PropertyProf Blog

Confessions of a Black Gentrifier

Shani Hilton has a piece in the Washington City Paper that's generated a lot of discussion in blog-world.  She highlights how her experience as a black gentrifier both overlaps with and remains distinct from the experience of white newcomers:

Crack cocaine hit D.C. and many black people with money—like most people with money would—headed to the suburbs. Those who couldn’t leave, and those who stayed to fight, had a ravaged city to contend with. This is the story we know.

But now, living in the city is cool again, thanks in no small part to development incentivized by government investment. And because we live in a “nation of cowards” (as U.S. Attorney General Eric Holder put it) where perhaps the only thing harder to talk about than race is class, it’s unsurprising that worries about gentrification boil down to white versus black, instead of educated and privileged versus uneducated and underserved.

That’s not to say that what we talk about when we talk about gentrification has nothing to do with race. The opposite is clearly true. White people don’t just “happen” to be better off, in general, than blacks. There’s systemic injustice that’s obviously based in racism. But instead of using that knowledge to spark a discussion about larger societal issues, there’s just pearl-clutching aplenty about the color of the new faces in the neighborhood.

Steve Clowney

Menashi on Property Rights, Christian Ethics, and Locke

Steven Menashi has posted Cain as His Brother’s Keeper: Property Rights and Christian Ethics in Locke's Two Treatises of Government (Seton Hall Law Review) on SSRN.  Here's the abstract:

Those scholars who regard Locke’s theory of property as a reflection of conventional Christian views pay insufficient attention to the deliberate rhetorical method of his Two Treatises of Government. Close attention to the text reveals profound criticisms of prevailing Christian doctrine. In fact, Locke’s theory of property forms the core of a moral theory that aims to supplant traditional religious teaching with an ethic of human industry and individual autonomy. Understanding Locke’s intention illuminates the foundations of American constitutionalism and of modern liberalism.

Steve Clowney

Iglesias on the FHA and Private Residential Occupancy Standards

Tim Iglesias (U. San Francisco) has posted Moving Beyond the Two-Person-Per-Bedroom: Revitalizing Application of the Federal Fair Housing Act to Private Residential Occupancy Standards on SSRN.  Here's the abstract:

New empirical evidence demonstrates that the common residential occupancy standard of two-persons-per-bedroom substantially limits the housing choices of many thousands of families, especially Latinos, Asians and extended families. The federal Fair Housing Act makes overly restrictive policies illegal, but the enforcement practices of the U.S. Department of Housing and Urban Development (HUD) have enabled the two-persons-per-bedroom standard to become de facto law. This article urges HUD to use its regulatory authority to remedy the situation and offers several solutions. And, if HUD fails to act, it encourages private plaintiffs to challenge the two-persons-per-bedroom standard and provides guidance to courts in deciding these cases.

Ben Barros

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

Strand on Inheriting Inequality

Palma Joy Strand (Creighton) has posted Inheriting Inequality: Wealth, Race, and the Laws of Succession on SSRN.  Here's the abstract:

The article begins by documenting deep inequality in the form of Black-White wealth disparities: While the overall wealth distribution in the United States is highly unequal from both historical and international perspectives, racial wealth disparities are particularly acute, with median Black net worth approximately a tenth of median White net worth (as compared to median Black income that is approximately two-thirds of median White income). Next, the article ties the perpetuation of this inequality to current inheritance law. It then confronts this inequality as a civil rights issue in terms of its social effects, its historical causes, and legal avenues for attacking it. Finally, the article proposes two changes in our laws of succession to address this contemporary manifestation of White advantage and Black disadvantage. First, the article explains how civil rights considerations support existing proposals that inheritances be taxed as windfall income to those who receive them (as are lottery winnings currently). Second, the article identifies a need for revising intestacy law to provide heirs with clear title to assets, especially homes belonging to families of modest wealth whose wealth is primarily the value of those homes.

 

Ben Barros

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

The Rise of the Israeli Legal Academic: America 1, Israel 0

I spent a few hours last night trying to build a friendship with the work of Hanoch Dagan.  As one drink melted into three, the reading got me to thinking about the substantial impact that Israeli academics have made on the American legal academy. Property theory in particular, through the work of scholars like Dagan and Amnon Lehavi, has been well-pollinated with ideas from the Holy Land. 

In my mind, this wave of Israelis studying in American LLM programs, arguing about American case law, and writing in American law journals has certainly benefited the USA.  I wonder, however, about the effect of these developments on Israel.  What happens when the brain trust of a nation consistently grapples with another country’s legal problems?

The answer, I think, isn’t pretty.  We’ve already seen this play out in the U.S. – as law professors have moved to speak to a broader national audience, they’ve largely ignored municipal & state problems, and surrendered their relationships with the local bar.  Moreover, there seems a real danger that Israeli academics who have enmeshed themselves in American legal norms, may try to export ideas that will germinate in strange ways back on their native soil. 

The depressing reality is that there doesn’t appear to be any easy way, either here or abroad, to reverse this collective action problem.  Everyone just “knows” that it’s better to publish an article on constitutional theory in the Harvard Law Review than it is write a piece on Kentucky’s taxation of unmined coal, even if the latter issue affects the lives of way more people.  How to reverse the trend?  Perhaps public universities need to take the lead by requiring new professors to engage with one state or local issue before going up for tenure.  Maybe Israeli universities should give bonus money for scholars that write on Israeli-specific issues.  The fate of communities, and even nations, may be at stake.      

 Steve Clowney

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

Lind on Public Nuisance Law and Bank-Owned Housing

Kermit Lind (Cleveland State) has posted Can Public Nuisance Law Protect Your Neighborhood from Big Banks? (Suffolk Law Review) on SSRN.  Here's the abstract:

One manifestation of the mortgage crisis of the past decade is the destabilization of housing markets and neighborhoods where mortgage defaults were concentrated. As banks and their mortgage servicers employ business practices that result in banks or their agents controlling or owning vacant dwellings, the noncompliance with housing and other municipal codes by these institutional absentee owners presents neighborhoods and cities with a huge and costly public nuisance problem.

This article explores both the theory of public nuisance law and the experience of applying nuisance law in practice to mitigate the harmful consequences of bank debt collection and REO management. It looks at how and to what extent public nuisance law provides protection for those non-defaulting homeowners whose health, safety and welfare are threatened by the business practices of big banks. It compares litigation that applies public nuisance law in different ways to distinguish viable uses from unsuccessful uses of public nuisance law doctrine. The recent efforts to use public nuisance law against manufacturers and marketers of harmful products like guns and tobacco are distinguished from the application of public nuisance law against owners of real estate maintenance deficiencies are in violation of laws protecting the public health, safety and welfare.

Steve Clowney

Leaving the Barn Door Open

It's bad to close the barn door after the horse is gone.  But it's just as bad to fill the barn back up with horses, then reassure everyone that it is now secure, because the barn door is only open wide enough for the horses to escape in single file.  That's what the FDIC appears to be ready to do with regard to mortgage-backed securities.

According to the New York Times, the FDIC is about to adopt rules that would go a long way to correcting some systemically catastrophic faults in the securitization business.  For that, they deserve praise (and I should point out, the FDIC under the admirable Sheila Bair has truly been a stand-up force throughout this mess).  But going a long way is like closing the barn door most of the way -- it doesn't help much if the horses can still slip through.

Frequent readers here might remember that I've argued several times that the single most effective way to reform the MBS industry is to require loan originators to retain a certain percentage of the loans they make, and to choose those retained randomly.  I've suggested 20% be retained in-house, randomly chosen. The MBS industry can thrive, providing liquidity for the residential market, but originators are bound to the risk of the loans they originate, which creates every incentive for them to lend wisely.

The proposed FDIC rules, thankfully, adopt that very principle -- but then gut it in the details.

Rather than a simple percentage rule with randomized selection for the retained loans, under the proposed rules,

• high quality loans are exempt from the risk retention pool, off-the-top;
• only 5% of the risk from mortgage-backed securities derived from lower quality of loans that make up the risk retention pool must be retained;
• the risk can be split among the loan originator, loan aggregators, and loan securitizers -- that effectively reduces the risk to any of them well below the 5% line;
• the lenders have considerable flexibility in choosing their method of exposure to the 5% risk -- either by retaining a 5% exposure in all securitizations, or retaining a representative sample of loans in-house equivalent to a 5% exposure -- but the proposed rules do not specify a mechanism by which the 5% are selected or determined to be 'representative.'   

The proposed rules do not do enough, in my opinion, to make sure that the risk retained by originators is of sufficient quantity and quality to incentivize them to make only sensible loans.  Under the system that crashed the U.S. economy in 2008, lenders could reap the benefit of originating all loans, since the cost of originating bad ones was externalized to the usually uninformed holders of MBSs.  There are lots of potential ways of reforming the system, but none is as clean and efficient as requiring that a substantial portion (I still say 20%, as is required in Canada, which did not suffer an MBS crash) of risk is retained in-house, and that percentage is chosen randomly.  That system requires relatively little oversight, and no wiggle room for escape.

The proposed rules don't leave the barn door open as much as they might have, but closing it 2/3rds of the way doesn't help much if the horses can still get out.

There will be a comment period after the proposed rules are announced.  I hope to submit some, and I'd like to hear yours.

Mark A. Edwards

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

50 Years of Urban Planning Histroy in 6 frames

This 1998 cartoon from Tom Toles has been making the rounds through the intertubes:

Steve Clowney

(Image found with creative commons search tool.  For more of Toles' work, see here. Hat Tip, Matt Yglesias)

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

Gold and Sagalyn on Blight

Martin Gold (Sidley Austin) and Lynne Sagalyn (Columbia Business) have posted The Use and Abuse of Blight in Eminent Domain (Fordham Urban Law Journal) on SSRN.  Here's the abstract:

Blight findings have functioned as a cornerstone for condemnation since the great urban decline of the mid-twentieth century prompted governments at all levels throughout the country to intervene in the real estate market. Elements of blight, and then the term itself, became a basis for this intervention. But the use of blight as a basis for takings has become increasingly controversial as its application has migrated from slum clearance to urban renewal, then to economic development projects, and on to revenue-enhancing projects. And, at the same time, the definition has been expanded to give government greater and greater latitude. Immediately following the largely negative reaction to the U.S. Supreme Court decision in Kelo vs. City of New London, home owners, business activists and state politicians sought "reform" to their state’s eminent domain statutes. One of the most important items on the agenda was the use and abuse of blight.

In this paper, we take a close look at the issue. We briefly describe the origins of the use of the term and discuss how, in the absence of a clear, unambiguous definition, the eminent domain statutes of the nation’s fifty states describe blight through locally developed definitions and criteria which are complicated and diverse. Even prior to Kelo, several states enacted reforms aimed at curbing abuses arising from their blight criteria, but these reforms did not change the character of the definition or the highly subjective aspects of its application. Eminent domain is a balance between government and public needs on the one hand and property owner rights on the other. As a means of evaluating the use of eminent domain and blight findings, we lay out a hierarchy for projects in which the level of public benefits is compared with the level of private benefits. Where a particular eminent domain taking falls along our spectrum will depend upon its ratio of public benefits to private benefits.

In addressing abuses in the use of blight criteria, we look at the reforms made in the post-Kelo era. Although forty-three states enacted Post Kelo reforms, clashing political and business forces failed to check the permissiveness under which private property in most states can still be condemned as "blighted." So we turn our attention to the creation of a better definition and criteria. We focus on two major reforms: the elimination of the most abused criteria and the use of quantification. Believing, as we do, that there are clear and compelling reasons for using the power of eminent domain for public purposes (and not just pure public use) our purpose is to see established thoughtfully crafted, objective and measurable, standards for the determination of blight.

 Steve Clowney

Parking Meters for Sale

Slate has a good article about the temptation to privatize America's infrastructure:

[A] 2008 GAO report looked at the privatizations of the Indiana Toll Road and the Chicago Skyway. It found many benefits to these deals, including the availability of cash upfront and the transfer of both operating and financial risks to the private sector. But it also warned that these deals could result in a loss of long-term value—stealing from the future to pay bills today. The GAO also noted that the United States failed to emulate Europe's example of employing a systematic, standardized set of procedures to make sure that such important considerations were taken into account—and that debate would be held in public.

Steve Clowney

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

The Cost of Urban Water

An interactive map that shows the cost of water in cities aroung the world, both in raw terms and as a percentage of GDP.  It's pretty amazing that water is cheaper in El Paso and Las Vegas than it is in New York.

Steve Clowney

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

Penalver and Strahilevitz on Judicial Takings

Eduardo Penalver (Cornell) and Lior Strahilevitz (Chicago) have posted Judicial Takings or Due Process? on SSRN.  Here's the abstract:

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, 130 S. Ct. 2592 (2010), a plurality of the Supreme Court concluded that the Takings Clause of the United States Constitution prohibits the judiciary from declaring that “what was once an established right of private property no longer exists” unless the property owner in question receives just compensation. In this paper, we delineate the boundaries between a judicial taking and a violation of the Constitution’s due process protections. The result is a judicial takings doctrine that is narrower and more coherent than the one suggested by Stop the Beach.

Our argument proceeds in two parts. The first is a conceptual section that explains what factors are relevant to determining whether a judicial action diminishing a private property interest is a judicial taking or something else. In our view, where a judicial decision intentionally seizes private property in order to achieve a legitimate public end, the Takings Clause is an appropriate framework for evaluating the constitutionality of the state’s action. Due Process is the more appropriate doctrinal pathway where the judiciary does not intend to abrogate a private owner’s property rights, or where the diminution of private property rights results from a judicial action that serves no legitimate public purpose. By clarifying the boundaries of judicial takings, we also hope to shed light on the constitutional foundation for numerous state-court doctrines concerning the retroactivity of new property rules. The second section articulates a novel functional argument, which suggests that creating liability for judicial takings may cause litigants to underinvest in high quality legal representation, which will in turn increase the likelihood of judicial mistakes and contribute to the destabilization of existing entitlements. This phenomenon prompts us to argue that cases in which the underinvestment incentives are most pronounced should be litigated under the Due Process Clause, but cases where repeat-play or the government’s involvement as a litigant mitigates the underinvestment problem represent more appropriate vehicles for judicial takings treatment. What rides on the distinction between judicial takings and due process violations? Under our approach, judicial takings cases should be (a) easier to win than due process cases, (b) more likely to result in damages remedies than injunctive remedies, and (c) may lend themselves to attractive “comparative fault” inspired solutions.

Steve Clowney

Foster on Collective Action and the Urban Commons

Shelia Foster (Fordham) has posted Collective Action and the Urban Commons (Notre Dame Law Review) on SS RN.  Here's the abstract:

Urban residents share access to a number of local resources in which they have a common stake. These resources range from local streets and parks to public spaces to a variety of shared neighborhood amenities. Collectively shared urban resources suffer from the same rivalry and free-riding problems that Garrett Hardin described in his Tragedy of the Commons tale. Scholars have not yet worked up a theory about how this tragedy unfolds in the urban context, particularly in light of existing government regulation and control of common urban 
. This Article argues that the tragedy of the urban commons unfolds during periods of “regulatory slippage” - when the level of local government oversight and management of the resource significantly declines, leaving the resource vulnerable to expanded access by competing users and uses. Overuse or unrestrained competition in the use of these resources can quickly lead to congestion, rivalry and resource degradation. Tales abound in cities across the country of streets, parks, and vacant land that were once thriving urban spaces but have become overrun, dirty, prone to criminal activity, and virtually abandoned by most users.

Proposed solutions to the rivalry, congestion and degradation that afflict common urban resources typically track the traditional public-private dichotomy of governance approaches. These solutions propose either a more assertive central government role or privatization of the resource. Neither of these proposed solutions has taken root, I argue, because of the potential costs that each carry - costs to the local government during times of fiscal strain, costs to communities where the majority of residents are non-property owners, and costs to internal community governance. What has taken root, however, are various forms of cooperative management regimes by groups of users. Despite the robust literature on self-organized management of natural resources, scholars have largely ignored collective action in the urban context. In fact, many urban scholars have assumed that collective action is unlikely in urban communities where social disorder exists.

This Article highlights the ways in which common urban resources are being managed by groups of users in the absence of government coercion or management and without transferring ownership into private hands. This collective action occurs in the shadow of continued state and local government ownership and oversight of the resources. Formally, although the state continues to hold the regulatory reigns, in practice we see the public role shifting away from a centralized governmental role to what I call an “enabling” one in which state and local government provides incentives and lend support to private actors who are able to overcome free-riding and coordination problems to manage collective resources. This Article develops this enabling role, marks its contours and limits, and raises three normative concerns that have gone unattended by policymakers.

Steve Clowney

Modern Studies in Property Law 2012 - Call for Papers

The 9th Biennial Conference takes place at the University of Southampton from Wednesday 21st - Friday 23rd March 2012.  The conference series has its origins in the biennial conference first held by the University of Reading in 1996.  Those conferences gave rise to the book, Modern Studies in Property Law which, since 2001, has been the medium for refereed publication of the conference papers.  Modern Studies in Property Law 2012 will again be closely tied to publication of a volume of the book.

The opening keynote address on Wednesday 21st March will be delivered by Simon Gardner.  On Thursday 22nd March the conference keynote address will be given by Lord Walker of Gestingthorpe.

Further details can be found on the conference website.

Call for Papers

Proposals for papers should be sent to [email protected]<mailto:[email protected]> by 31 July 2011. Proposals should include:

1.      A short abstract (300 words)
2.      A very brief CV (just a few lines)

A few points to bear in mind

1.      All papers will be considered for publication in a volume of the book Modern Studies in Property Law.  This is subject to a refereeing process and acceptance of the paper for the conference does not necessarily mean that the paper will be published in the book.
2.      Historically, lots of papers are offered for the conference and it is hoped that this will continue.  This does mean that not all papers can be accepted.  The decision as to which papers to accept will be made by a panel of property lawyers.
3.      All speakers will be asked to write a short synopsis of their paper six weeks before the conference so that this can be circulated to delegates in advance of the conference.  The full version of the conference paper must be available three weeks before the start of the conference and will be circulated at the conference.
4.      The refereeing process will take place immediately after the conference and will operate to a strict timescale to ensure timely publication of the book.
5.      Chapters in the book should be in the region of 8,000-10,000 words.
6.      Unfortunately, it is not possible to offer any funding towards the travel coasts or the costs of attending the conference, even for speakers.

Does the County Recorder's Office Have a Photocopier?

Maybe, like me, when you teach your students about recording acts and title searches, you tell them the county officials they'll need to work with to complete a title search are helpful. 

On the other hand, maybe not so much . . . .

From the Cleveland Plain-Dealer comes this account of an exchange between a Cuyahoga County Recorder's Office official (Patterson), and an attorney (Marburger) who is deposing him about the presence, or absence, of a photocopier in the office, under the watchful eye of defense counsel (Cavanagh). 

Marburger: During your tenure in the computer department at the Recorder's office, has the Recorder's office had photocopying machines?

Cavanagh: Objection.

Marburger: Any photocopying machine?

Patterson: When you say "photocopying machine," what do you mean?

Marburger: Let me be -- let me make sure I understand your question. You don't have an understanding of what a photocopying machine is?

Patterson: No. I want to make sure that I answer your question correctly.

Cavanagh: Dave, I'll object to the tone of the question. You make it sound like it's unbelievable to you that he wouldn't know what the definition of a photocopy machine is.

Marburger: I didn't ask him to define it. I asked him if he had any.

Patterson: When you say "photocopying machine," what do you mean?

Marburger: Let me be clear. The term "photocopying machine" is so ambiguous that you can't picture in your mind what a photocopying machine is in an office setting?

 

Apparently he cannot.  It continues . . . .

Cavanagh: There's different types of photocopiers, Dave.

Marburger: You're speaking instead of -- you're not under oath. This guy is.

Cavanagh: I understand that, but I understand what his objection is. You want him to answer the question, but I don't think it's fair.

Marburger: It's not fair?

Cavanagh: It's not a fair question. A photocopy machine can be a machine that uses photostatic technology, that uses xerographic technology, that uses scanning technology.

Marburger: I don't care what kind of technology it uses. Has your offices -- we don't have technocrats on the Ohio Supreme Court. We've got people like me, general guys --

Cavanagh: Objection. 

 

I love that objection; apparently defendant's counsel objects to plaintiff's counsel's description of himself as a general guy.  But there's more . . . .

Patterson: I understand that there are photocopying machines, and there are different types of them just like --

Marburger: Are there any in the Recorder's office?

Patterson: -- there are different cars. Some of them run under gas power, some of them under electric power, and I'm asking if you could help me out by explaining what you mean by "photocopying machines" --

Marburger: That's a great point.

Patterson: -- instead of trying to make me feel stupid.

Marburger: If you feel stupid, it's not because I'm making you feel that way.

Cavanagh: Objection.

 

At this point, if my 14 year-old were here, he'd be yelling something like 'pwnned!', which apparently means 'owned,' which in human apparently means 'that was a zinger.'   But wait!  Perhaps if plaintiff's counsel could simply re-phrase the question, we could find an answer that makes everyone happy . . . .

Marburger: Have you ever--do you have machines there where I can put in a paper document, push a button or two, and out will come copies of that paper document also on paper? Do you have such a machine?

Patterson: Yes, sir.

Marburger: What do you call that machine?

Patterson: Xerox.

Success!

And good luck with that title search, students.

Addendum:

Then again, there are photocopiers, and then there are photocopiers, as we learned from The Wire:

 

Mark A. Edwards

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

90210 Neighbors Protest Mansion

It's common-fare to see the wealthy use zoning codes to exclude the less-well-off.  It's much less common to see the wealthy invoking land use rules to exclude the mega-wealthy.  But that's exactly what's happening in Benedict Canyon, an enclave of the rich and famous in Los Angeles.

In a neighborhood home to such luminaries as Bruce Springsteen, Jay Leno, and David Beckham, a mystery landowner had begun plans to erect an 85,000-square-foot family compound.  More specifically, the landowner (thought to be a Saudi prince) wants to put up a 42,681-square-foot house, a 27,000-square-foot auxiliary villa, a guest house, staff quarters and a gatehouse.  According to the L.A. Times, local residents believe that the proposal is akin to "commercial-scale construction, like building a Wal-Mart in the heart of a quiet residential neighborhood."  Both parties seem highly motivated and have deep pockets, so this dispute could go on for a while. 

My questions is: why would the landowner not reveal his/her identity?  There's obviously a pretty huge status quo bias at work - people don't want their property taxes to go up, they don't want their property values to fall, and they worry about the environmental quality of their neighborhood.  But most of all, I think the residents of Benedict Canyon seem worried about changing the social fabric of their enclave.  If you're the landowner, why not reveal your identity and do the necessary PR work?  Seems like a rookie mistake. 

Steve Clowney

Harris on Disputes Over Security Deposits

Lee Harris (Memphis) has posted Judging Tenant Protections: The Evidence from Enforcement of Landlord Penalties on SSRN.  Here's the abstract:

Critics of pro-tenant residential laws have argued that such laws actually hurt tenants. Law-and-economics scholars, for instance, argue that such reforms raise the cost of doing business to landlords. Forced to bring their dwellings up to code and wary of costly tenant lawsuits, landlords experience higher costs of doing business. However, the effects of pro-tenant residential rights cannot be evaluated without, as a first-step, coming to some conclusions about whether tenants actually use them and whether judges ever enforce them. That is, if pro-tenant residential rights are seldom enforced, landlords have little incentive to expend additional resources to meet new regulations, and no new costs need be passed on to tenants. Judges, for example, decide whether a tenant may forgo paying all, or part of, her rent if a dwelling is uninhabitable. And it is the judge who grants punitive damages if a landlord who fails to return a security deposit in a timely manner.

This Essay conducts a brief qualitative study of whether judges ever enforce such laws in the first place. Specifically, this study focuses on one product of landlord-tenant reforms in Connecticut – damage awards for landlords who do not return a tenant’s security deposit. Security deposit disputes between landlords and tenants are one of the most common kinds of landlord-tenant disputes and thus a good place to investigate whether pro-tenant residential laws actually help tenants as designed. In Connecticut, most landlord-tenant disputes are heard in informal settings by small claims magistrates. Their decisions are largely unreported and their decisions cannot be appealed. Thus, it is largely the small claims judge or magistrate who control whether the law, as written, will favor tenants. To conduct this study, the author conducted interviews of nine of the seventeen housing magistrate judges in Connecticut. In addition to the interviews with the nine magistrates, the author interviewed the caseload management specialist for small claims housing. Taken together, the interview findings suggest that landlords fare surprisingly well in small claims courts, in spite of pro-tenant protections. In fact, because civil penalties against landlords are rarely, if ever, imposed by magistrates, landlords need not expend much worry about such reforms.

Steve Clowney

Two on Judicial Takings

There are two new pieces on SSRN that touch on judicial takings.  First, John Martinez (Utah) has posted No More Free Easements: Judicial Takings for Private Necessity.  Martinez writes, "This article bridges the fields of constitutional judicial takings and the common law of easements that arise because of private necessity. The article suggests that the law of takings requires payment when a court declares that an easement should be established because of private necessity."

Second, Amnon Lehavi (Radzyner) has submitted Judicial Review of Judicial Lawmaking (Minnesota Law Review).  Here's the abstract:

“It would be absurd to allow a State to do by judicial decree what the Takings Clause forbids it to do by legislative fiat… the particular state actor is irrelevant.” Justice Scalia’s statement in the Stop the Beach Renourishment case, made as a basis for recognizing a “judicial taking” doctrine in constitutional property law, may have overreaching jurisprudential consequences. These implications involve not only the allocation of powers among the different branches of government and the modern role of courts as rule-makers, especially in common law doctrines. This recent opinion also bears significantly on what one may term the “judicial review of judicial lawmaking.”

While this term may initially seem odd, it represents a crucial dilemma about the role that the U.S. Supreme Court should play in reviewing certain types of state court actions.

Assume that a state court of last resort alters the state adverse possession doctrine, by eliminating the requirement that the possession has to be “continuous for the statutory period,” an element that had been set up in its previous case law - in a manner that systematically impacts the rights of landowners. When the U.S. Supreme Court reviews a subsequent judicial taking case, should it simply step in for the state court in finding “what the law is” and, in appropriate cases, say that the state court was wrong, as is the case with conventional appeals within the judicial branch? Or should the Court engage in the “classic” type of judicial review that often defers to the policymaker, as if it were examining a legislative or administrative provision? If we recognize the state judiciary as lawmaker, should it indeed receive no special treatment by the Court?

The purpose of this Article is not to engage in tautological exercises or to merely demonstrate incoherence in the Stop the Beach case. Rather, it seeks to identify some major, yet probably unintended, implications that result from the conceptualization of the judiciary as both lawmaker and “state actor” in a constitutional regime. In so doing, the Article offers an innovative theoretical approach, providing guidance to key dilemmas that have been left largely unresolved since the landmark Shelley v. Kraemer decision.

Steve Clowney

These Streets Will Make You Feel Brand New

There's a great article in today's New York Times about the 200th anniversary of the city's no-frills street grid.  The piece describes, in a very balanced manner, how the grid spurred development in Manhattan but simultaneously enforced a "relentless monotony" on the city.  The article also does an excellent job putting the achievement in context:

“What I found absolutely remarkable,” said Hilary Ballon, an urban studies professor at New York University and curator of a future exhibition on the grid for the Museum of the City of New York, “was how the city had a commitment to executing this vision, which required a pretty significant transformation in how the city worked — a greater degree of governmental authority, changes in the taxation system to fund this road building, and a multigenerational commitment to its implementation.”

The wizards in the graphics department also came through with another exquisite infographic, which shows the original street plan and provides a chronology of street openings.  It's all worth your time.

Despite my praise for the article, I want to go on record with a strong dislike of the New York street grid.  I find it cold, and boring, and I think the blocks are too long (and kids, get off my lawn).  The standard Manhattan block is about 264 by 900 feet.  Contrast that to cozy Portland, where the blocks are only 260 by 260 feet.  Beyond the lengths of the blocks, I think that the irregular streets that define places like Cambridge and Manhattan's SoHo add to their character and increase real estate values.  There's a deep magic in being able to make four right hand turns and not end up in the same place.  Or maybe I'm just a sucker for the crazy street layout because I'm from Pittsburgh - a city where it's not uncommon for one street (say, Beechwood Blvd) to intersect with another street (say, Monitor) in three different places...

 

Steve Clowney

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

Klass on Renewable Energy and the Public Trust Doctrine

Alexandra Klass (Minnesota) has posted Renewable Energy and the Public Trust Doctrine (UC Davis Law Review) on SSRN.  Here's the abstract:

This Article explores the role of the public trust doctrine in current efforts to site large-scale wind and solar projects on public and private lands. Notably, both proponents and opponents of such renewable energy projects have looked to the public trust doctrine to advance their goals. Proponents of large-scale renewable energy projects point to the environmental and climate change benefits associated with renewable energy development and argue that the use of public lands and large tracts of private lands to facilitate such projects are both in the public interest and consistent with the public trust doctrine. At the same time, parties opposed to particular renewable energy projects have argued that the land-intensive nature of these projects as well as their potential adverse impacts on endangered species, open space, aesthetic values, and pristine landscapes will result in a violation of the public trust doctrine. Which side is right? How do we balance the benefits and harms of large-scale renewable energy projects and what role should the public trust doctrine play in setting that balance? In addressing these questions, this Article discusses the extent to which the public trust doctrine applies to on-shore and off-shore renewable energy projects on private, state, and federal lands and waters. It then discusses the potential role state and federal legislation can play in codifying or expanding the application of the public trust doctrine with regard to state and federal lands and waters. It concludes by suggesting ways in which existing statutes and new, renewable energy-specific statutes can attempt to build on the public trust doctrine to encourage renewable energy development on public lands without compromising competing public trust values.

Steve Clowney