Law Commons^™

Mississippi River Stories: Lessons From A Century Of Floods And Hurricanes, Sandra Zellmer, Christine Klein

Sandi Zellmer

n the wake of Hurricane Katrina, the nation pondered how a relatively weak Category 3 storm could have destroyed an entire region. Few appreciated the extent to which a flawed federal water development policy transformed this apparently natural disaster into a “manmade” disaster; fewer still appreciated how the disaster was the predictable, and indeed predicted, sequel to almost a century of similar disasters. This article focuses upon three such stories: the Great Flood of 1927, the Midwest Flood of 1993, and Hurricanes Katrina and Rita of 2005. Taken together, the stories reveal important lessons, including the inadequacy of engineered flood …

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 …

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 …

The Benchmark Of Expectations: Regulatory Takings And Surface Coal Mining, Darren Botello-Samson

Darren Botello-Samson

In 2006, the United States Court of Federal Claims issued a decision in BENCHMARK RESOURCES CORPORATION v. UNITED STATES, a case involving a regulatory takings challenge to enforcement of the Surface Mining Control and Reclamation Act (SMCRA), a federal law regulating the environmental effects of surface coal mining. Such cases are not rare, as the Claims Court has visited this question on a number of occasions. The ruling in BENCHMARK did not depart from the federal judiciary's doctrine on SMCRA takings cases. The ruling is worth noting, however, for the ways in which it highlights the key aspects of a …

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 – …

Liberty's Equal?: An Essay On Property's Rhetoric, Steven Semeraro

Steven Semeraro

Legal analysis of the compensation problem in Takings law has shifted its focus from the welfare economics and traditional philosophy to a more or less self-conscious linguistic investigation of the rhetorical devices used to convey the concept of property through language. Insight comes from understanding the signs and categories that our society uses to communicate about and understand property, rather than from a comprehensive view of what is best for society. This essay focuses on a partially concealed rhetorical device that has been repeatedly used by courts to justify the appropriateness of compensating individuals whose property loses some value as …

Searching For Robin Hood: Suggested Legislative Responses To Kelo, Mark Seidenfeld

Mark Seidenfeld

This article is a short essay that employs an economic analysis of the need for and potential abuses of eminent domain used to transfer property from one private entity to another. It adds to the current literature by suggesting that states can establish mechanisms for evaluating and compensating current landowners for the idiosyncratic value they place on their property, and can establish administrative procedures and judicial review essentially to require local governments to auction the opportunity to obtain the property to the private entity that will provide the greatest benefit to the jurisdiction.

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 …

Comparative Perspectives On Property Rights: The Right To Exclude, Jerry L. Anderson

Jerry L. Anderson

A comparative perspective can help students understand that the bundle of rights we call "property" can be allocated in a variety of ways, in order to serve societal interests. This article examines two variations on the right to exclude, which the American Supreme Court has declared to be "essential" to property ownership. Laotian hunting rights allow public access to private lands, clearly violating the right to exclude but providing important public benefits. Likewise, the right to roam in Britain qualifies the right to exclude to allow public hiking on private land. These examples help students realize that property rights represent …

Litigating The Meaning Of Emancipation: Reconstruction And Post Reconstruction Era Dilemmas Of Freed People And Property, Julie Novkov

Julie Novkov

This article explores how the southern courts managed the policy question of transferring property by bequest in the wake of the Civil War and emancipation. In the years when the infrastructure for Jim Crow was being assembled, many freedmen and freedwomen were able to gain access to property by bequest despite the system’s refusal to endorse broad based land reform. I argue, nonetheless, that these cases carried through a tradition of white patriarchal control of property, rather than heralding the uncertain dawn of a new era of racially egalitarian property rights.

Property, Persona, And Publicity, Deven R. Desai

Deven R. Desai

This article focuses on two interconnected problems posed by the growth of online creation. First, unlike analog creations, important digital creations such as emails are mediated and controlled by second parties. Thus although these creations are core intellectual property, they are not treated as such and service providers terminate or deny access to people’s property all the time. In addition, when one dies, some service providers refuse to grant heirs access to this property. The uneven and unclear management of these creations means that historians and society in general will lose access to perhaps the greatest chronicling of human experience …

The Frontier Of Eminent Domain, Alexandra B. Klass

Alexandra B. Klass

The Supreme Court’s 2005 decision in Kelo v. City of New London brought the issues of takings and public use into the national spotlight. A groundswell of opposition to government-initiated “economic development takings” the Court deemed a public use under the Fifth Amendment led to eminent domain reform legislation in over 30 states. Many people are surprised to learn, however, that another type of economic development taking is alive and well in many western states that are rich in natural resources. In those states, oil, gas, and mining companies have the power of eminent domain under state constitutions or state …

The Frontier Of Eminent Domain, Alexandra B. Klass

Alexandra B. Klass

The Supreme Court’s 2005 decision in Kelo v. City of New London brought the issues of takings and public use into the national spotlight. A groundswell of opposition to government-initiated “economic development takings” the Court deemed a public use under the Fifth Amendment led to eminent domain reform legislation in over 30 states. Many people are surprised to learn, however, that another type of economic development taking is alive and well in many western states that are rich in natural resources. In those states, oil, gas, and mining companies have the power of eminent domain under state constitutions or state …

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

Chad Emerson

No abstract provided.

How Do I Love Thee, Let Me Count The Days: Deathbed Marriages In America, Terry L. Turnipseed

Terry L Turnipseed

Should you be able to marry someone who has only days to live? If so, should the government award the surviving spouse the many property rights that ordinarily flow from such a marriage? In almost every state, the only person allowed to challenge the validity of a marriage (or, by extension, the property consequences thereof) after the death of one of the spouses is the surviving spouse! Seems incredible does it not? The heirs of a dying man (or woman) who marries on his (or her) deathbed cannot challenge the marriage post-death. Ironically, the one person allowed to challenge is …

Britain's Right To Roam: Redefining The Landowner's Bundle Of Sticks, Jerry L. Anderson

Jerry L. Anderson

Britain recently enacted a “right to roam” in the Countryside and Rights of Way Act (CRoW) 2000. At first glance, CRoW appears to be a dramatic curtailment of the landowner’s traditional right to exclude; it opens up all private land classified as “mountain, moor, heath, or down” to the public for hiking and picnicking. Yet, when viewed in the light of history, CRoW may be seen as partially restoring to the commoner rights lost during the enclosure period, when the commons system ended. CRoW also represents a return to a functional rather than spatial form of land ownership, allowing more …

The Public Trust Debate: Implications For Heirs' Property Owners Along The Gullah Coast, Faith R. Rivers

Faith R Rivers

Heirs’ property ownership is a significant problem facing the African American community in the Lowcountry of South Carolina. Heirs’ property generally refers to real property purchased by African Americans and held within families for generations without clear title. The land is owned by a group of relatives – the heirs – who possess fractionated fees as tenants in common. The disposition of tenants in common property is governed by the law of partition. Partition provides for the division of property, or its cash “equivalent,” according to owner interests.

The Lowcountry of South Carolina is the birthplace and central hub of …

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 …

Property Rights In A Burial Plot, Remigius Nwabueze

Remigius Nwabueze Dr

No abstract provided.

Inequity In Equity: The Tragedy Of Tenancy In Common For Heirs' Property Onwers Facing Partition In Equity, Faith R. Rivers

Faith R Rivers

This article considers the impact of the default intestacy estate of tenancy in common on African American heirs’ property. This piece considers the evolution of the heirs' property conundrum in the Lowcountry of South Carolina – the birthplace of the dream of African-American land ownership – and explores the implications of this form of property ownership on tenants in common facing partition in courts of equity, particularly in developing Sunbelt communities. Comprehensive property law reform is critically needed. I propose a new legal framework to better regulate the externalities that plague the commons of heirs’ property and achieve more equitable …

“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 …

The Play's The Thing: A Theory Of Taxing Virtual Worlds, Bryan T. Camp

Bryan T Camp

The Play’s The Thing: A Theory of Taxing Virtual Worlds: Bryan T. Camp Abstract Taxation is shadow life. As our culture monetizes more and more life activities, the shadow grows. This article looks at the potential tax issues arising from a new life activity: online role-playing games in virtual worlds. Currently, some 12 million people regularly play such games and the number is growing. Exploring the reach of the Tax Code into virtual world transactions not only responds to the potentially practical needs of millions of U.S. taxpayers, it also permits a reevaluation of core principles of income tax as …

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 …

Collective Myopia, Ronen Avraham, Kiwi Camara

ronen avraham

Collective myopia is a widespread but poorly understood problem that causes classes of similarly situated investors to underinvest in prospectively efficient improvements like education, capital, and preventive medical care. We introduce the concept of collective myopia, describe it, offer several solutions to it, and identify and discuss the real-world conditions that affect these solutions’ relative desirability. We apply our analysis to health insurance, prescribing a mandatory-membership clearinghouse, to be created by federal legislation, that would require its insurer members to cover prospectively efficient treatments identified by vote of the insurer members and, when an insured switches from one insurer member …

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 …

From Reparation To Restoration: Moving Beyond Restoring Property Rights To Restoring Political And Economic Visibility, Bernadette Atuahene

Bernadette Atuahene

Abstract: How does a democratic state legitimize strong property rights when property arrangements are widely perceived to be defined by past theft? The answer, I argue, is through restorative justice measures that redistribute wealth based on past dispossession. This answer, however, leads to two more complex questions: Who gets priority in the restorative process given limited resources and how should the process unfold? The concise answers to these two ancillary questions are: First, instances of what I call property-induced invisibility should be prioritized as a baseline for achieving legitimacy. When property is confiscated in this manner people are removed from …

The Police Power And "Public Use": Balancing The Public Public Interest Against Private Rights Through Principled Constitutional Distinctions, Christopher Supino

Cindy L. Thompson

The United States Supreme Court's recent decision in Kelo v. City of New London has excited considerable debate, confusion and anxiety among American judges, scholars, politicians and property owners. Following the Court's holding that a municipality can use the eminent domain power to condemn non-blighted residential property for an urban renewal project, many Americans have reacted with varying degrees of shock, disillusionment and anger over what they perceive is an attack on their--heretofore sacrosanct--property rights. However, while the public is correct to view Kelo with deep apprehension, this case does not represent a significant departure from the Supreme Court's early …

Re-Framing Eminent Domain, David A. Dana

David A. Dana

The United States Supreme Court decision in Kelo v. City of New London has invigorated the movement for eminent domain reform throughout this country. The two eminent domain reform alternatives currently on the political agenda are a flat ban on condemnations or a ban on only economic development condemnations coupled with continued allowance of blight condemnations. Although the possible effects of these reforms are central to the current debate, scholars have not carefully addressed those effects. With regard to the quantitative effects of reform, this Article demonstrates that we can make some predictions, albeit decidedly modest ones, regarding the effects …

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 …

Reconciling Individual And Group Justice With The Need For Repose In Nazi-Looted Art Disputes: Creation Of An International Tribunal, Jennifer Kreder

Jennifer Kreder

The recent push for Holocaust reparations, which resulted in European, domestic and international funds, left a significant gap pertaining to Nazi-looted art. Claims to Nazi-looted art are exploding, creating a tremendous problem for the art market. This Article concludes that the best remedy for the problem is the creation of an international tribunal with compulsory jurisdiction to resolve claims to Nazi-looted art in a manner akin to an equitable hybrid of mediation and binding arbitration. The Tribunal would provide justice to both individual claimants with strong claims and other claimants who probably could not win in court but are nonetheless …