Category Archives: Land use and Environment

Kenneth Stahl, ‘The Trespass/Nuisance Divide and the Law of Easements’

Abstract The law of easements is a mess. In one case, a property owner ends up with a landlocked parcel because, although he had a desperate need to traverse his neighbor’s land to access a public road, the necessity did not arise from the severance of a unified parcel. In another, a landowner’s basement frequently […]

Paul Babie, ‘Climate Change is Eco-Slavery: A Climate Future of Australian Property Law’

Abstract This article considers a simple question: why should the law of property change in the face of climate change? This question receives an equally simple answer: climate change is not only metaphorically slavery, it is slavery. We are not only changing the climate; rather, we are using the environment and the climate to enslave […]

‘State of Empirical Legal Scholarship: Environmental Law’

“As empirical legal scholarship continues to develop and expand, progress varies across the traditional scholarly silos. (Why this is so likely warrants its own careful study.) In an effort to periodically update readers on developments in particular subject areas, Robert Fischman (Indiana) and Lydia Barbash-Riley’s (Indp) paper, Empirical Environmental Law Scholarship, warrants attention as it […]

Joanne Blennerhassett, ‘Mass Environmental Harm – in Principle’

Abstract: Environmental harm is a diverse problem. It can arise in various forms, ranging from environmental disasters causing pollution, to environmental nuisances. Almost by definition environmental harm often affects many and may cause widespread damage, as a result of which it becomes mass environmental harm. Such harm is an inevitable by-product of modern living in […]

Jessica Shoemaker, ‘Pipelines, Protest, and Property’

Abstract: This invited essay analyzes the recent Keystone XL and Dakota Access Pipeline protest movements through a property law lens, emphasizing for an interdisciplinary audience the complex social relationships implicated in most private property dynamics. It includes an overview of the Keystone XL and Dakota Access conflicts through the summer of 2017, but it does […]

Donald Smythe, ‘The Power to Exclude and the Power to Expel’

Abstract: Property laws have far-reaching implications for the way people live and the opportunities they and their children will have. They also have important consequences for property developers and businesses, both large and small. It is not surprising, therefore, that modern developments in property law have been so strongly influenced by political pressures. Unfortunately, those […]

Natasha Affolder, ‘Transnational Carbon Contracting: Why Law’s Invisibility Matters’

Abstract: Contract lawyers are well aware that it is in the boilerplate, in the creation of contractual norms, forms and defaults, that power gets divided and that winners and losers are made. This analysis applies to contractual governance just as it applies to the individual contract setting. This chapter draws on the example of forest […]

Clifford Villa, ‘Is The “Act of God” Dead?’

Abstract: In more than twenty years with the US Environmental Protection Agency (EPA) before joining the legal academy, I saw many communities affected by fires, floods, hurricanes, earthquakes, and other natural disasters. However, I never saw a case where the act of God defense prevailed against environmental liability. Confirming this personal experience, I later learned […]

‘The Real World’

Karen Bradshaw, Settling for Natural Resource Damages, 40 Harvard Environmental Law Review 211 (2016); James W Coleman, How Cheap Is Corporate Talk? Comparing Companies’ Comments on Regulations with Their Securities Disclosures, 40 Harvard Environmental Law Review 48 (2016). My very first law professor, Bob Ellickson, once said to my Torts class: ‘You know how law […]

‘Everything Old is New Again: Breathing New Life into the Fee Simple Absolute’

Lee Anne Fennell, Fee Simple Obsolete, 91 NYU Law Review 1457 (2016), available at SSRN. ‘And don’t throw the past away. You might need it some other rainy day.’ These lyrics to Peter Allen’s song, Everything Old is New Again, sum up the fee simple absolute (‘fee simple’) perfectly. This antiquated doctrine that is the […]