Friday, August 9, 2013

On the Use and Abuse of Overflight Column Doctrine

Readers might be interested in a new paper from George Mason's Eric Claeys on property rights and overflights. From the abstract:

Many scholars writing on property or intellectual property policy assume that, when commercial aviation became feasible, the ad coelum maxim applied so literally that any airplane automatically trespassed on the air columns above lots of land beneath its flight path. The ad coelum maxim alienated property doctrine from sensible policies, these assumptions continue, and this disjunction was not fixed until courts reinvigorated property doctrine with new policies in the 1930s and 1940s.

This Article has two goals. The first is to show that this portrait of overflight litigation is misleading. In the watershed overflight cases, jurists took for granted that legal “property” has a built-in normative commitment to one fundamental policy goal — that property rights be structured to facilitate all stakeholders being allowed to use those resources concurrently and beneficially, each for his own individual goals. So in overflight cases, jurists revised the scope of the ad coelum maxim to make sure that the maxim cohered with sound policies already fundamental to property law. The maxim confirmed landowners’ control over the low-altitude air space reasonably necessary to their beneficial uses of their lots. But the maxim was found not to apply to high-altitude airspace, because it seemed likely to impede all citizens’ concurrent interests in using airspace as a commons for air travel and transport.

The second goal is to shed light on why contemporary scholarship portrays the ad coelum maxim and the transition in aerial trespass law so inaccurately. The conventional portrait of the overflight transition provides a tempting narrative helping to make traditional rights of exclusive control seem overbroad. By process of elimination, the “ad coelum fable” helps make seem more attractive alternate property strategies, especially commons approaches and “liability rule” forced transfers of use rights. Although such approaches may be desirable in some situations, they should be judged on their normative merits — not by setting up and then ridiculing straw-man portraits of alternatives. This Article illustrates with contemporary scholarship on eminent domain and urban redevelopment, and on the Google Books dispute.  

August 9, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, August 8, 2013

Thursday Links

A few of this week's most important aviation law stories:

  • The latest edition of The Economist has an article on the primary causes of airline delays in China.
  • A claim has been filed in U.S. Bankruptcy Court alleging that the proposed U.S. Airways-American Airlines merger will violate federal antitrust law. (via the Dallas Morning News' Airline Biz Blog)
  • The European Commission formally announced its approval of the U.S.-American merger.


August 8, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 6, 2013

U.S., EU at Odds Over NextGen, SESAR Timelines

Today's Wall Street Journal reports that the FAA and the European Commission are currently at an impasse regarding implementation plans for air traffic control modernization. Both the U.S. and the EU are advancing slowly toward major overhauls of their air navigation systems, replacing radar with satellite-based technology. One of the earliest planned changes involves data communication between pilots and air traffic controllers. The EU officials prefer rolling out a more limited version of the technology at an earlier date, adding services in subsequent years. The FAA's preferred approach is to delay the initial upgrades in order to incorporate all of the data communication changes simultaneously. The importance of the transatlantic market to U.S. and European carriers makes technological synchronization imperative. 

August 6, 2013 | Permalink | Comments (0) | TrackBack (0)