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Climate Change, FERC, and Natural Gas Pipelines: The Legal Basis for Considering Greenhouse Gas Emissions Under Section 7 of the Natural Gas Act
Get PDFAs the federal agency charged with overseeing the interstate transportation of natural gas, the Federal Energy Regulatory Commission (FERC) has recently faced growing criticism over its approval of new pipelines. Critics have lambasted FERC for failing to adequately consider the climate change impacts of pipeline development, particularly the greenhouse gas emissions associated with “upstream” natural gas production and “downstream” use. The D.C. Circuit recently weighed in, holding that the National Environmental Policy Act (NEPA) requires consideration of downstream greenhouse gas emissions, at least in some circumstances. The precise scope of that requirement continues to be debated before FERC, in the courts, and among scholars. While recognizing the importance of that debate, this Article approaches the issue from a different perspective, contending that the Natural Gas Act (NGA) establishes an independent requirement for FERC to consider climate change impacts, including upstream or downstream greenhouse gas emissions. To support that contention, the Article offers an in-depth look at the history of Section 7 of the NGA, and its interpretation by the courts. It also provides a comprehensive analysis of how environmental factors are dealt with by FERC, showing that the Commission historically viewed downstream environmental impacts as a key factor to be considered under section 7 of the NGA, but now largely ignores them. That is not only poor policy, but also violates section 7. FERC must, therefore, change its current approach to evaluating pipeline projects. That change could have significant implications for the approval of future projects since, after accounting for environmental impacts, FERC may be unable to conclude that a project is required by the public convenience and necessity
Disinformation in the Marketplace of Ideas
Get PDFIt was just one line, nearly a throwaway; technically a subordinate clause. Yet that one clause from Oliver Wendell Holmes’s Abrams dissent breathed life into a metaphor, the “marketplace of ideas,” whose lasting power is undeniable. Nor is it difficult to understand why. Yes, it may be incomplete, inaccurate, and possibly cribbed from John Stuart Mill, but the metaphor matches something we all see. Ideas and ideological programs are out there looking for adherents or “buyers.” In Holmes’s time, progressives, socialists, and fascists courted supporters, just as similar groups do now. Specific ideas like the flat tax or the legalization of marijuana seek their own buyers and usually go nowhere but may suddenly catch on, just as in the world of real products.
I leave it to others to criticize the metaphor. What I want to suggest here is that it isn’t taken seriously enough. Despite all the talk, the First Amendment offers incomplete protection for the marketplace of ideas. If we were halfway serious about the premise that the marketplace of ideas needs protection by courts, we’d be interested in all the ways that government or private parties can distort or block competition. But the First Amendment has no interest in most such distortions – especially those created by disinformation campaigns, which have rapidly become the speech control technique of choice in the early 21st century
Do We Need a New Conception of Authorship?
Get PDFThank you to the organizers for having me. I’m delighted to be here. I’m going to take a step away from conceptual art, and go a little bit into history and a little bit into doctrine – and do the usual law professor thing. We law professors like to say that one of the great things about the job is that we get to overrule the Supreme Court ten thousand times a day, but the bad thing about the job is no one cares. And so, I’m going to try and make this such that you care.
Here’s the core idea that I want to suggest: that one of the concerns that we have with conceptual art going forward, and with the question of copyrightability, is that copyright law, for a really long time now, has had a nascent and unstated theory of authorship that connects to the way in which we conceptualize the connection between inputs and outputs, agency in the real world, and the nature of the human connection to the work – and that these works of conceptual art are calling that theory into question. And part of the concern is that this test and this conception, being unstated – when we take a step back to try and understand how we might update it or liberate it from these conceptions, we have a hard time wrestling with it, to nail it down. And so, what I want to leave you with is the question of whether it’s time to update our traditional conception of authorship
Public Health Law Tools: A Brief Guide
Get PDFThe COVID-19 pandemic offers a threat with few precedents in modern times and tests the tools of modern surveillance and public health law. The goal of this chapter is to provide a brief overview of the types of measures that state and federal governments can invoke to treat and prevent the spread of infectious disease. The following sections will provide an orientation to domestic public health law followed by the types of measures available to state and federal public health authorities.
Although this chapter does not consider international institutions, treaties, or norms that affect public health, these are also essential to the overall pandemic response
Copyright as Legal Process: The Transformation of American Copyright Law
Get PDFAmerican copyright law has undergone an unappreciated conceptual transformation over the course of the last century. Originally conceived of as a form of private law – focusing on horizontal rights, privileges and private liability – copyright law is today understood principally through its public-regarding goals and institutional apparatus, in effect as a form of public law. This transformation is the result of changes in the ideas of law and law-making that occurred in American legal thinking following World War II, manifested in the deeply influential philosophy of the Legal Process School of jurisprudence which shaped the modern American copyright landscape. In the Legal Process conception, determining the substantive content of the law is fundamentally a matter of identifying the institution with formal competence (and legitimacy) to decide the matter, and then deciphering its policies and directives for an area of law in a purposive manner. The heyday of the Legal Process School, the 1950s and 1960s, coincided with the period during which the current U.S. copyright regime was being constructed. Several of its core lessons find direct veneration therein, including: the centrality of legislation as the harbinger of copyright’s policy and purposes, the primacy of collectivist copyright policy over individual copyright principles, a recognition of the limitations of courts and judge-made law, and the treatment of copyright as a specialized but autonomous body of law requiring expert administering. As this Article argues, the U.S. copyright regime is today better conceived of as a “legal process,” wherein the law is dynamic, purposive, and multi-institutional in origin. Modern copyright thinking would do well to embrace this reality and develop mechanisms to deal with this fundamental – yet unacknowledged – transformation, which explains a variety of perceived anomalies and puzzles within the working of the system
\u3cem\u3eFurman\u3c/em\u3e\u27s Legacy: New Challenges to the Overbreadth of Capital Punishment
Get PDFA 2018 decision in the Arizona Supreme Court raised new strong claims that the death penalty in the U.S. has become a fatal lottery, with critical implications for its constitutionality and its future in American criminal law. In the case, Hidalgo v. Arizona, the defense provided preliminary evidence that over the past twenty years, nearly 98% of all first- and second-degree murder defendants in Maricopa County-the state\u27s largest county and location of the nation\u27s fifth largest city-were death-eligible. The Arizona Supreme Court conceded this point even as it rejected Mr. Hidalgo\u27s appeal. What the Arizona Supreme Court conceded, and what the evidence showed, was the expansive criteria for death eligibility made it impossible for states to perform the \u27constitutionally necessary\u27 narrowing function at the stage of legislative definition to prevent a pattern of arbitrary and capricious sentencing
Global Investor Protection: Securities Law Enforcement Around the World
Get PDFToday\u27s topic is a great one – one that is of central importance to the fairness of our markets and their integrity. The Securities and Exchange Commission (SEC) and the U.S. system of protecting the integrity of capital markets have long been seen as the gold standard. But does that continue to be true? Are there other systems and models that are, in fact, better than what we do here in the United States? We, of course, are filled with flaws and shortcomings of our own
Biden Administration Will Reverse Many Trump Environmental Policies
Get PDFWhen Joseph R. Biden, Jr. is inaugurated as the 46th President of the United States on January 20, he will reverse many of the environmental actions taken by President Donald Trump. Some of this he can and probably will do immediately, possibly on Inauguration Day; other actions will have to go through administrative processes that will take several months, at least. The Trump Administration neither secured nor repealed almost any environmental legislation even while Republicans controlled both the House and the Senate, and little it did in this area is irrevocable
Election 2020 Sees Record $11 Billion in Campaign Spending, Mostly From a Handful of Super-Rich Donors
Get PDFTotal spending in the 2020 federal elections is projected to set a new record of almost US$11 billion by November.
When adjusted for inflation, that’s over 50% higher than 2016 election spending. This year’s federal election spending – for the presidency, the Senate and the House of Representatives – is on track to be double what it was in 2008.
The surge in campaign spending is striking. But my research on campaign finance regulation suggests the volume of election spending is not the main problem with the U.S. campaign finance system.
The real challenge for American democracy is where this money comes from
Private and Public Law
Get PDFThis chapter explores the relationship between private and public law. In civil law countries, the public-private distinction serves as an organizing principle of the entire legal system. In common law jurisdictions, the distinction is at best an implicit design principle and is used primarily as an informal device for categorizing different fields of law. Even if not explicitly recognized as an organizing principle, however, it is plausible that private and public law perform distinct functions. Private law supplies the tools that make private ordering possible — the discretionary decisions that individuals make in structuring their lives. Public law is concerned with providing public goods — broadly defined — that cannot be adequately supplied by private ordering. In the twentieth and twenty-first centuries, various schools of thought derived from utilitarianism have assimilated both private and public rights to the same general criterion of aggregate welfare analysis. This has left judges with no clear conception of the distinction between private and public law. Another problematic feature of modern legal thought is a curious inversion in which scholars who focus on fields of private law have turned increasingly to law and economics, one of the derivatives of utilitarianism, whereas scholars who concern themselves with public law are increasingly drawn to new versions of natural rights thinking, in the form of universal human rights