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Student Researchers in Stanford Law School Practicum Recommend Smarter Ways to Manage Water

This story was written by Rob Jordan and was published March 19 on the Stanford University website as part of a series about Stanford researchers developing solutions to water supply and access challenges affecting billions of people.

Underwater viw of Salmon River in Idaho

Underwater view of Salmon River in Idaho

Carving its way through the Grand Canyon, the mighty Colorado River has long been a symbol of the American West’s unbounded wilderness. In reality, the river is heavily engineered, managed and used. It peters out before reaching its delta. In most years, users’ water rights, the amount they are entitled to by law, actually outstrip the amount of water available.

“That catastrophe replays itself on a smaller scale all across the West,” said Leon Szeptycki, who taught a practicum on stream flow restoration last year at Stanford Law School. “It was built into the legal system that if water flows downstream and you lose control of it, it’s a waste of water.” In addition to being affiliated with the law school, Szeptycki is executive director of Stanford’s Water in the West Program, a joint program of the Stanford Woods Institute for the Environment and the Bill Lane Center for the American West.

The use-it-or-lose-it ethos is compounded by growing populations, a changing climate and widespread drought. Among the biggest losers: fish and ecosystems dependent on stream and river flows. Current safeguards, such as the federal Endangered Species Act, mandate reductions in water diversions for human use, causing intense social and legal conflict between water users and federal regulators.

As part of the Stanford Law School practicum that Szeptycki taught in partnership with the National Fish and Wildlife Foundation (NFWF), student researchers set out to determine how Western states can increase reserves of environmental water and allocate it to the highest priority ecosystems in dry times, while empowering water users to earn money. They analyzed laws and interviewed state agency officials to draft a report, due out later this spring. The paper synthesizes best practices into recommendations for increasing the number of water rights transfers to maintain healthy flows for ecosystems. The report is part of a larger effort by NFWF to identify barriers and opportunities for environmental water transactions in Western states.

A Dry History

As Americans settled the West, the principles of private rights to land and mining were applied to water. The system, codified by state statutes and judicial decisions, ensured that those who came first would always have their water rights satisfied, and that water would be seen first and foremost as a resource to exploit. “The Western water system is based on the principle that the most senior water rights should be satisfied before junior users get a drop,” said Szeptycki, professor of the practice with the Stanford Woods Institute. This system can clog the process of any kind of water transfer, selling rights to water, whether to protect the environment or bring water to thirsty cities.

By the 1960s, however, states began realizing that their water allocation systems were badly damaging ecosystems, wildlife and recreation. People started coming around to the idea that water left in streams had value, too. Laws to protect stream flows followed. Eventually, states created legal tools to allow irrigators and other water users to transfer their rights for environmental and recreational uses, putting that water off-limits to other users.

System in Need of a Fix

Such deals often prove expensive and time-consuming because of the administrative processes required to review and approve them.

Short of completely overhauling water law – politically and legally unlikely – how can water regulators and users operate more effectively? Part of the answer can be found in Oregon.

Since the late 1980s, Western states have had wildly different experiences with environmental water rights transfers. Oregon, for example, approved about 2,000 transfers (1,700 of which were short-term deals), while Arizona approved none in that time. Perhaps unsurprisingly, states such as Oregon that have relatively easy procedures for short-term deals such as single-season forbearance agreements – deals that restrict a rights holder from withdrawing water for a season – end up having a lot of them.

In California and Colorado, rights transfers of five years or fewer are subject to the same review process as permanent transfers, with an average turn-around period of 480 days. The states’ expedited review processes for transfers of a year or less aren’t much better, taking more than four months on average. By comparison, Oregon strives to approve any rights transfer deal of fewer than five years in only 45 days.

Unlike permanent water rights transfers, short-term transfers are more likely to appeal to irrigators unwilling to give up control for the foreseeable future. These deals require less cost, scrutiny and data for approval. They allow state agencies and conservation groups to allocate water where it is needed in the short term, while avoiding the potential of paying to protect an ecosystem that becomes irrelevant as a conservation objective over time. Short-term transfers allow irrigators to decide whether to grow a small amount of crops in a drought year, or to sell their rights and make money that way.

Toward Solutions

Among the report’s preliminary findings:

  • Informal transactions, such as forbearance agreements, provide a great deal of flexibility without the burden of state review
  • The process for quantifying the amount of water that can be transferred to environmental uses is a major barrier to achieving deals. Some states require many years of data.

Elizabeth Hook, a Stanford Law School (JD ’15) who worked on the project, summarized the findings in one sentence: “Just provide the largest toolkit for deal-making that you can, with clarity and streamlining of administration at all levels.”

“No state is the same,” said Kori Lorick, another law student (JD ’15) who contributed research. “Each state has different stakeholders and different priorities – what works for one may not work for another.”

Specifically, the report suggests states institute five promising legal tools:

  • A framework of statutes, regulations and policies tailored to a broad variety of transaction types
  • Streamlined, clear rules for short-term water leases
  • Policies clarifying that informal, short-term water forbearance agreements are protected and cannot be abandoned or result in the permanent loss of water rights
  • More streamlined tools for measuring water use
  • Permanent institutions, such as water banks, that can facilitate and manage short-term transfers of water rights for environmental purposes
  • “These recommendations form a potential building block for water scarcity solutions across the West,” Szeptycki said.

Support for the Water in the West research was provided by the National Fish and Wildlife Foundation. The full report is due out later this spring.

This article was written by Rob Jordan of the Stanford Woods Institute for the Environment.

 

Stanford Law School to Establish First Amendment Professorship with $5 Million Gift

Stanford Law School will establish a professorship focused on the First Amendment rights of freedom of speech and freedom of the press, thanks to a $5 million gift made recently by the Stanton Foundation.

Dr. Frank Stanton

A new professorship focused on First Amendment rights will honor Dr. Frank Stanton. Photo courtesy of the Stanton Foundation.

The Stanton Professorship of the First Amendment will honor the legacy of Dr. Frank Stanton, an American broadcasting executive who served as the president of CBS from 1946 to 1971 and then as vice chairman until 1973. He also served as the chairman of the RAND Corporation from 1961 to 1967. He was the founding chairman and, subsequently, a trustee of the Center for Advanced Study in the Behavioral Sciences at Stanford University from 1953 to 1970.

“This extraordinary gift, in honor of one of the nation’s most passionate champions of journalism’s importance in a democratic society, will support the study and teaching of First Amendment freedoms,” said M. Elizabeth Magill, the Richard E. Lang Professor of Law and dean of the law school. “We are grateful to the Stanton Foundation for this lasting contribution.”

Stanton was a strong defender of free speech and was determined to use television as an “instrument of civic education.” In 1960 he supported the first televised presidential debates between Richard Nixon and John Kennedy, which required a special act of Congress before they could proceed. These debates were credited with helping Kennedy win the presidency and have since become a staple of U.S. presidential campaigns.

The endowed chair will allow Stanford Law School to appoint a nationally recognized scholar with an interest and expertise in the First Amendment issues of freedom of speech and of the press and the impact of technology in these areas. Magill said the search for potential candidates for The Stanton Professorship of the First Amendment will begin shortly. “This gift will allow us to expand our scholarship in these areas and support the school’s core missions of teaching and research,” she noted.

This is the fourth gift that the Stanton Foundation has made to Stanford. The Stanton Foundation established its first endowed chair at Stanford’s Center for International Security and Cooperation (CISAC) in 2013 with a $5 million gift, followed by a second endowed chair at FSI in 2014, and also funded CISAC’s Stanton Nuclear Security Fellowships for pre- and post-doctoral students and junior faculty studying policy-relevant issues related to nuclear security.

About the Stanton Foundation

The Stanton Foundation, created by Dr. Frank Stanton, supports areas where he was unable to complete his charitable intentions during his lifetime. Classic and 21st century First Amendment issues and the larger challenge of the creation of a better informed citizenry are a major focus. The foundation also supports international security studies, with a strong emphasis on nuclear security and the promotion of canine welfare.

Report from Stanford Law School and U.C. Berkeley School of Law Calls for College Pathways for Individuals in Criminal Justice System

San Quentin State Prison was a life-changing experience for Sean Simms, but not in the way most people would imagine.

Students at the Bard Prison Initiative receive their college degrees at Eastern New York Correctional Facility in 2013. Photo courtesy of Bard Prison Initiative.

Students at the Bard Prison Initiative receive their college degrees at Eastern New York Correctional Facility in 2013. Photo courtesy of Bard Prison Initiative.

Before being transferred to San Quentin, the only worthwhile things he learned in prison yards were how to play dominoes and cards. After he enrolled in the Prison University Project at San Quentin in Northern California, Simms said, I got hope from my peers who had been in school before me. They had such a set program. They had to hurry up and get to work on time, get in some exercise, and hurry up and get to school. I loved how busy they were. I wanted to follow those guys, those guys who were busy and had stuff going on and had hope.”

Simms earned a college degree through the Prison University Project, which he credits with giving him the social skills and confidence he needed to do well in job interviews and succeed in his current positions as a fiber-optic technician and a personal driver. It is the only in-person college program that exists for individuals incarcerated in California.

More Programs Needed

A new report from the Stanford Criminal Justice Center at Stanford Law School and the Chief Justice Earl Warren Institute on Law and Society Policy at U.C. Berkeley School of Law documents a tremendous need for programs like this one. Published today, “Degrees of Freedom: Expanding College Opportunities for Currently and Formerly Incarcerated Californians” identifies the state’s 112 community colleges and 33 public colleges and universities as gateways to help students learn while in custody and succeed after release.

The report recommends leveraging funding available through Senate Bill 1391, signed by Governor Jerry Brown in 2014, to provide community college courses inside prisons and jails. It identifies other laws, policies and funding sources that can be used to build high-quality college gateways. It also identifies support systems that are needed to help these students succeed, such as stable living and working conditions, programs that help students become ready for college-level coursework and counseling about workforce options that match their training. It calls for the criminal justice and education administrators to break the “silos” they usually work in and create partnerships to help those in custody succeed.

“College changes lives, strengthens our communities and decreases the likelihood that a person will return to crime. But high-quality college opportunities are few and far between for currently and formerly incarcerated students. This report provides a roadmap to build sustainable and replicable pathways to college for these aspiring students,” said co-author Debbie Mukamal, executive director of the Stanford Criminal Justice Center at Stanford Law School. The center has organized a class taught by Stanford graduate students through the Prison University Project for several years.

“We cannot ignore the thousands of potential students waiting to improve their lives and break the cycle of incarceration. We know how to help these students succeed, and it is time to use that knowledge,” said co-author Rebecca Silbert, executive director of the Warren Institute at U.C. Berkeley School of Law.

A Way to Reduce Recidivism

The report notes that more than 50,000 individuals will be released from California’s prisons during the next two years, and thousands more will be released from county jails. Proposition 47, approved by voters last year, reduces penalties for some crimes and is expected to make those numbers swell. The report cites a recent RAND study that found the participants in prison college programs have a 51 percent greater chance of recidivating that those who do not participate and, after release, the odds of obtaining employment are higher for those who participate in education.

Meanwhile, the state’s need for college-educated workers is growing and is expected to outpace the number of citizens with a college education. By 2015, 41 percent of jobs will require at least a bachelor’s degree.

Although California has the largest public education system in the nation, the state’s commitment to educating individuals in custody often stops with a general equivalency diploma (GED) or high school degree, and there are long waiting lists for the few programs that help these men and women become college graduates. During the 1990s, many college programs in the state’s prisons and campus-based transition programs for the formerly incarcerated were replaced with low-quality, noninteractive correspondence-based distance education.

The 154-page report is based on more than 175 interviews, academic research and historical investigation. It is aimed at policymakers, potential students and college administrators in California and also provides a blueprint for other states seeking to build pathways to education for those in the criminal justice system. The research and publication of the report were supported by the Ford Foundation as part of its Renewing Communities initiative.

“Degrees of Freedom” is available here.

Stanford Law School Jessup Moot Court Students Win Regional Championship, Advance To International Rounds

Stanford Law School Jessup Moot Court students will soon go where no other SLS Jessup team has gone before–to the White & Case International Rounds of the Philip C. Jessup International Law Moot Court Competition where they will serve as one of 12 teams to represent the United States.

The competition, currently in its 56th year, is known as the world largest moot court competition with more than 550 law schools in 80 countries that participate. This will mark the first time an SLS team has made it to the international round.

The team, made up of Cassandra Kildow, JD ’16, John Kenney, JD ’16, Vivek Tata, JD ’16, Giulia Scelzo, JD ’16, Mengyi Xu, JD ’17, Desley Horton, LLM ’15, and Udit Sood, LM’15, qualified for the competition after their victory at the Rocky Mountain Regional Round held at the Sturm College of Law at the University of Denver on February 19-22.

SLS Jessup Team (pictured from left to right ) Udit Sood (coach), Cassandra Kildow, Vivek Tata, Desley Horton (coach), John Kenney, Giulia Scelzo, Mengyi Xu.

SLS Jessup Team
(pictured from left to right ) Udit Sood (coach), Cassandra Kildow, Vivek Tata, Desley Horton (coach), John Kenney, Giulia Scelzo, Mengyi Xu.

“Winning the regional competition is the culmination of months of research and moot practices,” said Horton. “The team is excited to represent Stanford Law School and the United States at the International Rounds.”

“The Jessup regional victory is a great outcome, one that reflects the ever-growing passion and sophistication of students interested in international law issues here at Stanford,” said Allen S. Weiner, Senior Lecturer in Law and the team’s faculty advisor. “The Jessup event is extremely competitive, and at many law schools it is a formal part of the curriculum; students enroll in a class, prepare multiple drafts of their briefs, and compete in preliminary rounds against other teams from the school. Our students established this year’s Jessup team as an extracurricular matter on their own initiative, and did virtually all of the work independently.”

This season’s “Jessup Problem” focuses on procedural and substantive issues arising from the secession of one province of a nation and its annexation into another. “The parties are fictional, but the various issues bear similarities to conflicts in various parts of the world” said Horton.

The White & Case International Rounds of the Philip C. Jessup International Law Moot Court Competition will be held in Washington D.C. on April 5-11. The winner of those rounds will then compete for the Jessup Cup World Championship title on April 11.

Colleagues Honor Stanford Law School Professor Richard Craswell with Festschrift

Some of the nation’s most respected scholars in the field of contract law gathered at a “festschrift” symposium last weekend to celebrate the exceptional contributions of Stanford Law School Professor Richard Craswell to academia and share original research inspired by his insights.

Craswell standing ovation

Colleagues give Stanford Law Professor Richard Craswell (seated) a standing ovation at the festschrift in his honor.

“This is what we do when we want to honor a Hall of Famer. We get together and write papers,” explained M. Elizabeth Magill, the Richard E. Lang Professor of Law and dean of the law school, during the celebratory dinner on Friday in Paul Brest Hall at Stanford Law School. The event was co-sponsored by the law school and the Stanford Law Review.

The evening started on a light note with an original serenade in honor of Craswell’s quirky habit of setting his observations about contract law to different types of music, ranging from sea chanties and drinking songs to themes from classic musicals and westerns. Seven colleagues sang “I’ll Be Suing You” to the tune of “I’ll Be Seeing You,” accompanied by flute and guitar – with footnotes appended to lyrics shown on a big screen. Stanford Law School colleague and chorister Professor Alison Morantz later lauded Craswell as “the Cole Porter of legal academia with no significant rivals.” Morantz conceived the idea of the festschrift and handled the arrangements with help from Professor Barbara Fried.

Currently the William F. Baxter – Visa International Professor of Law, Richard Craswell is a leading scholar of the economics and jurisprudence of contract law. Since arriving at Stanford Law School in 1998, and in prior professorships at the University of Chicago Law School and University of Southern California Law Center, as well as six years as an attorney with the U.S. Federal Trade Commission, he has achieved recognition as an expert in all aspects of commercial law, including commercial paper and secured credit, as well as antitrust and consumer protection law.

Impressive turnout

The symposium, titled “Who Knows? Law in an Information Society,” was the largest one in recent years presented by the Stanford Law Review (SLR), according to SLR President Michael Mestitz (JD ’15). He said virtually everyone who was invited agreed to come. As a result, 25 leading scholars in law and economics, contracts, commercial law, antitrust law and related topics attended the discussions and presentations.

Five new papers presented at the symposium will appear in the June issue of the Stanford Law Review. They are:

  • “The Rule of Probabilities” by Ian Ayres of Yale Law School and Barry Nalebuff of Yale School of Management
  • “Information and the Aim of Adjudication: Truth or Consequences?” by Louis Kaplow of Harvard Law School
  • “Regulating for Rationality” by Alan Schwartz of Yale Law School
  • “Debiasing Through Law and the First Amendment” by Christine Jolls of Yale Law School
  • “What Do People Know (and Think They Know) About Contract Formation?” by Tess Wilkinson-Ryan of the University of Pennsylvania Law School and David A. Hoffman of Temple University Beasley School of Law


Craswell’s generous spirit

A recurring theme throughout the festschrift was Craswell’s generosity in critiquing colleagues’ scholarship with their best interests at heart. “It’s as if he crosses over from his intellectual terrain to your island and spends time there,” explained Morantz, praising his “almost uncanny” ability to “offer insights as an insider.”

Noting that she first met Craswell at the University of Chicago Law School when she was on the entry-level job market, Magill said that during a private meeting with him to discuss her paper, “he was inside my head” and “showed a level of empathy for my intellectual framework that was exceptional.” She said she felt “cheated” because she was new to law teaching and “I thought that all law professors were like that.” At the dinner she told Craswell, “You are the best of what we can possibly be as colleagues and scholars.”

Margaret Jane Radin, a professor of law at University of Michigan Law School, recalled that when she and Craswell were colleagues at the University of Southern California, he never said anything injudicious or lost his temper, never angled for a good recommendation or a prize, and even left his contracts notes for the newcomer. “He’s this wonderful human being and he acts like he doesn’t know that,” she marveled.

Larry Kramer, former dean of the law school and current president of the Hewlett Foundation said Craswell is “the definition of class“ and was exceptional because “anything you needed done he would do and he would do well and thoroughly.”

Intellectual giant

Associate Dean and Law Professor George Triantis focused on Craswell’s academic contributions, declaring, “There are different types of intellectual giants. Some cast long shadows in the field, while others shine sunlight that helps the rest of us find our way and find the paths to make our own contributions. My personal gratitude to Dick lies here, and I know that many others can report similar experiences.”

Triantis credited Craswell with helping to keep the field of contract law dynamic. He said Craswell’s classic work, “Contract Law, Default Rules and the Philosophy of Promising,”published in 1989, “may have produced the greatest impact in our field by clarifying and mapping for us the understanding of philosophical and economic perspectives on contract enforcement.” He commended Craswell’s “Against Fuller and Perdue” paper in 2000 as leading the field away from a dead end and opening up a bright, new framework for thinking about damages.

Triantis also cited Craswell’s generous and open-minded response to Eric Posner’s 2003 paper arguing that economic analysis had failed contract law. Acknowledging how complicated the field was, Craswell heralded “attempts to come to grips with what are, in my view the questions that really matter. As I see it, shedding any light at all on those questions is a useful contribution, whether or not we are able to produce a complete and definitive answer.”

“A lively and productive academic field needs bomb throwers,” Triantis said. “But we also need people who come in, clear the rubble or crumbling structures, and show us the way to construct a sharper and more useful understanding of complex questions that really matter, in contracts and elsewhere.” He concluded, “As a most esteemed, charitable colleague to all of us, Dick, you have and will continue to be a source of intellectual rigor and light.”

Craswell was characteristically modest when he spoke briefly at the end of the evening. Citing Lou Gehrig’s famous retirement speech in which he focused on his good fortune, Craswell thanked his colleagues and said simply, “When it comes to the luck department, I really have been lucky.”