Law Commons^™

Comparing & Contrasting Economic And Natural Law Approaches To Policymaking, Eric Kades

Faculty Publications

Eric Claeys’s monograph, Natural Property Rights, offers a comprehensive and thoughtful articulation of a general theory of property rights rooted in the natural law tradition. This detailed review compares Claeys’s work with the consequentialist law and economics perspective on property. After contrasting their objectives, assumptions, and methodologies this article concludes that, unlike more absolutist approaches, Claeys’s flavor of natural property rights places a modicum of weight on the welfare effects central to economic analysis. This restrained nod in the direction of practicality, however, does not eliminate some of the long-known weaknesses of natural law. Perhaps the most glaring gap …

Wetlands, Property Rights, And The Due Process Deficit In Environmental Law, Jonathan H. Adler

Faculty Publications

In Sackett v. Environmental Protection Agency a unanimous Supreme Court held that private landowners could seek judicial review of an Administrative Compliance Order issued by the Environmental Protection Agency alleging that their land contained wetlands subject to regulation under the Clean Water Act. The Court’s decision rested on statutory grounds, but the same result may have been dictated by principles of due process. Under the CWA, federal regulators have asserted authority over waters and dry lands alike and sought to expand federal jurisdiction well beyond constitutional limits. Under existing regulations, landowners have little notice or certainty as to whose lands …

Water Rights, Markets, And Changing Ecological Conditions, Jonathan H. Adler

Faculty Publications

Conventional environmentalist thought is suspicious of private markets and property rights. The prospect of global climate change, and consequent ecological disruptions, has fueled the call for additional limitations on private markets and property rights. This essay, written for the Environmental Law Symposium on 21st Century Water Law, presents an alternative view. Specifically, this essay briefly explains why environmental problems generally, and the prospect of changing environmental conditions such as those brought about by climate change in particular, do not counsel further restrictions on private property rights and markets. To the contrary, the prospect of significant environmental changes strengthens the case …

Pass A Law, Any Law, Fast! State Legislative Responses To The Kelo Backlash, Edward J. Lopez, R. Todd Jewell, Noel D. Campbell

Faculty Publications

The Supreme Court in Kelo v. City of New London left protection of property against takings for economic development to the states. Since Kelo, thirty-seven states have enacted legislation to update their eminent domain laws. This paper is the first to theoretically and empirically analyze the factors that influence whether, in what manner, and how quickly states change their laws through new legislation. Fourteen of the thirty-seven new laws offer only weak protections against development takings. The legislative response to Kelo was responsive to measures of the backlash but only in the binary decision whether to pass any new law. …

Money Or Nothing: The Adverse Environmental Consequences Of Uncompensated Law Use Controls, Jonathan H. Adler

Faculty Publications

The conventional wisdom holds that requiring compensation for environmental land-use controls would severely limit environmental protection efforts. There are increasing reasons to question this assumption. Both economic theory and recent empirical research demonstrate that failing to compensate private landowners for the costs of environmental regulations discourages voluntary conservation efforts and can encourage the destruction of environmental resources. The lack of a compensation requirement also means that land-use regulation is underpriced as compared to other environmental protection measures for which government agencies must pay. This results in the "overconsumption" of land-use regulations relative to other environmental protection measures that could be …

Conservation Cartels: How Competition Policy Conflicts With Environmental Protection, Jonathan H. Adler

Faculty Publications

The alleged purpose of antitrust law is to improve consumer welfare by proscribing actions and arrangements that reduce output and increase prices. Conservation seeks to improve human welfare by maximizing the long-term productive use of natural resources, a goal that often requires limiting consumption to sustainable levels. While conservation measures might increase prices in the short run, they enhance consumer welfare by increasing long-term production and ensuring the availability of valued resources over time. That is true whether the restrictions are imposed by a private conservation cartel or a government agency. Insofar as antitrust law fails to take this into …

Free And Green: A New Approach To Environmental Protection, Jonathan H. Adler

Faculty Publications

Most Americans consider themselves environmentalists, yet most experts are dissatisfied with existing environmental regulations, which are both inefficient and inequitable. Worse, many don't serve environmental goals. This article outlines an alternative approach to environmental policy based on market institutions and property rights rather than central-planning and bureaucratic control. The aim is both to improve environmental protection and lessen the costs ? Economic and otherwise ? Of achieving environmental goals. It seeks to ensure that Americans' environmental values are advanced without sacrificing the individual liberties the American government was created to protect.

The problem with current regulatory approaches is not merely …

Palazzolo, Lucas, And Penn Central: The Need For Pragmatism, Symbolism, And Ad Hoc Balancing, F. Patrick Hubbard

Faculty Publications

The constitutional right to compensation for a governmental taking of property is relatively easy to apply in situations involving a straightforward, physical appropriation of land for a public use like a highway. However, difficulties arise when governmental action consists only of rules that limit an owner's use of land. In most situations, these limits are viewed as burdens an individual is properly subject to as a citizen and land owner. From this perspective, the exercise of the "police power" of the government, which has traditionally been used to prohibit public and private harms, does not usually involve a taking of …