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Friday, April 13, 2007

Somin on Post-Kelo Reform and the Poor

Ilya Somin (George Mason) has posted Is Post-Kelo Eminent Domain Reform Bad for the Poor? on SSRN.  Here's the abstract:

Since the Supreme Court decided Kelo v. City of New London in June 2005, some 35 states have enacted eminent domain reforms laws. In his recent Northwestern University Law Review Colloquy article, which I have been asked to comment on, Professor David Dana argues that most post-Kelo reform efforts are seriously flawed because they tend to forbid the condemnation of the property of the wealthy and the middle class for “economic development,” but allow the condemnation of land on which poor people live under the guise of alleviating “blight.” This, he claims, ensures that the reforms enacted in numerous states “privilege . . . the stability of middle-class households relative to the stability of poor households” and “express . . . the view that the interests and needs of poor households are relatively unimportant.” I agree with Professor Dana that the problem of blight condemnations and its impact on the poor deserve greater attention but take issue with his argument that post-Kelo reform efforts have systematically treated the poor worse than middle and upper class homeowners.

Most of the states that have enacted post-Kelo reform laws have either banned both blight and economic development takings or defined “blight” so broadly that virtually any property can be declared “blighted” and taken. Several others have enacted reforms that provide no real protection to any property owners because of other types of shortcomings. Only nine states are actually guilty of allowing only the condemnation of “blighted” areas, narrowly defined. Even these nine flawed reforms are probably better for the poor than no reform at all. Such a law might benefit many poor people who live in non-blighted areas and are potentially vulnerable to economic development takings. Survey data suggests that the poor themselves overwhelmingly oppose economic development condemnations, suggesting that they are not much concerned about the “expressive harms” that worry Professor Dana. Finally, the exclusion of blighted property from the ban on “economic development” condemnations in some states is not necessarily explained by indifference to or contempt for the interests of the poor. It could also be the result of other factors, such as voter ignorance about the actual effects of blight condemnations.

Ben Barros

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April 13, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Claeys on Epstein's Takings

Eric Claeys (St. Louis University) has posted Takings: An Appreciative Retrospective on SSRN.  Here's the abstract:

This Essay contributed to a conference held at William and Mary Law School at which Richard Epstein was awarded the 2005 Brigham-Kanner Property Rights Prize. The Essay surveys the legacy of Epstein's 1985 book Takings: Private Property and the Power of Eminent Domain.

Doctrinally, Takings was provocative because it provided a persuasive roadmap by which originalist judges might revive natural-law-based property and contract rights often associated with Lochner v. New York. However, this possibility was always somewhat overdrawn. On one hand, most judges and academics are not originalists but functionalists, and they reject Epstein's classical-liberal property theory on substantive grounds. On the other, serious originalists question the textual foundations for Epstein's project, because they doubt that the Takings Clause applies to the states by substantive due process incorporation. This section closes by considering briefly whether Takings' doctrinal claims might be grounded in the original meaning of the Fourteenth Amendment Privileges or Immunities Clause.

Takings has done far more to affect legal property theory. When Takings was written, the U.S. Supreme Court and academic opinion leaders subscribed uniformly to bundle of rights property theory, which had been developed by Legal Realists in the 1920s to facilitate relatively interventionist theories of government. Takings' most important legacy was to make accessible and respectable again, in contemporary legal academic jargon, the unitary theory of property applied by American natural-law jurists and replaced by the Realist bundle of rights. This section criticizes Epstein for using welfarist utilitarianism to replace the natural-law foundations on which Lochner cases and jurists relied to justify the unitary theory of property. But the Essay concludes by praising Epstein for helping contemporary legal academics appreciate the demands that a classical-liberal understanding of freedom places on property.

Ben Barros

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April 13, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 11, 2007

European Human Rights Case on Frozen Embryos

From the BBC:

Natallie Evans, from Trowbridge, Wilts, and Howard Johnston began IVF treatment in 2001 but he withdrew consent for the embryos to be used after they split up.

She turned to the European courts after exhausting the UK legal process.

Ms Evans, 35, said she was "distraught" after the Grand Chamber of the European Court ruling, but Mr Johnston said "common sense had prevailed".

Ms Evans was diagnosed with ovarian cancer in 2001, but six of the couple's fertilised embryos were frozen and stored prior to her treatment.

But she and Mr Johnston, who lives in Gloucester, split up in 2002 and he wrote to the clinic asking for the embryos to be destroyed.

Ms Evans took the case to the High Court in 2003 asking to be allowed to use them without Mr Johnston's permission.

She has argued he had already consented to their creation, storage and use, and should not be allowed to change his mind.

Current UK laws require both the man and woman to give consent, and allows either party to withdraw that consent up to the point where the embryos are implanted.

Ms Evans lost both the case and the appeal and was told she could not take the case to the House of Lords.

Mr Johnston said common sense had prevailed

She then appealed to the European Court of Human Rights, which again ruled against her a year ago.

Her appeal to the Grand Chamber of the European Court under three articles of the European Convention of Human Rights represented her last chance to save the embryos.

The court ruled unanimously that there had been no breach of the right to life, but on the right to respect for private and family life and on the prohibition of discrimination the 17 judges ruled 13 to four.

Ben Barros

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April 11, 2007 in Property Theory | Permalink | Comments (1) | TrackBack (0)

Tuesday, April 10, 2007

Lax Lending and the Housing Bubble

The Washington Post has an interesting article on the role of lax lending standards in the development of the housing bubble.  Hat tip:  David Bernstein at the VC, who has been tracking this issue for a while.

Ben Barros

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April 10, 2007 in Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)