Law Commons^™

Penn Central After 35 Years: A Three-Part Balancing Test Or A One-Strike Rule?, R. S. Radford

R. S. Radford

Penn Central Transportation Co. v. City of New York has been called the “polestar” of regulatory taking jurisprudence. Yet after 35 years, there is still no consensus on whether Penn Central sets forth a three-part balancing test, or a "one strike, you're out" checklist. This article presents an empirical analysis of how Penn Central is actually applied in the federal courts, finding distinct differences in the application of the test across jurisdictions.

Home Is Where The Art Is: The Impact That Housing Laws And Gentrification Policies Have Had On The Availability And Affordability Of Artist Live/Work Spaces, Mary T. O'Sullivan

Mary T O'Sullivan

Artists have long been praised as creative innovators, respected and admired for their unique perspectives and ability to portray life in a new light. Federal and State Governments have long recognized the cultural value that art and artists provide, and thus, legislatures have passed protective housing laws that provide artists with affordable live/work spaces. Today, though artists have often been portrayed as “starving,” studies on urban policy/planning have shown that where artists live, money and capital growth will follow. Artists are pioneers of gentrification. Thus, urban planners and many communities have sought to provide incentives that promote artist relocation in …

Taking Outcomes Seriously, Daphna Lewinsohn-Zamir

Daphna Lewinsohn-Zamir

The goal of economic efficiency is to promote best outcomes by maximizing the satisfaction of people’s preferences. Given the crucial role of outcomes in efficiency analysis, surprisingly little attention has been devoted to the question of what an outcome actually is. Law-and-economics scholars typically disregard this issue, implicitly adopting the narrowest possible definition of outcome, namely end-results in terms of wealth. Furthermore, no attempt has been made to examine the fundamental question of what notion of outcomes individuals actually embrace.

This Article aims to fill this void by presenting an experimental study of perceptions of outcomes, conducted with both laypersons …

The Legal Profession’S Critical Role In Systems-Level Bioenergy Decision-Making, Jody M. Endres

Jody M. Endres

Mounting resource scarcity confronts policymakers to make decisions based on predictions of complex system behavior under conditions of great uncertainty. Nowhere is this more evident than in bioenergy policy, which relies heavily on modeling to determine biofuels’ effects on complex climate, food and natural systems. This article provides a primer on models’ inner workings to facilitate engagement by the legal field so critical in building and applying models, and remedying them when they fail. Any conceptual model cannot predict future reality with accuracy absent accounting for regulatory and litigatory scenarios that only the legal discipline can assess fully. Administrative law …

Property And Republicanism In The Northwest Ordinance, Matthew J. Festa

Matthew J. Festa

This Article shows that individual property rights held a central place in the republican ideology of the founding era by examining the Northwest Ordinance of 1787. Between the two predominant strains of founding-era political ideology—liberalism and republicanism—the conventional view holds that individual property rights were central to Lockean liberalism, but not to the republican political tradition, where property is thought to have played more of a communitarian role as part of promoting civic virtue and the common good. Republicanism has been invoked in modern debates, and its emphases are present in current ideas such as the important new theory of …

From Pyramids To Stories: Cognitive Reconstruction Of Local Government Authority, John Martinez

John Martinez

This article describes a cognitive science approach to law, uses it to critically evaluate conventional "pyramid" legal analysis of local government authority, and suggests stories as alternative models for defining such authority. The article suggests that stories better reveal what is at stake in regard to local government authority and thus helps us to arrive at better solutions. The article illustrates the storytelling analytical approach in three situations: a local government's condemnation of private property for resale to a private developer, the delegation of land use control authority to neighborhood groups, and local government attempts to zone out nontraditional families.

From Pyramids To Stories: Cognitive Reconstruction Of Local Government Authority, John Martinez

John Martinez

This article describes a cognitive science approach to law, uses it to critically evaluate conventional "pyramid" legal analysis of local government authority, and suggests stories as alternative models for defining such authority. The article suggests that stories better reveal what is at stake in regard to local government authority and thus helps us to arrive at better solutions. The article illustrates the storytelling analytical approach in three situations: a local government's condemnation of private property for resale to a private developer, the delegation of land use control authority to neighborhood groups, and local government attempts to zone out nontraditional families.

Raising Cane: Sugar Sugarcane Ethanol’S Economic And Environmental Effects On The United States, Jonathan M. Specht

Jonathan M Specht

In the coming decades the United States will need to change its energy policy to face two enormous challenges: adjusting to peak oil (declining petroleum production output), and halting the advance of climate change. Liquid biofuels — made from renewable, biologically-based sources of energy, rather than finite and climate change-inducing fossil fuels — will be an important component of any strategy to deal with the twin challenges of peak oil and climate change. While the United States has encouraged the production of biofuels in recent decades, the domestic ethanol industry, which is almost entirely corn-based, has a number of major …

The Ohio Supreme Court’S Perverse Stance On Development Impact Fees And What To Do About It, Alan C. Weinstein

Alan C Weinstein

Ohio is among the twenty-two states that have no enabling legislation for development impact fees. But in a 2000 ruling, Homebuilders Association of Dayton and the Miami Valley, et. al. v. City of Beavercreek, a divided Ohio Supreme Court ruled that municipalities could lawfully enact impact fees under their police and “home rule” powers, provided that the fees could pass constitutional muster under a “dual rational nexus test.” On May 31, 2012, however, the Court ruled in Drees Company, et. al. v. Hamilton Township, that a development impact fee enacted by an Ohio township with “limited home rule” powers was …

The Executive Right To Lease Mineral Real Property In Texas Before And After Lesley V. Veterans Land Board, Chris S. Kulander Ph.D.

Chris S Kulander Ph.D.

The executive right to lease have been recognized by Texas courts as the exclusive right to execute oil and gas leases and is considered a real property right. Where the executive right is owned by one party and the other components of the mineral estate are owned by another, the first party owes the second a duty of “utmost good faith and fair dealing.”

The case of Betty Yvon Lesley, et al. v. Veterans Land Board of the State of Texas, et al. presented to the Texas Supreme Court a case in which the exclusive nature of leasing or development …

Takings And Transmission, Alexandra B. Klass

Alexandra B. Klass

Ever since the Supreme Court’s controversial 2005 decision in Kelo v. City of New London, courts, state legislatures, and the public have scrutinized eminent domain actions like never before. Such scrutiny has focused, for the most part, on the now-controversial “economic development” or “public purpose” takings involved in the Kelo case itself, where government takes private property to convey it to another private party who promises to develop the property in a way that will increase the tax base, create new jobs, assist in urban renewal, or otherwise provide economic or social benefits to the public. By contrast, until recently, …

Rationalizing Risks To Cultural Loss In Resource Development, Sari M. Graben

Sari M Graben

Abstract In this article, I consider the implications of culture for valuation of cultural loss in cost benefit analysis. I argue that rational choice models have a difficult time quantifying cultural values because they have yet to grapple with the way experts tasked with cost benefit analysis translate knowledge about cultural worldviews for the purposes of comparison. This translation can alter the valuation of the risk so as to undermine the representation of a loss, rather than identify it. However, instead of rejecting the consideration of cultural loss in cost-benefit analysis outright, I build on dialogical approaches to governance that …

Hydropower: It's A Small World After All, Gina Warren

Gina Warren

Global warming is here. As exhibited by the recent droughts, heat waves, severe storms and floods, climate change is no longer a question for the future, but a problem for the present. Of the many ways to help combat climate change, this article discusses the use of the most abundant renewable energy source on the plant – water. While large-scale hydropower (think Hoover Dam) is unlikely to see increased development due to its negative impact on the environment, fish, and wildlife, small-scale hydropower (think a highly technologically-advanced water mill) is environmentally-friendly and would produce clean, renewable energy to benefit local …

Stewardship And Dominium: How Disparate Conceptions Of Ownership Influence Possession Doctrines, Martin Hirschprung

martin hirschprung

The law is ambiguous regarding the level and extent of possession necessary to effect ownership. It can be argued that one’s conception of the nature of ownership influences this standard of possession. I further argue that the application of the concept of stewardship to questions of possession will aid in resolving the disputes between museums and indigenous groups regarding cultural artifacts. In order to demonstrate the relationship between one’s conception of ownership and its attendant standard of possession, it is useful to contrast different legal definitions of ownership, particularly the Roman concept of dominium, with a religious model of stewardship …

Community Benefits Agreements And Comprehensive Planning: Balancing Community Empowerment And The Police Power, Patricia E. Salkin, Amy Lavine

Patricia E. Salkin

Traditionally, the states have empowered local governments to develop plans and implement regulations for neighborhood and community development. When accomplished at the local or regional level, the interests and benefits of the community as a whole are to be weighed against the detriments to individuals. Much has been studied and written about the lack of meaningful public participation in the planning and land use regulatory process, suggesting that often low-income and minority communities are not fully engaged in the process, even when it may result in decisions negatively impacting their neighborhoods. Case studies have also shown that governments are sometimes …

A Catch 22: The Price To Pay For Property Rights Under The Clean Water Act And Administrative Compliance Orders, Lindsey F. Brewer

Lindsey F. Brewer

Environmental conservationist groups often argue that private-property owners are alert to wetland designations -- especially in their own backyard -- and as a result no procedural due process is necessary for the EPA to issue an administrative compliance order (ACO). But as a practical matter it is very difficult to make a wetland determination, and individual private-property owners are building residential homes on potential wetlands without knowledge. The result is forced and costly compliance with the EPA. The environmental concerns are valid, but property and liberty interests are protected by the Constitution. How can the Court strike a balance between …

The Role Of The Law In The Availability Of Public Transit And Affordable Housing In Atlanta’S West End, Elliott Lipinsky

ELLIOTT LIPINSKY

Single family home prices in West End will remain below $250,000 on average due to the generous grants and investment incentives provided by the City of Atlanta and the State of Georgia. Atlanta wants to create affordable, well-designed urban housing. This housing will provide anyone in Atlanta an affordable place to live. The West End is the perfect example of the City’s attempts to create such an environment. Furthermore, the Sky Lofts of West End offer brand new affordable housing in the West End through developer grants, tax abatements, and down payment loans. These government-created incentives have provided affordable housing …

The Oregon And California Railroad Grant Lands’ Sordid Past, Contentious Present, And Uncertain Future: A Century Of Conflict, Michael Blumm

Michael Blumm

This article examines the long, contentious history of the Oregon & California Land Grant that produced federal forest lands now managed by the Bureau of Land Management (“O&C lands”), including an analysis of how these lands re-vested to the federal government following decades of corruption and scandal, and the resulting congressional effort that created a management structure supporting local county governments through overharvesting the lands for a half-century. The article proceeds to trace the fate of O&C lands through the “spotted owl wars” of the 1990s, the ensuing Northwest Forest Plan (NWFP), the timber salvage rider of 1995, and the …

What’S Blowin’ In The Wind? The Use Of Coal Ash In Landfills And The Power Of Local Governments To Stop It, Charlie Schmidt

Charlie Schmidt

This paper addresses the use of Coal Combustion By-product (AKA coal ash) as approved "fill" product for landfills. Specifically, it addresses the overlap of Federal, State, and Municipal land use laws as these apply to landfills abutting residential areas. Coal Ash has been approved by the Virginia Department of Environmental Quality (DEQ) to use as fill material in landfills. Recently, the Board of Zoning Appeals (BZA) for the County of Henrico, VA, just east of Richmond, VA, rejected a zoning permit to allow East End Resource Recovery (EERR) to import, collect, and store coal ash on site for use as …

The Waters Are Rising! Why Isn’T My Tax Basis Sinking?: Why Coastal Land Should Be A Depreciable Asset In Light Of Global Warming And The Rise In Sea Level, Jason P. Oppenheim

Jason P Oppenheim

Depreciation deductions are the Internal Revenue Code’s method of allowing taxpayers to take deductions on long-term investments. Unlike normal deductions, depreciation requires the taxpayer to apportion the expense over the life of the asset. While most assets used for the production of income may be depreciated, the Internal Revenue Service and courts have never allowed land to be depreciated. The treatment of land as a non-depreciable asset is deeply rooted in the idea that it does not have a useful life—it lasts forever. However, the rate of global warming has increased rapidly over the past fifty years and is expected …

Walking The Tightrope: Balancing Conservation, Local Growth, And The Uncertainty Of Rural Development, Michael A. Powell

Michael A Powell

Economic development is a complex issue, and placing it in a rural context complicates it further, primarily due to issues with local governance and the difficulty in defining the term “rural.” The result is that economic development policies often ignore development in rural areas, and development in those areas becomes uncoordinated and unproductive. One exception is the Growth Management Act (GMA) enacted by the State of Washington, which established a rural development regime that decentralized planning but retained regional and statewide oversight. This paper uses a lawsuit filed against one of the GMA’s regional boards as a case study to …

Delayed Justice: A Case Study Of Texaco Arnd The Republic Of Ecuador’S Operations, Harms, And Possible Redress In The Ecuadorian Amazon, Suraj Patel

Suraj Patel

Multinational corporations engaging in natural resource extraction are often enticed by nascent foreign regulatory regimes and private dispute settlement mechanisms intended to induce investment. The result of a complicit government and poor operational practices can be environmental devastation and widespread human rights violations for which there is little redress. This paper analyzes the challenges inherent in using private dispute resolution mechanisms to hold corporations accountable for regulatory violations through the lens of Texaco’s 30-year operations in the Ecuadorian Amazon and the Aguinda v Chevron litigations in New York and subsequently Ecuador. The case represents the one of the most significant …

Neither Magic Bullet Nor Lost Cause: Land Titling And The Wealth Of Nations, Scott Shackelford

Scott Shackelford

This Article offers a critique of land titling movements. Formalizing property rights is a popular idea. Endorsements range from Ronald Coase, Milton Friedman, Francis Fukayama, and Jeanne Kirkpatrick, to David Owen, and Margaret Thatcher. This Article seeks to determine whether such widespread praise is justified based on an analysis of the available empirical literature on the subject. I argue that instead of property rights formalization being a panacea cure for alleviating poverty in the developing world, it is but one part of a more holistic process of legal reform that is required before economic development might be catalyzed and property …

Opening Doors: Preventing Youth Homelessness Through Housing And Education Collaboration, Courtney L. Anderson

Courtney L Anderson

This article will contribute to the general literature on homelessness by recommending that permanent supportive housing units for homeless children, youth and families provide education services in order to prevent and end homelessness among families, youth and children. I will explain how the legal framework for such housing requires a broad interpretation of the McKinney-Vento Homeless Assistance Act, and assert that federal programs provide a foundation for the creation of such housing. Identifying and educating homeless youth is particularly challenging as the majority of homeless youth live on the streets or in the homes of others, suffer from serious mental …

The Impact Xat, Paul Boudreaux

Paul Boudreaux

At a time when the economy and the housing market rise and fall together, the phenomenon of impact fees complicates the construction of new housing across the nation. Although justified as a means of forcing new development to “pay its way” for the costs of government infrastructure necessitated by the new housing, impact fees typically are imposed in a way that makes them, in effect, a dubious population tax. Indeed, the typical fee does little to discourage costly suburban sprawl. This essay – using economic lessons from policies that discourage usage of scarce resources with light bulbs, bathrooms, and buildings …

The Impact Xat, Paul Boudreaux

Paul Boudreaux

At a time when the economy and the housing market rise and fall together, the phenomenon of impact fees complicates the construction of new housing across the nation. Although justified as a means of forcing new development to “pay its way” for the costs of government infrastructure necessitated by the new housing, impact fees typically are imposed in a way that makes them, in effect, a dubious population tax. Indeed, the typical fee does little to discourage costly suburban sprawl. This essay – using economic lessons from policies that discourage usage of scarce resources with light bulbs, bathrooms, and buildings …

Exclusionary Zoning Enforcement, Passé Or Alive And Kicking?, Tim Iglesias

Tim Iglesias

This article reviews several recent state cases challenging zoning actions as exclusionary. It identifies patterns in the cases and finds that under certain circumstances courts will limit local governments’ exclusionary actions.

Mapping, Modeling, And The Fragmentation Of Environmental Law, David R. Owen

David R Owen

In the past forty years, environmental researchers have achieved major advances in electronic mapping and spatially explicit, computer-based simulation modeling. Those advances have turned quantitative spatial analysis—that is, quantitative analysis of data coded to specific geographic locations—into one of the primary modes of environmental research. Researchers now routinely use spatial analysis to explore environmental trends, diagnose problems, discover causal relationships, predict possible futures, and test policy options. At a more fundamental level, these technologies and an associated field of theory are transforming how researchers conceptualize environmental systems. Advances in spatial analysis have had modest impacts upon the practice of environmental …

Unjustifiable Expectations: Laying To Rest The Ghosts Of Allotment-Era Settlers, Ann E. Tweedy

Ann E. Tweedy

When the Supreme Court decides whether a tribe has jurisdiction over non-members on its reservation or addresses the related issue of reservation diminishment, it often refers implicitly or explicitly to the non-Indians’ justifiable expectations. The non-Indians’ assumed expectations arise from the fact that, when Congress opened up reservations to non-Indians during the allotment era, its assumption, and presumably that of non-Indians who purchased lands on reservations during that period, was that the reservations would disappear due to the federal government’s assimilationist policies, along with the tribes who governed them. To refute the idea that such non-Indian expectations were justifiable, I …

Does The Federal Government Own The Pore Space Under Private Lands In The West? Implications Of The Stock-Raising Homestead Act Of 1916 For Geologic Storage Of Carbon Dioxide, Kevin L. Doran, Angela Cifor

Kevin L Doran

This paper establishes that pursuant to the mineral reservation contained in the Stock-Raising Homestead Act of 1916 (SRHA), as well as U.S. Supreme Court jurisprudence that has further defined the scope of that reservation, the federal government likely holds title to some 70 million acres of subsurface pore space located under private land in the West. In addressing the issue of pore space ownership, scholars and regulators have focused on the question of who owns the pore space when the mineral estate has been severed from the surface estate. This approach, however, overlooks the critical fact that for the approximately …