Date of Publication:
Michael S. Finch, Florida Appellate Law: Certiorari Review of Non-Final Orders: Introduction, 42 Stetson L. Rev. 373 (2013)Clicking on the button will copy the full recommended citation.
Date of Publication:
Roberta Flowers and Rebecca C. Morgan, Ethics In The Practice Of Elder Law (2013)Clicking on the button will copy the full recommended citation.
Date of Publication:
Royal C. Gardner, The Legal Status of Environmental Credit Stacking, 40 Ecology L.Q. 713 (2013)Clicking on the button will copy the full recommended citation.
Environmental credit markets have been established to offset impacts to wetlands, endangered species habitat, water quality, and the global climate system. As these markets mature, participants are exploring the concept of credit stacking, whereby a conservation project or parcel produces different types of mitigation credits for multiple markets (such as wetland and endangered species credits or water quality and carbon sequestration credits). If these stacked credits are unbundled, they may be sold in different credit markets to offset impacts from different activities. Such transactions raise concerns about additionality, interagency coordination, verification of ecological improvements, monitoring and management, and transparency. This Article examines eight different credit stacking scenarios and the emerging rules that govern the sale of credits. Generally, there is diversity in how different federal and state agencies handle credit stacking, and they have not issued clear rules on when unbundling stacked credits is permissible. The Article closes with considerations that agencies could take into account in developing a credit stacking protocol to avoid double counting and ecological loss. The credit stacking scenario where it may be most appropriate to consider unbundling is when the accounting units are pollutant-specific, such as is the case with water quality and carbon markets.
Date of Publication:
Louis J. Virelli, Judicial Deference to Congress and the Separation of Powers, 98 Iowa L. Rev. Bulletin 28 (2013)Clicking on the button will copy the full recommended citation.
Date of Publication:
Marco Jimenez, Remedial Consilience, 62 Emory L.J. 1309 (2013)Clicking on the button will copy the full recommended citation.
This Article provides a new way of organizing and thinking about what is perhaps the most important, useful, and ubiquitous – yet misunderstood, neglected, and underdeveloped – area in all of law: remedies. Even though remedial issues are present in every case, too little theoretical attention has been paid to them, leaving a wide array of remedial doctrines – ranging from injunctions to declaratory decrees, punitive damages to contempt, and unjust enrichment to specific performance – in search of a unifying theory.
This Article is the first to offer such a theory. Specifically, I argue that the broad array of seemingly distinctive remedies, operating over diverse subject matter areas, can be organized and justified by way of four distinct but related remedial principles: the principles of restoration, retribution, coercion, and protection. Each principle focuses on either the victim or the wrongdoer from a distinct (ex ante or ex post) temporal perspective. These principles, in turn, allow one to organize and unify a large swath of seemingly unique and unrelated remedies under a broad conceptual umbrella.
More importantly, however, by showing that all remedies are little more than specific instantiations of general remedial principles, it is my hope that this Article – by identifying and exploring the relationship between and among these principles – can help judges, practitioners, and policy makers think more clearly about what they are doing, as a descriptive matter, and ought to be doing, as a normative matter, when awarding and justifying a remedy – a matter they must consider no less frequently than in every single case.
Date of Publication:
Louis J. Virelli, Science, Politics, and Administrative Legitimacy, 78 Mo. L. Rev. 511 (2013)Clicking on the button will copy the full recommended citation.
Science and politics often interact successfully in administrative law. Potential problems arise, however, when agencies make “counter-scientific” policy decisions — decisions that overlook otherwise uncontroverted scientific evidence in favor of political rationales. This short essay draws new attention to these counter-scientific policy determinations by asking if and under what circumstances they may be considered illegitimate in a constitutional democracy. More specifically, it asks how counter-scientific decisions impact three of the animating principles of administrative legitimacy — agency expertise, accountability and transparency, and efficiency — and identifies some additional variables that are useful to that analysis. Part II offers recent examples of three different forms of counter-scientific policy decisions. Part III outlines the three principles of legitimacy to be applied to those decisions. Part IV then evaluates counter-scientific policy decisions in light of each of those three principles, arguing that variables such as the scope of a particular agency’s expertise, the nature of that agency and its role in government, and the agency’s own claims as to how it is exercising its policymaking authority are critical to understanding the democratic viability of counter-scientific policy decisions. This insight is not only valuable in its own right, but also as a useful starting point in a more rigorous evaluation of counter-scientific agency decisions that could have powerful implications for policymaking as well as for administrative legitimacy in general.