Land Use Prof Blog

Kratzke on Russia's New Land Code

William P. Kratzke (Memphis) has posted Russia's New Land Code: A Two Percent Solution, from the Minnesota Journal of International Law, Vol. 12.  The abstract:

On October 25, 2001, President Vladimir Putin signed the Land Code of the Russian Federation into law. Factions in the Duma extensively debated the proposed Land Code during the 1990s. The communists and agrarians essentially had argued for a throwback to the bad old days. The new law only applies to 2% of all the land in Russia – but a very valuable 2%, i.e., urban land and dacha property. The Code provides opportunities for great success or failure. It is partly a zoning law, an environmental law, an eminent domain law, a historical preservation law, a “Superfund” law, a private trespass law, and a nuisance law. The Code also reflects Russia’s traditional concern for agriculture. It establishes principles of federalism in land matters by delineating the respective regulatory authorities of the Russian Federation, the regions, and municipalities. The new Land Code recognizes principles of private ownership that include the right to sell land – necessary conditions to its efficient use. The Soviet system of state ownership rejected these principles. Much of the new Land Code does not create any new or unfamiliar principles. However, the very breadth of the Code should sweep within its scope, or sweep away, any number of federal, republic, and local laws. In subtle ways, the Code acknowledges various shortcomings of local government officials. This article provides a first look at the new Land Code, reviews its provisions, and raises some legal and practical questions that will need resolution.

Matt Festa

Craig on Public Trust and Public Necessity Defenses to Taking Liability for Sea-Level Rise Responses

Robin Kundis Craig (Florida State) has posted Public Trust and Public Necessity Defenses to Taking Liability for Sea-Level Rise Responses on the Gulf Coast, forthcoming in the Journal of Land Use & Environmental Law.  The abstract:

The states bordering the Gulf of Mexico - Texas, Louisiana, Mississippi, Alabama, and Florida - face numerous challenges in coastal management along those shores, one of which is rising sea levels. Given the threats that sea-level rise and associated climate change impacts pose to public health and welfare, increased state and local government action in and regulation of the Gulf coast is virtually inevitable.

However, government action regarding the Gulf coast that limits or otherwise affects private property rights leaves state and local governments vulnerable to claims that those governments have taken private property in violation of the federal Constitution. Such vulnerability, however, is not absolute. As the U.S. Supreme Court recognized in Lucas v. South Carolina Coastal Council, no unconstitutional taking of private property occurs if the property owner’s claimed rights were never part of that owner’s title to begin with. As a result, certain “background principles” of state property law shield governmental action from taking liability, even if that action interferes with or prohibits a landowner’s desired use of the property.

This Article examines two of these “background principles” of state property law - state public trust doctrines and the doctrine of public necessity - to assess their abilities to insulate state and local coastal regulation from landowner claims of regulatory takings in the Gulf of Mexico states. It concludes that state and local governments in Gulf states generally have more tools to protect the coast than are generally acknowledged and that their defenses to coastal takings claims will become increasingly stronger as sea-level rise and coastal deterioration emerge as true emergencies and public health crises.

Matt Festa

Another Lost Opportunity...

I'm a strong believer in the idea that our country's decision to invest roughly $200 billion in the interstate was one of the first missteps we took on the road toward the unsustainable sprawl set-up we have today.

This article further bolsters my view of that.  Indeed, it appears that as we were investing in miles upon miles of concrete as our near exclusive national approach to moving people and products, many other developed countries (including a recently defeated Japan) were opting to incorporate effective rail travel as a key component of their transportation strategy.

The real kicker is that many of these nations were actually using American technology to do this:

So carelessly tossed away by our policymakers and politicians, the American streamliner did not simply die during those dismal decades of the 1950s and 1960s. Instead, it rose from the ashes as its key technological features moved overseas, welcomed by a visionary group of railroaders.

...

This is what happens when you starve a business for 60 years. It becomes stunted. Our passenger rail system is stunted today not because of some inevitable law of economics or natural outgrowth of competition. It’s stunted because of longstanding government policy that thoughtlessly, absentmindedly, let some wonderful American-made technology slip away.

Now, granted, the United States is larger than most of these countries (though, today, China is building fast, advanced trains across wide swaths of its landscape).  So, connecting everywhere in the U.S. would be difficult.  However, that doesn't relieve the fact that we could have (and possibly still could) adopt a deliberate strategy of connecting major metro areas with fast trains that are much more energy efficient. 

Chad Emerson, Faulkner U.

 

WSJ Number of the Week: 492

The Wall Street Journal's Economics Blog, in a post by Mark Whitehouse, has as its "number of the week" the number 492, as in the average of 492 Days from Default to Foreclosure.

The average borrower in the foreclosure process hadn’t made a payment in 492 days as of the end of October, according to LPS. That compares to 382 days a year ago and a low of 244 days in August 2007.

In other words, people who default on their mortgages can reasonably expect, on average, to stay in their homes rent-free more than 16 months. In some states such as New York and Florida, the number is closer to 20 months.

Some may not be inclined to shed tears for the banks, who recently had to slow down their already-backlogged foreclosure process even more due to the revelations of robo-signing, but Whitehouse notes that this statistic could also provide a powerful incentive to other homeowners:

Millions of Americans still are paying their mortgages even though they owe more than their homes are worth. The more banks’ backlog grows, the more likely they are to join it, adding to the already giant pile of foreclosures weighing on the housing market.

Matt Festa

Walmart Goes Urban for Proposed D.C. Store...

Granted, its just a conceptual plan but this proposed Walmart in a mixed use building in the District is really quite unique for the Bentonville retailer.

At the very least, it should make for a good example of how even a large retailer like Walmart can work within the terms of a form-based code.

Chad Emerson, Faulkner U.

Benson on Environmental Review of Western Water Project Operations

Reed D. Benson (New Mexico) has posted Environmental Review of Western Water Project Operations: Where NEPA has not Applied, Will it now Protect Farmers from Fish?, forthcoming in UCLA Journal of Environmental Law & Policy, Vol. 29, No. 2, 2011.  The abstract:

The U.S. Bureau of Reclamation operates hundreds of dams in seventeen western states, and storage and release of water at these dams often causes serious environmental impacts. In operating these dams, however, the Bureau has largely been excused from complying with the environmental review requirements of the National Environmental Policy Act. This article explains and analyzes relevant NEPA cases involving these Bureau projects, and argues that the Bureau may want to conduct NEPA reviews for project operations even if they are not legally required. It also describes and critiques District Judge Oliver Wanger’s recent decisions applying NEPA to the Bureau’s efforts to comply with the Endangered Species Act in operating the Central Valley Project. The article concludes that the Bureau should use NEPA as a tool for making long-term decisions on project operations, but that courts should not insist on NEPA compliance that would interfere with efforts to protect endangered species.

Matt Festa

The "Build a Better Burbs Idea Competition"...

...has a winner:

Architect and educator June Williamson, co-author ofRetrofitting Suburbia, assisted in creating the competition's design brief and selecting the jury.

The resulting highly innovative, intriguing concepts offer residents and local governments the tools to carry out new and more productive discussions about redevelopment, according to Golob.

Out of more than 200 entries from teams in 30-plus countries, the jury selected five professionally designed concepts for awards, and also recognized one student concept. The public was invited to select one project from the field of finalists for a People's Choice Award, as well.

The winning concepts in the LII's "Build a Better Burb" Ideas Competition for Retrofitting Long Island's Downtowns are:

• AgISLAND, by the team of Parsons Brinckerhoff, N.Y. (Amy Ford-Wagner, Tom Jost, Ebony Sterling, Philip Jonat, Emily Hull, Will Wagenlander, Meg Cederoth, Melanie George, David Greenblatt, and Melissa Targett).
• Building C-Burbia, by the team of the City College of New York Bernard and Anne Spitzer School of Architecture, Landscape Architecture Program (Denise Hoffman Brandt, Alexa Helsell, and Bronwyn Gropp).
• Levittown: Increasing Density and Opportunity through Accessory Dwellings, by the team of Ryall Porter Sheridan Architects, New York, (Meri Tepper, Ted Porter, Ted Sheridan, and John Buckley) and William R. Morrish, Parsons the New School for Design.
• Long Division, by the team of the Network Architecture Lab, Columbia University (Kazys Varnelis, Leigha Dennis, Momo Araki, Alexis Burson, and Kyle Hovenkotter) and William Prince, owner, PARK.
• SUBHUB Transit System, by the team of DUB Studios (Michael Piper, Frank Ruchala, Natalya Kashper, Gabriel Sandoval, and Jeff Geiringer).
• Student Winner—Upcycling 2.0, by the team of Columbia University School of Architecture and Planning and Preservation (Ryan H. B. Lovett, John B. Simons, and Patrick Cobb).
• People's Choice Award Winner—LIRR: Long Island Radically Rezoned, by the team of Tobias Holler, New York Institute of Technology; Ana Serra, Buro Happold; Sven Peters, Atelier Sven Peters; and Katelyn Mulry, New York Institute of Technology.

Read the whole story here.

Chad Emerson, Faulkner U.

Thanksgiving 2010

Happy Thanksgiving, everyone.  If you care for some holdiay-related land use thoughts, we had some previous posts on Plymouth, MA (site of the Pilgrims' first Thanksgiving*) possibly becoming the Hollywood of the East; Will Cook on The Pilgrims and Land Use; and an assertion that Thanksgiving is a land use holiday.  

* I know better than to wade into the controversies over which place had the true first Thanksgiving--Plymouth (1621); Berkeley Hundred in Virginia (1619); or even St. Augustine, Florida (1565).  Regardless of who was first, thanksgiving feasts since the beginning have been celebrations of the relationship between the community and the land.  Enjoy your holdiay!

Matt Festa

Being Smart (Growth) About Environmental Justice

As a clincian who teaches three semesters a year I rarely have the time or opportunity to produce scholarship.  When I do, it's usually in collaboration with clinic students.  I recently posted a piece on SSRN of which I am very proud, becuase it's a cross-disciplinary collaboration with a law student, Stinson Ferguson, and a Geography Ph.D student, Ellen Kohl.  It's a piece on the Obama Administration's focus on enviornmental justice in its Smart Growth programs, and how it might impact our client communities.  Thanks to my Geography colleague, Nik Heynen, it even has a snappy title - "Being Smart (Growth) About Justice: Can the Obama Administration Undo Decades of Environmental Injustice Via Smart Growth?" 

The article only begins to speculate about the answer to that question, but we hope it will be a jumping off point to a whole lot more collaborative writing on the topic, and on the struggles and successes of the Newtown community in Gainesville.

The opportunity to write this article came through this blog.  The students at Seattle University recently started the Seatlle Environmental Law Journal, where the article first appeared, and they solicited our input for their inagural edition, "The Obama Effect."  (Unfortunately the whole edition is not available on-line.)

Happy Thanksgiving!  I'm grateful for a great group of colleagues and friends who help create this blog, and to all of you who teach, write, and help communities become stronger and more equitable.

Jamie Baker Roskie

Schragger on Business Improvement Districts and the Urban Resurgence

Richard Schragger (Virginia) has posted Does Governance Matter? The Case of Business Improvement Districts and the Urban Resurgence, forthcoming in the Drexel Law Review.  The abstract:

This Essay, written for a conference entitled “Business Improvement Districts and the Evolution of Urban Governance,” examines the relationship between innovations in urban governance and the recent urban resurgence. Whether business improvement districts (BIDs) have played a role in that resurgence is part of a larger inquiry about the causes of local economic growth and decline. This Essay begins by providing some background to the debate about BIDs, suggesting that BIDs have played a less significant role in urban governance than either proponents or detractors have sometimes asserted. It then makes some tentative efforts to describe the connections between BIDs and the urban resurgence in places like Philadelphia, arguing that those connections are not particularly robust. Finally, the Essay suggests caution when attempting to draw causal connections between governance and economic outcomes. It is not at all certain that good governance matters to local economic growth. Other factors may be more significant. If that is so, then the current competitive model of city growth and decline that seems to dominate thinking about urban law and policy is far too simplistic.

Fascinating!  In addition to the original thesis, the article does a great job laying out the positive and negative stories of the BID.  Since the early '90s, there have been two relevant phenomena: an upsurge in BIDs, and much progress in urban renewal.  But is there a causal relationship?  Anyone interested in revitalizing downtowns, urbanism generally, or the public-private debate should check it out.

Matt Festa

EJ Student Writing Competition Announcement

As previously promised, here is the announcement for the writing competition in conjunction with Ole Miss' Spring 2011 Environmental Justice Symposium.

ABA Section of Environment, Energy and Resources in collaboration with the University of Mississippi School of Law
STUDENT WRITING COMPETITION (2010-2011)

The American Bar Association Section of Environment, Energy and Resources (ABA-SEER) and the University of Mississippi School of Law are co-hosting a national Environmental Justice Symposium at the Ole Miss Law School in Oxford, Mississippi on April 1, 2011.  In conjunction with this Symposium, ABA-SEER announces its Environmental Justice Student Writing Competition and invites law students to submit papers exploring current issues in environmental justice.

Awards:  The winning entry will be awarded a prize of $1000 and will be published in a special issue of the Mississippi Law Journal together with other articles and materials from the Symposium.  In addition to the first prize, the Competition will award a second prize of $500 and a third prize of $250.  The first place paper will also be published on the ABA-SEER website as will the second and third place papers.

Students submitting the first, second and third place entries also will be invited to attend the Environmental Justice Symposium on April 1, 2011 where their selection as winning entries will be announced.  ABA-SEER will fund travel and hotel costs for the winning students.

Subject matter:  Entries should demonstrate original thought on a question of significance in the field of environmental justice and will be evaluated based on:  (1) originality; (2) contribution to the understanding or development of the field of environmental justice; (3) quality of scholarship; and (4) quality and organization of writing.

Eligibility: Students currently enrolled in law school (in the U.S. or abroad) (J.D. or LL.M. programs) are eligible, including students who will graduate in the spring or summer of 2011. Any relevant article, case comment, note, or essay may be submitted, including writing submitted for academic credit. Jointly authored pieces are eligible only if all authors are students and consent to submit. Previously published pieces, or pieces that are already slated for publication, are ineligible.

Deadline: Entries must be received no later than 5:00 PM ET on February 15, 2011.  Email entries and questions to Fawziah Y. Bajwa, Assistant Director, ABA Section of Environment, Energy, and Resources at [email protected].  Entries will be acknowledged by email.

Submission Requirements:

Cover page. This separate page must include the following information:
•    Title;
•    Author’s name, year in law school, and expected graduation date (to facilitate impartial judging, the author’s name and law school must NOT appear anywhere in the essay, other than on the cover page);
•    Law school name and address;
•    Author’s permanent and school mailing address, email address, and phone number
(IMPORTANT: indicate effective dates for any contact information subject to change);
•    Abstract (limited to 100 words) describing the piece; and
•    Certification that the article has not been published and is not slated for future publication (while authors may submit their articles to other competitions, acceptance for publication elsewhere will disqualify an entry from further consideration).
Format:  Submissions may be of any length up to a maximum of 45 pages (including footnotes), in a double-spaced, 8.5 x 11-inch page format with 12-point font (10-point for footnotes). Citation style must conform to A Uniform System of Citation (latest edition) published by the Harvard Law Review Association (the Bluebook). Submissions must be made by email attachment in Microsoft Word format, with the cover page as a separate attachment.

For more about ABA-SEER, please visit www.abanet.org/environ/

Jamie Baker Roskie

CNU President John Norquist...

...gets it right again:

As mayor, Norquist tore up more than a kilometre of freeway through Milwaukee, liberating 10.5 hectares of prime land for mixed-use development, with an estimated value of more than $US250 million.

He told the conference that urban freeways rarely relieve congestion, and, when they do, it is at a huge cost, scarring streetscapes, razing neighbourhoods and diverting income from main streets to malls and business parks. ''Building roads so cars do not have to slow down does not work.''

The Century Freeway in Los Angeles, for example, is 20 lanes at its widest. ''But it still grinds to a halt in rush hour,'' Norquist says. ''Building freeways in cities is like loosening your belt to deal with obesity.''

So the city of the future can be a dystopia of rumbling, choked motorways, main street stores abandoned for shopping centres, gated estates for the wealthy, and where blackouts from coal-fired power are increasingly common.

Or it can be a compact, if occasionally chaotic, place with lots of public transport, short streets on a grid pattern, corner shops, flats and townhouses, markets and even Middle Eastern-style souks.

Read the entire story here.  

And, while you're at it, consider attending the next Congress for the New Urbanism this June in Madison, Wisconsin.  Details can be found here.

Chad Emerson, Faulkner U.

 

Take the ELI Survey on the Greatest Environmental Policy Achievements

From the folks at ELI:

Please take a few moments to let us know what you think are the greatest environmental policy accomplishments of the past 40 years!

As we celebrate the 40th anniversary of the advent of modern environmental law and policy, the Environmental Law Institute has launched its New Vision and Future Challenges Project to help lay the groundwork for the next 40 years.  As one of the first steps in this project, we're asking you to take just a few minutes to complete a brief survey to tell us what you think were the most important environmental policy accomplishments up to now.

We'd like to hear from you by December 1. You may access the survey at the following link. 

We think you'll find this interesting and look forward to sending you the results!

Jamie Baker Roskie

Hill on Property and the Public Forum

Jessie Hill (Case Western) has posted Property and the Public Forum: An Essay on Christian Legal Society V. Martinez, from a symposium of the Duke Journal of Constitutional Law & Public Policy (2010).  The abstract:

Christian Legal Society v. Martinez is situated at the intersection of various, and arguably conflicting, lines of doctrine. In ultimately holding that the Hastings College of Law could decline to recognize the student chapter of the Christian Legal Society due to the group’s refusal to accept members who did not conform their beliefs and conduct to the principles of CLS (particularly regarding homosexuality),the Supreme Court was required to sort through a tangle of precedents involving free speech limitations in nonpublic fora, religious groups’ rights of equal access to school facilities, and freedom of expressive association.

Perhaps less obviously, however, CLS also stands in relation to Pleasant Grove City v. Summum and Salazar v. Buono, two other recent Roberts Court cases. In CLS, as in Summum and Buono, the Supreme Court turned to property - both as a metaphor and as a doctrinal tool - to resolve difficult and multifaceted constitutional questions. Although the relationship between First Amendment rights and property rights is a long-standing one, the Court seems to have turned to property with a renewed enthusiasm in these three recent cases. And although the property framework may appear to hold the promise of simplicity, neutrality, and avoidance of difficult policy questions, this brief essay, prepared for a special online symposium issue of the Duke Journal of Constitutional Law and Public Policy, argues that it fails to deliver on those promises. Instead, property analysis obscures the complex First Amendment issues behind seemingly easy categorical judgments and grants the government virtually unlimited power to exclude undesired speakers and groups. Notwithstanding the Court’s approach, the crux of the issue is, and has always been, when First Amendment values should overcome the forum owner’s right to exclude. That is a question the Court seems increasingly loath to resolve.

This paper reinforces my point about land use and constitutional law!  I think it's fascinating that while Stop the Beach was the only traditional property rights case before the Court last year, as Hill points out CLS, Salazar, and Summum have applied property law to First Amendment issues.  

Matt Festa

Marsh & Pyatt on the Stagnation of Indiana Real Property Law

Tanya D. Marsh (Wake Forest) and April Sparks Pyatt (Ice Miller) have posted The Stagnation of Indiana Real Property Law, Indiana Law Review, Vol. 43, p. 697 (2010).  The abstract:

This essay argues that common law of real property law in Indiana, and more broadly, is stagnating. This stagnation of the common law of property results from a combination of factors. Transactional attorneys view the litigation process as unworkable, particularly in the real estate context,for three key reasons: (1) the cost; (2) the length of time until resolution; and (3) the uncertain outcome. If neither the common law nor statutory law provide easy answers to an issue, the parties are likely to conclude that they are better off resolving their differences out of court rather than spending time and money to achieve an unpredictable result. This situation is a classic Catch-22 - the parties to real estate disputes refuse to bring their cases to the appellate courts in part because of the failure of the courts to modernize the Indiana common law of property, but the appellate courts of Indiana have limited opportunities to modernize the law because of the failure of parties to modern disputes to allow their cases to be heard.

Matt Festa

Southeast Smart Growth Network Video Conference

I just received this announcement from Katie Sheehan at UGA's River Basin Center:

The Southeast Smart Growth Network invites you to join us for our first regional video
conference showcasing key smart growth initiatives in the Southeast. The hour and a half program
will be presented from four interactive sites linked by the University of Georgia. You may also view the presentation from your computer.

Overcoming Obstacles to Smart Growth – A Case Study of the Town
of Davidson, NC (2004 EPA Award for Overall Excellence in Smart Growth
Achievement) - Town of Davidson Planning Manager, Lauren Blackburn,
and Commissioner Marguerite Williams will explain the main tenets of the
Davidson Planning Ordinance, initial community reactions to draft policy,
and the tools used to build support for change.

Going Green in Georgia – David Freedman, Principal at Freedman
Engineering Group and former Director of Engineering and Construction
for the Georgia Department of Natural Resources, will discuss strategies
for a successful green building program and cost neutral approaches to
constructing green buildings.

HUD-DOT-EPA Interagency Partnership for Sustainable Communities -
Anne Keller, Senior Sustainability Advisor, Environmental Protection
Agency Region 4, will discuss the new partnership and provide an
overview of the communities in the Southeast receiving grants. Amy
Brooks, Transportation Planner, Knoxville Regional Transportation
Planning Organization, will briefly discuss their initiative to develop a
Regional Plan for Sustainable Development.

Southeast Smart Growth Network – Christine Olsenius, Executive
Director of the Southeast Watershed Forum, will introduce a new project to
analyze green building programs in 5 Southeastern states.

DECEMBER 13th 2010, 2-3:30pm EST video conference.
Watch online: Email [email protected] to
receive the conference url and link-up instructions.

You can also watch from four locations;

Athens, Georgia - Center for Teaching and Learning, North Instructional Plaza, http://www.ctl.uga.edu/location, park at the Tate Student Center, 705 S. Lumpkin Street

Atlanta, Georgia - Georgia Department of Community Affairs, 60 Executive Park South NE, http://www.dca.ga.gov/main/About/DCAMap1.pdf, sign in at the security desk in the lobby

Charlotte, North Carolina - University of North Carolina, Charlotte, Room 126 Fretwell Building – #45 on campus map, park on parking deck, http://home.uncc.edu/directions

Knoxville, Tennessee - University of Tennessee, Room 156 Plant Biotechnology Building on the Agriculture Campus, http://www.utk.edu/maps/

Looks like it will be very interesting - unfortunately I've got a conflict, but I imagine it will be posted on a website for later viewing.

Jamie Baker Roskie

A Tricky Environmental Scenario...

Environmental advocates are in a tricky situation near Palo Alto as a proposed high speed rail route may endanger a long-standing Redwood tree.

The dilemma is all about what environmental issue trumps in this case:  save a historical tree or reduce carbon emissions through increased rail service.  

Sure, that simplifies the issue to some degree but I personally know one environmentally-sensitive planner who plainly stated "Now, this is a tough one.  Normally it’s not."

Read the whole story here:

Towering 10 stories above the banks of San Francisquito Creek, the El Palo Alto redwood predates the U.S. Constitution by more than 800 years. It is widely believed to have been a campsite for explorer Gaspar de Portola when he discovered San Francisco Bay in 1769.

It has endured everything from ecological changes to economic shifts, all of which left marks on the ecology of this venerable tree. Now it’s entangled in the debate over high-speed rail.

The tree stands within 10 feet of existing Caltrain tracks between the Menlo Park and Palo Alto stations, with commuter trains passing by 90 times every weekday. Initial plans by the California High-Speed Rail Authority called for widening the tracks to accommodate the new rail line, which would  put the tree in jeopardy. Proposed alternatives included a trench or raised track.

Chad Emerson, Faulkner U.

 

Head on Grasslands at Risk

John W. Head (Kansas) has posted International Legal Regimes to Balance the Protection of Prairies and Grasslands with Their Agricultural Use Part One – Grasslands at Risk, a working paper for the Center for International Trade and Agriculture (CITA).  The abstract:

Grasslands abound on Earth, but humans have damaged them profoundly. This paper – part of a book project focusing on the international legal regimes needed to strike an appropriate balance between the protection of grassland areas and their use for agricultural production – identifies where grasslands are located, what makes them distinct parts of our natural order, how they have been degraded, and why that matters.

Some points that are fundamental to this discussion include these: (1) grassland ecoregions exist both in tropical and in temperate zones of the Earth, and while there are important differences both between and within each of these two categories of grasslands, their similarities warrant looking at the two together; (2) grasslands are dramatically more complex and full of life than most people realize, and indeed the subtlety of their richness probably contributes to their abuse; (3) that abuse takes many forms and springs from many causes, including urban encroachment, forest encroachment (especially through fire suppression), habitat fragmentation, agricultural conversion, inappropriate grazing practices, water mismanagement, and recreational frivolity; and (4) human abuse of the world’s grasslands incurs a huge economic and financial cost to this and future generations, in part because it squanders the benefits that grasslands can provide by way of protecting water quality, buffering drastic natural phenomena (such as storms and floods), conserving soil resources, facilitating prudent recreation, maintaining critical habitat for wildlife, protecting biodiversity more generally, and contributing to the global food supply through sustainable use in agricultural and livestock operations.

The condition and use of grasslands around the world have a direct bearing on agricultural production and on the international trade in agricultural commodities that is essential for the Earth’s future. Hence this paper offers a factual foundation for legal and policy discussions; one or more later papers by the same author will contribute further to those discussions.

Matt Festa

Juergensmeyer on Rainwater Recapture

Julian Conrad Juergensmeyer (Georgia State) has posted Rainwater Recapture: Development Regulations Promoting Water Conservation, which was published in a symposium issue of the John Marshall Law Review, Vol. 43, p. 359 (2010).  The abstract:

The increasing need for water conservation in the eastern as well as western parts of the United States is focusing attention on rainwater recapture. The technology available is effective and relatively inexpensive. Using land development regulations to require or encourage new development to incorporate rainwater recapture facilities is one approach to alleviation of local water shortages.

Prof. Juergensmeyer's paper was a keynote presentation at the Kratovil Conference on Real Estate Law and Practice, hosted by John Marshall's Center for Real Estate Law.  By coincidence, I just got in the mail this morning a very nice brochure about the Center.  Directed by Prof. Celeste M. Hammond, it offers a graduate program in Real Estate Law leading to either an LLM for lawyers or to an MS for real estate professionals.  Looks like a great program with lots of things going on; for more info, check out the Center's website.

Matt Festa

Ruhl on General Design Principles for Resilience and Adaptive Capacity

J.B. Ruhl (Florida State) has posted General Design Principles for Resilience and Adaptive Capacity in Legal Systems: Applications to Climate Change Adaptation Law, forthcoming in the North Carolina Law Review, 2011.  The abstract:

No force has put more pressure on the legal system than is likely to be exerted as climate change begins to disrupt the settled expectations of humans. Demands on the legal system will be intense and long-term, but is the law up to the task? If it is, it will at least in part be because the legal system proves to be resilient and adaptive. The question this Article explores, therefore, is how to think about designing legal instruments and institutions now with confidence they will be resilient and adaptive to looming problems as massive, variable, and long-term in scale as climate change. Drawing from the body of resilience theory forged in natural and social sciences, this Article is the first to synthesize resilience theory in a framework relevant to lawyers and explore the general design principles it suggests for legal systems. Part I examines resilience - what it is and how to design for it in legal systems. It examines the normative dimensions of resilience and makes important distinctions between resilience of legal systems, resilience of laws they produce, and resilience of the other social and natural systems law addresses. Part II provides the theoretical context and design principles for adaptive capacity, focusing on adaptive management theory as an example for legal design. Part III suggests applications of these general principles to the challenge of designing law for responding to climate change, arguing that climate change adaptation law should draw from theories of adaptive management, dynamic federalism, new governance, and trans-governmental networks.

Matt Festa