Law Commons^™

Establishing State Responsibility In Mitigating Climate Change Under Customary International Law, Vanessa S.W. Tsang

LL.M. Essays & Theses

As acknowledged in the Paris Agreement’s Preamble, climate change is a “common concern of humankind.” To tackle the anthropogenic greenhouse gases (GHGs) at source, State governments played a pivotal role in implementing climate change policies. It thus justifies the approach of looking into the solutions to climate change from a state responsibility perspective. As mentioned by James Crawford, “[a]ny system of law must address the responsibility of its subjects for breaches of their obligations.” The finding of state responsibility in mitigating climate change will complement the treaty-based climate change regime, providing grounds for climate change litigations and policy formulation.

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Take This Job And Shove It: The Pragmatic Philosophy Of Johnny Paycheck And A Prayer For Strict Liability In Appalachia, Eugene "Trey" Moore Iii

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

Industrial Accidents, Natural Disasters And "Act Of God", Michael Faure, Liu Jing, Andri G. Wibisana

Georgia Journal of International & Comparative Law

No abstract provided.

International Liability And Primary Rules Of Obligation: An Application To Acid Rain In The United States And Canada, John B. Lyle

Georgia Journal of International & Comparative Law

No abstract provided.

The Sydney Tar Ponds Case: Shutting The Door On Environmental Class Action Suits In Nova Scotia?, Meinhard Doelle

Articles, Book Chapters, & Popular Press

The case comment provides an assessment of the recent class action case in Nova Scotia regarding the notorious Sydney Tar Ponds contaminated site. The comment considers the implications for class actions and for environmental tort law.

Potential Tort Liability For Personal Use Of Drone Aircraft., Benjamin D. Mathews

St. Mary's Law Journal

In the United States, the use of personal drones has become more prevalent. Businesses now use drones to deliver products to consumers. Consumers now use drones to video and photograph special events. As a result, new laws are needed concerning personal usage of drones. The number of drone sales is predicted to double by 2024. This is reflected by companies such as Parrot, a vendor of private drones, who in the first quarter of 2014 sold 670,000 drones. Citizens whose personal liberties have been infringed upon by another individual’s use of personal drones, often resort to common law torts because …

Chernobyl And Sandoz One Decade Later: The Evolution Of State Responsibility For International Disasters, 1986-1996, Devereaux F. Mcclatchey

Georgia Journal of International & Comparative Law

No abstract provided.

A Paralyzed Environmental Law: Critical Comments On Compensation For Environmental Damage In Indonesia, Andri Gunawan Wibisana

Andri Gunawan Wibisana

This article criticizes compensation mechanisms for the victims of environmental disaster in Indonesia. In particular, it attempts to answer the questions of how compensation mechanism is addressed in Indonesian environmental law, how the victims of environmental disasters are compensated, and what lessons can be learned from the application of law in practice. This article begins with discussions about the current Indonesian compensation system for damage resulting from pollution, focusing on the provisions in environmental management acts. In order to explain how these provisions have been applied in practice, this article discusses two major environmental disasters in Indonesia, i.e. the Mandalawangi …

An Act Of War: Finding A Meaning For What Congress Has Left Undefined, Desiree Gargano

Touro Law Review

There are often environmental concerns with any new construction project. One often unforeseen aspect of this is the liability that occurs after a building is destroyed. Property owners have generally faced strict liability for the release of hazardous waste under section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act. This Comment examines why the act of war defense has consistently failed and determines if the law places too high of a burden on property owners who assert this defense.

Paved With Good Intentions: The Fate Of Strict Liability Under The Migratory Bird Treaty Act, Kalyani Robbins

Akron Law Faculty Publications

The Migratory Bird Treaty Act (MBTA) contains a very broad ban on harming migratory birds, as well as a strict liability standard for misdemeanor violations. Without further limitation, the MBTA would theoretically apply to countless ordinary life activities, such as driving a car or having windows on one’s home. Naturally, there are due process concerns with such a scenario, so Congress expressly left it to the Department of the Interior to draft more detailed implementing regulations. Unfortunately, the existing regulations fail to adequately address the potential overbreadth of the MBTA’s misdemeanor application, forcing the courts to do so on an …

Paved With Good Intentions: The Fate Of Strict Liability Under The Migratory Bird Treaty Act, Kalyani Robbins

Faculty Publications

The Migratory Bird Treaty Act (MBTA) contains a very broad ban on harming migratory birds, as well as a strict liability standard for misdemeanor violations. Without further limitation, the MBTA would theoretically apply to countless ordinary life activities, such as driving a car or having windows on one’s home. Naturally, there are due process concerns with such a scenario, so Congress expressly left it to the Department of the Interior to draft more detailed implementing regulations. Unfortunately, the existing regulations fail to adequately address the potential overbreadth of the MBTA’s misdemeanor application, forcing the courts to do so on an …

Paved With Good Intentions: The Fate Of Strict Liability Under The Migratory Bird Treaty Act, Kalyani Robbins

Kalyani Robbins

The Migratory Bird Treaty Act (MBTA) contains a very broad ban on harming migratory birds, as well as a strict liability standard for misdemeanor violations. Without further limitation, the MBTA would theoretically apply to countless ordinary life activities, such as driving a car or having windows on one’s home. Naturally, there are due process concerns with such a scenario, so Congress expressly left it to the Department of the Interior to draft more detailed implementing regulations. Unfortunately, the existing regulations fail to adequately address the potential overbreadth of the MBTA’s misdemeanor application, forcing the courts to do so on an …

Lyon's Roar, Then A Whimper: The Demise Of Broad Arranger Liability In The Ninth Circuit After The Supreme Court's Decision In Burlington Northern, Jon-Erik W. Magnus

Golden Gate University Environmental Law Journal

This Comment will examine the development of arranger liability under Ninth Circuit jurisprudence, specifically looking at the impact of Ninth Circuit‟s decision in Burlington Northern and the impact of the Supreme Court‟s reversal. Section II of this Comment will briefly examine the mechanisms for triggering CERCLA liability, specifically the definition of arranger liability under CERCLA. Next, Section III will address arranger liability in the Ninth Circuit. Specifically, this discussion will consider “direct” arranger liability considered in Cadillac Fairview/California, Inc. v. United States, which examined when transactions constitute “arrangements for disposal,” as contrasted with Burlington Northern, which expanded and applied a …

Doling Out Environmental Justice To Nicaraguan Banana Workers: The Jose Adolfo Tellez V. Dole Food Company Litigation In The U.S. Courts, Armin Rosencranz, Stephen Roblin, Nicole Balloffet

Golden Gate University Environmental Law Journal

In this article, we will explore the circumstances that led to this landmark ruling and verdict in Los Angeles, how Judge Chaney’s rulings changed the trajectory of the case, the recent developments concerning fraud by at least one U.S. lawyer, and how all of these factors might impact the future practices of transnational corporations.

The Growing Influence Of Tort And Property Law On Natural Resources Law: Case Studies Of Coal Bed Methane Development And Geologic Carbon Sequestration, Alexandra B. Klass

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

19 pages.

"Alexandra B. Klass, Associate Professor of Law, University of Minnesota Law School"

Getting The Sand Out Of The Eyes Of The Law: The Need For A Clear Rule For Sand Suppliers In Texas After Humble Sand & (And) Gravel, Inc. V. Gomez., Victor E. Schwartz, Mark A. Behrens, Andrew W. Crouse

St. Mary's Law Journal

Health risks associated with the inhalation of silica dust have been known for a very long time. In the United States, the American Foundrymen’s Society has distributed literature addressing silica exposure hazards to its members for over 100 years. For years, litigation against industrial sand manufacturers concerning silica exposure was stable, though recently there has been a marked increase in the number lawsuits. While the number of suits continues to climb, the government reports silica-related deaths have declined dramatically. It appears plaintiffs’ attorneys are manufacturing silica claims using the same lawsuit-generating devices developed during the asbestos context. Tort law recognizes …

The Floodgates Of Strict Liability: Bursting Reservoirs And The Adoption Of Fletcher V. Rylands In The Guided Age, Jed Handelsman Shugerman

Faculty Scholarship

Part I presents an overview of Rylands v. Fletcher and then discusses the phases of the American response: the initial acceptance; the Northeastern rejections in the 1870s, which have been the basis for the erroneous scholarly conclusions; and the overlooked tide of acceptances across the country, beginning in the late 1880s and increasing in the 1890s. Part II places this wave of acceptance in its historical context of changing social forces, although these brief sketches are not the primary emphasis of this Note. First, during a period of rapid urbanization, a small number of courts sought to protect residential areas …

You Can Teach An Old Dog New Tricks: The Application Of Common Law In Present-Day Environmental Disputes, Joseph F. Falcone Iii, Daniel Utain

Villanova Environmental Law Journal

No abstract provided.

In This Corner, We Have The Bankruptcy Code's Discharge Provisions And In This Corner, Cercla, A Strict Liability Statue: In Re Reading Company, Jennifer A. Pasquarella

Villanova Environmental Law Journal

No abstract provided.

Juries Under Siege., Phil Hardberger

St. Mary's Law Journal

Beginning in the late 1980s, the Texas Supreme Court saw a slew of conservative judges elected to the bench. With this new Court, previous expansions of the law were stopped. Jury verdicts became highly suspect and were frequently overturned for a variety of reasons. Damages too did not go unnoticed. Juries’ assessments were wiped out by increasingly harsher standards. The ripple effect of the Court’s conservative philosophy on the judicial process was substantial. Jury verdicts, few as they may be, are not subject to harsh scrutiny by conscientious appellate judges sworn to follow the Texas Supreme Court’s precedent. And the …

So Long Sweetheart - State Farm Fire & (And) Casualty Co. V. Gandy Swings The Pendulum Further To The Right As The Latest In A Line Of Setbacks For Texas Plaintiffs., Timothy D. Howell

St. Mary's Law Journal

Some legal commentators would analogize the description of the prisoner of The Pit and the Pendulum to modern tort law and policy. Like a pendulum, tort law is always in motion, swinging between two ideologies: those being the plaintiff-oriented rights of the 1970s-80s, and the tort-reforms which began in the mid-80s. This trend continued until the 1990s and the decision of State Farm Fire & Casualty Co. v. Gandy where Texas plaintiffs began experiencing setbacks. The Gandy decision likely curtails the use of the “sweetheart deal” a practice, in which an insured defendant first settles with the plaintiff, then assigns …

Strict Criminal Liability For Environmental Violations: A Need For Judicial Restraint, Kepten D. Carmichael

Indiana Law Journal

No abstract provided.

Pyrrhic Victories And Glorious Defeats: Why Defendants Are Winning And Plaintiffs Are Losing The Struggle Over Actual Malice And Fictionalized Quotations., Richard A. Gonzales

St. Mary's Law Journal

This article reviews Masson v. New Yorker Magazine, a case of fabricated quotations. The article looks first at the legal background and Supreme Court's development of the actual malice standard. An analysis of the problem through journalistic ethics and investigation of the difficulties confronting libel plaintiffs will follow. Finally, the comment explores the misquotation problem from both a legal and a journalistic perspective.

Recognizing An Implied Warranty That Professional Services Will Be Performed In A Good And Workmanlike Manner., Mark L. Kincaid

St. Mary's Law Journal

Although the Court received a deluge of amicus curiae briefs after its initial ruling in Melody Home ushering the Court to reevaluate the consequences of its decision, there is no sound basis for excluding professional services from the implied warranty recognized by the Texas Supreme Court that services will be performed in a good and workmanlike manner. The issue of what is properly considered a “professional” service or what definition is to be applied to distinguish “non-professional” and “professional” services if the latter were to be excluded from the implied warranty. Instead of differentiating between “non-professional” and “professional” services in …

Liability Of Parents For Conduct Of Their Child Under Section 33.01 Of The Texas Family Code: Defining The Requisite Standards Of Culpability., L. Wayne Scott

St. Mary's Law Journal

Section 33.01 of the Texas Family Code uses archaic terms and needs to be updated to eliminate confusion. This section provides an expansive statutory avenue for recovering from the parent damages previously unavailable at common law for a child's acts. However, the extent of parental liability under both of the available statutory provisions—negligence and strict liability—is disputable. While section 33.01 currently uses the terms "willful" and "malicious," these terms should be excluded in favor of "intentional" and "grossly negligent conduct." In an age when tort liability is determined more from an insurance theory than a fault theory, section 33.01 of …

Expanding The Negligence Concept: Retreat From The Rule Of Law, James A. Henderson Jr.

Cornell Law Faculty Publications

No abstract provided.