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Full-Text Articles in Law
Two Cheers For Feasible Regulation: A Modest Response To Masur And Posner, David M. Driesen
Two Cheers For Feasible Regulation: A Modest Response To Masur And Posner, David M. Driesen
David M Driesen
This response to Masur and Posner's "Against Feasibility" argues that the feasibility principle has normative and practical advantages over cost-benefit analysis. Normatively, it shows that the happiness literature's suggestion that jobs may be much more important than consumption to welfare supports the feasibility principle's emphasis on maximizing pollution reduction without producing widespread plant shutdowns. It shows that the practical problems Masur and Posner associate with feasibility analysis arise under cost-benefit analysis as well.
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 for 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 …
Capping Carbon, David M. Driesen
Capping Carbon, David M. Driesen
David M Driesen
This article addresses the problem of how to set caps for a cap-and-trade program, a key problem in pending legislation addressing global climate disruption. Previous scholarship on emissions trading programs focuses overwhelmingly on trading’s advantages and sometimes wrongly portrays environmental improvement as an automatic byproduct of adopting a cap-and-trade approach. A trading program’s success, however, depends critically upon timely and effective cap setting. This article shows that often regulators have employed a best available technology (BAT) approach to cap setting for trading programs, i.e., setting the cap at a level that regulated polluters can achieve with government-identified technology. This descriptive …