Economic Efficiency Versus Public Choice: The case of Property Rights in Road Traffic Management

This Article argues, using the case of responses to traffic congestion, that public choice theory provides a greater explanation for the emergence of property rights than does economic efficiency. The traditional solution to traffic congestion is to provide new roadway capacity, but that is not an efficient response in that it does not lead to internalization of costs and may actually exacerbate congestion problems by inducing travel that would not have taken place but for the new construction. By contrast, congestion charges, which impose tolls designed to internalize the costs of driving, offer an efficient way to address the problem of congestion. Nonetheless, the continued popularity of providing new roadway capacity turns upon public choice theory. New roadway construction is attractive for politicians as a way to satisfy both constituents generally, and well-organized and powerful interest groups in particular. Although congestion charging regimes tend to be less popular across the board politically, there appears currently to be a shift in position. This Article argues that it is possible for concerns of efficiency to override (or at least to curtail) politics when the inefficiencies of a response grounded in political economy become too large. But at the same time, public choice theory continues to hold considerable sway—the shift toward congestion pricing may require not only pressing efficiency concerns, but also a shift in the political climate

Sovereign Preemption State Standing

When does a state have standing to challenge the Executive Branch’s alleged underenforcement of federal law? The issue took on importance during the Obama Administration, with “red states” suing the Executive Branch over numerous issues, including immigration and health care. The question of state standing has already appeared in important litigation during the first months of the Trump Administration, only with the political orientation of the actors reversed. This Article argues in favor of sovereign preemption state standing, under which a state would enjoy Article III standing to sue the federal government when (1) the federal government preempts state law in an area, yet (2) the Executive Branch allegedly underenforces the federal law that Congress enacted to address that very same area. Sovereign preemption state standing arises naturally out of the function of states in the federal system. It is grounded upon parens patriae injury—that is, injury to the state’s ability to protect its citizens against harm. The federal government can properly preempt state law, on the logic that it then assumes from the state the obligation to protect the state’s citizens from harm. Where the Executive Branch then fails adequately to enforce federal law, it leaves the state’s citizens unprotected. The state then has Article III standing to sue the federal government on behalf of its citizenry. The universe of cases where sovereign preemption state standing operates is not large, which should assuage concerns over opening the floodgates of state–federal litigation. Moreover, prudential doctrines can be overlaid such that more cases would be screened out. Although sovereign preemption state standing could conceivably extend to Executive Branch overenforcement, such an application would not square with the functional justification for the doctrine

Measuring Judicial Collegiality Through Dissent

While scholars frequently offer ideology as a primary explanation for judicial behavior, judges, and some scholars, emphasize the importance of collegiality on multimember courts. But there is disagreement over how to determine when collegiality is at work, and what type of multimember court is more likely to exhibit collegiality among its judges. Resolving these competing claims calls for a valid measure of collegiality. This Article develops novel measures of collegiality based on dissenting judges’ expressions of collegiality towards judges in the majority. It uses judge-level and court-level databases to validate these measures by showing that the novel measures correlate with some, but not other, measures of dissent aversion—a feature of multimember courts that commentators see as aligned with collegiality. The Article then investigates empirically settings where judges tend to act collegially and the characteristics of courts that tend to be collegial. Analysis reveals that collegiality is not associated with ideological homogeneity and is more likely to be found in published opinions; that the Supreme Court is more collegial than are the courts of appeals; and that collegiality is less likely to be found on courts with large complements of judges, and on courts with chambers spread across more courthouses

Standing and the Precautionary Principle

In Massachusetts v. EPA, the Supreme Court upheld Massachusetts’ standing to challenge EPA’s refusal to regulate greenhouse gas emissions from mobile sources. The majority and dissent disputed whether the science of global warming was sufficient to establish standing. Absent from both opinions was discussion of whether there would be standing if the science were uncertain but the potential harms large and irreversible. This Essay argues that “precautionary-based standing”—grounded upon a fundamental principle of environmental law, the precautionary principle—should apply in such cases. Precautionary-based standing would not upset existing standing doctrine. First, its application would be limited, and could further be limited to cases brought by a sovereign. Second, there already are less stringent standing requirements in areas where society has deemed precaution to be appropriate. Third, the catastrophic and uncertain nature of the injury in a precautionary based standing would satisfy Article III. The argument here is important in several ways. First, reliance upon the precautionary principle might attract the support of people who question the certainty of the science but recognize the large risks associated with global warming. Second, precautionary-based standing would be available to address future environmental crises where scientific understanding that the threat is real may lag. Third, precautionary-based standing eventually may generate a broader evolution of standing jurisprudence. Fourth, importation and application of the precautionary principle to questions of standing will provide a logical and stable setting in which the precautionary principle might develop and flourish

Expertise and Opinion Assignment on the Courts of Appeals: A Preliminary Investigation

This Article examines the role of expertise in judicial opinion assignment and offers four contributions: First, this Article develops a general theory of opinion assignment on multimember courts. Second, this Article uses that theory to predict how expertise might influence opinion assignment. Third, because the theory advanced in this Article suggests that the courts of appeals are far more likely to witness experience-based opinion assignment than is the Supreme Court, this Article contributes to an understanding of opinion assignment practices in this understudied area. Fourth, this Article identifies two settings in which the theory this Article advances should have observable implications, and this Article proceeds to test those implications empirically. It finds that, in the years following the initial adoption of the Sentencing Guidelines, circuit judges who were Sentencing Commissioners were more likely to have assigned to them opinions raising sentencing issues. It also finds that circuit judges who previously served as bankruptcy judges were more likely to have bankruptcy cases assigned to them. The Guidelines setting, moreover, allows for a natural experiment, in that we can test whether judges who served as Commissioners saw disproportionate levels of opinion assignment in criminal cases before the Guidelines took effect; it turns out, consistent with the theory, that they did not

Null Preemption

How free should the federal government be, not only to preempt state regulatory law, but also to choose itself to adopt no law on point? Such instances of “null preemption” have been historically rare, but now are occurring with greater frequency. Consider that the Environmental Protection Agency (EPA) refused to allow states to impose standards governing motor vehicle tailpipe greenhouse-gas emissions, and also argued that it could not, or alternatively would not, issue any federal regulations. Further, though the Supreme Court rejected the EPA\u27s arguments, two years have since passed with no EPA action. The regulatory voids resulting from such instances of “null preemption” are rarely normatively justified. Even if states lack a normative justification for regulating, still the structure of the federal system means that null preemption offends states\u27 sovereign prerogative to protect their citizens. Moreover, it is far more likely, not that the states lack any normative justification, but that there is a normative dispute between federal and state government over the propriety of regulation. Only rarely—such as when the federal government seeks to avoid interstate externalities and the cost of national regulation outweighs its benefit—will null preemption be justified. Null preemption should accordingly be limited. Congress can statutorily limit federal regulators\u27 freedom to engage in null preemption. Courts should react skeptically to assertions of null preemption, especially where regulators make such assertions without indication of supporting congressional intent