Law Commons^™

Operationalizing Free, Prior, And Informed Consent, Carla F. Fredericks

Publications

The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) has acknowledged varying ways in which international actors can protect, respect and remedy the rights of indigenous peoples. One of these methods is the concept of free, prior and informed consent (FPIC) as described in Articles 10, 19, 28 and 29. There has been much debate in the international community over the legal status of the UNDRIP, and member states have done little to implement it. In applied contexts, many entities like extractive industries and conservation groups are aware of risks inherent in not soliciting FPIC and have endeavored to …

Bypassing Federalism And The Administrative Law Of Negawatts, Sharon B. Jacobs

Publications

Presidential unilateralism has become a defining feature of the executive branch. But a related and equally important phenomenon has been largely ignored: federal agency efforts to circumvent statutory federalism boundaries. This move, which the Article calls "bypassing federalism, " involves using existing jurisdictional authority to work defacto, rather than dejure, reallocations of power. The Article explores agency bypassing through the lens of the Federal Energy Regulatory Commission's ("FERC's") promotion of demand response in electricity markets. Demand response refers to customer sales of negative watts, or "negawatts," back to the electrical grid. FERC, eager to promote demand-side management programs but stymied …

Slides: Indian Water Rights, Robert T. Anderson

Western Water Law, Policy and Management: Ripples, Currents, and New Channels for Inquiry (Martz Summer Conference, June 3-5)

Presenter: Robert T. Anderson, Native American Law Center, University of Washington Law School

19 slides

Jurisdiction's Noble Lie, Frederic M. Bloom

Publications

This Article makes sense of a lie. It shows how legal jurisdiction depends on a falsehood--and then explains why it would.

To make this novel argument, this Article starts where jurisdiction does. It recounts jurisdiction's foundations--its tests and motives, its histories and rules. It then seeks out jurisdictional reality, critically examining a side of jurisdiction we too often overlook. Legal jurisdiction may portray itself as fixed and unyielding, as natural as the force of gravity, and as stable as the firmest ground. But jurisdiction is in fact something different. It is a malleable legal invention that bears a false rigid …

The Accounting: Habeas Corpus And Enemy Combatants, Emily Calhoun

Publications

The judiciary should impose a heavy burden of justification on the executive when a habeas petitioner challenges the accuracy of facts on which an enemy combatant designation rests. A heavy burden of justification will ensure that the essential institutional purposes of the writ--and legitimate, separated-powers government--are preserved, even during times of national exigency. The institutional purposes of the writ argue for robust judicial review rather than deference to the executive. Moreover, the procedural flexibility traditionally associated with the writ gives the judiciary the tools to ensure that a heavy burden of justification can be imposed.

The Early History Of The Colorado Court Of Appeals, Robert M. Linz, Claire E. Munger

Publications

No abstract provided.

Federal Common Law, Cooperative Federalism, And The Enforcement Of The Telecom Act, Philip J. Weiser

Publications

Congress increasingly has enacted cooperative federalism programs to achieve complex regulatory policy objectives. Such programs combine the authority of federal regulators, state regulators, and federal courts in creative and often pathmarking ways, but the failure of these actors to appreciate fully their respective roles threatens to undermine cooperative federalism's effectiveness. In this Article, Professor Philip Weiser develops a coherent vision of how federal courts should enforce cooperative federalism regulatory programs. In particular, he relates the rise and purpose of cooperative federalism to the federal courts' increased reluctance to make federal common law under the Erie doctrine and their greater deference …

Should Unclos Or Gatt/Wto Decide Trade And Environment Disputes?, Lakshman D. Guruswamy

Publications

No abstract provided.

Conquering The Cultural Frontier: The New Subjectivism Of The Supreme Court In Indian Law, David H. Getches

Publications

For a century and a half, the Supreme Court was faithful to a set of foundation principles respecting Indian tribal sovereignty. Though the United States can abrogate tribal powers and rights, it can only do so by legislation. Accordingly, the Court has protected reservations as enclaves for Indian self-government, preventing states from enforcing their laws and taxes, and holding that even federal laws could not be applied to Indians without congressional permission. Recently, however, the Court has assumed the job it formerly conceded to Congress, considering and weighing cases to reach results comporting with the Justices' subjective notions of what …

Toward An Auction Market For Corporate Control And The Demise Of The Business Judgment Rule, Mark J. Loewenstein

Publications

No abstract provided.

The Clean Water Act, Water Quality, And Water Use, Bruce D. Ray

Water as a Public Resource: Emerging Rights and Obligations (Summer Conference, June 1-3)

56 pages.

Includes unsigned annotations by David Getches.

Natural Resources Damage Litigation [Appendix], Michael Donovan

Getting a Handle on Hazardous Waste Control (Summer Conference, June 9-10)

80 pages (includes illustrations).

Contains references and historical notes.

Appendix contains 3 attachments:

1) Comprehensive Environmental Response, Compensation and Liability Act, ("CERCLA"), 42 U.S.C. 9601 et seq. (1980)

2) National Contingency Plan, 40 C.F.R. Part 440, 50 Fed. Reg. No. 224, Part III (November 20, 1985)

3) Natural Resource Damage Assessments - Proposed Rule, Department of Interior, 43 C.F.R. Part 11, 50 Fed. Reg. No. 245, Part IV (December 20, 1985)

An Evaluation Of Rcra, David J. Lennett

Getting a Handle on Hazardous Waste Control (Summer Conference, June 9-10)

68 pages (includes 1 illustration).

Contains 1 page of references.

Contains 5 attachments.

Agenda: Getting A Handle On Hazardous Waste Control, University Of Colorado Boulder. Natural Resources Law Center

Getting a Handle on Hazardous Waste Control (Summer Conference, June 9-10)

The conference chairman was University of Colorado School of Law professor Lawrence J. MacDonnell.

During the past ten years Congress has made the regulation of hazardous waste a priority. This conference focuses on the Resource Conservation and Recovery Act, as amended in 1984, and the Comprehensive Environmental Response, Compensation and Liability Act.

This conference attracted about 100 registrants from 16 states plus the District of Columbia. John G. Welles, Regional Director for EPA Region 8, presented a luncheon address.

Can A Tribal Court Be Enjoined From Exercising Jurisdiction Over Nonmembers Of The Tribe?, Richard B. Collins

Publications

No abstract provided.

Ferc, Purpa And The Federal Power Act, Lawrence J. Wolfe

The Federal Impact on State Water Rights (Summer Conference, June 11-13)

62 pages.

Contains references.

Cross-Jurisdictional Conflicts: An Analysis Of Legitimate State Interests On Federal And Indian Lands, Charles F. Wilkinson

Publications

No abstract provided.

The Jurisdictional Scheme On The Public Lands, David E. Engdahl

Federal Lands, Laws and Policies and the Development of Natural Resources: A Short Course (Summer Conference, July 28-August 1)

7 pages.