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  1. page instructions edited Instructions for the Access to Commons Study General Guidelines (a) Sources of Law & Scope o…
    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).
    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.
    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).
    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.

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    12:13 pm
  2. page home edited ... This is a place share and gather, to upload and download, knowledge on the Commons. The Commo…
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    This is a place share and gather, to upload and download, knowledge on the Commons.
    The Common Core of European Private Law Study on Access to Commons
    ...
    of the questionnaire.questionnaire and instructions.
    International University College of Turin course on "Access to Commons"
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    12:11 pm
  3. page Access to Commons edited Access to Commons Course Syllabus Instructors: Filippo Valguarnera and Saki Bailey Description: …
    Access to Commons Course Syllabus
    Instructors: Filippo Valguarnera and Saki Bailey
    Description: This course is aimed at acquainting students with the Comparative Law approach and Social Policy oriented approaches to studying the commons and the Legal Theory behind each.
    Assignments and Evaluation: Students are asked to do weekly readings, research assignments, a multiple choice exam, and completion of a final research report.
    Participation: 20%
    Multiple Choice Exam: 30%
    Final Research Project: 50%
    Research Paper and Presentation: Students will work individually or in groups (depending on class size) on a research project using the methods and theories presented in class to investigate “access to commons” within the context of a specific country’s legal system and sociological reality.
    Classes and Assignments
    1st Class: Joint session
    Introduction to the Study of “Access to Commons” and Context for Studying the Commons
    2nd Class: Filippo
    Comparative Law Functionalism and Fact Based Method
    3rd Class: Filippo
    Comparative Law Sacco and Legal Formants
    4th Class Filippo
    Answering the Questionnaire: Results from reporters and from students
    5th Class:
    Critique of Comparative Law Part I &II: Legal Realism and Ostrom
    6th Class: Saki
    A New Approach: Value Driven Analysis and Application
    7th Class: Saki
    Exam & Discussion of reports
    Final Research Project Assignment for Access to Commons
    Students will work in groups or individually (depending on class number) on a research report that answers one (or several depending on group size) of the assigned questions from the “Access to Commons” questionnaire discussed throughout the course. The reports will be discussed in the last session (July 15th). The final paper is due by email on July 30th.
    Each report should include the following:
    1) Title page indicating your name and country (and all group members if in group)
    2) Part I. Common Core “Outside In” Approach
    Relevant law analysis: Present and analyze the law applicable to solving the factual scenario according to the assigned country’s legal system.
    Meta-legal analysis: Present and analyze social and political institutions within the assigned country relevant to the factual scenario
    3) Part II. Conceptual “Inside Out” Approach
    Commons as a Legal Institution: Locating examples of Commons that correlate to the conceptualization of commons as a legal institution offered in class.
    Analyzing according to selected values.
    Each person/and or group member (depending on class size) is responsible for and update of their project in the form of a short presentation to be discussed with the class.

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    11:58 am
  4. page home edited ... The Commons Sense Forum is the meeting place between politics and scholarship and a place for …
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    The Commons Sense Forum is the meeting place between politics and scholarship and a place for activists and scholars working on and behalf of the commons to develop innovative perspectives and collaborations . The Common Sense platform seeks to be a resource and place to share views from within their specialized fields, and offer opportunities for greater interdisciplinary communication. In the spirit of renewing ‘common sense’ as ‘the philosophy of the non-philosophers’, the Common Sense Forum seeks to develop counter hegemonic narratives challenging the mainstream naturalization of commodification, competition, individualism and private property. It is also the site for the European Charter of the Commons.
    IUC Commons Student Research
    Research related to work of the IUC student body on commons through their Research & Writing Course taught by Saki Bailey.
    Research groups

    1) Food
    2) Energy
    ...
    The Common Core of European Private Law Study on Access to Commons
    The Access to Commons Study is a study led by investigators Saki Bailey,Ugo Mattei & Filippo Valguarnera, which adopts the fact based methodology developed by the Common Core of European Private Law to investigate the legal institutions that could foster and nurture the commons defined in the tradition of the Italian Rodota Commission as those resources "that are functional to the exercise of fundamental rights and to a free development of human beings." The investigators have selected the following resource access areas to investigate: Housing, Food, Water, Nature, Healthcare, Childcare, Elderly Care, Culture, Knowledge, Education and Spaces for Democratic Participation & Free Association. This study is not limited to private law as the protection of commons touches upon both public and administrative law. Here is the link to our most recent version of the questionnaire.
    International University College of Turin course on "Access to Commons"
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    11:53 am
  5. page questionnaire edited Below is the latest version of the questionnaire discussed in Gothenburg July, 2015 at the 22nd An…
    Below is the latest version of the questionnaire discussed in Gothenburg July, 2015 at the 22nd Annual Conference of the Common Core of European Private Law.
    Final Questionnaire: Access to Commons
    1) Housing
    John, Orri, Sekela and Satoshi, together with their families inhabit homes in a development project, suspended due to delayed authorizations. The project was undertaken by a private corporation on public land. The four friends and their families move into the development adding improvements to the premises. After a couple of months, the private corporation discover the four families and attempt to remove them. The families refuse to leave and the private company brings a claim against them.
    2) Health Care
    Emanuela, together with other people from her neighborhood, has organized a volunteer non-profit medical clinic in what appeared to be an abandoned building offering free services to irregular migrants who have no health insurance. Soon after, Syntech,realizing that the market value of the building has increased since they acquired it decides to sell it at a profit. . Syntech would like Emanuela and her volunteers out of the building within a few days in order to sell it and initiates an eviction action. Many people in the area are upset by this news. Emanuela defends.
    3) Food
    Marta, Mattias, and Madison together with their families and neighbors cultivate a communal garden on a vacant plot of land as a food source.. Max Corporation[SB1] , the owner of the plot of land, discovers the four families and tells them to leave. Max Corporation brings a claim against the four families for their removal and the food grown by the families on its land.
    4a) Water: Rural
    Maya, Malik and Mei depend on the water of Flumia, a nearby river. The three villagers together with other villagers in the area, build aqueducts and an irrigation canal from the river to their respective homes and fields. After a few years, a private corporation diverts the water of the Flumia river. Soon after Bob, Steve and Jane realize that water no longer flows to the aqueducts and irrigation canal from the river. Maya, Malik and Mei sue.
    4b) Water 2: Urban
    Jose, Jasmine and Horatio are three friends that inhabit an apartment together[SB2] in a city, Flumiapolis. Following a large increase in the price of water (200% in one year) the three friends fail to pay their water bills. After failing to pay the third bill, the water management cuts off their access to the water supply. Jose, Jasmine and Horatio sue.
    5) Nature
    Hamid, and Heba and their two children used to spend many weekends walking and playing in one of the few green areas at the outskirts of the city where they live. The land belongs to a private owner who lives in a small house near the lake. Corporation C acquires the green area and converts it into a members only country club. Hamid and Heba sue. A local environmental group also sues.
    Variation 1) Assume that Hamid and Heba discover a rare species of frog on the land: how does this support/undermine their claim? The corporation’s defense?
    6) Education/Knowledge
    Laura is an engineering student at a public university. During the fall semester, as part of her course of study, she has been working with 20 classmates supervised by professors to design a new type of hydraulic pump. To work on this project, the students and professors work through an online platform making the project available for one another and for public feedback and potential collaboration. The evolving project drawings are kept on university servers. At the end of the semester, the university announces that tuition fees are being raised. Laura aware of the rise in tuition does not pay it, and this results that the university unenrolls her from the course, however Laura continues to work on the pump project online as a member of the public. After a few weeks, the University administration recognizing the potential commercial value of the project removes the project from public access.. Laura sues in two ways University a) seeking reenrollment in the course b) seeking reinstatement of access and the public’s access to the project.
    Variation 1) Consider whether it would be different if the Professor of the course sues to maintain public access?
    Variation 2) Consider the case that there is no tuition payment necessary to enroll in the University, but rather Laura is no longer able to pay her expenses and therefore must withdraw her attendance?
    7) Culture
    State funding to a non profit local theater is cut in response to austerity measures, as a result the theater will be sold to a private company that wants to operate the theater at a profit. Evgenia, Misha, and Katia are actors and other concerned citizens that protest the sale and they, along with other workers, occupy the theater and continue the theater’s programming for the public through a combination of volunteer work and donations. The municipality brings suit to evict against Evgenia, Misha, Katia, and the other actors.
    [SB1]We have shifted from private owners to corporations with the idea that what is being explored is not private owners v. occupiers but instead corporations that are attempting to commodify and make a profit v. regular people who need access to resources.
    [SB2]We decided to avoid the depiction of the housemates as a communal housing situation to make it more generalizable.

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    11:49 am
  6. page home edited ... This is a place share and gather, to upload and download, knowledge on the Commons. The Commo…
    ...
    This is a place share and gather, to upload and download, knowledge on the Commons.
    The Common Core of European Private Law Study on Access to Commons
    ...
    administrative law. Here is the link to our most recent version of the questionnaire.
    (view changes)
    11:45 am

Thursday, September 18

  1. page The Common Core of European Private Law Study on Access to Commons edited ... Culture, Knowledge, Education and Spaces for Democratic Participation & Free Associati…
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    Culture, Knowledge, Education and Spaces for Democratic Participation & Free Association.
    The
    Education.The project aims
    ...
    United States. We
    We
    are nowstill locating rapporteurs in some of these countries
    If you are interested in joining the study, answering the questionnaire and/or writing a report we invite you to contact Saki Bailey sbailey@iuctorino.it and Filippo Valguarnera filippo.valguarnera@law.gu.se.
    Instructions for the Questionnaire
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    1:03 am

Thursday, September 11

  1. page The Common Core of European Private Law Study on Access to Commons edited ... The project aims to study Commons Legal Institutions in 17 European Countries (Belgium, Croati…
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    The project aims to study Commons Legal Institutions in 17 European Countries (Belgium, Croatia, Denmark, England, Finland, France, Germany, Ireland, Italy, Netherlands, Norway, Serbia, Scotland, Slovenia, Spain, Sweden, and Switzerland) and in the United States. We are now locating rapporteurs in these countries to answer our questionnaire and write a comparative report, which will be published in the Common Core book series. Rapporteurs should either be legal scholars, legal practitioners and/or commons scholars (in other fields) or a practitioner working and/or actively participating in a variety of commons.
    If you are interested in joining the study, answering the questionnaire and/or writing a report we invite you to contact Saki Bailey sbailey@iuctorino.it and Filippo Valguarnera filippo.valguarnera@law.gu.se.
    Instructions for the Questionnaire
    Final Questionnaire 01.09.2014

    Updated Questionnaire 09.06.2014
    Updated Questionnaire 20.02.2014
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    12:31 am

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