Environmental Law SSRN Reading List: February 2016

SSRN Top Papers

The Harvard Environmental Law Review‘s monthly Environmental Law SSRN Reading List is back, just in time for the spring submissions cycle. (Did you know we’re accepting submissions for Volume 41?) Check out this month’s selections below:

  1. The Votes of Other Judges by Eric Posner and Adrian Vermeule (arguing that judges should take into account the votes of colleagues—e.g., in the Chevron context when different judges read a statute as being “unambiguous” in divergent ways, suggesting ambiguity—and proposing a two-stage voting procedure for doing so)
  2. The Origins of Legislation by Ganesh Sitaraman (Notre Dame Law Review) (providing a comprehensive typology of the origins of legislative drafts and outlining the many ways in which drafts emerge, then explaining why members of Congress pursue different drafting processes and exploring the consequences of variety in legislative drafting for theories of statutory interpretation, for identifying reliable sources of legislative history, and for arguments about congressional delegation and judicial deference to agencies)
  3. Shooting the Albatross: Why a State Takeover of Federal Public Lands Would Make Endangered Species Act Compliance More Expensive and Difficult by John Ruple, Mark K. Capone, Emanuel Vásquez & Alison Jones (Environs, Vol. 38, 2016) (arguing that the goals underpinning state efforts to seize control of federal lands—to reduce regulatory complexity and accelerate resource development—are at odds with changes in the Endangered Species Act compliance process that a public land transfer would bring about)
  4. The Unbearable Rightness of Auer by Cass Sunstein and Adrian Vermeule (arguing for Auer deference to agencies based on their specialized competence and greater accountability, and rebutting challenges to Auer as resting on an anachronistic understanding of the nature of interpretation, an overheated argument about the separation of powers, and an empirically unfounded and logically weak argument about agency incentives) [Eds.: see also our forthcoming case comment on Perez v. Mortgage Bankers!]
  5. Make My Day! Dirty Harry and Final Agency Action by William Funk (Environmental Law, Forthcoming) (arguing how and why the Supreme Court should affirm in Hawkes, the pending CWA “final agency action” case, and suggests that this case presents a perfect opportunity for the Court to clarify what is necessary to constitute final agency action subject to judicial review under the APA more generally)
  6. When Do State Transmission Siting Laws Violate the Constitution? by Alexandra B. Klass and Jim Rossi (Electricity Journal) (assessing the merits of potential Dormant Commerce Clause challenges to state transmission line siting regimes, which may require state regulators to consider benefits beyond their jurisdictional borders—particularly when developers propose infrastructure projects to create regional (as opposed to state-specific) benefits in energy markets or where out-of-state developers propose to build interstate lines)
  7. Consume or Invest: What Do/Should Agency Leaders Maximize? by William E. Kovacic and David A. Hyman (Washington Law Review, Forthcoming) (outlining the incentives for agencies to “consume” (launch high-profile cases and rulemakings) rather than “invest” (develop internal infrastructure for the future), and offering several proposals to help agency leaders strike a better balance between consumption and investment)
  8. 3D-Printed Food by Jasper L. Tran (Forthcoming in Minnesota Journal of Law, Science and Technology) (exploring the legal issues surrounding 3D-printed food, focusing on food safety and labeling)
  9. Overcriminalization and the Endangered Species Act: Mens Rea and Criminal Convictions for Take by Jonathan Wood (arguing that the Endangered Species Act’s “take” prohibition requires knowledge of all of the facts constituting the offense, including the identity of the species)
  10. Non-SSRN Bonus: Judicial Missteps, Legislative Dysfunction, and the Public Trust Doctrine: Can Two Wrongs Make It Right? by Richard J. Lazarus (Environmental Law) (questioning the efficacy of relying on atmospheric trust doctrine theories in litigation to address the pressing issue of global climate change)