November 25, 2011
Thanksgiving & Black Friday
I hope all of our U.S. readers had a Happy Thanksgiving yesterday. As we've suggested before, Thanksgiving is in many senses the original American land use holiday, and itself derives from even more longstanding traditions of honoring the relationship between people, communities, and the land. Over the years since it became an official U.S. holiday, we still have the element of celebrating the harvest, but I would say it's evolved more into an event that revolves around that other significant land use element: the home.
If you're heading out shopping for the big sales today on "Black Friday" (the day many retailers go "in the black" financially), many of you might be confronted with some other aspects of modern American land use: sprawl, traffic, and the architecture of modern suburban development. Growing up, we spent Thanksgiving visiting relatives in the older, traditional New Jersey town in which my parents grew up, but which was adjacent to newer suburban development. Perhaps this weekend, you're experiencing what I often did: on Thursday, dinner at a relative's home in the older traditional neighborhood; then Friday, out to the suburban shopping malls and big-box parking lots. Looking back, I think I was subconsciously aware that there was a big difference. It just occurred to me that because of these two major activities--traditional family dinner, then shop-til-you-drop--the Thanksgiving holiday weekend might be about the sharpest contrast that many people experience with such different land use models.
I wonder how this sort of experience affects people--how it might impact the emotions that many people feel during the holidays when visiting relatives, and perhaps old homes since moved away from, or a walk around the old downtown; thinking about the old days, and talking about how their communities have changed. I wonder if a holiday spent experiencing the stark visual and spatial contrasts between the traditional neighborhood and suburban sprawl heightens these emotions. While much of the holiday experience centers around spending time with people, surely the visual and geographical elements of time and place certainly play a big role for many, even if not explicitly acknowledged. Ideas, memories, and feelings about the places in which we live and have lived must have an effect on the way people think about, and during, the holidays.
I hope that yours were and are mostly pleasant ones. We're thankful for the opportunity to blog here, and for everyone who reads and contributes in this land use blog community.
November 23, 2011
Wiseman & Gradijan on Regulation of Shale Gas Development
Hannah Wiseman (Tulsa, Florida State)--who did some terrific guest-blogging with us last year and is part of the crew over at the Environmental Law Prof Blog--and Francis Gradijan (JD, Texas) have posted Regulation of Shale Gas Development, a white paper from the Center for Global Energy, International Arbitration and Environmental Law, University of Texas School of Law. The abstract:
Development of oil and gas from shale and tight sands formations in the United States is rapidly expanding, enabled in part by slickwater hydraulic fracturing (also called fracing, fracking, or hydrofracking). This boom in unconventional production has introduced new concerns in communities around the country, raising questions about potential impacts to surface and underground water supplies and air quality, for example. Some policymakers and administrators have recently updated laws to address these concerns, while others have attempted to fit evolving technologies and practices within existing frameworks. This white paper, written for the Energy Institute at the University of Texas, explores the environmental laws and regulations that apply to most stages of the oil or gas development process in shales and tight sands, from conducting seismic testing to constructing a well pad, drilling, completing a hydraulic fracture treatment, and storing and disposing of waste. It briefly describes federal regulations, including recently-announced EPA regulatory efforts, but focuses primarily on the states, comparing regulations in sixteen states that apply to most stages of the well development process. The paper's comparison tables show that state regulations in some areas vary substantially, and the paper attempts to connect the potential risks of oil and gas development from shales and tight sands -- which are addressed in another Energy Institute paper by Professor Ian Duncan -- to the regulation. The paper concludes that states should consider modifying certain regulations to address these risks. Some states do not require specific types of blowout prevention, for example -- offering only a narrative standard -- yet well blowouts are an important concern. Furthermore, states should consider whether federal Department of Transportation regulations addressing the movement of fracturing chemicals adequately protect against spills, and whether state casing and cementing regulations protect well integrity during the drilling and fracturing process and into the future. States also must explore better options for disposing of large quantities of new wastes. Finally, the collection of more and better data, including information from baseline and post-production water testing, is essential. With states at the regulatory helm, comparison of public law strategies to address development risks can produce fruitful cross-jurisdictional lessons.
Timely and important.
Katz on the Regulative Function of Property Rights
Larrisa Katz (Queens U.) has posted The Regulative Function of Property Rights, 8 ECON J. Watch 236 (2011). By looking at analogous regulatory responses to private ownership, this brief essay provides a concise and unique comparison of the dominant models of property rights ("bundle of sticks" and exclusion a/k/a "stick") with her own model based on the owner's entitlement to set the agenda for a resource. Here's the abstract:
In this paper, I examine three different models of how we manage our common resources through a system of private property rights. One model (the exclusion approach) is to control owners’ decisions indirectly, through markets. Another model (the bundle-of-rights approach) is to regulate owners’ decisions directly, by setting out specifically what they can or cannot do. These first two models have in common their focus on the substantive decisions that owners make. There is a third approach that emerges from my own account of ownership as a position of exclusive agenda-setting authority. A distinguishing feature of this model is that it restricts the class of question that the owner may consider when dealing with the thing rather than the substantive answers that owners come up with.
November 21, 2011
Foster and Bonilla on the Social Function of Property
Sheila Foster (Fordham) and Daniel Bonilla have posted The Social Function of Property: A Comparative Law Perspective, 80 Fordham L. Rev. 101 (2011). Here's the abstract:
The classical liberal conception of property dominates the modern legal and political imagination. The idea that property is a subjective and nearly absolute right controls the way in which much of modern law and politics understand this institution. Despite its ubiquity in the modern legal and political consciousness, the classical liberal conception of property competes with, and is challenged by, other forms of imagining the institution. One of these alternative concepts, and perhaps one of the most suggestive and influential of the twentieth century, is the social function of property. This concept was articulated paradigmatically by the French jurist León Duguit in a set of six lectures given in Buenos Aires in 1911. According to this view, property has internal limits—not just external ones as in the case of the liberal right to property.
The concept of the social function of property has been incorporated by a significant number of European and Latin American legal systems and been instrumental in the political struggle that has occurred in some countries to achieve a fairer distribution of land. In Latin America, for example, the social function of property was included in several constitutions and has been instrumental in justifying the agrarian and urban reform projects developed in several countries in the region. In the United States, while no legal norm includes explicitly the words “social function of property,” some U.S. legal scholars consider that a “social obligation” norm does exist in U.S. law, albeit perhaps only at the margins of property jurisprudence. According to this norm, property owners have social responsibilities to others that extend beyond the highly individualized, and atomized, conventional account of property rights.
This essay is an introduction to a symposium held at Fordham School of Law in which an impressive group of scholars from the United States and Latin America convened to examine the contemporary interpretations and use of the social function of property in Latin America and its exclusion or marginal inclusion in the U.S. The symposium papers highlight and examine the interpretations of the social function of property articulated during the last two decades by some Latin American constitutional courts, as well as the symbolic and material effects that these readings have had in the region. As many of the papers published in this issue demonstrate, the social function of property has had interesting conceptual histories and applications in Latin America. The papers also scrutinize and analyze the concepts and institutions through which the social function of property has entered the U.S. legal system and explore why these concepts and institutions have had such a limited influence. Finally, the papers identify the tensions and connections that the social function of property has with relatively new legal concepts like the ecological function of property, and to explore its connections with various historical discourses and social structures in the U.S. and Latin America.