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Full-Text Articles in Law
Thinking Of Environmental Law As A Complex Adaptive System: How To Clean Up The Environment By Making A Mess Of Environmental Law, J.B. Ruhl
J.B. Ruhl
This article is the fourth in my series of articles exploring the application of complex adaptive systems (CAS) theory to legal systems. It applies the model built in the three prior installments (in the Duke, Vanderbilt, and UC-Davis law reviews) to the specific context of environmental law. The work describes the subject matter of environmental law as a CAS and explains why environmental law thus must "think like a complex adaptive system" in order to accomplish its objectives.
The Presidential Memorandum On Mitigation, J.B. Ruhl
The Presidential Memorandum On Mitigation, J.B. Ruhl
J.B. Ruhl
On November 3, 2015, President Obama issued a Presidential Memorandum aimed at unifying the mitigation practice and policy for activities carried out and approved by the Departments of Defense, Interior, and Agriculture, the EPA, and the National Oceanic and Atmospheric Administration... See Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment, 80 Fed. Reg. 68743 (Nov. 6, 2015). The broad policy goal of the Memorandum is to ensure that the agencies’ mitigation policies “are clear, work similarly across agencies, and are implemented consistently within agencies.†Id. at 68743. The Memorandum also emphasizes the need for transparency, measurable …
The Permit Power Revisited, J.B. Ruhl, Eric Biber
The Permit Power Revisited, J.B. Ruhl, Eric Biber
J.B. Ruhl
Two decades ago, Professor Richard Epstein fired a shot at the administrative state that has gone largely unanswered in legal scholarship. His target was the “permit power,†under which legislatures prohibit a specified activity by statute and delegate administrative agencies discretionary power to authorize the activity under terms the agency mandates in a regulatory permit. Describing the permit power, accurately, as an “enormous power in the state,†Epstein bemoaned that it had “received scant attention in the academic literature.†He sought to fill that gap. Centered on his premise that the permit power represents “a complete inversion of the proper …
Regulatory Exit, J.B. Ruhl, James Salzman
Regulatory Exit, J.B. Ruhl, James Salzman
J.B. Ruhl
Exit is a ubiquitous feature of life, whether breaking up in a marriage, dropping a college course, or pulling out of a venture capital investment. In fact, our exit options often determine whether and how we enter in the first place. While legal scholarship is replete with studies of exit strategies for businesses and individuals, the topic of exit has barely been touched in administrative law scholarship. Yet exit plays just as central a role in the regulatory state as elsewhere – welfare support ends; government steps out of rate-setting. In this article, we argue that exit is a fundamental …
Managing Systemic Risk In Legal Systems, J.B. Ruhl
Managing Systemic Risk In Legal Systems, J.B. Ruhl
J.B. Ruhl
The American legal system has proven remarkably robust even in the face vast and often tumultuous political, social, economic, and technological change. Yet our system of law is not unlike other complex social, biological, and physical systems in exhibiting local fragility in the midst of its global robustness. Understanding how this “robust yet fragile†(RYF) dilemma operates in legal systems is important to the extent law is expected to assist in managing systemic risk — the risk of large local or even system-wide failures — in other social systems. Indeed, legal system failures have been blamed as partly responsible for …
Interstate Pollution Control And Resource Development Planning: Outmoded Approaches Or Outmoded Politics?, J.B. Ruhl
J.B. Ruhl
Arbitrary political boundaries are no barrier at all to the physical effects of pollution and resource development. Yet, despite the optimism that ushered in the heightened environmental consciousness of the past several decades, political boundaries have posed a substantial barrier to resolving transboundary pollution control and resource development planning issues. This phenomenon has received considerable attention on the international level; however, because of a stubborn adherence to the idea that the states must serve as the primary jurisdictional units for managing pollution and resource development in the United States, transboundary problems are equally as apparent on the interstate level. After …
Agencies Running From Agency Discretion, J.B. Ruhl, Kyle Robisch
Agencies Running From Agency Discretion, J.B. Ruhl, Kyle Robisch
J.B. Ruhl
Discretion is the root source of administrative agency power and influence, but exercising discretion often requires agencies to undergo costly and time-consuming pre-decision assessment programs, such as under the Endangered Species Act (ESA) and National Environmental Policy Act (NEPA). Many federal agencies thus have argued strenuously, and counter-intuitively, that they do not have discretion over particular actions so as to avoid such pre-decision requirements. Interest group litigation challenging such agency moves has led to a new wave of jurisprudence exploring the dimensions of agency discretion. The emerging body of case law provides one of the most robust, focused judicial examinations …