Category Archives: Land use and Environment

Dana and Wiseman, ‘Fracking as a Test of the Demsetz Property Rights Thesis’

ABSTRACT Since its introduction in 1967, the account of property rights formation by Harold Demsetz has pervaded the legal and economic literature. Demsetz theorized that as a once-abundant, commonly shared resource becomes more valuable and sought-after, users will move to more clearly define property rights in the resource. Despite the high transaction costs of this […]

Donal Nolan, ‘The Essence of Private Nuisance’

ABSTRACT One meaning of the word ‘essence’ is the feature or set of features that defines a thing. My claim in this chapter is that the essence of the tort of private nuisance in this sense is interference with (or impairment of) the usability of the claimant’s land. Although this claim is merely a clarification […]

‘Judicial Law-making in European Private Law’: special issue of European Review of Private Law

Judges in Utopia: The Transformative Role of the Judiciary in European Private Law (Laura Burgers, Joanna Van Duin and Chantal Mak) Judging for Utopia: Climate Change and Judicial Action (Hans Petter Graver) Judicial governance by unfair contract terms law in the EU: Proposal for a New Research Agenda for Policy and Doctrine (Mónika Józon) Judicial […]

Keith Hall, ‘Ruminations on the Continuing Evolution of Trespass Law in the Context of Mineral Development’

INTRODUCTION A trespass is an unauthorized entry upon the land of another. In general, this is a fairly simple legal concept. Indeed, most non-lawyers have a pretty good idea of what ‘trespass’ means. But various complications can arise in the context of oil and gas or mining activities. Some of these complications arise from the […]

Suzanne Kingston, ‘The Polluter Pays Principle in EU Climate Law: An Effective Tool Before the Courts?’

ABSTRACT The polluter pays principle (PPP) is often thought of as an aspirational or guiding principle rather than one that is justiciable by courts. While the principle features in many international conventions in varying formulations, it has not been recognized as a principle of customary international law. The legal status of the PPP in EU […]

Mihnea Tănăsescu, ‘Rights of Nature, Legal Personality, and Indigenous Philosophies’

ABSTRACT This article investigates the relationship between legal personality for nature and Indigenous philosophies by comparing two cases: the Ecuadorian Constitution of 2008 and the 2014 Te Urewera Act of Aotearoa, New Zealand. Through these case studies the article considers the nature of Indigenous relations with the concept of rights of nature, arguing that this […]

Morriss, Meiners and Yandle, ‘Finding Better Words: Markets, Property Rights, and Resources’

ABSTRACT To use or conserve environmental and natural resources effectively is complex. Many economists believe that institutional solutions built around markets and property rights can help improve results. This approach addresses what Peruvian economist Hernando de Soto termed the ‘missing lessons of US history’ – institutions whose designers may not have understood the outcomes that […]

Ballardini, Kaisto and Similä, ‘Developing Novel Property Concepts in Private Law to Foster the Circular Economy’

ABSTRACT This paper highlights the shortcomings of the mainstream utility economic approach to the private law pillar of ‘property’ in fostering socially desirable developments, such as sustainability, important in the context of the circular economy (CE). In this exercise, we take the examples of two prominent private law regimes, namely intellectual property and property laws. […]

Wes Henricksen, ‘Intended Injury: Transferred Intent and Reliance in Climate Change Fraud’

ABSTRACT ‘For an intended injury the law is astute to discover even very remote causation’ – Justice Thurgood Marshall ExxonMobil, the world’s largest oil company, misled the public about climate change for at least two decades. Several states’ attorneys general have opened investigations into the potential criminality of the company’s conduct. The Securities and Exchange […]

Fanny Thornton, ‘Of Harm, Culprits and Rectification: Obtaining Corrective Justice for Climate Change Displacement’

ABSTRACT In light of the accelerating nature of climate change and its effect, it is unsurprising that various entities increasingly resort to courts and tribunals to seek to address the many harms and wrongs that clearly stem from climate change. This article discusses the opportunities in this context for those who face displacement by the […]