Sovereignty and the American Courts at the Cocktail Party of International Law: The Dangers of Domestic Judicial Invocations of Foreign and International Law

Part I of this Article presents the background regarding the invocation of foreign and international law in federal courts. It discusses their use as precedential and supportive sources of authority and as the bases for legal liability. Part II discusses the fundamental infirmities and dangers related to the invocation of international and foreign law in U.S. jurisprudence. Further, this Part discusses the implications of such behavior on sovereignty, the rule of law, democratic values, constitutional adherence, foreign policy, and development. In conclusion, this Article finds that adherence or even reference to foreign and international authorities should be avoided if the foundational principles of the Republic are to be respected

The Meaning of Federalism in a System of Interstate Commerce: Free Trade Among the Several States

As states become dissatisfied with either the direction of federal policy or the gridlock that seems like a barrier frustrating action, their disdain or impatience is increasingly manifest in state legislative or regulatory efforts to reach big issues normally reserved to federal resolution. Increasingly, such efforts to stake a position on issues of national or international importance are testing the limits of state autonomy within a system of federalism that includes robust protection for the free flow of commerce among the several states. This Essay provides the primary historical backdrop against which these measures should be judged with a particular emphasis on the importance of sustaining a national market for commerce within our system of federalism. Too often state initiatives are framed in terms of “states’ rights” seeking to capitalize on the rhetorical power that phrase offers. If the states are told they cannot do X or Y, those who favor local control within our democratic republic find appealing arguments that national policy preventing states from acting is excessive. When states are told they cannot act alone, some may fear that the federal government is becoming too big and controlling and become suspicious of the claim of state disempowerment. But even those who favor localized control must be cautious in advocating in favor of “states’ rights,” a concept that is often nothing more than a siren song. Those rocky shores sometimes harbor positions that would allow states to act in a manner that is quite contrary to perhaps the most important aspect of American federalism embodied in the Constitution— the constitutional facilitation of a national free trade zone known as the United States wherein each independent unit is disabled from erecting barriers to trade under what is popularly termed the Interstate Commerce Clause (although it may more appropriately be called the Commerce Among the Several States Clause)

Economics-Based Environmentalism in the Fourth Generation of Environmental Law.

Environmental protection and economic concerns are not mutually exclusive. This article explores some of the issues of economic analysis that might arise as we approach the fourth generation of environmental law. It explains ways that economic analysis can be employed to generate the best environmental rules, including measures under what this article terms as economics-based environmentalism. Economics-based environmentalism contends that the advantages of using economic principles within a “polycentric toolbox” of environmental law come from the benefits available in private ordering, markets, property rights, liability regimes and incentives structures that will better protect the environment than alternatives like state-based interventionist, prescriptive rules that lack the adaptability and tailored effect of economics-based rules. Economics-based environmentalism explains that environmental protection can be accomplished if the government sets rules that allow private markets to price resources, establishes enforceable rights in those resources, and allows individuals to freely trade such rights. To the extent that the state is unwilling to surrender substantial control to private actors and the market, economics-based environmentalism calls for the injection of these economic standards into the development of state-based regulatory law, hoping that those state laws will try to harness the economic ideas. One proposal in the article calls for embedding in law a more stringent requirement that agencies prove the existence of market failure and the exhaustion of economic alternatives to governmental regulation before being allowed to proceed with any top-down, interventionist governmental regulation. The last portion of the article focuses on theories from law and economics, including those related to the self-perpetuating behavior of bureaucracies, public choice models of legislation and regulation, and capture theory as barriers to any effective reform in the emerging fourth generation of environmental law – whether it be those reforms proposed by others or even those suggested earlier in the article

Public Lands and the Federal Government\u27s Compact-Based Duty to Dispose : A Case Study of Utah\u27s H.B.148–The Transfer of Public Lands Act

Recent legislation passed in March 2012 in the State of Utah—the “Transfer of Public Lands Act and Related Study,” (“TPLA”) also commonly referred to as House Bill 148 (“H.B. 148”)—has demanded that the federal government, by December 31, 2014, “extinguish title” to certain public lands that the federal government currently holds (totaling an estimated more than 20 million acres). It also calls for the transfer of such acreage to the State and establishes procedures for the development of a management regime for this increased state portfolio of land holdings resulting from the transfer. The State of Utah claims that the federal government made promises to it (at statehood when the federal government obtained the lands) that the federal ownership would be of limited duration and that the bulk of those lands would be timely disposed of by the federal government into private ownership or otherwise returned to the State. Longstanding precedents support the theory that Utah’s Enabling Act is a bilateral compact between the State and the federal government that should be treated like it is, and interpreted as, a binding contractual agreement. Utah’s TPLA presents fascinating issues for the areas of public lands, natural resources, federalism, contracts, and constitutional law. It represents a new chapter in the long book of wrangling between states in the West and the federal government over natural resources and public lands ownership, control, and management. The impact is potentially considerable—thirty-one percent of our nation’s lands are owned by the federal government, and 63.9% of the lands in Utah are owned by the federal government. This Article provides an overview of the legal arguments on both sides of the TPLA debate. In the end, there is a credible case that rules of construction favor an interpretation of the Utah Enabling Act that includes some form of a duty to dispose on the part of the federal government. At a minimum, the legal arguments in favor of the TPLA are serious and, if taken seriously, the TPLA presents an opportunity for further clarification of public lands law and the relationship between the states and the federal government regarding those lands. Moreover, other states are exploring similar avenues to assert their claims vis-à-vis the federal government and are in various stages of developing land transfer strategies that will model or learn from the TPLA. That fact further underscores the need for a renewed serious and informed legal discussion on the issues related to disposal obligations of the federal government. This Article takes a first step into that discussion

Thinking Like Thinkers: Is the Art and Discipline of an Attitude of Suspended Conclusion Lost on Lawyers?

In his 1910 book, How We Think, John Dewey proclaimed that “the most important factor in the training of good mental habits consists in acquainting the attitude of suspended conclusion. . .” This Article explores that insight and describes its meaning and significance in the enterprise of thinking generally and its importance in law school education specifically. It posits that the law would be best served if lawyers think like thinkers and adopt an attitude of suspended conclusion in their problem solving affairs. Only when conclusion is suspended is there space for the exploration of the subject at hand. The thinker must approach every problem with an open-mind, without a predetermined conclusion. She must overcome the anxiety associated with suspense. One attains “the attitude of suspended conclusion” when developing an art and discipline that quells the impulse for the satisfaction of reaching a conclusion, that accepts an operative state of doubt, and that maintains the patience for careful and thorough inquiry before reaching an eventual conclusion. A conclusion is the end of a reflective process, not an end in and of itself. Perhaps the insight on this matter seems obvious and straightforward. This Article defends the proposition that this lesson deserves attention precisely because it is so obvious but too often ignored as to make its study intellectual instead. A discipline of following a rule of suspended conclusion can act like a trigger lock for the mind, disabling the tendency to “shoot first and ask questions later.” The rule of suspended conclusion must be engaged before firing the synapses of thought. The Article explains that unpeeling the obviousness of the attitude – to understand its rich core and to see the tendencies that rot its practice – allows us to develop a valuable art and discipline in the thinking process. The Article includes sections on the educator’s role in “thought”; the importance of developing an appreciation for an art and discipline toward attaining the attitude of suspended conclusion; a brief survey on the research related to psychological tendencies or poor habits that form barriers to the effective adoption – or the positive habitual substitution – of an attitude of suspended conclusion; and wraps up with a discussion of whether lawyers, by the inherent nature of their task, face insurmountable obstacles to developing the discipline of an attitude of suspended conclusion and whether they can exercise the freedom to think like thinkers within their professional obligations. Lawyers certainly face some unique obstacles to adopting an attitude of suspended conclusion, making attention to it all the more important

Youth Culture and Identity: A Phenomenology of Hardcore

This study seeks to explore the experience of individuals who are members of the hardcore youth culture. The hardcore community is a musiccentered youth culture that draws its roots from punk. Today, hardcore is also experiencing heightened attention from mass media and popular music institutions, making it an interesting instance in which boundaries between youth culture and hegemonic or dominant culture are being broken down, and the way it is influencing the experiences members of the community have. The project uses data gathered through extensive interviews in order to develop a large pool of experience from which to draw upon. In the end, this study seeks to answer the question: what is it to be a part of the hardcore community in Maine? The study proceeds through four separate chapters. The first takes a look at relevant literature concerning youth (or sub-) culture through various traditions including psychology and cultural studies, and also lays out the workings for a phenomenology of hardcore. The second chapter explains phenomenology as both method and methodology, and also touches on the interview processes used in data gathering process. The third chapter contains the first two steps (description and reduction) of the phenomenological method. The fourth chapter contains the final step of the phenomenological method (interpretation), as well as concluding remarks