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Volume 43, Issue 6 — June 2013


The Historical, Comparative, and Convergence Trifecta in International Water Law: A Mexico-U.S. Example

by Peter L. Reich

Doctrinal disconnects complicate adjudication of international water rights controversies. However, legal history and comparative law sources can fill gaps and build analogies to bridge differences in substantive law. Between Mexico and the United States in particular, the civil-common-law divide at times appears vast, but has been occasionally narrowed by reference to shared Roman principles of usufruct or by incorporation of Mexican law into the U.S. system. Such meeting places for doctrine suggest that, even in domestic courts, nations need not attempt to resolve international problems through domestic law alone.

Cooperating With Wildlife: The Past, Present, and Future of Wildlife Federalism

by Kalyani Robbins

States have traditionally played a significant role in managing wildlife, but play a very small role in implementing the Endangered Species Act, and an even smaller role with other federal wildlife statutes. The disconnect between the federal government and states (where the local knowledge is strongest) results in both inefficiencies and harmful incentives. While states and local governments are best positioned to manage local habitat, federal oversight is needed to ensure that our widely shared benefits (biodiversity) are not lost to a tragedy of the commons problem. Protection of vulnerable ecosystems is best served via a structure of overlapping federalism. Informally, this is already happening, but cost efficiency may be improved via an effort to adaptively, but still more formally, allocate that overlap.

Looking Backward, Looking Forward: The Next 40 Years of Environmental Law

by Robert V. Percival

The only certainty concerning predictions for the future of the environment is that most of them are likely to be wrong. This is illustrated by the fate of past predictions, such as those contained in Paul Ehrlich’s Population Bomb, Gregg Easterbrook’s A Moment on the Earth, and Bjørn Lomborg’s The Skeptical Environmentalist. While it is difficult to guess at the future of the environment, predictions concerning environmental law are even more hazardous because they turn in large part on the future of politics. After reviewing current political gridlock over environmental concerns, this Article considers contemporary forecasts of the fate of the planet (including those contained in Al Gore’s The Future and the 2052 Report) and the role of technological change in creating opportunities for environmental progress.

From Citizen Suits to Conservation Easements: The Increasing Private Role in Public Permit Enforcement

by Jessica Owley

The past 40 years have seen an increase in the involvement of private actors in environmental law. One of the best-known (and arguably best-loved) methods for public involvement is the citizen suit. This popular method of public enforcement of environmental permits (among other things) has been joined by the use of conservation easements. Conservation easements are increasingly used to meet permit mitigation requirements. When private nonprofits hold these exacted conservation easements, they assume the role of permit enforcers. It is their job to ensure that conservation easement terms are complied with, giving them oversight and control over one of the pivotal components of environmental permitting regimes. Land-trust-held exacted conservation easements privatize enforcement of environmental law, much as citizen suits do. However, exacted  conservation easements differ from citizen suits in that they foreclose public enforcement instead of complement it. Use of exacted conservation easements would improve
if we apply lessons about public involvement and information from our citizen suit tradition.

Goodbye Christopher Columbus Langdell?

by K.K. DuVivier

The call of this Article was to take “A Prospective Look” at Environmental and Natural Resources Law for the next 40 years with a special focus on law school teaching. Daunted by the hubris involved in prognosticating so far into the future, this piece more modestly explores three areas in which law school teaching is currently changing: I. Methods of Presentation; II. Use of Skills Exercises; and III. Influence of Digital Technologies and the Internet. To add an empirical component, the author canvassed AALS members about pedagogies they used both in class and outside of classroom time, as well as teaching tools they have employed, ranging from traditional exams or writing assessments to electronic devices, online teaching tools, and social networking. The Article summarizes the results of the survey as well as relevant research on effective teaching to provide glimpses into the law school classroom of the future.