Trustee Professor of Law
A pioneer in the field of environmental law, David Schoenbrod was at the forefront of environmental justice, taking on big business. Now, his concern has turned to Congress evading accountability to voters.
Professor Schoenbrod’s most recent book is DC Confidential: Inside the Five Tricks of Washington published by Encounter Books in 2017 with forewords by Governor Howard Dean and Senator Mike Lee. The book shows how politicians from both parties use the tricks to take credit for popular promises, but avoid blame for unpopular consequences and points the way to stopping the trickery.
Professor Schoenbrod is a co-leader for “Breaking the Logjam: An Environmental Law for the 21st Century,” along with Richard Stewart, New York University Professor and former Chairman of the Environmental Defense Fund, and NYU Professor Katrina Wyman. The project is a joint undertaking of NYLS, NYU School of Law, and NYU’s Environmental Law Journal. The project leaders wrote a book, Breaking the Logjam: Environmental Protection That Will Work, published by Yale University Press in 2010.
He frequently contributes to the editorial pages of The Wall Street Journal, The New York Times, and other newspapers and periodicals. Professor Schoenbrod asserts in his scholarship that Congress has inappropriately shifted its responsibility for the laws to regulatory agencies and courts.
As staff attorney for the Natural Resources Defense Council (NRDC) during the 1970s, he led the charge to get lead out of gasoline, dramatically helping to reduce the amount of the brain-damaging contaminant in the air. For insight into this litigation campaign, see the correspondence between EPA Administrator Russell Train and Professor Schoenbrod. After seven years with the NRDC, Professor Schoenbrod felt the need to write about the trends he had been finding in practice.
“Many of the environmental statutes that were supposed to be helping people were charades,” he says. “I found I enjoyed the give and take of the classroom, as well as the opportunity to write about the ideas that began to occur to me in practice.”
His widely-praised 1993 book, Power Without Responsibility: How Congress Abuses the People Through Delegation, published by Yale University Press, was the genesis for legislation in Congress and litigation that went to the Supreme Court. Also widely-praised is a second book from Yale, Democracy by Decree: What Happens When Courts Run Government, written together with his litigation partner at the Natural Resources Defense Council and present colleague at NYLS, Professor Ross Sandler. The Supreme Court cited the book in adopting its most important recommendation. In 2005, Yale released a third book, Saving Our Environment from Washington: How Congress Grabs Power, Shirks Responsibility, and Shortchanges the People.
Professor Schoenbrod was the originating author of Remedies: Public and Private (West), now in its fifth edition. He has also published articles in scholarly journals on environmental law, remedies, and the law and politics of regulation.
He began in law practice as director of program development at the Bedford Stuyvesant Restoration Corporation, which had been established by Robert F. Kennedy.
He then was a staff attorney for the Association of the Bar of the City of New York Committee on Electric Power and the Environment before heading to the NRDC. At the NRDC, Professor Schoenbrod also served as Co-Director of the Council’s Project on Urban Transportation with Professor Sandler. They coauthored A New Direction in Transit, a plan to renovate the city’s subway system that was endorsed by all the city’s major newspaper editorial boards and ultimately adopted by the Metropolitan Transportation Authority.
Professor Schoenbrod’s academic career includes positions at Yale Law School (1977) and NYU School of Law (1979–84), in addition to his current position at NYLS. He is a member of the Board of Advisors for the New Civil Liberties Alliance, a member of the Advisory Council for the C. Boyden Gray Center for the Study of the Administrative State of George Mason University, and a member of the American Law Institute, the Federalist Society, and the Heterodox Academy.
As a member of the American Tree Farm Association, Professor Schoenbrod has managed a woods at his country home in the Adirondacks.
D.C. Confidential: Inside the Five Tricks of Washington (Encounter Books. 2017) with forewords by Governor Howard Dean and Senator Mike Lee
Breaking the Logjam: Environmental Protection That Will Work (Yale University Press, 2010) (with Richard B. Stewart and Katrina M. Wyman).
Saving Our Environment from Washington: How Congress Grabs Power, Shirks Responsibility, and Shortchanges the People (Yale University Press, April 2005).
Democracy by Decree: What Happens When Courts Run Government (YaleUniversity Press, 2003) (with Ross Sandler).
Power Without Responsibility: How Congress Abuses the People Through Delegation (Yale University Press, 1993).
Remedies: Public & Private (West Publishing Co., 1st ed. 1990, 2nd ed. 1996, 3rd ed. 2002, 4th ed. forthcoming) (with Angus Macbeth, David Levine, David Jung).
A New Direction in Transit (New York City Department of Planning, 1978) (with Richard Chudd and Ross Sandler).
Electricity and the Environment: A Report of the Special Committee on Electric Power and the Environment, Association of the Bar of the City of New York (West Publishing Co., 1972) (with multiple authors) .
CHAPTERS IN BOOKS
“Protecting the Environment in the Spirit of the Common Law,” in The Common Law and the Environment: Rethinking the Statutory Basis for Modern Environmental Law, edited by Roger E. Meiners and Andrew P. Morriss, eds.) (Roman & Littlefield, 1999)
“Why States, Not EPA, Should Set Pollution Standards,” in Environmental Federalism (Terry L. Anderson and Peter J. Hill, eds.) (Rowman & Littlefield, 1997)
“Why Regulation of Lead has Failed,” in Low Level Lead Exposure: The Clinical Implications of Current Research (Needleman ed.) (Raven Press, 1980)
LAW REVIEW AND OTHER SCHOLARLY PUBLICATIONS
“Consent of the Governed: A Constitutional Norm That the Court Should Substantially Enforce,” 43 Harvard Journal of Law and Public Policy 213 (2020).
“Necessary & Proper Episode 1: DC confidential with David Schoenbrod“, Federalist Society for Law and Public Studies (June 2017)
“How to Salvage Article I: The Crumbling Foundation of Our Republic,” 40 Harvard Journal of Law and Public Policy 663 (2017)
“Prison Reform: The Monitor’s First Report in the Nunez Case,” 22 CityLaw 73 (July/August 1976) (with Ross Sandler)
“The Mass Murder of America’s Trees Must Stop,” New York Observer (Aug. 10, 2016)
“Statutory Arteriosclerosis,” 28 Environmental Forum 24 (Oct.–Nov. 2011) (with Melissa Witte)
“The EPA’s Faustian Bargain,” 29(3) Regulation 36-42 (2006).
“The Supreme Court, Democracy and Institutional Reform Litigation,” 49 New York Law School Law Review 915-942 (2004–2005) (with R. Sandler).
“What Happened to the Skeptical Environmentalist.” (Special Issue: Reflecting on the Legal Issues of Our Times. New York Law School Faculty Presentation Day), 46 New York Law School Law Review 211-244 (2002–2003) (with C. Wilson).
“Politics and the Principle that Elected Legislators Should Make the Laws.” 26 Harvard Journal of Law and Public Policy 239-280 (2003).
“246 Glorious Cheeses or the Impact of Environmental Regulation on Small and Emerging Business.” 5 Journal of Small & Emerging Business Law 91-111 (2001).
“The Reaffirmation of Proportionality Analysis Under Section 5 of the Fourteenth Amendment (Symposium: State and Federal Religious Liberty Legislation: Is It Necessary? Is It Constitutional? Is It Good Policy?).” 21 Cardozo Law Review 469-492 (1999) (with Marci Hamilton).
“Delegation and Democracy: A Reply to My Critics (Symposium: The Phoenix Rises Again: The Nondelegation Doctrine from Constitutional and Policy Perspectives).” 20 Cardozo Law Review 731-766 (1999).
“Remarks to the Board of Trustees of the Natural Resources Defense Council (Symposium: The Phoenix Rises Again: The Nondelegation Doctrine from Constitutional and Policy Perspectives).” 20 Cardozo Law Review 767-773 (1999).
“Putting the ‘Law’” Back into Environmental Law.” 22(1) Regulation 17- 23 (1999).
“Why States, Not EPA, Should Set Pollution Standards.” 19(4) Regulation 18-25 (1996).
“Overbroad Civil Forfeiture Statutes Are Unconstitutionally Vague (Symposium: What Price Civil Forfeiture? Constitutional Implications and Reform Initiatives).” 39 New York Law School Law Review 285-310 (1994) (with D. Duseau).
“Presidential Lawmaking Powers: Vetoes, Line Item Vetoes, Signing Statements, Executive Orders and Delegations of Rulemaking.” 68 Washington University Law Quarterly 533-560 (1990).
“Environmental Law and Growing Up (Environmental Law Symposium).” 6 Yale Journal on Regulation 357-368 (1989).
“How the Reagan Administration Trivialized Separation of Powers (and Shot Itself in the Foot) (Symposium: Separation of Powers and the Executive Branch: The Reagan Era in Retrospect).” 57 George Washington Law Review 459-473 (1989).
“The Measure of an Injunction: A Principle to Replace Balancing the Equities and Tailoring the Remedy.” 72 Minnesota Law Review 627-695 (1988).
“Separation of Powers and the Powers That Be: The Constitutional Purposes of the Delegation Doctrine (Symposium: Administrative Law ‘The Uneasy Constitutional Status of the Administrative Agencies’).” 36 American University Law Review 355-389 (1987).
“The Delegation Doctrine: Could the Court Give it Substance?” 83 Michigan Law Review 1223-1290 (1985).
“Limits and Dangers of Environmental Mediation: A Review Essay.” 58 New York University Law Review 1453-1476 (1983). Reprinted in 16 Land Use and Environment Law Review 351-374 (1985).
“Goals Statutes or Rules Statutes: The Case of the Clean Air Act.” 30 UCLA Law Review 740-828 (1983). Reprinted in 15 Land Use and Environment Law Review 359-447 (1984).
“Making Decisions About Transit.” 7 (3) New York Affairs 5 (1982).
“Electricity or the Environment: A Study of Public Regulation without Public Control.” 61 California Law Review 961-1010 (1973) (with C.P. Case). Reprinted in Environmental Law Review 99-148 (1974).
Note, “Large Lot Zoning.” 78 Yale Law Journal 1418-1441 (1969).
Note, “Jurisdictional Fetter on the FTC.” 76 Yale Law Journal 1688-1700 (1967).
CONFERENCE MATERIALS, MONOGRAPHS AND REPORTS
“Nondelegation After Gundy—Are We Waiting for Godot?” The Federalist Society National Lawyers Convention, 2019
“Time for the Federal Environmental Aristocracy to Give Up Power (Policy Study Number 144).” Center for the Study of American Business, 1998.
“Subway Scofflaws: A Proposal to Improve Enforcement Against Farebeating and Other Minor Offenses.” Natural Resources Defense Council, 1983 (with R. Sandler).
“The Hudson River Power Plant Settlement: Materials Prepared for a Conference Sponsored by New York University School of Law and the Natural Resources Defense Council.” New York University School of Law, 1981 (ed. with R. Sandler).
“Recommendations Toward a Sound Lead Criteria Document.” Natural Resources Defense Council, 1977 (with T. Henderson & L. Slesin).
“Reducing Crime in the New York City Subway System: Nine Recommendations.” Natural Resources Defense Council, 1977 (with R. Sandler, E.A. Goldstein, S. Jurow & F. Harris).
“Electricity and the Environment: The Reform of Legal Institutions. A Report of the Special Committee on Electric Power and the Environment.” Association of the Bar of the City of New York, 1972 (with others).
NEWSPAPER ARTICLES, PRACTICE MATERIALS, AND OTHER PUBLICATIONS
“Make Democracy Real Again” The Hill (November 14, 2019)
“From Chevron to ‘Consent of the Governed'” Regulation (Winter 2018–2019)
“Let’s Make Congress More Accountable” City Journal (November 21, 2018)
“Cuts in Social Security and Medicare are inevitable. Delaying reform will make it worse.” USA Today (August 15, 2018) (with Brian Riedl)
“Which Came First, the President or the Lie?” Inside Sources (August 2, 2018)
“LegBranch Conversations: An interview with David Schoenbrod” Legbranch.com (June 12, 2018)
“Trump will perpetuate bailouts by signing bank reform bill,” The Hill (March 16, 2018)
“Holding Congress Accountable: A New Deal-era proposal would produce more effective, less burdensome regulation,” The Regulatory Review (February 19, 2018) (with Ross Sandler)
“Wanted: Lawmakers who shoulder responsibility,” The Hill (February 12, 2018)
“An Antidote for Our Poisoned Politics,” The Hill (January 17, 2018)
“How to Put the Representation Back into Taxation,” The Hill (December 19, 2017)
“Like Russia, Congress pits Americans against each other,” The Hill (November 9, 2017)
“Populism is powerful because Washington deserves a kick in the pants,” USA Today (October 23, 2017 (with Howard Dean)
“Washington’s Five Tricks,” Libertarianism.org, (October 20, Episode 210)
“Congress created a regulatory scheme that keeps its hands clean — time for accountability,” The Hill (October 19, 2017)
“Only Congress Can Undo Its Regulatory Mess,” Wall Street Journal (June 19, 2017)
“Trump’s Cynical Infrastructure Plan,” New York Daily News (June 17, 2017)
“The Root of the Healthcare Mess,” Investor’s Business Daily Politics (June 12, 2017)
“Washington’s War Against the People,” The Daily Caller (February 27, 2017)
“American Voters Deserve Credit for Civil-Rights Victories, Too” NATIONAL JOURNAL ONLINE – The Next America (July 2, 2014)
The Overwhelming Case for Clean Air Act Reform (Comment), 43 ENVIRONMENTAL LAW REPORTER NEWS & ANALYSIS 10969-10972 (November, 2013) (with B. Pedersen).
“A Small Step (Cough) for Clean Air“, The Hill (June 4, 2014)
“We Need Truth in Spending” Huffington Post (December 23, 2013)
“Responsibility for War a la Carte,” Huffington Post (September 12, 2013)
“Rescuing the Clean Air Act from Old Age,” The American (March 16, 2011)(with Melissa Witte)
“Budget Policy Talk in the Dark” Politico (March 10, 2011) (with Jagadeeshe Gokhale)
“REINS Would Improve Environmental Protections,” Inside EPA, http://insideepa.com/(April 28, 2011)
“Toxic Regulation,” 16 City Journal 74-81 (2006).
“Appellate Div. Sends Message to Court of Appeals in CFE Case,” 12 CityLaw 49-52 (May–June 2006) (with R. Sandler).
“The Lawsuit that Sank New Orleans,” The Wall Street Journal (Op Ed) September 23, 2005 at A18.
Book Review of Jasmine Farrier’s “Passing the Buck: Congress, the Budget, and Deficits” 120 Political Science Quarterly (Fall 2005).
“CFE Ruling Does Not Bind Legislature, Policy Briefing No. 2, Empire Center for New York State Policy,” Manhattan Institute for Policy Research (Aug 2005).
“DeGrasse’s New Clothes,” New York Post (Op Ed), April 25, 2005, at 28 (with R.Sandler).
“Governance by Lawyers.” National Law Journal at A12 (January 20, 2003) (with R.Sandler).
N.Y. Unbound, New York Post (Op Ed), March 15, 2003 (with R.Sandler).
“New York in Handcuffs,” New York Post (Op Ed), June 15, 2003 (with R.Sandler).
Schools in Handcuffs: How Courts (Mis)rule N.Y.C., New York Post (Op Ed), March 14, 2003 (with R.Sandler).
Some Thoughts on Reparations, 7 The BLSA News Journal 4 (February/March, 2003).
Essay in Eight Blocks Away: Memoirs of September 11, 2001 at 78-79 (New York Law School, 2002).
“Fishing for Cancer.” 114(4) Commentary 44-48 (November 2002).
“The Maumauing of Bjorn Lomborg,” Commentary 51 (September 2002).
“Smoke Signals: The Supreme Court Struck the Proper Balance by Upholding Congress’ Right to Legislate While Reaffirming Its Duty Not to Delegate.” Legal Times (Points of View), March 19, 2001, at 70 (with M. Hamilton).
“Victory in Disguise: Industry Wins One in the Form of Supreme Court Ruling for Non-Delegation Rule.” Fulton County Daily Report, at 9 (March 26, 2001) (with M. Hamilton).
“After the Court’s Ruling – What’s Next for Schools.” 7 CityLaw 1, 2-4 (January/February 2001) (with R. Sandler).
“An Elegant but Incomplete Analysis of Delegation.” Book Review of Delegating Powers: A Transaction Cost Politics Approach to Policy Making Under Separate Powers, by Epstein and O’Halloran. 22(4) Regulation 64-67 (1999).
“By What Right Do Judges Run Prisons?” Wall Street Journal (Rule of Law), at A19 (August 31, 1998) (with R. Sandler).
“Clean Air, Congress and the Constitution: Why Delegation Ruling Was Correct.” On Point, No. 38, May 26, 1999 (Competitive Enterprise Institute).
“Environmental Controls Should Be Turned Over to the States.” USA Today Magazine, May 1999, at 74.
“Innovative Agreement Ends Marisol Litigation.” 5 CityLaw 1, 3-5 (January/February 1999) (with R. Sandler).
“The Yellow Brick Beltway.” Wall Street Journal, at A10 (November 27, 1998).
“Brief Amicus Curiae for Appellees, Clinton v. City of New York.” U.S., 1998 (No. 97-1374) (with M.A. Hamilton).
“Congress Passes the Buck–Your Tax Buck.” Wall Street Journal (Editorial), at A10 (June 12, 1998) (with M.A. Hamilton).
“The Common Law Approach to Pollution Prevent.” A Roundtable Discussion, Center for Private Conservation, March, 1998.
“Time for the Federal Environmental Aristocracy to Give Up Power.” Center for the Study of American Business (Washington University, Policy Study No. 144, February, 1998)
“In New York City, The Jails Still Belong to the Judges.” Wall Street Journal (Rule of Law), at A23 (September 10, 1997) (with R. Sandler).
“Brief Amicus Curiae for Appellees, Raines v. Byrd.” U.S., 1997 (No. 96-1671) (with M.A. Hamilton).
“The Constitution and the Line-Item Veto.” Wall Street Journal (Rule of Law), May 21, 1997, at A15 (with M.A. Hamilton).
“The State Regulators Have Had Enough of the EPA.” Wall Street Journal, at A22 (May 8, 1997).
“The Delegation of Legislative Powers.” Cato Handbook for Congress: 105th Congress (1997)
“How To Put Lawmakers, Not Courts, Back in Charge.” 6 City Journal 61-67 (Autumn 1996) (with R. Sandler).
“Putting the Classroom into Practice and Practice into the Classroom.” 14 In Brief 12 (Spring 1996).
“Soundings: ‘Prison Break.’” 6 City Journal 13 (Summer 1996) (with R. Sandler).
“It’s Time Congress Took Back Its Power to Make Laws.” Wall Street Journal (Rule of Law), at A21 (December 6, 1995).
“Slaving Away, Pro Bono: Why Should Law Students Do the Bar’s Labor?” Legal Times (Opinion and Commentary), August 21, 1995, at 24 (with A. Seward); also printed as “Don’t Turn Law Students Into Pro Bono Slaves,” New Jersey Law Journal (Op-ed), August 28, 1995, at 25; “Making Work For Someone Else,” The Recorder (Commentary), September 1, 1995, at 6; “Public Service: Forced Pro Bono Misses the Mark,” Texas Lawyer, August 28, 1995, at 28; “Pushing Law Students to do Pro Bono,” Connecticut Law Tribune (Perspectives), August 28, 1995, at 30.
“On Environmental Law, Congress Keeps Passing the Buck.” Wall Street Journal (Rule of Law), at A13 (March 29, 1995).
“Environmental ‘Injustice’ is About Politics, Not Racism.” Wall Street Journal (Rule of Law), at A21 (February 23, 1994).
“Clinton and the Politics of Pork.” Legal Times (Opinion and Commentary), at 24 (January 24, 1994).
“Government by Decree.” 4 City Journal 54-62 (Summer 1994) (with R. Sandler).
“Subway Scofflaws: A Proposal to Improve Enforcement.” 8(3) New York Affairs 61 (1984) (with S. Reiss & R. Sandler).
“Take Subway Scofflaws Out of the Criminal Courts.” Empire State Report, at 45 (March 1984) (with S. Reiss & R. Sandler).
“Congress Must Spell out Where the Burden of Clean Air Falls.” Wall Street Journal (Editorial), at 22 (July 5, 1983).
The Hudson River Power Plant Settlement, (New York University School of Law and the Natural Resources Defense Council, Inc. 1981) (edited with Ross Sandler)
“Subways: Cash & Carey.” New York Times (Op Ed), at 15 (July 30, 1979) (with R. Sandler).
“Tunnel Vision Too.” New York Times (Op Ed), at 18 (April 14, 1978) (with R. Sandler).
“New York as a Cough-In.” New York Times (Op Ed), at 33 (August 28, 1975) (with R. Sandler).
“Statement of David Schoenbrod, Joined by F.A.O. Schwartz, Jr. and Jean Silver, with Concurrence of Fritz Alexander, II.” Decentralizing City Government, Walter Farr et al., (Praeger l972)
Comment, “U.S. Steel Imports.” 56 American Economic Review 156 (1966).
Hearings on Federal Consent Decree Fairness Act & Sunshine for Regulatory Decrees and Settlements Act: Hearings before the Subcommittee on Courts, Commercial and Administrative Law of the House Committee on the Judiciary, 112th Cong., 2st Sess. (Feb. 3, 2012).
Federal Regulation: A Review of Outstanding Proposals, Hearings before the Senate Committee on Homeland Security and Governmental Affairs, 112th Cong., 1st Sess. (June 23, 2011).
Regulations from the Executive in Need of Scrutiny Act (REINS): Hearings before the
Subcommittee on Courts, Commercial and Administrative Law of the House Committee on the Judiciary, 112th Cong., 1st Sess. (March 8, 2011).
The Federal Consent Decree Fairness Act: Hearing before the Subcommittee on Courts, the Internet, and Intellectual Property of the House Committee on the Judiciary, 109th Cong., 1st Sess. (June 21, 2005)
Does Congress Delegate Too Much Power to Agencies and What Should be Done About It: Hearing before the Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs of the House Committee on Government Reform, 106th Cong., 2nd Sess. (June 14, 2000)
Role of Congress in Monitoring Administrative Rulemaking: Hearing before the Subcommittee on Commercial and Administrative Law of the House Committee on the Judiciary, 104th Cong., 2nd Sess. (September 12, 1996)
Clean Air Act Amendments of 1977, Part 2: Hearings before the Subcommittee on Health and the Environment of the House Committee on Interstate and Foreign Commerce, 95th Cong., 1st Sess. (March 11, 1977)
Urban Mass Transportation: Hearing before the Subcommittee on Transportation Appropriations of the House Committee on Appropriations, 95th Cong., 1st Sess. (January, 28, 1977)
Future of the Highway Program, Part 2: Hearings before the Subcommittee on Transportation of the Senate Committee on Public Works, 94th Cong., 1st Sess. (July 29, 1975)
Automotive Lead Emissions, Part 1: Hearings before the Subcommittee on Environmental Pollution Panel on Environmental Science and Technology of the Senate Committee on Public Works, 93rd Cong., 2nd Sess. (May 8, 1974)
Professor David Schoenbrod talks about some of the inadequacies of The Clean Air Act along with potential solutions to the problem.