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Abstract: This paper is a critique of Kaplow and Shavell's recent book, Fairness versus Welfare (2002). Kaplow and Shavell argue that the Pareto principle implies welfarism - that is, that all social decisions be based on maximizing a social welfare function which combines individual utilities. Their welfarist program has three fundamental flaws. First, except when it merely enforces the Pareto principle, welfarism as such is generally indeterminate. For any Pareto-compatible ordering of a finite set of outcomes, it is possible to construct a corresponding social welfare function. Thus, the choice of the social welfare function is critical, but this choice must be made on non-welfarist grounds such as the fairness of the resulting outcomes. Second, society needs some procedure for selecting a social welfare function. These procedural rules, which amount to a constitutional framework, must themselves be chosen on non-welfarist grounds. Hence, much of constitutional law is necessarily non-welfarist. Third, defining and measuring utility presents severe difficulties. Unless individual welfare can be defined in a way that carries a high degree of moral authority, the idea that the Pareto principle should trump all other moral values is implausible. But Kaplow and Shavell's definition of welfare, which amounts only to individual desire gratification, lacks such moral authority. Moreover, the social welfare function itself must be defined in a way that respects the individualism on which Kaplow and Shavell ground the Pareto principle. But this also presents great difficulties. (To some extent, these first two problems can be avoided if we assume that the only permissible social welfare function is utilitarian, an assumption that Kaplow and Shavell explicitly reject but sometimes seem to implicitly adopt. But this solution would only exacerbate the third problem.) In short, welfarism is not really a viable alternative to fairness. The failure of the welfarist effort to reduce morality to economics does not mean, however, that economics has nothing to say about issues of equity. The final section of the paper discusses some ways in which economics can contribute to our understanding of equity through concepts such as the Nash bargaining solution.
Abstract: Statutory interpretation has been a fertile area of scholarship, but we know relatively little about the practical impact of various theories of interpretation. The ideal test would involve presenting randomly selected cases to two judges who are similar in most other respects but have sharply different theories of interpretation. As it happens, such a situation is presented by Judges Posner and Easterbrook, who have sat together on over 800 reported panel decisions. (Because en banc cases are subject to selection bias, they are discussed separately in the paper). Posner is a leading advocate of pragmatism, while Easterbrook is equally well-known for his support of formalism. As it turns out, the two judges voted differently in only one percent of these roughly 800 cases. This is substantially below the average level of disagreement among Seventh Circuit judges, and is also below the average rate for courts of appeals generally. Moreover, a careful examination of the statutory cases in which the two judges disagreed confirms that their theoretical disputes were not outcome determinative. Because Posner and Easterbrook have shown particularly serious interests in theories of interpretation (compared to most judges), the apparently slight level of impact on outcomes seems especially surprising. While far from definitive, this study suggests strongly that the conventional wisdom on this point significantly overestimates the impact of a judge's theoretical stances on voting behavior.
Abstract: Statutory interpretation has been a fertile area of scholarship, but we know relatively little about the practical impact of various theories of interpretation. The ideal test would involve presenting randomly selected cases to two judges who are similar in most other respects but have sharply different theories of interpretation. As it happens, such a situation is presented by Judges Posner and Easterbrook, who have sat together on over 800 reported panel decisions. (Because en banc cases are subject to selection bias, they are discussed separately in the paper.) Posner is a leading advocate of pragmatism, while Easterbrook is equally well-known for his support of formalism. As it turns out, the two judges voted differently in only one percent of these roughly 800 cases. This is substantially below the average level of disagreement among Seventh Circuit judges, and is also below the average rate for courts of appeals generally. Moreover, a careful examination of the statutory cases in which the two judges disagreed confirms that their theoretical disputes were not outcome determinative. Because Posner and Easterbrook have shown particularly serious interests in theories of interpretation (compared to most judges), the apparently slight level of impact on outcomes seems especially surprising. While far from definitive, this study suggests strongly that the conventional wisdom on this point significantly overestimates the impact of a judge's theoretical stances on voting behavior.
Abstract: The Pareto principle is often considered self-evident, particularly by economists. On close examination, however, it is much more problematic than is commonly believed. Preference satisfaction is only imperfectly related to values such as individual welfare and autonomy. Moreover, preferences can change during transactions or because of shifts in legal regimes, presenting knotty conceptual difficulties. Finally, complete adherence to the Pareto principle may be incompatible with other, equally appealing ethical standards. As Sen showed, the Pareto principle is inconsistent with at least some forms of libertarianism. More recently, Kaplow and Shavell have shown that if we rigidly adhere to Pareto, we thereby foreclose the possibility of giving any independent normative weight to values such as fairness or human rights. Thus, appealing as it may be, rigid adherence to Pareto may come at too high a cost. Given these various qualifications on the scope and appeal of the Pareto principle, it is best regarded as a useful rule of thumb rather than a bedrock ethical imperative.
Pareto principle, welfare economics
Abstract: As the realization sinks in that climate change will cause billions of dollars of harm even if we do everything feasible to cut back on emissions, the people who are directly harmed are going to start wondering whether they alone should bear the costs. After examining some of the relevant social goals for a cost allocation system, this paper considers four possible allocation principles: "Adaptation Beneficiaries Pay," "Emitters Pay," "Public Pays," and "Climate-Change Winners Pay." These principles do not cover the universe of possibilities but they seem to be the most plausible. The paper tentatively suggests that the preferred principle should be "Emitters Pay" but that cost allocations between taxpayers and beneficiaries ("Public Pays" plus "Beneficiaries Pay") may also have a role.
Climate change, compensation, insurance, adaptation
Abstract: These con law haiku Tell law with style and rhythm. Download and enjoy.
Constitutional law, Supreme Court, poetry, haiku, Constitution
Abstract: This Article questions the widespread scholarly view that maximizing economic efficiency should be the sole goal of the intellectual property and antitrust laws. We propose that the law should also encourage a fair division of the economic surplus, at least by considering it as a tiebreaker when the dictates of economic efficiency are ambiguous or controversial. We begin by surveying some challenges that have been made to the theoretical underpinnings of exclusive reliance on economic efficiency, but go on to argue that, even on the terms of welfarism, some regard for distributive fairness is appropriate. First, since fairness is a widely shared social value, rules that promote a fair distribution of the economic surplus are likely to mimic what rational people would voluntarily have agreed to ex ante. Therefore, rules that favor fairness take into account the fact that a fair distribution is a social good for which people are willing to bargain. Second, rules based on fairness often lead to the economically efficient result even on welfarist terms. For example, where there are increasing returns to scale, potential producers and customers would agree ex ante to a fair division of surplus. Such an ex ante agreement makes it easier for producers to gain a critical toehold in the market, fosters expansion, and allows consumers to receive more benefits from economies of scale. Therefore, a rule that favors fairness when the economically efficient rule is ambiguous may itself be the efficient rule. The Article concludes with an exploration of how a tiebreaker rule in favor of fairness would affect the analysis of intellectual property issues. The first conclusion is that there should be a legal presumption in favor of open standards except where efficiency concerns clearly dictate otherwise. The second conclusion is that the law should disfavor price discrimination and similar conduct by rights holders, again with the qualification that efficiency concerns may override this presumption.
Fairness, intellectual property, antitrust, open standards, price discrimination
Abstract: Discounting can have a drastic impact on the valuation of future environmental impacts, particularly over long periods of time. Especially profound problems are raised by the use of discounting over multiple generations, leading even some economists and a number of legal scholars to reject its use in the intergenerational context. These problems are indeed troubling, given the possibility that discounting might lead to the nearly complete neglect of the interests of distant generations by the present one. (The classic example is the "Cleopatra" hypothetical, in which it is not worthwhile for Cleopatra to skip a helping of dessert in order to save a child's life today.) Nevertheless, as this paper shows, the logic of discounting is not easily avoided. This paper demonstrates that the standard economic technique of exponential discounting follows from three modest assumptions: (1) environmental benefits have positive value in all future time periods; (2) benefits are additive, so that the benefit during any given time period is equal to the total benefits during its sub-periods; and (3) the preference for permanent solutions over temporary ones does not vary depending with the starting date. Given these modest and seemingly morally acceptable assumptions, exponential discounting is unavoidable. Relaxing these assumptions generates two alternative methods of discounting. If we relax the assumption that benefits are additive, the model allows the assignment of "perpetuity" values - that is, of bonuses for resources with the capacity for indefinite viability. For example, we might attach a higher intrinsic value in each time period to a species which is still viable rather than one that is doomed. This bonus value, which can be thought of as the value of the environmental benefit at infinity, is not subject to discounting. Alternatively, relaxing the third assumption allows the use of hyperbolic discounting. The switch from exponential to hyperbolic discounting is known to have important practical consequences for analysis of problems such as global climate change. Hyperbolic discounting essentially involves a declining discount rate, reducing its impact on far-future benefits. As it turns out, these modified discounting techniques fit naturally with situations involving cooperation across generations, rather than one-shot decisions. These techniques also ameliorate, although they do not completely eliminate, the ethical concerns over discounting across multiple generations.
Discounting, Cost-Benefit Analysis, Multiple Generations, Environmental Law
Abstract: Even if the world implements an optimal program for reducing greenhouse emissions, significant effects of climate change will still occur. Examples include changes in sea level, precipitation patterns, geological features such as permafrost, and harm to sensitive ecosystems such as coral reefs. This paper considers how the costs of those effects might be redistributed from victims to large emitters. It provides a sketch of a possible compensation system, which could be implemented either internationally or within the U.S., and either through litigation or an administrative scheme. In order to avoid difficult valuation issues, problems of proving causation, and long time lags, damages would be based on the cost of climate change adaptation, such as the expenses of preventing damage to or restoring infrastructure and ecosystem services. While undercompensating victims, the scheme could provide a practical method of reallocating the costs created by climate change.
climate change, compensation, ecosystem services, adapatation
Abstract: The federal government so far has shown little initiative in addressing the issue of climate change. Perhaps surprisingly, however, state governments have moved much more aggressively. By 2006, every state had taken steps of some kind to address climate change. California has been the leader, with legislation aimed at reducing greenhouse emissions from automobiles and electrical generators, as well as an ambitious mandate to reduce emissions to 1990 levels by the end of the next decade. Federal climate change legislation seems increasingly likely, but at least some states are likely to continue pursuing independent initiatives. Courts, state governments, and the EPA will then be faced with the question of how much room remains for state climate regulations. This Article argues for a bifurcated approach to the constitutional authority of states to pursue climate change mitigation. Courts should reject regulations that violate clear statutory preemption clauses, discriminate against interstate commerce, ban transactions under federal cap-and-trade schemes, or directly interfere with international agreements. In the remaining cases, the Article advocates adoption of a strong presumption of validity for state climate change regulation.
climate change, federalism, environment, preemption
Abstract: The Supreme Court's citation of foreign tribunals has been highly controversial. My purpose in this essay is to examine this controversy in light of historic American attitudes toward the "law of nations" and other forms of foreign authority. My thesis is that foreign law has deeply permeated our legal system from the very beginning. Citation of foreign law did not merely reflect the paucity of relevant domestic precedent. Rather, it reflected a deeply held understanding of law, in which background legal principles were not tied to any particular jurisdiction. Such background principles permeated specific legal systems, filling gaps and providing context for positive enactments such as statutes and written constitutions. Given this understanding of law, implementation of transnational legal principles was bound to be reflected in frequent citation of foreign legal authority. The fact that a practice is deeply embedded historically does not prove its validity. It does, however, make it difficult to attack the practice as a suspect modern innovation or to make a plausible claim that disastrous results will surely follow. It is also difficult to argue that references to foreign sources violates the mandate of the framing generation, when members of that generation assumed that such reference would be made and indeed referred to transnational legal principles in the Constitution itself.
Supreme Court, law of nations, citations
Abstract: We have spent much of our academic careers arguing that judicial decision-making - even in constitutional cases - is a specialized craft, not merely an exercise in politics. We have suggested that good judging requires both expertise and a certain set of dispositional traits, and that it can be enhanced or hindered by both personal traits and situational characteristics. This essay is part of that continuing project. In a forthcoming book, Judgment Calls: Principle and Politics in Constitutional Law, we describe and defend our vision of the process of constitutional adjudication. We also provide examples of good and bad judicial opinions, and identify existing and proposed structural supports conducive to good constitutional decision-making. In this essay, to be published in an edited volume on the psychology of judicial decision-making, we call on some of the ideas from our book to translate our theorizing into concrete suggestions for further research. In Part One, we describe what judges do when they decide constitutional questions, concluding that they are primarily exercising the same legal expertise that judges and lawyers utilize in all of their professional decisions. Part Two focuses briefly on the personal and contextual characteristics that have been shown to produce or interfere with expert decision-making in general. Finally, in Part Three we turn to our main focus: the legal structures that might enhance the positive characteristics and minimize the negative ones.
judges, judicial decision-making, judicial review
Abstract: This article has two goals: providing legal and policy analysts with a basic understanding of the types of computer models that are used in studying climate change, and thinking through the uses and limitations of these models for courts and agencies. Because this article covers a good deal of fairly diverse terrain, it may be helpful to identify four key "take away" points: 1. Climate models establish a lower end estimate for global temperature impacts, but the distribution is less clearly bounded on the high side - or in simpler terms, the high-end risk may be considerable. The models are better at predicting temperature patterns than precipitation patterns, and global predictions are considerably firmer than more localized ones. 2. Economic models are much less advanced, and their conclusions should be used with caution. Unfortunately, economists are not always carefully about incorporating uncertainty into their policy recommendations. 3. Climate scientists have created a unique institutional system for assessing and improving models, going well beyond the usual system of peer review. Consequently, their conclusions should be entitled to considerable credence by courts and agencies. 4. Model predictions cannot be taken as gospel. There is considerable residual uncertainty about climate change impacts that cannot be fully quantified. The uncertainties on the whole make climate change a more serious problem rather than providing a source of comfort. The policy process should be designed with this uncertainty in mind. For instance, rather than focusing on a single cost-benefit analysis for proposed regulatory actions, the Office of Management and Budget (OMB), which oversees federal regulatory policy, might do better to require the development of standardized scenarios for agencies to use.
climate change, modeling, environmental policy
Abstract: Antitrust opinions rely heavily on economic analysis but little on statutory text. Surprisingly, this text-free mode of interpretation is warmly endorsed by leading textualists such as Justice Scalia and Judge Easterbrook. We argue that their approach to antitrust is irreconcilable with their general theories of statutory interpretation. Their theory is that the antitrust texts are essentially lacking in content, operating as a delegation of policymaking authority to courts. We undertake a close textualist analysis of the Sherman Act and later antitrust statutes. For the conscientious textualist, the statutory texts are far from being blank checks. For instance, textualists have analyzed common law terms in other statutes far more cautiously than they interpreted section 1 of the Sherman Act, either applying the majority view of the state courts at the time of enactment or choosing among current variants of state common law. Nor do the texts of the antitrust statutes evidence a delegation to the courts - on the contrary, the only clear delegation of antitrust authority is to the FTC. Thus, textualists either need to rethink their theory of statutory interpretation or reconsider their allegiance to contemporary antitrust doctrine.
antitrust, textualism, statutory interpretation
Abstract: Using citation data from the Supreme Court's 1984 and 1990 Terms, this study tests three models of judicial dynamics. The first model posits that the extent of an opinion's importance to the law, as measured by how frequently it is cited by courts and commentators, is determined by a host of relatively small factors. This model predicts a normal, bell-shaped curve of citation frequencies. The second model posits that judges have bounded rationality and strong attachments to existing rules, leading them to practice normal science most of the time with occasional paradigm shifts. In empirical studies by various social scientists, this kind of model has been found to produce frequency distributions that are roughly bell-shaped but have a characteristic known as leptokurtosis. The third model stems from complexity theory (also known as chaos theory or fractal geometry. This type of model predicts a power curve that is characteristic of many social and natural processes, such as earthquake severity. Because earthquakes provide such a vivid metaphor for legal change, this can be called the tectonic model of legal dynamics. As it turns out, the first model is clearly wrong, and the second model is also at odds with the data. On the other hand, the tectonic model provides a good statistical fit for the data. Thus, at least in terms of this preliminary empirical investigation, complexity theory may provide important insights into judicial dynamics.
Supreme Court, judges, citations, complexity theory
Abstract: Tort cases generally deal with routine risks - the kind of risk that a person encounters as a result of driving a car or buying a product. These risks are also staples of the insurance industry. Today, however, society faces risks that threaten massive harms to large segments of the public. Such risks materialized with 9/11 and Hurricane Katrina, and may confront us with climate change. The first part of this article is comprised of case studies of how the tort system has responded to catastrophic risks such as large-scale flooding, terrorist acts, and climate change. Liability approaches vary depending on the problem and jurisdiction, but there is at least no consistent pattern of immunity for those who have created catastrophic risks or failed to take reasonable precautions against them. Part II examines how compensation for catastrophic risks could contribute to societal goals such as deterring undesirable risks and social risk-spreading. The risk-spreading goal is particularly important because of the reluctance of private insurers to cover such risks. Compensation, whether administrative or judicial, might also contribute to stronger risk prevention or mitigation, and under some circumstances would advance corrective justice.
torts, catastrophic risks, liability, insurance
Abstract: Because rights operate as trumps over normal governmental decisions, they have an inherent cost. Consequently, by entrenching protection for human rights, governments can signal a willingness to give up power in the short-term to obtain long-term benefits. Investors can infer from this that the government has a low discount rate and is less likely to pose a threat of expropriation. Similarly, when courts vigorously enforce human rights, they dramatize their judicial independence, which is valuable to investors who themselves have no interest in human rights. thus, human rights enforcement may help encourage investment and thereby indirectly foster economic growth.
Abstract: Besides its direct moral benefits, human rights protection may also serve an indirect economic function by conveying a signal about the government in question. Because rights operate as trumps over normal governmental decisions, they have an inherent cost. Because protection of human rights is costly to governments, a government's embrace of constitutionalism provides a broader message about its commitments. In particular, by entrenching protection for human rights, governments can communicate that they are willing to give up power in the short-term to obtain long-term benefits. Investors can infer from this that the government has a low discount rate and is less likely to pose a threat of expropriation. Similarly, when courts vigorously enforce human rights against their governments, they dramatize in the strongest possible way their judicial independence. An independent judiciary is valuable to investors who themselves have no interest in human rights whatsoever. Thus, as a beneficial side-effect, human rights enforcement might help encourage investment and thereby indirectly foster economic growth.
Abstract: In their excellent new book, Retaking Rationality, Richard Revesz and Michael Livermore make a strong case for reforming cost-benefit analysis (CBA). Too often, as they convincingly document, CBA has been identified with an anti-regulatory agenda rather than reflecting sound economic analysis - and I would add, too often CBA has served as a means of hindering the implementation of statutory mandates. Their specific proposals for reforming CBA seem sensible. So does their desire to reform the role of OMB in overseeing regulatory policy.
The trouble is that these reforms do not go far enough. The antiregulatory bias of OMB certainly has handicapped environmental policy, but more fundamental changes are needed if we are to achieve real progress. Toxics policy needs to be rethought from the ground up along the lines of the EU REACH Directive, while climate policy needs to be guided by a precautionary attitude toward mitigation and a search for robust adaptation strategies. As an institutional home for overseeing these efforts, we should consider revamping OMB into an Office of Management, Budget and Sustainability.
Cost-Benefit Analysis, environmental regulation, climate change, model uncertainty
Abstract: Legal scholars have focused their attention on regulatory standards. Less attention has been given to the inevitable "slippage" between the standards and the ensuing implementation. This essay presents an alternate view that highlights the slippage. Part I discusses two forms of slippage. "Negative" slippage is a ubiquitous feature of environmental law: something that is legally mandated simply fails to happen. "Affirmative" slippage is more interesting: the required standards are renegotiated rather than ignored, resulting in a regulatory regime that may bear little resemblance to the "law on the books." Part II explores how the concept of slippage might inform discussions of legal doctrine, environmental policy, and environmental pedagogy. It turns out that the Supreme Court has had a certain degree of complicity in the creation of slippage. Slippage also has implications for policy debates over environmental standards. If standards are not automatically translated into compliance, our understanding of their costs and benefits may shift. Finally, in terms of teaching, we need to devote more attention to compliance-related issues.
Abstract: The EU REACH directive was enacted at the end of 2006. It contains perhaps the most rigorous testing requirements of any regulatory regime in the world. It also requires registration of all existing and new chemicals produced or imported in volumes of a ton or more per year per manufacturer or importer. This Directive promises to transform the legal context of the chemical industry.
This essay begins by discussing the difficulty of risk assessment and the very mixed record of the United States in regulating toxics. It then discusses the directive in more detail. Finally, the article suggests that five lessons can be drawn from REACH: (1) the potential for international learning, which allowed the EU to benefit from its own experiences as well as the American struggles with toxic regulation; (2) the power of "next generation" environmental policies to mold industry behavior; (3) the need to attack the "tyranny of the status quo" rather than granting permanent regulatory exemptions to existing products and facilities, (4) the need for open governance in crafting far-reaching regulatory changes; and (5) the advantages of using supply-chain leverage to broaden the impact and effectiveness of regulation.
European Union, toxic chemicals, REACH, regulatory mechanisms, supply chain
Abstract: "Judgment Calls" addresses the problem of judicial discretion in constitutional law. Many political scientists and some prominent legal scholars suggest that constitutional adjudication is just politics in disguise. Others propose the use of methodologies like textualism or originalism to constrain what they view as an alarming degree of judicial discretion in interpretation. At bottom, both sorts of thinkers believe that judging has to be either tightly constrained and inflexible or purely political and unfettered: There is, they argue, no middle ground. We disagree. In this book, we argue that judging can be - and often is - both principled and flexible. In other words, we attempt to reconcile the democratic rule of law with the recognition that judges have discretion. We explain how judicial discretion can be exercised responsibly, describe the existing constraints that guide and cabin such discretion, and suggest improvements. In exploring how constitutional adjudication works in practice (and how it can be made better), the book covers a wide range of topics including judicial opinion-writing, the use of precedent, the judicial selection process, the structure of the American judiciary, and the nature of legal education. The book concludes with a careful look at how the Supreme Court has treated three of the most significant and sensitive constitutional issues: terrorism, abortion, and affirmative action.
Abstract: This Article proposes a modular conception of environmental regulation and natural resource management as an alternative to traditional approaches. Under traditional approaches, agencies tend to operate independently, and often at cross-purposes, using relatively inflexible regulatory tools, without significant stakeholder input, and without institutional mechanisms capable of adapting to changing conditions over time. Modularity, by contrast, is characterized by a high degree of flexible coordination across government agencies as well as between public agencies and private actors; governance structures in which form follows function; a problem-solving orientation that requires flexibility; and reliance on a mix of formal and informal tools of implementation, including both traditional regulation and contract-like agreements. The Article frames the enterprise of environmental regulation and resource management as an exercise in designing governance institutions capable of managing multiple and seemingly incompatible demands over the long term. This approach departs from the traditional legal framing of such environmental conflicts as shorter-term and zero-sum questions of jurisdiction, authority, entitlement, and prohibition. To illustrate modularity, the Article presents a detailed case study of the CalFed Bay-Delta Program, a multiagency effort to address competing demands on the water resources in the San Francisco Bay Delta. The story of CalFed illustrates many features of the modular ideal identified in the Article, and shows concretely how such an approach can achieve both procedural and substantive policy innovation while also producing measurable environmental improvements on the ground. The case study anchors the elaboration of the modular conception and its constituent elements presented in the latter part of the Article. Finally, the Article analyzes why the modular ideal is so hard to achieve in practice, yet it concludes that there is no alternative to moving toward modularity given the complex nature of the environmental and natural resource problems that we face.
Administrative Law, Environmental Law, Political Science
Abstract: The Bush Administration chose Guantanamo as a detention site in the belief that the military base was immune from federal habeas jurisdiction, leading to a protracted dispute between the Executive Branch, the Supreme Court, and Congress. Justice Stevens played an important role in this struggle over federal jurisdiction, writing two critical majority opinions and an important dissent about habeas jurisdiction. His two majority opinions were countered by fervent dissents by Justice Scalia. Examining these clashes is well worthwhile because of the importance of the legal issues, but also because of the light they may shed on the different analytic approaches of these two influential Justices. This paper gives particular attention to a seemingly arcane and technical battle over the retroactivity of jurisdiction-stripping statutes. Not unusually, where Justice Scalia saw a bright-line rule, which he accused the Court of wantonly trammeling, Justice Stevens instead saw a more pragmatic standard. A close examination of precedent supports Justice Stevens's view and rebuts Justice Scalia's accusation of lawlessness. Rather, it was Justice Stevens's majority opinion that was the more faithful to the rule of law.
Abstract: Imagine that you are a researcher who is interested in the environmental impacts of projects affecting a particular species of animal or watershed. No central registry exists with this information. The only way of locating the relevant environmental assessments would be to identify each potential government agency, federal, state, and local, that might be involved in such projects, and then to make a document request from each individual agency. Some of the documents would be available only in hard copy once they were found, although more recent documents might be available on compact disk. Moreover, many agencies might be unable to locate the documents themselves because there is no systematic tracking of the most common forms of environmental assessments. It would be a significant step forward simply to make all environmental impact information available online. Combining such a database with an efficient search engine, and linking this and other environmental information through a geographic information system (GIS), could transform our ability to access environmental information. We can also try to link assessments with monitoring and other later site information, so that we can begin to evaluate our predictions and mitigation measures. This may seem a pedestrian concept. It certainly involves no new technological breakthroughs or major legal reforms. For this reason, it is all the more dismaying that environmental information is still stranded in the era of paper copies and steel filing cabinets.
Environmental impact statements, GIS, information technology
Abstract: Standing doctrine is well-known to be a quagmire, plagued by inconsistent results and judicial dissension. Worse, leading scholars have cast doubt on its historical pedigree and conceptual underpinnings. Yet, there seems to be little prospect for a radical change in direction. This article proposes a more modest doctrinal shift. The proposed approach is much simpler than the current test, but preserves the core intuition that plaintiffs must have some special connection to the subject-matter of the dispute, as opposed to a generalized interest in law enforcement or public policy. The proposal addresses standing in environmental cases, which form a major part of the Supreme Court's standing jurisprudence. The place-based standard is easily stated. Under this approach, a plaintiff has standing to contest environmental violations involving a specific geographic area, provided that the plaintiff has an appropriate personal connection to the area. The place-based approach would clarify and simplify existing doctrine, but without working a revolution. The Court's two most recent environmental standing decisions are not only consistent with this test, but quite readily resolved. People who live near and use a stream are obviously appropriate individuals to litigate issues relating to the pollution of the stream, as the Court correctly concluded in the Laidlaw case. And no one has a better claim than a state government to litigate harms to that state's environment - and even more so, potential erosion of that state's territory. Thus, Massachusetts v. EPA is also an easy case under the place-based approach.
standing, environment, climate change, jurisdiction
Abstract: Every Supreme Court opinion is prefaced by a curiously self-contradictory citation. The Syllabus is accompanied by a footnote warning of the Syllabus's unofficial status. By the same token, of course, the footnote itself is unofficial and has no legal standing. This essay reexamines the status of the Syllabus, and argues that it should have precedential authority.
headnote, abstract, Supreme Court, reporter, decisions, Detroit Lumber, Detroit Timber, United States Reports, clerks, Balkin, footnote
Abstract: A cadenza is a standard part of the concerto, originally intended to be improvised by the performer rather than supplied by the composer. This essay asks whether the Constitution contains cadenzas - that is, instructions for the interpreter to improvise upon the Constitution's grand themes. The best examples are the Ninth Amendment and the Privileges and Immunities Clause of the Fourteenth Amendment. I argue that both of these constitutional provisions call for the protection of unenumerated fundamental rights, leaving the specification and evolution of those rights to further elaboration. I also argue that foreign human rights protections as well as American traditions are relevant to that process of elaboration.
To continue the musical metaphor, the essay comes in four movements. The first movement reprises constitutional history and text; the second considers some methodological issues; the third sketches some applications, including abortion and homosexuality; and the fourth responds briefly to the qualms of legal formalists.
constitutional law, Ninth Amendment, Fourteenth Amendment, fundamental rights
Abstract: A great deal of attention has been devoted to federalism issues relating to climate change mitigation. In contrast, the federalism dimension of adaptation has only begun to receive attention. Regardless of mitigation efforts, however, it is clear that society will experience substantial climate impacts and that major adaptation efforts will be required. What roles should the states and the federal government play in adaptation? This exploratory paper considers the policy issues involved in determining how to divide funding and control of adaptation projects between states and national governments, as well as some limitations that may flow from the U.S. Constitution.
Federalism, Climate Change Adaptation
Abstract: Phil Frickey has made important contributions to constitutional law, statutory interpretation, and Indian law. This is the Introduction to a forthcoming symposium in the California Law Review on Frickey's scholarship. The contributors include Bethany Berger, James Brudney, William Eskridge, Sarah Krakoff, John Manning, Robert Post, Peter Strauss and Ernie Young.
Besides providing an overview, the Introduction explores three important themes of Frickey's scholarship: (1) his reliance on practical reasoning by judges; (2) his emphasis on respecting the institutional role of the legislature; and (3) his view that judges must mediate between certain conflicting values without being able to provide a permanent resolution of the conflict.
Abstract: Quantifying risks with confidence is often difficult. For the past thirty years, agencies and courts have struggled with the treatment of uncertainty in environmental impact statements. As we will see, the results have been an unsatisfactory muddle. We should be able to do better. This problem is all the more important today. Climate change will require innovative solutions - new energy technologies, new adaptation strategies. These innovations will inevitably pose risks, often in the form of possible harm to human welfare or the environment. Climate change itself involves uncertainties. Evaluating these risks and informing decision makers and members of the public will be challenging.
Part I of this article provides background on the National Environmental Policy Act (NEPA) for the uninitiated. It will then use the example of dam failure to illuminate the problem of risk assessment in impact statements. Part II uses nuclear power as the basis for a detailed case study. It is hard to resist the impression that the regulatory agency has shied away from discussing risks whenever allowed to do so by the courts. In Part III, the focus turns to the effort of the Council on Environmental Quality to guide agency consideration of uncertainty. Finally, Part IV provides some suggestions for improvements in current practice, and Part V offers a brief conclusion.
NEPA, uncertainty, model uncertainty, environmental assessment, nuclear power
Abstract: As we begin to design climate adaptation into our institutions, we should be careful to learn from past failures rather than repeating them. After almost four decades, we have had many opportunities to see NEPA's system of environmental assessment in action. We can do better in approaching climate adaptation assessment. We can learn five valuable lessons from NEPA's shortcomings: (1) Assessment of climate impacts and adaptation needs must be an integral part of the agency's decision making process, not an afterthought as is too often the case for environmental assessments. (2) Climate impact assessments should be available on-line and linked with GIS systems. (3) Formal follow-up mechanisms must be institutionalized, and information about the effectiveness of adaptation measures must be readily available on-line. (4) Planning should consider a range of potential adaptation scenarios to identify robust adaptation measures. (5) To ensure that agencies adopt a proactive approach to adaptation, mechanisms such as a prize process should be used to ensure that adaptation needs are identified, rather than having adaptation considered only when specific projects are on the agency's agenda.
Abstract: Although we are used to thinking of international cooperation as nation-to-nation, cooperation between the European Union and individual American states is becoming increasingly important in areas such as consumer safety and environmental regulation. This paper surveys the potential legal pitfalls - primarily the dormant commerce clause and preemption on the U.S. side, and the limitations of EU enforcement on the European side. It suggests some approaches to designing cooperative agreement to minimize legal risks.
European Union, federalism, environmental regulation
Abstract: Threats to national security generally prompt incursions on civil liberties. The relationship has existed since the presidency of John Adams and has continued through two World Wars, the Cold War, Vietnam, and to the present day. Though this historical phenomenon is commonplace, the implications of that history for our post-9/11 world are less clear. In the long run, if we are to cope with present and future crises, we must think deeply about how our historical experience bears on a changing world. This book, published by the Russell Sage Foundation, addresses the past and present relationship between civil liberties and national crises, with contributions from leading legal scholars and historians. They seek both to draw historical lessons and to explore how the present situation poses unique issues. The contributors include Alan Brinkley, Daniel Farber, Stephen Holmes, Ronald D. Lee, Jan Ellen Lewis, L.A. Powe, Jr., Ellen Schrecker, Paul M. Schwartz, Geoffrey R. Stone, and John Yoo.
national security, civil liberties, terrorism, individual rights, Supreme Court
Abstract: The Civil War raised fundamental issues about the American constitutional system. The first half of this book probes the disputes about states' rights that led up to the Civil War. The discussion begins with early understandings of sovereignty, then considers the Marshall Court and the nullification movement, and ends with a discussion of the constitutional and moral legitimacy of secession. The second half of the book focuses on the difficult constitutional problems that arose during the war itself, including Lincoln's aggressive use of executive power, civil liberties issues such as the use of military tribunals, and the general stress placed on the rule of law by wartime conditions. Much of the book is purely historical, but it also considers how Lincoln and his era can illuminate - and in turn be illuminated by - modern constitutional debates.
Constitutional Law, Executive Power, Military Powers, Rule of Law
Abstract: This book criticizes the trend toward foundationalism in recent constitutional scholarship. We examine in detail the work of six important figures: Robert Bork, Antonin Scalia, Richard Epstein, Bruce Ackerman, Akhil Amar, and Ronald Dworkin. Despite their very different political stances and conflicting views about substantive constitutional issues, these six writers have much in common. All of them claim the support of the original understanding; all of them argue for major changes in conventional constitutional analysis; and all of them purport to provide a determinate methodology for resolving constitutional disputes. Furthermore, all of them seek to identify a single value such as individual rights or majority rule as the foundation of their constitutional theory. We find their theories unsatisfactory in terms of normative and historical support. We also doubt that the theories could be successfully implemented by judges or other constitutional decision makers. Each of these theorists is attempting to invent a new constitutional methodology - one sufficiently principled and normatively weighty to justify overruling legislative decisions. In different ways, each attempts to escape the countermajoritarian difficulty. In our view, however, the countermajoritarian difficulty itself has been blown out of proportion. Judicial review in some form is now widely accepted in democracies and should not be viewed as an aberration in need of special justification. The traditional common law method is muddled and imperfect, but no better substitute is on the horizon. In particular, none of the leading foundationalist theories would be a better fit with the needs of our constitutional democracy. Foundationalism is not valueless as a scholarly strategy, since it can sometimes lead to interesting and useful insights. But foundationalist approaches to constitutional interpretation should not be considered serious candidates for adoption by society.
Constitutional law, judicial review, originalism
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