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Full-Text Articles in Law
Standing For Nothing: The Paradox Of Demanding Concrete Context For Formalist Adjudication, David M. Driesen
Standing For Nothing: The Paradox Of Demanding Concrete Context For Formalist Adjudication, David M. Driesen
College of Law - Faculty Scholarship
This article examines a paradox found in public law cases. While justiciability doctrines aim to provide concrete context for adjudication of public law questions by insisting upon individual injury, often the Supreme Court ignores the litigants' injuries when it turns to the merits of cases. Examination of this paradox leads to a fuller appreciation of the structure and nature of public law. In particular, it sheds light on a recent debate in leading law reviews about whether constitutional litigation should be seen as about individual rights or the validity of legal rules. It also raises serious questions about the modern …
Distributing The Costs Of Environmental, Health, And Safety Protection: The Feasability Principle, Cost-Benefit Analysis, And Regulatory Reform, David M. Driesen
Distributing The Costs Of Environmental, Health, And Safety Protection: The Feasability Principle, Cost-Benefit Analysis, And Regulatory Reform, David M. Driesen
College of Law - Faculty Scholarship
This article offers a normative theory justifying the feasability principle found in many environmental statutes. It then uses this theory to shine light on the regulatory reform debate. The feasability principle precludes widespread plant shutdowns while maximizing the stringency of regulation that does not have this outcome. The feasability principle provides meaningful guidance regarding both maximum and minimum stringency and a reasonable democratically chosen response to distributional concerns. Pollution's tendency to concentrate severe harms upon randomly selected pollution victims justifies the stringency of this approach. Normally, cost concerns cannot justify failure to protect people from death, illness, and ecological destruction. …