Law Commons^™

Precaution In International Environmental Policy And United States Law And Practice, David Wirth

David A. Wirth

No abstract provided.

Ucita, Sarah Wiant

Sarah K. Wiant

No abstract provided.

Regulation Of Preventive And Premptive Use Of Force In The United Nations Charter: A Search For Original Intent, Timothy Kearley

Timothy G. Kearley

Beyond Facile Assumptions And Radical Assertions: A Case For Critical Legal Economics, Reza Dibadj

Reza Dibadj

This piece takes issue with the conventional wisdom that economic and critical approaches to law are incompatible. It argues that the facile assumptions behind the popular conception of law and economics, as well as the radical assertions characterizing traditional critical legal studies, mask the potential of each approach. Once stripped of this baggage, each reveals rich insights which, when combined, can serve as the basis for a new path. Critical legal economics is an interdisciplinary venture that seeks to apply the discipline of economic thought to prevent utopian speculation, while addressing a series of critical questions-around wealth disparities, information asymmetries, …

A Positive Rights Interpretation Of The Establishment Clause, Alan E. Garfield

Alan E Garfield

No abstract provided.

The Road To Perdition: The Demise Of Tmdl Litigation, James R. May

James R. May

Citizens have filed more than two dozen suits and sent nearly four dozen notices of intent to sue EPA to implement the Clean Water Act's once vaunted "total maximum daily load" (TMDL) program. 33 U.S.C. §1313(d). The results are striking. Since 1997, states and EPA have identified nearly 20,000 waters previously thought to comply with water quality standards that do not. Since 2000, EPA has established or approved nearly 8,000 plans that aim to make these dirty waters fishable and swimmable. EPA is under court order to move the TMDL program along in more than 20 states. TMDL litigation, particularly …

Where The Water Hits The Road: Recent Developments In Clean Water Act Litigation, James R. May

James R. May

This article discusses reports recent developments involving particularly interesting juridical and administrative pronouncements in the areas of Clean Water Act jurisdiction, including key definitional terms "navigable waters," "addition," "pollutant," and "point source." It discusses how developments concerning permits, standards, TMDLs, citizen suits, and enforcement policies are shaping water pollution regulation in the United States.

Now More Than Ever: Trends In Environmental Citizen Suits At 30, James R. May

James R. May

This article surveys and analyses trends in the astonishing arena of environmental citizen suits. Environmental citizen suits matter. Borne in a fulcrum of necessity due to inadequate resources and resolve, and borrowing a bit from common law qui tam without the bounty, Congress has experimented by providing citizens the remarkable authority to file federal lawsuits as “private attorneys general” to enforce many of the nation's environmental laws. And enforce they do. Despite ever more cascading burdens respecting notice, jurisdiction, preclusion, actions against EPA and third parties, remedies, SEPs and attorney fees, there are more reported environmental citizen suits than ever. …

State Law Responses To Global Warming: Is It Constitutional To Think Globally And Act Locally?, David R. Hodas

David R. Hodas

The constitution creates a federalist system, in which States retain general police power not superseded or limited by the Constitution or federal law. Under President George W. Bush, the United States adopted two seemingly conflicting positions. At the federal level, President Bush has rejected the Kyoto Protocol and declined to develop any material foreign or domestic policies to limit greenhouse gas (GHG) emissions. At the state level, many states adopted a wide range of policies, statutes and regulations addressing GHG emissions. Critics of these policy initiatives question whether States possess the constitutional authority to address global warming, citing the doctrines …

Equality In The Virtual Workplace, Michelle A. Travis

Michelle A. Travis

This article places the sociological data on telecommuting into a theoretical context in an attempt to resolve a current split in feminist work/family conflict jurisprudence. Some legal feminists argue that women's workplace inequality is largely the result of forces external to the workplace - i.e., learned or inherent differences in women's propensity to perform carework. Other legal feminists argue that women's workplace inequality is largely the result of forces internal to the workplace - i.e., workplace structures and practices that exclude most women from the most desirable jobs. This article argues that the telecommuting data supports the latter theory, rather …

Now More Than Ever: Environmental Citizen Suit Trends, James R. May

James R. May

This article serves as a companion reader to “Environmental Citizen Suits at Thirtysomething: A Celebration and Summit,” Part One examines trends in environmental citizen suits post-Laidlaw. Part Two describes why citizen suits are needed now more than ever. It concludes that jurisprudential and statistical trends show both that there are more, and why more are needed still, environmental citizen suits than ever. Current national security prerogatives have not made for it easy for agencies to perform duties Congress has declared mandatory, and for courts to compel action. These trends are unlikely to change course anytime soon. Hence, the clarion call …

Environmental Citizen Suits At Thirtysomething: A Celebration And Summit, James R. May, Bruce J. Terris, Zygmunt J. Plater, Ann Powers, Michael D. Axline, David Bookbinder, Peter Lehner, Robert F. Kennedy

James R. May

This compilation article provides a rare behind the scenes glimpse into landmark environmental cases from those who litigated them, including Robert F. Kennedy, Jr., Bruce Terris, Professor Zygmunt Plater, Professor Ann Powers, Mike Axline, David Bookbinder, and Peter Lehner. In 1970, Congress gave citizens the remarkable authority to file federal lawsuits as “private attorneys general” to enforce the Clean Air Act (CAA). Congress intended citizen suits to fill the vast void left by inadequate enforcement by federal and state regulators, and to ensure compliance and deter illegal activity. The approach stuck. Now more than one dozen federal environmental statutes, numerous …

Tort, Compensation, And Two Kinds Of Justice, John G. Culhane

John G. Culhane

Following the horrific terrorist attacks of September 11, 2001, Congress moved swiftly to pass legislation that both protected potential tort defendants against crushing liability and created a fund to compensate those killed or injured by the terrorists. Although the Victim Compensation Fund does not provide the full recovery that a plaintiff might gain through a tort suit, it nonetheless reflects a tort law bent by allowing recovery of full economic loss.

This Article argues that the Fund confuses two kinds of justice. Corrective justice (herein, tort law) is concerned with repairing an inequality between parties that wrongful conduct has created. …

Justice Ginsburg And The Middle Way, Laura K. Ray

Laura K. Ray

No abstract provided.

Regulatory Givings And The Anticommons, Reza Dibadj

Reza Dibadj

The concepts of takings and the tragedy of the commons are familiar to those versed in the legal and economic literature. Only recently has scholarship begun to emerge around their less studied counterparts, givings and anticommons. For the first time, this article attempts to develop and bring together these two emerging areas of legal scholarship using the tools of law and economics. The focus is to explore how these new concepts, taken together, can create a mechanism with which to explore developments in administrative law. The piece first builds a theoretical argument as to how regulatory largesse can subtly create …

Shedding Light On The Preemption Doctrine In Product Liability Actions: Defining The Scope Of Buckman And Sprietsma, Jean M. Eggen

Jean M. Eggen

No abstract provided.

Toxic Torts And Causation: The Challenge Of Daubert After The First Decade, Jean M. Eggen

Jean M. Eggen

No abstract provided.

Toward Meaningful Cable Competition: Getting Beyond The Monopoly Morass, Reza Dibadj

Reza Dibadj

This article argues that poor regulation has thwarted competition among cable providers. It begins by laying out the history of cable regulation to show that the regulatory framework was created by a series of ad hoc, often contradictory, policies. It then surveys the markets for video programming and broadband access to show that precious little competition exists today. Moving to an economic analysis of the industry, it highlights the surprising irony that despite years of anti-competitive maneuvering, even the incumbent players are facing financial uncertainty. The paper also proposes a new regulatory paradigm based on economic and technological reality. Finally, …