Blog

Environmental Law: The Future of Cost-Benefit Analysis in Environmental Policy
Thursday, Nov. 12
2:00 p.m. – 3:30 p.m.
East and State Rooms

– Hon. Susan E. Dudley, Director, George Washington University Regulatory Studies Center
– Mr. Michael A. Livermore, Executive Director, New York University School of Law Institute for Policy Integrity
– Mr. Daryl L. Joseffer, Partner, King & Spalding
– Ms. Lisa E. Heinzerling, Senior Policy Counsel, Office of the Administrator, U.S. Environmental Protection Agency
– Moderator: Hon. Stephen F. Williams, U.S. Court of Appeals, D.C. Circuit

Note: Ms. Heinzerling is not present.

Hon. Susan E. Dudley, The George Washington University Regulatory Studies Center

CBA is here to stay. President Obama has signaled that it will stay.

The question is not whether but how will it stay?

Statutory constraints and moral and institutional restraints already contribute

CBA is a transparent framework for avoiding that the “squeakiest wheel” wins (ie. lobbyists)

Obama Admin

1 The role of distributional effects has been a part of regulatory impact guidelines and will continue

Not just this generation against next, but the core of what’s best for this generation

2 Not going straight to central control, but nudging people toward making choices

3 We can frame choices to encourage people to do what’s best for them

Problem is: are people rational?

We can know what a person’s utility is if we observe their decisions

We should be cautious about allowing government analysis to decide the cost/benefit analysis for individuals in areas where individuals should be making their own analyses

More, after the jump

Ms. Lisa E. Heinzerling, US Environmental Protection Agency

Could not attend today.

Mr. Daryl L. Joseffer, King & Spalding

Cost-benefit analysis is just a matter of figuring out whether the benefits exceed the harms

For example, the higher costs of a better smoke detector

Legal landscape of CBA

-Congress tells an agency to do a CBA

-Congress tells an agency not to do a CBA (it has done that itself)

-More commonly, Congress will suggest a more flexible standard

Supreme Court decisions previously held that agencies were limited to the legislative language specifically

Riverkeep decision means that going forward agencies have freedom to do or not do one, but must provide defense if they choose not to use CBA

Mr. Michael A. Livermore, New York University School of Law Institute for Policy Integrity

There are several areas where CBA is likely to evolve

-Distributional effects of regulation, analyzing who’s winning and losing, not just looking at macro-effects

-Very difficult analytic task to look at who’s being affected, but manageable and will see growth

We will also likely see growth in behavioral economics, especially in the wake of the market meltdown

Perception of risk by individuals often differs from the attitudes of experts in fields

(Ex. Nuclear power—looking at expert counsel would suggest fewer regulations, but greenhouse gas emissions—expert counsel would suggest increased regulation)

There is a broad consensus that it’s a good idea to evaluate regulations

-In US, almost all analysis takes place before regulation, but growing support for retrospective analysis

CBA is not going anywhere, but there are lots of areas in which it will probably change in interesting ways

The Obama Admin will look to make an imprint in the process of regulatory

Pics after the jump

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Intellectual Property: Intellectual Property and Economic Growth
Thursday, Nov. 12
11:30 a.m. – 1:45 p.m.
Chinese Room

– Prof. Richard A. Epstein, James Parker Hall Distinguished Service Professor of Law and Visiting Professor of Law, New York University Law School
– Prof. F. Scott Kieff, The George Washington University Law School
– Prof. Michael J. Meurer, Michaels Faculty Research Scholar, Boston University School of Law
– Mr. Daniel B. Ravicher, President and Executive Director, Public Patent Foundation
– Moderator: Prof. Mark F. Schultz, Associate Professor of Law, Southern Illinois University School of Law

[youtube=http://www.youtube.com/watch?v=OzWEw4WHFNQ]

Professional Responsibility: The Role of Government Attorneys and the Global War on Terror
Thursday, Nov. 12
2:00 p.m. – 3:30 p.m.
Grand Ballroom

– Mr. Miguel A. Estrada, Partner, Gibson, Dunn & Crutcher, LLP
– Prof. W. Bradley Wendel, Cornell University Law School
– Moderator: Hon. Diane S. Sykes, U.S. Court of Appeals, Seventh Circuit

Wendell

Concern of politcal battle, chilling on lawyers to enter into government service. Legal ethics in advisory positions can build on notions of the rule of law. Will not rely on distinction between government lawyers and private lawyers.

Litigators may be free to offer more creative interpretation of law as opposed to advising and planning. Different legal roles have different obligations depending on the context.

Look at litigation and enforcement actions against private actions to derive set of ethical principles.

Common feature of ethics fiascos is unholy alliance between Critical Legal Studies and Public Choice Theory. Lawyers should pursue interests of clients as long as they are lawful. But lawful is understood with implicit notice of indeterminacy. Creative and talented lawyers can play around with barriers of the law. Not much stands in way of client interest.

Michael Hayden, Director of National Intelligence: “We will live on the edge. My spikes will have chalk on them.” Isn’t the role of lawyers to provide creative legal advice?

Consider agency relationship of lawyer-client relationship. Invoking common law nature of agency. Agents only have authority ot act where there is an entitlement. Authority introduces dimension of normativity between power and lawful power. Nature of lawyers role is to respect power unmodified and lawful power.

CLS and Determinacy. Essential to understanding ethical obligations need view of objectivity and determinancy of the law. Lawyers need to diverge on spectrum of interpretations.

Miguel Estrada

Gave lengthy comments about John Yoo.

[youtube=http://www.youtube.com/watch?v=UwKKaWQ7MiI&feature=player_embedded]

More after the jump

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Very interesting article from Professor Krishnakumar

How do canons of statutory interpretation come into being? What qualifies a court’s method of reasoning in a statutory case as a rule or canon of construction? Last week, I wrote about the Supreme Court’s use of the passive voice as an interpretive guide in two somewhat recent criminal cases. Does this mean that we now have a “passive voice” canon of statutory interpretation, at least in criminal cases?

In a recent article, The Hidden Legacy of Holy Trinity Church: The Unique National Institution Canon (forthcoming, 51 William & Mary Law Review __ (2009))—in which I argue that the Supreme Court quietly has employed a “unique national institution canon” to give preferential legal treatment to certain special/unique American entities (Christian churches, baseball, railroads, tobacco, Native Americans)—I touch on this question of how different interpretive methodologies become canons or rules of statutory construction.

One position might be that any time the Supreme Court, as the highest court in the land, uses an interpretive methodology, that methodology becomes a rule or canon of statutory construction. This seems to be the view taken by William Eskridge, Philip Frickey, and Elizabeth Garrett in their Legislation casebook, which contains an appendix compiling “The Supreme Court’s Canons of Statutory Interpretation.” More generally, I would suggest that interpretive methodologies rise to the level of canons of statutory construction when they can lay claim to one or more of the following: (1) frequent use by the Supreme Court; (2) longevity, as when the methodology originated in English courts or long has been listed in Sutherland’s definitive treatise on Statutes and Statutory Construction;(3) grounding in some fundamental tenet of the American legal system (e.g., the Constitution); or (4) fostering consistency with longstanding judicial treatment of particular words or subject matters.

Criminal Law: Drug Enforcement Policy
Thursday, Nov. 12
11:30 a.m. – 1:45 p.m.
East Room

– Prof. John S. Baker Jr., Dale E. Bennett Professor of Law, Louisiana State University Law Center
– Prof. Mariano-Florentino “Tino” Cuéllar, Special Assistant to the President for Justice and Regulatory Policy, White House Domestic Policy Council
– Mr. Aryeh Neier, President, Open Society Institute
– Hon. John P. Walters, Executive Vice President, Hudson Institute
– Moderator: Hon. Robert P. Young, Jr., Michigan Supreme Court

Moderator: Hon. Robert P. Young, Jr., Michigan Supreme Court:

President Obama has said in the past that the “get tough” approach to drug use has been an utter failure and has suggested shifting the policy paradigm to a more public health approach

Recent changes in the Justice Department include:

-Equalize sentencing of cocaine dealers and users.

-AG will prosecute in states that permit medicinal marijuana use

Too limiting of liberties? Too stifling of progressive medical advancements?

**Question: What is “drug war” addressed to?

Dr. John S. Baker, Jr. La. State University Law Center:

The problem is the metaphor “war” itself. We’re talking about an abstraction, so war as a concrete analogy that cannot apply. Cannot totally eliminate crime and drug use completely.

When set up as “war” we confuse the role of police.

Washington solutions centralize all the confusion and disorder “out there”

The federal government is responsible for interdiction—controlling international borders

There’s a difference between regulating commerce and punishing crime

-Punishing crime is a moral exercise, and that’s different from commerce.

Money in Washington drives things at the local level.

What is left out is that much of facing the drug problem needs to be done at the local level, including family involvement.

The Fed Government can only make things “not worse”

More after the Jump

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