Water Quality Trading and Agricultural Nonpoint Source Pollution: An Analysis of the Effectiveness and Fairness of EPA's Policy on Water Quality Trading

Water quality problems continue to plague our nation, even though Congress passed the Clean Water Act (CWA) to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters"1 more than three decades ago. During the past thirty years, the dominant sources of water pollution have changed, requiring us to seek new approaches for cleaning up our waters. Water quality trading has been heralded as an approach that can integrate market mechanisms into the effort of cleaning up our water. This Article examines the Environmental Protection Agency's (EPA) policy on water quality trading and the prospects for water quality trading to help improve water quality.Part II briefly describes our water quality problems and causes. Part III examines the theoretical basis for trading and the EPA's Water Quality Trading Policy. Part IV discusses the potential impact of total maximum daily loads (TMDLs) on water quality trading, and Part V analyzes potential problems that water quality trading programs confront. Part VI addresses distributional and efficiency concerns that arise when considering trading and agricultural nonpoint source pollution. Part VII then examines issues relating to water quality trading and state laws before reaching conclusions and recommendations in Part VIII

It’s Really About Sex: Same-Sex Marriage, Lesbigay Parenting, and the Psychology of Disgust

The effects of gay and lesbian parenting on children has been the touchstone issue in much of the recent state litigation on same sex marriage, with opponents of same sex marriage arguing that there is a rational basis for denying marriage rights to gays and lesbians because the central purpose of marriage is procreation and childrearing, but that children are harmed or disadvantaged when raised by gay or lesbian parents. To interrogate this claim, I critique the social science research that informs the concerns frequently expressed about the possible negative effects of lesbigay parenting on children\u27s emotional, psychosocial, and sexual development. In particular, I focus on research relevant to whether growing up in a lesbigay household is as positive an experience for children as growing up in a heterosexual household, as much of the literature to date has addressed the issue of whether lesbigay parenting is harmful to children. I conclude that the research fails to support the theory that denying marriage or parenting rights to same sex couples serves the welfare of children. I further argue that public opposition to gay marriage, particularly in the context of lesbigay parenting, is animated by a deeper concern - the proverbial “elephant in the room” on gay rights issues. That elephant is the visceral disgust reaction that many Americans feel toward homosexual sex, and the resulting moral intuition that homosexuality and homosexual relationships are immoral. Thus, many people will conclude that it is better for children to be raised in heterosexual households because they do not want children exposed to the lesbigay “lifestyle.” Nor do they want to increase the “risk” that children will develop a homosexual orientation if they are raised by lesbigay parents. The article discusses new psychological research on moral decision making, which suggests that the “moral” emotion of disgust is at the root of much of the opposition to gay rights. The disgust reaction is likely a byproduct of human evolution that fails to inform rational judgments about the policy questions surrounding lesbigay parenting and marriage rights

Pinkerton Short-Circuits the Model Penal Code

I show that the Pinkerton rule in conspiracy law is doctrinally and morally flawed. Unlike past critics of the rule, I propose a statutory fix that preserves and reforms it rather than abolishing it entirely. As I will show, this accommodates authors like Neil Katyal who have defended the rule as an important crime fighting tool while also fixing most of the traditional problems with it identified by critics like Wayne LaFave. Pinkerton is a vicarious liability rule that makes conspirators criminally responsible for the foreseeable crimes of their coconspirators committed in furtherance of the conspiracy. It has two big problems: (1) Doctrinally, it breaks the logic of the many state criminal codes that are based on the Model Penal Code. (2) Ethically, it infringes the culpability constraint on the criminal law by imposing excessive punishments on defendants who did not even consciously suspect that their coconspirators would commit additional crimes that were not the object of the conspiracy. These problems are most acute in Texas, where Pinkerton can be combined with capital murder charges to produce automatic life without parole sentences. The Texas example is an extreme illustration of the problem of unintended consequences when state legislators tinker with the carefully drafted, interlocking provisions of a model code. The new statute I propose would put the penal code back in order and respect the culpability constraint. In the latter aspect, it is informed by leading work in philosophical ethics on blameworthiness and culpability

The Complexity Dilemma in Policy Market Design

Regulators are increasingly pursuing their policy objectives by creating markets. To create a policy market, regulators require firms to procure a product that is socially useful but that confers little direct private benefit to the acquiring party. Examples of policy markets include pollutant emissions trading programs, renewable energy credit markets, and electricity capacity markets. Existing scholarship has tended to analyze policy markets simply as market-based regulation. Although not inaccurate, such inquiries are necessarily incomplete because they do not focus on the distinctive traits of policy markets. Policy markets are neither typical regulations nor typical markets. Concentrating on policy markets as a distinctive type of market brings to light common characteristics of such markets, which in turn generates insights into how they can be used more effectively to implement policy. In particular, this Article focuses on a recurring fundamental challenge in policy market design: managing complexity. Typical markets manage complexity through market forces. As a regulatory creation, however, policy markets require regulators to manage their complexity. This poses what we call the complexity dilemma, which requires regulators to balance strong pressures both toward and away from complexity. The central argument of this Article is that although policy markets are an important part of a regulator’s toolkit, they are also subject to complexity that limits their usefulness. Understanding the complexity dilemma and its crucial role in policy market design forms an essential step toward progress in improving the design and function of these markets

Disease Management and Liability in the Human Genome Era

The completion of a rough draft of the Human Genome presents both tremendous potential for improvements in health care delivery and challenges to providing appropriate incentives that will bring forth new treatments while protecting individuals and groups from genetic discrimination. As genetics becomes an integral part of health care delivery, there are no existing coherent legal doctrines for balancing the risks and benefits of this technological and scientific achievement. Developing a coherent legal approach to these risks and benefits requires a reexamination of the purposes of the liability doctrines that govern the management of disease processes. At the moment, a genetic approach to human disease primarily involves attempts at prevention - which means genetic screening of individuals, fetuses in utero, and embryos. This screening process requires the cooperation of population groups identified by genotype, or ethnic or social group. The nature of this cooperation or the voluntariness of the consent to donate tissue and other samples of DNA is now the subject of at least one lawsuit in which the plaintiffs claim that the physician/scientist should have disclosed his intention to patent the gene and screening test for a rare genetic disorder. In order to develop a framework to resolve this case and other liability claims in the Human Genome Era, this article analyzes and proposes a coherent theory of liability for mishaps. This theory is based on: 1) the difference between informed consent liability doctrines in research and clinical settings; 2) the relationship between the regulatory scheme for research and liability claims; and 3) the implications of the Nuremberg Code for determining the parameters of informed consent in research settings

The Missing Link Between Insider Trading and Securities Fraud

In a recent article, I argued that diversified investors - the vast majority of investors - would prefer that securities fraud class actions under the 1934 Act and Rule 10b-5 be dismissed in the absence of insider trading or similar offenses during the fraud period. See Richard A. Booth, The End of the Securities Fraud Class Action as We Know It, 4 Berk. Bus. L. J. 1 (2007), http://ssrn.com/abstract=683197. In this article, I draw on the classic case, SEC v. Texas Gulf Sulfur Company, to show that the federal courts originally viewed securities fraud as inextricably connected to insider trading and that the recognition of separable causes of action has caused much of the difficulty in this area. I argue that the federal law of insider trading fails to capture many of ways that insiders can misappropriate stockholder wealth. For example, timing and backdating in connection with stock option grants likely do not constitute insider trading but likely do constitute misappropriation. Thus, I here address the question of how to define misappropriation of stockholder wealth in the context of a derivative action based on securities fraud. I conclude that the question is essentially one of state law fiduciary duty that should be decided by state courts under the emerging duty of candor. Although this solution raises potential conflicts with federal law in general and SLUSA in particular, I argue that these conflicts are no different from conflicts that arise in many state law cases that touch on issues of disclosure. Moreover, I argue that handling such claims under state law is more consistent with the federal statutory scheme and ultimately preferable to developing or maintaining a separate body of federal law addressing either securities fraud or insider trading

Tobia Ippolito v. Lisa Ippolito

USDC for the District of New Jerse

Silvie Pomicter v. Luzerne County Convention Ctr

USDC for the Middle District of Pennsylvani