Accessing Law: An Empirical Study Exploring the Influence of Legal Research Medium

The legal profession is presently engaged in an uncontrolled experiment. Attorneys now locate and access legal authorities primarily through electronic means. Although this shift to an electronic research medium radically changes how attorneys discover and encounter law, little empirical work investigates impacts from the shift to an electronic medium. This Article presents the results of one of the most robust empirical studies conducted to date comparing research processes using print and electronic sources. While the study presented in this Article was modest in scope, the extent and type of the differences that it reveals are notable. Some of the observed differences between print and electronic research processes confirm predictions offered, but never before confirmed, about how the research medium changes the research process. This Article strongly supports calls for the legal profession and legal academy to be more attentive to the implications of the shift to electronic research

Foreword: Energy and the Environment: Empowering Consumers

The conference Energy and the Environment: Empowering Consumers brought together legal scholars, attorneys, scientists, philosophers, journalists, sociologists, elected representatives, and agency experts. This symposium issue of the Hofstra Law Review presents a selection of papers from conference participants that, together, illustrate some of the opportunities, challenges, and diverse questions that arise in the effort to deploy energy and environmental law and policy to embrace individual consumers and combat climate change

Using Local Knowledge to Shrink the Individual Carbon Footprint

Entire texts have been devoted to exploring the meaning of the term “lifestyle” and sociological understandings of lifestyle are complex and nuanced.For present purposes, however, a more simple articulation of the term will suffice. Lifestyle can mean “mode of living,” including “patterns of action” and “patterns of ways of living.” Without rendering judgment, one observation that can fairly be made about the current lifestyles and associated behaviors of Americans is that they indirectly and directly lead to the emission of a high volume of greenhouse gases (“GHGs”).7 Although an American diplomat is said to have remarked in preparing for the Rio Earth Summit that “‘the American lifestyle is not up for negotiation,”’ a growing number of legal scholars recognize the need for environmental policy to capture individual GHG emissions, and have begun to explore whether and how the law can or should be used to change individual, GHG-emitting lifestyles and behaviors. One consideration in designing a policy aimed at individual, GHG-emitting behaviors will be the division of authority between different levels of government. As evidenced by the opening quotations, local governments are often characterized as well-situated to influence individual behavior, particularly GHG-emitting behaviors. This Idea links concepts developed in the environmental federalism literature with work discussing the use of law to influence environmental behaviors to consider the competence of local governments with respect to influencing individual, GHG-emitting lifestyle and behavior choices

Capturing Individual Harms

The aggregated lifestyles and behaviors of individuals impose significant environmental harms yet remain largely unregulated. A growing literature recognizes the environmental significance of individual behaviors, critiques the failure of environmental law and policy to capture harms traceable to individual behaviors, and suggests and evaluates strategies for capturing individual harms going forward. This Article contributes to the existing literature by approaching the problem of environmentally significant individual harms through the lens of environmental federalism. Using climate change and individual greenhouse gas (“GHG”) emissions as an exemplar, the Article illustrates how local information, local governments, and local implementation can enhance policies designed to capture individual environmental harms. Local information and community-level implementation may enhance norm management efforts designed to influence GHG-emitting behaviors by (1) allowing for the identification of concrete behaviors that are feasible to target through norm management in a given community; (2) informing the design and content of norm campaigns, including the selection of the abstract norm that will form the basis of the appeal for specific behavioral change; and (3) facilitating effective implementation strategies. This framework supports a preference for local action expressed, but to date largely unexamined, in the broader norm management literature. Additionally, the Article argues that obstacles to using mandates to influence GHG-emitting behaviors may be less formidable when mandates are developed and enforced locally. Local development and enforcement of mandates can reduce intrusion objections because (1) individuals are accustomed to local control over day-to-day behaviors; (2) familiarity with local attitudes and practices enables the design of mandates that avoid intrusion objections; and (3) local governments are in a better position to structure time, place, and manner restrictions that channel behavior while preserving some individual choice. Local design and enforcement of mandates may also minimize the key enforcement challenges of expense, numerosity, and (in)visibility

Electronically Manufactured Law

This Article seeks to strengthen the case for the academy and the legal profession to pay heed to the consequences of the shift to electronic research, primarily by employing cognitive psychology to guide predictions about the impacts of the shift and, thereby, address a perceived credibility gap. This credibility gap arises from the difficulty and imprecision in postulating how changes in the research process translate into changes in researcher behavior and research outcomes. Applying principles of cognitive psychology to compare the print and electronic research processes provides an analytical basis for connecting changes in the research process with changes in researcher behavior and research outcomes. Cognitive psychology generates two specific predictions about how electronic research will change the law. First, electronic research will lead to increased diversity in framing -- divergence in the selection of the legal theory or theories through which to conceptualize facts, arguments, and cases. Second, electronic research will lead to more tilting at windmills -- the advancement of marginal cases, theories, and arguments. The Article explores how an increase in diversity in framing and tilting at windmills could affect the legal profession and the law. For example, in an adversarial system, judicial options for case resolution are largely defined and constrained by the theories proffered by counsel. Diversity in framing could expand judicial authority by providing judges with a wider variety of options for dispute resolution. This underlines the way in which counsel serve as gatekeepers by exercising judgment about which cases and theories have sufficient merit to warrant pursuit. Increased tilting at windmills may require recalibration of the existing limits placed on lawyers in their role as gatekeepers. Recalibration may be necessary to prevent the dedication of client and judicial resources to lost causes spurred by lapses in judgment related to electronic research and to allow attorneys to advance, without fear of sanctions, thoughtful arguments designed to push doctrinal boundaries. Specifically, Part II reviews existing legal theory, scholarship, and data that suggest that the shift to electronic research will likely have broad-ranging impacts. Part III compares print and electronic research and discusses three particularly salient changes in research process: (1) electronic researchers are not guided by the key system to the same extent as print researchers when identifying relevant theories, principles, and cases; (2) electronic researchers do not encounter and interpret individual cases through the lens of key system information to the same extent as print researchers; and (3) electronic researchers are exposed to more and different case texts than print researchers. Part IV uses principles of cognitive psychology to examine these process differences and predict two major non-process consequences of the shift to electronic research: increased diversity in framing and tilting at windmills. Part V concludes by assessing the broader significance of these hypothesized consequences

Harnessing the Treaty Power in Support of Environmental Regulation of Activities That Don\u27t Substantially Affect Interstate Commerce

This Article proposes a framework for applying the treaty power that would accomplish the goal of environmental regulation. This framework would be applied where the President has signed, and Congress has ratified, a treaty and Congress has enacted domestic legislation in some way satisfying the goals or requirements of the treaty. Under this framework, the inquiry into whether the treaty power could appropriately be used by Congress in excess of its Article I, Commerce Clause powers would be indexed to the strength of (1) the contract-like nexus between the necessarily reciprocal requirements and the goals of the treaty and the specific statutory provisions enacted, and (2) the visibly apparent connection between the treaty and the legislation. Prong one of this framework, while greatly narrowing the extent to which the treaty power could be used to exceed Congress\u27 Commerce Clause authority to effect domestic regulation, would still leave room within the treaty power for the achievement of environmental gains because of the unique interconnectedness of many local and international environmental challenges. Prong two of this framework, by respecting prior expectations about the reach of environmental treaties and statues, avoids creating new reluctance to entering into environmental treaties. Part II of this Article discusses the reach of the treaty power and reviews various conceptions of how the Supreme Court\u27s recent federalism decisions have limited this power. Part III discusses how a framework for application of the treaty power can be designed that satisfies federalism concerns while still reserving room for use of the treaty power to achieve environmental benefits and supports this proposed framework by looking to the European experience in balancing international treaties and domestic regulation. Part IV analyzes portions of the ESA and the CWA that may be vulnerable to Lopez-Morrison challenge and demonstrates how attempts to rehabilitate provisions of these acts would fare under the proposed treaty power framework

Personal Environmental Information: The Promise and Perils of the Emerging Capacity to Identify Individual Environmental Harms

A variety of modern technologies reveal individual behaviors that have environmental consequences with increasing clarity. Smart meters and related technologies detect detailed information about when and how individuals use electricity within the home. Radio frequency identification ( RFID ) chips embedded in recycling collection bins track household recycling behaviors, including everything from whether the household is recycling to whether its members properly separate their recyclables. Regulators use aerial imagery and geographic information systems ( GIS ) technology to detect violations of local building codes and the illegal filling of wetlands. Interactive ecomaps allow city residents to compare environmental performance by zip code. Even information generated for entirely distinct purposes (for example, Global Positioning System ( GPS ) devices for vehicles) yields insights into environmental behaviors (for example, driving behavior related to gas consumption). At the same time that the technological capability to identify individual behaviors with environmental consequences (or environmentally significant individual behaviors) is growing dramatically, many are also calling for environmental law and policy to reduce the environmental harms that those behaviors cause or exacerbate

Climate Change and CERCLA Remedies: Adaption Strategies for Contaminated Sediment Sites

This article considers climate change questions in the context of a particular type of contaminated site--sites with contaminated sediments subject to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Although climate change may impact a variety of waste sites in different ways, even those without sediment contamination, this article focuses on sediment sites so as to frame a more manageable inquiry susceptible to in-depth treatment. The following section, Part II, identifies the vulnerability of contaminated sediment sites to climate change. The section describes sediment contamination, regulatory approaches to remediating contaminated sediments, and how climate change may impact sediment remedies. Part III evaluates strategies for managing climate risks at closed, previously remediated sediment sites; these strategies include reopening consent decrees. Part IV considers how climate effects may impact the selection of remedies dependent on engineering or institutional controls at contaminated sediment sites. The article concludes that the U.S. Environmental Protection Agency (the EPA) should monitor sediment sites for climate-related damage, particularly after extreme weather events, and should require that future remedies be designed to withstand upper-bound, climate change-adjusted frequencies and severities of relevant climate events. Proposed approaches include more aggressive monitoring requirements that clearly require prompt assessment of sites after severe events, and agreements that contain modified reopener language that expressly addresses whether and when climate change-related weather events, projected or actual, will trigger a reopener

Informational Regulation, the Environment, and the Public

Informational Regulation, the Environment, and the Public generates a typology to analyze how public disclosure functions in informational regulation. In the environmental context, informational regulation compels the public disclosure of environmental information without mandating substantive environmental outcomes in the expectation that disclosure itself will prompt beneficial change in the environmental context. Application of the Article’s typology reveals that the emperor has no clothes: Communication of environmental information to the public is considered central to policies employing informational regulation, but the information produced pursuant to these measures largely fails to reach or be understood by lay individuals. For example, empirical data shows that corporations required to publicly report releases under the Toxic Release Inventory (TRI) do change their conduct to reduce those releases despite being under no legal obligation to do so. Most people, however, are wholly unaware of the information disclosed under the TRI and, even if made aware of it, unable to comprehend its significance. This insight calls into question oft-cited normative bases for environmental information regulation, including that it supports individual autonomy (by informing choice about exposure to risk) and enriches civic perspective (by enhancing participation in administrative process and other civic behaviors). Critical examination of how informational regulation works and the effects it produces is timely and important. Environmental law increasingly embraces policies that employ informational regulation—it is, for example, central to current proposals to require greater disclosure of climate change risk under securities laws and constitutes a core element of many Environmental, Social, and Governance (ESG) protocols. Yet, close analysis suggests that the success of public disclosure at prompting upstream effects (changing the behavior of regulated entities) masks its general failure to speak to the lay public. Improving informational regulation requires a clear-eyed assessment of its limitations and a recognition that information cannot simply be pumped into the public domain and expected to enlighten individuals

The Legitimacy of Judicial Climate Engagement

Courts in key climate change cases have abdicated their constitutional responsibility to protect a prejudiced and disenfranchised group (nonvoting minors and future generations) and remedy an insidious pathology in public discourse and the political process: the industry-funded climate disinformation campaign. This Article posits that this abdication results from courts\u27 uneasiness about displacing the prerogatives of democratically elected bodies. This uneasiness is misplaced. Court engagement with climate cases would strengthen democracy in accord with widely accepted justifications for countermajoritarian judicial review. This Article first describes in detail how courts exhibit a frustrating reticence to accept jurisdiction over cases that present questions relating to core climate policy, such as whether large emitters or fossil fuel producers have common law liability for climate harms and whether the government has a common law or constitutional duty to address climate change. In not a single case raising such claims (and they number well over thirty) has a court permitted the case to proceed to trial. Courts dismiss these claims under the mantle of a variety of justiciability doctrines (standing, political question doctrine, displacement); these doctrines often serve as vessels for courts to exercise judicial restraint, and courts\u27 language and reasoning in the climate cases confirms that the courts are, indeed, motivated by concerns of judicial overreach. The Article then offers a positive account for why judicial engagement in the climate cases is consistent with our system of democracy, even as understood by seminal scholars who define relatively narrow boundaries for countermajoritarian judicial review. In particular, the Article will situate arguments for judicial review in climate cases within the work of John Hart Ely, Jurgen Habermas, and Frank Michelman