Europeanization as Discontinuous Adjustment: A Düsseldorf Court's Impact on Land Development Practice

Within the Single European Market, rules govern the procurement of public works contracts and concessions. While recent judgments by the European Court of Justice indicate that these rules could have a considerable impact on future land development planning, there has not yet been widespread Europeanization of local land development practice. In Germany, however, the Oberlandesgericht in Düsseldorf (OLGD) has ruled that European public procurement rules must be followed in those cases in which the land sold forms part of an urban development plan. This has had a significant impact on German practice, with the number of official publications of tenders for land sales by German local authorities increasing from 3 in 2006 to 100 in 2008. This paper analyses the arguments that have been put forward by the OLGD and their impact on practice. We also reflect on how Europeanization as the application of European legislation in urban planning contexts not only constitutes a form of supranational intervention in local practices, but also depends on local agencies drawing on European-level powers in order to have an effect.     

The Exception That Defines the Rule: Marshall's Marbury Strategy and the Development of Supreme Court Doctrine

Analyzing the development of the European Court of Justice (ECJ), Laurence Helfer and Anne-Marie Slaughter argue that in the early years of the court, ECJ justices "borrowed a leaf from Chief Justice John Marshall's book, edging principles forward while deciding for those most likely to oppose them in practice."¹ The most famous example of this paradox in Marshall's jurisprudence can be found, of course, in his seminal opinion in Marbury v. Madison. While asserting the right of the judicial branch to nullify legislation it deemed unconstitutional, Marshall used an implausible construction of the jurisdictional powers given to the Supreme Court in Article III of the Constitution² to deny the petitioner the remedy to which Marshall claimed he was otherwise entitled. While Marbury is generally portrayed as the fountainhead of judicial review in the United States (and therefore in liberal democracies in general), as Mark Graber points out, the decision was in fact a "strategic judicial retreat…in the face of threats by executive…power."³ In order to assert the power of judicial review, in other words, Marshall had to refrain from applying it in the case in question.     

Freedom of Establishment Versus Retail Planning: The European Case

Studies on retail planning in European Union (EU) Member States tend to be nationally oriented and, at best, compare national retail planning systems. They also appear to be based on an implicit assumption that retail planning should not be designed to fit the Single European Market (SEM). This paper analyses a series of judgments by the European Court of Justice and activities undertaken by the European Commission and concludes that this assumption is misguided and incorrect. The bottom line is that retail planning can interfere with freedom of establishment—one of the fundamental EU freedoms laid down in the Treaty of Rome—by limiting the realization of new shopping outlets and by redirecting retail to preselected locations. Such restrictions may be allowable if the Member State in question is able to demonstrate that they are non-discriminatory, appropriate and proportional on the basis of the interpretations of these fundamental principles in European Law. There is a European Retail Action Plan which aims to organize national retail planning systems in such a way that they are compatible with the principles of the SEM.     

Regional and transnational spatial planning1: problems today,perspectives for the future

This introductory contribution presents some results of the EURBANET project, dealing with European urban networks in the framework of the INTERREG IIC programme of the North‐western Metropolitan Area (NWMA). This project was conducted between 2000 and 2001 by researchers of Delft University of Technology, the University of Glasgow, the University of Dortmund, the Catholic University of Leuven and the University of Nijmegen. The central objective of the EURBANET project was to explore the role of polynucleated urban regions in the reinforcement of the competitive strength and quality of life in the NWMA, as a contribution to transnational spatial planning in the NWMA. Four polynuclear urban regions are involved: Randstad Holland, the Flemish Diamond, the RheinRuhr Area and Central Scotland (Glasgow‐Edinburgh region). One of the conclusions is that it is necessary to move between scales: from the European Union to national spatial policies (and vice versa), between national policies and regional spatial policies and between regional and urban spatial policies. At each scale, specific demands for spatial planning policies in polynuclear urban regions are becoming increasingly relevant. This is a challenge for spatial policies and policy domains like infrastructure policy, transport policy, housing policy, economic and environmental policy. We present an analysis of how polycentricity has become central to recent discussions on European and north‐west European spatial and economic planning. We launch a spatial network approach to integrate spatial policies. These wide perspectives contrast heavily with the current less satisfactory practice of spatial planning on the level of urban networks and transnational governance.     

The Europeanization of Development Planning in Valencia

Europeanization involves the diffusion of European institutions. In Valencia, the system of land development prompted many foreign property owners to appeal to European institutions. The Petitions Committee of the European Parliament took up their case and requested intervention by the European Commission. The European public procurement proceedings provided the strongest foothold for action in Europe and the European Commission instituted infringement proceedings on the selection of private urbanizing agents who are placed in charge of the land readjustment and the servicing and financial arrangements for comprehensive development zones. The European Court of Justice dismissed the action as the Commission did not provide sufficient evidence to show that these relationships were not a service concession, as Spain maintained. This case shows that even in cases that flout European law, it is still European law that decides whether they are exempt and, consequently, that the deliberate construction of practices to keep a case outside the scope of European law may qualify as Europeanization.     

Unlikely Abolitionist: William Cushing and the Struggle Against Slavery

One of the striking differences between the federal Union established under the Constitution and the Confederation of States established under the Articles of Confederation is the creation under Article III of a judicial power of the United States and of a Supreme Court to exercise that power. Acting pursuant to its power to determine the structure of that Court, Congress determined that the Court should consist of one Chief Justice and five Associate Justices. The six lawyers President Washington named to the Court ¹ were leading members of the bar, yet none achieved lasting distinction by reason of his service on the Court. Chief Justice Jay, for example, is best remembered for the treaty with England which bears his name; and when he resigned in 1795 following his election as Governor of New York, local papers referred to his new office as "a promotion." ²     

Land Use Planning Tools and Institutional Change in Germany: Recent Developments in Local and Regional Planning

This paper seeks to understand how recent social, economic and institutional developments have affected the land use planning tools and instruments that German planners have at their disposal. Although traditional planning practice was focused on the equitable distribution of services and infrastructure and managing growth within a highly structured plan approval process, planning tools at both the local and regional level have become increasingly concerned with enhancing local or regional competitiveness, primarily through the inclusion of a greater number of actors in formulating land use decisions. I argue, however, that despite these changes, the overall institutional framework, which revolves around legal and procedural concerns such as the plan approval process or the granting of building permission, has generally remained unaffected, and a significant gap exists, particularly at the regional level, between the strategic goals of regional governance and actual land use planning tools.     

Measuring the performance of planning: the conformance of Italian landscape planning practices with the European Landscape Convention

The assessment of the performance of planning is debated. The evaluation of the conformance of a given national planning system with a set of principles is similarly received with critical and favourable remarks. A relevant case study consists of the conformance of European landscape planning practice with the principles of the European Landscape Convention (ELC). Italy incorporated in 2004 the principles of the ELC with the Code on Cultural Assets and Landscape (CL), which opened the way for new laws, tools, observatories and atlases. The aim of this article is to demonstrate the usefulness of an assessment exercise concerning the conformance with the ELC of planning practice in Italy. We scrutinize planning systems and tools established by peripheral administrations, according to a qualitative and comparative framework. We refine our analysis by focusing on 10 most recent cases and identifying critical issues in current landscape planning practice. The results are promising and show that landscape planning in Italy is increasingly in line with the ELC.     

Social sustainability tool for assessing land use planning processes

The aim of this paper was to develop a social sustainability tool to clarify what social sustainability means in land use planning processes. The tool was developed through a robust research process covering a large amount of scientific literature and built environment sustainability assessment tools. To assess how the developed tool works in practice, we used it as a coding system for the assessment of social sustainability in a case study from Finland. The case study includes the master planning process of a medium-sized city and the legal framework guiding it. The theoretical contribution of the paper lies in creating a holistic tool for the assessment of social sustainability in planning processes. This study also provides a strong practical contribution, as it goes beyond theoretical definitions to the pragmatic level by providing exemplary measures to be used in designing and implementing processes. Therefore, this paper is a valuable source for those stakeholders (for example planners, developers and policymakers), who struggle with the issue of the successful implementation of social sustainability practices, and it will help them to benchmark their processes against the themes found in the tool.     

Strategic Planning as Region Building on the Eastern Periphery of the EU

This article describes how region-building is performed by four strategic planning initiatives in north-eastern Slovakia, highlighting a tension between balanced and concentrated development perspectives in Slovak regional policy. The plans are read as records of an institutionalizing process, the product of which is the creation of a lasting collaborative relationship between actors. If strategic planning could fulfil a mobilizing and integrating function in eastern Slovakia, it would constitute a significant contribution to the successful negotiation of social and economic transformations associated with post-communist structural change and European Union (EU) accession. Region-building is complicated by an over-emphasis on endogenous perspectives among local actors, hindering vertical integration, and an indeterminacy about the scale at which such an integration is best performed.     

Law and the historical geography of the Galilee: Israel's litigatory advantages during the special operation of land settlement

This article contributes to a re-evaluation of the role of law in historical geography. It focuses on Israeli officials' application of the complex legal process of ‘settlement of title’ to land in the all-Arab central Galilee during the 1950s and 1960s, which was aimed at transforming Jewish–Arab socio-spatial power relations in the region. Expanding Israeli conceptions of state land and the government's focus on contesting land claims of Arab citizens transformed the process into an overwhelmingly litigatory one, triggering thousands of legal disputes between state agencies and Galilee Arabs. Drawing on Galanter's work on repeat player advantage and Kritzer's work on government litigants, this article characterizes the state as a ‘government compound repeat player’, enjoying advantages that not only won cases in the Haifa District Court but that also had direct impact on the subsequent geographical transformation of the region. On a more general level, this article argues that law has played a greater role in shaping historical geographies than the literature might suggest and encourages additional work on the subject.     

Commerce and the European City Center: Modernization,Regeneration and Management

The Second European Congress on Commerce and City was held in Lille between 15 and 17 November 2000. It was organized by the French Ministry of Economy, Finance and Industry under the umbrella of the French Presidency of the European Union. Its major aim was to discuss how, and under what conditions, the evolution of commerce in Europe can contribute to the renaissance of European cities. The congress included plenary sessions, the presentation of two major studies on commerce and urban regeneration in Europe, three guided study tours, and the discussion of 25 European best practices aggregated into four thematic workshops: city strategies, enterprise strategies, public-private cooperation, and urban planning tools and programmes. This paper identifies those best practices, highlights some of the discussed issues, and presents a synthesis of the congress's declaration.     

De la carte au territoire: Portée et usages des outils cartographiques au sein de la Première Nation des Pekuakamiulnuatsh Entrevue avec Michel Nepton,membre de la Première Nation des Pekuakamiulnuatsh et conseiller en aménagement du territoire

From map to territory: Scope and uses of mapping tools within the Pekuakamiulnuatsh First Nation Interview with Michel Nepton, member of the Pekuakamiulnuatsh First Nation and land use and planning advisor While the mapping of Indigenous territories has long been at the heart of land-grabbing strategies orchestrated by the colonial powers, these tools are now largely mobilized by Indigenous communities through the processes of claiming, negotiation, and affirmation. The specific context of land claiming in Canada has also contributed in a significant way to the increasing use of these tools by communities seeking to demonstrate their historical occupation of land. In any case, the translation of Indigenous knowledge into exogenous geographical language remains subject to criticism and caution, particularly by the tenants of critical mapping. In order to shed new light on these issues, the following interview was conducted with the land use and planning advisor Michel Nepton, working in the Pekuakamiulnuatsh Takuhikan Land rights and protection board (Council of the Pekuakamiulnuatsh First Nation, Mashteuiatsh). Bringing forward his experience and use of mapping tools within his professional practice, his thoughts reveal the role and scope they have in the specific context of his community.     

Importing and exporting spatial needs: A Dutch approach1

The increasing demand for space determines much of the approach to spatial planning in countries with a high population density like the Netherlands. In the next three decades more land will be needed for housing, work, traffic, leisure, nature and water. There is only one sector that will yield land: agriculture. The Dutch Minister of Spatial Planning has presented six intervention strategies to cope with the increasing demand for space: (1) priority setting; (2) export spatial needs; (3) reduce the need for space in accordance with policy; (4) intensify land use; (5) combine spatial needs; (6) transform spatial structures and buildings. Spatial planning in the Netherlands is becoming more and more geared to strategies 4, 5 and 6, which take the need for land as given. This paper seeks to explain that the first three strategies, and strategy 2 in particular, are also crucial for a country like the Netherlands, even though the policies associated with them would not generally be labelled spatial. For the spatial planner, however, the export of spatial needs is relevant as this determines the outcome of spatial planning to a large extent. This shall be illustrated by reporting on international residential migration, the use of leisure homes and second homes, international business migration and the restructuring of the agricultural sector. The Netherlands is not only exporting spatial needs, but also in the same time even imports needs at a larger scale, which puts spatial planning on a larger pressure. In the past the lack of space was solved by relinquishing land that was originally earmarked for water or nature. But the need for space for water and nature has increased recently and will continue to do so in the coming decades. This makes intervention strategy 2 even more relevant for the future. Spatial planners need to widen their horizons and include the import and export of spatial needs in their analyses.     

Explaining Supreme Court Policymaking in Civil Rights: The Influence of the Solicitor General, 1953–2002

What factors explain Supreme Court policymaking in civil rights cases? Despite the importance of this question of law and policy, few empirical studies have explored the problem on the area of racial and ethnic discrimination. This study seeks to fill this gap by assessing the importance of the solicitor general, the federal government's representative before the Supreme Court, as a litigant and in the filings of amicus curiae briefs. The findings confirm that the solicitor general's presence in civil rights cases does matter when explaining whether the Supreme Court reaches a liberal or conservative outcome. This research demonstrates the significance of executive‐judicial interaction in explaining Supreme Court policymaking in civil rights cases.     

Beginning to Write Separately: The Origins and Development of Concurring Judicial Opinions

While political scientists and legal academics have both evinced a “fascination with disagreement on courts,” ¹ this scholarly concentration on conflict rather than consensus has tended to focus on dissent and dissenting opinions. As far as we can tell, there is no authoritative history of concurring opinions in the U.S. Supreme Court. This article is a first effort to correct that oversight by examining developments and change in concurring behavior from the founding through the White Court (1921). This period covers the emergence of an institutionally independent national judicial branch and ends before the start of the modern, policy‐making Court era, which we argue begins with the Taft Court and the creation of a fully discretionary docket.     

The Geography of the Anthropocene in New Zealand: Differential River Catchment Response to Human Impact

New Zealand provides a useful environment to test the notion that the Anthropocene is a new geological epoch. There are two well‐dated anthropogenic impact ‘events’: Polynesian settlement c. AD 1280, and European colonisation c. AD 1800. Little attention, however, has been given to regional catchment response to these, although it has been assumed that both Polynesian and European farming and land use management practices significantly increased erosion rates across most of New Zealand. This paper addresses the nature and timing of human impacts on river systems using meta‐analysis of a recently compiled nationwide database of radiocarbon‐dated fluvial deposits. This shows highly variable human impacts on erosion and sedimentation in river systems, which are often difficult to separate from naturally driven river activity. Catchment‐scale data with high resolution dating control record clearer evidence of human disturbance. In Northland, anthropogenic alluviation is recorded from c. AD 1300 linked to early Polynesian settlement, enhanced further in the late 19th and 20th centuries by European land clearance, when sedimentation rates exceeded 25 mm year^?1. This study demonstrates significant geographical variability in the timing of human impact on river dynamics in New Zealand, despite two synchronous phases of human settlement, and highlights the difficulty of formally designating a simple and single ‘Anthropocene Epoch/Age’.     

European Union Competition Policy and the European Territorial Cohesion Agenda: An Impossible Reconciliation? State Aid Rules and Public Service Liberalization through the European Spatial Planning Lens

The territorial and spatial planning impacts of European Union (EU) economic and competition policies have remained under-researched in the field of European spatial planning, in contrast to other EU policy fields. This briefing explores how two elements of the EU competition policy, the regulation of “state aid” and the liberalization of “services of general interest (SGI)”, have significant implications for the pursuit of the objective of territorial cohesion through spatial planning and territorial development policies at different scales. The paper first reviews the development of the concept of territorial cohesion in the EU discourse and policy agenda since the mid-1990s, as well as the contribution of public services (Services of General Interest, or SGI in EU jargon) to it. It, then, reviews how the EU state aid rules and liberalization policies affect the state's ability to intervene (i) in support of sub-national territories which are lagging behind or suffering decline, and (ii) in the provision of public services across the national territory, specifically in peripheral regions or areas where the provision is not catered for by the market. The conclusion of the paper outlines the additional challenges to the pursuit of territorial cohesion in the EU posed by the post-2008 economic crisis and suggests avenues for future research.     

High Court Review 2001: Politics,Legalism and the Gleeson Court

This article provides a general political review of recent High Court decisions that have significant implications for Australian constitutionalism. In examining the Court's judgments on issues such as cross-vesting schemes, immigration and Native Title, it seeks to articulate major themes in the Court's jurisprudence and delineate the important and changing role of the High Court in Australian politics. The article is the first in what this journal intends to be an annual review of the High Court from a political-science perspective.     

'Euroscepticism', Political Agendas and Spatial Planning: British National and Regional Planning Policy in Uncertain Times

Over the last 10 years, European Union interest in planning has increased significantly. Although land use planning remains a function of each member state, the legal obligations imposed by the EU in the fields of environmental law, structural funds, the Common Agricultural Policy, and Trans-European Transport Networks, have all impacted upon the context of the operation of the British planning process. Many of the EU initiatives have had to be transposed into domestic legislation, while others form an important-if oft-times uncertain-framework for British policy-makers. This paper examines the relationship between the European Union's policies and initiatives as they have potentially impacted upon the British planning system and the contents of Britain's national and regional planning policy guidance to local planning authorities in the assessment period 1988-1997. But the Conservative governments adopted a 'Eurosceptic' approach to their relations with Europe and, as demonstrated within this paper, also towards spatial planning issues that caused uncertainty in practice. The research indicates that although the EU has impacted upon British planning, particularly at the local level of government, this has not been reflected at the national and regional levels in planning policy documentation, mainly because of the 'Eurosceptic' attitude of the government. Policy-makers at both the national and regional levels in England, Scotland and Wales are now recognizing the need, however, to keep apace with changes occurring simultaneously with regard to enhanced European integration, and the approach of the Blair government since 1997 has re-focused the relationship between the EU and UK over spatial planning.