Academic

Kochan on Property, Public Choice, and the Permitting Process

By Lawrence Solum

Donald J. Kochan (Chapman University - School of Law) has posted Ripe Standing Vines and the Jurisprudential Tasting of Matured Legal Wines: Property and Public Choice in the Permitting Process (BYU Journal of Public Law, Vol. 24, No. 1, 2009) on SSRN. Here is the abstract:

From produce to wine, we only consume things when they are ready. The courts are no different. That concept of ?readiness? is how courts address cases and controversies as well. Justiciability doctrines, particularly ripeness, have a particularly important role in takings challenges to permitting decisions. The courts largely hold that a single permit denial does not give them enough information to evaluate whether the denial is in violation of law. As a result of this jurisprudential reality, regulators with discretion have an incentive to use their power to extract rents from those that need their permission.Non-justiciability of permit denials creates perverse incentives for regulators. This Article examines that phenomena.

Full post as published by Legal Theory Blog on June 19, 2009 (boomark / email).