climate change. The Article concludes that although it is not yet clear whether and how the insurance industry will be able to address climate change in a way that systematically creates solutions, the industry’s future—and perhaps the rest of ours as well—may rest on the success or failure of its adaptation to a world with a changing climate.

The Place-Based Theory of Standing

Standing doctrine is well-known to be a quagmire, plagued by inconsistent results and judicial dissension. Worse, leading scholars have cast doubt on its historical pedigree and conceptual underpinnings. Yet, there seems to be little prospect for a radical change in direction. This Article proposes a more modest doctrinal shift. The proposed approach is much simpler than the current test, but preserves the core intuition that plaintiffs must have some special connection to the subject matter of the dispute, as opposed to a generalized interest in law enforcement or public policy. The proposal addresses standing in environmental cases, which form a major part of the U.S. Supreme Court’s standing jurisprudence. The place-based standard is easily stated. Under this approach, a plaintiff has standing to contest environmental violations involving a specific geographic area, provided that the plaintiff has an appropriate personal connection to the area. The place-based approach would clarify and simplify existing doctrine, but without working a revolution. The Court’s two most recent environmental standing decisions are not only consistent with this test, but quite readily resolved. People who live near and use a stream are obviously appropriate individuals to litigate issues relating to the pollution of the stream, as the Court correctly concluded in the Laidlaw case. And no one has a better claim than a state government to litigate harms to that state’s environment—and even more so, potential erosion of that state’s territory. Thus, Massachusetts v. EPA is also an easy case under the place-based approach.

Implementing Greenhouse Gas Emissions Caps: A Case Study of the Los Angeles Department of Water and Power

Our almost forty-year experience with landmark federal environmental statutes, demonstrates unequivocally that implementing grand and noble environmental goals is an arduous and difficult experience. California is now embarking on a similar project: implementing the country’s most ambitious greenhouse gas emissions limitations, including rolling back the state’s emissions to 1990 levels by 2020. The state’s leadership on climate change legislation deserves significant praise. But the hard work in actually achieving emissions limits is just beginning. In this Essay, Professor Ann Carlson provides a case study of the country’s largest municipally owned utility—the Los Angeles Department of Water and Power (DWP)—and the challenges it will face in holding its emissions to 1990 levels by 2020. The case study is particularly useful to anticipate challenges utilities across the country will face if the federal government also mandates greenhouse gas emissions reductions. The DWP’s energy mix, with its heavy reliance on coal, looks quite similar to the energy mix of the country as a whole (and quite different from the rest of California’s electricity market). The challenges are daunting. They include shifting rapidly to renewable energy sources in the face of labor pressures to have DWP own its own sources; building miles of transmission lines to bring the renewable energy to DWP’s customer base; repowering natural gas facilities while attempting to comply with stringent Clean Water Act requirements; and eliminating the utility’s reliance on coal over the next two decades. These efforts will raise complex environmental and other value clashes, pitting those concerned about jobs, water pollution, species protection, and aesthetic harms against a utility admirably committed to cutting its greenhouse gas emissions significantly. Whether and how we resolve these clashes remains an open and contested question.