J. Peter Byrne, Georgetown, has posted Hallowed Ground: The Gettysburg Battlefield in Historic Preservation Law 22 Tul. Envtl. L.J. 203 (2009) on SSRN. Here is the abstract:
This article seeks to deepen legal analysis of historic preservation law by analyzing how contemporary presuppositions and legal tools shape changing preservation approaches. It is organized around legal disputes concerning the Gettysburg battlefield, a site of great national significance, which has been preserved in different forms for nearly 150 years. The paper describes the history of preservation at Gettysburg. It argues that the Supreme Court’s constitutional approval of federal acquisition of battlefield land in 1896 reflected contemporary conservative nationalism. It also analyzes how legal tools for preservation of land surrounding the battlefield have evolved from simple ownership to coordinated regulation and contract, breaking down the traditional stark division between protected and commercial land. Finally, the article examines how the National Historic Preservation Act governs government choices about what to preserve and how to interpret it. Because preservation of a site associated with a significant event inevitably will reflect contemporary interpretative biases, the law should mandate inclusive processes for making preservation choices and encourage the presentation of multiple perspectives.
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