PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Friday, February 17, 2006

Christie on Comparative Takings

Donna R. Christie (Florida State University - College of Law) has posted A Tale of Three Takings: Taking Analysis in Land Use Regulation in the United States, Australia and Canada on SSRN.  Here's the abstract:

The roots of the legal systems of the United States, Australia and Canada spring from a common English heritage in which protection of property is a prominent feature. Within these societies, when government expropriates private property, there is a presumption and, in some cases a constitutional compulsion to compensate the owner. In the 1920s, the United States Supreme Court deviated from the principle in American and English law that compensation is required only when a government acquires a legal interest in or takes possession of property. In Pennsylvania Coal Co. v. Mahon, the Supreme Court found that regulating the use of property, in that case Pennsylvania Coal's mineral rights, may also require compensation if the regulation goes too far. Claims of regulatory taking did not become common, however, until the 1970s when land use and environmental regulation became pervasive. Property rights advocates, not only in the United States but also in Australia and Canada, sought more extensive protection when these regulations seriously devalued or limited the use of land. By the 1990s, cases in both Australia and Canada seemed to follow the lead of Mahon by requiring compensation for land use regulations that seriously devalued mineral rights. This paper surveys and compares the development of the concept of regulatory taking in the United States, Australia and Canada, and discusses each country's struggle to balance important public interests reflected in land use and environment regulation with protection of private property and to develop a consistent theory of regulatory taking.

Ben Barros

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February 17, 2006 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 15, 2006

Favorite Property Cases To Teach

In a comment to my last post, Al Brophy had the very good idea of taking an informal survey of property profs' favorite cases to teach.  Mine are Popov v. Hayashi (which I do the first day of class, right after Pierson v. Post), Moore v. Regents and Kelo (which I covered last year before the S.Ct. decided the case).  Other candidates include two from Judge Kozinski:  Kremen v. Cohen and White v. Samsung.  If you have a favorite or favorites, please leave a comment.

Ben Barros

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February 15, 2006 in Teaching | Permalink | Comments (10) | TrackBack (1)

Theory In First Year Property

So yesterday was ABA inspection day here in Harrisburg.  On Tuesdays, I teach both Bus Orgs and Property 2 (the second half of our full-year 6-credit property course).  Arthur Gaudio, the chair of the inspection team and a serious property expert, sat in on both classes.  In Property, I covered Moore v. Regents, which is probably the most fun case to teach in the first year Property curriculum.  You might ask why I was teaching Moore in the middle of Property 2, rather than at the beginning of the course where most texts (including D&K, which I use) put the case.  The answer is that this year, I've moved the entire theory unit to go right before nuisance, which is where the economic theory (Coase, Externalities, Demsetz, Property Rules v. Liability Rules, etc.) has the most impact.  It seems to be working well so far, in part because my students are better equipped to discuss theory issues after having had a semester of property law as background.

Ben Barros

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February 15, 2006 in Teaching | Permalink | Comments (2) | TrackBack (0)

Monday, February 13, 2006

Heald and Smith on Genetic Modification and Social Cost

Paul J. Heald and James Charles Smith (both of the University of Georgia Law School) have posted The Problem of Social Cost in a Genetically Modified Age on SSRN.  Here's the abstract:

Genetically modified pollen drifting onto the field of a neighboring farm may cause substantial harm. If the bystanding farmer is growing non-genetically modified crops, she may suffer a pecuniary loss due to genetic 'pollution'. If the pollen is patented, the patentee may also claim harm stemming from the unauthorized distribution of its proprietary genetic material. Disputes arising from pollen drift present classic legal questions arising under the law of neighbors and classic economic questions broached most famously by Ronald Coase in his essay on The Problem of Social Cost. The application of the Coase Theorem and its most applicable corollary strongly suggest that: 1) balancing rules under nuisance law should be applied on a case-by-case basis to determine whether any particular genetic polluter should be liable for damages caused by pollen drift; and 2) most bystanding farmers should have viable defenses to patent infringement. Venerable legal principles applied to this new problem suggest the same two conclusions. Proving both propositions provides a textbook demonstration for the usefulness of economic analysis and solves a world-wide multi-billion dollar legal problem.

Ben Barros

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February 13, 2006 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Dehring and Lind on Zoning and Covenant Interactions

Carolyn A. Dehring (University of Georgia - Department of Insurance, Legal Studies, Real Estate) and Melissa Lind (University of Texas at Arlington) have posted Residential Land Use Controls and Land Values: Zoning and Covenant Interactions on SSRN.  Here's the abstract:

Residential land use in urban areas can be constrained by zoning or restrictive covenants. When covenants and zoning exist simultaneously, covenants can facilitate an efficient allocation of high restriction and low restriction residential land. However, covenants cannot remedy deadweight loss resulting from zoning that over allocates land to high restriction use. We examine subdivided, vacant residential lot sales from two residential zones which differ in both minimum lot size and the minimum square feet of house. Our findings of a negative price effect from covenant use in the more restricted zone suggest that developers over-supply private restrictions.

Ben Barros

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February 13, 2006 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)