Tuesday, February 26, 2013
John Nolon has posted Towards Engaged Scholarship, an article that is the result of last year's symposium by the same name that he hosted at Pace, which was a follow-up to 2011's highly successful Practically Grounded conference. The meeting was really productive, and even though most of us were discussing engaged scholarship in land use and environmental law, the article has insights about the relationship between research, teaching, and practice that could be valuable to anyone in the field or law teaching generally.
The article is forthcoming. Here are the contributors: John R. Nolon (Pace); land use guest-blogger Michelle Bryan Mudd (Montana); Michael Burger (Roger Williams); Kim Diana Connolly (SUNY Buffalo); Nestor M. Davidson (Fordham); Matthew Festa (South Texas); Jill Gross (Pace); Lisa Heinzerling (Georgetown); Keith H. Hirokawa (Albany); Tim Iglesias (San Fransisco); Patrick C. McGinley (West Virginia); Sean Nolon (Vermont); Uma Outka (Kansas); co-blogger Jessica Owley (SUNY Buffalo); Kalyani Robbins (Akron); guest-blogger Jonathan D. Rosenbloom (Drake); and Christopher Serkin (Brooklyn). Here is the abstract:
The practice-oriented influences of the Carnegie Foundation’s Educating Lawyers and the report of the Clinical Legal Education Association, Best Practices for Legal Education, have been working on the academy for only five years; law teachers are just now learning how they can better prepare their students to practice law “effectively and responsibly in the contexts they are likely to encounter as new lawyers.” These reports have stimulated a vast literature on how law professors can improve their teaching methods, how law schools can alter their curricula, and how the legal academy as a whole can prioritize skills education.
Much less attention has been paid to the connection between legal scholarship and the practice of law. For many law professors, there is an intuitive link between their teaching and scholarship. Does that link apply to teaching law students to be more practice-oriented, and what precisely does that mean? Should our scholarship examine more regularly the problems that practitioners confront and the contexts in which they arise? This article addresses these pressing questions in the context of legal scholarship as a context and opportunity.
This article presents the reflections of sixteen law professors on linkages between scholarship and the legal profession. From these reflections, several themes are identified that lead to new perspective on legal scholarship in a time of dynamic change in the law school education. This article begins a dialogue on engaged scholarship and concludes with the some proposed directions for critical reflection on the roles of law professors as academics and as molders of the careers of their students.
The conference was great, both for the ideas that were shared and for the chance to discuss them with a group of both senior and junior scholars in our fields. I think the article will advance the discussion of how to make scholarship both theoretical but also practically useful.
Friday, February 22, 2013
Steven J. Eagle (George Mason) has posted "Economic Impact" in Regualtory Takings Law, forthcoming in the West-Northwest Journal of Environmental Law & Policy. The abstract:
In Penn Central Transportation Co. v. City of New York the Supreme Court stated that the existence of a regulatory taking would be determined through “essentially ad hoc, factual inquiries,” and that one of three factors of “particular significance” was the economic impact of the regulation on the claimant. This article examines the conceptual problem whereby the Fifth Amendment requires compensation for the taking of property and not a fraction of its owner’s worth. The fact that economic impact of stringent regulations is greater when parcels are smaller has led to a complex “parcel as a whole” test that conflates impact with another Penn Central test, owner’s expectations. Furthermore, application of the impact test to parcels held as investment property might vitiate the temporary taking. The Federal Circuit’s recent abandonment of its prior “return on equity” approach is emblematic of this problem.
Measuring the economic impact upon owners also is complex where government condemns part of an owner’s parcel, leading to difficulties in computing severance damages. Broad assertions that “offsetting benefits” conferred upon property owners by government actions reduce the impact of regulations also requires clarification.
The article concludes that unresolved issues and complexities in adjudicating the “economic impact of the regulation on the claimant” test provide an additional reason why the conceptually incoherent Penn Central doctrine must be replaced.
Thursday, February 21, 2013
Thousands of religious monuments have been donated to cities and towns. Under Pleasant Grove City v. Summum, local, state, and federal governments now have greater freedom to accept religious monuments, symbols, and objects donated to them for permanent display in public spaces without violating the Free Speech Clause. Now that governments may embrace religious monuments and symbols as their own speech, the obvious question arises whether governments violate the Establishment Clause by permanently displaying a religiously significant object.
Fearing an Establishment Clause violation, some governmental bodies have privatized religious objects and the land beneath them by selling or transferring the objects and land to private parties. Some transactions have included restrictive covenants that require the buyer to maintain the religious object or reversionary clauses that allow the government to reclaim the land. Others have sold or transferred the religious object without soliciting bids from other buyers.
This article provides an in-depth analysis of five cases in which governmental bodies resorted to privatizing public land to avoid violating the Establishment Clause. Drawing from Establishment Clause jurisprudence involving religious displays, this article utilizes the Lemon and Endorsement tests as analytical tools for resolving the constitutionality of land dispositions involving religious displays.
This article considers the purported secular government purposes for selling or transferring land to private parties. The government has sought to justify these land dispositions as a means to provide memorials that honor veterans or promote civic-mindedness, to preserve the religious object in order to avoid showing disrespect to religion, and to avoid violating the Establishment Clause. I argue that these purported government purposes are secondary to a religious interest because there are other alternatives to achieve the government’s purposes.
I also examine the effects of these land dispositions on the reasonable observer. The Herculean efforts exerted by the government to save the religious monument send a message of government endorsement of religion. Restrictive covenants that require the private owner to maintain the religious monument and reversionary clauses that allow the government to reclaim the monument and underlying land perpetuate state action and excessively entangle the government.
I conclude that the best measure to avoid the Establishment Clause is to simply remove the religious object. Removing the religious object will protect the dilution of sacred religious symbols through their secularization and will provide greater inclusiveness in public spaces for religious minorities and nonbelievers.
An original and helpful analysis of an issue that I think has been relatively neglected over the last couple of years, particularly since the Summum case came out-- the interplay between private land use rights and the religion clauses always tends to highlight some of the salient fault lines in many communities.
Every year, the ABA Forum of Affordable Housing and Community Development Law sponsors a student writing competition. The winner gets a $1000, plus an expenses-paid trip trip to DC in May for our Annual Meeting chock full of potential private and public-sector legal employers as well as a chance to publish the submitted piece in our Journal.
As Editor-in-Chief of the Journal of Affordable Housing and Community Development Law, I wanted to make sure you and your students already knew about the Student Writing Competition. Particularly if you know of a relevant student-written scholarly work (a note, a seminar paper or the like) that deserves consideration, encourage the student to submit the work to me at the email address below on or before Friday, March 8th.
Wednesday, February 20, 2013
Christopher Serkin (Brooklyn) has posted Affirmative Constitutional Commitments: The State's Obligations to Property Owners, Brigham-Kanner Property Rights Conference Journal, Forthcoming. The abstract:
This Essay, prepared for the 2012 Brigham-Kanner Property Rights Conference, argues that social obligation theories in property generate previously unrecognized obligations on the State. Leading property scholars, like Hanoch Dagan, Greg Alexander, and Eduardo Peñalver, have argued that the institution of property contains affirmative duties to the community as well as negative rights. This Essay argues that those affirmative duties are two-way streets, and that moral bases for social obligations also generate reciprocal obligations on the State to protect property owners. The social obligation theories rely upon a dynamic not static vision of property rights. The community’s needs change, the conditions of ownership change, and the appropriate allocation of benefits and burdens within a society changes over time. Therefore, a legal obligation that is justified and permissible at the time it is enacted because it is consistent with moral obligations may become impermissible over time, even if the content of the legal obligation does not change. At the extreme, the State’s failure to respond to certain kinds of changes in the world can lead to a regulatory taking.
An interesting and important take on some of the implications of progressive property theory. Especially interesting is Serkin's appreciation for the changing social notions of property over time, and how that challenges static notions of property rights and obligations.
John R. Nolon (Pace) has posted Shifting Paradigms Transform Environmental and Land Use Law: The Emergence of the Law of Sustainable Development, forthcoming in the Pace Environmental Law Review (2013). The abstract:
We began these two decades reacting to the market’s interest in developing greenfields and coastal property and end it wondering how to prepare more urbanized places for a growing population of smaller households who seek the amenities of urban living and some protection from the storms ahead. This essay discusses this and nine other fundamental paradigm shifts in environmental and economic conditions that are reshaping the law and changing the way state and local governments control land use and order human settlements.
Prof. Nolon has spearheaded the scholarly movement toward framing land use as an area of law that incorporates local government mechanisms and the imperatives of environmental regulation, which he has led into a broader conception of sustainability. This essay provides a great overview of how our communities depend on land use law.
Elizabeth Plummer (Texas Christian) has posted The Effects of Property Tax Protests on the Assessment Uniformity of Residential Properties, forthcoming in Real Estate Economics. The abstract:
This study examines whether the appeals process improves assessment uniformity for residential properties. The sample includes all single family residential properties in Harris County, Texas, for 2006-2008. I use a hedonic pricing model and Heckman’s two stage approach to explain the assessed values of all properties before and after the appeals adjustments. Full sample results suggest that the appeals process increased assessment uniformity and that the value adjustments were appropriate in amount. I also present results across properties of different values (low, medium, high). The first stage probit model provides evidence on the factors that affect the likelihood that an owner will protest.
I'm personally excited to see this study of real estate value effects in my own backyard, here in The Unzoned City.
Wednesday, February 13, 2013
James M. Anderson (RAND Corp.), John MacDonald (Penn--Criminology), Ricky Bluthenthal (Southern Cal--Medicine), and J. Scott Ashwood (RAND Corp.) have posted Reducing Crime by Shaping the Built Environment with Zoning: An Empirical Study of Los Angeles, 161 University of Pennsylvania Law Review 699 (2013). The abstract:
The idea of using law to change the built environment in ways that reduce opportunities to commit crimes has a long history. Unfortunately, this idea has received relatively little attention in the legal academy and only limited rigorous empirical scrutiny. In this Article, we review the considerable literature on the relationship between zoning, the built environment, and crime. We then report the results of two empirical studies on these relationships. First, we conducted a study of the effect of zoning on crime using 205 blocks selected in eight different relatively high crime neighborhoods in Los Angeles that have similar demographic character- istics but different forms of zoned land use. We find that mixed commercial- and residential-zoned areas are associated with lower crime than are commercial-only zoned areas. Second, we matched neighborhoods undergoing zoning changes between 2006 and 2010 with neighborhoods that underwent no zoning changes during this period but had similar preexisting crime trajectories between 1994 and 2005. The primary zoning change in these neighborhoods was to convert parcels to residential uses. We find that neighborhoods in which there was a zoning change experienced a significant decline in crime. Our results suggest that mixing residential-only zoning into commercial blocks may be a promising means of reducing crime.
Looks like a fascinating interdisciplinary collaboration.
The University of Missouri School of Law is hosting a Symposium on February 22, 2013, called Promoting Sustainable Energy through Tax Policy. Sponsored by the Journal of Environmental and Sustainability Law and the Missouri Tax Law Society, the event will be introduced by Mizzou profs Michelle Arnopol Cecil and our own guest blogger Troy Rule, and features panels with Alexandra Klass (Minnesota), Steve Gaw (The Wind Coalition), Felix Mormann (Miami), Roberta Mann (Oregon), Robert Peroni (Texas), with a keynote by David Weisbach (Chicago). Here's the info and link:
Renewable energy and sustainable development are valuable means of combatting climate change and of reducing the nation’s reliance on foreign energy sources. Recognizing the importance of sustainable energy, state and federal policymakers have employed aggressive tax incentive programs to stimulate unprecedented growth in wind energy, solar energy, biomass, green building, and related industries in recent years. Unfortunately, shortfalls in many state budgets and growing concerns about the national debt are now creating pressure for governments to extinguish these tax programs — a move that could bring progress in the nation’s fledgling sustainable energy sector to a grinding halt.
This year’s Journal of Environmental and Sustainability Law symposium is being sponsored jointly with the University of Missouri Tax Law Society. The symposium explores questions about the long-term role of tax policy as a tool for promoting renewable energy and sustainability in the United States.
Cost and Registration
The symposium is free and open to the public.
Registration is suggested by Friday, February 15.
To register, please contact:
Journal of Environmental and Sustainability Law
University of Missouri School of Law
12E Hulston Hall
Columbia, MO 65211
February 13, 2013 in Clean Energy, Climate, Conferences, Environmental Law, Environmentalism, Federal Government, Local Government, Oil & Gas, Politics, Scholarship, State Government, Wind Energy | Permalink | Comments (0) | TrackBack (0)
Friday, February 1, 2013
I am on the lookout for interesting scholarship that might make appropriate extra-credit reading for my Land Use Planning students. Just in time for the aesthetic regulation and First Amendment sections of the course, I found that Jim Smith (Georgia) has recently posted The Law of Yards, 33 Ecology. Q 203 (2006). Here's the abstract:
Property law regimes have a significant impact on the ability of individuals to engage in freedom of expression. Some property rules advance freedom of expression, and other rules retard freedom of expression. This Article examines the inhibiting effects on expression of public land use regulations. The focus is on two types of aesthetic regulations: (1) landscape regulations, including weed ordinances, that regulate yards; and (2) architectural regulations that regulate the exterior appearance of houses. Such regulations sometimes go too far in curtailing a homeowner's freedom of expression. Property owners' expressive conduct should be recognized as “symbolic speech” under the First Amendment. The Supreme Court developed the symbolic speech doctrine in contexts other than land use, but the rationale for the doctrine supports its extension to aesthetically based land use regulations. The clearest case of protected speech is a homeowner's conduct that conveys a political message, such as a yard display that protests a decision made by a local government. Other conduct, however, that is nonpolitical in nature can convey a particularized message, and thus can merit First Amendment protection. Examples are a homeowner's decision to plant natural landscaping, motivated by ecological concerns, or to install a nativity scene at Christmas. A regulation that restricts an owner's protected speech is unconstitutional unless the government proves both that the regulation is narrowly tailored and that it protects a substantial public interest. If the public interest is solely based on the protection of aesthetic values, ordinarily it is not substantial enough to justify the restriction on speech. The government must come up with a plausible justification other than aesthetics to prevail. When the justification consists of an interest in addition to aesthetics, the balancing rules developed by the Supreme Court for symbolic speech should apply. If the regulation restricts expressive conduct, it may survive scrutiny only if it protects the community from conduct that causes significant economic or other non-aesthetic harm, while minimizing infringement on expression.
Friday, January 25, 2013
A new article in Landscape and Urban Planning demonstrates that tourism can play a strong role in shaping landscape, indeed more so than local residents might realize. What I find interesting about the study is that it also shows conversion of land from agriculture to tourism resulting in an increase in economic benefit and ecosystem services. It may be hard to apply these findings outside of the Italian Island where the research was conducted, but the lessons about perceptions and planning models extend elsewhere.
Roberta Aretano, Irene Petrosillo, Nicola Zaccarelli, Teodoro Semeraro, Giovanni Zurlini, People Perception of Landscape Change Effects on Ecosystem Services in Small Mediterranean Islands: A Combination of Subjective and Objective Assessments, 112 Landscape and Urban Planning 63 (2013).
ABSTRACT: Humans constantly modify their environment to better fit their needs. These changes are even more important in small Mediterranean islands, where the flow and type of ecosystem services (ES) is constrained by insularity and heavily exploited by economic activities. We evaluated the dynamics of ES from 1954 to 2007 linked to the changes of the landscape of the Vulcano Island (southern Italy) and related such transformation to the perception of the local communities. We estimated the changes in the total economic value of ES and we coupled this objective assessment with a survey among inhabitants to measure the perception of driving forces and ES. The results show that agriculture was replaced by tourism, which simultaneously has profoundly affected the landscape and brought economic benefits to local population. Despite the urban-sprawl related to tourism development there is an increase of the flow of ES over time because of the conversion of some land-cover classes into others that provide a greater amount of ES. Local communities are aware of landscape and ES dynamics, but they do not perceive tourism as a driving force, which affects the natural attractiveness and cultural identity of their island. This approach integrates a commonly accepted objective technique to assign value to ES, with a subjective assessment taking into account how local people value the flow of ES. Effective strategies for ES management and governance need to address and incorporate local population expectations so to empower local stakeholders in the achievement of higher level of quality of life.
Wednesday, January 23, 2013
The Association for Law, Property, and Society (ALPS) has quicky become THE place to be each year for the leading conference on property, land use, and real estate, as well as environmental law and local government. Hari Osofsky has posted the Call for Papers for this year's 4th Annual Meeting in Minneapolis in April.
The ALPS 4th Annual Meeting, http://www.alps.syr.edu/meetingsandconferences.aspx, will be
held at University of Minnesota Law School, April 26-27, 2013. Our annual meetings attract
over 100 participants, approximately one third of whom come from outside of North America and
a number of whom do interdisciplinary work.
Registration and paper/panel submission is available through the conference website or directly at
http://www.regonline.com/Register/Checkin.aspx?EventID=1158517. The deadline for
submitting papers and panels is March 1, 2013, but registration for the conference will continue
to be available after that date. Please do not submit papers and panels after March 1, 2013 as part
of your registration without having emailed Hari Osofsky, firstname.lastname@example.org for permission to
submit late. We will do our best to accommodate late submission requests, but can only
guarantee that proposals submitted by the March 1, 2013 deadline will be able to be considered
for the conference.
This year’s registration includes an option to register to attend without presenting and an option
to submit complete panels in addition to individual papers. As in previous years, we will have
both draft paper panels and early works-in-progress panels dedicated to brainstorming scholarship
at its beginning stages. We also plan to support early-career scholars in their development and in
connecting to mentors through the conference events. A discounted early registration rate of
$145 is available until March 1, 2013; after that date, the registration rate is $175.
We welcome papers on any subject related to property law and from a diversity of viewpoints.
Property related topics areas can include but are not limited to:
· Civil Rights & Inequality (including Race, Gender, Religion, Income, Disability,
etc)/Critical Legal Studies
· Economics and Property Law
· Energy/Environment/Climate Change
· History of Property
· Housing/Urban Development/Mortgages and Foreclosure
· Indian Law/Indigenous Rights Law
· Intellectual Property
· International Property Law/Human Rights and Property/Cultural Property
· Land Use Planning/Real Estate/Entrepreneurship
· Property and Personhood/Concept of Home
· Property Theory
· Takings and Eminent Domain
· Teaching Property
The ALPS 4th Annual Meeting has been planned to immediately follow a conference on Legal
and Policy Pathways for Energy Innovation on April 24 and 25, 2013,
http://www.lawvalue.umn.edu/newsevents/conferences/lppei/home.html, sponsored by the
University of Minnesota’s Consortium on Law and Values in Health, Environment & the Life
Sciences. That conference also is currently accepting paper and panel proposals and offers
discounted registration to ALPS conference participants.
We look forward to welcoming you to Minnesota!
ALPS really is the place to be for any scholar connected with property and land use. On behalf of the membership & outreach committee, we hope to see all of you there!
Tuesday, January 22, 2013
NDLS colleague and super-mom Nicole Stelle Garnett (Notre Dame) has recently posted Redeeming Transect Zoning?, 78 Brook. L. Rev. ____ (forthcoming). In it, she continues the skeptical evaluation of New Urbanists as successors to Jane Jacobs' response to bad planning that she set out in her book Ordering the City (2010). This brief article takes a look at actual form-based zoning code reforms gaining currency in U.S. localities. Here's the abstract:
Thanks to the growing influence of the new urbanists, transect zoning” is becoming the zoning reform du jour. This alternative to zoning traces its origins to architect Andrés Duany’s 2003 SmartCode, which proceeds upon the assumption that urban development naturally proceeds from more-dense areas to less-dense ones. Duany calls this progression the “transect” and urges cities to replace traditional use zoning with regulations on building form appropriate to the various “transect zones” along the progression. Over the last decade, increasing numbers of jurisdictions (large and small) have adopted “transect zoning” laws and the “form-based” codes that accompany and supplement them. Theoretically, transect zoning embraces a relatively simple conception of how to regulate urban development: buildings that are appropriate for the city center should go in the city center (regardless of their use), and suburban buildings should look suburban (again, regardless of their use). In its implementation, however, transect zoning is anything but simple. As a practical matter, the new urbanists favor meticulous and exhaustive aesthetic regulations, found in the form-based codes that represent the ubiquitous gap-fillers in transect-zoning regimes. This Essay begins by briefly describing the rapidly evolving phenomenon of transect zoning and its companion, form-based coding. It then discusses four concerns raised by the current uses of both devices as public land-use-regulatory devices. The Essay concludes by suggesting that form-based codes may be most appropriate in situations approximating the private-development context rather than as a public regulatory.
Wednesday, January 16, 2013
I just received in the mail yesterday a copy of the first issue of Vol. 101 of the Kentucky Law Journal. It features a great new article by former LUP guest blogger Adam MacLeod (Faulkner). Adam is a Visiting Fellow in the James Madison Program in American Ideals and Insitutions at Princeton for the current academic year. Adam's article is entited "Identifying Values in Land Use Regulation". Here's a selection from the abstract:
The rules governing the lawfulness of land use decisions are a mess. State enabling acts elide distinguishable and plural objectives of the police powers. Courts—especially state courts—generally fail to distinguish between different types of challenges and different types of land use regulatory actions. As a result, courts typically resort to the deferential position that the Supreme Court adopted in Village of Euclid, Ohio v. Ambler Realty Co., even where that standard of review is wholly inappropriate.
Meanwhile, the evidence is mounting that local governments often exercise their land use regulatory authority in arbitrary, irrational, and discriminatory ways. Without meaningful judicial oversight, parties are powerless to challenge these abuses. Meaningful judicial oversight would require some comprehensive account of the police powers, and particularly which regulatory objectives are permissible in which circumstances. No comprehensive account has emerged. Courts are understandably unwilling to scrutinize the regulatory objectives of local governments. And scholars remain trapped in zero-sum warfare between individual property rights and the collective interests served by political action.
This article offers a proposal to clarify the picture. The proposal is drawn from recent insights in perfectionist jurisprudence, and seeks to ground land use governance in rational objectives, while avoiding the false individualist-collectivist dichotomy. The proposal rests upon the perfectionist claim that there exist some basic human goods in which people participate communally, for the benefit of all, and that rights can and should be derived from these goods. States would do well to identify the connections between the police powers and these goods, and to require local governments to act rationally by preserving the conditions in which these common goods are realized by members of the community.
I am very excited about Adam's neo-Aristotelian project here. I am developing a piece on Catholic Social Teaching's insights about the parameters of a just economic order. Trying to move beyond the narrow redistribution controveries, I am interested in CST's ramifications for those aspects of immigration, education finance and land use law that create such strongly exclusive communities in supposedly free market societies.
Tuesday, January 1, 2013
Christopher J. Tyson (LSU) has posted Localism and Involuntary Annexation: Reconsidering
Approaches to New Regionalism, published in the Tulane Law Review, Vol. 87 (2012). The abstract:
"Involuntary" annexation - the ability of cities to expand their territory unilaterally by extending their boundaries - is one of the most controversial devices in land use law. It is under attack in virtually every state where it exists. Involuntary annexation is a direct threat to "localism," the belief in small,
autonomous units of government as the optimum forum for expressing democratic freedom, fostering community, and organizing local government. Localism has been justifiably faulted with spurring metropolitan fragmentation and the attendant challenges it creates for regional governance. This critique is at the center of "New Regionalism," a movement of scholars and policy makers focused on promoting regional governance structures that respect the cultural draw of localism while correcting for its deficiencies. New Regionalism emphasizes bottom-up, voluntary governance structures and dismisses approaches like involuntary annexation as politically infeasible. Both types of approaches face considerable political challenges, but there are arguably more examples of well-functioning involuntary annexation regimes than there are successful models of New Regionalism. While involuntary annexation has been critical to the success of metropolitan regions in Texas and North Carolina, many regard it as a violation of the liberty and freedom that comes with property rights. Property rights are rooted in instinctive and culturally reinforced notions of personal identity and the inviolability of ownership. Localism extends this logic to municipal identity. The hostility toward involuntary annexation, therefore, can be understood as a response to the taking of a person's perceived right to express individual identity, group identity, status, and ownership through municipal identity. This notion of municipal identity as property threatens to undermine both existing involuntary annexation regimes as well as future New Regionalist proposals. While New Regionalism has well-reasoned justifications for focusing on more-voluntary, bottom-up governance structures, involuntary annexation remains a potent tool for facilitating regional governance and is worthy of defense and preservation.
Robin Kundis Craig (Utah) has posted Treating Offshore Submerged Lands as Public Lands: An Historical Perspective, forthcoming in Public Land & Resources Review (2013). The abstract:
When President Harry Truman proclaimed federal control over the United States’s continental shelf in 1945, he did so primarily to secure the energy resources — oil and gas — embedded in those submerged lands. Nevertheless, the mineral wealth of the continental shelf spurred two critical legal battles over their control and disposition: First, whether the federal government had any interest in the first three miles of continental shelf; and second, if so, whether the federal government had authority to regulate the continental shelf under traditional federal public land laws, such as the Minerals Leasing Act. Congress’s reactions to federal courts’ resolutions of these questions, embodied in 1953 in the Submerged Lands Act and the Outer Continental Shelf Lands Act, continue to provide the foundations for state and federal management of the nation’s continental shelf and its energy resources.
Nevertheless, the Outer Continental Shelf’s status as federal public lands remains ambiguous. This
Article takes an historical approach to assessing that issue, reviewing the traditional definition of federal “public lands” and the historical context of the public lands issues that arose for the Outer Continental Shelf. It concludes that the Outer Continental Shelf, from a natural resources perspective, qualifies as the newest of the federal public lands, but it also acknowledges that — unlike for many other public lands — federal statutes repeatedly and consistently exclude the states from gaining ownership of those submerged lands.
Friday, November 23, 2012
Tony Arnold (Louisville) sends word that he has co-authored a chapter with Lance Gunderson (Emory--Environmental Studies) called Adaptive Law, forthcoming in the book Resilience and Law, Craig R. Allen & Ahjond S. Garmestani, eds., Columbia University Press, 2013. The abstract:
This book chapter proposes a bold sweeping set of characteristics of "adaptive law": features of the legal system that promote the resilience and adaptive capacity of both social systems and ecosystems. Law, particularly U.S. law, has been characterized as ill-suited to management of natural resources and the environment for resilience and sustainability. The maladaptive features of U.S. law include narrow systemic goals, mononcentric, unimodal, and fragmented structure, inflexible methods, and rational, linear, legal-centralist processes. This book chapter proposes four fundamental features of an adaptive legal system: 1) multiplicty of articulated goals; 2) polycentric, multimodal, and integrationist structure; 3) adaptive methods based on standards, flexibility, discretion, and regard for context; and 4) iterative legal-pluralist proceses with feedback loops and accountability. It then discusses these four features in the context of several socio-ecological issues and identifies needs for future study and development of adaptive law, particularly in light of panarchy theory about how complex, adaptive, interconnected systems change over time.
As many land use lawyers already know, Prof. Arnold is one of the leading scholars in establishing the emerging area of adaptive law; this collaboration with Prof. Gunderson looks to be a very helpful starting point for comparing ecosystems and social systems with respect to adaptation to changing circumstances.
Saturday, November 17, 2012
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.
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
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!
Thursday, November 15, 2012
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.