Tuesday, October 20, 2015
Natalia Shagaida (Gaidar Institute) has posted Russia’s Policy of Agricultural Land Privatization: A Total Lack of Coherence (Russian Economic Developments) on SSRN. Here's the abstract:
When the issues of land privatization are considered from the point of view of the situation existing in agriculture, it becomes evident that the currently practiced approaches to privatization are not properly geared to such factors as the actual state of the objects of privatization or the need to address directly a certain economic issue, and do not rely on international best practices. We believe it is absolutely counter-productive even to talk about land privatization in Russia until its mechanisms and the risks associated with its implementation are made clear, and until a special body for managing this country’s land resources is created.
Eric Claeys (George Mason) has posted Sparks Cases in Contemporary Law and Economic Scholarship (Book Chapter) on SSRN. Here's the abstract:
“Sparks cases” arose in the late 19th century, when sparks from newly laid railroads caused fire damage to adjacent landowners. Sparks cases have become a staple example in law and economic scholarship over the last generation. This entry uses those cases to contrast the differences between leading approaches to law and economics and Austrian economics. Sparks cases illustrate concretely important differences between welfare-maximizing and order-securing legal theories of regulation. Many leading law and economic works assume that legal actors can maximize the welfare created from incompatible resource disputes; in sparks cases, such theories assume that legal actors may and should choose the regime of tort liability most likely to maximize the joint product from a railroad right of way and adjacent land. Austrian economics focus on basic ordering, for it presumes that information shortfalls, subjective value, and changing resource uses all make it prohibitively difficult for legal actors to identify the highest and best uses of resources in conflict. In such constraints, the tort principles that regulate sparks disputes should be designed around simple and clear property boundaries, so that railroad operators are strictly liable for fires caused on land owners’ lots by sparks from their trains.
This basic Austrian critique may be applied in other, more recent, and more complex fields of regulation. If scholars hope to expose a wider audience of legal scholars to this critique, however, they must integrate Austrian themes better into the normative frameworks and scholarly categories applied by legal scholars.
Monday, October 12, 2015
Nikole Hannah-Jones does some reporting for Grist:
It would seem that white residents moving into segregated black and brown neighborhoods can only be positive for local schools, though, right? Those wealthier families’ tax dollars must be, at least, invested in neighborhood schools. And when those families send their children to these schools, it has to improve the school services, which are then shared with their new neighbors, no?
Except, they aren’t.
[...] “There are many ways to opt out of the neighborhood schools and gentrification has a limited effect on public schools,” said Mincere Keels, a University of Chicago professor, who focuses on race and inequality. “Many of the policies of urban education are focused around bringing upper-income families back into the public school system based on the assumptions that they will come into these neighborhoods and invest in the neighborhood schools and revitalize both the neighborhoods and schools,” she said. “But families that move into neighborhoods that are low-income often opt out of the neighborhood schools and these higher income families take their individual household resources with them and contribute them to” other schools.
Samantha Hepburn (Deakin University - Australia) & Steve Jaynes (Deakin) have posted The Nature and Scope of Rights of Removal (Property Law Review) on SSRN. Here's the abstract:
The rationale underlying the fixtures and accession presumptions is the need to protect the value of the chattel as well as the need to protect third-party interests. The destruction of the independent legal status of an attached chattel is generally deemed appropriate where the value of the co-mingled asset will be diminished if the chattel retains a separate legal title and this would generate unfairness because third parties have dealt with the co-mingled asset on the basis of its overall value. Rights to remove have evolved under both common law and equity to moderate the scope of these presumptions. Common law will uphold the right of a tenant to remove chattels that have been attached to leased premises during the currency of the lease. Equity on the other hand will uphold the right to remove affixed chattels in circumstances where the enforcement of such an entitlement is consistent with contractual intention and transactional fairness. This article examines the different rights of removal that have evolved under Australian law to date and the emergent statutory framework supporting these rights. It discusses the historical purpose and structural utility of these entitlements within a land framework that supports fixtures presumptions. Rights of removal, whether validated at law or in equity, confer positive entitlements upon the holder to access and remove affixed goods in circumstances where, because of the fixtures and accession presumptions, those goods no longer retain any separate legal status. The capacity of the holder to enforce this right against third parties is illustrative of their distinctive proprietary perspective.
Lee Fennell (Chicago) has posted Co-Location, Co-Location, Co-Location: Land Use and Housing Priorities Reimagined (Vermont Law Review) on SSRN. Here's the abstract:
This brief essay was delivered in slightly different form as the 2014 Norman Williams Distinguished Lecture in Land Use Planning and the Law at Vermont Law School. It begins with the premise that what matters most to a home’s value is not location, in the sense of a geographic map point, but rather co-location, or a home’s position relative to other land uses and land users. Although this proposition might seem obvious, taking co-location seriously can change the way we think about housing policy and about land use priorities more generally. A focus on co-location illuminates the significance of lumps or chunks of value that are produced by complementary uses, shows how land use policy can help achieve them, and highlights the conflicts that can arise among competing aggregations of value. I suggest some policy approaches that can leverage the power of co-location — from an expanded understanding of what land use decisions fall under the rubric of housing policy to the possibility of planning ahead for portability.
Friday, October 9, 2015
The University of Detroit Mercy Law Review is celebrating its 100th anniversary with an academic Symposium to be held on March 4, 2016. This Symposium will showcase the past, present, and future of the City of Detroit, and will gather scholars, policy makers, and community members to discuss the past, present, and future of Detroit.
Articles submitted may focus either on a specific era – past, present, or future – or they may trace a specific subject through the past, present, and propose future solutions. Specific topics could include, but are not limited to:
o Civil rights and race relations
o Labor law
o Relationship between the City and the suburbs (or the rest of Michigan)
o The Impact of the Bankruptcy
o Efforts to eradicate blight and abandoned buildings o Public Education in Detroit
o Impact of new developments on the future of Detroit
o Relations between the City and the suburbs
o The role of the law in developing new economic opportunities
The Law Review invites interested individuals to submit an abstract for an opportunity to present at the Symposium. Those interested should send an abstract of 250-300 words that details their proposed topic and presentation. Included with the abstract should be the author’s name, contact information, and a copy of their resume/curriculum vitae. Since the above list of topics is non- exhaustive, the University of Detroit Law Review encourages all interested parties to develop their own topic to present at the Symposium. In addition, while submitting an article for publication is not required to present at the Symposium, the Law Review encourages all speakers who are selected to submit a piece for publication in the Fall 2016 edition of the Law Review.
The deadline for abstract submissions is October 26, 2015. Individuals selected to present at the Symposium will be contacted by November 2. Law Review editorial staff will contact those selected for publication at a later date regarding details and deadlines for full-length publication.
The submissions, and any questions regarding the Symposium or the abstract process, should be directed to Law Review Centennial Symposium Director Katherine Ross at email@example.com.
Gentrification of inner-cities has resulted in a class conflict over urban space. An issue in the federal courts is whether the Department of Housing and Urban Development (HUD) can build, sponsor, or subsidize low income housing projects within or near revitalized neighborhoods. In Stryker’s Bay Neighborhood Council v. Karlen, the United States Supreme Court held that HUD’s decision-making process relating to the placement of low income housing is beyond judicial review. This Article reviews recent litigation in Philadelphia, Chicago and Boston in light of Stryker’s Bay, and concludes that in order to protect federal efforts to maintain the integrated character of inner-city neighborhoods, HUD must amend its regulations to deal with the reality of gentrification. HUD should define gentrified areas and recognize that such areas are ideal for integrated housing, so that the federal courts do not have to step in, resulting in delay.
James Burling (Pacific Legal Foundation) has posted Novel Takings Theories: Testing the Boundaries of Property Rights Claims (Brigham-Kanner Property Rights Conference Journal) on SSRN. Here's the abstract:
A lot of what passes for standard takings theory today would have been summarily rejected a generation or two ago. Who could have complained when the government showed up with trucks to haul off half of a farmer's raisins? Who could dispute the government's right to demand tribute in exchange for a permit? Or, who could not argue that there's been a taking when the government sends a satellite over one's home? The point is, today we're pretty sure the first two examples are takings, but the last one is not. But how do we distinguish the novel yet viable theories from the frivolous?
This paper argues that novelty in takings claim can be good and transformative -- but only when 1) there are good and sympathetic facts to lay bare the realities of the burdens imposed by government regulation on ordinary citizens, 2) there are some well-honed theories in support of government liability and 3) there is some intellectual respectability for those theories.
Hart Publishing has recently put out Modern Studies in Property Law - Volume 8, edited by Warren Barr. The synopsis from the publisher:
This book contains a collection of peer reviewed papers presented at the tenth biennial Modern Studies in Property Law conference held at the University of Liverpool in April 2014. It is the 8th volume to be published under the name of the conference. The conference and its published proceedings have become an established forum for property lawyers from around the world to showcase current research in the discipline. This collection reflects the diversity and contemporary relevance of modern research in property law. Incorporating a keynote address by Sir John Mummery, retired Lord Justice of Appeal, on ‘Property In The Information Age’, a number of chapters consider the contribution of property law to issues central to the human condition; the home, health and death. Other papers illustrate an enduring need to question and explore fundamental concepts of the subject as well as to consider the challenges of reforming the law. Collectively the chapters demonstrate the vibrancy and importance of property law in dealing with modern concerns across the common law world.
Wednesday, October 7, 2015
HYDROPOWER AND THE ENERGY OF THE FUTURE: IS THERE A PLACE FOR DAMS?
The Idaho Law Review solicits articles and topic submissions for the Fall 2016 Natural Resources and Environmental Law (NREL) Edition. In this third annual NREL Edition, the Idaho Law Review will explore the future of hydropower as an energy source, with a particular focus on whether dam removal is realistic and responsible. Specific topic ideas include the wisdom, or lack thereof, of dam removal, the legal and policy challenges from social, ecological, and economic perspectives, the ecological impacts of dams or dam removal, potential replacement for hydroelectric energy generation in the Pacific Northwest, tribal perspectives on dams or dam removal, or case studies examining the successes or failures of dam removal projects already completed. Other topic ideas related to hydropower, dam removal, or the future of energy without hydropower would be welcomed and encouraged.
The NREL Edition of the Idaho Law Review is one of few formally peer-reviewed law-journal publications, with all articles undergoing review by outside experts in the tradition of academic scholarship. Articles should be submitted by April 1, 2016 to allow time for outside review before our December 2016 publication. Preferred length is approximately 10,000 words. We request written commitments to submit, with topics identified, by December 31, 2015.
For topic submissions or questions, please contact Idaho Law Review 2015-2016 NREL Editor Patrick Johnson at: firstname.lastname@example.org, or Professor Jerrold Long at email@example.com. Our first peer-reviewed NREL Edition (Vol. 51, Issue 1) can be viewed at http://www.uidaho.edu/law/law-review/articles.
Things in Baltimore public housing sound pretty awful:
A young single mother arrived at Gilmor Homes in 2008 after fleeing an abusive relationship. She says she quickly found herself in another.
The woman, and six others, allege in a federal lawsuit filed Monday that maintenance men at the Baltimore public housing project traded sexual favors in return for much-needed repairs. The young mother felt like she had no choice but to give in to the demands of a Gilmor Homes' maintenance employee.
[...] "These victims are too poor to move out and relocate their families. Consequently, they are left with the impossible choice of either succumbing to unwanted sexual demands in order to save themselves and their children from life-threatening conditions in their homes, or, living in squalor," the suit reads.
The women claim that HABC ignored numerous complaints and allowed the alleged abusers to stay in positions of power. They are seeking some $10 million each in damages.
Michael Blumm (Lewis & Clark) & Kara Tebeau (Lewis & Clark) have posted Antimonopoly in Public Land Law on SSRN. Here's the abstract:
Public land law is often thought to be divided into historical eras like the Disposition Era, the Reservation Era, and the Modern Era. We think an overarching theme throughout all eras is antimonopoly. Since the Founding, and continuing for over two-and-a-quarter centuries into the 21st century, antimonopoly policy has permeated public land law. In this article we show the persistence of antimonopoly sentiment throughout the public land history, from the Confederation Congress to Jacksonian America to the Progressive Conservation Era and into the modern era.
Antimonopoly policy led to widespread ownership of American land, perhaps America’s chief distinction from England and Europe. The policy fostered acreage limits in federal grants, a preference for bona fide settlers, and eventually an evolution from land sales to free land under the Homestead Act. Antimonopoly principles were also present in public timber, mining, and rangeland policies from the earliest days. In the Progressive Conservation Era antimonopoly fueled a public land withdrawal and reservation movement, landmark leasing and licensing programs that maintained public control over fuel minerals and waterways, and the first explicit federal policy concern over future generations. The modern era has seen the codification of multiple use management, the enactment of comprehensive land planning statutes, and the rise of multi-species concerns, among other antimonopoly policies.
Although antimonopoly policies seem to be under some threat from recent Congresses, a turn toward monopoly would amount to a renunciation of centuries of public land policy. This history strongly counsels against such these proposals as, however imperfectly realized on-the-ground, antimonopoly has been always been cardinal feature of public land law and policy and is deeply embedded in the nation’s identity as a reflection of republican values of individualism and equal opportunity.
Jim Donovan (Kentucky) has posted Half-Baked: The Demand by For-Profit Businesses for Religious Exemptions from Selling to Same-Sex Couples (Loyola LA Law Review) on SSRN. Here's the abstract:
Should bakers be required to make cakes for same-sex weddings? With the announcement of a constitutional right to same-sex marriage in Obergefell, one of the next confrontations in the struggle for expanded equality will involve the demand for religious exemptions from nondiscrimination laws in the public marketplace. The present discussion unravels the eclectic arguments that are repeatedly offered in support of such an exemption. The initial feint invokes a fundamental right to exclude, which fails for two reasons. First, the right to exclude is a fundamentally racist rule devised to prevent African-Americans from participating in free society. Rather than attempt to revive it in order to likewise bar gays from the marketplace, the rule should be reset to the antebellum standard of free access to all public places of commerce. A second effort defending discrimination on conduct like marriage rather than status such as sexual orientation has found no positive reception in the courts.
The principle legal conclusions are twofold. First, although free speech defenses have been easily rebuffed, the possibility of a coerced speech defense that has been contextualized to the receiving audience and read against the background social norms should be recognized. Messages arise when actions cut against stereotyped expectations as they currently stand. To evaluate a forced speech claim we must know what are the routine understandings of same-sex marriage within the relevant community. Only then can a court ascertain whether the service provider has been asked to send a message about same-sex marriage against its will.
The free exercise claim presents a less likely chance of success, especially in states without a RFRA law. In those settings the court will analyze the religious exercise argument under the Smith criteria which invariably find the contested nondiscrimination law to be of enforceable general applicability. In jurisdictions that have enacted a local version of RFRA, it is unclear how judges will assess the government’s compelling interest to prevent sexual orientation discrimination. That analysis will involve a description of the harms threatening both sides of the conflict. While the injuries arising from the violation of sincerely held religious beliefs are to be assumed, the dignitary harms to the same-sex couple should not be mischaracterized and trivialized as a “minor inconvenience.”
For those that insist on concessions to the demand for religious exceptions, the most defensible compromise approach may carve out a small group of professionals who exercise “editorial judgment” in the same manner as the courts have described for newspapers.
Monday, October 5, 2015
Bret Wells (Houston) has posted The Dominant Mineral Estate in the Horizontal Well Context: Time to Extend Moser Horizontally (Houston Law Review) on SSRN. Here's the abstract:
Today’s horizontal wells are radically different in legally relevant ways from traditional vertical wells. Horizontal wells are now being drilled with a horizontal drainhole extending more than a mile away from the drill site. These horizontal wells often have multi-stage completions that allow operators to obtain production from multiple tracts traversed by the horizontal wellbore. From a single surface location, a horizontal well can be fractured in more than twenty-five stages and require the use of up to six million gallons of water per horizontal well. Thus, unlike vertical wells, the surface well site for today’s horizontal wells can concentrate numerous separate horizontal wells onto one well site location. Each of these horizontal wells that are concentrated onto this single surface well site in turn can produce from multiple different production points including off-tract production points that are horizontally displaced a great distance away from the surface well site. The servicing work at this concentrated surface well site location, including the handling of millions of gallons of flow-back waste water from the multi-stage hydraulic fracturing required to complete each of these horizontal wells, often is more intensive at this concentrated well site location than what was typically required at a surface site that possessed only a single vertical well drilled in a conventional formation. The Texas Supreme Court signaled in Key Operating & Equipment, Inc. v. Hegar that it is willing to reformulate historic doctrines to better address surface usage issues. As a result, given the Texas Supreme Court’s recent statements in Key Operating and Equipment, Inc. v. Hegar, the explosive growth in horizontal drilling in unconventional shale formations, and the Texas Supreme Court’s historic willingness to reformulate historic oil and gas doctrines (as evidenced by its opinion in Coastal Oil & Gas v. Garza) to ensure that justice and sound public policy outcomes are achieved, it is appropriate to re-examine the doctrine of the dominant mineral estate to ensure that the manner of its application in the horizontal well context promotes the state’s public policy goals of ensuring the efficient development of the state’s finite natural resources while, at the same time, affording equitable outcomes to surface owners burdened by these on-site horizontal drilling activities. To this end, in order to better achieve sound public policy outcomes while providing an equitable outcome to surface owners, this Article proposes a new common law principle for horizontal wells and argues that the Texas Supreme Court should adopt it.
Eyal Benvenisti (Tel Aviv) has posted Sovereignty and the Politics of Property on SSRN. Here's the abstract:
When economic markets became global at the end of the Cold War, so did the political markets: property rights increasingly became defined by international agreements, by decisions of international organizations, and by the exercise of “low politics” in foreign, weaker states. The global political markets were dominated by the executive branches of a handful of relatively strong states that, in turn, were responsive to the “low politics” of special interests. The high transaction costs of cooperation among diffuse owners inhibited the parallel rise of “high politics” at the global level. The skewed global political market for property continues to favor special interests, but there are budding attempts to reclaim the space for “high politics” by national regulators and courts. Current negotiations over the so-called “Mega Regional” agreements between the U.S. and its trading partners will, if successful, nip these buds as they render certain property rights almost immune to the subsequent challenges of high politics.
Friday, October 2, 2015
Kerry Klein discusses the end of the Land and Water Conservation Fund:
For three years, conservation groups have been warning lawmakers about the expiration of the Land and Water Conservation Fund, a program that provides grants to buy up private land and make it available to the public. Since President Johnson signed it into law in 1964, the LWCF has pumped almost $17 billion into federal, state, and local parks. It has protected more than 500 million acres of land, ranging from neighborhood playgrounds to dramatic basalt cliffs in the Columbia River Gorge National Scenic Area. The program also paid for almost two-thirds of the Appalachian Trail. The LWCF did all this without costing taxpayers a dime: It’s funded entirely by royalties from the offshore oil and gas industry, a symmetry that conservation advocates have lauded.
But members of Congress who oppose the program’s renewal say the LWCF prioritizes federal projects too much. Rep. Rob Bishop, a Republican from Utah who chairs the House Natural Resources Committee, is one such critic. “Under my chairmanship, the status quo will be challenged,” he wrote in a statement last week. “Any reauthorization of LWCF will, among other improvements, prioritize local communities as originally intended.”
Eduardo Penalver has a very thoughtful review of Ilya Somin's new book, The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain:
In light of the political ambivalence of the redevelopment takings issue, perhaps it is not surprising that I find a great deal to like in Somin’s book. It is both thoughtful and scholarly. Somin avoids the rhetorical excess characterized by a great deal of the popular commentary on Kelo. His bottom line is that, even though the case was consistent with longstanding precedent, it was wrongly decided because the earlier cases (and therefore Kelo as well) deviate from the original meaning of the Takings Clause. More specifically, because the Takings Clause is understood to apply against the states only through “incorporation” into the Due Process Clause of the Fourteenth Amendment, it deviates from the original meaning of the Takings Clause at the time of the Fourteenth Amendment’s ratification.
Setting aside debates about the merits of originalism itself (and the puzzle of the originalist status of incorporation doctrine), the problem for Somin’s argument, as he frankly acknowledges, is that there is very little evidence concerning what the original public meaning of the Takings Clause actually was in the late nineteenth century.
From here, Penalver's review really digs into Somin's view of property rights and his brand of libertarianism. Worth reading.
Amnon Lehavi (ICH - Radzyner) has posted Property and Secrecy on SSRN. Here's the abstract:
Real estate ownership is conventionally viewed as a clear matter of public record. Yet purchasers of real estate are increasingly employing legal techniques to preserve their anonymity by registering their properties through trustees or opaque shell companies. This turn of events calls for delineating the appropriate boundaries of secrecy in property.
The Article identifies primary contexts in which the issue of secrecy comes up in the law, including in financial and proprietary settings, such as secret trusts or undisclosed accumulation of shares in public corporations. It then underscores the unique features of secrecy in real estate. It offers an innovative analysis of the ways in which anonymous property holdings might generate externalities for various types of stakeholders, from central and local governments up to neighboring property owners in both their individual and collective capacities, such as in a homeowner association. The analysis establishes normative criteria for requiring property owners to disclose relevant details. It calls, however, to distinguish between a duty to provide information and the operative results of such disclosure in regard to interested parties’ capacity to act on such information.
This Article argues that, somewhat counter-intuitively, an elaborate discussion of the proper limits to the interest in secrecy would challenge prevailing forms of exclusion and other types of defensive or offensive tactics against “unwelcomed neighbors,” whenever such practices have no normative merit. The discourse on secret real estate holdings would therefore shed broader light on the underlying societal features of ownership.
Danaya Wright (Florida) has posted Doing a Double Take: Rail-Trail Takings Litigation in the Post-Brandt Trust Era (Vermont Law Review) on SSRN. Here's the abstract:
After providing a brief explanation of railroad development, railbanking, the takings cases, and the Brandt Trust decision, this Article will explore the implications of each of these three legal issues at the heart of the takings disputes. What makes the decision in Marvin M. Brandt Revocable Trust v. United States particularly disappointing is not that the Court came to the wrong conclusion in its interpretation of the railroad’s interest in federally granted railroad rights of way (“FGROWs”) granted pursuant to the 1875 General Railroad Right of Way Act, but that its wrong interpretation adds all of the 1875 Act FGROW lands to the class of potential takings cases that already suffer serious legal and logical infirmities. The Court’s hasty decision simply compounds the disastrous effects of the Court of Federal Claims’ already disastrous takings jurisprudence in this area.