September 21, 2012
Universities and the Law of Eminent Domain
The Chronicle of Higher Education reports on the use of eminent domain by educational institutions like Ball State:
At a time when public university leaders regularly point to the advantages that private institutions have enjoyed over them in recent years – such as freedom from most state regulations, freedom to raise tuition, and often significant financial resources -- it’s easy to forget that the public universities still have one significant advantage. They are parts of the state, and that comes with a lot of powers.
Earlier this month, Ball State University’s board of trustees authorized the use of eminent domain – the power of the state to seize private property without the owner’s consent so long as the owner is compensated – to take a piece of property on which it plans to construct a hotel, conference center, restaurants, and dormitory for hospitality students.
(HT: Volokh Conspiracy)
Miller on The Visual and the Law of Cities
Stephen Miller (Idaho) has posted The Visual and the Law of Cities (Pace Law Review) on SSRN. Here's the abstract:
This experimental article will attempt to explore, through brief sketches, or “tableaus,” four ways in which the visual interplays with the law of cities, and how a deeper understanding of this intersection can assist in the development of these laws and their underlying policies. For the purposes of this article, the “law of cities” is defined as those allied fields of law that deal with building, construction, architecture, planning, developing, preserving, and otherwise creating the places where we live. First, the article explores the law’s longstanding adverse relationship to the visual, as well as contemporary efforts to change that relationship. The article then turns to the four tableaus that explore the law of cities and the visual. In the first tableau, the article discusses the question of the cultural value of a hand-drawn map by reviewing the U.S. Supreme Court’s nineteenth century jurisprudence on Spanish era diseños, or property maps, which were part of Spanish and Mexican California-era land grants. In the second tableau, the article discusses the question of whether aesthetics is a proper domain of the law of cities by comparing the U.S. Supreme Court’s decision in Berman v. Parker, its progeny, and Daniel Burnham’s 1909 Plan of Chicago, which was the first, and perhaps most important, comprehensive plan drafted for an American city in the “City Beautiful” tradition. The third tableau explores the production of space and the philosophy of Henri Lefebvre in the context of the visual as law, most notably, in the rise of visual zoning codes. The fourth tableau extends the law and literature movement to the visual arts through the philosophy of Edward Casey as applied to the painter Edward Hopper. By presenting these four approaches in which the visual complicates and assists the law of cities, and sometimes even acts as the law of cities, the article intends to spur a dialogue on the complicated relationship of the visual to the law of cities.
September 20, 2012
Is Greenland the New Maine?
The NY Times looks at how climate change is affecting the value of property in the artic circle.
At stake are the Arctic’s abundant supplies of oil, gas and minerals that are, thanks to climate change, becoming newly accessible along with increasingly navigable polar shipping shortcuts. This year, China has become a far more aggressive player in this frigid field, experts say, provoking alarm among Western powers.
(image: Tasiilaq, Greenland, where climate change is bringing new prosperity and new challenges)
Borden & Reiss on Real Estate Mortgage Investment Conduits
Bradley Borden (Brooklyn) and David Reiss (Brooklyn) have posted Wall Street Rules Applied to REMIC Classification on SSRN. Here's the abstract:
Investors in mortgage-backed securities, built on the shoulders of the tax-advantaged Real Estate Mortgage Investment Conduit (“REMIC”), may be facing extraordinary tax losses because of how bankers and lawyers structured these securities. This calamity is compounded by the fact that those professional advisors should have known that the REMICs they created were flawed from the start. If these losses are realized, those professionals will face suits for damages so large that they could put them out of business.
September 19, 2012
When Hipsters Take Property
(HT: Matt Festa)
Martinez on Conceptualizing the Structure of Local Government
John Martinez (Utah) has posted From Pyramids to Stories: Cognitive Reconstruction of Local Government Authority on SSRN. Here's the abstract:
This article describes a cognitive science approach to law, uses it to critically evaluate conventional "pyramid" legal analysis of local government authority, and suggests stories as alternative models for defining such authority. The article suggests that stories better reveal what is at stake in regard to local government authority and thus helps us to arrive at better solutions. The article illustrates the storytelling analytical approach in three situations: a local government's condemnation of private property for resale to a private developer, the delegation of land use control authority to neighborhood groups, and local government attempts to zone out nontraditional families.
September 18, 2012
Mark your calendar for upcoming Professors' Corner calls
As you know by now, Professors’ Corner is a monthly free teleconference sponsored by the American Bar Association Real Property, Trust and Estate Law Section's Legal Education and Uniform Laws Group. Each month’s call features a panel of three law professors who discuss property cases of interest to practitioners and scholars. I will post a more particular description of each month's program and call-in information closer to each call, but wanted to give you the heads up to mark your calendars for the next few calls.
Each call will be at 12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a.m. Pacific).
Please mark your calendars to join us! If you are interested in participating in a future Professors' Corner call, or if you have a suggestion for a topic, please let me know.
Introducing Guest Blogger Priya Gupta
I'm thrilled to announce that Priya Gupta, an Associate Professor at Southwestern, has agreed to guest blog here over the next few weeks. Before signing on at Southwestern, Priya taught at theJindal Global Law School (JGLS) in India, practiced law as a structured finance attorney in New York, and worked as a consultant in Boston. Her research intersts center around property rights and economic development. Welcome, Priya.Her recent work includes:
"The Peculiar Circumstances of Eminent Domain in India," 49 OSGOODE HALL LAW JOURNAL (forthcoming 2012)
"'The Toxic Trade': The Legal Landscape of Asbestos Regulation in India, 90/91 WOMEN & ENVIRONMENTS 25 (with D. Jain) (Spring/Summer 2012)
"Promotion Clinical Legal Education in India: A Case Study of the Citizen Participation Clinic," Joint Report by the Cornell International Human Rights Clinic and the Jindal Good Rural Governance and Citizen Participation Clinic (with E. Brundige, S. Kalantry, and A. Pandley) (July 2012)
"Ending Finders, Keepers: The Use of Title Insurance to Alleviate Uncertainty in Land Holdings in India," 17 U.C. DAVIS JOURNAL OF INTERNATIONAL LAW & POLICY 63 (2010)
"The Ambivalent Life of DEAD AID," 1 INDIAN JOURNAL OF LAW & ECONOMICS 169 (2010)
Will a Small Property Dispute Cause WWIII, Ctd
Jim Fallows notes the increasingly heated protests in China over a territorial dispute with Japan (the controversy concerns the uninhabited Diaoyu/Senkakus Islands). The banner in this picture, taken outside a Chinese Audi dealership, reads, "Even if China becomes nothing but tombstones, we must exterminate the Japanese; even if we have to destroy our own country, we must take back the Diaoyu Islands." Yikes.
Fallows also states that these seemingly state-sponsored protests against the Japanese reveal "the difference between the relentlessly surging-ahead Chinese economy as so often portrayed in American journalistic and political discussion (eg the article discussed here), and the many, many signs of political, cultural, financial, and even moral strain emerging in the real-world China that is the stage for the current protests."
Carey Miller on Public Access to Private Land in Scotland
David Carey Miller (Aberdeen) has posted Public Access to Private Land in Scotland (Potchefstroom Electronic Law Journal) on SSRN. Here's the abstract:
article attempts to understand the radical reform of Scottish land law
in its provision for a general right of public access to private land
introduced in 2003 as part of land reform legislation, an important
aspect of the initial agenda of the Scottish Parliament revived in 1999.
The right is to recreational access for a limited period and the right
to cross land. Access can be taken only on foot or by horse or bicycle.
As a starting point clarification of the misunderstood pre-reform position is attempted. The essential point is that Scots common law does not give civil damages for a simple act of trespass (as English law does) but only a right to obtain removal of the trespasser. Under the reforms the longstanding Scottish position of landowners allowing walkers access to the hills and mountains becomes a legal right.
A critical aspect of the new right is that it is one of responsible access; provided a landowner co-operates with the spirit and system of the Act access can be denied on the basis that it is not being exercised responsibly. But the onus is on the landowner to show that the exercise of the right is not responsible.
Although the right applies to all land a general exception protects the privacy of a domestic dwelling. Early case law suggests that the scope of this limit depends upon particular circumstances although reasonable 'garden ground' is likely to be protected. There are various particular limits such as school land.
Compliance with the protection of property under the European Convention on Human Rights is discussed. The article emphasizes the latitude, open to nations, for limitations to the right of ownership in land in the public interest. The extent of the Scottish access inroad illustrates this. This leads to the conclusion that 'land governance' – the subject of the Potchefstroom Conference at which the paper was initially presented – largely remains a matter for domestic law; the lex situs concept is alive and well.
September 17, 2012
Georgia Closes State Archives
I love state archives. They are valuable resources for my genealogical research, but they are also wonderful sources of information for those interested in issues at the convergence of legal history and property. So I'm sad to see that budget cuts in Georgia have led to the closure of the state archives to the public. You can read the governor's announcement here.
After November 1, 2012, researchers will only be able to access the state archives by appointment, and then only to the extent that the remaining staff has the time to assist them. If you have been putting off any research in the Georgia state archives, I suggest you head to Morrow before the end of October.
Whanganui River granted legal identity
There is a fascinating story from New Zealand regarding an agreement between the government and the Whanganui River iwi (a group of Maori who live near the river) to grant the Whanganui River status as an entity under New Zealand law. "A spokesman for the Minister of Treaty Negotiations said Whanganui River will be recognised as a person when it comes to the law - 'in the same way a company is, which will give it rights and interests'." The river will be protected by two guardians, one representing the Crown, and the other representing the iwi.
The Whanganui River is the third longest river on the North Island of New Zealand. It has been subject to ongoing court battles between the Crown and the Maori since at least 1873. The area around the Whanganui River was heavily populated by Maori prior to the arrival of the Europeans, and the mouth of the river became an important trading post and European settlement. Efforts have been made for the past several decades to dam the river for hydropower. Those efforts have been heavily contested by the Whanganui River Maori Trust Board and environmentalists.
Thank you to Dan Ernst for the story tip!
Can Britain Boost Its Economy by Rolling Back Land Use Rules?
Nate Berg at the Atlantic Cities blog looks at David Cameron's attempt to role back local land-use regulations:
Kickstarting the United Kingdom's economy, according to Prime Minister David Cameron, "starts with getting the planners off our backs." Regulations holding back building projects are also holding back the economy, Cameron said recently on a morning TV news show (which was then quoted by this article from the BBC).
The Prime Minister says planning regulations have apparently prevented many people from taking on home improvement projects and room extensions, such as the expansion of kitchens or the building of "conservatories." Officials are hoping to ease the planning regulations that are supposedly holding these projects back by allowing any home extension project up to 8 meters to go ahead without planning approval for a one year period.
Arruñada on Land Titling and Business Formalization
Benito Arruñada has recently published Institutional Foundations of Impersonal Exchange Theory and Policy of Contractual Registries (University of Chicago Press). Here's the publisher's abstract:
Governments and development agencies spend considerable resources building property and company registries to protect property rights. When these efforts succeed, owners feel secure enough to invest in their property and banks are able use it as collateral for credit. Similarly, firms prosper when entrepreneurs can transform their firms into legal entities and thus contract more safely. Unfortunately, developing registries is harder than it may seem to observers, especially in developed countries, where registries are often taken for granted. As a result, policies in this area usually disappoint.
Benito Arruñada aims to avoid such failures by deepening our understanding of both the value of registries and the organizational requirements for constructing them. Presenting a theory of how registries strengthen property rights and reduce transaction costs, he analyzes the major trade-offs and proposes principles for successfully building registries in countries at different stages of development. Arruñada focuses on land and company registries, explaining the difficulties they face, including current challenges like the subprime mortgage crisis in the United States and the dubious efforts made in developing countries toward universal land titling. Broadening the account, he extends his analytical framework to other registries, including intellectual property and organized exchanges of financial derivatives. With its nuanced presentation of the theoretical and practical implications, Institutional Foundations of Impersonal Exchange significantly expands our understanding of how public registries facilitate economic growth.