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Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Friday, October 27, 2006

Welcome to the Blogosphere: Essentially Contested America

My colleague Bobby Lipkin has just started a new blog, Essentially Contested America.  Knowing Bobby, I'm sure it will be a very interesting and thought provoking read!

Ben Barros

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October 27, 2006 in Miscellaneous | Permalink | Comments (0) | TrackBack (0)

CCELP Analysis of Proposition 90

The California Center for Environmental Law and Policy has done an analysis of California's Proposition 90, a proposed amendment to the California Constitution that contains a Kelo-backlash public use limitation and a Measure 37-type regulatory takings compensation provision.  The public use limitation isn't very well worded, but seems okay to me.  The regulatory takings compensation provision is a disaster.  As I've noted here before, I'm not a big fan of regulatory takings legislation that sets a low bar on the level of diminution required for compensation.  My bigger problem with Proposition 90 is that the regulatory takings provision is very subtle and is wrapped up in language talking about eminent domain abuse and Kelo.  I doubt that even sophisticated voters are going to understand what they are voting for or against here.

Ben Barros

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October 27, 2006 in Takings | Permalink | Comments (0) | TrackBack (0)

Kettles on Formal and Informal Allocation of the Commons

Gregg Kettles (Mississippi College School of Law) has posted Formal Versus Informal Allocation of Land in a Commons: The Case of the MacArthur Park Sidewalk Vendors on SSRN.  Here's the abstract:

Sidewalk vendors are becoming a more common presence in cities in Latin America and the United States. Vendor demand for the best sidewalk vending spots increasingly exceeds supply, making necessary a system to allocate space in what is essentially an open access commons. This paper presents an empirical study of two very different systems of allocation that have been adopted in the city of Los Angeles, California, a formal one imposed by the city on legal vendors when they were unable to come up with one on their own, and a second that was embraced by illegal vendors across the street on an informal basis. The fact that illegal vendors were able to adopt any system at all, while a handful of legal vendors were unable to when given the same opportunity, is not what would have been predicted by social norms scholarship. Nor can it be attributed to the activities of local street gangs. Instead the respective success and failure of these two groups of vendors are best explained by Robert Sugden's game theory of spontaneous order. Turning to their relative merit, the illegal vendors' system of space allocation is superior, enjoying as it does a number of efficiencies. By contrast, the city's formal system suffers from a number of costs. It seems intent less on benefiting the community as a whole than on protecting storefront merchants from legitimate competition.

Ben Barros

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October 27, 2006 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, October 26, 2006

Tate on Ownership and Possession in the Early Common Law

Joshua C. Tate (SMU - Dedman School of Law) has posted Ownership and Possession in the Early Common Law on SSRN.  Here's the abstract:

Much has been written on the possible influence of Roman or canon law on the early English common law of property. Maitland thought that the canonist's actio spolii was the inspiration for the assize of novel disseisin. Sutherland argued that the assize borrowed from the Roman interdict unde vi. Milsom, by contrast, thinks that the early common-law writs must be understood within a feudal framework, and that the early common law took nothing from Roman law than the Latin language.

This Article offers a new perspective on ownership and possession in the early common law. It examines the theoretical development of proprietary and possessory concepts in the ius commune as it would have been understood in England in the late twelfth century, taking into account the Liber pauperum and the early ordines as well as reports of ecclesiastical court cases. After surveying the current debate, the Article then turns to the advowson writs, which have not yet been studied as a possible example of Roman law influence. Finding some evidence of the ownership/possession distinction in the advowson writs, the Article comes to the conclusion that the possibility of influence from the ius commune is greater than Milsom thinks.

Ben Barros

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October 26, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 25, 2006

Welcome Back, Rick

As noted in the post immediately below, Rick Duncan will be posting regularly here on (among other things) religious land use issues.  We're delighted to have him back after his great visit of a few weeks ago.

Ben Barros

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October 25, 2006 in About This Blog | Permalink | Comments (0) | TrackBack (0)

First Amendment Center Defends Religious Exemptions In Response to NY Times

Over at the First Amendment Center, Charles Haynes responds to the recent NY Times series that expressed concern about the legitimacy of religious exemptions from regulatory restrictions. Here is a key excerpt:

The village of Suffern, N.Y., treats Orthodox Jews just like everyone else — and that’s why it’s being sued by the U.S. Department of Justice for religious discrimination.

Equal treatment, it turns out, sometimes keeps the faithful from practicing their faith.

Orthodox Jews, for example, can’t drive on the Sabbath or other holy days. So a Jewish service agency in Suffern built a “Shabbos House” across from the hospital, giving believers a place to stay while visiting patients (the nearest hotel is more than three miles away).

But since the Shabbos House is in an area zoned for single-family homes, the Jewish group requested — and was denied — a zoning variance. Now both the Jewish agency and the federal government have filed suit, claiming the denial unlawfully burdens the Jewish community’s free exercise of religion.

The Suffern conflict is one of many similar disputes across the country. Last month, for example, the 6th U.S. Circuit Court of Appeals heard oral arguments in a case involving the Okemos Christian Center. The church wants to build a larger structure to hold an expanding congregation, but it can’t because of zoning restrictions in Meridian Charter Township, Mich. Although the church prevailed in a lower court, the town appealed the decision.

Cases like these are part of a growing national debate over religious exemptions to laws and regulations concerning everything from zoning to taxes. What critics (including many local officials) disparagingly call “special treatment,” religious groups describe as needed protections for religious freedom.

Although the Times editors believe that the NYT "series showed that the wall between church and state is being replaced by a platform that raises religious organizations to a higher legal plane than their secular counterparts," religious exemptions from restrictive laws actually protect the wall between church and state by ensuring that the state cannot breach the wall to impose substantial burdens on religious freedom. As Haynes puts it, the Times and other critics may call it "special treatment," but "our Framers called it religious freedom."

With Ben's kind permission, I will be serving as a kind of roving religious land use reporter for PropertyProf for the foreseeable future. I look forward to this assigment.

Rick Duncan

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October 25, 2006 | Permalink | Comments (0) | TrackBack (0)

CSM on Takings Initiatives

The Christian Science Monitor has a thoughtful commentary piece on takings initiatives that, among other things, comes down against "regulatory taking" initiatives like Oregon's Measure 37.  Thanks to John Rooney for the tip.

Ben Barros

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October 25, 2006 in Takings | Permalink | Comments (0) | TrackBack (0)

Monday, October 23, 2006

Clowney on Churches and Zoning

Stephen Clowney (Yale Law School) has posted An Empirical Look at Churches in the Zoning Process on SSRN.  Here's the abstract:

Using data from New Haven, Connecticut, this study attempts to examine empirically whether churches face discrimination in the zoning context. Specifically, in this paper I scrutinize local government records to determine whether religious institutions are treated fairly in the zoning appeals process. This study contributes to the ongoing discussion over the regulation of religious land uses by answering two questions. First, to what extent does the Board of Zoning Appeals treat churches differently from secular applicants? Second, are there disparities between the fates of small religious sects and mainstream denominations in applications for zoning exemptions? My research casts some doubts upon the dominant narrative, which suggests churches have been routinely victimized by local zoning boards.

Ben Barros

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October 23, 2006 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Glaeser and Ward on Land Use Regulation

Edward L. Glaeser (Harvard - Kennedy School) and Bryce Adam Ward (Harvard University) have posted The Causes and Consequences of Land Use Regulation: Evidence from Greater Boston on SSRN.  Here's the abstract:

Over the past 30 years, eastern Massachusetts has seen a remarkable combination of rising home prices and declining supply of new homes. The reductions in new supply don't appear to reflect a real lack of land, but instead reflect a response to man-made restrictions on development. In this paper, we examine the land-use regulations in greater Boston. There has been a large increase in the number of new regulations, which differ widely over space. Few variables, other than historical density and abundant recreational water, reliably predict these regulations. High lot sizes and other regulations are associated with less construction. The regulations boost prices by decreasing density, but density levels seem far too low to maximize total land value.

Ben Barros

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October 23, 2006 in Land Use, Recent Scholarship | Permalink | Comments (1) | TrackBack (0)