Land Use Prof Blog

Stein on China's Housing Market: Heading Toward a US-Style Crash?

Gregory M. Stein (Tennessee), who has written a bunch on real estate and land use in contemporary China, has posted Is China's Housing Market Heading Toward a US-Style Crash?, Arizona Journal of International and Comparative Law, Vol. 29, No. 1, 2011 .  The abstract:

This article aims to determine whether China is heading toward a U.S.-style market crash in its housing market. Rather than attempting to maintain any suspense, I will disclose here that my conclusion is, “Who knows?” China and the United States have dramatically different histories, cultures, governments, economies, and legal systems. Anyone who claims to have a definitive answer to this question is overly confident.

My more modest goals in this article are to examine the available evidence and see which way it seems to point. The article begins by listing and describing several different ways in which the American housing market failed. It then evaluates the consequences of these failures for the U.S. housing market. Next, the article demonstrates some of the key respects in which the Chinese market differs from the market in the United States. This central portion of the article emphasizes just how difficult it is to make predictions about what might happen in one nation’s housing market based on the experiences of another nation that differs in so many significant ways. Finally, the article provides a description of some of the worrisome similarities between the Chinese and American housing markets. To the extent the previous analysis may have comforted the reader into believing that the Chinese market is unlikely to experience a downturn anytime soon, this last discussion will create some apprehension by highlighting some of the ways in which China might, in fact, be heading down the same path as the United States.

Matt Festa

Davis on Adverse Possession as a Redistributive Tool

Tessa Davis (Tulane) has posted Keeping the Welcome Mat Rolled-Up: Social Justice Theorists’ Failure to Embrace Adverse Possession as a Redistributive Tool, Journal of Transnational Law & Policy, Vol. 20, p. 73, 2010.  The abstract:

J.A. Pye (Oxford) Ltd.and another v. Graham and another (Pye), a recent U.K. case, raised the question of whether adverse possession may violate a human right to own property. The case implicated the then recent bringing adverse possession into the human rights realm. Yet, a review of the case as it moved through the U.K. courts and the European Court of Human Rights reveals, however, that courts have not embraced a consideration of adverse possession as playing a role in substantive human rights or social justice concerns. This is due, in part, to the dearth of human rights and social justice scholarship on the doctrine. Though human rights and social justice theorists have failed to fully develop the doctrine, their theories lay the groundwork for utilizing adverse possession as a tool to fashion new property systems. Utilizing adverse possession as a social justice tool can help foster systems with widespread property distribution while actively recognizing and supporting human rights of both owners and those seeking ownership.

Just today I witnessed a spirited discussion of adverse possession law, so its good to see some writing on the theory.

Matt Festa

Foreign Policy Special Issue on Cities--Focus on China

Foreign Policy recently has published its Special Report "Cities Issue."  While the issue is themed on urban affairs generally, its articles coalesce around the amazing urban development taking place in China.  From the website intro:

Our special issue dedicated to the cities of the future has its eye squarely toward China, because the cities of the future are increasingly going to be speaking Mandarin -- even more than you realize. It's no longer news that China has embarked on the largest mass urbanization in history, a monumental migration from country to city that will leave China with nearly a billion urbanites by 2025 and an astonishing 221 cities with populations over 1 million. But this isn't just about size: It's about global heft. And that's where the scale of China's transformation into a world leader is truly astonishing. In an exclusive index for FP, the McKinsey Global Institute has run the numbers to produce what we're calling The 75 Most Dynamic Cities of 2025 -- an extraordinary 29 of which are in China. Some are already global powers, from top-ranked Shanghai to manufacturing dynamo Shenzhen; others, from Fuzhou to Xiamen, were little more than provincial backwaters in the 20th century but look to be household names in the 21st, powering the global economy not just through their sheer size but also through their urban innovation and pulsing drive. Europe, meanwhile, will manage only three cities on the list by 2025; the United States finishes second to China -- a very distant second -- with 13. Still think that debate about Western decline is overblown?

There are a whole bunch of interesting articles at the website.  Just one that I'll highlight is New Urbanism pioneer Peter Calthorpe's Weapons of Mass Urban Destruction: China's Cities are Making the Same Mistake America Made on the Path to Superpower Status.  Again, there's a whole lot of interesting analysis at the FP Cities Issue website.

Matt Festa

Penalver on Progressive Lessons from DeSoto

Eduardo M. Penalver (Cornell) has posted The Costs of Regulation or the Consequences of Poverty? Progressive Lessons from De Soto, which is a chapter from the book Hernando de Soto and Property in a Market Economy, (D. Benjamin Barros ed.), Ashgate, 2010.  Penalver's abstract:

Commentators have often characterized Hernando de Soto's advocacy of formalization of title for landless squatters as right-wing. And de Soto seems to understand himself as an advocate of individual property rights and free markets. But his analysis of informality and redistribution has a subtext with potentially progressive implications. Although de Soto sometimes reflexively attributes informality to overregulation, informality can always also be characterized as the consequence of being too poor to afford regulated goods. Indeed, for any particular regulation that puts the regulated good out of reach of the poor, we can either attribute this consequence to the cost of the regulation or to the consequences of a distribution of wealth that makes the regulated good unaffordable to those at the bottom. Thus, if the regulation is a good one, its effect on price, and therefore on informality, may argue in favor of keeping the regulation but redistributing purchasing power to blunt its pernicious impact on informality. What we need is a way of evaluating regulations that goes beyond merely observing their impact on the cost of goods and, indirectly, on the prevalence of informality. Specifically, we need to be able to evaluate four different possibilities: (1) regulation with redistribution to offset the impact of the regulation on the poor; (2) regulation without redistribution with its attendant increase in informality; (3) redistribution without regulation; and (4) no redistribution and no regulation. Choosing among these options is the domain of applied political theory. The choice is a far more complicated and demanding task than merely observing that regulation without redistribution increases informality.

All of the contributions to the 2010 Barros-edited volume on DeSoto are extremely interesting and thought-provoking.  Penalver's essay, just now posted on SSRN, pushes us to consider the property theory beyond the traditional political characterizations of DeSoto's ideas. 

Matt Festa

Frischmann on Managing Congestion

Brett M. Frischmann (Cardozo) has posted Managing Congestion, which is a chapter from his book Infrastructure: The Social Value of Shared Resources, Oxford University Press, 2012.  The abstract:

This chapter considers partially (non)rival infrastructure and congestion. Specifically, it explains and analyzes congestions problems and solutions. It begins with the basic economic model of congestion, which assumes homogenous uses, and discusses various approaches to managing congestion. It turns to more complex congestion problems, involving heterogeneous uses and cross-crowding, and discusses management options. The chapter evaluates congestion management strategies for infrastructures as well as the relationship between commons management and congestion management.

The SSRN document also includes the book's Table of Contents, so you can view the larger outline for this valuable book. 

Matt Festa

The London Olympics & Land Use--The Atlantic Cities' Coverage

As Jessie noted in her post on the Olympic Villages, there are many land use issues involved when a city hosts the Olympic Games.  For a fantastic overview of these issues, with numerous in-depth stories, there's no better place to start than The Atlantic Cities' "Special Report" Olympics 2012: London Gets Ready for the Summer Games.  Feargus O'Sullivan has been reporting from London for months, and in the past couple of weeks many of their other writers have contributed excellent stories on a slew of land-use-related Olympic issues.  Here are just a few examples of the wide range of topics they've addressed:

Whether hosting the Olypmic "boondoggle" is good or bad for your city; homelessness and tourism; security issues; public attitudes--politicians telling "whingers" to "put a sock in it"; transportation concerns; architecture; planning for post-Games facilities use; affordable housing; the always-controversial of building new stadiums (stadia?); and many, many other important issues that come up when a big city offers to play host to the world. 

The British media, of course, have lots of excellent coverage.  But for a more specific focus on land use, local government, and urban planning issues, I highly recommend starting with The Atlantic Cities' Olympics 2012 page.  They're posting several new stories each day. 

In the meantime, I hope you all enjoy watching that important land use event known as the Olympic Games!

Matt Festa

Butsic et al on Landscape Management for Species Conservation

These authors create a model to figure out which land uses optimize species protection while maximizing economic output. 

 Analytical Solutions to Trade-Offs between Size of Protected Areas and Land-Use Intensity from Conservation Biology by Van Butsic, Volker C. Radeloff, Tobias Kuemmerle, and Anna M. Pidgeon

Land-use change is affecting Earth's capacity to support both wild species and a growing human population. The question is how best to manage landscapes for both species conservation and economic output. If large areas are protected to conserve species richness, then the unprotected areas must be used more intensively. Likewise, low-intensity use leaves less area protected but may allow wild species to persist in areas that are used for market purposes. This dilemma is present in policy debates on agriculture, housing, and forestry. Our goal was to develop a theoretical model to evaluate which land-use strategy maximizes economic output while maintaining species richness. Our theoretical model extends previous analytical models by allowing land-use intensity on unprotected land to influence species richness in protected areas. We devised general models in which species richness (with modified species-area curves) and economic output (a Cobb–Douglas production function) are a function of land-use intensity and the proportion of land protected. Economic output increased as land-use intensity and extent increased, and species richness responded to increased intensity either negatively or following the intermediate disturbance hypothesis. We solved the model analytically to identify the combination of land-use intensity and protected area that provided the maximum amount of economic output, given a target level of species richness. The land-use strategy that maximized economic output while maintaining species richness depended jointly on the response of species richness to land-use intensity and protection and the effect of land use outside protected areas on species richness within protected areas. Regardless of the land-use strategy, species richness tended to respond to changing land-use intensity and extent in a highly nonlinear fashion.

Jessie Owley

Lewyn on Sprawl in Canada and the United States

Michael Lewyn (Touro) has taken his analysis of sprawl north of the border in Sprawl in Canada and the United States, 44 Urban Lawyer 85 (2012).  The abstract:

The purpose of this article is to show that, in Canada as in the United States, government regulation promotes sprawl through anti-density zoning, minimum parking requirements, and overly wide streets. However, Canadian cities are less "sprawling" than American cities- perhaps because at least some of these regulations are less onerous than in the United States.

It's an interesting article that makes an original point.  We tend to assume that places like Canada must be more regulated than the US, but it isn't necessarily true when it comes to land use.  Lewyn suggests a potential link to comparative levels of sprawl. 

Matt Festa

Letters from the field: Buying a share of utopia in Copenhagen

I’ve just returned from several weeks of travel, and thought I’d post on several items I saw along the way.  The first of these was a utopian community in Copenhagen, Denmark, called Christiana.  Christiana is on an island, Christianhavn, adjacent to the central city of Copenhagen that had been used for military purposes for centuries.  When the Danish military closed a base on the island in the Sixties, some freedom-loving hippies and other radicals set up shop  by squatting on the land, declared their independence from the Danish state (adverse possession is for sissies, apparently), refused to pay taxes, and otherwise have engaged in community- and ganja-based decision-making ever since.  About 1,000 residents now call Christiana home.

There are several aspects of Christiana that I think land use folks will find interesting.  First, after four decades of tolerating open rebellion in its midsts, the Danish government finally decided that it needed to do something about Christiana.  You might be anticipating a “throw the bums out” approach; but remember, this is Denmark, not Rudy Giuliani’s New York City.  Instead of mounting riot troops at Christiana’s borders, the Danish government sent in their lawyers with an ultimatum:  Christiana’s residents could stay, but they would have to buy the land from the Danish government.  But the Danish government did not demand the market price for the property; instead, they offered the property to Christiana’s residents for a song.  In a sense, all the Danish government is seeking to do is to legitimate the ownership of the land; in other words, if Christian’s residents “own” the land, there is some acknowledgment of the government’s control and sovereignty over that land.  But, of course, the Christiana residents disdain this idea of ownership even though they need to raise capital to purchase the land.  

The result has been one of the most peculiar of solutions:  a stock offering of nominal ownership that investors can purchase. 

As the New York Times described it:

[Christiana's residents] decided to start selling shares in Christiania. Pieces of paper, hand-printed on site, the shares can be had for amounts from $3.50 to $1,750. Shareholders are entitled to a symbolic sense of ownership in Christiania and the promise of an invitation to a planned annual shareholder party. “Christiania belongs to everyone,” Mr. Manghezi said. “We’re trying to put ownership in an abstract form.”

Since the shares were first offered in the fall, about $1.25 million worth have been sold in Denmark and abroad. The money raised will go toward the purchase of the land from the government.

I found this struggle over the idea of ownership to be fascinating.  After all, the amount the Danish government is seeking from Christiana is far below the market price of the land in the now trendy area of Christianhavn.  However, what the government is doing is forcing the utopian community out of its stance of declaring “independence” from the Danish state, while Christiana’s residents attempt to use arcane legal structures to avoid sullying their hands with the prospect of “ownership.”  Am I the only one who thinks of Johnson v. M'Intosh on these facts?

The second interesting issue in Christiana was a poster located on the community’s main meeting room, which establishes the community’s “common law.”  A picture is to the right.  Now, at first blush, this will not look much like common law, but rather a visual statutory scheme, or maybe even something like the Ten Commandments if written for a biker gang.  But it was the kind of rules that interested me:  they speak, I think, to the kinds of problems that must have evolved in Christiana over time:  hard drugs, biker’s colors, firearms, and so on.  Each of these rules, you can imagine, resulted from a particular incident, and so a “common law” evolved in this place where all decisions are made collectively.  Such a common law speaks to the potentially rough nature of standing as a state independent from the protection of the sovereign.  It made me think of the devolution of all of the United States’ utopian communities, from New Harmony on down.  Is such a slide into anarchy, or the fight against anarchy, inevitable in such utopian movements?  I don’t know, but Christiana remains, and it seems to continue to thrive despite its troubles.  It eeks out a living on the sale of rasta trinkets and “green light district” paraphernalia.  And even in this space where there is supposedly no sovereign, there is still some law, borne of hard experience, common to all.  Its future, cast somewhere between lawfully-abiding property owner and anti-property ownership crusaders, between freedom and the "common law's" protections, will be interesting to watch in the coming decades.

Stephen R. Miller

Land Use Travels: Kyrgyzstan

Greetings from the Kyrgyz Republic, also known as Kyrgyzstan!

Kyrgyzstan is a Central Asian republic halfway around the globe.  It's a fascinating place, and my third trip here in the past 12 months.  I'm not here doing land use; actually I'm on a federal government mission relating to international law.  But you know me: I'm always on the lookout for interesting land use issues.  So I'm planning to keep my eyes open and hopefully share some thoughts and observations about land use in Kyrgyzstan.  I'll start today with an intro to the country and some preliminary thoughts.

Kyrgyzstan is a small Central Asian republic tucked in between China, Tajikistan, Uzbekistan, and Kazakhstan (map thanks to Nations Online Project).  It has a long history at the crossroads of empire.  From its position on the ancient Silk Road to the 19th Century "Great Game" to the Soviet Union to today, this little-known country has long had a strategic importance globally.

Kyrgyzstan has been independent since the USSR dissolved in 1991.  It has a population of about 5.5 million.  The majority is ethnic Kyrgyz, with a substantial Uzbek minority, as well as Russian and other groups.  The population is majority Muslim but the government is secular.  It has a capital city, Bishkek--where I've spent most of my time here--and a few other smaller cities, notably Osh in the southern region.  Its geography is 90% mountainous, located in the Tien Shan Mountains and the Fergana Valley.  This makes it a stunningly beautiful place, but it is poor in natural resources and its economy relies heavily on the agricultural areas.  It is a poor country but has maintained a relatively democratic society, at least compared to other countries in the region; however it has had two revolutions and ethnic riots in the past several years.  For more information on Kyrgyzstan see the State Department's Background Notes and the CIA World Factbook.  

There are many potential land use issues in Kyrgyzstan.  It has a long geostrategic history based on its location, terrain, and people.  It has a capital city that was completely planned and built from scratch by the Soviets.  It has a post-Soviet economy that is reflected in the maintenance of the city.  It has some serious local governance issues.  There is an urban-rural divide that impacts national politics.  And there are of course land issues of environment, natural resources, and climate. 

If you aren't familiar with this part of the world, the name may sound like a fictional place, but Kyrgyzstan is quite real and very interesting.  If I have more land-use related observations from Bishkek, I'll try to share them here.  In the meantime, Саламатсызбы!

Matt Festa

Scottish "Frankenstein" Mummies and Land Rights

I probably should save this one for Halloween, but there's breaking news out of Scotland, where archaeologists have discovered a pair of 3,000-year-old mummified bodies . . . but it appears that there are more than two persons involved.  From Yahoo News, 3,000-year-old ‘Frankenstein’ mummies discovered in Scotland:

Researchers say that a pair of 3,000-year-old mummified corpses that were recently discovered in Scotland are actually composed of body parts originating from six different people. . . .

National Geographic reports that isotopic dating and DNA experiments revealed the unusual pairing of body parts. The tests also revealed that the body parts were assembled and buried together more than 600 years after death, meaning that the assemblage was almost certainly deliberate.

Why would they spend centuries assembling these composite cadavers?  It's not clear, but one of the researchers has a theory in land use law:

Meanwhile, fellow researcher and University of Sheffield professor Mike Parker Pearson tells LiveScience the parts could have been more specifically put together to show the connected lineage between families other time.

"Rights to land would have depended on ancestral claims, so perhaps having the ancestors around 'in the flesh' was their prehistoric equivalent of a legal document," Parker Pearson said.

"Merging different body parts of ancestors into a single person could represent the merging of different families and their lines of descent," Parker Pearson said. "Perhaps this was a prelude to building the row of houses in which numerous different families are likely to have lived."

A little morbid, a little amusing, and also a reminder that issues of land ownership aren't just historical, they might be prehistorical as well. Thanks to William Bozeman for the pointer.

Matt Festa

Study Space Event in Istanbul on Disaster Preparedness (via Georgia State)

Prof. Julian Juergensmeyer (Georgia State) writes to inform us about what looks like a truly fascinating opportunity:

The Center for the Comparative Study of Metropolitan Growth is pleased to announce a Study Space Program in Istanbul, Turkey March 31- April 6, 2013.

A Study Space is a week-long intensive workshop, in which academic scholars and professionals come together to study and develop solutions to the challenges being faced by cities throughout the world. This program will focus on disaster preparedness from an interdisciplinary perspective of land use policies, building restrictions, and the handling of environmental refugees. It will be a collaboration with the Payson Center for International Development at Tulane University's Law School in New Orleans and the law school at Bahcesehir University in Istanbul, Turkey.

The workshop will use the issue of earthquakes in Turkey as a focused topic and also as a springboard toward a larger discussion of disaster preparedness and urban land use in the modern world.  Contact Prof. Juergensmeyer for any questions.  With its interdisciplinary and transnational basis, this is surely going to be a really rewarding event. 

Matt Festa

Gillespie on Judicialization of Urban Land Disputes in Vietnam

John Gillespie (Monash University) has posted Exploring the Limits of the Judicialization of Urban Land Disputes in Vietnam, Law and Society Review, Volume 45, No. 2, pp. 241-275, 2011.  The abstract:

Economic and legal reforms have triggered waves of conflict over property rights and access to urban land in Vietnam. In this article I develop four epistemic case studies to explore the main precepts and practices that courts must negotiate to extend their authority over land disputes. Courts face a dilemma: Do they apply state laws that disregard community regulatory practices and risk losing social relevance, or apply community notions of situational justice that undermine rule formalism? I conclude that reforms designed to increase rule formalism in the courts may have the unintended consequence of reducing the capacity for judges to find lasting solutions to land disputes.

Matt Festa

Kelly on Calavita and Mallach on Global Inclusionary Housing

Our own James J. Kelly (Notre Dame) has posted a review essay on Calavita & Mallach eds., Inclusionary Housing in International Perspective: Affordable Housing, Social Inclusion, and Land Value Recapture.  Jim's review essay, Inclusionary Housing on a Global Basis, appears in his own Journal of Affordable Housing and Community Development Law, Vol. 20, p. 261, Spring/Summer 2011. The abstract:

This is a book review of Inclusionary Housing in International Perspective: Affordable Housing, Social Inclusion, and Land Value Recapture (2010, Nico Calavita and Alan Mallach, eds.). The book offers a comparative look at land-use based approaches to the creation of affordable housing in a broad range of developed countries. A little less than a sixth of the book is dedicated to the U.S., with special attention given to the development on inclusionary programs in California and New Jersey. The editors then devote a chapter each to Canada, England, Ireland, France, Spain and Italy. The penultimate chapter looks at inclusionary practices in a variety of other countries including India, Israel, Colombia and South Africa. The review welcomes this addition to the study of affordable housing programs across the developed world.

A link to the Lincoln Land Institute publication is at Jim's earlier blog post on the book. 

Matt Festa

Sullivan & Solomu on Comparative ADR in Land Use Disputes

Edward J. Sullivan (Portland State) and Alexia Solomu (International Court of Justice) have posted Alternative Dispute Resolution in Land Use Disputes — Two Continents and Two Approaches, published in The Urban Lawyer, Vol. 43, No. 4, p. 1036, Fall 2011.  The abstract:

This paper notes the increasing use of alternative dispute resolution ("ADR"), which includes negotiations among parties, mediation, and arbitration) generally and specifically examines its use in resolving planning controversies in two jurisdictions -- England and Wales in the United Kingdom and the State of Oregon in the United States. ADR is less expensive, more efficient, and may well result in a more satisfactory outcome to the parties. In the United States, the siting of locally unwanted land uses ("LULUs"), property rights, and litigation pose profound conflicts for the land use process. In the United Kingdom, initial issuance of permits without hearings, local resistance to major public works projects (such as airport runways and power plants) and lengthy and costly planning inquiries are similar concerns. ADR may be helpful in the resolution of these disputes.

After briefly examining the legal structure of the two planning systems, the authors provide concrete examples of ADR in Oregon (a system that tends to be more informal and geared to solutions in individual cases) and examine the proposed new structure of ADR in planning law in the United Kingdom, including the recent and thoughtful "green paper" on the subject.

Matt Festa

Harris on a Railway, a City, and Public Regulation of Private Property

Douglas C. Harris (UBC Faculty of Law) has posted A Railway, a City, and the Public Regulation of Private Property: CPR v. City of Vancouver, published in CANADIAN PROPERTY LAW STORIES, James Muir, Eric Tucker, and Bruce Ziff, eds., Osgoode Society and Irwin Law, 2012.  The abstract:

The doctrine of regulatory or constructive taking establishes limits on the public regulation of private property in much of the common law world. When public regulation becomes unduly onerous — so as, in effect, to take a property interest from a private owner — the public will be required to compensate the owner for its loss. In 2000, the City of Vancouver passed a by-law that limited the use of a century-old rail line to a public thoroughfare. The Canadian Pacific Railway, which owned the line, claimed the regulation amounted to a taking of its property for which the city should pay compensation. The case, which rose to the Supreme Court of Canada in 2006, marked that court’s first engagement with the doctrine of regulatory taking (also known in Canada as de facto expropriation) in nearly twenty years. This chapter explores the intertwined histories of a railway company and a city that gave rise to CPR v. City of Vancouver. It then analyzes the court decisions and considers the role of courts in mediating the appropriate boundary between private property and public regulation in a jurisdiction where there is no constitutional protection for private property.

Matt Festa

Layard on Law and Localism in Multiple Occupancy Housing

Antonia Layard (Cardiff), one of our guest bloggers, has posted Law and Localism: The Case of Multiple Occupancy Housing, forthcoming in Legal Studies (2012).  The abstract:

This paper investigates how planning regulation constructs the local, encapsulating a locality and prioritizing local decision-making over regional and national scales. It draws on a case study of the regulation of multiple occupation to make three inter-related points. First, the analysis emphasizes the plurality of ‘locals’ and the interrelationships between them. Second, the paper explains how the justification of the local is required to make a locality legally visible. This operationalization and construction of the local (legally, spatially and socially) must take place before the political logic of localism, the prioritization of local decision-making over other scales of governance, can take legal effect. Third the paper explains how, once the ‘local’ is legally constructed and can make decisions, this prioritization of apparently neutral local expertise and knowledge can act to enclose the spatial and social with sometimes powerful exclusionary and regressive effects.

Matt Festa

Arezki, Deininger, & Selod on What Drives the Global Land Rush

Rabah Arezki (IMF), Klaus Deininger (World Bank), and Harris Selod (World Bank) have posted What Drives the Global Land Rush?  The abstract:

This paper studies the determinants of foreign land acquisition for large-scale agriculture. To do so, gravity models are estimated using data on bilateral investment relationships, together with newly constructed indicators of agro-ecological suitability in areas with low population density as well as land rights security. Results confirm the central role of agro-ecological potential as a pull factor. In contrast to the literature on foreign investment in general, the quality of the business climate is insignificant whereas weak land governance and tenure security for current users make countries more attractive for investors. Implications for policy are discussed.

Matt Festa

 

Foster and Bonilla on the Social Function of Property

Sheila Foster (Fordham) and Daniel Bonilla have posted The Social Function of Property: A Comparative Law Perspective, 80 Fordham L. Rev. 101 (2011).  Here's the abstract:

The classical liberal conception of property dominates the modern legal and political imagination. The idea that property is a subjective and nearly absolute right controls the way in which much of modern law and politics understand this institution. Despite its ubiquity in the modern legal and political consciousness, the classical liberal conception of property competes with, and is challenged by, other forms of imagining the institution. One of these alternative concepts, and perhaps one of the most suggestive and influential of the twentieth century, is the social function of property. This concept was articulated paradigmatically by the French jurist León Duguit in a set of six lectures given in Buenos Aires in 1911. According to this view, property has internal limits—not just external ones as in the case of the liberal right to property.

The concept of the social function of property has been incorporated by a significant number of European and Latin American legal systems and been instrumental in the political struggle that has occurred in some countries to achieve a fairer distribution of land. In Latin America, for example, the social function of property was included in several constitutions and has been instrumental in justifying the agrarian and urban reform projects developed in several countries in the region. In the United States, while no legal norm includes explicitly the words “social function of property,” some U.S. legal scholars consider that a “social obligation” norm does exist in U.S. law, albeit perhaps only at the margins of property jurisprudence. According to this norm, property owners have social responsibilities to others that extend beyond the highly individualized, and atomized, conventional account of property rights.

This essay is an introduction to a symposium held at Fordham School of Law in which an impressive group of scholars from the United States and Latin America convened to examine the contemporary interpretations and use of the social function of property in Latin America and its exclusion or marginal inclusion in the U.S. The symposium papers highlight and examine the interpretations of the social function of property articulated during the last two decades by some Latin American constitutional courts, as well as the symbolic and material effects that these readings have had in the region. As many of the papers published in this issue demonstrate, the social function of property has had interesting conceptual histories and applications in Latin America. The papers also scrutinize and analyze the concepts and institutions through which the social function of property has entered the U.S. legal system and explore why these concepts and institutions have had such a limited influence. Finally, the papers identify the tensions and connections that the social function of property has with relatively new legal concepts like the ecological function of property, and to explore its connections with various historical discourses and social structures in the U.S. and Latin America.

Jim K.

Ellickson on Complex Land Titles in China, Then and Now

Robert Ellickson (Yale) has posted a draft of The Costs of Complex Land Titles: Two Examples from China. He presented this paper at last month's Brigham-Kanner Conference, which was held this year in Beijing instead of its usual home at William & Mary. Here's the abstract:

Chinese customs and law have traditionally prevented a land seller from conveying outright title to a buyer. The ancient custom of dian, which persisted until the 1949 Revolution, gave a land seller and his lineage an immutable option to buy back sold land at the original sale price. This little-analyzed custom discouraged soil conservation and land improvements, and, especially after 1600, contributed to China’s inability to keep pace with England.

After calamitous experiences with land collectivization between 1951 and 1981, China’s Communist government began to confer private land-use rights. But, instead of making outright sales, it chose to award contractual rights only for a fixed-term, for example, 50 years in the case of an industrial parcel. For the same reasons dian did, this policy threatens to impair China’s prospects of economic development.

Fun fact: Bob Ellickson placed 70th in the 2010 National Scrabble Championship.

Jim K.