Edwin Donald Elliott

• Bachelor of Arts and Juris Doctor
• Yale University

Severability clauses can help administrative agencies minimize the damage caused by judicial review and can make the regulatory environment more efficient, participatory, and predictable. Yet agencies rarely include these clauses in their rules because courts tend to treat administrative rules with severability clauses the same as those without. Co...

This paper identifies an approach to scholarship called 'Domestic Comparative Law.' This method involves learning the lessons of experience by applying the method of legal precedents to policy questions, as well as to legal issues in court. Its application is illustrated by applying it to a current policy controversy: whether to quantify and includ...

E. Donald Elliott, Professor (adjunct) of Law, Yale Law School, admits that there is no rareness of important environmental ideas since the mid-1990s. What has been lacking is the politics to enact new environmental initiatives at the national level in the United States. He talks about 'Rejeski Gap,' the absence of significant new environmental ini...

There is a large gap between the percentage of electricity generated from renewable sources in the U.S. and EU. This paper argues the reasons are not just a failure of policy in the U.S. but also matters of deep political structure and culture. Federalism, separation of powers, changing policies with frequent changes of governing political parties,...

Summary of the Law of Oil Spills. Presented at the ALI-ABA Advanced Environmental Law Conference, Washington, DC February, 2011

Rule 4(b) of the Federal Rules of Civil Procedure delegates to private parties state authority to compel a person to appear and answer civil charges in court without any preliminary state review or screening for reasonableness. This is argued to be unconstitutional as a unreasonable seizure of the person, a deprivation of private property without d...

Lessons learned from implementing the Clean Air Act Amendments of 1990 by the General Counsel of EPA during passage and first year of implementation. Elliott argues that first main lessons to be learned from EPA's successful implementation of the 1990 Amendments were: 1. Establish and communicate clear priorities; 2. Develop a specific plan, with c...

Lessons learned from U.S. environmental law. Five best and five worst things in U.S. environmental law. "Third-mover advantage" by which legal systems may be do better by adopting legal devices after studying experience elsewhere. "Virtual regulation" by which incentives from regulatory system are intended to affect behavior outside.

Argues that benefit cost analysis is too imprecise to fine tune environmental regulations, but is useful for establishing priorities and convincing skeptics (particularly Republicans).

Compares public risk assessment and private risk assessments conducted companies before placing new products on the market. Concludes companies are driven by a value of information approach and wish to avoid competitive disadvantage, not necessarily to minimize liability. Compares inventives for private and governmental risk assessments. Considers...

How the Chevron decision changed the dynamics of decision making inside agencies.

Describes strategies for updating environmental law and policy in a logjam era in which legislation is not readily available due to a blood feud between the political parties and other factors. Recommends expert consensus proposal systems as well as greater flexibility under the Chevron doctrine.

Our article analyzes whether the federal government may constitutionally supplant a traditional system of common-law trials before state judges and juries with new federal institutions designed by statute for compensating victims of medical injuries. Specifically, this article examines the federal constitutional issues raised by various proposals t...

Elliott considers the problem of institutional reforms to enhance the role of science in EPA decisionmaking. He asserts that science is underrepresented in policymaking at the EPA and that the quality of decisions at the margins would be improved by giving science somewhat greater influence.

nvironmental regulation in the United States has been characterized by short-term decisions with unknown or unanticipated long-term public health consequences. Some propose to use our inability to predict possible long-term consequences of environmental health regulation as a justification for replacing risk assessment with the "pre- cautionary pri...

The title of this symposium asks: "Does scientific knowledgechange the law?" On one level, the answer is obvious: ofcourse, science and technology are always changing the law?As a matter of positive description, law is an integral part of aculture, and as cultural knowledge and beliefs about humannature change, law inevitably changes with them. But...

For the last two thousand years, we have made remarkably little progressin moral philosophy, or its stepchild, jurisprudence, by attacking the field as amatter of a priori philosophy. Recently, a different approach has begun to beused, which is to treat morality as an empirical matter subject to scientificstudy. I am thinking of the work of Carol G...

No feature of modem U.S. government has been more controversial over thelast decade than review of agency rules by the Office of Information andRegulatory Affairs of the Office of Management and Budget ("OMB") and otherparts of the Executive Office of the President. And yet, despite all thecontroversy, no president, not Bill Clinton and probably no...

A window has recently opened into the new world, in which implementingenvironmental norms in practice is more important than establishingthem in theory. It is a remarkable document: Total QualityManagement: A Framework for Pollution Prevention, by the QualityEnvironmental Management Subcommittee of the President's Commissionon Environmental Quality...

Bob Anthony and Tom McGarity both maki a number of important,perceptive points, and I find myself in substantial agreement witheach of them. I have only two principal disagreements with Bob Anthony. First, Ibelieve that a court should not go behind the objective terms of a statementof agency policy to speculate about whether the statement was "real...

What concerns me tonight has to do primarily with theinstitutions of environmental law, with the legal techniques andmechanisms that we use to make and implement our environmentalpolicies.

History is the tool for which we reach to try to understand andthereby control an unknown future. It is a natural human tendency,built into the biology of our species, to try to understand the new byanalogy with the familiar. Kahneman and Tversky call this tendency the"anchor and adjust" heuristic. When confronted by something new, thehuman mind as...

Ideas matter. In the law, legal ideas not only store the wisdomof the past, and help to constrain and legitimate today's decisions;they also help to shape the future course of legal evolution.lIdeas are not, of course, the only factor that shapes the future ofthe law. Law is an open system that responds to both its owninternal logic and to its exte...

I want to suggest that we are once again on the verge of such aconstitutional moment, a time when legal tradition and the popular willcollide; the popular will prevails, and, as a result, the fundamental lawchanges. In this instance, the drama is being played out in an unfamiliarlocation: not in the Supreme Court, but in state legislatures. Beginni...

Let us begin by renouncing two of the more ambitious implications of thetitle. No, we do not believe that any single theory can do justice to all varietiesof statutory development. Nor do we believe that everything worth sayingabout the processes by which statutes change can be captured by analogy tobiological evolution.Just as each human being has...

Martin Shapiro's proposal to break "administrative discretion" downinto smaller units is a step in the right direction, but it does not go farenough.1 In this Comment, I propose an alternative view which I call the"dis-integration" of administrative law. I do not mean that administrativelaw no longer exists, but rather that it is gradually becoming...

Theories of Environmental Law from Evolutionary Biology and Economics are compared. Why human societies sometimes cope with environmental problems via law or informal norms and sometimes do not. Law as compensating for insufficient altruism.

I offer three modest proposals for what we might do toimprove environmental law in the United States in the next generation. 1They are: (1) increased use of environmental markets ("cap and trade" orbubble programs) and other incentive-based regulatory instruments; (2)retroactive application of the Chevron decision, which would help to clearout some...

Fundamental "modes of thought" (Denkarten) or "styles of thinking"can be at least as important as ideas or ideologies in shaping thelaw. This theory has been pointed out by the distinguished German legalscholar Wolfgang Fikentscher. Today, American environmental law isgroping toward a new "style of thinking," as many of the articles in thissymposiu...

How to compensate individuals for exposure to toxic substances has beenhotly debated in legal circles recently. Most of the debate has been based on anassumption that is usually taken for granted: that reform must be accomplishedby tinkering with the legal doctrines courts apply in toxic tort cases.The immediate purpose of this article is to questi...

Separation of powers jurisprudence in the United States is in anabysmal state. That conclusion emerges clearly from virtually everyarticle in this symposium.

The problem to be discussed is hardly the most important facing the lawtoday. Expert testimony about technical and scientific issues is presented ina relatively small percentage of cases. It plays a central role in an evensmaller proportion: for example, in toxic torts, medical malpractice, andoccasionally in criminal cases in which new forensic te...

This article reports on an empirical study of some broad trends infederal administrative law that was recently concluded. Althoughthe complete study is published elsewhere, we also report our findingshere for two reasons. First, we hope to broaden the audience for thisresearch, especially among practicing administrative lawyers. We believethat the...

CHAIRMAN BREGER: Let me welcome you to this AdministrativeConference colloquy on providing economic incentives in environmentallitigation.

Tonight I am going to make a few remarks about the general issue of the distributional consequences of environmental protection programs. Then I want to save some time at the end to respond to your questions, either on that topic or more generally, about what we at EPA are doing to protect the environment.

Environmental policymaking must confront two different kinds of uncertainty.I want to call attention to the role of a particular type of uncertainty,which I shall call "regulatory uncertainty" in the policy process.