Friday, August 12, 2011
Ilya Somin (George Mason) has posted Federalism and Property Rights on SSRN. Here's the abstract:
Both the Supreme Court and leading legal scholars have often cited federalism as a reason to severely limit federal judicial enforcement of constitutional property rights. Defenders of the federalism rationale for judicial deference on property rights issues make two key arguments. One holds that abuses of property rights by state or local governments will be curbed by interjurisdictional competition, rendering judicial intervention unnecessary. The second is the superior knowledge and expertise of state and local governments relative to federal judges.
This article criticizes both claims. Part I explains why competitive federalism is unlikely to provide effective protection for property rights in land because property is an immobile asset. People who “vote with their feet” by leaving a jurisdiction cannot take their land with them. For this crucial reason, interjurisdictional competition will often fail to effectively protect property rights in land, though it may be more useful in the case of rights to mobile property.
Part II takes up the issue of diversity and expertise. While state and local governments may indeed have greater expertise than federal courts in assessing local conditions, federal judicial protection of property rights ultimately empowers not judges but property owners. It is the latter who will actually get to decide the uses of the land in question in cases where federal courts prevent state or local governments from condemning their property or restricting its use. Owners generally have greater knowledge of their land than local government officials do. Moreover, the local expertise rationale for judicial deference on property rights would, if applied consistently, justify judicial deference to state and local governments with respect to numerous other constitutional rights, including those protected by the First and Fourth Amendments.
Thursday, August 11, 2011
Last summer, Tanya had a great post on what she'd save from her house if it caught on fire. It's a provocative question that revels a lot about what a person values. Well, there's now an amazingly cool (and beautiful) website devoted to the question. The Burning House posts photos of the items that people would grab in their moment of truth. Here's my entry:
Signed Copy of Fagles' The Odyssey
Grandfather's Anthology of American Negro Literature
Hopi Wedding Vase (gift from Oklahoma Judge who married us)
Ben, the stuffed bear
Dad's Bicyclette Keychain
Data junkie Matt Stiles has mapped incidents from the rioting in London and overlayed that with statistics on neighborhood deprivation. The interactive map feature shows that the trouble has been almost completely confined to low income areas.
Hanoch Dagan (Tel Aviv) has posted Restitution and Relationships (Boston University Law Review) on SSRN. Here's the abstract:
This Essay examines how restitutionary doctrines protect the integrity of certain types of relationships by providing guarantees against betrayal of trust and by making free-riding a losing proposition. It also considers contexts wherein restitution serves to recruit third parties, meaning parties external to the relationship the law seeks to safeguard, as indirect guardians.
More broadly, this Essay challenges the schism between autonomy-based and utility-based accounts of restitution or of private law more generally, and explains how a pluralist theory may help to address this flaw.
Jared Bybee (NYU fellow) has posted Fair Lending 2.0: A Borrower-Based Solution to Discrimination in Mortgage Lending on SSRN. Here's the abstract:
Fair lending promises that borrowers of similar credit profiles will receive similar loan products - regardless of their race. Yet, study after study reveals that black and Latino borrowers consistently receive loan products that are inferior to those of white borrowers with similar credit characteristics. Despite frequent amendments since their passage during the Civil Rights Era, the Fair Lending Laws that opened doors that were once completely closed to minority borrowers are unable to root out the subtle discrimination that persists in today’s mortgage lending market. These traditional Fair Lending Laws are built on an outdated framework that focuses exclusively on punishing lenders and righting past wrongs. This article proposes a new borrower-based approach to solving discrimination in lending. This new framework gives borrowers the tools to effectively understand and compare loan offers, reduces the complexity of loan products, and enhances the ability of borrowers to receive loan offers from a variety of potential lenders. This article also provides examples of tools derived from the new borrower-based approach, including a novel loan comparison report, that have the potential to take us the last mile toward a true fair lending environment.
Wednesday, August 10, 2011
The new volume of the Pace Environmental Law Review runs a series of articles on teaching practical skills in Land Use classes. Property profs may particularly enjoy:
Matt Festa's, Academic Research and Writing as Best Practices in a "Practically Grounded" Land Use Course
Keith Hirokawa's, Teaching from the Dirt: Best Practices and Land Use Law Pedagogy,
Tuesday, August 9, 2011
Huge turnouts at a new round of housing/quality-of-life protests over the weekend:
Add up the estimates of 300,000 in Tel Aviv and 30,000 in Jerusalem and more elsewhere and you come to this startling idea: one out of every 20 Israelis was on the streets demanding a better country Saturday night – the equivalent of three million people in France, four million in Egypt, 15 million in the United States. And those comparisons themselves shatter, because, as Ma’ariv’s NRG site reported, the police couldn’t possibly keep track of the crowd that broke down gates and overflowed into alleys and side streets. Or as a police source told the paper: “This is the biggest demonstration we’ve ever, ever faced. We’re seeing hundreds of cars that have simply been left on the Ayalon Freeway and people are walking to the demonstration.” And that’s besides the people who couldn’t get on the overpacked trains to Tel Aviv.
(HT: Andrew Sullivan)
The United Nations Human Settlements Programme, concluded that more than one billion people live without any security of tenure in informal settlements in “developing” countries. If “land is not just a resource to be exploited, but a crucial vehicle for the achievement of improved socioeconomic, biological, and physical environments” (FAO), then access to land ensures the security and health of the poor. The politics of access to and exploitation of land and natural resources assume fundamental relations of power control and the policy of social inclusion; however, both notions imply and consolidate that access to land and land ownership, particularly in the Global South, reflect broader patterns of intra-institutional dynamics that explain how marginality and socio-political exclusion take place within countries and on the global stage.
Christian Bjørnskov (Aarhus) and Niclas Berggren (The Research Institute of Industrial Economics) have posted Does Religiosity Promote or Discourage Property Rights and the Rule of Law? on SSRN. Here's the abstract:
Social and cultural determinants of economic institutions and outcomes have come to the forefront of economic research. We introduce religiosity, measured as the share for which religion is important in daily life, to explain institutional quality in the form of property rights and the rule of law.
Previous studies have only measured the impact of membership shares of different religions, with mixed results. We find, in a cross-country regression analysis comprising up to 112 countries, that religiosity is negatively related to our institutional outcome variables. This only holds in democracies (not autocracies) and for de facto (not de jure) measures, which suggests that religiosity affects the way institutions work through the political process.
Monday, August 8, 2011
In 2009, New York opened High Line Park to rave reviews. The city (and its allied private foundations) converted an unused stretch of elevated train tracks into a greenspace. By all accounts the High Line as been a smashing success; it's spurred new investment throughout the old Meatpacking District.
In fact, the park has been so successful that now other cities such as Chicago, Philadelphia, Detroit, and St. Louis, are working to transform elevated train trestles into public spaces.
New Yorkers shoud be furious. These copycats are pulling a fast one the taxpaying citizens of the Big Apple. Afterall, New York took a big risk putting up the High Line. The 1-mile section cost over $150 million to renovate and, at the time, nobody had any idea if it would pay off. If the park had bombed, New York would have had to pay the costs all on its own. And now that the idea is successful the city cannot fully internalize the costs benefits of its risk-taking. That's bad.
The solution, I think, is to grant cities intellectual property in their innovations. Just as patents promote risky but ultimately valuable scientific experimentation, granting some form of IP protection to cities and states could result in a socially beneficial upsurge in municipal experiments.
It's easy to complain that our local governments don't do enough and that politicians lack the courage to enact bold new ideas, but in practice they have very few incentives to try genuinely new things. It's much easier to sit back and copy the ideas of others (I'm looking at you Chicago). Some form of intellectual property rights could fix that. Think this idea is too far out? Well, someone has already written an Article explaining why I'm right.
(HT: Carol Rose for the High Line article)
According to the LA Times, an unusually large number of home purchase contracts are falling through. Lawrence Yun, chief economist of the National Association of Realtors, thinks that low-ball appraisals and tough mortgage underwriting are the main culprits. Interviews with realtors, however, suggest another cause:
Buyer confidence about the direction of the national economy has been badly rattled in the last six to eight weeks by the gridlock in Congress over raising the national debt ceiling and cutting the deficit. That is making buyers less willing to take a risk on a major purchase, brokers say. It's also making them pickier and more demanding when defects are found in home inspections and frequently is leading to contract cancellations for relatively minor reasons.
Charles Lamb (SUNY Buffalo - Political Science), Eric Wilk and Nicholas Seabrook have posted The Right to Fair Housing: It's Development, Growth, and Enforcement on SSRN. Here's the abstract:
The right to fair housing was initially created by the Thirteenth and Fourteenth Amendments and the Civil Rights Act of 1866. During the twentieth century, however, state governments adopted laws prohibiting various types of housing discrimination before Congress enacted the most important federal guarantee - the Fair Housing Act of 1968 (Title VIII of the Civil Rights Act of 1968). Indeed, not only did state governments precede the federal government in expanding the right to fair housing between the late 1930s and 1968, but state laws were usually broader than Title VIII in both their coverage and administrative enforcement provisions. Title VIII also strongly encouraged the expansion of fair housing rights at the state and local levels by requiring that subnational governments have the first opportunity to enforce the Fair Housing Act if they passed legislation substantially equivalent to Title VIII. This cooperative federalism requirement has dramatically influenced the growth and enforcement of fair housing rights. States and localities throughout most of the nation have significantly strengthened the right to fair housing since the early 1980s, increasingly enforcing Title VIII. To determine how well this cooperative federalism arrangement is working, we first compare the enforcement performance of HUD and state and local civil rights agencies along several dimensions by relying on two data sets obtained from HUD. Using one of these data sets, we then explore the extent to which federal, state, and local agencies provide outcomes favoring complainants in housing discrimination cases. We find that Title VIII enforcement at the state and local levels is often better than HUD enforcement. We further conclude that state civil rights agencies resolve complaints in favor of complainants nearly as often as HUD and that localities sometimes do so even more frequently. We address policy implications briefly in our conclusions.