Disclaiming Property

Can Congress pick and choose when it must follow the Constitution? One would expect not, and yet the Supreme Court has allowed it to do so. In multiple statutory programs, Congress has disclaimed constitutional property protections for valuable interests that otherwise serve as property. The result is billions of dollars’ worth of “disclaimed property” that can be bought, sold, mortgaged, or leased, but that can also be revoked at any moment without due process or just compensation. Disclaimed property already represents a great source of value, and property disclaimers are at the core of major recent policies ranging from natural resource management to intellectual property governance. As legislatures continue with market-based regulations for environmental concerns or licensing arrangements for the sharing economy, the use of disclaimed property is poised to expand even further. As a relatively recent phenomenon, property disclaimers have gone largely unconsidered by courts and scholars, but their increased importance now calls for closer study. Accordingly, this Article offers a practical and theoretical analysis of disclaimed property. It begins by examining property disclaimers arising in contexts that range from natural resources to intellectual property. It then synthesizes the judicial treatment of these interests and offers a model for valuing constitutional property protections. Building upon this background, it evaluates the constitutionality of property disclaimers as well as the policy justifications for such provisions. After a doctrinal and economic analysis, it ultimately concludes that while property disclaimers raise significant political process concerns, they may be constitutional nonetheless. However, the Article also concludes that property disclaimers are apt to be ineffective in their pursuit of legislative flexibility. Thus, this Article counsels that despite the current use and likely expansion of property disclaimers, they do not represent a beneficial or desirable policy tool

Distributed, Nega-, and Reclaimed: Setting Expectations in the New Resource Base

At this point in time, environmental law faces the task of drawing a budget for living within our resource means, and this budget will be tightly stretched. It must provide energy, water, food, and materials to a growing population; it must cope with the depletion of formerly abundant resources; and it must act both to mitigate climate impacts and adapt to the changes already manifesting. To do this, the budgeting must consider resources and uses that have previously been considered insignificant and that have not received attention in terms of ownership, allocation, or governance. Thus, the future of environmental law will involve charting individual property expectations in previously unconsidered resources: society\u27s cast-offs, scraps, and leavings. The history of environmental law has involved defining and refining expectations in property and resource use. Environmental law has addressed the resource impacts of development, set parameters for further resource development, and resolved conflicting uses or claims to resources. In each of these ways, environmental law has served to establish and adjust expectations. Thus, in a generalized sense, environmental law can be described as the governance of resource use with a particular attention to the impacts on the human and natural environment. The future of environmental law will be a variation on this past. It will still involve defining and refining expectations, only this time for a fresh set of new resources, ripe to be utilized. Well, at least for a semi-fresh set of new-ish resources, but certainly ones that are ripe to be utilized. This emerging resource stock is cobbled from formerly insignificant discards and leftovers. For example, new resource stocks can be found in wastewater streams used as water and energy sources, roofs and backyards assembled as power and food production spaces, and foregone consumption considered to be an alternative to increased supply. Distributed generation, nega-watts, reclaimed sewage, conserved water, vacant-lot farming, and rooftop gardens: these are the new resource base, and a major role for environmental law will be in figuring out how to manage them for their maximum potential benefit

Escaping the \u3cem\u3eSporhase\u3c/em\u3e Maze: Protecting State Waters within the Commerce Clause

Eastern states, though they have enjoyed a history of relatively abundant water, increasingly face the need to conserve water, particularly to protect water-dependent ecosystems. At the same time, growing water demands, climate change, and an emerging water-oriented economy have intensified pressure for interstate water transfers. Thus, even traditionally wet states are seeking to protect or secure their water supplies. However, restrictions on water sales and exports risk running afoul of the Dormant Commerce Clause. This Article offers guidance for states, partciularly eastern states concerned with maintaining and improving water-dependent ecosystems, in seeking to restrict water exports while staying within the confines of the Dormant Commerce Clause

Defining Power Property Expectations

To date, most government efforts to promote distributed solar energy have involved incentivizing property owners to undertake voluntary installations. However, that approach is changing, as government actors move to increase distributed solar generation capacity not only through incentive programs, but also through requirements. Such a change from voluntary to mandatory measures represents a seismic shift in the approach to encouraging distributed solar generation, and it may raise objections about interference with property expectations. The Comment addresses those concerns by exploring the nature of property expectations in the energy context and analyzing how courts and legislatures have balanced property expectations against past government measures to encourage energy production and development of underexploited resources. The Comment concludes that throughout the history of energy development in the United States, property owners’ expectations have been understood to accommodate socially beneficial energy production, and that the concerns surrounding the promotion of distributed solar generation counsel a similar approach

Anti-Waste

It may be a bad idea to waste resources, but is it illegal? Legally speaking, what does “waste” even mean? Though the concept may appear completely subjective, this Article builds a framework for understanding how the law identifies and addresses waste. Drawing upon property and natural resource doctrines, the Article finds that the law selects from a menu of five specific, and sometimes competing, societal values to define waste. The values are: 1) economic efficiency, 2) human flourishing, 3) concern for future generations, 4) stability and consistency, and 5) ecological concerns. The law recognizes waste in terms of one or a combination of these values. After identifying waste, the law seeks to eliminate it via targeted anti-waste provisions, which follow one of three approaches. First, “usage-veto” measures empower selected parties to halt perceived wasteful changes to resource uses. Second, “market-facilitating” measures prevent economic waste by encouraging and correcting markets. Third, “sustainability” measures proscribe wasteful overconsumption of resources fundamental to human and ecosystem flourishing. Through this framework, the Article synthesizes seemingly disparate property and resource doctrines into a coherent legal approach to the idea of waste. This overarching understanding of legal waste explains how individual anti-waste provisions originate and operate. Further, the waste framework serves as a practical tool for analyzing whether anti-waste laws remain in touch with current resource contexts and societal preferences. Finally, it offers theoretical insight about how anti-waste provisions work cumulatively to inject a necessary adaptability into property law

Singled Out

David has been “singled out.” He is the only one in his neighborhood legally prohibited from building a house. In a town full of residences, his lot alone must remain vacant. This is unequal, but is it unconstitutional? Courts have continually grappled with this sort of question, vigilantly defending against unfair and unjust singling out. So important is this concern that the Supreme Court has emphasized it as the heart of the Fifth Amendment takings jurisprudence, and an entire Equal Protection doctrine has emerged around it. However, courts and scholars have yet to critically examine the concept of singling-out, and as a result, singling-out protections languish as ineffective and counterproductive. This Article remedies the oversight and presents a solution. By untangling the different singling-out theories, this Article prioritizes the approaches that best serve their underlying values. Moreover, this Article proposes an easily implementable, though counterintuitive, measure for improving both singling-out protections and Fifth Amendment takings jurisprudence

Locker v. State of Nevada, 138 Nev. Adv. Op. 62 (Sep. 1, 2022)

A first or second conviction for a category E felony possession of a schedule I or schedule II narcotic under fourteen grams requires the district court to defer conviction when the defendant consents to a drug treatment plan under NRS 176.211(3)(a)(1). When that statute applies, the courts have no discretion; it must defer to a drug rehabilitation program if the defendant consents

Two Tales of a Region: Japan, the Philippines, and the Economic Theory of Alliances

In Asia, there is an argument among the literature that the rise of China is causing a split in the region’s security and economic hierarchy. China is a growing potential superpower, and it is providing economic incentives towards states traditionally allied with the United States. This paper’s research focus is aimed at looking at the alliance maintenance of the non-major powers in Asia, and how they react to two contesting great powers that provide different incentives. The hypothesis of this paper is that the economic condition of a state affects with whom these non-major powers strengthen their relationship with. A formal model was constructed to portray how economic conditions affect the choice of alliance maintenance when paired with the perception of external threat. A critical case comparison was used to test this hypothesis using the cases of Japan and the Philippines. The analysis supported the hypothesis. A state’s economic condition, coupled with perception of external threat, affects its alliance maintenance in a condition where security and economy are oppositional to each other