July 2, 2009

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Georgetown Law Journal, Issue 97.5 (June 2009)

posted by Georgetown Law Journal

Articles

(Still) Not Fit To Be Named: Moving Beyond Race To Explain Why ‘Separate’ Nomenclature for Gay and Straight Relationships Will Never Be ‘Equal’

Courtney Megan Cahill

A Voice-Based Framework for Evaluating Claims of Minority Shareholder Oppression in the Close Corporation

Benjamin Means

  July 2, 2009 at 3:19 pm   Posted in: Law Rev (Georgetown)   Print This Post   Comments (0)

Washington Post Fire Sale

posted by Frank Pasquale

As newspapers falter, we often hear about how terrible it would be if public funding supported them. Imagine the conflicts of interest! Well, we’re now getting an inside look at the “stealth marketing” media may need to engage in in order to survive:

Mike Allen at Politico.com [has] reported that Post publisher Katharine Weymouth has decided to solicit payoffs of between $25,000 and $250,000 from Washington lobbyists, in return for one or more private dinners in her home, where lucky diners will receive a chance for “your organization’s CEO” to interact with “Health-care reporting and editorial staff members of The Washington Post” and “key Obama administration and congressional leaders. . . .”

Though the Post’s leadership quickly backed away from the plan, we can only imagine what kinds of fire sales a few more years of economic hardship will bring:

Looks like Dan Froomkin got out just in time!

  July 2, 2009 at 2:30 pm   Posted in: First Amendment, Media Law   Print This Post   Comments (0)

Sidebar Publishes Response to Heinous, Atrocious and Cruel: Apprendi, Indeterminate Sentencing, and the Meaning of Punishment

posted by Columbia Law Review

Columbia Law Review’s Sidebar is pleased to announce the publication of a response to W. David Ball’s article Heinous, Atrocious, and Cruel: Apprendi, Indeterminate Sentencing, and the Meaning of Punishment by Professor Berman of Ohio State University’s Moritz College of Law.

In his article Ball explores the ramifications of Apprendi for indeterminate sentencing systems where parole boards may deny parole based on their findings of fact about the original crime, even when these findings contradict the jury’s.  Ball argues that while parole boards may be competent to make factual determinations about a prisoner’s rehabilitation, juries, as the moral representatives of the community, must find facts related to retribution.

In his response, Professor Berman challenges the idea that modern juries can act as the conscience of the community.  He points out that the vast majority of criminal cases never reach a jury and that restrictions on juries prevent them from being able to effectively express moral condemnation through their findings.  Professor Berman argues instead that in order  to develop sound procedural rules for sentencing we must pay greater attention to rights other than the jury right.

  July 2, 2009 at 9:39 am   Posted in: Uncategorized   Print This Post   Comments (0)

Introducing Guest Blogger Jenia Turner

posted by Daniel Solove

I’m delighted to introduce Professor Jenia Iontcheva Turner who will be guest blogging with us this month. Jenia is an Associate Professor at SMU Dedman School of Law, where she teaches criminal procedure, comparative criminal procedure, international criminal law, and international organizations. Before joining SMU, Jenia served as a Bigelow Fellow at the University of Chicago Law School, where she taught legal research and writing and comparative criminal procedure. She attended law school at Yale, where she was a Coker Fellow and articles editor for the Yale Law Journal and the Yale Journal of International Law. After her first year of law school, she was a summer clerk at the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia, and the following summer, she worked at the Federal Public Defender’s Office in Houston and the New York and Paris offices of Debevoise & Plimpton.

Jenia’s scholarship interests include comparative and international criminal law and procedure. Her articles have appeared in the Virginia Law Review, the Michigan Law Review, the American Journal of Comparative Law, the Virginia Journal of International Law, and the Stanford Journal of International Law. She has just written a textbook exploring plea bargaining from a comparative perspective and is now working on an article about ethical dilemmas of international criminal defense attorneys.

Some recent publications include:

* Defense Perspectives on Law and Politics in International Criminal Trials, 48 Va. J. Int’l. L. 529 (2008)
* Transnational Networks and International Criminal Justice, 105 Mich. L. Rev. 985 (2007)
* Judicial Participation in Plea Negotiations: A Comparative View, 54 Am. J. Comp. L. 199 (2006)

  July 2, 2009 at 4:07 am   Posted in: Administrative Announcements   Print This Post   Comments (0)

July 1, 2009

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Google Book Search Scrutiny

posted by Frank Pasquale

Writing in Slate, Mark Gimein knocks down a number of straw man arguments against the Google Book search deal. I look forward to seeing how he grapples with more serious concerns, like those raised by James Grimmelmann. I’ve also been impressed by Christopher Suarez’s working paper on the need for antitrust scrutiny of the proposed deal . Suarez proposes a number of sensible settlement modifications that I hope the court will take seriously. It doesn’t have much time to get this right, as the following conference announcement shows:
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  July 1, 2009 at 4:29 pm   Posted in: Antitrust, Economic Analysis of Law, Google & Search Engines, Intellectual Property   Print This Post   Comments (0)

Copyright Law as Book Ban

posted by Frank Pasquale

A judge in New York today ruled that Fredrik Colting cannot publish his book, 60 Years Later: Coming Through the Rye, in the US, in part because it “contains a 76-year-old version of Holden Caulfield, the protagonist of ‘The Catcher in the Rye.’” The judge noted:

Both narratives are told from the first-person point of view of a sarcastic, often uncouth protagonist who relies heavily on slang, euphemisms and colloquialisms, makes constant digression and asides, refers to readers in the second person, constantly assures the reader that he is being honest and that he is giving them the truth

Michael Madison has rounded up legal perspectives. It sets up an interesting tension between the opinions in Stallone v. Anderson and the Wind Done Gone case.

Salinger has alienated many potential fans with the lawsuit. Apparently his young protagonist is also not exactly a darling of the youth set anymore:

Teachers say young readers just don’t like Holden as much as they used to. What once seemed like courageous truth-telling now strikes many of them as “weird,” “whiny” and “immature.” . . . Barbara Feinberg, an expert on children’s literature who has observed numerous class discussions of “Catcher,” pointed to a story about a Holden-loving loser in the Onion headlined “Search for Self Called Off After 38 Years.”

“Holden is somewhat a victim of the current trend in applying ever more mechanistic approaches to understanding human behavior,” Ms. Feinberg wrote in an e-mail message. “Compared to the early 1950s, there is not as much room for the adolescent search, for intuition, for empathy, for the mystery of the unconscious and the deliverance made possible through talking to another person.” Ms. Feinberg recalled one 15-year-old boy from Long Island who told her: “Oh, we all hated Holden in my class. We just wanted to tell him, ‘Shut up and take your Prozac.’ ”

And don’t forget the Adderall and Ritalin! Seriously, though, Mr. Salinger might want to take a chill pill and let others imagine futures for the characters he’s created.

  July 1, 2009 at 3:42 pm   Posted in: Intellectual Property   Print This Post   Comments (0)

The True Confirmation “Battle” Begins

posted by Kevin Johnson

President Obama’s nomination of Judge Sonia Sotomayor to the U.S. Supreme Court initially provoked considerable consternation from certain circles, with Rush Limbaugh even characterizing her as a “reverse racist” based on a line taken out of context (for reponses, click here and here) from a speech at UC Berkeley several years ago. 

Little attention was initially paid to the many opinions that she has written since becoming a federal judge in 1992, which makes the evaluation of her nomination much different than that of Chief Justice John Roberts who had just a couple of years of experience on the bench. 

Much of the early hullaballo over the Sotomayor nomination mellowed as Republicans saw where the harsh rhetoric was leading them (basically down the tubes) with Latino voters.  Indeed, there has been a kind of radio silence on the Sotomayor nomination for the last few weeks.

Now, the Term is over.  Justice Souter has walked into the sunset.  And, with the Supreme Court’s decision in Ricci  (see the analysis of that decision from SCOTUSBLOG), the confirmation process should enter a more substantive (and hopefully rational) phase.

Academics and lawyers from a variety of political persuasions have been looking at Judge Sotomayor’s decisions for weeks.  We can expect a variety of diverse views about her joining the lower court opinion in Ricci. 

This all, as my colleague Vik Amar has pointed out, is a fair game in the confirmation process.  We should be looking at a nominee’s work product as a judge and asking questions like this:  did Ricci change the law (as Linda Greenhouse argues) in a way that the Second Circuit (and Judge Sotomayor) could not legitimately do? 

This all could be moot if, as Tom Goldstein opines, the confirmation process is in fact over and Justice Sotomayor alreadt is a done deal.  I am not so sure and look forward to the confirmation hearings in July.  One never knows how things like this might go.  But, given that she would be another historic first on the Court as Thurgood Marshall and Sandra Day O’Connor were, Sonia Sotomayor, I bet, is taking nothing for granted.  Neither am I.  The spectacle of the Clarence Thomas confirmation hearings remain in our collective minds (no, I know of no “smoking guns”).

  July 1, 2009 at 7:51 am   Posted in: Uncategorized   Print This Post   Comments (2)

Perils of a “Lightly Regulated” Insurance Market

posted by Frank Pasquale

I’ve addressed the “ostrich economics” of Gregory Mankiw on this blog before. Mankiw’s “Pitfalls of a Public Option” is yet another contribution to the genre. Mankiw argues that no public option in insurance is necessary, since “We don’t need government-run grocery stores or government-run gas stations to ensure that Americans can buy food and fuel at reasonable prices.” Paul Krugman’s response:

Economists have known for 45 years — ever since Kenneth Arrow’s seminal paper — that the standard competitive market model just doesn’t work for health care: adverse selection and moral hazard are so central to the enterprise that nobody, nobody expects free-market principles to be enough. To act all wide-eyed and innocent about these problems at this late date is either remarkably ignorant or simply disingenuous.

Krugman actually understates just how unconventional the economics of health care can be. Given these divergences from standard market models, Brad Delong may well be right to say that even Friedrich Hayek could approve the idea of a public plan: it’s a way “to use the market as an institutional discovery mechanism.”

Of course, most modern-day Hayekists are more likely to take Mankiw’s view than Delong’s; namely, that “private insurers, lightly regulated to ensure that the market works well, would offer Americans the best health care at the best prices.” We have a sense of how concentrated the private insurance industry and providers are. What exactly does “light regulation” look like in that context?

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  July 1, 2009 at 6:59 am   Posted in: Health Law   Print This Post   Comments (5)

June 30, 2009

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The Environment Goes 0 for 5 in the 2008-2009 Supreme Court Term

posted by Robert Percival

Yesterday the U.S. Supreme Court concluded its 2008-2009 Term. A week ago the Court decided the last of the five environmental cases it heard this Term. The environmental cases involved issues arising under the National Environmental Policy Act, the National Forest Management Act, the Clean Water Act, and the Superfund legislation. In each of these cases the environment lost. The winners were the U.S. military (Winter v. NRDC), the timber industry (Summers v. Earth Island Institute), electric utilities (Entergy Corp. v. Riverkeeper, Inc.), the mining industry (Coeur Alaska v. Southeast Alaska Conservation Council), chemical companies and railroads (Burlington Northern and Santa Fe Ry. Co. v. U.S.). The losers were marine mammals, the national forests, fish living in proximity to power plants and mines, and taxpayers stuck with paying for cleaning up contaminated land.

When a baseball player goes 0 for 5 he has had a bad day. Usually it is quickly forgotten. Few recall Lou Pinella going 0 for 5 in his final game as a Yankee (though he did get the game-winning RBI by not being doubled up at first on a groundout) or Melvin Mora going 0 for 5 in his first game after becoming the father of quintuplets. But 0 for 5 for the environment in the Supreme Court is not so easily dismissed.

For one thing, five Justices voted against the environment in all five cases. It is not hard to guess who they are – Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito. Of that group, only Justice Kennedy seems persuadable in environmental cases (he provided the crucial fifth vote two years ago in Massachusetts v. EPA, the important climate change case). This year’s result again confirms that if you have an environmental case and Justice Kennedy is not with you, you lose.

Not all of the decisions were 5-4. In fact, Justice Ginsburg was the only Justice to dissent in all five cases. Justice Souter, who has just retired from the Court, dissented in every case except for Burlington Northern where the Court by a vote of 8-1 altered Superfund jurisprudence to reduce the share of cleanup costs paid by companies. Justice Stevens wrote the majority opinion in that case. Justice Stevens, a decorated World War II Naval officer, also partially concurred in the Winter v. NRDC decision that dissolved a preliminary injunction against the Navy’s testing of sonar that could harm marine mammals.

Justice Breyer wrote a strong dissent against the Court’s rejection of an environmental group’s standing to challenge forest management regulations in Summers v. Earth Island Institute. But he joined the majority in both the Burlington Northern Superfund case and the Coeur Alaska decision that allowed a mining company to avoid a prohibition on tailings discharges by characterizing them as “fill” because they will fill a lake and kill all the fish. In two of the other environmental cases Breyer partially concurred, advocating remands to reformulate the injunction restricting sonar testing in Winter and to give EPA a chance to explain its shifting views on cost-benefit analysis when setting effluent limits for cooling intake structures in Entergy.

The Court’s environmental decisions show a strong pro-business tilt among five of the Justices, who are concerned that environmental regulations may be unreasonably stringent. They are joined at times by Justice Breyer who also harbors concerns about overregulation, while expressing sympathy for the goals of the environmental laws. The Court continues to have particular antipathy towards the Ninth Circuit, reversing it in four out of the five environmental cases. In the other case (Entergy) it reversed a decision by the Second Circuit that had been authored by Judge Sonya Sotomayor, President Obama’s nominee to replace Justice Souter on the Supreme Court.

Some have argued that the consistent thread running through the Court’s environmental decisions is deference to the government. However, the government was the loser in the Burlington Northern Superfund case and it unsuccessfully opposed Supreme Court review in both the Entergy and Coeur Alaska cases where the Court ultimately ruled in favor of regulatory changes made by the Bush administration. Thus, the Court is being aggressive in setting its own agenda for what environmental cases it will review. So far the Court has agreed to review only one environmental case in its next Term – a decision by the Supreme Court of Florida upholding a beachfront replenishment law against a regulatory takings claim by landowners (Stop the Beach Renourishment v. Florida Dept. of Environmental Conservation). Few anticipated that the Court would agree to hear this case. Its decision to do so may signal renewed interest in reviving regulatory takings doctrine.

Justice Souter’s retirement is unlikely to change the prospects for environmental interests in the Supreme Court. Justice Ginsburg now becomes the most reliable champion of the environment on the Court, but Justice Kennedy will remain the decisive vote in most cases.

  June 30, 2009 at 4:09 pm  Tags: Environment Supreme Court  Posted in: Uncategorized   Print This Post   Comments (3)

Introducing Guest Blogger Kevin Johnson

posted by Frank Pasquale

It is my great pleasure to introduce Dean Kevin R. Johnson, who will be guest blogging with us this July. Johnson is Dean of the School of Law, and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies at the University of California, Davis and is a leading immigration, civil rights, and critical race theory scholar. His book, How Did You Get to Be Mexican? A White/Brown Man’s Search for Identity (1999), was nominated for the 2000 Robert F. Kennedy Book Award. Dean Johnson has also published Complex Litigation: Cases and Materials on Litigating for Social Change (Carolina Academic Press, forthcoming 2009) (with Catherine A. Rogers & John Valery White); Opening the Floodgates: Why America Needs to Rethink Its Borders and Immigration Laws (2007); The “Huddled Masses” Myth Immigration and Civil Rights (2004); Race, Civil Rights, and American Law: A Multiracial Approach (2002); and Mixed Race America and the Law: A Reader (2002), as well as numerous articles on immigration, civil rights, and racial identity.

A graduate of Harvard Law School, where he served as an editor of the Harvard Law Review, Dean Johnson earned his undergraduate degree in economics from UC Berkeley. He is the recipient of many honors and awards, including the Clyde Ferguson Award of the Minority Groups Section of the Association of American Law Schools (2004), Latino Professor of the Year by the Hispanic National Bar Association (2006), and 2008 National Association for Chicana and Chicano Studies Scholar of the Year. In 2003, Johnson was elected to the American Law Institute. He currently serves as president of the board of directors of Legal Services of Northern California and serves on the board of the Mexican-American Legal Defense and Educational Fund. He is co-editor of the ImmigrationProf blog.

Dean Johnson has written more than 50 law review articles. Select recent publications include:
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  June 30, 2009 at 1:58 pm   Posted in: Administrative Announcements   Print This Post   Comments (1)

Consumer Financial Product Safety?

posted by Lawrence Cunningham

The Obama Administration proposes a new federal agency to be called the Consumer Financial Product Safety Commission, designed to contribute prevention to recurrence of financial crises like the current one. Harvard Law Professor Elizabeth Warren gets credit for the idea.

It would regulate things like teaser mortgage interest rates that may induce people to borrow more than they are likely to be able to repay in adverse interest environments. So far, so fine, but proposed legislation suggests it could have a much broader mandate, covering banking, insurance, securities, and including transactions in which people borrow but also save and invest.

It is not obvious why other existing government agencies lack the authority that this agency would assume and, if so, why they failed to exercise it in ways that could have averted the current crisis. But the very breadth of what appears to be the agency’s proposed mandate suggests difficulty deciding what to call it.

The proposed name mimics that given to the Consumer Products Safety Commission, which deals precisely with products people consume. In the financial domain, this analogy does not hold. The title, Consumer Financial Product Safety Commission, may be close to apt, but imperfect, to describe a mortgage loan with a teaser rate: the borrower may in some sense be “consuming,” by using up borrowed funds, a “financial product,” the mortgage loan, and the goal may be to promote “safety,” in some sense.

But that title, even imperfect to describe teaser mortgages, becomes wholly problematic to the extent the agency would get authority to regulate matters like bank accounts, insurance policies or stock portfolios. For that part of the agency’s mandate, something like Retail Investment Quality Commission might be better. Here’s what I mean.

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  June 30, 2009 at 1:34 pm   Posted in: Current Events   Print This Post   Comments (1)

New Developments in Cryptography and Privacy

posted by Deven Desai

According to Help Net Security, Craig Gentry, a researcher at IBM, appears to have found a way to allow “the deep and unlimited analysis of encrypted information - data that has been intentionally scrambled - without sacrificing confidentiality.” The solution involves a an “ideal lattice.” I’ll leave the explanation of all the math to the math/computer science folks. As the Help Net article notes, the solution seems to enable some great advantages for anyone providing cloud computing for:

computer vendors storing the confidential, electronic data of others will be able to fully analyze data on their clients’ behalf without expensive interaction with the client, and without seeing any of the private data. With Gentry’s technique, the analysis of encrypted information can yield the same detailed results as if the original data was fully visible to all.

It all sounds wonderful. One could have encrypted data and let others data mine while maintaining anonymity or privacy. Yet, something seemed odd to me. So I did what lawyers do, I called someone who knew more about computer science and asked for some help. That person explained that yes this could mean one could query an encrypted database without decrypting the data. The example to consider is a database of book purchases. One could ask how many people bought both book A and book B and see that result without ever seeing what a specific person purchased. Great, right? Not so fast.

As this person reminded me, with other sources of information one can figure out what a specific person did. That reminded me of the AOL debacle. With a little work, people were able to figure out who the anonymous subjects were.

All of which highlights that privacy is not binary. The cluster of information and the ability to analyze it seems often, if not always, to lead to problems about the use of information. So if this breakthrough allows a company or the government to claim that we should remain calm and all is well, we may want to remain clam but show how all may not be well. A few regulations about the use of the data even if supposedly anonymous, might allow the beneficial aspects of the solution to thrive while limiting the harms that can occur.

Image: WikiCommons
By: Gwenda; License: Public Domain
(My apologies to CS folks if the image does not match the breakthrough’s area of encryption)

  June 30, 2009 at 11:35 am  Tags: cloud computing, cryptography, Privacy  Posted in: Cyberlaw, Google & Search Engines, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (Law Enforcement), Technology   Print This Post   Comments (5)

Columbia Law Review, Volume 109 Issue 4 (May 2009)

posted by Columbia Law Review

Columbia Law Review, Volume 109 Issue 4 (May 2009)

Articles

An Aggregate Approach to Antitrust:  Using New Data and Rulemaking to Preserve Drug Competition

C. Scott Hemphill

Revealing Choices:  Using Taxpayer Choice to Target Tax Enforcement

Alex Raskolnikov

Notes

Between Healthy and Hartman:  Probable Cause in Retaliatory Arrest Cases

The Lorax State:  Parens Patriae and the Provision of Public Goods

Essay

Federalization Snowballs:  The Need for National Action in Medical Malpractice Reform

Abigail R. Moncrieff

  June 30, 2009 at 10:25 am   Posted in: Law Rev (Columbia), Law Rev Contents, Law School, Uncategorized   Print This Post   Comments (0)

June 29, 2009

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Canonical Statutes

posted by Gerard Magliocca

There’s been a lot of discussion recently about the idea that certain statutes (whether you call them canonical, super-statutes, or super-duper statutes) are now part of the Constitution.  This idea comes from the British Constitution, where certain statutes (The Reform Act of 1832, the 1911 Parliament Act) are considered fundamental and not subject to repeal even though formally they could be.

I tried to put together a list of what statutes might qualify for this exalted status.  Here’s what I came up with:

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  June 29, 2009 at 5:41 pm   Posted in: Jurisprudence   Print This Post   Comments (10)

Improving the Grant System with Prizes

posted by Michael Abramowicz

In a front-page article in yesterday’s New York Times, Gina Kolata argues that the system of awarding grants for cancer research unduly favors research projects that make incremental advances over projects that have a smaller probability of achieving more fundamental breakthroughs by challenging established dogmas. This particular problem is part of a broader problem: Decisions on grant funding are not made using cost-benefit analysis or any systematic methodology for assessing which projects are the most promising. And that in turn is part of a broader problem still: Granting agencies don’t have much incentive for identifying the procedures that are likely to lead to the socially best allocation of research dollars.

At a bare minimum, grant-granting institutions ought to generate probability distributions of different levels of benefit for alternative proposed projects. I suspect that resistance to such an approach stems from recognition that any subjective estimates of both probabilities and benefits are likely to be somewhat arbitrary. How can even an expert scientist know that there is either a 1% or a 5% chance that an experiment testing an unorthodox claim will be successful? And that difficulty pales in comparison to the challenge of assessing the benefits of experiments. We might be able to estimate the benefits of a cure for cancer, by estimating the effects of a cure on quality-adjusted life years, but it is difficult to assess how far toward that goal any particular successful experiment will bring us. The task is made still more complicated by the fact that some experiments will be valuable not because they confirm either the experimenters’ or skeptics’ views, but because they produce some entirely serendipitous discoveries.

My view is that grant decisions will be better if we force scientists making assessments to give their best subjective estimates, ultimately producing a probability distribution of different possible benefit levels, even if such numbers are inherently subjective. It seems unlikely that intuitive decisionmaking will produce better results than more rigorous approaches. Scientists may worry that quantification would discourage investments in basic research relative to more applied research. The reverse seems likely to be true. The more foundational the research, the greater the potential benefits to which it may contribute, and this factor seems likely to outweigh the fact that any single highly theoretical experiment may provide only a small bit of progress. Whether I’m right or wrong about this, allocation decisions ideally should be based on rigorous analysis of this question, or at least on moderately developed back-of-the-envelope calculations, rather than on pure intuition.

One objection is that any system that the government or indeed any bureaucracy develops for making more mathematically rigorous assessment of grants may be flawed by ignoring important criteria that scientists may take into account implicitly. But it need not be government that is charged with making these estimates. An alternative to the grant system would flip government’s role to ex post evaluation of benefits and costs. Twenty-five years from now, it should be much easier for scientists to assess the relative benefit of experiments conducted today. Instead of grants, the government could place grant money into a prize fund, let it accumulate interest, and distribute the money later. This approach would give private parties, akin to venture capitalists, incentives to anticipate the benefits of research. At the least, such parties should be less risk averse than the grant agencies that Kolata describes.

This may seem too radical a change from our existing system of scientific funding. But it is possible to integrate a modest version of this system within the existing grant system. For example, we might set aside just 10% of current grant money for a prize fund. Private parties would be required to auction their rights to any prize to independent third parties, conditional on the grants being approved. The grant agency might then consider the results of the auctions, in addition to any information they ordinarily would consider. At the least, this could help provide the grantors cover for approving low-probability, high-benefit projects. Moreover, the practices of the third parties-What kind of models do they use? What kind of disclosure do they expect from grant applicants?-might help us identify how we could improve the government’s own procedures. Whether or not the auction participants do a better job than the government (and with relatively small stakes, they might not), the types of projects they select with their own money on the line could help inform the government about what its decisionmakers’ biases might be.

  June 29, 2009 at 12:33 pm   Posted in: Administrative Law   Print This Post   Comments (4)

June 28, 2009

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Climate Change Legislation

posted by Robert Percival

On Friday the U.S. House of Representatives approved the American Clean Energy and Security Act of 2009, a bill to establish a far-reaching program to control U.S. emissions of greenhouse gases (GHGs). The vote was 219-212 with only eight Republicans voting in favor of the bill and 44 Democrats opposing it. The bill adopts a cap-and-trade program designed to reduce U.S. GHG emissions by 17% below 2005 levels by the year 2020, and by 83% by 2050.

The bill seeks to fulfill an important campaign promise by President Obama by having the U.S. join the ranks of all other developed nations who have committed to control their GHG emissions to reduce the severity of climate change. President Obama has asked Congress to enact such legislation by December when the nations of the world will meet in Copenhagen to adopt a successor to the Kyoto Protocol.

To win acceptance in the House many compromises had to be made. Instead of auctioning off all emissions allowances, as President Obama had advocated, the bill distributes 85% of them for free to various entities, including electric utilities, in order to reduce their compliance costs. To mollify farm interests, it gives the Department of Agriculture, instead of EPA, responsibility for certifying by projects that offset GHG emissions. A few environmental groups, such as Greenpeace, opposed the legislation as not strong enough, but most argued that it is better than not having any legislation to control GHG emissions.

The debate on the House floor, and the near party-line vote, illustrated how polarized the debate over climate change has become. Some opponents of the bill denounced the concept of climate change as junk science and argued that the legislation would cripple an economy that already is reeling. I was reminded of the dire predictions made by the opponents of the 1990 Clean Air Act Amendments, which established a national cap-and-trade program to reduce emissions of sulfur dioxide. Opponents of that legislation, citing a group of Nobel prize-winning economists, also forecast dire economic consequences and argued that the U.S. could not afford it on the eve of the first Gulf War. Yet that legislation has produced enormous net benefits, as even OMB agrees.

The bill now faces a difficult fight in the U.S. Senate where it will be necessary to win 60 votes to overcome a Republican filibuster. Legislation that imposes short-term costs for long-term benefits is always a difficult political sell. Thus, many environmental laws were adopted only after highly publicized environmental disasters and Congress often exempts existing sources from new pollution controls. A basic flaw in the original Clean Air Act was that it indefinitely exempted existing power plants from the new pollution control standards it imposed on new plants. This encouraged companies to go to extraordinary lengths to extend the lives of existing plants, causing far more pollution than anticipated. A much better approach was adopted by Congress in the Oil Pollution Act when it phased in new double hull requirements for oil tankers based on the age of existing ships.

The climate bill approved by the House responds to concerns that countries that fail to control their GHG emissions could gain a competitive advantage over U.S. industries by authorizing a form of carbon tariffs to protect industries that face such competition. In a report issued on Friday, the World Trade Organization (WTO) and the UN Environment Programme (UNEP) suggested that carbon tariffs may be acceptable under existing WTO rules to level the playing field between domestic industries that have to control their GHG emissions and foreign competitors who do not. A copy of the report, WTO & UNEP, Trade and Climate Change (2009), is available at http://www.wto.org/english/res_e/booksp_e/trade_climate_change_e.pdf.

  June 28, 2009 at 8:54 pm  Tags: environment climate  Posted in: Uncategorized   Print This Post   Comments (1)

Supreme Court Highlights

posted by Sarah Waldeck

A practicing attorney I know has been asked to make a CLE presentation on the ten most important Supreme Court cases from the 2008-2009  term.  I’m wondering what cases CoOp readers would put on the list.  Please comment!

  June 28, 2009 at 8:48 pm   Posted in: Uncategorized   Print This Post   Comments (6)

The Great Recession

posted by Gerard Magliocca

Consider some recent political events:

1.  Civil unrest in Iran.

2.  The Honduran military arrests the country’s President and gives him a free trip out of the country.

3.  China (at least according to Friday’s Washington Post) launches a crackdown on human rights lawyers by letting their bar licenses “lapse.”

4.  Vietnam arrests a leading human rights lawyer and charges him with treason (last week)

5.  Thailand continues to face turmoil between supporters and opponents of ex-Prime Minister Thaksin (that started last fall with the airport shutdown, but it’s still going on).  

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  June 28, 2009 at 9:04 am   Posted in: Current Events   Print This Post   Comments (2)

June 27, 2009

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The Six Stages of Scandal

posted by Gerard Magliocca

The Sanford tango gives me an excuse to repeat this classic from Mickey Kaus, which works for almost any political scandal.

Stage 1:  That’s ridiculous.  It can’t possibly be true.

Stage 2:  It’s not true.

Stage 3:  You can’t prove it’s true.

Stage 4:  Why are you trying to prove it’s true?

Stage 5:  It’s disgusting that you proved it’s true.

Stage 6:  What’s the big deal anyway?

  June 27, 2009 at 11:14 am   Posted in: Humor   Print This Post   Comments (1)

The Rationing Scare

posted by Frank Pasquale

The opposition to real health reform boils down to two lines of attack: 1) the government will spend too much money and bankrupt us or 2) the government will spend too little money and ration our care. To the extent I can find people who make the first point while also opposing the many recent tax giveaways to the very wealthy, I’ll try to engage them. The rationing point is more interesting, but needs to compare reform proposals to the status quo–not some big rock candy mountain of free and fabulous care for all.
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  June 27, 2009 at 10:08 am   Posted in: Health Law, Uncategorized   Print This Post   Comments (0)

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