Many facets of utility monopoly regulation are approaching a minimum of eight decades as part of our legal landscape. A bedrock principle of state utility regulation is the duty to serve, which demands that utilities provide nondiscriminatory service to all those within their geographic territory for the specific service for which they have been granted a monopoly. Within its exclusive territory, a utility is required “to serve all present and reasonably to be anticipated future users.” Each state has adopted some form of this for its regulated monopolies, although formulations differ. This Article argues that in light of climate change impacts, the duty to serve must change.

Heather Payne

Associate Professor of Law, Seton Hall University School of Law

With a few caveats, standard economic models assume that, from society’s perspective, the payment of a tax constitutes a costless transfer from the taxpayer to the government. The financial loss to the taxpayer is exactly offset by the financial gain to the government, which can use the resulting tax revenue for the benefit of its citizens. In other words, paying taxes forces taxpayers to forgo private consumption, but the resulting loss in utility can be counterbalanced by an increase in utility from government spending. In fact, if the government spends wisely on beneficial public goods that are undersupplied by private markets, then the taxand-transfer system can produce a net gain in utility that increases social welfare.

Gary M. Lucas, Jr.

Senior Associate Dean and Professor of Law, Texas A&M University School of Law

Last spring, the Supreme Court of the United States made a little-remarked constitutional ruling in Kahler v. Kansas. Upon casual inspection, Kahler looks like a doctrinal dead-end. The petitioner asked the Supreme Court to recognize a due process right for mentally ill defendants to raise the M’Naghten right-and-wrong test of insanity, and the Court said, “No.” The petitioner’s failure notwithstanding, Kahler is not a barren vine. On the contrary, it is heavy-laden with new doctrinal insights for criminal law scholars.

The case deserves a thorough look—not for what it can teach us about constitutional contentions that the Court has rendered unviable for the foreseeable future—but for what the creative arguments written by the petitioner’s attorneys can teach us about criminal law. Specifically, the briefing in Kahler unmasks a cached moral blameworthiness requirement in criminal law doctrine, on the same plane as the canonical requirements of voluntariness, action, and mens rea, but buried over the last two centuries in the rules governing the insanity defense.

Andrew Ingram

Scholar in Residence, South Texas College of Law

This Article makes two main contributions to existing literature. First, it asserts that in deciding whether to pursue sexual assault charges, prosecutors should not rely on the convictability standard. Assessing evidentiary sufficiency in sexual assault cases through the lens of a hypothetical jury is misguided because it incorporates a myriad of jurors’ extralegal considerations of victims’ behaviors, consisting of racialized, gendered, class, status and other prejudices and biases against victims.35 Declining to prosecute sexual assault based on the convictability standard not only perpetuates unwarranted misconceptions about certain victims, but also reinforces their marginalization by exacerbating the legal system’s unequal and discriminatory treatment. Instead, this Article proposes the reasonable prosecutor’s evidentiary sufficiency standard under which prosecutors should take into account only legal factors directly relevant to the evidentiary strength of the sexual assault case at issue.36 This proposed standard asks only whether a reasonable jury could convict the defendant based on the admissible evidence, rather than predicting whether jurors would likely do so.

Michal Buchandler-Raphael

Assistant Professor of Law, Widener Commonwealth Law School

Federalism scholars have long been fascinated by the unique relationship between the federal government and states that have  legalized marijuana. And with good reason. For the past fifty  years, Congress has classified marijuana as a Schedule I drug under the federal Controlled Substances Act (“CSA”), deeming the  drug to have a high potential for abuse and no accepted medical  use. Congress’s aim in establishing Schedule I of the CSA was to  “eliminate the market in Schedule I substances.” Thus, possessing, distributing, and manufacturing marijuana are federally illegal. Congress’s objective notwithstanding, over two-thirds of  the states (and territories) have legalized marijuana for medical or  recreational purposes. And, for the most part, the CSA does not preempt state laws legalizing marijuana. This creates a potentially volatile situation in which the substance is contraband under  federal law but is legal under perfectly valid state laws. 

Scott Bloomberg, Associate Professor of Law, University of Maine School of Law.