Volume 43, Number 1


PRIVITY’S SHADOW: EXCULPATORY TERMS IN EXTENDED FORMS OF PRIVATE ORDERING

Mark P. Gergen

This Article addresses a set of important and unsettled legal questions on which there has been scant theoretical scholarship. A few examples suggest the nature, importance, and difficulty of the questions:

  • Tenant suffers substantial lost income as a result of a careless error by Contractor in renovating a commercial building. A term in Tenant’s contract with Owner, who hired Contractor, absolves Owner from liability for the loss. Does the term also absolve Con- tractor from liability to Tenant? What if the exculpatory term is in the contract between Owner and Contractor?
  • Buyer overpays for goods as a result of Appraiser’s careless error. Seller hired Appraiser. A term in the contract between Buyer and Seller makes the appraisal “final and binding.” Does this term bar a claim by Buyer against Appraiser?
  • Creditor detrimentally relies on Accountant’s report in extend- ing credit to Company. Company hired Accountant. A term in Accountant’s contract with Company limits the scope of Accountant’s duty to investigate accuracy of Company’s financial information. Does this term also define the scope of Accountant’s duty to Creditor?
  • A building has a defective foundation as a result of Builder’s mistake. Years later, after Owner sells the building to Purchaser, the defect becomes manifest. The contract between Owner and Builder absolves Builder from liability for the defect. Does this term bar a claim by Purchaser against Builder?
  • Alarm Service has a term in its agreement with Building Owner absolving Alarm Service from liability for consequential damages. The alarm fails in a fire. As a result of the failure of the alarm, Tenant is injured. Does the term limit the liability of Alarm Service to Tenant?

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PRESIDENTIAL CONTROL ACROSS POLICYMAKING TOOLS

Catherine Y. Kim

Over the past quarter century, administrative law scholars have observed the President’s growing control over agency policymaking and the separation-of-powers concerns implicated by such unilateral exercises of power. The paradigmatic form of agency policymaking—notice-and- comment rulemaking—mitigates these concerns by ensuring considerable oversight by the courts, Congress, and the public at large. Agencies, however, typically have at their disposal a variety of policymaking tools with which to implement White House goals, including the issuance of guidance documents and the strategic exercise of enforcement discretion. While commentators have drawn attention to the risk that agencies will circumvent the extensive checks associated with rulemaking by issuing a guidance document instead, this Article argues that the potential for an agency to forego both rulemaking and guidance documents in favor of the strategic exercise of enforcement discretion poses a greater threat of unchecked unilateral power. It presents a case study of the use of these different policymaking tools in the Department of Education’s Office for Civil Rights (OCR), finding that while agencies are able to weaken external checks on presidential policy preferences by employing guidance documents instead of rulemaking, they can virtually eliminate such checks by implementing White House goals through the strategic exercise of enforcement discretion. This Article closes by evaluating potential reforms to temper politically motivated exercises of enforcement discretion, focusing not only on external mechanisms of over- sight, but also on the role of the civil service bureaucracy within the agency itself.

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MAXIMIZING UTILITY IN ELECTRIC UTILITY REGULATION

Jonas J. Monast

The electric power sector is undergoing a period of profound change, reacting to economic, technological, and regulatory variables that have emerged quickly and largely without warning. In many states, the public utility commission (PUC) will play a key role in deter- mining how electric utilities respond to these rapidly changing circumstances, the outcome of which will affect electricity rates, investor returns, public health, and local and state economies for decades to come. The general mandate underlying many utility commission proceedings—seeking the least cost option for maintaining a reliable electricity sector— provides the PUC with considerable discretion to choose among sources of information, potential outcomes, and risk assessments.

The least cost framework is generally treated as an objective standard, but a close examination of PUC decisions demonstrates the inherent subjectivity and the value choices com- missioners face when determining which electric utility decisions are in the public’s best interest. From a descriptive perspective, the effort to maximize societal benefits and minimize societal costs associated with electricity generation and delivery is, at its core, a utilitarian exercise. Like the concept of welfare maximization that lies at the heart of the classic utilitarian framework, the cost minimization goal seeks to produce the greatest good for the greatest number through an affordable and reliable electricity sector. From the normative perspective, accepting that PUC decision-making is a utilitarian exercise invites a critical assessment of whether PUCs are succeeding in implementing the least cost mandate. This Article provides an overview of PUC decision-making and the least cost framework, then examines the inherent discretion in the least cost mandate by analyzing four recent PUC decisions where commissioners reach opposing decisions based on the same set of facts. The Article concludes by proposing mechanisms for capturing broader societal benefits through an expanded application of the PUCs’ existing discretion.

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TAKING TURNS

Ronen Perry, Tal Z. Zarsky

Two siblings jointly inherit their late father’s rocking chair. The chair has principally sentimental and no real economic value; it can- not be physically divided between them, and selling it to distribute the proceeds will compensate neither for the sentimental loss.  What, then, should become of the disputed property? In a self-confessed “strange” decision in the McDowell case, the Surrogate’s Court of New York ordered that the two siblings take possession of the chair alternately for six-month periods; and, when one passed away, the other would obtain exclusive possession. An allocation method based on alternating enjoyment (or suffering) is commonly known as “rotation,” or, more colloquially, “taking turns.” Yet, despite its manifestation in different legal contexts and its considerable potential, rotation has been almost neglected by legal theorists. This Article makes the first attempt to delineate and exemplify the proper boundaries of this method’s utilization by and under the law, based on a comprehensive and systematic integration of fairness- and efficiency-oriented concerns. In providing a full-fledged theoretical framework, we also aim to alert law and policy makers to the availability of rotation-based solutions to allocative challenges, and to advocate a cautious expansion of their application by and under the law.

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INTERPRETING FORCE AUTHORIZATION

Scott M. Sullivan

This Article presents a theory of authorizations for the use of military force (AUMFs) that reconciles separation of power failures in the current interpretive model. Existing doc- trine applies the same text-driven models of statutory interpretation to AUMFs that are utilized with all other legal instruments. However, the conditions at birth, objectives, and expected impacts underlying military force authorizations differ dramatically from typical legislation. AUMFs are focused but temporary corrective interventions intended to change the underlying facts that prompted their passage. This Article examines historical practice and utilizes institutionalist principles to develop a theory of AUMF decay that eschews text in favor of time. Consistent with armed conflict, functional needs, and constitutional norms, AUMF decay offers a model that harnesses the institutional advantages and interplay embedded in separation of powers regime. Properly, AUMF interpretation recognizes their peculiar role and lifespan as one that explodes into the legal landscape with supernova intensity and potency that, regardless of text, is just as surely followed by an accelerating decay that ultimately diminishes to complete inoperability.

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THE WELLNESS APPROACH: WEEDING OUT UNFAIR LABOR PRACTICES IN THE CANNABIS INDUSTRY

Taylor G. Sachs

California was at the forefront of medicinal cannabis legalization in 1996. That was twenty years ago. Today, twenty-three states, Puerto Rico, Guam, and the District of Columbia have all passed laws legalizing the use of cannabis for medical purposes. Three of these states plus the District of Columbia have also legalized the recreational use of cannabis. However, despite the aggregate of state protections and changing public opinion, both medical and recreational use of cannabis remains illegal under federal law. This under- lying conflict between state and federal law creates significant uncertainty for cannabis businesses and their employees.

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IS PERSONHOOD THE ANSWER TO RESOLVE FROZEN PRE-EMBRYO DISPUTES?

Erica Steinmiller-Perdomo

Sofia Vergara and her ex-fiancé, Nick Loeb, created and stored several pre-embryos with the intention of using them to start a family together. Since then, the two have separated and now dispute the fate of the pre-embryos they created. Should the pre-embryos be considered persons, property, or something else? Should they be afforded the right to life because one party wants them to develop or should they be discarded because one party no longer wants to procreate? Who should decide? The lack of regulation in the area of assisted re- productive technology leaves these sensitive disputes in the hands of courts and raises many questions. This Note will provide an answer.

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