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Minding The Gaps: Fairness, Welfare, And The Constitutive Structure Of Distributive Assessment, Robert C. Hockett
Minding The Gaps: Fairness, Welfare, And The Constitutive Structure Of Distributive Assessment, Robert C. Hockett
Robert C. Hockett
Despite over a century’s disputation and attendant opportunity for clarification, the field of inquiry now loosely labeled “welfare economics” (WE) remains surprisingly prone to foundational confusions. The same holds of work done by many practitioners of WE’s influential offshoot, normative “law and economics” (LE). A conspicuous contemporary case of confusion turns up in recent discussion concerning “fairness versus welfare.” The very naming of this putative dispute signals a crude category error. “Welfare” denotes a proposed object of distribution. “Fairness” describes and appropriate pattern of distribution. Welfare itself is distributed fairly or unfairly. “Fairness versus welfare” is analytically on all fours …
Enhancing The Use Of Negotiated Rulemaking By The U.S. Department Of Education, Jeffrey Lubbers
Enhancing The Use Of Negotiated Rulemaking By The U.S. Department Of Education, Jeffrey Lubbers
Jeffrey Lubbers
Federalism And The Rise Of Renewable Energy: Preserving State And Local Voices In The Green Energy Revolution, Daniel Lyons
Federalism And The Rise Of Renewable Energy: Preserving State And Local Voices In The Green Energy Revolution, Daniel Lyons
Daniel Lyons
The rise of renewable energy has disrupted the traditional regulatory structure governing electricity. Unlike traditional fossil fuel power plants, wind and solar facilities are geographically constrained: they exist where the wind blows and the sun shines. Large-scale renewable energy is more likely to flow interstate, from resource-rich prairie and Southwestern states to energy-hungry population centers elsewhere. The difficulties of coordinating interstate electricity policies have led some to call for greater preemption of the states’ traditional duties as chief regulators of the electricity industry. But while preemption would eliminate some state-level roadblocks to interstate cooperation, it would sacrifice many of the …
Applying Administrative Law Principles To Hydraulic Fracturing, Joel M. Pratt
Applying Administrative Law Principles To Hydraulic Fracturing, Joel M. Pratt
Joel M Pratt
Because fracking regulators and industry need both legal clarity and the ability to react to new information, courts should apply principles of administrative deference to resolve conflicts between state and local fracking regulations.Under these principles, courts weigh expert agency decision making more heavily when the agency has acted reasonably. When faced with a conflict between state and local fracking laws, courts should adopt administrative principles and privilege expert agency regulations rather than engage in an independent judicial inquiry. Part I provides background on fracking and argues that states are in the best position to regulate the practice. Part II then …
Foreword — Chevron At 30: Looking Back And Looking Forward, Peter M. Shane, Christopher J. Walker
Foreword — Chevron At 30: Looking Back And Looking Forward, Peter M. Shane, Christopher J. Walker
Christopher J. Walker
This Foreword introduces a Fordham Law Review symposium held in March 2014 to mark the thirtieth anniversary of Chevron U.S.A. v. Natural Resources Defense Council. The most-cited administrative-law decision of all time, Chevron has sparked thirty years of scholarly discussion concerning what Chevron deference means, when (or even if) it should apply, and what impact it has had on the administrative state. Part I of the Foreword discusses the symposium contributions that address Chevron’s scope and application, especially in light of City of Arlington v. FCC. Part II introduces the contributions that explore empirically and theoretically Chevron’s impact outside of …
Signing Statements And Statutory Interpretation In The Bush Administration, Neil Kinkopf
Signing Statements And Statutory Interpretation In The Bush Administration, Neil Kinkopf
Neil J. Kinkopf
No abstract provided.
Sustaining An Unsustainable Fuel Source: How Lifecycle Greenhouse Gas Limitations Can Improve The Sustainability Of The Tar Oil Industry, Brittany Debord
Sustaining An Unsustainable Fuel Source: How Lifecycle Greenhouse Gas Limitations Can Improve The Sustainability Of The Tar Oil Industry, Brittany Debord
Brittany DeBord
The United States seeks to achieve energy security and self-sufficiency by acquiring energy from Canadian tar sands and promoting a domestic tar sands industry. However, support for this industry is inconsistent with the greenhouse gas reduction policies of the Energy Independence and Security Act and the North American Agreement on Environmental Cooperation, since tar oil extraction creates three times more carbon emissions than conventional oil extraction. Legislation limiting lifecycle greenhouse gas emissions has already been implemented through the Renewable Fuel Standard Program in response to concerns that plant-based fuel production leads to greater carbon emissions than intended. Since the lifecycle …
One Hundred Nos: An Empirical Analysis Of The First 100 Denials Of Institution For Inter Partes And Covered Business Method Patent Reviews, Jonathan R. K. Stroud, Jarrad Wood
One Hundred Nos: An Empirical Analysis Of The First 100 Denials Of Institution For Inter Partes And Covered Business Method Patent Reviews, Jonathan R. K. Stroud, Jarrad Wood
Jonathan R. K. Stroud
Tasked in 2011 with creating three powerful new patent review trial regimes, the U.S. Patent and Trademark Office—through the efforts of their freshly empowered quasi-judicial body, the Patent Trial and Appeals Board—set to creating a fast-paced trial with minimal discovery and maximum efficiency. In the first two years of existence, the proceedings have proved potent, holding unpatentable many of the claims that reach decisions on the merits. Yet a small subsection of petitions never make it past the starting gate, resulting in wasted time and effort on the parts of petitioners—and likely sighs of relief from the rights-holders. Parties on …
Sewer Syndicalism: Worker Self-Management In Public Services, Eric M. Fink
Sewer Syndicalism: Worker Self-Management In Public Services, Eric M. Fink
Eric M Fink
In the late nineteenth and early twentieth centuries, municipal governments in various US cities assumed responsibility for utilities and other services that previously had been privately operated. In the late twentieth century, prompted by fiscal crisis and encouraged by neo-liberal ideology, governments embraced the concept of “privatization,” shifting management and control over public services to private entities.
Despite disagreements over the merits of privatization, both proponents and opponents accept the premise of a fundamental distinction between the “public” and “private” sectors, and between “state” and “market” institutions. A more skeptical view questions the analytical soundness and practical significance of these …
Drones, Henry H. Perritt Jr., Eliot O. Sprague
Drones, Henry H. Perritt Jr., Eliot O. Sprague
Henry H. Perritt, Jr.
Preventative Legislation Ensures Intended Parents Of Gestational Surrogacy Benefits Under The California Family Rights Act, Jennifer Jackson
Preventative Legislation Ensures Intended Parents Of Gestational Surrogacy Benefits Under The California Family Rights Act, Jennifer Jackson
Jennifer Jackson
We live in a rapidly evolving technological age, which now allows parents to enter surrogacy contracts. In such a world, the law often lags in catching up to technology and the ramifications that may ensue. This paper focuses on the California Family Rights Act (CFRA) and the consequences it has on surrogacy agreements and the rights intended parents. While the CFRA includes broad language as to the definition of a “child,” case law shows that surrogate born children may be unintentionally excluded. As a result, this paper analyzes the arguments both for and against revision to the CFRA and concludes …
Building A Framework For Governance: Retrospective Review And Rulemaking Petitions, Reeve T. Bull
Building A Framework For Governance: Retrospective Review And Rulemaking Petitions, Reeve T. Bull
Reeve T Bull
Of the various regulatory reform efforts advocated by legal scholars and politicians in recent years, perhaps none holds greater promise than retrospective review of agency regulations, whereby agencies revisit existing rules to determine whether they remain appropriate in light of changed circumstances. The Obama Administration has embraced the principles of retrospective review, issuing three executive orders on the subject, and it has trumpeted billions of dollars in economic savings resulting from those efforts. Nevertheless, numerous scholars have criticized these initiatives, contending that agencies reviewing their own regulations are unlikely to repeal or fundamentally overhaul existing rules. This article addresses the …
The Eye Of The Beholder: Participation And Impact In Telecommunications (De)Regulation, Dorit Reiss
The Eye Of The Beholder: Participation And Impact In Telecommunications (De)Regulation, Dorit Reiss
Dorit R. Reiss
The California Public Utilities Commission addressed both pricing deregulation and universal service in telecommunications during the last decade. Both decisions had a similar cast of characters, and similarly elaborate processes. In relation to price deregulation, the utilities positions were accepted on every issue addressed; in relation to universal service, consumer organizations’ positions were accepted in about 60% of the issues. This article tells the story of how those decisions were made, and examines the reasons for the difference in impact. The article examines and reject an explanation of capture; accepts in part a focus on the influence of the commissioner …
Relying On Government In Comparison: What Should The United States Learn From Abroad In Relation To Administrative Estoppel?, Dorit R. Reiss
Relying On Government In Comparison: What Should The United States Learn From Abroad In Relation To Administrative Estoppel?, Dorit R. Reiss
Dorit R. Reiss
The United States’ Supreme Court had never upheld a claim of estoppel against the government. A citizen relying on government’s advice does that at her peril: if the government was wrong, if it misrepresented the statute or interpreted it wrongly, it can (by some interpretations, must) go back on its word and the citizen has no recourse. The Supreme Court provided many arguments for that position, but the core of them involves protection of what the Europeans refer to as “the principle of legality”: the executive does not have the ability to waive requirements from primary legislation or deviate from …
The Scored Society: Due Process For Automated Predictions, Danielle Keats Citron, Frank A. Pasquale
The Scored Society: Due Process For Automated Predictions, Danielle Keats Citron, Frank A. Pasquale
Danielle Keats Citron
Big Data is increasingly mined to rank and rate individuals. Predictive algorithms assess whether we are good credit risks, desirable employees, reliable tenants, valuable customers—or deadbeats, shirkers, menaces, and “wastes of time.” Crucial opportunities are on the line, including the ability to obtain loans, work, housing, and insurance. Though automated scoring is pervasive and consequential, it is also opaque and lacking oversight. In one area where regulation does prevail—credit—the law focuses on credit history, not the derivation of scores from data.
Procedural regularity is essential for those stigmatized by “artificially intelligent” scoring systems. The American due process tradition should inform …
Burden Of Decision: Judging Presidential Disability Under The Twenty-Fifth Amendment, Daniel J.T. Schuker
Burden Of Decision: Judging Presidential Disability Under The Twenty-Fifth Amendment, Daniel J.T. Schuker
Daniel Schuker
This Article offers a new approach to understanding, classifying, and assessing cases of presidential disability. In constitutional terms, “presidential disability” refers to any condition that renders the President of the United States “unable to discharge the powers and duties” of the office. Remarkably, the existing legal infrastructure under the Twenty-Fifth Amendment provides no guidance for determining when a President has become constitutionally disabled. Nor does it explain when the President (under Section 3) should initiate the succession process, and when the Vice President and other senior officials (under Section 4) should take the lead instead. During crises of presidential disability, …
Sender Side Transmission Rules For The Internet, Tejas N. Narechania, Tim Wu
Sender Side Transmission Rules For The Internet, Tejas N. Narechania, Tim Wu
Tejas N. Narechania