Wednesday, July 8, 2015
Robert Anderson (Washington) has posted Water Rights, Water Quality, and Regulatory Jurisdiction in Indian Country (Stanford Environmental Law Journal) on SSRN. Here's the abstract:
In the seminal Indian water rights case, Winters v. United States (1908), the Court posed this question: “The Indians had command of the lands and the waters—command of all their beneficial use, whether kept for hunting, ‘and grazing roving herds of stock,’ or turned to agriculture and the arts of civilization. Did they give up all this?” The Court’s answer was no, and since then a large body of law has developed around Indian water rights, although the primary focus has been on the amount of water reserved for various tribal purposes. While Indian nations use property rights theories to protect their water resources from loss to non-Indian use, they also deploy their inherent governmental authority through tribal water codes and the federal Clean Water Act to protect water quality. As competition for water resources grows and development pressures adversely affect water quality, Indian Nations and their neighbors face new challenges in defining Indian water rights for instream habitat protection and traditional consumptive uses.
This article reviews the nature of Indian water rights — both on and off reservations — and the use of tribal sovereignty to protect those rights in terms of quantity and quality. The case law in this arena is sparse, and the ability to predict an all-or-nothing litigated outcome is correspondingly limited. Under these circumstances, parties would be best off to default to the usual presumptions recognizing inherent tribal authority over on-reservation water resources and state authority outside of Indian country. From this jurisdictional baseline, tribes, states and the United States should cooperate to ensure that a given regulatory regime protects water quality and access to water.
Jim Kelly (Notre Dame) has posted Sustaining Neighborhoods of Choice: From Land Bank(ing) to Land Trust(ing) (Washburn Law Journal) on SSRN. Here's the abstract:
This essay is based on my closing presentation at the Washburn Law Journal's 2015 symposium entitled "The Future of Housing -- Equity, Stability and Sustainability." It explores how land banks and land trusts promote social goods, including socioeconomic integration, by connecting with and shielding against, respectively, market forces. Both engage in stewardship of land. Land banks take temporary ownership of vacant, abandoned properties in order to make them available for productive use. Land trusts hold land indefinitely to ensure a social purpose is met. Community land trusts hold land for a purpose that is responsive to the human environment, often permanently affordable housing in areas where affordable housing is rare to nonexistent. Land banks encourage people with choices to move into neighborhoods beset by abandonment and poverty. Community land trusts allow lower-income residents to become long-term members of neighborhoods otherwise inaccessible to them. Land banks reduce transaction costs to get the market moving. Land trusts increase transaction costs in order to protect affordable housing and other public goods against elimination by market-driven transfers.
The use by these two publicly minded real estate market interventions of opposing tools in starkly different types of neighborhoods raises the following questions: First, do they meet somewhere in the middle? Second, does sustaining neighborhoods of choice hinge on the handoff of some critical mass of real property from land banks to land trusts? The answers to these both questions are negative, if we focus our attention solely on the work done directly by land banks and land trusts. The neighborhoods that warrant the housing stewardship activity of land trusts are just too different from those needing the help of land banks to talk of a continuum of care between the two poles of community land resource control. But, if land banking and its conceptual counterpart, “land trusting”, are thought of more broadly as the strategic adjustment of transaction costs for the promotion of social goods, such as residential socioeconomic integration, then an array of intermediate possibilities present themselves.
The essay begins with a brief examination of the importance of residential socioeconomic integration and how it might be advanced appropriately. After looking at some misconceptions about the market’s role in segregating neighborhoods by class, I then explore how land banks and land trusts intervene to move neighborhoods toward a healthy diversity. The essay concludes with a discussion of land banking and, particularly, land trusting as alternatives to formal stewardship that nevertheless also foster the needed diversity of housing types, land tenure types, and ultimately, resident socioeconomic status to sustain neighborhoods of choice.
Tuesday, July 7, 2015
Peter Apps explains how breaking his neck changed his view of urban form:
If I've learned one thing in the nine years since I broke my neck, it's that the world is not particularly well designed for disabled people. Sometimes the things that stop you doing stuff and getting places (or, indeed, the things that enable you to do them) are very small. Sometimes they are massive.
What they all do, though, is completely redraw the map of the world you can reach.
Yun-chien Chang (Academia Sinica) has posted Introduction to 'Law and Economics of Possession' (Book Chapter - Cambridge Press) on SSRN. Here's the abstract:
Possession is a key concept in both the common and civil law, but it has hitherto received little scrutiny. Law and Economics of Possession uses insights from economics, psychology and history to analyse possession in law, compare and contrast possession with ownership, break down the elements of possession as a fact and as a right, challenge the adage that 'possession is 9/10 of the law', examine possession as notice, explain the heuristics of possession, debunk the behavioural studies which confuse possession with ownership, explore the LightSquared dispute from the perspective of 'possession' of spectrum frequency and provide new insights to old questions such as first possession, adverse possession and property jurisdiction. The authors include leading property scholars, who examine possession laws in, among others, the USA, UK, China, Taiwan, Japan, Germany, France, Israel, the Netherlands, Spain, Portugal, Italy, Austria.
Brad Jessup (Melbourne) has posted Environmental Justice as Spatial and Scalar Justice: A Regional Waste Facility or a Local Rubbish Dump Out of Place? (McGill International Journal of Sustainable Development Law & Policy) on SSRN. Here's the abstract:
This paper explains and explores how a controversial waste development in the rural town of Molong, Australia was approved under the maligned, and since repealed, Part 3A of the New South Wales (“NSW”) Environmental Planning and Assessment Act 1979. It adopts a legal geography approach to demonstrate how the activation of the planning law both dramatically shifted political and legal power from the community to the government and proponent, and altered the scale of environmental concern from the local to the regional. The law, and in particular, the imposed geographic scale, undermined the argumentative position, place creation and imagination of the community group opposing the development. It allowed centralized decision making to disregard the environmental effects of the project that were acknowledged by the NSW Land and Environment Court in the case Hub Action Group v. Minister for Planning. It illustrates the entrenched power imbalance in state-significant development laws. The inquiry uncovers spatial and scalar injustices, which are presented as being a component of the concept of environmental justice, with that concept reinterpreted in light of recent scholarship that rethinks the meaning of space. In this respect the paper extends the boundary of, and the community for, environmental justice.
Friday, July 3, 2015
ABA Journal of Affordable Housing & Community Development Law
Call for papers
The Journal of Affordable Housing & Community Development Law invites submissions for its next issue (Volume 24:2). We are seeking articles on racial justice as it relates to affordable housing or community and economic development. We encourage a broad range of submissions on this topic, which could range from discussion of the implications of siting low income housing tax credit developments in areas of high (or low) concentrated poverty to articles that consider the relationship between local government boundaries and community development initiatives. Submissions on topics other than racial justice are encouraged and will be considered for publication in future issues.
Interested authors should send a one- to two-paragraph abstract describing their proposals to the Journal’s new Editor–in-Chief, Laurie Hauber, at the email address below.
The Journal welcomes articles (typically 7,000-10,000 words (30–50 pages) as well as essays (usually 4,500–7,500 words (20–40 pages) from practitioners, academics, and students. Submissions of final articles and essays for Volume 24:2 issue should be made by September 1, 2015.
Please do not hesitate to contact any of us with questions:
Laurie Hauber, Editor–in-Chief , LJHauber@lsem.org
Laura Schwarz, Co-Editor, Lschwarz@renocavanaugh.com
Brandon Weiss, Co-Editor, email@example.com
In honor of the beginning of the month, here are the most downloaded Property articles on SSRN over the last 60 days:
1. [259 downloads] Investors Effect on Household Real Estate Affordability
Sebastien Gay (Chicago - Econ)
4. [165 downloads] Legal Institutionalism: Capitalism and the Constitutive Role of Law
Simon Deakin (Cambridege), David Gindis (Herfordshire), Geoffrey M. Hodgson (Herfordshire), Huang Kainan (Shandong), and Katharina Pistor (Columbia)
9. [79 downloads] Patent Licensing and Secondary Markets in the Nineteenth Century
Adam Mossoff (George Mason)
10. [79 downloads] MERS Litigation -- Brief of Amicus Curiae the Legal Services Center of Harvard Law School and Law Professors in Support of the Appellee
Max Weinstein (Harvard), Melanie B. Leslie (Cardozo), David J. Reiss (Brooklyn), Joseph William Singer (Harvard), and Rebecca Tushnet (Georgetown)
Thursday, July 2, 2015
The National Trust for Historic Preservation has put out its annual list of the country's most endangered historical sites. The Trust describes this year's entries as the "most diverse list ever." Here are the places facing threats:
- A.G. Gaston Motel, Birmingham
- Carrollton Courthouse, New Orleans
- The Factory, West Hollywood
- Fort Worth Stockyards, Fort Worth
- Little Havana, Miami
- Old U.S. Mint, San Francisco
- South Street Seaport, New York City
- Oak Flat, Superior, Arizona
- The Grand Canyon, Arizona
- Chautauqua Amphitheater, Chautauqua, New York
- East Point Historic Civic Block, East Point, Georgia
William Fischel (Dartmouth - Econ) has posted The Coase Theorem, Land Use Entitlements, and Rational Government (Book Chapter) on SSRN. Here's the abstract:
This essay constitutes chapter 6 of my forthcoming book, Zoning Rules! The Economics of Land Use Regulation, which the Lincoln Institute of Land Policy will publish in 2015. This chapter offers a formal structure with which to analyze land use controversies and an evaluation of its relevance. The first part introduces the Coase theorem and applies it to a famous dispute between feuding hotel owners in Miami Beach, Florida. A modification of elementary supply and demand curves, “the entitlements diagram,” is developed in this highly localized context and deployed to illustrate the Coasian approach. I then expand the analysis to include local public goods in a less famous but more practical example involving a rezoning by a successful developer in Lebanon, New Hampshire.
The expansion of the entitlements analysis to include local government decisions requires a model of governance that relies on someone called the “median voter,” who is usually in the majority of local elections. The median voter model is the workhorse of local public economics, but it is nonetheless controversial in the legal academy. Many believe that the preferences of the majority do not actually prevail and, when the majority does rule, it is unlikely to respond rationally to economic incentives. I review the econometric evidence that confirms that the median voter's preferences determine government policies and that those policies rationally advance the interests of the majority. The evidence is more controversial in the case of compensation for regulatory takings. It is explored using the experience from a voter initiative in Oregon in 2003, which called for compensation for land use regulation but resulted almost invariably in deregulation. Despite this special example, I conclude from other examples that local governments and the zoning laws they enact are generally no less economically rational than their purely private cousins, modern American business corporations.
Tuesday, June 30, 2015
The City as a Commons: Reconceiving Urban Space, Common Goods and City Governance
Bologna, Italy November 6-7 (2015)
Co-Chairs: Shelia Foster (Fordham) & Christian Iaione (Marconi - Italy)
Inspired by the recently implemented Bologna Regulation on Collaboration for the Care and Regeneration of the Urban Commons, as well as by other commons-based experiments in cities around Italy by the LabGov project (e.g. Co-Mantova, Co-Battipaglia and Co-Palermo), the 1st IASC Thematic Conference on the Urban Commons will bring together leading scholars, researchers, policymakers, practitioners and social innovators to take stock of the developments in the interdisciplinary study of the urban commons and related questions of urban governance. Although the urban commons has increasingly appeared as a topic of scholarly inquiry, there has yet to be sustained attention to the research questions, methodologies, and disciplinary approaches necessary to more fully conceptualize and develop the idea of the “urban commons” and the new challenges and facets it introduces into the ongoing study of the commons in diverse fields. The conference will seek to better understand the idea of urban commons at different scales, under what circumstances and contexts urban commons emerge, what contributes to their durability and effectiveness, and what undermines them. The conference will stress the importance of an “urban commons narrative” for urban infrastructure, urban welfare, and urban development. Additionally, the conference will focus on questions of urban governance and will explore different frameworks for governing common urban resources, and the city, in a collaborative manner. The conference will highlight six thematic questions, which are: Conceiving the Urban Commons, Mapping the Urban Commons, The Urban Commons and Democratic Innovation, The Collaborative/Sharing Economy as the Basis for a Commons-Based Urban Economy, Social innovation as the Basis for a Commons-Based Urban Welfare, and Designing and Governing the City as a Commons.
The international call for papers will open on June 20th, 2015. Abstracts may be submitted to firstname.lastname@example.org. The deadline for submission is August 10th, 2015 at 12:00 AM CET.
For more information, see here.
Monday, June 29, 2015
Houston Matter discusses the Texas Open Beaches Act (with Property Prof. Matt Festa). A summary of a recent dispute:
The Houston Chronicle recently reported on a conflict between a Galveston resident and the city’s Park Board over who rightfully owns a section of Galveston beach in front of the seawall. Resident Frank Maceo says that portion of the beach belongs to him. City officials say Maceo’s claim could endanger plans to re-sand some of the eroding beaches. It’s not the first time property owners have staked claims to portions of a beach in Galveston. A similar case went before the Texas Supreme Court, and in 2012 the court ruled in favor of the property owner.
At the center of the debate is the Open Beaches Act, which was added to the state constitution in 2009 and guarantees the public the right to free and unrestricted access to Texas beaches along the state’s coastline.
Stephen Miller (Idaho) has posted Funding Conservation in Idaho: A Survey of Federal, State & Local Resources Assisting Conservation on Private Lands on SSRN. Here's the abstract:
The purpose of this publication is to provide a guide to the most common funding resources available for conservation on private land in Idaho. Conservation funding sources discussed include: North American Wetlands Conservation Act; Pacific Coastal Salmon Recovery Fund; Partners for Fish and Wildlife Fund; Recovery Land Acquisition Grants; Land and Water Conservation Fund; National Fish Passage Program; Cooperative Endangered Species Conservation; Environmental Quality Incentives Program; Forest Legacy Program; the Agricultural Conservation Easement Program – Agricultural Land Easements; Agricultural Conservation Easement Program – Wetland Reserve Easements; Bonneville Power Administration – Wildlife Mitigation; Conservation Stewardship Program; Clean Water Act § 319 Funds; Boise City Foothills Levy; and Blaine County Land, Water and Wildlife Program.
Friday, June 26, 2015
Here's some round-up on Texas Department of Housing v. Inclusive Communities Project. In case you missed it, the court confirmed that claims under the Fair Housing Act prohibits can be based on a “disparate impact” (i.e., a discriminatory effect) even if the underlying law or policy wasn’t motivated by an intent to discriminate.
Washington Post: Supreme Court upholds key tool for fighting housing bias
Insurance Journal: Insurers Disappointed as Supreme Court Backs Disparate Impact Claims
Mila Versteeg (UVa) has posted The Politics of Takings Clauses (Northwestern Law Review) on SSRN. Here's the abstract:
A long-standing consensus exists that the arbitrary or excessive expropriation of private property by a country hurts its economic growth. Constitutions can potentially play an important role in protecting private property from arbitrary or excessive expropriation by offering a range of mechanisms that make it more difficult for governments to renege on the constitutions’ promises. Despite their potential importance, remarkably little is known about how constitutions actually restrict the power of eminent domain and whether such restrictions are associated with reduced de facto expropriation risks. This Essay fills that gap by presenting original data on the procedural and substantive protections in constitutional takings clauses from 1946 to 2013. Its main finding is that no observable relationship exists between de jure constitutional restrictions on the power of eminent domain and de facto expropriation risks.
This Essay explores two possible explanations for why constitutional restrictions on the power of eminent domain fail to make a difference in practice. The first is that countries adopt disingenuous promises to bolster their international reputation or to attract foreign aid. The second explanation holds that, although takings clauses have the potential to make society as a whole better off, under some circumstances the benefits of secure property rights fall disproportionally upon economic elites, and a majority of citizens benefit more from expropriation than from increased economic growth. As a result of this dynamic, disagreements over the desired level of expropriation might be built into the constitution’s design.
This Essay finds empirical support for the second explanation. Specifically, it finds that real-world constitutional property regimes are often riddled with ambiguities. That is, constitutions often include strong procedural and substantive restrictions on the power of eminent domain but also include “fine print” that can undermine those restrictions, such as provisions that offer a narrow definition of private property, policies that contemplate land reform, provisions that restrict the property rights of foreigners, and clauses that make private property subordinate to the common good. What is more, this Essay finds that when accounting for such fine print, constitutional restrictions on the power of eminent domain do appear to be correlated with reduced expropriation risks. This finding suggests that the effectiveness of takings clauses might depend to a large extent on the politics surrounding their adoption.
Thursday, June 25, 2015
Alana Semuels ponders some of the problems facing Section 8 housing:
The failings of Section 8 go far beyond flaws in how the program was designed to how the the states have implemented it. People can argue all they want about the merits of subsidized housing, but given that Section 8 exists, it would seem advantageous for states and municipalities to take advantage of federal funds to help families find better housing. But many states seem especially determined to keep voucher-holders in areas of concentrated poverty.
“The whole idea of Section 8 in the beginning was that it was going to allow people to get out of the ghetto,” said Mike Daniel, a lawyer for the Inclusive Communities Project, told me. (Daniel has sued HUD over the way it is carrying out the program in Dallas.) “But there’s tremendous political pressure on housing authorities and HUD to not let it become an instrument of desegregation.”
For example, in much of the country, landlords can refuse to take Section 8 vouchers, even if the voucher covers the rent. And, unlike the landlords in poor neighborhoods in Eva Rosen’s study, many landlords of buildings in nicer neighborhoods will do anything to keep voucher-holders out. The result is that Section 8 traps families in the poorest neighborhoods.
Richard Gold (McGill) has posted Pluralist Property: The Interaction of Legal and Social Norms on SSRN. Here's the abstract:
Justice Holmes long ago recognized the conventional nature of property. What he did not explain is how convention and law interact to create the substantive content of property rights: who can do what in respect of a good and when. Contemporary legal theory focuses on the form of property rights – whether they are necessarily rights to exclude or whatever the state says they are – rather than on their substantive contents. In doing so, however, theory fails to address two fundamental features of property. First, property law adapts to new forms of goods, tangible and intangible, over which the state likely had no conception at the time the rule was made. Second, when states create new forms of property, they generally do not actually legislate what one can do with that property, although in practice there are limits. For example, the EU did not define the substantive content of the euro when that currency was introduced despite the complete absence of background law relating to money. Drawing on a combination of property and social norms theory backed up by empirical studies, this article provides a pluralist account of property and explores its consequences for law.
Tuesday, June 23, 2015
Ilya Somin does the knowledge on Horne v. Department of Agriculture:
Horne involves a challenge to the forcible appropriation of large quantities of raisins by the federal government. The forced transfer is part of a 1937 program that requires raisin producers, in some years, to turn over a large portion of their raisin crop to the government so as to artificially reduce the amount of raisins on the market, and thereby increase the price. Essentially, the scheme is a government-enforced cartel under which producers restrict output for the market so as to inflate prices. The Hornes claim that the appropriation of their raisins amounts to a taking that requires “just compensation” under the Fifth Amendment.
The Court ruled in favor of the property owners by an 8-1 margin on the most significant issue at stake: whether the government’s appropriation of the raisins is a taking. Only Justice Sonia Sotomayor dissented.
This is an extremely important result, because it rejects the government’s dangerous argument that the Takings Clause offers less protection for personal property than for real property (the legal term for property in land), which had been embraced by the Ninth Circuit lower court decision. For reasons elaborated in detail in an amicus brief I joined along with other constitutional law and property scholars, the government’s position on this issue was deeply at odds with the history and original meaning of the Takings Clause. Indeed, as the Court notes, the Clause was adopted in part as a reaction to abusive British confiscation of personal property during the colonial era and the Revolutionary War.
Monday, June 22, 2015
Last week the Supreme Court issued an opinion in Reed v. Town of Gilbert, its most recent sign case. As expected, the Court ruled against the town's sign regulation ordinance.
Here's SCOTUSblog's coverage.
Bloomberg Law interviewed law professors Mark Graber of the University of Maryland and Stephen Miller of Idaho about the case. The interview is available here.
Donald Kochan (Chapman) has posted A Framework for Understanding Property Regulation and Land Use Control from a Dynamic Perspective (Michigan Journal of Environmental & Administrative Law) on SSRN. Here's the abstract:
Our land use control system operates across a variety of multidimensional and dynamic categories. Learning to navigate within and between these categories requires an appreciation for their interconnected, dynamic, and textured components and an awareness of alternative mechanisms for achieving one’s land use control preferences and one’s desired ends. Whether seeking to minimize controls as a property owner or attempting to place controls on the land uses of another, one should take time to understand the full ecology of the system. This Article looks at four broad categories of control: (1) no controls, or the state of nature; (2) judicial land use controls and initial assignments based on inherent rights and obligations arising as intrinsic to the system; (3) private land use controls that can achieve alterations in the initial assignments of rights and obligations through voluntary transfers; and (4) public land use controls, including legislative and regulatory means to force adjustments to initial assignments. The Article posits that players in the land use control game must assess their options in each category and appreciate the ability, and sometimes the necessity, to move between these four categories. Developing an understanding of the system through a conceptual framework this Article calls the “Dynamic Circle of Land Use Controls” better situates one to see all of the system’s parts and, more importantly, to strategically plan one’s route through the system to achieve a desired result. After explaining the options and the framework, this Article provides two concrete, illustrative examples for applying the framework: dueling neighbors over the right to paint a house pink and competitive resource extractors (owners of coal and coal bed methane) with complex deeds and nearly unresolvable conflicts in developing their assets.