Texas A&M Law Review最新文献

{"title":"Managing Hurricane (And Other Natural Disaster) Risk","authors":"R. Jerry","doi":"10.37419/LR.V6.I2.3","DOIUrl":"https://doi.org/10.37419/LR.V6.I2.3","url":null,"abstract":"With the data showing that hurricanes are the most likely and serious of all of these disasters, we return to Hurricane Harvey. No one living in Texas—especially in the cities of Houston, Port Arthur, Bridge City, Rockport, Wharton, Conroe, Port Aransas, and Victoria, or more generally in the counties of Harris, Aransas, Nueces, Jefferson, Orange, Victoria, Calhoun, Matagorda, Brazoria, Galveston, Fort Bend, Montgomery, and Wharton—needs to be told that the U.S. needs a better approach to managing hurricane and other natural disaster risk, both in terms of pre-disaster planning and post-disaster recovery. Texans are not alone, as survivors of Hurricanes Katrina, Sandy, Irma, Maria, Florence, Michael, and others will be quick to agree. This Article primarily examines hurricane risk through the optic of insurance, but, as the discussion will show, a much larger lens is needed if we are to have a chance of improving our management of this enormous, and growing, problem.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128835352","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Strategic Institutional Positioning","authors":"Donald J. Kochan","doi":"10.37419/LR.V6.I2.1","DOIUrl":"https://doi.org/10.37419/LR.V6.I2.1","url":null,"abstract":"The administrative state has emerged as a pervasive machine that has become the dominate generator of legal rules—despite the fact that the U.S. Constitution commits the legislative power to Congress alone. When examining legislation authorizing administrative agencies to promulgate rules, we are often left asking whether Congress “dele- gates” away its lawmaking authority by giving agencies too much power and discretion to decide what rules should be promulgated and to determine how rich to make their content. If the agencies get broad authority, it is not too hard to understand why they would fulsomely embrace the grant to its fullest. Once agencies are let loose by broad grants of rulemaking authority and they are off to the races, we are also often left scratching our heads wondering why Congress fails to intervene ex post to alter the law, to check administrative agency overreach, or to clarify its intent and preferences. This Essay seeks to explain why none of the institutional dynamics we observe in adminis- trative law should be surprising, with particular emphasis on environ- mental laws and rules. It will explain why both Congress and agencies have strategic interests at stake that cause them to position their activ- ities in manners that make each complicit in expansion of the regula- tory state and the collapse of the containment walls designed to keep lawmaking inside Congress.\u0000\u0000This Essay specifically critiques Congress for its abdication of re- sponsibility in the natural resources and environmental space—a place where the problem of congressional acquiescence in the demise of its own power is particularly acute. This Essay will begin by discuss- ing the necessity of legislative clarity and intervention in these fields, but it will also contemplate why we often see neither. It will then pro- ceed to some specific examples that illustrate these points.\u0000\u0000Part II introduces fundamental ideas of separation of powers and the Framers’ design for adherence to that separation. Part III identi- fies motivations for Congress to legislate broadly and to disengage from a supervisory role over agencies, despite contrary intentions in the Framers design. Part IV discusses agencies as self-interested actors that will accept legislative-like authority if it is offered to them. Part V uses case studies on National Monuments and the Waters of the United States (“WOTUS”) Rule as demonstrative of the strategic positioning phenomenon. And, Part VI explains why environmental law is an area in which we can predict a high frequency of these problems of congressional abdication that enables administrative overreach.\u0000\u0000By revealing these realities of strategic positioning by both Con- gress and the Executive, it can be better understood why an environ- mental law generated without optimal (or even fully constitutional) engagement by Congress is increasingly developing. The goal is to ex- pose the threat these institutional interests pose to preserving the se","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"70 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127359700","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"You Gotta Fight For Your Right To Repair","authors":"D. Moore","doi":"10.37419/lr.v6.i2.6","DOIUrl":"https://doi.org/10.37419/lr.v6.i2.6","url":null,"abstract":"Consumers are keeping their electronic devices longer today than in the past because the prices of the devices have increased. Increased prices have culminated in more consumers needing their devices repaired. In turn, manufacturers use the Digital Millennium Copyright Act, a federal law, and digital rights management to force consumers to get their devices repaired by either the device manufacturer or one of its authorized repairers. In response, states have considered right-to-repair laws which require manufacturers to make repair tools, equipment, and software available to device owners and independent repair shops. While almost half of the country’s state legislatures have considered these bills, no state has enacted one fearing that the Digital Millennium Copyright Act will preempt any state’s action on the issue. Critics of these bills argue that the bills conflict with federal law, and therefore, federal law preempts right-to-repair laws. However, this Article argues that the Digital Millennium Copyright Act would not preempt a state’s right-to-repair law.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"178 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124434923","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Modern Day Bucket Shops?","authors":"John T. Holden, R. Rodenberg","doi":"10.37419/LR.V6.I3.2","DOIUrl":"https://doi.org/10.37419/LR.V6.I3.2","url":null,"abstract":"The rapid emergence of online daily fantasy sports has raised questions as to why the contests are allowed, while other forms of gambling are restricted. Historically, “bucket shops” were banned enterprises where businesses would effectively accept wagers on whether companies’ stock prices would go up or down. There was never an underlying investment in companies themselves, only a deposit into a “bucket.” While bucket shops have largely faded, we examine whether they have disappeared in name only. Our analysis opens up another avenue for regulators beyond the antiquated skill-versus-chance evaluation typically applied to gambling activities and suggests that certain fantasy contests may run counter to Commodity Futures Trading Commission regulations. Applying this existing regulatory framework would likely enhance consumer protection and market integrity.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122619950","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Whose Land Is It Anyway?","authors":"Aimee Kline, Élan Moore, Elizabeth A. Ramey, Kevin Hernandez, Lauren Ehrhardt, Megan Reed, Morgan Parker, Sam Henson, Taylor Winn, T. Wood","doi":"10.37419/lr.v6.arg.1","DOIUrl":"https://doi.org/10.37419/lr.v6.arg.1","url":null,"abstract":"This Article dives into Ghana’s complex land-registration system, which is influenced by both statutory and customary law. Section II discusses Ghana’s statutory land laws. Section III provides a brief overview of Ghana’s customary land laws. Section IV discusses several obstacles within Ghana’s land-administration system.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122267526","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Murphy v. NCAA","authors":"S. Landers","doi":"10.37419/LR.V6.ARG.3","DOIUrl":"https://doi.org/10.37419/LR.V6.ARG.3","url":null,"abstract":"“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Thus, “Congress may not simply ‘commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.’” In Murphy v. NCAA, the United States Supreme Court held that a federal law that prevents States from legalizing sports gambling “violates the anticommandeering rule.” The Supreme Court’s decision in Murphy reemphasizes a fundamental principle of dual sovereignty—Congress is prohibited from “issu[ing] direct orders to the governments of the States.”","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"434 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122736522","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Social Cost of Carbon, Greenhouse Gas Policies, and Politicized Benefit/Cost Analysis","authors":"B. Zycher","doi":"10.37419/LR.V6.I1.3","DOIUrl":"https://doi.org/10.37419/LR.V6.I1.3","url":null,"abstract":"Benefit/cost analysis can be a powerful tool for examination of proposed (or alternative) public policies, but, unsurprisingly, decisionmakers’ policy preferences can drive the analysis, rather than the reverse. That is the reality with respect to the Obama Administration computation of the social cost of carbon, a crucial parameter underlying the quantitative analysis of its proposed climate policies, now being reversed in substantial part by the Trump Administration. The Obama analysis of the social cost of carbon suffered from four central problems: the use of global benefits in the benefit/cost calculation, the failure to apply a 7% discount rate as required by Office of Management and Budget guidelines, the conflation of climate and GDP effects of climate policies, and the inclusion of non-climate effects of climate policies as co-benefits, as a tool with which to overcome the trivial temperature and other climate impacts of those policies. Moreover, the Obama analysis included in its “market failure” analysis the fuel price parameter that market forces are likely to incorporate fully. This Article suggests that policymakers and other interested parties would be wise to concentrate on the analytic minutia underlying policy proposals because policy analysis cannot be separated from politics.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132862732","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Collaborative Management as a Mechanism For Incentivizing Private Landowners and Protecting Endangered Species","authors":"Ashley Graves","doi":"10.37419/lr.v6.i1.11","DOIUrl":"https://doi.org/10.37419/lr.v6.i1.11","url":null,"abstract":"Currently, the Endangered Species Act is falling short of its potential. Even though the Endangered Species Act has provided protection for endangered and threatened species and helped some species to recover and even thrive, the fact that most listed species’ habitat is on private land remains a hurdle that has not yet been overcome. In fact, the stringent requirements imposed upon private landowners often put endangered and threatened species at risk as some private landowners will use any means possible to stop the government from finding endangered or threatened species on their land. Because of this, the United States Fish and Wildlife Service should consider implementing a policy of collaborative management to ensure that protected species receive the protection they need to recover and thrive. To do this, the agency should consider applications by private landowners to participate in the collaborative process on a case-by-case basis and work with a strong, preferably neutral, entity to ensure that no individual stakeholder—whether government, company, or individual—takes advantage of the collaborative process. These policies can be best implemented through the Endangered Species Act’s experimental populations clause before moving the collaborative-management policy towards broader implementation across other areas of the Endangered Species Act. Right now, the question is no longer if agencies can implement collaborative strategies, but how these agencies can begin the process of reforming their regulations to include collaboration. Therefore, this Article offers recommendations on how the U.S. Fish and Wildlife Service can implement collaborative management to best protect both endangered and threatened species and provide incentives to private landowners to participate in the process.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122420064","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Agency Coordination of Private Action","authors":"K. Schulz","doi":"10.37419/lr.v6.i1.9","DOIUrl":"https://doi.org/10.37419/lr.v6.i1.9","url":null,"abstract":"This Article explores the previously overlooked role of relational contracting in forming and maintaining public-private partnerships. Relational contracting generally describes firms using formal but legally non-binding agreements to collaborate on shared objectives. Why do parties invest in forming elaborate contracts that they do not—and cannot—enforce in court? Contract theory suggests that the very act of contracting is relationship-building; it generates commitment, trust, cooperation, a win-win philosophy, and strengthened communication. Writing down goals and intentions allows parties to clarify expectations while maintaining flexibility for unforeseen conditions. This Article demonstrates that agencies also use relational contracting— creating unenforceable written agreements to build relationships with external actors. To shed light on agencies’ use of relational contracting, this Article provides a novel review of the recovery planning process required by the Endangered Species Act. A surprising finding emerges: private groups are providing crucial resources and logistical support to prevent the extinction of endangered species. Tribes, states, nongovernmental organizations, and sportsmen’s groups are providing necessary resources to further agency action. By orchestrating private action through recovery planning documents, the agency can garner the resources necessary to undertake species translocations, which it could not unilaterally facilitate. Although the plans are not judicially enforceable, they nevertheless play a coordinating and commitment-generating role in facilitating private actors to engage in recovery efforts. This example highlights the broader trend of relational contracting building and formalizing relationships between agency and non-agency actors. Environmental impact statements, forest management plans, and recovery plans for endangered species are all examples of such “relational contracts” governing inter-agency and private-public collaborations. Viewed in this light, seemingly prosaic planning documents are, in fact, a crucial component in facilitating many agency collaborations. Descriptively, this account adds institutional detail to literatures on new governance and public-private partnerships. Normatively, it raises questions about whether the benefits of contracting offsets the potential distributional inequities and mechanisms to shroud government actions created by the practice.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126364580","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Drought and Public Necessity","authors":"R. Craig","doi":"10.37419/LR.V6.I1.4","DOIUrl":"https://doi.org/10.37419/LR.V6.I1.4","url":null,"abstract":"Drought is a recurring—and likely increasing—challenge to water rights administration in western states under the prior appropriation doctrine, where “first in time” senior rights are often allocated to non-survival uses such as commercial agriculture, rather than to drinking water supply for cities. While states and localities facing severe drought have used a variety of voluntary programs to reallocate water, these programs by their very nature cannot guarantee that water will in fact be redistributed to the uses that best promote public health and community survival. In addition, pure market solutions run the risk that “survival water” will become too expensive to buy because prices naturally rise—sometimes dramatically—during shortages. Using the example of the Brazos River drought of 2010 to 2013, this Article explores the potential role of the common law doctrine of public necessity in reallocating water during extreme drought. Building on my earlier work examining the potential use of public necessity in climate change adaptation for water law and coasts, this Article nevertheless focuses more narrowly on the specific issue of water crisis—the moment during an extreme drought when cities and power plants face a real inability to supply the general public with drinking water and electricity. At that moment, and assuming that cities have otherwise reasonably prepared for drought, the doctrine of public necessity should allow state water agencies in western states to reallocate water away from senior water rights holders whose water rights are for non-survival uses.","PeriodicalId":316761,"journal":{"name":"Texas A&M Law Review","volume":"63 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134121108","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}