Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- Selected Works (12)
- Northwestern Pritzker School of Law (8)
- St. Mary's University (5)
- Villanova University Charles Widger School of Law (5)
- BLR (4)
-
- Pace University (4)
- University of Kentucky (4)
- Seattle University School of Law (3)
- SelectedWorks (3)
- University of Colorado Law School (3)
- University of Michigan Law School (3)
- University of Montana (3)
- Florida International University College of Law (2)
- Fordham Law School (2)
- Maurer School of Law: Indiana University (2)
- Roger Williams University (2)
- Texas A&M University School of Law (2)
- University of Denver (2)
- University of Oklahoma College of Law (2)
- University of Pittsburgh School of Law (2)
- University of South Carolina (2)
- American University Washington College of Law (1)
- Barry University School of Law (1)
- Case Western Reserve University School of Law (1)
- Chicago-Kent College of Law (1)
- Columbia Law School (1)
- Latin American and Caribbean Law and Economics Association (1)
- Marquette University Law School (1)
- New York Law School (1)
- North Carolina Central University School of Law (1)
- Publication Year
- Publication
-
- Donald J. Kochan (5)
- Faculty Publications (5)
- Faculty Working Papers (5)
- St. Mary's Law Journal (5)
- Villanova Law Review (5)
-
- ExpressO (4)
- Law Faculty Scholarly Articles (4)
- Articles (3)
- Elisabeth Haub School of Law Faculty Publications (3)
- Northwestern University Law Review (3)
- Public Land & Resources Law Review (3)
- All Faculty Scholarship (2)
- Kalyani Robbins (2)
- Oklahoma Law Review (2)
- Seattle University Law Review (2)
- Sturm College of Law: Faculty Scholarship (2)
- Articles & Chapters (1)
- Articles by Maurer Faculty (1)
- Barry Law Review (1)
- Books, Reports, and Studies (1)
- Christopher C. French (1)
- Columbia Center on Sustainable Investment Staff Publications (1)
- Donald W. Dowd (1)
- Enrique Pasquel (1)
- Erin Ryan (1)
- Faculty Articles and Other Publications (1)
- Faculty Scholarship (1)
- Fordham Environmental Law Review (1)
- Fordham Urban Law Journal (1)
- George Skouras (1)
- Publication Type
- File Type
Articles 1 - 30 of 97
Full-Text Articles in Law
Soil Governance And Private Property, Sarah J. Fox
Soil Governance And Private Property, Sarah J. Fox
Utah Law Review
This is an Article about soil. In consequence, it is also an Article about our relationship to land, and about how that relationship can and must change to confront the many environmental crises facing the United States. Questions about our relationship with the physical environment around us necessarily come to the fore in conversations about soil because of its several identities. It is one of Earth’s most precious resources—the substance responsible for allowing plants to grow, filtering pollutants out of water, providing habitat to countless organisms, sequestering carbon, and providing many other valuable functions. Soil also, however, makes up the …
Challenging Equality: Property Loss, Government Fault, And The Global Warming Catastrophe, Laura S. Underkuffler
Challenging Equality: Property Loss, Government Fault, And The Global Warming Catastrophe, Laura S. Underkuffler
Northwestern University Law Review
One of the bedrock principles of American property law is that all property owners and all property are protected equally. We do not believe—when it comes to compensation for loss—that poor owners are compensated rigidly and rich owners are not, or that property in private homes is protected rigidly and property in commercial or industrial structures is not. When it comes to compensation due to public or private fault, we believe in absolute equality. Equal treatment of property is at the heart of the liberal state and is the promise of American property law.
This Essay challenges that bedrock idea. …
Ownership Concentration: Lessons From Natural Resources, Vanessa Casado Pérez
Ownership Concentration: Lessons From Natural Resources, Vanessa Casado Pérez
Northwestern University Law Review
Concentration of ownership over land or other resources is both a sign and a cause of inequality. Concentration of ownership makes access to such resources difficult for those less powerful, and it can have negative effects on local communities that benefit from a more distributed ownership pattern. Such concentration goes against the antimonopoly principles behind the homesteading land policies and the legal regimes that regulate many natural resources. This Essay suggests that where concentration is a concern, one might draw lessons for reform by looking to the field of natural resources law, which employs a range of deconcentration mechanisms affecting …
Climate Change Adaptation As A Problem Of Inequality And Possible Legal Reforms, David A. Dana
Climate Change Adaptation As A Problem Of Inequality And Possible Legal Reforms, David A. Dana
Northwestern University Law Review
Climate change will necessitate adaptation in all parts of the United States, but some individuals and localities will be better able to adapt than others. Wealth inequalities among individuals and localities already are translating—and will continue to translate—into inequalities between the rich and poor in their capacity to adapt. Current federal disaster aid programs and policies exacerbate these inequalities by favoring the wealthy, and future government resource management decisions and investments also may broaden the gap between rich and poor in terms of the economic and other costs they will bear from climate change. Some have suggested broadening Takings Clause …
Environmental Permits: Public Property Rights In Private Lands And The Extraction And Redistribution Of Private Wealth, Jason S. Johnston
Environmental Permits: Public Property Rights In Private Lands And The Extraction And Redistribution Of Private Wealth, Jason S. Johnston
Notre Dame Law Review
Back in 1995, Professor Epstein famously termed such use of the permit power a “racket,” and as observed very recently by Dave Owen, still today many landowners and conservative critics would agree with the Supreme Court’s description of the process (in Nollan v. California Coastal Commission) as an “out-and-out plan of extortion.” However extortionate such deals may be, regulators with permit power may require landowners to bargain with them before developing their land or else face legal sanctions. This Essay explores in more detail how such bargaining has played out under two of the most important permit regimes in …
Law Library Blog (March 2021): Legal Beagle's Blog Archive, Roger Williams University School Of Law
Law Library Blog (March 2021): Legal Beagle's Blog Archive, Roger Williams University School Of Law
Law Library Newsletters/Blog
No abstract provided.
My Friend, Charles Reich, Hon. Guido Calabresi
North Carolina's Dueling Property Rights Interests: Water And Hydraulic Fracturing, Rupa Russe
North Carolina's Dueling Property Rights Interests: Water And Hydraulic Fracturing, Rupa Russe
NCCU Environmental Law Review
No abstract provided.
Knick V. Township Of Scott, Alizabeth A. Bronsdon
Knick V. Township Of Scott, Alizabeth A. Bronsdon
Public Land & Resources Law Review
The Supreme Court overruled a 34-year-old precedent and sparked a sharp dissent by holding that a landowner impacted by a local ordinance requiring public access to an unofficial cemetery on her property could bring a takings claim directly in federal court. The decision eliminated a Catch-22 state-litigation requirement that effectively barred local takings plaintiffs from federal court, but raised concerns about government land use and regulation, judicial federalism, and the role of stare decisis.
Money That Costs Too Much: Regulating Financial Incentives, Kristen Underhill
Money That Costs Too Much: Regulating Financial Incentives, Kristen Underhill
Indiana Law Journal
Money may not corrupt. But should we worry if it corrodes? Legal scholars in a range of fields have expressed concern about “motivational crowding-out,” a process by which offering financial rewards for good behavior may undermine laudable social motivations, like professionalism or civic duty. Disquiet about the motivational impacts of incentives has now extended to health law, employment law, tax, torts, contracts, criminal law, property, and beyond. In some cases, the fear of crowding-out has inspired concrete opposition to innovative policies that marshal incentives to change individual behavior. But to date, our fears about crowding-out have been unfocused and amorphous; …
Defining Fishing, The Slippery Seaweed Slope, Ross V. Acadian Seaplants Ltd., Rebecca P. Totten
Defining Fishing, The Slippery Seaweed Slope, Ross V. Acadian Seaplants Ltd., Rebecca P. Totten
Ocean and Coastal Law Journal
In Maine, the intertidal zone has seen many disputes over its use, access, and property rights. Recently, in Ross v. Acadian Seaplants, Ltd., the Maine Supreme Judicial Court, sitting as the Law Court, held that rockweed seaweed in the intertidal zone is owned by the upland landowner and is not part of a public easement under the public trust doctrine. The Court held harvesting rockweed is not fishing. This case will impact private and public rights and also the balance between the State's environmental and economic interests. This Comment addresses the following points: first, the characteristics of rockweed and the …
Property In The Anthropocene, E. Lees
Property In The Anthropocene, E. Lees
William & Mary Environmental Law and Policy Review
Intergenerational justice, community interests, and environmental protection are all goals sought through the imposition of the duties of stewardship onto owners of land. But such duties, when imposed by law, require justification beyond the morality of maintaining and preserving land in a good condition for its present and future use. The potential for sanction imposed by the state means that stewardship duties, if they are to be justified, must be grounded in established principles of justified legal intervention. Of those, the most convincing is, and always has been, the harm principle: intervention is justified where a rule prevents one person …
Whose Land Is It Anyway? Navigating Ghana's Complex Land System, Aimee Kline, Élan Moore, Elizabeth Ramey, Kevin Hernandez, Lauren Ehrhardt, Megan Reed, Morgan Parker, Samantha Henson, Taylor Winn, Taylor Wood
Whose Land Is It Anyway? Navigating Ghana's Complex Land System, Aimee Kline, Élan Moore, Elizabeth Ramey, Kevin Hernandez, Lauren Ehrhardt, Megan Reed, Morgan Parker, Samantha Henson, Taylor Winn, Taylor Wood
Texas A&M Law Review
This Article dives into Ghana’s complex land-registration system, which is influenced by both statutory and customary law. Section II discusses Ghana’s statutory land laws. Section III provides a brief overview of Ghana’s customary land laws. Section IV discusses several obstacles within Ghana’s land-administration system.
Fracking The Public Trust, Kevin J. Lynch
Fracking The Public Trust, Kevin J. Lynch
Sturm College of Law: Faculty Scholarship
Climate change presents an ever more urgent threat, and earlier in 2019, atmospheric carbon dioxide levels reached an all time high for recorded history. Current federal and state policies promoting fossil fuel extraction mean that future governments will have to look very seriously at leaving fossil fuels in the ground, if our society wants to have any hope of avoiding catastrophic climate change.
One of the biggest obstacles to leaving fossil fuels in the ground is the threat of massive takings liability for any government that dares to slow or prevent the extraction of fossil fuels. This has been particularly …
Introduction: Property In Ecology, Jonathan Adler
Introduction: Property In Ecology, Jonathan Adler
Faculty Publications
The papers in this volume explore the further potential for property-based institutions to preserve environmental values and enhance environmental protection. Through case studies, empirical assessments, and consideration of the institutional constraints that may alternatively facilitate or hamper private conservation efforts, these papers deepen our understanding of the institutional context in which conservation occurs and the potential for property-based approaches to supplement, if not supplant, traditional government management of natural resources and environmental regulation. Together, they aim to enhance the conservation potential of property institutions by looking at how such institutions may be extended and defended so as to maximize property’s …
Are Beach Boundaries Enforceable? Real-Time Locational Uncertainty And The Right To Exclude, Josh Eagle
Are Beach Boundaries Enforceable? Real-Time Locational Uncertainty And The Right To Exclude, Josh Eagle
Faculty Publications
Over the past few decades, landowners have tried to use the First, Fourth, and Fifth Amendments to fully privatize the upper, dry-sand part of the beach. If these efforts were to succeed, there would be a host of negative consequences, and not just for surfers. In most of the states in which beaches are economically important, including California, Florida, New Jersey and Texas, privatized dry sand would mean little to no public access at times when the public, wet-sand part of the beach is submerged, that is, in the hours immediately before and after high tides. Decreased beach use would …
Murr And Wisconsin: The Badger State's Take On Regulatory Takings
Murr And Wisconsin: The Badger State's Take On Regulatory Takings
Marquette Law Review
None.
Legislative Exactions And Progressive Property, Timothy M. Mulvaney
Legislative Exactions And Progressive Property, Timothy M. Mulvaney
Timothy M. Mulvaney
Exactions — a term used to describe certain conditions that are attached to land-use permits issued at the government’s discretion — ostensibly oblige property owners to internalize the costs of the expected infrastructural, environmental, and social harms resulting from development. This Article explores how proponents of progressive conceptions of property might respond to the open question of whether legislative exactions should be subject to the same level of judicial scrutiny to which administrative exactions are subject in constitutional takings cases. It identifies several first-order reasons to support the idea of immunizing legislative exactions from heightened takings scrutiny. However, it suggests …
Complementary Authority And The One-Way Ratchet: Ecosystem Services Property, Regulation, And Wildlife Conservation, Kalyani Robbins
Complementary Authority And The One-Way Ratchet: Ecosystem Services Property, Regulation, And Wildlife Conservation, Kalyani Robbins
Kalyani Robbins
Due to the priorities of the Trump Administration, which are not a great match with those of the conservation community, we find ourselves in a period of rollbacks for all kinds of environmental regulation, including the protection of wildlife. When the federal government fails to adequately regulate, we look to other sources of authority to fill that gap. The first and most obvious place to look is to state and local governments. They are our best hope to avoid hemorrhaging vulnerable species during this presidency. Alas, looking at the realities of state wildlife conservation laws, we see the gaps remain. …
Allocating Property Interests In Ecosystem Services: From Chaos To Flowing Rivers, Kalyani Robbins
Allocating Property Interests In Ecosystem Services: From Chaos To Flowing Rivers, Kalyani Robbins
Kalyani Robbins
No abstract provided.
No Farms No Food? A Response To Baylen Linnekin, Joshua Ulan Galperin
No Farms No Food? A Response To Baylen Linnekin, Joshua Ulan Galperin
Elisabeth Haub School of Law Faculty Publications
You have likely seen the bumper sticker, bold white text on a green background, reading “No Farms No Food.” The sticker is a product of, and in fact a tagline for, the American Farmland Trust. On the one hand, the point is obvious: As American Farmland Trust puts it, “[e]very meal on our plates [c]ontains ingredients grown on a farm. We all need farms to survive.” On the other hand, what seems like a plain statement on its face, “no farms no food,” is not so simple. Farms produce affordable food, they produce vast quantities of food, they produce healthy …
Allocating Property Interests In Ecosystem Services: From Chaos To Flowing Rivers, Kalyani Robbins
Allocating Property Interests In Ecosystem Services: From Chaos To Flowing Rivers, Kalyani Robbins
Faculty Publications
No abstract provided.
Complementary Authority And The One-Way Ratchet: Ecosystem Services Property, Regulation, And Wildlife Conservation, Kalyani Robbins
Complementary Authority And The One-Way Ratchet: Ecosystem Services Property, Regulation, And Wildlife Conservation, Kalyani Robbins
Faculty Publications
Due to the priorities of the Trump Administration, which are not a great match with those of the conservation community, we find ourselves in a period of rollbacks for all kinds of environmental regulation, including the protection of wildlife. When the federal government fails to adequately regulate, we look to other sources of authority to fill that gap. The first and most obvious place to look is to state and local governments. They are our best hope to avoid hemorrhaging vulnerable species during this presidency. Alas, looking at the realities of state wildlife conservation laws, we see the gaps remain. …
A Fracking Mess: Just Compensation For Regulatory Takings Of Oil And Gas Property Rights, Kevin J. Lynch
A Fracking Mess: Just Compensation For Regulatory Takings Of Oil And Gas Property Rights, Kevin J. Lynch
Sturm College of Law: Faculty Scholarship
As the Trump administration tries to roll back federal regulations on the oil and gas industry, constituents depend on state and local governments for protection from the worst impacts of industrial-scale fracking. Yet as the debate about proper regulation of the oil and gas industry continues, the specter of potential takings liability looms over the public discourse. Such liability is premised on the idea that government regulation of fracking might constitute a taking of private property that requires payment of just compensation — that is, the amount of money that should be paid to owners if indeed there is a …
Eminent Domain And Oil Pipelines: A Slippery Path For Federal Regulation, Natalie M. Jensen
Eminent Domain And Oil Pipelines: A Slippery Path For Federal Regulation, Natalie M. Jensen
Fordham Environmental Law Review
No abstract provided.
Of Mines And Men: Toward A Foundational Theory Of The Rise, Evolution And Decay Of Property, Guillermo Arribas Irazola
Of Mines And Men: Toward A Foundational Theory Of The Rise, Evolution And Decay Of Property, Guillermo Arribas Irazola
Seattle Journal of Environmental Law
Why and how is property created? Through a historical analysis, this paper proposes that property is created not out of ideology, but by chance. Depending on the resources encountered by newcomers, a rising civilization will establish property through a centralized controlling government (a top-down system) or through people’s recognized possession (a bottom-up or Lockean system). In the former, the government will create and allocate property at its own discretion, while in the latter, the government will recognize and provide protection for the property of individuals.
When the Spaniards conquered Peru in the 1528, they found immense amounts of gold and …
Environmental Control: Guide Or Roadblock To Land Development - A Symposium - Introduction, Donald W. Dowd
Environmental Control: Guide Or Roadblock To Land Development - A Symposium - Introduction, Donald W. Dowd
Donald W. Dowd
No abstract provided.
Riparian Rights In A Polluted World: Property Right Or Tort?, Daniel P. Fernandez
Riparian Rights In A Polluted World: Property Right Or Tort?, Daniel P. Fernandez
Barry Law Review
No abstract provided.
Hawkes Co. V. United States Army Corps Of Engineers, Sarah M. Danno
Hawkes Co. V. United States Army Corps Of Engineers, Sarah M. Danno
Public Land & Resources Law Review
A peat mining company will not be required to obtain a permit under the Clean Water Act to discharge dredged and fill material into wetlands. The United States District Court for the District of Minnesota held that the United States Army Corps of Engineers fell short in its attempts to establish jurisdiction over the wetlands by twice failing to show a significant nexus existed between the wetlands and navigable waters. Further, the district court enjoined the Corps from asserting jurisdiction a third time because it would force the mining company through a “never ending loop” of administrative law.
Do Sagebrush Rebels Have A Colorable Claim? The Space Between Parochialism And Exclusion In Federal Lands Management, Ann M. Eisenberg
Do Sagebrush Rebels Have A Colorable Claim? The Space Between Parochialism And Exclusion In Federal Lands Management, Ann M. Eisenberg
Faculty Publications
This Article asks whether the troubling nature of the Sagebrush Rebellion and similar movements (e.g., their violence, antienvironmentalism, and racist overtones) has made us overly dismissive of a kernel of truth in their complaints. Commentators often acknowledge that federal lands management may be “unfair” to local communities, but the ethical and legal characteristics of the unfairness concern remain under-explored. Although the Sagebrush Rebellion and federal lands communities are far from synonymous, substantial overlap between the complaints and demands of Sagebrush Rebels and the complaints and demands of many regional local (and state) governments suggests that to explore the one necessitates …