Condemning the Decisions of the Past: Eminent Domain and Democratic Accountability

This Essay argues that there is a seldom-recognized purpose to eminent domain: preserving the ability of elected representatives to respond to the will of the people. The author proposes that eminent domain allows government to depart from the policy choices of administrations which came before and is therefore a tool for acquiring democratic legitimacy. He explores this theory by examining examples such as breaking up the adult use zones in Times Square and reclaiming New York\u27s waterfront, which had been essentially cut off by highways

Femtosecond soliton amplification in nonlinear dispersive traps and soliton dispersion management

The nonlinear pulse propagation in an optical fibers with varying parameters is investigated. The capture of moving in the frequency domain femtosecond colored soliton by a dispersive trap formed in an amplifying fiber makes it possible to accumulate an additional energy and to reduce significantly the soliton pulse duration. Nonlinear dynamics of the chirped soliton pulses in the dispersion managed systems is also investigated. The methodology developed does provide a systematic way to generate infinite ``ocean'' of the chirped soliton solutions of the nonlinear Schr\"odinger equation (NSE) with varying coefficients.Comment: 7 pages, 10 figures, RevTe

Solitons with Cubic and Quintic Nonlinearities Modulated in Space and Time

This work deals with soliton solutions of the nonlinear Schroedinger equation with cubic and quintic nonlinearities. We extend the procedure put forward in a recent Letter and we solve the equation in the presence of linear background, and cubic and quintic interactions which are modulated in space and time. As a result, we show how a simple parameter can be used to generate brightlike or darklike localized nonlinear waves which oscillate in several distinct ways, driven by the space and time dependence of the parameters that control the trapping potential, and the cubic and quintic nonlinearities.Comment: 4 pages, 6 figures; version to appear in PRE, R

Feshbach Resonance and Growth of a Bose-Einstein Condensate

Gross-Pitaevskii equation with gain is used to model Bose Einstein condensation (BEC) fed by the surrounding thermal cloud. It is shown that the number of atoms continuously injected into BEC from the reservoir can be controlled by applying the external magnetic field via Feshbach resonance.Comment: 4 page

Entrenching Environmentalism: Private Conservation Easements over Public Land

This Article examines how local governments can use private law mechanisms to entrench policy in ways that circumvent typical legal limitations. The Article explores in detail a specific example of a town donating conservation easements over property it owns to a third-party not-for-profit conservation organization to ensure that the property would not be developed in the future. This is nearly the functional equivalent of passing an unrepeatable zoning ordinance to restrict development, something existing antientrenchment rules would never permit. The Article discusses the costs and benefits of using such a device. It theorizes generally about the nature of entrenchment outside public law, and identifies anti-entrenchment protections designed to prevent the worst effects. It ultimately argues that eminent domain serves an important role in allowing subsequent governments to escape the precommitments of prior governments and proposes a modest modification in compensation rules to limit the extent to which conservation easements can entrench conservation

The Wicked Problem of Zoning

Zoning is the quintessential wicked problem. Professors Rittel and Webber, writing in the 1970s, identified as “wicked” those problems that technocratic expertise cannot necessarily solve. Wicked problems arise when the very definition of the problem is contested and outcomes are not measured by “right and wrong” but rather by messier contests between winners and losers. This accurately characterizes the state of zoning and land use today. Zoning is under vigorous and sustained attack from all sides. Conservatives have long decried regulatory interference with private development rights. More recently, progressive housing advocates have begun to criticize zoning for making thriving cities unaffordable and for exacerbating racial segregation. Environmentalists argue that zoning is responsible for urban sprawl and for increasing carbon emissions. Economists blame zoning for restricting residential mobility, which limits fluidity in labor markets and thereby reduces the agglomeration surplus that thriving places like New York and San Francisco should be producing. And these are just some of the concerns. The breadth of these criticisms reveals the multiplicity of issues implicated by modern zoning—from the balance of public power and private rights, to distributional concerns, environmental interests, economic efficiency, and externalities along many dimensions. Most do not admit of a single “right” answer. Zoning is a wicked problem, indeed

Penn Central Take Two

Penn Central v. New York City is the most important regulatory takings case of all time. There, the Supreme Court upheld the historic preservation of Grand Central Terminal in part because the City offset the burden of the landmarking with a valuable new property interest—a transferable development right (TDR)—that could be sold to neighboring property. Extraordinarily, 1.2 million square feet of those very same TDRs, still unused for over forty years, are the subject of newly resolved takings litigation. According to the complaint, the TDRs that saved Grand Central were themselves taken by the government, which allegedly wiped out their value by permissively upzoning neighboring property where they could have been used. The litigation is not only a captivating postscript to Penn Central, but also a compelling context for examining the category of regulatory property more generally. Regulatory property—such as TDRs and pollution credits, for example—is increasingly important and valuable, but raises complicated trade-offs between the need for stability in property-based entitlements and policy flexibility in governance. This Article ultimately argues that the creation of regulatory property should not prevent policy changes far into the future

The Future of Natural Property Law: Comments on Eric Claeys\u27s Natural Property Rights

Professor Eric Claeys is among the most thoughtful modern proponents of natural property rights. His new book, provided to conference participants in draft form, is typical of his rigorously analytical approach. It is an impressive articulation of a natural rights-based account of property. It significantly advances the debate over natural rights and should be taken seriously even by those who do not find it entirely convincing. There are real-world political stakes in abstract-seeming questions of property theory because natural rights are often deployed to limit government regulation of property. Natural rights contrast with positivist accounts that locate the content of property rights in the substance of positive law. Where property rights come from the State, the State has broad authority to reconfigure those rights. Natural rights theorists, like Claeys, want property to be a bulwark against regulation and so insist that property has a pre-political core. That core is deeply contested, however. For rights to be natural, they must apply widely, if not universally, accepted, or at least be derivable in the abstract. To operate at this level, they generally underdetermine the substantive content of property law. Reasoning from natural rights, therefore, often devolves into contingent consequentialist or utilitarian arguments that look anything but natural. Often, natural law is deployed to rationalize existing legal doctrines and rights. But this can sometimes feel like a bit of a failure of imagination, assuming aspects of law are necessary or inherent when in fact, they may be quite contingent. If natural law reasoning can defend even dramatically different substantive property rights, it becomes worryingly thin as a justificatory enterprise. It risks sliding into outcome-driven and conclusory analyses

Public Entrenchment through Private Law: Binding Local Governments

Anti-entrenchment rules prevent governments from passing unrepeatable legislation and ensure that subsequent governments are free to revisit the policy choices of the past. However, governments—and local governments in particular—have become increasingly adept at using private law mechanisms like contracts and property conveyances to make binding precommitments into the future. Simultaneously, courts and state legislatures in recent years have reduced the availability of core de-entrenching tools, like eminent domain, that have traditionally allowed governments to recapture policymaking authority from the past. These changes threaten to shift democratic power intertempor ally. This Article develops a typology of mechanisms for public entrenchment through private law and private rights, as well as core anti-entrenchment protections embedded in the law. It then develops a framework for evaluating entrenchment concerns, comparing the costs of decreased flexibility against the benefits of increased reliance. Viewed through this framework, some recent changes in the law appear particularly problematic, from restrictions on eminent domain, to the rise of development rights, and creative forms of municipal finance like selling assets instead of incurring debt