Monday, April 13, 2015
John Echeverria has published Eschewing Anticipatory Remedies for Takings: A Reply to Professor Merrill (Harvard Law Review). Here's the piece's conclusion:
For the past thirty years or so, the Takings Clause has served as the favorite vehicle for judges, scholars, and advocates seeking to make the Bill of Rights a more robust bulwark against regulation of economic interests by democratically elected government. By virtue of its language and its original intended purpose, the Takings Clause has never been a very good candidate for this role. Nonetheless, the frequently discussed (and probably exaggerated) doctrinal uncertainties of takings law have made it a relatively fertile field for the propagation of new ideas. But too much logic and too much history appear to stand in the way of the latest innovative proposal for expanding takings law: anticipatory remedies. The Takings Clause — also known as the Just Compensation Clause — is all about just compensation, and there is no sound reason for changing that now. Professor Merrill has offered up many useful and important ideas over his distinguished career, but anticipatory remedies for takings is not among them.
Friday, April 10, 2015
From Joe Singer's Blog:
The California Supreme Court has struck down a voter initiative that barred all sex offenders from living within 2000 feet of schools and parks. In re Taylor, 83 U.S.L.W. 1299, 2015 BL 54822 (Cal. 2015). The court held that the ban deprived sex offenders of liberty without due process of law because it rendered many sex offenders homeless and was not reasonably related to government interests in protecting children. Because 97 percent of the county was off limits to sex offenders, many had no place where they could live or receive medical treatment and services, depriving them of constitutionally protected liberty interests. The law also made it difficult or impossible for the sex offenders to be monitored by parole officers, thereby defeating the purpose of the regulation and depriving it of any rational relationship to the legitimate government objective of protecting the public.
Tim Iglesias (San Francisco) has posted Maximizing Inclusionary Zoning's Contributions to Both Affordable Housing and Residential Integration (Washburn Law Review) on SSRN. Here's the abstract:
Inclusionary zoning is a popular policy that can uniquely serve both affordable housing and fair housing goals at the same time. Assuming the U.S. Department of Housing and Urban Development finalizes its proposed “Affirmatively Furthering Fair Housing” regulation, inclusionary zoning will become more broadly used. But more extensive use of inclusionary zoning poses both opportunities and risks for housing advocates because of the following three issues: (1) Unacknowledged tradeoffs between affordable housing and fair housing goals in inclusionary zoning design and implementation; (2) Conflicting concepts of residential integration; and (3) Legal challenges to inclusionary zoning. The challenge facing inclusionary zoning supporters is: How can we maximize the complementary nature of inclusionary zoning’s affordable housing and fair housing goals? This article explores the challenges and makes recommendations.
Marc Roark (Savannah) has posted Slavery, Property, and Marshall in the Positivist Legal Tradition (Savannah Law Review) on SSRN. Here's the abstract:
In 1819, a slave ship called the Antelope entered the harbor of Savannah carrying Africans originally detained as slaves on U.S., Spanish and Portuguese vessels. John Marshall four years later would hold that slaves originally captured on U.S. ships were entitled to their freedom, while those originally held by Spanish and Portuguese interests should be returned to slavery, pending proof of claim. Marshall's opinion implicitly sets law and morality at opposite poles, freeing the law to undertake morally questionable acts. This essay examines the tension underlying Marshall's opinion that positivism's negative effects (here the establishment of slavery outside of a moral order) continue to have pervasive consequences, even after legal regimes change. For example, the disarming of the transatlantic slave act by Congress in 1807 did not prevent Africans on board the Antelope from being transported away from their homes, held for four years pending judicial decision, and then held an additional two years while ancillary claims to their freedom were resolved. The essay suggests that property's static nature preserves institutions even after they've been deemed illicit by other law.
Thursday, April 9, 2015
Chris Cunningham (Federal Reserve Bank of Atlanta) has posted Estimating the Holdout Problem in Land Assembly on SSRN. Here's the abstract:
The Supreme Court's recent decision in Kelo v. New London allows the use of eminent domain to facilitate private economic development. While the court's condition for allowing takings was highly expansive, there may be a market failure that warrants state intervention when parcels of land need to be combined for redevelopment. The collective action or strategic holdout problem associated with land assembly may limit redevelopment of older communities when one or more existing owners seek to capture a disproportionate share of the potential surplus. The problem may be compounded by landowners' uncertainty as to the true value of the expected surplus to be divided (Eckart, 1985; Strange, 1995). At the same time, developers may attempt to disguise the assemblage through the use of straw purchasers. This paper employs administrative Geographic Information System and assessor data from Seattle, Washington, to identify lots that were ultimately assembled. The paper then matches them to their pre‑assembly sales. Controlling for lot and existing structure characteristics and census tract-year fixed effects, I find that land bought in the process of a successful assembly commands an 18 percent premium. Consistent with theory, this premium falls with a parcel's relative size in the assemblage. I also find some evidence that parcels toward the center of the development may command a larger premium than those at the edge, suggesting that developers retain or are perceived to retain some design flexibility.
Wednesday, April 8, 2015
A depressing story from CNNMoney that should raise the ire of our pet-owning readers:
California resident Gerilynn Aflleje was horrified when her 4-year-old Siberian Husky mix was killed by a local animal shelter over $180 in fees that she couldn't afford.
Her dog, Chunk, had been dropped off at the Stockton shelter after getting lost in 2013, she later explained at a city council meeting. When Aflleje discovered her dog there less than a week later, she said the shelter demanded $180 within 24 hours for storing Chunk.
Unemployed, Aflleje couldn't get the money in time. "We didn't only lose our pet. We lost a family member," she said.
In a number of cities across the country, animal control agencies are aggressively going after pet owners with big fines for small violations. Some hold people's pets until they settle their bills, even if it means they end up killed. Others leave the dogs alone but issue arrest warrants for owners who can't pay up.
(HT: Rebecca Tushnet)
Charity is big business. At present, it is estimated that Canada has more than 85,000 charitable organisations holding more than $55 billion in assets. In the United States, the numbers are even more staggering, where nearly 300,000 charities combine to control almost $3 trillion. The situation is the same in other Commonwealth countries, where massive amounts of money is held by private entities engaged in providing services designed to relieve poverty, advance education, promote religion or provide other benefits to the public.
Rather surprisingly, until recently, the organisation and activities of charitable foundations have largely escaped public notice or substantial government regulation. Indeed, it is somewhat surprising that with so much money moving about the voluntary sector governments have not been more aggressive in attempting to ascertain how that money is obtained and how it is spent. This is especially puzzling given the fact that one of the most important aspects of charitable organisations is that their income is generally tax free.
The past decade has seen a dramatic shift in governments' approach to the problems of the charitable sector. Legislators and policy-makers have begun to turn their attention to the activities of private sector charities with a view toward regulating their work and making their operations more transparent.
This conference will bring together scholars from around the common law world to consider both the normative and practical questions of regulating charities. It will discuss the future of charities law and develop both avenues for continuing research as well as concrete proposals for reform.
Judge Alison McKenna, Principal Judge, First-tier Tribunal (Charity)(England & Wales)
Participants include: Mary Synge (Cardiff), Matthew Harding (Melbourne), Adam Parachin (Western), Michael Lubetsky (Davies), Oonagh Breen (UCD), Mark Sidel (Wisconsin), Dana Brakeman Reiser (Brooklyn), Aline Grénon (Ottawa), Evelyn Brody (Chicago-Kent), Roger Colinvaux (Catholic), Debra Morris (Liverpool), Kathryn Chan (Victoria), Anne-Sophie Hulin (McGill), & Hubert Picarda QC
Aretha Chakraborti (Independent) & Katharina Pistor (Columbia) have posted The Cost of Exclusion: On the Dynamic Effects of Property Reforms in Post-1980 India on SSRN. Here's the abstract:
Property rights are widely considered foundational for economic development and prosperity. Clearly allocated property rights are said to create incentives for owners to invest in and internalize the costs associated with their assets. Inevitably, delineating and allocating property rights benefits some while excluding others. As Harold Demsetz recognized years ago, property rights promote the internalization of costs and benefits of ownership, but they also create externalities, including exclusion. Much of the literature ignores this exclusion and instead focuses on the efficient use of assets. In contrast, we investigate the effects of property rights on those excluded from land or housing placed into individual ownership. We use India as a case study. With its more than one billion people and substantial diversity among its 29 states, the country provides an excellent case for studying how property reforms introduced across the country since the early 1980s produced vastly different outcomes as they interacted with other pre-existing factors. We use descriptive statistics to demonstrate the dynamic effects of property reforms at the national and state levels. Close inspection of six states that deviate from national trends allows us to unpack factors of particular relevance in a given location. This factors identified in an inductive fashion can be used to analyze and predict the likely impact of property reforms in India and elsewhere. The framework also calls attention to the need for considering the cost of exclusion not only ex post, but also in ex-ante policy design.
Lua Yuille (Kansas) has posted A Property & Economic Approach to Street Gangs on SSRN. Here's the abstract:
This article offers a fresh analysis of and solution to problems modern, American street gangs present: Local governments should pay gang members to refrain from gang related activity. Common wisdom dictates that, since they commit crimes, gangs should be understood and combated criminologically, through criminal sanctions. Popular interventions, like gang injunctions, expand that punitive orientation into civil strategies. But, gang criminality is merely a manifestation of a broader property-based disease. Therefore, those strategies will be ineffective and inefficient, as evidenced by the continuing rise in gang membership across the United States.
The consensus in gang research is that gangs are not crime syndicates; they are capitalist social institutions creating and operating in alternative markets. Violence and criminality are secondary or tertiary facets of gangs, resulting from the inaccessibility of mainstream markets. Integrating these findings into a unique synthesis of disparate threads of property theory — from Charles Reich’s The New Property and Margaret Radin’s Property and Personhood to Cheryl Harris’s Whiteness as Property — it is clear that gangs’ primary purpose is to pursue the forms of property central to human identity. That insight frees anti-gang strategies from the strictures imposed by criminal law, but reveals social justice considerations not normally associated with gangs.
On that basis, the article presents a novel idea: Gangs are recreating a traditional market-based property system, so the approach to the problems associated with them should be market-inspired. In the market, actors are paid to induce desired behavior. Therefore, local governments should compensate gang members for non-participation in legal (but undesirable) gang activity. The article tests this proposal using Calabresi and Melamed’s framework for allocating and protecting entitlements advanced in Property Rules, Liability Rules, and Inalienability Rules: One View of the Cathedral. That analysis shows that the so-called “paid injunction” is a more effective and efficient approach to curbing the non-criminal activities of gangs that simultaneously advances the social justice concerns revealed by the property law analysis.
Friday, April 3, 2015
The drought there is forcing a serious rethink about how to deal with water rights. Things are about to get more intense for California's farmers (who use 80 percent of the state's water):
So what's in Governor Brown's mandate for farmers? Basically, a lot of number-crunching. Agricultural water users will be required to report in greater detail their water-use information to state regulators. Large agricultural suppliers are also changed with developing water-management plans, due in July 2016.
Data reporting probably sounds a little lax as a mandate, compared to the drastic cuts that urban areas are expected to make. Some are already disappointed. "The Governor must save our groundwater from depletion by directing the State Water Board to protect groundwater as a public resource," Adam Scow, Director of Food & Water Watch California, said in a statement.
There's no question that legislators and farmers can do more to cut back on agricultural water use intelligently, such as fostering a stronger water market and, indeed, strengthening groundwater regulation.
Yet Brown's task for farmers is an important step, because it recognizes how poorly the state manages agricultural water allocations. California has a notoriously byzantine approach, with laws dating back to the 19th century that allow water rights to the families who originally staked claims on rivers and streams. Those senior and riparian rights holders—almost entirely held by agricultural and corporate entities, according to the AP—continue to report their water use on what's basically an honor system, with information that's riddled with inaccuracy and often out of date.
Brian Sawers has posted Original Misunderstandings: The Implications of Misreading History in Jones (Georgia State Law Review) on SSRN. Here's the abstract:
This article shines light on a little-noticed but important error in United States v. Jones, the recent Supreme Court Fourth Amendment decision. In Jones, the majority opinion and Justice Alito’s concurrence quibble whether the majority applies “18th-century tort law” in holding that the government’s trespass constitutes a search. Both opinions mistakenly assert that any unwanted intrusion on private property was actionable at common law. While true in England, the American law of trespass provided no remedy for unwanted intrusions to unfenced land.
Current Supreme Court Fourth Amendment jurisprudence recognizes the open fields doctrine, which allows the government to search open land without a warrant. There is little indication now that the Supreme Court wants to overrule the doctrine, so the Justices’ nonchalant approach to history might not change the scope of the Fourth Amendment. But the error could have a serious impact on property law. In recent years, the Supreme Court has exhibited a healthy appetite to both expanding the regulatory takings doctrine and imposing a judicial takings doctrine based on historical nonsense.
Yuk-Shing Cheng (Hong Kong Baptist University) & Kim-Sau Chung (The Chinese University of Hong Kong) have posted Designing Property Rights of Land in Rural China on SSRN. Here's the abstract:
This paper takes the special features of land seriously, and study the efficient design of its property rights against the backdrop of social security. In particular, we explain why (i) tenure insecurity and (ii) restrictions on the right to transfer, two features that are often frown upon by economists, can play a positive role in an efficient design of property rights of land in rural China. Our model does reasonably well in matching the variation (across both time and regions) of China’s rural land system: tenure is more insecure and restrictions on the right to transfer more severe in inland regions (vis-a-vis coastal regions) and at earlier stages of the reform.
Wednesday, April 1, 2015
The Center for American Progress just released a report detailing how the nation's cultural and ethnic diversity is reflected in our national monuments and landmarks. Many minority groups are underrepresented:
A summary of the findings:
After analyzing the information we collected about the 460 national park units and monuments, we determined that 112 of them—24 percent—have a primary purpose of recognizing the historic figures, cultures, or important events of traditionally underrepresented communities.
As seen in the chart above, 63 of these 112 units have a primary focus on American Indians or Alaska Natives, 26 on African Americans, 19 on Latinos, 8 on women, 6 on Native Hawaiians, and 2 on Asian Americans. Notably, none are dedicated to the history of or historic figures in the LGBT community.
It is also worth noting that many of the sites that invoke the histories of underrepresented communities, such as the Little Bighorn Battlefield National Monument, have traditionally done so from the perspective of the U.S. government. It is only in recent years that the interpretation of several of these sites, including Little Bighorn, has become more inclusive and reflective of the historical record due to improvements in the NPS’s interpretive programs.
In honor of the beginning of the month here are the most downloaded Property articles on SSRN over the last 60 days:
1. [486 downloads] The Mainstreaming of Libertarian Constitutionalism
David Bernstein (George Mason) & Ilya Somin (George Mason)
2. [266 downloads] The Transfer of Public Lands Movement: Taking the 'Public' Out of Public Lands
Robert B. Keiter (Utah) & John Ruple (Utah)
3. [194 downloads] Fraudulent Income Overstatement on Mortgage Applications During the Credit Expansion of 2002 to 2005
Atif R. Mian (Princeton – Econ) & Amir Sufi (Chicago – Business)
4. [154 downloads] Regulating Against Bubbles: How Mortgage Regulation Can Keep Main Street and Wall Street Safe - from Themselves
Ryan Bubb (NYU) & Prasad Krishnamurthy (Berkeley)
5. [134 downloads] The Property-Tort Divide, Human Flourishing and a New Case Study of Surface Water Liability
Jill Fraley (Washington & Lee)
6. [133 downloads] Contemporary Land Grabbing, Research, and Bibliography
Jootaek Lee (Northeastern)
7. [127 downloads] First Principles for Regulating the Sharing Economy
Stephen R. Miller (Idaho)
10. [87 downloads] Regulating the Underground: Secret Supper Clubs, Pop-Up Restaurants, and the Role of Law
Sarah Schindler (Maine)
Tuesday, March 31, 2015
Robin Malloy (Syracuse) has posted Inclusion by Design, Thinking Beyond a Civil Rights Paradigm - Land Use Law and Disability: Planning and Zoning for Accessible Communities (Book Chapter) on SSRN. Here's the abstract:
In Land Use Law and Disability: Planning and Zoning for Accessible Communities (Cambridge University Press 2015), I argue that our communities need better planning to be safely and easily navigated by people with mobility impairment and to facilitate intergenerational aging in place. To achieve this, communities will need to think of mobility impairment and accessible design as land use and planning issues, in addition to understanding them as matters of civil and constitutional rights. Although much has been written about the rights of people with disabilities, little has been said about the interplay between disability and land use regulation. This book undertakes to explain mobility impairment, as one type of disability, in terms of planning and zoning. This involves examining disability in relation to the police power. Coverage goes beyond matters of universal design and focuses on the special legal requirements for planning and zoning when disability is raised; including the requirements for regulating use, special use permits, variances, and accessory uses. Much like situations involving a tension between zoning and the First Amendment, the standards of review when zoning collides with the ADA (Americans with Disability Act) require additional considerations in order to be legally upheld. The goal of the book is to advance our understanding of disability in terms of planning and zoning and to thereby facilitate cooperative engagement between disability rights advocates and land use professionals. Chapter one of the book, titled “Inclusion by Design: Thinking Beyond a Civil Rights Paradigm,” is attached with permission of Cambridge University Press and of the author.
Monday, March 30, 2015
Politico explains how the seats in the White House Press Room are divvied up and outlines some recent changes to the seating chart:
Most of the 49 spots remain unchanged. The biggest differences are that BuzzFeed and Al Jazeera now have partial seats (they're sharing them with other news organizations) and The Hill has moved up one row.
The reorganization also changed the desk and booth assignments behind the scenes. Both types of slots - briefing room and desks - are allocated based off several factors, including tenure, who actually shows up to the briefings, and the audience of the publication (hence why the TV and wire services have the front row). If an organization doesn't show up to the briefings every day, they're less likely to keep their seat.
Reuter's Jeff Mason, who ran the review, said in a statement the changes came after a months-long process.
"The review took months to complete and was approved unanimously by the WHCA board after careful consultation with and input from all of the affected organizations. We’re confident that we’ve made gentle adjustments that give designated spots to the reporters who use them most," Mason said. "The board reviews press seating and work space on a regular basis. Members of the media are welcome to cover the briefing or work from the White House press area, designated seat or not. We continue to fight for press access for everyone who wishes to cover the White House at the regular briefings and beyond."
Tulane Law School recently hosted an impressive-looking property roundtable. Organized by Sally Richardson, the Roundtable sought to "bring together property scholars from around the country to discuss and debate important property issues pertaining to the regulation of private and public property rights. The roundtable showcases the works-in-progress of the participating scholars and encourages lively debate regarding the drafts." The event attracted a great mix of junior and senior scholars, including Eric Freyfogle, Avi Bell, and Lee Fennell. You can see the full list of participants and the papers here.
Shai Stern (Bar Ilan) has posted Takings, Community and Value: Reforming Takings Law to Fairly Compensate Common Interest Communities (Brooklyn Journal of Law and Policy) on SSRN. Here's the abstract:
Thursday, March 26, 2015
The ABA section of Real Property, Trust, and Estate Law announces its annual student writing competition. Here are the details:
Goals: The goal of the American Bar Association (ABA) Real Property, Trust and Estate Law Student Writing Contest (Contest) is to encourage and reward l aw student writings on real property, trust and estate law subjects of general and current interest. As part of this effort, the ABA will sponsor the Contest, which invites law school students to submit to the ABA Section of Real Property, Trust and Estate Law (Section), original essays on a current topic dealing with real property, trust and estate law. The essay contest is designed to attract students to the real property, trust and estate law field, and to strongly encourage scholarships in these areas.
Who May Enter: Open to any law school student in good standing, over the age of 18, who is currently attending an ABA - accredited law school within the United States and its possessions, and who is a citizen or legal permanent resident of the United States. Officers, employees, and agents of the ABA and their immediate family or household members are not eligible to enter or win.
Deadline: Entries must be received by t he Section no later than June 30 , 2015
Specifications: Essays must be submitted electronically, as an attachment to an email message to firstname.lastname@example.org with the subject line, “ Writing Contest Entry ”, formatted for standard, 8 - 1/2 x 11 inch paper, double spaced, sent in PDF format. All margins must be one-inch. Essays must not exceed 50 pages of double - spaced typed text, including footnotes. Only one essay is to be submitted for each entrant. PLEASE NOTE: The entrant’s name is not to be on any page of the submitted essay. Entrants should write essays in traditional law review style, presenting a scholarly discussion with full citation to authority in footnotes. Lengthy lists and outlines normally are not appropriate within the text of an essay; however, they may be included as appendices to a textual discussion. For example, if the law of all states on a subject is surveyed, the essay may compare analytically how and why the law differs between jurisdictions. A listing of the law by jurisdiction within the body of the essay would generally not be appropriate. If such a listing of the law by jurisdiction would be of particular value to the reader, it may be included in an appendix to the essay. Entrants should write essays in the active voice and in the third person. Essays should conform to The Bluebook - A Uniform System of Citation and to the Texas Law Review Manual on Style .
For more information, please contact Monica Larys at email@example.com.
Ezra Rosser (American) has posted Destabilizing Property (Connecticut Law Review) on SSRN. Here's the abstract:
Property theory has entered into uncertain times. Conservative and progressive scholars are fiercely contesting everything it seems, from what is at the core of property to what obligations owners owe society. Fundamentally, the debate is about whether property law works. Conservatives believe that property law works. Progressives believe property could and should work, though it needs to be made more inclusive. While there have been numerous responses to the conservative emphasis on exclusion, this Article begins by addressing a related line of argument, the recent attacks information theorists have made on the bundle of rights conception of property. The Article goes on to make two main contributions to the literature. It gives a new critique of progressive property and, more fundamentally, shows how distribution challenges in property call for a third path forward. Conservative scholarship is scholarship for property, defending traditional views of property against the influence of new realist-inspired deconstruction. Progressive scholarship works with property, showing how doctrine supports expanding property law to reach those who would otherwise be excluded. But missing from this debate is the possibility that, instead of working for or with property, the rise in inequality and the calcification of advantages defined at birth of the current economic and legal environment calls for work against property. Expanding the range of answers to the broad questions being asked of property to include deliberately destabilizing property would add to the academic debate and to the possible policy responses to the emerging threat of oligarchy. Working for, with, and against property are all answers to the question of how to respond to the property crisis of our time, the problem of inequality. This Article seeks to give some content to the neglected against portion of the spectrum.