PropertyProf Blog

Lee on Average Reciprocity of Advantage

Brian Lee (Brooklyn) has posted Average Reciprocity of Advantage (Book Chapter) on SSRN.  Here's the abstract:

The concept of “average reciprocity of advantage,” or “in-kind compensation,” is often invoked in property theory but rarely analyzed. The concept’s most familiar application is in defenses of the government’s imposing certain burdens on property owners without paying monetary compensation for the owners’ resulting loss. The government’s action is said to be justified on the grounds that each burdened owner simultaneously benefits from other owners’ bearing the same burden, and this reciprocity makes the burdened owners whole. This paper argues that the classic paradigm of average reciprocity of advantage is best understood as arising from a regulation’s having solved a coordination problem — reaching a result that all parties objectively should have favored but was unattainable through private ordering because of impediments to bargaining — thereby leaving all affected parties better off by their own lights. However, the conditions necessary for such a situation to arise are quite stringent, and when they not satisfied, as is likely often to be the case, the diversity of property owners’ interests and risk tolerances makes it unlikely that the restriction’s reciprocal benefits will dependably make burdened owners whole. Thus, appeals to reciprocal advantage or in-kind compensation will not reliably be able to do the justificatory work asked of them. Nevertheless, this paper argues, it does not follow that in-kind compensation is irrelevant to justifying property regulations. Such a conclusion would itself be inconsistent with broadly and deeply held convictions about regulations’ legitimate scope. Instead, the presence of reciprocal advantages derives its importance not from an illusory potential to make burdened property owners whole, but rather from reciprocity’s role in preserving the respect due to civic equals. The extent to which reciprocal advantages are conferred upon the burdened party can serve as a proxy for the risk of exploitation in the imposition of that burden, and thus can help determine whether those burdens are properly understood as participation in a shared project of civic governance or merely as a naked imposition of power for the benefit of others.

Texas Man Finds Hidden Treasure at Estate Sale

Yahoo News explains:

It didn't take long for Emil Knodell, of Bellville, Texas, to buy a chest for $100 that he soon discovered had a hidden drawer of treasure.

[...] But when he and a staff person from Premiere Estate Sales Network tried to load the piece of furniture into a vehicle, they heard moving metal when they tipped it on its side.

"He asked for help loading it," said Jeff Allen, who works for Premiere Estate Sales Network in Sugar Land, Texas. "As soon as we laid it down, it started making all this racket on the inside. Obviously we were very intrigued with what was happening with the dresser. There were rings, diamonds, gold and all kinds of stuff. It was a real adrenaline rush. Both of us were in shock for a second." [...]  But Knodell said he never thought about keeping the items in the piece of furniture he just bought.

Allen said the dresser dates back to around 1890.

"I bought the chest drawers. I didn’t buy those things. If I kept them, I would never feel right about it. There would be a cloud over the whole thing. It’s a feeling more than anything else," Knodell said.

Gay on Investors Effect on Household Real Estate Affordability

Sebastien Gay (Chicago - Econ) has posted Investors Effect on Household Real Estate Affordability on SSRN.  Here's the abstract:

We examine whether the recent behavior of real estate investors had an effect on housing affordability between 2007 and 2014. We analyze investors’ purchasing and selling behavior and study their spillover effects on the affordability of the local real estate market where they invest. We find that large portfolio investors decrease the affordability in neighborhoods, reselling a property bought at the 37th percentile at the 70th percentile of the market. We also find that in order to maximize yield, investors tend to invest in poorer neighborhoods, leading to a decrease in affordability for lower income population wanting to buy a property in these areas.

Saito on Whiteness as Property in the American Settler Colonial Project

Natsu Saito (Georgia State) has posted Race and Decolonization: Whiteness as Property in the American Settler Colonial Project (Harvard Journal on Racial & Ethnic Justice) on SSRN.  Here's the abstract:

Challenges to institutionalized racism have been largely framed in terms of equitable access to, and redistribution of, the wealth and power accumulated and controlled by those who define themselves as White. If, however, that wealth and power owes its existence to the ongoing colonization of Indigenous lands and peoples, can non-Indigenous peoples of color assert equal rights to the spoils of conquest without tacitly legitimizing and thereby reinforcing the subordination and exploitation of American Indians, as well as Native Hawaiians and Alaska Natives?

This essay begins with a brief overview of how constitutional rights have been constrained by race, focusing first on the limits imposed upon the guarantee of equal protection and then reviewing ways in which Indigenous nations have been excluded from constitutional protection. It proposes that settler colonial theory may better account for contemporary racial realities because it frames the subordination of both Indigenous peoples and non-Indigenous Others not in terms of abstract rights, but in terms of the functions served by their land and labor.

Building on the insights provided by Cheryl I. Harris in her groundbreaking work, Whiteness as Property, this essay considers the integral role Whiteness has played in the construction of both land and personhood as property, concluding that racialization is inherent to property as we know it. Finally, it considers some of the liberatory options that could emerge for all peoples of color from the reconceptualization and reconstruction of property in this society.

Lai et al. on Property Rights & the Coase Theorem

Lawrence Lai (Hong Kong), K.W. Chau (Hong Kong), & Frank Lorne (Hong Kong) have posted 'Unclear' Initial Delineation of Property Boundaries and the Third Coase Theorem on SSRN.  Here's the abstract:

This interdisciplinary study, which references previous research on the evolution of land law and real world examples of land market operating with unclear property boundaries, demonstrates that Ronald Coase’s argument that delimitation of property rights is a prelude to market transaction applies to urban development, in which certitude in initial property boundaries in geodetic terms is not overriding. It explains why even a powerful landlord can be unsure of and do not even want to know the boundaries of the land of his/her tenants and why this mapping limitation in itself does not inhibit market transactions. When land is treated as an input for a chattel that is no longer fixed to land, area measurement is more important than boundary-fixing. When land becomes valued for its location and fixtures (i.e., as real estate), precise boundary delineations and disputes over the precision of cadastral surveys emerge.

Boundary disputes are a particularly painful form of litigation. Feelings run high and disproportionate amounts of money are spent. Claims to small and valueless pieces of land are pressed with the zeal of Fortinbras’ army (Lord Hoffman in Wibberley v. Insley [1999] HL15).

Map of the Day: The Best & Worst Places to Grow Up

The New York Times takes a look at how "place" affects upward mobility:

The places where poor children face the worst odds include some — but not all — of the nation’s largest urban areas, like Atlanta; Chicago; Los Angeles; Milwaukee; Orlando, West Palm Beach and Tampa in Florida; Austin, Tex.; the Bronx; and the parts of Manhattan with low-income neighborhoods.

All else equal, low-income boys who grow up in such areas earn about 35 percent less on average than otherwise similar low-income children who grow up in the best areas for mobility. For girls, the gap is closer to 25 percent.

Many of these places have large African-American populations, and the findings suggest that race plays an enormous but complex role in upward mobility. The nation’s legacy of racial inequality appears to affect all low-income children who live in heavily black areas: Both black and white children seem to have longer odds of reaching the middle class, and both seem to benefit from moving to better neighborhoods.

The places most conducive to upward mobility include large cities — San Francisco, San Diego, Salt Lake City, Las Vegas and Providence, R.I. — and major suburban counties, such as Fairfax, Va.; Bergen, N.J.; Bucks, Pa.; Macomb, Mich.; Worcester, Mass.; and Contra Costa, Calif.

These places tend to share several traits, Mr. Hendren said. They have elementary schools with higher test scores, a higher share of two-parent families, greater levels of involvement in civic and religious groups and more residential integration of affluent, middle-class and poor families.

Here's a link to the interactive map.

(HT: Lua Yuille)

Deakin et al. on Capitalism, Property, and the Constitutive Role of Law

Simon Deakin (Cambridge), David Gindis (Hertfordshire), Geoffrey Hodgson (Hertfordshire), Huang Kainan (Shandong), & Katharina Pistor (Columbia) have posted Legal Institutionalism: Capitalism and the Constitutive Role of Law on SSRN.  Here's the abstract:

Social scientists have paid insufficient attention to the role of law in constituting the economic institutions of capitalism. Part of this neglect emanates from inadequate conceptions of the nature of law itself. Spontaneous conceptions of law and property rights that downplay the role of the state are criticized here, because they typically assume relatively small numbers of agents and underplay the complexity and uncertainty in developed capitalist systems. In developed capitalist economies, law is sustained through interaction between private agents, courts and the legislative apparatus. Law is also a key institution for overcoming contracting uncertainties. It is furthermore a part of the power structure of society, and a major means by which power is exercised. This argument is illustrated by considering institutions such as property and the firm. Complex systems of law have played a crucial role in capitalist development and are also vital for developing economies.

Harder on Water Neutral Development in California

Jennifer Harder (McGeorge) has posted Demand Offsets: Water Neutral Development in California on SSRN.  Here's the abstract:

Water supply is a critical issue for residential, commercial and industrial development in California. The continuing drought in 2015 highlights the erratic nature of water availability, and supply threats are expected to worsen in the future as a result of population growth, increased ecological demand, and uncertainty caused by climate change and other factors. In recognition of the pressing need for careful water planning and innovation, some local governments have adopted a requirement that new development be “water neutral.”

Water neutral policies require new projects to offset their water demand through conservation or new supplies. These policies are implemented in two steps: First, the developer reduces the proposed project’s on-site demand by incorporating efficient water-related fixtures, low-water-use landscaping, and innovative approaches such as recycled water use, greywater reuse, rainwater harvesting, and stormwater capture. The developer then “offsets” any remaining demand by facilitating improvements at existing development within the supplier’s service area. Water neutral programs may require offset ratios greater than 1:1 to address uncertainty about the effectiveness of conservation measures. Sometimes called “demand offset” or “zero footprint” requirements, water neutral programs create incentives for local government and developers to work as partners in pursuing innovative water use technology and supply management.

Water providers praise water neutral policies for their efficiency and sustainability, but most fail to adopt these policies until supplies are nearly exhausted. The reason for that duality is in part practical: By definition, water neutral programs place the burden of financing on- and off-site water demand reduction on new projects, and these costs can be high. When combined with the myriad of other local fees and charges levied on new development, new housing, commercial and industrial projects may become infeasible or less attractive to investors considering alternative projects. Lack of development can affect housing availability, economic recovery and employment — consequences that are particularly onerous during periods of financial crisis and economic recession.

Another concern expressed about water neutral programs is whether they will result in real water savings. There is a fear that homeowners might replace low-flow fixtures or low-water-use landscaping with less efficient fixtures or landscaping, for example, or that developments might otherwise exceed water demand projections. Some water neutral programs address that concern through high offset ratios; others have developed sophisticated enforcement programs that involve deed restrictions, annual reporting, homeowner association oversight, and financial penalties for exceeding water budgets. Local agencies with water neutral program experience cite enforcement as a key issue for program improvement, and seek more reliable, less personnel-intensive methods. In this regard, the enforcement issues faced by water neutral programs are similar to those faced by all water conservation programs in California, including emergency drought response programs. That coincidence of interest suggests a direction for near-term research and action in the statewide water conservation arena.

Challenges notwithstanding, the potential benefits of water neutral programs are numerous. Existing programs claim real annual water savings. Water neutral programs allow economic development to occur where moratoria would otherwise prohibit development, thus facilitating jobs, housing, recreational and other amenities. Through offset programs, existing communities benefit from increased efficiencies without having to invest in them; some water neutral programs focus these benefits within low-income communities that otherwise would not easily implement conservation measures. Water neutral programs may result in more reliable long-term conservation, and can help to achieve statewide conservation targets. Water neutral programs also provide direct incentives for developers to maximize efficiency, encourage investment in technology improvements, and inspire creative thinking about water management.

Water neutral programs provide opportunities for proactive drought planning and improved water supply sustainability. Although not a good fit for every jurisdiction, regional and local water neutral programs have the potential to play a larger role in California’s urban water efficiency portfolio. The state can take steps to realize this potential by investing in legal and technical research related to program design, liability allocation, conservation approaches, and enforcement. A voluntary model water neutral ordinance would assist local governments in designing their own programs.

Fisher on Stalled Foreclosures

Linda Fisher (Seton Hall) has posted Shadowed by the Shadow Inventory: A Newark, New Jersey Case Study of Stalled Foreclosures and Their Consequences (Irvine Law Review) on SSRN.  Here's the abstract:

This project tests the extent to which bank stalling has contributed to foreclosure delays and property vacancies in Newark, New Jersey. Previous studies uncovered considerable evidence of stalled or abandoned foreclosures in other areas of the country. Several found that abandoned foreclosures correlated positively with property vacancies. This is the first study to trace the disposition of each property in the sample through both public and private sources, allowing highly accurate conclusions to be drawn. I reach a similar conclusion to the previous studies: without legal excuse or ongoing workout efforts, banks frequently cease prosecuting foreclosures. The stalled foreclosures in my study, however, do not strongly correlate with property vacancies.

This study is small in scale, involving a random sample of one hundred foreclosures filed between 2007 and the first half of 2009 in a single neighborhood, but my results can be extrapolated to the City of Newark, and to some extent, similar lower-income urban neighborhoods in northeastern states with judicial foreclosure regimes. The national banks that securitized mortgages during the housing boom followed standard practices of targeting communities of color for the worst subprime loans. They also followed national servicing and foreclosure practices adapted to each state’s laws. Further research can confirm the applicability of this hypothesis to other areas of the country. Nonetheless, there is no disagreement that indefinitely stalling foreclosures — without notice to those affected — is poor policy.

Sloan on Adult Social Care and Property Rights

Brian Sloan (Cambridge) has posted Adult Social Care and Property Rights on SSRN.  Here's the abstract:

This paper arises out of the project on adult social care and property rights that the author began at the Centre for Research in the Arts, Social Sciences & Humanities (CRASSH) in Cambridge. It assesses the possible impact of the Care Act 2014 on the provision of social care for elderly and disabled adults in England, focusing particularly on the balance between ensuring adequate care and affecting the property rights of the recipients of social care, their families, and others who might have legal or moral claims to their property (especially via inheritance). The paper uses the European Convention on Human Rights to measure the Act's implications, arguing that normative problems remain despite the Act's general compatibility with the Convention.

California's Water Market

How to you sell water in California?:

To try to understand the difficulties in trading water, I decided to set up a hypothetical exchange. I talked to Dale Melville, manager-engineer of the Dudley Ridge Water District in the southern San Joaquin Valley. "Suppose I’m a farmer in your water district," I told Melville, "and I want to sell my water. I’ve got some old almond trees that aren’t producing anymore, and instead of planting more I’d just like to sell 100,000 acre feet of irrigation water. What do we do first?"

"We’d start by asking if there was anyone in the district who wanted that water," he said. This is just good manners, and if you can sell the water locally you avoid a significant hassle. Then he’d call up a few buyers from around the state. The market is small enough that you learn whom to call, he said.

So he’d make some calls and spread the word: Hey, I’ve got 100,000 acre-feet we are looking to sell at $400 an acre-foot. (The definition of an acre-foot is the amount of water it takes to fill an acre one foot deep — 325,851 gallons.)

One of those likely buyers is the Metropolitan Water District of Southern California — the Los Angeles water system, or Metro for short. Let’s say we agree to a price with Metro and shake hands. Now do I get my check? Melville laughed. "It might take a little while," he said.

Next we’d need to get approval from someone like Nancy Quan at California Department of Water Resources. "If you are going to use our facilities to transport the water, you have to show that the sale is going to have no negative impact to the economy, or the environment, and that it’s not going to injure other water users," she told me. And I’d have to be pretty thorough.

Usually the Department of Water Resources will have a scientist visit me to check out my situation and ask questions. It wants to ensure that I’m actually letting water flow past that I would have used if I weren’t making a sale. I’d have to show that nothing was growing on the land, not even weeds. The whole process might take a couple months, Melville said. (I’m actually making it seem simpler than it is by skipping some subtleties here. To understand the full regulatory process see the chart below, which comes from this white paper.)

Taylor & Doremus on Habitat Conservation Plans and Climate Change

Melinda Taylor (Texas) & Holly Doremus (Berkeley) have posted Habitat Conservation Plans and Climate Change: Recommendations for Policy on SSRN.  Here's the abstract:

The first habitat conservation plan (“HCP”) – the San Bruno Mountain HCP – was approved by the U.S. Fish and Wildlife Service in 1986 and covered 3,500 acres. Since 1986, approximately 670 HCPs have been approved by the Fish and Wildlife Service and the National Marine Fisheries Service (“Services”). They cover almost 47 million acres of land with diverse habitats, including Florida scrub, long leaf pine, limestone karst, Southwest desert, and old growth timber. The vast majority of HCPs have been approved since January 1998, a reflection of the success of policies developed during the Clinton Administration and refined during the Bush Administration that were designed to provide incentives for landowners to protect rare habitats. The Services published their “Habitat Conservation Planning and Incidental Take Permit Processing Handbook” (“Handbook”) in 1996 and an addendum to the Handbook in 2000. The Handbook provides guidance to the Services on the processing of HCPs and the public when preparing HCPs and navigating through the regulatory process.

Climate change is not mentioned in the Endangered Species Act, its implementing regulations, or the HCP Handbook. The impact of climate change on threatened and endangered species and their habitats was not considered by Congress when the Endangered Species Act (the “Act” or “ESA”) was passed, or by the Services when the regulations and Handbook were written. But it is apparent today that climate change is having an impact on fish and wildlife and, even if aggressive mitigation strategies are implemented in the near term, will continue to affect natural systems for decades to come. The Services recognize this and have announced a Climate Action Plan that includes a series of implementation measures, including a commitment to identify which species are most at risk from climate change and to revise Service policies to take climate change into account.

This paper briefly sketches the challenges that climate change poses for successful habitat conservation planning, highlights key policy issues, and makes recommendations at several levels. First, we identify significant overarching complexities associated with addressing climate change in HCPs and recommend steps to address them. Second, at a detailed level, we identify key provisions in the Services’ regulations and the Handbook that seem to be at odds, some requiring that climate change be taken into account while others complicate that task, and recommend revisions to facilitate consideration of climate change impacts on species. Improving the use of adaptive management in HCPs is critical. Finally, we suggest that effective conservation planning in the face of climate change requires that habitat conservation planning be considered in the larger geographic and policy context, and coordinated with other conservation practices. Many, though perhaps not all, of our recommendations may be considered as “best practices” for habitat conservation planning, irrespective of the existence of climate change as an additional stressor.

Developers Ordered to Rebuild Historic London Pub

Now that's a remedy:

The developers who demolished a historic pub in north London without planning permission have been ordered to rebuild the entire building brick-by-brick.

Councillors in Westminster have ordered the Tel Aviv-based owners of the Carlton Tavern, CLTX Ltd, to rebuild the pub within 18 months after it was torn down on 8 April.

The decision was passed at the offices of Westminster City Council on Tuesday evening, the Evening Standard reports. Conservative Maida Vale councillor Jan Prendergast condemned the demolition as “the lawless destruction of Westminster’s heritage.”

Cheever & Owley

Federico Cheever (Denver) & Jessica Owley (Buffalo) have posted Enhancing Conservation Options: An Argument for Statutory Recognition of Options to Purchase Conservation Easements (OPCEs) (Harvard Environmental Law Review) on SSRN.  Here's the abstract:

The most dynamic component of the conservation movement in the United States for the past three decades has been land conservation transactions. In the United States, land conservation organizations have protected roughly 40 million acres of land through transactions. Most of these acres have been protected using conservation easements. Climate change threatens the vast conservation edifice created by land conservation transactions. The tools of land conservation transactions are, traditionally, stationary. Climate change means that the resources that land conservation transactions were intended to protect may no longer remain on the land protected. Options to purchase conservation easements (OPCEs) have long played a modest but important role in conservation law practice. In the world climate change is creating, with its substantial uncertainties and shifting windows of opportunity, OPCEs can serve more complicated and strategic purposes. The ability of OPCEs to serve important roles in protecting land in the context of uncertainty would be significantly increased if state legislatures amend current conservation easement statutes to (1) specifically recognize OPCEs, (2) immunize OPCEs from a range of potential common law challenges, (3) guarantee the durability and transferability of OPCEs, and (4) integrate OPCEs into the burgeoning body of conservation easement law. These statutory amendments would do for OPCEs what conservation easement statutes have done for conservation easements: transform them into an essential multi-purpose tool for conservation in a changing world.

China Moves on Antarctica

Slate highlights China's increased presence in the frozen southlands:

A New York Times piece Monday reports on China’s pursuit of Antarctica’s “resource potential” via the expansion of its research and tourism presence on the continent—moves made with an eye toward establishing a sphere of influence that could become advantageous if and when bans on Antarctic military and mining activity are lifted.

 

Recent indicators of the Asian superpower’s interest in the area include the expansion of nearby krill fishing and a deal with the Australian government to facilitate the resupply of southbound Chinese ships and (potentially, down the line) airplanes. China has two permanent research stations in Antarctica; by comparison, the United States has three and Argentina has six.

 

(Pic: China's Great Wall research station)

Some Better Hiring News: University of New Brunswick Seeks Property Prof

UNIVERSITY OF NEW BRUNSWICK

The Faculty of Law invites applications for two tenure track appointments, anticipated to be at the Assistant Professor level. The starting date is July 1, 2015 or such other date as is negotiated with the successful candidate. The positions are subject to budgetary approval.

The Faculty welcomes applications from outstanding scholars of diverse perspectives and will consider an appointment in any field of expertise, although our current priorities are in the areas of contract law (including insurance); employment and labour law; corporate/commercial law; property law (including environmental law and land use planning); and taxation. Candidates will have a strong academic record and will have, or will be completing, a graduate degree in law or a related discipline. They will have a record of, or potential for, excellence in teaching and research.

Founded in 1892, UNB’s Faculty of Law is a collegial community with a deep commitment to its 250 students. We pride ourselves on having one of the most structured JD programs in Canada. All faculty members contribute to, and are committed to, sustaining the core curriculum, which includes compulsory courses in all three years.

The Faculty’s offices, teaching facilities, and the Gérard V. La Forest Law Library are located together in an attractive setting on UNB’s Fredericton campus, above the St John River, in the capital city of New Brunswick. Faculty and students support a variety of causes and events enhancing the civic life of the school and community. The Faculty is home to the UNB Law Journal/Revue de droit de l’U N-B, a student-produced annual. The Faculty offers many opportunities for collaborative work both inside and outside the University.

Review of applications will begin May 15, 2015 and will continue until the positions are filled. Those who submitted applications in respect of the advertisement circulated last fall need not re-apply. Other interested applicants should submit a curriculum vitae, transcripts of university study, a brief statement of research and teaching interests, and the names, postal and e-mail addresses, and telephone numbers of three referees to:

Interim Dean John Williamson
Attn: P. Hackett
Faculty of Law, University of New Brunswick
PO Box 4400, Fredericton, NB E3B 5A3

Telephone: (506) 453-4627; Fax: (506) 453-4604; E-mail: [email protected]

Meier & Ryan on the Validity of Restraints on Alienation in an Oil and Gas Lease

Luke Meier (Baylor) & Rory Ryan (Baylor) have posted The Validity of Restraints on Alienation in an Oil and Gas Lease (Buffalo Law Review) on SSRN.  Here's the abstract:

This paper explains why a restraint on alienation within an oil and gas lease should be enforceable. The reasons that privately-imposed restraints on alienation are sometimes invalidated simply do not apply to a restraint within an oil and gas lease. Rather, the relationship created by an oil and gas lease justifies enforcement of restraint clauses that have been bargained for by the landowner.

Eisenberg on Environmental Justice Concerns Surrounding Marcellus Shale

Ann Eisenberg (West Virginia) has posted Beyond Science and Hysteria: Reality and Perceptions of Environmental Justice Concerns Surrounding Marcellus and Utica Shale Gas Development (Pittsburgh Law Review) on SSRN.  Here's the abstract:

The debate surrounding the use of hydraulic fracturing (also known as “fracking” or “HF”) to extract natural gas from the Marcellus and Utica shale deposits is often characterized as a tension between economic development and environmental risks. But frequently missing from this dichotomy is the fact that the concerns of many who oppose HF use extend beyond the purely “environmental,” and also include concerns about issues such as “the natural resource curse” and losing autonomy. These concerns ring of “environmental justice” rather than “environmentalism.” Environmental justice espouses the belief that no group should bear disproportionate environmental consequences resulting from industrial activity, and that people affected by industrial activity should be meaningfully involved in implementation. Although the environmental justice movement has existed for decades and some federal and state policies acknowledge its principles, environmental justice has yet to be meaningfully incorporated into any legal framework in the United States.

This Article argues that a nuanced characterization of the HF controversy should include a more robust discussion of both environmental justice and discourse. Part I examines relevant regional economic and social dynamics, including the natural resource curse, Appalachia’s unique vulnerabilities, efforts to portray opponents of shale gas development as “anti-science,” and the environmental justice movement’s relationship to extractive industries. Part II reviews the use of modern HF technology and applicable legal frameworks in West Virginia, Pennsylvania, Ohio, and New York. Part III argues that across Ohio, Pennsylvania, and West Virginia, environmental justice issues have arisen from shale gas development, including problems stemming from information asymmetries, power asymmetries, and limited access to justice. In Part IV, the Article argues that the “anti-science” portrayal of shale gas opponents is unjustified, and that such “discourse-framing” obfuscates the actual costs and limitations on benefits of HF use, and thus, becomes an environmental justice issue itself. Part IV also argues that environmental justice concerns, including the lack of legal remedies for environmental injustice, shaped public sentiment in New York, and that the resulting “moral outrage” added to New York’s policy decision to ban HF altogether. Finally, in Part V, the Article suggests that ideas which transcend the study of “moral outrage”/risk assessment and environmental justice advocacy may offer a way forward.

The New Private Law Blog

Henry Smith (Harvard) and John Goldberg (Harvard) have founded a new blog that will be of interest to many readers: The New Private Law Blog. The blog will feature a wide-ranging discussion of issues concerning the rights and duties of individuals and private entities as they relate to one another. Future blog posts will address topics in contracts, torts, property, intellectual property, remedies, restitution, and related areas.
 
One of the initial posts lists the 50 most-cited private law articles since 1990 (see here).  The top real property related entries:

1.  Lisa Bernstein, Opting out of the Legal System: Extralegal Contractual Relations in the Diamond Industry, 21 J. Legal Stud. 115 (1992)

2. Cheryl Harris, Whiteness as Property, 106 Harv. L. Rev. 1707 (1993)

3.  Michael Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets, 111 Harv. L. Rev. 621 (1998)

4.  Robert Ellickson, Property in Land, 102 Yale L.J. 1315 (1993)

5.  Thomas Merrill & Henry Smith, Optimal Standardization in the Law of Property: The Numerus Clausus Principle, 110 Yale L.J. 1 (2000)

 

Richardson on Abandonment and Adverse Possession

Sally Richardson (Tulane) has posted Abandonment and Adverse Possession (Houston Law Review) on SSRN.  Here's the abstract:

The number of vacant properties nationwide jumped by 4.5 million between 2000 and 2010, an increase of 44%, due to a variety of factors, such as the financial crisis and natural disasters. Vacant properties create a vicious cycle of negative externalities: abandoned property breeds blight and crime, thereby further depressing the economy, which leads to more abandoned property. Solving the problem of abandonment is a top priority for municipal leaders, but effective means of putting abandoned property in the hands of a private owner are hard to come by. Cities have experimented with a variety of solutions ranging from eminent domain to land banks to enticing owners to return to their abandoned property through grant money.

This Article proposes an alternative solution for abandoned property: adverse possession with a reformed possession requirement. This Article argues that the traditional application of the possessory requirement for adverse possession should be modified when the true owner has vacated his property. In this instance, actual possession should be unnecessary; instead, a notice of intent to possess should be sufficient to acquire abandoned property through adverse possession. By altering the doctrine in this manner, adverse possession can be an efficient solution for private parties to acquire ownership of abandoned properties while still offering a temporal safety net to protect true owners. Furthermore, expanding possession in this manner allows the doctrine to serve as a tool for market discovery that encourages adverse possessors and true owners to transfer ownership through voluntary bilateral transactions.