Abstracts for many of the Property Rights Conference presentations can be found below. Further materials that support and supplement the panel discussions have been included.
Friday, October 2, 2020
Panel 1: Where Theory Meets Practice: A Tribute to Henry E. Smith
Abstract: Modularity, Modernist Property, and the Modern Architecture of Property
Carol M. Rose, Gordon Bradford Tweedy Professor of Law and Organization, Emerita, Yale Law School; and Ashby Lohse Professor of Water and Natural Resource Law, Emerita, University of Arizona Law College
Henry Smith’s theory of property centers on the human need for informational shortcuts in dealing with the claims of others. Property law treats property as things, or as he often says, modules—objects whose boundaries people may see and understand as belonging to themselves or others, without having to know the details of their interior interrelationships. Such “things” are protected by exclusion rules with some more fine-tuned governance rules for boundary issues.
Smith’s theory is a welcome relief from the unproductive theory of property as “bundles of sticks,” but it does raise some questions. Some are these: can property “modules” really be combined like legos, or are some combinations messier, as in unsuccessful corporate takeovers? What, actually, is a property “thing”? Is it something natural like an apple, or is it (also) something like a farm or a condominium—that is, an artifact of property law itself? How stable are the relationships between exclusion rules and governance rules? In these and other issues, can the information-economizing theory of property take more lessons from law and economics? Aside from economizing on information, should a theory of property also leverage other purposes of property, such as the enhancement of wealth, autonomy, and democratic self-government?
Panel 2: The Housing Crisis
Abstract: Planning the Next Century of Zoning: Economic Segregation, Housing Affordability, and the Regional Imperative
Ezra Rosser, Professor, American University, Washington College of Law
Nearly 100 years ago, localities were granted the power to zone. Ever since, cities and localities have used their zoning authority to shape development in their communities and to isolate themselves from their neighbors. Restrictive local zoning severely constrains the housing supply, contributing significantly to the national housing affordability crisis. Zoning is typically thought of in simplistic terms as involving SimCity-type separation of uses—commercial here, residential there—but strong deference to local zoning has made zoning a driver of sharp racial and opportunity divides across communities. For the past century, our approach to zoning in particular has largely ignored the regional and exclusionary impact of defining rights locally. Property theory can contribute to the fight against pervasive economic inequality by showing how advocates and policy makers can change zoning and property law to break down the false boundaries that separate rich and poor communities. This article argues that by reimaging zoning as regional and by asserting the primacy of state objectives, policy makers can made headway on the housing affordability crisis. Reining in local zoning is hardly sexy or exciting but it does offer a radical yet feasible alternative to correct for some of the inequalities built into the way local zoning has operated over the past one hundred years. Reimaging zoning as more than just a means of separating uses or of providing stability to homeowners is essential if we are to disrupt the ways traditional property rights protections contribute to poverty and to race- and class-based inequalities. Previous efforts to prioritize public welfare over local protectionism—including developer remedies tied to low-income housing, school busing and funding equalization programs, and, most recently, attempts to override local zoning opposition in order to promote affordable housing near public transportation—provide valuable lessons on what works and what does not. But the challenges associated with structural inequality arguably call for us to move beyond those examples, rethinking what ownership would mean and what role it would play in society if regional zoning replaces municipal dominance when it comes to land use and access to public goods.
Recent economic mobility studies confirm what the real estate market has long known: artificial boundaries, especially those infused with separate governance power, can lead to dramatically divergent outcomes at the city and even block level. The trend over zoning’s first century—seen for example in the rise of gated communities with semi-municipal functions—has been towards greater and greater concentration of geographic and locally defined privilege. It is time for zoning to embrace a wider circle of concern to be more ambitious about what it can accomplish. The housing affordability crisis provides the most concrete way of exploring the potential impact of a regional approach to zoning. The current dynamic—in which every city competes to attract high-income residents and to foist problems of poverty and homelessness on neighboring jurisdictions—is divorced from the “general welfare” which has traditionally been the justification for the power to zone. Reinvigorating regional zoning provides a concrete way of forcing localities to permit greater housing density and increasing the supply of affordable housing. For the past hundred years, we have largely ignored the impact of municipal zoning on inequality and poverty. This article, which combines property theory with a grounded look at the connection between zoning and housing supply, is effort to partially correct for that in zoning’s second century by pushing policy makers and the public to recognize the imperative of planning and governing at a regional, not local, level.
Additional Materials: America's Housing Crisis and Property Rights PowerPoint PDFJames S. Burling, Vice President for Legal Affairs, Pacific Legal Foundation, Sacramento, California
Originally presented at the CLE International Presentation, February 10, 2020, in Austin, Texas.
Abstract: Solving the Crisis of Homelessness
Wendie L. Kellington, Attorney, Kellington Law Group, PC, Lake Oswego, Oregon
The issue: Homeless camping and encampments lack basic sanitation and are unsafe for those experiencing homelessness and for those outside of it. The pandemic worsens the problem and is additive to the existing concern of TB resistance (in all homeless communities), Hepatitis-A (San Diego homeless outbreak 2016-18), typhus (Skid Row) and other serious communicable diseases that flourish in unsanitary conditions. Sweeps merely cause the problem to be relocated elsewhere. Children are raised without access to stable education, in environments risking personal harm and disconnection from society, contributing to the cycle. Homeless parents do not know where to go for help and are frightened to reach out to social services, for fear of losing their children. Access to services is unreasonably complex and, often where access happens, the result is essentially nothing – a homeless person invariably encounters long waiting lists and delays. Society is unhappy with the situation and has a special dislike for how it treats its veterans for whom the ravages of service have left them mentally or physically unable to return to traditional society; how it treats its elderly who find themselves without adequate funds to live; its foster youth who age out and join the homeless ranks with no social skills or desire to gain them; its severely mentally ill citizens who have literally nowhere to go other than a jail or emergency room; its disabled citizens who find they lack the means to support themselves and have nowhere to go, among others. (read more)
Panel 3: The Reach of Government’s Confiscatory Powers over Exigencies and Emergencies
Abstract: Preemption in the Age of the Administrative State
David L. Callies, FAICP, Benjamin A. Kudo Professor of Law, William S. Richardson School of Law, University of Hawaii at Manoa
Whether two general purpose governments – state, local, federal – attempt to regulate the same subject matter or whether only one level of government does and is challenged on the basis of preemption, the subject of preemption is particularly timely at this strange time in our history.
This presentation will deal primarily with the framework for determining and deciding which level of government wins such preemption disputes, with particular emphasis on implied preemption and the evolving applicable standards . It will draw on recent caselaw as well as several recent articles discussing preemption in particular contexts, using such as drone law, premarket approval regulations, vehicle emission regulations, climate change and social security.
Panel 4: The Risk of Unjust Compensation
Abstract: “all temperate and civilized governments:” A Brief History of Just Compensation
James W. Ely Jr., Milton R. Underwood Professor of Law, Emeritus, and Professor of History, Emeritus, Vanderbilt University
This essay examines the history of the just compensation norm in eminent domain. The paper first discusses the common law and natural law origins of the compensation requirement, and stresses that this principle was widely accepted in America long before it was expressly incorporated in the Bill of Rights and state constitutions. Invoking unwritten fundamental principles, several early state courts insisted that compensation was required when government acquired private property even if no constitutional provision mandated an indemnity. The Fifth Amendment was viewed not as an innovation, but simply as declaratory of a fundamental principle. (read more)