PropertyProf Blog

Halpin on Hohfeld

Andrew Halpin (Swansea University School of Law) has posted Rights, Duties, Liabilities, and Hohfeld on SSRN.  Here's the abstract:

This essay engages with Jaffey's recent contribution to Legal Theory on the nature of no-prior-duty remedial obligations. Jaffey's use of a right-liability relation and his challenge to Hohfeld's analytical scheme are rejected as unsound. An alternative model distinguishing three pathways to account for remedial obligations and other legal consequences is proposed. This draws on the Hohfeldian scheme but extends it to permit the full expression of reflexive liabilities, mutually correlative liabilities, and the operation of non-human conditions. The proposed approach also recognises a weaker form of a Hohfeldian power, which is required in considering the way that the law deals with the allocation and realisation of risk. It is mentioned in passing that the analytical discussion within the essay may have implications for the law of tort, restitution, and how particular conceptions of property are established in society.

Ben Barros

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Iglesias on Pluralist Housing Ethics

Tim Iglesias (University of San Francisco) has posted Our Pluralist Housing Ethics and the Struggle for Affordability on SSRN.  Here's the abstract:

Building on recent scholarship, this Article explores the five housing ethics that have historically shaped U.S. housing law and policy: (1) housing as an economic good, (2) housing as home, (3) housing as a human right, (4) housing as providing social order, and (5) housing as one land use in a functional system. The housing ethic framework brings all of America's housing law and policy under one conceptual roof. The Article
argues that each of these housing ethics is deeply embedded in American housing policy and law, and that none has ever achieved a complete hegemony, i.e., that coexistence and pluralism among the housing ethics is the norm. The Article examines the challenges and opportunities that our housing ethic pluralism presents to the affordable housing movement. It identifies the housing as one land use in a functional system ethic as the single most promising ethic to advance affordability.

Ben Barros

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Korobkin on Buying and Selling Human Tissues

Russell B. Korobkin (UCLA) has posted Buying and Selling Human Tissues for Stem Cell Research on SSRN. Here's the abstract:

A series of expert committee reports and legislative proposals suggest an emerging consensus in the medical research and public policy communities that compensation of donors of tissues for stem cell and other biomedical research should be prohibited. Professor Korobkin challenges this consensus by outlining, analyzing, and ultimately rejecting, the leading arguments in favor of no compensation rules: that compensation is coercive, that it inappropriately commodifies the human body, that it will reduce the opportunity for altruistic donations, and that it will increase the cost of important medical research. He then evaluates second-best alternatives to allowing cash compensation for tissues and concludes by comparing the issues raised by compensation for research tissues with those raised by compensation for transplant organs.

Ben Barros

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Webb, Beuermann, and Revilla on Squatters and Land Titling

Richard Webb (University of San Martín de Porres); Diether W. Beuermann (University of Maryland) and Carla Revilla (Universidad San Martin de Porres) have posted The Building Process of Property Rights: The Case of Urban Squatters in Peru on SSRN.  Here's the abstract:

Property rights in urban squatters have a diversity of origins, evolve gradually, and are greater than what is thought. As a consequence, the benefits of these rights are also generated in a partial and gradual fashion, as the consolidation of these rights evolves. This vision is based on empirical evidence detailed in the document, as well as on a review of the norms that rule these rights.

Based on this view, we assess the information disclosed by the Institute for Liberty and Democracy (ILD) on December 17, 2004. This information was referred to the economic effects of a massive land titling program carried out by the Peruvian Government during the 1990's. We show that the suggested economic benefits suffer from calculation and interpretation mistakes. In that way, it appears that there have been huge overestimations of the net benefits that could be attributable to this titling program.

We hope that this interpretation would provide a more realistic guide for the formalization and implementation of policies oriented towards property rights strengthening and urban poverty reduction.

Ben Barros

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Anderson on Oregon Zoning

Jerry L. Anderson (Drake University School of Law) has posted Zoning Bias II: A Study of Oregon's Zoning Commission Composition Restrictions on SSRN.  Here's the abstract:

This article summarizes an empirical survey of Oregon planning commissions, to determine whether Oregon's occupational restrictions on commission appointments are working. An earlier survey found that zoning boards in Iowa were heavily populated with white-collar occupations, with many having a direct or indirect connection to land development work. Oregon's occupational restrictions appear to have reduced the number of appointees who are tied to development, but the commissions are still skewed toward white-collar representation. The article concludes that legal restrictions should be tightened to achieve the goal of broader occupational distribution.

Ben Barros

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Parisi on the Coase Theorem

Francesco Parisi (University of Minnesota) has posted Coase Theorem on SSRN.  Here's the abstract:

The Coase Theorem holds that, regardless of the initial allocation of property rights and choice of remedial protection, the market will determine ultimate allocations of legal entitlements, based on their relative value to different parties. Coase's assertion has occasioned intense debate. This article provides an intellectual history of Coase's fundamental theorem and surveys the legal and economic literature that has developed around it. It appraises the most notable attacks to the Coase Theorem, and examines its methodological implications and normative and practical significance in legal and policy settings.

Ben Barros

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Bartow on Naming Rights

Ann Bartow (University of South Carolina) has posted Trademarks of Privilege: Naming Rights and the Physical Public Domain on SSRN.  Here's the abstract:

This paper critiques the branding and labeling of the physical public domain with the names of corporations, commercial products, and individuals. It suggests that under-recognized public policy conflicts exist between the naming policies and practices of political subdivisions, trademark law, and right of publicity doctrines. It further argues that naming acts are often undemocratic and unfair, illegitimately appropriate public assets for private use, and constitute a limited form of compelled speech. It concludes by considering alternative mechanisms by which the names of public facilities could be chosen.

Ben Barros

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Oliveri on the FHA

Rigel Christine Oliveri (University of Missouri-Columbia) has posted Is Acquisition Everything? Protecting the Rights of Occupants Under the Fair Housing Act on SSRN.  Here's the abstract:

This Article addresses a recent trend among the federal courts to deny housing discrimination claims under the Fair Housing Act in cases where the plaintiff was an occupant of the housing at the time the discrimination occurred. Put another way, the courts have begun to read the FHA as protecting only the right to obtain housing, not the right to occupy that housing free of discrimination.

The trend began with a 2004 Seventh Circuit opinion authored by Judge Richard Posner in the case of Halprin v. The Prairie Single Family Homes. Halprin dismissed most of the claims of a Jewish couple who alleged that the President of their Homeowner's Association discriminated against them in a variety of ways. The sole reason for the dismissal was that the couple already owned their home and, according to Judge Posner, the FHA is concerned only with access to housing. Nearly a dozen federal courts have since followed suit.

This Article argues that Halprin was wrongly decided, and critiques the reasoning Judge Posner used to reach his conclusion. Next, the Article proposes a better method of determining how the Act should apply: specifically, that language in the FHA which limits the application of particular provisions to the "sale or rental of housing" is intended to refer to the relationship between the parties, and not to a particular point in time. This interpretation has the advantage of reaching not only landlords who discriminate against tenants, but also defendants such as Homeowner's Associations and municipalities, which are capable of discriminating against individuals who have purchased their homes.

Halprin's analysis will have potentially disastrous consequences for fair housing law, and it represents a departure from the manner in which remedial civil rights statutes have heretofore been interpreted. The Article concludes by situating Halprin within the broader debate between neoconservatives and Critical Race scholars about the proper aims of civil rights law in this "post civil rights" era.

Ben Barros

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Lehavi on Mixing Property

Amnon Lehavi (Interdisciplinary Center Herzliyah - Radzyner School of Law ) has posted Mixing Property on SSRN.  Here's the abstract:

Mixed property regimes are on the rise in the United States and in many other countries throughout the world. Yet this fast-growing phenomenon currently lacks a broad-scale scholarly analysis aimed at extracting the shared theoretical principles of these intriguing property configurations. This Article offers an innovative analysis of the various types of mixed property regimes located along the sides of the private-common-public property triangle and within it. The Article re-conceptualizes the property formations of Public-Private Partnerships and Common Interest Communities, and identifies and analyzes phenomena such as the Israeli Renewing Kibbutz, various forms of public-common property mixtures (e.g., the management and maintenance of city-owned parks in New York City), and tri-layered regimes such as Community Land Trusts. In so doing, this Article offers a first of its kind, comprehensive taxonomy of mixed property regimes.

Although these different property patterns vary greatly in the way they create, allocate, and enforce entitlements and responsibilities among the relevant parties, this Article identifies a consolidated theoretical basis for mixed property regimes, pointing as well to the normative advantages that these hybrid forms may have over purer property regimes, thus significantly enriching the property landscape.

Ben Barros

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Post-Kelo Eminent Domain Reform

Reason Magazine on-line has a short essay on post-Kelo eminent domain reform by Ilya Somin (George Mason).

Ben Barros

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Rose on Federalism and Takings

Carol M. Rose (University of Arizona) has posted What Federalism Tells Us About Takings Jurisprudence on SSRN.  Here's the abstract:

This paper, one of several in a symposium on “constitutional niches,” discusses a niche within a niche: federalism considerations in theories of governmental takings of property. Several property theorists have argued that larger-scale and smaller-scale legislative bodies should be treated differently in takings jurisprudence, since these differently-scaled legislatures are likely to behave differently in dealing with individuals' property, and to respond differently to compensation requirements. The author agrees with this general proposition, but she sharply disagrees with the centralist drift of most of this literature, which would favor the national legislature while imposing strict takings requirements on local legislatures; she argues that these analyses overlook the existing constraints on smaller-scale governing bodies. Meanwhile, the courts have paid very little overt attention to federalism concerns of any kind in takings jurisprudence, string-citing cases about local, state, and national governments without distinguishing them. Instead of responding to federalism (and other) taking theories, actual takings jurisprudence vacillates between leniency toward all legislatures and contempt for them. The author argues, however, that federalism considerations might help courts to analyze the legislative process, and might be incorporated into takings jurisprudence by a distinction between Fifth Amendment and Fourteenth Amendment takings.

Ben Barros

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Turnbull on Sustainable Urban Communities

Shann Turnbull (Macquarie University - Asia Pacific Research Institute) has posted A Framework for Designing Sustainable Urban Communities on SSRN.  Here's the abstract:

The objectives of the paper are to show how the sustainability of urban settlements can be improved by treating as a variable the design of: (a) property rights to realty, corporations and currencies and: (b) their communication and control governance architecture. System science provides the basis for showing that the governance of complexity is improved by increasing the richness and variety of communication and control channels. The new variables introduced also provide a way to integrate the design of the built environment into the design of its governance architecture. The scope of orthodox economic analysis is extended to include the value of assets and liabilities to provide additional feedback signals. This more holistic economic framework increases the richness of the "semiotic" channel of social communication and control that complements those based on senses, words and prices. The analysis reveals self-reinforcing feed forward and feedback channels between the use and maintenance of the built environment and its governance architecture not available in less holistic design frameworks. This identifies the need for urban planners to extend their discipline to become governance architects and how the knowledge of system scientists can be applied to improve the design of capitalism. The analysis indicates how a design paradigm that does not accept the nature of property rights as a given, but a design variable, can enhance the ability towns or suburbs to become self-financing, self-governing political units. It also shows how capitalism can be made more efficient, equitable, responsive and democratic.

Ben Barros

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Billion-Dollar Housing Sale and the Takings Clause

I want to thank Ben and Al for welcoming me to PropertyProf.  I’ve long been a fan, and hope to have an interesting post or two to add from time to time.  So, here goes…

The New York Times reported over the weekend on the latest development in a proposed $1.3 billion sale of Brooklyn’s Spring Creek Towers, better known as Starrett City.  Back in February, Clipper Equity submitted the winning bid to purchase Starrett City, the nation’s largest federally subsidized housing development, with nearly 6,000 units in 46 buildings housing roughly 14,000 people.  In March, HUD rejected the initial proposed structure for the sale, and the New York State Division of Housing and Community Renewal rejected a subsequent proposal.  According to the Times, however, the sale may still go through.

This transaction raises a number of important policy questions, but in particular is emerging as a poster child for the issue of housing preservation—how to keep units that house low- and moderate-income residents developed with public subsidies from moving to market-rate (and, in places like New York, high-end) housing.   As the Urban Prospect has noted, Starrett City was developed with a combination of federal subsidies under the Section 236 program as well as with rent subsidies under the Rental Assistance Program, a precursor to the current project-based Section 8 program.  Starrett City also received state subsidies under New York’s Mitchell-Lama program, and city real estate tax abatements. 

The great irony of the myriad attempts to block the sale is that Starrett City’s current owners appear to have the right to exit from the federal and state programs that helped build the development.  Legislation recently introduced in New York would extend rent stabilization to projects like Starrett City upon exit from the Mitchell-Lama program, but the owners have much flexibility, especially over the long run, to shift Starrett City away from its original purpose.  (Clipper Equity has signaled a commitment to affordable housing at Starrett City, but the question remains whether that commitment is binding.)

From a property law perspective, these tussles over whether Starrett City will be sold and the fate of its 14,000 tenants echo an earlier round in housing preservation policy that implicated the Takings Clause.  In Cienega Gardens v. United States, 331 F.3d 1319 (Fed. Cir. 2003), the Federal Circuit reviewed claims that two federal statutes – the Emergency Low Income Housing Preservation Act of 1987 and the Low-Income Housing Preservation and Resident Homeownership Act of 1990 – had abrogated exit rights that owners had under both the Section 236 program (used at Starrett City) and a similar federal program, Section 221(d)(3).  Both programs originally allowed owners to prepay their subsidized mortgages after twenty years and thus lift affordability requirements, but the 1987 and 1990 legislation required HUD approval to exercise that exit right.  The Federal Circuit held that this limitation on prepayment constituted a taking under the Fifth Amendment.  As a result, preservation strategies have shifted—as the legislation currently pending in Albany would do in part—towards creating incentives for owners and developers to remain voluntarily in the programs that created the housing in the first place.

The Starrett City controversy highlights one underlying fact in housing policy:  designing housing subsidies with built-in expiration dates seriously risks the significant public investment that has gone into the stock of affordable housing.

Nestor Davidson

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Slate on Selling Organs

Over at Slate, Will Saletan has an interesting article on markets in organs.

Ben Barros

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Guest Blogger: Nestor Davidson

I'm delighted that Nestor Davidson, who teaches at the University of Colorado law school, will be joining us for a guest blogging stint.  Nestor clerked for Judge David S. Tatel on the D.C. circuit and for Justice Souter on the Supreme Court, then worked at HUD and at Latham & Watkins as a real-estate lawyer.  His recent publications include The Problem of Equality in Takings, 102 Nw. U. L. Rev. (forthcoming) (2008); Cooperative Localism: Federal-Local Collaboration in an Era of State Sovereignty, 93 Va. L. Rev. (forthcoming) (2007); and Relational Contracts in the Privatization of Social Welfare: The Case of Housing, 24 Yale L. & Pol’y Rev. 263 (2006).  I hope he'll talk about his scholarship while he's with us.

Welcome!

Ben Barros

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Rybczynski on Homes at Slate

This week, Slate is posting exerpts from Witold Rybczynski's latest book, which traces the development of an American suburb.  Today's post asks why people live in homes, as opposed to other types of structures.  Rybczynski is one of my favorite writers, and his earlier book on home was very influential on my article on Home as a Legal Concept.  Check out the excerpts this week at Slate!

UPDATE:  The second post in the series is on the ranch house.

Ben Barros

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Radford on Penn Central

R.S. Radford (Pacific Legal Foundation) has posted Instead of a Doctrine: Penn Central as the Supreme Court's Retreat from the Rule of Law on SSRN. Here's the abstract:

When the Supreme Court handed down its decision in Penn Central Transportation Co. v. City of New York, it had not decided a regulatory takings case in over half a century. Penn Central's tortured and opaque analysis did little to move takings jurisprudence beyond Justice Holmes' cryptic 1922 maxim, “ if regulation goes too far it will be recognized as a taking.” The Court did little to elaborate on the meaning or weight of Penn Central's vague criteria – the nature of the government action, the economic impact of the regulation, or the owner's distinct investment-backed expectations – preferring instead to enunciate new bright line rules in Loretto v. Teleprompter Manhattan CATV Corp. and Lucas v. South Carolina Coastal Council. It even appeared to abandon Penn Central's terminology altogether in Agins v. City of Tiburon. But in the waning years of the Rehnquist Court, most of the newer formulations of takings doctrine were undermined, scaled back, or abandoned altogether in decisions like Tahoe-Sierra Preservation Council, v. Tahoe Regional Planning Agency and Lingle v. Chevron, USA, Inc. It now falls to the Roberts Court to go back three decades and begin fleshing out the meaning of Penn Central as the Court's “polestar” of regulatory takings law for the 21st century.

Ben Barros

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Somin on Post-Kelo Reform and the Poor

Ilya Somin (George Mason) has posted Is Post-Kelo Eminent Domain Reform Bad for the Poor? on SSRN.  Here's the abstract:

Since the Supreme Court decided Kelo v. City of New London in June 2005, some 35 states have enacted eminent domain reforms laws. In his recent Northwestern University Law Review Colloquy article, which I have been asked to comment on, Professor David Dana argues that most post-Kelo reform efforts are seriously flawed because they tend to forbid the condemnation of the property of the wealthy and the middle class for “economic development,” but allow the condemnation of land on which poor people live under the guise of alleviating “blight.” This, he claims, ensures that the reforms enacted in numerous states “privilege . . . the stability of middle-class households relative to the stability of poor households” and “express . . . the view that the interests and needs of poor households are relatively unimportant.” I agree with Professor Dana that the problem of blight condemnations and its impact on the poor deserve greater attention but take issue with his argument that post-Kelo reform efforts have systematically treated the poor worse than middle and upper class homeowners.

Most of the states that have enacted post-Kelo reform laws have either banned both blight and economic development takings or defined “blight” so broadly that virtually any property can be declared “blighted” and taken. Several others have enacted reforms that provide no real protection to any property owners because of other types of shortcomings. Only nine states are actually guilty of allowing only the condemnation of “blighted” areas, narrowly defined. Even these nine flawed reforms are probably better for the poor than no reform at all. Such a law might benefit many poor people who live in non-blighted areas and are potentially vulnerable to economic development takings. Survey data suggests that the poor themselves overwhelmingly oppose economic development condemnations, suggesting that they are not much concerned about the “expressive harms” that worry Professor Dana. Finally, the exclusion of blighted property from the ban on “economic development” condemnations in some states is not necessarily explained by indifference to or contempt for the interests of the poor. It could also be the result of other factors, such as voter ignorance about the actual effects of blight condemnations.

Ben Barros

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Claeys on Epstein's Takings

Eric Claeys (St. Louis University) has posted Takings: An Appreciative Retrospective on SSRN.  Here's the abstract:

This Essay contributed to a conference held at William and Mary Law School at which Richard Epstein was awarded the 2005 Brigham-Kanner Property Rights Prize. The Essay surveys the legacy of Epstein's 1985 book Takings: Private Property and the Power of Eminent Domain.

Doctrinally, Takings was provocative because it provided a persuasive roadmap by which originalist judges might revive natural-law-based property and contract rights often associated with Lochner v. New York. However, this possibility was always somewhat overdrawn. On one hand, most judges and academics are not originalists but functionalists, and they reject Epstein's classical-liberal property theory on substantive grounds. On the other, serious originalists question the textual foundations for Epstein's project, because they doubt that the Takings Clause applies to the states by substantive due process incorporation. This section closes by considering briefly whether Takings' doctrinal claims might be grounded in the original meaning of the Fourteenth Amendment Privileges or Immunities Clause.

Takings has done far more to affect legal property theory. When Takings was written, the U.S. Supreme Court and academic opinion leaders subscribed uniformly to bundle of rights property theory, which had been developed by Legal Realists in the 1920s to facilitate relatively interventionist theories of government. Takings' most important legacy was to make accessible and respectable again, in contemporary legal academic jargon, the unitary theory of property applied by American natural-law jurists and replaced by the Realist bundle of rights. This section criticizes Epstein for using welfarist utilitarianism to replace the natural-law foundations on which Lochner cases and jurists relied to justify the unitary theory of property. But the Essay concludes by praising Epstein for helping contemporary legal academics appreciate the demands that a classical-liberal understanding of freedom places on property.

Ben Barros

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European Human Rights Case on Frozen Embryos

From the BBC:

Natallie Evans, from Trowbridge, Wilts, and Howard Johnston began IVF treatment in 2001 but he withdrew consent for the embryos to be used after they split up.

She turned to the European courts after exhausting the UK legal process.

Ms Evans, 35, said she was "distraught" after the Grand Chamber of the European Court ruling, but Mr Johnston said "common sense had prevailed".

Ms Evans was diagnosed with ovarian cancer in 2001, but six of the couple's fertilised embryos were frozen and stored prior to her treatment.

But she and Mr Johnston, who lives in Gloucester, split up in 2002 and he wrote to the clinic asking for the embryos to be destroyed.

Ms Evans took the case to the High Court in 2003 asking to be allowed to use them without Mr Johnston's permission.

She has argued he had already consented to their creation, storage and use, and should not be allowed to change his mind.

Current UK laws require both the man and woman to give consent, and allows either party to withdraw that consent up to the point where the embryos are implanted.

Ms Evans lost both the case and the appeal and was told she could not take the case to the House of Lords.

Mr Johnston said common sense had prevailed

She then appealed to the European Court of Human Rights, which again ruled against her a year ago.

Her appeal to the Grand Chamber of the European Court under three articles of the European Convention of Human Rights represented her last chance to save the embryos.

The court ruled unanimously that there had been no breach of the right to life, but on the right to respect for private and family life and on the prohibition of discrimination the 17 judges ruled 13 to four.

Ben Barros

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