Friday, January 18, 2013

Caron & Repetti on the Estate Tax & Inequality

Paul Caron (Cincinnati) and James Repetti (Boston College) have posted Occupy the Tax Code: Using the Estate Tax to Reduce Inequality (Pepperdine Law Review) on SSRN. Here's the abstract:

Inequality has been increasing in the United States. We should care about this increase because inequality contributes to a variety of adverse social consequences that persist across generations. There is also substantial empirical evidence that inequality has a long-term negative impact on economic growth.

For many decades, federal tax policy has played an important role in reducing inequality, although the impact of federal taxes on inequality has waxed and waned depending on the focus of elected officials. We argue that the estate tax is a particularly apt vehicle to reduce inequality because inheritances are a major source of wealth among the rich, and studies suggest that inherited wealth has a more deleterious impact on economic growth than inequality caused by self-made wealth. Although there are loopholes in the estate tax, it is still effective in moderating the amount of wealth that is passed within a family from generation to generation.

The major criticism about the estate tax — that it discourages savings — is inaccurate. Standard tax theory cannot predict the impact of the estate tax on savings and the empirical evidence is mixed. Moreover, the estate tax has a less harmful impact on savings than the income tax for two reasons. First, the event that triggers estate tax liability — death — is ignored by taxpayers during the period of life in which they are likely to be most productive. Second, the expected value of the estate tax’s effective rate is quite low during the period of life in which most taxpayers create wealth.

Steve Clowney

January 18, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, January 17, 2013

Preservation, Miami Style

The New York Times reports on a new push to tighten preservation laws in Miami:

When South Beach was little more than a forlorn chunk of beachfront property, preservationists clung to the idea that the faded, often derelict pastel buildings lining the streets were too precious to knock down.  Their campaign to preserve the area’s fanciful Art Deco buildings ushered in one of the country’s most successful urban revivals. Years later, South Beach is still a juggernaut.

Preservationists are now pushing hard to bolster historic preservation laws, a move that has ruffled wealthy property owners (and potential buyers) and stepped up pressure on local commissioners who are reluctant to wade into the politically precarious battle.

Steve Clowney

January 17, 2013 | Permalink | Comments (0) | TrackBack (0)

Miller on Area of City Impact Agreements

SmillertimeStephen Miller (Idaho) has posted Area of City Impact Agreements on SSRN.  Here's the abstract:

Area of city impact agreements, or growth management tools negotiated between cities and counties, are required by Idaho Code section 67-6526 “to delineate areas of future contiguous growth in order to assure their orderly development and thereby reconcile potentially competing designs for boundary expansion with accepted land use planning principles.” City of Garden City v. City of Boise, 104 Idaho 512, 514 (1983).

In Fall, 2012, the University of Idaho College of Law’s Economic Development Clinic worked with a coalition of partners to review existing area of city impact agreements. The Clinic obtained 125 area of city impact agreements, one of the largest collections of local government agreements addressing growth management ever assembled in Idaho, and likely anywhere in the country. Based upon its research, the Clinic drafted this report with detailed guidance for Idaho cities and counties negotiating future area of city impact agreements. Outside of Idaho, this report will be of use to state and local government law and land use law scholars interested in growth management, smart growth, and extra-territorial powers of cities. The Clinic's guidance document and the original agreements are available in this file.

Steve Clowney

January 17, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 16, 2013

World's Largest Hole For Sale

Kochan on Utah's “Transfer of Public Lands Act"

Kochan_DDonald Kochan (Chapman) has posted A Legal Overview of Utah's H.B. 148 – The Transfer of Public Lands Act on SSRN.  Here's the abstract:

Recent legislation passed in March 2012 in the State of Utah – the “Transfer of Public Lands Act and Related Study,” (“TPLA”) also commonly referred to House Bill 148 (“H.B. 148”) – has demanded that the federal government, by December 31, 2014, “extinguish title” to certain public lands that the federal government currently holds (totaling an estimated more than 20 million acres). It also calls for the transfer of such acreage to the State and establishes procedures for the development of a management regime for this increased state portfolio of land holdings resulting from the transfer.

The State of Utah claims that the federal government made promises to it (at statehood when the federal government obtained the lands) that the federal ownership would be of limited duration and that the bulk of those lands would be timely disposed of by the federal government into private ownership or otherwise returned to the State. Longstanding precedents support the theory that Utah’s Enabling Act is a bilateral compact between the State and the federal government that should be treated like it is, and interpreted as, a binding contractual agreement.

As Utah’s Governor Herbert has noted, the legal case for H.B. 148 may not be a “slam dunk,” but there are credible legal arguments supporting Utah’s demand that the federal government extinguish certain public lands within the State. At the very least, it seems clear that the law is not “clearly” unconstitutional as some opponents contend. Much of what is being discussed as “precedent” against the TPLA is dicta.

Utah’s TPLA presents fascinating issues for the areas of public lands, natural resources, federalism, contracts, and constitutional law. It represents a new chapter in the long book of wrangling between states in the west and the federal government over natural resources and public lands ownership, control, and management. The impact is potentially considerable – thirty-one percent of our nation’s lands are owned by the federal government and 63.9 percent of the lands in Utah are owned by the federal government.

This White Paper provides an overview of the legal arguments on both sides of the TPLA debate. In the end, there is a credible case that rules of construction favor an interpretation of the Utah Enabling Act that includes some form of a duty to dispose on the part of the federal government. Other theories may also support the TPLA. At a minimum, the legal arguments in favor of the TPLA are serious and, if taken seriously, the TPLA presents an opportunity for further clarification of public lands law and the relationship between the states and the federal government regarding those lands. Moreover, as other states are exploring similar avenues to assert their claims vis-à-vis the federal government and are in various stages of developing land transfer strategies that will model or learn from the TPLA. That fact further underscores the need for a renewed serious and informed legal discussion on the issues related to disposal obligations of the federal government. This White Paper takes a first step into that discussion.

Steve Clowney

January 16, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 15, 2013

Foreclosure Settlement Announced


Last week, the government announced that ten of the country's largest banks have agreed to pay $8.5 billion to settle claims that they improperly foreclosed on homeowners during the height of the housing crisis. The settlement stems from the way that companies like  J.P. Morgan, Bank of America, and Wells Fargo improperly foreclosured on homes during 2009 and 2010. A little more than $3 billion will go be paid to borrowers who were foreclosed on during those years. Another $5 billion is set aside for other assistance to homeowners who are currently having trouble.

Steve Clowney

January 15, 2013 | Permalink | Comments (0) | TrackBack (0)

Property Movies!

Here are a few more property movies suggested by readers of the blog.  Special thanks to University of Kentucky law librarian, Ryan Valentin, for digging most of these up:

Battle for Brooklyn: Battle for Brooklyn' follows the story of reluctant activist Daniel Goldstein as he struggles to save his home and community from being demolished to make way for the densest real estate development in U.S. history.
 
Begging for Billionaires: Explores the erosion of private property rights in United States and exposes how municipal governments use tax money and abusive eminent domain policies to aid private developers and corporations.
 
Urbanized: A documentary about the design of cities, which looks at the issues and strategies behind urban design and features some of the world's foremost architects, planners, policymakers, builders, and thinkers.
 
Blueprint America: Road to the Future: An original documentary part of a PBS multi-platform series on the country's aging and changing infrastructure, goes to three very different American cities - Denver, New York and Portland, and their surrounding suburbs - to look at each as an example of the challenges and possibilities the country faces as citizens, local and federal officials, and planners struggle to manage a growing America with innovative transportation and sustainable land use policies.
 
Making Sense of Place – Portland: Quest for the Livable City: As cities across the country today attempt to reduce greenhouse gas emissions, invest in transit, and focus on infill redevelopment as an alternative to car-dependent sprawl, the experience of Portland provides a cautionary tale for planning in the 21st century, involving issues of economic development, gentrification, local food and farming, property rights, and civic participation.
 
Land and how it gets that way: LAND presents a subtle story of competing interests in the conflict over conversion of rural land to suburban  housing developments.  By allowing the characters to speak for themselves, Brock engagingly presents land use conflict as human drama, not dry policy and planning decisions.

The Dust Bowl: Ken Burns film that chronicles the worst man-made ecological disaster in American history, in which the frenzied wheat boom of the "Great Plow-Up," followed by a decade-long drought during the 1930s nearly swept away the breadbasket of the nation.
 
The Next Best West: Tells the story of how the conventional American concept of progress has steered our exploitation of the Western landscape, and takes you to three places – Colorado’s San Luis Valley, the High Plains of Eastern Montana and the Elwha River on Washington’s Olympic Peninsula – where a vibrant new understanding of progress presages a better future.
 
We the Tiny House People: TV producer and Internet-video personality Kirsten Dirksen invites us on her journey into the tiny homes of people searching for simplicity
 
You’ve Been Trumped: In this David and Goliath story for the 21st century, a group of proud Scottish homeowners take on celebrity tycoon Donald Trump as he buys up one of Scotland's last wilderness areas to build a golf resort.

Steve Clowney

January 15, 2013 | Permalink | Comments (2) | TrackBack (0)

Monday, January 14, 2013

Map of the Day: How Far Can You Travel in a Day

Travelin1800

Mother Nature reproduces four maps from the Atlas of Historical Geography that dramatically demonstrate how travel changed in the U.S. between 1800 and the mid-1900s.  The website hosts maps (from 1800, 1830, 1857, and 1930) that show how long it took a person, leaving from New York City, to travel across the country. 

Steve Clowney

January 14, 2013 | Permalink | Comments (0) | TrackBack (0)

A Quick Foreclosure Process: The Secret to a Housing Recovery?

The Wall Street Journal looks at the link between efficient real estate foreclosures and the rebound of the housing market:

[T]he rebound is strongest in states that let lenders enforce contracts. We're referring to the difference between "nonjudicial" states that have streamlined foreclosure procedures and the 23 "judicial" states that force lenders to go to court to enforce mortgage contracts. Prices are stabilizing in the former but still faltering in much of the latter, which isn't surprising, except to politicians. Housing markets can't clear until lenders can foreclose on delinquent borrowers and prices fall far enough to attract buyers who can afford the mortgage payments.

Steve Clowney

January 14, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, January 11, 2013

Property Movies???

A reader of the blog asks the following question:

As a result of some family issues, I'm going to need to do a bunch of make-up classes in my property course this semester.  Are you aware of any short (less than an hour) movies that I could have the class watch during my absence?  I'm looking for something (fiction or non-ficiton) that actually grapples with significant property issues.  In other words, nothing like Body Heat.

Any thoughts?

Steve Clowney

January 11, 2013 | Permalink | Comments (2) | TrackBack (0)

What Happened to My 40 Acres and a Mule?

Henry Louis Gates looks at the origins (and eventual collapse) of the promise of 40 acres & a mule:

And what happened to this astonishingly visionary program, which would have fundamentally altered the course of American race relations? Andrew Johnson, Lincoln's successor and a sympathizer with the South, overturned the Order in the fall of 1865, and, as Barton Myers sadly concludes, "returned the land along the South Carolina, Georgia and Florida coasts to the planters who had originally owned it" -- to the very people who had declared war on the United States of America. 

Steve Clowney

January 11, 2013 | Permalink | Comments (2) | TrackBack (0)

Thursday, January 10, 2013

How NIMBYs "Greenmail" Developers

Curbed LA runs a scathing piece on "a practice sometimes called 'greenmail,' in which businesses and homeowners groups use the threat of [environmental] lawsuits to generate cash from developers for things that have nothing to do with the environment."

Curbed has a leaked settlement between the La Mirada Avenue Neighborhood Association and a local developer:

The leaked agreement states that the developer will pay to cover attorney's fees and costs: "[redacted] shall pay and deliver to La Mirada the sum of NINETY THOUSAND DOLLARS ($90,000) for La Mirada's costs, and attorney's fees and costs." The developer also agreed to pay a monitoring payment: "[redacted] shall pay to La Mirada Avenue Neighborhood Association of Hollywood the sum of TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000) to be used as La Mirada sees fit." In exchange for this payment, "La Mirada ... shall not commence, support, file, or participate in any administrative appeal of any litigation ... challenging or in any way attempting to interfere with or otherwise modify, limit or delay the Revise Project."

Steve Clowney

January 10, 2013 | Permalink | Comments (0) | TrackBack (0)

Claeys on Productive Use in Acquisition, Accession, and Labour Theory

Claeys_ericEric Claeys (George Mason) has posted Productive Use in Acquisition, Accession, and Labour Theory on SSRN.  Here's the abstract:

Contemporary American property scholarship is sceptical of Locke’s theory of labour. Robert Nozick (in Anarchy, State and Utopia (1974)) and Jeremy Waldron (in The Right to Private Property (1986)) are both assumed to have discredited Locke’s conception of labour. Locke’s theory seems incoherent because it seems to trade inconsistently on both rights-based and utilitarian components. And contemporary legal scholars are generally uninterested in how law implements moral theories of rights. In political-philosophy scholarship over the last generation, however, Locke’s theory of labour has been substantially rehabilitated. A more charitable line of scholarship construes Locke – like many natural-law or – rights thinkers before him – as propounding a rights-based theory justifying consequentialist reasoning to secure rights. In this scholarship, the moral right to labour seems more sensible because ‘labour’ is justified in relation to the responsibility to produce goods contributing to human self-preservation or – improvement.

This book chapter restates productive labour theory for contemporary legal scholars. The chapter shows how productive labour theory anticipates and avoids the most common sources of scepticism toward labour theory among contemporary legal scholars. The chapter also illustrates how productive labour supplies a moral foundation for legal property rights, some focus to those rights, and a substantial amount of flexibility how to qualify such rights. The chapter illustrates using: the acquisition doctrines for capturing chattels; the tort doctrine regulating disputes in which one appropriator interferes with another’s attempts to capture chattels; and the accession-related fixture and ratione soli rules, both of which take chattels out of the coverage of capture doctrine.

Steve Clowney

January 10, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 9, 2013

Buffy v. Edward Remix Reveals Copyright Issues on YouTube

If you've never seen the brilliant remix of Buffy, the Vampire Slayer and Twilight, which recasts the brooding romantic vampire Edward as a creepy stalker, and provides some pretty on-point commentary on the current teen paranormal romance genre, check it out here.

Even though the remix, which was first uploaded to YouTube three and a half years ago has received 3 million views on that site, it has been removed.  The creator, Jonathan McIntosh, recounts the exhausting and frustrating story on his website.  The upshot -- even though the remix was actually cited by the US Copyright Office as an example of transformative noncommercial video work -- YouTube will only respect fair use arguments if the copyright holder acknowledges them.

Jonathan acknowledges the valuable advice of New Media Rights, which is affiliated with California Western School of Law.  Check out their work here.

Tanya Marsh

January 9, 2013 in Intellectual Property | Permalink | Comments (0) | TrackBack (0)

Why Are There Vacant Storefronts?

Matt Yglesias asks some questions about the boarded up commerical property in San Diego:

Downtown San Diego, for example, features a lot of unemployed storefronts these days. It's simple enough to say that this has something to do with the real estate boom of some years ago and its subsequent unwinding, but you ought to be able to feel the tug of the classical intuition that this can't really happen. There should be some non-zero price at which the storefronts lease. And yet there they stand vacant. And the idea that it's microeconomics all the way down and unemployed storefronts must be caused by bad government regulations standing in the way of the market is even less plausible with regards to these storefronts than with regards to people. After all, this is relatively new construction that we're talking about. Burdensome regulation should stop the buildings from being built in the first place, not induce people to build unleasable structures.

There are a few things that could explain this.  First, zoing regulations might limit potential uses.  Second, a store-owner might not want to rent to a marginal tenant (one whose business has a high chance of failure) because the cost of eviction is high.  Third, business owners in a week economy might not be able to turn a profit even if the rent is extremely cheap.  That is, rent is only one of many business expenses.  If profits don't cover the cost of permits, utilities, taxes, furniture, and employee salaries, then it doesn't matter how good a deal you get on rent.  

Steve Clowney

January 9, 2013 | Permalink | Comments (2) | TrackBack (0)

Tuesday, January 8, 2013

When is it time to take down memorials?

Thought-provoking piece in the New York Times today about the discussions in Newtown, Conn. regarding the spontaneous and often homemade memorials to those who died at Sandy Hook.  The article mentions that many of the flags made from bedsheets, or signs made from plywood violate homeowner's association covenants, but they also violate sign ordinances, zoning, and other laws.  How long is long enough to allow these rules to be bent to allow people to mourn?

Tanya Marsh

January 8, 2013 in Servitudes | Permalink | Comments (0) | TrackBack (0)

Video of the Week: The World's Best Pickpocket

In last week's New Yorker, Adam Green has a story about Apollo Robbins, who is widely considered the world's best pickpocket.

In more than a decade as a full-time entertainer, Robbins has taken (and returned) a lot of stuff, including items from well-known figures in the worlds of entertainment (Jennifer Garner, actress: engagement ring); sports (Charles Barkley, former N.B.A. star: wad of cash); and business (Ace Greenberg, former chairman of Bear Stearns: Patek Philippe watch). He is probably best known for an encounter with Jimmy Carter’s Secret Service detail in 2001. While Carter was at dinner, Robbins struck up a conversation with several of his Secret Service men. Within a few minutes, he had emptied the agents’ pockets of pretty much everything but their guns. Robbins brandished a copy of Carter’s itinerary, and when an agent snatched it back he said, “You don’t have the authorization to see that!” When the agent felt for his badge, Robbins produced it and handed it back. Then he turned to the head of the detail and handed him his watch, his badge, and the keys to the Carter motorcade.

Steve Clowney

January 8, 2013 | Permalink | Comments (1) | TrackBack (0)

Lametti on the Concept of the Anticommons

LamettiDavid Lametti (McGill) has posted The Concept of the Anticommons: Useful, or Ubiquitous and Unnecessary? (Book Chapter) on SSRN.  Here's the abstract:

The work of Michael Heller on the so-called anticommons, or using the more recent moniker, “gridlock”, and the abundance of scholarship that it has generated, is one of the more significant recent concepts that has emerged from American property scholarship. Yet, in my view, Heller’s anticommons rests on a flawed view of private property ownership; indeed, some of his examples of gridlock have little to do with private property as such. Yet, private property is not nearly as absolute as the tragedy of the anti-commons claims or indeed requires. This flawed view, which posits private property as being more or less absolute, then benefits from the counter-balance or corrective provided by the recognition of an anticommons. Once property is seen in its proper light, the superstructure of the anticommons becomes unnecessary at best, obfuscating at worst. Starting with a more balanced view of private property, the central insight of the anticommons literature is already contained in the concept of private property. And the practice of private property has long tried to address the very different and complex challenges of fragmented and adjacent ownership that the anticommons perhaps oversimplifies. Thus at the very least, simplicity of thought demands that we not create unnecessary conceptual structures.

Steve Clowney

January 8, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, January 7, 2013

This Wednesday's Professor's Corner Call -- Fracking!

As you may recall, 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 recent real property cases of interest to real estate practitioners and scholars. 

The January 2013 program, moderated by Professor Wilson Freyermuth of the University of Missouri School of Law, is a particularly timely program entitled "Shale Gas and Tight Oil: A “Fracking” Primer for Real Property Lawyers.” This panel will feature Professors Keith Hall, Blake Watson, and Hannah Wiseman, three scholars whose recent work has focused on various legal issues associated with hydraulic fracturing.

Wednesday, January 9, 2013
12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a.m. Pacific)
Call-in number: 866-646-6488
Passcode: 5577419753

Keith Hall is an Assistant Professor and the Director of the Mineral Law Institute at the LSU Law Center. Professor Hall will provide a summary of what hydraulic fracturing is, as well as a brief overview of the various legal issues raised by hydraulic fracturing (including water sourcing, groundwater contamination, disclosure of composition of fracturing fluids, disposal of flowback, and state vs. local preemption issues).

Blake Watson is a Professor at the University of Dayton School of Law. Professor Watson will address recent developments in groundwater contamination litigation, specifically focusing on: (1) the possibility that courts will find hydraulic fracturing to be an abnormally dangerous activity subject to strict liability; (2) the strategy of defendants to cut off discovery and terminate litigation prior to summary judgment through the use of "Lone Pine" case management orders; and (3) the ability (or inability) of defendants to keep terms of settlements from the public (at issue in the recent Hallowich decision from Pennsylvania).

Hannah Wiseman is an Assistant Professor at the Florida State University College of Law. Professor Wiseman will address recent regulatory changes, including rules addressing stormwater/erosion permitting for well site construction; setbacks of well sites from homes, surface water, and other resources; spill prevention, containment, and clean-up; and the sparse state laws on wildlife issues associated with well development. She also will briefly explore changes in states’ funding of agencies, staffing and training practices, and enforcement of laws at well sites.

Readers of PropertyProf Blog are invited to attend. 

Tanya Marsh

January 7, 2013 in Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Relocation Therapy

The N.Y. Times looks at how moving to a new property can have positive psychological effects:

“Our home represents comfort and another way of identifying ourselves,” she said. “Your identity is changed by loss, so you think of changing your house, too.” People may see a move “as a way of starting over,” she added, “even a way of undoing the bad thing that has happened. It’s a defense mechanism.”

But is it a healthy defense mechanism? “There’s no right answer,” Dr. Saltz said. “But I certainly wouldn’t board up the house the week your spouse leaves. “We don’t process things instantly,” she said. “Being guided by a desire to run might lead you to a financially or emotionally unwise decision for yourself.” Unless, she said, “it means moving somewhere you had always wanted to be anyway.”

Steve Clowney

January 7, 2013 | Permalink | Comments (0) | TrackBack (0)