bluuebunny/crossref_metadata_2025 huggingface dataset:
Property Rights in Virtual Reality: All’s Fair in Life and Warcraft?
Authors: Lowry Sharon K.
Published: January 2023

To explore these issues, this Comment will first give some background on the rise and explosive growth of virtual worlds. The focus of the first section will be on the development-and especially the economics-of massively multiplayer online role-playing games (MMORPGs), in which millions of subscribers interact with each other via the Internet to accomplish tasks or to engage in commerce or other activities. After a general tour of MMORPGs, the Comment will concentrate on the world of Second Life. Second Life is unusual among MMORPGs in that it is totally free-form, with no goals or quests or prizes to win. It is a world created by its "residents." But the feature of Second Life attracting most attention is that Second Life is the first virtual world that allows its residents to retain intellectual property rights to their in-world creations.
The Comment will then review litigation related to in-world activities and the ability of the real-world legal system to resolve in-world disputes. What rights do avatars have in the real world? Does Kevin Alderman, the real-world head of Eros, LLC have a cause of action against Robert Leatherwood, the real-world name of the avatar "Volkov Catteneo," for theft of intellectual property created in Second Life by Alderman's avatar "Stroker Serpentine"? Section III will use Bragg v. Linden Research, Inc. and Eros, LLC v. Doe to focus on issues related to both virtual real property and virtual intellectual property.
Section IV will describe the current intellectual property regimecopyright, trademark, and patent law-as it relates to virtual property. Among the issues discussed in this section will be the failure of the Digital Millennium Copyright Act (DMCA) to protect the copyrights represented in the Catteneo and Simon lawsuits.
This Comment concludes, first, that real-world courts are an appropriate forum for virtual-world property disputes. A second conclusion is that, rather than applying the contract law embodied in End User License Agreements (EULA) to every dispute involving a virtual world, the law applied should depend on the nature of the dispute. Finally, this Comment concludes that copyright, trademark, and patent laws need revision to deal with virtual intellectual property, and they are ill-suited to other types of virtual property.
The Art of Mediating Civil Lawsuits
Authors: Amis Mike
Published: January 2023

Bearing in mind the definition of the word "art," the Author proceeds with a mixture of trepidation and bravado in committing to print his description of the "unanalyzable." What follows is the Author's sharing of the methods with which he approaches and conducts his role as a mediator of civil lawsuits, crediting most, if not all, he has learned to his trainer, Steve Brutsche (1947-1991), and to the hundreds of lawyers who have appeared as advocates in mediations he has conducted over the past nineteen years. The discussion will generally follow the chronological flow of a typical day of mediation and will direct particular attention to the close of the session.
Drilling Into the Issues: A Critical Analysis of Urban Drilling’s Legal, Environmental, and Regulatory Implications
Authors: Cady R. Marcus
Published: January 2023

This paper will aggregate and discuss some of those issues, including Fort Worth's attempt to balance the benefits and burdens of urban drilling. Section I will explain the significant advantages associated with increased production of natural gas. Section II will present a general overview of the Barnett Shale. Section III will detail some of the legal doctrines relative to oil and gas, land use, and water rights. Section IV will cover some of the potential environmental impacts of urban drilling on the community. Section V will review and analyze pertinent sections of Fort Worth's municipal drilling ordinance, along with some commentary regarding the effectiveness of the ordinance. Section VI will explore whether a prohibitive drilling ordinance rises to the level of a regulatory taking. Finally, a brief conclusion will be offered in Section VII weighing the benefits of urban gas production against the potential for environmental harm.
Ultimately, this paper is driven by the need to define the proper balance between the advantages of increased natural gas production and the potential environmental and legal impacts of urban drilling. However, the balance depends on the proper regulation of urban drilling through prudent municipal ordinances. Municipalities must be vigilant in enforcing their police power by enacting effective drilling ordinances, but must also use discretion in order to avoid takings claims and conflicts with state laws, which have historically favored the dominance of the mineral estate.
Does There Need to Be a Texas Tea Party? Mineral Estate Taxation With Representation
Authors: Kimball Joseph R.
Published: January 2023

The Texas Tax Code sets forth how all taxes in Texas should be levied and against what party or property on which the tax should be levied. In the instance of mineral estate taxation, however, a conflict resides in how the oil and gas terms are defined and how these definitions apply to taxing mineral estates. The courts, however, are in bed with the State in the taxation dilemma.
The application of the tax code to mineral "interests" is quite a mathematical achievement whose methodology cannot be protested. So, as in the urban mineral estate, how does one protest the valuation of one's minerals when quite possibly that valuation falls outside the Texas Tax Code? As usual, the presumption falls on the side of the taxing authority, not the protester.
Texas Property Tax Code specifically sets forth that "all real and tangible personal property . . . is taxable" based on its appraised fair market value. The Texas Property Tax Code also sets forth that mineral interests are classified as real property. The misidentification of property interests causes confusion, and thus Texas is taxing mineral interest owners on ordinary income versus market value, which in this Author's opinion, imposes a double taxation or a surreptitious income tax on the citizens of the State of Texas.
Severance vs. Servitude: Understanding the Differences Between Texas and Louisiana Law Regarding Mineral Rights
Authors: Pratt David L.
Published: January 2023

Over the past several years, advances in drilling technology and skyrocketing prices for natural gas have led to extraordinary events in the oil and gas exploration industry. At the height of the boom, increased exploration for natural gas in urban areas created opportunities never thought possible before by owners of urban lands-gas rigs began popping up in urban neighborhoods like dandelions in the front yard, natural gas companies began paying unprecedented bonus payments of $30,000 or more per acre, and contractual royalty payments virtually doubled to a now-typical rate of 25%. Of the many beneficiaries of these events, landowners and mineral owners within the Barnett Shale region of Texas are among the most prominent and well-known.
Although the natural gas boom has dramatically fallen away since late 2008, there can be no doubt that the market will one day recover. And when it does, a great deal of emphasis will likely be placed on the Haynesville Shale, which spans portions of east Texas, northwestern Louisiana, and southeastern Arkansas. As the development of the Haynesville Shale progresses, and as many of the oil and gas professionals in Texas begin to migrate eastward, it is important for those accustomed to Texas oil and gas law to develop an understanding of Louisiana law as it relates to mineral interests. Indeed, there are critical differences between the laws of Texas and Louisiana that can have a significant impact on identifying who has the capacity to enter into mineral leases, timing the commencement of drilling operations, and classifying those who are entitled to receive financial benefit from production-differences that those involved in the process must be prepared to navigate. This paper is intended to serve as a starting point in that endeavor.
New Facets of Old Alternatives for Unleased Mineral Interests
Authors: Vaughn Lisa
Published: January 2023

This article explores why pooling is especially needed in urban areas such as the Barnett Shale, and what operators and mineral interest owners can do to solve the problems caused by unleased and unpooled property interests.
Failure to Launch: How the Delinquent Politics and Policies of the Texas Legislature Have Failed to Remedy Texas’s Antiquated Judicial System and How Voters Have Accepted the Status Quo for Far Too Long
Authors: King Sandra Leigh
Published: January 2023

Several scholars, most notably judges, have called for judicial reform in the selection process of appellate and supreme court justices in Texas. However, not much attention has been placed on the selection process of Texas trial court judges. This Article focuses on the genealogy of district courts in Texas, with an emphasis on Texas's family court system, an area of the law that decides the fate of thousands of children who, for the most part, are unable to speak for themselves and that comprises a majority of civil cases within the state of Texas. As the majority of family court cases are decided by the trial court, judicial review by an appellate or higher court is virtually non-existent. It is therefore necessary to have associate and district court family judges who are educated and adequately staffed to handle the multifarious complex issues involving children and families. It is also vital that citizens better educate themselves about our judicial candidates and the judiciary in general until such time as the Texas legislature gets serious and enacts fundamental change pertaining to the selection of state judges at all levels.
Snowflakes in Texas? Enacting Legislation to Allow For Embryo Adoption
Authors: Bender Jodi L.
Published: January 2023

This Comment analyzes the legal status of an embryo in Texas and suggests that Texas should enact laws that will place a frozen embryo in a unique category not as a person, but as a special kind of property deserving of extraordinary respect. Additionally, Texas should develop and enact legislation addressing the issues uniquely related to the disposition of an embryo rather than trying to fit a square peg in a round hole.
Part II of this paper looks at a real-life couple facing a difficult decision- choosing the disposition of their frozen embryos. Part III discusses the background and history of embryo adoption. Part IV compares the legal status of embryos in various jurisdictions and the implications upon disposition of frozen embryos. Part V discusses the treatment of embryos by Texas courts and the Texas legislature and the latest attempts to regulate embryo adoption. Part VI suggests that, legally, Texas should continue to treat embryos as a special area of law by enacting legislation to deal with emerging issues such as embryo adoption without trying to use existing laws that apply to the rights of "persons."
Your Boring Life, Now Available Online: Analyzing Google Street View and the Right to Privacy
Authors: McGowen Jana
Published: January 2023

Courts and legislatures must recognize that Street View's current and future impact goes far beyond a private individual with a camera, and they will have to develop a new way to resolve these kinds of privacy concerns in the era of the omnipresent camera. This Comment will weigh the policies on both sides of the issue and will look at one's expectation of privacy not only as where, location wise, a person expects to be private, but also in what circumstances one expects to be private and the consequences of private camera monitoring and publishing on the internet. If Google is correct, and there is nothing new about taking photographs in public areas, perhaps the massive organization, monitoring, storage, and publication of photographs of citizens, streets, and homes online is the problem. Perhaps courts should give greater scrutiny to massive monitoring endeavors, especially when photos of Americans and their homes serve a limited public interest.
The Affirmatively Hispanic Judge: Modern Opportunities for Increasing Hispanic Representation on the Federal Bench
Authors: Wayner Linda Maria
Published: January 2023

There is an abundance of literature on how race shapes, or has the potential to shape, judicial decision-making. Rather than looking to what occurs once a Hispanic judge dons his or her robes, this Article examines the how and why of getting that judge appointed. Part I of this Article will review both the statistics of the general Hispanic population in the United States and examine how demographic changes warrant a renewed commitment to a diversified judiciary, and similarly review the current Hispanic composition serving on the federal bench. Part II will discuss why we should aim for representational parity between the percentage of Hispanics on the federal bench and the percentage of Hispanics residing in the United States. Part III will conclude that the Obama administration has the opportunity and mandate to aggressively promote Hispanic candidates to the federal judiciary, with the goal of continuing the upward trajectory that most recently occurred during the presidential administrations of Bill Clinton and George W. Bush.
Recreating the Law School to Increase Minority Participation: The Conceptual Law School
Authors: Wilson Patricia A.
Published: January 2023

That is the situation. Nonetheless, the purpose of this Article is not to criticize the current law school model. It is a model that has, in many respects, served society well, having produced thousands of competent lawyers over the years since it became the dominant model. It is the model that has produced all of the minority lawyers that are currently members of the profession. Moreover, to their credit, faculty and administration at many law schools are very motivated to improve the situation but are constrained in their efforts by the law and other factors. This Article is not meant to be unduly critical of the current law school model.
In addition, this is not meant to be yet another article arguing that law schools need to increase skills training. Rather, the simple question put forth is whether a different model for legal education might serve as an alternative to the traditional law school model and, in conjunction with the efforts of the traditional law schools, aid in increasing the numbers of minorities licensed to practice law.
Forced Pooling Within the Barnett Shale: How Should the Texas Mineral Interest Pooling Act Apply to Units With Horizontal Wells?
Authors: Blackwell Ronnie
Published: January 2023

On March 4, 1965, the Texas Legislature enacted the Mineral Interest Pooling Act' (MIPA), which became effective on August 29, 1965. MIPA has been amended twice since its enactment, most recently when it was codified in 1977.2 There is no doubt in my mind that extensive thought and effort went into the creation of MIPA; however, I believe the legislators could not have contemplated the effect MIPA would have on horizontal drilling in urban areas, more particularly, the Newark East Field (the Barnett Shale). Although I am not opposed to the legislators taking action to modify MIPA to address horizontal drilling in urban areas, or even adopting a horizontal well MIPA statute, I believe the Texas Railroad Commission (RRC) can effectively apply MIPA, as written, to horizontal drilling in the Barnett Shale, and still preserve the objectives of MIPA.
This Article will (1) address the brief history of MIPA to help understand why MIPA was enacted, (2) identify the purpose of MIPA, introduce the requirements necessary to invoke MIPA, and define some limitations restricting the use of MIPA, (3) review all MIPA applications regarding the Barnett Shale which have been granted or denied to determine how the RRC has applied MIPA to horizontal drilling in the Barnett Shale, and (4) identify specific issues found in the Barnett Shale MIPA orders and the Examiners' proposal for decisions which I believe the RRC has misapplied MIPA, and suggest how the current MIPA can be properly applied to horizontal drilling in the Barnett Shale while maintaining the purpose and objectives of MIPA when it was originally enacted.
Having Your Cake and Condemning It Too: When Asserting the Power of Eminent Domain Constitutes Breach of an Oil and Gas Lease
Authors: Chalk John Allen , Eaton Rebecca K.
Published: January 2023

The rapid increase in urban drilling for oil and gas in Texas, especially the shale natural gas plays that have become major producers of energy in Texas and other parts of the United States, have created new concerns for surface owners who also own the related minerals. One question is, how can land and mineral owners limit or prohibit surface use while leasing the minerals to producers? The advent of horizontal drilling that permits exploitation of leased minerals from off-site drilling locations prompts this new concern. The following is a scenario that frequently occurs in the current development and production of oil and natural gas, especially where minerals that a landowner leases are associated with a surface that the landowner concurrently uses for residential or commercial purposes.
Improving the Handling of Mentally Retarded Defendants in the Criminal Justice System
Authors: Gonzales Jacqueline
Published: January 2023

This Comment has four substantive sections beginning with a brief introduction about mental retardation. It will address how previous courts have handled mentally retarded defendants and identify emerging trends regarding the execution and punishment of mentally retarded individuals. This Author will then propose changes to the current system for handling mentally retarded defendants including: specialized training for judicial officers and special processing from booking and beyond. Followed by a brief discussion on the costs of implementation, how this system will help, and how the proposed system is different from the current system in place. Establishing a separate court system and minimum standards for the handling of mentally retarded individuals will give them the specialized care they need and result in the most effective punishment.
Public Policy Favoritism in the Online World: Contract Voidability Meets the Communications Decency Act
Authors: Percival Lynn C.
Published: January 2023

Section 230 is fully introduced in Part I of this Article, where the policy objectives behind the statute and case law interpreting it are discussed. Part II explains how current online advertising services, such as Google's Adwords, function and how they fit into the § 230 immunity scheme.
To explain why courts should favor operators, Part III utilizes the policy tension between § 230 and the FHA that can arise in the context of an online advertising contract. Suppose, for example, a brickand- mortar advertising agency entered into a contract through which the agency would post housing advertisements on the operator's website. If the rental agency expressed religious preferences in its ads, would either party be able to avoid contractual enforcement by asserting the contract is violative of public policy? Part III demonstrates that in most situations, operators-and only operators-should be able to avoid contractual obligations on public policy grounds.
Section 189 of the Restatement (Second) of Contracts provides a test for evaluating whether public policy should bar the enforcement of a particular promise. (Going forward, the restatements are referred to as the "First Restatement" and the "Second Restatement.") Section III.A explains how that framework functions and why it is a superior approach to that of the First Restatement. Section III.B demonstrates that when § 230 immunizes an operator from liability for illegal third-party content closely related to a contract between the operator and a content provider, the contract should generally be voidable at the option of the operator-not the content provider. Finally, other applications of this one-sided approach as well as a variety of implications for the media are discussed in Section III.C.
An Apple a Day Keeps Shareholder Suits at Bay: An Examination of a Corporate Officer’s Legal Duty to Disclose Health Problems to Shareholders
Authors: Stokes Alexis Brown
Published: January 2023

This Article examines both constitutional and practical problems with proposed regulation to require corporate officers to disclose health problems to shareholders. In doing so, the Article addresses the following questions, which are especially timely given the recent controversy surrounding Apple CEO Steve Jobs: To what extent should officers of public companies be required to disclose personal health problems to shareholders? Does a timely failure to disclose such information constitute securities fraud if the stock price is adversely affected once the information becomes public? Can shareholders' rights to accurate information relevant to a company's likely future performance trump an officer's right to privacy? To what extent do the answers to these questions depend on how closely the officer's identity is aligned with his/ her brand, i.e., how "iconic" the officer is perceived to be? Are these issues for regulators to address ex ante or the courts to handle ex post? And in either case, can an objective rights-balancing framework be developed?
A Prisoner’s Right to Access DNA Evidence to Prove His Innocence: Post-Osborne Options
Authors: McIntyre Kristen
Published: January 2023

Despite advances in DNA technology and the ability, for the first time, to prove almost conclusively the guilt or innocence of a defendant, the Supreme Court recently held that access to DNA testing is constitutionally irrelevant. In District Attorney's Office v. Osborne, the Supreme Court held that there is no independent Constitutional right to post-conviction DNA testing under the Fourteenth Amendment. Instead, the Court held that it must be left up to the States to enact post-conviction relief statutes. This Note posits that the Court must acknowledge the inevitable changes that modern DNA testing presents to the court system and lead the way in creating fitting policy that ensures all prisoners are able to access evidence to prove their innocence. It will argue that the protections afforded to individuals under the Constitution of the United States must be analyzed in light of modern society and its capabilities. Nothing is more fundamental to the Constitution than the protection of individual liberty so our system of jurisprudence must be flexible enough to incorporate scientific advances that will allow the Court to better safeguard this important right. Lastly, it will argue that for the following reasons, the most likely means of accomplishing the recognition of this right is through the substantive due process doctrine.
A Landman’s Work Is the Foundation for Accurately Determining Mineral Ownership Under Rights-Of-Way: So, How Should a Landman Search for Roadway Title?
Authors: Davis Rob
Published: January 2023

This Article addresses the many legal and practical issues a landman faces when researching title records to form a complete chain of title for roadways. Because the examining attorney reviews this chain of title to form an opinion, attorneys should understand the research process used by the landman. Further, many attorneys perform stand-up opinions from their own title research at the courthouse. Therefore, to determine whether a chain of title for a roadway is complete, the attorney must understand the title research process. Although the practical issues addressed in this Article apply more to professionals working in the urban area of the Barnett Shale play, the legal principles addressed here are equally applicable to landmen and attorneys working together in rural areas as well. Further, although the concepts discussed here may apply to several types of rights-ofway besides roads, this Article discusses these concepts in the context of roads only.
This Article examines the following subjects as practiced in Texas: a brief overview of the title examination process, the process of a "standard title search," and right-of-way mineral ownership law. Further, this Article analyzes each subject to suggest a legal standard, which the Texas courts have not yet articulated, for developing a chain of title that covers mineral ownership of roadways.
Mineral Royalty Mispayments: The Payor’s Rights, Obligations, and Risks in Royalty Mispayment Scenarios, Including the Pitfalls and Prerogative of Self-Help Recoupment
Authors: Hafer Douglas R. , Mathis Daniel B.
Published: January 2023

To aid in these efforts, this Article provides a survey of the legal doctrines and defenses commonly encountered in mineral royalty mispayment cases, including whether the payor is entitled to self-help recoupment of overpaid royalties. This Article is not a comprehensive study on all aspects of royalty mispayments, but instead provides a practical overview of the foundational legal theories underlying typical mispayment claims and defenses.
Severance v. Your Texas Public Beach
Authors: Pickett Ellis
Published: January 2023

Coastlines, like riverbanks, are dynamic. They continually move, usually imperceptibly, but in storm events they can move a great distance. This movement affects both private and public property rights.
The State owns "submerged lands," wherever they happen to be at the time.' In legal documents in Texas, terms such as "along the river" and "with the meanders of the river" describe property boundaries. The difference between Gulf of Mexico and riverfront property is gulf beaches are open to the public, whereas the sand along rivers is private property. There is no Open Beaches Act for rivers.
Owners of beachfront property acknowledge the fact that the shore moves at the whim of nature. It has long been established that the coastline is dynamic; therefore, only an easement that moves with the shore is workable.
A True Threat to First Amendment Rights: United States v. Turner and the True Threats Doctrine
Authors: Brown Casey
Published: January 2023

The Supreme Court has carved out several exceptions to what qualifies as protected speech under the First Amendment, including true threats and incitement. The majority rule in the circuit courts is that speech qualifies as a true threat if the speech would be interpreted by an objectively reasonable person as an intent to commit serious harm or injury. Most courts apply a true threats analysis to cases involving a charge under 18 U.S.C. § 115(a)(1)(B). Furthermore, most courts do not require that the speaker actually intend to carry out the threat in order to be convicted.
Although courts have generally treated the doctrines as separate, the Court in United States v. Turner agreed with the Government's argument that being charged with threatening federal judges under § 115 is essentially being charged with incitement. Therefore, this Note argues that the Turner Court should have applied the true threats doctrine as it was applied in the seminal Supreme Court case, Watts v. United States, in the relevant Second Circuit cases, United States v. Kelner and United States v. Malik, and in accordance with the statutory scheme established by other circuit court cases dealing with charges under § 115. This Note further analyzes how issues presented by the Turner case might have been resolved if the Second Circuit had applied the proper true threats analysis. Finally, this Note calls for reversal and remand of the Turner case by the Second Circuit Court of Appeals and for Supreme Court clarification of issues left unresolved by the circuit courts
Executive Summary
Authors: Warren Gina S.
Published: January 2023

2011 was a year full of Energy. One could not open a (virtual) newspaper without seeing an article or commentary on energy-related issues, such as the U.S. Supreme Court's decision in American Electric Power Co. v. Connecticut regarding greenhouse gas ("GHG") regulation, the future of renewable energy, and natural gas extraction via hydraulic fracturing, to list a few. GHG emissions, renewable energy development, and hydraulic fracturing have historically been left to the states to police; however, the Environmental Protection Agency ("EPA") is set to commence regulation of GHG emissions as early as May 2012 and is currently studying hydraulic fracturing and its potential impact on drinking water. Regardless of the EPA's activities, it will be interesting to see how states address these issues over the next year.
New Mexico
Authors: Larson Derek V. , Nair Sarita
Published: January 2023

The Ideal case developed existing New Mexico law concerning the "marketable condition rule." The New Mexico Supreme Court granted certiorari of an interlocutory appeal from the district court's class certification order because it was already considering a similar appeal of a companion case from the same district, Davis v. Devon Energy Corp. In Davis, the Supreme Court noted that "[t]he common pre-tailgate deduction issues and the 'marketable condition rule' continue to dominate the overall case." Following Davis, the Court concluded that certification was appropriate in Ideal.
New York
Authors: Holland Nate
Published: January 2023

The author summarizes the impacts of the case Jayne v. Talisman Energy USA, Inc. on lease ratifications.
Oklahoma
Authors: Christiansen Mark D.
Published: January 2023

PenSa further argued that operating agreements imposed on Bays, as operator, a duty of good faith and fair dealing, which Bays violated. The court first recognized that, under Oklahoma law, the common law "duty of good faith and fair dealing" does not extend to the contractual relationship created by an operating agreement. However, the operating agreements at issue in this case expressly provided that the parties were obligated to act in good faith in their dealings with each other with respect to the activities under those agreements. Since the duty of good faith between the parties in this suit arose from the provisions of the contracts, the court concluded that PenSa's cause of action was for breach of contract and not a tort claim. The court granted summary judgment against PenSa to the extent that it sought recovery in tort.
Texas
Authors: Kramer Bruce M.
Published: January 2023

With the renaissance of onshore oil and gas activity in the United States ranging from the Bakken Field in North Dakota and Montana; to the Marcellus Field underlying portions of Maryland, New York, Ohio, Pennsylvania, and West Virginia; to the Barnett and Eagle Ford Fields of north and south Texas respectively, it is not surprising that there is renewed oil- and gas-related litigation. The 2010-2011 term of the Texas Supreme Court was particularly active in deciding oil and gas cases or cases that have a direct impact on oil and gas operations. One has to look back to 1923, when the Texas Supreme Court issued several significant oil and gas decisions on the same day, to find a year in which more oil and gas decisions were handed down. This Article will explore those decisions, along with a single Fifth Circuit opinion, in an attempt to explain their impact on oil and gas jurisprudence.
Utah
Authors: MacDonald Frederick M.
Published: January 2023

The Utah judiciary is not known to often address cases affecting substantive oil and gas law. However, during the period from September 2010 through to August 2011, significant rulings were issued in three cases. No significant legislative or administrative oil and gas development occurred during that period.
Virginia
Authors: Kostrub Dan , Ranieri Dominique
Published: January 2023

This update covers the period from September 1, 2010, through August 31, 2011. During this time, Pamela Meade Sargent, United States Magistrate Judge for the United States District Court for the Western District of Virginia, Abingdon Division, addressed five cases concerning disputes over oil and gas leases and estate interest in coal bed methane ("CBM").
West Virginia
Authors: Graham Andrew , DeLancey Cole
Published: January 2023

This Article summarizes and discusses important cases, legislation, and regulations issued or enacted pertaining to the oil and gas jurisprudence of West Virginia between September 1, 2010, and August 31, 2011. The Authors acknowledge that the term "important" is subjec- tive; nevertheless, they endeavor to discuss the most germane cases and regulations affecting the oil and gas industry.
This Article is divided into two parts. Part One discusses a very important regulation promulgated by the Office of Oil and Gas, a division of the West Virginia Department of Environmental Protection, regarding water use by the oil and gas industry when drilling horizontal wells. Noticeably absent from this Part is any discussion of major legislation affecting the oil and gas industry. During the requisite period, no significant legislation was enacted, which the Authors subjectively deemed worthy of discussion. Nevertheless, the legislature introduced numerous bills, which if enacted, would have substantially impacted the oil and gas industry.
Part Two of this Article discusses developments in West Virginia's case law regarding oil and gas. In this Part, the Authors will discuss and analyze major decisions issued by the West Virginia Supreme Court of Appeals ("Supreme Court of Appeals"), one important case litigated in the Circuit Court of Monongalia County, West Virginia, and the United States District Courts for the Northern and Southern Districts of West Virginia.
Colorado
Authors: Whitmore Martha Phillips
Published: January 2023

In some respects, the year has been without significant new revisions to the oil and gas law in Colorado. This has been primarily a year of assimilation and implementation of laws and regulations passed in 2008, 2009, and early 2010. The following developments should be noted by those involved with Colorado oil and gas matters.
Intellectual Property Issues in E-Commerce
Authors: Hammond Herbert J. , Cohen Justin S.
Published: January 2023

Today's companies face an incredible array of intellectual property issues, particularly when conducting business online. Forrester Research expects U.S. e-commerce retail sales to grow by over 10% per year and reach $278.9 billion in 2015. As e-commerce business increases and utilizes new technologies, e-commerce companies are likely to see a surge in IP issues and litigation. This Article discusses several of the more significant IP issues that an e-commerce company is likely to encounter and provides several strategies for dealing with such issues.
Precedent, Humility, and Justice
Authors: Gentithes Michael
Published: January 2023

When resolving cases, appellate courts must quickly decide how much respect to give precedent decisions and the analytical approaches they embody. While the logical and philosophical justifications for reliance on precedent have been frequent topics in jurisprudential studies, this Article takes a unique perspective that will reinforce the role of precedent by emphasizing its necessary pride of place in any outcome that can be considered substantively just. Arguing against more decisionist models of adjudication and building upon prior pragmatic and Dworkinian justifications for the special role of precedent, this Article suggests first that appellate judges must approach their profession with humility to achieve substantively just results. After more fully defining the partially constitutive relationship between judicial humility and justice, the Article then contends that such humility necessarily implies respect for precedent. This respect for precedent has both a cross-generational dimension, in light of the refinement of the law over time, and a horizontal dimension, in light of the collegiality required for appellate judges to agreeably resolve the cases on their dockets. Precedent is therefore vital in all cases, even those decided on constitutional grounds. Such a humble, precedent-based approach to adjudication also has several implications for the process of appellate decision making.
The Oil and Gas Evolution: Learning from the Hydraulic Fracturing Experiences in North Dakota and West Virginia
Authors: Fershee Joshua P.
Published: January 2023

This Article will thus consider major differences and similarities in United States oil and gas extraction via hydraulic fracturing through a comparison of the experiences in North Dakota and West Virginia. Although there are other parts of the country experiencing growth in oil and gas extraction, Pennsylvania and Texas are two good examples, North Dakota and West Virginia are particularly apt for comparison. Both states have relatively small populations, meaning that the impact of large-scale energy extraction in each state is likely to have a large impact on the state, economically, environmentally, and socially. There are three main areas worth considering in this comparison.
In Part II, this Article will discuss the impact of the oil industry in North Dakota and the gas industry in West Virginia. Part II will also consider some of the financial, environmental, and social impacts of the hydraulic fracturing boom. Part III will then consider the legislative and regulatory landscape of both states and how each state's approach to enforcement and planning can and is likely to impact development in the state. Finally, this Article concludes that the North Dakota and West Virginia experiences can and should inform state and federal policy with regard to hydraulic fracturing and energy policy generally and provides some suggestions about how best to maximize the value of the lessons already learned.
Ohio's Experience with Preempting Local Regulation of Oil and Gas Development
Authors: Russell Gregory D. , Krummen Robert J.
Published: January 2023

This Article discusses the history and development of Ohio's oil and gas regulatory program. It also explores Ohio's efforts to preempt local regulation as well as recent municipal legal challenges thereto.
Gathering and Transporting Marcellus and Utica Shale Natural Gas to the Market and the Regulation of Midstream Pipeline Companies - The Case for a Uniform Federal and State Definition of "Gathering" in the Context of Economic and Siting Regulation
Authors: Krieger Kurt L.
Published: January 2023

Much has been written about the major natural gas reserves in the Marcellus and even Utica Shale formations located in West Virginia, Pennsylvania, and Ohio. But much of the focus has been on the law and regulation around producing the gas-drilling and getting it out of the ground. Related, but serving a very different function, is the role of pipeline companies in their various business models to transport that gas to market. This is a different and equally robust and growing segment of the natural gas industry where large amounts of shale exploration take place. In fact, without pipelines and regulatory certainty for those constructing pipelines, natural gas has no value as it cannot be transported to the market place in any practical manner without pipelines.
When planning to construct or acquire natural gas pipelines, a major question to consider is, "Will the pipelines be regulated?" For purposes of this Article, "regulated" refers to regulation of the siting and construction of pipeline facilities as well as economic regulation of the prices (or rates) charged and the terms and conditions (or tariffs) for services offered to customers (or shippers) transporting on those pipelines. Depending upon the physical configuration of the pipelines, the manner in which they are used to transport natural gas, and the type of customer transporting the gas on the pipeline, the correct answer could be (1) no regulation, (2) regulation by a state or commonwealth public service or utility commission, or (3) possible regulation by the Federal Energy Regulatory Commission ("FERC"). Moreo- ver, with respect to state or commonwealth regulation, as one might imagine, the extent of that regulation varies by state or commonwealth.
Moving Through the Rocky Legal Terrain to Find a "Safe" Royalty Clause or a "New" Market at the Well
Authors: Proctor Patricia , West J. Kevin , Neil Gregory P.
Published: January 2023

This Article will explore whether re-emergence of a market at the wellhead is legally viable considering judicial rulings related to the issue and specifically, whether such a development would be held to run afoul of the implied covenant to market. This Article will review the law of each state with potential for developing Marcellus and Utica Shale gas, while keeping in mind that some states have no law on the issue, again creating uncertainty because of the divergent rulings by other states' courts. Finally, this Article will discuss the merits of completely abandoning the "at the well" approach to valuation for purposes of royalty calculation in new leases as the preferred way of avoiding litigation over this issue.
Executive Summary
Authors: Warren Gina S.
Published: January 2023

This 2013 Survey on Oil & Gas provides an annual summary, bringing together the judicial, regulatory, and legislative activities of thirtyfour states. In addition to the typical court cases addressing lessee and lessor disputes, two apparent overarching themes have emerged this year. First is a heightened regulation of, and litigation regarding, hydraulic fracturing and its potential negative environmental impacts. At the forefront of these potentially negative environmental impacts are concerns for water quality and quantity, earthquakes, and increased air pollution emissions. Second, several states are reporting litigation over leases issued by the Bureau of Land Management, mostly claiming a failure to prepare (or a deficiency in preparing) environmental impact assessments.
Michigan Oil and Gas Update
Authors: Haines Michael C.
Published: January 2023

The lawsuits regarding the lease transaction cancellations, and the diverging rulings that have come out of the circuit courts' adjudication of those lawsuits, raise interesting questions of Michigan contract law in the context of oil and gas lease transactions. These questions include when does a binding contractual relationship arise between a prospective lessee and a prospective lessor; whether lessors are subject to an implied standard of reasonableness, an implied duty of good faith when inspecting and considering approval of title under the typical order for payment language, or both; if such a standard or duty is to be implied, how that standard or duty should be defined; and what kinds of title matters constitute valid bases for objection. How these questions are ultimately decided by Michigan's higher courts will surely have a significant impact on the structure of oil and gas leasing transactions in this state.
Missouri Oil and Gas Update
Authors: Ahmad Nadia B.
Published: January 2023

The State of Missouri has untapped potential for the development of oil and natural gas resources. While the Missouri courts were quiet this past year on interpreting oil and gas rules and regulations, the legislature was active in amending laws governing storage tanks. The state has experienced a tremendous upsurge in oil and gas production in the past two fiscal years. Missouri is poised to ramp up its conventional oil and gas production in the coming years, so increased legisla- tive actions and court activity will likely occur in the near future. Missouri's energy resources include coal bed methane, oil sand, and oil shale. Despite the limited supplies of traditional hydrocarbons, considerably large deposits of heavy oil exist, which are of interest to energy producers. According to the Missouri Department of Natural Resources, improving technologies along with efficient, environmentally responsible oil production, will result in increased economic benefit to the state in the form of jobs and revenue.
Mississippi Oil and Gas Update
Authors: Forester Marcial D.
Published: January 2023

In Douglas v. Denbury Onshore, LLC, the court of appeals of Mississippi held, in a matter of first impression, that an abandoned wellbore belongs to the mineral owners rather than the surface owners when the mineral and surface estates are severed.
North Carolina Oil and Gas Update
Authors: Joyce James L.
Published: January 2023

North Carolina is not traditionally thought of as an oil and gas state. However, recent geological research regarding shale gas deposits and the recent legalization of shale gas extraction technologies in North Carolina could change that. This Article examines recent legislative and scientific developments that may make North Carolina a viable destination for shale gas development.
Alabama Oil and Gas Update
Authors: Oldenburg Shannon , Holt Ted , Jackson Walton
Published: January 2023

The following cases are but two of many lawsuits filed by environmental groups challenging offshore oil and gas leasing, exploration, and development in the aftermath of the Deepwater Horizon drilling rig explosion and oil spill disaster in the Gulf of Mexico. The first case, filed in Alabama district court, involves agency approvals of lease sales that began shortly before and continued during and after the Deepwater Horizon incident, prior to concluding the environmental reviews of the specific impacts of the Deepwater Horizon spill. The second case, filed in the Eleventh Circuit, challenges a later phase agency approval of an exploration plan under similar circumstances.
New Jersey Oil and Gas Update
Authors: Weeks Brian
Published: January 2023

This Article discusses the proposed rules, focusing on provisions that may be the most important to NJ. It describes the geographic and cultural significance of the Delaware River Basin; relevant aspects of the natural gas development industry, including the practice of hydraulic fracturing ("hydrofracturing" or "fracking"); economic and environmental issues related to this industry; the DRBC and its regulatory scheme; the environmental concerns that the draft DRBC regulations are intended to address; and potential issues that the DRBC rules will not address at this time.
New Mexico Oil and Gas Update
Authors: Larson Derek V.
Published: January 2023

No opinions were issued by the New Mexico Supreme Court during the survey period relating to oil and gas law. However, on August 24, 2012, the New Mexico Supreme Court issued its opinions in Edwin Smith, L.L.C. v. Synergy Operating2 and ConocoPhillips Company v. Patrick H. Lyons, both of which involve oil and gas properties. The Lyons opinion touched on a number of significant oil and gas issues, including the implied duty to market and the marketable condition rule in New Mexico, but again declined to address the marketable condition rule as unnecessary given the statutory origin of the state lease forms at issue. Even more significantly, the New Mexico Supreme Court requested briefing on, but as of the date of this review has not yet ruled on, whether it will accept the case for reconsideration.
Arkansas Oil and Gas Update
Authors: Daily Thomas A.
Published: January 2023

Arkansas is without new legislation to note in this installment of the Survey. The Arkansas General Assembly meets bi-annually, in odd numbered years. Interim fiscal sessions were authorized and special sessions are possible, but the fiscal sessions resulted in no developments that need discussion.
However, the courts were active, requiring comment upon two decisions of the Arkansas Supreme Court and seven decisions of the Arkansas courts of appeals. Federal courts in Arkansas were busy as well. The Author will complete this discussion with four cases decided by the Eighth Circuit Court of Appeals, along with two United States District Court opinions.
Virginia Oil and Gas Update
Authors: Kostrub Dan , Ranieri Dominique
Published: January 2023

This Update covers the period from August 1, 2011, to July 31, 2012. During this time, the Virginia Legislature has amended and reenacted sections 55-154.2 and 45.1-181 of the Code of Virginia, relating to mineral right ownership and mine voids. During this same time period, Pamela Meade Sargent, United States Magistrate Judge for the United States District Court for the Western District of Virginia, Abingdon Division, addressed two cases regarding ownership of coalbed methane and the necessity to join coal owners as parties.