Spring 2009 - Comparative Environmental Law
Benjamin, Antonio H
Course ID: 397S Unique # 28755 Credit Hours: 3
5:30 pm - 7:20 pm
3:30 pm - 6:20 pm
This course is restricted to upper division students only.
CLASS MEETS JANUARY 20-FEBRUARY 19.
Related Course Areas
What the Seminar is about. This seminar intends to cover a variety of complex modern environmental issues which interest both common and civil law jurisdictions. Traditional Comparative Law courses start from existing national legislation and legal institutions. This approach will not be followed here. Instead, the course uses a problematic methodology, departing from a group of controversial environmental law issues common to most countries in the world. In this context, then, the legal solutions and instruments adopted by the different jurisdictions are analyzed. This approach is designed to reach two basic goals. First, it is meant to, as much as possible, free the student from the legal framework in place in her or his country, stimulating creativity in the use of law as a tool for the protection of the environment. Second, it stresses the desirability of studying core environmental problems from a global perspective, irrespective of established national legal orders or traditional normative instruments.
Objectives. The seminar intends to give the student basic knowledge on some of the most important Environmental Law issues of the world, enabling her to analyze and understand the different forms of environmental regulation and legal solutions adopted in various countries and legal systems.
The purpose of the seminar is not to train the student on international environmental law or on national environmental law from specific countries, but rather to provide the means to identify the major legal environmental problems in any jurisdiction and come up with reasonable solutions which could be applied worldwide.
Students who plan to work for major law firms with international clients, multilateral organizations, multinational corporations and international NGOs will benefit the most from the topics covered. The seminar will also provide those who intend to practice Environmental Law in the United States a better understanding of the rationales for the national solutions and mechanisms adopted to face environmental problems.
The seminar is divided into five (not necessarily equal) parts: (1) foundations of Comparative Environmental Law, (2) constitutional basis for environmental protection, (3) property rights and the environment, (4) legal dimension of sustainable development, and (5) environmental enforcement.
Part 1 is a general introduction to the course in which the main characteristics, regulatory approaches, objectives, principles and tools of Environmental Law are discussed from a comparative and international perspective.
Part 2 mainly asks the question whether we need a constitutional clause in order to adequately protect the environment. The examples of some U.S. States, the European Union Treaty, and the cases of countries like Germany, Mexico, Spain, Portugal, Norway, Brazil, Russia, Colombia and South Africa will be covered.
Part 3 will deal with the relationship between property rights and the protection of the environment, from both an international and domestic perspective, benefiting from the current debate and judicial experience in the U.S. and Europe. It will survey issues such as a) the concept of property rights in the environmental protection age; b) the just compensation doctrine; c) regulatory takings; d) the German concept of "social obligation" inherent in ownership; e) the notion of "ecological function" of property; and, f) the international implications of the American "wise use" movement.
Part 4 will study the legal concept of sustainability and the role of and challenges to law in securing sustainable development. It will cover the recent developments in that particular topic, stressing the analysis of the intergenerational equity concept, as well as the precautionary, the polluter- pays (civil liability and natural resources damage) and the user-pays principles.
Part 5 intends to examine, from a comparative perspective, the challenging global problem of environmental compliance and enforcement. Environmental citizen and class actions will be reviewed and also the role of criminal sanctions, the judiciary and non-governmental organizations.
Methodology. The Seminar will use five types of learning tools:
a) legal (and also non-legal) texts b) video conference discussions c) lectures by experts from outside the Law School d) short oral presentations by students e) research paper
Reading materials. There is no single book that covers the subject matter in full detail. The Seminar will use reading materials from different authors, most of them Americans. The texts written by foreign authors will be in English.
Video conferences. There will be one or two video conferences among the students and the author of one of the articles or chapters of books previously assigned. In past years scholars from the U.S., U.K., Australia, Austria, France, Italy, Belgium, New Zealand, Canada, Brazil and Germany joined the discussions.
Lectures by outside experts. Finally, there will be at least one opportunity in which outside experts will visit the Law School and exchange their views with the students on a specific issue of the seminar program.
Oral Presentations to Class. Each student must make a presentation of her/his paper, during which she will lead a class discussion about her topic for approximately 30 minutes.
In addition to that, students will be required to make short 15-20 minute oral presentations of assigned texts. The use of hand-outs and PowerPoint is encouraged.
Research Paper. The paper should be a minimum of 30 pages long, typed, double spaced, in 12 point type size. Students are expected to choose their paper topics in consultation with the class instructor.
Interim drafts will not be graded. Failure to meet deadlines in timely fashion without the instructor's prior permission will affect the overall assessment. A copy of the second draft of each student's paper will be circulated to the group before its presentation.
The final version of the paper should be submitted no later than March 31 and reflect relevant commentary during the presentation. Grading. There are six components to the final grade:
a) final paper: 40% b) paper presentation: 15% c) paper criticism: 10% d) short-presentations: 15% e) class participation: 10% f) class attendance: 10%
The paper will be graded on five criteria (in order of decreasing importance): a) critical thinking; b) quantity of research; c) quality of research; d) organization; and e) overall impression.
Prerequisites. There are no prerequisites. The students are not expected to have taken environmental law, international law or comparative law. However, previous knowledge in those areas would be useful. Students from other departments are most welcome.