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Full-Text Articles in Law
Mississippi River Stories: Lessons From A Century Of Unnatural Disasters, Sandra B. Zellmer, Christine A. Klein
Mississippi River Stories: Lessons From A Century Of Unnatural Disasters, Sandra B. Zellmer, Christine A. Klein
Faculty Law Review Articles
In the wake of Hurricane Katrina, the nation pondered how a relatively weak Category 3 storm could have destroyed an entire region. Few appreciated the extent to which a flawed federal water development policy transformed this apparently natural disaster into a "manmade" disaster; fewer still appreciated how the disaster was the predictable, and indeed predicted, sequel to almost a century of similar disasters. This Article focuses upon three such stories: the Great Flood of 1927, the Midwest Flood of 1993, and Hurricanes Katrina and Rita of 2005. Taken together, the stories reveal important lessons, including the inadequacy of engineered flood …
A Tale Of Two Imperiled Rivers: Reflections From A Post-Katrina World, Sandra B. Zellmer
A Tale Of Two Imperiled Rivers: Reflections From A Post-Katrina World, Sandra B. Zellmer
Faculty Law Review Articles
Last year, hundreds of thousands of residents of the lower Mississippi River basin were forced to flee Hurricane Katrina.2 Having scattered like leaves before the gale-force winds that pounded the Gulf Coast, many are still displaced by the wreckage caused by storm surges and floodwaters.3 Those who have returned continue to experience the adverse effects of a shattered infrastructure as they attempt to rebuild their homes and their lives. The environmental calamity is profound: drinking water sources polluted by destroyed septic systems and leaking storage tanks; contaminated sediments from the bayous to the residents' backyards; decimated marshes and oyster beds-in …
Is Water Property?, Sandra B. Zellmer, Jessica Harder
Is Water Property?, Sandra B. Zellmer, Jessica Harder
Faculty Law Review Articles
One of the most controversial issues in natural resources law is whether interests in water are property. In the western United States, water is typically viewed by appropriators as a form of private property, while in the East it is not. In either case, the law is surprisingly unsettled, notwithstanding the important consequences that follow, particularly under constitutional takings jurisprudence. Treating water as property has significant implications for investment, conservation and environmental protection as well. Establishing secure property rights can foster stewardship and wise investment of labor and capital. By the same token, the absence of property ownership can result …
The Founders' Hermeneutic: The Real Original Understanding Of Original Intent, Robert G. Natelson
The Founders' Hermeneutic: The Real Original Understanding Of Original Intent, Robert G. Natelson
Faculty Law Review Articles
This article re-examines the controversial question of whether the American Founders believed their own subjective understandings should guide future interpretation of the U.S. Constitution, or whether they thought the constitutional construction should be guided only by objective public meaning or some other hermeneutic standard.
The Original Understanding Of The Indian Commerce Clause, Robert G. Natelson
The Original Understanding Of The Indian Commerce Clause, Robert G. Natelson
Faculty Law Review Articles
This article is a comprehensive analysis of the original meaning of and understanding behind the Constitution's Indian Commerce Clause under which Congress claims plenary and exclusive power over federal affairs with Indian tribes. The author concludes that, as originally understood, congressional power over the tribes was to be neither plenary nor exclusive.
Remembering The Creditor At Death: Aligning Probate And Nonprobate Transfers, Elaine H. Gagliardi
Remembering The Creditor At Death: Aligning Probate And Nonprobate Transfers, Elaine H. Gagliardi
Faculty Law Review Articles
This article focuses solely on creditor clams arising prior to death that remain unpaid as of death. Part II highlights through examples the difficulties the fragmented system causes for creditors. Part III examines key probate procedures governing creditor claims, and Part IV contrasts those procedures with procedures for collecting creditor claims from nonprobate assets. Part IV also explores the ability of creditors to reach specific types of nonprobate assets. Part V then suggests legislative reforms that would better balance both the interests of beneficiaries and the interests of a decedent's creditors.
An Agument For Original Intent: Restoring Rule 801 (D) (1) (A) To Protect Domestic Violence Victims In A Post-Crawford World., Andrew King-Ries
An Agument For Original Intent: Restoring Rule 801 (D) (1) (A) To Protect Domestic Violence Victims In A Post-Crawford World., Andrew King-Ries
Faculty Law Review Articles
Prosecution of domestic violence is extremely difficult, largely due to the fact that defendants are successfully pressuring victims to refuse to testify or to recant their testimony at trial. With its decision in Crawford, the Supreme Court eliminated the ability of prosecutors to use hearsay exceptions to place the domestic violence victim's statements before the jury for their substantive consideration. The Supreme Court also closed this avenue to combat defendants' efforts to avoid liability through coercive pressure on victims. Therefore, the Court's change in the Confrontation Clause law limits the prosecution's arsenal for combating witness intimidation and, at the same …
Judicial Review And The Limits Of Arbitral Authority: Lessons From The Law Of Contract, Paul F. Kirgis
Judicial Review And The Limits Of Arbitral Authority: Lessons From The Law Of Contract, Paul F. Kirgis
Faculty Law Review Articles
The Supreme Court simply stopped talking about the limits of arbitration as a mechanism for the adjudication of legal rights. Once the Court decided that any and all claims could be arbitrated, it funneled everything into the framework of the FAA, with its contractarian approach to arbitration. While it never expressly declared that arbitration of discrimination claims or consumer fraud claims fit within a contractarian model, as a practical matter, those claims were governed by the same rules that governed traditionally contractarian matters such as labor and commercial disputes. Most notably from my perspective, they all received the same extremely …
Tempering The Commerce Power, Robert G. Natelson
Tempering The Commerce Power, Robert G. Natelson
Faculty Law Review Articles
The Supreme Court's modern interpretation of the Necessary and Proper Clause in the realm of interstate commerce is textually problematic, unfaithful to the Constitution's original meaning, and contains positive incentives for Congress to over-regulate. The Necessary and Proper Clause was intended to embody the common law doctrine of principals and incidents, and the Court should employ that doctrine as its interpretive benchmark. The common law doctrine contains less, although some, bias toward over-regulation, and it is flexible enough to adapt to changing social conditions. Adherence to the common law doctrine would markedly improve Commerce Power jurisprudence and reduce incentives for …