Friday, September 8, 2006

Takings in Venezuela

Ben's link to Ilya Somin's post on Volokh reminded me that last Sunday's New York Times carried an article describing the proposed seizure of two posh private golf clubs in Caracas for conversion into housing for the poor.  The article also describes the seizure of apartment complexes and other buildings from their private owners to provide accommodations for the poor and lower-middle classes of Caracas.  "Just and opportune" compensation is afforded, says a government official.  Were this to occur in the US, there is no doubt that such seizures, accompanied by just compensation, would be for a public use.  The interesting twist is to note the effect on Caracas's housing market: "Landlords have flooded the market with aprtments for sale, fearful of the measures, some in effect and others under consideration, that would allow more expropriations and bolster the rights of tenants and squatters.  Rentals are so scarce that rents have skyrocketed to as much as $7,000 a month for a three- or four-bedroom apartment near the two golf courses." 

Calvin Massey

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September 8, 2006 in Land Use, Takings | Permalink | Comments (0) | TrackBack (0)

Taking From the Rich to Give To The Rich

Ilya Somin at the VC has a very interesting post on the attempted use of eminent domain to take a private golf course to make it available to residents of a wealthy Long Island town.

Ben Barros

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September 8, 2006 in Takings | Permalink | Comments (0) | TrackBack (0)

Thursday, September 7, 2006

Reparations Pro and Con

Reparationsproandcon_1 Been at APSA and finishing up some stuff on monument law, aloha jurisprudence, and the latest on rankings (of secondary journals) and on the implications of bar pass rates for ranking of law schools.  So I've been quiet.  I'll be talking more about some of that stuff shortly.

Because Reparations Pro and Con is now available I thought I'd post a little about it.  As I said back in June when I finished up reading the page proofs,  it's a book I struggled with for a number of years and the more I think about reparations, the more complex they seem to become. Reparations talk involves lots of issues central to American history and to law.  It reminds me of the statement of Joe Strummer, formerly of The Clash, which was widely publicized at the time of his death in December 2002, that "If you ain't thinkin' about [hu]man[s] and God and law, then you ain't thinkin' about nothin'."  Reparations talk combines all three of those and a lot more.

My favorite parts of Reparations Pro and Con are the beginning and the end--because the beginning sets up many of the issues at stake in reparations talk and the end pulls the strings together and tries to guess where this is all going.  It's about the gap between white and black wealth and about how we view American history: as a place of opportunity or oppression?  And how we think about opportunities today, as well.  There's a lot of other stuff in between--like what role, if any, the government should play in correcting for past injustices and whether it is fair to ask those who did not commit racial crimes to help correct the vestiges of them now. For propertyprofs, there are some great meta-issues, like the judiciary's role in taking land away from Native Americans

I think the reparations movement is moving in the direction of talking about the past, rather then asking for any kind of payments. So I'm predicting we're going to see more in the way of truth commissions, like the 1898 Wilmington Riot Commission and the Tulsa Riot Commission.  Some of this may happen through the work of individual historians (like Reconstructing the Dreamland).  And I think we're going to see more in the way of businesses and colleges investigating their past (like Brown University's Steering Committee on Slavery and Justice and the discussion at the University of Virginia about slavery on its campus).

Of course, there's a lot more in the book, including a chapter on the case against reparations and a little bit on cemeteries (and here) and monuments.  I hope you'll take a look at it and recommend it to your local library.  Here some more on the book at Oxford's website.

Alfred L. Brophy
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September 7, 2006 in Books | Permalink | Comments (1) | TrackBack (1)

Wednesday, September 6, 2006

Dehring and Halek on Building Codes and Hurricane Damage

Carolyn A. Dehring and Martin Halek (both of the University of Georgia) have posted Do Coastal Building Codes Mitigate Hurricane Damage to Residential Property? on SSRN.  Here's the abstract:

In this paper we explore whether increased coastal building standards imposed by federal and state level initiatives are effective in mitigating losses to coastal property. We first examine if the coastal building code regime under which a property is constructed affects the likelihood of hurricane induced residential property damage. Then, for those properties which incur hurricane damage, we examine whether the extent of damage is explained by the relevant coastal building code regime. Our analysis shows that those properties built following coastal building code changes associated with the National Flood Insurance Program were more likely to sustain damage relative to similarly located pre-National Flood Insurance Program construction. For those damaged properties, we find the extent of damage is greater for post-National Flood Insurance Program construction, where damage is increasing in the required base flood elevation. Our findings that federal and state mandated coastal building codes changes are ineffective as ex-ante mitigation of property losses from hurricanes are of significant concern, especially as population growth and real estate development continue in high risk coastal areas.

Ben Barros

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September 6, 2006 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Kowal on Just Compensation

Tim Kowal (Chapman University School of Law) has posted The Restitutionary Approach to Just Compensation on SSRN.  Here's the abstract:

In the wake of the Court's near-total refusal to impose a check on the legislature through the public use clause, this paper discusses whether any confidence in our property rights be restored through the just compensation clause in the form of restitutionary compensation, rather than the traditional, and myopic, "fair market value" standard. This paper discusses the historical presumption against restitution, elucidated through Bauman v. Ross over a century ago, is founded upon (1) the idea that the public should not be made to pay any more than necessary to effect a public project, and (2) the idea that the public utility of the project flows to the condemnee, providing him with value.

Determining just compensation is not merely the second half of the inquiry; in certain instances, it is an inextricable component of determining when a public use in fact exists, assuming a cost-benefit model. By analyzing condemnations that fail the public use standard set forth in the Michigan Supreme Court's County of Wayne v. Hathcock - that is, takings that generate only nonspecific and attenuated public benefits - we find that not only have the traditional policies against restitution been erased, but unless the project provides enough surplus gain to pay restitution to the condemnee, the project would not be feasible to begin with, and thus not in the public interest.

The paper also addresses the following question: once the developer is adequately incentivized to proceed with a publicly useful project, to whom do the surplus gains owe? Analyzing the utilitarian considerations of public interest, the property rights of the owner, and Lockean labor theory, the paper concludes that the condemnee is the only one with an cognizable claim to the surplus gains of the forced transfer.

Ben Barros

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September 6, 2006 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Monday, September 4, 2006

More on Option ARMs

The cover story in this week's Business Week is about Option ARMs, a type of mortgage that I've posted on before.  The article is a little shrill, but has a good overview of the economics behind a mortgage that is very likely to lead to a large number of mortgage defaults over the next few years.

Ben Barros

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September 4, 2006 in Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)