Dikgang Moseneke was born in Pretoria in December 1947. At the age of 15, he was arrested, detained and convicted of participating in anti-apartheid activity and was sentenced to 10 years imprisonment. While in prison, Moseneke earned a BA in English and political science, as well as a B Juris degree from University of South Africa and later completed an LLB. Justice Moseneke began his professional career in 1976 as an attorney’s clerk in Pretoria. In 1978 he was admitted and practiced for five years as an attorney and partner at the law firm Maluleke, Seriti and Moseneke. He was called to the Bar in 1983 and practiced as an advocate in Johannesburg and Pretoria. In 1993, he was elevated to the status of senior counsel.

Justice Moseneke served on the technical committee that drafted the interim constitution of 1993. In 1994, he was appointed Deputy Chairperson of the Independent Electoral Commission, which conducted the first democratic elections in South Africa. In September 1994, he accepted an acting appointment to the Transvaal Provincial Division of the Supreme Court. Before his appointment as Justice of the Constitutional Court, Justice Moseneke was a Judge of the High Court in Pretoria. In June 2005, Justice Moseneke was appointed Deputy Chief Justice of the Republic of South Africa.

Justice Moseneke is a founding member of the Black Lawyers’ Association and of the National Association of Democratic Lawyers of South Africa. He has served in several community and non-governmental organizations, holds several honorary doctorates and has received numerous awards of honor, performance and excellence. Justice Moseneke is married and has a daughter and two sons.

This essay examines the impact of Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), the first appellate federal court decision on the constitutional validity of marriage exclusion laws. The author argues that the major contribution of the Perry decision is to illuminate the meaning of animus, a term that is sharply contested in Equal Protection jurisprudence, and to explicate its relationship to standards of review. The Ninth Circuit holds that evidence of animosity toward a disfavored group triggers a heightened rational basis standard of review. The Supreme Court has not yet settled on how to analyze evidence of animus. In his dissent in Romer v. Evans, Justice Scalia ridiculed the idea that believing homosexuality to be immoral could be compared to racial or religious bias. By contrast, in her concurrence in Lawrence v. Texas, Justice O’Connor articulated the principle adopted by the Ninth Circuit in Perry: that laws driven by animus toward a social group are subject to a “more searching” version of rational basis review. The majority of Justices, however, appear to be gunshy about even acknowledging the existence of heightened rational basis review, even though they have been relying on it sub silentio for several decades. The Perry court provides the fullest articulation of it to date.

The Court of Appeals in Perry also takes a new perspective on how courts should assess the validity of popularly enacted initiatives such as Proposition 8. For both proponents and opponents of popular constitutionalism, the gay marriage debates raise the question of whether voters or courts should get the last word in a constitutional democracy when they take polar opposite positions on a minority rights issue. The Perry opinion would impose less a death knell to such initiatives than a set of speed bumps, through which courts would analyze whether a discriminatory provision was the retraction of a right or a failure to extend it, and whether it had a demonstrably legitimate purpose, other than simply the imposition of stigma. In the gay marriage context, the court left open the possibility that limiting marriage to different sex couples could be justified by the desire to discourage “accidental procreation.” However, based on evidence about the campaign to pass Proposition 8, the court found that animus had been the dominant motivation in this case.

This article suggests that Lucas was primarily an attempt by the Court to simplify the judicial task of resolving what Robert Gordon refers to as the "hard cases" involving land use disputes, and that, with respect to laws protecting wildlife, the Court did not succeed in its quest. "Hard cases" arise because the Court's approach to land use disputes that arise in a constitutional setting requires judges to arbitrate among reasonable property uses in a regulated commons of relative rights. By substituting a reflexive, "bright line" rule for "artful harm-preventing characterizations" and other highly flexible prudential memes, like "noxious use" and "average reciprocity of advantage," the Lucas Court may have been trying to get out of Gordon's relative rights box by converting a landowner's relative use right into an unassailable privilege, thereby simplifying the task of the lower courts. But Lucas may have perversely achieved precisely the opposite result because the Court did not completely eliminate these atavistic doctrinal defenses. Instead, the majority tried to cabin them by anchoring them to common law principles. However, these principles come from an era when property rights were anything but absolute, and remain frozen in that earlier time, when a pig in a parlor was a nuisance and property ownership included responsibilities to the larger community. These principles tell a very different story and potentially justify a wide array of land use restrictions, including those protective of wildlife.

The Court's reliance on common law principles to craft an exception to its per se compensation rule misapprehended the continued robustness of old maxims, such as those restricting the uses to which private property can be put when they threaten wildlife, and thus potentially created an exception much wider than intended. Far from simplifying the takings catechism, the resultant misalignment of these principles with landowners' current, albeit misguided, "understandings" of the State's power over the "bundle of rights" acquired with the title to property, reveals that the Lucas Court made a major error. This error will result in the continuation of the muddle of the relative rights model, with all of the attendant difficulties of reconciling relational rights with absolute ownership norms, the very "muddle" of takings jurisprudence, this article postulates, that the Court sought to undo in Lucas. The error all but guarantees continued conflict and confusion over the extent of those rights whenever restrictive laws are applied. All is not lost, however, because by making common law understandings of land ownership part of the baseline of any post-Lucas takings analysis, the Court may have inadvertently created a golden opportunity for a return to a more neighborly society and a more ecologically sensitive land use ethic, in which conflicts over the uses of private property disappear.

The article uses the example of wildlife laws in which to develop these disparate thoughts. Part II briefly discusses the effect of wildlife protection regulations on private land use, and the equity issues raised by their idiosyncratic application. Part III shows how English understandings about the rights and duties of landowners influenced colonial expectations about similar matters at the time of the founding of this country. These understandings are quite different from the ones we have today about property ownership and reveal a legal convention substantially encumbered by communal obligations, including the obligation to protect wildlife. While Locke's view of private property as a pantheon of important political liberty rights played a formative role in the early rhetoric of this country, it did not reflect or disturb long-held understandings about the conditional and communally restricted nature of rights in property. It is the encumbered, non-Lockean view of property that undergirds the background principles of most states' common law. Part III additionally shows how early colonial law also harbored a deep-seated hostility toward wilderness and explains how some English property doctrines were changed in this country to facilitate cultivation of wild (or "waste") lands, the very lands that are prized today as wildlife habitat.

Part IV of the article traces the common law roots of our modern wildlife laws and shows how the common law doctrines of state wildlife trust and public trust have protected wildlife in this country because of their importance as communal resources. But this review of the historical antecedents of various common law doctrines and their present day application reveals a legacy at odds with the obvious intent of the majority in Lucas to fashion a narrow exception to the Court's per se compensation rule and with the exclusive, absolute dominion expectations of most modern landowners. Part V of the article takes a slightly more theoretical look at the communal values underpinning the doctrines described in part IV by examining the writings of several property scholars who fear that modern "property rights talk" may suppress these more propitious norms. The article concludes that the Lucas exception may allow wildlife to slip through the Court's takings net. But, unless modern expectations about the correlative rights and obligations of property ownership are aligned more closely with the communal values reflected in the background principles of common law discussed in part V, the legacy of Lucas will be continued conflict between the individualistic aspirations of private landowners and the more commonweal goals of government regulators, and a golden opportunity to effectuate a more civil society created by the Court's exception will have been lost.

This article chronicles the government's response to September 11 to make the case that we have relied upon such a double standard. The article then argues that the double standard we have employed is wrong as a constitutional and normative matter, counterproductive in terms of increasing security, and likely to pave the way for future incursions on citizens' rights. As a normative matter, the author contends that while it is not irrational to focus our investigation on certain Arabs and Muslims, given the makeup of Al Qaeda, it is not legitimate to deny to foreign citizens the constitutional rights of due process and political freedoms, as these rights do not turn on citizenship, but on personhood. As a security matter, he argues that the double standards we have relied upon undermine the legitimacy of the war on terrorism, and decrease the likelihood that we will get meaningful cooperation from the targeted communities as we search for potential threats.

Finally, as a historical matter, the author shows that what we do to immigrants today often creates precedents that can be extended to citizens tomorrow. The example alluded to in the article's title is the Enemy Alien Act of 1798, which authorizes the jailing of any citizen of a country with which we are at war, based solely on their nationality, and irrespective of their loyalty or conduct. In World War II, the underlying rationale for this law was extended to U.S. citizens of Japanese descent, through the prism of race, and ultimately 70,000 of the 110,000 detainees were U.S. citizens. Thus, the author maintains that in assessing whether and to what extent liberty should be sacrificed in the name of security, we should avoid the easy way out of targeting vulnerable minorities, and should adopt only those measures that we would tolerate if applied equally to all.

While much has been written about the adverse environmental and economic impacts of fish farming, including concerns about moving these activities offshore, little has been written about the property law implications of ocean fish ranching. Viewing ocean fish ranching through a property lens invites consideration of common law property concepts like the public trust doctrine. The public trust doctrine offers a set of useful principles that could be applied to ocean fish ranching until the government develops a suitable regulatory framework. Because the public trust doctrine traditionally applies only to coastal waters, though, extending it to the EEZ requires a new legal basis. This article proposes two such theoretical bases: one founded on the public domain status of EEZ, the other in the extension of state common law to the EEZ.

Before expanding on the reasons why the public trust doctrine could and should apply to ocean fish ranching, the article provides background information on the status of the world's fisheries, the growth of the fish farming industry and its movement offshore, environmental and economic concerns, and the existing regulatory picture. The second part of the article explains the concept of common pool resources and how open access has contributed to the decline in wild fish stocks and prompted the creation of property-based responses like individual fishing quotas ("IFQs"). The third section describes the public trust doctrine and develops two bases for the doctrine's application to activities occurring within the EEZ: (1) the public domain nature of the EEZ to which federal common law might apply; and (2) the potential extension of state common law beyond state waters. The first basis requires an argument that there is a federal common law public trust doctrine that attaches to public lands, and the second presumes that the federal laws governing the EEZ include a role for state common law's continuing regulatory presence.

Professor William Buzbee's work on the "regulatory commons," described in the fourth part of the article, underscores the need to make these doctrinal leaps. He explains why regulatory commons are counter-productive yet self-perpetuating. In turn, this article shows how ocean fish ranching is an example of such a commons and argues that the cure for it is not privatizing the resource. The article concludes by explaining how the application of the public trust doctrine will end the ocean fish ranching regulatory commons and why applying the doctrine, until effective regulation eliminates the potential adverse environmental and economic effects of these activities, makes good policy sense, and is preferable to market-based solutions.

In this lecture, Professor Babcock argues that the problem confronting us is that we are nearing the end of achieving future gains in pollution abatement from traditional sources and the pollution that remains is largely caused by individual behavior. This she says, is true even though polls show that people consistently rate protecting the environment among their highest priorities, say they are willing to pay more to protect environmental resources, and indeed, faithfully contribute to environmental causes. Most efforts to control individual human sources of pollution have failed or not been tried because of the monumental task and cost of regulating personal behavior, the intrusiveness of doing so, and the inhibiting fear of political backlash should regulation be attempted.

This lecture is the author's first step towards understanding why, given the strength of the abstract environmental protection norm, individuals behave in environmentally destructive ways, and what, if anything can be done to change that behavior. For this talk, however, she focuses on only modifying social and personal norms. She also looks at only one circumstance in which norm change may occur, during an environmental crisis accompanied by heightened public activity, what some scholars, like Dan Farber and Michael Vandenbergh, refer to as a “republican moment.” They believe such a moment occurred in response to the environmental disasters of the late 1960s and early 1970s, which briefly resulted in widespread public support for a variety of legislative and regulatory initiatives and spawned the emergence of what she calls the environmental citizen.

This is also a war unlike any other the United States has experienced. No nation-states are threatening our shores. Therefore, it is unlikely that there will be a clear signal that the war is over as no armistice will be signed. Instead, the country appears to be now perpetually at war with "shadowy groups, often fluid in nature, motivated by a distorted Islamist ideology and only sometimes in association with established governments." The methods and weapons these groups use are "unconventional" and "intended to disrupt civil society rather than conquer it with large-scale military means." In response to the horrors of that day, the country is newly and fervently patriotic, and "the military is popular again."

The events of 9/11 have also brought into sharp focus a conflict that this country has not witnessed since the Cold War: the clash between the safety and continuation of the Republic and other values we hold dear, among them a healthy environment. That conflict is the subject of this article.

Unavoidable conflicts between the requirements of environmental laws and protecting national security exist, although some like Stephen Dycus believe that they are avoidable with proper planning and foresight. No one understands this situation better than the military.

In time of war, the resolution of these conflicts may favor national security over the environment. According to Lawrence Gostin, in a constitutional democracy, however, "[t]he state acts at its lowest level of legitimacy when the risk [of harm] is low and the means are ill-suited to achieve legitimate ends." Even in high-risk situations, if "the means . . . exceed the scope of the threat," Gostin suggests the government's actions will be "unacceptable." The challenge is to find a workable balance in this new, and perhaps unending, era of terror without undercutting the national defense and the government's legitimacy. This article posits that the proper balance has not been found, at least with respect to laws protecting the environment and public health.

The first section of the article describes the ways in which pre-9/11 environmental laws protected the country's national security interests. To provide a broader context for understanding the more narrowly focused changes to environmental laws after 9/11, the article next briefly describes the USA PATRIOT Act and the fundamental changes it has made to basic civil liberties. The third part of the article describes changes made to wildlife laws in the immediate aftermath of 9/11, and pending revisions to pollution control laws, which have not moved as swiftly. This part of the article also contains a discussion of modifications made to public disclosure laws and policies, including those curtailing the release of information to the public about environmental risks. The article concludes by discussing why these initiatives should be of concern and asks whether they are a necessary response to the perceived terrorist threat to the country; a question made all the more urgent by the fact that war now appears to be "continually on the horizon." The article concludes that the military is using the "war on terrorism" as a Trojan horse to get out from under thirty years of constraining environmental laws it has never fully accepted.

This article uses Michael J. Sandel's twin concepts of a civic republican polity and dispersed sovereignty as a starting point for developing a theoretical justification for returning greater political and cultural autonomy to tribes. Republican thinking contains some very useful principles for the cause of enhanced tribal sovereignty. These principles should be persuasive because of the important role they played in the founding of this nation and their continuing relevance to theoreticians struggling to find a harmonic place for difference in our democratic society. However, there is a need to find a way to do this without destabilizing the country's capacity to govern or creating separate racial homelands for tribes. The article suggests that granting tribes a constrained power to nullify laws and policies that diminish their sovereignty may offer a structural solution that assures the continuation not only of Indian tribes as vibrant, unique cultures, but also of the United States as a nation and as a robust, pluralistic, tolerant democratic society. "[T]he moral independence of local nomic communities is not a burden to be tolerated or overcome, but is, instead, an essential part of how we build personal integrity and moral freedom as rooted, situated, and well-constituted selves." In order to reach the article's goal of proposing a new theoretical foundation upon which to build solutions to the problem of tribal sovereignty, much ground must be covered. Part II starts this journey by looking briefly at modern conceptions of sovereignty to see whether granting tribes enhanced sovereignty within the United States would offend archetypical notions of sovereignty. Finding it would not, part II concludes that there is much to be gained by tribes, if they were to succeed in their quest. Part III discusses the basic elements of tribal sovereignty, identifies its principal theoretical sources, and then briefly describes its status at the start of the fifth century of contact with non-Indians. Part III concludes that, despite centuries of ill-conceived federal policies and destructive Supreme Court decisions that have weakened the theoretical sources of tribal sovereignty, Indian tribes have retained sufficient core elements of what it means to be sovereign, as described in part II, to qualify objectively as sovereign entities. Part IV acquaints the reader with classical and contemporary republican principles and discusses three such principles that provide particular support for a more robust tribal sovereignty than exists today, as well as one that might undermine it. Part IV of the article shows that Indian tribes not only deserve and need enhanced self-governing authority to protect what is unique about their communities, it also demonstrates that, despite everything that has happened to them, the tribes have retained sufficient cultural, political, and even territorial separation to qualify as repositories of Sandel's downward dispersed sovereign authority. Part V acknowledges the problems that recognizing difference as a basis for separate sovereignty pose to our national norm of a blended society--as well as to any notion of territorial integrity. However, it argues that modem republican thinking, particularly Sandel's multiply-situated citizen and Frank Michelman's dialogic deliberation, assures the survival of both.

It is not enough to establish a theoretical basis for reinvigorated tribal sovereignty. A practical means for its exercise must be found. Otherwise, the painful history of Indian tribes in this country may still end with their disappearance. Accordingly, part VI examines various practical solutions to the problem of tribal sovereignty and finds each of them wanting in some aspect. The article proposes that tribes be allowed to exercise a constrained power to nullify (or opt out of) laws that diminish their sovereignty. Part VI ends with a brief discussion of how the application of republican principles might make this result palatable to both Congress and the Court.

This trend in the Court's application of the Eleventh Amendment to shield states from injured private citizens has potentially ominous implications for citizens seeking to enforce federal environmental laws against states, as Justice Breyer warned in his dissent in College Savings Bank v. Florida Prepaid Post-secondary Education Expense Board. States are important players in the administration of many environmental laws, as recipients of delegated federal regulatory authority. States also own, operate, and construct potentially polluting facilities, such as hazardous waste landfills, hospitals, prisons, airports, roads, and reservoirs that may violate federal law. Thus, they are often targets of citizen suits.

An examination of the effect of the Court's sovereign immunity jurisprudence on the private enforcement of environmental laws against states, therefore, is no mere academic exercise. In an atmosphere in which states are assuming a more central place in the administration of federal environmental laws and federal oversight of state performance is lessening, any initiative that insulates states from legal challenge takes on grave significance for environmentalists. If environmental plaintiffs cannot enforce federally mandated standards and programmatic requirements against the states that run these programs, history advises that the states may under-perform. Thus, a reinvigorated Eleventh Amendment applied to citizen suits brought to enforce federal environmental laws can as effectively undercut the impact of those laws as if Congress had amended them to achieve the same result.

This paper focuses upon the impact of the Court's Eleventh Amendment jurisprudence on citizen suits authorized under the Clean Water Act (CWA) because that law's cooperative federalism structure is typical of many other environmental laws and because citizens suits have historically played a critical role in its implementation. The Act's citizen suit provision (section 505), which specifically incorporates the Eleventh Amendment, has brought to bear on citizen suits the full force and effect of the Court's current state sovereign immunity jurisprudence. The prevailing wisdom is that that jurisprudence will not bar CWA citizen suits against states. The author shows that she is not persuaded for the reasons set out in this paper.

Today, we face the more difficult question of ascertaining the constitutionality of “affirmative action” or “benign discrimination” programs. The Supreme Court first addressed this issue in 1978 in the landmark case Regents of the University of California v. Bakke. In a confusing set of six opinions, four Justices concluded that the program was constitutional, while four others held that it violated federal law. Justice Powell alone stated that the consideration of race was not necessarily unconstitutional, but that the use of quotas was. As a result, with Justice Powell’s vote controlling, there were five Justices who said race could be considered in school admissions, but also five Justices who struck down the particular program at issue.

In 2003, the Supreme Court had the opportunity to tell us more in the cases challenging the University of Michigan’s affirmative action programs. But before discussing the Michigan cases, the author sets the stage by giving the views of the man who brought us Brown v. Board of Education, Thurgood Marshall.

Justice Marshall started with the premise that the ultimate goal for our country is to be a “colorblind” society in which race is irrelevant. However, Marshall pointed out that this commonly accepted goal has led to two very different conclusions. Some people conclude that, because what is ultimately desired is a colorblind society, race-conscious remedies should not and cannot be used to eliminate the effects of past discrimination. Others, however, believe that the vestiges of racial bias in America are, in Marshall’s words, “so pernicious and difficult to remove that we must take advantage of all the remedial measures at our disposal.” Which of these conclusions one adopts, said Marshall, depends on how close one believes this country is to the desired colorblind society.

Among the most serious of the ills afflicting the Bay's water quality is nutrification. Nutrification, which lowers dissolved oxygen levels in the water, sets off positive feedback loops further eroding the Bay's health. This article brings to the fore a largely overlooked source of the Bay's nutrification problem: the practice of chumming. Chumming involves dumping a slurry of decomposed or decomposing baitfish, usually menhaden, over the side of a boat to attract highly-prized game species like striped bass. The practice is widely used by Maryland's recreational fishing industry, which is an important part of Maryland's economy.

Chum contributes to the Bay's serious nutrient enrichment problem by increasing biological oxygen demand, resulting in lower dissolved oxygen levels in the water. It also increases water turbidity and may be a source of bacterial disease in striped bass. The use of menhaden as baitfish is also contributing to the decline in populations of that critically important food and filter fish. Even though chumming adversely affects the Bay's water quality and threatens its biodiversity, neither the federal government nor Maryland currently regulates the practice. While Bay area regulators may believe that they have made an economically rational decision to attend to larger targets of opportunity such as nutrient discharges from sewage treatment plants and farm fields, the high cost and political flashpoints of addressing those large sources of nutrients have largely paralyzed legislators and regulators for nearly two decades. The result is that the Bay's nutrification problem is getting worse, and the bill for addressing the problem is getting bigger.

The reluctance of regulators to address small sources of environmental problems, or even small environmental problems, is not unusual and is what makes the chumming story relevant to those who live outside the Bay's watershed. The premise of this article is that the failure of regulators to regulate chumming originates through a misapprehension about how complex natural systems like estuaries behave and also in an over-dependence on economic analytical methodologies, like bioeconomics and cost-benefit analysis. Economic approaches measure success based on the amount of pollutants taken out of the waste stream and undervalue broader, more difficult-to-quantify improvements to the receiving environment. Because economic approaches depend on factors remaining stable, they are also singularly ill-suited to constantly changing natural systems. Precautionary principles are better suited to the preservation of biodiversity in these systems, where so much is scientifically uncertain and where the goal is to avoid irreversible and catastrophic consequences regardless of the economic sense in taking the precautionary steps. These same conclusions apply to other complex, evolving natural systems and other types of low volume, but ultimately highly detrimental environmental harms to them.

To assist in the development of this thesis, part I of the article presents background information on the Bay and the serious problem of nutrient enrichment. Part II introduces the reader to the practice of chumming and its contribution to the Bay's over-enrichment problems. Part III explores how the misguided reliance of regulators on choosing an economically rational target, usually the largest sources of environmental problems, misapprehends the capacity of smaller sources in complex natural systems like estuaries to cause potentially irreversible and catastrophic positive feedback loops. This misguided approach, in turn, may lead to loss of biodiversity. Part III also describes the precautionary principle, and how its application would direct regulators to prohibit the practice of chumming in the Bay.

At the Institute for Public Representation (IPR) at the Georgetown University Law Center, the author has learned that many kinds of environments, including the built environment, are worthy of protection because of their importance on a local, if not regional or national, level. She also has repeatedly encountered federal agencies that permit or fund activities that threaten these environments. In some cases, such as national parks or monuments, these agencies actually own or manage the threatened resource. Accordingly, the IPR has used NEPA as one of its basic tools to protect the urban environment.

This is not to say that the fit between NEPA and the urban environment is necessarily perfect. Quite the contrary, an urban environment can both test the effectiveness of NEPA and suggest ways in which the Act might be improved. For example, relevant case law demonstrates that finding a sufficiently large federal handle to warrant the application of NEPA to urban land use decisions can be challenging. Despite this federal-presence challenge and other flaws, NEPA adds unique analytical tools to the web of federal laws protecting the urban landscape. These tools are particularly suited to addressing two problems that are plaguing metropolitan areas today: loss of neighborhood viability leading to urban blight and white flight, and the phenomenon of urban sprawl.

The first tool is NEPA’s mandate that federal agencies consider their proposed actions impact on social and cultural resources. This requirement can be used to help assess the extent to which federal projects may lessen the diversity and sustainability of urban neighborhoods by adversely affecting their “social capital,” that complex web of interlocking and mutually supportive networks of social and economic relationships that binds communities together.

The second tool compels proponents of federally authorized or funded projects to consider their proposed actions’ indirect and cumulative impacts. This requirement offers a mechanism for addressing problems raised by urban sprawl. The effectiveness of both of these tools may be limited when an urban land use change appears too small to trigger NEPA’s applicability or seemingly will have only a minor impact on the physical environment. Overcoming these challenges is the focus of this article.

In responding to these challenges, this article first takes a brief look at cities, their positive and negative features, and the importance of vibrant, healthy neighborhoods to good quality urban life. Part I also discusses the phenomenon of urban sprawl and its environmental impacts. Part II examines how government decisions that negatively affect seemingly isolated, small uses of urban land, such as a corner bodega, can ripple out into the greater metropolitan area and lead to economic blight, white flight, and urban sprawl. In addition, part II introduces the concept of social capital and explains why it is a central component of healthy neighborhoods, especially for those that are less financially secure.

Part III turns to NEPA and looks at the statute’s use in the urban environment. This part identifies particular features of NEPA that give city residents, particularly those who live in less financially stable areas, unique tools to resist non-desirable changes to their neighborhoods. The last part of the article shows how the principles of conservation biology and social capital can be combined to translate principally socio-economic impacts from isolated land use changes into large-scale physical impacts. The final part then demonstrates how these physical consequences can be sufficiently magnified to warrant the preparation of an environmental impact statement (EIS). In case this rationale should fail, the article explores informal means of communicating with agencies during the preparation of an environmental assessment (EA) that offer communities another way of influencing neighborhood land use decisions.

This article's working premise is that unless the current governance structure for the management of public lands changes, the political conflicts over their use and management will continue to blight their future, just as it has marred their past. Further, failing to adapt the management of public lands to our changing perceptions about the nature and needs of the biological and social communities that depend upon them will only engender a new generation of conflicts and further diminish the vitality of those communities. Nowhere are these conflicts more intense and the risks and consequences of failure higher than on the "public domain" lands; those lands managed by the Bureau of Land Management (BLM) under the authority of the Federal Land Policy & Management Act (FLPMA).

The purpose of this article is to determine whether there are alternatives models of federalism, which might improve the management of public domain lands. None of the models discussed here, however, proposes complete rescission of federal authority over public lands; rather they offer an enhanced role for states in the federal decision-making process. A continuing federal presence is assumed to be necessary to prevent inter-state distribution inequities from arising or economic discrimination from occurring. Only the federal government can correct market failures when they occur and uniformly protect national norms, such as our natural heritage. And even if the Western states are becoming more supportive of these norms as some assert, serious questions would remain about the ability of those states to take on sole responsibility for management of these lands without an infusion of new funds.

The article examines three models of governance ("dual regulation," "collaborative management," and "layered federalism") found in other areas of environmental law to determine whether their application to public domain lands might lessen the federalism tensions inherent in the current model and enhance the land manager's ability to make decisions that are both ecologically sound and reflect the new voices populating these lands. Achieving rational ecosystem management and a more democratic mode of decision-making may be of greater importance than attaining non-fractious governance. Intergovernmental friction may be a necessary, unavoidable, even welcome byproduct of our "compound republic" form of government; a transaction costs of a federal structure that relies on overlapping and sometimes conflicting jurisdictions of governance to safeguard those liberties not protected by the explicit constitutional guarantees. No such benefit accrues from the other two problems.

The structure of the article is straightforward. Part II examines the current federalism model on public domain lands and concludes, despite some of its virtues, the model has caused inter-governmental friction and created barriers to rational ecosystem management and community-based participation in the decision-making process. Part III describes and then critiques each of the alternative federalism designs against the same three criteria. The article concludes by suggesting which, if any of the models holds the greatest promise for resolving the problems besetting public lands management. While the author recognizes that these problems may be too complex, diverse and endogenous to the public lands experience or a specific geographic area to enable a "single size fits all solution," she hopes that the analytical exercise of examining these models may enrich the storehouse of ideas we draw from in the search for solutions.

This essay is the author's third attempt at unraveling the problem of irresponsible individual environmental behavior and at suggesting possible ways to reform how people behave toward the environment. The first article proposed expanding the abstract environmental protection norm to include individual environmental responsibility as the approach most likely to overcome barriers to behavioral change. The article recommended enlisting environmental groups as the most effective "norm entrepreneurs" to achieve widespread change in personal environmental conduct. In that piece, she concluded that the best way to change norms and thus change behavior was through education, but additional measures might be necessary.

The second article expanded on the earlier discussion of norms and their influence on behavior, and why changing norms, though difficult, is more effective than other means of inciting behavioral change. However, given the difficulty inherent in creating or changing norms, the second article also identified and evaluated other norm and behavior-changing tactics, such as shaming, public education, and market-based incentives, which might supplement norms as a means of changing behavior. The article concluded that no one approach alone is sufficient to secure both norm and behavior change, but a combination of any or all of them when properly tailored to the source and nature of the harm and when accompanied by public education can lead to both norm and behavioral changes.

Thus, both articles concluded that public education plays a critical role in any effort to alter public behavior through changing norms. This essay examines how republican theory supports that conclusion and provides the theoretical framework within which norm change can occur.

All three pieces start with the premise that the current crisis over global climate change has created the circumstances in which norm change can occur--circumstances that collectively have created what the author calls a second environmental republican moment. This second republican moment, like the first one in the 1970s, might result in widespread public support for a variety of environmentally protective legislative and regulatory initiatives and offers a rare, albeit brief, opportunity in which to educate the public about its contribution to environmental harm. This essay develops the republican aspect of that thought further, demonstrating how the overlapping strands of republican thought and norm development support the creation of a new norm of personal environmental responsibility. The essay also shows how, during republican moments, the public is more amenable to being educated about civic matters, including their responsibilities as environmental citizens. It is particularly during republican moments that people acquire information that may influence their "expressed preferences," lending a sense of urgency to the present moment we find ourselves in.

This essay begins by discussing the concept of an environmental republican moment, and why the public's response to the crisis of global climate change appears to be such a moment. The essay then identifies the key features of republican theory and shows how those features replicate many of the elements necessary for norm and behavioral change. The essay concludes by showing how republicanism--with its emphasis on public education, civic involvement, and achieving the common good through civic virtue--provides a useful construct for thinking about how to make people behave in more environmentally responsible ways.

Professor Huffinan's critical assessment of the alleged mythological history of the public trust doctrine is beside the point. Indeed, as he suggests, he is "tilting at windmills in trying to set the story straight." The story he criticizes has become a "fact" in the minds of judges who use it to justify a particular application of the doctrine. Retelling the story to prevent future applications of the doctrine could destabilize property law, which has embraced the doctrine for centuries. Even if the doctrine is a myth invented by legal scholars and judges, the legal fiction doctrine, which Professor Huffman's argument implicates, justifies it. Indeed, this essay argues that the public trust doctrine is a good legal fiction because it enables new uses of the doctrine to perform a gap-filling function in the absence of positive law and, therefore, that it deserves to continue unchallenged.

Because much has been written on the topic of the public trust doctrine, part II of the essay very briefly describes the doctrine's origins, its major features, and its most common uses. Part III sets out Professor Huffman's critique of the doctrine's origins and poses as a rejoinder the legal fiction doctrine, which justifies the use of fictions in similar situations. Part IV of the essay looks specifically at the Exclusive Economic Zone (EEZ), where numbers of wild fish are in a free fall because there is no coherent, comprehensive program to regulate activities in the area. This part of the essay also discusses the phenomenon of a regulatory commons, which, according to Professor William Buzbee, arises when there is not "a matching political-legal regime," leaving the underlying social ill unattended. The essay suggests that the public trust doctrine can fill the regulatory gap on the EEZ by offering an interim management regime with protective normative standards and other management tools, and thus end the stasis created by the regulatory commons that has left the EEZ's resources unprotected. By highlighting the underlying social ill, application of the doctrine may actually encourage the enactment of positive law that can displace the stop gap common law regime and bring more regulatory certainty and uniformity to the area.

The essay closes by asserting that, for these reasons, the public trust doctrine is a good legal fiction. Not only is the doctrine doing no harm, but its potential expansion could fill gaps in positive law and offer much needed protection for vulnerable resources of communal value. Therefore, Professor Huffman's cavil against further expansion of the doctrine because of its "mythic" origins deserves no more attention than it has been given here.

The second was a complaint filed by a consortium of regional environmental organizations, Chesapeake Bay Foundation, Inc., and individuals against the Environmental Protection Agency (EPA) for failing to achieve the goals of the Chesapeake Bay Agreements. EPA is one of five signatories to the Agreements, which contains a variety of goals, deadlines, and recommended actions, and which has failed miserably to halt the Chesapeake Bay’s decline. This complaint led to a reflection on work done in the clinic several years ago, where bringing a lawsuit on behalf of a commercial fisherman challenging the practice of chumming on the Bay was thought about long and hard. Chumming involves depositing a slurry of decomposed fish parts, usually menhaden, over the side of a fishing boat to attract game fish like striped bass. While chumming contributes to the Bay’s nutrification, by itself it has little discernible impact on the Bay’s overall health given the much larger sources of nutrients like sewage treatment plants, runoff from farm fields, and confined animal feeding operations. Ultimately it was determined, in part on standing grounds, that such a lawsuit could not succeed.

The last event was a recent conversation with a retired Washington attorney about his decision to start a new organization that would supply pro bono assistance to property owners concerned about relatively discrete, highly localized harms to the Bay such as leaking septic systems or permit violations by industrial dischargers. Collectively, these separate events congealed into a somewhat amorphous concern about the extent to which the Supreme Court’s standing jurisprudence and its insistence on a showing of a particularized injury-in-fact are ill-suited to the types of broad-based, generalized harms from which complex, constantly changing ecosystems suffer.

To accomplish this, the article synthesizes the previous articles into an assumption about the critical role of norms in changing personal behavior and tests that assumption by exploring how to make individuals more responsible consumers of electricity and adhere to the concrete norm of energy conservation by swapping out their incandescent light bulbs for compact fluorescent lights (“CFLs”). The agreed upon goal behind energy conservation is to reduce the country’s reliance on fossil fuel-based energy production, thus reducing the emission of harmful airborne pollutants and greenhouse gases as well as the related environmental harms associated with coal production. One way to reduce residential energy consumption is to persuade individuals to switch to CFLs. Up to ninety percent of energy produced by incandescent bulbs is lost as heat; switching to CFLs is one way to prevent this energy loss.

The phenomenon of individuals as irresponsible environmental actors seems counterintuitive when polls show that people consistently rate protecting the environment among their highest priorities, contribute to environmental causes, and are willing to pay more to protect environmental resources.

This article is the author's second effort at understanding why people who consider themselves to be “environmentalists” or support environmental causes behave in environmentally destructive ways, and what, if anything, can be done to change that behavior. The first article endorsed expansion of the abstract environmental protection norm to include individual environmental responsibility and concluded that doing this is the most promising approach to overcoming barriers to behavioral change. That article also identified environmental groups as the most effective “norm entrepreneurs” that can bring about widespread change in personal environmental conduct through carefully tailored information campaigns. This article expands on the earlier article’s discussion of the role norms play in influencing personal behavior and why changing them is a critical part of any campaign to make individuals more environmentally responsible.

The best way to change norms is through education, as the first article acknowledged, but supplemental measures may be necessary. This article identifies what those additional measures might be and assesses their effectiveness. A third article will explore how republican theory supports the critical role that education performs in altering public behavior through changing norms. All three articles rest on the premise that the global climate change crisis has created circumstances in which norm change can take place, namely the occurrence of a second environmental republican moment, in which people are open to being educated about their civic responsibilities, including those pertaining to the environment.

To develop these ideas, section II provides background information about individual contributions to environmental problems. Section III discusses various barriers to changing personal environmental behavior, such as the role federal laws play in perpetuating the myth that only industry is responsible for environmental harm. That section also explores certain cognitive heuristics that influence how people process information and personal barriers to changing behavior such as habits, inconvenience, cost, unavailability of alternatives, and self-interest. The role of norms in influencing behavior and how norms are formed and changed are examined in section IV. Next, section V investigates how a new norm of environmental responsibility might arise and displace competing norms. However, that section recognizes that the development of a new norm may not be an easy task because of some of the same barriers identified in section III. In section VI, acknowledging that neither norms nor the happenstance of an environmental republican moment will inexorably lead to changes in personal behavior, various norm and behavior-changing tools, such as public education, shaming and other sanctions, and market-based incentives are identified. Section VI examines the inherent strengths and weaknesses of these tools, as well as particular problems with their application to individual behavior. Section VII concludes that no single approach will work, but a combination of any or all of the above, depending on the source and nature of the problem, is called for. However, any combination of tools must include public education if a permanent new environmental norm is to emerge and change individual behavior in the long term.

In support of that thesis, this article briefly discusses the origin of the modern concept of diminished tribal sovereignty in Marshall’s Indian Law Trilogy. This discussion points out the dissonance between the fictions Marshall propounded in support of that concept and the actual record he should have considered in reaching his decisions. The article then turns to the legal fiction doctrine and briefly identifies the traditional functions it performs as well as the doctrine’s hidden dangers. This part of the article shows how Marshall used legal fictions in his Trilogy and speculates about why he used them. The third part of the article describes the harm that Marshall’s use of the legal fiction doctrine has done to the cause of tribal sovereignty and Indians in general. Based on their pernicious effect, the article concludes that Marshall’s fictions are “bad” legal fictions that should, and can, be expunged from federal Indian jurisprudence; their momentary usefulness, long outlived.

This article seeks to answer those questions, and concludes that clinics, like environmental organizations, function in an environment that is exceptionally hostile to the types of clients they represent and the cases they bring. This means that the claims environmental clinics file, like those filed by the national groups, will be met with a barrage of opposing filings based on a number of jurisdictional and other challenges enabled by the U.S. Supreme Court’s anti-public interest jurisprudence. Unlike the well-funded, publicly visible, and widely supported national organizations, environmental clinics are more vulnerable to less conspicuous attacks brought directly by the economic interests they challenge and their political supporters. Perhaps clinics unwittingly invite these attacks that in turn weaken their ability to function in this already hostile environment. The combination of the two can create a perfect storm for environmental clinics.

Even more curious is the role that lawyers play in attacks on clinics and the bullying techniques they use to discourage clinic-initiated litigation. There is something about students that brings the bully out in those who face them across the table that goes beyond the usual reasons given for these attacks—namely, that environmental clinics empower people who are otherwise without power to confront those who disregard their interest, that they are successful, and that they have enormous staying power and endless student enthusiasm. This behavior, although part of the general incivility problem afflicting the legal profession, is something more, and has to do with the nature of today’s lawyers and the context in which they learned how to be lawyers and practice law. Although many articles have been written about attacks on environmental clinics, none has identified this second reason—the milieu in which lawyers are educated and trained—and placed it in the broader context of judicial hostility toward environmental claims brought against established economic interests.

This article lays the groundwork for these conclusions by first briefly discussing the origins of clinics and clinical pedagogy in general. Then it describes the various attacks on the clinics, some consequences of those attacks, and how certain responses to those attacks run afoul of basic ethical precepts as well as notions of academic freedom. The third part of the article, after briefly listing some of the conventional reasons for these attacks, focuses on a less conventional one—namely, that they are fueled by the asocial behavior of lawyers who are in the vanguard of many of these attacks. It shows how such behavior is akin to that of a schoolyard bully who, in sensing a weaker opponent, acts out in ways that have been fodder for psychological literature. This part of the article also describes the various barriers the Court has erected that make it difficult for public interest litigants, particularly poorly funded and understaffed environmental clinics, to prosecute legal claims representing individuals who threaten the economic and political status quo. The article concludes that the more conventional explanation for the attacks against clinics are incomplete because they neither explain the persistence of the attacks nor show how the combination of intimidation and hostile judicial doctrine make it extremely difficult for environmental clinics to do their job.

To develop this idea, the first part of the article very briefly discusses the regulatory problems, including the ineffectiveness of federal enforcement, that have, to some extent, spurred a turn towards corporate self-regulation and the emergence of the concept of CSR. The second part of the article looks more closely at corporate culture and asks what about it makes businesses seemingly indifferent to being seen as "good environmental citizens." One thing that emerges from this discussion is that shame and compliance sanctions levied against the corporations are imperfect motivators when it comes to overcoming the institutional pressure on firms to make a profit for their shareholders.

The third part of the article discusses the CSR movement more broadly, its origins and the likelihood that it is not disappearing any time soon; while the fourth part discusses some of the potential benefits of CSR programs to corporations and society as a whole, including their latent capacity to change corporate attitudes towards the environment. The fifth part of the article turns to three examples of voluntary CSR programs: information disclosure programs; voluntary performance standards; and environmental management systems (EMSs). Studies show that these programs have been largely ineffective, creating the perception that firms undertake them principally for public relations purposes and not to achieve any real change in corporate behavior let alone social benefit. This part examines three principle problems with these programs; specifically, the absence of any internal or external monitoring of their effectiveness, their lack of public transparency, and the absence of sanctions or other consequences for businesses or their employees who promise to undertake a CSR initiative and then fail to do so or only support the initiative in a half-hearted way. However, given the problems with regulatory programs set out in part I, properly designed and enforceable CSR programs that function as supplements to existing regulatory programs may be the best way to change corporate culture because they work within, not outside, the corporation.

The sixth part of the article reviews possible design changes that might be made in these initiatives to overcome the flaws identified in part V; however, as this part shows, it is unlikely that businesses, without being ordered, will change their CSR programs because of the attendant costs. Accordingly, the final part of the article discusses the importance of litigation as a means to improve the design of CSR programs and compel their implementation. Two types of lawsuits are discussed: one, the typical citizen enforcement suit, which presumes the inclusion of the company's CSR initiative into its regulatory permit when undertaken to gain the benefits of some Environmental Protection Agency (EPA) CSR program; the other, a suit brought in state court employing contract principles. Neither approach is without problems. Yet, both offer the opportunity for real reform. Indeed the mere threat of such lawsuits can induce companies to change their behavior to avoid the costs of defending against them and the unwanted publicity; once filed, there is a possibility of settlement, where structural changes can be made to the business' operation to include a more robust CSR program.