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Realigning the Clean Water Act: Comprehensive Treatment of Nonpoint Source Pollution
Get PDFNonpoint source pollution is the biggest threat to water quality in the United States today. This Article argues for stronger federal controls over nonpoint source pollution. It begins by examining the history of water quality regulation in the United States, including the passage and amendment of the Clean Water Act and the evolving definition of “navigable waters” over time. The Article then discusses recent rulemaking and litigation developments, including the Clean Water Rule, the Navigable Waters Protection Rule, and the County of Maui, Hawaii v. Hawaii Wildlife Fund case. It offers three recommendations. First, the Article calls for a congressional amendment to the Clean Water Act to require binding controls on nonpoint source pollution. Second, recognizing that an amendment to the Clean Water Act may not be politically viable, it offers an approach for controlling nonpoint source pollution through an amendment to the Safe Drinking Water Act. Finally, it identifies tools that interested states, local governments, and citizens’ groups can utilize to take action on nonpoint source pollution under existing law. This Article concludes that reductions in nonpoint source pollution will lead to significant improvements in the water quality of our nation’s lakes, rivers, wetlands, and coastal areas, to the benefit of human and environmental health
Pomegranates and Railroads: Why POM Wonderful Suggests that the Federal Railroad Safety Act Should Never Preclude Federal Employers Liability Act Claims
Get PDFOn September 30, 2010, Scott Schendel was the engineer on a locomotive heading southbound near Two Harbors, Minnesota. His shift started early that morning – he clocked in at 4:30 a.m. – and the railroad wanted to make sure Schendel’s locomotive returned to Two Harbors before his mandatory twelve-hour on-duty time limit expired. At 4:05 p.m., however, disaster struck: Schendel’s locomotive collided with a northbound train, causing catastrophic damage. Three locomotives and fourteen rail cars derailed, resulting in $8.1 million in damages to railroad property
Domestic Courts\u27 Impact on Arbitral Awards: Pragmatic Reflections on the New York Convention
Get PDFOn June 1, 2018, the heirs of the late Sheikhs Abdullah Al-Solaiman AlHamdan and Khalid Abu Al-Waleed Al-Oarqani ( Claimants ) petitioned to confirm and enforce an $18 billion arbitral award against Chevron entities before the Northern District of California and the Southern District of Texas. The award was issued under the auspices of the illegitimate International Arbitration Centre ( IAC ) in Cairo, Egypt. The dispute involved a decades-old concession agreement in which the Saudi government permitted Chevron\u27s predecessor, the Standard Oil Company of California ( SoCal ), to develop certain Saudi oil fields. Both enforcement petitions were dismissed
Setting the Table for Mediation Success: Supporting Disputants to Arrive Prepared
Get PDFConsider the following two scenarios. Tom Jones sued his neighbor over a dispute they had regarding the boundaries of their abutting properties. Within a week of filing the suit, he received notice that a mediation had been scheduled for their case. Three weeks later he arrived at the appointed place and time of the mediation where he found his neighbor, his neighbor\u27s attorney, and a mediator. After brief introductions, they were invited to take their seats and were provided a short overview of mediation, a process that was new and unfamiliar to Tom Jones. Two hours later, he left in frustration. In another case, a probate judge ordered two sisters, Rose and Anne, to mediate their dispute over an inheritance. During mediation, their conversations often became heated and the mediator struggled to assist them in productively addressing their differences. After provocation by Anne, Rose started to cry and left the room, the mediation ended without an agreement. These two scenarios share a common denominator, they demonstrate a lack of preparation. Tom lacked familiarity with the mediation process, while Rose and Anne had not been forewarned of the potentially jarring interactions sometimes endemic to mediation. These situations are commonplace. This article addresses parties\u27 mediation preparedness, or more precisely unpreparedness
The Grass is Always Greener: Applying ADR to Marijuana Disputes
Get PDFAs the public opinion of marijuana use continues to evolve, the legal landscape surrounding marijuana evolves as well. The progressive changes made in state law and accompanying range of legal permissibility have created problems for those that consume, cultivate, produce, and distribute marijuana and marijuana-infused products. Such challenges arise because federal law does not mirror the many different approaches taken by the states that have legalized--or, at least, decriminalized-marijuana use. Under federal law, the use, sale, or distribution of marijuana is illegal
DILYARA NIGMATULLINA’S NEW ARTICLE ON PLANNED EARLY DISPUTE RESOLUTION AND TECHNOLOGY
Get PDFThis post summarizes Dilyara Nigmatullina’s article entitled, Planned Early Dispute Resolution [PEDR] Systems and Elements: Experiences and the Promise of Technology. It investigates actual experiences of companies using PEDR systems and discusses the effect that the companies’ shift to PEDR has on law firms. It concludes by exploring how PEDR systems can benefit from the use of technological tools and how the interaction between technology and dispute resolution can affect the future of the legal profession. PEDR is discussed in Section 8
Eleven Observations about Legal Writing
Get PDFThis Article collects 11 observations about legal writing that I have shared with law students since I began teaching in the late 1970s
Yogi-isms in the Courts
Get PDFThe versatility of Lawrence Peter (Yogi) Berra, a native of St. Louis,5 appears unparalleled in the annals of professional sports. His stellar on-the-field performance earned him election to the Hall of Fame in 1972, and his vast collection of off-the-field sayings earned him a secure place in American folklore. Some Yogi-isms are cited and quoted in federal and state judicial opinions. Topping the judicial ledger is “It’s déjà vu all over again,” which appears in Shurtleff and a few dozen other decisions
Some Linear Thoughts on a Cyclical Vision
Get PDFI am honored to have been included in this Symposium on Jack Balkin’s new book, The Cycles of Constitutional Time. Professor Balkin is a giant in the legal academy and a public intellectual of the first rank. Here, as elsewhere, he has written a book that combines careful study of American history and constitutionalism with lucid, propulsive prose. The other contributors to this Symposium are themselves a Who’s Who in constitutional law, history, and political science. I am not sure I quite belong in this exalted company. Even though I have written about some specialized – if sometimes topical – corners of the American Constitution, I am not a constitutional theorist in the large sense. I am also not a trained historian. Such historical writing as I have done is mostly small-bore inquiries into things like the import of homicide prosecutions in Boone County, Missouri, in the Civil War era, or might be disparaged by real certificated historians as what Alfred Kelly labeled “law office history.” Nor am I a political scientist, despite having the bachelor’s degree in that topic that so often presages a descent into law school. I am just an old criminal lawyer who now teaches and writes about whatever interests him. Hence, I am not really qualified to critique constitutional theory of the sweep presented in Professor Balkin’s book. Nonetheless, reading it has not only informed me, but stimulated a few questions, which I explore in this Article
At the Edge of Objectivity: The Missouri Court of Appeals’ Deference to a Seemingly Subjective Assessment of Prejudice Under Strickland
Get PDFStrickland v. Washington is often heralded as one of the most important criminal procedure cases of the last century. The opinion created a two-prong framework for analyzing a post-conviction relief claim of ineffective assistance of counsel: performance and prejudice. The focus of this Note is the prejudice prong, specifically when the post-conviction court is the same court that presided over a defendant’s trial or sentencing