Volume 26, Issue 4
Winter 1996
ARTICLES
Property as a Public Conversation, Not a Lockean
Soliloquy: A Role for Intellectual and Legal History in Takings Analysis
Myrl L. Duncan
Professor Duncan argues that John
Locke's individualistic theory of property, currently being advocated by
conservative commentators, is a vestige of seventeenth-century science that
cannot be reconciled with modern knowledge that nature is an interconnected
whole.
Assessing the Fitness of Novel Scientific Evidence in the
Post-Daubert Era: Pesticide Exposure Cases as a Paradigm for Determining
Admissibility
Erin K.L. Mahaney
In the wake of the Supreme
Court's opinion in Daubert v. Merrell Dow Pharmaceuticals, federal
courts must conduct a two-step analysis under Federal Rule of Evidence 702 to
determine the admissibility of scientific expert testimony. Ms. Mahaney
examines the less-analyzed second prong of this admissibility calculus--the
fitness requirement. She focuses on the special fitness problems that arise in
using novel scientific evidence in pesticide exposure cases, suggesting several
devices to facilitate admission of such evidence and to simplify the judge's
role as evidentiary gatekeeper.
The Relationship Between "Permanent
Sovereignty" and the Obligation Not to Cause Transboundary Environmental
Damage
Franz Xaver Perrez
Mr. Perrez questions whether the
notion of a nation-state's permanent sovereignty over natural resources is
incompatible with the international law principle that a nation should not
cause transboundary pollution. After examining the parameters of both
principles, the author identifies three distinct limitations on the right to
permanent sovereignty over natural resources. Those limitations suggest that
permanent sovereignty, rather than constituting an absolute right, actually
includes a duty not to cause transboundary pollution.
Enforcement of Environmental Law and United States and
European Law: Realities and Expectations
Sevine Ercmann
Dr. Ercmann suggests alternative
methods of environmental enforcement based on recent developments in the United
States and Europe. She reports that the traditional command-and-control approach
to environmental regulation is giving way to innovative means of enforcement,
such as eco-contracts and environmental auditing. The Article concludes that
these new methods have generally produced successful results.
COMMENTS
State Environmental Audit Privilege Laws: Can EPA Still
Access Environmental Audits in Federal Court?
Christina Austin
Ms. Austin contemplates the
effects that state-created evidentiary privileges protecting environmental
audits will have on EPA's ability to access those audits in federal court.
Based on the evolution of privilege law following the adoption of Rule 501 of
the Federal Rules of Evidence and the judicial system's reluctance to create
new privilege laws, she concludes that state privilege laws should not be honored
by federal courts when EPA seeks access to environmental audits.
Equal Footing, County Supremacy, and the Western Public
Lands
Paul Conable
Mr. Conable examines the movement
that seeks to eliminate federal public land ownership and transfer those lands
back to the states. He concludes that the arguments advanced by the
"county supremacist movement" supporters are not compelling enough to
warrant further examination by federal courts, which have already resolved many
of the major issues.
NOTE
Alaska Wilderness v. Morrison: The Return of
Reasonableness to NEPA Review?
Jennifer L. Byrne
The Supreme Court announced in Marsh
v. Oregon Natural Resources Council that the standard of review for
challenges to agency decisions not prepare environmental impact statements
would be arbitrary and capricious. Based on the Ninth Circuit decision in Alaska
Wilderness Recreation and Tourism Ass'n v. Morrison, Ms. Byrne argues,
however, that the reasonableness standard may still be a viable standard of
review in certain NEPA cases. Ms. Byrne concludes that plaintiffs who can frame
their challenges as disputes over legal issues rather than factual issues may
be able to distinguish Marsh, and thus qualify for a more stringent
reasonableness review of the agency's action.
BOOK REVIEW
Biodiversity and the Law
Richard L. Blaustein
The earth's biodiversity is rapidly disappearing. This environmental crisis is the subject of Biodiversity and the Law, a collection of writings edited by William J. Snape III. In Mr. Blaustein's book review, he argues that the law, if properly applied, could potentially stop the biodiversity "extinction," and protect the earth's biodiversity for future generations.