August 3, 2012
Can the Feds Force Cities to Build Projects?
The Wall Street Journal examines the brewing fight between HUD and Galveston, Texas over 569 low-income housing units that the city refuses to build:
Four years ago, Hurricane Ike swept through this island town on the Gulf of Mexico, flooding homes, destroying property and wreaking havoc on the economy. Now, Galveston has become the center of a different type of tempest, as local officials battle the Obama administration over plans to replace 569 public-housing units ruined by the storm. [...]
[The Mayor] favors using federal rental-assistance vouchers to house low-income tenants displaced by the storm, a move U.S. officials have rejected, saying they want to increase the city's supply of low-income housing.
The one thing I wished the article had delved into is what Galveston's zoning policies look like. If Galveston has zoned out most of its multi-family housing, then the Mayor's position looks much less reasonable.
Strahilevitz on Absolute v. Relative Gains in Property Law
Lior Strahilevitz (Chicago) has posted Absolute Preferences and Relative Preferences in Property Law (Penn Law Review) on SSRN. Here's the abstract:
This article suggests that the population is roughly divided between individuals primarily oriented toward absolute gains and losses, and those oriented toward relative gains and losses. That is, some people consistently care more about the absolute size of the pie slice they are eating, and others care more about how their percentage of the pie stacks up against their peers’ portions. This article examines how property law deals with that heterogeneity in relative and absolute preferences. It focuses initially on inheritance law, particularly cases in which a decedent with living children has adopted her grandchild or someone else within the bloodstream, engendering results that might be acceptable to an heir with absolute preferences but unacceptable to an heir with relative preferences. The article then shows how similar controversies play out in takings law and the law of easements. In many of these cases vehement disagreements between majority opinions and dissents can be understood as clashes between jurists who are focused on absolute resources and those who are focused on relative resources. The article then hypothesizes that some relatively low-stakes disputes explode into contentious lawsuits precisely because a landowner oriented towards absolute gains and losses is incapable of understanding a conflict from the perspective of his neighbor, for whom relative preferences are decisive. The article concludes by referencing examples from takings law and the law of waste, in which divergent assumptions about the prevalence of relative and absolute preferences render property doctrines ambiguous, tenuous, or incoherent.
August 2, 2012
An Update on The Keystone Pipline
The Washington Post runs through the eminent domain issues surrounding the Keystone Pipeline:
The Keystone XL pipeline has reignited the emotional issue of eminent domain — the taking of private property for public use — all along its proposed route. The vast majority of landowners have signed agreements with TransCanada, the pipeline owner. But where necessary, the Calgary, Alberta-based company is busy going to state courts to exercise eminent domain and lining up rights to cross properties throughout the Great Plains
Goldberg and Sitkoff on Interference with Inheritance
John Goldberg (Harvard) and Robert Sitkoff (Harvard) have posted Torts and Estates: Remedying Wrongful Interference with Inheritance (Stanford Law Review) on SSRN. Here's the abstract:
This paper examines the nature, origin, and policy soundness of the tort of interference with inheritance. We conclude that the tort should be repudiated because it is conceptually and practically un-sound. Endorsed by the Restatement (Second) of Torts and recognized by the U.S. Supreme Court in a recent decision, the tort has been adopted by the courts of nearly half the states. But the tort is deeply problematic from the perspectives of both inheritance law and tort law. It undermines the core principle of freedom of disposition that undergirds all of American inheritance law. It invites circumvention of principled policies encoded in the specialized rules of procedure applicable in inheritance disputes. In many cases, it has displaced venerable and better fitting causes of action for equitable relief. It has a derivative structure that violates the settled principle that torts identify and vindicate rights personal to the plaintiff. We conclude that the emergence of the interference-with-inheritance tort is symptomatic of two related and unhealthy tendencies in modern legal thought: the forgetting of restitution and equitable remedies, and the treatment of tort as a shapeless perversion of equity to provide compensation for, or de-terrence of, harmful antisocial conduct.
August 1, 2012
Call for Papers: Local Government Law Works-in-Progress Conference
Marquette University Law School will host the first annual Local Government Law Works-in-Progress Conference on Friday, September 21, 2012 (possibly Saturday, September 22, 2012 as well, depending on interest). The conference will provide an opportunity for local government law scholars to present works-in-progress and receive feedback from their colleagues in the field.
You can register here. Please register by Monday, August 13, 2012. The deadling for submissions is September 4. Questions should be directed toward Matt Parlow firstname.lastname@example.org
Recent SSRN Downloads
1. [283 downloads] Coastal Land Loss and the Mitigation-Adaptation Dilemma: Between Scylla and Charybdis
Blake Hudson (LSU)
2. [130 downloads] Property Rights and the Supreme Court in the Gilded Age
James W. Ely (Vanderbilt)
5. [68 downloads] Globalization and its Special and Significant Impacts on Indigenous Communities
Robert Hershey (Arizona)
8. [55 downloads] Landscape Fairness: Removing Discrimination from the Built Environment
Stephen Clowney (Kentucky)
July 31, 2012
Map of the Day: The Geography of Team USA
The Atlantic has a nice little piece about the hometowns and current residences of the members of the United States Olympic Team. Here's their map of where America’s Olympic competitors currently live:
Frischmann on Infrastructure
Brett Frischmann (Cardozo) has posted Defining Infrastructure and Commons Management (Book Chapter, Oxford University Press) on SSRN. Here's the abstract:
Infrastructure and commons are not typically thought to be related to one another. Both concepts have rich histories and varied meaning, and both involve complex phenomena that are the subject of study in various disciplines, including engineering, economics, political science, and law. There is no separate field of infrastructure study or commons study, and there are no settled universal theories or even definitions of infrastructure or commons. This chapter develops the foundation for bringing the concepts together. After a brief introduction to the modern conception of infrastructure and its traditional roots in large-scale, human-made physical resource systems, the chapter discusses a few observations about traditional infrastructure resources, including the important observation that traditional infrastructures are generally “managed as commons.” This sets the stage for a more detailed discussion of “commons management” as a resource management strategy and for the economic analysis that takes place in subsequent chapters.
July 30, 2012
Construction Sites in Austria and the United States
My first post about Vienna is rather pedestrian, but it constantly struck me how construction sites in the city were barely separated from the public, particularly compared to sites in the United States. So here's my first set of comparative photos.
This is a construction site on a heavily travelled path right outside the Schottenring U-Bahn and tram station near the center of Vienna. I walked past this site on my way to class nearly every day. Please note how you have to walk or bike in a five or so foot wide path between the curb and a piece of heavy equipment that was being operated at the time (and kept swinging into that path). I could have taken dozens of photos showing a complete lack of separation between pretty heavy construction work (open pits, jackhammers making concrete fly, hot asphalt being applied to the sidewalk) and the public.
(Continued after the jump)In contrast, here's a photo I took this morning of some construction work on campus at Wake Forest:
Hardly any work going on, but there is a six foot fence around entire site, signs warning people to stay away, caution tape, orange cones, etc. Pretty standard.
Conventional wisdom holds that European regulation is more onerous than American regulation, yet construction site safety would seem to be a glaring exception. Any thoughts on explaining the difference?
July in Vienna
I just returned from spending July in Vienna, teaching a course on the Financial Crisis in the United States and Europe to a class of 10 -- 4 from Wake Forest Law, 1 from SMU Law, and 5 from the University of Vienna law program. Really incredible experience.
Teaching American and European students about the financial crisis while the crisis in the EuroZone continues to unfold was a fascinating experience.
From a property scholar's perspective, Vienna is an amazingly inspirational city. 1000+ years of history. The former capital of a multi-national empire, attacked and partially destroyed numerous times over the centuries. The Baroque architecture makes the city look like a wedding cake. Incredible public spaces -- parks, wide boulevards, performance spaces, museums and palaces. A city with a strong and well-functioning public transportation system, plus dedicated bikepaths and walking paths literally everywhere. Churchs, and cemetries, and catacombs galore.
I can post more about the class if anyone is interested. I will definitely post more about the property topics that Vienna constantly inspired me to think about.
Chick-Fil-A v. Boston
As many of you probably heard, public officials in Boston recently declared that Chick-Fil-A (a fast food chain that specializes in fried chicken sandwiches) would not be welcome within the city limits because of the anti-gay sentiments expressed by the company's CEO. Officials in some places have gone so far as to threaten to deny Chick-Fil-A the permits it needs to open a store.
Over at Land Use Prof, Matt Festa asks whether a city could legitimately use zoning laws to block the sitting of a commercial enterprise based on the political views expressed by company employees. The answer, in short, is "no." Matt summarizes, "Many of us disagree with the Chick-fil-A CEO's opinions, but everyone seems to agree that it would be unconsitituional to prohibit the company's land use on that basis."
Eugene Volokh concurs and gets into the First Amendment weeds: "It doesn’t matter if the applicant expresses speech that doesn’t share the government officials’ values, or even the values of the majority of local citizens. It doesn’t matter if the applicant’s speech is seen as “disrespect[ful]” of certain groups. The First Amendment generally protects people’s rights to express such views without worrying that the government will deny them business permits as a result. That’s basic First Amendment law . . . ."
While all that's true, I think it's important to acknowledge a point recently made by Matt Yglesias, "while the Constitution would almost certainly prevent Chicago from de jure banning Chick-fil-a on these grounds, it's almost trivially easy for jurisdictions to abuse the extremely wide discretion they're granted to de facto do the same thing." For example, Yglesias argues that Boston could simply pass a law that all fast-food restaurants must be open seven days a week. Since Chick-fil-a doesn't open on Sunday as part of its owners' socially conservative worldview, that would effectively ban the chain.
Webber on the First-Time Homebuyer Tax Credit
Sarah Webber (Dayton) has posted Don't Burst the Bubble: An Analysis of the First-Time Homebuyer Credit and its Use as an Economic Policy Tool (John Marshall Law Review) on SSRN. Here's the abstract:
In 2008, faced with a looming real estate crisis, Congress hastily acted to stabilize the economy by offering a first-time homebuyer credit. This tax credit was trumpeted as a solution to the excess inventory of homes for sale and to stop the free-fall in home values. The credit, however, failed to deliver on its promises. By analyzing the first-time homebuyer credit, its creation, its implementation and its economic impact, this Article concludes that, when compared to alternative policy solutions, Congress erred in using the tax code to implement a first-time homebuyer credit.