Monday, September 13, 2010
The Notre Dame Journal of Law, Ethics, & Public Policy has published a Symposium on Urban Development in the 21st Century: Notre Dame Journal of Law, Ethics & Public Policy, Volume 24, Number 1, 2010.
FOREWORD: A New Urban Vision for a New Urban Reality, Adolfo Carrión, Jr., p. 1
On Public Plaintiffs and Private Harms: The Standing of Municipalities in Climate Change, Firearms, and Financial Crisis Litigation, Raymond H. Brescia, p.7
Can Urban Solar Become a "Disruptive" Technology?: The Case for Solar Utilities, Joel B. Eisen, p.53
American Cities as Firms in the 21st Century—Or, Should Philadelphia Move to New Jersey? Richardson Dilworth, p.99
The Order-Maintenance Agenda as Land Use Policy, Nicole Stelle Garnett, p.131
Four Land Use Vignettes from Unzoned(?) Houston, John Mixon, p.159
An Urban Slice of Apple Pie: Rethinking Homeownership in U.S. Cities, Georgette Chapman Phillips, p.187
Justice and the Just Compensation Clause: A New Approach to Economic Development Takings, John T. Goodwin, p.219
Old Shtetlism and New Urbanism: Uncovering the Implications of Suburban Zoning Laws for Community Life through the Jewish-American Experience, Amir Steinhart, p.255
It looks like a fascinating group of pieces. Now if only they could beat Michigan.
September 13, 2010 in Community Economic Development, Development, Economic Development, Eminent Domain, Environmental Law, Housing, Houston, Local Government, Property, Scholarship, Takings, Urbanism, Zoning | Permalink | Comments (0) | TrackBack (0)
Thursday, August 19, 2010
THE UNIVERSITY OF IDAHO COLLEGE OF LAW seeks to fill an entry level, tenure-track faculty position beginning in the Fall of 2011 at its Boise, Idaho satellite campus contingent upon approval of the position by the University’s Board of Regents. The successful candidate will supervise a new Economic Development Clinical Program. This program will serve state and local governmental entities, tribal governments and non-profit organizations. The clinical program will focus on economic development particularly as it pertains to land use planning and other economic development needs of local governments. This new clinical program will collaborate with the existing small business legal clinic and low-income taxpayer clinic at the University of Idaho. It will also collaborate with other University of Idaho programs providing outreach to local governments in the area of economic development. Related non-clinic teaching assignments could also include State Constitutional Law and Legislation. Applicants must have a distinguished academic record and post J.D. practice, clerking and/or teaching experience, must show promise as excellent teachers and productive scholars. Candidates with prior clinical teaching experience and those with a demonstrated commitment to community economic development issues will be preferred.
The College of Law, which has the exclusive statewide mission in Idaho public legal education, is embarked upon an innovative expansion of its program from its home campus in Moscow (in the northern Idaho panhandle) to Boise, the state capital and a growing population and economic center of the state. As part of this expansion it has established a satellite campus in Boise, Idaho at which students may complete their third year of law school. The successful applicant for this position will be part of the Boise law program. In addition to clinical programs, the Boise program presently includes a curriculum focused on business and entrepreneurship a concurrent JD M.S in Acct. (Taxation Emphasis) with Boise State University, and the College’s Externship and Semester-in-Practice programs. A commitment to and experience relevant to assisting the College with the expansion of its Boise program will be favorably considered. Information about the College of Law is available on its website at http://www.law.uidaho.edu . Interested persons should either apply online at www.hr.uidaho.edu or send a letter of application and resume listing three references by regular mail or email to Professor and Associate Dean Elizabeth Brandt, Chair, Faculty Appointments Committee, University of Idaho College of Law, PO Box 442321, Moscow, Idaho 83844-2321, firstname.lastname@example.org .
The Committee will begin reviewing applications on September 15, 2010 and will continue until the position is filled. Priority will be given to applications received before November 1, 2010. The University of Idaho is an affirmative action, equal opportunity employer. The University has an institution-wide commitment to diversity, human rights, multiculturalism and community. It expresses that commitment by actively recruiting and retaining a diverse workforce and student body, and by building and sustaining a welcoming, supportive campus environment.
Jamie Baker Roskie
Tuesday, August 17, 2010
My first day of class is Friday, so I thought I'd sneak in one last summer-break-inspired post before getting down to business. On a flight to California last month my husband, Neal Anderson (Rolfer and architect-extraordinaire) sat next to ESPN soccer (er, football) writer Jeff Carlisle. Jeff had recently returned from covering the World Cup in South Africa and, among other topics, they discussed the possible post World Cup uses of all the soccer stadiums built around SA.
"It's not about whether they'll be used, it's whether they will be financially viable in terms of maintenance costs," said Phillip Harrison, a member of the South African government's National Planning Commission. "I think there is a legitimate concern about whether they'll bring in sufficient income given the fact that these areas are already financially stretched."
Officials in South Africa understand the potential risks they've brought upon themselves. They've seen abandoned Olympic venues blight Athens. They know that even Beijing has had trouble luring events to its infamous Bird's Nest stadium. But South Africa remains hopeful. For the host cities, these stadia are seen as springboards for development. But there's also the distinct danger that they could become unsustainable money pits. It's too soon to say which is the case today. But it will probably take only a few years to see if the cities are able to jump on those opportunities, or if they'll fall victim to their grandiose but potentially short-sighted World Cup investments.
Stadium projects are almost always controversial. Closer to home there's been a lot of media attention on the new stadium for an Atlanta Braves farm team in nearby Gwinnett County. It's interesting how the dynamic around stadiums seems so consistent from project to project. In a place like South Africa, with such historic inequity, it seems like a potentially more loaded problem, but the issues aren't so different in more affluent communities.
Jamie Baker Roskie
Monday, August 16, 2010
While a Blackstonian view of property envisaged a "despotic dominion" of an owner over a thing, property has never been so absolute. In fact, as I argue in this paper, the nature of property has been culturally constructed and property means different thinks across cultures and even over time within the same culture. The question of the nature of property was highlighted for me when a student questioned whether equity limitations placed on homes purchased by low income buyers using subsidized public financing created a "second class" form of homeownership.Matt Festa
In attempting to answer this question, I examined the ideas of property and ownership over various cultures and then concentrated on those ideas in the American cultural, legal and political history. After examining the various views of property in America, I examine the reality of property ownership and the restrictions on such ownership in today’s legal and political milieu. I conclude by suggesting that the equity restrictions associated with some publicly financed mortgages are not different in kind from other restrictions on property generally that are widely accepted in society. Finally, I suggest that a concept of property might be broadened to include the reasonable expectations of future potential users. Thus, a recognized principle such as stewardship might give property like entitlements to generations of low income persons who will be seeking decent affordable housing in the future.
Tuesday, August 3, 2010
With fewer and fewer Americans able to obtain a mortgage, more are turning toward rentals. Unfortunately, as this article shows, the stigma of rental units is so bad that it can undermine even what little development opportunity still exists in the current economic downturn.
The author asks two important questions (and follows with an astute observation):
[I]f city after city continues to shoot down economically viable rental housing projects, where exactly we are going to accommodate the expected growth in this country in the coming decades? Furthermore, why are cash-strapped cities passing up economic development opportunities? I’m all for local decision-making, but the result of these decisions, multiplied across our metro areas, simply pushes more growth to the urban fringe — an ecologically and economically wasteful choice.
Rather than treat rental units as some sort of plague (an oh-so-very retro-Euclid way of thinking), cities should consider how they can better regulate rental development in the new real estate paradigm that the Great Recession has brought. The option of "just saying no" to rentals neglects both the reality of the future need for non-mortgaged housing and the fallacy that rentals cannot be well done from a design and planning perspective.
--Chad Emerson, Faulkner U.
Thursday, May 27, 2010
Patricia Salkin (Albany) and Amy Lavine (Albany) have posted Community Benefits Agreements and Comprehensive Planning: Balancing Community Empowerment and the Police Power, forthcoming in the Journal of Law and Policy. The abstract:
Wednesday, May 26, 2010
This weekend is the always-excellent annual meeting of the Law & Society Association in Chicago. I haven't scoured the program, but there is sure to be a plethora of interesting panels and events. I do have firsthand knowledge, however, of one particular land-use panel that is guaranteed to present fascinating projects from interesting up-and-coming scholars.
Panel: Fri., May 28, 12:30-2:15
Chair: James J. Kelly, Jr. (University of Baltimore)
The Effects of SmartGrowth on the Preservation of Historic Resources, William J. Cook (Charleston School of Law)
Debtors' Environmental Impact: Structured Finance and the Suburbanization of Open Space, Heather Hughes (American University)
Sustainability and the Practice of Community Development, James J. Kelly, Jr. (University of Baltimore)
The Artifice of Local Growth Politics: At-Large Elections, Ballot Box Zoning, and Judicial Review of Land Use Initiatives, Kenneth Stahl (Chapman University)
May 26, 2010 in Charleston, Chicago, Community Economic Development, Conferences, Environmental Law, Finance, Financial Crisis, Historic Preservation, Local Government, Politics, Scholarship, Smart Growth, Suburbs, Sustainability | Permalink | Comments (0) | TrackBack (0)
Monday, May 24, 2010
Heather K. Way (Texas) has posted Informal Homeownership in the United States and the Law, from St. Louis University Public Law Review, Vol. 29, No. 1 (2009). The abstract:
Wednesday, May 19, 2010
This blog post is by guest blogger and UGA 3L (and recent Land Use Clinic alumna) Catherine Mattingly.
The Five Points area in Athens, Georgia is a small-scale mixed-use area in this historic college town. Restaurants, clothing stores, coffee shops, even a grocery store, are located along South Lumpkin, which is the main street of this historic area that takes its name from the five-way intersection at the corner of Lumpkin and Milledge. Next to this cluster of shops lie residential neighborhoods. The district is in theory the perfect place to park one’s car and spend the rest of the day running errands, meeting with friends, attending yoga class, etc. Because these stores are within walking distance of one another, there is really no reason to drive from place to place.
However, you may have noticed that I said “in theory.” Currently, parking in one place and spending the day shopping throughout Five Points isn’t possible. With the exception of a few informal parking agreements between neighboring store owners and a few spots lining Lumpkin Street (which only permit limited time parking), the general rule in the area is that a store patron must be parked in the lot of the respective business he or she is visiting. A frequent visitor to Five Points, I have been burdened by this rule many times. When my Land Use Professor Christian Turner spoke of this problem as a potential paper topic I jumped on board, wanting to learn more about a problem that has hindered the overall appeal of the area. While the solution of shared parking is simple, creating a successful strategy for an entire district that will be adaptable as businesses change over time can be extremely difficult. One must consider the current local ordinances and their restrictions on parking, the local Comprehensive Plan, the total number of spaces as well as potential for new spaces, peak hours for the varying businesses, and the general overall character of the area.
After researching shared parking generally, I emailed most of the store owners in Five Points asking for their thoughts on the matter. Overall, most of the owners and managers with whom I spoke supported shared parking, provided it supplied enough spots for their individual use. A few owners shared that they felt their business suffered at certain times of the day because there was simply no available parking. After interviewing these people, I looked for case studies of shared parking strategies that had already been implemented or studied throughout the country. I found that the primary consideration in the success of a shared parking strategy is whether there are different peak parking hours between stores. The significance behind this factor is that if businesses have varying busy hours, then there are likely spaces available at one nearby store when another is crowded. Therefore, by simply making agreements with other businesses to share spaces during certain times of the day, available spots can be increased without having to actually add any additional spaces. These private agreements can exist in the form of revocable licenses, or appurtenant easements or covenants could also be used.
While agreements such as those mentioned above can be achieved by simple agreements between business owners, a successful district-wide shared parking solution likely calls for control of all available parking by the city. To achieve this, I suggest creating an overlay district. This district would eliminate the need to follow any current parking restrictions in the Athens-Clarke County Code. In addition to adding additional limited-time parking in the area, a parking deck could also be constructed. Alternatively, a larger parking lot could be created by combining many of the smaller lots located behind the old homes that have been turned into local businesses. To give the city the right to control parking, each owner could deed his spaces to the city. Alternatively, a temporary lease agreement could be implemented, but this could hinder construction of permanent changes such as the large lot or deck. These parking options could be geared not just toward immediately neighboring business, but to patrons in the entire area.
In addition to providing additional available spaces to store patrons, shared parking has other benefits. Changing the character of parking in the area could help to change the nature of the district as a whole. For instance, the area would necessarily become more pedestrian-friendly, as visitors are expected to park their cars and walk throughout the district. The city could also take this opportunity to add more green space to the area. Thus, establishing shared parking would assist in making visiting the area not only more convenient, but also safer and more aesthetically pleasing. As space becomes an increasingly important commodity, older districts can retrofit their communities to increase the convenience and attractiveness of the area. Increased revenues will hopefully follow as patrons find these stores easier to visit.
Overall, in researching this issue, I have been reminded of how dynamic local land use issues such as parking truly are. Implementing shared parking will certainly be difficult, but the ability of the area to adapt to change could be crucial for its success, especially in its competition with downtown Athens.
First, I'd like to give props to my UGA colleague Christian Turner for having his Land Use Planning students work on practical projects in the doctrinal class. Second, having read and considered Catherine's paper I congratulate her on excellent work on applying land use concepts to a real, local problem. I shop at the stores and practice at the yoga studio she mentions, so I also struggle with the parking issues. However, I hadn't considered the lots behind the old houses retrofit as shops as a good joint parking lot, but it really is. I hope to promote Catherine's solution locally as a way to create a better pedestrian environment in what should be one of Athens' truly walkable neighborhoods.
Jamie Baker Roskie
Wednesday, May 12, 2010
We are delighted to introduce Professor James J. Kelly, Jr. as a guest blogger. Prof. Kelly is an Assistant Professor of Law and Director of the Community Development Clinic at the University of Baltimore School of Law. From his bio:
Prior to joining the faculty, Professor Kelly worked, as Executive Director of Save A Neighborhood, Inc. and Legal Consultant for Baltimore's Project 5000, to assist the City and community groups in acquiring clear title to vacant houses and vacant lots. He previously worked as a Staff Attorney for the Community Law Center, serving Baltimore nonprofits in their community revitalization efforts. Prior to moving to Baltimore in 1999, he also represented and counseled tenants and tenant groups for the Northern Manhattan Improvement Corp., where his work was funded by the Skadden Fellowship Foundation.
Tuesday, April 6, 2010
Nestor M. Davidson (Colorado) has posted Reconciling People and Place in Housing and Community Development Policy, Georgetown Journal on Poverty Law Policy, Vol. 16, No. 1, 2009. The abstract:
In housing and community development theory, scholars have long debated tensions between place-based policies and those that focus on fostering mobility. In practice, this is a false dichotomy and this essay explores ways in which place-based policies change the calculus of mobility, while mobility policies deeply shape both the communities people seek and those they leave behind.
Tuesday, March 9, 2010
Brian Glick (Fordham Law), Jessica Rose (Community & Economic Development, Brooklyn Legal Svcs.), & Carmen Huertas (CUNY Law) have posted The Greening of Community Economic Development: Dispatches from New York City, Western New England Law Review, Vol. 31, No. 645 (2009). The abstract:
Community development corporations and other community-based organizations have recently begun to make major efforts to incorporate environmental elements into their projects. This article examines this healthy trend, and lawyers’ contributions to it, through the work of three groups in three diverse communities of color in New York City. It is based on the authors’ experience providing or directing transactional legal assistance to those groups as directors of law school community economic development clinics (Huertas-Noble at CUNY, Glick at Fordham) or of legal services community development units (Rose at Brooklyn Legal Services Corp. A).
Our clients are merging activism for economic development and environmental justice to create green-collar jobs for local residents, build affordable housing that is environmentally friendly, and use local land for sustainable projects that serve and improve the community. In the Cypress Hills section of East New York in Brooklyn, an established community development corporation works creatively to amass the financing required to make its buildings increasingly green. In West Harlem, a prominent environmental justice organization fights for community - serving sustainable land use and for programs to prepare people of color to get their fair share of jobs and contracts in the emerging green economy. In the South Bronx, a new organization forms worker-owned enterprises that train and employ local residents, protect the environment, and offer the potential for residents to accumulate a modicum of local wealth. Other articles in this symposium report a similar convergence of CED and environmental justice efforts in other parts of the country.
This is a promising trend. It offers real possibilities for low-income people of color to live healthier, safer, better lives. It moves forward their efforts to gain greater control over local land and resources. It supports their struggle to survive the deepening economic crisis and offers them the potential to influence and benefit from a more supportive new administration in Washington.
Our snapshots show lawyers, law students and law faculty, making small but important contributions. They help to design, maintain, and adapt legal entities and governance strictures, negotiate contracts and leases, navigate regulatory and subsidy systems, and advise and assist in project development, coordination, and financing. We are committed to doing more of this work and learning how to do it better. We hope you will join us.
Monday, February 15, 2010
From this evening's broadcast of NPR's All Things Considered, one of those stories that makes you say, "Huh?" and them "hmmnn." Seems there's a controversy brewing over how this year's census will count prisoners - as part of the population of the place where they are imprisoned, or their community of origin. You might ask yourself, "How is this a story for the Land Use Prof Blog?" Well, as it turns out, the controversy creates an urban/rural (and a racial) split. The prisoners come from African-American and Latino urban areas, and the places where they are imprisoned are rural and predominantly white. Both areas tend to be poor, and with census numbers come federal dollars to address their most pressing issues - including schools and jobs.
It's always troubling when the neediest folks are pitted against each other for limited resources. We'll see if some happy medium can be found on this issue.
Jamie Baker Roskie
UPDATE: Turns out the funding issue is a bit of a red herring, according to Peter Wagner of the Prison Policy Initiative. The real issue is redistricting, and the increase of political influence for districts that have prisons. See his comment to this post, below, which explains the issues more clearly.
Sunday, January 17, 2010
The talk in Charleston these days--apart from Boeing's decision to build a new manufacuturing center nearby--focuses primarily on proposed plans to construct an upgraded terminal for cruise lines--specifically for Carnival, doubling the current number of cruises departing from the Holy City. Even though Charleston boasts a seafaring past, the land use community's reception to the proposal has been mixed. By way of example, for those who've visited Old San Juan, Puerto Rico, on a busy day when thousands of tourists pour from multiple muti-story cruise ships and overwhelm local infrastructure, similar developments in Charleston may not be such a good thing. To this end, preservationists are weighing in, pro and con, on the proposed two-story system of shops, dining, and lodging planned for the area adjacent to the terminal. Striking the right balance between tourism, economic diversity, quality of life for local residents, and preservation of historic resources is never easy, but public discussions on the topic suggest that local consensus may be reached. Click here and here to learn more. New York design firm Cooper Robertson & Partners, which has already designed several public buildings in historic Charleston (Visitors Center, Judicial Center, College of Charleston School of Education) has been selected to do the work.
Will Cook, Charleston School of Law
Wednesday, January 6, 2010
Today on public radio's Marketplace, a story about how the recession has shown that strip mall space has been way overbuilt. No suprise. The story predicts no new strip malls will be in the Sunbelt for years. No problem. The downside, though, is that strip malls are struggling because local businesses are struggling. ("Regional" malls are anchored by chains that don't rely on just one location to stay afloat.) The decline of locally-owned business is a trend I hope will be reversed sometime soon. Maybe they'll be helped by cheaper rents for commercial space.
Jamie Baker Roskie
Tuesday, December 15, 2009
Amy Lavine (Albany) has posted Urban Renewal and the Story of Berman v. Parker. The abstract:
The Supreme Court’s 1954 decision in Berman v. Parker serves as the foundation for much of our modern eminent domain jurisprudence, including the controversial 2005 Supreme Court decision in Kelo v. New London. But the story behind the case starts well before 1954, and it carries implications that are relevant today. It’s a story that played out in many cities across the nation, just as it did in Washington, D.C., where the case took place. It’s the story of urban decay and urban renewal.
This working paper covers the history of redevelopment in Southwest Washington, from the turn of the century to today. It discusses the City Beautiful movement and progressive housing reform in Washington, the rise of public housing and slum clearance policies, the urban renewal planning process as it played out in Southwest D.C., and the demise of urban renewal as a federal policy in the wake of its failures. The conclusion points out while we may approach contemporary economic development projects differently than we approached urban renewal in the 50s and 60s, much can still be learned from the story behind this landmark case.
This looks really interesting, and if you download the paper you will see that it is chock full of maps, diagrams, and photos, which really enhances a land use project like this.
Monday, December 7, 2009
Today our clients the Newtown Florist Club, and the Clinic, got some great coverage in the Gainesville (GA) Times. This article, hopefully the first in a series, covers the impact of industry on the Newtown neighborhood, something I've discussed in a previous blog post and that one of my students also discussed in his guest post. I'm very pleased with this coverage - this reporter, Ashley Fielding, has really gotten at the history and nuance of this complicated situation, which implicates zoning, public health, nuisance, race, class, community and economic development, and much more. Who says newspaper reporting is a dead art?
Jamie Baker Roskie
December 7, 2009 in Community Design, Community Economic Development, Environmental Justice, Environmental Law, Georgia, Industrial Regulation, Local Government, Nuisance, Planning, Politics, Property, Race, Redevelopment, Zoning | Permalink | Comments (0) | TrackBack (0)
Thursday, October 29, 2009
I recently received the fall 2009 newsletter of the Poverty & Race Research Action Council. Among many timely and interesting articles, the newsletter includes a piece titled "Right to the City: Social Movement and Theory." The Right to the City has received relatively limited scholarly treatment in the United States but enjoys a wider following in other countries. That said, there is a growing domestic movement characterized by national conferences and local grassroots action. The article describes the context for a focus on the Right to the CIty: "The emergence of the city as a central site of social struggle is linked closely to the unprecedented growth of urban populations alongside an equally dramatic increase in urban inequality and poverty." The article also cites French philosopher Henri Lefebvre's 1968 work, Le Droit a La Ville (Right to the City) as a major influence on the current movement.
The article describes a number of grassroots Right to the City projects focused mainly on anti-displacement and anti-gentrification efforts. Those new to the movement will find Don Mitchell's book, The Right to the City: Social Justice and the Fight for Public Space, to be a useful resource. Similarly, the Right to the City (RTTC) Alliance has a useful website. Peter Marcuse wrote a wonderful article focusing on cities and security issues after 9/11 (The "Threat of Terrorism" and the Right to the City, 32 Fordham Urb. L.J. 767 (2005)) and I have written a comparative piece on the United States and Brazil (Finding a Right to the City: Exploring Property and Community in Brazil and in the United States, 39 Vand. J. Transnat'l L. 435 (2006)).
In short, the Right to the City movement provides a voice and direction to urban communities searching for economic resources and better avenues to effectively participate in local decisionmaking.
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
Sunday, October 25, 2009
David W. Kennedy (Harvard) has posted Some Caution about Property Rights as a Recipe for Economic Development. The abstract:
In recent years, enhancing the security and clarity or formality of property rights has become something of an idée fixe among global development policy experts. This is more ideological assertion than careful history, however. Western economies have experienced periods of aggressive industrialization and economic growth with a wide range of different property regimes in place. Throughout the West, property rights have always been embedded in a complex legal fabric which modifies their meaning and qualifies their enforcement. In fact, most proposals for “strong and clear” property rights rest, at least in part, on lay conceptions about the legal order which are simply not warranted. These include the following: that “property rights” have an ideal form which can be disentangled from the warp and woof of social and economic struggle in a society; that “private order,” including property rights, and “public regulation” can and ought to be cleanly separated, the one supporting the market, the other potentially distorting it; that “strengthening” property rights has no distributive implications, if only because property law concerns the “rights” of individuals over things rather than complex relations of reciprocal rights and duties among people with respect to things; that concerns about social uses and obligations are only properly pursued outside the property regime, through social regulation of one or another sort; that in a well functioning market economy, all “private” rights can and will be freely rearranged by market forces, rendering decisions about their initial allocation unimportant; or that the formalization of property rights leads cleanly to both efficiency and growth, eliminating the need for policy judgment about the desirability of alternative uses and distributional arrangements.
Each of these six ideas supports the notion that the development of a proper law of property can be accomplished without facing complex questions of social, political and economic strategy. But each is incorrect. Property law is a critical domain for engaging, debating and institutionalizing development policy, but it is not a substitute for strategic analysis and political choice. In this short essay, I review these common, if mistaken, ideas about property rights in the West in light of the Western experience. My objective is to place the strategic choices embedded in any property regime in the foreground and lead one to hesitate before accepting conventional neo-liberal wisdom about the importance of “clear” or “strong property rights” for economic development.