PropertyProf Blog

Alexander on the Right to Roam

Greg Alexander (Cornell) has posted The Sporting Life: Democratic Culture and the Historical Origins of the Scottish Right To Roam on SSRN.  Here's the abstract:

In 2003, the Scottish Parliament enacted the Land Reform (Scotland) Act, which, among other reforms, grants to "everyone" a right to access virtually all land in Scotland for a wide variety of purposes, including recreation, educational activities, and even some commercial or for-profit activities. Legal recognition of this broad-ranging "right to roam" comes after more than a century of debate over the public’s right to access privately-owned land in the Scottish Highlands. This paper is the first historical account of the origins of the remarkable Scottish right to roam. It sets the debate over the right to roam with a clash between two different visions of the sporting life: One, older, rooted in the Victorian and Edwardian periods, viewed the sporting life as one of hunting, aided by the use of modern technology — rifles and such — and much older technology in the form of dogs and horses. The other vision is of more recent vintage. It is a vision of contact with nature through walking, hiking, and similar forms of unmediated interaction with nature. Curiously, both visions of the sporting life claimed the mantle of preservation and conservation. The paper argues that the culture of unmediated contact with nature ultimately prevailed as a democratic culture became more entrenched in both politics and society.

Outka on Land Use, Land Use Change, and Forestry

Uma Outka (Kansas) has posted Land Use, Land Use Change, and Forestry (Book Chapter) on SSRN.  Here's the abstract:

During negotiations for the Kyoto Protocol to the United Nations Framework Convention on Climate Change (UNFCCC) in the 1990s, the United States (US) played a notable role in securing recognition for the climate mitigation potential in land use, land use change, and forestry (LULUCF). Ultimately, the US did not to ratify the Kyoto Protocol, but as a signatory to the UNFCCC, the US is formally obliged to control its greenhouse gas emissions. This chapter provides an overview of LULUCF in the US and the primary legal regimes that structure US progress toward climate mitigation through LULUCF means. It also addresses points of legal and policy intersection between LULUCF and the energy and transportation sectors, both considered critical to climate mitigation.

University of Florida Law Seeks Non-Tenure Track Skills Professor in Land Use Law

The University of Florida Fredric G. Levin College of Law seeks to fill a non-tenure track skills instructor lecturer position focused on Environmental and Land Use Law. Applicants for this position should hold a J.D. degree from an accredited law school, be a member in good standing of a state Bar, and have a minimum of three years of experience practicing environmental or land use law. Primary responsibilities will include developing and teaching skills courses on topics such as interviewing and counseling as well as skills and experiential courses, including field courses, in the College’s Environmental and Land Use program, and supervising externships and projects. Experience with Florida or federal environmental, water or land use law, current Florida Bar membership, and experience seeking grants are desirable. The anticipated starting date is January 2015. The salary range is $60,000 to $66,500 for a 12-month appointment. Members of groups under-represented in the legal profession including persons of color and women are particularly encouraged to apply. To apply go to: http://jobs.ufl.edu. Refer to requisition number 0905739. Please include CV, transcript(s), and the names of three references. The University of Florida is an equal opportunity employer. If accommodation due to disability is needed to apply for this position, please call (352)392-4621 or TDD (352)392-7734.

Parking Lots Are Bad For Downtowns

The Atlantic Cities blog looks at the scourge of downtown parking lots:

Whether you agree with their premise or not, there’s no arguing that huge surface parking lots create an atmosphere that is inherently hostile to the pedestrian: dull, unbearably hot in summer, windswept in all seasons, and potentially menacing, especially to women returning to their cars alone after dark.

In the Streetfilms short, Garrick talks about the way that guaranteed parking for government employees in the state capital of Hartford, Connecticut, has created an effective moat between the city’s historic residential neighborhoods, many of which have rows of fine brownstones, and its downtown, which has been gutted of small-scale employers and services.

[...] Garrick says that some cities, such as Cambridge, Massachusetts, and more recently Washington, D.C., have made good headway in reversing the trend toward massive parking lots that overwhelm the human scale and lead to downtowns devoid of people. “It’s very hard for people to realize, and it’s very hard to prove that planning is the reason,” says Garrick. “But this is the result of planning.” Better planning, he says, could mean a restoration of cities where the streets are for people, not cars.

Miller on Rural Economic Development

Stephen Miller (Idaho) has posted Three Legal Approaches to Rural Economic Development (Kansas Journal of Law & Public Policy) on SSRN. Here's the abstract:

Rural life has long been vaunted in American culture for its moral compass, hardworking spirit, and sense of community and place. At the same time, the percentage of Americans living in rural communities has been shrinking for generations, and American life has been predominantly urban for over a hundred years. In turn, America has fretted — since the country’s very inception — about the effects of urbanization on rural life, and in turn, how the loss of rituals of rural life would affect society generally. These changes in rural life are redoubled by a massive shift in rural economies since World War II: agriculture, once synonymous with the rural way of life, has become so efficient that it no longer serves as a viable source of jobs for rural people despite providing record profits for agricultural corporations.

This symposium essay takes on these challenges presented to rural economies by sketching out several roles law can play in rural economic development efforts. As rural economic development law depends upon both national and regional contexts, the essay first provides a background summary of the status of rural America. The essay then proceeds to provide background on the practice of rural economic development as it has traditionally been practiced. Finally, the essay sketches three effective legal approaches to rural economic development: “bottom up” planning mandates; redefining plans, zoning and other codes to reflect non-agricultural economic production; and identifying evaluating and disclosing risks of government involvement in rural economic development.

Canadian Takings Law Update

Doug Harris (UBC) had an op-ed yesterday in the Vancouver Sun about some recent developments regarding the land that was the subject of the Supreme Court of Canada’s most recent foray into regulatory takings. The case is CPR v. Vancouver, 2006 SCC 5.  A brief recap of the facts: "In 2000, the City of Vancouver passed a by-law that limited the use of a century-old rail line to a public thoroughfare. The Canadian Pacific Railway, which owned the line, claimed the regulation amounted to a taking of its property for which the city should pay compensation. The case, which rose to the Supreme Court of Canada in 2006, marked that court’s first engagement with the doctrine of regulatory taking (also known in Canada as de facto expropriation) in nearly twenty years. " Doug also has a terrific, more academic piece on the case up on SSRN.  It's here.

Map of the Day: A Billionaire Could Buy Your Whole City

Slate captions the map above:

And yes, this is one of those stunt maps generated by a corporate PR department to get their name out on social media. But it’s a particularly fun one, and the methodology isn’t completely absurd. Redfin apparently added up MLS home sale prices for each city, then multiplied them for a total. So, as they put it, if 10 percent of homes sold for $1 billion total, then they decided the city’s housing stock was worth $10 billion. It's not exactly airtight, and of course it leaves out commercial real estate. (Also, if we wanted to be reallllly nitpicky, the mere act of buying up mass tracts of housing would probably drive up prices across a metro area.) But in you ever find yourself wondering which modern plutocrat could theoretically afford to turn your city into his own fiefdom (without running for mayor), now you have a rough guide.

Babie on Property & Religion in a Secular World

Paul Babie (Adelaide) has posted Private Property in Post Secular Law: An Introductory Foray (Queensland Law Journal) on SSRN.  Here's the abstract:

In the global, plural, post-secular legal environment which characterises twenty-first century life, three reflections assist in considering the contribution of Judaism, Christianity and Islam to a re-conception and re-deployment of private property, as a concept, within the broader structures of capitalism and global markets. Such engagements and dialogue between secular law and theology/religion may reveal that what was always viewed as 'secular' law is not really secular at all, and that what is emerging now is a truly post-secular law, one that depends not only upon liberalism but upon overlapping religious anthropologies and cosmologies. The three reflections offered in this article converge on one alternative model, among many, to the standard liberal account of private property, which may in turn sow the seeds of a post-secular model of private property.

Arnold on Adaptive Water Law

Tony Arnold (Louisville) has posted Adaptive Water Law (Kansas Law Review) on SSRN.  Here's the abstract:

U.S. water law can be static, rigid, and fragmented, using legal arrangements to give a false sense of security against change. These characteristics are maladaptive to changing conditions and sudden disturbances, as illustrated by conflict in the Colorado River system over decreasing water quantities, tensions between groundwater management and private property rights in Texas, and litigation over nutrient runoff in the Mississippi River basin. Water law must become more adaptive if aquatic ecosystems, legal institutions, and society itself are to be resilient under conditions of change and disturbance. This article applies a relatively new “adaptive law framework” to the field of water law in order to promote social-ecological resilience in water governance. In particular, the article explores three features of an adaptive water law system: 1) shared risk among the system’s stakeholders; 2) conditional and flexible standards, instead of rigid rules, to govern water rights and permits; and 3) integrated water governance. Several examples of watershed planning and governance illustrate various aspects of an adaptive water law system emerging from system participants’ efforts to address water insecurity and rapid transformation of aquatic conditions. These examples include the Santa Ana Watershed Project in California, the Blackfoot Challenge in Montana’s Blackfoot River basin, state-mandated watershed planning in the State of Washington, adaptive management of Kentucky’s Green River, and watershed restoration and regulation in the urban-suburban Anacostia River watershed of Maryland and Washington, D.C.

The Cities That Sprawled the Most and Least Since 2000

The Atlantic Cities Blog has a couple of neat charts about urban sprawl.  The cities that sprawled the most:

 

Aplin on Confidential Information as Property

Tanya Aplin (Kings College London) has posted Confidential Information as Property? on SSRN.  Here's the abstract:

There has been a long-standing debate about whether the protection of confidential information is a property right. The eminent Professor Finn once described this as ‘[p]erhaps the most sterile of debates’. So why risk venturing into this arena again? My motivation for doing so is the Court of Appeal decision in Veolia ES Nottinghamshire Ltd v Nottinghamshire County Council (‘Veolia’) where it was held, with fairly sparse reasoning, that Article 1 of the First Protocol of the ECHR (‘A1P1’) embraced confidential information. This seemed a surprising conclusion in light of substantial authority to the contrary in English law and the scholarly views on this issue, but also in terms of the potential impact of such a view, i.e. creating a human or fundamental right to the protection of confidential information. Therefore, I want to revisit the question of whether the protection of confidential information that is provided by the (English common law) action for breach of confidence is or should be recognised as property, in particular from the human rights perspective. I intend to tackle this question by first outlining the Veolia decision and subsequently critiquing it in light of relevant authorities. I will then explore the conceptual difficulties of characterising confidential information as ‘property’ and finally, some of the potential risks of doing so.

How Much Choice Do Section 8 Tenants Really Have?

A story out of Pittsburgh says the answer is not much:

In 2010, Aishia Shavers applied for a City of Pittsburgh Housing Choice Voucher in the hope that it would get her a decent apartment to live in with her three children. [...]

In February, after four years on a waiting list, she finally got it. With 120 days to find an apartment, she sent out dozens of emails and made dozens of phone calls. She posted an ad on Craigslist announcing her "desperate need" for a housing choice rental in Pittsburgh. But she couldn't find anything. Most of the landlords said they don't accept the vouchers, widely known as Section 8 (after the section of the 1937 Housing Act that authorized them). Many of them never called her back. A few could only show her their apartments when she had to be at work. One landlord had a place open in Homewood. But he said he wouldn't recommend it for a family because it was in a high-crime area, Ms. Shavers said.

When her voucher expired on May 11, she hadn't even toured an apartment.

The problem isn't so much that there are no landlords that take Section 8, but that most of those units are in rough neighborhoods:

 

An analysis of data from the Housing Authority of the City of Pittsburgh shows that housing choice units in Pittsburgh are disproportionately located in high-poverty, majority-minority neighborhoods like Knoxville, Homewood South and the Middle Hill. In each of those neighborhoods, more than 10 percent of housing was housing choice units in 2011. In Squirrel Hill North and Shadyside, on the other hand, less than a tenth of a percent of the housing was Section 8.

 

 

Burke on Ballot Box Zoning

Marcilynn Burke (Houston) has posted The Emperor’s New Clothes: Exposing the Failures of Regulating Land Use Through the Ballot Box (Notre Dame Law Review) on SSRN.  Here's the abstract:

This Article analyzes the recent trend of regulating land use through ballot initiatives. Most of this activity occurs in jurisdictions west of the Mississippi River, and as the West becomes the new political battleground, the significance of these initiatives continues to grow. Supporters tout ballot initiatives as a positive mechanism of direct democracy, but this Article makes two normative claims to the contrary. First, regulation of land use from the ballot box produces a deliberative failure. Second, such regulation leads to a planning failure. To prove these claims, the analysis focuses on three areas of land use law at both the state and local levels: private property rights; traditional land use regulations; and environmental law. This examination highlights the negative impacts of replacing traditional land use planning and decisionmaking implemented by elected officials with ballot measures decided by an uninformed and oft-manipulated electorate. In so doing, the Article exposes the reality behind the rhetoric of direct democracy. Following this multivariate analysis, the Article makes four proposals for mitigating the harmful effects of legislating at the ballot box. This Article is the first step in a larger project of defusing the rhetoric, with the ultimate aim of making land use law more efficient, ethical, and democratic.

Top SSRN Downloads

In honor of the beginning of the month, here are the most downloaded property articles on SSRN over the last 60 days:

 

1.  [215 downloads]  Stealing Fannie and Freddie
     Jonathan R. Macey (Yale) and Logan Beirne (Yale)

2.  [140 downloads]  Public Lands and the Federal Government's Compact-Based 'Duty to Dispose': A Case Study of Utah's H.B. 148 — The Transfer of Public Lands Act
     Donald J. Kochan (Chapman)

3.  [103 downloads]  Jurisdiction, Choice of Law and Property
     Daniel M. Klerman (USC)

4.  [89 downloads]  No Sticks in My Bundle: Rethinking the Indian Land Tenure Problem
     Jessica A. Shoemaker (Nebraska)

5.  [87 downloads]  Unpermitted Urban Agriculture: Transgressive Actions, Changing Norms, and the Local Food Movement
     Sarah Schindler (Maine)

6.  [85 downloads]  The Elements of Possession
     Henry E. Smith (Harvard)

7.  [80 downloads]  Property Law in a Time of Transformation: The Record of the United States
     Eric T. Freyfogle (Illinois)

8.  [78 downloads]  Property Rights and Climate Change
     Daniel A. Farber (Berkeley)

9.  [78 downloads]  Anaerobic Digestion as a Renewable Energy Source and Waste Management Technology: What Must Be Done for this Technology to Realize Success in the United States?
    Blake Anthony Klinkner (Independent)

10.  [78 downloads]  Passive Takings: The State's Affirmative Duty to Protect Property
      Christopher Serkin (Vanderbilt)