Law Commons^™

Ultra Vires Statutes: Alive, Kicking, And A Means Of Circumventing The Scalia Standing Gauntlet In Environmental Litigation, Adam J. Sulkowski

Adam J. Sulkowski

This article makes a critical contribution to the fields of environmental and corporate law. It explains a problem in the citizen enforcement of environmental statutes: the issue of how to establish and secure standing to sue. The article then recommends a novel solution based in corporate law: the application of ultra vires statutes. The article significantly contributes to the scholarly literature on ultra vires statutes by: (1) examining thoroughly the history of the ultra vires doctrine, especially in early American history, (2) clarifying that scholars and practitioners should now cite ultra vires statutes rather than the doctrine, (3) reviewing recent …

Wild Rice: The Minnesota Legislature, A Distinctive Crop, Gmos, And Ojibwe Perspectives, Rachel Elena Durkee Walker, Jill Doerfler

Rachel Elena Durkee Walker

No abstract provided.

Altered Meanings: The Department Of The Interior’S Rewriting Of The Native American Graves Protection And Repatriation Act To Regulate Culturally Unidentifiable Human Remains, Ryan M. Seidemann

Ryan M Seidemann

Since 1990, there has been much debate - within the governmental, scientific, Native American, and legal arenas - as to the applicability of the Native American Graves Protection and Repatriation Act (NAGPRA) to culturally unidentifiable human remains. This article concludes that there is no statutory authorization to apply NAGPRA to such remains by analyzing the history of NAGPRA, the Department of the Interior's (DOI) recent attempt to promulgate draft regulations on this topic and the years' worth of consideration of this topic by the NAGPRA Review Committee. These draft regulations, which would, if given effect, mandate the repatriation of virtually …

"Negligence In The Air?" Should "Alternative Liability" Theories Apply In Lead Paint Litigation?, Richard O. Faulk, John S. Gray

Richard Faulk

This article examines various theories of alternative liability and the circumstances, policies and limitations under which they were created and expanded. It then specifically examines the application of “market share” liability to the manufacturers of lead pigment currently being sued by governmental entities under theories of public nuisance. Finally, it demonstrates how these theories are unworkable in the context of the lead paint public nuisance litigation. Viewed in the proper perspective, it is time to stop the descent of American jurisprudence down the “slippery slope” of alternative liability—lest the uncontrolled descent lead to a precipitous fall into an irrational and …

Fine Feathered Adversaries: The Fcc And Avian Mortality At Communications Towers, Benjamin W. Cramer

Benjamin W. Cramer

Every year, millions of birds are killed at communications towers in the United States, and the Federal Communications Commission (FCC) oversees hundreds of thousands of such towers. In 2000, the U.S. Fish & Wildlife Service (FWS), utilizing the legal mandates of the National Environmental Policy Act, the Endangered Species Act, and the Migratory Bird Treaty Act, issued guidelines urging the FCC to take action on ameliorating the widespread avian mortality at its communications towers. These guidelines included provisions for the siting of towers and environmental assessments of tower construction processes, which are conducted by the FCC’s licensees. Two years later, …

Fine-Feathered Adversaries: The Fcc And Avian Mortality At Communications Towers, Benjamin W. Cramer

Benjamin W. Cramer

Every year, millions of birds are killed at communications towers in the United States, and the Federal Communications Commission (FCC) oversees hundreds of thousands of such towers. In 2000, the U.S. Fish & Wildlife Service (FWS), utilizing the legal mandates of the National Environmental Policy Act, the Endangered Species Act, and the Migratory Bird Treaty Act, issued guidelines urging the FCC to take action on ameliorating the widespread avian mortality at its communications towers. These guidelines included provisions for the siting of towers and environmental assessments of tower construction processes, which are conducted by the FCC’s licensees. Two years later, …

The Emergence Of Global Environmental Law, Tseming Yang

Tseming Yang

With the global growth of public concern about environmental issues over the last several decades, environmental legal norms have increasingly become internationalized. This development has been reflected both in the surge of international environmental agreements as well as the growth and increased sophistication of national environmental legal systems across the world. A number of trends, such as globalization and international development aid efforts, have shaped the global rise of environmental law. The result is the emergence of a shared set of legal principles and norms regarding the environment, such that one can arguably describe it as a common body of …

The Case For Prudential Standing, Joshua L. Sohn

Joshua L. Sohn

This article argues against current standing doctrine, under which plaintiffs must satisfy a variety of constitutional and non-constitutional (i.e., "prudential") requirements in order to sustain a federal lawsuit. Instead, this article contends that all standing requirements should be deemed prudential. There are several reasons for this. First, the text of the Constitution and the history of its drafting provide no support for the allegedly constitutional standing requirements. Second, when the Supreme Court has sought to justify the “constitutional” standing requirements over the years, it has repeatedly relied on prudential justifications. For instance, the Court has noted how the standing requirements …

Abandon All Hope Ye That Enter: Title Vi, Equal Protection, And The Divine Comedy Of Environmental Justice, Carlton Waterhouse

Carlton Waterhouse

Dante’s Alighieri’s epic poem the Divine Comedy begins with the journey of the author and his guide Virgil down through the depths of Hell. Early in their trek, Dante finds the phrase “Abandon All Hope Ye That Enter” inscribed above the gates of Hell. Drawing on this classic work, the article analogizes Dante’s passage through Hell with the experience of communities relying on civil rights law to address the disparate racial effects of environmental decisions. The article begins with an examination of the first administrative complaint filed with the Environmental Protection Agency alleging racial discrimination in environmental permitting in 1992 …

To Hell With Kyoto, It’S Time For Something Real!, Altdus Ray Frank

Altdus Ray Frank

The intended gift of clean air and pristine atmosphere through the inception of the Kyoto Protocol was meant to be a measure to protect the environment for not only the present generation, but the future as well. Instead of accepting this gift, humanity has yet again showed its darker side; shredding the ambitious purpose of this document and crucifying its creators as being overzealous, overbearing fools. People must come to terms and understand that environmental catastrophe is the single greatest threat faced by humanity today.

It is time for a new dawn, a new era where, the global community has …

Optimal Federalism Across Institutions: Theory And Applications From Environmental Policies And Health Care, Dale B. Thompson

Dale Thompson

This article presents a framework to analyze federalism based on enactment, implementation, and enforcement institutions. The framework provides a mechanism to determine whether a particular public policy should be conducted at a state or federal level, by examining economies and diseconomies of scale inherent in each of these institutions. This article then applies the framework in a comparison of environmental policies for wetlands and endangered species, and in an analysis of a health care policy. These applications can then serve as guides to legislators and judges in analyzing federalism concerns.

Maximizing Social Influence To Minimize Carbon Emissions: Law And Social Norms In Collective Action, Jed S. Ela

Jed S Ela

Legal scholars have long argued that informal social norms can solve collective action problems, as long as these problems occur in close-knit groups. This “group knittedness hypothesis” may suggest that social norms, by themselves, will not be able to solve the world’s largest collective action problem: anthropogenic climate change. Yet recent scholarship has taken the group knittedness hypothesis too far, suggesting that any attempt to manage social influences in large, loose-knit groups is likely to be relatively ineffective.

In fact, social norms can shape individual behavior even in loose-knit groups, and climate policies that ignore norms may miss important opportunities …

Implications Of The Uk Companies Act 2006 For Institutional Investors And The Corporate Social Responsibility Movement, Gordon L. Clark, Eric R. W. Knight

Eric R Knight

Non-governmental organisations, activists, and the public-at-large hold large firms accountable on many issues including their environmental footprints and the social standards of their suppliers around the world. For those coming from European social democratic traditions, stakeholders have a legitimate voice in the affairs of the corporation especially in two-tiered governance regimes that separate supervision from management. Notwithstanding attempts to re-write their proper roles and responsibilities, the Anglo-American corporation is widely believed to be the medium for the accumulation of shareholder value.

Recently, however, a counter-argument has emerged suggesting that the UK Companies Act 2006 broke with this tradition to embrace …

The Ghost In Our Genes: Ehical And Legal Implications Of Epigenetics, Gary E. Marchant, Mark A. Rothstein, Yu Cai

Gary E. Marchant

Epigenetics is one of the most scientifically important, and legally and ethically significant, cutting-edge subjects of scientific discovery. Epigenetics link environmental and genetic influences on the traits and characteristics of an individual, and new discoveries reveal that a large range of environmental, dietary, behavioral, and medical experiences can significantly affect the future development and health of an individual and their offspring. This article describes and analyzes the ethical and legal implications of these new scientific findings.

Cercla's Wooden Iron: The Contribution Counterclaim, Alfred R. Light

Alfred Light

No abstract provided.

The Contribution Of The International Court Of Justice To The Development Of International Environmental Law: A Contemporary Assessment, Jorge E. Vinuales

Jorge E Vinuales

The article provides a detailed and up-to-date assessment of the contribution of the International Court of Justice (ICJ) to the development of International Environmental Law (IEL), including the potential in this respect of the cases currently pending before the Court. The author argues that the ICJ's contribution to IEL can be organized in two main waves of cases. The legacy of the first wave, which covered essentially the Corfu Channel and the Nuclear Tests cases, as well as an important obiter dictum made in the Barcelona Traction case, was the confirmation of previous case-law on transboundary damages as well as …

Homeland Security Challenges Of Global Climate Change, Patrick E. Tolan

Patrick E. Tolan Jr.

The National Defense Authorization Act for Fiscal Year 2008 directs military planners to consider the effects of climate change on national security. This directive is not surprising following a year of increasing concern about global warming and prognostications of the myriad ills that such warming will produce.

Although some excellent articles have recently been published exploring potential overseas consequences to the Department of Defense, this article instead outlines the perhaps even more significant national security threats to the U.S. homeland.

The article takes a three-pronged approach analyzing potential weather effects, refugee issues, and economic consequences that could be prompted by …

Using Patent Law’S Teaching Function To Introduce An Environmental Ethic Into The Process Of Technical Innovation, David L. Booton, Carolyn R. Abbot

David L Booton

This article suggests that patent law be amended so as to demand that applicants disclose, as a condition of grant, the ‘best available technique’ for carrying out the claimed invention. This amendment, it is argued, would give patent law a useful role in promoting sustainable production by providing an incentive to shift production patterns in line with the concept of sustainable consumption and production (SCP). Delivering goods and services with lower environmental impacts is commonly acknowledged as a key component of sustainable development, with national governments and international organisations prioritising the SCP agenda. In recognising the role of patents in …

Combating Global Climate Change In The United States: A Local Approach To A Global Problem, Maureen Atwell

maureen atwell

Global climate change is a growing concern throughout the world, with the United States arguably having more power than any other country to either contribute to or eradicate the problem. The United States produces an estimated twenty five percent of the world’s greenhouse gases, despite having only five percent of the world’s population. Given that the United States is the world’s largest producer of greenhouse gases, any effort in the United States to control the production of greenhouse gases could potentially have a huge impact on the global climate change problem.

The Mouse Roars! Rhode Island High Court Rejects Expansion Of Public Nuisance, Richard O. Faulk, John S. Gray, Thomas R. Bender

Richard Faulk

On July 1, 2008, the Supreme Court of Rhode Island, the smallest state in the nation, gave a loud and mighty roar as it joined the chorus of high courts rejecting attempts to expand the use of the law of public nuisance as a means to sue manufacturers of lawful products. In so ruling, the court acted consistently with the traditional role of judges presiding over common law controversies, and joined a growing list of other state supreme courts that have refused to enlarge the boundaries of this ancient tort.

Green-Collar Jobs: Turn Green Switch Now For A Fresh Boost Of Energy, Anna Rose, Susan Harris Rimmer

Susan Harris Rimmer

Transitioning from a carbon-intensive economy into a new, clean energy economy and society could be seen as an opportunity to create hundreds of thousands of new jobs in energy efficiency, renewable energy, and other green-collar and green-professional industries. Australia should aim for a just transition to new jobs skilled jobs, good jobs, fair workplaces for the country's youth, with the added benefit of export value.

"Political Questions": An Invasive Species Infecting The Courts, Philip Weinberg

Philip Weinberg

The political question doctrine has recently been used to derail important environmental suits about climate change. This is an inappropriate expansion of that doctrine and ought to be rejected by the courts.

The Evolution Of Natural Law, Timothy Keefe

Timothy Keefe

The theory of natural law is applied to social predators in order to expand the concept upon which the United States was first conceived in The Declaration of Independence and Constitution. That expanded theory further encourages readers to consider the existence of a quasi-contractual relationship that exists between citizens and an elected government in terms of resource consumption and habitat preservation. Our natural rights are dependent upon a duty to protect the environment in light of planetary warming perpetuated by our continued success as a species. It is the responsibility of elected governments to develop more comprehensive laws designed to …

The Evolution Of Natural Law, Timothy Keefe

Timothy Keefe

The theory of natural law is applied to social predators in order to expand the concept upon which the United States was first conceived in The Declaration of Independence and Constitution. That expanded theory further encourages readers to consider the existence of a quasi-contractual relationship that exists between citizens and an elected government in terms of resource consumption and habitat preservation. Our natural rights are dependent upon a duty to protect the environment in light of planetary warming perpetuated by our continued success as a species. It is the responsibility of elected governments to develop more comprehensive laws designed to …

Ursus Maritimus, Kyoto And Bali: Linking The Agreement On The Conservation Of Polar Bears To Greenhouse Emissions Standards And Redefining The Concept Of “Taking”, Rachel Sinness

Rachel Sinness

ABSTRACT

In November of 1973, the United States, Canada, Norway, Denmark, and the Union of Soviet Socialist Republics entered into the Agreement on the Conservation of Polar Bears to protect polar bears in the Arctic Region. The Agreement prohibited the “taking” of the majestic creatures via prohibiting the hunting and capturing of the bears.

“Taking” language, used in many laws and international treaties, has consistently employed the prohibition of the killing—in some fashion—of various species. This is evident in international treaties such as the Bonn Convention. “Taking” also adapts this prohibitive language in national legislation, such as the Endangered Species …

The Ghost In Our Genes: Legal And Ethical Implications Of Epigenetics, Gary E. Marchant, Mark A. Rothstein, Yu Cai

Gary E. Marchant

Epigenetics is one of the most scientifically important, and legally and ethically significant, cutting-edge subjects of scientific discovery. Epigenetics link environmental and genetic influences on the traits and characteristics of an individual, and new discoveries reveal that a large range of environmental, dietary, behavioral, and medical experiences can significantly affect the future development and health of an individual and their offspring. This article describes and analyzes the ethical and legal implications of these new scientific findings.

The International Tropical Timber Organization And Conservationist Forestry Norms: A Bridge Too Far, Gerry J. Nagtzaam

Gerry J Nagtzaam

This article explores the attempts to create an global tropical timber regime and examines its underlying competing environmental norms of exploitation, conservation and preservation. It outlines a history of forestry exploitation over time and tracks the stilted development of a global tropical timber regime. It further examines the development of the International Tropical Timber Agreement and its concomitant Organisation. Legro’s test of the robustness of a norm is applied to the tropical timber regime to determine when and why, and through whose agency, normative change has not been effected within the International Tropical Timber Organisation where conservationist norms have failed …

The International Whaling Commission And The Elusive Great White Whale Of Preservationism, Gerry J. Nagtzaam

Gerry J Nagtzaam

This article explores the attempts to create an global legal whaling regime and examines its underlying competing environmental norms of exploitation, conservation and preservation. It outlines a history of whaling exploitation over the centuries and tracks the development of early whaling regimes as well as examining the development of the International Whaling Commission and treaty. Legro’s test of the robustness of a norm is applied to the whaling regime to determine when and why, and through whose agency, normative change was effected within the Commission.

Reducing Emissions From Deforestation In Developing Countries: International And National Governance (Case Study Of Indonesia), Nathaniel Mangunsong

Nathaniel Mangunsong

The United Nations Framework Convention on Climate Change meeting in Bali in December 2007 resulted in a landmark decision on Reducing Emissions from Deforestation in Developing Countries (RED). This scheme promises an option of reducing deforestation as well as promoting carbon credit as an alternative income-generating activity within forest countries. However, there are still some challenges and issues that must be resolved before there can be successful implementation of this scheme such as the issues of leakage and permanence. These issues need to be addressed through establishing strong international and national governance. On the international level, there is a need …

Legal Aspects Of Prior Informed Consent On Access To Genetic Resources: An Analysis Of Global And Local Implications Towards An Optimal Normative Construction, Kuei-Jung Ni

Kuei-Jung Ni

Since the Convention on Biological Diversity (CBD) was in force, national implementation of the access to and benefit-sharing (ABS) requirement on genetic resources has been flourishing. Prior informed consent (PIC) of the ABS constitutes a major means to deter illegal bio-piracy and to ensure fair access to genetic resources. Given the differential social structure in individual nations, there seems to be no consistent pattern of PIC domestically. Some legislatures recognize the decisive role of indigenous or local communities in the context of enforcing PIC, making access to genetic resources impossible without their consent. On the other hand, several central governments …