City versus Countryside: Environmental Equity in Context

This Article takes an approach to the problem of environmental equity that is different from the remedies advocated by the leaders of the environmental equity movement. The plea that the benefits of environmental protection be extended to all groups in society is, of course, a legitimate one, but the movement is too narrowly focused and its aims are too modest. I dissent from the two central premises held by environmental equity advocates. First, the movement assumes that judicially recognized and enforced rights will lead to improved public health. Second, the movement asserts that disadvantaged communities should adopt a “Not in My Backyard” (NIMBY) strategy. In contrast, I argue that the current focus of the environmental equity movement, important as it is, is too narrow because the legal strategy of the civil rights movement is largely inapplicable to environmental issues. Environmental protection is not a rights-based movement. Thus, the judiciary’s role in promoting environmental quality is limited compared to its role in promoting racial justice through the recognition and enforcement of constitutionally-based civil rights. In addition, I argue that the NIMBY strategy is equally shortsighted. Environmental equity takes current environmental protection strategies as a given at a time when the science and ethics of environmental protection are undergoing a profound re-evaluation

The Coiled Serpent of Argument: Reason, Authority, and Law in a Talmudic Tale

One of the most celebrated Talmudic parables begins with a remarkably dry legal issue debated among a group of rabbis. A modern reader should think of the rabbis as a collegial court, very much like a secular appellate court, because the purpose of their debate is to generate edicts that will bind the community. The issue under debate concerns the ritual cleanliness of a baked earthenware stove, sliced horizontally into rings and cemented back together with unbaked mortar. Do the laws of purity that apply to uncut stoves apply to this one as well? This stove is the so-called oven of Akhnai (oven of serpents). Presumably, its horizontal bands separated by mortar made it look like a coiled serpent; but according to the Talmud, it is the oven of Akhnai because the legal debate coiled the rabbis in serpentine arguments. Therein lies a remarkable tale

The Ammanati Affair: Seven Centuries Old, and not Feeling the Age

The enactments of the UNCITRAL Model Law on Cross-Border Insolvency (“UNCITRAL Model Law”) and the European Regulations on insolvency proceedings have promoted an incremental approach towards substantive harmonization. This strategy has not remained unquestioned. One of the major criticisms is that such a course of action overlooks the nature of the issues currently raised in multi-national and cross-disciplinary bankruptcy procedures. This article focuses on the Anglo-American bankruptcy tradition. It adopts a doctrinal methodology to question the conclusion that “collectivity” is and should be a procedural, objective and secondary notion in light of two case studies. It suggests that in the context of cross-border, cross-disciplinary cases, equitable concepts could be employed to introduce a more nuanced understanding of the notion of “collectivity.” This should facilitate the recognition of foreign bankruptcy proceedings alongside with their inclusiveness, finality and certainty. This article acknowledges that some of the discussed issues can be ascribed to the lack of mandatory guidance on group bankruptcies. This aspect has not been ignored. Recently, the EU Regulation 2015/848 on Insolvency Proceedings (“EU Recast Regulation”) has included a section on the treatment of group bankruptcies, albeit the implementation of its provisions is voluntary. A comprehensive recitation of the current debate, the existing challenges, and the solutions proposed and implemented to date are beyond the limits of this article. A cursory analysis of them would not do the issues justice, hence it is omitted from this text

Incentivizing the Utilization of Pharmacogenomics in Drug Development

Pharmacogenomics, the study and development of compounds according to how an individual’s genes affects the body’s response to drugs, holds enormous promise for increasing the safety and efficiency of drug development while decreasing adverse reactions and the trial-and-error nature of drug prescription. However, pharmacogenomics may not be the panacea for all development and prescription problems. This article explores some of the obstacles to pharmacogenomic advancement including industry reluctance to pursue research because of potentially prohibitive costs associated with developing products and legal liability concerns. The implications pharmacogenomics has for drug research and development as well as various areas of law will be discussed in light of current FDA regulation and guidance and the Orphan Drug Act. An ideal system will advance, rather than hinder, appropriate technological progress while protecting the rights of individuals and ensuring that they receive the best medical treatment available

Pluralism and Proceduralism

Cohen on Hampshire's take on Rawl

Legal Phenomena, Knowledge, and Theory: A Cautionary Tale of Hedgehogs and Foxes

This article analyzes the susceptibility of areas of legal regulation to being organized or explained by top-down deductive theories of general applicability. It hypothesizes that at least three variables determine in part the likely relevance of general theories to sets of legal phenomena, ambiguity (gaps in the law), unpredictability (computational intractability), and the comparative need for specialized and common sense reasoning. We hypothesize that as ambiguity, unpredictability, and the utility of common sense reasoning go up, the amenability of a set of legal phenomena to general theoretical approaches decreases. We thus predict that the meaning of negligence will be resistant to theoretical approaches, both economic and corrective justice, and that the nature of antitrust law will embrace the microeconomic approach. We test these predictions in various ways and find support for both of them

Radical Crusaders and a Conservative Church: Attitudes of Populists toward Contemporary protestantism in Kansas

Money damages can operate to restore the dignity of a person who has been injured in tort or deprived of property. A financial award or settlement conveys an acknowledgment of the wrong and signals the reestablishment of equity between defendant and plaintiff. Whether the award is seen as adequate to fully restore dignity is influenced by context, especially comparison cases. And financial compensation directly provided by the defendant holds greater promise for dignity restoration