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Saturday, January 14, 2006

Lewyn on Teaching Sprawl

Michael Lewyn (George Washington University Law School), who participated in our discussion of sprawl a few weeks ago, has posted Teaching Law Students about Sprawl on SSRN.  Here's the abstract:

In the fall of 2004, I taught a seminar on The Law of Sprawl at Southern Illinois University (SIU) School of Law. This essay seeks to guide would-be teachers of a course on sprawl by showing how I taught the course. Specifically, the article asserts that a seminar on sprawl belongs in law school curricula as well as planning school curricula, because a wide variety of legal rules contribute to sprawl. The article then goes on to discuss those legal rules and how I addressed them in my course. For example, the article discusses land use regulations that encourage automobile-dependent development, as well as state and federal highway, housing and education policies that favored suburbs over cities. As to each issue, the seminar addressed not only sprawl-producing government policies, but case law that upheld (or, in some cases, challenged) those policies.

Ben Barros

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January 14, 2006 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Iglesias and Lento on Affordable Housing

Tim Iglesias (University of San Francisco School of Law) and Rochelle E. Lento (Dykema Gossett, PLLC) have a new book out titled The Legal Guide to Affordable Housing Development.  Here's the description:

Since at least the 1970s, the U.S. has suffered from a chronic shortage of affordable housing. Despite fluctuations in the economy, there has never been sufficient affordable housing to meet the needs, and the most vulnerable persons in our communities are victims of this shortage. While federal affordable housing development programs have been severely cut in the past several decades, state and local governments have become more deeply engaged in the problem.

Producing and maintaining quality affordable housing is not an intractable social problem but, rather, is one that requires putting together the essential pieces of the puzzle – a development concept responsive to community needs, suitable land, permissive land use regulations, adequate government funding programs, and creative public-private partnerships.

The Legal Guide to Affordable Housing Development covers the most important areas of law applicable to affordable housing development and provides a comprehensive overview of affordable housing laws. Part I covers the regulatory framework of developing affordable housing. It includes chapters on planning requirements and zoning issues, a wide variety of constitutional and statutory provisions promoting affordable housing, and building and housing codes affecting affordable housing.

Part II addresses the provision of affordable housing finance, including local, state, and federal regulation of private, local, state, and federal sources of finance; local government powers; and mixed-finance housing development. Part III surveys critical legal obligations that affect affordable housing after it has been built, including regulatory compliance and enforcement at the state and federal level as well as preservation of subsidized housing issues. It also includes a chapter on federal relocation and replacement law that concerns housing acquired for the purpose of making it affordable.

The book concludes with a valuable appendix, the Affordable Housing Law Resource List, which offers a list of web sites and other citations to (a) general reference works and technical materials regarding affordable housing development and (b) compilations and evaluations of affordable housing strategies.

The Legal Guide to Affordable Housing Development is a practical resource for attorneys representing local governments (municipalities, counties, housing authorities, and redevelopment agencies), housing developers (both for-profit and nonprofit), investors, financial institutions, and populations eligible for housing.

Ben Barros

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January 14, 2006 in Books, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, January 13, 2006

No Longer Just the Barros Blog

I'm delighted to report that the last post on this blog was from someone other than me!  John Lovett, who teaches at Loyola-New Orleans and is the incoming chair of the AALS Property Section, has contributed a post on the rebuilding of New Orleans and may contribute more posts in the future.  If you are a property professor (or just want to play one on the internet) and are interested in contributing to this blog, please let me know.

Ben Barros

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January 13, 2006 in About This Blog | Permalink | Comments (0) | TrackBack (0)

Rebuilding New Orleans Report

New Orleans Mayor Ray Nagin’s Rebuilding New Orleans Commission committee recently released a report on urban planning.

The plan, which does not have the force of law, envisions a revitalized, ultra-planned, sustainable, light rail connected, new New Orleans in a reduced geographic footprint. By far the most controversial suggestion is that some neighborhoods in the city will not be rebuilt because they are too dangerously flood prone and just too expensive for the city to maintain with satisfactory public services and utilities.  To determine which neighborhoods get rebuilt and which are abandoned or bought out to create parks, green spaces and flood plains, the Commission proposes a lightning fast, four month planning process through which residents of the neighborhoods themselves will demonstrate which neighborhoods are sustainable by showing that at least half of the residents plan to return and other indicators of urban sustainability are in place. The plan also recommends that the city impose a four month moratorium on any new building permits so that residents do not invest money and resources rebuilding homes in areas that will ultimately not be rejuvenated. Finally, the plan proposes creation of a Crescent City Recovery Corporation, a public corporation that would have the power to buy out residents who do not want to rebuild (by paying 100% of their pre-Katrina equity) and the power of eminent domain as a last resort to acquire property of those who do not want to sell.

Not surprisingly, there is heated opposition to these recommendations in some quarters, particularly to the proposed permit moratorium and the potential eminent domain threat  Some residents claim they can rebuild on their own just fine without the assistance of the city and the visionary planners it has assembled.  They want the city to simply get out of the way.  Other residents, especially those from the lower Ninth Ward and New Orleans East, fear that the city or an aligned pubic redevelopment corporation will exercise the power of eminent domain to take the property they have struggled to create and maintain over generations against their will. Yesterday at the public meeting unveiling the plan some of these residents were threatening Waco-like resistance to any exercise of eminent domain.

My gut level prediction at the moment is that the Mayor will not have the political fortitude to impose the permitting moratorium but will let the planning process go forward in order to convince the state and federal authorities to release funds for rebuilding infrastructure and housing. This makes some sense because the permits granted and acted upon can themselves serve as an important piece of data in making the necessary planning decisions.  Further, the threat implicit in the plan of shutting down some neighborhoods is probably going to stimulate a lot of quick community building in neighborhoods that want to survive.  So, ultimately, the planning controversy could help invigorate the city in the long run.

But two big question marks remain.  First, FEMA has yet to issue flood plain maps that will tell people where they can rebuild (and how high they have to rebuild) to obtain federally supported flood insurance.  The maps are supposed to be released next month.  And second, Congress and the President need to pass and sign the Baker Bill (HR 4100) to create some public corporation with sufficient funding that can settle mortgages, buy out some portion of homeowner’s equity, and perform some land assembly tasks to facilitate large scale redevelopment. The President was just in New Orleans, and we will see over the next few months what happens on all of these fronts.

In some sense, we are also seeing an echo of the Kelo controversy, with utilitarian oriented, welfare maximizing urban planners battling moral rights oriented property owners. It will be interesting to see who wins, or, what would be better, if everyone can walk away claiming victory in the end.

John Lovett

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January 13, 2006 in Land Use, New Orleans | Permalink | Comments (0) | TrackBack (0)

Tax Breaks and the Redevelopment of Center City Philadelphia

Earlier this week, The New York Times had an article on the the role of tax breaks in the revitalization of Philadelphia:

AFTER years of losing population, the downtown region, known as Center City, is booming, with developments going up and old buildings being transformed into lofts and condominiums.

The construction, fueled by tax breaks, has succeeded in halting the city's 40-year population decline. Center City, which has the nation's third largest downtown residential population, behind New York and Chicago, is experiencing its fifth straight year of increased housing starts, both new and rehabilitated units. Center City's population grew to 88,000 by the end of 2005 from 78,000 in 2000. Even more striking, the number of households rose by 24 percent, according to figures compiled by the Center City District, a business-improvement group. . . .

[T]he tax-abatement programs have become somewhat controversial. While a small percentage of wealthier residents are living in high-end properties and are paying very little in taxes, a majority of the longtime residents who suffered through the bad years are likely to see their taxes go up as property values rise.

The Fels Institute at UPenn has published an analysis of the impact of tax breaks on new residential development that should be available here. [UPDATE:  Link now working]

Ben Barros

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January 13, 2006 in Land Use | Permalink | Comments (0) | TrackBack (0)

Cultural Property

Over at PrawfsBlawg, Mark Fenster has an interesting post on some theoretical issues relating to cultural property that came up at the AALS's Law & Anthropology panel discussion.

Ben Barros

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January 13, 2006 in Property Theory | Permalink | Comments (0) | TrackBack (0)

Thursday, January 12, 2006

Eminent Domain Writing Competitions

I was recently asked if I knew of any writing competitions open to law students that focused on eminent domain.  I am aware of one competition run by the Pacific Legal Foundation that tends to deal with takings issues.  Although the deadline is coming up, it is an annual competition.  Here are this year's topics:

TOPIC I:  In Kelo v. Town of New London, the Supreme Court announced that the government may use its power of eminent domain to forcibly transfer homes and other private property to third parties for development, if officials believe this will result in a public benefit. Some state legislatures have responded to Kelo by introducing bills to impose stricter limits on the use of eminent domain. What should be the appropriate test for determining whether a taking of private property through eminent domain is for a “public use,” as required by the Fifth Amendment and most state constitutions?

TOPIC II:  The Supreme Court stated in Penn Central Transportation Co. v. City of New York that “the character of the government action” is a relevant factor in determining whether a land-use regulation constitutes a “taking” requiring just compensation. Outside of the so-called categorical takings—regulations that authorize a permanent physical invasion or deprive a property of all value—what sort of considerations should favor a finding of takings liability under the “character” prong of Penn Central?

TOPIC III:  In Gonzales v. Raich, the Supreme Court upheld Congress’s authority under the Commerce Clause to ban the private, intrastate consumption of medicinal marijuana. How would the holding in Raich be applied in a case challenging the application of the Endangered Species Act to protect wholly intrastate species with no known commercial value?

The American Planning Association also runs a competition that would work for some aspects of eminent domain.

If you are aware of any other competitions, please leave a comment.

Ben Barros

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January 12, 2006 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Arguments in Norwood v. Horney

Over at the Volokh Conspiracy, Todd Zywicki has a very useful post on Norwood v. Horney, a Kelo-like eminent domain case that was just argued before the Ohio Supreme Court.  The Supreme Court's opinion in Kelo expressly made the (perhaps obvious) point that states could interpret their own constitutions to set a higher standard for public use, as the Michigan Supreme Court had done in the County of Wayne case, so that option is open to the Ohio Supreme Court.

Ben Barros

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January 12, 2006 in Recent Cases, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 11, 2006

Garnett on the Political Economy of Eminent Domain

Nicole Stelle Garnett was part of the same panel discussed in my last post, and gave a fascinating talk on compensation and eminent domain practices based on a paper that she has just posted on SSRN.  The title of the paper is What a Strange Place to Put a Church:  The Political Economy of "Just Compensation".  Here's the abstract:

The Supreme Court’s “public use” decision, Kelo v. New London (US 2005), has prompted dozens of proposals to reform eminent domain practices legislatively. Most of these proposals would restrict the use of eminent domain to transfer of property from one private individual to another. Noted legal scholars have proposed, however, compensation-based reforms as a wiser alternative to this prohibitory model. These suggestions flow naturally from the widely accepted belief that the constitutionally mandated fair-market-value compensation may undercompensate owners. This Article argues that the undercompensation problem likely has been overstated because scholars mistakenly have focused on the compensation required by the Constitution, rather than on the actual mechanics of the eminent domain process. Specifically, the Article examines three ways that “Takers” (i.e., non-judicial actors in the eminent domain process) may minimize undercompensation. First, Takers may simply avoid taking high-subjective-value properties. (By way of illustration, I examine evidence that expressway planners dodged Chicago’s urban Catholic churches.) Second, Takers may (and frequently are required to) pay more compensation in the form of “relocation assistance.” Third, during mandatory pre-condemnation negotiations, Takers and property owners may voluntarily settle on above-market compensation. (This part of the Article includes an empirical case study of the compensation paid by St. Joseph County, Indiana to purchase – under threat of eminent domain – several dozen residential properties for a facility to manufacture luxury H2 sport utility vehicles.)

The Article concludes by asking a natural question: If undercompensation is less of a problem than commonly assumed, is eminent domain reform really needed? The final Part argues that there are two problems, unique to takings raising “public use” questions that more money cannot solve: First, high compensation levels may undermine critical political resistance to questionable projects; second, private takings may generate high non-instrumental, dignitary harms that will persist even as compensation increases. These problems weigh in favor of some version of the prohibitory model of eminent domain reform currently dominating legislative debates.

The entire paper is terrific, but the discussion of Chicago's churches and the St. Joseph's County H2 plant are must reading for people interested in takings issues.

Ben Barros

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January 11, 2006 in Recent Scholarship, Takings | Permalink | Comments (1) | TrackBack (1)

What We Don't Know About Eminent Domain

At the AALS Property and Local Government Sections joint panel on public use, Vicki Been made an interesting presentation about what we don't know about the real-world application of eminent domain.  In the absence of empirical research on the subject, we don't really have much data on how eminent domain is used by government entities.  The need for empirical data is particularly important now that many legislatures are considering placing post-Kelo restrictions on municipal exercises of eminent domain.  Here's a list of the subjects Been suggested would be good candidates for empirical work:

The costs and benefits of actual uses of eminent domain.

What entity is doing the taking and who pays for the taking?

Is there a differences in eminent domain practices between states or within states?  If so, what explains those differences?

What is being taken?

Do the takings involve private-public partnerships?

What compensation is being paid, and how (and why) does it vary?

Has the use of eminent domain become more or less frequent?  If so, why?  Are municipal attempts at promoting infill development having an impact on the rates?

Why is eminent domain being used rather than a market transaction?  What does the bargaining process look like?  Who settles and who doesn’t?  What is the role of subjective value in the settlement process?  What does holdout problem actually look like?  Do tax issues factor in (e.g., when an exercise of eminent domain is more tax positive for the owner of property than a voluntary sale)?

Are economic development takings a good thing?  Can economic development be effectively done in a patchwork, voluntary fashion, without eminent domain?  What is the long term impact of redevelopment projects?  If restrictions are put on economic development takings, will that lead to more redevelopment projects based on blight?

To this list I'd add:  what is the impact of relocation on people, and is there a difference in this impact between people who are forced out and people who leave voluntarily?  I researched this issue for my Home as a Legal Concept article, and there really isn't that much out there beyond Marc Fried's "Grieving for a Lost Home," a study of people displaced from Boston's West End that was published in Leonard J. Duhl's book The Urban Condition (1963).

[UPDATE:  some text changed in response to a comment]

Ben Barros

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January 11, 2006 in Takings | Permalink | Comments (6) | TrackBack (1)

Rebuilding Mississippi's Gulf Coast

Witold Rybczynski has an interesting story today on Slate about land-use and design issues being considered by communities in Mississippi rebuilding after Katrina.  An excerpt:

In early October, only six weeks after Katrina and under the auspices of the Governor's Commission on Recovery, Rebuilding, and Renewal, a six-day planning and urban-design forum involving mayors, citizens, and local and visiting town planners, architects, and design professionals, developed plans for 11 affected coastal cities and towns. The aim was to rethink a number of issues, including how large commercial enterprises such as casinos and big-box stores could be better integrated into their urban surroundings, codes and plans that would help buildings withstand future hurricanes, and regional transportation. In Waveland, a small town near the Louisiana border, for example, the planning team suggested rebuilding devastated areas as mixed-use neighborhoods and proposed inner-block footpaths as well as a trolley line linking the town to other beach communities. This wish list will probably be only partially realized—and only over a long period—but the plan represents a sensible, down-to-earth vision and a useful guide for the recovery process.

Ben Barros

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January 11, 2006 in Land Use | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 10, 2006

Rethinking Commodification

Related to the subject of my last post, Martha Ertman (Law, Utah) and Joan Williams (Hastings) have a great new book called Rethinking Commodification from NYU Press:

What is the price of a limb? A child? Ethnicity? Love? In a world that is often ruled by buyers and sellers, those things that are often considered priceless become objects to be marketed and from which to earn a profit. Ranging from black market babies to exploitative sex trade operations to the marketing of race and culture, Rethinking Commodification presents an interdisciplinary collection of writings, including legal theory, case law, and original essays to reexamine the traditional legal question: “To commodify or not to commodify?”

In this pathbreaking course reader, Martha M. Ertman and Joan C. Williams present the legal cases and theories that laid the groundwork for traditional critiques of commodification, which tend to view the process as dehumanizing because it reduces all human interactions to economic transactions. This “canonical” section is followed by a selection of original essays that present alternative views of commodification based on the concept that commodification can have diverse meanings in a variety of social contexts. When viewed in this way, the commodification debate moves beyond whether or not commodification is good or bad, and is assessed instead on the quality of the social relationships and wider context that is involved in the transaction. Rethinking Commodification contains an excellent array of contemporary issues, including intellectual property, reparations for slavery, organ transplants, and sex work; and an equally stellar array of contributors, including Richard Posner, Margaret Jane Radin, Regina Austin, and many others.

Ben Barros

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January 10, 2006 in Books, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Organ Selling

My colleague David Raeker-Jordan pointed me to this very interesting story on organ selling that the Christian Science Monitor ran in June 2004.  From the introduction:

Every day, 17 Americans die of organ failure. In Israel, the average wait for a kidney transplant is four years. In response, a global gray market has bloomed. In India, for example, poor sellers are quickly matched with sick buyers from Taiwan. Critics call it "transplant tourism." Proponents say the market is meeting a need.

The Monitor follows three men: an unemployed Brazilian and an ailing Israeli, as well as a South African investigator who helped bust an organ-trafficking ring.

The case raises anew hard legal and ethical questions, such as: Who owns our bodies? Should it be illegal to sell an organ if it could save someone's life? What is the government's role in protecting two vulnerable groups - the poor, who are willingly exploited, and the sick, who are desperate for healing?

Ben Barros

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January 10, 2006 in Property Theory | Permalink | Comments (0) | TrackBack (0)

Monday, January 9, 2006

Alito Coverage

For those interested, Joe Hodnicki at the Law Librarian Blog has a roundup of coverage of Alito issues on the Law Profs Blog network.

Ben Barros

January 9, 2006 | Permalink | TrackBack (0)

Sunday, January 8, 2006

Peer-Edited Law Journals

In the coming weeks, Matt Bodie at PrawfsBlawg will be doing an interesting survey of peer-edited law journals:

In the upcoming weeks I will be writing about the specifics regarding peer-review law journals.  I'll be taking a sample of such journals and exploring a bit more about who they are and what they do.  For each journal, I'll be asking questions such as the following:

    • What is the process for submitting to the journal?
    • What types of articles does the journal publish?
    • Who runs the journal?
    • Who are the peer reviewers for the journal?
    • What does it mean to have your article published in that journal?

I look forward to reading Matt's forthcoming posts.  On a related subject, in a comment to his initial post, I wrote:

I'd be interested in your thoughts on why there don't seem to be more faculty-edited journals focused on the major common-law doctrinal areas. I'm a property person, and I'd love to see someone establish a faculty-edited property journal. My main working theory (for which I have absolutely no evidence) is that the established professors who could get a journal off the ground with some prestige (say, Carol Rose) are happy with the present system of student edited law reviews. Plus, editing is a lot of work.

I'm aware that the Real Property, Probate, and Trust Journal is peer-edited, but I have in mind something with a more academic focus.  If you have any thoughts on this issue, please leave a comment.

Ben Barros

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January 8, 2006 in Law Schools | Permalink | Comments (1) | TrackBack (0)

Blogging and Scholarship

Over at TaxProf Blog, Paul Caron has a recap of an interesting discussion at the AALS on the pros and cons of blogging and the relationship between blogging and scholarship.

Ben Barros

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January 8, 2006 in Law Schools | Permalink | Comments (0) | TrackBack (0)