Saturday, November 20, 2010

Head on Grasslands at Risk

John W. Head (Kansas) has posted International Legal Regimes to Balance the Protection of Prairies and Grasslands with Their Agricultural Use Part One – Grasslands at Risk, a working paper for the Center for International Trade and Agriculture (CITA).  The abstract:

Grasslands abound on Earth, but humans have damaged them profoundly. This paper – part of a book project focusing on the international legal regimes needed to strike an appropriate balance between the protection of grassland areas and their use for agricultural production – identifies where grasslands are located, what makes them distinct parts of our natural order, how they have been degraded, and why that matters.

Some points that are fundamental to this discussion include these: (1) grassland ecoregions exist both in tropical and in temperate zones of the Earth, and while there are important differences both between and within each of these two categories of grasslands, their similarities warrant looking at the two together; (2) grasslands are dramatically more complex and full of life than most people realize, and indeed the subtlety of their richness probably contributes to their abuse; (3) that abuse takes many forms and springs from many causes, including urban encroachment, forest encroachment (especially through fire suppression), habitat fragmentation, agricultural conversion, inappropriate grazing practices, water mismanagement, and recreational frivolity; and (4) human abuse of the world’s grasslands incurs a huge economic and financial cost to this and future generations, in part because it squanders the benefits that grasslands can provide by way of protecting water quality, buffering drastic natural phenomena (such as storms and floods), conserving soil resources, facilitating prudent recreation, maintaining critical habitat for wildlife, protecting biodiversity more generally, and contributing to the global food supply through sustainable use in agricultural and livestock operations.

The condition and use of grasslands around the world have a direct bearing on agricultural production and on the international trade in agricultural commodities that is essential for the Earth’s future. Hence this paper offers a factual foundation for legal and policy discussions; one or more later papers by the same author will contribute further to those discussions.

Matt Festa

November 20, 2010 in Agriculture, Comparative Land Use, Environmental Law, Environmentalism, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, November 19, 2010

Juergensmeyer on Rainwater Recapture

Julian Conrad Juergensmeyer (Georgia State) has posted Rainwater Recapture: Development Regulations Promoting Water Conservation, which was published in a symposium issue of the John Marshall Law Review, Vol. 43, p. 359 (2010).  The abstract:

The increasing need for water conservation in the eastern as well as western parts of the United States is focusing attention on rainwater recapture. The technology available is effective and relatively inexpensive. Using land development regulations to require or encourage new development to incorporate rainwater recapture facilities is one approach to alleviation of local water shortages.

Prof. Juergensmeyer's paper was a keynote presentation at the Kratovil Conference on Real Estate Law and Practice, hosted by John Marshall's Center for Real Estate Law.  By coincidence, I just got in the mail this morning a very nice brochure about the Center.  Directed by Prof. Celeste M. Hammond, it offers a graduate program in Real Estate Law leading to either an LLM for lawyers or to an MS for real estate professionals.  Looks like a great program with lots of things going on; for more info, check out the Center's website.

Matt Festa

November 19, 2010 in Chicago, Environmental Law, Environmentalism, Real Estate Transactions, Scholarship, Teaching, Water | Permalink | Comments (0) | TrackBack (0)

Ruhl on General Design Principles for Resilience and Adaptive Capacity

J.B. Ruhl (Florida State) has posted General Design Principles for Resilience and Adaptive Capacity in Legal Systems: Applications to Climate Change Adaptation Law, forthcoming in the North Carolina Law Review, 2011.  The abstract:

No force has put more pressure on the legal system than is likely to be exerted as climate change begins to disrupt the settled expectations of humans. Demands on the legal system will be intense and long-term, but is the law up to the task? If it is, it will at least in part be because the legal system proves to be resilient and adaptive. The question this Article explores, therefore, is how to think about designing legal instruments and institutions now with confidence they will be resilient and adaptive to looming problems as massive, variable, and long-term in scale as climate change. Drawing from the body of resilience theory forged in natural and social sciences, this Article is the first to synthesize resilience theory in a framework relevant to lawyers and explore the general design principles it suggests for legal systems. Part I examines resilience - what it is and how to design for it in legal systems. It examines the normative dimensions of resilience and makes important distinctions between resilience of legal systems, resilience of laws they produce, and resilience of the other social and natural systems law addresses. Part II provides the theoretical context and design principles for adaptive capacity, focusing on adaptive management theory as an example for legal design. Part III suggests applications of these general principles to the challenge of designing law for responding to climate change, arguing that climate change adaptation law should draw from theories of adaptive management, dynamic federalism, new governance, and trans-governmental networks.

Matt Festa

November 19, 2010 in Environmental Law, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, November 18, 2010

Kids' Playscape Replicates Planning Problems

From the Conservative Blogger, a post (with accompanying photo) about how the children's play area at the Salt Lake City airport inadvertently (or cleverly) replicates the typical planning dilemas of a small town.  My favorites:

Underutilized Downtown: Even without those dirty deeds by developers to bring a Walmart to town, the downtown is suffering from a lack of businesses and street life. The town’s goal to bring artists and boutique shops was never realized due to personality conflicts between the local planning board and the chamber of commerce...

City Park: The park is unfortunately located on an environmentally-degraded site on the edge of town, the result of a manufacturing plant that skipped town 20 years ago and left the town without a major employer or a business generator for the freight railroad.

Surface Parking Lot: The downtown merchants complained of a parking problem downtown after years of being in a state of denial over their employees occupying parking spaces on Main Street, prohibiting shoppers from accessing their stores. The town spent millions to acquire land on the edge of downtown to build a non-descript parking facility that is rarely used except by vagrants wishing to make drug deals.

For those of you who travel to or live in the mountain west, next time you fly through Salt Lake check out this "emerging planning conundrum" near the E Gates.

Jamie Baker Roskie

November 18, 2010 in Community Design, Community Economic Development, Development, Downtown, Humorous, Planning | Permalink | Comments (0) | TrackBack (0)

Food Truck Scholarship

Chad has a great post below on the latest craze, food trucks.  By coincidence, just yesterday I saw this SSRN paper by Ernesto Hernandez Lopez (Chapman): LA’s Taco Truck War: How Law Cooks Food Culture Contests.  The abstract:

This paper examines the Los Angeles “Taco Truck War” (2008-9), when the city of Los Angeles and LA county used parking regulations to restrict “loncheros,” i.e. “taco trucks.” It describes the legal doctrine used by courts to invalidate these local restrictions. The California Vehicle code makes local food truck regulations illegal. Decades of court decisions affirm this. The paper sheds light, legal and cultural, on food truck debates, which will surely expand nationwide. It examines: the cultural and business arguments for food truck regulations; food’s role in migrant, community, and national identities; Mexican food’s influence in California culture; and recent trends in food trucks such as Koggi BBQ.

And from earlier this year, Alfonso Morales (Urban & Regional Planning, Wisconsin) and Gregg W. Kettles (Law, Mississippi College) posted Healthy Food Outside: Farmers' Markets, Taco Trucks, and Sidewalk Fruit Vendors, published in the Journal of Contemporary Health Law and Policy, Vol. 20 (2009).  The abstract:

This paper explores the many dimensions of street vending and public markets, the multiple intersections vending and markets have with food regulation, and the historical connection markets have with other policy problems. We develop the article in four parts, following the introduction found in section one the article touches on three elements of law and public policy. The second section considers markets and merchants in public goods with their associated dilemmas. Our approach is to reconfigure the emphasis on public space as transportation by justifying the use of the street and sidewalk for street vending. The importance of public space for commerce and other creative activities bridges the second and third sections of the article. The third section chronicles the history of law and regulation around street and public markets. Here we emphasize how cities historically used public markets as public policy tools to address food security, employment, and to help those growing cities accommodate new immigrants. The fourth section focuses on public health by examining the law of outdoor food sold on the street. Through our analysis we set forth numerous suggestions for advocacy, policy, and legal reform.

Chad's right, food trucks are becoming a big deal.  I was skeptical at first, but it looks like they have come a long way from the "roach coaches" I remember on Army posts.  Check out the articles that he linked to, and for an even less highbrow alternative you can watch the Food Network's The Great Food Truck Race (you know that a trend has arrived when it gets a reality show).  It's a serious question, though, how cities are going to choose to accommodate or regulate this phenomenon through their land use laws.  

Matt Festa

November 18, 2010 in California, Food, Local Government, Parking, Pedestrian, Scholarship | Permalink | Comments (0) | TrackBack (0)

Here Come the Food Trucks...

This NOLA story discusses a phenomenon that is becoming more and more popular in many cities:  the food truck.

Historically, the term "food truck" often conjures up images of the mobile deli sandwich vehicle stopping at work sites to sell pre-made roast beef and turkey sandwiches on lunch breaks.

The new wave of food trucks are decidedly more hip though.  Cities like Austin, NYC, and LA are finding high profile chefs taking an interest in mobile trucks selling high quality and artisan food.

The land use angle comes up when questions about, among other things, permitted uses arise.  That is, can a food truck park in a residential neighborhood that otherwise does not allow non-residential uses?

An interesting question is whether these elaborate food trucks are more akin to the ice cream truck that quickly passes through the neighborhood or something more involved that may in certain cases park for an afternoon and maybe even put out chairs.

You can find more on food truck zoning from Planetizen here as well as here.

--Chad Emerson, Faulkner U.

November 18, 2010 | Permalink | Comments (0) | TrackBack (0)

Con law geek? Try land use.

I've been thinking for some time that land use just might be the field that has the most interesting constitutional law issues today.  Timothy Zick’s article, linked in the post below, is primarily a First Amendment paper.  But it’s about First Amendment rights with respect to speech in public parks, which makes it a land use issue too.  As with most free speech issues, the speech is only controversial to the extent that it happens in a place--which then makes it a land use issue.  Much of First Amendment law revolves around definitions and analyses of the "forum" in which speech takes place, and whether it is in the public square, a public forum, whether the speech represents private or government points of view.  The First Amendment looms large in land use law (or, perhaps, vice versa)-- free speech, public forums, commercial speech, aesthetic regulation, sexually-oriented businesses assemblies, religious land use, and more.  

Jamie posted a link recently to a video that has been making the rounds with a cartoon robot law firm partner mocking a wannabe law student for, among other things, her desire to practice constitutional law.  ("Do you have a time machine, so that you can go to Harvard in the 1970s?").  The video is hilarious, and it is undoubtedly true that there aren't a lot of opportunities for idealistic young con law geeks to practice straight-up constitutional law in the tradition of the big Supreme Court cases we all learn.  But my one quibble is that if you are interested in constitutional law, it's alive and well in the land use field--not only the First Amendment issues, but also property rights, eminent domain, regulatory takings, vested rights, civil rights, fair housing, exclusionary zoning, growth controls, environmental regulation, equal protection, due process, separation of powers, and federalism.  There are also issues presented by state constitutional law, which gets much less attention in law school curricula. 

Readers of this blog will probably not be surprised at my observation that constitutional law and land use are intertwined, but I do find that many students and lawyers don’t intuitively make the connection, until they start to hear some of the examples.  It's because the exercise of our freedoms almost always happens in a particular place, and our places are governed by land use rules.  While the issues may often be primarily local, they are no less interesting, or "constitutional."  

Good land use attorneys need a good understanding of and appreciation for basic constitutional law.  And even better, if you really like con law, land use might be the field where you have the most likely chance to advise on or litigate constitutional issues.  

Matt Festa

November 18, 2010 in Caselaw, Constitutional Law, Eminent Domain, Environmental Law, First Amendment, Housing, Property Rights, Scholarship, Supreme Court, Takings, Zoning | Permalink | Comments (0) | TrackBack (0)

Zick on the Vocality of Public Places and the Public Forum

Timothy Zick (William & Mary) has posted "Summum," the Vocality of Public Places, and the Public Forum, forthcoming in Brigham Young University Law Review, 2011.  The abstract:

This contribution to a symposium on the emerging complexities of government speech focuses on Pleasant Grove City v. Summum. Summum is a remarkable decision in several respects. It represents many firsts in terms of the Supreme Court's public speech jurisprudence: First to hold that the public forum doctrine is out of place in a public park (a traditional public forum); first to treat a public park as a channel of governmental speech; and first to expressly engage the communicative aspects (the vocality) of public place. Because the Court dispatched the public forum doctrine so quickly, one might think the decision has nothing much to say about the concept or status of the public forum. To the contrary, this piece contends that a close reading of Summum shows that the decision’s analysis and rationale may have a substantial effect on private speech rights in public places. The government speaker is not like any other speaker in a park or other public place. Its voice is louder, and its right to remain is stronger, than that of any private speaker. Most importantly, of course, government speakers have the power to exclude other voices. This piece argues that the Court’s conception of public places as channels of governmental speech, its heavy reliance on the analogy of private property ownership, and its suggestion that public places such as parks themselves convey governmental identity claims threaten to undermine fundamental tenets of the public forum concept and to limit private speech in public places.

Matt Festa

November 18, 2010 in Aesthetic Regulation, Caselaw, Constitutional Law, Eminent Domain, Federal Government, First Amendment, Judicial Review, Local Government, Property Rights, Scholarship, Signs, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 17, 2010

Today - Wind Ordinances Webinar

The US Department of Energy is hosting a webinar today:

Wind Energy Ordinances Webinar
Date: 11/17/2010
Contact: Susan Hinnen, NREL
1:00 p.m. Mountain Time

Join us for a discussion on wind energy ordinances and new tools being developed by Wind Powering America partners to educate local planners.
Speakers

    * Tom Tuffy, PennFuture
    * Erica Heller, Clarion Associates
    * David Loomis, Illinois State University

The Wind Powering America team hosts live Webinars with participant Q&A on a variety of themes. Each Webinar will focus on a particular subject of interest to the Wind Powering America community and will feature special guest experts, summarize the latest research on siting and deployment issues, and provide a chance for you to share your own experiences, ask questions, and engage with the Wind Powering America network. The Webinars will be posted on the Wind Powering America Web site after the events.

Visit the website for access information.

Thanks to Rita Kilpatrick at Southern Alliance for Clean Energy for the heads' up.

Jamie Baker Roskie

November 17, 2010 in Clean Energy, Wind Energy | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 16, 2010

McAllister on Enforcing Cap and Trade

Lesley K. McAllister (San Diego) has posted Enforcing Cap and Trade: A Tale of Two Programs, from San Diego Journal of Climate & Energy Law, Vol. 2, 2010  The abstract:

The ease of enforcement is often identified as a benefit of cap and trade regulation. Almost all such assertions are made based on the experience of the Acid Rain Program, a cap and trade program implemented by the US Environmental Protection Agency in 1995 to cap the sulfur dioxide emissions from the nation’s power plants. However, RECLAIM, a cap and trade program that began the year before in Los Angeles’s South Coast Air Quality Management District, tells a very different story about how difficult and resource-intensive the enforcement of a cap and trade program can be. This article describes and analyzes enforcement data from these two programs to show that even when enforcement provisions are designed in a similar way, the enforcement systems and enforcement outcomes that prevail may be very different. The article features an empirical analysis of RECLAIM enforcement cases from the beginning of the program through 2006, characterizing them in terms of number, type, case processing times, and penalty amounts.

Matt Festa

November 16, 2010 in California, Environmental Law, Environmentalism, Federal Government, Scholarship | Permalink | Comments (0) | TrackBack (0)

Johnson on En Masse Evictions Caused by Subprime Crisis

Creola Johnson has published Renters evicted en masse: collateral damage arising from the subprime foreclosure crisis in the Florida Law Review (62 Fla. L. Rev. 975 (2010), in case the Hein Online link doesn't work).

From the introduction:

Across the country, innocent renters are becoming victims of their landlords' inability to avoid foreclosure on their rental properties. Many are not receiving the legal rights that they are entitled to under federal and state law. For example, Marjorie Benedum and her husband Mel Harris came home from church in December 2009 to find a sheriff's notice on their door warning them to move out in ten days or be evicted from their Baltimore home. The notice came as a shock to Benedum and Harris as they had never failed to pay their rent on time. They learned their impending eviction was a result of a foreclosure on the property against their landlord. What the couple did not know when they found the notice of eviction is that they were entitled to stay in the property for ninety days under a new federal law. Luckily, this family learned their rights from a local attorney and did not have to immediately vacate their home, but not every family is so fortunate...

Many of the borrowers facing foreclosure are non-occupant owners. No doubt, some tried to be prudent investors who saw owning real estate as a long-term investment. Others were speculators or flippers-people who obtained adjustable rate loans to purchase homes for the sole purpose of reselling the homes at a profit within a year or two of purchase. However, when the housing bubble burst and economic conditions took a turn for the worse, many borrower-landlords became trapped with mortgage payments they could not afford and residential properties they could not sell.

The innocent victims of these borrower-landlords are consumers like the couple in Baltimore who simply had the misfortune of renting a house or apartment from a landlord unable to pay the mortgage. Despite having never defaulted on their rental payments to the landlord and the enactment of a new federal law giving tenants ninety days to vacate foreclosed properties, renters are being ordered to leave in as little as three days or face eviction. Some tenants are not even aware of the landlord's trouble until the sheriff's deputy arrives to evict them or until their utilities are turned off due to the landlord's failure to pay the utility bills. Scrambling to quickly come up with sufficient cash for moving expenses and a security deposit to get a new place to rent, some tenants then find themselves on the brink of homelessness.

This happened to some friends of ours here in Athens.  They had to scramble to find a new place to rent within a week, and they had to leave their huge, beautifully tended garden behind.   Fortunately they were able to find a new place in the same neighborhood quickly, but it was still a stressful and unfortunate situation.  I wish I'd know about this new federal law - perhaps it would have helped them. At least, maybe they would have been able to stay long enough to harvest their tomatoes!

Jamie Baker Roskie

November 16, 2010 in Housing, Mortgage Crisis, Scholarship | Permalink | Comments (0) | TrackBack (0)

Miller on the Strategic Default Debate Among Contract Scholars

Meredith R. Miller (Touro) has posted Strategic Default: The Popularization of a Debate Among Contract Scholars, forthcoming in the Cornell Real Estate Law Journal.  The abstract:

A June 2010 report estimates that roughly 20% of mortgage defaults in the first half of 2009 were “strategic.” “Strategic default” describes the situation where a home borrower has the financial ability to continue to pay her mortgage but chooses not to pay and walks away. The ubiquity of strategic default has lead to innumerable newspaper articles, blog posts, website comments and editorial musings on the morality of homeowners who can afford to pay but choose, instead, to walk away. This Article centers on the current public discourse concerning strategic default, which mirrors a continuing debate among scholars regarding whether the willful breach of a contract has a moral element.

For those scholars that maintain that it is possible to describe and prescribe contract law with a general, unifying theory, the debate is primarily one between promise-based theories and economic theory. This debate between promissory and economic theory reflects a perpetual volley concerning whether contract law should reflect the primacy of morality or efficiency. 

The argument of those that support strategic default reads like a case for efficient breach. Many of these commentators argue that the mortgage contract simply presents home borrowers with a choice: pay or surrender the property in foreclosure. If a homeowner is deep underwater, she is better off defaulting and the lender is no worse off relative to the bargain (after all, the lender agreed to foreclosure as a remedy). However, those who argue in favor of strategic default are counteracting a prevailing social norm that it is fundamentally immoral to willfully breach a contract. Many of the blog comments and even newspaper editorials have reflected a general sense that the homeowners who strategically default are acting shamefully. 

The public discussion further mirrors the academic debate about whether encouraging efficient breach enables the greatest public good or, instead, undermines the very convention of contracting. On the one hand, strategic default serves as an example of how encouragement of breach of contract may lead to a breakdown of confidence in the marketplace and, in turn, could inhibit market activity. On the other, it is difficult to muster sympathy for lenders, whose imprudent loans are a large piece of the systemic problems that precipitated the housing crisis.

In the end, to the extent that questions of morality are nuanced and contextual, the example of strategic default elucidates the futility of either morality or efficiency as a unifying descriptive or normative theory of contract law. Indeed, it suggests that instead of focusing on individual contracts between borrowers and lenders, a more fruitful public discourse should be reframed to focus on appropriate systemic reforms to prevent the practices that played a part in devastating outcomes for the housing industry, families and communities. Because the concerns about strategic default – neighborhood depreciation and market collapse – are systemic, the solutions should be driven by those concerns, rather than shaming individual borrowers who decide to walk away.

Matt Festa

November 16, 2010 in Contracts, Financial Crisis, Housing, Mortgage Crisis, Mortgages, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, November 15, 2010

School Locations and Student Safety...

Can where a school is located affect how safe its students and other workers/guests really are?

This Atlanta Journal Constitution op-ed argues the it definitely does:

The immense burden of traffic-related deaths should make roadway safety an absolute priority for Georgia legislators. State and local officials can support a variety of policies and programs that will enhance the safety of motorists, cyclists and pedestrians. These include:

● Adopt “Complete Streets” policies that require the implementation of engineering strategies and design characteristics to make roadways safer.

● Increase funding for programs that encourage walking and biking (e.g., Safe Routes to School) to increase safety, promote physical activity and reduce motor vehicle use.

● Revise school siting policies that encourage the construction and renovation of schools that are accessible by walking or biking.

I agree that the link between walking safety and cars needs to be better realized and more effectively resolved.

--Chad Emerson, Faulkner U.

November 15, 2010 | Permalink | Comments (0) | TrackBack (0)

Sunday, November 14, 2010

McCarty on Crime in Mobile Home Communities

William P. McCarty (Criminology, Law, & Justice, U. of Illinois-Chicago) has posted Trailers and Trouble? An Examination of Crime in Mobile Home Communities, in Cityscape, Vol. 12, p. 127 (2010).  The abstract:

The purpose of this study is to ascertain whether the amount of crime in mobile home communities is greater than the amount of crime in other types of neighborhoods and to determine whether the difference in crime levels is significant even after controlling for multiple other variables. Using official crime reports and other data from Omaha, Nebraska, the study finds no significant difference in population-weighted crime rates between blocks with mobile home communities and other types of residential blocks. Multivariate models show that the presence of mobile home communities did not significantly affect crime rates. The implications of these findings for land use policy are explored.

Matt Festa

November 14, 2010 in Crime, Housing, Scholarship | Permalink | Comments (0) | TrackBack (0)

NY Times on DC Building Height Limits

The New York Times has an interesting article on the current discussion about the building height limits in Washington DC: In the Capital, Rethinking Old Limits on Buildings.  From the intro:

Its low-slung architecture is no accident. In 1910, Congress passed an act limiting the heights of buildings in the capital. The first residential skyscraper, the Cairo, had been built, and at 12 stories, it was higher than fire ladders could reach and scandalously out of sync with its smaller neighbors.

One hundred years later, most Washingtonians see the act as a good thing. Their sidewalks are shadowed by the outlines of trees, and the dome of the Capitol can be seen from most roof decks. The act, they say, preserves the unique nature of their city, whose landmarks draw millions of visitors each year.

Now, on the act’s centennial, a small tribe of developers, architects and urban experts are questioning the orthodoxy of the rule’s application. A modest change, they argue, would inject some vitality into the urban scene, would allow for greener construction, and could eventually deliver bigger tax receipts for the badly pinched city budget, currently in a hole of about $175 million.

But raising the limit is nothing short of sacrilege for preservationists here, who fear that any change, however slight, will open the door to more.

The DC building height limit controversy is a crystallization of many of the most significant and perplexing contemporary land use issues.  On the one hand, the height limit was one of the earliest and longest-standing land use regulations; it invokes the Enfant/Parisian heritage of the historical DC plan; and it has undoubtedly led to the very pleasant streetscapes and visuals in much of DC today.  On the other hand, it has mandated a density limit that has exacerbated the scarcity of urban land, inflated real estate prices, and helped cause the serious sprawl that has plagued the DC region over the past generation.  It is also an interesting debate, considering that many leading urban theorists call for greater density and vertical development, while in the nation's capital it will literally take an Act of Congress to move in that direction.  

Matt Festa

November 14, 2010 in Aesthetic Regulation, Architecture, Density, Development, Downtown, Federal Government, Historic Preservation, History, Local Government, Planning, Urbanism, Zoning | Permalink | Comments (0) | TrackBack (0)

Claeys on Exclusion and Exclusivity in Gridlock

Eric R. Claeys (George Mason) has posted Exclusion and Exclusivity in Gridlock, forthcoming in the Arizona Law Review, Vol. 53 (2011).  The essay reviews Michael Heller's Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives (2008).  The abstract:

This Essay (which was prepared for a symposium held at George Mason University School of Law) reviews Michael Heller’s book The Gridlock Economy, focusing especially on its conceptual priors. The book assumes as true the conception that follows from Calabresi and Melamed’s Cathedral framework, whereby property consists of a right to exclude others, and invasions of the right to exclude may be remedied by a property rule. This definition departs significantly from the conception of property that informs social practice and private law, whereby property consists of a normative interest in determining exclusively the use of an external asset. 

These differences lead The Gridlock Economy to make several conceptual and normative errors. In some cases (Moscow storefronts and Rhenish tolls), the book criticizes legal institutions for having too much property when in fact the problematic institutions are not property at all. In other cases (cotenancy partition and airplane overflights), the book criticizes legal institutions for having too much property when in fact existing law builds in discretion to limit property’s exclusivity to encourage the free and concurrent use of the propertized asset. And in some cases (redevelopment and private eminent domain), the book favors ad hoc government administration of a property dispute without being sensitive enough to the roles that socialization and respect for owner free action ordinarily play in property law.

Matt Festa

November 14, 2010 in Books, Property Rights, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)