Friday, October 26, 2012
In the New Yorker, Adam Gopnick traces the growing importance of thinking about place and space:
The new space history has one great virtue. It forces upon historians, the amateurs we all are as well as the pros we read, a little more humility. American prosperity looks like a function of virtue and energy, but the geographic turn tells us that it’s mostly a function of white people with guns owning a giant chunk of well-irrigated, very well-harbored real estate off the edge of the World Island, bordering a hot land on one side and a cold one on the other. Really, you can’t miss. Our geographic truth enters our songs and sagas even if it evades our sermons: O beautiful for spacious skies, for amber waves of grain, for purple mountain majesties, above the fruited plain; this land is my land, from the redwood forest to the gulf-stream waters. The geographic truth beneath our prosperity is as naturally sung by our bards as the olive oils and wine-dark sea at the heart of Greek culture were sung by theirs.
Carol Rose (Arizona/Yale) has posted Property and Emerging Environmental Issues - the Optimists vs. The Pessimists on SSRN. Here's the abstract:
Can property rights and markets address environmental issues? Some say yes and some say no. This article tracks the debate through several iterations, beginning with the 1980 bet between by the biologist Paul Ehrlich and the economist Julian Simon. The former bet that the world was exhausting its natural capital and that a particular basket of minerals would therefore increase in price, while the latter bet that human ingenuity would substitute for natural capital and make prices fall. The optimistic Simon won that bet, but another version of the debate was soon to come, with free market environmentalists asserting that property and markets can evolve even for diffuse environmental resources. But more pessimistic commentators point out that success is not assured, and that social and political factors, and even past property rights regimes, can present substantial obstacles. The upshot appears to be that if one is to be optimistic about property and market approaches, one must be optimistic about social and political factors as well.
Thursday, October 25, 2012
The Architect's Newspaper takes a look at the attempt to catalogue and publicize New York's privately owned public spaces (POPS). POPS, which entered the public consciousness during the fervor over Occupy Wall Street (Zuccotti Park is a privately owned public space) were introduced to New York in a 1961 zoning resolution. The city offers zoning concessions developers if they make spaces accessible to the public. There are currently over 500 POPS in New York City, ranging from extended sidewalks to fancy indoor atriums, most of which are located in Manhattan.
Kieran Oberman (University College Dublin) has posted Is Theft Wrong? on SSRN. Here's the abstract:
Most people think that the actual distribution of property poorly reflects what people are morally entitled. Were wealth to be justly distributed, some people would have more than they currently possess; others, less. Theft is one means by which a more just distribution could be pursued. Those who currently have less than their due could take from those that have more. Yet most people also think that theft is wrong, even when it redistributes wealth in the direction of justice. This article investigates why. It examines three arguments against redistributive theft: that (1) it is illegal, (2) disruptive of legitimate expectations and (3) undemocratic. All three arguments are shown to fail. The conclusion the article reaches is a surprising one. Theft is not always wrong. In fact it seems to be justified whenever it is an effective, proportionate and necessary means to pursue distributive justice.
Irina Manta (Hofstra) has posted Reasonable Copyright (Boston College Law Review) on SSRN. Here's the abstract:
Using the lens of the cognitive bias literature, this article examines and critiques the “reasonable man” standard found across a wide range of legal doctrines. I focus on the use of the standard in an extremely fuzzy area of the law: the law of copyright. In copyright, the test for infringement is whether a “reasonable observer” would believe that two works — often involving media that do not lend themselves to precise measurement — are substantially similar. I begin by exploring and casting doubt on the usefulness of the reasonable man standard in such a setting. Are judges and juries truly able to determine what an abstract reasonable actor would find substantially similar in the comparison of two works? What types of cognitive biases will likely cloud this determination? And are biases likely to have a stronger or weaker effect when infringement questions are subjected to group deliberation, such as within a jury, as opposed to the individual decision-making of judges? Next, I address the problems that I uncover in the copyright context by first reviewing some potential solutions including both a proposal to reduce the role of juries in substantial similarity determinations and the possibility of trial bifurcation. Ultimately, I show that an openly subjective standard that focuses on the intended audience of works and uses social science surveys as evidence of infringement should replace the prevalent “objective” reasonable observer standard. Implementing such a solution would at least partially acknowledge that we are dealing not with perfectly reasonable but rather boundedly rational actors.
Wednesday, October 24, 2012
Over at the Environmental Law Prof Blog, Dave Owen has a post suggesting that the Supreme Court's recent activity around the Takings Clause may reflect the Justices’ discomfort with categorical rules:
For years, the Court’s takings decisions have sought to resolve a few tensions. [One] prominent tension has been between the desire for clear, readily applicable rules, which theoretically will supply greater predictability and consistency, and more ad-hoc standards, which theoretically will better promote individualized justice.
Lawyers who think about takings have grown accustomed to perceiving the anti-regulatory agenda and the clarity agenda as aligned. [...] The last few years, however, have produced a few cases that don’t fit with that traditional perception. In Stop the Beach Renourishment v. Florida Department of Environmental Protection, one key question was whether a so-called “judicial taking” is possible. Justice Scalia’s plurality opinion endorsed the idea that judicial takings could exist, thus rejecting a potentially clear and categorical rule against judicial takings. Last week, the Court heard oral argument in Arkansas Game & Fish Commission v. United States. The case arose because management of a federal water project allegedly caused extensive and damaging, but also temporary, flooding of state land. Prior decisions seemed to endorse a categorical rule that such flooding couldn’t be the basis for a takings claim—the remedies instead lie in tort law—but at oral argument, the conservative justices seemed skeptical of that rule. Finally, in Koontz, one key issue is whether a monetary exaction can be categorically excluded from the Dollan exaction test (the other key question is whether a “failed exaction”—that is, and exaction that is proposed but never imposed—can form the basis of a takings claim). While no one outside the Court knows exactly why the Court granted cert, one reasonable hypothesis is that some of the justices are troubled by that categorical rule as well.
Tim Mulvaney responds here.
Amnon Lehavi (IDC - Herzliya) has posted Why Philosophers, Social Scientists, and Lawyers Think Differently about Property Rights on SSRN. Here's the abstract:
is a powerful concept. It features prominently in academic and public
discourse. But it is also a source of ongoing confusion. While some of
this disarray may be attributed to the success of “disintegrative”
normative agendas, much of it is the result of a methodological and
conceptual disconnect both within and among different fields of study.
Aimed at narrowing this gap, this Article analyzes the transformation of
property from a moral and social concept into a legal construct. It
seeks not to develop a historical or intellectual account of such an
evolution, but to analyze the institutional and structural features of
property once it is incorporated into the legal realm.
The Article identifies the unique jurisprudential ingredients of a system of rules by which society allocates, governs, and enforces rights and duties among persons in relation to resources. It examines the work of decision-making institutions entrusted with the task of designing property norms over time. Clarifying the institutional and structural attributes of property does not require, however, adhering to a uniform body of substantive norms or to a single set of underlying values. Illuminating the construction of property allows rather for a better informed debate about the socially-desirable content of property rights.
Tuesday, October 23, 2012
Claire Thompson looks at the use of Transferable Development Rights (TDRs) in Seattle, focusing on how they're being used to preserve farmland.
The New York Times profiles the Keret House, a mere 28 inches across at its narrowest point:
What is Keret House like inside? Raucous parties are unlikely to happen there. The kitchenette is three feet wide (though that might not faze New Yorkers), with a miniature sink and a sliding door that conceals one of those cramped airplane bathrooms. The second floor, reached by a ladder, holds a bed whose dimensions do not encourage overnight guests.
The downstairs living area is the skinniest spot in the house, 35 inches wide. But a claustrophobe can take comfort that it also has the highest ceilings and “gets plenty of eastern light,” from one of two windows, Mr. Szczesny said. The architect used semitransparent plastic for the roof, rather than concrete, to bring in additional light and create a sense of space.
A helpful slideshow accompanies the story.
Ian Ayres (Yale) and Joshua Mitts (Yale - student) have posted Three Proposals for Regulating the Distribution of Home Equity on SSRN. Here's the abstract:
Micro-lending decisions about four specific kinds of mortgage terms when present in a substantial cluster of mortgage contracts can exacerbate macroeconomic risk by increasing the chance that the housing and lending markets will have to absorb a wave of simultaneous defaults after a downturn in housing prices. These four volatility-inducing terms – low down payments, deferred or non-amortizing principals, balloon payments, and interest rate resets – increase the risk of lender default by increasing the chance that either the borrower will stop making payments on a mortgage with negative equity or that lenders will refuse to refinance loan principles with negative equity. In contrast, during the 'amortization era' (when mortgagors were more likely to borrow at different times, with more substantial down payments, and more continual rates of amortization, without a need to refinance), an equally sized negative shock to housing prices would likely produce less negative equity, to a smaller set of borrowers. Instead of prohibiting the volatility-inducing terms, we propose three policies to better assure a greater diversification in the distribution of equity: a modified home-mortgage interest deduction; a modified risk-retention requirement under Dodd-Frank; and most importantly, a system of leverage licenses. Limiting the simultaneous clustering of negative equity mortgages can reproduce the structural advantages that were a natural byproduct of the amortization era where inevitable downturns would disparately affect homeowners with different levels of equity.
Monday, October 22, 2012
Ilya Somin unpacks an editorial on the upcoming referendum:
In Friday’s Washington Post, state legislators Scott Surovell and Linda Puller published an op ed attacking Question 1, the eminent domain reform referendum question that Virginians will vote on in November. Unfortunately, their arguments are off-base, and some are seriously misleading.
Question 1 would amend Virginia’s Constitution to forbid economic development takings of the kind the US Supreme Court allowed in Kelo v. City of New London. Such takings often enable powerful interest groups to use the power of eminent domain to transfer property to themselves at the expense of the politically weak; they also tend to destroy more economic value than they create. If adopted by the voters, Question 1 would provide some important protection against such abuses.
Mohamed Hadid, who has bult more than a dozen Ritz-Carlton hotels and lots of mega-mansions in Beverly Hills, bought 97 acres of property on a ridgeline outside of L.A. Unfortunately, it doesn't seem like Hadid did a very thorough investigation of the property before the real estate closing. It turns out that the popular Hastain Trail, well-used by local hikers, runs arcoss a third of the property. When Hadid tried to erect fences across the trial, grassroots groups sued and won a victory in state court. According to one source:
In California, private land that is in continuous use by the public for five years is automatically considered a public easement if the private owner doesn’t do anything in that five year period, or if the land has a history of public use. When Hadid purchased the land in the early 2000s, the public right of way was already well-established. A similar case is being worked out with Runyon Canyon‘s infamous Pink House.
Hannah Alsgaard (Berkeley - student) has posted Rural Inheritance: Gender Disparities in Farm Transmission (North Dakota Law Review) on SSRN. Here's the abstract:Farmers are farmers’ sons. Notable in our modern day, heralded by many as a gender-neutral society, it is farmers’ sons, not farmers’ daughters, who become farmers and take over ownership and management of the family farm. It has long been true that agricultural knowledge and land have passed through generations of men. In contrast, daughters, even today, are neither considered to be farmers nor likely to inherit family farm land. This Article begins by chronicling how farmland is inherited (by sons) then discusses why the pattern of excluding women continues. There have been substantial legal changes in the United States impacting land inheritance and ownership, culminating with the Equal Protection Clause’s extension to gender discrimination and the gender-neutral Uniform Probate Code. Social changes have also been tremendous, but even legal and social developments have been unable to correct the gender disparity in farm inheritance. After exploring many legal and social factors, I conclude it is grooming — at the familial, governmental, and social levels — that plays the most vital role in training future farmers and mainly accounts for the gender difference in farm inheritance and the farming profession. This article ultimately proposes girls must be groomed to farm in order to rectify the vast gender disparity in the ownership and management of family farms. A three pronged approach will be needed to remedy the situation, specifically: changing the role of lawyers, educating girls and women, and educating testators. What remains most important is that daughters are given the same opportunity as sons to farm based on merit, rather than being excluded from farm inheritance merely because of their gender.