Law Commons^™

Background Principles And The Rule Of Law: Fifteen Years After Lucas, James L. Huffman

James L. Huffman

The Supreme Court’s 1992 decision in Lucas v. South Carolina Coastal Council was welcomed by property right advocates. Justice Scalia’s opinion for the Court established a categorical taking where all economic value is lost as a result of regulation. Not surprisingly, advocates of unconstrained environmental and land use regulation were dismayed, although many were quick to suggest (hopefully) that Lucas’s impacts would be minimal since most regulations do not destroy all economic value.

Fifteen years later some who saw only dark clouds on the regulatory horizon as a consequence of Lucas now see a rainbow with a pot of gold …

Climate Change, Regulatory Fragmentation, And Water Triage, Robin K. Craig

Robin K. Craig

Fresh water is a regulatorily fragmented resource – that is, water is subject to multiple assertions of regulatory authority and to multiple types of use right claims that those authorities regulate. As fresh water supplies become increasingly unequal to task of meeting the multiple demands for both consumptive and in situ use, and as consumptive and in situ uses of water come increasingly into irreconcilable conflict, the various regulatory schemes governing water have also increasingly come into legal conflict. These courtroom battles have revealed many tensions, overlaps, and gaps in the overall governance of water as a natural resource, especially …

Background Principles And The Rule Of Law: Fifteen Years After Lucas, James L. Huffman

James L. Huffman

Abstract

The Supreme Court’s 1992 decision in Lucas v. South Carolina Coastal Council was welcomed by property right advocates. Justice Scalia’s opinion for the Court established a categorical taking where all economic value is lost as a result of regulation. Not surprisingly, advocates of unconstrained environmental and land use regulation were dismayed, although many were quick to suggest (hopefully) that Lucas’s impacts would be minimal since most regulations do not destroy all economic value.

Fifteen years later some who saw only dark clouds on the regulatory horizon as a consequence of Lucas now see a rainbow with a pot of …

A Comparative Guide To The Eastern Public Trust Doctrines: Classifications Of States, Property Rights, And State Summaries, Robin K. Craig

Robin K. Craig

Public trust doctrine literature to date has displayed two distinct tendencies, both of which limit comprehensive discussion of the American public trust doctrines. At one end of the spectrum, articles focused on broader legal principles tend to discuss the public trust doctrine, as though a single public trust doctrine pervaded the United States. At the other end, articles focus on how one particular state implements its particular state public trust doctrine. Few articles have grappled with the richness and complexity of public trust philosophies that more comparative approaches to the nation’s public trust doctrines – emphasis on the plural – …

Five Myths About Sprawl , Michael E Lewyn

Michael E Lewyn

In Sprawl: A Compact History, Robert Bruegmann, an art historian, has painted a superficially convincing case for the status quo, asserting that sprawl is “a natural result of affluence that occurs in all urbanized societies.” Bruegmann's book has generated glowing media publicity. This article suggests that Bruegmann overestimates the universality of sprawl, by overlooking the differences between pedestrian-friendly cities with some sprawling development and cities in which automobile-dependent sprawl is the only choice available to most consumers. In addition, Bruegmann understates the harmful social effects of sprawl, especially the effect of automobile-dependent development upon non-drivers. Bruegmann also consistently underestimates the …

All Sprawled Out: How The Federal Regulatory System Has Driven Unsustainable Growth, Chad Emerson

Chad Emerson

No abstract provided.

How Environmentalism Changed Urban Planning: English Green Belts To Washington Wetlands, Simma M. Asher

Simma M. Asher

Urban planning preserves green space to achieve three primary goals: to enhance quality of life, to encourage rural-based industries, and to protect the environment. The environmental goal is unique among those because it seeks to protect natural areas from human interference rather than shaping them to serve particular community purposes, such as to form a city boundary or build a farm or park. This paper examines how the addition of the environmental goal to urban planning conservation programs alters their structures. It compares an urban planning regime established before the environmental movement with a recent, environmentally oriented program and finds …

Local Public Entrepreneurship And Judicial Intervention In A Euro-American And Global Perspective, Fernando Christian Iaione

Fernando Christian Iaione

Local public entrepreneurship is a concept which encompasses a variety of activities carried out by local governments to foster local economic development. The first part of this paper puts forward local public entrepreneurship as a windfall of the right to local self-government. In the second part two cases are presented - one from EU and one from US - where local public entrepreneurship is playing a major role. However, in the EU the ECJ jurisprudence is discouraging local governments to engage in such activities thereby undermining the right to local self-government. By contrast, the US legal system actively encourages a …

Local Public Entrepreneurship And Judicial Intervention In A Euro-American And Global Perspective, Christian Iaione

Fernando Christian Iaione

Local public entrepreneurship is a concept which encompasses a variety of activities carried out by local governments to foster local economic development. The first part of this paper puts forward local public entrepreneurship as a windfall of the right to local self-government. In the second part two cases are presented - one from EU and one from US - where local public entrepreneurship is playing a major role. However, in the EU the ECJ jurisprudence is discouraging local governments to engage in such activities thereby undermining the right to local self-government. By contrast, the US legal system actively encourages a …

Local Public Entrepreneurship And Judicial Intervention In A Euro-American And Global Perspective, Fernando Christian Iaione

Fernando Christian Iaione

Local public entrepreneurship is a concept which encompasses a variety of activities carried out by local governments to foster local economic development. The first part of this paper puts forward local public entrepreneurship as a windfall of the right to local self-government. In the second part two cases are presented - one from EU and one from US - where local public entrepreneurship is playing a major role. However, in the EU the ECJ jurisprudence is discouraging local governments to engage in such activities thereby undermining the right to local self-government. By contrast, the US legal system actively encourages a …

How Government Regulation Forces Americans Into Their Cars: A Case Study, Michael E Lewyn

Michael E Lewyn

Shows how zoning law in Jacksonville contributes to automobile dependence.

Beware Of Greens In Praise Of The Common Law, James L. Huffman

James L. Huffman

Beware of Greens in Praise of the Common Law

James L. Huffman

ABSTRACT

After several decades of general agreement among environmental law scholars and environmentalists that the common law is inadequate to meet the challenges of environmental protection, a few scholars have taken a second look at common law remedies in recent years. Simple pragmatism explains some of this newborn interest in the common law, while for others there has been at least some acceptance of the efficiency arguments made by free market environmentalists since the 1970s. But for the most part the fledgling environmentalist case for revival of common …

“Love Don’T Live Here Anymore”: Economic Incentives For A More Equitable Model Of Urban Redevelopment , Michele Alexandre

Michele Alexandre

John Rawls once stated that “the basic [social] structure is just throughout when the advantages of the more fortunate promote the well-being of the least fortunate, that is, when a decrease in their advantages would make the least fortunate even worse off than they are. The basic structure is perfectly just when the prospects of the least fortunate are as great as they can be.” This statement can be applied to the urban renewal context. While the definition of urban renewal changed during the late twentieth and early twenty-first century, the effects of urban renewal have been the same for …

American Cities, Urban Planning, And Place Based Crime Prevetion, Edward H. Ziegler

Edward H Ziegler

Nearly a generation after Oscar Newman first wrote about the issues of place-based crime prevention and defensible space, cities large and small throughout the world are showing interest in what is now generally known as the field of “Crime Prevention Through Environmental Design.” In the United States and elsewhere throughout the world, preventing crime and reducing the fear of crime continue to be high priorities of citizens and city officials. Place-based crime prevention techniques are increasingly viewed as important urban planning tools to enhance the physical safety of citizens and to protect the public and private economic investment in new …

Planners Gone Wild: The Overregulation Of Parking, Michael E Lewyn, Shane Cralle

Michael E Lewyn

A review of Donald Shoup's book, The High Cost of Free Parking (to be published in William Mitchell Law Review).

A Pedestrian Transit Mall On Peachtree? How History, Policy, And Legislation Can Recreate A Proud Town, Collin R. Glidewell

Collin R Glidewell

This paper seeks to provide one solution to Atlanta's auto-oriented development problem. With its history as a streetcar town as inspiration, by shutting down a portion of Peachtree Street to cars and making it a transit-only thoroughfare, Atlanta can form a model for the South of dense retail and residential development. Using Denver's 16th Street Mall as a starting point, this paper looks at the legislative and regulatory hurdles the project would encounter. Hopefully, other cities in the U.S. could explore the viability of a similar project.

Property Tests, Due Process Tests And Regulatory Takings Jurisprudence, Steven J. Eagle

Steven J. Eagle

The United States Supreme Court recently clarified in Lingle v. Chevron U.S.A., Inc. that its often-expressed “substantially advance” formulation sounds in due process, and thus should be rejected as an appropriate takings test. The Court also explained that due process provides an independent and legitimate basis for attacking government deprivations of private property. Paradoxically, Lingle also reaffirmed as the Court’s principal takings test the ad hoc, multifactor formulation in Penn Central Transportation Co. v. City of New York. The Article asserts that Penn Central itself is a due test. Building upon Lingle, as the Court did not, the Article outlines …

Speaking Of Inconvenient Truths -- A History Of The Public Trust Doctrine , James L. Huffman

James L. Huffman

In the nearly four decades since Professor Joe Sax published an article in the Michigan Law Review, there has been a flood of academic writing and court decisions on the public trust doctrine. The vast majority of these articles and judicial opinions give a brief synopsis of the doctrine’s Roman, English and early American roots. In a nutshell, the generally accepted history is that from Justinian’s Institutes through Magna Charta and Bracton, Hale and Blackstone reporting on English law and Chancellor Kent acknowledging the reception of English and Roman law in America, the public has deeply rooted rights in access …

Watts My Line? Energy Generation Siting Strategies For Urban Areas, Caleb W. Christopher

Caleb W Christopher

The growth of urban areas has historically been both constrained and encouraged by energy and related infrastructure. Varying degrees of regulation have been sought to respond to compelling public safety needs: more recently, modern environmental law system was derived from public conflicts over siting of an energy plant. While the greater urban density offers reduced per-capita energy consumption rates, contemporary urban revitalization has brought a greater amount of people into closer contact with their energy sources. The unique geography, and increased securities needs, of urban areas demand both reliability and local proximity in energy source production. Urban siting issues will …

You Can Have It All: Less Sprawl And Property Rights Too, Michael E. Lewyn

Michael E Lewyn

The article describes two visions of suburban development, a “smart growth” vision which critiques automobile-dependent suburban sprawl, and a “property rights” vision which emphasizes individual freedom. The article then shows that these visions are to a great extent reconcilable, by discussing a variety of legal reforms which can both reduce suburban sprawl and enhance landowners’ property rights. For example, if zoning laws were reformed to allow landowners to build more compact developments, landowners would obviously have a wider range of options (thus enhancing property rights) and more people could live within walking distance of jobs, shops and public transit (thus …

Enacting Libertarian Property: Oregon's Measure 37 And Its Implications, Michael Blumm

Michael Blumm

In November 2004, for the second time in four years, Oregon voters opted for a radical initiative that is transforming development rights in the state. The full implications of this substantial change in property rights have yet to be fully realized, but it’s clear that the post-2004 land use world in Oregon will be dramatically different than the previous thirty years.

Land development rights in the state were significantly curtailed by a landmark law the Oregon legislature, encouraged by pioneering Governor Tom McCall, enacted in 1973. Implementation of that law survived three separate initiatives that sought to rescind it in …

American Cities, Urban Planning, And Place Based Crime Prevention, Edward H. Ziegler

Edward H Ziegler

This article discusses the regulatory techniques of place based crime prevention in the context of implementing zoning and planning laws in the United States. The article examines the specific planning and regulatory techniques that can be utilized in the urban planning process to incorporate public standards and guidelines related to crime prevention into the design and site plans of new development projects. The article provides a survey of regulatory techniques and a brief overview of a number of studies of place based crime prevention programs.

Federalism And The Tug Of War Within: Seeking Checks And Balance In The Interjurisdictional Gray Area, Erin Ryan

Erin Ryan

Federalism and the Tug of War Within explores tensions that arise among the underlying values of federalism when state or federal actors regulate within the “interjurisdictional gray area” that implicates both local and national concerns. Drawing examples from the failed response to Hurricane Katrina and other interjurisdictional problems to illustrate this conflict, the Article demonstrates how the trajectory set by the New Federalism’s “strict-separationist” model of dual sovereignty inhibits effective governance in these contexts. In addition to the anti-tyranny, pro-accountability, and localism-protective values of federalism, the Article identifies a problem-solving value inherent in the capacity requirement of American federalism’s subsidiarity …

Time To Step Up: Modeling The African American Ethnivestor For Self Help Entrepreneurship In Urban America, Roger M. Groves

Roger M. Groves

Almost $6 billion in taxes paid by the American people have been rather ubiquitously placed in the hands of a federal subsidy program for investors in low income communities. The subsidy is in the form of a tax credit. The program is entitled the New Markets Tax Credit (“NMTC”) initiative. Under the program, the tax credit is used to lure investors to provide equity capital into low income areas, urban and/or rural (i.e. a new market for equity funding). According to my companion law review article (Florida Tax Review, Spring, 2007; The Florida Tax Review was ranked 1st among tax …

Regulating Land Use In A Constitutional Shadow: The Institutional Contexts Of Exactions, Mark Fenster

Mark Fenster

The Takings Clause, Version 2005: The Legal Process Of Constitutional Property Rights, Mark Fenster

Mark Fenster