SelectedWorks @ Widener University Commonwealth Law School
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The Role of Trust Law Principles in Defining Public Trust Duties for Natural Resources
No full textPublic trusts for natural resources incorporate both limits and duties on governments in their stewardship of those natural resources. They exist in every state in the United States—in constitutional provisions, statutes, and in common law. Yet the law recognizing public trusts for natural resources may contain only the most basic provisions—often just a sentence or two. The purpose and terms of these public trusts certainly answer some questions about the limits and duties of trustees, but they do not answer all questions. When questions arise that the body of law creating or recognizing a public trust for natural resources does not fully answer, trustees, lawyers, and courts often look to trust law for help. In fact, they have been doing so for more than a century, including in the U.S. Supreme Court’s landmark 1892 public trust decision in Illinois Central Railroad Co. v Illinois. In this sense, trust law provides a set of background or underlying principles for interpreting and applying public trusts.Using cases from around the country, this Article sets out a four-step methodology for determining when and how to use trust law principles to help interpret public trusts. This methodology can be applied in any case involving the use of trust principles to help interpret any particular public trust. This Article also explains that the relevant trust law includes general trust principles, private trust law priciples, and charitable trust law principles, and should not be limited to private trust law.This Article uses a 2019 Pennsylvania Commonwealth Court decision, Pennsylvania Environmental Defense Fund v. Commonwealth, as a case study. The case applies Article I, Section 27 of the Pennsylvania constitution, which requires that public natural resources be conserved and maintained for the benefit of present and future generations. In that case, the court used an interpretation of private trust law to decide that the state could spend some bonus and rental payment money from oil and gas leasing on state forest and park land, which is constitutional public trust property, for nontrust purposes. This Article applies the four-part methodology to the case, explains general trust law and charitable trust law principles that the Commonwealth Court did not address, and argues that use of these principles better fits the constitutional public trust. It concludes that the money from bonus and rental payments should be spent entirely for the purposes of the trust.This Article is intended to draw attention to both the potential value of trust law principles and also to their potential danger in the interpretation and application of public trust laws for natural resources. Trust law has the potential to enhance the protectiveness of public trusts by imposing various fiduciary duties on trustees. It also has the potential to undermine public trusts, particularly through rules requiring that trust assets be financially productive. To vindicate public trusts for natural resources, environmental and natural resources lawyers need to become better trust lawyers
Intentionally and Systematically Integrating Diversity Discussions and Lessons in the Law School Classroom During a Race-Conscious Era
No full textThis article addresses the compelling interest states have in the educational benefit of diversity in higher education. It provides a framework for developing the classroom discussions most likely envisioned by the Supreme Court justices in recognizing this compelling interest. First suggested to be a compelling interest in the fractured yet landmark Regents of University v. Bakke decision, it was not until Grutter v. Bollinger in 2003 that the Court furthered the idea. The more recent Fisher v. University of Texas decision from 2016 seemed to accept educational diversity as a compelling interest; however, that conclusion received strong criticism. In Fisher, Justice Alito took the opportunity in his dissent to systematically cut a swath through the majority’s acceptance of the University’s goals of classroom diversity, interracial diversity, and the avoidance of racial isolation. This article disagrees with Justice Alito and aims to establish that the educational benefits of racial diversity in the classroom are evident. To do so, the article provides a historical tracing of the Court’s valuation of the educational benefits of a diverse student body.Next, the article focuses on the continued need for diversity lessons in a race-conscious culture and explains methodologies for incorporating lessons on diversity in traditional law school courses. The article provides the means for teaching racially sensitive topics; but because it questions whether everyone is equipped to openly handle diversity issues, it also makes suggestions on how to do so in silent and quiet manners. Finally, the article provides a brief review of post-Fisher litigation and concludes that the Court consider shifting its focus from the educational benefits of diversity to the educational benefits of inclusion. In so doing, the article recognizes the continued need to further develop both the educational benefit as a compelling interest and the law school conversations
Court-Ordered Reductions of Greenhouse Gases? The Urgenda and Juliana Decisions
No full textTwo major climate change cases were decided in the last month — StateoftheNetherlandsv.Urgenda (Dec. 20, 2019), and Julianav.UnitedStates, 947 F.3d 1159 (Jan. 17, 2020). They illustrate sharply contrasting views about the role of courts in forcing reductions in greenhouse gas emissions
Property Law, Second Edition
No full textNew to the Second Edition:Additional text on racial discrimination and other critical issues in a subtle way, giving instructors the choice of how deeply to explore those issuesRevisions to Chapter 9 to include Murr v. Wisconsin, the Supreme Court’s most recent regulatory takings caseA Revised Chapter 10 that includes new material on Intellectual Property and Property TheoryMinor corrections and refinements throughout the caseboo
The Best Candidate Presidential Nomination in Polarized Times
No full textThe way American citizens elect a president in November is enshrined in the Constitution and has remained unchanged for two hundred years. By contrast, the rules by which American political parties nominate their presidential candidates have evolved dramatically over time. In recent years, these byzantine rules have allowed a number of unexpected candidates to win their party\u27s presidential nomination. In The Best Candidate, a roster of leading election law scholars from across the political spectrum - true-blue Democrats, die-hard Republicans, and everyone in between - illuminate the law behind the modern presidential nomination process and offer ideas for how it can be improved. This book offers a blueprint for how American voters and their parties could nominate the best candidate for the presidency, and it should be read by anyone who cares about the occupant of the Oval Office
Thinking Anew About the Environmental Rights Amendment: An Analysis of Recent Commonwealth Court Decisions
No full textIn landmark decisions in 2013 and 2017, the Pennsylvania Supreme Court revitalized the Environmental Rights Amendment (Article I, Section 27) to the state constitution. It did so by rejecting a three-part test that the Commonwealth Court articulated in 1973 as a substitute for the text of the Amendment. The new standard of review, the Supreme Court said, is based on “the text of [a]rticle I, [s]ection 27 itself as well as the underlying principles of Pennsylvania trust law in effect at the time of its enactment.”This Article is an analysis of the Commonwealth Court’s 13 Environmental Rights Amendment decisions in the first four years after the Supreme Court revitalized the Amendment. The Commonwealth Court plays a critical role in shaping the law of the Amendment because it is a specialized intermediate appellate court that decides questions of public law, including constitutional questions. These 13 decisions involve a variety of permitting, zoning, and related cases that are quite different from the two Supreme Court decisions, which involved the constitutionality of statutes under Section 27. They thus provide a sense of the wide variety of contexts in which Section 27 can apply. This Article describes these cases and draws seven key themes from them about the Commonwealth Court’s approach to Environmental Rights Amendment jurisprudence during this four-year period
America\u27s Zero Carbon Action Plan: Federal Legislative and Administrative Framework
No full textThis chapter sets out proposed federal laws and policies for America\u27s Zero Carbon Action Plan, a comprehensive report on how to achieve net-zero carbon emissions by 2050. This chapter sets forth recommendations for all four pillars of deep decarbonization – electricity decarbonization, energy efficiency and conservation, electrification of transportation and buildings, and carbon capture. It is supplemented with recommendations for significant reductions in emissions of non-carbon dioxide pollutants, as well as for changes in foreign policy. Each set of recommendations is accompanied by an explanation of the underlying strategy for the proposed changes
