Tuesday, December 31, 2013
Dave Weigel takes a quick look at Utah's (largely successful) attempt to end chronic homelessness. Rather than try to get the homeless off of drugs and alcohol, Utah gave 2000 homeless people an apartment and a caseworker to help them live independently. Even if they failed to become self-sufficient, Utah let them keep the apartment.
Recent data on the program is very encouraging. Utah reduced chronic homelessness by 75%. Moreover, the program has actually saved the state money. "In 2005, Utah did a study that found the average annual cost for emergency services and jail time for each chronically homeless person was $16,670. The cost to house them and provide case management services was only $11,000 per person."
Christian Burset (Yale Ph.D. Candidate) has posted The Messy History of the Federal Eminent Domain Power: A Response to William Baude (California Law Review Circuit) on SSRN. Here's the abstract:
In this response to William Baude's article, Rethinking the Federal Eminent Domain Power, Christian Burset challenges Baude's claim that antebellum legislators, commentators, and judges uniformly refused to acknowledge a federal eminent domain power. Examining historical sources and case law, Burset highlights how changing political attitudes influenced historic beliefs about the ability of the federal government to condemn land within state boundaries.
Monday, December 30, 2013
Robin Craig (Utah) has posted Of Sea-Level Rise and Superstorms: The Public Health Police Power as a Means of Defending Against 'Takings' Challenges to Coastal Regulation (NYU Envtl Law Journal) on SSRN. Here's the abstract:
Both the reality of sea-level rise and the increased risk of severe storms call for new coastal management responses. To date, however, most of these responses have been framed — logically enough — as land use planning. Specifically, coastal states have been experimenting with coastal retreat, rolling easements, building moratoria in the coastal zones, perpetual easements, and other land use-based approaches that both anticipate and react to coastal inundation.
While measures framed as “land use planning” might, in a vacuum, be appropriate and effective legal responses to the actuality and threat of coastal inundation, on the ground they often “interfere” with how owners can use coastal private property. In turn, the owners of the properties that coastal regulation affects often sue the responsible state, claiming that the state has unconstitutionally “taken” their property in violation of the Fifth and Fourteenth Amendments to the U.S. Constitution and/or similar provisions in the relevant state’s constitution.
The U.S. Supreme Court has made clear that the land use police power is no longer a complete defense — as it once was — to land use-based regulatory takings claims. Importantly, however, neither courts nor the general public treat all state exercises of the police power the same. In courts, state regulation that directly protects the public health from traditional and imminent public health concerns (disease, toxic exposures ) provides states — de facto if admittedly only rarely de jure — with more effective insulation from regulatory takings claims.
To date, however, no coastal state has seriously framed its legal measures to deal with coastal inundation as public health protection. Nevertheless, the public health threats posed by coastal inundation — both slow sea-level rise and catastrophic storms — are real and numerous. This article argues that coastal states would gain considerable advantage in responding to constitutional regulatory takings challenges if they framed their legal measures to deal with coastal inundation as public health regulation.
Friday, December 27, 2013
Gregory Leeson has a beautiful house for sale in Dunmore, PA. The only problem is that it's "slightly haunted." Here's the listing as it appeared on Zillow:
Leeson's efforts to market his home have been a success. Accroding to Forbes, "But since uploading his for sale by owner listing on Sunday, Leeson has received multiple offers and interest from buyers as well as ghost hunters across the country."
H. Kristl Davison (Hartford - Business), Mark Bing (Tennessee, Chattanooga - Psychology), Leila J. Pratt (Tennessee, Chattanooga), & E. Bruce Hutchinson (Tennessee, Chattanooga) have posted Deadweight Loss of Gift-Giving on SSRN. Here is the abstract:
When giving a gift, someone other than the final consumer makes the consumption choice. Thus there is a possibility that the gift will not match the preferences of the receiver, i.e., the gift will represent a wise use of the money given the gift-giver's tastes but not necessarily a wise use of money given the recipient's tastes. In other words, gift-giving can result in a deadweight loss.
This paper examines the issue of the deadweight loss of gift-giving. In particular it attempts to resolve and clarify the discrepancy between Waldfogel's (1993) finding of a deadweight loss from gift-giving and Solnick and Hemenway's (1996) finding of a deadweight gain from gift-giving. It also builds on some of the concerns raised by Ruffle and Tykocinski (2000). To accomplish this, the deadweight loss of gift-giving is estimated based on data collected from a survey of undergraduate students at the University of Tennessee at Chattanooga.
Thursday, December 26, 2013
Robert Cheren (Independent) has posted Fracking Bans, Taxation, and Environmental Policy (Case Western Law Review) on SSRN. Here's the abstract:
This Article investigates the tax bases of local jurisdictions that have imposed bans on horizontal slickwater fracturing, colloquially known as fracking. Local governments that draw little additional revenue from fracking are more likely to ban the practice because of environmental concerns. The correlation between the issuance of local fracking bans and the relative absence of additional local revenue from fracking suggests the importance of taxation in the determination of the proper balance between federal, state, and local governments in the process of making environmental policy.
Wednesday, December 25, 2013
Monday, December 23, 2013
Geoffrey Miller (NYU) has posted Property in the Bible on SSRN. Here's the abstract:
The Bible is a rich source of information about the theory and practice of property law in ancient times. The text deals insightfully with the concept of the root of title and sets forth sensible rules for defining property rights, protecting those rights against infringement, and facilitating transfers of ownership. Overall, the institutions of ancient Israel responded in an efficient way to the challenge of administering a regime of private property under technological conditions which were substantially less advanced than those which prevail today.
Friday, December 20, 2013
Alice Kaswan (San Francisco) has posted Climate Adaptation and Land Use Governance: The Vertical Axis (Columbia J. Envtl Law) on SSRN. Here's the abstract:
The existing and expected impacts of climate change are increasingly well-documented. Recent hurricanes, wildfires, and heat waves provide dramatic examples of what climate change portends, even if no single event can be directly attributed to climate change. The scale of anticipated climate change poses profound challenges to existing governance norms. This article addresses one of those norms: the norm of local control over land use. The article provides three central contributions to environmental governance scholarship: First, it provides an in-depth assessment of the federalism values that guide jurisdictional choices: pragmatic efficacy, democratic legitimacy, and the prevention of tyranny. Second, based on those values, it argues that a multilevel governance approach that supplements local control with federal resources and parameters is necessary to adequately prepare for climate change and meet the wide range of local, state, and federal interests at stake. Third, it sketches how a multigovernance approach could distribute central governance functions among federal, state, and local players.
Thursday, December 19, 2013
Glenn Reynolds (AKA Instapundit) has a fun column in USA Today outlining how Chinese space exploration may spur the development of property rights on the Moon:
On Saturday, a Chinese lunar probe made the first soft landing anyone’s made on the moon since 1976. [...] Though the landing was a big deal in China, most of the rest of the world responded with a yawn. Moon landing? Been there, done that.
But October Sky author Homer Hickam was more excited. He wondered on Twitter if China might want to make a territorial claim on the moon, noting that the area the lander is exploring may contain an abundance of Helium-3, a potentially valuable fusion energy fuel that is found only on the moon. According to former astronaut/geologist Harrison Schmitt, China “has made no secret” of its interest in Helium-3. Schmitt observes, “I would assume that this mission is both a geopolitical statement and a test of some hardware and software related to mining and processing of the lunar regolith….”
The 1967 Outer Space Treaty provides that “outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” But that’s not much of a barrier.
First, the treaty only prohibits “national appropriation.” If a Chinese company, instead of the Chinese government, were to stake a claim, it wouldn’t apply. And, at any rate, China — which didn’t even join the treaty until 1983 — can, like any other nation, withdraw at any time. All that’s required under the treaty is to give a year’s notice.
So if the the Yutu rover finds something valuable, Chinese mining efforts, and possibly even territorial claims, might very well follow. And that would be a good thing.
What’s so good about it? Well, two things. First, there are American companies looking at doing business on the moon, too, and a Chinese venture would probably boost their prospects. More significantly, a Chinese claim might spur a new space race, which would speed development of the moon.
Ilya Somin makes a fine point about the potential scope of these claims:
Difficult questions will have to be addressed, such as how much property an individual, firm, or national government is allowed to claim, and on what basis. For example, if China establishes a base on the moon for mining purposes, is it entitled to claim only the land on which the base’s structures sit or some additional territory around it?
Josh Hawley (Missouri) has posted The Beginning of the End? Horne v. Department of Agriculture and the Future of Williamson County (Cato Supreme Court Review) on SSRN. Here's the abstract:
Horne v. Department of Agriculture exposes a fundamental confusion right at the nerve of the Supreme Court’s contemporary takings jurisprudence. Since its 1985 decision in Williamson County Regional Planning Commission v. Hamilton, the Supreme Court has insisted that a property owner who wants to raise a takings claim in federal court must first exhaust any post-deprivation remedies made available by state or federal law. The theory has been that the Fifth Amendment merely requires the government to compensate a property owner for a property invasion, and therefore no taking has occurred unless and until the property owner attempts to obtain compensation and is denied. Any takings claim before the denial of compensation is, in the words of Williamson County, not “ripe.” But this is a mistake - and quite a fundamental one. In fact, the availability of compensation has nothing to do with ripeness. It has to do with remedies. Before Williamson County, courts had held for two centuries that if the government took private property but provided no mechanism for compensating the owner, the owner could obtain equitable relief if the taking was not complete, or damages if it were. No court had ever held that the availability of compensation barred a claim as unripe. This earlier rule reflected an understanding of the Takings Clause markedly different from the one the Court embraced in Williamson County - as a governmental disability, a structural limit on governmental power, rather than as a promise to pay. The Court’s confusion in Williamson County stemmed in large measure from abandoning this older understanding in favor of an interpretation of the Takings Clause as a standing offer to pay. The Horne case suggests how the Court might recover a better conception of the Clause and put its takings jurisprudence back on track.
Wednesday, December 18, 2013
Zach Bray (Houston) has posted The New Progressive Property and the Low-Income Housing Conflict (BYU Law Review) on SSRN. Here's the abstract:
I then turn to examine a deep conflict at the intersection of Section 8 and rent control, which presents an important opportunity to further test and refine the new progressive property. In particular, I argue that this underexamined low-income housing conflict provides good reasons to abandon rent control, even from a progressive-property perspective. In addition, the low-income housing conflict between Section 8 and rent control sheds light on the ambiguous relationship between law-and-economics analysis and the progressive-property framework. More specifically, I argue that the conflict between rent control and Section 8 demonstrates that even the most basic law-and-economics tools must be incorporated into a progressive-property framework to achieve the ends of the new progressive property.
Tuesday, December 17, 2013
The New York Times has a sad story about the importance of property law. By way of background, Typhoon Haiyan slammed into the Philippines in November of 2013, destroying the homes of nearly 4 million people. Recovery efforts have been slow. Part of the problem is that much of the affected land was inhabited by squatters. Now, the formal title owners want to re-purpose the former shanty towns for their own profit. From the Times:
Land disputes at this settlement and similar shantytowns up and down the coast are among the many reasons the recovery effort here is faltering. [...] Virtually no new permanent houses are being built yet, as the local and national government wrangle about which areas are too vulnerable to storm surges to be rebuilt.
But the standoff over the roughly six-acre strip of land owned by the Romualdez family is particularly fraught, emblematic of troubles that have plagued the Philippines for decades: an unequal distribution of property that keeps many mired in poverty, together with a degree of lawlessness and political expediency that allows the poor to settle on land that is not legally theirs. An estimated one-third of Tacloban’s residents are squatting on other people’s land.
Jennifer Bird-Pollan (Kentucky) has posted Death, Taxes, and Property (Rights): Nozick, Libertarianism, and the Estate Tax (Maine Law Review) on SSRN. Here's the abstract:
Contemporary policy discussions of taxes in general, and of the estate tax in particular, are often dominated by arguments that start from libertarian premises. However, these libertarian views are rarely fully unpacked, and, as a result, the conclusions of these arguments often extend beyond what can be justified by those libertarian premises. With regard to the estate tax, many libertarians argue that government interference with the free transfer of assets after death is an immoral violation of the property rights of the deceased. In this Article, I work through the libertarian arguments of Robert Nozick in his seminal work, Anarchy, State, and Utopia, with special attention to his views of property and inheritance rights. By demonstrating that libertarianism cannot justify property rights that extend beyond death, I show that, in fact, libertarianism is entirely consistent with a robust estate tax. While this does not mean that the libertarian views of property rights require an estate tax, those views do not, on moral grounds, preclude the imposition of the tax.
Monday, December 16, 2013
When the news writes your land use exam for you:
The big house set back in the woods at the end of Cliff Court has been a source of mystery and irritation for neighbors on the quiet cul de sac in recent months. Vehicles come and go at all hours, and several times, whole groups of them have sped up the driveway with emergency lights flashing. Once, the Hasidic boys who study at a makeshift school inside the house spilled out into the neighborhood in pursuit of a bear. [...]
What's going on at 21 Cliff Court? At the moment, it's clear that a school is operating there, although neither the owner of the house nor the men running the school will discuss it. The Town of Monroe building inspector concluded as much on Aug. 3, when he counted four boys outside and spied 11 black hats inside by peering through a garage window. [...]
It's unclear what town approvals, aside from building permits, were needed to create a school in the house, which the town classifies as a single-family home with an accessory apartment and taxes accordingly. Property-tax bills totaled nearly $29,000 last year. Neighbors say the house — one of eight on the block — initially was used to board some of the Eastern European women who clean homes in neighboring Kiryas Joel.
(HT: Ashira Ostrow)