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Articles 1 - 30 of 82
Full-Text Articles in Law
Lest We Be Lemmings, Claire Wright
Lest We Be Lemmings, Claire Wright
Faculty Articles
Lest We Be Lemmings concerns global warming, which is the most grave threat facing humanity today. In this article, I first: (1) discuss how the U.S. Congress and the U.S. Executive Branch, for decades, have been aware of the existence of global warming and its main cause – the burning of fossil fuels and emission of CO2 - but have consistently failed to regulate the fossil fuel industry, reduce the lucrative subsidies that they provide to the fossil fuel industry, and hold the fossil fuel industry responsible for global warming; (2) explain how the fossil fuel industry, for decades, …
A State Within A State: Re-Examining The Federal Lands Question And Its Effect On State Sovereignty, David Wilde
A State Within A State: Re-Examining The Federal Lands Question And Its Effect On State Sovereignty, David Wilde
William & Mary Environmental Law and Policy Review
Though the path of the public lands debate is well-trodden, this Note will seek to answer the question in novel ways. First, it uses the Corpus of Founding Era American English to perform an objective linguistic analysis of the phrase “dispose of” in the Property Clause. Through this analysis, it appears that an ordinary person at the time the Constitution was adopted would most likely have read the phrase “dispose of” in the Property Clause to mean sell, give away, bestow, or put into another’s hand or power.
Next, this Note investigates the historical and philosophical understandings of state sovereignty …
The Case Against Regional Transmission Monopolies, Kristen Van De Biezendos
The Case Against Regional Transmission Monopolies, Kristen Van De Biezendos
Faculty Scholarship
Over the next decade, the United States will need to build significant regional transmission infrastructure to achieve the country’s goal of net-zero power by 2035. However, there is a significant barrier: the transmission system is almost entirely owned by private monopolies. As a result, the grid has grown not to serve the public interest but in accordance with the economic priorities of these monopolies, which are not incentivized to innovate, find efficiencies, or lower costs. Past attempts to encourage competitive bidding for regional transmission projects have been stymied by laws intended to protect the monopolies, including the right of first …
Putting The Constitutional Horse Before The Cart: Federal Jurisdiction Over Next Generation Environmental Assessment, Anna Johnston
Putting The Constitutional Horse Before The Cart: Federal Jurisdiction Over Next Generation Environmental Assessment, Anna Johnston
LLM Theses
This thesis explores the extent of federal jurisdiction over a next generation environmental assessment (EA) model proposed by Sinclair, Doelle and Gibson. Examining the jurisprudence and literature, it analyses the scope of federal constitutional authority during the triggering, information-gathering and analysis and decision-making stages of project, strategic and regional assessment. A federal next generation EA law focused on impacts on areas of federal authority could be upheld under various federal constitutional heads of power. Federal jurisdiction is most important at decision-making, and authority to trigger an assessment should be based on the low jurisdictional threshold of reasonable probability of federal …
Reanimating The Foreign Compacts Clause, Thomas Liefke Eaton
Reanimating The Foreign Compacts Clause, Thomas Liefke Eaton
William & Mary Environmental Law and Policy Review
On October 23, 2019, the United States Department of Justice (“DOJ”) filed a complaint against the State of California “for unlawfully entering a cap and trade agreement with the Canadian Providence of Quebec.” In many ways, the complaint reflects a conventional disagreement between states and the federal government over the contours of federalism, but the complaint’s second cause of action, alleging a violation of the “Compacts Clause,” Article I, section 10(3) of the United States Constitution, is unique. The body of law and scholarship surrounding the Compacts Clause is often guesswork at best, for jurists and scholars alike, because typically …
Keeping Up: Walking With Justice Douglas, Charles A. Reich
Keeping Up: Walking With Justice Douglas, Charles A. Reich
Touro Law Review
No abstract provided.
Introduction To The Conference: Commemorating The Life And Legacy Of Charles A. Reich, Rodger D. Citron
Introduction To The Conference: Commemorating The Life And Legacy Of Charles A. Reich, Rodger D. Citron
Touro Law Review
No abstract provided.
Constitutionalizing Nature's Law: Dignity And The Regulation Of Biotechnology In Switzerland, James Toomey
Constitutionalizing Nature's Law: Dignity And The Regulation Of Biotechnology In Switzerland, James Toomey
Elisabeth Haub School of Law Faculty Publications
The Swiss Constitution was amended by referendum in 1992 to include two unique provisions: Article 119, which imposes strict limits on genetic and reproductive technologies in humans in order to protect ‘human dignity’, and Article 120, which commits the Swiss federal government to limiting genetic technologies in non-human species on the basis of the ‘dignity of the creature’. This article analyzes the role of ‘dignity’ as a limit on biotechnologies in the Swiss constitutional order. It concludes that the understanding of dignity the constitution embraces codifies a contestable metaphysical theory of value at the constitutional level. Specifically, the Swiss constitutional …
Juliana V. United States, Daniel Brister
Juliana V. United States, Daniel Brister
Public Land & Resources Law Review
In 2015, a group of adolescents between the ages of eight and nineteen filed a lawsuit against the federal government for infringing upon their civil rights to a healthy, habitable future living environment. Those Plaintiffs in Juliana v. United States alleged that the industrial-scale burning of fossil fuels was causing catastrophic and destabilizing impacts to the global climate, threatening the survival and welfare of present and future generations. Seeking to reduce the United States’ contributions to atmospheric carbon dioxide, Plaintiffs demanded injunctive and declaratory relief to halt the federal government’s policies of promoting and subsidizing fossil fuels, due to the …
Considerations Of History And Purpose In Constitutional Borrowing, Robert L. Tsai
Considerations Of History And Purpose In Constitutional Borrowing, Robert L. Tsai
Faculty Scholarship
This essay is part of a symposium issue dedicated to "Constitutional Rights: Intersections, Synergies, and Conflicts" at William and Mary School of Law. I make four points. First, perfect harmony among rights might not always be normatively desirable. In fact, in some instances, such as when First Amendment and Second Amendment rights clash, we might wish to have expressive rights consistently trump gun rights. Second, we can't resolve clashes between rights in the abstract but instead must consult history in a broadly relevant rather than a narrowly "originalist" fashion. When we do so, we learn that armed expression and white …
Introduction To Environmental Constitutionalism, Erin Daly, Louis Kotze, James R. May
Introduction To Environmental Constitutionalism, Erin Daly, Louis Kotze, James R. May
Erin Daly
No abstract provided.
New Frontiers In Environmental Constitutionalism, Erin Daly, Louis Kotze, James R. May, Caiphas Soyapi
New Frontiers In Environmental Constitutionalism, Erin Daly, Louis Kotze, James R. May, Caiphas Soyapi
Erin Daly
No abstract provided.
New Frontiers In Environmental Constitutionalism, Erin Daly, Louis Kotze, James R. May, Caiphas Soyapi
New Frontiers In Environmental Constitutionalism, Erin Daly, Louis Kotze, James R. May, Caiphas Soyapi
James R. May
No abstract provided.
Introduction To Environmental Constitutionalism, Erin Daly, Louis Kotze, James R. May
Introduction To Environmental Constitutionalism, Erin Daly, Louis Kotze, James R. May
James R. May
No abstract provided.
Sustainability And Global Environmental Constitutionalism, James R. May
Sustainability And Global Environmental Constitutionalism, James R. May
James R. May
No abstract provided.
Judicial Handbook On Environmental Constitutionalism, James R. May, Erin Daly
Judicial Handbook On Environmental Constitutionalism, James R. May, Erin Daly
James R. May
No abstract provided.
Subnational Environmental Constitutionalism And Reform In New York State, James R. May
Subnational Environmental Constitutionalism And Reform In New York State, James R. May
James R. May
The "Right" Right To Environmental Protection: What We Can Discern From The American And Indian Constitutional Experience, Deepa Badrinarayana
The "Right" Right To Environmental Protection: What We Can Discern From The American And Indian Constitutional Experience, Deepa Badrinarayana
Deepa Badrinarayana
The Devil Is In The Details: Articulating Practical Principles For Implementing The Duties In Pennsylvania's Environmental Rights Amendment, Kenneth Kristl
The Devil Is In The Details: Articulating Practical Principles For Implementing The Duties In Pennsylvania's Environmental Rights Amendment, Kenneth Kristl
Kenneth T Kristl
The Commander In Chief's Authority To Combat Climate Change, Mark P. Nevitt
The Commander In Chief's Authority To Combat Climate Change, Mark P. Nevitt
Mark P Nevitt
Climate change is the world’s greatest environmental threat. And it is increasingly understood as a threat to domestic and international peace and security. In recognition of this threat, the President has taken the initiative to prepare for climate change’s impact – in some cases drawing sharp objections from Congress. While both the President and Congress have certain constitutional authorities to address the national security threat posed by climate change, the precise contours of their overlapping powers are unclear. As Commander in Chief, the President has the constitutional authority to repel sudden attacks and take care that the laws are faithfully …
Comparative Environmental Constitutionalism, Erin Daly, James May
Comparative Environmental Constitutionalism, Erin Daly, James May
Erin Daly
As more and more countries around the globe are amending their constitutions to recognises environmental rights and duties relating to air, water, the use of natural resources, sustainability, climate change, and more, courts are increasingly engaging with these provisions and developing a common constitutional law of environmental rights. This article examines this growing jurisprudence and surveys the central axes around which debates about environmental constitutionalism revolve. First, we examine whether environmental rights are more suitably advanced at the international level or at the national level of constitutional law, as is increasingly the case; the former offers two alternatives—protecting the environment …
Robinson Township V. Commonwealth Of Pennsylvania: Examination And Implications, John Dernbach, James May, Kenneth Kristl
Robinson Township V. Commonwealth Of Pennsylvania: Examination And Implications, John Dernbach, James May, Kenneth Kristl
Kenneth T Kristl
In Robinson Township v. Commonwealth of Pennsylvania, the Pennsylvania Supreme Court held unconstitutional major parts of Pennsylvania’s “Act 13”—a 2012 oil and gas law designed to facilitate the development of natural gas from Marcellus Shale. In so doing, the Court breathed new life into Article I, Section 27 of Pennsylvania’s constitution, which creates public rights in certain environmental amenities and requires the state to “conserve and maintain” public resources “for the benefit of all the people.” This paper describes the decision, explains some of its immediate implications in Pennsylvania, and also explains its importance for public environmental rights and environmental …
Robinson Township: A Model For Environmental Constitutionalism, Erin Daly, James May
Robinson Township: A Model For Environmental Constitutionalism, Erin Daly, James May
Erin Daly
In Robinson Township v. Commonwealth of Pennsylvania, a plurality of the court held that a controversial law encouraging fracking (“Act 13”) violates the state’s constitutional Environmental Rights Amendment, the provisions of which the court held are “on par” with political rights. The decision highlights the challenges of engaging constitutional environmental provisions but demonstrates that, with sufficient creativity and commitment, meeting these challenges lies well within the bounds of judicial capability and authority. Because courts around the world are increasingly being asked to engage in environmental constitutionalism, and Robinson Township's thorough examination of the issues is instructive, not only for cases …
Constitutional Environmental Rights, Erin Daly, James R. May
Constitutional Environmental Rights, Erin Daly, James R. May
Erin Daly
Symposium On Global Environmental Constitutionalism: An Introduction And Overview, James R. May
Symposium On Global Environmental Constitutionalism: An Introduction And Overview, James R. May
James R. May
No abstract provided.
Courts Cap The "Trade": Regulation Of Competitive Markets When Courts Overturn State And Federal Cap-And-Trade Regulation, Steven Ferrey
Courts Cap The "Trade": Regulation Of Competitive Markets When Courts Overturn State And Federal Cap-And-Trade Regulation, Steven Ferrey
West Virginia Law Review
No abstract provided.
Global Environmental Constitutionalism, Erin Daly, James May
Global Environmental Constitutionalism, Erin Daly, James May
Erin Daly
No abstract provided.
Ten Good Practices In Environmental Constitutionalism: Structure, Text And Justiciability, James May, Erin Daly
Ten Good Practices In Environmental Constitutionalism: Structure, Text And Justiciability, James May, Erin Daly
Erin Daly
Environmental constitutionalism is a relatively recent phenomenon at the confluence of constitutional law, international law, human rights, and environmental law. It embodies the recognition that the environment is a proper subject for protection in constitutional texts and for vindication by constitutional courts worldwide. This White Paper posits ten “good practices” – those attributes that make effective outcomes more likely, but not assured – in environmental constitutionalism for advancing positive environmental outcomes considering energy, and governance and sustainability. Good practices in environmental constitutionalism can serve as a useful construct for considering the relationship between sustainability, energy and governance. Accordingly, Section A …
Constitution And Pollution: Federalism At Work, David R. Hodas
Constitution And Pollution: Federalism At Work, David R. Hodas
David R. Hodas
No abstract provided.
Constitutional Limitations On Sovereignty, 2014 Edition, Garrett Power
Constitutional Limitations On Sovereignty, 2014 Edition, Garrett Power
Garrett Power
This electronic book is published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland Francis King Carey School of Law. It is an “open content” casebook intended for classroom use in courses in Constitutional Law, Land Use Control, and Environmental Law. It consists of 130 odd judicial opinions (most rendered by the U.S. Supreme Court) carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. The text considers both the personal right to liberty and the personal right in property.
The …