PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Saturday, August 25, 2007

Advice to Law Journals Part 4

I spent a part of this morning welcoming the new editors of the Alabama Law Review.  I reminded them of the fun and learning experiences they'll have over the next four semesters.  And while some might liken this speech and student editing of journals more generally to chapter 2 of Tom Sawyer, I think law review will be a really positive intellectual experience for the students.  I also reminded them that the review is our school's ambassador to the rest of legal education and that our school will likely be judged by the quality of work that they produce.  (More thoughts on this here and here.)  As people who write on the history of the book say, if you want to know something about the minds of a people, read their literature.

That reminds me that I need to post some more on my continuing series (in 18 parts more or less) on advice to law journals.  This one is very closely related to the last piece of advice:

4.  Another way to get better work than typically walks itself in the door (or at least work by bigger names is: publish distinguished lectures.  Lots of law reviews in recent years have very successfully recruited essays (and sometimes longer articles) by distinguished senior faculty who have given talks at their law school.  We're all familiar with some of the grand lecture series and the work they've produced.  When I was in school everyone spoke about Herbert Wechsler's Holmes lecture, which resulted in "Toward Neutral Principles of Constitutional Law" in the Harvard Law Review in 1959.  And then there is Robert Bork's "Neutral Principles and Some First Amendment Problems," which appeared in the Indiana Law Journal in 1971--one of the most-cited articles of all-time.  Lots of times these lectures become books, like Grant Gilmore's Storrs' lectures that ended up as Ages of American Law.  (Ages hasn't worn all that well over time, but that's a separate matter and one to be taken up at another time and perhaps on another blog).  But lots of reviews have, I think, done a very nice job with getting thoughtful distinguished scholars (particularly in recent years youngish scholars who have done great work and are on the verge of becoming very distinguished) to give lectures and then publish work in their law journals. 

Particularly for schools that pick people who are about to become famous (or semi-famous), this shows some creativity and may be another sign of the thoughtfulness and intellectual culture of a school.  I'm not sure it shows a whole lot of creativity to invite Cass Sunstein or Richard Epstein or Lawrence Tribe or Richard Posner or any of a whole list of other huge figures to give a distinguished lecture.  But it might show tons of creativity and thoughtfulness to invite a youngish scholar who's already done great work.  But either way, if you secure a thoughtful piece, you're likely to have some really high quality work.  And I suspect that publishing distinguished lectures avoids some of the pitfalls associated with pre-placements of symposium pieces: the distinguished scholars will want to put their best feet forward for a public audience.

Alfred L. Brophy
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August 25, 2007 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Friday, August 24, 2007

Welcome to the Blogosphere -- Law of the Land

Patricia Salkin of Albany Law School, one of the most astute commentators on land use issues in the legal academy, has started a new blog called Law of the Land.  The first posts are outstanding.  Check it out!

Ben Barros

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August 24, 2007 in Land Use | Permalink | Comments (0) | TrackBack (1)

Thursday, August 23, 2007

Boonk and Lodder on Website Access

Martine Boonk (Vrije Universiteit Brussel) and Arno R. Lodder (Free University of Amsterdam) have posted Regulating Website Access for Automated Means Such as Search Bots and Agents: Property or Contract? on SSRN.  Here's the abstract:

This paper deals with legal issues concerning website access for software agents, notably the question how terms and conditions on a website can be presented in such a way that software agents and other automated programs exploring the internet can adhere to them. We discuss the technology behind requesting website content, and indicate for what reasons website owners regulate access to their web sites.

The core of the paper analyses the legal grounds for applying terms and conditions to websites: property rights and contractual duties. In our discussion we take into account the theory of browse-wrap licenses and case law from both Common Law and Civil Law countries. We also argue that under specific circumstances, the mere visiting of a website may constitute a contract.

The question as to whether what holds for human users also holds for automated means is given special attention. Finally, we introduce ways to more effectively regulate website access for automated means.

Ben Barros

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August 23, 2007 in Intellectual Property, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 21, 2007

Advice to Law Journals: Part 3

Continuing on the series on advice to law journals....

My third piece of advice to law reviews seeking to improve is to publish symposia.  At least for journals outside of the top fifty or so, I think this is very sound advice (and probably pretty good for all reviews).  You can likely solicit people who'll produce better pieces than you're likely to get if you rely on what walks in the door.  And you give good authors a reason to publish in your journal. 

Some journals have been very successful with this in recent years.  The Chicago-Kent Law Review springs to mind and Loyola LA has moved to an all-symposium format as well (though I don't think there's been enough time to know how well that has worked just yet).  The Fordham, DePaul, Albany, and Thomas Jefferson law reviews have used symposia very successfully as well in recent years, to name a few that come to mind quickly.  Fordham Law Review has been spectacularly successful in recent years and at some point I'd like to investigate what led to their success--I bet it's in part due to some excellent symposia.

There is a danger of committing to pieces sight-unseen.  There is little incentive for the authors to then turn in their best work.

Alfred L. Brophy
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August 21, 2007 in Law Schools | Permalink | Comments (1) | TrackBack (0)

Monday, August 20, 2007

Kent on Takings After Lingle

Michael B. Kent Jr. (John Marshall Law School -Atlanta) has posted Construing the Canon: An Exgesis of Regulatory Takings Jurisprudence after Lingle v. Chevron on SSRN.  Here's the abstract:

Regulatory takings has long been considered one of the more confused areas of constitutional analysis. Since the Supreme Court's opinion in Penn Central Transportation Company v. City of New York, the law of regulatory takings has been characterized by varying analytical tests, competing theories, seemingly results-oriented decision-making, and a conflation with the law of substantive due process. In 2005, however, the Court made substantial strides in bringing some clarity to this area with its decision in Lingle v. Chevron U.S.A., Inc. In that case, the Court unanimously rejected the “substantially advances” test, demonstrating a rare willingness to discard prior precedent as well as to divorce takings law from that of due process. Moreover, the Court unanimously reaffirmed five other decisions (Penn Central, Loretto, Nolan, Lucas, and Dolan) that now govern the regulatory takings inquiry.

This article argues that these five decisions, along with Lingle itself, should be considered uniquely authoritative (akin to a “canon” of sacred writings) with regard to takings analysis. By reading this “canon” exegetically – that is, by divining the intent of the Court through the language and context of the decisions viewed as if they were components of a single, unified text – it is possible to perceive a way out of the takings “muddle.” Viewing the cases in this manner, the “canon” presents a clearer picture of the overarching themes and characteristics of regulatory takings, as well as a greater coherence in the frameworks under which takings claims should be analyzed. This article seeks to elucidate those themes and characteristics, explain the analytical frameworks, and raise issues that continue to require the Court's attention.

Ben Barros

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August 20, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Anderson on the Right to Roam

Jerry L. Anderson (Drake University Law School) has posted Britain's Right to Roam: Redefining the Landowner's Bundle of Sticks on SSRN.  Here's the abstract:

Britain recently enacted a "right to roam" in the Countryside and Rights of Way Act (CRoW) 2000. At first glance, CRoW appears to be a dramatic curtailment of the landowner's traditional right to exclude; it opens up all private land classified as "mountain, moor, heath, or down" to the public for hiking and picnicking. Yet, when viewed in the light of history, CRoW may be seen as partially restoring to the commoner rights lost during the enclosure period, when the commons system ended. CRoW also represents a return to a functional rather than spatial form of land ownership, allowing more than one party to have rights in a particular piece of land. The new law highlights some important public values regarding freedom of access that have been all but forgotten in the United States. The law calls into question U.S. Supreme Court precedent that has enshrined the right to exclude as an "essential" stick in the bundle of property rights and serves as a powerful alternative to the Court's formalistic notion of property rights. Given the differences in its history, culture, and legal system, the United States is unlikely to follow Britain's lead in enacting a right to roam; nevertheless, the study of CRoW contains valuable lessons for Americans.

Ben Barros

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August 20, 2007 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Emerson on Sprawl

Chad D. Emerson (Faulkner University School of Law) has posted two articles on SSRN on sprawl.  The first is All Sprawled Out: How the Federal Regulatory System Has Driven Unsustainable Growth:

The United States faces a serious threat that grows more troublesome every year; one whose negative effects run the gamut from environmental concerns to social and fiscal harms

The threat — often called sprawl — is evidenced by the proliferation of unsustainable land development patterns throughout this country.

Significantly though, sprawl is not simply a problem of bad design or planning. These are, in fact, merely symptoms of a much more prolific cause. Indeed, the true driving force behind sprawl has been a series of federal laws and regulations that, over the last century, have facilitated development patterns in the United States that are neither fiscally sound nor physically sustainable.

This article examines three specific areas of federal regulation that have exacerbated sprawl: federal tax policy, federal transportation policy, and federal housing policy. It analyzes these laws and regulations within a historical context to determine why and how they came to be.

To accomplish this, the article surveys specific examples of federal laws within each of these categories that have served to promote the near unfettered growth of American sprawl. By doing so, the article identifies those areas of federal regulation that, if modified or repealed, can facilitate a move away from sprawl growth and toward a more sustainable land development strategy.

Ultimately, this article exposes the federal laws that have driven sprawl in this country — and, by doing so, have exacerbated the numerous negative impacts of sprawl on our society.

The second is Making Main Street Legal Again: The Smartcode Solution to Sprawl:

For those concerned with the sustainability of today's land development patterns, there looms an unfortunate yet eye-opening reality: presently, if a developer wants to develop a project similar to classic American communities such as Charleston, Savannah, Key West, or Alexandria, in most jurisdictions, doing so would be illegal under existing zoning codes. Similarly, if a developer sought to develop a neighborhood with a traditional corner store or a classic American main street where the shopkeeper lived about her shop, many existing zoning codes would legally prohibit such a result.

The stark reality is that, in most jurisdictions within the United States, traditional town and neighborhood planning techniques are illegal because many of today's conventional zoning codes either prevent their use expressly or by effect. And, even worse, this is not a recent phenomenon but rather the result of an outdated zoning scheme that dates back to the early 1900s. A zoning system that, as this article will show, has now outlived much of its original purpose and usefulness.

Fortunately, a growing group of land planners and attorneys have developed a comprehensive legal response to this unsustainable reality — a response whose leading purpose is to legalize the use traditional planning techniques in our regions, communities, neighborhoods, and streets. Known as the SmartCode and developed by leading town planner Andres Duany, this response is not simply an abstract theory or proposal, but rather an actual regulatory document that can be adopted by local jurisdictions to enable the legal use of traditional planning techniques. At its core, the SmartCode is “a fundamentally different vision of how cities should be coded” as it codifies many of the traditional planning techniques that today are advocated by the New Urbanism movement — techniques such as mixing uses, utilizing interconnected street networks, and designing compact, walkable, and environmentally-sustainable communities.

This article will analyze the format of the SmartCode and, since the SmartCode is a model code that must be legally customized for local jurisdictions, the article will further explain the legal steps that communities must take in order to implement the SmartCode as a zoning option. While doing so, the article will also examine how the strict Euclidean structure of today's conventional zoning codes has necessitated the creation of the SmartCode in order to allow communities to legally utilize traditional town and neighborhood planning techniques.

Ben Barros

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August 20, 2007 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)