Saturday, November 17, 2012

Adler on Merrill on "Fear of Fracking"

Yesterday, Case Western Reserve University School of Law hosted a symposium called The Law and Policy of Hydraulic Fracturing: Addressing the Issues of the Natural Gas Boom.  As Steve noted on Property Prof, Professor Thomas Merrill (Columbia) was slated to give the keynote.  Case Western's Jonathan Adler was part of the event, and he posted an extensive commentary on Merrill's remarks over on the Volokh Conspiracy.  Looks like it was a fascinating talk with lots of observations on how to deal with the potential environmental impacts of fracking, and a perhaps counterintuitive suggestion on the possible upside of the gas boom with respect to climate change.  But here, I'll focus on some of Merrill's observations on why fracking developed in the U.S., because it may have a lot to do with property law and land use regulation.  As Adler describes:

Why did fracking arise in the United States? Contrary to some analysts, Professor Merrill does not believe it is attributable to federally funded research and development. . . .

Professor Merrill also doubts industry structure has much to do with fracking’s rise either. . . .

A more likely factor is the way U.S. law treats subsurface rights. The U.S. is something of an outlier in that subsurface minerals are the property of the landowner, and not the government. This results in decentralized ownership and control over subsurface rights facilitates experimentation and innovation in figuring out how to exploit and manage subsurface resources.

Further decentralization, and experimentation, results from the federalist regulatory structure. Different states have different regulatory approaches than others, creating opportunities for further innovation and the opportunity for jurisdictions to learn from one another. The existence of a few jurisdictions that will allow a new technology to be tried provides a laboratory from which others may learn, whereas under a more centralized regulatory structure such innovation is unlikely to get off the ground.

The existence of a relatively open infrastructure network – a pipeline system that is subject to common-carrier rules – also plays a role in facilitating entry into the market. These factors have a common theme: decentralization. Taken together, Merrill suggests, they are the most likely source of fracking’s rise in the United States.

Looks like another fascinating event, with participation from a number of land use, environmental, and energy scholars on the subsequent panels.  I look forward to the symposium isse in the Case Western Law Review. 

Matt Festa

November 17, 2012 in Clean Energy, Climate, Comparative Land Use, Conferences, Environmental Law, Environmentalism, Federal Government, Lectures, Oil & Gas, Property, Property Rights, Scholarship, Water | Permalink | Comments (2) | TrackBack (0)

Friday, November 16, 2012

The Quiet Revolution Symposium Issue--John Marshall Law Review

Last year we blogged about the then-upcoming Kratovil Conference on the 40th Anniversary of The Quiet Revolution in Land Use Control, the seminal 1971 book by Fred Bosselman and David Callies.  The conference was hosted by the Center for Real Estate Law and Practice at The John Marshall Law School in Chicago, and the Symposium Issue has just come out in the John Marshall Law Review.  The Conference blurb:

In 1971, the President's Council on Environmental Quality published The Quiet Revolution in Land Use Control. The book described in detail the innovative land use laws in nine states which returned the control of land use to a state or regional level, largely at the expense of local zoning.  This constituted the "quiet revolution."  The Kratovil Quiet Revolution Conference [brought] together national scholars and experts in land use to analyze the lasting impact of The Quiet Revolution in several jurisdictions around the country and examine the future of land use policy.

We've posted some of the individual articles as they came out on SSRN, but just last week I received the hard copy symposium issue in the mail.  As you can see from the program, this excellent issue includes a foreword by Celeste Hammond, center director, and pieces by leading land use experts Bosselman, Callies, Patricia Salkin, Daniel Mandelker, Edward J. Sullivan, Nancy Stroud, and John S. Banta. 

The whole issue is worth getting a hold of if you haven't already.  But wait, there's more!  Prof. Hammond notes in her cover letter that the entire conference is now available to watch on video!  Here's a link to the conference page with videos on the Center's website.  Check it out if you couldn't be there and are looking for a great excuse for end-of-semester procrastination!

Matt Festa

November 16, 2012 in Chicago, Conferences, History, Local Government, Scholarship, State Government, Zoning | Permalink | Comments (0) | TrackBack (0)

Thursday, November 15, 2012

Ghent on the Historical Origins of America's Mortgage Laws

Andra C. Ghent (Arizona State--Finance) has posted The Historical Origins of America's Mortgage Laws.  This paper would be a really good resource for students, teachers, or practitioners who are interested in a concise but explanatory introduction to the development of state mortgage laws, including mortgage theory, foreclosure, and other important topics.  The paper is a report for the Research Institute for Housing America.  The abstract:

This paper examines the different legal frameworks for mortgage markets in different states, focusing on how and when they came into existence, including the British influence on laws in some of the older states, with a particular emphasis on foreclosures, including judicial vs. non-judicial regimes, redemption rights and deficiency judgments. The paper concludes that mortgage laws in America are a patchwork driven by path dependence, rather than a coordinated effort or a reaction to some economic event or condition.

Matt Festa

November 15, 2012 in History, Housing, Mortgage Crisis, Mortgages, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Rosenbloom on Defining Nature as a Common Pool Resource

Jonathan D. Rosenbloom (Drake), our sometime guest-blogger, has posted his latest piece, Defining Nature as a Common Pool Resource, which will be a chapter in Environmental Law and Contrasting Ideas of Nature: A Constructivist Approach (ed. Keith H. Hirokawa) (2013, Forthcoming).  The abstract:

One of the many ways in which we attempt to understand our relationship with nature is to define it as a “common pool resource.” This definition incorporates several legal, behavioral, and ecological concepts that seek to capture the intricate and complex place where nature and the governance of nature collide. Once we apply the common pool resource definition to nature, we commit – for better or for worse – to accepting the pre-existing framework in which it operates. This chapter seeks to identify the commitments embodied in the common pool resource framework as it applies to nature. It is an attempt to establish a foundation for forthcoming research on how these commitments influence management of natural resources and whether the commitments are consistent with our idea of nature. The chapter begins with a short background on common pool resources and the understanding of theme in the legal literature. The chapter then turns to five conceptual commitments we make by labeling nature as a common pool resource. The goal of this chapter is to explore the intended and unintended consequences of using the common pool resource definition; and question whether it is a beneficial mechanism for understanding and sustainably managing nature.

Matt Festa

November 15, 2012 in Environmental Law, Property, Property Rights, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 13, 2012

Professors' Corner--Title Insurance and Services

Tanya Marsh has the details for this month's teleconference at Property Prof.  As many of you know, the ABA Section on Real Property, Trust, & Estate Law has been hosting free teleconferences featuring law professors' discussions of recent cases and hot topics in the field.  This month's "Professors' Corner" will focus on recent developments in title insurance and title services.  Here is the info:

Wednesday, November 14, 2012
12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a..m. Pacific)
Call-in number: 866-646-6488
Passcode: 5577419753

Tanya will moderate the discussion featuring Professors Joyce Palomar (Oklahoma), Barlow Burke (American), and Eileen Roberts (William Mitchell).  Check it out if you are able.  Some of us Land Users have had the opportunity to participate in past months' calls, and it's a great way to stay up to date.

Matt Festa

November 13, 2012 in Caselaw, Conferences, Property, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)