Framing Effects and Regulatory Choice

This Article proceeds as follows. First, in Part I, I describe the contributions of behavioral law and economics literature, and then focus on the notion of framing effects. In Part II, I provide an overview of the regulatory tools generally available to environmental regulators. In Part III, I elucidate the right to pollute and commodification critiques as applied to environmental regulation. In Part IV, I analyze the economically proper scope of the right to pollute and commodification critiques with respect to environmental regulatory instruments. In Part V, I first describe the differing frames of various environmental regulatory tools. I then describe how those differing frames give rise to framing effects that are likely to affect public perception of and reaction to different regulatory tools. In Part VI, I assess the prospect for refraining as a means to defuse objections to the introduction of market-based regulation. I conclude by outlining broad lessons that might be taken, as well as possible avenues for future research

Transparency and Opacity in Environmental Grandfathering

Regulatory schemes designed to further sustainable development – whether through pollution control or natural resources preservation – often employ grandfathering, that is, granting legal rights based on activity that predates the regulatory regime. Transparency in the context of grandfathering must be nuanced. Government should be transparent about incentives to engage in environmentally valuable behavior, but government should not be transparent to the extent that grandfathering relies on prior behavior that is detrimental to the environment and sustainable development. Consider first grandfathering based upon prior behavior that is environmentally detrimental – for example, allocating fishing quotas based upon prior years’ catches. When a government wishes to distribute grandfathering rights to societal actors who currently engage in a behavior that will soon be restricted, the societal actors may engage in inefficient behavior to secure additional property rights. Such behavior may artificially increase pollution emissions, prematurely and inefficiently deplete natural resources, or both. To minimize the undesirable incentive, the government may employ a “retrospective allocation” based on activities that predate the limitations on resource access. Legal uncertainty makes it more difficult for societal actors to modify their behavior. Such systems have become increasingly common in the context of environmental and natural resource regulation.  Over time, societal actors likely will come to expect retrospective allocation, and act in anticipation by engaging in the behaviors on which they predict the allocations will be based. In order to combat this gaming of the system, the criteria for winning allocations must change over time for retrospective allocation to maintain effectiveness on an ongoing basis. In other words, too much transparency in this context leads to inefficient behavioral distortions and poor environmental consequences; opacity serves to ameliorate these outcomes.In contrast, consider grandfathering of rewards for positive behavior – for example, awarding credits to societal actors who voluntarily reduce pollution emissions before a regulatory regime requires such reductions, or who make factories fuel-efficient before increased fuel efficiency is required. Whereas distortions by actors in attempts to garner more grandfathering rights by engaging in environmentally detrimental behavior is undesirable and should be discouraged by relying on some measure of opacity, environmentally desirable behavior should be encouraged via transparency. Assuming the government has decided upon behaviors it would like societal actors to undertake, the government should announce those behaviors and be transparent about its desire to provide positive benefits in the future. Such transparency will “lock the government in” and create greater incentives for societal actors to engage in the desired behaviors early in time, thus providing environmental benefits even before a regulatory regime is enacted and become binding.Before proceeding, I believe it important to identify an important caveat to the arguments I discuss here. I do not mean here to endorse grandfathering as normatively desirable. As I discuss below, legal and economic commentators have criticized grandfathering as a form of “transition relief” that is, relief from a transition in legal rule. These commentators argue that grandfathering inefficiently discourages actors from anticipating legal changes; they assert that it would be more efficient to subject all societal actors immediately to new legal regimes. While (as I also discuss below) there are arguments in support of limited grandfathering under limited circumstances, the arguments I make here have application so long as whatever the reason, and whether or not it is normatively desirable grandfathering continues to play a prominent role in environmental regulation.The balance of this chapter is organized as follows. Section 1 provides an overview of the role of grandfathering in environmental regulation. Section 2 explains how opacity should figure prominently in the government’s allocation of grandfathered rights on the basis of environmentally undesirable behavior. Section 3 discusses how, in contrast, the government should be transparent in identifying desirable behavior that it will reward with grandfathered rights. Section 5 concludes

A Functional Theory of Congressional Standing

The Supreme Court has offered scarce and inconsistent guidance on congressional standing—that is, when houses of Congress or members of Congress have Article III standing. The Court’s most recent foray into congressional standing has prompted lower courts to infuse analysis with separation-of-powers concerns in order to erect a high standard for congressional standing. It has also invited the Department of Justice to argue that Congress lacks standing to enforce subpoenas against executive branch actors. Injury to congressional litigants should be defined by reference to Congress’s constitutional functions. Those functions include gathering relevant information, casting votes, and (even when no vote is ever cast) exercising bargaining power over the scope of legislation. Accordingly, congressional standing can extend not only to cases of actual vote nullification (as extant Supreme Court precedent suggests), but also to cases in which (1) congressional plaintiffs validly seek information from the executive branch, and (2) the limited circumstance in which the executive branch has acted so as to threaten permanent and substantial diminution in congressional bargaining power—provided that enough legislators join the suit to lay claim to the relevant institutional bargaining power

Null Preemption

This Article proceeds as follows. In Part I, I introduce the concept of null preemption. I discuss in greater detail the case of regulation of motor vehicle tailpipe greenhouse-gas emissions as a case study of null preemption. In Part II, I explore the contours of null preemption, and then describe, and distinguish among, several paradigmatic settings in which null preemption may arise. In Part III, I consider the normative case for null preemption. I conclude that the case is narrow. I also consider concerns of institutional choice and argue that even those who generally defend agency preemption of state law should be wary of “back door” assertions of null preemption by agencies, and should therefore support some congressional constraints on regulatory freedom. In Part IV, I consider how concerns of political economy may explain why null preemption has historically been uncommon, but may become more common in the future. Finally, in Part V, I offer suggestions as to how Congress might constrain regulators from invoking null preemption, and also for courts called upon to review claimed occurrences of null preemption

Judicial Laterals

Lawyers already in practice at one law firm often move to another law firm. This type of move is referred to as lateraling. A lawyer might choose to lateral for many of the reasons we often think people in general take new positions: better job security, better pay, better benefits, greater prestige, more interesting work, better future job prospects, more leisure time, and/or more predictable hours.\u27 In contrast to lawyers in private practice, we do not commonly associate judges with lateraling. But the fact is that, just as some judges are reassigned or promoted within a judicial system (for example, a federal district judge being elevated to the court of appeals), some judges occasionally engage in a practice to which we logically might refer as judicial lateraling : they move from being a judge in one judicial system to being a judge in another. Since judges are usually (inexorably) tied to a particular jurisdiction, the reality is that a judicial lateral will move either from a state judiciary to the federal judiciary, or from the federal judiciary to a state judiciary

An Empirical Investigation into Appellate Structure and the Perceived Quality of Appellate Review

What is the ideal structure for appellate review? Without providing a definitive answer to the question, commentators have suggested several factors that may improve the process, and thus perhaps the accuracy, of appellate review. First, it is said that panels of judges are preferable to review by a single judge. Second, expertise in the relevant area of law is a benefit. Third, other indicia of lawfinding ability-such as the ability of lawyers and judges to focus on legal issues without the distraction of factual conflicts and the amenability of judges\u27 schedules to careful contemplation and reflection-contribute to the quality of appellate review. Fourth, a court\u27s adherence to traditional notions of appellate hierarchy, as exemplified by following its earlier precedents, has been deemed to produce better results. Finally, it is said that the independence of appellate judges-that is, the extent to which job features such as life tenure and a guaranteed salary tend to insulate judges from pressures to decide cases or issues one way or another-is of value. In this Article, we endeavor to evaluate empirically the relative quality of appellate review. To do this, we rely upon data obtained from the appellate review of bankruptcy matters. The current federal bankruptcy appellate structure provides an excellent setting in which to study appellate review because it offers litigants two paths for obtaining appellate review. First, after the bankruptcy judge issues a ruling, litigants may have the district court-in the person of a single district judge-review that ruling. Alternatively, the parties may agree (in circuits that have them) to have the bankruptcy judge\u27s ruling reviewed by a panel of bankruptcy judges-a so-called bankruptcy appellate panel or BAP. Further appeal in both cases- whether from the district court or the bankruptcy appellate panel- lies with the proper federal circuit court of appeals. We have collected data on affirmance rates in and citation rates to appellate bankruptcy opinions. Analyses of the data generally-and analyses of the citation data in particular-support the notion that BAP decisions in our study are perceived to be of greater quality than are district court decisions. First, we find support for the proposition that courts of appeals are more likely to uphold upon review the conclusions of BAPs than district courts. Second, BAP decisions are, with statistical significance, cited more frequently by bankruptcy courts, BAPs, federal courts of appeals, and courts in other circuits than are district court decisions. Only district courts are not more likely .to cite BAP decisions than decisions rendered by district courts

An Empirical Investigation into Appellate Structure and the Perceived Quality of Appellate Review

What is the ideal structure for appellate review? Without providing a definitive answer to the question, commentators have suggested several factors that may improve the process, and thus perhaps the accuracy, of appellate review. First, it is said that panels of judges are preferable to review by a single judge. Second, expertise in the relevant area of law is a benefit. Third, other indicia of lawfinding ability-such as the ability of lawyers and judges to focus on legal issues without the distraction of factual conflicts and the amenability of judges\u27 schedules to careful contemplation and reflection-contribute to the quality of appellate review. Fourth, a court\u27s adherence to traditional notions of appellate hierarchy, as exemplified by following its earlier precedents, has been deemed to produce better results. Finally, it is said that the independence of appellate judges-that is, the extent to which job features such as life tenure and a guaranteed salary tend to insulate judges from pressures to decide cases or issues one way or another-is of value. In this Article, we endeavor to evaluate empirically the relative quality of appellate review. To do this, we rely upon data obtained from the appellate review of bankruptcy matters. The current federal bankruptcy appellate structure provides an excellent setting in which to study appellate review because it offers litigants two paths for obtaining appellate review. First, after the bankruptcy judge issues a ruling, litigants may have the district court-in the person of a single district judge-review that ruling. Alternatively, the parties may agree (in circuits that have them) to have the bankruptcy judge\u27s ruling reviewed by a panel of bankruptcy judges-a so-called bankruptcy appellate panel or BAP. Further appeal in both cases- whether from the district court or the bankruptcy appellate panel- lies with the proper federal circuit court of appeals. We have collected data on affirmance rates in and citation rates to appellate bankruptcy opinions. Analyses of the data generally-and analyses of the citation data in particular-support the notion that BAP decisions in our study are perceived to be of greater quality than are district court decisions. First, we find support for the proposition that courts of appeals are more likely to uphold upon review the conclusions of BAPs than district courts. Second, BAP decisions are, with statistical significance, cited more frequently by bankruptcy courts, BAPs, federal courts of appeals, and courts in other circuits than are district court decisions. Only district courts are not more likely .to cite BAP decisions than decisions rendered by district courts

The Production Function of the Regulatory State

How much will our budget be cut be this year? This question has loomed ominously over regulatory agencies for over three decades. After the 2016 presidential election, it now stands front and center in federal policy, with the Trump administration pledging over $50 billion in cuts. Yet very little is known about the fundamental relationship between regulatory agencies’ budgets and the social welfare outcomes they are charged to produce. Indeed, the question is scarcely studied in scholarship from law, economics, or political science. This article lays the groundwork for a new field of theoretical and empirical research, using what we call the “regulatory production function,†to understand the marginal effects of changes in regulatory agency budgets (both reductions and increases) on the levels of benefits they produce. Our proposed theoretical framework and empirical findings have important implications across the regulatory state on the relationship between agency funding and outcomes for public health, safety, and welfare agencies. This model of the regulatory state informs agency-scale decisions regarding institutional design and instrument choice as well as the broader set of decisions regarding the balance of federalism and reliance on private governance as a supplement to public authority. Part I describes relevant scholarship on the broad topic of regulatory agency resources and outcomes, showing a paucity of theoretical and empirical analysis of the question. Using the Environmental Protection Agency (EPA) and environmental quality as a case study, Part II develops a conceptual model of a regulatory production function for thinking more clearly about linkages between agency funding and regulatory outcomes. Using this model, Part III turns to generating hypotheses that could explain why EPA funding levels may or may not have a strong effect on environmental quality. Part IV uses regression analyses to test whether there is a statistically significant relationship between agency funding and air pollution. In the face of significant data and modeling constraints, we found none. Part V then explores the important research questions that emerge from the study and proposes a research agenda going forward. Much as the tools of cost-benefit analysis and risk assessment have transformed the study of policy choice and legal design, development of the regulatory production function model and the data needed to study it will allow scholars to examine fundamental questions of the regulatory state

Bad Faith Prosecution

There is no shortage of claims by parties that their prosecutions are politically motivated, racially motivated, or just plain arbitrary. In our increasingly polarized society, such claims are more common than ever. Donald Trump campaigned on promises to lock up Hillary Clinton for her handling of State Department-related emails, but he subsequently complained that the special counsel\u27s investigation of his campaign\u27s alleged contacts with Russian operatives was a politically motivated witch hunt. Kenneth Starr\u27s pursuit of investigations of Bill Clinton evoked similar arguments of political motivation. The advent of progressive prosecutors will no doubt increase claims of bad faith prosecution, given their announcements of crimes they will and will not prosecute. Typically, they promise not to prosecute for lesser violations such as prostitution and drug possession. Although crime victims generally cannot complain that a perpetrator was not prosecuted, non-prosecution policies could strengthen claims of bad faith prosecution when prosecutors nevertheless prosecute some individuals for such delicts. In addition, candidates\u27 and officials\u27 statements that they intend to pursue certain individuals or groups may bolster claims of bad faith as evidenced in Donald Trump\u27s arguments of political motivation for investigations by New York Attorney General Letitia James

Protecting State Constitutional Rights from Unconstitutional Conditions

The unconstitutional conditions doctrine limits the ability of governments to force individuals to choose between retaining a right and enjoying a government benefit. The doctrine has primarily remained a creature of federal law, with neither courts nor commentators focusing on the potentially important role of state doctrines of unconstitutional conditions. This omission has become especially significant during the COVID-19 pandemic, as actions by state and local governments have presented unconstitutional conditions questions in a range of novel contexts. The overruling of Roe v. Wade and the resulting focus on state constitutional rights to abortion will offer additional new settings for state unconstitutional conditions analysis. As attention turns to distinctive state constitutional rights — in the context of COVID-19 disputes, abortion litigation, and more generally — state courts should develop their own state doctrines of unconstitutional conditions, rather than simply reverting to federal unconstitutional conditions analysis. Three reasons in particular drive this doctrinal claim. First, the unconstitutional conditions doctrine helps to define the scope and weight of a constitutional right. A state court that ignores the unconstitutional conditions doctrine when considering the constitutionality of a state statute or regulation risks undermining the very nature of the right. Second, uncritically adopting federal doctrine ignores the state’s distinctive legal framework, interests, and history, all of which might lead to a deviation from federal law. With respect to the topics on which unconstitutional conditions litigation typically focuses, such as licenses and permits, the federal-state disparities are especially stark. Third, robust legal development in our federal system depends in part upon the interplay of different institutional interpreters. When state courts and federal courts engage in independent interpretative activity, they create the possibility of dialogue and mutual learning. This interpretive interplay enhances federal doctrine, as well as doctrinal development in other states. Given the gaps and inconsistencies in the unconstitutional conditions doctrine, such interjurisdictional enlightenment is especially needed in this area. After explaining why states should develop their own doctrines of unconstitutional conditions, we suggest the relevant considerations that should guide states in formulating their doctrines