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Preview: Reason Magazine - Topics > Property Rights

Property Rights



All Reason.com articles with the "Property Rights" tag.



Published: Wed, 18 Oct 2017 00:00:00 -0400

Last Build Date: Wed, 18 Oct 2017 04:05:38 -0400

 



Chicago Alderman Who Told Businessman to 'Come Back To Me On Your Knees' Sued for Abuse of Power

Thu, 12 Oct 2017 14:30:00 -0400

Chicago Alderman Proco Joe Moreno wanted to help a business that had contributed to his campaign coffers. So he told Brian Strauss, a firefighter and property owner, to rent his building to the business or suffer the consequences. When Strauss refused to comply, Moreno made good on his threats, downzoning Strauss's building and scuttling multiple attempts to sell the property. Strauss is now suing, arguing that Moreno's abuses of his aldermanic powers violate Strauss' rights under the Fifth and Fourteenth Amendments. According to Strauss's suit, Moreno's threats and eventual downzoning "were completely out of character with both the zoning and actual uses of the neighborhood," "were proposed in bad faith," and "were done for personal rather than a public interest". Strauss's trouble began in late 2015, when he tried to evict the Double Door Music Hall from a Wicker Park property his family had owned since the '60s. (The eviction was prompted by several lease violations.) Moreno, who had received more than $7,500 in campaign donations from Double Door's management, requested that Strauss let the business stay on. Strauss declined and began looking for another tenant. Then Moreno's gloves came off. "I'm tired of hearing about the sympathy of you and your family," the alderman reportedly told Strauss and his attorney at one meeting. "Double Door is going to be in that building, there will never be another tenant in there, there will never be another sign on that building." Over the coming months, Moreno—in meetings brokered and attended by staffers for Chicago Mayor Rahm Emanuel—tried to get Strauss to sell his building to Double Door for $7 million, despite its market value of nearly $10 million. When that failed, the alderman started introducing downzoning proposals for Strauss's property that would have made it off limits for most business uses. In June 2017, Moreno even tried to reclassify the building as a residential unit, which would prohibit practically all commercial uses. That failed, but in September the city council did pass a downzoning ordinance, which prevents Strauss from converting his property to a general restaurant, a bar, or even, ironically, its previous use as concert venue. In a very public, and very disturbing, encounter with Strauss, Moreno made clear his zoning changes were all about extracting concessions. "You can come back to me on your knees, which is going to happen," he raged. "It's gonna be an empty building with no income for you or your family." Other officials went along with this under the longstanding practice of "aldermanic privilege," which basically means that other aldermen don't interfere with their colleagues' zoning and regulatory practices in their own wards. Moreno's actions have taken their toll on Strauss's attempts to sell the building. Three sales have now fallen through, with developers citing the downzoning proposals as reasons for walking away. Strauss is now asking for $9.6 million in damages from those lost sales, saying that Moreno's "extreme and outrageous" conduct amounts to a taking of his property without due process of law. As Reason's Eric Boehm noted when this story surfaced in May, Moreno is not a big fan of property rights. He previously tried to prevent a Chick-Fil-A from opening in his ward because of the owners' views on gay marriage, and also attempted to block the construction of a Wal-Mart because it wasn't "a perfect fit for the area." Said Boehm: The rule of law requires that government officials have their authority held in check, specifically to prevent abuses like the ones that Chicago's civic system seems to encourage. Moreno is free to believe that Chick-fil-A's executives are wrong about gay marriage, and he's free to dislike shopping at Wal-Mart. He should not be able to use his position of authority to block those businesses from operating in his ward, and he certainly shouldn't be able to threaten property owners with targeted zoning changes if they don't kneel before him, as if he were some sort of feudal lord. Strauss agrees, telling[...]



Michigan Mayor Offers Seized Money as a Citizen Reward for Drug Snitching. What Could Go Wrong?

Wed, 04 Oct 2017 16:05:00 -0400

The mayor of Detroit's largest suburb is offering to spread the city's civil asset forfeiture funds around to citizens who squeal on their neighbors for dealing drugs. Jim Fouts, the mayor of Warren, Michigan, and Police Commissioner Bill Dwyer announced today a new program where citizens can earn $500 by turning in their neighbors. The Detroit News explains: "This program means all Warren residents will be the eyes and ears in our war against drug pushers," Fouts said in a statement. Dwyer said rewards will come from drug forfeiture funds that the police department uses to fight illegal drugs in the city. "I've never heard of another city doing something like this," he told The Detroit News in a phone interview. "In other words, we're taking funds from drug dealers to pay residents for information about other drug dealers. Taxpayers are not paying for this." That is not even remotely how it works. Michigan's asset forfeiture program has little oversight, a huge potential for abuse, and does not require alleged drug dealers even be convicted of a crime before the city can seize their money or assets. Law enforcement agencies in Michigan can potentially keep 100 percent of what they seize, creating significant financial incentives to accuse citizens of criminal conduct. For those reasons, the property rights-protecting analysts at the Institute for Justice graded Michigan a D- for the way it operates its funds. Police and mayors attempt to sell civil asset forfeiture as a way of funding government by sticking it to drug dealers, but that's not really what happens. Last year, Traverse City, Michigan, attempted to seize the home of a couple operating a medical marijuana dispensary without charging them with anything. The Detroit Free Press in 2015 highlighted several of cases just like the one in Traverse City. Saying "taxpayers are not paying" for asset forfeiture is simply not true. Law enforcement agencies across the state raked in $244 million between 2001 and 2013 without ever proving these people are "drug dealers," according to the Institute for Justice. This program in Warren only adds more twisted incentives. If police raid a property on the basis of these calls, there will be a need to justify the costs—meaning police will want to find some reason to bust the people there. And then, of course, they'll use asset forfeiture to try to take and keep the money and property of those people in order to keep this whole operation going. And imagine the prospect of a payday for feuding neighbors. You don't actually have to imagine. The Trump administration created a hotline for citizens to report crimes committed against them by illegal immigrants. A look through the logs of the calls they have been getting show people attempting to snitch on their neighbors and get them investigated often without any actual indication they were engaging in any crimes. Read what Splinter uncovered here.[...]



Does the Colorado River Have Rights?

Fri, 22 Sep 2017 14:00:00 -0400

"In a first-in-the-nation lawsuit filed in federal court, the Colorado River is asking for judicial recognition of itself as a 'person,' with rights of its own to exist and flourish." So declares a press release from the activist organization Deep Green Resistance. The lawsuit against Colorado's governor is being filed in federal district court by the Community Environmental Legal Defense Fund (CELDF), which says it "seeks a ruling that the Colorado River, and its ecosystem, possess certain rights, including the right to exist, flourish, evolve, regenerate, and restoration." In support of the legal theory that rivers have rights, the suit cites Supreme Court Justice William Douglas' famous dissent in Sierra Club v. Morton (1972). In that case, the Sierra Club sued to block the Disney company from building a ski resort at Mineral King in the Sequoia National Forest. The majority of the court ruled that the Sierra Club did not have legal standing—that is, that the group failed to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case. (As it happens, the ski resort was never built anyway.) In his dissent, Justice Douglas, with considerable legal poetry, argued: Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes. The corporation sole—a creature of ecclesiastical law—is an acceptable adversary and large fortunes ride on its cases. The ordinary corporation is a "person" for purposes of the adjudicatory processes, whether it represents proprietary, spiritual, aesthetic, or charitable causes. So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes—fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water—whether it be a fisherman, a canoeist, a zoologist, or a logger—must be able to speak for the values which the river represents and which are threatened with destruction. The CELDF also cites a recently enacted provision in the constitution of Ecuador that confers rights on nature: Nature, or Pachamama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes. All persons, communities, peoples and nations can call upon public authorities to enforce the rights of nature. Let's just say that the law pertaining to the use of water is complex. I personally prefer common law riparian rights as a way to govern streams, rivers, and lakes. Riparian water rights give landowners along a stream rights to an undiminished quantity and quality of water. Consider the 1913 case Whalen v. Union Bag & Paper, in which a New York Court of Appeals ruled that a million-dollar paper mill employing 500 people did not have the right to pollute the water flowing past Robert Whalen's 255-acre farm on Kayaderosseras Creek, near Albany, New York. The Court reasoned: Although the damage to the [farmer] may be slight as compared with the [paper mill's] expense of abating the condition, that is not a good reason for refusing an injunction. Neither courts of equity nor law can be guided by such a rule, for if followed to its logical conclusion it would deprive the poor litigant of his little property by giving it to those already rich. It did not matter how much money had been invested or how many jobs were at stake; the paper company had violated Whalen's right to an undimini[...]



2 Years After CBP Took His Truck Because of a Few Forgotten Bullets, Still No Hearing

Wed, 13 Sep 2017 14:45:00 -0400

Gerardo Serrano was on his way to visit his cousin in Mexico when Customs and Border Protection (CBP) agents at the border station in Eagle Pass, Texas, found a magazine containing five .380-caliber rounds in the center console of his pickup truck. Serrano, a U.S. citizen with a concealed-carry permit issued by Kentucky, said he did not realize the magazine was in the truck and offered to leave it behind as he continued on his journey. But as far as the CBP agents were concerned, those five cartridges made Serrano an international arms smuggler. Although he was never charged with a crime, the agents seized the truck, a 2014 Ford F-250. That was two years ago, and Serrano still has not been given a chance to challenge the still-pending civil forfeiture of his property. In a federal lawsuit filed last week, the Institute for Justice argues that property owners like Serrano have a constitutional right to a prompt hearing after a seizure, a right that CBP systematically violates. "Federal statutes do not provide for a prompt post-seizure hearing when property is seized for civil forfeiture by CBP, and CBP regularly fails to provide any kind of prompt post-seizure hearing," the complaint says. "Plaintiff has filed this suit to recover his property and to put that policy or practice to an end." In addition to the return of Serrano's truck and compensation for the costs he has incurred as a result of the seizure, the suit asks the court to certify a plaintiff class of similarly situated vehicle owners and order CBP to start respecting their due process rights. Serrano attracted CBP attention because he was creating a record of his trip to share with friends and relatives on social media and used his phone to take pictures of the border station. CBP prohibits unauthorized photography near ports of entry. (After the ACLU challenged that policy on First Amendment grounds in 2012, a federal judge in California ruled that the ban was justified by the agency's "interests in preserving the integrity of its sensitive border search techniques, law enforcement operations, and criminal investigations.") After seeing Serrano take pictures, a CBP agent pulled him out of his truck, handcuffed him, took his phone, and demanded the password, which he refused to give. When Serrano complained that his constitutional rights were being violated, the complaint says, the agent responded that he was "sick of hearing about your rights" and told Serrano "you have no rights here." In this context, the seizure of Serrano's truck looks a lot like retaliation for his uppity attitude. Upon discovering the ammunition, according to the complaint, an agent exclaimed, "We got him!" The agent who had handcuffed Serrano told him, "You're in big trouble now." Serrano explained that he had a Kentucky carry permit, which was respected in the states he had traversed on his way to the border (Tennessee, Arkansas, and Texas). Hence his inadvertent transportation of the handgun magazine had not violated any laws yet. Since he was still in the United States, he wondered, couldn't he just leave the magazine at the border station? Sure, the agents said, but you'll have to leave your truck too. Serrano opted not to pursue the administrative process for appealing a seizure, where the same agency that took the asset decides whether to keep it. Instead he paid a $3,805 bond (10 percent of the asset's value) so his case could be heard in federal court. But despite repeated inquiries, the case still has not been assigned to a federal prosecutor, let alone heard by a judge. According to the complaint, a CBP paralegal (one of the plaintiffs named in the suit) told Serrano "the attorneys who file forfeiture cases are very busy and cannot quickly process cases." The U.S. Court of Appeals for the 5th Circuit, which includes Texas, ruled in 1983 that a 13-month delay between the seizure of money and the filing of a forfeiture complaint (which precedes a hearing) violated the right to due process. "The tw[...]



New York Mayor to Property Owners: Drop Dead

Fri, 08 Sep 2017 12:45:00 -0400

It shouldn't come as surprise that New York Mayor Bill de Blasio, who campaigned on fighting income inequality and wants to tax the rich to pay for public transit improvements, has a fairly dim view of private property rights. But "dim" is apparently a bit of an understatement. De Blasio flat out does not believe in the right to private property. That's highlighted in its starkest terms in a New York piece out this week. Here is de Blasio's response when asked about efforts to fight income inequality: What's been hardest is the way our legal system is structured to favor private property. I think people all over this city, of every background, would like to have the city government be able to determine which building goes where, how high it will be, who gets to live in it, what the rent will be. I think there's a socialistic impulse, which I hear every day, in every kind of community, that they would like things to be planned in accordance to their needs. And I would, too. Unfortunately, what stands in the way of that is hundreds of years of history that have elevated property rights and wealth to the point that that's the reality that calls the tune on a lot of development.... Look, if I had my druthers, the city government would determine every single plot of land, how development would proceed. And there would be very stringent requirements around income levels and rents. That's a world I'd love to see, and I think what we have, in this city at least, are people who would love to have the New Deal back, on one level. They'd love to have a very, very powerful government, including a federal government, involved in directly addressing their day-to-day reality. Reason editor Katherine Mangu-Ward called de Blasio a perfect Ayn Rand villain for good cause, people! There are no doubt a number of people in urban environments who want exactly what de Blasio says. But what they really want is to control what other people do with their property, to make them match their vision of what their community should look like. And since no two people actually agree on what every single piece of property should look like, the decision-making role would actually fall to the government and de Blasio. That is clearly what he wants: He tries to sell it by invoking the "needs" of the "community," but government officials ultimately get to decide what those needs are and how to meet them. How does that work out in real life? Terribly, of course! Government officials are no more pure of heart than those wealthy property owners. In fact, they are often the wealthiest of property owners. When government takes control of property development, it's the poor and downtrodden who very frequently take it on the chin. Government control over property inherently creates a dynamic where the most influential and powerful constituencies decide what happens. It's a recipe for collusion between government and developers, and also for NIMBY behavior that keeps the poor from having access to housing and cheap retail and services. When government doesn't respect private property, you get situations like the one in Pleasant Hill in Charlestown, Indiana. There the mayor stands accused of colluding with developers to drive working-class citizens and retirees out of their homes so that the properties can be razed to build something bigger. The town has reportedly abused the code enforcement rules to saddle these people with fines and essentially force them to sell their homes. Imagine if the mayor could just decide to boot all these people out because he wants to build something bigger and better. That's the society De Blasio is openly calling for. Or come on over here to California, where wealthy homeowners abuse environmental regulations to stop more housing from being built. Basically, they're using the government's control over development to keep "undesirable" people—read: poor people or minorities—out of their neighborhoods. And they're not afrai[...]



Forfeiture Loot Corrupts Justice

Wed, 23 Aug 2017 00:01:00 -0400

In Ohio during the 1920s, people caught with "intoxicating liquors" could be tried by rural mayors, who were paid for each conviction and authorized to impose fines that were split between the village and the state. Four decades later, mayor's courts in Ohio were handling traffic cases, which did not reward the mayors directly but generated substantial income for their villages. According to the U.S. Supreme Court, both of these arrangements violated the right to due process, since the judges had a financial incentive to find people guilty. Civil asset forfeiture creates a similar problem, encouraging police and prosecutors to take property from innocent owners and turn a deaf ear to their objections. That is what happened to Rhonda Cox, whose pickup truck was seized in 2013 by Pinal County, Arizona, sheriff's deputies when they arrested her son for installing stolen parts in it. Cox argues that the forfeiture violated her right to due process, and last week a federal judge refused to dismiss her lawsuit, recognizing the constitutional concerns raised by a system that lets law enforcement agencies make money by confiscating assets they say are linked to crime. In Arizona, U.S. District Judge Diane Humetewa noted, the law enforcement agencies that initiate and complete a forfeiture get to keep all of the proceeds. Some agencies, such as the Arizona Department of Public Safety's bomb squad, SWAT team, and hazardous materials unit, are funded entirely by forfeitures, while others rely on them to pay for vehicles, equipment, overtime, retirement fund contributions, and image-building donations to local civic groups. According to Cox's complaint, Lando Voyles, who as Pinal County attorney approved the confiscation of her truck, even used forfeiture loot to pay for his home security system. This financial interest tends to make cops and prosecutors less than sympathetic to the rights of innocent property owners like Cox, who did not know her son had borrowed her truck, let alone that he was doing anything illegal with it. The deputies who took the truck said there was no way she'd ever get it back, and Voyles' office rejected her "petition for mitigation" out of hand, claiming (incorrectly) that she was not entitled to relief because she had purchased the truck for family use. Deputy Pinal County Attorney Craig Cameron also claimed, inconsistently, inaccurately, and irrelevantly, that Cox was a "straw buyer" for her son. "Rhonda was caught in a Kafkaesque predicament where, bizarrely, she bore the burden of proving that she was entitled to get the Truck back," her complaint notes. "The State did not have to prove that Rhonda did anything wrong—let alone criminal—in order to keep the Truck." Cox could not afford to take her challenge further, especially since the cost of a lawyer could easily have exceeded the $6,000 she paid for the truck. Under state law at the time, she also would have been on the hook for the government's legal expenses if she lost. The American Civil Liberties Union, which is representing Cox, notes that forfeitures in Pinal County frequently involve property worth less than $1,000, making legal challenges prohibitively expensive. That effectively means the agencies that stand to profit from a forfeiture are the first and final arbiters of whether it's justified. Even prosecutors understand the potential for corruption in this situation. A training presentation from the Arizona Prosecuting Attorneys Advisory Council, which Judge Humetewa quotes in her ruling, warns that "when your bosses can't find any money in their budget they get depressed," and "when they get depressed they tell you to start doing forfeiture cases." Playing off those jokey Direct TV ads about the hazards of cable, the downward spiral continues until cops "start seizing everything in sight," "screw things up," and "ruin forfeitures for all of us." Although the slide is supposed to be an admonition [...]



Jeff Sessions Lets Cops Be Robbers

Wed, 26 Jul 2017 00:01:00 -0400

Donald Trump made two things abundantly clear during a meeting with county sheriffs last February: He did not know what civil asset forfeiture was, and he wanted to see more of it. The president will get his wish thanks to a directive issued last week by Attorney General Jeff Sessions, who has a clearer idea of what civil forfeiture entails but is only slightly more sensitive to its potential for abuse. That potential is built into the very concept of civil forfeiture, which allows police to take property allegedly tied to crime without charging the owner. Worse, law enforcement agencies get to keep revenue generated by forfeitures they initiate, which gives them a financial incentive to target people based on the assets they own rather than the threat they pose. In theory, the government can forfeit a seized asset only after proving it is a tool or fruit of crime, typically drug trafficking. But the burden of proof is much lighter than in a criminal case, and it applies only if the owner challenges the seizure in court, which often costs more than the asset is worth. Recognizing how easily innocent people can lose cash, cars, and homes to money-hungry cops, two dozen states and the District of Columbia have reformed their forfeiture laws since 2014. The changes include mandating data collection and reporting, strengthening standards of proof, and requiring a criminal conviction before some or all forfeitures. By reviving federal "adoption" of forfeitures initiated by state or local agencies, Sessions is offering cops who chafe at these restrictions the option of ignoring them. Adoption, which Attorney General Eric Holder mostly eliminated in 2015, lets police and prosecutors evade state limits on forfeiture and keep up to 80 percent of the proceeds. Seven states prohibit or restrict such circumvention. But in the rest, cops who do not like reforms aimed at protecting innocent property owners from legalized theft can once again easily dodge them with help from the Justice Department. Although Sessions pays lip service to the need for safeguards, he argues that innocent owners are rare. "Over the last decade," he says, "four out of five administrative civil asset forfeitures filed by federal law enforcement agencies were never challenged in court." According to Sessions, that means only a "small minority of cases" involve people whose property was seized for questionable reasons. But since challenging a forfeiture is difficult and may be prohibitively expensive, the failure to do so is hardly an admission of guilt. Sessions says a state or local agency seeking federal adoption of a forfeiture will have to provide "information demonstrating that the seizure was justified by probable cause." But in practice probable cause may be little more than a hunch—e.g., you've got a lot of cash, so you must be a drug dealer. And given the obstacles to recovering seized property, such vague, unsubstantiated suspicions may be all the government needs to keep it. The Fifth Amendment Integrity Restoration (FAIR) Act, reintroduced by Sen. Rand Paul (R-Ky.) in March, would withdraw Sessions' invitation to forfeiture abuse by abolishing federal adoption along with the rest of the Justice Department's so-called Equitable Sharing Program, which includes loot grabbed in the course of joint operations. The FAIR Act, which has bipartisan support, also would strengthen the standard of proof in federal forfeiture cases, require the government to show that the owner of seized property consented or was willfully blind to its illegal use, give indigent owners a right to counsel, and assign forfeiture revenue to the general fund instead of the Justice Department. Reforms like these should be supported by anyone who believes forfeiture "has become a tool for unscrupulous law enforcement officials, acting without due process, to profit by destroying the livelihood of innocent individuals, ma[...]



Brickbat: Icky Azaleas

Mon, 10 Jul 2017 04:00:00 -0400

(image) For 30 years, Lexa King has cultivated the azaleas outside her Atlanta home. But someone recently made an anonymous complaint to city code enforcement. A code enforcement officer cited her for having an overgrown yard. She faces up to 60 days in jail and a $1,000 fine.




Supreme Court Deals Blow to Property Rights

Fri, 23 Jun 2017 14:45:00 -0400

When governments issue regulations that undermine the value of property, bureaucrats don't necessarily have to compensate property holders, the Supreme Court ruled Friday. The court voted 5-3, in Murr V. Wisconsin, a closely watched Fifth Amendment property rights case. The case arose from a dispute over two tiny parcels of land along the St. Croix River in western Wisconsin and morphed into a major property rights case that drew several western states into the debate before the court. Chief Justice John Roberts, in a scathing dissent, wrote that ruling was a significant blow for property rights and would give greater power to government bureaucrats to pass rules that diminish the value of property without having to compensate property owners under the Firth Amendment's Takings Clause. "Put simply, today's decision knocks the definition of 'private property' loose from its foundation on stable state law rules," Roberts wrote. The ruling "compromises the Takings Clause as a barrier between individuals and the press of the public interest." Donna Murr, in a statement provided by the Pacific Legal Foundation, the libertarian law firm that represented the family in the case, said her family was disappointed by the result. "It is our hope that property owners across the country will learn from our experience and not take their property rights for granted," Murr said. "Although the outcome was not what we had hoped for, we believe our case will demonstrate the importance of taking a stand and protecting property rights through the court system when necessary." In 2004, Murr and her siblings sought to sell one of two parcels of land that had been in the family for decades. Murr's parents bought the land in the 1960s, built a cabin on one parcel, and left the other parcel undeveloped as a long-term investment. The family attempted to sell the vacant parcel to pay for renovations to the cabin, but were prevented from doing so by regulations restricting the use of land along rivers like the St. Croix approved by the state in the 1980s, long after the purchase of both lots. Those regulations effectively gutted the value of the Murrs' property. The property was appraised at $400,000 before the Murrs tried to sell it. When the family came to the county, now the only eligible buyer, the county offered $40,000. The Murrs filed a lawsuit against the state and county, arguing that they should be compensated for the lost value of the property, arguing the Fifth Amendment of the U.S. Constitution guarantees governments must compensate property owners when land is seized or otherwise made un-useful for public purposes. To avoid liability in the case, the state and county told the Murrs they could combine the two parcels of land for regulatory purposes. This meant that even though the two pieces of land were separate and the Murr family paid taxes on them separately, the family would be unable to make a takings claim for one of the two parcels. In short, they could sell both lots together, but not one or the other. Lower courts agreed with the government interpretation and the Supreme Court on Friday upheld the court rulings. "Treating the lot in question as a single parcel is legitimate for purposes of this takings inquiry, and this supports the conclusion that no regulatory taking occurred here," Justice Anthony Kennedy wrote in the majority opinion. "They have not been deprived of all economically beneficial use of their property." Justices Stephen Breyer, Elena Kagan, Ruth Bader Ginsberg, and Sonia Sotomayor joined Kennedy in the majority opinion, while conservative justices Clarence Thomas and Samuel Alito joined Chief Justice John Roberts' dissent. The Supreme Court's newest member, Justice Neil Gorsuch, did not participate in the case. The ruling could have implications that go well beyond the 2.5 acres of land in Wisco[...]



L.A. Hotel Union Misleads About Airbnb, Hoping to Get Rid of Competition

Wed, 21 Jun 2017 08:00:00 -0400

In Los Angeles, influential hotel union Unite Here has joined with consumer advocacy groups to form the coalition Fairbnb, all in the name of fighting against Airbnb and the right of citizens to rent out rooms and houses to travelers. Coalition members flocked to city hall last week to push for draft rules that would restrict short-term rentals like Airbnb to 180 days and would allow hosts to rent out only their primary residences. City Council should take the accusations against Airbnb with a grain of salt. Unite Here charges Airbnb with setting up illegal hotels and taking huge chunks of housing off of L.A.'s already strained market—housing for tourists at the expense of locals. Further, they argue that regulations are necessary to protect hospitality workers' right to earn a living. Trying to pin the city's housing crisis on Airbnb is an effective marketing strategy for hotel unions. If their accusations are true, who would defend a business that makes L.A. more expensive for everyone? Rent in the city has increased by 32 percent since 2000 while real income has decreased by 3 percent. The crisis hits low-income Angelenos the hardest; 80 percent of them spend 50 percent of their income on housing. But Airbnb is not the cause of the problem. On Airbnb, there are 17,995 entire homes available for rent in Los Angeles. Even if every unit was filled with tourists every day of the year, this could hardly cause the city's housing crisis—studies estimate that the city needs 551,807 new units to meet low-income Angelenos' housing needs. The Airbnb occupancy rate in Los Angeles is only 25.4 percent, meaning that many of whole house short-term rentals are not totally off the market. They actually house locals for part of the year. Instead of exacerbating the housing crisis, Airbnb provides a lifeline for struggling Angelenos. Airbnb found that 38 percent of hosts are low- or middle-income residents with most using the income from hosting to pay household expenses—71 percent said Airbnb helped them stay in their homes. Hotel unions present themselves as champions of the working class, even as they work to prevent others from earning extra income. As reported in the Daily News, 21-year-old Yajayra Cerrato told City Council's Planning and Land Use Management Committee that long-term Airbnb rentals are a threat to hospitality workers: "Think about the people who work for housekeeping like my mother. For those six months that you guys host there, is she going to be unemployed?" That's far from the whole story. Airbnb supporters showed up in equal numbers to comment on the proposed rules. For every allegedly displaced hospitality worker, there is someone like 77 year-old Al Antonini, who told the L.A. Times that he relies on Airbnb revenue to pay his mortgage. Others told City Council that hosting on Airbnb helped pay off student loans. Furthermore, Cerrato is presenting the city and its citizens with a false choice. Antonini's income does not come at the expense of Cerrato's mother, and there are numbers to show it. Hotel occupancy declined by only 1 percent in 2017 and independent analysis concluded that competition from Airbnb has had a minimal impact on L.A. hotels. As summarized by an Airbnb spokesman, home-sharing attracts a different kind of traveler. Airbnb has brought $600 million in economic impacts and $13 million in tax revenue to the city. Innovations like Airbnb help locals and tourists alike. Regulations would benefit hotels only at the expense of hosts.[...]



A Spectacularly Stupid Idea: Governing Land as a Global Commons

Fri, 02 Jun 2017 14:31:00 -0400

"Land must be considered as a global commons—conceptually by researchers and legally by the international community," argues Felix Creutzig, a climate change economist at the Technical University of Berlin. He makes this perplexing claim in "Govern land as a global commons," an article in the current issue of Nature. Creutzig cites the arguments of the philosopher Mathias Risse, who Creutzig believes has "made a powerful case for humanity's collective ownership of the Earth." Let's briefly consider Risse's position. In his 2008 working paper "Original Ownership of the Earth," Risse begins with two intuitions: "First, the resources of the earth are valuable and necessary for all human activities to unfold, most importantly to secure survival; second, those resources have come into existence without human interference." There is a prior question that Risse (and Creutzig) must answer: What is a resource? Surely edible plants and meat animals count. And just as surely, our forager ancestors claimed and defended territories containing wild edibles against encroachment by other groups. They had no notion that land was collectively owned by all human beings. In any case, Risse's second claim is basically wrong. The vast majority of resources come into existence as a result of what he is pleased to call "human interference." As Creutzig and Risse both note, the 17th century British philosopher John Locke argued that before the rise of civilization, land and natural resources were notionally held in common by mankind. They do not consider deeply another of Locke's arguments: that without the application of human ingenuity, "nature and the earth furnished only the almost worthless materials." Only with the development of private property rights and the rule of law to defend them did nature's worthless materials become useful and valuable. As Locke explained, a landowner has a strong incentive to increase the productivity of his land. By intensively cultivating it, he produces "a greater plenty of the conveniencies of life from ten acres, than he could have from an hundred left to nature, [and] may truly be said to give ninety acres to mankind." Locke also wrote that a privately owned cultivated acre in Britain produces 1,000 times more value than an uncultivated acre left in the commons in America. The same is true for other natural resources. For example, as I have pointed out elsewhere, a deposit of copper is just a bunch of rocks without the know-how to mine, mill, refine, shape, ship, and market it. Petroleum was a nuisance until Edwin Drake figured out in 1859 how to drill for it and refine it into lamp oil. In any case, Creutzig's model for global land governance is to adopt international agreements like the Antarctic Treaty, the Law of the Sea, and, yes, the Paris Agreement on climate change. This is exactly backwards: To the extent that those pacts are needed, it's because they deal with unowned, open-access commons—Antarctica, the oceans, the atmosphere. No treaties are needed when formerly open-access commons have been enclosed and protected by secure property rights. Creutzig does reassure us that "private property will remain protected with the common ownership of global land." But he doesn't appear to really mean that. "Land-use rights can be assigned for a limited period," he suggests. He then notes, with apparent approval, that "Chinese property law limits them to 40, 50 or 70 years." Creutzig doesn't just favor global common ownership; he wants what amounts to global zoning. Who would be the zoning board? The United Nations, of course. "The United Nations' Sustainable Development Goals...don't call explicitly for global coordination of land uses," Cruetzig concedes. But he notes hopefully that the first steps toward such U.N.-led coordination[...]



Local Officials Are Coming for Your Garden

Sat, 13 May 2017 09:00:00 -0400

With spring in bloom, gardening season is underway across the country. That means lettuces and herbs, tomatoes and carrots. But it also means local regulatory busybodies are hard at work in many parts of the country making sure some gardeners' toughest fights this season won't be against drought, weeds, and non-human pests. In Columbiana, Ohio, for example, the city council has proposed to amend existing law to allow residential gardens in the city. Yay? Nope. Residents are crying foul. They call the measure "just another effort on the city's part to restrict their rights." Residents' ire seems justified. The initial amendment proposed by the city council would have legalized gardens, but limited them to backyards only. Columbiana also recently began enforcing a 1974 law prohibiting the keeping of chickens and other backyard livestock. And then there's this jewel: "The city had no laws pertaining to residential gardens, which means they were technically not allowed," reports the local Salem News. "According to the city's laws, if something is not permitted it is prohibited." If that sounds like a local paper misreading the law, think again. "Currently, our ordinances state that if you do not see it specifically written, then you are not technically allowed to have it," says city councilor Crystal Siembida Boggs, who criticizes the rules as "vague." That's really about the best thing someone can say about such a law. Gardeners are under attack from laws like these across the country. I recount many instances of gardeners facing physical removal of their gardens, fines, and even threats of jail time in my recent book, Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable. In 2013, in another case I detail in my book, the Institute for Justice sued the city of Miami Shores, Florida, on behalf of a local couple who the city had ordered—under threat of stiff fines—to rip up the front-yard garden they'd tended for years. A federal state judge upheld the law. "The court finds that the prohibition of vegetable gardens except in the back yards is rationally related to Miami Shores' legitimate interest in promoting and maintaining aesthetics," the judge wrote in his ruling. The plaintiffs appealed to the U.S. Court of Appeals for the 11th Circuit. In another instance I detail in my book, officials in Tulsa, Oklahoma, entered resident Denise Morrison's front yard without her permission and ripped out her edible garden. "Morrison, who was unemployed at the time, was using the foods she grew to sustain herself during a difficult period," I write. "Code officers, on the other hand, were enforcing a city ordinance that said plants cannot be higher than twelve inches 'unless they're used for human consumption.'" Morrison's garden, I note, in fact contained many plants fit for human consumption, including strawberries and spearmint. Tulsa officials didn't care. Morrison sued the city in federal court. The court threw out her lawsuit, arguing she'd been given proper notice by the city. Oklahoma lawmakers recently adopted a law to promote urban agriculture as part of an effort to combat poor access to fresh produce in many cities and towns. The law creates a fund to dole out grants to benefit people in low-income areas—including Tulsa. Thomas Boxley from University of Oklahoma, who runs a school garden project in an impoverished part of Tulsa and who no doubt is doing good work, says his project helps "to show the youth that you can begin to grow some of your food needs right in your backyard." You can, unless Tulsa says you can't. It's hard to see this grant program as anything but a slap in the face to people like Denise Morrison who've been told they can't grow their own food because things [...]



The Prospects for Progress in Africa

Tue, 09 May 2017 07:00:00 -0400

Recently, I came across a stunning statistic. By mid-century, there will be more Nigerians than Americans. Nigeria is one of the world's worst run countries and its unemployment rate hovers around 24 percent. A dysfunctional country and an exploding population do not mix very well. What is true of Nigeria is also true of large parts of the African continent. As we speak, one out of seven inhabitants of the planet lives in Africa. By mid-century, one in four people on Earth will be African. If the current trends continue, somewhere between one third and one half of the world's population will live in Africa by 2100. African unemployment is not easy to guesstimate, but South Africa, the continent's economic powerhouse, suffers from an unemployment rate of 27 percent. How, I wonder, are all of these people going to make a living? This column is, generally speaking, the very definition of optimism. I am, for example, largely sanguine about the impact of automation on America's unemployment rate. Our country has lived through profound economic changes in the past and risen to the challenge. At the time of the American Revolution, for example, over 90 percent of Americans worked in agriculture. As late as 1900, 40 percent of Americans did so. Today, 1.5 percent do, while feeding the country as well as much of the rest of the world too. All that surplus labor was soaked up by manufacturing and, later, services. Adjusted for population growth, a record number of Americans today has a job, dislocation emanating from the IT revolution notwithstanding. Relatively speaking, the United States is well placed to deal with automation, robotics, and perhaps even artificial intelligence. Our state-run primary and secondary education systems sucks, but American universities are second to none and the number of college-educated Americans is at an all-time high. We have a decent legal system and business environment. The welfare state, while technically bankrupt, can provide a cushion for the temporarily unemployed in extremis (and after cuts elsewhere). That does not mean that America does not need reforms, hence the "relatively speaking" at the start of this paragraph. But we are in better shape to face the challenges of the future than many other nations. Unfortunately that is not true of Africa. The African legal system, the African business environment, and all levels of Africa's state-provided education are, compared to the rest of the world, abysmal. The continent is far too poor to afford even a rudimentary social welfare net. So what are the hundreds of millions of people, mostly young, to do in the coming decades? Much of Asia has escaped from poverty through labor-intensive and export-oriented industrialization. Africa, by contrast, is actually de-industrializing. This is not happening because of free trade, since Africa remains the least economically free region in the world. Rather, African workers cannot compete with much more productive Asian labor due to a number of factors that include lack of decent education and skills, bad financial and transport infrastructure, Byzantine bureaucracy and heavy regulation, and so on. To make matters worse, automation and robotics are bound to make Africa's workers even less competitive in the future. Simply put, it is difficult to see how the Asian route out of poverty can be repeated on the African continent. And in order to leapfrog Asian-style industrialization into an American-style modern economy, Africa would need well-functioning rule of law, property rights, and a welcoming business environment. It has none of those. That leaves agriculture, but even here the outlook is not promising. The continent is rapidly urbanizing and few Africans see their future in fa[...]



SCOTUS Says States Have No Right to Money Taken Based on Overturned Convictions

Fri, 21 Apr 2017 10:15:00 -0400

This week the Supreme Court ruled that Colorado has no right to keep fines, fees, court costs, and restitution it extracts from criminal defendants whose convictions are later reversed. By forcing people to prove their innocence before they can get back property that is rightly theirs, the Court said, Colorado has been violating the 14th Amendment's guarantee of due process. The Institute for Justice, which filed a brief in the case emphasizing that the presumption of innocence is an essential aspect of due process, makes a compelling argument that civil asset forfeiture routinely violates that principle. The Court's decision in Nelson v. Colorado, which was joined by seven justices (Clarence Thomas dissented, and Neil Gorsuch joined the Court too recently to participate), came in response to challenges by Shannon Nelson and Louis Madden, who tried to get back money the state took from them based on convictions that were overturned. Nelson, who in 2006 was convicted of two felonies and three misdemeanors based on allegations that she had abused her four children, was sentenced to 20 years in prison and ordered to pay $8,193 in court costs, fees, and restitution, $702 of which was taken from her inmate account before she won a new trial and was acquitted. Madden, who in 2005 was convicted of two felonies based on allegations that he had patronized an underaged prostitute, received an indeterminate prison sentence and was ordered to pay $4,413 in costs, fees, and restitution, $1,978 of which was collected before his convictions were reversed on appeal and the state decided not to prosecute him again. Nelson and Madden got a sympathetic hearing at the Colorado Court of Appeals, which concluded that they had a right to refunds. But the Colorado Supreme Court disagreed, saying they could get their money back only if they followed the process prescribed by Colorado's Compensation for Certain Exonerated Persons statute, a.k.a. the Exoneration Act. That law requires exonerated defendants seeking compensation to file a lawsuit and prove their innocence by clear and convincing evidence. That procedure is prohibitively expensive for people seeking the return of modest sums, and it is no help at all for people convicted of misdemeanors, which are not covered by the law. More fundamentally, the U.S. Supreme Court says in an opinion by Justice Ruth Bader Ginsburg, the Exoneration Act is inappropriate for people who are seeking not compensation for wrongful convictions but the return of money the state took based on legal determinations that are no longer valid. "Colorado may not retain funds taken from Nelson and Madden solely because of their now-invalidated convictions, for Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions," Ginsburg writes. "To get their money back, defendants should not be saddled with any proof burden. Instead...they are entitled to be presumed innocent." That was true before Nelson and Madden were tried, Ginsburg observes, and it is true again now that their convictions have been nullified. The parallels with civil asset forfeiture are pretty clear. In both cases, the government takes someone's property based on allegations of criminal activity, and in both cases the owners are forced to prove their innocence if they want to get their property back. Nelson v. Colorado "upholds the fundamental principle that Americans are entitled to be presumed innocent until proven otherwise," says Institute for Justice attorney Robert Everett Johnson. "The Court expressly rejected Colorado's argument that the 'presumption of innocence applies only at criminal trials,' explaining that the government 'may not presume a[...]



Maine Lawmaker Targets Foragers on Private Property

Sat, 08 Apr 2017 08:00:00 -0400

When I was a young kid, and I'd hop my neighbor's fence to pluck a handful of Concord grapes that grew on a vine in their yard, I knew three things to be true. First, the grapes tasted fantastic. They were much more plump and earthy than what passes for grapes at the grocery—and their seeds made for the perfect projectile to spit at friends. Second, I wasn't doing any harm at all to the neighbor's grapevine by picking a few ripe grapes. Third, I was trespassing—and in a manner that differed markedly from the occasional going to retrieve a foul ball sort of trespass. I was trespassing and—because I never asked my neighbor's permission, at least until I was older—I was also stealing their grapes. I don't think I was a particularly perceptive child, but what a kid who spat grape seeds at his friends knew in the early 1980s still seems like a pretty good rule. Taking food from other people's property—just like taking their lawn gnome, ladder, or chainsaw—is theft. As I later learned, the right to exclude others from one's property is a fundamental feature of property ownership and a central concept within property law. You'd think the law would embrace this common-sense thinking. But it doesn't always. And the issue isn't as cut-and-dried as my 7-year-old mind made it out to be, as a current controversy makes clear. In Maine, a proposed law would require foragers—those looking to harvest blueberries, mushrooms, and other wild foods—to obtain permission from the property owner before collecting the food. The bill, An Act To Prohibit Foraging on Private Land without Permission, would amend an existing law that serves primarily to prohibit people from going onto private property to chop down and transport Christmas trees. Under the proposed law, three convictions in a 10-year period would brand the violator a felon. One camp—the one that proposed the bill—echoes my own younger beliefs about foraging on private property. "This, to me, is a no-brainer," State Sen. Thomas Saviello told the Bangor Daily News. "If you own the land, it's not my right to go onto your property and take something that belongs to you." State Sen. Saviello proposed the bill after a pair of constituents complained to him that they'd gone to harvest wild foods on their property but found they'd been beaten to the punch. Opponents of the bill argue the rules are overreaching, and would put an end to a Maine way of life. In 2013, when Maine lawmakers floated a similar bill to require hunters and foragers to obtain permission to hunt and forage on private land, the outrage was palpable. "All of the untouched, seemingly forgotten woods of Maine will instantly become off limits until all private landowners are identified, contacted, and hassled for their permission on a slip of paper," wrote Sam Hill, in an op-ed. "Seeking unposted land will no longer be enough for the law-abiding hunter; the local sportsman will have to do pre-season office work, collecting and consolidating the dozens of documents he will have to have in his possession in order to avoid becoming a criminal in the upcoming season. Does this sound like Maine?" Hill argues instead for continuing the status quo: giving property owners the option to post conspicuous signs on their property boundaries warning that they do not permit foraging or hunting. Posting allows people to "easily access unposted private property with the informal permission of the landowner. Among the beneficiaries of this tradition—not always adhered to in other parts of the country—are snowmobilers, hunters, canoers, fishermen, cross-country skiers and hikers." Posting places an affirmative burden on landowners to exclude hun[...]