PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Friday, June 8, 2007

Monuments and Slavery in Washington's Philadelphia

Thanks to Ann Bartow for pointing out this story on a passage-way that archeologists have found during excavation of George Washington's house in Philadelphia.  They speculate that slaves used it to enter the house.  As the AP story reports:

The underground passageway is just steps from the Liberty Bell and Independence Hall. It was designed so Washington's guests would not see slaves as they slipped in and out of the main house.

There's a controversy (or at least discussion) about what to do with this new find--fill it in or preserve it:

The findings have created a quandary for National Park Service and city officials planning an exhibit at the house. They are now trying to decide whether to incorporate the remains into the exhibit or go forward with plans to fill in the ruins and build an abstract display about life in the house.

This is the second time this year we've spoken about property-related issues and slavery in Philadelphia.

Much more on the house is available here.

Al Brophy

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June 8, 2007 | Permalink | Comments (0) | TrackBack (0)

Thursday, June 7, 2007

Blumm and Bosse on Norton v. SUWA

Michael C. Blumm and Sherry Bosse (Lewis & Clark) have posted Norton v. SUWA and the Unraveling of Federal Public Land Planning on SSRN.  Here's the abstract:

In 2004, in Norton v. Southern Utah Wilderness Association (SUWA), a unanimous Supreme Court ruled that environmentalists could not obtain injunctive relief against the failure of the Bureau of Land Management (BLM) to regulate growing off-road vehicle (ORV) use in federal wilderness study areas in Utah, despite a statutory directive that BLM prevent “impairment” of such areas, and despite BLM's promises in its land plan that it would monitor ORV use and close the areas if warranted. Justice Scalia's opinion for the Court acknowledged that the Administrative Procedure Act authorizes federal courts to compel action in the face of agency inaction, but decided that BLM's failure to act to prevent impairment was not actionable because Congress had not directed BLM to take a “discrete” action, instead leaving the agency with considerable discretion as to how to prevent impairment. The decision in SUWA has produced widespread ramifications: federal land managers have employed it to successfully insulate from judicial review a wide variety of federal actions as well as inactions. Moreover, the Bush Administration seized upon the decision as a justification for redefining national forest land plans as aspirational in nature, without any making any binding commitments as to particular authorized activities or land suitability. The Administration also moved to eliminate environmental review of national forest plans, claiming that under its redefinition plans produce no environmental effects, an effort that was subsequently stalled by the courts.

This article discusses these developments, maintaining that they are inconsistent with the congressional commitment to federal land planning made in 1976 in both the Federal Land Management and Policy Act and the National Forest Management Act. Thirty years ago, Congress created modern federal land planning as the cornerstone of greater public involvement in public land decisionmaking. SUWA and its aftermath have destroyed that vision, making public land plans virtually irrelevant and a large waste of taxpayer dollars. If effective public participation in federal land planning requires that the public be able to enforce the promises made in land plans, Congress must amend the authorizing statutes to restore federal land plans as legally significant commitments of public resources.

Ben Barros

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June 7, 2007 in Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Shiller on Real Estate Turning Points

Robert J. Shiller (Yale University - Cowles Foundation) has posted Historic Turning Points in Real Estate on SSRN.  Here's the abstract:

This paper looks for markers of ends of real estate booms or busts. The changes in market psychology and related indicators that occurred at real estate market turning points in the United States since the 1980s are compared with changes at turning points in the more distant past. In all these episodes changes in an atmosphere of optimism about the future course of home prices, changes in public interpretation of the boom, as well as evidence of supply response to the high prices of a boom, are noted.

Ben Barros

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June 7, 2007 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 5, 2007

Dagan on Re-Imagining Takings Law

Hanoch Dagan (Tel Aviv University) has posted Re-Imagining Takings Law on SSRN.  Here's the abstract:

Takings law, composed of the law of eminent domain and the regulatory takings doctrine, is correctly understood as one of property's most defining features. As such, it attracts the attention not only of lawyers and judges but also of property theorists and political philosophers. This thick literature tends to fall into rather predictable and, I argue, quite disappointing camps. Libertarian authors maintain that compensation should be required each time the taking's impact on the owner is disproportionate to the burden, if any, carried by other beneficiaries of the intended public use of the public action at hand. Their liberal opponents, who hold that property should serve not only liberty but also such values as social responsibility and distributive justice, seek to restrict the range of takings law as much as possible. They imply that the connection between takings and these competing values is simple: social responsibility and distributive justice are better served when the doctrines of eminent domain and regulatory takings become increasingly limited. This debate is now deadlocked.

This essay seeks to re-imagine a truly liberal takings doctrine, which deviates dramatically from the positions of both camps. Unlike the former, it disputes the desirability and even the intelligibility of both the notion that ownership should only promote individual liberty and the strict takings doctrine said to follow this libertarian utopia. Unlike the latter, it insists that takings law should not fall back to a doctrine of no, or almost no, compensation that, I will argue, is counter-productive to the very commitment to social responsibility and distributive justice. Rather, in order to successfully integrate social responsibility and distributive justice into takings doctrine, and also other important property values such as autonomy, personhood and utility, we need to opt for a regime of partial and differential compensation, drawing careful (and rule-based) distinctions between types of injured properties and types of benefited groups.

I read this very interesting essay last week.  Highly recommended!

Ben Barros

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June 5, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Monday, June 4, 2007

Banzhaf on Undeveloped Lands on Urban Outskirts

H. Spencer Banzhaf (Georgia State University - Department of Economics) has posted Public Benefits of Undeveloped Lands on Urban Outskirts: Non-Market Valuation Studies and Their Role in Land Use Plans on SSRN.  Here's the abstract:

Over the past three decades, the economics profession has developed methods for estimating the public benefits of green spaces, providing an opportunity to incorporate such information into land-use planning. While federal regulations routinely require such estimates for major regulations, the extent to which they are used in local land use plans is not clear. This paper reviews the literature on public values for lands on urban outskirts, not just to survey their methods or empirical findings, but to evaluate the role they have played - or have the potential to play in actual land use plans.

Based on interviews with authors and representatives of funding agencies and local land trusts, it appears that academic work has had a mixed reception in the policy world. Reasons for this include a lack of interest in making academic work accessible to policy makers, emphasizing revealed preference methods which are inconsistent with policy priorities related to nonuse values, and emphasis on benefit-cost analyses. Nevertheless, there are examples of success stories that illustrate how such information can play a vital role in the design of conservation policies.

Ben Barros

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June 4, 2007 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (1)