Law Commons^™

Principled Standard Setting Requires Consideration Of More Than Science (Aei-Brookings Joint Center For Regulatory Studies, Brief 00-02) Brief Amicus Curiae In Support Of Respondents, Browner V. American Trucking Associations, Inc., No. 99-1257, (U.S. September 11, 2000)(With 20 Law Professors, Economists, And Scientists), Jonathan B. Wiener, Cary Coglianese, Gary Marchant

Faculty Scholarship

Summary of Argument: Throughout this proceeding, EPA has identified no policy or normative criteria to justify its NAAQS standards, thus suggesting that science alone can be used to determine the appropriate air quality standard. Science plays a critical, indeed essential, role in evaluating the risks of possible air quality standards being considered for adoption by EPA. However, science by itself cannot provide the justification for selecting a particular air quality standard. Especially in setting standards for non-threshold pollutants, such as in this case, scientific evidence cannot alone indicate where the standard should be set, since any level above zero will …

The Paradox Of Free Market Democracy: Rethinking Development Policy, Amy L. Chua

Faculty Scholarship

No abstract provided.

Hercules, Herbert, And Amar: The Trouble With Intratextualism, Ernest A. Young, Adrian Vermeule

Faculty Scholarship

Commentary on, Akhil Reed Amar, Intratextualism, 112 Harvard Law Review 747 (1999).

Building The Basic Course Around Intra-Firm Relations, Kimberly D. Krawiec

Faculty Scholarship

No abstract provided.

The Law And The Human Target In Information Warfare: Cautions And Opportunities, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

The Puzzling Case Of The Revenue-Maximizing Lottery, Lawrence A. Zelenak

Faculty Scholarship

Familiarity with state lotteries obscures their strangest characteristic-that they are designed to extract as much revenue as possible from lottery consumers. States do not attempt to wring as much revenue as possible from the consumers of any other product, either through government monopolies or through revenue-maximizing taxation. In this article, Prof. Zelenak considers various possible justifications for the uniquely unfavorable treatment of lottery consumers. The article concludes that the special state treatment of lotteries cannot be justified by efficiency analysis, distributional effects, or historical precedent. The article notes, however, that the previous illegality of lotteries meant that lotteries could be …

Expressive Theories Of Law: A Skeptical Overview, Matthew D. Adler

Faculty Scholarship

An "expressive theory of law" is, very roughly, a theory that evaluates the actions of legal officials in light of what those actions mean, symbolize, or express. Expressive theories have long played a role in legal scholarship and, recently, have become quite prominent. Elizabeth Anderson, Robert Cooter, Dan Kahan, Larry Lessig, and Richard Pildes, among others, have all recently defended expressive theories (or at least theories that might be characterized as expressive). Expressive notions also play a part in judicial doctrine, particularly in the areas of the Establishment Clause and the Equal Protection Clause.

This paper attempts to provide a …

‘Chevron’ Deference And Foreign Affairs, Curtis A. Bradley

Faculty Scholarship

No abstract provided.

Comparing The Scope Of The Federal Government’S Authority To Prosecute Federal Corruption And State And Local Corruption: Some Surprising Conclusions And A Proposal, Sara Sun Beale

Faculty Scholarship

No abstract provided.

Codifying Interest Analysis In The Torts Chapter Of A New Conflicts Restatement, William A. Reppy Jr.

Faculty Scholarship

No abstract provided.

Alden V. Maine’ And The Jurisprudence Of Structure, Ernest A. Young

Faculty Scholarship

No abstract provided.

Conversations At Work, Mitu Gulati, Devon W. Carbado

Faculty Scholarship

No abstract provided.

Tocqueville’S Aristocracy In Minnesota, Paul D. Carrington

Faculty Scholarship

No abstract provided.

Introduction, To Cost-Benefit Analysis, Matthew D. Adler, Eric A. Posner

Faculty Scholarship

No abstract provided.

When Should Rights “Trump”? An Examination Of Speech And Property, Laura S. Underkuffler

Faculty Scholarship

No abstract provided.

Grandparent Visitation: Best Interests Test Is Not In Child’S Best Interests, Katharine T. Bartlett

Faculty Scholarship

No abstract provided.

Cruel, Mean, Or Lavish? Economic Analysis, Price Discrimination And Digital Intellectual Property, James Boyle

Faculty Scholarship

No abstract provided.

Litigators’ Ethics, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Comparing Race And Sex Discrimination In Custody Cases, Katharine T. Bartlett

Faculty Scholarship

No abstract provided.

Civil Challenges To The Use Of Low-Bid Contracts For Indigent Defense, Margaret H. Lemos

Faculty Scholarship

In recent years, increasing attention has been directed to the problem of adequate representation for indigent criminal defendants. While overwhelming caseloads and inadequate funding plague indigent defense systems of all types, there is a growing consensus in the legal community that low-bid contract systems-under which the state or locality's indigent defense work is assigned to the attorney willing to accept the lowest fee-pose particularly serious obstacles to effective representation. In this Note, Margaret Lemos argues that the problems typical of indigent defense programs in general-and low-bid contract systems in particular-can and should be addressed through § 1983 civil actions alleging …

The Section 5 Mystique, Morrison, And The Future Of Federal Antidiscrimination Law, Margaret H. Lemos, Samuel Estreicher

Faculty Scholarship

No abstract provided.

Beyond Efficiency And Procedure: A Welfarist Theory Of Regulation, Matthew D. Adler

Faculty Scholarship

Normative scholarship about regulation has been dominated by two types of theories, which I term "Neoclassical" and "Proceduralist." A Neoclassical theory has the following features: it adopts a simple preference-based view of well-being, and it counts Kaldor-Hicks efficiency as one of the basic normative criteria relevant to the evaluation of regulatory programs. A Proceduralist theory is concerned, not solely with the quality of regulatory outcomes, but also with the governmental procedures that produce these outcomes: it gives intrinsic significance to the procedures that regulatory bodies follow. (One example of a Proceduralist theory is the civic republican theory of regulation advanced …

Personal Rights And Rule Dependence: Can The Two Co-Exist?, Matthew D. Adler

Faculty Scholarship

Constitutional doctrine is typically "rule-dependent." Typically, a constitutional litigant will not prevail unless she can show that a particular kind of legal rule is in force, e.g., a rule that discriminates against "suspect classes" in violation of the Equal Protection Clause, or that targets speech in violation of the First Amendment, or that is motivated by a religious purpose in violation of the Establishment Clause. Further, the litigant must typically establish a violation of her "personal rights." The Supreme Court has consistently stated that a reviewing court should not invalidate an unconstitutional governmental action at the instance of a claimant …

Implementing Cost-Benefit Analysis When Preferences Are Distorted, Matthew D. Adler, Eric A. Posner

Faculty Scholarship

Cost-benefit analysis is routinely used by government agencies in order to evaluate projects, but it remains controversial among academics. This paper argues that cost-benefit analysis is best understood as a welfarist decision procedure and that use of cost-benefit analysis is more likely to maximize overall well-being than is use of alternative decision-procedures. The paper focuses on the problem of distorted preference. A person's preferences are distorted when his or her satisfaction does not enhance that person's well-being. Preferences typically thought to be distorted in this sense include disinterested preferences, uninformed preferences, adaptive preferences, and objectively bad preferences; further, preferences may …

Linguistic Meaning, Nonlinguistic “Expression,” And The Multiplevariants Of Expressivism: A Reply To Professors Anderson And Pildes, Matthew D. Adler

Faculty Scholarship

No abstract provided.

Standing While Black: Distinguishing Lyons In Racial Profiling Cases, Brandon L. Garrett

Faculty Scholarship

Plaintiffs challenging racial profiling must contend with the Supreme Court's decision in City of Los Angeles v. Lyons, which restricted standing for injunctive relief against government officials. This Note articulates a framework for assessing standing for injunctive relief based on case law following Lyons: Plaintiff must demonstrate a sufficiently "credible threat" of future harm where government conduct was authorized by a policy, practice, or custom and where plaintiff was law-abiding. Lyons analysis focuses exclusively on an individual's likelihood of future harm because the Court was reluctant to let the grievance of one individual support city-wide injunctive relief. Where racial profiling …

Clear Consensus, Ambiguous Commitment, Christopher H. Schroeder

Faculty Scholarship

No abstract provided.

Book Review, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Vicarious Liability: Relocating Responsibility For The Quality Of Medical Care, Clark C. Havighurst

Faculty Scholarship

No abstract provided.

Convenient Shorthand: The Supreme Court And The Language Of State Sovereignty, H. Jefferson Powell, Benjamin J. Priester

Faculty Scholarship

No abstract provided.