Law Commons^™

Sec Opens The Door For Climate Change-Related Shareholder Proposals And Disclosure Requirements, With Potential New Liabilites For Public Companies, Matthew P. Allen, Eric M. Jamison, Mark J. Bennett

Eric Jamison

The 2009 proxy season saw a record number of shareholder resolutions related to climate change that were directed at a range of industries, including automotive, finance, building, oil, and power generation. Investors are increasingly seeking information from publicly held companies regarding their relative risk position to climate change. Shareholder resolutions seek information about greenhouse gas emissions, energy usage, and go as far as seeking emissions reduction targets. Shareholders are even requesting that financial institutions and banks adopt resolutions limiting or eliminating their lending and investment relationships with companies that present environmental risk. Historically, companies were generally entitled to exclude environmental …

Drawing The Right Lessons From Icsid Jurisprudence On The Doctrine Of Necessity, Amin George Forji

Amin George Forji

Bilateral investment treaties (BITs) and the International Centre for the Settlement of Investment Disputes (ICSID) have over the years injected an important dynamic into public international law, that is, the replacement of a political remedy (peaceful cooperation amongst nations) by a legal one (settlement of investment disputes). The institution of ICSID and the revision of BITs in line with its rules have opened the way for direct investors’ claims and investor-state arbitration. The obvious implication of a compulsory arbitration provision is that it has made up for many shortcomings of the diplomatic protection mechanism with, “the potential for an individual …

The Political Consequences Of Legal Victories: Ballast Regulation And The Clean Water Act, Zdravka Tzankova

Zdravka Tzankova

Federal conservation policy has seen a new development recently: the use of the Clean Water Act (CWA) as a tool for regulating ballast water discharges from ships and, thereby, for preventing biological invasions caused by the discharge of nonindigenous organisms in ballast. Some outcomes of this new method for regulating ballast water discharge are obvious, others are much less so. Superimposing CWA regulatory authority on an already existing system of U.S. ballast law and regulation is likely to change the politics of ballast regulation. What do such changes in regulatory politics spell for the future of regulatory protections against biological …

False Imprisonment As A Tort In India, Hari Priya

Hari Priya

The tort of false imprisonment is one of the most severe forms of human rights violation, and this paper aims to define and to understand the concept of false imprisonment as a tort in India. It also seeks to know about the evolution of the notion of false imprisonment as a tort, with reference to Indian and foreign cases, and understand who and when can one be held liable for the tort of false imprisonment. It further deals with the remedies available for the said tort.

When Does Land "Relate To" A Development Application? North Sydney Council V Ligon 302 Pty Ltd, Michael Weir

Michael Weir

Extract: A development application normally relates to land which is wholly within the control of the developer. Complications arise when an aspect of the proposal, for example access or a buffer area, requires some use of adjoining land which is not within the developer's control. If the developer is obliged to obtain the prior consent of the owner of the adjoining land in all cases, there will be a significant impact upon the development potential of land. The High Court will be considering the issue on 20 June 1996. Their decision may clarify the position in NSW, with implications for …

Miccosukees And The Tamiami Trail Bridge: Examining The Tribe’S Attempts To Sink The Modified Waters Delivery Project, Jeffrey A. Hegewald

jeffrey a hegewald

In the fall of 2008, legal challenges to the Tamiami Trail Bridge project threatened to derail a critical component of the $7.3 billion Everglades restoration program. Indeed, only the Omnibus Spending Act of 2009 saved the project following a ruling from the Federal District Court for the Southern District of Florida. Prior to the events discussed in my note, failure appeared almost certain for years of research, development, and project adaptations performed by the Army Corps of Engineers in conjunction with the DOI/National Park Service.

My note, "Miccosukees and the Tamiami Trail Bridge: Examining the Tribe’s Attempts to Sink the …

What Ever Happened To Canadian Environmental Law?, Stepan Wood, Georgia Tanner, Benjamin J. Richardson

Stepan Wood

This Article examines the history of Canadian environmental law to explain why it has become a laggard in both legal reform and environmental performance. Canadian environmental law has long been of interest to scholars worldwide, yet its record is often poorly understood. The Article contrasts recent developments with the seemingly progressive initiatives of the 1970s, and analyzes these trends in light of their political, economic, and governance context, as well as the wider critiques of environmental law. It argues that there is considerable room for Canadian governments to adopt more robust methods of environmental law, including following pioneering reforms advanced …

Decision On Bt-Brinjal: Issues Of Legal Certainty, Nupur Chowdhury, Nidhi Srivastava

Nupur Chowdhury

The recent decision of the government of India to impose a moratorium on the release of Bt-Brinjal has been hailed by civil society and scientists alike as a victory for transparency and has demonstrated that the government is responsive to societal demands. This decision is also important since it could set a precedent within environmental regulation with reference to technologies with significant environmental risks. However, the decision also reflects a clear departure from procedure and its legal basis is tenuous and therefore the risk of it being reversed remains. This establishes a clear case for ensuring legal certainty in environmental …

Judging Cercla: An Empirical Analysis Of Circuit Court Decision-Making, Clifford Chad Henson

Clifford Chad Henson

Abstract: Political scientists, and increasingly legal scholars, have become skeptical of judges’ attempts to explain decisions based exclusively on applying fact to law, and have attempted to identify factors that influence judicial decision-making. This study isolates a set of cases dealing with the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 and identifies variable sets corresponding to factors one would expect to be significant under competing models of judicial decision-making. While both the legal and extra-legal model independently explain some judicial decision-making, the legal model has more explanatory power and adds significantly to the explanatory power of the extra-legal …

Overlapping Jurisdiction Between Wto Dispute Settlement And Bilateral Mechanisms: Analysis Of Wto Dsb And Chile-Usa Fta, Akawat Laowonsiri, Pawarit Lertdhamtewe

Pawarit Lertdhamtewe

Dispute settlement mechanisms to international trade conflicts are widely varied and can be used selectively since employment of these mechanisms undeniably support on-going process of the world's economy development. This paper is intended to give analysis of overlapping jurisdiction between dispute settlement systems to trade conflicts between countries, herein the case of FTA between Chile-USA and the dispute settlement system under WTO regime. This comparative analysis is expected to give motivation for further research and studies on the same or related fields.

"Los Bienes Jurídicos Colectivos En El Derecho Penal. Consideraciones Sobre El Fundamento Y Validez De La Protección Penal De Los Intereses Macrosociales", Elky A. Villegas Paiva

Elky A. Villegas Paiva

El trabajo aborda la cuestionada intervención del Derecho penal en la protección de los bienes jurídicos colectivos. Se parte de destacar el condicionamiento que ejerce la sociedad del riesgo en la configuración del moderno Derecho penal. Posteriormente se realiza una breve descripción sobre el origen de los bienes macrosociales en el campo penal, para luego analizar los presupuestos de merecimiento y necesidad de pena, condiciones que deben superar aquellos intereses –individuales o colectivos- para que su tutela penal sea legítima. Finalmente se examinan las técnicas de tipificación frecuentemente empleadas para la protección penal de estos intereses colectivos, pues es aquí …

Cleaning Up The Muck: Clarifying The Scope Of Cercla's Potentially Responsible Parties, Matthew K. Telford

Matthew K Telford

Last term, in Burlington Northern & Santa Fe Railway Co. v. United States, the Supreme Court clarified the scope of CERCLA’s arranger liability by holding that an arranger must intend to dispose, in order to be held liable as a Potentially Responsible Party (“PRP”). The case sheds light on the Supreme Court’s plain language construction of CERCLA, and its willingness to graft requirements for liability which some consider inconsistent with a strict liability statute. The Court’s decision focuses attention on other PRP disputes, specifically the extent to which a previous owner, one of the four categories of PRP, can be …

Access To Courts And Preemption Of State Remedies In Collective Action Perspective, Robert L. Glicksman, Richard E. Levy

Robert L. Glicksman

Preemption of common law remedies for individual injuries such as harm to health raises fundamental questions about the proper allocation of authority between the federal and state governments and about the role of courts in interpreting statutes and providing remedies for those who suffer injuries. Developing a workable framework for analyzing what we call “remedial preemption” issues can help to ensure an appropriate accommodation of the federal and state interests at stake and promote consistent application of preemption doctrine to state judicial remedies.

This article applies a “collective action” framework for preemption analysis to the issue of remedial preemption. Our …

Science, Politics, Law And The Arc Of The Clean Water Act: The Role Of Assumptions In The Adoption Of A Pollution Control Landmark, Robert L. Glicksman, Matthew R. Batzel

Robert L. Glicksman

This article examines the assumptions upon which Congress relied in enacting the 1972 Clean Water Act and the extent to which they have been borne out or belied as the federal and state governments have implemented their statutory responsibilities in the quest to achieve acceptably clean water. It traces the development of federal water pollution control legislation before 1972, highlighting the deficiencies that contributed to the need for a new approach in 1972. It then examines the scientific and technical, political, and legal assumptions that helped shape the 1972 Clean Water Act in an effort to determine whether the failure …

Anatomy Of Industry Resistance To Climate Change: A Familiar Litany, Robert L. Glicksman

Robert L. Glicksman

The industries that generate environmental risks in the United States have long been hostile to regulatory programs that increase their costs of operation and reduce their profits. While industry may have been unprepared for, and thus poorly organized to resist, the first wave of federal environmental legislation enacted during the “environmental decade” of the 1970s, it quickly marshaled its forces. Regulated or potentially regulated entities, their trade associations, and their lobbyists began a concerted effort to defeat, delay, and weaken environmental regulation.

This book chapter describes the process by which regulatory opponents successfully relied on free market ideology to couch …

Agency-Specific Precedents, Robert L. Glicksman, Richard E. Levy

Robert L. Glicksman

As a field of legal study and practice, administrative law rests on the premise that legal principles concerning agency structure, administrative process, and judicial review cut across multiple agencies. In practice, however, judicial precedents addressing the application of administrative law doctrines to a given agency tend to rely most heavily on other cases involving the same agency, and use verbal formulations or doctrinal approaches reflected in those cases. Over time, the doctrine often begins to develop its own unique characteristics when applied to that particular agency. These “agency-specific precedents” deviate from the conventional understanding of the relevant principles as a …

Evaluation Of Frontline Demonstration Of Greengram (Vigna Radiata L.) In Sundarbans, West Bengal, Ganesh Chandra

Ganesh Chandra

Green gram (mungbean) is one of the important pulse crop in India, which plays a major role in augmenting the income of small and marginal farmers of Sundarban. The prevalent farming situation in Sundarban areas being characterised by kharif season with paddy cultivation in rain-fed condition and water requirement for growing rabi and summer crops are met only through residual soil moisture and/or stored rain-water. The low production of traditional varieties of greengram was a cause of concern for the farmers at large. To overcome this problem of low yield, Krishi Vigyan Kendra of CIFRI has conducted frontline demonstration field …

Ecological Considerations Relating To The Destruction Of Chemical Weapons, Aldo Zammit Borda

Aldo Zammit Borda

The Chemical Weapons Convention (CWC) not only establishes a global ban on the development of chemical weapons (CW), it also establishes an international obligation on possessor States to destroy their CW and production facilities. This is a central and mandatory obligation of the CWC, which aims at securing a world free of CW. In view of the risks posed by CW to human health and the environment, the obligation to destroy CW may be seen as directly connected to the right to a healthy environment. While the CWC seeks to set high standards for ensuring the safety of people and …

Climate Adaptation Policy At The Continental Level: Natural Resources In North America And Europe, Paul Stanton Kibel

Paul Stanton Kibel

No abstract provided.

Can The Law Facilitate A Finance Shift From Mitigation To Adaptation?, Kirk W. Junker

Kirk W Junker

No abstract provided.

The Lisbon Treaty And Its Consequences For Rural Development And Sustainable Tourism: A Case Study Of Romania, Francesco Sindico

Francesco Sindico

With the entrance into force of the Lisbon Treaty on 1 December 2009, the European Union (EU) has now more tools to deal with a scenario of 27 Member States with specific regional characteristics and different needs in the fields of rural development and sustainable tourism. An important incentive to sign the Lisbon Treaty on 13 December 2007 was the accession to the EU of twelve Central and European countries in recent years. Romania is one of these States. This country has a huge touristic potential and, at the same time, is one of the poorest EU Member State. Against …

The Copenhagen Accord And The Future Of The International Climate Change Regime, Francesco Sindico

Francesco Sindico

This paper analyses the environmental integrity, the nature and the political relevance of the Copenhagen Accord. According to the first two parameters, the Copenhagen Accord is not satisfactory. From a political point of view the conclusion is slightly different, albeit not positive. This paper concludes arguing that after the Copenhagen Conference the future of the international climate change legal regime is likely to be more fragmented, the Accord being one further piece of the global carbon puzzle.

From Nondiscrimination To Civil Marriage, Prof. Elizabeth Burleson

Prof. Elizabeth Burleson

As William Faulkner explained, we must be free not because we claim freedom, but because we practice it. This article analyzes the continuing constitutional struggle for civil rights on the basis of sexual orientation, concentrating on the constitution state's critique of its constitution. Connecticut is currently at the forefront of recognizing civil rights. Connecticut has ruled that discrimination against gay and lesbian persons is subject to intermediate scrutiny, which has historically been used to review laws that employ quasi-suspect classifications such as gender. Civil marriage for same sex couples is legal in Connecticut, Iowa, Maine, Massachusetts, New Hampshire and Vermont. …

Green Building Contracts: Considering The Roles Of Consequential Damages & Limitation Of Liability Provisions, Darren Prum, Stephen Del Percio

Darren A. Prum

The green building market continues to grow, but so do the corresponding legal risks which are only now being explored by scholars and practitioners. Lurking in the shadows behind any green building risk management strategy is how consequential damages - damages which may flow from a party's breach of a design, construction, or consulting contract - should be allocated among project stakeholders. This allocation is particularly critical on green building projects, whose unique and novel nature can create an increased potential for consequential damages. For example, green building tax credits, premium rents, and even energy savings might fall within the …

Wildlife Rights, David Favre

David Favre

Abstract: This article begins by briefly exploring the extent to which wildlife, historically and presently, have a place within our society, culture and legal system. Then, building upon the reality that wildlife, like humans, have personal interests in living their individual lives, suggests five principles for developing laws and programs to better accommodate wildlife interests in the legal system. Individuals, species and geographic groups are presented as focus points for thinking about wildlife interests. Additionally, the three possibilities of who should be the plaintiff for asserting wildlife rights are described: government, private parties and the wildlife themselves. Finally, the article …

China In Context: Energy, Water, And Climate Cooperation, Prof. Elizabeth Burleson

Prof. Elizabeth Burleson

Climate resilient communities can be achieved with the support of global research, development, deployment, and diffusion of environmentally sound low GHG emission technologies and processes. Technology cooperation should lower emissions remaining mindful of biodiversity, ecosystem services and livelihoods. China and the United States need to respond effectively to both economic and climate crises and can do so in part by cooperating on environmentally sound technology that transforms the global use of energy.

Climate Change Displacement To Refuge, Prof. Elizabeth Burleson

Prof. Elizabeth Burleson

This article analyzes the interaction between international human rights law and climate change law. Part II discusses climate induced migration, human rights law and refugee status. Part III considers the role of the United Nations Security Council in climate-induced insecurity. Part IV concludes that maintaining international peace and security requires timely codification of climate measures that address ecomigration. Beyond mitigation, adaptation, technology, and funding, other climate cross cutting issues continue to challenge the international community. The demographics, economies, and geographic features of given countries impact their priorities in the ongoing negotiations. Irrespective of the given impact that climate change will …

Collaborative Community-Based Natural Resource Management, Prof. Elizabeth Burleson

Prof. Elizabeth Burleson

This article analyzes the importance of increasing civil society actor access to and influence in international legal and policy negotiations, drawing from academic scholarship on governance, conservation and environmental sustainability, natural resource management, observations of civil society actors, and the authors’ experiences as participants in international environmental negotiations.

Emerging Law Addressing Climate Change And Water, Prof. Elizabeth Burleson

Prof. Elizabeth Burleson

The World Economic Forum recognizes that while restrictions on energy affect water systems and vice versa, energy and water policy are rarely coordinated. The International Panel on Climate Change predicts that wet places will become wetter and dry places will become dryer. Transboundary water, energy and climate coordination can occur through international consensus building.

Hot Points Special Edition Climate Change, Eric Jamison

Eric Jamison

Hot Points Special Edition Climate Change focuses on legal developments related to the emerging trends in climate law and policy.