Tuesday, December 14, 2010
In the mail this morning, I received a copy of Integrating Spaces: Property Law & Race (Aspen, 2011), by Alfred Brophy (North Carolina), Alberto Lopez (Northern Kentucky), and Kali Murray (Marquette). Here is the description:
Integrating Spaces: Property Law and Race enables you to seamlessly integrate historical and contemporary issues of race and ethnicity into your Property syllabus alongside your casebook. With historical perspective and doctrinal analysis, it maps the directions in which property law has turned in response to issues of race and ethnicity, and demonstrates how racial and ethnic categories continue to affect contemporary property law.
Integrating Spaces: Property Law and Race provides a dynamic social, historical, and doctrinal context for teaching property law:
- nearly 30 new and provocative cases—including the Supreme Court decision in Oyama v. California (alien land laws) and state court and federal court decisions in Trueheart v. Parker and Morison v. Rawlinson (race nuisance cases involving a jazz club and an African American church)
- extensive treatment of Federal civil rights statutes and their implications for environmental justice and the housing and financial crisis
- a close look at the efficacy of traditional property concepts as solutions to minority or cultural requirements—such as easements by prescription for Native American religious uses (United States v. Platt), Native Hawaiian access to sacred sites and beaches ( PASH), and the impact of partition land sales on African-American farmers and indigenous communities
- consideration of an international perspective, including cases on land redistribution in South Africa, cultural property in Australia, and restitution in post-conflict Bosnia and Herzegovina and Guatemala
- legal context and appropriate pedagogy from statutes, excerpted law review articles, and questions for discussion in the notes
- Teacher's Manual that provides additional questions and suggestions for linking the cases to coverage in traditional casebooks
Timely and relevant, Integrating Spaces: Property Law and Race brings a whole new dimension to your Property course. If you’re looking to refresh your teaching experience, challenge your students, or fuel class discussion, order a complimentary copy of Integrating Spaces: Property Law and Race.
A terrific resource!
Wednesday, December 8, 2010
Richard A. Epstein (NYU, Chicago, and Stanford--Hoover Institution) has posted Playing by Different Rules? Property Rights in Land and Water, from EVOLUTION OF PROPERTY RIGHTS RELATED TO LAND AND NATURAL RESOURCES, Lincoln Institute, 2010. The abstract:
This article examines both the similarities and differences between the law of land and water in both a private law and constitutional law setting. The first critical difference is that the nature of the two resources differs enough such that exclusive rights for occupation usually sets the right framework for analyzing land use disputes, while a system of shared, correlative duties work best for water. Once these baselines are established, it follows that an accurate rendition of the constitutional law issues necessarily rests on the proper articulation of private law rules of adjudication. Unless those efficient private rules are used as a baseline for constitutional adjudication, it becomes impossible to explain which government actions result simply in a "mere" loss of economic value and which government actions generate losses that require compensation. Parties can engage in wasteful political arbitrage without limitation.
In dealing with the private law issues, the first step is to develop principles of parity between private claimants, to the extent that this approach is physically possible. The second step then picks the set of rules that maximizes the overall utility of all parties concerned, subject to the parity constraint. This system must yield to reasonableness considerations when the conditions of physical parity cannot be satisfied, which covers all cases of dispute between upper and lower owners of land, as well as upstream and downstream riparians. In both these settings, the objective is to create, whenever possible, rules that treat the last element of loss to one party equal to the last element of gain of the next.
Using these natural law baselines produces by and large efficient results in private disputes. The rejection of these rules in the takings context in both land and water cases yields the opposite result, by conceding far too much power to state authorities in both land and water cases. It is no mistake that the modern law of regulatory takings for land, as developed in the 1978 Penn Central case, explicitly rests on the same intellectual confusions about property rights and economic losses that underlie the 1944 Willow River case, dealing with water rights. The only rationalization of both areas of law requires that the constitutional protection of private property start with the definitions of private property that have worked so well in practice under the natural law traditions of private law.
Patricia Salkin will publish a bibliography of all land use articles from 2010 in the Zoning and Planning Law Handbook for 2011:
This is a great service for all of us, so help her out, and make sure you get credit for your work! You can click below to expand this blog entry, where I've pasted the draft list, and scroll down to make sure you're not being left out! Or, you should be able to open the .pdf file here: Download Prof Salkin 2010 LU Bilbiography draft.
Sunday, December 5, 2010
From Patricia E. Salkin (Albany) and John R. Nolon (Pace) comes news of their new book, Climate Change and Sustainable Development Law in a Nutshell. The synopsis:
This new Nutshell comprehensively explores international, federal, state, and local laws and policies regarding sustainable development and climate change management. It traces the historical development of sustainable development and climate change law, showing that they appeared on the world stage at the same time and illustrating how they can be best understood, implemented, and practiced as a single body of law and policy.
The book illustrates the initiatives taken by all levels of government to achieve sustainable development, showing how these initiatives provide important opportunities to manage, mitigate, and adapt to climate change. The Nutshell explains how the U.S. legal system, particularly its reliance on the land use authority of local governments, fosters greenhouse gas reduction, energy conservation, and sustainable patterns of growth, including energy-efficient and sustainable buildings, the use of renewable energy resources, the protection of sequestering open space, and the adaptation of buildings and communities to sea level rise and natural disasters.
Climate Change and Sustainable Development Law in a Nutshell provides the international and national context for this bottom up approach. It illustrates how national and state governments can motivate 40,000 local governments in the U.S. to use existing authority and to adapt effective local initiatives already in place to both mitigate and adapt to climate change. This is presented as a complement to other international and national strategies for climate change management.
As one of dozens of examples, the Nutshell explains that local governments in most states are charged with enforcing the energy construction code and that, in many states, they have the power to enhance that code to achieve at least 30% greater efficiency in newly constructed and substantially renovated buildings. The building industry will provide millions of new homes and billions of square feet of nonresidential buildings to keep pace with our increasing population. Buildings consume the lion's share of all electricity generated and are responsible for over a third of carbon dioxide emissions. Some predict that two-thirds of the buildings in existence at mid-century will be built between now and then. The new International Green Construction Code, issued by the International Codes Council, contains techniques for extending this energy saving strategy to existing buildings.
The Nutshell also explains how localities can reduce their carbon footprint through transit oriented development and promoting renewable energy strategies, both of which depend on local planning and land use regulation. While grander schemes are stuck for the time at the federal and international level, researchers struggle to keep up with the task of identifying and analyzing progress of this sort on the ground.
The Nutshell covers the Rio Accords, the Istanbul Declaration on Human Settlements, the Johannesburg World Summit on Sustainable Development, and the 2005 and 2010 Millennium Ecosystem Assessment reports. These illustrate that the devolution of some legal authority to attack the full range of problems that hinder sustainable development is built into international agreements and the law of other nations. The book notes that the IPCC is considering including chapters on Human Settlements and Infrastructure in the Fifth Assessment Report.
Sounds great. Law professors can receive comp copies of the nutshell by calling 1-800-313-9378.
Sunday, November 14, 2010
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.
Saturday, November 6, 2010
Prof. Salkin writes with the following announcement, with an opportunity to have articles published in 2010 included in the Zoning and Planning Law Handbook:
A great opportunity to get a second audience for an article that you've published this year. A lot of really good land use scholarship has come out this year, and I encourage you to consider sending your 2010 articles to Prof. Salkin.
Wednesday, November 3, 2010
Speaking of Carol Rose, she has posted a new article called Ostrom and the Lawyers: The Impact of Governing the Commons on the American Legal Academy, forthcoming in International Journal of the Commons. The abstract:
American legal academics began to cite Elinor Ostrom’s Governing the Commons (GC) shortly after its 1990 publication, with citations peaking in the mid 2000s and with signs of a new peak in 2010 in the wake of Ostrom’s Nobel Prize in Economics. The legal scholars most interested in GC have worked in three areas: general property theory, environmental and natural resource law, and since the mid 1990s, intellectual property. In all those areas legal scholars have found GC and its many examples a strong source of support for the proposition that people can cooperate to overcome common pool resource issues, managing resources through informal norms rather than either individual property or coercive government. Legal academics have also been at least mildly critical of GC as well, however. A number have tried to balance the attractive features of GC’s governance model-stability and sustainability-with more standard legal models favoring toward open markets, fluid change and egalitarianism.
Thursday, September 2, 2010
Last weekend we saw a TV rerun of the 1985 classic Back to the Future. I was reminded of something that didn't occur to me until many years after I saw it for the first time, which is that it is, subtly, an excellent land use movie. Christopher Leinberger observed this in the opening pages of his terrific book The Option of Urbanism: Investing in a New American Dream. From the intro:
When I teach a graduate real estate seminar, the first homework I give to the students is watching the 1985 movie Back to the Future. The film reflects most of the fundamental changes in how America has been built over the last sixty years.
Specifically, in 1985 suburban "Hill Valley," the old downtown is dead. The public square is deserted at all hours except for the homeless; once-thriving establishments have been replaced by adult businesses; and the clock hasn't been fixed in thirty years. The new (1980s) mall at the outskirts of town now has all the action, accessible only by car (including time-machine car, or terrorist van!).
When Michael J. Fox's character Marty McFly goes "back in time" to 1955 HIll Valley, he finds a vibrant downtown, where everyone walks around for work and shopping, teens go to the malt shop and the movie theater, and small businesses abound. Sacred, safe, and busy, perhaps? Back to Leinberger:
The two Hill Valleys show the only two viable divergent options we have in how to build our metropolitan built environment--which consists of the houses, roads, water and sewer lines, police and fire stations, office buildings, shops, factories, parks, and everything else that makes up where most Americans live, work, and play.
Leinberger goes on to label the 1955 version as "walkable urbanism," and proceeds from there. The Option of Urbanism has been one of the most insightful books I've read recently, and of course if you're looking for a Labor Day Weekend movie that deals with land use, you'll find Back to the Future worth a fresh look.
Now, this kind of goes downhill at the end of the movie when, in the sequel set-up, Doc goes thirty years forward and then returns in a flying car fueled by household garbage. So we can expect that in 2015?
With that, is it possible that those of us who are interested in new urbanism can now be more sympathetic with George McFly's botched pickup line: "you . . . are my . . . density!"
Wednesday, August 11, 2010
Planner Jerry Weitz is leaving Georgia to become a professor and director of the new planning program at East Carolina University. According to Jerry, the program is in "the urban and regional planning program in the department of geography at East Carolina University (ECU) in Greenville, NC. The program has an accredited bachelor’s degree in urban and regional planning (since 1974) and a master’s degree in geography with a planning concentration. Plans are to establish an accredited master of planning degree in the next 1-5 years. ECU is the third largest and fastest growing university in NC, with 28,000 students."
This is a great move for Jerry, who has long been one of the leading planners in the Southeast and in the nation. Some of you may know Jerry from his book Sprawl Busting: State Programs to Guide Growth or his other scholarship.
Jamie Baker Roskie
Wednesday, July 14, 2010
Charles M. Haar (Harvard) and Michael Allan Wolf (Florida) have posted Planning and Law: Shaping the Legal Environment of Land Development and Preservation, published in Environmental Law Reporter, Vol. 40, No. 4, pp. 10419-10431, 2010. The abstract:
Wednesday, June 16, 2010
Michael C. Blumm (Lewis & Clark) has posted Present at the Creation: The 1910 Big Burn and the Formative Days of the U.S. Forest Service, a review of Timothy Egan's The Big Burn: Teddy Roosevelt and the Fire that Saved America. Blumm's abstract:
This review of Timothy's Egan's 2009 book, "The Big Burn: Teddy Roosevelt & the Fire That Saved America," lauds Egan's storytelling while questioning the title of his book. Egan tells a gripping tale about the largest wildfire in North America, a 1910 blaze in the Bitterroot Mountains along the largely unroaded Idaho-Montana border that cost a hundred people their lives and burned an area fifty percent larger than Yellowstone National Park. Egan claims that the big wildfire secured the young U.S. Forest Service's role as a public land manager and established conservation as a politically viable policy that encouraged Theodore Roosevelt to attempt to recapture the presidency in 1912. However, at the center of Egan's story is not Roosevelt, but Gifford Pinchot, whom Roosevelt appointed the first chief of the Forest Service in 1905. Pinchot convinced Roosevelt to preserve more public land (outside of Alaska) than any president before or since, and he made the Forest Service into one of the most respected government agencies in twentieth century America. But the Big Burn's legacy also led Pinchot's successors to give priority to fighting public land wildlifes, which damaged the ecology and, ironically, led to larger wildfires. The review suggests that the Pinchot-Roosevelt conservation era produced more public support for environmental protection than ever in American history, and that the political lessons of that era may be useful in a twenty-first century challenged by catastrophic oil spills and global climate change.
Thursday, April 8, 2010
George Lefcoe (Southern California) has published Jeff Benedict's Little Pink House: The Back Story of the Kelo Case, reviewing Benedict's book on the Kelo saga. The abstract:
Little Pink House is a fast paced account by Jeff Benedict of the events surrounding the 2005 U.S. Supreme Court decision in Kelo v. City of New London. Along with tracking Benedict’s story line, this review also highlights some of the core legal and policy issues that are an important part of the story for law-trained readers. At the core of the tale is how Kelo and a handful of her neighbors challenged the New London Development Corporation’s (NLDC) use of eminent domain for the economic redevelopment of the Fort Trumbull neighborhood. A libertarian-inspired public interest law firm named the Institute for Justice (IJ) agreed to represent the beleaguered property owners.
The paper copy of the review also includes some great aerial photos of the land at issue. From the conclusion:
Who would have imagined that a book about an eminent domain case could be an irresistible read? Benedict is a great storyteller who takes us behind the scenes in a series of pitched legal battles. He does not allow his IJ-tilted spin to spoil the fun. Little Pink House is chock full of delicious anecdotes, heated encounters, even a touching love story.
Sounds like a good summer read!
Sunday, March 28, 2010
Nicole Stelle Garnett (Notre Dame), author of the recently-released Ordering the City: Land Use, Policing, and the Restoration of Urban America (Yale U. Press, 2010), has posted three new papers to SSRN this month. The first, Unbundling Homeownership: Regional Reforms from the Inside Out, is forthcoming in the Yale Law Journal. The abstract:
Two vexing puzzles plague American land use regulators. The first puzzle is how to protect property owners from harmful spillovers without unduly stifling land use diversity. The dominant forms of land use regulation in the United States - zoning and private covenants - rely on ex ante prohibitions. Yet, since local governments and private developers rarely can calibrate the level of regulation to residents’ true preferences, the costs imposed by these regulations tend to exceed the benefits of actual harm prevention. The result is the over-protection of property owners and, and, many would argue, a monotonous, sterile, inefficient, and inconvenient suburban landscape. The second puzzle is how to address the intrametropolitan inequalities resulting from the fragmented distribution of regulatory authority without undercutting the beneficial effects of inter-jurisdictional competition. While this puzzle extends beyond property law, land use regulations are particularly problematic because they empower local jurisdictions to exclude unwanted residents. The difficulty is, however, that most proposed strategies to address this second puzzle threaten to undermine the efficiency gains that are produced when, as Charles Tiebout influentially predicted, local governments compete with one another for residents. By treating these two land use puzzles as property-entitlement problems, rather than regulatory-design problems, The Unbounded Home breaks free from standard land-use and local-government debates and offers novel solutions to address seemingly intractable difficulties. This review focuses on the two of Fennell’s proposals that, in my view, hold the most promise: First, the use of “entitlements subject to self-made options” or “ESSMOs”, to address local land use spillovers; and second, the reconfiguration of home-ownership to minimize owners’ incentives to demand that exclusionary land use policies.
Garnett's second article, coauthored with Margaret F. Brinig (Notre Dame), is Catholic Schools and Broken Windows. The abstract:
This paper represents the second stage of an effort to test previously unstudied implications of a dramatic shift in the American educational landscape, namely, the rapid disappearance of Catholic schools from urban neighborhoods. In a previous study, we used data from the Project on Human Development in Chicago Neighborhoods to measure how Catholic school closures affected perceived levels of disorder and social cohesion in Chicago neighborhoods. In this paper, we use data provided by the Chicago Police Department to test two related hypotheses about the effects of Catholic school closures on violent crime rates. The first is that Catholic school closures will lead, in relatively short order, to increased crime in a neighborhood. The second is that that crime will increase most dramatically in those police beats where previous school closures led to elevated levels of physical and social disorder and suppressed levels of social cohesion in 1995. We find that Catholic school closures are linked to increase in violent crimes, and that the most significant increases occur in police beats with the highest levels of school-closure-related disorder and -suppressed social cohesion in 1995.
Our study contributes in unique ways to two critical legal-policy debates about policing and education policy. First, and most significantly, our data provides a novel means of testing the broken windows hypothesis. We know, from our previous investigation, where school closures have elevated disorder and suppressed social cohesion, and, using a 3SLS analysis to solve simultaneous equations, we are able to link these findings with subsequent elevated levels of serious crimes. These findings suggest a connection between disorder and serious crime, even if not the direct one posited by Wilson and Kelling. Second, the study contributes new and important evidence to debates about school choice, especially in light of the very real possibility that urban Catholic schools will continue to disappear unless new sources of tuition assistance become available to the students that they serve.
Finally, Garnett has posted Order-Maintenance Agenda as Land Use Policy, forthcoming in the Notre Dame Journal of Law, Ethics, and Public Policy. The abstract:
Debates about the broken windows hypothesis focus almost exclusively on whether the order-maintenance agenda represents wise criminal law policy — specifically on whether, when, and at what cost, order-maintenance policing techniques reduce serious crime. These questions are important, but incomplete. This Essay, which was solicited for a symposium on urban-development policy, considers potential benefits of order-maintenance policies other than crime-reduction, especially reducing the fear of crime. The Broken Windows essay itself urged that attention to disorder was important not just because disorder was a precursor to more serious crime, but also because disorder undermined residents’ sense of security. The later scholarly explications of the broken windows hypothesis also emphasize the connection between restoring the perception of security and its reality. One reason that social norms scholars link disorder and crime is that disorder has a predictable effect on law-abiding citizens: those with financial resources move away from, or choose not to move into, disorderly neighborhoods; those without resources remain inside and avoid public places. Even if these reactions (somewhat surprisingly) do not lead to more crime in a community, they certainly disadvantage city neighborhoods vis-à-vis their suburban alternatives. Moreover, and importantly, the goals of reducing crime and of helping poor, inner-city residents feel better about, and more vested in, their communities are not necessarily coterminous; order-maintenance policies might achieve the latter without achieving the former. In other words, it might be the case that order-maintenance policies “work” even if they do not curb serious crime.
These articles relate to Prof. Garnett's important work set forth in Ordering the City. You may also be interested in a recent series of posts on Prawfsblawg on Ordering the City, with contributions from Ben Barros, Tracey Meares, Chris Serkin, Lee Fennell, Stephen Clowney, and Michele Wilde Anderson.
Saturday, March 6, 2010
Today is the 174th anniversary of the fall of The Alamo on March 6, 1836 during the Texas Revolution. As the story goes, the vastly outnumbered Texian forces under siege bought crucial time for the rest of the army by holding out for two weeks until succumbing to the Mexican army under General Antonio Lopez de Santa Anna. Cries of "Remember the Alamo" supposedly motivated the Texians at the decisive Battle of San Jacinto.
It would be hard to exaggerate the importance of The Alamo to the founding narrative and historical memory of Texas. Though it was once a Catholic mission, it is secular "sacred ground" to many Texans. I know people who proposed to their spouses at the Alamo. Yet the Alamo has also been seen as symbol of racial or ethnocentric overtones to the Texas Revolution. The importance of the Alamo-as-land has played out in several land use controversies over the last two centuries.
An excellent book that reviews the history of both The Alamo and its place in cultural memory is Randy Roberts & James S. Olson, A Line in the Sand: The Alamo in Blood and Memory (2002). The authors begin with the history of the Alamo itself and the battle, and then spend the remainder of the book talking about what happened to it both as a piece of land and as an icon. Apparently it fell into disrepair (blight?) for decades after Texas independence as the city of San Antonio grew up around it (those who imagine it from the John Wayne movie, way out in the open, are often startled when they finally visit it in busy downtown San Antonio). Then, in the late 19th and early 20th centuries, the Alamo became increasingly the subject of myth-making. This in turn inspired one of the early historic preservation efforts, through a private organization run by some of the most prominent women in Texas. There was a dispute over whether the preservation should be as a private or a public landmark. The book tells this interesting story plus relates a number of other controversies about the Alamo as a symbol of Anglo-American manifest destiny and as John Wayne's vision of the Alamo as a Cold War story.
The book's title invokes both the "line in the sand" supposedly drawn by Lt. Col. Travis when it became clear the Texians were doomed, and also as a metaphor for the cultural contests over the historical memory of the Alamo as symbol. But the "sand" itself remains a hugely popular tourist site and public space in San Antonio.
Monday, January 18, 2010
Want to be green? Dump the cul-de-sac. Ban the mall. Leave the Prius at home. The best thing you can do for the environment is to push for dense, compact, attractive and walkable urban neighborhoods that mix homes, shops and offices, just like we used to.
That, in a sharpened nutshell, is the message delivered by The Smart Growth Manual (McGraw-Hill Professional, $24.95), an intentionally slim, readable, well-illustrated and portable how-to guide co-written by Miami architect, planner and pioneering anti-sprawl combatant Andrés Duany.
The book is a follow-up of sorts to their seminal new urbanist text Suburban Nation: The Rise of Sprawl and the Decline of the American Dream (Duany, Plater-Zyberk, & Speck 2001). Of course Miami 21 is highly relevant and gets mentioned in the article. Aside from the substantive contribution that this book will make, I was particularly interested in this snippet from the Herald piece:
Q: Why do you use `Smart Growth' and not `New Urbanist' in the title? Is there a difference between the two?
A: Smart Growth has always been the more popular title. It's not correct. Smart growth is government-initiated. New Urbanist is market-initiated. Smart Growth is almost entirely New Urbanist propositions but repackaged with a more effective name. But the book is balanced (between the two).
Friday, January 15, 2010
Eduardo M. Penalver (Cornell) and Sonia Katyal (Fordham) have posted on SSRN the front matter and introduction to their new book, Property Outlaws: How Squatters, Pirates, and Protesters Improve the Law of Ownership (Yale University Press, 2010). Click on the picture for a link to the book on Amazon; here is the abstract to the SSRN posting:
Property Outlaws puts forth the intriguingly counterintuitive proposition that, in the case of both tangible and intellectual property law, disobedience can often lead to an improvement in legal regulation. The authors argue that in property law there is a tension between the competing demands of stability and dynamism, but its tendency is to become static and fall out of step with the needs of society.
The authors employ wide-ranging examples of the behaviors of “property outlaws” - the trespasser, squatter, pirate, or file-sharer-to show how specific behaviors have induced legal innovation. They also delineate the similarities between the actions of property outlaws in the spheres of tangible and intellectual property. An important conclusion of the book is that a dynamic between the activities of “property outlaws” and legal innovation should be cultivated in order to maintain this avenue of legal reform.
Thursday, December 10, 2009
Amnon Lehavi (Interdisciplinary Center Herzliyah - Radzyner School of Law) has posted another interesting-looking article, a review essay of Lee Anne Fennell's The Unbounded Home: Property Values Beyond Property Lines (Yale U. Press, 2009). Lehavi's piece is titled Is Law Unbounded? Property Rights and Control of Social Groupings, forthcoming in Law & Social Inquiry, 2010. The abstract:
This review essay follows up on a suggested model for resolving problems of neighborhood externalities and exclusionary associational patterns in today's metropolitan areas through a property rights regime of "alienable entitlements," as articulated by Lee Anne Fennell in The Unbounded Home (2009). The essay frames the model as promoting a groundbreaking approach to the fundamental quandary over the role of law as a tool for broad-based social change, which has been at the center of the law and society literature.
The essay asks if legal rules can fully absorb the multiple types of societal effects that influence the nature of contemporary homeownership. It then assesses more pointedly the normative desirability of controlling metropolitan-wide social exclusion through alienable property entitlements, identifying an internal tension between Fennell's support for a market-like process and her pursuit of an objective ideal that impacts the analysis. The essay concludes by suggesting that even if one accepts the tentative blueprint for addressing social engineering issues through alienable legal entitlements, it is unclear if such an approach would practically change the ways in which the social dynamics of groupings and exclusion currently take place.
This analysis aims at offering broader insights for socio-legal inquiries beyond the above particular themes of examination. Its central arguments are not limited to a certain ideological perspective - be it the promotion of social justice or of utilitarianism - or to a particular type of social concern. The essay aspires to broadly illuminate the complex ties between law and social studies, and the boundaries of law in controlling social conduct.
Friday, November 20, 2009
Theodore Dalrymple has an article in City Journal called The Architect as Totalitarian: Le Corbusier’s baleful influence. From the intro:
Le Corbusier was to architecture what Pol Pot was to social reform.
Wow! There's something to be said for telling the reader where you stand. More:
Unfortunately, he turned his gifts to destructive ends, and it is no coincidence that he willingly served both Stalin and Vichy. Like Pol Pot, he wanted to start from Year Zero: before me, nothing; after me, everything. By their very presence, the raw-concrete-clad rectangular towers that obsessed him canceled out centuries of architecture. Hardly any town or city in Britain (to take just one nation) has not had its composition wrecked by architects and planners inspired by his ideas.
Dalrymple reviews several recent book about Le Corbusier, an exhibition in London and Rotterdam, and some of Le Corbusier's own writings, including The Radiant City. It's an interesting read.
Le Corbusier was an architect whose vision had broad implications for urban land use planning. As Dalrymple says, he had a plan for Paris that "if carried out, the plan would have changed, dominated, and, in my view, destroyed the appearance of the entire city." His "Radiant City" was one of the major utopian approaches to planning from the first half of the 20th Century, along with Ebenezer Howard's Garden City, and the City Beautiful movement associated with Daniel Burnham and the World's Fair approach. Will Cook, who has posted on Jane Jacobs' Death and Life of Great American Cities, must surely have come across one of my favorite Jacobs lines, her characterization of all of these utopian ideals together as the "Radiant Garden City Beautiful."
All of these utopian ideas for city design and land use were well-intentioned but would probably not incorporate the same priorities and preferences that we might have today. Does that cast any doubt on the viability of contemporary comprehensive ideas and designs for land use planning?
Wednesday, November 11, 2009
A very happy Veterans Day to all, with thanks to those who have served. In honor of the day, here are a few desultory land use issues involving military veterans.
The idea of rewarding veterans for their service with grants of land is an ancient one. I suspect it goes back at least to ancient Rome, and probably before. Cincinnatus and all that. It makes a lot of sense, historically, where cash-poor governments asking for or requiring military service have traditionally had one major asset to distribute: sovereign domain over land. Part of this historical generosity is certainly due to gratitude for service, and part of it must also be the social concern over standing armies in peacetime.
After the Revolutionary War, the thirteen states and the Continental Congress had two major issues: (1) crippling debt from financing the war; and (2) a whole lot of land that was largely unsettled (by Anglo-Americans, that is) and unregulated--the territory from the Appalachian Proclamation of 1763 line to the Mississippi. The solution? First, get the states to cede their western claims to the national government. After the Virginia Cession in 1784, Congress set about making a plan for the western lands. The 1785 Land Ordinance and the 1787 Northwest Ordinance did not mention veterans specifically, but they were part of the larger federal program designed to distribute and regulate the western territories with the notion of state land grants to Revolutionary War veterans in mind. [I have a work in progress on the Northwest Ordinance and property rights]. For you property law fans, the ensuing government survey of the lands was part of what originated the political/geographic establishment of counties and townships across the western states.
So government policy has long favored helping veterans obtain land. Harold Hyman wrote a really interesting book tracing the effects of this policy preference in the wake of major wars in American Singularity: The 1787 Northwest Ordinance, the 1862 Homestead and Morrill Acts, and the 1944 G.I. Bill.
The Department of Veterans Affairs has a home loan guaranty program that allows qualified veterans to secure mortgage loans at favorable rates. This has been around for a while. Along with FHA loans, the VA loan program was instrumental in moving millions of veterans into single-family houses.
The entire story of post-WWII suburban development is in large part a story about how to give veterans--who survived both the War and the Depression--a piece of the American Dream (and also about what to do with and where to put the 8+ million men and women suddenly out of uniform and getting to work on the Baby Boom). The designers of Levittown(s) were mass-producing single-family suburban homes in large part because of the market imperative of housing returning veterans.
At the state level, many states have additional programs that supplement the VA's federal benefits to veterans with respect to land- or home-ownership. Texas, for example, has the Veterans Land Board, which is under the Texas General Land Office. The Veterans Land Board has a number of loan programs with favorable terms for qualified veterans. On November 3, 2009, Texas voters approved Proposition 6, a state constitutional amendment to allow the Veterans Land Board to issue general obligation bonds to finance these programs.
It's a credit to state and federal governments that we have these policies to reward those who have served. The legitimate critical questions we should ask are whether these are the right policies to express that gratitude to veterans. Like other government land use policies--such as Euclidean zoning, highway construction, tax breaks on mortgages--land programs for veterans have favored the single-family suburban lifestyle and have subsidized sprawl. As Chad Emerson has blogged here, these policies seem to be continued in the federal government's responses to the economic crisis. Can policy that favors veterans for their service be modified to mitigate today's land use problems?
Thanks again to all who have served.
Wednesday, October 28, 2009
I've been reading the really excellent new book Building Healthy Communities: A Guide to Community Economic Development for Advocates, Lawyers and Policymakers edited by Roger A. Clay, Jr. and Susan R. Jones. Here's the blurb from the ABA website:
This book provides an excellent short history of the CED movement along with some very current perspectives on the current lending crisis and its particular dangers for lower income communities and communities of color. Here's a compelling quote from Chapter 2 "Perspectives on CED in a Global Economy" by john a. powell and Jason Reece:
Given the significance of the credit and foreclosure crisis, we must be diligent to ensure that communities of color are not left out or harmed by the response. Will local strategies to rehabilitate vacant property...produce too much low-income housing, reinforcing concentrated poverty? Will property clearance...result in a 21st-century example of urban renewal, permanently ripping the social fabric of communities of color? Will credit market reforms essentially dry up credit options...while providing no sustainable alternative forms of credit? In light of the crisis, attacks on several targeted policies that benefit communities of color are a chilling preview of what may come...the Community Reinvestment Act (CRA) ha[s] already come under attack...These attacks persist, despite clear contradictory evidence. First time homebuyers were clearly not the cause of the credit crisis; more than half of subprime loans were refinance loans, and only 9 percent of subprime loans went to first-time home buyers...Studies have shown that the CRA has been successful at expanding minority homeownership through fair and sustainable loans.
I'm looking forward to reading more about topics like community benefits agreements, the effect of Kelo on CED, and economic development and environmental justice.
Jamie Baker Roskie