Monday, April 29, 2013

Land Use Prof bloggers unite!

The five current Land Use Prof bloggers were in Minneapolis this weekend for the ALPS conference.  A photo was taken to commemmorate this rare event, reproduced for our faithful readership below:

Land Use Prof Bloggers

From left-to-right:  Ken Stahl, Jim Kelly, Matt Festa, Jessie Owley, and Stephen Miller.

A big kudos to Jessie Owley for live-blogging ALPS.  I, personally, was live-hacking my way through the event with the remnants of a cold, but had a great time meeting everyone and getting to hear a lot of great work on land use that will undoubtedly be featured on this blog in the months ahead.

Stephen R. Miller

April 29, 2013 | Permalink | Comments (0) | TrackBack (0)

Climate and Land Use Program Officer position - David and Lucile Packard Foundation

I saw a post today for a Climate and Land Use Program Officer position at the David and Lucile Packard Foundation that I thought might be of interest to some readers.  More details here

Stephen R. Miller

April 29, 2013 | Permalink | Comments (0) | TrackBack (0)

Call For Papers: Green Urban Infrastructure and Climate Adaptation

The Journal of Landscape and Urban Planning has announced a call for papers for a special issue. Abstracts are due May 10th with papers to follow at a later date.

Description is below with details on their website.

The ‘green city’ with high-quality and generous vegetation is an ideal with universal appeal that transcends temporal, spatial and cultural divides. Vegetated sites, including street trees, green alleys, greenways, green roofs, urban parks and informal green spaces enhance the liveability of cities by improving landscape and environmental quality, quality of life, and citizen health. Green infrastructural development has been driven by changes in local demand and urban form over time.

Global climate change poses new challenges to the planning and management of urban green infrastructure. Scientists anticipate warmer average temperatures and intensified storms and extreme weather conditions in the decades ahead. The urban heat island effect will increase the intensity and frequency of global warming impacts. Coupled with increasingly variable precipitation and gradual sea level rises, climate change is expected to bring significant impacts to urban populations, particularly medium-high  density coastal cities.

Green infrastructure constitutes a local response to the most pressing global challenge in our times. Urban greenery can potentially shield cities against adverse effects of climate change. By harnessing and blending natural processes with infrastructural development, green infrastructure can help moderate natural hazards, regulate water balance, and alleviate heat stress. Recent research has confirmed that green infrastructure should be systematically integrated into urban climate change adaptation responses. But our knowledge of green infrastructure has not been systematically assessed, and our conceptual frameworks for advancing green infrastructure as a climate change response are presently weak. Further consolidation of knowledge could achieve a higher degree of intellectual coherence, which will be conducive to building closer linkages to global discourses and practices, potentially reaching a wider institutional audience.

The aim of the Special Issue is to solicit and integrate new research findings in an effort to advance a coherent and conceptually rigorous framework of knowledge about green infrastructure. Papers are sought that critically examine the role of urban green infrastructure in response to climate change impacts. Papers must provide evidence of, and insights into, the prospects for using green infrastructure to enhance urban adaptability. The Special Issue pursues broad geographical representation, but priority is given to case studies of densely populated coastal cities. Empirical reports are encouraged, although high-quality perspective essays are also welcome. Contributions from multiple disciplines are invited. Papers are expected to address institutional concerns, apply scientific findings to formulate policy recommendations, and adopt an international perspective.

Jessie Owley

April 29, 2013 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Saturday, April 27, 2013

Live Blogging ALPS: Session V (The Evolution of Takings)

Day two of ALPS is starting off with a bang. It was pretty hard to choose among panels this morning, but I just can't resist a discussion of takings.

Steve Eagle of George Mason presented The Ptolemaic Evolution of Penn Central. I loved his likening of Penn Central and its progeny to Ptolemy's increasingly complicated theories to explain retrograde planets orbiting the Earth. He demonstrated that the Penn Central test is more complicated than most people describe it. He argues that it should be considered a 4-factor test. He plans two papers on this subject.

Alex Klass of Minnesota presented Takings and Transmission. She examined the eminent domain authority being exercised by private utilities, particularly for expansion of wind energy and the associated transmission lines. This talk is based on a paper forthcoming in North Carolina Law Review.

Sally Richardson of Tulane presented Adverse Possession, an Ex-Ante Perspective. Sally began by remarking that it is a right of passage for property professors to write about Adverse Possession because frankly it is just such a weird and fascinating doctrine where we let "wrongdoers" win. While most writings seek to justify Adverse Possession, she questions the possession requirement of adverse possession and suggests allowing people to register their intent to adversely possession a piece of property. This is an early work in progress that promises to be a fun read.

Chris Serkin of Brooklyn (soon to be Vanderbilt) presented Passive Takings: Government Inaction and the Duty to Protect Property. The title should be enough to peak your interest. In this early work in progress, he suggests that where the state has a duty to act it can't avoid takings litigation by failing to act. This is of course interesting in the context of climate change. Governments at all level have expressed hesitation about enacting climate change adaptation policies for fear of takings claims. Chris argues that in some cases, the governments' decision not to take action should be equally subject to scrutiny.

Fun Stuff!

Jessie Owley

April 27, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, April 26, 2013

Live Blogging ALPS: Session III (Constrains on and Structures for Land Use, Sale, and Development)

With so many sessions going on simultaneously, I don't always get to see my co-bloggers present their work. BUT I was lucky enough to hear about Matt Festa's current project as well as listen to a couple of talks on my well known obsession, conservation easements.

Festa presented a work in progress that he is calling "Property Rights and the Pulic Trust." I have two public trust doctrine projects sitting on my shelf so it is an area that I have been thinking about a lot. I love Matt's project, which examines the Severance v. Patterson case in Texas and legislative responses to it. He ponders the legality of the proposed legislative response that would expand the land considered to be covered by the public trust doctrine in Texas. Can't wait to see how this develops.

Douglas Harris from UBC presented "Title Registration, the Distribution of Risk, and the Abolition of Notice." I have been intrigued by issues of notice associated with servitudes and always have fun with this topic when teaching property law (yep, my class is a hoot). Douglas Harris explained to us how the rules requiring notice. Essentially, the movement is away from a doctrine of notice and toward rules simply requiring registration of title. Exceptions remain for fraud usually. He presents a compelling story about the Land Title Act in British Columbia leaving folks there in a confusing state about whether notice requirements co-exist with the land titling act. Generally, these ideas connext to issues relating to land recordation system. I often hear folks argue that we can do with some of our common law constraints on property because our land recording systems are so much better these days. Frankly, I get nervous when people say that because land recording is still rife with errors (particularly with recordation of conservation easements and other servitudes).

Gerald Korngold (whom I was delighted to finally meet in person) presented "Governmental Conservation Easements: Balancing Perpetuity with Democracy." Gerry is looking at governement conservation easements, by which he means conservation easements held by governement agencies. He asserts that these conservation easements have some benefits over those held by land trusts. I eagerly await his forthcoming article on this topic. I think alot of government conservation easmeents but I generally think of those as conservation easements that are created under governement programs. I haven't quite wrapped my head around the difference that emerge solely based on who is the holder. I can see a good case for asserting better transparency and accountability though!

Nancy McLaughlin of Utah presented "Perpetual Conservation Easements: Contemporary Issues and Challanges."Although she spoke last, she won the contest for most interesting powerpoint (a good strategy for a 4pm talk). Nancy focused on donated conservation easement and tax law. Although not a tax prof, we property and land use folks warmly welcome her presence and often highlight her research. She showed some shocking numbers in terms of the generous level of tax deductions landowners are getting and a huge number of challenges coming through the tax courts.

Jessie Owley


April 26, 2013 | Permalink | Comments (0) | TrackBack (0)

Live Blogging ALPS: Carol Rose on Property Futures

The Association of Law, Property, and Society has presented its annual award to Carol Rose. She is being recognized for both her scholarship and her mentorship -- two areas where she has unquestionably excelled. Like many property and land use scholars, my own work and teaching has been influenced by her writings.

At her lunchtime talk today, she explored the dignatory aspects of property. A few interesting thoughts:

  • Homeownership is all about taking risks and maybe we should be rethinking the value of home ownership. (See her new book: Saving the Neighborhood).
  • Ideas of dignity are connected to preserving a location of undisturbed freedom where others cannot intrude
  • Land titling programs are redstribution of wealth policies, but some of the goals of the land titling policies may not materialize becuase squatters' rights and connections to their homes are different than other type of homeownership (even if you give them title). Rose suggests there may be better programs for redistribution if that is the real goal.
  • Property rights are growing but facing pushback. Many examples in the IP realm with patenting life (animals, genes, etc.) and copyright of creative work. But some folks argue that these strong IP rights actually stifles creativity and hampers research.
  • Crowdsourcing efforts show examples of useful activities that are not driven by property interests. More akin to gifts than any other property form
  • Property can get in the way of good things.

 Jessie Owley

April 26, 2013 | Permalink | Comments (0) | TrackBack (0)

Hey Hey Hey The Gangs All Here!

I just looked around and realized that all of us land use bloggers are in Minnesota at ALPS Annual Meeting (Association of Law Property and Society). There are also several past and future guest bloggers gathered here. The progam looks great and things are just getting underway here with a fascinating panel on different approaches to doing property research. Expect to hear more from the gang over the next few days with some live blogging and tweeting (@JessicaOwley).

Jessie Owley


April 26, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, April 25, 2013

Environmental Justice and Healthy Homes

I am sad that I won't be back in Buffalo tomorrow for an amazing event the law school is organizing in conjunction with EPA and local environmental activists and community organizers. Stemming from a Healthy Home Practicum taught by Kim Connolly, the event will involve discussion of improving our local Western New York communities. More than a symposium, this forum will explore ideas with a goal of actually implementing plans to improve environmental and public health here in Buffalo.

More Info:

Local activists, academics, community organizers and federal experts will exchange ideas toward making Western New York’s homes and communities healthier at a daylong environmental justice forum on April 26. The gathering, titled “An Environmental Justice Forum for Buffalo Homes and Neighborhoods,” will run from 9 a.m. to 2 p.m. at the University at Buffalo’s Clinical and Translational Research Center, 875 Ellicott St.

Matthew Tejada, recently installed as director of the Environmental Protection Agency’s Office of Environmental Justice, will open the forum. William J. Hochul '94, US attorney for the Western District of New York, will discuss the importance of enforcement in addressing healthy homes matters. Other presenters include environmental justice experts from the EPA’s headquarters offices, the U.S. Department of Housing and Urban Development, and the Agency for Toxic Substances and Disease Registry.

The program’s sponsors include SUNY Buffalo Law School and its Healthy Homes Legal Practicum, the Community Foundation for Greater Buffalo’s Green and Healthy Homes Initiative, Neighborhood Legal Services, UB’s Civic Engagement and Public Policy Research Initiative and the UB Office of Sustainability.

Students participating in the Law School practicum provide legal support to the National Green and Healthy Homes Initiative, which has chosen Buffalo as one of 17 pilot cities for its work in promoting safer housing. Among the work produced by practicum students is 36-page publication called “A Neighborhood’s Continuing Evolution: An Environmental Justice Walking Tour of Buffalo, NY’s West Side.”

Professor Kim Diana Connolly, who directs the Law School’s clinical program and is one of three instructors of the practicum, says of the conference: “This forum will showcase the on-the-ground work being done by SUNY Buffalo Law School students and faculty that’s changing lives here in Buffalo while becoming a model for next-generation environmental justice elsewhere in the nation.”

The conference recognizes the presence, especially in the City of Buffalo, of an aging and deteriorating housing stock, environmentally unhealthy conditions in many neighborhoods, as well as high poverty and unemployment rates. Many families live in homes or communities that are unhealthy, unsafe and not energy-efficient.

Though local groups have been working to address these problems, their efforts are incompletely coordinated. The forum seeks to begin to develop “a truly sustainable strategy for healthy homes and communities that can become a model for other cities.”

Jessie Owley

April 25, 2013 | Permalink | Comments (1) | TrackBack (0)

Wednesday, April 24, 2013

Talking Energy in Minnesota

It's been a whirlwind of conferences for me this month. Two weeks ago I was at GW. Last week, we had a conference at Buffalo. Now, I am sitting in sunny but snowy Minnesota attending the 2013 Consortium Annual Conference, entitled "Legal & Policy Pathways for Energy Innovation."

My co-author Amy Morris (of Aspen Environmental) and I presented one of our current works-in-progress (yes we have three). This one we are currently calling Mitigating the Impacts of the Renewable Energy Gold Rush. In this paper, we take a close look at the mitigation being done in association with the large-scale solar projects in the California Desert. One of the challenges has been just to untangle all of the agencies and laws at play. We have been particularly concerned with the mitigation projects and methods. Projects are approved (and indeed construction often begins) before mitigation projects are finalized or land identified. And of course, the use of exacted conservation easements is prevalent throughout... something that always makes me nervous.

Most of the mitigation projects are about endangered species protection and our paper focuses on that aspect. Thus, we were  not too surprised when we were placed on a panel about endangred species and renewable energy (with Kalyani Robbins and Jeff Thaler). It was one of the more contentious academic (they've got nothing on the land trust folks) panel presentations I have been a part of. It was a lively discussion about whether it makes sense to protect endangered species if the protection will in any way hamper development of renewable energy projects. Most folks agreed that climate change is likely to have bigger impacts on endangred species and ecosystem health than renewable energy development is. This raises big questions about tradeoffs with renewable energy projects and even introduced proposals to amend the Endangered Species Act!

And things are only getting started. Conference organizer extraordinare Hari Osofsky tells us that the recordings and videos of the conference will be available. You should contact her to learn more.

Conference Summary

The Legal & Policy Pathways for Energy Innovation conference will bring together leading scholars, practitioners, policymakers, and business people to address current energy law and policy challenges, particularly at the intersection of environmental law and policy. The panels will focus on four primary topics: (1) clean energy infrastructure; (2) environmental and energy governance; (3) climate, energy, and environmental justice; (4) sustainable regions and communities.

- Jessie Owley


April 24, 2013 in California, Clean Energy, Climate, Conferences, Conservation Easements | Permalink | Comments (0) | TrackBack (0)

Sunday, April 21, 2013

Idaho Law fracking symposium presentations now available on-line for free

The video from the day-long Idaho Law Review symposium on hydraulic fracturing, which was held March 29, is now available for free online.  Papers and Powerpoints for the symposium can also be downloaded at the same site.  We had a great group of speakers and, by sharing these sessions for free, we are hoping to make these informative talks as widely available as possible.  Check it out!

Stephen R. Miller

April 21, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, April 19, 2013

Stern on Residential Social Capital's "Dark Side"

Stephanie Stern (Chicago-Kent) has posted The Dark Side of Town: The Social Capital Revolution in Residential Property.  Here's the abstract:

Social capital has pervaded property law, with scholars and policymakers advocating laws and property arrangements to promote social capital and relying on social capital to devolve property governance from legal institutions to resident groups. This Article challenges the prevailing view of social capital’s salutary effects with a more skeptical account that examines the dark side of residential social capital — its capacity to effectuate local factions and promote restraints and inegalitarianism that close off property. I introduce a set of claims about social capital’s dark side in residential property and explore these points through the examples of local racial purging, land cartels, and residential self-governance. First, contrary to the assumption of a social capital deficit, residential racial segregation and land cartelization, perhaps the deepest imprints on the American property landscape today, suggest an abundance of local social capital and possible unintended consequences of interventions to build social capital. Second, “governing by social capital,” or relying on social capital for property self-governance, may empower factions, breed conflict, and increase the demand for residential homogeneity as a proxy for cooperation. In light of the mixed evidence for social capital’s benefits and its sizable dark side, the more pressing and productive role for property law is not to promote social capital, but to address its negative spillovers and illiberal effects.

Jim K.

April 19, 2013 in Housing, Property, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

The Big Thaw: Policy, Governance and Climate Change in the Circumpolar North

We are just starting day two of a conference here at Buffalo on climate change in the artic. We have participants from many fields (coming in person and electronically). This conference is also our first try at broadcasting our conferences via webinar. This enables folks to participate from all over the globe (not just by passively listening but also offering real-time questions and comments). It also seems a great way to do CLE.

I am including the information on the  conference below in case any of you have some free time today and want to join the webinar. Also, the papers steming from the conference will be available in a SUNY Press book on the issue coming out next year.

Conference Summary:

The Big Thaw: Policy, Governance and Climate Change in the Circumpolar North will bring together experts in science, law, sociology, and other fields to explore the pressing issue of climate change in the arctic. Conference participants will deliberate on international, national, and local perceptions of environmental, cultural, social and economic change in the arctic, interweaving the contexts of policy, legal, local and scientific models. Through its core focus on time, space, change and movement, this conference seeks common measures to the time scales of lived human experience in the arctic and sub-arctic region in a warming world.

The circumpolar North is a critical observatory for changing relations between human societies and the environment, and the policies that should accompany such change. The arctic and the sub-arctic are at the center of global debates on post- Cold War partnerships and issues of
post-colonial governance, strategy and regional sovereignty. For political and other reasons, the circumpolar North has only recently reemerged as a "region," revealing past connections and current common problems, and pointing to future challenges. Experts will gather and share thoughts on how we arrived at the current situation(s), where exactly things stand, and where to go from here.


Jessie Owley

April 19, 2013 in Climate, Conferences, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, April 18, 2013

Church Fire in Athens

So I've been taking something of a break from blogging during my quasi-sabbatical, but I got a powerful lesson about the power of place this week, something that seemed worth sharing.  

Monday night Oconee Street United Methodist Church in Athens experienced a terrible fire.  This is the church my husband and I attended in Athens, and it's been powerful to see the effect of the fire on the community.  At first there was shock and grief but very quickly the community began to rally. The church is the home of the local soup kitchen, and only hours after the blaze they were serving breakfast in front of the still smoldering building.  A campaign has begun to restore the historic structure (originally built in 1903).  This church is an Athens institution, popularly known as the "church on the hill."

A few years ago I blogged about the rebuilding of another Athens insitution gutted by fire, the Georgia Theater.  The community banded together to help finance the two year rebuilding process, and the theater re-opened better and more beautiful than ever in 2011.  Here's hoping the same thing can happen with this wonderful little community church!

Jamie Baker Roskie


April 18, 2013 in Georgia, Historic Preservation, History | Permalink | Comments (0) | TrackBack (0)

Rose on the History of Racially Restrictive Covenants

Carol Rose (Yale & Arizona) has posted Property Law and the Rise, Life, and Demise of Racially Restrictive Covenants, which is available in the 2013 edition of Powell on Real Property.  Here's the abstract:

This article was given as the 6th Annual Wolf Family Lecture on the American Law of Real Property, University of Florida Levin College of Law (2013). It draws on property law discussions in Richard R.W. Brooks and Carol M. Rose, Saving the Neighborhood: Racially Restrictive Covenants, Law, and Social Norms (Harvard Univ. Press 2013). The article outlines the ways in which constitutional law and property law engaged in a dialog about white-only racial covenants from their early twentieth-century origins to the middle of the twentieth century and beyond. After a shaky beginning, both constitutional law and property law became relatively permissive about racial covenants by the 1920s. But proponents of racial covenants had to work around property law doctrines — including seemingly arcane doctrines like the Rule Against Perpetuities, disfavor to restraints on alienation, "horizontal privity," and "touch and concern." Moreover, property law weaknesses gave leverage to civil rights opponents of covenants, long before Shelley v. Kraemer (1948), the major constitutional case that made these covenants unenforceable in courts. Even after Shelley's constitutional decision, property law continued to be a contested area for racial covenants, with echoes even today.

Jim K.

April 18, 2013 in Constitutional Law, Property, Race, Scholarship, Servitudes, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 17, 2013

Fennell on Crowdsourcing Land Use

Lee Fennell (Chicago) has posted Crowdsourcing Land Use, 78 Brook. L. Rev. ___ (forthcoming 2013).  In it she looks ahead to the possibilities for emerging information technology to provide platforms for sharing data about land use impacts and preferences as well as landowner intentions.  The last of these involves a proposal for the creation of publicly facilitated options markets in land use rights, an idea she previously outlined in her 2011 piece Property and Precaution (Journal of Tort Law, 2011).  Here's the abstract for the Crowdsourcing article:

Land use conflicts arise from information shortfalls, and avoiding them requires obtaining and using information. Yet traditional forms of land use control operate in relative ignorance about landowner intentions, about preferences for patterns of land use that do not presently exist, and, more fundamentally, about land use impacts as they are experienced on the ground. Because information is expensive to gather and use, this ignorance may be rational. New technological and theoretical advances, however, offer powerful ways to harness and deploy information that lies dispersed in the hands of the public. In this symposium essay, I assess the prospects for an increased role for crowdsourcing in managing land use, as well as the limits on this approach. Governments must do more than elicit, aggregate, coordinate, and channel the preferences, intentions, and experiences of current and potential land users; they must also set normative side constraints, manage agendas, and construct appropriately scaled platforms for compiling and using information.

Jim K.

April 17, 2013 in Community Design, Comprehensive Plans, Nuisance, Planning, Property, Property Rights, Property Theory, Scholarship, Servitudes, Zoning | Permalink | Comments (0) | TrackBack (0)

Friday, April 12, 2013

AALS Workshop on Poverty, Immigration and Poverty/Perry on Gentrification and Transracial Adoption

I got my registration brochure this past week for the AALS Midyear Meeting to be held in San Diego in early June.  Along with two criminal justice programs, it features a Worskhop on Poverty, Immigration and Property that brings together a fascinating mix of presentations from scholars frequently referenced on your favorite land use law blog. Unfortunately, I won't be able to attend; but, I look forward to seeing the papers. 

One panel that drew my eye features work from David Reiss (Brooklyn), Marc Poirier (Seton Hall)  and Twila Perry (Rutgers-Newark).  We have previously blogged about related work by David and Marc.  Prof. Perry has written extensively about transracial adoption, but I was not familiar with her work prior to receiving the mailing.  She will be presenting in June on Gentrification: Race, Class Law and the Integrationist Ideal.  I came across an earlier work she published comparing gentrification and transracial adoption entitled Transracial Adoption and Gentrification: An Essay on Race, Power, Family, and Community, 26 B.C. Third World L.J. 25 (2006).  Here's the abstract:

In this article, Professor Perry finds common ground between the two seemingly disparate contexts of transracial adoption and gentrification. Professor Perry argues that both transracial adoption and gentrification represent contexts in which, in the future, there may be increasing competition for limited resources. In the former case, the limited resource is the healthy Black newborn. In the latter, it is desirable, affordable housing in the centers of our cities. After explaining how a competition between Blacks and whites over Black newborns could arise, Professor Perry argues that in any such competition, Blacks will increasingly find themselves at a disadvantage stemming from the consequences of institutionalized racism. The article argues that there is a public discourse in both contexts that blames Blacks for the problems facing Black families and Black communities and valorizes whites who transracially adopt or move into inner-city neighborhoods undergoing gentrification. Professor Perry urges increased government involvement to preserve Black families and to protect Blacks against the displacement that often results from gentrification.

Jim K.

April 12, 2013 in Property Theory, Race, Scholarship, Urbanism | Permalink | Comments (0) | TrackBack (0)

Thursday, April 11, 2013

Talking Energy at GW

Greetings from George Washington Law School where the 2013 J.B. and Maurice C. Shapiro Conference is wrapping up. Entitled Laying the Foundation for a Sustainable Energy Future: Legal and Policy Challenges, there has been an impressive array of panelists from industry, governements, NGOs, and academia.

My co-athour Amy Morris (of Aspen Environmental Group) and I presented some of our work on the land use tradeoffs involved in renewable energy projects. We have been looking at these issues through the lens of solar projects in California, but the issues come up in many contexts. To give you some broad strokes of the project: In California, we see development of main types of projects--utility scale and distrbuted generation. The large utility-scale solar facilities in the California desert have been under heavy scrutiny and criticized for their potential impacts on environmental and cultural values. In an effort to avoid pristine desert ecosystems, agencies and environmental groups have been championed the use of distrubed lands. Such lands are not completely controversy-free either. As a threshold question, we have to figure out what lands should qualify as "distrurbed." In some cases, it may be that we are too quick to label something as disturbed. Generally though the big categories are brownfields, former landfills and mines, hardscapes (parking lots and rooftops), and marginal agricultural lands. I won't get into here, but trust me each of those categories has a host of issues surrounding its use.

I've been feeling a little out of my league as the land use lawyer in the midst of the energy experts but have learned a lot and have been impressed with GW's organization of the conference. I also really enjoy attending conferences in Washington DC where the audience is always filled with a great mix of people from agencies and nonprofits.

- Jessie Owley

April 11, 2013 in Agriculture, California, Clean Energy, Climate, Comparative Land Use, Conferences, Planning, Scholarship, Sustainability, Water | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 10, 2013

Davidson on New Formalism in the Aftermath of the Housing Crisis

Nestor Davidson (Fordham) has posted New Formalism in the Aftermath of the Housing Crisis, Boston University Law Review, Vol. 93, No. 389, 2013.  The abstract:

The housing crisis has left in its wake an ongoing legal crisis. After housing markets began to collapse across the country in 2007, foreclosures and housing-related bankruptcies surged significantly and have barely begun to abate more than six years later. As the legal system has confronted this aftermath, courts have increasingly accepted claims by borrowers that lenders and other entities involved in securitizing mortgages failed to follow requirements related to perfecting and transferring their security interests. These cases – which focus variously on issues such as standing, real party in interest, chains of assignment, the negotiability of mortgage notes, and the like – signal renewed formality in nearly every aspect of the resolution of mortgage distress. This new formalism in the aftermath of the housing crisis represents something of an ironic turn in the jurisprudence. From the earliest history of the mortgage, lenders have had a tendency to invoke the clear, sharp edges of law, while borrowers in distress have often resorted to equity for forbearance. The post-crisis caselaw thus upends the historical valence of lender-side formalism and borrower-side flexibility. 

Building on this insight, this Article makes a normative and a theoretical claim. Normatively, while scholars have largely embraced the new formalism for the accountability it augurs, this consensus ignores the trend’s potential negative consequences. Lenders have greater resources than consumers to manage the technical aspects of mortgage distress litigation over the long run, and focusing on formal requirements may distract from responding to deeper substantive and structural questions that still remain largely unaddressed more than a half decade into the crisis. Equally telling, from a theoretical perspective, the new formalism sheds light on the perennial tension between law’s supposed certainty and equity’s flexibility. The emerging jurisprudence underscores the contingency of property and thus reinforces – again, ironically – pluralist conceptions of property even in the crucible of hard-edged formalism.

Matt Festa

April 10, 2013 in Affordable Housing, Housing, Mortgages, Politics, Property, Real Estate Transactions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Kansas Outlaws Sustainability

I have been very excited about a project that co-blogger Stephen Miller and I have been a part of that looks at sustainability in the context of climate change. In fact, our recent compilation of essays on the subject have just been published by ELR (look for the book on this topic next summer). So I have been thinking a lot about what sustainability means and what we can do to achieve it. Sometimes, I think perhaps sustainability isn't the answer as the phrase as lost meaning when folks seem to use it to just label something they consider to be "good for the environment." One thing I hadn't considered was just passing a law mandating sustainability. Politicians in Kansas, however, seem to have been contemplating the power of law to dictate sustainability rules. House Bill No. 2366 currently before the Kansas state legislature would make it illegal to use “public funds to promote or implement sustainable development." Frankly with the trouble surrounding just trying to define what should be considered "sustainable development," I am not sure how meaningful such a law would be -- put gotta appluad tease Kansas for trying. As a professor at a public school, I find the provision restricting the teaching of sustainability to be especially worrisome [no public funding can be used for "materials prepared or presented as part of a class, course, curriculum or instructional material"].

Next thing you know, states will be outlawing climate change.

- Jessie Owley

h/t Katy Kuh

April 10, 2013 in Sustainability | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 9, 2013

Glaeser interview on Cities and Climate Change

As part of a radio show on the recently declared Anthropocene (we're already 8000 years into it!), Big Picture Science featured an interview with Ed Glaeser (Harvard-Economics) about how city living moderates rather than aggravates global warming. The Glaeser interview begins 22 minutes into the show.  Among other things, I learned that the entire population of the Earth could be housed on 1/10th-acre lots within the land area that makes up Texas. (I call the intersection down the block from Festa's house!) 

In arguing for urbanization as a vital greening strategy (or at least an alternative to hunter-gatherer existence), Glaeser draws upon his book, Triumph of the CIty.  Matt blogged about David Reiss's review of that book here.

Jim K.

April 9, 2013 in Climate, Environmentalism, Urbanism | Permalink | Comments (1) | TrackBack (0)