June 1st, 2009
The latest issue of Lewis & Clark Law School’s Environmental Law Review is now out.
Here are the articles published in Volume 39, Issue 2 of Environmental Law Review, complete with links to the abstracts and full-text articles:
Essays
Articles
Comments
New L&C Law Scholarship is a regular feature of BoleyBlogs! Here we announce new content from the Law Reviews of Lewis & Clark Law School, along with the latest publishing ventures of our own faculty, students and staff.
June 1st, 2009
Christopher H. Schroeder, Global Warming and the Problem of Policy Innovation: Lessons From the Early Environmental Movement, 39 Environmental Law Review 285 (2009)
When Congress enacted major environmental statutes in the late 1960s and early 1970s, these laws defied the conventional logic of public choice theory, which contends that legislation benefiting the general public against the special interests will seldom succeed. The persistent federal stalemate on environmental policy innovation during many of the intervening years is much more consistent with this public choice logic. Today we are facing the need for significant environmental policy innovation once again, especially with regard to the problem of global warming and climate change. The questions worth asking are whether we can identify the factors that once made policy innovation possible in the late 1960s and early 1970s and if those factors can be produced once again. This Essay identifies the important factors that create conditions conducive to the required policy innovation, and argues that conditions are not yet comparable, although that may change.
(abstract from Environmental Law Review)
June 1st, 2009
Andrew P. Morriss & Benjamin D. Cramer, Disestablishing Environmentalism, 39 Environmental Law Review 309 (2009)
The debate over environmental policy is increasingly conducted in language with strong religious overtones and religious imagery pervades many environmental debates. In this Article, the authors engage in a thought experiment, arguing that there are valuable lessons to be learned from treating environmentalism as if it were subject to the First Amendment?s prohibition on laws “respecting the establishment of religion.” In particular, the consideration of the economics of the Establishment Clause offers insights into how to structure environmental policies to improve environmental quality.
(abstract from Environmental Law Review)
June 1st, 2009
Kristina G. Fisher, The Rhino in the Colonia: How Colonias Development Council v. Rhino Environmental Services, Inc. Set a Substantive State Standard for Environmental Justice, 39 Environmental Law Review 397 (2009)
This Article examines a recent New Mexico Supreme Court decision holding that the New Mexico Environment Department must consider environmental justice factors in deciding whether to grant permits to solid waste facilities. This decision, and the revised solid waste regulations that were developed in response to it, offer useful lessons for other states seeking to incorporate environmental justice considerations into their own environmental laws.
(abstract from Environmental Law Review)
June 1st, 2009
William Woodyard & Glenn Boggs, Public Outcry: Kelo v. City of New London - A Proposed Solution, 39 Environmental Law Review 431 (2009)
This Article focuses on the United States Supreme Court decision in Kelo v. City of New London. It discusses the extensive public, political and academic reactions to Kelo, and makes suggestions for potential improvement in the jurisprudence of eminent domain law when private property is taken for public use in an economic redevelopment plan.
(abstract from Environmental Law Review)
June 1st, 2009
Mark W. Wilson, Why Private Remedies for Environmental Torts Under the Alien Tort Statute Should Not Be Constrained by the Judicially Created Doctrines of Jus Cogens and Exhaustion, 39 Environmental Law Review 451 (2009)
This Comment examines the history of the Alien Tort Statute, a provision of the Federal Judiciary Act of 1789, and demonstrates how it may be used as a jurisdictional tool allowing alien plaintiffs to sue private defendants in federal court for environmental torts occurring abroad when locally available remedies are weak or nonexistent. Over time, application of the Alien Tort Statute has expanded from torts against the person, such as piracy and torture, to its application to a pure environmental tort under customary international law in the ongoing Ninth Circuit case Sarei v. Rio Tinto, PLC. The Comment specifically argues that the judicially imposed doctrines of jus cogens and exhaustion of remedies lack a historical basis in the Alien Tort Statute, and that the conservation of judicial resources, which is an important objective of these doctrines, could be better addressed by other prudential doctrines.
(abstract from Environmental Law Review)
June 1st, 2009
Kathy Black, Trashing the Presumption: Intervention on the Side of the Government, 39 Environmental Law Review 481 (2009)
The Federal Rules of Civil Procedure allow anyone with a legally protectable interest facing impairment to intervene in existing litigation as a matter of right, subject to whether existing parties in the litigation adequately represent the proposed intervenor’s interest. Courts apply a presumption that governmental parties adequately represent the interests of their citizens. When environmental groups petition to intervene on the side of the federal government, application of the presumption leads to inconsistent rulings that vary by court and by time, subject even to the whims of the political process. This Comment argues for an end to the presumption and a return to a liberal intervention standard based on a minimal burden standard.
(abstract from Environmental Law Review)
May 5th, 2009
The latest issue of Lewis & Clark Law School’s Lewis & Clark Law Review is now out.
Here are the articles published in Volume 13, Number 1 of Lewis & Clark Law Review, complete with links to the abstracts and full-text articles:
Symposium
Articles
New L&C Law Scholarship is a regular feature of BoleyBlogs! Here we announce new content from the Law Reviews of Lewis & Clark Law School, along with the latest publishing ventures of our own faculty, students and staff.
May 5th, 2009
Ingrid Wuerth, Medellin: The New, New Formalism?, 13 Lewis & Clark Law Review 1 (2009)
The Supreme Court’s 2008 decision in Medellin v. Texas appears to represent a formalist turn in the Court’s approach to foreign relations cases. The opinion emphasizes text as the key to treaty interpretation and it stresses the importance of the Constitution’s specific law-making procedures. But the opinion does not deliver on its formalist promises. Emphasis on treaty text is undermined by the Court’s insistence that the text reflects the intentions of the U.S. treaty-makers, a questionable proposition with respect to the issue of domestic implementation raised by the case, and one that will raise serious interpretative difficulties down the road. Most significantly, however, the opinion is saddled with an unnecessary and unconvincing application of Justice Jackson’s tripartite Youngstown framework. The Court concludes that the President’s effort to implement the treaty falls within the third category, but the indicia of congressional intent that the Court relies on are weak, and the analysis works a substantial expansion of this category. Moreover, as the Court frames the issue-one of treaty interpretation-it is unclear why Youngstown should apply at all.
(abstract from Lewis & Clark Law Review)
May 5th, 2009
Paul B. Stephan, Open Doors, 13 Lewis & Clark Law Review 11 (2009)
This Article focuses on two issues left open by Medellin v. Texas. First, do the courts of the United States have an obligation to accord comity to judgments of international tribunals such as the International Court of Justice? Second, is it possible to construe a treaty as delegating lawmaking authority to the Executive Branch, and if so, what are the criteria for determining that a delegation is intended? The Article argues that the comity doctrine rests on principles of reciprocity and discrimination, and that such principles generally are inapplicable to a treaty-based international tribunal. The Article further argues that the Medellin majority failed to address the delegation issue, and that strong arguments exist for inferring delegations from particular treaty provisions. In particular, it is plausible to infer, from a treaty commitment to submit a matter to binding dispute settlement by an international tribunal, a limited delegation to the Executive of discretionary authority to take necessary steps to bring the United States into compliance with the tribunal’s judgment.
(abstract from Lewis & Clark Law Review)
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