Litigation
William Brennan, Bob Woodward, and the Ethical Duties of a Justice
Washington Post editor/reporter Bob Woodward is in a good amount of hot water, and deservedly so, for publicly insinuating that White House economic advisory Gene Sperling threatened him in a recent e-mail exchange. As it turns out, when the exchange was revealed, Sperling was merely saying — in a very friendly way — that Woodward …
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CONTINUE READINGMiddle of the First Inning: Big Cola 1, Public Health 0
The NY Times reports that a New York trial court has invalidated New York’s rule banning giant-sized sugar soft-drinks. The court’s decision can be found here. On a quick read, the decision seems to rest on two grounds: 1. The rule exceeds the powers of the public health board, despite a provision in the New …
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CONTINUE READINGOT 2012 and the Environment
This Supreme Court Term features a number of environmental cases. We’re now about two-thirds of the way through the Term, so I thought it might be helpful to post a summary of the cases. My impression is that the Court is interested in environmental law to the extent that it seems to impinge on the …
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CONTINUE READINGWhat IS a Nuisance, Anyway?
If you’re a Property teacher, you have probably taught nuisance law. If you are a Land Use teacher, you have probably taught Lucas v. South Carolina Coastal Council, which relies on nuisance law to establishing “inherent limitations on title.” More specifically, you have probably taught the Restatement standard for nuisance, which states that an activity …
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CONTINUE READINGTakings, Standing, and Those Nasty Neighbors
Most lawyers reading this page are familiar with Nollan v. Calif. Coastal Comm’n, the 1987 Supreme Court case holding that exactions in exchange for land use permits must show an “essential nexus” between the purported harm generated by the permit and aims of the exaction. (More precisely, Nollan gave heightened scrutiny to finding that nexus.). …
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CONTINUE READINGNinth Circuit takes up NRDC v. Salazar en banc
The Ninth Circuit today issued an order granting rehearing en banc in NRDC v. Salazar, meaning that an 11-member panel will now reconsider the 3-judge panel decision issued last July. (Hat tip: Endangered Species and Wetland Report.) This is very good news, because the (split) panel decision was wrong in important respects. (Full disclosure — …
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CONTINUE READINGThe US wins the latest round in the Casitas saga
In 2008, the Federal Circuit surprised a lot of legal academics by ruling that the Casitas Municipal Water District’s takings claim, which arose from a requirement that the district construct and operate a fish ladder to allow endangered steelhead to pass its diversion dam, should be analyzed using the physical takings test. That didn’t resolve …
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CONTINUE READINGWhale Wars in the Courtroom
Earlier today, Sea Shepherd Conservation Society, an anti-whaling activist group—and the only environmental group with its own reality television series—petitioned the nation’s highest court. In its petition to the U.S. Supreme Court, Sea Shepherd seeks review of a December 17, 2012 injunction from Ninth Circuit Court of Appeals Judge Alex Kozinski that prevents the Sea …
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CONTINUE READINGCellulosic Biofuel mandate for 2013
I mentioned the other day that the D.C. Circuit struck EPA’s cellulosic biofuel mandate for 2012. Today, the New York Times reported on EPA’s 2013 quota. EPA has proposed to raise the mandate to 14 million (ethanol-equivalent) gallons for 2013. EPA explicitly stated that it believes its 2013 proposal “is consistent with” the D.C. Circuit …
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CONTINUE READINGIf the Constitution is Dead, where does that leave Takings?
Justice Scalia is getting a lot of attention for his comment that the Constitution is “dead, dead, dead”, but obviously he didn’t mean that the Constitution is no longer in effect. (See? Intent theory sometimes is helpful, Nino.). Rather, he meant that the Constitution does not have a meaning that changes over time. It has …
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