Law Commons^™

Ripe Standing Vines And The Jurisprudential Tasting Of Matured Legal Wines – And Law & Bananas: Property And Public Choice In The Permitting Process, Donald J. Kochan

Donald J. Kochan

From produce to wine, we only consume things when they are ready. The courts are no different. That concept of “readiness” is how courts address cases and controversies as well. Justiciability doctrines, particularly ripeness, have a particularly important role in takings challenges to permitting decisions. The courts largely hold that a single permit denial does not give them enough information to evaluate whether the denial is in violation of law. As a result of this jurisprudential reality, regulators with discretion have an incentive to use their power to extract rents from those that need their permission. Non-justiciability of permit denials …

Let My People Go: Human Capital Investment And Community Capacity Building Via Meta/Regulation In A Deliberative Democracy - A Modest Contribution For Criminal Law And Restorative Justice, Bruce P. Archibald

Articles, Book Chapters, & Popular Press

Globalization and the new information economy are putting great stress on western high-wage economies of which Canada is an exemplar. As individuals and together as a society, Canadians are being forced to become more flexible and strategic in adjusting to changing employment opportunities and economic challenges. Meanwhile, governments have shifted from being purveyors of welfare to being supervisors of both markets and decentralized/ privatized public services. Key roles for the government in this new political environment are the sponsorship of mechanisms for autonomous, individual human capital investment as well as for community responses to these emerging economic and social challenges. …

Much Ado About Nothing?, Cary Coglianese

All Faculty Scholarship

Policy scholars and decision makers should be careful before concluding that President Bush's recent Executive Order 13422 will result in "paralysis by analysis." That lament has been heard about other changes to rule making procedures over the last seven decades, yet steady increases in the cost and volume of federal regulations during that time period clearly indicate that paralysis has yet to set in. Administrative procedures are embedded within a complex web of politics, institutions, and organizational behavior. Within that web, procedures are but one factor influencing government agencies.

Utility And Rights In Common Law Reasoning: Rebalancing Private Law Through Constitutionalization, Hugh Collins

Dalhousie Law Journal

In the evolution of private law, legal reasoning has always confronted the fundamental problem of reconciling private interests with collective goods. Philosophers analyse this problem ofjustice in terms ofprotecting individual rights whilst at the same time maximizing utility or general welfare. The private law of tort, contract, and property rights that emerged in the nineteenth century provided a fortress of protections for individual rights, but the consequences for collective welfare were quickly found wanting. These consequences were addressed by the welfare state, regulation, and the separation of new spheres ofprivate law such as consumer law and labour lawfrom mainstream doctrine, …

Weak Democracy, Strong Information: The Role Of Information Technology In The Rulemaking Process, Cary Coglianese

All Faculty Scholarship

Techno-optimists advocate the application of information technology to the rulemaking process as a means of advancing strong democracy -- that is, direct, broad-based citizen involvement in regulatory policy making. In this paper, I show that such optimism is unfounded given the obstacles to meaningful citizen deliberation posed by the impenetrability of current e-rulemaking developments, the prevailing level of citizen disengagement from politics and policy making more generally, and most citizens’ lack of the requisite technical information about and understanding of the issues at stake in regulatory decision making. As such, a more realistic goal for the application of new technology …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Re-Thinking Securities Regulation: A Comparative Study Of Asx, Nyse, And Sgx , Benedict Sheehy

ExpressO

This article approaches the issue of securities regulation starting with an examination of the nature and role of markets and financial markets. It next outlines the various arguments for and against regulation, and then looks at approaches taken by markets and their regulators. The approaches are government regulation, self-regulation and co-regulation, and the structural changes via demutualization and corporate governance. With this background, it turns to examine how these approaches have played out in the markets themselves. The article surveys the regulatory aspects of the ASX, NYSE and the SGX, and reviews the regulatory and financial performance of the markets. …

Zoning And Eminent Domain Under The New Minimum Scrutiny, John H. Ryskamp

ExpressO

Recently the Supreme Court has made it clearer that minimum scrutiny is a factual analysis. Whether in any government action there is a rational relation to a legitimate interest is a matter of determining whether there is a policy maintaining important facts. This has come about in the Court’s emerging emphasis on developing fact-based criteria for determining government purpose. Thus, those who want to affect zoning and eminent domain outcomes should look to what the Court sees as important facts, and whether government action is maintaining those facts with its proposed land use or eminent domain action.

Buried Online: State Laws That Limit E-Commerce In Caskets, Jerry Ellig, Asheesh Agarwal

ExpressO

Consumers seeking to purchase caskets online could benefit from the Supreme Court’s 2005 decision that states cannot discriminate against interstate direct wine shipment. Federal courts have reached conflicting conclusions when asked whether state laws requiring casket sellers to be licensed funeral directors violate the U.S. Constitution’s Due Process Clause. In Powers v. Harris, the 10th Circuit even offered an unprecedented ruling that economic protectionism is a legitimate state interest that can justify otherwise unconstitutional policies. In Granholm v. Heald, however, the Supreme Court declared that discriminatory barriers to interstate wine shipment must be justified by a legitimate state interest, and …

Putting Regulation Before Responsibility: Towards Binding Norms Of Corporate Social Responsibility, Thomas F. Mcinerney

ExpressO

Globalization of business has heightened concerns regarding corporate conduct in developing countries. Critics have charged that multinational firms in particular have exported social harms involving labor, the environment, bribery, and human rights to jurisdictions outside of their home countries. Opportunities for regulatory arbitrage and the associated collective action problem such opportunities suggest, highlight the need for strong regulatory responses to these issues. Rather than prioritize the strengthening of national or international regulatory actors to address these social harms, voluntary corporate social responsibility initiatives have emerged as a favored response within the international community. This article undertakes a critical examination of …

Are Public Sector Assets By Nature Insuitable For Financing Transnational Investments? , Lucien A. Rapp

ExpressO

Does the legal regime applicable to publicly owned assets constitute a policy instrument to protect public investment? In what way can this benefit public sector property ? Are the structures of the regime sufficiently well established to provide investors with enough certainty?

This paper aims to answer these questions by taking a trans-national perspective. The main concern is to resolve the problems of ownership or non-ownership of public sector assets in the context of financing trans-national investments.

This paper responds to this issue by examining (in two stages) the various consequences for trans-national investment; the first regarding the acquisition of …

Order Without Social Norms: How Personal Norm Activation Can Protect The Environment, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

This Article tackles a leading problem confronting norms theorists and regulators: how can the law induce changes in behavior when the material costs to the individual outweigh the benefits and there is no close-knit community to impose sanctions for failure to change? Because private individuals and households are now surprisingly large contributors to environmental problems ranging from toxic pollution to climate change, environmental policy makers face compelling examples of these negative-payoff, loose-knit group situations. This Article suggests that internalized personal norms, rather than social norms, are the most important initial target of opportunity for influencing this kind of behavior.

Drawing …

The Internet And Citizen Participation In Rulemaking, Cary Coglianese

All Faculty Scholarship

Each year, regulatory agencies promulgate thousands of important rules through a process largely insulated from ordinary citizens. Many observers believe the Internet could help revolutionize the rulemaking process, allowing citizens to play a central role in the development of new government regulations. This paper expresses a contrary view. In it, I argue that existing efforts to apply information technology to rulemaking will not noticeably affect citizen participation, as these current efforts do little more than digitize the existing process without addressing the underlying obstacles to greater citizen participation. Although more innovative technologies may eventually enable the ordinary citizen to play …

Rethinking Regulatory Democracy, Mariano-Florentino Cuellar

ExpressO

This article empirically examines democratic participation in three different regulatory proceedings, involving financial privacy, nuclear regulation, and campaign finance. It then uses that analysis to critique -- and suggest alternatives to -- existing mechanisms to achieve public participation in the regulatory state. The current mechanism for structuring public participation in regulatory decisions (or “regulatory democracy”) relies on demand-driven procedures like the Administrative Procedure Act’s notice and comment process. Organized interests and others who decide they have sufficient resources and interest to do so comment on regulations. While some observers consider this process close to ideal, others instead seem to accept …

Methods Of Power For Development: Weapons Of The Weak, Weapons Of The Strong, John Braithwaite

Michigan Journal of International Law

Peter Drahos and John Braithwaite conducted a study during the 1990s on global business regulation, interviewing more than five hundred key players in approximately twenty globalizing business regulatory regimes. Results from that study are used in this paper to inform the identification of seven elements of American power in global governance. The paper then poses the question whether those elements can be acquired by developing countries.

Pros And Cons Ensuing From Fragmentation Of International Law, Gerhard Hafner

Michigan Journal of International Law

The system of international law has become increasingly fragmented, particularly since the end of the Cold War. This paper intends to present the main features of this development and its implications.

Harm To The "Fabric Of Society" As A Basis For Regulating Otherwise Harmless Conduct: Notes On A Theme From Ravin V. State, Eric A. Johnson

Seattle University Law Review

This article explores the possibility that harm to the fabric of society provides the best justification for some statutes that prohibit otherwise harmless conduct. This article considers three illustrations: first, the incest statutes, which, even in progressive states like Alaska and New York, prohibit a wide array of basically harmless conduct; second, a Massachusetts statute regulating the use of human silhouettes in target practice; and finally, legislation that would prohibit the medical procedure known as "partial-birth abortion.'" After discussing these illustrations, there is a close analysis of the general argument for the preservation of moral reaction patterns. The ultimate validity …

The Proposed Domestic Reverse Hybrid Entity Regulations: Can The Treasury Department Override Treaties?, Anthony C. Infanti

Articles

This article first describes the proposed regulations issued under section 894 addressing the ability of domestic reverse hybrid entities to claim treaty benefits with respect to payments made to their interest holders (the proposed DRH regulations). After describing the proposed DRH regulations, the article next explores the potential that these regulations have to override existing U.S. treaty obligations. After concluding that the proposed DRH regulations are inconsistent with at least one existing treaty, the article concludes by questioning the power of the Treasury Department to promulgate regulations (such as the proposed DRH regulations) that override treaties.

Note: This is a …

Cost-Benefit Default Principles, Cass R. Sunstein

Michigan Law Review

Courts should be reluctant to apply the literal terms of a statute to mandate pointless expenditures of effort. . .. Unless Congress has been extraordinarily rigid, there is likely a basis for an implication of de minimis authority to provide exemption when the burdens of regulation yield a gain of trivial or no value. It seems bizarre that a statute intended to improve human health would .. . lock the agency into looking at only one half of a substance's health effects in determining the maximum level for that substance. [I]t is only where there is "clear congressional intent to …

Opting Out Of Regulation: A Public Choice Analysis Of Contractual Choice Of Law, Erin A. O'Hara

Vanderbilt Law Review

This Article uses public choice theory to analyze the function of choice-of-law clauses in contracts. Choice-of-law clauses are now quite common and are increasingly enforced, especially with the proliferation of international and Internet transactions. Because these clauses can be used by parties to avoid regulation, academics are now vigorously debating the extent to which this contractual opt out should be permitted. The Article presents a positive political theory of the interplay of legislative action and the enforcement of choice of law. It demonstrates that the important normative debate over choice of law is somewhat misguided because both sides fail to …

On The Frontier Of Procedural Innovation: Advance Pricing Agreements And The Struggle To Allocate Income For Cross Border Taxation, Diane M. Ring

Michigan Journal of International Law

This paper outlines a recent procedural innovation in the tax area, the Advance Pricing Agreement Program ("APA" program), and evaluates its success. Such a case study can play a significant role in linking procedural innovation to the broader issues of administrative law theory and regulatory reform. For example, a working model such as the APA program, built on flexibility and creativity, may support administrative theories advocating discretion, flexibility, and experimentation. Conversely, some interest group theories of regulation (e.g., public choice theory), can prompt critical examination of reforms like APAs that exhibit limited openness to scrutiny. The APA program is an …

Revitalizing Environmental Federalism, Daniel C. Esty

Michigan Law Review

Politicians from Speaker Newt Gingrich to President Bill Clinton, cheered on by academics such as Richard Revesz, are eagerly seeking to return authority over environmental regulation to the states. In the European Union, localist opponents of environmental decisionmaking in Brussels rally under the banner of "subsidiarity." And in debates over international trade liberalization, demands abound for the protection of "national sovereignty" in environmental regulation. All of these efforts presume that a decentralized approach to environmental policy will yield better results than more centralized programs. This presumption is misguided. While the character of some environmental concerns warrants a preference for local …

Bioethics With A Human Face, Carl E. Schneider

Articles

This Article and the successor article I will shortly publish grow out of one reaction I have had to years of reading bioethical and legal literature. Let me begin by putting the point in its simplest, even crudest, form: That literature too often discusses the problems of health care in so disembodied and denatured a way that the patients and physicians, the family and friends, the dread and the disease are quite abstracted from the scene. The result is a literature that critically limits itself and that crucially oversimplifies the issues it confronts. There are, of course, reasons bioethical and …

Review Essay: Sunstein, Statutes, And The Common Law--Reconciling Markets, The Communal Impulse, And The Mammoth State, Peter L. Strauss

Michigan Law Review

The following pages principally address Professor Sunstein's basic argument for building on, rather than defending against, legislative judgments, and so virtually ignore the details of his proposals for statutory interpretation. Part I outlines Sunstein's case for some regulation - the necessary failures of market ordering and the consequent need for a mixed economy in which government regulation intervenes in important ways. Part II addresses Sunstein's decision to tie his analysis to the public law innovations of the New Deal, and suggests ways in which the analysis might be strengthened by attention to earlier struggles and changes - changes in common …

Authority And Responsibility: The Jurisprudence Of Deference, Joseph Vining

Articles

he connection between authority and responsibility is such that the one cannot be thought of without the other. In legal method, close reading and rereading of a text marks it as an authoritative text; the presupposition of mind which is necessary to close reading is presupposition of a responsible mind. In the working of institutions that embody authority, the disposition to follow the decisions and statements of a person responsible for a matter inevitably rests upon a presupposition that the decisions and statements followed are those of the responsible person. As that presupposition fades with bureaucratization of decision and writing, …

The Role Of The Democratic And Republican Parties As Organizers Of Shadow Interest Groups, Jonathan R. Macey

Michigan Law Review

This article advances a new theory to explain the relationship between political parties and interest groups. Among the as yet unanswered questions that I resolve are: (1) why many politicians -both Republicans and Democrats - develop a reputation for "party loyalty" despite the parties' inability to employ any meaningful sanctions against politicians who deviate from the party line; (2) why candidates for public office run in contested primaries when running as an independent generally would be a less costly mechanism for getting on the ballot; (3) why the two major U.S. political parties continue to attract resources from contributors and …

Some Implications Of Cognitive Psychology For Risk Regulation, Roger G. Noll, James E. Krier

Articles

Beginning with a set of books and articles published in the 1950s, cognitive psychologists have developed a new descriptive theory of how people make decisions under conditions of risk and uncertainty. A dominant theme in the theory is that most people do not evaluate risky circumstances in the manner assumed by conventional decision theory-they do not, that is, seek to maximize the expected value of some function when selecting among actions with uncertain outcomes. The purpose of this article is to consider some implications of the cognitive theory for regulatory policies designed to control risks to life, health, and the …

Risk And Design, James E. Krier

Articles

Risk springs from uncertainty,' uncertainty invites error, and, since error can be costly, we would prefer to avoid it (provided, of course, that avoidance is not more costly yet). While there is much in the Noll and Krier article2 about judgmental error under conditions of risk and uncertainty, there is little about ways to avoid it. So avoidance-more accurately, minimization-of error costs is the topic I want to address very briefly and partially here.