Climate Change Legislation in Context

By Hari M. Osofsky[*]

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Congress is finally taking climate change seriously, or at the very least is engaged in a flurry of activity regarding greenhouse gas emissions.   The Lieberman-Warner Climate Security Act made it out of the Senate Environment and Public Works Committee, and vigorous debates are taking place over the appropriate regulatory approach to climate change and energy.[1]  This Essay considers the context of that statutory conversation.  Namely, how does the possibility of U.S. legislative action fit within a broader picture of transnational climate change governance?

Professor Victor Flatt’s lead piece on climate change legislation in this colloquy provides a thoughtful analysis of the many pending federal climate change legislative proposals, including his assessment of what is “best.”  He provides a detailed description of the pending proposals, as well as a normative discussion of legislative goals and means of attaining them.  In the course of his analysis, he references both international negotiations and smaller scale regulation.  He indicates that U.S. legislation should be developed in a way that would be compatible with—but not wait for—possible future international agreements and also not block smaller-scale efforts.[2]

This Essay builds upon Professor Flatt's thoughtful analysis of the pending legislation by putting it in the broader context of developments regarding climate change.  In contrast to Professor Flatt’s emphasis on specific legislative proposals, this Essay provides a contextualized, normative analysis.  In particular, I focus on three main types of pressures on the legislation.  First, the legislation faces vertical pressures from “above” (international negotiations for the post-2012 regime) and “below” (state and local efforts).  Second, the legislation is influenced horizontally by activity in the other two branches of the U.S. government, namely climate change litigation and executive policy, as well as advocacy efforts by a range of nongovernmental actors.  Moreover, many interactions that ultimately influence legislation are simultaneously horizontal and vertical, such as when states and cities use federal courts to push executive branch agencies to regulate.[3]  Finally, and perhaps most importantly given the looming Presidential election, the shifting public awareness of climate change creates an impetus for Congress to take meaningful action or at least to appear to do so.

Together, these interactions imbue this legislation with significance beyond the specifics of its direct impacts.  Namely, the potential legislation forms part of a broader, complex regulatory map.  The viability and impact of legislative proposals depend on how a range of other people and entities behave, and in turn, the proposals influence their behavior.  In so doing, the legislation can serve in not only a norm-implementing role, but also norm-generating one.[4]  Through exploring the context of climate change legislation, this Essay thus argues for an integrated approach to transnational climate regulation.

Administrative Note: Spring Break and Updates

March 15^th–30^th is Spring Break for Northwestern University School of Law, and the Colloquy will take a brief respite during this period.  We would also like to announce a couple of quick updates.

First, Westlaw has recently made all Colloquy essays and posts available on its service, and this material should be available on Lexis in the near future. 

Second, we have made significant progress in our commitment to make content published by the Northwestern University Law Review easy and costless to access.  All of our past issues are now available through Hein Online.  Additionally, everything published by the Law Review since the fourth issue of our ninety-ninth volume is available for free as a PDF download through the past issues tab on our website.  As a result, anyone can easily locate Northwestern University Law Review content by using an internet search engine.  We will also continue our policy of permitting authors publishing with the Colloquy to post drafts of their forthcoming essays to SSRN, bepress, or similar web locations.

As always, thank you for visiting the Colloquy.

Administrative Note: New Editors

Spring is upon us again, and along with the rest of the Law Review, the Colloquy is in the process of transferring editorial control to the class of 2009.  Isaac Peterson, Melissa Whitehead, and Richard Kirkendall will be handing over control to three new editors:

Kristin Feeley, Senior Colloquy Editor, will be responsible for selection of the Colloquy's content and its overall production schedule. 

Jason Allen, Managing Colloquy Editor, will ensure that the editorial quality of all Colloquy pieces matches the quality of pieces found in the print Law Review. 

Brianne Straka, Executive Colloquy Editor, will handle Colloquy publication duties and act as the webmaster.

All submissions should be sent to Kristin, and all of the information in the Frequently Asked Questions still applies.  As always, the Colloquy focuses upon shorter essays on timely topics and we encourage your suggestions and submissions.

This year should provide for many interesting issues. Our colloquy on climate change will be ongoing.  In addition, we hope for timely scholarship resulting from high-profile Supreme Court cases, such as Danforth v. Minnesota and Spring/United Management v. Mendelsohn, that will produce a discussion like our recent five-part series on Bowles v. Russell.  Finally, we are interested in broadening the scope of the Colloquy by publishing new perspectives, such as a comparative or critical race theory, and by reaching out to authors who may not typically publish in American legal journals, including scholars in other disciplines or legal scholars from other nations.

Thanks for reading, and stay tuned—we have big plans for the next year.

The Unavailability Requirement

By Aaron R. Petty[*]

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The Sixth Amendment provides that a criminal defendant is entitled to “be confronted by the witnesses against him.”[1]  But this right is not absolute.  Forfeiture by wrongdoing extinguishes a defendant’s Sixth Amendment right to confront witnesses if the defendant wrongfully causes or is complicit in the unavailability of a witness.  But when the Supreme Court reiterated its approval of this doctrine in Crawford v. Washington,[2] it left few clues suggesting how the doctrine should be applied. Instead, defining the doctrine’s contours was left to the lower courts.  In determining whether the witness is “unavailable” to testify, these courts have borrowed the “good faith” test traditionally used to establish whether a witness is unavailable for purposes of admitting prior testimony.[3]  In this Essay, I propose a more nuanced approach to unavailability.  In Part I, I review the two situations in which testimonial statements of an unavailable witness may be admitted at trial notwithstanding the Confrontation Clause: admission of prior testimony and forfeiture by wrongdoing.[4]  I then suggest, in Part II, that forfeiture by wrongdoing serves, in part, to remedy the wrongdoing of defendants who misbehave, whereas admission of prior testimony does not serve a remedial function.  As a result, I recommend in Part III that the standard for proving unavailability should not only be different in the two situations, but that it should be significantly lower in the context of forfeiture by wrongdoing.  I conclude that once the proper standard is applied, the concept of unavailability loses much of its utility.  Courts would do better to focus instead on relevant wrongdoing to determine when forfeiture occurs.

I.  Unavailability as a Constitutional Matter

Two situations prompt Sixth Amendment concern with the unavailability of prosecution witnesses: (1) admission of prior testimony and (2) forfeiture by wrongdoing. Admission of prior testimony may include, for example, deposition testimony or testimony from a preliminary hearing.  At common law, only death and extreme illness were sufficient to excuse live, in-court testimony of a witness.[5]  A witness is obviously unavailable in death, and physical incapacity is a close second.

Barber v. Page[6] is the cornerstone of modern unavailability jurisprudence.  In that case, the witness was incarcerated in another state.  The prosecution never requested the attendance of the witness, but instead of requiring live testimony, the trial court admitted prior testimony of the witness from a preliminary hearing.  The Supreme Court held that because the state did not make a good faith effort to secure the witness’s presence, the witness was not unavailable.  The introduction of the witness’s prior testimony therefore violated the Confrontation Clause.