November 9, 2012
Hudson on the Tension Between the Takings Clause and Public Trust Doctrine
Blake Hudson (LSU) has posted The American Takings Revolution and Public Trust Preservation: A Tale of Two Blackstones (Sea Grant Law & Policy Journal) on SSRN. Here's the abstract:
U.S. Constitution was forged out of a revolution that both rejected and
embraced aspects of English legal tradition. The Takings Clause and its
subsequent jurisprudential interpretation represents a rejection of what
the Framers at the time and constitutional Reframers since that time
viewed as central government over-reaching and improper interference
with private property rights. Though some form of due process had been
guaranteed to English property owners since Magna Carta, U.S. takings
jurisprudence has sought more stringent protections, relegating
government appropriation of property — and even regulation in some cases
— to specific circumstances and only after government compensation is
paid. This view represents Blackstone’s description of property as the
absolute right of every citizen.
On the other hand, the Framers left fully intact—and a different set of constitutional Reframers are increasingly seeking to use — the English common law doctrine of public trust to prevent private property rights from trumping the public’s interest in certain resources, especially in the coastal zone. This doctrine inherently conflicts with the Takings Clause in many cases, for if a resource is protected by the public trust, then any restrictions on property made pursuant to that protection cannot result in a taking — the restrained activity was never part of the property owner’s bundle of property rights to begin with. This represents Blackstone’s description of property as a right that “may be restrained by positive laws enacted for reasons of state or for the supposed benefit of the community.”
This essay highlights the inevitable legal tension between the Takings Clause and public trust doctrine and its implications for coastal zone resources in a time of climate change. Ultimately, our revolution to cast out both English occupiers and aspects of English legal tradition, while embracing and preserving other aspects of that tradition, represents a deeply rooted legal inertia that creates a unique set of challenges for protecting coastal resources in a time of climate change. Understanding this inertia, however, also presents opportunities to explore three implications of the Takings Clause-public trust tension: 1) resolution of future legal controversies related to climate change along the coast; 2) a potential rebalancing of modern takings jurisprudence, which has arguably disturbed the appropriate balance between private property protections and the public good; and 3) the creation of better governance structures through institutional design enhancements and adjustments—in this case focusing on the institution that is U.S. constitutional law.
November 8, 2012
Do Foreclosures Increase Crime?
The evidence is mixed:
A few months ago our Emily Badger reported on a study that found no direct correlation between home foreclosures and crime. The researchers drew that conclusion from a thorough analysis of housing markets and crime statistics in 142 metro areas across the United States. "Moving forward, researchers should begin to think about why the foreclosure crisis is not directly linked to rates of violent and property crime," they wrote.
Before other scholars move forward too quickly, they might consider another study — this one set to appear in the Journal of Urban Economics — that reaches the opposite conclusion. The new work, led by Ingrid Gould Ellen of New York University, found that recent foreclosures in New York City led to a 1 percent increase in crime on the same block. The largest effects occurred when properties went all the way through the foreclosure process, either to auction or bank ownership.
Alexander on The Complexities of Land Reparations
Greg Alexander (Cornell) has posted The Complexities of Land Reparations on SSRN. Here's the abstract:
The question whether unjust dispossessions of land perpetrated on whole peoples in the past should be corrected by restitution in kind, that is, granting reparations in the form of returning land to the dispossessed former owners or their present-day successors is substantially more complex than the questions posed by other forms of reparations. I argue that the complexities involved in all of the situations where claims for land reparations are made to correct historic injustices give us good reasons to be hesitant about granting such claims. At the same time, we should not dismiss such claims out of hand. Reparations which take a form other than restitution of dispossessed land may be both necessary and sufficient to establish a public marker of acknowledgment.
November 7, 2012
The Hurricane and the Housing Crisis
USA Today looks at the looming housing crisis in New York's outer boroughs:
In the city's five boroughs, an as-yet unidentified number of larger residential high-rises, including several low-income public housing projects run by the New York City Housing Authority, "are going to be out of commission for a very long time," Bloomberg said.
"The magnitude of the problem is we think we could have something between 30,000 and 40,000 people that we're going to have to find housing for," Bloomberg said. "We are working on it."
The Gothamist takes a different angle, examining whether tenants living in affected buildings can break their leases:
[E]ven if you weren't forced to leave your apartment, you could also get some money knocked off your rent if, say, you didn't have heat or hot water. "In New York and New Jersey, there is a warranty of habitability, in which the owner guarantees the apartment will be habitable," Dobkin explains. "And even if it's an act of God or nature such as a storm, the owner is responsible to the extent that a resident is entitled to a rent abatement if they are unable to use the apartment. No heat would often result in an abatement of 50 percent of the rent during the period when heat is required, but it's up to a judge to decide what impact it has on tenant's use of apartment."
Burling on Property and the Environment
James Burling (Pacific Legal Foundation) has posted The Uses and Abuses of Property Rights in Saving the Environment (Brigham-Kanner Property Rights Conference Journal) on SSRN. Here's the abstract:
While freedom and property may be inseparable, the temptation to sacrifice one or the other to seemingly more critical societal goals is ever present. In the past century, the environmental-related limitations on property have progressed from zoning to advance the social welfare, to utilitarian conservation to preserve the human environment, and more lately to the preservation of the environment for its own sake. With each step, property rights have been impacted further. From the imposition of zoning, to regulatory restrictions on the use of property, and to the mechanism of conservation easements, the control of property by the owners of property has diminished. If freedom and property are truly interrelated, there may be troubling implications on the future of freedom.
November 6, 2012
Today's Architecture Moment: Barclays Center Arena
The development of the Atlantic Yards project in Brooklyn has been a long and contentious affair. In a nutshell, the government used eminent domain to take a number of "blighted" private properties (including a homeless shelter and some mixed income housing) and then transferred them to powerful real estate developer Bruce Ratner. Ratner promised to build a state-of-the-art basketball arena for an NBA team, new luxury housing, and office space. The controversy over the eminent domain takings generated a New York Court of Appeals decision, many news stories, and a documentary film.
This week, the New York Times took a critical look at the development, asking if Ratner's project outweighs all the fuss. While the Times likes the basketball arena, the larger development looks like a miss:
Atlantic Yards project also exemplifies how the city, in this case hamstrung by the state, got planning backward, trying to eke public benefits from private interests awarded public subsidies and too much leeway. Development on this scale may take its lead from a developer’s vision but needs to proceed from public-spirited, publicly debated plans for what the city and streets should ultimately look like.
This area needed to have the conflicting street grids of the abutting neighborhoods linked. It needed more schools and public services to support the thousands of new apartments. It needed more pedestrian-friendly avenues and finer-grained architecture, possibly taller than now proposed in places but less monolithic at street level, with subtler and more humane massing of towers so that new buildings would improve the experience of walking along sidewalks and not just add square footage to the blocks.
Doremus on Managing Fisheries with Market-Based Strategies
Holly Doremus (Berkeley) has posted Why International Catch Shares Won't Save Ocean Biodiversity (Michigan Journal of Environmental Law) on SSRN. Here's the abstract:
Skepticism about the efficacy and efficiency of regulatory approaches has produced a wave of enthusiasm for market-based strategies for dealing with environmental conflicts. In the fisheries context, the most prominent of these strategies is the use of 'catch shares,' which assign specific proportions of the total allowable catch to individuals who are then free to trade them with others. Catch shares are now in wide use domestically within many nations, and there are increasing calls for implementation of internationally tradable catch shares. Based on a review of theory, empirical evidence, and two contexts in which catch shares have been proposed, this paper explains why international catch shares are not likely to arrest the decline of ocean biodiversity. Catch shares were developed to promote greater economic efficiency and profitability in the fishing industry. They have proven capable of doing so at the domestic level, although their effects on wealth distribution have frequently been controversial. Theoretical and empirical support for the proposition that catch shares promote conservation, especially of non-target resources, is thinner. Furthermore, in the international context catch shares face special challenges. Catch shares cannot resolve the value differences that underlie the most intractable disagreements about international fisheries management. They are less likely to reduce conflicts over total allowable catch in the international than in the domestic context, because distrust of managers and competitors runs deeper. Finally, catch share strategies require effective enforcement, which is both institutionally and practically difficult to provide for many international fisheries. In general, catch shares are not a promising route to improving international fisheries management, and pursuing them could distract the international community from more important steps toward improving conservation of global ocean resources.
November 5, 2012
Howdy from Old Savannah!
Many many thanks to Steve, Ben, Tanya and Mark for having me. As Steve said, a few familiar names to this blog set out on a wild excusion this past year by signing on as the innaugeral faculty at the Savannah Law School. So what could Savannah Law School offer that would make it worth a move? I'm going to pitch you five reasons why you'll want to make Savannah your home too -- or at least make you want to stop by for a visit.
Young Rock Star Faculty and Amazing Staff (myself excluded from the commentary). Have you ever tried to navagate an 18 person bicycle through an ancient city with your faculty and staff on board -- that's the kind of faculty and staff we have at Savannah Law School. The faculty and staff I have joined make teaching law sooooooo much fun. I have always had fun teaching law. But joining these highly competent, extremely thoughtful, and engaging people have made teaching so much fun this year. So Caprice, Elizabeth, Kelly, Kellyn, Belinda, Montre, Ray and Rose Anne --you rock!
The Building. Our building is a rennovation of a 1790's era hospital -- the largest rennovation in Savannah in the past forty years. Listen to the date again -- 1790's. The depiction above shows the charm that the building will hold for sure, but like so many things, there is more than meets the eye. There are tunnels under the building where people who succumbed to yellow fever in the 18th and 19th century were transported out of the city. And across the street is one of the best parks (Forsythe Park) anywhere. The building (they say) is haunted -- which in itself makes this the most unique law school in the country. This building is just waiting for Al Brophy to begin what I am sure will be an Emmy Award winning show on Bravo -- Monument Hunters. If you believe esthetics are important to education (which is a hard pitch given the plethera of neo-soviet style 1950's bomb shelters canvassing American colleges today), then Savannah might be the right place for you.
The Students. Our students have been awesome. The students are highly talented, multi-versed and, like their faculty, adventurers. They are kind, endearing and not without a little bit of pizzazz.
Savannah Itself. Savannah is one of the oldest cities in the U.S. Steeped in history and covered in spanish moss, Savannah is the crown jewell of the Southeast (all due respect to our Brethren in Charleston and New Orleans). But Savannah has more than just history. There is SCAD. There is Tybee Beach (12 minutes from my house). There is the Port. There are ghost tours everywhere. And the food is amazing.
The Tree. Last but certainly not least, nestled right outside the building is the Candler Oak, the oldest Oak Tree in the State of Georgia. The stories the tree could tell would be amazing.
Later this week I will take some picutres of the inside of the new rennocation and tell you more about this awesome building.
Map of the Day: The Geographically Smallest Winning Electoral College Map
Matt Yglesias explains:
I started with a list of states in order of population density. So you have DC, then New Jersey, then Rhode Island, then Massachusetts, and so forth. Eventually you get a set that wins you the electoral college. Except the bloc of the 18 densest states gives you 282 electoral votes—way more than you need. Eliminate Michigan, the 18th densest, and you have 266 electoral votes. So then you can round things out with little New Hampshire's four electoral votes and you have your winning map.
Recent SSRN Downloads
6. [135 downloads]
Why Philosophers, Social Scientists, and Lawyers Think Differently about Property Rights
Amnon Lehavi (IDC)
9. [80 downloads]
Wetlands, Property Rights, and the Due Process Deficit in Environmental Law
Jonathan H. Adler (Case Western)
10. [78 downloads]
The Law and Economics of Street Layouts: How a Grid Pattern Benefits a Downtown
Robert C. Ellickson (Yale)