PropertyProf Blog

Map of the Day: Confederate Flag Shopping

The Washington post elaborates:

This map by Jody Sieradzki of Dadaviz shows which flag people in different states searched more on Google Shopping between January 2008 and June 2015: the U.S. flag or the Confederate flag. The states in black -- most of them -- shopped more for the American flag. The states in red -- Virginia, North Carolina, Georgia, Illinois and Texas -- searched more often for the Confederate flag.

According to the data from Google Trends, North Carolina showed the most interest overall in buying the Confederate flag, followed by Virginia, Georgia and Texas. Perhaps surprisingly, Pennsylvania ranked next, followed by Illinois and Florida.

Many of these searches were actually for flag-emblazoned clothing, rather than the flag itself. When people searched for the Confederate flag, they most commonly searched for bikinis, shirts and belts (Google doesn't provide data on which states specifically searched most for Confederate flag bikinis or belt buckles). For the American flag, the more common searches were shirts, shorts, and tank tops.

Book Announcement: Landmark Cases in Property Law

Landmark Cases in Property Law

Edited by Simon Douglas, Robin Hickey and Emma Waring

 This book explores the development of basic principles of property law in leading cases. Each paper considers a case on land, personal property or intangibles, discussing what that case contributes to the dominant themes of property jurisprudence - how are property rights acquired? What is the content of property rights? What are the limits or boundaries of property? How are property rights extinguished? Individually and collectively, the papers identify a number of important themes for the doctrinal development of property institutions and their broader justification. These themes include: the obscure and incremental development of seemingly foundational principles, the role of instrumentalism in property reasoning, the influence of the law of tort on the scope of property doctrines, and the impact of Roman legal reasoning on the common law of property. One or more of these themes (and others) is revealed through careful case analysis in each paper and they are collected and critically explored in the editors' introduction. This makes for a coherent and provocative collection.

Simon Douglas is a Fellow and Tutor in Law at Jesus College, Oxford University.

Robin Hickey is a Senior Lecturer in Law at Queen's University Belfast.

Emma Waring is a Lecturer in Law at York Law School, The University of York.

The publisher is currently offering a 20% discount on the book.To order online please click here and then click on the ‘pay now’ button on the right hand side of the screen. Once through to the ordering screen type ref: CV7 in the voucher code field and click ‘apply’

Is This Man the World's Greatest Landscape Architect

The Atlantic profiles the work of James Corner, the architect who designed the High Line in New York and has now turned his attention to Cleveland:

Few people have done more in recent years to breathe life into America’s dead or dying public spaces. Best known for designing the High Line in New York, Corner has been called a landscape “rock star” and mentioned as a modern successor to Frederick Law Olmsted, the visionary behind Central Park. When Corner boasts that “almost every city” wants something like the High Line—as he sits in his Manhattan office, segments of the once-abandoned tracks he transformed visible through the window behind him—his client roster backs him up. Santa Monica, San Francisco, Seattle, Brooklyn, Memphis, and Chicago are just some of the places that have turned to his practice, James Corner Field Operations, to revive their urban parks.

Dagan & Dorfman on The Human Right to Private Property

Hanoch Dagan (Tel Aviv) & Avihay Dorfman (Tel Aviv) have posted The Human Right to Private Property on SSRN.  Here's the abstract:

For private property to be legitimately recognized as a universal human right, its meaning should pass the test of self-imposability by an end. In this Essay we argue, negatively, that the prevailing (libertarian) understanding of private property cannot plausibly face this demanding standard and, affirmatively, develop a liberal conception which has a much better prospect of facing property’s justificatory challenge. Private property, on our account, is an empowering device, which is crucial both to people’s personal autonomy (understood in terms of self-determination) and to their relational equality (understood in terms of reciprocal respect and recognition among persons). The liberal conception of the human right to property has both vertical and horizontal significance — it implies respect from both the public authority and other individuals — which means that it is thoroughly political but not necessarily statist.

Our account generates important implications, both domestic and transnational ones. Domestically it implies that whereas some property rights should be subject to strong constitutional protection, state law should facilitate other types of private and non-private property institutions, and these property institutions may well be subject to nonowners claims to access and, more broadly, to being treated respectfully. Furthermore, our conception of the human right to property requires that everyone must have the unusual authority typical to full-blown private ownership. Transnationally, our analysis highlights a freestanding dimension of relational justice, which is relevant across borders even given that our distributive obligations are statist. This injunction of relational justice in transnational interactions questions the adequacy of the current state of the law, according to which these interactions are mainly governed by choice of law rules that conceptualize them as wholly subsumed under the capacities of the parties as citizens of their respective polities.

Berger on Kelo v. New London

Bethany Berger (UConn) has posted Kelo v. New London: A Decade Later (Title News) on SSRN.  Here's the abstract:

The Supreme Court issued its decision in Kelo v. New London ten years ago this June. This short piece, invited in response to a conference at UConn Law this spring, presents the backstory and aftermath of the case. The article frames the case against the distinctive situation of post-industrial cities like New London, and looks at why the case so resonated with the public. It summarizes the legal impact of the case at the state level and its limitations, and the less visible political impact on governmental decision makers. Finally, the article looks at what happened to New London and the plaintiffs after the case was decided.

Anderson on Water Law in Indian Country

Robert Anderson (Washington) has posted Water Rights, Water Quality, and Regulatory Jurisdiction in Indian Country (Stanford Environmental Law Journal) on SSRN.  Here's the abstract:

In the seminal Indian water rights case, Winters v. United States (1908), the Court posed this question: “The Indians had command of the lands and the waters—command of all their beneficial use, whether kept for hunting, ‘and grazing roving herds of stock,’ or turned to agriculture and the arts of civilization. Did they give up all this?” The Court’s answer was no, and since then a large body of law has developed around Indian water rights, although the primary focus has been on the amount of water reserved for various tribal purposes. While Indian nations use property rights theories to protect their water resources from loss to non-Indian use, they also deploy their inherent governmental authority through tribal water codes and the federal Clean Water Act to protect water quality. As competition for water resources grows and development pressures adversely affect water quality, Indian Nations and their neighbors face new challenges in defining Indian water rights for instream habitat protection and traditional consumptive uses.

This article reviews the nature of Indian water rights — both on and off reservations — and the use of tribal sovereignty to protect those rights in terms of quantity and quality. The case law in this arena is sparse, and the ability to predict an all-or-nothing litigated outcome is correspondingly limited. Under these circumstances, parties would be best off to default to the usual presumptions recognizing inherent tribal authority over on-reservation water resources and state authority outside of Indian country. From this jurisdictional baseline, tribes, states and the United States should cooperate to ensure that a given regulatory regime protects water quality and access to water.

Kelly on How Land Banks and Land Trusts Promote Social Goods

Jim Kelly (Notre Dame) has posted Sustaining Neighborhoods of Choice: From Land Bank(ing) to Land Trust(ing) (Washburn Law Journal) on SSRN.  Here's the abstract:

This essay is based on my closing presentation at the Washburn Law Journal's 2015 symposium entitled "The Future of Housing -- Equity, Stability and Sustainability." It explores how land banks and land trusts promote social goods, including socioeconomic integration, by connecting with and shielding against, respectively, market forces. Both engage in stewardship of land. Land banks take temporary ownership of vacant, abandoned properties in order to make them available for productive use. Land trusts hold land indefinitely to ensure a social purpose is met. Community land trusts hold land for a purpose that is responsive to the human environment, often permanently affordable housing in areas where affordable housing is rare to nonexistent. Land banks encourage people with choices to move into neighborhoods beset by abandonment and poverty. Community land trusts allow lower-income residents to become long-term members of neighborhoods otherwise inaccessible to them. Land banks reduce transaction costs to get the market moving. Land trusts increase transaction costs in order to protect affordable housing and other public goods against elimination by market-driven transfers.

The use by these two publicly minded real estate market interventions of opposing tools in starkly different types of neighborhoods raises the following questions: First, do they meet somewhere in the middle? Second, does sustaining neighborhoods of choice hinge on the handoff of some critical mass of real property from land banks to land trusts? The answers to these both questions are negative, if we focus our attention solely on the work done directly by land banks and land trusts. The neighborhoods that warrant the housing stewardship activity of land trusts are just too different from those needing the help of land banks to talk of a continuum of care between the two poles of community land resource control. But, if land banking and its conceptual counterpart, “land trusting”, are thought of more broadly as the strategic adjustment of transaction costs for the promotion of social goods, such as residential socioeconomic integration, then an array of intermediate possibilities present themselves.

The essay begins with a brief examination of the importance of residential socioeconomic integration and how it might be advanced appropriately. After looking at some misconceptions about the market’s role in segregating neighborhoods by class, I then explore how land banks and land trusts intervene to move neighborhoods toward a healthy diversity. The essay concludes with a discussion of land banking and, particularly, land trusting as alternatives to formal stewardship that nevertheless also foster the needed diversity of housing types, land tenure types, and ultimately, resident socioeconomic status to sustain neighborhoods of choice.

City Living as a Quadriplegic

Peter Apps explains how breaking his neck changed his view of urban form:

If I've learned one thing in the nine years since I broke my neck, it's that the world is not particularly well designed for disabled people. Sometimes the things that stop you doing stuff and getting places (or, indeed, the things that enable you to do them) are very small. Sometimes they are massive.

What they all do, though, is completely redraw the map of the world you can reach.

Chang on the 'Law and Economics of Possession'

Yun-chien Chang (Academia Sinica) has posted Introduction to 'Law and Economics of Possession' (Book Chapter - Cambridge Press) on SSRN.  Here's the abstract:

Possession is a key concept in both the common and civil law, but it has hitherto received little scrutiny. Law and Economics of Possession uses insights from economics, psychology and history to analyse possession in law, compare and contrast possession with ownership, break down the elements of possession as a fact and as a right, challenge the adage that 'possession is 9/10 of the law', examine possession as notice, explain the heuristics of possession, debunk the behavioural studies which confuse possession with ownership, explore the LightSquared dispute from the perspective of 'possession' of spectrum frequency and provide new insights to old questions such as first possession, adverse possession and property jurisdiction. The authors include leading property scholars, who examine possession laws in, among others, the USA, UK, China, Taiwan, Japan, Germany, France, Israel, the Netherlands, Spain, Portugal, Italy, Austria.

Jessup on Environmental Justice

Brad Jessup (Melbourne) has posted Environmental Justice as Spatial and Scalar Justice: A Regional Waste Facility or a Local Rubbish Dump Out of Place? (McGill International Journal of Sustainable Development Law & Policy) on SSRN.  Here's the abstract:

This paper explains and explores how a controversial waste development in the rural town of Molong, Australia was approved under the maligned, and since repealed, Part 3A of the New South Wales (“NSW”) Environmental Planning and Assessment Act 1979. It adopts a legal geography approach to demonstrate how the activation of the planning law both dramatically shifted political and legal power from the community to the government and proponent, and altered the scale of environmental concern from the local to the regional. The law, and in particular, the imposed geographic scale, undermined the argumentative position, place creation and imagination of the community group opposing the development. It allowed centralized decision making to disregard the environmental effects of the project that were acknowledged by the NSW Land and Environment Court in the case Hub Action Group v. Minister for Planning. It illustrates the entrenched power imbalance in state-significant development laws. The inquiry uncovers spatial and scalar injustices, which are presented as being a component of the concept of environmental justice, with that concept reinterpreted in light of recent scholarship that rethinks the meaning of space. In this respect the paper extends the boundary of, and the community for, environmental justice.

Call For Papers: Journal of Affordable Housing & Community Development Law

ABA Journal of Affordable Housing & Community Development Law
 

Call for papers

 

The Journal of Affordable Housing & Community Development Law invites submissions for its next issue (Volume 24:2). We are seeking articles on racial justice as it relates to affordable housing or community and economic development. We encourage a broad range of submissions on this topic, which could range from discussion of the implications of siting low income housing tax credit developments in areas of high (or low) concentrated poverty to articles that consider the relationship between local government boundaries and community development initiatives. Submissions on topics other than racial justice are encouraged and will be considered for publication in future issues.

 
Interested authors should send a one- to two-paragraph abstract describing their proposals to the Journal’s new Editor–in-Chief, Laurie Hauber, at the email address below.

 
The Journal welcomes articles (typically 7,000-10,000 words (30–50 pages) as well as essays (usually 4,500–7,500 words (20–40 pages) from practitioners, academics, and students. Submissions of final articles and essays for Volume 24:2 issue should be made by September 1, 2015.  

 
Please do not hesitate to contact any of us with questions:

Laurie Hauber, Editor–in-Chief , [email protected]

Laura Schwarz, Co-Editor, [email protected]

Brandon Weiss, Co-Editor, [email protected]

 

Top SSRN Downloads

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

1.  [259 downloads]  Investors Effect on Household Real Estate Affordability
      Sebastien Gay (Chicago - Econ)

2.  [195 downloads]  Digital Assets and Fiduciaries
      Naomi Cahn (GW), Christina L. Kunz (William Mitchell), and Suzanne Brown Walsh (Independent)

 3.  [174 downloads]  When the Shale Gale Hit Ohio: The Failures of the Dormant Mineral Act, Its Heroic Interpretations, and Grave Choices Facing the Supreme Court
      Fenner L. Stewart (Calgary)

4.  [165 downloads]  Legal Institutionalism: Capitalism and the Constitutive Role of Law
      Simon Deakin (Cambridege), David Gindis (Herfordshire), Geoffrey M. Hodgson (Herfordshire), Huang Kainan (Shandong), and Katharina Pistor (Columbia)

5.  [115 downloads]  The Institutions of Roman Markets
      Benito Arruñada (Pompeu Fabra)

6.  [108 downloads]  Realm of the Coin: Bitcoin and Civil Procedure
      Max Raskin (NYU – Student)

7.  [91 downloads]  The Development of EU Property Law
      Eveline Ramaekers (Oxford)

 8.  [85 downloads]  Reforming REIT Taxation (Or Not)
      Bradley T. Borden (Brooklyn)

9.  [79 downloads]  Patent Licensing and Secondary Markets in the Nineteenth Century
      Adam Mossoff (George Mason)

10.  [79 downloads]  MERS Litigation -- Brief of Amicus Curiae the Legal Services Center of Harvard Law School and Law Professors in Support of the Appellee
       Max Weinstein (Harvard), Melanie B. Leslie (Cardozo), David J. Reiss (Brooklyn), Joseph William Singer (Harvard), and Rebecca Tushnet (Georgetown)

America's 11 Most Endangered Historic Places

The National Trust for Historic Preservation has put out its annual list of the country's most endangered historical sites.  The Trust describes this year's entries as the "most diverse list ever." Here are the places facing threats:

1. A.G. Gaston Motel, Birmingham
2. Carrollton Courthouse, New Orleans
3. The Factory, West Hollywood
4. Fort Worth Stockyards, Fort Worth
5. Little Havana, Miami
6. Old U.S. Mint, San Francisco
7. South Street Seaport, New York City
8. Oak Flat, Superior, Arizona
9. The Grand Canyon, Arizona
10. Chautauqua Amphitheater, Chautauqua, New York
11. East Point Historic Civic Block, East Point, Georgia

Fischel on the Coase Theorem, Land Use Entitlements, and Rational Government

William Fischel (Dartmouth - Econ) has posted The Coase Theorem, Land Use Entitlements, and Rational Government (Book Chapter) on SSRN.  Here's the abstract:

This essay constitutes chapter 6 of my forthcoming book, Zoning Rules! The Economics of Land Use Regulation, which the Lincoln Institute of Land Policy will publish in 2015. This chapter offers a formal structure with which to analyze land use controversies and an evaluation of its relevance. The first part introduces the Coase theorem and applies it to a famous dispute between feuding hotel owners in Miami Beach, Florida. A modification of elementary supply and demand curves, “the entitlements diagram,” is developed in this highly localized context and deployed to illustrate the Coasian approach. I then expand the analysis to include local public goods in a less famous but more practical example involving a rezoning by a successful developer in Lebanon, New Hampshire.

The expansion of the entitlements analysis to include local government decisions requires a model of governance that relies on someone called the “median voter,” who is usually in the majority of local elections. The median voter model is the workhorse of local public economics, but it is nonetheless controversial in the legal academy. Many believe that the preferences of the majority do not actually prevail and, when the majority does rule, it is unlikely to respond rationally to economic incentives. I review the econometric evidence that confirms that the median voter's preferences determine government policies and that those policies rationally advance the interests of the majority. The evidence is more controversial in the case of compensation for regulatory takings. It is explored using the experience from a voter initiative in Oregon in 2003, which called for compensation for land use regulation but resulted almost invariably in deregulation. Despite this special example, I conclude from other examples that local governments and the zoning laws they enact are generally no less economically rational than their purely private cousins, modern American business corporations.