Reversing the ‘Tragedy’ of the Commons? Sustainable Management and the Commons Act 2006

The Commons Act 2006 is the first statute since the Commons Registration Act 1965 to address the problems associated with the management of common land in England and Wales. A key focus for the 2006 Act is the introduction of mechanisms for the sustainable management of common land, including self‐regulatory commons councils. This article examines the ‘sustainable’ management of common land in historical and contemporary perspective. It sets the 2006 Act, and the sustainable management of common land, in the wider context of the ongoing debate triggered by Hardin's ‘Tragedy of the Commons’ and subsequent institutional and post‐institutional scholarship on common pool resource management. It uses historical and qualitative research data drawn from three case studies to demonstrate the irrelevance of Hardin's thesis in an English context, and identifies the Commons Registration Act of 1965 as the true ‘tragedy’ of the English and Welsh commons. The case studies also illustrate the challenges posed by the introduction of legal mechanisms to promote the ecologically sustainable management of the modern commons, and inform the critique of the Commons Act 2006 developed in the article.     

Fair Share Housing for Managed Growth

The Mt. Laurel decision represents the culmination of judicial thinking in exclusionary zoning type litigation. Implicit in decisions striking down local land use controls found to be “exclusionary” in nature has been the notion that a community has a legal duty to accept a “fair share” of the housing needs of the region. Fair share housing now begins to take on some substance with the New Jersey court's decision. Similar language on responsibilities for regional needs may be found in the Pennsylvania Supreme Court decisions in Kit-Mar and Girsh, and in the federal district court's opinion in Petaluma.     

PROTECTING LIVES,CAREERS, AND PUBLIC CONFIDENCE: FLORIDA'S EFFORTS TO PREVENT OFFICER‐INVOLVED DOMESTIC VIOLENCE

Florida's innovative Law Enforcement Families Partnership (LEFP) was created to reduce and prevent officer‐involved domestic violence in the state. Administered by the Institute for Family Violence Studies at Florida State University and supported by the criminal justice and victim's advocacy communities, the LEFP is the first statewide project of its kind. It includes several components, the cornerstone of which is an online curriculum that teaches officers about the dynamics and consequences of domestic violence perpetrated by officers. This article describes the project and early data from the surveys attached to the curriculum.     

Bonnieview v. Woodmont: Court Sorts out Environmental Liability between Homeowners and Developers

Bonnieview Homeowners Ass’n v. Woodmont Builders, LLC,—F. Supp. 2d—, No. Civ. A. 03CV4317(DRD), 2009 WL 2999355 (D.N.J. Sept. 22, 2009), was a suit brought by a homeowners’ association and its individual members against the developers of the property where their homes were located and the municipality. In a recent opinion, the United States District Court for the District of New Jersey made several important rulings applying federal and state environmental statutes and common law. First, the developers were potentially liable to plaintiffs under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), where their soil grading and stockpiling activities distributed previously contaminated soil around the site, which had been used as a fruit orchard. Second, however, the court prohibited plaintiffs from recovering under CERCLA or New Jersey's Spill Compensation and Control Act (Spill Act) because they had not incurred any environmental cleanup costs compensable under the two statutes. Third, plaintiffs were innocent purchasers not subject to CERCLA liability under a 2002 amendment to the statute. A negligence claim against the municipality failed, however, because the municipality owed no duty of care to plaintiffs. The court also assessed plaintiffs' other federal and state statutory and common law claims.     

Letters to the Editor

While many basked in the euphoric rays emanating from the New Jersey state court Mt. Laurel decision, commentators and litigators in the land use field were tempering their sentiments with the knowledge of the U.S. Supereme Court's impending consideration of a primary federal land use challenge in Warth v. Seldin. The Court's 5-4 decision, affirming a federal appeals court'ss affirmance of the dismissal of an exclusionary zoning challenge by various individuals and groups, was predicated on the elusive concept of “standing.” If a sufficient case or controversy existed, according to the Court, or if the various classes of plaintiffs alleged a sufficiently personal stake in the outcome of challenge, their right to challenge Penfield's zoning could be established. In Warth the majority took a restrictive view and, on a one by one basis, denied standing to each of the plaintiffs.     

Case Baiting

In 2014, New Jersey passed the Sports Wagering Act, permitting sports betting at state casino and racetrack venues, in direct conflict with the federal Professional and Amateur Sports Protection Act. In 2017, South Dakota passed Senate Bill 106, requiring that certain e-commerce retailers collect and remit sales tax, in violation of federal law. The two U.S. Supreme Court decisions arising from challenges to these state statutes—South Dakota v. Wayfair and Murphy v. NCAA—exemplify U.S. Supreme Court “case baiting.” Case baiting is a tactic states implement to challenge federal directives by passing state legislation that directly conflicts with federal law to lure the Court into granting certiorari and ruling in their favor. This article argues that South Dakota's and New Jersey's triumphs pave the way for other jurisdictions to pursue similar strategies across multiple legal issues such as abortion restrictions and immigration law. In addition, this article suggests that case baiting invites further scholarly exploration of important policy considerations, including the use of this tactic as a novel approach to the application of law and strategy, whether case baiting promotes the Court's progression toward a more quasi-legislative role, and whether passing conflict legislation violates state legislators’ oaths of office.     

Law and Ojibwe Indian “Traditional Cultural Property” in the Organized Resistance to the Crandon Mine in Wisconsin

Section 106 of the 1966 National Historic Preservation Act (NHPA) requires that federal agencies “must take into account” the impact of their regulatory actions on historical properties, among them the “traditional cultural properties” of American Indian tribes. Conceiving of tribes' own social practices in terms of property creates the possibility for making claims about its loss for tribes, but it also problematizes their cultures' inherent dynamism that implicates its putative authenticity. This article offers commentary on the implications of practicing a form of action anthropology for the concept of culture via discovery and explication of such property under the NHPA. The context is a small American Indian community's effort to resist the development of a copper‐zinc mine adjacent to its reservation, on land that holds significant meaning for the community.     

To lease or not to lease? The leasing of indigenous statutory lands in Australia: lessons from Canada

In Australia, land rights legislation provides statutory schemes for the transfer of land to Indigenous peoples. The first significant land rights legislation was passed by the Australian Commonwealth government in 1976. This was the Aboriginal Land Rights (Northern Territory) Act (ALRA) 1976 (Cth). In 2006, the Australian Commonwealth government passed significant amendments to the ALRA. One of the key amendments introduced the leasing of Aboriginal ‘township lands’ held under that Act. It is these leasing amendments which are a focus of this article. A primary motivation behind the amendments was to decrease poverty in Indigenous communities and to allow for economic development on Aboriginal lands. This article critiques the township leasing scheme under the amended Act. It questions whether the new leasing arrangements are the most appropriate forms of leasing to achieve economic development on Aboriginal lands and to benefit the Aboriginal communities who hold these lands. In 2008, leasing amendments were passed to Queensland's statutory land scheme in the Aboriginal Land Act 1991 (Qld) and these amendments are subject to review in this article. Furthermore, the article examines alternative forms of leasing used for economic development on Indigenous reserve lands in Canada and whether there are lessons that Australia could learn from these tenures and their modes of leasing.     

Fatalities Due to Indigenous and Exotic Species in Florida

Florida's climate is suitable for many potentially hazardous animals, including both indigenous and exotic species, which are frequently kept as in zoos or as pets. This has resulted in many unforeseen fatal encounters between animals and the ever expanding human population. While the literature and knowledge pool for more common types of deaths referred to medical examiner/coroner's offices is abundant, the appreciation of wildlife and exotic pet‐related deaths is far less widespread. We report seven animal attack‐related deaths that occurred in Florida. The inflicted injuries included blunt and sharp force injuries, asphyxia, drowning, and envenomation. The underlying cause of death, however, was always a result of the human/animal interaction and in many cases related to human error and failure to appreciate the potentially dangerous behavior of nondomesticated species. These cases illustrate the varied circumstances and pathophysiologies associated with deaths due to indigenous and exotic species and the importance of the multidisciplinary approach in the medicolegal investigation of these cases.     

Living in a Policy State: From Trust for Sale to Trust of Land

The Trusts of Land and Appointment of Trustees Act 1996has transformed the nature of co-ownership interests in land.The trust for sale, which governed dealings in co-ownedproperty under the Law of Property Act 1925, and whichmade sale the presumptive object of co-ownership, has been replaced by a trust of land, under which co-owners retainan interest in the land itself, rather than its capital value.This article considers the likely impact of this legislativepolicy departure, particularly in relation to the court'swillingness to grant an order for the sale of co-owned propertyon application by a creditor, and against the wishes of anon-debtor co-owner occupier.     

Delay reduction in the federal courts: Rule 50(b) and the Federal Speedy Trial Act of 1974

During the 1970s, 94 federal district courts implemented two major policy initiatives, Rule 50(b) of theFederal Rules of Criminal Procedure and the Federal Speedy Trial Act, that were designed in Washington to combat delay in the processing of federal criminal cases. Both of these initiatives established a national priority of delay reduction in criminal cases, encouraged local district court planning for delay reduction; established reporting procedures for monitoring local compliance, and provided for the determination of quantitative goals for the time to disposition of criminal cases. Neither initiative mandated specific activities for delay reduction; this determination was left to the discretion of local federal district courts. This research examines the effectiveness of Rule 50(b) and the Speedy Trial Act by constructing a 150-month time series of three measures of case processing time. A multiple-intervention time-series model found that both of these initiatives contributed to the dramatic reduction in the time to disposition in federal criminal cases. These effects persisted after controls for changes in case characteristics and judicial resources were introduced.Points of view expressed in this research are those of the author and do not necessarily represent the official position of the U.S. Department of Justice.     

Family‐Centered Practice in Florida: Family Court Actions and Perceptions

Family and dependency courts can become valuable partners in efforts to stem the tide of child maltreatment using a family‐centered strategy. Florida's response to a 2008 federal Child and Family Services Review included a commitment to implement family‐centered practice in child protection services and the courts that hear these cases. Evidence of this implementation was documented in a formative evaluation conducted in 2010 and 2011. Findings based on interviews with dependency judges, Children's Legal Services attorneys, and Guardian ad Litem volunteers provide useful insights on how these practices were perceived and implemented.     

A COMMENT. The road to court improvement in child protection cases

Judges are the key to court reform in child protection proceedings but legislative mandates cannot guarantee the requisite level of judicial commitment. Lack of full implementation of the Adoption Assistance and Child Welfare Act of 1980 demonstrates that rather than rely on statutory language, court reformers ought to increase judicial understanding of the provisions of federal law through initiatives such as cross-training. From December 1996 to June 1998, Kentucky's Court Improvement Project delivered 11 regional cross-training sessions to more than 550 judges, attorneys, social service personnel and other child advocates. Based on a statewide survey, cross-training increased significantly awareness of federal child protection objectives among the state's judges. Awareness of a policy among those expected to implement it is the first step toward implementation.     

The Making and Unmaking of Feminicidio/Femicidio Laws in Mexico and Nicaragua

This article examines the contested process of law‐making related to the killing of women which resulted in the criminalization of feminicide (feminicidio) and femicide (femicidio) in Mexico and Nicaragua, two countries in which feminists engaged in legal activism to increase state accountability for gendered violence. Through comparative analysis, we demonstrate the importance of (1) the interaction between shifting local political conditions and supranational opportunities and (2) the position of feminist actors vis‐à‐vis the state and its gender regime in shaping regional variation in the making of laws concerning gendered violence. In Mexico, the criminalization of feminicidio resulted from a successful naming and shaming campaign by local feminist actors linked to litigation in various supranational arenas, and the intervention of feminist federal legislators. In Nicaragua, the codification of femicidio resulted from the state's selective responsiveness to feminist demands in a moment of narrow political opportunity within an otherwise highly consolidated regime. We also examine the unmaking of these laws through their perversion in practice (Mexico) and their intentional undermining (Nicaragua) at the hands of the state. Our analysis demonstrates how states' decisions to enact legislation against gendered violence does not occur solely because they are invested in international legitimacy, but also in response to states' shifting acceptance of the legitimacy of supranational authority itself.     

Same law–same rights? Analyzing why Sweden's disability legislation failed to create equal rights in mental health

This article analyzed the apparent paradox of disability rights in Sweden. Despite strong welfare state traditions and stated Government ambitions to create generous statutory entitlements for all disabled people using a single, comprehensive Disability Act, psychiatric disabilities were principally excluded from the Disability Act's rights and provisions. The study focused on Sweden's Mental Health Reform and Disability Reform using governance perspectives that traced and analyzed the policy-processes of both reforms. Theoretically guided analytical frameworks were developed to help understand the divergent reform outcomes. The first focused on legislative arguments of regulatory specificity and legal enforcement mechanisms to consider whether the Disability Act was formulated in a manner that was easier to apply to certain disabilities. The second analyzed ideological arguments and the influence of Government political beliefs that signaled specific reform ‘visions’ to implementers and thereby influenced policy implementation. The main findings are that both perspectives matter as the dual influences of legislative and ideological differences tended to exclude mental health service users from the Act's generous disability rights. The overall conclusion was that while legislation was an important regulatory mechanism, the Government's underlying ideological reform vision was also an essential governance instrument that signaled Government intentions to implementing agencies and thus influenced the creation of enduring disability rights.     

In the Best Interests of an Indian Child: The Indian Child Welfare Act

Before passage of the Indian Child Welfare Act in 1978, state, private, and federal agencies systematically removed Indian children from their families and tribal communities, placing them with non‐Indian families with little appreciation for the detrimental impact that cultural deprivation would have on these children. State courts often ignored the sovereign authority of tribal courts with regard to their children, and were, more often than not, unwilling to acknowledge the importance of the perspective of the child's tribe and/or extended family members. With passage of the Indian Child Welfare Act in 1978, Congress imposed upon state child welfare practices substantive and procedural requirements to which state courts must adhere, most notably the mandate that state courts must now give primary consideration to the placement of Indian children within their extended families and tribal communities. In addition, federal law requires state courts to recognize tribal court authority and jurisdiction over tribal children. This article reviews the history of federal, state, and private practices that propelled Congress to pass the ICWA, the changes that have resulted from this vital legislation, and the challenges that face courts in ensuring that state courts meet these requirements.     

The meaning of “the public interest” in communications policy—part II: Its implementation in early broadcast law and regulation

For more than a half‐century, as the cornerstone of federal broadcasting and telecommunications policy, the public interest standard has always been subject to some debate. Questions have regularly been raised about its meaning and the extent of the authority it implies for regulation, particularly in the deregulatory environment of the 1980s and 1990s. Part I of this study demonstrated how a deep reading of the pre‐broadcasting state and federal regulatory history reveals that interpretations of the public interest standard that have emphasized broad, diverse, public service programming have entailed a misunderstanding of its real, underlying meaning. This part of the study shows how another definition—i.e., that the public would be best served by protecting economic viability and technological advancement for private industry broadcasters—developed as the predominant doctrine before adoption of the Radio Act of 1927 and Communications Act of 1934, and how that theme came to be the applied interpretation of the public interest during the first two decades of broadcast regulation.     

Protecting the rights of the developmentally disabled: alternatives to the existing statutory and regulatory scheme.

The Developmentally Disabled Assistance and Bill of Rights Act of 1975 and related HEW regulations require each state to establish a system for the protection and advocacy of the rights of developmentally disabled persons as a condition to receiving specified federal funds. This Note contends that, under the present statutory and regulatory scheme, states and governors have broad powers to interfere with the proper functioning of protection and advocacy systems. The Note examines the principal legal remedies, contractual and constitutional, presently available to parties interested in reducing or eliminating such interference, and concludes that such remedies are ineffectual. Instead, the author proposes, the HEW regulations should be revised to strengthen the autonomy of protection and advocacy systems or, alternatively, Congress should amend the 1975 Act to provide for federal administration of such systems.     

From Empire to Law: Customs Collection in the American Founding

This essay investigates the eighteenth‐century origins of the federal administrative state through the prism of customs collection. Until recently, historians and legal scholars have not closely studied collection operations in the early federal custom houses. Gautham Rao's National Duties: Custom Houses and the Making of the American State (2016) offers the most important and thoroughly documented historical analysis to date. Joining a growing historical literature that explains the early development of the US federal political system with reference to imperial models and precedents, Rao shows that the seductive power of commerce over the state within eighteenth‐century imperial praxis required the early federal customs officials to “negotiate” their authority with the mercantile community. A paradigm of accommodation dominated American customs collection well into the nineteenth century until Jacksonian centralizers finally began to dismantle it in the 1830s. The book brings welcome light to a long‐neglected topic in American history. It offers a nuanced, historiographically attentive interpretation that rests on a broad archival source base. It should command the sustained attention of legal, social, economic, and constitutional historians for it holds the potential to change the way historians think about early federal administration. This essay investigates one of the central questions raised in National Duties : How were the early American custom houses able to successfully administer a comprehensive program of customs duties when their imperial predecessors had proved unable to collect even narrowly tailored ones? Focusing on the Federalist period (1789–1800), I develop an answer that complements Rao's, highlighting administrative change over continuity and finding special significance in the establishment of the first federal judicial system.     

PROTECTING OUR CHILDREN FROM SEX OFFENDERS: HAVE WE GONE TOO FAR?

On July 27, 2006, U.S. President George W. Bush signed into law the Adam Walsh Child Protection and Safety Act. This federal statute was created to serve as a tougher, more modern improvement of its predecessor in the ongoing effort to protect children from dangerous sexual predators. However, the Act did not amend the controversial federal mandate that all 50 states include the crimes of kidnapping and false imprisonment against a minor, committed by a nonparent, and without any sexual motivation or misconduct, as a crime requiring a wrongdoer to register as a sex offender. This Note demonstrates how the kidnapping and false imprisonment requirements of the Adam Walsh Act have led to a misuse of state sex offender registries to the detriment of the children they claim to protect. The solution that this Note proposes will provide each individual state with the freedom to decide how, if at all, these contentious offenses will fit into its sex offender registry, taking into consideration the state's unique statutory language, available child protective resources, and constitutional limitations. As a result, petty criminals who do not pose any real or specific threat to children will no longer be grouped with the most dangerous and violent sexual predators, child protective funds will be better utilized, and the public's attention will be refocused on the real threats to children, thereby satisfying the spirit and purpose of the Adam Walsh Act.