Have Judges Gone Wild? Plaintiffs' Choices and Success Rates in Litigation against Federal Administrative Agencies
Feller, Joseph M., Environmental Law
PETER A. APPEL ** & MARK SQUILLACE ***
Our colleague, Professor Joe Feller of the Sandra Day O'Connor College of Law at Arizona State University was well-known and well-regarded in the community of environmental and natural resources law professors. He stood out for the quality of his scholarship, as well as his active and helpful participation in our community and his community at large. Tragically, a car struck and killed Professor Feller on the evening of April 8, 2013, while he was returning home from work.
Joe had been the inspiration for a natural resources law teachers conference scheduled for the following month in Flagstaff, Arizona. Following that conference, Professors Appel and Squillace conversed and agreed that one of many suitable tributes to Joe would be to arrange to publish one of the last articles that Joe drafted. The subject was wilderness. Professor Squillace received the Article in draft with Joe's request that Squillace make comments on it. Professor Appel--who had never met Joe in person but had spoken to him on the phone and had exchanged emails several times with him--received the Article in draft because the Article directly and pointedly critiques some of Appel's own work. Despite his near-complete rejection of Appel's arguments, Joe nevertheless suggested that, as the Article matured with revision, he and Appel could be co-authors on the piece. Appel responded in a lengthy email, which is reproduced after the main body of the Article. Unfortunately, that collaboration or friendly debate never occurred. Nevertheless, the offer to co-author the Article is a striking testament to Joe's generosity, willingness to cooperate, and his focused dedication to get the answer to a problem right. As those who have delved in the law know, getting the right answer is not as easy as it sounds.
As the reader will see, this Article involves important issues regarding wilderness specifically and federal environmental litigation generally. Despite the fact that it does not represent Joe's finished thoughts on the subject, we nevertheless believe that this Symposium issue of Environmental Law offers an ideal forum for this fine piece of scholarship. With the generous agreement of the journal's editors, as well as the permission of Joe's family and his community at ASU Law, we present this Article to join its rightful place in the legal literature about wilderness.
A note on editing: Because we wanted this Article to represent Joe's views and not our own, we have taken a very light touch in editing this Article. We have taken the liberty to correct typographical errors and citations to conform to the Bluebook and to Environmental Law's style guidelines. Where we believed that a thought needed expansion or clarification, we have done so and noted the emendation in square brackets. We tried to channel Joe as best as we could to keep these thoughts in the spirit of Joe's thinking, not our own.
In closing, we wish to express deepest gratitude once again to Professor Joe Feller's family for granting us permission to reproduce Professor Feller's Article posthumously. We hope that this serves as a fitting tribute and memorial to the life of a great scholar, passionate advocate, good friend, and all-around mensch.
I. INTRODUCTION II. EMPIRICAL STUDIES OF JUDICIAL REVIEW OF ADMINISTRATIVE AGENCY ACTIONS A. Pre-Chevron Studies (1975-1986) B. Post-Chevron Studies (1990-2006) C. The Appel Study (2010) III. PLAINTIFFS' CHOICES IN PRIVATE DAMAGES LITIGATION A. The Priest-Klein Model B. Application of the Priest-Klein Model to Judicial Review of Agency Decisions IV. CRIMINAL TRIALS AS AN ALTERNATIVE ANALOGUE A. The 3R Model V. PLAINTIFFS' SELECTION IN WILDERNESS LITIGATION VI. WHICH MODEL? A. "More Protection" Cases: Modified Priest-Klein or Criminal Model B. "Less Protection" Cases: Random Selection? …