PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Saturday, December 1, 2007

Advice to Law Journals, Part 16

Haverfordcollegelibrary_1865 16    use an outside board of reviewers

One of the ways of improving quality control is to ask experts in the field.  I understand that both the Harvard Law Review and the Yale Law Journal are already asking for experts outside of their schools for opinions.  Lo those many years ago when I was an editor we asked our faculty for advice on articles we were thinking about.  And at the Alabama Law Review we never accept an article without having at least one faculty member read it--though I am often the person doing the reading and since my expertise is limited to a few areas, that sometimes means that I'm reviewing articles in areas in which I have no particular knowledge of the literature or even the key questions.

I hope that in addition to using the experts to judge the quality of a piece, the journals will also communicate the evaluations to the authors.  That gives the authors one of the key benefits of peer review: feedback.

I'm not sure how that practice is working out and I'd be most interested in hearing.  The journals rely on the generosity of faculty at other schools.  I suppose that journals at Harvard and Yale can rely pretty heavily on other faculty, because those faculty may want to curry favor with the editors.  Whether the Alabama Law Review--to take one journal near my heart--could get away with asking for quick turnarounds from faculty elsewhere is an important question.  And how often you could go to the well is another one.  But at least for our nation's most elite journals, I think that asking for outsiders' opinions is an improvement.

Endnote:  While looking for a public domain image of a board of experts, scientists, whatever, to illustrate this post, I came across the lovely image of nineteenth century Haverford College faculty in their library--and that led to this cool link, to Haverford College's 1836 library catalog.

Alfred L. Brophy
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December 1, 2007 in Law Schools | Permalink | Comments (0) | TrackBack (3)

Friday, November 30, 2007

Kushner on Urban Neighborhood Regeneration

James Alan Kushner (Southwestern Law School) has posted Urban Neighborhood Regeneration and the Phases of Community Evolution After World War II in America on SSRN. Here's the abstract:

This article describes four distinct phases that urban neighborhoods have passed through in the last sixty years. The first phase, from World War II until 1968, followed a pattern of decentralization, investment in suburban infrastructure, and strict segregation. The second phase, 1968 to 1975 was marked by hyper-sprawl, the loss of the central city economic base and population, and hyper-segregation. The third phase, 1975-1990, was characterized by class segregation, increased cost to access the suburbs and increased class and racial separation. The fourth phase, 1990 to 2008, witnessed hyper-segregation, voluntary class, racial, and ethnic separation, and persistent racial discrimination. The article suggests that the United States may be entering a fifth post-war phase of Smart Growth, public transport, infill strategies, and New Urbanist and surburbanist designs producing greater diversity.

Ben Barros

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November 30, 2007 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Rose on Carbon Trading

Carol Rose (Arizona) has posted From H20 to C02: Lessons of Water Rights for Carbon Trading on SSRN.  Here's the abstract:

Interest in climate change has generated many proposals for cap-and-trade programs to control greenhouse gases. Longstanding American water rights regimes may have some lessons for these new proposals. Nineteenth century eastern water law focused on the cap - keeping water instream - and particularly illustrates the importance of mobilized constituencies in any program that entails capping resource use. Western water law focused on individualized and supposedly tradable rights, and its experience shows especially the significance of rights-definition both for the content and for the tradability of rights. As with water rights, both content and tradability in the new rights regimes are likely to match only imperfectly the goals that we want a cap-and-trade program to serve. For that reason, the historical experience of both water regimes also suggests the important role that surrounding and supporting institutions will play to facilitate trade under imperfect circumstances, and to reassure participants of the standards, accountability, and acceptability of the cap-and-trade regime.

Ben Barros

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November 30, 2007 in Natural Resources, Property Theory | Permalink | Comments (1) | TrackBack (0)

Thursday, November 29, 2007

New Jersey v. Delaware

I'm not sure how I missed it up until now, but a fascinating property case was argued this week in the Supreme Court.  The case involves a dispute related to the border between New Jersey and Delaware.  New Jersey wants to allow a large natural gas storage plant on its side of the Delaware river.  To make the plant workable, it needs to put in a 2,000 foot pier, which presents a problem. From the NY Times story on the argument:

Under a 1934 Supreme Court decision that settled a long-disputed boundary, Delaware owns the entire riverbed, from its own shoreline up to the low-water mark on the New Jersey side. But that fact, which neither side in the current case disputes, is not the end of the case, but only the beginning, as the argument on Tuesday made clear.

A major complicating factor is that in 1905, before the boundary was settled, the two states entered into a compact that is still in effect. It provides that “each state may, on its own side of the river, continue to exercise riparian jurisdiction of every kind and nature” under its own laws.

The word riparian refers to shoreline, and under traditional land-use law, ownership of shoreline property conveys the right to build a pier or wharf extending far enough into the water to make the property accessible.

To New Jersey, permitting the BP project is simply an exercise of “traditional riparian authority” recognized under the compact, its lawyer, H. Bartow Farr III, told the justices.

But “the question that’s really at the rub of this case,” Delaware’s lawyer, David C. Frederick, said when his turn came, “is what you do on the wharf.”

The “crucial distinction here,” he said, was that Delaware was entitled to exercise its police power to block an activity that it considers dangerous or a “nuisance.”

The justices’ many questions during the animated session indicated that they found neither argument completely persuasive.

“Obviously, the right to ‘wharf out’ does not include the right to use the wharf for whatever you like,” Justice Antonin Scalia said to Mr. Farr.

And Justice Samuel A. Alito Jr. objected to Mr. Frederick that if Delaware was entitled to a veto power over the uses of New Jersey-based piers and wharves, then the effort in the 1905 compact to preserve New Jersey’s riparian rights was “worthless” and “meaningless.” Could Delaware declare that docking a sailboat was a “nuisance”? he asked.

As an added bonus, Justice Breyer has recused himself from this original jurisdiction case, raising the possibility of a 4-4 tie.  What happens with a tie vote in an original jurisdiction case?  Who knows.

Ben Barros

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November 29, 2007 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 27, 2007

Advice to Law Journals, Part 15

Been absurdly busy of late--was at the University of Miami's lovely campus a few weeks ago for a panel on reparations and then in Chapel Hill for an awesome conference on Thomas Ruffin.  Meanwhile, I had to finish up my Thomas Dew paper.  On top of which, the hiring season is in full swing at Alabama and classes are coming to a close, as well.  November's almost over and there hasn't been a single piece of advice to law journals this whole month.  So this suggestion will be short.

15    give a short time frame for expedites

I'm not sure there's a lot more to add to this; my experience (as faculty advisor) is that when we give long time frames, we rarely land pieces.  Now, we might not have gotten them in the first place, but long time frames also make it harder to plan, because you have offers out that may be accepted.  Authors, obviously, would prefer longer time frames and you may lose some authors if you give an offer with a short period for accepting.

Alfred L. Brophy
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November 27, 2007 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Schragger on Cities, Economic Development, and the Free Trade Constitution

Richard C. Schragger (UVA) has posted Cities, Economic Development, and the Free Trade Constitution on SSRN.  Here's the abstract:

The role of cities and local government generally has gone unexamined by legal scholars of the constitutional common market. Yet in a highly urbanized country in which cities and large metropolitan areas dominate the national economy, much of the cross-border movement of persons, goods, and capital inside the United States is more accurately characterized as inter-municipal rather than inter-state. This Article examines the constitutional rules that govern this cross-border movement from the perspective of the city. The Article argues that judges and commentators have misapprehended the jurisprudence of the American common market because they have been looking at its operation on the wrong scale. Examining how the doctrine operates at the municipal level exposes the gaps and contradictions in the jurisprudence, reveals connections between legal doctrines that heretofore had not been considered part of the free trade regime, and highlights the Supreme Court's implicit (and under-theorized) urban economic policy. The reframing of the economic and jurisprudential place of cities in the free trade constitution sheds light on a number of important recent cases, in particular Kelo v. New London, in which the Court upheld a city's use of eminent domain for economic development purposes under the Fifth Amendment's Takings Clause. The Article's city-centric approach also intervenes in a number of judicial and scholarly debates, including the appropriate reach and application of the ?dormant? commerce clause, the appropriate judicial oversight of local land use regulations under the Takings Clause, and the role of courts in policing and shaping local economic development efforts more generally.

Ben Barros

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November 27, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Monday, November 26, 2007

Klass on The Frontier of Eminent Domain

Alexandra B. Klass (Minnesota) has posted The Frontier of Eminent Domain on SSRN.  Here's the abstract:

The Supreme Court's 2005 decision in Kelo v. City of New London brought the issues of takings and public use into the national spotlight. A groundswell of opposition to government-initiated “economic development takings” the Court deemed a public use under the Fifth Amendment led to eminent domain reform legislation in over 30 states. Many people are surprised to learn, however, that another type of economic development taking is alive and well in many western states that are rich in natural resources. In those states, oil, gas, and mining companies have the power of eminent domain under state constitutions or state statutes to take private property to develop coal, oil, or other natural resources. In fact, the Supreme Court's deference to such “natural resource development takings” in the early part of the 20th century was the base upon which the Court built its decision in Kelo. This Article first explores the relationship between Kelo-type economic development takings and natural resource development takings and argues that the national reaction to Kelo has focused too narrowly on government takings and ignored the impact of private takings. It then uses recent property reforms in the Interior West to explore the broader implications of the role of eminent domain in reallocating property in society and proposes some additional reforms for natural resource development takings.

Ben Barros

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November 26, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)