Wednesday, October 20, 2010

Climate Change Conference at USC

From Cinnamon Carlarne:

The University of South Carolina School of Law invites you to attend the forthcoming conference entitled, “Three Degrees of Separation: Exploring Linkages between International, National, and Regional Climate Policy.” The conference will bring together leading thinkers to examine the implications of the 2009 Copenhagen Climate Change Conference for climate change law and policymaking at the international, national and local levels with particular regard to the relationship among, and the distinct problems posed by law and policymaking at each level. The objectives of the Conference are three-fold. First, it will analyze how the outcome of the Copenhagen Climate Change Conference - and subsequent international negotiations - affects the long-term survival and efficacy of the international climate change regime. Second, it will explore how the Copenhagen Conference was both influenced by, and influential on US domestic climate change law and policymaking efforts. Third, it will seek to improve understanding of the relationship between international, national and regional climate change governance and, in so doing, to consider some of the unique challenges the Southeast faces in developing state and regional climate strategies. In exploring these dimensions of climate policy, we hope to initiate a more nuanced debate on the current state of climate change law and policy at multiple levels of governance and the implications of this for existing and proposed efforts to address climate change.

To learn more about the Conference and to register, please visit the Conference website, and select the link for the registration brochure, Alternatively, please feel free to contact Professor Cinnamon Carlarne at with any questions or comments.

Jamie Baker Roskie

October 20, 2010 in Climate, Conferences, Environmental Law, State Government | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 19, 2010

Too Dangerous to Walk Across?

The above diagnosis would be a real problem for a "crosswalk" since their primary purpose for existing is to faciliate the safe pedestrian crossing of busy roads.

What happens though when the crosswalk and the street are not considered in a big picture way?

Here's one real world example:

It’s obviously hard to pin down a percentage since when the traffic is heavy and speeds are high, it’s difficult to say which motorists would be required to stop under Florida’s ambiguous law.  Next time we should put markers at the reasonable stopping distance for the 45 MPH speed limit which could help.  But even then it might be difficult to determine whether a driver really should have been required to stop or not.  When a platoon of cars comes by the leaders are usually so close together that if one stopped there would almost inevitably be a chain reaction set of rear end collisions.  The person looking to cross is so intent on watching that drivers don’t run into him/her that it’s hard to be able at the same time to judge who should have stopped or not.  (More good reasons for a look at the basic structure of our traffic laws.)

All that being said, I have to say that when presented with reasonable conditions to stop, about half of the drivers did.  However, if you include cars streaming by at 45 MPH bumper to bumper, the percentage drops dramatically to around 15%.  Many drivers switched lanes to avoid having to stop.  One driver tried to switch lanes when the car in front of him slowed down to stop, only to find the driver in the other lane was stopping also.  He had to slam on the brakes to avoid a collision.  (I jumped back big time!)

The 45 MPH speed is a big, big issue.  If traffic were slower, many more motorists would be willing to yield since they wouldn’t be as afraid of being rear-ended.  I understand FDOT’s concern about placing crosswalks on higher speed roads.  The solution, however, is very simple; lower the design speed and speed limits in pedestrian areas.  The right to build high-speed arterials through pedestrian-active urban areas needs to be revoked.

Granted, this is anecdotal but it nevertheless provides an example of the challenges faced when two normally complementary and compatible land use tools (in this case, roads and crosswalks) are mixed together in an incompatible manner. 

--Chad Emerson, Faulkner U.

October 19, 2010 | Permalink | Comments (0) | TrackBack (0)

Salkin on Sustainable Development, Climate Change, and Land Use for Local Governments

Patricia Salkin (Albany) has posted Sustainable Development, Climate Change and Land Use for Local GovernmentsNew York Zoning Law and Practice Report, Vol. 11, No. 2, September/October 2010.  The abstract:

Over the last two years a number of state level initiatives in New York have been announced and enacted to address sustainable development and climate change. For example, Governor Paterson issued a series of executive orders: requiring a new State Energy Plan (which was adopted in December 2008); setting a goal of reducing greenhouse gas emissions by 80% by the year 2050 and calling for the creation of a climate action plan (the draft plan is scheduled for release for public comment in November 2010; and creating an interagency committee on sustainability and green procurement. In addition, he signed into law a number of new programs including: the Green Residential Building Grant Program, the Green Jobs – Green New York Program, the Municipal Sustainable Energy Loan Act, and improvements to net metering. While these and other State-level programs are vital to achieving emissions reductions goals and promoting sustainable communities, New York’s cities, towns, and villages have also been at work trying to develop and implement strategies to curb emissions. Municipalities are choosing to adopt clear statements and action items in their comprehensive land use plans, and they are creating climate change or sustainability task forces and developing strategies. Local governments are also enacting regulations to promote green building and alternative energy development. This article introduces the ways in which local governments have taken the lead in mitigating and preparing for climate change, focusing on the manner in which local governments have incorporated climate change concerns into the local land development regime.

Matt Festa

October 19, 2010 in Clean Energy, Climate, Environmental Law, Environmentalism, Green Building, Local Government, Scholarship | Permalink | Comments (0) | TrackBack (0)

Owley Lippman & Levy on Preservation as Mitigation under CEQA

Jessica Owley Lippman (Buffalo) and David C. Levy (Morrison & Foerster) have posted Preservation as Mitigation Under CEQA: Ho Hum or Uh-Oh?, published in Environmental Law News, Vol. 14, No. 1, p. 18, 2005.  The abstract:

Many local, state, and federal environmental laws contain provisions requiring mitigation of environmental harms caused by development projects. One such law is the California Environmental Quality Act (CEQA). CEQA requires environmental review of projects that have a significant impact on the environment and require discretionary approvals from public agencies. CEQA prohibits agencies from approving projects as proposed if there are feasible alternatives or mitigation measures available that would substantially lessen the environmental impacts of the projects. 

This article reviews California cases regarding use of preservation of agricultural land as mitigation and concludes that the California courts have not yet developed a coherent position. In a few published cases, the California appellate courts appear to accept the notion that preservation can meet mitigation requirements without discussion. In some unpublished decisions where courts addressed the issue head on, they reached the opposite decisions.

There are only two acceptable techniques for mitigating environmental impacts that involve the loss, destruction, or significant alteration of unique resources such as land or habitat: creation and enhancement. However, most laws (including CEQA) define mitigation more broadly to include notions of avoidance, minimization, and preservation. Such techniques should not qualify as mitigation because these strategies should be elements of project design. When beginning a project that may have significant environmental impacts, one should seek to avoid and minimize those effects from the onset. After those steps, one would mitigate the remaining impacts through creation or enhancement. Preservation as mitigation is inappropriate because it admits that destruction of the amenity will occur. It results in an overall net loss of the amenity. It may prevent future impacts, but it does not address present problems.

Matt Festa

October 19, 2010 in Agriculture, Conservation Easements, Environmental Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Ole Miss Announces EJ Writing Competition

From David Case:

The American Bar Association Section of Environment, Energy and Resources (ABA-SEER) and the University of Mississippi School of Law are planning a national Environmental Justice Symposium at the Ole Miss Law School in Oxford, Mississippi on April 1, 2011. In conjunction with this Symposium, ABA-SEER will hold an Environmental Justice Student Writing Competition and will be inviting law students to submit papers exploring current issues in environmental justice. Please note that the Writing Competition is in the process of being reviewed by the ABA Board of Governors in October 2010, and thus the official announcement of the Competition will follow that review. If you have any questions about the writing competition, please contact me, or Alexandra Dunn at

Jamie Baker Roskie

October 19, 2010 in Conferences, Environmental Justice, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, October 18, 2010

Salkin on Ethics for Land Use Attorneys

Patricia Salkin (Albany) has posted Relationships, the Rules of Professional Conduct and Land Use: Ethical Quagmires for Land Use Attorneys, published in the Real Estate Law Journal (2010).  The abstract:

Much has been written about ethics in the land use game in terms of reported court decisions and opinions of state attorneys general and statewide ethics bodies, but the literature is devoid of a focused examination on how bar association committees on ethics and professionalism (lawyers providing ethical guidance to other lawyers) apply the Rules of Professional Conduct to provide advice to the thousands of full-time and part-time attorneys who have a role in the planning and zoning process. This article begins to fill the void by introducing the application of the various Rules of Professional Conduct, as adopted by the specific opining jurisdiction, through a review of the relevant reported opinions of the various committees and sometimes courts, in the land use context. Part I discusses the challenges that arise for lawyers vis-à-vis their clients in the land use context. This is followed by a discussion in Part II of the ethics and professionalism issues that confront lawyers who serve on local boards.

Matt Festa

October 18, 2010 in Caselaw, Local Government, Planning, Politics, Scholarship, Zoning | Permalink | Comments (0) | TrackBack (0)

Walmart Goes Urban (Kind Of)...

Long derided as the antithesis of sustainable design, Walmart stores are typically surrounded in a sea of asphalt parking with, at most, some decorated facades designed to give off the feeling that its anything more than a suburban megastore.

Well, with the suburban markets drying up, Walmart has apparently decided it needs to target urban centers.  In order to do this, its stepping away from its huge prototype stores toward something slightly more compact:

Wal-Mart Stores Inc. is planning to open dozens of small stores in the nation's cities, in an effort to push back against the dollar chains and other competitors nibbling at its customers. The prospect of Wal-Mart stores dotting America's biggest cities would change the urban landscape and the profile of the world's largest retailer, known for its blocky suburban edifices stocked with low-cost goods.
The new stores, roughly a quarter to a third the size of a supercenter, largely will sell groceries. Bill Simon, head of Wal-Mart's U.S. stores business, said Wal-Mart envisions opening in the next few years 30,000- to 60,000-square-foot Neighborhood Market groceries and new, smaller outlets modeled on the bodegas it operates in Latin America. Its supercenters average 185,000 square feet.
Mr. Simon said he believes there is room for "hundreds" of small Wal-Mart stores in the U.S., offering food and consumer staples. The retailer first will test their urban appeal with 30 to 40 stores over the next few years before a full-scale launch.

Though its hard to consider a 60k square foot building as exactly neighborhood-scale, it will be interesting to see how Walmart handles the diminished parking availability in dense urban centers.

After all, without a car trunk, it might be difficult for these downtown Walmarts to induce guests to buy bags worth of stuff at a time.

--Chad Emerson, Faulkner U.

October 18, 2010 | Permalink | Comments (0) | TrackBack (0)

Sunday, October 17, 2010

Power e-book on Constitutional Limitations on Land Use Controls, Environmental Regulations, and Governmental Transactions

Garrett Power (Maryland) has posted Constitutional Limitations on Land Use Controls, Environmental Regulations and Governmental Exactions (2010 Edition).  This is a freely-available electronic casebook, searchable in PDF format.  The abstract:

This electronic book is published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland School of Law. It is an “open content” casebook intended for classroom use in courses in Land Use Control, Environmental Law and Constitutional Law. It consists of cases carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. It considers both the personal right to liberty and the personal right in property. The text consists of non-copyrighted material and readers are free to use it or re-mix it in whole or part. No rights are reserved. 

The readings provide an historical context, and an up-to-date focus on many of the constitutional issues facing today’s Supreme Court: imperium versus dominium; the public trust, inverse condemnation, the navigation servitude, the “regulatory taking” issue; the “navigability” boundary on federal power; the “public use” limitation on eminent domain; the balance between property rights and First Amendment liberties; the “essential nexus” between government prohibition and purpose, and; the fine line between taxation and expropriation. 

The 149 cases have been grouped into 35 "sessions." Most sessions consist of four or five tightly-edited cases, and provide readings appropriate for one class hour of discussion. The compilation is 956 pages in length.

What a wonderful source Professor Power has provided.  Whether you assign and teach out of this book, or use it for consultation, it is a terrific resource provided to the academic community at much effort and for no cost.  We should be very appreciative.

Matt Festa

October 17, 2010 in Caselaw, Constitutional Law, Environmental Law, History, Property Rights, Scholarship | Permalink | Comments (0) | TrackBack (0)

Lund on Salazar v. Buono and the Future of the Establishment Clause

Christopher C. Lund (Wayne State) has posted Salazar v. Buono and the Future of the Establishment Clause, forthcoming in Northwestern Law Review Colloquy

This short Colloquy essay reflects on the Supreme Court's recent decision in Salazar v. Buono, 130 S. Ct. 1803 (2010). The case involved a constitutional challenge, brought under the Establishment Clause, to a cross put up by private parties on government land in the Mojave National Preserve. This piece reviews the issues presented by the case (only some of which were addressed by the Supreme Court), and considers the future of the Establishment Clause in that light.

The Salazar case has been known publicity as a Religion Clause case, but the dispute centers around the constitutionality of a federal government land swap that allowed the monument to go into private hands.  The Supreme Court decision didn't quite reach the land question, but as with most religious monument/First Amendment cases, it is at bottom a controversy over land use.

Matt Festa

October 17, 2010 in California, Caselaw, Constitutional Law, Federal Government, First Amendment, Property Rights, Scholarship, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Friday, October 15, 2010

Parking Problems...

One of the major tenets of Traditional Neighborhood Developments is to replicate the on-street parking you find in many urban areas.  This helps slow down traffic which, in turn, provides a safer pedestrian environment.

Historically though, some fire departments have been skittish about this because of perceived access problem.  "Perceived" because its not always the reality.

Recently, the issue popped up in the Lost Rabbit development outside Jackson, Mississippi.

Here's the story:

The problem with parked cars clogging the narrow streets of Lost Rabbit may soon be gone. Madison County officials recently met with the neighborhood developer and officials of the Pearl River Valley Water Supply District, the owner of the property at the end of Madison's Hoy Road to work out a compromise. Mack Pigg, the county fire coordinator, said county officials expect a letter from the developer to go out soon to homeowners and contractors working there warning them not to park on the street or risk being towed.

The issue of a perceived versus real problem is explained later in the article by a spokesman for the Congress for New Urbanism:

The issue of narrow streets in traditional neighborhood developments is a perennial one, said Stephen Filmanowicz, with the Congress for the New Urbanism, a Chicago-based nonprofit that promotes walkable, mixed-used neighborhood development. "The streets in TNDs are expected to form highly connected networks, with lots of street crossings and no cul-de-sacs. This means many routes to any point," he said. "A problem is that most fire guidelines and fire codes assume a conventional street system. ... There's a corresponding insistence on wide streets to allow room for two pieces of equipment to pass each other. "In a well-designed TND, that's not necessary, since a driver of a fire truck could find a convenient alternate route, adding only seconds, if another truck were blocking the original route," he said.

--Chad Emerson, Faulkner U.

October 15, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, October 14, 2010

Call for Papers & Commentary

You may have noticed that there has been an upswing in the number of new article abstracts posted here on the blog recently (in addition to the heated Las Vegas debate).  I suspect that's because we are in the aftermath of the fall submission season.  Regardless, there has been an abundance of great new scholarship in land use lately.

I'd like to renew our general invitation to the land use community to let us know about any new papers, studies, or projects you may have that you think would merit some attention.  We would love to post your abstract, or to give you a platform to provide you a more detailed introduction to your scholarship, if you have some interesting thoughts to share.  We had some great guest-blogging earlier this year from Ken Stahl and Jim Kelly about their recent articles.  We look forward to hearing more about the new ideas in the field, so please feel welcome to contact us if you have a new article or would like to contribute to the discussion.  

Matt Festa

October 14, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Levitin and Wachter on Information Failure and the U.S. Mortgage Crisis

Adam J. Levitin (Georgetown) and Susan M. Wachter (Penn--Wharton, Real Estate) have posted Information Failure and the U.S. Mortgage Crisis.  The abstract:

This paper argues that during the housing bubble, housing finance markets failed to price risk correctly because of information failure caused by the complexity and heterogeneity of private-label mortgage-backed securities and structured finance products. Addressing the informational problems with mortgage securitization is critical not just for avoiding future housing bubbles but for rebuilding American housing finance. The continued availability of the long-term fixed-rate mortgage, which has been the bedrock of American homeownership since the Depression, depends on the continued viability of securitization. The paper proposes that mortgage securitization and origination be standardized as a way of reducing complexity and heterogeneity in order to rebuild a sustainable, stable housing finance market based around the long-term fixed-rate mortgage.

Matt Festa

October 14, 2010 in Financial Crisis, Housing, Mortgage Crisis, Mortgages, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Upcoming Brownfields Webinar

From my colleagues at UGA's Fanning Institute:

Brownfields Redevelopment in Georgia
Keeping Projects Moving Forward in an Uncertain Economy
October 26, 2010
11:00am - 12:30pm

Register at:

Join the Georgia Chapter of the National Brownfields Association and the University of Georgia’s Fanning Institute as we engage professionals from the finance, consulting, regulatory and development sectors in an interactive discussion of current brownfields projects and new ideas to promote the development of challenging properties. Our expert panel includes:

·      Darahyl Dennis, Chapter President, Georgia Chapter of the National Brownfields Association
·      Alex Cleary, Georgia EPD
·      Dan Grogan, MacTec
·      Madeleine Kellam, Georgia EPD
·      Matt Robbins, US EPA
·      Gerald Pouncey, Morris, Manning & Martin, LLP
·      Mark Smith, Georgia EPD
·      Charles Whatley, Atlanta Development Authority


·      Bill Bryant, Georgia Power
·      Courtney Tobin, Fanning Institute

This would probably be great for anyone working on brownfields.

Jamie Baker Roskie

October 14, 2010 in Development, Economic Development, Georgia, Redevelopment | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 13, 2010

Vegas, Sodom, Gomorrah, and other bogeymen

I have been put in the unenviable position of defending Las Vegas against the claim that it is a racy, uncultured, highly sexualized theme park.

I can't.

But I can say that having lived in Las Vegas for 11+ years, I have not had 1/20 of the bawdy experiences that journalist J.R. Moehringer had in his relatively short stay here.  I don't know who this Caligula neighbor is, but in my experience the omniscient and omnipresent homeowners association would have put a quick stop to his noisy escapades.  And none of the friends who have visited me here have been treated to backyard parties stocked with statuesque women named Dallas and Paris.  I am a boring host in a boring suburb.

The article reminded me of two things about Vegas that I think about almost weekly.  First, what possessed people to stop here in the first place?  I know that the easy answer is water.  Believe it or not, Las Vegas was once a relatively lush oasis amidst the otherwise stark Mojave desert.  But it is hard to conjure up that image when it is 115 degrees outside and you are surrounded by brown dust and rocks.  Of course, if you find yourself in these stark surroundings, you have undertaken a deliberate hike into the desert or taken a serious wrong turn, because most of Vegas is now an irrigated, landscaped, palm tree-lined park.

Second, one of the most charming features of Vegas (to me) is that it allows everyday people to experience the bacchanalia that is normally reserved for the rich or beautiful (or both) in other cities.  For one weekend, everyone is invited to Caligula's backyard to see how the other half lives.  Everyone is invited to strike it rich at craps or blackjack, surrounded by free drinks and beautiful people.  It's America's egalitarian, libertarian wonderland.

But I wouldn't know much about bacchanalia and blackjack.  Most weekends you'll find me on the couch, in the suburbs, watching football and reading email. 

Ngai Pindell, UNLV

October 13, 2010 in Humorous, Las Vegas | Permalink | Comments (3) | TrackBack (0)

Shirley Sherrod Gives First Speech Since Controversy

As I mentioned in a previous post, former head of Georgia Rural Development for the USDA Shirley Sherrod spoke Saturday night in Gainesville, Georgia.  The occasion was a banquet celebrating the 60th Annivesary of the Newtown Florist Club, a Land Use Clinic client.  There was a good turn-out for Sherrod's first speech since her ouster and the attempted re-hire by the Secretary of Agriculture.  (Read the latest press re: the government e-mails about the controversy, recently obtained through a FOIA request.)

Sherrod's speech was deeply personal.  She described the unpunished murder of her father by a white farmer in the 1960s, and how that event made her devote her life to changing things in the South.  Her feelings about her father's murder, and the extensive discrimination suffered by black farmers in Southeast Georgia, at first lead her to hesitate in helping a white farmer (when she was running a non-profit agency, before her time at USDA).  In telling the story of how she overcame that hesitation to help the white farmer, she became open to the accusations of racism that lead to her ouster, even though she was trying to make the point that, for her, rural development is not about race but about poverty.

Sherrod says she shared that story about the farmer back in July to show others that if she could overcome her own personal demons, then so could others. The story was meant to be used as an example and encouragement for others to come together.

"We can't just work in isolated groups, (all races) need to work together to make the changes in the world that we need to make," Sherrod said.

"It's not about black people by themselves and it's not about white people by themselves. Let's all come together as a community."

I came away with the impression that she plans to write a book about her life, and she vowed at the end of her speech to continue to speak out about racism.  It will be remarkable to see where she goes next, in her already remarkable life.

Jamie Baker Roskie

October 13, 2010 in Agriculture, Environmental Justice, Race | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 12, 2010

Salkin on Social Networking and Land Use Planning Regulation

Patricia Salkin (Albany) has posted Social Networking and Land Use Planning Regulation: Practical Benefits, Pitfalls and Ethical Considerations, forthcoming in the Pace Law Review.  The abstract:

This article explores how social networking sites have been used or might be used in the land use context. Part I focuses on the use of social networking for land use planning and zoning. It includes a discussion of the pros and cons of the use of social networking sites to present public information and to gather public input and invite general participation in the process, as well as to provide notice to the public of forthcoming government decision-making. This section offers concrete examples of how this technology is currently being used in the land use context. Part II focuses on the professional ethical considerations of the various players in the land use game as it specifically relates to the use of social networking sites. For lawyers, the applicable Rules of Professional Conduct are examined and for Planners, the Code of Ethics of the American Institute of Certified Planners (AICP) is explored for guidance. The article concludes with a warning that that although there are benefits to the use of social networking tools for land use planning and zoning initiatives, attorneys, government agencies, planners and others should use caution when employing these tools, being certain to weigh ethics and professionalism implications, social justice goals and public participation mandates and aspirations against the advantages of these tools, and the uncertainty of how courts might apply myriad legal mandates in cyberspace.

Matt Festa

October 12, 2010 in Local Government, Property Rights, Property Theory, Zoning | Permalink | Comments (0) | TrackBack (0)

Malloy on Real Estate Transactions and Entrepreneurship

Robin Paul Malloy (Syracuse) has posted Real Estate Transactions and Entrepreneurship: Transforming Value Through ExchangeIndiana Law Review, Vol. 43, p. 1105, 2010 .  The abstract:

This article grows out of a paper presented at the 2010 Annual Meeting of the AALS. It was presented at a joint session sponsored by the AALS sections on Real Estate Transactions and Property Law. The article makes three key points.

1) It explains, from a transactional perspective, the relationship between property law and the law of real estate transactions.

2) It explains the growing significance and enhanced strategic value of real estate transactions law relative to property law.

3) It calls for development of a deeper theory of real estate transactions, independent of property law theory, and suggests that such a theory ought to account for the relationship between real estate transactions and entrepreneurship. Suggestions are offered with respect to the meaning of entrepreneurship, and different types of entrepreneurial styles/motives that might operate in real estate markets.

Matt Festa

October 12, 2010 in Property Theory, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Reiss on First Principles for an Effective Federal Housing Policy

David J. Reiss (Brooklyn) has posted First Principles for an Effective Federal Housing Policy, forthcoming in the Brooklyn Journal of International Law.  The abstract:

Federal housing policy is heavily funded and made up of a morass of programs. This article provides a taxonomy of goals for housing policy. The article first asks what the aim of housing policy is. In other words, what can a well-designed and executed housing policy achieve? The answer to this question is not at all clear-cut. Some argue that the aim of housing policy is to allow all Americans to live in safe, well-maintained and affordable housing. Others argue for a more modest aim – achieving an income transfer to low- and moderate-income families that mandates that the income transferred is consumed in increased housing. And yet others argue that the main aim is to create a nation of homeowner-citizens, a goal which hearkens back to Jefferson’s idealized “yeoman farmer” and continues through to George W. Bush’s “ownership society.”

Beginning with these possibilities, I identify and categorize various “principles” of American housing policy. This is an important exercise because 80 plus years of housing policy; hundreds of billions of dollars; and literally hundreds of different housing programs have all conspired to confuse the essential aims of American housing policy. This article seeks to clarify debates surrounding American housing policy as the Obama Administration puts its own stamp on this field.

Matt Festa

October 12, 2010 in Affordable Housing, Federal Government, History, Housing, HUD, Scholarship | Permalink | Comments (0) | TrackBack (0)

Miller on Strategic Default

Meredith R. Miller (Touro) has posted Strategic Default: The Popularization of a Debate Among Contract Scholars, Cornell Real Estate Journal, Vol. 9, Forthcoming .  The abstract:

A June 2010 report estimates that roughly 20% of mortgage defaults in the first half of 2009 were “strategic.” “Strategic default” describes the situation where a home borrower has the financial ability to continue to pay her mortgage but chooses not to pay and walks away. The ubiquity of strategic default has lead to innumerable newspaper articles, blog posts, website comments and editorial musings on the morality of homeowners who can afford to pay but choose, instead, to walk away. This Article centers on the current public discourse concerning strategic default, which mirrors a continuing debate among scholars regarding whether the willful breach of a contract has a moral element.

For those scholars that maintain that it is possible to describe and prescribe contract law with a general, unifying theory, the debate is primarily one between promise-based theories and economic theory. This debate between promissory and economic theory reflects a perpetual volley concerning whether contract law should reflect the primacy of morality or efficiency. 

The argument of those that support strategic default reads like a case for efficient breach. Many of these commentators argue that the mortgage contract simply presents home borrowers with a choice: pay or surrender the property in foreclosure. If a homeowner is deep underwater, she is better off defaulting and the lender is no worse off relative to the bargain (after all, the lender agreed to foreclosure as a remedy). However, those who argue in favor of strategic default are counteracting a prevailing social norm that it is fundamentally immoral to willfully breach a contract. Many of the blog comments and even newspaper editorials have reflected a general sense that the homeowners who strategically default are acting shamefully.

The public discussion further mirrors the academic debate about whether encouraging efficient breach enables the greatest public good or, instead, undermines the very convention of contracting. On the one hand, strategic default serves as an example of how encouragement of breach of contract may lead to a breakdown of confidence in the marketplace and, in turn, could inhibit market activity. On the other, it is difficult to muster sympathy for lenders, whose imprudent loans are a large piece of the systemic problems that precipitated the housing crisis.

In the end, to the extent that questions of morality are nuanced and contextual, the example of strategic default elucidates the futility of either morality or efficiency as a unifying descriptive or normative theory of contract law. Indeed, it suggests that instead of focusing on individual contracts between borrowers and lenders, a more fruitful public discourse should be reframed to focus on appropriate systemic reforms to prevent the practices that played a part in devastating outcomes for the housing industry, families and communities. Because the concerns about strategic default – neighborhood depreciation and market collapse – are systemic, the solutions should be driven by those concerns, rather than shaming individual borrowers who decide to walk away.

Matt Festa

October 12, 2010 in Contracts, Finance, Financial Crisis, Mortgage Crisis, Mortgages, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Is Vegas a Sodom and Gomorrah Theme Park?

Contiuning in our Las Vegas theme, I ran across an article in the October issue of Smithsonian magazine by someone who dislikes Vegas even more than I.  Journalist J.R. Moehringer lived in Vegas while collaborating on a book with Andre Aggasi, and he has this to say about America's playground:

Vegas isn’t a real city. It’s a Sodom and Gomorrah theme park surrounded by hideous exurban sprawl and wasteland so barren it makes the moon look like an English rose garden.


No matter what you read about Vegas, no matter where you read it, this assertion invariably pops up, as sure as a face card in the hole when the dealer’s showing an ace. Vegas is unlike any other American city, and yet Vegas is America? Paradoxical, yes, but true. And it’s never been more true than during these past few years. Vegas typified the American boom—best suite at the Palms: $40,000 a night—and Vegas now epitomizes the bust. If the boom was largely caused by the housing bubble, Vegas was bubble-icious. It should be no surprise, therefore, that the Vegas area leads the United States in foreclosures—five times the national rate—and ranks among the worst cities for unemployment. More than 14 percent of Las Vegans are without work, compared with the national rate of 9.5 percent.


I’ll miss the whole seamy, seedy, icky, apocalyptic tawdriness of it all. While I was busy hating Vegas, and hiding from Vegas, a funny thing happened. I grew to love Vegas. If you tell stories for a living or collect them for fun, you can’t help but feel a certain thrill at being in a place where the supply of stories—uniquely American stories—is endless.

That doesn’t mean I’m staying. Vegas is like the old definition of writing: though I don’t enjoy writing, I love having written. Though I didn’t enjoy Vegas, I love having lived there.

Read the whole article here.

Jamie Baker Roskie

October 12, 2010 in Development, Exurbs, Humorous, Las Vegas | Permalink | Comments (0) | TrackBack (0)