Law Commons^™

Rationing Access, Roy Baharad, Gideon Parchomovsky

Vanderbilt Law Review

Protection of common natural resources is one of the foremost challenges facing our society. Since Garrett Hardin published his immensely influential The Tragedy of the Commons, theorists have contemplated the best way to save common-pool resources-—national parks, fisheries, heritage sites, and fragile ecosystems-—from overuse and extinction. These efforts have given rise to three principal methods: private ownership, community governance, and use restrictions. In this Essay, we present a different solution to the commons problem that has eluded the attention of theorists: access rationing. Access rationing measures rely not only on restrictions on the number of users but also on a …

Divergence In Land Use Regulations And Property Rights, Christopher Serkin

Vanderbilt Law School Faculty Publications

For the past century, property rights-and in particular development rights-have been circumscribed and largely defined by comprehensive local land use regulations. As any student of land use knows, zoning across the country shares a common DNA. Despite their local character, zoning limits on development rights in almost every American jurisdiction share a deep family resemblance borne from their common origin in the Standard Zoning Enabling Act ("SZEA"). Zoning for much of the twentieth century therefore converged around a core goal of separating incompatible uses of land as a kind of ex ante nuisance prevention. Of course, zoning went much farther …

Energy Exactions, Jim Rossi, Christopher Serkin

Vanderbilt Law School Faculty Publications

Exactions are demands levied on residential or commercial developers to force them, rather than a municipality, to bear the costs of new infrastructure. Local governments commonly use them to address the burdens that growth places on schools, transportation, water, and sewers. But exactions almost never address energy needs, even though local land use decisions can create signficant externalities for the power grid and for energy resources.

This Article proposes a novel reform to land use and energy law: "energy exactions"-understood as local fees or timing limits aimed at addressing the energy impacts of new residential or commercial development. Energy exactions …

Insuring Takings Claims, Christopher Serkin

Vanderbilt Law School Faculty Publications

Local governments typically insure themselves against all kinds of losses, from property damage to legal liability. For small- and medium-sized governments, this usually means purchasing insurance from private insurers or participating in municipal risk pools. Insurance for regulatory takings claims, however, is generally unavailable. This previously unnoticed gap in municipal insurance coverage could lead risk averse local governments to underregulate and underenforce existing regulations where property owners threaten to bring takings claims. This seemingly technical observation turns out to have profound implications for theoretical accounts of the Takings Clause that focus on government regulatory incentives. This Article explores the impact …

Gaming The Past: The Theory And Practice Of Historic Baselines In The Administrative State, J.B. Ruhl, Robin Craig

Vanderbilt Law School Faculty Publications

This article explores in detail the attributes and operation of historic baselines. That historic baselines are found throughout regulatory law is no accident. Particularly when the policy goal involves turning back the clock or halting an undesirable trend, historic baselines have distinct advantages compared to alternative techniques for standard setting. These advantages include rhetoric, familiarity, and flexibility. The use of the temporal reference point lies at the heart of what makes historic baselines distinct in this respect, yet it is also what makes them qualitatively different for purposes of gaming. Leveraging the past provides an additional dimension to the gaming …

Putting A Stop To Sprawl: State Intervention As A Tool For Growth Management, Lesley R. Attkisson

Vanderbilt Law Review

"Sprawl is America's most lethal disease." Although such a statement appears exaggerated upon first consideration, both the scope of urban sprawl and its attendant consequences support the suggestion that sprawl threatens the vitality of the United States. For example, in California, sprawl has reached such a dangerous level that one of the nation's largest banks publicly warned of the potential devastation: "Sprawl has created enormous costs that California can no longer afford. Ironically, unchecked sprawl has shifted from an engine of California's growth to a force that now threatens to inhibit growth and degrade the quality of our life." The …

Local Property Law: Adjusting The Scale Of Property Protection, Christopher Serkin

Vanderbilt Law School Faculty Publications

This Article proposes that local governments should be able to decide for themselves how to protect private property, and then be held to that choice as if it were a local constitutional pre-commitment. Specifically, the Article proposes state enabling legislation to create a mechanism for local pre-commitments around the most contested takings and land use issues, like the meaning of public use, the extent of just compensation, the diminution of value that triggers compensation, and others. The resulting local variation in property regimes would allow consumers - homeowners, developers, and any other property owners - to select the property protection …

Privatization In Eastern Germany: A Comprehensive Study, Rainer Frank

Vanderbilt Journal of Transnational Law

One of the greater problems arising from the reunification of Germany has been the privatization of land in eastern Germany. Initially, the principle that shaped the privatization policies was restitution, the idea that land unlawfully taken by the former East German government should be returned to its rightful owner. A second goal of the privatization program was to stimulate investment in the economy of eastern Germany. These two goals, however, have conflicted. The result has been a policy that has created confusion with regard to the ownership of property and clear title. This Article examines two series of amendments, in …

Special Project - Nashville Model Cities: A Case Study, Richard W. Creswell, Alan Gates, Paul M. Kurtz, Paul R. Regendorf, Samuel W. Bartholomew, Jr., Richard K. Greenstein

Vanderbilt Law Review

The future of the Model Cities program in Nashville is difficult to predict. As of this writing, the program is approaching the end of the first of five action years. The suit filed by the CCC in April 1971, is,more than a year later, still pending. It is, of course, possible that the program may eventually prove successful, but such a result is unlikely. Even if the CCC is replaced as the official citizen participation structure for the program, the ideological constituency from which the group derives its strength will remain. Furthermore, as the CDA continues to build an ad …

Land Use Planning For Industrial Development, Peter J. Winders

Vanderbilt Law Review

For many reasons, a political unit may decide to undertake a program of encouraging the establishment of industry within its borders. This may be effectively done by informing entrepreneurs of the locational advantages which sites within the jurisdiction offer and by increasing the attractiveness of the sites. Research necessary to provide industry with information about possible plant sites and resources will provide part of the data from which projections may be made as to future development of the area. When such projections indicate that an area is one which will in the future be a desirable location for industry, steps …