Friday, October 28, 2011
After slogging through the Mahon and Penn Central cases (booorrring), it's always a relief to start talking about Lucas v. South Carolina Coastal Council. The reason is simple: Justice Scalia knows how to keep us entertained. In particular, Scalia loves to get sassy in his footnotes. I'm sure readers have their favorites, but one of mine is footnote 8 of the Lucas opinion, which in addition to being enjoyable, is also very illuminating. I spend about 20 minutes of class time discussing this footnote and its implications for both takings law specifically and land use law more generally, including the intractable NIMBY problem.
The basic holding of Lucas is that a state regulation that deprives property of all economic value (i.e., a "total wipeout") is a per se taking, subject to a few caveats and exceptions that I'm not going to get into here. Footnote 8 takes on Justice Stevens's argument, in dissent, that the "total wipeout" rule is arbitrary because the landowner who suffers a 95% wipeout gets no compensation while the landowner who suffers a 100% wipeout gets 100% compensation. Scalia's response: that result "is no more strange than the landowner whose premises are taken for a highway (who recovers in full) and the landowner whose property is reduced to 5% of its former value by the highway (who recovers nothing). Takings law is full of these 'all-or-nothing' situations." To illustrate this hypothetical, I draw the following picture on the board:
I then ask my students the question left unanswered by this hypo: why does Owner "A," whose land is taken for the highway, get full compensation, whereas Owner "B", whose land is substantially devalued by the siting of a highway adjacent to his home, get nothing?
Friday, October 21, 2011
Antonio Azuela (UNAM) has published Property in the Post-post-revolution: Notes on the Crisis of the Constitutional Idea of Property in Contemporary Mexico, 89 Tex. L. Rev 1915 (2011). In it he raises a number of questions important to comparativists and property theorists alike through discussion of a series of recent Mexican land law controversies. Here is a summary from the Law Review website:
Professor Azuela responds to a critical lack of contemporary constitutional scholarship concerning property rights in Mexico. He argues that current problems affecting property rights in Mexico stem from a variety of social and political issues, including eminent domain and the tragedy of the commons. Given this variety, theoretical models are often lacking, so Professor Azuela proposes a research agenda that will address weaknesses, account for the constitutional and social-science dynamics of the debate.
Monday, October 17, 2011
Richard Epstein (NYU) has written Littoral Rights under the Takings Doctrine: the Clash between the Ius Naturale and Stop the Beach Renourishment, 6 Duke J. Const. L & Pub. Policy 37 (2011). He begins with the point that, due to the self-contradictory nature of judicial takings in a unitary court system, "the doctrine of judicial takings can, in practice, only arise in a federalist system." He goes on to argue for an appropriate deployment of centralized, federal oversight of state courts in defense of age-old, decentralized ius naturale. He sees Stop the Beach as a missed opportunity to invalidate years of Florida precedent as well as the Preservation Act that occasioned the controversy. He concludes that application of the judicial takings doctrine "should be limited to those circumstances in which the decided cases make a radical break from well-established common law patterns that systematically work for the advantage of the state or some identifiable private faction."
Wednesday, October 12, 2011
Patricia Salkin (Albany) and Daniel Gross (Albany) have posted International Comparative Property Rights: A Cross-Cultural Discipline Comes of Age. The paper is being given this weekend at the Brigham-Kanner Conference, which is being held in Beijing this year. The abstract:
This article provides an overview of the differences and similarities among a select group of nations through an examination of their real property protection regimes. The countries selected – South Africa, India, Chile, Singapore and Ghana – were chosen to illustrate how geographical, social, and economic diversity all contribute to different property rights cultures and legal approaches. Part II of this article examines general international or global factors that affect property rights. Part III offers a focused look at the historical and cultural development of property rights in the five selected countries. Part IV follows with a discussion of some of the domestic factors present in these five different countries that contribute to or influence the development and enforcement of different property rights regimes. The article concludes in Part V with a discussion about the importance of understanding the property rights regimes in other countries to better enable practitioners to provide responsible legal counsel to clients.
This one looks really interesting for those who are looking at comparative perpsectives. There have been a lot of land use and property related articles posted recently (I think we're probably two articles behind just on Prof. Salkin's recent work!)-- we'll be bringing them to you soon . . . and if you have an article that you'd like us to post about, let us know.
Wednesday, September 28, 2011
Lisa Alexander (Wisconsin) has posted Cultural Collective Efficacy, Social Capital and Place-Based Lawmaking: Revisiting the People Versus Place Debate. In it she renews the debate between those who advocate improving geographic communities and those who emphasize increasing options for economically and socially mobile households. Here's the abstract:
U.S. housing law is finally receiving its due attention. Scholars and practioners are primarily focused on the subprime mortgage and foreclosure crises. Yet, the current recession has also resurrected the debate about the efficacy of place-based lawmaking. Place-based laws direct economic resources to low-income neighborhoods to help existing residents remain in place and to improve those areas. Law-and-economists and staunch integrationists respectively attack place-based lawmaking on economic and social grounds. This Article examines the efficacy of place-based lawmaking through the underutilized prism of culture. Using a socio-legal approach, it develops a theory of cultural collective efficacy as a justification for place-based lawmaking. Cultural collective efficacy describes positive social networks that inner-city residents develop through participation in musical, artistic and other neighborhood-based cultural endeavors. Cultural collective efficacy can help inner-city residents mitigate the negative effects of living in a poor and segregated community as well as obtain more concrete benefits from urban revitalization. It provides a framework to examine important microdyanmics in the “inner-city” that many scholars and policymakers have ignored. This Article devises new combinations of place-based laws that might protect cultural collective efficacy such as: (1) historic districts with affordable housing protections secured through transferable development rights, (2) foreclosure prevention strategies, (3) techniques to mitigate eminent domain abuse, and (4) re-interpretations of the Fair Housing Act’s “affirmatively furthering” fair housing mandate. These examples of place-based lawmaking may more effectively promote equitable development and advance distributive justice in U.S. housing law and policy.
Tuesday, September 27, 2011
Michael Diamond (Georgetown) has posted Shared Equity Housing: Cultural Understanding and the Meaning of Ownership, a chapter in the recently published book The Public Nature of Private Property (Ashgate, Malloy and Diamond, eds.). In it, he examines the place of affordable homeownership resale restrictions in broader notions of private property. Here's the abstract:
In this paper I examine whether shared equity limitations that are sometimes applied to subsidized affordable housing creates for the owners of such housing a second class ownership status. I conclude that they do not. In support of this conclusion, I look at the meaning of property from both cultural and historical perspectives. I argue that property and ownership are culturally constructed concepts that are understood differently in different cultures and in the same culture over time. I examine the series of limitations that have been placed on property in industrial societies and argue that the limitation on equity is just another in a long list of limitations that society has imposed on ownership in favor of a supervening social good, in this case, the preservation of affordable housing for future generations of low-income homeowners.
Michael and the other contributors to this book have presented at the wonderful Association for Law, Property and Society annual meetings that he and Robin Paul Malloy have organized these past couple of years at Georgetown. Registration for the 3rd Annual Meeting this coming March has recently opened and will remain so until January 20th.
Wednesday, September 21, 2011
Hillary M. Hoffman (Vermont) has posted Signs, Signs, Everywhere Signs: The Wilderness Society v. Kane County Leaves Everyone Confused About Navigating a Right-of-Way Claim Under Revised Statute 2477. The abstract:
The Tenth Circuit’s recent decision in The Wilderness Society v. Kane County has changed the landscape of litigation arising out of Revised Statute 2477, a provision of the Mining Act of 1886 repealed by the Federal Land Policy and Management Act of 1976. Prior to this decision, the presumption was that the United States owned all federal public lands unless an adverse claimant proved otherwise. Moreover, any adverse claimant was required to bring an action under the Quiet Title Act to divest the federal government of title to its property. This decision turns both of those presumptions inside-out, provided that states and counties assert rights under R.S. 2477, regardless of whether they can be proven. This Article explores the history of R.S. 2477, its repeal by the Federal Land Policy and Management Act, and the Tenth Circuit’s historical treatment of R.S. 2477 claims. It also discusses why the Tenth Circuit’s holding in the Kane County case misconstrues the nature of an R.S. 2477 dispute, overlooks long-recognized presumptions about federal ownership of federal land, and ignores the myriad of legal issues involved in an R.S. 2477 dispute. Lastly, it makes specific suggestions about how the Tenth Circuit should address litigation surrounding the growing number of R.S. 2477 battles in years to come, to enable litigants and lower courts to more easily navigate this complex area of law.
An important issue, and on a tangent, the title reminds me how I keep trying in Property I to illustrate the right to exclude with clips from the Five Man Electrical Band, but kids today don't seem to dig it.
Tuesday, September 13, 2011
Econ Journal Watch has published an online symposium featuring a number of short pieces by leading scholars debating the "bundle of rights" characterization of property, which has been critiqued over the past few years. Titled Property: A Bundle of Rights, 8 Econ Journal Watch 193 (2011), the symposium was organized by George Mason economist Daniel B. Klein and PhD student John Robinson. The abstract to their Prologue:
This piece is the Prologue to an Econ Journal Watch symposium entitled, Property: A Bundle of Rights? This Prologue was written to prompt the invited scholars to expound their own criticisms of the bundle-of-rights view, or, as the case may be, to address criticisms out there. The Prologue is written from a staunch yet pragmatic classical liberal perspective. It frames a number of issues, provides a series of quotations, and asks a number of questions intended to prompt the symposium participants. The symposium participants include leading critics of the bundle formulation James E. Penner, Thomas W. Merrill, and Henry E. Smith; younger critics Larissa Katz, Eric R. Claeys, and Adam Mossoff; eminent defenders of the bundle formulation Stephen R. Munzer and Richard A. Epstein; and the renowned property scholar Robert C. Ellickson, who takes a middle position.
The articles are all posted online and should make fascinating reading for all teachers of the subject and anyone interested in property theory.
Thursday, August 11, 2011
Ilya Somin (George Mason) has posted Federalism and Property Rights, University of Chicago Legal Forum (2010 Symposium on Governance and Power), p. 1, 2011. The abstract:
Both the Supreme Court and leading legal scholars have often cited federalism as a reason to severely limit federal judicial enforcement of constitutional property rights. Defenders of the federalism rationale for judicial deference on property rights issues make two key arguments. One holds that abuses of property rights by state or local governments will be curbed by interjurisdictional competition, rendering judicial intervention unnecessary. The second is the superior knowledge and expertise of state and local governments relative to federal judges.
This article criticizes both claims. Part I explains why competitive federalism is unlikely to provide effective protection for property rights in land because property is an immobile asset. People who “vote with their feet” by leaving a jurisdiction cannot take their land with them. For this crucial reason, interjurisdictional competition will often fail to effectively protect property rights in land, though it may be more useful in the case of rights to mobile property.
Part II takes up the issue of diversity and expertise. While state and local governments may indeed have greater expertise than federal courts in assessing local conditions, federal judicial protection of property rights ultimately empowers not judges but property owners. It is the latter who will actually get to decide the uses of the land in question in cases where federal courts prevent state or local governments from condemning their property or restricting its use. Owners generally have greater knowledge of their land than local government officials do. Moreover, the local expertise rationale for judicial deference on property rights would, if applied consistently, justify judicial deference to state and local governments with respect to numerous other constitutional rights, including those protected by the First and Fourth Amendments.
Questions about federalism with respect to property and land use have been getting a lot of attention recently. This article looks like it will really contribute to those discussions. While other land use scholars are focusing on questions of federal vs. state vs. local regulation of property and land (i.e., legislative and administrative acts), Somin's article focuses on asking which level of government is appropriate to exercise judicial review of those acts. It will be interesting to compare.
August 11, 2011 in Constitutional Law, Economic Development, Eminent Domain, Federal Government, Judicial Review, Local Government, Property Rights, Property Theory, Scholarship, State Government, Supreme Court | Permalink | Comments (0) | TrackBack (0)
Thursday, August 4, 2011
I was on the road for about a month with very little internet access (more on that to come). Fortunately, my land use students keep me up to date on things. Late last week I learned from my student Sonny Eckhart that the Texas Supreme Court issued its latest, and perhaps last, ruling in the Severance v. Patterson case that we've been following here on the blog, "abating" the case until the Fifth Circuit rules on the issue of mootness. I asked him to write it up for our readers, and here's what he has to say:
For those who have been following the Open Beach Act Litigation in Severance v. Patterson: warning, you might be a little disappointed. The Severance case is a challenge to the Texas Open Beaches Act, where Galveston Island homeowner Carol Severance brought suit against the Texas Attorney General and other state officials over the central issue of whether private beachfront properties on Galveston Island have redress when a public beach access easement is “rolled” onto private property when the vegetation line migrates landward. Needless to say, this has caused a stir in the courts and among legal scholars. During this process, the Land Use Prof Blog has provided several discussions and updates on the long-running dispute. See here, here, here, here, here, and here.
On November 5, 2010, the Texas Supreme Court issued their opinion concluding public easements do not always “roll” with the beachfront. Most notably, the court distinguished between a change or avulsion caused by a natural event, such as a hurricane, and a “gradual change.”It would appear that Carol Severance had won a substantial victory. To combat this, the State filed a motion for rehearing—a motion that held the support of several amicus groups. The court granted rehearing in Severance and heard arguments four months ago, in April.
The facts of the case took an unexpected turn a few weeks ago when Carol Severance sold her property in Galveston, and thus may have rendered the legal action moot. The State acted quickly and filed a motion to vacate the November 2010 opinion before sending this matter back to the Fifth Circuit. Both parties submitted briefs on the issue of mootness. See State’s brief on mootness; Severance’s brief on mootness. Last Friday, July 29, the court issued an order that abated the case until the Fifth Circuit first reviewed the issue of mootness. The order in this case abates the Texas Supreme Court appeal until the jurisdictional issues can be decided.
Is This The End?
Find out after the jump!
August 4, 2011 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Judicial Review, Property, Property Rights, Property Theory, State Government, Takings, Texas | Permalink | Comments (1) | TrackBack (0)
Thursday, July 21, 2011
William & Mary sends news and this latest press release about the upcoming annual Brigham-Kanner Property Rights Conference, with links:
Beijing Conference Explores the Importance of Property Rights on a Global Scale
As China continues to emerge as an economic superpower, one of the challenges it faces is deciding how to further enhance its market economy through its private property laws. It is against this backdrop that, on October 14-15, William & Mary Law School's Property Rights Project will host the law school's first international conference at Tsinghua University in Beijing, China. The eighth annual Brigham-Kanner Property Rights Conference will bring together esteemed scholars, jurists, and practitioners from the United States and China to discuss the evolution of property rights on a global scale.
Justice Sandra Day O'Connor will receive the 2011 Brigham-Kanner Property Rights Prize at the conference and will be a featured speaker. O'Connor served as an associate justice of the Supreme Court from 1981 to 2006. She made history in 1981 as the first woman nominated to serve on the high court. Her widely cited dissenting opinion in Kelo v. City of New London (2005) has been hailed as a pivotal opinion in property law jurisprudence. She became Chancellor of the College of William & Mary following her retirement from the judiciary. A formal reception will be held on October 13 at the United States Embassy in Beijing to honor Justice O’Connor and the conference’s Chinese host, Tsinghua University School of Law.
The conference is being held at and in cooperation with Tsinghua University School of Law, one of China’s top universities and law schools. The conference will be a featured event during Tsinghua University's celebration of the 100th anniversary of its founding.
Holding the conference in China "will foster a comparative framework for the discussion of property rights that is long overdue given the strong ties between the United States and China and China's dynamic role in the world economy," explained Chancellor Professor of Law Lynda Butler, the Project's director.
William & Mary Law School Dean Davison M. Douglas said the slate of participants comprised many scholars "whose work forms the foundation of contemporary American property law jurisprudence." He added that while plans are still preliminary, he looked forward to having a number of China's pre-eminent scholars also participate.
The annual Brigham-Kanner Property Rights Conference is named in recognition of Toby Prince Brigham and Gideon Kanner for their lifetime contributions to private property rights. Now in its eighth year, the conference is designed to bring together members of the bench, bar and academia to explore recent developments in takings law and other areas of the law affecting property rights. During the conference, the Project presents the Brigham-Kanner Prize to an outstanding figure in the field.
All previous prize recipients will participate in the conference. They include: Richard A. Epstein, formerly of the University of Chicago Law School and now at New York University School of Law, Robert C. Ellickson of Yale Law School, James W. Ely, Jr., professor emeritus of Vanderbilt Law School, Frank I. Michelman of Harvard Law School, Richard E. Pipes, professor emeritus of Harvard University, Margaret Jane Radin of the University of Michigan Law School, and Carol M. Rose of the University of Arizona James E. Rogers College of Law and professor emerita of Yale Law School.
The Conference program will explore the following panel topics:
** Legal Protection of Property Rights: A Comparative Look
** Reflections on Important Property Rights Decisions
** Property as an Instrument of Social Policy
** How Practitioners Shape the Law
** Culture and Property
** Property as an Economic Institution
** Property Rights and the Environment
** The Future of Property Rights
An optional post-conference tour of China and Hong Kong has been arranged. The tour will run from October 16 through 23. Prior to the conference, on October 13, day trips will be available to the Forbidden City and Great Wall.
For information about the conference, CLE credit, and the optional trips and tour, please visit the Brigham-Kanner Property Rights Conference website at www.bkconference.com or contact Kathy Pond at firstname.lastname@example.org.
Dean Douglas’s video message: http://www.youtube.com/watch?v=f64MYI3bs9A&feature=player_embedded
The Brigham-Kanner Conference always has a great lineup of participants, and this year it goes global!
Tuesday, May 31, 2011
As May draws to a close, I’d like to thank the Land Use Prof Blog editors for what has been an enjoyable month of guest-blogging. This month has been a devastating one for Missouri. My first blog post of the month discussed legal issues surrounding the flooding of hundreds of square miles in Southeast Missouri, and this post examines land use questions facing Joplin, Missouri, in the wake of a tornado that ravaged much of that town on May 22.
Last Saturday, I went to Joplin to assist in a massive clean-up operation that is now underway. Despite watching plenty of television footage earlier in the week, I was startled at the degree of destruction. In the city’s most severely damaged neighborhoods, entire city blocks had been reduced to mere piles of debris. Without fences or buildings to segregate their respective rights, effected landowners were ignoring property boundary lines and working together in a desperate effort to recreate some semblance of order.
As we gathered rubble and piled it along roadsides and alleyways, it occurred to me that the tornado had temporarily suspended most property and land use laws in the area. Laws of trespass, nuisance, and encroachment had been set aside. Land that deeds, easements, covenants, and zoning restrictions had once sculpted into orderly middle-class neighborhoods had briefly reverted to a sort of regulated commons.
Of course, property rights enforcement will soon re-emerge in Joplin’s tornado-stricken areas for the same sorts of reasons as those famously described by Harold Demsetz in his article, Toward a Theory of Property Rights. As order gradually returns to Joplin, the city will need a strategy for rebuilding. Hopefully, Joplin’s civic leaders will learn from the experiences of other tornado-ravaged towns. An article published in the Kansas City Star last week discusses what Joplin might glean from Greensburg, Kansas—a town that has redefined itself as a cutting-edge “green” community after encountering its own tornado. A different article published in today’s Charlotte Observer describes the successes and failures of Wheatland, Pennsylvania, and Xenia, Ohio, in land use policymaking as those cities recovered from major tornado damage in years past. According to the article, Tuscaloosa, Alabama, has already appointed a 50-person task force to generate a recovery plan following that city’s April 27 tornado. Land use planning should play an important role as both Tuscaloosa and Joplin rebuild in the years ahead.
May 31, 2011 in Community Design, Comprehensive Plans, Development, Economic Development, Local Government, Planning, Property, Property Rights, Property Theory, Redevelopment | Permalink | Comments (1) | TrackBack (0)
Monday, May 23, 2011
In his most recently posted work, Property Law as the Infrastructure of Democracy, Joseph Singer (Harvard) confronts the libertarian notion that aggressive regulation of private property rights threatens individual freedom and democratic institutions. Here's the abstract:
It is commonly thought that if one is in favor of strong protection for property rights, liberty, and the free market, one must believe in a minimal state that limits "regulation." But if we pay attention to the history of property law, it becomes clear that all these things can only exist with a robust regulatory structure. Libertarian calls for small government fail to recognize that modern property rights came into existence because of laws that prohibited feudalism, slavery, caste status, and discriminatory barriers to entry to the marketplace. Modern statutes go beyond these foundational regulations to protect consumers by establishing minimum standards for market relationships. Property law (including consumer protection laws) functions as a private constitutional structure that shapes the contours of economic and social relationships; it is the infrastructure of democracy. Its core mission is to define the framework for a free and democratic society that treats each person with equal concern and respect.
This talk was the Fourth Wolf Family Lecture on the American Law of Real Property delivered April 4, 2011, at the University of Florida Fredric G. Levin College of Law and will be published in Powell on Real Property (Michael Allan Wolf ed., LexisNexis Matthew Bender).
Thursday, May 19, 2011
Timothy Mulvaney (Texas Wesleyan) has posted Proposed Exactions, forthcoming in the Journal of Land Use & Environmental Law, Vol. 26, No. 2 (2011). The abstract:
In the abstract, the site-specific ability to issue conditional approvals offers local governments the flexible option of permitting a development proposal while simultaneously requiring the applicant to offset the project’s external impacts. However, the U.S. Supreme Court curtailed the exercise of this option in Nollan and Dolan by establishing a constitutional takings framework unique to exaction disputes. This exaction takings construct has challenged legal scholars on several fronts for the better part of the past two decades. For one, Nollan and Dolan place a far greater burden on the government in justifying exactions it attaches to a development approval than it has placed on the government in justifying the underlying regulations by which such approval could be withheld. Moreover, there remain a series of unanswered questions regarding the scope and reach of exaction takings scrutiny that plague the development of a coherent body of law upon which both landowners and regulators can comfortably rely. This Article explores whether these problems are amplified where the exaction takings construct that is ordinarily applied when an exaction is imposed is also applicable at the point in time when an exaction is merely proposed. The piece seeks to move beyond the cursory analysis in the few reported decisions addressing this issue by identifying and exploring the competing normative justifications underlying it.
I've seen Tim present this research, and it's really quite fascinating. Check it out.
Sunday, May 15, 2011
While it's not entirely a land use issue, many of us have had to deal with perpetuities issues in land. Contrary to what you hear from certain property-haters out there, the Rule Against Perpetuities still affects many property law issues, even if it lurks behind the scenes much of the time. Some of you may have seen this story going around: Millionaire's heirs get inheritance after 92 yrs; Lumber baron Wellington R. Burt finally parts with his fortune, 21 years after his last grandkid died.
(AP) SAGINAW, Mich. — Ninety-two years after his death, Saginaw lumber baron Wellington R. Burt is finally parting with the fortune he withheld from his descendants until 21 years after the death of the last grandchild born in his lifetime.
The estate is now valued at $100 million to $110 million. It will be shared among 12 of his heirs later this month.
According to The Saginaw News, Burt once was among the eight wealthiest Americans. He made millions of dollars in the harvesting of the Saginaw Valley's timber and then another fortune in Minnesota's iron mines. He served as mayor of Saginaw and later as a Michigan state senator.
At 19 years old, Christina Cameron of Lexington, Ky., is the youngest of the 12 and is in line to receive $2.6 million to $2.9 million. . . . Cameron is the great-granddaughter of Marion Landsill. She was the last survivor among Burt's grandchildren who were born in his lifetime. She died Nov. 21, 1989.
Saginaw County Chief Probate Judge Patrick McGraw said the estate is "one of the most complicated research projects" he's faced in his 12-year career in Saginaw. When McGraw arrived in 1999, the estate had long been a part of courthouse lore.
The Dead Hand got its wish, to the maximum extent allowed under the RAP! Show this story to your students the next time you hear that they know a guy who knows a guy who knows a lawyer who says the RAP doesn't have any real-world impact. While many states have abolished or reformed the rule, property law still remains in the shadow of the ol' lives in being + 21 rule. Personally, I think it also gets the point across if you wear a Rule Against Perpetuities t-shirt like the one above from my closet, but that may not fit everyone's sense of style. Thanks to Steve Homer, John Kowalczyk, and Ash Shepherd for the pointer.
Tuesday, May 10, 2011
James W. Ely, Jr. (Vanderbilt) has posted The Constitution and Economic Liberty, forthcoming in the Harvard Journal of Law and Public Policy. The abstract:
This essay addresses the relationship between the Constitution and Bill of Rights and the concept of economic liberty. It calls into question the famous quip of Justice Holmes in Lochner v. New York (1905) that the Constitution was not intended “to embody a particular economic theory.” The essay contends that the framers of the Constitution clearly envisioned a constitutional order grounded on private property and a market economy. To this end, many provisions of the Constitution pertain to property interests and economic activity. It concludes that, although the Constitution does not endorse a laissez-faire regime, Holmes was wrong to suggest that the Constitution was entirely neutral with respect to economic policy. In fact, the framers favored a free market and sought to protect property and contractual rights.
This short essay from one of my mentors is packed with a compelling historical argument.
Friday, April 1, 2011
Eduardo Penalver (Cornell) and Lior Strahilevitz (Chicago) have posted Judicial Takings or Due Process? The abstract:
In Stop the Beach Renourishment v. Florida Department of Environmental Protection, 130 S. Ct. 2592 (2010), a plurality of the Supreme Court concluded that the Takings Clause of the United States Constitution prohibits the judiciary from declaring that “what was once an established right of private property no longer exists” unless the property owner in question receives just compensation. In this paper, we delineate the boundaries between a judicial taking and a violation of the Constitution’s due process protections. The result is a judicial takings doctrine that is narrower and more coherent than the one suggested by Stop the Beach.
Our argument proceeds in two parts. The first is a conceptual section that explains what factors are relevant to determining whether a judicial action diminishing a private property interest is a judicial taking or something else. In our view, where a judicial decision intentionally seizes private property in order to achieve a legitimate public end, the Takings Clause is an appropriate framework for evaluating the constitutionality of the state’s action. Due Process is the more appropriate doctrinal pathway where the judiciary does not intend to abrogate a private owner’s property rights, or where the diminution of private property rights results from a judicial action that serves no legitimate public purpose. By clarifying the boundaries of judicial takings, we also hope to shed light on the constitutional foundation for numerous state-court doctrines concerning the retroactivity of new property rules. The second section articulates a novel functional argument, which suggests that creating liability for judicial takings may cause litigants to underinvest in high quality legal representation, which will in turn increase the likelihood of judicial mistakes and contribute to the destabilization of existing entitlements. This phenomenon prompts us to argue that cases in which the underinvestment incentives are most pronounced should be litigated under the Due Process Clause, but cases where repeat-play or the government’s involvement as a litigant mitigates the underinvestment problem represent more appropriate vehicles for judicial takings treatment. What rides on the distinction between judicial takings and due process violations? Under our approach, judicial takings cases should be (a) easier to win than due process cases, (b) more likely to result in damages remedies than injunctive remedies, and (c) may lend themselves to attractive “comparative fault” inspired solutions.
Looks like a very important paper!
April 1, 2011 in Beaches, Caselaw, Constitutional Law, Judicial Review, Property Rights, Property Theory, Scholarship, State Government, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)
Wednesday, March 23, 2011
Sheila Foster (Fordham) has just posted Collective Action and the Urban Commons, 87 Notre Dame L. Rev. ___ (forthcoming 2011), another interesting and important article on community control of land resources in the urban context. Here's the abstract:
Urban residents share access to a number of local resources in which they have a common stake. These resources range from local streets and parks to public spaces to a variety of shared neighborhood amenities. Collectively shared urban resources suffer from the same rivalry and free-riding problems that Garrett Hardin described in his Tragedy of the Commons tale. Scholars have not yet worked up a theory about how this tragedy unfolds in the urban context, particularly in light of existing government regulation and control of common urban resources. This Article argues that the tragedy of the urban commons unfolds during periods of “regulatory slippage” - when the level of local government oversight and management of the resource significantly declines, leaving the resource vulnerable to expanded access by competing users and uses. Overuse or unrestrained competition in the use of these resources can quickly lead to congestion, rivalry and resource degradation. Tales abound in cities across the country of streets, parks, and vacant land that were once thriving urban spaces but have become overrun, dirty, prone to criminal activity, and virtually abandoned by most users.
Proposed solutions to the rivalry, congestion and degradation that afflict common urban resources typically track the traditional public-private dichotomy of governance approaches. These solutions propose either a more assertive central government role or privatization of the resource. Neither of these proposed solutions has taken root, I argue, because of the potential costs that each carry - costs to the local government during times of fiscal strain, costs to communities where the majority of residents are non-property owners, and costs to internal community governance. What has taken root, however, are various forms of cooperative management regimes by groups of users. Despite the robust literature on self-organized management of natural resources, scholars have largely ignored collective action in the urban context. In fact, many urban scholars have assumed that collective action is unlikely in urban communities where social disorder exists.
This Article highlights the ways in which common urban resources are being managed by groups of users in the absence of government coercion or management and without transferring ownership into private hands. This collective action occurs in the shadow of continued state and local government ownership and oversight of the resources. Formally, although the state continues to hold the regulatory reigns, in practice we see the public role shifting away from a centralized governmental role to what I call an “enabling” one in which state and local government provides incentives and lend support to private actors who are able to overcome free-riding and coordination problems to manage collective resources. This Article develops this enabling role, marks its contours and limits, and raises three normative concerns that have gone unattended by policymakers.
March 23, 2011 in Agriculture, Community Design, Community Economic Development, Economic Development, Environmental Justice, Environmental Law, Environmentalism, Food, Land Trust, Local Government, Property, Property Theory, Scholarship, Urbanism | Permalink | Comments (0) | TrackBack (0)
Wednesday, March 16, 2011
Barbara H. Fried (Stanford) has posted Does Nozick Have a Theory of Property Rights? The abstract:
In the almost forty years since Anarchy, State and Utopia has appeared, Nozick's libertarian theory of property rights, laid out in Part II of the book, has been subject to innumerable internalist critiques. In this paper, I argue that the Nozick of Parts I, II and III, read together, holds at least three mutually inconsistent theories of property rights: utilitarian; libertarian; and anything goes, provided that citizens have some unspecified level of choice among legal regimes. If any of the three predominates, it is not libertarianism but utilitarianism.
Nozick is hardly alone in this regard. Nozick's inconstancy to libertarian principles is symptomatic of the problems deontologists of all stripes encounter in translating abstract articulations of rights theory into concrete rules. His de facto solution is typical as well: When the going gets tough, rights theorists tend to turn utilitarian.
Tuesday, March 15, 2011
Rashmi Dyal-Chand (Northeastern) has posted Useless Property. The abstract:
In his exposition of an economic theory of property rights, Harold Demsetz reinforced a foundational assumption in property law: that private ownership is the best way to harness resources for wealth-building purposes. Implicit in Demsetz’s model is the largely undefined belief that private ownership will incentivize appropriate use of the property because such use produces higher exchange value. This Article identifies a blind spot in Demsetz’s theory that has largely escaped attention in property law and theory. While fully acknowledging the powerful connection between use and exchange value delineated by Demsetz, it argues that, in disparate markets for new or emerging forms of property, the grant of property rights produces the opposite result from his prediction. As a consequence of failures in or deteriorations of use, a fundamental disconnect occurs in the process of developing exchange value. Rather than creating individual and systemic wealth, property ownership in these settings produces rent-seeking and systemic instability.
Because use appears to derive inevitably from ownership, property law does little to incentivize use. To correct this omission, this Article provides a framework for incentivizing use by owners of emergent property. It provides both a more detailed definition of use and a spectrum of interventions for this purpose. This normative framework sheds new lights on recent debates about commodification of such things as human organs and cultural property. It also provides insights on property’s role as a stabilizer of markets that are prone to bubbles and crashes. A greater sensitivity to use can guide appropriate policy choices in each of these difficult areas of market malfunction.
By undertaking a theoretical analysis of use’s potential as a facilitator of stable market exchange, this Article provides a framework for analyzing and solving instability at the core of many markets for emergent property. The concept of use has been under-theorized and underappreciated for its prescriptive potential. This Article begins the work of correcting that omission in property scholarship by giving use the more instrumental place it deserves in the owner’s bundle of rights.