[p2p-research] Fwd: Hudson: New Article: "Commerce in the Commons"

[Michel Bauwens]

> Dear Colleagues,
>
> The article "Commerce in the Commons: A New Conception of Environmental
and Natural Resource Regulation Under the Commerce Clause" has recently been
accepted for publication in the Harvard Environmental Law Review.  This
article applies the tragedy of the commons concept to the U.S. Supreme
Court's Commerce Clause jurisprudence - the Commerce Clause being the
constitutional basis for federal environmental regulatory authority in the
United States.  The article applies Elinor Ostrom's "appropriation" analysis
to resources present on privately owned lands to conclude that such
"privatized commons resources" meet established Commerce Clause tests for
determining the validity of federal environmental legislation in the U.S. -
and particularly the U.S.'s primary biodiversity statute, the Endangered
Species Act.  A working draft of the article can be downloaded here:
>
> http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1663838
>
> Abstract:
> Scholars continue to debate the scope of Congress’s Commerce Clause
authority and whether fluctuations in the U.S. Supreme Court’s Commerce
Clause jurisprudence place federal environmental regulatory authority at
risk. Yet when one analyzes the Supreme Court’s major Commerce Clause cases
involving resource regulation since the beginning of the modern regulatory
state, a surprisingly consistent theme emerges: the Court has consistently
upheld federal authority to regulate zero-sum, finite resources over which
rivalry of use takes place – the key characteristics of a commons. The
Court’s Commerce Clause jurisprudence can be interpreted as treating these
“privatized commons resources” as necessarily meeting the third test for
determining the validity of federal legislation under the Commerce Clause –
the “substantial effects” test. Recognizing the use of commons analysis to
meet the substantial effects test is an important step, as it provides
security about
>  the continued protection of valuable natural resources, a clearer
statement of the Court’s approach in environmental cases and more certainty
and effectiveness in environmental and natural resources legislation.
Commons analysis also answers persistent questions arising in Commerce
Clause cases, including when the aggregation principle may be invoked to
find substantial effects on interstate commerce, what the “object of
regulation” is in environmental Commerce Clause cases, and the proper scope
of federal Commerce Clause authority given constitutional federalism
requirements.
>
> Kind Regards,
>
> BLAKE HUDSON
> ASSISTANT PROFESSOR OF LAW
> PROPERTY, NATURAL RESOURCES AND THE ENVIRONMENT
>
> STETSON UNIVERSITY COLLEGE OF LAW
> 1401 61ST STREET SOUTH
> GULFPORT, FL 33707
> bhudson at law.stetson.edu
> (727) 562-7842 (phone)
>

---------- Forwarded message ----------
From: Silke Helfrich <Silke.Helfrich at gmx.de>
Date: Sun, Aug 29, 2010 at 10:00 PM
Subject: Hudson: New Article: "Commerce in the Commons"
To: David Bollier <david at bollier.org>, "James B. Quilligan" <
jbquilligan at comcast.net>, Michel Bauwens <michelsub2004 at gmail.com>


fyi "Commerce in the commons" (see below, I didn't read it yet)

And have you seen the new book from Lewis Hyde "Common as air -
Revolution, art and ownership"
http://www.amazon.com/Common-Air-Revolution-Art-Ownership/dp/0374223130


Best
Silke


-------- Original Message --------
>                           Subject:
> New Article: "Commerce in the
> Commons"
>                              Date:
> Thu, 26 Aug 2010 14:28:54 -0500
>                              From:
> Blake Hudson
> <bhudson at law.stetson.edu>
>                          Reply-To:
> Blake Hudson
> <bhudson at law.stetson.edu>
>                                To:
> Biodiversity Info Mailing List
> <biodiv-l at lists.iisd.ca>
>
>
> Apologies for cross-posting
>
> Dear Colleagues,
>
> The article "Commerce in the Commons: A New Conception of Environmental
and Natural Resource Regulation Under the Commerce Clause" has recently been
accepted for publication in the Harvard Environmental Law Review.  This
article applies the tragedy of the commons concept to the U.S. Supreme
Court's Commerce Clause jurisprudence - the Commerce Clause being the
constitutional basis for federal environmental regulatory authority in the
United States.  The article applies Elinor Ostrom's "appropriation" analysis
to resources present on privately owned lands to conclude that such
"privatized commons resources" meet established Commerce Clause tests for
determining the validity of federal environmental legislation in the U.S. -
and particularly the U.S.'s primary biodiversity statute, the Endangered
Species Act.  A working draft of the article can be downloaded here:
>
> http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1663838
>
> Abstract:
> Scholars continue to debate the scope of Congress’s Commerce Clause
authority and whether fluctuations in the U.S. Supreme Court’s Commerce
Clause jurisprudence place federal environmental regulatory authority at
risk. Yet when one analyzes the Supreme Court’s major Commerce Clause cases
involving resource regulation since the beginning of the modern regulatory
state, a surprisingly consistent theme emerges: the Court has consistently
upheld federal authority to regulate zero-sum, finite resources over which
rivalry of use takes place – the key characteristics of a commons. The
Court’s Commerce Clause jurisprudence can be interpreted as treating these
“privatized commons resources” as necessarily meeting the third test for
determining the validity of federal legislation under the Commerce Clause –
the “substantial effects” test. Recognizing the use of commons analysis to
meet the substantial effects test is an important step, as it provides
security about
>  the continued protection of valuable natural resources, a clearer
statement of the Court’s approach in environmental cases and more certainty
and effectiveness in environmental and natural resources legislation.
Commons analysis also answers persistent questions arising in Commerce
Clause cases, including when the aggregation principle may be invoked to
find substantial effects on interstate commerce, what the “object of
regulation” is in environmental Commerce Clause cases, and the proper scope
of federal Commerce Clause authority given constitutional federalism
requirements.
>
> Kind Regards,
>
> BLAKE HUDSON
> ASSISTANT PROFESSOR OF LAW
> PROPERTY, NATURAL RESOURCES AND THE ENVIRONMENT
>
> STETSON UNIVERSITY COLLEGE OF LAW
> 1401 61ST STREET SOUTH
> GULFPORT, FL 33707
> bhudson at law.stetson.edu
> (727) 562-7842 (phone)
>





-- 
P2P Foundation: http://p2pfoundation.net  - http://blog.p2pfoundation.net

Connect: http://p2pfoundation.ning.com; Discuss:
http://listcultures.org/mailman/listinfo/p2presearch_listcultures.org

Updates: http://del.icio.us/mbauwens; http://friendfeed.com/mbauwens;
http://twitter.com/mbauwens; http://www.facebook.com/mbauwens

Think tank: http://www.asianforesightinstitute.org/index.php/eng/The-AFI
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://listcultures.org/pipermail/p2presearch_listcultures.org/attachments/20100831/9f0a8a77/attachment.html>