Friday, August 28, 2009

Barnes on Property and Natural Resources

Richard Alan Barnes (University of Hull) has posted Property Rights and Natural Resources on SSRN.  Here's the abstract:

The use of private property rights to regulate natural resources is a controversial topic because it touches upon two critical issues: the allocation of wealth in society and the conservation and management of limited resources. This book explores the extension of private property rights and market mechanisms to natural resources in international areas from a legal perspective. It uses marine fisheries to illustrate the issues that can arise in the design of regulatory regimes for natural resources. If property rights are used to regulate natural resources then it is essential that we understand how the law and values embedded within legal systems shape the development and operation of property rights in practice. The author constructs a version of property that articulates both the private and public function of property. This restores some much needed balance to property discourse. He also assesses the impact of international law on the use of property rights - a much neglected topic - and shows how different legal and socio-political values that inhere in different legal regimes fundamentally shape the construction of property rights. Despite the many claimed benefits to be had from the use of private property rights-based management systems, the author warns against an uncritical acceptance of this approach and, in particular, questions whether private property rights are the most suitable and effective arrangement means of regulating of natural resources. He suggests that much more complex forms of holding, such as stewardship, may be required to meet physical, legal and moral imperatives associated with natural resources.

Ben Barros

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

August 28, 2009 in Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, August 27, 2009

Stop the Beach Links

For those interested in following the Stop the Beach judicial takings case, the Petitioner's merits brief, and a bunch of amicus briefs, are available online.  I'll have more to say after the Respondents' brief is in.  Also, there is a story from Greenwire on the NY Times website about the case.

Ben Barros

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August 27, 2009 in Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 26, 2009

Brigham-Kanner Property Rights Conference

This year's Brigham-Kanner Property Rights Conference will be held at William & Mary on October 16-17.  This year's honoree is Richard Pipes.

Ben Barros

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August 26, 2009 in Conferences | Permalink | Comments (1) | TrackBack (0)

Ruhl and Craig on Governance Institutions for Estuaries and Coasts

J. B. Ruhl and Robin Kundis Craig (Florida State) have posted New Sustainable Governance Institutions for Estuaries and Coasts on SSRN.  Here's the abstract:

The central point of inquiry in this chapter - how to design sustainable governance institutions for estuaries and coasts - lends itself to no straightforward answers. Sustainability, while practically a household term in environmental policy dialogue, has proven elusive at best when it comes to setting policy goals into concrete policy text. Governance institutions come in all variety of structures and arrangements, and what might work well to support sustainability in one context may prove entirely ineffective in others. Estuaries and coasts are the most productive and important, but also the most complex, of ecosystems on the planet. Hence the design of sustainable governance institutions for estuaries and coasts is an ambitious, perhaps even audacious, undertaking, for which we can hope only to touch the surface.

The present path of coastal and estuaries development is unsustainable under any definition. Sustainability must move from being an aspiration to supplying the metric by which policy initiatives and decisions are measured, yet the metrics of sustainability remain coarse and unproven. Coastal managers need governance institutions that are simultaneously stronger and more flexible than many used to date, but those institutions’ configurations are likely to be unfamiliar and controversial and much about them remains experimental and untested at this stage. Sustainable governance institutions for estuaries and coasts are, in other words, still largely at the drawing board.

This chapter nonetheless provides an overview of the progress that has been made and the challenges that surely lie ahead. Part I broadly frames the topic of sustainable governance, places it in the context of estuarine and coastal ecosystems, and reviews how the topic has been treated in the major international dialogues and agreements on sustainability. Part II identifies and assesses what are often held out as foundational principles of sustainable governance in general. Part III then reviews different institutional structures that have been used or proposed for arranging and focusing some or all of those principles toward the goal of sustainable governance for estuaries and coasts.

Ben Barros

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

August 26, 2009 in Land Use, Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Ruhl and Craig on Governance Institutions for Estuaries and Coasts

J. B. Ruhl and Robin Kundis Craig (Florida State) have posted New Sustainable Governance Institutions for Estuaries and Coasts on SSRN.  Here's the abstract:

The central point of inquiry in this chapter - how to design sustainable governance institutions for estuaries and coasts - lends itself to no straightforward answers. Sustainability, while practically a household term in environmental policy dialogue, has proven elusive at best when it comes to setting policy goals into concrete policy text. Governance institutions come in all variety of structures and arrangements, and what might work well to support sustainability in one context may prove entirely ineffective in others. Estuaries and coasts are the most productive and important, but also the most complex, of ecosystems on the planet. Hence the design of sustainable governance institutions for estuaries and coasts is an ambitious, perhaps even audacious, undertaking, for which we can hope only to touch the surface.

The present path of coastal and estuaries development is unsustainable under any definition. Sustainability must move from being an aspiration to supplying the metric by which policy initiatives and decisions are measured, yet the metrics of sustainability remain coarse and unproven. Coastal managers need governance institutions that are simultaneously stronger and more flexible than many used to date, but those institutions’ configurations are likely to be unfamiliar and controversial and much about them remains experimental and untested at this stage. Sustainable governance institutions for estuaries and coasts are, in other words, still largely at the drawing board.

This chapter nonetheless provides an overview of the progress that has been made and the challenges that surely lie ahead. Part I broadly frames the topic of sustainable governance, places it in the context of estuarine and coastal ecosystems, and reviews how the topic has been treated in the major international dialogues and agreements on sustainability. Part II identifies and assesses what are often held out as foundational principles of sustainable governance in general. Part III then reviews different institutional structures that have been used or proposed for arranging and focusing some or all of those principles toward the goal of sustainable governance for estuaries and coasts.

Ben Barros

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

August 26, 2009 in Land Use, Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 25, 2009

Kent on Impact Fees as Takings

Michael B. Kent Jr. (John Marshall/Atlanta) has posted Theoretical Tension and Doctrinal Discord: Analyzing Development Impact Fees as Takings on SSRN.  Here's the abstract:

One of the lingering questions about the law of regulatory takings concerns the proper scope and application of the Supreme Court’s exactions jurisprudence, known as the Nollan/Dolan test. A recurring issue in the case law, and of particular importance to this article, is the extent to which the Nollan/Dolan framework applies to takings challenges brought against development impact fees.

By and large, the decisions on the issue split over two primary issues. First, there is a debate about whether Nollan/Dolan is limited to physical exactions or whether the test might also apply to monetary exactions as well. Second, there is a difference of opinion over whether Nollan/Dolan applies only to exactions imposed in an ad hoc, adjudicative manner or also to those that are more broadly-applicable and established legislatively. These questions are important, but the primary emphasis on them has diminished other issues that also require attention. Particularly, there is a need to situate impact fees within the law of local government financing – i.e., determining whether they operate as fees or taxes – which will have some bearing on the proper level of Takings Clause scrutiny to which they should be subjected. Only after wrestling with all of these issues, can one move to the ultimate query of what analytical test is most appropriate.

This article attempts to answer these questions, fit impact fees into the Court’s current takings jurisprudence, propose a new rule of decision for impact fee cases, and demonstrate how that rule might apply to basic factual situations. In short, I demonstrate that impact fees are hybrid animals that occupy a space at the theoretical and doctrinal crossroads of takings jurisprudence, property law, and the rules applicable to municipal finance. Second, in light of this hybrid quality, I propose that takings challenges to impact fees be analyzed under a hybrid framework that combines elements of Nollan/Dolan with the more flexible factor-balancing reserved for the majority of takings cases. Finally, I suggest several larger questions implicated by the impact fee problem that continue to require judicial and scholarly attention.

Ben Barros

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

August 25, 2009 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

McLaughlin & Machlis on Conservation Easements

Nancy A. McLaughlin (Utah) and Mark Benjamin Machlis have posted Protecting the Public Interest and Investment in Conservation: A Response to Professor Korngold's Critique of Conservation Easements on SSRN.  Here's the abstract:

Many who have questioned the use of conservation easements as a land protection tool view such easements primarily through the prism of real property law and as “private” arrangements. This perspective is perhaps understandable given that conservation easements are partial interests in real property and the land protected by conservation easements continues to be owned by private persons. But conservation easements are not simply interests in real property, nor are they accurately described as private. Rather, they are public or charitable assets and their status as such has important legal and policy implications that are often misunderstood or overlooked by critics and would-be reformers. This article discusses five misconceptions that tend to pervade the criticism of conservation easements and result in proposals for reform that would be contrary to the public interest. This article also discusses three of the primary reforms suggested by Professor Korngold in his article, "Solving the Contentious Issues of Private Conservation Easements: Promoting Flexibility for the Future and Engaging the Public Land Use Process," 2007 Utah L. Rev. 1039, and why those reforms would be both unnecessary and inadvisable.

Ben Barros

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

August 25, 2009 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, August 20, 2009

PropertyProf Wanted @ Drake

DRAKE LAW SCHOOL seeks applications for a tenure-track position commencing in the 2010-11 academic year, pending final budget approval.  We are interested in both entry-level and experienced candidates. Teaching needs tentatively include Property and related courses, but candidates with strong credentials with any teaching interest will be considered.  Drake is an equal-opportunity employer and applicants who will contribute to the diversity of the faculty are particularly encouraged to apply.  We seek candidates with J.D. degrees from accredited schools, who exhibit the ability to produce excellent scholarship and become outstanding teachers.  Contact: Professor Jerry L. Anderson, Chair, Faculty Recruitment Committee, Drake Law School, 2507 University Ave., Des Moines, IA 50311 or e-mail: jerry.anderson@drake.edu

August 20, 2009 in Help Wanted | Permalink | Comments (0) | TrackBack (0)

Fennell and Roin on Controlling Residential Stakes

Lee Anne Fennell and Julie Roin (Chicago) have posted Controlling Residential Stakes on SSRN.  Here's the abstract:

Local communities often suffer when residents have too small a stake in their homes — a point underscored by recent rashes of foreclosures and abandonments, and implicated by longstanding questions about the effects on communities of renters and owner-occupants, respectively. However, homeowners with too great a financial stake in their homes can also cause difficulties for local governance by acting as risk-averse NIMBYs. Local governments should have a strong interest in helping members of their communities move away from problematic forms of stakeholding and toward more desirable intermediate positions. This essay examines how and why governmental entities at the state and local levels might regulate or shape the financial stakes that residents have in their homes. We give particular attention to the role local governments may play in facilitating homeowner and tenant access to index-based financial instruments that adjust residential risk-bearing. More radically, we suggest that local governments, assisted by state law, could formulate shared equity arrangements in which local residents hold stakes in the housing markets of surrounding localities as well as in their own jurisdictions.

Ben Barros

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

August 20, 2009 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Lavine on Transparency and Accountability in New York's Industrial Development Agencies

Amy Lavine (Albany) has posted Getting Past the Prisoners' Dilemma: Transparency and Accountability Reforms to Improve New York's Industrial Development Agencies on SSRN.  Here's the abstract:

This paper discusses the pros and cons of New York's Industrial Development Agencies (IDAs), which offer economic development subsidies to attract and retain businesses. IDA reform has become an important public policy issue, and the paper explores some of the reforms that have been proposed, including measures that would: increase monitoring and reporting requirements; make the subsidy award process more objective; increase public participation; heighten ethics requirements for IDA boards; impose penalties for subsidy abuse; make IDAs more accountable to school districts and local governments; and that would improve the environmental and social qualities of IDA projects. The paper concludes that many reforms are warranted, and it suggests that reform supporters should prioritize these accountability and transparency measures. Controversial reforms, such as increased wage requirements and clawbacks, should be modified so as to make them more acceptable to business interests. Compromise proposals might rely on incentives rather than mandates, or include sufficient exceptions.

Ben Barros

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

August 20, 2009 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

PropertyProf Wanted @ Indiana/Indianapolis

INDIANA UNIVERSITY SCHOOL OF LAW-INDIANAPOLIS invites applications from entry-level and experienced candidates for tenure-track and tenured appointments beginning in the 2010-2011 academic year.  The law school seeks colleagues with distinguished academic records who are committed to excellence in teaching, scholarship, and service.  Our curricular needs include Tax, Criminal Law and Procedure, Trusts and Estates, Property, Real Estate Transactions, Professional Responsibility, Corporate Finance, Commercial Law, Administrative Law, and Conflict of Laws.  We are strongly committed to achieving excellence through intellectual diversity and strongly encourage applications from persons of color, women, persons with disabilities, the LGBT community, and members of other groups that are under-represented on university faculties.  The law school is an Equal Opportunity/Affirmative Action Institution and offers domestic partner benefits. For more information about the school, visit h    ttp://indylaw.indiana.edu/.  To apply, contact Gerard N. Magliocca, Chair, Faculty Recruitment Committee, Indiana University School of Law-Indianapolis, 530 West New York Street, Indianapolis, IN 46202-3225; (317) 278-4792; facapps@iupui.edu.  Individuals who require a reasonable accommodation in order to participate in the application process must notify Professor Magliocca a reasonable time in advance.

August 20, 2009 in Help Wanted | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 19, 2009

Mossoff on IP and the Administrative State

Adam Mossoff (George Mason) has posted The Use and Abuse of IP at the Birth of the Administrative State on SSRN.  Here's the abstract:

Courts and commentators have long maintained that intellectual property law and the administrative state developed as two separate legal regimes without any significant theoretical or practical contact between them, at least until recently. This standard historical story is mistaken. This article identifies a long-forgotten nexus between intellectual property law and the birth of the administrative state in the Progressive Era, and in doing so, offers at least two important insights. First, as a matter of intellectual history, it establishes that administrative law and modern intellectual property law share a common theoretical pedigree in legal realist scholarship about property in the Progressive Era. Second, and more important, this article exposes serious theoretical concerns about the success of this scholarship by Felix Cohen, Morris Cohen and others. In justifying the regulation of real property under the administrative state, the Cohens and others used intellectual property rights to advance a scathing conceptual and normative critique of the natural rights theory of property. This critique has now assumed the mantle of conventional wisdom in intellectual property law, as commentators and lawyers dismiss natural rights theory as theoretically incoherent and doctrinally indeterminate. But the legal realists’ attacked a strawman version of the natural rights theory of property, redefining its concept of “value” in unduly narrow economic terms such that it no longer resembled the same theory advanced by the natural rights philosophers or the American courts and commentators who applied their ideas in legal doctrine. This article explicates for the first time the actual premises of the legal realists’ critique of the natural rights theory of property, revealing how they failed to prove either the logical or normative incoherence of this longstanding conception of property. As such, this article exposes a fundamental lacuna in the theoretical foundations of the modern administrative state. Even more important, it challenges the misrepresentations and all-too-hasty dismissals of natural rights theory by intellectual property scholars today.

Ben Barros

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


August 19, 2009 in Intellectual Property, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

PropertyProf Wanted @ Gonzaga

Gonzaga University School of Law seeks applicants for two tenure-track positions.  Areas of teaching need include, but are not limited to, Intellectual Property, Property, Constitutional Law, Criminal Law, Family Law, and Torts.    Applicants should have an outstanding academic record, law practice experience, and be committed to scholarship and teaching excellence.  The law school is strongly committed to diversifying its faculty and furthering Gonzaga’s mission as a Jesuit, Catholic and humanistic institution.  Gonzaga will be interviewing candidates at the AALS Faculty Recruitment Conference on November 6 and 7.  For additional information, contact Professor Gerry Hess, Chair, Faculty Recruitment Committee, Gonzaga University School of Law, P.O. Box 3528, Spokane, Washington 99220-3528, or contact Professor Hess by e-mail at ghess@lawschool.gonzaga.edu.

August 19, 2009 in Help Wanted | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 18, 2009

Call for Papers - 2010 AALS Property Section Mid-Year Meeting

TO:      Teachers and Members of the AALS Sections on Property, Land Use
           Planning, Natural Resources and Real Estate Transactions
 
FROM:   Planning Committee on 2010 Workshop on Property Law: What Do the 
            Mortgage Crisis and the Global Warming Crisis Tell Us About the
            Fundamentals of Property Law?:   
                 
                 Vicki Been, New York University School of Law, Chair 
                 Eduardo Peñalver, Cornell Law School
                 Joseph W. Singer, Harvard Law School
                 Alfred C. Yen, Boston College Law School 
  
Request for Proposals
  
  
We are seeking proposals for two different types of presentations of works in progress on property law. 
 
We are planning the AALS 2010 Mid-Year Meeting Workshop on Property: What do the Mortgage Crisis and the Global Warming Crisis Tell Us About the Fundamentals of Property Law? The Workshop will be held on June 10-11, 2010 at the Sheraton New York in New York City. The Workshop will use the mortgage and housing crisis, as well as the global warming crisis, as lens to explore how recent scholarship on normative theories of property, the burgeoning work on behavioral law and economics, current research on risk regulation, scholarship on race, class and inequality, and recent developments in political economy can advance our understanding of, and approach to teaching about, key issues in property law. While the workshop will feature a variety of panels on those issues, we also would like to offer breakout sessions to feature works in progress, especially by junior scholars. Nestor Davidson and Ben Barros, who have organized a Property Works-in-Progress Conference for the last few years, are likely to take a break for 2010, so we view these breakout sessions as filling the gap left by that break. We will offer two types of breakout sessions - the first will feature works-in-progress that are completed drafts that are ready or nearly ready for submission to journals. We expect each session to feature up to three 15-minute presentations by different scholars, followed by questions from the moderator and the audience. The second will allow scholars to present very early ideas for papers in five to eight minutes, and get feedback from the audience about the viability of the topic and suggestions for useful resources.    
 
Our first priority for works-in-progress that are substantially complete will be for topics that will further the themes of the conference by focusing on some aspect of what the housing and mortgage crisis or global warming crisis tell us about property law or about teaching property. But we will leave room as well for junior scholars to present works in progress on other topics, in the spirit of the Property Works-in-Progress conference. Our goal is to feature promising emerging scholarship regardless of its fit with our overall themes. For the very early works in progress roundtables, our goal is simply to expose junior scholars to helpful feedback, so there will be no subject matter preferences. 
 
Interested faculty should submit a brief (no more than 500 words) written description of the proposed presentation, along with their resume. Please submit these materials by e-mail to property@aals.org by October 30, 2009. Selected speakers will hear from us by December 15, 2009.
 
Those selected must register for the Workshop and pay the registration fee, and are responsible for their own travel and other expenses. Please direct questions to Professor Vicki Been at New York University School of Law, vicki.been@nyu.edu.

August 18, 2009 in Conferences | Permalink | Comments (0) | TrackBack (0)

Lee Fennell's The Unbounded Home

9780300122442 Yale University Press has just released Lee Fennell's book The Unbounded Home.  Here's the publisher's description:

The Unbounded Home grapples with a core metropolitan reality -- that the value and meaning of a home extend beyond its property lines to schools, shops, parks, services, transportation, neighbors, neighborhood aesthetics, and even market conditions. Lee Anne Fennell unpacks the resulting tension between the homeowner’s desire for personal autonomy at home and the impulse to control what happens in surrounding areas to safeguard the home’s value.

 

The stakes are high; this conundrum carries implications for nearly every facet of residential life, including the many neighborhoods in the United States that are segregated by race and social class. Fennell shows how a new understanding of homeownership and  innovations that increase the flexibility of property law can address critical issues of neighborhood control and community composition that have been simmering unresolved for decades.

I've read the book, and it is fantastic.  It is a must-read for anyone interested in (among other things) land use and local government issues.

 

Ben Barros

 

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

August 18, 2009 in Books, Land Use, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (1)

Saxer on RLUIPA's Application to Building Codes and Aesthetic Regulation

Shelley Ross Saxer (Pepperdine) has posted Assessing RLUIPA's Application to Building Codes and Aesthetic Land Use Regulation on SSRN.  Here's the abstract:

This article presents the author’s argument that building codes and aesthetic or historical land use regulations should be subject to scrutiny under the Religious Land Use and Institutionalized Persons Act (RLUIPA). This scrutiny would serve to further the intent of RLUIPA to protect the religious exercise of churches and synagogues against government discrimination in zoning codes and land use regulation, both for established and non-established religious denominations. This scrutiny also ensures that RLUIPA is construed broadly, as was Congress’s intent, to maximize federal constitutional protection of the free exercise of religion. Judicial application of RLUIPA has been varied: while some courts have applied RLUIPA to any local land use regulation impacting religious exercise, others have applied RLUIPA only if there appears to be actual discrimination occurring in the land use regulations scheme. Building codes, as well as aesthetic and historical regulations, are generally designed to ensure that buildings are safe, habitable and appropriate for the community environment, and they may be facially neutral. However, the author argues that they should be closely scrutinized under constitutional principles or RLUIPA guidelines when they are individually applied to burden the fundamental right of free exercise of religion, because arbitrary or discriminatory decision-making cannot be allowed to hide behind the facial neutrality of these codes and regulations.

Ben Barros

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

August 18, 2009 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Katz on Adverse Possession

Larissa M. Katz (Queen's University Ontario) has posted The Moral Paradox of Adverse Possession: Sovereignty and Revolution in Property Law on SSRN.  Here's the abstract:

On what grounds can we justify the transformation of squatters into owners? To understand the moral significance of adverse possession, we need to begin with the proper analogy. Much of the moral analysis of adverse possession has proceeded on the basis that adverse possessors are land-thieves. I will begin here by explaining why the analogy of adverse possessor to land-thief is misleading. Following that, I will argue that there is a much closer analogy between adverse possession and revolution or, more precisely, a bloodless coup d’ état. The recognition of the adverse possessor’s (private) authority solves the moral problem created by an agenda-less object just as the recognition of the existing government’s (public) authority, whatever its origin, solves the moral problem of a state-less people. The morality of adverse possession, seen this way, does not turn on any particularized evaluation of the squatter’s deserts or her uses of the land. I am thus not proposing that adverse possession is justified in the same way that some argue a conscientious revolutionary is justified in resisting an oppressive or otherwise unjust sovereign. Rather, the morality of adverse possession is found where we might least expect it, in its positivist strategy of ratifying the claims to authority of a squatter without regard to the substantive merits of her agenda or her personal virtue.

Ben Barros

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

August 18, 2009 in Recent Scholarship | Permalink | Comments (1) | TrackBack (0)

Thursday, August 13, 2009

Marsh on Blackacre and Widgets: "Rethinking Commercial Real Estate Contract Remedies"

Tanya D. Marsh of Indiana University's Kelley School of Business has just posted "Sometimes Blackacre is a Widget: Rethinking Commercial Real Estate Contract Remedies," on ssrn.  Marsh's abstract is:

This Article argues that the presumption that all land is unique, a principle so embedded in the common law that it is “settled beyond the need for citation,” is wrong. The “uniqueness doctrine” is used to justify granting non-breaching purchasers of real property nearly automatic access to the remedy of specific performance without requiring a wronged party to prove that it has no adequate remedy at law. This powerful common law protection for non-breaching purchasers evolved for a variety of social and economic reasons. This Article makes the case that these historical reasons do not support the applicability of the uniqueness doctrine to modern commercial real estate transactions. Despite the illegitimacy of the uniqueness doctrine, this Article argues that allowing the parties to commercial real estate contracts to bargain for equitable relief is not only desirable, but consistent with legitimate doctrine, practical concerns, and the property rule/liability rule paradigm described by Professors Calabresi and Melamed. The instability of the uniqueness doctrine poses an immediate practical problem – any sudden change would cause significant problems and increased costs for the already-troubled $6.5 trillion American commercial real estate sector. This Article proposes that acknowledging the illegitimacy of the uniqueness doctrine is essential to preserving and enhancing the remedies regime relied upon by the industry.

I think you'll enjoy this. 

Al Brophy

August 13, 2009 in Real Estate Transactions | Permalink | Comments (2) | TrackBack (0)

Ostrow on Telluride and Eminent Domain

Ashira Ostrow (Hofstra) has posted Minority Interests, Majority Politics: A Comment on Richard Collins’ 'Telluride’s Tale of Eminent Domain, Home Rule, and Retroactivity' on SSRN.  Here's the abstract:

In his article, Telluride’s Tale of Eminent Domain, Home Rule, and Retroactivity, Professor Richard Collins skillfully parses many of the unique legal issues that confronted the Colorado Supreme Court in Town of Telluride v. San Miguel Valley Corp. In Town of Telluride the court affirmed Telluride's right to condemn and preserve for open space almost 600 acres of land located outside its geographic boundaries. This Comment, written as part of a Home Rule Symposium, expands on Professor Collins’ article, first, by framing Telluride’s tale of extraterritorial eminent domain through the lens of public choice theory, and, second, by arguing that extraterritorial condemnation, wherein a local government condemns land outside of its own geographic boundaries, necessarily implicates extra-local concerns. I conclude that a state perspective, though subject to its own political process failures, is better able to balance the inter-local and statewide interests at stake in cases of extraterritorial eminent domain.

Ben Barros

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

August 13, 2009 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 11, 2009

Lefcoe on Restraining House Flipping

George Lefcoe (University of Southern California) has posted How 'Spec' Condo and Tract Home Buyers Helped Sink Our Housing and Finance Markets: Should the Alienability of Their Interests Be Restrained by Law? on SSRN.  Here's the abstract:

This paper begins by recounting the extent to which speculating buyers contributed more than proportionately to housing price volatility and the rate of mortgage foreclosure. The second section turns to the way spec buyers deceived mortgage lenders by committing occupancy fraud, claiming falsely that they were buying as owner occupants so they could benefit from more favorable mortgage rates and terms. The third section starts by describing the mischief spec buyers caused home builders and condo developers by signaling phantom housing demand, and degrading ‘for sale’ housing tracts and condo developments by leaving newly bought homes vacant or filling them with short term rentals. The fourth section explores the rationale for a government imposed ban on home flipping. This would be a publicly imposed constraint on alienability.

Ben Barros

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

August 11, 2009 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)