Social and Behavioral Sciences Commons^™

Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel

Nehal A. Patel

AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …

Mindful Justice: The Search For Gandhi’S Sympathetic State After Bhopal, Nehal A. Patel

Nehal A. Patel

One of the most startling examples of unmitigated disaster occurred in Bhopal, India, in 1984, when a Union Carbide pesticide plant exploded tons of methyl isocyanate into the air, killing 3800 people overnight. 30 years later, the plant site has not been remediated, and the estimated death toll from the explosion now has reached over 20,000. Disaster victims repeatedly have sought relief directly from the government. Yet, the Indian and US governments and Union Carbide have refused to provide the necessary resources for proper remediation. In this Article, I examine the state’s response to the Bhopal disaster using the thought …

Governing For The Corporations: History And Analysis Of U.S. Promotion Of Foreign Investment, Michael R. Miller

Michael R Miller

This paper explores and analyzes U.S. government support for foreign investors, especially major oil companies.

Throughout the 20th Century the US government has repeatedly used its international political influence to benefit US corporate activities abroad. The US government and others assumed initially that this was in the larger interests of the United States because US companies would represent and promote the United States’ policy agenda.

However, US corporate activities abroad over the last century seem to indicate this assumption was flawed. In numerous examples, US corporations have either ignored or thwarted the stated interests of the US government. At first …

Complexity And Simplicity In Law: A Review Essay (Cass R. Sunstein, Simpler: The Future Of Government (2003)), David M. Driesen

David M Driesen

This essay discusses Cass Sunstein’s book, Simpler: The Future of Government, in order to advance our understanding of the concepts of complex and simple law. Many writers identify complexity with uncertainty and high cost. This essay argues that complexity bears no fixed relationship to costs or benefits. It also shows that complexity’s relationship to uncertainty is so ambiguous that it is profitable to treat complexity and uncertainty as separate concepts. It develops useful separate concepts of legal and compliance complexity that will aid efforts to simplify law, like the one Sunstein claims to have embarked upon. It also argues that …

Revisiting Curd V. Mosaic Fertilizer, Llc. A Perversion Of Private Standing Under Section 376.313 Of Florida’S Pollution Discharge Prevention And Recovery Act, Levi L. Wilkes

Levi L Wilkes

No abstract provided.

Preventing Cold War: Militarization In The Southernmost Continent And The Antarctic Treaty System's Fading Effectiveness, Dillon A. Redding

Dillon A Redding

This note argues that the preservation of Antarctica for peaceful research and internationally cooperative activity as envisioned originally by the Antarctic Treaty in 1961 has gone unrealized amid growing international interest in the strategic advantages offered by Antarctica, including the possibility of large swathes of mineral deposits and optimal locations for satellite stations. Part 1 describes the motivations behind the Antarctic Treaty System (ATS) and outlines the relevant provisions of the Antarctic Treaty. Part 2 examines the military advantages to a state presence in Antarctica and the ways in which the ATS allows for such a presence to be carried …

C(R)Ap And Trade: The Brave New World Of Non-Point Source Nutrient Trading And Using Lessons From Greenhouse Gas Markets To Make It Work, Victor B. Flatt

Victor B Flatt

After several decades of improvement, water quality in the United States is getting worse, and the problem is primarily caused by run-off from non-point sources, such as farms and urban development. These non-point sources have never had regulatory mandates in the Clean Water Act, and have proven very difficult to control. With little likelihood of comprehensive statutory changes, the EPA and the states that administer the Clean Water Act have looked to other regulatory means to address this problem. One of the most prominent has been the use of markets in pollution (particularly for nutrient pollution from run-off) to provide …

Industrial Hemp: Canada Exports, United States Imports, Courtney N. Moran Ll.M.

Courtney N. Moran LL.M.

Industrial hemp, a non-psychoactive variety of Cannabis sativa L., (C. sativa) is the greatest renewable resource available to mankind. Industrial hemp is an environmentally friendly crop that does not require herbicides or pesticides and can clean up toxins in soil. Manufacturers can produce hemp into over 25,000 products.

More than 30 industrialized nations, including Canada, cultivate industrial hemp for commercial purposes. Despite the fact that industrial hemp is a viable agricultural commodity, in the United States hemp is classified as marihuana, a Schedule I controlled substance, under the Controlled Substances Act (CSA). Therefore, it is illegal under U.S. federal law …

Green Building Geography Across The United States: Does Governmental Incentives Or Economic Growth Stimulate Construction?, Darren Prum, Tetsuo Kobayashi

Darren A. Prum

As green building activity continues to rise across the country, some state governments decided to create incentives that would motivate developers to voluntarily pursue third party certification for their real estate projects in order to assist in meeting sustainability and environmental goals. Despite the growing number of studies in green buildings, the geography of green buildings and sustainable construction only includes a few studies, which emphasize the lack of green building research from the spatial perspective and their relevance to public policies the lack of green building research from the spatial perspective and their relevance to public policies. This study …

The Commons, Capitalism, And The Constitution, George Skouras

George Skouras

Thesis Summary: the erosion of the Commons in the United States has contributed to the deterioration of community and uprooting of people in order to meet the dynamic demands of capitalism. This article suggests countervailing measures to help remedy the situation.

Regulatory Takings: Survey Of A Constitutional Culture, James Valvo

James Valvo

Fifth Amendment property protections under the Takings Clause have grown increasingly contentious as governing entities have used regulations to limit what property owners can do with their land. This paper profiles regulatory takings jurisprudence from Pennsylvania Coal, to Penn Central, to Nollan and Dolan, and Tahoe-Sierra. The paper also examines conceptual constructs that have shaped the field’s evolution, including: the doctrine’s origin, the nuisance exception, the changed circumstances argument, unconstitutional conditions, temporary takings and the denominator problem.

Do Not Disturb: A Practical Guide For What Not To Do Around Cemeteries And Human Remains For The Louisiana Energy And Land Use Practitioner, Ryan M. Seidemann

Ryan M Seidemann

No abstract provided.

How Do We Deal With All The Bodies? A Review Of Recent Cemetery And Human Remains Legal Issues, Ryan M. Seidemann

Ryan M Seidemann

No abstract provided.

Could You Repeat That Please? Forty-Five Years Of Testing Pesticides On People, Barbara R. Leiterman Esq.

Barbara R. Leiterman Esq.

Little has been published in the literature about pesticide experiments conducted on human subjects. Yet there were at least twenty-two tests between 1967 and 2011 in which people were intentionally exposed to specific doses of pesticides. Almost all of these experiments violated scientific ethics and human rights. This article aims to describe those tests and their shortcomings, and explore the laws and regulations that incentivize such human experimentation. Ironically, as the public desire for pesticide safety increases, so does the industry’s motivation to test pesticides on people. Bringing these pesticide experiments to light, expanding the public discourse on the subject …

Global Adversarial Legalism: The Private Regulation Of Fdi As A Species Of Global Administrative Law, Ariel Meyerstein

Ariel Meyerstein, JD, PhD

This article explores the theoretical paradigm I refer to as “global adversarial legalism,” building on Robert Kagan’s description of the American legal system. Adversarial legalism has also been explained as a governance strategy deployed by the relatively weak central governance institutions of the European Union as a means of spreading EU law. It usefully captures the fragmented political authority and relatively weak hierarchical control of the global governance, or lack thereof, of foreign direct investment.

One facet of this global adversarial legalism, already much debated, is the concern that investment arbitration tribunals exercise an overly broad and perhaps illegitimate form …

Our Own Private Sustainable Community: Are Green Covenants, Conditions, And Restrictions A Viable Alternative To A More Environmentally Sustainable Future For Homeowners?, Darren Prum, Robert Aalberts

Darren A. Prum

Residential and commercial property owners have sought for centuries to develop and enrich their physical environment through private land use planning. In more recent decades, residential owners residing in community interest communities have been particularly active in crafting an evolving array of deed restrictions contained in Covenants, Conditions and Restrictions( CC&R’s). CC&R’s, which are generally created by the CIC developer , are mutually binding and enforceable against all those who live or conduct business in self-selected residential subdivisions or commercial developments . Importantly, CC&R’s are monitored sometimes quite forcefully, under the watchful eye of an empowered planned development association.

Although …

American Stewardship: A Path Already Laid (Conference Draft), Colin W. Maguire

Colin W. Maguire

The United States of America continues to be a global leader in many economic and social areas. However, the environmental movement has been given a lukewarm response in America. Far from being a global leader, the United States lags behind in the implementation of green building technology, efficient automobile use, and renewable energy technology. It is a tragedy that is slowly being addressed but one that is often an issue divided along political lines. American conservatives, whether calling themselves Republicans, Libertarians, or Independents, often lament the progressive underpinnings of the green movement and fail to give full support to green …

In Third Parties We Trust? The Growing Antitrust Impact Of Third-Party Green Building Certification Systems For State And Local Governments, Darren Prum, Robert Aalberts, Stephen Del Percio

Darren A. Prum

According to the American Institute of Architects, there has been a 50 percent increase in the number of municipalities with a green building program in place since 2007. And 24 of the country's 25 largest metropolitan areas are built around a city with green building legislation on its books. Reducing buildings' environmental impact is a noble - and critical - goal. But governments' reliance on private, third-party standard-setting organizations - and the rating systems that they promulgate - as the basis for that legislation may be legally problematic.

This Article reviews one of those potentially problematic bases: antitrust. In order …

International Law, State Sovereignty And Transboundary Waters, Aguinaldo Alemar

Aguinaldo Alemar

The current status of transboundary water resources is to claim a more proactive posture by the sovereign states, mainly those having large reserves of fresh water shared. This new posture involves actions between the states as a key condition to the success of any enterprise that aims to protect the environment. It intends to prove that other actors - national and international - are already mobilizing themselves to consider water as a "common heritage of mankind" and, as such, water must be considered above the classical concepts of sovereignty and territory, excelling by the humanitarian interest that it arouses. At …

Framing Water Policy In A Carbon Affected And Carbon Constrained Environment, Noah D. Hall, Robert H. Abrams

Noah D Hall

Climate change driven by greenhouse gas emissions is substantially altering water availability while increasing water demand. Shifts in domestic energy policy and production, while needed to confront the challenge of climate change, may further stress the nation’s water resources. These changes and new demands will be most severe in regions that are already experiencing water stresses and conflicts. This article examines the extent of the changes in water supply and demand by assessing how water conflicts will be addressed in the four overarching water use categories: water for population security, water for ecological security, water for energy security, and water …

Political Externalities, Federalism, And A Proposal For An Interstate Environmental Impact Assessment Policy, Noah D. Hall

Noah D Hall

Interstate environmental harms, which occur when decisions or actions in one state produce negative environmental impacts in another state, have challenged environmental law and American federalism for over a century. While even the strongest advocates of state primacy in environmental policy concede that interstate environmental harms necessitate federal governance, federal adjudication and regulation have done little to address the problem. This is due, in part, to a failure to fully understand the causes of interstate environmental harms. This article provides a new framework for understanding interstate environmental harms as political externalities caused by a combination of inadequate information, public process …

Climate Change And Freshwater Resources, Noah D. Hall, Bret B. Stuntz, Robert H. Abrams

Noah D Hall

The Earth’s climate is warming. This is the unequivocal conclusion of climate scientists. Despite the complexities of climatology, certain consistent trends emerge with implications for water availability: as the world gets warmer, it will experience increased regional variability in precipitation, with more frequent heavy precipitation events and more susceptibility to drought. These simple facts will have a profound impact on freshwater resources throughout the United States, as the warmer climate will reduce available water supplies and increase water demand. Unfortunately, current water law and policy are not up to the new challenges of climate change and resulting pressures on freshwater …

Climate Change And Carbon Sequestration: Assessing A Liability Regime For Long-Term Storage Of Carbon Dioxide, Alexandra B. Klass, Elizabeth J. Wilson

Alexandra B. Klass

As the nation struggles with how to address climate change, one of the most significant questions is how to reduce increasing levels of carbon dioxide in the atmosphere. One promising technology is carbon capture and sequestration (“CCS”), which consists of capturing carbon dioxide emissions from power plants and industrial sources and sequestering them in deep geologic formations for long periods of time. Areas for potential CO2 sequestration include oil and gas fields, saline aquifers, and coal seams. As Congress and the private sector begin to spend billions of dollars to research and deploy this technology, there has been insufficient attention …

The Evolving Role Of Citizens In United States-Canadian International Environmental Law Compliance, Noah D. Hall

Noah D Hall

Citizen participation is critical in environmental law compliance. While citizens often have a major role in advancing compliance with domestic environmental law, citizens have historically had a much more limited role in international environmental law. However, a new model is emerging North America. The role of citizens in United States-Canadian international environmental law compliance has expanded greatly over the past several decades. Beginning in the 1970’s with increased public participation in binational governance agreements and expanding in the past two decades to formal roles in monitoring implementation of international environmental agreements, citizen participation is now central in the United States-Canadian …

Transboundary Pollution: Harmonizing International And Domestic Law, Noah D. Hall

Noah D Hall

Addressing transnational pollution requires both international and domestic law. Transnational pollution is an international problem that demands and deserves the attention of international legal mechanisms such as treaties, agreements, arbitration, and international management and governance. At the same time, transnational pollution problems can often be addressed more effectively and efficiently through the domestic legal system. An ideal approach is to harmonize transnational pollution management and dispute resolution under international and domestic law. This article seeks to provide pragmatic, feasible, and politically realistic solutions to transnational pollution by harmonizing international and domestic law. However, given the diversity in geography, domestic legal …

Bilateral Breakdown: U.S. – Canada Pollution Disputes, Noah D. Hall

Noah D Hall

The United States and Canada have one of the strongest bilateral relationships in the world, and the history of cooperation and diplomacy on environmental matters has been a major part of their relationship. However, as some recent efforts to resolve U.S.- Canadian pollution disputes through diplomacy and international law have failed, environmental advocates have looked to domestic litigation in U.S. courts to vindicate their rights. Is this a welcome development for environmental protection or a troubling trend for bilateral diplomacy? This essay explores the recent developments with a historical perspective and provides some recommendations for balancing the competing interests of …

Toward A New Horizontal Federalism: Interstate Water Management In The Great Lakes Region, Noah D. Hall

Noah D Hall

This article presents a new model for environmental policy, called cooperative horizontal federalism. The cooperative horizontal federalism approach utilizes a constitutional mechanism for states to bind themselves to common substantive and procedural environmental protection standards, implemented individually with regional resources and enforcement. Here, the concept of cooperative horizontal federalism model is illustrated through the recently proposed Great Lakes-St. Lawrence River Basin Water Resources Compact. Under this proposed compact, the eight Great Lakes states would cooperatively manage the world’s largest freshwater resource under common minimum standards, which are then incorporated into state law and implemented individually. This cooperative horizontal federalism approach …

Protecting The Public Trust And Human Rights In The Great Lakes, Melissa K. Scanlan

Melissa K. Scanlan

No abstract provided.

The Evolution Of The Public Trust Doctrine And The Degradation Of Trust Re- Sources: Courts, Trustees And Political Power In Wisconsin, Melissa K. Scanlan

Melissa K. Scanlan

The public trust doctrine is rooted in ancient Roman law and the Wisconsin Constitution. Ancient Roman jurists be- lieved that the natural law concept that the waters are common to all was not subject to the changing whims of legis- latures. Similarly, modern theorists assert that a constitutionally-based doctrine will be more insulated from politics. This Comment demonstrates the limits of these theories. The trust doctrine is not immutable. Based on interviews with the trustees of Wisconsin's water resources, this Comment uncovers the constraints on the trustees. It shows that trust resources are at risk due to politically-motivated decisions and …

The Hazardous Waste Land, Jerry L. Anderson

Jerry L. Anderson

This article was one of the first comprehensive critiques of the Superfund remediation and liability system. The article addresses systemic problems with the CERCLA mechanism that result in inequity and slow the pace of cleanups.