Hauptman-Woodward Medical Research Institute
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Toward a Universal Understanding of the Value of Legal Research Education
Get PDFReviewing Caroline Osborne, The State of Legal Research Education: A Survey of First-Year Legal Research Programs, or Why Johnny and Jane Cannot Research
Agency in State Agencies
Get PDFPublished as Chapter 5 in Distributed Agency, N. J. Enfield & Paul Kockelman, eds.
The democratic state is an administrative state: the actual work of representative governance is done primarily in administrative agencies, which interpret and implement the often vague ambitions inscribed in statutes. When we talk about agency in the state, then, we must primarily be talking about agency in agencies. That may seem odd. Bureaucracy seems like the absence of agency: just mechanistic gear-grinding continuing things begun by other, distant, powerful actors. Where can agency find a foothold amid the faceless people, the featureless buildings, the infinite red tape, the endless unread files? So, another oddity: administration has world-changing effects, yet seems bereft of agents. Infuriatingly — yet conveniently — bureaucracy appears as an undifferentiated entity exerting power that cannot be held to account.
This common image, it turns out, distorts our understanding of both agencies and agency. It conceals the complex distribution of possibility and responsibility within bureaucracy, which involves individual subjectivities, interpersonal relations, and socially structured decisionmaking (Blau 1963; Bernstein 2008). And it obscures the varied ways that accountability for bureaucratic action is structured by different social arenas allow. What kind of accountability is available, it turns out, depends on the position from which one does the accounting. Here, I unpack one administrative process to show how units of agency emerge and blend in the ongoing process of differentiation and subsumption that characterizes bureaucratic action. I then explain how one particular social arena — litigation — provides a scaffolding for bureaucratic accountability that, like all scaffoldings, both enables and constrains.https://digitalcommons.law.buffalo.edu/book_sections/1010/thumbnail.jp
The Paradigm Sways: Macroeconomics Turns to History (reviewing three titles)
Get PDFReviewing Markus K. Brunnermeier, Harold James & Jean-Pierre landau, The Euro and the Battle of ideas (2016); Martin Wolf, The Shifts and the Shocks: What We\u27ve Learned—And Still Have to Learn—From the Financial Crisis (2014); and Mervyn King, The End of Alchemy: Money, Banking, and the Future of the Global Economy (2016)
Bleached! The Catastrophe Management of Corals
Get PDFCorals have recently emerged as both a sign and a measure of the imminent catastrophic future of life on earth and, as such, have become the focus of intense conservation management. Bleached! draws on in-depth interviews and participatory observations with coral scientists and managers to explore the management of the corals’ ecological catastrophe to come. The article starts by describing the unique life of corals, the importance of calculability in catastrophe management, and the coral scientists’ preoccupation with classifying, counting, and seeing in their attempt to comprehensibly monitor corals and anticipate their decline. Algorithmic models and elaborate temporal analyses are central to this governmental project of “knowing bleaching.” What happens after such bleaching events are foreseen is the topic of my next exploration, which highlights the emergence of yet more monitoring as the central coral conservation “action” in the face of the looming catastrophe. The “resilience” concept is of growing importance in the world of coral management. Since it underlines unpredictability and nonlinearity, resilience as well seems to fly in the face of any anticipatory action, instead scientifically justifying forms of inaction. Finally, Bleached! discusses the heated debates among coral scientists about whether to focus present actions on “buying time” for corals, or whether the only way to prevent or limit imminent coral catastrophe is to deal directly with the elephant in the room: the global regulation of climate change. I argue that, in the case of corals at least, scientific knowledge is not power. Quite the contrary, the real political story here seems to lie in the ways in which scientists’ knowledge is neutralized and prevented from having political effects, such that it does not lead to anticipatory action to restore the ecological order. As one of the prominent coral scientists I interviewed for this project put it: current conservation efforts are akin to reorganizing the chairs on the Titanic, rather than to changing the ship’s deadly course
Mineral Estate Conservation Easements: A New Policy Instrument to Address Hydraulic Fracturing and Resource Extraction
Get PDFIn a few short years, hydraulic fracturing has transformed the oil and natural gas industries and changed the landscape of energy policy, while generating major conflicts over local land use decisions. Individuals and communities have turned to the law to restrict oil and natural gas production with mixed success. While little explored, there is also potential for private efforts to restrict fracking.
We propose a novel tool, the Mineral Estate Conservation Easement (MECE), to provide landowners with the ability to restrict hydraulic fracturing and other oil and gas subsurface activities in areas of particular social or ecological vulnerability. The article assesses whether a MECE is compatible with current state conservation easement acts, whether it would qualify for a tax deduction, and legislative actions that would strengthen the status of MECEs.
Overall, we find that MECEs hold great potential as a private land use tool to restrict hydraulic fracturing in specific settings. While its legal status is well supported in most jurisdictions, in others uncertainty remains, though this could easily be remedied in most cases with minor statutory or regulatory amendments
Enhancing Conservation Options: An Argument for Statutory Recognition of Options to Purchase Conservation Easements (OPCEs)
Get PDFThe most dynamic component of the conservation movement in the United States for the past three decades has been land conservation transactions. In the United States, land conservation organizations have protected roughly 40 million acres of land through transactions. Most of these acres have been protected using conservation easements. Climate change threatens the vast conservation edifice created by land conservation transactions. The tools of land conservation transactions are, traditionally, stationary. Climate change means that the resources that land conservation transactions were intended to protect may no longer remain on the land protected. Options to purchase conservation easements (OPCEs) have long played a modest but important role in conservation law practice. In the world climate change is creating, with its substantial uncertainties and shifting windows of opportunity, OPCEs can serve more complicated and strategic purposes. The ability of OPCEs to serve important roles in protecting land in the context of uncertainty would be significantly increased if state legislatures amend current conservation easement statutes to (1) specifically recognize OPCEs, (2) immunize OPCEs from a range of potential common law challenges, (3) guarantee the durability and transferability of OPCEs, and (4) integrate OPCEs into the burgeoning body of conservation easement law. These statutory amendments would do for OPCEs what conservation easement statutes have done for conservation easements: transform them into an essential multi-purpose tool for conservation in a changing world
Capital Punishment of Unintentional Felony Murder
Get PDFUnder the prevailing interpretation of the Eighth Amendment in the lower courts, a defendant who causes a death inadvertently in the course of a felony is eligible for capital punishment. This unfortunate interpretation rests on an unduly mechanical reading of the Supreme Court’s decisions in Enmund v. Florida and Tison v. Arizona, which require culpability for capital punishment of co-felons who do not kill. The lower courts have drawn the unwarranted inference that these cases permit execution of those who cause death without any culpability towards death. This Article shows that this mechanical reading of precedent is mistaken, because the underlying justifications of Eighth Amendment jurisprudence require a rational selection for death of only the most deserving and deterrable offenders, and this in turn requires an assessment of culpability. We argue that the Supreme Court should address this open question in Eighth Amendment law and that it should correct the lower courts by imposing a uniform requirement of at least recklessness with respect to death for capital punishment of felony murder
