Law Commons^™

Adaptation, Evolution And Symbiosis In Water Law, Sandi Zellmer

Sandi Zellmer

: This article traces the evolution of the laws governing the use of water for consumption, waste disposal, public purposes and environmental protection. It provides a unique integration of water resources law and environmental law, two fields that are otherwise highly fragmented in the United States. Both the historic tensions and the emerging collaborations among federal, state, tribal and private interests in managing water resources are assessed in an effort to illuminate future pathways for conservation and the restoration of degraded waterways. The article begins with colonial America and proceeds through five significant eras in U.S. history: the Gilded Age …

Preventive Economic Development Strategy, Milan Meszaros

Milan Meszaros physicist

In the present paper it is shown that the development of industry based on the monetary economy and the real protection of the environment contradicts to each other, antagonistically. Furthermore, the handling and immanent solution of the contradiction points to the direction of a new development path which is called the Preventive Economic-Development Strategy (PEDS). Finally, this new path means the real unison of the industrialization and protection of the environment, as well as, a fundamental -but not sustainable or other discreditable etc.- transformation of the industrial development and consumer society within the frame of monetary economy.

“Paper Battle On The River Uruguay; The International Dispute Surrounding The Construction Of Pulp Mills On The River Uruguay”, Maria A. Del-Cerro

Maria A del-Cerro

Abstract This Comment explores the legality of the Uruguayan government’s decision to approve the construction of two pulp mill plants on the River Uruguay, and examines the related litigation currently pending before the International Court of Justice, “ICJ”. A review of international watercourse law assists in deciphering the parties’ substantive and procedural obligations under the 1975 Statute of the River Uruguay. The comment argues that Uruguay has fulfilled these obligations, while Argentina has not. The piece recommends that the ICJ resolve the dispute in favor of Uruguay, and adopt a more precise standard for determining when a state has complied …

American Cities, Urban Planning, And Place Based Crime Prevetion, Edward H. Ziegler

Edward H Ziegler

Nearly a generation after Oscar Newman first wrote about the issues of place-based crime prevention and defensible space, cities large and small throughout the world are showing interest in what is now generally known as the field of “Crime Prevention Through Environmental Design.” In the United States and elsewhere throughout the world, preventing crime and reducing the fear of crime continue to be high priorities of citizens and city officials. Place-based crime prevention techniques are increasingly viewed as important urban planning tools to enhance the physical safety of citizens and to protect the public and private economic investment in new …

A Pedestrian Transit Mall On Peachtree? How History, Policy, And Legislation Can Recreate A Proud Town, Collin R. Glidewell

Collin R Glidewell

This paper seeks to provide one solution to Atlanta's auto-oriented development problem. With its history as a streetcar town as inspiration, by shutting down a portion of Peachtree Street to cars and making it a transit-only thoroughfare, Atlanta can form a model for the South of dense retail and residential development. Using Denver's 16th Street Mall as a starting point, this paper looks at the legislative and regulatory hurdles the project would encounter. Hopefully, other cities in the U.S. could explore the viability of a similar project.

Law, Environmental Dynamism, And Reliability, David R. Owen

David R Owen

This article examines conceptual frameworks often used to understand and resolve controversies involving scarce and legally protected natural resources. It proposes that those traditional frameworks, though ingrained in legal structures and conventional expectations, fail to adequately address tensions between resource consumption, environmental protection, and the reliability of resource allocation patterns, and thus can induce the adoption of solutions that prove fragile in contexts of environmental uncertainty and change. It then proposes a different conceptual approach capable of facilitating more lasting solutions. The article illustrates the importance of that conceptual shift by analyzing the "CALFED" controversy, an important environmental controversy in …

Speaking Of Inconvenient Truths -- A History Of The Public Trust Doctrine , James L. Huffman

James L. Huffman

In the nearly four decades since Professor Joe Sax published an article in the Michigan Law Review, there has been a flood of academic writing and court decisions on the public trust doctrine. The vast majority of these articles and judicial opinions give a brief synopsis of the doctrine’s Roman, English and early American roots. In a nutshell, the generally accepted history is that from Justinian’s Institutes through Magna Charta and Bracton, Hale and Blackstone reporting on English law and Chancellor Kent acknowledging the reception of English and Roman law in America, the public has deeply rooted rights in access …

Is International Trade Really Making Developing Countries Dirtier And Developed Countries Richer?, Maria Vittoria C. Carminati Garbino

Maria Vittoria C Carminati Garbino

The current assumption in most of the literature surrounding international trade and environmental law is that these two areas are at odds with each other. This strong belief that development and the environment are a zero-sum game has led some to believe that developing countries in search for prosperity cannot have trade as well as environmental protection. However, emerging studies as well as a review of actual case-law indicates that this is not necessarily true. This Comment illustrates how developing countries have been able to navigate their way between development and sustainability, thus creating cracks in the otherwise seamless assumption …

Punitive Damages And Valuing Harm, Alexandra B. Klass

Alexandra B. Klass

In 2003, the Supreme Court created a presumption that only single-digit ratios of punitive damages to compensatory damages would satisfy substantive due process limits. The exception to this presumption is when the defendant’s misconduct results in only a small amount of compensatory damages or when harm is difficult to value. This Article proposes that while lower courts have properly departed from single-digit ratios where the compensatory damage are small, they have had more difficulty doing so when harm is difficult to value. As a result, lower courts are mechanically applying a single-digit ratio in cases where the Court’s current framework …

Watts My Line? Energy Generation Siting Strategies For Urban Areas, Caleb W. Christopher

Caleb W Christopher

The growth of urban areas has historically been both constrained and encouraged by energy and related infrastructure. Varying degrees of regulation have been sought to respond to compelling public safety needs: more recently, modern environmental law system was derived from public conflicts over siting of an energy plant. While the greater urban density offers reduced per-capita energy consumption rates, contemporary urban revitalization has brought a greater amount of people into closer contact with their energy sources. The unique geography, and increased securities needs, of urban areas demand both reliability and local proximity in energy source production. Urban siting issues will …

The Protection Of The Environment During Armed Conflict, Roman O. Reyhani

Roman O Reyhani

The environment is generally not considered to be a serious consideration during armed conflict. However, international law has provided a number of protections for the environment in times of war. This article addresses the various Conventions and Protocols that shield the environment from destructive weapons and discusses the differences between them. The article also considers the national and international enforcement and implementation measures to uphold those protections.

Alchemy In The Courtroom? The Transmutation Of Public Nuisance Litigation, Richard O. Faulk, John S. Gray

Richard Faulk

This Article continues our study of the public nuisance controversy regarding lead paint. Although lead paint cases are certainly not the only claims where public nuisance principles are being advocated, they are the most conspicuous claims, and they have attracted the most attention from advocates, courts, and commentators. For that reason, we have focused on the lead paint paradigm. Moreover, as will be seen, the allegations asserted in these claims are not unique to lead paint but can be applied generically by ingenious counsel to virtually any product or conduct imaginable. Hence, examining the lead paint controversy provides insight into …

The Seas They Are A Changin': Natural Law & Local Custom As Marine Enforcement Strategies For Pacific Island Nations, Caleb W. Christopher

Caleb W Christopher

Composing the world’s largest uninterrupted continual marine habitat, the biodiversity within the control of Pacific island nations is an unquestioned scientific treasure. The species and natural resources have long served as a central focus for the diverse collection of traditional island cultures, which have continued traditional fishing practices for centuries. Imposed across this rich relationship are both international law (allegedly dictating the terms of who catches what), and the short end of the global economy, in which geography and global governance conspire to leave islanders with stagnant economic growth and dwindling natural resources. While international law has, in theory, provided …

Superfund "Arranger" Liability: Why Ownership Of The Hazardous Substance Matters, Aaron Gershonowitz

Aaron Gershonowitz

Abstract Superfund “Arranger” Liability: Why Ownership of the Hazardous Substances Matters Aaron Gershonowitz The Superfund Law lists four categories of parties who may be held liable for remediation costs at inactive hazardous waste sites: (1) the current owner or operator; (2) the owner or operator at the time of the disposal of hazardous substances; (3) a person who arranged for disposal of hazardous substances “owned or possessed by such person”; and (4) a person who transported waste to the facility. This article will examine the third category, the arranger, and analyze the role played by the qualifier, “owned or possessed …

Another Day Older And Deeper In Debt: How Tax Incentives Encourage Burning Coal And The Consequences For Global Warming, Roberta F. Mann

Roberta F Mann

Coal generates more than half of the electricity in the United States. Civilization has had a love-hate relationship with coal for centuries. Coal usage is both a blessing and a curse. Per unit of energy, coal appears to be the cheapest fuel. But while the nominal price we pay for coal-based energy reflects some of the cost of extracting, processing, transporting, and converting it to energy, it does not reflect the social and environmental costs of coal. Moreover, because coal is subject to tax subsidies, the price does not reflect the entire direct cost of coal. As long as coal …

China's Future Lawyers: Some Differences In Education And Outlook, Patricia Ross Mccubbin, Malinda L. Seymore, Andrea Anne Curcio, Llewellyn Joseph Gibbons

Patricia Ross McCubbin

In this short essay, four U.S. professors who recently served as Fulbright Lecturers in Law in China share important observations about China's future lawyers. The authors discuss key differences in the legal education systems of the two countries, noting that the most significant difference is the lack of Chinese training in the critical legal analysis so familiar to U.S.-trained lawyers. The authors also discuss Chinese law students' limited knowledge of the U.S. legal system and U.S. culture generally. This essay seeks to help members of the U.S. legal community understand the different skill sets and information that Chinese lawyers may …

Enacting Libertarian Property: Oregon's Measure 37 And Its Implications, Michael Blumm

Michael Blumm

In November 2004, for the second time in four years, Oregon voters opted for a radical initiative that is transforming development rights in the state. The full implications of this substantial change in property rights have yet to be fully realized, but it’s clear that the post-2004 land use world in Oregon will be dramatically different than the previous thirty years.

Land development rights in the state were significantly curtailed by a landmark law the Oregon legislature, encouraged by pioneering Governor Tom McCall, enacted in 1973. Implementation of that law survived three separate initiatives that sought to rescind it in …

Countryside Access And Environmental Protection: An American View Of Britain's Right To Roam, Jerry L. Anderson

Jerry L. Anderson

In 2000, Britain enacted a broad "right to roam," which opened up millions of acres of private land to public access. Britain’s resurrection of the right to roam should cause other countries, such as the United States, to reconsider the values that support greater public access to the countryside. Given differences in our history, land ownership, and culture, not to mention our legal system, the United States is unlikely to emulate the CRWA. But the idea that the freedom to roam has trumped the right to exclude in Britain may encourage Americans to accommodate the public’s need for access in …

Insect Conservation Under The Endangered Species Act, Ezequiel Lugo

Ezequiel Lugo

While the rate of extinction is the same for insects and other animals, insects are underrepresented in the Fish and Wildlife Service's list of threatened or endangered species. Insect conservationists have argued that the Endangered Species Act and the Fish and Wildlife Service are biased against insects, despite the importance of insects in our lives. The reality, however, is that there is only minimal bias inherent in the provisions of the Endangered Species Act or in regulations promulgated by the Fish and Wildlife Service. The main cause of the low number of insect species listed under the Endangered Species Act …

Federalism And The Tug Of War Within: Seeking Checks And Balance In The Interjurisdictional Gray Area, Erin Ryan

Erin Ryan

Federalism and the Tug of War Within explores tensions that arise among the underlying values of federalism when state or federal actors regulate within the “interjurisdictional gray area” that implicates both local and national concerns. Drawing examples from the failed response to Hurricane Katrina and other interjurisdictional problems to illustrate this conflict, the Article demonstrates how the trajectory set by the New Federalism’s “strict-separationist” model of dual sovereignty inhibits effective governance in these contexts. In addition to the anti-tyranny, pro-accountability, and localism-protective values of federalism, the Article identifies a problem-solving value inherent in the capacity requirement of American federalism’s subsidiarity …

Environmental Law In A Climate Change Age, David R. Hodas

David R. Hodas

No abstract provided.

Imagining The Unimaginable: Reducing Greenhouse Gas Emissions, David R. Hodas

David R. Hodas

No abstract provided.

Stabilizing And Then Reducing U.S. Energy Consumption: Legal And Policy Tools For Efficiency And Conservation, John Dernbach

John C. Dernbach

Rising global demand for energy, high energy prices, climate change, and the threat of terrorism all point to the need for greater energy efficiency and conservation in the United States. While technological innovation is plainly needed, our laws and institutional arrangements must also play an important role. The United States has scores of legal and policy tools from which to choose to improve energy efficiency and curb energy consumption. This article evaluates a handful of these tools: transit-oriented development; fuel taxation; real-time pricing for electricity use; public benefit funds; improved efficiency in existing residential and commercial buildings; and expanded use …

China's Future Lawyers: Some Differences In Education And Outlook, Patricia Ross Mccubbin, Malinda L. Seymore, Andrea Anne Curcio, Llewellyn Joseph Gibbons

Andrea A. Curcio

In this short essay, four U.S. professors who recently served as Fulbright Lecturers in Law in China share important observations about China's future lawyers. The authors discuss key differences in the legal education systems of the two countries, noting that the most significant difference is the lack of Chinese training in the critical legal analysis so familiar to U.S.-trained lawyers. The authors also discuss Chinese law students' limited knowledge of the U.S. legal system and U.S. culture generally. This essay seeks to help members of the U.S. legal community understand the different skill sets and information that Chinese lawyers may …

The Great Lakes As An Environmental Heritage Of Humankind: An International Law Perspective, Dan Tarlock

Dan Tarlock

No abstract provided.

Are Shared Benefits Of International Waters An Equitable Apportionment? (With P. Wouters), Dan Tarlock

Dan Tarlock

No abstract provided.

Genetically Modified Organisms And Justice: The International Environmental Justice Implications Of Biotechnology, Carmen G. Gonzalez

Carmen G. Gonzalez

In September 2006, a WTO dispute settlement panel issued its long-awaited decision in favor of the United States in the dispute between the U.S. and the European Union over genetically modified organisms (GMOs). The ruling was based on narrow procedural grounds, and did not resolve the controversy over the safety of GMOs, over the right of countries to regulate GMOs more stringently than conventional products, or over the consistency of the EU's GMO regulatory regime with WTO requirements. The debate over GMOs continues unabated. Unfortunately, the high profile dispute between the U.S. and the EU has eclipsed the important debate …

Overcoming The Behavioral Impetus For Greater U.S. Energy Consumption, John C. Dernbach

John C. Dernbach

No abstract provided.

China's Future Lawyers: Some Differences In Education And Outlook, Patricia Ross Mccubbin, Malinda L. Seymore, Andrea Anne Curcio, Llewellyn Joseph Gibbons

Malinda L. Seymore

In this short essay, four U.S. professors who recently served as Fulbright Lecturers in Law in China share important observations about China's future lawyers. The authors discuss key differences in the legal education systems of the two countries, noting that the most significant difference is the lack of Chinese training in the critical legal analysis so familiar to U.S.-trained lawyers. The authors also discuss Chinese law students' limited knowledge of the U.S. legal system and U.S. culture generally. This essay seeks to help members of the U.S. legal community understand the different skill sets and information that Chinese lawyers may …