Thursday, September 30, 2010

A Report on the Impacts of Deepwater Horizon

I've blogged before about an informal "2nd Friday Symposium" held by the River Basin Center here at UGA.  I wasn't able to attend the most recent event, so I asked Land Use Clinic student Greg Raburn to report.  Here's his summary (and accompanying culinary notes):

The convivial meeting started at 4:00 p.m., but, by the time I was able to get out of class, burn the roof of my mouth on a hastily-heated corn dog, and drive to the River Basin Center, the discussion had already begun  The room, which had the appearance of some type of student lounge, was nearly full, and the speaker, who must have been Professor Chuck Hopkinson of Marine Sciences and Director of the Georgia Sea Grant, with beer in hand, was describing the statistics and findings displayed on the projection screen.

He noted that while Savannah, as befitting one of the top U.S. seaports, was being monitored for contamination, Georgia’s southeast coast was not.  The oil, if or when it appeared on Georgia’s beaches, he stated, would probably look like tar-balls (which were essentially asphalt, he explained) or micro-droplets, and he and his group had made recommendations to Congressional staffers for detecting the presence of the oil and monitoring it.  He said much of the Gulf data was being collected by robotic “Seagliders,” manufactured by iRobot (the makers of the “Roomba” robotic home vacuum cleaner).  The gliders were designed to “glide” to the bottom of the ocean, collecting data from their surroundings, and then rise to the surface and transmit the data.  In addition to recommending using Seagliders off the Georgia coast, his group additionally recommended using fluorescent sensors, doing tar-ball counts, monitoring “sentinel” organisms, and utilizing satellite monitoring to collect additional data.

The next part of the discussion centered on the National Oceanic and Atmospheric Administration’s leaked press release which had stated that 74% of the released oil was “gone.”  The report naturally raised the question:  if 74% of the oil was truly gone, where did it go?  The press release claimed that 25% of the oil had dissolved or evaporated, 16% had been naturally dispersed, 8% had been chemically dispersed, 17% had never entered the water (captured at the surface), 5% had been burned, and the cleanup efforts had captured 3%, and therefore only 26% of the oil remained in the ocean.

Professor Hopkinson’s group decided to evaluate the data themselves.  The first thing they did was discard the figure for the 17% of oil that never entered the water; if some oil never entered the water, they felt it was misleading to include it on a report about the status of the oil in the water.  Professor Hopkinson’s group also figured in “degradation,” which, based from data from the Ixtoc oil spill off the coast of Mexico in 1979, was estimated at about 4%-8%.  His group ultimately concluded that the oil was not “gone,” but that most of it had simply changed into a form that rendered it uncollectable.

The University of Georgia and the Georgia Sea Grant testified before a [Georgia] Senate subcommittee regarding Georgia’s vulnerability to the oil spill.  The Senate subcommittee charged the Georgia Department of Natural Resources to develop an oil sampling plan.  Three things were to be sampled:  water columns, hard bottom, and fish.  If oil were found in these things, then two additional things would then be sampled:  sediment and hydrodynamics.  Unfortunately, I am unable to provide further details on this part of the discussion, as it went well beyond my limited knowledge of marine science and ecology.

As a side note, Professor Hopkinson also observed that British Petroleum (BP) is selling or has sold off its terrestrial U.S. wells, put its shallow water wells up for sale, and is currently expanding its deepwater drilling in areas with little regulation, such as Africa and Brazil.  He suggested this could have been a counterproductive consequence of the recent U.S. sanctions on BP and the restrictions on deepwater drilling.  He pointed out that the well currently being drilled in Brazil, will be at almost twice the depth of the Deepwater Horizon.

Professor Hopkinson closed by saying that the University of Georgia Sea Grant website on the oil spill could be found at, with additional information at,,  and

In conclusion, I found the science and statistics of the discussion to be rather interesting.  I had to glean the meaning of much of the technical language from the context in which it was used.  The symposium was definitely geared toward someone with more of a background in environmental and marine science than myself, but the group was open and friendly, and a small variety of refreshments were available – including a bowl of dried, multicolored, tubular things that, in size and shape, resembled McDonald’s French Fries.  I had to try one.  It tasted kind of like a pretzel.  I still have no idea what it was.

Jamie Baker Roskie

September 30, 2010 in Conferences, Environmentalism, Georgia, Oil & Gas, State Government, Water | Permalink | Comments (0) | TrackBack (0)

Lucy's UVa Report on a Different Path to a Housing Rebound

William Lucy (Virginia--urban & environmental planning) has authored a report titled A Different Path to a Housing Rebound.  From the UVa press release:

September 24, 2010 — Changing demographics are the main cause of today's housing surplus, according to new research by a University of Virginia urban and environmental planning professor. The path to a housing market rebound doesn't lie in new construction, William Lucy found, but in rethinking housing needs based on changing demographics.

Lucy based his report on a review of U.S. Census Bureau data, U.S. Housing Market Conditions: Historical Data, U.S. Department of Housing and Urban Development reports, Joint Center for Housing Studies and research by the Urban Land Institute and other scholars.

"Surplus housing is not caused by either excessive new construction or by foreclosure," Lucy said, noting that only 20 percent of housing units for sale or sold in 2009-10 were new houses and foreclosures. 

The press release webpage includes a short, informative YouTube interview with Prof. Lucy.  There is also a link to the report and to his supporting data tables.  He concludes that the future of the housing market is in recognizing the demand for housing options based on location and demographics.  

More decentralized, multidimensional and shared solutions by developers, builders and government are required, and opportunities for fix-up, remodeling, expansion and condominium projects in cities and inner suburbs, fueled by preferences for convenient locations, will be the economic driver in the housing market in the future, Lucy predicts.

"Revival of housing may be slower than many wish, and it will not be a full early partner in moving employment toward its previous peak," Lucy said. "It is time to move on to a richer, more varied and enhanced quality of life with the convenience and energy efficiency that denser settlements can provide."

Matt Festa

September 30, 2010 in Housing, Mortgage Crisis, Real Estate Transactions, Scholarship, Suburbs, Urbanism | Permalink | Comments (0) | TrackBack (0)

Lawson-Remer on Security of Property Rights for Whom?

Terra Lawson-Remer (New School University) has posted Security of Property Rights for Whom?  The abstract:

Protecting the entitlements of some inherently requires preventing others from claiming and controlling those same resources. Yet much recent research regarding property rights and economic development treats the level of property rights security in a country as homogeneous. This one-dimensional conception of property rights ignores significant variation in the risk of expropriation faced by different groups in the same country. Using a new set of indicators that measures the property insecurity of ethno-cultural minorities, this article finds that, in many countries, members of marginalized groups face significantly higher property insecurity than foreign investors and domestic elites. Unsurprisingly, the allocation and enforcement of resource entitlements through legal institutions reflects the distribution of political power. The cross-national indices of institutional quality widely used in the research literature - initially designed to assess the property security of foreign investors - fail to consider marginalized minority groups. It has been widely argued that secure private property rights are a prerequisite for economic development. This article shows that it fundamentally matters whose property rights are secure. Based on the new bottom-up measure of property insecurity, this article finds that although secure property rights for elites and foreign investors may be positively related to long-run development, property rights for marginalized groups are not. Aggregate long-run growth occurs in the presence of significant property insecurity for marginalized minorities.

Matt Festa

September 30, 2010 in Comparative Land Use, Economic Development, Property Rights, Scholarship | Permalink | Comments (0) | TrackBack (0)

The Passing of Ken Groves...

Sorry about the recent dearth of posts.  Here in Montgomery, we recently lost our visionary planning director Ken Groves after a short battle with cancer and its been a trying time. 

Here is an article that discusses the great planning revival that Ken led in Alabama's state capital as well as an editorial on his legacy.

Chad Emerson, Faulkner U.

September 30, 2010 | Permalink | Comments (1) | TrackBack (0)

Tuesday, September 28, 2010

Mirow on the Social-Obligation Norm of Property

M.C. Mirow (Florida International) has posted The Social-Obligation Norm of Property: Duguit, Hayem, and OthersFlorida Journal of International Law, Vol. 22, pp. 191-226, 2010 .  The abstract:

This article discusses and analyzes the sources and methods used by Leon Duguit in constructing the social-obligation or social-function norm of property as set out in an influential series of lectures in Buenos Aires published in 1912. The work of Henri Hayem has been underappreciated in the development of Duguit's ideas. Hayem should be restored as a central influence on Duguit's thought and as one of the main and earliest proponents of the idea of the social-function norm. The article also examines the influence of Charmont, Comte, Durkheim, Gide, Hauriou, Landry, and Saleilles in Duguit's thought on property and its social function.

Of course Mirow's invocation of the social-obligation norm builds on Gregory Alexander's recent work and the Statement of Progressive Property (a/k/a the "Cornell Manifesto") that highlighted last year's fascinating special issue from the Cornell Law Review.  

Matt Festa

September 28, 2010 in Property Rights, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Zasloff on the Secret History of the Fair Housing Act

Jonathan Zasloff (UCLA) has posted The Secret History of the Fair Housing Act.  The abstract:

The dominant scholarly consensus holds that the Fair Housing Act of 1968 was “toothless” and devoid of enforcement; in the words of the pre-eminent scholars of US housing segregation, it was “purposefully designed so that it would not and could not work.” This Article demonstrates that this consensus is wrong, that in fact the Fair Housing Act contained ample enforcement mechanisms. Moreover, it reveals the “secret history” of the Fair Housing Act, namely, that it passed in 1968 not through Congressional perfidy but rather through a classic political deal between President Lyndon Johnson and Senate Republican Leader Everett Dirksen: Dirksen would support a compromise on fair housing in exchange for Johnson ensuring that Dirksen would face a weak opponent in his re-election bid. These conclusions force us to reconsider fundamentally the history of housing discrimination and segregation in the United States since the passage of the Act, and re-think how housing integration might be achieved in the future.

An important new interpretation of the history of this landmark statute.  

Matt Festa

September 28, 2010 in Affordable Housing, Federal Government, History, Housing, Politics, Scholarship | Permalink | Comments (0) | TrackBack (0)

Designing Tomorrow: America’s World’s Fairs of the 1930s

The National Building Museum has announced a new exhibition: Designing Tomorrow: America’s World’s Fairs of the 1930s, from Oct. 2 (Saturday!) thru July 10, 2011.  It sounds absolutely fascinating:

Between 1933 and 1940 tens of millions of Americans visited world's fairs in cities across the nation.Designing Tomorrow will explore the modernist spectacles of architecture and design they witnessed -- visions of a brighter future during the worst economic crisis the United States had known. The fairs popularized modern design for the American public and promoted the idea of science and consumerism as salvation from the Great Depression. . . . 

A first-of-its-kind exhibition, Designing Tomorrow will feature nearly 200 never-before-assembled artifacts including building models, architectural remnants, drawings, paintings, prints, furniture, an original RCA TRK-12 television, Elektro the Moto-Man robot, and period film footage. The artifacts are drawn from the featured expositions: Chicago, IL—A Century of Progress International Exposition (1933–34); San Diego, CA—California Pacific International Exposition (1935-36); Dallas, TX—Texas Centennial Exposition (1936); Cleveland, OH—Great Lakes Exposition (1936-37); San Francisco, CA—Golden Gate International Exposition (1939-40); and New York, NY—New York World's Fair (1939-40).

These world's fairs had a profound influence on American culture and ideals for land use.  I've blogged about the 1893 Chicago Columbian Exposition before and its impact on the origins of land use planning.  This group from the 1930s also had a profound impact on Americans' notions of modernism, suburbia, and even on the inspiration for Disney World (hey Chad!).  Can't wait to see this next time I'm in DC.  If you're going to ALPS in March, the National Building Museum is only a couple of blocks away from Georgetown Law, so definitely plan to check it out!

Matt Festa

September 28, 2010 in Architecture, California, Chicago, Conferences, Development, History, New York, Planning, Suburbs, Texas, Urbanism | Permalink | Comments (0) | TrackBack (0)

Planning the Future of Your Farm

Last Thursday I attended a workshop on "Farm and Estate Transition and Conservation Easements,"sponsored by the Madison-Morgan Conservancy at the Burge Plantation outside Madison, Georgia. The audience was a mix of landowners and lawyers interested in helping farm owners conserve their land and pass their farms onto future generations.  This is a very interesting twist on estate planning, and I learned the value of having a qualified lawyer as an adviser on farmland transition.  For example, according to Allen H. Olsen, a agriculture law specialist, traditional estate planning can sometimes create governance structures that make the farmer ineligible for farm subsidy programs, thus undermining the farm's ability to survive.

The Rolling Hills Resource Conservation and Development Council has published "Planning the Future of Your Farm: A Workbook Supporting Farm Transfer Decisions."  I've only had a chance to scan through the Table of Contents, but the book seems to be chock full of tools for planning family meetings, evaluating farm resources, and drafting farm transfer tools.  It looks like a great resource for anyone working with farmers interested in effectively planning for the future.

Jamie Baker Roskie

September 28, 2010 in Agriculture, Conferences, Conservation Easements, Georgia | Permalink | Comments (0) | TrackBack (0)

Arnold on Fourth-Generation Environmental Law

Craig Anthony (Tony) Arnold (Louisville) has posted Fourth-Generation Environmental Law: Integrationist and Multimodal.  The abstract:

Institutional arrangements to protect the environment, manage natural resources, or regulate other aspects of society and the environment are not merely matters of optimal institutional design or choice. These arrangements result, at least in substantial part, from the evolution of interconnected social, legal, and ecological systems that are complex, dynamic, and adaptive. This article makes the case that environmental law is evolving to become more integrationist and multimodal: the use of multiple modes and methods of environmental protection, often across multiple scales, but in integrated ways. Integrated multimodality is a feature of much of social life. Building on generational analyses of environmental law and exploring complex problems at the intersection of climate change, land use, and water, this article contends that environmental law is undergoing pressure to adapt, because unimodal (“one-size-fits-all”) and fragmented approaches to environmental problems are proving inadequate. On one hand, a variety of psychological, socio-structural, political, economic, and normative forces converge to produce unimodal fragmentation. On the other hand, several phenomena – “wet growth” policies that integrate water quality and conservation into land use planning and regulation; watershed planning and management; and local climate change action plans – reflect the evolution of integrationist multimodality. These examples illustrate four nodes of connectivity by which multiple modes are integrated, and also suggest that integrationist and multimodal developments are occurring and will occur at the edges of environmental law. However, integrationist multimodality may not necessarily produce better environmental protection and therefore much be studied as an emerging phenomenon in environmental law that can help us to understand better the functions and limits of environmental law.

Looks like another must-read from Tony Arnold for anyone working at the intersection of environmental and land use law.

Matt Festa

September 28, 2010 in Climate, Environmental Law, Environmentalism, Planning, Property Theory, Scholarship, Sustainability, Water | Permalink | Comments (0) | TrackBack (0)

Mixon on Land Use Vignettes in (Unzoned?) Houston

I blogged recently on the publication of the Notre Dame Symposium on Urban Development.  John Mixon (U. of Houston) has just posted to SSRN his contribution, Four Land Use Vignettes from (Unzoned?) Houston.  The abstract:

Houston has been called "the hair shirt of city planners." The profession's discomfort stems from the city's repeated rejection of land use zoning – the essential tool of their craft. The unrepentant city touts itself as a model of enlightened differentness: a public-private combination that provides a better formula for managing growth in a modern city. But beneath that Chamber of Commerce gloss, Houston's land use is a far cry from free enterprise in action.

What this article calls "The Houston Way" combines: (1) An adamant refusal to use government power prospectively to guide growth and protect existing investment; with (2) A willingness to respond to specific developer-citizen conflicts with ad hoc solutions that assign the City Planning Commission a unique role in mediating the constant battle between homeowners and developers. Rejection of traditional land use solutions oftentimes places the city at the borderline between legal and not-so-legal regulation.

Of course, as an observer of land use in the Unzoned City, I find this fascinating.  Prof. Mixon is the leading academic authority on local government zoning in Texas (and on non-zoning in Houston).  Read the whole thing.

Matt Festa  

September 28, 2010 in Conferences, Development, Houston, Local Government, Planning, Politics, Property, Scholarship, Zoning | Permalink | Comments (0) | TrackBack (0)

Cole on Property Creation by Regulation

Daniel H. Cole (Indiana-Indianapolis) has posted what looks like another interesting article, Property Creation by Regulation: Rights to Clean Air and Rights to Pollute.  The abstract:

This paper, prepared for a Lincoln Institute conference on "Evolution of Property Rights Related to Land and Natural Resources," argues that, contrary to both the suppositions of some legal scholars and the theoretical underpinnings of Regulatory Takings doctrine, government regulations do not only impose on existing private property rights but also vindicate, and sometimes even create, public, private, and/or common property rights. 

After examining conflicting common law and Roman law rules relating to property rights in the atmosphere, the paper focuses on how assertions of state sovereignty and regulations combine to create Hohfeldian rights and duties respecting the atmosphere, where none previously existed or were unclear. An explicit (but hardly novel) claim is advanced that acts of sovereignty themselves amount to assertions of public property. The claim is supported by evidence from both civil aviation regulation and air pollution control. The paper also addresses how regulations have created private property rights to pollute in emissions trading programs (regardless of congressional assertions to the contrary). In some cases, assertions of public property via acts of sovereignty are a prerequisite to the allocation of private property rights, and not just in the atmosphere but in other natural resources, such as marine fisheries. 

The paper concludes with a discussion of normative implications for property theory generally and Regulatory Takings doctrine in particular. A more dignified treatment of public regulations that are designed to protect public rights would raise a serious question about which set of property rights should prevail in the several Regulatory Takings cases where privately-owned lands meet publicly-owned waters. That question cannot, however, be answered reasonably until a theory (or multiple theories) of public property are better developed to complement existing theories of private and common property. So, the paper ends with a call for more research into the theory and empirics of res publica (beyond equally naive public interest and public choice models).

I find the idea that government regulation creates property rights to be particularly fascinating.  I've considered it before in the context of zoning-- we usually focus on the question of whether new zoning restrictions effect a regulatory taking.  But when you buy into an existing zoning scheme, does the regulatory regime comprise part of your investment-backed expectations?  It could be an important question for advocates of deregulation.  Putting that tangent aside, it is certainly important for the environmental issues that Cole addresses in this interesting paper.  

Matt Festa

September 28, 2010 in Environmental Law, Environmentalism, Property Rights, Property Theory, Scholarship, Takings, Water, Zoning | Permalink | Comments (1) | TrackBack (0)

Monday, September 27, 2010

Crespi on Green Cards for Home Buyers

Gregory Crespi, has published Green cards for foreign house buyers: a way to help stabilize housing prices in the Tulsa Law Review.

In a recent and provocative Wall Street Journal editorial, Richard Lefrak and Gary Shilling have set forth the broad outlines of a proposed change in federal immigration law that would allow the United States Citizenship and Immigration Services (USCIS) to award "green cards" - conditional and eventually permanent resident status that would allow those persons to live in the U.S. and seek employment here if they chose to do so - to foreigners who purchase houses in the U.S. Such a change would not impose any additional burden on taxpayers, and Lefrak and Shilling have argued that it would result in significantly increased demand for US housing that would help to absorb the current excess inventory of approximately 2.4 million unsold homes that is exerting further downward pressure on housing prices. If they are at all accurate in their expectations as to the likely popularity of such a visa program, this would surely help to stabilize housing prices more quickly and at higher levels. They also argue in their editorial that there is already in place a "blueprint" for such a program in the USCIS's current EB-5 investor visa program under which up to 10,000 visas per year can be granted to foreigners who invest sufficient funds in a U.S. business to create at least 10 new full-time jobs.

However, Crespi notes that the EB-5 program has been a "dismal failure" that would serve as a poor model for this new category of visa.  Given the worsening climate on immigration, this proposal seems unlikely to be adopted. However, it certainly shows some creative thinking on how to bring some much needed demand into the housing market.

Also, given Chad's post for today, it seems like some of the commentators on the housing market are seeing immigrants as a potential saving force for the US economy - that's an interesting shift in the zeitgeist, which has some politicians calling for ever more restrictive reforms to the immigration system.

Jamie Baker Roskie

September 27, 2010 in Housing, Scholarship | Permalink | Comments (1) | TrackBack (0)

Saturday, September 25, 2010

Kotkin: Why Housing Will Come Back

On his New Geography blog for Forbes, Joel Kotkin has an essay on why he thinks there will be a resurgence in the housing market starting later this decade: Why Housing Will Come Back.  He begins with a historical observation:

Few icons of the American way of life have suffered more in recent years than  homeownership. Since the bursting of the housing bubble, there has been a steady drumbeat from the factories of futurist punditry that the notion of owning a home will, and, more importantly, should become out of reach for most Americans.

Before jumping on this bandwagon, perhaps we would do well to understand the role that homeownership and the diffusion of property plays in a democracy. From Madison and Jefferson through Lincoln’s Homestead Act, the most enduring and radical notion of American political economy has been the diffusion of property.

Kotkin then notes that in recent years, and especially in light of the mortgage crisis, the single-family homeownership ideal has been criticized from both the right (government overpromotion) and the left (sprawl, new urbanism, environmentalism).  His response:

Yet for all the problems facing the housing market, homeownership–not exclusively single-family houses–is not likely to fade dramatically for the foreseeable future. The most compelling reason has to do with continued public preference for single-family homes, suburbs and the notion of owning a “piece” of the American dream.   This is why that four out of every five homes built in America over the past few decades, notes urban historian Witold Rybczynski, have less to do with government policy than “with buyers’ preferences, that is, What People Want.

Kotkin goes on to explain several reasons why he believes housing will come back, after adjusting to the market correction imposed by the economic recession.  Why I find most interesting is that his prediction is based less on economics or law than on demographics:

As boomers age, the two big groups that will drive housing will be the young Millenial generation born after 1983 as well as immigrants and their offspring. Sixty million strong, the millenials are just now entering their late 20s. They are just beginning to start hunting for houses and places to establish roots. Generational chroniclers  Morley Winograd and Mike Hais, describe millenials in their surveys as family-oriented young people who value homeownership even more than their boomer parents. They also are somewhat more likely to choose suburbia as their “ideal place to live” than the previous generation.

These tendencies are even more marked among immigrants and their children. Already a majority of immigrants live in suburbia, up from 40% in the 1970s. They are attracted in many cases by both jobs and the opportunity to buy a single-family home. For an immigrant from Mumbai, Hong Kong or Mexico City, the “American dream” is rarely living in high density surrounded by concret

An interesting take.  For more writings on urban theory from the center-right perspective (e.g., Why we Have to Learn to Love the Subdivision--Again) see Kotkin's New Geography website. 

Matt Festa

September 25, 2010 in Density, Development, Environmentalism, Housing, Mortgage Crisis, New Urbanism, Planning, Real Estate Transactions, Sprawl, Suburbs, Urbanism | Permalink | Comments (0) | TrackBack (0)

Friday, September 24, 2010

Adler on Revisiting the Fundamental Principles of the Clean Water Act

Robert W. Adler (Utah) has posted Resilience, Restoration, and Sustainability: Revisiting the Fundamental Principles of the Clean Water Act, Washington U. Journal of Law and Policy, Vol. 32, p. 139 (2010).  The abstract:

The last truly significant revisions to federal water pollution legislation (the “Clean Water Act” or “CWA”) occurred in 1972. The CWA has been among the nation’s more successful environmental statutes, especially with respect to control of point source discharges of pollutants into surface waters. However, when viewed from the broader statutory objective to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” the statutory tools are either too dull to accomplish the task, or in some cases the appropriate tools have yet to be forged at all. In this Article, I argue that the focus of the CWA should be modified or expanded in four ways. First, we need to make better use of current concepts of ecosystem resilience rather than the notion of ecosystem “stability” that prevailed when the 1972 law was passed. Second, we need to develop the statutory and other tools necessary to press forward with the restoration goal of the statute. Third, we need to pursue the long-recognized statutory gap in redressing non-industrial forms of water pollution from a much wider range of sources than traditional industrial and municipal point source discharges. Finally, we need to revise our definitions of “waters” and “waters of the United States” to focus on the sustainability of aquatic ecosystems for human and natural uses, rather than on the antiquated concept of navigability.

Matt Festa

September 24, 2010 in Environmental Law, Environmentalism, Federal Government, Scholarship, Sustainability, Water, Wetlands | Permalink | Comments (0) | TrackBack (0)

Alexandre on Navigating the Topography of Inequality Post-Disaster

Michele Alexandre (Mississippi) has posted Navigating the Topography of Inequality Post-Disaster: A Proposal for Remedying Past Geographic Segregation During Rebuilding, a chapter from the book Law and Recovery from Disaster: Hurricane Katrina, edited by Robin Paul Malloy for the Ashgate series on Law, Property, and Society (2009).  The abstract:

In this chapter, I argue that New Orleans’ history of geographic segregation mandates that the burden of restoring the city be shared by all United States citizens. One useful method for implementing this nationwide burden sharing would be to levy a uniform one to two percent tax based on individuals’ income. This uniform tax would be minimal and would be consistent with other taxes raised for the public good, such as the security taxes levied on air travel post September 11, 2001. The funds accumulated from levying the taxes can be used to address some of the financial needs of individuals in disaster stricken areas. This proposal is consistent with the theory of burden-sharing based on ability to pay, which is sometimes used to allocate proportional responsibility among diverse and differently situated individuals. In the international realm, this principle has sometimes been applied in the face of a need “for nations to share in joint and sometimes costly projects for the common good.” (See Daniel A. Farber, Disaster Law and Inequality, 25 Law & Ineq. 297, 320 (2007) (stating: “Social disadvantage can kill in very obvious ways during a disaster” and noting President Bush’s statement that “the poverty of so many in the region ‘has roots in a history of racial discrimination’”).

Consistent with this practice, the burden-sharing based on ability to pay “rests on equal sacrifice notions and implies either proportional or progressive tax schedules.” (Id. at 313–314 n.14). Comprehensive disaster insurance is one of the solutions that have been advanced to alleviate financial needs in times of disaster. This solution, however, because it shifts the burden of remedying the financial woes caused by disaster onto the disaster stricken individuals, does not fully achieve equity. In shifting the burden of providing remedies to the would-be-harmed individuals, the comprehensive disaster insurance proposal does not account for the role that residential and occupational segregation have had on individuals’ choice of geographic residence. This burden should be shared as a way of holding the other cities and states accountable for their silent ratification of these types of geographic segregation. Furthermore, this model of burden-sharing should not be limited to the restoration of New Orleans. It should be implemented in all instances where we can demonstrate that certain groups have historically been pushed out of geographically safe and desirable regions of the United States, being forced to live in precarious and dangerous areas. This chapter is divided into three parts. In the first, I investigate the ways in which cities have been geographically segregated and continue to be so today through various land-use related municipal decisions. In the second, I consider how geographical segregation has caused disproportionate harm in New Orleans. In the third, I argue that remedying New Orleans’ geographical segregation should be one of the primordial goals of the rebuilding efforts and I enunciate a standard that can be used to determine whether rectifying geographical segregation should play a role in disaster prevention as well as in post-disaster rebuilding plans.

Matt Festa

September 24, 2010 in Federal Government, History, Planning, Politics, Property, Race, Redevelopment, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, September 23, 2010

DOJ Report on RLUIPA at 10 Years

The Department of Justice this week issued a report on its decade of enforcement actions since the enactment of the Religious Land Use and Institutionalized Persons Act (RLUIPA).  From the press release:

RLUIPA protects places of worship and other religious uses of property from discrimination and unreasonably burdensome regulation in zoning and landmarking law, and also protects the religious freedom of persons confined to institutions such as prisons, mental health facilities and state-run nursing homes.   RLUIPA was enacted by both houses of Congress unanimously and signed into law on Sept. 22, 2000.   The law was a response to concerns that places of worship, particularly those of religious and ethnic minorities, were often discriminated against in zoning matters.


The report illustrates that in the 10 years since its enactment, RLUIPA has aided thousands of individuals and institutions from a wide range of faith traditions through Department of Justice lawsuits, private lawsuits, and successful efforts to achieve voluntary compliance.

More information can be found in the full Report on the Tenth Anniversary of the Religious Land Use and Institutionalized Persons Act.

Matt Festa

September 23, 2010 in Constitutional Law, Federal Government, First Amendment, Historic Preservation, RLUIPA, Zoning | Permalink | Comments (0) | TrackBack (0)

Cole & Ostrom on Property Systems and Rights in Natural Resources

Daniel H. Cole (Indiana-Indianapolis, Law) and Elinor Ostrom (Indiana-Bloomington, Political Science) have posted The Variety of Property Systems and Rights in Natural Resources--An Introduction.  The abstract:

Property theory has not kept pace with the growth of empirical and historical information on property systems. This paper, prepared for a Lincoln Institute conference on "The Evolution of Property Systems and Rights Related to Land and Natural Resources": (a) introduces conventional theories of property rights in natural resources (based largely on Hardin 1968 and Demsetz 1967); (b) addresses issues in the construction and meaning of property rights and systems; (c) describes the findings of social scientists from decades of field and experimental research about the structure and performance of existing property systems; and (d) calls on property scholars to move beyond "naive" and simplistic theories of property rights in light of the wealth of empirical evidence demonstrating the variety of successful property regimes in use.

Matt Festa

September 23, 2010 in Environmental Law, Property Rights, Property Theory, Scholarship, Sustainability | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 22, 2010

EJ Conference at FAMU

Thanks to John Bonine for the heads' up about this:

Florida A&M University (FAMU) College of Law and the FAMU Center for Environmental Equity and Justice invite you to attend "New Directions in Environmental Justice, An Environmental Law and Justice Symposium," Friday, November 12, 2010, 8:30 a.m. on the law school campus, 201 Beggs Avenue, Orlando, Florida 32801. The symposium will feature an overview of the latest international, national, state, regional and local developments in Environmental Justice. Continuing Legal Education credits (CLE) are available.


Opening Keynote:  Dr. Beverly Wright, Founder and Director of Deep South Center for Environmental Justice in New Orleans

Luncheon Keynote: Mr. Quentin Pair, Esq., U.S. Department of Justice

Closing Keynote: Prof. Maxine Burkett, University of Hawaii School of Law

The cost is $50.00 for the General Public; $35.00 for FAMU Alumni and Environmental Law Attorneys.  To learn more, visit Or, contact Professor Randall Abate, event coordinator, at, or at 407-254-4044.

Jamie Baker Roskie

September 22, 2010 in Conferences, Environmental Justice | Permalink | Comments (0) | TrackBack (0)

Lovett on Progressive Property in Action

John A. Lovett (Loyola--New Orleans) has posted Progressive Property in Action: The Land Reform (Scotland) Act 2003.  The abstract:  

This article responds to a material deficit at the heart of American property law scholarship. For years, property scholars have debated whether the right to exclude deserves to be the centerpiece of our property regime in the United States. This article seeks to transform that debate by introducing to an American audience a remarkable piece of property legislation recently enacted in Scotland. Part I of the Land Reform (Scotland) Act 2003 creates a right of responsible, non-motorized access across almost all land and in-land water in Scotland, private as well as publicly owned, for purposes of recreation, education and passage. This legislation thus reverses the traditionally robust, ex ante presumption in favor of a landowner’s right to exclude and replaces it with an equally robust, ex ante presumption in favor of the public’s right of responsible access. By introducing this new property right in Scotland and creating an entire property regime to contextualize the right, a regime that is much bolder, in fact, than has been established in England and Wales under the better known Countryside and Rights of Way Act 2000, Scotland has provided property scholars with a case study in property law institutional design that is unique in modern legal systems. This article will demonstrate how the LRSA reveals that it is possible for a property regime to promote the ends of human flourishing without necessarily sacrificing all of the efficiency gains and coordination benefits that flow from the common law’s traditional preference for rules of exclusion.
Matt Festa

September 22, 2010 in Comparative Land Use, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 21, 2010

Batchis on Euclid and Urban Sprawl

Wayne Batchis has published Enabling urban sprawl: revisiting the Supreme Court's seminal zoning decision Euclis v. Ambler in the 21st century in the Virginia Journal of Social Policy & the Law.  Here's the abstract:

Today, many urbanists look back at our built environment with bemusement. The outcome of over fifty years of post-war suburbanization has fundamentally reshaped America's manmade landscape. From coast to coast, amorphous urban sprawl envelops America as far as the eye can see - and scholars have just begun to struggle to understand its causes and assess its impact. In this article I examine the phenomenon of urban sprawl and its relationship to exclusionary zoning. I argue that the Supreme Court in 1926 played a key role in enabling sprawl though its permissive zoning jurisprudence in Euclid v. Ambler. Had the Court scrutinized America's early zoning laws with greater rigor, these laws could have been deemed constitutionally suspect - effectively stopping sprawl in its tracks. I conclude by exploring four significant flaws of the Euclid decision in light of the modern epidemic of sprawl.

 Jamie Baker Roskie

September 21, 2010 in Scholarship, Sprawl, Zoning | Permalink | Comments (1) | TrackBack (0)