PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Wednesday, October 8, 2014

Fairfield on Online Property Transactions

FairfieldjJoshua Fairfield (Washington & Lee) has posted BitProperty (USC Law Review) on SSRN.  Here's the abstract:

Property is the law of lists and ledgers. County land records, stock certificate entries, mortgage registries, UCC filings on personal property, United States Copyright and Patent registries of interests in intellectual property, bank accounts, domain name systems, and consumers’ Kindle eBook collections in the cloud — all are merely entries in a list, determining who owns what.

Each such list has suffered under a traditional limitation. To prevent falsification or duplication, a single entity must maintain the list, and users must trust (and pay) that entity. As a result, transactions must proceed at significant expense and delay. Yet zero or near-zero expense is the fuel of internet scalability. Until technologies get cheap and fast enough, they cannot benefit from the full power of the internet. Property transactions have not yet truly seen an internet revolution because they are constrained by the cost of creating centralized trusted authorities.

This article retheorizes the contours of digital property if that central constraint were removed. There is every reason to believe it can be. A spate of interest in cryptocurrencies has driven the development of a series of technologies for creating public, cryptographically secure ledgers of property interests that do not rely on trust in a specific entity to curate the list. Previously, the digital objects that users could buy and sell online were not rivalrous in the same way as offline physical objects, unless some centralized entity such as a social network, digital currency issuer, or game company served the function of trusted list curator. Trustless public ledgers change this dynamic. Counterparties can hand one another digital, rivalrous objects in the same way that they used to hand each other gold bars or dollar bills. No intermediary or curator is needed.

Trustless public ledgers can help to reshape property law online. They offer the kind of near-zero transaction costs that have provoked radical disruptive innovation across the internet. With near-zero transaction costs, online property transactions can finally benefit from the huge scaling effects of internet technologies.

In addition, the advent of this disruptive technology provides an opportunity to more deeply theorize property interests in information environments. Property online is anemic. Consumers control few online resources and own even less. This is in no small part due to antiquated notions of property as the law of physical, tangible resources. With the advent of new technology that can create digital, scarce, and rival intangible assets, these basic assumptions should be reexamined, discarded, and replaced with a theory of property as an information communication and storage system. That is the project of this piece.

October 8, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 7, 2014

Map of the Day: Marriage Equality

Marriage-equality

October 7, 2014 | Permalink | Comments (0) | TrackBack (0)

The AALS Section on Property: Junior Scholar Mentoring Session

The AALS Section on Property is pleased to invite junior faculty members to submit an abstract of a current writing project or an abstract outlining a possible paper idea.  Authors of selected abstracts will informally present their theses/ideas during a mentoring session to be held as one part of the Section breakfast at the 2015 AALS Annual Meeting in Washington, D.C.  The breakfast will take place at 7:00 am on January 4, 2015, just before the Section’s 8:30 am panel program.

The goal of this event is to create a safe and organized (but informal) space at the AALS meeting for junior property scholars to meet and engage with more experienced scholars.  Selected presenters will have a maximum of 5 minutes to informally present their emerging theses/ideas to their table at the breakfast, after which the members of the Section at each table can offer feedback.  Each table will have at least one member of the Section’s Executive Committee as well as other more senior property scholars who will provide mentoring advice, including constructive comments and guidance designed to help suggest ideas and directions of research that might assist with the junior scholar’s project. 

 

Interested full-time, junior faculty members (defined for these purposes as 10 years or less in the academy) of AALS member law schools are invited to submit an abstract of one to three pages to Professor Timothy M. Mulvaney (Texas A&M University School of Law), Chair of the AALS Section on Property, at tmulvaney@law.tamu.edu by the new, extended deadline of October 27, 2014.  During this extended submission period, a review panel consisting of six property scholars will select an additional one to three junior scholars’ abstracts for these informal presentations and table discussions at the Section breakfast.  Selected presenters will be notified of the review panel’s decision in early November.  Each selected presenter will be responsible for paying his/her annual meeting registration fee, the registration fee for attending the Property Section breakfast, and travel expenses.

 

Please feel free to direct questions to Professor Mulvaney at tmulvaney@law.tamu.edu.

October 7, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, October 6, 2014

Duplitecture at Chinese Colleges

Nott

From the Atlantic:

[American colleges] cloned British universities’ libraries, cathedrals, quads, sculptures and even dress codes in the hopes of recreating the feel (and prestige) of Oxford and Cambridge.  These days, colleges in China are copying America’s copycat approach. There’s a university in Shanghai where faux English manor houses sit side-by-side with dorms modeled on Britain’s half-timbered homes. To the north, Hebei province boasts a university inspired by Harry Potter’s Hogwarts—itself fashioned on the traditional collegiate Gothic. Even specific colleges have been cloned. The University of Nottingham’s Ningbo campus features replicas of the U.K. school’s iconic landmarks, flanked by British gardens.

[...] the recent turn toward revival architecture has been largely driven by the Chinese themselves: Looking like the best schools in the world seems, to many, like the natural first step toward becoming one of the best schools in the world. It’s a “dress for the ranking you want, not the ranking you have” mentality, and the historic styles serve to make newer schools seem as though they’re bastions of a time-honored academic tradition.

October 6, 2014 | Permalink | Comments (0) | TrackBack (0)

Book Announcement: ‘Persons, Parts and Property’

Imogen Goold (Oxford), Kate Greasley (Oxford), Jonathan Herring (Oxford) and Loane Skene (Melbourne) have recently edited Persons, Parts and Property (Oxford Press).  Here's the blurb from the publisher's website:

The debate over whether human bodies and their parts should be governed by the laws of property has accelerated with the pace of technological change. Having long held that a corpse could not be property, the common law first recognised that there could be a property interest in human tissue in some circumstances in the early 1900s, but it was not until a string of judicial decisions and statutory regulation in the 1990s and early 2000s that the place of this 'exception' was cemented. The 2009 decision of the Court of Appeal of England and Wales in Yearworth & Ors v North Bristol NHS Trust added a new dimension to the debate by supporting a move towards a broader, more principled basis for finding (or rejecting) property rights in human tissue. However, the law relating to property rights in human bodies and their parts remains highly contested. The contributions in this volume represent a collation of the broad spectrum of analyses on offer, and provide a detailed exploration of the salient legal and theoretical puzzles arising out of the body-as-property question.

October 6, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, October 3, 2014

Smith & Donoho on RLUIPA

George Smith (Catholic) & Philip Donoho (Georgetown) have posted RLUIPA: Re-Aligning Burdens of Proof, Clarifying Freedoms, and Re-Defining Responsibilities (NYU J. of Legis. and Public Policy) on SSRN.  Here's the abstract:

Into the breach primed by the U.S. Supreme Court’s decision in Employment Division Department of Human Resources v. Smith in 1990, Congress plunged headlong, dragging along with it a judiciary charged with enforcement of a mandate only defined ambiguously. Thus, in 2004 the Religious Land Use and Institutionalized Persons Act (RLUIPA) was passed and heralded as a legislative sum certain — a “clear” articulation of Congress’ balancing of local zoning prerogative with idiosyncratic religious use. It has proved anything but; for, since its passage, the results of litigation have remained resolutely immune to coherent explanation, as the Federal Circuit courts have become mired in a deep split, with resulting uncertainties engendering risks for both land user and regulator, alike, as well as crippling the very notion of federalism. This Article probes the present divisions of — principally — the Third, Seventh, and Eleventh Circuits, and concludes that Judge Richard Posner’s analytical approach to resolving this dilemma in applying RLUIPA is the strongest objective template for determining when the Fair Terms of RLUIPA have been violated by zoning authorities.

In order to introduce a needed quantum of certainty in judicial decision making, this Article concludes that one of two options should be pursued: resolving cases under the rubric of conformity with objective criteria — thereby vindicating the prerogative of local zoning authorities while protecting sectarian land users from the limitless discretion of a provincial bureaucracy; or, alternatively, rationalizing the procedures of a RLUIPA action in such a manner that recognizes a land user’s statutory claim under this legislation establishes a prima facie case. Under this second option, such a case could be rebutted upon the showing by a locality that its actions were reasonable under the common law doctrine of nuisance. A surrebuttal to this assertion could be made by a showing by the plaintiff that there was a discriminatory intent exhibited by the governmental authority in its actions to restrict the religious use of land. Each of these two evidentiary approaches represent a fair reading of RLUIPA — and, each would serve to lift the veil of ambiguity covering the capacious issue of religious land use under present law.

October 3, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, October 2, 2014

Housing Advocate Wins "Genius" Grant

The MacArthur Foundation explains its choice:

John Henneberger is an advocate for fair and affordable housing who has created a new paradigm for post-disaster rebuilding. The devastating impact of Hurricane Katrina exposed the failure of federal, state, and local governments to adequately respond to the needs of the poor and of persons with disabilities.

Skilled at identifying points of agreement among parties with varying, often opposing, economic interests and political views—such as developers, elected officials, and community members—Henneberger was an architect of a conciliation agreement with the State of Texas for Hurricanes Dolly and Ike post-disaster rebuilding. This agreement transformed the way that Texas and its local governments address affordable housing, community development, and fair housing and inspired new rule-making at the U.S. Department of Housing and Urban Development (HUD). It has helped to restore equity in disaster assistance for persons with disabilities and racial and ethnic minorities; expanded low-income residents’ involvement in disaster rebuilding; and served as a model for the allocation of disaster rebuilding funds in other states. Henneberger has also worked with architects and community development corporations to rebuild housing better and more rapidly after disasters. He organized a competition that challenged architects to design a permanent home that could be quickly delivered and assembled, cost less than a FEMA trailer, and be both easily expandable and attractive. The first homes were built and occupied in 2009 and improved versions of these homes are currently being constructed.

- See more at: http://www.macfound.org/fellows/916/#sthash.NUMOcuao.dpuf

John Henneberger is an advocate for fair and affordable housing who has created a new paradigm for post-disaster rebuilding. The devastating impact of Hurricane Katrina exposed the failure of federal, state, and local governments to adequately respond to the needs of the poor and of persons with disabilities.

Skilled at identifying points of agreement among parties with varying, often opposing, economic interests and political views—such as developers, elected officials, and community members—Henneberger was an architect of a conciliation agreement with the State of Texas for Hurricanes Dolly and Ike post-disaster rebuilding. This agreement transformed the way that Texas and its local governments address affordable housing, community development, and fair housing and inspired new rule-making at the U.S. Department of Housing and Urban Development (HUD). It has helped to restore equity in disaster assistance for persons with disabilities and racial and ethnic minorities; expanded low-income residents’ involvement in disaster rebuilding; and served as a model for the allocation of disaster rebuilding funds in other states. Henneberger has also worked with architects and community development corporations to rebuild housing better and more rapidly after disasters. He organized a competition that challenged architects to design a permanent home that could be quickly delivered and assembled, cost less than a FEMA trailer, and be both easily expandable and attractive. The first homes were built and occupied in 2009 and improved versions of these homes are currently being constructed.

- See more at: http://www.macfound.org/fellows/916/#sthash.NUMOcuao.dpuf

John Henneberger is an advocate for fair and affordable housing who has created a new paradigm for post-disaster rebuilding. The devastating impact of Hurricane Katrina exposed the failure of federal, state, and local governments to adequately respond to the needs of the poor and of persons with disabilities.

Skilled at identifying points of agreement among parties with varying, often opposing, economic interests and political views—such as developers, elected officials, and community members—Henneberger was an architect of a conciliation agreement with the State of Texas for Hurricanes Dolly and Ike post-disaster rebuilding. This agreement transformed the way that Texas and its local governments address affordable housing, community development, and fair housing and inspired new rule-making at the U.S. Department of Housing and Urban Development (HUD). It has helped to restore equity in disaster assistance for persons with disabilities and racial and ethnic minorities; expanded low-income residents’ involvement in disaster rebuilding; and served as a model for the allocation of disaster rebuilding funds in other states. Henneberger has also worked with architects and community development corporations to rebuild housing better and more rapidly after disasters. He organized a competition that challenged architects to design a permanent home that could be quickly delivered and assembled, cost less than a FEMA trailer, and be both easily expandable and attractive. The first homes were built and occupied in 2009 and improved versions of these homes are currently being constructed.

October 2, 2014 | Permalink | Comments (0) | TrackBack (0)

Top SSRN Downloads

In honor of the beginning of the month, here are the most downloaded property articles on SSRN over the last 60 days:

1.  [208 downloads] Intellectual Property Infringement as Vandalism
      Irina D. Manta (Hofstra) and Robert E. Wagner (CUNY – Business)

2.  [178 downloads]  City Replanning
      Roderick M. Hills, Jr. (NYU) & David Schleicher (George Mason)

3.  [112 downloads]  Rule of Flesh and Bone: The Dark Side of Informal Property Rights
      Stephen Clowney (Arkansas – Fayetteville)

4.  [88 downloads]  Airspace in an Age of Drones
      Troy A. Rule (ASU)

5.  [86 downloads]  The Cost of Personal Property Servitudes: Lessons for the Internet of Things
      Christina Mulligan (Brooklyn)

6.  [68 downloads]  Federalism and Municipal Innovation: Lessons from the Fight Against Vacant Properties
      Benton C. Martin (Emory)

7.  [52 downloads]  From Nectow to Koontz: The Supreme Court's Supervision of Land-Use Regulation
      William A. Fischel (Dartmouth – Econ)

8.  [41 downloads]  Trespass Revisited: Against the Keep-Off Theory of Property and for Owner-Responsibility
      Avihay Dorfman (Tel Aviv) & Assaf Jacob (Radziner)

9.  [40 downloads]  Title Registration and the Abolition of Notice in British Columbia
      Douglas C. Harris (UBC) and May Au (UBC)

10.  [40 downloads]  Progressive Property Moving Forward
       Timothy M. Mulvaney (Texas A&M)

October 2, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 30, 2014

White City Councils for Black Cities

The New York Times takes a look at why "many city councils in the United States, especially those across the south, fall short of reflecting the demographics of the cities they represent:"

Disparities between the percentage of black residents and the number of black elected officials are facts of life in scores of American cities, particularly in the South. The unrest that followed the shooting death of 18-year-old Michael Brown in Ferguson, Mo., has emphasized how much local elections can matter, and prompted a push there for increased black voter participation.

The disparities result from many factors: voter apathy, especially in low-visibility local elections; the civic disconnect of a transient population; the low financial rewards and long hours demanded of local officeholders; and voting systems, including odd-year elections, that are often structured in a way that discourages broad interest in local races.

September 30, 2014 | Permalink | Comments (0) | TrackBack (0)

Klass on the Siting of Transmission Lines

Klass-alexAlexandra Klass (Minnesota) has posted The Electric Grid at a Crossroads: A Regional Approach to Siting Transmission Lines (Davis Law Review) on SSRN.  Here's the abstract:

The current regulatory framework for approving long-distance, interstate electric transmission lines does not match the physical aspects of the interstate electric grid, regional electricity markets, or the growing but dispersed renewable energy sources increasingly used to power the grid. Despite the interstate nature of the electric grid and electricity markets, the states have virtually complete authority over the siting and permitting of interstate transmission lines. Continuing state authority over the development of the interstate transmission grid is puzzling when compared to the nation’s network of interstate natural gas pipelines, for which regulatory authority was transferred to the federal government in the 1940s. The question for this article is whether the history surrounding the transfer of regulatory authority over interstate natural gas pipelines can be instructive in planning for the future of the electric grid. This article shows that that there was a moment in time in the 1940s when natural gas, which for a century had been limited in its commercial use because of lack of transportation from well sites to cities, became a critical energy resource for the entire nation. At that time, Congress responded by creating a federal regulatory process to build the interstate pipeline network necessary to transport this resource after state regulatory authorities had blocked such pipelines. This article then suggests that the electric grid is nearing a crossroads that justifies a similar shift in regulatory authority over the grid, although not necessarily using the same framework Congress created for siting interstate natural gas pipelines. Instead, this article proposes a regional model for siting interstate transmission lines rather than the purely federal approach used for interstate natural gas pipelines. It sets forth various options for regional siting approaches, including granting Regional Transmission Organizations (RTOs) siting authority over interstate transmission lines within their footprints; interstate compacts under the Energy Policy Act of 2005 to create separate, regional siting authorities; and federal mandates on state public utility commissions and courts to consider regional benefits and needs in making siting and eminent domain determinations.

September 30, 2014 | Permalink | Comments (1) | TrackBack (0)

Monday, September 29, 2014

Do BIDs Create Econimic Growth?

The Journal of Planning Education and Research drops some knowledge:

After the large scale abandonment of central cities in the 1950s-1970s, many urban municipalities lacked both vibrancy in their commercial districts and resources to reinvest in better urban infrastructure and security. Business Improvement Districts (BIDs) emerged as a strategy to help stem the decline of these districts by using special self-taxation powers to finance street upgrading, beautification, and increased security, among other industry-driven services. However, given the costs to businesses from the additional tax burden in BIDs, it is only natural to ask if they are justified by their benefits in terms of economic development.

In a recent article in the Journal of Planning Education and Research, "Are BIDs Good for Business? The Impact of BIDs on Neighborhood Retailers in New York City," Columbia University's Stacey Sutton asks just this question for the United States' largest city (Click the link for Open Access). The study differentiates large scale corporate BIDs, like the one which exists in Times Square, with Destination Bids, existing on important commercial corridors, and smaller Community BIDs, which cover neighborhood level retail corridors.

[...] Somewhat surprisingly, Sutton found that when examining neighborhood retail, sales and employment both declined in small Community BIDs versus the matched non-BID areas, but larger Destination BIDs perform better than comparable areas of the city. This may have been because small BIDs tend to attract small independent retailers, who on average have lower sales volumes and employment than do larger retailers, and they are more susceptible to broader economic shifts. The effects of medium-size BIDs was different. In these larger retail corridors employment and sales increased. This may have to do with the fact that these areas tend to attract large and more stable businesses able to pay higher rents. Sutton concludes that BIDs may not always be the best policy for areas with significant levels of independent retail.

September 29, 2014 | Permalink | Comments (0) | TrackBack (0)

Allen on Property in Blackstone's Commentaries

Allen_jessie-0574Jessie Allen (Pittsburgh) has posted Law and Artifice in Blackstone's Commentaries (Journal of Law) on SSRN.  Here's the abstract:

William Blackstone is often identified as a natural law thinker for whom property rights were preeminent, but reading the Commentaries complicates that description. I propose that Blackstone’s concept of law is more concerned with human invention and artifice than with human nature. At the start of his treatise, Blackstone identifies security, liberty and property as “absolute” rights that form the foundation of English law. But while security and liberty are “inherent by nature in every individual” and “strictly natural,” Blackstone is only willing to say that “private property is probably founded in nature.” Moreover, Blackstone is clear that there is nothing natural about the right of inheritance, “a wise and effectual, but clearly a political, establishment.” Indeed, he critiques the assumption that a legal right as central and longstanding as inheritance must be somehow “natural,” observing that “we often mistake for nature what we find established by long and inveterate custom.” At the same time, Blackstone celebrates the many features of common law that have simply been made up. Blackstone’s unflinching formal, fictional, “as if” approach invests property law with a certain materiality. The only way to actualize a make-believe vision is to act it out, to embody it in formal doctrines and practices. In comparison, the modern realist approach to law as an instrument for policy is quite abstract. This leaves realist critics of Blackstonian formalism in the ironic position of arguing for a more transparent approach to law that winds up obscuring the constructive and constructed quality of the legal system that comes through loud and clear in the Commentaries. By openly celebrating legal fictions, Blackstone reveals the truth that law is a great fabrication, not some necessary reflection of the way things are, or should be.

September 29, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, September 26, 2014

Mapping Brazil's Favelas

The Wall Street Journal looks at the promise and peril of making the favelas "official":

For decades, favelas, the dense working-class neighborhoods that now house nearly a quarter of this city's population, didn't exist on city maps.

Officials considered the informal settlements dangerous eyesores, and they refused to send in cartographers or provide official addresses. But frustrated residents began mapping the communities themselves, hoping to pressure authorities into providing more public services.

Now those efforts are getting a boost from two of the world's biggest technology companies. Google Inc. and Microsoft Corp. have started mapping efforts in recent months in several Rio favelas. Relying largely on community groups, the companies plan to map everything from twisting, narrow alleyways to hole-in-the-wall laundromats.

"The power of putting [favelas] on a map and giving them an online presence is really important to opening them up and getting them integrated into the city," says Esteban Walther, Google's director of marketing for Latin America.

It's also potentially lucrative. And some local groups complain that the technology companies are piggybacking on their efforts, tapping their databases of local businesses in the hope of turning a profit

September 26, 2014 | Permalink | Comments (0) | TrackBack (0)

Animal Crossing Signs Around the World

Because it's Friday you should check these out:

Llama

September 26, 2014 | Permalink | Comments (0) | TrackBack (0)

Schleicher on Statehood for D.C.

Schleicher_dDavid Schleicher (George Mason) has posted Welcome to New Columbia: The Fiscal, Economic and Political Consequences of Statehood for D.C. (William & Mary Bill of Rights Journal) on SSRN.  Here's the abstract:

This Essay sketches some of the long-term economic and political consequences of making Washington D.C. the 51st State. The statehood debate has overwhelmingly focused on the same set of issues: the impact of statehood on the federal government’s structure. But if D.C. becomes a state, the most impactful change in its citizens’ lives would not be their new ability to elect members of Congress; it would be the dramatic shift in economics and politics that would come with the transition to having a state rather than city government. On the day “New Columbia” enters the Union, it would bear a constellation of features unprecedented in the nation: the only state wholly part of one metropolitan region, the only state without local governments, and the only wholly urban state. These features have deep implications for the advisability of statehood when compared to the alternatives of retrocession or the stateless status quo and also furnish a blueprint for steps to mitigate the risks and exploit the benefits that statehood would offer.

Part I of the Essay will discuss the special fiscal and economic conditions that New Columbia would face. On one hand, statehood would better allow D.C. to take advantage of periods of economic success. In particular, a state of New Columbia would likely be free of the restrictive confines of the Height of Buildings Act, allowing for greater growth when demand for living in D.C. is high. Moreover, the District would likely also gain greater taxing power (although it would lose some forms of generous federal funding). Yet such benefits come at a price: as a single-city state, New Columbia would face drastic risks in times of downturn. The fact that New Columbia would be entirely in one economic region, and the fact that it would exclusively be the center city of that region, would mean almost necessarily that the state would face substantial financial risks in the case of regional and urban-form related shocks. This pro-cyclical effect makes the case for retrocession stronger, and also suggests reforms like a mandatory rainy day fund if statehood is achieved.

Part II discusses the implications of New Columbia’s unique internal politics. As noted, New Columbia would be the only state without local governments. The absence of separate spheres for local and state elections would have at least two major implications for New Columbia’s politics and policy. First, as a state composed of an overwhelmingly single-party city, New Columbia’s elections would likely be decidedly uncompetitive. Even in the status quo, this absence of party-level electoral competition is a likely cause of many of the pathologies in D.C. politics, from excessive restrictions on growth to its persistent problems with corruption. To ensure the state of New Columbia does not share these defects, any move towards statehood should include reforms aimed at introducing more political competition. Second, and more optimistically, the unprecedented marriage of a city and a state government offers a powerful change for innovation. Historically, the relatively circumscribed legal power of cities has prevented them from pursuing a number of effective policies because such powers are the exclusive province of states. Further, big cities are often losers in state political fights. In this context, New Columbia’s fusion of city and state would provide many opportunities for policy flexibility and discovery unavailable to most big cities.

September 26, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, September 25, 2014

The Uneven Geography of Obama's Circuit Court Appointments

 

Screen Shot 2014-09-24 at 10.47.16 AM

In a moment of great symmetry, both President Obama and President Bush currently have 52 (non-senior) judges working at the Court of Appeals level (I'm counting Roger Gregory as a Clinton appointee).  After falling into a Wikipedia-hole last night, I thought there might be some value in mapping where the appointees of these two-term presidents are plying their craft.  The results are a little surprising. 

I thought that with so many appointments over almost a decade that both presidents would have placed approximately the same number of judges in each circuit.  That pattern holds in a few places.  Both Bush and Obama have seven appointees on the Ninth Circuit.  The 2nd, 3rd, 7th, 10th, and D.C. Circuits also have nearly even splits of Bush and Obama judges.  In some jurisdictions, however, the composition of court has changed radically.  Bush seated 5 members of the 11 judge 8th Circuit (Obama only 1 so far).  President Bush also shaped the 5th and 6th Circuits.  Obama, for his part, upended the composition of the 4th Circuit and his appointments will control the future of the the Federal Circuit and the 1st Circuit for the foreseeable future.  I'll leave it to someone with better knowledge of dockets of these Circuits to speculate on what it might all mean.  At the very least, such imbalance should result in a number of partisan Circuit Splits over the coming years and keep the Supreme Court Justices in their jobs.

September 25, 2014 | Permalink | Comments (0) | TrackBack (0)

Rosenbloom on Local Governments and Global Commons

RosenbloomJonathanJonathan Rosenbloom (Drake) has posted Local Governments and Global Commons (BYU Law Review) on SSRN.  Here's the abstract:

This Article explores the decisions local governments make when appropriating resources from the global commons. Specifically, it focuses on how international and national laws influence local governments when confronting a global commons collective action problem. Local governments often assume a role analogous, but not identical, to that of an individual private actor on a traditional commons. Unlike private actors, however, local governments are subject to a unique set of legal restrictions within an institutional framework that divide authority among the international, national, and subnational layers of governance. This Article analyzes whether the legal restrictions present within the international and national layers influence local government "rational" decision making on the global commons, and whether the division of authority encourages or discourages decision making at the local government level that facilitates the sustainable management of global commons resources. The analysis reveals that local governments are often intimately involved in decisions that influence the global commons, including the global atmosphere. Further, international and national restrictions propel local governments into a tragedy of the global commons by, among other things, diluting and limiting local government authority to address multi-jurisdictional commons challenges. In light of this, the Article reimagines the role of local governments on the global commons. The Article offers three examples which selectively reduce barriers prohibiting local governments from sustainably managing resources without sacrificing national sovereignty or supremacy. The examples are designed to facilitate a discussion on incorporating local governments into international and national policies on effectively avoiding the misuse of global commons resources.

September 25, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 24, 2014

Map of the Day: Are You in the One Percent (of your state)?

State-one-percent-map-with-source.0

 

Business Insider had a map approximating where the cutoff is to be in the top 1 percent by household income in each state.  For reference, the median household income in the country in about $51,000.

September 24, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 23, 2014

The Return of Subprime Loans

Zachary Karabell chronicles the return of one of the villains of the housing crises:

There are also indications of a stealth revival in the subprime mortgage market. Most banks still eschew these loans, having drastically tightened lending standards in the face of regulatory requirements to hold more capital and in response to the billions in fines levied by the Justice Department for shoddy origination and securitization standards pre-2008. But those moves have frozen out millions of would-be homebuyers from credit—an unmet demand that’s precisely what led to the evolution of subprime loans in the first place.

[...]  The fact that subprime loans became the germ of a global financial crisis does not mean that these instruments are inherently poisoned. They were misused and formed the bottom of a corrupt pyramid, but good ideas gone bad are a challenge of human nature, not of recent financial history. Unsupervised origination, zero due diligence of buyers, and opaque packaging of securities can be systemically dangerous. But those are abuses. Financial tools such as subprime financing were designed to be constructive.

In the aftermath of 2008–’09, tight lending standards and even tighter regulations resulted in an unfortunate return to the era before the 1990s, when a low income might mean you were shut out of homeownership, from simple ownership of a car, or from starting a small business. It also meant difficult access to credit for minorities and neighborhoods suffering from some of the industrial decline that started in the 1970s. Subprime was an answer to those challenges and still can be.

September 23, 2014 | Permalink | Comments (0) | TrackBack (0)

Reiss on the GSE Guarantee Fee

Reiss_davidDavid Reiss (Brooklyn) has posted The GSE Guarantee Fee as a Policy Tool on SSRN.  Here's the abstract:

Setting Fannie Mae and Freddie Mac’s guarantee fee rates can have a large impact on the housing market. Setting the rate too low can negatively impact the financial health of Fannie and Freddie. It can also have a positive impact on housing prices because it reduces the overall cost of credit. On the other hand, setting the rate too high can generate excess revenues for the two companies. This would impact Congress’ plans for them as well as possible outcomes for the investor lawsuits arising from the GSE’s conservatorships. And it would also have dampening effect on housing prices, as it would increase the cost of mortgages. While the Federal Housing Finance Agency should consider the broad policy impacts when determining the guarantee fee rate, its main goal should be to set the rate at a level that properly accounts for the guarantee risk borne by the two companies.

September 23, 2014 | Permalink | Comments (0) | TrackBack (0)