Friday, August 5, 2011
Designing American Embassies is really hard:
Ever since the bombing of the American embassy in Beirut in 1983, security has been the overarching concern when designing new embassies. Safety rules have been tightened repeatedly, and incorporated into a “standard embassy design” that dictates which offices should be adjacent to which (keep the bigwigs away from the public areas), how far embassy buildings should be set back from nearby roads (100 feet, or 30 metres), what materials can be used for walls and windows (nothing that is easy to climb or shatter) and so on. The result, critics say, is a dull series of near-identical, boxy bunkers. As John Kerry, who heads the Senate foreign-relations committee, put it in 2009, “We are building some of the ugliest embassies I’ve ever seen…I cringe when I see what we’re doing.”
But is does appear that the State Department is trying to improve.
Jim Rossi (Florida State) has posted Clean Energy and the Price Preemption Ceiling on SSRN. Here's the abstract:
Since the New Deal, federal preemption has precluded many state and local regulatory decisions that depart from wholesale electric prices determined under federal standards. Recent decisions treat prices that meet the federal standard as a preemption ceiling, which prohibits states from setting prices that exceed the wholesale price set in a competitive market. Both appellate courts and the Federal Energy Regulatory Commission (“FERC”) - the primary federal agency responsible for the electric power sector - have recently applied a price preemption ceiling to clean energy policies.
I argue in this Article that this price ceiling preemption approach hobbles the advancement of clean energy policy under both federal and state laws. State and local governments, along with regional institutions, have adopted a number of clean energy innovations, including feed-in tariffs for renewable power, novel approaches to transmission siting and cost allocation, and energy conservation policies. As subnational governments today consider how to encourage clean energy investments, they are increasingly bumping into limitations imposed by FERC and the courts under the Supremacy Clause of the U.S. Constitution.
Imposing a legal preemption ceiling on clean energy prices thwarts the ability of subnational governments to adopt policies that advance conservation and renewable energy goals. I argue that reassessing application of wholesale price ceiling preemption to regional, state and local clean energy innovations will allow courts and federal regulators to more effectively imagine the ability of federal energy laws to advance clean energy goals.
Thursday, August 4, 2011
First-year property doctrines are alive and well! In case you missed it last week, the doctrine of adverse possession was splashed all over the news. Kenneth Robinson is attempting to claim adverse possession over a foreclosed home in a wealthy suburb outside of Dallas. As Tun-Jen Chiang notes, Robinson's plan doesn't seem particularly well-thought out. Texas has a 10 year statute of limitations. It seems likely that sometime before 2021, the bank get the foreclosure process sorted out and have Robinson removed. But, until then, Robinson has a fancy home in a nice neighborhood.
What's most surprising to me is how pissed-off the neighbors seem. Sure, it's not great to have a glorified squatter around, but it's surely better than having a string of abandoned properties on the block.
Here's an article from Slate that explains how we could make our streets safer and more efficient with increased use of "diverging diamond" highway interchanges. The key insight of the "DDI" is that it eliminates the number of left hand turns that drivers need to make. Left hand turns, it seems, are the bane of traffic engineers:
The left-turning vehicle presents not only the aforementioned safety hazard, but a coagulation in the smooth flow of traffic. It's either a car stopped in an active traffic lane, waiting to turn; or, even worse, it's cars in a dedicated left-turn lane that, when traffic is heavy enough, requires its own "dedicated signal phase . . . ."
Sean Nolon (Vermont) has posted Negotiating the Wind: A Framework to Engage Citizens in Siting Wind Turbines (Cardozo Journal of Conflict Resolution) on SSRN. Here's the abstract:
Electricity generated from wind turbines must be a central part of any renewable energy regime. The build out of any wind energy infrastructure policy relies on facility siting decisions at the local and state level. Local opposition in some areas has created an implementation impasse that is best addressed from a systematic perspective, recognizing that citizens play a central role in making significant land use decisions. Through this article, the author explores the nature of citizen opposition to locally unwanted land uses like wind turbines and proposes a suite of collaborative mechanisms to address concerns through effective citizen engagement in policy development and during local siting decisions. The author proposes a federal structure that provides incentives to encourage collaborative governance at the state and local level. The framework leaves state siting structures in place and provides resources to improve decision-making processes and the outcomes. By involving citizens effectively at the policy and siting level, the hope is that wind turbine siting decisions will be more effective. Instead of encouraging divisions among the levels of government, this model builds on their strengths and supports their weaknesses.
Wednesday, August 3, 2011
Jonathan Rosenbloom (Drake) has posted New Day at the Pool: State Preemption, Common Pool Resources, and Non-Place Based Municipal Collaborations on SSRN. Here's the abstract:
State preemption laws strictly limit local governments from regulating beyond their borders. In contrast, local governments face a broad spectrum of challenges which cannot be confined to municipal borders. These challenges freely flow in and out of many local jurisdictions at the same time. The juxtaposition of limited local government authority and multi-jurisdictional local challenges has the potential to create inefficiencies and to discourage local governments from seeking innovative solutions to the challenges they face. In an attempt to help local governments avoid these inefficiencies, this article investigates whether municipal collaborations can help encourage local governments to address broad-based environmental, social, or economic challenges notwithstanding state preemption laws. The article draws on 2009 Nobel Memorial Prize winner in Economic Sciences Elinor Ostrom’s work and applies it to a new context. Guided by Ostrom’s research on place-based, individual private sector collaborations, public sector municipal collaborations are envisioned as forming around common challenges, regardless of geographical location. The non-place based municipal collaborations are proposed as a rethinking of existing local government authority, and not a reallocation of authority from higher levels to the local level. They seek to capitalize on the power local governments already have without departing from existing legal paradigms.
The objective of the article is not to suggest one strategy over another or one level of government action over another, but rather to propose an additional forum for local governments to address pressing local problems. By changing the motivating factors and the perspective on local sovereignty, the article recognizes that some issues are best addressed through collaboration among municipalities.
Tuesday, August 2, 2011
Sometimes it's ok to mix public property and religious purpose:
|The Daily Show With Jon Stewart||Mon - Thurs 11p / 10c|
|The Thin Jew Line|
What the video here doesn't capture is that an eruv requires an additional mandatory legal component. In order to create a valid eruv under Jewish law, a local government official must issue a (ceremonial) lease of the enclosed area to the Jewish community for a (nominal) fee. This lease is essential because it symbolically converts the public domain into a private space. The enclosed space then allows Orthodox Jews to carry objects outside their home on the Sabbath.
For an extended scholarly discussion of eruvs and the disputes they've generated, see Alexandra Susman, Strings Attached: An Analysis of the Eruv Under the Religion Clauses of the First Amendment and the Religious Land Use and Institutionalized Persons Act.
(HT: Thanks to Ashira Ostrow for the discussion of the eruv at SEALS)
Dov Solomon (Academic Center for Law & Businesss) and Odelia Minnes (Bar-Ilan) have posted Non-Recourse, No Down Payment and the Mortgage Meltdown: Lessons from Undercapitalization (Fordham Journal of Corporate Law). Here's the abstract:
The recent global financial crisis, sparked by developments in the American mortgage market, provides a timely opportunity for a thorough analysis of the standard model for financing home purchases. The United States residential mortgage market has two prominent aspects: first, a significant part of mortgages are de facto non-recourse loans that allow the borrower to limit his liability solely to the collateral securing the loan; second, residential mortgages confer the aforementioned advantage on borrowers while requiring merely a minimal down payment, or no down payment at all. This article examines the implications of each of these aspects, as well as the interplay between them. The findings of this examination lead to the novel insight that a non-recourse mortgage with no initial down payment resembles the case of corporate undercapitalization. Utilizing legal analysis and remedies applied in the case of corporate undercapitalization lends insight into creating mortgage arrangements that properly balance the competing interests of the various players in the home ownership credit market.
Monday, August 1, 2011
The Israeli government is currently facing massive, nation-wide protests over the high cost of housing. On Saturday, 150,000 seemingly middle-class people took to the streets to demand socioeconomic change and "social justice." The anger has the Prime Minister Netanyahu so spooked that he's canceled a trip to Poland to deal with the situation.
As the New Yorker reports, the protesters "aren’t saying they can’t afford to get by, just that they can’t afford to live in the city. And the protesters contend that Israel has no Brooklyn or Scarsdale equivalent. One of them, Shlomo Krauss, criticized the outskirts of Israel for “their dubious infrastructure, failing public transportation and zero employment opportunities” in a widely circulated op-ed laying out the protesters’ gripes, with the headline, “Don’t call us spoiled.” Some sources estimate that the price of buying an apartment has gone up 55% over the five years, while rents have increased by 27% .
For me, the big surprise is how anti-market the protesters seem. They're calling for the government to "immediately get involved in the housing market. [T]hey would like to see fair housing for all, achieved by the construction of public housing projects, in addition to government oversight over the rentals market."
From an outsiders perspective, the problem looks very, very different; If anything it seems like there's way too much government involvement in the housing market already. The Israel Land Administration controls a huge chunk of the country's property, while the nation's planning bureaucracy moves at an infamously slow pace. Free up more land for development and you'll get more apartments. Moreover, there's clearly a title security problem that needs addressed (and no one seems to mention). Who wants to invest in infrastructure anywhere near the border before a lasting peace has been established?
(image found with creative commons search)
1. [440 downloads] Federal Constitutions: The Keystone of Nested Commons Governance by
Blake Hudson (Stetson)
2. [248 downloads] The Hamlyn Lectures 2011: The Rule of Law and the Measure of Property by
Jeremy Waldron (NYU)
3. [148 downloads] Stop the Beach Renourishment and the Problem of Judicial Takings by
Ilya Somin (George Mason)
4. [125 downloads] REITS and Underlying Real Estate Markets: Is There a Link? by
Andrey D. Pavlov (Simon Fraser) & Susan M. Wachter (Wharton)
5. [101 downloads] Commercializing Property Rights in Inventions: Lessons for Modern Patent Theory from Classic Patent Doctrine by Adam Mossoff (George Mason)
9. [73 downloads] The Columbia River Gorge and the Development of American Natural Resources Law: A Century of Significance by Michael C. Blumm (Lewis & Clark)