Friday, October 5, 2012

Fennell on Resource Access Costs

Lee Anne Fennell (Chicago) is reconceptualizing transaction costs in property as Resource Access Costs, forthcoming in the Harvard Law Review.  The abstract:

The Coasean insight that transaction costs stand between the world as we know it and an ideal of perfect efficiency has provided generations of law and economics scholars with an analytic north star. But for legal scholars interested in the efficiency implications of property arrangements, transaction costs turn out to constitute an unhelpful category. Transaction costs are related to property rights in unstable and contested ways, and they comprise a heterogeneous set of impediments, not all of which are amenable to cost-effective reduction through law. Treating them as focal confuses the cause of our difficulties in structuring access to resources (positive transaction costs) with the solution to the cost minimization problem presented by a world featuring scarce resources and positive transaction costs. A broader notion of resource access costs, appropriately subdivided, can correct problems of overinclusion, underinclusion, and insufficient specification in the transaction cost concept. The resulting analytic clarity will allow property theorists to contribute more usefully to solving resource problems.

The concept of transaction costs in property theory plays a big role in land use planning and practice, so reconceptualizing it as "resource access costs" can potentially have a big impact on the way we understand the economics of land use.  Check out Fennell's latest must-read piece.

Matt Festa

October 5, 2012 in Property, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, October 4, 2012

Reiss on the Use of Eminent Domain to Restructure Mortgages

David J. Reiss (Brooklyn) has posted Comment on the Use of Eminent Domain to Restructure Performing Loans, which was submitted to the Federal Housing Finance Agency (No. 2012–N–11) (2012).  The abstract:

There has been a lot of fear-mongering by financial industry trade groups over the widespread use of eminent domain to restructure residential mortgages. While there may be legitimate business reasons to oppose its use, its inconsistency with Takings jurisprudence should not be one of them. To date, the federal government’s responses to the current crisis in the housing markets have been at cross purposes, half-hearted and self-defeating. So it is not surprising that local governments are attempting to fashion solutions to the problem with the tools at their disposal. Courts should, and likely will, give these democratically-implemented and constitutionally-sound solutions a wide berth as the ship of state tries to right itself after being swamped by a tidal wave of mortgage defaults.

A concise and thoughtful public comment on what is emerging as a hot, hot issue.

Matt Festa

October 4, 2012 in Constitutional Law, Eminent Domain, Finance, Housing, Local Government, Mortgage Crisis, Mortgages, Property Rights, Real Estate Transactions, Scholarship, State Government, Takings | Permalink | Comments (0) | TrackBack (0)

Osofsky on Suburban Climate Change Efforts

Hari M. Osofsky (Minnesota) has posted Suburban Climate Change Efforts: Possibilities for Small and Nimble Cities Participating in State, Regional, National, and International Networks, forthcoming in the Cornell Journal of Law & Public Policy.  The abstract:

This Article provides a novel analysis of the capacity of suburbs to play a constructive role in addressing climate change. Small suburban cities represent the majority of metropolitan populations and emissions; encouraging their mitigation efforts, in addition to those of large center cities, is critical. In contrast to the conventional critique of suburbs as an undifferentiated group of sprawling emitters, the Article analyzes pathways for different types of small, nimble, suburban governments to learn from other localities and find cost-effective approaches to reducing emissions. It intertwines scholarship on (1) cities, suburbs, and climate change, (2) the complex demography of suburbs, (3) the role of climate change networks in transnational governance, and (4) more inclusive multi-level climate change governance to describe the limits of the current discourse on suburbs and climate change and to propose a new model for encouraging more suburban action. Using the Twin Cities metropolitan region as an initial case example, the Article considers what steps different types of leader suburbs are taking and how they are participating in voluntary multi-level climate change and sustainability networks. It argues that, especially in the absence of top-down mandates requiring cities to mitigate their emissions, these voluntary networks play an important role in fostering local action and connecting that action to international climate change treaties. It proposes that these networks could have a greater impact, however, through strategies that reflect the differences among types of suburban cities and foster more cross-network interaction.

Matt Festa

October 4, 2012 in Climate, Environmental Law, Local Government, Scholarship, Suburbs, Sustainability | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 2, 2012

Ellickson on the Law and Economics of Street Layouts

Robert C. Ellickson (Yale) has posted The Law and Economics of Street Layouts: How a Grid Pattern Benefits a Downtown, forthcoming in the Alabama Law Review from its lecture series on boundaries.  The abstract:

People congregate in cities to improve their prospects for social and economic interactions. As Jane Jacobs recognized, the layout of streets in a city’s central business district can significantly affect individuals’ ability to obtain the agglomeration benefits that they seek. The costs and benefits of alternative street designs are capitalized into the value of abutting lots. A planner of a street layout, as a rule of thumb, should seek to maximize the market value of the private lots within the layout. By this criterion, the street grid characteristic of the downtowns of most U.S. cities is largely successful. Although a grid layout has aesthetic shortcomings, it helps those who frequent a downtown to orient themselves and move about. A grid also is conducive to the creation of rectangular lots, which are ideal for siting structures and minimizing disputes between abutting landowners. Major changes in street layouts, such as those accomplished by Baron Haussmann in Paris and Robert Moses in New York City, are unusual and typically occur in bursts. Surprisingly, the aftermath of a disaster that has destroyed much of a city is not a propitious occasion for the revamping of street locations.

Highly recommended, with lots of interesting planning-type details in addition to the larger importance to land use theories and approaches.

Matt Festa

October 2, 2012 in Aesthetic Regulation, Architecture, History, Housing, Lectures, Local Government, New York, Planning, Scholarship, Urbanism | Permalink | Comments (0) | TrackBack (0)

Monday, October 1, 2012

Blogging the Law School Clinic -- The Example of IdahoNEXT.com

I was intrigued by Michelle Bryan Mudd's recent post on the use of blogging in land use clinics.  This was in large part because I have just implemented a similar blog site with my clinic here at the University of Idaho, although to slightly different effect and purpose than the one operated by Prof. Mudd at Montana.

Here is how I came to use blogging in my clinic.  Last year, I started the Economic Development Clinic at the University of Idaho's Boise campus, which often entails substantial land use issues.  Most of my students come to the class with very little experience in land use or economic development theory, much less real world examples of successful strategies for achieving those ends.  As a result, I started a requirement last year that each student write a bi-weekly 250-word essay on an economic development tool that was of interest to the student.  They in turn shared this essay with the other students and presented the substance of the economic development tools used in our weekly class meetings.  I found the student essays remarkably well written, and the essays seemed to engage the students because the essays allowed the students to go beyond our specific clients and learn about the greater panoply of approaches out there that were in line with the students' interests.

This year, I decided that the essays were too good to keep internally.  With the students permission, I started a blog called Idaho NEXT, at www.idahonext.com, which focuses on economic development in Idaho and the surrounding region.  Essentially, what I have done is take the student essays from last year and put them in the digital age.  While I might be overselling it, I think the students love this approach.  It makes it feel more real to know that the "essays" are now "blog posts" and out there for all to see, not just their crusty professor and other students.  And moreover, in a place like Idaho that is not saturated by news media coverage, I believe that this site will eventually become of value to the community as a resource for new ideas.  I also believe that a social-media presence is an important skill for lawyers to perfect.  According to the most recent ABA report, 22 percent of lawyers now work in firms with a blog.  That means that the ability to communicate in the blogosphere in a professional manner that also does not jeopardize attorney-client relations is increasingly a part of being a practicing lawyer, and I believe, increasingly a necessary part of the training of lawyers.

Kudos to Prof. Mudd and her students for producing such an excellent website, and I hope to hear of more examples of clinics using blogs or websites soon!

Stephen R. Miller 

October 1, 2012 | Permalink | Comments (0) | TrackBack (0)