Law Commons^™

Are Public Facilities Different From Private Ones?: Adopting A New Standard Of Review For The Dormant Commerce Clause, Bradford Mank

Faculty Articles and Other Publications

On September 26, 2006, the Supreme Court granted certiorari in United Haulers Association Inc. v. Oneida-Herkimer Solid Waste Management Authority to decide the important issue of whether local governments may require that all waste in their jurisdiction be sent to a publicly-owned waste facility and thereby discriminate equally against both local and out-of-state private firms. The dormant Commerce Clause doctrine (DCCD) grants federal courts authority to invalidate state/local laws that discriminate against foreign goods/firms. The Court has adopted an overly broad per se test that invalidates any local law that theoretically discriminates against foreign firms, even if there is no …

Application Of The Public Trust Doctrine To Modern Fishery Management Regimes, Kevin J. Lynch

Sturm College of Law: Faculty Scholarship

As the state of the nation’s fisheries has declined in recent decades, fishery managers have increasingly sought more effective means for managing fishing efforts to prevent overfishing. The situation is particularly dire in marine fisheries, where studies have shown that populations of large predatory fish species such as tuna, marlin, and swordfish have declined by up to 90%. Conventional explanations for this and other declines in fish populations invoke the concepts of the “tragedy of the commons” and the “race to the fish.” The tools favored by economists to solve these problems typically involve creating some form of limited private …

Are Shared Benefits Of International Waters An Equitable Apportionment? (With P. Wouters), A. Dan Tarlock

All Faculty Scholarship

No abstract provided.

The Great Lakes As An Environmental Heritage Of Humankind: An International Law Perspective, A. Dan Tarlock

All Faculty Scholarship

No abstract provided.

Alchemy In The Courtroom? The Transmutation Of Public Nuisance Litigation, Richard O. Faulk, John S. Gray

Richard Faulk

This Article continues our study of the public nuisance controversy regarding lead paint. Although lead paint cases are certainly not the only claims where public nuisance principles are being advocated, they are the most conspicuous claims, and they have attracted the most attention from advocates, courts, and commentators. For that reason, we have focused on the lead paint paradigm. Moreover, as will be seen, the allegations asserted in these claims are not unique to lead paint but can be applied generically by ingenious counsel to virtually any product or conduct imaginable. Hence, examining the lead paint controversy provides insight into …

The Seas They Are A Changin': Natural Law & Local Custom As Marine Enforcement Strategies For Pacific Island Nations, Caleb W. Christopher

Caleb W Christopher

Composing the world’s largest uninterrupted continual marine habitat, the biodiversity within the control of Pacific island nations is an unquestioned scientific treasure. The species and natural resources have long served as a central focus for the diverse collection of traditional island cultures, which have continued traditional fishing practices for centuries. Imposed across this rich relationship are both international law (allegedly dictating the terms of who catches what), and the short end of the global economy, in which geography and global governance conspire to leave islanders with stagnant economic growth and dwindling natural resources. While international law has, in theory, provided …

Superfund "Arranger" Liability: Why Ownership Of The Hazardous Substance Matters, Aaron Gershonowitz

Aaron Gershonowitz

Abstract Superfund “Arranger” Liability: Why Ownership of the Hazardous Substances Matters Aaron Gershonowitz The Superfund Law lists four categories of parties who may be held liable for remediation costs at inactive hazardous waste sites: (1) the current owner or operator; (2) the owner or operator at the time of the disposal of hazardous substances; (3) a person who arranged for disposal of hazardous substances “owned or possessed by such person”; and (4) a person who transported waste to the facility. This article will examine the third category, the arranger, and analyze the role played by the qualifier, “owned or possessed …

Another Day Older And Deeper In Debt: How Tax Incentives Encourage Burning Coal And The Consequences For Global Warming, Roberta F. Mann

Roberta F Mann

Coal generates more than half of the electricity in the United States. Civilization has had a love-hate relationship with coal for centuries. Coal usage is both a blessing and a curse. Per unit of energy, coal appears to be the cheapest fuel. But while the nominal price we pay for coal-based energy reflects some of the cost of extracting, processing, transporting, and converting it to energy, it does not reflect the social and environmental costs of coal. Moreover, because coal is subject to tax subsidies, the price does not reflect the entire direct cost of coal. As long as coal …

China's Future Lawyers: Some Differences In Education And Outlook, Patricia Ross Mccubbin, Malinda L. Seymore, Andrea Anne Curcio, Llewellyn Joseph Gibbons

Patricia Ross McCubbin

In this short essay, four U.S. professors who recently served as Fulbright Lecturers in Law in China share important observations about China's future lawyers. The authors discuss key differences in the legal education systems of the two countries, noting that the most significant difference is the lack of Chinese training in the critical legal analysis so familiar to U.S.-trained lawyers. The authors also discuss Chinese law students' limited knowledge of the U.S. legal system and U.S. culture generally. This essay seeks to help members of the U.S. legal community understand the different skill sets and information that Chinese lawyers may …

Enacting Libertarian Property: Oregon's Measure 37 And Its Implications, Michael Blumm

Michael Blumm

In November 2004, for the second time in four years, Oregon voters opted for a radical initiative that is transforming development rights in the state. The full implications of this substantial change in property rights have yet to be fully realized, but it’s clear that the post-2004 land use world in Oregon will be dramatically different than the previous thirty years.

Land development rights in the state were significantly curtailed by a landmark law the Oregon legislature, encouraged by pioneering Governor Tom McCall, enacted in 1973. Implementation of that law survived three separate initiatives that sought to rescind it in …

Countryside Access And Environmental Protection: An American View Of Britain's Right To Roam, Jerry L. Anderson

Jerry L. Anderson

In 2000, Britain enacted a broad "right to roam," which opened up millions of acres of private land to public access. Britain’s resurrection of the right to roam should cause other countries, such as the United States, to reconsider the values that support greater public access to the countryside. Given differences in our history, land ownership, and culture, not to mention our legal system, the United States is unlikely to emulate the CRWA. But the idea that the freedom to roam has trumped the right to exclude in Britain may encourage Americans to accommodate the public’s need for access in …

Insect Conservation Under The Endangered Species Act, Ezequiel Lugo

Ezequiel Lugo

While the rate of extinction is the same for insects and other animals, insects are underrepresented in the Fish and Wildlife Service's list of threatened or endangered species. Insect conservationists have argued that the Endangered Species Act and the Fish and Wildlife Service are biased against insects, despite the importance of insects in our lives. The reality, however, is that there is only minimal bias inherent in the provisions of the Endangered Species Act or in regulations promulgated by the Fish and Wildlife Service. The main cause of the low number of insect species listed under the Endangered Species Act …

Federalism And The Tug Of War Within: Seeking Checks And Balance In The Interjurisdictional Gray Area, Erin Ryan

Erin Ryan

Federalism and the Tug of War Within explores tensions that arise among the underlying values of federalism when state or federal actors regulate within the “interjurisdictional gray area” that implicates both local and national concerns. Drawing examples from the failed response to Hurricane Katrina and other interjurisdictional problems to illustrate this conflict, the Article demonstrates how the trajectory set by the New Federalism’s “strict-separationist” model of dual sovereignty inhibits effective governance in these contexts. In addition to the anti-tyranny, pro-accountability, and localism-protective values of federalism, the Article identifies a problem-solving value inherent in the capacity requirement of American federalism’s subsidiarity …

Environmental Law In A Climate Change Age, David R. Hodas

David R. Hodas

No abstract provided.

Imagining The Unimaginable: Reducing Greenhouse Gas Emissions, David R. Hodas

David R. Hodas

No abstract provided.

Climate Change, Zoning And Transportation Planning: Urbanization As A Response To Carbon Loading, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

This article explores the relationship among zoning, transportation planning, and climate change. It discusses the relationship between land use densities and transportation choices, reviews the trend toward transit oriented development in higher density communities and transportation efficient development in lower density areas, presents several case studies where land use and transportation planning are beginning to intersect, and ends with a strategic approach for communities to consider.

Regulating Municipal Separate Storm Sewer Systems, Alexandra Dapolito Dunn

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Reasonable Emissions Of Greenhouse Gases: Efficient Abatement For A Stock Pollutant, Howard F. Chang

All Faculty Scholarship

No abstract provided.

Negligence In The Air: The Duty Of Care In Climate Change Litigation, David Hunter, James Salzman

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Litigating Canada-U.S. Transboundary Harm: International Environmental Lawmaking And The Threat Of Extraterritorial Reciprocity, Austen L. Parrish, Shi-Ling Hsu

Articles by Maurer Faculty

This Article joins a spirited debate ongoing among international law scholars. Numerous articles have debated the changing nature of international law and relations: the impact of globalization, the decline of territorial-sovereignty, the ever important role that non-state actors play, and the growing use of domestic laws to solve transboundary problems. That scholarship, however, often speaks only in general theoretical terms, and has largely ignored how these changes are playing out in countries outside the United States in ways that impact American interests.

This Article picks up where that scholarship leaves off. It examines one of the perennial challenges for international …

Environmental Law, Eleventh Circuit Survey, Travis M. Trimble

Scholarly Works

In general, 2006 was a good year to be a defendant in environmental cases that reached the Eleventh Circuit. The court placed a narrow construction on operator liability for corporate parents under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and backed agency interpretations of the Clean Air Act (“CAA”) regulations in the face of challenges to their interpretation and use. In an issue of first impression, the court held that the agency’s failure to carry out a nondiscretionary duty under the Endangered Species Act (“ESA”) constituted a one-time, and not a continuing, violation for purposes of applying the …

Stabilizing And Then Reducing U.S. Energy Consumption: Legal And Policy Tools For Efficiency And Conservation, John Dernbach

John C. Dernbach

Rising global demand for energy, high energy prices, climate change, and the threat of terrorism all point to the need for greater energy efficiency and conservation in the United States. While technological innovation is plainly needed, our laws and institutional arrangements must also play an important role. The United States has scores of legal and policy tools from which to choose to improve energy efficiency and curb energy consumption. This article evaluates a handful of these tools: transit-oriented development; fuel taxation; real-time pricing for electricity use; public benefit funds; improved efficiency in existing residential and commercial buildings; and expanded use …

China's Future Lawyers: Some Differences In Education And Outlook, Patricia Ross Mccubbin, Malinda L. Seymore, Andrea Anne Curcio, Llewellyn Joseph Gibbons

Andrea A. Curcio

In this short essay, four U.S. professors who recently served as Fulbright Lecturers in Law in China share important observations about China's future lawyers. The authors discuss key differences in the legal education systems of the two countries, noting that the most significant difference is the lack of Chinese training in the critical legal analysis so familiar to U.S.-trained lawyers. The authors also discuss Chinese law students' limited knowledge of the U.S. legal system and U.S. culture generally. This essay seeks to help members of the U.S. legal community understand the different skill sets and information that Chinese lawyers may …

The Great Lakes As An Environmental Heritage Of Humankind: An International Law Perspective, Dan Tarlock

Dan Tarlock

No abstract provided.

Are Shared Benefits Of International Waters An Equitable Apportionment? (With P. Wouters), Dan Tarlock

Dan Tarlock

No abstract provided.

Genetically Modified Organisms And Justice: The International Environmental Justice Implications Of Biotechnology, Carmen G. Gonzalez

Carmen G. Gonzalez

In September 2006, a WTO dispute settlement panel issued its long-awaited decision in favor of the United States in the dispute between the U.S. and the European Union over genetically modified organisms (GMOs). The ruling was based on narrow procedural grounds, and did not resolve the controversy over the safety of GMOs, over the right of countries to regulate GMOs more stringently than conventional products, or over the consistency of the EU's GMO regulatory regime with WTO requirements. The debate over GMOs continues unabated. Unfortunately, the high profile dispute between the U.S. and the EU has eclipsed the important debate …

Overcoming The Behavioral Impetus For Greater U.S. Energy Consumption, John C. Dernbach

John C. Dernbach

No abstract provided.

China's Future Lawyers: Some Differences In Education And Outlook, Patricia Ross Mccubbin, Malinda L. Seymore, Andrea Anne Curcio, Llewellyn Joseph Gibbons

Malinda L. Seymore

In this short essay, four U.S. professors who recently served as Fulbright Lecturers in Law in China share important observations about China's future lawyers. The authors discuss key differences in the legal education systems of the two countries, noting that the most significant difference is the lack of Chinese training in the critical legal analysis so familiar to U.S.-trained lawyers. The authors also discuss Chinese law students' limited knowledge of the U.S. legal system and U.S. culture generally. This essay seeks to help members of the U.S. legal community understand the different skill sets and information that Chinese lawyers may …