Category Archives: Property

Blog Post: Is the Left’s Skepticism about Zoning’s Increasing Rents like the Right’s Skepticism about Global Warming?

DSC_0072Blog Post: Rick Hills, Is the Left’s Skepticism about Zoning’s Increasing Rents like the Right’s Skepticism about Global Warming?, PrawfsBlawg, Apr. 19, 2018.

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Call-for-papers: “Property Rights and Human Rights: New Possibilities in an Age of Inequality”

Call-for-papers: “Property Rights and Human Rights: New Possibilities in an Age of Inequality” – Conference in Melbourne, Australia, Aug. 9-10, 2018, cfp deadline March 20, 2018.

New Article: “Zoning, Land-Use Planning, and Housing Affordability”

New (Short) Article: Vanessa Calder, Zoning, Land-Use Planning, and Housing Affordability, Cato Inst., SSRN Feb. 2018. Abstract below:

Local zoning and land-use regulations have increased substantially over the decades. These constraints on land development within cities and suburbs aim to achieve various safety, environmental, and aesthetic goals. But the regulations have also tended to reduce the supply of housing, including multifamily and low-income housing. With reduced supply, many U.S. cities suffer from housing affordability problems.

This study uses regression analysis to examine the link between housing prices and zoning and land-use controls. State and local governments across the country impose substantially different amounts of regulation on land development. The study uses a data set of court decisions on land use and zoning that captures the growth in regulation over time and the large variability between the states. The statistical results show that rising land-use regulation is associated with rising real average home prices in 44 states and that rising zoning regulation is associated with rising real average home prices in 36 states. In general, the states that have increased the amount of rules and restrictions on land use the most have higher housing prices.

The federal government spent almost $200 billion to subsidize renting and buying homes in 2015. These subsidies treat a symptom of the underlying problem. But the results of this study indicate that state and local governments can tackle housing affordability problems directly by overhauling their development rules. For example, housing is much more expensive in the Northeast than in the Southeast, and that difference is partly explained by more regulation in the former region. Interestingly, the data show that relatively more federal housing aid flows to states with more restrictive zoning and land-use rules, perhaps because those states have higher housing costs. Federal aid thus creates a disincentive for the states to solve their own housing affordability problems by reducing regulation.

New Conference: “Land and Poverty Conference 2018: Land Governance in an Interconnected World” – World Bank, DC, Mar. 19-23, 2018.

Conference website here.

-Thanks to Heather Hughes for the heads up!

New Article: “Kaplow and Shavell and the Priority of Income Taxation and Transfer”

New Article: David Blankfein-Tabachnick & Kevin A. Kordana, Kaplow and Shavell and the Priority of Income Taxation and Transfer, 69 Hastings L.J. 1 (2017). Abstract below:

This Article rejects a central claim of taxation and private law theory, namely, Kaplow and Shavell’s prominent thesis that egalitarian social goals are most efficiently achieved through income taxation and transfer, as opposed to egalitarian alterations in private law rules. Kaplow and Shavell compare the efficiency of rules of tort to rules of tax and transfer in meeting egalitarian goals, concluding that taxation and transfer is always more efficient than other private law legal rules. We argue that Kaplow and Shavell reach this conclusion only through inattention to the body of private law that informs the very basis of their discussion: underlying property entitlements. This Article contends that Kaplow and Shavell’s comparison of rules of taxation to rules of tort fails to take proper account of the powerful role that (re)assigning underlying property entitlements plays in achieving egalitarian goals, even at the level of formal theory. We conclude that, contrary to Kaplow and Shavell’s prominent claim, as a matter of efficiency, the rules of income taxation and transfer are not always preferable to alterations in the initial assignment of property entitlements in achieving distributive or egalitarian goals.

New Article: “Buchanan and the Right to Acquire Property”

New Article: James W. Ely Jr., Buchanan and the Right to Acquire Property, Cumberland L. Rev., SSRN 2017. Abstract below:

This article examines the impact of the Supreme Court decision in Buchanan v. Warley (1917) invalidating residential segregation laws as a deprivation of property rights without due process of law. The decision was premised on a strong affirmation of the right to acquire property. The article explores the historical background and contemporary significance of the right to acquire property. It notes that early state constitutions expressly recognized such a right. It points out that the right to acquire found practical expression in hostility to state-conferred monopoly and in the right to follow common occupations, two doctrines which evolved under the due process clause of the Fourteenth Amendment. The article stresses that the right to acquire property, as in Buchanan, serves to protect the interests of the economically disadvantaged, racial minorities, and fledgling entrepreneurs.

Although courts continued to invoke the right to acquire property, by the early twentieth century such right was increasingly limited by the spread of occupational licensing and enactment of laws hampering competition in certain businesses. This trend was facilitated by the emergence of New Deal jurisprudence which downplayed the rights of property owners and emphasized judicial deference to the economic judgment of legislators. As judicial review of economic regulations became largely perfunctory, occupational licensing and entry barriers proliferated in the years following World War II. Recently, however, some courts have looked skeptically at laws restricting entry into common occupations. The article concludes that the right to acquire property, although often ignored, retains some vitality.

Op-ed: “When Affordable Housing Meets Free-Market Fantasy”

Op-ed: Zelda Bronstein, When Affordable Housing Meets Free-Market Fantasy, Dissent Magazine, Nov. 27, 2017. _DSC0316

Good op-ed: “The left reconsiders zoning”

Good op-ed: Ilya Somin, The left reconsiders zoning, Wash. Post, Nov. 21, 2017.

New Article: “Property’s Role in the Fundamental Political Structure of Nations: The Southern African Experience”

Klug, Heinz, Property’s Role in the Fundamental Political Structure of Nations: The Southern African Experience (October 30, 2017). 6 Brigham-Kanner Prop. Rts. Conf. J. 145 (2017); Univ. of Wisconsin Legal Studies Research Paper No. 1425. [Abstract below]

In order to explore the relationship between property and the structure of the State, this essay will first address the connection between land tenure, sovereignty, and legitimacy. This will be followed by a brief outline of the general history of land reform before focusing more directly on the relationship between land and the State in southern Africa. Finally, the essay will look at tenure diversity as a basis for restructuring the relationship between democratic legitimacy and the post-colonial State in southern Africa.

New Article: “Seizing Family Homes from the Innocent: Can the Eighth Amendment Protect Minorities and the Poor from Excessive Punishment in Civil Forfeiture?”

Rulli, Louis, Seizing Family Homes from the Innocent: Can the Eighth Amendment Protect Minorities and the Poor from Excessive Punishment in Civil Forfeiture? (2017). University of Pennsylvania Journal of Constitutional Law, Vol. 19, p. 1483, 2017; U of Penn Law School, Public Law Research Paper No. 17-48. [Abstract below]

Civil forfeiture laws permit the government to seize and forfeit private property that has allegedly facilitated a crime without ever charging the owner with any criminal offense. The government extracts payment in kind — property — and gives nothing to the owner in return, based upon a legal fiction that the property has done wrong. As such, the government’s taking of property through civil forfeiture is punitive in nature and constrained by the Eighth Amendment’s Excessive Fines Clause, which is intended to curb abusive punishments.

The Supreme Court’s failure to announce a definitive test for determining the constitutional excessiveness of civil forfeiture takings under the Eighth Amendment has led to disagreement among state and federal courts on the proper standard. At the same time, the War on Drugs has resulted in an explosion of civil forfeiture filings against the property of ordinary citizens — many are whom are innocent of any wrongdoing — and therefore there is a profound need for a robust constitutional test that satisfies the Eighth Amendment’s original purposes. This need has grown more urgent because civil forfeiture practices are increasingly plagued by police abuses motivated by self-gain, and recent studies show that civil forfeitures disproportionately affect low-income and minority individuals who are least able to defend their hard-earned property.

This Article documents the aggressive use of civil forfeiture in Pennsylvania and, by way of illustration, presents the plight of elderly, African-American homeowners in Philadelphia who were not charged with any crime and yet faced the loss of their homes because their adult children were arrested for minor drug offenses. In such cases, the Eighth Amendment should play a vital role in preventing excessive punishments. But some courts mistakenly apply a rigid proportionality test, upon prosecutorial urging, that simply compares the market value of the home to the maximum statutory fine for the underlying drug offense. When a home value is shown to be less than the maximum fine, these courts presume the taking to be constitutional. Under such a one-dimensional test, prosecutors routinely win because the cumulative maximum fines for even minor drug offenses almost always exceed the market values of modest, inner-city homes. This cannot be the proper test. Instead, this Article contends that the proper constitutional test for excessiveness must be a searching, fact-intensive inquiry, in which courts are required to balance five essential factors: (1) the relative instrumentality of the property at issue to the predicate offense; (2) the relative culpability of the property owner; (3) the proportionality between the value of the property at issue and the gravity of the predicate offense; (4) the harm (if any) to the community caused by the offending conduct; and (5) the consequences of forfeiture to the property owner.