PropertyProf Blog

New New Amsterdam

Matt Yglesias looks at how rising sea levels will force nations to rethink coastal property:

The idea of essentially damning up New York Harbor sounds extreme, but that's equivalent to what the Dutch did with the Zuiderzee Works and especially the Delta Works projects undertaken after the 1953 flood. Some of the Dutch works are permanent dijks, but others are open sluices that merely shut when storms are coming to block surges. The idea is to in effect shorten your coastline which makes it easier to defend with high walls.

You could imagine something similar at the Arthur Kill and across the Verazano Narrows or even between Sandy Hook and Rockaway. Projects like that wouldn't immunize Staten Island or the beachfront parts of Brooklyn and Queens from storm surges but they would defend Lower Manhattan, the badly flooded Red Hook part of Brooklyn, Long Island City, LaGuardia Airport, and a big swathe of New Jersey.

Steve Clowney

Tirres on Non-Citizens & Property Rights

Allison Brownell Tirres (Depaul) has posted Property Outliers: Non-Citizens, Property Rights and State Power (Georgetown Immigration Law Journal) on SSRN.  Here's the abstract:

In the last decade, state and local governments have passed thousands of laws attempting to regulate immigrants within their boundaries. These regulations have been the subject of much litigation, as well as media attention and legal scholarship. Legal scholars have written extensively on the criminal and employment provisions of such laws, as well as on the general question of whether states can or should have any role to play in immigration law. Missing from most accounts, however, is attention to another common focus of these state and local regulations: property law. When we look at the role that property plays in state immigration regulation, we uncover some surprising and troubling truths. The area is a legal muddle, characterized by incoherent and inconsistent court rulings. These inconsistencies leave significant gaps in the protection of non-citizen property rights, not only for unauthorized immigrants but also for legally resident ones. This article draws much-needed attention to these gaps. It compares the two major areas of state regulation of non-citizen property: real estate and landlord/tenant law. A comparison of case law in these two areas demonstrates that the courts have failed in the last century to create a coherent framework for the assessing the relationship between non-citizens, property, and state power. I argue that the resulting inconsistencies stem, in part, from the failure of the courts to take into account a property perspective. I suggest what a property perspective would look like, drawing in particular on the core principles of alienability, equality and non-discrimination. This article posits that alienage law is a property outlier, since few of the norms of modern property law have been applied to non-citizens. We should be concerned about this fact, not only because of what it says about the weakness of non-citizen rights but also because of its implications for the failed modernization of property law.

Steve Clowney

The Largest Chunk of Undeveloped Property in L.A.

The L.A. Times has a fascinating story on the Corralitas Red Car property, which is the largest piece of undeveloped land in Los Angeles that's zoned for residential use:

The land, a nearly mile-long strip east of the lake, takes about 30 minutes to walk . . . and is only 100 feet wide in some spots. Its canopy of trees blocks the Southern California sun and serves as a sound barrier, with the hollow whir of tires on concrete replaced by chirping birds. [...]

The property was once part of a Pacific Electric streetcar line, which ran from downtown and cut through Silver Lake en route to Glendale and Burbank. Pacific Electric owned two lines, the green car line and the red car line. The red car line was decommissioned in 1955, and the Silver Lake property was returned to its private owner. Since then, at least one owner sought to subdivide the five-parcel lot for development, which is now zoned for duplexes.

More information on the history of the lot can be found here.

Steve Clowney

Osofsky on Litigation Over Oil Extraction and Rights Violations in Nigeria

Hari Osofsky (Minnesota) has posted Climate Change and Environmental Justice: Reflections on Litigation Over Oil Extraction and Rights Violations in Nigeria (Journal of Human Rights and the Environment) on SSRN.  Here's the abstract:

This article uses developments in three cases claiming environmental harm and human rights violations arising from Shell Oil’s operations in Nigeria – brought in the United States, the Netherlands, and Nigeria – to explore the complex intersection of transnational corporate responsibility, environmental justice, and climate change. It considers the nature of environmental rights violations in general and those in Nigeria in particular, the barriers to addressing these problems through law, and the ways in which the problem of climate change intersects with these justice dilemmas. The article takes an interdisciplinary law and geography approach to these issues, analyzing how the way in which we view the nation-state, the multinational corporation, and their interrelationship influences our understanding of the state–corporate relationships in, and justice implications of, these situations. It argues that whether we treat Nigeria and Shell Oil as enclosed, permeable, or enmeshed spaces limits or expands the ways in which these cases might fit into broader environmental justice strategies. The article concludes with an assessment of how future efforts might build upon these cases and this analysis of their implications.

Steve Clowney

Urbanism Goes Boo

City Planner Brent Toderian explains why Halloween is his favorite holiday:

        [I]t's the holiday most dependent on how we design and build our communities.

In city planning and design, there's an old saying about the "Trick-or-Treat Test." It's often brought up in the context in suburban home design: Can kids easily find the front door to your house, or must they poke behind the huge multi-car garage, past the parking asphalt, to ring your bell? Homes that fail this Trick-or-Treat Test aren't exactly welcoming, and not just on Halloween.

Steve Clowney

10 Must-See Campuses for Fall Foliage

Schools.com picks its top-ten fall-worthy campuses.

Steve Clowney

Sprankling on the Property Jurisprudence of Justice Kennedy

John Sprankling (McGeorge) has posted The Property Jurisprudence of Justice Kennedy (McGeorge Law Review) on SSRN.  Here's the abstrac:

Scholars have largely neglected Justice Kennedy’s property jurisprudence, a surprising omission given his pivotal role on the Supreme Court. This essay explores three aspects of his jurisprudence which distinguish him from other current Justices: (1) his tendency to approach property disputes from the perspective of liberty; (2) his effort to address the tension between natural law theory and legal positivism in defining “property”; and (3) his attempt to resist the expansion of regulatory takings jurisprudence by channeling some disputes toward resolution under the Due Process Clause.

Steve Clowney 

The Rise of Geography

In the New Yorker, Adam Gopnick traces the growing importance of thinking about place and space:

The new space history has one great virtue. It forces upon historians, the amateurs we all are as well as the pros we read, a little more humility. American prosperity looks like a function of virtue and energy, but the geographic turn tells us that it’s mostly a function of white people with guns owning a giant chunk of well-irrigated, very well-harbored real estate off the edge of the World Island, bordering a hot land on one side and a cold one on the other. Really, you can’t miss. Our geographic truth enters our songs and sagas even if it evades our sermons: O beautiful for spacious skies, for amber waves of grain, for purple mountain majesties, above the fruited plain; this land is my land, from the redwood forest to the gulf-stream waters. The geographic truth beneath our prosperity is as naturally sung by our bards as the olive oils and wine-dark sea at the heart of Greek culture were sung by theirs.

Steve Clowney

Rose on Property and Emerging Environmental Issues

Carol Rose (Arizona/Yale) has posted Property and Emerging Environmental Issues - the Optimists vs. The Pessimists on SSRN.  Here's the abstract:

Can property rights and markets address environmental issues? Some say yes and some say no. This article tracks the debate through several iterations, beginning with the 1980 bet between by the biologist Paul Ehrlich and the economist Julian Simon. The former bet that the world was exhausting its natural capital and that a particular basket of minerals would therefore increase in price, while the latter bet that human ingenuity would substitute for natural capital and make prices fall. The optimistic Simon won that bet, but another version of the debate was soon to come, with free market environmentalists asserting that property and markets can evolve even for diffuse environmental resources. But more pessimistic commentators point out that success is not assured, and that social and political factors, and even past property rights regimes, can present substantial obstacles. The upshot appears to be that if one is to be optimistic about property and market approaches, one must be optimistic about social and political factors as well.

Steve Clowney

Privately Owned Public Spaces

The Architect's Newspaper takes a look at the attempt to catalogue and publicize New York's privately owned public spaces (POPS).  POPS, which entered the public consciousness during the fervor over Occupy Wall Street (Zuccotti Park is a privately owned public space) were introduced to New York in a 1961 zoning resolution. The city offers zoning concessions developers if they make spaces accessible to the public. There are currently over 500 POPS in New York City, ranging from extended sidewalks to fancy indoor atriums, most of which are located in Manhattan.

Steve Clowney

A History of Map Monsters

For all you map buffs: Ken Jennings (of Jeopardy fame) has posted a visual history of the monsters that appear on early world maps.

Steve Clowney

Oberman on the Morality of Theft

Kieran Oberman (University College Dublin) has posted Is Theft Wrong? on SSRN.  Here's the abstract:

Most people think that the actual distribution of property poorly reflects what people are morally entitled. Were wealth to be justly distributed, some people would have more than they currently possess; others, less. Theft is one means by which a more just distribution could be pursued. Those who currently have less than their due could take from those that have more. Yet most people also think that theft is wrong, even when it redistributes wealth in the direction of justice. This article investigates why. It examines three arguments against redistributive theft: that (1) it is illegal, (2) disruptive of legitimate expectations and (3) undemocratic. All three arguments are shown to fail. The conclusion the article reaches is a surprising one. Theft is not always wrong. In fact it seems to be justified whenever it is an effective, proportionate and necessary means to pursue distributive justice.

Steve Clowney

Manta on the "Reasonable Man" Standard in the Copyright Context

Irina Manta (Hofstra) has posted Reasonable Copyright (Boston College Law Review) on SSRN.  Here's the abstract:

Using the lens of the cognitive bias literature, this article examines and critiques the “reasonable man” standard found across a wide range of legal doctrines. I focus on the use of the standard in an extremely fuzzy area of the law: the law of copyright. In copyright, the test for infringement is whether a “reasonable observer” would believe that two works — often involving media that do not lend themselves to precise measurement — are substantially similar. I begin by exploring and casting doubt on the usefulness of the reasonable man standard in such a setting. Are judges and juries truly able to determine what an abstract reasonable actor would find substantially similar in the comparison of two works? What types of cognitive biases will likely cloud this determination? And are biases likely to have a stronger or weaker effect when infringement questions are subjected to group deliberation, such as within a jury, as opposed to the individual decision-making of judges? Next, I address the problems that I uncover in the copyright context by first reviewing some potential solutions including both a proposal to reduce the role of juries in substantial similarity determinations and the possibility of trial bifurcation. Ultimately, I show that an openly subjective standard that focuses on the intended audience of works and uses social science surveys as evidence of infringement should replace the prevalent “objective” reasonable observer standard. Implementing such a solution would at least partially acknowledge that we are dealing not with perfectly reasonable but rather boundedly rational actors.

Steve Clowney

Categorical Rules in Takings Law

Over at the Environmental Law Prof Blog, Dave Owen has a post suggesting that the Supreme Court's recent activity around the Takings Clause may reflect the Justices’ discomfort with categorical rules:

For years, the Court’s takings decisions have sought to resolve a few tensions.  [One] prominent tension has been between the desire for clear, readily applicable rules, which theoretically will supply greater predictability and consistency, and more ad-hoc standards, which theoretically will better promote individualized justice.

Lawyers who think about takings have grown accustomed to perceiving the anti-regulatory agenda and the clarity agenda as aligned.  [...] The last few years, however, have produced a few cases that don’t fit with that traditional perception.  In Stop the Beach Renourishment v. Florida Department of Environmental Protection, one key question was whether a so-called “judicial taking” is possible.  Justice Scalia’s plurality opinion endorsed the idea that judicial takings could exist, thus rejecting a potentially clear and categorical rule against judicial takings.  Last week, the Court heard oral argument in Arkansas Game & Fish Commission v. United States.  The case arose because management of a federal water project allegedly caused extensive and damaging, but also temporary, flooding of state land.  Prior decisions seemed to endorse a categorical rule that such flooding couldn’t be the basis for a takings claim—the remedies instead lie in tort law—but at oral argument, the conservative justices seemed skeptical of that rule.  Finally, in Koontz, one key issue is whether a monetary exaction can be categorically excluded from the Dollan exaction test (the other key question is whether a “failed exaction”—that is, and exaction that is proposed but never imposed—can form the basis of a takings claim).   While no one outside the Court knows exactly why the Court granted cert, one reasonable hypothesis is that some of the justices are troubled by that categorical rule as well.

Tim Mulvaney responds here.

Steve Clowney

Lehavi on the Construction of Property in Philosophy, Law, and the Social Sciences

Amnon Lehavi (IDC - Herzliya) has posted Why Philosophers, Social Scientists, and Lawyers Think Differently about Property Rights on SSRN.  Here's the abstract:

Property is a powerful concept. It features prominently in academic and public discourse. But it is also a source of ongoing confusion. While some of this disarray may be attributed to the success of “disintegrative” normative agendas, much of it is the result of a methodological and conceptual disconnect both within and among different fields of study. Aimed at narrowing this gap, this Article analyzes the transformation of property from a moral and social concept into a legal construct. It seeks not to develop a historical or intellectual account of such an evolution, but to analyze the institutional and structural features of property once it is incorporated into the legal realm.

The Article identifies the unique jurisprudential ingredients of a system of rules by which society allocates, governs, and enforces rights and duties among persons in relation to resources. It examines the work of decision-making institutions entrusted with the task of designing property norms over time. Clarifying the institutional and structural attributes of property does not require, however, adhering to a uniform body of substantive norms or to a single set of underlying values. Illuminating the construction of property allows rather for a better informed debate about the socially-desirable content of property rights.

Steve Clowney

Can Denser Cities Save Family Farms?

Claire Thompson looks at the use of Transferable Development Rights (TDRs) in Seattle, focusing on how they're being used to preserve farmland.

Steve Clowney

The World's Skinniest Home

The New York Times profiles the Keret House, a mere 28 inches across at its narrowest point:

What is Keret House like inside? Raucous parties are unlikely to happen there. The kitchenette is three feet wide (though that might not faze New Yorkers), with a miniature sink and a sliding door that conceals one of those cramped airplane bathrooms. The second floor, reached by a ladder, holds a bed whose dimensions do not encourage overnight guests.

The downstairs living area is the skinniest spot in the house, 35 inches wide. But a claustrophobe can take comfort that it also has the highest ceilings and “gets plenty of eastern light,” from one of two windows, Mr. Szczesny said. The architect used semitransparent plastic for the roof, rather than concrete, to bring in additional light and create a sense of space.

A helpful slideshow accompanies the story.

Steve Clowney

Ayres & Mitts on Regulating the Distribution of Home Equity

Ian Ayres (Yale) and Joshua Mitts (Yale - student) have posted Three Proposals for Regulating the Distribution of Home Equity on SSRN.  Here's the abstract:

Micro-lending decisions about four specific kinds of mortgage terms when present in a substantial cluster of mortgage contracts can exacerbate macroeconomic risk by increasing the chance that the housing and lending markets will have to absorb a wave of simultaneous defaults after a downturn in housing prices. These four volatility-inducing terms – low down payments, deferred or non-amortizing principals, balloon payments, and interest rate resets – increase the risk of lender default by increasing the chance that either the borrower will stop making payments on a mortgage with negative equity or that lenders will refuse to refinance loan principles with negative equity. In contrast, during the 'amortization era' (when mortgagors were more likely to borrow at different times, with more substantial down payments, and more continual rates of amortization, without a need to refinance), an equally sized negative shock to housing prices would likely produce less negative equity, to a smaller set of borrowers. Instead of prohibiting the volatility-inducing terms, we propose three policies to better assure a greater diversification in the distribution of equity: a modified home-mortgage interest deduction; a modified risk-retention requirement under Dodd-Frank; and most importantly, a system of leverage licenses. Limiting the simultaneous clustering of negative equity mortgages can reproduce the structural advantages that were a natural byproduct of the amortization era where inevitable downturns would disparately affect homeowners with different levels of equity.

Steve Clowney

Virginia's Eminent Domain Reform Referendum

Ilya Somin unpacks an editorial on the upcoming referendum:

In Friday’s Washington Post, state legislators Scott Surovell and Linda Puller published an op ed attacking Question 1, the eminent domain reform referendum question that Virginians will vote on in November. Unfortunately, their arguments are off-base, and some are seriously misleading.

Question 1 would amend Virginia’s Constitution to forbid economic development takings of the kind the US Supreme Court allowed in Kelo v. City of New London. Such takings often enable powerful interest groups to use the power of eminent domain to transfer property to themselves at the expense of the politically weak; they also tend to destroy more economic value than they create. If adopted by the voters, Question 1 would provide some important protection against such abuses.

Steve Clowney

L.A. Developer Ordered to Let Hikers Use Trail on His Land

Mohamed Hadid, who has bult more than a dozen Ritz-Carlton hotels and lots of mega-mansions in Beverly Hills, bought 97 acres of property on a ridgeline outside of L.A.  Unfortunately, it doesn't seem like Hadid did a very thorough investigation of the property before the real estate closing.  It turns out that the popular Hastain Trail, well-used by local hikers, runs arcoss a third of the property.  When Hadid tried to erect fences across the trial, grassroots groups sued and won a victory in state court.  According to one source:

In California, private land that is in continuous use by the public for five years is automatically considered a public easement if the private owner doesn’t do anything in that five year period, or if the land has a history of public use. When Hadid purchased the land in the early 2000s, the public right of way was already well-established. A similar case is being worked out with Runyon Canyon‘s infamous Pink House.

Steve Clowney