Document Type

Article

Publication Title

Washington University Law Review

Abstract

Legal transitions--that is, changes in legislation, regulations, or judicial decisions are necessary to improve any legal system. This process, however, is fraught with obstacles and hard decisions mainly because, while society may gain, some individuals suffer under a new rule. This raises a number of questions. Is the reform unfair to those who lose as a result of it? If so, should the new rule incorporate any form of transition relief to alleviate these concerns, such as compensation? Legal transitions can be particularly difficult when a new rule affects vested property rights. This Article uses water law reform as a vehicle for examining how legal transitions prompted by climate change might match the urgency of this slow-but inexorable process. Climate-change-driven water scarcity and Wall Street investment reveal shortcomings and inequities of current water law. But significant barriers to systemic reform require innovative transition design. Given that the most prevalent types of water rights are considered constitutionally protected property, holders of existing water rights will oppose reforms on fairness, economic, and constitutional grounds. Building on the legal transitions literature, strategies used in other water-scarce countries, and historical transitions in water law, this Article is the first to provide an in-depth analysis of the policy and constitutional implications of addressing the current water crisis by employing one of the less theorized forms of transitional relief: delayed implementation. This Article concludes that delayed implementation, when compared to other more traditional alternatives, will make the adoption of these legal changes more politically viable, reduce their vulnerability to constitutional challenges, and lead to fairer and more efficient outcomes. Because many of the advantages of delayed implementation are not specific to water law, this analysis suggests that delayed implementation has many applications as transitional relief in other areas of regulation.

Pages

479-540

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Volume

102

Issue

2

Publication Date

2024

Disciplines

Law | Water Law

Comments

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ISSN

2166-8000

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