University of Louisville Law Faculty Blog

Digging Deeper into Development & Exclusion: Freedom and the Common Good in Property Rights

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Professor Eric Freyfogle, of the University of Illinois College of Law, is a prolific and thoughtful writer on the legal, socio-cultural, ethical, and ecological dimensions of private property.  How we define rights or freedoms to develop and exclude shapes our land use and environmental practices.  As Professor Freyfogle’s recent work demonstrates, we often misunderstand the nature of private ownership of land and therefore need to dig deeper to the foundations of property as a social institution.

 

Below are abstracts of and links to three articles by Professor Freyfogle that question assumptions about the right to develop and exclude.

 

1) Property's Functions and the Right to Develop, http://ssrn.com/abstract=1075706: 

 

At stake in most contemporary land-use disputes, particularly those involving regulatory takings, is the legal right of land owners to develop or otherwise alter their lands in significant ways. Landowners claim that they possess or should possess this power, while lawmakers conclude that a curtailment of rights would serve the public interest. For various reasons we've had troubles seeing this conflict clearly. What development rights should landowners possess, and what powers should government have to curtail or redefine them? To address these questions we need to see that private property is basically a tool that society uses to promote the common welfare; it is a social institution in which private owners call upon government (including police, courts, and even prisons) to curtail the activities of nonowners. To decide what development options owners ought to possess, given this moral complexity, we need to consider how a sound system of private property can in practice promote the common good. This essay, drawn from a new book on private property, probes the three basic functions of private land ownership with particular regard for development rights. It also probes how increases in the development value of land are due not to labor expended by owners but to the activities of surrounding landowners as a community. This background sets the stage for answering the central question of development rights. A key conclusion is that, while landowners need and deserve substantial protection from interference with on-going activities, there is much less need to protect their hopes of initiating new land uses in the future. What landowners need most is not some protection against future laws limiting development but instead an assurance that such laws will apply widely to all similarly situated landowners.

 

2) Private Property: Correcting the Half Truths, http://ssrn.com/abstract=1075702: 

Today's discussions about private land ownership and regulatory takings build upon a number of critical assumptions about how private property arises, how it relates to liberty, in what sense it is an individual right, what full ownership entails, and how property rights might legitimately change over time. This essay-excerpted from chapter 1 of a new book, On Private Property: Finding Common Ground on the Ownership of Land-steps back from contemporary debates to probe these fundamental assumptions. The assumptions, it claims, tend to be seriously flawed; they are no more than half-right, and need important revision to provide a solid foundation for evaluating where we stand and charting a course ahead. At root, private property is a social institution, created by law and lawmakers and appropriately revised, generation by generation. Private property does not exist primarily to protect individual liberty; indeed, it curtails liberty as much as it protects it. It makes little sense, also, to claim: that property begins when a person takes first possession of a thing; that private property can somehow be crafted as absolute; and that ownership necessarily entails expansive rights to develop. The situation is more complex, and property rights more pliable, tentative, and morally complex. Scholarly writing on private property would likely improve if commentators turned away from Supreme Court rulings on takings and focused instead on the fundamental elements of private property as an essential tool that society uses and continually reshapes to foster shared goals.

 

3) The Enclosure of America, http://ssrn.com/abstract=1024846:

 

Legal memory in the United States has largely forgotten that most of America's landscape was open to public use well into the nineteenth century. Up until the Civil War and even after, landowners in many regions could exclude the public only from lands that they took the time and expense either to fence or cultivate. In the eyes of many, the public held affirmative use rights in these open lands; the landowner's desire to exclude was irrelevant. This paper explores the range of public uses of lands in early America. It considers how and why enclosure occurred and why historians and legal scholars have largely overlooked this chapter in American history. The answers have to do with shifting ideas about the “right to property,” with the diminishing force of natural law, with narrowing ideas of liberty, and with ongoing economic and social change, particularly the coming of industrialization and its growing demand for wage labor. On top of these explanations was a general failure of defenders of the open countryside to find legal ways to talk about and structure the public's use rights. Many states were willing to set aside the common law of trespass, and did so for generations. Yet, defenders of the open countryside never produced an alternative legal vocabulary to protect these public use rights, except in specific, narrow circumstances; they never found a way to incorporate these public use rights into enduring law. Influential judges and treatise writers, largely urban and Eastern, viewed public rural-land rights with contempt. Their interpretation of the situation gained ascendancy by the late nineteenth century, and it has prevailed ever since.

Is Land Use Like Your Family?

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We are captivated by examples of dysfunctions and our observations of imperfections in social systems.  We do this with families (just take a look at television programs that highlight family dysfunctions).  And we do it with land use regulation.  However, just as the family remains a functional, adaptive, dynamic, and resilient institution in society, so does the land use regulatory system.

 

“The Structure of the Land Use Regulatory System in the United States,” which I recently published in the Journal of Land Use and Environmental Law, studies land use planning, regulation, and decision making from a systematic perspective, noting the functionality, adaptability, dynamism, and resilience of this system in mediating between people and their environments.  The article can be downloaded in PDF for free from SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1020305.  Below is the abstract:

 

The land use regulatory system has been criticized for causing or failing to solve social problems and for perceived inherent defects, such as inefficiency, inequality, and environmental harm. These criticisms fail to understand the land use regulatory system in the United States as a dynamic, functional, adaptive system.

This paper systematically analyzes the: 1) functions; 2) location and scale; 3) components; 4) processes; and 5) values of the land use regulatory system in the United States. If we are to improve our land use practices to be fairer, more efficient, and more ecologically responsible, we must understand how land use planning and regulation function and change over time.

Particular attention is given to the role of land use regulation as a mediator between people and places, between communities and power, and between freedom and boundaries. Additional attention is given to the broad array of forces shaping land use decisions, the “thinness” of land use law as a set of rules and limits (contrasted with its role as a source of tools, authority, and discretion), and the “patchiness” of land use regulatory authority in the United States.

This paper also examines a specific issue of law and policy: the extent to which the land use regulatory system can value and conserve ecosystem services – the humanly beneficial services that nature provides. The paper explores both barriers to and opportunities for accounting for ecosystem services in land use planning and regulation.

Faith and Land

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Our legal and policy analyses of land use and environmental issues often overlook the role of religious belief.  Faith and spiritual values shape land use behaviors, policy choices, and social ethics.  A systematic study of the relationships between religious faith and land use and environmental policies can not only inform our understanding of current practices but also aid in assessing the potential for more environmentally responsible land use decisions.  My own commitment to environmental conservation and social justice flows out of my Christian faith, not a particular political ideology or policy pragmatism, even though public policy is necessarily secular, pragmatic, and political.  If we avoid or dismiss assertions of religious values in land use and environmental policy, our empirical analysis is inadequate and our normative judgments are biased.

 

Two relatively recent articles do an excellent job of analyzing the relationships between religious values and the content of our environmental laws.

 

In "The Spiritual Values of Wilderness," http://papers.ssrn.com/sol3/papers.cfm?abstract_id=794184, Notre Dame law professor John Copeland Nagle addresses the spiritual values of the Wilderness Act of 1964, as the following abstract describes:

The Wilderness Act of 1964 is the principal legal mechanism for preserving wilderness in the United States. The law now protects over 100 million acres of federal land, half of which is in Alaska. Yet the contested meaning of the term wilderness continues to affect the management of those wilderness areas, and the designation of additional lands as wilderness areas. Much current thinking about wilderness emphasizes the ecological and recreational interests that Congress cited when it enacted the law. These justifications for wilderness preservation are important, but they are incomplete. They are best supplemented by a better understanding of the spiritual values of wilderness. Religious conceptions have long informed American attitudes toward wilderness, beginning with the hostility that early settlers gleaned from Old Testament images of wilderness lands, and later appearing throughout the writings of John Muir. More recently, the witnesses testifying on behalf of the proposed Wilderness Act during the 1950's and 1960's repeatedly sounded spiritual themes, including biblical examples of the values of wilderness. The decades since the enactment of the law have produced a substantial theological literature that explores the meaning of wilderness. This article integrates the writing about the spiritual values of wilderness into the discussions of the management of wilderness areas, relying upon the examples of Alaskan wilderness lands to consider how to identify new wilderness areas and how to manage existing areas.

 

In "World Religions and the Clean Water Act," http://papers.ssrn.com/sol3/papers.cfm?abstract_id=914571,  Pepperdine land use professor Shelley Saxer and law-and-theology scholar Daryl Fisher-Ogden, explore the common spiritual and ethical themes of major world religions concerning water quality:

Religion could help save the ecology of our planet. Religious ideals are at the core of many people's value system and speaking to this core may help realize the radical ethical changes required to save our planet. Like other political movements throughout the history of the United States, the environmental movement is often inspired by religious ideals. However, sometimes religious values are suppressed in public discourse about environmental law and policy because Americans are uncomfortable with combining religious values and government policy. This article contends that religious values from diverse world religions can inform policy choices in developing regulatory schemes that protect air, water, and land resources. The incorporation of stories from our global religious heritage may enable us to establish a relationship with nature that can provide for human needs while protecting our environmental resources. With the moral power of religion behind an enforcement plan, it has a better chance of success.

First, we examine the major world religions and indigenous spiritualism in an effort to discover how religious views of the human relationship with nature generally influence environmental laws, and more specifically water law. The views towards water held by indigenous people, Buddhists, Jews, and Christians are similar in many respects in that theirs is a religious ethic to preserve nature as it is found in this world, even while their adherents must, by necessity, utilize these resources. Muslims also seek preservation of water quality with a sense of stewardship for future generations while Hindus view water as a life giving force in the world. Regardless of the religious background, there is a well-spring of popular spiritual support for greater preservation and care about water and its quality. Second, we examine the current legal views about the human relationship to the environment, including the definition of property and the constitutional basis for environmental rights, and also consider how world religions view the human relationship to the environment. Third, we practically incorporate religious values into a regulatory structure and examine the impact of religious values on clean water laws by using religious stories, images, and values to provide powerful ways to capture the attention of legislators, enforcement personnel, and the public at large.

While there may be several ethical systems within a community, often the religious and secular environmental approaches come to the same value-decision: achieving the maximum quality of water possible while still providing for human need. The article concludes by advocating that values from world religions be used as a rich, diverse, and proven framework that can enable the relationship between humans and nature to thrive physically and spiritually, rather than wither by operating at cross-purposes. If environmental laws could be designed and implemented with a greater acceptance of religious values in the public dialogue, they might be less susceptible to constant challenge. Secular environmentalists should recognize that many environmental ethical theories have been influenced by religious values and that people with religious views are their allies, not their opponents. Although secular persons may not fully understand religious motivation, by facilitating the entry of religious ideas and vernacular into the environmental dialogue they can build a coalition to achieve their desired end: environmental protection. Religious ideals can supplement secular views to help develop a more robust environmental ethic for the 21st century. Protecting our environment, the very thing which sustains us physically, is too important to be limited to a single spiritual or non-spiritual viewpoint.

National Champions!

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These guys? Oh, right...I remember.

How 'bout these? Nope. (Not yet, at least).

No, these are the champions!

Coaches Mary Jo Gleason, Michelle Grant Rudovich, competitors, David Scott and Scott Powell.

UofL News: UofL law students win national negotiation competition

March 3rd, 2008

A team of University of Louisville law students recently won the American Bar Association Law Student Division’s Negotiation Competition.

Scott Powell and David Scott, third-year students at the Brandeis School of Law, are the first UofL students to win the national competition. They will represent the United States in the International Negotiation Competition in London in July.

Acting as lawyers, Powell and Scott had to negotiate a series of legal problems in a simulated family law case. They defeated 20 other teams from such law schools as the University of California, Berkeley; Northwestern University; Boston College; the University of Tulsa; and the John Marshall Law School in Chicago.

Michelle Grant Rudovich, assistant commonwealth attorney and adjunct professor of law, and Mary Jo Gleason, staff attorney for Judge Denise Clayton with the Kentucky Court of Appeals, serve as team co-coaches. Rudovich was a student on the UofL team that came in third in the 2004 national competition.

“It is very exciting to work with a team that is so exceptional in every way — work ethic, negotiating skill, legal prowess and collaborative style,” Gleason said. “It reflects well on our law school to have students with this level of skill and ability.”

 

 

Sustainable Land Use and Progressive Realism

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Are we making any progress towards land use that is more ecologically sustainable?  Is future progress possible?  These questions don’t have easy answers.  After all, terms like “sustainable development,” “sustainable communities,” and “smart growth” are broad enough to mean a lot of different things to different people and groups.  Their breadth can mask policies that might not be all that environmentally responsible or that might have unintended consequences.  They can result in merely symbolic policies without much substantive effect.  Efforts to achieve effective reforms encounter strong and persistent political, economic, socio-cultural, and psychological barriers.

 

Nonetheless, realism about the prospects of environmentally responsible land use policies cuts both ways.  There are areas of common ground between protecting natural environments and promoting good human quality of life.  There are achievable reforms that are being adopted or considered.  The land use planning and regulatory system has the capacity to promote and demand land use practices that are more environmentally sustainable than current practices.

 

Two different articles make realistic and balanced assessments of progress-to-date on sustainable land use in the United States, focusing primarily on progress among states and localities.  These articles also offer a variety of useful ideas about potential future progress and reform that will carry efforts towards sustainability forward.

 

The first article, written by land use scholar Patty Salkin, is “Squaring the Circle on Sprawl: What More Can We Do?: Progress Towards Sustainable Land Use in the States,” and was published in the Widener Law Journal in 2007.  It can be downloaded in PDF for free from the Social Science Research Network (SSRN) at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1025873.  Professor Salkin’s abstract states:

With almost ten years of nationwide dialogue and experimentation with the legal implementation of smart growth concepts at the state and local levels, this paper pauses to consider whether and to what extent success has been realized. The one certainty in this dynamic intersection of land development and conservation is that there is no one best model adaptable to all fifty states. Rather, to accommodate national diversity in local government structure, cultural relationships of people to the land, and differences in geography and a sense of place, the best lesson learned is that advocates and lawmakers alike must shape and adopt politically palatable policies, programs, and regulations to best fit their unique jurisdictional sustainability needs. However, with the realization that a lot of innovation is taking place at the state level in furtherance of smart growth initiatives also comes the reality that if states fail to continue to promote and refine these programs, the United States will lose the fight for sustainability. This paper examines the recent efforts by states to provide localities with the tools necessary to curb sprawl and to promote sustainable communities.  

 

The second article, written by sustainability expert John Dernbach and neighborhood planner Scott Bernstein, is “Pursuing Sustainable Communities: Looking Back, Looking Forward,” and was published in the Urban Lawyer in 2003.  It can be downloaded in PDF for free from SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=983502.  The abstract for this article states:

This article explains what sustainable development would mean for cities and other communities in the United States, describes U.S. efforts toward sustainable communities between 1992 and 2002, and recommends actions for the next decade. While the connections between environment and development are often abstractions at the national and international levels, they are perhaps nowhere more clear than the places where people live, work, and play. Municipalities should work with each other and with other levels of government to integrate their decision making processes for environment and development, using a strategic planning process and setting goals. Between 1992 and 2002, a small number of local governments addressed sustainable development in some comprehensive way. Sustainable community efforts were most visible on specific issues such as brownfield redevelopment; public access to information, participation, and justice; land use; transportation; housing; public health services; and education. In the coming decade, local governments should adopt and implement sustainable development strategies in coordination with nearby municipalities, and that states and the national government support such efforts. Sustainable development can and should be the organizing principle for improving quality of life and opportunity in our communities. The article also includes recommendations on specific issues.

fiduciary informed consent

When a court adds the fiduciary aspect to regular informed consent, it generally does not require proof by expert testimony.  The financial conflict that a doctor should disclose will be understood by the jury without an expert witness. The "regular" informed consent will still have to be proved in the usual manner.

I say MED-ve-dev, you say med-VYEHD-yev, let’s call the whole thing off

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During the presidential debate last Tuesday, NBC’s Tim Russert made a big deal out of the candidates’ ability to say the name of Dmitry Medvedev, the pliant functionary who Clinton correctly called “Putin’s handpicked successor" but stumbled over the correct pronunciation of his name. (Obama, perhaps wisely, didn't even try). Russert’s smugness was no doubt due to his access to pronunciation guides and his ability to practice a difficult name before employing it in the trivial gotcha game that passes for modern political journalism. Now, unless you run for president, you will likely not be subject to juvenile mind games by snarky gasbags like Russert. But you may want to correctly pronounce the names of foreign leaders and distant lands and, thanks to the Voice of America, you will be able to access the same kind high-quality tools that TV anchors use.

Broadcasters have long relied on reliable pronunciation guides but these tools were usually not available to the public. The guide privately maintained by the BBC’s Pronunciation Unit is the granddaddy of these tools and a current version was recently offered for sale in an affordable book form. (Something especially useful for those of us who like to opine on world affairs in an Oxbridge accent). In the states, the AP has a regularly updated guide available only to subscribers, but bootlegged older versions regularly pop up on websites. Unfortunately, newer names are still circulated privately and generally it’s the newer presidents, tyrants and rebels that beg for pronunciation assistance.

However, the publicly funded Voice of America has an excellent, regularly updated and completely free guide at http://names.voa.gov. It uses a simplified notation system that does not use diacriticals or symbols, but also provides MP3s of the names pronounced. Textual pages explain its methodology, its sources, and give more details on its pronunciation rules.

The BBC, AP and VOA guides give assistance on the names in the news, but occasionally a question arises over older names, obscure geographic locations, and characters in literature and mythology. In this case, I usually turn to some well-worn tools. For personal names, I refer to the first edition of Webster's Biographical Dictionary (1951) and its latest incarnation Merriam-Webster's Biographical Dictionary. The new version dropped hundreds of names but added almost as many; together used together they are fairly complete. Merriam-Webster's Geographical Dictionary is a solid source for place names. Webster’s Second International Dictionary (1934 and other printings) is a great source for help pronouncing the characters of mythic, biblical, and English literary history. The Online Merriam-Webster Dictionary also has pronunciation data (and audio cues) for many geographic and literary names.

Legal Writing Tip - Peer Editing

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This week, the students in my class edited each others' briefs.  As discussed in Editing Tips for the Busy Attorney, having a colleague edit one's work can help an attorney "avoid small errors, and eliminate the potential for a big negative impact."

Tactic One: Ask a colleague, friend, or

relative to swap editing

 

Often attorneys are hesitant to ask a

colleague to edit because it "wastes" the

colleague's time. Yet an agreement with

a colleague to edit each others' work is a

valuable trade for both people. It is difficult

for a reader to catch her own errors

because she understands the ideas she

hopes to convey and is familiar with the

document. Someone else is likely to

catch errors that the author will not

notice. The author, thus, benefits

immensely from a colleague's edits. The

editor too benefits, as each opportunity is

one to hone her own editing skills.

Interested in other tactics?  The article discusses three others.

New Harvard Digital Collection Highlights British Crime Broadsides

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The "Law and Order" and "CSI" of the 18th and 19th century were the half-penny broadsides which broadcasted the lurid details of sensational crimes, trials and hangings. The Harvard Law Library has announced the launch of a new digital collection "highlighting its extensive holdings of crime broadsides." It can be viewed at http://broadsides.law.harvard.edu.

From Harvard: "Just as programs are sold at sporting events today, broadsides--styled at the time as "Last Dying Speeches" or "Bloody Murders"--were sold to the udiences that gathered to witness public executions in eighteenth- and ineteenth-century Britain. The Library's collection of more than 500 of hese broadsides is one of the largest recorded and, to our knowledge, the first to be digitized in its entirety. The examples digitized span the ears 1707 to 1891 and include accounts of executions for such crimes as rson, assault, counterfeiting, horse theft, murder, rape, robbery, and reason. Many of the broadsides vividly describe the results of sentences anded down at London's central criminal court, the Old Bailey, the proceedings of which are now available online at http://www.oldbaileyonline.org."

 

New Blog on Land and the Environment: Mapping the Landscape

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A new blog launches to provide readers with resources on land use and the environment.  "Mapping the Landscape" will feature abstracts of and links to recent publications that address the intersection of land use and environmental issues.  Each blog entry will begin with a short explanatory statement about the importance or usefulness of the featured resource, followed by an abstract and a link to the publication.  The blog will appear weekly (or more frequently at times) and will initially feature articles freely downloadable from the Social Science Research Network.  Many of the posting will relate to themes of environmental responsibility in land use.  Watch for the posting on the first resource in the next few days.

Tony Arnold

Boehl Chair in Property and Land Use

Professor of Law & Affiliated Professor of Urban Planning

Chair of the Center for Land Use and Environmental Responsibility

University of Louisville