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Full-Text Articles in Law
U.S. Supreme Court Environmental Cases 2008-2009: A Year Like No Other, James R. May
U.S. Supreme Court Environmental Cases 2008-2009: A Year Like No Other, James R. May
James R. May
The author of this article says the last term of the U.S. Supreme Court was in many respects like no other in modern environmental law. During the 2008-2009 term, the Supreme Court ruled on novel and important questions concerning preliminary injunctions under the National Environmental Policy Act; cost-benefit analyses and permitting under the Clean Water Act; arranger and joint and several liability under the Comprehensive Environmental Response, Compensation, and Liability Act; and environmental standing. At no turn, says the author, did the court favor the environment over other interests. He says the court even reached down to reverse decisions in …
Ideological Plaintiffs, Administrative Lawmaking, Standing And The Petition Clause, Karl S. Coplan
Ideological Plaintiffs, Administrative Lawmaking, Standing And The Petition Clause, Karl S. Coplan
Elisabeth Haub School of Law Faculty Publications
In the 1992 Lujan v. Defenders of Wildlife decision, Justice Scalia declared that business interests subject to regulation had automatic standing to challenge regulations in court, but that where “the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish.” This article explores the impact this differential standard for court access has on ideologically-motivated public interest plaintiffs, and suggest heightened scrutiny of standing rules under the Petition Clause of the First Amendment based on the viewpoint differential effect of current standing doctrine. This …
Procedural And Judicial Limitations On Voir Dire - Constitutional Implications And Preservation Of Error In Civil Cases., R. Brent Cooper, Diana L. Faust
Procedural And Judicial Limitations On Voir Dire - Constitutional Implications And Preservation Of Error In Civil Cases., R. Brent Cooper, Diana L. Faust
St. Mary's Law Journal
The right to a trial by jury is meaningless without an effective voir dire. Recurring tort reform, rapid technological advancements, immediate access to media coverage of incidents that give rise to litigation have greatly expanded. Consequentially, courts are faced with the prospect that potential jurors’ opinions and attitudes have been tainted. In addition to these issues, trial courts display significant interest in promptly expediting the advancement of their dockets. Voir dire is an essential element of trial strategy. Voir dire allows counsel to establish rapport with potential jurors, introduce them to the issues and facts of the case, and identify …
Texas Law's Life Or Death Rule In Capital Sentencing: Scrutinizing Eight Amendment Violations And The Case Of Juan Guerrero, Jr., John Niland, Riddhi Dasgupta
Texas Law's Life Or Death Rule In Capital Sentencing: Scrutinizing Eight Amendment Violations And The Case Of Juan Guerrero, Jr., John Niland, Riddhi Dasgupta
St. Mary's Law Journal
The United States Supreme Court has never explained the Eighth Amendment’s impact in noncapital cases involving a mentally retarded or brain-injured defendant. The Court has not provided guidance to legislatures or lower courts concerning the acceptable balancing of aggravating and mitigating factors and the role that mitigating factors must play in the sentencing decision. A definitive gap exists between the protections afforded to a criminal defendant facing a life sentence as opposed to those confronted with the death penalty. The Court requires sentencing procedures to consider aggravating and mitigating factors, including mental retardation and brain damage, when imposing a death …
Vindicating Fundamental Environmental Rights: Judicial Acceptance Of Constitutionally Entrenched Environmental Rights, James May, Erin Daly
Vindicating Fundamental Environmental Rights: Judicial Acceptance Of Constitutionally Entrenched Environmental Rights, James May, Erin Daly
Erin Daly
This article examines the extent to which constitutionally embedded fundamental environmental rights have met the promise of ensuring a right to an adequate environment. It explains these results and suggests ways to neutralize judicial resistance to these emerging constitutional rights. In Part II we explain the prevalence of constitutionally entrenched rights to a quality environment. In Part III, we provide examples of the extent to which courts have enforced these provisions. In Part IV, we examine institutional and structural factors, conceptual disjunctions, and pragmatic considerations that help to explain judicial receptivity to constitutionally entrenched environmental rights. And in Part V …
Vindicating Fundamental Environmental Rights: Judicial Acceptance Of Constitutionally Entrenched Environmental Rights, James R. May, Erin Daly
Vindicating Fundamental Environmental Rights: Judicial Acceptance Of Constitutionally Entrenched Environmental Rights, James R. May, Erin Daly
James R. May
This article examines the extent to which constitutionally embedded fundamental environmental rights have met the promise of ensuring a right to an adequate environment. It explains these results and suggests ways to neutralize judicial resistance to these emerging constitutional rights. In Part II we explain the prevalence of constitutionally entrenched rights to a quality environment. In Part III, we provide examples of the extent to which courts have enforced these provisions. In Part IV, we examine institutional and structural factors, conceptual disjunctions, and pragmatic considerations that help to explain judicial receptivity to constitutionally entrenched environmental rights. And in Part V …
Constitutional Law And The Future Of Natural Resource Protection, James R. May
Constitutional Law And The Future Of Natural Resource Protection, James R. May
James R. May
This is a chapter of a recently published book that examines how constitutional law shapes natural resources law in the United States. Following a brief background, part I identifies and discusses the various constitutional law developments affecting the scope of Congress’s power to regulate the use of natural resources. It focuses primarily on the Commerce Clause (in conjunction with the corresponding case study) and the concomitant extrinsic limits on such authority, including principles of federalism and the Tenth Amendment, as well as the diminished Nondelegation doctrine. Part II does the same for state authority and the dormant Commerce and Supremacy …
The Intersection Of Constitutional Law And Environmental Litigation, James R. May
The Intersection Of Constitutional Law And Environmental Litigation, James R. May
James R. May
The U.S. Constitution propels the majority of environmental litigation. Thirty years ago, constitutional issues seldom arose in environmental law. Nowadays, nearly two in three federal environmental, energy and land use cases are litigated on constitutional grounds. Such cases implicate approximately twenty constitutional principles involving federalism, separation of powers and individual rights. Constitutional issues in environmental litigation are torn from the headlines, from climate change to natural resource extraction. Accordingly, this chapter aims to contextualize constitutional litigation for environmental lawyers in five ways. Part One provides a brief background to environmental litigation in the United States. Part Two addresses how constitutional …