Controlling Residential Stakes
We thank Amnon Lehavi, Lior Strahilevitz, participants in The University of Chicago Law School’s Symposium, Reassessing the State and Local Government Toolkit, and participants in the 2009 Property Works in Progress conference held at the University of Colorado School of Law for helpful comments and questions on this project. Prisca Kim and Eric Singer provided excellent research assistance.
- Share The University of Chicago Law Review | Controlling Residential Stakes on Facebook
- Share The University of Chicago Law Review | Controlling Residential Stakes on Twitter
- Share The University of Chicago Law Review | Controlling Residential Stakes on Email
- Share The University of Chicago Law Review | Controlling Residential Stakes on LinkedIn
Local communities often suffer when residents have too small a stake in their homes—a point underscored by recent rashes of foreclosures and abandonments, and implicated by longstanding questions about the effects on communities of renters and owner-occupants, respectively. However, homeowners with too great a financial stake in their homes can also cause difficulties for local governance by acting as risk-averse NIMBYs. Local governments should have a strong interest in helping members of their communities move away from problematic forms of stakeholding and toward more desirable intermediate positions. This Article examines how and why governmental entities at the state and local levels might regulate or shape the financial stakes that residents have in their homes. We give particular attention to the role local governments may play in facilitating homeowner and tenant access to index-based financial instruments that adjust residential risk-bearing. More radically, we suggest that local governments, assisted by state law, could formulate shared equity arrangements in which local residents hold stakes, either directly or through their municipalities, in the housing markets of surrounding localities as well as in their own jurisdictions.
This Essay was written, in part, while Schottenfeld was a lawyer for the NAACP, but it does not necessarily reflect the views of the NAACP. Both of us have worked with or represented members of the Sandridge community and other communities mentioned in this Essay; the views expressed in this Essay are ours alone, but we are deeply grateful for the inspiration and insight we have drawn from these communities and their members. We thank Richard Buery, Devon Carbado, David Chen, Daniel Harawa, and Erika Wilson for their very helpful comments on earlier drafts. We are grateful to Chloe Bartholomew, Suchait Kahlon, Nina McKay, and Briana Thomas for their research assistance; to Kathleen Agno for her ongoing research support; and to Helen Zhao and the editors of The University of Chicago Law Review for greatly improving this Essay. We also appreciate the insights received from participants of the Lutie Lytle Black Women Scholarship Workshop. Finally, we gratefully acknowledge support from the Filomen D’Agostino and Max E. Greenberg Research Fund, New York University School of Law.
This Essay was written, in part, while Schottenfeld was a lawyer for the NAACP, but it does not necessarily reflect the views of the NAACP. Both of us have worked with or represented members of the Sandridge community and other communities mentioned in this Essay; the views expressed in this Essay are ours alone, but we are deeply grateful for the inspiration and insight we have drawn from these communities and their members. We thank Richard Buery, Devon Carbado, David Chen, Daniel Harawa, and Erika Wilson for their very helpful comments on earlier drafts. We are grateful to Chloe Bartholomew, Suchait Kahlon, Nina McKay, and Briana Thomas for their research assistance; to Kathleen Agno for her ongoing research support; and to Helen Zhao and the editors of The University of Chicago Law Review for greatly improving this Essay. We also appreciate the insights received from participants of the Lutie Lytle Black Women Scholarship Workshop. Finally, we gratefully acknowledge support from the Filomen D’Agostino and Max E. Greenberg Research Fund, New York University School of Law.
Historic discrimination in the process of siting and constructing physical infrastructure has sacrificed the Black communities that bear the costs associated with new roads, power lines, and sewage plants while receiving few of the benefits. This Essay advances a "community equity" framework to recognize and protect the sources of value that people hold in their communities. This approach looks beyond the traditional domains of civil rights and land use law. Instead, it embraces analogies in public nuisance and common law torts doctrines as mechanisms for recognizing community harms above and beyond the aggregate of individual claims.
This Essay was written, in part, while Schottenfeld was a lawyer for the NAACP, but it does not necessarily reflect the views of the NAACP. Both of us have worked with or represented members of the Sandridge community and other communities mentioned in this Essay; the views expressed in this Essay are ours alone, but we are deeply grateful for the inspiration and insight we have drawn from these communities and their members. We thank Richard Buery, Devon Carbado, David Chen, Daniel Harawa, and Erika Wilson for their very helpful comments on earlier drafts. We are grateful to Chloe Bartholomew, Suchait Kahlon, Nina McKay, and Briana Thomas for their research assistance; to Kathleen Agno for her ongoing research support; and to Helen Zhao and the editors of The University of Chicago Law Review for greatly improving this Essay. We also appreciate the insights received from participants of the Lutie Lytle Black Women Scholarship Workshop. Finally, we gratefully acknowledge support from the Filomen D’Agostino and Max E. Greenberg Research Fund, New York University School of Law.
This Essay was written, in part, while Schottenfeld was a lawyer for the NAACP, but it does not necessarily reflect the views of the NAACP. Both of us have worked with or represented members of the Sandridge community and other communities mentioned in this Essay; the views expressed in this Essay are ours alone, but we are deeply grateful for the inspiration and insight we have drawn from these communities and their members. We thank Richard Buery, Devon Carbado, David Chen, Daniel Harawa, and Erika Wilson for their very helpful comments on earlier drafts. We are grateful to Chloe Bartholomew, Suchait Kahlon, Nina McKay, and Briana Thomas for their research assistance; to Kathleen Agno for her ongoing research support; and to Helen Zhao and the editors of The University of Chicago Law Review for greatly improving this Essay. We also appreciate the insights received from participants of the Lutie Lytle Black Women Scholarship Workshop. Finally, we gratefully acknowledge support from the Filomen D’Agostino and Max E. Greenberg Research Fund, New York University School of Law.
Historic discrimination in the process of siting and constructing physical infrastructure has sacrificed the Black communities that bear the costs associated with new roads, power lines, and sewage plants while receiving few of the benefits. This Essay advances a "community equity" framework to recognize and protect the sources of value that people hold in their communities. This approach looks beyond the traditional domains of civil rights and land use law. Instead, it embraces analogies in public nuisance and common law torts doctrines as mechanisms for recognizing community harms above and beyond the aggregate of individual claims.
I would like to thank Professors Saul Levmore and Lior Strahilevitz for their thoughtful advice and insight and the editors and staff of The University of Chicago Law Review for their valuable feedback and edits.
In Stop the Beach Renourishment v. Florida Department of Environmental Protection, a plurality of the Supreme Court held that the Takings Clause applies to the judiciary as it does to any government actor. In the more than fifteen years since, none of the sixty courts to consider judicial takings claims have found a judicial taking. In this Comment, Coby Goldberg provides the only comprehensive analysis of the judicial takings caselaw since Stop the Beach, in order to determine why no court has found a judicial taking. Based on this analysis of the caselaw, this Comment suggests that finding a judicial taking is all but impossible. That conclusion does not mean that judicial takings doctrine has had no influence on property jurisprudence in the years since Stop the Beach, however. This Comment identifies three cases in which state courts have used the possibility of judicial takings as reasons not to make decisions that undercut property rights. In those cases, judicial takings doctrine is functioning as something akin to a canon of constitutional avoidance. If decided the other way, none of those three decisions would have avoided actions that would have amounted to judicial takings. This Comment thus concludes that judicial takings doctrine leads to worse outcomes in property law, and so, out of a concern for constitutional problems that never arise, courts reject decisions they would otherwise adopt.