Law and Aesthetics: A Critique and a Reformulation of the Dilemmas

This Article both examines these consequences and explains why they have departed so frequently from the ostensible goals of the policies that produced them. It also surveys the principal legal dilemmas that attend aesthetic policy-making, which is sensitive to the values actually at stake in the type of aesthetic controversies that legal institutions are called upon to resolve in American society. The aesthetic controls addressed are those adopted in such areas as zoning, historic or environmental preservation, and urban design to shape the visual appearance of the built and natural environments. The content of the aesthetics idea is explored through two hypotheses advanced to explain the social interest underpinning these controls. The first, which has dominated aesthetic-legal thought throughout this century, locates that interest in the preservation or creation of a visually beautiful environment. The second, which is outlined in Part IV of this Article, de-emphasizes visual beauty in favor of the compulsion of groups to protect their identity and, more broadly, cultural stability itself by forestalling threats to environmental features and settings that anchor or reinforce these reciprocal values

The BP B1 Bundle Ruling: Federal Statutory Displacement of General Maritime Law

Among the many unresolved legal questions posed by BP’s Gulf well blowout are whether and to what extent maritime tort negligence remedies escape displacement by relevant federal statutes, including, principally, the Oil Pollution Act of 1990 (OPA or OPA 90). OPA jurisprudence over two decades holds that OPA displaces these remedies. Contrarily, however, the United States District Court for the Eastern District of Louisiana’s decision in In re Oil Spill by the Oil Rig “Deepwater Horizon” (hereinafter B1 Bundle) insists that general maritime law affords a parallel track to OPA’s remedies for economic and property oil discharge losses suffered by private claimants. B1 Bundle premises its holding on two contentions. First, OPA’s “silence,” defined as the statute’s failure expressly to displace maritime remedies, demonstrates the United States Congress’s intent to quarantine OPA as a mere supplement to general maritime law. Second, the United States Supreme Court’s decisions in Exxon Shipping Co. v. Baker and Atlantic Sounding Co. v. Townsend authoritatively establish OPA’s nondisplacement of maritime law punitive damages specifically and of maritime remedies as a whole. Neither claim is persuasive. B1 Bundle’s quarantine of federal statutory law–a product of the opinion’s unyielding admiralty-centrism–replicates the misconceived defensiveness of an earlier era’s judges who likewise strained to bar the encroachment of statutes on judge-made common law

Presumptive and Per Se Takings: A Decisional Model for the Taking Issue

Professor Costonis presents a decisional model for the judicial management of compensation practice under the takings clause that comprehends both physical and regulatory incursions. The model contains four elements: a commitment to presumptions rather than per se rules to determine whether property has been taken; a due process-takings phase, in which conflicts between welfare and indemnification concerns are mediated through application of the just share principle; a pure takings phase, in which a measure\u27s fairness in operation is assessed; and a sliding scale to key government\u27s burden of proof in justifying a particular measure in light of the values implicated by the measure. Professor Costonis identifies major developments in modern takings jurisprudence that prefigure the model, and he argues that the per se test adopted by the Supreme Court in Loretto v. Teleprompter Manhattan CATV Corp. fails to accord with these trends. He concludes that the decisional model should replace both Loretto\u27s per se test and the multifactor balancing test used to decide regulatory takings cases