Category Archives: Land use and Environment

‘Projecting and Puppeteering’

Maureen E Brady, Property and Projection, 133 Harvard Law Review (forthcoming 2020), available at SSRN. Suppose an unfriendly neighbor, professional rival, disgruntled employee, or random malcontent decides to send a message – from you. Said enemy projects words or images onto your real estate – the facade of your home or office building, say – […]

Brian Preston, ‘Mapping Climate Change Litigation’

ABSTRACT Litigation raising climate change issues has increased in the number and types of cases and the countries and jurisdictions in which the litigation has been brought. This article briefly maps this climate change litigation. In some places, the territory is well charted but in other places these is still terra incognita. In the latter […]

Lynda Warren, ‘Is Japanese Knotweed inherently damaging? Network Rail Infrastructure Ltd v Williams and Waistell [2018] EWCA Civ 1514′

ABSTRACT The Court of Appeal in Network Rail Infrastructure Ltd v Williams and Waistell [2018] EWCA Civ 1514 held that the encroachment of Japanese Knotweed can be grounds for an action in nuisance if development or improvement of the property would require the treatment of contaminated soil and/or its licensed removal as controlled waste. The […]

‘Notre Dame Fire leads to environmental lawsuit’

“Following the devastating fire at Notre Dame Cathedral last April in Paris, which we covered here, and in yet another example of how climate activism has recently become entangled with the arts and the cultural sector, there has been strong criticism from one environmental activist group in Paris regarding lead poisoning concerns …” (more) [Julia […]

Ruhl and McGinn, ‘The Roman Public Trust Doctrine: What Was It, and Does It Support an Atmospheric Trust?’

ABSTRACT Through building waves of legal scholarship and litigation, a group of legal academics and practitioners is advancing a theory of the public trust doctrine styled as the ‘atmospheric trust’. The atmospheric trust would require the federal and state governments to regulate public and private actors to reduce greenhouse gas emissions so as to abate […]

Flatt and Zerbe, ‘Climate Change Common Law Nuisance Suits: A Legal-Efficiency Analysis’

ABSTRACT Multiple common law nuisance lawsuits have been filed against companies to either get them to stop emissions of greenhouse gases or to seek damages for harm from climate change. In American Electric Power v Connecticut, the United States Supreme Court held that federal common law nuisance lawsuits for injunction of emissions activities were preempted […]

Steven Shavell, ‘The Mistaken Restriction of Strict Liability to Uncommon Activities’

ABSTRACT Courts generally insist that two criteria be met before imposing strict liability rather than basing liability on the negligence rule. The first – that the injurer’s activity must be dangerous – is sensible because strict liability possesses general advantages over the negligence rule in controlling risk. But the second – that the activity must […]

Pappas and Flatt, ‘The Costs of Creating Environmental Markets: A Commodification Primer’

ABSTRACT … the Article constructs a model for evaluating market emergence and success, and with this framework, the Article makes two major contributions. First, it offers a concrete and pragmatic method for gauging the desirability of market tools for certain resources in the environmental context and beyond. For instance, the model can identify specific situations […]

‘The Limits of Limited Liability: Evidence from Industrial Pollution’

“For more than 150 years, limited liability has been a defining characteristic of many business entities. This legal concept is often credited with spurring economic growth and the development of capital markets; some call it ‘one of man’s greatest inventions’ (The Economist, 2016). Economists and policymakers have long recognized, however, that limited liability engenders a […]

Jonathan Gilligan, ‘Carrots and Sticks in Private Climate Governance’

ABSTRACT When public governance fails to address important environmental threats – such as climate change – private governance by firms, not-for-profits, individuals, and households can produce significant reductions in greenhouse gas emissions. Private governance can take the form of either a carrot or a stick, using incentives or punishments. Shareholder activism as a form of […]