Tuesday, March 6, 2012
It was great to see Matt, Ngai, Ken, Steve Clowney (PropertyProf blog) and a bunch of other friends at ALPS this past weekend. I was very glad to have the chance to meet Lisa Alexander (Wisconsin), whose scholarship Matt (here) and I (here) have blogged about before. Lisa has posted a new work, Hip-Hop and Housing: Revisiting Culture, Urban Space, Power, and Law, 63 Hastings L. J. 803 (2012). Here's the abstract:
U.S. housing law is finally receiving its due attention. Scholars and practitioners are focused primarily on the subprime mortgage and foreclosure crises. Yet the current recession has also resurrected the debate about the efficacy of place-based lawmaking. Place-based laws direct economic resources to low-income neighborhoods to help existing residents remain in place and to improve those areas. Law-and-economists and staunch integrationists attack place-based lawmaking on economic and social grounds. This Article examines the efficacy of place-based lawmaking through the underutilized prism of culture. Using a sociolegal approach, it develops a theory of cultural collective efficacy as a justification for place-based lawmaking. Cultural collective efficacy describes positive social networks that inner-city residents develop through participation in musical, artistic, and other neighborhood-based cultural endeavors. This Article analyzes two examples of cultural collective efficacy: the early development of hip-hop in the Bronx and community murals developed by Mexican immigrants in Chicago's Pilsen neighborhood. These examples show that cultural collective efficacy can help inner-city residents mitigate the negative effects of living in a poor and segregated community and obtain more concrete benefits from urban revitalization in their communities. Cultural collective efficacy also provides a framework to examine important microdynamics in the inner-city that scholars and policymakers have ignored. Lastly, this Article devises new combinations of place-based laws that might protect cultural collective efficacy, such as: (1) historic districts with affordable housing protections secured through transferable development rights, (2) foreclosure prevention strategies, (3) techniques to mitigate eminent domain abuse, and (4) reinterpretations of the Fair Housing Act's "affirmatively furthering" fair housing mandate. These examples of place-based lawmaking may more effectively promote equitable development and advance distributive justice in U.S. housing law and policy.
Monday, March 5, 2012
Hanoch Dagan (Tel Aviv) has posted Inside Property, forthcoming in University of Toronto Law Journal, Vol. 63, No. 1, January 2013. The abstract:
Taking seriously the complexity and heterogeneity of property law, this Essay claims that a proper conception of property must account for both governance and inclusion. Neglecting governance obscures the significance of the internal life of property, which is often structured by sophisticated mechanisms aiming to facilitate various forms of interpersonal relationships in ways that no contractual arrangement can. Ignoring inclusion improperly marginalizes non-owners’ rights to entry in categories of cases where inclusion is an indispensable feature of the property institution under examination.
Looking inside property in these two senses requires abandoning the conception of property as an exclusive right and substituting it with a pluralist conception. Property should be understood as an umbrella for a limited and standardized set of institutions, which serve as important default frameworks of interpersonal interaction regarding various types of resources. At its best, the plurality of property configurations — the different contents of owners’ rights in these different property institutions — enables property law to vindicate differing balances among the different values that property can serve, according to the type of social relationship and the nature of the resource at stake. The pluralist conception of property, therefore, not only fits property law better; it is also the only understanding of property suitably attending to and facilitating the individuality-enhancing role of multiplicity, which is indispensable for meaningful autonomy.
Ilya Somin (George Mason) has posted What if Kelo v. City of New London had Gone the Other Way?, published at Indiana Law Review, Vol. 45, No. 1, pp. 21-39, 2011 (What If Counterfactuals in Constitutional History Symposium) . The abstract:
Kelo v. City of New London is one of the most controversial decisions in U.S. Supreme Court history. The Kelo Court held that the Public Use Clause of the Fifth Amendment allows government to condemn private property and transfer it to other private parties for purposes of “economic development.” This Article considers the question of what might have happened if the Supreme Court decided Kelo v. City of New London in favor of the property owners. Such counterfactual analysis may seem frivolous. But it is, in fact, useful in understanding constitutional history. Any assessment of the impact of a legal decision depends on at least an implicit judgment as to the likely consequences of a ruling the other way. Analysis can be improved by making these implicit counterfactual assumptions clear and systematically considering their implications.
Part I briefly describes the Kelo case and its aftermath, focusing especially on the massive political backlash. That backlash led to numerous new reform laws. However, many of them turned out to be largely symbolic. Part II discusses the potential value of a counterfactual analysis of Kelo. It could help shed light on a longstanding debate over the effects of Supreme Court decisions on society. Some have argued that court decisions have little impact, mostly protecting only those rights that the political branches of government would protect of their own accord. Others contend that this pessimistic view underrates the potential effect of Supreme Court decisions.
Part III considers the possible legal effect of a ruling in favor of the property owners. Such a decision could have taken several potential forms. One possibility is that the Court could have adopted the view advocated by the four Kelo dissenters: that economic development condemnations are categorically forbidden by the Public Use Clause. This would have provided strong protection to property owners and significantly altered the legal landscape. On the other hand, the Court could easily have decided in favor of the property owners on one of two narrower grounds. Such a ruling would have led to much weaker protections for property owners.
Part IV weighs the potential political impact of a decision favoring the property owners. Such an outcome might have forestalled the massive political backlash that Kelo caused. Ironically, a narrow ruling in favor of the owners that did not significantly constrain future takings might have left the cause of property rights worse off than defeat did. On the other hand, a strong ruling categorically banning economic development takings would likely have done more for property rights than the backlash did, especially considering the uneven nature of the latter. Furthermore, political movements sometimes build on legal victories, as well as defeats, as happened in the case of the Civil Rights movement in the wake of Brown v. Board of Education. It is possible that property rights advocates could have similarly exploited a victory in Kelo.
Friday, March 2, 2012
Greetings from the 3d annual meeting of the Association for Law, Property & Society (ALPS) at Georgetown Law Center in DC. Day 1 was great, with a lot of very interesting presentations. Most importantly (for me), I'm done, so I can relax and enjoy tomorrow's panels. My co-bloggers Jim Kelly and Ken Stahl still have to present tomorrow! Lots of other esteemed colleagues are here to discuss their current research, as is appropriate for what has quickly become the premier conference for academic property and land use law.
If you couldn't make it but would like to see what's going on at ALPS this year, you can check out the conference program at the link.
Jerrold A. Long (Idaho) has posted Overcoming Neoliberal Hegemony in Community Development: Law, Planning, and Selected Lamarckism. The abstract:
Law constrains our behavior, both individually and collectively. Legitimate law is that law that emerges from an inclusive process that identifies a governed community’s collectively imagined future for a place, while respecting the concerns of necessarily oppressed minority interests. In the land use context, we use comprehensive land-use plans to identify and communicate a vision that motivates binding behavioral changes — i.e., plans create visions that are sufficiently attractive to motivate communities to act in meaningful ways. To the extent law emerges from an inclusive and effective community plan, it is legitimated by that plan. But a planning process that relies exclusively on letting visions emerge from a community necessarily prefers those visions that provide individual economic benefits to specific participants — e.g., the growth machine. Public goods — even public goods that might represent the “best” vision for a particular community — are not championed, supported, or developed in the planning process. Combined with a general trend toward neoliberal governance, and the weak legal position of comprehensive plans, this inherent preference for the growth machine over the public good yields land-use ordinances that are unrelated to what might be the best vision for a community. The remedy is twofold. If planning’s purpose is to achieve public goods, planners must be willing to represent the unrepresented, potentially forcing particular visions on communities during the planning process rather than waiting for private-good-driven visions to emerge, at least initially. And the forced visions must be sufficiently specific so as to limit the universe of legal choices, and land-use consequences, that result. If the forced vision is useful — if it is a public good — the community will adopt it. Without the forced vision, it does not have that opportunity.
As coincidences go, I just had the pleasure of meeting Jerrold for the first time tonight at the ALPS reception, and then came back to jump on the interwebs and see that he has one of the most recently-posted land use papers on SSRN. So check it out.
Thursday, March 1, 2012
Landmark Texas Groundwater Ruling
On February 24, two years after oral argument, the Texas Supreme Court in Edwards Aquifer Authority v. Day, held that property owners own their groundwater in place and that a denial of the right to use groundwater could be considered a taking under the Texas Constitution. After being denied a permit to drill a well by the local water authority, two Texas landowners sued claiming that the denial of access to their groundwater constituted a compensable taking. The Supreme Court, in a lengthy opinion, analogized groundwater rights to the rights of oil and gas in Texas. Under Texas law, the rights to oil and gas (and now groundwater) are owned “in place,” meaning that the landowner does not have to first capture the substances before claiming a right to them.
The Court remanded the case to determine whether a regulatory taking had occurred under the Penn Central factors established by the U.S. Supreme Court in 1978. Under this fact-intensive test, a court looks to the economic impact of the regulation, the interference with investment-backed expectations, and the character of the government action. The Texas Supreme Court acknowledged some of the difficulties in applying the Penn Central test to groundwater. Unlike oil and gas, groundwater can be replenished, and many beneficial uses of groundwater do not involve sales. The Court’s holding will inevitably lead to a spate of litigation in Texas over which government actions regarding groundwater constitute a compensable regulatory taking and how much to compensate the landowner. There is a fear that the threat of litigation will lead resource-strapped water authorities to less vigorously regulate the use of groundwater.
Will this ruling have any impact outside of Texas? Texas is one of the few states that maintains the absolute capture rule for groundwater. Basically, a landowner is entitled to all the water that she can pump out of the ground, regardless of the effect on her neighbor’s groundwater supply. (There is a narrow exception for malicious or willfully wasteful pumping). Most states have a reasonable use rule, a permitting rule, or a mixture of the two. Thus, a landowner in those jurisdictions may only pump out water to a reasonable extent.
There seems to be a logical relationship between an absolute capture rule and in place ownership rule. If a property owner is entitled to all the water that she can capture, then it makes sense to say that she has a potential interest in any uncaptured water. But if there are already restrictions on how much water she can pump, then she arguably has much less of an interest in the uncaptured groundwater. Thus, it seems reasonable to think that a jurisdiction that does not maintain an absolute capture will be less likely to implement an owned in place rule for groundwater.
On the other hand, the contrary argument can be made, i.e., the absolute capture and owned in place rules are fundamentally in tension. If property owner has no action against her neighbor for depleting the groundwater supply, how can it be said that the owner has an enforceable property right to the uncaptured water under her own land? For a further exposition of this argument, see Susana Elena Canseco, Landowners' Rights in Texas Groundwater: How and Why Texas Courts Should Determine Landowners Do Not Own Groundwater in Place, 60 Baylor L. Rev. 491, 517--19 (2008).
Regardless of the impact outside of Texas, the case, at the very least, will keep Texas courts and water authorities occupied for years for to come.
Interesting announcement for symposium on Wildfire Law. https://law.txwes.edu/Portals/0/docs/2012%20Wildfire%20Symposium%20Registration%20Form.pdf