Law Commons^™

Memo On Binary Economics To Attorneys For Women And People Of Color Re: What Else Can Public Corporations Do For Your Clients?, Robert Ashford

College of Law - Faculty Scholarship

One important duty of lawyers is to assist clients in identifying and securing their essential rights, responsibilities, and opportunities. One important purpose of legal education is to enable lawyers to assist clients and society in identifying and securing essential rights, responsibilities, and opportunities. This Article describes one opportunity (based on an approach to economics called "binary economics" first proposed by Louis Kelso), rarely advanced by counsel, that may offer women and people of color, public corporations, and their shareholders benefits far greater than expectations based on the mainstream economic theories (classical, neoclassical, and Keynesian) usually employed to evaluate economic policy …

Good Manners, Gay Rights And The Law, Keith J. Bybee

College of Law - Faculty Scholarship

In this paper, I argue that the expansion of LGBT rights requires engagement with the common practices of courtesy that confer and reinforce social standing. In order to understand what this engagement with good manners might look like, I outline the basic features of common courtesy and illustrate how courtesy depends on a mix of utility, habit, and pleasure. I argue that if the practice of courtesy is to be re-appropriated, then all three of the factors that underwrite courtesy must be addressed. I also consider the general possibilities for re-configuring courtesy. And, in this vein, I suggest that the …

Legal Realism, Common Courtesy, And Hypocrisy, Keith J. Bybee

College of Law - Faculty Scholarship

In the United States, courts are publicly defined by their distance from politics. Politics is said to be a matter of interest, competition, and compromise. Law, by contrast, is said to be a matter of principle and impartial reason. This distinction between courts and politics, though common, is also commonly doubted - and this raises difficult questions. How can the courts at once be in politics yet not be of politics? If the judiciary is mired in politics, how can one be sure that all the talk of law is not just mummery designed to disguise the pursuit of partisan …

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

College of Law - Faculty Scholarship

No abstract provided.

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 …

Loose Canons: Statutory Construction And The New Nondelegation Doctrine, David M. Driesen

College of Law - Faculty Scholarship

This article asks whether courts or administrative agencies have constitutional authority to narrowly construe statutes to save them from truly serious nondelegation claims. It explains why the Court correctly rejected administrative saving construction in American Trucking Ass'ns v. Whitman, and why the rationale supporting this rejection applies to courts as well as to agencies. This article also questions recent arguments that the nondelegation doctrine has found a new and appropriate home among canons of statutory construction. Judicial saving construction could lead to great expansion of judicial authority to make public law at the expense of the more democratic branches of …

Learning More Than Law From Maryland Decisions, Ian Gallacher

College of Law - Faculty Scholarship

No abstract provided.

Getting Our Priorities Straight: One Strand Of The Regulatory Reform Debate, David M. Driesen

College of Law - Faculty Scholarship

This article seeks to clarify the conceptual basis for the claim that regulatory priorities are seriously askew, a claim that has played a prominent role in the ongoing regulatory reform debate. It develops a theoretical framework clarifying the meaning of priority setting. It claims that the regulatory reform debate has paid little attention to the information most obviously relevant to determining whether serious priority setting defects exist. And regulatory reformers principle recommendation for improving priority setting, increased use of cost-benefit analysis in regulatory proceedings, has, at best, a tenuous connection with priority setting. Regulatory reformers have conflated concerns about excessively …

Free Lunch Or Cheap Fix?: The Emissions Trading Idea And The Climate Change Convention, David M. Driesen

College of Law - Faculty Scholarship

Emissions trading has become a key component of U.S. environmental legal regimes. The U.S. has successfully lobbied to make international environmental benefit trading, an expanded form of emissions trading, a part of international efforts to address the threat of global climate change through the Framework Convention on Climate Change and the Kyoto Protocol to that Convention. Legal scholars have lauded emissions trading as a "free lunch" that will encourage innovation, enhance democratic accountability, and reduce the cost of environmental cleanup. This article argues that emissions trading functions as a cheap fix, reducing short-term costs while tending to lessen innovation and …