PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Thursday, May 22, 2008

Hamilton from Chicago-Kent to Illinois

According to Brian Leiter, property prof Dan Hamilton is moving from Chicago Kent to the University of Illinois.

Ben Barros

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May 22, 2008 in Teaching | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 21, 2008

Carillo on ARMs

Jo J. Carrillo (Hastings) has posted Dangerous Loans: Consumer Challenges to Adjustable Rate Mortgages on SSRN. Here's the abstract:

This article analyzes the relationship between innovative mortgage
products, like adjustable-rate mortgages, and the first wave of consumer legal
challenges brought against those products under the Truth in Lending Act
(TILA), 15 U.S.C. section 1601, et seq. (TILA).

Ben Barros

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May 21, 2008 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Davies on Assured Supply Laws

Lincoln Davies (Utah) has posted Just a Big, 'Hot Fuss'? Assessing the Value of Connecting Suburban Sprawl, Land Use, and Water Rights Through Assured Supply Laws on SSRN.  Here's the abstract:

States and localities increasingly recognize the need to link land use and water supply planning. As the populace grows and sprawl continues, the strain on available natural resources, particularly water, makes this recognition all the more important. This Article addresses an increasingly common type of this planning link "assured supply" laws that require developers to prove they have secured adequate water stock before commencing construction. The Article performs a qualitative analysis of the potential benefits and costs of such laws and finds that, on balance, assured supply laws provide at least five significant benefits: consumer protection, greater holistic project- and agency-level planning, improved efficiencies in water rights allocation, and increased water conservation. Notably, however, these laws appear to do very little to diminish sprawl and, if designed incorrectly, may actually exacerbate it. The Article then extracts five dimensions around which localities might design their assured supply laws to maximize their benefits and minimize possible costs, concluding that such laws are most likely to deliver optimal benefits when they are (1) mandatory, (2) stringent, (3) statewide, (4) broadly applicable, applying to more than only large projects, and (5) interconnected with broader land-water and environmental lanning mechanisms.

Ben Barros

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May 21, 2008 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, May 19, 2008

Heller and Hills on Land Assembly Districts

Dan Kelly's response (see post below) reminded me that the Harvard Law Review has posted Land Assembly Districts, by Michael Heller (Columbia) and Rick Hills (NYU), online.  Here's the abstract:

Eminent domain for economic development is both attractive and appalling. States need the power to condemn because so much land in America is inefficiently fragmented. But public land assembly provokes hostility because vulnerable communities get bulldozed. Courts offer no help. The academic literature is a muddle. Is it possible to assemble land without harming the poor and powerless? Yes. This Article proposes the creation of Land Assembly Districts, or “LADs.” This new property form solves the age-old tensions in eminent domain and shows, more generally, how careful redesign of property rights can enhance both welfare and fairness. The economic and moral intuition underlying LADs is simple: when the only justification for assembly is over-fragmentation of land, neighbors should be able to decide collectively whether their land will be assembled. Our legal theory solution is equally simple: use property law to retrofit communities with a condominium-like structure tailored to land assembly. Let’s try giving those burdened by condemnation a way to share in its benefits and to veto projects they decide are not worth their while.

Ben Barros

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May 19, 2008 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Two by Kelly

Daniel B. Kelly (Olin Fellow, Yale) has posted two pieces on eminent domain on SSRN.  They are:

The Limitations of Majoritarian Land Assembly 

In their article, Land Assembly Districts, Professors Michael Heller and Rick Hills address the collective action problem arising from excessively fragmented land. They propose an innovative solution: Land Assembly Districts (or LADs). In this Article, I raise several concerns regarding LADs in particular and majoritarian land assembly in general. LADs rely on majority voting by a neighborhood's existing owners. Yet majority voting, coupled with the possibility of heterogeneity, means that LADs may both approve socially undesirable assemblies and disapprove socially desirable ones. LADs also permit owners to bargain over a project's surplus. But such bargaining creates additional costs for developers, as well as a potential bilateral monopoly problem, both of which may result in fewer desirable assemblies. There is thus no reason to believe a priori that LADs are superior to either eminent domain or private assembly. Finally, because LADs require courts to delineate the circumstances in which eminent domain would continue to be permitted, LADs may not even offer an administrability advantage. Indeed, LADs ultimately may rely on judicial expertise to an extent the authors themselves believe is problematic. Still, LADs constitute a creative proposal worthy of consideration.

Pretextual Takings

Since Kelo v. City of New London, the preferred litigation strategy for challenging a condemnation that benefits a particular private party is to allege that the taking is "pretextual." This Article contends that, although pretextual takings are socially undesirable, the current judicial test for identifying such takings is problematic. Yet an alternative, intent-based test might be impracticable, as well as underinclusive: condemnors often have mixed motivations, particularly when confronted with a firm's credible threat to relocate. Instead, the Article develops a framework that emphasizes informational differences between the government and private parties. When the state lacks information regarding the optimal site for an assembly, the state may need to rely on a private party to identify, as well as develop, a particular site. However, when the state itself possesses information regarding the site, precondemnation private involvement, as well as post-condemnation involvement by a preferred private party, is generally unnecessary. Such involvement increases the likelihood of a pretextual transfer without any corresponding public benefit. The Article concludes that, based on these differences, a burden-shifting framework, analogous to Title VII's test for identifying pretext, can be adopted in the takings context. The new framework is then applied to several situations in which allegations of pretext are likely to arise.

Ben Barros

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May 19, 2008 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Property in Space

Asteroid The Boston Globe has a great article on property in space.  It raises a number of interesting theoretical issues about property, and might make a great teaching tool.

Hat tip:  Ilya at the VC.

Ben Barros

Asteroid Photo From NASA via Wikicommons

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May 19, 2008 in Natural Resources, Property Theory, Teaching | Permalink | Comments (3) | TrackBack (0)