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Articles 1 - 8 of 8
Full-Text Articles in Law
Must The States Discriminate Against Their Own Producers Under The Dormant Commerce Clause?, David M. Driesen
Must The States Discriminate Against Their Own Producers Under The Dormant Commerce Clause?, David M. Driesen
David M Driesen
This article works out the implications of an insight mentioned, but not developed thoroughly, in the literature on free trade law: A polity that regulates its own producers without regulating outside producers serving that polity discriminates against its own producers. This gives rise to a question, should laws serving free trade values require polities to discriminate against their own producers? The dormant Commerce Clause’s extraterritoriality doctrine—which prohibits regulating wholly outside the enacting state’s borders—seems to require discrimination against the enacting state’s producers. Federal courts have recently used this doctrine to strike down state laws addressing climate disruption and regulating the …
Complexity And Simplicity In Law: A Review Essay (Cass R. Sunstein, Simpler: The Future Of Government (2003)), David M. Driesen
Complexity And Simplicity In Law: A Review Essay (Cass R. Sunstein, Simpler: The Future Of Government (2003)), David M. Driesen
David M Driesen
This essay discusses Cass Sunstein’s book, Simpler: The Future of Government, in order to advance our understanding of the concepts of complex and simple law. Many writers identify complexity with uncertainty and high cost. This essay argues that complexity bears no fixed relationship to costs or benefits. It also shows that complexity’s relationship to uncertainty is so ambiguous that it is profitable to treat complexity and uncertainty as separate concepts. It develops useful separate concepts of legal and compliance complexity that will aid efforts to simplify law, like the one Sunstein claims to have embarked upon. It also argues that …
Complexity And Simplicity In Law: A Review Essay (Cass R. Sunstein, Simpler 2013)), David M. Driesen
Complexity And Simplicity In Law: A Review Essay (Cass R. Sunstein, Simpler 2013)), David M. Driesen
David M Driesen
This essay discusses Cass Sunstein’s book, Simpler, in order to advance our understanding of the concepts of complex and simple law. Many writers identify complexity with uncertainty and high cost. This essay argues that complexity bears no fixed relationship to costs or benefits. It also shows that complexity’s relationship to uncertainty is so ambiguous that it is profitable to treat complexity and uncertainty as separate concepts. It develops useful separate concepts of legal and compliance complexity that will aid efforts to simplify law, like the one Sunstein claims to have embarked upon. It also argues that complexity is a hallmark …
Putting A Price On Carbon: The Metaphor, David M. Driesen
Putting A Price On Carbon: The Metaphor, David M. Driesen
David M Driesen
This Essay analyzes the characterization of both pollution taxes and so-called cap-and-trade programs addressing greenhouse gas emissions as policies that “put a price on carbon,” a characterization that has come to dominate both policy discussion and much modern scholarship on environmental instrument choice. It shows that the rationale for characterizing cap-and-trade— a quantitative rather than a pricing mechanism— as putting a price on carbon suggests that analysts should likewise treat traditional regulation as a mechanism putting a price on carbon. Treating “market-based mechanisms” as uniquely putting a price on carbon reflects and perpetuates a tendency to see markets and government …
Cost-Benefit Analysis And The Precautionary Principle: Can They Be Reconciled?, David M. Driesen
Cost-Benefit Analysis And The Precautionary Principle: Can They Be Reconciled?, David M. Driesen
David M Driesen
Conventional wisdom teaches us that cost-benefit analysis (CBA) and the precautionary principle conflict. CBA proponents consider precaution incoherent and irrational, while precautionary principle fans see CBA as a threat to environmental protection. Both sides, however, see these two concepts as conflicting. This Article questions the conventional view. It finds no conflict between the precautionary principle, properly understood, and the mere idea of taking costs and benefits into account in choosing environmental standards. The reasoning underlying this conclusion illuminates both concepts. Having revealed the theoretical possibility of precautionary CBA, it uses a case study of the climate disruption issue to begin …
Purposeless Construction, David M. Driesen
Purposeless Construction, David M. Driesen
David M Driesen
This Article critiques the Supreme Court’s tendency to embrace “purposeless construction”— statutory construction that ignores legislation’’ underlying goals. It constructs a new democratic theory supporting purposeful construction, defined as an approach to construction that favors construction of ambiguous text to advance a statute’s underlying goal. That theory maintains that statutory goals, especially those set out in the legislative text or frequently proclaimed in public, tend to reflect public values to a greater extent than other statutory provisions. Politicians carefully choose goals for statutes that “sell” the statute to the public. In order to do this, they must announce goals for …
Job Loss And The Incohernet Expansion Of Cost-Benefit Analysis, David M. Driesen
Job Loss And The Incohernet Expansion Of Cost-Benefit Analysis, David M. Driesen
David M Driesen
This piece discusses the question of whether regulatory agencies should quantify job loss stemming from government regulation for purposes of cost-benefit analysis. It argues that doing so produces biased analysis through double counting of regulatory costs and asymmetric analysis. It also argues that the dollar value of job loss defies quantification.
Contract Law's Inefficiency, David M. Driesen
Contract Law's Inefficiency, David M. Driesen
David M Driesen
Neoclassical economic theory seems to aptly characterize contract law’s essence. Contracts enable two parties to reach a mutually beneficial agreement, thereby facilitating economically efficient transactions. It would seem to follow that the achievement of economic efficiency serves as contract law’s major goal. This article, however, examines an alternative hypothesis, that contract law is about enforcing inefficient bargains in order to provide enough security to facilitate cooperation among economic actors over long periods of time. On this account, contract law manages change over time, rather than achieves static efficiency. While recognizing that parties execute contracts in order to realize an efficient …