Digital Commons Network^™

Constitutional Dilemmas Posed By State Policies Against Marine Pollution - The Maine Example, Daniel Wilkes

Maine Law Review

The physical fact about coastal pollution is that, since many of its harms are irreversible, it must be prevented and not just dealt with as it arises. The legal fact about coastal pollution is that legislation which aims to prevent pollutants must survive attacks under the due process, equal protection, commerce, and privileges and immunities clauses of the federal Constitution if we are not to lose entirely the enjoyment of our coastal waters. As the following discussion of the "Environmental Protection Package" passed by the First Special Session of the 104th Maine Legislature and the earlier Wetlands Act shows, judicial …

Ransoming The Maine Environment, G. Graham Waite

Maine Law Review

The call for natural resource conservation is widely heard today. Purity of air and water are goals that most persons seem to endorse, at least in the abstract. The dollar costs of governmental programs for achieving relatively clean air and water doubtless are high, making questions of who bears them important. Some recent decisions of the Maine Supreme Judicial Court suggest that in Maine the major costs will be paid by taxpayers at large rather than by individual resource users.

A State Approach To Effluent Charge, Orlando E. Delogu

Maine Law Review

Although the concept of effluent charge as a means of dealing with water pollution has been widely discussed in this country for more than a decade and widely used with documented success in parts of Europe for over fifty years, there is a surprising lack of specific material on methods of implementation. We are, after all, a complex society with overlaying levels of government and close working relationships between the public and private sectors of the economy. Furthermore, the statutory, constitutional, and institutional framework of the federal government and that of each state government are different in varying degree from …

Maine's Coastal Conveyance Of Oil Act: Jurisdictional Consideration, Maine Law Review

Maine Law Review

Maine's Coastal Conveyance of Oil Act is the most comprehensive oil discharge control law in the United States. Such broad regulatory legislation inevitably raises questions of constitutionality and, as expected, the oil industry has brought a challenge to the Maine statute. In American Oil Co. et al. v. Environmental Improvement Commission, a declaratory judgment action, the Maine act has been alleged to violate the commerce, due process, equal protection and admiralty clauses of the United States Constitution. Although each allegation of constitutional conflict raises substantial problems, the most troublesome attack is that based upon the admiralty clause. Here the basic …

Federal Evaluation Of Riparian Property: Section 111 Of The Rivers And Harbors Act Of 1970, Ronald C. Allen

Maine Law Review

Certain of our citizenry persist in their belief that the water resources of this nation are essentially a free good which necessitates very little, if any, governmental interference in the development or beneficial exploitation of these resources. Theirs is obviously a dream world which dangerously ignores evidence from much of our history as well as the obvious conditions of the present. The nation is confronted with too many people, and the promise of many more, making too many demands upon our existing and foreseeable supply of water to allow the perpetuation of a myth of rugged individualism. This attitude has …

A National Environmental Policy: Now You See It, Now You Don't, Edward S. Muskie, Eliot R. Cutler

Maine Law Review

The National Environmental Policy Act was born with a fanfare of rhetoric. Suddenly sensitive to the urgency of the environmental crisis, Congress passed the bill quickly, and President Nixon seized the opportunity to sign it on the first day of the new decade. During its early years, NEPA was hailed by environmental activists as nothing short of a panacea; the environmentalists were nearly unanimous in singing its praises. At the same time, industrialists warned that NEPA's provisions could stop growth and progress in their tracks. But in recent months the battle lines have begun to shift. When the subject of …

A National Environmental Policy: Now You See It, Now You Don't, Edward S. Muskie, Eliot R. Cutler

Maine Law Review

The National Environmental Policy Act was born with a fanfare of rhetoric. Suddenly sensitive to the urgency of the environmental crisis, Congress passed the bill quickly, and President Nixon seized the opportunity to sign it on the first day of the new decade. During its early years, NEPA was hailed by environmental activists as nothing short of a panacea; the environmentalists were nearly unanimous in singing its praises. At the same time, industrialists warned that NEPA's provisions could stop growth and progress in their tracks. But in recent months the battle lines have begun to shift. When the subject of …

No Lawyer, No Jail: A Critical Case Study Of Pragmatism And The Flaws Of “Purposeful” Decision Making In Argersinger V. Hamlin, Alisa Smith, Sarah K. Stice

Seattle University Law Review

By releasing conference notes and internal communications, Supreme Court Justices provide insight into the otherwise private decisionmaking process, shedding light on how case outcomes and legal reasoning are framed and negotiated. The watershed case of Argersinger v. Hamlin (1972) extended the constitutional right to counsel to some, but not all, misdemeanor defendants. The case was argued twice, and the Court relied on empirical and authoritative sources to answer complex and practical questions about requiring counsel. This case study employs critical discourse analysis to uncover what influenced the Justices’ decisions and how they framed, shaped, and constructed social realities to foreground …

Modern Day Colonialism Through HawaiʻI’S Quiet Title And Partition Laws, Cheyann Fujii

Seattle University Law Review

This Note will attempt to highlight important aspects of Hawaiian history to provide readers with a clear picture on how Native Hawaiians are still impacted by colonialism, specifically when plaintiffs bring a quiet title or partition action against Native Hawaiian owners of kuleana lands. Before colonization, the concept of private land ownership did not exist in Hawai‘i, and Native Hawaiians adopted a feudal system by dividing land into geographical areas. Missionaries and businessmen brought Western ideas to Hawai‘i and influenced legislation such as the Great Māhele and the Kuleana Land Act of 1850, which solidified the concept of private property. …

Data Advantage And Merger Review: Can Entrenchment Theory Reform Antitrust Enforcement?, Shin-Ru Cheng

Seattle University Law Review

A merger involving giant digital companies is likely to dampen competition, as it allows those companies to combine and control data access, enabling them to entrench their dominant positions in relevant markets and extend those positions into related markets. While competition law in many jurisdictions aims to prohibit mergers that may substantially lessen competition or create a monopoly, arguably the review of digital mergers is failing because antitrust agencies lack an effective approach to identify data-generated anticompetitive harms. This Article demonstrates that entrenchment theory, recently reintroduced in the 2023 U.S. Merger Guidelines, would help reform the process of antitrust enforcement. …

Defining Deference: Impacts Of Abandoning Chevron On Emerging Technology Governance And Administrative Law, R. Aubrey Davis Iii

Seattle University Law Review

Emerging technologies, particularly Artificial Intelligence (AI), often lead to unforeseen legal outcomes. Notable abuses in areas such as facial recognition, employment bias, and housing discrimination are well known. However, legislative responses to these issues either have been largely reactive or there has been no legislative response at all. In lieu of legislation, agencies have sought to fill the gap. For example, the Federal Communications Commission (FCC) recently proposed a rule mandating voter notification for all AI-generated political phone calls citing the Telephone Consumer Protection Act (TCPA) of 1991 as authority. However, the TCPA was originally passed to curtail telemarketing, not …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Caution: Potholes In E-Scooter Data Collection, Dakota Rakestraw

Seattle University Law Review

Lime scooters keep ending up in major waterways in Washington state metro areas, a testament to the ubiquity of e-scooters in the metropolitan landscape. How they get there is unclear. Why they get there is even murkier. Perhaps the answer lies in the implications of modern geolocation data collection through e-scooters and gaps in current data collection regulation curbing individual liberties.

Since September 2020, electric scooters have run Seattle’s streets and have dramatically overtaken ridesharing bike trips. For example, from September 2020 to September 2021, there were about 1.4 million scooter and bike trips with September 2021 seeing 300,000 scooter …

Machinists Preemption In The New Administrative Law, Andrew J. Ziaja

Seattle University Law Review

This Article assesses Machinists preemption—a labor-specific form of implied field preemption—while freshly considering implications both for and of new developments in administrative law. The radical transformation of administrative law in the Supreme Court, particularly its newfound emphasis on clear-statement rules, provides opportunities to reconsider the Machinists rationale. Aligning with scholars who have called to question the doctrine’s “ossifying” influence on labor and employment policy, it argues that the modern-day version of Machinists preemption clashes with the Supreme Court’s newly constrained view of delegated power and its differing conceptions of the major questions doctrine.

On the other hand, Machinists preemption might …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

The Race To Erase: Destruction Of Government Documents Undermines Freedom-Of-Information Laws, Frank D. Lomonte

Seattle University Law Review

In August 2019, reporters with Chattanooga’s daily newspaper, the Times Free Press, filed what seemed to be a routine request for access to emails and other public records held by their local county government. The seemingly unremarkable request set the newspaper’s staff on a months-long journey of unpleasant surprises. The first was a demand to pay the county $717 in advance before being allowed to inspect the documents. The second was that—during prolonged haggling over the fee assessment— the county attorney’s office simply destroyed almost all of the disputed records. Third, and most glaringly, the journalists discovered that Tennessee law …

When You’Re Arrested For A Felony In Seattle, You’Ll Meet Me., Austin Field

Seattle University Law Review

In this Essay, Austin Field, a practicing public defender, uses a first-person perspective to describe what it is like to meet a criminal defendant for the first time. He explains the process from start to finish, detailing everything from the way he introduces himself to how bail works.

"I’ll ask you for your name. Most of the time, you tell me. I check your name against my list. On any given day I’m supposed to interview between five and fifteen people. I have a lot of questions for you. We only have about ten minutes."

The Public Square In A Private-Property Obsessed Country: What New York City’S Pops Regulations Get Right And Why Other Cities Should (Mostly) Copy Them, Carson Mcgregor

Seattle University Law Review

When New York City (NYC) was first becoming the metropolitan monolith it is today, it had a problem: the city streets were chock full of skyscrapers, and sunlight, air, and usable open space were at a premium. In response, the City promulgated its first Privately Owned Public Spaces (POPS) regulations, which allowed developers to build skyward in exchange for providing public space on the street level. Unfortunately, in July of 2023, the New York Times (NYT) discovered that New Yorkers received only a fraction of what they were promised. Building owners received billions of dollars’ worth of added floor space, …

Intellectual Property Or Modern Folklore? The Problem With Open Gaming Licenses In Tabletop Gaming, Rosie Midget

Seattle University Law Review

This Note addresses how courts and legislatures should address “Open Gaming Licenses” commonly attached to tabletop roleplaying games (TTRPGs), which game publishers use to promote a false image of accessibility—misleading consumers and building goodwill from the misunderstanding. Part I discusses what TTRPGs are, including the defining features of the hobby and culture surrounding it, as well as the unique interplay between publishers and players. Part II explores the question of which elements in a TTRPG system may be subject to copyright protection. Part III examines these elements in practice using Wizards of the Coast’s Dungeons and Dragons TTRPG as a …

Legacy Liabilities For Oil And Gas Wells Under The Mineral Leasing Act, Martin Lockman, Ashwin Murthy, Romany M. Webb

Sabin Center for Climate Change Law

The federal government is the largest landowner in the United States. The bulk of federal land is controlled by the Bureau of Land Management (“BLM”), an agency within the Department of the Interior (“DOI”) that manages more than 245 million acres or approximately 10% of the land in the United States. Below the ground, BLM’s authority reaches even further. In total, BLM controls around 700 million acres of minerals — 30% of the onshore mineral resources in the United States, spanning an area larger than Argentina. The enormous scale of oil and gas production on federal land has created a …

Conservation Advocates Zambia Limited V The Attorney General (2023/Ccz/0018) [2024] Zmcc 6, Emmanuel N. Nyambe

SAIPAR Case Review

The author explores Conservation Advocates Zambia Limited v The Attorney General, contrasting the majority’s application of the constitutional avoidance doctrine with a forceful dissent. The majority declined to hear an environmental petition, classifying the grievances as statutory rather than constitutional. The author aligns with the dissent, arguing that such reasoning sidesteps the judiciary’s constitutional mandate to protect and promote environmental rights. The case presents a fundamental choice for the Court: whether to treat the Constitution as a source of aspirational guidance or as a directly enforceable instrument of environmental accountability and public participation.

Overharvesting: The Why Of Biodiversity Loss, Andrew W. Torrance, Bill Tomlinson

Texas A&M Journal of Property Law

This Article examines the consequences of overharvesting biodiversity, focusing on its detrimental effects on biodiversity—on the biosphere, ecosystems, communities, populations, and individual organisms. It evaluates legal mechanisms designed to protect biodiversity from overharvesting and also considers legal mechanisms that lead to overharvesting to the detriment of biodiversity. The Article compares regulations and laws from multiple jurisdictions, including Europe, Oceania, Asia, Africa, and the Americas, and analyzes how these regulations and laws seek to curb overharvesting. Examples include the United States’s Endangered Species Act, Canada’s Wild Animal and Plant Protection Act, and the European Union’s Marine Strategy Framework Directive. International conventions …

Pollution: The What Of Biodiversity Loss, Andrew W. Torrance, Bill Tomlinson

Texas A&M Journal of Property Law

This Article examines the damage to biodiversity caused by anthropogenic pollution at all levels—to the biosphere, to ecosystems, to communities, to populations, and to individual organisms. It also analyzes pollution control laws across the globe and their efficacy in mitigating or preventing harm to biodiversity. The analysis covers all forms of pollution—air, water, and land—that threaten biodiversity, noting both improvements and ongoing challenges in different regions. The Article provides a comparative study of diverse jurisdictions, including North America, Europe, Oceania, and Asia. It scrutinizes pivotal legislation such as the United States’ Clean Air Act, the UK’s Environment Act, and the …

Goodbye, Zoning?, Michael Allan Wolf

UF Law Faculty Publications

American zoning is under attack on multiple fronts. The concerns of zoning's many critics range from social and racial justice, to private property rights, to the extreme shortage of affordable housing, to climate-change resilience and sustainability. A growing number of voices have called for, at a minimum, the elimination of single-family zones; some even champion the abolition of this ubiquitous method of American land use regulation. This Article is the first detailed look at what would happen if zoning's critics got their way. The most efficient means for erasing zoning from American law would be for the U.S. Supreme Court …

The Effect Of Non-Profit Organizations On The Passage Of Climate Change Legislation In Connecticut, John-Henry Burke

Honors Scholar Theses

Connecticut has a long history of climate action. In this study, I looked into the effect that non-governmental organizations have on the passage of climate change legislation in Connecticut. Eighteen different climate policy stakeholders, including legislatures, non-governmental organization (NGO) staff members, youth activists and state employees were interviewed to gain their perspective on how non-profits forward climate initiatives. I found that non-profit organizations do have a significant impact on the passage of climate change legislation in Connecticut by working as providers of information to legislators and mobilizers of constituents. This impact can be limited by various political factors.

Development And Practice Of Tribal Community Planning: Ensuring Indigeneity In The Planning Process, Jared E. Munster, Ph.D.

American Indian Law Journal

No abstract provided.

Zero Waste Initiatives Across Three Institutions: Local Government, An Academic Institution, And A Retail Business, Soren G. Gray

Graduate Student Portfolios, Professional Papers, and Capstone Projects

No abstract provided.

Trump Attacks On Climate Science May Violate Numerous Federal Laws, Michael B. Gerrard

Faculty Scholarship

Starting on its first day on January 20, 2025, the second Trump administration has launched an unprecedented rollback of efforts to fight climate change. The Sabin Center for Climate Change Law’s Climate Backtracker already has 117 items.

Much of this is aimed at scientific research on climate change, or has the effect of inhibiting the conduct and dissemination of this research. Many of these actions may also violate federal laws.

This article discusses these actions, some of their legal implications, and the litigation challenges that have already been brought. It begins with actions that are specifically aimed at climate research, …

The Onondaga Nation's Land Claim: Rights Without A Remedy?, Larissa Speak

American Indian Law Journal

No abstract provided.

Case Law On American Indians: September 2023 - August 2024, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.