PropertyProf Blog

The Latest on the Machu Picchu Artifacts

We've been following this story for a long time.  The Yale Daily News is now reporting a change in Peru's attitude towards the return of artifacts that Yale professor Hiram Bingham III excavated from Machu Picchu in the early twentieth century.  Basically, Peru wants the artifacts back sooner.  (Close readers of propertyprof may recall that I'm most interested in Mr. Bingham's grandfather, Hiram Bingham, who was a missionary to Hawaii in the middle of the nineteenth century.)

Alfred Brophy

Epstein on Didden

Richard Epstein has an opinion piece on Didden v. Port Chester and the general issue of public use.  HT:  Ilya Somin.

Ben Barros

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Claeys on Law & Econ v. Natural Property Rights

Eric Claeys (George Mason) has posted Jefferson Meets Coase: Land-Use Torts, Law and Economics, and Natural Property Rights on SSRN.  Here's the abstract:

In tort scholarship, conventional wisdom assumes that economic analysis explains doctrine more determinately than philosophical analysis. This Article challenges that assumption, using land-use torts as a point of contact.

The Article studies cattle trespasses, pollution nuisances, train-sparks cases, and other basic rules of tort liability Ronald Coase popularized in The Problem of Social Cost. The Article compares standard economic analyses of these torts against an interpretation that follows from the natural-rights theory that informed the content of these torts when "tort" was forming into a single field of legal study. The "Jeffersonian" natural-rights theory predicts the contours of doctrine more determinately and accurately than "Coasian" economic analysis. It also anticipates and finesses a significant normative challenge to Coasian economic tort analysis - its tendency to demand that triers of fact process unrealistically volatile and fact-specific information to prescribe legal results.

The comparison teaches that conventional impressions about tort philosophy and economics have been misguided in at least three important respects. First, in a significant swath of doctrine, Jeffersonian natural-rights moral theory shapes the contours of tort quite determinately. Second, if philosophical tort scholarship has a bad reputation for being indeterminate, it does so at least in part because it has chosen to focus on the general corrective-justice architecture of tort - to the exclusion of specific theories of political morality informing particular doctrines. Finally, standard economic tort analysis cannot prescribe determinate results without making simplifying assumptions more characteristic of moral philosophy than of social science.

Ben Barros

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Lewyn on Five Myths About Sprawl

Michael Lewyn (Florida Coastal) has posted Five Myths About Sprawl on SSRN.  Here's the abstract:

In Sprawl: A Compact History, Robert Bruegmann, an art historian, has painted a superficially convincing case for the status quo, asserting that sprawl is "a natural result of affluence that occurs in all urbanized societies." Bruegmann's book has generated glowing media publicity. This article suggests that Bruegmann overestimates the universality of sprawl, by overlooking the differences between pedestrian-friendly cities with some sprawling development and cities in which automobile-dependent sprawl is the only choice available to most consumers. In addition, Bruegmann understates the harmful social effects of sprawl, especially the effect of automobile-dependent development upon non-drivers. Bruegmann also consistently underestimates the role of government spending and regulations in creating sprawl and, as a result, fails to adequately discuss the possibility that sprawl can be reduced by limiting, rather than increasing, the size and intrusiveness of government.

Ben Barros

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Anderson on Zoning Board Composition

Jerry L. Anderson (Drake University Law School) has posted A Study of American Zoning Board Composition and Public Attitudes Toward Zoning Issues on SSRN.  Here's the abstract:

In the United States, many important land use decisions are made, at least in the first in-stance, by administrative bodies composed of local citizens, appointed by the mayor or city council. These boards, typically designated the Planning and Zoning Commission and the Board of Zoning Adjustment, are often suspected of favoritism and bias, in exer-cising authority ranging from the adoption of comprehensive land use plans and zoning amendments to granting variances or special use permits. However, courts routinely give board decisions great deference, adopting a presumption of validity based on the notion that these boards are composed of the proper representatives of the community.

In order to test that assumption, we surveyed the nation‘s largest cities to determine the occupations of their zoning board members. The results indicate that zoning boards are dominated by citizens with white-collar occupations. About three-quarters of zoning board members hold professional, technical or managerial jobs, despite comprising only a third of the national workforce. In addition, over 30% of board members have a direct interest in property development.

To determine the potential effects of this occupational skew, we conducted a survey of citizens to determine whether their attitudes toward controversial land use issues vary ac-cording to demographic factors, including occupation. We found significant differences, although not always in ways we expected. In the end, these results indicate that cities should attempt to appoint a broader cross-section of the community to zoning boards. Although planners, lawyers, and other professionals were necessary in the past, we question whether particular expertise is necessary to accomplish the tasks assigned to modern zoning boards. Finally, if zoning boards continue to be dominated by interest groups, courts may need to reconsider the deference they typically grant to board decisions.

Ben Barros

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