It's Not Ok, Boomer: Preventing Financial Power-of-Attorney Abuse of Elders

Genevieve Mann

Most people hope they will never need another person to step in and make financial decisions for them if they become “incapacitated.” Just ask Britney Spears. Yet many execute a power of attorney to protect their assets in case it happens to them. The power of attorney has become the universal financial management tool to prepare for future incapacity, preferred because it allows loved ones to effortlessly assist an elder with diminishing capacity. Unfortunately, along with ease of use, comes ease of abuse. Too often this ubiquitous instrument is used to misappropriate an elder’s property or usurp their autonomy due to a lack of oversight.

The rate of elder financial exploitation continues to rise as the U.S. population ages. The COVID-19 pandemic also exacerbated isolation and vulnerability for our elders. Nevertheless, the legal profession steadfastly holds its grip on the power of attorney as a utility instrument—despite the high risk. The academic conversation too narrowly focuses on a polarized choice: Either keeping powers of attorney unregulated and unsupervised or opting for an overly restrictive regulatory process. Rather than adhering to this false dichotomy, a better approach is creating a legal framework to address the increasing number of elders exploited at the hands of unscrupulous individuals.

This Article posits that the rise in elder financial exploitation due to power-of-attorney abuse demands a more robust and creative framework. The federal legislative response has been anemic; despite passage of the Elder Justice Act, which established a collaborative approach to protective services, the mandate has remained woefully underfunded. To prevent elder financial exploitation, a multi-disciplinary infrastructure should be bolstered with necessary oversight and protection measures. In particular, the model should be enhanced with agent supervision and a centralized power-of- attorney registry to increase detection and prevention, while not overburdening agents or elders. It is no longer adequate to allow unregulated power-of-attorney use while a growing number of elders remain at risk.

Public Land Management’s Future Place: Envisioning a Paradigm Shift

Sam Kalen

The recent sesquicentennial of Yellowstone National Park, the nation’s first and prototypical national park, marked an opportune moment for examining the management of the nation’s public lands. Public lands are confronting a myriad of challenges, whether from climate change and the efficacy of using the nation’s lands for fossil fuel development or renewable resources, or from how best to manage them for recreational use and preserve their pristine character and habitat for wildlife and other resources. Meanwhile, the Biden Administration is promoting its 30/30 campaign while exploring targeted changes to oil, gas, and coal development on public lands. Calls for reforming pointed areas of public land management seem endless and escalating. Most critics today focus attention on fixing some identifiable failure of public land management planning. Planning, after all, operates as the engine driving the modern administration of public lands. Some public land aficionados champion planning reform by accentuating the urgency of folding into the decision-making process Tribal Nations and Indigenous peoples, whose land may have been wrested from them to create the public land. Others lament how our planning processes, while moving toward landscape-level planning, have yet to move forward enough in response to modern ecological principles and challenges. Still others float specific reform proposals, often promoting a fix for a single type of public land.

I suggest these critics, while raising legitimate concerns, are ignoring a much larger problem, not yet captured by today’s commentary. Our public land laws remain tethered to an antiquated past. This Article reviews how public land planning has become dominant, and that in turn has allowed public land managers too much discretion to allow uses that may be inimical to the sustainability of identifiable landscapes. In sum, we have lost an enforceable vision for guiding planning decisions on the use of public lands, whether they are Park Service, Forest Service, Fish and Wildlife Service, or Bureau of Land Management administered lands. I review how this occurred and offer a novel path forward, suggesting a paradigm shift. That shift would elevate the importance of encoding an enforceable vision for our public lands capable of circumscribing potentially problematic decisions, while also crafting a new management paradigm that respects the importance of place.

The New Normal: Regulatory Dysfunction as Policymaking

Ming Hsu Chen and Daimeon Shanks

Scholars often presume that administrative dysfunction is a deviation from the norm of regularity in administrative law. This presumption is reinforced by courts who defer to agencies on the basis of a legal fiction of idealized regularity. In reality, irregularities are common in policymaking and they make agencies vulnerable to dysfunction. Irregularities are not bugs, but features of the administrative state. Sometimes, a national emergency makes political influence unavoidable and urges departures from usual regulatory processes. At other times, however, the framing of a problem as a national emergency is a pretextual justification to pursue a pre- determined political goal that may not be otherwise attainable or attractive through regular processes—a striking example of bad faith governance. The consequences of this kind of dysfunctional policymaking can be dangerous, especially when it then becomes normalized in agency policymaking.

Building on an emerging scholarship on internal administrative law, this Article looks inside agencies to expose the phenomenon of regulatory dysfunction in policymaking. It describes the structural characteristics and logics associated with irregular policymaking and provides a typology of agency responses to irregularities ranging from bureaucratic legalism to bureaucratic rationality. Using case studies from immigration law, environmental law, and public health law, it explains how the resulting irregularities can lead to dysfunction. It concludes by assessing the consequences of dysfunctional policymaking for administrative law and scholarship, showing where it makes a difference to flip the starting presumption of regularity. While irregularity is predictable, the normalization of dysfunctional policymaking is worrisome. This Article seeks to shift the discourse around administrative policymaking by injecting some realism about what is, and what should be, the new normal.

The Democratic Imperative to Make Margins Matter

Daniel Wodak

Many commentators lament that American democracy is in crisis. It is becoming a system of minority rule, wherein a party with a minority of the national vote can control the national government. Partisan gerrymandering in the House of Representatives fuels this crisis, as does the equal representation of small and large states in the Senate. But altering these features of the legislature would not end minority rule. Indeed, it has long been held that majority rule cannot be guaranteed within any district system, as a minority of voters nationwide can be efficiently distributed such that a minority party wins a majority of districts by narrow margins.

This Article offers a way to save majority rule. Since the way a party can gain control of the legislature with a minority of the vote is to win a majority of districts by narrow margins of victory and lose a minority of districts by large margins of victory, the solution is to make margins matter. Hence, this Article proposes that we preserve electoral districts in which the candidate with the most votes wins, while making the weight of their vote in the legislature (a representative’s “legislative power”) a function of margins of victory. The first goal of this Article is to outline how this proposal, which I call “weighted voting by margin of victory” (“WVMV”), retains the democratic virtues of district systems while ending minority rule. This is the first basis for the democratic imperative to make margins matter.

There is, however, a second basis for that same imperative, which turns on the political equality of voters. The U.S. Supreme Court has long held that democratic equality should be understood in terms of equal voting power (one person, one vote). But when margins of victory do not matter, the power of a vote lies exclusively in its potential decisiveness. A vote that changes the margin of victory without changing the victor is “wasted.” But it is an electoral reality that votes in competitive districts are more likely to be decisive, and votes in uncompetitive districts are more likely to be wasted. As a result, candidates and parties are more responsive to some voters than others. So voters are not political equals; they do not have equal voting power, except in an empty formalistic sense.

By contrast, WVMV gives votes a second type of power. In addition to the power to potentially decide who wins, a vote has the power to actually change the legislative power of the victor. Each vote, in effect, transfers a unit of political power to a democratic representative. This “transference” power can be meaningfully equalized between voters. A voter in an uncompetitive district is far less likely to change who wins but is equally likely to change the margin of victory, such that their vote is no longer wasted. Under this system, candidates and parties have stronger reasons to be more equally responsive to all voters. Hence, there is a democratic imperative to make margins matter, in order to give voters a meaningfully equal form of voting power.

The final goal of this Article is to explain how we can implement WVMV in modern democracies, focusing on three particularly challenging cases: the U.S. Senate, the Parliament of the United Kingdom, and the U.S. House of Representatives. These cases are challenging for several reasons, the most pertinent of which turn on the ways we should understand margins of victory when electorates are of unequal sizes (as in the U.S. Senate); are contested by more than two parties (as in the U.K.); or are conducted under different voting procedures (as in many districts in the U.S. House). I argue that WVMV should be considered feasible in all such contexts, and hence offers a practical, rather than purely theoretical, alternative to the status quo.