In this Response to 'Federalism, Regulatory Lags, and the Political Economy of Energy Production,' Professor David Spence's first-to-market attempt to situate the highly charged political controversies surrounding hydraulic fracturing ("fracking") in the frame of federalism theory, I argue that the question of whether states or the federal government should regulate fracking has already been answered, and that but for outdated and underjustified exemptions to existing environmental statutes, fracking is already under the jurisdiction of federal regulators. In addition, I add to Professor Spence's attempt to match fracking's environmental impacts to the proper scale of governance in three ways. First, I examine several rationales commonly used to justify decentralization, rather than federalization, of environmental law, and find that they do not weigh in favor of exclusive state authority over fracking. Second, I argue that given the fast-paced growth in drilling activity across the country, fracking's environmental impacts should be analyzed with regard to their cumulative effects. When so viewed, it is clear that fracking gives rise to interstate, and even national, problems that must be addressed accordingly. Third, I argue that widespread impacts on rural America weigh in favor of federal regulation. In conclusion, I suggest that fracking's federalism choice question is an important one, and that the theoretical approach can help inform the political and regulatory process.
{"title":"Fracking and Federalism Choice","authors":"Michael Burger","doi":"10.7916/D8H41QM6","DOIUrl":"https://doi.org/10.7916/D8H41QM6","url":null,"abstract":"In this Response to 'Federalism, Regulatory Lags, and the Political Economy of Energy Production,' Professor David Spence's first-to-market attempt to situate the highly charged political controversies surrounding hydraulic fracturing (\"fracking\") in the frame of federalism theory, I argue that the question of whether states or the federal government should regulate fracking has already been answered, and that but for outdated and underjustified exemptions to existing environmental statutes, fracking is already under the jurisdiction of federal regulators. In addition, I add to Professor Spence's attempt to match fracking's environmental impacts to the proper scale of governance in three ways. First, I examine several rationales commonly used to justify decentralization, rather than federalization, of environmental law, and find that they do not weigh in favor of exclusive state authority over fracking. Second, I argue that given the fast-paced growth in drilling activity across the country, fracking's environmental impacts should be analyzed with regard to their cumulative effects. When so viewed, it is clear that fracking gives rise to interstate, and even national, problems that must be addressed accordingly. Third, I argue that widespread impacts on rural America weigh in favor of federal regulation. In conclusion, I suggest that fracking's federalism choice question is an important one, and that the theoretical approach can help inform the political and regulatory process.","PeriodicalId":438335,"journal":{"name":"University of Pennsylvania Law Review Online","volume":"62 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123709663","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}
The liberty of citizens in a democracy has two components – the negative liberty to be let alone and the positive liberty of self-government. Both are crucially important. The positive liberty of self-government must be balanced against the negative liberty of individuals to do as they choose. This important and familiar tension has been overlooked in the Supreme Court’s current campaign finance jurisprudence. While the Court has aggressively protected the individual’s interest in spending money to speak, without interference from the state, the Court has neglected the individual’s interest in deciding, along with others, that politics ought to be walled off from the market. Instead, the Supreme Court should safeguard not only the individual liberties of speech and action but also collective liberties of self-government.
{"title":"Resurrecting the Neglected Liberty of Self‐Government","authors":"Deborah Hellman","doi":"10.2139/ssrn.3070309","DOIUrl":"https://doi.org/10.2139/ssrn.3070309","url":null,"abstract":"The liberty of citizens in a democracy has two components – the negative liberty to be let alone and the positive liberty of self-government. Both are crucially important. The positive liberty of self-government must be balanced against the negative liberty of individuals to do as they choose. This important and familiar tension has been overlooked in the Supreme Court’s current campaign finance jurisprudence. While the Court has aggressively protected the individual’s interest in spending money to speak, without interference from the state, the Court has neglected the individual’s interest in deciding, along with others, that politics ought to be walled off from the market. Instead, the Supreme Court should safeguard not only the individual liberties of speech and action but also collective liberties of self-government.","PeriodicalId":438335,"journal":{"name":"University of Pennsylvania Law Review Online","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130705031","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}
Pub Date : 1900-01-01DOI: 10.4324/9781315095400-12
Shyamkrishna Balganesh
† 1 Most of these infirmities have been attributed to internal tensions within copyright law and policy, including the competing philosophies of access and control, use and exclusion, and rights and exceptions. Professor Stadler's insightful article documents these tensions and proposes a new way of mediating them. 2 She ar- gues that copyright law is best understood as instantiating a restriction on unfair competition and, consequently, that it should do little more than protect creators of original works from "competitive harm" in a previously identified ("relevant") market. 3 She goes on to propose that this principle be applied exogenously in determining the struc- ture of copyright, and that the copyright grant be reformulated to consist of no more than an exclusive right to distribute works pub- licly. 4
{"title":"RETHINKING COPYRIGHT: PROPERTY THROUGH THE LENSES OF UNJUST ENRICHMENT AND UNFAIR COMPETITION","authors":"Shyamkrishna Balganesh","doi":"10.4324/9781315095400-12","DOIUrl":"https://doi.org/10.4324/9781315095400-12","url":null,"abstract":"† 1 Most of these infirmities have been attributed to internal tensions within copyright law and policy, including the competing philosophies of access and control, use and exclusion, and rights and exceptions. Professor Stadler's insightful article documents these tensions and proposes a new way of mediating them. 2 She ar- gues that copyright law is best understood as instantiating a restriction on unfair competition and, consequently, that it should do little more than protect creators of original works from \"competitive harm\" in a previously identified (\"relevant\") market. 3 She goes on to propose that this principle be applied exogenously in determining the struc- ture of copyright, and that the copyright grant be reformulated to consist of no more than an exclusive right to distribute works pub- licly. 4","PeriodicalId":438335,"journal":{"name":"University of Pennsylvania Law Review Online","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115833953","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 Argument for Same-Sex Marriage","authors":"N. Tebbe, Deborah A. Widiss, Shannon Gilreath","doi":"10.31228/osf.io/wn3cb","DOIUrl":"https://doi.org/10.31228/osf.io/wn3cb","url":null,"abstract":"","PeriodicalId":438335,"journal":{"name":"University of Pennsylvania Law Review Online","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126478583","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}
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