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Abstract:
This Article challenges a foundational assumption about eminent domain - namely, that owners are systematically undercompensated because they receive only fair market value for their property. The Article shows that, in fact, scholars have overstated the undercompensation problem because they have focused on the compensation required by the Constitution, rather than on the actual mechanics of eminent domain. The Article examines three ways that Takers (i.e., non-judicial actors in the eminent domain process) minimize undercompensation. First, Takers may avoid taking high-subjective-value properties. Second, Takers frequently must pay more compensation in the form of relocation assistance. Third, Takers and property owners may voluntarily settle on above-market compensation during pre-condemnation negotiations. The Article concludes by reflecting upon current efforts to reform eminent domain legislatively. Prominent legal scholars recently have proposed compensation-based reforms as an alternative to constraints on the use of eminent domain. The final Part rejects this suggestion, arguing that there are two problems, unique to takings raising public use questions, that more money cannot solve: First, high compensation levels may undermine political resistance to questionable projects; second, private takings may generate non-instrumental harms that will persist even as compensation increases.

public use, eminent domain, takings, compensation, economic development, Kelo

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.

land use, urban, growth, suburban, order maintenance, broken windows

Abstract:
Individuals struggling to move from welfare to work face numerous obstacles. This Article addresses one of those obstacles: lack of transportation. Without reliable transportation, many welfare recipients are unable to find and maintain jobs located out of the reach of traditional forms of public transportation. Professor Garnett argues that lawmakers should remove restrictions on informal van or jitney services, allowing entrepreneurs to provide low-cost transportation to their communities. This reform would not only help people get to work, but it could also provide jobs for low-income people.

transportation, welfare, welfare reform, urban, poverty, spacial mismatch

Abstract:
This short Essay explores the Supreme Court's suggestion in Kelo v. New London that public, participatory planning may be a constitutional safe harbor that separates impermissible private takings from presumptively valid public ones. After briefly reviewing the Court's discussion of the planning that preceded the Kelo litigation, the Essay examines how Kelo's emphasis on planning departs from standard rational basis review of economic policies and asks what such a departure means for future public-use litigants. The Essay then explores three possible practical benefits of a constitutional rule that encourages the government to engage in detailed planning before exercising the power of eminent domain: First, can public, participatory planning help legitimize so-called economic-development takings? Second, was the Court correct to assume that planning will limit pretextual takings, i.e., the taking of private property in the name of economic development but for the true purpose of benefiting a private individual? And third, will careful planning by the government lead to more successful projects?

eminent domain, Kelo, takings, economic development, planning

Abstract:
Judicial challenges to order-maintenance policing apparently are leading some city officials to adapt the tools of property regulation to a task traditionally reserved for the police - the control of disorderly people. Examples of efforts to regulate disorder, ex ante, through land-management strategies include homeless campuses that centralize housing and social services, neighborhood exclusion zone policies that empower local officials to exclude disorderly individuals from struggling communities, and the selective targeting of inner-city neighborhoods for aggressive property inspections. These tactics employ different management techniques - some concentrate disorder and others disperse it - but they have same goal: to relocate urban disorder from one place (where it is perceived to be harmful) to another (where it hopefully will be more benign). These developments are not surprising. Urban policymakers long assumed that regulations ordering land uses effectively curb disorder (an assumption that I have questioned). And, moreover, the broad deference granted to the government-qua-regulator makes disorder-relocation policies particularly attractive. Unfortunately, these new disorder-relocation policies may create what Dan Kahan has called a cost of rights problem: In an effort to avoid constitutional challenges, local governments may adopt policies that impose costs at least as significant as their order-maintenance-policing substitutes. This Article seeks to understand what those costs might be.

Land use, urban development, order maintenance, social norms, broken windows, policing

Abstract:
Over the past two decades, the "broken windows" hypothesis by George Kelling and James Q. Wilson has revolutionized thinking about urban policy. This now-familiar theory is that uncorrected manifestations of disorder, even minor ones like broken windows, signal a breakdown in the social order that accelerates neighborhood decline. The response to this theory has been a proliferation of policies focusing on public order.

Largely missing from the academic debate about these developments is a discussion of the complex and important role of property regulation in order-maintenance efforts. This Article attempts to fill that property law gap in the public-order puzzle by tackling the complicated relationship between property regulation and order-restoration efforts.

Order maintenance, broken windows, land use, zoning, public order, urban development

Abstract:
This Essay reviews Richardson Dilworth, 'The Urban Origins of Suburban Autonomy' (Harvard University Press 2005). Dilworth's history of metropolitan New York City and northern New Jersey seeks to connect early public infrastructure investments and suburban political autonomy. This Essay uses Dilworth's case studies of early metropolitan fragmentation as a springboard for discussing the continued connection between public infrastructure investment, suburban growth, and intra-metropolitan equity. In particular, the Essay examines the tendency among opponents of metropolitan fragmentation to embrace limits on infrastructure subsidies. These policies have intuitive appeal: If infrastructure subsidies foster sprawl and enable metropolitan fragmentation, then limiting subsidies should limit sprawl (and perhaps fragmentation as well). Unfortunately, using infrastructure policies to curb suburban growth and rein in municipal autonomy may have negative distributional consequences including, importantly, a loss of affordable housing and a related reduction in opportunities for intra-metropolitan mobility.

Metropolitan, regional government, growth management, suburban, fragmentation, infrastructure

Abstract:
Most academics assume that suburbanites are exiters who have abandoned central cities. The exit story is a foundational one in the fields of land-use and local-government law: Exiters' historical, social, and economic connections with their center cities are frequently used to justify both growth controls and regional government. The exit story, however, no longer captures the American suburban experience. For a majority of Americans, suburbs have become points of entrance to, not of exit from, urban life. Most suburbanites are enterers - people who were born in, or migrated directly to, suburbs and who have not spent time living in any central city. This Essay situates the underappreciated suburbs as entrance story within the current debates about growth management and regional governance. The exit paradigm provides a powerful normative justification for these policies. When it is stripped away, proponents are left with utilitarian arguments that are challenged by economists who argue that metropolitan fragmentation is efficiency-enhancing and that may ring hollow with suburban enterers. This Essay seeks to sound a cautionary note in the growth-management and regional-government debates. The exit story is an outdated rhetorical flourish that tends to oversimplify the case for - and camouflage the complexities of - these policies, especially the distributional and transitional-fairness concerns raised by restricting suburban growth.

sprawl, suburbs, regional government, growth controls, growth management

Abstract:
Government officials regularly use the power of eminent domain to benefit private entities, and just as regularly justify their actions with post hoc assertions about the need to promote "economic development." In Hawaii Housing Authority v. Midkiff, the Supreme Court reaffirmed that the Fifth Amendment demands broad deference to a government's decision to exercise the power of eminent domain. Midkiff makes clear that "public use" challenges are subject to rational basis review; so long as a taking can be justified by some conceivable public purpose, it will be upheld. Yet in recent years, a number of courts have put the government to its proof-requiring a demonstrated connection between the challenged taking and the particular purpose used to justified it. In so doing, these courts refused to allow the government to avail itself of the "conceivability" safety valve provided by rational basis review, a standard that requires approval of any taking that might serve the public interest in some theoretically possible way.

In other words, these cases may have been wrongly decided. A central conclusion of this Article, however, is that they were not wrongheaded. This Article will show that the courts' instincts were sound, and that Midkiff needs to be supplemented with precisely the kind of means-ends scrutiny employed in these recent cases. This conclusion proceeds from an analogy to a different kind of "takings" claim. While the public-use limitation on the takings power has been widely regarded as a dead letter at least since Midkiff (notwithstanding the abovementioned surprises), standards for evaluating so-called "regulatory" takings have evolved substantially. Importantly, after Nollan v. California Coastal Commission and Dolan v. City of Tigard, the government may not demand that a property owner cede title to property in exchange for regulatory approval unless it establishes that the exaction demanded is "roughly proportional" to the impact of the proposed development.

Although the exactions cases did not overrule Midkiff, they may have something important to say about the public use problem. One federal court of appeals judge has suggested that "considerable tension" exists between the deference required in public use cases and the heightened scrutiny of exactions. Recent public use cases provide real-world evidence of this tension. Despite the fact that current law precludes inquiry into whether a compensated taking is calibrated to advance its asserted purpose, each these courts took pains to distinguish Midkiff so as to require the government to establish a means-ends connection similar to that demanded by Nollan and Dolan. This Article examines whether this jurisprudential move should be formalized - that is, whether a version of the means-ends review required of exactions should extend to public use cases. Specifically, it explores (1) whether the justifications for heightened means-ends scrutiny of exactions are present when the government acquires land by eminent domain, and, (2) what such scrutiny might look like in a public use case.

property, takings, eminent domain, economic development

Abstract:
Most zoning laws severely restrict residents' ability to work from home. Some prohibit it outright. These regulations serve the ostensible purpose of protecting neighbors from externalities that might be generated by home businesses. But, home occupation restrictions also reflect in a particularly sharp way the central motivating ideology underlying all zoning laws - namely, that the "good life" requires the careful segregation of work and home. Today, home business regulations are being challenged by both planning theory and economic reality. At the same time that many in the academy and planning professions are calling into question zoning's pervasive segregation of land uses, increasing numbers of Americans are choosing to work from home. Homeowners, however, continue to worry about the introduction of commercial activity into residential neighborhoods. This article examines how local governments might respond to zoning law's "home business dilemma."

zoning, land use, home businesses, externalities, suburban

Abstract:
This paper is an invited contribution to the Bernard Siegan Memorial Conference on Economic Liberties, Property Rights, and the Original Meaning of the Constitution at the University of San Diego School of Law. The paper poses three questions about the historical evidence used to support the dominant academic view that the Fifth Amendment's Takings Clause, as originally understood, extended only to physical appropriations or invasions of private property. First, the paper questions the relevance of state and local regulatory practices to the pre-incorporation understanding of the Takings Clause. Second, the paper expresses concern about the use of state-court cases decided well into the nineteenth century to elucidate the meaning of a late-eighteenth-century legal provision. Finally, the paper asks whether the state decisions frequently cited for the no taking without a touching principle might have been answering different questions than the modern regulatory takings problem.

property, takings, regulatory takings

Abstract:
Election day 2000 was not a good day for proponents of suburban growth controls. The overwhelming initial support for initiatives that proposed state-wide growth management plans in Colorado and Arizona withered in the face of vigorous opposition campaigns. And, pro-planning forces in Oregon woke up on Wednesday morning to learn that voters had approved a little-noticed initiative amending the state constitution to require compensation for partial takings - that is, for any reduction in the fair market value of property resulting from government regulation - thus throwing into question the future of the State's widely touted model controlled-growth scheme.

These election results fly in the face of conventional wisdom: Public opinion polls consistently show high levels of support for curbing suburban growth, with many Americans listing the ills of suburban sprawl as the most important issue facing their communities. What's more, so-called smart growth initiatives enjoyed unprecedented success at the polls during the 1998 election cycle. Advocates were understandably disappointed with the results in Colorado and Arizona, where unprecedented growth has driven anti-sprawl sentiments to an all time high. At least on the surface, all three of these election results suggest that voters' asserted support for growth controls may be thinner than advocates had hoped - or at least that it has limits. This essay uses the November election results to explore what those limits may be: Why did voters reject growth controls in Colorado and Arizona, and limit them in Oregon, despite repeated protestations that they strongly support them? What distinguishes the so-called smart-growth policies that enjoyed continued success at the polls? And, what does the discrepancy between successful and unsuccessful policies tell us about how people may react to future efforts to control the supposedly dreaded suburban sprawl?

Smart growth, growth controls, takings, initiatives

Abstract:
This Essay explores the role of private norms in the allocation of urban public spaces as well as local governments' efforts to enforce these norms. The Essay was prepared for the 2008 Brigham-Kanner Property Rights Conference, William and Mary School of Law, as a tribute to Robert Ellickson.

community policing, informal norms

Abstract:
More than 1,600 Catholic elementary and secondary schools have closed or been consolidated during the last two decades. The Archdiocese of Chicago alone (the subject of our study) has closed 148 schools since 1984. Primarily because urban Catholic schools have a strong track record of educating disadvantaged children who do not, generally, fare well in public schools, these school closures have prompted concern in education policy circles. While we are inclined to agree that Catholic school closures contribute to a broader educational crisis, this paper shies away from debates about educational outcomes. Rather than focusing on the work done inside the schools, we focus on what goes on outside them. Specifically, using three decades of data drawn from the census and from the Project on Human Development in Chicago Neighborhoods (“PHDCN”), we seek to understand what a Catholic school means to an urban neighborhood. We do so primarily by measuring various effects of elementary school closures in the Chicago neighborhoods where they operated for decades. We find strong evidence that Catholic elementary schools are important generators of social capital in urban neighborhoods: Our study suggests that neighborhood social cohesion decreases and disorder increases following an elementary school closure, even after controlling for numerous demographic variables that would tend to predict neighborhood decline and disaggregating the school closure decision from those variable as well. This paper discusses these findings and situates them within important land-use and education-policy debates.

School choice, externalities, schools, cities, churches, empirical, neighborhoods, social norms

Abstract:
This paper was prepared for a volume of essays exploring the application of Peruvian economist Hernando de Soto's ideas in a market economy. DeSoto's conviction about the importance of clear titles and stable property rights has had enormous influence on international development policy. The dominance of the property-law aspects of de Soto's work, however, poses a significant difficulty for those interested in thinking about how his ideas apply on the American scene, where titles are clear and property rights stable. But de Soto's central insight -- that third-world poverty results from the inability of the hard working entrepreneurs to harness the wealth generated in the informal economy by transforming it into mainstream capital -- is not simply a property law insight. He also argues that many millions of hard-working entrepreneurs are forced to operate in the informal economy because of regulatory rules that resemble, and are the remnants of, "mercantilism." In many American cities, the regulations governing the economic activities most closely described in The Other Path -- urban transportation and street vending -- are characterized by mercantilist qualities akin to those that concern de Soto: "Popular access to private enterprise is difficult or impossible for the popular classes, the legal system is excessive and obstructive, there are massive public and private bureaucracies...and the state intervenes in all areas of activity." This essay explores these regulations and argues that they ought to concern those interested urban development and the urban poor.

urban development, poverty, entrepreneurship

Abstract:
This Essay, which was prepared for a University of Chicago Law School’s symposium on “Rethinking the Local Government Toolkit,” argues that affordable private schools serve an important urban-development function: They partially unbundle the residential and educational decisions of families with children. Thus, state and local officials hoping to make our make central city neighborhoods attractive places to raise children should consider employing a familiar urban development tool - tax incentives - to make quality private schools more financially accessible to middle-income families. The Essay proceeds in three parts. Part I builds the case for a middle class city. Part II demonstrates the centrality of quality educational options, including affordable private schools, to the goal of building a middle class city. Finally, Part III suggests a use of tax policy to help make private schools accessible for those of modest means. Specifically, the Essay proposes that either state or city governments grant tax credits for charitable donations to nonprofit organizations that award scholarships to children attending private elementary and secondary schools. Seven states already have such “scholarship tax credit” programs in place, which could either be replicated in other states or adapted to the local government setting.

local government, private school, education, central city neighborhoods, middle class

Abstract:
This Essay, prepared for a NYU Journal of Law and Liberty symposium on “The Unknown Justice Thomas,” challenges the oft-repeated criticism that Justice Clarence Thomas’s opinions reflect a lack of empathy for the less fortunate. The Essay argues that, on the contrary, Justice Thomas’s opinions are replete with expressions of concern for the “little guy,” which are frequently overlooked or misinterpreted. The Essay explores three themes reflecting this concern in Thomas’s opinions.

Clarence Thomas