August 17, 2012
Davis on Adverse Possession as a Redistributive Tool
Tessa Davis (Tulane) has posted Keeping the Welcome Mat Rolled-Up: Social Justice Theorists’ Failure to Embrace Adverse Possession as a Redistributive Tool, Journal of Transnational Law & Policy, Vol. 20, p. 73, 2010. The abstract:
J.A. Pye (Oxford) Ltd.and another v. Graham and another (Pye), a recent U.K. case, raised the question of whether adverse possession may violate a human right to own property. The case implicated the then recent bringing adverse possession into the human rights realm. Yet, a review of the case as it moved through the U.K. courts and the European Court of Human Rights reveals, however, that courts have not embraced a consideration of adverse possession as playing a role in substantive human rights or social justice concerns. This is due, in part, to the dearth of human rights and social justice scholarship on the doctrine. Though human rights and social justice theorists have failed to fully develop the doctrine, their theories lay the groundwork for utilizing adverse possession as a tool to fashion new property systems. Utilizing adverse possession as a social justice tool can help foster systems with widespread property distribution while actively recognizing and supporting human rights of both owners and those seeking ownership.
Just today I witnessed a spirited discussion of adverse possession law, so its good to see some writing on the theory.
Heintzelman, Walsh, & Grzsekowiak on Open Space Referenda
Martin D. Heintzelman (Clarkson--Business), Patrick J. Walsh, and Dustin J. Grzeskowiak (Clarkson--Business) have posted Explaining the Appearance and Success of Open Space Referenda. The abstract:
To guard against urban sprawl, many communities in the United States have begun enacting policies to preserve open space, often through local voter referenda. New Jersey sponsors such municipal action through the Green Acres Program by providing funding and low interest loans to towns that choose, through a referendum, to increase property taxes and spend the money raised on open space preservation for the purposes of conservation and/or recreation. Understanding which factors contribute to the appearance and success of these measures is important for policy makers and conservation advocates, not only in New Jersey, but across the United States. Although previous literature has examined this issue, this is the first study to account for spatial dependence/spatial autocorrelation and to explore dynamic issues through survival analysis. The traditional two stage model from the literature is extended by incorporating a Bayesian spatial probit for the first stage and a maximum-likelihood spatial error model in the second stage. A Cox – proportional hazard model is used to examine the timing of referenda appearance. Spatial dependence is found in the second stage of the analysis, indicating future studies should account for its influence. There is not strong evidence for spatial dependence or correlation in the first stage. The survival model is found to be a useful complement to the traditional probit analysis of the first stage.
August 16, 2012
Foreign Policy Special Issue on Cities--Focus on China
Foreign Policy recently has published its Special Report "Cities Issue." While the issue is themed on urban affairs generally, its articles coalesce around the amazing urban development taking place in China. From the website intro:
Our special issue dedicated to the cities of the future has its eye squarely toward China, because the cities of the future are increasingly going to be speaking Mandarin -- even more than you realize. It's no longer news that China has embarked on the largest mass urbanization in history, a monumental migration from country to city that will leave China with nearly a billion urbanites by 2025 and an astonishing 221 cities with populations over 1 million. But this isn't just about size: It's about global heft. And that's where the scale of China's transformation into a world leader is truly astonishing. In an exclusive index for FP, the McKinsey Global Institute has run the numbers to produce what we're calling The 75 Most Dynamic Cities of 2025 -- an extraordinary 29 of which are in China. Some are already global powers, from top-ranked Shanghai to manufacturing dynamo Shenzhen; others, from Fuzhou to Xiamen, were little more than provincial backwaters in the 20th century but look to be household names in the 21st, powering the global economy not just through their sheer size but also through their urban innovation and pulsing drive. Europe, meanwhile, will manage only three cities on the list by 2025; the United States finishes second to China -- a very distant second -- with 13. Still think that debate about Western decline is overblown?
There are a whole bunch of interesting articles at the website. Just one that I'll highlight is New Urbanism pioneer Peter Calthorpe's Weapons of Mass Urban Destruction: China's Cities are Making the Same Mistake America Made on the Path to Superpower Status. Again, there's a whole lot of interesting analysis at the FP Cities Issue website.
August 15, 2012
Fascinating 21st Century Real Estate Cases
The New York Observer has a list of the 15 Most Fascinating NY Real Estate Cases of the 21st Century, based on a survey of NYC real estate lawyers. Although most involve contracts or financing gone awry, a few involve zoning and land use disputes. They also make use of Sherlock Holmes-esque titles, like "The Case of the Mischievous Mall Developer."
Of particular interest are "The Case of the Masterpiece & The Condo Ad," involving a dispute over advertising, public art, and landmarking. The "Case of the Museum and the Architect" involves a building designed by Jean Nouvel next to MOMA, as well as zoning, landmarking and air rights issues. "The Case of the Brooklyn Basketball Arena" gives a very truncated summary of the series of legal battles over eminent domain and the construction of a new arena for the Brooklyn Nets. (For a more detailed account in response from critics of the development see the Atlantic Yards Report). And "The Case of the Abused J-51" details the legal battles over rent regulation following the $5.4 billion purchase of Stuyvesant Town.
August 14, 2012
The West is Burning, Then and Now
I've just driven the length of Idaho--south to north, north to south, some 600 miles in all--in the past few days. The law school's two campuses are six hours apart--one in Moscow, one in Boise--and I was heading up for the annual Convocation. Along the way, I listened to the audiobook version of New York Times' western correspondent Tim Egan's The Big Burn (2009). The book tells the story of the 1910 Idaho wildfire that provided the defining narrative to solidify the US Forest Service's role in American life (hear Egan discusss it here). Along the way, it also tells the story of how national forests came to be as both a political matter, but also in the personal stories of characters such as Theodore Roosevelt and Gifford Pinchot, the first director of the US Forest Service and its original architect. It is an epic story, and one of those rousing tellings that makes you remember why land use and environmental issues are so compelling.
My choice of the book to accompany me on the long drive was no coincidence, however. The summer in Idaho has been unrelentingly hot and dry, and the state is in flames. Smoke has hung over the city of Boise for much of the summer. In my drives up and down the state, there is a smoky haze over all of it. Just from the road, I saw two grass fires ablaze (picture of one to the right) and helicopters ferrying flame retardant to distant parts of the forest. The state's major north-south route, Highway 55, was closed earlier this month due to fire. Some fires are expected to burn till October. In eastern Washington, just over the border, some 60 homes were burned by wildfires this week.
This is my second summer in the inland Northwest, and my first summer when fire has so fully ensconced the landscape. It brings the issues discussed in The Big Burn to life, for one of the reasons Roosevelt and Pinchot offered for a forest service was fire suppression, an elusive goal then and now. With the Mountain West growing faster than any other region of the country, the question of fire in the region becomes prominent before us once again. Now, the promise of fire suppression is no longer only a supplement to calls for conservation, as it was in the days of Pinchot, but a necessary promise to all those new dwellers in the Mountain West who come here seeking a new life. How does a metropolitan Mountain West live with wildfire? The story Egan tells in The Big Burn, and my drive along this beautiful, smoke-choked state, give me pause at believing too strongly that we can contain wildfire entirely. Even in the new west, attention must be paid to the quixotic and devilish forces of nature, a fact you can smell in the air tonight, in Boise and across the west.
August 12, 2012
Krakoff & Rosser book on Tribes, Land, & the Environment
Sarah Krakoff (Colorado) and Ezra Rosser (American U) have posted Tribes, Land, and the Environment (Introduction), the intro to their new book TRIBES, LAND, AND THE ENVIRONMENT, Sarah Krakoff & Ezra Rosser eds., Published by Ashgate, ISBN 978-1-4094-2062-0, 2012. The abstract:
About the book: Legal and environmental concerns related to Indian law and tribal lands remain an understudied branch of both indigenous law and environmental law. Native American tribes have a far more complex relationship with the environment than is captured by the stereotype of Indians as environmental stewards. Meaningful tribal sovereignty requires that non-Indians recognize the right of Indians to determine their own relationship to the land and the environment. But tribes do not exist in a vacuum: in fact they are deeply affected by off-reservation activities and, similarly, tribal choices often have effects on nearby communities. This book brings together diverse essays by leading Indian law scholars across the disciplines of indigenous and environmental law. The chapters reveal the difficulties encountered by Native American tribes in attempts to establish their own environmental standards within federal Indian law and environmental law structures. Gleaning new insights from a focus on tribal land and property law, the collection studies the practice of tribal sovereignty as experienced by Indians and non-Indians, with an emphasis on the development and regulatory challenges these tribes face in the wake of climate change. This volume will advance the reader's knowledge and understanding of these challenging issues.
Prof. Rosser also sends along the links to the Ashgate publisher's page and to the Table of Contents. There are a lot of land use issues involved here and it's definitely a book worth checking out. Contributions include essays by the two editors and our own Jessica Owley, among other thoughtful writers.
Penalver on Progressive Lessons from DeSoto
Eduardo M. Penalver (Cornell) has posted The Costs of Regulation or the Consequences of Poverty? Progressive Lessons from De Soto, which is a chapter from the book Hernando de Soto and Property in a Market Economy, (D. Benjamin Barros ed.), Ashgate, 2010. Penalver's abstract:
Commentators have often characterized Hernando de Soto's advocacy of formalization of title for landless squatters as right-wing. And de Soto seems to understand himself as an advocate of individual property rights and free markets. But his analysis of informality and redistribution has a subtext with potentially progressive implications. Although de Soto sometimes reflexively attributes informality to overregulation, informality can always also be characterized as the consequence of being too poor to afford regulated goods. Indeed, for any particular regulation that puts the regulated good out of reach of the poor, we can either attribute this consequence to the cost of the regulation or to the consequences of a distribution of wealth that makes the regulated good unaffordable to those at the bottom. Thus, if the regulation is a good one, its effect on price, and therefore on informality, may argue in favor of keeping the regulation but redistributing purchasing power to blunt its pernicious impact on informality. What we need is a way of evaluating regulations that goes beyond merely observing their impact on the cost of goods and, indirectly, on the prevalence of informality. Specifically, we need to be able to evaluate four different possibilities: (1) regulation with redistribution to offset the impact of the regulation on the poor; (2) regulation without redistribution with its attendant increase in informality; (3) redistribution without regulation; and (4) no redistribution and no regulation. Choosing among these options is the domain of applied political theory. The choice is a far more complicated and demanding task than merely observing that regulation without redistribution increases informality.
All of the contributions to the 2010 Barros-edited volume on DeSoto are extremely interesting and thought-provoking. Penalver's essay, just now posted on SSRN, pushes us to consider the property theory beyond the traditional political characterizations of DeSoto's ideas.
Field Report: The Ahupua'a of Hawaii
I am writing this blog post from lovely Kona on the island of Hawaii, where I am in town for the next week for the wedding of two good friends. And, as luck would have it, I happened upon an interesting land use topic on my first full day here. The National Historic Park Pu`uhonua O Hōnaunau, also known as Place of Refuge, was a designate piece of land where law breaking civilians, or warrior during times of war, could come and seek protection from the penalty of death.
The park, which also include royal grounds adjoining the Place of Refuge, crosses over three Ahupua‘a, traditional Hawaiian land divisions that run in narrow pie-shaped tracts from the ocean to the mountains. A number of these separate tracts would be under the control of an individual chief, and each Ahupua’a was ruled by a designated subordinate. The boundaries of the Ahupua’a were shaped by streams or other natural features. Each Ahupua’a was designed to be a self-contained area, which provided access to the sea for fishing and salt, to arable land for crops, and to the forests and mountains for resources. The sizes of Ahupua’a would vary to ensure provision of adequate resources, resulting in wider tracts in less plentiful areas.
The Ahupua’a were largely split through land redistribution in the nineteenth century, but some remained intact under private ownership for some time. In addition to being a system of land division, the Ahupua’a provided for cooperative use of the land and an emphasis on carefully protecting resources needed for survival. Some contemporary groups are seeking to retrieve elements of the Ahupua’a system in the interests of sustainability and localism.
According to a Park Ranger I spoke with, it is believed that the Ahupua’a system was derived from Polynesian methods of land and social division. I have heard of similar methods of dividing land into narrow tracts providing access to a range of resources in places including parts of Guyana and West Africa.