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Univ. of Kentucky College of Law

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Saturday, December 19, 2009

Selmi on Land Use Regulation by Contract

Daniel P. Selmi (Loyola LA) has posted Land Use Regulation by Contract on SSRN.  Here's the abstract:

In recent years the use of contracts, known as development agreements, to establish land use regulations has grown rapidly. Both municipalities and development interests have found it in their interests to support the increased use of these agreements. This article, however, suggests that the use of contract as a means of making land use decisions marks a key turning point in the evolution of land use regulation. The article examines the effects of such contracts on four sets of norms that underlie the current land use system. The article concludes that contracts have important effects on whether local governments comply with these norms in making land use decisions.

Ben Barros

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December 19, 2009 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, December 18, 2009

Adams on Homeownership

Kristen Adams (Stetson) has posted Homeownership: American Dream or Illusion of Empowerment? on SSRN.  Here's the abstract:

In this Article, I endeavor to show that because Americans value homeownership so much — in fact, more than we should — we have placed ourselves in an untenable position as a country and now find ourselves in the midst of a well-documented housing crisis. In addition, we have used the primacy of homeownership as an excuse not to fulfill our country’s commitment to provide housing assistance to those persons who need it most. We have done this in part by undervaluing quality, affordable rental property (and quality renters) just as we have overvalued homeownership (and homeowners). Some have used the word “myth” in talking about the American view of homeownership; however, the word I prefer is “illusion,” which I intend to be less pejorative while still acknowledging that homeownership does not always deliver the benefits it promises, particularly for lower income homeowners. This Article is not particularly concerned with the question of who is to blame for the current housing crisis, because I believe fault in this context is too complicated to be laid at the feet of just one party or another. Part II of this Article examines the median American household, mortgage, and house, concluding that many Americans cannot afford the homes they have purchased. Next, Part III addresses the question of why our country overvalues homeownership to such an extent that it now finds itself in this position. In doing so, Part III examines the many benefits that homeownership supposedly provides to both individuals and society. Part IV contrasts society’s customary treatment of homeownership as a virtue with its stigmatization of renters, concluding that the latter is unfounded. Part IV also explores how the very interests that have promoted homeownership have also benefited most from its growth. Part V considers several factors that contributed to the real estate boom that culminated in the mid-2000s, including homeowners’ treatment of mortgage debt as wealth, financing options such as no-down-payment and interest-only loans, increased utilization of home equity loans, and certain features of subprime lending. Part VI concludes by suggesting that universal homeownership does not provide the benefits Americans have come to expect from it and proposing four steps policymakers should follow in creating healthier, more sustainable housing policy.

Ben Barros

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December 18, 2009 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Smith on Institutions and Indirectness in Intellectual Property

Henry E. Smith (Harvard) has posted Institutions and Indirectness in Intellectual Property on SSRN.  Here's the abstract:

Intellectual property rights are controversial because on first glance they present a disjunction between the purposes they serve and the mechanisms they employ. New Institutional Economics (NIE) suggests that for reasons of transaction costs, broadly conceived, institutions are imperfect and their imperfections may nonetheless be cost-effective. This Article draws on the NIE to present a theory of the similarities and differences between IP and regular property, and sharpens some empirical questions relating to the advisability of property-style IP protection. IP is characterized by two types of indirectness that need not both be present in regular property. In first-order indirectness, the resource to be measured is difficult to meter, leading to the use of rough proxies. Variation in outcomes along dimensions of the resource – for example, animals supported by grazing land – show high variance, i.e. risk. Second-order indirectness involves uncertainty or ambiguity about the return from a resource, in terms of how to employ it or even to carve it up – for example choosing crops or deciding between agricultural and residential subdivision. The greater the uncertainty, the more attractive, in terms of maximizing option value, it is to delegate decisions over these dimensions of resource activity to those close to the resource. Both types of indirectness point to advantages that in theory a modular structure of rights can provide: difficulty in measuring dimensions (first-order) or identifying the relevant dimensions (second-order) suggests that a given activity be placed within a module and control over local remodularization be given to private actors. Because information is nonrival, the benefits of modularity must be traded off against the benefits of exclusion costs. In both patent licensing and remedies, an NIE approach to property that does not emphasize information costs has difficulty explaining patent rights as opposed to other internalization and coordination devices. The Article applies the information-cost theory to IP licensing and patent remedies. Licensing implements a governance strategy that enriches the interface between IP rights in limited ways. Injunctive remedies dovetail with a modular structure of exclusion rights, and the traditional equitable approach to injunctions provides for targeted safety valves for problems relating to lack of notice and reasonable reliance by potential infringers.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

December 18, 2009 in Intellectual Property, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, December 17, 2009

Epstein on Heller's Gridlock Economy

Richard A. Epstein (Chicago) has posted Heller's Gridlock Economy in Perspective: Why There is Too Little, Not Too Much, Private Property on SSRN.  Here's the abstract:

This Article critiques Michael Heller’s important contribution in the Gridlock Economy. At no point does it take the position that gridlock, or the associated anticommons, is not a serious issue in the design of a legal system. But it does insist that gridlock is not the major source of social dislocation, or that private ownership is the major source of gridlock. More concretely, the articles examines the other important sources of economic distortion that are unrelated to economic gridlock from private action. These include the use of excessive government subsidies (as with health care), misguided government licenses (as with broadcast licenses); the unwise use of government power to create gridlock situations (as with employment law); the excessive role of government permitting (as with real estate development); and the use of creative private techniques to overcome gridlock (as with patent licensing as a way to combat the patent thicket). Thereafter, the Article explains how traditional common law rules did a better job in controlling for gridlock than many current initiatives, by narrowly defining the class of actionable harms to exclude competitive loss, blocked views, and hurt feelings. It closes with an explanation of how broad definitions of harm slow down decisions in the public sector, thereby impeding the use of the eminent domain power that could otherwise respond to gridlock issues.

Ben Barros

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December 17, 2009 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 16, 2009

Lehavi on Fennell's Unbounded Home

Amnon Lehavi (Interdisciplinary Center Herzliyah - Radzyner School of Law) has posted Is Law Unbounded? Property Rights and Control of Social Groupings on SSRN.  Here's the abstract:

This review essay follows up on a suggested model for resolving problems of neighborhood externalities and exclusionary associational patterns in today's metropolitan areas through a property rights regime of "alienable entitlements," as articulated by Lee Anne Fennell in The Unbounded Home (2009). The essay frames the model as promoting a groundbreaking approach to the fundamental quandary over the role of law as a tool for broad-based social change, which has been at the center of the law and society literature.

The essay asks if legal rules can fully absorb the multiple types of societal effects that influence the nature of contemporary homeownership. It then assesses more pointedly the normative desirability of controlling metropolitan-wide social exclusion through alienable property entitlements, identifying an internal tension between Fennell's support for a market-like process and her pursuit of an objective ideal that impacts the analysis. The essay concludes by suggesting that even if one accepts the tentative blueprint for addressing social engineering issues through alienable legal entitlements, it is unclear if such an approach would practically change the ways in which the social dynamics of groupings and exclusion currently take place.

This analysis aims at offering broader insights for socio-legal inquiries beyond the above particular themes of examination. Its central arguments are not limited to a certain ideological perspective - be it the promotion of social justice or of utilitarianism - or to a particular type of social concern. The essay aspires to broadly illuminate the complex ties between law and social studies, and the boundaries of law in controlling social conduct.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

December 16, 2009 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Hamilton on the Unconstitutionality of RLUIPA

Marci A. Hamilton (Cardozo) has posted The Constitutional Limitations on Congress's Power Over Local Land Use: Why the Religious Land Use and Institutionalized Persons Act is Unconstitutional on SSRN.  Here's the abstract:

The purpose of this Article is to bring to the forefront of discussion bedrock principles of land use law, which have been ignored to date, and to place RLUIPA analysis on a more constitutionally sound base. The Article is divided into three main sections. Section I recounts the history of land use principles from the drive to ordering urban centers in the seventeenth and eighteenth centuries to the development of the rich amalgam of modern practices that now constitute local land development and planning. Section II examines the Supreme Court’s constitutional doctrine of land use law and describes the federal laws that directly or incidentally affect local land uses and shows that these few are cabined within narrowly circumscribed arenas or in fields in which federal coordination of the states is necessary. These laws are readily distinguishable from the sweeping effect of RLUIPA on local land use determinations. Section III then looks closely at Section 2(a), to show how it impacts local decision-making, and operates as a radical and careless interference with settled constitutional principles. In addition, it points out that state courts have a history of rooting out invidious discrimination against religious landowners and invalidating discriminatory or arbitrary zoning and permitting decisions.

Ben Barros

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December 16, 2009 in Land Use, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Lavine on Berman v. Parker

Amy Lavine (Albany Law School) has posted Urban Renewal and the Story of Berman v. Parker on SSRN.  Here's the abstract:

The Supreme Court’s 1954 decision in Berman v. Parker serves as the foundation for much of our modern eminent domain jurisprudence, including the controversial 2005 Supreme Court decision in Kelo v. New London. But the story behind the case starts well before 1954, and it carries implications that are relevant today. It’s a story that played out in many cities across the nation, just as it did in Washington, D.C., where the case took place. It’s the story of urban decay and urban renewal.

This working paper covers the history of redevelopment in Southwest Washington, from the turn of the century to today. It discusses the City Beautiful movement and progressive housing reform in Washington, the rise of public housing and slum clearance policies, the urban renewal planning process as it played out in Southwest D.C., and the demise of urban renewal as a federal policy in the wake of its failures. The conclusion points out while we may approach contemporary economic development projects differently than we approached urban renewal in the 50s and 60s, much can still be learned from the story behind this landmark case.

I learned a lot from reading this article.  Highly recommended!

Ben Barros

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December 16, 2009 | Permalink | Comments (0) | TrackBack (0)

Eminent Domain at the Play Table

Using eminent domain to take legos!  With real due process problems.

Ben Barros

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December 16, 2009 in Takings | Permalink | Comments (0) | TrackBack (0)