PropertyProf Blog

White City Councils for Black Cities

The New York Times takes a look at why "many city councils in the United States, especially those across the south, fall short of reflecting the demographics of the cities they represent:"

Disparities between the percentage of black residents and the number of black elected officials are facts of life in scores of American cities, particularly in the South. The unrest that followed the shooting death of 18-year-old Michael Brown in Ferguson, Mo., has emphasized how much local elections can matter, and prompted a push there for increased black voter participation.

The disparities result from many factors: voter apathy, especially in low-visibility local elections; the civic disconnect of a transient population; the low financial rewards and long hours demanded of local officeholders; and voting systems, including odd-year elections, that are often structured in a way that discourages broad interest in local races.

Klass on the Siting of Transmission Lines

Alexandra Klass (Minnesota) has posted The Electric Grid at a Crossroads: A Regional Approach to Siting Transmission Lines (Davis Law Review) on SSRN.  Here's the abstract:

The current regulatory framework for approving long-distance, interstate electric transmission lines does not match the physical aspects of the interstate electric grid, regional electricity markets, or the growing but dispersed renewable energy sources increasingly used to power the grid. Despite the interstate nature of the electric grid and electricity markets, the states have virtually complete authority over the siting and permitting of interstate transmission lines. Continuing state authority over the development of the interstate transmission grid is puzzling when compared to the nation’s network of interstate natural gas pipelines, for which regulatory authority was transferred to the federal government in the 1940s. The question for this article is whether the history surrounding the transfer of regulatory authority over interstate natural gas pipelines can be instructive in planning for the future of the electric grid. This article shows that that there was a moment in time in the 1940s when natural gas, which for a century had been limited in its commercial use because of lack of transportation from well sites to cities, became a critical energy resource for the entire nation. At that time, Congress responded by creating a federal regulatory process to build the interstate pipeline network necessary to transport this resource after state regulatory authorities had blocked such pipelines. This article then suggests that the electric grid is nearing a crossroads that justifies a similar shift in regulatory authority over the grid, although not necessarily using the same framework Congress created for siting interstate natural gas pipelines. Instead, this article proposes a regional model for siting interstate transmission lines rather than the purely federal approach used for interstate natural gas pipelines. It sets forth various options for regional siting approaches, including granting Regional Transmission Organizations (RTOs) siting authority over interstate transmission lines within their footprints; interstate compacts under the Energy Policy Act of 2005 to create separate, regional siting authorities; and federal mandates on state public utility commissions and courts to consider regional benefits and needs in making siting and eminent domain determinations.

Do BIDs Create Econimic Growth?

The Journal of Planning Education and Research drops some knowledge:

After the large scale abandonment of central cities in the 1950s-1970s, many urban municipalities lacked both vibrancy in their commercial districts and resources to reinvest in better urban infrastructure and security. Business Improvement Districts (BIDs) emerged as a strategy to help stem the decline of these districts by using special self-taxation powers to finance street upgrading, beautification, and increased security, among other industry-driven services. However, given the costs to businesses from the additional tax burden in BIDs, it is only natural to ask if they are justified by their benefits in terms of economic development.

In a recent article in the Journal of Planning Education and Research, "Are BIDs Good for Business? The Impact of BIDs on Neighborhood Retailers in New York City," Columbia University's Stacey Sutton asks just this question for the United States' largest city (Click the link for Open Access). The study differentiates large scale corporate BIDs, like the one which exists in Times Square, with Destination Bids, existing on important commercial corridors, and smaller Community BIDs, which cover neighborhood level retail corridors.

[...] Somewhat surprisingly, Sutton found that when examining neighborhood retail, sales and employment both declined in small Community BIDs versus the matched non-BID areas, but larger Destination BIDs perform better than comparable areas of the city. This may have been because small BIDs tend to attract small independent retailers, who on average have lower sales volumes and employment than do larger retailers, and they are more susceptible to broader economic shifts. The effects of medium-size BIDs was different. In these larger retail corridors employment and sales increased. This may have to do with the fact that these areas tend to attract large and more stable businesses able to pay higher rents. Sutton concludes that BIDs may not always be the best policy for areas with significant levels of independent retail.

Allen on Property in Blackstone's Commentaries

Jessie Allen (Pittsburgh) has posted Law and Artifice in Blackstone's Commentaries (Journal of Law) on SSRN.  Here's the abstract:

William Blackstone is often identified as a natural law thinker for whom property rights were preeminent, but reading the Commentaries complicates that description. I propose that Blackstone’s concept of law is more concerned with human invention and artifice than with human nature. At the start of his treatise, Blackstone identifies security, liberty and property as “absolute” rights that form the foundation of English law. But while security and liberty are “inherent by nature in every individual” and “strictly natural,” Blackstone is only willing to say that “private property is probably founded in nature.” Moreover, Blackstone is clear that there is nothing natural about the right of inheritance, “a wise and effectual, but clearly a political, establishment.” Indeed, he critiques the assumption that a legal right as central and longstanding as inheritance must be somehow “natural,” observing that “we often mistake for nature what we find established by long and inveterate custom.” At the same time, Blackstone celebrates the many features of common law that have simply been made up. Blackstone’s unflinching formal, fictional, “as if” approach invests property law with a certain materiality. The only way to actualize a make-believe vision is to act it out, to embody it in formal doctrines and practices. In comparison, the modern realist approach to law as an instrument for policy is quite abstract. This leaves realist critics of Blackstonian formalism in the ironic position of arguing for a more transparent approach to law that winds up obscuring the constructive and constructed quality of the legal system that comes through loud and clear in the Commentaries. By openly celebrating legal fictions, Blackstone reveals the truth that law is a great fabrication, not some necessary reflection of the way things are, or should be.

Mapping Brazil's Favelas

The Wall Street Journal looks at the promise and peril of making the favelas "official":

For decades, favelas, the dense working-class neighborhoods that now house nearly a quarter of this city's population, didn't exist on city maps.

Officials considered the informal settlements dangerous eyesores, and they refused to send in cartographers or provide official addresses. But frustrated residents began mapping the communities themselves, hoping to pressure authorities into providing more public services.

Now those efforts are getting a boost from two of the world's biggest technology companies. Google Inc. and Microsoft Corp. have started mapping efforts in recent months in several Rio favelas. Relying largely on community groups, the companies plan to map everything from twisting, narrow alleyways to hole-in-the-wall laundromats.

"The power of putting [favelas] on a map and giving them an online presence is really important to opening them up and getting them integrated into the city," says Esteban Walther, Google's director of marketing for Latin America.

It's also potentially lucrative. And some local groups complain that the technology companies are piggybacking on their efforts, tapping their databases of local businesses in the hope of turning a profit

Animal Crossing Signs Around the World

Because it's Friday you should check these out:

Schleicher on Statehood for D.C.

David Schleicher (George Mason) has posted Welcome to New Columbia: The Fiscal, Economic and Political Consequences of Statehood for D.C. (William & Mary Bill of Rights Journal) on SSRN.  Here's the abstract:

This Essay sketches some of the long-term economic and political consequences of making Washington D.C. the 51st State. The statehood debate has overwhelmingly focused on the same set of issues: the impact of statehood on the federal government’s structure. But if D.C. becomes a state, the most impactful change in its citizens’ lives would not be their new ability to elect members of Congress; it would be the dramatic shift in economics and politics that would come with the transition to having a state rather than city government. On the day “New Columbia” enters the Union, it would bear a constellation of features unprecedented in the nation: the only state wholly part of one metropolitan region, the only state without local governments, and the only wholly urban state. These features have deep implications for the advisability of statehood when compared to the alternatives of retrocession or the stateless status quo and also furnish a blueprint for steps to mitigate the risks and exploit the benefits that statehood would offer.

Part I of the Essay will discuss the special fiscal and economic conditions that New Columbia would face. On one hand, statehood would better allow D.C. to take advantage of periods of economic success. In particular, a state of New Columbia would likely be free of the restrictive confines of the Height of Buildings Act, allowing for greater growth when demand for living in D.C. is high. Moreover, the District would likely also gain greater taxing power (although it would lose some forms of generous federal funding). Yet such benefits come at a price: as a single-city state, New Columbia would face drastic risks in times of downturn. The fact that New Columbia would be entirely in one economic region, and the fact that it would exclusively be the center city of that region, would mean almost necessarily that the state would face substantial financial risks in the case of regional and urban-form related shocks. This pro-cyclical effect makes the case for retrocession stronger, and also suggests reforms like a mandatory rainy day fund if statehood is achieved.

Part II discusses the implications of New Columbia’s unique internal politics. As noted, New Columbia would be the only state without local governments. The absence of separate spheres for local and state elections would have at least two major implications for New Columbia’s politics and policy. First, as a state composed of an overwhelmingly single-party city, New Columbia’s elections would likely be decidedly uncompetitive. Even in the status quo, this absence of party-level electoral competition is a likely cause of many of the pathologies in D.C. politics, from excessive restrictions on growth to its persistent problems with corruption. To ensure the state of New Columbia does not share these defects, any move towards statehood should include reforms aimed at introducing more political competition. Second, and more optimistically, the unprecedented marriage of a city and a state government offers a powerful change for innovation. Historically, the relatively circumscribed legal power of cities has prevented them from pursuing a number of effective policies because such powers are the exclusive province of states. Further, big cities are often losers in state political fights. In this context, New Columbia’s fusion of city and state would provide many opportunities for policy flexibility and discovery unavailable to most big cities.

The Uneven Geography of Obama's Circuit Court Appointments

 

In a moment of great symmetry, both President Obama and President Bush currently have 52 (non-senior) judges working at the Court of Appeals level (I'm counting Roger Gregory as a Clinton appointee).  After falling into a Wikipedia-hole last night, I thought there might be some value in mapping where the appointees of these two-term presidents are plying their craft.  The results are a little surprising. 

I thought that with so many appointments over almost a decade that both presidents would have placed approximately the same number of judges in each circuit.  That pattern holds in a few places.  Both Bush and Obama have seven appointees on the Ninth Circuit.  The 2nd, 3rd, 7th, 10th, and D.C. Circuits also have nearly even splits of Bush and Obama judges.  In some jurisdictions, however, the composition of court has changed radically.  Bush seated 5 members of the 11 judge 8th Circuit (Obama only 1 so far).  President Bush also shaped the 5th and 6th Circuits.  Obama, for his part, upended the composition of the 4th Circuit and his appointments will control the future of the the Federal Circuit and the 1st Circuit for the foreseeable future.  I'll leave it to someone with better knowledge of dockets of these Circuits to speculate on what it might all mean.  At the very least, such imbalance should result in a number of partisan Circuit Splits over the coming years and keep the Supreme Court Justices in their jobs.

Rosenbloom on Local Governments and Global Commons

Jonathan Rosenbloom (Drake) has posted Local Governments and Global Commons (BYU Law Review) on SSRN.  Here's the abstract:

This Article explores the decisions local governments make when appropriating resources from the global commons. Specifically, it focuses on how international and national laws influence local governments when confronting a global commons collective action problem. Local governments often assume a role analogous, but not identical, to that of an individual private actor on a traditional commons. Unlike private actors, however, local governments are subject to a unique set of legal restrictions within an institutional framework that divide authority among the international, national, and subnational layers of governance. This Article analyzes whether the legal restrictions present within the international and national layers influence local government "rational" decision making on the global commons, and whether the division of authority encourages or discourages decision making at the local government level that facilitates the sustainable management of global commons resources. The analysis reveals that local governments are often intimately involved in decisions that influence the global commons, including the global atmosphere. Further, international and national restrictions propel local governments into a tragedy of the global commons by, among other things, diluting and limiting local government authority to address multi-jurisdictional commons challenges. In light of this, the Article reimagines the role of local governments on the global commons. The Article offers three examples which selectively reduce barriers prohibiting local governments from sustainably managing resources without sacrificing national sovereignty or supremacy. The examples are designed to facilitate a discussion on incorporating local governments into international and national policies on effectively avoiding the misuse of global commons resources.

Map of the Day: Are You in the One Percent (of your state)?

 

Business Insider had a map approximating where the cutoff is to be in the top 1 percent by household income in each state.  For reference, the median household income in the country in about $51,000.

The Return of Subprime Loans

Zachary Karabell chronicles the return of one of the villains of the housing crises:

There are also indications of a stealth revival in the subprime mortgage market. Most banks still eschew these loans, having drastically tightened lending standards in the face of regulatory requirements to hold more capital and in response to the billions in fines levied by the Justice Department for shoddy origination and securitization standards pre-2008. But those moves have frozen out millions of would-be homebuyers from credit—an unmet demand that’s precisely what led to the evolution of subprime loans in the first place.

[...]  The fact that subprime loans became the germ of a global financial crisis does not mean that these instruments are inherently poisoned. They were misused and formed the bottom of a corrupt pyramid, but good ideas gone bad are a challenge of human nature, not of recent financial history. Unsupervised origination, zero due diligence of buyers, and opaque packaging of securities can be systemically dangerous. But those are abuses. Financial tools such as subprime financing were designed to be constructive.

In the aftermath of 2008–’09, tight lending standards and even tighter regulations resulted in an unfortunate return to the era before the 1990s, when a low income might mean you were shut out of homeownership, from simple ownership of a car, or from starting a small business. It also meant difficult access to credit for minorities and neighborhoods suffering from some of the industrial decline that started in the 1970s. Subprime was an answer to those challenges and still can be.

Reiss on the GSE Guarantee Fee

David Reiss (Brooklyn) has posted The GSE Guarantee Fee as a Policy Tool on SSRN.  Here's the abstract:

Setting Fannie Mae and Freddie Mac’s guarantee fee rates can have a large impact on the housing market. Setting the rate too low can negatively impact the financial health of Fannie and Freddie. It can also have a positive impact on housing prices because it reduces the overall cost of credit. On the other hand, setting the rate too high can generate excess revenues for the two companies. This would impact Congress’ plans for them as well as possible outcomes for the investor lawsuits arising from the GSE’s conservatorships. And it would also have dampening effect on housing prices, as it would increase the cost of mortgages. While the Federal Housing Finance Agency should consider the broad policy impacts when determining the guarantee fee rate, its main goal should be to set the rate at a level that properly accounts for the guarantee risk borne by the two companies.

Go to Savannah

 

I just returned home from the [Re]Integrating Spaces Colloquium at Savannah Law School.  The event was terrific.  Al Brophy of UNC (and of Faculty Lounge blogging fame) gave a sweeping keynote address on the development of property law from Blackstone to the rise of Progressive Property.  The panel discussions following the keynote were equally energetic, covering topics from slavery to tax credits to road-side memorials.  Congratulations to Marc Roark and Caprice Roberts (and the students of the Savannah Law Journal) for putting on such a great event.     

Along those lines; If you can, find an excuse to give a presentation at Savannah.  The city is fun and beautiful and weird.  It's also exciting to be at a law school so close to its dawn.  Starting a new law school in this economic climate certainly poses some unique challenges.  But there's a real  entrepreneurial spirit amongst the faculty and students that was contagious.  I look forward to seeing where Savannah Law School heads over the next few years.

(Photo: The Author in front of the new Savannah Law School building)

Alexander on the Constitutional Right to Housing

Lisa Alexander (Wisconsin) has posted Occupying the Constitutional Right to Housing on SSRN.  Here's the abstract:

The United States (U.S.) does not recognize a formal legal right to housing. Yet, the right to housing is alive in America. Using qualitative interviews and case studies, this article is the first to argue that recent housing rights movements in the U.S., such as the Occupy movements, instantiate a constitutional right to housing in America through private ordering and local law reform, rather than through constitutional adjudication or federal and state legislation. These social movements manifest the right to housing in America when they mobilize through online social networks; occupy and retain vacant and real estate-owned homes; defend home owners and renters from evictions and foreclosures; encourage municipalities to use eminent domain for principal reduction and property acquisition; and create micro-homes for the homeless. Their legal successes reformulate local property law, increase Americans' acceptance of legal arrangements that reflect the right to housing, and advance well-accepted constitutional norms. This article contributes to the popular constitutionalism debate by arguing that social movements can create constitutional meaning through private and local law reform, as well as through constitutional amendments, constitutional adjudication and federal and state legislation. This article also contributes to law and social movement scholarship by outlining how the Internet and social media help these movements avoid the pitfalls of legal mobilization and develop more flexible, informal and democratic organizing structures. Finally, these case studies demonstrate new ways social movements can shape American constitutional law and property law in the Internet Age.

The Entrepreneur Who Used Private Property to Save Paradise

The Atlantic chronicles the story of Douglas Tompkins--the founder of North Face--who has used his vast fortune to buy up huge swaths of Argentina and Chile.  Tompkins insists that he's preserving the nature wonder of the land but many local remain skeptical:

No one seems to believe what Doug Tompkins and his wife, Kris, are actually doing: They have purchased enough land in Chile and Argentina to equal an area the size of nearly two Rhode Islands, and they plan to donate these ice-coated peaks, red-rock canyons, and coastal volcanoes to the respective governments in the form of national parks. They have protected more land than any other private individuals in history.

[...] Fifteen years ago, in the June 1999 issue of The Atlantic, William Langewiesche wrote about Tompkins’s first major venture into conservation in Chile, describing both Tompkins’s idealistic vision and the infamy that had already shrouded him. The hostility only has only grown as his conservation empire has expanded. Rumors now range from the conspiratorial to the phantasmagorical: Tompkins is creating a second Israel in South America; he is siphoning off the world’s last freshwater resources for other American millionaires; he is building bunkers for a pending nuclear war.

Kelly on Vacant Property Remediation Tools.

Jim Kelly (Notre Dame) has posted Just, Smart: Civil Rights Protections and Market-Sensitive Vacant Property Strategies on SSRN.  Here's the abstract:

This essay, prepared for and published by the Center for Community Progress, a national, non-profit intermediary dedicated to developing effective, sustainable solutions to turn vacant, abandoned and problem properties into vibrant places, examines the legal and normative implications of local governments' use of neighborhood real estate market data to strategically focus vacant property remediation tools. I and other writers, such as Frank Alexander, Alan Mallach and Joseph Schilling, have argued for the importance of understanding the economic feasibility of market-based rehabilitation of derelict, vacant houses in making decisions as to how and when to use a variety of code enforcement, tax foreclosure and land banking mechanisms.

Part I of this essay explains how treating vacant properties in similar states of disrepair differently because of the condition of the properties around them appears to constitute, at least in the short term, vigilant support for healthy neighborhoods and acquiescence to continuing decline in more distressed areas. Because the distressed areas in many of the cities dealing with long-term vacant property problems are far more likely to have high percentages of African-American residents, the first part examines the scope and evidentiary standards of the relevant civil rights law, including the Fourteenth Amendment's Equal Protection Clause, 42 U.S.C. §1982 and the Fair Housing Act.

Part II concludes by outlining recommendations for local jurisdictions looking to create a substantively just and legally compliant approach to vacant property remediation that takes advantage of market-sensitive strategies.

Map of the Day: Open Defecation in India

The Economist elaborates:

CHEER any Indian leader who takes on the taboo of public hygiene, one of the country’s great problems. Narendra Modi, India’s prime minister, says building toilets is a priority over temples. His finance minister, Arun Jaitley, used this month’s budget to set a goal of ending defecating in the open by 2019. That will be 150 years since the birth of Mohandas Gandhi, who said good sanitation was more important than independence.

Ending open defecation would bring immense benefits. Some 130m households lack toilets. More than 72% of rural people relieve themselves behind bushes, in fields or by roadsides. The share is barely shrinking. Of the 1 billion people in the world who have no toilet, India accounts for nearly 600m.

The costs are high. Public safety is one underappreciated problem, as young women have to leave their rural homes after dark. In May two teenage girls in Uttar Pradesh visiting a field used as a communal toilet were raped, murdered and strung up from a tree. That case won notoriety for its extreme barbarity, but similar attacks are distressingly common.

A broader matter is public health. Open defecation is disastrous when practised by groups in close contact with each other. Because India’s population is huge, growing rapidly and densely settled, it is impossible even in rural areas to keep human faeces from crops, wells, food and children’s hands. Ingested bacteria and worms spread diseases, especially of the intestine. They cause enteropathy, a chronic illness that prevents the body from absorbing calories and nutrients. That helps to explain why, in spite of rising incomes and better diets, rates of child malnourishment in India do not improve faster. Unicef, the UN’s agency for children, estimates that nearly one-half of Indian children remain malnourished

Szto on Real Estate Agents as Agents of Social Change

Mary Szto (Hamline) has posted Real Estate Agents as Agents of Social Change: Redlining, Reverse Redlining, and Greenlining (Seattle J. for Soc. Just) on SSRN.  Here's the abstract:

This article examines the role of US real estate agents in redlining, reverse redlining, and greenlining practices. Redlining was the practice of the Federal government, private banks, and other institutions to deny credit to neighborhoods based on race. Reverse redlining is marketing inferior credit and other products to those same neighborhoods. Greenlining is incenting investment in previously redlined neighborhoods. This article argues that although many real estate agents used practices that unjustly excluded access to neighborhoods, all can be faithful agents of inclusion to global, flourishing communities. That is, while real estate agents took leading roles in redlining and reverse redlining in the past, they can now lead in greenlining efforts. Moreover, those who want to effect greater access to global flourishing communities should consider becoming real estate agents.

Bike Lanes Speed Up Traffic?

At least in New York (the full story has some nice graphics):

Since 2007, New York City has added 31 miles of protected bike lanes — that is, lanes protected by a physical barrier, such as a row of parked cars or a curb.

The main point of building protected lanes was to make biking in the city safer. But when the NYC Department of Transportation recently studied the impact of the lanes, they found a secondary benefit: on several different avenues in Manhattan, the lanes actually helped speed up car traffic.

[...]  So how did the bike lanes speed up traffic? It seems that two factors were important.

One is that, for the most part, driving lanes weren't actually eliminated when they bike lanes were built — they were simply narrowed. Additionally, the design of the bike lanes included a dedicated left-turn lane at most intersections, allowing cars to wait to turn left without holding up traffic.

Outka on Intrastate Preemption in the Shifting Energy Sector

Uma Outka (Kansas) has posted Intrastate Preemption in the Shifting Energy Sector (Colorado Law Review) on SSRN.  Here's the abstract:

The U.S. energy sector is in a state of transition, at once moving toward cleaner energy resources, but also expanding the use of fossil fuels with new access to oil and gas plays. Although federalism concerns have dominated the literature, I argue here that the state-local relationship and intrastate preemption are shaping energy policy in important and under-examined ways. The energy transition to date has been marked by growth centered on hydraulic fracturing (fracking) and commercial wind development, both of which are mostly regulated at the state level. Local governments have exerted authority over both forms of energy production, although state-local tensions in the fracking context have been especially pronounced. Hundreds of localities have opposed or sought to contain the effects of fracking through official action, including bans and moratoria.

This striking trend, considered alongside local responses to wind development, provides a fresh lens through which to assess the role of intrastate preemption in the shifting energy sector. By approaching fracking and wind together, this Article represents a departure from the largely resource-segregated literature in favor of greater scholarly coherence on energy transition. As this Article explains, the doctrine of intrastate preemption, though it hews close to its federal analogue, is uniquely nuanced by the variability of state-local power structures. I develop the claim that the unpredictable legal environment resulting from this variability works to enhance the prospects for local governments, and even more localized property interests, to inform national energy discourse.