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Full-Text Articles in Law
Foreword: Rulemaking, Democracy, And Torrents Of E-Mail, Nina A. Mendelson
Foreword: Rulemaking, Democracy, And Torrents Of E-Mail, Nina A. Mendelson
Articles
This Foreword is meant as an initial foray into the question of what agencies should do with mass public comments, particularly on broad questions of policy. Part I discusses the extent to which congressional control, presidential control, and agency procedures themselves can ensure that agency decisions are democratically responsive. In view of shortcomings in both congressional and presidential control, I underscore the need to focus closely on rulemaking procedures as a source of democratic responsiveness. The possibility that agencies may be systematically discounting certain public submissions raises difficulties, and I present some examples. Part II makes a preliminary case that …
Sequential Climate Change Policy, Edward A. Parson, Darshan Karwat
Sequential Climate Change Policy, Edward A. Parson, Darshan Karwat
Articles
Successfully managing global climate change will require a process of sequential, or iterative, decision‐making, whereby policies and other decisions are revised repeatedly over multiple decades in response to changes in scientific knowledge, technological capabilities, or other conditions. Sequential decisions are required by the combined presence of long lags and uncertainty in climate and energy systems. Climate decision studies have most often examined simple cases of sequential decisions, with two decision points at fixed times and initial uncertainties that are resolved at the second decision point. Studies using this formulation initially suggested that increasing uncertainty favors stronger immediate action, while the …
Legal Reasoning And Scientific Reasoning, Phoebe C. Ellsworth
Legal Reasoning And Scientific Reasoning, Phoebe C. Ellsworth
Articles
In my presentation for the 2010 Meador Lectures on Rationality, I chose to compare legal reasoning and scientific reasoning. Both law and science pride themselves on the rationality of their intellectual methods and believe that those methods are designed to analyze questions and reach the correct conclusions by means of reason, free from cognitive or emotional biases. Of course, both law and science often fall short of this ideal at all levels, from the decisions about individual legal cases or scientific studies to the acceptance of general theories. In many ways, the biases that mislead legal and scientific thinkers are …
Super Deference, The Science Obsession, And Judicial Review As Translation Of Agency Science, Emily Hammond Meazell
Super Deference, The Science Obsession, And Judicial Review As Translation Of Agency Science, Emily Hammond Meazell
Michigan Law Review
This Article explores what happens to longstanding remedies for past racial discrimination as conditions change. It shows that Congress and the Supreme Court have responded quite differently to changed conditions when they evaluate such remedies. Congress has generally opted to stay the course, while the Court has been more inclined to view change as cause to terminate a remedy. The Article argues that these very different responses share a defining flaw, namely, they treat existing remedies as fixed until they are terminated. As a result, remedies are either scrapped prematurely or left stagnant despite dramatically changed conditions. The Article seeks …