Friday, July 6, 2012
Joseph Singer highlights a case out of the federal circuit:
The Federal Circuit ruled in Kam-Almaz v. U.S. 2012 U.S. App. LEXIS 12581 (Fed. Cir. 2012), that there was no unconstitutional taking of property when an individual’s computer was seized and examined at an airport immigration and customs station and returned with the hard drive damaged, resulting in the loss of irretrievable business records.The court held that property seized “pursuant to the police power” is not taken “for public use” within the meaning of the takings clause. Government can seize property for law enforcement purposes without implicating the takings clause, even if the property is thereby destroyed.
Priya Gupta (Southwestern) has posted The Peculiar Circumstances of Eminent Domain in India (Osgoode Hall Law Review) on SSRN. Here's the abstract:
The question of a constitutional property regime governing eminent domain gave rise to nuanced and principled debates in the Constituent Assembly (the body which framed the Indian Constitution between 1947 and 1950) and in subsequent Parliament meetings regarding Constitutional amendments. However, these extensive deliberations resulted in a clause which only addressed the most superficial aspects of property rights in India. Similarly, the statutory frameworks which govern government acquisition of land, in particular the Land Acquisition Act of 1894, are important to understand, but they provide only another part of the puzzle. This paper starts earlier in history – at the inception of eminent domain in India – in order provide the colonial context on which my argument rests. I argue that this concept of compulsory land acquisition by the government, as inherited from the British and encapsulated in the Constitution, the statutory law, and in practice, is inappropriate for the reality of how property rights are held and exercised in India and incapable of being reformed toward the socially inclusive purposes for which property rights were included in the Constitution. Because of this discord, efforts to re-formulate the law which hold current forms of eminent domain as their focal point continue to fall short of real transformation of the property rights regimes in India.
Thursday, July 5, 2012
Citiwire explains the housing market in Singapore:
If you hate government, want it out of your hair and held at bay, Singapore should be pure hell. One government agency manages 80 percent of the housing stock — all called public housing. It checks your age and whether you’re married to decide whether and when you’re eligible for an apartment. It decides what you’ll pay to occupy your flat, which local services will (or won’t) be provided. It even checks your ethnicity — every housing area has a set balance among the leading local ancestries — Chinese, Malay and Indian.
Gerald Korngold (New York Law School) has posted Governmental Conservation Easements: A Means to Advance Efficiency, Freedom from Coercion, Flexibility, and Democracy on SSRN. Here's the abstract:
Over the past twenty-five years, courts and commentators have recognized and upheld conservation easements as an important vehicle to preserve natural and ecologically sensitive land, focusing primarily on easements held by nonprofit organizations (NPOs). During the same period, courts and commentators have supported property rights of owners against governmental land use regulation. This paper maintains that these two independent developments militate for the increased use of consensual conservation easements by governmental entities to achieve public land preservation goals. Governmental conservation easements can realize the benefits of efficiency, consent and free choice, and conservation, while avoiding the coercion implicit in public land use regulation. Moreover, governmental conservation easements have advantages over private easements in some situations: governmental easements may be more easily modified or even terminated to address future changes in conservation values and community needs; as with public land use regulation, governmental easements must be transparent and are subject to democratic, participatory processes that NPOs do not have to follow; and properly functioning governmental ownership may be best able to discern and represent the public interest when making acquisition, modification, and termination decisions about conservation easements. I suggest that both NPO-held conservation easement activities and legitimate public land use regulation are valuable and should continue, but argue that increased use of governmental conservation easements can bring significant benefits as well.
Tuesday, July 3, 2012
Today, the NPR program "Here & Now" had a feature that may be of interest to some Propertyprofs. The show highlighted the fortunes of Sandy Springs, GA. Sandy Springs is unique because it has privatized almost all of the typical functions of government. As the New York Times recently reported, there's no public garbage collection. If Sandy Spring residents want a business license, they must contact a company in England. To build a new deck on their homes, they must contact a company in Massachusetts. The information on Sandy Springs begins around the 8:30 mark of the following sound clip.
So, I've posted my most recent article, Landscape Fairness: Removing Discrimination from the Built Environment (Utah Law Review) on SSRN. Here's the abstract:
At its core, this Article argues that the everyday landscape is one of the most overlooked instruments of modern race-making. Drawing on evidence from geography and sociology, the paper begins by demonstrating that the built environment inscribes selective and misleading versions of the past in solid, material forms. These narratives — told through street renamings, parks, monuments, and buildings — ultimately marginalize African-American communities and transmit ideas about racial power across generations.
After demonstrating that the landscape remains the agar upon which racial hierarchies replicate themselves, the Article then pivots and examines current efforts to rid the built environment of discriminatory spaces. I put forth that contemporary attacks on the landscape are doomed to fail. The approaches suggested by academics in law and geography either turn a blind eye to the political economy of local decision-making or fail to consider entrenched legal precedent.
The final section of the manuscript lays out a policy proposal that could spark a new focus on issues of “landscape fairness.” I argue in favor of a set of basic procedural requirements that would force jurisdictions to reconsider the discriminatory places within their borders. Procedural mandates would force government to internalize values it might otherwise ignore, allow citizen-critics to challenge dominant historical narratives, and push communities to view the past (and future) in much more diverse terms.
Monday, July 2, 2012
Ezra Rosser (American) and Sarah Krakoff (Colorado) have edited a book entitled Tribes, Land, and the Environment that should be of interest to PropertyProfs. The book is being distributed by Ashgate as part of their “Law, Property, and Society” series. The publisher’s page on the book can be found here. The table of contents is here. And the introductory chapter can be found here. Also note that the co-editors have agreed to give any proceeds they receive from the book to the Native American Rights Fund. This looks like a great resources for anyone interested in Indian law, property, or the environment.
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