PropertyProf Blog

Nadler and Diamond on the Psychology of Eminent Domain

Janice Nadler and Shari Seidman Diamond (Northwestern) have posted Eminent Domain and the Psychology of Property Rights: Proposed Use, Subjective Attachment, and Taker Identity on SSRN.  Here's the abstract:

The U.S. Supreme Court's decision in Kelo v. City of New London, allowing governments to force the sale of private property to promote economic development, provoked bipartisan and widespread public outrage. Given that the decision in Kelo was rendered virtually inevitable by the Court's earlier public use decisions, what accounts for the dread and dismay that the decision provoked among ordinary citizens? We conducted two experiments that represent an early effort at addressing a few of the many possible causes underlying the Kelo backlash. Together, these studies suggest that the constitutional focus on public purpose in Kelo does not fully, or even principally, explain the public outrage that followed it. Our experiments suggest that subjective attachment to property looms far larger in determining the perceived justice of a taking. We have only begun to map out the contours of this response, but these initial findings show promise in helping to build a more democratic model for the law and policies dealing with takings.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Salkin on Smart Growth

Patricia Salkin (Albany) has posted Smart Growth and the Greening of Comprehensive Plans and Land Use Regulations on SSRN.  Here's the abstract:

Global warming, climate change, reducing greenhouse gas emissions, reducing the carbon footprint, and going green are just some of the buzz words in the news over the last two years that have captured the attention of lawmakers and policymakers at all levels of government. In Congress, lawmakers have proposed, among other things, mandating standards to reduce greenhouse gas emissions, and governors across the country have announced myriad programs designed to encourage the use by governments of green products, the construction of green buildings, and the offering of a combination of tax incentives and grants for private developers and other members of the public who develop and install various renewable energy products. However, It is initiatives at the local government level that have the greatest potential for most quickly and most efficiently slowing the pace of global warming. This is because local governments are the critical decision-makers in how communities use and conserve key resources. Municipalities serious about curbing emissions as well as energy and water usage within their communities, to both combat global warming and to preserve the immediate environment, have found many successful ways to implement plans that reduce the strain on environmental resources. Local governments have begun to incorporate principles and goals of sustainability and carbon reduction into comprehensive land use plans. This paper begins to examine the elements of a "green audit" for local comprehensive plans and land use regulations.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Forbes Cave Discussion

Thanks to Carl Christensen of the University of Hawaii law school for this link to an article in Museum, the publication of the American Association of Museums, on the recent controversy over repatriation under NAGPRA of the "Forbes Cave" materials, now held by Bishop Museum.  "Agree, disagree, or whatever, it's an interesting piece about a statute that will undoubtedly be the source of continuing controversy in the Hawaii community," says Christensen.

 

Alfred Brophy

Boston's Suburban Property

The Boston Globe has an interesting story about a dispute centered on a 210-acre plot owned by Boston in the suburbs of Woburn and Burlington:

When Mary Cummings bequeathed 210 acres of old farmland in Woburn and Burlington to the City of Boston, she asked that it be kept forever as a "public pleasure ground." But 80 years later, angry suburban residents say Boston officials are failing to preserve the wealthy widow's vision. The public's pleasure, they contend, is not being served at all.

This is as much a trust issue as a land-use issue.  It appears that the central problem is that it is difficult for Boston to use the land for the benefit of Boston residents.  The locals, of course, want the park used for their own benefit.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Bertacchini, De Mot and Depoorter on Commons, Anticommons and Semicommons

Enrico Bertacchini (University of Turin), Jef De Mot (Ghent University), and Ben Depoorter (U. Miami and Ghent University) have posted Never Two Without Three: Commons, Anticommons and Semicommons on SSRN.  Here's the abstract:

A semicommons regime exists when the efficient use of a resource requires the coexistence of both common and private uses. In a seminal article, Henry Smith examined the system of semicommons property in regard to medieval open-fields. In such a system, peasants shared common land for collective grazing, but used privately owned scattered strips for grain growing. This paper provides the first formal model of semicommons property regimes. Our model demonstrates (1) how the costs of strategic behavior in semicommons regimes may outweigh those in commons regimes and (2) how semicommons regimes may solve collective action problems by introducing anticommons arrangements. We extend previous property literature by offering new insights as to conditions in which mixed property regimes emerge and fragmentation solutions are favored.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Update on the Trees v. the Solar Panels

A while back, we noted an interesting California case that involved a conflict between redwoods and solar panels.  The Times has an update on the story.  An excerpt:

More than six months after two Santa Clara residents were convicted under a state nuisance law for letting their redwoods cast shade on a neighbor’s solar panels, the governor signed into law a bill that gives trees the right to grow as they please — as long as they predate any solar panels they might be shading. . . .

The new law is not retroactive; the original conviction stands. But the neighborhood fight is not over. Mr. Vargas has gone back to civil court, suing his neighbors in part because of the solar-panel issue, but also because he claimed the trees’ roots damage an underground storm drain and because they violate state laws prohibiting spite fences.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Conference in Honor of Morton Horwitz

This morning's email brings the program for a conference in honor of Morton Horwitz, which will be held at Harvard Law School this September 26 and 27.  It is sponsored by Harvard Law School, The Harvard Civil Rights-Civil Liberties Law Review and the Illinois Legal History Program.   Mary Dudziak's  Legal History Blog has all the details.  Daniel Hamilton's done his typically awesome work of putting together a very full program.

Alfred Brophy

Wolf on Euclid

Propertyprofs will want to check out Michael Allan Wolf's new book The Zoning of America: Euclid v. Ambler, which is appearing next month in the University Press of Kansas' important series on Landmark Law Cases.  Here is the description from the Kansas website:

When the Cleveland suburb of Euclid first zoned its land in 1922, the Ambler Realty Company was left with a sizable tract it could no longer sell for industrial use—and so the company sued. What emerged was the seminal zoning case in American history, pitting reformers against private property advocates in the Supreme Court and raising the question of whether a municipality could deny property owners the right to use their land however they chose.

Reconstructing the case that made zoning a central element in urban planning for cities and towns throughout America, Michael Allan Wolf provides the first book-length study of the Supreme Court’s landmark Euclid v. Ambler decision. Wolf describes how the ordinance, and the defense of it, burst onto the national stage and became the focus of litigation before moving all the way to the nation’s highest court. He subsequently reveals how and why Justice George Sutherland broke from the Court’s conservative bloc to support the urban reform movement eager to protect residential neighborhoods from disturbances created by rapidly expanding commercial, industrial, or multifamily uses of land. Following that decision, America saw the rapid proliferation of zoning ordinances, which greatly increased the power of local government to control and rationalize urban planning.            

As Wolf attests, many of today’s environmental and land use laws might not have been deemed legal had Euclid v. Ambler been decided differently. But he also points out the potential dangers that emerged from the decision, such as its anticompetitive impact on the real estate market, its catalyzing effect on suburban sprawl, and its establishment of a legal basis for excluding minority groups from neighborhoods.

Wolf’s compelling account makes it clear that Euclid v. Ambler fundamentally altered how we think about the urban landscape, changed the way our cities and suburbs are organized, and left a long shadow over subsequent cases such as the controversial Supreme Court decision in Kelo v. New London (2005).

I'm looking forward to reading it.

Alfred Brophy

Affordable Housing in the News

From the Philadelphia Inquirer:

Saying new affordable-housing obligations would force suburban towns to build beyond their capacity, a coalition of nearly 200 mayors said yesterday they would challenge the regulations in court.

The dispute centers on state rules, unveiled in December, that roughly doubled the affordable-housing requirements first proposed in 2004.

Local leaders say they have neither the space to build the amount of new housing the state demands, nor the money to pay for the associated classrooms, roads and sewers.

"What these regulations will do is turn the state into one large urban area," Bridgewater Mayor Patricia Flannery said during a news conference in the Statehouse yesterday. "What these rules are saying is every piece of land in your town is going to be built to such density, and that's the key word here, density." . . .

The fight has become synonymous with Mount Laurel, named in the Supreme Court case that spawned the state's rules. Mayor John Drinkard said Mount Laurel would join the league's challenge and file its own suit against the latest regulations.

"We're not objecting to the [affordable-housing] obligation, what we're objecting to is the number and the way the state has gone about forcing this number down our throats," Drinkard said.

Mount Laurel could have to provide 1,400 affordable-housing units by 2018, according to the rules.

Affordable-housing advocates said the mayors were trying to avoid a constitutional obligation.

To me, the following was one of the more interesting passages in the article:

The league also argues that the latest requirements are based on faulty estimates of land available for new housing. For example, mayors said the projections include land marked for open-space preservation.

The conflict between legitimate concerns about open space and affordable housing is fascinating, and will increasingly feature in this kind of debate.  By "legitimate", I mean sincere concerns about open space, as opposed to pretextual concerns about open space that are really motivated by a desire to exclude certain people from a community.  It's really easy to tell the difference, right?

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Bogart on Good Faith in Commercial Leasing

Daniel B. Bogart (Chapman) has posted Good Faith and Fair Dealing in Commercial Leasing: The Right Doctrine in the Wrong Transaction on SSRN.  Here's the abstract:

Professor Bogart was keynote lecturer for the 2007 Kratovil Conference Real Estate Law and Practice sponsored by the John Marshall Law School Center for Real Estate Law. This article was solicited in connection with that lecture. In this article, Professor Daniel Bogart criticizes the unfortunate habit of many courts to import the doctrine of good faith and fair dealing, as it has been developed in residential real estate law, into commercial leasing. Commercial leasing practice is hugely important to real property lawyers and generates a significant portion of their legal fees. More importantly, commercial leasing is the driving force behind much of commercial real property development. In the first Part of his article, Professor Bogart examines the doctrine of good faith and fair dealing and questions its applicability to commercial lease transactions. He draws upon the thoughtful scholarship of Professor Emily M. S. Houh and other scholars. Two approaches to good faith have dominated scholarly discussion: the Restatement Second of Contracts Section 205 and an economic analysis of lost opportunities. Section 205 of the Restatement essentially defines as "good faith" everything that is not "bad faith." Courts adopting this approach create an open-ended laundry list of bad landlord behavior, and aim to "do justice" among the parties to a dispute. This is the dominant view and has been used successfully in residential leasing scenarios to prevent unscrupulous landlords from preying on tenants. This approach is also a basis for the Implied Warranty of Habitability. A second approach to good faith and fair dealing is grounded in economics and seeks only to prevent one party from opportunistically extracting after the fact some right that could have been negotiated into the initial contract document. Professor Bogart argues that this second approach more closely fits the commercial leasing context, in which parties are or could be represented by counsel and are typically more business savvy than their residential counterparts. Indeed, as Professor Bogart notes in the article, this is behavior that real estate lawyers see routinely, and call "taking a second bite at the apple." Professor Bogart also argues that a casual application of the doctrine of good faith releases parties to the commercial lease from the bitter fruits of their negotiated agreements and lessens the value of good lawyering. One primary goal of courts, especially in the commercial context, should be to encourage parties to transactions to find good attorneys and then heed their attorneys' advice. In the second Part of his article, Professor Bogart tests three increasingly complex hypothetical commercial lease disputes and asks whether, in any of them, the landlord or tenant violated the doctrine of good faith and fair dealing. Each hypothetical is based on an actual, litigated lease dispute that rose to the state appellate level. In one case, the court found a party to have violated the doctrine. Professor Bogart argues that none of the fact patterns should be deemed to be the basis for a breach of the doctrine of good faith.

I heard Danny present this paper at a workshop, and it is outstanding.  It captures a lot of what used to frustrate me as a litigator about the approach many courts take to fairness in commercial cases.  The courts' well-meaning injection of fairness considerations ends up undercutting the ability of parties to allocate risk by contract.  Highly recommended!

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Two By Fee

John Fee (BYU) has posted two articles that have been published in the last couple of years on SSRN:

Eminent Domain and the Sanctity of Home

The Supreme Court's decision in Kelo v. New London has caused alarm over how easy it is for government to take private homes through eminent domain. The image of government officials ousting people from their homes for unnecessary projects has sparked movements to reform eminent domain in many states. Typically, such reform efforts are focused on the public use doctrine and what government agencies plan to do with property after taking it, rather than the unique nature of home property and its value to homeowners.

This article concludes that the root of the problem lies beyond the public use doctrine. Government takes too many homes from unwilling homeowners, and for too cheaply, even for traditional public use projects. The article explores potential methods of protecting homes against unjustified condemnation, including substantive and procedural methods. The article concludes that while various methods have advantages, adjusting the compensation structure of eminent domain to require significantly greater compensation in the case of home takings is most likely to produce optimal results. A system of compensation that recognizes more accurately what homes are typically worth to their owners would produce greater deterrence against government takings, and would improve the bargaining process between government officials and homeowners, while still allowing governments to overcome holdouts in cases of genuine public necessity.

The Takings Clause as a Comparative Right

The Fifth Amendment Takings Clause, like the Equal Protection Clause, is designed to protect the legal rights of individual citizens relative to others, not to protect the legal rights of individual expectations of wealth or to provide and insurance policy against unreasonable governmental burdens. The proper role of the regulatory takings doctrine is to require compensation in those circumstances where the government legitimately targets one or a few owners to bear a unique legal burden for the benefit of the general community. Only through a comparative theory of takings doctrine can we begin to solve many of the puzzles that appear in the law. This paper provides a defense of a comparative theory of takings law, a discussion of how a comparative theory should work, and shows how a comparative theory serves to explain many of the results of current takings law.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Townsend Gard and Goda on Virtual Property

Elizabeth Townsend Gard (Tulane) and Rachel Goda (Seattle) have posted The Fizzy Experiment: Second Life, Virtual Property and a 1L Property Course on SSRN.  Here's the abstract:

This work is an attempt to sort out the relationship between virtual property and common law property. How are we to understand the relationship between a virtual table and an actual table? What does property in this context mean exactly? While many have written about this topic from a myriad of perspectives, we took a slightly different approach. We wanted to see what property elements were being used inside one virtual space - Second Life. We sought to understand the relationship between common law property and virtual property by combining our knowledge as a property professor with a cultural history background with an avid gamer turned law student. We called it the Fizzy Experiment.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Oil Refinery v. Farms

CNN.com has a story about a controversial oil refinery proposed in South Dakota, and the attendant land-use issues.  The story reminds me of the issues raised in Heller's book on the Gridlock Economy.  The United States needs new refineries, but no one wants one built near them.  It is hard to strike the right balance between giving neighbors the opportunity to voice legitimate concerns and avoiding gridlock.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Michael Heller's The Gridlock Economy

This past weekend, I read Michael Heller's new book The Gridlock Economy:  How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives.  The "this past weekend" part of the previous sentence says a lot of good things about the book -- I have two young kids, and not a lot of free time on the weekends.  The Gridlock Economy is one of those rare books that makes important theoretical points while being an easy, enjoyable read.  Like Hernando de Soto's The Mystery of Capital, The Gridlock Economy is clearly written and illustrates its points with engaging examples.  You could assign the whole book for a week's reading in a class and not feel guilty about overwhelming your students.

The book's core points build on insights that Heller first developed in The Tragedy of the Anticommons: Property in the Transition from Marx to Markets.  The basic idea of the anticommons is that highly-divided ownership of property can lead to the underutilization of resources.  If too many people have control over a resource, decisionmaking gets gummed up, transaction costs multiply, and resources are underused.  Heller's iconic example of the anticommons is Moscow storefronts, where the right of many "owners" to veto various uses led to stores that remained vacant while kiosks thrived on the sidewalks just outside.  If the tragedy of the commons can be seen as being caused by an absence of property rights, the tragedy of the anticommons can be seen as being caused by an overabundance of property rights.  Heller argues that we should be seeking the sweetspot between too much and too little property:  "Well-functioning private property is a fragile balance poised between the extremes of overuse and underuse." (p. 19).

The Gridlock Economy explores this theme in a number of interesting settings, including biotech patents, broadcast spectrum, land use regulation, and land assembly.  My one quibble is that the book occasionally crams problems that don't seem to fit into the anticommons category.  One example is the fiasco of underutilized broadcast spectrum owned by television broadcasters. (p. 96)  If the broadcasters had stronger property rights in this spectrum, it probably would not be underutilized to such a degree.  This particular problem therefore seems to be more about too little property, rather than too much property.  Another example is the problem of highly-fractionated interests that results from multiple generations of a family passing property through intestacy.  After a few generations, a single plot of land can have scores of owners.  These multitude of owners can lead to real anticommons problems -- just imagine trying to get the consent of thirty cousins to do anything with a piece of property.  As a remedy for this sort of multiple-ownership problem, the law allows the property to be partitioned.  For property with many owners, partition is usually achieved through a judicial sale of the property, with the proceeds divided among the owners.  As Heller describes (p. 121)the partition process has a ton of flaws, and needs to be reformed.  But Heller's complaints about partition are about the flaws in a remedy for an anticommons problem, not the anticommons problem itself.

As noted, these are just quibbles.  This is a great book.

Ben Barros

Crossposted to PrawfsBlawg

[Comments are held for approval, so there will be some delay in posting]

Salkin on Land Use and Natural Disaster Mitigation

Patricial Salkin (Albany) has posted Sustainability at the Edge: The Opportunity and Responsibility of Local Governments to Most Effectively Plan for Natural Disaster Mitigation on SSRN.  Here's the abstract:

The traditional link between disaster mitigation and local land use planning was highlighted by the Disaster Mitigation Act (DMA) of 2000, which emphasizes the need for mitigation coordination among state and local entities. This article looks at the role of local governments in natural disaster mitigation, specifically, how local governments may use traditional land use powers, such as the police power, to protect against disasters. The paper cites DMA provisions that offer financial incentives to states that work with local governments to plan for growth and disasters; and sets forth case studies to illustrate how states can create vertical links among federal,state, and local entities to coordinate disaster mitigation strategies.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Alexander on Public Housing Reform in Chicago

Lisa A. Alexander (Wisconsin) has posted A Sociolegal History of Public Housing Reform in Chicago on SSRN.  Here's the abstract:

This essay summarizes and compares Alexander Polikoff's Waiting for Gautreaux: A Story of Segregation, Housing, and the Black Ghetto and Mary Pattillo's Black on the Block: The Politics of Race and Class in the City to convey the contributions and limitations of each book. Both works provide a rich sociolegal history of public housing reform in Chicago and illustrate the challenges Chicago has faced in implementing recent HOPE VI public housing reforms. I compare Polikoff's forty-year battle to desegregate public housing in Chicago with Pattillo's insightful observations of class dynamics between the new middle-class African-American power brokers of housing reform and public housing residents. Through this comparison, I seek to show that Polikoff's long-term prescriptions for public housing reform are based upon a conception of the inner city that may no longer be entirely accurate. This comparison also conveys the social complexity inherent in HOPE VI reform efforts, a complexity often overlooked in the prevailing policy and academic debates.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Independence Day In Hillsborough, NC

What could be better for someone who studies history and cemeteries than an Independence Day visit to the grave of one of the signers of the Declaration of Independence?!  Not much, I imagine.  Hence, I set off yesterday morning to visit Hillsborough--a really charming town and close enough to Chapel Hill that it's still affordable to drive there.  Hillsborough is where Thomas Ruffin lived and where several of the "Regulators" were hanged after their rebellion was put down in 1771.

In the church yard of the Hillsborough Presbyterian Church, Thomas Hooper--a signer of the Declaration--was buried in 1790.  Was buried is the operative term--he was exhumed and reburied in Greensboro in 1894 (as part of the creation of a park to commemorate a Revolutionary War battle fought there).  I'm not a huge fan of reburials to create a new park--seems like the attempt to "manufacture" gravitas--and it's done at the expense of a dead person, who obviously can't object.  But then if the relevant family members are ok with it, that's all that's required by law.

Anyway, the church yard is lovely and I saw the place where Hooper had been buried.  (He's a pretty interesting guy, btw--born in Boston and educated at Boston Latin School and Harvard, then trained in law with James Otis and relocated to North Carolina in the 1760s.  Hooper was initially closely tied to the colonial government, then slowly came over the Revolutionary cause, and after the war was a Federalist.)

Alfred Brophy

God and Land at Albany

The Albany Government Law Review and Government Law Center at Albany Law School are cosponsoring a conference called God and the Land:  Conflicts Over Land Use and Religious Freedom.  The conference will be held at Albany Law from October 1-3, 2008.  They have a great group of speakers.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Property Prof as Graduate Student

I'm guesting this month over at PrawfsBlawg.  As some readers know, for the past two years I've been doing graduate work in philosophy at the University of Maryland.  I just put up a post at Prawfs that talks about doing graduate work while being a law professor.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]