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- The Future of Natural Resources Law and Policy (Summer Conference, June 6-8) (3)
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Articles 1 - 24 of 24
Full-Text Articles in Law
The New Nuisance: An Antidote To Wetland Loss, Sprawl, And Global Warming, Christine A. Klein
The New Nuisance: An Antidote To Wetland Loss, Sprawl, And Global Warming, Christine A. Klein
UF Law Faculty Publications
Marking the fifteenth anniversary of Lucas v. South Carolina Coastal Council -- the modern U.S. Supreme Court's seminal regulatory takings decision -- this Article surveys Lucas's impact upon regulations that restrict wetland filling, sprawling development, and the emission of greenhouse gases. The Lucas Court set forth a new categorical rule of governmental liability for regulations that prohibit all economically beneficial use of land, but also established a new defense that draws upon the states' common law of nuisance and property. Unexpectedly, that defense has taken on a life of its own -- forming what this Article calls the new …
Background Principles And The Rule Of Law: Fifteen Years After Lucas, James L. Huffman
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
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 …
Land Use Regulation: The Weak Link In Environmental Protection, A. Dan Tarlock
Land Use Regulation: The Weak Link In Environmental Protection, A. Dan Tarlock
All Faculty Scholarship
Professor William Rodgers is one of the handful of legal academics who have shaped and influenced environmental law since it was created out of whole cloth in the late 1960s. The staggering quantity, quality, breadth, and creativity of his scholarship are perhaps unrivaled among his peers. It is easy to criticize the gap between the environmental problems that society faces and the inadequate legal tools and institutions that we have created to confront them. Professor Rodgers has always been able to see both the deep flaws in environmental law and the possibilities for more responsive legal regimes.
Searching For Robin Hood: Suggested Legislative Responses To Kelo, Mark Seidenfeld
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.
The Frontier Of Eminent Domain, Alexandra B. Klass
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
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 …
Britain's Right To Roam: Redefining The Landowner's Bundle Of Sticks, Jerry L. Anderson
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 …
Historical Evolution And Future Of Natural Resources Law And Policy: The Beginning Of An Argument And Some Modest Predictions, Sally K. Fairfax, Helen Ingram, Leigh Raymond
Historical Evolution And Future Of Natural Resources Law And Policy: The Beginning Of An Argument And Some Modest Predictions, Sally K. Fairfax, Helen Ingram, Leigh Raymond
The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)
8 pages.
Includes bibliographical references
"Sally Fairfax, UC-Berkeley, Helen Ingram, UC-Irvine, and Leigh Raymond, Purdue University" -- Agenda
The Growing Influence Of Tort And Property Law On Natural Resources Law: Case Studies Of Coal Bed Methane Development And Geologic Carbon Sequestration, Alexandra B. Klass
The Growing Influence Of Tort And Property Law On Natural Resources Law: Case Studies Of Coal Bed Methane Development And Geologic Carbon Sequestration, Alexandra B. Klass
The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)
19 pages.
"Alexandra B. Klass, Associate Professor of Law, University of Minnesota Law School"
Law Casebook Description And Table Of Contents: Constitutional Environmental And Natural Resources Law [Outline], Jim May, Robin Craig
Law Casebook Description And Table Of Contents: Constitutional Environmental And Natural Resources Law [Outline], Jim May, Robin Craig
The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)
6 pages.
"James May, Widener University School of Law" -- Agenda
The Constitution As Idea: Describing -- Defining -- Deciding In Kelo, Marc L. Roark
The Constitution As Idea: Describing -- Defining -- Deciding In Kelo, Marc L. Roark
Marc L. Roark
In June 2005, the Supreme Court, in a Five to Four Decision, marked its most controversial decision in recent memory. The case of Kelo v. City of New London set off a fire storm of response to the Court's ruling that economic development takings satisfied the Fifth Amendment. This essay is about how the Court uses words, how the defining ability of words creates institutional space in which the Court operates, and which defines things beyond the words. The essay focuses on notions of Space and Place to define physical ideas and institutional ideas.
A Warning To States — Accepting This Invitation May Be Hazardous To Your Health (Safety, And Public Welfare): An Analysis Of Post-Kelo, Joshua Ulan Galperin
A Warning To States — Accepting This Invitation May Be Hazardous To Your Health (Safety, And Public Welfare): An Analysis Of Post-Kelo, Joshua Ulan Galperin
Elisabeth Haub School of Law Faculty Publications
Focusing on Delaware, this article will argue that the United States Supreme Court's decision in Kelo v. New London gave state legislatures an open invitation to shape their public use frameworks, but their responses must be measured and well-reasoned because the consequences of reactionary legislation may put a stranglehold on state and local governments trying to exercise eminent domain for unanimously accepted public uses. Part I will trace the most pertinent federal jurisprudence through Kelo. Part II will survey Delaware’s public use jurisprudence. Part III will introduce the Delaware General Assembly’s legislative response to Kelo. Part IV will serve as …
Rio Grande Designs: Texans’ Nafta Water Claim Against Mexico, Paul Stanton Kibel, Jonathan R. Schutz
Rio Grande Designs: Texans’ Nafta Water Claim Against Mexico, Paul Stanton Kibel, Jonathan R. Schutz
Paul Stanton Kibel
No abstract provided.
The Government Giveth, And The Government Taketh Away: Patents, Takings, And 28 U.S.C. § 1498, Justin Torres
The Government Giveth, And The Government Taketh Away: Patents, Takings, And 28 U.S.C. § 1498, Justin Torres
ExpressO
The argument over whether patents are protected by the Fifth Amendment’s Takings Clause has largely been confined to normative grounds. To the extent that these arguments reference the 1910 Patent Act, the statute that enables patentees to recover “reasonable and entire” compensation for infringement by the government (later codified as 28 U.S.C. § 1498), they conclude that the provision adds little to the argument. And in Zoltek Corp. v. United States, the Court of Appeals for the Federal Circuit determined that the very existence of § 1498 indicates that there is no Fifth Amendment claim for patent infringement, since an …
Taking Compensation Private, Abraham Bell, Gideon Parchomovsky
Taking Compensation Private, Abraham Bell, Gideon Parchomovsky
All Faculty Scholarship
In light of the expansive interpretation of the ""public use"" requirement, the payment of ""just compensation"" remains the only meaningful limit on the government's eminent domain power and, correspondingly, the only safeguard of private property owners' rights against abusive takings. Yet, the current compensation regime is suboptimal. While both efficiency and fairness require paying full compensation for seizures by eminent domain, current law limits the compensation to market value. Despite the virtual consensus about the inadequacy of market compensation, courts adhere to it for a purely practical reason: there is no way to measure the true subjective value of property …
Grasp On Water: A Natural Resource That Eludes Nafta's Notion Of Investment, Paul Stanton Kibel
Grasp On Water: A Natural Resource That Eludes Nafta's Notion Of Investment, Paul Stanton Kibel
Paul Stanton Kibel
No abstract provided.
Enacting Libertarian Property: Oregon's Measure 37 And Its Implications, Michael Blumm
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 …
Political Institutions, Judicial Review, And Private Property: A Comparative Institutional Analysis, Daniel H. Cole
Political Institutions, Judicial Review, And Private Property: A Comparative Institutional Analysis, Daniel H. Cole
Articles by Maurer Faculty
Since Madison, jurists of all ideological stripes have more or less casually presumed that constitutional judicial review is absolutely necessary to protect private property rights against over-regulation by political bodies. During the twentieth century, this presumption led directly to the institution of regulatory takings doctrine.
Recently, the economist William Fischel and the legal scholar Neil Komesar have raised important questions about, respectively, the utility and the sufficiency of constitutional judicial review for protecting private property. This article supports their arguments with theoretical and historical evidence that constitutional judicial review (1) is not strictly necessary for protecting private property rights, and …
The Downlow On Kelo: How An Expansive Interpretation Of The Public Use Clause Has Opened The Floodgates For Eminent Domain Abuse, Eric L. Silkwood
The Downlow On Kelo: How An Expansive Interpretation Of The Public Use Clause Has Opened The Floodgates For Eminent Domain Abuse, Eric L. Silkwood
West Virginia Law Review
No abstract provided.
The Changing Face Of Vested Rights In Texas Land Development: A New Hat For An Old Law., Rebecca A. Copeland
The Changing Face Of Vested Rights In Texas Land Development: A New Hat For An Old Law., Rebecca A. Copeland
St. Mary's Law Journal
The Texas Legislature has recently made changes to Chapter 245 of the Local Government Code giving vested rights greater protection than ever before. Owners and developers now have greater protections, however, there are many circumstances under which the application of the law is unclear. Chapter 245 governs the issuance of permits for local development. The greater protections provided by the amendments include: defining the filing date upon which rights vest as the date “fair notice” is given to the regulatory agency, establishing a certified mail date as prima facie proof of the application’s filing date, and providing substantive rules governing …
Planning As Public Use?, Nicole Stelle Garnett
Planning As Public Use?, Nicole Stelle Garnett
Journal Articles
This short Essay explores the Supreme Court's suggestion in Kelo v. New London that public, participatory planning may be a constitutional safe harbor that separates impermissible private takings from presumptively valid public ones. After briefly reviewing the Court's discussion of the planning that preceded the Kelo litigation, the Essay examines how Kelo's emphasis on planning departs from standard rational basis review of economic policies and asks what such a departure means for future public-use litigants. The Essay then explores three possible practical benefits of a constitutional rule that encourages the government to engage in detailed planning before exercising the power …
A Window Into The Regulated Commons: The Takings Clause, Investment Security, And Sustainability, Josh Eagle
A Window Into The Regulated Commons: The Takings Clause, Investment Security, And Sustainability, Josh Eagle
Josh Eagle
The holding of the U.S. Court of Appeals for the Federal Circuit in American Pelagic Fishing Co. v. United States points to the conclusion that the government will almost never be liable, under the Takings Clause, when fisheries regulations reduce the value of commercial fishing permits, vessels, or gear. From the perspective of natural resource economics, this is a healthy result. Economists suggest that solving commons problems requires that natural resources be under the complete control of a sole owner who makes self-interested decisions about resource use, and if the Fifth Amendment required the government owner to compensate fishermen when …
The Takings Clause, Version 2005: The Legal Process Of Constitutional Property Rights, Mark Fenster
The Takings Clause, Version 2005: The Legal Process Of Constitutional Property Rights, Mark Fenster
Mark Fenster