Re-examining Acts of God

Applying recent critiques of the construction of nature as distinct from and excluding all that is human, this article examines the concept of an act of God, which exculpates defendants when a disaster is “solely caused” by a “natural” event. The doctrine incorporates a classical separation of the human from the natural—a separation that is now refuted in geography and philosophy. While other areas of law such as patents, food and drug law, and land use policy have begun to acknowledge our changing understandings of human and nature, we have yet to re-examine the acts of god doctrine, which is foundationally built on this classically constructed separation. The neglect is particularly significant in light of the developing modern cultural understanding of climate change and even individual weather events as human-generated. This article suggests that by claiming a pure separation of human and natural, the acts of god doctrine embraces a fiction without indeed admitting it and thereby does damage to public confidence in the law

Introduction to Property, History & Climate Change in the Former Colonies Symposium Special Issue

None available

Liability for Unintentional Nuisances: How the Restatement of Torts Almost Negligently Killed the Right to Exclude in Property Law

This article argues that nuisance was historically unique in tort law because of its special role in protecting property rights.\u27 In other words, nuisance historically had distinct features addressed to the special situation of land. Most importantly, nuisance protected the right to exclude in a way that no other cause of action did. The Second Restatement\u27s change then diminished our rights to private property to the extent that it has been adopted. The majority of courts retain the more logical and defensible position--that property rights are special and nuisance encompasses something more than the idea of negligence

Scaled Legislation & the Legal History of the Common Good

None available

Stealth Constitutional Change and the Geography of Law

Bruce Ackerman\u27s recent book, The Decline and Fall of the American Republic, is a sudden shift from his previous scholarship on constitutional moments and the ability of social movements to generate minor revolutions. By acknowledging how constitutional change did not fit into his model of deliberate, deeply debated movements, Ackerman has shifted the scholarly lens to unintentional and unanticipated structural variations. Ackerman focuses his book on the political processes and events that have fostered potentially illegitimate constitutional remodeling. He acknowledges that certain features of legal scholarship have contributed to a lack of awareness of slow, structural drift, but he does not address the question in earnest, as I do in this Essay. My intention is not only to explain how features of legal scholarship have failed to make us aware of structural constitutional drift but also to use the Essay as an object lesson to prove the possibility of interesting, original, and readable scholarship on slow, structural change. To accomplish this task, I use original research from the Lyndon B. Johnson Presidential Archives to tell a story of stealth change in our constitutional structures when the Appalachian Regional Commission was established

Water, Water, Everywhere: Surface Water Liability

By 2030 the U.S. will lose around $520 billion annually from its gross domestic product due to flooding. New risks resulting from climate change arise not only from swelling rivers and lakes, but also from stormwater runoff. According to the World Bank, coastal cities risk flooding more from their poor management of surface water than they do from rising sea levels. Surface water liability governs when a landowner is responsible for diverting the flow of water to a neighboring parcel of land. Steep increases in urban flooding will make surface water an enormous source of litigation in the coming decades. But surface water jurisprudence is ill equipped for this influx. The law of surface waters remains cumbersome, antiquated, and confusing. Furthermore, the doctrine itself has exacerbated the problem by privileging land development over maintaining natural landscapes, thereby eliminating what would have been carbon sequestration devices, as well as natural buffers against storm surges, sea level rise, and flooding. This Article critiques surface water liability rules through original research into the agricultural science that supported these legal doctrines. By establishing how the current legal doctrines emerged from science now known to be highly flawed, this Article demonstrates the need to break with past doctrines and engage in a genuine rethinking of how to manage surface water liability in the twentyfirst century. Finally, this Article proposes a new liability rule that would manage landowner expectations while avoiding the pro-development bias currently entrenched in the jurisprudence

Missionaries to the Wilderness: A History of Land, Identity, and Moral Geography in Appalachia

This article revisits the relationship between missionaries and Appalachian stereotypes, bringing to the discussion new developments in geographical theory and the intellectual history of ideas of wilderness. The article argues that missionary activities during the early twentieth century are best understood through their beliefs about wilderness and particularly about the moral climate of man within it. In this way the missionaries also contributed to the process of intermingling ideas about the land and the people and thereby contributed to the formation of a quasi-ethnic regional identity in the American public consciousness—and also substantially changed Appalachia by applying a set of hierarchical land values that stemmed from ideas about wilderness