Law Commons^™

What's Property Got To Do With It?, David M. Driesen

College of Law - Faculty Scholarship

This essay reviews Daniel Cole's "Pollution & Property," a recent book on property rights regimes for pollution control. It questions the utility of property rights typologies as a means of understanding pollution control regimes. The review provides a detailed analysis of the shift of rights that occurs in going from a traditional regulatory program to an emissions trading program. It finds that the shift does not create a fundamentally different property regime and explains precisely what changes. This analysis also explains the meaning of calls to perfect property rights in this context. The review concludes that Professor Cole's book does …

The Functions Of Transaction Costs: Rethinking Transaction Cost Minimization In A World Of Friction, David M. Driesen, Shubha Ghosh

College of Law - Faculty Scholarship

This article critically examines the goal of minimizing transaction costs, including the costs of legal decision-making. This goal permeates the law and economics literature and has profoundly influenced public policy. While most transaction cost scholarship has focused upon private law, this influence has been especially pervasive in public law, where it has contributed to a variety of legal changes aimed at reducing public transaction costs, often through privatization.

We argue that transaction costs perform useful functions. They frequently enable those engaging in transactions to obtain information needed to correct for information asymmetries or inadequate information. They facilitate efficient transactions, allow …

Standing For Nothing: The Paradox Of Demanding Concrete Context For Formalist Adjudication, David M. Driesen

College of Law - Faculty Scholarship

This article examines a paradox found in public law cases. While justiciability doctrines aim to provide concrete context for adjudication of public law questions by insisting upon individual injury, often the Supreme Court ignores the litigants' injuries when it turns to the merits of cases. Examination of this paradox leads to a fuller appreciation of the structure and nature of public law. In particular, it sheds light on a recent debate in leading law reviews about whether constitutional litigation should be seen as about individual rights or the validity of legal rules. It also raises serious questions about the modern …

Design, Trading, And Innovation, David M. Driesen

College of Law - Faculty Scholarship

This article questions the conventional theory purporting to establish that environmental benefit trading encourages innovation better than comparable traditional regulation. It argues that the induced innovation hypothesis, that high costs encourage innovation, suggests that trading would lessen incentives for innovation by lowering the cost of complying with conventional approaches. The conventional theory relies upon the incentive emissions trading creates for polluters to make additional reductions in order to sell credits. But emissions trading also creates incentives for half of the pollution sources (the credit buyers) to make less reductions than they would under a traditional regulation. By focusing analysis only …

Distributing The Costs Of Environmental, Health, And Safety Protection: The Feasability Principle, Cost-Benefit Analysis, And Regulatory Reform, David M. Driesen

College of Law - Faculty Scholarship

This article offers a normative theory justifying the feasability principle found in many environmental statutes. It then uses this theory to shine light on the regulatory reform debate. The feasability principle precludes widespread plant shutdowns while maximizing the stringency of regulation that does not have this outcome. The feasability principle provides meaningful guidance regarding both maximum and minimum stringency and a reasonable democratically chosen response to distributional concerns. Pollution's tendency to concentrate severe harms upon randomly selected pollution victims justifies the stringency of this approach. Normally, cost concerns cannot justify failure to protect people from death, illness, and ecological destruction. …

Genes, Parents And Assisted Reproductive Technologies: Mistakes, Race, Sex, And Law, Leslie Bender

College of Law - Faculty Scholarship

In December 1998 a woman gave birth to twins, one of whom was European-American and one of whom was African-American, as a result of an embryo mix-up that occurred at an infertility clinic where she was receiving treatments. The genetic progenitors of the mistakenly implanted embryo challenged the birth mother's rights to one of the twins. They won their New York state court lawsuit, ultimately preventing the birth mother from even having visitation with her son. This essay examines the impact of assisted reproductive technologies (ARTs) mistakes on the legal analysis of parenthood (in particular maternity), offers a systematic critique …

Ideas, Artifacts, And Facilities: Information As A Common-Pool Resource, Charlotte Hess, Elinor Ostrom

Libraries' and Librarians' Publications

"The goal of this paper is to summarize the lessons learned from a large body of international, interdisciplinary research on common-pool resources (CPRs) in the past 25 years and consider its usefulness in the analysis of scholarly information as a resource. We will suggest ways in which the study of the governance and management of common-pool resources can be applied to the analysis of information and 'the intellectual public domain.' The complexity of the issues is enormous for many reasons: the vast number of players, multiple conflicting interests, rapid changes of technology, the general lack of understanding of digital technologies, …