Land Use Law Commons^™

Open Hunting Season: Black Bodies As A Threatened Species, Mark C. Grafenreed

Cardozo Journal of Equal Rights & Social Justice

Tracing the Endangered Species Act of 1973 provides striking parallels with the historical, legal, and cultural aspects of bondage mapped upon Black bodies. The United States Congress promulgated the Endangered Species Act to protect and conserve threatened and endangered wildlife species. However, this gives rise to a serious moral dilemma and cognitive dissonance in that nearly 1,500 wildlife species benefit from the Endangered Species Act's protections. At the same time, Black bodies disproportionately suffer without similar federal protections. Congress has strengthened the Endangered Species Act's force through four amendments since its inception, even while there have been mounting threats to …

Do Americans Support More Housing?, Michael Lewyn

Scholarly Works

An analysis of opinion poll data on housing issues. The article finds that Americans generally believe that their community needs more housing of all types, but are more closely divided about whether such housing should be in their own neighborhoods. The article further finds that members of minority groups, lower-income Americans, and younger Americans are more pro-housing than older, affluent whites.

Incomplete Streets, Michael Lewyn

Scholarly Works

Over 1700 complete streets policies have been adopted by state and local government; these policies typically provide that streets shall be designed to benefit all users, not just motorists. This article analyzes some complete streets policies, and concludes that even above-average policies are often too vague and underfunded to significantly change the status quo. The article suggests a variety of reforms that might make complete streets policies more effective.

The Consumer’S Choice To Boycott, Agnes Bresee

Seattle University Law Review

In the wake of employees losing their jobs upon voicing their political opinions concerning Israel, Harvard and Columbia law students’ job offers being rescinded upon expressing support for Palestine, and the names and social media profiles of individuals who support Palestine being collected and listed on Canary Mission, such backlash may leave many Americans wondering what form of resistance to settler-colonialist apartheid is acceptable in the twenty-first century. Recently, the movement to collectively boycott brands like Starbucks, which sued its Worker’s Union for a tweet expressing support for Palestine; Disney, which donated money to Israel; and McDonald’s, where a location …

Squatters Squabbles: The Use Of Mediation To Provide Beneficial Solutions To Adverse Possession Claims In New Jersey, Bayla Zohn

Cardozo Journal of Conflict Resolution

In our society, law is a complex and ever-evolving field, constantly adapting to fit our needs. Yet, there are certain legal matters we would expect to have clear and obvious resolutions. Property ownership should be simple and unambiguous, governed by "established legal rules and precepts." Examine a deed, survey the stated legal owner of the tract of land, and your answer should be uncomplicated. Yet, there are a multitude of complex laws that allow individuals to obtain legal ownership of land in a seemingly illicit fashion.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

A Different Approach To Agency Theory And Implications For Esg, Jonathan Bonham, Amoray Riggs-Cragun

Seattle University Law Review

In conventional agency theory, the agent is modeled as exerting unobservable “effort” that influences the distribution over outcomes the principal cares about. Recent papers instead allow the agent to choose the entire distribution, an assumption that better describes the extensive and flexible control that CEOs have over firm outcomes. Under this assumption, the optimal contract rewards the agent directly for outcomes the principal cares about, rather than for what those outcomes reveal about the agent’s effort. This article briefly summarizes this new agency model and discusses its implications for contracting on ESG activities.

Overseeing The Administrative State, Jill E. Fisch

Seattle University Law Review

In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A History of Securities Law in the Supreme Court, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance …

The Sec, The Supreme Court, And The Administrative State, Paul G. Mahoney

Seattle University Law Review

Pritchard and Thompson have given those of us who study the SEC and the securities laws much food for thought. Their methodological focus is on the internal dynamics of the Court’s deliberations, on which they have done detailed and valuable work. The Court did not, however, operate in a vacuum. Intellectual trends in economics and law over the past century can also help us understand the SEC’s fortunes in the federal courts and make predictions about its future.

The Sffa V. Harvard Trojan Horse Admissions Lawsuit, Kimberly West-Faulcon

Seattle University Law Review

Affirmative-action-hostile admissions lawsuits are modern Trojan horses. The SFFA v. Harvard/UNC case—Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, et. al., decided jointly—is the most effective Trojan horse admissions lawsuit to date. Constructed to have the distractingly appealing exterior façade of a lawsuit seeking greater fairness in college admissions, the SFFA v. Harvard/UNC case is best understood as a deception-driven battle tactic used by forces waging a multi-decade war against the major legislative victories of America’s Civil Rights Movement, specifically Title VI and Title VII …

Feeding The Good Fire: Paths To Facilitate Native-Led Fire Management On Federal Lands, Kevin Burdet

Seattle University Law Review

In 2003, nearly twenty Native American reservations were devastated by wildfires that originated on adjacent federal lands. The San Pasqual Reservation’s entire 1,400 acres were burned along with over a third of its homes, and seventy-five percent of the Rincon Reservation was burned, taking twenty homes with it. These devastating fires, along with others in 2002, brought about the Tribal Forest Protection Act of 2004 (TFPA), which offered hope for Tribes to propose projects on bordering or adjacent federal lands and protect reservation lands in the process. Unfortunately, twenty years later, the TFPA has had a marginal effect in enabling …

A Hard Pill To Swallow: The Abysmal Mental Health Standards Of Detained Immigrant Children In The United States, Rama Bankesly

Seattle University Law Review

After setting foot into the U.S., unaccompanied children must learn to navigate academic and legal systems while receiving little support and carrying the heavy burden of effects of trauma on their mental health. They need access to mental health care from qualified professionals, but as this Comment will explain, they systematically fail to receive care, as can be seen in cases like Doe v. Shenandoah Valley Juv. Ctr. Comm’n. In Shenandoah, an unaccompanied child arrived in the U.S. and was placed in a facility that failed to provide remotely adequate mental health care and in fact was subjected …

Progress And The Taking Of Indigenous Land, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

The taking of Indigenous land in furtherance of other societal goals is so ubiquitous and so fundamental to the American project that sometimes acts of dispossession are not even recognized as such. This Article argues that the generally accepted understanding of Hawaii Housing Authority v. Midkiff, a key case of the American takings law canon, is wrong because it overlooks Native Hawaiian claims to the land taken. Hawai‘i’s Land Reform Act allowed tenants a right to purchase land over the objections of the owner of the underlying property and in Midkiff the U.S. Supreme Court said that states had the …

Democratizing New York’S Eminent Domain Regime, Gregory Wagner

Brooklyn Law Review

Since the Supreme Court’s landmark eminent domain decision in Kelo v. City of New London, forty-three states have amended their eminent domain laws to constrain their own eminent domain powers. New York, however, was not one of them. In Goldstein v. N.Y. State Urban Development Corp., New York’s highest court decided firmly in favor of the state’s broad eminent domain powers, yet counseled New York lawmakers to act to legislatively limit the state’s unbridled eminent domain authority. Again, New York did not do so—allowing an eminent domain regime that leads to systemic deprivation of public participation to remain fully in …

Unlocking The West: A Critique Of Previous Statutory Attempts And A Proposed Statutory Solution To Allow Access To Corner-Locked Public Land, Sawyer J. Connelly

Graduate Student Theses, Dissertations, & Professional Papers

Across the American West, 9.52 million acres of federal and state public lands are inaccessible to the public. The legality of accessing much of those public lands through corner-crossing is unclear in the law because, in the infinitesimal space where four corners of land meet in a checkerboard pattern, there is ambiguity; neither private landowners nor the public can assert an exclusive right or absolute control without infringing upon the rights of the other. This paper discusses the origins of landlocked public land, common law doctrines that inform legal actors in this space, and analyzes federal statute and state legislative …

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

Cultural Property: “Progressive Property In Action”, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

Cultural property law fulfills many of the normative and jurisprudential goals of progressive property theory. Cultural property limits the normal prerogatives of owners in order to give legal substance to the interests of the public or of specially protected non-owners. It recognizes that preservation of and access to heritage resources advance public values such as cultural enrichment and community identity. The proliferation of cultural property laws and their acceptance by courts has occurred despite a resurgent property fundamentalism embraced by the Supreme Court. Thus, this Article seeks to explicate the category of cultural property, its fulfillment of progressive theory, and …

Reducing Food Scarcity: The Benefits Of Urban Farming, S.A. Claudell, Emilio Mejia

Journal of Nonprofit Innovation

Urban farming can enhance the lives of communities and help reduce food scarcity. This paper presents a conceptual prototype of an efficient urban farming community that can be scaled for a single apartment building or an entire community across all global geoeconomics regions, including densely populated cities and rural, developing towns and communities. When deployed in coordination with smart crop choices, local farm support, and efficient transportation then the result isn’t just sustainability, but also increasing fresh produce accessibility, optimizing nutritional value, eliminating the use of ‘forever chemicals’, reducing transportation costs, and fostering global environmental benefits.

Imagine Doris, who is …

License Revoked For Fatal Injury, Ross Sandler

Other Publications

No abstract provided.

Balance In The Basin, Casey Lee Mcclellan

BYU Law Review

The National Environmental Policy Act (NEPA) changed the way land managers and users interact with public lands. However, its stringent requirements are not responsive to today’s environmental and economic realities. For the future of sustainable mineral extraction, there must be a better way. Adaptive management, a more flexible planning process, should be used on public lands to ensure greater leeway for operators, environmentalists, and local economies. By analyzing rural northeastern Utah’s Uinta Basin’s history and existing public land use plans, this Note applies adaptive management to the area to show how thinking outside the box can solve seemingly unsolvable problems.

A New Cobell: The Need For A Continued Buy-Back Program, Liam C. Conrad

American Indian Law Journal

The General Allotment Act of 1887 divided Indian reservations into smaller plots for the supposed benefit of individual Indians. Today, these allotments are severely fractionated, with some 160-acre plots having as many as a thousand owners. Since allotment, Congress has repeatedly attempted to solve this problem. However, only the Cobell Land Buy-Back Program has made any sizeable impact on fractionation levels. This paper examines the fractionation problem and the Cobell Program. Now that the Cobell Program has ended in November 2022, this paper argues that Congress must quickly reauthorize a similar program or fractionation will soon exceed pre-Cobell levels.

Reclaiming Sacred Homelands: Asserting Treaty Rights And The Path Towards Restoration Of The Badger-Two Medicine, Sarah Greenberg

American Indian Law Journal

“In order for law to have an influence in the lives of ordinary people, it must have something to do with the emotional feelings of justice, it must speak to our basic humanity, and it must give us common sense directions as to what behavior and beliefs are right and wrong"

Case Law On American Indians: October 2022 - August 2023, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.

Vietnam's "Entire People Ownership" Of Land: Theory And Practice, Phan Trung Hien, Hugh D. Spitzer

Articles

The Constitution of Vietnam declares that “[t]he Socialist Republic of Vietnam State is a socialist rule of law State of the People, by the People, and for the People.” It also states that land is “under ownership by the entire people represented and uniformly managed by the State.” This means the entire people of Vietnam are collective landowners and the Vietnam State is their “representative.” Given that, how might the public execute its real ownership—rather than treating “people’s ownership” as just a slogan? This article analyzes the gaps in theory and practice in Vietnam, a country with a robust market …

Perlindungan Hukum Terhadap Pemegang Perjanjian Pengikatan Jual Beli Atas Tanah Dimana Sertifikat Tanah Berada Dalam Penguasaan Bank (Studi Putusan Nomor 751 Pk/Pdt/2019), Ahmad Raihan Imani Setiawan, Abdul Salam

Lex Patrimonium

The dynamic and evolving nature of the law, which also gives rise to complexities in societal issues, requires legal certainty, especially concerning the legal protection for parties involved in a Sale and Purchase Agreement (PPJB). The purpose of this paper is to understand the legal position of the buyer based on a PPJB for land and buildings concerning the land that has been used as collateral by the seller to a bank. Additionally, it aims to determine whether the judge’s considerations were appropriate in providing legal protection to the buyer based on the PPJB, as per the verdict Number 751 …

Research On Renewable Energy Project Opposition Selected For Environmental Law And Policy Annual Review Award, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

A publication co-authored by Indiana University Maurer School of Law Dean Christiana Ochoa and 2021 Law School alumna Kacey Cook has been selected to appear in the 17th edition of the Environmental Law and Policy Annual Review.

“Deals in the Heartland: Renewable Energy Projects, Local Resistance, and How Law Can Help” was authored by Ochoa, Cook, and University of Minnesota Law School third-year student Hanna Weil and was published in January 2023 in the Minnesota Law Review.

Navigating The Tension Between Preservation And Development Pressure: Cities’ Imperative To Save Independent Music Landmarks While Simultaneously Providing For Growth, Mary-Michael Robertson

Vanderbilt Journal of Entertainment & Technology Law

While cities can use their power to enact zoning ordinances and create historic preservation districts, these preservation ordinances vary widely across the United States, from allowing almost any type of development to strictly limiting any new development that does not match existing height, density, and use patterns. Within this framework, state legislatures have often limited the types of regulatory actions cities may take, as cities are merely political subdivisions of the state. Some states—known as “Dillon’s Rule” states—restrict cities from taking novel legislative approaches to existing policy issues, such as affordable housing, unless those powers are expressly provided to the …

It Shouldn’T Be This Hard: The Law And Economics Of Business In Indian Country, Adam Crepelle

Utah Law Review

Indian reservation economies have been in shambles for generations. Although some tribes operate successful gaming enterprises, no tribe has a vibrant private sector economy. Law and economics help explain why. Economics is the study of choices, and Indian country’s complex legal rules deter businesses from investing on tribal land. After all, no business wants to spend a year waiting for the federal government to approve a land lease on reservation when land is easily accessible off reservation. Likewise, jurisdictional rules are clear off reservation, but within Indian country, simply determining whether to file a breach of contract suit in tribal, …

Tending Gardens, Ploughing Fields, And The Unexamined Drift To Constructive Takings At Common Law, Douglas C. Harris

All Faculty Publications

Expropriation law in Canada has operated on the basis of two presumptions at common law: that compensation is owing for the compulsory acquisition of property unless specifically indicated otherwise by statute; and, that no compensation is owing for land use regulation unless specifically provided for by statute. In its decision in Annapolis Group Inc. v Halifax Regional Municipality, the Supreme Court of Canada abandoned the second presumption that compensation for land use regulation required a statutory foundation. The majority and dissent proceed on the unexamined foundation that there is a common law basis for compensation in claims for constructive takings …

Brief Of Amicus Curiae Notre Dame Law School Religious Liberty Clinic In Support Of Plaintiffs' Motion For Summary Judgment, Casey M. Nokes, Meredith Kessler

Court Briefs

No. 1:22-cv-00156-CL
St. Timothy's Episcopal Church v. City of Brookings

From the Argument

Congress unanimously enacted the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) to provide sweeping protection for religious exercise against discrimination in land-use regulation. To accomplish this goal, the statute generally prohibits the government from implementing land-use regulations in a manner that imposes a substantial burden on the religious exercise of a person or organization. And several provisions—including the statute’s capacious definition of “religious exercise” and its broad-construction mandate—emphasize the statute’s breadth.