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Full-Text Articles in Law

The Reason Behind The Rules: The Archaeological Resources Protection Act Of 1979 And Scientific Study, Ryan M. Seidemann Nov 2006

The Reason Behind The Rules: The Archaeological Resources Protection Act Of 1979 And Scientific Study, Ryan M. Seidemann

ExpressO

What are the federal agencies’ powers under the Archaeological Resources Protection Act of 1979 (ARPA) to limit or control the scientific study of archaeological materials? The research for this article has led to an ultimate conclusion that ARPA does not provide federal agencies with the power to limit the scope of scientific study on covered archaeological materials. No provision of ARPA provides federal agencies with the authority to act as scientific dictators with ARPA-covered archaeological materials.


Daubert And The Disappearing Jury Trial, Allan Kanner Oct 2006

Daubert And The Disappearing Jury Trial, Allan Kanner

ExpressO

Since being decided by the Supreme Court in 1993, Daubert v. Merrell Dow Pharmaceuticals has earned its place as one of the most misinterpreted and misapplied decisions in modern history. Meant to liberalize the standards for admissions of proof, the decision has had the opposite effect. The gatekeeper powers given to judges via Daubert, coupled with the internal and external incentives to prevent jury trials, has placed our entire civil justice system at risk.


Splitting Genes: The Future Of Gmo's In The Wake Of The Wto/Cartagena Standoff, Sam A. Blaustein Oct 2006

Splitting Genes: The Future Of Gmo's In The Wake Of The Wto/Cartagena Standoff, Sam A. Blaustein

ExpressO

This article examines the conflict surrounding GMO's (Genetically Modified Organisms) between the WTO and the UN. The respective positions of the United States and the European Union are discussed. The article argues that both international and domestic laws conflict with the rigid "precautionary principle" and straight to market approach adhered to by the European Union and the United States respectively. It ultimately suggests that common GMO specific laws are necessary for both sides to meet their respective goals and obligations.


A Complete Property Right Amendment, John H. Ryskamp Oct 2006

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.


Transnational Shipments Of Nuclear Materials By Sea: Do Current Safeguards Provide Coastal States A Right To Deny Innocent Passage?, David B. Dixon Sep 2006

Transnational Shipments Of Nuclear Materials By Sea: Do Current Safeguards Provide Coastal States A Right To Deny Innocent Passage?, David B. Dixon

ExpressO

The maritime transport of nuclear materials has created a conflict between two international law regimes: the United Nations International Law of the Sea, and the developing customary law of the 'precautionary principle' in international environmental law. This conflict became apparent in recent years when several coastal states denied passage to ships transporting nuclear materials arguing the shipments posed an environmental threat. This conflict has raised an issue which is currently unresolved: Do coastal states have a right to prohibit innocent passage to ships carrying nuclear materials if these ships fail to fulfill the requirements of the precautionary principle? This review ...


The African Bushmeat Crisis: A Case For Global Partnership, Andrew Elliott Kohn, Heather E. Eves Sep 2006

The African Bushmeat Crisis: A Case For Global Partnership, Andrew Elliott Kohn, Heather E. Eves

ExpressO

Across Central Africa a commercial, unsustainable, and largely illegal hunting and trade in wildlife for meat has expanded in recent years causing immediate threat to countless wildlife populations and species. Currently, multi-national agreements and government initiatives created to address the bushmeat crisis in the region are unable to halt the extensive destruction to the area’s unique biodiversity . Although many of these agreements strongly support addressing the bushmeat crisis, they lack the resources and capacity to be fully implemented. Strong U.S. engagement in a global partnership, arising from intensive, complete, and wide-ranging bipartisan commitment would greatly enhance existing international ...


China-Australia Free Trade Agreement New Icing On An Old Cake-An Opportunity For Fair Trade?, Benedict Sheehy, Jackson N. Maogoto Sep 2006

China-Australia Free Trade Agreement New Icing On An Old Cake-An Opportunity For Fair Trade?, Benedict Sheehy, Jackson N. Maogoto

ExpressO

The on-going challenge in economic development and globalization, particularly for developing countries, is the issue of development and equality in society. The issue becomes particularly problematic when confronted in matters of international trade. Often misnamed anti-globalization activists and pro-globalization activists fail to take note of the underlying assumptions that lead them to conflict—namely, the actual costs and benefits to society that result from their particular positions. In essence, both activists are searching for ways to improve the lives of people in the domestic context and to minimize the damage to their society and environment. China’s impressive economic record ...


Un-Fair Trade As Friendly Fire: The Australia-Usa Free Trade Agreement, Benedict Sheehy Sep 2006

Un-Fair Trade As Friendly Fire: The Australia-Usa Free Trade Agreement, Benedict Sheehy

ExpressO

Trade, economists and trade theorists advise, is a mutually beneficial exercise. Among this group, a particular set of advocates, claim that “Free Trade” is in the interest of all parties. As will be demonstrated, Free Trade is not truly “free” but an exercise of foreign policy and the implementation of policies favouring wealthy corporate interest groups. Free Trade is controlled by wealthy nations who have stacked the rules in favour of themselves, and in particular their corporate interests, and against the poor producers in poor nations. This control is used contrary to fairness, economic and ecological logic. Fair trade, by ...


Repairing Facade Easements: Is This The Gift That Launched A Thousand Deductions?, Martha W. Jordan Sep 2006

Repairing Facade Easements: Is This The Gift That Launched A Thousand Deductions?, Martha W. Jordan

ExpressO

The Internal Revenue Code encourages owners of buildings listed on the National Register of Historic Places to protect them by donating façade easements to charities dedicated to the preservation of our built environment. The building owner is permitted to claim a charitable contribution deduction equal to the value of the easement. A façade easement is an agreement between the building owner and the charity restricting the ability of the building owner to make changes to the building’s façade. Additionally, the façade easement may require the building owner to maintain the building in a specified condition. This article discusses the ...


How To Sue Without Standing: The Constitutionality Of Citizen Suits In Non-Article Iii Tribunals, David Krinsky Sep 2006

How To Sue Without Standing: The Constitutionality Of Citizen Suits In Non-Article Iii Tribunals, David Krinsky

ExpressO

In recent years, the “injury-in-fact” standing requirement of Article III has frequently impeded attempts by concerned citizens and public interest groups to challenge government actions in federal court.

This article proposes a way in which “citizen suits”—lawsuits brought by plaintiffs who wish to challenge perceived illegalities that affect the public as a whole—can be given a federal forum. It argues that, with some limitations, Congress has authority to authorize pure citizen suits in Article I tribunals, and discusses the (surmountable) obstacles that such fora pose.

After discussing the constitutionality of citizen suits in Article I tribunals, the article ...


Privatizing Eminent Domain: The Delegation Of A Very Public Power To Private, Non-Profit And Charitable Corporations, Asmara Tekle Johnson Sep 2006

Privatizing Eminent Domain: The Delegation Of A Very Public Power To Private, Non-Profit And Charitable Corporations, Asmara Tekle Johnson

ExpressO

In an age of privatization of many governmental functions such as health care, prison management, and warfare, this Article poses the question as to whether eminent domain should be among them. Unlike other privatized functions, eminent domain is a traditionally governmental and highly coercive power, akin to the government’s power to tax, to arrest individuals, and to license. It is, therefore, a very public power.

In particular, the delegation of this very public power to private, non-profit and charitable corporations has escaped the scrutiny that for-profit private actors have attracted in the wake of the U.S. Supreme Court ...


Undoing The Native American Graves And Repartriation Act, Lori N. Wight Sep 2006

Undoing The Native American Graves And Repartriation Act, Lori N. Wight

ExpressO

No abstract provided.


Enforcing Foreign Summary/Default Judgments: The Damoclean Sword Hanging Over Pro Se Canadian Corporate Defendants? Case Comment On U.S.A. V. Shield Development, Antonin I. Pribetic Sep 2006

Enforcing Foreign Summary/Default Judgments: The Damoclean Sword Hanging Over Pro Se Canadian Corporate Defendants? Case Comment On U.S.A. V. Shield Development, Antonin I. Pribetic

ExpressO

Following the 2003 Supreme Court of Canada decision in Beals v. Saldanha, where the “real and substantial connection” test is otherwise met (i.e. consent-based jurisdiction, presence-based jurisdiction or assumed jurisdiction) the only available defences to a domestic defendant seeking to have a Canadian court refuse enforcement of a foreign judgment are fraud, public policy and natural justice. The 2005 Ontario decision in United States of America v. Shield Development Co., presents an opportunity to critically analyze the defence of natural justice through a juxtaposition of American and Canadian procedural law. The thesis is that procedural justice mandates that “form ...


A New Clean Water Act, Paul Boudreaux Sep 2006

A New Clean Water Act, Paul Boudreaux

ExpressO

The Supreme Court’s new federalism has struck its strongest blows so far on the Clean Water Act. This summer, in Rapanos v. United States, a sharply divided Court nearly struck down a large chunk of the Act’s protection of wetlands and other small waterways – five years after an earlier decision had narrowed the reach of the Act because of its supposed overreaching into state prerogative. Why has the Clean Water Act been the Court’s favorite target? One reason is that the statute was fatally flawed when enacted. Congress chose to cover “navigable waters,” but its practical definition ...


International Law Happens: Executive Power, American Exceptionalism, And Bottom-Up Lawmaking, Janet K. Levit Sep 2006

International Law Happens: Executive Power, American Exceptionalism, And Bottom-Up Lawmaking, Janet K. Levit

ExpressO

This essay introduces “bottom-up transnational lawmaking” in the context of contemporary ideological and theoretical debates regarding the breadth and depth of executive power vis-à-vis international law. In an era of globalization, with a proliferation of transnational actors and regulatory instruments, the international lawmaking universe is disaggregating into multiple, sometimes overlapping, lawmaking communities. Neither the President nor others in the “political leadership” sits at the center of many of these communities. Thus, the nationalist critique of international law, rooted in an all-powerful executive who controls international law, creating it and using it instrumentally, in furtherance of the “national interest,” ignores a ...


The Restitutionary Approach To Just Compensation, Tim Kowal Sep 2006

The Restitutionary Approach To Just Compensation, Tim Kowal

ExpressO

In the wake of the Court’s near-total refusal to impose a check on the legislature through the public use clause, this paper discusses whether any confidence in our property rights be restored through the just compensation clause in the form of restitutionary compensation, rather than the traditional, and myopic, “fair market value” standard. This paper discusses the historical presumption against restitution, elucidated through Bauman v. Ross over a century ago, is founded upon (1) the idea that the public should not be made to pay any more than necessary to effect a public project, and (2) the idea that ...


Probing Environmental Discretion: An Argument For Regulating Greenhouse Gases From Motor Vehicles Under The Clean Air Act, Omari O. Jackson Aug 2006

Probing Environmental Discretion: An Argument For Regulating Greenhouse Gases From Motor Vehicles Under The Clean Air Act, Omari O. Jackson

ExpressO

The topic of my comment centers on a discussion of the upcoming U.S. Supreme Court decision in the Massachusetts v. EPA case. In this case, the D.C. Circuit addressed the issue of whether the Clean Air Act authorized the EPA Administrator to control greenhouse gas emissions of new motor vehicles and engines. A three-judge panel voted 2-1 against reviewing the EPA’s decision that it lacked authority under federal law to regulate them. Late last term, the Supreme Court granted certiorari to hear arguments to resolve this controversy. This comment asserts that the Clean Air Act authorizes the ...


"Five Myths About Sprawl", Michael E Lewyn Aug 2006

"Five Myths About Sprawl", Michael E Lewyn

ExpressO

The article reviews a recent book about suburban sprawl (Robert Bruegmann’s “Sprawl: A Compact History”), and shows how the book exemplifies a wide variety of misconceptions about the causes and effects of suburban sprawl. For example, Bruegmann argues that the near-universal existence of some suburban development means that sprawl is inevitable in a free society. My article responds that there is a huge difference between fundamentally pedestrian-friendly cities with some suburban development and regions where an automobile is a necessity even for city-dwellers. The article goes on to show how, by promoting auto-oriented sprawl, government made the latter situation ...


Sustainable Development And Market Liberalism's Shotgun Wedding: Emissions Trading Under The Kyoto Protocol, David M. Driesen Aug 2006

Sustainable Development And Market Liberalism's Shotgun Wedding: Emissions Trading Under The Kyoto Protocol, David M. Driesen

ExpressO

This article analyzes the international emissions trading regime at the heart of the world’s effort to address global warming as a means of exploring broader international governance issues. The trading regime seeks to marry two models of global governance, market liberalism, which embraces markets as the model of global governance, and sustainable development, which seeks to change development patterns to protect future generations. This article explores emissions trading’s implications for understanding the relationship between these ideals.

This article presents new data and theory unsettling the traditional view that market mechanisms encourage innovations vital to sustainable development. Market actors ...


Light From The Trees: The Story Of Minors Oposa And The Russian Forest Cases , Oliver Austin Houck Aug 2006

Light From The Trees: The Story Of Minors Oposa And The Russian Forest Cases , Oliver Austin Houck

ExpressO

This article describes two lawsuits in the late twentieth century that changed their countries in ways from which there will be no return. One took place in the Philippines, emerging from the reign of Fernando Marcos, and the other in Russia, following a near century of communist rule. They have two things in common. They declared the rights of their citizens to challenge, and reverse, government decisions. And they were about the environment, more particularly, trees. What we learn is that notions of environmental protection, citizen enforcement and judicial review have traveled the world and that, in differing legal systems ...


The New Nuisance: An Antidote To Wetland Loss, Sprawl, And Global Warming, Christine A. Klein Aug 2006

The New Nuisance: An Antidote To Wetland Loss, Sprawl, And Global Warming, Christine A. Klein

ExpressO

In 1992, Lucas v. South Carolina Coastal Council held that governments must provide compensation to landowners whenever regulations deprive land of all economically beneficial use, unless the restrictions inhere in background principles of the state’s law of property and nuisance. Such background principles, the Court added, may evolve in accordance with new knowledge. Thus, nuisance became “new” in two critical respects: it expanded from offense to affirmative defense, and it explicitly recognized that new learning continuously redefines the boundaries of nuisance. More than a dozen years have passed since Lucas, and much is new: The years have brought a ...


The Social Obligation Of Property Ownership: A Comparison Of German And U.S. Law, Rebecca Lubens Aug 2006

The Social Obligation Of Property Ownership: A Comparison Of German And U.S. Law, Rebecca Lubens

ExpressO

Although both Germany and the United States have strong market-based economies characterized by rigorous protection of private property rights, the two countries have different conceptions of land ownership based on distinct notions of the individual’s place in society. Whereas property protection under the U.S. Constitution emphasizes individual freedom, German law explicitly considers the individual’s place in and relationship to the social order in defining ownership rights. The property clause in the German Grundgesetz (The Basic Law, the German constitution) contains an affirmative social obligation alongside its positive guarantee of ownership rights. The U.S. Constitution, on the ...


Regulating Evolution For Sale: An Evolutionary Biology Model For Regulating The Unnatural Selection Of Genetically Modified Organisms, Mary Jane Angelo Aug 2006

Regulating Evolution For Sale: An Evolutionary Biology Model For Regulating The Unnatural Selection Of Genetically Modified Organisms, Mary Jane Angelo

ExpressO

In the past ten years there has been an explosion in the genetic manipulation of living organisms to create commercial products. This genetic manipulation has, in effect, been a directed change in the evolutionary process for the purpose of profit. This deliberate alteration of the path of evolution has brought with it a panoply of novel environmental, human health, and economic risks that could not have been foreseen when U.S. environmental and health protection laws evolved. Many products of genetic engineering have been modified to possess traits that increase their ability to reproduce and survive in the environment. By ...


The "Benefits" Of Non-Delegation: Using The Non-Delegation Doctrine To Bring More Rigor To Benefit-Cost Analysis, Victor B. Flatt Aug 2006

The "Benefits" Of Non-Delegation: Using The Non-Delegation Doctrine To Bring More Rigor To Benefit-Cost Analysis, Victor B. Flatt

ExpressO

This article examines the problems of benefit-cost (or cost-benefit) analysis in our regulatory system and posits that a more nuanced version of the “non-delegation” doctrine (made famous in Schechter Poultry) could improve many of the problems associated with the use of benefit-cost analysis. In particular this article notes that many of the problems with benefit-cost analysis are its use by agencies to make large policy decisions, which could be characterized as legislative. The article also notes that though the “non-delegation” doctrine may appear to be dead or dormant, that a form of it, in separation of powers doctrine, exists in ...


The Eastern Lowland Gorilla: Saving The Victims Of Coltan, Amy Costanzo Aug 2006

The Eastern Lowland Gorilla: Saving The Victims Of Coltan, Amy Costanzo

ExpressO

This article addresses the demand for coltan and the effects of this demand on the Eastern Lowland Gorilla, a species of great ape residing largely in the Democratic Republic of the Congo, home to greatest coltan reserves in the world. The growing demand for coltan has had a devastating effect on this animal, which includes habitat destruction, gorillas being killed for bushmeat, and baby gorillas being orphaned or sold as pets.

It addresses the international agreements, including CITES and the Convention on Biological Diversity, that have already been passed in an effort to help save the Eastern Lowland Gorilla, among ...


British National Parks For North Americans: What We Can Learn From A More Crowded Nation Proud Of Its Countryside, Federico Cheever Aug 2006

British National Parks For North Americans: What We Can Learn From A More Crowded Nation Proud Of Its Countryside, Federico Cheever

ExpressO

England and Wales contain twelve national parks coverings more than 10 percent of their landscape. Although these parks are managed as national resources, the vast majority of the land within their borders is privately owned. Although they are managed to preserve their natural qualities, they contain farms, towns and roughly 300,000 people. They contain nothing North Americans would consider wilderness. Although recognized national assets, nationally funded, they are administered by boards made up largely of local representatives. Since passage of the National Parks and Access to Countryside Act of 1949, the British have managed to develop a national park ...


Making Regulation Evolve: A Case Study In Maladaptive Management, Alejandro E. Camacho Aug 2006

Making Regulation Evolve: A Case Study In Maladaptive Management, Alejandro E. Camacho

ExpressO

This Article is the first cross-disciplinary, comprehensive assessment of one of the earliest regulatory reinvention programs developed to foster more participation and adaptation in decision-making—the Endangered Species Act’s Habitat Conservation Plan Program. Drawing not only from legal sources but also integrating data from recent scientific studies, interviews, surveys of government officials, newspaper investigations, and unpublished databases, this Article delves into the pioneering but defective HCP program as an example of regulatory innovation gone awry.

In the active literature on regulatory reinvention, many have pointed to the HCP program as a prototype for collaborative, experimentalist innovations in governance. Though ...


Modern Public Trust Principles: Recognizing Rights And Integrating Standards, Alexandra B. Klass Aug 2006

Modern Public Trust Principles: Recognizing Rights And Integrating Standards, Alexandra B. Klass

ExpressO

The public trust doctrine has a long history from its beginnings as an obligation on states to hold lands submerged under navigable waters in trust for the public, to its resurgence in the 1970s as a protector of natural resources, to its influence on state statutory and constitutional law as the public embraced environmental protection principles. However, many have argued that the public trust doctrine has not lived up to its potential as a major player in environmental and natural resources law. This article proposes a new framework for the public trust doctrine as a state tool for environmental protection ...


Waters Of The United States: Theory, Practice And Integrity At The Supreme Court, Jamison E. Colburn Jul 2006

Waters Of The United States: Theory, Practice And Integrity At The Supreme Court, Jamison E. Colburn

ExpressO

In the Supreme Court's two wetlands cases this Term, a question of statutory interpretation divided the justices sharply, in part because so much rides on the particular statutory provision at issue. The provision, a cryptic definition within the Clean Water Act (CWA), has now provided three separate occasions at the Court where the justices have confronted (1) the Chevron doctrine and the Court’s own ambivalence toward it, and (2) the CWA's enormous project of restoring the chemical, physical, and biological integrity of the Nation's waters. In this essay, I argue that the way the Court went ...


Ceqa Analysis Of Development Displaced By Rejected Projects, George Lefcoe Jul 2006

Ceqa Analysis Of Development Displaced By Rejected Projects, George Lefcoe

University of Southern California Legal Studies Working Paper Series

In order to prevent the avoidable environmental degradation that often accompanies new development, the California Environmental Quality Act (CEQA) requires state and local decision makers to consider the potential environmental impacts of their discretionary approvals, even when they are voting entitlements for purely private development projects. California cities are burdened with notoriously underfunded transportation infrastructure and poor air quality, so CEQA findings can be marshaled to justify rejection of almost any proposed project. Because of California’s staggeringly high growth rates, projects rejected at one location are likely to find their way to another site within the same market area ...