Law Commons^™

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

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This brief comment suggests where the anti-eminent domain movement might be heading next.

Statutes Of Repose And The Equal Protection Clause Of The 14th Amendment Of The U.S. Constitution, Garris G. Ference

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No abstract provided.

A Modern Disaster: Agricultural Land, Urban Growth, And The Need For A Federally Organized Comprehensive Land Use Planning Model, Jess M. Krannich

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No abstract provided.

When Is Two A Crowd? The Impact Of Federal Action On State Environmental Regulation, Jonathan H. Adler

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This article seeks to identify the ways in which federal actions can influence state regulatory choices in the context of environmental policy. The federal government may directly influence state policy choices by preempting state policies or by inducing state cooperation through the use of various incentives and penalties for state action. The federal government may indirectly, and perhaps unintentionally, influence state policy choices as well. Federal policies may encourage greater state regulation by reducing the costs of initiating regulatory action or by placing issues on state policy agendas. Federal regulation may also discourage or even “crowd-out” state-level regulatory action by …

Finding New Constitutional Rights Through The Supreme Court’S Evolving “Government Purpose” Test Under Minimum Scrutiny, John H. Ryskamp

ExpressO

By now we all are familiar with the litany of cases which refused to find elevated scrutiny for so-called “affirmative” or “social” rights such as education, welfare or housing: Lindsey v. Normet, San Antonio School District v. Rodriguez, Dandridge v. Williams, DeShaney v. Winnebago County. There didn’t seem to be anything in minimum scrutiny which could protect such facts as education or housing, from government action. However, unobtrusively and over the years, the Supreme Court has clarified and articulated one aspect of minimum scrutiny which holds promise for vindicating facts. You will recall that under minimum scrutiny government’s action is …

Using Capture Theory And Chronology In Eminent Domain Proceedings, John H. Ryskamp

ExpressO

Capture theory--in which private purpose is substituted for government purpose--sheds light on a technique which is coming into greater use post-Kelo v. New London. That case affirmed that eminent domain use need only be rationally related to a legitimate government purpose. Capture theory focuses litigators' attention on "government purpose." That is a question of fact for the trier of fact. This article shows how to use civil discovery in order to show the Court that private purpose has been substituted for government purpose. If it has, the eminent domain use fails, because the use does not meet minimum scrutiny. This …

Gayanashogowa And Guardianship: Expanding And Clarifying The Federal-Tribal Trust Relationship, Kavitha Janardhan

ExpressO

The Onondaga Nation of New York seeks to nullify a series of treaties executed by the State of New York, and thereby assert title to over 3100 square miles of land in Central New York State. The goal of the suit is to enforce an environmental restoration of culturally and historically significant aboriginal lands. In order to bring a claim against the State, the Nation must first compel the federal gov-ernment to act on its behalf. By emphasizing distinctive features of Iroquois self-government, the following Note suggests ways to expand the federal government’s trust responsibility to protect cultural inter-ests in …

The United States' Experience With Energy-Based Tax Incentives: The Evidence Supporting Tax Incentives For Renewable Energy, Mona L. Hymel

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Developing sustainable markets for renewable energy technologies presents complex challenges. Financial, institutional and informational obstacles impede advancement of these technologies. Tax incentives are often utilized to assist policy makers in dealing with these challenges. Because tax incentives and subsidies generally decrease governmental revenues, understanding their costs and benefits is critical in determining policy choices. For almost 90 years the United States has granted tax incentives, direct subsidies and other support to the energy industry in an effort to enhance U.S. energy supplies. Historically, those incentives targeted only the petroleum industry. Since the late 1970s, however, Congress has enacted incentives to …

The Law Of Sprawl: A Road Map, Michael Lewyn

ExpressO

In the fall of 2004, I taught a seminar on “The Law of Sprawl” at Southern Illinois University (SIU) School of Law. This essay seeks to guide would-be teachers of a course on sprawl by showing how I taught the course.

Specifically, the article asserts that a seminar on sprawl belongs in law school curricula as well as planning school curricula, because a wide variety of legal rules contribute to sprawl. The article then goes on to discuss those legal rules and how I addressed them in my course. For example, the article discusses land use regulations that encourage automobile-dependent …

Congress' Pet: Why The Clean Air Act’S Favoritism Of California Is Unconstitutional Under The Equal Footing Doctrine , Valerie Jm Brader

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The Clean Air Act gives two regulatory powers to one state – California – that it forbids to all others: the power to regulate fuels, and the power to regulate motor vehicle construction. This paper makes the novel argument that by creating a differential in power between the states, these provisions violate the equal footing doctrine, and are therefore unconstitutional. In doing so, it is the first law review article to provide a complete history of the doctrine, a foundational principle that pre-dates the Constitution and remains the law of the land today. Though the doctrine has been relegated to …

Getting Into The Act: Enticing The Consumer To Become “Green” Through Tax Incentives, Roberta F. Mann, Mona L. Hymel

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Energy tax incentives have historically focused on the supply of energy sources. The U.S. government spends billions of dollars each year propping up the petroleum industry through tax incentives. For example, oil and gas incentives encourage production and enhanced oil recovery strategies. Furthermore, most of the tax incentives directed towards “environmentally friendly” technologies focus on creating new technology or increasing alternative fuel supplies. Meanwhile, federal policy makers have largely neglected the demand side of the energy equation. Properly designed tax incentives can effectively encourage energy consumers to conserve energy and use different energy sources. On the federal level, the clean …

Localism's Ecology: Protecting And Restoring Habitat In The Suburban Nation, Jamison E. Colburn

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There is wide agreement among conservation activists and scientists alike that loss and alteration of habitat are the leading threats to biodiversity in America. Suburbs and exurbs, though, are only beginning to acknowledge that they are the problem in the struggle to stem the tide of “sprawl” and other economic processes producing ecosystem-wide habitat degradation today. A recent resurgence in academic and activist attention to local governments in America is reconsidering them as viable solutions to this problem. But most of this dialogue is being based upon a mistaken conception of local governance. Much of the legal scholarship on local …

Regulatory Reform: The New Lochnerism?, David M. Driesen

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This article explores the question of whether contemporary regulatory reformers’ attitudes toward government regulation have anything in common with those of the Lochner-era Court. It finds that both groups tend to favor value neutral law guided by cost-benefit analysis over legislative value choices. Their skepticism toward redistributive legislation reflects shared beliefs that regulation often proves counterproductive in terms of its own objectives, fails demanding tests for rationality, and violates the natural order. This parallelism raises fresh questions about claims of neutrality and heightened rationality that serve as important justifications modern regulatory reform.

Wind Energy And Its Impact On Future Environmental Policy Planning: Powering Renewable Energy In Canada And Abroad, Kamaal Zaidi

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With the rising demand for energy from finite conventional sources such as coal and natural gas, the emphasis on modern environmental policy planning for renewable energy is rapidly gaining attention. In particular, wind energy projects that include wind turbine technology is helping drive this trend towards cheaper, cleaner, and more reliable forms of energy that provide electricity to consumers. This paper provides an introductory review of wind energy, outlining its history, technology, and current legislative frameworks adopted by various nations in harnessing renewable energy. This analysis includes a thorough discussion of Canada’s approach, but continues with renewable wind programs in …

Making Main Street Legal Again: The Smartcode Solution To Sprawl, Chad Emerson

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No abstract provided.