Law and Policy in the Activist State: Rethinking Nuclear Regulation

This Article concerns the interaction of law and policy and its impact on the formation of rules of law and their implementation. In a modern bureaucratic polity, law and policy interact according to a set formula: law follows policy in the activist state. This Article will analyze the law-follows-policy formula in the context of nuclear power regulation. Nuclear policy has not kept up with the political or economic climates which have grown skeptical of nuclear power. This failure or inability of the nuclear power bureaucracy to respond effectively to political and economic changes is the essential weakness in the law-follows-policy formula. Society is experiencing a transformation in nuclear policy which raises serious questions about the future of nuclear regulation and the contours of government-industry relations in complex technological areas. Part II narrates the causes of the transition and explains the implications. In Part II, nuclear energy and regulation will be placed into historic and economic contexts. Part III describes and evaluates the interaction of nuclear law and policy. The danger of the overdependence of law on policy must be recognized. Law and policy interaction forces law to reproduce policy long after the policy choice changes. Correcting misguided policy means correcting the legal system through a bureaucratic fix. Part III describes the current model of legal liability rules and suggests a direction for regulatory reform. Part IV describes what the policy and regulatory futures look like and should look like

Land Use Controls in Iowa

Land use controls in Iowa, as in other states, exist in a variety of forms. Both the substance and structure of these controls continually change to meet the needs of a developing society. Recent and rapid technological growth, together with the spread of population, indicate that there is a growing interdependence between land use and land users. As a result of this interdependence and the complex nature of our technological and economic environment, the number of governmental regulations is increasing rapidly. This Article will focus on the two predominant governmental controls utilized in Iowa-zoning and planning. Next, the Article will examine the existing body of land use law in Iowa. Finally, current legislative land use proposals will be examined

The Four Failures of the Political Economy

A contemporary policy analyst accustomed to the ways of the micro economic model might admit that the effects of certain types of environmental regulation, (the placement of hazardous waste facilities, for example) might disproportionately impact the poor because it is economically prudent to locate facilities where land is the cheapest. The harsh reality of this strategy is that poor people are more likely to live in poorer sections of the country; thus, the likelihood of being closer to such a facility is higher than that of the general populace. Thus, under this hypothesis, environmental equity is classbased and dictated by economic considerations. Racial implications would, therefore, depend on a correlation between race and poverty. Unfortunately, this picture of class inequity is only partial. Environmental inequity also entails racial discrimination. Recent studies reveal that, even when an analyst accounts for class bias, environmental programs have had a disproportionately adverse impact on racial minorities. This race bias cannot be discounted and the scholars who have revealed its existence have significantly changed the way we must think about environmental regulation in particular and social regulation in general. This paper attempts to answer the following question: Why does environmental regulation show class and race bias? In answering that question, this paper argues that both structural and systemic problems pervade environmental decision-making and contribute to disadvantaging the dis-empowered

Compensable Regulations and an Alternative Compensation System

The traditional dichotomy between governmental regulation and takings law no longer represents a viable means of accomplishing present day societal or individual goals with respect to land use. This author believes that a system can be created that considers both the interests of the government and the individual, attempting to reach an equitable and practical result with respect to each. This article explores the potential use of an alternative compensation system relating to governmental activity in the field of land use-a system based not upon the highest and best use principle, but rather upon the use of compensable regulations. The article begins by analyzing the internal shortcomings of the present regulation-takings law. It next provides alternatives which either remedy or avoid those shortcomings. The author addresses underlying normative and ethical issues that relate to the proposed system, testing, it for its efficiency as well as its equity. Finally, the article examines compensable regulations and an alternative compensation system as applied to agricultural land preservation. The author does not suggest abandonment of all traditional concepts concerning government involvement in land use, but recommends that this area of the law be modernized

On Choosing Clients and Careers: A Speculative Essay on the Problems of Initial Choice

This paper deals with the moral dimensions of initial choices of careers and clients. Although the foregoing tale is addressed to the initial choice of career, similar considerations enter into the initial choice of clients. The problems of initial career choice were highlighted because they are more immediate to law students.\u27 In addition, one\u27s choice of career may have a significant effect on future choices of clients. In order for a lawyer to make an initial choice of either career or client, moral questions of the first rank must be answered. The purpose of this paper is to discuss these questions and the means by which they may be answered. First, the American Bar Association Code of Professional Responsibility (the Code) will be examined in order to illuminate the ethical foundations of the lawyer\u27s relationship to society and clients. This examination will be followed by a discussion of the moral foundations of lawyersociety and lawyer-client relationships. The paper will conclude with suggestions for resolving the moral problems encountered by young lawyers

A Code of One\u27s Own

A Code of One\u27s Own is an essay exploring the idea that we can learn about professionalism by reflecting on the humanities. The paper is modeled on Virginia Woolf\u27s A Room of One\u27s Own which is a series of lectures in six chapters. The essay uses those chapters to develop the idea that lawyers, through self-reflection and observation, can develop a professional code of their own. The paper was developed through co-teaching a course entitled, Law in Literature and Philosophy as well as by attending the Aspen Institute and the Glenmoor Institute of Justice for the Legal Profession, which are both Great Books seminars that examine different aspects of law and society

The Politics of Clean Energy: Moving Beyond the Beltway

This Article argues that the United States can achieve a new and smart energy policy and that we are taking active steps in this direction. Off of the Hill, at 1600 Pennsylvania Avenue, there is clear thinking about clean energy. Consider President Obamas choice for Secretary of Commerce, John Bryson. Bryson has been the CEO of a public electric utility, a founder of the Natural Resources Defense Council, and sits on the boards of such organizations as Boeing and Disney and clean energy firms like Coda Automotive and BrightSource Energy exactly the right job description for a clean energy advocate. Additionally, the DOE has made U.S. leadership in clean energy technologies its first priority. Clean energy, at its core, is about business as much as it is about the environment. Simply, public and private sector actors beyond the Beltway are crafting a clean energy agenda and promoting a new energy economy. This Article describes the path for adopting that policy and sketches the politics of clean energy. This path is smoother than attempting to pass climate change legislation because there is a significant consensus about what the contours of a clean energy policy should be and there is an emerging clean energy politics that will drive that change. Much of the politics is occurring off Capitol Hill and beyond the Beltway. Clean energy politics are emerging despite the lack of Congressional leadership. The clean energy agenda is wise because a transition to a clean energy portfolio can promote environmental protection, stimulate the economy though innovation and job creation, advance national security and ultimately reduce the cost of energy consumption. For the purposes of this Article, the concept of a clean energy policy is defined as: (a) an aggressive reduction in oil and coal consumption; (b) the use of natural gas as a transitional fuel once hydraulic fracturing (fracking) is adequately addressed; and, (c) the rapid expansion of energy efficiency and renewable resources. Of course, this very general definition is neither nuanced nor comprehensive. It is intentionally ambiguous, for example, about nuclear power. Nevertheless, it will serve as a marker for a discussion of the politics involved in making this vital transition