Friday, June 3, 2011
I’ve been loosely following the commentary on the recent prison litigation case out of the Supreme Court. To recap, in Brown v. Plata, the Court ruled that California’s prisons are so overcrowded that they violate the Constitution’s ban on cruel and unusual punishment. What’s really eye-catching is that Justice Kennedy, writing for the majority, attached three black-and-white photographs of the prisons to the opinion. The pictures are pretty horrible and remind you that jails are terribly dehumanizing places.
This is all a rather long way of saying that I started wondering if there were any really beautiful prisons out there. Can our sites of incarceration inspire as well as punish? Here’s a completely unscientific list of what I think are the ten most beautiful prisons in the world:
10. Yancheng Prison (Jiangsu Province, China): Allegedly, Yancheng Prison is modeled on the U.S. White House. It boasts an Olympics-sized running track, a conference centre, luxury offices, and potted plants by every cell door. According to the internet, this is where China sends Communist Party officials accused of abuse of power or corruption.
9. The Montgomery Burns State Prison (Springfield): The town of Springfield commissioned a Frank Gehry-designed concert hall, which went bankrupt overnight. The town then converted the structure into a high security prison.
4. East Jutland State Prison (Horsens, Denmark): Each building surrounds a natural dip in the ground, and has a view of the inner courtyards and gardens of the prison. There are also many views of the surrounding agricultural landscape.
3. Philadelphia Eastern Penitentiary (Philadelphia, PA): I half expect a knight in shining armor to appear on the turrets.
1. Allegheny County Jail (Pittsburgh, PA): Designed by Henry Hobson Richardson and consistently ranked as one of the most beautiful buildings in the United States. The design is considered quite innovative in that it’s built around an interior courtyard. This feature allows natural light and fresh air to reach most corners of the building. As was common with Richardson’s other buildings, the roof is steep and has dormers placed at all the corners. Also worth noting, The prison is connected to the courthouse by the “Bridge of Sighs.” The design was based on the Bridge of Sighs in Venice.
Ilya Somin (George Mason) has posted Stop the Beach Renourishment and the Problem of Judicial Takings (Duke Journal of Con Law & Public Policy) on SSRN. Here's the abstract:
Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection was the Supreme Court’s first effort to address the problem of judicial takings: whether or not a judicial decision can ever qualify as a taking that requires compensation under the Takings Clause of the Fifth Amendment. Unfortunately, a divided Court failed to resolve the issue, which is now left for future cases.
This article argues that judicial takings do exist. I also explain why this conclusion would not require federal courts to take on any unusual administrative burdens. Part II briefly discusses the background of Stop the Beach. In Part III, I defend Justice Antonin Scalia’s conclusion that “the Takings Clause bars the State from taking private property without paying for it, no matter which branch [of government] is the instrument of the taking.” This principle follows logically from both the text and the original meaning of the Fifth Amendment. Various rationales for distinguishing judicial takings from other takings do not overturn this simple but sound conclusion.
Part IV addresses claims that enforcing a takings doctrine would lead federal courts into severe practical difficulties. A judicial takings doctrine would not require legal principles significantly different from or more complicated than other takings claims. Justice Stephen Breyer and others are wrong to suggest that such a doctrine would “invite a host of federal takings claims” that federal judges would be unable to handle.
Thursday, June 2, 2011
Slate argues that, "the American economy is making a significant shift from buying to renting, and that may ultimately be good news." More specifically, the piece makes the case that:
Contrary to the housing-bubble dogma that a mortgaged apartment or house provides a pathway straight to the American Dream—and contrary to the tax code, which encourages buyers and discourages renters with a huge break for mortgage interest—renting is better than owning for many Americans. Indeed, dozens of recent studies have shown that, excepting the go-go bubble years, houses tend not to make very good investments at all: A prospective homebuyer would have made more money taking her down payment, parking it in inflation-adjusted Treasury bonds, and renting.
This is all well and good (and true), but the author ignores a lot of the other, non-economic benefits of homeownership. First, there's the security of knowing that, as long as you make the payment, no one can take the place away from you. The landlord can't turn your dwelling into condos at the end of the year. Second, there are real autonomy benefits to home ownership. You have the freedom (and incentive) to install expensive window treatments, granite countertops, and the hot tub of your dreams. Finally, other than wearing sweater-vests, there's just nothing else in our national culture that signals a person is mature, and trustworthy, and respectable like owning a home.
A house may not be a good investment, but it is a terrific consumption good.
Here's a slideshow from the Daily Beast:
To put together the list of the top towns for recent graduates, we looked at the cities through the lens of the basics of quality of life: housing, employment, affordability, and relationships. The cities that land among the top 25 have relatively low unemployment, high average salary per capita, a low cost of living, a high portion of housing units devoted to rental properties, and a large population between ages 22 and 24.
Patricia Salkin (Albany) has posted Facility Siting and Permitting (book chapter) on SSRN. Here's the abstract:
The manner in which governments approve facility siting and permitting for renewable energy projects is a key consideration in both project design and the cost-benefit analysis of project feasibility. A variety of federal, state and local laws may be implicated depending upon the magnitude of the project and the geographic location of the project site. In addition to the application of a suite of environmental review related statutes for proposed clean energy projects, public participation issues as well as land acquisition issues may be present. At times, federal and state preemption may factor into the siting and permitting analysis, and local zoning and building code laws and regulations may also affect projects. This chapter is designed to provide an overview of whether and how these laws apply to siting and permitting applications.
Wednesday, June 1, 2011
1. [479 downloads] Federal Constitutions and Global Governance: The Case of Climate Change by Blake Hudson (Stetson)
8. [68 downloads] The Due Process Rights of Residential Tenants in Mortgage Foreclosure Cases by Henry Rose (Loyola Chicago)
Paul Kohler (University of London) has posted Recognition of New Property Interests (book chapter) on SSRN. Here's the abstract:
In this chapter, we will consider the essentially dynamic quality of property. While it is important that the categories of property are clear and certain, it does not follow from this that the list should be eternally fixed and incapable of development. As you will see, there is constant pressure to recognize new property interests, although, for reasons we shall examine, it is not easy for an interest to cross the threshold into property. However, the history of property bears witness to the constant expansion of the range of property interests in response to society's changing needs and increasing complexity. In section 9.1 we will consider the reasons why the property label is (and is not) attached to certain interests. While in section 9.2, we shall illustrate the dynamic nature of property by examining examples of interests that have (at least intermittently!) been accorded proprietary status. We will contrast this, in section 9.3 where we consider the law's general reluctance to embrace new property interests, with an example that did not even fleetingly cross the property threshold. This will enable us to examine the principles which underscore the recognition of new property interests before subjecting them to a critical evaluation, in section 9.4, when we consider a comparative and economic study which casts doubt on much that has gone before. Finally, in section 9.5 we will turn to speculate on possible new directions in which the law of property might develop.
Tuesday, May 31, 2011
The clock is running out on a unique and valuable opportunity for junior property professors -- participation in the American Bar Association Real Property Trust, and Estate Law Fellows Program. The application deadline is June 17, 2011. (Sorry for the late notice.)
I was an ABA-RPTE Fellow about five years ago, and it was one of the most valuable professional experiences I've had. It is literally the fast-track to leadership in the section, which can be valuable to junior Property Profs for a number of reasons.
1. If you never practiced in real estate prior to joining the academy (or practiced briefly), the twice-annual ABA-RPTE leadership meetings (paid for by the ABA during the Fellowship!) are an incredible opportunity to meet senior practitioners and gain ideas, tips, and forms. (Note: after the two-year fellowship is completed, you should, if you met expectations, etc., be appointed to a leadership post in the section. I am a vice-chair of a substantive committee.)
2. If you did practice real estate prior to joining the academy, the ABA-RPTE leadership meetings are a great way to stay on top of changing conditions in real estate practice, and to incorporate those new lessons learned into the classroom.
3. ABA-RPTE section leadership includes several noted property profs. So if you go to the leadership meetings, you get to hang out with and get to know experienced and generous property profs. (Who will read and comment on your articles if you ask nicely!)
4. You get great, random opportunities. At the fall leadership meeting last fall, I happened to attend the breakfast meeting of the Uniform Laws Committee. I walked out of the meeting with an assignment to do some research on a particular topic, which is the focus of an article that I'm writing this summer and a report that I'm presenting to the Joint Editorial Board at NCCUSL later this year.
5. You get opportunities to present your research. At the recent Spring Symposium in Washington, D.C. (which doubles as the spring leadership meeting), I co-presented a CLE on "Rethinking Real Estate Remedies in Troubling Times." This was an adaptation of an article that I published in the Nebraska Law Review last summer on the uniqueness doctrine, tweaked for an audience of transactional real estate attorneys. I presented with a current litigator and we had 65 people in the audience, literally standing room only for 90 minutes. Not only was that presentation good PR for my scholarship, but it was a well-received CLE that actually said something useful and practical. In a few months, we are going to offer the same program as an eCLE, which will be advertised broadly throughout the ABA.
So, education, networking, opportunities to share your scholarship. What else do you need?
The application materials can be found here. Please feel free to e-mail me directly if you have any questions about the program!
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Johan Huibers, a successful construction magnate in the Netherlands, has spent the last few years building a replica of Noah's Ark. Unlike Noah, Mr. Huibers has run into all kinds of trouble with the Dutch fire code and a handful of complaining neighbors:
Mr. Huibers had to conform to Dutch fire safety standards. To do so, he installed a special anchor that qualifies the 2,970-ton ark as a building, rather than a vessel. Moreover, he will have to paint the ark, inside and out, with three coats of fire-retardant varnish. (Noah covered his ark with pitch, making it waterproof but hardly fire retardant.)
And then there are the neighbors.
“The ship takes away our view,” complained Gerrit Kruythoff, 65, who has lived with his wife and family for 42 years in the trim brick row house next to the disused shipyard where Mr. Huibers is toiling, with the help of two of his three children and a handful of friends.
(image pulled from www.thefunctionality.com with creative commons search)
David Reiss (Brooklyn) has posted Foundations of Federal Housing Policy (book chapter) on SSRN. Here's the abstract:
Federal housing policy is heavily funded and made up of a morass of programs. This book chapter provides a taxonomy of goals for housing policy. The chapter first asks what the aim of housing policy is. In other words, what can a well-designed and executed housing policy achieve? The answer to this question is not at all clear-cut. Some argue that the aim of housing policy is to allow all Americans to live in safe, well-maintained and affordable housing. Others argue for a more modest aim – achieving an income transfer to low- and moderate-income families that mandates that the income transferred is consumed in increased housing. And yet others argue that the main aim is to create a nation of homeowner-citizens, a goal which hearkens back to Jefferson’s idealized “yeoman farmer” and continues through to George W. Bush’s "ownership society."
Beginning with these possibilities, I identify and categorize various "principles" of American housing policy. This is an important exercise because 80 plus years of housing policy; hundreds of billions of dollars; and literally hundreds of different housing programs have all conspired to confuse the essential aims of American housing policy. This chapter seeks to clarify debates surrounding American housing policy as the Obama Administration puts its own stamp on this field.
Monday, May 30, 2011
I'm back in the Czech Republic, teaching comparative property rights to American law students at Charles University in Prague.
On the way here I had the opportunity to stroll through the Old Town area of Warsaw (strategic layovers are my plan to see the world). Warsaw was essentially completely destroyed between 1943 and 1945, particularly following the Home Army uprising of 1944 against Nazi rule. Thus the Old Town I strolled through was, in many ways, not so old: it looked old, but that's because the buildings had been rebuilt to look exactly as they were. The same is true of many old sections of Berlin.
Knowing that left me with a lingering and disturbing sense that it wasn't "real," but I'm not sure I can justify that feeling. After all, if each building had, at different times, been rebuilt because it was becoming dilapidated, I certainly wouldn't think the area wasn't "real." The White House was rebuilt after an invading army burned it to the ground, but no one I know walks through it thinking it's just a replica. People live and work in those buildings. So why couldn't I shake the feeling that it was a trip through the architectural equivalent of Madame Tussaud's?
It strikes me that in ways that are difficult to describe, some buildings, and some places, seem to have properties we associate with a living being. Perhaps the lives they were imbued with became part of them. Perhaps they have, some how, independent lives of their own. Perhaps it has something to do with the violence with which they were destroyed. But whatever the reason, at a gut level, walking through Warsaw, I had an eerie, 'invasion of the body-snatchers' sense that the beautiful buildings around me were -- in both a literal and figurative sense -- a facade.
As my poor attempts a photography below show, the beauty of the place isn't diminished at all by the buildings having been rebuilt. Only my sense of ease was, and only because there is something unique and mysterious about property, that is beyond my attempts to define it, that gives it a sense of life.
Mark A. Edwards
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In honor of Memorial Day and the brave men and women who fight in our name, I thought I'd post a little about one PropertyProfs favorite topics: cemeteries. The picture above comes from The Normandy American Cemetery in Colleville-sur-Mer, France. In addition to Normandy, there are four other cemeteries in France that contain the graves of American soldiers who fought in WWII - Rhone, Lorraine, Epinal, and Brittany.
Of interest from a property standpoint, these ceremonies are technically American soil. France has granted the United States a perpetual concession to the land, free of any charge or any tax. The Normandy cemetery is currently managed by the American Battle Monuments Commission, an agency of the Executive Branch of the Federal Government. The Commission is the guardian of all America’s overseas commemorative cemeteries and memorials. It manages sites in Papua New Guinea, the Solomon Islands, France, the Philippines, Belgium, Gibraltar, Mariana Islands, Cuba, Morocco, Panama, Tunisia, Mexico, Italy, Netherlands, England, and Luxembourg.