PropertyProf Blog

Editor: Stephen Clowney
Univ. of Kentucky College of Law

A Member of the Law Professor Blogs Network

Saturday, May 22, 2010

Dagan on the Pluralism of Property

Hanoch Dagan (Tel Aviv) has posted From Independence and Interdependence to the Pluralism of Property on SSRN.  Here's the abstract:

This paper is one chapter of a collection of essays – Property, State, and Community – which will be published with the Oxford University Press in 2011. I discuss in this chapter two recent ambitious attempts to divine the core normative essence of property; relying, respectively, on Kant and Aristotle, one finds property as a castle of independence, the other – as the locus of interdependence. I recognize the normative appeal of these rival theories: independence must be a core value in every humanistic tradition; and our embeddedness in communities is not only an important feature of the human predicament, but also a significant aspect of human flourishing. And yet I show that both theories fail and that their failures are mirror images of one another. Each theory ignores and thus undermines the value emphasized by its counterpart, and this omission also backfires. By refusing to allow interdependence and responsibility to play any role in its conceptualization of property, the property as independence school may end up undermining its own cause by entrenching widespread human dependence. Likewise, by resisting the commitment to legally entrench liberal exit and by insisting that reciprocity should not cap communities’ demands of their members’ contributions, the property as interdependence camp may dilute, rather than fortify, the value of community.

I suggest that rather than trying to extract one regulative principle of the entire terrain of property, we should appreciate the value of the heterogeneity of property's domain. The multiplicity of property institutions is the key to property's normative promise. Property can be the home of both independence and interdependence (and can serve the other property values as well), and thus provide people with valuable options of human flourishing. Only by facilitating such diverse forms of human interaction – different property institutions – can property promote (as it does) the freedom-enhancing value of pluralism and the individuality-enhancing role of multiplicity, which are so crucial to the liberal ideal of justice.

Ben Barros

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

May 22, 2010 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Greetings from Prague

I am safely ensconsed in my little apartment in the lovely Mala Strana district of Prague, where the past is most definitely not past.  History breathes through the walls here.  Above me as I type is a wooden ceiling painted in intricate design 300 years ago.  The buildings here are old enough that they were not originally marked by a number, but rather by a design.  Here, for example, is the design that marks the building next to my apartment (I took this picture from my window).  To send a letter to this house in the old days, you would address it to House of the Crowned Geese, Mala Strana, Prague.
DSC00864
And do you think your law school has tradition?  Charles University Faculty of Law was founded in 1348, by King Charles IV.  That's him kneeling before St. Wencelas, patron saint of the Czechs, receiving the charter for the school.  Incidentally, I understand some of the inaugural faculty are still waiting for tenure.

 Pictures from 5-18 to 5-21 016

But of course, some past is even less past: this marks the 65th anniversary of the liberation of Czechoslovakia from its horrific and deadly Nazi occupation, a great moment to be celebrated; but it also marks the beginning of the collective expulsion of ethnic Germans, and the eventual slide into Soviet-style communism, moments that I think are to be mourned (as one law professor wryly explained to me yesterday, under communism Czechs had freedom of speech, but not freedom after speech).  This beautiful society still wrestles with untangling the past, particularly with regard to property.  I interviewed a family whose property was confiscated, in succession, by the Nazis, the Republic, and the Communists.  They are still trying to reclaim it, and there are no easy answers for this amazing country that is both deeply rooted in history and very, very young. 

Much more to come . . . . 

Mark Edwards

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

May 22, 2010 | Permalink | Comments (0) | TrackBack (0)

Friday, May 21, 2010

Gentrification and Its Discontents

Benjamin Schwarz has a article called Gentrification and Its Discontents over at the Atlantic, which will be of interest to folks interested in urban spaces.  (H/T Matt Berger).

Ben Barros

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

May 21, 2010 in Land Use | Permalink | Comments (0) | TrackBack (0)

Rodriguez-Dod on Protecting Tenants from Foreclosure Evictions

Eloisa C. Rodriguez-Dod (Nova Southeastern) has posted Stop Shutting the Door on Renters: Protecting Tenants from Foreclosure Evictions on SSRN.  Here's the abstract:

This article discusses existing and proposed federal and state law affecting tenants’ rights in foreclosure. As “Foreclosure” signs rapidly join “For Sale” signs across the country, the national foreclosure crisis has not only displaced homeowners, but a plethora of renters as well. The approach taken by states concerning tenants affected by foreclosure varies greatly. Furthermore, a recently enacted federal law, created specifically to help tenants in foreclosure, does not relieve the uncertainty in resolving this issue. In addition to being the first to critique the new federal law, this article offers recommendations for legislation that may better protect tenants from foreclosure-related evictions.

Ben Barros

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

May 21, 2010 in Landlord-Tenant, Mortgage Crisis, Real Estate Finance, Real Estate Transactions, Recent Scholarship | Permalink | Comments (1) | TrackBack (0)

Salkin and Lavine on Community Benefits Agreements and Comprehensive Planning

Patricia Salkin and Amy Lavine (Albany) have posted Community Benefits Agreements and Comprehensive Planning: Balancing Community Empowerment and the Police Power on SSRN.  Here's the abstract:

Traditionally, the states have empowered local governments to develop plans and implement regulations for neighborhood and community development. When accomplished at the local or regional level, the interests and benefits of the community as a whole are to be weighed against the detriments to individuals. Much has been studied and written about the lack of meaningful public participation in the planning and land use regulatory process, suggesting that often low-income and minority communities are not fully engaged in the process, even when it may result in decisions negatively impacting their neighborhoods. Case studies have also shown that governments are sometimes so eager to stimulate local economic development that they fail to fully engage communities in the project review process, both to expedite development and to avoid confronting local opposition. This emphasis on short-term economic growth, however, may obscure a local government’s perception of the social and environmental needs of particular communities. When this occurs, formal planning processes have failed to accomplish their goals of engaging community members and guiding future growth in a manner that maximizes long-term benefits for the common good.

New approaches to planning provide one response to systemic public participation problems. The environmental justice movement, for example, has sought to ensure a fair distribution of both environmental burdens and environmental goods by requiring local governments to make meaningful public participation available to all community members. Community based planning efforts have attempted to improve the planning process by focusing on small and distinct geographic areas and by developing collaborative and inclusive planning programs. Since the late 1990s, community benefits agreements (CBAs) have offered another method to increase community input in the development planning and review process. For communities that have historically been excluded from the planning process, CBAs can be a powerful tool to ensure that neighborhood interests are addressed as an integral component of development. The result, ideally, is growth and development that is accountable to the people it affects and equitable in its distribution of benefits and burdens. However, the people it affects are often a small subset of the municipal jurisdiction and the equitable distribution sought in the CBAs is limited to the proposed project area.

This article explores how the comprehensive planning process and CBAs complement and contradict each other, and how both could be improved by innovative and more inclusive planning techniques. Part II provides a brief historical background on comprehensive planning and community development, including issues relating to community planning and public participation. Part III examines CBAs and their role in community empowerment, community development and the promotion of social justice principles, including equitable development. This part also provides examples of typical land use related elements found in existing CBAs. Using these examples, Part IV segues into a discussion regarding whether private CBAs usurp the public planning process. The section explores whether CBAs are just another type of community based plan and whether CBAs advance narrow interests at the expense of the larger community. The question of what local governments should do when presented with a CBA that is inconsistent with the local comprehensive land use plan is examined to determine whether amending the plan to incorporate the community vision as articulated through the CBA is appropriate. The article concludes in Part V by pointing out that shortcomings of the current regulatory system allow local governments, intentionally or inadvertently, to exclude robust public participation from the development and implementation of comprehensive land use plans. This provides the impetus for privately negotiated CBAs, but these agreements may not always be ideal because not all parties to a CBA will have the best interests of the neighborhood or the community as a whole at the forefront of their agendas. While many CBAs have been successful, a number of case studies also reveal pitfalls in the process. The article concludes with the belief that local governments must be more inclusive and accountable in the public planning process to better meet the true goals of the community benefits movement.

Ben Barros

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

May 21, 2010 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Bronin on Curbing Energy Sprawl

Sara C. Bronin (UConn) has posted Curbing Energy Sprawl on SSRN.  Here's the abstract:

Energy sprawl - the phenomenon of ever-increasing consumption of land, particularly in rural areas, required to site energy generation facilities - is a real and growing problem. Over the next twenty years, at least sixty-seven million acres of land will have been developed for energy projects, destroying wildlife habitats and fragmenting landscapes. According to one influential report, even renewable energy projects - especially large-scale projects that require large-scale transmission and distribution infrastructure - contribute to energy sprawl. This Article does not aim to stop large-scale renewable energy projects or even argue that policymakers focus solely on land use in determining whether energy projects are allowed to proceed.

Rather, it proposes that we advance the legal institutions necessary to facilitate one possible solution to energy sprawl: the alternative energy microgrid - that is, small-scale distributed generation between neighbors of energy derived from sources such as solar collectors, wind power systems, microturbines, geothermal wells, and fuel cells. Microgrids are attractive from a public policy perspective. They decentralize energy production, reducing the need for massive transmission lines and large centralized plants. They allow property owners to achieve economies of scale by spreading the costs and the risk of installation and maintenance among many parties. They provide cleaner alternatives to conventional energy methods of production. And they improve system efficiencies by reducing the amount of energy lost during transmission across long distances to end users.

Despite such benefits, regulatory, political, and economic barriers thwart microgrids. For example, state laws prohibit or severely limit their viability, while neighbors may object to living nearby. This Article offers three proposals to address such barriers. First, Congress should require states to consider a model standard for microgrids, just as it has required states to consider model standards in other areas of utility law. Second, states should provide guidance to localities with respect to siting and permitting microgrid projects. Third, states should develop and authorize legal institutions that would support microgrid projects, drawing from Professor Robert Ellickson’s proposal for block improvement districts, which accommodate the public-private nature of shared energy. Together, these proposals would support small-scale energy sharing collectives whose emergence could transform the American landscape.

Ben Barros

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

May 21, 2010 in Land Use, Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Harris on Recourse and Non-Recourse Mortgages

Ron Harris (Tel Aviv) has posted Recourse and Non-Recourse Mortgages: Foreclosure, Bankruptcy, Policy on SSRN.  Here's the abstract:

The recourse-non-recourse dimension is fundamental in any loan as it deals most directly with the pool of assets out of which lender can collect at delinquency and default. This paper calls attention to an exceptional feature of the American home mortgage market, compared to mortgage markets elsewhere in the world, the prevalence of non-recourse mortgages as created by foreclosure rules in leading states such as California and Arizona and federal bankruptcy law. It explains how the legal impediments on recourse to personal assets and future income, together with the recent drop in home prices, led to a dramatic rise in strategic foreclosures (ones that resulted from negative equity rather than from cash-flow problems). No less than 588,000 strategic walk-away mortgage defaults took place, representing nearly 20% of all foreclosures in 2008. Most of these were not likely to happen in a recourse regime.

The paper then deals with policy. It uses a few theoretical frameworks: put option, default insurance, asset partitioning and screening. It examines the pros and cons of recourse regime and of non-recourse regime. It concludes that there is no compelling justification for prohibiting either recourse or non-recourse loans. The benefits and pitfalls of a dual regime are then examined. The question relating to why we don't observe a dual regime in the real world is addressed. The paper recommends that jurisdictions that prohibit recourse loans lift this prohibition. It concludes that both recourse and non-recourse should be on the table, on the levels of regulation policy and lending practices.

Ben Barros

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

May 21, 2010 in Mortgage Crisis, Real Estate Finance, Real Estate Transactions, Recent Scholarship | Permalink | Comments (2) | TrackBack (0)

Monday, May 17, 2010

Most Cited Property Scholars

Brian Leiter has posted the most recent iteration of his scholarly impact study, which includes list of the most cited Property scholars.  Professor Leiter provides a good amount of detail on his methodology, but the most important thing to note is that this is a study of citations within the last five years, not overall citation.

Property


Rank

Name

School

Total Articles Citing Name

Age in 2010

1

Robert Ellickson

Yale University

810

69

2

Carol Rose

University of Arizona

790

70

3

Michael Heller

Columbia University

570

48

4

Joseph William Singer

Harvard University

500

56

5

Henry Smith

Harvard University

370

45


Stewart Sterk

Cardozo Law School/Yeshiva University

370

58

7

Vicki Been

New York University

310

54

8

Gregory S. Alexander

Cornell University

290

62


Lee Fennell

University of Chicago

290

44


Lior Strahilevitz

University of Chicago

290

37


Runner-up for the top ten





David Callies

University of Hawaii

260

67


Nicole Stelle Garnett

University of Notre Dame

250

40


Eduardo Penalver

Cornell University

200

37


Michael Schill

University of Chicago

190

52


Steven Eagle

George Mason University

180

65


Highly Cited Scholars Whose Cites Are Not Exclusively in This Area





Thomas Merrill

Columbia University

1400

61


Margaret Jane Radin

University of Michigan

  860

69


Gideon Parchomovsky

University of Pennnsylvania (half-time)

  530

42


James Krier

University of Michigan

  460

71


Abraham Bell

University of San Diego (half-time)

  270

42


Ben Barros

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

May 17, 2010 in Law Schools | Permalink | Comments (5) | TrackBack (0)

Ely on Stevens, Kagan, and Property Rights

James W. Ely Jr. (Vanderbilt) has a column in today's Washington Times titled Stevens, Kagan and property rights. (H/T Ilya Somin).  Ely remarks that "Justice Stevens consistently dismissed property rights claims and voted to strengthen government control over the lives of individuals," and goes on to discuss Stevens' positions in regulatory takings and public use cases.  At least since the mid-1980s, Stevens has certainly been the leader of the pro-government wing of the Court on takings cases, and he has written some of what are (in my humble opinion) the worst regulatory takings opinions in recent memory.  Even though the ultimate holdings in Keystone and Tahoe Sierra are probably correct (especially because both were facial challenges), Stevens' majority opinions in each are terrible, as was his dissent in Lucas.  This said, there is one passage in Ely's op-ed that strikes me as misleading:

In Kelo, Justice Stevens virtually eviscerated the public use limitation of the Fifth Amendment at the federal level. Under his reading of public use, legislators appear to have almost unlimited power to take homes and businesses for economic development. The beneficiaries likely will be corporations and others with political clout. In practice, developers and local officials often work in tandem to eliminate neighborhoods and displace residents in order to achieve hypothetical economic gains.

While I'm not a big fan of Kelo, I don't think it is true that Justice Stevens eviscerated the public use limitation - the Supreme Court as a whole eviscerated it in unanimous opinions in Berman and Midkiff.  I've never seen a convincing argument why the result in Kelo was not mandated by Berman and Midkiff.  So it seems unfair to place all of the blame on Stevens.

It will be very interesting to see what happens with the Court's liberal wing on takings cases after Stevens' departure.  Stevens has so dominated this area that it is hard to pin down exactly where Justices Ginsburg and Breyer stand -- sure, we have their votes, but I can't recall either writing an opinion in a takings case.  Justice Sotomayor and potential Justice Kagan are relatively blank slates on regulatory takings issues.  It may be that this issue has become so ideological that the liberals will consistently vote against property owners.  On the other hand, there is good reason to think that the liberals may be sympathetic to property owners in at least some contexts.  After all, Justice Brennan wrote what is probably the most pro-property-owner opinion in any takings case (his dissent in San Diego Gas & Electric).  We might get a preview of what is to come when the Court decides Stop the Beach sometime in the next couple of weeks.  Because Justice Stevens recused himself, the Court's liberal wing won't be able to follow his lead.

Ben Barros

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

May 17, 2010 in Takings | Permalink | Comments (2) | TrackBack (0)