Law Commons^™

Protecting Third Parties In Contracts, Kishanthi Parella

Scholarly Articles

Corporations routinely impose externalities on a broad range of non-shareholders, as illustrated by several unsuccessful lawsuits against corporations involving forced labor, human trafficking, child labor, and environmental harms in global supply chains. Lack of legal accountability subsequently translates into low legal risk for corporate misconduct, which reduces the likelihood of prevention. Corporate misconduct toward non-shareholders arises from a fundamental inconsistency within contract law regarding the status of third parties: On the one hand, we know that it takes a community to contract. Contracting parties often rely on multiple third parties—not signatories to the contract—to play important roles in facilitating exchange, …

A "Directed Trust" Approach To Intergenerational Solidarity In American Environmental Law And Policy: A Modest Proposal, Lucia A. Silecchia

Scholarly Articles

In recent years, much has been written about trust principles as a useful lens through which to view environmental obligations – particularly with respect to the obligations of the present generation to those who will live in the generations to come.
Underlying much of this discussion is the ancient principle of the public trust doctrine as a vehicle for meeting that intergenerational responsibility. However, while trust theory enjoys an impressive legal pedigree, it has not gained as much traction in American environmental law as might be effective for addressing contemporary environmental issues.
One reason that the trust model is not …

Conflicts And Laudato Si’: Ten Principles For Environmental Dispute Resolution, Lucia A. Silecchia

Scholarly Articles

Unfortunately, conflicts are all too familiar in the modern world. Global conflicts claim and threaten the lives of many. Personal conflicts strike at the heart of families and friendships. Courts, workplaces, communities, the political process, mediating institutions, businesses, and media all seem fraught with conflicts that can unnecessarily divide rather than unite.

Without a doubt, there is a certain amount of conflict that is helpful, and even vitally necessary, to any society. Without it, there is no healthy debate about things that matter, a diminished ability to reach compromises that may represent the best of competing ideas, and less opportunity …

The Morality Of Market Mechanisms, Lucia A. Silecchia

Scholarly Articles

In Pope Francis’ Encyclical on the environment, Laudato Si’, the leader of the Catholic church presents a moral argument for combating climate change and other environmental harm. As he has done throughout his papacy, the Pope highlights concerns about economic disparity, arguing that climate change disproportionally impacts developing nations and the world’s poor. Along with critiques of “consumerism” and the modern economic system, the Pope expressed deep skepticism about the motives and impacts of market mechanisms as emissions reduction tools. The Pope is not the first to challenge the ethics of market-based systems of environmental protection. Critics have argued that …

Laudato Si’ And Care For Our Common Home: What Does It Mean For The Legal Profession?, Lucia A. Silecchia

Scholarly Articles

Pope Francis’s recent encyclical, Laudato Si’ (“Praised Be You”), has been one of the most widely anticipated papal documents in recent memory. It has also received far more popular commentary than would be expected of a papal encyclical. Yet, while Laudato Si’ has been widely dubbed “the climate change” encyclical, it is far broader than that. It is also a far-reaching analysis of a number of political, economic, social and legal issues, in addition to being an extensive exposition on human duties toward creation.

In the text of this encyclical, there are also some important lessons to be gleaned for …

“Social Love” As A Vision For Environmental Law: Laudato Si’ And The Rule Of Law, Lucia A. Silecchia

Scholarly Articles

In the years of his still-young papacy, Pope Francis has often spoken and written about ecological responsibility, addressing both the Catholic and global communities in his exhortations on environmental matters. In June of 2015, he released his most extensive exposition on these issues in his encyclical letter, Laudato Si: On Care for Our Common Home.In this wide-ranging encyclical, Pope Francis expressed a fascinating paradox with respect to law and ecology. On the one hand, Laudato Si’ contains a stunningly enthusiastic endorsement of a strong local, national and, in particular, international legal system empowered to impose strict environmental and economic controls …

Environmental Hedonism Or, Securing The Environment Through The Common Law, George P. Smith Ii, David M. Steenburg

Scholarly Articles

This Article investigates whether a right to environmental hedonism can be claimed and compensated for when the environment is degraded. Building upon the economic and mathematical uncertainties in assessing any claim for loss of enjoyment of the environment, the Article considers the evaluation of environmental harms ex post through use of restorative damages allowed under the Restatement (Second) of Torts - and concludes that because of the ambiguities in public policy for not only determining what is an appropriate case for an award of restorative damages but also evaluating the nature and the scope of environmental injuries, these damages are …

Colonial Property, Private Dams, And Climate Change In Virginia, Jill M. Fraley

Scholarly Articles

Dams have been a significant part of flood prevention and management systems in the United States, dating back to the systematic efforts of the Tennessee Valley Authority and, less systemically, long before that. Dealing with flood management in Virginia presents unique challenges because of a colonial legacy that allows most dams in Virginia to be privately owned. Through a mechanism called King’s Grants, some Virginia landowners hold title not simply to property surrounding a navigable waterway, but also to the soil beneath the river and to dams crossing the river. Such ownership of the soil of large, navigable waterways is …

Introduction To Property, History & Climate Change In The Former Colonies Symposium Special Issue, Jill M. Fraley

Scholarly Articles

None available.

Re-Examining Acts Of God, Jill M. Fraley

Scholarly Articles

For more than three centuries, tort law has included the notion of an act of God as something caused naturally, beyond both man's anticipation and control. Historically, the doctrine applied to extraordinary manifestations of the forces of nature, including floods, earthquakes, blizzards, and hurricanes. Despite the significance of the doctrine, particularly in large-scale disasters, scholars rarely engage the act of God defense critically. However, recently, the doctrine has received more substantial criticism. Denis Binder argued that the doctrine should be repudiated as merely a restatement of existing negligence principles Joel Eagle criticized the doctrine, suggesting that it should not exclude …

The Preferential Option For The Poor: An Opportunity And A Challenge For Environmental Decision Making, Lucia A. Silecchia

Scholarly Articles

The doctrine of 'the preferential option for the poor' has deep roots in Catholic social thought. It proposes that the needs of the poorest and most vulnerable be given priority when creating and evaluating public policies, actions, and attitudes. More recently, the obligation to care for natural environment in an ethical way has been gaining more attention both in the secular world as well as among Catholic scholars who seek to explore the scope of human responsibility for the created world. This paper explores the intersection of the preferential option for the poor and environmental ethics. After a general discussion …

Discerning The Environmental Perspective Of Pope Benedict Xvi, Lucia A. Silecchia

Scholarly Articles

As commentators assess the legacy left behind by Pope John Paul II, they will surely note with interest the contributions he made to the advancement of Catholic social thought with respect to the necessity for careful stewardship of creation and the link that exists between ecological concerns and genuine human development. How, his successor, Pope Benedict XVI, faces a world in which ecological concerns persist and pressures for solutions continue. This paper explores the writings of Pope Benedict XVI to ascertain the ways in which he may approach the environmental questions of the modern world. In his theological writings prior …

The Public Trust Doctrine And Natural Law: Emanations With A Penumbra, George P. Smith Ii, Michael W. Sweeney

Scholarly Articles

In American jurisprudence, the public trust doctrine emerged as a means of protecting certain limited environmental interests, such as coastal waterways and fishing areas, which were preserved for the benefit of the public and distinguished from grants of private ownership. Modern scholars have, however, called for an expansive application of the public trust doctrine - citing, as such, the growing inventory of "changing public needs" in the environmental context, such as the need for improved air and water quality, and the conservation of natural landscape. This Article examines the history and scope of the public trust doctrine in order to …

Environmental Ethics From The Perspective Of Nepa And Catholic Social Teaching: Ecological Guidance For The 21st Century, Lucia A. Silecchia

Scholarly Articles

Over the years, a substantial body of Catholic social teaching has arisen to offer guidance as to the obligations that humanity has as stewards of creation. With ancient roots in Biblical text, and modern exploration in more recent texts, the connection between religious obligation and ecological responsibility has garnered much attention among Catholic thinkers - as well as among religious leaders of other faiths. This article explores the principles of Catholic social thought with respect to the environment and traces the development of those principles from their Biblical origins through the papacy of Pope John Paul II. In tandem with …

The Catalyst Calamity: Post-Buckhannon Fee-Shifting In Environmental Litigation And A Proposal For Congressional Action, Lucia A. Silecchia

Scholarly Articles

Acknowledging the importance of citizen suits in giving teeth to environmental laws, and recognizing the often prohibitive costs of such litigation, Congress often included fee-shifting provisions in most environmental citizen suit statutes. It is well established that plaintiffs who win a judicial ruling in their favor qualify for the benefits of such fee-shifting. What is less clear is whether those parties whose successes come outside the courtroom - as is often true in the environmental context - can also recover fees. In the past, the so-called “catalyst theory” answered this question affirmatively. However, in 2001, the catalyst theory was dealt …

Northern Economic Obligation, Southern Moral Entitlement, And International Environmental Governance, Mark A. Drumbl

Scholarly Articles

Not available.

Poverty, Wealth, And Obligation In International Environmental Law, Mark A. Drumbl

Scholarly Articles

Developing nations are demonstrating some success in basing their participation in international environmental governance upon commitments by developed nations to provide financial resources and technology transfer. In recent years, these commitments have achieved textual status with a number of multilateral agreements. Part II of this Article identifies and documents treaty-based examples of this swap of resources in exchange for participation, with particular focus on the areas of climate change, biodiversity use/conservation, and ozone protection. This Article suggests that this swap represents a dynamic and emerging relationship between the North and the South that can best be described as a "shared …

Pinning The Blame & Piercing The Veil In The Mists Of Metaphor: The Supreme Court’S New Standards For The Cercla Liability Of Parent Companies & A Proposal For Legislative Reform, Lucia A. Silecchia

Scholarly Articles

This article tackles the complex question of the liability of parent corporation for the CERCLA misadventures of their subsidiaries. In 1998, the United States Supreme Court tried to resolve this complex question. In many respects, this decision was a significant step in the right direction, and the article begins by analyzing the Court’s opinion. However, the article then identifies three significant questions left open after Best foods. In light of these open questions, the article proposes a legislative proposal to further refine the parent-subsidiary allocation of liability to better serve CERCLA’s broad remedial goals and to clarify the expectations of …

Square Pegs And Round Holes: Does Sentencing For Environmental Crimes Fit Within The Guidelines?, Lucia A. Silecchia, Michael J. Malinowski

Scholarly Articles

This article presents an overview of the Proposed Guidelines and assesses their potential to improve both the existing sentencing scheme and, more importantly, the environmental behavior of corporate citizens. This analysis concludes that, while the Proposed Guidelines improve current haphazard sentencing practices, it is difficult to predict their efficacy in furthering environmental policy. The fundamental problem is that traditional criminal sanctions are not easily applied to non-traditional offenders committing non-traditional offenses. Rather than expressing optimism about the Proposed Guidelines, this paper suggests that the behavior of corporations could be modified more efficiently through non-criminal incentives coupled with increased criminal prosecution …

Ounces Of Prevention And Pounds Of Cure: Developing Sound Policies For Environmental Compliance Programs, Lucia A. Silecchia

Scholarly Articles

In the 1990s, when criminal enforcement of American environmental statutes became more widespread, and the consequences of violations potentially more severe, the creation of effective environmental compliance programs became a priority for the regulated community. In previous years, creation of such programs could have been viewed merely as a responsible option to assist corporations in achieving or maintaining reputations as good corporate citizens.

However, when the 1990s ushered in increased criminal prosecution of environmental violators, the stakes were raised significantly and the motives for creating environmental compliance plans changed. Such plans became important not only as a way to prevent …

Judicial Review Of Cercla Cleanup Procedures: Striking A Balance To Prevent Irreparable Harm, Lucia A. Silecchia

Scholarly Articles

When Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) in 1980 in response to the problems of toxic waste and hazardous substances, the central goals of the Act were clear. CERCLA was intended to provide an effective mechanism for cleaning up such dangers as quickly as possible, with as little expense as feasible, and with as much of that expense as possible borne by the responsible parties, rather than by the taxpayers. Accordingly, CERCLA included provisions for establishing liability for the costs of cleaning up hazardous waste sites. Congress also created the Superfund to pay for those …

Providing Economic Incentives In Environmental Regulation, Marshall J. Breger, Richard B. Stewart, E. Donald Elliott, David Hawkins

Scholarly Articles

No abstract provided.

The United Nations And The Environment: Sometimes A Great Notion?, George P. Smith Ii

Scholarly Articles

This article presents an historical retrospective of the efforts of the United Nations to deal, rather unsuccessfully, with the global environment.

Today, as in the late 1970’s and the 1980’s, the success of transnational environmental programs cannot be measured within an isolated prism; but, rather, with a realization of resource interdependence. There is no over-arching principle of shared responsibility among the states which acknowledges an obligation for them to compromise sovereignty in the name of promoting the United Nations Environmental Programme (UNEP). The UN’s global protection plan, as it emerged from the 1972 Stockholm Conference on the Human Environment and …

Acid Rain: A Transnational Perspective, George P. Smith Ii

Scholarly Articles

The purpose of this article is to evaluate current selected transnational efforts designed to meet and combat the problems of acid rain, evaluate the possible legal remedies available for violations thereof and suggest avenues for discerning and evaluating a measured approach to environmental decision-making.

Electricity And The Environment: A Season Of Discontent, George P. Smith Ii

Scholarly Articles

No abstract provided.

Toward An International Standard Of Environment, George P. Smith Ii

Scholarly Articles

No abstract provided.

The Environment And The Judiciary: A Need For Co-Operation Or Reform, George P. Smith Ii

Scholarly Articles

In Section 9 of the Federal Water Pollution Control Act Amendments, Congress authorized a study of the feasibility of establishing an environmental court which would have exclusive jurisdiction over environmental matters. This mandate was devoid of any hint as to the shape and functions of the proposed court, and made no attempt to define the contours of an "environmental issue". An examination of the legislative history of the Act is no more helpful in illuminating the Congressional intent. The study was carried out by the Land and Natural Resources Division of the Justice Department which, because of the absence of …

Does The Environment Need A Court?, George P. Smith Ii

Scholarly Articles

In one of his last opinions, Mr. Justice Harlan commented that interstate pollution cases were so complex that they might well be beyond the Supreme Court's power to adjudicate. Such intimations, coming at a time when many claim the American court system is taxed to its capacity and when environmental litigation is allegedly skyrocketing, prompt the question of whether we need a new environmental court to handle cases in this specialized field.

Legal Anatomy Of An Air Pollution Emergency, Doug Rendleman

Scholarly Articles

None available

Apostrophe To A Troubled Ocean, George P. Smith Ii

Scholarly Articles

No abstract provided.