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Constitutional Law

Determining Climate Responsibility: Government Liability for Hurricane Katrina?

In St. Bernard Parish Government v. United States, Louisiana property owners argued that the U.S. government was liable under takings law for flood damage to their properties caused by Hurricane Katrina and other hurricanes....

An American (State) in Paris: The Constitutionality of U.S. States’ Commitments to the Paris Agreement

In June 2017, President Donald Trump confirmed that the United States will withdraw from the Paris Agreement. Almost immediately, individual states began to pledge their commitments to the Paris Agreement despite the lack of federal...

The First Amendment Implications of a Mandatory Environmental, Social, and Governance Disclosure Regime

It is undeniable that globalization has increased the extent to which corporate entities are connected to the daily lives of people from every corner of the world. Yet coupled to the growing reach of corporations is a growing demand...

Castles—and Roads—in the Sand: Do All Roads Lead to a “Taking”?

The law has been slow to acknowledge the unprecedented nature of sea-level rise. Unless and until the law adapts, past case law on coastal hazards exacerbated by sea-level rise provides the best guidance. This Article critically...

Resilience and Raisins: Partial Takings and Coastal Climate Change Adaptation

The increased need for government-driven coastal resilience projects will lead to a growing number of claims for “partial takings” of coastal property. Much attention has been paid to what actions constitute a partial taking, but there...

Liquid Gold or Water for Pecans? Valuation of Groundwater in Regulatory Takings Law

In 2012, the Texas Supreme Court’s decision in Edwards Aquifer Authority v. Day reversed 100 years of state water law by changing the principle that establishes groundwater ownership rights from a “rule of capture” to a rule of...

Minimizing Constitutional Risk in State Energy Policy: A Survey of the State of the Law

Constitutional challenges to new state energy policies have been mounting in state and federal courts. This Article surveys the state of the relevant law, focusing on the dormant Commerce Clause and the Supremacy Clause, and draws five...

Pike Balancing: Vulnerabilities of State Greenhouse Gas Regulations and Possible Solutions

The dormant Commerce Clause prohibits state-level regulations that improperly discriminate against out-of-state-interests or unduly burden interstate commerce. As such, this doctrine may present a barrier to state-level greenhouse gas...

Reliance Interests and Takings Liability for Rail-Trail Conversions: Marvin M. Brandt Revocable Trust v. United States

On October 1, 2013, the U.S. Supreme Court granted certiorari in a relatively obscure case, Marvin M. Brandt Revocable Trust v. United States. On its face, the case involves an interpretation of the property rights created by...

Fracturing Moratoria Under the Dormant Commerce Clause: The Need to Shape Rather Than Resist the Shale Gale

Opponents of oil and gas exploration using hydraulic fracturing have been advocating bans or moratoria on use of the technology, beginning in Vermont and New York. In the summer of 2013, several state legislatures, e.g., California and...

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