Tuesday, January 25, 2011
From Teresa Clemmer:
We are recruiting a new law fellow to head up the toxics program within the environmental clinic at Vermont Law School, known as the Partnership for Justice. In collaboration with Toxics Action Center, the law fellow will be helping to supervise JD students in providing legal advice to communities dealing with contaminated sites and toxic pollution sources throughout northern New England. The law fellow is expected to work part-time in the clinic for two years while pursuing an LLM degree. The fellowship includes a full tuition waiver, $35,000 stipend, and health benefits. Please pass this along to anyone you know who might be interested. For more information, please see the announcement on our website and contact our Litigation Paralegal and Office Manager, Monica Litzelman, at email@example.com with any questions.
Jamie Baker Roskie
Monday, January 24, 2011
The Seaside development in South Walton County, Florida has been one of the higher profile new urban projects over the years. Master-planned by Andres Duany and the DPZ firm, the project has been featured in numerous magazines, case studies, and even as the set for Jim Carrey's The Truman Show.
In addition to being a fascinating place to visit and explore, the founders had the foresight early on to set up a non-profit organization to advance the land use principles that Seaside represents.
Known as "The Seaside Institute", the organization recently came under the leadership of an excellent new Executive Director and has published a new website with many interesting New Urban land use resources.
Chad Emerson, Faulkner
The most viewed business article today on the Boston Herald website examines the next foreclosure-mess case coming to the Supreme Judicial Court of Massachusetts and its impact on the title marketability of foreclosed homes there. Francis Bevilacqua paid for a property in Haverhill, Mass. pursuant to a foreclosure on a mortgage in a securitized trust supervised by U.S. Bancorp. Judge Keith Long of the Massachusetts Land Court found that Bevilacqua had no title to the property because the foreclosure was invalid. In its recent decision in U.S Bank v. Ibanez (see my earlier post), the SJC upheld another Judge Long decision finding a completed U.S. Bank foreclosure to be invalid.
According to an attorney quoted about the foreclosure buyer's predicament, even should he lose on appeal, Mr. Bevilacaqua may be able to take advantage of a color-of-title-shortcut adverse possession statute and obtain valid title in as little as three years. (To think, I was concerned that nonjudicial foreclosures and botched mortgage securitizations might combine to create serious, widespread title problems.) Stay tuned, the SJC will hear the case in April.
William & Mary Law School has announced that the 2011 Brigham-Kanner Prize will be awarded to Justice Sandra Day O'Connor at the Eighth Annual Brigham-Kanner Property Rights Conference, which will be held Oct. 14 & 15, 2011 in Beijing, China. Per W&M's website, "the conference is designed to bring together members of the bench, bar and academia to explore recent developments in takings law and other areas of the law affecting property rights." Past honorees include Frank Michelman, Richard Epstein, Peggy Radin, Bob Ellickson and Carol Rose.
Sunday, January 23, 2011
One of the strongest advocates for sustainable development is none other than Prince Charles of England.
His organization, The Prince's Foundation for the Built Development, is a leading advocate and developer of context sensitive development that balances pedestrian needs, vehicular needs, and sustainability needs.
They are now embarking on another noble project--a charrette that focuses on the redevelopment of Haiti following the earthquake.
You can follow the project and gather details here.
Saturday, January 22, 2011
Don Fullerton (Illinois-Finance) has posted Six Distributional Effects of Environmental Policy on SSRN. Here's the abstract:
While prior literature has identified various effects of environmental policy, this note uses the example of a proposed carbon permit system to illustrate and discuss six different types of distributional effects: (1) higher prices of carbon-intensive products, (2) changes in relative returns to factors like labor, capital, and resources, (3) allocation of scarcity rents from a restricted number of permits, (4) distribution of the benefits from improvements in environmental quality, (5) temporary effects during the transition, and (6) capitalization of all those effects into prices of land, corporate stock, or house values. The note also discusses whether all six effects could be regressive, that is, whether carbon policy could place disproportionate burden on the poor.
January 22, 2011 in Affordable Housing, Architecture, Clean Energy, Climate, Environmental Law, Environmentalism, Green Building, Housing, Oil & Gas, Sustainability, Wind Energy | Permalink | Comments (0) | TrackBack (0)
Friday, January 21, 2011
The nice thing about land use and development is that it's a very multi-disciplinary field of work. Lawyers, architects, engineers, planners, developers, and many others work closely together. Getting to interact with these different people is one of the reasons I was drawn to this area of the law.
Along those lines, I also try to follow multi-disciplinary blogs that address land development topics.
One of my recent favorites is the PlaceShakers blog that offers many different (and often non-traditional) viewpoints on all things related to the world of development.
You can check it out here. I highly recommend it.
Chad Emerson, Faulkner
Thursday, January 20, 2011
Prentiss Cox (Minnesota) has posted Keeping Pace?: The Case Against Property Assessed Clean Energy Financing Programs. The abstract:
Property Assessed Clean Energy (“PACE”) is a method of public financing for energy improvements through special assessments on local government property taxes. Interest in PACE exploded from its origination in 2008, with almost half the states rapidly enacted legislation enabling local governments to use their property collection power for this purpose. The growth in PACE is now suspended, and existing programs have been put on hold, in the face of opposition from the federal secondary mortgage market regulators. Governments and environmental advocates supporting PACE have initiated litigation against the federal regulators and are seeking passage of federal legislation to revive the programs. This Article argues that the theory underlying PACE is fundamentally flawed. PACE has been promoted as an alternative to traditional real estate financing that resolves the impediments to homeowners investing in alternative energy and energy efficiency. A careful analysis of these claims demonstrates that PACE in actual practice will operate similarly to most other types of real estate financing, and that the efforts to reconstruct PACE programs through litigation or legislation are misplaced. Instead, PACE programs should be radically restructured or should be considered a creative yet failed experiment offering valuable lessons for future residential energy investment programs.
Following up on a post I made last week, I wanted to share an item that might be useful to those of us trying to teach on (and/or sort out ourselves) the ongoing mortgage mess. Tracy Alloway of Financial Times has put up a blog post illustrating (literally) the tangled web of mortgage securitization missteps that led to the Massachusetts Supreme Judicial Court's recent ruling in U.S. Bank v. Ibanez.
We have in the United Kingdom new planning restrictions on multiple occupation (somewhat similar to those in Belle Terre but centrally facilitated). These now make it possible for local authorities to restrict three or more sharers from living in a house in a neighbourhood that is already ‘saturated’ with multiple occupants.
I can (and often do) discuss the rights and wrongs of this for hours and so I was fascinated by an article by George Monbiot, a thoughtful, often crusading environmental journalist, on under-occupation of housing. As his article explains, this is an issue that is rarely discussed, except in the context of public housing where elderly occupants may be incentivised to move to smaller housing, freeing up family-sized accommodation for others in need.
Yet, according to Monbiot’s research, in the UK, 37% of the housing stock (nearly 8 million homes) is under-occupied, defined as residents having two or more spare bedrooms.
In a spacious country this may barely raise an eyebrow but the UK is a crowded island, where only a minority live in large, detached homes. Monbiot discounts divorce, falling fertility rates or a growing elderly population as causes and comes up with a prime suspect: money. As he puts it: ‘the richest third of the population has discovered that it can spread its wings’. Politicians wary of the grey vote even provide tax incentives to living alone even while societal benefits might be gained by greater sharing. With so many young people renting together and unable to buy a home, the ‘battle of the generations’ is inevitably also taking spatial form.
Ira Lupu (GW) and Robert Tuttle (GW) have posted The Forms and Limits of Religious Accommodation: The Case of RLUIPA, 32 Cardozo L. Rev ___ (forthcoming 2011), on SSRN. Here's the abstract:
This paper, prepared for a Symposium at the Benjamin Cardozo School of Law to mark the 20th anniversary of the Supreme Court’s decision in Employment Division v. Smith, focuses on the constitutionally appropriate forms for, and limits on, government protection of religious freedom. Part I articulates in general terms the primary constitutional strategy of mandatory accommodations – protection of religion and its secular analogues in matters of speech, association, and equality – and the limits on such accommodations, with an emphasis on a jurisdictional limit to the state’s capacity to decide questions of religious significance. Part II extends this concept of a jurisdictional limit to permissive accommodations, and analyzes the role of that limit in the interpretation of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). Part II argues that many of the land use provisions of RLUIPA can be constitutionally applied without official decision-makers violating that jurisdictional limit, but that some applications of the land use provisions, and a significant number of applications of the institutionalized persons provisions, raise profound problems of state exercise of religious authority.
Wednesday, January 19, 2011
Tanya D. Marsh (Wake Forest) has posted Foreclosures and the Failure of the American Land Title Recording System. The abstract:
In this essay, Marsh argues that the current foreclosure crisis should serve as a wake-up call for a long-overdue modernization of the American land title recording system. Lenders invented the Mortgage Electronic Registration System (MERS) because the land title system, developed in a far different time and place, failed to meet the needs of the modern real estate industry. But a private MERS-like system is not the answer. Instead, Marsh argues that the federal government should implement a solution that replaces both the existing local land title system and MERS.
An ideal system should be organized around some clear principles. It should be transparent. It should be easy to search, through dynamic, robust indexing, and easy to access, preferably through the Internet. Documents in PDF form should be down-loadable. Electronic filing should be facilitated. There should be uniformity and consistency in the rules governing the form and substance of documents eligible for recording. The system should be public. Establishing and protecting a clear registry of property interests is and should continue to be an essential function of government.
Last week we posted a link to the new article by David Matthew Levinson (Minnesota) and Bhanu Yerra (Minnesota), How Land Use Shapes the Evolution of Road Networks. Here's another road article from Levinson and Jason Junge (Minnesota): Property Tax on Privatized Roads. The abstract:
Roads cover a significant fraction of the land area in many municipalities. The public provision of roads means this land is exempt from the local property tax. Transferring roads from public to private ownership would not only remove maintenance costs from city budgets, but increase potential property tax revenue as well. This paper calculates the value of the land occupied by roads in sample cities and determines the potential revenue increase if they were subject to property tax. Further calculation computes the extent to which the property tax rate could be reduced if the land value of roads were added to the tax base. Property tax on privatized roads could generate meaningful revenue, but a corresponding reduction in rate for existing property would be small.
Tuesday, January 18, 2011
Peter G. Turner (St. Catharine's College, Cambridge) has posted Degrees of Property. The abstract:
Navigating a way through a complex idea such as property can be tricky. What guides do we have? Jeremy Bentham showed the way by pointing out that property is rights in relation to things, not the things themselves. But the celebrated “dematerialisation” or “dephysicalisation” of property has left property jurisprudence, courts and students feeling disorientated. The first argument of this article is that lawyers in fact navigate their way through property’s complexity guided by a materialist archetype of property, even where the asset in question has no material existence at all. This argument contradicts a prominent vein of mainstream scholarship going back to Bentham’s account of property.
The supporting evidence indicates that lawyers are also guided by a second tool: the perception that property has varying degrees of strength. This forms the basis of a second theoretical argument. Scholars and courts say that property is not “monolithic”, but leave their assertions undeveloped. Using a large and unnoticed body of evidence that lawyers understand property in terms of its varying degrees of strength, this article gives the first developed account of why property is not monolithic.
The result is to put property analysis on a footing which enables us to attempt to explain the whole of the legal concept of property, where Bentham’s advice only disables us from doing so. The article’s findings impact on property jurisprudence, the workings of the courts and on legal education.
Kermit Lind just alerted me to a case the rest of you are probably already following, Connecticut vs. American Electric Power. Following is a synopsis from the Climate Change and Clean Technology Blog.
On December 6, 2010, the Supreme Court granted certiorari in American Electric Power Co. v. Connecticut, a federal nuisance case on appeal from the Second Circuit. Plaintiffs -- eight states, the City of New York and three non-profit land trusts -- seek abatement and reduction of greenhouse gas emissions from defendants, who include some of the United States’ largest electric utility companies. The Second Circuit ruled that: (1) the case did not present a non-justiciable political question, (2) the plaintiffs have standing, (3) the plaintiffs stated claims under the federal common law of nuisance, (4) the plaintiffs' claims are not displaced by the Clean Air Act ("CAA"), and, finally, (5) the Tennessee Valley Authority (“TVA”), a quasi-governmental defendant, is not immune from the suit. See Connecticut v. American Electric Power Co., 582 F.3d 309 (2nd Cir. 2009).
This is a case to watch out for during this Supreme Court term.
Read more here.
Jamie Baker Roskie
January 18, 2011 in Climate, Environmentalism, Federal Government, Industrial Regulation, Land Trust, Local Government, New York, Nuisance, Property Rights, State Government, Supreme Court | Permalink | Comments (0) | TrackBack (0)
In the small world department, at a wedding in December I met a student of Patricia Salkin's. Andrew Stengel, a "non-traditional" second-year student at Albany Law School, is a member of the school’s Government Law Review. Andrew has also served in a variety of positions in government and progressive advocacy organizations. He worked as the political director for Harvey Weinstein, co-founder of Miramax Films, and he got his start in the administration of Gov. Mario Cuomo.
Andrew e-mailed me recently to let me know about his recent posts on the Government Law Review blog regarding a plan to put a carousel in an area of a park in Brooklyn that is meant to be protected in perpetuity as a natural and scenic area. Read his posts here and here.
Jamie Baker Roskie
UPDATE - on April 10, 2011 a federal judge in New York temporarily blocked the plan for a carousel. Stay tuned!
Polly J. Price (Emory) has posted Federalization of the Mosquito: Structural Innovation in the New Deal Administrative State, Emory Law Journal vol. 60 (2010). The abstract:
Malaria was a significant problem in the southern United States during the early decades of the twentieth century. Part of President Franklin D. Roosevelt’s New Deal focused on economic development of the South, with improvement of public health in that region as an integral part. This Article is a case study of increased federal public health efforts during the New Deal and World War II eras, which replaced some traditionally state and local areas of control. Efforts to "federalize" the mosquito encountered significant limitations, and never accomplished primary federal responsibility for the eradication of malaria. One federal agency in particular - the Office of Malaria Control in War Areas - institutionalized the federal response to malaria in the South during World War II. This assertion of wartime jurisdiction maintained only nominally the primacy of state authority.
The New Deal administrative state saw structural experimentation and innovation at a grand level; this Article’s study of federal efforts to combat malaria in the southern United States provides a good example. In one decade, federal efforts ranged from Works Progress Administration employment, experiments with scientific expertise within the Tennessee Valley Authority, federal intervention in civilian areas as a war strength rationale, and malaria control by federal appropriation. The most significant step resulted from reorganization of the New Deal administrative state under the Federal Security Agency, an independent agency of the U.S. government established pursuant to the Reorganization Act of 1939.
From a federalization perspective, a critical point is that the federal government initiated a malaria eradication effort with broad jurisdiction that helped reshape public perception of the federal government’s responsibilities. It did so under a "national security" mandate that blurred the distinction between domestic and international security, with an effect on the federal government’s regulatory power. But the federal government then withdrew from this wartime assertion of jurisdiction, leaving public health federalism largely unchanged.
The New Deal and of the rise of the administrative state had some significant land use stories that are not as well known as they should be.
Monday, January 17, 2011
Robert Deal (Marshall--History) has posted The Judicial Invention of Property Norms: Ellickson’s Whalemen Revisited. The abstract:
Robert C. Ellickson has argued that whalemen developed norms to settle arguments over contested whales. These norms, Ellickson explained, were largely adopted by courts as the property law of whaling. Ellickson’s point is that whaling norms “did not mimic law; they created law.” Ellickson is certainly correct that the close-knit community of nineteenth century American whalemen managed to settle disputes in ways which maximized group welfare. What Ellickson has failed to recognize is that that the means by which whalemen resolved disputes without violence or frequent involvement of courts was built not upon widely accepted norms, but rather upon the application of some rather general maxims that were often poorly understood even by experienced captains and crews. Whaling disputes were, in fact, most often settled through compromises grounded in inchoate notions of what constituted honorable behavior arising out of the particular situation and parties involved.
In seeking to settle the handful of litigated disputes, judges drafted opinions that suggested a level of agreement among whalemen as to prevailing norms that never existed at sea. The scholarly acceptance that judges accurately stated whaling customs explains the mistaken belief that whalemen created the American property law of whaling. Instead, judges and the lawyers who represented ship owners were to a large degree responsible for creating much of what came to be memorialized in legal treatises by the end of the nineteenth century as the property law of whaling.
A close examination of trial transcripts and depositions from two of the five whaling disputes from the Sea of Okhotsk that were litigated in the nineteenth century reveals the vagaries of whaling norms and the problems in using judicial opinions to recover such practices. In Heppingstone v. Mammen, it is impossible to draw from the testimony of crew members and expert witnesses anything resembling a norm upon which battles over contested whales could be resolved at sea or in court. The court’s misunderstanding in Swift v. Gifford of whaling practices was quickly accepted by legal scholars as definitive evidence that the whaling fleet in the North Pacific had adopted a single standard for determining when an interest in a fleeing whale ripened into ownership.
Whalemen in the Sea of Okhotsk proved adept at resolving controversies on a common sense, ad hoc basis without universal norms. The close knit nature of their community, the intensely communal nature of their competition, and the economic pressure to settle disputes allowed Okhotsk whalemen to resolve contests without the aid of well settled norms.
I'm teaching Ghen v. Rich on Wednesday as part of the classic "wild animal" trilogy of cases (with Pierson v. Post and Keeble) on the norms and laws regarding how humans reduce fugitive resources to property by establishing first possession. So I'm having fun reading this well-written and historically rich article that challenges some received wisdom!
There is a new vision of home that is beginning to gain ascendance, at least from the point of view of legal actors and doctrine in the criminal justice system. Under this vision, home is not always, or even usually, “sweet.” Under this new vision, the home is not a safe haven, inviolate and inviolable except for, perhaps, a burglar. Under this new vision, the home is a place of violence. And not violence perpetrated by intruders, but by co-habitants. The home, notionally a site of security, a place “safe” from outside intervention, now functions as a place that enables abuse, assault, and rape. It is the exemplary place of coercion. The home, in this re-vision, has metastasized into the scene of the crime. In short, home has become “where the crime is.”
What are we to make of this shift in how the law perceives the home, and how we perceive the home? What are the collateral consequences of this shift? These are the questions Jeannie Suk takes up in her provocative At Home in the Law. This Review assesses Suk’s claims critically, turns to some of the collateral effects of this shift that Suk elides, and switches lenses to reveal a larger, more troubling picture.
The review--as well as Suk's prizewinning book--doesn't focus on land use per se as much as family law, domestic violence, and privacy. But as we all know, the concept of the home plays a huge role in the law and politics of land use, and both of these works reflect some very siginificant thinking about the meaning of the home in American culture and law.