Digital Commons Network^™

An Assessment Of The Use Of Cost-Benefit Analysis In Regulatory Agency Decision Making, Michael S. Baram

Faculty Scholarship

CONSIDERABLE dissatisfaction has been expressed with the process and results of regulatory agency decision making. Recommendations have been made that the Federal agencies employ rational, "balancing" approaches such as cost-benefit analysis in conducting their standard setting and adjudicatory functions.

This paper examines some current uses of cost-benefit analysis by several agencies in their decision-making processes, and identifies and discusses apparent limitations.

Professor Jones And The Constitution, Henry Paul Monaghan

Faculty Scholarship

Professor Harry Jones's elegant and stimulating Waterman lectures begin on a salutary note. Professor Jones rightly reminds us that, first and foremost, a constitution is not exclusively or primarily a limitation on the exercise of political power, but rather is a charter for its exercise. Accordingly, to view the Constitution as "all brakes and no engine" suggests a serious and fundamental myopia, albeit an understandable one given the popular preoccupation with the Supreme Court's role in vindicating guarantees of civil liberty. But that preoccupation, Professor Jones notes, does more than distort the meaning of the Constitution; it ignores an historically …

Taking Supreme Court Opinions Seriously, Henry Paul Monaghan

Faculty Scholarship

Taking Supreme Court opinions seriously emerged as a topic of discussion at a lunch I attended last year with several Supreme Court law clerks. Somehow we came round to a particular three-judge district court case which I confidently opined was "certain" to be reversed on the basis of principles announced in prior opinions. The clerks were models of politeness and circumspection; never once did they even intimate that the judgment would (by divided vote) be affirmed. But shortly after I had announced my views of that case, one of the clerks began to prod me, asking whether I simply took …

Fairness And Natural Justice In English And South African Law, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.

Compromise Provisions Regarding In Rem Procedures, Joseph Sweeney

Faculty Scholarship

No abstract provided.

Special Report On Endangered Species And New Life Forms: Conversation With A Cockroach, George J. Annas

Faculty Scholarship

On June 15, 1978, the United States Supreme Court ruled that the Endangered Species Act of 1973 required the enjoining of the operation of a virtually completed dam, the Tellico Dam in Tennessee, because of a determination by the Secretary of the Interior that its operation would eradicate the snail darter, an endangered species.

The Many Faces Of Misuse: An Inquiry Into The Emerging Doctrine Of Comparative Causation, Aaron Twerski

Faculty Scholarship

No abstract provided.

A Critique Of The Uniform Product Liability Law -- A Rush To Judgment, Aaron Twerski, A. S. Weinstein

Faculty Scholarship

No abstract provided.

The Ideology Of Advocacy: Procedural Justice And Professional Ethics, William H. Simon

Faculty Scholarship

Conventional morality frowns at the ethics of advocacy. Public opinion disapproves of what it considers the lawyer's most characteristic activities. Popular culture can reconcile itself to him only by pretending that all his clients are virtuous. The lawyer's response takes the form of a dialectic of cynicism and naiveté. On one hand, he sees his more degrading activities as licensed by a fundamental amorality lying beneath conventional morality. On the other hand, he sees his more heartening ones as serving an institutional justice higher than conventional morality. The two moods divide the profession as a whole, and the division can …

Book Reviews, Christopher H. Schroeder

Faculty Scholarship

No abstract provided.

Antitrust Issues In The Regulation Of College Sports, John C. Weistart

Faculty Scholarship

No abstract provided.

Federal Corporate Law, Federalism, And The Federal Courts, Gordon G. Young

Faculty Scholarship

No abstract provided.

Radiation From Nuclear Power Plants: The Need For Congressional Directives, Michael S. Baram

Faculty Scholarship

Congress often responds to a complex problem by empowering an independent regulatory agency to enforce its legislative will. Acknowledging its own lack of knowledge and time, Congress gives the agency a measure of freedom to modify the legal requirements to fit a variety of circumstances that the legislature could not foresee. Ordinarily Congress restrains this autonomy by prescribing general criteria that the agency must consider and objectives that must be met.' These provisions enable Congress to measure the agency's progress and make necessary changes in the law. In addition, competition from other bureaus forces the agency to act vigorously or …

The Fox In The Chicken Coop: The Regulatory Program Of The U.S. Army Corps Of Engineers, Garrett Power

Faculty Scholarship

No abstract provided.

Surface Water Flooding In Urban Areas: Rights And Remedies Under The Common-Enemy Doctrine, James P. George

Faculty Scholarship

Urban flooding is an ever increasing problem as land development intensifies in expanding metropolitan areas. This situation not only has a significant impact on the physical environment, but has substantial legal consequences as well. In urban flooding situations, rivers and streams pose obvious flood threats, but the damaged area is generally restricted to a definable flood plain. Surface water presents a more subtle and pervasive problem; with heavy rainfall or poor drainage, surface runoff can submerge land not ordinarily considered subject to flood damage, further increasing riparian problems as the concentrated runoff finds its way to streams and rivers. Although …

Legislative Note, Metallic Mining And Reclamation In Michigan: Environmental Management As A Gentler Approach, John C. Dernbach

Faculty Scholarship

No abstract provided.

From Defect To Cause To Comparative Fault -- Rethinking Some Product Liability Concepts, Aaron Twerski

Faculty Scholarship

No abstract provided.

Beyond The Shut-Eyed Sentry: Toward A Theoretical View Of Corporate Misconduct And An Effective Legal Response, John C. Coffee Jr.

Faculty Scholarship

Like hard cases, festering scandals make bad law. As public perceptions shift so that conduct once tolerated becomes seen as illicit, political pressures develop that can result in hastily improvised responses by the legal system to fill the newly perceived vacuum. This generalization is advanced to question neither the inalienable right of the public to be scandalized, nor the need for corporate reform, but to approach a highly problematic dilemma: hurried, moralistic responses to a perceived evil often prove not only ineffective, but even counterproductive. The serious student of complex organizations may recognize this assertion as a slightly altered variant …

Control Of Population Densities Surrounding Nuclear Power Plants, A. V. Nero, C. H. Schroeder, W. W.S. Yen

Faculty Scholarship

In view of the requirement that the California Energy Resources Conservation and Development Commission must specify land-use/population density control measures to be used in the vicinity of nuclear power plants being granted land use, the possible forms of such measures are examined. Since these measures must maintain population densities below Nuclear Regulatory Commission criteria, if appropriate, NRC criteria for land use and population densities are given particular attention. In addition, a preliminary comparison of the cost of possible control measures with the reduced potential for damage to the public health and safety is made, yielding the result that control measures …

The Use And Abuse Of Warnings In Products Liability -- Design Defect Litigation Comes Of Age, Aaron Twerski, A. S. Weinstein, W. A. Donaher, H. R. Piehler

Faculty Scholarship

No abstract provided.

The Senegal Valley Authority: A Unique Experiment In International River Basin Planning, Theodore Parnall, Albert E. Utton

Faculty Scholarship

The OMVS (l'Organisation Pour la Mise en Valeur du Fleuve Senegal) is a unique exception to this assessment. The three West African governments of Mali, Mauretania, and Senegal (the "Member States") are engaged in an experiment in international organization that is not only following the most advanced concepts of integrated river basin development,, but which may also afford a lesson in cooperation on a broad scale. This article is intended as a description of the organizational history and structure of the OMVS and a comparison with those of other international river commissions with similar goals.

Class Actions, Richard Briffault

Faculty Scholarship

In 1966, the Supreme Court promulgated an amended rule 23 of the Federal Rules of Civil Procedure, replacing a rule that had remained unchanged since 1938. The 1938 rule, which was understood to reflect Professor Moore's famous distinctions among "true," "hybrid," and "spurious" class suits, proved to be a source of confusion almost from its date of promulgation, and by i966 courts were having great difficulty applying the concepts of joint and several rights the rule relied upon to define cases appropriate for class treatment. Commentators ignored the terms of the rule and sought justification for conclusive adjudication of absentee …

The Scope Of The Sixth Amendment: Who Is A Criminal Defendant?, David Rossman

Faculty Scholarship

When the Supreme Court, in Argersinger v. Hamlin, extended the right to counsel to misdemeanor defendants facing imprisonment, it raised the prospect of an eventual expansion of this right to defendants in all criminal prosecutions. This expansion appears to be the probable culmination of the historical development of the right to counsel. While prediction from a trend is never fully satisfactory, a trend toward such expansion exists nonetheless. The interpretation of the scope of the sixth amendment right to counsel as applied to the states has evolved from application to defendants in capital cases, to application to those whose lack …

Disclosure Of Hidden Energy Demands: A New Challenge For Nepa, Michael B. Gerrard

Faculty Scholarship

The specialization of the American economy obscures the identity of the ultimate users of energy, even from themselves. As a result consumers remain ignorant of the amount of energy which they use, and of the efficiency of that usage. Direct personal use of energy in the United States, such as electricity and natural gas for home heating, cooking and lighting, and gasoline for private automobiles, accounts for only about one-third of national energy use. Usage by industry and government to provide for the intermediate and final goods and services, for which we as individuals ultimately pay through our purchases and …

The Positional-Risk Doctrine In Workmen’S Compensation, Arthur Larson

Faculty Scholarship

No abstract provided.

The Technological Expert In Products Liability Litigation, Aaron Twerski, William A. Donaher, Henry R. Piehler, Alvin S. Weinstein

Faculty Scholarship

No abstract provided.

Old Wine In A New Flask -- Restructuring Assumption Of Risk In The Product Liability Era, Aaron Twerski

Faculty Scholarship

No abstract provided.

The Future Of Legal Aid In America, A. Kenneth Pye

Faculty Scholarship

No abstract provided.

Product Liability: A Study Of The Interaction Of Law And Technology, Aaron Twerski, Alvin S. Weinstein, Henry R. Piehler, William A. Donaher

Faculty Scholarship

No abstract provided.

"Uncle Sam", The Product Safety Man: Consumer Product Safety Standards In The Marketplace And In The Courts, Marsha N. Cohen, James A. Brodsky

Faculty Scholarship

No abstract provided.