Thursday, April 16, 2015

The Strange World of the Golden Gate Painting Crew

PaintThe Atlantic Cities Blog profiles the men and women who continually paint the Golden Gate Bridge to keep it from rusting and crumbing into the ocean:

The Golden Gate Bridge is under attack. Corrosive salt air, roadway contaminants, age, UV rays—all these things are trying to turn the majestic span into a pitted skeleton.

Luckily the bridge has a powerful ally: an elite squad of painters, numbering just a few dozen. These busy operatives scurry up, down, and around the span on a never-ending quest to keep it protected and looking sharp.

The job has its ups and downs. There's the swinging through the sky, the whale-watching, and the wielding of badass tools reminiscent of alien torture implements. Less nice, there's a weird kind of marine vertigo and regular exposure to suicides.

April 16, 2015 | Permalink | Comments (0) | TrackBack (0)

Kochan on Legal Rules That Support Owners' Ability to Keep Their Property

Kochan_DDonald Kochan (Chapman) has posted Keepings (NYU Environmental Law Journal) on SSRN.  Here's the abstract:

Individuals usually prefer to keep what they own. Property law develops around that assumption. Alternatively stated, we prefer to choose whether and how to part with what we own. As with the affection and attachment we have for our memories captured in the lyrics of the George Gershwin classic, so too do most individuals adopt a “they can’t take that away from me” approach to property ownership.

We often focus on the means of acquisition or transfer in property law. We less often look at the legal rules that support one’s ability to keep what she owns. Yet, it is precisely the ability to keep property that motivates its acquisition and that serves as a necessary element in offering any property up in a transaction as well – the property’s value is directly correlated with the buyer’s confidence in the seller’s authority to transfer (which can only exist if the owner also has the authority to keep it, i.e. not transfer) and with the buyer’s own confidence in his ability keep the property once he acquires it in the transfer.

This Article will catalog and evaluate a variety of doctrines, assumptions, presumptions, principles, and guidelines that exist for the purposes of aiding owners in keeping their property. I use “keepings” and “keepings rules” as terms that will refer collectively to these parts of the substantive law and legal infrastructure. Included is an analysis of these keepings rules within a Hohfeldian framework of immunities. In conclusion, the Article explains why these keepings rules are a necessary and vital component of an effectively operating property system.

April 16, 2015 | Permalink | Comments (0) | TrackBack (0)

Hudson on Gerhart’s Property Law and Social Morality

BhudBlake Hudson (LSU) has posted Moral Obligation and Natural Capital Commons on Private Property: Perspectives on Peter Gerhart’s Property Law and Social Morality (Tex. A&M J. of Real Prop. L.) on SSRN.  Here's the abstract:

Peter Gerhart's "Property Law and Social Morality" provides a new lens through which to view the distribution of burdens and benefits of property ownership. Gerhart argues that property owners have a legally enforceable moral obligation to be other-regarding in their management of resources subject to their control. One way this moral obligation is articulated is through codification within positive public law enacted by society using the veil of ignorance. Gerhart's theory fills a gap in privatized commons resource theory by demonstrating that property owners have a moral obligation to be other regarding in their management of common pool natural resources spreading across the aggregate of private and public properties constituting the environment. This obligation means that property owners are not legally entitled to compensation under positive law that restricts the appropriation of those resources, unless positive law interferes with a property owner's right to exclude others from the land base. This book review details the intersection of Gerhart's property theory with privatized commons resource theory, demonstrating a tangible application of his theory in practice.

April 16, 2015 | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 15, 2015

The Greatest Property Tattoo Ever?


The Edith Macefield story (In short: Old woman refuses to sell beloved house to corporate overlords) has inspired perhaps the greatest set property-themed tattoos of all time.   Check out the video below for more examples.

April 15, 2015 | Permalink | Comments (0) | TrackBack (0)

Adams-Schoen on Role of Local Governments in Climate Change Adaptation

SasSarah Adams-Schoen (Touro) has posted Sink or Swim: In Search of a Model for Coastal City Climate Resilience (Columbia Journal of Environmental Law) on SSRN.  Here's the abstract:

Although the threats of global climate change are by no means limited to coastal areas, coastal cities face extreme and unique challenges. Global temperatures are increasing and the rate of increase is accelerating with corresponding increases in sea levels, acidification of oceans, and losses of flood mitigating wetlands. Storms and other extreme weather events are increasing in frequency and severity. As a result, coastal communities are already experiencing rising sea levels, eroding shores, more massive storm surges, more severe storms, salt water intrusion, loss of land and changes in marine resources and all cities can expect increased incidences of, and more extreme, storms, heat waves, droughts, and other extreme weather conditions. New York City in particular faces grave threats from climate change.

Part I of this article examines the role of local governments in climate change adaptation and mitigation. Part II discusses climate change mitigation and adaptation initiatives New York City undertook before and after Super Storm Sandy. Part III assesses the City’s initiatives, evaluating which initiatives provide role models for other municipalities as well as key challenges posed by the City’s approach.

April 15, 2015 | Permalink | Comments (0) | TrackBack (0)

Peck on Legal Challenges in Government Imposition of Water Conservation

PeckJohn Peck (Kansas) has posted Legal Challenges in Government Imposition of Water Conservation: The Kansas Example (Agronomy Journal) on SSRN.  Here's the abstract:

This article deals with legal challenges in conserving water in the United States, using Kansas as an example. The focus is on one aspect of American water allocation law — the extent to which a state can force reductions in pumping by holders of water rights. It explains the hybrid nature of water rights, which on the one hand are “real property rights,” and yet on the other hand they are viewed as rights only to use water and not to own the water itself. Because they are a kind of property right, they are protected by the fifth amendment to the U.S. Constitution against “takings” by the government without compensation. The question becomes: to what extent, then, can states demand reductions in pumping without having to pay compensation? The answer is difficult for both water right holders and government officials to predict. The law of groundwater rights in Kansas illustrates the problem. The article describes the Kansas law in the context of other states on this issue, including the historic changes in Kansas’ water law doctrines, water management under the appropriation doctrine, the public trust doctrine, groundwater management districts, and intensive groundwater use control areas, as well as recent attempts to foster voluntary actions by water right holders that avoid government imposition of restrictions. Questions remain in Kansas and elsewhere about where the line can be drawn, between acceptable government restrictions and unacceptable takings of property. Future drought caused by climate change will focus even more attention on this question.

April 15, 2015 | Permalink | Comments (0) | TrackBack (0)

Monday, April 13, 2015

Symbol of Anti-Corporate Defiance on Last Legs


The New York Times details the fate of Edith Macefield's house.  In 2006, Macefield famously refused to sell her home to developers - even when they offered $1 million for her 600 square foot bungalow.  The developers, in response, bought all the surrounding land and simply built their mall around Macefield's tiny house. 

Most people call it the “ ‘Up’ House,” for its resemblance to the house in the Disney movie “Up,” about an old man who, finding himself unhappily headed toward a retirement home, attaches balloons to his little wooden home and floats away. In real life, the house’s owner, Edith Macefield, did the opposite and anchored herself down as development encroached on her block in the Ballard neighborhood in 2006. The two-story house is now abutted on three sides by taller commercial buildings.

Ms. Macefield, who died in the house in 2008 at age 86, was widely reported to have refused $1 million to vacate. As the project went up anyway, her name and reputation were emblazoned into stiff-necked legend.

Now her 600-square-foot bungalow, built around 1900, is entering what may be its final chapter, and that is prompting a new pilgrimage of visitors like the Engins — who are coming to say goodbye, or to pin a balloon with a scrawled message, or in some cases just to stand and stare. An investment management company in North Carolina, which took the property after a mortgage default last month by an owner after Ms. Macefield, is selling the house and taking bids until April 20.

Zoning now precludes residential use without a variance from the city in what is primarily an industrial and commercial district, and demolition is a distinct possibility, said the broker handling the sale, Paul Thomas. He added, though, that the seller would like some commemoration of Ms. Macefield and her life, and even might take a lower offer if it properly honored her legacy.

April 13, 2015 | Permalink | Comments (0) | TrackBack (0)

Merrill on Anticipatory Remedies

MerrillThomas Merrill (Columbia) has published Anticipatory Remedies for Takings (Harvard Law Review).  Here's the abstract:

The Supreme Court has rendered two lines of decisions about the remedies available for a violation of the Takings Clause. One line holds that courts have no authority to enter anticipatory decrees in takings cases if the claimant can obtain compensation elsewhere. The other line, which includes three of the Court’s most recent takings cases, results in the entry of an anticipatory decree about takings liability. This Essay argues that the second line is the correct one. Courts should be allowed to enter declaratory or other anticipatory judgments about takings liability, as long as they respect the limited nature of the right created by the Takings Clause and do not usurp the limited waivers of sovereign immunity for actions to recover compensation from the government. Anticipatory litigation should not be routine. In ordinary condemnation cases and in most regulatory takings cases that turn on the particular facts presented, the action seeking compensation should provide complete and adequate relief. But where remitting property owners to an action for compensation will result in an incomplete, impractical, or inefficient outcome, anticipatory relief about whether a taking has occurred is appropriate and should be permissible. The Essay argues that recognizing the appropriate role for anticipatory remedies under the Takings Clause would help reduce the many pitfalls of litigating takings claims, and provide more consistent and effective enforcement of this constitutional right.

April 13, 2015 | Permalink | Comments (0) | TrackBack (0)

Echeverria on Eschewing Anticipatory Remedies for Takings

Echeverria_JohnJohn Echeverria has published Eschewing Anticipatory Remedies for Takings: A Reply to Professor Merrill (Harvard Law Review).  Here's the piece's conclusion:

For the past thirty years or so, the Takings Clause has served as the favorite vehicle for judges, scholars, and advocates seeking to make the Bill of Rights a more robust bulwark against regulation of economic interests by democratically elected government. By virtue of its language and its original intended purpose, the Takings Clause has never been a very good candidate for this role. Nonetheless, the frequently discussed (and probably exaggerated) doctrinal uncertainties of takings law have made it a relatively fertile field for the propagation of new ideas. But too much logic and too much history appear to stand in the way of the latest innovative proposal for expanding takings law: anticipatory remedies. The Takings Clause — also known as the Just Compensation Clause — is all about just compensation, and there is no sound reason for changing that now. Professor Merrill has offered up many useful and important ideas over his distinguished career, but anticipatory remedies for takings is not among them.

April 13, 2015 | Permalink | Comments (0) | TrackBack (0)

Friday, April 10, 2015

Case of the Week: Sex Offender Registry Law Struck Down

From Joe Singer's Blog:

The California Supreme Court has struck down a voter initiative that barred all sex offenders from living within 2000 feet of schools and parks. In re Taylor, 83 U.S.L.W. 1299, 2015 BL 54822 (Cal. 2015). The court held that the ban deprived sex offenders of liberty without due process of law because it rendered many sex offenders homeless and was not reasonably related to government interests in protecting children. Because 97 percent of the county was off limits to sex offenders, many had no place where they could live or receive medical treatment and services, depriving them of constitutionally protected liberty interests. The law also  made it difficult or impossible for the sex offenders to be monitored by parole officers, thereby defeating the purpose of the regulation and depriving it of any rational relationship to the legitimate government objective of protecting the public.

April 10, 2015 | Permalink | Comments (0) | TrackBack (0)

Iglesias on Inclusionary Zoning, Affordable Housing, & Integration

IglesiastTim Iglesias (San Francisco) has posted Maximizing Inclusionary Zoning's Contributions to Both Affordable Housing and Residential Integration (Washburn Law Review) on SSRN.  Here's the abstract:

Inclusionary zoning is a popular policy that can uniquely serve both affordable housing and fair housing goals at the same time. Assuming the U.S. Department of Housing and Urban Development finalizes its proposed “Affirmatively Furthering Fair Housing” regulation, inclusionary zoning will become more broadly used. But more extensive use of inclusionary zoning poses both opportunities and risks for housing advocates because of the following three issues: (1) Unacknowledged tradeoffs between affordable housing and fair housing goals in inclusionary zoning design and implementation; (2) Conflicting concepts of residential integration; and (3) Legal challenges to inclusionary zoning. The challenge facing inclusionary zoning supporters is: How can we maximize the complementary nature of inclusionary zoning’s affordable housing and fair housing goals? This article explores the challenges and makes recommendations.

April 10, 2015 | Permalink | Comments (0) | TrackBack (0)

Roark on the Antelope, Slavery, & Property

RoarkMarc Roark (Savannah) has posted Slavery, Property, and Marshall in the Positivist Legal Tradition (Savannah Law Review) on SSRN.  Here's the abstract:

In 1819, a slave ship called the Antelope entered the harbor of Savannah carrying Africans originally detained as slaves on U.S., Spanish and Portuguese vessels. John Marshall four years later would hold that slaves originally captured on U.S. ships were entitled to their freedom, while those originally held by Spanish and Portuguese interests should be returned to slavery, pending proof of claim. Marshall's opinion implicitly sets law and morality at opposite poles, freeing the law to undertake morally questionable acts. This essay examines the tension underlying Marshall's opinion that positivism's negative effects (here the establishment of slavery outside of a moral order) continue to have pervasive consequences, even after legal regimes change. For example, the disarming of the transatlantic slave act by Congress in 1807 did not prevent Africans on board the Antelope from being transported away from their homes, held for four years pending judicial decision, and then held an additional two years while ancillary claims to their freedom were resolved. The essay suggests that property's static nature preserves institutions even after they've been deemed illicit by other law.

April 10, 2015 | Permalink | Comments (0) | TrackBack (0)

Thursday, April 9, 2015

Cunningham on the Holdout Problem in Land Assembly

CcunninghampChris Cunningham (Federal Reserve Bank of Atlanta) has posted Estimating the Holdout Problem in Land Assembly on SSRN.  Here's the abstract:

The Supreme Court's recent decision in Kelo v. New London allows the use of eminent domain to facilitate private economic development. While the court's condition for allowing takings was highly expansive, there may be a market failure that warrants state intervention when parcels of land need to be combined for redevelopment. The collective action or strategic holdout problem associated with land assembly may limit redevelopment of older communities when one or more existing owners seek to capture a disproportionate share of the potential surplus. The problem may be compounded by landowners' uncertainty as to the true value of the expected surplus to be divided (Eckart, 1985; Strange, 1995). At the same time, developers may attempt to disguise the assemblage through the use of straw purchasers. This paper employs administrative Geographic Information System and assessor data from Seattle, Washington, to identify lots that were ultimately assembled. The paper then matches them to their pre‑assembly sales. Controlling for lot and existing structure characteristics and census tract-year fixed effects, I find that land bought in the process of a successful assembly commands an 18 percent premium. Consistent with theory, this premium falls with a parcel's relative size in the assemblage. I also find some evidence that parcels toward the center of the development may command a larger premium than those at the edge, suggesting that developers retain or are perceived to retain some design flexibility.

April 9, 2015 | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 8, 2015

Local Governments Seize Dogs, Shake Down the Poor


A depressing story from CNNMoney that should raise the ire of our pet-owning readers:

California resident Gerilynn Aflleje was horrified when her 4-year-old Siberian Husky mix was killed by a local animal shelter over $180 in fees that she couldn't afford.

Her dog, Chunk, had been dropped off at the Stockton shelter after getting lost in 2013, she later explained at a city council meeting. When Aflleje discovered her dog there less than a week later, she said the shelter demanded $180 within 24 hours for storing Chunk.

Unemployed, Aflleje couldn't get the money in time. "We didn't only lose our pet. We lost a family member," she said.

In a number of cities across the country, animal control agencies are aggressively going after pet owners with big fines for small violations. Some hold people's pets until they settle their bills, even if it means they end up killed. Others leave the dogs alone but issue arrest warrants for owners who can't pay up.

(HT: Rebecca Tushnet)

April 8, 2015 | Permalink | Comments (0) | TrackBack (0)

Conference Announcement: The Law of Charity


From our friends at the University of Montreal comes news of this conference with a remarkably accomplished (and international) set of participants:

Charity is big business.  At present, it is estimated that Canada has more than 85,000 charitable organisations holding more than $55 billion in assets.  In the United States, the numbers are even more staggering, where nearly 300,000 charities combine to control almost $3 trillion.  The situation is the same in other Commonwealth countries, where massive amounts of money is held by private entities engaged in providing services designed to relieve poverty, advance education, promote religion or provide other benefits to the public.

Rather surprisingly, until recently, the organisation and activities of charitable foundations have largely escaped public notice or substantial government regulation.  Indeed, it is somewhat surprising that with so much money moving about the voluntary sector governments have not been more aggressive in attempting to ascertain how that money is obtained and how it is spent.  This is especially puzzling given the fact that one of the most important aspects of charitable organisations is that their income is generally tax free.

The past decade has seen a dramatic shift in governments' approach to the problems of the charitable sector.  Legislators and policy-makers have begun to turn their attention to the activities of private sector charities with a view toward regulating their work and making their operations more transparent.

This conference will bring together scholars from around the common law world to consider both the normative and practical questions of regulating charities.  It will discuss the future of charities law and develop both avenues for continuing research as well as concrete proposals for reform.

Keynote Speaker:

Judge Alison McKenna, Principal Judge, First-tier Tribunal (Charity)(England & Wales)

 Participants include: Mary Synge (Cardiff), Matthew Harding (Melbourne), Adam Parachin (Western), Michael Lubetsky (Davies), Oonagh Breen (UCD), Mark Sidel (Wisconsin), Dana Brakeman Reiser (Brooklyn), Aline Grénon (Ottawa), Evelyn Brody (Chicago-Kent), Roger Colinvaux (Catholic), Debra Morris (Liverpool), Kathryn Chan (Victoria), Anne-Sophie Hulin (McGill), & Hubert Picarda QC

April 8, 2015 | Permalink | Comments (0) | TrackBack (0)

Chakraborti & Pistor on Property Reforms in Post-1980 India

Aretha Chakraborti (Independent) & Katharina Pistor (Columbia) have posted The Cost of Exclusion: On the Dynamic Effects of Property Reforms in Post-1980 India on SSRN.  Here's the abstract:

Property rights are widely considered foundational for economic development and prosperity. Clearly allocated property rights are said to create incentives for owners to invest in and internalize the costs associated with their assets. Inevitably, delineating and allocating property rights benefits some while excluding others. As Harold Demsetz recognized years ago, property rights promote the internalization of costs and benefits of ownership, but they also create externalities, including exclusion. Much of the literature ignores this exclusion and instead focuses on the efficient use of assets. In contrast, we investigate the effects of property rights on those excluded from land or housing placed into individual ownership. We use India as a case study. With its more than one billion people and substantial diversity among its 29 states, the country provides an excellent case for studying how property reforms introduced across the country since the early 1980s produced vastly different outcomes as they interacted with other pre-existing factors. We use descriptive statistics to demonstrate the dynamic effects of property reforms at the national and state levels. Close inspection of six states that deviate from national trends allows us to unpack factors of particular relevance in a given location. This factors identified in an inductive fashion can be used to analyze and predict the likely impact of property reforms in India and elsewhere. The framework also calls attention to the need for considering the cost of exclusion not only ex post, but also in ex-ante policy design.

April 8, 2015 | Permalink | Comments (0) | TrackBack (0)

Yuille on Street Gangs

YuilleLua Yuille (Kansas) has posted A Property & Economic Approach to Street Gangs on SSRN.  Here's the abstract:

This article offers a fresh analysis of and solution to problems modern, American street gangs present: Local governments should pay gang members to refrain from gang related activity. Common wisdom dictates that, since they commit crimes, gangs should be understood and combated criminologically, through criminal sanctions. Popular interventions, like gang injunctions, expand that punitive orientation into civil strategies. But, gang criminality is merely a manifestation of a broader property-based disease. Therefore, those strategies will be ineffective and inefficient, as evidenced by the continuing rise in gang membership across the United States.

The consensus in gang research is that gangs are not crime syndicates; they are capitalist social institutions creating and operating in alternative markets. Violence and criminality are secondary or tertiary facets of gangs, resulting from the inaccessibility of mainstream markets. Integrating these findings into a unique synthesis of disparate threads of property theory — from Charles Reich’s The New Property and Margaret Radin’s Property and Personhood to Cheryl Harris’s Whiteness as Property — it is clear that gangs’ primary purpose is to pursue the forms of property central to human identity. That insight frees anti-gang strategies from the strictures imposed by criminal law, but reveals social justice considerations not normally associated with gangs.

On that basis, the article presents a novel idea: Gangs are recreating a traditional market-based property system, so the approach to the problems associated with them should be market-inspired. In the market, actors are paid to induce desired behavior. Therefore, local governments should compensate gang members for non-participation in legal (but undesirable) gang activity. The article tests this proposal using Calabresi and Melamed’s framework for allocating and protecting entitlements advanced in Property Rules, Liability Rules, and Inalienability Rules: One View of the Cathedral. That analysis shows that the so-called “paid injunction” is a more effective and efficient approach to curbing the non-criminal activities of gangs that simultaneously advances the social justice concerns revealed by the property law analysis.

April 8, 2015 | Permalink | Comments (0) | TrackBack (0)

Friday, April 3, 2015

The Water Situation in California


The drought there is forcing a serious rethink about how to deal with water rights.  Things are about to get more intense for California's farmers (who use 80 percent of the state's water):

So what's in Governor Brown's mandate for farmers? Basically, a lot of number-crunching. Agricultural water users will be required to report in greater detail their water-use information to state regulators. Large agricultural suppliers are also changed with developing water-management plans, due in July 2016.

Data reporting probably sounds a little lax as a mandate, compared to the drastic cuts that urban areas are expected to make. Some are already disappointed. "The Governor must save our groundwater from depletion by directing the State Water Board to protect groundwater as a public resource," Adam Scow, Director of Food & Water Watch California, said in a statement.

There's no question that legislators and farmers can do more to cut back on agricultural water use intelligently, such as fostering a stronger water market and, indeed, strengthening groundwater regulation.

Yet Brown's task for farmers is an important step, because it recognizes how poorly the state manages agricultural water allocations. California has a notoriously byzantine approach, with laws dating back to the 19th century that allow water rights to the families who originally staked claims on rivers and streams. Those senior and riparian rights holders—almost entirely held by agricultural and corporate entities, according to the AP—continue to report their water use on what's basically an honor system, with information that's riddled with inaccuracy and often out of date.

April 3, 2015 | Permalink | Comments (0) | TrackBack (0)

Sawers on the History of the Law of Trespass

Brian Sawers has posted Original Misunderstandings: The Implications of Misreading History in Jones (Georgia State Law Review) on SSRN.  Here's the abstract:

This article shines light on a little-noticed but important error in United States v. Jones, the recent Supreme Court Fourth Amendment decision. In Jones, the majority opinion and Justice Alito’s concurrence quibble whether the majority applies “18th-century tort law” in holding that the government’s trespass constitutes a search. Both opinions mistakenly assert that any unwanted intrusion on private property was actionable at common law. While true in England, the American law of trespass provided no remedy for unwanted intrusions to unfenced land.

Current Supreme Court Fourth Amendment jurisprudence recognizes the open fields doctrine, which allows the government to search open land without a warrant. There is little indication now that the Supreme Court wants to overrule the doctrine, so the Justices’ nonchalant approach to history might not change the scope of the Fourth Amendment. But the error could have a serious impact on property law. In recent years, the Supreme Court has exhibited a healthy appetite to both expanding the regulatory takings doctrine and imposing a judicial takings doctrine based on historical nonsense.

April 3, 2015 | Permalink | Comments (0) | TrackBack (0)

Cheng & Chung on Designing Property Rights of Land in Rural China

Yuk-Shing Cheng (Hong Kong Baptist University) & Kim-Sau Chung (The Chinese University of Hong Kong) have posted Designing Property Rights of Land in Rural China on SSRN.  Here's the abstract:

This paper takes the special features of land seriously, and study the efficient design of its property rights against the backdrop of social security. In particular, we explain why (i) tenure insecurity and (ii) restrictions on the right to transfer, two features that are often frown upon by economists, can play a positive role in an efficient design of property rights of land in rural China. Our model does reasonably well in matching the variation (across both time and regions) of China’s rural land system: tenure is more insecure and restrictions on the right to transfer more severe in inland regions (vis-a-vis coastal regions) and at earlier stages of the reform.

April 3, 2015 | Permalink | Comments (0) | TrackBack (0)