Law Commons^™

Jazz Improvisation And The Law: Constrained Choice, Sequence, And Strategic Movement Within Rules, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

This Article argues that a richer understanding of the nature of law is possible through comparative, analogical examination of legal work and the art of jazz improvisation. This exploration illuminates a middle ground between rule of law aspirations emphasizing stability and determinate meanings and contrasting claims that the untenable alternative is pervasive discretionary or politicized law. In both the law and jazz improvisation settings, the work involves constraining rules, others’ unpredictable actions, and strategic choosing with attention to where a collective creation is going. One expects change and creativity in improvisation, but the many analogous characteristics of law illuminate why …

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) …

Vw And Gm Scandals Show Why Regulation Matters, Robert R.M. Verchick, Rena Steinzor

Robert R.M. Verchick

Conservatives love to belittle federal regulations — especially the ones designed to keep our air clean, our water drinkable, our workplaces safe, and our financial markets stable. Conservatives, of course, don’t oppose any of those things. They just think unregulated markets, left on their own, will keep bad things from happening. Customers will see when a dishonest company is putting Americans at risk; and when they do, they will unleash their fury and incinerate it. Unbridled capitalism is the world’s largest self-cleaning oven. Last week’s news from the automotive industry should lay that argument to rest.

Antimonopoly In Public Land Law, Michael Blumm, Kara Tebeau

Michael Blumm

Public land law is often thought to be divided into historical eras like the Disposition Era, the Reservation Era, and the Modern Era. We think an overarching theme throughout all eras is antimonopoly. Since the Founding, and continuing for over two-and-a-quarter centuries into the 21^st century, antimonopoly policy has permeated public land law. In this article we show the persistence of antimonopoly sentiment throughout the public land history, from the Confederation Congress to Jacksonian America to the Progressive Conservation Era and into the modern era.

Antimonopoly policy led to widespread ownership of American land, perhaps America’s chief distinction from …

Insuring Floods: The Most Common And Devastating Natural Catastrophes In America, Christopher French

Journal Articles

Flooding is the most common natural catastrophe Americans face, accounting for 90% of all damage caused by natural catastrophes. Hurricanes Katrina and Sandy, for example, collectively caused over $160 billion in damage, but only approximately 10% of the Hurricane Katrina victims and 50% of the Hurricane Sandy victims had insurance to cover their flood losses. Consequently, both their homes and lives were left in ruins in the wake of the storms. Nationwide, only approximately 7% of homeowners have insurance that covers flood losses even though the risk of flooding is only increasing as coastal areas continue to be developed and …

Insuring Floods: The Most Common And Devastating Natural Catastrophies In America, Christopher French

Christopher C. French

Agencies, Courts, And The Limits Of Balancing, Daniel A. Farber

Daniel A Farber

Courts have struggled in several very different contexts to determine when a decision maker can consider costs that are not explicitly addressed in the governing statute. This issue arises when agencies decide whether to conduct a rulemaking or what rule to issue after a rulemaking. It also arises when courts decide whether to enjoin a violation of a statute or whether to vacate an administrative rule rather than simply remanding. Judicial opinions point in different directions and often ignore each other.

This Article contends that the same principles should govern judicial and agency discretion to consider costs across all these …

Protecting Marine Biodiversity In Latin America Through Area-Based Fisheries Regulation, Xiao Recio-Blanco

Xiao Recio-Blanco

Governments all around the world have addressed the challenge of marine resources management enacting laws and enforcing public policies. To date, most of these initiatives have failed. In Latin America, sophisticated environmental protection statutes are already in place. Unfortunately, these statutes are largely overlooked by sea users and government officials. Lack of compliance has become the most significant hurdle to the sustainable use of Latin America’s marine resources.

Recently, governments and Non-Governmental Organizations in Latin America have showed increased interest in Marine Spatial Planning (MSP). MSP is a process that analyzes the spatial distribution of human activities at sea. The …

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 …

Transnational Area-Based Ocean Management: Finding Avenues For Regulatory Harmonization, Xiao Recio-Blanco

Xiao Recio-Blanco

In the last few decades, governments have regulated human activities at sea and their environmental impact through piecemeal, use-by-use prescriptive regulation. These domestic laws have been unable to solve basic problems such as overfishing or marine habitat loss.

Some ocean management experts have argued that managing areas of the sea in order to maximize one or a set of objectives might be more effective than the non-spatial approach. Implementing a comprehensive system of area-based management requires planning and zoning. The process of marine spatial planning (MSP) involves assessing ocean resources as well as current and future uses; identifying compatible and …

Deployment Of Geoengineering By The Private And Public Sector: Can The Risks Of Geoengineering Ever Be Effectively Regulated?, Daniela E. Lai

Daniela E Lai

Geoengineering has been described as any large-scale environmental manipulation designed with the purpose of mitigating the effects of climate change without decreasing greenhouse gas emissions (GHGs). Currently there are no specific rules regulating geoengineering activities particularly if geoengineering is deployed in areas beyond national jurisdiction. This article argues that, in order to mitigate the risks of geoengineering, there needs to be effective regulation of its deployment both in international and domestic law. The risks of geoengineering can only be effectively regulated if there is international cooperation between all levels of governments and private individuals involved in the research and development …

Revisiting Curd V. Mosaic Fertilizer, Llc. A Perversion Of Private Standing Under Section 376.313 Of Florida’S Pollution Discharge Prevention And Recovery Act, Levi L. Wilkes

Levi L Wilkes

No abstract provided.

The Presentment Clause Meets The Suspension Power: The Affordable Care Act’S Long And Winding Road To Implementation, Mitchell Widener

Mitchell Widener

The presentment clause MEETs the Suspension Power: The Affordable Care Act’s Long and Winding Road to Implementation

Mitchell J. Widener

Abstract

To enact a law, the Presentment Clause of the Constitution mandates that both Houses of Congress present a bill to the President who either signs it into law or vetoes it. The Founders included this provision to prevent presidents from emulating King James II, who would routinely suspend Parliament’s laws to favor political constituents. Additionally, the Presentment Clause served to enhance the separation-of-powers principle implied in the Constitution.

Within the past year, President Obama has suspended multiple portions of …

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.

The Birth, Death, And Afterlife Of The Wild Lands Policy: The Evolution Of The Bureau Of Land Management’S Authority To Protect Wilderness Values, Olivia Brumfield

Michael Blumm

Since the enactment of the Federal Land Policy and Management Act (FLPMA) in 1976, the Bureau of Land Management (BLM) has had a troubled relationship with wild lands, the nation’s last remaining places with wilderness characteristics. Although for twenty-five years BLM recognized wilderness values as a resource it must balance and could protect consistent with the agency’s multiple use mandate, in 2003 BLM largely disclaimed that interpretation, potentially imperiling future protection of wild lands that were not designated as wilderness or wilderness study areas. Since then, the agency has made incremental – but potentially powerful – steps toward reclaiming a …

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 …

Science And Compliance In The Arctic: A Constructivist Approach To The Un Commission On The Limits Of The Continental Shelf, Sari M. Graben, Peter Harrison

Sari M Graben

The United Nations Commission on the Limits of the Continental Shelf is expected to play an essential role in delineating the rights of the Arctic states to sea bed resources in the Arctic Ocean. Positivist theories of international law generally source Arctic state compliance to the binding effect of Article 76 of the UN Convention on the Law of the Sea. However, positivist explanations fail to answer why the Arctic states, which are authorized to establish their own limits, would accept the sovereignty costs associated with the Commission’s legal and scientific interpretations. In order to better understand how the Commission …

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 …

The Reality Of Business And Governmental Decision-Making In The Context Of Sustainable Development, David Barnhizer

David Barnhizer

It is absolutely rational for economic actors and decision-makers to seek to operate in their own self-interest. The challenge for anyone who wishes to influence or alter the process lies in knowing where that self-interest lies and changing the nature of the self-interest if that is required or possible. That is a far greater challenge than many understand because regardless of what we might like to do in our personal lives, it is the institution within which we work that dictates how we think and what we value in our service to that institution. Given the short time frame within …

Going-Going-Green: Strategies Fostering Sustainable New Federal Buildings, Patrick E. Tolan Jr.

Patrick E. Tolan Jr.

Green building, also known as sustainable building or high performance building, has exploded in popularity over the past several years as construction experience and cost-benefit studies have shown that owners of green buildings derive financial as well as environmental benefits. By smartly designing the building to maximize advantages at the onset, these newer buildings are more friendly to workers, more flexible for future growth, better integrate environmental and comfort factors using a whole building design philosophy, and help conserve energy, water, and other resources. As the world’s largest owner and operator of buildings and the nation’s largest energy user, the …

Planetarian Identity Formation And The Relocalization Of Environmental Law, Sarah Krakoff

Sarah Krakoff

Local food, local work, local energy production—all are hallmarks of a resurgence of localism throughout contemporary environmental thought and action. The renaissance of localism might be seen as a retreat from the world’s global environmental problems. This paper maintains, however, that some forms of localism are actually expressions, and appropriate ones, of a planetary environmental consciousness. The paper’s centerpiece is an in-depth evaluation of local climate action initiatives, including interviews with participants as well as other data and observations about their ethics, attitudes, behaviors, and motivations. The values and identities being forged in these initiatives form the basis for timely …

International Law's Lessons For The Law Of The Lakes, Joseph W. Dellapenna

Working Paper Series

The eight Governors of the Great Lakes States signed a proposed new compact for the Great Lakes and St. Lawrence basin on December 13, 2005, and they joined with the Premiers of Ontario and Québec in a parallel agreement on the same topic on the same day. Neither document is legally binding—the proposed new compact because it has not yet been ratified by any state nor consented to by Congress; the parallel agreement because it is not intended to be legally binding. Both documents are designed to preclude the export of water from the Great Lakes-St. Lawrence basin apart from …

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.

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 is threatened …

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 the …

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 shift …

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 a few …

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

ExpressO

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

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

ExpressO

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 …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.