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Ellen S. Podgor, Foreword, Overcriminalization: The Politics of Crime, 54 Am. U. L. Rev. 541 (2005)Clicking on the button will copy the full recommended citation.
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Ellen S. Podgor, Jose Padilla and Martha Stewart: Who Should Be Charged with Criminal Conduct?, 109 Penn St. L. Rev. 1059 (2005)Clicking on the button will copy the full recommended citation.
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Royal C. Gardner and Theresa J. Pulley Radwan, What Happens When a Wetland Mitigation Bank Goes Bankrupt, 35 Envtl. L. Reporter 10590 (2005)Clicking on the button will copy the full recommended citation.
The article addresses how bankruptcy law can affect the rights and obligations of mitigation bankers and government agencies. The article further examines two ongoing bankruptcy actions involving mitigation banks and offers suggestions for adoption by regulatory agencies to protect against the consequences of mitigation banks going bankrupt.
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Royal C. Gardner and Darby Dickerson, Advancing Environmental Education through Moot Court, 1 International Journal of Environmental Consumerism 63 (2005)Clicking on the button will copy the full recommended citation.
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D. Benjamin Barros, At Last, Some Clarity: The Potential Long-Term Impact of Lingle v. Chevron and the Separation of Takings and Substantive Due Process, 69 Alb. L. Rev. 343 (2005)Clicking on the button will copy the full recommended citation.
This short essay discusses the Supreme Court's recent decision in Lingle v. Chevron and its potential long-term impact on the Court's regulatory takings doctrine. Lingle involved a narrow (though important) issue of takings law, and on the surface it appears to be a relatively modest case. A deeper look, however, reveals that in its separation of substantive due process and regulatory takings, Lingle has tremendous potential to clarify regulatory takings doctrine. If this potential is fulfilled, Lingle is likely to be far more significant in the long term than Kelo v. City of New London, which has dominated the commentary about the Court's recent takings decisions. Lingle may also have the counter-intuitive effect of helping property-rights advocates (who were the putative losers in the case) by undercutting the precedential value of cases that help the government in takings battles.
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Royal C. Gardner, The Role of Wetland Mitigation and Conservation Banking in Sustainable Development: The United States Experience, 1 Forum of Public Policy 47 (2005)Clicking on the button will copy the full recommended citation.
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Paul Boudreaux, Eminent Domain, Property Rights, and the Solution of Representation Reinforcement, 83 Denver University Law Review 1 (2005)Clicking on the button will copy the full recommended citation.
Courts at both the federal and state level are busy remaking the law of eminent domain, most notably in the controversial Kelo decision. Property rights advocates argue that courts should scrutinize more closely government's ability to take property with plans to transfer it to private developers. But asking courts to second-guess the wisdom of governmental policy decisions cannot be a workable solution. Instead, eminent domain could be tightened by relying on the idea of representation reinforcement, through which courts boost the interests of those groups who are unlikely to have their voices heard in the political realm. Across the nation, local governments are using eminent domain to discourage residency by poor persons. This article proposes that eminent domain be constitutionally impermissible when it is both used to take land destined for private hands and disproportionately hurts the poor or politically disadvantaged.
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Peter Lake, Private Law Continues to Come to Campus: Rights and Responsibilities Revisited, 31 J.C. & U.L. 621 (2005)Clicking on the button will copy the full recommended citation.
This article provides an update to the 1999 book, Rights and Responsibilities of the Modern University: Who Assumes the Risk of College Life, co-authored by Stetson law professors Robert D. Bickel and Peter Lake.
The article discusses cases decided since 1999 that deal with central issues of legal duty. The major focus of Rights and Responsibilities was describing the evolution of the law of legal duty in higher education. It has become apparent that the most significant cases in this regard are those involving student alcohol use. Rights and Responsibilities was not a book devoted to college alcohol issues, as such. Yet, it is increasingly apparent that the battleground over competing visions of the modern university is the high-risk alcohol culture and its epidemic primary and secondary effects. Litigation over injuries fueled by alcohol drive college and university safety law today. Many of the recent alcohol cases involve Greek organizations. Courts continue to hold Greek organizations responsible for foreseeable danger to members and others. There are also some significant cases that do not involve alcohol and are relevant to issues of duty and reasonable care in higher education law. Importantly, as No-duty arguments begin to fail in court, it is increasingly necessary for college and university lawyers to turn to other arguments such as causation and plaintiff fault to manage the litigation boom.
Part II discusses some future trends. First, the article briefly discusses the continuing rise of risk management cultures at colleges and universities in recent times. Rights and Responsibilities did not cause the rise in risk management cultures; yet, there is a profound inter-relationship between the book and the continued development and refinement of the concept of college risk management. The modern college or university now attends to foreseeable risks as a matter of good business, not just for litigation avoidance.
Part II also discusses the need for further development of the facilitator model as set out in Rights and Responsibilities. With the benefit of hindsight, it is clearer than ever that Rights and Responsibilities and the facilitator model require further development in at least two areas. One area concerns student process systems. Today, safety is intimately connected to the efficacy of student process systems. These systems are failing and need attention. Additionally, Rights and Responsibilities and its facilitator model were deeply animated by active risks posed to students by the students' own behavior, the behavior of other students, and non-students; and to a lesser extent, passive risks created by conditions on or near campus. Although Rights and Responsibilities did attend to some wellness issues, it did not focus upon the ever-growing range of student wellness issues including student suicide, depression, anxiety, cutting, etc. We are now on the leading edge of a new generational set of student concerns. There will be a rise in concern for - and thus ultimately litigation over - issues related to student wellness. The future of the facilitator model depends on attending to these new risks.
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Paul Boudreaux, The Three Levels of Ownership: Rethinking Our Restrictive Homebuilding Laws, 37 Urb. Law. 385 (2005)Clicking on the button will copy the full recommended citation.
This essay identifies "three levels of ownership" of land – private ownership, local ownership, and global ownership. American law has placed great emphasis on a supposed clash between the first two, as local governments attempt to regulate against the wishes of private owners. But recent political and economic research highlights the extent to which homeowners use local law to benefit their interests at the expense of outsiders, including potential migrants. A greater emphasis on global ownership, perhaps paired with private ownership, would lessen the adverse impact of this local protectionism.
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Theresa J. Pulley Radwan, No Harm, No Foul: Calculation of Nondischargeable Damages in Transactions Tainted by Fraud, 58 SMU L. Rev. 1385 (2005)Clicking on the button will copy the full recommended citation.
Section 523(a)(2)(B) of the United States Bankruptcy Code provides that a debt incurred as a result of written fraud cannot be discharged by a bankruptcy proceeding. Though section 523(a)(2)(B) provides elements of this nondischargeable fraud, one common element of fraud is conspicuously missing from this list-damages incurred as a result of the fraud. Whether damages must be shown in order to prevent discharge of a written fraud debt has been debated by courts under both the Bankruptcy Act and Code. However, despite numerous revisions to the bankruptcy laws, the need (or lack thereof) for damages remains unclear. In this article, the author suggests that preventing a discharge on the basis of fraud without requiring damages causes a windfall to the "defrauded" creditor. The author also suggests a mechanism for calculating such damages to ensure an equitable balance between the debtor and creditor in a bankruptcy proceeding, utilizing a tort-based calculation of damages.