Friday, March 29, 2013

Fennell on Property in Housing

Lee Anne Fennell (Chicago) has posted Property in Housing12 Academia Sinica Law Journal 31 (2013).  The abstract:

The question of how to structure and package the residential experience is a deeply interesting and difficult one. How physically large or small should residential holdings be? How densely should they be clustered? Should spaces for working, recreating, cooking, and bathing be contained within the private residential unit, shared with other households, or procured a la carte? How permanent should the connection be between a household and a living space? How much control should households have over the environment surrounding the dwelling unit? Answers to these and many other queries differ both within and between societies. This keynote address, delivered at Academia Sinica’s Fourth Conference on Law and Economic Analysis in June 2012, shows how a law and economics perspective that emphasizes problems of scale can illuminate the task of configuring residential property optimally.

Matt Festa

March 29, 2013 in Housing, Property, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, March 28, 2013

TODAY - U Idaho Law Fracking Symposium - Watch LIVE!

Today, Friday, March 29, the University of Idaho College of Law is hosting a symposium on hydraulic fracturing.  You can watch it live here.  The schedule of events and speaker bios is here and below.  All times Mountain.

Introductions and Welcome (8:30 – 8:45)

Science and Technology of Hydraulic Fracturing (8:45-9:45)
Moderator: Anastasia Telesetsky (Idaho)
John Imse (NORWEST)
Virginia Gillerman (Idaho Geological Survey)

Break (9:45-10:00)

Regulation of Hydraulic Fracturing’s Environmental Effects (10:00 – 12:35)
Water. (10:00 – 11:00)
Moderator: Barbara Cosens (Idaho)
Joseph Dellapenna (Villanova)
Robin Kundis Craig (Utah)

Air & Land. (11:00 – 12:20)
Moderator: Jerrold Long (Idaho)
Jim Wedeking (Sidley Austin LLP)
Carlos Romo (Baker Botts LLP)
Elizabeth Burleson (Pace)

Morning Wrap-Up Panel Discussion (12:20 – 12:35)

Lunch Break (12:35-1:50)

State & Local Government Regulation of Hydraulic Fracturing (1:50 – 2:50)
Moderator: Stephen R. Miller (Idaho)
Uma Outka (Kansas)
Michael Christian (Marcus Christian Hardee & Davies LLP)

Two Hydraulic Fracturing Hot Topics: Trespass & Trade Secrets (2:50 – 3:50)
Moderator: TBA
Chris Kulander (Texas Tech)
Keith Hall (Louisiana State)

Break (3:50 – 4:00)

Does Hydraulic Fracturing Have a Role in a Clean Energy Future? (4:00 – 5:00)
Moderator: Dale D. Goble (Idaho)
Joshua Fershee (West Virginia)
Patrick Parenteau (Vermont)

Concluding remarks (5:00 – 5:15)

Reception (5:15 – 6:15)

I've been working with the students on this event for a year, and am really looking forward to it.  Hope you can join us online!

Stephen R. Miller

March 28, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 27, 2013

Arnold on Framing Watersheds

Craig Anthony (Tony) Arnold (Louisville)--a friend of and contributor to the Land Use Prof Blog--has posted Framing Watersheds, a chapter in Environmental Law and Contrasting Ideas of Nature: A Constructivist Approach, Keith Hirokawa, ed., Cambridge University Press, 2013.  The abstract:

Watershed institutions have emerged in the U.S. out of the structural fragmentation and functional inadequacies of several areas of law and policy. While these institutions organize governance, planning, and management functions around a type of ecosystem (i.e., watersheds), they are highly diverse and evolve over time. This book chapter seeks to understand the diversity of watershed institutions by employing framing analysis to identify the many cognitive and socio-political frames by which the legal system conceptualizes watersheds. More importantly, the chapter analyzes whether watershed institutions have adaptive capacity and can promote ecological and social resilience over time. The processes of multiple framing (multi-framing) and reframing, as seen in several case studies of multi-faceted and evolving watershed institutions, offer considerable promise for society and its watershed institutions to adapt to complex and dynamic conditions. The book chapter explores the barriers to and problems with multi-framing and reframing processes, as well as the opportunities for and benefits of multi-framing and reframing, in light of emerging scientific and social theories about resilience and systemic change.

Matt Festa

March 27, 2013 | Permalink | Comments (0) | TrackBack (0)

Land Use March Madness Bracketology

Urbanist Sweet SixteenRight now many people across America are anxiously awaiting the next round of contests to take place this weekend in the Sweet Sixteen.  Of course, I'm referring to the Sweet Sixteen of the Urbanist Bracket Challenge over at the Atlantic's Cities Blog. 

Who are you rooting for in the big matchups--Bike Lanes vs. Streetcars?  Farmers' Markets vs. BIDs?  Festival vs. Stadium?  Congestion Pricing vs. Electric Car Charge Stations?

Which regional bracket will produce the champion: Le Corbusier, Dandyhorse, Sidewalk Ballet, or Ed Koch?

Unlike most NCAA basketball pools, you can still vote in the Urbanist Bracket Challenge!  Check it out at the website.  Over 20,000 votes have been cast so far (probably more than your office pool!) so get involved and make your voice heard.  Enjoy the land use Madness.

Matt Festa

March 27, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 26, 2013

Protected Lands SSRN

There are a lot of SSRN eJournals out there. I subscribe to more thanI need to, but a new eJournal taht debuted a few months ago has really been a fun aggregation of articles.

Nancy McLaughlin (Utah Professor) and James Olmsted (Oregon Attorney) have created the "Protected Lands Law & Policy e Journal." It is the only journal I am aware of with an attorney editor and co-sponsorship from a law firm. [Maybe there are tons, but I just don't have to subscribe to them.]

The journal's description:

This eJournal distributes working and accepted paper abstracts addressing the law and policies relating to the protection of land for its ecological, natural, scenic, historic, recreational, cultural, or resource values. Protected lands can be either public or private lands, and include wilderness areas; wildlife refuges and preserves; local, state, and national parks; and Forest Service and BLM lands. Of particular interest are fee title lands held by charitable conservation organizations (land trusts) and lands protected by conservation easements held by land trusts or governmental entities. Protected lands may also result from the operation of environmental law regimes, such as the creation of Habitat Conservation Plans under the U.S. Endangered Species Act and wetland mitigation banks under the U.S. Clean Water Act. Issues relating to the exercise of Native American Sovereignty or Native American statutory and treaty rights, as well as the protection of urban lands, including urban parks, gardens, and "foodscapes," are also pertinent to this eJournal. Because existing human occupation and use of land often conflicts with protecting the land, this eJournal invites discussion of social issues arising from the removal of people from land or limiting uses of land. Land protection also raises economic issues, including reduction in the value of land and its income producing potential; local, state, and federal tax incentive issues; and the commoditization of property rights through, for example, transfer of development rights programs, carbon offset programs, mitigation banks, and provision of natural or ecosystem services. Land protection raises further issues relating to nonprofit governance, the laws governing the administration of charitable gifts, and the role of the courts as well as federal and state regulators, including the Bureau of Land Management, the U.S. Fish and Wildlife Service, the Internal Revenue Service, and state attorneys general, in ensuring the continued protection of the land. This eJournal is international and interdisciplinary and welcomes submissions from around the globe.

How can I not love an eJournal specifically interested in conservation easements! The journal editors and advisory board are the heavy hitters in conservation easement scholarship (as well as experts in environmental and land use law).

- Jessie Owley


March 26, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, March 25, 2013

Poirier's Comparative Analysis of the Right to Dwell

Marc Poirier (Seton Hall) has posted Brazilian Regularization of Title in Light of Moradia, Compared to the United States’ Understandings of Homeownership and Homelessness, __ U. Miami Inter-Am. L. Rev.  ___ (forthcoming). Here's the abstract:

This Essay considers the cultural resonances of regularization of title (regularização) for homeownership in the favelas of Rio de Janeiro. It compares those resonances to the cultural meaning of homeownership in the United States. Brazil’s approach is informed by an understanding of moradia, a right to dwell someplace, that is a far cry from its typical English translation as a right to housing. Brazil also draws on constitutional provisions and a long Latin American tradition concerning the social function of property, as well as a general theoretical understanding of the right to the city and of cidadania, a certain kind of citizenship. All of these frames construct homeownership as a gateway to interconnection and full participation in the life of the city. This is distinctly different from the individualistic cast of the prevailing understanding of homeownership in the United States, as personal success and the achievement of wealth, status, and a private castle.

The Essay also considers the standard United States construction of homelessness, which again tends to frame the issue in terms of individual responsibility or blame or of the role of institutional structures as they affect individuals, and typically fails to recognize the effect of having no property on relationships and interconnectedness and ultimately citizenship. The Essay advances five reason for the differences between Brazilian and United States understandings of homeownership. These include very different histories concerning the distribution of public lands; the absence in United States property jurisprudence of anything like the notion of a social function of property; the physical invisibility of informal communities in the United States; United States jurisprudence’s rejection of vague, aspirational human rights claims as law; and an insistence in United States jurisprudence on legal monism and an abstract, universalizing account of property ownership that valorizes one-size-fits-all law rather than case-by-case accounts of how land and dwellings are managed by various local communities.

Finally, the Essay observes a recent groundswell of United States scholarship that debunks “A own Blackacre” as an adequate account of the ownership of land and homes, insisting on a more race- and class-informed account as to both the history of homeownership and possible solutions for providing secure dwelling for the poor. The Essay recommends a convergence of studies of informal communities worldwide with a more nuanced, race- and class-informed understanding of homeownership.

Jim K.

March 25, 2013 in Affordable Housing, Comparative Land Use, Housing, Property, Property Rights, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

ClassCrits Deadline Extended

I posted about this conference before. They have decided to extend the deadline for the Call for Papers.


ClassCrits VI

Stuck in Forward?

Debt, Austerity and the Possibilities of the Political 

 Sponsored by Southwestern Law School & U.C. Davis School of Law

Los Angeles, CA    * November 15-16, 2013


Keynote Speaker: Professor Akhil Gupta, Department of Anthropology

Director, Center for India and South Asia, University of California, Los Angeles

Proposal Submission Procedure and EXTENDED Deadline.  Please submit your proposal by email to by May 15, 2013.  Proposals should include the author’s name, institutional affiliation and contact information, the title of the paper to be presented, and an abstract of the paper to be presented of no more than 750 words.  Junior scholar submissions for works in progress should be clearly marked as “JUNIOR SCHOLAR WORK IN PROGRESS PROPOSAL.” Visit the ClassCrits website at for more information about this year’s themes and topics.


- Jessie Owley

March 25, 2013 | Permalink | Comments (0) | TrackBack (0)

Sunday, March 24, 2013

The Debate over Richard Florida's views on the Creative Class: Richard Florida weighs in

For those of you who just cannot get enough of Richard Florida, the Daily Beast this week features an exchange between Joel Kotkin and Richard Florida on whether Florida's evolution as a proponent of cities being geared toward the "creative class" constitutes a full-scale retreat from his emphasis on this group as a generator of local and regional economic growth.  Florida's installment references a related piece on the importance of urban design that promotes personal interaction that he published in the Wall Street Journal back in July.

HT, Chris O'Byrne.

Jim K.

March 24, 2013 in Development, Downtown, Urbanism | Permalink | Comments (0) | TrackBack (0)

U Idaho Law Fracking Symposium / Couture on Securities Regulation and Fracking

First, my last reminder that the University of Idaho College of Law’s symposium in Boise is next Friday, March 29, and will focus on the legal aspects of hydraulic fracturing.  Check out the schedule here

Most importantly for this group, the symposium will be streamed live for free beginning at 8:30 a.m. Mountain time.  We are also offering 5 CLEs for attorneys that view remotely for a modest $145 by registering here (non-Idaho attorneys will also have to submit written materials to their home jurisdiction bar for credit).  As faculty adviser for the symposium I have to say that I believe our students have put together a great collection of academics and practitioners working in this field, and I think it will prove to be an event of national significance. 

Second, a colleague of mine that specializes in securities regulation, Wendy Gerwick Couture (Idaho), recently posted a great article on securities disclosure requirements related to hydraulic fracturing.  Her article is entitled “Securities Regulation as Gap-Filler: The Example of Hydraulic Fracturing,” forthcoming in 41 Securities Regulation Law Journal __ (2013).  Here’s the abstract:

Hydraulic fracturing is a controversial well stimulation process used to maximize the extraction of underground resources like oil and gas. There has been a significant public and scholarly outcry for a federal regulatory response to hydraulic fracturing. Despite the perception of a slow federal regulatory response to hydraulic fracturing, one area of federal regulation has dealt extensively with hydraulic fracturing: securities regulation. In particular, public companies that are engaged in hydraulic fracturing operations must (1) make extensive periodic disclosures under Securities Exchange Act regulations; and (2) comply with the Exchange Act’s regulations regarding shareholder access to company proxy statements. After explaining how the securities laws regulate hydraulic fracturing, albeit indirectly, this Essay concludes with a broader discussion about the gap-filling role of securities regulation within the federal regulatory scheme.

It’s a great inter-disciplinary piece worth checking out!

Stephen R. Miller

March 24, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 13, 2013

Wahi on Land Acquisition, Development, and the Constitution in India

Namita Wahi has posted Land Acquisition, Development, and the Constitution, Seminar Magazine, Feb. 2013.  The abstract:

In this article, I argue that the debates surrounding the adoption of a fundamental right to property in the Constitution were centred around the somewhat paradoxical desire to achieve a liberal democratic legal order which guaranteed the rights to liberty, equality and property, while simultaneously embarking on a transformation of the economic and social order considered imperative to prevent a revolution. This transformation was pegged on a development strategy involving a move from a feudal agrarian to a capital intensive industrial society. A major component of this transformative agenda was land reform, involving zamindari abolition abolition and redistribution of land among the peasants. Equally important, however, was state planned industrial growth and encouragement of growth of private industry.

The article goes on to assess the history of land acquisition laws in this country against this backdrop. In particular, it analyses the key features of the Land Acquisition Act, 1894, including the major problems with its implementation. It then analyses the proposed Land Acquisition Rehabilitation and Resettlement Bill, with a view to determining the extent to which the bill addresses the problems with the Land Acquisition Act, 1894. Finally, the article describes the special constitutional provisions for the Scheduled Areas as contained in the Fifth and Sixth Schedules and analyses to what extent the LARR bill is compliant with existing constitutional guarantees.  

Matt Festa

March 13, 2013 in Comparative Land Use, Constitutional Law, Property Rights, Scholarship | Permalink | Comments (0) | TrackBack (0)

Arnold on Framing Watersheds

Craig Anthony (Tony) Arnold (Louisville) has posted Framing Watersheds, forthcoming in Environmental Law and Contrasting Ideas of Nature: A Constructivist Approach, Keith Hirokawa, ed., Cambridge University Press, 2013.  The abstract:

Watershed institutions have emerged in the U.S. out of the structural fragmentation and functional inadequacies of several areas of law and policy. While these institutions organize governance, planning, and management functions around a type of ecosystem (i.e., watersheds), they are highly diverse and evolve over time. This book chapter seeks to understand the diversity of watershed institutions by employing framing analysis to identify the many cognitive and socio-political frames by which the legal system conceptualizes watersheds. More importantly, the chapter analyzes whether watershed institutions have adaptive capacity and can promote ecological and social resilience over time. The processes of multiple framing (multi-framing) and reframing, as seen in several case studies of multi-faceted and evolving watershed institutions, offer considerable promise for society and its watershed institutions to adapt to complex and dynamic conditions. The book chapter explores the barriers to and problems with multi-framing and reframing processes, as well as the opportunities for and benefits of multi-framing and reframing, in light of emerging scientific and social theories about resilience and systemic change.

Tony is a friend of this blog and an occasional Contributing Editor, as well as a leader in the emerging areas of sustainability and adaptive management.  Looks like an interesting volume by Keith Hirokawa and others.  

Matt Festa

March 13, 2013 in Books, Environmental Law, Environmentalism, Scholarship, Water | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 12, 2013

Sepe & White on Urban Infrastructure & The Rule of Law

Simone M. Sepe (Arizona) and James T. White (Arizona) have posted The New City Beautiful: Urban Infrastructure and the Rule of Law.  The abstract:

This article argues that urban physical disorder weakens the relational social contract upon which the rule of law is built. Under this social contract, citizens follow legal rules in exchange for certain goods and services from the government, and citizens conditionally cooperate with each other, following the rules because others follow the rules as well. Urban physical disorder, as evidenced by crumbling urban infrastructure, signals both that the government is not fulfilling its obligations under the social contract and that others are not following the rules, contributing to a downward spiral that ultimately leads to a culture unsupportive of the rule of law. 

To test this theoretical account, this article analyzes empirical data from 124 countries related to the quality of the urban environment and the degree of commitment to the rule of law, as measured by perceived corruption. This analysis shows that the rule of law is both strongly correlated and causally dependent upon the quality of the urban environment. Contrary to the conventional wisdom that austerity is an effective means of controlling corruption, this article thus suggests that public investment in urban infrastructure and the creation of quality urban environments are essential components of efforts to cultivate and maintain the rule of law.

Really fascinating.  Tying the built environment to the rule of law is, in my opinion, one of the most important issues for the near future.

Matt Festa

March 12, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, March 8, 2013

Is there a new urbanist, or city-friendly, children’s book out there?

A couple weeks ago, I received a great gift in the mail.  My wife and I had a baby girl back in Little House
September, and the gift was from a mentor of mine, Fred Etzel, an adjunct who has taught land use law at Berkeley’s city planning program for decades.  The gift was The Little House, the 1943-classic by Virginia Lee Burton.  I was so excited to receive this because I realized, as I read it to my daughter, that I had read this book as a child, that I loved the pictures then, and that it was probably the first time in my life that I was interested in land use!  I was excited to be able to share this passion with my daughter.

As we read, though, I began to think about the overarching message of the book.  For those who haven’t read the book (spoiler alert:  plot summary ahead!), it follows the life of a house that lives on a bucolic hill that is in tune with the seasons, that is slowly encroached upon and de-spoiled by the big bad city, and then is removed back to another bucolic hill where it was once again in tune with the seasons.  The gist, as was probably ripe for the suburb-loving Forties, is that cities are scary places out of tune with the environment. 

While I continue to love the book both for nostalgic reasons and because it is the only children’s book I know about land use, I wondered if there was another children’s book out there that might depict the new rise of the city and all of the great things that are happening out there in urban environments right now.  So I thought I’d throw it open to discussion:  any land use-lovers out there with recommendations for children’s books that express contemporary views of cities and urbanism, or otherwise portray strong land use or environmental values?  A newbie parent needs to know!

Oh, and if you don't own The Little House, you can watch a Disney cartoon of the book here.

Stephen R. Miller

March 8, 2013 | Permalink | Comments (3) | TrackBack (0)

Hazard Mitigation Planning

Land use planning can get thrown for a loop where planners fail to adequately account for potential natural or man-made human- caused disasters (although I don’t generally accept the differences we draw between what we consider to be natural versus human-caused, as though perhaps humans are unnatural?). Researchers at the University of Idaho (home of co-blogger Stephen Miller) have been examining local hazard mitigation plans. A forthcoming article in Applied Geography describes hazard mitigation planning and presents a rubric for assessing such plans in both development and implementation. I am particularly intrigued by their findings that urban areas focus on prevention and rural areas on response. Interesting correlation perhaps with perceived resiliencies of those environments?

Tim G. Fraziera, Monica H. Walkerb, Aparna Kumaric, & Courtney M. Thompson, Opportunities and Constraints to Hazard Mitigation Planning, 40 Applied Geography, 52 (2013).

ABSTRACT: Hazard mitigation plans (HMPs) play a critical role in the reduction of societal loss from natural and human-caused hazards and disasters. The occurrence of hazardous events cannot be prevented but hazard mitigation planning when diligently applied has proven to be an effective tool for enhancing local community resilience and reducing societal losses. HMPs are planning documents that aim to increase community preparedness and resiliency, and decrease vulnerability in the event of a hazard. However, due to a variety of reasons many communities often fail to address criteria that could protect against future societal losses. For instance, minimum requirements, as stipulated by the Disaster Mitigation Act 2000, are all that is needed to qualify for federal mitigation grant funding regardless of plan quality or appropriateness of HMPs to local hazards and risks. Additionally local emergency managers and planners also face constraints like integration of HMPs into comprehensive plans and a standardized tool to evaluate plan quality. In essence most communities in the US have HMPs but lack a method of evaluating the quality and effectiveness of their plans for mitigating hazards. Building on the standard HMP minimum requirements, additional criteria established in prominent hazard literature, and information culled from interviews, this study develops an evaluation matrix to assess local HMP quality. Based on the factors mentioned above, researchers explored the opportunities and constraints to HMP development faced by jurisdictions within our Western Washington study area. Conclusions reveal that available resources, level of sophistication, and political complexities affect the quality of HMP development and the actual implementation of mitigation planning strategies.

Jessica Owley

March 8, 2013 | Permalink | Comments (0) | TrackBack (0)

Widener on Citizen 'Visioning' in Town Comprehensive Planning

Michael N. Widener (Phoenix) has posted Moderating Citizen 'Visioning' in Town Comprehensive Planning: Deliberative Dialog Processes, forthcoming in the Wayne Law Review.  The abstract:

This article describes opportunities in Comprehensive Plan (aka General Plan or Master Plan) initial adoption or subsequent amendment processes where stakeholders provide inputs on behalf of a diverse citizens community. The moderation process described here involves the City of Scottsdale, Arizona, currently engaged in developing its 2014 Plan which seeks to extend the city’s planning vision through 2045. Part II of this article provides a brief primer of a General Plan’s role in municipal police power exercise. Parts III and IV describe the history of the Scottsdale experience in amending its General Plan with citizen aid and rebellion. Part V delivers some observations about a citizen input method into planning matters that is subject to popular critique. Part VI summarizes the purpose of citizen inputs into a comprehensive plan, and how professional moderation of the stakeholders' inputs may appropriately channel public contributions to a municipality's land use vision without distortion or corruption of the process.

Matt Festa

March 8, 2013 in Comprehensive Plans, Local Government, Planning, Politics, Scholarship, Sun Belt | Permalink | Comments (0) | TrackBack (0)

Thursday, March 7, 2013

Sawers on History, Fourth Amendment Searches, and the Right to Exclude

Brian Sawers (Maryland) has posted Keeping Up with the Joneses: Making Sure Your History Is Just as Wrong as Everyone Else's, forthcoming in Michigan Law Review First Impressions, Vol. 111, p. 21 (2013).  The abstract:

Both the majority and concurring opinions in United States v. Jones are wrong about the state of the law in 1791. Landowners in America had no right to exclude others from unfenced land. Whether a Fourth Amendment search requires a trespass or the violation of a reasonable expectation of privacy, government can explore open land without a search warrant.

In the United States, landowners did not have a right of action against people who entered open land without permission. No eighteenth-century case shows a remedy for mere entry. Vermont and Pennsylvania constitutionally guaranteed a right to hunt on open land. In several other states, statutes regulating hunting implied a public right to hunt on (and, by implication, enter) unfenced land.

Matt Festa

March 7, 2013 in Caselaw, Constitutional Law, Crime, History, Property Rights, Scholarship, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Owen on Taking Groundwater

Dave Owen (Maine) has posted Taking Groundwater.  The abstract:

In February, 2012, in a case called Edwards Aquifer Authority v. Day, the Texas Supreme Court held that landowners hold property rights to the groundwater beneath their land, and that a regulatory restriction on groundwater use could constitute a taking of private property. The decision provoked strong reactions, both positive and negative, throughout the world of water law, for it signaled the possibility of severe restrictions on governmental ability to regulate groundwater use.

This Article considers the deeper issue that confronted the Texas Supreme Court, and that has confronted other courts across the country: how should the Takings Clause of the Fifth Amendment, and parallel clauses of state constitutions, apply to groundwater use regulation? Initially, this Article explains why this issue is exceedingly and increasingly important. It then reviews all of the groundwater/takings decisions from federal and state courts in the United States. Finally, the Article considers the implications of foundational property theories for the application of takings doctrine to groundwater use.

The analysis supports two key conclusions. First, it undermines arguments against treating water rights as “constitutional property” — that is, property protected by federal and state takings clauses. Proponents of those arguments generally assert that treating water rights as property has uneven support from prior caselaw and that such treatment will be prevent sensible governance. A review of groundwater caselaw demonstrates that the former assertion runs counter to the weight of authority, and that the fears underlying the latter argument are overstated. Second, and more importantly, the analysis undermines arguments for granting groundwater use rights heightened protection against regulatory takings. Recently, litigants and commentators skeptical of government regulatory authority have widely advanced those arguments. But they find no support in past groundwater/takings caselaw, and no property theory justifies adopting such an approach.

An important issue, and a reminder that state supreme courts continue to play a crucial role in shaping modern property law.

Matt Festa

March 7, 2013 in Caselaw, Constitutional Law, Environmental Law, Property, Property Rights, Scholarship, State Government, Sustainability, Takings, Texas, Water | Permalink | Comments (0) | TrackBack (0)

ALPS Deadline extended to March 15

The Association for Law, Property, & Society (ALPS) annual meeting is coming up, and the deadline to register and/or submit paper or panel proposals has been extended to Friday, March 15.  From the CFP:

The ALPS 4th Annual Meeting,, will be held at University of Minnesota Law School, April 26-27, 2013. Our annual meetings attract over 100 participants, approximately one third of whom come from outside of North America and a number of whom do interdisciplinary work.

A couple of additional draws this year: first, Professor Carol Rose will be the honoree and keynote speaker; second, the ALPS conference is immediately following a related conference in energy/environmental law onsite:

The Consortium on Law and Values in Health, Environment & the Life Sciences will be hosting a conference on Legal and Policy Pathways for Energy Innovation on April 24 and 25,

So, as someone on the listserv said, it's a Minnesotapalooza!  UM prof and ALPS leader Hari Osofsky is overseeing both. 

Remember, ALPS takes pride in hosting a collegial, accessible conference for scholars at all career stages and with various disciplinary interests.  Including, but not limited to . . .

· Civil Rights & Inequality (including Race, Gender, Religion, Income, Disability, etc)/Critical Legal Studies
· Economics and Property Law
· Energy/Environment/Climate Change
· History of Property
· Housing/Urban Development/Mortgages and Foreclosure
· Indian Law/Indigenous Rights Law
· Intellectual Property
· International Property Law/Human Rights and Property/Cultural Property
· Land Use Planning/Real Estate/Entrepreneurship
· Property and Personhood/Concept of Home
· Property Theory
· Takings and Eminent Domain
· Teaching Property

So if you haven't submitted or registered yet, now's the time to sign up for ALPS in Minnesota this April. 

Matt Festa

March 7, 2013 in Conferences, Property, Scholarship | Permalink | Comments (0) | TrackBack (0)

Furman Center report on Housing & Superstorm Sandy

The NYU Furman Center has issued a timely report called Sandy's Effects on Housing in New York City.  From the announcement by Vicki Been and Ingrid Gould Ellen:

We are pleased to share with you our latest fact brief: Sandy's Effects on Housing in New York City (PDF) Our report is the first independent, comprehensive analysis of the Superstorm's impact on housing in New York City.


The study revealed some surprising insights into the impacts of the Superstorm Sandy. It found that low-income renters were disproportionately impacted by the storm's surge; over half of the victims were renters, 61 percent of whom make less than $60,000 per year, instead of middle-class homeowners. It also exposed the age of the housing stock affected by the surge; 82% of the properties hit by Sandy were built before 1980, before the latest flood maps and building standards were established.


The report also summarizes newly available information about the characteristics of properties in the area in New York City flooded by Sandy's storm surge, as well as demographic characteristics of households that have registered to receive assistance from FEMA. The study was released in partnership with Enterprise Community Partners, who provided a similar analysis on Long Island and New Jersey.


The press release (PDF) and report (PDF) are now available online.


Lots of interesting maps and data in this report, which should be of interest to anyone researching law, land, housing, and disaster planning


Matt Festa

March 7, 2013 in Affordable Housing, Beaches, Coastal Regulation, Community Economic Development, Environmentalism, Federal Government, Housing, Local Government, New York, Property, Redevelopment, Scholarship, Water | Permalink | Comments (0) | TrackBack (0)

Monday, March 4, 2013

New blog by J.B. Ruhl: Law 2050

J.B. Ruhl (Vanderbilt) has started a new blog that some of our readers may want to check out.  It's called Law 2050:  A Forum About The Legal Future.  He notes that "the focus is the future of law, legal practice, and legal education. It represents an intersection of my interests in climate change adaptation law, legal system complexity, legal futurism, and the transformation of legal practice and education, all of which require some sense of legal future scenarios."  Check it out!

Stephen R. Miller

March 4, 2013 | Permalink | Comments (0) | TrackBack (0)