Friday, October 8, 2010

The End of Sprawl?

New Jersey is, evidently, running out of land.  For a more skeptical take, see here.

Steve Clowney

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October 8, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 6, 2010

An Overview of Property


The Boston Globe's Big Picture feature recently ran a hypnotic series of ariel photos that depict the housing collaplse in South Florida.  The photo team states:

Many homes there are empty and have been for years. Huge developments sit partially completed among densely built up neighborhoods and swampland. A guest stated that there were "enough housing lots in Charlotte County to last for more than 100 years."

For another bird's eye glimpse of the human landscape, I recommend Emmet Gowin's darkly beautiful pictures of battlefields, mine pits, and atomic test sites.

Steve Clowney

(photo credit: Google maps)

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October 6, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 5, 2010

Unsolicited Advice for Candidates Heading to DC

A year ago at this time, I was stressing over my impending speed-dating exercise to the Wardman.  This year, I’m writing a midterm for my Real Estate Transactions students.  Take heart, candidates!

I thought I’d take a brief break from property-related subjects to give some unsolicited advice to candidates who are heading to DC for their own speed-dating exercise in a few short weeks.  I’m no expert, and I’m not on my school’s appointments committee.  I’m just someone who was lucky enough to emerge from last year’s process with a job.  So take this advice with whatever grains of salt you feel are appropriate.

[More after the jump.]

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

Monday, October 4, 2010

It's You-Know-Who Esque

The New York Times magazine is running a great story about the on-going court battle for Franz Kafka's papers.

The basics of the story of Franz Kafka and Max Brod are well-known:  Kafka's friend Brod disregarded Kafka's last request that his writings be "burned unread" after his death.  Instead, Brod saved Kafka's works, and eventually published them.  The world was enriched, Kafka's wishes were ignored, and an unresolvable debate about who has rights to great works of art began.  (For an excellent analysis of the right to destroy property, see Lior Strahilevitz's The Right to Destroy).


Kafka and Brod met when both were law students at the Charles University Faculty of Law in Prague (where I had the great good fortune to teach this summer; Kafka's father actually owned a shop in what is now the Czech National Gallery, a building that is subject to a restitution claim).  Brod escaped from Prague in 1939 as the Nazis were closing the borders and emigrated to Israel. 

In his will, Brod gave what was left of Kafka's manuscripts and letters in his estate to what is now the National Library in Israel; the problem is that during his life, he may have already given them by letter to his paramour, the now-deceased Esther Hoffe.  Esther sold the manuscript of "The Trial" to the German Literature Archive for $2 million.  She was still negotiating over the rest (which apparently contained over 50 feet of files) when she died, and her estate -- perhaps including those files, depending on what the court rules -- passed to her daughter Eva, who apparently lives in a Tel Aviv apartment with up to 100 cats.  Some of those papers may be in there with the cats; others are in bank vaults in Israel and Switzerland. 

Now, the German Literature Archive, the National Library of Israel, and Hoffe are battling for them.  The German Literature Archive is arguing that it should be allowed to purchase the papers from Eva Hoffe because it is best equipped to care for the papers, and it points out that Kafka was a European and wrote in German, making his work part of its cultural heritage.  The National Library of Israel has pointed out that (1) that's irrelevant if the papers are not Eva Hoffe's to sell, and (2) Kafka wasn't German, and (3) his siblings were murdered by the Germans during the Holocaust, so their claim to cultural heritage is ironic at best.  Hoffe seems to be, frankly, a crazy cat lady, without a lot to say that's coherent, but she wants to sell the papers.  The National Library apparently has produced at trial some missing pages from the 'gift letter' that suggest Esther was only meant to hold the papers as administrator of the estate.

While the fight continues, the court has ordered that the collection in Hoffe's possession be inventoried -- a process which is ongoing.  The collection may even contain further instructions from Brod, or from Kafka himself. 

Regardless, like Kafka's work itself, the story is at once byzantine, ironic and bleakly, absurdly comic.  I like to imagine, without any justification whatsoever, that Kafka would enjoy finding this link, because he would realize that 'the story' is not now the stories he wrote (which, after all, he wanted "burned unread"), nor even the story about how his stories were preserved by Brod, but rather the story about the story about how his stories were preserved.  He might even crack the ghost of a smile.

Mark A. Edwards

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October 4, 2010 | Permalink | Comments (0) | TrackBack (0)

The Sooty Spectre

Joel Kotkin, writing in Foregn Policy, examines the future of urban development.  Kotkin argues that planners should do more to resist the growing trend of megacities.  On the global scale, he thinks that small cities (like Austin, Tel Aviv, and Monterrey) seem poised to outpace lumbering and inefficient mega-regions.  He concludes:   

The goal of urban planners should not be to fulfill their own grandiose visions of megacities on a hill, but to meet the needs of the people living in them, particularly those people suffering from overcrowding, environmental misery, and social inequality. When it comes to exporting our notions to the rest of the globe, we must be aware of our own susceptibility to fashionable theories in urban design -- because while the West may be able to live with its mistakes, the developing world doesn't enjoy that luxury.

Applying these policies in the U.S. might mean encouraging more urbanism in smaller cities (to make them more efficient, more pleasant places to live) and bolstering local industries.  Places like Asheville, Boise, Morgantown, and Greensboro have found success by integrating some urbanist concepts (walkable downtowns, mixed-use districts) with the American preference for car ownership and large-ish homes. This seems like a decent alternative to packing New York and Chicago with evermore bodies.

Steve Clowney

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October 4, 2010 | Permalink | Comments (0) | TrackBack (0)

Fischel on Zoning Since the 1980s

William A. Fischel (Dartmouth) has posted The Evolution of Zoning Since the 1980s: The Persistence of Localism on SSRN.  Here's the abstract:

Zoning is the regulation of the use of land by local government. Although it is the most jealously guarded municipal power, zoning is not a static institution. I demonstrate this by reviewing several "top down" attempts to reform zoning in the last three decades. Examples are the affordable housing movement and regulatory takings litigation. I argue that these reforms have either failed or tended to make local zoning more restrictive. I then review new research on the origins of zoning in Los Angeles and find evidence that zoning has always been more of a bottom up institution than most of its critics have assumed. Local knowledge of neighborhood conditions and widespread ownership of property are the most important factors that keep zoning local. Reforms that do not take into account these factors are not likely to succeed.

Ben Barros

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October 4, 2010 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Brown and Williams on Adverse Possession

Carol Necole Brown (UNC - Chapel Hill) and Serena Maria Williams (Widener) have posted Rethinking Adverse Possession: An Essay on Ownership and Possession on SSRN.  Here's the abstract:

In the wake of the present real estate crisis, there has been prolonged discussion of the wrongdoing that led to systemic failures in the national real estate market. The mortgage crisis caught the nation’s attention because of its large scale and its rippling effect throughout the economy. Equally nefarious is the impact of adverse possession on the rights of individual property owners. While a single adverse possession does not affect the national market in the same way as the mortgage crisis did, to the individual owner, the wrongdoing, in the form of a trespass, that ripens into title, is just as devastating. We should reexamine, more broadly, concepts such as adverse possession that result in loss of ownership and move away from those whose foundation is in wrongdoing. The article begins with a brief discussion of foundational concepts inherent in the adverse possession doctrine. It then analyzes four examples that demonstrate the impact of adverse possession: 1) the purchaser and the bona fide donee; 2) the co-owners; 3) the squatters; and 4) the erroneous deed. The article concludes by summarizing the policies that justify abrogating the adverse possession doctrine.

Ben Barros

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October 4, 2010 in Adverse Possession, Recent Scholarship | Permalink | Comments (1) | TrackBack (0)

Dorfman on Numerus Clausus

Avihay Dorfman (Tel Aviv) has posted Property and Collective Undertaking: The Principle of Numerus Clausus on SSRN.  Here's the abstract: 

Property rights are subject to the principle of numerus clausus, which is a restriction that means that it cannot be up to the contracting parties - or private persons, more generally - to create new forms of property right, but only to trade rights that take existing forms. What can explain this peculiar limitation? All the answers offered so far by property theorists have marshaled functional explanations either in favor of or against the numerus clausus principle (hereinafter: NC). In this paper I shall set out to articulate a novel explanation of this principle. My argument develops two general claims. Negatively, explanations that emphasize the desirable effects - the functions - associated with this sort of limitation on the creation of new forms of property right cannot explain the principle in question. As I shall seek to show, this shortcoming is no mere explanatory gap. The NC principle, I argue, remains flatly indifferent to the functions advanced through property rights. Affirmatively, I shall seek to show that the principle of NC reflects a concern about legitimate political authority - that is, it gives a doctrinal expression to the question of how political authority is possible. The authority in question pertains to the normative power of legislating new property rights and their correlative obligations. The principle of NC, I argue, is a limitation on private legislation of new forms of property right. Most importantly, I shall argue that the underlying idea of political legitimation that grounds this principle is none other than democratic self-governance.

Ben Barros

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October 4, 2010 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)