Tuesday, May 27, 2008

Deed Restrictions

I was in Houston earlier this weekend and through the steamy air (and between BBQ and Bluebell), I saw some signs that made my tired legal eyes pop.  Some Houston neighborhoods have signs with the name of the neighborhood in the median of the major thoroughfares when one enters the neighborhood.  The signs for several neighborhoods also announced "DEED RESTRICTIONS ENFORCED."  Could this mean what I fear it means?!!  What sort of restrictions are being enforced?  No blacks?  No Jews?  No Mexicans?  No Irish?  No Catholics?  Or is this just about maybe, uh, private building restrictions?

I assumed the worst until a Google search brought me to this Houston municipal webpage.  It seems that because Houston does not have any zoning, the city takes an interest in enforcing deed restrictions to effect zoning.  So maybe this is the city's way of announcing that it is doing backdoor zoning.  It's a very weird way of choose-your-own-adventure government, but maybe it fits with the Texas libertarian ethos. 

Still, even if the signs really do refer to zoning issues, I wonder if the signs might still be a problem because of the way anyone not familiar with Houston land use issues would perceive them.  If I were moving to Houston, I would immediately rule out living in any neighborhood with a "Deed Restrictions Enforced" sign because I would think that it was a "restricted" neighborhood where I was not welcome. 

Given the history of deed restrictions to effect racial segregation, Houston municipal signs seem very troubling to me.  The closest analogy I can think of is a Southern diner with two lines roped off, one of which is labeled "Whites Only," to designate it as a line for cholesterol conscious people who want egg whites, not yolks.  But there's no state action there (maybe a government run cafeteria?) 

Why announce public enforcement of private zoning restrictions in an oblique way on neighborhood signs, but only in some neighborhoods?  It'd be really easy for someone to get the wrong message--that is, if it really is the wrong message. 

Posted by Adam Levitin on May 27, 2008 at 11:38 PM in Constitutional thoughts, Property | Permalink | Comments (18) | TrackBack

Wednesday, March 19, 2008

Takings, a Second Time

In 1985, I published my book, Takings: Private Property and the Power of Eminent Domain (1985), which promptly received a number of scathing reviews by authors who are best left unnamed for the moment. But I was confident then, as I am confident now, that the approach that I took to the topic was basically correct. The conventional wisdom on that subject went into overdrive to confine the scope of the takings cause so that it did not overrun the rest of the constitution, or create a strong set of imperatives that the political branches would have to observe. My own contrary view was that the clause was as comprehensive and bold as its prose, and that no more than any other broad guarantee in the constitution (think of the First Amendment on speech and religion), it did not deserve to suffer a death by a thousand cuts by judges anxious to preserve broad discretion in the national and local governments to regulate economic affairs or the use and disposition of private property.

Now 23 years later I have returned to the same topic in a new book from Oxford University Press, called Supreme Neglect: How to Revive the Constitutional Protection for Private Property.  The purpose of this new volume is to do several things. The first of these is to rearticulate the positions that I set out in the earlier volume in a form that is both accessible to a general audience and rigorous enough for an academic audience. The second purpose was to update the book to take into account some topics that only came to prominence after the original takings book was published. I decided to leave out discussions of some of the procedural obstacles to raising takings claim in federal court, but I did include discussions on the issues surrounding the problem of temporary partial takings as in the First English case, and of unconstitutional conditions problem as it was raised in cases like Nollan and Dollan.

There is a sneaky character of great constitutional provisions. The shorter they are, and the more common their language, the more difficult the task of their interpretation. Private property, for example, is not just a two-word phrase, but it represents an entire world view, which necessarily needs to be distilled from sources external to the text. Takings, public use and just compensation are also terms that come easily off the tongue, but are hard to explicate in any coherent fashion. In the next few blog posts I shall work through some of the key arguments on these issues. But for the moment, I will just note that I am quite proud that my own views leave me outside the mainstream of both the political left and right.

The left of course is deeply suspicious of all forms of private property and urges various populist recipes for government intervention that turn out to be worse than the disease. The right often is so anxious to avoid charges of judicial activism that it turns somersaults to avoid giving broad constitutional texts their broad intellectual content. Both sides start with prior positions that have no grounding in either constitutional text nor the theory of limited government (that "necessary evil") which underlies the document. In future posts, I hope to show that the path I have charted does justice to both the text and the structure of our original, but now forgotten, constitutional order. It was no accident that I titled the book "Supreme Neglect," for it is the Court's tepid application of the takings clause that is the source of most of our present intellectual, and institutional, difficulties.

Posted by RAEpstein on March 19, 2008 at 11:36 AM in Property | Permalink | Comments (18) | TrackBack

Wednesday, July 04, 2007

Stepping Off the Cliff and Publicly Following Advice on Scholarship from the AALS New Law Professor Workshop

All of Friday at last week's AALS New Law Professor Workshop was devoted to teaching, and two speakers, Doug Berman (Ohio State), of blogging and criminal sentencing fame (he is quoted on the front page of the New York Times this morning regarding the Libby commutation), and Angela Davis (American), shared the two hours devoted on Saturday morning to scholarship.  As to Doug's talk, I'll simply note that the written outline, one and a half pages of well-spaced bullet points, repeats the word "write" fourteen times.  Indeed, this is a public apology to Angela, because she spoke on the mechanics of writing and placing articles, but by that time, Doug had gotten me so fired up I didn't want to listen anymore about writing, and went up to my room to write.

One of Doug's major theses was "the importance and value of quantity. . .aka. . .avoiding the false comforts of 'quality over quantity.'"   (Readers of my blog posts know that has never been my concern.  Indeed, I take it one step further and actively sacrifice quality for quantity.)  Point number one under that thesis was "realize 80% of genius is revealed in the first 20% of efforts."  On that note, I decided this morning that the introduction (12 pages) to a piece on which I have been reading, writing, and thinking for six months, and the conclusion of which, say 48 pages (or the remaining 80%) in the future, is still murky to me, is certainly not genius, but on the other hand, beyond laughable.  So without further ado, and in another exercise of shameless self-promotion, I posted on SSRN a piece entitled Aboutness, Thingness, and Morphosity:  A Pragmatic Ontology of Formal Systems in Law, the abstract of which follows:

Others have spoken of a sense that distinguishes areas of the law, for example, the law of property, in terms of “thingness.” I explore the implications of this sense for the phenomenon known as formalism, in which legal forms reflect a belief in a “deep reality.” I contend our tendency to formalism is more than linguistics; it reflects perceptions of forms intangible but nevertheless real, all of which raises an ontological question. I further explore the pragmatic consequences of this otherwise philosophical question, in areas of complex arrays of constitutive and regulative rules, like accounting standards, codes, business acquisition agreements, and corporate structures. Lawyers are not unique among human beings in perceiving intangible deep realities where others do not, but if we see things as real that our clients do not, perhaps we ought to address the implications. This is the introduction to a work-in-progress in which I will attempt to do so.

I have done this a whole bunch of times and it is still like stepping off a cliff.

Posted by Jeff Lipshaw on July 4, 2007 at 11:22 AM in Article Spotlight, Legal Theory, Lipshaw, Property | Permalink | Comments (7) | TrackBack

Monday, February 12, 2007

"The Political Economy of Eminent Domain"

My favorite law professor, Nicole Stelle Garnett -- a former Prawfs guest-blogger -- is now guesting over at the Volokh Conspiracy, where she is planning a series of five posts about her recent article, "The Neglected Political Economy of Eminent Domain."  The comments boxes are already hopping, so check it out.

Posted by Rick Garnett on February 12, 2007 at 04:46 PM in Property | Permalink | Comments (0) | TrackBack

Thursday, December 21, 2006

The Perfect Gift for the Prawf

It's that time of year -- parades, lights, candles, eggnog, latkes, and giving and getting things you never knew you needed. So, any nominations for the perfect gift for a law professor? What is it we need, appreciate, enjoy, crave, or were too ashamed to buy ourselves?

I have a couple of ideas. One is a Buddha water drawing board, to remind the prawf that our art is a work in progress. The water board helps us practice not getting too attached to anything we create. We draw something and set it free. Us prawfs are in it for the long haul and we want some of our thoughts to evolve, fade, and draw new ones on top of what we already put out.

Of course, if one looks around enough, they may run into a website such as the lawshop.com or forcounsel.com  or gifts-for-the-legal-profession dot com, http://www.e-corporategifts.com/legal_gifts.html. But does anybody really wear "the constitution tie" or "the legal dictionary tie"?

Constitution Tie 100% Silk                         Legal Dictionary Tie 100% Silk

Posted by Orly Lobel on December 21, 2006 at 01:12 AM in Property | Permalink | Comments (2) | TrackBack

Monday, December 18, 2006

Shrinkage

One of this year's big ideas, according to the New York Times Magazine, is "creative shrinkage," i.e., a strategy employed by struggling cities to "shrink[] [their] way into a new identity," rather than grow their way back to prosperity:

At its peak, Youngstown supported 170,000 residents. Now, with less than half that number living amid shuttered steel factories, the city and Youngstown State University are implementing a blueprint for a smaller town that retains the best features of the metropolis Youngstown used to be. Few communities of 80,000 boast a symphony orchestra, two respected art museums, a university, a generously laid-out downtown and an urban park larger than Central Park. “Other cities that were never the center of steel production don’t have these assets,” says Jay Williams, the city’s newly elected 35-year-old mayor, who advocated a downsized Youngstown when he ran for office.

Williams’s strategy calls for razing derelict buildings, eventually cutting off the sewage and electric services to fully abandoned tracts of the city and transforming vacant lots into pocket parks. The city and county are now turning abandoned lots over to neighboring landowners and excusing back taxes on the land, provided that they act as stewards of the open spaces. The city has also placed a moratorium on the (often haphazard) construction of new dwellings financed by low-income-housing tax credits and encouraged the rehabilitation of existing homes. Instead of trying to recapture its industrial past, Youngstown hopes to capitalize on its high vacancy rates and underused public spaces; it could become a culturally rich bedroom community serving Cleveland and Pittsburgh, both of which are 70 miles away.

Youngstown’s experiment has not gone unnoticed. Williams’s office has already fielded calls from officials in a few of the many American metropolitan areas that have experienced steep population drop-offs. When cities hit rock bottom, it seems, planners can find new solutions for urban decay — if they are willing to think small enough.

In the land-use and local-government areas, there's been a lot of work done on annexation and secession.  I wonder, if "creative shrinkage" catches on, can we expect a wave of efforts by cities to slough off unwilling, perhaps previously annexed neighborhoods?  (Of course, the Times piece is not so much about changing the political boundaries, only about limiting new construction and capturing open spaces.)  I don't know this field, but is there precedent for cities (let's assume we're talking about "home rule" cities) kicking out -- i.e., returning involuntarily to unincorporated status -- parts of themselves?

Posted by Rick Garnett on December 18, 2006 at 11:58 AM in Property | Permalink | Comments (1) | TrackBack

Wednesday, November 15, 2006

Georgetown's "Apostles"

Check out this Washington Post story, about nine hard-partying Georgetown students who live in a $2 million (!!) rowhouse in Georgetown and who are insisting that they are a religious community, and therefore entitled to an exemption from zoning laws about unrelated people living together.

The neighbors call it blasphemy and a possible precedent-setting threat to property values. It has impressed some of the young men's parents, including one who called it "ingenious" and another who said they were defending American property rights in the face of fuddy-duddy Georgetowners. And it has registered little reaction from the Catholic university, which says it doesn't consider the Apostles its business.

"It's between the owners of the property and the city," university spokesman Erik M. Smulson said.

So much for in loco parentis.  Seriously, though, the rest of the article raises interesting questions about the creation and application of religious accommodations.

Posted by Rick Garnett on November 15, 2006 at 02:32 PM in Property | Permalink | Comments (0) | TrackBack

Saturday, November 11, 2006

"Urban Renewal's Final Implosion"

Here is an article about New Haven's "Veterans Memorial Coliseum, which for the past three decades has occupied -- some say blighted -- a downtown block of this oft-maligned city, [and which] is expected to be demolished next month."

The coliseum's destruction will be a depressing coda for Urban Renewal, the controversial nationwide movement that reshaped dozens of American cities from the late 1940s through the 1970s, claiming large swaths of rundown neighborhoods for huge government public works projects. Its foremost laboratory was New Haven, where officials spent $745 per resident on urban renewal projects from the 1940s through the late '60s, more than twice as much as the next most ambitious city (Newark, $277). The coliseum was the showpiece.

Urban renewal spread quickly after a 1949 housing act authorized and partly funded the taking of private land by eminent domain. Flush with federal money, states and cities rushed to adopt the model perfected by Robert Moses, a mid-20th-century power broker responsible for most of New York City's modern infrastructure of bridges and tunnels, parkways and highways. His imitators around the country seized entire neighborhoods, bulldozed them flat, and constructed new roads and grandiose civic buildings.

I'm sure my thinking on these matters is shaped (or distorted) by my reading of, and admiration for, Jane Jacobs.  But, much of the "urban renewal" discussed in the piece, and for which Moses and his ilk were responsible, seems -- hindsight being 20-20, perhaps -- disastrously misguided.  What are the lessons for today's urban planners, particularly the "urbanists" and neo-traditionalists?

Posted by Rick Garnett on November 11, 2006 at 10:41 AM in Property | Permalink | Comments (0) | TrackBack

Thursday, October 19, 2006

Sticking Elbows In a Picasso

Joseph Sax wrote an interesting book in the not-too-distant past about property rights and protecting cultural works (Playing Darts With a Rembrandt).  I'm not sure quite how this story fits in, but it has to say something.  Steve Wynn, who loves collecting art and displaying it in his casinos, tore a coin-sized hole in a Picasso painting (The Dream) worth $139 million.  The reason: Wynn is a klutz.  He was showing off the painting and gesticulating with his hands right next to it, notwithstanding an eye problem that impairs his peripheral vision.  Elbow in painting, bye-bye tens of millions of dollars.  Wynn says he'll repair the painting.

Posted by Avi Bell on October 19, 2006 at 01:25 PM in Property | Permalink | Comments (14) | TrackBack

Friday, October 13, 2006

Foie gras follies

Earlier this year, foodies in my town died a little when Chicago passed a local ordinance banning the sale of foie gras. The law followed a 2004 equivalent imposing similar restrictions on the production and distribution of fatty goose liver throughout California. Recently, a New Jersey assemblyman proposed a similar ordinance for the Garden State, which would have perhaps the most impact of the three because New Jersey is where D’Artagnan Farms is located. D’Artagnan is an artisanal enterprise famed for introducing high-end foie gras and other game products, and its demise could cripple access to high-quality, fresh foie gras in the U.S.

What might explain this recent uptick in concern about an obscure luxury good? The easy explanation is that raising foie gras requires barbaric treatment of animals and that government is finally responding to this concern. “Our laws are a reflection of our society's values, and our culture does not condone the torture of small innocent animals,” explained one Chicago alderman who supported the bill.

I contest this explanation and offer an alternative one after the break.

The alderman’s asserted explanation doesn’t work because society regularly does condone the torture of innocent animals—big or small—for the production of food and other products. The gory details are spelled out in countless books, with the definitive classic remaining Peter Singer’s Animal Liberation.

One might try to distinguish foie gras by reference to the distinctive practice of gavage: force-feeding the birds through a tube in order to fatten their livers. This practice is undeniably gory, but it’s no more so than a lot of other cruel practices to which animals are subjected on factory farms. Chickens, for example, typically have their beaks severed so they don’t peck each other to death out of stress induced by the filthy, overcrowded conditions in which they’re raised.

Moreover, opponents of the foie gras bans have pointed out that geese have insensitive necks and lack a gag reflex, so they don’t suffer as much as a human might assume during gavage. Plus, chefs have pointed out that to get really good product, you have to bypass factory farms altogether, because only carefully and humanely raising geese in a free-range setting can produce foie gras worth eating. The irony thus might be that despite the arresting visual images of geese being force-fed via tubes , those birds might actually be better off than many of their counterparts on family farms.

In light of all this, something else has to be going on, but what? I think there are a confluence of two factors at play. The first is the choice of animal-rights activists to focus on a single, narrow issue. A few years back, foie gras emerged as a particularly volatile issue, punctuated by the campaign of intimidation by the hard-core wing of the animal liberation movement against a San Francisco chef, Laurent Manrique, who had planned to open a foie gras specialty store and restaurant. The Manrique incident created previously absent visibility for the anti-foie gras movement, and even caused some high-profile chefs to stop serving the food.

But I don’t think this visibility would have translated into legislative action unless foie gras had been a high-end luxury good. A legislator can ban foie gras and strike a populist stance while alienating only a small cadre of foodies far too small to make an electoral difference. But let that same legislator come out against cruelty in raising chicken or beef generally, and now you’re talking about something that affects a huge swath of society. I have a hard time imagining that legislator invoking that same language about society not condoning animal torture in the latter case.

So while one could read the recent spate of foie gras bans as a beachhead that may lead to wider restrictions on cruel animal practices, I think it's really more a product of political and circumstantial happenstance. Indeed, in Chicago the ban has met with more ridicule than outrage, and there's already talk of repealing it. All this said, my impression has always been that all factory farming (foie gras-related and otherwise) is cruel and deeply problematic. I’m pretty moderate on animal rights, and have no necessary objection to humanely raising and killing livestock for the good of people. But while I think the general purpose behind the foie gras bans—limiting animal torture—is commendable, the whole phenomenon strikes me as strange because these laws are so over- and under-inclusive.

Posted by Dave_Fagundes on October 13, 2006 at 06:05 PM in Current Affairs, Property | Permalink | Comments (9) | TrackBack

Monday, September 18, 2006

GOPtopia and "exclusionary vibes"

A few weeks ago, Michael Crowley had a piece in the New Republic called "GOPtopia:  Welcome to McLean, home of America's ruling class."  Here's a bit:

McLean covers just 18 square miles and has a population of 40,000. But it is packed with the people who impeached Bill Clinton, elected George W. Bush, launched the Iraq war, and have now learned to make millions from their association with government. Some are famous--people like Bill Kristol and Colin Powell, Scooter Libby and Newt Gingrich, several current and former Republican senators, and Supreme Court Justices Clarence Thomas and Antonin Scalia. Dick Cheney once owned a McLean townhouse--until he sold it to Bush's 2000 campaign manager, Joe Allbaugh. Less well-known are the countless lobbyists, lawyers, and businessmen whose names rarely turn up in The Washington Post and who like it that way--people like super-lobbyist Ken Duberstein, Ronald Reagan's former chief of staff; Frank Carlucci, former chair of the Carlyle Group, the notorious global private equity firm with close ties to the Bush family; and Dwight Schar, a construction mogul who is currently finance chairman of the Republican National Committee.

These people live in a leafy suburb among landmarks that neatly represent the modern GOP era: McLean Bible Church, a holy destination for GOP senators and Bush aides; the storied Saudi Arabian ambassador's personal compound; and the forbidden palace of CIA headquarters. ("Never accidentally turn in," Edwina cautions. Legend has it that many an illegal-immigrant housekeeper who did has never been seen again.) When Bush rushed to open a presidential transition office during the 2000 Florida recount, Cheney had his daughter scout out locations in McLean, and it was from there that the Bush team would lay its symbolic claim to the White House.

I wasn't wild about the piece.  It seemed a bit sneering to me ("fake class," "McMansions," "conservative strivers," etc.).  But, it did remind me of a fascinating paper by Lior Strahilevitz, "Information Asymmetries and the Right to Exclude," in which he discusses, among other things, "exclusionary vibes," which are "communicative signals that make undesirable third parties feel unwelcome."  (This post at the U. of Chicago faculty blog has more.)

Crowley writes, in his "GOPtopia" piece, about the meanies who defaced and destroyed the "Warner for Governor" signs of McLean's lonely Democrat, Terry McAuliffe.  (He should try sporting a Bush sign in a college town!).  The "vibes" that Lior has in mind are, of course, a bit more subtle.  Still, I wonder -- can a neighborhood's overt politics be exclusionary in the ways that Lior worries about?

Posted by Rick Garnett on September 18, 2006 at 01:59 PM in Property | Permalink | Comments (5) | TrackBack

Tuesday, July 11, 2006

Judge Joyce Lamberth

For assorted reasons I am currently re-reading (in a quasi-random piecemeal method) Ayn Rand's infamous Atlas Shrugged. Somehow, her hero of Judge Narragansett always reminds me of the recalcitrant Judge Royce Lamberth of the District Court for the District of Columbia.
About a year ago, I began following the saga of a lawsuit before Lamberth against the Department of the Interior, alleging an endless series of bureaucratic failures and racist judgments. Now, (via Howard Bashman) I see that Judge Lamberth has finally been removed from the Indian trust litigation. So far as I can tell, the Court of Appeals has taken no issue with his scoldings of the Department of the Interior for their incompetence and recalcitrance, but a combination of his accusations of racism against the federal government and his basically uniform record of being reversed merited the exceptional measure of taking him off of the case.
What is the moral of the story? On the one hand, sharp rhetoric and exceptional behavior obviously have their costs, at least for those members of the government who have bosses. On the other hand, maybe John Roberts is right that one calls them as one sees them.

Posted by Will Baude on July 11, 2006 at 08:51 PM in Property | Permalink | Comments (0) | TrackBack

Friday, July 07, 2006

The weakness of the case against Measure 37

States and their political subdivisions frequently pass land use regulations. Sometimes these regulations reduce the value of the land that they regulate, by small amounts or large. Since the Supreme Court has shown little interest in enforcing the due process clause or the just compensation clause (let alone the public use clause) against these regulations, some have taken recourse to the political process, producing (to the dismay of technocratic academics everywhere) Oregon's Measure 37, which requires full compensation for land use regulations that reduce the value of land(as an alternative remedy, the government can give up on the regulation, without being required to pay First English interim damages).

Eduardo Penalver thinks these laws are bad because they 1, reflect a "wrongheaded and antisocial" premise that we should not have to bear trivial burdens to our property, 2, compensate people for unexpected costs without taxing them for unexpected benefits, 3, are produced by interest groups, and 4, have exceptions (for, e.g., anti-vice regulations) in order to make them politically feasible.
Ben Barros provides a partial defense of such laws here. (He thinks that it would be better to have a law that provided compensation only for "severe" losses in value, but also thinks that the statutes are more populist then Penalver admits.) Geoff Manne has a much more muscular defense here. I will add that the best serious investigation of the enactment of Measure 37 appears to be fellow YLSer Sara Galvan's note, Gone Too Far: Measure 37 and the Perils of Over-regulating Land Use.
Now, I tend to think we should simply ignore Penalver's objection 3 on the grounds that it is unhelpfully ad hominem. The fact that a measure is promoted by an interest group is probably orthagonal to its merits. The interest groups in question tend to support positions that I support, and positions that Penalver opposes. So maybe it would be more helpful to examine the merits of the initiatives instead.
I am also not sure that it is fair to attack the measures as a whole on the grounds that they are "downright hypocritical" for including exceptions in order to make them politically palatable. Would I rather have full compensation for anti-vice zoning law? Absolutely, and I suspect that a number of the interest groups that supported Measure 37 would too. But for better or worse, voters do not agree. So the question is whether 8/9 of a loaf is better than none at all. Because I think there are plenty of legal injustices suffered by porn peddlers far more severe than not-receiving compensation for certain types of devaluaing land-use regulation, and because I think the underlying project is valuable, I think that it is. Suggesting that we should have no compensation law at all if we cannot have a compensation law that covers smut shops seems to me about as plausible as suggesting that we should have no federal Civil Rights Act if we cannot have one that covers those who employ fewer than 15 people.
That leaves Penalver's two real substantive critiques, namely that it is antisocial to demand that your property be free from all regulation, and that it is unfair to pay the land-use losers if the government doesn't also extract money from the land-use winners. I disagree with both of these judgments. The intuition that the government ought to compensate those who suffer from well-intentioned land-use regulations is just a special case of the general intuition that tortfeasors ought to compensate their victims, that those wrongfully imprisoned are entitled to restitution, and that the government sometimes ought to provide interim assistance to those injured by a surprise change in policy. Given the powerful influence of special interests and politically-connected developers in the land use process (an influence that makes the referendum process look positively clean by comparison), there is particularly strong reason to believe that those who are not politically connected or in-the-know may suffer unexpectedly while others make money off of regulatory games. Supporters of Measure 37 do not suggest that there is a right to have one's land be free from all regulation. Of course not. Property rights are themselves a form of regulation. The suggestion is that there is a right to have a little bit of money when one has suffered a particular kind of harm.
Nothing about that suggestion entails a threat to the general system of redistribution-- property owners, like others, pay taxes, and everybody is fully aware that Measure 37 does not allow the government to produce dollars out of thin air. So the law does not really force the government to pay to regulate (as opponents of Measure 37 used to say). The people are the ones who pay for a regulation either way-- Measure 37 simply says that rather than concentrating that cost on the people whose land is regulated, the cost is to be spread out through the taxation system in some other way.
Nothing precludes the state, by the way, from setting up special taxing districts to recoup all of the surplus value it creates via land-use regulation. That would make the regulation symmetric and meet Penalver's objection 2. Of course, there is something of a tradition in our legal system of expecting institutions to compensate for damage that they cause without necessarily entitling them to reclaim any surplus they create. That is why consumers can sue a paper factory for polluting their land, but the owner of a Frank Lloyd Wright home cannot sue his neighbors on the ground that his house drives up their property values. Measure 37 applies the same asymmetric but highly traditional rule to the government. I wonder if Penalver objects to the Anglo-American tort system too.

Posted by Will Baude on July 7, 2006 at 05:33 PM in Property | Permalink | Comments (7) | TrackBack

Tuesday, July 04, 2006

"Planet of Slums"

Although I'm not a regular Mother Jones reader, I found my way today to this review of "Planet of Slums," a new book by Mike Davis.  As a Property Prawf wanna-be, I've blogged often over the past few years about urbanism ("new" and old), cities, suburbs, Jane Jacobs, and Philip Bess, and so I was intrigued by Davis's discussion (as related by the reviewer, Joshua Jelly-Schapiro) of "urbanization without growth," a phenomenon which "has baffled development economists for years—especially those working in sub-Saharan African, where mega-cities like Lagos, Kinshasa, and Dar Es Salaam go on attracting tens of thousands of new arrivals each year even as their formal economies stagnate or even contract."

Now, according to the review, the primary culprit in Davis's book is the IMF and its neo-liberal economic policies.  Maybe so.  Is there a way out, or forward - - or back, even?  This bit from the review caught my eye:

Without formal work, and without the entry into secular politics that such work has traditionally provided, how do the poorest of the urban poor organize their social and political life? What offers them a “communal structure”? To this critical question, Davis offers a one-word answer: religion. “If God died in the cities of the industrial revolution,” Davis writes, “he has risen again in the postindustrial cities of the developing world.”

Today, religious organizations—Islamist, Hindu, Evangelical—are the single most important source of social cohesion among citydwellers in the developing world. Beyond spiritual sustenance and community, religious organizations offer social services no longer provided by the state, laws for virtuous conduct in chaotic environs, and membership in a global polity that transcends the corrupt nation-state that has excluded them. Political Islam continues to spread in power and influence from Cairo to Jakarta; the ascendance of its political parties—and their grassroots appeal—has received nervous attention from the Western media. Hindu fundamentalism, if remarked upon less often, has had an analogous trajectory in the bustees of Delhi and Mumbai. Pentecostal sects attract new adherents at astonishing rates from Brasilia to Johannesburg, altering political and community life in ways as yet not understood.

Here's a question:  Are today's "mega-cities" really "cities," in the way that "new urbanists" think of cities.  Are they, for instance -- in Joel Kotkin's words -- "sacred, safe, and busy"?  Could they be ?

Posted by Rick Garnett on July 4, 2006 at 02:07 PM in Property | Permalink | Comments (1) | TrackBack

Saturday, June 24, 2006

Kelo and the Executive Power

Yesterday -- clearly in response to the outrage over Kelo -- Pres. Bush issued an executive order directing federal agencies to restrain the use of the takings power to "situations in which the taking is for public use, with just compensation, and for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken."  It is not clear that this order will have any practical effect.  After all, the taking in Kelo was purportedly "for the purpose of benefiting the general public."  And, I suspect that the federal government does not directly engage in many economic development takings -- although federal dollars pay for many such takings. 

The order suggests, however, that post-Kelo outrage has more staying power that many observers anticipated.  It seems that Americans are more upset by compensated takings for "private" purposes than by "partial" regulatory takings.  (Excuse the shorthand terms.)  For years, property-rights advocates attempted, with little success, to stir up support for partial-takings legislation.  (An exception is Oregon, where voters have twice amended the state constitution to require compensation for regulations reducing property values.  I am not so surprised by this, in light of the stark contrast between land use winners and losers -- or between "givings" and "takings" -- that result from the urban growth boundaries there.)  Then, along comes Kelo and there is a giant rush to reform eminent domain law.  I know that there is much speculation about why people get so upset about eminent domain.  I suppose the answer is complicated one -- the endowment effect, class jealousies, middle-class anxieties, political grandstanding, and the Institute for Justice's remarkable p.r. machine.  But, I don't think anything captures the phenomenon better than Carol Rose's observation some years ago:  "There is something about land that makes you think that when you own it, it is really really yours." 


Posted by ngarnett on June 24, 2006 at 10:56 AM in Property | Permalink | Comments (2) | TrackBack

Cities and Suburbs

Prawfs-guest Professor Nicole Garnett -- who is, of course, excellent in every respect -- has posted a new paper, "Save the Cities, Stop the Suburbs," that should be interesting to those following the "urbanism" (new and old) debate.  Here is the abstract:

This Essay reviews two recent books: Robert Bruegmann, Sprawl: A Compact History and Joel Kotkin, The City: A Global History. Bruegmann, an architectural historian, makes an important contribution to the thinking about suburban sprawl by placing current development patterns in historical context. Bruegmann builds a strong case that the costs of limits on suburban development - especially the reduction in the supply of affordable housing - might well outweigh their benefits. His failure to consider whether measures other than suburban growth restrictions might enliven cities, however, is a serious shortcoming. The Essay suggests that urban officials must find ways to make cities, in Kotkin's words, “sacred, safe, and busy,” places again. The Essay urges local governments to examine how city land use policies (as opposed to suburban ones) affect urban life and suggests that city officials must address inevitable tensions between safety and busyness and between busyness and beauty.

Posted by Rick Garnett on June 24, 2006 at 12:07 AM in Property | Permalink | Comments (0) | TrackBack

Tuesday, June 06, 2006

Is All Conservation Good Conservation?

Yesterday's Washington Post ran a story about a successful IRS effort to deny a tax deduction for the donation of a conservation easement in Fairfax County, Virginia.  The easement was a promise not to "overdevelop" land near Mt. Vernon; but the land was subsequently developed into 29 houses.  (This apparently did not violate the easement.)  The Tax Court ruled that the $350K deduction was not available because the easement "did not protect open space or a historically important land area."  I don't know much about tax, so I'll pass on the merits of that decision.  (The property owners sound like they were playing pretty fast and loose with the definition of "conservation," though.)

The case touches upon an interesting question about the optimal level of land conservation.  Right now, the federal tax code, reflecting conventional wisdom, assumes that all conservation is good -- and therefore encourages owners to donate conservation easements.  But Julia Mahoney and Nancy McLaughlin have both questioned this wisdom:  Conservation easements are property interest designed to last forever.  Development needs and conservation priorities change over time.  For example, my colleague John Nagle tells me that Colton California -- home of the Dehli Sands Flower Loving Fly of Commerce Clause fame -- is considering prohibiting owners from restricting their property with conservation easements.  Colton thinks it needs development, not conservation.  Before reading Mahoney and McLaughlin, I bought the conventional wisdom about conservation easement:  What could be wrong with private property owners voluntarily restricting their property?  Is there a reason to question this wisdom?

Posted by ngarnett on June 6, 2006 at 01:29 PM in Property | Permalink | Comments (0) | TrackBack

Monday, June 05, 2006

Universities and Redevelopment

First, thanks for inviting me back.  My last PrawfsBlawg visit was interrupted by a stay in the pediatrics ward with my one-year-old.  (Dehydration -- I am bad at Pedialyte.)  I appreciate the second chance!

Now for substance:  Ilya Somin (Volokh Conspiracy) and Ben Barros (PropertyProf Blog) have posts about Columbia’s efforts to redevelop NYC’s Manhattanville neighborhood.  Ilya raises interesting questions about the project's public-use implications.  I share his skepticism about letting private institutions exercise eminent domain to reshape neighborhoods to better suit their needs.  But the dispute also raises questions of the age-old “town-gown” variety, which highlight a deep divide between the preferences and priorities of elite and non-elites in the U.S.

Many universities have – or would like to – redevelop surrounding areas.  Notre Dame, where I teach, is working closely with residents of the neighborhood immediately to the south on a redevelopment project.  ND would like to develop the area as a mixed-use “college town,” with houses, townhouses and small businesses.  The non-university-affiliated neighbors (who are mostly working class and African-American) are deeply skeptical.  They worry about gentrification, and, more importantly, an influx of students into the neighborhood.  I live in the neighborhood, and I think the plans have much to recommend them.  South Bend is a struggling Rust-Belt town without a college town area; all new development is occurring in surrounding suburbs, etc.  But, for some reason, many of our neighbors cannot be convinced that we need both economic vitality and better housing.    (They want the latter, not the former – despite hours of new-urbanist visioning sessions.)

These disputes highlight the different aesthetics, and, more importantly, different priorities among elites and “regular people.”  I would like to see ND remake my neighborhood into a new-urbanist enclave.  (The university is the largest landowner in the area, so it can probably do this without asking the neighbors’ permission.)  But, a previous generation of planners thought they knew what was best for working class neighborhoods too – and gave us high-rise public housing and urban renewal.  Now, we tell ourselves that we’ve absorbed the lessons of the past.  Are the objections of the townies irrational – or are they a commonsense warning to proceed with caution, not hubris?

Posted by ngarnett on June 5, 2006 at 03:05 PM in Property | Permalink | Comments (2) | TrackBack

Saturday, February 18, 2006

The legal status of nonhuman animals

Last week, I wrote about the colloquy in the Chronicle of Higher Education featuring Martha Nussbaum’s recent book, Frontiers of Justice, which applies a capabilities approach to thinking about justice for marginalized groups, including nonhuman animals.

Assuming that one agrees that mistreatment nonhuman animals deserves at least some consideration, this issue raises a host of questions about how the law should respond.  One major debate regards animals’ legal status.  Some commentators, such as Cass Sunstein, suggest that animals’ treatment as legal property doesn’t preclude the improvement of animal welfare through, for example, anticruelty statutes.  Others, such as Gary Francione, argue that animals’ property status represents a hurdle to their being treated decently.  (Each of these authors’ claims are advanced in Animal Rights:  Current Debates and New Directions, Nussbaum and Sunstein, eds. (2004)).

The animals-as-property issue raises a descriptive question that the current debate hasn't done much to address:  If animals aren't property, what are they?

Answering this question is limited by the paucity of possible categories:  American law typically regards objects as either persons or property.  There is a little variation; some nonhuman entities—most notably corporations—enjoy the limited privileges of artificial personhood.  But for the most part, our legal system (in contrast to much older ones, such as Roman law) lacks a vocabulary of status that would enable us to think about animals as something intermediate between persons and property.

A few localities, however, have tried to buck this trend.  Twelve North American cities (as well as one state and one county) have redefined those who keep animals as “guardians” rather than “owners,” and animals themselves as “companions” rather than “property.”  What’s peculiar about these ordinances is that their inspiration is solely terminological.  The change in nomenclature doesn’t extend to animals any more rights or impose on guardians any more obligations than existed under previous law.  The point of this movement—and there is, apparently a movement afoot—appears to be about changing perceptions of animals rather than imposing any kinds of legal rules requiring certain treatment.  The hope is that the mere change in animals’ formal legal status away from “property” and toward “companions” will enhance their social status and, in turn, improve their treatment at the hands of humans.

What interests me about these laws, though, is that they focus entirely on the expressive dimension of law, and in particular on the expressive dimension of legal status.  Whether these changes have any tangible effect on animals’ wellbeing is an empirical question without an answer as yet (though it would be interesting to study this, for example by comparing animal cruelty complaints in the fourteen guardian/companion jurisdictions before and after the change in nomenclature). 

Is the notion that changes in formal legal status can change social status plausible?  Perhaps.  Recent work on cultural cognition and risk perception suggests that people’s predictions of the risks associated with certain events are affected strongly by how much “status anxiety” the law generates in them.  For example, one study suggests that white males with an individualistic, hierarchal worldview tend to be more skeptical of the risks associated with gun ownership and environmental degradation than the rest of the population. 

While these studies focused on the notion of status anxiety as it affects risk perception, I think it also does some work to explain why some groups resist laws that appear to have no tangible effect on their well-being.  These studies show that people view, to some extent, changes in law through the prism of status, and that they tend to resist laws that express a status change that will disadvantage them.  This suggests, for example, a simple welfarist reason for resistance to gay marriage.  To the extent that tolerance of gay unions communicates a movement toward social equality between gay and straight people, that’s likely to generate status anxiety (and hence resistance) among groups that find that status change threatening.

To circle back to animal rights, what distinguishes the guardian/companion ordinances from other laws designed to change social status is that they adopt an exclusively expressivist strategy.  The civil rights reforms of the 1960s certainly communicated volumes about the changing social status of different racial groups, but it did so largely through substantive changes in the law that had tangible effects.  These animal ordinances, by contrast, communicate a non-property status for animals, but do no more than communicate, much in the manner of a legislative resolution that makes a salubrious declaration without working any substantive change in the law.  I'm thus skeptical that these ordinances will have much effect on the treatment of animals, but they're a step in the right direction, if only a marginal one.

Posted by Dave_Fagundes on February 18, 2006 at 07:07 AM in Legal Theory, Property | Permalink | Comments (5) | TrackBack

Wednesday, February 15, 2006

Real Estate Quiz

Summer is coming, and perhaps you are thinking of buying a second home.  Delivered with today's New York Times is a 132-page glossy magazine from Allan Schneider Associates with properties for sale or rent in the Hamptons, Shelter Island, and the North Fork of Long Island.  The prices range from $400,000 to the tens of millions, but the most exciting properties are the ones that only provide "price upon request."

I thought it might be fun to take a guess at the prices for three of the properties in the Allan Schneider booklet:

  • Three Ponds Farm, which includes an 18-hole golf course and 14 gardens
  • "Paradise Found," the listing for a English county manor house (with three-bedroom guest house) in Sagaponack
  • Longview, a majestic Gin Lane Georgian estate with staff quarters and a screening room

Take a look and take a guess in the comments.  I'll contact the brokers and provide an update with the actual prices.

UPDATE:  Answers below the fold.

Three Ponds Farm:  $75 million

"Paradise Found": $14.995 million

Longview: $35 million

Posted by Matt Bodie on February 15, 2006 at 03:12 PM in Property | Permalink | Comments (4) | TrackBack

Tuesday, January 24, 2006

Genres of elite property scholarship

One of the fields I write and teach in is Property, which -- outside of once-in-a-decade moments like Kelo (the last was probably Lucas v. South Carolina Coastal Council in 1992)-- isn't a ripped-from-the-headlines subject. As I've been weighing potential article topics during my pre-tenure period, I've noticed that, generally, two types of property articles place well: those on takings and those on what I'll call, for want of a better term, property theory. As with all legal scholarship (and scholarship generally), each is generic in a formal sense, with recurring themes and cadences. The takings piece gets attention first and foremost because it's Constitutional Law, and also because it sorts difficult, contested doctrine in new ways (hopefully, if that's even possible), and proposes some descriptive or prescriptive twist.  The theory piece gets attention first and foremost because it's Theoretical and works its way down from some identifiable theoretical apparatus, and/ or because it can pretty neatly work its way out from an interesting observation (the anti-commons, or givings, for example) that gets applied more broadly.

On good days, I enjoy both genres immensely.  Today I've been re-reading Tom Merrill and Henry Smith's efforts, across a series of articles, to re-center property theory around a more classical and formal "in rem" vision of property, and while I haven't agreed with them entirely, I find their discussion entirely useful in thinking through what is lost, as a matter of theory and culture, when legal realists and legal economists reduce property relations to a series of divisible rights.  And I've been reading this material (and plenty of others) in the midst of trying to squeeze out another damned takings piece -- which means I've been reading the vast and often (though certainly not always) fascinating literature on the subject and of course the old incoherent, all-over-the-map Supreme Court decisions of the past thirty odd years.  Big fun.  Seriously.

Real property law isn't particularly sexy. It's mostly state and local law -- which means that it runs against the relentless focus on federal statutory and constitutional law that elite law schools and national media prefer. As common law, it changes slowly (with the constitutional common law of takings being the great exception), and the legal issues created by the relative newcomer of zoning/ land use planning have remained fairly stable over time, even as new planning tools have been developed. Hence, I think, the law review market for two genres that represent, on the one hand, the federal and foundational (constitutional takings), and on the other, the universally descriptive (theory).

There's a third genre that I think is trickier, because it appears to turn the other two on their head: the empirical case study of a property or regulatory regime, whether of the present or past.  It is naturally local and anecdotal, and any claims for the typicality or reproducibility of its results must be tentative. And yet, when a case study provides significant insight into an issue where previous theorists and commentators have demonstrated the wrong intuition -- and I'm thinking here of Robert Ellickson's study of Shasta County's fence laws and, more recently, of Nicole Garnett's new piece on the tendency towards above-market compensation for condemnees in eminent domain actions -- it can play a more important role in extending our understanding of property law in action than another neat theory or takings piece.  The case study is un-sexy, localized, social (rather than bookish), and takes a long time to develop.  It's kind of like Property itself.

Posted by Mark Fenster on January 24, 2006 at 11:50 PM in Property | Permalink | Comments (4) | TrackBack

Wednesday, December 14, 2005

More on "sprawl" . . .

A few days ago, I linked to Glenn Reynolds's op-ed, reviewing Bruegmann's new book on "sprawl."  For more on the op-ed, the book, and the issue, check out "PropertyProf Blog," where there are a lot of meaty new posts.

Posted by Rick Garnett on December 14, 2005 at 09:58 AM in Property | Permalink | Comments (0) | TrackBack

Wednesday, December 07, 2005

Takings in Land (and non-land)

After reading City of Oakland v. Oakland Raiders, 32 Cal. 3d 60 (1982) for property tomorrow, I confess that I am impelled to blog about what I have been wondering for so long. How do the eminent domain rules which seem perfectly workable (if sometimes unjust) when applied to property in land work when they are moved to chattels and to ideas?
First off, there are a serious of problems of jurisdiction. In City of Oakland, the government of Oakland attempted to use eminent domain to compulsorily acquire the Oakland Raiders. If it had succeeded (which it did not), why limit themselves to the Raiders? Presumably when the Dallas Cowboys or the Buffalo Bills come to play in Oakland, they will be subject to the jurisdiction of the city, so if the city could use eminent domain to acquire their own team, couldn't they acquire the visitors too? Wouldn't the same analysis apply to all sorts of national corporations? Does the fact that Microsoft does business in Oakland imply that the city has the power (if it could only muster the cash) to compulsorily acquire a majority share in the firm for fair market value? Or is there some deeper but unspoken nexus requirement before eminent domain can be exercised?

What about intellectual property? Does the gift of a federal patent automatically preclude all state interference with it, or could Nevada compulsorily acquire pharmaceutical patents and use them to manufacture low-cost drugs without infringement? For that matter, how do different states use eminent domain against each other? Could Nevada use eminent domain every time a California police officer drives into the state to compulsorily acquire their patrol car? Could California simply acquire them back? And so on?
And for all of these things, where is the relevant Fair Market Value assessed? In the state where the property comes from, or the state where the property goes? And so on.
I did not intend for this post to be quite such a casebook-style blitz of questions, but I confess that I simply don't understand how the principles of eminent domain are supposed to work once we leave the fabled lands of real estate.

Posted by Will Baude on December 7, 2005 at 02:43 PM in Property | Permalink | Comments (9) | TrackBack

Tuesday, November 29, 2005

Adverse Possession as a Human Rights Violation?

My colleague, Frank Snyder, passes on the news that the European Court of Human Rights has ruled that -- at least in some circumstances -- the United Kingdom's law of adverse possession violates the European Convention on Human Rights.  Here is a press release. 

The facts of the case, J A Pye (Oxford) Ltd. v. United Kingdom, are complicated but, in a nutshell, the applicants alleged that the United Kingdom law on adverse possession, by which they lost land with development potential to a "neighbour," operated in violation of Article 1 of Protocol No. 1 in their case.   According to the press release:

The Court took the view that, with one or two limited exceptions, the uncertainties which sometimes arose in relation to the ownership of land were very unlikely to arise in the context of a system of land ownership involving compulsory registration (as in the applicants' case), where the owner of the land was readily identifiable. In the days before registration became the norm, a result whereby an adverse possessor of land was rewarded by obtaining title could be justified as avoiding protracted uncertainty as to where the title to land lay; where land was registered, it was difficult to see any justification for a legal rule which led to such an unjust result. . . .

The Court accepted that the limitation period of 12 years was relatively long and that the law of adverse possession was well-established and had not altered during the period of the applicants' ownership of the land. It was further accepted that, in order to avoid losing their title, the applicants had to do no more than regularise the Grahams' occupation of the land or issue proceedings to recover its possession within the 12-year period. The question nevertheless remained whether, even having regard to the lack of care on the part of the applicants and their advisers, the deprivation of their title to the registered land and the transfer of beneficial ownership to those in unauthorised possession struck a fair balance with any legitimate public interest served.

The Court reiterated that the taking of property in the public interest without payment of compensation reasonably related to its value was justified only in exceptional circumstances. . . .

I'm married to a Property prof, but am nevertheless (or, perhaps, therefore) completely ignorant about what -- if anything -- has been going on in the United States on this front.  Have constitutional challenges to adverse possession been sustained, or even raised? 

Posted by Rick Garnett on November 29, 2005 at 10:26 PM in Property | Permalink | Comments (16) | TrackBack