Friday, September 26, 2008

Bell on Private Takings

Abraham Bell (Bar Ilan/U Conn) has posted Private Takings on SSRN.  Here's the abstract:

Eminent domain, or the power to take, is generally analyzed as the quintessential government power. It is unsurprising, therefore, that scholars tend to operate from the basic assumption that eminent domain is solely an incident of the government's domain in the provision of public goods. This assumption has led to widespread criticism of the courts' evisceration of the public use requirement, and repetition of the mantra that the government cannot simply take from A in order to give to B.

In this Article, I show that this conception of takings is too narrow. In function, if not in name, eminent domain is simply another property arrangement, and, as such, it is adaptable to private property law even without state action. Indeed, private takings - i.e., takings carried out by non-governmental actors - have a solid basis in our legal system. Additionally, the justifications for government takings lend themselves just as well to private takings. Recognizing the importance and legitimacy of private takings leads to two central claims. First, I argue that private takings should often be a preferred mechanism for achieving goals generally accomplished today through public takings. Second, I show that identifying private takings as a vital category helps clarify the proper concerns of takings law-not only the constitutionally demanded just compensation offered for takings and the post-taking public use, but also to the pre-taking original use.

Having made these central claims, I posit that a comprehensive law of takings can be developed that encompasses both private and public takings. In the realm of theory, the Article circumscribes the place of takings within the broader theory of entitlements by defining takings within the context of mixed property and liability (pliability) rules. Normatively, the Article argues for the incorporation of private taking mechanisms into fields generally seen as the domain of classic property law and regulation.

Ben Barros

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September 26, 2008 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Chang on Eminent Domain Compensation

Yun-chien Chang (NYU) has posted An Empirical Study of Compensation Paid in Eminent Domain Settlements: New York City 1990-2002 on SSRN.  Here's the abstract:

No large-scale empirical study on compensation paid in eminent domain settlement has been undertaken in the past thirty years. Yet many state legislatures, in response to the Kelo case, have implemented new constitutions and laws (or have bills pending) to increase condemnation compensation, despite the lack of empirical grounds. Takings scholarship is also built on assumptions or anecdotes rather than empirical facts about how much condemnees have been compensated. I use hedonic regression models and about 80,000 comparable sales to estimate the fair market value of 430 condemned properties in New York City from 1990 to 2002.

I find that 71% of these settled cases are compensated with less than fair market value; 24% received more than fair market value; only very few of them (5%) got roughly fair market value. Specifically, most owners of high-value residential properties received more than fair market value, while most owners of low-value residential properties and vacant land receive less than fair market value. Most industry property owners are over-compensated, while most retail property owners are under-compensated. These results are statistically significant. Furthermore, the magnitudes of over- and under-compensation are often extreme, meaning condemnees received more or less than 50% of estimated fair market value.

My explanations for the empirical findings are multifold, because no single approach alone can explain the magnitude and distribution of the under-compensation and over-compensation among residential properties, commercial properties and vacant land. The imperfection in estimating fair market value of both regression models and appraisal methods is one reason. The condemnee-side lawyers' incentives to work harder on high-value cases are another. The government officials' utility function should impact condemnation compensation, but my data do not allow me to ascertain whether the government maximizes budgetary interests or political interests. I have tested other factors, such as the condemned properties' blight, tax default history, location, size, title-vesting year, age, owner type, length of settlement time, and planned use after takings. But I found no obvious pattern.

Ben Barros

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September 26, 2008 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (1)

Iglesias on Housing and Public-Private Partnerships

Tim Iglesias (University of San Francisco) has posted Our Pluralist Housing Ethics and Public-Private Partnerships for Affordable Housing on SSRN.  Here's the abstract:

While affordable housing has been produced through a variety of public-private partnerships (PPPs) for many decades, this fact is garnering new and increasing attention by legal and policy analysts. This chapter considers how this new attention may affect the future of America's affordable housing movement through the lens of our pluralist housing ethics: (1) Housing as an Economic Good, (2) Housing as Home, (3) Housing as a Human Right, (4) Housing as Providing Social Order, and (5) Housing as One Land Use in a Functional System. (The housing ethics framework was first explicated in Tim Iglesias, Our Pluralist Housing Ethics and the Struggle for Affordable Housing, 42 Wake Forest L. Rev. 511 (2007).) After defining a housing ethic, this chapter briefly explains our five housing ethics and reflects on our housing ethics pluralism. Then, after analyzing the PPP phenomenon using this framework, the chapter concludes that development of affordable housing through the form of PPPs presents important and even historic opportunities for affordable housing development but also substantial risks. Specifically, the proliferation of affordable housing PPPs could engender increased subsidies, continued experimentation with creative methods of developing affordable housing, improved public perceptions of affordable housing, and, most importantly, a fundamental repositioning of affordable housing in legal and policy debates. However, this phenomenon could also lead to the opposite outcomes.

Ben Barros

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September 26, 2008 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 24, 2008

Yankee Stadium Home Run Baseball Dispute

From the NY Times:

Yankees catcher José Molina hit the last home run at Yankee Stadium. That is not in dispute. Who should have pocketed the ball seems to be.

In Sunday night’s Yankees-Orioles game — the last baseball game in the long history of the ballpark in the South Bronx — the ball that Molina hit in the fourth inning soared over the left-field fence, and ended up in a net over Monument Park.

As Molina ran the bases, there was the usual skirmish in the stands. Arms-in-the-air fans did what fans do when a ball is headed their way: They craned their necks, reached up and tried for the catch. So did Orioles left fielder Jay Payton, on the field.

But it was the net that made the catch.

Fingers poked through, or tried to. Some might have even touched the ball. It stayed put.

A fan, identified by news organizations in Wyoming as Steve Harshman, a state legislator and a high school football coach, staked his claim. “I had the ball on the net and I said, ‘Well, I’m going to pull it right through this netting,’ ” Mr. Harshman told station KCWY-TV in Casper, Wyo.

A security worker warned him not to rip the net and to let the ball go, Mr. Harshman added. He said he was reassured by the workers, who told the crowd, “It’s his ball.” Then the workers told him, “You just release it when you’re ready,” he said. When he did, “a guy” jumped up and grabbed, it.

“It went right into my hands,” said Paul Russo, 31, a schoolteacher in the Bronx and a lifelong Yankees fan. “I have possession of the ball. I’m like, wow.”

Two security workers ordered him to hand over the ball, he said — for safekeeping, he figured.

But then the unthinkable — to him — happened. “They flip it to this other fan,” he said. “I’m like, ‘What are you doing?’ ” . . .

All that left Mr. Russo considering options like going to court to ask for custody of a baseball. . . .

Yankee Stadium had a long-established procedure for when a ball is caught in a net and a fan reaches into the net to grab it, according to Howard J. Rubenstein, a spokesman for the Yankees.

He said that the guards were instructed to tell a fan to let go of the ball, and once it was free of the net, a guard would return it.

The fan “doesn’t give up his ownership, he only gives up custody,” Mr. Rubenstein said. . . .

Legal experts have studied this kind of thing. Paul Finkelman, a professor at Albany Law School, was quoted in a Cardozo Law Review article titled “Fugitive Baseballs and Abandoned Property: Who Owns the Home Run Ball?” The article described a symposium that touched on Barry Bonds’s 500th career homer.

As for the Molina homer, Professor Finkelman said, “it appears to me that when it went into the net, it went into the legal possession of the New York Yankees, and if stadium officials retrieve the ball and say ‘We’ll give it to you’ — whoever they’re pointing to — they have the right to do that.”

I'm not sure Professor Finkelman is right about why Harshman owns the ball, but I agree with the result -- I think that the Yankees had a policy to abandon their claim to balls in the net, and that Harshman got possession by stopping the movement of the ball.

Ben Barros

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September 24, 2008 in Personal Property | Permalink | Comments (2) | TrackBack (0)

Moose, Free For the Taking

From Craigslist:

I have a dead moose free for the taking.

It died yesterday, apparently of natural causes. I called Fish & Game to come and get it. Apparently, moose are a natural resource and belong to everybody, until they die, then they belong to whoevers property they die on. So, according to Fish & Game, the moose now belongs to me. Sweet!!

So, if you want a free moose, please come and get it before the bears do.

You could use it for dog food, or stuff it and put it your front yard, bear bait, whatever. If you live in the lower 48, this might be your best opportunity to get a free Alaska moose. I dont really care, I just want it out of my yard.

Please reply via email, I dont need all the animal rights folks calling me, its dead, and according to Fish & Game, its got no more rights...

Ben Barros

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September 24, 2008 in Natural Resources | Permalink | Comments (0) | TrackBack (0)

Schwemm on Discriminatory Municipal Services under the FHA

Robert G. Schwemm (University of Kentucky) has posted Cox, Halprin, and Discriminatory Municipal Services under the Fair Housing Act on SSRN.  Here's the abstract:

For most of its forty-year history, the federal Fair Housing Act ("FHA") has been accorded a generous construction by the courts. The modern federal judiciary, however, has grown so hostile to civil rights that decisions narrowing the coverage of the Nation's anti-discrimination laws have become the norm. With respect to the FHA, this trend is reflected in two appellate decisions - Halprin v. The Prairie Single Family Homes Ass'n, 388 F.3d 327 (7th Cir. 2004), and Cox v. City of Dallas, 430 F.3d 734 (5th Cir. 2005) - that took remarkably narrow views of the FHA by denying that its principal provisions apply to post-acquisition cases brought by current residents.

These two decisions and the specific issue dealt with in Cox - whether the FHA prohibits the discriminatory provision of municipal services to minority neighborhoods - are the subject of this Article. Part I describes the Cox litigation and its connection with Halprin. Part II surveys the pre-Cox cases that have dealt with discriminatory municipal services. Part III analyses the FHA's relevant provisions and their legislative history, an analysis that shows Cox and Halprin to have been wrong in denying FHA protection to current residents. Part IV builds on this analysis to provide a sounder approach to FHA claims alleging discriminatory municipal services. Although the result in Cox may be defended, this Article's ultimate conclusion is that the analysis in Cox and Halprin is so flawed - and in particular has so misconstrued the FHA's 3604(b) - that it should be rejected by other courts.

Ben Barros

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September 24, 2008 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, September 21, 2008

AALS Donative Transfers Section Panel

The Wills, Trusts and Estates blog has a post about the Donative transfers section panel, which may be of interests to many propertyprofs.  Info on the Property section panels will come in a future post.

Ben Barros

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September 21, 2008 in Conferences, Estates In Land, Future Interests and the RAP | Permalink | Comments (0) | TrackBack (0)