Friday, November 22, 2013
In both Portland, Maine and San Francisco, Google has constructed a series of large structures on off-shore barges. A Google spokesman, says "Although it's still early days and things may change, we're exploring using the barge as an interactive space where people can learn about new technology." Others believe that the barges will move to large coastal cities, where wealthy customers will have the opportunity to check out Google Glass, the Internet giant’s forthcoming computerized eyewear. One interesting twist is that Google's off-shore construction has helped it avoid both public scrutiny and local zoning rules. Is this the future for our over-zoned cities?:
Google has been building a four-story structure in the heart of the San Francisco Bay for several weeks, but managed to conceal its purpose by constructing it on docked barges instead of on land, where city building permits and public plans are mandatory.
Until now, San Francisco city officials responsible for land use and state officials responsible for the bay have said they didn't know what was being built there. Coast Guard inspectors who visited the construction sites could not discuss what they saw. Lt. Anna Dixon said non-disclosure agreements were signed, but that those were not necessary, and that the Coast Guard, as a practice, doesn't share proprietary information it sees during inspections.
(HT: Sarah Schindler)
Jim Simth (Georgia) has edited a new book, Property and Sovereignty: Legal and Cultural Perspectives. The book features chapters from Al Brophy, Larissa Katz, and Daniel Fitzpatrick, among others. Here's the publisher's blurb:
This book explores the relationships between property and the concept of sovereignty from a number of different perspectives. It distinguishes between the dual meaning of 'sovereignty' in property discourse - political sovereignty and owner sovereignty. The contributors discuss the nature of sovereignty in both senses, applying it to a wide range of topics such as the evolution of property rights in fragile and conflict-affected nation states, and notions of sovereign property in new worlds. A section on the Arts illuminates the relationships between property, sovereignty, and culture, and a further section investigates regulatory property and governmental control over resources. The book concludes with an exploration of sovereign shaping of private property entitlements to achieve instrumental ends.
This interesting collection will be valuable to those in the fields of legal philosophy, property theory, international and comparative law, and political sociology. This book explores the relationships between property and the concept of sovereignty from a number of different perspectives. It distinguishes between the dual meaning of ‘sovereignty’ in property discourse - political sovereignty and owner sovereignty. The contributors discuss the nature of sovereignty in both senses, applying it to a wide range of topics such as the evolution of property rights in fragile and conflict-affected nation states and notions of sovereign property in new worlds. A section on The Arts illuminates the relationships between property, sovereignty and culture and a further section investigates regulatory property and governmental control over resources. The book concludes with an exploration of sovereign shaping of private property entitlements to achieve instrumental ends.
Thursday, November 21, 2013
Over the last 20 years the U.S. has acquired six tons of ivory through its efforts to stop trafficking. Questions arose about what the government should do with this cache. Recently, the U.S. Fish and Wildlife Services reached a final decision--it crushed the ivory into smithereens. The point of this exercise: "Destroying this ivory tells criminals who engage in poaching and trafficking that the United States will take all available measures to disrupt and prosecute those who prey on, and profit from, the deaths of these magnificent animals," reads a statement on the FWS website.
Adam Levitin (Georgetown) has posted The Paper Chase: Securitization, Foreclosure, and the Uncertainty of Mortgage Title on SSRN. Here's the abstract:
The mortgage foreclosure crisis raises legal questions as important as its economic impact. Questions that were straightforward and uncontroversial a generation ago today threaten the stability of a $13 trillion mortgage market: Who has standing to foreclose? If a foreclosure was done improperly, what is the effect? And what is the proper legal method for transferring mortgages? These questions implicate the clarity of title for property nationwide and pose a too- big-to-fail problem for the courts.
The legal confusion stems from the existence of competing systems for establishing title to mortgages and transferring those rights. Historically, mortgage title was established and transferred through the “public demonstration” regimes of UCC Article 3 and land recordation systems. This arrangement worked satisfactorily when mortgages were rarely transferred. Mortgage finance, however, shifted to securitization, which involves repeated bulk transfers of mortgages.
To facilitate securitization, deal architects developed alternative “contracting” regimes for mortgage title: UCC Article 9 and MERS, a private mortgage registry. These new regimes reduced the cost of securitization by dispensing with demonstrative formalities, but at the expense of reduced clarity of title, which raised the costs of mortgage enforcement. This trade-off benefitted the securitization industry at the expense of securitization investors because it became apparent only subsequently with the rise in mortgage foreclosures. The harm, however, has not been limited to securitization investors. Clouded mortgage title has significant negative externalities on the economy as
This Article proposes reconciling the competing title systems through an integrated system of note registration and mortgage recordation, with compliance as a prerequisite to foreclosure. Such a system would resolve questions about standing, remove the potential cloud to real-estate title, and facilitate mortgage financing by clarifying property rights.
Wednesday, November 20, 2013
The new building code in Vancouver has banned the traditional doorknob in favor of the easier-to-use lever handle.
The change has crept up on us silently and without fanfare. Look at any new condo building. Any new office door. Any door to a public washroom that doesn’t have pneumatic hinges and a push-pad. There they are, these silver, black or brass-coloured levers that can spring a door open with even a forearm when hands are filled.
And, as doorknobs go, so too will go those other ubiquitous knobs, the ones that turn on and off water faucets. For they too are being legislatively upgraded to levers more conducive to the arthritic, gnarled or weakened hands we earn with age.
The article offers a nice, concise history of the doorknob and explains the importance of small changes like this that increase accessibility.
Stephen Miller (Idaho) has posted Sustainable Cities of Tomorrow: A Land Use Response to Climate Change (Book Chapter) on SSRN. Here's the abstract:
This book chapter seeks to identify ways in which urban land use is a driver of climate change in both the developed and developing worlds. Urban land use factors identified as substantially affecting climate change include: rapid population growth; rapid urbanization; population migrations resulting from both economic and environmental causes; and declining urban density. The chapter then narrows its focus to evaluate the effectiveness of six U.S. land use law tools for both mitigation and adaptation to climate change. Tools evaluated include: compact cities as a mitigation strategy; compact cities as an adaptation strategy; efficient infrastructure and buildings; greening population migration; social resiliency; and engaging creative land use governance and financing structure.
Tuesday, November 19, 2013
Sarah Gensburger's editorial in the New York Times looks at the lesser known and more mundane acts of plunder committed by the Nazis against the Jews:
In Paris, the plunder of Jewish possessions began with the arrival of German troops in June 1940. At first, it applied only to art collections. But as soon as the Final Solution was devised in January 1942, the confiscations spread to the entire Jewish population, most of which comprised poor immigrants from Eastern Europe. Stripping Jews of their belongings was part and parcel of the effort to destroy them; pillage was an essential tool of extermination. [...]
This widespread plunder, known as Möbel Aktion, occurred in France, Belgium and the Netherlands. From 1942 to 1944, at least 70,000 dwellings were emptied; in Paris 38,000 apartments were stripped bare by French moving companies at the request of the German authorities. It took 674 trains to transport the loot to Germany. Some 2,700 train cars supplied Hamburg alone. [...]
The contents of each apartment were divided into two groups. Damaged objects or personal ones, like papers or family photos, were burned almost daily in a bonfire at the Quai de la Gare. The other items were sorted and classified by category, rather than source. A saucepan taken from one family would be added to a stack of other saucepans rather than kept in the original set. Stripped of their provenance, items lost their identity. Belongings became goods.
Japanese artist Isao Hashimoto has created a time-lapse map of the 2053 nuclear explosions that took place between 1945 and 1998. The action begins with the Manhattan Project’s “Trinity” test near Los Alamos and concludes with Pakistan’s nuclear tests in May of 1998 (The project does omit North Korea’s two alleged nuclear tests in this past decade).
Things start out a little slow but really get cooking around 1962.
Michael Wolf (Florida) has posted The Brooding Omnipresence of Regulatory Takings: Urban Origins and Effects (Fordham Urban Law Journal) on SSRN. Here's the abstract:
Monday, November 18, 2013
Writing for the LA Times, Andrew Tangel looks at the rise of New Yorkers living in RVs throughout the city:
As the most expensive city in the country gets even pricier, Cintron and other New Yorkers are taking drastic steps to survive the most brutal real estate market in the United States. They are ditching sky-high rents and buying secondhand recreational vehicles.
By turning to mobile apartments, RV dwellers are something of real estate pioneers in New York. RVs give New Yorkers a way into hip or exclusive neighborhoods they otherwise might not be able to afford. They don't have to worry about nagging landlords, rent hikes or upstairs neighbors tap-dancing at midnight.
But there are obvious trade-offs. Getting electricity takes some effort. Heating during the winter can get costly. Mail may need to be delivered to relatives' places or post office boxes. There's also the issue of how to hook up sewage lines. And RVs may not offer much social cachet. "The ladies aren't really kicking down the door," said Rick Hall, who gave up on trying to find an apartment before he moved to New York to study at St. John's University.
Is this even legal? Even the city isn't sure:
The city's Law Department offered little clarity over whether RV life was legal in New York. A department spokeswoman said the agency knew of no city laws specifically addressing living in an RV or any prohibition against living in a parked vehicle. The state Department of Motor Vehicles counted 589 RVs registered to New York City residents in 2012. The agency, which classifies them as "houses on wheels," does not track how many wind up as primary residences or get parked outside the five boroughs.
Steven Eagle (George Mason) has posted Koontz in the Mansion and the Gatehouse (Urban Lawyer) on SSRN. Here's the abstract:
This Article focuses on problems in implementing the U.S. Supreme Court’s expansion of its doctrine of unconstitutional conditions pertaining to land development approvals in Koontz v. St. Johns River Water Management District. As earlier developed in Nollan v. California Coastal Commission and Dolan v. City of Tigard, the doctrine applied only to unrelated or disproportional exactions of interests in real property. The doctrine was expanded in Koontz to include denials of development approval after landowner refusal to accede to unreasonable exaction demands, and also to exactions of money as well as real property interests.
Drawing an analogy to Yale Kamisar’s disparate treatment of criminal defendants in the “mansion” of the judicial system and the “gatehouse” of the police station, the Article discusses difficulties in implementing Koontz. It examines the difficulty of enforcing prohibitions on unreasonable coercion in informal bargaining between land development approval applicants and local regulators. The Article concludes by discussing specific procedural and substantive problems, and proposes some partial solutions.
Friday, November 15, 2013
Valerie Schneider, an Assistant Professor at Howard, has allowed us to post the following Op-Ed she wrote on the Mt. Holly case, which the Supreme Court was scheduled to consider on December 4th. The case, however, settled last night.
The issue in the case was whether acts that are not intentionally discriminatory, but still have a disproportionate negative impact on minority communities, are cognizable under the Fair Housing Act. Given that the Supreme Court gutted the Voting Rights Act last term, civil rights advocates were worried about the Supreme Court’s reaction to this case. The issue of whether “disparate impact” claims are cognizable under the Fair Housing Act will likely remain relevant, as there is another case winding its way towards the Supreme Court right now. Here's the Op-Ed:
Settlement in Fair Housing Case—A Sigh of Relief
By Valerie Schneider
Less than one year after the Supreme Court ended its term with the gutting of the Voting Rights Act, it is clear that at least four of the members of the current Supreme Court (the number needed for a case to be heard by the highest court) are eager to limit the reach of another pillar of the Civil Rights legislation from the 1960s—the Fair Housing Act.
In the past two years, the Supreme Court has granted certiorari in two Fair Housing Act cases, both of which would have required the Supreme Court to determine whether acts that are not intentionally discriminatory, but still have a disproportionate negative impact on minority communities, may be prohibited by the Fair Housing Act. Each of these cases –first Magner v. Gallagher and then, just this week, Township of Mt. Holly v. Mt. Holly Gardens Citizens In Action, Inc. – settled just weeks before oral arguments were scheduled.
Those who would have liked the case to move forward argue that, unless plaintiffs can prove that a defendant harbored racial animus or intended to discriminate, the law should not recognize that discrimination has taken place. This proposition is countered by widely accepted social science, not to mention human experiences, that indicates that intent actually has very little to do with whether discrimination occurred. Regardless, to those displaced by discriminatory redevelopment decisions or lending policies, it is little comfort that the decision-makers may have had no conscious intent to cause harm based on race. What is in the mind of those engaged in discriminatory actions is of no comfort to the victims of discrimination and should be of limited import under the Fair Housing Act.
One thing that is important to keep in mind is that the question before the Supreme Court in both Gallagher and Mt. Holly was whether disparate impact claims are cognizable under the Fair Housing Act—that is, the Supreme Court was to decide whether plaintiffs who have been harmed by practices with discriminatory effects can get through the courtroom door. In order to actually prevail in their cases, such plaintiffs have the heavy burden of proving, among other things, that there was a less discriminatory means by which the defendant could have accomplished its goals. Disparate impact analysis is no slam dunk for plaintiffs, but it is critical to ensuring that the Fair Housing Act lives up to its name—i.e. that it ensures fairness.
As noted in the amicus brief submitted in the Mt. Holly case by Howard University School of Law’s Fair Housing and Civil Rights Clinics, no one is suggesting that “disparate impact analysis should prohibit municipalities from achieving legitimate redevelopment goals; but it does arm communities of color with one small tool of protection when there is a clear means to achieve that legitimate goal in a way that would be less disastrous to the very communities that the Fair Housing Act was designed to protect.”
As the debate about disparate impact under the Fair Housing Act continues (and it is not unlikely that the Supreme Court will agree to hear yet another similar case), it is important to remember what is at stake. After hundreds of years of legal discrimination based on race, communities protected by the Fair Housing Act need a tool to combat the much more subtle forms of discrimination that persist today—disparate impact analysis is that tool.
Valerie Schneider is an Assistant Professor of Law at Howard University School of Law, and is director of Howard’s Fair Housing Clinic. A bio can be found at: http://www.law.howard.edu/1610. She can be contacted at: email@example.com.
Thursday, November 14, 2013
This story out of Virginia, features Donald Trump, a winery, a proposed golf course, and a conservation easement. In 2011, a Trump subsidiary bought Patricia Kluge’s Estate Winery and Vineyard, a 1,200-acre property with a dormant nine-hole golf course designed by Arnold Palmer. Trump wants to replace the old links with an expanded to 18-holes, 480 acre course. The difficulty is Partricia Kluge placed 216 acres under “conservation easement” in 2006:
Patricia Kluge, as a trustee of the John Kluge Jr. Trust, signed onto an easement with the Virginia Outdoors Foundation (VOF) in 2006, which states that it encourages preservation of natural, scenic, historic, open-space, and recreational land in Virginia. A memo from VOF stewardship specialist Tracy Hibbitts said golf courses don’t fit the bill. “It was noted that VOF’s current practice is not to accept easements with golf courses,” reads the memo.
The Trump, unsurprisingly, offer a different interpretation:
In a 2011 letter to VOF, Trump’s attorney Jason Greenblatt uses exact language from the deed of easement to argue for the golf course, explaining that industrial or commercial activities other than “temporary or seasonal outdoor activities that do not permanently alter the physical appearance of the Property, and that do not diminish the conservation values herein protected” are prohibited. “A golf course, naturally, is a commercial activity that clearly meets the requirements,” Greenblatt says in the letter.
Wednesday, November 13, 2013
Anne Siders (Columbia) has posted Managed Coastal Retreat: A Legal Handbook on Shifting Development Away from Vulnerable Areas on SSRN. Here's the abstract:
Climate change will change the way we live. No longer will the environment be a static condition, a certainty upon which other variables depend. Rather, it will be a variable itself, and it will make us plan for the future like never before. Already we are beginning to see the effects of change along our coasts. Rising seas and more frequent hurricanes present a dynamic environment that threatens infrastructure long thought to be safe. Our cities are ill-prepared for the dangers of the next century. Fiscally, we are spending more and more to repair the damage. Long-term planning that accounts for climate change is needed to ensure that money spent today will reduce our future risk.
We have the opportunity to not only build resilience today but also prepare for the future, to build the infrastructure that will be the foundation for our cities in the next century. This will require innovation and new technologies. It will also require tough decisions. Some areas will be too vulnerable, despite our best efforts to hold back the sea. Infrastructure and homes will need to be moved away from the threat and the shore opened up to the public. The political obstacles to this strategy will be severe in many places, but consideration of them should begin now.
Numerous legal tools already exist to assist federal, state, and local governments in conducting managed retreat away from the most vulnerable coasts. Scattered publications, toolkits, and websites describe a broad range of legal, policy, and regulatory tools. These tools have, with little fanfare, been used by communities around the United States to implement managed retreat. This Handbook collects examples, case studies, and lessons learned from some of these early innovators in the hope that their lessons can inform future efforts to limit the exposure of our communities to coastal threats. The key legal issues raised by these examples are also discussed.
The Handbook is organized into five sections. Each describes a potential tool, provides examples and information, and then present the lessons learned for that tool. The tools described herein are not the only tools that can or should be used. In fact, significant innovation will likely be needed to address the novel challenges posed by climate change. The tools presented here are simply a selection of those that have been implemented and that can inform future actions.
Tuesday, November 12, 2013
For twenty years, students in Auburn University's Rural Studio architecture program have been working to perfect the design of a house that can be built for $20,000. They now want to make their ideas available on the mass market:
But that's where the 20K house gets tricky. Its most desirable attribute also happens to be a bit of a curse. [...] "It costs the same amount to underwrite a $150,000 as a $20,000, so there's always pressures to raise the cost of the house, whether it's from the bank lending the money, whether its from the builder looking to make a profit, whether it's from the real estate agent," Freear says. In order to keep the 20K house at $20,000, Rural Studio is looking to partner with nonprofits that will help make sure their good design stays affordable.
In the meantime, Freear says it's a bit difficult for him to let the nit-picked, hyper-optimized 20K designs loose in the world. "My anxiety is always that we find a better solution each year," he says. "We've designed this thing to an inch of its life."
Katharine Maus (UVa - English) has recently published Being and Having in Shakespeare (Oxford University Press), a concise consideration of property and power in a few of the bard's plays. Here's the publisher's blurb:
What is the relation between who a person is, and what he or she has? A number of Shakespeare's plays engage with this question, elaborating a 'poetics of property' centering on questions of authority and entitlement, of inheritance and prodigality, and of the different opportunities afforded by access to land and to chattel property. Being and Having in Shakespeare considers these presentations of ownership and authority Richard II and the Henry IV plays construe sovereignty as a form of property right, largely construing imperium, or the authority over persons in a polity, as a form of dominium, the authority of the propertyholder. Nonetheless, what property means changes considerably from Richard's reign to Henry's, as the imagined world of the plays is reconfigured to include an urban economy of chattel consumables. The Merchant of Venice, written between Richard II and Henry IV, part 1, reimagines, in comic terms, some of the same issues broached in the history plays. It focuses in particular on the problem of the daughter's inheritance and on the different property obligations among kin, friends, business associates, and spouses. In the figure of the 'vagabond king', theoretically entitled but actually dispossessed, Henry VI, part 2 and King Lear both coordinate problems of entitlement with conundrums about distributive justice, raising fundamental questions about property relations and social organization.
(HT: Nick Blomley)
Monday, November 11, 2013
The New York Times offers a long look at the promise and peril of government efforts to resettle farmers into new model cities:
As China pushes ahead with government-led urbanization, a program expected to be endorsed at a Communist Party Central Committee meeting that began Saturday, many worry that the scores of new housing developments here may face the same plight as postwar housing projects in Western countries. Meant to solve one problem, they may be creating a new set of troubles that could plague Chinese cities for generations.
“We’re talking hundreds of millions of people who are moving into these places, but the standard of living for these relocatees has actually dropped,” said Lynette Ong, a University of Toronto political scientist who has studied the resettlement areas. “On top of that is the quality of the buildings — there was a lot of corruption, and they skimped on materials.”
Lee Fennell (Chicago) has posted Forcings on SSRN. Here's the abstract:
Eminent domain receives enormous amounts of scholarly and popular attention, and for good reason — it is a powerful form of government coercion that cuts to the heart of ownership. But a mirror-image form of government coercion has been almost entirely ignored: forced ownership, or “forcings.” While legal compulsion to begin or continue ownership is neither entirely unstudied as an academic matter nor entirely unprecedented as a doctrinal matter, the category lacks a unified treatment. Because coercively imposed ownership can substitute for other forms of government coercion, forcings deserve attention, even if they will rarely dominate other alternatives. Attending to forcings as a conceptual possibility reveals their kinship with existing features of law and highlights one of ownership’s most essential moves: delivering actual outcomes, and not just their expected value equivalents. Unpacking the considerations that might prompt law to impose ownership on unwilling parties points the way to alternatives short of full-strength compelled ownership. The analysis also suggests an additional domain of government action — “relievings” — for unburdening owners of unwanted property.