PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Friday, August 28, 2009

Barnes on Property and Natural Resources

Richard Alan Barnes (University of Hull) has posted Property Rights and Natural Resources on SSRN.  Here's the abstract:

The use of private property rights to regulate natural resources is a controversial topic because it touches upon two critical issues: the allocation of wealth in society and the conservation and management of limited resources. This book explores the extension of private property rights and market mechanisms to natural resources in international areas from a legal perspective. It uses marine fisheries to illustrate the issues that can arise in the design of regulatory regimes for natural resources. If property rights are used to regulate natural resources then it is essential that we understand how the law and values embedded within legal systems shape the development and operation of property rights in practice. The author constructs a version of property that articulates both the private and public function of property. This restores some much needed balance to property discourse. He also assesses the impact of international law on the use of property rights - a much neglected topic - and shows how different legal and socio-political values that inhere in different legal regimes fundamentally shape the construction of property rights. Despite the many claimed benefits to be had from the use of private property rights-based management systems, the author warns against an uncritical acceptance of this approach and, in particular, questions whether private property rights are the most suitable and effective arrangement means of regulating of natural resources. He suggests that much more complex forms of holding, such as stewardship, may be required to meet physical, legal and moral imperatives associated with natural resources.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

August 28, 2009 in Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, August 27, 2009

Stop the Beach Links

For those interested in following the Stop the Beach judicial takings case, the Petitioner's merits brief, and a bunch of amicus briefs, are available online.  I'll have more to say after the Respondents' brief is in.  Also, there is a story from Greenwire on the NY Times website about the case.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

August 27, 2009 in Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 26, 2009

Brigham-Kanner Property Rights Conference

This year's Brigham-Kanner Property Rights Conference will be held at William & Mary on October 16-17.  This year's honoree is Richard Pipes.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

August 26, 2009 in Conferences | Permalink | Comments (1) | TrackBack (0)

Ruhl and Craig on Governance Institutions for Estuaries and Coasts

J. B. Ruhl and Robin Kundis Craig (Florida State) have posted New Sustainable Governance Institutions for Estuaries and Coasts on SSRN.  Here's the abstract:

The central point of inquiry in this chapter - how to design sustainable governance institutions for estuaries and coasts - lends itself to no straightforward answers. Sustainability, while practically a household term in environmental policy dialogue, has proven elusive at best when it comes to setting policy goals into concrete policy text. Governance institutions come in all variety of structures and arrangements, and what might work well to support sustainability in one context may prove entirely ineffective in others. Estuaries and coasts are the most productive and important, but also the most complex, of ecosystems on the planet. Hence the design of sustainable governance institutions for estuaries and coasts is an ambitious, perhaps even audacious, undertaking, for which we can hope only to touch the surface.

The present path of coastal and estuaries development is unsustainable under any definition. Sustainability must move from being an aspiration to supplying the metric by which policy initiatives and decisions are measured, yet the metrics of sustainability remain coarse and unproven. Coastal managers need governance institutions that are simultaneously stronger and more flexible than many used to date, but those institutions’ configurations are likely to be unfamiliar and controversial and much about them remains experimental and untested at this stage. Sustainable governance institutions for estuaries and coasts are, in other words, still largely at the drawing board.

This chapter nonetheless provides an overview of the progress that has been made and the challenges that surely lie ahead. Part I broadly frames the topic of sustainable governance, places it in the context of estuarine and coastal ecosystems, and reviews how the topic has been treated in the major international dialogues and agreements on sustainability. Part II identifies and assesses what are often held out as foundational principles of sustainable governance in general. Part III then reviews different institutional structures that have been used or proposed for arranging and focusing some or all of those principles toward the goal of sustainable governance for estuaries and coasts.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

August 26, 2009 in Land Use, Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Ruhl and Craig on Governance Institutions for Estuaries and Coasts

J. B. Ruhl and Robin Kundis Craig (Florida State) have posted New Sustainable Governance Institutions for Estuaries and Coasts on SSRN.  Here's the abstract:

The central point of inquiry in this chapter - how to design sustainable governance institutions for estuaries and coasts - lends itself to no straightforward answers. Sustainability, while practically a household term in environmental policy dialogue, has proven elusive at best when it comes to setting policy goals into concrete policy text. Governance institutions come in all variety of structures and arrangements, and what might work well to support sustainability in one context may prove entirely ineffective in others. Estuaries and coasts are the most productive and important, but also the most complex, of ecosystems on the planet. Hence the design of sustainable governance institutions for estuaries and coasts is an ambitious, perhaps even audacious, undertaking, for which we can hope only to touch the surface.

The present path of coastal and estuaries development is unsustainable under any definition. Sustainability must move from being an aspiration to supplying the metric by which policy initiatives and decisions are measured, yet the metrics of sustainability remain coarse and unproven. Coastal managers need governance institutions that are simultaneously stronger and more flexible than many used to date, but those institutions’ configurations are likely to be unfamiliar and controversial and much about them remains experimental and untested at this stage. Sustainable governance institutions for estuaries and coasts are, in other words, still largely at the drawing board.

This chapter nonetheless provides an overview of the progress that has been made and the challenges that surely lie ahead. Part I broadly frames the topic of sustainable governance, places it in the context of estuarine and coastal ecosystems, and reviews how the topic has been treated in the major international dialogues and agreements on sustainability. Part II identifies and assesses what are often held out as foundational principles of sustainable governance in general. Part III then reviews different institutional structures that have been used or proposed for arranging and focusing some or all of those principles toward the goal of sustainable governance for estuaries and coasts.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

August 26, 2009 in Land Use, Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 25, 2009

Kent on Impact Fees as Takings

Michael B. Kent Jr. (John Marshall/Atlanta) has posted Theoretical Tension and Doctrinal Discord: Analyzing Development Impact Fees as Takings on SSRN.  Here's the abstract:

One of the lingering questions about the law of regulatory takings concerns the proper scope and application of the Supreme Court’s exactions jurisprudence, known as the Nollan/Dolan test. A recurring issue in the case law, and of particular importance to this article, is the extent to which the Nollan/Dolan framework applies to takings challenges brought against development impact fees.

By and large, the decisions on the issue split over two primary issues. First, there is a debate about whether Nollan/Dolan is limited to physical exactions or whether the test might also apply to monetary exactions as well. Second, there is a difference of opinion over whether Nollan/Dolan applies only to exactions imposed in an ad hoc, adjudicative manner or also to those that are more broadly-applicable and established legislatively. These questions are important, but the primary emphasis on them has diminished other issues that also require attention. Particularly, there is a need to situate impact fees within the law of local government financing – i.e., determining whether they operate as fees or taxes – which will have some bearing on the proper level of Takings Clause scrutiny to which they should be subjected. Only after wrestling with all of these issues, can one move to the ultimate query of what analytical test is most appropriate.

This article attempts to answer these questions, fit impact fees into the Court’s current takings jurisprudence, propose a new rule of decision for impact fee cases, and demonstrate how that rule might apply to basic factual situations. In short, I demonstrate that impact fees are hybrid animals that occupy a space at the theoretical and doctrinal crossroads of takings jurisprudence, property law, and the rules applicable to municipal finance. Second, in light of this hybrid quality, I propose that takings challenges to impact fees be analyzed under a hybrid framework that combines elements of Nollan/Dolan with the more flexible factor-balancing reserved for the majority of takings cases. Finally, I suggest several larger questions implicated by the impact fee problem that continue to require judicial and scholarly attention.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

August 25, 2009 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

McLaughlin & Machlis on Conservation Easements

Nancy A. McLaughlin (Utah) and Mark Benjamin Machlis have posted Protecting the Public Interest and Investment in Conservation: A Response to Professor Korngold's Critique of Conservation Easements on SSRN.  Here's the abstract:

Many who have questioned the use of conservation easements as a land protection tool view such easements primarily through the prism of real property law and as “private” arrangements. This perspective is perhaps understandable given that conservation easements are partial interests in real property and the land protected by conservation easements continues to be owned by private persons. But conservation easements are not simply interests in real property, nor are they accurately described as private. Rather, they are public or charitable assets and their status as such has important legal and policy implications that are often misunderstood or overlooked by critics and would-be reformers. This article discusses five misconceptions that tend to pervade the criticism of conservation easements and result in proposals for reform that would be contrary to the public interest. This article also discusses three of the primary reforms suggested by Professor Korngold in his article, "Solving the Contentious Issues of Private Conservation Easements: Promoting Flexibility for the Future and Engaging the Public Land Use Process," 2007 Utah L. Rev. 1039, and why those reforms would be both unnecessary and inadvisable.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

August 25, 2009 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)