Wednesday, July 6, 2011

Robertson on Public Access to Private Land for Walking

H_ROBERTSON Heidi Robertson (Cleveland State) has posted Public Access to Private Land for Walking: Environmental and Individual Responsibility as Rationale for Limiting the Right to Exclude (Georgetown Int'l Envtl Law Journal) on SSRN.  Here's the abstract:

Whether people have an independent right of access to walk on land they do not own is a question answered differently throughout the world, largely due to cultural, historical, and political variations amongst regions. In this decade, English citizens gained a legislated right to roam on privately owned land designated by the government for public access. The British government now designates land as access land by evaluating the nature of the land itself, not its ownership status. In Sweden, the right to roam on land owned by another has long been a deeply rooted cultural tradition, though not codified in law. Other countries have adopted variations of a right of access, while some, like the United States, continue largely to resist it, choosing instead to hold property owners’ right to exclude above a public right of access. This paper looks at some of the historical and cultural reasons countries have adopted, cherished, or rejected a public right of access to privately owned land. In particular, it focuses on the degree to which each culture values environmental and individual responsibility.

To do so, it considers the Scandinavian countries, with an emphasis on Sweden, where a public right of access is longstanding and cherished, and there is a corresponding deep respect for the environment and individual responsibility. It then considers England, which has moved decisively toward granting broader rights of access to certain types of land through legislation, grounding that expansion on the satisfaction of certain rules pertaining to environmental and individual responsibility. It also looks briefly at several countries in Europe,where environmental and individual responsibility, as well as other cultural factors, have supported expanded rights of access. Finally, it raises the question why the United States does not have, and will not likely achieve, a similar legislated or cultural right of access to private land for walking.

I saw Heidi give a version of this paper at ALPS and thought it was terrific.  I'm going to bring some of this research into my class this year.  In particular, I think her case study of Sweden provides a great counterpoint to the right to exclude cases in Dukeminier.

Steve Clowney

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Strange when you have to talk to a real estate attorney just to walk around the neighbors yard... must be a cultural thing. In the country it isn't that big of a deal.

Posted by: Jenifer | Jul 8, 2011 10:37:40 AM

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