Jonathan Rosenbloom | Drake University (original) (raw)

Papers by Jonathan Rosenbloom

This article presents a preliminary effort to capture the dialogue at the Environmental Law Colla... more This article presents a preliminary effort to capture the dialogue at the Environmental Law Collaborative’s inaugural Workshop. Attendees engaged in the re-conceptualization of sustainability in the age of climate change, premised on evidence that climate change is forcing changes in the norms of political, social, economic, and technological standards. As climate change continues to dominate many fields of research, sustainability is at a critical moment that challenges its conceptual coherence. Sustainability has never been free from disputes over its meaning and has long struggled with the difficulties of simultaneously implementing the “triple-bottom line” components of environmental, economic, and social well-being. Climate change, however, suggests that the context for sustainable decision-making is shifting. The event produced an intensive and collaborative conversation on how to assess sustainability in the age of climate change. The essays appearing here examine the process...

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Land use laws, such as comprehensive plans, site plan reviews, zoning, and building codes, greatl... more Land use laws, such as comprehensive plans, site plan reviews, zoning, and building codes, greatly affect community resilience to climate change. One often-overlooked area of land use law that is essential to community resilience is the regulation of infrastructure on private property. These regulations set standards for the construction of infrastructure built by private developers. Such infrastructure is completed in conjunction with millions of commercial and residential projects and is necessary for critical services, including potable water and energy distribution. Throughout the fifty states, these land use laws regulating infrastructure constructed by private developers encourage or compel " gray infrastructure. " Marked by human-made, engineered solutions, including pipes, culverts, and detention basins, gray infrastructure reflects a desire to control, remove, and manipulate ecosystems. Left untouched, often these ecosystems provide critical services that strengthen a community's resilience to disasters and slow changes. This article describes the current state of land use laws and their focus on human-engineered, gray infrastructure developed as part of private projects. It explores how that infrastructure is reducing community resilience to change. By creatively combining human-engineered solutions with ecosystem services already available and by incorporating adaptive governance into the regulation of infrastructure erected by private parties, the article describes how land use laws can enhance community resilience. The article concludes with several examples where land use laws are relied upon to help build cost-effective, adaptive infrastructure to create more resilient communities.

Environmental Law Reporter , Jan 2015

ABSTRACT This collection of essays is the initial product of the second meeting of the Environmen... more ABSTRACT This collection of essays is the initial product of the second meeting of the Environmental Law Collaborative, a group of environmental law scholars that meet to discuss important and timely environmental issues. Here, the group provides an array of perspectives arising from the Fifth Assessment of the Intergovernmental Panel on Climate Change. Each scholar chose one passage from one of the IPCC’s three Summaries for Policymakers as a jumping-off point for exploring climate change issues and responding directly to the reports. The result is a variety of viewpoints on the future of how law relates to climate change, a result that is the product not only of each scholar’s individual knowledge but also of the group’s robust discussion.

SSRN Electronic Journal, 2000

This Article explores the decisions local governments make when confronted with a global commons ... more This Article explores the decisions local governments make when confronted with a global commons collective action problem. Local governments often assume a role analogous, but not identical, to that of an individual private actor on a traditional commons. Unlike private actors, local governments are subject to a unique set of legal restrictions. This Article analyzes some of those legal restrictions and explores whether the restrictions alter local government “rational” decision making relative to global commons resources. The Article predominantly focuses on international and national laws and how those laws encourage or discourage the sustainable management of global commons resources. The analysis reveals that local governments are often intimately involved in decisions that influence global commons resources, including the atmosphere. Further, international and national restrictions propel local governments into a tragedy of the global commons by, among other things, diluting and limiting local government authority to address multi-jurisdictional commons challenges. In light of this, the Article reimagines the role of local governments and the authority they have to manage global commons resources. The Article offers three examples that selectively reduce barriers prohibiting local governments from sustainably managing resources without sacrificing national sovereignty or supremacy. These examples are designed to facilitate a discussion on incorporating local governments into the international and national discourse on effectively avoiding the misuse of global commons resources.

Adapting the built environment to the challenges of climate change will be expensive. This Articl... more Adapting the built environment to the challenges of climate change will be expensive. This Article examines such costs that fall within the responsibility of local governments and that are relevant to the provision of public services. Specifically, this Article explores the challenges facing local governments when utilizing municipal bonds to fund adaptation and whether municipal bonds are an effective tool to achieve adaptation goals.

Climate change will stress many local government services, such as those services involving stormwater management, potable water, mass transit, waste disposal, and the development and distribution of energy. Faced with steep budget deficits, rising costs, and declining revenues, many local governments are not in a position to absorb the significant costs associated with reducing climate-related risks to these services. The actual and potential risk of sustaining catastrophic losses due to climate changes is such that failing to take steps to protect local infrastructure is not a rational option. Typically, local governments would finance large infrastructure projects by issuing municipal bonds. Based on the unique circumstances surrounding the adaptation of local infrastructure to alleviate climate-induced damage, this Article suggests that municipal bonds will be inadequate to fully fund local adaptation needs. The Article suggests local governments pursue alternative and creative financing methods to supplement the funding of adaptation. Alternatives explored in the conclusion incorporate public/private partnerships as a means of increasing available capital. The alternatives also reconfigure the process of infrastructure financing to account for externalities and ecosystem impacts in an effort to enhance resiliency in investment. The objective is to incentivize investment in adaptation projects and to facilitate the protection of vital local infrastructure necessary to build resilient communities.

Natural capital resources crucial to combatting climate change are potentially subject to tragic ... more Natural capital resources crucial to combatting climate change are potentially subject to tragic overconsumption absent a requisite degree of vertical government regulation of resource appropriators and/or horizontal collective action among resource appropriators. In federal systems, these vertical and horizontal approaches may (or may not) take place in any one of four scales — local, state, national, and global — “nested” one within another. Prior research has described how natural capital in federal systems of government, though privatized and/or subject to government regulation, may nonetheless remain in a tragic plight due to the allocation of governance authority in federal systems — an allocation that may or may not legally entrench the commons dynamic. This Article builds on that research to present a clearer picture of the complexity of natural capital resource commons and does so by first deconstructing the nested commons scales and describing for the first time a number of legal authority and political action scenarios that may either resolve natural capital commons dilemmas or facilitate commons tragedies within the scales of a federal governance structure. The Article then details the “divergent” vertical regulatory and horizontal collective action approaches to managing climate-crucial natural capital within each scale. The Article concludes by pointing toward future scholarship exploring how these “divergent” approaches within scales can become “convergent” by taking into account both legal constraints that may exist on vertical regulation across scales or horizontal collective action within scales as well as geopolitical circumstances positively or negatively impacting political action within scales. This convergent approach encourages the proper management of natural capital resources by more fully accounting for the complexities of the federal governance commons.

SSRN Electronic Journal, 2000

State preemption laws strictly limit local governments from regulating beyond their borders. Loca... more State preemption laws strictly limit local governments from regulating beyond their borders. Local governments, however, face a broad spectrum of challenges which cannot be confined to municipal borders. These challenges freely flow in and out of many local jurisdictions at the same time. The juxtaposition of limited local government authority and multi-jurisdictional local challenges has the potential to create inefficiencies and to discourage local governments from seeking innovative solutions to the challenges they face. In an attempt to help local governments avoid these inefficiencies, this article investigates whether municipal collaborations can encourage local governments to address broad-based environmental, social, or economic challenges notwithstanding state preemption laws. The article draws on 2009 Nobel Prize winner Elinor Ostrom’s work and applies it to previously unexplored questions of municipal collaboration. Guided by Professor Ostrom’s research on geographically situated, individual private sector collaborations, this article envisions public sector municipal collaborations as forming around common challenges, regardless of geographical location. The article proposes that non-place based municipal collaborations, the theoretical framework of which is not explored in the literature, allow a reconceptualization of existing local government authority. The collaborations seek to capitalize on the power local governments already have without departing from existing legal paradigms. This reconceptualization has crucial implications for overcoming many of the multi-jurisdictional challenges faced by local governments.

The objective of the article is not to suggest one local government strategy over another or one level of government action over another, but rather to propose an additional forum for local governments to address pressing local problems. By changing the factors that motivate or discourage cities from working together, the article asserts that some multi-jurisdictional issues are best addressed through collaborations that are not confined by geography.

This essay explores the benefits and challenges presented by incorporating experiential learning ... more This essay explores the benefits and challenges presented by incorporating experiential learning and formative evaluation in the Drake University Law School course, Sustainability & Its Application. The course combined academic inquiry with actual, practical experience to facilitate student professional development, enhance practice skills, and explore a new and rapidly developing area of law. The course was designed to mimic a small law firm focusing on sustainability. The firm developed proposals for our “client,” a public/private non-profit, that would increase sustainability in the City of Des Moines. By the end of the semester, the students produced thorough reports, including draft language to amend the local city code. The reports were presented and defended before the client and the Des Moines City Council.

This essay analogizes the process of implementing lessons with practical import (and in consideration of methodological components that might be adaptable to similar courses) to creating and modifying a recipe for baking cookies. The essay sets forth some thoughts and highlights from decisions on substantive content to implementation of peer review and formative evaluation, and what might be applicable to similar courses.

Over the past ninety years, cities and states have increasingly shifted control and oversight ove... more Over the past ninety years, cities and states have increasingly shifted control and oversight over government services from elected officials to quasi-private entities, called "public authorities". Today, public authorities perform thousands of services previously provided by state and local governments, such as mass transit, economic development and housing. In executing these services, public authorities borrow more money than all of the cities and states combined, and in some states, such as New York, they issue over 90% of the public debt.

While public authorities are authorized to perform public services, they are specifically organized around a private sector model. The most common justification for structuring public authorities around the private sector model is that the model inherently achieves an increase in efficiency and independence in the provision of government services. Despite their rapid growth and increased issuance of debt, public authorities have received little critical analysis. Further, there is no existing standard to establish whether public authorities are meeting "efficiency, expertise and independence."

This article sets forth one such standard based on private sector norms. It evaluates public authorities based on: (1) corporate responsibility measures; (2) market forces; and (3) internal monitoring systems. Based on the analysis, the article proposes a restructuring of public services to form regional governments or municipal cooperation, rooted in collaboration and efficiencies lost in the provision of public services through public authorities.

Lost in the world of legal procedure and substantive case law, the pro se litigant often finds hi... more Lost in the world of legal procedure and substantive case law, the pro se litigant often finds himself confused and overwhelmed, if not frustrated and bitter. Throughout their litigation, pro se litigants are confronted with numerous difficulties, including complying with procedural rules, understanding substantive legal concepts and articulating relevant factual allegations. In wrestling with these complexities, pro se litigants often turn to court personnel for guidance. Court personnel, accustomed to experienced counsel, are rarely trained to address the fear, anger, frustration and communication barriers that are common hurdles when working with pro se litigants. Further complicating communications with the court is the difficult law governing what advice, if any, can be given to assist pro se litigants. The result is that an overburdened court does not have the time and patience to fully weigh each allegation and to review every claim no matter how meritorious.

At the time the article was written, there were no studies tracking, detailing and analyzing how pro se cases moved through the court system. Further, while several courts fashioned methods for processing pro se cases those methods were implemented in a vacuum with no usable data to support the solutions.

In an effort to fill this void, this Article begins with a comprehensive statistical study of 765 non-habeas corpus, non-bankruptcy pro se cases, spanning five years. The goal is to collect and organize critical data previously unavailable and to report the data in a usable format. The Article then determines, based on the data, where innovative programs would have the most impact. Finally, the Article concludes by suggested a cohesive plan to enable the courts to function more smoothly and pro se litigants to have a better opportunity to access courts. The proposal explores the tension between improving efficiency in processing pro se pleadings and encouraging pro se litigation.

This article explores the architecture of the American courtroom and courthouse, in an effort to ... more This article explores the architecture of the American courtroom and courthouse, in an effort to unearth the values and ideals embodied in American jurisprudence. The first section discusses the general notion that architecture, especially public architecture, is a spatial manifestation of social ideology that can be dissected to reveal the underlying ideology that created the architecture. The second section explores the architecture of the American courtroom and courthouse as embodiments of fundamental American legal concepts. The third section embarks on a detailed analysis of the courtroom, to unearth the ideologies underlying the actual application and practice of the law within the courtroom space. The fourth section examines courthouse exteriors in detail in order to unearth an external perception of the law that is practiced within. Finally, the fifth section assesses the insights that the previous two sections provide. That assessment reveals a legal ideology in flux. While courtroom designs have remained largely unchanged, conveying a certain stability and continuity within our legal system, changes in courthouse exteriors to styles reminiscent of corporate architecture seem to indicate that something is changing in the way the public perceives the law’s role in contemporary society.

Books by Jonathan Rosenbloom

Land use laws, such as comprehensive plans, site plan reviews and zoning codes, have important co... more Land use laws, such as comprehensive plans, site plan reviews and zoning codes, have important consequences on infrastructure necessary to provide critical services. As currently drafted, many of those laws rely largely on conventional “gray infrastructure” in which the manufactured, engineered, built environment is viewed as the primary, if not sole, means to provide essential public services. Given the age and status of the existing gray infrastructure, the added pressures to infrastructure from climate change, and the importance of core services such as transportation and the provision of potable water, this essay explores emerging systems that incorporate the greening of gray infrastructure to reduce costs and serve as adaptive models for an uncertain future.

The Law and Policy of Environmental Federalism, 2000

If there is a victim of federalism, it is undoubtedly the community. Localities, in contrast to t... more If there is a victim of federalism, it is undoubtedly the community. Localities, in contrast to the federal government, have a very real stake in the quality of ecosystem functionality, because localities rely on ecosystem services as the beneficiaries of those services. When local governments regulate land uses to prevent degradation of important local ecosystems, they regulate from a purposes that non-local governments simply do not have. This book chapter examines the exercise of federal control over environmental issues and its potential assault on the merits of community. The chapter explores whether imposed homogeneity or sameness at the federal level defeats the benefits of self-identifying communities through land use controls and, if so, whether that is a trade-off we are willing to accept. Our objective is to help clarify the impact of federal regulation on local land use control and to more completely articulate how federal regulation detaches a community from its local ecosystem.

This Chapter identifies some, but not all, concrete, scalable strategies that are embedded in the... more This Chapter identifies some, but not all, concrete, scalable strategies that are embedded in the term “sustainability.” It looks across existing broadly-worded definitions of sustainability to extract themes that can provide practical advice, regardless of context, to facilitate a move beyond definitions toward application. The Chapter begins by recognizing that the existing definitions of sustainability are highly generalized, making their application to a specific context difficult. The Chapter continues by exploring how existing definitions can be made more useful to policymakers (public and private) and can help facilitate the implementation of sustainability initiatives to meet the climate change challenge. It explores three themes inherent in highly generalized definitions of sustainability that may provide useful guidance in achieving sustainability in a variety of contexts: i) integration of an ecosystem management approach to public and private governance, ii) implementation and identification of baselines and metrics, and iii) collaboration as a means of overcoming institutional obstacles. The focus is primarily on whether these themes can be translated into understandable principles that bridge the gap between a highly conceptual and, at times, theoretical concept, “sustainability,” and the need for applying it to real world solutions.

One of the many ways in which we attempt to study resource use and conservation is to define natu... more One of the many ways in which we attempt to study resource use and conservation is to define natural resources as “common pool resources.” Yet in a broad sense we can understand nature more generally as a common pool resource with which we maintain a special relationship. This definition incorporates several legal, behavioral, and ecological concepts that seek to capture the intricate and complex place where nature and the governance of nature collide. Once we apply the common pool resource definition to nature, we commit to viewing nature through five distinct and specific lenses that are embedded in the common pool resource framework. This chapter explores these commitments in an effort to establish a foundation for related research on how these common pool resource-specific lenses may influence the management of nature. The chapter begins with a short background on common pool resources and the understanding of them in the legal literature. The chapter then turns to five conceptual commitments we make by labeling nature as a common pool resource. An exploration of the commitments reveals that they have both intended and unintended consequences on the way we view nature. Those consequences, in turn, have both positive and negative implications for the management of nature. Further, regardless of whether the commitments help facilitate positive or negative approaches to nature management, each commitment places limiting and potentially harmful constraints on the broader perspective with which we should view nature. The chapter concludes by raising the question of whether this limited perspective fully considers pertinent characteristics inherent in nature and whether we should think more broadly when defining nature.

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Environmental Law Reporter , Jan 2015

SSRN Electronic Journal, 2000

The Law and Policy of Environmental Federalism, 2000

Although local governance is an experiment in adaptation (and often lauded for being so), climate... more Although local governance is an experiment in adaptation (and often lauded for being so), climate change is distinct from traditional challenges to local governance. Nonetheless, many local governments are directing agencies to utilize existing and traditional local government tools to adapt to climate change. Local governments, for example, are adopting regulatory rules that require consideration of potential climate impacts in public-sector decisions with the goal of improving local adaptive capacity. Throughout these efforts, it is becoming clear that one of the most effective adaptation tools used by local governments is the power to plan communities. Through land use planning, local governments can increase resiliency to major climate shifts and ensure that our communities are equipped with built-in mechanisms to face and mitigate such changes. This essay identifies some of the most innovative planning tools available to local governments that illustrate the potential to plan for community resiliency. The essay begins by identifying some of the severe impacts local governments will experience from climate change. This part recognizes that not all local governments will experience climate change impacts the same, and that climate change adaptation is contextual. Part II provides an overview and inventory of traditional local governance tools, paying particular attention to zoning and nuisance laws. Part III looks more closely at specific structural tools that form the basic foundation for a wide variety of land use planning adaptation approaches and goals. The final part expands on the structural tools and explores specific mechanisms that can help local governments achieve adaptation goals and avoid catastrophic unpreparedness through proper land use planning in the climate change arena.

The locational and spatial circumstances of town and gown present opportunities to advance sustai... more The locational and spatial circumstances of town and gown present opportunities to advance sustainability. This essay examines these areas of opportunity by proposing collaborative frameworks between town and gown. In what we describe as “place-based collaborations,” we identify three areas for productive collaboration by two mutually compatible institutions. Part I of this essay introduces the impacts of the sustainable curriculum and other projects that implement the educational mission of the institution, including the more progressive notion that pedagogical strategies for engaged learning, combined with the introduction of sustainability in the curriculum, may serve as drivers for nested sustainable practices. Part II considers the special relationship that towns may foster in their nested universities by recognizing shared space. Part III illustrates interaction and collaboration possibilities that build on the intellectual capital occurring in educational institutions.

This chapter (included in the book "Greening Local Government" edited by Patty Salkin and Keith H... more This chapter (included in the book "Greening Local Government" edited by Patty Salkin and Keith Hirokawa) considers economic development strategies that capitalize on an emerging socially responsible and environmentally friendly economy.

Local economic development strategies used to attract private sector investment have remained almost the same for the past forty years. The private sector itself, however, is changing. There is a small, but rapidly growing, segment that has re-conceptualized the purpose of a for-profit business. An emerging portion of the private sector generates profit, value and marketability in fostering sustainable business strategies, focusing equally on economic profitability, environmental friendliness and socially responsibility.

In light of this evolution in the private sector, should local governments redesign economic development strategies to leverage the growth in sustainable businesses? The chapter concludes with steps local governments may take to directly incentivize sustainable businesses by increasing the sustainability of the incentives themselves, including a performance-based economic development strategy; and to indirectly encourage the development of sustainable businesses by helping to facilitate a market for their products.

This chapter does not present sustainable economic development strategies as a single option or as a blanket panacea. Rather, by implementing economic development strategies to accommodate and promote sustainable businesses, local governments enhance their sustainability and diversify their tax base. A welcoming business framework is crucial in driving interest and investments in sustainability to the mutual benefit of local governments and the private sector. As local governments look to support sustainable businesses, they will have a positive impact on communities, economic development and the environment in a sustainable and lasting manner.