judicial remedies

Property, Fairness and the Public Interest (Another Glimpse of the Cathedral)

Why do we recognize some things as “property” and what does it mean to do so?  A hugely influential law review article, published over forty years ago, made a valiant attempt to clarify the nature of property law. Looking back on the article and at developments since then, however, only makes it clearer that “property …


Saving Public Nuisance

I agree with Rick’s take on the oral argument in Connecticut v. AEP — in fact, so much so that I predicted it three years ago!  But if the Supreme Court overturns the Second Circuit on the viability of a federal common law claim, that actually makes the viability of state common law claims stronger. …


Connecticut v. AEP: The Judicial Power of the Purse

That’s not my phrase: it’s Jerry Frug’s.  But it applies here. Rhead reports that in the Connecticut v. AEP argument, Justice Breyer, setting up one of his classic hypotheticals, wanted to know why a judge should not impose a $20-a-ton carbon tax as a judicial remedy.  (Answer: because he can’t.) It’s not clear to me …