Friday, March 30, 2012
In 2006, Prawfsblawg put together a "canons project," which attempted to compile a list of the most classic works in each legal discipline (Here's the link to the post on cannonical property works). PropertyProfs own Ben Barros suggested the following list:
The Classics of the Moral and Political Theory of Property:
Locke, On Property
Rousseau, Discourse on Inequality
Bentham, The Theory of Legislation
Marx, Communist Manifesto
Conceptualizing Property Rights:
Wesley Hohfeld's Fundamental Legal Conceptions
Thomas C. Grey, “The Disintegration of Property”
Guido Calabresi & A Douglas Melamed, “Property Rules, Liability Rules, and Inalienability: One View of the Cathedral"
Great Contemporary Work on Property Theory:
Margaret Jane Radin, "Property and Personhood" and Contested Commodities
Joseph William Singer, “The Reliance Interest in Property”
Hernando de Soto, The Mystery of Capital
Charles A. Reich, “The New Property”
Milton Friedman, Capitalism and Freedom
William Fischel, The HomeVoter Hypothesis
Ronald Coase, "The Problem of Social Cost"
Garrett Hardin, "The Tragedy of the Commons"
Harold Demsetz, "Toward a Theory of Property Rights"
Lots of articles by Carol Rose and Richard Epstein -- it is hard to pick just one or two
Takings and Constitutional Property:
James Madison, "Property"
Joseph Sax, "Takings and the Police Power"
Frank Michelman, "Property, Utility and Fairness"
Bruce Ackerman, Private Property and the Constitution
Richard Epstein, Takings
William Michael Treanor, "The Original Understanding of the Takings Clause and Political Process"
In the comments thread at Prawfsblawg, others made equally adept suggestions. My question for today is this: With a decade's worth of hindsight, which articles from the early 2000's do we need to add to the canon?
Sarah Schindler (Maine) has posted Of Backyard Chickens and Front Yard Gardens: The Conflict between Local Governments and Locavores (Tulane) on SSRN. Here's the abstract:
Locavores aim to source their food locally. Many locavores are also concerned more broadly with living sustainably and decreasing reliance on industrial agriculture. As more people have joined the locavore movement, including many who reside in urban and suburban areas, conflict has emerged between the locavores’ desires to use their private property to produce food — for personal use and for sale — and municipal zoning ordinances that seek to separate agriculture from residential uses.
In this article, I consider the evolution of this conflict and its implications for our systems of land use, local government, and environmental law. Specifically, I investigate the police power rationales for the existence of ordinances that disallow urban homesteading in urban and suburban communities. I then demonstrate that public health, civic virtue, and free market principles can be used to justify the passage of ordinances that would expressly permit these behaviors. Central to this analysis is a discussion of the problems caused by industrial agriculture and the lack of access to locally produced foods — food insecurity, food deserts, obesity tied to processed foods, monoculture-induced environmental catastrophes, harm to animals, and greenhouse gas emissions — all of which could be alleviated, at least in part, through urban agriculture. In recognition of these changing conceptions of harm, some local governments have begun to pass ordinances expressly allowing gardens, chickens, and the sale of produce in residential areas. I conclude by considering what this movement toward loosening restrictions on the use of private property says more broadly about the decline of Euclidean zoning controls and the future of land use law.
Thursday, March 29, 2012
The N.Y. Times chronicles the successful remodeling of an ugly, mid-century housing tower on the outskirts of Paris:
The tower was a natural candidate for the French wrecking ball after decades of neglect and decay, but tenants didn’t want to lose their homes. So an unusual question arose: might the building become a candidate for a different approach? A competition was organized by Paris Habitat, the Paris Office for Public Housing, in 2005 to renovate the building. The challenge: to repair the tower’s crumbling infrastructure, upgrade its common spaces and its exterior, and — this was the most radical part — add more light and square footage to dark, cramped apartments, without changing the footprint of the building, which couldn’t be extended. Oh, yes, and to spend less money for all this than the cost of tearing the building down and then rebuilding.
Earlier in the week, the blog highlighted a great new article from Lee Fennell on takings jurisprudence. The paper uses a series of diagrams to tease out and then bring order to some of the complexities of takings doctrine. I just discovered that Lee has made the diagrams from her article publicly available on the U. Chicago web page. Anyone interested can check out the Powerpoint slides at http://www.law.uchicago.edu/files/PT%20Slides%20+%20Table%20from%20Paper.ppt (alternatively you can go to http://www.law.uchicago.edu/node/520/publications and scroll down to the entry for Picturing Takings). Wonderful stuff for the visual learners among us.
Jim Kelly (Notre Dame) has posted Inclusionary Housing on a Global Basis (Journal of Affordable Housing and Community Development Law) on SSRN. Here's the abstract:
This is a book review of Inclusionary Housing in International Perspective: Affordable Housing, Social Inclusion, and Land Value Recapture (2010, Nico Calavita and Alan Mallach, eds.). The book offers a comparative look at land-use based approaches to the creation of affordable housing in a broad range of developed countries. A little less than a sixth of the book is dedicated to the U.S., with special attention given to the development on inclusionary programs in California and New Jersey. The editors then devote a chapter each to Canada, England, Ireland, France, Spain and Italy. The penultimate chapter looks at inclusionary practices in a variety of other countries including India, Israel, Colombia and South Africa. The review welcomes this addition to the study of affordable housing programs across the developed world.
Wednesday, March 28, 2012
Daniel Sharfstein, property professor at Vanderbilt, has won the 2012 Lukas Book Prize for The Invisible Line: Three American Families and the Secret Journey from Black to White. Sharfstein's book looks at the complexity and porous nature of the color line in American history. Congratulations, Dan!
In addition to the stellar book, property profs may be interested in Al Brophy's thoughtful review of the book.
Christian Turner (Georgia) has posted State Action Problems on SSRN. Here's the abstract:
The state action doctrine is a mess. Explanations for why federal courts sometimes treat the private actions of private parties as public actions subject to the Constitution, like the Supreme Court did in Shelley v. Kraemer, are either vastly overinclusive or fail to explain our law and values. A better approach is to understand the state action doctrine in institutional terms. I introduce a two-step, institutionally focused state action theory that is a natural consequence of a broader public/private theory of legal systems. In the first step, a court identifies a “state action problem,” meaning a privately made law that is poorly governed by the ordinary rules governing the making of contracts. If a court finds a state action problem, it will proceed to the second step and decide whether courts have superior capacity to remedy the problem than do other governmental institutions. This theory captures important intuitions about the public regulation of private lawmaking that other approaches either ignore or fail to ground theoretically. In addition, it helps to justify why racial discrimination is often a decisive fact in finding state action, explains why the doctrine is rarely invoked, and provides a firm, theoretical foundation for a doctrine otherwise adrift in search of guiding principles.
Tuesday, March 27, 2012
National Geographic has published a really cool map that shows the 25 most common last names in each state:
Last week I received an email promoting Battle for Brooklyn, a new film about the eminent domain battle over Atlantic Yards, "the densest real estate development in U.S. history. The film may be of interest for property folks. At the very least, it includes the most dramatic music ever heard in a property movie.
Bruce Ziff (Alberta) has posted Yet Another Function for the Numerus Clausus Principle of Property Rights, and a Useful One at That on SSRN. Here's the abstract:
In recent years increased attention has been paid to the numerus clausus principle – the recognition of a limited, though not fully closed, set of property entitlements. An impressive number of rationales (eight by my tally) for that principle have already been offered. In this paper I claim that these arguments are incomplete. I argue that the presence of impediments to the termination of property rights suggests the need for caution in their initial recognition, because doctrinal mistakes cannot easily be corrected. On that view, numerus clausus serves as an instantiation of what is sometimes called the precautionary principle: an ounce of prevention is worth a pound of cure.
Monday, March 26, 2012
The N.Y. Times runs a long essay by Michael Kimmelman that pushes back against NYU's plan to expand in the Washington Square neighborhood:
The storm over NYU 2031, as this latest expansion proposal is called, has escalated into one of the city’s most acrimonious land-use battles. No wonder. The plan is so clearly oversize that it’s hard not to see it as a stalking horse for what school officials figure they can get permission from the city to build. . . .
And what does the neighborhood need? Among other things, open space, green space. The debate over the development of the two superblocks has turned a fresh spotlight on the underrated urban virtues of Washington Square Village and University Village — examples of how tower-in-the-park architecture, descended from Le Corbusier and widely discredited, can benefit an old neighborhood of brownstones . . .
As always, the paper of record has come up with a wonderful set of info-graphics that lay out what NYU is trying to do. The essay, however, isn't particulalry persuasive. Kimmelman argues, more or less, that NYU's plan is faulty because it threatens to destroy a park (where he happened to play as a child). From the pictures, however, the park in question looks pretty brutal and the author even admits that "most people don’t even realize it exists." This hardly seems like enough justification to stop NYU's vision.
The Web Urbanist has compiled fourteen "smart and sensitive" designs for providing the homeless with housing:
City officials spend a lot of time and energy worrying about how to keep homeless people off public furniture and out of certain common areas, when they should be considering how to better manage the issue of homelessness in general. One area of focus is homeless housing, whether simply meeting the immediate needs of people who live on the streets or providing a more long-term, forward-thinking transitional living spaces. These 14 designs for homeless housing provoke thought as to how we can meet the needs of disadvantaged people living in our own communities, and ensure that the situation is only temporary.
Lee Anne Fennell (Chicago) has posted Picturing Takings (Notre Dame) on SSRN. Here's the abstract:
Takings doctrine, we are constantly reminded, is unclear to the point of incoherence. The task of finding our way through it has become more difficult, and yet more interesting, with the Supreme Court’s recent, inconclusive foray into the arena of judicial takings in Stop the Beach Renourishment. Following guideposts in Kelo, Lingle, and earlier cases, this essay uses a series of simple diagrams to examine how elements of takings jurisprudence fit together with each other and with other limits on governmental action. Visualizing takings in this manner yields surprising lessons for judicial takings and for takings law more generally.
Sunday, March 25, 2012
The highest paid hedge fund manager -- one person -- last year made the same as:
- 17,000 pediatricians; or
- 85,000 school teachers; or
- 61,900,000 school meals for a year.
What is interesting to me is that our conception of property, by which I mean the appropriate subjects for discourse for those who dedicate their professional lives to teaching the law of property, no longer includes the facts above.
Today, it seems to me, discussion of the facts above is considered "political" rather than "legal" -- legal in this sense meaning a more precise, technocratic focus on legal doctrine. In fact, I imagine a few readers of the facts above metaphorically rolling their eyes, and thinking somewhat disdainfully "Here it comes . . ." It's not that you necessarily think the facts above are just or even optimal; it's just that this discussion doesn't belong here.
My question is: why doesn't it belong here?
Historically, that hasn't always been the case. Distribution of wealth and resources was considered very much a property issue in the convulsions that swept Europe between the 17th and 20th centuries, for example. It's hard to imagine A Tale of Two Cities, for example, as a story devoid of property law issues.
Why has our focus narrowed? What has changed?
Mark A. Edwards