Wednesday, September 19, 2012
John Martinez (Utah) has posted From Pyramids to Stories: Cognitive Reconstruction of Local Government Authority on SSRN. Here's the abstract:
This article describes a cognitive science approach to law, uses it to critically evaluate conventional "pyramid" legal analysis of local government authority, and suggests stories as alternative models for defining such authority. The article suggests that stories better reveal what is at stake in regard to local government authority and thus helps us to arrive at better solutions. The article illustrates the storytelling analytical approach in three situations: a local government's condemnation of private property for resale to a private developer, the delegation of land use control authority to neighborhood groups, and local government attempts to zone out nontraditional families.
Tuesday, September 18, 2012
As you know by now, Professors’ Corner is a monthly free teleconference sponsored by the American Bar Association Real Property, Trust and Estate Law Section's Legal Education and Uniform Laws Group. Each month’s call features a panel of three law professors who discuss property cases of interest to practitioners and scholars. I will post a more particular description of each month's program and call-in information closer to each call, but wanted to give you the heads up to mark your calendars for the next few calls.
Each call will be at 12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a.m. Pacific).
Please mark your calendars to join us! If you are interested in participating in a future Professors' Corner call, or if you have a suggestion for a topic, please let me know.
I'm thrilled to announce that Priya Gupta, an Associate Professor at Southwestern, has agreed to guest blog here over the next few weeks. Before signing on at Southwestern, Priya taught at theJindal Global Law School (JGLS) in India, practiced law as a structured finance attorney in New York, and worked as a consultant in Boston. Her research intersts center around property rights and economic development. Welcome, Priya.Her recent work includes:
"The Peculiar Circumstances of Eminent Domain in India," 49 OSGOODE HALL LAW JOURNAL (forthcoming 2012)
"'The Toxic Trade': The Legal Landscape of Asbestos Regulation in India, 90/91 WOMEN & ENVIRONMENTS 25 (with D. Jain) (Spring/Summer 2012)
"Promotion Clinical Legal Education in India: A Case Study of the Citizen Participation Clinic," Joint Report by the Cornell International Human Rights Clinic and the Jindal Good Rural Governance and Citizen Participation Clinic (with E. Brundige, S. Kalantry, and A. Pandley) (July 2012)
"Ending Finders, Keepers: The Use of Title Insurance to Alleviate Uncertainty in Land Holdings in India," 17 U.C. DAVIS JOURNAL OF INTERNATIONAL LAW & POLICY 63 (2010)
"The Ambivalent Life of DEAD AID," 1 INDIAN JOURNAL OF LAW & ECONOMICS 169 (2010)
Jim Fallows notes the increasingly heated protests in China over a territorial dispute with Japan (the controversy concerns the uninhabited Diaoyu/Senkakus Islands). The banner in this picture, taken outside a Chinese Audi dealership, reads, "Even if China becomes nothing but tombstones, we must exterminate the Japanese; even if we have to destroy our own country, we must take back the Diaoyu Islands." Yikes.
Fallows also states that these seemingly state-sponsored protests against the Japanese reveal "the difference between the relentlessly surging-ahead Chinese economy as so often portrayed in American journalistic and political discussion (eg the article discussed here), and the many, many signs of political, cultural, financial, and even moral strain emerging in the real-world China that is the stage for the current protests."
David Carey Miller (Aberdeen) has posted Public Access to Private Land in Scotland (Potchefstroom Electronic Law Journal) on SSRN. Here's the abstract:
article attempts to understand the radical reform of Scottish land law
in its provision for a general right of public access to private land
introduced in 2003 as part of land reform legislation, an important
aspect of the initial agenda of the Scottish Parliament revived in 1999.
The right is to recreational access for a limited period and the right
to cross land. Access can be taken only on foot or by horse or bicycle.
As a starting point clarification of the misunderstood pre-reform position is attempted. The essential point is that Scots common law does not give civil damages for a simple act of trespass (as English law does) but only a right to obtain removal of the trespasser. Under the reforms the longstanding Scottish position of landowners allowing walkers access to the hills and mountains becomes a legal right.
A critical aspect of the new right is that it is one of responsible access; provided a landowner co-operates with the spirit and system of the Act access can be denied on the basis that it is not being exercised responsibly. But the onus is on the landowner to show that the exercise of the right is not responsible.
Although the right applies to all land a general exception protects the privacy of a domestic dwelling. Early case law suggests that the scope of this limit depends upon particular circumstances although reasonable 'garden ground' is likely to be protected. There are various particular limits such as school land.
Compliance with the protection of property under the European Convention on Human Rights is discussed. The article emphasizes the latitude, open to nations, for limitations to the right of ownership in land in the public interest. The extent of the Scottish access inroad illustrates this. This leads to the conclusion that 'land governance' – the subject of the Potchefstroom Conference at which the paper was initially presented – largely remains a matter for domestic law; the lex situs concept is alive and well.
Monday, September 17, 2012
I love state archives. They are valuable resources for my genealogical research, but they are also wonderful sources of information for those interested in issues at the convergence of legal history and property. So I'm sad to see that budget cuts in Georgia have led to the closure of the state archives to the public. You can read the governor's announcement here.
After November 1, 2012, researchers will only be able to access the state archives by appointment, and then only to the extent that the remaining staff has the time to assist them. If you have been putting off any research in the Georgia state archives, I suggest you head to Morrow before the end of October.
There is a fascinating story from New Zealand regarding an agreement between the government and the Whanganui River iwi (a group of Maori who live near the river) to grant the Whanganui River status as an entity under New Zealand law. "A spokesman for the Minister of Treaty Negotiations said Whanganui River will be recognised as a person when it comes to the law - 'in the same way a company is, which will give it rights and interests'." The river will be protected by two guardians, one representing the Crown, and the other representing the iwi.
The Whanganui River is the third longest river on the North Island of New Zealand. It has been subject to ongoing court battles between the Crown and the Maori since at least 1873. The area around the Whanganui River was heavily populated by Maori prior to the arrival of the Europeans, and the mouth of the river became an important trading post and European settlement. Efforts have been made for the past several decades to dam the river for hydropower. Those efforts have been heavily contested by the Whanganui River Maori Trust Board and environmentalists.
Thank you to Dan Ernst for the story tip!
Nate Berg at the Atlantic Cities blog looks at David Cameron's attempt to role back local land-use regulations:
Kickstarting the United Kingdom's economy, according to Prime Minister David Cameron, "starts with getting the planners off our backs." Regulations holding back building projects are also holding back the economy, Cameron said recently on a morning TV news show (which was then quoted by this article from the BBC).
The Prime Minister says planning regulations have apparently prevented many people from taking on home improvement projects and room extensions, such as the expansion of kitchens or the building of "conservatories." Officials are hoping to ease the planning regulations that are supposedly holding these projects back by allowing any home extension project up to 8 meters to go ahead without planning approval for a one year period.
Benito Arruñada has recently published Institutional Foundations of Impersonal Exchange Theory and Policy of Contractual Registries (University of Chicago Press). Here's the publisher's abstract:
Governments and development agencies spend considerable resources building property and company registries to protect property rights. When these efforts succeed, owners feel secure enough to invest in their property and banks are able use it as collateral for credit. Similarly, firms prosper when entrepreneurs can transform their firms into legal entities and thus contract more safely. Unfortunately, developing registries is harder than it may seem to observers, especially in developed countries, where registries are often taken for granted. As a result, policies in this area usually disappoint.
Benito Arruñada aims to avoid such failures by deepening our understanding of both the value of registries and the organizational requirements for constructing them. Presenting a theory of how registries strengthen property rights and reduce transaction costs, he analyzes the major trade-offs and proposes principles for successfully building registries in countries at different stages of development. Arruñada focuses on land and company registries, explaining the difficulties they face, including current challenges like the subprime mortgage crisis in the United States and the dubious efforts made in developing countries toward universal land titling. Broadening the account, he extends his analytical framework to other registries, including intellectual property and organized exchanges of financial derivatives. With its nuanced presentation of the theoretical and practical implications, Institutional Foundations of Impersonal Exchange significantly expands our understanding of how public registries facilitate economic growth.
Friday, September 14, 2012
The N.Y. Times tries to explain the surge in prices for the most luxurious apartments the nation's biggest cities:
If it’s $100 million, is it art? [...] Sales at such stratospheric levels in Manhattan, as well as records in certain neighborhoods in Miami, Los Angeles and a few other pockets isolated from the nationwide collapse in real estate prices, have left real estate professionals struggling to explain the surge. Art may be the answer. “Art is what people are willing to pay for, and an apartment like this is like a piece of art,” [said] the Long Island real estate developer Steven Klar [...]
“At some point, it falls apart,” he said. Art and real estate “are very different. The assets are different, the liquidity is different. Still, as the art market has become increasingly global, people are looking at art as an asset because the values have increased so much. People have always considered their home as an asset. If they see it’s worth $50 million, they’re even more likely to consider it an asset. So you can see the markets converging.”
Vicki Been (NYU) and John Infranca (Furman Center for Real Estate and Urban Policy) have posted Transferable Development Rights Programs as 'Post' Zoning (Brooklyn Law Review) on SSRN:
This Essay, written for the David G. Trager Public Policy Symposium at Brooklyn Law School, examines the changing role of transferable development rights (TDRs) in New York City. TDR programs allow property owners to sell unused development capacity at their property and transfer it to another site, where it is typically used to increase the permitted size of a development. New York City’s original TDR programs served two central purposes. First, in the form of Zoning Lot Mergers, they operated as a form of density zoning, allowing property owners to shift development capacity within a defined area. Second, they served to offset the burdens imposed by restrictions on development, particularly landmark preservation regulations. In recent years, TDRs have been used in increasingly sophisticated ways. In reviewing these newer TDR programs, we identify three common attributes: an increased focus on directing the location and density at sites that receive development rights; the use of TDRs as an integral component of more comprehensive rezoning initiatives; and the creation of regulatory incentives that strengthen the market for TDRs. We conclude that TDRs in New York can no longer be understood just as a creative mechanism to soften the effect of rigid zoning restrictions, but should be recognized as well as a tool land use decision makers can use in place of, or in tandem with, upzonings, bonuses, and other devices for increasing density.
Thursday, September 13, 2012
The L.A. Times details how land use disputes have left some cities on shaky financial ground:
[H]efty legal costs from land battles are a widespread problem in cities across California. Peacocks, radio antennas, strip clubs and landslides have all sparked high-profile cases, as well as the more common suits — such as the one in Mammoth Lakes — by developers who were denied approval for a project or neighbors and environmentalists trying to stall big-box stores or large residential projects on sensitive land.
These cases often drag on for years, sometimes consuming millions of dollars in legal bills even before the issues are resolved. A Times review found that in several Los Angeles County cities, land-use litigation amounted to the lion's share of their legal bills.
Margaret Brinig (Notre Dame) has posted Grandparents and Accessory Dwelling Units: Preserving Intimacy and Independence on SSRN. Here's the abstract:
around the United States (and, to varying degrees, in Canada, Britain,
and Australia), today confront a problem that people did not envision
twenty or even ten years ago, when municipalities heavily favored
single-family residences, and were permitted to exclude other forms
under what is known as Euclidean zoning. Currently, the issue of whether
to allow owners in single family-zoned neighborhoods to build living
spaces that might house elderly relatives or their caregivers is being
hotly contested in New York, Los Angeles, and Chicago, and made recent
news in Ft. Worth, Texas, and Arlington, Virginia. Legislative
responses have varied from wholesale acceptance, including subsidies,
loans, and waiving of permit fees; to outright prohibition.
While other ongoing work asks the question of why the issue has become contested, why we see the wide variety of responses (even in a single state), and what interest groups are behind proponents and opponents, this paper considers the family connection with alternative dwelling units (ADUs). Does living near to but not with their children solve a particular problem for many elderly citizens, or does living in this form of housing reduce their well-being? Even assuming grandparents are better off, what about their children and grandchildren?
Wednesday, September 12, 2012
English archaelogists are reporting that there is "strong evidence" that the remains of Richard III (2 October 1452 – 22 August 1485), the last member of the Plantagenet dynasty to rule England, have been found under a parking lot in London. Richard is best known, perhaps inaccurately, for causing the deaths of his young nephews, the so-called "Princes in the Tower." Made Lord Protector of England in 1483 following the death of his older brother King Edward IV, Richard took charge of the 12 year old Edward and 10 year old Richard, who both outranked him in the line of succession. But the marriage of Edward IV and the boys' mother, Elizabeth Woodville, was declared invalid after the boys disappeared in Richard's care, and the next day, Richard III was crowned. Unpopular and perceived as weak, Richard faced strong opposition from other nobles and died in 1485 at the Battle of Bosworth Field, when Henry Tudor's armies were triumphant. Richard's death marked the last time a King of England was killed in battle and launched the still-fascinating Tudor dynasty.
Coolest thing about the video below -- there appear to be knights guarding the remains. Real knights!
The 1933 Double Eagle, designed by Augustus Saint-Gaudens, is the most valuable coin in the world. One recently sold at auction for $7.59 million. The coins are sought after for their beauty and because they are so incredibly rare.
Why are the coins so rare? It seems that most were intentionally destroyed by the U.S. government. As part of the plan to remove the U.S. from the gold standard, The Gold Reserve Act of 1934 outlawed the private possesssion of gold. The 1933 gold Double Eagles, which had been struck but not released to the public, were subsequently melted down and turned into gold bars.
Unbeknownst to officials at the Mint, however, a handful of the coins were stolen and ended up in the hands of Israel Switt, a Philadelphia jeweler.
Ten of these coins surfaced in 2010, in a safety deposit box owned by Switt's family. Discovering the stash, the government seized the bullion without compensating the family.
The Family sued. In 2011, a jury decided that the coins belonged to the government. Last week, Judge Legrome Davis of the Eastern District Court of Pennsylvania, affirmed that decision on appeal, saying "the coins in question were not lawfully removed from the United States Mint."
The family's attorney recently told ABCNews.com, "This is a case that raises many novel legal questions, including the limits on the government's power to confiscate property. The . . . family will be filing an appeal and looks forward to addressing these important issues before the 3rd Circuit."
The good folks at William & Mary have announced that James Krier (Michigan) will receive the Brigham-Kanner Prize at the annual Brigham-Kanner Property Rights Conference at William and Mary on October 10 and 11. In addition to co-authoring the nation's leading property casebook, Professor Krier has done pioneering work on the evolution of property rights, takings, and environmental law. The august list of speakers at the conference can be found here
Jonathan Adler (Case Western) has posted Wetlands, Property Rights, and the Due Process Deficit in Environmental Law (Cato Supreme Court Review) on SSRN. Here's the abstract:
In Sackett v. Environmental Protection Agency a unanimous Supreme Court held that private landowners could seek judicial review of an Administrative Compliance Order issued by the Environmental Protection Agency alleging that their land contained wetlands subject to regulation under the Clean Water Act. The Court’s decision rested on statutory grounds, but the same result may have been dictated by principles of due process. Under the CWA, federal regulators have asserted authority over waters and dry lands alike and sought to expand federal jurisdiction well beyond constitutional limits. Under existing regulations, landowners have little notice or certainty as to whose lands are covered, under what authority, or with what effect. As a consequence, federal wetlands regulations, as currently practiced, violates important due process principles.
Tuesday, September 11, 2012
Professors’ Corner is a monthly free teleconference sponsored by the ABA Real Property, Trust and Estate Law Section's Legal Education and Uniform Laws Group. Each month’s call features a panel of three law professors who discuss property cases of interest to practitioners and scholars. This month's call will be on Wednesday, September 12, 2012, at 12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a.m. Pacific).
Call-in number: 866-646-6488
September 2012’s program is titled "Astrue v Capato: Its Implicatons for Estate Planners." The panel will address Astrue v. Capato, the recent Supreme Court decision addressing the rights of posthumously conceived children to receive Social Security benefits. Panelists will include Professor Kristine Knaplund (Pepperdine University School of Law), Professor Sheldon Kurtz (University of Iowa School of Law), and Carole Bass (SNR Denton, New York).
This is a fascinating case and a great panel -- please join us!
Foreign Policy takes a look at the situation in Yemen, where technological changes, outdated government regulations, and a lack of clear property rights have contributed to a rapid depletion of the country's water resources:
In a 2010 report commissioned by the Yemeni government, analysts at U.S. consultancy McKinsey forecast that if water use in the Sanaa basin was not controlled, the area could completely run out of water by about 2020. [...]
"The main reason is the uncontrolled use of technology, drilling wells, installing water pumps and not having any control over the quantity being pumped out," he explains. "Yemeni farmers are, by their culture, rain fed farmers . . . . The new technology made people think there was a sea under the ground. Pump as much as you can and there will be no limit to the water." The situation is exacerbated by a lack of regulation and huge government fuel subsidies, which make producing water using pumps relatively cheap, Schoenewald says. If the subsidies weren't in place, people would not be able to turn as much of a profit from irrigating crops, which accounts for 90 percent of all water use in Yemen.
Nick Blomley (Simon Fraser - Canada) has posted Disentangling Property, Making Space (Book Chapter) on SSRN. Here's the abstract:
from performativity theory in order to understand the process of
surveying and its implication in the remaking of property and space in
early modern England, drawing in particular on John Norden’s ‘The
Surveyor’s Dialogue’ (1607, 1610, 1618). Early modern surveying, I
argue, sought to perform property through a series of enrolments and
alliances, hooking up “professionals”, paper, theodolites, Euclid, the
eye, and so on. But such enrolments, entailing both objects and humans,
are not a given, but were bedevilled by the social politics of
professionalism, the slippages of the human/machine composite, and the
multiplicity of discourses around land.
Crucially, the attempt is to re-perform property through a disentangling, a severing of property from local obligations and association and the attempted installation of a model of property as interchangeable, mobile and abstract. Most immediately, property is re-imagined as a geometric, calculable space. To say that this distorts the realities of property, or to characterize this as an “abstraction” is to misconceive the survey: it participates in a reformatting of property (and, in so doing, helps constitute the very divide between “representation” and “reality” that makes such critiques possible). The success with which this performance of property occurs can be assessed less by the verity of its representations than by the degree to which it is able to constitute a terrain within which its representations are truthful. But such a terrain is not a given, but has to be actively made.