Saturday, October 9, 2010

Malloy on Adam Smith in the Courts of the United States

Robin Paul Malloy (Syracuse) has posted Adam Smith in the Courts of the United States, Loyola Law Review Vol. 56, p. 33 (2010).  The abstract:

Be it on topics of property, contract, commerce, trade, tax, legal history, or other matters, jurisprudence in the United States often invokes economic thinking in providing a rationale for legal outcomes. Consequently, I wondered how often the appeal to economic thinking in the courts included a reference to Adam Smith, the founder of modern economics. This essay traces the citations to Adam Smith in the judicial opinions of the Federal Courts starting with the first two cases to cite Smith in 1796; 214 years ago. The essay provides a brief contextual discussion about Smith and the way in which he has been cited over the years. This is followed by a report on the full set of citations to Adam Smith in the case opinions of the Federal Courts and in the legal briefs filed in those cases. 

Between the years 1796 and 2009, Adam Smith is directly referenced in 162 cases, and in legal briefs filed in 213 cases. Over time Smith is cited for different purposes. He is cited in case opinions dealing with a range of topics including: tax, trade, commerce, labor, antitrust, and private property. The way in which Smith is referenced over time also changes. In general, references to Smith shift over time as he goes from being an authoritative reference on matters of taxation to being a mere iconic punctuation point in the arguments of those seeking to promote free markets and laissez-faire. 

The article offers quotations from case opinions and establishes a record of Adam Smith’s appearances in the Courts of the United States. Interestingly, 70% of the citations to Smith occur since 1970. Hopefully, the article will be a fun piece to read no matter what one’s specialized research or teaching area may be.

This article covers many topics and should be of interest to anyone working in the history or economic underpinnings of land use issues.  

Matt Festa

October 9, 2010 in Caselaw, Contracts, Economic Development, Federal Government, History, Judicial Review, Property Theory, Scholarship, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Nanda & Pancak on State Minimum Service Requirements for Real Estate Brokers

Anupam Randa (University of Reading) and Katherine A. Pancak (Connecticut--Business--Center for Real Estate & Urban Economic Studies) have posted Real Estate Brokers’ Duties to Their Clients: Why Some States Mandate Minimum Service Requirements, published in Cityscape, Vol. 12, No. 2, p. 105, 2010.  The abstract:

This study attempts to determine why certain states have adopted real estate broker minimum service laws in the United States. The federal government and academic literature assume that such laws were the result of anticompetitive industry collusion and, therefore, serve no consumer protection justification. Using hazard models and state data over 8 years, however, we find that factors reflecting state brokerage influence - strong industry associations and broker membership on licensing boards - do not result in the enactment of minimum service laws. Factors suggesting consumer protection motivations - greater number of complaints against brokers, stricter prelicensing requirements, and a Democratic state legislature - increase the likelihood of law adoption.

Matt Festa

October 9, 2010 in Federal Government, Housing, HUD, Local Government, Real Estate Transactions, Scholarship, State Government | Permalink | Comments (0) | TrackBack (0)

Korngold on Globalizing Conservation Easements

Gerald Korngold (New York Law School) has posted Globalizing Conservation Easements: Private Law Approaches for International Environmental Protection, forthcoming in the Wisconsin International Law Journal.  The abstract:

For the past thirty years nonprofit organizations have revolutionized open space and habitat conservation in the United States through the use of conservation easements. Pursuant to legislation, nonprofits may now acquire and hold perpetual restrictions that prevent alteration of the subject land’s natural and ecological features. These rights can be held “in gross,” with the result that the nonprofit need not own land near the restricted property and can be based in a distant location. 

Based on this success, proponents in more recent years have advocated the export of “conservation easements” from the United States to other countries. A vehicle like a conservation easement and having some or perhaps all of its attributes could be employed in other countries to achieve various local and national conservation goals. My thesis, however, is that while conservation easements could be a useful tool for preservation of land outside of the U.S., they may not be the most effective or suitable framework to advance conservation in all countries. Rather than pushing for adoption of an American style “conservation easement” elsewhere, other countries and American (and global) advocates of conservation devices should engage in a process to determine a given country’s appropriate conservation toolbox. That process should be free of American legal and conservation jargon and without a predisposition for U.S. legal structures, values, and policy choices. Each country must determine on its own whether private conservation restrictions meet its economic, social, and political realities and aspirations (many of which are quite different than the American experience reflected in American conservation easements) and what attributes the device should have on key issues such as duration, in gross enforcement, role of government, etc. These national and local goals can then be given life by finding an appropriate legal structure, ideally consistent with the country’s own jurisprudence and system. 

This article will provide a framework of the major policy and legal issues that could, and in my view should, inform a country’s decision to adopt private conservation restrictions. These include considerations of cost, efficiency, preference for private vs. governmental actors, the benefits and costs of perpetual limits on land, public regulation of land as an alternative, the specter of neocolonialism in environmental controls, the nature and capacity of the country’s nonprofit sector, and the local legal system. Finally, the learning about conservation restrictions should be a two-way street, not just the export of American methods: the views of some other countries about governmental involvement in private conservation may teach valuable lessons to American jurisdictions about the need for an increased role of government and the public in certain aspects of the selection, modification, and termination of a some conservation easements.

Matt Festa

October 9, 2010 in Comparative Land Use, Conservation Easements, Environmental Law, Environmentalism, Scholarship | Permalink | Comments (0) | TrackBack (0)

Blumenthal & Turnipseed on the Polling Place Priming Effect

Jeremy A. Blumenthal (Syracuse) & Terry L. Turnipseed (Syracuse) have posted Is Voting in Churches (or Anywhere Else) Unconstitutional?: The Polling Place Priming (PPP) Effect, forthcoming in the Boston University Law Review.  The abstract:

A substantial social science literature has demonstrated the power of situational cues on behavior, decisions, choices, attitudes, and emotions. Moreover, recent findings demonstrate that the place where a citizen casts a ballot – Town Hall, a fire station, a school, a church, a library – can itself influence that citizen’s vote, by priming particular concepts, values, or ideals that nudge the voter in a particular direction. More important, that effect – what we call the Polling Place Priming Effect or the PPP Effect – nudges voters in a predictable direction – that is, it leads to a systematic, non-random bias in individuals’ decision-making. For example, school locations activate pro-education concepts and norms, and thus lead to votes supportive of education, specifically, allocating more tax dollars toward education. Voting in churches activates conservative Christian values, leading to support for conservative candidates who express such values, and activates anti-abortion norms as well.

Here we discuss the legal and policy implications of the PPP Effect, focusing on the specific question of the constitutionality of voting in churches. We then connect these findings with similar challenges to voting procedures. We suggest that both the church challenges and these other analogous disputes – and courts’ responses to these challenges – fail to fully take into account the unconscious nature of the influence on a citizen’s decision-making, and warrant a reconsideration of First Amendment and Equal Protection jurisprudence. Drawing on recent scholarship in the abortion rights context, we articulate a plausible approach to grounding such challenges that does consider that unconscious influence. We then connect our discussion with recent steps toward reducing or altogether eliminating the use of polling places, by addressing its relationship to calls for absentee or convenience voting. We close by broadening our discussion and identifying other legal and policy contexts to which the PPP Effect might be relevant, and suggesting empirical research that might address such possibilities.

This is an interesting topic for its intersections with several land use areas: local government, constitutional law, religious land use, behavioral studies, and political theory.  It's also very timely, with some important elections just around the corner.

Matt Festa

October 9, 2010 in Constitutional Law, First Amendment, Local Government, Politics, RLUIPA, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, October 7, 2010

CityCenter - New Urbanism in Vegas?

We're having a little run of Las Vegas related posts this week, so I thought I'd post an excerpt from the recent New Yorker article on CityCenter:

The complex is called CityCenter, and it is the biggest construction project in the history of Las Vegas. It has three hotels, two condominium towers, a shopping mall, a convention center, a couple of dozen restaurants, a private monorail, and a casino. There was to have been a fourth hotel, whose opening has been delayed indefinitely. But even without it the project contains nearly eighteen million square feet of space, the equivalent of roughly six Empire State Buildings. “We wanted to create an urban space that would expand our center of gravity,” Jim Murren, the chairman of the company, told me. Murren, an art and architecture buff who studied urban planning in college and wrote his undergraduate thesis on the design of small urban parks, oversaw the selection of architects, and the result is a kind of gated community of glittering starchitect ambition. There are major buildings by Daniel Libeskind, Rafael Viñoly, Helmut Jahn, Pelli Clarke Pelli, Kohn Pedersen Fox, and Norman Foster; and interiors by Peter Marino, Lewis Tsurumaki Lewis, Bentel and Bentel, and AvroKO. There are also prominent sculptures by Maya Lin, Nancy Rubins, and Claes Oldenburg and Coosje van Bruggen. “The idea I wanted to convey was to bring smarter planning to the development process in Las Vegas, to expand our boundaries of knowledge,” Murren told me. “Las Vegas is always looked down upon. CityCenter is a counterpoint to the kitschiness.”

I've never been a huge fan of Vegas, even though my husband and I once renewed our wedding vows before an Elvis impersonator at Graceland Chapel and had dinner afterward at the Stratosphere - where we could hear the screams of the 'coaster riders over the Michael Jackson impersonator in the bar. I'm a little bit confused, though, why this company is trying to bring what are now very typical urban forms into a totally unique urban environment.  It's hard to say how that's "expanding [the] boundaries of knowledge." We'll see if they succeed.

Jamie Baker Roskie

October 7, 2010 in Development, Las Vegas, New Urbanism | Permalink | Comments (0) | TrackBack (0)

Ruhl on Ecosystem Services and the Clean Water Act

J.B. Ruhl (Florida State) has posted Ecosystem Services and the Clean Water Act: Strategies for Fitting New Science into Old Laws.  The abstract:  

This Article explores the administrative reform potential that exists for integrating new knowledge about ecosystem services into Clean Water Act (CWA) regulatory programs as an example for all environmental laws. Part II of the Article reviews the relevant general rules of federal administrative law governing agency interpretation of the policy space available under statutory authority for integrating new science into decision making. Part III then explores the strategies an agency such as EPA can use under those rules to integrate the concept of ecosystem services into regulatory programs by searching for statutory provisions to support what I call "direct protection" authority and "performance metric" authority. Part IV of the Article turns to the dredge and fill permit program of section 404 of the CWA and the water quality standards and total maximum daily load (TMDL) program of section 303 of the CWA as its case studies, showing how opportunities for and obstacles to the two integration strategies arise in the structure and text of the statute. The Article closes with some thoughts on a more overarching agenda for working ecosystem services into existing federal environmental protection programs.

Matt Festa

October 7, 2010 in Environmental Law, Environmentalism, Federal Government, Scholarship, Water, Wetlands | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 6, 2010

EPA Announces Registration for 2011 New Partners for Smart Growth Conference

From Roberta White at EPA:

Conference registration is now open for the 10th Annual New Partners for Smart Growth Conference, which will be held on February 3-5, 2011 in Charlotte, North Carolina.

The multi-disciplinary program will include over 100 sessions and will feature cutting-edge policies and programs, projects, strategies and implementation tools that address the challenges of implementing smart growth development. The 2011 conference will include an underlying theme of capacity-building and financing smart growth. Conference sessions will focus on issues such as: financing smart growth and capacity-building; improving local economies and job creation; reducing greenhouse gas emissions; improving transportation systems and land use patterns; improving water quality; improving public health and safety; conserving energy and other natural resources; promoting equitable development and environmental justice; providing affordable housing choices; and creating safer and healthier communities for all. Several sessions will be approved for AICP continuing education credits.

The conference agenda also includes special events, including a one-day workshop on February 2, 2011 entitled " Achieving Equitable Development:Strategies to Empower Community Organizations." Visit for detailed information on the conference program, tours of model projects, special events, invited speakers, hotel and transportation information, and to REGISTER NOW!

This event always sounds super interesting to me.  Maybe next year I can make it - Charlotte's not too far from Athens.

Jamie Baker Roskie

October 6, 2010 in Conferences, Federal Government, Smart Growth | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 5, 2010

Lefcoe on the Uses and Abuses of Tax Increment Financing

George Lefcoe (Southern California) has posted Competing for the Next Hundred Million Americans: The Uses and Abuses of Tax Increment Financing.  The abstract:

Demographers predict that the US population will grow by one hundred million in 2050. Newcomers will settle in suburbia, particularly to the fast growing big cities of the south and west, cities in the resurgent heartland of the country, exurbia and ‘superstar cities’. 

Communities eager to appeal to these newcomers will use tax increment financing for public improvements such as stadiums, museums, plazas and promenades. These public improvements are often integrated into signature private redevelopment projects carefully designed to achieve environmental and planning objectives by being pedestrian-friendly, high density, and mixed use, accessible not only by automobile but public transit as well. 

After illustrating the beneficial use of tax increment financing, I describe six major criticisms often leveled against tax increment financing (TIF). (1) TIF helps outer suburbs lure jobs from center cities and inner suburbs; (2) TIF should be confined to seriously blighted areas and is not; (3) TIF is often used to subsidize the increased supply of retail development in markets where demand is static, achieving little except the displacement of sales from other locations; (4) cities sponsoring tax increment projects unfairly and inefficiently drain property tax revenues from other taxing entities including schools and counties; (5) There are few serious obstacles preventing local governments from sponsoring TIF projects in places that would have attracted private development anyway, or bestowing subsidies greater than necessary upon firms agreeing to locate in marginal areas; and (6) Many local governments don’t bother to analyze whether TIF projects are net tax revenue producers or assess periodically whether actual yields match initial projections.
We're working on TIFs right now in my state & local government class.  Students find these animals to be challenging and interesting, because they are very powerful drivers of land use yet fairly obscure to the general public.  This article helps explain TIFs and put them in the context of land use debates over density, development, and urbanism.

Matt Festa

October 5, 2010 in Community Design, Density, Development, Environmentalism, Finance, Local Government, New Urbanism, Pedestrian, Planning, Redevelopment, Scholarship, Suburbs, Transportation, Urbanism | Permalink | Comments (0) | TrackBack (0)

Monday, October 4, 2010

Fischel on the Persistence of Localism in Zoning

William A. Fischel (Dartmouth, economics) has posted The Evolution of Zoning Since the 1980s: The Persistence of Localism.  The abstract:

Zoning is the regulation of the use of land by local government. Although it is the most jealously guarded municipal power, zoning is not a static institution. I demonstrate this by reviewing several "top down" attempts to reform zoning in the last three decades. Examples are the affordable housing movement and regulatory takings litigation. I argue that these reforms have either failed or tended to make local zoning more restrictive. I then review new research on the origins of zoning in Los Angeles and find evidence that zoning has always been more of a bottom up institution than most of its critics have assumed. Local knowledge of neighborhood conditions and widespread ownership of property are the most important factors that keep zoning local. Reforms that do not take into account these factors are not likely to succeed.

Any paper by Prof. Fischel is sure to be a must-read for land use and local government scholars, and this one looks to be very interesting. 

Matt Festa

October 4, 2010 in Affordable Housing, California, Local Government, Scholarship, Takings, Zoning | Permalink | Comments (0) | TrackBack (0)

Speaking of Las Vegas...

If you are in the running for one of the positions Ngai's previous post references (or, for that matter, just visiting Nevada's most populous city), be careful when considering where you stay.

If you're not, then you might just be burned by the Vdara "Death Ray".  

One wonders how this type of thing slipped by designer, inspectors, and building officials on a multi-billion dollar project.

--Chad Emerson, Faulkner U.

October 4, 2010 | Permalink | Comments (1) | TrackBack (0)