Instructions for the Access to Commons Study

General Guidelines

(a) Sources of Law & Scope of Investigation:
  • The most essential literature (whether foreign or domestic) should be indicated.
  • References to sources (legislation, case law, scholarly writings, etc.) should remain in proportion to the importance of that source within the legal system.
  • Please consider all areas of law relevant to the factual scenario not just the obvious ones (ie property law) but also others, as well as solutions in public law (ie administrative law, social welfare law).
  • Also when considering property law and the rights of ownership please be sensitive to each discrete entitlement in the typical ”bundle of sticks” (Ie right to use, transfer, exclude, appropriate/expropriate).

  • Although the main task is to provide answers about the legal system(s) one represents in the working group, remarks and information involving other systems in a comparison are welcome.

(b)Operative Rules, Descriptive formants, metalegal formants. Please Note not every question, or subquestion, is to be answered as thoroughly as indicated below, please use your descretion. Also, it will often be possible to group together answers on level II or III for different questions (or subquestions).
  1. Level I. Operative Rules. Please indicate:
i. How the case would be solved by case law in the given legal system; whether this is or not the solution given by the other legal formants, i.e., (according to a prima facie interpretation of) legislation, primary and/or delegated; legal doctrine; custom and usage; (For more about this case based approach see see Mattei & Bussani on the Common Core Approach & Sacco on Legal Formants)
ii. whether all these formants are concordant, both from an internal point of view to the case (indicate minority doctrines, including dissenting opinions in leading cases, opposite opinions in scholarly writings, etc.), and from an external historical point of view (whether the various solutions are recent achievements or they are identical in the past);
iii. if appropriate in the legal system, consider the degree to which the solution can be enforced by supreme courts against lower courts, and also the impact of judicial precedent on the matters implied by the solution in the legal system.
  1. Level II. Descriptive Formants. Now evaluate your answer in Level I, and where appropriate, the different reasons for the different approaches and formants -- including, for example:
i. consistency/inconsistency of the solution with specific and general legislative provisions, with general principles (traditional as well as emerging ones), and with constitutional provisions directly affecting the subject
ii. Is the solution considered a historical accident?
iii. Are there any reform proposals?
iv. Whether the solution is dependent on legal rules and/or institutions in other areas of private law than the ones you considered, or even outside of private law altogether, such as procedural institutions (including rules of evidence), administrative and constitutional provisions.
v. In addressing the remedy for the claimants address the maximum and the minimum that the claimants could get from courts (i.e minimal right to use). The emphasis here is always on the access to the resource rather than compensation of damages.
vi. Also address permanent, as well as temporary solutions (for example procedural claims that may delay their removal).

  1. Level III. Metalegal Formants.Indicate the other elements affecting the solution(s) mentioned at Level I, such as:
i. Policy and political considerations
ii. Political, economic and/or social factors and/or institutions equipped to provide an extralegal remedy to the scenario posed.
iii. Social context, values and norms that inform those institutions and effect the way the scenario is handled in your particular jurisdiction’s society.
iv. The structure of legal process (organization of courts, administrative structure, etc.).

Specific Instructions

It is important to highlight that while the plaintiff is sometimes a landowner or public entity that wants to defend his/her rights of ownership, we are actually as or more curious about the legal and extralegal rights/remedies of the defendants. We framed it this way in some questions to stay true to the factual style, where realistically it would not be the occupiers that bring the suit but rather the landowners. In other scenarios the occupiers are the claimants so please pay attention to this shift.

As you can probably already anticipate the metalegal formants analysis and extra legal solutions to these cases will be very important. The aim of the study is not only to locate legal solutions, but to understand how the issue of access to life giving resources is handled and treated in a particular jurisdiction.

Below are some more specific instructions for each case.

Q1: Housing
  • This scenario attempts to capture a combination of a private enterprise and a public agency acting together in order to understand the claims they could make together as well as the distinct claims of each public and private against the claimants.
  • The idea of ”improvements” was included so we could explore a scenario beyond an occupation. Improvements are left ambiguous so that reporters would explore both external and internal improvements, immoveable v. moveable, aesthetic v. structural, etc.
  • Please pay close attention to issue of abandonment-how long, how conspicuous must it be in your jurisdiction.
  • Also pay close attention to the issue of neglect. How much neglect must be identified in order for entrance to be justified? Is there a preference for productive uses of land in your jurisdiction? If so what kind of legal entitlements are protected to make land productive even when you do not hold title.
  • The type of removal was left ambiguous for the purpose of exploring a police removal v. a notice of eviction v. verbal/written announcement by the company or the public agency. How is each dealt with in your jurisdiction?
  • In the Metalegal formants analysis please consider which public and private institutions would offer alternative housing solutions for the four homeless families both temporary as well as permanent solutions and using what criteria of ”affordable.”

Q2: Food
  • Similar to Q1 address the abandoned or unused nature of the land
  • Explore the corporations rights to evict when improvements have been made by others. Do the improvements strengthen the defendants case in this scenario?
  • Explore the corporation’s entitlements v. the defendants entitlements to take ownership (or any stick in the bundle) of the land and improvements.
  • Would it be different if the land was public and it was a municipality bringing suit?
  • In the Metalegal formants analysis please consider which public and private institutions would offer alternatives to the defendants? Would it make a difference if the defendants were below the poverty line and had no other means by which to access food? What institutions in your jurisdiction deal with the issue of access to food? What about if the food was organic? Are there any incentives in your jurisdiction to grow organic food?

Q3: Water
  • Here the emphasis is not on improvements but rather on the construction of infrastructure and rather than compensation we are concerned with their access to water.
  • Would it matter if the friends had build the aqueducts and irrigation canals 10 years ago as opposed to two years ago? What about if it was built by the friend’s ancestors 50 years ago. 100 year ago?
  • Would it make a difference if rather than a river, the friends had constructed a well to which the private corporation that attained right sto the region’s groundwater?
  • In the metalegal formants analysis please consider what institutions could be involved to protect the claimants access to water.
  • The emphasis is on the rural access to water. What kind of public or private institutions are there in your jurisdiction to deal with rural access?

Q4: Water Urban
  • Consider whether proof that the claimants are destitute and have no way to pay their bill would influence the outcome of the case as opposed to claimants who simply refuse to pay out of protest.
    • Are their any subsidies available for poor families, or sliding scale payment programs in your jurisdiction
    • Consider the distinct defenses of both public and pruvate entities.

Q5: Nature
  • Consider whether the size and other characteristics of the green area would effect the outcome.
  • Consider in Variation 1 if the rare frog species was deemed to have educational value how this might alter the outcome. Consider if Steve and Jane were biologists how this might alter their access.

Q6: Education/Knowledge
  • There are facts included to make it ambiguous as to whether the University owns the work products of Laura and her classmates and professors have given consent to take the work products public.
  • In the Variation please pay attention to the institutions and program available in your jurisdiction to which students are entitled for supporting their studies.

Q7: Care
  • Non profit is added here to make it clear that this is no profit involved so this is not for a commercial purpose.
  • Facts are added to show that there is a need for these services because the state has shut down programs that previously offered these services.
  • Irregular migrants are added here because this is a group that likely would not have access to healthcare and legal aid in European countries. Consider however other groups that might be in need of such services.

Q8: Culture
  • Consider whether it would make a difference if this was a historic theater of cultural relevance both in that the building is a historical building and history of offering public performances.
  • In considering what kind of defenses are available to the defendants include both long term and short term defenses in the meta legal formants. Legal strategies that might delay their eviction in addition to longer term solutions.