Saturday, September 25, 2010

Kotkin: Why Housing Will Come Back

On his New Geography blog for Forbes, Joel Kotkin has an essay on why he thinks there will be a resurgence in the housing market starting later this decade: Why Housing Will Come Back.  He begins with a historical observation:

Few icons of the American way of life have suffered more in recent years than  homeownership. Since the bursting of the housing bubble, there has been a steady drumbeat from the factories of futurist punditry that the notion of owning a home will, and, more importantly, should become out of reach for most Americans.

Before jumping on this bandwagon, perhaps we would do well to understand the role that homeownership and the diffusion of property plays in a democracy. From Madison and Jefferson through Lincoln’s Homestead Act, the most enduring and radical notion of American political economy has been the diffusion of property.

Kotkin then notes that in recent years, and especially in light of the mortgage crisis, the single-family homeownership ideal has been criticized from both the right (government overpromotion) and the left (sprawl, new urbanism, environmentalism).  His response:

Yet for all the problems facing the housing market, homeownership–not exclusively single-family houses–is not likely to fade dramatically for the foreseeable future. The most compelling reason has to do with continued public preference for single-family homes, suburbs and the notion of owning a “piece” of the American dream.   This is why that four out of every five homes built in America over the past few decades, notes urban historian Witold Rybczynski, have less to do with government policy than “with buyers’ preferences, that is, What People Want.

Kotkin goes on to explain several reasons why he believes housing will come back, after adjusting to the market correction imposed by the economic recession.  Why I find most interesting is that his prediction is based less on economics or law than on demographics:

As boomers age, the two big groups that will drive housing will be the young Millenial generation born after 1983 as well as immigrants and their offspring. Sixty million strong, the millenials are just now entering their late 20s. They are just beginning to start hunting for houses and places to establish roots. Generational chroniclers  Morley Winograd and Mike Hais, describe millenials in their surveys as family-oriented young people who value homeownership even more than their boomer parents. They also are somewhat more likely to choose suburbia as their “ideal place to live” than the previous generation.

These tendencies are even more marked among immigrants and their children. Already a majority of immigrants live in suburbia, up from 40% in the 1970s. They are attracted in many cases by both jobs and the opportunity to buy a single-family home. For an immigrant from Mumbai, Hong Kong or Mexico City, the “American dream” is rarely living in high density surrounded by concret

An interesting take.  For more writings on urban theory from the center-right perspective (e.g., Why we Have to Learn to Love the Subdivision--Again) see Kotkin's New Geography website. 

Matt Festa

September 25, 2010 in Density, Development, Environmentalism, Housing, Mortgage Crisis, New Urbanism, Planning, Real Estate Transactions, Sprawl, Suburbs, Urbanism | Permalink | Comments (0) | TrackBack (0)

Friday, September 24, 2010

Adler on Revisiting the Fundamental Principles of the Clean Water Act

Robert W. Adler (Utah) has posted Resilience, Restoration, and Sustainability: Revisiting the Fundamental Principles of the Clean Water Act, Washington U. Journal of Law and Policy, Vol. 32, p. 139 (2010).  The abstract:

The last truly significant revisions to federal water pollution legislation (the “Clean Water Act” or “CWA”) occurred in 1972. The CWA has been among the nation’s more successful environmental statutes, especially with respect to control of point source discharges of pollutants into surface waters. However, when viewed from the broader statutory objective to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” the statutory tools are either too dull to accomplish the task, or in some cases the appropriate tools have yet to be forged at all. In this Article, I argue that the focus of the CWA should be modified or expanded in four ways. First, we need to make better use of current concepts of ecosystem resilience rather than the notion of ecosystem “stability” that prevailed when the 1972 law was passed. Second, we need to develop the statutory and other tools necessary to press forward with the restoration goal of the statute. Third, we need to pursue the long-recognized statutory gap in redressing non-industrial forms of water pollution from a much wider range of sources than traditional industrial and municipal point source discharges. Finally, we need to revise our definitions of “waters” and “waters of the United States” to focus on the sustainability of aquatic ecosystems for human and natural uses, rather than on the antiquated concept of navigability.

Matt Festa

September 24, 2010 in Environmental Law, Environmentalism, Federal Government, Scholarship, Sustainability, Water, Wetlands | Permalink | Comments (0) | TrackBack (0)

Alexandre on Navigating the Topography of Inequality Post-Disaster

Michele Alexandre (Mississippi) has posted Navigating the Topography of Inequality Post-Disaster: A Proposal for Remedying Past Geographic Segregation During Rebuilding, a chapter from the book Law and Recovery from Disaster: Hurricane Katrina, edited by Robin Paul Malloy for the Ashgate series on Law, Property, and Society (2009).  The abstract:

In this chapter, I argue that New Orleans’ history of geographic segregation mandates that the burden of restoring the city be shared by all United States citizens. One useful method for implementing this nationwide burden sharing would be to levy a uniform one to two percent tax based on individuals’ income. This uniform tax would be minimal and would be consistent with other taxes raised for the public good, such as the security taxes levied on air travel post September 11, 2001. The funds accumulated from levying the taxes can be used to address some of the financial needs of individuals in disaster stricken areas. This proposal is consistent with the theory of burden-sharing based on ability to pay, which is sometimes used to allocate proportional responsibility among diverse and differently situated individuals. In the international realm, this principle has sometimes been applied in the face of a need “for nations to share in joint and sometimes costly projects for the common good.” (See Daniel A. Farber, Disaster Law and Inequality, 25 Law & Ineq. 297, 320 (2007) (stating: “Social disadvantage can kill in very obvious ways during a disaster” and noting President Bush’s statement that “the poverty of so many in the region ‘has roots in a history of racial discrimination’”).

Consistent with this practice, the burden-sharing based on ability to pay “rests on equal sacrifice notions and implies either proportional or progressive tax schedules.” (Id. at 313–314 n.14). Comprehensive disaster insurance is one of the solutions that have been advanced to alleviate financial needs in times of disaster. This solution, however, because it shifts the burden of remedying the financial woes caused by disaster onto the disaster stricken individuals, does not fully achieve equity. In shifting the burden of providing remedies to the would-be-harmed individuals, the comprehensive disaster insurance proposal does not account for the role that residential and occupational segregation have had on individuals’ choice of geographic residence. This burden should be shared as a way of holding the other cities and states accountable for their silent ratification of these types of geographic segregation. Furthermore, this model of burden-sharing should not be limited to the restoration of New Orleans. It should be implemented in all instances where we can demonstrate that certain groups have historically been pushed out of geographically safe and desirable regions of the United States, being forced to live in precarious and dangerous areas. This chapter is divided into three parts. In the first, I investigate the ways in which cities have been geographically segregated and continue to be so today through various land-use related municipal decisions. In the second, I consider how geographical segregation has caused disproportionate harm in New Orleans. In the third, I argue that remedying New Orleans’ geographical segregation should be one of the primordial goals of the rebuilding efforts and I enunciate a standard that can be used to determine whether rectifying geographical segregation should play a role in disaster prevention as well as in post-disaster rebuilding plans.

Matt Festa

September 24, 2010 in Federal Government, History, Planning, Politics, Property, Race, Redevelopment, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, September 23, 2010

DOJ Report on RLUIPA at 10 Years

The Department of Justice this week issued a report on its decade of enforcement actions since the enactment of the Religious Land Use and Institutionalized Persons Act (RLUIPA).  From the press release:

RLUIPA protects places of worship and other religious uses of property from discrimination and unreasonably burdensome regulation in zoning and landmarking law, and also protects the religious freedom of persons confined to institutions such as prisons, mental health facilities and state-run nursing homes.   RLUIPA was enacted by both houses of Congress unanimously and signed into law on Sept. 22, 2000.   The law was a response to concerns that places of worship, particularly those of religious and ethnic minorities, were often discriminated against in zoning matters.


The report illustrates that in the 10 years since its enactment, RLUIPA has aided thousands of individuals and institutions from a wide range of faith traditions through Department of Justice lawsuits, private lawsuits, and successful efforts to achieve voluntary compliance.

More information can be found in the full Report on the Tenth Anniversary of the Religious Land Use and Institutionalized Persons Act.

Matt Festa

September 23, 2010 in Constitutional Law, Federal Government, First Amendment, Historic Preservation, RLUIPA, Zoning | Permalink | Comments (0) | TrackBack (0)

Cole & Ostrom on Property Systems and Rights in Natural Resources

Daniel H. Cole (Indiana-Indianapolis, Law) and Elinor Ostrom (Indiana-Bloomington, Political Science) have posted The Variety of Property Systems and Rights in Natural Resources--An Introduction.  The abstract:

Property theory has not kept pace with the growth of empirical and historical information on property systems. This paper, prepared for a Lincoln Institute conference on "The Evolution of Property Systems and Rights Related to Land and Natural Resources": (a) introduces conventional theories of property rights in natural resources (based largely on Hardin 1968 and Demsetz 1967); (b) addresses issues in the construction and meaning of property rights and systems; (c) describes the findings of social scientists from decades of field and experimental research about the structure and performance of existing property systems; and (d) calls on property scholars to move beyond "naive" and simplistic theories of property rights in light of the wealth of empirical evidence demonstrating the variety of successful property regimes in use.

Matt Festa

September 23, 2010 in Environmental Law, Property Rights, Property Theory, Scholarship, Sustainability | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 22, 2010

EJ Conference at FAMU

Thanks to John Bonine for the heads' up about this:

Florida A&M University (FAMU) College of Law and the FAMU Center for Environmental Equity and Justice invite you to attend "New Directions in Environmental Justice, An Environmental Law and Justice Symposium," Friday, November 12, 2010, 8:30 a.m. on the law school campus, 201 Beggs Avenue, Orlando, Florida 32801. The symposium will feature an overview of the latest international, national, state, regional and local developments in Environmental Justice. Continuing Legal Education credits (CLE) are available.


Opening Keynote:  Dr. Beverly Wright, Founder and Director of Deep South Center for Environmental Justice in New Orleans

Luncheon Keynote: Mr. Quentin Pair, Esq., U.S. Department of Justice

Closing Keynote: Prof. Maxine Burkett, University of Hawaii School of Law

The cost is $50.00 for the General Public; $35.00 for FAMU Alumni and Environmental Law Attorneys.  To learn more, visit Or, contact Professor Randall Abate, event coordinator, at, or at 407-254-4044.

Jamie Baker Roskie

September 22, 2010 in Conferences, Environmental Justice | Permalink | Comments (0) | TrackBack (0)

Lovett on Progressive Property in Action

John A. Lovett (Loyola--New Orleans) has posted Progressive Property in Action: The Land Reform (Scotland) Act 2003.  The abstract:  

This article responds to a material deficit at the heart of American property law scholarship. For years, property scholars have debated whether the right to exclude deserves to be the centerpiece of our property regime in the United States. This article seeks to transform that debate by introducing to an American audience a remarkable piece of property legislation recently enacted in Scotland. Part I of the Land Reform (Scotland) Act 2003 creates a right of responsible, non-motorized access across almost all land and in-land water in Scotland, private as well as publicly owned, for purposes of recreation, education and passage. This legislation thus reverses the traditionally robust, ex ante presumption in favor of a landowner’s right to exclude and replaces it with an equally robust, ex ante presumption in favor of the public’s right of responsible access. By introducing this new property right in Scotland and creating an entire property regime to contextualize the right, a regime that is much bolder, in fact, than has been established in England and Wales under the better known Countryside and Rights of Way Act 2000, Scotland has provided property scholars with a case study in property law institutional design that is unique in modern legal systems. This article will demonstrate how the LRSA reveals that it is possible for a property regime to promote the ends of human flourishing without necessarily sacrificing all of the efficiency gains and coordination benefits that flow from the common law’s traditional preference for rules of exclusion.
Matt Festa

September 22, 2010 in Comparative Land Use, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 21, 2010

Batchis on Euclid and Urban Sprawl

Wayne Batchis has published Enabling urban sprawl: revisiting the Supreme Court's seminal zoning decision Euclis v. Ambler in the 21st century in the Virginia Journal of Social Policy & the Law.  Here's the abstract:

Today, many urbanists look back at our built environment with bemusement. The outcome of over fifty years of post-war suburbanization has fundamentally reshaped America's manmade landscape. From coast to coast, amorphous urban sprawl envelops America as far as the eye can see - and scholars have just begun to struggle to understand its causes and assess its impact. In this article I examine the phenomenon of urban sprawl and its relationship to exclusionary zoning. I argue that the Supreme Court in 1926 played a key role in enabling sprawl though its permissive zoning jurisprudence in Euclid v. Ambler. Had the Court scrutinized America's early zoning laws with greater rigor, these laws could have been deemed constitutionally suspect - effectively stopping sprawl in its tracks. I conclude by exploring four significant flaws of the Euclid decision in light of the modern epidemic of sprawl.

 Jamie Baker Roskie

September 21, 2010 in Scholarship, Sprawl, Zoning | Permalink | Comments (1) | TrackBack (0)

A Return of Neighborhood Schools?

One of the biggest losers in the spread of sprawl has been the good ole' neighborhood school.  If you're like me, you might have walked or biked to elementary school with other kids from the neighborhood. 

Unfortunately, the era of crossing guards and bike racks has suffered as school systems moved toward more remote school locations that were not legally and/or safely accessible by walking or biking.

A major driver in this change was the adoption of minimum school site acreage laws by numerous states.  Under these laws, a new school site had to be composed of a minimum number of acres in order to be built.   Oftentimes, this "minimum" was so high that smaller school sites embedded in neighborhoods were not legal as a matter of right.

Awhile back, I wrote a law review article that discussed this issue and the damaging effects it has had on student health and academic performance (among other things).  Fortunately, the trend is now away from minimum site acreage requirements (though, here in Alabama, the Department of Education refuses to get on-board with this and remains stuck in the past on this important issue).

One example is in South Carolina where the abandonment of large minimum acreage standards has seen the return of a neighborhood school in at least one community.

Read more about this exciting transformation here.

Chad Emerson, Faulkner U.

September 21, 2010 | Permalink | Comments (0) | TrackBack (0)