Friday, May 28, 2010

Professor Peter Erlinder Arrested in Rwanda

Forgive me -- I know this does not relate to property law, but I hope you'll agree it's worth the space here under the circumstances. 

William Mitchell College of Law Professor Peter Erlinder, my colleague, is passionately devoted to the protections of due process.  He has devoted his professional life to representing, pro bono, targets of government prosecution, including the least admirable criminal defendants -- the ones no one else will represent.  Without lawyers willing to do that, of course, there can be no due process.  He is currently the lead defense counsel for several Rwandan genocide suspects being tried at the International Criminal Tribunal for Rwanda.

He was arrested in Rwanda today -- apparently on charges of "genocide ideology," by which is apparently meant that he has denied the Rwandan genocide.  Of course, when a zealous advocate represents defendants accused of genocide, he might be expected to deny that what occurred was genocide.  He had entered the country to help defend a current candidate for President in the country's upcoming elections, who had also been arrested for "genocide ideology."  The Rwandan government has also recently barred Human Rights Watch from the country, closed independent newspapers and arrested opposition supporters.

The New York Times and the National Lawyers' Guild, of which Peter is former president, report that he is being interrogated in Rwandan police headquarters. 

It is precisely because we so revile defendants accused of such horrific acts that the work of advocates like Peter Erlinder is so necessary.  Please consider contacting your representatives, asking them to pressure the Rwandan government to release Peter.

Mark Edwards

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May 28, 2010 | Permalink | Comments (29) | TrackBack (0)

Sunday, May 23, 2010

White on Emotion and Strategic Default

Brent T. White (Arizona) has posted Take This House and Shove It: The Emotional Drivers of Strategic Default on SSRN.  Here's the abstract:

An increasingly influential view is that strategic defaulters make a rational choice to default because they have substantial negative equity. This article, which is based upon the personal accounts of over 350 individuals, argues that this depiction of strategic defaulters as rational actors is woefully incomplete. Negative equity alone does not drive many strategic defaulters’ decisions to intentionally stop paying their mortgages. Rather, their decisions to default are driven primarily by emotion – typically anxiety and hopelessness about their financial futures and anger at their lenders’ and the government’s unwillingness to help. If the government and the mortgage industry wish to stem the tide of strategic default, they must address these emotions.

Because emotions are primary, however, principal reductions may not be necessary. Rather, many underwater homeowners simply need some reason to feel less apprehensive about the financial consequences of continuing to pay their underwater mortgages. One possible way to provide this comfort would be a “rent-based loan program,” allowing underwater homeowners to refinance their entire balances to an interest rate that would bring their mortgage payment in line with the rental cost of a comparable home. Indeed, a rent-based approach would relieve many underwater homeowners’ financial anxiety and likely be enough alone to stem the tide of strategic default.

Ben Barros

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May 23, 2010 in Mortgage Crisis, Real Estate Finance, Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Saturday, May 22, 2010

Dagan on the Pluralism of Property

Hanoch Dagan (Tel Aviv) has posted From Independence and Interdependence to the Pluralism of Property on SSRN.  Here's the abstract:

This paper is one chapter of a collection of essays – Property, State, and Community – which will be published with the Oxford University Press in 2011. I discuss in this chapter two recent ambitious attempts to divine the core normative essence of property; relying, respectively, on Kant and Aristotle, one finds property as a castle of independence, the other – as the locus of interdependence. I recognize the normative appeal of these rival theories: independence must be a core value in every humanistic tradition; and our embeddedness in communities is not only an important feature of the human predicament, but also a significant aspect of human flourishing. And yet I show that both theories fail and that their failures are mirror images of one another. Each theory ignores and thus undermines the value emphasized by its counterpart, and this omission also backfires. By refusing to allow interdependence and responsibility to play any role in its conceptualization of property, the property as independence school may end up undermining its own cause by entrenching widespread human dependence. Likewise, by resisting the commitment to legally entrench liberal exit and by insisting that reciprocity should not cap communities’ demands of their members’ contributions, the property as interdependence camp may dilute, rather than fortify, the value of community.

I suggest that rather than trying to extract one regulative principle of the entire terrain of property, we should appreciate the value of the heterogeneity of property's domain. The multiplicity of property institutions is the key to property's normative promise. Property can be the home of both independence and interdependence (and can serve the other property values as well), and thus provide people with valuable options of human flourishing. Only by facilitating such diverse forms of human interaction – different property institutions – can property promote (as it does) the freedom-enhancing value of pluralism and the individuality-enhancing role of multiplicity, which are so crucial to the liberal ideal of justice.

Ben Barros

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May 22, 2010 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Greetings from Prague

I am safely ensconsed in my little apartment in the lovely Mala Strana district of Prague, where the past is most definitely not past.  History breathes through the walls here.  Above me as I type is a wooden ceiling painted in intricate design 300 years ago.  The buildings here are old enough that they were not originally marked by a number, but rather by a design.  Here, for example, is the design that marks the building next to my apartment (I took this picture from my window).  To send a letter to this house in the old days, you would address it to House of the Crowned Geese, Mala Strana, Prague.
And do you think your law school has tradition?  Charles University Faculty of Law was founded in 1348, by King Charles IV.  That's him kneeling before St. Wencelas, patron saint of the Czechs, receiving the charter for the school.  Incidentally, I understand some of the inaugural faculty are still waiting for tenure.

 Pictures from 5-18 to 5-21 016

But of course, some past is even less past: this marks the 65th anniversary of the liberation of Czechoslovakia from its horrific and deadly Nazi occupation, a great moment to be celebrated; but it also marks the beginning of the collective expulsion of ethnic Germans, and the eventual slide into Soviet-style communism, moments that I think are to be mourned (as one law professor wryly explained to me yesterday, under communism Czechs had freedom of speech, but not freedom after speech).  This beautiful society still wrestles with untangling the past, particularly with regard to property.  I interviewed a family whose property was confiscated, in succession, by the Nazis, the Republic, and the Communists.  They are still trying to reclaim it, and there are no easy answers for this amazing country that is both deeply rooted in history and very, very young. 

Much more to come . . . . 

Mark Edwards

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May 22, 2010 | Permalink | Comments (0) | TrackBack (0)

Friday, May 21, 2010

Gentrification and Its Discontents

Benjamin Schwarz has a article called Gentrification and Its Discontents over at the Atlantic, which will be of interest to folks interested in urban spaces.  (H/T Matt Berger).

Ben Barros

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May 21, 2010 in Land Use | Permalink | Comments (0) | TrackBack (0)

Rodriguez-Dod on Protecting Tenants from Foreclosure Evictions

Eloisa C. Rodriguez-Dod (Nova Southeastern) has posted Stop Shutting the Door on Renters: Protecting Tenants from Foreclosure Evictions on SSRN.  Here's the abstract:

This article discusses existing and proposed federal and state law affecting tenants’ rights in foreclosure. As “Foreclosure” signs rapidly join “For Sale” signs across the country, the national foreclosure crisis has not only displaced homeowners, but a plethora of renters as well. The approach taken by states concerning tenants affected by foreclosure varies greatly. Furthermore, a recently enacted federal law, created specifically to help tenants in foreclosure, does not relieve the uncertainty in resolving this issue. In addition to being the first to critique the new federal law, this article offers recommendations for legislation that may better protect tenants from foreclosure-related evictions.

Ben Barros

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May 21, 2010 in Landlord-Tenant, Mortgage Crisis, Real Estate Finance, Real Estate Transactions, Recent Scholarship | Permalink | Comments (1) | TrackBack (0)

Salkin and Lavine on Community Benefits Agreements and Comprehensive Planning

Patricia Salkin and Amy Lavine (Albany) have posted Community Benefits Agreements and Comprehensive Planning: Balancing Community Empowerment and the Police Power on SSRN.  Here's the abstract:

Traditionally, the states have empowered local governments to develop plans and implement regulations for neighborhood and community development. When accomplished at the local or regional level, the interests and benefits of the community as a whole are to be weighed against the detriments to individuals. Much has been studied and written about the lack of meaningful public participation in the planning and land use regulatory process, suggesting that often low-income and minority communities are not fully engaged in the process, even when it may result in decisions negatively impacting their neighborhoods. Case studies have also shown that governments are sometimes so eager to stimulate local economic development that they fail to fully engage communities in the project review process, both to expedite development and to avoid confronting local opposition. This emphasis on short-term economic growth, however, may obscure a local government’s perception of the social and environmental needs of particular communities. When this occurs, formal planning processes have failed to accomplish their goals of engaging community members and guiding future growth in a manner that maximizes long-term benefits for the common good.

New approaches to planning provide one response to systemic public participation problems. The environmental justice movement, for example, has sought to ensure a fair distribution of both environmental burdens and environmental goods by requiring local governments to make meaningful public participation available to all community members. Community based planning efforts have attempted to improve the planning process by focusing on small and distinct geographic areas and by developing collaborative and inclusive planning programs. Since the late 1990s, community benefits agreements (CBAs) have offered another method to increase community input in the development planning and review process. For communities that have historically been excluded from the planning process, CBAs can be a powerful tool to ensure that neighborhood interests are addressed as an integral component of development. The result, ideally, is growth and development that is accountable to the people it affects and equitable in its distribution of benefits and burdens. However, the people it affects are often a small subset of the municipal jurisdiction and the equitable distribution sought in the CBAs is limited to the proposed project area.

This article explores how the comprehensive planning process and CBAs complement and contradict each other, and how both could be improved by innovative and more inclusive planning techniques. Part II provides a brief historical background on comprehensive planning and community development, including issues relating to community planning and public participation. Part III examines CBAs and their role in community empowerment, community development and the promotion of social justice principles, including equitable development. This part also provides examples of typical land use related elements found in existing CBAs. Using these examples, Part IV segues into a discussion regarding whether private CBAs usurp the public planning process. The section explores whether CBAs are just another type of community based plan and whether CBAs advance narrow interests at the expense of the larger community. The question of what local governments should do when presented with a CBA that is inconsistent with the local comprehensive land use plan is examined to determine whether amending the plan to incorporate the community vision as articulated through the CBA is appropriate. The article concludes in Part V by pointing out that shortcomings of the current regulatory system allow local governments, intentionally or inadvertently, to exclude robust public participation from the development and implementation of comprehensive land use plans. This provides the impetus for privately negotiated CBAs, but these agreements may not always be ideal because not all parties to a CBA will have the best interests of the neighborhood or the community as a whole at the forefront of their agendas. While many CBAs have been successful, a number of case studies also reveal pitfalls in the process. The article concludes with the belief that local governments must be more inclusive and accountable in the public planning process to better meet the true goals of the community benefits movement.

Ben Barros

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May 21, 2010 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Bronin on Curbing Energy Sprawl

Sara C. Bronin (UConn) has posted Curbing Energy Sprawl on SSRN.  Here's the abstract:

Energy sprawl - the phenomenon of ever-increasing consumption of land, particularly in rural areas, required to site energy generation facilities - is a real and growing problem. Over the next twenty years, at least sixty-seven million acres of land will have been developed for energy projects, destroying wildlife habitats and fragmenting landscapes. According to one influential report, even renewable energy projects - especially large-scale projects that require large-scale transmission and distribution infrastructure - contribute to energy sprawl. This Article does not aim to stop large-scale renewable energy projects or even argue that policymakers focus solely on land use in determining whether energy projects are allowed to proceed.

Rather, it proposes that we advance the legal institutions necessary to facilitate one possible solution to energy sprawl: the alternative energy microgrid - that is, small-scale distributed generation between neighbors of energy derived from sources such as solar collectors, wind power systems, microturbines, geothermal wells, and fuel cells. Microgrids are attractive from a public policy perspective. They decentralize energy production, reducing the need for massive transmission lines and large centralized plants. They allow property owners to achieve economies of scale by spreading the costs and the risk of installation and maintenance among many parties. They provide cleaner alternatives to conventional energy methods of production. And they improve system efficiencies by reducing the amount of energy lost during transmission across long distances to end users.

Despite such benefits, regulatory, political, and economic barriers thwart microgrids. For example, state laws prohibit or severely limit their viability, while neighbors may object to living nearby. This Article offers three proposals to address such barriers. First, Congress should require states to consider a model standard for microgrids, just as it has required states to consider model standards in other areas of utility law. Second, states should provide guidance to localities with respect to siting and permitting microgrid projects. Third, states should develop and authorize legal institutions that would support microgrid projects, drawing from Professor Robert Ellickson’s proposal for block improvement districts, which accommodate the public-private nature of shared energy. Together, these proposals would support small-scale energy sharing collectives whose emergence could transform the American landscape.

Ben Barros

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May 21, 2010 in Land Use, Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Harris on Recourse and Non-Recourse Mortgages

Ron Harris (Tel Aviv) has posted Recourse and Non-Recourse Mortgages: Foreclosure, Bankruptcy, Policy on SSRN.  Here's the abstract:

The recourse-non-recourse dimension is fundamental in any loan as it deals most directly with the pool of assets out of which lender can collect at delinquency and default. This paper calls attention to an exceptional feature of the American home mortgage market, compared to mortgage markets elsewhere in the world, the prevalence of non-recourse mortgages as created by foreclosure rules in leading states such as California and Arizona and federal bankruptcy law. It explains how the legal impediments on recourse to personal assets and future income, together with the recent drop in home prices, led to a dramatic rise in strategic foreclosures (ones that resulted from negative equity rather than from cash-flow problems). No less than 588,000 strategic walk-away mortgage defaults took place, representing nearly 20% of all foreclosures in 2008. Most of these were not likely to happen in a recourse regime.

The paper then deals with policy. It uses a few theoretical frameworks: put option, default insurance, asset partitioning and screening. It examines the pros and cons of recourse regime and of non-recourse regime. It concludes that there is no compelling justification for prohibiting either recourse or non-recourse loans. The benefits and pitfalls of a dual regime are then examined. The question relating to why we don't observe a dual regime in the real world is addressed. The paper recommends that jurisdictions that prohibit recourse loans lift this prohibition. It concludes that both recourse and non-recourse should be on the table, on the levels of regulation policy and lending practices.

Ben Barros

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May 21, 2010 in Mortgage Crisis, Real Estate Finance, Real Estate Transactions, Recent Scholarship | Permalink | Comments (2) | TrackBack (0)

Monday, May 17, 2010

Most Cited Property Scholars

Brian Leiter has posted the most recent iteration of his scholarly impact study, which includes list of the most cited Property scholars.  Professor Leiter provides a good amount of detail on his methodology, but the most important thing to note is that this is a study of citations within the last five years, not overall citation.





Total Articles Citing Name

Age in 2010


Robert Ellickson

Yale University




Carol Rose

University of Arizona




Michael Heller

Columbia University




Joseph William Singer

Harvard University




Henry Smith

Harvard University



Stewart Sterk

Cardozo Law School/Yeshiva University




Vicki Been

New York University




Gregory S. Alexander

Cornell University



Lee Fennell

University of Chicago



Lior Strahilevitz

University of Chicago



Runner-up for the top ten

David Callies

University of Hawaii



Nicole Stelle Garnett

University of Notre Dame



Eduardo Penalver

Cornell University



Michael Schill

University of Chicago



Steven Eagle

George Mason University



Highly Cited Scholars Whose Cites Are Not Exclusively in This Area

Thomas Merrill

Columbia University



Margaret Jane Radin

University of Michigan



Gideon Parchomovsky

University of Pennnsylvania (half-time)



James Krier

University of Michigan



Abraham Bell

University of San Diego (half-time)



Ben Barros

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May 17, 2010 in Law Schools | Permalink | Comments (5) | TrackBack (0)

Ely on Stevens, Kagan, and Property Rights

James W. Ely Jr. (Vanderbilt) has a column in today's Washington Times titled Stevens, Kagan and property rights. (H/T Ilya Somin).  Ely remarks that "Justice Stevens consistently dismissed property rights claims and voted to strengthen government control over the lives of individuals," and goes on to discuss Stevens' positions in regulatory takings and public use cases.  At least since the mid-1980s, Stevens has certainly been the leader of the pro-government wing of the Court on takings cases, and he has written some of what are (in my humble opinion) the worst regulatory takings opinions in recent memory.  Even though the ultimate holdings in Keystone and Tahoe Sierra are probably correct (especially because both were facial challenges), Stevens' majority opinions in each are terrible, as was his dissent in Lucas.  This said, there is one passage in Ely's op-ed that strikes me as misleading:

In Kelo, Justice Stevens virtually eviscerated the public use limitation of the Fifth Amendment at the federal level. Under his reading of public use, legislators appear to have almost unlimited power to take homes and businesses for economic development. The beneficiaries likely will be corporations and others with political clout. In practice, developers and local officials often work in tandem to eliminate neighborhoods and displace residents in order to achieve hypothetical economic gains.

While I'm not a big fan of Kelo, I don't think it is true that Justice Stevens eviscerated the public use limitation - the Supreme Court as a whole eviscerated it in unanimous opinions in Berman and Midkiff.  I've never seen a convincing argument why the result in Kelo was not mandated by Berman and Midkiff.  So it seems unfair to place all of the blame on Stevens.

It will be very interesting to see what happens with the Court's liberal wing on takings cases after Stevens' departure.  Stevens has so dominated this area that it is hard to pin down exactly where Justices Ginsburg and Breyer stand -- sure, we have their votes, but I can't recall either writing an opinion in a takings case.  Justice Sotomayor and potential Justice Kagan are relatively blank slates on regulatory takings issues.  It may be that this issue has become so ideological that the liberals will consistently vote against property owners.  On the other hand, there is good reason to think that the liberals may be sympathetic to property owners in at least some contexts.  After all, Justice Brennan wrote what is probably the most pro-property-owner opinion in any takings case (his dissent in San Diego Gas & Electric).  We might get a preview of what is to come when the Court decides Stop the Beach sometime in the next couple of weeks.  Because Justice Stevens recused himself, the Court's liberal wing won't be able to follow his lead.

Ben Barros

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May 17, 2010 in Takings | Permalink | Comments (2) | TrackBack (0)

Saturday, May 15, 2010

Off to Prague

On Tuesday I leave for Prague, where I'll be teaching my Comparative Property Rights course to American students at the Charles University Faculty of Law.  I'll continue posting from Prague where, in addition to teaching, I'll be doing some researching and writing. I'm very excited because Prague is the ideal setting to teach and research comparative property rights issues, since Czech property rights have undergone several radical transformations in quick succession.

As I discovered when I created my Comparative Property Rights course, it turns out there is no casebook or or single text available for the course.  Therefore, I've had to create one.  This summer, the five topics we'll examine are (1) colonial compared to indigenous property rights; (2) property rights under civil law compared to common law; (3) property rights under communist systems compared to capitalist systems; (4) comparative constitutional protections of property rights; and (5) my personal favorite, restitution.  I've compiled a series of readings -- cases, excerpts from law review articles and books, etc. -- for each topic.  In addition, I've written a series of what I call 'focus questions' to guide the students through the reading and to center class discussions.

If anyone is considering teaching a comparative property rights course and would like the syllabus for any of those topics, send me an email (mark(dot)edwards at wmitchell(dot)edu).  There's no point in reinventing the wheel when the prior art is available although, of course, you may find that my wheel is square and has the spokes sticking out sideways, to beat a metaphor beyond recognition.

My next post will be from Prague!

Mark Edwards

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May 15, 2010 in Teaching | Permalink | Comments (0) | TrackBack (0)

Monday, May 10, 2010

The Human Face of the Foreclosure Endgame

David Streitfeld had a fascinating and sobering piece in the New York Times this week, chronicling a day in the life of Joseph Laubinger, in essence a foreclosure 'fixer' who represents lenders in their last interactions with former homeowners still in actual possession of their homes before the sheriff arrives.  Laubinger's business has a simple goal but a complex task: getting foreclosed owners out as seamlessly as possible.  He gets a fee for getting the possessors out, and then gets to earn a commission by selling the house.  He comes face to face with the pain caused by the foreclosure crisis, and lest we forget, there is real, gut-wrenching human pain.

It's a somber job, and Laubinger is anything but cavalier; he is described in the article as "a soft touch," and regularly gives people in trouble extensions so they can find somewhere else to go rather than being rendered homeless.  On the day Streitfeld followed him, Laubinger encountered the Lukaszs, a young Polish couple in default on two loans secured by a modest home that they've been unable to sell for what they owe.  What did them in, like many others, was that Mrs. Lukasz became chronically and painfully ill; Mr. Lukasz's salary from working night shift at an envelope factory could cover the loan payments, or the pharmacy bills, but not both.  Enter Mr. Laubinger.  Mr. Lukasz agreed to accept $1500 to move out without a sheriff's eviction, but later changed his mind, deciding to stay until the last possible moment.  Another family of six encountered that day end up sheltered by their church.

Laubinger, to his credit, seems to treat these people with compassion.  The Lukasz's situation left him in tears.  In some strange and convoluted way, Mr. Laubinger's role and demeanor remind me of the great Bruno Ganz's angel of death in Wim Wender's breathtaking Wings of Desire, unable to prevent death but able to usher the victims out with some comfort. On the other hand, foreclosure isn't death, and angels don't have a profit motive.

Mark Edwards

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May 10, 2010 in Home and Housing, Mortgage Crisis, Real Estate Transactions | Permalink | Comments (2) | TrackBack (0)

Arruñada and Lehavi on New Models for Residential Development and Fiance

Benito Arruñada (Universitat Pompeu Fabra) and Amnon Lehavi (Interdisciplinary Center Herzliyah - Radzyner School of Law) have posted Prime Property Institutions for a Subprime Era: Exploring Innovative Models of Residential Development and Finance on SSRN.  Here's the abstract:

This paper breaks new ground toward contractual and institutional innovation in models of homeownership, equity building, and mortgage enforcement. Inspired by recent developments in the affordable housing sector and in other types of public financing schemes, this paper suggests extending institutional and financial strategies such as time- and place-based division of property rights, conditional subsidies, and credit mediation to alleviate the systemic risks of mortgage foreclosure. Alongside a for-profit shared equity scheme that would be led by local governments, we also outline a private market shared equity model, one of bootstrapping home buying with purchase options.

Ben Barros

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May 10, 2010 in Home and Housing, Mortgage Crisis, Real Estate Finance, Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, May 7, 2010

Cert Petition in Just Compensation Case

Ilya Somin at the VC has a post describing a cert petition in a potentially important Just Compensation case, City of Milwaukee Post No. 2874, Veterans of Foreign Wars v. Redevelopment Authority of the City of Milwaukee.  The case involves the "undivided fee" rule, which can lead to gross undercompensation of holders of under-market leases.  Gideon Kanner has a post on the case, as does Robert Thomas at the Inverse Condemnation Blog.

Ben Barros

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May 7, 2010 in Takings | Permalink | Comments (0) | TrackBack (0)

Eminent Domain and the Political Process

Can the political process protect property owners from the use of eminent domain?  Consider this story from Fox News:

Officials in Auburn, New York threatened to possibly use eminent domain to force property owners to sell their land so a developer could build a multi-million dollar hotel and conference center. But in a surprise vote, the Auburn Industrial Development Agency unanimously voted not to use eminent domain by a vote of 9 to 0.

As negotiations continued with three property owners over the past several months, it appeared that Auburn would have to resort to eminent domain to clear the way for the proposed 88 room, $11 million hotel and conference center. City officials said the hotel would bring jobs, new tax revenue, and improve the city, which is located in upstate New York, as it plans to launch a music festival in two years.

There was at least one hold out, Mike Kazanivsky, who owns a barren grass strewn lot that he says he bought to build a small miniature golf and ice cream amusement park. When we stood on his property two weeks ago, he wept at the thought that he could be forced to sell his land for a private project. . . .

He insists he does not want to sell his plot of land.

“Everyone kept saying you have to put a figure on it, you have to put a figure on it. How do you put a figure on something you don’t want to sell?”

He insisted “I never wanted to stop progress, but I didn’t want them to take this from me.” . . .

So, to recap, the city proposes taking property through eminent domain, then backs off after the issue becomes controversial.  So, in at least one case, the political process did protect the property owner.  But the plural of anecdote is not data - the political process worked in this case, but might not in others.

(H/T Erika Lauer)

Ben Barros

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May 7, 2010 in Takings | Permalink | Comments (1) | TrackBack (0)

Monday, May 3, 2010

The Horcrux Theory of Property

Among the several thousand articles I'm allegedly writing is one tentatively entitled The Horcrux Theory of Property.  A confluence of events and ideas this week has prompted me to write about it here, but first a little background.  For those of you without kids or who aren't otherwise Harry Potter fans -- as a parent of three young kids I can tell you far more about 'Dobby the House Elf' then I'd care to admit -- a horcrux is a magical object that contains a part of a person's soul.  The idea that some object of property might contain part of a person's -- or a people's  -- soul has been much on my mind lately because of (a) a case I taught, (b) two great articles I recently read, and (c) a short story that has haunted me for some time.

First, the case.  I devote my last property class of the semester to Kelo.  Like the general public, most students find the decision disturbing.  And following the Court's lead, the debate tends to revolve around the meaning of 'public use' within the 5th Amendment.  But here's a series of questions I pose to my students:

Be honest: what is that you find most troubling about Kelo?  Is it that the property taken was given to another private landowner?  Would you be untroubled if, instead, the property taken had been turned into a public dump?  Or would public ownership of the dump not satisfy you?  Isn’t what really galls you that a little old lady was forced from the home she was born in, had always lived in, and wanted to die in?  Let’s have a show of hands.

The result is always the same.  I suspect, dear reader, that the result is the same for you:  If we’re honest, the issue isn’t who owns the property taken; it’s that some property should never be taken.  Why, then, is the focus of debate and uproar and political fallout over Kelo the meaning of ‘public use’?

Here’s why, I think: Kelo strikes a nerve we don't have a very good name for; indeed, that we have refused to acknowledge as a matter of law. The nerve I think was touched by Kelo was, of course, famously identified by Margaret Jane Radin in, among other works, Reinterpreting Property .  As Radin explained, some property becomes so bound up with the self -- so essential to our identity -- that it is no more fungible than we ourselves are.  As J.K. Rowling might describe it, it has become a horcrux: it contains a part of the soul. 

[continued, with links to a couple of great articles, so keep reading!]

Continue reading

May 3, 2010 | Permalink | Comments (0) | TrackBack (0)

White on the Morality of Strategic Default

Brent T. White (Arizona) has posted Beyond Guilt in the Housing Crisis: The Morality of Strategic Default on SSRN.  Here's the abstract:

Responding to those who argue that homeowners who strategically default on their mortgages are immoral and socially irresponsible, this article argues that breaching a mortgage contract is not only morally acceptable, it may be the most responsible course of action when necessary to fulfill more important obligations to one’s family.

Ben Barros

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May 3, 2010 in Mortgage Crisis, Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)