"Why Law Now Needs to Control Rather than Follow Neo-Classical Economics" Free Download
Pace Environmental Law (PELR) Review, Vol. 33, Forthcoming
U of Penn Law School, Public Law Research Paper No. 15-27

JOHN WILLIAM DRAPER, University of Pennsylvania

Neo-classical economics and selfish notions of utilitarianism are driving the globalized economy. Those approaches are destined to fail as they have no brake to discourage humanity from consuming, populating, or polluting enough to harm the life support system of our planet. As they take lives for proprietary gain, neo-classical economics and its decision tool, cost-benefit analysis, work to increase humanity’s foreseeable risks. We should reject the theory and its tools. We need to search for ways to control rather than follow neo-classical economics. We need a careful discussion about the needed changes and their timing.

"Exploring the Borderlands between Wild and Non-Wild Animals: Wildlife Law and Policy in Transition" Free Download
Journal of International Wildlife Law & Policy, December 2015

GEOFFREY WANDESFORDE-SMITH, University of California, Davis

This is the editorial introduction to an international collection of papers exploring the borderlands between wild and non-wild animals, and their implications for the future of wildlife law and policy.

"Next Generation Compliance" Free Download
Natural Resources & Environment (NR & E) (Winter 2016, Forthcoming)

DAVID L. MARKELL, Florida State University College of Law
ROBERT L. GLICKSMAN, George Washington University - Law School

Enforcement has long been a central component of the Environmental Protection Agency’s (EPA) administration of the nation’s environmental laws. EPA’s latest Strategic Plan identifies as one of the Agency’s five strategic goals protecting human health and the environment by enforcing laws and assuring compliance. Yet, outside observers and the Agency itself have identified a series of longstanding as well as emerging challenges to effective enforcement.

EPA has responded to these criticisms and challenges by embarking on what it terms a “transformative? enforcement initiative, which it calls Next Generation Compliance (“Next Gen?). Cynthia Giles, Assistant Administrator for OECA, has emphasized that the Next Generation Compliance initiative is intended to complement traditional enforcement work, not displace it; inspections and initiation of enforcement cases against significant violators will continue to be “an essential part? of EPA’s enforcement work. This article takes a preliminary look at the design and implementation to date of Next Generation Compliance. It also identifies ways in which this initiative has the potential to reshape the traditional enforcement landscape in ways that will be important for all stakeholders in environmental regulatory enforcement.

"No Competing Theory of Constitutional Interpretation Justifies Regulatory Takings Ideology" Free Download

ANDREW WILLIAM SCHWARTZ, Shute, Mihaly & Weinberger LLP

Compensation for excessive regulation of the use of property under the Just Compensation Clause of the Fifth Amendment has gained wide acceptance. Introduced in 1922 in Pennsylvania Coal Co. v. Mahon, and gathering considerable momentum in 1978 with Penn Central Transportation Co. v. City of New York, regulatory takings constrains government regulation protecting the environment, public health, consumer safety, affordable housing, and other community interests. Upon close examination, however, the regulatory takings doctrine does not appear to be justified by any of the competing theories of constitutional interpretation: textualism, originalism, or evolutionary document. Rather, the doctrine seems to arise from a misunderstanding of the Just Compensation Clause as guaranteeing a laissez-faire political economy. The initial parts of this article rely for the most part on existing scholarship analyzing regulatory takings under the textualist and originalists theories of interpretation. The bulk of the article is devoted to an examination of regulatory takings under the evolutionary document theory, which has received less attention in the literature of takings. The argument that the regulatory takings doctrine in its entirety is unwarranted under an evolutionary document approach is founded on the absence of precedent for granting the courts a significant role in the formulation of what is essentially economic policy, and profound conflicts between regulatory takings and core values of the Constitution, such as liberty, equality, and democracy. I also respond to claims that a broad reading of the Just Compensation Clause is necessary to balance the interests of property owners against society or that regulatory takings is a practical tool for property regulation. Finally, the article recommends an alternative system for government policy-making to control the use of property that relies almost exclusively on statutes and administrative regulations adopted by the political branches of government.

"Antimonopoly in Public Land Law" Free Download

MICHAEL C. BLUMM, Lewis & Clark Law School
KARA TEBEAU, Lewis & Clark Law School

Public land law is often thought to be divided into historical eras like the Disposition Era, the Reservation Era, and the Modern Era. We think an overarching theme throughout all eras is antimonopoly. Since the Founding, and continuing for over two-and-a-quarter centuries into the 21st century, antimonopoly policy has permeated public land law. In this article we show the persistence of antimonopoly sentiment throughout the public land history, from the Confederation Congress to Jacksonian America to the Progressive Conservation Era and into the modern era.

Antimonopoly policy led to widespread ownership of American land, perhaps America’s chief distinction from England and Europe. The policy fostered acreage limits in federal grants, a preference for bona fide settlers, and eventually an evolution from land sales to free land under the Homestead Act. Antimonopoly principles were also present in public timber, mining, and rangeland policies from the earliest days. In the Progressive Conservation Era antimonopoly fueled a public land withdrawal and reservation movement, landmark leasing and licensing programs that maintained public control over fuel minerals and waterways, and the first explicit federal policy concern over future generations. The modern era has seen the codification of multiple use management, the enactment of comprehensive land planning statutes, and the rise of multi-species concerns, among other antimonopoly policies.

Although antimonopoly policies seem to be under some threat from recent Congresses, a turn toward monopoly would amount to a renunciation of centuries of public land policy. This history strongly counsels against such these proposals as, however imperfectly realized on-the-ground, antimonopoly has been always been cardinal feature of public land law and policy and is deeply embedded in the nation’s identity as a reflection of republican values of individualism and equal opportunity.

"Natural Resources Damages" 

KAREN BRADSHAW SCHULZ, Sandra Day O'Connor College of Law

The United States manages natural resources held in the public trust for the collective benefit of all citizens. When public trust resources are injured by human action, the government has an obligation to pursue monetary damages to restore them. Natural resource damages have been largely overlooked and dramatically underestimated by commentators focused on litigation. Contrary to conventional wisdom, natural resource damages are frequently sought by government trustees. Ninety-five percent of claims settle, with trustees often logrolling claims to increase damages.

This is the first empirical study of natural resource damages claims brought between 1989 and 2015. Data reveal that federal agencies gathered $11.4 billion to restore damaged resources. Large settlements — larger than previously recognized — are shown to serve as a valuable deterrent and remove political calculations from the restoration of injured resources. Settlement practices are governed by relational contracting, in which written agreements control multi-year assessment practices and judicial enforcement is inaccessible. Inter-agency bargaining provides a quasi-judicial check on outcomes.


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