Wednesday, April 29, 2015
Sarah Schindler (Maine) has posted Architectural Exclusion: Discrimination and Segregation Through Physical Design of the Built Environment (Yale Law Journal) on SSRN. Here's the abstract:
The built environment is characterized by man-made physical features that make it difficult for certain individuals — often poor people and people of color — to access certain places. Bridges were designed to be so low that buses could not pass under them in order to prevent people of color from accessing a public beach. Walls, fences, and highways separate historically white neighborhoods from historically black ones. Wealthy communities have declined to be served by public transit so as to make it difficult for individuals from poorer areas to access their neighborhoods.
Although the law has addressed the exclusionary impacts of racially restrictive covenants and zoning ordinances, most legal scholars, courts, and legislatures have given little attention to the use of these less obvious exclusionary urban design tactics. Street grid layouts, one-way streets, the absence of sidewalks and crosswalks, and other design elements can shape the demographics of a city and isolate a neighborhood from those surrounding it. In this way, the exclusionary built environment — the architecture of a place — functions as a form of regulation; it constrains the behavior of those who interact with it, often without their even realizing it. This Article suggests that there are two primary reasons that we fail to consider discriminatory exclusion through architecture in the same way that we consider functionally similar exclusion through law. First, potential challengers, courts, and lawmakers often fail to recognize architecture as a form of regulation at all, viewing it instead as functional, innocuous, and pre-political. Second, even if decision makers and those who are excluded recognize architecture’s regulatory power, existing jurisprudence is insufficient to address its harms.
John Echeverria (Vermont) has posted The Costs of Koontz (Vermont Law Review) on SSRN. Here's the abstract:
Robust enforcement of individual constitutional rights protects the interests that the rights are designed to advance. But robust enforcement of individual rights can undermine other constitutionally protected values and impose other social and economic costs. This article catalogues the steep costs of the Supreme Court’s controversial 2013 decision in Koontz v. St Johns River Water Management District. In that case the Court issued two rulings expanding the rights of property owners under the Fifth Amendment to the U.S. Constitution: first, the Court extended the Nollan/Dolan standards to “monetary exactions;” second, the Court ruled that the Nollan/Dolan standards govern takings claims based on permit denials resulting from property owners’ refusal to accept “demands” for exactions. The Koontz Court paid little attention to the cost of these rulings, but it might well have reached a different result if it had paid more attention to them. These costs include: (1) exacerbated confusion about the scope and purpose of takings law, to the detriment of rule of law values and the reputation of the Supreme Court itself; (2) erosion of the principle of separation of powers due to an unwarranted expansion of the judicial role at the expense of the other two branches of government, (3) undermining of the U.S. system of federalism due to the promulgation of one-size-fits-all national judicial rules that limit local political accountability, diversity and policy experimentation; and (4) less efficient and effective protection and management of the use of land and other natural resources. Justice Elena Kagan predicted that the Court would come to “rue” its decision in Koontz, and the broader perspective suggested by this article might help the Court chart a different course on these issues in the future.
Tuesday, April 28, 2015
Asmara Tekle (Texas Southern) has posted Rectifying These Mean Streets: Percent-for-Art Ordinances, Street Furniture, and the New Streetscape (Kentucky Law Journal) on SSRN. Here's the abstract:
Percent-for-art ordinances beautify the urban public realm by creating dedicated and consistent funding for public art in urban public spaces, such as municipal buildings and parks. They dedicate anywhere from one half to two percent of the funding for qualifying projects to public art. As a consequence, it is a rare airport these days that has not been kissed by percent-for-art’s bounty in the form of whimsical, delightful, even challenging, public art. In contrast, the urban American street largely has been ignored in percent-for-art regimes. The urban street is as much urban public realm as these more conventional public spaces and is one of the city’s largest land uses. All too often, this street is one that is aesthetically mean - characterized by beat-up, pock-marked wooden utility poles, grey, lifeless steel street lights, and traffic signals dangling like last year’s Christmas lights.
The Article asserts that the streetscape and street are as much public realm as the airport, library, and park, and, therefore, are as deserving of public funding for public art as these more conventional public spaces. Currently, a number of percent-for-art regimes appear to be normatively biased against the street, but less so against street furniture. This paper similarly advocates that the definition of public art in a number of percent-for-art regimes be broadened to include the furnishings of the street, the utilitarian - even pedestrian - features of the urban streetscape that comprise so much of it and that do the people’s quiet bidding of collecting trash and recyclables (rubbish and recycling bins), lighting the way (street and pedestrian lights), protecting us from the elements (bus and transit shelters), and ensuring steadiness on our feet (pavement). Though they are utilitarian, street furnishings also have expressive potential and can be re-imagined as new canvases for a more contemporary public art that marries function and form, as compared to the conventional stand-alone piece.
This topic, as well as public art and percent-for-art ordinances generally, remain vastly under-explored in the legal academic literature. To date, there has been one article in a practice-oriented law journal that broaches the topic of public art within the context of percent-for-art fees in private development. This Article seeks not only to contribute to the legal academic conversation surrounding public art and percent-for-art ordinances, but posits that these ordinances should be expanded to capture expressly the streetscape and street furniture. Accordingly, this paper will delve into the literature of disciplines such as law, public art, urban design, and urban planning.
Broadening percent-for-art ordinances in these two ways helps to rectify the all too often aesthetically mean street in urban America. The effect would be to inject a dose of humanity, delight, and play into this major part of the urban public realm. Other reasons include activating and energizing the American street’s potential for street life, thereby helping to strengthen the urban fabric, attract sustained and desirable private investment, and bring art out of the museums and galleries and literally into the streets.
Monday, April 27, 2015
The land use dispute between George Lucas and the wealthy residents of Marin County rages on:
When George Lucas tried to expand his production company studios in California’s wealthy Marin County, the community pushed back. Then the “Star Wars” creator wanted to sell the land to a developer who would build affordable housing. “It’s inciting class warfare,” Carolyn Lenert, then head of the North San Rafael Coalition of Residents, told The New York Times at the time.
Now, two years after that project stalled, Lucas has decided to build the affordable housing and pay for it all himself. “We’ve got enough millionaires here. What we need is some houses for regular working people,” Lucas said through his lawyer Gary Giacomini, CBS affiliate KCBS reported.
Eveline Ramaekers (Oxford) has posted What is Property Law? on SSRN. Here's the abstract:
This article addresses a core question in property theory, namely 'What is property law?'. This question does not yet seem to have received the attention in academic discourse that it deserves, so by tackling this question the article aims to make a contribution to this aspect of the academic debate on property theory. The article provides an initial answer to the question of what property law is. It does so in five steps: (i) it asks why the question is a valid one in the first place; (ii) it presents an abstract model outlining the building blocks of property law; (iii) it discusses how to separate property law from other, adjacent fields of law; (iv) it investigates the possible application of the abstract model presented at step ii to 'new' property interests that have developed outside the realm of private law property law; (v) and it analyses the impact which developments in EU law have on the main question of what property law is. Given the broad and complex nature of the question the article can also be seen as a research agenda setting the tone for subsequent research into this topic.
Stefanie Carsley (McGill) has posted Rethinking Canadian Legal Responses to Frozen Embryo Disputes (Canadian Journal of Family Law) on SSRN. Here's the abstract:
This article examines and critiques Canadian legal responses to disputes over frozen in vitro embryos. It argues that current laws that provide spouses or partners with joint control over the use and disposition of embryos created from their genetic materials and that mandate the creation of agreements setting out these parties’ intentions in the event of a disagreement or divorce overlook the experiences of women who undergo in vitro fertilization treatment. It also maintains that these laws do not accord with how Canadian law and public policy has responded to similar conflicts between spouses, or to agreements that seek to control or restrict women’s reproductive choices. This article considers how legislatures and courts in other jurisdictions have sought to respond to embryo disposition disputes, but argues that their respective approaches raise similar issues and would pose additional problems within the Canadian context. It ultimately provides recommendations for how Canadian laws might better support the express objectives of the Assisted Human Reproduction Act and Quebec’s Act Respecting Clinical and Research Activities Relating to Assisted Procreation to protect the health and well-being of women, to promote the principle of free and informed consent and to recognize that women are more directly affected than men by the use of assisted reproductive technologies.
Friday, April 24, 2015
From the press release:
Joseph William Singer, Bussey Professor of Law at Harvard Law School, will receive the 2015 Brigham-Kanner Property Rights Prize at the 12th annual conference on Oct. 1-2 sponsored by the William & Mary Property Rights Project, the Law School announced today. The prize, named in honor of the lifetime contributions to property rights of Toby Prince Brigham and Gideon Kanner, is presented annually to a scholar, practitioner or jurist whose work affirms the fundamental importance of property rights. Singer has long been recognized as one of the nation's foremost theorists in property law. In addition to a casebook and treatise on property law, he is the author of Entitlement: The Paradoxes of Property (Yale University Press, 2000), The Edges of the Field: Lessons on the Obligations of Ownership (Beacon Press, 2000), and No Freedom without Regulation: The Hidden Lesson of the Subprime Crisis (Yale University Press, forthcoming).
[...] Eduardo Penalver, the Allan R. Tessler Dean and Professor of Law at Cornell Law School, praised Singer's selection for the 2015 Brigham Kanner Property Rights Prize as "an inspired choice." He explained: "A leading voice in the Progressive Property movement, Joe is a true champion of property rights, although not in the way that term is commonly used. To paraphrase an economist Joe likes to quote, Joe is such a believer in private property that he thinks everyone should have some. He has dedicated his career to studying this distributive question. And his work has deepened my own understanding of the nature and importance of ownership."
Robert Ellickson (Yale) has posted Open Space in an Urban Area: Might There Be Too Much of a Good Thing? on SSRN. Here's the abstract:
Numerous policies encourage the preservation of open space in urban areas. Two of many examples are large-lot zoning and tax benefits to donors of conservation easements. These policies rest on the plausible inference that an open space can benefit nearby residents, for instance, by enhancing scenic vistas and recreational opportunities. But commentators tend to underestimate the costs of open space. The key advantage of urban living is proximity to other people. Open spaces reduce urban densities, increase commuting times, and foster sprawl. I advance the heretical view that a metropolitan area can suffer from having too much open space, and briefly suggest some reforms, particularly in zoning and conservation-easement policy.
Jessica Shoemaker (Nebraska) has posted Emulsified Property (Pepperdine Law Review) on SSRN. Here's the abstract:
The typical American Indian reservation is often described as a “checkerboard” of different real property ownership forms. Individual parcels of reservation land may be held in either a special federal Indian trust status or in fee, by either Indian or non-Indian owners. The rights and responsibilities of trust owners are set by federal and tribal law, while fee owners are subject to state or tribal law. Many scholars have analyzed the challenges created by this checkerboard pattern of property and jurisdiction. This article, however, reveals an even more complicated issue that has thus far gone unaddressed in the literature. This article analyzes for the first time how the modern reservation is not merely a checkerboard of fee and trust parcels situated next to each other. Rather, significant numbers of reservation lands are now jointly owned by co-owners who hold undivided interests in the same property in different tenure types. Thus, many individual tracts now contain a mix of trust and fee ownership interests in the same resource.
These “emulsified” properties are made up of theoretically undivided co-ownership interests; however, the fee and trust co-owners have very different rights to the same property, including vastly different use and possession rights. There is no single over-arching set of legal rules that applies equally to all interests in emulsified properties, nor any single dispute resolution tribunal through which co-owners can negotiate a fair and efficient use of the resource. This article explores for the first time how these emulsified properties are created and analyzes the unique obstacles they create for landowners and for governance. While others have argued for a refocus on tribal property regimes in order to support tribal sovereignty more generally, this emulsified property problem tips the scales and makes more robust tribal property systems, with clear authority to govern all interests in emulsified properties, a critical next step.
Wednesday, April 22, 2015
Ken Stahl (Chapman) has posted Local Home Rule in the Time of Globalization (BYU Law Review) on SSRN. Here's the abstract:
Cities are increasingly taking the lead in tackling global issues like climate change, financial regulation, economic inequality, and others that the federal and state governments have failed to address. Recent media accounts have accordingly praised cities as the hope of our globally networked future. This optimistic appraisal of cities is, however, undermined by local governments’ cramped legal status. Under the doctrine of home rule, local governments can often only act in matters deemed “local” in nature, and cannot regulate “statewide” issues that may have impacts beyond local borders. As a result, the global issues that local governments are being praised for confronting are, almost by definition, the very sort of matters that home rule doctrine prohibits them from addressing.
This article has three goals: first, it aims to show why home rule has persisted in its present form despite its incompatibility with globalization; second, it explains some of the implications of our adherence to an outmoded conception of home rule; and third, the article draws on these observations to craft a new approach to home rule. I argue that the extant home rule doctrine is part of an ideology that the judiciary finds attractive, called liberalism. Liberalism seeks to disaggregate various aspects of human life – the state, the market, and the family, particularly – and assign them to distinct spheres. The dichotomy between statewide and local affairs is a means of preserving the boundaries among the state, the market and the family by tasking the state to regulate the marketplace and local governments to regulate the family. In light of globalization, however, it is clear that the liberal separation of spheres has had a different result. Following Karl Marx, scholars have argued that the separation of spheres has masked the dominance of capitalism, or, alternatively, the state, in all the putatively autonomous realms. Home rule has had precisely this effect. The idea that regulation of the family is local disguises the hegemonic role of the state in family matters, while the idea that commercial regulation is statewide has enabled capitalism to overwhelm regulatory constraints. I propose a new model of home rule that is not married to obsolete notions of separate spheres, and thus enables the local to serve as a vital counterweight to capital and the state.
Tuesday, April 21, 2015
A glassy new tower in New York City attracted an outcry for featuring one entrance for condominium owners and another for low-income tenants.
But having to walk through a so-called poor door has not deterred those seeking an affordable place to live. As of Monday, the deadline for applying, more than 88,000 people had put their name in for the 55 low-priced units, the developer said.
“I guess people like it,” said Gary Barnett, founder and president of Extell Development Company, the tower’s developer. “It shows that there’s a tremendous demand for high-quality affordable housing in beautiful neighborhoods.”
Boris Mamlyuk (Memphis) has posted Early Soviet Property Law in Comparison with Western Legal Traditions (Book Chapter) on SSRN. Here's the abstract:
This chapter is an attempt to put early Soviet property rights theory into conversation with property rights theories in various Western legal traditions, and to bracket that discussion within more foundational critiques of legal formalism. This is important not just because of the endurance of various socialist property regimes to this day, but also because unlocking shared ontological, political or ideological commitments in two nominally-opposed theoretical contexts can help us understand the actual normative stakes in these deliberations, and thus, shed light on the deeper institutional contours of property reforms by identifying previously overlooked actors, interests, and pathways of governance. The chapter starts with a heuristic mapping of several theoretical moorings for property rights in the Western legal tradition and attempts to problematize the formalist claim that property law regimes are relatively autonomous/internally constituted. It then examines early Soviet critiques of formalism and their remarkable ‘anti-formalist formalist’ argumentative logic. Following recent research that shows the deep embeddedness of private right as a default assumption in both Soviet and Western legal thinking, the chapter lays out several intuitions regarding the ideological and political functions that are served by the recognition of formal individual property rights regimes in socialist and liberal societies, including: (1) the reification of the individual as a primordial legal actor; (2) promotion of individualism in socialist societies and collectivism in liberal societies as an affective dimension of bipolarity; (3) instrumentalisation of private rights to occlude class conflicts or channel distributional conflicts towards particular institutional forms of dispute settlement. These themes are directly relevant to ongoing policy debates over the role of strong and clear property rights as prerequisites for economic growth not only in the context of various post-socialist ‘transitions’ but also globally.
Monday, April 20, 2015
The Fordham Urban Law Center is pleased to announce a call for participation for the 2nd Annual International and Comparative Urban Law Conference, to be held on Monday, June 29, 2015.
The all-day Conference will be held at the Sorbonne Law School at the Université Paris 1 Panthéon-Sorbonne in Paris, France. The Conference is co-sponsored by the Sorbonne Center for Study and Research on Environmental, Development, Urban and Tourism Law (SERDEAUT).
The Conference will provide a dynamic forum for legal and other scholars to engage and generate diverse international, comparative and interdisciplinary perspectives in the burgeoning field of urban law. The Conference will explore overlapping themes, tensions and opportunities for deeper scholarly investigation and practice with a comparative perspective across the following urban law topics, among others:
Structure and workings of local authority and autonomy
Economic and community development
Urban public health
Local government consumer protection
Family law and urban planning
The goal of the Conference is to facilitate an in-depth engagement across sub-specialties within the legal academy to help develop an understanding of urban law in the twenty-first century.
PROPOSAL SUBMISSION: Potential participants in panels and workshops at the Conference should submit a one-page proposal to Nisha Mistry, Director, Fordham Urban Law Center, at email@example.com. If you have a draft paper, please include it with your proposal. Participants do not need to have prepared a formal paper in order to join the program. The recommended deadline for topic proposal submissions is the week of April 20, 2015.
PUBLICATION: This year, the Urban Law Center will publish the first edition of a multi-year book series compiling cross-cutting global perspectives on law and urbanism, with a core focus on comparative enquiry. This Conference will serve as the basis for the second volume in this series, which will be published by Ashgate (as part of Juris Diversitas) following customary review and selection processes. If you are interested in potential publication, please indicate this interest at the time of your proposal submission.
ABOUT THE URBAN LAW CENTER: The Urban Law Center at Fordham Law School in New York City is committed to investigating and affecting the role of the law and legal systems in contemporary urbanism. See http://law.fordham.edu/urbanlawcenter.htm for more information about the Center.
ABOUT SERDEAUT: Today, SERDEAUT is the only research center in France dedicated to environmental, development, urban, housing, and tourism law altogether. These research and expertise themes directly concern the socio-economic problems that are currently of the utmost importance in France, Europe, and the rest of the world: sustainable development, territorial cohesion, economic development and housing. See http://serdeaut.univ-paris1.fr/ for more information about SERDEAUT.
Marc Roark (Savannah) has posted Human Impact Statements (Washburn Law Review) on SSRN. Here's the abstract:
When a city undertakes a development project, low income and homeless persons face risks of expulsion. Public and private developers often target low-income neighborhoods and public lands because those spaces are viewed as economically more attainable or available for development. Moreover, the legal systems preference to treat disputes as individual entitlement claims tends to relegate disputes to broad questions of entitlements rather than unpacking the impacts that property changes have on the vulnerable populations. Whether by gentrification or by enhancement of city infrastructure, developer decisions disrupt what are already unstable living environments by imposing increased costs of relocation. These changes also destabilize community relationships by separating individuals and families from the support networks, local transportation options, and local employment that they have come to rely on. In short, low-income and homeless persons find themselves even more destabilized when public and private development projects force their evacuation from where they live. This article argues that though development may be necessary, it should not be undertaken without more serious evaluation of the human impacts in relation to the space. Such evaluations should include the impact on communities, employment, education, and environment for impacted persons. Importantly, failure to take notice of these impacts continues to promote cycles of poverty that plague American cities.
Drawing on similarities in the environmental context, the article argues that a NEPA-like approach to human housing can offset externalities that homeless persons and those living in low-income housing are forced to internalize through environment changes. Amongst those impacts are the imbalance between the well-funded developer and low income populations; the view that low income properties can be classified as nuisance type properties; and the tendency to only consider the highest best use of property as the rationale for development. The article concludes by offering model legislation that could be implemented to provide a NEPA like assessment to city development.
Tanya Marsh (Wake Forest) has posted A New Lease on Death (Real Property, Probate and Trust Law Journal) on SSRN. Here's the abstract:
Friday, April 17, 2015
Ronen Perry (Haifa) & Tal Zarsky (Haifa) have posted Taking Turns (Florida State Law Review) on SSRN. Here's the abstract:
Two siblings jointly inherit their late father’s rocking chair. The chair has principally sentimental and no real economic value; it cannot be physically divided between them, and selling it to distribute the proceeds will compensate neither for the sentimental loss. What, then, should become of the disputed property? In a self-confessed “strange” decision in the McDowell case, the Surrogate’s Court of New York ordered that the two siblings take possession of the chair alternately for six-month periods; and that when one passed away, the other would obtain exclusive possession. An allocation method based on alternating enjoyment (or suffering) is commonly known as “rotation,” or more colloquially “taking turns.” Yet despite its manifestation in different legal contexts, and its considerable potential, rotation has been almost neglected by legal theorists. This Article makes the first attempt to delineate and exemplify the proper boundaries of this method’s utilization by and under the law, based on a comprehensive and systematic integration of fairness- and efficiency-oriented concerns. In providing a full-fledged theoretical framework we also aim to alert law and policy makers to the availability of rotation-based solutions to allocative challenges, and to advocate a cautious expansion of their application by and under the law.
Peter Ho (Delft) has posted The 'Credibility Thesis' and its Application to Property Rights: (In)Secure Land Tenure and Social Welfare in China (Land Use Policy) on SSRN. Here's the abstract:
Debates over tenure insecurity have been divided between those favoring private, marketable, and formalized property rights versus champions of grassroots’ customary and communal arrangements. By positing the “credibility thesis”, this article argues that it might be more insightful to move beyond concepts of formal and informal, private and common, or secure and insecure institutions, to leave the discussion about institutional form for a discussion about function. The notion of credibility does so by drawing attention to institutional function over time and space rather than to a desired form postulated by theory or political conviction. Apart from furthering the theoretical foundations on credibility and institutional functionalism, this article aims to develop its methodology and empirical study by taking China as a case study, with particular reference to its rural land-lease system, which is perceived to be highly insecure due to forced evictions and government intervention. Paradoxically, the study finds significant social support for the rural land-lease system and a low level of conflict. These findings might indicate that the form of the Chinese rural lease system (insecure tenure) is the outcome of its present function (provision of social welfare). Simultaneously, it was also found that when conflict does occur expropriation is a prime cause for it.
Thursday, April 16, 2015
The Atlantic Cities Blog profiles the men and women who continually paint the Golden Gate Bridge to keep it from rusting and crumbing into the ocean:
The Golden Gate Bridge is under attack. Corrosive salt air, roadway contaminants, age, UV rays—all these things are trying to turn the majestic span into a pitted skeleton.
Luckily the bridge has a powerful ally: an elite squad of painters, numbering just a few dozen. These busy operatives scurry up, down, and around the span on a never-ending quest to keep it protected and looking sharp.
The job has its ups and downs. There's the swinging through the sky, the whale-watching, and the wielding of badass tools reminiscent of alien torture implements. Less nice, there's a weird kind of marine vertigo and regular exposure to suicides.
Donald Kochan (Chapman) has posted Keepings (NYU Environmental Law Journal) on SSRN. Here's the abstract:
Individuals usually prefer to keep what they own. Property law develops around that assumption. Alternatively stated, we prefer to choose whether and how to part with what we own. As with the affection and attachment we have for our memories captured in the lyrics of the George Gershwin classic, so too do most individuals adopt a “they can’t take that away from me” approach to property ownership.
We often focus on the means of acquisition or transfer in property law. We less often look at the legal rules that support one’s ability to keep what she owns. Yet, it is precisely the ability to keep property that motivates its acquisition and that serves as a necessary element in offering any property up in a transaction as well – the property’s value is directly correlated with the buyer’s confidence in the seller’s authority to transfer (which can only exist if the owner also has the authority to keep it, i.e. not transfer) and with the buyer’s own confidence in his ability keep the property once he acquires it in the transfer.
This Article will catalog and evaluate a variety of doctrines, assumptions, presumptions, principles, and guidelines that exist for the purposes of aiding owners in keeping their property. I use “keepings” and “keepings rules” as terms that will refer collectively to these parts of the substantive law and legal infrastructure. Included is an analysis of these keepings rules within a Hohfeldian framework of immunities. In conclusion, the Article explains why these keepings rules are a necessary and vital component of an effectively operating property system.