February 22, 2013
No Good Density Goes Unpunished
The L.A. City Council recently approved new zoning guidelines for some areas of the city that allow for taller buildings near transit hubs. The strategy is intended to cluster new residential development along subway lines and bus routes.
It will surprise no one that residents of the affected areas aren't happy. In Hollywood, locals have started to organize against a large mixed-use development:
Nearby residents say Millennium Hollywood would make Hollywood's notoriously bad traffic worse, lengthening commutes and response times from police and firefighters. Construction noise and dust could hurt seniors and students living in the area, said Jan Martin, the president and chief executive of the American Musical and Dramatic Academy, which is next to the site.
Map of the Day: The West Wing & the Gall-Peters Projection
The West Wing does cartography:
Sawers on the History of Trespass
Brian Sawers (Maryland - VAP) has posted Keeping Up with the Joneses: Making Sure Your History Is Just as Wrong as Everyone Else's (Michigan Law Review First Impressions) on SSRN. Here's the abstract:
the majority and concurring opinions in United States v. Jones are wrong
about the state of the law in 1791. Landowners in America had no right
to exclude others from unfenced land. Whether a Fourth Amendment search
requires a trespass or the violation of a reasonable expectation of
privacy, government can explore open land without a search warrant.
In the United States, landowners did not have a right of action against people who entered open land without permission. No eighteenth-century case shows a remedy for mere entry. Vermont and Pennsylvania constitutionally guaranteed a right to hunt on open land. In several other states, statutes regulating hunting implied a public right to hunt on (and, by implication, enter) unfenced land.
February 21, 2013
Homeowners' Associations v. Green Practices
At the blog of Natural Resources Defense Council, Kaid Benfield goes after Homeowners' Associations for their opposition to sustainabe practices. He cites opposition to clothes drying, solar energy panels, landscaping requirements, and bans on gardening as most problematic.
Why Do Cities Vote Democratic?
Richard Florida explores what accounts for the Democratic tilt of the countries largest cities. His takeaway:
America is divided between cities of knowledge and skill and the rest. The residents of these knowledge cities not only do better economically, they are better-traveled, better-connected to the global economy, and more open to diversity. Perhaps because the work of the knowledge-based metros centers turns on knowledge, creativity, and abstract thinking, their residents tend to be more open to the notion that government can help improve the economy, better the environment, provide essential services (like healthcare), and protect the fundamental rights of disadvantaged or discriminated-against groups. [...]
Those who live outside these places see knowledge-based centers as elitist and coddled by government. They are well aware of the growing gap between the metro haves and have-nots, and know they are losing ground. They'd like to somehow stop the forces of change that are leaving them behind and bring back the good old days when they, and their more traditional vision of, America was on top.
February 20, 2013
The World's Most Ironic Squatter
I’m sure Florida’s efficient judicial system will put this to right forthwith. And if they mess up a bit of paperwork along the way, no worries—independent reviewers can investigate. BofA has been the conscience of the finance community. It would be a grave injustice to see it facing losses due to people claiming title to property they don’t really own.
Who Should Affordable Housing Help?
The NY Times asks whether affordable housing rules should be set up to help the very poorest or the lower middle class:
[A] new report ... found about two-thirds of the city’s recently developed affordable housing required occupants to have minimum income levels that were higher than the median household income in the areas where the housing was built.s an example, the report looked at a building in Highbridge, a poor section of the Bronx where the median income is $26,140, that advertised for tenants earning considerably more: between $29,931 and $53,800 to qualify for a studio, and $37,680 and $61,400 for a one-bedroom.
The notion of affordable housing that is too expensive may seem counterintuitive, but city housing officials say their efforts have focused, in particular, on an underserved population of New Yorkers who struggle to make ends meet but earn too much to qualify for public housing and other government assistance. That has helped a broad section of the city’s workers survive in a rental market that is among the most expensive in the nation.
February 19, 2013
Map of the Day: A New Fifty States
Here's a map that attempts to solve the problems posed by the electoral college. In this rendering of the USA, the states' borders have been redrawn so that they all have equal population. According the map's creators this would ends the over-representation of small states in presidential voting, more closley align political boundaries with economic reality (as many states are more centered on one or two metro areas) and end varying representation in the House (currently, the population of House districts ranges from 528,000 to 924,000).
(HT: Jessica Owley)
Mississippi Ratifies 13th Amendment
TPM has the story:
Earlier this month, Mississippi finally ratified the 13th Amendment banning slavery, after a specialist at the University of Mississippi Medical Center saw the movie "Lincoln" and started digging into the states' ratification of the legislation. [...]
The specialist, Ken Sullivan, found out that Mississippi lawmakers voted to ratify the amendment in 1995, but never sent the necessary paperwork to the Office of the Federal Register, according to the Clarion-Ledger report published Sunday.
Sullivan contacted the Mississippi Secretary of States' office in late January, and the Senate resolution was sent to the federal government. On Feb. 7, the Federal Register wrote back: "With this action, the State of Missippi has ratified the 13th Amendment to the Constitution of the United States."
Eagle on 'Economic Impact' in Regulatory Takings Law
Steven Eagle (George Mason) has posted 'Economic Impact' in Regulatory Takings Law (West-Northwest Journal of Environmental Law & Policy) on SSRN. Here's the abstract:
Penn Central Transportation Co. v. City of New York the Supreme Court
stated that the existence of a regulatory taking would be determined
through “essentially ad hoc, factual inquiries,” and that one of three
factors of “particular significance” was the economic impact of the
regulation on the claimant. This article examines the conceptual problem
whereby the Fifth Amendment requires compensation for the taking of
property and not a fraction of its owner’s worth. The fact that economic
impact of stringent regulations is greater when parcels are smaller has
led to a complex “parcel as a whole” test that conflates impact with
another Penn Central test, owner’s expectations. Furthermore,
application of the impact test to parcels held as investment property
might vitiate the temporary taking. The Federal Circuit’s recent
abandonment of its prior “return on equity” approach is emblematic of
Measuring the economic impact upon owners also is complex where government condemns part of an owner’s parcel, leading to difficulties in computing severance damages. Broad assertions that “offsetting benefits” conferred upon property owners by government actions reduce the impact of regulations also requires clarification.
The article concludes that unresolved issues and complexities in adjudicating the “economic impact of the regulation on the claimant” test provide an additional reason why the conceptually incoherent Penn Central doctrine must be replaced.
February 18, 2013
The Loneliest Places on Earth
Gizmodo has pictures of the 20 most isolated buildings in the world.
Anderson et al on the Link Between Zoning and Crime
James M. Anderson (RAND Corp), John MacDonald (Penn-Criminology), Ricky Bluthenthal (Southern Cal-Medicine), and J. Scott Ashwood (RAND Corp) have posted Reducing Crime by Shaping the Built Environment with Zoning: An Empirical Study of Los Angeles (Penn Law Review) on SSRN. Here's the abstract:
The idea of using law to change the built environment in ways that reduce opportunities to commit crimes has a long history. Unfortunately, this idea has received relatively little attention in the legal academy and only limited rigorous empirical scrutiny. In this Article, we review the considerable literature on the relationship between zoning, the built environment, and crime. We then report the results of two empirical studies on these relationships. First, we conducted a study of the effect of zoning on crime using 205 blocks selected in eight different relatively high crime neighborhoods in Los Angeles that have similar demographic character- istics but different forms of zoned land use. We find that mixed commercial- and residential-zoned areas are associated with lower crime than are commercial-only zoned areas. Second, we matched neighborhoods undergoing zoning changes between 2006 and 2010 with neighborhoods that underwent no zoning changes during this period but had similar preexisting crime trajectories between 1994 and 2005. The primary zoning change in these neighborhoods was to convert parcels to residential uses. We find that neighborhoods in which there was a zoning change experienced a significant decline in crime. Our results suggest that mixing residential-only zoning into commercial blocks may be a promising means of reducing crime.
February 17, 2013
Gun Violence, Property Taxes, and Community on Chicago's South Side
Although my field is comparative property law, today’s post is about a property issue a bit further from my expertise, and a bit closer to home.
President Obama visited my neighborhood on the South Side of Chicago on Friday. He came to give a speech on gun control at the Hyde Park Academy, a high school located just a twenty minute walk from President Obama’s Chicago home and a five minute walk from the University of Chicago Medical Center (UCMC), where Michelle Obama served as Vice President for Community and External Affairs. Hyde Park Academy is also located at the edge of an area with one of the highest gun violence rates in the city of Chicago, which itself has one of the highest homicide rates in the country. The speech was intended to emphasize that gun control is not only an issue of dealing with mass shootings of white children in small town Connecticut, but also everyday gun violence in urban areas across the country.
Discussions about gun violence have been particularly common on the University of Chicago campus during the weeks leading up to President Obama’s visit. On January 27, the university police arrested four high school and university students and alumni who were conducting a peaceful protest at the UCMC’s Center for Care and Discovery, a $700 million new building that the university has called the “largest single health care investment in [the] history of the South Side.” The January 27 protest was part of a broader campaign by community and student groups to push the university to re-establish a Level 1 trauma center, which could treat victims of trauma-related injuries suffered as a result of things like car accidents and gun violence.
Although the University of Chicago had a Level 1 trauma center decades ago, it was closed in 1988, with the university citing high costs. The predominantly black and low-income communities on the South Side now possess no adult Level 1 trauma center, requiring victims of trauma on the South Side to be transported to hospitals elsewhere in the city to receive attention. The need to re-establish such a center has been highlighted by a number of community organizations, one of the most prominent being a group of local students called Fearless Leading by the Youth (FLY). FLY’s 18-year-old co-founder, Damian Turner, was hit in 2010 by a stray bullet three blocks from the UCMC, but died 90 minutes later, after a nearly ten mile long ambulance ride to Northwestern Memorial Hospital. The university, however, has remained firm that an adult trauma center would imply excessive costs and that the difference in transport time is medically insignificant.
One of the arguments that has been raised in the debate over the trauma center is that the University of Chicago is tax exempt, but provides insufficient care (particularly trauma care) for the surrounding community to merit its exemption as a charitable organization. As with other non-profit hospitals across the country, one of the charity-based exemptions the UCMC receives is from property tax. (See this article by John Colombo for a detailed analysis of hospital property tax exemptions in Illinois.) The issue of property tax exemptions for non-profit hospitals has become a lightning rod in Chicago, particularly since the 2010 Illinois Supreme Court decision in Provena Covenant Medical Center v. the (Illinois) Department of Revenue. In Provena, a plurality found that the Department of Revenue had appropriately denied property tax exemption to a non-profit Chicago hospital due to its failure to exercise sufficient charitable use of the property. Rejecting the “community benefit” test widely used for federal tax exemption (which had replaced the previous emphasis on providing free or heavily discounted “charity care” for the poor in favor of a broader standard that could include things like health education or research), the plurality found that the appropriate basis for property tax exemption was relief of government burden. This relief could be provided in part through charity care, understood as a “gift” for the benefit of individuals or lessening the burden of government.
The Provena ruling did not, however, lay out a specific standard for appropriate levels of relief of government burden or charity care. In 2012, the Illinois legislature took up the issue, enacting a law stating that hospitals would qualify for property tax exemption provided the value of the hospital’s charitable activities met or exceeded its estimated property tax liability. These activities could include charity care, health services to poor or underserved communities, subsidies of state health care programs or state or local government activities related to health care for underserved or low-income populations, unreimbursed costs for Medicare or Medicaid patients, or any other activity that relieves the burden of government or addresses the health of low-income or underserved individuals.
What might these developments mean for the current debate over the re-establishment of a trauma center at the UCMC? In this post, John Colombo argues that the recent legislation is unlikely to affect hospital behavior generally, since hospitals that are underperforming in terms of charity care can simply cut a check to a government program to make up the difference. While this difference could potentially be large for UCMC - a 2009 study by the Center for Tax and Budget Accountability found that the UCMC received annual property tax breaks that were estimated at nearly three times (and total tax breaks estimated at nearly six times) what the UCMC spent annually on charity care - the legislation provides wide leeway for discretion as to how a hospital makes it up. This discretionary element of a hospital’s determination of how it meets the standard is key for the trauma center debate. As with a broad “community benefit” standard, the flexibility in how the new standard is met means that there is no mandate for hospitals to provide particular kinds of services or fit a particular community’s needs. Colombo argues for a third way, in which the question is not how much charity care a non-profit hospital offers or broad “community benefits,” but what services it brings to its community that cannot be acquired in the private market, playing a “gap filler” role which fits more closely the underlying reason that non-profit entities exist. Such a standard, though unlikely to be implemented, could have interesting implications for the kinds of services that UCMC would be expected to provide.
But underlying all these standards is a persistent ambiguity about who exactly a non-profit hospital is responsible for serving, and what “community” might mean. If we think about this in terms of Gregory Alexander’s social obligation theory, in which owners are obligated to provide to their communities benefits that the community reasonably considers to be necessary for human flourishing, to what community is a non-profit hospital obligated to provide such benefits, particularly when it receives property tax exemptions? Should a hospital’s charitable activities serve the neighborhood in which it is located? Or does “community” mean something broader? Does it simply mean “the public,” as is implied by the Illinois legislation’s approach to property tax exemption for charitable activities that relieve government burden? How might our analysis differ for federal tax exemptions and something like a property tax exemption, where the tax dollars lost to the government through exemption would have been spent on local services? In the case of the UCMC, how can we reconcile the importance of the broad benefits it provides through cutting-edge research and specialty-care services with the local nature of its property tax exemptions and the trauma care needs of the South Side?
In his speech on Friday, President Obama emphasized that what he was talking about was “not just a gun issue,” but also a question of “the kinds of communities that we’re building.” This question seems appropriately posed not only in relation to the prevention of gun violence, but also responsibility for the care of its victims.
The Wild Pig Theory of Law Journal Creation
When I was a young associate at a large law firm, I discovered something interesting about partnership management structure. I called it The Wild Pig Theory of Law Firm Management.
Here it is in its simplest and most elegant form:
If there was a herd of wild pigs rampaging through the office, no one would mention it, because the first person who did would be appointed chair of the Ad Hoc Committee to Rid the Firm of Wild Pigs.
It is law review submission season again. If you use Expresso, you can scroll through some 600-700 places to submit your work. There are hundreds of specialty law journals. Carved out a niche for yourself in maritime law? There are a handful of journals just for you. Animal law? Check. Criminal law? Of course. Business law? Dozens and dozens.
You know where this is going.
There is no single, general comprehensive law journal devoted to all things Property.
There are timely land use journals, innovative IP journals, cutting-edge human rights journals that may occasionally include property related issues, cranky law-and-economics journals still applying game theory to trespass, and estate and gift tax journals for those unafraid of math.
But there is no one journal that would, for example, be the natural home of the impressive scholarship produced at the ALPS conference each year.
Here's the thing: I can't create it, and probably neither can you. I don't have the time or resources. You probably don't either.
But, I thought it was worth asking: Anybody good at herding wild pigs?
Because it sure would be nice.
Mark A. Edwards