Friday, February 26, 2010
Varsha Rajora has posted Land Acquisition: Its Legal and Constitutional Implications. The abstract:
Property is the most ancient, the most vital institution, with which man became concerned. Its original function is to secure physical existence. It is a social concept and being a social concept is a creation of law.
According to Bentham, Property and law are born together and die together. He felt that before laws were made there was no property and that if the laws were taken away property would cease . If the definition of property is examined from the Anglo-American Jurisprudence and from the Russian Jurisprudence, they apparently reflect the contradictory views.
The 5th and 14th Amendment to the Constitution of the United States of America says that, “No person shall be deprived of his life, liberty or property, without due process of law”. According to it, property, the term in its broader sense, is the right of dominion, possession, and power of dispossession which may be acquired over a physical thing, and not the thing itself.
Property, in a sense, is the projection outside, of a man’s personality. Man is identified by his physical and mental characteristics. And in the image of the person must be included not only his tastes, preferences, but also the objects of personal possession indissolubly associated with him. These things achieve an immorality of their own.
The Indian view has always been that property, or at any rate, the right to the possession of it, belonged to the person who put the land first to beneficial use. There is nothing anti-social in the concept of personal possession. Even in socialistic countries, the private ownership of articles that are manufactured by the persons themselves is recognized. Ownership of property was an item in the Declaration of Human Rights. In the American Constitution, the importance of this aspect was recognized to the extent that it was said that the guarantee of liberty of a person by itself included protection of the rights of property and it was not necessary to have word ‘property’ included in the amendment to the constitution. A citizen of India has the right to acquire, hold and disposed of the property. The ownership and control of the material resources of the community are so distributed as best to sub serve the common good.
Daniel Lyons (Boston College) has posted Public Use, Public Choice and the Urban Growth Machine: Competing Political Economies of Takings Law, University of Michigan Journal of Law Reform, Vol. 42, p. 265 (2009). The abstract:
The Kelo decision has unleashed a tidal wave of legislative reforms ostensibly seeking to control eminent domain abuse. But as a policy matter, it is impossible to determine what limits should be placed upon local government without understanding how cities grow and develop, and how local governments make decisions to shape the communities over which they preside. This Article examines takings through two very different models of urban political economy: public choice theory and the quasi-Marxist Urban Growth Machine model. These models approach takings from diametrically opposite perspectives, and offer differing perspectives at the margin regarding proper and improper condemnations. But surprisingly, both models stand united in opposition to economic development takings and both view skeptically the current wave of eminent domain reform. By discussing why each model comes to this conclusion, this Article sheds additional light upon the substantive limits that legislatures should place upon eminent domain authority and procedural reforms that would help assure proper exercises of that power within this circumscribed scope. The Article also recommends greater cooperation between legislatures and judiciaries to develop these broad standards and to assure that condemnation authorities adhere to them in individual cases.
Thursday, February 25, 2010
For many of us in the South who live with monuments on nearly every street corner of one kind or another, the recent controversy over monument designations "out West" is surprising. On the other hand, most people don't think of monuments being land. (One South Carolina exception is the Congaree Swamp National Monument, a truly beautiful old-growth floodplain forest.) Kirk Johnson has written an interesting article, "In the West, 'Monument' Is a Fighting Word," New York Times (Feb. 20, 2010), that captures this disconnect. Click here for a link to his article. Notwithstanding initial opposition in some western states to land monument designations a few decades ago, today most seek to capitalize on and promote access to these national treasures.
Will Cook, Charleston School of Law
Wednesday, February 24, 2010
Ernesto Schargrodsky (Universidad Torcuato Di Tella) and Sebastian Galiani (Washington U--Economics) have posted Property Rights for the Poor: Effects of Land Titling. The abstract:
Secure property rights are considered a key determinant of economic development. The evaluation of the causal effects of property rights, however, is a difficult task as their allocation is typically endogenous. To overcome this identification problem, we exploit a natural experiment in the allocation of land titles. In 1981, squatters occupied a piece of land in a poor suburban area of Buenos Aires. In 1984, a law was passed expropriating the former owners’ land to entitle the occupants. Some original owners accepted the government compensation, while others disputed the compensation payment in the slow Argentine courts. These different decisions by the former owners generated an exogenous allocation of property rights across squatters. Using data from two surveys performed in 2003 and 2007, we find that entitled families substantially increased housing investment, reduced household size, and enhanced the education of their children relative to the control group. These effects, however, did not take place through improvements in access to credit. Our results suggest that land titling can be an important tool for poverty reduction, albeit not through the shortcut of credit access, but through the slow channel of increased physical and human capital investment, which should help to reduce poverty in the future generations.
Jamie Roskie mentioned this event once before, but since it is about to take place I thought I'd post a reminder. The place to be on Friday, Feb. 26, is in Houston at the UH Law School's sixth annual Environmental & Engergy Law & Policy Journal symposium: Climate Change, Water, & Adaptive Law.
Prof. Tony Arnold (Louisville; visiting at UH) has assembled an excellent lineup of speakers, including law profs Robin Kundis Craig (Florida State), Noah Hall (Wayne State), A. Dan Tarlock (Chicago-Kent), and Elizabeth Burleson (South Dakota), plus a number of other points of view from experienced practitioners, scientists, and politicians. More info at the link above. It looks like an interesting event!
Tuesday, February 23, 2010
This story from NPR about the State of California's new law requiring certain "green" measures for all new construction represents a fundamental flaw with the whole idea of "green" new housing.
The fundamental flaw is the idea that building a new house--no matter how many eco-friendly features it may have--is "greener" than retrofitting, renovating, or rehabbing existing structures.
The story touches on the concept of "embodied energy" which is the reason that renovating is almost always greener than new construction. Unfortunately, the California law appears to slant the playing field in favor of new green construction as opposed to "green renovation" of existing structures.
The other tricky part is how their is no maximum size on these new "green" homes. That's key because you can put in all the green gadgets you want but a 2,000 square foot or smaller house is almost always going to be more efficient in environmental performance than large structures. Really what this law is doing is mandating that inefficiently sized new homes operate more efficiently.
If they really wanted to address the issue of green building, the state would incentivize the renovation of existing structures and the construction of only those new structures that are not oversized in scale.
The end result? Good intentions but bad execution by California.
--Chad Emerson, Faulkner U.
Monday, February 22, 2010
New York City's plan for affordable housing under Mayor Bloomberg, called the New Housing Marketplace Plan, anticipates the "creation or preservation of 165,000 affordable homes," according to Cara Buckley's February 21, 2010, article in the New York Times. Click here for a link to Buckley's article, "City's New Plan on Affordable Housing: Build Less, Preserve More." "Preservation of affordable housing" under the Plan, however, is not without controversy. It relies on rent controls, a market-bending mechanism that's sure to generate criticism from free market sectors. NYC officials have explained that this move is necessary now more than ever, especially in light of the ongoing financial crisis, and in anticipation of the next housing boom. During the boom years, all things being equal, property owners often convert rental units to condominiums or cooperatives in order to sell them, a decision that decreases the availability of rental stock in housing markets, along with affordable housing supply.
Will Cook, Charleston School of Law
I'm on the listserv for EPA's Smart Growth office. Here's an announcement that came over the weekend.
Free technical assistance available!
The Development, Community, and Environment Division in EPA’s Office of
Policy, Economics, and Innovation is seeking applications for technical
assistance from communities that want to incorporate smart growth in
their future development to meet environmental and other community
goals. This request is being coordinated under the interagency
Partnership for Sustainable Communities. Staff from HUD and DOT will
assist in the provision of this technical assistance.
Eligible entities are tribal, local, regional, and state governments,
and nonprofit organizations that have a demonstrated partnership with a
governmental entity. Letters of interest are due at 3:00 pm EST, April
EPA has identified some key topics in which communities are likely to
benefit from technical assistance:
- climate change
- equitable development
- financing and planning infrastructure investments
- hazard mitigation plans
- removing local barriers to implementing LEED-ND
- suburban retrofit
- transportation solutions for rural communities and places without rail
- cities in transition (significant population loss, poverty, or
Proposals are not limited to requests for technical assistance in only
these thematic areas; other topics for assistance are welcome and
encouraged, provided they demonstrate cutting-edge challenges and the
possibility of replicable solutions. The type of work may incorporate
policy analysis and review, planning and visioning processes,
scorecard/ranking criteria development and assessment, and/or other
elements pertinent to the role of the applicant.
Selected communities or states will receive assistance in the form of a
multi-day visit from a team of experts organized by EPA, HUD and DOT and
other national partners to work with local leaders. EPA plans to assist
three to four communities over a period of twelve months. The Agency
anticipates announcing the selected communities in fall of 2010.
For more information and application materials, visit
Please share this information with communities in need of assistance.
Jamie Baker Roskie
From today's Gainesville (Ga.) Times, a story about a developer who is offering to double the first time homebuyer and "move up" homebuyer tax credits as an incentive to buy in his subdivision in South Hall County (less than an hour north of Atlanta). I've heard of lots of incentives, but that's a new one on me.
Jamie Baker Roskie
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- Two upcoming RMMLF events: 61st Annual Institute (July 16-18 in Anchorage) and 17th Institute for Natural Resources Law Teachers (May 27-29 at Utah Law)
- First Principles for Regulating the Sharing Economy
- Webinar on New Markets Tax Credits and rural CED: Thursday, Feb 26