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Full-Text Articles in Law

Can Nonstatutory Federal Climate Litigation Drive Federal Climate Policy?, David L. Markell Nov 2017

Can Nonstatutory Federal Climate Litigation Drive Federal Climate Policy?, David L. Markell

Scholarly Publications

No abstract provided.


The Long Shadow Of Judicial Review, Mark Seidenfeld Apr 2017

The Long Shadow Of Judicial Review, Mark Seidenfeld

Scholarly Publications

No abstract provided.


The Military-Environmental Complex And The Courts: Comment To Sarah Light, Shi-Ling Hsu Apr 2017

The Military-Environmental Complex And The Courts: Comment To Sarah Light, Shi-Ling Hsu

Scholarly Publications

No abstract provided.


Judicial Review For The Public Lands: Comment To Eric Biber, Shi-Ling Hsu Apr 2017

Judicial Review For The Public Lands: Comment To Eric Biber, Shi-Ling Hsu

Scholarly Publications

No abstract provided.


Carbon Tax Rising, Shi-Ling Hsu Mar 2017

Carbon Tax Rising, Shi-Ling Hsu

Scholarly Publications

No abstract provided.


Technological Innovation, Data Analytics, And Environmental Enforcement, David L. Markell, Robert L. Glicksman, Claire Monteleoni Jan 2017

Technological Innovation, Data Analytics, And Environmental Enforcement, David L. Markell, Robert L. Glicksman, Claire Monteleoni

Scholarly Publications

Technical innovation is ubiquitous in contemporary society and contributes to its extraordinarily dynamic character. Sometimes these innovations have significant effects on the environment or on human health. They may also stimulate efforts to develop second-order technologies to ameliorate those effects. The development of the automobile and its impact on life in the United States and throughout the world is an example. The story of modern environmental regulation more generally includes chapters filled with examples of similar efforts to respond to an enormous array of technological advances.

This Article uses a different lens to consider the role of technological innovation. In ...


Next Generation Compliance, David L. Markell, Robert L. Glicksman Jan 2016

Next Generation Compliance, David L. Markell, Robert L. Glicksman

Scholarly Publications

No abstract provided.


Dynamic Governance In Theory And Application, Part I, David L. Markell, Robert L. Glicksman Jan 2016

Dynamic Governance In Theory And Application, Part I, David L. Markell, Robert L. Glicksman

Scholarly Publications

This Article is the first of two that grapple with a central policy challenge facing the administrative state: how to govern in times of dynamic change when challenges, and opportunities to address them, are both shifting rapidly. It suggests that, conceptually, process design that is likely to produce effective regulatory governance requires attention to three key distinct but interrelated variables: (1) the actors who are or should be involved in program implementation in different capacities; (2) the mechanisms (legal and otherwise) available to promote good governance; and (3) the tools available to advance desired results. To demonstrate the value of ...


Emerging Legal And Institutional Responses To Sea-Level Rise In Florida And Beyond, David L. Markell Jan 2016

Emerging Legal And Institutional Responses To Sea-Level Rise In Florida And Beyond, David L. Markell

Scholarly Publications

No abstract provided.


Revising International Law: A Liberal Account Of Natural Resources, Fernando R. Tesón Dec 2015

Revising International Law: A Liberal Account Of Natural Resources, Fernando R. Tesón

Scholarly Publications

In this Article, I defend the view that natural resources originally belong to individuals who have legitimately established private property claims over them. Natural resources do not belong to a collective entity such as the people or the state. My argument is simple. Relying on the Lockean contractarian tradition, I argue that individuals must delegate any resource controlled by the state. This is because all powers of the state are, morally, delegated powers. A group's claims over natural resources is entirely derivative of the original claims of its members. Only individuals can originally appropriate natural resources; only they have ...


Scale Economies, Scale Externalities: Hog Farming And The Changing American Agricultural Industry, Shi-Ling Hsu Jan 2015

Scale Economies, Scale Externalities: Hog Farming And The Changing American Agricultural Industry, Shi-Ling Hsu

Scholarly Publications

American agriculture is inexorably concentrating into the hands of a small number of large conglomerates. Expanding farms pursuing scale economies would normally have to abide by a system of environmental and other laws that would, in theory, require farms to account for negative externalities. If those laws were observed and enforced, they would help strike a balance between the greater profitability and the larger externalities of scaling up. But these laws are not widely observed nor rigorously enforced, which upsets this balance and gives large-scale farms a cost advantage while insulating them from corresponding responsibilities.

Perhaps nowhere in agriculture is ...


A Holistic View Of Agency Enforcement, David L. Markell, Robert L. Glicksman Dec 2014

A Holistic View Of Agency Enforcement, David L. Markell, Robert L. Glicksman

Scholarly Publications

The law review literature has long recognized that effective enforcement is an essential component of effective regulation. Yet much of the literature focuses on one aspect of the enforcement challenge or another. For example, the underlying theory about optimal levels of enforcement has received considerable attention, as have topics such as the relative merits of using deterrence-based versus cooperation-based approaches and the use of citizen suits. The purpose of this Article is to consider agencies’ enforcement and compliance promotion function holistically.

This Article proposes a three-layered conceptual framework for considering options for structuring the administrative agency enforcement and compliance promotion ...


Introduction: Environmental Law Without Congress, Shi-Ling Hsu Oct 2014

Introduction: Environmental Law Without Congress, Shi-Ling Hsu

Scholarly Publications

No abstract provided.


The Accidental Postmodernists: A New Era Of Skepticism In Environmental Law, Shi-Ling Hsu Sep 2014

The Accidental Postmodernists: A New Era Of Skepticism In Environmental Law, Shi-Ling Hsu

Scholarly Publications

No abstract provided.


Climate Change Regulation And Prediction Markets, Shi-Ling Hsu Jul 2014

Climate Change Regulation And Prediction Markets, Shi-Ling Hsu

Scholarly Publications

No abstract provided.


Capital Rigidities, Latent Externalities, Shi-Ling Hsu Apr 2014

Capital Rigidities, Latent Externalities, Shi-Ling Hsu

Scholarly Publications

Capital, one of two fundamental inputs to production, is critical to economic growth. As such, legal rules and institutions generally seek to create more of it, and they also seek to protect existing capital from policy changes. However, capital is often durable, and during its natural life, information may emerge pointing to negative externalities resulting from operation of that capital. Legal rules and institutions, in seeking to stimulate and sustain economic growth by promoting and protecting capital, thus tend to induce the creation of excess capital. This abundance of capital creates excess resistance to new regulation or policy reform, as ...


Epa Enforcement: A Heightened Emphasis On Mitigation Relief, David Markell Mar 2014

Epa Enforcement: A Heightened Emphasis On Mitigation Relief, David Markell

Scholarly Publications

No abstract provided.


International Trade And Investment Law And Carbon Management Technologies, Shi-Ling Hsu, Nigel Bankes, Anatlole Boute, Steve Charnovitz, Sarah Mccalla, Nicholas Rivers, Elizabeth Whitsitt Jul 2013

International Trade And Investment Law And Carbon Management Technologies, Shi-Ling Hsu, Nigel Bankes, Anatlole Boute, Steve Charnovitz, Sarah Mccalla, Nicholas Rivers, Elizabeth Whitsitt

Scholarly Publications

Reducing emissions of greenhouse gases will require the developing carbon management technologies that are not currently available or that are not currently cost-effective. While market mechanisms, such as carbon pricing, must play a central role in stimulating the development of these technologies, governmental policy aimed at fostering carbon management technologies and lowering their costs must also play a part. Both types of policies will form part of an optimal greenhouse gas control portfolio. This article develops a framework of international trade and investment law insofar as they may affect carbon management technologies. While it is commonly perceived that international trade ...


A Conservative Approach To Environmental Law: Be Data Driven, Shi-Ling Hsu Apr 2013

A Conservative Approach To Environmental Law: Be Data Driven, Shi-Ling Hsu

Scholarly Publications

No abstract provided.


A Game-Theoretic Model Of International Climate Negotiations, Shi-Ling Hsu Jan 2013

A Game-Theoretic Model Of International Climate Negotiations, Shi-Ling Hsu

Scholarly Publications

No abstract provided.


Urban Energy, Hannah J. Wiseman Jan 2013

Urban Energy, Hannah J. Wiseman

Scholarly Publications

Growing domestic energy development—the extraction of fuels and construction of electricity generation facilities—poses new challenges to a country accustomed to importing much of its energy. As has always been the case, fuel in the form of oil, gas, sunlight, wind, water, or other energy sources must be extracted wherever it happens to be found. Compounding this challenge is the fact that some of our most abundant remaining energy sources exist in low concentrations and are widely distributed. As we tap these sources in ever more numerous locations, energy development bumps up against certain human population centers. The City ...


Community-Scale Renewable Energy, Hannah J. Wiseman, Sara C. Bronin Jan 2013

Community-Scale Renewable Energy, Hannah J. Wiseman, Sara C. Bronin

Scholarly Publications

No abstract provided.


The Private Role In Public Fracturing Disclosure And Regulation, Hannah J. Wiseman Jan 2013

The Private Role In Public Fracturing Disclosure And Regulation, Hannah J. Wiseman

Scholarly Publications

Abstract: Recent domestic growth in oil and gas natural gas production from shales and sandstones called “tight” formations—largely enabled by a modified technology called slickwater hydraulic fracturing—has driven both economic growth and environmental concerns. Public concerns have often focused on the chemicals used in the fracturing process, yet federal regulations requiring disclosure of chemicals are weak. In the midst of initial “threats” of federal intervention, industry—along with state regulators—developed a website that enabled chemical disclosure. State regulations later mandated disclosure through this website, or allowed it as one option within a mandatory disclosure regime. Independently, gas ...


Administrative Proxies For Judicial Review: Building Legitimacy From The Inside-Out, David L. Markell, Emily Hammond Jan 2013

Administrative Proxies For Judicial Review: Building Legitimacy From The Inside-Out, David L. Markell, Emily Hammond

Scholarly Publications

Judicial review is considered an indispensable legitimizer of the administrative state. Not only is it a hallmark feature of the Administrative Procedure Act (“APA”), but the various standards of review reinforce democratic norms, promote accountability, and act as a check against arbitrariness. Unreviewable agency actions, therefore, must find their legitimacy elsewhere. This article evaluates the promise of “inside-out” legitimacy as an alternative or complement to judicial review. We theorize, based on insights from the administrative law and procedural justice literatures, that administrative process design can do much to advance legitimacy without the need to rely on judicial review to check ...


Risk And Response In Fracturing Policy, Hannah J. Wiseman Jan 2013

Risk And Response In Fracturing Policy, Hannah J. Wiseman

Scholarly Publications

An oil and gas extraction technique called hydraulic fracturing (also called fracing, fracking, or hydrofracking) has swept the country and has raised the stakes of the energy policy debate. As operators drill thousands of new wells and inject water and chemicals down these wells in order to fracture underground shale and tight sandstone formations, concerned citizens’ groups and the media have pointed to flaming tap water and have worried about chemical contamination; at the same time, industry representatives and many state regulators have sworn that the practice has never contaminated groundwater. The outpouring of attention to injection—just one stage ...


Evaluating Citizen Petition Procedures: Lessons From An Analysis Of The Nafta Environmental Commission, David L. Markell, John H. Knox Jul 2012

Evaluating Citizen Petition Procedures: Lessons From An Analysis Of The Nafta Environmental Commission, David L. Markell, John H. Knox

Scholarly Publications

The NAFTA Environmental Commission’s citizen petition process is an important experiment in “new governance” because of its emphasis on citizen participation, accountability, and transparency as strategies to enhance government legitimacy and improve government performance. Its focus on promoting compliance and enforcement adds to its importance for those interested in those central aspects of the regulatory process. The procedure has had a rocky start in many respects, although there are signs that in some cases it has had a positive impact.

This Article sets forth what we perceive to be the promise of the process, the pitfalls that have undermined ...


Fracturing Regulation Applied, Hannah J. Wiseman Apr 2012

Fracturing Regulation Applied, Hannah J. Wiseman

Scholarly Publications

No abstract provided.


Climate Change And The Roles Of Land Use And Energy Law: An Introduction, David Markell Apr 2012

Climate Change And The Roles Of Land Use And Energy Law: An Introduction, David Markell

Scholarly Publications

No abstract provided.


An Empirical Assessment Of Climate Change In The Courts: A New Jurisprudence Or Business As Usual?, David Markell, J. B. Ruhl Jan 2012

An Empirical Assessment Of Climate Change In The Courts: A New Jurisprudence Or Business As Usual?, David Markell, J. B. Ruhl

Scholarly Publications

While legal scholarship seeking to assess the impact of litigation on the direction of climate change policy is abundant and growing in leaps and bounds, to date it has relied on and examined only small, isolated pieces of the vast litigation landscape. Without a complete picture of what has and has not been within the sweep of climate change litigation, it is difficult to offer a robust evaluation of the past, present, and future of climate change jurisprudence. Based on a comprehensive empirical study of the status of all (201) climate change litigation matters filed through 2010, this Article is ...


Hydraulic Fracturing And Information Forcing, Hannah J. Wiseman Jan 2012

Hydraulic Fracturing And Information Forcing, Hannah J. Wiseman

Scholarly Publications

No abstract provided.