Law Commons^™

Bad News For Professor Koppelman: The Incidental Unconstitutionality Of The Individual Mandate, Gary S. Lawson, David Kopel

Faculty Scholarship

In "Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform," Professor Andrew Koppelman concludes that the individual mandate in the Patient Protection and Affordable Care Act (PPACA) is constitutionally authorized as a law "necessary and proper for carrying into Execution" other aspects of the PPACA. However, the Necessary and Proper Clause rather plainly does not authorize the individual mandate.

The Necessary and Proper Clause incorporates basic norms drawn from eighteenth-century agency law, administrative law, and corporate law. From agency law, the clause embodies the venerable doctrine of principals and incidents: a law enacted under the clause must …

Lessons From The North Sea: Should "Safety Cases" Come To America?, Rena I. Steinzor

Faculty Scholarship

The catastrophic oil spill in the Gulf of Mexico last spring and summer has triggered an intense search for more effective regulatory methods that would prevent such disasters. The new Bureau of Ocean Energy Management, Regulation, and Enforcement (BOEMRE) is under pressure to adopt the British “safety case” system, which requires the preparation of a facility-specific plan that is typically several hundred pages long. This system is supposed to inculcate a “safety culture” within companies that operate offshore in the British portion of the North Sea because it overcomes a “box-ticking” mentality and constitutes “bottom up” implementation of safety measures. …

Law In The Time Of Cholera: Teaching Disaster Law As A Research Course, Neal R. Axton

Faculty Scholarship

Disaster law is fun to teach but it has a serious purpose. Emergencies will inevitably arise but how society responds to them will determine whether or not they become full-blown disasters. Training law students to adapt to dynamic situations will give them the skills they need in a world facing global warming, resource depletion, and a burgeoning population. By creating a more robust legal system, we can create a more resilient society.

Originally published in the May 2011 issue of AALL Spectrum.

Adaptive Regulation In The Amoral Bazaar, Lawrence G. Baxter

Faculty Scholarship

Twelfth Oliver Schreiner Memorial Lecture,delivered on 20 October 2010 at the School of Law, University of the Witwatersrand, Johannesburg, South Africa. Many gradual changes in science, law and society are crystallizing to shape a significant transformation in administrative law. The doctrinal framework within which Justice Schreiner himself attempted to modernize how law should regulate government and private economic activity seems from our vantage point to be quite antiquated. In explaining why, my examples will come from the world of financial services, but they could easily be found anywhere in the area of law and regulation. First I will outline the …

Common Law And Statute Law In Administrative Law, Jack M. Beermann

Faculty Scholarship

The largely statutory appearance of U.S. administrative law be surprising in light of the existence of the federal A Procedure Act of 1946 (APA).1 The APA, including its a amendments, is a relatively comprehensive guide to much of law in the United States. It contains the procedures agencies to follow in both rulemaking and adjudication and provisions on the availability and scope of judicial review of agency action. As includes open meeting and open file requirements as well as negotiated rulemaking and legislative review of agency rules generally held view that federal courts should not make com should act only …