Wednesday, August 12, 2015
Blake Hudson (LSU) has posted Realigning Metrics of Economic Well-Being in Residential and Commercial Development Through Sustainable Land Use Planning (Washburn Law Journal) on SSRN. Here's the abstract:
This brief essay assesses the key role that environmental conservation plays in achieving stability in housing markets. The essay reiterates the many calls for a shift away from metrics of economic growth — like Gross Domestic Product and New Home Starts — that are currently fundamentally at odds with the protection of global natural capital, and that in particular threaten the non-renewable land base. The essay argues that while work should continue to change the ex-post metrics that we utilize to determine economic well-being within nations, the ex-ante use of more stringent land use regulatory controls can actually obviate the urgency to adjust those metrics by decoupling the replacement of natural capital from metrics of economic growth.
Monday, August 10, 2015
Hilary Young (New Brunswick) has posted The Right to Posthumous Bodily Integrity and Implications of Whether it is a Right of the Dead or of the Living on SSRN. Here's the abstract:
This article examines laws that allow people to decide what will happen to their bodies after death, referred to as laws protecting posthumous bodily integrity. It asks whose rights they intend to protect: the rights-holders could consist only of living individuals whose bodies will become the corpses at issue or could include the dead themselves. Whether rights to posthumous bodily integrity belong only to the living or survive death leads to three types of insight. First, the reasons for protecting posthumous bodily integrity are different depending on who the rights-bearers are. Second, to the extent that some laws are more consistent with an approach that views the dead as rights-holders versus only the living (or vice versa), this may help elucidate why we protect posthumous bodily integrity. Third, if one has an opinion about whether the dead are capable of having rights, this has implications for how one thinks laws protecting posthumous bodily integrity should be structured. For example, the article proposes a revision to anatomical gift legislation that is more easily justified than current legislation if one views the dead as incapable of having rights.
Ann Carpenter (Federal Reserve Bank of Atlanta) has posted Resilience in Planning: A Review of Comprehensive Plans in Mississippi after Hurricane Katrina on SSRN. Here's the abstract:
This paper analyzes and compares the decisions communities made in rebuilding after Hurricane Katrina in 2005 to determine to what extent post-Katrina comprehensive plans promote resilience based on built environment factors that have been shown to improve social networking, physical safety, and community building. Levels of recovery are also examined, measured by the current numbers of occupied housing units in each community compared with pre-Katrina numbers. After Katrina, multiple planning documents were produced by a variety of organizations. Mississippi state statute requires each municipality to have a long-range comprehensive plan adopted by the local governing body. Plans establish goals over a 20- to 25-year period of development and are required to address residential, commercial, and industrial development; parks, open space, and recreation; street and road improvements; and public schools and community facilities. To capture the most significant interests and values, the overarching goals and vision statements of post-Katrina plans were compared and analyzed. Plans from four Mississippi communities affected by Hurricane Katrinaâ€”Biloxi, Ocean Springs, Pascagoula, and Wavelandâ€”indicate that communities in the region understand many of the present strengths and weaknesses with respect to disaster resilience and have outlined a strategy to mitigate damage, reduce vulnerability, and create support networks to speed up recovery for a future disaster on the scale of Katrina. Like any plan, how and to what extent these ideals are implemented is a concern. During interviews in these communities, recurring concerns were public participation and, at the least, attention to the needs of residents in the planning process.
Friday, August 7, 2015
Nationwide, spending on homeless vets is up 300 percent since President Obama took office, hitting near $1.5 billion last year. That tracks with a reduction in homeless vets by about a third.
We've been able to house more vets in the last five years than at any point in our history ... 30-plus years," Vince Kane, special assistant to the VA secretary, says of the agency's housing programs. "In the past, both inside and outside of VA, we were focused on models more about managing homeless than on ending homelessness," Kane says.
Part of that shift is to embrace a philosophy called "housing first." "It's about getting guys in housing first and then treating whatever ails them afterwards," says Kevin Kincey, who does outreach for the group U.S. Vets in Los Angeles. "Back in 2005, to come into a program ... you needed to be sober," Kincey says. "[Now] once you get in housing, if you need substance abuse treatment, mental health treatment, they'll wrap that around you."
Thomas Simmons (South Dakota) has posted Medicaid as Coverture (Hastings Women's Law Journal) on SSRN. Here's the abstract:
Antiquated views of women’s property rights and the status conferred by a marital relationship deprived a woman of separate property rights, treated the spouses as one unit incapable of contracting with one another, and transferred liability for one spouse’s debts to the other. These archaic, even offensive laws were largely repealed in the mid-nineteenth century. Today, women expect to enjoy a legal existence that is not consumed by the status of marriage, and to exercise property rights largely free from interference or paternalism. An examination of Medicaid eligibility rules reveals the retention and even reinstatement of the legal fiction of spousal unity. On account of the substantial risk of wealth loss to nursing home costs, Medicaid eligibility rules represent a disquieting view of married women’s separate property rights.
Michael Blumm (Lewis & Clark) has posted Reserved Water Rights as a Rule of Law (Idaho Law Review) on SSRN. Here's the abstract:
The reserved water rights doctrine is — and always has been — a controversial doctrine in Western water law circles because it provides a federal trump over state systems of water allocation. First articulated by the U.S. Supreme Court over a century ago, states and their water rights holders have always resisted implementation of federal water rights because the federal government and its trustee Indian tribes often have different water priorities than the states, long committed to diversionary rights largely for irrigated agriculture.
In Idaho, opposition to federal water rights largely succeeded in defeating water for wilderness, national forests, national recreational areas, and other federal conservation lands in the decisions by state courts in the massive Snake River Basin Adjudication (SRBA). Now, in an Idaho Law Review article, two advocates for state water rights who helped defeat federal water rights in the SRBA proffer a theory that, if accepted by other Western states, would export their Idaho victories.
This response to their effort explains why their theory is flawed and should be rejected by Western state courts. Their argument was in fact not adopted by the Idaho Supreme Court, which employed other reasoning for rejecting federal reserved water rights. This essay maintains that, although Congress certainly has the power either to affirm or reject water rights for federal lands, the idea that water rights may be lost by mere congressional discussion of the doctrine followed by a decision not to take action cannot be interpreted as a rejection of a legal doctrine over a century old. There is no support for interpreting congressional inaction to reverse a long settled legal doctrine like federal reserved water rights — and the costs imposed on federal interests, especially in terms of instream flows, would be significant.
Thursday, August 6, 2015
Amanda Ashley (Boise State) & Michael Touchton (Boise State) have posted Reconceiving Military Base Redevelopment: Land Use on Mothballed U.S. Bases (Urban Affairs Review) on SSRN. Here's the abstract:
The U.S. Department of Defense has closed 128 domestic bases over the last 30 years through the Base Realignment and Closure Process. Current scholarship describes this process and provides snapshots of transition, yet there is very little systematic knowledge of what follows base closure. We introduce an original data set chronicling military base redevelopment and present evidence suggesting that the variation in the built environment on former military bases stems from considerations somewhat unique to military redevelopment, particularly the presence of federal funding, contamination of redevelopment parcels, and economic output in the surrounding county. Our arguments offer new directions for redevelopment scholarship and a first step for developing best practices to help cities redevelop mothballed bases.
Wednesday, August 5, 2015
Landlords will face £3,000 penalties for failing to monitor the immigration status of their tenants or lodgers, as part of “right to rent” requirements that will apply across England within months.
A trial of “right to rent”, introduced in the West Midlands in December, has resulted in one fine being issued to a landlord, who is appealing the near-£2,000 sum, according to sources.
Landlords and letting agents in the West Midlands – including Birmingham, Wolverhampton, Walsall and Dudley – must already check the nationality and visa status of their tenants. Penalties are issued per tenant who is living in a property who has no right to rent.
Critics fear the legislation, which is expected to be rolled out to the rest of England in September, places an “unfair burden” on landlords who may lack the knowledge or skills to check if their tenants are allowed to live in Britain.
Hannah Wiseman (Florida State) has posted Written Testimony for 'The Future of Hydraulic Fracturing on Federally Managed Lands' (Congressional Testimony) on SSRN. Here's the abstract:
The Bureau of Land Management's rule for hydraulic fracturing on federal lands ("Oil and Gas; Hydraulic Fracturing on Federal Indian Lands," or the "HF Rule"), issued in March 2015 after two drafts and extensive comment, takes a modest approach to regulating some of the impacts of oil and gas development on these lands. It requires, inter alia, more testing of wells to ensure that they were properly lined ("cased") and cemented and remedial action where cementing was inadequate; testing of the wells to ensure well integrity prior to hydraulic fracturing; storage of fracturing flowback waste in tanks rather than pits, with exceptions; and disclosure of the fracturing chemicals and water sources used, among other disclosures. The rule, which primarily requires information disclosure and not substantive operational changes, falls squarely within BLM's statutory authority under the agency's organic act, the Federal Land Policy and Management Act, and under the Mineral Leasing Act, among other acts. FLPMA directs BLM to manage public lands and resources for multi-use development, including "a combination of balanced and diverse resource uses," and it is an express policy of Congress to protect "water resource . . . values" on federal lands under FLPMA. Further, the MLA directs BLM to regulate "in the interest of conservation of surface resources" and prohibits the waste of oil and gas resources. Under these acts, regulations issued by BLM's predecessors in 1920 required operators to submit information on the kind, length, and size of well casing used and to correct conditions causing damage to other oil and gas and water-bearing formations. Similarly, a 1942 regulation allowed BLM's predecessor to require operators to notify USGS of a plan prior to well stimulation (including prior to the injection of water and other substances into the well) and to require operator submittal of a casing program. Casing and cementing protect both surface and underground water and avoid waste of oil and gas if installed properly, and flowback tanks help prevent spills of fracturing waste, thus protecting surface soil and water and underground water resources that could be impacted by wastes seeping through soil.
Further, other federal statutes do not preclude BLM from regulating oil and gas development and fracturing under FLPMA, the MLA, and other acts. The Safe Drinking Water Act exempts non-diesel fracturing from SDWA regulation only "[f]or purposes of this part," and the legislative history expressly states that Congress did not "intend any of the provisions of this bill [the SDWA] to repeal or limit any authority" of BLM's predecessor. BLM does not base its authority to regulate oil and gas development or fracturing on the SDWA, relying instead on its responsibilities under FLPMA, the MLA, and other acts. Contrary to suggestions made in North Dakota's and Utah's challenges to the HF Rule, nor do the states rely on their SDWA regulatory primacy when they regulate the drilling and fracturing of oil and gas wells. States rely on SDWA authority only to regulate disposal wells, and they rely on police powers/public welfare authority to regulate drilling and fracturing. The HF Rule does not impact states' regulatory primacy under the SDWA to regulate underground injection wells for the disposal of oil and gas wastes, and it does nothing to prevent states from regulating oil and gas drilling and fracturing more stringently than the HF Rule "floor." Finally, the HF Rule is more stringent than many state regulations -- most western states do not require tanks for the storage of flowback, for example -- and where it is less stringent than state regulations, states remain free to regulate above the federal BLM floor without having to receive a variance or any other permission from BLM. Despite the seemingly modest nature of the rule and the apparently strong statutory support for the rule, the United States District Court for the District of Wyoming postponed the effective date of the rule pending the court's ruling on states' and industry's motions for preliminary injunction. The Southern Ute Indian Tribe has also filed a complaint.
Amanda Reid (Florida Coastal) has posted Place, Meaning, and the Visual Argument of the Roadside Cross (Savannah Law Review) on SSRN. Here's the abstract:
Roadside memorials are cenotaphic in so far as they honor a person whose corporeal remains lie elsewhere. They powerfully express the pathos of loss felt by the bereaved. These memorials are part of a global phenomenon where kith and kin create spontaneous shrines to deceased loved ones. And they are intensely personal, idiosyncratic expressions of loss and remembrance.
Death and grieving have escaped the socially acceptable zone of the cemetery and are now confronting others as they go about their daily lives — commuting along our nation’s roadways. Part I examines how some bereaved are sanctifying public spaces by erecting private memorials. These memorials are places of remembrance, of pilgrimage, and of warning. They are heterotopic sites that simultaneously seek to keep a relationship with the deceased alive and to bring healing and closure to the grieving process.
Yet this use of public space for private grief is not without contest. These private memorials, which often employ sectarian symbols, can create unwanted vicarious trauma, traffic safety hazards, and Establishment Clause concerns, which are discussed in Part II. Part III explores the visual argument of ventilating private grief on public spaces. Roadside crosses are a means to resist the erasure of a loved one. Individually, the crosses make the visual argument that the deceased was valuable, and he is missed. Collectively, the phenomenon is a critique of modern transportation, modern culture, modern death practices, and modern religion.
But by allowing these crosses to remain and proliferate along the roadside, is there a mixed message sent on behalf of both the memorial maker and the government? Part IV reviews current Establishment Clause jurisprudence relevant to roadside crosses. And Part V addresses the rhetorical effect of the Latin cross and Establishment Clause concerns to religious outsiders. The unresolved question is what the reasonably well-informed observer concludes. This Article provides background and context to inform the hypothetical Establishment Clause observer.
Tuesday, August 4, 2015
The Washington Post has a great story on the end of a profoundly complicated border problem between India and Bangladesh:
An agreement for a land swap was reached in 1974, but India did not ratify it. In 2011, however, a new agreement was reached, which, after some stalling, was finally ratified in June. The enclaves will become territory of the states that surround them and the citizens who live within them will get to decide whether they want to stay put and accept new citizenship, or whether they want to keep their original citizenship and be relocated.
Problem solved for the people of Dahala Khagrabari? Not exactly. Some exclave residents say that they were left out of government surveys and worry they will not be able to choose their citizenship or keep their land. Some families within Dahala Khagrabari are being split as they choose different citizenships. Technically, one the world's strangest border disputes may be solved, but on the ground it is likely to be far more complicated.
Monday, August 3, 2015
Ugh. I've just received the gutting news that Marc Poirier has passed away. Marc was a stalwart of the property community: creative, involved, generous with his time, and extremely kind to young scholars. He will be missed.
Thanks to Ezra Rosser for passing along the news.
In honor of the beginning of the month, here are the most downloaded property articles on SSRN over the last 60 days:
1. [170 downloads] Banks, Break-Ins, and Bad Actors in Mortgage Foreclosure
Christopher K. Odinet (Southern)
2. [163 downloads] Water Rights, Water Quality, and Regulatory Jurisdiction in Indian Country
Robert T. Anderson (Washington)
5. [107 downloads] The Lost 'Effects' of the Fourth Amendment: Giving Personal Property Due Protection
Maureen E. Brady (Yale)
6. [96 downloads] The Digital Legacy Conundrum: Who Really Owns What?
Craig Dickson (Auckland U. of Tech.)
Friday, July 31, 2015
An Ohio couple is fighting with their local government over whether they can keep their lawn unmowed. They appear to have a pretty good case:
The township doesn’t actually have a specific ordinance that the Ohio couple are violating, reports say. The township’s zoning inspector says that he can have a landscaping company come onto the couple’s yard and mow it at the couple’s expense under a very broad and nonspecific nuisance ordinance. The township trustees claim that the couple’s yard is a risk to the community’s health, welfare and safety. According to The Columbus Dispatch, neighbors have never even complained.
“We’re a land of laws,” Trustee Randal Almendinger told the couple. “We have to adhere to them, too. We have to do what we’re told to do.”
Almendinger says that the law is to eradicate whatever the township trustees decide is a nuisance, and since the laws don’t define what constitutes a nuisance, The Columbia Dispatch reported, “The trustees said their only recourse is to rely on the wisdom of their longtime zoning inspector, Tom Frederick.”
Slate has a handy calculator to help you figure it out. Some background on their definition of gentrification:
Most experts consider a neighborhood to be gentrifiable if its incomes are in the bottom half or quarter of the income distribution of a metropolitan area, she explained in an email to Slate. If the incomes of such a neighborhood are rising faster than incomes citywide, the area is undergoing gentrification. Some researchers have traced changes in educational or racial demographics as proxies for gentrification. For the purposes of this calculator, Ellen suggested this formula: If your neighborhood’s median income is lower than the median income of your city, and your income is higher than your city’s median, you’re a gentrifier.
Rigel Oliveri (Missouri) has posted Setting the Stage for Ferguson: Housing Discrimination and Segregation in St. Louis (Missouri Law Review) on SSRN. Here's the abstract:
The events of fall 2014 in Ferguson, MO (the shooting death of Michael Brown by a white police officer and the subsequent protests and riots), have been examined from many angles – the policing of minority communities, the militarized police response to peaceful protests, the poor schools and job prospects for young people like Mr. Brown, etc… This paper adds another factor to the analysis: housing discrimination.
St. Louis is one of the most segregated places in the country and this is not an accident. The history of St. Louis is replete with discriminatory housing laws, policies, and practices. While these were common throughout the United States, they were particularly egregious, widespread, and pervasive in industrial mid-western cities like St. Louis. St. Louis, in fact, was where three of fair housing law’s most foundational fair housing cases emerged from: Shelly v. Kraemer, which held that racially restrictive covenants could not be enforced by courts; Jones v. Mayer, which held that private acts of race discrimination in housing were prohibited by the Civil Rights Act; and United States v. City of Black Jack, which recognized the use of disparate impact theory in fair housing cases. When we look closely at these cases – not just the legal principles that they established but the physical, racial geography of the homes, neighborhoods, and cities that were contested – we can see how they reflected the racist forces that shaped the reality of modern metropolitan St. Louis.
This paper traces the history of housing discrimination in the St. Louis metro area using these cases as a framework, concluding with a discussion of how these historical forces resonate in contemporary Ferguson. The paper concludes with suggestions for reforms that might help undo what a century’s worth of officially sanctioned discrimination and segregation have wrought.
Wednesday, July 29, 2015
From the Atlantic Cities Blog:
Today, the Vatican welcomes more than 60 mayors from around the world. The eclectic agenda covers mayoral efforts to combat climate change as well as modern forms of slavery. Many of the mayors will stay the next day for a second conversation about how cities fit into the world’s new Sustainable Development Goals meant to guide development work around the globe for the next 15 years.
The mayors will see a Vatican that—even before Francis—has been quietly putting together a record of urban innovation. The initiatives are happening partially within the walls of the tiny city-state itself. But they’re also happening across the broader metropolitan area of Rome, where the Pope heads the local diocese of the Catholic Church, and where the Vatican holds a unique spiritual, political, and economic influence over local affairs.