Environmental Law Commons^™

Lincoln V. The Proslavery Constitution: How A Railroad Lawyer's Constitutional Theory Made Him The Great Emancipator., Paul Finkelman

St. Mary's Law Journal

Abstract Forthcoming.

Indemnification Agreements For Intentional Misconduct: Balancing Public Policy And Freedom To Contract In Texas., Meagan Mckeown

St. Mary's Law Journal

Abstract Forthcoming.

Adversarial Science, Sanne H. Knudsen

Articles

Adversarial science—sometimes referred to as "litigation science" or "junk science"—has a bad name. It is often associated with the tobacco industry's relentless use of science to manufacture uncertainty and avoid liability. This Article challenges the traditional conception that adversarial science should be castigated simply because it was developed for litigation. Rather, this Article urges that adversarial science is an important informational asset that should, and indeed must, be embraced.

In the ecological context, adversarial science is vital to understanding the ecological effects of long-term toxic exposure. Government trustees and corporate defendants fund intensive scientific research following major ecological disasters like …

Clean Water Act, Section 404 Applicants: May The Odds Be Ever In Your Favor, Jason Bailey

American University Business Law Review

No abstract provided.

Sustainable Development And The Brazilian Judge, Gabriel Wedy

Sabin Center for Climate Change Law

This article explores how Brazilian judges have used their authority to promote the environmental, social, economic, and, in particular, governance aspects of sustainable development. Through their decisions, judges have guaranteed Brazilian citizens important rights, which are stated in the progressive Constitution of 1988, drawn up after 20 years of military dictatorship. The citizen’s rights to medical treatment, medicine, surgery, housing and access to education are frequently guaranteed by judicial decisions.

Gradually Exploded: Confrontation Vs. The Former Testimony Rule., Tim Donaldson

St. Mary's Law Journal

Observing live court testimony allows a jury to determine witness credibility. This is called demeanor evidence. Allowing the introduction of transcripts of prior testimony by a witness offends a defendant's right to confrontation guaranteed by the Sixth Amendment of the United States Constitution. Loss of demeanor evidence can heighten sensitivity surrounding the constitutional demands of unavailability and an opportunity for cross-examination. But the loss of this evidence is discounted when dealing with the admissibility of prior testimony as long as a defendant was formerly afforded an opportunity to cross-examine. Demeanor evidence, however, is still treated as a non-essential component of …

Sovereign Immunity: The Texas Department Of Transportation's Duty To Maintain Roadways Ravaged By The Eagle Ford Shale Boom., Lasca A. Arnold

St. Mary's Law Journal

While the shale boom has brought about many positive results such as economic growth and new jobs to the Eagle Ford Shale region, the ravaged roadways left in the aftermath must be addressed. The demands for equipment and manpower created by oil and gas exploration are extensive. Sadly, the Texas Department of Transportation (TxDOT)—the entity charged with maintaining and repairing roads in these affected counties—refuses to supply sufficient funding to repair the over used roadways. This pressure is exerted in rural areas where most of the roads and bridges are designed for lower volumes of traffic. In addition to the …

Agreements To Alter The Limitation Period Imposed By U.C.C. Section 2-725: Some Overlooked Complications., Gregory Crespi

St. Mary's Law Journal

Abstract Forthcoming.

The Economic Loss Doctrine As An Obstacle To Claims Of Contractual Strangers., Richard L. Reed, Richard L. Reed Jr.

St. Mary's Law Journal

Home owners, contractors, and subcontractors entering a contract to build in accordance with another’s design must be aware of their respective risks under the economic loss doctrine. The economic loss doctrine bars recovery due purely to economic loss by a party that is a contractual stranger. In a typical construction contract, a homeowner may separately contract with a contractor and a design professional. In this situation, the contractor does not have privity with the design professional and the economic loss doctrine bars the contractor from suing the design professional for economic loss. Likewise, if the homeowner hires a contractor and …

Cueing Democracy: Replacing The Texas Election Code's Title Prohibition., Christopher M. Childree

St. Mary's Law Journal

Abstract Forthcoming.

Anti-Retaliation Protection For Internal Whistleblowers Under Dodd-Frank Following The Fifth Circuit Decision In Asadi., Tapas Agarwal

St. Mary's Law Journal

Abstract Forthcoming.

The Ancient Magna Carta And The Modern Rule Of Law: 1215 To 2015., Vincent R. Johnson

St. Mary's Law Journal

This article argues the text of the Magna Carta, now 800 years old, and reflects many of the values that are at the center of the modern concept of the Rule of Law. A careful review of its provisions reveals the Magna Carta demonstrates a strong commitment to the resolution of disputes based on rules and procedures that are consistent, accessible, transparent, and fair; and to the development of a legal system characterized by official accountability and respect for human dignity.

A Constitutional Amendment Allowing Broader Campaign-Finance Reform Would Not Criminalize Political Satire., Christopher W. Bell

St. Mary's Law Journal

Campaign finance remains a perennial issue, because contributions and expenditures define the political campaigns which shape our democracy. While a majority of the American public supports limiting campaign spending, campaign finance reform remains near the bottom of most voters’ priorities. Reformers have called the lack of the public’s interest “[o]ne of the persistent mysteries of campaign finance reform.” Citizens United v. F.E.C. focused national attention on the role of money in politics. Citizens United evoked such strong reactions, because it represents the two competing versions of the concept of freedom of speech: “free speech as serving liberty” and “free speech …

Resolving Drug Manufacturer Liability For Generic Drug Warning Label Defects., Frank Scaglione

St. Mary's Law Journal

Although generic drugs are beneficial to consumers because they are offered as a more cost effective alternative to brand-name prescriptions, brand-name manufacturers are vulnerable to potential lawsuits because of generic drugs. Under the Drug Price Competition and Patent Term Restoration Act of 1984 (Hatch-Waxman Act), generic manufacturers are able to quickly enter the market following the termination of a brand-name drug’s patent. As a result of the Hatch-Waxman Act, 75% of all drugs on the market are generic. The Hatch-Waxman Act, however, also requires generic drug manufacturers to duplicate the brand-name drug’s warning label. As an unintended consequence, injuries have …

Texas Inventory Tax: Appraisal Districts' Misunderstanding Of The Law Causing Texas Retailers To Pay The Price., Timothy Johnson

St. Mary's Law Journal

Abstract Forthcoming.

Employee Recourses To Manager-Revealed Private Health Information., Molly Thomson

St. Mary's Law Journal

Abstract Forthcoming.

Revenge Pornography: Exploring Tortious Remedies In Texas., Kevin B. Bennett

St. Mary's Law Journal

Abstract Forthcoming.

How Mccullen Affects San Antonio's Anti-Panhandling Ordinance., Christopher M. Childree

St. Mary's Law Journal

Abstract Forthcoming.

Eco-Environmental Risk Management, Jonathan B. Wiener

Faculty Scholarship

No abstract provided.

Greenhouse Gas Mitigation Measures In The United States Electric Power Industry, Joel B. Eisen

Law Faculty Publications

This chapter addresses greenhouse gas (GHG) mitigation measures in the US energy sector, and, specifically, those applying to the US electric power industry. The focus is on the systems of federal, state, regional, and local regulation of GHG emissions associated with electricity generation, transmission and distribution, concentrating on the regulatory trends likely to have the largest impacts on mitigating GHG emissions. In addition, this section will discuss the extent to which these systems of regulating GHG emissions have evolved over the past decade.

What Can Be Done, If Anything, About The Dangerous Penchant Of Public Trust Scholars To Overextend Joseph Sax’S Original Conception: Have We Produced A Bridge Too Far?, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

This Article examines the tendency of many legal scholars to overextend the scope of a previous scholar’s original idea—in this case, Professor Joseph Sax’s reconceptualization of the largely moribund common law public trust doctrine. Legal scholars are induced to write immoderately either to enhance their standing within the academic community or, more selflessly, to achieve law reform. These expansionist tendencies, however, are not without risk—a common law doctrine that becomes too unmoored from its historical shackles may lose the support of the courts that is required for its implementation. The Article examines whether a combination of academic norms and hortatory …

Distributed, Nega-, And Reclaimed: Setting Expectations In The "New" Resource Base, Michael Pappas

Publications

No abstract provided.

Defining Power Property Expectations, Michael Pappas

Publications

No abstract provided.

Rethinking The Geography Of Local Climate Action: Multilevel Network Participation In Metropolitan Regions, Hari M. Osofsky

Utah Law Review

As the United States and the world become increasingly urbanized, cities are a key site for addressing the problem of climate change. However, urban climate change action is not simply about local officials making decisions within their cities. In major U.S. urban areas, “local” involves multiple layers of government, including county and metroregional entities. Moreover, many of the cities taking action on climate change also participate in and shape networks of local governments based at state, regional, national, and international levels.

This Article argues that multilevel climate change networks could be more effective by embracing this geography of local action …

Environmental Privacy, Katrina F. Kuh

Utah Law Review

The purpose of this Article is not to anticipate whether or how the Fourth Amendment might apply to specific efforts to collect information about environmentally significant individual behaviors. The purpose is to discern the considerations that have proven salient in balancing environmental regulation and privacy to date that may likewise be relevant to navigating privacy concerns that arise with respect to policy directed to environmentally significant individual behaviors.

In this regard, the Article’s survey suggests that neither the fact that environmentally significant individual behaviors must be aggregated to produce environmental harm nor the fact that individuals, as opposed to commercial …

America’S Forgotten Nuclear Waste Dump In The Pacific, Michael B. Gerrard

Faculty Scholarship

During the Cold War the United States detonated sixty-seven nuclear weapons over the atolls of Bikini and Enewetak in the Marshall Islands. In the late 1970s the United States addressed the massive amount of residual contamination by abandoning Bikini as permanently uninhabitable and pushing much of the waste at Enewetak into the open lagoon. Much of the plutonium was dumped into the crater that had been left by an atomic bomb explosion, and then covered with a thin shell of cement. The resultant “Runit dome” sits unmarked and unguarded in a small island and one day will be submerged by …

How Local Discrimination Can Promote Global Public Goods, Timothy Meyer

Faculty Scholarship

International negotiations struggle to keep pace with global problems like climate change. To fill this gap, local governments increasingly take matters into their own hands. For example, to promote the benefits of clean energy, a local government might give subsidies to renewable energy companies. Since 2001, California has given $2 billion in such subsidies, while states ranging from Minnesota to Kansas and Mississippi have doled out hundreds of millions of dollars each. Cities, such as Austin and Los Angeles, have also gotten into the act, contributing millions to renewable energy firms. To build support for these measures, the local government …

The Integration Of Environmental Law Into International Investment Treaties And Trade Agreements: Negotiation Process And The Legalization Of Commitments, Madison Condon

Faculty Scholarship

There were seventeen international investment agreements (“IIAs”) signed around the world in 2012, and each one of them contained some provision relating to the protection of the environment. In comparison, no investment treaty signed before 1985, and fewer than ten percent of treaties signed between 1985 and 2001, contained any reference to the environment at all. Environmental language has become increasingly common in bilateral investment treaties (“BITs”), and to an even greater degree in other IIAs, such as free trade agreements (“FTAs”). The legal implications of the integration of environmental law and norms into investment law treaties have yet to …