Friday, March 16, 2012
Over that Volokh, Ilya Somin follows up on a potentially important takings case that the Supreme Court may decide to hear:
When I first heard about this case, my reaction was that it was probably precluded by the Supreme Court’s 1992 decision in Yee v. Escondido, which ruled that a California statute imposing rent control on mobile home parks was not a taking, even though state law allowed tenants to renew the rent-controlled leases indefinitely even against the will of the owners. I am no fan of the Yee decision, but the Court is unlikely to overrule it in the near future.
However, there is a crucial difference between Harmon’s case and Yee. In the latter, the Court emphasized that there was no permanent physical occupation of the owners’ property because “the Mobilehome Residency Law provides that a park owner who wishes to change the use of his land may evict his tenants” so long as he then uses the property for something other than a mobile home park. By contrast, as Root describes, the New York City rent control law does not allow Harmon and other landlords to evict their tenants even if they do wish to use the property for something other than rental housing. Effectively, therefore, this is a government-imposed permanent physical occupation of property.
Henry Smith (Harvard) and Yun-chien Chang (Academia Sinica - Taiwan) have posted An Economic Analysis of Civil versus Common Law Property (Notre Dame Law Review) on SSRN. Here's the abstract:
Common law and civil law property appear to be quite different, with the former emphasizing pieces of ownership called estates and the latter focusing on holistic ownership. And yet the two systems are remarkably similar in their broad outlines, for functional reasons. This paper offers a transaction cost explanation for the practical similarity and the differing styles of delineating property and ownership in the two systems. As opposed to the “complete” property system that could obtain in the world of zero transaction costs, actual property systems employ structures characterized by shortcuts in order to achieve property’s substantive goals of protecting interests in use. Overlooking this structure leads to the bundle of rights picture of property, even though property is a structured bundle of relationships. The architecture of property consists in part of four basic relationships, and a number of characteristic features of property automatically arise out this architecture, including exclusion rights, in rem status, and running to successors. Where civil law and common law differ is in their style of delineation, which reflects the path dependence of initial investment in feudal fragmentation in the common law and Roman-inspired holistic dominion in civil law. This transaction cost explanation for the functional similarities but different delineation process in the two systems promises to put the comparative law of property on a sounder descriptive footing.
Thursday, March 15, 2012
Troy A. Rule (Missouri) has posted Airspace and the Takings Clause on SSRN. Here's the abstract:
This Article argues that the U.S. Supreme Court’s takings jurisprudence fails to account for instances when public entities restrict private airspace solely to keep it open for their own use. Many landowners rely on open space above adjacent land to preserve scenic views for their properties, to provide sunlight access for their rooftop solar panels, or to serve other uses that require no physical invasion of the neighboring space. Private citizens typically must purchase easements or covenants to prevent their neighbors from erecting trees or buildings that would interfere with these non-physical airspace uses. In contrast, public entities can often secure their non-physical uses of neighboring airspace without having to compensate neighbors by simply imposing height restrictions or other regulations on the space. The Supreme Court’s existing regulatory takings rules, which focus heavily on whether a challenged government action involves physical invasion of the claimant’s property or destroys all economically beneficial use of the property, fail to protect private landowners against these uncompensated takings of negative airspace easements. In recent years, regulations aimed at keeping private airspace open for specific government uses have threatened wind energy developments throughout the country and have even halted major construction projects near the Las Vegas Strip. This Article highlights several situations in which governments can impose height restrictions or other regulations as a way to effectively take negative airspace easements for their own benefit. The Article describes why current regulatory takings rules fail to adequately protect citizens against these situations and advocates a new rule capable of filling this gap in takings law. The new rule would clarify the Supreme Court’s takings jurisprudence as it relates to airspace and would promote more fair and efficient allocations of airspace rights between governments and private citizens.
[Comments are held for approval, so there may be some delay in posting]
A story from New Haven about Occupy Movement and its clash with the quasi-private ownership structure of the of the Town Green:
Its members have officially owned the Green and chosen their successors since the early 17th century. The group began with the original settlers of New Haven Colony. The state legislature affirmed their descendants’ legal right to control the Green in 1683, then again in 1723. (Read more about that history here.) . . . .Pattis’ complaint charges that the group’s very existence and its ownership of the Green violate the state constitution.
(HT: Will Baude)
Local Government, One Person/One Vote, and the Jewish Question on SSRN. Here's the abstract:
This article argues that the Supreme Court’s jurisprudence regarding the application of the 'one person/one vote' rule to local governments, while often considered hopelessly confused, actually contains an internal logic that reflects the ambiguous legacy of the Enlightenment in this country. There are three broad strands within the one person/one vote jurisprudence: the first, beginning with Avery v. Midland County, requires cities to apportion votes based on a 'one person/one vote' principle; the second, exemplified by Ball v. James, permits certain municipalities to apportion votes according to a 'one dollar/one vote' formula; and a third, captured in Holt Civic Club v. City of Tuscaloosa, gives the state plenary power to allocate votes with regard to some local government matters. Although these three strands seem impossible to reconcile, they are all consistent with an Enlightenment jurisprudential project to consolidate the power of the central state by suppressing the ability of entities exercising authority over particular territories, such as local governments, to challenge the state’s hegemony. Each line of cases accomplishes this end by creating an idealized standard for political participation that conceptualizes voters as abstract, homogenous individuals who are divorced from their parochial territorial commitments and thus capable of being acted upon by the state without regard to such commitments.
The article further reveals, however, that the evisceration of territory in these cases is actually an illusion. Under the guise that territory has been rendered immaterial, the courts surreptitiously permit local governments to exercise a substantial degree of territorial control. For example, in the case of City of Eastlake v. Forest City Enterprises, the Court upheld a tiny suburban municipality’s parochial exercise of the zoning power (excluding an affordable housing complex) by invoking the municipality’s subjection to the one person/one vote rule. Because one person/one vote purports to remove territorial affiliations from the political realm, it had the power in East lake to transform a small fragment of a large metropolitan region into 'the people,' a despatialized abstraction that was entitled, by virtue of its ostensible remove from territorial particularity, to exercise the zoning power in its own interest.
I explain the ambiguous use of territory in the jurisprudence by drawing upon the Enlightenment obsession with 'the Jewish question,' or the problem of incorporating territorially-bound subgroups like the Jewish ghetto into a modern nation-state predicated on the idea of a uniform citizenry. The tension between the surface homogenization and the underlying fragmentation of territory in the one person/one vote cases reflects an uneasy compromise between the Enlightenment attempt to incorporate groups such as the Jews into the abstract 'rights of man' and a pragmatic realization that territorial sovereignty is a precondition to securing human rights. This compromise, I argue, has troubling consequences: it enables those with sufficient political or financial power to retreat into insulated enclaves under the aegis of state neutrality, while foreclosing recompense for those excluded from such enclaves by deploying the fiction that they still retain their abstract rights. The article concludes accordingly that the egalitarian promise of the one person/one vote jurisprudence rings hollow.
Wednesday, March 14, 2012
Matt Yglesias, blogger extraordinaire, has recently published a short e-book that examines land use and urban policy issues. Although Yglesias is a self-described lefty on many issues, he makes a strong push for less land use regulation. Here's a clip of his bloggingheads discussion with Robert Wright:
Also, if any legal academic wants to do a short book review of this piece, get in touch with me. I promise to post the whole thing on the website.
Bundle-of-Sticks Notions in Legal and Economic Scholarship (Econ J. Watch) on SSRN. Here's the abstract:
The phrase “bundle of rights” does not serve as an accurate conceptual definition of property. Nor has that phrase provided a helpful metaphor as used in Ronald Coase’s article “The Problem of Social Cost” (1960) and subsequent legal and economic scholarship. Coase’s usage portrays property rights as a collection of individualized permissions to use an asset, when in sound conceptual usage “property” signifies a domain of authority to decide how to use the asset. The “bundle” metaphor may be understood to state that an owner has a right to deploy his property in any specific manner fairly implied by his general rights of ownership. Although this metaphorical usage is helpful, it remains parasitic on a sound conceptual definition of property. Property is best conceived of as a right securing a normative interest in determining exclusively the use of an asset external to the person of the owner.
Tuesday, March 13, 2012
Ezra Rosser (American) has posted The Ambition and Transformative Potential of Progressive Property (California Law Review / Berkeley) on SSRN. Here's the abstract:
The emerging progressive property school of thought champions and finds its meaning in the social nature of property. Rejecting the idea that exclusion lies at the core of property law, progressive property scholars call for a reconsideration of the relationships owners and non-owners have with property and with each other. Despite these ambitions, so far progressive property scholarship has largely confined itself to questions of exclusion and access. This paper argues that such an emphasis glosses over the race-related acquisition and distribution problems that plague American history and property law. The modest structural changes supported by progressive property scholars fail to account for this racial history and, by so doing, present a limited vision of the changes to property law that progressive scholars should support. Though sympathetic with the progressive property political and scholarly orientation and the policy arguments made regarding exclusion and access, I argue that the first priority of any transformative project of progressive property must be revisiting acquisition and distribution.
Monday, March 12, 2012
The Economist runs an eye-catching story on the art of valuing property in high end auction houses. The piece traces a controversy over a six-foot long gold chain that allegedly belonged to Henry VIII:
Lord Coleridge claimed that the auction-house expert, Elizabeth Mitchell, was negligent when she gave an auction valuation of a treasured family heirloom. The historic gold chain of office had been in his family for generations, and the Coleridges (distant relatives of the poet Samuel Taylor Coleridge) believed it dated from the mid-16th century. Lord Coleridge had expected that the estimate for his rare Tudor jewel would be £500,000 or more. Ms Mitchell, however, proposed that it was from the late 17th century, and gave it an estimate of £25,000 to £35,000. This, Lord Coleridge claimed, had cost him a good deal of money. He sued for £415,000.
Stephen Miller (Idaho) has posted Building Legal Neighborhoods (Harvard Envtl Law Rev) on SSRN. Here's the abstract:
Political and legal tools have emerged since the Seventies, and especially in the last two decades, that provide political and legal power to neighborhoods. However, these tools are often used in an ad hoc fashion and there has been scant analysis of how these tools might work together effectively. This article seeks to explore this trend, and further argues that cities consciously overlay these neighborhood legal tools. This approach is referred to in the article as a de facto “legal neighborhood.” This approach does not call for secession of neighborhoods from cities or for the wholesale privatization of public functions, as have others that argue for neighborhood empowerment. Rather, the article asserts that the collective operation of these neighborhood tools is greater than the sum of their parts, providing a method for civic engagement at a level city-wide politicians feel comfortable serving and in which residents feel comfortable participating. The article also provides approaches for linking the neighborhood to city and regional affairs, and a history and theory of the concept of the neighborhood as an argument for the important role and function of neighborhoods in American life.