May 7, 2010
Hughes on Enabling Investment in Environmental Sustainability
Heather Hughes (American University) has posted Enabling Investment in Environmental Sustainability, Indiana Law Journal, Vol. 85, No. 2 (2010). The abstract:
This Article proposes an “environmental practices money security interest” (EPMSI) that could be added to Uniform Commercial Code (UCC) Article 9 to facilitate transactions that enable good environmental practices. EPMSI rules would grant priority over earlier investors to financers whose extensions of credit enable debtors to invest in improving environmental impact. This work suggests that we should not rely exclusively on government subsidies such as tax credits and subsidized loans to induce investments in improved environmental impact when we could also enact commercial law devices that do so. An EPMSI would add to states’ legislative efforts to address climate change by enabling companies to issue high-priority debt to finance improvements in sustainability. Article 9’s blend of first-in-time priority rules and later-in-time interests that enjoy exceptions to these rules is, essentially, about benefits and drawbacks of new money. As we consider these benefits and drawbacks, two points about Article 9 become important: first, legal scholars overstate the extent to which the purchase-money rules avoid dilution risk by limiting purchase-money collateral to new goods, and, second, scholars overlook the existence of production-money interests in agricultural finance in analyses of Article 9 and interests with later-in-time priority. Ultimately, levels of commitment to mechanisms for private funding of improved environmental sustainability, and of tolerance for risk of dilution to secured creditors’ positions, are for collective determination. Through making a concrete reform proposal, this Article intends to animate, in the context of UCC Article 9, questions about environmental costs and financing of improvements in sustainability.
An environmental law article focusing on the UCC? This will warm the heart of my South Texas colleague and noted UCC apologist Tim Zinnecker. Looks like a very interesting and innovative approach.
Schwemm & Pratt on Disparate Impact Under the Fair Housing Act
Robert G. Schwemm (Kentucky) and Sara K. Pratt (Consultant) have posted Disparate Impact Under the Fair Housing Act: A Proposed Approach, a report commissioned by the National Fair Housing Alliance. The abstract:
The issue of whether the prohibitions of the federal Fair Housing Act (“FHA”) extend to practices that produce a discriminatory effect/impact – as well as those prompted by intentional discrimination – is still not fully resolved. While four decades of litigation have produced a strong consensus among the lower courts that the FHA does include an impact standard, the Supreme Court has never ruled on this issue, and defendants continue to contest it. The result is that courts must still deal with this issue, and, to the extent uncertainties remain, the effort to obtain voluntary compliance with the FHA without the need for expensive and time-consuming litigation is undermined.
As the agency primarily responsible for enforcing and interpreting the FHA, the Department of Housing & Urban Development (“HUD”) has a potentially decisive role to play in resolving this issue, because courts accord substantial deference to HUD’s interpretations of the FHA. With respect to the impact issue, HUD has regularly expressed the view in various contexts that the FHA includes such a standard, but the agency has not yet issued a formal regulation on this matter. HUD should do so now, in order to help clarify this issue for courts, litigants, and the public at large.
This Paper seeks to help facilitate this process by providing a detailed analysis of cases and other sources dealing with the impact issue under the FHA. Part I provides some background on this issue. The basic justification for HUD’s adopting an impact regulation is set forth in Part II. Part III discusses the scope and limits of the approach suggested here. Parts IV and V analyze the respective burdens of proofs for plaintiffs and defendants in impact cases under the FHA, thereby describing the particular circumstances that would be appropriate for impact-based claims. Finally, the two appendices provide, respectively, possible language for such a regulation and examples of impact-producing practices that might violate the FHA.
May 5, 2010
HUD's Report to Congress on the Root Causes of the Foreclosure Crisis
Christopher E. Herbert (Abt Associates, Inc.) & William C. Apgar (Abt Associates, Inc.) have posted Report to Congress on the Root Causes of the Foreclosure Crisis. The report appears to be the official report to Congress by HUD's Office of Policy Development & Research, based on a draft by the two authors as contractors. The abstract:
May 4, 2010
Salazar v. Buono: Supreme Court religious land use case
Catching up from last week (the last week of classes and exam review!) I should post this synopsis of the recent U.S. Supreme Court case Salazar v. Buono. The case revolves around a land-swap between the federal government and the private Veterans of Foreign Wars, who wanted to preserve a donated Latin Cross commemorating World War I servicemembers. Here is the FindLaw abstract:
In an action involving an underlying Establishment Clause challenge to a Latin cross placed on federal land by members of the Veterans of Foreign Wars (VFW) to honor American soldiers who died in World War I, the Ninth Circuit's order precluding the government from transferring the cross and the land on which it stood to the VFW in order to comply with a prior injunction is reversed and the matter remanded where: 1) plaintiff had standing to maintain the instant action because a party that obtains a judgment in its favor acquires a "judicially cognizable" interest in ensuring compliance with that judgment; but 2) the district court erred in enjoining the government from implementing the land-transfer statute on the premise that the relief was necessary to protect plaintiff's rights under the 2002 injunction.
The 2002 injunction thus presented the Government with a dilemma. It could not maintain the cross without violating the injunction, but it could not remove the cross without conveying disrespect for those the cross was seen as honoring. Deeming neither alternative satisfactory, Congress enacted the land-transfer statute. The statute embodied a legislative judgment that this dispute is best resolved through a framework and policy of accommodation. The statute should not have been dismissed as an evasion, for it brought about a change of law and a congressional statement of policy applicable to the case
Katz on the Moral Paradox of Adverse Possession
Larissa M. Katz (Queen's University) has posted The Moral Paradox of Adverse Possession: Sovereignty and Revolution in Property Law, McGill Law Journal, Vol. 55, p. 47 (2010). The Abstract:
On what grounds can we justify the transformation of squatters into owners? To understand the moral significance of adverse possession, we need to begin with the proper analogy. Much of the moral analysis of adverse possession has proceeded on the basis that adverse possessors are land-thieves. I will begin here by explaining why the analogy of adverse possessor to land-thief is misleading. Following that, I will argue that there is a much closer analogy between adverse possession and revolution or, more precisely, a bloodless coup d’ état. The recognition of the adverse possessor’s (private) authority solves the moral problem created by an agenda-less object just as the recognition of the existing government’s (public) authority, whatever its origin, solves the moral problem of a state-less people. The morality of adverse possession, seen this way, does not turn on any particularized evaluation of the squatter’s deserts or her uses of the land. I am thus not proposing that adverse possession is justified in the same way that some argue a conscientious revolutionary is justified in resisting an oppressive or otherwise unjust sovereign. Rather, the morality of adverse possession is found where we might least expect it, in its positivist strategy of ratifying the claims to authority of a squatter without regard to the substantive merits of her agenda or her personal virtue.
Interesting Urbanism in Seoul, South Korea
Attached are some of the more interesting urban conditions I saw during my two-day, self-guided tour of Seoul. From four-story, mixed-use Dunkin Donuts to 60 square foot retail units, Seoul has some real eye-opening urban types. Here's just a sample:
May 3, 2010
Klein on the Dormant Commerce Clause and Water Export
Christine A. Klein (Florida) has posted The Dormant Commerce Clause and Water Export: Toward a New Analytical Paradigm, forthcoming in the Harvard Environmental Law Review, Vol. 35 (2011). The abstract:
Facing water shortages, states struggle with competing impulses, desiring to restrict water exports to other states, while simultaneously importing water from neighboring jurisdictions. In 1982, the Supreme Court weighed in on this issue through its seminal decision, Sporhase v. Nebraska. Determining that groundwater is an article of commerce, the Court held invalid under the dormant commerce clause a provision of a Nebraska statute limiting water export. The issue has again come into the national spotlight, as the Tarrant Regional Water District of Texas challenged Oklahoma legislation limiting water exports, and as Wind River LLC of Nevada contested the denial of its application for a permit to acquire water from Arizona.
This article examines the Dormant Commerce Clause as it applies to water export, identifying factors that have influenced the courts’ legal opinions. It argues that Sporhase asked the wrong question, transplanting a relevant issue from the context of the affirmative Commerce Clause – whether water is an article of commerce – into the context of the Clause’s dormant aspect. Observing that the U.S. Supreme Court has not addressed the issue of water export regulation directly for more than twenty five years, this paper argues that courts should no longer rely upon Sporhase’s water-as-article-of-commerce mantra. Instead, this article suggests a new analytical paradigm, the “water continuum.” More broadly, this article examines evidence from the Court’s Dormant Commerce Clause jurisprudence involving other natural resources – specifically, landfill space – that suggests the Court may be poised to make a radical shift, abandoning the Dormant Commerce Clause entirely.
Hill on the Villains of the Subprime Crisis
Claire A. Hill (Minnesota) has posted Who Were the Villains in the Subprime Crisis, and Why it Matters, forthcoming in Ohio Entrepreneurial Business Law Journal, Vol. 4, p. 323, 2010. The abstract:
Nation's Newest Nuclear Reactors in Jeopardy
From my friends at Southern Alliance for Clean Energy
Atlanta, Ga. – Today, the Southern Alliance for Clean Energy won its lawsuit in Fulton County Superior Court that aimed to protect Georgians from unfair utility costs in connection with the proposed construction of two new nuclear reactors at Plant Vogtle near Waynesboro, Georgia. The Court found that the Georgia Public Service Commission acted illegally in violation of Georgia state law. The Commission’s approval last year during the certification process for the proposed new Vogtle reactors is now in jeopardy.
“We applaud the Judge’s decision and continue to find it incredible that the Georgia Public Service Commission would put $14 billion of ratepayer money at risk on this project without properly documenting the factual basis behind this high risk decision,” said Stephen Smith, executive director of Southern Alliance for Clean Energy. “This ruling spotlights the ongoing incestuous relationship between the Commission and Georgia Power and highlights the regulatory breakdown and blatant lack of consumer protection.”
At today’s hearing, Judge Wendy Shoob heard Southern Alliance for Clean Energy’s (SACE) allegation that the Georgia Public Service Commission (PSC) erred as a matter of law by failing to make findings of fact and conclusions of law as required. Specifically, the group alleged that the PSC did not provide the required written justifications for its findings that would “afford an intelligent review” by the courts. The PSC instead relied on conclusory statements void of any reasoning. The Court ruled in favor of SACE and found that the PSC acted illegally in violation of Georgia state law by failing to make all appropriate findings and to support those findings with a concise and explicit statement of the facts.
“Among many other issues, the PSC needed to explain why they thought this was a prudent technology when this troubled reactor design, Westinghouse’s AP1000, has never even been built anywhere in the world before,” commented Robert Smiles, co-counsel for SACE. “And the Court found that the PSC didn’t properly explain.”
“Like the devastating oil disaster unfolding in the Gulf, decision makers that support questionable practices must be scrutinized in order for the public to be properly protected,” said Michael Carvalho, co-counsel for SACE. “Fortunately, with the Court’s decision that happened today here in Georgia.”
Today’s ruling also raises further concerns over the Obama Administration’s controversial decision in February to award an $8.3 billion taxpayer-financed conditional loan guarantee for Southern Company’s proposed Vogtle project, the first to be offered one in the country. The utility has 90 days to accept and recently requested a 30-day extension on making a decision.