This Article offers a theory of nuisance law based on information costs. Like trespass, much of the law of nuisance relies on a strategy of exclusion in which rights are defined using low-cost signals like boundary crossings that are only indirectly tied to particular uses. Nuisance law also supplements and fine-tunes this Blackstonian package of entitlements by means of a governance strategy, which relies on signals more directly tailored to particular uses. The information-cost advantage of strategies close to the exclusion end of the spectrum helps explain why, despite repeated calls for more balancing, nuisance law focuses on who caused invasions of whose land. Also consistent with an exclusion strategy are the staying power of traditional nonreciprocal notions of causation and the virtual nonexistence in nuisance of Rule 4 liability rules, under which plaintiffs would be permitted to invoke the law to force the polluter either to abate or shut down upon payment of the polluter’s damages. Applying Hohfeldian analysis, the Article shows that the common law gives polluters at most a privilege to pollute and that Rule 4 does not refine the basic exclusion regime but rather undermines it. The general question becomes when to soften exclusion with governance and the Article concludes by arguing that, in situations such as oil and gas fields and Boomer-style pollution cases with numerous victims, only small judicial governance-style safety valves are necessary, especially if legislative and administrative solutions are forthcoming. More generally, the information-cost theory of nuisance brings the utilitarian and corrective justice approaches to nuisance closer together. Nuisance law is not a mess or mystery but does contain within it the inflection point between exclusion and governance.
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Of Power and Responsibility: The Political Morality of Federal Systems
This Article addresses whether a level or unit of government in a federal system must act only on political self-interest or on an understanding of the needs of the system as a whole. To address this question, this Article compares the dominant U.S. “entitlements” approach, which looks only to political self-interest, with the dominant “fidelity” approach in the European Union and in Germany, which demands that institutional actors temper political self-interest by considering the well-being of the system as a whole.
This Article demonstrates that the fidelity approach actually comes in two significantly different versions: (1) a “conservative” fidelity approach, which undermines democratic federalism by seeking to align the diverse interests throughout the federal system, and (2) a “liberal” fidelity approach, which promotes democratic federalism by preserving constructive democratic intergovernmental engagement throughout the system. This Article concludes that the former should be rejected, but that the latter warrants our attention in the United States as a promising and hitherto neglected alternative to the dominant U.S. approach based on institutional “entitlements.”
Beyond Statutory Elements: The Substantive Effects of the Right to a Jury Trial on Constitutionally Significant Facts
The Supreme Court’s decision in Apprendi v. New Jersey established a relatively clear rule: The Sixth Amendment’s right to a jury trial places a substantive restriction on legislatures by preventing any fact that has been deemed necessary for a particular level of punishment, either by statute or by constitutional decision, from being subject to judicial factfinding. Specifically, the Court held that the Sixth Amendment right to a jury trial requires that any fact (other than a prior conviction) that exposes a defendant to a greater level of punishment be found by the jury beyond a reasonable doubt.
This decision was nominally directed at so-called “sentence enhancements”—facts found by the judge at sentencing that increase punishment beyond the maximum allowed by the underlying statute. Some scholars have expressed concern that legislatures, deprived of the use of the increasingly popular sentence enhancements, would redefine their criminal codes so as to avoid the new Apprendi requirement by simply raising the maximum penalty authorized by the underlying statute. The judge could then use this greater discretion in sentencing to inflict the higher level of punishment desired. In light of this fear, there has been a revitalized effort to understand the boundaries that the Constitution places on the substance of criminal law.
This Note argues that the Sixth Amendment right to a jury trial, as explained in Apprendi, places a substantive restriction on legislatures by requiring that any fact deemed necessary for a particular level of punishment, either by statute or constitutional decision, be treated as an element of the crime.