Jim Rossi | Vanderbilt University (original) (raw)

Papers by Jim Rossi

Texas Law Review, 2016

For much of the past 80 years courts have fixated on dual sovereignty as the organizing federalis... more For much of the past 80 years courts have fixated on dual sovereignty as the organizing federalism paradigm under New Deal era energy statutes. Dual sovereignty’s reign emphasized a jurisdictional “bright line,” with a fixed, legalistic boundary between federal and state regulators. This Article explores how recent Supreme Court decisions limit dual sovereignty’s role as the organizing federalism principle under energy statutes. These recent decisions do not approach federal-state jurisdiction as either/or proposition, but instead recognize it is concurrent in certain contexts. Concurrent jurisdiction opens up a brave new path of possibilities for energy federalism but also has been target of criticism, including in Justice Scalia’s last published dissent. This Article defends concurrent jurisdiction as consistent with the history, structure and language of energy statutes, as well as their primary purposes of closing regulatory gaps. At the same time, energy federalism’s path conti...

Abstract: Recent policy-effect studies denounce judicial review for its adverse effects on agency... more Abstract: Recent policy-effect studies denounce judicial review for its adverse effects on agency decisionmaking. In its strong version, the policy-effect thesis suggests that judicial review has paralized innovative agency decisionmaking. Professor Rossi reacts to policy-effect studies, particularly as they have been used to attack the hard look doctrine in administrative law. He revisits Professor Richard Pierce's policy-effect description of the effects of judicial review of the Federal Energy Regulatory Commission (FERC). Professor ...

In this Commentary Article, Professor Rossi highlights some of the distributional and operational... more In this Commentary Article, Professor Rossi highlights some of the distributional and operational problems presented by a national renewable portfolio standard ("RPS") in electric power. He also offers several solutions to these problems as a way of advancing a cautionary defense of a national RPS. Ultimately, Professor Rossi concludes that addressing climate change will need to involve more systemic and larger scale modifications to regulation of the electric power industry.

Duke Law Journal, 2001

In recent years, a new account of administrative law, favoring private ordering over state-impose... more In recent years, a new account of administrative law, favoring private ordering over state-imposed solutions, has bolstered the acceptability of negotiated approaches to regulatory problems. 1 Consistent with this account, administrative law has seen a growing trend toward flexible, consensual mechanisms for regulation, 2 emphasizing less rigid, cooperative approaches over prolonged adversarial disputes. Procedural innovations, such as negotiated regulation (known less formally as "reg neg"), have proliferated as alternatives to more traditional administrative procedures, such as notice and comment rulemaking. Reformers' embrace of such solutions for their promise

for comments on an earlier draft. Thanks also to Jamie Braun for research assistance in assemblin... more for comments on an earlier draft. Thanks also to Jamie Braun for research assistance in assembling the table of state-level administrative procedure acts which appears in the Appendix.

This Article argues that a national renewable portfolio standard (RPS) for electric power is not ... more This Article argues that a national renewable portfolio standard (RPS) for electric power is not likely to advance its purported goals, nor is it likely to be adopted by Congress in its present proposed form. For one, a national RPS would have geographically disproportionate costs-those costs would be focused on a few, mostly natural resource-poor states, whereas the benefits of job growth and technological adoption in infant industries will be elsewhere. Second, the ability of firms to use operational flexibility regarding their nonrenewable fuel mix to substitute other nonrenewable energy sources for traditional fossil fuels undermines the purported climate change benefits of such a requirement, and usually raises costs and increases inefficiency of energy generation as well. Furthermore, a national RPS fails to address preexisting system-level infrastructure siting and cost allocation barriers in the electric power industry. Without broader reforms to the energy industry, significant new investment in renewable power is unlikely.

Florida State University Law Review, 2005

ABSTRACT Inspired by the burgeoning empirical literature on the judiciary, the editors of the Flo... more ABSTRACT Inspired by the burgeoning empirical literature on the judiciary, the editors of the Florida State University Law Review have solicited some papers from leading scholars and federal courts of appeals judges, asking them to address the topic of empirical measures of judicial performance. The papers in this "Symposium on Empirical Measures of Judicial Performance" address empirical measures of judicial performance from a variety of methodological perspectives, but as this Foreword suggests, they can roughly be organized around three basic themes. First, many of the papers critique the empirical enterprise itself and especially the tournament strategy for evaluating judges, although these papers also raise important issues for future empirical study of judges. Second, many of the papers in the Symposium propose new ways of operationalizing the empirical study of judicial performance or present fresh new empirical evidence about judges and courts. Third, some of the papers focus on the behavioral and institutional implications or empirical studies of judges and courts. As the papers in the Symposium would indicate, the empirical tournament has inspired some important advances in the discourse about measurement of performance in the context of the judiciary and its relevance to the selection of judges and the judicial process. While efforts to measure judicial performance empirically simultaneously revive many old controversies and presents new issues, its debates will be certain to continue as long as we have data, judges, and courts.

Abstract: Not so very long ago, the story of American constitutional law was easy to understand a... more Abstract: Not so very long ago, the story of American constitutional law was easy to understand and even easier to relate. Constitutional law was a story written by two actors: the framers of the US Constitution and the US Supreme Court. The US Constitution provided the content of constitutional law and a Supreme Court told us what it meant. Today, this master narrative has begun to unravel in favor of new one that treats constitutional law as both the object and the venue of a plural and often remarkably inclusive ongoing ...

Law Phil, 1993

Bolstered by the writings of Rouald Dworkin, moral philosophy recently has enjoyed something of a... more Bolstered by the writings of Rouald Dworkin, moral philosophy recently has enjoyed something of a renaissance in jurisprudence. Of course, moral philosophy has always been of vital concern to natural law theorists, who view law and morality as conceptually related. Moral philosophy has also been a vital reform weapon for several writers in feminist jurisprudence I and critical legal studies? Even legal positivists-who view law and morality as conceptually distinct-are aware of developments in moral philosophy and depend on these developments to defend their separability thesis. 3 Serious legal theorists cannot ignore the development of ideas in moral philosophy. The collection Liability and Responsibility 4 brings together a dozen essays on moral philosophy by influential philosophers and legal

Ssrn Electronic Journal, Nov 1, 1998

Abstract: This is a critical review essay, exploring the thesis advanced by Gregory Sidak and Dan... more Abstract: This is a critical review essay, exploring the thesis advanced by Gregory Sidak and Daniel Spulber in their book Deregulatory Takings and the Regulatory Contract (Cambridge University Press 1997). Sidak and Spulber argue that deregulation of the electric utility and local telephony industries can constitute an unconstitutional taking to the extent the state does not provide compensation for the investment-backed expectations of firms in the industry. In addition, they argue that economic efficiency requires this result. This review ...

The Scope of Regulatory Bargaining Contracts and other bargains are fundamental to competitive ma... more The Scope of Regulatory Bargaining Contracts and other bargains are fundamental to competitive markets. Deregulated electric power and telecommunications markets look to contract to define the relationships between private firms, as well as between private firms and customers. As Joseph Kearney and Thomas Merrill (1998) note in the leading legal treatment of the topic of deregulation: "The new paradigm seeks to subject to ordinary contractual relations all common carrier and public utility services that can be provided through multiple competing providers" (1363). With deregulation, contract will become the primary mechanism for ordering market transactions between private firms and their customers, largely displacing traditional regulatory doctrines that required firms to provide service to customers on predetermined terms and conditions. Contract is also fundamental to theories of regulation and regulatory law. 1 As economists studying regulated industries with natural monopoly characteristics have long recognized, regulation bears structural similarity to a long-term bilateral contract (Goldberg, 1976; Joskow & Schmalensee, 1983). The actions of the regulator can be analogized to contracts and other bargains. More than for run-ofthe-mill industries, the contractual understanding of regulation is fundamental to capital-intensive industries, such as electric power and 1 Legal scholars are perhaps guilty of using the term "contract" in the regulatory context with less precision and caution than it deserves. The scholarly literature uses the notions of contract in regulation as a rough analogy to describe the nature of various relationships but not necessarily as a legal term of art. Like most legal scholars, I do not intend to imply that regulatory contracts necessarily entail legal duties, obligations, and remedies-an issue I return to in Chapter 5.

Abstract: Public choice themes have arisen throughout the history of US energy regulation and con... more Abstract: Public choice themes have arisen throughout the history of US energy regulation and continue to be relevant today, particularly with widespread discussion of deregulation and increased attention to climate change. This Article surveys how public choice themes are relevant to understanding a host of issues of importance to the electric power industry today, including the structure of the industry, the significance of wholesale markets, and the division of regulatory power between state and federal authorities. The Article highlights ...

A distinction is sometimes made between lines being built to reliability purposes and those being... more A distinction is sometimes made between lines being built to reliability purposes and those being built for economic purposes. Since the determination of what constitutes "reliability" is, at root, an economic concept (namely, the value of lost load), this paper makes no distinction between the two. Some siting agencies, however, may well see the siting of lines to facilitate the marketing of a state's energy resources as a lesser order of need, since its objective is, almost by definition, driven by economic goals rather than

Marquette Law Review, 2007

Thanks to Christie Bredahl and Brad deBeaubien for their research assistance and help in preparin... more Thanks to Christie Bredahl and Brad deBeaubien for their research assistance and help in preparing this draft. 1. "No State shall, without the Consent of Congress ... enter into any Agreement or Compact with another State ... " U.S. CONST. art. I, § 10, cl. 3. 2. "No State shall enter into any Treaty, Alliance, or Confederation; ... pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts .... ." U.S. CONST. art. I, § 10, cl. 1. State constitutions, such as Wisconsin's, frequently contain a similar provision. See, e.g., WIS. CONST. art. I, § 12 ("No bill of attainder, ex post facto law, nor any law impairing the obligation of contracts, shall ever be passed ....).

Vanderbilt Law Review, Nov 1, 2003

Abstract: The filed tariff doctrine, fashioned by courts to protect consumers from rate discrimin... more Abstract: The filed tariff doctrine, fashioned by courts to protect consumers from rate discrimination, has strayed from its origins. Instead of protecting consumers, the doctrine has evolved into a shield for regulated firms against common law and antitrust claims that reinforce market norms. In the ideal world, Congress would expand the jurisdiction of regulatory agencies to allow them to penalize private misconduct. However, since that has not always happened, the filed tariff doctrine has encouraged private firms to expend ...

Journal of the National Association of Administrative Law Judiciary, 2013