Tuesday, April 5, 2016
Brian Lee (Brooklyn) has posted Emergency Takings (Michigan Law Review) on SSRN. Here's the abstract:
Takings law has long contained a puzzle. The Fifth Amendment to the U.S. Constitution requires the government to pay “just compensation” to owners of private property that the government “takes”. In ordinary circumstances, this requirement applies equally whether the property is confiscated or destroyed, and it also applies to property confiscated in emergencies. Remarkably, however, courts have repeatedly held that if the government destroys property to address an emergency, then a “necessity exception” relieves the government of any obligation to compensate the owner of the property that was sacrificed for the public good. Although the roots of this startling principle stretch back for centuries, existing literature offers neither a systematic analysis of the justifications that have been offered for the principle nor a developed normative account of what the correct approach should be. This Article seeks to remedy both of these significant gaps in the current understanding of takings law. The Article identifies three pivotal but commonly overlooked distinctions and explains how they interact to provide a general theory of compensation for emergency takings. First is a distinction among different roles that compensation may play in any given situation. Second is a distinction between two different types of “necessity,” each of which has a different normative implication. Third is a distinction among amounts of compensation that might be owed. Recognizing these distinctions in turn reveals why the main justifications of the necessity exception are unpersuasive, why courts nevertheless so often have been inclined to endorse that exception, and what the correct approach to emergency takings actually is: when the need to destroy property in an emergency is accompanied by grave constraints on the ability to pay compensation, then an obligation to pay “just compensation” for the destroyed property remains, but the amount of that compensation changes. Under such circumstances, what justice requires is partial compensation.
Sunday, April 3, 2016
As property law scholars we appreciate the immense importance of affordable housing. It provides tangible benefits like wealth-building and safety and security, as well as intangible benefits like a sense of dignity and self-fulfillment. The folks at the National Housing Conference and the Children's Healthwatch recently made a interesting contribution to the discussion about the benefits of affordable housing in their white paper titled "Housing as a Health Care Investment: Affordable Housing Supports Children’s Health."
Advocates and commentators have certainly noted in the past the health benefits related to housing. What makes this report particularly useful in that conversation is that it focuses on how housing impacts the health of children. Specifically, the March 2016 report focuses on the effects of pre and post-natal homelessness on a child's health:
Affordable and stable housing plays a critical role in supporting the health and well- being of children. Research from Children’s HealthWatch shows public investment in housing—including housing for homeless families and rental assistance for food-insecure families—improves the health outcomes of vulnerable infants and young children and lowers health care spending. * * *
Children who experienced pre-natal homelessness (i.e., their mothers were homeless during pregnancy but were housed after their birth) were 20 percent more likely to have been hospitalized since birth.
Children who experienced post-natal homelessness (i.e., their mothers were housed during pregnancy but were homeless when the children were infants and/or toddlers) were 22 percent more likely to have been hospitalized since birth.
Children who experienced both pre- and post-natal home- lessness were 41 percent more likely to have been hospitalized since birth. * * *
Homelessness is extremely harmful to the health of young children and leads to higher health care costs, a large share of which is paid by publicly funded health insurance. In 2014 an estimated 671,000 children age four or under had been homeless at some point or were born to a mother who was homeless when she was pregnant. Children’s HealthWatch estimated that these children, as a group, experienced 18,600 additional hospitalizations attributable to their experience of homelessness. The average cost of one hospital stay for an infant was $16,248 and $10,139 for a toddler age 1-4 years old in 2015. The estimated total annual cost of hospitalizations attributable to homelessness among children age four and under in 2015 alone were $238 million nationally, with more than half of those costs associated with hospitalizations of infants under the age of one.
The report concludes by offering a number of specific policy prescriptions in combatting the negative effects of pre and post-natal homelessness. We always think about homelessness as being a major barrier to a person's ability to be successful, but I found the report's expenditure focus on the homelessness of infants and children during their most critical stages of development to be particularly interesting, and very disturbing. This was especially so in the context of the increased cost of hospitalizations and health care expenses, which the larger market/government must internalize as a result.
Friday, April 1, 2016
Natalie Ram (Baltimore) has posted Book Review: Body Banking from the Bench to the Bedside (Harvard Law Review) on SSRN.
Troy Rule (Arizona State) has posted Drone Zoning (North Carolina Law Review) on SSRN. Here's the abstract:
The growing popularity of small civilian drones has generated a wide array of complex and unprecedented regulatory challenges. Many of these challenges, such as that of keeping drones away from manned aircraft, are matters that the Federal Aviation Administration (“FAA”) is clearly authorized and well equipped to address. However, several other drone policy challenges relate solely to drones’ potential to disrupt landowners’ privacy and to otherwise interfere with activities on the ground. The nature and severity of these conflicts often varies greatly depending on a drone’s specific location: drone uses that are welcomed in some city neighborhoods may be prohibitively disruptive in others. The FAA, a centralized federal agency, lacks the information and resources necessary to effectively regulate these inherently local drone use issues in every corner of the country. Recognizing this fact, states and cities are increasingly crafting their own drone laws. Soon, some municipalities might even find it beneficial to adopt drone zoning ordinances that specifically restrict where, when, and under what conditions civilian drones may fly within their jurisdictions. Unfortunately, the FAA has taken the position that it holds exclusive regulatory authority over nearly every aspect of civilian drone activity — a position that threatens to preclude the development of valuable state and local drone policies. What aspects of drone activity could be better regulated at the state or local level than at the federal level? And what principles should guide municipal governments as they craft drone policies for their own communities? This Article tackles these questions, highlighting the potential merits of greater state and local involvement in drone law and identifying foundational principles and concepts for the pioneering design of drone zoning ordinances.
Judith Koons (Barry) has posted Locational Justice: Race, Class, and the Grassroots Protest of Property Takings (Santa Clara Law Review) on SSRN. Here's the abstract:
Defining “locational justice” as the “where” of justice, this article takes the grassroots opposition to Kelo as its point of ignition. To consider how a populist movement may sustain hope for locational justice, the article is framed around a case study of a grassroots challenge to a city’s plans to “redevelop,” (i.e., eliminate) its historic African American community. Proposing that lessons from that struggle may be instructive to the post-Kelo protest movement, the article argues that locational justice may be advanced through racial and socioeconomic coalitions that seek political and economic participation in democratic processes, not simply through judicial or legislative protections of property rights.
Wednesday, March 30, 2016
Steven Eagle (George Mason) has posted Property Rights after Horne (NYU Journal of Law & Liberty) on SSRN. Here's the abstract:
This Article analyzes the Supreme Court’s 2015 decision in Horne v. Department of Agriculture, which extended to personal property rules regarding “physical takings” previously applicable only to real property. It considers how the majority and other opinions in Horne relate to substantive and procedural issues in regulatory takings jurisprudence. In particular, the Article asserts that Horne, in tandem with the Court’s 2013 decision in Koontz v. St. Johns County Water Management District, may be a basis for rectifying problems resulting from complexities emanating from Penn Central Transportation Co. v. City of New York and other takings doctrines.
Tuesday, March 29, 2016
Kate Elengold (American) has posted Structural Subjugation: Theorizing Racialized Sexual Harassment in Housing on SSRN. Here's the abstract:
This Article identifies and analyzes the structural forces that permit and ignore racialized sexual harassment in housing. Although scholarship on sexual harassment in housing is sparse, the existing research and resulting body of law generally advances a narrative focused on the female tenants’ economic vulnerability and violation of the sanctity of her home. The narrative advanced in scholarship and advocacy, along with the resulting jurisprudence, presents an archetype of a deviant male landlord abusing his authority to take advantage of women sexually who, because of their economic circumstances, have no alternatives. This Article terms it the “dirty old man” narrative. Drawing attention to the racialized sexual harassment that lies beneath the stock story for many African American female tenants, this Article dismantles that narrative. The purpose of the scholarship is two-fold. The first is to expose, for the first time, the undercurrent of racialized sexual victimization that is absent from the “dirty old man” narrative. To do that, this project methodically examines court filings in sexual harassment cases brought by the Attorney General under the federal Fair Housing Act and analyzes the entire body of federal and state court opinions assessing residential sexual harassment claims. The second objective is to identify the structural factors — cultural acceptance of the “Black Jezebel” myth, legal rights, access, and generational economic and racial hierarchies — that operate together to perpetuate racialized sexual harassment in rental housing, an analysis that draws on social science research, along with critical race, critical feminist, and intersectionality theories. This Article contends that those structural forces are the same factors that have operated to permit and hide the sexual subjugation of Black women in the private sphere throughout history — during slavery, as domestic workers, and in the present-day failure to prosecute sexual assault against Black women. Ultimately, it argues that the prevailing “dirty old man” narrative risks silencing both the individual stories of racialized sexual harassment at home and the larger conversation about the structural forces permitting and ignoring the abuse.
Wian Erlank (Stellenbosch) has posted Finding Property in New Places – Property in Cyber and Outer Space (Potchefstroom Electronic Law Journal) on SSRN. Here's the abstract:
The fields of virtual property and property in space are both new areas of property law that could not have been envisaged a hundred years ago. In both of these new fields, things and other objects of property are located in places that have not previously been considered capable of harbouring property in the traditional sense. New technological and societal developments have resulted in both the creation of property (in virtual worlds) and the ability to get to property (in space), and questions have to be asked about how property law can and will function in these new areas. This article discusses some of the important property questions posed by the creation of these new fields of property law. Although there is some correlation between the unique questions posed by the environments that these new areas of law deal with, each of the fields has some idiosyncrasies that are influenced to a large degree by the location of the property objects in each area. This article highlights these similarities, while simultaneously pointing out some of the main differences between them and traditional (Earth-based) property law.
Sunday, March 27, 2016
I want to take a moment to give a major plug to the American Bar Association's Real Property, Trust and Estate Law fellowship program. I am just finishing my second and final year of this fellowship, and it's been on the most rewarding experiences I've had since entering the academy. The goal of the fellowship is to give young lawyers (including law professors) the chance to work with and gain insight from practitioners in the field. Each fellow is assigned a mentor and a committee with which to work and put on programs, CLEs, webinars, write articles etc. for that substantive area. The areas range from land-use and gift/estate tax to mortgage lending and real estate transactions (and many more). For instance, I've had the pleasure of working with Wilson Freyermuth (Missouri), Tanya Marsh (Wake Forest), Shelby Green (PACE), Jim Smith (Georgia), Jim Durham (Dayton), Amy Hess (Tennessee) and Nancy McLaughlinn (Utah) in working on a number of projects, including the planning and coordinating of the monthly Professor's Corner webinar that so many of you are familiar with.
Overall I think one of the best aspects of the fellowship is that it provided an opportunity for me to stay connected to the practice of property law and to obtain resources in improving the experiential learning aspects of what I do in the classroom. And aside from the many excellent attorneys I've come to know and work with, there's a really superb group of academics who are heavily involved in the section's work. But, probably best of all, the fellowship funds your travel to two big section meetings a year (and in some pretty fun places, too: I went to Boston, DC, Laguna Beach, and Naples, FL during my time).
The fellowship is for a total of two years. In order to be considered, the applicant must (1) have practiced in the trusts and estates or real property area for at least one year, (2) be younger than 36 years of age or have been admitted to the bar less than 10 years, and (3) have demonstrated leadership at the state or local bar level or in the ABA Young Lawyers Division. The section is always looking for junior law professors to be fellows, so please consider applying. It was a really great experience that I highly recommend to everyone teaching in the field.
The application for the 2016-2018 fellowship class is not due until June 30, 2016 and can be accessed by clicking here.
Friday, March 25, 2016
Christine Klein (Florida) has posted a sample chapter from a new first-edition property casebook published last month by Aspen Publishers. Here's the blurb from the Publisher's website:
Property: Cases, Problems, and Skills offers a modern, skills-based approach to Property Law, and includes a balance of classic and new cases, tightly-focused skills exercises (including advocacy, drafting, client interviewing/counseling, and negotiation), selected statutory excerpts, chapter review problems (with answers provided in the Appendix for student self-testing), and other pedagogical features (such as discussion problems raising novel and modern challenges, “A Place to Start” doctrinal overview boxes, and “Reading Guide” boxes). The online teacher’s manual will provide answers to all questions posed in the text and suggestions for conducting the skills exercises (generally, during a group exercise that takes all or part of a single class session). The two-color text is visually appealing, with judicious use of photographs, text boxes, and pedagogical diagrams. Although the text does not take a “hide the ball” approach, it prods students to engage with the law’s complexity, ambiguity, and nuance.
Thursday, March 24, 2016
Archana Mishra (Jindal Global Law School) has posted Towards Women’s Equal Right to Property - Recent Judicial Developments in India on SSRN. Here's the abstract:
This article investigates the judicial activism in developing the Indian law of succession whereby laws have been interpreted to grant more property rights to Indian women. Tribal women who had been denied inheritance right under their customary laws have been constructively interpreted by courts to grant right in their favour. Issue with regard to applicability of coparcenary claim of Hindu daughter, granted to her under Hindu Succession (Amendment) Act, 2005, has now been finally settled by the Supreme Court of India. Applying legal maxims for recognizing the right of a Hindu widow to claim partition of her deceased husband’s share in coparcenary property, in absence of definite statutory right, is another judicial development. Construction of Hanafi law to grant inheritance right to a sister in presence of daughters of the deceased shows judicial approach of uplifting the position of women even under uncodified Muslim personal law. At the same time restricting the right of a Hindu daughter to claim her coparcenary right only after a certain date when no such limitation has been fixed for male coparcener shows clear discrimination on basis of sex. Further granting preferential rights to agnates over cognates under Hindu law appears to have no justification. Even after more than a decade of passing of Constitution, the court adopts a cautious approach in getting into the constitutional validity of personal laws. With the increase in social integration, economic independence, reform movements, there needs to be a further call for the improvement of the woman's position in Indian society.
Yun-chien Chang (Chicago) has posted Eminent Domain Law in Taiwan: New Law, Old Practice? (Book Chapter - Cambridge Press) on SSRN. Here's the abstract:
This chapter summarizes the latest (post-2012) eminent domain law in Taiwan. It focuses on the six pillars of takings law, namely public interest criteria, subjects of the eminent domain power, just compensation, due process, distribution of development surpluses, and the dispute resolution system. The 2012 reform brings along takings laws in books that are stricter than ever in terms of public interest and necessity analysis, but administrative courts typically defer to the administrative agencies’ judgments. Only government agencies and certain public legal persons can apply to the state to condemn. Just compensation now means payment of current market value, but the differences between how much condemnees receive pre- and post-2012 remain unclear. Procedural requirements regarding expropriation constitute an intricate web of rules. Nonetheless, in the process of negotiated purchase, local governments are often criticized for not bargaining in good faith. Thus, the due process requirement does not guarantee substantive equity or efficiency. Development surpluses go entirely to the state. The dispute resolution system consists of two or three levels of re-examination within the administrative branch before the condemnees can bring their cases to the administrative court. This chapter concludes with a policy recommendation that uses hedonic regression models to estimate land value for offers in the negotiated purchase stage and for the land value in the takings compensation stage.
Wednesday, March 23, 2016
Martin Dixon (Cambridge) has posted A Reformist Menu (Conveyancer & Property Law) on SSRN. Here's the abstract:
In the light of the UK general election, what land law related issues might be on a reform agenda?
Dixon has posted a slew of other works on his SSRN page from 2014 & 2015.
John Ruple (Utah) & Robert Keiter (Utah) have posted Alternatives to the Transfer of Public Lands Act (Stegner Center White Paper) on SSRN. Here's the abstract:
This White Paper is the fourth in a series addressing state efforts to take over federally managed public lands. We argue here that state time and resources would be better spent on collaborative efforts to improve resource management practices. Alternatives to litigation, like that threatened under Utah’s Transfer of Public Lands Act, are important because, as our prior work shows, Utah’s claims are likely to fail. The federal government is not obligated to dispose of additional public lands, and even if a disposal obligation were found to exist, such an obligation would not necessitate giving the land to the states. Furthermore, a state takeover of public lands would subject states to significant fiscal risk while likely reducing opportunities for public involvement in land management decisions. Faced with the prospect of a long, costly, and likely fruitless legal fight, states should consider other responses to what are, for many, sincerely held frustrations over the condition and management of our public lands.
This paper discusses five of the main problems that we believe give rise to the frustration driving the public lands transfer movement. We then present seven possible alternatives to demanding title to federal lands that we believe respond to these problems and that are likely to produce lasting and tangible land management improvements. Neither the list of problems, nor the list of alternatives, is exhaustive. While we identify what we see as key challenges and opportunities, others will undoubtedly add to our list. We hope that a productive dialogue over public land management policies and practices can grow from this effort.
Sunday, March 20, 2016
(Photo Credit: The Economist)
It's safe to say that much of the Bitcoin mania has settled down over the last few years, but that doesn't mean that there's nothing more to discuss. While most commentators and policy advocates state (and I believe rightly so) that Bitcoin and other cryptocurrencies will never truly come to displace (or even significantly compete) with fiat currencies, the true value that can be derived from the Bitcoin system is in fact the technology that underpins it: the blockchain. Joshua Fairfield (Washington & Lee) makes this case very compellingly in his recent article, BitProperty (give it a read!).
Now, before I go any further let me say that an explanation of how the blockchain works would take some serious time and even my best attempt would likely leave much to be desired. But lucky, like so many things in life, there's a YouTube video that explains it all! Take a look:
So why does any of this matter? Well, there's been a recent and strong interest by banks and financial institutions in how the blockchain system might be used to track ownership interests in property. The Economist did a story this past week about what some of these firms are up to:
It is easy to see why bankers get excited about distributed ledgers. Instead of having to keep track of their assets in separate databases, as financial firms do now, they can share just one. Trades can be settled almost instantly, without the need for lots of intermediaries. As a result, less capital is tied up during a transaction, reducing risk. * * *
[T]echnical hurdles can be overcome only with a high degree of co-operation between all involved. But this is not a given in the highly competitive world of finance. Some efforts are already under way. More than 40 banks now have a stake in R3 CEV, a startup meant to come up with shared standards. Similarly, firms including IBM and Digital Asset Holdings have started the Open Ledger Project to develop open-source blockchain software.
The Open Ledger Project may have trouble combining the bits of code its members contribute. Such problems will slow adoption, notes Tolga Oguz of McKinsey, a consultancy. Moreover, most projects are still “proofs of concept”. Only a few services have gone live. A dozen banks are using a firm called Ripple to process international payments cheaply. In August Overstock.com, an online retailer, announced a “smart-contract” platform, as did Symbiont, another startup. In January NASDAQ, a stock-exchange operator, launched Linq, a service that allows companies to issue debt and securities. It also plans to initiate a blockchain-based e-voting service for shareholders in firms listed on its exchange in Estonia.
Then there are more specialised services. Everledger uses a blockchain to protect diamonds by sticking data about a stone’s attributes on it, providing proof of its identity should it be stolen. Wave, another blockchain startup, encodes documents used in global supply chains, reducing the risk of disputes and forgeries.
More applications will pop up this year and next. Prime targets will be self-contained markets with complex products, many participants and convoluted procedures. One example is syndicated loans, which can involve dozens of lenders and which can take as long as a month to negotiate. Symbiont recently teamed up with Ipreo, another fintech firm, to automate such loans using smart contracts. Another tempting target is trade finance, which still requires lots of paperwork to travel around the globe along with the goods being sold.
For property law scholars, the emergence of the blockchain comes at an interesting time. There's a recent and fascinating article by Abraham Bell (Bar Ilan/San Diego) and Gideon Parchomovsky (Bar Ilan/UPenn) titled Of Property and Information that advocates for a renewed scholarly interest and debate on the importance of registries. As they note, "In the past, discussions of registries used to be a core topic in property classes and a focal point for property scholarship. In recent decades, registries have lost their luster for scholars, and their discussion has been relegated to the innermost pages of property textbooks. The reason for this is that registries are widely considered the domain of legal practitioners, not of theorists."
I agree with Bell and Parchomovsky and applaud their work on this topic. To that point, it strikes me that the move toward a distributed ledger system for the recording of interests in property has the potential to breathe new life into the academic exploration of the role that registries and information play in property law. And this move toward a "trustless ledger" system (HT: J.A. Fairfield) is not limited to merely intangible personal property like securities or credit rights. Rather, some countries are actually looking to move their entire paper-based land registry system to a blockchain model. Honduras is already in the process of working with a Texas company to build a permanent and secure land title registry system using blockchain technology! The possibilities are endless and ripe for scholarly commentary. More to come in this area, for sure!
Saturday, March 19, 2016
Today I will take a momentary break from my commentary on the remaining POTUS candidates to put a spotlight on a conference occurring this weekend at my home institution, Tulane University Law School. This weekend, Tulane is hosting the American Society of Comparative Law’s Younger Comparativists Committee Fifth Annual Global Conference. More than 100 young scholars (young meaning teaching for less than 10 years) from more than 80 institutions around the globe and from 6 different continents (try as I might, I could not find anyone from Antarctica) have descended upon New Orleans this weekend to discuss comparative law. There are 25 concurrent panels running throughout the weekend on topics such as comparative constitutional law, international arbitration, comparative criminal justice and criminal law, human rights, sex and comparative law, teaching comparative law . . . the list goes on and on.
The main plenary panel at the conference is on a topic that blog readers will enjoy: Comparative Property Law. Two of the papers being presented on the panel have been written by scholars from outside the United States who do not get as much advertisement on this blog. Thus, here is a chance to shine some light on the great comparative property law research being done across the globe.
Luigi Bruno (McGill University) is presenting his article today, E Pluribus Unum: Simplifying Complexity in Secured Credit. Luigi writes that as lawmakers recognize the importance of access to credit for development, countries are reforming laws to ease the getting credit process. The global movement towards secured credit legal regimes has had the effect of producing legal harmonization. Luigi notes that most of the literature on the topic thus far has looked at the process of legal harmonization, but his article strives to study the deeper aspect of the legal transplantation phenomenon that has accompanied the global move toward implementing secured credit legal regimes that conform to particular rules. Luigi writes,
This paper proposes to do so by using the concept of cultural specificity of the law as a point of departure to inquire deeper into the phenomenon. By means of a historic, economic and sociologic contextualisation of the birth and development of secured credit laws across legal families this thesis will question if legal transplantation in the field is actually possible. The analysis will then look at some of the possible negative outcomes generated by such practice. In particular, through a detailed reconstruction of reform processes in France, Belgium, Italy and Quebec, the paper will try to show important traits related to the issue at stake – traits that, hopefully, will also lay the foundation for subsequent research.
Sara Gwendolyn Ross (Osgoode Hall Law School) is also presenting her paper, Protecting Urban Spaces of Intangible Cultural Heritage and Nighttime Community Subcultural Wealth: A Comparison of International and National Strategies, the Agent of Change Principles, and Creative Placekeeping. Sara’s interest in this paper is on determining how legal frameworks that govern city space, such as zoning restrictions, urban planning policies, etc., operate within the real world of a neighborhood. Sara uses both anthropologic and geographic methodologies to assess how cultures and subcultures exist alongside city space regulations that may be consistent with or in conflict with the particular culture or subculture. Her objective in doing so is to discover how to simultaneously and equitably value cultural sustainability and city redevelopment. In particular, Sara focus on Toronto’s culture-based development practices as applied to its Music City aspirations. As Sara writes,
A focus on equitable treatment of different iterations of culture, cultural practices, and the spaces where these are found will be approached through a discussion of community subcultural wealth, use-value of urban spaces and properties, and the importance of a buen vivir (or a “good life”) in the city. This paper will additionally zoom out of the local governance of municipal space and property, and turn to international legal frameworks available for the protection of intangible culture, cultural practices, and the associated spaces of cultural practice and high subcultural community wealth, such as spaces of music culture, beyond a focus on their promotion where potential economic benefits are a result. Examining these international legal frameworks will lead to the suggestion that they remain under-utilized at the local city-level where culture plays out on the planes of everyday life in the city.
Luigi and Sara are two younger scholars doing great work in comparative property law. While the Younger Comparativists are at Tulane this weekend, I wanted to take the opportunity to give them a shout out and shine a spotlight on comparative property law.
Don’t worry—next week we begin looking at the views of Hillary and Bernie on eminent domain. And once that’s finished, I will be starting up a series called WWMGD? What Would Merrick Garland Do? so we can all get deeper sense of Obama’s Supreme Court nominee’s position on property-related matters.
Thursday, March 17, 2016
Amnon 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.
Wednesday, March 16, 2016
Julia 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.
Tuesday, March 15, 2016
Tara 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.
Monday, March 14, 2016
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.