Monday, October 24, 2016

Leong on Public Accommodations and the Sharing Economy

Nancy-leongNancy Leong (Denver) has posted The First Amendment and Fair Housing in the Sharing Economy (Ohio State Law Journal) on SSRN. Here's the abstract:

The sharing economy — a marketplace made up of businesses that profit by connecting providers of goods and services with users of those goods and services — challenges us to reevaluate our anti-discrimination laws. This Essay considers one such challenge: how should public accommodation laws such as Title II of the Civil Rights Act of 1964 and the Fair Housing Act apply to the housing sector of the sharing economy? Such laws, the Essay explains, should apply in full to the housing sector. Moreover, legislators should act to remove the current statutory exemption for landlords who rent a small number of housing units and live on the premises from which they rent. While some might raise concerns that closing the exception will infringe upon small-scale landlords’ First Amendment right to free association, such concerns have no doctrinal basis. Moreover, closing the exception will in fact have the effect of advancing interests related to both freedom of speech and of association, particularly with respect to the people of color whom public accommodation laws were originally designed to protect.

October 24, 2016 in Recent Scholarship | Permalink | Comments (0)

Thursday, September 22, 2016

Schaffzin on Property Law, Blight, and Clinical Legal Education

DannyDaniel Schaffzin (Memphis) has posted (B)Light at the End of the Tunnel? How a City's Need to Fight Vacant and Abandoned Properties Gave Rise to a Law School Clinic Like No Other (Washington University Journal of Law & Policy) on SSRN. Here's the abstract:

Over the course of the last two decades, intensified by the mortgage foreclosure crisis of the late 2000s, an epidemic of vacant and abandoned properties has inflicted devastation on people, neighborhoods, and cities across the United States. Though surely coincidental, the same time period has seen the emergence of experiential learning coursework, long operating at the periphery of legal education, as a centerpiece of the law school curriculum. In Memphis, the temporal convergence of these two phenomena has acted as a catalyst for the creation of a law school clinical course in which students learn and work under direct faculty supervision to abate the public nuisance presented by neglected properties. This Clinic is distinctive for a number of reasons, not the least of which is its singular client: the City of Memphis itself.

In this article, the University of Memphis School of Law’s Director of Experiential Learning, one of the two founders and codirectors of the Neighborhood Preservation Clinic, asserts the efficacy of the Clinic’s role in training future lawyers and providing zealous legal representation to the City in lawsuits against the owners of blighted properties. For context, the article first considers the rise and devastating effects of the nationwide vacant and abandoned property epidemic, the statutory authority available in Tennessee to pursue recourse against the owners of such property, and the broader blight-fighting strategy being employed by the City within which the decision to launch the Clinic was made. The article then examines the Clinic’s multilayered design and articulates the benefits that the Clinic has conferred upon its students, the Law School and the City of Memphis. The article concludes that the Neighborhood Preservation Clinic offers a government representation model for in-house law school clinics that stays true to traditional clinical pedagogy while honoring clinical legal education’s two-pillared historical mission to effectively prepare students for practice and to work in advancement of social justice and public interest outcomes.


September 22, 2016 in Home and Housing, Land Use, Recent Scholarship | Permalink | Comments (0)

Saturday, September 17, 2016

Bradshaw on the Property Rights of Animals

Image_119441_14352477Karen Bradshaw (Arizona State) has posted Property Rights for Animals on SSRN. Here's the abstract:

What if animals could own property? This Article presents a thought experiment of extending our anthropocentric property regime to animals. This exercise yields new insights into property law, including what appear to be biological underpinnings to what is widely assumed to be the distinctly human system of property. It also reveals that government and private actors alike have created a vast network of functional property rights for animals. The effects of a property rights regime for animals extends beyond property law: it would serve to improve the plight of animals, especially wildlife, by counting historic exclusion of animals from property allocations. 

Property law may be a human codification of ingrained biological principles, common among species. Human governance of land, partially reflected by property law and observation of social attitudes to property, may, in fact, better theorized as animal in nature. Scientific findings suggesting that animals engage behavior mirroring that which establishes property ownership among humans. Species ranging from bees to jaguars undertake actions to acquire and protect land, which, when undertaken by people, forms the legal basis of property ownership. 

Initial entitlements of American land excluded customary animal users, then afforded subsequent human landowners with the right to develop and exclude, which produced profoundly negative effects on species conservation. In response, a variety of governance strategies have emerged to protect wildlife, most federal statutes weakening property rights. In fact, law has already partially accommodated the idea of animals as property owners. Examining a variety of Constitutional, statutory, and common law doctrines suggests that animals already hold a variety of functional property rights, including ownership of hundreds of millions acres of land. 

This Article is the first to analyze a property-rights approach to animal welfare and species conservation. Benefits of this approach, relative to existing efforts to imbue animals with human rights, include its bipartisan nature and foreseeable endpoint. Animal property rights would not require a massive shift in societal norms or uncompensated property redistributions. Indeed, this approach would likely improve animal welfare while also strengthening existing property rights, lessening the need for statutory controls on land uses, and updating law to harmonize with prevailing norms regarding animals’ place in society.

September 17, 2016 in Recent Scholarship | Permalink | Comments (0)

Tuesday, September 13, 2016

Odinet on Virtual Property and Secured Credit

Odinet Photo (Jarreau)Chris Odinet (that's me!) (Southern) has posted BitProperty and Commercial Credit (Washington University Law Review) to SSRN. Here's the abstract:

In the past several years the growth of virtual property in today’s economy has been explosive. The everyday use of virtual assets ranging from Twitter and Facebook to YouTube and virtual world accounts is nearly absolute. Indeed, by one account Americans check social media over 17 times per day. Further, a growing number of savvy virtual entrepreneurs are reporting incomes in the six and seven figure range, derived solely from their online businesses. Nevertheless, although the commercial world has come to embrace these newfound markets, commercial law has done a poor job of keeping up. Scholars have argued that laws governing everything from taxation, to bankruptcy, to privacy rights have not kept pace with our ever-changing virtual world. And nowhere is this truer than in the law of secured credit. Doubtlessly virtual property has come to represent significant wealth and importance, yet its value as a source of leveraged capital remains, in large part, untapped. This unrealized potential is not without good reason; the law — specifically Article 9 of the UCC and the law of property more broadly — suffers from a number of deficiencies and anomalies that make the use of virtual property in secured credit transactions not only overly complex and expensive, but almost entirely untenable. This Article shines light on these shortcomings, and, in doing so, advances a number of guiding principles and specific legislative recommendations, all geared toward a reformation of the law of secured credit in virtual property.

September 13, 2016 in Articles, Intellectual Property, Law Reform, Personal Property, Property Theory, Recent Scholarship, Recording and Title Issues, Virtual Property | Permalink | Comments (0)

Sunday, September 11, 2016

Zasloff on the Clash between Land Use and Fair Housing

ZasloffJonathan Zasloff (UCLA) has posted The Price of Equality: Fair Housing, Land Use, and Disparate Impact (Columbia Human Rights Law Review) on SSRN. Here's the abstract:

What happens when local government policies run head-on into federal civil rights laws? Nowhere does this question assume greater importance than with land use and fair housing, yet in the nearly half-century since the passage of the Fair Housing Act (FHA), courts and commentators have skirted the question. With the Supreme Court’s recent decision in Inclusive Communities Project v. Texas, the most significant fair housing decision in the nation’s history, they can no longer do so. This Article represents the first sustained effort to show how the FHA affects land use, the most important power that cities have under American localism. The Supreme Court held for the first time that the FHA allows disparate impact liability, and outlined when such disparate impact cases can be brought. But it left many crucial questions unanswered, and this Article attempts to fill the gap. It concludes that when cities restrict affordable and multifamily housing, which often has a disparate impact on people of color, zoning ordinances must withstand intermediate scrutiny in order to be sustained. Courts must balance local policies with demands for inclusion: sometimes those policies will triumph, but in many instances they will not, for they rest on weak empirical or legal foundations, or they can be addressed in less restrictive ways. The Article sets forth a series of the most common scenarios and justifications for exclusionary zoning, and seeks to show that such justifications have far less purchase than is commonly supposed. The FHA comes nowhere close to abolishing zoning, but it does insist that local zoning must no longer exclude racial minorities, and the Court’s decision makes clear how fair housing advocates can and should use the law to fight such exclusion. If localities no longer have the discretion to exclude people of color, then that is the price of equality.

September 11, 2016 in Home and Housing, Land Use, Real Estate Transactions, Recent Cases, Recent Scholarship | Permalink | Comments (0)

Tuesday, September 6, 2016

Stein on Chinese Real Property Law and Practice

Stein-GregGregory Stein (Tennessee) has posted Chinese Real Estate Law and the Law and Development Theory: Comparing Law and Practice (Florida State Journal of Transnational Law & Policy) on SSRN. Here's the abstract:

China did not adopt a modern Property Rights Law until 2007, which means that most modern real estate development occurred before there was a comprehensive property law to govern it. Moreover, business conventions in China frequently diverge from published laws, and the rules that professionals follow do not always comply with legal requirements. This article addresses how real estate professionals in China contend with these legal inconsistencies and uncertainties. It also asks whether China is disproving the traditional law and development model, which holds that transparent property and contract laws are a prerequisite to robust economic development.

Part II introduces some of the common Western misconceptions about Chinese real estate law and business. Part III presents examples of how three specific Chinese business practices have come to differ in significant ways from Chinese real estate law. Part IV concludes by noting the ways in which China calls into question the widely accepted model of law and development.


September 6, 2016 in Articles, Real Estate Finance, Real Estate Transactions, Recent Scholarship | Permalink | Comments (0)

Monday, September 5, 2016

Alexander on American Property Law Doctrine

Bio_Alexander_Gregory_gsa9_B&WGregory Alexander (Cornell) has posted Five Easy Pieces: Recurrent Themes in American Property Law (University of Hawaii Law Review) on SSRN. Here's the abstract:

The title of my article, "Five Easy Pieces," may not resonate with those of you who are too young to remember Jack Nicholson as a budding young movie star cut out of the James Dean mold. For those who do remember, it is, of course, the title of one of Nicholson's early (and, to my mind, greatest) movies. Jack's five easy pieces were piano pieces, easy for him to perform, less so for others. There was a certain irony about the word "easy" in the title. The irony lay not only in the fact that just about everyone else consider those pieces difficult, but, more deeply, because those piano pieces were the only pieces of the life of Bobby Dupea, the character whom Jack portrayed, that were easy for him. Life as a whole, the big picture, was one great, almost impossible challenge for him.

My five easy pieces have their own ironic twist. They are rather different but equally challenging in their own ways that first-year law students here will readily recognize. My pieces, this piece, is really aimed at them. The pieces I will discuss are five recurrent themes in American property law, leit motifs, to continue the metaphor from the Nicholson movie, that run throughout American legal doctrines. These themes provide a way of structuring all of property law, adding coherence to what so often appears to law students as an unintelligible rag-tag collection of rules and doctrines that defy any attempt to construct an overarching framework for analysis. I have given five simple labels to these recurrent topics: "conceptualizing property," "categorizing property, " "historicizing property," "enforcing property," and "de-marginalizing property." We begin with how we conceptualize property.

September 5, 2016 in Articles, Law Schools, Property Theory, Recent Scholarship, Teaching | Permalink | Comments (0)

Friday, September 2, 2016

Illegal Property Tax Foreclosures in Detroit

Atuahene_Bernadette_portraitCheck out this really fascinating (and disturbing) article about research conducted by Bernadette Athene (Chicago-Kent, currently visiting at Chicago) on illegal property tax foreclosures in Detroit:

This week was the 11th anniversary of Hurricane Katrina.  Over the years, many have said that Detroit is experiencing a hurricane without water.

Like with Katrina, the property tax foreclosure crisis in Detroit has wiped out entire neighborhoods inhabited by poor and working-class black people. From 2011-15, the Wayne County treasurer foreclosed upon approximately one in four Detroit properties for nonpayment of property taxes.

In fact, Detroit has one of the highest number of property tax foreclosures any American city has had since the Great Depression. Most important, once foreclosed properties are vacated, they are often vandalized, burned down or stripped of all valuable materials, creating a flood of blighted properties that decimate communities by reducing property values, attracting crime and causing those who can to evacuate.

There is a debate about the origins of Detroit’s property tax foreclosure crisis.

Popular narratives have focused on a culture of lawlessness in which property owners have cheated the city by not paying their property taxes and then devising ways to avoid foreclosure.

Some have welcomed the record number of property tax foreclosures as a sign that Detroit, at long last, is establishing law and order. But, I recently co-authored a study titled “Stategraft” that demonstrates that Detroit’s unprecedented property tax foreclosure rate is indefensible because property tax assessments in Detroit are, in fact, illegal.  

Michigan’s  Constitution clearly decrees that a property’s assessed value cannot exceed 50% of its market value. In our study, we find that Detroit’s assessor is flagrantly violating this vital state constitutional provision. Consequently, contrary to popular narratives, it is the city that is stealing from Detroit property owners through illegal assessments and inflated property tax bills, and not the other way around. And while the city has reassessed properties during the last two years, those actions have not been enough to bring most assessments in line with the Michigan Constitution. 

To investigate whether property tax assessments in Detroit are illegal, we use citywide property sales and assessment data for 2009-15. As required by Michigan case law and statute, we included only arm’s length transactions in our analysis, and we find that, in 2009, 65.5% of the properties sold violated the state constitutional assessment limit.  In subsequent years the numbers were equally shocking: 2010 (84.7%), 2011 (54.6%), 2012 (71.4%), 2013 (78.2%), 2014 (83.2%), 2015 (64.7%).

The property tax assessments were not only above the legal limit, but they also exceeded it by a substantial sum. For instance, in 2010, assessments were, on average, 7.3 times higher than the legal limit. In 2015, assessments were, on average, 2.1 times higher than the legal limit.

In all years studied, the illegality was most pronounced for lower-valued properties. That is, the city is more likely to assess modest homes at illegal levels than it is more expensive homes, leaving the most vulnerable homeowners drowning in injustice. 

Detroit’s mayor, Mike Duggan — a former prosecutor — acknowledged that “for years, homes across the city have been over assessed,” and tried to remedy this in 2014 and 2015 by implementing assessment decreases for most of the city, ranging from 5% to 20%.

Our study shows that illegal property tax assessments nevertheless persist for lower-valued properties despite these reductions. For example, in 2015, properties with the lowest values were, on average, assessed at 4.8 times the legal limit, while properties with the highest values were, on average, legally assessed.

Both before and after Duggan’s assessment reductions, those who can afford only modest properties have been subject to the most severe illegality and forced to endure the consequences of Detroit’s broken levees.

In July, the American Civil Liberties Union of Michigan, the NAACP Legal Defense Fund and the law firm of Covington & Burling filed a class action  alleging that the unprecedented number of property tax foreclosures in Detroit is unlawful on several counts, including the fact that the property tax assessments systematically violate the state constitution and the Fair Housing Act. The findings of "Stategraft" strongly support this claim.

The end goal of the class action is to stop all property tax foreclosures that are based upon illegal assessments. As an interim measure, the legal team recently filed a motion for a preliminary injunction that would place a moratorium on property tax foreclosures of owner-occupied properties in Detroit and throughout Wayne County.

To be sure, by reducing city revenues, a moratorium would further wound a city that has been in economic decline for decades and is desperately trying to emerge from the shadow of the largest municipal bankruptcy in our nation’s history. But, just as we do not allow homeless people in desperate need to burglarize homes, we should not allow the City of Detroit to use unlawful assessments and inflated property tax bills to steal money from Detroit property owners. Additionally, the requested moratorium is narrowly tailored so that it protects only vulnerable homeowners and not investors. 

Given the mortgage foreclosure crisis, water shutoffs and historic bankruptcy, the people of Detroit have already had to weather several devastating storms. Now that they are facing a hurricane without water, the federal government cannot leave Detroiters stranded.

Attorney General Loretta Lynch must ensure that the Housing and Civil Enforcement Section of the Department of Justice opens an official investigation, which will supplement the ongoing class action and begin to quell the tides of inequity.

Bernadette Atuahene is a visiting professor at the University of Chicago Law School and a research professor at the American Bar Foundation.

September 2, 2016 in Articles, Home and Housing, Mortgage Crisis, Real Estate Transactions, Recent Scholarship, Recording and Title Issues, Takings | Permalink | Comments (0)

Saturday, August 27, 2016

Mandelker on Zoning and Alternative Housing

 Mandlekerd4Daniel Mandelker (Washington University) posted Zoning Barriers to Manufactured Housing (The Urban Lawyer) on SSRN. Here's the abstract:

Manufactured housing is a major affordable housing resource for millions of people. Restrictive zoning barriers limit its availability, even though studies have discredited myths, such as objections to its safety and quality. A national statute, the National Manufactured Housing Construction and Safety Standards Act, authorizes building code standards that address all aspects of safety, durability and quality, and that preempt state and local codes that deal with this problem. The Act does not preempt restrictive zoning, and Congress should amend the law to cover zoning restrictions. Judicial control of zoning barriers to manufactured housing is unsatisfactory and requires statutory change. Courts accept unequal treatment that applies restrictive zoning only to manufactured housing, though some statutes prohibit discrimination. The cases uphold exclusions from residential districts if manufactured housing is allowed elsewhere. Some statutes prohibit exclusion by requiring manufactured housing as a permitted use in all residential districts, or allow a community to decide what residential districts must accept manufactured housing. Courts uphold aesthetic standards, such as roofing and siding requirements, and some statutes authorize them, though limitations are needed to protect manufactured housing from exclusionary treatment. Communities often require approval of manufactured housing as a conditional use, and approval as a conditional use is often denied. Courts have upheld conditional use denials, and statutory protective standards are needed that will prevent abuse of the conditional use requirement.

August 27, 2016 in Home and Housing, Land Use, Recent Scholarship | Permalink | Comments (0)

Monday, August 22, 2016

Eagle on Oceanfront Property and Takings

JeagleJosh Eagle (South Carolina) has posted Taking the Oceanfront Lot (Indiana Law Journal) on SSRN. Here's the abstract:

Oceanfront landowners and states share a property boundary that runs between the wet and dry parts of the shore. This legal coastline is different from an ordinary land boundary. First, on sandy beaches, the line is constantly in flux, and it cannot be marked except momentarily. Without the help of a surveyor and a court, neither the landowner nor a citizen walking down the beach has the ability to know exactly where the line lies. This uncertainty means that, as a practical matter, ownership of some part of the beach is effectively shared. Second, the common law establishes that the owner of each oceanfront lot holds easement-like interests in adjacent state-owned land; and, the state holds similar interests in the oceanfront lot. For these two reasons, the legal relationship between the oceanfront owner and the state is more interdependent than it may seem at first. It is much more than the usual neighbor relationship.

Disputes over oceanfront property are often framed as cases of wrongful taking under the Fifth Amendment’s Just Compensation Clause. The Supreme Court has historically applied its standard takings test for determining whether or not a state is liable for the impact of its rules on a landowner’s rights. This Article is the first to examine the question of whether use of this standard test is optimal, or even logical, in cases between states and the owners of oceanfront land. Given the fact that climate change impacts such as sea-level rise are likely to increase rates of conflict along the legal coastline, the potential benefits of a test that takes into account the special relationship between these parties are significant. Support for an alternative test can be found in two sets of common law property rules, the upland rights and public trust doctrines, as well as in a mechanism that nineteenth-century courts used to resolve similar disputes.

August 22, 2016 in Land Use, Recent Scholarship, Takings | Permalink | Comments (0)

Eagle on the Socioeconomics of Affordable Housing

EagleSteven J. Eagle (George Mason) posted Conflation, Intractability and Affordable Housing (Fordham Urban Law Journal) on SSRN. Here's the abstract:

This Article examines the varying and often-conflicting views of “affordable housing” of different social and economic groups. It asserts that attempts to deal with affordable housing issues must take into account the shelter, cultural, and economic needs of those populations, and also the effects of housing decisions on economic prosperity. The article focuses on affordable housing goals such as making available an ample supply of housing in different price ranges; attracting and retaining residents who contribute to the growth and economic prosperity of cities; ensuring that neighborhood housing remains available for existing residents, while preserving their cultural values; and providing adequate housing in high-cost cities for low- and moderate-income persons and the overlapping concern for “fair housing” for families of all races and backgrounds.

Thereafter, the Article examines the benefits and detriments of various means of providing more affordable housing, including fair-share mandates, rent control, and inclusionary zoning (including whether that leads to impermissible government takings of private property). It then briefly considers the merits and demerits of federal subsidy programs.

The Article briefly considers conceptual and practical problems in implementing the Supreme Court’s 2015 Inclusive Communities disparate impact holding, and HUD’s 2015 regulations on “Affirmatively Furthering Fair Housing.” Finally, it discusses how the concept of “affordable housing” conflates the separate issues of high housing prices and poverty, and how housing prices might be reduced through removal of regulatory barriers to new construction.

Throughout, the Article stresses that advancing affordable housing goals have both explicit and implicit costs, and that goals often are conflicting. To those ends, it employs economic and sociological as well as legal perspectives.

August 22, 2016 in Home and Housing, Law & Economics, Real Estate Transactions, Recent Scholarship | Permalink | Comments (0)

Tuesday, August 16, 2016

Meier on the Rule of Capture

MeierLuke Meier (Baylor) recently posted Teaching Pierson v. Post on SSRN. Here's an excerpt:

I have now taught Pierson thirteen times. I love the case. (My former students would confirm this statement.) After experimenting with different ways of teaching Pierson, I have developed a unique approach that (I believe) accomplishes many of my pedagogical objectives for the first week of class. The students also seem to enjoy it. This article explains my approach to teaching Pierson v. Post.

August 16, 2016 in Recent Scholarship | Permalink | Comments (0)

Monday, August 15, 2016

Posner & Weyl on Private Property and Resource Allocation

Eric Posner (Chicago) and E. Glen Weyl (Yale/Microsoft) posted Property is Another Name for Monopoly Facilitating Efficient Bargaining with Partial Common Ownership of Spectrum, Corporations, and Land on SSRN. Here's the abstract:

The existing system of private property interferes with allocative efficiency by giving owners the power to hold out for excessive prices. We propose a remedy in the form of a tax on property, based on the value self-assessed by its owner at intervals, along with a requirement that the owner sell the property to any third party willing to pay a price equal to the self-assessed value. The tax rate would reflect a tradeoff between gains from allocative efficiency and losses to investment efficiency, and would increase in line with expected developments in information technology. The legal and economic implications of this system are explored.


August 15, 2016 in Recent Scholarship | Permalink | Comments (0)

Thursday, July 21, 2016

Weiss on Housing Tax Credits and Residual Value

Website PictureBrandon M. Weiss (UMKC) has posted Residual Value Capture in Subsidized Housing (Harvard Law & Policy Review) on SSRN. Here's the abstract:

This Article argues that our primary federal subsidized housing production program, the Low-Income Housing Tax Credit (LIHTC), will result in the unnecessary forfeit of billions of dollars of government investment and the potential displacement of tens of thousands of households beginning in 2020 when LIHTC property use restrictions start to expire. The LIHTC example is presented as a case study of an inherent dynamic of public-private partnerships—namely, the potential capture by for-profit providers of “residual value.” For purposes of this Article, this is value generated by a public-private transaction that is unnecessary to incentivize a private provider to deliver the contracted for good or service. 

Drawing on corporate organizational theory, which has highlighted the role that nonprofits play in solving certain contract failures and generating positive externalities, the Article argues that, in certain contexts, partnering with nonprofit providers can be an effective approach to increasing the share of residual value that flows to public purposes. The LIHTC program is one such context, given that a nonprofit preference results in a three-sector approach whereby the federal government provides tax credits to nonprofit developers that must attract private investor equity. This framework leverages institutional strengths, including the access to capital of government, the relative fidelity to public purposes of nonprofits, and the market-based underwriting and oversight of for-profit investors.

July 21, 2016 in Home and Housing, Real Estate Transactions, Recent Scholarship | Permalink | Comments (0)

Monday, July 18, 2016

Brown and Merriam on Takings Claims and Lucas

Carol Necole Brown (Richmond) and Dwight H. Merriam (Robinson+Cole LLP) have posted On the Twenty-Fifth Anniversary of Lucas: Making or Breaking the Takings Claims (Iowa Law Review) on SSRN. Here's the abstract" 

In Lucas v. South Carolina Coastal Council, the United States Supreme Court established the premier categorical regulatory takings standard with certain limited exceptions. The Lucas rule establishes that private property owners are entitled to compensation for a taking under the Fifth Amendment Takings Clause when a government regulation “denies all economically beneficial or productive use of land.” Today, Lucas remains the controlling law on categorical regulatory takings. But in application, how much does Lucas still matter?  

My review of more than 1,600 cases in state and federal court reveals only twenty-seven cases in twenty-five years in which courts found a categorical regulatory taking under Lucas. By percentage, that works out to a Lucas claim success rate of just 1.6 percent. This does not mean Lucas is unimportant, however. Rather, the paucity of successful Lucas claims itself tells a significant story about the importance of pleading takings claims. I contend that Lucas’ most enduring value is not its contribution to the positive law but rather its effect on how litigants shape their cases. A crucial aspect of the Lucas categorical regulatory takings analysis has been, and will continue to be, the problem of defining the denominator in the regulatory takings equation. My research suggests that Lucas’ holding incentivizes the private contractual agreements entered into by property owners to shrink the takings denominator and tilt the scales slightly in favor of the plaintiff. The ability of a property owner to reduce the denominator remains the loadstar for a Lucas case-winning strategy. 

This is important for not only theorists but also for practitioners to know — those who litigate and conduct transactions in Lucas’ shadow.

July 18, 2016 in Recent Scholarship, Takings | Permalink | Comments (0)

Thursday, July 7, 2016

Davidson & Infranca on the Sharing Economy

Nestor Davidson (Fordham) & John Infranca (Suffolk) recently posted The Sharing Economy as an Urban Phenomenon (Yale Law & Policy Review) on SSRN. Here's the abstract:

Seemingly overnight, companies like Uber, Lyft, Airbnb, WeWork, Taskrabbit, Shyp, and many others have transformed transportation, accommodations, personal services, and other sectors. The evolving regulatory response to this “sharing economy” presents an intriguing puzzle. Where telephone, broadband, early Internet companies, and similar previous technologies were shaped by battles with federal regulators, the fate of sharing enterprises is playing out in front of taxi and limousine commissions, zoning boards, and city councils. 

The reason for this atypical dynamic, this Article argues, is that — unlike prior technological disruptions — the sharing economy is fundamentally an urban phenomenon. The platforms that enable sharing leverage or confront conditions of density, proximity, specialization, and even anonymity that mark city life. And many sharing companies flourish through a kind of regulatory arbitrage that finds value in frictions and barriers generated by urban regulatory regimes. 

A fascinating experimentalist dialectic is emerging from the resulting decentralized regulatory landscape. Local economic, political, legal, and social conditions are generating regulatory responses that range from full embrace to open hostility. And sharing enterprises are responding by adjusting their business models and reconciling in various ways to these regulatory constraints. These compromises are generating creative solutions to balancing innovation and public welfare. 

The interaction between urban governance and the sharing economy, however, flows both ways. Local governments are being pushed to be more transparent about their policy interests, creating spillover effects in regulatory regimes beyond the sharing economy. And the sharing economy is transforming cities themselves. The shift from ownership to access is altering development and mobility patterns as traditional links between transportation, housing, and labor markets and the shape of metropolitan space morph. 

By framing the sharing economy as an urban phenomenon, this Article sheds important new light on a rapidly emerging scholarly discourse. To date, scholars have failed to recognize the sharing economy’s deep reliance on the urban fabric and its potential to mold that fabric. Understanding this relationship will also lead to better calibrated regulatory responses that reflect the sharing economy’s holistic impact on cities. Equally important, it will firmly ground our understanding of the sharing economy in its urban birthplace as it matures.

July 7, 2016 in Land Use, Law & Economics, Property Theory, Recent Scholarship | Permalink | Comments (0)

DeBarbieri on Community Benefits Agreements

Edward_debarbieriEdward W. De Barbieri (Brooklyn Law School) has posted Do Community Benefits Agreements Benefit Communities? (Cardozo Law Review) on SSRN. Here's the abstract:

Community Benefits Agreement (CBA) campaigns and public discussions about community benefits are becoming the norm in deciding how large urban projects are built outside of formal public land use approvals. CBAs have revolutionized land use approvals for large, public-private economic development projects: now developers and coalitions representing low-income communities can settle their disputes before formal project approval. As a result, CBAs are now commonplace nationwide.

Legal scholarship, however, has failed to keep up with these important developments. This Article aims to do just that by examining how CBAs, when properly negotiated, lower transaction costs, enhance civic participation, and protect taxpayers. It argues that CBAs achieve all these outcomes well, and more efficiently than existing government processes. Indeed, this Article’s central argument is that to the extent that scholars have analyzed CBAs, their analyses have gone astray by either dismissing CBAs as harmful to communities or by focusing on the role of the state in negotiating what really should be a private contract between a coalition of community groups and a developer. It is a mistake to give the state’s role in CBAs primacy over the community coalition because the inclusion of government in the CBA bargaining process creates a host of constitutional protections for developers — namely that the community benefits must be connected to and proportional with the instant government approval.

This Article places focus back on CBAs as private contracts enforceable by inclusive and representative community coalitions. It presents a case study of a successful CBA negotiated for the development of the Kingsbridge National Ice Center in the Bronx. This Article proposes a framework for assessing the impact of CBAs in economic development — one that recognizes the nuanced role that states and municipalities play in the formation and enforcement of CBAs. The framework focuses on the extent to which CBAs (1) lower transaction costs by effectively resolving disputes among developers and community groups, (2) increase civic participation in public processes, (3) protect taxpayers, and (4) avoid government intervention and constitutional protections for developers. This Article concludes with recommendations for the appropriate, limited role of government in CBA negotiations.

July 7, 2016 in Home and Housing, Land Use, Landlord-Tenant, Real Estate Finance, Real Estate Transactions, Recent Scholarship | Permalink | Comments (0)

Friday, July 1, 2016

Roark gives TED Talk on Development and Human Impact

RoarkMarc Roark (Savannah) recently gave a TED Talk on his article Human Impact Statements (Washburn Law Journal). Here's the abstract from SSRN:

When a city undertakes a development project, low income and homeless persons face risks of expulsion. Public and private developers often target low-income neighborhoods and public lands because those spaces are viewed as economically more attainable or available for development. Moreover, the legal system's preference to treat disputes as individual entitlement claims tends to relegate disputes to broad questions of entitlements rather than unpacking the impacts that property changes have on the vulnerable populations. Whether by gentrification or by enhancement of city infrastructure, developer decisions disrupt what are already unstable living environments by imposing increased costs of relocation. These changes also destabilize community relationships by separating individuals and families from their support networks, local transportation options, and local employment that they have come to rely on. In short, low-income and homeless persons find themselves even more destabilized when public and private development projects force their evacuation from where they live. This article argues that though development may be necessary, it should not be undertaken without more serious evaluation of the human impacts in relation to the space. Such evaluations should include the impact on communities, employment, education, and environment for impacted persons. Importantly, failure to take notice of these impacts continues to promote cycles of poverty that plague American cities.

Drawing on similarities in the environmental context, the article argues that a NEPA-like approach to human housing can offset externalities that homeless persons and those living in low-income housing are forced to internalize through environment changes. Amongst those impacts are the imbalance between the well-funded developer and low income populations; the view that low income properties can be classified as nuisance-type properties; and the tendency to only consider the highest best use of property as the rationale for development. The article concludes by offering model legislation that could be implemented to provide a NEPA like assessment to city development.

And here's his TED Talk. Good job, Marc!


July 1, 2016 in Home and Housing, Law Reform, Real Estate Transactions, Recent Scholarship | Permalink | Comments (0)

Sunday, June 26, 2016

Newman on the Economics of Indigenous Property Rights

Dwight Newman (Saskatchewan) has posted The Economic Characteristics of Indigenous Property Rights: A Canadian Case Study (Nebraska Law Review) on SSRN. Here's the abstract:

Legal and economic scholars have increasingly drawn attention to the impact of property rights issues on economic prosperity for Indigenous communities around the world. In the context of a constitutional provision entrenching Indigenous rights in a state whose resource industries have an international strategic significance, Canadian courts have been and are currently engaged in a process of creatively developing the parameters of various Indigenous rights, including Indigenous property rights. This Article will argue that in doing so, they have developed certain characteristics on those property rights that seemingly undermine Indigenous communities’ own opportunities to make economically beneficial choices concerning uses of their own lands for resource development. The Article will ultimately suggest that this case study raises concerns about the idea of courts focused on public law considerations being positioned so as to develop the private law characteristics of Indigenous property rights. To do so, focusing first on the Supreme Court of Canada’s landmark Aboriginal title decision in the Tsilhqot’in case, Part II of this Article engages first in the complex legal doctrinal task of trying to unpack certain aspects of just what the Court actually said on Aboriginal title and its parameters. Part III builds upon that description of the nature of the Aboriginal title property right and related writing by economic scholars to consider the economic implications of characteristics of that property right, which exhibits — relative to what would have been possible with different drafting of the judicial rules — uncertainties of scope and incentivization of attempts to create further uncertainty, simultaneous imposition of roles to multiple decision-makers on uses of the property and of surprisingly fragmented ownership characteristics, and significant restrictions on alienability of property rights. These characteristics may lead to significant economic consequences both in the context of Indigenous communities contracting with outsiders (such as with resource development proponents) and in the context of members’ own use of the land. The latter parts of Part III try to show the practical consequences for specific resource developments that might be considered by Indigenous communities, such as in the context of a mining development. Part IV, engaging with broader law and economics scholarship on the efficiency of common law adjudication processes, tries to offer some explanations of why the courts are developing these rights in ways that have these economic characteristics, in part by showing how the context in which they are operating is distinct from traditional common law contexts in which scholars have shown why courts have developed legal doctrines that fit more closely with economic efficiency. Part V tries to offer some policy responses that could help to promote the development of more economically functional property rights for Canadian Indigenous communities. Although the particular discussion is situated within Canadian legal doctrine, it will also conclude by referencing broader implications, both for American resource investors and for analogous contexts elsewhere in the world, including for the possibility that courts are not best situated to develop the shape of Indigenous property rights when their adjudicative processes are structured in certain ways.

June 26, 2016 in Law & Economics, Recent Scholarship | Permalink | Comments (0)

Sunday, June 19, 2016

Reiss on Housing and Sustainability

ReissDavid Reiss (Brooklyn) has posted Ensuring that Homeownership is Sustainable (Westlaw Journal of Bank and Lender Liability) on SSRN. Here's the abstract:

This short article argues that the Federal Housing Administration has suffered as a result of many of the same unrealistic underwriting assumptions that led to problems for many lenders during the 2000s. It, too, was harmed by a housing market as bad as any since the Great Depression. As a result, the federal government announced in 2013 that the FHA would require the first bailout in the agency’s history. While facing financial challenges, the FHA has also come under attack for the poor execution of policies designed to expand homeownership opportunities.

Leading commentators have called for the federal government to stop having the FHA do anything but provide liquidity to the low end of the mortgage market. These critics rely on a few examples of agency programs that were clearly failures, but they do not address the FHA’s long history of undertaking comparable initiatives. In fact, the FHA has a history of successfully undertaking new homeownership programs. However, it also has operational flaws that should be addressed before it undertakes similar future homeownership initiatives. 

June 19, 2016 in Recent Scholarship | Permalink | Comments (0)