Law Commons^™

Harmonizing Commercial Wind Power And The Endangered Species Act Through Administrative Reform, J. B. Ruhl

Vanderbilt Law Review

What could be greener than wind power? That's easy-saving endangered species! The wind power industry has learned the hard way what timber companies, federal land management agencies, hydropower generators, state highway departments, real estate developers, small coastal villages, the Environmental Protection Agency, farmers, major metropolitan governments, and more like them around the nation know all too well-never, ever take your eyes off the Endangered Species Act ("ESA"). It may be green and one of the darlings of our nation's renewable energy future, but wind power has no "green pass" to get out of the ESA.

The reason wind power has …

Symposium - Supply And Demand: Barriers To A New Energy Future, Michael P. Vandenbergh, J. B. Ruhl, Jim Rossi

Vanderbilt Law Review

Like many fields, energy law has had its ups and downs. A period of remarkable activity in the 1970s and early 1980s focused on the efficiencies arising from deregulation of energy markets, but the field attracted much less attention during the 1990s. In the last decade, a new burst of activity has occurred, driven largely by the implications of energy production and use for climate change. In effect, this new scholarship is asking what efficiency means in a carbon- constrained world. Accounting for carbon has induced scholars to challenge the implicit assumption of the early scholarship that the price of …

Good For You, Bad For Us: The Financial Disincentive For Net Demand Reduction, Michael P. Vandenbergh, Jim Rossi

Vanderbilt Law Review

Energy policy debates often focus on increasing the supply of renewable energy, but energy demand merits equal attention. Low- carbon energy sources will not be able to displace fossil fuels at the levels necessary to achieve climate goals if global demand continues to grow at projected rates. To meet the widely endorsed goal of 50% global carbon emissions reductions by 2050, including 80% reductions from developed countries, global emissions from fossil fuel use will need to decline by more than seven billion tons from projected levels by 2050. Major new sources of low-carbon energy will become available, but it is …

Personal Environmental Information: The Promise And Perils Of The Emerging Capacity To Identify Individual Environmental Harms, Katrina Fischer Kuh

Vanderbilt Law Review

A variety of modern technologies reveal individual behaviors that have environmental consequences with increasing clarity. Smart meters and related technologies detect detailed information about when and how individuals use electricity within the home. Radio frequency identification ("RFID") chips embedded in recycling collection bins track household recycling behaviors, including everything from whether the household is recycling to whether its members properly separate their recyclables. Regulators use aerial imagery and geographic information systems ("GIS") technology to detect violations of local building codes and the illegal filling of wetlands. Interactive "ecomaps" allow city residents to compare environmental performance by zip code. Even information …

Truths We Must Tell Ourselves To Manage Climate Change, Robert H. Socolow

Vanderbilt Law Review

In 1958, Charles David Keeling began measuring the concentration of carbon dioxide (C02) in the atmosphere, at a site 11,000 feet above sea level near the top of Mauna Loa on the "big island" of Hawaii. The time series of monthly averages, the "Keeling Curve," is the iconic figure of climate change (see Figure 1). The curve oscillates and rises. The annual oscillations (whose details are seen in the Figure's inset) are the consequences of the seasonal breathing of the northern-hemisphere forests, which remove C02 from the atmosphere during their growing season and return C02 to the atmosphere as their …

Sustainable Consumption, Energy Policy, And Individual Well-Being, Daniel A. Farber

Vanderbilt Law Review

The United States is an exceptional place in many ways, not least in its consumption. The United States consumes a disproportionate share of the world's energy and resources, with a correspondingly large environmental footprint. At present, although we have been successful in creating economic wealth, well-being has lagged behind. Could the United States shift to a more sustainable path? Would that require an unacceptable sacrifice of social welfare? This Article argues that a shift really is possible, and that many of the steps to sustainability would actually make people better off even apart from their environmental benefits.

At present, we …

Can We Regulate Our Way To Energy Efficiency? Product Standards As Climate Policy, Noah M. Sachs

Vanderbilt Law Review

Alternative energy supplies get most of the attention in the climate change debate, but reducing energy demand should be the dominant strategy for cutting global greenhouse gas emissions. Dozens of technical studies have concluded that improving the efficiency of automobiles, furnaces, motors, consumer electronics, lighting, air conditioners, and other energy-using products is the cheapest and fastest way to achieve dramatic reductions in greenhouse gas emissions.' In fact, avoiding catastrophic global heating largely depends on how fast energy efficient technology can be deployed over the next few decades.

Energy efficiency can be promoted through multiple policies, such as energy taxes, a …

Hydro Law And The Future Of Hydroelectric Power Generation In The United States, Dan Tarlock

Vanderbilt Law Review

Hydroelectric energy ("hydro") is the oldest major source of noncarbon, renewable energy in the United States. For three reasons, increased hydro generation should be a major element of any national climate change and energy-security policy designed to promote the greater use of renewables to help the country transition to the production of sustainable, i.e., noncarbon-based, energy. First, hydro is relatively clean because it does not cause air pollution or substantial greenhouse gas emissions.' Second, hydro is relatively reliable. Third, hydro can help wean the United States from its dependence on imported and often politically unstable hydrocarbon sources of energy, because …

Harmonizing Commercial Wind Power And The Endangered Species Act Through Administrative Reform, J.B. Ruhl

Vanderbilt Law School Faculty Publications

This Article explores the intersection of utility-scale wind power development and the Endangered Species Act, which thus far has not been as happy a union as one might expect. Part I provides background on how the ESA and wind power have met in policy, permitting, and litigation. Part II then examines whether wind power (and other renewable energy sources) can and should receive a green pass under the ESA given its unquestioned climate change mitigation benefits, concluding that doing so would face a host of legal and policy concerns. Part III then outlines a model for administrative innovation of ESA …

Good For You, Bad For Us: The Financial Disincentive For Net Demand Reduction, Michael P. Vandenbergh, Jim Rossi

Vanderbilt Law School Faculty Publications

This Article examines a principal barrier to reducing U.S. carbon emissions — electricity distributors’ financial incentives to sell more of their product — and introduces the concept of net demand reduction (“NDR”) as a primary goal for the modern energy regulatory system. Net electricity demand must decrease substantially from projected levels for the United States to achieve widely-endorsed carbon targets by 2050. Although social and behavioral research has identified cost-effective ways to reduce electricity demand, state-of-the-art programs to curtail demand have not been implemented on a widespread basis. We argue that electric distribution utilities are important gatekeepers that can determine …

Supply And Demand: Barriers To A New Energy Future, Jim Rossi, Michael P. Vandenbergh, J. B. Ruhl

Vanderbilt Law School Faculty Publications

Like many fields, energy law has had its ups and downs. A period of remarkable activity in the 1970s and early 1980s focused on the efficiencies arising from deregulation of energy markets, but the field attracted much less attention during the 1990s. In the last decade, a new burst of activity has occurred, driven largely by the implications of energy production and use for climate change. In effect, this new scholarship is asking what efficiency means in a carbon-constrained world. Accounting for carbon has induced scholars to challenge the implicit assumption of the early scholarship that the price of energy …

International Law In Domestic Courts And The Jurisdictional Immunities Of The State Case, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

National court litigation in Greece and Italy prompted Germany to bring suit before the international Court of Justice (‘ICJ’), resulting in the Jurisdictional Immunities of the State judgment. The history of that litigation, as well as the ICJ’s judgment itself, raise two questions about the relationship between executive branches and courts. First, if national court decisions conflict with the views of the forum state’s executive branch, which controls for the purpose of determining state practice in customary international law? Secondly, are national courts more likely to produce ‘outlier’ decisions that challenge or undermine existing international law when the forum state’s …

Customizing Employment Arbitration, Randall Thomas, Kenneth J. Martin, Erin O'Hara O'Connor

Vanderbilt Law School Faculty Publications

According to the dispute resolution literature, one advantage of arbitration over litigation is that arbitration enables the parties to customize their dispute resolution procedures. For example, parties can choose the qualifications of the arbitrator(s), the governing procedural rules, the limitation period, recoverable damages, rules for discovery and the presentation of evidence and witnesses, and the specificity of required arbitrator findings. While other scholars have questioned whether parties to arbitration agreements frequently take advantage of this customization, there is little solid empirical information about the topic. In this article, we study the arbitration clauses found in a random sample of 910 …

The Endangered Species Act's Fall From Grace In The Supreme Court, J.B. Ruhl

Vanderbilt Law School Faculty Publications

Thirty-five years ago, the Endangered Species Act ("ESA") had as auspicious a debut in the U.S. Supreme Court as any statute could hope for. In Tennessee Valley Authority v. Hill, a majority of the Court proclaimed that the ESA was intended "to halt and reverse the trend toward species extinction, whatever the cost" and backed up those and other bold words by preventing a nearly completed federal dam from impounding its reservoir because doing so would eliminate the only known (at the time) habitat of a small fish, the now infamous snail darter. To this day, Hill remains actively discussed …

The Political Economy Of Climate Change Winners, J.B. Ruhl

Vanderbilt Law School Faculty Publications

Many people and businesses in the United States stand to receive market and nonmarket benefits from climate change as it moves forward over the next 100 years. Speaking of climate change benefits is not for polite 'green' conversation, but ignoring them as climate policy dialogue and legal scholarship consistently have" will not make them go away. It is important to take climate change benefits into account if they lead people and businesses to believe that climate change will not be so bad for them, or even to believe it has made them into climate change winners. Thus, whereas legal scholars …

Interstate Transmission Challenges For Renewable Energy: A Federalism Mismatch, Alexandra B. Klass, Elizabeth J. Wilson

Vanderbilt Law Review

It is impossible to talk about developing renewable energy resources in the United States without also talking about developing electric transmission infrastructure. More specifically, the transmission-planning strategies that may have worked in the past are no longer effective to integrate new sources of renewable energy into the transmission grid. Transmission lines were historically built to link large stationary power plants to nearby electricity demand centers like cities. For renewable energy, however, state mandates and policies are driving investment in wind-and to a lesser extent solar-energy, creating a need for new transmission lines to link these dispersed resources with electric load …

Building-Related Renewable Energy And The Case Of 360 State Street, Sara C. Bronin

Vanderbilt Law Review

This Article focuses on small-scale and midsized facilities and does not consider large-scale facilities, which tend to be located far from population centers. These facilities certainly raise pressing legal concerns, not least of which is how the energy sprawl they create should be managed. Indeed, siting (along with initial start-up financing) is a primary barrier to large-scale renewable energy. This Article sets large-scale facilities aside and focuses primarily on projects whose scale allows them to be incorporated into inhabited structures.

Angry Judges, Terry A. Maroney

Vanderbilt Law School Faculty Publications

Judges get angry. Law, however, is of two minds as to whether they should; more importantly, it is of two minds as to whether judges’ anger should influence their behavior and decision making. On the one hand, anger is the quintessentially judicial emotion. It involves appraisal of wrongdoing, attribution of blame, and assignment of punishment — precisely what we ask of judges. On the other, anger is associated with aggression, impulsivity, and irrationality. Aristotle, through his concept of virtue, proposed reconciling this conflict by asking whether a person is angry at the right people, for the right reasons, and in …

Angry Judges, Terry A. Maroney

Vanderbilt Law Review

Judges get angry. Law, however, is of two minds as to whether they should; more importantly, it is of two minds as to whether judges' anger should influence their behavior and decisionmaking. On the one hand, anger is the quintessentially judicial emotion. It involves appraisal of wrongdoing, attribution of blame, and assignment of punishment-precisely what we ask of judges. On the other, anger is associated with aggression, impulsivity, and irrationality. Aristotle, through his concept of virtue, proposed reconciling this conflict by asking whether a person is angry at the right people, for the right reasons, and in the right way. …

Warning: May Cause Warming, Marcy N. Moody

Vanderbilt Law Review

Browsing the aisles of her local grocery store, a shopper may come across a dusty unmarked bin with carrots in it. She may see a shelf of brightly colored cereal boxes touting their contents' health benefits. Elsewhere in the store may be an iced container of sustainable shrimp from Thailand with a circled blue checkmark next to it. Perhaps there are local leeks, organic okra, or eggs from free- ranging chickens. The shopper may select the cereal on the basis of its health claims, the shrimp on the basis of its environmental friendliness, or maybe just the carrot because she …

A Regulatory Design For Monetary Stability, Morgan Ricks

Vanderbilt Law Review

This Article proposes a unified regulatory approach to the issuance of "money-claims"--a generic term that refers to fixed-principal, very short-term IOUs, excluding trade credit. The instability of this market is arguably the central problem for financial regulatory policy. Yet our existing regulatory system lacks a coherent approach to this market. The Article proposes a public-private partnership ("PPP") regime, under which only licensed entities would be permitted to issue money - claims (subject to de minimis exceptions). Licensed money- claim issuers would be required to abide by portfolio restrictions and capital requirements. In addition, the government would explicitly insure licensed issuers' …

Pawnshops, Behavioral Economics, And Self Regulation, Paige Marta Skiba, Susan Payne Carter

Vanderbilt Law School Faculty Publications

Pawnbroking is the oldest source of credit. There is growing public interest in day-to-day pawnbroking operations, as evidenced by the popularity of reality shows such as “Pawn Stars” and “Hardcore Pawn.” Television viewers’ curiosity about an old credit institution may be due to the fact that 7% of all U.S. households have used pawn credit. Although pawnshops predate biblical times, researchers know surprisingly little about this ancient form of banking and its customers. We fill this gap by documenting detailed information on pawnshop loan repayment and default, and by discussing how pawnshop borrowers’ behavior is consistent with various behavioral economics …

Applying Crawford's Confrontation Right In A Digital Age, Jeffrey Bellin

Vanderbilt Law School Faculty Publications

Much of the recent commentary on the Confrontation Clause focuses on the past. Commentators (and Supreme Court Justices) evaluate the evolving jurisprudence by comparing the confrontation right articulated in Crawford v. Washington and its progeny to the right that existed in 1791. This Essay shifts the focus to the future, exploring how the Supreme Court's new Confrontation Clause jurisprudence will operate in a world where communication is increasingly informal and electronic.

A large and increasing portion of our social discourse takes place electronically, through email and texting, as well as on social media Internet

sites such as Facebook and Twitter. …

Law And Economics As A Pillar Of Legal Education, W. Kip Viscusi, Joni Hersch

Vanderbilt Law School Faculty Publications

This paper reports the distribution of doctoral degrees in economics and in other fields among faculy at the 26 hghest-ranked law schools. Almost one-third of professors at the top 13 law schools have a Ph.D. degree, with 9 % having a Ph.D. in economics. Law school rank is hghly correlated with the share of faculy holding a Ph.D. in economics and is less correlated with the share offaculy with other doctoral degrees. Law and economics is a major area of legal scholarsh based on citations in the law literature and other impact rankings. In recognition of the increased importance of …

A Theory Of Representative Shareholder Suits And Its Application To Multijurisdictional Litigation, Randall Thomas, Robert B. Thompson

Vanderbilt Law School Faculty Publications

We develop a theory to explain the uses and abuses of representative shareholder litigation based on its two most important underlying characteristics: the multiple sources of the legal rights being redressed (creating dynamic opportunities for arbitrage) and the ability of multiple shareholders to seek to represent the collective group in such litigation (creating increased risk of litigation agency costs by those representatives and their attorneys). Placed against the backdrop of controlling managerial agency costs, our theory predicts that: (1) the relative strength of the different forms of shareholder litigation will shift over time; (2) these shifts can result in new …

Rehnquist And Panvasive Searches, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In the history of the Supreme Court, William Rehnquist may have been the least friendly justice toward the view that the Fourth Amendment should be read expansively. Even he, however, might have interpreted the amendment to place more restrictions on modern law enforcement techniques than current caselaw does. Relying on a 1974 article authored by Rehnquist, this essay, written for a symposium on Rehnquist and the Fourth Amendment, describes his views on the types of requirements the Fourth Amendment imposes on the police, how decriminalization can protect privacy, and most importantly, why Rehnquist might have been willing to regulate surveillance …

Inadvertent Implications Of The War Powers Resolution, Michael A. Newton

Vanderbilt Law School Faculty Publications

The constitutional infirmity of the War Powers Resolution has been uniformly demonstrated by more than four decades of bipartisan experience. The Resolution manifestly fails to eliminate the healthy interbranch tensions that are in our constitutional DNA with respect to military deployments. In its context, the override of President Nixon's veto represented little more than a stark act of congressional opportunism. The President's veto message was prescient in warning that the Resolution is dangerous to the best interests of our Nation. This article suggests that the act represents an attempted abdication of the enumerated obligation of Congress to oversee military operations …

Constitutional Cacophony: Federal Circuit Splits And The Fourth Amendment, Wayne A. Logan

Vanderbilt Law Review

Despite their many differences, Americans have long been bound by a shared sense of constitutional commonality. Federal constitutional rights, however, can and do often vary based on geographic location, and a chief source of this variation stems from an unexpected origin: the nation's federal circuit courts of appeals. While a rich literature exists on federal circuit splits in general, this Article provides the first empirical study of federal constitutional law circuit splits. Focusing on Fourth Amendment doctrine in particular, the Article highlights the existence of over three dozen current circuit splits, which result in the unequal allocation of liberty and …

For Their Own Good? Exploring Legislative Responses To The Commercial Sexual Exploitation Of Children And The Illinois Safe Children Act, Angela L. Bergman

Vanderbilt Law Review

Illinois has long struggled to contain what is the perfect storm for exploitation-a large city with consistent conventions, attractions with many tourists, significant amounts of population movement and immigration, access to major airports and interstates, and "entrenched gangs with an entrepreneurial bent." These factors make Chicago in particular an appealing destination for runaways and throwaways across the Midwest. In 2001, a study conservatively estimated that 16,000 to 25,000 women and girls are victims of commercial sexual exploitation in Chicago each year. By 2004, the New York Times had named Chicago a "hub" for sex trafficking. When Illinois was at the …

Recovering "Protection And Security", George K. Foster

Vanderbilt Journal of Transnational Law

Among the most persistent controversies in international investment law is the nature of the "'protection and security" standard found in most investment treaties. Some tribunals contend that the standard requires nothing more than physical protection of covered investments, while others maintain that it requires legal security as well. Some insist that it is entirely distinct from the fair and equitable treatment standard that is often expressed in the same sentence or paragraph, while others effectively conflate the two standards. These conflicting decisions are undermining the legitimacy of investment treaty arbitration, but this Article seeks to resolve the controversies underlying them …