Law Commons^™

The Legal Profession’S Critical Role In Systems-Level Bioenergy Decision-Making, Jody M. Endres

Jody M. Endres

Mounting resource scarcity confronts policymakers to make decisions based on predictions of complex system behavior under conditions of great uncertainty. Nowhere is this more evident than in bioenergy policy, which relies heavily on modeling to determine biofuels’ effects on complex climate, food and natural systems. This article provides a primer on models’ inner workings to facilitate engagement by the legal field so critical in building and applying models, and remedying them when they fail. Any conceptual model cannot predict future reality with accuracy absent accounting for regulatory and litigatory scenarios that only the legal discipline can assess fully. Administrative law …

From Pyramids To Stories: Cognitive Reconstruction Of Local Government Authority, John Martinez

John Martinez

This article describes a cognitive science approach to law, uses it to critically evaluate conventional "pyramid" legal analysis of local government authority, and suggests stories as alternative models for defining such authority. The article suggests that stories better reveal what is at stake in regard to local government authority and thus helps us to arrive at better solutions. The article illustrates the storytelling analytical approach in three situations: a local government's condemnation of private property for resale to a private developer, the delegation of land use control authority to neighborhood groups, and local government attempts to zone out nontraditional families.

From Pyramids To Stories: Cognitive Reconstruction Of Local Government Authority, John Martinez

John Martinez

This article describes a cognitive science approach to law, uses it to critically evaluate conventional "pyramid" legal analysis of local government authority, and suggests stories as alternative models for defining such authority. The article suggests that stories better reveal what is at stake in regard to local government authority and thus helps us to arrive at better solutions. The article illustrates the storytelling analytical approach in three situations: a local government's condemnation of private property for resale to a private developer, the delegation of land use control authority to neighborhood groups, and local government attempts to zone out nontraditional families.

Raising Cane: Sugar Sugarcane Ethanol’S Economic And Environmental Effects On The United States, Jonathan M. Specht

Jonathan M Specht

In the coming decades the United States will need to change its energy policy to face two enormous challenges: adjusting to peak oil (declining petroleum production output), and halting the advance of climate change. Liquid biofuels — made from renewable, biologically-based sources of energy, rather than finite and climate change-inducing fossil fuels — will be an important component of any strategy to deal with the twin challenges of peak oil and climate change. While the United States has encouraged the production of biofuels in recent decades, the domestic ethanol industry, which is almost entirely corn-based, has a number of major …

The Ohio Supreme Court’S Perverse Stance On Development Impact Fees And What To Do About It, Alan C. Weinstein

Alan C Weinstein

Ohio is among the twenty-two states that have no enabling legislation for development impact fees. But in a 2000 ruling, Homebuilders Association of Dayton and the Miami Valley, et. al. v. City of Beavercreek, a divided Ohio Supreme Court ruled that municipalities could lawfully enact impact fees under their police and “home rule” powers, provided that the fees could pass constitutional muster under a “dual rational nexus test.” On May 31, 2012, however, the Court ruled in Drees Company, et. al. v. Hamilton Township, that a development impact fee enacted by an Ohio township with “limited home rule” powers was …

The Executive Right To Lease Mineral Real Property In Texas Before And After Lesley V. Veterans Land Board, Chris S. Kulander Ph.D.

Chris S Kulander Ph.D.

The executive right to lease have been recognized by Texas courts as the exclusive right to execute oil and gas leases and is considered a real property right. Where the executive right is owned by one party and the other components of the mineral estate are owned by another, the first party owes the second a duty of “utmost good faith and fair dealing.”

The case of Betty Yvon Lesley, et al. v. Veterans Land Board of the State of Texas, et al. presented to the Texas Supreme Court a case in which the exclusive nature of leasing or development …

Rationalizing Risks To Cultural Loss In Resource Development, Sari M. Graben

Sari M Graben

Abstract In this article, I consider the implications of culture for valuation of cultural loss in cost benefit analysis. I argue that rational choice models have a difficult time quantifying cultural values because they have yet to grapple with the way experts tasked with cost benefit analysis translate knowledge about cultural worldviews for the purposes of comparison. This translation can alter the valuation of the risk so as to undermine the representation of a loss, rather than identify it. However, instead of rejecting the consideration of cultural loss in cost-benefit analysis outright, I build on dialogical approaches to governance that …

Stewardship And Dominium: How Disparate Conceptions Of Ownership Influence Possession Doctrines, Martin Hirschprung

martin hirschprung

The law is ambiguous regarding the level and extent of possession necessary to effect ownership. It can be argued that one’s conception of the nature of ownership influences this standard of possession. I further argue that the application of the concept of stewardship to questions of possession will aid in resolving the disputes between museums and indigenous groups regarding cultural artifacts. In order to demonstrate the relationship between one’s conception of ownership and its attendant standard of possession, it is useful to contrast different legal definitions of ownership, particularly the Roman concept of dominium, with a religious model of stewardship …

A Catch 22: The Price To Pay For Property Rights Under The Clean Water Act And Administrative Compliance Orders, Lindsey F. Brewer

Lindsey F. Brewer

Environmental conservationist groups often argue that private-property owners are alert to wetland designations -- especially in their own backyard -- and as a result no procedural due process is necessary for the EPA to issue an administrative compliance order (ACO). But as a practical matter it is very difficult to make a wetland determination, and individual private-property owners are building residential homes on potential wetlands without knowledge. The result is forced and costly compliance with the EPA. The environmental concerns are valid, but property and liberty interests are protected by the Constitution. How can the Court strike a balance between …

What’S Blowin’ In The Wind? The Use Of Coal Ash In Landfills And The Power Of Local Governments To Stop It, Charlie Schmidt

Charlie Schmidt

This paper addresses the use of Coal Combustion By-product (AKA coal ash) as approved "fill" product for landfills. Specifically, it addresses the overlap of Federal, State, and Municipal land use laws as these apply to landfills abutting residential areas. Coal Ash has been approved by the Virginia Department of Environmental Quality (DEQ) to use as fill material in landfills. Recently, the Board of Zoning Appeals (BZA) for the County of Henrico, VA, just east of Richmond, VA, rejected a zoning permit to allow East End Resource Recovery (EERR) to import, collect, and store coal ash on site for use as …

The Waters Are Rising! Why Isn’T My Tax Basis Sinking?: Why Coastal Land Should Be A Depreciable Asset In Light Of Global Warming And The Rise In Sea Level, Jason P. Oppenheim

Jason P Oppenheim

Depreciation deductions are the Internal Revenue Code’s method of allowing taxpayers to take deductions on long-term investments. Unlike normal deductions, depreciation requires the taxpayer to apportion the expense over the life of the asset. While most assets used for the production of income may be depreciated, the Internal Revenue Service and courts have never allowed land to be depreciated. The treatment of land as a non-depreciable asset is deeply rooted in the idea that it does not have a useful life—it lasts forever. However, the rate of global warming has increased rapidly over the past fifty years and is expected …

The Impact Xat, Paul Boudreaux

Paul Boudreaux

At a time when the economy and the housing market rise and fall together, the phenomenon of impact fees complicates the construction of new housing across the nation. Although justified as a means of forcing new development to “pay its way” for the costs of government infrastructure necessitated by the new housing, impact fees typically are imposed in a way that makes them, in effect, a dubious population tax. Indeed, the typical fee does little to discourage costly suburban sprawl. This essay – using economic lessons from policies that discourage usage of scarce resources with light bulbs, bathrooms, and buildings …

The Impact Xat, Paul Boudreaux

Paul Boudreaux

At a time when the economy and the housing market rise and fall together, the phenomenon of impact fees complicates the construction of new housing across the nation. Although justified as a means of forcing new development to “pay its way” for the costs of government infrastructure necessitated by the new housing, impact fees typically are imposed in a way that makes them, in effect, a dubious population tax. Indeed, the typical fee does little to discourage costly suburban sprawl. This essay – using economic lessons from policies that discourage usage of scarce resources with light bulbs, bathrooms, and buildings …

Mapping, Modeling, And The Fragmentation Of Environmental Law, David R. Owen

David R Owen

In the past forty years, environmental researchers have achieved major advances in electronic mapping and spatially explicit, computer-based simulation modeling. Those advances have turned quantitative spatial analysis—that is, quantitative analysis of data coded to specific geographic locations—into one of the primary modes of environmental research. Researchers now routinely use spatial analysis to explore environmental trends, diagnose problems, discover causal relationships, predict possible futures, and test policy options. At a more fundamental level, these technologies and an associated field of theory are transforming how researchers conceptualize environmental systems. Advances in spatial analysis have had modest impacts upon the practice of environmental …

Unjustifiable Expectations: Laying To Rest The Ghosts Of Allotment-Era Settlers, Ann E. Tweedy

Ann E. Tweedy

When the Supreme Court decides whether a tribe has jurisdiction over non-members on its reservation or addresses the related issue of reservation diminishment, it often refers implicitly or explicitly to the non-Indians’ justifiable expectations. The non-Indians’ assumed expectations arise from the fact that, when Congress opened up reservations to non-Indians during the allotment era, its assumption, and presumably that of non-Indians who purchased lands on reservations during that period, was that the reservations would disappear due to the federal government’s assimilationist policies, along with the tribes who governed them. To refute the idea that such non-Indian expectations were justifiable, I …

Does The Federal Government Own The Pore Space Under Private Lands In The West? Implications Of The Stock-Raising Homestead Act Of 1916 For Geologic Storage Of Carbon Dioxide, Kevin L. Doran, Angela Cifor

Kevin L Doran

This paper establishes that pursuant to the mineral reservation contained in the Stock-Raising Homestead Act of 1916 (SRHA), as well as U.S. Supreme Court jurisprudence that has further defined the scope of that reservation, the federal government likely holds title to some 70 million acres of subsurface pore space located under private land in the West. In addressing the issue of pore space ownership, scholars and regulators have focused on the question of who owns the pore space when the mineral estate has been severed from the surface estate. This approach, however, overlooks the critical fact that for the approximately …

Ten Years Of The Aarhus Convention: How Procedural Democracy Is Paving The Way For Substantive Change In National And International Environmental Law, Marianne Dellinger

Myanna Dellinger

Arab Spring. Occupy Wall Street. Protests against austerity measures in Europe. Around the world, people are dissatisfied with traditional top-down style governance. The call for change sounds especially loud and clear in the environmental arena where legislative and law enforcement status quo imperils the future of our natural surroundings.

This article adds new value to international environmental and democratic discourse by being the first major work to examine the first ten years of case law under the UNECE Aarhus Convention, a groundbreaking multilateral environmental agreement that promotes public participation in government environmental decision-making and -enforcement through procedural requirements. The objective …

Ten Years Of The Aarhus Convention: How Procedural Democracy Is Paving The Way For Substantive Change In National And International Environmental Law, Marianne Dellinger

Myanna Dellinger

Arab Spring. Occupy Wall Street. Protests against austerity measures in Europe. Around the world, people are dissatisfied with traditional top-down style governance. The call for change sounds especially loud and clear in the environmental arena where legislative and law enforcement status quo imperils the future of our natural surroundings.

This article adds new value to international environmental and democratic discourse by being the first major work to examine the first ten years of case law under the UNECE Aarhus Convention, a groundbreaking multilateral environmental agreement that promotes public participation in government environmental decision-making and -enforcement through procedural requirements. The objective …

Ten Years Of The Aarhus Convention: How Procedural Democracy Is Paving The Way For Substantive Change In National And International Environmental Law, Marianne Dellinger

Myanna Dellinger

Arab Spring. Occupy Wall Street. Protests against austerity measures in Europe. Around the world, people are dissatisfied with traditional top-down style governance. The call for change sounds especially loud and clear in the environmental arena where legislative and law enforcement status quo imperils the future of our natural surroundings.

This article adds new value to international environmental and democratic discourse by being the first major work to examine the first ten years of case law under the UNECE Aarhus Convention, a groundbreaking multilateral environmental agreement that promotes public participation in government environmental decision-making and -enforcement through procedural requirements. The objective …

Ten Years Of The Aarhus Convention: How Procedural Democracy Is Paving The Way For Substantive Change In National And International Environmental Law, Marianne Dellinger

Myanna Dellinger

Arab Spring. Occupy Wall Street. Protests against austerity measures in Europe. Around the world, people are dissatisfied with traditional top-down style governance. The call for change sounds especially loud and clear in the environmental arena where legislative and law enforcement status quo imperils the future of our natural surroundings.

This article adds new value to international environmental and democratic discourse by being the first major work to examine the first ten years of case law under the UNECE Aarhus Convention, a groundbreaking multilateral environmental agreement that promotes public participation in government environmental decision-making and -enforcement through procedural requirements. The objective …

Ten Years Of The Aarhus Convention: How Procedural Democracy Is Paving The Way For Substantive Change In National And International Environmental Law, Marianne Dellinger

Myanna Dellinger

Arab Spring. Occupy Wall Street. Protests against austerity measures in Europe. Around the world, people are dissatisfied with traditional top-down style governance. The call for change sounds especially loud and clear in the environmental arena where legislative and law enforcement status quo imperils the future of our natural surroundings.

This article examines the first ten years of case law under the UNECE Aarhus Convention, a groundbreaking multilateral environmental agreement that promotes public participation in government environmental decision-making and -enforcement through procedural requirements. The objective of the article is to verify whether such requirements are mere “toothless” procedural devices or if …

Ten Years Of The Aarhus Convention: How Procedural Democracy Is Paving The Way For Substantive Change In National And International Environmental Law, Marianne Dellinger

Myanna Dellinger

Arab Spring. Occupy Wall Street. Protests against austerity measures in Europe. Around the world, people are dissatisfied with traditional top-down style governance. The call for change sounds especially loud and clear in the environmental arena where legislative and law enforcement status quo imperils the future of our natural surroundings.

This article examines the first ten years of case law under the UNECE Aarhus Convention, a groundbreaking multilateral environmental agreement that promotes public participation in government environmental decision-making and -enforcement through procedural requirements. The objective of the article is to verify whether such requirements are mere “toothless” procedural devices or if …