Thursday, February 19, 2009

Treanor on Epstein's Supreme Neglect

William Michael Treanor (Fordham) has posted Supreme Neglect on SSRN.  Here's the abstract:

In Supreme Neglect, Professor Richard Epstein has produced a clear and elegant synthesis for the general reader of his lifetime of thinking about the Takings Clause and, more broadly, about the role of property in our constitutional system. Appealing to both history and constitutional text, Epstein argues that the Takings Clause bars government regulations that diminish the value of private property (with the exception of a highly constrained category of police power regulations). This essay shows that neither the text of the clause nor original understanding support Epstein's broad doctrine of regulatory takings. Indeed, both text and the early history of the clause indicate that the clause did not apply to regulations at all; it applied only to physical seizures by the government- situations where the government physically take[s] property by, for example, building a road or a school on it.

Ben Barros

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February 19, 2009 in Books, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Sagalyn on Land Assembly

Lynne B. Sagalyn (Columbia Business School) has posted Land Assembly, Land Readjustment and Public/Private Redevelopment on SSRN.  Here's the abstract:

A firm premise of urban redevelopment is the need for public action to deal with the practical problems of urban land assembly: numerous small parcels, fragmented ownership, and balkanized derivative interests, all of which hinder spontaneous market-driven transformations. Relying on the process of eminent domain to assemble land has been the stalwart convention of urban revitalization as practiced in the U.S. during the decades following World War II. Nonetheless, the use of eminent domain powers is fraught with obvious political problems. Because it is politically unpopular, public officials typically use it only as a last resort, and they are on the defensive from the first announcement of condemnation intentions. Because it is inherently controversial, ensuing litigation inevitably delays projects, sometimes terminally so. While government often prevails in judicial contests of condemnation, the process is not without its costs, as evident in the Kelo case, which intensified rather than diminished the controversy in the court of public opinion.

Given that the condemnation process is so cumbersome and costly, inherently litigious, and full of political risks, what other policy options exist to effectuate public ambitions that call for land assembly? In particular, what is the applicability of land readjustment schemes to public/private redevelopment projects commonly pursed in U.S. cities today?

In this paper I explore the lessons learned from the redevelopment of Times Square at 42nd Street, where 13 acres of prime, if blighted, land was assembled by the customary method of condemnation. This experience vividly argues for a more efficient strategy, though in such large-scale redevelopment project where issues of overall control and the redefinition of land uses are often paramount, land readjustment schemes may be difficult to apply. Land readjustment, however, may be a useful mechanism to rationalize land-use patterns in failed subdivisions, obsolete cooperative apartment houses, older inner-city suburbs or neighborhoods blighted by failed projects of any kind. In these situations, land readjustment is potentially a much more efficient process than governmental site ownership precisely because the original owners are retained as participants, thereby eliminating the need for an Request-For-Proposal (RFP) process to choose redevelopers. The process creates either salable publicly owned parcels or public improvements, both potentially at no cost to the public, while at the same time improving property values and thus, the tax base.

Land readjustment schemes are complex. They require large up-front expenditures of time and cost, tricky valuations of contributed interests and determinations of cost-equivalent land, and holdouts; in addition, the length of time it takes to execute a readjustment scheme defines owners' opportunity cost of pooling their land interests. To discuss the application of a land-readjustment model to urban land assembly for public/private redevelopment, I review three core policy issues (the creation of new economic interests, the balance of public objectives and private interests, and the implications for public finance of a voluntary land-pooling system) and discuss the perceived difficulties arising from the politics of development opposition and the fragmented character of city property markets. Where these politics obstacles are not dominant, land readjustment schemes hold greater potential application. In particular, the model of a joint-stock development corporation holds much promise in cities and states where the politics of development are less fractious and more consensual.

Ben Barros

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

February 19, 2009 in Real Estate Transactions, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Lebovits on New York Residential Landlord-Tenant Law and Procedure

Gerald Lebovits (St. John's) has posted New York Residential Landlord-Tenant Law and Procedure on SSRN. Here's the abstract:

This book chapter, also published separately as a book/monograph, addresses residential landlord-tenant law, practice, and procedure in New York State.

Ben Barros

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

February 19, 2009 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 18, 2009

Ferreira et al on Hosing Busts and Household Mobility

Fernando V. Ferreira (Wharton), Joseph Gyourko (Wharton), and Joseph S. Tracy (Federal Reserve Bank of New York) have posted Housing Busts and Household Mobility on SSRN. Here's the abstract:

Using two decades of American Housing Survey data from 1985 to 2005, we estimate the influence of negative home equity and rising mortgage interest rates on household mobility. We find that both factors lead to lower, not higher, mobility rates over time. The effects are economically large -- mobility is almost 50 percent lower for owners with negative equity in their homes. This finding does not imply that current concerns over defaults and homeowners having to relocate are entirely misplaced. It does indicate that, in the past, the mortgage lock-in effects of these two factors were dominant over time. Policymakers may wish to begin considering the consequences of mortgage lock-in and reduced household mobility because they are quite different from the consequences associated with default and higher mobility.

Ben Barros

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

February 18, 2009 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Rappaport on Originalism and Regulatory Takings

Michael B. Rappaport (San Diego) has posted Originalism and Regulatory Takings: Why the Fifth Amendment May Not Protect Against Regulatory Takings, But the Fourteenth Amendment May on SSRN.  Here's the abstract:

This articles explores the widely disputed issue of whether Takings Clause protects against regulatory takings, offering a novel and intermediate solution. Critics of the regulatory takings doctrine have argued that the original meaning of the Fifth Amendment Takings Clause does not cover regulatory takings. They have quickly moved from this claim to the conclusion that the incorporated Takings Clause under the Fourteenth Amendment also does not cover regulatory takings.

In this article, I accept the claim that the Fifth Amendment Takings Clause does not cover regulatory takings, but then explore the possibility that the incorporated Takings Clause does cover such takings. Applying Akhil Amar's theory of incorporation, I argue that there are strong reasons, based on history, structure, and purpose, to conclude that the Takings Clause had a different meaning under the Fourteenth Amendment. Amar argues that the Bill of Rights was dominated by republican ideas, but that the Fourteenth Amendment was founded on more liberal notions intended to protect individual rights. This would suggest that a broad reading of the Takings Clause would further the principles underlying the Fourteenth Amendment.

Moreover, that some state courts had come to apply takings principles to regulatory and other nonphysical takings in the period between the enactment of the Bill of Rights and the Fourteenth Amendment provides additional support for the possibility that the Fourteenth Amendment enactors would have understood it to apply to regulatory takings. While the paper does not attempt to prove that the Fourteenth Amendment Takings Clause applies to regulatory takings, leaving that task to others, it argues that critics of regulatory takings doctrine should no longer simply assume that the Constitution's original meaning does not apply to state regulatory takings.

Ben Barros

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February 18, 2009 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Takings Under the Fifth And Fourteenth Amendments

Over at the VC, Jonathan Adler has an interesting post on takings and incorporation, drawing on Michael Rappaport's article mentioned in the post above.

Ben Barros

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February 18, 2009 in Takings | Permalink | Comments (0) | TrackBack (0)