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Harmonizing Distributed Energy and the Endangered Species Act
No full textarticle published in law journalThis Article explores the intersection of utility-scale wind power development and the Endangered Species Act, which thus far has not been as happy a union as one might expect. Part I provides background on how the ESA and wind power have met in policy, permitting, and litigation. Part II then examines whether wind power (and other renewable energy sources) can and should receive a “green pass” under the ESA given its unquestioned climate change mitigation benefits, concluding that doing so would face a host of legal and policy concerns. Part III then outlines a model for administrative innovation of ESA programs centered on facilitating business risk management in renewable energy infrastructure projects
Vanderbilt Hustler; Vol. 125 Iss. 4 January 17, 2013
No full textThe official student newspaper at Vanderbilt University
Vanderbilt Hustler; Vol. 125 Iss. 6 January 24, 2013
No full textThe official student newspaper at Vanderbilt University
Vanderbilt Hustler; Vol. 125 Iss. 15 February 25, 2013
No full textThe official student newspaper at Vanderbilt University
Vanderbilt Hustler; Vol. 125 Iss. 26 April 15, 2013
No full textThe official student newspaper at Vanderbilt University
Statutory Interpretation from the Inside--An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I
No full textpublished article in law reviewWhat role should the realities of the legislative drafting process play in the theories and doctrines of statutory interpretation and administrative law? The ongoing debates frequently turn on empirical assumptions about how Congress drafts and what interpretive rules Congress knows, but there has been almost no testing of whether any of these assumptions reflect legislative reality. We have attempted to fill that void. This is the first of two Articles reporting the results of the most extensive empirical study to date — a survey of 137 congressional counsels drawn from both parties, both chambers of Congress and spanning multiple committees — on topics ranging from drafters’ knowledge and use of the textual and substantive canons of interpretation, to legislative history, the administrative law deference doctrines, the legislative process and the Court-Congress relationship.
Our findings have implications for virtually every swath of the interpretive debates. We can report, for instance, that there are some canons that our drafters know and use — Chevron and the presumption against preemption, for example, but that there are other canons that our drafters know, but consciously reject in favor of political or other considerations, including the presumption in favor of consistent usage, the rule against superfluities, and dictionary use; and still other canons, like Mead and noscitur a sociis, that our drafters do not know as legal rules but that seem to be accurate judicial reflections of how Congress drafts. Our interviews also elicited a treasure trove of information about key influences on the drafting process that legal doctrine rarely considers, from the variety of audiences for legislative history, to the way in which the personal reputation of particular agency heads affects delegation decisions, to the fact that drafting conventions depend on the type of statute being drafted and its path through Congress.
All of these findings, and many others, allow us to press for a more precise answer to one of the fields’ foundational questions: that is, what should be the purpose of these canons of interpretation? Judges, often using the unhelpful generalization that they are Congress’s “faithful agents,” have legitimized these doctrines using a variety of conflicting justifications, some of which turn on empirical reality, some of which do not, and most of which aim to justify many different types of canons that seem to be doing very different types of work. Do the canons reflect how Congress actually drafts, and so effectuate legislative supremacy? Or do judges use the canons for more dialogical reasons, such as to encourage Congress to draft more precisely — and does Congress listen? Might the canons, despite how "neutral" some appear, instead be understood to effectuate judicial values that are external to the legislative process — such as advancing constitutional norms or imposing coherence on the U.S. Code? Our study illuminates this variety across the normative bases for the canons also reveals that each set of justifications rests on a very different vision of the judicial power and the Court-Congress relationship
The Importance of Latin American Studies to the Inter‐American Project
No full textA thirteen-page paper issued the Center for Latin American Studies. The paper has series number 12 but constitutes no. 14 of the Occasional paper series
Preemption and Choice-of-Law Coordination
No full textarticle published in law reviewThe doctrine treating federal preemption of state law has been plagued by uncertainty and confusion. Part of the problem is that courts purport to interpret congressional intent when often Congress has never considered the particular preemption question at issue. This Article suggests that courts deciding preemption cases should take seriously a commonly articulated rationale for the federalization of law: the need to coordinate applicable legal standards in order to facilitate a national market or to otherwise provide
clear guidance to parties regarding the laws that apply to their conduct. In situations where federal law can serve a coordinating function but congressional intent regarding preemption is unclear we propose that courts consider whether the states have effectively allocated sovereign authority among themselves through choice-of-law rules. Where states have achieved such "horizontal coordination," Congress often has little need to
usurp the states' role as laboratories or experimenting with potentially diverse
substantive laws. Our approach would help to promote a "healthy federalism" by encouraging courts to preserve the benefits of local and state sovereignty while simultaneously enabling federal statutes to coordinate U.S. law where necessary. To show how our approach might improve preemption decisions, we apply it to several areas in which the courts have struggled. Although our approach provides a conceptually obvious, and therefore elegant, solution to many preemption problems, to date it has
been entirely unexplored
Liberty's Safety Net
No full textarticle published in law journalI am honored and humbled by the breadth and depth of the responses to my essay on judicial activism, including Richard Epstein's very generous introduction. Each of the contributors has packed a tremendous amount of insight and information into an impossibly limited number of words, and the comments will be extremely useful as I go forward with the project of turning the original essay into a book. My essay might be characterized as a rhetorical call to arms, an undifferentiated embrace of judicial activism. Three of the commentators provide very helpful substantive support for the call to arms,
and two others off er refinements that call into question the lack of differentiation. I consider all five to be friendly amendments to my motion for increased judicial activism, and will therefore consider them relatively briefly
Vanderbilt Hustler; Vol. 125 Iss. 8 January 31, 2013
No full textThe official student newspaper at Vanderbilt University