Research Scholar

Research Scholar Paper Projects, 2013-14 (Professor Michael Blumm)

These projects, briefly described below, are for 3rd and 4th year students.  All would all involve considerable oversight from me, with the idea that the project would produce a co-authored article.  A prerequisite is that you must have completed at least one upper-class writing requirement.  All are two-semester, three-credit projects that require conferences during the fall semester, a draft paper by the end of the first semester (November 30), and a final by either March 15, or another time we agree to at the beginning of the project.  All would satisfy either of the upper class writing requirements.  There are more topics below than I can supervise in a year; I will pick three or four of them that have the best publication prospects.

You must understand and rigorously adhere to my Paper Writing Commandments, available outside my office or from my secretary.  You must also fill out a Research Scholar application, available from the registrar.

To apply, complete the Research Scholar application found on the Law Registrar’s Important Links page. Submit the application to Professor Blumm, indicating your first, second and third choice of projects.    Selection will be competitive.  You will be notified if you are chosen.

Below are projects I will consider supervising in 2013-14.  They are in no particular order or priority.

1.    Property and Culture-This is a long-term project of mine, which will is survey and expand upon concepts in the first-year property course that reflect the changing felt necessities of the times. The idea is to show that Property is a dynamic, socially sensitive set of concepts, not a static, fixed idea.  Topics that will be covered include the decline of changes in the law of adverse possession, the right to exclude, and the doctrine of waste, and the rule against perpetuities; the abolition of primogeniture and entail; the widespread adoption of landlord mitigation obligations and tenant habitability rights; the evolution of water and nuisance law, the rise of conservation easements; the replacement of easements by necessity with private condemnation rights; and the future of servitude law under the new Restatement.   I will favor people who did well in Property class and perhaps will assign this project to two individuals.

2.    “Background Principles” of Property Law-This is an update project, a follow-up of a 2005 article (29 Harv. Envtl. L. Rev. 321) in which we explored eight or ten “background principles” of property law under the Supreme Court’s Lucas v. South Carolina Coastal Comm’n, where the Court indicated that these principles were defenses to takings claims, even where regulations produce a complete economic wipeout.  This project would update the 2005 article’s findings with case law results over the last eight years or so to see if that article’s conclusions are still valid or are in need of some qualification.

3.    Title Navigability After PPL Montana-In 2012, the Supreme Court overturned a Montana Supreme Court decision that upheld the state’s claim of ownership to Montana riverbeds that would allow the state to charge rent to PPL Montana, a utility with several dams.  A unanimous Court decided that the Montana court had used an improper test to determine title navigability under the so-called “equal footing” doctrine that awards states sovereign ownership of the beds of navigable waters at the time of statehood.  This project would examine this case and its implications for state rights under both the equal footing and the public trust doctrine.

4.    State Statutes and County Ordinances Attempting to Challenge Federal Public Land Ownership-The state of Utah recently enacted a law that attempts to claim control of federal public land within the state; Arizona is considering a similar law. There are a number of counties, including several in Oregon, which have passed ordinances claiming that the federal ownership of land is unconstitutional.  These developments amount to a resurgence of what in the 1970s and 1980s was called “the Sagebrush Rebellion” (former President Reagan called himself a “Sagebrush Rebel”).  This project, for someone who is or has taken the Public Lands course, would collect and analyze these statutes and ordinances and determine whether they have any legal validity and, if they don’t (which is probable), whether they have political viability.

5.    Reserved Rights in Federal Public Land Law—Reserved rights have had a powerful influence on federal public land law, particularly concerning federal land preservation, water and mineral rights, and state land selections.  This project would survey reserved rights in all these areas, focusing both on their influence in the historical development of public land law and on recent controversies, such as the withdrawal of national forest land surrounding Grand Canyon National Park from uranium mining, reserved water rights in the Klamath Basin and Snake River Adjudications, reserved mineral rights in the Allegheny National Forest, reserved coal lands in RS 2477 rights-of-way, and developments in “in lieu” state land selections.  The idea would be to tie all these developments together and say something about the continuing role of the reserved rights doctrine in federal public land law.  Public Land Law is a requirement for this project, although the course could be taken contemporaneously with the project.

6.      Studying America’s Public Lands: A History of Public Land Law Review Commissions—Throughout American history, the future of federal public lands has occupied policy makers.  Over the years, Congress has commissioned no fewer than four public land law review commissions, beginning in 1879 and culminating most recently in 1970.  This project would survey the results of those efforts and suggest whether Congress or the President should convene a new commission to take into account sea-changes like climate change that affect contemporary public land management.  For someone who is taking or has taken Public Land Law.

7.    The Engendered Species Act and Climate Change: Recent Developments—The ESA confronts climate change in many different ways—in listing decisions, critical habitat designations, in biological opinions, and in habitat conservation plans.  This project would survey recent developments  concerning  healthy forest regulations (counterpart-like regulations), the sage grouse (attempts to avoid listing via candidate conservation agreements), the wolverine (listed due to diminishing snow levels at high elevations, the polar bear (listing recently upheld but critical habitat designation rejected), and the delta smelt (listing led to judicial rejection of  a biological opinion of water project operations).  The project would emphasize the role of the public in petitioning for listings and the critical role played by wildlife consulting agencies in fulfilling the ESA’s purposes and in adapting implementation of the statute to meet the challenges of climate change.

8.     The Judicial Role in Changing Course in Environmental Law—During the Bush Administration of the early 21st century, there was a systematic attempt to roll back environmental protections erected during the previous Clinton Administration.  From public land measures to endangered species measures to clean air and water measures, the new administration attempted to promulgate significant changes in previous rules.  However, it was surprisingly ineffective in several of its initiatives, due in large measure to a judicial unwillingness to accept unexplained changes.  Although administrative decisionmaking under the Administrative Procedure Act’s arbitrary and capricious standard of review is deferential, apparently it is elastic—able to demand more of agencies changing course than in initial proposals.  Among the judicial roadblocks this study would consider would be the Forest Service’s roadless rule, the Forest Service’s planning regulation, the survey and manage rule of the Northwest Forest Plan, the Bureau of Land Management’s grazing regulations, and several attempted Endangered Species Act de-listings.  The idea would be to draw some lessons for future Administrations attempting to change the course of environmental and natural resources law.

9.    The Klamath Adjudication and Federal and Tribal Water Rights—In 2013, the Oregon Water Resources Department affirmed that the Klamath Tribes’ water rights in the Klamath Basin were prior and paramount to other water rights in the basin.  The department also made several other interesting interpretations of federal reserved water rights.  This project would analyze this lengthy opinion, which has been some thirty years in the making, as a relatively rare affirmation of federal water rights which have generally fared poorly in state proceedings prior to this one.  Someone with a background in water law is the best prepared person for this project.

10.    The “Culverts Case” and Treaty Fishing Rights Providing Habitat Restoration—In March 2013, the Western District of Washington issued a permanent injunction requiring the state of Washington to repair and rehabilitate road culverts that block salmon migration and spawning.  This decision, which has been under consideration for literally three decades, is a major interpretation of the treaty right of taking fish, to which the federal government agreed in 1850s treaties that allowed peaceful settlement of the Pacific Northwest.  This project would examine this decision and its significance, updating a 2009 article (49 Nat. Res. J. 653) that discussed the preliminary decision in the case.  

11.    The Natural Use Doctrine: A Phantom Doctrine?  In a celebrated 1972 decision, Just v. Marinette County, the Wisconsin Supreme Court ruled that a landowner had no right to transform his land to “unnatural uses” like filling wetlands.  This decision garnered a lot of attention as possibly a transformative one in terms of defining property rights, but a 1980 study considered it to be a “phantom” because it produced little or progeny in Wisconsin.  However, in recent years Just has been cited favorably both in Wisconsin and in several other states.  This project would discuss the viability of the “natural use” doctrine in the early 21st century.

12.    “Takings” of Water Rights-In early 2013, in Casitas Municipal Water Dist. v. U.S., the Federal Circuit affirmed a decision of the Court of Federal Claims rejected a water rights takings claim filed by a California Water District over Endangered Species Act measures that require operational changes to benefit listed steelhead trout, an anadromous species.  The court ruled that the district failed to show an interference with a “beneficial use,” which the court concluded was the essence of a water right under California law.  The court ignored claims of environmentalists that there could be no taking under California water law due to that state’s public trust doctrine.  The district court had refused such claims because it claimed that the state, not a federal court, was the proper entity to weigh public trust versus diversionary water rights.  This decision seems at least temporarily to conclude a series of alleged takings of water rights due to the effects of the ESA on water deliveries due to drought conditions in the early 2000s that also involved decisions affecting Tulare Lake and Klamath Lake in the Court of Federal Claims.  This case note would examine these decisions and decide whether there should be special rules applicable to water rights restrictions that might make constitutional compensation more appropriate in the water rights context than in other property contexts.

13.      Implementing Measure 49: Oregon’s Mid-Course Correction in Land-Use Planning—In 2007, Oregon voters significantly modified the land-use compensation scheme they had approved only three years earlier, basically confining compensation claims (and regulatory waivers) to small developments.  This project would look at the effects of Measure 49 in the half-decade since it took effect, with the idea of saying something about how big a change the measure has worked on what many people consider to be the foremost example of state land use controls.  Useful background is in a previous article (85 Denver L. Rev. 279).

Application

 

 

Research Scholar Paper Projects - 2013–14 Supervised by Professor Susan Mandiberg

Nature of the project: The Research Scholar and I will work in close collaboration to produce a co-authored article.  This is a two-credit project that requires meeting with me at least once a week, a draft paper by the end of fall exam period, and a final by March1 unless we agree on a different schedule.  The student can enroll in either the fall or spring semester but will be required to begin work by the start of classes in the fall and produce a draft by the end of fall-semester exam week.  After comments from me, the student will produce a second draft by the end of January.  We will then work together to produce a paper for submission to law reviews by mid-March.  This schedule is subject to modifications that are mutually agreeable. Completion of the project satisfies either of the upper-division writing requirements.

The Research Scholar must review, understand, and agree to abide by my guidelines for term papers, available on my Term Paper TWEN site.

Pre-requisites:  Criminal Procedure I, Con Law I and II.  Pre-law coursework in sociology or anthropology is helpful but not required.

Selection process: There will be only 1 student selected for this project, based on the information submitted in the Research Scholar application found on the Law Registrar’s Important Links page (please use the application specifically for this project) and, possibly, an in-person or telephone interview. Please submit the application by May 15. 

Description of the project:  In setting standards and rules in Fourth Amendment cases, the Supreme Court occasionally—and perhaps increasingly—turns to an assessment of social norms, expectations, and customs. However, the Court’s use of this approach is inconsistent. In addition, one may question the extent to which the Court’s description of prevailing social norms accurately reflects the reality and diversity of life in the United States, let alone the nuances inherent in social situations. Finally, the Court has not fully come to grips with the effect its own decisions have on social norms and expectations. The article will explore these problems, discuss the reasons for the Court’s use of this device, and suggest resolutions. The project could involve comparisons with the use of social norms in other areas of constitutional law.

 

Application