Thirty-six years after the enactment of the Clean Water Act (CWA) and its Sections 301 and 404 program regulating the discharge of dredged and fill material into aquatic systems, it has become glaringly apparent that mitigation has been largely unsuccessful at replacing either the extent or functions of the aquatic resources destroyed or degraded by such discharges. By now, it should be obvious that, wherever possible, avoidance of impacts to existing water resources is the wisest environmental protection policy. Yet in practice, avoidance has received far too much lip service and far too little practical application. Recent agency rules issued to govern mitigation activities continue what can only be described as a “cockeyed optimist” approach to aquatic resources permitting—one that is destined to lead to further deterioration of the nation’s aquatic resource base.
Half of the world’s wetlands were lost in the past century. Twenty percent of the world’s freshwater fish are extinct, threatened, or endangered. In addition, dams and canals fragment almost sixty percent of the world’s largest rivers. The United States alone is losing natural land at an alarming rate, with over two million acres of land lost every year to development. According to the United States Geological Survey, Louisiana has lost 1,900 square miles of wetlands in the past seven decades—an area larger than the state of Rhode Island. Draining the wetlands to make way for roads, malls, beach communities, marinas, and condominiums has depleted the shoreline. Louisiana, in fact, loses twenty-five square miles of coast every year.
In the state of New South Wales (NSW), Australia, incentives for biodiversity conservation primarily involve financial incentives and taxation concessions. Disincentives to discourage impacts on biodiversity have primarily been procedural and regulatory. However, the new Biodiversity Banking and Offsets Scheme (BioBanking) in NSW aims to introduce market-based incentives both to encourage conservation and discourage impacts on biodiversity.
Species protection often conflicts with economic interests. Applying a proactive approach to nature conservation, in which conservation measures are integrated into economic activities, can lead to good results.
In the Netherlands, the presence of the strictly protected Natterjack toad often leads to conflicts. For one particular region, it is even clear that application of conservation-minded legislation is counterproductive. Therefore, a species management plan (SMP) was specifically created for this region by means of a joint planning process that included all stakeholders. The SMP is a framework for guaranteeing the long-term viability of the population of the Natterjack toad in the region while preventing unnecessary legal procedures. As such, it has both economic and ecological advantages.
Kate Bornstein calls hirself a gender outlaw. Ze was born Al Bornstein and lived for decades as a man, but ze never felt like a man: “I know I’m not a man—about that much I’m very clear,” ze says. Al took hormones and ultimately underwent sex reassignment surgery to become Kate, assuming that hir certainty that ze was not a man must mean that ze was a woman. So ze tried being a woman, but ze did not feel like a woman either. “I’ve no idea what ‘a woman’ feels like. I never did feel like a girl or a woman,” ze confesses.
Aware that people instantaneously label others according to gender and that the label they choose affects how they interact with each other, Bornstein made an effort to pass as a woman regardless of hir doubts. Ze studied the way gender is suggested by cues such as physical appearance, behavior, legal documents, and power dynamics in order to learn those cues that could be learned and divert attention from those that could not be changed. In part by learning these cues, Bornstein now “live[s] [hir] life as a woman in [hir] day-to-day walking around, but [ze] is not under any illusion that [ze] [is] a woman.”
The President of the United States created a Commission to study local zoning regulations and their impact on housing costs. After two years of intense research, the Commission submitted its much-anticipated report to the President. The 504-page report concluded:
Zoning affects land values in a number of ways. First, by protecting development against the encroachment of undesirable uses, it can help to maintain and enhance property values. Indeed, much of the interest and concern in the zoning system by homeowners is based on this desire to preserve their investment. Second, zoning may raise the price of land designated for certain uses by restricting the supply of such land.
Trial advocacy professors can identify with the following lament of Andrew Marvell, a 17th-century poet:
“But at my back I always hear/Time’s winged chariot hurrying near.”
The most precious commodity in a trial advocacy classroom is time—there is never enough of it. Given sufficient time and coaching opportunities, a good advocacy professor can work miracles, even with marginally-skilled students. Instead, many professors find themselves facing the Sisyphean task of trying to teach trial skills while watching an endless series of identical performances in which identical mistakes are made, despite identical critiques.
Strategic rules governing the handling of expert-witness testimony must be revisited in light of the Daubert evolution—referred to as Daubertization—over the past fifteen years. The risk of losing a post-Daubert admissibility challenge is a daunting threat for trial lawyers and other attorneys practicing in the pretrial trenches where the battle often takes place. Many lawyers who do not consider themselves “trial lawyers” must retool their thinking when dealing with pretrial discovery involving any proposed expert witness where the Federal Rule of Evidence, Rule 104 admissibility proceeding is a virtual trial subject to an abuse-of-discretion standard on appellate review. This becomes increasingly important as the number and scope of admissibility challenges escalate, as well as when trial courts take judicial notice of prior expert admissibility rulings. As the Supreme Court has admonished, “[i]t is implausible to suggest, post-Daubert, that parties will initially present less than their best expert evidence in the expectation of a second chance should their first try fail.”
Virtually all law students are required to learn oral advocacy skills at some point during their legal education. Typically, these skills are cultivated through at least one oral argument assignment, which often consists of an appellate oral argument that is given as part of the students’ first-year legal research and writing course or as part of a moot court competition. While appellate courts do not grant oral arguments as often as they used to, oral advocacy remains a critical skill for law students to learn and cultivate, no matter which area of law they practice upon graduation.
Unfortunately, the prospect of learning this critical skill through an oral argument assignment can be disquieting to students. The main reason for this unease is simple—most law students have little to no oral advocacy experience. However, students may ease their anxiety and ultimately deliver an excellent oral argument if they fully understand the purposes of the argument and if they thoroughly prepare for the argument. This Article is targeted at oral argument novices. It discusses how you, as a beginner to appellate oral argument, may effectively prepare and deliver an argument, particularly if you are giving this argument as part of your law school’s legal research and writing course or as a competitor in a moot court competition.
I was just a young woman as staff director of the Florida House Judiciary Committee when a tall man walked in and made sure that we knew who he was. He made sure we knew that he was there to help us and to back us up, and Reece Smith has backed me up every time I have needed him over a long time of service. My service has been influenced extraordinarily by this man who cares so much, and who embodies the word pro bono for all America and for the world in terms of how lawyers should react to their professional responsibilities.