Law Commons^™

A Sweet Home No More?: The Future For Habitat Protection Under The Endangered Species Act, Federico Cheever, Murray D. Feldman, University Of Colorado Boulder. Natural Resources Law Center

A Sweet Home No More?: The Future for Habitat Protection Under the Endangered Species Act (November 29)

20 pages.

Includes bibliographical references and biographical information for Federico Cheever and Murray D. Feldman.

Contents:

Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon / Federico Cheever -- The Sweet Home decision and private property issues / Murray D. Feldman -- Memorandum of Agreement between the State of Colorado and the Department of the Interior concerning programs to manage Colorado's declining native species

The U.S. Supreme Court decision in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon,115 S.Ct. 2407 (1995), held that the Department of the Interior reasonably construed Congress' intent when it included …

Caudill V. Consolidation Coal Company, Penny White

UTK Law Faculty Publications

No abstract provided.

Provincialism In United States Courts , Patrick M. Mcfadden

Cornell Law Review

No abstract provided.

Retroactive Taxation: United States V. Carlton -- The Taxpayer Loses Again!, Ronald Z. Domsky

Northern Illinois University Law Review

Unlike criminal laws, the ex post facto constitutional protection does not extend to civil tax matters. Nor are the words "fairness" or "equity" found anywhere in the Internal Revenue Code. Even as this is written, Congress is debating major tax changes, some of which may be retroactive. Should taxpayers be required to plan their financial affairs always subject to pending tax legislation or legislation that hasn't even yet been proposed? The Carlton case is one of the most egregious examples of taxpayer abuse in this area.

Designing A "System For Idiots": An Analysis Of The Impracticality Of Davis V. United States On Ambiguous Waivers Of The Right To The Presence Of Counsel, William G. Worobec

Northern Illinois University Law Review

This article explains the United States Supreme Court holding that police, upon a suspect's equivocal reference to their Fifth Amendment right to the presence of counsel during interrogation, are no longer required to clarify the suspect's true intent. The author contends the majority was erroneous in holding equivocal waivers to be equivalent to clear waivers, and that the decision could not be reconciled with Miranda and its progeny. The Court has impermissibly placed the burden of a mastery of the law on the less knowledgeable suspect, and consideration need be given to existing lower court proposals, or a modification thereof …

Schiro V. Farley: If At First You Don't Succeed, Trial And Trial Again; The Demise Of The Double Jeopardy Clause Within The Context Of Capital Punishment, Patrick L. Edgerton

Northern Illinois University Law Review

This note examines the United States Supreme Court decision allowing a trial judge in the sentencing phase to use as an aggravating circumstance to impose the death penalty, an element of which the jury was silent in the guilt or innocence phase. The author contends that the majority's application of the Double Jeopardy Clause, including the doctrines of collateral estoppel amid implied acquittal, was not only erroneous but also inconsistent in light of the Court's prior holdings treating capital cases as two trials: (1) guilt or innocence phase; and (2) sentencing phase. Focusing on the "trial-like" nature of the sentencing …

The Disparate Treatment Of Student And Family Farmer Debtors: Suggestions For Statutory Reform Of Bankruptcy Policy, Nancy H. Kratzke, Thomas O. Depperschmidt

Northern Illinois University Law Review

The resolution of bankruptcy litigation involving individuals under the governmental student loan programs and family farmers under Chapter 12 of the Bankruptcy Code provides an intriguing insight into congressional policy. That divergence is especially prominent in the treatment of "disposable income" under these two statutory provisions. When deciding issues relating to whether income should go to unsecured creditors or be used to offset future farming costs, courts tend to interpret the Code in favor of debtors; conversely, the Code creates, and courts perpetuate through their rulings, a clear presumption against discharging student loan obligations. The debtor will prevail only if …

The Public Figure Doctrine: A Reexamination Of Gertz V. Robert Welch, Inc., In Light Of Lower Federal Court Public Figure Formulations, Mark D. Walton

Northern Illinois University Law Review

This article focuses new attention oi the United States Supreme Court decision in Gertz v. Robert Welch, Inc., the seminal defamation case in which the Court sets out the current test for determining whether a defamation plaintiff is a public figure. The Courts of Appeals have differed in their formulations of the Gertz test, which in turn has led to inconsistent application of the public figure doctrine. Through an examination of the history of defamation law and an analysis of recent lower court public figure decisions, the author posits that the Gertz test is unlikely to ever be universally applied.

Environmental Regulation Of Oil And Gas Development On Tribal Lands: Who Has The Authority?, Richard B. Collins, Tom Shipps, Marla Williams, University Of Colorado Boulder. Natural Resources Law Center

Environmental Regulation of Oil and Gas Development on Tribal Lands: Who Has the Authority? (November 1)

14 pages.

Collection of 3 papers presented at the Hot Topics in Natural Resources Law program held on Nov. 1, 1995.

Includes bibliographical references.

Contents:

Environmental regulation of oil and gas development on tribal lands : who has authority? / Richard Collins -- Environmental regulation of energy resource development on Indian reservation land / Tom Shipps -- Colorado Oil and Gas [Conservation] Commission jurisdiction over environmental matters on Indian lands / Marla Williams

Jurisdiction to regulate the environmental impacts of oil and gas development on the reservation has been contested by tribes, the state, private land owners and federal agencies. …

Awareness Of Meaning In Libel Law: An Interdisciplinary Communication & Law Critique, Clay Calvert

Northern Illinois University Law Review

This article critiques, from a communication and law perspective, a proposal to add another element to the already complex calculus of constitutional libel law. The element--a subjective state of mind hurdle closely akin to the actual malice standard--requires libel plaintiffs to prove that defendants were aware of the defamatory meaning conveyed by their messages at the time of publication. The article suggests that while free speech and press interests under the First Amendment may militate in favor of courts adopting this element, it: 1) conflicts with tie reality of communication processes inherent in meaning determination; 2) denigrates the pivotal roles …

Francis X. Riley Lecture On Professionalism, George E. Bushnell Jr.

Northern Illinois University Law Review

No abstract provided.

J.E.B. V. Alabama Ex Rel. T.B.: Gender-Based Peremptory Challenges On Trial, Stacey L. Wichterman

Northern Illinois University Law Review

This note examines the United States Supreme Court decision holding that litigators may not discriminate on the basis of gender during the process of selecting jurors in that it violates the Equal Protection Clause of the Fourteenth Amendment. In addition to discussing the history of peremptory challenges and jury selection, the author proposes a limitation on the number of peremptory challenges allowed during jury selection. In doing so, the author explains that peremptory challenges have historically been a useful and integral part of jury selection, but the process is now a fertile ground for abuse. The author concludes that unless …

Their Finest Hour: Lawyers, Legal Aid And Public Service In Illinois, Joseph A. Dailing

Northern Illinois University Law Review

This article details the history of the provision of free legal services for the poor. Advocates of the governmentally-funded Legal Service Corporations (LSC) have encountered numerous obstacles and endured ferocious attacks from opponents. At times it appeared that the entire LSC program was in jeopardy. The author recounts the establishment of the LSC program in Illinois, summarizes the LSC's many accomplishments, and outlines the challenges that the Illinois legal community will face in continuing to offer legal services to the impoverished of our state.

Vicarious Liability Of An Employer-Master: Must There Be A Right Of Control?, John Dwight Ingram

Northern Illinois University Law Review

Most courts impose vicarious liability on an alleged employer-master when it has a right to control the physical conduct or method of doing the work of the person who injures a third party. In other instances, courts impose vicarious liability in cases where there only an appearance of actual control exists. This article examines the difference between actual and apparent control, and the author maintains that a better test for vicarious liability is whether the injurer is acting on the employer-master's behalf.

The First Stone Of The Death Penalty, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

Mid-Atlantic Ethics Committee Newsletter, Fall 1995

Mid-Atlantic Ethics Committee Newsletter

No abstract provided.

A Lot Of Knowledge Is A Dangerous Thing: Will The Legal Profession Survive The Knowledge Explosion?, H W. Arthurs

Dalhousie Law Journal

Professor Arthurs argues that with the growth and diversification of knowledge, the common body of knowledge that underpins a unified profession is becoming more difficult to sustain. The desire to know, the need to know and the resources to know have divided lawyers into subprofessions, increasingly defined by the non-lawyers with whom they work and the clienteles they serve, bound togetherif at all-only by nostalgia and some residuum of self-interest.

Disciplinary Differences, Dwight Aarons

UTK Law Faculty Publications

No abstract provided.

Pinpointing The Beginning And Ending Of A Temporary Regulatory Taking, Gregory M. Stein

UTK Law Faculty Publications

No abstract provided.

Back To The Future: From Critical Legal Studies Forward To Legal Realism, Or How Not To Miss The Point Of The Indeterminacy Argument, John Hasnas

Duke Law Journal

No abstract provided.

The Aftermath Of Kansas V. Colorado: Regulation Of Well Pumping In The Arkansas Valley, Hal Simpson, David L. Harrison, Michael T. Mitchell, Steve Arveschoug, University Of Colorado Boulder. Natural Resources Law Center

The Aftermath of Kansas v. Colorado: Regulation of Well Pumping in the Arkansas Valley (September 18)

27 pages.

Contents:

Draft rules and regulations governing the use, control, and protection of surface and ground water rights in the Arkansas River and its tributaries : revised draft, September 6, 1995 / Hal Simpson -- Lower Arkansas Water Management Association viewpoint / David L. Harrison -- Aftermath of Kansas v. Colorado : concerns of surface users / Michael T. Mitchell -- Aftermath of Kansas vs. Colorado : role of the Southeastern Colorado Water Conservancy District / Steve Arveschoug

On May 15, 1995 the Supreme Court handed down its opinion in the case of Kansas v. Colorado, 1995 WL 283477 …

Colloquium - Gender, Law And Health Care: New Perspectives For Teaching And Scholarship: The Role Of Gender In Law And Health Care, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

Desire For Community Growth In Northeastern Illinois As Reflected In Annexation Agreements, Kimberly L. Sullivan

Northern Illinois University Law Review

It has been argued that Illinois land use law gives municipalities within the State of Illinois broad discretion in making land use decisions. This being the case, the question becomes whether such latitude actually results in inequitable treatment of landowners across the state. To answer this question, recent annexation agreements from a sample of six Chicago area municipalities were examined to determine the concessions and restrictions different municipalities place on parcels of land being annexed into their communities. While some interesting patterns and relationships existed among the agreements from the sample communities, time analysis showed that the annexation agreements were …

Conditional Zoning In Illinois: Beast Or Beauty?, Charles L. Siemon

Northern Illinois University Law Review

Although courts have traditionally been skeptical of conditional zoning, the fundamental and well taken grounds for such skepticism have been eclipsed by the emergence of planning. Conditions which are imposed pursuant to a comprehensive plat and are directed at achieving the goals of the plan are likely to be upheld, particularly if they are designed to benefit the surrounding properties and to advance the public welfare. A bilateral agreement which expressly or impliedly commits a zoning authority to a legally binding promise is likely to be invalid. This article examines Goffinet v. Christian County, the leading Illinois case on both …

Strange Economics Of Land Use Law: From Euclid To Euclid, Ronald S. Cope

Northern Illinois University Law Review

This article reviews some of the major cases of twentieth century land use law. The author points out that even if an economic analysis is applied to Dolan v. City of Tigard, Dolan was in a better economic position with the required exactions and therefore there was really no taking. In addition, the author contends that the responsibility for the burden of increased public improvement should rest with those who are in fact creating the need.

Planned Unit Development And Takings Post Dolan, Clyde W. Forrest

Northern Illinois University Law Review

Growing tensions between government efforts to require private property use or development in ways that promote the health, safety, and general quality of life within our communities are exacerbated by the so-called "Takings" cases. In Dolan v. City of Tigard, the United States Supreme Court declared a local condition of approval of a development permit to be insufficiently supported by the findings of the city. This article discusses how this decision seriously undermines the traditional presumption of validity of local Planned Unit development permit decisions and imposes a level of proof about such conditions which may result in denials of …

Procrustean Jurisprudence: An Austrian School Economic Critique Of The Separation And Regulation Of Liberties In The Twentieth Century United States, Joseph Becker

Northern Illinois University Law Review

Holmes' dissent in Lochner disparaging economics as a touchstone for liberty started this nation down the procrustean path of jurisprudiential disaster. Soon thereafter, the United States Supreme Court began separating so-called economic liberties from those later "identified" as fundamental. Ludwig Von Mises, Austrian School economist, foresaw that "as soon as the economic freedom which the market economy grants to its members is removed, all political liberties and bills of rights become humbug." This article, relying upon principles of Mises, Rothbard, and other Austrian School economists, argues that separation of economic and fundamental liberties is scientifically impossible and concludes that the …

Parity And The Litigation Of Private Property Rights In The United States And Germany: Evidence In Support Of Chemerinsky's Litigant Rights Principle, Timothy L. Gartin

Northern Illinois University Law Review

This article reviews the stalemate in the parity debate as to whether state courts are functionally interchangeable in their likelihood to protect federal constitutional rights in general and private property rights in particular. The article then summarizes Professor Chemerinsky's litigant choice principle as a means for resolving the debate. A comparison with the German judicial system yields support for the litigant choice principle.

Mid-Atlantic Ethics Committee Newsletter, Summer 1995

Mid-Atlantic Ethics Committee Newsletter

No abstract provided.

Annotated Bibliography Of Educational Materials On Legal Ethics, Deborah L. Rhode

Law and Contemporary Problems

Rhode presents an annotated bibliography that includes references to written and audiovisual materials for legal ethics courses and curricular integration projects.