Wednesday, February 22, 2012
A Michigan appellate court has ordered the owner to tear down what looks to be a fairly elaborate and presumably expensive home, because it is only 80 feet from the neighboring property, instead of the 100 feet required in the deed restrictions. Talk about strict enforcement! But as the neighbors say in the video, rules are rules.
The news story is here at msnbc.com. Might be an interesting clip to show for servitudes, land use, or real estate transactions. Thanks to Helen Jenkins for the pointer.
Wednesday, January 18, 2012
Last fall we posted about the Econ Journal Watch Symposium "Property: A Bundle of Rights?," with contributions from a number of leading scholars. Just recently, Robert Ellickson's contribution was posted on SSRN, and it's worth a highlight: Two Cheers for the Bundle-of-Sticks Metaphor, Three Cheers for Merrill and Smith, Econ Journal Watch, Vol. 8, No. 3, p. 215, September 2011. The abstract:
Viewing property rights as a “bundle of sticks” can be descriptively clarifying because the law commonly entitles an owner of a particular resource to split up entitlements in it. Nonetheless, Thomas Merrill and Henry Smith, the most prominent critics of the metaphor, assert that this conception both ignores the existence of various legal constraints on the decomposition of property rights, and also encourages lawmakers to support the excessive splintering of entitlements. These concerns are well-grounded. More controversial are Merrill and Smith’s inclinations to equate private property with property generally, to deny that human capital can be characterized as property, and to assert that affirmative duties never attach to property ownership.
All of the essays from the Bundle Symposium are very, very interesting. We've previously mentioned the ones by Larissa Katz and Stephen Munzer. As many of us begin the Property course this spring semester, it's incredibly helpful to read all of these fresh insights and thoughtful debates that make the classic metaphor still relevant.
Tuesday, January 17, 2012
From Michael Allan Wolf comes the sad news that Charles M. Haar has passed away. Haar, the Louis D. Brandeis Professor Emeritus at Harvard Law School, was one of the true giants of legal scholarship and teaching in the fields of land use and local government. From the Harvard tribute:
Professor Emeritus Charles M. Haar ‘48, a pioneer in land-use law whose scholarship focused on laws and institutions of city planning, urban development and environmental issues, died on January 10, 2012. He was 91.
During his more than five-decade career, Haar influenced urban policy and planning throughout the country, drafted key legislation for inner city revitalization, developed influential legal theories to support equality of services for urban dwellers and access to suburbs, helped pioneer the modern environmental movement, and mentored a generation of scholars and activists.
“Charles Haar was a genuine pioneer who created new ways of making scholarship relevant to the improvement of the human condition through the improvement of the environment,” observed Harvard Law School Dean Martha Minow. “He was a visionary leader in the field of land use law and urban planning with a focus on improving the lives of all Americans, regardless of race or economic status. His legacy includes major tenets of the modern-day environmental movement and the way we teach and study environmental law. It also includes the generations of students to whom he was a mentor and friend, and the contributions they made after learning from him. He will be deeply missed.”
Please read the whole thing for a full appreciation of Professor Haar's amazing contributions to teaching, scholarship, and service. He served the legal profession and the nation in numerous ways, from his WWII military service, to extensive participation in professional organizations, to service to presidential administrations and legislation-drafting. His scholarship has been incredibly influential. I am currently in the middle of reading his 1990 book Zoning and the American Dream: Promises Still to Keep (with Jerold S. Kayden) which is just one of his many important books, casebooks, and treatises. Testimony from his students and colleagues, such as Prof. Wolf, speaks to his deep humanity and profound influence as a teacher and mentor.
We are all in a great debt to Charles M. Haar as one of the pioneers of land use law in scholarship and practice. Professor Haar was instrumental in creating the field that we now know as land use law. "Land Use" has strong doctrinal and practical ties to property law, state & local government law, environmental law, and other fields; but it has only been because of the work of Professor Haar and his colleagues and students that Land Use Law has been recognized as its own separate field of study and practice in law, and as an important part of our society. May we all be inspired to serve by the example of Charles M. Haar.
Friday, December 16, 2011
Stephen R. Munzer (UCLA) has posted A Bundle Theorist Holds On to His Collection of Sticks, Econ Journal Watch, Vol. 8, No. 3, pp. 265-73, September 2011. The abstract:
For nearly a century, most persons who have studied or written about property have conceived of it as a bundle of rights or, colloquially, as a bundle of sticks. In the mid 1990s, several philosophically minded academic lawyers questioned whether property should be thought of as a bundle at all. The impact of their work is reflected in Merrill and Smith (2007), a highly regarded and intellectually challenging casebook used in many U.S. law schools. Merrill and Smith emphasize that property is centrally a right to exclude and is generally held in rem, that is, is good against all the world. They find bundle theories of property defective for various reasons. This essay argues to the contrary. There are solid grounds for holding on to at least some bundle theories, which facilitate the careful analysis of the complexity of property. Moreover, Merrill and Smith’s criticisms are often misguided or ineffective. Lastly, their account gives an overly simple picture of property and views property law as a more unified subject than it actually is.
I haven't developed my own position on whether the bundle theory is the most accurate philosophical account of property, but I use the heck out of it in teaching. I've found that having the class think of property as a bundle of rights that can be arranged in different ways, and then extrapolating that concept over topics such as estates, future interests, co-ownership, and servitudes really helps students wrap their heads around these otherwise esoteric subjects, and provides a good framework for understanding property. I'm glad to see this short philosophical essay by Munzer to assure me that at least I'm not horribly behind the times in teaching about sticks.
Wednesday, November 30, 2011
This book is a fantastic resource for anyone who has to take or give a law school exam: Open Book: Succeeding on Exams from the First Day of Law School, by Barry Friedman (NYU) and John Goldberg (Harvard). This book isn't land-use specific, but should be of general interest to all law students and teachers. I would say that practitioners will find it quite valuable, because one of the central points of the authors is that law school exams are (despite popular belief) highly relevant to what lawyers actually do in practice: issue-spotting, identifying the appropriate rule, and applying it to the facts to reach a conclusion. The blurb:
Wolters Kluwer Law and Business is known for its essential guides for law school success. Now Open Book: Succeeding on Exams from the First Day of Law School offers today’s law students more than simple exam preparation. The authors, both award-winning teachers with a wealth of classroom experience, reveal what professors really look for in exam answers. By linking exam-taking to the actual practice of law, they explain what it means to “think like a lawyer” in an exam setting, and how to get the most out of classes. Open Book also showcases a distinctive central pedagogy, “the pinball method of exam-taking,” and provides detailed examples and a wealth of concrete exam-taking techniques. Initial reviewers―including professors teaching core 1L classes, writing instructors and law school administrators―have been unanimous and enthusiastic in their praise. Numerous student reviewers have likewise remarked that it changed their study habits and their entire outlook on law school. With straightforward prose, memorable, and often humorous illustrations, and a unique insider’s perspective, Open Book: Succeeding on Exams from the First Day of Law School opens a clear path to law school success.
I'm proud to be part of the "Open Book Team" of professors who have contributed materials to the accompanying website. The other two property professors are Jim Smith and Eduardo Penalver, so I'm very honored to be in such august company. I was flattered to be asked to contribute by the authors, Profs. Friedman and Goldberg, who were both extremely popular law professors at Vanderbilt when I was a student there. But more than that, when I read the manuscript, I felt like it encapsulated so many of the thoughts that I've had about law school exams as a student, as a practitioner, and as a relatively junior professor. I really do think that it's a fantastic resource for both students and teachers for thinking about law school exams and how they relate to legal practice.
I'm guest-bloggging this week at the Open Book Blog. My first post is about my conviction that A Law School Exam is a Legal Writing Event. The more time I spend in this profession, the more convinced I am that good communication through writing is the coin of the realm. This is also related to the thinking behind my recent paper on Academic Research and Writing as Best Practices in a 'Practically Grounded' Land Use Course.
I sincerely think that this book does a great deal of work towards explaining why law school is relevant to practice, and why all lawyers need to be proficient written communicators--and this especially applies to land use lawyers, because of the individualized, multidisciplinary, and practical nature of our field.
Tuesday, November 1, 2011
A guest post from Prof. James L. Olmsted:
Dear Land Use and Zoning Colleagues:
I am writing to inform you about an article that I know many of you will find useful, entitled "Handling the Land Use Case: A User's Manual for the Public Interest Attorney." Although, the article was published in 2004, its subject matter is of current interest in that it provides a nuts and bolts guide for new land use and zoning attorneys to develop a land use practice. As the article is written for new attorneys, it will also be of great interest to your students who are interested in pursuing careers in this field. The article will likewise be fascinating to experienced practitioners and academics as the article candidly and comprehensively reveals the tactics that are invariably deployed, both openly and secretively, by both sides in any major land use battle. Few, if any, other articles expose this under-belly of the land use process in such detail. If anyone can help make this article available to colleagues or land use and zoning oriented law students by directing them to my SSRN site I would greatly appreciate it. Also, I invite anyone who would like to co-author an update of the article to contact me at www.landprotect.com. This would be an interesting and most worthwhile project, and I can guarantee publication in a law review (e.g., I am certain that the Journal of Environmental Law & Litigation would love a chance to update this article). Also, if anyone would like to co-edit a book with me on the subject of land use planning and zoning in the 21st century, I would also be most interested in such an offer. My preferred publisher would be Island Press, and I would do the leg work of drafting the publication proposal. On my SSRN site “Handling the Land Use Case” can be downloaded for free.
Best regards, James L. Olmsted, Adjunct Faculty University of Oregon School of Law.
We welcome guest posts from land use professors and practitioners - our contact info is available in the bar on the left side of this page.
Jamie Baker Roskie
Friday, October 7, 2011
I just got a review copy of Stewart Sterk and Eduwardo Penalver's casebook, Land Use Regulation. I don't normally use a casebook in my clinical class - instead, I use an assortment of resources including excerpts from casebooks, legal writing texts, and other sources - so normally review copies go straight onto my office bookshelf for reference purposes. However, this particular book is intriquingly short, so I paged through it at lunchtime. It seems like it has an interesting approach to the material, and in light of Ken Stahl's post yesterday it seemed timely to post it. Here's part of the author's description of their "intensely practical focus:"
Although our book is not short on theory, we emphasize questions and problems that land use lawyers have to face on a regular basis – not just before appellate courts, but before zoning boards, planning commissions, and other administrative bodies. In fact one entire chapter of the book is devoted to three extensive development problems that force students to confront the issues central to land use practice. The problems provide an excellent vehicle for classroom role-playing.
Jamie Baker Roskie
It's hard to believe, but we're already in the thick of the season of calls for participation for next year's academic conferences. Here's a few conferences that I recommend, with links to their registration pages:
Law and Society Association: June 5-8, 2012, Honolulu, Hawaii. CFP deadline: Dec. 6, 2011.
Association for the Study of Law, Culture, and Humanities (ASLCH): March 15-17, 2012, Texas Wesleyan, Fort Worth, Texas. CFP Deadline: Oct. 15, 2011.
Association for Law, Property, & Society (ALPS): March 2-3, 2012, Georgetown Law, DC. Registration deadline: Jan. 20 (early bird Nov. 15, 2011).
Southeastern Association of Law Schools (SEALS): July 29-Aug. 4, 2012, Amelia Island Ritz-Carlton, Florida. CFP deadline: Oct. 31, 2011.
Northeast Regional Scholarship and Teaching Development Workshop: Feb. 3-4, 2012, Albany Law School, New York. Registration deadline: Nov. 15, 2012.
I've been to each of these gigs in the past, and they've been tremendously helpful to me as a scholar and teacher. It's also been my personal experience that these conferences in particular tend to be accessible and hospitable for junior scholars--including junior faculty, grad students, VAPs/fellows, and practitioners. These conferences (ALPS excepted) are not land-use-specific, but there are usually more than enough property/land use/environmental folks as well as interesting interdisciplinary panels. There's nothing as helpful as the chance to present your work, share ideas, and meet others in the field.
Wednesday, October 5, 2011
I'm thrilled to announce that Prof. Kenneth Stahl will be joining us as a permanent Editor here at the Land Use Prof Blog.
Ken is on the faculty at Chapman University School of Law, out in the O.C., California. We're particularly glad to have him aboard after his most excellent guest-blogging stint with us in 2010. Ken teaches property, land use, and local government, and is the Director of Chapman's certificate program in Environmental, Land Use, and Real Estate Law. He has written some great articles including his piece on Local Growth Politics, and his most recent paper on Neighborhood Zoning. He frequently gives fascinating conference presentations, but he has also been known to play hooky to go and visit places like the National Building Museum.
It's a real honor to have Prof. Stahl on board, and we're all looking forward to his contributions. Thanks Ken!
Sadly, it's time to say farewell and thank Michael Lewyn for his contributions over the past month. I've been reading his articles for the past few years, and it has been an honor to have him on board here at the Land Use Prof Blog.
Please continue to check out his work on SSRN; on Planetizen; and at his new position at Touro Law. It was great to have him on board, and we'll all certainly be engaging with his scholarship in the future.
Tuesday, October 4, 2011
I've been on travel the past couple of weeks, which gave me an excuse to put off doing something I haven't wanted to do: to tell you all that Chad Emerson will be leaving the Land Use Prof Blog. The good news is that Chad has accepted a really exciting land use job. He will be the permanent Director of the Department of Development for Montgomery, Alabama.
You may recall that Chad has spent most of this year moonlighting as interim director of planning & development for the City, after Ken Groves passed away. Not surprisingly, the City made Chad a permanent offer, and somehow persuaded him away from his teaching post at Faulkner.
One of the things that has awed me about Chad as a teacher and scholar is his ability to understand and communicate about development to an incredible level of expertise and detail, such as the project design work he does with his students in his Land Planning and Development seminar. So he'll be the perfect person to lead Montgomery toward a bright land use future. (You can follow his department on Facebook!) I suspect he'll stay plugged in to the academy too, and will be able to share a lot of insights with us from the Real World.
We're very grateful for the work that Chad has put into this blog since 2009, when we picked up the torch from blog founder Paul Boudreaux. Chad will be missed, but please congratulate him on his new gig. And at least we have his Faulkner colleage Adam MacLeod on board for the month!
UPDATE: See Chad's characteristically gracious note in the comments. I know that we'll all be very interested to continue hearing about Montgomery and all of Chad's work towards better land use in American society.
Friday, September 9, 2011
Usually, I don’t think the casebooks I use are biased (at least not in a “Democrat vs. Republican” way) – but every so often I see something that gives me pause. In discussing zoning variances, my Property casebook (Dukeminier) writes that although issuance of zoning variances is reversed more often than denial, “This is not to say that variance administration is policed as closely as it should be.” The book then adds that “Illegal issuance [of variances] is a widespread phenomenon nationwide.”
Assuming for the sake of argument that cities are more lenient in granting variances than black-letter law might suggest, I am not sure that it is necessarily a bad thing. Maybe the zoning ordinance makes no sense, or allowing a minor deviation would be harmless in the situation at issue. But the casebook does not seem to share my point of view.
Why not? Perhaps a bias in favor of government regulation. But more likely, I think, a quite understandable “rule of law” bias in favor of cities following their own rules. The authors seem to think that the rules may be stupid, but as long as they are there they should be followed.
Thursday, September 8, 2011
Thursday, September 1, 2011
I'm excited to introduce our newest guest-blogger, Michael Lewyn. Prof. Lewyn is on the faculty of the Touro College Jacob D. Fuschberg Law Center, where he just moved after several years at the Florida Coastal School of Law. He teaches and writes in the area of property law and land use, specializing in urban and suburban development and sprawl. He's been a contributor at Planetizen and other places. You can check out his SSRN page here. I suspect many of you are familiar with his work, which includes a number of great articles on sprawl and related topics (including my personal favorite: How Overregulation Creates Sprawl (Even in a City Without Zoning).
We're thrilled to have Prof. Lewyn aboard at the Land Use Prof Blog for September. Welcome!
Thursday, August 25, 2011
From Stephanie Tai at the University of Wisconsin:
THE UNIVERSITY OF WISCONSIN LAW SCHOOL invites applications for one or more tenure-track faculty positions to begin Fall 2012 (negotiable). Applications are welcome across legal fields and at the intersection of law and other academic disciplines. The University of Wisconsin Law School has a strong institutional commitment to diversity of all types, and we encourage applications from those whose backgrounds can further contribute to the diversity of the faculty. Applicants should submit a letter of interest, current résumé (including a list of teaching interests), a research agenda, and references to: Professor Anuj C. Desai, Chair, Faculty Appointments Committee, University of Wisconsin Law School, 975 Bascom Mall, Madison, WI 53706-1399 (or via e-mail to <email@example.com>). The University of Wisconsin-Madison is an affirmative action/equal employment opportunity employer.
They're doing a general search, but since they reached out to us here at the blog, we can assume that land use applications are welcome!
Monday, August 22, 2011
I'm a bit tardy in getting this out, but over the summer the folks at Lewis & Clark's Pacific Environmental Advocacy Center won a big victory against Portland General Electric, effectively making Oregon a coal free state. LC law students were integrally involved in this case, making for one of the most fantastic clinical experiences ever (in my opinion).
Read more about it on the LC website. (Full disclosure: If it seems like I'm bursting with price, perhaps it's because I am an LC [undergraduate] alumna.)
Jamie Baker Roskie
Thursday, July 21, 2011
Jessica Owley--one of our outstanding guest bloggers this year and, yes, she is a land use prof--sends word about a new listserv designed especially for junior scholars in environmental law, land use, and natural resources:
NEW LISTSERV FORMED
Environmental Law Junior Scholar Listserv
There is a new listserv available for pre-tenured faculty in environmental law, natural resources, and land use. This listserv will not duplicate the benefits of other valuable listservs available as it is intended to serve as a safe forum for open and candid dialogue junior scholars.
Beyond a traditional listserv, we will use this list to facilitate paper exchanges among our ranks. Those who choose to participate in the paper exchanges will gain the benefit of two colleagues reading and commenting on their work. Signing onto the listserv does not commit you to the paper exchange program. [If senior scholars are interested in volunteering to comment on a paper or two over the course of the year, please let us know by e-mailing jol at buffalo dot edu.]
To join the listserv, please send the following information to jol at buffalo dot edu
(2) Current Institution
(3) Years Teaching
Looks like a great resource for junior scholars--go ahead and sign up!
Wednesday, July 20, 2011
Jessica Owley (University at Buffalo School of Law) and Adena Rissman (Wisconsin-Madison, Dept. of Forest & Wildlife Ecology) have posted Distributed Graduate Seminars: An Interdisciplinary Approach to Studying Land Conservation, forthcoming in the Pace Environmental Law Review (PELR). The abstract:
Adapting to the many changes associated with climate change is an increasingly important issue and nowhere more so than in efforts to conserve private land. Interdisciplinary distributed graduate seminars conducted in Spring 2011 at six universities investigated whether current land conservation laws and institutions appear up to the task of protecting land in the context of change and avenues for improving the adaptive capacity of such institutions.
Distributed graduate seminars are courses coordinated among multiple universities. They begin with a core of interested faculty who organize graduate students at their universities to collect or analyze dispersed data. This article gives a brief introduction to distributed graduate seminars and then details the experience and insights gained conducting such a seminar for land conservation and climate change. The distributed graduate seminar offers advantages by allowing for the synthesis of diverse data, the integration of multiple disciplinary perspectives, and the person-power enabled by student research. For students, the distributed seminar provides opportunities to engage with a broader academic community, benefit from new perspectives, and contribute in a meaningful way to a large endeavor.
Their seminar is a great idea, and an ambitious way to take advantage of the inherent interdisciplinarity in the land use field. The paper is part of the forthcoming PELR special issue from the Practically Grounded conference on teaching land use and environmental law. More to come.
Tuesday, July 12, 2011
Wednesday, July 6, 2011
The environmental law community is mourning the passing of former Colorado Law dean David Getches. While I never had the pleasure of meeting Dean Getches, it is evident he was deeply loved and respected, as well as very accomplished. From his faculty bio:
David Getches is the Raphael J. Moses Professor of Natural Resources Law at the University of Colorado School of Law. He teaches and writes on water law, public land law, environmental law, and Indian law. Professor Getches has published several books including: Water Law in a Nutshell (1997); Searching Out the Headwaters: Change and Rediscovery in Western Water Law and Policy, with Bates, MacDonnell and Wilkinson (1993); Controlling Water Use: The Unfinished Business of Water Quality Control, with MacDonnell and Rice (1991); Water Resource Management, with Tarlock and Corbridge (1993); and Federal Indian Law, with Wilkinson and Williams (1998). He has written many articles and book chapters that appear in diverse scholarly and popular sources, including recent articles calling for reform of Colorado River governance and criticizing the Supreme Court’s departure from traditional principles in Indian law.
From 1983-1987, David Getches was Executive Director of the Colorado Department of Natural Resources under Governor Richard D. Lamm. The department includes ten divisions of state government that deal with parks, wildlife, land, water, and minerals. While in that post he strongly advocated water conservation, pressed for groundwater law reform, advanced ideas for better cooperative management and control of the Colorado River, urged expansion of the state’s designated wilderness areas, and spoke out on the importance of recreation and wildlife to the state’s economy.
Mr. Getches was the founding Executive Director of the Native American Rights Fund (NARF). He developed the staff, funding, and program of this national, nonprofit Indian-interest law firm. Major cases he litigated include a Northwest Indian fishing rights case (United States v. Washington, also known as “the Boldt decision”) and a case on behalf of Eskimos to establish the North Slope Borough, the largest municipality in the world, which includes the Prudhoe Bay oil fields. His other cases dealt with water rights, land claims, federal trust responsibilities, environmental issues, education, and civil rights on behalf of Native American clients throughout the West.
He obviously will be deeply missed.
Jamie Baker Roskie