Wednesday, June 17, 2015
Gregory Alexander (Cornell) has posted The Sporting Life: Democratic Culture and the Historical Origins of the Scottish Right to Roam (Illinois Law Review) on SSRN. Here's the abstract:
In 2003, the Scottish Parliament enacted the Land Reform (Scotland) Act, which, among other reforms, grants to “everyone” a right to access virtually all land in Scotland for a wide variety of purposes, including recreation, educational activities, and even some commercial or for-profit activities. Legal recognition of this broad-ranging “right to roam” comes after more than a century of debate over the public’s right to access privately-owned land in the Scottish Highlands. This paper is the first historical account of the origins of the remarkable Scottish right to roam. It sets the debate over the right to roam with a clash between two different visions of the sporting life: One, older, rooted in the Victorian and Edwardian periods, viewed the sporting life as one of hunting, aided by the use of modern technology — rifles and such — and much older technology in the form of dogs and horses. The other vision is of more recent vintage. It is a vision of contact with nature through walking, hiking, and similar forms of unmediated interaction with nature. Curiously, both visions of the sporting life claimed the mantle of preservation and conservation. The paper argues that the culture of unmediated contact with nature ultimately prevailed as a democratic culture became more entrenched in both politics and society.
Tuesday, June 16, 2015
Mostly, Mexico. In 2012, for example, nearly 150,000 achieved legal status in the United States. As a result, Mexicans make up the largest groups of legal immigrants in 27 states. To make things more interesting, here's a map of the most common country of origin of legal immigrants (excluding Mexico):
Joseph Singer (Harvard) has posted We Don't Serve Your Kind Here: Public Accommodations and the Mark of Sodom (Boston University Law Review) on SSRN. Here's the abstract:
As part of a symposium celebrating the 50th anniversary of the Civil Rights Act of 1964, this article considers the role of public accommodations law in a free and democratic society. Public accommodations law is fundamental to a society that ensures equal rights of access to both private property and the free market. A society that allows businesses to choose their customers because of race or other factors such as sexual orientation can result in a caste system that is as rigid as any such systems imposed by statutory regulations. That is why a statute that allows businesses to choose customers without limit (such as the law in effect to this day in Mississippi) should be deemed unconstitutional if it enables businesses to engage in invidious discrimination.
Racial discrimination remains a significant problem in public accommodations today even though it is (almost) universally deplored. We are, however, living through a time when discrimination on the basis of sexual orientation is being vigorously debated and religious reasons for such discrimination are commonplace. Sorting out the rights of patrons versus the rights of businesses requires a full understanding of the role of public accommodation law in ensuring that access to social and economic life not be denied on the basis of race or sexual orientation.
Shelley Saxer (Pepperdine) has posted To Bargain or Not to Bargain? A Response to Bargaining for Development Post-Koontz (Florida Law Review Forum) on SSRN. Here's the abstract:
In this essay, Dean Saxer responds to Sean F. Nolon’s Bargaining for Development Post-Koontz: How the Supreme Court Invaded Local Government. The Supreme Court held, in Koontz v. St. Johns River Water Management District, that proposed local government monetary exactions from property owners to permit land development are subject to the same heightened scrutiny test as imposed physical exactions. In his article, Nolon explores whether such heightened scrutiny for proposed exactions will chill permit negotiations between local governments and developers. Nolon predicts that the Koontz decision will “impede developers’ ability to improve their projects in the development review process.” Saxer responds that the consequences of this decision are not as dire as predicted by Nolon and that developers and local officials will continue to work together for the benefit of both the developer and the community.
Friday, June 12, 2015
Alexandra Klass (Minnesota) has posted The Public Trust Doctrine in the Shadow of State Environmental Rights Laws: A Case Study (Environmental Law) on SSRN. Here's the abstract:
This Article looks at the relationship between state environmental rights statutes and the common law public trust doctrine. In addressing this issue, it focuses on the state of Minnesota, where, in the early 1970s, the state legislature enacted a far-reaching environmental rights statute, the Minnesota Environmental Rights Act (MERA), that served to codify many public trust principles. Beginning in the early 1970s and for the next forty years, litigants in Minnesota that might otherwise have brought common law public trust doctrine claims for environmental protection purposes instead channeled that litigation through MERA. As a result, Minnesota courts have rarely been asked to interpret or use the common law public trust doctrine at all in the context of environmental protection. And, more importantly, they did not have an opportunity to use and develop the doctrine during the time the environmental protection movement was at its height in the 1970s and early 1980s. Instead, the lyrical language many courts used in public trust doctrine cases in other states during that era to protect natural resources and expand the scope of the doctrine is found, in Minnesota, in MERA cases, not in public trust doctrine cases. This Article explores the implications of the underuse of the common law public trust doctrine in Minnesota by focusing on a 2012 case, White Bear Lake Restoration Association v. Department of Natural Resources, which is the first case to begin a new conversation on the common law public trust doctrine in the state — one that never took place in the 1970s. This case involves traditional public trust resources — a lake and a lakebed — as well as efforts by private citizens to compel the state to protect those resources for present and future generations, thus coming squarely within the purview of MERA and even the most narrow reading of the public trust doctrine. The state argued in part that MERA had replaced the common law public trust doctrine in Minnesota and that the doctrine on its own could not be used for environmental protection purposes, citing the lack of any relevant public trust doctrine cases. While the district court rejected these contentions, the arguments of the parties and the court’s analysis sheds light on the important relationship between the common law and state legislation in the context of public trust resources and environmental protection.
Thursday, June 11, 2015
John Dernbach (Widener) has posted The Potential Meanings of a Constitutional Public Trust (Environmental Law) on SSRN. Here's the abstract:
The Pennsylvania Supreme Court’s 2013 decision in Robinson Township v. Commonwealth (Robinson Township) has lawyers looking at the state’s constitutional Environmental Rights Amendment (Amendment) — including its public trust provision — as if it magically appeared in the state constitution on the date of the decision. The Amendment had been so thoroughly buried by judicial decisions that most lawyers had never given the text much thought. This Article describes the origin of the Amendment, the two primary cases decided shortly after it was adopted that effectively buried the Amendment, and the Robinson Township decision. It then surveys the wide range of issues that have arisen in the courts and other adjudicatory bodies in the immediate aftermath of Robinson Township and provides suggestions for how some of them should be resolved. Taken together, these cases provide a glimpse of what constitutionally protected environmental rights, including a constitutional public trust, could mean if the Pennsylvania courts continue to treat the Amendment as constitutional law.
Wednesday, June 10, 2015
The Washington Post chronicles a truly remarkable feud between two neighbors in the D.C. suburbs:
Thus passed another tense moment in what local officials say has become the town of Chevy Chase’s lengthiest, costliest, and most litigious neighborhood spat in recent memory. What began as a contested building permit six years ago has spiraled into a clash of wills, spawning five lawsuits, two misdemeanor convictions, arrests, anger-management classes, and a court order that Vollmer steer clear of the Schwartzes — or risk spending 18 months in the slammer.
[...] This squabble, silly though it may be, nonetheless explains big things around town. The town of Chevy Chase has undergone significant changes in aesthetic over the past 15 years as it has transitioned from a wealthy enclave of 1,000 homes into an evenwealthier enclave of 1,000 homes. In the “mansionization” of Chevy Chase, contractors have demolished dozens of smaller homes — called teardowns — to make way for palatial structures.
(HT: Ezra Rosser)
Climate change is projected to cause sea level rise, and an increase in the frequency and severity of extreme weather events. As most of Queensland's population is settled in coastal areas, these events pose a major threat to development. The Queensland government has recognised this threat, and recently released a new Coastal Plan and associated legislative amendments. This plan seeks to minimise new development along the coast, and increase the resilience of existing development. This article will analyse the new regime for coastal management in Queensland, and conclude that it represents a positive step forward in safeguarding against the predicted impacts of climate change.
Sara Bronin (Connecticut) has posted Energy in the Ecopolis (Environmental Law Reporter) on SSRN. Here's the abstract:
Climate change, resource scarcity, and environmental degradation demand a paradigm shift in urban development. Currently, too many of our cities exacerbate these problems: they pollute, consume, and process resources in ways that negatively impact our natural world. Cities of the future must make nature their model, instituting circular metabolic processes that mimic, embrace, and enhance nature. In other words, a city must be a regenerative city or, as some say, an “ecopolis.”
So, how to get there — to ecopolis — from here? In this Comment, I propose a partial answer by focusing on certain legal frameworks that must be reenvisioned to enable the ecopolis. Part II defines the ecopolis, drawing on accounts from leading thinkers. It then differentiates between regenerativity and the better-known concept of sustainability. That part also identifies the many facets of regenerativity, including food production, brownfield revitalization, integration with nature, waste management, water use, transportation, building considerations, and energy.
Part III then focuses on one of those facets: energy. The ecopolis must not only use less energy than our cities do today, it also must produce energy in a way that positively contributes to its surroundings. This means taking advantage of new generating technologies that harness renewable resources, such as biomass, sun, and wind, and that cleanly convert trash to energy. In addition, it means embracing distributed generation, located near the end-user it is intended to serve. Distributed generation, whether for individual end-users or for community energy projects, is an essential element of energy in the ecopolis.
Monday, June 8, 2015
Nicole Garnett (Notre Dame) has posted Old Suburbs Meets New Urbanism on SSRN. Here's the abstract:
This essay examines the growing popularity among inner ring suburban communities of new urbanist regulatory tools, including transect zoning and form-based codes. Given the demographic realities facing these communities, the essay raises concerns about the temptation to use legal regulation to "upscale" older suburbs and argues for more-organic, deregulatory approaches to redevelopment. The essay will be included in an edited volume entitled Infinite Suburbia (Alan Berger and Joel Kotkin, eds.).
Adrian Smith (Osgoode) has posted The Bunk House Rules: Housing Migrant Labour in Ontario (Osgoode Hall Law Journal) on SSRN. Here's the abstract:
The paper tackles the recent controversy surrounding an application to convert an abandoned school into housing for migrant agricultural workers in Ontario, Canada. It examines how the written reactions of community residents to a proposed municipal zoning by-law amendment convey and invoke understandings of the legal regulation of temporary labour migration. When viewed through a legal consciousness analytic lens, reconstituted to attend to the material practices and context underpinning residents’ discursive and ideological responses, what I term a ‘materialist legal consciousness studies’, it is evident that the residents’ submissions intervene in the organization and regulation of agricultural production. While framed in opposition to the proposed amendment and the rules on siting bunk houses, residents’ responses -- which rehearse well-worn, racist colonial tropes -- (re)produce material outcomes affecting the working and social lives of migrant agricultural workers in southwestern Ontario. I argue that residents’ overwhelming opposition to the bunk house proposal re-inscribes and even extends the unfree labour relations and conditions in which these workers toil and dwell. In so doing, residents perpetuate growers’ control not merely of labour power but in fact over racialized labouring bodies, deepening the regulatory immobilization and hyper-exploitation of migrant workers.
Friday, June 5, 2015
Over at Volokh Conspiracy, Eugene Volokh walks through a recent Fourth Circuit case on signs, Central Radio Co. v. City of Norfolk. The court held that a sign law that exempts governmental and religious emblems (as well as "works of art") is content-neutral. Volokh thinks the ruling is clearly wrong-headed:
Like Reed v. Town of Gilbert, 707 F.3d 1057 (9th Cir. 2012), cert. granted, 134 S. Ct. 2900 (2014), this should have been an easy case. A sign ordinance is content-based if it “distinguishes … between permissible and impermissible signs … by reference to their content.” Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 516 (1981) (plurality opinion). Norfolk’s sign code imposes size restrictions on some signs, like Petitioner’s, but exempts from regulation (1) “flag[s] or emblem[s]” of foreign and domestic governments and of “religious organizations,” and (2) “works of art.” Norfolk, Va., Code app. A, §§ 2-3; 16-5.2(a)(3), (a)(9).1 Such distinctions are facially content-based. Norfolk’s sign ordinance might not be motivated by disagreement with Petitioner’s ideas or turn on the viewpoint of speech. But under this Court’s precedent, such content classifications make a law content-based, even in the absence of improper legislative motive.
Nevertheless, the Fourth Circuit panel majority treated this facially content-based law as content-neutral — the exact opposite of the result reached by the Eighth Circuit in Neighborhood Enterprises, Inc. v. City of St. Louis, 644 F.3d 728 (8th Cir. 2011), and the Eleventh Circuit in Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1266 (11th Cir. 2005), which dealt with ordinances nearly identical to the Norfolk ordinance. Moreover, the Sixth and Ninth Circuits join the Fourth Circuit in treating similar facially content-based sign ordinances as content-neutral, while the First and Second Circuits join the Eighth and Eleventh Circuits in treating them as content-based.
University of Georgia Professors Joe Miller and Christian Turner put together a very cool law-themed podcast called "Oral Argument." Two recent episodes feature property professors talking about their work (and other good things):
Episode 63: A Struggle with Every Single One (guest Jessica Owley): Suppose you wanted to check out how our efforts to save endangered species are going. Our guest, Jessica Owley, tried to do that and to observe what is happening where habitat conservation plans have been put in place. Things didn’t go so well. We discuss the structure of the Endangered Species Act, snails, dams, the God Squad, “incidental take permits,” how it’s all supposed to work, and, mainly, how Jessica was stymied in her efforts to figure out how it actually is working.
Episode 59: Folly Bridges (guests Sarah Schindler and friends): Friend of the show and “Freaks and Geeks” extra Sarah Schindler returns to join us live at Oral Argument World Headquarters to talk about the exclusion we impose not through law but through building and architecture. We make an outdoor party of it with very special guests Paul Heald, Jessica Owley, and Justin Steil. (With so many of us gathered around three microphones, forgive us for a little more unevenness in levels than usual.)
Donald Kochan (Chapman) has posted Economics-Based Environmentalism in the Fourth Generation of Environmental Law (Journal of Environmental & Sustainability Law) on SSRN. Here's the abstract:
Environmental protection and economic concerns are not mutually exclusive. This article, written for a symposium on "Environmental Law 4.0: Adaptive and Resilient," explores some of the issues of economic analysis that might arise as we approach the fourth generation of environmental law. It explains ways that economic analysis can be employed to generate the best environmental rules, including measures under what this article terms as "economics-based environmentalism."
Economics-based environmentalism contends that the advantages of using economic principles within a “polycentric toolbox” of environmental law come from the benefits available in private ordering, markets, property rights, liability regimes and incentives structures that will better protect the environment than alternatives like state-based interventionist, prescriptive rules that lack the adaptability and tailored effect of economics-based rules. Economics-based environmentalism explains that environmental protection can be accomplished if the government sets rules that allow private markets to price resources, establishes enforceable rights in those resources, and allows individuals to freely trade such rights. To the extent that the state is unwilling to surrender substantial control to private actors and the market, economics-based environmentalism calls for the injection of these economic standards into the development of state-based regulatory law, hoping that those state laws will try to harness the economic ideas.
One proposal in the article calls for embedding in law a more stringent requirement that agencies prove the existence of market failure and the exhaustion of economic alternatives to governmental regulation before being allowed to proceed with any top-down, interventionist governmental regulation. The last portion of the article focuses on theories from law and economics, including those related to the self-perpetuating behavior of bureaucracies, public choice models of legislation and regulation, and capture theory as barriers to any effective reform in the emerging fourth generation of environmental law – whether it be those reforms proposed by others or even those suggested earlier in the article.
Paul Babie (Adelaide) has posted The Durability of Title: An Appraisal of Recent Developments in Australian Real Property Law on SSRN. Here's the abstract:
This article considers three recent Australian judicial developments in real property law that remind us just how frail, or lacking in durability, that title may be. In Payne v Dwyer the Supreme Court of Western Australia dealt with the operation of adverse possession to determine whether a co-owner might adversely possess another co-owner in a situation where the co-ownership of the mineral rights was found in a separate title to the land on which the minerals were found. In Willmott Growers Group Inc v Willmott Forests Ltd (Receivers and Managers Appointed) (in liq), the High Court held that the power of liquidators to disclaim leases would extinguish tenants’ proprietary rights; and in Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd, it held that an easement deliberately deleted, even wrongfully, from a Torrens land title register could not be ordered to be reinstated because such a deletion does not constitute an “omission” within the statutory exception to indefeasibility.
Thursday, June 4, 2015
Rashmi Dyal-Chand (Northeastern) has posted Housing as Holdout: Segregation in American Neighborhoods (Tulsa Law Review) on SSRN. Here's the abstract:
How far have people who are not African American gone to keep African Americans out of their neighborhoods? And how far might they go? These are the questions that link the three recent books on housing reviewed in this article: Jeannine Bell, Hate Thy Neighbor: Move-In Violence and the Persistence of Racial Segregation in American Housing; Richard R.W. Brooks and Carol M. Rose, Saving the Neighborhood: Racially Restrictive Covenants, Law and Social Norms; and Douglas S. Massey et al., Climbing Mount Laurel: The Struggle for Affordable Housing and Social Mobility in an American Suburb.
Wednesday, June 3, 2015
This story has just about everything: A contested lease, trusts, important American history, and old artifacts.
A bitter struggle for control over the nation’s oldest synagogue goes to trial this week, with lawyers saying they may use more than 1,000 exhibits dating as far back as 1733. The congregation that worships at the 250-year-old Touro Synagogue in Newport says its very existence is at stake. The congregation that owns it accuses the Newport congregation of lawlessness for agreeing to sell a pair of ceremonial bells valued at more than $7 million.
[...] Dedicated in 1763, the Touro Synagogue sits on a hill in this seaside town of Colonial homes and cobblestone streets. It is a National Historic Site and has been visited by three presidents: George Washington, Dwight Eisenhower and John F. Kennedy.
In the years that followed, Jews left the city, and the synagogue closed. Touro’s contents were transferred to the nation’s oldest Jewish congregation in New York, Congregation Shearith Israel, established in 1654. In the late 1800s, Jews re-established themselves in Newport and began worshipping there again. Congregation Shearith Israel sent the items back, including two pairs of rimonim, bells placed on the handles of a Torah scroll. They were made by Myer Myers, among the premier silversmiths of the Colonial era.
The question now is who owns the synagogue (and the bells), the congregation in New York or Newport.