Tuesday, July 31, 2012
Brett Frischmann (Cardozo) has posted Defining Infrastructure and Commons Management (Book Chapter, Oxford University Press) on SSRN. Here's the abstract:
Infrastructure and commons are not typically thought to be related to one another. Both concepts have rich histories and varied meaning, and both involve complex phenomena that are the subject of study in various disciplines, including engineering, economics, political science, and law. There is no separate field of infrastructure study or commons study, and there are no settled universal theories or even definitions of infrastructure or commons. This chapter develops the foundation for bringing the concepts together. After a brief introduction to the modern conception of infrastructure and its traditional roots in large-scale, human-made physical resource systems, the chapter discusses a few observations about traditional infrastructure resources, including the important observation that traditional infrastructures are generally “managed as commons.” This sets the stage for a more detailed discussion of “commons management” as a resource management strategy and for the economic analysis that takes place in subsequent chapters.
Monday, July 30, 2012
My first post about Vienna is rather pedestrian, but it constantly struck me how construction sites in the city were barely separated from the public, particularly compared to sites in the United States. So here's my first set of comparative photos.
This is a construction site on a heavily travelled path right outside the Schottenring U-Bahn and tram station near the center of Vienna. I walked past this site on my way to class nearly every day. Please note how you have to walk or bike in a five or so foot wide path between the curb and a piece of heavy equipment that was being operated at the time (and kept swinging into that path). I could have taken dozens of photos showing a complete lack of separation between pretty heavy construction work (open pits, jackhammers making concrete fly, hot asphalt being applied to the sidewalk) and the public.
(Continued after the jump)
I just returned from spending July in Vienna, teaching a course on the Financial Crisis in the United States and Europe to a class of 10 -- 4 from Wake Forest Law, 1 from SMU Law, and 5 from the University of Vienna law program. Really incredible experience.
Teaching American and European students about the financial crisis while the crisis in the EuroZone continues to unfold was a fascinating experience.
From a property scholar's perspective, Vienna is an amazingly inspirational city. 1000+ years of history. The former capital of a multi-national empire, attacked and partially destroyed numerous times over the centuries. The Baroque architecture makes the city look like a wedding cake. Incredible public spaces -- parks, wide boulevards, performance spaces, museums and palaces. A city with a strong and well-functioning public transportation system, plus dedicated bikepaths and walking paths literally everywhere. Churchs, and cemetries, and catacombs galore.
I can post more about the class if anyone is interested. I will definitely post more about the property topics that Vienna constantly inspired me to think about.
As many of you probably heard, public officials in Boston recently declared that Chick-Fil-A (a fast food chain that specializes in fried chicken sandwiches) would not be welcome within the city limits because of the anti-gay sentiments expressed by the company's CEO. Officials in some places have gone so far as to threaten to deny Chick-Fil-A the permits it needs to open a store.
Over at Land Use Prof, Matt Festa asks whether a city could legitimately use zoning laws to block the sitting of a commercial enterprise based on the political views expressed by company employees. The answer, in short, is "no." Matt summarizes, "Many of us disagree with the Chick-fil-A CEO's opinions, but everyone seems to agree that it would be unconsitituional to prohibit the company's land use on that basis."
Eugene Volokh concurs and gets into the First Amendment weeds: "It doesn’t matter if the applicant expresses speech that doesn’t share the government officials’ values, or even the values of the majority of local citizens. It doesn’t matter if the applicant’s speech is seen as “disrespect[ful]” of certain groups. The First Amendment generally protects people’s rights to express such views without worrying that the government will deny them business permits as a result. That’s basic First Amendment law . . . ."
While all that's true, I think it's important to acknowledge a point recently made by Matt Yglesias, "while the Constitution would almost certainly prevent Chicago from de jure banning Chick-fil-a on these grounds, it's almost trivially easy for jurisdictions to abuse the extremely wide discretion they're granted to de facto do the same thing." For example, Yglesias argues that Boston could simply pass a law that all fast-food restaurants must be open seven days a week. Since Chick-fil-a doesn't open on Sunday as part of its owners' socially conservative worldview, that would effectively ban the chain.
Sarah Webber (Dayton) has posted Don't Burst the Bubble: An Analysis of the First-Time Homebuyer Credit and its Use as an Economic Policy Tool (John Marshall Law Review) on SSRN. Here's the abstract:
In 2008, faced with a looming real estate crisis, Congress hastily acted to stabilize the economy by offering a first-time homebuyer credit. This tax credit was trumpeted as a solution to the excess inventory of homes for sale and to stop the free-fall in home values. The credit, however, failed to deliver on its promises. By analyzing the first-time homebuyer credit, its creation, its implementation and its economic impact, this Article concludes that, when compared to alternative policy solutions, Congress erred in using the tax code to implement a first-time homebuyer credit.
Friday, July 27, 2012
Frederic Bloom (Colorado) & Christopher Serkin (Brooklyn) have posted Suing Courts (Chicago Law Review) on SSRN. Here's the abstract:
This Article argues for a new and unexpected mechanism of judicial accountability: suing courts. Current models of court accountability focus almost entirely on correcting legal errors. A suit against the court would concentrate on something different — on providing transition relief, by way of legal remedy, to those bearing the heaviest burdens of desirable legal change. These suits may at first appear impossible. But suing courts is conceptually rational and mechanically reasonable, a tool that eases legal transitions while navigating the many hurdles modern doctrine puts in the way. This Article sets out the first complete account of how, where, and why suing courts might work — both in the context of judicial takings and perhaps outside it, too. It shows how suing courts can simultaneously discipline judges and liberate them. And it outlines a surprising promise for all involved — a narrow hope for impacted parties and a new kind of accountability for law-changing courts.
Thursday, July 26, 2012
The New York Times provides an update on New Haven's attempt to build over a highway that severed the historically black Hill neighborhood from downtown:
In the 1950s, this city, like others, believed that the best way to get people back from the suburbs was to build more highways. A result was the Oak Street Connector, a limited-access spur off Interstate 95 leading to the central business district. [...] The highway, part of Route 34, severed the Hill neighborhood from the heart of downtown and hastened the Hill’s decline, because nobody wanted to walk across a wide, busy highway to get to the neighborhood, according to city leaders, business owners and residents. [...]
But city officials say help is on the way from Downtown Crossing, a $135 million redevelopment plan that has been years in the making. [...] Though details are still being worked out, the plan calls for building streets, sidewalks and buildings on platforms above the existing highway. The city’s grid in the area would be restored, creating a more pedestrian-friendly environment, and the Hill would be reattached. The highway will have fewer exits into the city and will lead directly into parking garages.
Daniel Halperin (Harvard) has posted A Better Way to Encourage Gifts of Conservation Easements on SSRN. Here's the abstract:
The author’s proposal would repeal the deduction for the appraised value of a conservation easement that is allowed by current law. Congress should consider replacing the subsidy with a program of direct grants or limited-budget tax credits administered by an expert agency. If the deduction is continued, eligible donees should be only large institutions with a large portfolio of easements and resources and motives to enforce the easement, there should be an excise tax on nonenforcement of the easement, and there should be another government agency other than the IRS involved in enforcement. The special higher allowances for the deduction of appreciated property allowed by current law should be repealed.
The proposal is offered as a part of the Shelf Project, a collaboration of tax professionals to develop proposals to raise revenue without a VAT or a rate increase. Shelf Project proposals raise revenue while making the tax system more efficient and reducing deadweight loss. Shelf projects follow the format of a congressional taxwriting committee report in explaining current law, what is wrong with it, and how to fix it.
Wednesday, July 25, 2012
Fred Clark argues in the affirmative:
I believe . . . that American Christianity has been shaped by the suburbs far more than the suburbs have been shaped by American Christianity. [...] The suburbanization of American Christianity has had a huge impact on institutional and denominational structures. Automobile-shaped development has produced an automobile-shaped ecclesiology. The car has abolished the possibility of the parish. And that, in turn, has helped to redefine “neighbor” as a matter of preference more than of proximity — as optional rather than obligatory. That redefinition is rather significant, since “Who is my neighbor?” is kind of an important question for Christians.
The suburbanization of American Christianity has altered our theology in other fundamental ways. Consider, for example, the church-growth movement and its focus on the archetypally suburban idea of the “homogenous unit principle” [Ed: The Homogenous Unit Principle states that churches with culturally and ethnically homogenous membership grow the fastest]. Could there be a more radical rejection of Pentecost than that?
Andrew Sullivan raises a parallel: "It's a faint echo of how Islamist fundamentalism required the location-free Internet to take off. A geographically disassociated, global religion necessarily becomes an ideology, because, unlike the parish, it does not have to grapple with local reality, with differing views, with different temperaments."
Daniel Fitzpatrick (Australia National University) has posted First Possession at the Frontier: Property and the Problem of Social Order on SSRN. Here's the abstract:
Information cost theories of property suggest a baseline preference for bright-line rules of first possession as interpretive simplicity reduces the costs of information transmission to a broad property audience. A baseline preference for simplicity allows for rule complexity where increases in the cost of information are outweighed by reductions in deadweight losses. This article suggests that rule complexity may correlate with reductions in deadweight losses through maintenance of social order, at least in 'frontier’ contexts where there are risks of violent acts of property encroachment. At the frontier, where the costs of state enforcement outweigh the benefits, the lowest objective sum of transaction costs may be provided by complex rules of first possession that reduce the enforcement costs of property. Complexity may take the form of rules of abandonment, restrictions on claimant eligibility, or distinctions between actual and legal possession. The argument is illustrated by reference to East Timor, which provides an unusual opportunity to analyze the emergence of institutional complexity relating to property, both in circumstances of custom without law and in the context of land law in a new nation-state.
Tuesday, July 24, 2012
This news is a little out-of-date, but certainly worth posting. At the beginning of June, two property profs were selected to present papers at the prestigious Junior Faculty Forum hosted at Harvard:
Kenneth Stahl (Chapman), Local Government, One Person/One Vote, And The Jewish Question
Ashira Ostrow (Hofstra), Land Law Federalism
The full list of presenters is here. A hearty congratulations to Ken and Ashira.
Tessa Davis (Tulane - VAP) has posted Keeping the Welcome Mat Rolled-Up: Social Justice Theorists’ Failure to Embrace Adverse Possession as a Redistributive Tool (Journal of Transnational Law & Policy) on SSRN. Here's the abstract:
J.A. Pye (Oxford) Ltd.and another v. Graham and another (Pye), a recent U.K. case, raised the question of whether adverse possession may violate a human right to own property. The case implicated the then recent bringing adverse possession into the human rights realm. Yet, a review of the case as it moved through the U.K. courts and the European Court of Human Rights reveals, however, that courts have not embraced a consideration of adverse possession as playing a role in substantive human rights or social justice concerns. This is due, in part, to the dearth of human rights and social justice scholarship on the doctrine. Though human rights and social justice theorists have failed to fully develop the doctrine, their theories lay the groundwork for utilizing adverse possession as a tool to fashion new property systems. Utilizing adverse possession as a social justice tool can help foster systems with widespread property distribution while actively recognizing and supporting human rights of both owners and those seeking ownership.
Monday, July 23, 2012
The extremely high cost of housing in San Francisco is pushing regulators to reconsider some of the area's draconian land use policies. The city government has, for example, proposed reducing the minimum size of rental units in response to demographic shifts toward one-person households. The new minimum would be 220 square feet versus the current minimum of 290 square feet.
Oddly, some affordable housing advocates are pushing back against this change:
"It's disingenuous to say it creates affordable housing, it's just that you get significantly less space," said Sara Shortt, executive director of the Housing Rights Committee of San Francisco. "This doesn't create affordable housing, it simply creates another lifestyle option." She also worries that the "shoe-box" units could create a slippery slope of allowing other exemptions on considerations like natural light and ceiling height.
Stephen Miller (Idaho) has posted Percent-for-Art Programs at Public Art's Frontier on SSRN. Here's the abstract:
The federal government, many state governments, and an estimated 350 local governments have implemented percent-for-art fee programs that require a percentage of a project's construction cost to go towards public art. Historically, this resulted in a permanent, on-site art installation. An increasing number of cities, however, are experimenting with percent-for-art fees that fund off-site or temporary public art installations and performances that reflect changes in public art itself. This Article explores the legal implications of, and provides models for, implementing this new type of percent-for-art fee.
Friday, July 20, 2012
Celeste Pagano (Oklahoma City) has posted Where’s the Beach? Coastal Access in the Age of Rising Tides (Southwestern U. Law Review) on SSRN. Here's the abstract:
As the dynamic and shifting strips of real estate we call beaches have for centuries raised tensions between public and private ownership and use, a variety of common law doctrines have evolved to manage those tensions. Legal scholars have championed one less-developed doctrine, rolling easements, as the solution to preserving beach access in the face of accelerating shoreline movements expected due to climate change. Stated simply, rolling easements allow for the public’s right to access a beach, once established under any of a variety of common law means, to migrate or “roll” with the movement of the beach itself.
Until recently, rolling easements were presumed by many to be the law of the State of Texas. Recently, the Texas Supreme Court decided this was not the case. After a five-year legal battle, the Court held in Severance v. Patterson that beach access easements do not “roll” when there are sudden shifts in the shape of a shoreline. In doing so, the Court upended decades of Texas precedent and signaled the beginning of the end of public access to many previously free and open beaches. The Court’s reasoning rested largely on the application of the doctrine of avulsion, a centuries-old rule that is often recited but, in reality, so seldom applied to take away coastal access rights from the public that it is does not accurately reflect any “rule” at work in most of our coastal states. Instead, most of the very few American courts addressing sudden losses of land along coastlines have found ways to preserve public beach access once it exists. This accords with the multivalent values inherent in beachfront land, and with the particular weakness of the expectation interest in physically-shifting real estate. It is therefore my contention that the Court in Severance incorrectly applied a doctrine that has always had an uneasy place in property law and ill serves the contemporary reality of beaches that are retreating due to sea level rise.
Thursday, July 19, 2012
Over at the Faculty Lounge, Al Brophy has a very thoughtful meditation on the future of the Joe Paterno statue in State College. Al writes, "There are a lot of factors one should consider in statue removal - like who had a say in the inital placement, what was known at the time of placement, what is known now, and the meaning of the statue now. A lot of those factors counsel in favor of removal, I suppose . . . . But I continue to think that the monument should be left up; now it can serve as a reminder of what happened." Al's sentiments are echoed in Ta-nehisi Coates' recent New York Times' column. Coates makes the case that removing the statue amounts to erasing history.
Although Al's position carries some real theoretical punch, I want to argue that it would be a mistake to leave the Joe Paterno statue intact.
On the larger point, I don't fully agree with the proposition that removing monuments amounts to "rewriting history." The fundamental difficulty with that position is that the landscape has never been a neutral record of the past. The built environment has always worked as a normative discourse fashioned by powerful groups and used to express messages about who belongs and who does not. Thus, changing the composition of a jurisdiction’s monuments does not erode any universal truth. Here in Kentucky, for example, there's a statue of Jefferson Davis under the rotunda of the capitol building with the inscription "Patriot - Hero - Statesman." Many Kentuckians remian committed to the proposition that removing the statue amounts to whitewashing Kentucky's history in the name of political correctness. But that just isn't true as a factual matter. Kentucky never seceded. Thousands and thousands of its sons died in the defense of Union. The statue isn't about history. It's about sending a (government sanctioned) message that blacks aren't welcome.
On the specific issue of the Joe Paterno statue, I don't think that leaving the sculpture intact would serve as a particularly good reminder of the shameful events at Penn State. The aesthetics of statue--it depicts a creepy-looking Paterno running onto a football field with his finger in the air--convey nothing about child abuse, shame, moral frailty, or abuse of power. Over time, the intact statue may do more to re-deify Paterno than address the problems so entrenched in the culture of Penn State. Moreover, I don't think Sandusky's victims, many of whom still live in State College, should be forced to confront a corporeal rendering of the man who may have enabled his conduct.
The best course of action, I argue, would be to remove the statue and then hold some kind of memorial competition to find its replacement. Done correctly, the destuction of the Paterno statue could initiate a process of critically rethinking what values the community holds and who deserves the honor of being remembered in steel and stone. A community-wide deliberation about what should replace Paterno would do more to promote reflection and sophisticated thought than simply leaving the statue intact.
Katrin Anacker (George Mason), James Carr (Fannie Mae), & Archana Pradhan (National Community Reinvestment Coalition) have posted Analyzing Determinants of Foreclosure of Middle-Income Borrowers of Color in the Atlanta, GA Metropolitan Area on SSRN. Here's the abstract:
Foreclosures have disproportionately affected borrowers and communities of color. Many studies have concentrated on the nation and specific metropolitan areas, but few academic studies have focused on Atlanta. Using a merged data set consisting of Home Mortgage Disclosure Act (HMDA), U.S. Census, and Lender Processing Services (LPS) data and utilizing a logistic regression model, we analyze the likelihood of foreclosure in the Atlanta, GA metropolitan area. We find that African American borrowers are 52 percent and Hispanic borrowers 159 percent more likely to go into foreclosure, controlling for key financial variables. We also find that African American middle-income borrowers are 35 percent more likely to go into foreclosure. Moreover, we find that exotic mortgage products, such as balloon mortgages, adjustable rate mortgages (ARMs) and mortgages with a prepayment penalty have a higher likelihood of foreclosure than standard 30-year fixed rate mortgages.
Wednesday, July 18, 2012
The New York Times runs a piece on the thriving black market for organs in Europe:
Facing grinding poverty, some Europeans are seeking to sell their kidneys, lungs, bone marrow or corneas, experts say. This phenomenon is relatively new in Serbia, a nation that has been battered by war and is grappling with the financial crisis that has swept the Continent. The spread of illegal organ sales into Europe, where they are gaining momentum, has been abetted by the Internet, a global shortage of organs for transplants and, in some cases, unscrupulous traffickers ready to exploit the economic misery.