Volume 97, Number 5

Sentencing outcomes turn on moral and evaluative determinations. For example, a finding of “irreparable corruption” is generally a precondition for juvenile life without parole. A finding that the “aggravating factors outweigh the mitigating factors” determines whether a defendant receives the death penalty. Should such moral determinations that expose defendants to extraordinary penalties be subject to a standard of proof? A broad range of federal and state courts have purported to decide this issue “in the abstract and without reference to our sentencing case law,” as the Supreme Court recently put it in Kansas v. Carr. According to these courts, “it would mean nothing” to ask whether the defendant “deserves mercy beyond a reasonable doubt” or “more-likely-than-not deserves it” because moral questions are not “factual.” Instead, moral determinations are highly subjective “value calls” to which concepts of doubt and certainty do not intelligibly apply.

Implicit in these rulings is a controversial view of the nature of moral judgment. This Article traces the contours of the view and argues that it is out of step with the way the broader public thinks about morality and fails to address the issues defendants have raised. Courts should avoid wading into such controversial waters for two reasons. First, the judiciary has historically maintained neutrality on issues of significant public concern. Second, even if moral determinations are not factual, applying a standard of proof to at least some moral decisions at sentencing would change the outcome of the sentencer’s deliberations and improve the legitimacy of the legal system. For the reasonableness of doubt depends on context, and moral questions—“Are you certain the defendant deserves death?”—make salient the stakes relative to which a person should decide what to believe about ordinary empirical matters. On the resulting view, reasonable doubt in the final moral analysis is not just intelligible, but essential for correcting a bias in the structure of the bifurcated criminal trial that systematically disadvantages defendants: the tendency for de-contextualized “factual findings” in the guilt phase to control outcomes at sentencing.

In this Article, we explore and critique the foundational norms that shape federal and state energy regulation and suggest pathways for reform that can incorporate principles of “energy justice.” These energy justice principles—developed in academic scholarship and social movements—include the equitable distribution of costs and benefits of the energy system, equitable participation and representation in energy decisionmaking, and restorative justice for structurally marginalized groups.

While new legislation, particularly at the state level, is critical to the effort to advance energy justice, our focus here is on regulators’ ability to implement reforms now using their existing authority to advance the public interest and establish just, reasonable, and nondiscriminatory rates, charges, and practices. Throughout the Article, we challenge the longstanding narrative that utility regulators are engaged solely in a technical ratemaking exercise in setting utility rates. We argue that rate setting is and always has been social policy implemented within a legislative framework designed to promote the public interest. As we explain, when regulators and advocates expressly recognize this fact, it creates new opportunities for the regulatory system to achieve energy justice goals.

Through our reexamination of energy system governance, we evaluate new approaches to advance the public interest and set just and reasonable rates for energy consumers. These new approaches consider system benefits as well as costs, enhance universal and affordable access to utility service, alleviate income constraints on residential energy consumption as an economic development tool, increase equitable access to distributed energy resources such as energy efficiency upgrades and rooftop solar, and enhance procedural justice in ratemaking proceedings. We argue that over the long run, these pathways to a more just energy system align the interests of all system stakeholders by creating community wealth and collective prosperity.

A specter is haunting The Hague—the specter of American federalism. On July 2, 2019, the Hague Conference on Private International Law finalized the Hague Judgments Convention. The Convention seeks to establish a global floor for judgment recognition and promote seamless recognition and enforcement of judgments between signatories. Although virtually all observers in the United States recognize the value and importance of ratifying the Convention, stakeholders cannot agree on how to implement it: by federal statute or by uniform state law. Proponents of a so-called “cooperative federalism” approach to implementation, principally led by the Uniform Law Commission (ULC), have previously derailed U.S. ratification of the Hague Convention on Choice of Court Agreements (COCA) by insisting that principles of federalism required implementation through uniform state law. This argument is wrong as a matter of doctrine and policy. It is time to put it to rest once and for all.

This Note is the first piece of scholarship to squarely address the “cooperative federalism” argument as applied to the Hague Judgments Convention. It makes two principal arguments. First, it identifies the principles that ought to guide the implementation of a treaty on foreign judgments recognition and concludes that federal implementing legislation optimizes these interests. Implementation primarily by
uniform state law is inferior and poses serious disadvantages. Second, the ULC’s primary legal objection to the implementation proposal for the COCA outlined by the State Department—that the doctrine of Erie Railroad Co. v. Tompkins prohibits federal courts sitting in diversity jurisdiction from applying federal rules of decision prescribed by federal statute—was meritless in 2012, and it is meritless now. If any objections remain to implementing the Judgments Convention by federal statute, they are about turf and ideology. To the extent that the relevant stakeholders want to accommodate those political objections, this Note concludes by briefly outlining areas for compromise.