July 27, 2012
Bloom & Serkin on Suing Courts for Judicial Takings
Frederic Bloom (Colorado) & Christopher Serkin (Brooklyn) have posted Suing Courts (Chicago Law Review) on SSRN. Here's the abstract:
This Article argues for a new and unexpected mechanism of judicial accountability: suing courts. Current models of court accountability focus almost entirely on correcting legal errors. A suit against the court would concentrate on something different — on providing transition relief, by way of legal remedy, to those bearing the heaviest burdens of desirable legal change. These suits may at first appear impossible. But suing courts is conceptually rational and mechanically reasonable, a tool that eases legal transitions while navigating the many hurdles modern doctrine puts in the way. This Article sets out the first complete account of how, where, and why suing courts might work — both in the context of judicial takings and perhaps outside it, too. It shows how suing courts can simultaneously discipline judges and liberate them. And it outlines a surprising promise for all involved — a narrow hope for impacted parties and a new kind of accountability for law-changing courts.
July 26, 2012
Healing Urban Renewal's Wrongs
The New York Times provides an update on New Haven's attempt to build over a highway that severed the historically black Hill neighborhood from downtown:
In the 1950s, this city, like others, believed that the best way to get people back from the suburbs was to build more highways. A result was the Oak Street Connector, a limited-access spur off Interstate 95 leading to the central business district. [...] The highway, part of Route 34, severed the Hill neighborhood from the heart of downtown and hastened the Hill’s decline, because nobody wanted to walk across a wide, busy highway to get to the neighborhood, according to city leaders, business owners and residents. [...]
But city officials say help is on the way from Downtown Crossing, a $135 million redevelopment plan that has been years in the making. [...] Though details are still being worked out, the plan calls for building streets, sidewalks and buildings on platforms above the existing highway. The city’s grid in the area would be restored, creating a more pedestrian-friendly environment, and the Hill would be reattached. The highway will have fewer exits into the city and will lead directly into parking garages.
Halperin on Conservation Easements
Daniel Halperin (Harvard) has posted A Better Way to Encourage Gifts of Conservation Easements on SSRN. Here's the abstract:
The author’s proposal would repeal the deduction for the appraised value of a conservation easement that is allowed by current law. Congress should consider replacing the subsidy with a program of direct grants or limited-budget tax credits administered by an expert agency. If the deduction is continued, eligible donees should be only large institutions with a large portfolio of easements and resources and motives to enforce the easement, there should be an excise tax on nonenforcement of the easement, and there should be another government agency other than the IRS involved in enforcement. The special higher allowances for the deduction of appreciated property allowed by current law should be repealed.
The proposal is offered as a part of the Shelf Project, a collaboration of tax professionals to develop proposals to raise revenue without a VAT or a rate increase. Shelf Project proposals raise revenue while making the tax system more efficient and reducing deadweight loss. Shelf projects follow the format of a congressional taxwriting committee report in explaining current law, what is wrong with it, and how to fix it.
July 25, 2012
Has Suburban Sprawl Shaped American Christianity?
Fred Clark argues in the affirmative:
I believe . . . that American Christianity has been shaped by the suburbs far more than the suburbs have been shaped by American Christianity. [...] The suburbanization of American Christianity has had a huge impact on institutional and denominational structures. Automobile-shaped development has produced an automobile-shaped ecclesiology. The car has abolished the possibility of the parish. And that, in turn, has helped to redefine “neighbor” as a matter of preference more than of proximity — as optional rather than obligatory. That redefinition is rather significant, since “Who is my neighbor?” is kind of an important question for Christians.
The suburbanization of American Christianity has altered our theology in other fundamental ways. Consider, for example, the church-growth movement and its focus on the archetypally suburban idea of the “homogenous unit principle” [Ed: The Homogenous Unit Principle states that churches with culturally and ethnically homogenous membership grow the fastest]. Could there be a more radical rejection of Pentecost than that?
Andrew Sullivan raises a parallel: "It's a faint echo of how Islamist fundamentalism required the location-free Internet to take off. A geographically disassociated, global religion necessarily becomes an ideology, because, unlike the parish, it does not have to grapple with local reality, with differing views, with different temperaments."
Fitzpatrick on the Benefits of Complex Property Rules in Frontier Societies
Daniel Fitzpatrick (Australia National University) has posted First Possession at the Frontier: Property and the Problem of Social Order on SSRN. Here's the abstract:
Information cost theories of property suggest a baseline preference for bright-line rules of first possession as interpretive simplicity reduces the costs of information transmission to a broad property audience. A baseline preference for simplicity allows for rule complexity where increases in the cost of information are outweighed by reductions in deadweight losses. This article suggests that rule complexity may correlate with reductions in deadweight losses through maintenance of social order, at least in 'frontier’ contexts where there are risks of violent acts of property encroachment. At the frontier, where the costs of state enforcement outweigh the benefits, the lowest objective sum of transaction costs may be provided by complex rules of first possession that reduce the enforcement costs of property. Complexity may take the form of rules of abandonment, restrictions on claimant eligibility, or distinctions between actual and legal possession. The argument is illustrated by reference to East Timor, which provides an unusual opportunity to analyze the emergence of institutional complexity relating to property, both in circumstances of custom without law and in the context of land law in a new nation-state.
July 24, 2012
Property Profs Present at Harvard/Stanford/Yale Junior Faculty Forum
This news is a little out-of-date, but certainly worth posting. At the beginning of June, two property profs were selected to present papers at the prestigious Junior Faculty Forum hosted at Harvard:
Kenneth Stahl (Chapman), Local Government, One Person/One Vote, And The Jewish Question
Ashira Ostrow (Hofstra), Land Law Federalism
The full list of presenters is here. A hearty congratulations to Ken and Ashira.
Davis on Adverse Possession as a Redistributive Tool
Tessa Davis (Tulane - VAP) has posted Keeping the Welcome Mat Rolled-Up: Social Justice Theorists’ Failure to Embrace Adverse Possession as a Redistributive Tool (Journal of Transnational Law & Policy) on SSRN. Here's the abstract:
J.A. Pye (Oxford) Ltd.and another v. Graham and another (Pye), a recent U.K. case, raised the question of whether adverse possession may violate a human right to own property. The case implicated the then recent bringing adverse possession into the human rights realm. Yet, a review of the case as it moved through the U.K. courts and the European Court of Human Rights reveals, however, that courts have not embraced a consideration of adverse possession as playing a role in substantive human rights or social justice concerns. This is due, in part, to the dearth of human rights and social justice scholarship on the doctrine. Though human rights and social justice theorists have failed to fully develop the doctrine, their theories lay the groundwork for utilizing adverse possession as a tool to fashion new property systems. Utilizing adverse possession as a social justice tool can help foster systems with widespread property distribution while actively recognizing and supporting human rights of both owners and those seeking ownership.
July 23, 2012
Micro-Apartments in San Francisco
The extremely high cost of housing in San Francisco is pushing regulators to reconsider some of the area's draconian land use policies. The city government has, for example, proposed reducing the minimum size of rental units in response to demographic shifts toward one-person households. The new minimum would be 220 square feet versus the current minimum of 290 square feet.
Oddly, some affordable housing advocates are pushing back against this change:
"It's disingenuous to say it creates affordable housing, it's just that you get significantly less space," said Sara Shortt, executive director of the Housing Rights Committee of San Francisco. "This doesn't create affordable housing, it simply creates another lifestyle option." She also worries that the "shoe-box" units could create a slippery slope of allowing other exemptions on considerations like natural light and ceiling height.
The Original Hoppers
The New York Times has put together a photo essay of the houses that Edward Hopper painted and photgraphs of the buildings as they look today.
Miller on Percent-for-Art Programs
Stephen Miller (Idaho) has posted Percent-for-Art Programs at Public Art's Frontier on SSRN. Here's the abstract:
The federal government, many state governments, and an estimated 350 local governments have implemented percent-for-art fee programs that require a percentage of a project's construction cost to go towards public art. Historically, this resulted in a permanent, on-site art installation. An increasing number of cities, however, are experimenting with percent-for-art fees that fund off-site or temporary public art installations and performances that reflect changes in public art itself. This Article explores the legal implications of, and provides models for, implementing this new type of percent-for-art fee.