The Yale Law Journal

Environmental Law

Note

Presidential Administration and the Durability of Climate-Consciousness

Yumehiko Hoshijima

Climate change presents unique governance problems. The Obama Administration attempted to allay some of these challenges through procedural requirements throughout the federal bureaucracy that entrenched scientific analysis and expertise. This Note documents those requirements and posits that they m…

Article

The Perils of Experimentation

Michael A. Livermore

More than eighty years after Justice Brandeis coined the phrase “laboratories of democracy,” the concept of policy experimentation retains its currency as a leading justification for decentralized governance. This Article examines the downsides of experimentation, and in pa…

Forum

Triptych’s End: A Better Framework To Evaluate 21st Century International Lawmaking

Harold Hongju Koh

How does the United States enter and exit its international obligations? By the last days of the Obama Administration, it had become painfully clear that the always imaginary “triptych” of Article II treaties, congressional-executive agreements, and sole executive agreements, which has guided foreig…

Forum

Democracy and Legitimacy in Investor-State Arbitration

Cory Adkins & David Singh Grewal

In January 2016, the Canadian infrastructure company TransCanada Corporation filed a notice of intent to sue the United States government in a North American Free Trade Agreement (NAFTA) Chapter 11 arbitration over the Keystone XL pipeline. At the center of this dispute is the State Department’s ref…

Forum

Preventing Policy Default: Fallbacks and Fail-safes in the Modern Administrative State

Daniel A. Farber

**This is the third in a series of responses to Benjamin Ewing and Douglas A. Kysar's recent article, Prods and Pleas: Limited Government in an Era of Unlimited Harm, which appeared in the November issue of YLJ. For Professor Richard Epstein's response, see here. For Professor Jonathan Zasloff's res…

Forum

Beware of Prods and Pleas: A Defense of the Conventional Views on Tort and Administrative Law in the Context of Global Warming

Richard A. Epstein

**This is the first in a series of responses to Benjamin Ewing and Douglas A. Kysar's recent article, Prods and Pleas: Limited Government in an Era of Unlimited Harm, which appeared in the November issue of YLJ.**

In Prods and Pleas, Benjamin Ewing and Douglas Kysar claim that the American legal sy…

Article

Prods and Pleas: Limited Government in an Era of Unlimited Harm

Benjamin Ewing & Douglas A. Kysar

 

121 Yale L.J. 350 (2011).

Not just a system of checks and balances ideally tuned to constrain collective political action, the constitutional division of authority also may be seen as a system of “prods and pleas” in which distinct governmental branches and actors can push each other to entertai…

Forum

AEP v. Connecticut’s Implications for the Future of Climate Change Litigation

Hari M. Osofsky

**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**

In American Electric Power Co. v. Connecticut (AEP), the Supreme Court held that “th…

Forum

A Tale of Two Climate Cases

Jonathan H. Adler

**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**

In July 2004, eight states, the City of New York, and a number of conservation organ…

Forum

Climate Justice and the Elusive Climate Tort

Maxine Burkett

**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**

The Supreme Court’s decision in American Electric Power Co. v. Connecticut (AEP) clo…

Forum

Standing on Hot Air: American Electric Power and the Bankruptcy of Standing Doctrine

Daniel A. Farber

**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**

Article III standing has three seemingly simple components: (1) the plaintiffs must …

Forum

AEP v. Connecticut and the Future of the Political Question Doctrine

James R. May

**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**

Whether and how to apply the political question doctrine were among the issues for w…

Forum

What Litigation of a Climate Nuisance Suit Might Look Like

Michael B. Gerrard

**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**

In American Electric Power Co. v. Connecticut (AEP), the Supreme Court explicitly le…

Forum

The Dirty Climate Debate

Brian H. Potts

Climate change has become the hottest environmental debate in decades. It could also go down as the dirtiest—and not just politically. As legislators, regulators, pundits, and stakeholders debate the question of whether or not to regulate greenhouse gas emissions, the regulatory uncertainty that t…

Note

Environmental Economics: A Market Failure Approach to the Commerce Clause

Mollie Lee

116 Yale L.J. 456 (2006)

Congressional authority to enact environmental legislation has been called into question by recent Supreme Court cases suggesting that Commerce Clause regulation is valid only if Congress is regulating economic activity. This Note proposes a market failure approach to guide t…

Article

Good Governance at the Supranational Scale: Globalizing Administrative Law

Daniel C. Esty

115 Yale L.J. 1490 (2006)

This Article examines the tension between the demonstrable need for structured international cooperation in a world of interdependence and the political strain that arises whenever policymaking authority is lodged in global institutions. It argues that the tools of administr…

Note

Appurtenancy Reconceptualized: Managing Water in an Era of Scarcity

Olivia S. Choe

113 Yale L.J. 1909 (2004)

I. THE NEED TO REASSESS REGULATED RIPARIANISM

Until recently, the eastern United States has been blessed with an abundance of water; unlike the arid West, shortages in the East have historically been "rare and short-lived." During the past few decades, however, water has i…

Comment

Turning the Endangered Species Act Inside Out?

Jud Mathews

113 Yale L.J. 947 (2004)

Within a week, both the Fifth and D.C. Circuits upheld the takings prohibitions of the Endangered Species Act (ESA) of 1973, as applied to species found only in single states, against Commerce Clause challenges. Both cases reach the same result, but the legal analysis used…

Comment

A Missed Opportunity: Nonprofit Antitrust Liability in Virginia Vermiculite, Ltd. v. Historic Green Springs, Inc.

Olivia S. Choe

113 Yale L.J. 533 (2003)

The antitrust laws are meant to govern and promote competition. But how antitrust law should treat nonprofit organizations, whose objectives lie outside the commercial sphere but whose actions nevertheless have economic consequences, is not settled. The Fourth Circuit recent…

Note

Billboards and Big Utilities: Borrowing Land-Use Concepts To Regulate "Nonconforming" Sources Under the Clean Air Act

Deepa Varadarajan

112 Yale L.J. 2553 (2003)

I have suggested the incorporation of amortization provisions as a potential solution to the continued emissions problem posed by coal-burning electric utilities built prior to the original Clean Air Act. Thirty years after the Act's passage, these problematic sources have n…

Essay

Probability Neglect: Emotions, Worst Cases, and Law

Cass R. Sunstein

112 Yale L.J. 61 (2002)

In this Essay, my central claim has been that the probability of harm is often neglected when people's emotions are activated, especially if people are thinking about the worst-case scenario. If that scenario is vivid and easy to visualize, large-scale changes in thought and b…