SRTMA: Reappraising the BP Well Blowout in Light of Pippen, Theriot, Doiron, and Grubart

The article discusses the issues on the choice of law and jurisdiction in tortious or contractual events involving binary terrestrial/aquatic oil and gas drilling operations in the U.S.\u27 Outer Continental Shelf (OCS) and the provisions of the Outer Shelf Lands Act (OCSLA)

Casting Light on Cultural Property

Theorists of private property invite comparison to theorists of light. For centuries, the latter have debated whether light is best understood as a wave or as a photon. The rivalry has been intense because each hypothesis explains some characteristics of light very well, but others very poorly. Wave theory outstrips photon theory in explaining such phenomena as light\u27s frequencies and diffraction patterns. But photon theory, which reduces light to a succession of particles, more effectively explains such subatomic phenomena as changes in an atom\u27s orbital shell produced by the interaction of photons and electrons. Property theorists too can be viewed as occupying different positions on a spectrum. On one end are those supporting a conception of property as a self-contained and bounded photon; on the other, those favoring a model of property as a wave registering, indeed incorporating, the tensions and values of the social ether through which the wave moves

The Macondo Well Blowout: Taking the Outer Continental Shelf Lands Act Seriously

Choice of law issues in marine pollution events engage federal admiralty/general maritime law, federal environmental legislation and the reserved powers of the states to protect their natural resources and economic welfare. Admiralty and general maritime law enjoyed center stage throughout the first two thirds of the last century. Federal marine pollution statutes were few and weak, and state initiatives were typically deemed preempted in all but the so-called “marine but local” cases. The equilibrium began to shift in favor of state police powers and federal environmental values in the mid-1960’s in consequence of the Supreme Court’s solicitude for the former, and Congressional passage of vigorous marine pollution states, principally the 1978 amendments to the Outer Continental Shelf Lands Act (OCSLA), and the post-Exxon Valdez Oil Pollution Act of 1990(OPA). Concurrent with this shifting equilibrium was a line of four Supreme Court cases that radically altered a two-century old doctrine attributing admiralty jurisdiction to any maritime tort simply because it occurred on United States navigable waters. Distressed with what it variously termed the “casuistic,” “absurd,” or “fortuitous” invocation of admiralty jurisdiction and substantive law on the basis of location alone, the Court announced that, in addition to a maritime situs, admiralty jurisdiction requires a “substantial relationship” between the tortious event and a “traditional maritime activity.” The coming decade or more of pending BP oil spill litigation will be shaped in large part by the roles and priority the federal judiciary assigns competing federal admiralty and environmental values alongside the police power of the many affected states. Conventional doctrines, as developed in the Fifth United States Circuit Court in particular, will likely favor admiralty/general maritime jurisdiction, rules and remedies. My paper disagrees, posing three countering themes: l) the BP oil spill is first and foremost an environmental event which Congress has chosen to regulate under the Property and Interstate Commerce Clauses, not the Admiralty Clause; 2) the likely tortious behavior of the blowout’s responsible parties --the drilling of an exploratory oil and gas well on the OCS-- is not “substantially related” to a “traditional maritime activity”; and 3) this determination properly limits admiralty governance to those matters for which it possesses either or both the expertise meriting this role and the institutional capacity to generate this capability. These themes are advanced not only to secure appropriate judicial outcomes in the BP litigation itself, but to serve as a basis for Congress’s anticipated revision of OCSLA and of OPA

Law and Aesthetics: A Critique and a Reformulation of the Dilemmas

This Article both examines these consequences and explains why they have departed so frequently from the ostensible goals of the policies that produced them. It also surveys the principal legal dilemmas that attend aesthetic policy-making, which is sensitive to the values actually at stake in the type of aesthetic controversies that legal institutions are called upon to resolve in American society. The aesthetic controls addressed are those adopted in such areas as zoning, historic or environmental preservation, and urban design to shape the visual appearance of the built and natural environments. The content of the aesthetics idea is explored through two hypotheses advanced to explain the social interest underpinning these controls. The first, which has dominated aesthetic-legal thought throughout this century, locates that interest in the preservation or creation of a visually beautiful environment. The second, which is outlined in Part IV of this Article, de-emphasizes visual beauty in favor of the compulsion of groups to protect their identity and, more broadly, cultural stability itself by forestalling threats to environmental features and settings that anchor or reinforce these reciprocal values

Chayes, Ehrlich, Lowenfeld: International Legal Process: Materials for an Introductory Course

A Review of International Legal Process: Materials for an Introductory Course (2 vols. with supp.) by Abram Chayes, Thomas Ehrlich, and Andreas Lowenfel