Law Commons^™

Cultural Property: “Progressive Property In Action”, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

Cultural property law fulfills many of the normative and jurisprudential goals of progressive property theory. Cultural property limits the normal prerogatives of owners in order to give legal substance to the interests of the public or of specially protected non-owners. It recognizes that preservation of and access to heritage resources advance public values such as cultural enrichment and community identity. The proliferation of cultural property laws and their acceptance by courts has occurred despite a resurgent property fundamentalism embraced by the Supreme Court. Thus, this Article seeks to explicate the category of cultural property, its fulfillment of progressive theory, and …

Infrastructure Sharing In Cities, Sheila Foster

Georgetown Law Faculty Publications and Other Works

In this Essay, I reflect on the different ways in which cities engaged in what I call “infrastructure sharing” during the COVID-19 pandemic. Cities around the world responded to the pandemic by repurposing their streets and sidewalks into outdoor seating, dining spaces, and car-free pedestrian corridors. At the same time, many cities and states also faced calls to “reclaim” underutilized public and private structures like empty houses and hotels and put them to a use responsive to the crisis. The Essay will highlight the difference between sharing property and assets that are part of the “public estate” and dedicated exclusively …

Penn Central In Retrospect: The Past And Future Of Historic Preservation Regulation, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

The U.S. Supreme Court’s 1978 decision in Penn Central Transportation Co. v. City of New York is one of the best known cases in the Property Law canon. The Court there held that the refusal of the New York City Landmarks Preservation Commission to permit the owner to erect a 50-storey tower on top of Grand Central Terminal did not effect a taking of private property requiring the payment of compensation. The decision now is more than forty years old. Taught since then in most first-year Property classes, Penn Central endures as the foundation of the modern application of the …

Race And Property Law, K-Sue Park

Georgetown Law Faculty Publications and Other Works

This chapter offers an outline for understanding the key role of race in producing property values in the history of the American property law system. It identifies major developments in the mutually formative relationship between race and property in America that made and remade property interests in America through the processes of 1) dispossessing nonwhites, 2) degrading their homelands, communities, and selves, and 3) limiting their efforts to enter public space and occupy or acquire property within the regime thereby established. First, it describes the use of law to create the two most important forms of property in the colonies …

A Hobbesian Bundle Of Lockean Sticks: The Property Rights Legacy Of Justice Scalia, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

No modern United States Supreme Court Justice has stimulated more thought and debate about the constitutional meaning of property than Antonin Scalia. This essay evaluates his efforts to change the prevailing interpretation of the Takings Clause. Scalia sought to ground it in clear rules embodying a reactionary defense of private owners’ prerogatives against environmental and land use regulation. Ultimately, Scalia aimed to authorize federal judicial oversight of state property law developments, whether through legislative or judicial innovation. In hindsight, he stands in a long tradition of conservative judges using property law as a constitutional baseline by which to restrain regulation.

Climate Exactions, J. Peter Byrne, Kathryn A. Zyla

Georgetown Law Faculty Publications and Other Works

This essay presents a legal device by which local governments can put a price on climate emissions and loss of resiliency generated by new real estate development. Local governments commonly impose fees, a type of monetary exaction, on new development to offset public costs that such development will impose. This Essay argues that monetary fees offer significant potential as a tool to help local governments manage land development’s contribution to climate change. Such “climate exactions” can put a price on the carbon emissions from new development and also on development that reduces the natural resiliency of the jurisdiction to the …

Is Using The Public Trust Doctrine To Protect Public Parkland From Visual Pollution Justifiable Doctrinal Creep?, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

This Article asks whether the public trust doctrine should be applied to stop the construction of a multistory commercial building that will tower over the tree line of Palisades Interstate Park. The building, which received a variance from a local New Jersey zoning commission, will ruin views of the Park, particularly from scenic overlooks across the Hudson River in New York, like the Metropolitan Museum’s Cloisters and the George Washington Bridge. To make this argument, the author draws on the work of renowned public trust scholars, Professors Joseph Sax and Carol Rose, among others. Based on the doctrine’s adaptability to …

What Can Be Done, If Anything, About The Dangerous Penchant Of Public Trust Scholars To Overextend Joseph Sax’S Original Conception: Have We Produced A Bridge Too Far?, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

This Article examines the tendency of many legal scholars to overextend the scope of a previous scholar’s original idea—in this case, Professor Joseph Sax’s reconceptualization of the largely moribund common law public trust doctrine. Legal scholars are induced to write immoderately either to enhance their standing within the academic community or, more selflessly, to achieve law reform. These expansionist tendencies, however, are not without risk—a common law doctrine that becomes too unmoored from its historical shackles may lose the support of the courts that is required for its implementation. The Article examines whether a combination of academic norms and hortatory …

The Rebirth Of The Neighborhood, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

This essay argues that new urban residents primarily seek a type of community properly called a neighborhood. “Neighborhood” refers to a legible, pedestrian-scale area that has an identity apart from the corporate and bureaucratic structures that dominate the larger society. Such a neighborhood fosters repeated, casual contacts with neighbors and merchants, such as while one pursues Saturday errands or takes children to activities. Dealing with independent local merchants and artisans face-to-face provides a sense of liberation from large power structures, where most such residents work. Having easy access to places of sociability like coffee shops and bars permits spontaneous “meet-ups,” …

Historic Preservation And Its Cultured Despisers: Reflections On The Contemporary Role Of Preservation Law In Urban Development, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

The past years have seen widely noticed critiques of historic preservation by “one of our leading urban economists,” Edward Glaeser, and by star architect Rem Koolhaas. Glaeser, an academic economist specializing in urban development, admits that preservation has value. But he argues in his invigorating book, Triumph of the City, and in a contemporaneous article, Preservation Follies, that historic preservation restricts too much development, raises prices, and undermines the vitality of the cities. Koolhaas is a Pritzker Prize-winning architect and oracular theorist of the relation between architecture and culture. In his New York exhibit, Cronocaos, he argued …

The Cathedral Engulfed: Sea-Level Rise, Property Rights, And Time, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

Sea-level rise will require many new initiatives in land use regulation to adapt to unprecedented climate conditions. Such government actions will prompt regulatory and other takings claims, and also will be shaped by apprehension of such claims. This article analyzes the categories of land use regulations and other government initiatives likely to be enacted to adapt to sea-level rise and anticipates the takings claims that may be brought against them. In addition to hard and soft coastal armoring, the article considers regulations intended to force or induce development to retreat from rising waters. Retreat regulations present difficult takings problems, because …

Eminent Domain And Racial Discrimination: A Bogus Equation, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

This paper is a transcript of testimony by Professor J. Peter Byrne before the U.S. Civil Rights Commission on August 12, 2011.

This hearing addresses claims that the use of eminent domain for economic development unfairly and disproportionately harms racial and ethnic minorities. These claims draw on the history of urban renewal prior to the 1960’s, when many African Americans and others were displaced by publicly funded projects that bulldozed their homes in largely failed attempts to modernize cities. Justice Clarence Thomas’s dissent in Kelo v. City of New London further argued that the use of eminent domain for economic …

Stop The Stop The Beach Plurality!, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

The plurality opinion in Stop the Beach Renourishment v. Florida Department of Environmental Protection articulated a new doctrine of "judicial takings," and justified it with arguments drawing on text, history, precedent, and "common sense." This essay argues that the opinion falls makes a mockery of such forms of interpretation, represents raw pursuit of an ideological agenda, and indicates why the Regulatory Takings Doctrine more generally should be abandoned or limited.

The National Environmental Policy Act In The Urban Environment: Oxymoron Or A Useful Tool To Combat The Destruction Of Neighborhoods And Urban Sprawl?, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

To some, applying the National Environmental Policy Act (NEPA) to decisions affecting land use in an urban or built environment is an oxymoron. Cities have historically not been seen “as natural entities but as foreign impositions upon the native landscape,” places where the physical environment is already largely destroyed or reduced to insignificant remnants. Moreover, detecting the required federal presence to trigger NEPA may initially seem difficult when decisions affecting urban resources appear to be principally made by local or state agencies.

At the Institute for Public Representation (IPR) at the Georgetown University Law Center, the author has learned that …

Property And Environment: Thoughts On An Evolving Relationship, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

Private property is a necessary but insufficient tool for environmental regulation. Why is it necessary? There are several reasons. First, it settles who controls a resource, making rational management possible. While this may sound trivial, countries with weak or fragmented systems of ownership--or where enforcement of law is tainted by corruption--find it impossible even to begin to preserve resources or prevent pollution. This is especially the case when different individuals make conflicting claims to the same plot of land.

Second, private property owners have the incentive to preserve the capital value of their land. They can reap where they (or …

Regulatory Takings Challenges To Historic Preservation Laws After Penn Central, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

The Penn Central decision, in its most immediate concern, provided a legal framework within which local governments could enforce historic landmark restrictions without a regular constitutional requirement to pay "just compensation." The decision amalgamated regulatory takings analysis of historic landmark restrictions to the familiar and tolerant federal standards for reviewing zoning. Affirming the importance of the public interest goals of historic preservation, the Court directed inquiry to whether sufficient economic potential remained in the control of the property owner, given reasonable expectations at the time of her investment in the property. While the broader jurisprudential merits of Penn Central's approach …

Judicial Activism In The Regulatory Takings Opinions Of Justice Scalia, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

If the question is whether the Court's recent property rights decisions represent unwarranted judicial activism, my answer is an unequivocal "Yes!" Explaining why requires some care. After all the jurisprudential battles of the recent past, it is hard to state what makes a decision "activist," let alone unwarrantedly so.

Should Lucas V. South Carolina Coastal Council Protect Where The Wild Things Are? Of Beavers, Bob-O-Links, And Other Things That Go Bump In The Night, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Lucas v. South Carolina Coastal Council is one of several recent Supreme Court decisions in which the Court used the Just Compensation Clause as a "weapon of reaction" to strike down an offending land use restriction. In Lucas, the target of the Court's animus was a state law prohibiting a landowner from developing two beachfront lots. The South Carolina Supreme Court upheld the law as a legitimate exercise of the State's police power to protect the public from harm in the face of a takings challenge by the landowner. The U.S. Supreme Court rejected the South Carolina court's talismatic …

Has The U.S. Supreme Court Finally Drained The Swamp Of Takings Jurisprudence? The Impact Of Lucas V. South Carolina Coastal Council On Wetlands And Coastal Barrier Beaches, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

This article argues that the Court's reliance on the law of property neither creates an internal inconsistency in takings law nor necessarily leads to further destruction of natural resources. Background principles of property law, such as custom and public trust, have long provided a basis for government protection of the public's interest in certain types of land, like the barrier beach David Lucas sought to develop.

Thus, the Lucas case need not be perceived as casting a constitutional cloud over laws protecting important ecosystems like wetlands and barrier beaches. The decision may not place these resources in greater danger from …

Green Property, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

This essay begins an effort to imagine legal principles that further ecological values and to criticize extant principles that embody the antithetical values of exploitation and consumption. I will focus on the transformation of property law inherent in adopting an environmentally sustainable land use program.

Are The Suburbs Unconstitutional?, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

It is hard not to conclude that American local land use law has been a persistent and squalid failure. Once proud cities now stagger--decayed, honeycombed with dangerous, surreal moonscapes of physical and human devastation, and surrounded by insipid suburbs that sprawl over a vanishing rural world. What has gone wrong? To some extent, localities have had to bear the consequences of persistent racism and the national failure to embrace social democracy and adopt decent minimum guarantees of health care, education, and housing. Still, local land use law is deeply complicit with these national political choices.