PropertyProf Blog

Book Review: Property in Housing by Gustav Muller & Sue-Marie Viljoen (Guest Blog)

Today we're delighted to welcome friend of the blog Mark Roark (Southern) who recently wrote a book review about Gustav Muller and Sue-Marie Viljoen's new title, Property in Housing (Juta 2021):

Can a House Divided Stand? A Thought Experiment in Housing and Property Rights

Book Review of Gustav Muller and Sue-Marie Viljoen, Property in Housing (Juta 2021) 

Reviewer: Marc L. Roark

The proverb is Gospel: “A house divided against itself cannot stand.” Jesus, Abraham Lincoln, even George Costanza has uttered these words to reflect the reality that things so tightly intertwined cannot exist at odds with one another. 

And thus, the South African Constitution (along with many other Constitutions around the world) present us with a conundrum.  If housing is a subset of property does a right to housing strengthen the law of property or challenge is normative force? Gustav Muller (University of Pretoria) and Sue-Mari Viljoen (University of the Western Cape) take on this central question in their comprehensive treatment of South African housing law, Property in Housing (JUTA Press 2021).  To wit, Muller and Viljoen’s book focuses on a central problem that housing faces around the world in western democracies: how can a right to housing co-exist where rights in property preempt their force?  In legal systems where property remains the default position for allocating rights to place (including rights to housing), Muller and Viljoen explore what room remains for housing norms absent direct legislative intervention.  The short answer by Muller and Viljoen – some.

What makes this problem so important is that South African courts have attempted to square these two rights by locating a right to housing within the right to property. What has emerged is a complicated framework where rights to housing are treated on their “property-ness” or their “non-propertyness” for determining how courts allocate claims by potential housing occupiers.  In answering that question, Muller and Viljoen have delivered what I believe is the most thorough treatment of housing through the lens of property rights available today.  Aligning housing rights objectives within the South African Constitution, they analyze whether courts pin accessibility, habitability, service provision, habitability, affordability, geographic location, or cultural adequacy as constitutional claims that can stand up to the challenges of private property law or as co-rivalrous claims that require a sorting of interests.  In particular, the theme of fragmentation emerges as a dominant concept in the constitutional application of these attributes of a housing right.  In many cases, Muller and Viljoen’s analysis of the right to housing is that its existence can often be found in the liminal spaces between where property law and housing law do not quite meet up, forcing jurists to account for human rights in housing as they sort out property claims by home occupiers, owners, and neighbors. 

Within this context, the South African background of Dutch/ British Imperialism and its lingering effects through apartheid remain present as background context for the way property law continues to reaffirm past harms.  The visible remnant of these policies remain on the landscape of South Africa as the country remains a place where informal settlements become the de facto resort when affordable housing isn’t available for people of color, and where established property holders can assert claims to space behind privatized communities.  These glimpses of property law on the ground through eviction actions and a body of South African property law lays open the landscape of what human rights to housing in conflict with property law faces up to. Muller and Viljoen provide the legal context needed to understand how property law can continue to memorialize unjust regimes many years after its formal end.

In short, I highly recommend this treatment of Housing and Property rights for anyone interested in understanding the role of property rights and housing in context.  The book’s thought experiment successfully finds some room for housing in the property context, while pointing to inadequacies of property to deliver some of the basic features we expect a constitutional right in housing to carry out. 

NEW BOOK: Credit, Money, and Dematerialized Property

Andreas Rahmatian (Glasgow) recently published a book titled Credit and Creed: A Critical Legal Theory of Money (Rutledge Press), which considers the law of money through a property theory frame. Here's the summary:

Money is a legal institution with principal economic and sociological consequences. Money is a debt, because that is how it is conceptualised and comes into existence: as circulating credit – if viewed from the creditor’s perspective – or, from the debtor’s viewpoint, as debt. This book presents a legal theory of money, based on the concept of dematerialised property. It describes the money creation or money supply process for cash and for bank money, and looks at modern forms of money, such as cryptocurrencies. It also shows why mainstream economics presupposes, but avoids an analysis of, money by effectively eliminating money from the microeconomic market model and declaring it as merely a neutral medium of exchange and unit of account. The book explains that money rather brings about and influences substantially the exchange or transaction it is supposed to facilitate only as a neutral medium. As the most liquid of all assets, money enables financialisation, monetisation and commodification in the economy. The central role of the banks in the money creation process and in the economy, and their strengthened position after the bank rescue measures in the wake of the financial crisis 2008-9 are also discussed.

Providing a rigorous analysis of the most salient legal issues regarding money, this book will appeal to legal theorists, economists and anyone working in commercial or banking law.

NEW BOOK: Property Rights and Settlement in the Negev Region

Alexandre Kedar (University of Haifa), Ahmad Amara (Van Leer Jerusalem Institute), and Oren Yiftachel (Ben-Gurion University) have published Emptied Lands: A Legal Geography of Bedouin Rights in the Negev (Stanford University Press 2018). Here's a summary of the project

Emptied Lands investigates the protracted legal, planning, and territorial conflict between the settler Israeli state and indigenous Bedouin citizens over traditional lands in southern Israel/Palestine. The authors place this dispute in historical, legal, geographical, and international-comparative perspectives, providing the first legal geographic analysis of the “dead Negev doctrine” used by Israel to dispossess and forcefully displace Bedouin inhabitants in order to Judaize the region. The authors reveal that through manipulative use of Ottoman, British and Israeli laws, the state has constructed its own version of terra nullius. Yet, the indigenous property and settlement system still functions, creating an ongoing resistance to the Jewish state. Emptied Lands critically examines several key land claims, court rulings, planning policies and development strategies, offering alternative local, regional, and international routes for justice.

Click here for purchase information (receive a 20% discount when you use the code "EMPTIED").

 

 

 

New Book on New Ideas and the "State of Play" in Housing

This just in from Lee Ann Fennell (Chicago): Cambridge University Press has just published Evidence and Innovation in Housing Law and Policy (Lee Anne Fennell & Benjamin J. Keys, eds. 2017).  All chapters are downloadable in PDF as well as viewable in HTML through the Open Access version.

The impressive list of contributors include: William A. Fischel, David Schleicher, Richard A. Epstein, Ingrid Gould Ellen, Brian J. McCabe, Lior Jacob Strahilevitz, Georgette Chapman Phillips, Matthew Desmond, Stephanie M. Stern, Christopher Mayer, Ian Ayres, Gary Klein, Jeffrey West, Atif Mian, Amir Sufi, Patricia A. McCoy, Susan Wachter, Raphael W. Bostic, and Anthony W. Orlando. 

Happy reading!

Iglesias on Integration Policies in Housing (Book Chapter)

Tim Iglesias (San Francisco) recently posted a chapter titled Two Competing Concepts of Residential Integration on SSRN from the forthcoming book Social Equity in a Time of Change: A Critical 21st Century Social Movement (ed. Richard Greggory Johnson III). Here's the abstract:

 

This book chapter identifies two popular--but competing--concepts of residential integration, demonstrates their distinct practical consequences, and calls for a frank conversation among social equity activists regarding which concept do we want to pursue. One concept, dubbed the “traditional integration model,” concerns the nature or quality of a community. It focuses on the complexion of a community as a geographical unit and the social relationships among members of different income groups or racial groups within it. This concept asks: Who lives there and how do they relate to each other? The second concept, “the individual access to the opportunity structure model,” focuses on how the physical location of a household relates to the opportunity structure of a community (e.g. good schools, good jobs, decent shopping, healthy neighborhoods). The primary focus of this model is maximizing the access of new residents to opportunities so that they can improve their lives. It does not inquire into the relationships among the members of the households who live in a community, but rather on the economic and social success of the individuals and families.

 

Dagan's New Book - Property: Values and Institutions

Oxford University Press has just published Hanoch Dagan's new book Property: Values and Institutions.  Here is the publisher's description:

Property: Values and Institutions, by Hanoch Dagan, offers an original understanding of property, different from the dominant voices in the field, yet loyal to the practice of property. It rejects the misleading dominant binarism in which property is either one monistic form, structured around Blackstone's (in)famous formula of sole and despotic dominion, or a formless bundle of rights. Instead, it conceptualizes property as an umbrella for a set of institutions bearing a mutual family resemblance. It resists the prevailing tendency to discuss property through the prism of only one particular value, notably efficiency. Dagan argues that property can, and should, serve a pluralistic set of liberal values. These property values include not only autonomy and utility, which are emphasized by many contemporary scholars, but also labor, personhood, community, and distributive justice.

Dagan claims that property law, at least at its best, tailors different configurations of entitlements to different property institutions, with each such institution designed to match the specific balance between property values best suited to its characteristic social setting. Dagan develops this theoretical account and applies it to key doctrinal contexts. In particular, he analyzes the normative underpinnings of the doctrines regulating the interactions between landowners and governments (both eminent domain and regulatory takings doctrines) and those regulating the governance of property owned by multiple owners (such as co-ownership, marital property, and the law of common interest communities).

I always value Dagan's work, and look forward to reading the book.  For those of you who will be at the upcoming ALPS conference, there will be a session devoted to the book.

Ben Barros

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Orth's Reappraisals in the Law of Property

John Orth's charming and insightful Reappraisals in the Law of Property has just appeared in Robin Paul Malloy's "Law, Property, and Society" series. The book collects a series of Orth's essays, many of which have appeared in the Green Bag. Here's the description from Ashgate's website:

Some of the most basic doctrines of property law are very old, many dating to the medieval era. How can legal rules that were born so long ago remain viable today? In Reappraisals in the Law of Property, author John V. Orth considers various topics in order to discover the forces that have been made and are continuing to remake these areas of the law. Orth proposes three forces in particular that have shaped the development of property law over time: the inertial force of tradition, the reforming power of judicial and legislative activism, and the constant challenge of academic criticism. Together, these themes form the foundation of a critical and challenging work, one that re-evaluates property law and demonstrates both its enduring consistency and the unique and often drastic ways in which it has evolved in the modern era.

I am certain that property profs will enjoy reading Orth's commentary on areas of property, such as tenancy by the entirety, leases, and easements, as well as his speculation on the importance of "driving forces," like intention, competition, and fiction.  And I hope that you'll encourage your library to add this to their collection.

Al Brophy

Rose Cuison Villazor on Gross' What Blood Won't Tell

Rose Cuison Villazor has another new essay up on ssrn, "Reading between the (Blood) Lines," which appeared in the Southern California Law Review.  It responds to Ariela Gross' new book, What Blood Won't Tell.  Here is the abstract:

Legal scholars and historians have depicted the rule of hypodescent - that "one drop" of African blood categorized one as Black - as one of the powerful ways that law and society deployed to construct racial identities and deny equal citizenship. Ariela J. Gross’s new book, "What Blood Won’t Tell: A History of Race on Trial in America," boldly complicates the dominant narrative about hypodescent rules in legal scholarship. On the one hand, "What Blood Won’t Tell" argues that the legal and social construction of race was far more complex, flexible and subject to manipulation than the scholarship regarding the rules about blood distinctions has suggested. On the other hand, "What Blood Won’t Tell" highlights circumstances, both historically and in recent memory, of the ways in which blood distinctions played crucial roles in shaping the identity of people of color, including indigenous peoples. Importantly, "What Blood Won’t Tell" also examines how blood quantum rules relate to contemporary efforts to reassert indigenous peoples’ sovereignty and claims to lands.

This Review highlights the important contributions of "What Blood Won’t Tell" to our understanding of the racial experience of indigenous peoples and the contemporary methods used to remedy the present-day effects of indigenous peoples’ colonial experience. "What Blood Won’t Tell" advances a more robust account of the racialization of people of color through rules about blood differences in at least three ways. First, it places the colonial experience of indigenous peoples within the larger historical contexts of racial subordination and efforts to promote White domination and privilege. Second, it underscores the federal government’s ongoing responsibility to counteract the long-standing effects of its past misdeeds by addressing indigenous peoples’ unresolved claims to lands that have been stolen from them. Third, it allows us to take a careful look at the relationship between blood quantum rules and the right of indigenous peoples to exercise self-determination. Taken together, these three perspectives reveal the immense challenges inherent to remedying the long-term effects of the racialization and colonization of indigenous peoples. 

Post by Alfred Brophy

Hernando de Soto and Property in a Market Economy

I'm delighted to announce the publication of Hernando de Soto and Property in a Market Economy, a book that I edited for Ashgate.  Here's the back-cover blurb:

Hernando de Soto is one of the world's leading public intellectuals. His books The Mystery of Capital and The Other Path have had a tremendous impact on debates about international development. But his work also has been controversial, and some of his arguments have received sustained criticism.  One of de Soto's core ideas is that the institution of private property is necessary for the proper functioning of a market economy.  Yet even though many property scholars closely follow de Soto's work, his ideas have been neglected in property law scholarship.  And although his work has been widely discussed in the context of property in developing countries, it has not had the same impact on the property issues that arise in mature market economies like the United States. This new collection seeks to remedy this neglect, bringing together a diverse group of scholars to apply de Soto's work to a wide range of contemporary issues in property law and theory. The important contribution it makes to debates and controversies in property law, as well as in related economic fields, will appeal to scholars of both law and economics.

And the table of contents:

Introduction, D.Benjamin Barros

The costs of regulation or the consequences of poverty? Progressive lessons from de Soto, Eduardo M. Peñalver

Invasions, innovation, environment, Carol M. Rose

Culture and capitalism: a comment on de Soto, Gregory S. Alexander

Hernando de Soto and the histories of property law, Alfred L. Brophy

Anticipating de Soto: allotment of Indian Reservations and the dangers of land-titling, Ezra Rosser

Leaving the body of property law? Meltdowns, land rushes, and failed economic development, Rashmi Dyal-Chand

The bell jar and the bullhorn: Hernando de Soto and communication through title, Nestor M. Davidson

Red tape and gridlock, Larissa Katz

Mercantilism, American style, Nicole Stelle Garnett

Hernando de Soto, formal property systems, and the intangible asset paradox, Juliet M. Moringiello

The economics of welfare: of Hernando de Soto and Susette Kelo, Denis J. Brion

And some nice things that have been said about the book:

'In Hernando de Soto and Property in a Market Economy, leading property scholars masterfully illuminate, challenge, and build on de Soto’s work, connecting it to central questions of property theory and social policy. This perceptive and multi-faceted exploration of how ownership works (or fails to work) offers essential insights to anyone interested in property rights and institutions.'  Lee Anne Fennell, University of Chicago Law School, USA

'This collection is a rich exploration and critique of Hernando de Soto's contributions to our understanding of the relation between the institution of property and the market economy. It is an essential resource for all interested in the theoretical, social, economic and historical underpinnings of land titling, and more generally property law and institutions, as a tool in economic development.' Claire Priest, Yale Law School, USA

You can read the introduction here.

Thanks to all the contributors, and to Lee and Claire.

Make sure your library has a copy!

Ben Barros

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Ordering the City Book Club at Prawfs

This week, PrawfsBlawg is hosting a book club on Nicole Garnett's great new book Ordering the City.  I'll post links as the contributions go up:

Ben Barros, Complexity and the City

Tracey Meares, Ordering the City

Chris Serkin, Ordering the City

Lee Fennell, Ordering the City

Steve Clowney, Order and the Poor

Michelle Wilde Anderson, Ordering the City

Nicole Stelle Garnett, Ordering the City, Redux

Michelle Wilde Anderson, The Purposes of Planning (the Good Kind): Ordering the City Part II

Ben Barros

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Atticus Finch: Friend or Foe?

The year 2010 marks the fiftieth anniversary of the publication of To Kill a Mockingbird.  Of course, this novel has been very influential both inside and outside the legal profession, and it was again the subject of headlines a few months back.  Many readers will recall that, last August, Malcolm Gladwell published an article in the New Yorker critical of the central hero in the book -- lawyer Atticus Finch.  Given Finch's iconic status, several writers quickly rose to his defense (see here, for example).  Others suggested that Gladwell's criticism did not go far enough.

I am happy to report that my colleague at John Marshall, Lance McMillian, has entered the fray with his new article, Atticus Finch as Racial Accommodator:  Answering Malcolm Gladwell's Critique, which he recently posted on SSRN.  Here's the abstract:

Atticus Finch – the fictional hero of Harper Lee’s 'To Kill A Mockingbird' – is a legal icon. The legendary status of Finch is confirmed by his standing in the non-legal world of broader culture. In 2003, the renowned American Film Institute deemed Atticus the greatest movie hero of all-time. That a lawyer would be worthy of this honor is nothing short of remarkable and demonstrates that the stature of Atticus Finch has assumed mythic proportions in American culture. Atticus is not just a lawyer; he is justice in the flesh.

Enter best-selling author Malcolm Gladwell. Last year, Gladwell made waves in The New Yorker by arguing that, far from being a bright spot of racial enlightenment in a time of darkness, Atticus Finch instead made an immoral peace with the world of Jim Crow Alabama. While Gladwell is not the first to criticize the Atticus myth, he is the most culturally influential person to do so, which is an important development. The Atticus-As-Racial-Accommodator charge essentially posits that Atticus was all-too-comfortable with the racism (and racists) that surrounded him every day. Gladwell wonders: Where is the moral outrage? In response, I argue that Gladwell misdiagnoses Atticus because he neglects the important role that Finch’s Christian faith plays in who he is as a person. To understand Atticus, one must first understand Jesus and his teaching. Finch is a New Testament-style prophet whose worldview propels him to this truth: Love and understanding open doors; judgment and condemnation close them. Consequently, his quiet and gentlemanly interactions with the racists in his midst suggest neither passivity nor appeasement, as Gladwell contends. Instead, they are a form of character and strength – derived from Finch’s faith in Jesus – that imbue Atticus with moral authority in the eyes of the community. Moreover, while Gladwell rightly stresses the need of legal change in bringing equality to the South, the kind of moral change led by Finch was likewise necessary. Law is only half of the equation.

This year marks the 50th anniversary of To Kill A Mockingbird. Combined with the cultural significance of Gladwell’s recent revisionist foray, this milestone means that now is a particularly apt time to look at Atticus with fresh eyes and assess his character anew.

I think these discussions of Finch raise interesting and important questions about our role as lawyers, and the role models we choose.  And it's worth pointing out that there is a tenuous connection to property law here.  Finch's fictional law practice included property matters, and the most notable case in which he was engaged in the book (aside from the criminal trial of Tom Robinson) was helping Walter Cunningham overcome issues arising from an entailed estate.

Mike Kent

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Peñalver and Katyal's Property Outlaws

Yale University has just published Property Outlaws, by Eduardo M. Peñalver (Cornell) and Sonia K. Katyal (Fordham).  Here's the burb from the YUP website:

Property Outlaws puts forth the intriguingly counterintuitive proposition that, in the case of both tangible and intellectual property law, disobedience can often lead to an improvement in legal regulation. The authors argue that in property law there is a tension between the competing demands of stability and dynamism, but its tendency is to become static and fall out of step with the needs of society.

The authors employ wide-ranging examples of the behaviors of “property outlaws”—the trespasser, squatter, pirate, or file-sharer—to show how specific behaviors have induced legal innovation. They also delineate the similarities between the actions of property outlaws in the spheres of tangible and intellectual property. An important conclusion of the book is that a dynamic between the activities of “property outlaws” and legal innovation should be cultivated in order to maintain this avenue of legal reform.

Ben Barros

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Eduardo Moisés Peñalver is a professor at the Cornell Law School.

Sonia K. Katyal is a professor of law at Fordham Law School.

Lee Fennell's The Unbounded Home

Yale University Press has just released Lee Fennell's book The Unbounded Home.  Here's the publisher's description:

The Unbounded Home grapples with a core metropolitan reality -- that the value and meaning of a home extend beyond its property lines to schools, shops, parks, services, transportation, neighbors, neighborhood aesthetics, and even market conditions. Lee Anne Fennell unpacks the resulting tension between the homeowner’s desire for personal autonomy at home and the impulse to control what happens in surrounding areas to safeguard the home’s value.

 

The stakes are high; this conundrum carries implications for nearly every facet of residential life, including the many neighborhoods in the United States that are segregated by race and social class. Fennell shows how a new understanding of homeownership and  innovations that increase the flexibility of property law can address critical issues of neighborhood control and community composition that have been simmering unresolved for decades.

I've read the book, and it is fantastic.  It is a must-read for anyone interested in (among other things) land use and local government issues.

 

Ben Barros

 

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Does Patty Salkin Ever Sleep?

I recently received a press release announcing the publication of the new five-volume American Law of Zoning from West, edited by Patty Salkin.  Given the absurd number of other publications that Patty produces, not to mention her blog The Law of the Land, I wonder whether she has reached a higher stage of human evolution that does not require sleep.

Ben Barros

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Treanor on Epstein's Supreme Neglect

William Michael Treanor (Fordham) has posted Supreme Neglect on SSRN.  Here's the abstract:

In Supreme Neglect, Professor Richard Epstein has produced a clear and elegant synthesis for the general reader of his lifetime of thinking about the Takings Clause and, more broadly, about the role of property in our constitutional system. Appealing to both history and constitutional text, Epstein argues that the Takings Clause bars government regulations that diminish the value of private property (with the exception of a highly constrained category of police power regulations). This essay shows that neither the text of the clause nor original understanding support Epstein's broad doctrine of regulatory takings. Indeed, both text and the early history of the clause indicate that the clause did not apply to regulations at all; it applied only to physical seizures by the government- situations where the government physically take[s] property by, for example, building a road or a school on it.

Ben Barros

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Glaeser and Gyourko on Federal Housing Policy

Edward L. Glaeser (Harvard Economics) and Joseph Gyourko (Wharton) have a new book out from AEI called Rethinking Federal Housing Policy.  The book is available as a pdf from the AEI website through the previous link.  Here's the publisher's blurb:

Despite the recent drop in house prices, housing remains unaffordable for many ordinary Americans. Particularly along the coasts, housing remains extremely expensive. In Rethinking Federal Housing Policy: How to Make Housing Plentiful and Affordable, Edward L. Glaeser and Joseph Gyourko explain why housing is so expensive in some areas and outline a plan for making it more affordable.

Policymakers must recognize that conditions differ across housing markets, so housing policies need to reflect those differences. The poor and the middle class do not struggle with the same affordability issues, so housing policy needs to address each problem differently. The poor cannot afford housing simply because their incomes are low; the solution to that problem is direct income transfers to the poor, rather than interference with the housing market. 

In contrast, housing is unaffordable for the middle class because of local zoning restrictions on new home construction that limit the supply of suitable housing. The federal government can sensibly address this issue by providing incentives for local governments in these markets to allow more construction.

Ironically, current subsidies for construction of low-income housing only tie impoverished Americans to areas where they have limited job prospects. These supply subsidies also crowd out private-sector construction and benefit politically-connected developers. Mortgage interest deductions, which are intended to make housing more affordable for the middle class, simply allow families who can already afford a house to purchase a bigger one. In restricted, affluent markets, these deductions increase the amount families can pay for a house, driving up prices even higher.

Glaeser and Gyourko propose a comprehensive overhaul of federal housing policy that takes into account local regulations and economic conditions. Reform of the home mortgage interest deduction would provide incentives to local governments to allow the market to provide more housing, preventing unnecessary price inflation. Federal subsidies for the production of low-income housing should be eliminated and the funds reallocated to increase the scope of federal housing voucher programs which allow poor households to relocate to areas of greater economic promise.

A radical rethinking of policy is needed to allow housing markets to operate freely--and to make housing affordable and plentiful for the middle class and the poor.

Ben Barros

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Teaching With Popper's Bordering on Madness

Carolina Academic Press is issuing a second edition of Andrew F. Popper's novel Bordering on Madness:  An American Land Use Tale:

Bordering on Madness is a novel about a battle between a university and a community over proposed construction of a new campus facility. As the land use fight ripens, the homeowners and university become combatants. The opposition becomes the enemy, depersonalized and reprehensible.

From a teaching perspective, the novel allows for discussion of conventional and unconventional land use strategies as well as the development of a number of issues: When does one person have the right to control the lawful use of property owned by another? When does aggressive advocacy become unethical, unacceptable misconduct? What is the role of government when it comes to disputes between those opposed to development and those seeking approval of a proposed project? What are the best ways to handle the anger and frustration of individuals threatened by what they perceive as destructive change?

At the same time, CAP is publishing a companion casebook, co-authored by Popper and land-use experts Patty Salkin David Avitable:

Professor Andrew F. Popper’s new innovative casebook A Companion to Bordering on Madness: An American Land Use Tale delves into the legal, political, and strategic issues raised in his recent novel, Bordering on Madness, a tale about a university and a community who go to war over a building proposal.

Using the plot of the novel as a starting point, the Companion provides commentary as well as numerous edited cases and articles to discuss the conflict between those who seek to develop land and those who oppose that development.

“The notion of using fiction as a building block to teach a field is fairly common – but the idea of a casebook that addresses in depth the areas raised in a full-length novel is unique,” said Popper. “The novel touches on cutting-edge legal issues that could not be explored adequately. The Companion provides a wonderful opportunity to set out those issues and strategic challenges and explore the pertinent judicial decisions and scholarship in the field, something that cannot – and should not – be done with fiction.”

The story in the novel is a familiar one in higher education and many other fields. Battles between local residents and universities or other institutions are legendary and the novel and Companion build on one of those legends: the complex dispute some years ago between American University Washington College of Law and some of the surrounding residential communities over the construction of a new law school building.

“At any one time, throughout the United States, there are thousands of battles of this type,” Popper said. “Universities, hospitals, churches, commercial developers and even homeowners who want to put an addition onto their homes find quickly that owning land does not mean necessarily having the right to use land – even when those uses are perfectly consistent with the laws and regulations applicable to the subject property.”

Looks like a very innovative way of presenting these issues!

Ben Barros

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Wolf on Euclid

Propertyprofs will want to check out Michael Allan Wolf's new book The Zoning of America: Euclid v. Ambler, which is appearing next month in the University Press of Kansas' important series on Landmark Law Cases.  Here is the description from the Kansas website:

When the Cleveland suburb of Euclid first zoned its land in 1922, the Ambler Realty Company was left with a sizable tract it could no longer sell for industrial use—and so the company sued. What emerged was the seminal zoning case in American history, pitting reformers against private property advocates in the Supreme Court and raising the question of whether a municipality could deny property owners the right to use their land however they chose.

Reconstructing the case that made zoning a central element in urban planning for cities and towns throughout America, Michael Allan Wolf provides the first book-length study of the Supreme Court’s landmark Euclid v. Ambler decision. Wolf describes how the ordinance, and the defense of it, burst onto the national stage and became the focus of litigation before moving all the way to the nation’s highest court. He subsequently reveals how and why Justice George Sutherland broke from the Court’s conservative bloc to support the urban reform movement eager to protect residential neighborhoods from disturbances created by rapidly expanding commercial, industrial, or multifamily uses of land. Following that decision, America saw the rapid proliferation of zoning ordinances, which greatly increased the power of local government to control and rationalize urban planning.            

As Wolf attests, many of today’s environmental and land use laws might not have been deemed legal had Euclid v. Ambler been decided differently. But he also points out the potential dangers that emerged from the decision, such as its anticompetitive impact on the real estate market, its catalyzing effect on suburban sprawl, and its establishment of a legal basis for excluding minority groups from neighborhoods.

Wolf’s compelling account makes it clear that Euclid v. Ambler fundamentally altered how we think about the urban landscape, changed the way our cities and suburbs are organized, and left a long shadow over subsequent cases such as the controversial Supreme Court decision in Kelo v. New London (2005).

I'm looking forward to reading it.

Alfred Brophy

Michael Heller's The Gridlock Economy

This past weekend, I read Michael Heller's new book The Gridlock Economy:  How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives.  The "this past weekend" part of the previous sentence says a lot of good things about the book -- I have two young kids, and not a lot of free time on the weekends.  The Gridlock Economy is one of those rare books that makes important theoretical points while being an easy, enjoyable read.  Like Hernando de Soto's The Mystery of Capital, The Gridlock Economy is clearly written and illustrates its points with engaging examples.  You could assign the whole book for a week's reading in a class and not feel guilty about overwhelming your students.

The book's core points build on insights that Heller first developed in The Tragedy of the Anticommons: Property in the Transition from Marx to Markets.  The basic idea of the anticommons is that highly-divided ownership of property can lead to the underutilization of resources.  If too many people have control over a resource, decisionmaking gets gummed up, transaction costs multiply, and resources are underused.  Heller's iconic example of the anticommons is Moscow storefronts, where the right of many "owners" to veto various uses led to stores that remained vacant while kiosks thrived on the sidewalks just outside.  If the tragedy of the commons can be seen as being caused by an absence of property rights, the tragedy of the anticommons can be seen as being caused by an overabundance of property rights.  Heller argues that we should be seeking the sweetspot between too much and too little property:  "Well-functioning private property is a fragile balance poised between the extremes of overuse and underuse." (p. 19).

The Gridlock Economy explores this theme in a number of interesting settings, including biotech patents, broadcast spectrum, land use regulation, and land assembly.  My one quibble is that the book occasionally crams problems that don't seem to fit into the anticommons category.  One example is the fiasco of underutilized broadcast spectrum owned by television broadcasters. (p. 96)  If the broadcasters had stronger property rights in this spectrum, it probably would not be underutilized to such a degree.  This particular problem therefore seems to be more about too little property, rather than too much property.  Another example is the problem of highly-fractionated interests that results from multiple generations of a family passing property through intestacy.  After a few generations, a single plot of land can have scores of owners.  These multitude of owners can lead to real anticommons problems -- just imagine trying to get the consent of thirty cousins to do anything with a piece of property.  As a remedy for this sort of multiple-ownership problem, the law allows the property to be partitioned.  For property with many owners, partition is usually achieved through a judicial sale of the property, with the proceeds divided among the owners.  As Heller describes (p. 121)the partition process has a ton of flaws, and needs to be reformed.  But Heller's complaints about partition are about the flaws in a remedy for an anticommons problem, not the anticommons problem itself.

As noted, these are just quibbles.  This is a great book.

Ben Barros

Crossposted to PrawfsBlawg

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Freyfogle: On Private Property: Finding Common Ground on the Ownership of Land

The proofs of Eric Freyfogle's On Private Property: Finding Common Ground on the Ownership of Land, forthcoming in November from Beacon, has just appeared in my mailbox.  Beacon Press provides the following description:

Private property poses a great dilemma in American culture. We revere the institution and are quick to protect private-property rights, yet we are troubled when landowners cause harm to their neighbors and communities, especially when new development fuels sprawl and degrades the environment. Recent Supreme Court cases and new state laws around eminent domain have generated great controversy, and yet many people are unsure where they stand on this issue.

In this wide-ranging inquiry, law professor Eric Freyfogle explores the inner workings of the familiar but poorly understood institution of private property. He identifies the three threats it currently faces: government mismanagement, the recently reinvigorated property rights movement, and conservation groups' efforts to buy tracts of land in order to protect them. He then offers a solution in the middle ground between the extreme sides of these debates.

In On Private Property, Freyfogle gives glimpses of landownership's surprising past, revealing its complex links to liberty and ultimately showing why private property rights must remain consistent with a community's overall good. In conclusion, Freyfogle constructs piece by piece a provocative new vision of landownership, at once respectful of private interests yet responsive to communal needs.

It's a great combination of history--with chapters like "The Lost Right to Roam"--as well as contemporary areas of much contention--with chapters on "When We Should Pay" and a concluding chapter on "The Responsible Landowner: A Bill of Rights."

The search for common ground is a noble purpose.  I think you will enjoy the book and I think it's destined for lots of class adoptions.  And I hope to have a few more thoughts about this important book later.

Alfred L. Brophy