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Full-Text Articles in Law
Does The Clear And Present Danger Test Survive Cost-Benefit Analysis?, Cass R. Sunstein
Does The Clear And Present Danger Test Survive Cost-Benefit Analysis?, Cass R. Sunstein
Cornell Law Review
Under American regulatory law, the dominant contemporary test involves cost-benefit analysis. The benefits of regulation must justify the costs; if they do, regulation is permissible and even mandatory. Under American free speech law, in sharp contrast, an important contemporary test for the regulation of speech involves "clear and present danger." In general, officials cannot censor or regulate political speech on the ground that the benefits of regulation justify the costs. They may proceed only if the speech is likely to produce imminent lawless action. In principle, it is not simple to explain why the free speech test does not involve …
Did Nepa Drown New Orleans? The Levees, The Blame Game, And The Hazards Of Hindsight, Thomas O. Mcgarity, Douglas A. Kysar
Did Nepa Drown New Orleans? The Levees, The Blame Game, And The Hazards Of Hindsight, Thomas O. Mcgarity, Douglas A. Kysar
Cornell Law Faculty Publications
This Article highlights the hazards of hindsight analysis of the causes of catastrophic events, focusing on theories of why the New Orleans levees failed during Hurricane Katrina in 2005 and particularly on the theory that the levee failures were "caused" by a 1977 National Environmental Policy Act (NEPA) lawsuit that resulted in a temporary injunction against the Army Corps of Engineers' hurricane protection project for New Orleans. The Article provides a detailed historical reconstruction of the decision process that eventuated in the New Orleans storm surge protection system, focusing both on the political and legal factors involved and on the …
It Might Have Been: Risk, Precaution, And Opportunity Costs, Douglas A. Kysar
It Might Have Been: Risk, Precaution, And Opportunity Costs, Douglas A. Kysar
Cornell Law Faculty Publications
This Article, which is part of a larger project on the competing merits of cost-benefit analysis (CBA) and the precautionary principle (PP) as competing policymaking paradigms for environmental, health, and safety regulation, examines one specific plank of the case against the PP: the claim that the principle's ignorance of the opportunity costs of precaution leads to indeterminate or impoverishing policy advice. Because PP defenders emphasize the limits of human knowledge and the frequency of unpleasant surprises from technology and industrial development, they prefer an ex ante stance of precaution whenever a proposed activity meets some threshold possibility of causing severe …
Renewed Judicial Controversy Over Defective Product Design: Toward The Preservation Of An Emerging Consensus, James A. Henderson Jr.
Renewed Judicial Controversy Over Defective Product Design: Toward The Preservation Of An Emerging Consensus, James A. Henderson Jr.
Cornell Law Faculty Publications
No abstract provided.