Saturday, June 13, 2009

Pace Environmental Law Review Announces Goes to Peer-Review

I just got this announcement, which will be of interest to readers who publish in topics related to environmental law:

Established in 1982, PELR was one of the first scholarly environmental law
journals.  As of August 1, 2009, Pace Environmental Law Review (PELR) will use
a new Peer Review process to select articles for publication.  Submissions
will be reviewed internally and then forwarded to a select group of Peer
Reviewers - academics, practitioners, and experts in the field, including
members of Pace Law School's world-renowned environmental law faculty.  The
Peer Review process will offer new and distinctive opportunities to foster
continued debate and reflection upon some of the most pressing topics within
the field of environmental law. Articles selected for publication will benefit

-       Expedited editorial processing of 8 to 10 weeks from acceptance.

-       Single-article hard copy publication.

-       Inclusion in a bound volume distributed to PELR's wide-ranging list of

All articles submitted to PELR must be original scholarship and not previously
published.  Exclusive submission not required. 

We invite authors to submit articles either via ExpressO or directly in either
MSWord or PDF format to the PELR Development & Acquisitions Editor at

For more information, please visit the website at

I'm a fan of peer review, and I hope this experiment works well.  I'm a little surprised that they are not requiring exclusive submission, and will be interested to see how this works for them.

Ben Barros

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June 13, 2009 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 10, 2009

Cornell Law Review on Progressive Property

The Cornell Law Review has a major symposium on "progressive property."  It begins with a joint statement by Greg Alexander, Eduardo M. Penalver, Joseph William Singer, and Laura S. Underkuffler.  Then follow articles on The Social-Obligation Norm in American Property Law by Gregory S. Alexander and Land Virtues by Eduardo M. PeƱalver.  

The responses are Virtue and Rights in American Property Law by Eric R. Claeys; A Few Questions About the Social Obligation Norm by Jedediah Purdy; Mind the Gap: The Indirect Relation Between Ends and Means in American Property Law by Henry E. Smith; Should Property Scholars Drop Economics for Virtue?  A Skeptical Comment by Katrina M. Wyman.  There is also an essay, Democratic Estates: Property Law in a Free and Democratic Society by Joseph William Singer and, finally, a relpy, The Complex Core of Property, by Gregory S. Alexander.

Alexander's lead article deserves a lot of attention; I hope to devote some time to it later in the summer, though I'll add two things right now.  First, it comes at a time when the political winds may be (emphasis on may be) blowing his way.  So Alexander may be in a position to have his ideas heard in a way that hasn't been possible for several decades.  Second, I think that one could--and in fact Alexander has in some ways done this already in Properiety and Commodity--find a lot of the pieces of what he speaks about as the social obligations of property in American history.  For me as a historian, one interesting question is which pieces of property's role--as social obligation or something else--has been dominant over time.  Lots of fun to be had in talking about all this!

Alfred L. Brophy

June 10, 2009 | Permalink | Comments (1) | TrackBack (0)

Confusion Between American and International Takings Law

I should probably write something more substantial about this at some point, but I've been talking with various people recently about the international law of expropriation and its relationship to U.S. takings law.  There are a host of important differences, the biggest being that the former is based on international law, while the later is based on the U.S. constitution.  I wanted to point out one big difference that may be subtle and easy to miss.  Many international expropriation cases involve a breach by a host country of a contract of some sort with a foreign investor -- maybe a natural resources concession contract, or a power purchase agreement with a government utility.  In U.S. law, these contractual breaches would raise Contracts Clause issues.  So the international cases often feature expropriation discussions that meld issues that in the U.S. would be distinctly considered under the Contracts Clause and the Takings Clause.  This is not to say that in every case the government would lose on the Contracts Clause issue in the U.S. courts; rather, government breach of contract issues are usually considered separately from expropriation issues in U.S. cases.  In international cases, the two sets of issues can be completely intertwined.

Ben Barros

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June 10, 2009 in Takings | Permalink | Comments (0) | TrackBack (0)

Monday, June 8, 2009

Department of Misleading Headlines

Consider the following headline and lede:

U.S. Gov't Backs Off Seizure Plan, Says Flight 93 Landowners 'Will Be Treated Fairly'

SOMERSET, Pa. -- The U.S. government will not use eminent domain to seize people's land for a permanent Flight 93 memorial and instead will renew negotiations with landowners near the terrorist crash site in Somerset County.

Then consider the following, from later in the article:

Salazar told the park service to negotiate with landowners for one more week. Eminent domain will be used as a last resort if no agreement can be reached.

So, translated, the U.S. will back off its threat to use eminent domain to take the Flight 93 memorial property, BUT will only negotiate for a week before going back to using eminent domain if negotiations are not successful.  Bargaining in the shadow of law, anyone?  To be clear, I have no problem whatsoever with the government using eminent domain here.  The only difference between going straight to eminent domain and settling early and what is happening here is public perception and politics, which is also completely okay in this context.

Ben Barros

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June 8, 2009 in Takings | Permalink | Comments (0) | TrackBack (0)