March 26, 2011
Foster on Collective Action and the Urban Commons
Shelia Foster (Fordham) has posted Collective Action and the Urban Commons (Notre Dame Law Review) on SS RN. Here's the abstract:
Urban residents share access to a number of local resources in which they have a common stake. These resources range from local streets and parks to public spaces to a variety of shared neighborhood amenities. Collectively shared urban resources suffer from the same rivalry and free-riding problems that Garrett Hardin described in his Tragedy of the Commons tale. Scholars have not yet worked up a theory about how this tragedy unfolds in the urban context, particularly in light of existing government regulation and control of common urban
. This Article argues that the tragedy of the urban commons unfolds during periods of “regulatory slippage” - when the level of local government oversight and management of the resource significantly declines, leaving the resource vulnerable to expanded access by competing users and uses. Overuse or unrestrained competition in the use of these resources can quickly lead to congestion, rivalry and resource degradation. Tales abound in cities across the country of streets, parks, and vacant land that were once thriving urban spaces but have become overrun, dirty, prone to criminal activity, and virtually abandoned by most users.
Proposed solutions to the rivalry, congestion and degradation that afflict common urban resources typically track the traditional public-private dichotomy of governance approaches. These solutions propose either a more assertive central government role or privatization of the resource. Neither of these proposed solutions has taken root, I argue, because of the potential costs that each carry - costs to the local government during times of fiscal strain, costs to communities where the majority of residents are non-property owners, and costs to internal community governance. What has taken root, however, are various forms of cooperative management regimes by groups of users. Despite the robust literature on self-organized management of natural resources, scholars have largely ignored collective action in the urban context. In fact, many urban scholars have assumed that collective action is unlikely in urban communities where social disorder exists.
This Article highlights the ways in which common urban resources are being managed by groups of users in the absence of government coercion or management and without transferring ownership into private hands. This collective action occurs in the shadow of continued state and local government ownership and oversight of the resources. Formally, although the state continues to hold the regulatory reigns, in practice we see the public role shifting away from a centralized governmental role to what I call an “enabling” one in which state and local government provides incentives and lend support to private actors who are able to overcome free-riding and coordination problems to manage collective resources. This Article develops this enabling role, marks its contours and limits, and raises three normative concerns that have gone unattended by policymakers.
March 25, 2011
Modern Studies in Property Law 2012 - Call for Papers
The 9th Biennial Conference takes place at the University of Southampton from Wednesday 21st - Friday 23rd March 2012. The conference series has its origins in the biennial conference first held by the University of Reading in 1996. Those conferences gave rise to the book, Modern Studies in Property Law which, since 2001, has been the medium for refereed publication of the conference papers. Modern Studies in Property Law 2012 will again be closely tied to publication of a volume of the book.
The opening keynote address on Wednesday 21st March will be delivered by Simon Gardner. On Thursday 22nd March the conference keynote address will be given by Lord Walker of Gestingthorpe.
Further details can be found on the conference website.
Call for Papers
Proposals for papers should be sent to MSPL2012@soton.ac.uk<mailto:MSPL2012@soton.ac.uk> by 31 July 2011. Proposals should include:
1. A short abstract (300 words)
2. A very brief CV (just a few lines)
A few points to bear in mind
1. All papers will be considered for publication in a volume of the book Modern Studies in Property Law. This is subject to a refereeing process and acceptance of the paper for the conference does not necessarily mean that the paper will be published in the book.
2. Historically, lots of papers are offered for the conference and it is hoped that this will continue. This does mean that not all papers can be accepted. The decision as to which papers to accept will be made by a panel of property lawyers.
3. All speakers will be asked to write a short synopsis of their paper six weeks before the conference so that this can be circulated to delegates in advance of the conference. The full version of the conference paper must be available three weeks before the start of the conference and will be circulated at the conference.
4. The refereeing process will take place immediately after the conference and will operate to a strict timescale to ensure timely publication of the book.
5. Chapters in the book should be in the region of 8,000-10,000 words.
6. Unfortunately, it is not possible to offer any funding towards the travel coasts or the costs of attending the conference, even for speakers.
March 24, 2011
Does the County Recorder's Office Have a Photocopier?
Maybe, like me, when you teach your students about recording acts and title searches, you tell them the county officials they'll need to work with to complete a title search are helpful.
On the other hand, maybe not so much . . . .
From the Cleveland Plain-Dealer comes this account of an exchange between a Cuyahoga County Recorder's Office official (Patterson), and an attorney (Marburger) who is deposing him about the presence, or absence, of a photocopier in the office, under the watchful eye of defense counsel (Cavanagh).
Marburger: During your tenure in the computer department at the Recorder's office, has the Recorder's office had photocopying machines?
Marburger: Any photocopying machine?
Patterson: When you say "photocopying machine," what do you mean?
Marburger: Let me be -- let me make sure I understand your question. You don't have an understanding of what a photocopying machine is?
Patterson: No. I want to make sure that I answer your question correctly.
Cavanagh: Dave, I'll object to the tone of the question. You make it sound like it's unbelievable to you that he wouldn't know what the definition of a photocopy machine is.
Marburger: I didn't ask him to define it. I asked him if he had any.
Patterson: When you say "photocopying machine," what do you mean?
Marburger: Let me be clear. The term "photocopying machine" is so ambiguous that you can't picture in your mind what a photocopying machine is in an office setting?
Apparently he cannot. It continues . . . .
Cavanagh: There's different types of photocopiers, Dave.
Marburger: You're speaking instead of -- you're not under oath. This guy is.
Cavanagh: I understand that, but I understand what his objection is. You want him to answer the question, but I don't think it's fair.
Marburger: It's not fair?
Cavanagh: It's not a fair question. A photocopy machine can be a machine that uses photostatic technology, that uses xerographic technology, that uses scanning technology.
Marburger: I don't care what kind of technology it uses. Has your offices -- we don't have technocrats on the Ohio Supreme Court. We've got people like me, general guys --
I love that objection; apparently defendant's counsel objects to plaintiff's counsel's description of himself as a general guy. But there's more . . . .
Patterson: I understand that there are photocopying machines, and there are different types of them just like --
Marburger: Are there any in the Recorder's office?
Patterson: -- there are different cars. Some of them run under gas power, some of them under electric power, and I'm asking if you could help me out by explaining what you mean by "photocopying machines" --
Marburger: That's a great point.
Patterson: -- instead of trying to make me feel stupid.
Marburger: If you feel stupid, it's not because I'm making you feel that way.
At this point, if my 14 year-old were here, he'd be yelling something like 'pwnned!', which apparently means 'owned,' which in human apparently means 'that was a zinger.' But wait! Perhaps if plaintiff's counsel could simply re-phrase the question, we could find an answer that makes everyone happy . . . .
Marburger: Have you ever--do you have machines there where I can put in a paper document, push a button or two, and out will come copies of that paper document also on paper? Do you have such a machine?
Patterson: Yes, sir.
Marburger: What do you call that machine?
And good luck with that title search, students.
Then again, there are photocopiers, and then there are photocopiers, as we learned from The Wire:
Mark A. Edwards
[comments will be held for approval, so there will be some delay in posting]
90210 Neighbors Protest Mansion
It's common-fare to see the wealthy use zoning codes to exclude the less-well-off. It's much less common to see the wealthy invoking land use rules to exclude the mega-wealthy. But that's exactly what's happening in Benedict Canyon, an enclave of the rich and famous in Los Angeles.
In a neighborhood home to such luminaries as Bruce Springsteen, Jay Leno, and David Beckham, a mystery landowner had begun plans to erect an 85,000-square-foot family compound. More specifically, the landowner (thought to be a Saudi prince) wants to put up a 42,681-square-foot house, a 27,000-square-foot auxiliary villa, a guest house, staff quarters and a gatehouse. According to the L.A. Times, local residents believe that the proposal is akin to "commercial-scale construction, like building a Wal-Mart in the heart of a quiet residential neighborhood." Both parties seem highly motivated and have deep pockets, so this dispute could go on for a while.
My questions is: why would the landowner not reveal his/her identity? There's obviously a pretty huge status quo bias at work - people don't want their property taxes to go up, they don't want their property values to fall, and they worry about the environmental quality of their neighborhood. But most of all, I think the residents of Benedict Canyon seem worried about changing the social fabric of their enclave. If you're the landowner, why not reveal your identity and do the necessary PR work? Seems like a rookie mistake.
Harris on Disputes Over Security Deposits
Lee Harris (Memphis) has posted Judging Tenant Protections: The Evidence from Enforcement of Landlord Penalties on SSRN. Here's the abstract:
Critics of pro-tenant residential laws have argued that such laws actually hurt tenants. Law-and-economics scholars, for instance, argue that such reforms raise the cost of doing business to landlords. Forced to bring their dwellings up to code and wary of costly tenant lawsuits, landlords experience higher costs of doing business. However, the effects of pro-tenant residential rights cannot be evaluated without, as a first-step, coming to some conclusions about whether tenants actually use them and whether judges ever enforce them. That is, if pro-tenant residential rights are seldom enforced, landlords have little incentive to expend additional resources to meet new regulations, and no new costs need be passed on to tenants. Judges, for example, decide whether a tenant may forgo paying all, or part of, her rent if a dwelling is uninhabitable. And it is the judge who grants punitive damages if a landlord who fails to return a security deposit in a timely manner.
This Essay conducts a brief qualitative study of whether judges ever enforce such laws in the first place. Specifically, this study focuses on one product of landlord-tenant reforms in Connecticut – damage awards for landlords who do not return a tenant’s security deposit. Security deposit disputes between landlords and tenants are one of the most common kinds of landlord-tenant disputes and thus a good place to investigate whether pro-tenant residential laws actually help tenants as designed. In Connecticut, most landlord-tenant disputes are heard in informal settings by small claims magistrates. Their decisions are largely unreported and their decisions cannot be appealed. Thus, it is largely the small claims judge or magistrate who control whether the law, as written, will favor tenants. To conduct this study, the author conducted interviews of nine of the seventeen housing magistrate judges in Connecticut. In addition to the interviews with the nine magistrates, the author interviewed the caseload management specialist for small claims housing. Taken together, the interview findings suggest that landlords fare surprisingly well in small claims courts, in spite of pro-tenant protections. In fact, because civil penalties against landlords are rarely, if ever, imposed by magistrates, landlords need not expend much worry about such reforms.
March 23, 2011
Two on Judicial Takings
There are two new pieces on SSRN that touch on judicial takings. First, John Martinez (Utah) has posted No More Free Easements: Judicial Takings for Private Necessity. Martinez writes, "This article bridges the fields of constitutional judicial takings and the common law of easements that arise because of private necessity. The article suggests that the law of takings requires payment when a court declares that an easement should be established because of private necessity."
Second, Amnon Lehavi (Radzyner) has submitted Judicial Review of Judicial Lawmaking (Minnesota Law Review). Here's the abstract:
“It would be absurd to allow a State to do by judicial decree what the Takings Clause forbids it to do by legislative fiat… the particular state actor is irrelevant.” Justice Scalia’s statement in the Stop the Beach Renourishment case, made as a basis for recognizing a “judicial taking” doctrine in constitutional property law, may have overreaching jurisprudential consequences. These implications involve not only the allocation of powers among the different branches of government and the modern role of courts as rule-makers, especially in common law doctrines. This recent opinion also bears significantly on what one may term the “judicial review of judicial lawmaking.”
While this term may initially seem odd, it represents a crucial dilemma about the role that the U.S. Supreme Court should play in reviewing certain types of state court actions.
Assume that a state court of last resort alters the state adverse possession doctrine, by eliminating the requirement that the possession has to be “continuous for the statutory period,” an element that had been set up in its previous case law - in a manner that systematically impacts the rights of landowners. When the U.S. Supreme Court reviews a subsequent judicial taking case, should it simply step in for the state court in finding “what the law is” and, in appropriate cases, say that the state court was wrong, as is the case with conventional appeals within the judicial branch? Or should the Court engage in the “classic” type of judicial review that often defers to the policymaker, as if it were examining a legislative or administrative provision? If we recognize the state judiciary as lawmaker, should it indeed receive no special treatment by the Court?
The purpose of this Article is not to engage in tautological exercises or to merely demonstrate incoherence in the Stop the Beach case. Rather, it seeks to identify some major, yet probably unintended, implications that result from the conceptualization of the judiciary as both lawmaker and “state actor” in a constitutional regime. In so doing, the Article offers an innovative theoretical approach, providing guidance to key dilemmas that have been left largely unresolved since the landmark Shelley v. Kraemer decision.
March 22, 2011
These Streets Will Make You Feel Brand New
There's a great article in today's New York Times about the 200th anniversary of the city's no-frills street grid. The piece describes, in a very balanced manner, how the grid spurred development in Manhattan but simultaneously enforced a "relentless monotony" on the city. The article also does an excellent job putting the achievement in context:
“What I found absolutely remarkable,” said Hilary Ballon, an urban studies professor at New York University and curator of a future exhibition on the grid for the Museum of the City of New York, “was how the city had a commitment to executing this vision, which required a pretty significant transformation in how the city worked — a greater degree of governmental authority, changes in the taxation system to fund this road building, and a multigenerational commitment to its implementation.”
The wizards in the graphics department also came through with another exquisite infographic, which shows the original street plan and provides a chronology of street openings. It's all worth your time.
Despite my praise for the article, I want to go on record with a strong dislike of the New York street grid. I find it cold, and boring, and I think the blocks are too long (and kids, get off my lawn). The standard Manhattan block is about 264 by 900 feet. Contrast that to cozy Portland, where the blocks are only 260 by 260 feet. Beyond the lengths of the blocks, I think that the irregular streets that define places like Cambridge and Manhattan's SoHo add to their character and increase real estate values. There's a deep magic in being able to make four right hand turns and not end up in the same place. Or maybe I'm just a sucker for the crazy street layout because I'm from Pittsburgh - a city where it's not uncommon for one street (say, Beechwood Blvd) to intersect with another street (say, Monitor) in three different places...
[Comments are held for approval, so there will be some delay in posting]
Klass on Renewable Energy and the Public Trust Doctrine
Alexandra Klass (Minnesota) has posted Renewable Energy and the Public Trust Doctrine (UC Davis Law Review) on SSRN. Here's the abstract:
This Article explores the role of the public trust doctrine in current efforts to site large-scale wind and solar projects on public and private lands. Notably, both proponents and opponents of such renewable energy projects have looked to the public trust doctrine to advance their goals. Proponents of large-scale renewable energy projects point to the environmental and climate change benefits associated with renewable energy development and argue that the use of public lands and large tracts of private lands to facilitate such projects are both in the public interest and consistent with the public trust doctrine. At the same time, parties opposed to particular renewable energy projects have argued that the land-intensive nature of these projects as well as their potential adverse impacts on endangered species, open space, aesthetic values, and pristine landscapes will result in a violation of the public trust doctrine. Which side is right? How do we balance the benefits and harms of large-scale renewable energy projects and what role should the public trust doctrine play in setting that balance? In addressing these questions, this Article discusses the extent to which the public trust doctrine applies to on-shore and off-shore renewable energy projects on private, state, and federal lands and waters. It then discusses the potential role state and federal legislation can play in codifying or expanding the application of the public trust doctrine with regard to state and federal lands and waters. It concludes by suggesting ways in which existing statutes and new, renewable energy-specific statutes can attempt to build on the public trust doctrine to encourage renewable energy development on public lands without compromising competing public trust values.
The ABA Section of Real Property, Trust and Estate Law will hold its 22nd Annual Spring Symposia on April 28-29, 2011 at the Grand Hyatt in Washington. Panels that might interest law profs include:
* Origination Changes that are Transforming the Mortgage Industry
* Revisiting Commercial Real Estate Remedies
* Condominium and Resort Rental Management Agreements
* The Current State and Future Development of Natural Gas Production
* Alternative Structures for Real Estate Joint Ventures
* Understand Lease Economics and Tenant Improvements
Here's the brochure (pdf).
Land Restoration in Colombia
Last night NPR ran a short story on efforts by the Colombian government to return land to farmers that was stolen during the country's violent drug wars. All in all, officials believe that warlords wrongfully seized over 10,000 sqaure miles of land (an area the size of Maryland).
[Comments are held for approval, so there will be some delay in posting]
March 21, 2011
Osofsky on Diagonal Federalism and Climate Change
Hari Osofsky (Minnesota) has posted Diagonal Federalism and Climate Change: Implications for the Obama Administration (Alabama Law Review) on SSRN. Here's the abstract:
The Obama Administration’s efforts on climate change continue to face daunting challenges domestically and internationally. This Article makes a novel contribution by exploring how the Obama Administration can meet these challenges more effectively though systematically addressing the multiscalar character of climate change in the areas where it has greater regulatory control. Mitigating and adapting to climate change pose complex choices at individual, community, local, state, national, and international levels. The Article argues that these choices lead to many diagonal regulatory interactions: that is, dynamics among a wide range of public and private actors which simultaneously cut across levels of government (vertical) and involve multiple actors at each level of government that it includes (horizontal).
After assessing the Obama Administration’s progress on climate change and energy issues, this Article develops a theory of diagonal federalism to explore how the Obama Administration might engage in more effective crosscutting regulatory approaches. It proposes a taxonomy for under-standing how these diagonal interactions vary across multiple dimensions over time. Specifically, the taxonomy includes four dimensions: (1) scale (large v. small); (2) axis (vertical v. horizontal); (3) hierarchy (top-down v. bottom-up); and (4) cooperativeness (cooperation v. conflict). The Article then applies this taxonomy to the case example of the Obama Administration’s efforts at reducing motor vehicle greenhouse gas emissions to demonstrate how it can be used as a tool in policy-making.
The Article argues that existing diagonal efforts to regulate what cars we drive tend to be predominantly large-scale, vertical, and top-down, in line with their direct impact on automobile companies. In contrast, approaches targeting how we drive those cars, which affect those companies less directly and are grounded in land use planning, are more likely to be small-scale, horizontal, and bottom-up. This divergence creates an opportunity for normative reflection. The Article argues that the Obama Administration should consider whether these skews are appropriate by taking into account the benefits and limitations of such skews in particular contexts. It then proposes ways in which the Administration could create more balance in the dimensions and argues for the value of that balance. Specifically, the Obama Administration could explore additional opportunities for (1) greater smaller-scale governmental involvement in technology-oriented financial incentives programs; (2) federal-level, top-down, vertical initiatives connecting federal approaches to highways, railroads, and gas prices with smaller-scale efforts to have people drive less in their communities; and (3) litigation, which often has a rescaling effect, by interested individuals, non-govermental organizations, corporations, and government.
The Rise of ARMs
The New York Times reports that more borrowers are opting for adjustable rate mortgages:
In the years since the financial crisis, adjustable-rae mortgages, or ARMs, with their low initial interest rates that changed over time, have been considered riskier than fixed-rate loans and shunned by most buyers. But these days more people are being persuaded to give the loans a try.
Mortgage brokers and lenders say the loans most in demand are the “5/1” and “7/1,” in which the initial interest rate is fixed for the first five or seven years — after which many homeowners typically think about selling or refinancing anyway — then adjusted annually at a capped rate toward a maximum level.
[Comments are held for approval, so there will be some delay in posting]
March 20, 2011
Brennan on Indigenous Property Rights in Australia
Sean Brennan (New South Wales) has posted Statutory Interpretation and Indigenous Property Rights (Public Law Review) on SSRN. Here's the abstract:
Four recent decisions concerning a) native title and b) statutory land rights confirm that the approach of the High Court to statutory interpretation has become a focal point in defining the relationship between indigenous peoples and the wider Australian community. These recent decisions and the longer-range judicial development of Australian law on Indigenous property rights raise questions about the consistency with which traditional common law principles of interpretation have been applied. After more than three decades of statutory land rights in the Northern Territory, recent developments suggest a perhaps higher than suspected capacity for Australian law and politics to accommodate strong Aboriginal property rights and decision-making power. This raises questions whether the legal containment of native title by judges and politicians in the aftermath of Mabo (No. 2) was an over-reaction to uncertainty and somewhat of a missed opportunity.