NewYorkUniversity
LawReview
Current Issue

Volume 82, Number 6

December 2007
Articles

The Carbon-Neutral Individual

Michael P. Vandenbergh, Anne C. Steinemann

Reducing the risk of catastrophic climate change will require leveling off greenhouse gas emissions over the short term and reducing emissions by an estimated 60–80% over the long term. To achieve these reductions, we argue that policymakers and regulators should focus not only on factories and other industrial sources of emissions but also on individuals. We construct a model that demonstrates that individuals contribute roughly one-third of carbon dioxide emissions in the United States. This one-third share accounts for roughly 8% of the world’s total, more than the total emissions of any other country except China, and more than several continents. We contend that it is desirable, if not imperative, that governments address emissions from individual behavior. This task will be difficult because individual behaviors, including idling cars and wasting electricity, are resistant to change, even when the change is rational. Mindful of the costs, we propose measures that have a high likelihood of success. We draw on norms theory and empirical studies to demonstrate how legal reforms can tie the widely held abstract norm of personal responsibility to the emerging concrete norm of carbon neutrality. We suggest that these legal reforms could push carbon neutrality past a tipping point, directly influencing many carbon-emitting individual behaviors and building the public support necessary for policymakers to address the remaining sources.

“Stranger than Fiction”: Taxing Virtual Worlds

Leandra Lederman

Virtual worlds are increasing in commercial importance. As the economic value of computer-generated spaces soars, questions of how to apply our tax law to transactions within them will inevitably arise. In this Article, Professor Leandra Lederman argues for federal income tax treatment that reflects the differences between “game worlds” and “unscripted worlds,” arguing that the former should receive more favorable tax treatment than the latter. Specifically, she argues that transactions in game worlds such as World of Warcraft should not be taxed unless the player engages in a real-market sale or exchange. By contrast, in intentionally commodified virtual worlds such as Second Life, federal income tax law and policy counsel that in-world sales of virtual items be taxed regardless of whether the participant ever cashes out.

Asymmetrical Regulation: Risk, Preemption, and the Floor/Ceiling Distinction

William W. Buzbee

If the federal government has constitutional power to address a social ill, and hence has power under the Supremacy Clause to preempt state, local, and common law regimes, is there a principled rationale for distinguishing federal standards that set a federal floor or ceiling? At first blush, the two appear to be mere flip sides of the same federal power: The choice of a floor reflects a goal of minimizing risk, while ceilings reflect concern with excessively stringent regulation.

This Article argues, however, that these two regulatory choices are fundamentally different in their institutional implications. Floors embrace additional and more stringent state and common law action, while ceilings are better labeled a “unitary federal choice” due to how they preclude any other regulatory choice by state regulators and also eliminate the possibility of the different actors, incentives, and modalities of information elicitation and proof that common law settings provide. Advocates of free markets respond that this is precisely the idea—regulatory certainty is enhanced with a unitary federal choice, allowing manufacturers to plan with confident knowledge of the regulatory terrain, unbuffeted by an array of uncoordinated actors.

Debate over floors versus ceilings was, until recently, largely hypothetical, due to the rarity of federal imposition of ceilings. During the past year, however, in settings ranging from product approvals to regulation of risks posed by chemical plants to possible climate change legislation regarding greenhouse gases, legislators and regulators have embraced the broad, preemptive impact of unitary federal choice preemption. The federal action regarding such risks would be the final regulatory choice. But under what theory of regulation and legislation can one be confident that placing all decisionmaking power in one institution at one time will lead to appropriate standard setting? In fact, advocates of risk regulation, “experimentalist regulation” scholars, and skeptics about the likelihood of public-regarding regulation all call for attention to pervasive risks of regulatory failure. Agency and legislative inertia, information uncertainties and asymmetries, outdated information and actions, regulatory capture, and a host of other common regulatory risks create a substantial chance of poor or outdated regulatory choice.

Considering these pervasive risks of regulatory failure, the principled distinctions between floor and ceiling preemption become apparent. Vesting all decisionmaking power in one institution can freeze regulatory developments. Unitary federal choice preemption is an institutional arrangement that threatens to produce poorly tailored regulation and public choice distortions of the political process, whether it is before the legislature or a federal agency. Floor preemption, in contrast, constitutes a partial displacement of state choice in setting a minimum level of protection, but leaves room for other actors and additional regulatory action. Floors anticipate and benefit from the institutional diversity they permit. This Article closes by showing how the institutional diversity engendered by retaining multiple layers of law and regulatory actors creates conditions conducive to reassessment and adjustment of rigid or outdated regulation.

Notes

Where Are All the Left-Wing Textualists?

Paul Killebrew

What Professor William Eskridge once called “the new textualism” is not so new anymore. Statutory textualism has adherents on the Supreme Court, throughout the federal judiciary, and, increasingly, in academia as well. And almost all of them are politically conservative. Why is that true? This Note contends that it need not be. Taken at face value, textualism serves neither conservative nor liberal ends. However, those most closely identified with textualism—namely, Justice Antonin Scalia and Judge Frank Easterbrook—practice a form of textualism that creates institutional dynamics that tend to reconcile with a preference for limited government. Their textualism, which this Note dubs “clarity-driven textualism,” constrains the functioning of Congress, executive agencies, and judges in ways that make government hard to do: Statutes are hard to write, agencies have tightly circumscribed authority, and judges have few opportunities to exercise discretion. This Note argues that textualism alone will not necessarily produce these outcomes. By identifying how clarity-driven textualism departs from the bare requirements of textualism itself, this Note seeks to rescue textualism’s powerful interpretive approach from its current political entanglements.

Juvenile Curfews and the Breakdown of the Tiered Approach to Equal Protection

David A. Herman

In constitutional challenges to juvenile curfews, the “tiers of scrutiny” framework usually relied upon to resolve Equal Protection cases has failed to constrain courts’ analyses. Courts have applied all three tiers of scrutiny, have reached opposite results under each tier, and have explicitly modified various tiers. This result arises from a discord between the problem presented by juvenile curfew laws and the tiers of scrutiny framework itself: Curfew laws impact neither a fully fundamental right nor a fully suspect classification, but nevertheless affect a substantial liberty interest and a vulnerable class of people. This Note argues that courts should bypass the abstract discussion of “tiers” and “fundamental rights” and focus directly on what role courts should play, if any, in shielding juveniles from a democratically enacted curfew. The Note proposes an aggressive form of intermediate balancing similar to the Second Circuit’s approach in Ramos v. Town of Vernon.

In the Shadow of Article I: Applying a Dormant Commerce Clause Analysis to State Laws Regulating Aliens

Erin F. Delaney

State laws regulating aliens are increasing in number and scope. Yet the current doctrinal approaches to assessing the constitutionality of these laws fail to provide a predictable or desirable framework for distinguishing between permissible and impermissible state regulation of aliens. This Note, by analogizing to the Dormant Commerce Clause doctrine, aims to offer another approach to reviewing state laws regulating aliens—one that takes into consideration the state-to-state dimension of the national interests at stake in immigration law and policy, and that may provide a better means of addressing animus-based state laws.

Brady Materiality Before Trial: The Scope of the Duty to Disclose and the Right to a Trial by Jury

Christopher Deal

Brady v. Maryland requires prosecutors to disclose to criminal defendants all material, favorable evidence in the government’s possession. Evidence is material if its disclosure would have created a reasonable probability of a different verdict. Though materiality may correctly guide appellate courts in deciding when to reverse convictions, the author contends that it is both impractical and unconstitutional to ask prosecutors to use materiality as the measure of their disclosure obligations before trial. It is impractical because it requires prosecutors convinced of the defendant’s guilt to decide what combination of evidence, if disclosed, would create a reasonable probability of an acquittal at the end of a trial that has yet to begin. It is unconstitutional so long as due process means something other than that which produces the right outcome. This Note suggests that prosecutors should employ a balancing test based on the interaction of Brady disclosure rules and the defendant’s right to a trial by jury to determine when favorable evidence must be disclosed. This balancing test provides prosecutors with a disclosure standard that is simple, constitutional, and compatible with courts’ continued use of the materiality standard after trial.

What Commonwealth v. Alger Cannot Tell Us About Regulatory Takings

Kevin P. Arlyck

The most intractable questions in takings law involve determinations as to when compensation must be paid for government regulation of private property. Scholars and judges have looked to the history of takings law in the search for guiding principles that can inform, if not resolve, such questions. The 1851 opinion of Chief Justice Lemuel Shaw of the Massachusetts Supreme Judicial Court in Commonwealth v. Alger has figured prominently in these investigations.

This Note argues that such efforts have overlooked other relevant cases Shaw decided, and therefore do not fully appreciate the extent to which Shaw’s jurisprudence was informed by a flexible and instrumental view of how certain principles in takings law should be applied to decide cases. Accordingly, this new perspective on Shaw raises doubts about the extent to which a resort to history can provide effective guidance in resolving the current takings muddle.