Thursday, June 30, 2011
The answer, it seems, is maybe.
Around the country, many leases give landlords the power to evict based on the criminal behavior of a tenant, any member of a tenant’s household, or a tenant's guest. Department of Housing an Urban Development, for example, specifically allows landlords to evict tenants for criminal activity committed by any household member or guest -- this is known as "the one-strike rule." The problem with such policies it that they would allow the eviction of female tenants based on the violent acts committed by their spouses, partners, and visitors
There are, however, some legal protections to help the victims of stalking and domestic violence. First, tenants living in public housing or using section 8 vouchers can seek relief under The Violence Against Women Act (VAWA). VAWA provides that being a victim of domestic abuse, dating violence, or stalking is not a basis for denial of assistance or admission to public or Section 8 tenat-based or project-based housing. Moreover, VAWA prohibit the termination of assistance or tenancy based on criminal activity directly relating to domestic violence or stalking. (For more info, see this memo from HUD).
Things get tricker in private housing. A few states have passed laws on the issue. California Code of Civil Procedure Section 1161.3, for instance, prohibits terminating the tenancy of a victim of domestic violence "if the domestic violence has been documented in a police report within the last 180 days or has resulted in a restraining order. Domestic violence covered by this statute includes stalking."
The Fair Housing Act may also provide some relief. Facially neutral housing polices like the "one strike rule" almost certainly have a disparate impact on women, since the overwhelming majority of domestic violence victims are female. However, as of yet, I haven't found any great case law on this. It appears the ACLU has brought a case of two on this issue, but the disputes ultimately settled.
Wednesday, June 29, 2011
In Central and Eastern Europe, monuments wage a silent but very real debate about the meaning of recent history.
In Prague, there are monuments to the communist liberators, and monuments to the victims of communism:
In Budapest, within sight of each other, are monuments to Soviet soldiers killed in the liberation of Budapest in 1945, and to Hungarians killed by Soviet soldiers in the uprising of 1956:
And in Bratislava, the main train station still celebrates the triumph of international socialism over the capitalists:
History hasn't ended. (With luck, it's just begun.)
Mark A. Edwards
(comments are held for approval, so there will be some delay in posting)
Eduardo Penalver (Cornell) and Stewart Sterk (Cardozo) have a new Land Use textbook that hits the shelves this August. Here's a letter from the publisher's website on what makes the new book distinctive:
(1) An intensely practical focus. Although our book is not short on theory, we emphasize questions and problems that land use lawyers have to face on a regular basis – not just before appellate courts, but before zoning boards, planning commissions, and other administrative bodies. In fact one entire chapter of the book is devoted to three extensive development problems that force students to confront the issues central to land use practice. The problems provide an excellent vehicle for classroom role-playing.
(2) Manageable coverage and length. We have designed our book as a teaching book, not as a desk reference. Because we focus heavily on questions and problems rather than long textual excerpts, the daily reading load will be reasonable for busy students, and will focus their attention on critical issues. We believe that an ambitious teacher will be able to cover the entire book (or almost the entire book) in a three-credit course. Our teachers manual also provides suggestions for adapting the book to a two-credit course or seminar.
(3) An extensive teachers manual that will make it particularly easy to switch casebooks. Our manual does more than summarize the material in the book. We have provided a “Teaching Strategy” for every section of the book. In effect, these strategies are themselves a set of teaching notes that indicate what questions we raise in class, and how we elicit student discussion of the issues raised by the casebook materials. The manual also summarizes each of the principal cases in the book, and provides answers (although not always black-and-white answers) for all of the questions and problems in the casebook.
I always value both Penalver's and Sterk's work, and look forward to cruising thourgh of copy of this text. Currently, you can peruse page proofs at the Foundation Press website: http://www.westacademic.com/Professors/ProductDetails.aspx?productid=161376&tab=1
Ken Stahl (Chapman) has posted All Power to the Neighborhoods?: The Delegation Doctrine and Neighborhood Control of Zoning on SSRN:
Whether cities should delegate some of their zoning power to neighborhood groups is one of the most hotly contested issues in municipal politics, yet it is also essentially a moot point. Since a bizarre series of Supreme Court cases in the early twentieth century, it has been largely settled that cities may not constitutionally delegate the zoning power to sub-municipal groups, at least where the power is delegated specifically to landowners in a certain proximity to a proposed land use change.
This article argues that the judicial prohibition on delegating zoning power to proximate landowners – a scheme I designate a “neighborhood zoning district” – is doctrinally illogical and indefensible as a matter of public policy. As a doctrinal matter, the cases barring the neighborhood zoning district are at odds with another line of cases in which courts have upheld municipal schemes that empower landowners within a territorial area to authorize the financing of services or improvements through a mandatory assessment, known as a “special assessment district,” or in its modern incarnation as a “business improvement district.” As I argue, neighborhood zoning districts are conceptually identical to special assessment districts. Both restrict the franchise to individuals deemed to have a particularly substantial interest based on land ownership in proximity to a proposed change in the character of the neighborhood. As such, both devices offer landowners the ability to efficiently manage local externalities and enable large, diverse cities to effectively compete with small, homogenous suburbs by mimicking the most attractive features of suburban government. The article attempts to reconcile the two doctrinal lines on several policy grounds, but finds that, in many cases, neighborhood zoning districts actually represent sounder public policy than special assessment districts. The article concludes that courts should broadly defer to municipal delegations of power to sublocal groups, so that cities can work out their own desired relationship between neighborhoods and city hall, and their own strategy for surviving in an era of intense inter-local competition.
Tuesday, June 28, 2011
The New York Times makes the case that the pedestrianization of Europe has shifted into high gear:
While American cities are synchronizing green lights to improve traffic flow and offering apps to help drivers find parking, many European cities are doing the opposite: creating environments openly hostile to cars. The methods vary, but the mission is clear — to make car use expensive and just plain miserable enough to tilt drivers toward more environmentally friendly modes of transportation.
Some of the stuff in this article just seems crazy to me. Installing unnecessary red lights to make driving miserable? Ugh. I live in a city that has terrible red-light synchronization. It doesn't make Lexington into a walker's paradise--it makes drivers angry and and has led to a culture of running red lights.
That said, I do think there's an interesting story buried in this article about parking. In the U.S., we mandate that new business provide some ungodly number of parking spaces for customers. It appears that in Europe the regulations are backwards: "cities welcome new shopping malls and apartment buildings but severely restrict the allowable number of parking spaces." Why have any parking regulations at all? Why not just let the market make these decisions? If we stop subsidizing parking, we could have enjoyable driving AND encourage more people to use mass transit.
Over the weekend, Stanford hosted the 12th Annual Stanford/Yale Junior Faculty Forum. The Forum's objective is "to encourage the work of young scholars by providing experience in the pursuit of scholarship and the nature of the scholarly exchange. Meetings are held each spring, at Yale one year and Stanford the next." Two scholars presented papers with a property twist:
• Monica Eppinger (St. Louis) presented: Boomtown and Ghost Town in Post-Soviet Ukraine - On Property, Personhood, and the New Objectivity.
• Ryan Bubb (NYU) presented: States, Law, and Property Rights in West Africa.
In Budapest, there is a strange mix of the beautiful and the shabby:
If you're in the market for a cathedral, now's the time:
(comments are held for approval, so there will be some delay in posting)
Jessica Owley (Buffalo) has posted Tribes as Conservation Easement Holders: Is a Partial Property Interest Better than None? (book chapter) on SSRN. Here's the abstract:
Conservation easement use is growing rapidly, as is the number of organizations looking to the tool to meet land conservation needs. Until recently, tribes had not been involved in conservation easement transactions. This book chapter examines the most common way tribes have become involved in conservation easement transactions—tribes as conservation easement holders.
The chapter examines why tribes decide to hold conservation easements, looking at the choice to use conservation easements generally and then situating the decision in the evolution of property law in the United States both on and off tribal land. Conservation easements are a uniquely American form of property that emerge from Lockean roots and embrace a libertarian notion of property rights. In that light, tribal embrace of the tool may seem surprising as these notions of property have done harm to tribal sovereignty and may be at odds with some traditional tribal practices.
The chapter concludes by asking whether tribes should use conservation easements. Wrapped up in this question is an assessment of the conservation easement tool generally as a vehicle for long-term land protection. The strength of the conservation easement tool is that it gives government entities the ability to extend their land conservation and environmental stewardship roles beyond their jurisdictional boundaries. Tribes may not have the power to regulate land use in nearby communities, but they can acquire conservation easements over such land and obtain similar results. Thus, despite some discordance due to the anticommunitarian sentiments at the heart of conservation easements, the conservation easement tool may provide tribes with an avenue for furthering tribal goals of conservation and intergenerational equity.
Monday, June 27, 2011
The LA Times profiles the Nob Hill Haus, possibily the greenest home in the West:
Those who follow sustainable design say the new residence could very well be one of the most water-efficient houses in the region, a milestone for L.A. as the city seeks better models of conservation. The Nob Hill Haus, as its owner-designers call it, could serve as a template for the house of the future here.
Hanoch Dagan (Tel Aviv University) has posted Pluralism and Perfectionism in Private Law on SSRN:
Many private law scholars strive to divine broad unified normative theories of property, contracts, torts, and restitution (or, at times, even of private law as a whole). These monist accounts suggest that one regulative principle guides the various doctrines of these complex legal fields or that, even if more than one value shapes a given field, there is one particular balance of such values that guides the entire terrain. Notwithstanding the intuitive appeal of such structural monism, this Essay calls for a pluralist turn in private law theory and argues that a structurally pluralist and moderately perfectionist understanding provides a better account of private law generally and of property law more particularly. The multiplicity and complexity implied in such an understanding are also normatively valuable for liberal private law and should facilitate a variety of social spheres embodying different modes of valuation.
Jane Scoular (University of Strathclyde, Glasgow) has posted Legal Geographies, Controlling Sexually Orientated Businesses: Law, Licensing, and the Geographies of a Controversial Land Use on SSRN. Here's the abstract:
In this article, we explore both a neglected geography (the location of sexually oriented business) and a neglected instrument of sociospatial control (premises licensing). Arguing the former is increasingly shaped by the latter, we suggest that licensing provides a flexible means by which the state is able to reconcile the growing demand for “adult entertainment” with concerns about community standards, urban aesthetics, public safety, and property prices. We demonstrate this through an examination of the role of UK licensing legislation in controlling the location and visibility of such controversial businesses in London’s West End. It is demonstrated that, in this case, licensing has encouraged the “upscaling” of sex-related businesses while reducing their overall number and visibility. We conclude that licensing, as a means of controlling contentious urban land uses, constitutes a “field of governance” whose legal geographies remain to be adequately theorized and explored.
Friday, June 24, 2011
Jeremy Waldron (NYU) has posted The Rule of Law and the Measure of Property (The Hamlyn Lectures) on SSRN. Here's the abstract:
The idea in these lectures is to discuss the relation between property and the rule of law in a deeper way than this has been discussed in the past, in particular in a way that reflects realistic understanding of how property rights are created and modified. I use the Lockean phrase "the measure of property" but the gist of my argument will be that our thinking about the rule of law needs to focus on all the ways in which property is non-Lockean in its origin, legal status, and moral force. In the course of doing this, I will be looking at some of the rather naive assumptions underlying the tight connection that has been forged between property rights and the rule of law in neo-liberal political economy. And I will argue that we can abandon or modify some of these naive assumptions about property without compromising the very great importance that is properly attached to the ideal of the rule of law.
There are three lectures in all. Unfortunately the original lecture titles are not a good indication of the eventual contents. Lecture 1 was called "The Classical Lockean Picture and its Difficulties" and it mainly addresses the alleged contrast between (a) the rule of law and (b) rule by law, and the suggestion that property rights might be privileged under (a). It explores Richard Epstein's version of this idea and then it spends some time on the Lockean account of property. The argument is that in the real world even Lockean property has an inescapable public law dimension. Lecture 2 was called "Unraveling the Form and Substance of Property," but it is really about the contrast between formal/procedural and substantive views of the rule of law and the dificulties inherent in identifying respect for private property rights as a substantive dimension of the rule of law. The argument is that given the accordion-like expandability of the category of property, this cannot work to privilege property rights over other legal rights etc. Lecture 3 was called "The Rule of Law, Property, and Legislation" and it is a defense of legislation, including regulatory and redistributive legislation in light of the rule of law.
Readers should note that although I spend a lot of time discussing the fact situation in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), these lectures are not lecture sin Amercina constitutional law, nor do they aim to build pathways through the swamp of US takings jurisprudence.
Thursday, June 23, 2011
Over at Land Use Prof, Tim Mulvaney has a nice write-up on PPL Montana v. State of Montana, a recent property/enviro case that the Supreme Court has decided to grant cert on. The central issue in the case is who owns the beds and banks of three Montana rivers that play a significant role in state's economy. Whether the rivers are privately owned or belong to the state under the public trust doctrine depends on whether the rivers were “navigable” when Montana was admitted to the Union in 1889.
As Tim points out, there may also be a looming judicial takings issue. Tim writes: "In its petition for certiorari, PPL Montana cited to Stop the Beach in asserting that, '[b]ecause [the Montana Supreme Court was] the operative force behind this land transfer [from private ownership to state ownership], it remains to be seen whether property owners in general have a Takings Claim or due process objection to [such a] land grab.'" Moreover, the Cato Institute is arguing that the "Montana Supreme Court adopted a retroactive rule that destroyed title already accrued in violation of the Takings Clause," and calls the Court’s ruling a “thinly-disguised judicial taking.”
Adam Mossoff (George Mason) has posted Commercializing Property Rights in Inventions: Lessons for Modern Patent Theory from Classic Patent Doctrine (book chapter) on SSRN. Here's the abstract:
At the start of the Industrial Revolution, patentees created many novel and complex transactions to commercialize their property: they maximized their profits through sophisticated agreements that imposed restrictions on manufacturing, sales, and other uses of their inventions. When these restrictions were challenged as invalid restraints on property, courts consistently upheld them. They did so by employing the same concepts and doctrines used by common law courts to validate the creation of lesser estates or restrictive covenants for real property. In sum, early American courts incorporated into patent law the same legal doctrines governing conveyances of real estate, even going so far as adopting the common law property concepts of "assignments" and "licenses." Given widespread confusion today concerning patent conveyance doctrines, this chapter explains the structure and content of this now-forgotten doctrinal framework.
This analysis is descriptive (or positive, in economic parlance), but patent theorists today can draw at least two important lessons from it. First, it reveals how traditional property theory is determinative in patent law. Early American courts secured to patentees the same conveyance rights as owners of real estate because patents were "property." Thus, by definition, patentees enjoyed the same rights as those of landowners – the exclusive rights of use, enjoyment and disposal. Courts applied to patentees the same legal rules for conveying estates, and thereby permitted patent-owners to sue downstream infringers if there was a properly created reversionary interest. Second, patents are now defined as securing only a right to exclude, and this has unhinged patent conveyance doctrines from their firm conceptual grounding in property law. When novel issues are presented to courts concerning complex conveyances of patent rights, the result is indeterminacy and confusion in both the Federal Circuit's and the Supreme Court's decisions. Perhaps it is time to rethink how the hoary concept of property was essential to the successful commercialization of property rights in inventions in the nineteenth century.
Wednesday, June 22, 2011
Mark A. Edwards
(comments are held for approval, so there will be some delay in posting)
Between 2000 and 2004, the city of St. Louis used eminent domain to condemn 24 buildings owned by Jim Roos' non-profit organization. To protest the condemnations, Roos painted a huge "End Eminent Domain Abuse" mural on the side of a building that faces Interstate 44. Unsurprisingly, the government of St. Louis wasn't happy. The city's Building and Inspection Division cited Roos for violating the city's sign code, arguing that permits were required for “signs” of this size displayed on a building. Fed up, Roos' non-profit has sued the city for violating its First Amendment rights. According to Roos, if the First Amendment means anything at all, it means that citizens have the right to protest government policies without having to get government approval. After a long legal battle, the case has finally worked its way up to the Eighth Circuit - stay tuned for the verdict.
One last note. Doesn't the red slash through "End Eminent Domain Abuse" make this mean, Don't End Eminent Domain Abuse? Michael Scott would approve:
Gerald Korngold (New York Law School) has posted Cutting Municipal Services During Fiscal Crisis: Lessons from the Denial of Services to Condominium and Homeowner Association Owners (NYU Journal of Legislation and Public Policy) on SSRN. Here's the abstract:
Faced with restrictions on revenue and increased demands for municipal services, local governments have often chosen to cut expenses by denying services such as trash and recycling collection to unit owners in condominiums and homeowner associations (HOA). Although these owners continue to pay full property taxes, they are forced to purchase the withheld public services from private contractors. Condominium and homeowner HOA owners in effect are forced to pay twice for services, even though for these purposes they are indistinguishable from other (single family) residential owners. In light of the current crisis in municipal finance, we can expect that states and towns will attempt to balance their budgets by additional service cuts on small groups in the community who are unable to resist the majority’s political power.
This article will analyze the denial of municipal services to condominium and HOA owners from a public policy and legal perspective. My thesis is that various goals and commonly held values demonstrate that it is poor public policy for municipalities to place the pain of service cutbacks on only one segment of residential property taxpayers. Legislatures should reject service denial proposals because such programs compromise powerful societal policies including efficiency, fairness, shared sacrifice, notice to buyers, and community building. If government still does enact service denials, condo and HOA owners might challenge them in the courts under takings, equal protection, and substantive due process theories. While I offer what I believe to be a plausible equal protection argument against service denials, I do so reluctantly since courts should not generally intervene into state and local regulatory matters. Legislatures need the flexibility to enact programs and judicial intrusion will weaken goals of separation of powers, judicial economy, and experimentation under federalism. The case of service denials, however, where the majority is transferring all costs/burden of a cutback to a smaller segment of society and where there is no plausible distinction between the owners in the majority and minority, might be the rare case where judicial intervention is necessary. One would hope, though, that legislatures do not act unwisely in the first place by enacting no-service laws.
I further argue that my analysis of the issues invoked in condo and HOA service denials should inform policy makers and the courts during the current period of significant municipal fiscal crisis and ensuing service cuts. The fundamental questions in the condo and HOA service denial and the current fiscal cutbacks are the same: which citizens should have their services reduced, should the pain of cutbacks be shared equally, and who (legislatures or courts) should make these decisions? The clashing choices and resolutions in the case of denial of municipal services to condominium and HOA owners provide important guidance when redefining general fiscal goals and obligations of state and local governments.