Imagining the Past - Remembering the Future

At its most general level the author\u27s critique is captured in the title of this Comment. In his view, Edley and Sunstein imagine the past of administrative law that represents but a partial understanding of where we have been and where we have come. They then propose a future that is, he fears, made up primarily of the recollection and extension of reforms that have already been attempted. Thus, their arguments have modest capacities, if applied generally, to do more good than harm

Law and Engineering: In Search of the Law-Science Problem

Lawyers and scientists both have the intellectual conceit that a well-defined problem is not only a necessary, but almost a sufficient, condition for a successful solution. Mashaw examines the applied science of engineering in the context of health and safety regulation, focusing on the law-science interface at the NHTSA

Civil Liability of Government Officers: Property Rights and Official Accountability

The law under which government officials operate permits them to inflict injury on others, under prescribed circumstances, in established ways, and in carefully (and sometimes not so carefully) calibrated amounts. Indeed, the law goes further: it sometimes tells the official that a failure to injure-that is, to coerce compliance with a predetermined rule of conduct-is a dereliction of official duty. For although there may be interminable argument over the social goals that justify the state in using force, all but the most extreme libertarians concede some place to governmental, and therefore official, coercion. The legal system\u27s permitting-or requiring-officially inflicted harms need not, however, be viewed as meaning that official harms have a peculiar legal position. At its most general level the law governing civil liability imposes an obligation to repair any negligent or intentional harm inflicted upon another.1 This liability rule obtains unless the harmful action can be justified by appeal to special circumstances.\u27 When harmful action is authorized by the statutes, regulations, customs, and interpretations empowering and instructing officials, such authorization may be viewed as merely one form of justification. Neither the constable who enters blackacre pursuant to a valid warrant nor the buyer who enters pursuant to a contract of sale will be held liable for trespass

Law and Engineering: In Search of the Law-Science Problem

Lawyers and scientists both have the intellectual conceit that a well-defined problem is not only a necessary, but almost a sufficient, condition for a successful solution. Mashaw examines the applied science of engineering in the context of health and safety regulation, focusing on the law-science interface at the NHTSA

The Economics of Politics and the Understanding of Public Law

The utilization of economic analysis in constitutional and administrative law and in the interpretation of statutes is hardly novel. The battles of the 1920s and 1930s over the constitutional legitimacy of state regulation are conventionally characterized as battles over economic substantive due process. The theoretical underpinning of traditional administrative regulation of rates and entry is borrowed from welfare economics and the economics of industrial organization, and the rationale for the new wave of health and safety regulation in the 1960s and 1970s comes primarily from the literature on the economics of public goods and externalities. It has become conventional to evaluate the performance of modern regulatory agencies in terms of their capacity to produce an excess of benefits over costs. Indeed, many public law statutes, such as the Sherman Antitrust Act can hardly be understood except in terms of basic economic categories like the relevant market, market share, market power and consumer surplus