Addressing transnational pollution requires both international and domestic law. Transnational pollution is an international problem that demands and deserves the attention of international legal mechanisms such as treaties, agreements, arbitration, and international management and governance. At the same time, transnational pollution problems can often be addressed more effectively and efficiently through the domestic legal system. An ideal approach is to harmonize transnational pollution management and dispute resolution under international and domestic law. This Article seeks to provide pragmatic, feasible, and politically realistic solutions to transnational pollution by harmonizing international and domestic law. However, given the diversity in geography, domestic legal systems, and political realities that frame transnational pollution problems around the world, a specific pragmatic solution in one region may be useless or impossible in another region. Thus, this Article focuses on transnational pollution problems and harmonizing the relevant international and domestic laws of one transnational region, the United States-Canada border, with the hope that it may provide lessons and potential models that will be valuable to policy makers and scholars elsewhere.

The eight Governors of the Great Lakes States signed a proposed new compact for the Great Lakes and St. Lawrence basin on December 13, 2005, and they joined with the Premiers of Ontario and Quebec in a parallel agreement on the same topic on the same day. Neither document is legally binding-the proposed new compact because it has not yet been ratified by any State nor consented to by Congress; the parallel agreement because it is not intended to be legally binding. Both documents are designed to preclude the export of water from the Great Lakes-St. Lawrence basin apart from certain limited exceptions. The documents do little to promote rational resource management apart from limiting exports. There is debate over whether the two documents are adequate to achieve their announced goals and over whether the goals are the right ones. The lessons found in the well developed body of customary international law applicable to water resources, most recently summarized in the Berlin Rules on Water Resources, have largely been ignored. Comparison of the two documents with the Berlin Rules suggests that the documents will not provide satisfactory solutions to the challenges of managing the Great Lakes, even in the near future, given the broad ecological concerns that are not addressed in the two documents.

Wetlands regulation in the United States has a tumultuous history. The early European settlers viewed wetlands as obstacles to development, and they drained and filled wetlands and swamps at an astounding rate, often with government support, straight through the middle of the twentieth century. As evidence of the ecological significance of wetlands emerged over the last several decades, programs to protect and restore wetlands became prominent. Most notable among these is the permitting program under section 404 of the Clean Water Act. That provision prohibits dredging or filling of "navigable waters," defined by law to mean "waters of the United States." Since 1975, the United States Army Corps of Engineers (the Corps), which is primarily responsible for the section 404 permitting program, has construed "navigable waters" expansively to encompass most wetlands that could affect interstate commerce. In three decisions over the course of twenty years, the Supreme Court has expressed increasing skepticism that the phrase "navigable waters" supports the Corps' broad claim of regulatory authority. In its most recent decision, United States v. Rapanos, 126 S.Ct. 2208 (2006), a majority of the Court found that the phrase "navigable waters" encompassed only those waters that met the traditional test for navigability.

This Article considers the state of federal wetlands regulation after Rapanos. It begins by describing the significant role that wetlands play in the ecological health of the planet, and the impracticality of setting standards to protect those wetlands at the state or local level. It then examines the history of wetlands regulation, focusing in particular on the Clean Water Act, and the problems encountered with regulating wetlands by federal agencies and in the courts. The Article concludes with recommendations for improving the section 404 program. While the Corps can and perhaps should adopt rules to clarify the law, the time is long overdue for Congress to amend the Clean Water Act to clarify the scope of federal authority over wetlands. In doing so, Congress should affirm its original intent to establish a comprehensive federal program for wetlands regulation under the Clean Water Act. This can best be accomplished by abandoning the ill-fated use of the phrase "navigable waters" and substituting a new phrase such as "constitutional waters," which will clearly convey Congress's intent to encompass all waters that are subject to federal jurisdiction under the constitution.

In 2004, a split panel of the Michigan Court of Appeals announced its conclusion that Michigan littoral owners of property owned to the water's very edge and could exclude members of the public from walking on the beach. In that instant almost 3300 miles of the Great Lakes foreshore became, in theory and in law, closed to public use. The case became the leading flash point of controversy between the vast public and ardent private property rights groups. A little more than one year later, the Michigan Supreme Court reversed that ruling as errant on public trust grounds and returned the legal rule to what had been the long accustomed practice-that the public enjoyed rights to traverse the Great Lakes coast of Michigan below the ordinary high-water mark. This Article offers extensive historical support for the public trust positions taken by the Michigan Supreme Court drawn from the Romans, the Medieval period in which modern concepts of sovereignty derived, and the English and American uses of the doctrine up through the end of the nineteenth century. These sources demonstrate that the public rights of use of the foreshore of this nation's great waters, including the Great Lakes, derive from the very essence of sovereignty as it is embedded in the American system of government. Accordingly, the public trust doctrine as received and expounded in this country is properly conceived of as an inherent limitation on the sovereign that no branch of government at either the state or federal level is free to ignore.

The modern public trust doctrine compels each Great Lakes state to protect the sustainable future of the Lakes and to preserve traditional public uses. At the same time, the doctrine constrains the states' powers to allow exploitation of trust resources. This Article provides a brief historical overview of the public trust doctrine in waterways and their submerged lands. It next explores how the eight Great Lakes states have applied the doctrine, discusses the surprising number of differences in the doctrine's development from state to state, and provides comparison charts. After analyzing the variety of approaches used by the eight states to implement the doctrine, the Article builds upon some of those approaches to craft a new model.

The Article proposes three levels of analysis for applying the trust doctrine in the Great Lakes states. The first level addresses the geographic scope of the doctrine in waterways. The second level analyzes public rights of access to waterways. The third level examines which uses of the waterways should be protected and how impairments of those uses should be remedied. The Article offers new tests at each level for implementing the trust.

While the Article argues for an expansive application of the public trust doctrine in the Great Lakes, the Article also reviews a number of arguments about the nature of the doctrine and whether it is compatible with private property rights. Finally, the Article concludes that, if ever there was a natural system on earth so fundamental to a region and worthy of protection under a public trust, it is the Great Lakes system.

Since 1985, the eight Great Lakes states and the Canadian provinces of Ontario and Quebec have cooperated to prevent almost all diversions of water from the Great Lakes basin. In 2005, the eight states signed an Agreement to create a tiered system of reviews for diversions and a draft interstate Compact, which creates a binding process to regulate diversions. This cooperation is primarily a state initiative, supported by the federal governments in both countries, which has paid little attention to the international character of the lakes. This Essay argues that there are three major benefits to the region from the incorporation of international environmental law into the anti-diversion regime. First, the recent Compact is an important recognition of the Lakes as a common heritage of human kind. Second, the success of the regime will be aided by the involvement of the International Joint Commission (IJC) in diversion issues because of its broader perspective on Great Lakes issues. Third, international law serves as an additional buffer against the invocation of international and domestic free trade laws to unravel the proposed environmental-navigation protection regime.

Rising urban and environmental demand for water has created growing pressure to re-allocate water from traditional agricultural uses. Water markets are powerful institutions for facilitating this re-allocation, yet the evolution of water markets has been more complicated than those for other resources. In this paper, we set the context for water marketing with an overview of western water law that highlights unique aspects of water law that affect how or whether a water market can develop. Second, we present new, comprehensive data on the extent, nature, and timing of water transfers across 12 western states from 1987-2005. We describe the methodology and decision rules used to collect water transfer information. Third, we identify water market trends and movements to provide a greater understanding of the institutional structure and the mechanisms by which water is transferred in the American West.

Restoration of environmental integrity in the Great Lakes Basin has been only a qualified success after thirty-five years of efforts pursuant to policies developed by federal, state, and provincial governments. Many unresolved problems stem from activities under local government control, yet in the past local governments were excluded from Great Lakes policy-making. By looking at recent changes in the powers, interests, experience, and influence of local governments in Ontario, this Essay concludes that local governments now have the ability to participate meaningfully in Great Lakes policy formation and implementation. To include local governments would improve the chances of successful restoration of ecosystem integrity. However, a number of challenges must first be tackled so that an expanded role for local governments can be most effective.

This Article argues for the rescue and reform of Supreme Court doctrine regulating capital sentencing trials under the Eighth Amendment. Many legal commentators, both liberal and conservative, including several members of the Supreme Court, have concluded that the Court's regulation of capital sentencing trials is a disaster. The repeated criticisms rest on a commonly accepted view about a principal goal of capital sentencing regulation. The prevailing account, fueled by the rhetoric of the Justices, stems from the notion that Furman v. Georgia, 408 U.S. 208 (1972), revealed a mandate of consistency in the use of the death penalty that the Court has struggled to fulfill. However, this Article shows that consistency is implausible as an Eighth Amendment aspiration and that the Court has never seriously pursued consistency after Furman. The Court has focused almost entirely on promoting expansive individualized consideration of capital offenders, a goal at odds with consistency. The problem is that the Court's continuing rhetorical commitment to Furman's mythical mandate has cast doubt on the value and legitimacy of individualization and has diverted attention from efforts to clarify why individualization serves Eighth Amendment ends. In defense of the doctrine, the Article provides an Eighth Amendment theory for individualization-one founded on avoiding retributive excess. The Article also shows, however, that this theory calls for reforms that could further assure that only the deserving receive the death penalty.

Nearly twenty years ago, Congress for the first time created a system for judicial review of decisions denying veterans benefits. Specifically, Congress created an Article I Court: the United States Court of Appeals for Veterans Claims. Veterans dissatisfied with actions of the Department of Veterans Affairs regarding benefits could appeal to the Veterans Court. The United States Court of Appeals for the Federal Circuit provided appellate oversight of the Veterans Court. There simply is nothing like the Veterans Court elsewhere in American law. Yet, despite its uniqueness, there has been little scholarly attention to this institution.

This Article begins to fill the gap in the literature through a focused consideration of the decisions of the Veterans Court and the Federal Circuit from 2004 to 2006. It has three principal parts. First, it describes the current structure of judicial review in the area and provides a statistical analysis of its operation during the relevant period. Second, the Article explores the substantive development of veterans law from January 2004 through March 2006. Finally, based on that substantive law, the Article draws conclusions about the operations of both the Veterans Court and the Federal Circuit.

The holdout juror in felony criminal trials is a product of the near-universal decision rule in federal and state courts of a unanimous verdict. In recent years, courts have increasingly inquired into a jury's deliberations when a holdout juror has been identified amid allegations of misconduct. This Article helps bridge the considerable gap between cognitive psychology and legal scholarship, analyzing the thought processes of the holdout juror through the application of empirical evidence and psychological modeling, to conclude that the improved protection of the holdout juror is a necessary and critical component to the preservation of a defendant's right to a fair trial.

Copyright law exists to promote the progress of art and science. It achieves this by balancing limited grants of rights to authors against public access to works. However, copyright holders have upset this balance and tilted the law in their favor. One cause of this phenomenon is that the benefit of public access to works is diffused throughout the entire public while the benefit of rights in works is concentrated in the copyright holder. This problem is especially prevalent in the context of litigation where copyright holders (plaintiffs) often stand to gain more through victory than copyright users (defendants). As a result of imbalanced litigation incentives, the fair use doctrine, a doctrine meant to preserve the balance of copyright law that relies on litigation for its development and efficacy, is often rendered nugatory despite the merits of the defendant's case. This Note contends that the current implementation of the Copyright Act's version of attorney fee shifting does not solve this problem and, in many cases, actually compounds it. This Note also argues for a new interpretation of the Supreme Court's mandate of "evenhanded" treatment of copyright plaintiffs' and defendants' fee petitions. Rebalancing litigation incentives would restore fair use and refocus copyright law on the promotion of progress.

Partisan gerrymandering is a danger that threatens the foundations of the American democratic structure. This Note argues that partisan gerrymandering must be eliminated in order to foster political competition and ensure government accountability. Without a judicial solution, redistricting commissions present a viable option to help cure the ills of partisan gerrymandering. This Note argues that automatic and mandatory state supreme court judicial review must be the process by which the redistricting plans drawn by these commissions are ratified. Automatic judicial review permits redistricting to remain a legislative task while giving the judiciary a quintessential judicial task. In addition, this Note argues that automatic state supreme court review of the reapportionment plans provides a fairer and more efficient ratification mechanism that can greatly influence the effectiveness of redistricting commissions in combating partisan gerrymandering.

What is the relationship between access to information and access to justice? Private parties obviously have many publicly available points of access to the information they seek in order to file a lawsuit. Lawyers can talk to their clients and other willing witnesses. Documents can be gathered. Specific statutes may sometimes permit information to be obtained before a formal lawsuit is brought. On other occasions, however, information needed or desired will lie solely within the exclusive knowledge and control of another. The ability of private parties to compel the production of information, documents, or testimony before litigation rarely has been seriously considered as a factor bearing on access to court. Along with a lack of treatment of the doctrinal sources of authority, no attempt has been made by academic commentators or by those most closely involved in civil procedural reform to gather empirical evidence to determine how important the right to take presuit investigatory discovery is to the institution and maintenance of civil suits. This Article seeks to fill these vital gaps that exist in the literature and in the public debates, more generally, over access to justice. After examining the available authority in the federal and state courts, the author gathers and reports on original empirical research conducted on the use of presuit investigatory discovery by private parties. That data comes from Texas, where the state rule provides the broadest grant of authority to prospective litigants to invoke judicial process for investigatory purposes. The empirical evidence from Texas may reasonably be read as indicating widespread use of the state's presuit discovery rule: one out of two lawyer and judge respondents reported at least one experience in which a presuit deposition was taken. Relatedly, it appears that approximately sixty percent of the time the deposition was taken to investigate a potential claim before suit was filed; the remaining forty percent of depositions were secured for the purpose of perpetuating testimony. Examining the available data, the author argues that there are good reasons to believe that the perceived need to satisfy formal legal requirements for bringing suit, as well as the pull of practical considerations, may plausibly explain the use of the state's presuit discovery rule. Read in this manner, the empirical evidence suggests that an important relationship exists between access to information and access to justice.

This Article takes a law and economics approach to exploring some of the costs that arise when governments rely on private enforcement to accomplish the goals of public law. The analysis focuses on qui tam enforcement under the Civil False Claims Act, because a remarkable body of empirical data demonstrates the expansive role private qui tam relators are playing in enforcing Medicare and Medicaid fraud and abuse laws. The Article further focuses on the application of these laws to the pharmaceutical industry. This focus is enlightening because the Government, as well as private enforcers have recently targeted this industry so that emerging legal trends in private enforcement are readily evident. The economic concept of moral hazard a well-recognized theory that a person takes more risks and exercises less care when insured than she would if uninsured is applied to reconceptualize the costs and benefits of private enforcement. These costs are most dramatic when, as in the case of pharmaceutical fraud, the government overwhelmingly cedes to private enforcers its responsibility to protect the social good. This phenomenon is called the "privatization" of public enforcement. The analysis demonstrates a fundamental divergence between private and public incentives in False Claims Act prosecutions. The availability of private enforcers creates significant opportunities for public prosecutors to overenforce. Moreover, the reduction in short-term risk causes Government prosecutors to reduce the care that typically controls their exercise of prosecutorial discretion. The explanatory power of the moral hazard analysis is borne out by a review of case law that demonstrates private enforcement patterns that significantly depart from the public goals of federal anti-fraud law. The Article concludes by proposing legislative language that would reform the qui tam statute, and bring public and private enforcement goals into alignment.

The attacks of September 11 prompted a historic debate concerning terrorism and domestic emergency response. This ongoing dialogue has driven policy decisions touching upon both liberty and security concerns. Yet despite the enormous effort that has gone into the national response, the role of the sovereign states, and with it federalism, has received comparatively little attention. This Article explores the relevance of federalism within the context of the "War on Terror" and in the aftermath of Hurricane Katrina. Acknowledging that theories of federalism developed elsewhere are insufficient, he outlines a doctrine of 'emergency federalism.' The author argues that the Framers consciously retained federalism in times of threat and conflict analogous to today's challenges. He finds that, relative to the national authority, the scope of states' interests wax and wane depending upon the severity of the threat and the territorial context, though in no instance are they completely extinguished. Giuliano shows that this design reflects a judgment, written into the Constitution, that emergency federalism enhances both security and liberty relative to a more unilateral approach. He then illustrates how the experience of September 11, the national response since that date, and Hurricane Katrina together indicate that increasing the states' role should, in practice, promote both security and liberty. Having described emergency federalism and identified its potential advantages, the Article concludes by suggesting possible legal and policy reforms, including those based on the conclusion that the National Guard is constitutionally unstable as currently constituted.

Psychiatric advance directives are a valuable tool for individuals with mental illnesses. Ulysses directives, in particular, allow individuals to bind themselves to treatment in advance of needing it for the purpose of overcoming illness-induced refusals. This Note evaluates the effectiveness of state advance directive statutes in three areas that are especially important for Ulysses directives: defining competency to execute, activate, and revoke directives; waiving the constitutional right to refuse treatment; and encouraging provider compliance. This Note ultimately advocates for other states to adopt provisions similar to a Washington State statute. The Washington statute authorizes Ulysses directives by allowing advance consent to treatment, establishing a mechanism for overriding refusals, and permitting irrevocability, but it also provides flexibility so that individuals can craft a personalized plan for their needs.

The phrase "fishing expedition" is widely used in popular culture and in the law. In the legal setting, reliance on the metaphor can act as a substitute for rigorous analysis, disguising the factors that influence the result in a case. At best, it is uninformative. Worse, the fishing metaphor may itself shape the court's attitude toward the issue or claim in a lawsuit.

This Article begins by tracing the development of the "fishing expedition" metaphor in civil cases, demonstrating how its changing uses reflect and contribute to the legal controversies of each era. The policies that originally supported limited use of the metaphor have long been rejected. The drafters of the Federal Rules of Civil Procedure tried to overcome the metaphor. Nevertheless, in contemporary cases the prohibition of "fishing" is omnipresent.

In an overwhelming proportion of modern cases, it is plaintiffs who are said to be "fishing," and the metaphor's concentration in certain types of cases reflects and reinforces an anti-plaintiff bias. The Article concludes by suggesting that we reject the fishing metaphor. It has been trite for more than two hundred years. More important, the fishing metaphor may camouflage reasoning that violates the letter or spirit of the Federal Rules of Civil Procedure.

The Interstate Compact on the Placement of Children deals with the interstate placement of abused, neglected and abandoned children. This article addresses the critical need for reform of the Interstate Compact and attempts to tackle its most serious flaw - the lack of a provisional placement for children awaiting approval of out-of-state kinship placements. The recently enacted Safe and Timely Interstate Placement of Foster Children Act of 2006 (the "Act") is seriously flawed to the detriment of one of our country's most vulnerable groups and the very population it is designed to protect - children who have been abused, neglected and abandoned. This article criticizes the Act and other current reform efforts and proposes a provisional placement system that would allow children to be immediately placed with family members across state lines. The implementation of a provisional placement will: (1) encourage many courts who are currently ignoring the mandates of the Interstate Compact to comply with its provisions; (2) minimize the trauma associated with being separated from a biological parent; (3) enhance the likelihood that siblings can remain together while in foster placement; (4) decrease the overall number of placements to which a child is subjected; and (5) free up scarce traditional foster placements for other child placements.

This Article argues that the Supreme Court, as evinced by its recent spate of criminal jury decisions, has abandoned the criminal jury known to the Founders and, in so doing, has severely eroded the protections intended to inhere in the Sixth Amendment jury trial right. It then proposes one potential solution to this problem.

According to the Supreme Court, this recent line of cases has been motivated by the need to preserve the "ancient guarantee" articulated in the Sixth Amendment under a new set of legal circumstances. Unfortunately, the Court misinterprets the ancient guarantee that it is ostensibly attempting to preserve by focusing exclusively on the criminal jury's formal aspects and ignoring its long-standing historical function as a quasi-sentencing body. The author argues that both the criminal jury known to the Founders and its English antecedent were, at heart, sentencing bodies and that this sentencing function was essential to the Sixth Amendment protections promised to criminal defendants. By recasting the jury in the mold of simple fact-finder, the modern Court has hindered the jury's ability to interpose a body of citizens between the government and the accused, leaving the accused without adequate protection against prosecutorial overreaching and the various other forms of government oppression with which the Founders were concerned. The article concludes with an argument that this evisceration of the Sixth Amendment could be remedied, at least in large part, by informing juries of the sentencing consequences of their actions. This solution would not only serve to reinforce the various protections that the jury system was intended to confer upon criminal defendants, but would create a trial dynamic which more closely adheres to the archetype endorsed by the Founders.

On December 16, 2005, the New York Times sounded a fire alarm when it revealed that, in response to the September 11, 2001 attacks, President George W. Bush had issued a secret executive order permitting the National Security Agency (NSA) to conduct warrantless surveillance on individuals to unearth nascent terrorist activity. Congress responded to the disclosure of the NSA domestic surveillance program largely by shirking its oversight duties. This Note argues that when a single party controls both the executive and the legislative branches, the fire-alarm model fails to provide sufficient congressional oversight. Short of future elections altering the balance of power, this Note argues that Congress should seek new methods that readily engage bipartisan support and judicial review to oversee secret executive programs more effectively.

This Note will discuss whether Indian tribes can assert tribal sovereign immunity to avoid compliance with state campaign finance regulation and whether such regulations should be preempted by federal law. Tribal sovereign immunity is not an enshrined constitutional imperative; it exists only under federal common law, and can be limited by the courts from blocking state suits to enforce campaign finance regulations against tribes. This Note will also argue that state campaign finance regulations should not be preempted by federal law because states have a compelling interest in protecting their political processes from corruption that outweighs tribal interests in flouting the laws. States also enjoy rights arising from the text of the U.S. Constitution under the Tenth Amendment and the Guaranty Clause, which courts should recognize to permit states to regulate tribes in the context of state campaign finance laws.