Monday, September 22, 2014
Lisa Alexander (Wisconsin) has posted Occupying the Constitutional Right to Housing on SSRN. Here's the abstract:
The United States (U.S.) does not recognize a formal legal right to housing. Yet, the right to housing is alive in America. Using qualitative interviews and case studies, this article is the first to argue that recent housing rights movements in the U.S., such as the Occupy movements, instantiate a constitutional right to housing in America through private ordering and local law reform, rather than through constitutional adjudication or federal and state legislation. These social movements manifest the right to housing in America when they mobilize through online social networks; occupy and retain vacant and real estate-owned homes; defend home owners and renters from evictions and foreclosures; encourage municipalities to use eminent domain for principal reduction and property acquisition; and create micro-homes for the homeless. Their legal successes reformulate local property law, increase Americans' acceptance of legal arrangements that reflect the right to housing, and advance well-accepted constitutional norms. This article contributes to the popular constitutionalism debate by arguing that social movements can create constitutional meaning through private and local law reform, as well as through constitutional amendments, constitutional adjudication and federal and state legislation. This article also contributes to law and social movement scholarship by outlining how the Internet and social media help these movements avoid the pitfalls of legal mobilization and develop more flexible, informal and democratic organizing structures. Finally, these case studies demonstrate new ways social movements can shape American constitutional law and property law in the Internet Age.
Friday, September 19, 2014
The Atlantic chronicles the story of Douglas Tompkins--the founder of North Face--who has used his vast fortune to buy up huge swaths of Argentina and Chile. Tompkins insists that he's preserving the nature wonder of the land but many local remain skeptical:
No one seems to believe what Doug Tompkins and his wife, Kris, are actually doing: They have purchased enough land in Chile and Argentina to equal an area the size of nearly two Rhode Islands, and they plan to donate these ice-coated peaks, red-rock canyons, and coastal volcanoes to the respective governments in the form of national parks. They have protected more land than any other private individuals in history.
[...] Fifteen years ago, in the June 1999 issue of The Atlantic, William Langewiesche wrote about Tompkins’s first major venture into conservation in Chile, describing both Tompkins’s idealistic vision and the infamy that had already shrouded him. The hostility only has only grown as his conservation empire has expanded. Rumors now range from the conspiratorial to the phantasmagorical: Tompkins is creating a second Israel in South America; he is siphoning off the world’s last freshwater resources for other American millionaires; he is building bunkers for a pending nuclear war.
Jim Kelly (Notre Dame) has posted Just, Smart: Civil Rights Protections and Market-Sensitive Vacant Property Strategies on SSRN. Here's the abstract:
This essay, prepared for and published by the Center for Community Progress, a national, non-profit intermediary dedicated to developing effective, sustainable solutions to turn vacant, abandoned and problem properties into vibrant places, examines the legal and normative implications of local governments' use of neighborhood real estate market data to strategically focus vacant property remediation tools. I and other writers, such as Frank Alexander, Alan Mallach and Joseph Schilling, have argued for the importance of understanding the economic feasibility of market-based rehabilitation of derelict, vacant houses in making decisions as to how and when to use a variety of code enforcement, tax foreclosure and land banking mechanisms.
Part I of this essay explains how treating vacant properties in similar states of disrepair differently because of the condition of the properties around them appears to constitute, at least in the short term, vigilant support for healthy neighborhoods and acquiescence to continuing decline in more distressed areas. Because the distressed areas in many of the cities dealing with long-term vacant property problems are far more likely to have high percentages of African-American residents, the first part examines the scope and evidentiary standards of the relevant civil rights law, including the Fourteenth Amendment's Equal Protection Clause, 42 U.S.C. §1982 and the Fair Housing Act.
Part II concludes by outlining recommendations for local jurisdictions looking to create a substantively just and legally compliant approach to vacant property remediation that takes advantage of market-sensitive strategies.
Wednesday, September 17, 2014
The Economist elaborates:
CHEER any Indian leader who takes on the taboo of public hygiene, one of the country’s great problems. Narendra Modi, India’s prime minister, says building toilets is a priority over temples. His finance minister, Arun Jaitley, used this month’s budget to set a goal of ending defecating in the open by 2019. That will be 150 years since the birth of Mohandas Gandhi, who said good sanitation was more important than independence.
Ending open defecation would bring immense benefits. Some 130m households lack toilets. More than 72% of rural people relieve themselves behind bushes, in fields or by roadsides. The share is barely shrinking. Of the 1 billion people in the world who have no toilet, India accounts for nearly 600m.
The costs are high. Public safety is one underappreciated problem, as young women have to leave their rural homes after dark. In May two teenage girls in Uttar Pradesh visiting a field used as a communal toilet were raped, murdered and strung up from a tree. That case won notoriety for its extreme barbarity, but similar attacks are distressingly common.
A broader matter is public health. Open defecation is disastrous when practised by groups in close contact with each other. Because India’s population is huge, growing rapidly and densely settled, it is impossible even in rural areas to keep human faeces from crops, wells, food and children’s hands. Ingested bacteria and worms spread diseases, especially of the intestine. They cause enteropathy, a chronic illness that prevents the body from absorbing calories and nutrients. That helps to explain why, in spite of rising incomes and better diets, rates of child malnourishment in India do not improve faster. Unicef, the UN’s agency for children, estimates that nearly one-half of Indian children remain malnourished
Mary Szto (Hamline) has posted Real Estate Agents as Agents of Social Change: Redlining, Reverse Redlining, and Greenlining (Seattle J. for Soc. Just) on SSRN. Here's the abstract:
This article examines the role of US real estate agents in redlining, reverse redlining, and greenlining practices. Redlining was the practice of the Federal government, private banks, and other institutions to deny credit to neighborhoods based on race. Reverse redlining is marketing inferior credit and other products to those same neighborhoods. Greenlining is incenting investment in previously redlined neighborhoods. This article argues that although many real estate agents used practices that unjustly excluded access to neighborhoods, all can be faithful agents of inclusion to global, flourishing communities. That is, while real estate agents took leading roles in redlining and reverse redlining in the past, they can now lead in greenlining efforts. Moreover, those who want to effect greater access to global flourishing communities should consider becoming real estate agents.
Tuesday, September 16, 2014
At least in New York (the full story has some nice graphics):
Since 2007, New York City has added 31 miles of protected bike lanes — that is, lanes protected by a physical barrier, such as a row of parked cars or a curb.
The main point of building protected lanes was to make biking in the city safer. But when the NYC Department of Transportation recently studied the impact of the lanes, they found a secondary benefit: on several different avenues in Manhattan, the lanes actually helped speed up car traffic.
[...] So how did the bike lanes speed up traffic? It seems that two factors were important.
One is that, for the most part, driving lanes weren't actually eliminated when they bike lanes were built — they were simply narrowed. Additionally, the design of the bike lanes included a dedicated left-turn lane at most intersections, allowing cars to wait to turn left without holding up traffic.
Uma Outka (Kansas) has posted Intrastate Preemption in the Shifting Energy Sector (Colorado Law Review) on SSRN. Here's the abstract:
The U.S. energy sector is in a state of transition, at once moving toward cleaner energy resources, but also expanding the use of fossil fuels with new access to oil and gas plays. Although federalism concerns have dominated the literature, I argue here that the state-local relationship and intrastate preemption are shaping energy policy in important and under-examined ways. The energy transition to date has been marked by growth centered on hydraulic fracturing (fracking) and commercial wind development, both of which are mostly regulated at the state level. Local governments have exerted authority over both forms of energy production, although state-local tensions in the fracking context have been especially pronounced. Hundreds of localities have opposed or sought to contain the effects of fracking through official action, including bans and moratoria.
This striking trend, considered alongside local responses to wind development, provides a fresh lens through which to assess the role of intrastate preemption in the shifting energy sector. By approaching fracking and wind together, this Article represents a departure from the largely resource-segregated literature in favor of greater scholarly coherence on energy transition. As this Article explains, the doctrine of intrastate preemption, though it hews close to its federal analogue, is uniquely nuanced by the variability of state-local power structures. I develop the claim that the unpredictable legal environment resulting from this variability works to enhance the prospects for local governments, and even more localized property interests, to inform national energy discourse.
Monday, September 15, 2014
Dave Weigel, writing for Slate, has a well-balanced look at the work of the Institute for Justice in Philadelphia. Why the IJ has its hackles up:
The Institute for Justice filed its lawsuit after months of observing the courtroom, four years after it published a report on how civil forfeiture meant “property is guilty until you prove it innocent,” two years after Philadelphia City Paper reporter Isaiah Thompson published a lengthy investigation of the process, and one year after a blockbuster New Yorker piece about forfeitures around the country. The basic argument, in the articles and in the lawsuit, was that Philadelphia’s use of forfeiture was wildly out of whack. Thompson’s reporting found that the city brought in “upwards of $6 million a year” from forfeitures, or about five times as much as Brooklyn. Those numbers, and Thompson’s subsequent reporting, are cited in the Institute for Justice’s filing.
“If you fail to show up in 478, they call your name, and prosecutor marks your case for default,” said the Institute for Justice’s lead attorney on the case, Darpana Sheth. She’d previously worked on a forfeiture case in Massachusetts, which the group had made famous—George Will even wrote a datelined column about it. “If you tell average people on the street how this works,” said Sheth, “it sounds so foreign to the American system, they can’t believe it.”
Jess Phelps (USDA) has posted 'Scarcely a Vestige of Antiquity Remains': Evaluating the Role of Preservation Easements in Protecting Historic Religious Architecture (Environmental Law Reporter) on SSRN. Here's the abstract:
Preservation of historic religious architecture has been one of the most controversial areas of regulatory preservation activity. Although regulatory options remain constitutionally permissible, efforts to protect historic religious properties have been limited by legislation and lack of political will. One alternative source of preservation intervention, however, has largely escaped notice - a quiet expansion in the use of preservation easements to protect significant historic religious architecture. This Article evaluates this expansion, providing the first meaningful analysis of how preservation easements protecting historic religious structures have attempted to balance preservation and religious freedom concerns, and assessing the relative success of these efforts to date.
Friday, September 12, 2014
A nasty dispute over new construction in a historic preservation district in Raleigh:
The Euclid Street home was first approved by the Raleigh Historic Development Commission nearly a year ago. But across-the-street neighbor Gail Wiesner appealed the decision, calling the home’s design “garishly inappropriate” for a historic neighborhood.
In a 3-2 vote, the city’s Board of Adjustment ruled in favor of Wiesner, putting the partially built house in legal limbo. As long as the Board of Adjustment ruling stood, Cherry and Gordon couldn’t finish construction, and they could have been forced to change the design or tear the structure down.
Reached Thursday morning, Cherry said Bushfan’s ruling is a huge relief. “We are very excited to get this behind us,” he said. “It’s our hope that this can be something that the Oakwood community and Gail and everyone involved can put behind us and move forward. It’s going to be important to heal a lot of divisions and come together as a community.”
Jessie Owley (Buffalo) & Tonya Lewis (Buffalo) have posted From Vacant Lots to Full Pantries: Urban Agriculture Programs and the American City (Detroit Mercy Law Review) on SSRN. Here's the abstract:
This Article builds on efforts to promote urban agriculture and remove legal and practical obstacles to its development. Specifically, we explore concerns regarding land tenure. Urban agriculture development can be retarded by uncertainties in landownership and agriculturalists’ land rights. We explore property tools that could be helpful to urban agriculturalists (both farmers and gardeners). One thing we learned quickly in our research is that the challenges (and therefore the most helpful tools) vary greatly by place. For this reason, we present examples of urban agriculture efforts across the United States to demonstrate the varying challenges that jurisdictions face and to detail which property law tools have effectively been put to use. Some of tools (like negotiating long-term leases or getting permits to farm city-owned land) are already in place. Others (like using self-help nuisance concepts) are more theoretical. What we find most intriguing and potentially widely applicable is the development of urban agricultural land trusts and uses of partial property rights like conservation easements and other servitudes. We end with a broader discussion of how land trusts and the property tools they have at their disposal serve to meet current urban agricultural needs.
Thursday, September 11, 2014
Amnon Lehavi (ICH - Radzyner) has posted Unbundling Harmonization: Public versus Private Law Strategies to Globalize Property (Chicago Journal of International Law) on SSRN. Here's the abstract:
The landscape of supranational institutions is highly diverse, defying a single concept of globalization. Some cross-border mechanisms aim at coordination, which would streamline the movement of capital, goods, services, and persons, but could leave intact a substantial layer of local legal ordering. Other supranational instruments aspire to achieve fuller-scale harmonization, placing more pressure on national legal systems to converge. The world-web of bilateral investment treaties may be viewed as settling for coordination, the European Union as increasingly seeking harmonization, and the European Convention of Human Rights as currently located midway.
In the context of property law, this Article argues that, somewhat counter-intuitively, the true challenge for supranationalism lies in bringing closer private law doctrines rather than public law ones. While countries in their sovereign capacity may at times resist subjecting their local regulatory powers to constitutional-like supranational property norms, they are often able to employ public law strategies that establish credible systems of cross-state commitments, while still enjoying a considerable margin of deference in exercising their sovereign powers. In contrast, moving toward a global system of private law property doctrines may require a deeper commitment to fundamental changes in local ordering, implicating core cultural, social, and economic attributes of national societies.
The Article identifies the particular challenges of devising supranational property norms in private law doctrines, such as retention of title or good faith purchase of stolen goods. As a functional matter, since such doctrines may affect an indefinite number of parties, who are often not tied by contract and cannot explicitly allocate risks involved with moving across jurisdictions, the level of uniformity required to avoid frequent legal clashes is much higher than that which typifies public law settings. As a normative matter, any change in private law doctrines must trickle down to social and cultural mechanisms so that it would be absorbed by heterogeneous crowds within and across national borders -- a formidable challenge given the slow pace of cultural change.
Wednesday, September 10, 2014
People magazine explains:
Rome wasn't built in a day, but erecting a beautiful barn in under 24 hours is no problem for the Amish community of La Rue, Ohio.
Teacher Scott Miller recently helped his Amish neighbors with a barn raising. Along with lending a hand in the process, Miller set up his camera to photograph the event. From 7 a.m. until 5 p.m., Miller's camera snapped away as the community created their newest building from the ground up.
At the end of the day, Miller had over 1,700 photos which he put together into the impressive time-lapse video above. The clip is an amazing example of what can be achieved with a little teamwork and dedication.
John Sprankling (Pacific) has recently finished The International Law of Property (Oxford University Press). Cribbing from the publisher's website:
Does a right to property exist under international law? The traditional answer to this question is no: a right to property can only arise under the domestic law of a particular nation. But the view that property rights are exclusively governed by national law is obsolete. Identifiable areas of property law have emerged at the international level, and the foundation is now arguably being laid for a comprehensive international regime. This book provides a detailed investigation into this developing international property law. It demonstrates how the evolution of international property law has been influenced by major economic, political, and technological changes: the embrace of private property by former socialist states after the end of the Cold War; the globalization of trade; the birth of new technologies capable of exploiting the global commons; the rise of digital property; and the increasing recognition of the human right to property.
The first part of the book analyzes how international law impacts rights in specific types of property. In some situations, international law creates property rights, such as rights in aboriginal lands, deep seabed minerals, and satellite orbits. In other areas, it harmonizes property rights that arise at the national level, such as rights in intellectual property, rights in foreign investments, and security interests in personal property. Finally, it restricts property rights that may be recognized at the national level, such as rights in celestial bodies, contraband, and slaves. The second part of the book explores the thesis that a global right to property should be recognized as a general matter, not merely as a moral precept but rather as an entitlement that all nations must honour. It establishes the components of such a right, arguing that the right to property at the international level should be seen in the context of five key components of ownership: acquisition, use, destruction, exclusion, and transfer. This highly innovative book makes an important contribution to how we conceptualize the protection of property and to the understanding that much of this protection now takes place at the international level.
Tuesday, September 9, 2014
It's happening in parts of North Dakota. A great read from the Atlantic:
The Bakken oil boom has brought rapid growth to many towns and cities in western North Dakota, including Williston, north of the Missouri River, and Dickinson, alongside Interstate 94. But Watford City, where the population has jumped from just 1,400 people six years ago to more than 10,000 today, has experienced a particularly dramatic shift in character. [...]
As the boom becomes big business, the question for those arriving to work and live in Watford City is what kind of home the place will become. So far, housing is often too hard to find or too expensive to afford. A two-bedroom trailer, for example, rents for $2,000 or more a month. So thousands of Watford City’s new residents—economic refugees from elsewhere in America—have brought camper-trailers with them. On the fringes of town, RV parks have sprung up on land that, only a year or two ago, was open pasture. Spots there go for more than $600 a month, even during the winter when hoses freeze and families take to using trash cans as toilets.
Matthew Turner (Brown - Econ), Andrew Haughwout (Fed. Reserve Bank - New York) , and Wilbert Van der Klaauw (Fed. Reserve Bank - New York) have published Land Use Regulation and Welfare (Econometrica). Here's the abstract:
We evaluate the effect of land use regulation on the value of land and on welfare. Our estimates are based on a decomposition of the effects of regulation into three components: an own-lot effect, which reflects the cost of regulatory constraints to the owner of a parcel; an external effect, which reflects the value of regulatory constraints on one’s neighbors; a supply effect, which reflects the effect of regulated scarcity of developable land. Using this decomposition, we arrive at a novel strategy for estimating a plausibly causal effect of land use regulation on land value and welfare. This strategy exploits cross-border changes in development, prices, and regulation in regions near municipal borders. Our estimates suggest large negative effects of regulation on the value of land and welfare in these regions.
Monday, September 8, 2014
The Journal of Real Property Law invites you to its 4th annual symposium,
“A Review: Peter Gerhart’s Property Law and Social Morality,”
at Texas A&M University School of Law
on October 24, 2014 from 8:00 A.M. - 2:00 P.M.
CLE Credit Pending
This symposium is dedicated to Peter Gerhart’s development of a single theory to ex- plain the relationship between common and private property and how that relationship is defined by social customs. The symposium will address both the theoretical underpinnings of Gerhart’s work and the real-world application of the ideas Gerhart sets forth. Substantive ideas shall include but are not limited to, nuisance law, environmental regulation, and the takings power.
KRISTEN BARNES (Akron), ERIC CLAEYS (George Mason), PETER GERHART (Case Western), BLAKE HUDSON (LSU), KALI MURRAY (Marquette), CHRISTOPHER SERKIN (Vanderbilt), & LAURA UNDERKUFFLER (Cornell)
The law school is honored to welcome these panelists, as well as Tony Buzbee, Esq., Managing Partner of The Buzbee Law Firm in Houston, TX, and member of the Texas A&M University Board of Regents, who will deliver the symposium’s keynote address.
Will Foster (Arkansas) & Andrea Boyack (Wasburn) has posted Muddying the Waterfall: How Ambiguous Liability Statutes Distort Creditor Priority in Condominium Foreclosures (Arkansas Law Review) on SSRN. Here's the abstract:
Intentionally or not, every state’s law regarding lien priority and post-foreclosure liability allocates risk between mortgage lenders and privately governed “common interest communities” (CICs), such as condominiums. When lenders secure their interests with mortgages on property within a CIC, the mortgages may compete against the CIC’s interests for primacy in the lien hierarchy. Modern state regimes typically delineate the respective rights of mortgagees and CIC associations according to lien-priority statutes. Older condominium-enabling statutes, however, do not address CIC lien priority directly and speak only to continuing joint and several liability for subsequent purchasers. These older and more ambiguous statutes do not indicate how state law intended to — or should — balance the competing interests of mortgage lenders and community associations. Today, these vague statutes present important and politically charged issues that merit legislative consideration and clarification. Furthermore, recent case law demonstrates that a plain-meaning construction of such an un-clarified statute can produce an outcome that is wrong as a matter of law and unwise as a matter of policy.
This article examines the problems of vague statutory provisions regarding assessment obligations and their effect on lien priority. It advocates for judicial interpretations that focus on the purposes and intent of these provisions while upholding basic lien-priority law, and it urges legislative clarification of the existing language.