PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

Thursday, March 17, 2016

Lehavi on The Culture of Private Law

Amnon_LehaviAmnon Lehavi (ICH - Radzyner) has posted The Culture of Private Law on SSRN.  Here's the abstract:

The chief goal of private law is to guide and facilitate interpersonal conduct. In fields such as contracts, property, and corporate governance, lawmakers have an essential normative role of envisioning ideal types of collective action and designing legal and organizational mechanisms that will streamline these types of action, while also giving parties substantial leeway to tailor their interpersonal legal relations.

This Article argues that for such a legal design to be effective, regardless of the substantive content of its underlying normative values, lawmakers must consider the actual congruence between the ideal types of collective action envisioned by private law norms and the prevailing cultural orientations, values, and beliefs that practically guide everyday interactions in a certain society or group. To the extent that a private law reform wishes to promote a new type of collective action that is not initially supported by such grassroots forces, it must find ways to enable at least an incremental shift in the relevant cultural traits to facilitate the desired modes of interpersonal collaboration.

Rejecting an all-or-nothing approach to cultural change, this Article underscores the key role of collective-action organizations, such as business corporations or homeowner associations, in mediating between private law reforms and incremental cultural shifts.

March 17, 2016 | Permalink | Comments (0)

Wednesday, March 16, 2016

Mahoney on Takings & Lessons from the Financial Crisis of 2008

MahoneyJulia Mahoney (UVa) has posted Takings, Legitimacy, and Emergency Action: Lessons from the Financial Crisis of 2008 (George Mason Law Review) on SSRN.  Here's the abstract:

Government actions taken during and in the wake of the Financial Crisis of 2008 have generated lawsuits that, somewhat unexpectedly, have made takings law a key vehicle for assessing the government’s response to the crisis. This Essay examines these developments and offers three observations. First, these suits have already served an important public purpose by uncovering information that might not otherwise have come to light about how and why the government chose to do what it did. Second, the prospect of relief for takings claims can bolster the legitimacy of emergency action. This insight leads to this Essay’s final point, which concerns the political economy of public measures to contain financial and economic crises. Government choices regarding who gets help, how much, and with what strings attached inevitably yield winners and losers. Insulating these decisions from review can facilitate the use of crisis to subvert government for private ends. Particularly at a time when anxieties about “crony capitalism” and the outsize influence of elites are running high, these are the wrong incentives to create.

March 16, 2016 | Permalink | Comments (0)

Tuesday, March 15, 2016

Righetti on Condemnation for Subsurface Ways of Necessity

Righetti_profile_photoTara Righetti (Wyoming) has posted The Private Pore Space: Condemnation for Subsurface Ways of Necessity (Wyoming Law Review) on SSRN.  Here's the abstract:

Article 1, section 32 of the Wyoming Constitution sets forth a private right of eminent domain for ways of necessity. In the 125 years since its passage, section 32, the Wyoming Eminent Domain Act, and the private road statute have been used by private parties to obtain access to homesteads and oil wells, build ditches and flumes to divert irrigation water to arid parcels, and construct railway sidings and tramways through which coal could be transported from a mine to an interstate railway. To date however, the right of condemnation for ways of necessity has only been applied to establish access to and promote development of surface parcels by establishing means of surface use; it has not been used in the subsurface context.

This article examines whether energy developers can condemn subsurface ways of necessity under the Wyoming Eminent Domain Act. In so doing, it describes the nature of the property interest in the subsurface, and applies section 32 and the requirements of the Wyoming Eminent Domain Act to subsurface acquisitions. It then briefly examines challenges posed by calculations of due compensation for subsurface takings.

March 15, 2016 | Permalink | Comments (0)

Monday, March 14, 2016

The Make or Break Moment for Kasich . . . So Let’s Talk Property!

March 15 is the make or break day for the Kasich campaign. And by “make or break,” I mean this is the day that determines whether Kasich gets to sit at the grown ups table at a contested GOP convention or whether he is stuck at the kiddie table. Yes, the media is talking about Kasich and the Pennsylvania ballot, but c’mon. The Steel State hasn’t voted for a Republican POTUS since 1988 in the general election. Sure it has 71 GOP delegates to give away, but the vote isn’t until April 26. If someone doesn’t have the Republican nomination sewn up by late April, a contested convention is all but a certainty and then what does it matter whether Kasich’s name was on the ballot?

So let’s talk about something that does matter: eminent domain!

As Governor of Ohio, Kasich is familiar with the potential power of eminent domain. The subject has come up in at least one area of Ohio politics: colleges and universities. Early in Kasich’s first term as governor, he proposed the notion of charter universities. Think charter schools at the graduate level. The theory was to give universities more flexibility and exchange public-sector money for private-sector money because public funding was drying up. It was 2011 after all and money was drying up everywhere.

The President of the University of Cincinnati was, at first, excited about the charter idea. So excited he decided to write to Governor Kasich about all of the reforms the Governor could make to the university system by creating charter universities, including giving universities the power to directly acquire land through eminent domain.

I have been to the University of Cincinnati’s campus many times. My brother is a graduate of UC’s College Conservatory of Music (CCM) so I have spent many a weekend flying in an out of the Cincinnati airport and attending the exceptional CCM productions. Go Bearcats, I say. But, as you might guess, not everyone in the state of Ohio thought that handing over eminent domain power to the university system was a good idea. As best as my research shows, it’s not that UC (or other university systems in Ohio) were being greatly harmed by not having the authority to exercise eminent domain power by themselves; the only issue was the university systems had to go through a public agency to acquire property via eminent domain. Ohio Rev. Code sec. 163.01 et seq. has established at least since 2007 that uses of land for public institutions of higher education, as well as for private institutions of higher education, are presumed to be “public uses,” and thus allowed under state eminent domain law. The only real issue is that an “agency” has to do the taking of the property and it doesn’t appear that universities are agencies under the statutory definition. In other words, the universities saw the charter university movement as an opportunity to cut out the government agency middleman when using eminent domain.

At least at first that is how folks perceived the charter university initiative. Over time, universities saw the writing on the wall: the charter university plan meant less state government oversight but also ultimately less money as private money was not likely to match public money. In due course, the charter university proposal was dropped.

Kasich never himself said he wanted to give the universities eminent domain power, but it was well published that at least the President of the UC system was asking for it and there was no record of Kasich saying he was against the idea. Who knows. Maybe if Kasich’s charter university plan had actually come to fruition he would have had to take a hard stance on the topic, but at a minimum he did not reject the notion outright.

And that seems to be a pretty fair analysis of Kasich’s position on eminent domain—unlike Rubio and Cruz, he’s not rejecting the use of eminent domain outright, but he’s not giving it a big bear hug like Trump. Kasich hasn’t said tons about eminent domain on the campaign trail, but he’s made a few comments, including:

It’s a local issue, but the issue of eminent domain is always a serious one. It’s a tough one you have to deal with. I usually come down more on the side of the people who own the property.

Kasich took a similar position when questioned about using eminent domain to build a pipeline in New Hampshire. According to a local newspaper,

Kasich criticized eminent domain, saying it should be a local control issue. The federal government has the power to take property by eminent domain under the Natural Gas Act. Kasich said he is not here to settle the pipeline debate, but said that eminent domain should be a last resort, not a first resort.

Based on his comments while on the campaign trail, Kasich seems to be generally against using eminent domain powers (though not ruling it out). As Governor, he didn’t rule out allowing universities to use eminent domain power, though he never endorsed the idea either. As with most issues, Kasich’s stance on eminent domain appears to be someone between Trump and Rubio/Cruz, with a lean towards the Rubio/Cruz end of the spectrum.

And there you have it—the GOPers (at least those who are still in the race) and their stance on eminent domain. Next up, we turn to the Dems to see how different (or similar) they are to their conservative counterparts.

March 14, 2016 | Permalink | Comments (0)

Eisenberg on Rural Blight

EisenbergAnn Eisenberg (West Virginia) has posted Addressing Rural Blight: Lessons from West Virginia and WV LEAP (Journal of Affordable Housing and Community) on SSRN.  Here's the abstract:

When we think of “blight,” we tend to think of Baltimore, Detroit, or any number of Rustbelt cities and urban centers with comparable issues. But blight affects rural areas as well, and surprisingly little attention has been devoted to the problem of rural blight. This Article argues that a framework for addressing rural blight should be built from the ground up, and that designing such a framework tailored specifically to rural needs will be more effective than hoping that urban tools turn out to be adequate in rural areas. This analysis draws upon the fields of rural development and sociology, as well as the West Virginia Legal Education to Address Abandoned and Neglected Properties program (WV LEAP) at West Virginia University College of Law’s Land Use and Sustainable Development Law Clinic, a year-long initiative designed to equip communities in the largely rural state of West Virginia to better handle neglected properties. In Part I, the Article discusses common characteristics of rural communities that may hamper their capacity to address blight, and analyzes why some legal tools typically used in an urban context may be inappropriate or unrealistic in rural contexts. Part II provides background on the WV LEAP program and discusses what lessons the program revealed as to how rural communities in West Virginia are frequently impeded in efforts to tackle blight, and how some of those communities manage to overcome those impediments effectively. Part III recommends eight elements as components of a comprehensive rural blight-redemption strategy.

March 14, 2016 | Permalink | Comments (0)

Mulvaney on Bargaining for Development

MulvaneyTim Mulvaney (Texas A&M) has posted On Bargaining for Development (Florida Law Review Forum) on SSRN.  Here's the abstract:

In his recent article, Bargaining for Development Post-Koontz, Professor Sean Nolon concludes that the Supreme Court’s recent ill-defined expansion of the circumstances in which land use permit conditions might give rise to takings liability in Koontz v. St. John’s River Water Management District will chill the state’s willingness to communicate with permit applicants about mitigation measures. He sets out five courses that government entities might take in this confusing and chilling post-Koontz world, each of which leaves something to be desired from the perspective of both developers and the public more generally.

This responsive essay proceeds in two parts. First, it illuminates the chilling effect Professor Nolon perceives by explaining Koontz’s grounding in the retroactive takings compensation principle adopted by the Supreme Court nearly thirty years ago in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles. Second, it suggests that Professor Nolon’s list of potential government responses to Koontz can be expanded to include at least five additional (if admittedly more radical) courses, several of which may hold slightly more promise for the public than those advanced in Professor Nolon’s insightful critique.

March 14, 2016 | Permalink | Comments (0)

Sunday, March 13, 2016

Where Does All That Mortgage Settlement Money Go Anyway?

(Photo Credit: WSJ, Christina Rexrode and Emily Glazer)

Late last week the Wall Street Journal published a story (behind a paywall) that many of us mortgage finance enthusiasts have been waiting to read. Since the 2008 crash various state attorneys general, the U.S. Department of Justice, and numerous federal agencies have taken aim at the fraudulent foreclosure, lending, and mortgage servicing activities of many of the nation's largest financial institutions. According to this WSJ story, the total amount paid by banks to date from mortgage-related litigation has been roughly $110 billion. To put that in perspective, the total amount of money allocated by Congress in connection with the Troubled Asset Relief Fund of 2008 (TARP) for purposes of  aided homeowners was $45.6 billion (out of the program's total $700 billion). The HAMP program (which was supposed to help troubled homeowners get loan modifications) was $30 billion of that amount. And, as an aside, most people know that HAMP was a miserable failure with very little actually getting spent on loan modifications. In fact, of the total 45.6 billion set aside in TARP for housing programs, as of the end of 2015 only $19 billion has actually been spent.

So if all this mortgage litigation was geared toward getting justice for homeowners, where did all that money go? would assume that it went to homeowners--those most hurt by these abusive practices. But if that's what you thought then you'd be wrong. As indicated below, a great deal of this money went to a host of different parties to fund activities far removed from the everyday struggles of the victims. Some of the funds went to fill gaps in state budgets, others went to pay for state fairs, while yet more went to subsidize the cost of local police forces. The Fiscal Times reports on the WSJ piece and breaks-down the distribution of proceeds as follows:

All of the $34 billion recovered by mortgage giants Fannie Mae and Freddie Mac for being sold fraudulent mortgage securities gets swept into the U.S. Treasury, by law. Some of the federal agencies receiving settlement funds also send those to the Treasury. So in fact, the biggest bubble should be the government’s general fund, with nearly $49 billion in proceeds from the settlements. * * * 

The Justice Department also collected “at least $447 million,” according to the report, despite their office building not being under threat of foreclosure either. States received $5.3 billion, but had no obligation to deliver any of that to housing-related programs. In fact, well over half of the $2.5 billion given to states in the 2012 National Mortgage Settlement went to plug budget holes. And the Journal article finds that bank-settlement money built horse stables in New York and funded email accounts in Delaware.

As for that $45 billion bubble of “consumer relief,” this is where the chart is perhaps at most variance with the facts. These were not hard dollars, but credits given to banks for performing certain activities. Many of those activities had nothing to do with rescuing borrowers from foreclosure. Banks got credit for bulldozing homes, donating homes to charity and giving homeowners small amounts of move-out money — routine things banks do anyway for public relations purposes.

Nearly one-quarter of the “relief” in the National Mortgage Settlement came from short sales, in which the bank forgives the difference between the price a distressed homeowner can fetch for their home and the amount they owe on the mortgage. Short sales can be beneficial, but they result in the homeowner losing the home. More people lost their homes in these settlements than saved them.

Even the “relief” that allegedly went to homeowners doesn’t tell the whole story. Banks could get credit by “extinguishing” long-delinquent second mortgages whose real value was $0, since there was no chance of repayment. Banks got credit in the Independent Foreclosure Review settlement administered by the Federal Reserve for the total amount of the mortgage they modified. In other words, if they reduced the principal on a $500,000 mortgage by $1, they got credit for $500,000 of “consumer relief.” That distortion is included in this calculation. Far fewer homeowners benefited from these settlements that it would appear at first glance.

It should also be emphasized that the top-line number of $110 billion in “penalties” doesn’t resemble what the banks actually had to pay. Most of the settlements were tax-deductible, reducing the total value by billions of dollars. Banks reduced principal balances on loans they only serviced and didn’t own, paying their fines with other people’s money. They could get HAMP incentive payments for loans they modified as part of the settlements. Banks even got credit in some settlements for issuing loans in low-income communities, a money-making activity (I’ve referred to this as akin to a bank robber being sentenced to open a lemonade stand).

The findings in the report are startling, but not entirely surprising. Considering how few of the funds earmarked for housing relief under TARP actually helped homeowners-in-distress (or were even spent at all), it's not a huge surprise that the government has not been very effective in distributing the proceeds from these various mortgage settlements.

There are some interesting comparisons to be made here with regarding to how other large-scale settlement funds have been used in the past. For instance, consider the 1998 Tobacco Settlement between the country's four largest tobacco companies and 46 state attorneys general. Under the settlement the defendants agreed to make continuous payments to the states in connection with the medical costs they incurred from the health hazards of smoking. The funds from this settlement have gone to pay for educational and health-related programs, but not without criticisms of the money's long-term handling. More recently (and closer to home) we can look to the handling of funds from the BP oil spill. The $20 billion settlement is earmarked to, among other things, go to state and local governments for their economic loss claims, for habitat restoration and wildlife conservation, for water quality enhancements and recreational opportunities, and for deposit into a reserve fund for future spills. The effectiveness of this distribution plan remains to be seen.

The bottom line is that in order for a settlement of any large scale wrong-doing to be effective the voices of the victims and those who advocate on their behalf must be heard first and foremost. Judging from the way in which the billions in mortgage settlement funds have been spent so far, those voices seem drowned out.


March 13, 2016 | Permalink | Comments (0)

Thursday, March 10, 2016

The War Against Eminent Domain: Rubio v. Cruz

Those of you who watched the Thursday night's debate heard about HB-1 Visas, Common Core, Social Security, etc. But let’s focus on something else: eminent domain. The question for Property Profs Blog readers—who is more against eminent domain, Ted Cruz or Marco Rubio? You decide.

From Team Rubio:

The fundamental right to private property has been under assault for years through government’s abuses of eminent domain. Eminent domain is the authority vested in government to force the sale of private property. While this authority can be a necessary evil in rare cases related to public development, such as the building of crucial infrastructure, its modern use far exceeds this limitation. Today, it is often wielded by crony capitalist politicians to benefit wealthy and powerful private developers.

Like the defense of other crucial rights, conservative efforts to defend private property are grounded deep in the history of our nation. In fact, abuses of this right were one of the catalysts for the American Revolution. As the first Continental Congress declared, “[The colonists] are entitled to life, liberty and property: and they have never ceded to any foreign power . . . a right to dispose of either without their consent.”

After being founded, in part, to protect these rights, our government has strayed far from this purpose. Compromise after compromise from elected officials in both parties has resulted in a government that believes it has the power to seize your property and sell it to rent-seeking private interests.

My guess is that some of the "crony capitalists" Rubio is at odds with have donated money to his campaign, but that’s just my guess. Pfizer, the “crony capitalist” at the heart of Kelo gave $5,000 to Rubio’s Senate campaign in 2010, though to be fair, Pfizer gave $5,000 to everyone running in Florida's Senate race that year.

Rubio’s website is not the only place he has attacked the Fifth Amendment. Back when the candidates were going door-to-door in New Hampshire, Rubio blasted Trump for supporting eminent domain. Rubio said while in the Florida legislature, he helped to pass “what has become model legislation for other states around the country, that actually passed both a law and a constitutional amendment that keeps developers like Donald Trump from using the power of eminent domain to take private property away from an owner and give it to another owner.”

While in the Florida legislature, Rubio did in fact do what he said he did.  Rubio sponsored the Florida legislation in 2006 (House Bill 1567 and House Joint Resolution 1569) that makes eminent domain less than helpful for developers. Under Florida law sponsored by Rubio (and signed into law by then-Governor Jeb Bush), localities must wait ten years before transferring land taken by eminent domain from one owner to another, thereby effectively making it a less-than helpful means for developers to acquire property.

If teams are being picked for a second Kelo showdown, Rubio is certainly on O'Connor's team, and really probably on Thomas' team.   

Now from Cruz’ Corner:

Not to be out done, Cruz has also boasted about how much he dislikes eminent domain, though Cruz has done so through TV ads, instead of his campaign website.


Protecting private property rights is an important issue for many of the early primary states like South Carolina, Nevada, and Alaska, so the Cruz campaign cut another ad regarding eminent domain, using very young children, Donald Trump-like dolls, and doll houses.  Needless to say, this ad caught the eye of many in reporters.  


And then there was a third ad.  


It's safe to say, Cruz, like Rubio, is also against using the Fifth Amendment to acquire private property for public use.  Except, Cruz does have an exception his anti-eminent domain stance.  That exception?  Immigration.  In July 2012, Cruz was asked about whether eminent domain could be used to take Texans' property for the purposes of building a wall between Texas and Mexico.  The answer: a resounding yes because it was an issue of national security.  


So you can decide--who stands stronger against eminent domain?  Cruz or Rubio?  

Tune in soon for a look at John Kasich's stance on the Fifth Amendment and then we will turn to the Dems.  

March 10, 2016 | Permalink | Comments (0)

Wednesday, March 9, 2016

Sun & Daniels on Externality Entrepreneurism

Lisa Sun (BYU) & Brigham Daniels (BYU) have posted Externality Entrepreneurism on SSRN.  Here's the abstract:

The way that economists have taught us to think about externalities — asking us to identify, measure, and internalize them — while useful, has created a substantial blind spot. According to economic thinking, the law ought to incentivize or force those who create externalities to internalize them. Yet, internalizing externalities is just one way of many that externalities shape law and politics: legal and political actors frequently employ externalities to galvanize or oppose change by strategically identifying, selecting, framing, and promoting externalities. These actors exaggerate and highlight different externalities with the aim of capturing the attention of individuals, the media, networks of interest groups, and ultimately legal and political decisionmakers. We call those who use externalities this way “externality entrepreneurs.” Externality entrepreneurism is prevalent in all levels and branches of government and in almost every area of law and policy, yet it is completely unexplored in existing scholarship. This Article seeks to remedy that neglect and begin the broader conversation about this vitally important lens. Because externality entrepreneurism is so ubiquitous and universal, understanding it is critical not only for those who wish to create change in our political and legal institutions but also for those who wish to more fully understand and evaluate the mechanisms by which such change occurs.

March 9, 2016 | Permalink | Comments (0)

Tuesday, March 8, 2016

Menell on Property, Intellectual Property, and Social Justice

MenellPeter Menell (Berkeley) has posted Property, Intellectual Property, and Social Justice: Mapping the Next Frontier (Brigham-Kanner Property Rights Conference Journal) on SSRN.  Here's the abstract:

Professor Joseph Singer’s property scholarship explores the human, cultural, social, and distributive dimensions of property law. Using his body of work as a springboard, this article explores the cross-currents flowing between intellectual property and social justice. Part I examines the limitations of tangible property theory as a frame for understanding intellectual property policy. Part II distinguishes between internal, largely utilitarian, analysis of particular modes of intellectual property protection and the external interplay of intellectual property systems and broader social justice concerns. Part III explores the macro interplay of intellectual property and inequality, gender and racial inclusion, and global justice challenges, highlighting complexities, tensions, and paradoxes.

March 8, 2016 | Permalink | Comments (0)

Coco on U.S. Bankruptcy Courts & Preserving Homeownership

Coco_lLinda Coco (Barry) has posted 'Foaming the Runway' for Homeowners: U.S. Bankruptcy Courts Preserving Homeownership in the Wake of the Affordable Modification Program (American Bankruptcy Institute Law Review) on SSRN.  Here's the abstract:

Since 2008, Congress has enacted manifold legislation aimed at reversing the effects of a housing crisis, but each law has ultimately inured to the benefit of banks and financial institutions. Homeowners have rarely, if at all, experienced benefits of the legislation and often have experienced greater harm. In fact, banks and financial institutions have systematically leveraged their bailouts to pressure individual homeowners to continue paying in full mortgages on properties that no longer hold value. These results evidence the failure of the Home Affordable Modification Program ("HAMP") and other federal programs, but bankruptcy courts in the United States offer homeowners an alternative remedy: a forum in which banks must negotiate with homeowners in good faith and a mechanism for permanent modification of home mortgages.

This Article discusses the ineffective assistance provided to individual homeowners under the Home Affordable Modification Program. Part II of this Article argues that the unequal protection provided by the bailout legal structures and the manner by which these programs entrench an emergent economic and political structure result from the neoliberal economic project. Part III of this Article describes how homeowners turned to the U.S. bankruptcy courts for alternatives to mortgage foreclosure in state court. Part IV discusses the authority under the Bankruptcy Code and bankruptcy rules for the implementation of formal mortgage modification programs. Part V describes how various courts address mortgage modification through existing practices. Part VI discusses, as a detailed example, the Middle District of Florida's residential mortgage modification mediation program. Finally, this Article considers whether bankruptcy court is an effective forum for mortgage modification.

March 8, 2016 | Permalink | Comments (0)

Monday, March 7, 2016

McConnell & Goodrich on Church Property Disputes

Michael McConnell (Stanford) & Luke Goodrich (Utah) have posted On Resolving Church Property Disputes (Arizona Law Review) on SSRN.  Here's the abstract:

In recent decades, major religious denominations have experienced some of the largest schisms in our nation’s history, resulting in a flood of church property disputes. Unfortunately, the law governing these disputes is in disarray. Some states treat church property disputes just like disputes within other voluntary associations — applying ordinary principles of trust and property law to the deeds and other written legal instruments. Other states resolve church property disputes by deferring to religious documents such as church constitutions — even when those documents would have no legal effect under ordinary principles of trust or property law.

We argue that both courts and churches are better served by relying on ordinary principles of trust and property law, and that only this approach is fully consistent with the church autonomy principles of the First Amendment. Only this approach preserves the right of churches to adopt any form of governance they wish, keeps courts from becoming entangled in religious questions, and promotes clear property rights. By contrast, deferring to internal religious documents unconstitutionally pressures churches toward more hierarchical governance, invites courts to resolve disputes over internal church rules and practices, and creates costly uncertainty.

March 7, 2016 | Permalink | Comments (0)

Nolon on Zoning for Solar

John_NolonJohn Nolon (Pace) has posted Mitigating Climate Change by Zoning for Solar Energy Systems: Embracing Clean Energy Technology in Zoning's Centennial Year (Zoning & Planning Law Report) on SSRN.  Here's the abstract:

Adopting land use regulations that encourage solar and other clean energy systems is an essential strategy for promoting clean power and one that focuses on the essential role that local governments play in mitigating climate change. This article explores efforts at the state and local level to reform zoning and land use regulations to permit, encourage, require, and incentivize rapidly-evolving clean energy systems, particularly solar, that, in the aggregate, have the ability to significantly increase power generation and decrease carbon emissions. The article illustrates how zoning, as it approaches its 100th anniversary, is encrusted with provisions that prohibit or discourage clean and solar energy systems: barriers that are being removed by progressive communities, some more successfully than others. It describes these barriers, then provides a framework and best practice examples for revising zoning codes and other land use regulations, first to eliminate regulatory barriers to permitting clean energy systems, focusing on solar as an example, and then to require and incentivize clean energy system deployment. Included is a review of the common law of solar access easements that helps explain the importance of the legislative powers of local government to facilitate solar power generation. The article concludes with an endorsement of state and federal actions that increase the speed of local adoption of zoning reforms by providing critical support, consistent with new scholarly findings that demonstrate how top down governmental influences can facilitate bottom-up progress, charting a strategy applicable to many other local initiatives to accommodate a wide array of emerging clean energy systems.

March 7, 2016 | Permalink | Comments (0)

Sunday, March 6, 2016

Tiny Homes Movement v. City of Los Angeles

(Photo Credit: Huffington Post)

Affordable housing issues continue to plague the American poor and middle-class. The size of the average home has grown significantly in the past fifty years. In fact, "homes are now two-and-half times larger than they were in 1950." As a result, prices have also increased. Along with this growth has been a similar ballooning of the country's homeless population - with some estimates pegging the total number in the U.S. at around 3.5 million in 2015.

Cities and local governments are being looked to more than ever to solve the country's social ills, including those related to housing. One way cities have tried to deal with homelessness is through partnering with local community groups and non-profits to build tiny homes - small, low-cost enclosures built to combat curbside homelessness. For instance, Seattle was the most recent city to join the effort when it constructed a collection of 14 tiny homes on local church-owned land. The structures are about 8x12 feet and provide insulation, heat, and electricity, with a central building in the tiny home village providing shower and bathroom facilities. Groups in other cities, such as in Portland and Madison, have also embraced the tiny homes movement.

But not all local leaders are thrilled about the proposition of pop-up villages in their neighborhoods. Political and community leaders in Los Angeles are in the middle of a huge fight right now over what to do with the prevalence of tiny home encampments popping up throughout the city. Advocates argue the tiny homes help deal with a pressing homelessness problem that the city seems unable to solve. Opponents, however, state that the encampments are unsafe, serve as a haven for crime, and diminish the overall quality of the neighborhood. The Los Angeles Times reports:

Escalating their battle to stamp out an unprecedented spread of street encampments, city officials have begun seizing tiny houses from homeless people in South Los Angeles. Elvis Summers, who built and donated the structures, removed seven of the gaily painted wooden houses — which come with solar-powered lights and American flags — on Wednesday and Thursday ahead of a scheduled city sweep.

Summers, an L.A. resident who says he was once homeless, had placed them within encampments on overpasses along the 110 Freeway, for homeless people to use instead of tents. But three structures impounded earlier this month remain in a city storage lot, a Bureau of Sanitation spokeswoman said, and the city notified occupants they would be “discarded.”

"These people are beaten down so hard, you give them any opportunity to be normal, it lifts them up," Summers said.

Councilman Curren Price, who represents the neighborhood, said the houses pose serious health and safety risks. “I’m getting complaints from constituents who have to walk in to the streets to avoid them,” Price said. Authorities destroyed needles, drug setups and a gun seized from one or more of the houses and tents during an earlier cleanup.

Some advocates for the homeless see the single-story structures — about the size of garden shed — as a cheap and safer alternative to having the homeless sleep on the sidewalks. . . The tiny house crackdown came as the city continues to struggle to balance enforcement with housing and other aid for the burgeoning homeless population. The city  passed a tough new sweeps ordinance that identified tiny houses as “bulky items” subject to immediate confiscation. More than 30,000 people sleep on the streets in Los Angeles County. * * * 

Kenner Jackson, who lives in a tiny house with his wife, Becky, and terrier, Cowboy, said officials were "taking houses from people who need them right now. ... Their plan isn't anything." Jackson said the city hauled away homeless people's possessions while leaving bulky items like mattresses and chairs that residents dump next to the freeway.

Johnny Horton, 60, whose heavily bandaged legs were scored with wounds from uncontrolled diabetes, wept silently Wednesday as he contemplated going back to sleeping in the street.


March 6, 2016 | Permalink | Comments (0)

Thursday, March 3, 2016

No “Path Forward” for Eminent Domain: A Look at Ben Carson’s Views on the Subject

Ben Carson may be dropping out of the Republican primary; at least all signs seem to point in that direction. But while he is still officially a candidate (despite not appearing at tonight’s debate), it seemed only fair (and interesting) to look at his views on eminent domain.

Recall from Super Tuesday we saw that real estate developer Donald Trump was, unsurprisingly, a big advocate of eminent domain. After all, he’s used it a number of times in his own development projects.

Carson, on the other hand, has never had to utilize eminent domain during his medical career; it’s not like after calling out for a scalpel, a surgeon is going to ask for the Fifth Amendment to be handed to him. Carson does not have the same personal experience with eminent domain as someone like Donald Trump, and for that reason--and probably for a bevy of other reasons--Carson has a different perspective on the topic.

In February of this year, Carson entered himself into a very local and somewhat unusual eminent domain issue in Mount Pleasant, South Carolina. Mount Pleasant is home to Shem Creek. I have never visited Shem Creek, but allegedly it is a modestly developed area, emphasis on the modest part. As one newspaper article described it, “[i]t’s a place for people to connect with nature, a monument to Lowcountry shrimping past and present, and a spot to grab a meal or a drink and watch the sunset.”

Enter four members of the Mount Pleasant Town Council elected or re-elected in November 2015. These members of the Town Council allegedly ran (and won) on what appears to be anti-development platforms, or at least platforms that were not in favor of substantial development of the Shem Creek area.

Here’s where eminent domain comes up. In early 2016, a parking garage and office building were being built along Shem Creek to the dismay of the newly elected and reelected members of the Town Council, as well as a vocal group of Mount Pleasant citizens. It was reported that the Town Council was contemplating using eminent domain to stop the building of the parking garage and office building. According to at least one current proprietor in the area, one plan thought up by the anti-development members of the Town Council was to use eminent domain to take property along Shem Creek, remove the businesses currently located there, and build a walkway to the water. This notion to use eminent domain to take operating businesses and turn the property into walkways was actually brought up at a Town Council meeting by a member of the Town Council in December 2015 with regards to other property near Shem Creek.

So what does any of this have to do with Carson, the only GOP candidate who briefly bested Donald Trump and was in first place during the past few months? (Remember those two, maybe three, weeks in November when Carson was in the #1 spot? Remember?) In February 2016, as the brouhaha regarding the potential use of eminent domain to claim property along Shem Creek was reaching a crescendo, Ben Carson came to the area to campaign for the South Carolina primary. In early primary states, local issues matter, so Carson took a meeting about the development of Shem Creek. After Carson met with the Shem Creek Development Group LLC (a group who, as its name implies, is in favor of developing Shem Creek and not in favor of the Town Council using eminent domain to hinder business development), Carson said the following:

“I’m very pleased whenever I see Americans citizens who are activated to protect all of our rights. This is a situation where we have a city council who wants to come in and use something as arbitrary as eminent domain to displace established businesses, and that would probably have a devastating effect.”

Based on his response, it seems Carson is anti-eminent domain, at least in as much as use of eminent domain would stifle business development. Unfortunately Dr. Carson did not pontificate much more on the subject, and given that he is likely to soon announce he is dropping out of the presidential race, it is unlikely we will hear much more from him on this topic. But still, it remains interesting how the Fifth Amendment has wiggled its way into this campaign, sometimes in the most unusual places.

Next up, a match up of Cruz v. Rubio—who is against eminent domain more? Tune in next week to find out!

March 3, 2016 | Permalink | Comments (0)

Fagundes on Property, Acquisition, & Subjective Well-Being

DavidFagundesDave Fagundes (Houston) has posted Buying Happiness: Property, Acquisition, & Subjective Well-Being on SSRN.  Here's the abstract:

Acquiring property is a central part of the modern American vision of the good life. The assumption that accruing more land or chattels will make us better off is so central to the contemporary preoccupation with acquisition that it typically goes without saying. Yet an increasing body of evidence from psychologists and economists who study hedonics — the science of happiness — yields the surprising conclusion that getting and having property does not actually increase our subjective well-being. In fact, it might even decrease it. While scholars have integrated the insights of hedonics into other areas of law, no scholarship has yet done so with respect to property. This Article maps this novel territory in three steps. In Part I, it summarizes recent findings on the highly conflicted effect on subjective well-being of the acquisition of both land and chattels. In Part II, it explores the implications of these findings for four leading normative theories of property law, showing that in different ways, the evidence produced by happiness studies undermines the core empirical propositions on which these theories rest. Part II also explores the potential of subjective well-being as a framework for assessing the optimal regulation of ownership. Finally, Part III investigates how looking at property through the lens of happiness can help us see this ancient body of law in a new light. Evidence from happiness studies casts doubt on some policies (e.g., state promotion of homeownership), while suggesting the appeal of others (e.g., tax incentives and disincentives designed to nudge acquisition in the direction of greater subjective well-being). Happiness analysis also suggests promising new insights about related aspects of property, including law’s attempts to prevent dispossession, the proper allocation of public versus private land, and the nascent sharing economy. This Article concludes by showing why these findings actually tell an optimistic, if nonobvious, story about the nature and future of property.

March 3, 2016 | Permalink | Comments (0)

Wednesday, March 2, 2016

Law in Place: The need for an outdoor legal education


(University of Idaho students discussing a culvert on a Boulder Creek tributary scheduled to be replaced to improve salmonid habitat.)

A common complaint about legal education is a perceived lack of “practical” experience. Law schools across the country, including at the University of Idaho, have addressed this need by increasing opportunities for students to participate in live-client experiences through clinics or internships, and by incorporating practical exercises throughout the substantive curriculum. But although students now have the opportunity to draft real legal documents, appear in court, and communicate with clients, many students are still missing exposure to the “things” of law—the people and places that law affects and effects.

The study of law is, of course, notoriously dense and difficult, with much in the way of words and little in the way of images, places, or dirt under the fingernails. This is a serious problem, as should be particularly obvious when we are studying the law of natural resources, land use, environmental protection, and real places and real people. We cannot understand conflict, and cannot propose useful solutions, until we know—intimately—the people and landscapes where those conflicts arise.

In August 2014, during my first attempt at offering a field course in natural resources law at the University of Idaho’s McCall Field Campus, we spent all of one afternoon driving gravel roads around what would become the Lost Creek-Boulder Creek Landscape Restoration Project on the Payette National Forest. We were looking at places that would be burned, roads that would be closed, and culverts that would be replaced to allow for steelhead and bull trout passage. I also tried to take advantage of our time in the forest to teach my students to identify all of the trees in the area, and perhaps more important—to me at least—to care about what those trees are. This is something of a Long-family tradition that I have taken from my father and am trying to impose on my own sons. My sons seem to enjoy it, but on the Payette, I got the sense that while a few of the students seemed to want to know the trees, most were bored—or worse, annoyed—by my constant pestering.

I finally felt compelled to pull our van over in a large clearing, at the high point of that day’s drive. The spot is known as Railroad Saddle, and is the hydrologic divide between Boulder Creek to the north and Lost Creek to the south. It is a broad, open, and relatively flat divide, offering few clues as to its legal and ecological significance.

But it is significant. Boulder Creek flows north and east about twenty miles to the Little Salmon River, which continues north until it meets the main stem of the Salmon River at the small town of Riggins, Idaho. At this point, the Salmon has mostly completed its unencumbered journey across Idaho. From Riggins, it continues north and then west before finally joining with the Snake River on the Idaho-Oregon border.

Precipitation falling south of Railroad Saddle follows a different path, flowing into the East Fork of Lost Creek. The East Fork flows about eight miles before joining with Lost Creek itself, a mile or so upstream of the Lost Valley Reservoir. After pausing a bit in the reservoir—filled with algae, surrounded by cows and overgrazed riparian areas, off-road vehicle trails, and paradoxically, a colony of the threatened Northern Idaho Ground Squirrel—Lost Creek continues on another ten miles to the West Fork of the Weiser River. This becomes the Weiser River, and then after flowing southwest for quite a while, eventually also meets the Snake River at the town of Weiser, Idaho, also on the Idaho-Oregon border.

Although both Boulder Creek and Lost Creek are part of the larger Snake River watershed, they differ in meaningful ways. The divide is open and flat enough that you can look each direction and see how the vegetative communities change, from the thicker, wetter, Douglas fir dominated forests in the mostly north-facing Boulder Creek drainage to the more open, drier, Ponderosa Pine forests on Lost Creek. Because we had spent the morning with the New Meadows District Ranger, we also knew that as we traveled from Boulder Creek into Lost Creek, we’d start seeing more cows and more evidence of unauthorized off-road vehicle use.

But it is what we cannot see that might matter more, particularly from a legal perspective. Boulder Creek is part of the Salmon River watershed, famous for containing the largest area of contiguous wilderness in the continental United States—the Frank Church River of No Return Wilderness. Although the Frank Church gets the most press, the Salmon River watershed is also home to the Gospel Hump Wilderness and millions of acres of National Forest. It is a fairly pristine watershed, as they go in the contemporary West, and between Railroad Saddle and the confluence of the Salmon and Snake Rivers, there are no dams, just as there are no dams on the entire Salmon River itself.

The Weiser River, and thus Lost Creek that flows into it, are farther upstream in the Snake River watershed. Lost Creek has its own dam, just a few miles from where we stand on Railroad Divide. But much more significant, immediately after flowing into the Snake River, the Weiser River water enters Brownlee Reservoir and the slack water of Brownlee Dam. Below Brownlee, it becomes the slack water of Oxbow Dam, and then the slack water of Hells Canyon Dam, a 330-feet tall concrete monolith standing at the head of Hells Canyon.

Together, these three dams—the Hells Canyon Complex, owned and operated by Idaho Power—are a complete barrier to fish passage, and the thousands of miles of streams that were historic spawning grounds for migrating salmon and steelhead.

This is what we cannot see, standing on Railroad Divide. Despite having to endure the eight dams on the Columbia and Lower Snake rivers on their journeys to and from the Pacific, salmon and steelhead continue to survive, and on occasion thrive, in the watershed to our north. But there are no migrating salmon or steelhead in the watershed just a few feet to our south.

The law means two very different things in these few feet of space we occupy on Railroad Divide, some of us standing in salmon habitat, some of us not. And we can see those differences on the ground, and in the proposals for landscape restoration we discussed in the morning and are visiting in the afternoon. The hours we spent seeking out culverts—both old and new—would have been largely meaningless just a hundred yards to our south. And the cows and off-road vehicles we will soon see would be much more meaningful—as significant as they already are—just a hundred yards to our north.

All of these subtle, meaningful things come together in this one place, as law on the ground. During this day, we have seen human uses on the landscape: sheep and old timber harvests and camping areas complete with 1950s pit toilets. We have seen the different trees, the different slopes and mountains and streams. And we have talked and thought and seen the effects of law. And so concluding my Railroad Divide soliloquy, I tell my students that it is my belief—and the raison d’être of the class—that you can only understand how law works, and why, when you understand the natural history of a place, when you know the people who live there and what they care about, and when you have walked the landscape and felt the rocks beneath your feet, waded the streams, and maybe crawled through the culverts.

And when you know the trees.

Railroad Divide, as a place, demonstrates how understanding specific laws, or particular legal or policy decisions, requires moving beyond text and into the forests. Understanding place in a broader sense is at once as simple as thinking about how water flows across the ground, and as complex as all of the constellations of legal, cultural, social, and physical landscapes through which that water might pass. An intricate understanding of people and landscapes, and of the unique cultural and social histories they developed on those landscapes, similarly requires exploring the streams and forests, meeting the people, and thinking about how legal, social, and cultural relationships work themselves out on the ground.

March 2, 2016 in Land Use, Law Schools, Natural Resources, Teaching | Permalink | Comments (2)

Babie on Ukraine's Transition from Soviet to Post-Soviet Law

Paul-BabiePaul Babie (Adelaide) has posted Ukraine's Transition from Soviet to Post-Soviet Law: Property as a Lesson in Failed Regulation on SSRN.  Here's the abstract:

This article traces the parallel developments of the Ukrainian transition from Soviet to post-Soviet law and from state to private property. To do this, the article is divided into four parts. The first examines the transition of the Ukrainian legal system from pre-Soviet to post-Soviet law. The second traces the microcosm of that transition as it occurred through the failed adoption of private property introduced in the law of post-Soviet Ukraine. The third demonstrates that the flawed approach by which private property has been adopted, with little if any real and effective regulation in post-independence Ukraine, has produced negative consequences for the Ukrainian people. The final part concludes.

March 2, 2016 | Permalink | Comments (0)

Katz on Ownership and Social Solidarity

Katz-larissaLarissa Katz (Toronto) has posted Ownership and Social Solidarity (Legal Theory) on SSRN.  Here's the abstract:

The article considers what Kant’s theory of property contributes to contemporary property theory. I argue that by drawing our attention to a new set of questions concerning the basis of the state’s authority, a Kantian approach provides an important alternative to the dominant instrumentalist approach to the moral problems that private ownership introduces (specifically, the problems of poverty and dependence). I consider the extent to which the Kantian framework is normative appealing. After raising a number of objections to the Kantian division of labor in response to the problem of material dependence, I suggest a way to restore some harmony between the rights of owners and the interests of others within a Kantian framework.

March 2, 2016 | Permalink | Comments (0)

Tuesday, March 1, 2016

Happy Super Tuesday!

2016.03.01. Twitter

As promised, today we begin looking at presidential contenders and their statements regarding property rights. Lots of media coverage today is focused on the GOP battle to—depending on your political preferences—either crown Trump the party nominee or stop him from putting an albatross around the Republican Party’s neck.  So today we’ll focus on the man everyone else is focusing on today, Donald J. Trump, otherwise known as Mr. Eminent Domain.  

Trump has made it no secret: he loves women, he loves the poorly educated, and he loves eminent domain. Here is an excerpt from a 2015 National Review article:

“I fully understand the conservative approach, but I don’t think it was explained to most conservatives,” Trump said in an interview with Fox News’s Bret Baier that aired yesterday. “Nobody knows this better than I do, because I’ve built a lot of buildings in Manhattan and you’ll have twelve sites and you’ll get eleven and you’ll have the one holdout, and you end up building around them. I know it better than anybody.”

Trump’s position on eminent domain has not evolved over time like some of his other positions, by his own admission, have. In 1998, one of Trump’s holdings, Trump Plaza Associates, was a plaintiff in a lawsuit in New Jersey regarding eminent domain. In Casino Reinvestment Development Authority v. Banin—which occurred before Kelo—Trump and the Casino Reinvestment Development Authority sought to take private property in Atlantic City to build a hotel and casino. Being before Kelo, Trump lost and the private landowners got to stay. (As a side note, the Banin case demonstrates the age-old rule that everything has a price. Three landowners stood up to Trump, turning down the state’s offer to take their property for $700,000. Eight years after the litigation ended, the landowners did sell the property to Trump for an alleged $2,000,000.)  

Ilya Somin (George Mason) had an interesting article in the Washington Post regarding Trump’s view and history of eminent domain. Suffice it to say that Trump believed in eminent domain twenty years ago and he believes in it today.

Not all of the candidates were as excited about Kelo as the Donald. Assuming there are still five GOPers and two Dems after tonight’s results come in, we’ll continue this post on Friday with a look at what other presidential candidates have said on the topic. Until then, everyone can make the Fifth Amendment great again. Or keep it great, which I guess is more in line with Trump’s position.

March 1, 2016 | Permalink | Comments (0)