Returning to Plato’s Cave: Metadata’s Shadows in the Courtroom

2016, Past Issues, Print, Volume 48 (2016) Issue 2 (Summer)
Zachary Rosenberg. The computer revolution changed every facet of our lives, including litigation. Though computer interfaces are designed to display information through familiar renderings of everyday physical objects, computer files are stored and behave differently from their physical counterparts. Metadata, the information contained in a computer file that are almost invisible to users, can profoundly affect the admissibility and authenticity of digital files. This paper explains what metadata are and the role they play in litigation to authenticate other evidence or as evidence in itself. This paper proposes a new best practice for attorneys: whenever a lawyer receives an electronic file or hard drive from a client, the attorney should immediately back up and forensically image it so that the metadata are preserved. Full Article
Read More

Firewise: The Value of Voluntary Action and Standard Approaches to Reducing Wildfire Risk

2016, Past Issues, Print, Volume 48 (2016) Issue 1 (Spring)
Faith Berry, Lucian Deaton & Michele Steinberg. Regionally, nationally and globally, threats to life, property and resources from wildfire are growing. Changing climate conditions, growth of vulnerable communities into high-hazard areas, and limited governmental and financial resources available to cope with this threat all mean that wildfire losses are expected to continue and expand. It is not possible to find a single and simple solution to all of the problems that the scenario of larger, damaging wildfire presents. However, when focusing on how to prevent wildland/urban interface (WUI) fire disasters—the destruction of dozens or hundreds of structures during significant wildfire events—researchers and safety advocates have discovered solutions in the form of voluntary community action to reduce wildfire risks around homes and neighborhoods, and in sound design and construction standards that…
Read More

Friedrich A. Hayek, the U.S. Constitution, and Institutional Design

2016, Past Issues, Print, Volume 48 (2016) Issue 1 (Spring)
Steven Gow Calabresi. In their article, Against Design, Caryn Devins, Roger Koppl, Stuart Kauffman, and Teppo Felin argue that it is impossible for any lawmaker to successfully design a Constitution or a law so that it will produce the ends that the legislator wishes to enact. The authors argue that institutional design is impossible because every such design in law sets in motion a Spontaneous System of Order, which then develops the law or institution in ways the Framers of such laws and institutions could never have imagined. This is the case because changing circumstances and unforeseeable inventions and developments render all laws and institutions infinitely malleable. The authors thus challenge the use of Original Public Meaning in constitutional interpretation saying that the theory fails because the Framers never even…
Read More

Restoring the Sustainability of Frequent-Fire Forests of the Rocky Mountain West

2016, Past Issues, Print, Volume 48 (2016) Issue 1 (Spring)
W. Wallace Covington & Diane Vosick. The ecological, social, and economic sustainability of the Rocky Mountain West is threatened by declining forest health that is manifested by unnaturally high tree densities and fuel loads, increases in invasive exotic plants, decreasing biological diversity (plants and animals), and increased insect and disease outbreaks. These unnatural fuel loads lead to wildfires that have become unprecedented in their severity, acreage, and effects. In this paper we discuss the causes of forest health decline and advocate for ecological restoration as an approach for restoring forest health. We also summarize recent policy changes with the stated purpose to accelerate restoration and provide economic validation for why restoration is the smartest approach for reducing the threat of catastrophic fire. Full Article
Read More

New Models for Funding Public Lands Management: A Case Study of the Northern Arizona Forest Fund

2016, Past Issues, Print, Volume 48 (2016) Issue 1 (Spring)
Rebecca Davidson, Spencer Plumb & Marcus Selg. At the end of the twentieth century, scholars divided public land policy within the United States into three periods: disposition, reservation, and management. As we enter the twenty-first century, our public lands are declining in health and, from a financial standpoint, are less an asset and more a liability. To address the issues facing public lands management, the federal government is now more dependent on public-private partnerships as well as private investment in the health of our public lands. Begging the question— are we entering a new period for public land policy following the “period of management”—an era of public-private partnerships? Public-private partnerships, referred to as partnerships from here forward, are agreements between a federal public agency and a private individual, business, or…
Read More

Still Against Design: A Response to Steven Calabresi, Sanford Levinson, and Vernon Smith

2016, Past Issues, Print, Volume 48 (2016) Issue 1 (Spring)
Caryn Devins, Roger Koppl, Stuart Kauffman & Teppo Felin. Our argument in Against Design may seem new, challenging, or even bizarre. One commenter, Levinson, questions whether we really mean what we say: “I presume that the authors cannot really be arguing that all design is impossible.” Given our admittedly unorthodox and perhaps radical challenge to common notions of design, we appreciate the thoughtful attention to our views given by our commenters Vernon Smith, Sanford Levinson and Steven G. Calabresi. Even when disagreeing with us, they have responded to Against Design with open minds. But we must take responsibility for any misunderstandings. In particular, it seems we were not clear enough in explaining that constitional design will fail not because constitutional provisions will fall away. They may well endure as Levinson…
Read More

The Resilience Dilemma: Incorporating Global Change into Ecosystem Policy and Management

2016, Past Issues, Print, Volume 48 (2016) Issue 1 (Spring)
Donald A. Falk. The progression of changes to Earth’s climate poses unprecedented challenges to the science and practice of ecosystem management. The viability of many populations, species, and even ecosystems is increasingly uncertain in their current form. Effects of climate change per se are compounded by multiple interacting stressors, including landscape modification and fragmentation, alerted disturbance regimes (particularly wildland fire), and the increasing presence of non-native invasive species. In framing a meaningful response to global environmental change, all of these interacting factors must be taken into account. For example, the ability of species to migrate in response to changing climate geography—as nearly all species have done during past eras of rapid climate change, such as the end of the last interglacial period—may be impaired by fragmented landscapes that pose barriers…
Read More

The Cost of Inaction: Flagstaff Watershed Protection Project Cost Avoidance Study

2016, Past Issues, Print, Volume 48 (2016) Issue 1 (Spring)
Wayne R. Fox. This study estimates the potential financial damages mitigated by the implementation of the Flagstaff Watershed Protection Project (FWPP). The goal of FWPP is to reduce the threat of catastrophic wildfire and post-fire flood impacts by conducting fuel-reduction forest treatments in two watersheds critical to the City of Flagstaff—the Dry Lake Hills (Rio de Flag) and Mormon Mountain (Lake Mary). By thinning unnaturally dense vegetation and using prescribed fire in these areas, the risk of intense wildfire and post-fire impacts will be significantly reduced. The primary risks of wildfire are two-fold: damage from fire and damage from resulting floods. Severe, uncharacteristic fire destroys trees, wildlife, and recreation value and threatens homes and infrastructure in its path. Floods occur in the areas downstream of burns and can cause severe…
Read More

How Forest Treatment Saved the Bray Creek Ranch

2016, Past Issues, Print, Volume 48 (2016) Issue 1 (Spring)
Michael A. Johns. Bray Creek Ranch is an old homestead along the Highline National Recreation Trail, which is a part of the Arizona Trail, at the base of the Mogollon Rim about twelve miles north of Payson, Arizona between Boy Scout Camp Geronimo and Girl Scout Camp Shadow Rim. The ranch is surrounded by National Forest in the Ponderosa Pine type at about 6,000 feet elevation. I started my Federal career in 1969 on the Payson Ranger District Helitack Team. In 1972 we formed the District’s first Hotshot crew and I was asked to be its first foreman. In 1973 I clerked for the U.S. Attorney’s Office and was appointed as an Assistant U.S. Attorney in 1974. I have been representing the United States, Federal agencies, and Federal employees in…
Read More

4FRI and the NEPA Process

2016, Past Issues, Print, Volume 48 (2016) Issue 1 (Spring)
Annette Fredette. The Four Forest Restoration Initiative (4FRI) is the largest collaborative, landscape-scale restoration initiative in the country, the largest initiative of its kind ever endeavored. This initiative’s goal is nothing less than the restoration of the ponderosa pine forest stretching across northern Arizona. It seeks to reduce the threat of destructive wildfire to thriving forest communities, restore forest ecosystems with natural fire regimes and functioning populations of native plants and animals, and build and sustain forest industries that strengthen local economies. 4FRI as an initiative stretches across four national forests: the Kaibab, Coconino, Apache-Sitgreaves, and Tonto. This initiative is a large umbrella that not only includes the project area analyzed in the first Environmental Impact Statement (EIS), but also restoration projects already approved in other National Environmental Policy Act…
Read More