Digital Commons Network^™

Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel

Nehal A. Patel

AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …

Shared Sovereignty: The Role Of Expert Agencies In Environmental Law, Michael Blumm, Andrea Lang

Michael Blumm

Environmental law usually features statutory interpretation or administrative interpretation by a single agency. Less frequent is a close look at the mechanics of implementing environmental policy across agency lines. In this article, we offer such a look: a comparative analysis of five statutes and their approaches to sharing decision-making authority among more than one federal agency. We call this pluralistic approach to administrative decisionmaking “shared sovereignty.”

In this analysis, we compare implementation of the National Environmental Policy, the National Historic Preservation Act, the Endangered Species Act, the Clean Water Act, and the Federal Power Act. All of these statutes incorporate …

A Taxing Endeavor: Local Government Protection Of Our Nation's Coasts In The "Wake" Of Climate Change, Simone Savino

Simone Savino

A storm is brewing, and not just in our nation’s coastal waters. The effects of climate change are becoming alarmingly apparent: sea levels are rising, storm surges are intensifying and ocean temperatures are warming at increasing speeds. Higher storm surges have led to increased flooding in coastal zones and nearby low-lying regions. The need for greater disaster preparedness in areas vulnerable to storm surges is evident, not just in the United States, but worldwide. As a direct result, coastal towns and cities have been left with the daunting task, and cost, of implementing littoral adaptation measures such as beach renourishment …

Is An Apartment A Nuisance?, Michael Lewyn

Michael E Lewyn

In an ongoing Texas lawsuit, some homeowners allege that a nearby apartment building will constitute a nuisance. This article asserts that courts should generally reject nuisance claims against multifamily housing, based on the public interest in favor of increased housing supply and infill development.

The (Somewhat) False Hope Of Comprehensive Planning, Michael Lewyn

Michael E Lewyn

Some commentators equate municipal comprehensive plans with "smart" growth (that is, development that considers the needs of nondrivers as well as the needs of automobiles). However, comprehensive planning. although desirable, is neither necessary nor sufficient for smart growth. Plans are not necessary because zoning reforms can achieve the same smart growth objectives as plans, and are not sufficient because many comprehensive plans support sprawl rather than smart growth.

Bubbles (Or, Some Reflections On The Basic Laws Of Human Relations), Donald J. Kochan

Donald J. Kochan

Green Building Geography Across The United States: Does Governmental Incentives Or Economic Growth Stimulate Construction?, Darren Prum, Tetsuo Kobayashi

Darren A. Prum

As green building activity continues to rise across the country, some state governments decided to create incentives that would motivate developers to voluntarily pursue third party certification for their real estate projects in order to assist in meeting sustainability and environmental goals. Despite the growing number of studies in green buildings, the geography of green buildings and sustainable construction only includes a few studies, which emphasize the lack of green building research from the spatial perspective and their relevance to public policies the lack of green building research from the spatial perspective and their relevance to public policies. This study …

The Commons, Capitalism, And The Constitution, George Skouras

George Skouras

Thesis Summary: the erosion of the Commons in the United States has contributed to the deterioration of community and uprooting of people in order to meet the dynamic demands of capitalism. This article suggests countervailing measures to help remedy the situation.

Antimonopoly And The Radical Lochean Origins Of Western Water Law, Michael Blumm

Michael Blumm

This review of David Schorr's book, The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier, maintains that the book is a therapeutic corrective to the standard history of the origins of western water law as celebration of economic efficiency and wealth maximization. Schorr's account convincingly contends that the roots of prior appropriation water law--the "Colorado Doctrine"--lie in distributional justice concerns, not in the supposed efficiency advantages of private property over common property. The goals of the founders of the Colorado doctrine, according to Schorr, were to advance Radical Lochean principles such as widespread distibution of water …

Something Rich And Strange: Progressive Land Use Regulation And The Takings Doctrine, Philip C. Dales

Philip C. Dales

ABSTRACT:

Something Rich and Strange: Progressive Zoning and the Takings Doctrine.

Philip Carter Dales

May, 2013

University of Maryland Francis King Carey School of Law

The list of municipalities adopting form-based codes continues to grow, with one study putting the number at over 250, including Miami, Denver, Cincinnati and other major cities around the United States. These codes represent land use regulation that is fundamentally different from traditional Euclidean zoning. Rather than prescribing allowable uses, FBCs focus on the governance of form, with the goal of ensuring predictable outcomes for the built environment and simplifying complex use-based zoning ordinances.

In …

Climate Change Adaptation And Coastal Property Rights: A Massachusetts Case Study, Lara D. Guercio

Lara D. Guercio

This Article examines how existing state laws, including coastal property law and public trust doctrines, are likely to create challenges for the implementation of adaptation strategies proposed to address the effects of climate change—specifically, accelerated sea level rise, increased coastal flooding and storm-related erosion—on coastlines and connected natural resource areas, such as beaches, coastal wetlands, and tidelands. The Article uses Massachusetts, with its highly evolved body of coastal property law and public trust doctrine, as a case study. Mindful of U.S. Supreme Court takings doctrine, the Article analyzes the likely legal challenges to climate change adaptation strategies recently proposed for …

Shifting Sands: A Meta-Theory For Public Access And Private Property Along The Coast, Melissa K. Scanlan

Melissa K. Scanlan

Over half the United States population currently lives near a coast. As shorelines are used by more people, developed by private owners, and altered by extreme weather, competition over access to water and beaches will intensify, as will the need for a clearer legal theory capable of accommodating competing private and public interests. One such public interest is to walk along the beach, which seems simple enough. However, beach walking often occurs on this ambulatory shoreline where public rights grounded in the public trust doctrine and private rights grounded in property ownership intersect. To varying degrees, each state has a …

Regulatory Takings: Survey Of A Constitutional Culture, James Valvo

James Valvo

Fifth Amendment property protections under the Takings Clause have grown increasingly contentious as governing entities have used regulations to limit what property owners can do with their land. This paper profiles regulatory takings jurisprudence from Pennsylvania Coal, to Penn Central, to Nollan and Dolan, and Tahoe-Sierra. The paper also examines conceptual constructs that have shaped the field’s evolution, including: the doctrine’s origin, the nuisance exception, the changed circumstances argument, unconstitutional conditions, temporary takings and the denominator problem.

Our Own Private Sustainable Community: Are Green Covenants, Conditions, And Restrictions A Viable Alternative To A More Environmentally Sustainable Future For Homeowners?, Darren Prum, Robert Aalberts

Darren A. Prum

Residential and commercial property owners have sought for centuries to develop and enrich their physical environment through private land use planning. In more recent decades, residential owners residing in community interest communities have been particularly active in crafting an evolving array of deed restrictions contained in Covenants, Conditions and Restrictions( CC&R’s). CC&R’s, which are generally created by the CIC developer , are mutually binding and enforceable against all those who live or conduct business in self-selected residential subdivisions or commercial developments . Importantly, CC&R’s are monitored sometimes quite forcefully, under the watchful eye of an empowered planned development association.

Although …

In Third Parties We Trust? The Growing Antitrust Impact Of Third-Party Green Building Certification Systems For State And Local Governments, Darren Prum, Robert Aalberts, Stephen Del Percio

Darren A. Prum

According to the American Institute of Architects, there has been a 50 percent increase in the number of municipalities with a green building program in place since 2007. And 24 of the country's 25 largest metropolitan areas are built around a city with green building legislation on its books. Reducing buildings' environmental impact is a noble - and critical - goal. But governments' reliance on private, third-party standard-setting organizations - and the rating systems that they promulgate - as the basis for that legislation may be legally problematic.

This Article reviews one of those potentially problematic bases: antitrust. In order …

Environmental Law As A Mirror Of The Future: Civic Values Confronting Market Force Dynamics In A Time Of Counter-Revolution, Zygmunt J.B Plater

Zygmunt J.B. Plater

No abstract provided.

Mitigating The Distributional Impacts Of Climate Change Policy, Tracey M. Roberts

Tracey M Roberts

Under both a cap-and-trade system and a greenhouse gas tax, the government will regulate energy suppliers and distributors, utility companies, and large manufacturers. These parties will bear the statutory incidence of the regulation. However, the financial impacts of regulating greenhouse gas emissions will be borne primarily by consumers. Consumers will bear the economic incidence of the regulation in the form of increased costs of gasoline, electricity, and home heating fuels and in increased consumer prices for all goods manufactured or distributed using fossil fuels. Greenhouse gas regulation will also generate significant revenue. This Article addresses the question of what should …

Much Ado About Pluralities: Pride And Precedent Amidst The Cacophy Of Concurrences, And Re-Percolation After Rapanos, Donald J. Kochan, Melissa M. Berry, Matthew J. Parlow

Donald J. Kochan

Conflicts created by concurrences and pluralities in court decisions create confusion in law and lower court interpretation. Rule of law values require that individuals be able to identify controlling legal principles. That task is complicated when pluralities and concurrences contribute to the vagueness or uncertainty that leaves us wondering what the controlling rule is or attempting to predict what it will evolve to become. The rule of law is at least handicapped when continuity or confidence or confusion infuse our understanding of the applicable rules. This Article uses the recent U.S. Supreme Court decision in Rapanos v. United States to …

Runoff And Reality: Externalities, Economics, And Traceability Issues In Urban Runoff Regulation, Donald J. Kochan

Donald J. Kochan

It has long eluded regulators and private enforcers how to control the imposition of negative externalities. This paper will examine: (1) Whether existing authorities (like the Clean Water Act) are capable of providing regulation of urban runoff; (2) Whether, in light of economic controls, regulation of these activities are necessary; (3) A summary of recent runoff litigation; and (4) What is next; what should be next? Although each of these questions form background, the primary emphasis currently anticipated for this presentation is on traceability, collective action, and free rider problems that motivate regulation in this area. Often runoff is described …