Friday, July 19, 2013

Freyfogle on Private Ownership and Human Flourishing

FreyfogleEric Freyfogle (Illinois) has posted Private Ownership and Human Flourishing: a Critical Review on SSRN.  Here's the abstract:

This essay surveys the many, contradictory links between private ownership and human flourishing and assesses the moral implications of this complexity. It begins with and ultimately broadens claims made by leading South African scholars on the need to reconsider longstanding ways of thinking about property, particularly the “rights paradigm.” Private ownership in obvious ways benefits an owner. But as explained, the links between private rights and human flourishing are far greater, implicating not just owners but neighbors, surrounding communities, the landless, future generations, and other life forms. The recognition of private property rights can both expand and curtail human flourishing. As for human flourishing, it is equally complex in that it is affected by many factors going far beyond physical needs. Property rights are created by law and involve the use of state power to protect rights by curtailing the liberties of non-owners and others. The only sound moral justification of this use of coercive power — this use of state power to help owners control and dominate others — rests in the ways a well-designed property regime can foster the welfare of nearly everyone, owners and non-owners alike. Law thus should not vest an owner with any power that does not, on balance, promote widespread human flourishing. Inherited ways of thinking about private property cloud these realities and distort inquiries into property’s origins and moral and practical consequences. Much of this thought is best wiped away with discussion begun from a new place, from an express recognition of private property as an evolving, socially created, morally complex institution that can both promote and undercut human flourishing, an institution that must be carefully calibrated to maintain its moral legitimacy and maximize its social benefits.

Steve Clowney

July 19, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, July 18, 2013

Casebook Announcement

Grant Nelson, Dale Whitman, Colleen Medill, and Shelley Saxer have recently put out a new edition of their casebook, Contemporary Property.  Here's the publisher's blurb:

The book begins with fundamental Property principles and concepts, followed by personal property with an introduction to intellectual property. Subsequent chapters cover present and future interests, concurrent estates, landlord and tenant law, real estate transactions, easements, covenants, and public land use regulation (including zoning, eminent domain and regulatory takings, and constitutional challenges based on due process, equal protection, freedom of speech and freedom of religion).

The publisher also emphasizes that the authors have redone the teacher's manuel to make it easier for experienced teachers to switch books and new teachers to go through the material the first time.

Steve Clowney

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

Narula on Purchasing and Leasing Agricultural Land in Developing Countries

NarulaSmita Narula (NYU) has posted The Global Land Rush: Markets, Rights, and the Politics of Food ( Stanford Journal of International Law) on SSRN.  Here's the abstract:

In the past five years, interest in purchasing and leasing agricultural land in developing countries has skyrocketed. This trend, which was facilitated by the 2008 food crisis, is led by state and private investors, both domestic and foreign. Investors are responding to a variety of global forces: Some are securing their own food supply, while others are capitalizing on land as an increasingly promising source of financial returns. Proponents argue that these investments can support economic development in host states while boosting global food production. But critics charge that these "land grabs" disregard land users’ rights and further marginalize already vulnerable groups: small-scale farmers, pastoralists, and indigenous peoples who are being displaced from their land and from resources essential to their survival. Amid mounting global protests, two dominant frameworks have emerged to assess and contest the global rush for agricultural land. This Article critically examines both approaches.

Part I provides an overview of the drivers and impacts of large-scale land transfers and the problematic land transactions involved. Part II sets out the contours of what I term the market-plus approach and the rights-based approach — the frameworks assumed respectively by proponents and opponents of these deals. Part III analyzes key conceptual differences in each framework’s approach to rights and risks and to land distribution. I argue that the market-plus approach tolerates and facilitates rights violations, whereas the rights-based approach sets a normative baseline that repudiates these impacts and addresses key distributive concerns. Part III assesses the potential of each approach to effectively regulate land deals in practice. I find that both approaches emphasize procedural safeguards to protect land users’ rights and argue that these safeguards are ineffective at contesting the power dynamics at play in land transactions. Part IV proposes concrete reforms to help empower communities most affected by land deals and argues that international actors must be more involved in securing rights protections.

Steve Clowney

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

Wednesday, July 17, 2013

Echeverria on 'Ripeness' Doctrine in Takings Litigation

EcheverriaJohn Echeverria (Vermont) has posted Horne v. Department of Agriculture: An Invitation to Reexamine 'Ripeness' Doctrine in Takings Litigation (Envtl Law Reporter) on SSRN.  Here's the abstract:

In June 2013, the Supreme Court issued a decision in Horne v. Department of Agriculture, arguably the most obscure of the Supreme Court’s trilogy of takings cases in the 2012-13 term. The case arose from a U.S. Department of Agriculture order imposing sanctions on California raisin growers for failing to comply with the requirements of a marketing order issued under the Agriculture Marketing Agreement Act of 1937. Reversing the U.S. Court of Appeals for the Ninth Circuit, the Supreme Court ruled that the growers presented a “ripe” takings claim and that the appeals court erred in concluding that it lacked “jurisdiction” over the claim. Horne invites a reexamination of the confusing and under-theorized legal doctrine governing the distribution of takings cases among different federal courts and between federal and state courts. The thesis of this article is that the Takings Clause precludes a property owner from presenting a viable legal claim for equitable relief so long as the claimant has the opportunity to pursue a claim for just compensation under the Takings Clause. Thus, the reason a claimant cannot sue to enjoin a taking in federal District Court when there is an opportunity to sue for financial compensation in the U.S. Court of Federal Claims is that the claim for equitable relief fails to state a valid legal claim; contrary to the suggestion of the Court in Horne, and that of many lower courts, neither the ripeness doctrine nor subject matter jurisdiction is relevant in this context. A different principle governs whether takings claims seeking just compensation based on local government can go forward in federal or state court, the issue addressed in the landmark Williamson County case. While unfortunate language in that decision suggests that ripeness doctrine governs this choice of forum, the preference for state courts over federal courts in takings cases is best understood as resting on federalism values, including (1) the advantages of leaving land use disputes to state judges with superior local knowledge and (2) the notion that a sovereign state cannot be viewed as effecting a taking until property has been taken and the state courts have addressed a property owner’s claim for compensation under the Takings Clause. If Horne serves as a springboard for rationalizing the Court’s rules on forum selection in takings cases, it will turn out not to be such an unimportant case after all.

Steve Clowney

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

Tuesday, July 16, 2013

The Largest Building in the World Opens


The world's largest building as just opened in the Chinese mega-city of Chengdu.  The Guardian gives a preview:

A 100m tall cliff-face of blue mirrored glass, stretching 500m along a triumphal plaza, the New Century Global Centre houses an entire seaside resort, along with a 14-screen Imax cinema, Olympic-sized ice rink, two five-star hotels and its own Mediterranean shopping village – all wrapped with a vast ribbon of offices. Sprawling for 1.7m square metres, it could fit 20 Sydney Opera Houses beneath its glass roof. It is declared by its creators to be "a landmark which commands the world and is looked upon by the world with respect," a pleasure dome that Kubla Khan could only dream of.

Steve Clowney

July 16, 2013 | Permalink | Comments (1) | TrackBack (0)

Gatewood on the Evolution of the Right to Exclude

GatewoodJace Gatewood (John Marshall - Atlanta) has posted The Evolution of the Right to Exclude – More than a Property Right, a Privacy Right (Mississippi College Law Review) on SSRN.  Here's the abstract:

More than two hundred years ago, William Blackstone defined the right of property as “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” This concept, commonly referred to as the Right to Exclude, has been arguably one of the most significant and essential elements in defining our understanding of what constitutes property in the United States. Since Blackstone’s description of property in the mid-eighteenth century, the right to exclude others has emerged as the single most important factor in determining the existence of private property. Historically, the right to exclude concerns the relationship between people with respect to things, “such that the so-called owner can exclude others from certain activities or permit others to engage in those activities and in either case secure assistance of the law in carrying out this decision.” But, from a present-day perspective, the right to exclude is so much more than a property right that defines the existence of private property and the relationships between owners and things. It is a right that has evolved beyond the legal constructs of traditional property law to also encompass legal entitlements and benefits possessed by one person over another irrespective of the legal relationship between such person and the thing in which the right is claimed. This Article explores the evolution of right to exclude beyond being an essential and fundamental property right associated primarily with interests in “things” (i.e., in rem conception of property rights) to also being the societal compass that helps form reasonable expectations of privacy that guide us in our dealings and relationships with one another (i.e., in personam conception of property rights). This Article also addresses how this new understanding of the right to exclude may be used to resolve expanding privacy concerns, particularly in the wake of advanced surveillance technology.

Steve Clowney

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

Monday, July 15, 2013

Alternative Visions of Central Park

In 1857, New York City announced a design competition to improve and expand Central Park.  As many people know, Frederick Law Olmsted and Calvert Vaux’s submitted the winning entry and claimed the $2000 prize. Over 150 years later, the park remains one of the most beloved civic spaces in the country.  The design has been so successful that it's almost difficult to imagine the city without it. 

But a recent exhibit at the New York Historical Society takes a look at what might have been.  In 1857, 33 designs were submitted for the park.  Surprisingly, only five survive.  Here's a link to Olmsted's design.  Here are images of a couple of the proposed alternatives.  Central park could have had a lot more topiaries

Steve Clowney

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

Who Owns the Airspace Above Your House?

Brian Palmer digs into the legal considerations in a piece aimed at the general public:

National Geographic photographer George Steinmetz was arrested for trespass on June 28 after circling his paraglider over a Kansas cattle feedlot, according to an Associated Press report published Wednesday. Local officials say Steinmetz didn’t have permission to launch his flyer from the property or to take photos from the air. Can you keep people from gliding over your property?

Up to a point. Before the advent of air travel, landowners owned an infinitely tall column of air rising above their plot. (The Latin doctrine was Cujus est solum ejus usque ad coelum, or “whose is the soil, his it is up to the sky.”) In 1946 the Supreme Court acknowledged that the air had become a “public highway,” but a landowner still had dominion over “at least as much of the space above the ground as he can occupy or use in connection with the land.” In that case the court held that a plane flying just 83 feet in the air—the commotion was literally scaring the plaintiff’s chickens to death—represented an invasion of property. The justices declined to precisely define the height at which ownership rights end. Today, the federal government considers the area above 500 feet to be navigable airspace in uncongested areas. While the Supreme Court hasn’t explicitly accepted that as the upper limit of property ownership, it’s a useful guideline in trespass cases.

Steve Clowney

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

Friday, July 12, 2013

Squatter Towns From Across the Globe


A slide show from Slate.

Steve Clowney

July 12, 2013 | Permalink | Comments (0) | TrackBack (0)

Parking: Urban Kudzu?

Matt Yglesias makes the case the minimum parking requirements imposed by cities on new development are choking the life out of urbanism:

Michael Manville of UCLA studied a liberalization of parking regulations in one section of Los Angeles and found that deregulation leads to the construction of more housing units and fewer parking spaces. Conversely, tighter regulation leads to a lack of affordable housing and a surplus of parking spaces. That might make sense if parking spaces were a public good, like clean air. But they’re closer to being a public bad. When Chicago mandates the creation of a high number of parking spaces per square foot of downtown office building, it reduces the price of parking, but it has a number of negative consequences. Cheaper parking means more traffic congestion on the streets. It also means lower ridership for Chicago mass transit. Perversely, cheaper parking offers a subsidy to commuters from outside the city limits at the expense of Chicago residents living within walking or biking distance of the central business district. And, of course, it leads to dirtier air, not cleaner.

Steve Clowney

July 12, 2013 | Permalink | Comments (0) | TrackBack (0)

Serkin & Macey on Alternative Forms of Public Land Use Controls

Christopher Serking (Vanderbilt) and Gregg Macey (Brooklyn) have posted Symposium Introduction: Post-Zoning: Alternative Forms of Public Land Use Controls (Brooklyn Law Review) on SSRN.  Here's the abstract:

Brooklyn Law School’s 2012 David G. Trager "Public Policy Symposium, Post-Zoning: Alternative Forms of Public Land Use Controls", called for a critical new appraisal of modern land use regulation. In this Introduction, we describe the topic and introduce the outstanding papers produced for the Issue. Over the years, zoning has widened its reach and flexibility through innovations such as overlay districts and planned unit developments. But these regulatory tweaks continue to take the separation of incompatible uses of land as their point of departure. In this Introduction, we sketch zoning’s origins and suggest why its traditional goals may no longer be tenable. New challenges, from finer-grained externalities within communities to sea-level rise, demand that zoning respond to change at both broader and narrower scales. The impressive set of papers collected in the Symposium address, in varied and creative ways, zoning’s ability to adapt to new pressures on land use from the sublocal to the global. Included in this volume are papers by Vicki Been, Alejandro Camacho, Richard Epstein, Lee Fennell, William Fischel, Nicole Garnett, Rachel Godsil, Gerald Korngold, John Nolon, and Stewart Sterk.

Steve Clowney

July 12, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, July 11, 2013

How Not to Write a Deed

Over at Land Use Prof, Stephen Miller highlights a wonderfully awful deed that he's come across. The deed uses poplar, chestnuts, white oaks, and cucumber trees as landmarks for the survey and measures land in "poles." Take a look.  It's a gem.

Steve Clowney

July 11, 2013 | Permalink | Comments (0) | TrackBack (0)

Midtown Manhattan Growth Animation

Very Cool:

Steve Clowney

(HT: The Daily Dish)

July 11, 2013 | Permalink | Comments (0) | TrackBack (0)

Knudsen & Clark on How Walkable Neighborhoods Affect Social Movements

Brian Knudsen & Terry Clark (Chicago) have published Walk and Be Moved: How Walking Builds Social Movements (Urban Affairs Review).  Here's the abstract:

Recent scholarship recognizes the city’s role as “civitas”—a “space of active democratic citizenship” and “full human realization” based on open and free encounter and exchange with difference. The current research emerges from and fills a need within this perspective by examining how local urban contexts undergird and bolster social movement organizations (SMOs). Our theory elaborates and linear regressions assess the relationships between four urban form variables and SMOs. In addition, our theory also examines how urban walking mediates the relationships between these local contextual traits and SMOs. Drawing primarily from the ZIP Code Business Patterns and U.S. Census, we generate a data set of approximately 30,000 cases, permitting regression analyses that distinguish strong direct effects of density, connectivity, housing age diversity, and walking on the incidence of SMOs. Sobel tests indicate that for density and connectivity, walking mediates the relationships with SMOs in a way consistent with the mechanisms of the hypotheses.

Steve Clowney

July 11, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 10, 2013

When Affordable Housing Goes Wrong

The Washington Post looks at the failure of the District's most recent affordable housing initiative.  The  story focuses on the rise and fall of The New Communities Initiative, a plan to "marshal hundreds of millions of dollars in public and private investment" to upgrade the city's Temple Courts neighborhood into mixed income community that "would serve as a template for remaking other violent neighborhoods in the District."

Spoiler alert: Incompetence and unforeseen title problems doom the project.

Steve Clowney

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

Goodman on Title Insurer Liability for Toxic Titles

Molly-goodmanMolly Goodman (Suffolk) has posted The Buck Stops Here: Toxic Titles and Title Insurance (Real Estate Law Journal) on SSRN.  Here's the abstract:

By failing to properly transfer ownership of loans and mortgages, recording fraudulent documents, and performing unlawful foreclosures, financial institutions and law firms have generated property titles that range from defective to toxic. Those actions evince a systemic failure to comply with longstanding principles of real property law and regulations governing financial transactions. Title companies participated in title services and issued title insurance policies throughout the housing boom and although they did not directly cause toxic titles, many title insurers have ultimately assumed the risk for the bad practices that became the industry norms in the last decade. In this article, I will discuss how title insurers have exposed themselves to liability for toxic titles.

Steve Clowney

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

Tuesday, July 9, 2013

Welcome New Property Profs

Sarah Lawsky's entry level hiring report has indentified a number of newly hired law professors who teach and conduct research on property matters.  Welcome to the club, rookies.

John Infranca - Suffolk

Rhett Larson  - Oklahoma

Sheldon Lyke - Whittier

Sharmila Murthy - Suffolk

Christopher Odinet - Southern

James Stern – William & Mary

Lua Yuille  -  Kansas

If I've left anyone off, please let me know.

Steve Clowney

July 9, 2013 | Permalink | Comments (0) | TrackBack (0)

Newman on Disentangling Divisibility and Transferability of Ownership in Copyright

NewmanChristopher Newman (George Mason) has posted An Exclusive License is Not an Assignment: Disentangling Divisibility and Transferability of Ownership in Copyright (Louisiana Law Review) on SSRN.  Here's the abstract:

Is there any difference between an exclusive copyright license and an assignment? Many believe that any distinction between the two was obliterated by the Copyright Act of 1976, which included the term "exclusive license" within the statutorily-defined term "transfer of copyright ownership." In the much-criticized decision Gardner v. Nike, the U.S. Court of Appeals for the Ninth Circuit held that while the statute granted exclusive copyright licensees the "protection and remedies" accorded to "copyright owners" by the 1976 Act, it did not abrogate the preexisting presumption that copyright licenses are not transferable without the consent of the licensor.

This article takes the position that Gardner’s critics are mistaken, and that there is a strong case the Ninth Circuit’s decision was both correct as a matter of statutory interpretation and consistent with the legislative history. More fundamentally, I argue that Gardner’s critics are making a number of mistaken assumptions in their thinking about ownership and divisibility, assumptions that underlie and explain their erroneous reading of the statute. Properly understood, the policy of divisible copyright is perfectly compatible with the view that exclusive licenses are nontransferable ownership interests. Moreover, there are reasons to think Gardner may be beneficial as a matter of copyright policy, because on the margins it should tend to reduce fragmentation of title and enhance authorial control.

Steve Clowney

July 9, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, July 8, 2013

July 10th Professor's Corner Call to Discuss Koontz

Professors’ Corner:  Wednesday, July 10, 2013:  Koontz v. St. John’s River Water Management District:  A Significant Victory for Property Rights?

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 law professors who discuss recent cases or issues of interest to real estate practitioners and scholars.   Members of DIRT are invited to participate in the call (as well as to join and become involved in the ABA Real Property, Trust and Estate Law Section).

Wednesday, July 10, 2013

12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a.m. Pacific). Call is ONE HOUR in length.

Call-in number: 866-646-6488

Passcode: 5577419753

This program will feature a roundtable discussion breaking down the Supreme Court’s important June 25 decision in Koontz v. St. John’s River Water Management District. If “monetary exactions” have always seemed a little untamed to you, you’re not alone. The 5-4 decision in Koontz leaves a lot of room for analysis, and this month’s panel is prepared to guide you through it by parsing the decision and the dissent.  Our distinguished panel will include Professor Jonathan H. Adler, who is the Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation at Case Western Reserve University School of Law; John D. Echeverria, Professor of Law at Vermont Law School; and David L. Callies, who is the Benjamin A. Kudo Professor of Law at the University of Hawai’i. 

For those that haven’t already seen it, here’s a link to the opinion:

Please join us Wednesday for this great program!

Tanya Marsh

July 8, 2013 in Land Use, Takings | Permalink | Comments (0) | TrackBack (0)

Tragedy or Triumph in Post-Katrina New Orleans?

John Lovett of Loyola University New Orleans College of Law has published "Tragedy or Triumph in Post-Katrina New Orleans" in City Square, the online edition of the Fordham Urban Law Journal.  This short piece analyzes recent efforts to rebuild the city's affordable housing stock while diminishing racial segregation.  A really interesting article.  Check it out.

Tanya Marsh

July 8, 2013 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)