PropertyProf Blog

Editor: Stephen Clowney
Univ. of Kentucky College of Law

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Friday, July 19, 2013

The Changing Nature of Wealth in the US or ... Why the Civil War was Inevitable

Slave wealth

 

This chart, from a new paper by Thomas Piketty and Gabriel Zucman (PDF), demonstrates how drastically  the nature of wealth has changed in this country over the last two centuries.  It also shows in plain terms that anyone who thinks slavery could have ended with compensated emancipation is a fool. The value of the slaves held in the south surpassed the value of all the industrial capital ("other domestic capital") of the entire country in 1850.  As Matt Yglesias notes, "When you consider that the institution of slavery was limited to specific subset of the country, you can see that in the region where it held sway slave wealth was wealth."

Here's another, more specific, quote from Roger Ransom's "The Economics Of The Civil War":

One "economic" solution to the slave problem would be for those who objected to slavery to "buy out" the economic interest of Southern slaveholders. Under such a scheme, the federal government would purchase slaves. A major problem here was that the costs of such a scheme would have been enormous. Claudia Goldin estimates that the cost of having the government buy all the slaves in the United States in 1860, would be about $2.7 billion (1973: 85, Table 1). Obviously, such a large sum could not be paid all at once. Yet even if the payments were spread over 25 years, the annual costs of such a scheme would involve a tripling of federal government outlays.

Steve Clowney

July 19, 2013 | Permalink | Comments (1) | TrackBack (0)

Is This the Most Beautiful City Street in the World?

Amigos

A pretty awesome slideshow:

In the Brazilian city of Porto Alegre lies the 500 meter stretch of Rua Gonçalo de Carvalho - an amazing tree-lined avenue that may well be the most beautiful street in the world. Towering Tipuana trees line both sides of the road, creating an incredible green archway that looks like a mythical forest. It's amazing that this verdant space is actually three blocks in the middle of a modern city! The Tipuana trees along Rua Gonçalo de Carvalho were planted in the 1930′s and they have grown into a shady neighborhood canopy for the past 70 years.

Steve Clowney

July 19, 2013 | Permalink | Comments (0) | TrackBack (0)

Freyfogle on Private Ownership and Human Flourishing

FreyfogleEric Freyfogle (Illinois) has posted Private Ownership and Human Flourishing: a Critical Review on SSRN.  Here's the abstract:

This essay surveys the many, contradictory links between private ownership and human flourishing and assesses the moral implications of this complexity. It begins with and ultimately broadens claims made by leading South African scholars on the need to reconsider longstanding ways of thinking about property, particularly the “rights paradigm.” Private ownership in obvious ways benefits an owner. But as explained, the links between private rights and human flourishing are far greater, implicating not just owners but neighbors, surrounding communities, the landless, future generations, and other life forms. The recognition of private property rights can both expand and curtail human flourishing. As for human flourishing, it is equally complex in that it is affected by many factors going far beyond physical needs. Property rights are created by law and involve the use of state power to protect rights by curtailing the liberties of non-owners and others. The only sound moral justification of this use of coercive power — this use of state power to help owners control and dominate others — rests in the ways a well-designed property regime can foster the welfare of nearly everyone, owners and non-owners alike. Law thus should not vest an owner with any power that does not, on balance, promote widespread human flourishing. Inherited ways of thinking about private property cloud these realities and distort inquiries into property’s origins and moral and practical consequences. Much of this thought is best wiped away with discussion begun from a new place, from an express recognition of private property as an evolving, socially created, morally complex institution that can both promote and undercut human flourishing, an institution that must be carefully calibrated to maintain its moral legitimacy and maximize its social benefits.

Steve Clowney

July 19, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, July 18, 2013

Casebook Announcement

Grant Nelson, Dale Whitman, Colleen Medill, and Shelley Saxer have recently put out a new edition of their casebook, Contemporary Property.  Here's the publisher's blurb:

The book begins with fundamental Property principles and concepts, followed by personal property with an introduction to intellectual property. Subsequent chapters cover present and future interests, concurrent estates, landlord and tenant law, real estate transactions, easements, covenants, and public land use regulation (including zoning, eminent domain and regulatory takings, and constitutional challenges based on due process, equal protection, freedom of speech and freedom of religion).

The publisher also emphasizes that the authors have redone the teacher's manuel to make it easier for experienced teachers to switch books and new teachers to go through the material the first time.

Steve Clowney

July 18, 2013 | Permalink | Comments (0) | TrackBack (0)

Narula on Purchasing and Leasing Agricultural Land in Developing Countries

NarulaSmita Narula (NYU) has posted The Global Land Rush: Markets, Rights, and the Politics of Food ( Stanford Journal of International Law) on SSRN.  Here's the abstract:

In the past five years, interest in purchasing and leasing agricultural land in developing countries has skyrocketed. This trend, which was facilitated by the 2008 food crisis, is led by state and private investors, both domestic and foreign. Investors are responding to a variety of global forces: Some are securing their own food supply, while others are capitalizing on land as an increasingly promising source of financial returns. Proponents argue that these investments can support economic development in host states while boosting global food production. But critics charge that these "land grabs" disregard land users’ rights and further marginalize already vulnerable groups: small-scale farmers, pastoralists, and indigenous peoples who are being displaced from their land and from resources essential to their survival. Amid mounting global protests, two dominant frameworks have emerged to assess and contest the global rush for agricultural land. This Article critically examines both approaches.

Part I provides an overview of the drivers and impacts of large-scale land transfers and the problematic land transactions involved. Part II sets out the contours of what I term the market-plus approach and the rights-based approach — the frameworks assumed respectively by proponents and opponents of these deals. Part III analyzes key conceptual differences in each framework’s approach to rights and risks and to land distribution. I argue that the market-plus approach tolerates and facilitates rights violations, whereas the rights-based approach sets a normative baseline that repudiates these impacts and addresses key distributive concerns. Part III assesses the potential of each approach to effectively regulate land deals in practice. I find that both approaches emphasize procedural safeguards to protect land users’ rights and argue that these safeguards are ineffective at contesting the power dynamics at play in land transactions. Part IV proposes concrete reforms to help empower communities most affected by land deals and argues that international actors must be more involved in securing rights protections.

Steve Clowney

July 18, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 17, 2013

Echeverria on 'Ripeness' Doctrine in Takings Litigation

EcheverriaJohn Echeverria (Vermont) has posted Horne v. Department of Agriculture: An Invitation to Reexamine 'Ripeness' Doctrine in Takings Litigation (Envtl Law Reporter) on SSRN.  Here's the abstract:

In June 2013, the Supreme Court issued a decision in Horne v. Department of Agriculture, arguably the most obscure of the Supreme Court’s trilogy of takings cases in the 2012-13 term. The case arose from a U.S. Department of Agriculture order imposing sanctions on California raisin growers for failing to comply with the requirements of a marketing order issued under the Agriculture Marketing Agreement Act of 1937. Reversing the U.S. Court of Appeals for the Ninth Circuit, the Supreme Court ruled that the growers presented a “ripe” takings claim and that the appeals court erred in concluding that it lacked “jurisdiction” over the claim. Horne invites a reexamination of the confusing and under-theorized legal doctrine governing the distribution of takings cases among different federal courts and between federal and state courts. The thesis of this article is that the Takings Clause precludes a property owner from presenting a viable legal claim for equitable relief so long as the claimant has the opportunity to pursue a claim for just compensation under the Takings Clause. Thus, the reason a claimant cannot sue to enjoin a taking in federal District Court when there is an opportunity to sue for financial compensation in the U.S. Court of Federal Claims is that the claim for equitable relief fails to state a valid legal claim; contrary to the suggestion of the Court in Horne, and that of many lower courts, neither the ripeness doctrine nor subject matter jurisdiction is relevant in this context. A different principle governs whether takings claims seeking just compensation based on local government can go forward in federal or state court, the issue addressed in the landmark Williamson County case. While unfortunate language in that decision suggests that ripeness doctrine governs this choice of forum, the preference for state courts over federal courts in takings cases is best understood as resting on federalism values, including (1) the advantages of leaving land use disputes to state judges with superior local knowledge and (2) the notion that a sovereign state cannot be viewed as effecting a taking until property has been taken and the state courts have addressed a property owner’s claim for compensation under the Takings Clause. If Horne serves as a springboard for rationalizing the Court’s rules on forum selection in takings cases, it will turn out not to be such an unimportant case after all.

Steve Clowney

July 17, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 16, 2013

The Largest Building in the World Opens

New-Century-Global-Centre-008

The world's largest building as just opened in the Chinese mega-city of Chengdu.  The Guardian gives a preview:

A 100m tall cliff-face of blue mirrored glass, stretching 500m along a triumphal plaza, the New Century Global Centre houses an entire seaside resort, along with a 14-screen Imax cinema, Olympic-sized ice rink, two five-star hotels and its own Mediterranean shopping village – all wrapped with a vast ribbon of offices. Sprawling for 1.7m square metres, it could fit 20 Sydney Opera Houses beneath its glass roof. It is declared by its creators to be "a landmark which commands the world and is looked upon by the world with respect," a pleasure dome that Kubla Khan could only dream of.

Steve Clowney

July 16, 2013 | Permalink | Comments (1) | TrackBack (0)

Gatewood on the Evolution of the Right to Exclude

GatewoodJace Gatewood (John Marshall - Atlanta) has posted The Evolution of the Right to Exclude – More than a Property Right, a Privacy Right (Mississippi College Law Review) on SSRN.  Here's the abstract:

More than two hundred years ago, William Blackstone defined the right of property as “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” This concept, commonly referred to as the Right to Exclude, has been arguably one of the most significant and essential elements in defining our understanding of what constitutes property in the United States. Since Blackstone’s description of property in the mid-eighteenth century, the right to exclude others has emerged as the single most important factor in determining the existence of private property. Historically, the right to exclude concerns the relationship between people with respect to things, “such that the so-called owner can exclude others from certain activities or permit others to engage in those activities and in either case secure assistance of the law in carrying out this decision.” But, from a present-day perspective, the right to exclude is so much more than a property right that defines the existence of private property and the relationships between owners and things. It is a right that has evolved beyond the legal constructs of traditional property law to also encompass legal entitlements and benefits possessed by one person over another irrespective of the legal relationship between such person and the thing in which the right is claimed. This Article explores the evolution of right to exclude beyond being an essential and fundamental property right associated primarily with interests in “things” (i.e., in rem conception of property rights) to also being the societal compass that helps form reasonable expectations of privacy that guide us in our dealings and relationships with one another (i.e., in personam conception of property rights). This Article also addresses how this new understanding of the right to exclude may be used to resolve expanding privacy concerns, particularly in the wake of advanced surveillance technology.

Steve Clowney

July 16, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, July 15, 2013

Alternative Visions of Central Park

In 1857, New York City announced a design competition to improve and expand Central Park.  As many people know, Frederick Law Olmsted and Calvert Vaux’s submitted the winning entry and claimed the $2000 prize. Over 150 years later, the park remains one of the most beloved civic spaces in the country.  The design has been so successful that it's almost difficult to imagine the city without it. 

But a recent exhibit at the New York Historical Society takes a look at what might have been.  In 1857, 33 designs were submitted for the park.  Surprisingly, only five survive.  Here's a link to Olmsted's design.  Here are images of a couple of the proposed alternatives.  Central park could have had a lot more topiaries

Steve Clowney

July 15, 2013 | Permalink | Comments (0) | TrackBack (0)

Who Owns the Airspace Above Your House?

Brian Palmer digs into the legal considerations in a piece aimed at the general public:

National Geographic photographer George Steinmetz was arrested for trespass on June 28 after circling his paraglider over a Kansas cattle feedlot, according to an Associated Press report published Wednesday. Local officials say Steinmetz didn’t have permission to launch his flyer from the property or to take photos from the air. Can you keep people from gliding over your property?

Up to a point. Before the advent of air travel, landowners owned an infinitely tall column of air rising above their plot. (The Latin doctrine was Cujus est solum ejus usque ad coelum, or “whose is the soil, his it is up to the sky.”) In 1946 the Supreme Court acknowledged that the air had become a “public highway,” but a landowner still had dominion over “at least as much of the space above the ground as he can occupy or use in connection with the land.” In that case the court held that a plane flying just 83 feet in the air—the commotion was literally scaring the plaintiff’s chickens to death—represented an invasion of property. The justices declined to precisely define the height at which ownership rights end. Today, the federal government considers the area above 500 feet to be navigable airspace in uncongested areas. While the Supreme Court hasn’t explicitly accepted that as the upper limit of property ownership, it’s a useful guideline in trespass cases.

Steve Clowney

July 15, 2013 | Permalink | Comments (0) | TrackBack (0)