University of Louisville Law Faculty Blog

Clean, Wet, and Smart, Part III

author

 

Land use affects water quality, water use, and the integrity and health of watersheds.  The last few years have seen a growing level of attention to how aquatically responsible land use and development might be defined and actually achieved.  This blog posting is the third in a series of posts highlighting articles that address the legal and policy intersections of land and water.  In this posting, I provide a link and the abstract to an article that addresses an often-overlooked topic: the importance of land trusts and government agencies acquiring water rights to accompany the conservation easements or conservation lands that they acquire. 

 

The article is: Mary Ann King and Sally K. Fairfax, "Beyond Bucks and Acres: Land Acquisition and Water," 83 Texas Law Review 1941 (June 2005).  Available at SSRN: http://ssrn.com/abstract=874789 

 

Abstract:       

 

This Article will use historical experience and current practice to do three things. First, we chronicle early acquisitions' tendency to overlook water. Second, we will offer a precise account of the confusion that can arise from combining conservation easements and water as property, most particularly in the western United States. Finally, we look at some tools that might minimize the confusion.

 

In Part II we first use a brief history of land acquisitions - from Niagara Falls in the 1880s to the Land and Water Conservation Fund Act of 1965 - to establish the context in which land-acquiring conservationists have long overlooked water. Perhaps the fact that land acquisition as a conservation tool, both full-fee and conservation-easement-based, first took hold in the eastern United States, where riparian doctrine prevails, explains the rather off-hand approach to water in these early acquisitions, what we call the riparian mindset. We also note some basic constraints on just buying it associated with these historic acquisitions of land-in-fee.

 

We briefly put water aside in Part III to introduce land trusts and conservation easements. First, we discuss state statutes that adjusted the common law of servitudes to accommodate conservation easements. Then we point to issues that would arise in any modern conservation easement, issues that intensify the concerns we raise regarding acquisition of land-in-fee.

 

In Part IV, the heart of our discussion, we ask what happens if conservation easements are used when water is a primary or necessary element of the conservation benefit. We begin by examining the easiest case: municipal and land trust programs that use conservation easements to protect water quality. In these programs, the basic features of the conservation easement are relatively unaltered by its connection to water, and problems seem no more onerous than with most other conservation easements. We address the harder issue of water quantity by examining experiences using less-than-fee interests to restrict water rights. Depression era flowage and post-World War II wetland easements acquired by the Bureau of Biological Survey (BBS) and the United States Fish and Wildlife Service (FWS) are instructive. The contemporary use of conservation easements that address water quality by restricting water rights is more problematic, particularly when the federal government's enormous advantages in litigation are taken into account.

 

Part V offers some starting points for future discussion. We look at water trusts' experience trying to integrate instream values and water rights into transactions. We then briefly discuss a recent Colorado statute aimed at strengthening conservation easements as a tool for protecting water on eased lands. We conclude that conservation easements that protect water quality by controlling land use are not obviously more vexed than the familiar conservation easement protecting open space, habitat, or historic sites. In fact, all of these goals frequently overlap handily. Trying to use conservation easements to address issues involving water rights - water as property - is more complicated. When easements attempt to tie water to land, particularly in ways that are not fully supported by state water, property, and easement law, the results can be disappointing. If the energetic - and still rapidly growing - land trust community is to play a positive role in water-related or water-dependent resource protection, practitioners must overcome the riparian mindset and directly address the interplay between land and water law.

 

We conclude that addressing water quantity goals with conservation easements is both complex and risky. But conservation easements are the current tool of choice for good reason, and not using them at this point in history may leave even worse problems. The task remains to choose tools that effectively integrate land and water conservation.

Does America need an official language?

author

For several years now there has been a push by some to make English the official language of the United States.  As in the previous two sessions, Congress has a bill before it to make English the national language and to make it the common unifying language of the country.  Although public polls show support for this movement, others strongly criticize this effort.  As a multilingual and multiracial nation, they would prefer the United States either not adopt a national language or adopt several languages to reflect the diverse makeup of our country.

 

Visiting South Africa has provided me with a new lens to view this debate.  The South African Constitution recognizes eleven languages as official languages.  In addition, the government is required to “take practical and positive measures to elevate the status and advance the use of these languages.”  The Constitution imposes this duty in recognition of the “historically and diminished use and status of the indigenous languages” of their people.  Language plays a pivotal role in forming a person’s personal and cultural identity.  Forcing a person to use a non-native language arguably takes away from who they are as a person.

 

Yet the goal of multilingualism, even if laudatory, has profound practical challenges.  In his excellent article (Vol 124 Part 1 The South African Law Journal page 84) )discussing the impact this language policy has on the court system, Dean Michael Cowling of the University of Natal at Pietermaritzburg addresses many of the competing policies at play.  United States’ policymakers would be well served to read his article and thoughtfully analyze these issues and concerns before making any decision on whether to adopt one or more national languages.

 

Some of the issues that need answers include: 

  • Would the courts translate the opinions in all official languages?
  •  How much would that cost?
  •  If a trial was conducted in one language, would the court record also be in that language? 
  • What happens if legal terms are not translatable in another language (many of the African indigenous languages are not as fully developed yet with respect to legal terms so there are no direct equivalents)? 
  • What about the problem of mistakes made in translations- which version of a law would a court use if there are differences between them?
  •  Should we have a bilingual language policy or a multilingual policy? 
  • Some black judges in South Africa argue court proceedings conducted in multiple languages would be “divisive, illusory, expensive, cumbersome and impractical” – would it be less in the United States if we had less than 11 official languages?
  • Can you really have freedom of expression and protect your individual liberty if you cannot speak in the language of your choice?
  • How do you practically promote multiple languages?
  • Should there be parity of all languages in legislation? Regulations? Printed material? Education? Road signs?
  • Should we alternate which language is used when reporting decisions or publishing laws as South African has done in the past with English and Afrikaans?
  • Fundamentally, is adopting English as a national language discriminatory or racist?
  • In the United States would English be the language of the oppressor as some see English and Afrikaans or is it different for us?
  • What reasons exist for giving enhanced status to English?
  • Who would regulate and monitor the official language?
  • Would multiple lawsuits result if we select one or more national languages?
  • Is it fair to have a civil law proceeding in a language that is not the mother tongue of either of the parties?
  • Will judges, practitioners (and thus law professors) need to be proficient in multiple languages?
  • What effective will decisions have on the world’s jurisprudence if they are not translated into English (would an opinion written only in isiZulu have any impact? Spanish?)
  • Whose mother tongue should be used? The judge’s? The litigants’? the attorney’s?
  • Even if multiple languages exist for other purposes is there any justification to only having one language for legal proceedings?
 

These are just some issues that need further analysis before deciding whether to have an official language(s).

  

Justice Sherman Minton: A Bridge Between Eras

author

In recent posts I discussed John McKinley, the only other U.S. Supreme Court justice besides Louis D. Brandeis to be buried in Louisville, grouping the two disparate men under the random accident of the geographic proximity of their last resting places.  If state lines are ignored, a third justice is also buried nearby, the gregarious New Albanian Sherman Minton, whose grave at Holy Trinity Catholic Cemetery lies just across the the Ohio River bridge that bears his name. (Credit to Jim Chen, who pointed out the Oyez created Google Maps page of SCOTUS death-places).  Minton is a balancing addition to the Kentuckiana trilogy, a solid hardworking and sensible jurist whose career avoided the dizzying heights of Brandeisian greatness and the spectacular lows of McKinleyesque inconsequentiality, landing squarely in the middle of most rankings.

Minton, a senatorial pal of Harry S. Truman who appointed him to the court in 1949, was the last member of the U.S. Congress to sit on the court. This is no obscure fact; since he left in 1956, only Sandra Day O’Connor, an Arizona state legislator, joined the Court with any experience in drafting laws, counting votes and trading favors to pass a law.  The woeful lack of practical experience has led many of the current court to expect laws to be drafted without error or ambiguity, and, when they don’t find this perfection, they are content to ignore obvious legislative intent.  Minton, a man with a high regard for the product of the popular branches, sought to find and vindicate the purpose of the legislature embodied in its laws.

Sherman Minton was the last of another breed of justice, at least according to a new paper on SSRN by Justin Crowe and Christopher Karpowitz, “Where Have You Gone, Sherman Minton? The Decline of the Short-Term Supreme Court Justice” (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=948813).  Crowe and Karpowitz discuss the historical role of “short-term” justices, men who served productively on the court but did not stay for decades.  They show that this was a common phenomenon in the 19th and early 20th centuries, but has been rare in the last half-century. 

When Sherm Minton left the court in 1956, he likely had little idea that an era was ending.  The age of poker-playing lawyer-legislators was over; the court would increasing become the province of law professors, Justice Department staff attorneys and corporate lawyers; all typically rotated through a federal lower court position before being seated on the high court.  Where they would sit … and sit … and sit …

UPDATE:

Federal judge and former congressman Abner J. Mikva was decrying this tendency in the lower federal bench back in the early 1980s: "Judicial Selection: Casting a Wider Net,"  62 Annals Am. Acad. Pol. & Soc. Sci. 125 (1982). 

Mitch McConnell, Second Senate Leader from Kentucky: A Dissent

author

Senator McConnell’s recent campaign ad has once again got me hot under the collar.  No, it is not any particular claim he makes (that would be a different blog), but instead something that he has repeated in every commercial since he began ad buys at the beginning of 2008: that he is “only the second Senate leader from Kentucky” (the other being Alben W. Barkley). 

Admittedly, this claim is backed up by the Senate Historical Office which dates the history of this title (arbitrarily, I believe) back until 1920 when they declare that the title “leader” was formally applied to the chairmen of the Democratic and Republican caucuses.  This clearly neglects the increasing importance of this party office in Senate politics starting at the end of the 19th century and at the same removes three additional Kentuckians from the roll of leaders: John W. Stevenson (1873-77), James B. Beck (1885-90) and Joseph C. S. Blackburn (1906-07).  Moreover, this determination ignores what some of these men were actually called by the press: leader.

The reason that Senate historians have fixed on the 1920 date is that it is admittedly hard to determine when the caucus chair went from being a mere presiding officer to the chief organizer of the party’s legislative activity.  It is fairly clear that former Kentucky governor Stevenson’s role when he held the Democratic Senate caucus chair in the 1870s was to gavel the infrequent meetings to order.  However, when Jo Blackburn let loose the leadership reins in 1907, his fellow Democrats prepared to jockey for a position of real power.  

Reading through contemporary accounts of the caucus chairmanships of Senators Beck and Blackburn in the free New York Times archive (1851-1923), it is clear to me that McConnell is the fourth, not second Kentucky Senate leader, and that if re-elected he needs to give his other predecessors their due. 

Leader Blackburn (with senatorial 'stache):

South Africa, Louisville and Power Outages

author

I read with interest the recent power outage at University of Louisville.  Currently I am on exchange at the University of Natal in Pietermaritzburg.  I must draft this entry quickly because a scheduled power outage will shut down all electricity at the university for the entire afternoon.  Last night the power was out at my residence from 7:30 p.m.-9 p.m.  As the University of Louisville struggles during these difficult budget times, I wondered what we would do if our power went out every other day.  Some schools in South Africa are actually using coal miner hats with lights to teach the classes!  The best estimate is this will continue until 2012.

 But power shortages are not the only issue that challenges this nation.  Just a month ago students staged protests because the university did not have adequate housing forcing students to share single beds.  Even more alarming, the student newspaper reports 800 people die of HIV/Aids related illnesses every day and that by the time one was done reading the short article four women will have been raped.  They continue to struggle with race relations and how to co-exist.  A recent video of university students (not from Pietermaritzburg) showing students forcing university domestic workers to drink warmed dog food containing urine shows they have a long way to go.

Yet I have found the South Africans very resilient and still full of hope.  Their spirit and desire to attain a better tomorrow gives them strength and is inspiring.  The professors here are making the best of the situation and are still trying to educate their students even though they now need to be even more creative in delivering lectures.  They remain positive even during these challenges.  As I get ready to go into darkness again, it puts some of our problems in perspective. 

 

Supreme Court Justices Ranked: The Best, the Worst, the Most Geographically Proximate and the Dead

author

One characteristic of blogs that I have not figured out how to get around is that the medium disfavors citation to print-only sources. Bloggers are eager to link to support for their propositions from online references but they (and I count myself in this) are loathe to pull out the Harvard citator or Chicago Manual and drop a hoary old bibliographic citation on their readers. In a recent post, “John McKinley: Louisville's Lost Supreme Court Justice," I made several assertions that seemed to cry out for a footnote but I could not figure out how to insert such references without messing up the flow and (more importantly) detracting from my cool graphic layout. First, I numbered Louis D. Brandeis among the greatest justices to have sat on the court, a very defensible position, but a source or two might be nice. Second, I suggested that Justice John McKinley was perhaps not as well-respected. This might not strike readers who have not heard of him (a sizeable subset of humanity) as needing a citation, but there is actually excellent authority for the statement (from the University of Chicago Law Review, no less). Finally, I argued that McKinley is not usually counted among the list of Kentucky Supreme Court justices. Some might say: There’s a list?! Oh yes, my dear, there is a list. In fact, a little bibliography answering all these questions might be in order…


Top Supreme Court Justices:
Ranking judges is perhaps the most entertaining useless exercise in the legal world (Doris Kearns Goodwin and Michael Beschloss can keep the president-ranking game). In 1992, University of Texas Law Librarian Roy Mersky and a UT colleague bibliographically surveyed all of the judge-ranking efforts up to that date. Roy M. Mersky and Gary R. Hartman, Rating the Justices, 84 Law Libr. J. 113 (1992). Among the best known efforts are George R. Currie, A Judicial All-Star Nine, 1964 Wis. L. Rev. 3, Bernard Schwartz, The Judicial Ten: America's Greatest Judges, 1979 So. Ill. U. Law J. 405. and James E. Hambleton’s meta-analysis, The All-Time, All-Star, All-Era Supreme Court, A.B.A. J. Apr. 1983, at 462. Almost the studies put Brandeis in the top nine (in center-field, if I read the ABA Journal illustration right). Brandeis missed Roscoe Pound’s 1938 list of all-time judges of U.S. history (The Formative Era of American Law 4, 30 n.2), hobbled by the evident fact that he failed meet an implied condition of the ranking: he was still alive.


Most Insignificant Justices
The two seminal works on this topic (see fn 1 of Easterbook, infra) are David Currie, The Most Insignificant Justice: A Preliminary Inquiry, 50 U. Chi. L. Rev. 466 (1983) and Frank H. Easterbrook, The Most Insignificant Justice Further Evidence, 50 U. Chi. L. Rev. 481 (1983). Students of judicial irrelevance may be interested in Professor Currie’s Objective Indicator of Insignificance (OII) factors that led him to fix the MIJ tag on Virginian Gabriel Duvall and Kentuckians may be distressed that Judge Easterbrook pointed the finger at homeboy Thomas Todd, but the fact is that both seriously considered John McKinley for the esteemed title of Sultan of Sloth.

***

Kentucky’s Justices:
In his article Kentucky Justices on the U.S. Supreme Court (70 Register Ky. Hist. Soc. 121), Woodford L. Gardner, Jr., confined his list of “Kentucky Justices” to the eight men who were born in the state and the two men appointed to the court while residing in the state. In order of appointment they are:

Thomas Todd (no snickering), born in Virginia, appointed from Kentucky, 1807.
Robert Trimble, born in Virginia, appointed from Kentucky, 1826.
Samuel Freeman Miller, born in Richmond, Ky., appointed from Iowa, 1862.
John Marshall Harlan, born in Boyle Co., Ky., appointed from Kentucky, 1877.
Horace H. Lurton, born in Newport, Ky., appointed from Tennessee, 1910.
James C. McReynolds, born in Elkton, Ky., appointed from Tennessee, 1914.
Louis D. Brandeis, born in Louisville, Ky., appointed from Massachusetts, 1916.
Stanley F. Reed, born in Boyle Co., Ky., appointed from Kentucky, 1938.
Wiley B. Rutledge, born in Cloverport, Ky., appointed from Iowa, 1943.
Fred M. Vinson, born in Louisa, Ky., appointed from Kentucky, 1946.

In fairness to Gardner, he was not unaware of McKinley’s Kentucky ties, grouping him with John McLean, Philip Pendleton Barbour and John Catron as justices “closely associated with Kentucky.” McLean lived in the state a few years as a child and the Virginian Barbour practiced in Kentucky for a couple years before returning home. Catron had greater ties to the state, having read law, practiced and held office in Kentucky before migrating to Tennessee. None but McKinley is buried here, however, and he now can claim 166 years of residence.

Justice in Repose:
Finally, this whole exercise occurred when I noticed that nearby Cave Hill Cemetery had a justice planted among the oaks and roses, in George A. Christensen, Here Lies the Supreme Court: Revisited, 33 J. Sup. Ct. Hist. 17 (2008), an updated survey of the final resting places of Supreme Court justices. Plan your vacation accordingly!

Contracting for Judicial Review of Arbitration Awards

author

 Last week, without much fanfare, the Supreme Court decided Hall Street Associates, L.L.C. v. Mattel, Inc., U.S..  There has been some discussion of the decision's impact on employment arbitration and potentially on labor arbitration. 

 

I confess to being "on the fence" about the result, but the opinion does raise some interesting points.

First, practitioners who are drafting arbitration agreements should be aware that they will not be able to rely on the Federal Arbitration Act ("FAA") as a basis for expanding the review of the District Court.  The Court holds that the statutory grounds for "vacatur and modification" are exclusive and may not be "supplemented by contract."  (The Court notes, however, that there may be other means of enforcing a contracted for standard of review.)

Second, Justice Souter, writing for the majority, makes several statements that raise interesting questions about why parties choose to arbitrate disputes and that implicitly address the ongoing debate about what the goals of the arbitration process are. 

He notes that "any other reading [of the FAA] opens the door to the full-bore legal and evidentiary appeals that can ‘rende[r] informal arbitration merely a prelude to a more cumbersome and time-consuming judicial review process . . .'"  His understanding is  that arbitration should be an expedited alternative dispute resolution process.

Relatedly, Justice Souter points out that there is a dispute as to whether limited review will encourage parties to abandon arbitration for the courts or whether the ability to expand review will encourage parties to abandon the courts for arbitration.  Either way, the premise is that expanded review encourages arbitration. 

I believe that for some parties limited review encourages arbitration precisely because it does guarantee an expedited, less-time-consuming, less expensive procedure.  These parties want assurances that they will not unwittingly contract into a situation where arbitration is the first step in a long drawn out litigation process. 

For other parties, the ability to expand review may increase the likelihood that they will arbitrate because they are more interested in confidentiality and the ability to select the  decision-maker. 

This raises interesting questions about the goals of arbitration.  Should the ultimate goal in every arbitration be an expedited procedure or should other goals such as confidentiality and selection of the decision-maker matter equally?  Should parties be able to simply privatize the trial court procedure?  If de novo review is available, arbitration looks, in some aspects, less like an alternative dispute resolution procedure and more like a substitute trial court.  On the other hand, without procedural safe-guards, the dispute resolution mechanism may not ultimately serve as a satisfactory means of solving the parties' dispute.

Moreover, there are a host of other reasons that parties select arbitration beyond the level of review, its expeditious nature, confidentiality, or the ability to choose a decision-maker.  These include the ability to tailor rules and procedures to the parties' needs, the equitable nature of the process, the ongoing relationship of the parties, admissibility of evidence not typically admitted at court, and potentially creative remedies.  Of course, only empirical research could ascertain what impact, if any, the ability to contract for an expanded standard of review would have on the level of use of arbitration.

359 Pages of Ugly: Finding the 2008-10 Kentucky Budget

author

In olden times, a child tragically affected with a disfiguring condition would be hidden from public view, out of shame, and from a desire to shield society from a horror they were ill-equipped to handle.  In our more enlightened era, compassion and openness has largely swept away such attitudes.  Some offspring, however, are still considered so hideous that the public must be protected from unwitteningly stumbling upon them.  It is out of such caution that the Kentucky legislature has secreted away its ill-conceived prodigy, the 2008-2010 Kentucky state budget document.

However, as a librarian and a lawyer, I am a heir to two traditions of unflinching rationalism, and am bound to to throw off the cloak of superstition and point the brave to go to http://www.lrc.ky.gov/record/08RS/HB406.htm and to click directly on the first link "HR406."  Read with caution; a stiff drink might be advised.

Governance & Forest Conservation


In light of the potential for REDD (reducing emissions from deforestation and degradation) credits to enter the post-2012 climate regime, it is important to remember that officially-sanctioned forest activities are only a portion of the problem. Governmental and nongovernmental assessments estimate that illegal logging accounts for over half of timber extracted from the tropical forests of some major timber-producing nations.

Perhaps suprisingly, the question of forest (and other resource) governance recently received popular attention, thanks to reporter Andrew C. Revkin’s New York Times blog, Dot Earth. The post focused on a recent murder in Peru, retribution for reporting illegal timber activities. The story behind the post received attention in the U.S. weeks after the killing, thanks to mongabay.com.

This attention is critical. The potential carbon, biodiversity and human health benefits of REDD credits (and the likelihood of their creation) will be seriously undermined by poor forest governance. Liberia and the Democratic Republic of Congo are prime examples of countries that could reap significant human health and biodiversity benefits from REDD, but face extreme governance problems very likely to undermine efforts to secure them. Countries with somewhat better governance frameworks, therefore, will be in better positions to benefit from REDD.

Governance problems have repeatedly plagued efforts toward sustainable forestry, yet international attention to the issue in specific contexts can affect the resources devoted by national authorities to improving governance and the extent of international support for such efforts.
cross-posted at:  Biolaw

John McKinley: Louisville's Lost Supreme Court Justice

author

Two associate justices of the U.S. Supreme Court are buried in the city of Louisville. One, Louis D. Brandeis, is considered to be one of the finest jurists to ever serve on the Court, writing opinions that are widely considered landmarks in the development of the right to privacy and the freedom of speech. He is the namesake of both Brandeis University and, more importantly, the Brandeis School of Law at the University of Louisville, where he is buried in the school's portico.

And then there is John McKinley. In fifteen years on the Court, he wrote 21 opinions. True, he was assigned to ride the Southern Circuit, a brutal task in the years from 1837 to his death in 1852, but in his later years he neglected this task, avoiding his responsibility to visit Arkansas his whole time on the court. (Some might argue that this was an understandable omission). He was so obscure that when he died in Louisville on July 19, 1852, the New York Times gave him a one-line obituary. He may have been the victim of unfortunate timing; another man with Kentucky connections died that day, Henry Clay. McKinley’s obscurity has only grown; many biographies have his death place listed wrongly as Lexington.

McKinley is not usually counted among Kentucky’s Supreme Court justices, but the state has a rather strong claim to him (assuming it wished to claim him). He was born (like Clay) in Virginia, but was brought to Lexington, Kentucky, in his youth. He was called to the bar in Frankfort and practiced there and in Louisville, before trying his fortunes in Alabama in 1821. He served that state in Congress and was considered an Alabaman when President Martin Van Buren appointed him to the Supreme Court. However, he soon decided that Louisville was an excellent home base for his circuit court duties, and relocated here in 1842. The 1850 census lists him and his family well ensconced in the city.

Related by birth to one leading Kentucky family, the Logans, he became connected to others by the marriage of his daughters. (One set of in-laws, the Churchills, dabbled in horse racing and built a race track of moderate fame).

He was buried in a prominent place in Cave Hill Cemetery, Louisville’s oldest and most beautiful burial place; his memorial is dignified but relatively modest. The cemetery does not mention McKinley among its list of famous residents, which includes John Keats’ brother George and Col. Harlan Sanders.