Law Commons^™

Oh, The Treatise!, Richard A. Danner

Michigan Law Review

In his foreword to the Michigan Law Review's 2009 Survey of Books Related to the Law, my former Duke colleague Erwin Chemerinsky posed the question: "[W]hy should law professors write?" In answering, Erwin took as a starting point the well-known criticisms of legal scholarship that Judge Harry Edwards published in this journal in 1992. Judge Edwards indicted legal scholars for failing to engage the practical problems facing lawyers and judges, writing instead for the benefit of scholars in law and other disciplines rather than for their professional audiences. He characterized "practical" legal scholarship as both prescriptive (aiming to instruct attorneys, …

Tribute To Larry Ribstein, Barry E. Adler

Michigan Law Review

A law school job talk for an entry-level candidate is an opportunity for the presenter to put his or her ideas before a faculty in the best possible light. A bit of give-and-take is part of the drill, but the candidate can usually expect the talk to stay more or less on course. My own first job talk, though, given at George Mason University more years ago than I'd like to admit, was attended by the thoroughly exceptional Larry Ribstein and so did not unfold in the usual way.

Education, Complaints, And Accountability, Juan Botero, Alejandro Ponce, Andrei Shleifer

Alejandro Ponce

Better educated countries have better governments, an empirical regularity that holds in both dictatorships and democracies. A possible reason for this fact is that educated people are more likely to complain about misconduct by government officials and that more frequent complaints encourage better behavior from officials. Newly assembled individual-level survey data from the World Justice Project show that, within countries, better educated people are more likely to report official misconduct. The results are confirmed using other survey data on reporting crime and corruption. Citizen complaints might thus be an operative mechanism that explains the link between education and the quality …

The Vexations Of Aging From The Imagination (A Lot) And Life (A Little) Of Bill Miller, James J. White

Reviews

Bill Miller has done something quite uncommon, possibly singular: he has become a prominent law professor by writing books that have nothing to do with the law. His books do not even have the remote relation to law that books by philosophers or historians can claim. Having studied medieval history before law school and achieved law school tenure by teetering on the edge of law in his work on Icelandic sagas, Miller jumped the fence completely in his books The Mystery of Courage, The Anatomy of Disgust, and Faking It. He has never returned. Presumably, this Review earned a place …

What Ed Cooper Has Taught Me About The Realities And Complexities Of Appellate Jurisdiction And Procedure, Catherine T. Struve

University of Michigan Journal of Law Reform

In this brief essay, I will describe some of what I have learned from Ed Cooper as a fellow participant in the rulemaking process and as a coauthor of two volumes of his Federal Practice and Procedure treatise. To describe everything that Ed has taught me would require much more than the length of this essay. So instead, I will try to offer some representative examples-or, as Ed might say, some "sketches." Because others will discuss Ed's expert guidance of the Rules Committees' consideration of key issues concerning the Civil Rules, my discussion of Ed's scholarship and reporting work will …

Issues And Trends In Collection Development For East Asia Legal Materials, Joostaek Lee, Xiaomeng Zhang, Keiko Okuhara, Evelyn Ma

Law Librarian Scholarship

The authors delineate the general policy and guidelines for developing foreign and transnational law collections in U.S. law libraries, and they analyze factors that shape East Asian collections, such as law libraries’ preservation and digitization efforts and their related cost-efficiency, and the availability and quality of English translations. The authors then discuss the main sources for Korean, Japanese, and Chinese law.

Patent Landscape Of Helminth Vaccines And Related Technologies, Jon R. Cavicchi, Stanley P. Kowalski, John Schroeder, Rayna Burke, Jillian Michaud-King

Law Faculty Scholarship

Executive Summary This report focuses on patent landscape analysis of technologies related to vaccines targeting parasitic worms, also known as helminths. These technologies include methods of formulating vaccines, methods of producing of subunits, the composition of complete vaccines, and other technologies that have the potential to aid in a global response to this pathogen. The purpose of this patent landscape study was to search, identify, and categorize patent documents that are relevant to the development of vaccines that can efficiently promote the development of protective immunity against helminths. The search strategy used keywords which the team felt would be general …

Legal Issues In Integrated, Multi-Pollutant Planning For Energy And Air Quality, Shawna Ganley, Shelley Welton

Sabin Center for Climate Change Law

In the face of persistent air quality problems, as well as emerging concerns such as greenhouse gases and state budgetary constraints, states are looking to new ways to maximize air quality while minimizing costs. The non-profit Regulatory Assistance Project (RAP) assists states in air quality management, and has recently proposed a new methodology for states to use in order to take a proactive, forward-thinking approach to optimize air quality. RAP’s proposed Integrated, Multi-Pollutant Planning for Energy and Air Quality (IMPEAQ) fosters long-range planning, multi-pollutant analysis and cost optimization modeling to enable state air quality districts to achieve efficient gains in …

Federal Regulatory Barriers To Grid-Deployed Energy Storage, Andrew Meyer

Sabin Center for Climate Change Law

Until recently, the most advanced form of grid-deployed energy storage involved pumping water up a hill. But “newer storage technologies like flywheels and chemical batteries have recently achieved technological maturity and are well into successful pilot stages and, in some cases, commercial operation”. If widely adopted these new energy storage technologies will fundamentally alter the operation of our electricity system

Survey Of 2012 Cases Under State Environmental Quality Review Act, Michael B. Gerrard

Faculty Scholarship

The courts issued 55 decisions in 2012 under the State Environmen­tal Quality Review Act (SEQRA).1 As this annual survey shows, especially important decisions concerned the necessity of supplemental environmental impact statements (EISs), and the relationship of SEQRA to various federal laws.

The State Department of Environmental Conservation (DEC) was also busy. On Jan. 15, 2012, DEC adopted revised short and full environmental assessment forms, which are used in determining whether full EISs are needed. The new forms become effective on Oct. 7, 2013. They will be accompanied by workbooks and by an updated web-based geographic information system search engine to …

Digest Of Hydraulic Fracturing Cases, Smita Walavalkar

Sabin Center for Climate Change Law

As U.S. coal exports increase and new infrastructure is proposed to improve access to markets in Asia, controversy has arisen regarding the scope of environmental review that should be carried out by government. In particular, there is significant disagreement as to whether the end-use of exported coal and the emissions generated by its combustion fall within the scope of environmental review under the National Environmental Policy Act of 1969 (NEPA). This paper considers this issue, examining the requirements of NEPA and its implementing regulations, as well as current practice by Federal agencies.

Reducing Legal Hurdles To Combined Heat And Power In New York, Michael B. Gerrard

Faculty Scholarship

Combined heat and power (CHP or cogeneration) is the simultane­ous production of electricity and thermal energy from a single fuel source. Most CHP systems in New York City use natural-gas fired turbines or reciprocating engines to generate electric­ity and then capture heat from the com­bustion generator’s exhaust stream and cooling systems.

Encouraging Energy Efficiency Through The Clean Air Act, Moneen Nasmith

Sabin Center for Climate Change Law

Energy efficiency measures provide tremendous opportunities for achieving effective and cost-friendly reductions in the emissions of greenhouse gases. In the absence of more comprehensive legislative efforts, proponents of energy efficiency projects can look to existing environmental laws for tools to promote and encourage energy efficiency and conservation. One such law is the federal Clean Air Act (“CAA”), which empowers the U.S. Environmental Protection Agency (“EPA”) to use a variety of mechanisms to address air pollution and protect the public health. Although the statute and its accompanying regulations are complex, the CAA provides a number of important avenues for advocates of …

Nepa And Downstream Greenhouse Gas Emissions Of U.S. Coal Exports, Elizabeth Sheargold, Smita Walavalkar

Sabin Center for Climate Change Law

As U.S. coal exports increase and new infrastructure is proposed to improve access to markets in Asia, controversy has arisen regarding the scope of environmental review that should be carried out by government. In particular, there is significant disagreement as to whether the end-use of exported coal and the emissions generated by its combustion fall within the scope of environmental review under the National Environmental Policy Act of 1969 (NEPA). This paper considers this issue, examining the requirements of NEPA and its implementing regulations, as well as current practice by Federal agencies.

Discussion Of Climate Change-Related Water Impacts In Federal Environmental Impact Statements (Eiss), January-September 2012, Cathy Li

Sabin Center for Climate Change Law

Climate change and its predicted effect on precipitation, temperature, storm frequency and intensity, global sea levels, and numerous other factors will pose significant challenges for the maintenance and operations of built infrastructure. Climate change is predicted to exacerbate water-related issues, such as water supply shortages brought on by increasingly severe droughts and more frequent or intense flooding caused by extreme precipitation events. Executive Order 13514 and subsequent instructions from the Council on Environmental Quality (CEQ) have directed federal agencies to prepare for and adapt to the changing environment in which they will have to operate. The National Environmental Policy Act …

Managed Coastal Retreat: A Legal Handbook On Shifting Development Away From Vulnerable Areas, Anne Siders

Sabin Center for Climate Change Law

Numerous legal tools already exist to assist federal, state, and local governments in conducting managed retreat away from the most vulnerable coasts. Scattered publications, toolkits, and websites describe a broad range of legal, policy, and regulatory tools. These tools have, with little fanfare, been used by communities around the United States to implement managed retreat. This Handbook collects examples, case studies, and lessons learned from some of these early innovators in the hope that their lessons can inform future efforts to limit the exposure of our communities to coastal threats. The key legal issues raised by these examples are also …

Climate Change Action Without Congress, Michael B. Gerrard

Faculty Scholarship

Congress has not enacted major environmental legislation since 1990, and no end to the paralysis is in sight. Nonetheless, there is a great deal that the Obama Administration can do with its existing statutory powers to fight climate change.

Envisioning Resilient Electrical Infrastructure: A Policy Framework For Incorporating Future Climate Change Into Electricity Sector Planning, Sam C.A. Nierop

Sabin Center for Climate Change Law

Climate change needs to be incorporated in future designs of the electricity sector. This paper argues for a policy framework in which utilities take the lead by performing an electrical climate change impact assessment that evaluates to what extent utilities’ electrical assets are vulnerable to future climate change. Based on this assessment, electrical climate change adaptation plans should be formulated by the utility in cooperation with utility regulators, municipalities and supralocal governments. A collaborative process is essential, because adaptation measures need to be tailored to the regional circumstances and many types of adaptation measures require governmental approval. In order for …

Will Greenhouse Gas Rules Prohibit New Coal Power Plants?, Christine Fazio, Ethan Strell

Sabin Center for Climate Change Law

Our article on June 28, 2012, discussed a proposed rule by the U.S. Environmental Protection Agency (EPA) that would limit, for the first time, carbon dioxide (CO2) emissions from new fossil fuel-fired power plants. The proposal’s standard was based on the emissions of new natural gas-fired combined-cycle power plants. In order to meet the standards, new coal-fired plants would need to employ costly and untested carbon capture and storage (CCS) technology. The proposal was criticized by supporters of the coal industry because the standard would essentially prevent any new coal-fired power plants from receiving Clean Air Act (CAA) construction permits. …

The Opportunities For And Hurdles To Combined Heat And Power In New York City, Alexis Saba, Bianca Howard, Michael Gerrard, Vijay Modi

Faculty Scholarship

This paper first seeks to quantify the potential for CHP development in New York City and describe the primary hurdles to optimal deployment in Parts I and II. Part III provides policy solutions for overcoming these hurdles and recommendations for how stakeholders can use information and analysis to maximize the opportunities for CHP.

Michael Bloomberg's Environmental Record, Bill De Blasio's Promises, Michael B. Gerrard

Faculty Scholarship

On Nov. 23, 2001, under the headline “Michael Bloomberg’s Environmental Agenda,” this column began, “The stun­ning victory of Michael R. Bloomberg in the Nov. 6 election means that City Hall will be occupied by a man who has no record in environmental affairs.” The column went on to summarize the promises found in Bloomberg’s campaign literature and other statements.

Now with Mayor Bloomberg’s term about to end and Bill de Blasio’s about to begin, we can compare the outgoing mayor’s accomplishments to his promises, and also look at what the incom­ing mayor has pledged.

Regulating Electricity Imports Into Rggi: Toward A Legal, Workable Solution, Shelley Welton, Michael Gerrard, Jason Munster

Faculty Scholarship

This white paper evaluates the legal workability and constitutionality of what is frequently considered the most feasible mechanism for RGGI to use in regulating imports: an obligation on RGGI “load serving entities” (LSEs) – those companies responsible for supplying electricity to end-use customers – to purchase allowances to account for the emissions associated with the electricity they sell that is imported. Ultimately, although there are many design complexities yet to be worked out, we find that an LSE-centered approach could present a viable pathway forward for RGGI states’ regulation of imports. It is likely to create long-term price signals about …

Courts Rulings Accept Climate Science, Michael Gerrard

Faculty Scholarship

Viewers of certain television networks, readers of certain newspapers, and anyone visiting Capitol Hill would come away with the impression that there are serious questions about whether climate change is occurring and, if it is, whether it is mostly caused by human activity. One place where there are few such questions is the courts. In fact it appears that (with one lone exception in a dissent) not a single U.S. judge has expressed any skepticism, in a written opinion or dissent, about the science underlying the concern over climate change. To the contrary, the courts have uniformly upheld this science, …

Technology Transfer And Dissemination Under The Unfccc: Achievements And New Perspectives, Stéphanie Chuffart

Sabin Center for Climate Change Law

Response to climate change will critically depend on the cost, performance, and availability of technologies that can lower emissions, mitigate, and adapt to climate change. Technological innovation can furthermore lower the cost of achieving environmental objectives. However, data from the United Nations Framework Convention on Climate Change (UNFCCC) Subsidiary Body for Scientific and Technological Advice flag that although issues of technology transfer have been central to the UNFCCC since the negotiation of the Convention, there is still an urgent need for effective environmental technology diffusion. Building upon lessons learned from technology transfer activities under the Clean Development Mechanism and the …

State Hazard Mitigation Plans And Climate Change: Rating The States, Matthew Babcock

Sabin Center for Climate Change Law

Climate change is affecting and will continue to affect the frequency and severity of natural hazard events, a trend that is of increasing concern for emergency managers and hazard mitigation agencies across the United States. Proper response to these hazards will require preparation and planning. Unfortunately, states are not required to include analysis of climate change in their State Hazard Mitigation Plans, which leads to uneven treatment of the issue and missed opportunities for mitigation planning. This survey identifies those state plans that address climate change and climate-related issues in an accurate and helpful manner and those that do not. …

"Green" Product Procurement Policy In The European Union: Treatment Of Lifecycle Carbon Analysis And Environmental Ppm Restrictions, Shawna Ganley

Sabin Center for Climate Change Law

With approximately 19% of the EU’s GDP going to government purchases, “green procurement” policies could potentially have a sizable impact on carbon emissions, and moreover could bolster the larger consumer market for sustainable goods. This white paper reviews current EC policy in this area, focusing particularly on the way in which the EC treats lifecycle analysis and non-product related “process and production methods” (PPMs), criteria that relate to the way in which the product was produced rather than to the physical properties of the final product. The paper also addresses some of the factors that may have stymied better uptake …

Red China Going Green: The Emergence And Current Development Of Carbon Emissions Trading In The World's Largest Carbon Emitter, Xiaotang Wang

Sabin Center for Climate Change Law

This paper focuses on one of China’s efforts to engage with climate change—the establishment and development of carbon emissions trading schemes (ETSs) in the country. Section II examines the shift from command and control approaches to market mechanisms in China’s climate policy over the past two decades, which primed the domestic scene for the emergence of carbon emissions trading. Section III studies the seven regional ETS pilots due to launch later this year, the success or failure of which will to a large extent determine the future of carbon markets in not only China, but most likely the rest of …

Carbon Capture And Storage Policy In China, Yan Gu

Sabin Center for Climate Change Law

This paper examines the current state of Carbon Capture, Utilization and Storage technology (CCUS) in China as well as the related climate change policy, laws, and initiatives that might be used to encourage the large-scale deployment of carbon sequestration in China. The paper is organized in six sections. Section I examines the overall status of CCUS development in China, including CCUS research activities and demonstration project deployment. Section II discusses the broader environment of national climate change policies issued by the State Council (namely the Central People’s Government) and how it accommodates CCUS development policy. Section III reviews China’s technology …

Vistas Of Finance, Tom C. W. Lin

Tom C. W. Lin

Finance is undergoing a fundamental and technological shift. In the years ahead, there will inevitably be new financial characters and new financial cliffhangers. In this reply to the response of Professor Stephen Bainbridge to my article, 'The New Investor', I offer commentary on one particular new financial character, then on the general trope of cliffhangers as they relate to financial regulation.