Monday, October 5, 2015
Bret Wells (Houston) has posted The Dominant Mineral Estate in the Horizontal Well Context: Time to Extend Moser Horizontally (Houston Law Review) on SSRN. Here's the abstract:
Today’s horizontal wells are radically different in legally relevant ways from traditional vertical wells. Horizontal wells are now being drilled with a horizontal drainhole extending more than a mile away from the drill site. These horizontal wells often have multi-stage completions that allow operators to obtain production from multiple tracts traversed by the horizontal wellbore. From a single surface location, a horizontal well can be fractured in more than twenty-five stages and require the use of up to six million gallons of water per horizontal well. Thus, unlike vertical wells, the surface well site for today’s horizontal wells can concentrate numerous separate horizontal wells onto one well site location. Each of these horizontal wells that are concentrated onto this single surface well site in turn can produce from multiple different production points including off-tract production points that are horizontally displaced a great distance away from the surface well site. The servicing work at this concentrated surface well site location, including the handling of millions of gallons of flow-back waste water from the multi-stage hydraulic fracturing required to complete each of these horizontal wells, often is more intensive at this concentrated well site location than what was typically required at a surface site that possessed only a single vertical well drilled in a conventional formation. The Texas Supreme Court signaled in Key Operating & Equipment, Inc. v. Hegar that it is willing to reformulate historic doctrines to better address surface usage issues. As a result, given the Texas Supreme Court’s recent statements in Key Operating and Equipment, Inc. v. Hegar, the explosive growth in horizontal drilling in unconventional shale formations, and the Texas Supreme Court’s historic willingness to reformulate historic oil and gas doctrines (as evidenced by its opinion in Coastal Oil & Gas v. Garza) to ensure that justice and sound public policy outcomes are achieved, it is appropriate to re-examine the doctrine of the dominant mineral estate to ensure that the manner of its application in the horizontal well context promotes the state’s public policy goals of ensuring the efficient development of the state’s finite natural resources while, at the same time, affording equitable outcomes to surface owners burdened by these on-site horizontal drilling activities. To this end, in order to better achieve sound public policy outcomes while providing an equitable outcome to surface owners, this Article proposes a new common law principle for horizontal wells and argues that the Texas Supreme Court should adopt it.
Eyal Benvenisti (Tel Aviv) has posted Sovereignty and the Politics of Property on SSRN. Here's the abstract:
When economic markets became global at the end of the Cold War, so did the political markets: property rights increasingly became defined by international agreements, by decisions of international organizations, and by the exercise of “low politics” in foreign, weaker states. The global political markets were dominated by the executive branches of a handful of relatively strong states that, in turn, were responsive to the “low politics” of special interests. The high transaction costs of cooperation among diffuse owners inhibited the parallel rise of “high politics” at the global level. The skewed global political market for property continues to favor special interests, but there are budding attempts to reclaim the space for “high politics” by national regulators and courts. Current negotiations over the so-called “Mega Regional” agreements between the U.S. and its trading partners will, if successful, nip these buds as they render certain property rights almost immune to the subsequent challenges of high politics.
Friday, October 2, 2015
Kerry Klein discusses the end of the Land and Water Conservation Fund:
For three years, conservation groups have been warning lawmakers about the expiration of the Land and Water Conservation Fund, a program that provides grants to buy up private land and make it available to the public. Since President Johnson signed it into law in 1964, the LWCF has pumped almost $17 billion into federal, state, and local parks. It has protected more than 500 million acres of land, ranging from neighborhood playgrounds to dramatic basalt cliffs in the Columbia River Gorge National Scenic Area. The program also paid for almost two-thirds of the Appalachian Trail. The LWCF did all this without costing taxpayers a dime: It’s funded entirely by royalties from the offshore oil and gas industry, a symmetry that conservation advocates have lauded.
But members of Congress who oppose the program’s renewal say the LWCF prioritizes federal projects too much. Rep. Rob Bishop, a Republican from Utah who chairs the House Natural Resources Committee, is one such critic. “Under my chairmanship, the status quo will be challenged,” he wrote in a statement last week. “Any reauthorization of LWCF will, among other improvements, prioritize local communities as originally intended.”
Eduardo Penalver has a very thoughtful review of Ilya Somin's new book, The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain:
In light of the political ambivalence of the redevelopment takings issue, perhaps it is not surprising that I find a great deal to like in Somin’s book. It is both thoughtful and scholarly. Somin avoids the rhetorical excess characterized by a great deal of the popular commentary on Kelo. His bottom line is that, even though the case was consistent with longstanding precedent, it was wrongly decided because the earlier cases (and therefore Kelo as well) deviate from the original meaning of the Takings Clause. More specifically, because the Takings Clause is understood to apply against the states only through “incorporation” into the Due Process Clause of the Fourteenth Amendment, it deviates from the original meaning of the Takings Clause at the time of the Fourteenth Amendment’s ratification.
Setting aside debates about the merits of originalism itself (and the puzzle of the originalist status of incorporation doctrine), the problem for Somin’s argument, as he frankly acknowledges, is that there is very little evidence concerning what the original public meaning of the Takings Clause actually was in the late nineteenth century.
From here, Penalver's review really digs into Somin's view of property rights and his brand of libertarianism. Worth reading.
Amnon Lehavi (ICH - Radzyner) has posted Property and Secrecy on SSRN. Here's the abstract:
Real estate ownership is conventionally viewed as a clear matter of public record. Yet purchasers of real estate are increasingly employing legal techniques to preserve their anonymity by registering their properties through trustees or opaque shell companies. This turn of events calls for delineating the appropriate boundaries of secrecy in property.
The Article identifies primary contexts in which the issue of secrecy comes up in the law, including in financial and proprietary settings, such as secret trusts or undisclosed accumulation of shares in public corporations. It then underscores the unique features of secrecy in real estate. It offers an innovative analysis of the ways in which anonymous property holdings might generate externalities for various types of stakeholders, from central and local governments up to neighboring property owners in both their individual and collective capacities, such as in a homeowner association. The analysis establishes normative criteria for requiring property owners to disclose relevant details. It calls, however, to distinguish between a duty to provide information and the operative results of such disclosure in regard to interested parties’ capacity to act on such information.
This Article argues that, somewhat counter-intuitively, an elaborate discussion of the proper limits to the interest in secrecy would challenge prevailing forms of exclusion and other types of defensive or offensive tactics against “unwelcomed neighbors,” whenever such practices have no normative merit. The discourse on secret real estate holdings would therefore shed broader light on the underlying societal features of ownership.
Danaya Wright (Florida) has posted Doing a Double Take: Rail-Trail Takings Litigation in the Post-Brandt Trust Era (Vermont Law Review) on SSRN. Here's the abstract:
After providing a brief explanation of railroad development, railbanking, the takings cases, and the Brandt Trust decision, this Article will explore the implications of each of these three legal issues at the heart of the takings disputes. What makes the decision in Marvin M. Brandt Revocable Trust v. United States particularly disappointing is not that the Court came to the wrong conclusion in its interpretation of the railroad’s interest in federally granted railroad rights of way (“FGROWs”) granted pursuant to the 1875 General Railroad Right of Way Act, but that its wrong interpretation adds all of the 1875 Act FGROW lands to the class of potential takings cases that already suffer serious legal and logical infirmities. The Court’s hasty decision simply compounds the disastrous effects of the Court of Federal Claims’ already disastrous takings jurisprudence in this area.
Wednesday, September 30, 2015
Call for Papers for Association for Law, Property & Society 7th Annual Meeting
Queen’s University Belfast, Belfast, Northern Ireland, United Kingdom May 20–21, 2016
The Association for Law, Property & Society (ALPS) is a scholarly organization for those engaged in scholarship on all aspects of property law and society. Its annual meeting brings together scholars from different disciplines to discuss their work and to foster dialogue among those working in property law, policy, and theory. Prior meetings have averaged approximately 150 participants from across the globe. ALPS will hold its 7th meeting at Queen’s University Belfast in Belfast, Northern Ireland, United Kingdom on May 20-21, 2016. An optional field-trip and opening reception are planned for the afternoon of May 19.
Registration and Submission Instructions
Submissions on any subject related to property law are welcome. ALPS has a strong commitment to international and interdisciplinary diversity, and paper topics reflecting that commitment are encouraged.
ALPS accepts both individual paper submissions and proposals for fully formed panels (usually 3 to 5 presenters). Submissions may be for full paper drafts or early works-in-progress. Submissions should include an abstract of no more than 250 words that indicates the name of the submitting scholar, the scholar’s institution, and an email contact for the scholar. If submitting a fully formed panel, please insure that an abstract for each paper is included in the submission and that each abstract clearly identifies the fully formed panel the paper is a part of.
Registration and paper/panel submission information is available at
The deadline for submitting papers and panels is February 1, 2016, but registration for the conference will continue to be available after that date.
A discounted early registration rate of £110 (GBP) is available until February 1, 2016. After that date, the registration rate is £150 (GBP). The registration rate for full-time students (JD, PhD, or other program) is £30 (GBP).
ALPS will notify authors and panel proposers of acceptance of their individual submissions or proposed panel on a rolling basis, generally within three weeks after the date of submission.
After the submission deadline of February 1, 2016, ALPS will thematically group accepted papers and panels. Concurrent panels will be held on both days of the conference with each panel session lasting approximately 90 minutes and including both individual presentations and time for questions from the audience.
Please direct all inquiries to email@example.com.
Ann Eisenberg (West Virginia) has posted Land Shark at the Door? Why and How States Should Regulate Landmen (Fordham Environmental Law Journal) on SSRN. Here's the abstract:
This Article examines principles of fairness in bargaining as they apply to the “landman” profession — a largely ignored issue which rests at the intersection of the pressing matters of income inequality and energy development. Landmen have been the middlemen between energy companies and landowners for over a century; they negotiate high-stakes financial transactions and have gained notoriety for unethical conduct, yet they are generally unregulated. In this Article, I argue that this laissez-faire regime is inconsistent with the thrust of modern U.S. law. Specifically, I look to professions with responsibilities comparable to landmen’s, including realtors, lenders, and brokers, and argue that consistent themes emerge across realtor-buyer, lender-borrower, broker-buyer, and landman-landowner relationships — call them, respectively, Party A (realtor, lender, broker, landman) and Party B (buyer, borrower, buyer, landowner). All have issues with Party B’s potential for confusion as to whether Party A is serving her interests; potential conflicts of interest on the part of Party A, such as financial incentives to steer Party B toward something risky; information asymmetries that favor Party A, and Party A’s potential to manipulate Party B through omissions or misrepresentations; and Party B being unrepresented in a complex and potentially hazardous transaction with serious personal ramifications. Yet, regulations applicable to the other professions are stricter than any standards applicable to landmen. Although the law has traditionally not intervened into bargaining processes, intervention has tended to be stronger where one party is perceived as patently weaker. The appropriateness of regulating landmen thus rests not only in the moral imperative to prevent exploitation — such as the mass land dispossession that landmen are known to have facilitated — and in the imperative to manage energy development responsibly, but also in the law’s stronger willingness to intervene into comparable bargaining scenarios. This Article also reviews the few existing regulations governing landmen and attempted reforms, and proposes elements that could be included in state-level legislative regimes governing landmen.
Jane Baron (Temple) has posted Irresolute Testators, Clear and Convincing Wills Law (Washington and Lee Law Review). Here's the abstract:
Controversial recent wills law reforms, embodied in new provisions of both the Uniform Probate Code and the Restatement of Property, excuse so-called “harmless errors” in will execution and permit judicial correction of erroneous terms in a will or trust. Both reforms pose evidentiary dangers, as proof of the error must come from outside the attested instrument and will be offered after the testator’s death. To respond to this concern, both the error and the testator’s true intent must be established by “clear and convincing” evidence.
This article is the first to examine how courts have applied the clear and convincing evidence standard to these important reforms of wills law. In practice, the clear and convincing evidence standard provides less evidentiary protection than its proponents expected. More importantly, judicial struggles with the clear and convincing evidence standard expose a deep fissure in the very concept of testamentary freedom.
The reforms assume — as does the Wills Act itself — a fully-formed, fixed set of choices that the testator has sought to express in his will, choices made by a conventionally rational choosing testamentary self for whom wills rules are a means for furthering self-determined ends. This conventionally-rational testator makes only innocent, inconsequential errors. Many of the testators in the actual cases, however, display only bounded rationality. Their errors are not simple accidental snafus. While the reforms contemplate correction only of the technical, innocuous expression or execution errors made by self-reliant, choosing testamentary selves, at least some courts care also about the more complicated errors made by vulnerable, irresolute testamentary selves. These courts push against the reforms’ boundaries. The clear and convincing evidence standard has not and will not function as a serious limit on mistake correction because it fails to reckon with both visions of testamentary freedom.
Monday, September 28, 2015
Do investments in sidewalks and other pedestrian-oriented infrastructure pay off for cities? According to two professors of landscape architecture at Texas A&M, sidewalk investments only lead to higher property values and higher property taxes if they're deployed in neighborhoods that are already walkable:
We found that the highest premiums for walkability are in the most walkable neighborhoods: a 1 percent increase in walkability yielded a $1,329 increase in property values; a 1 percent increase in sidewalk density generated a $785 increase in property values. Homes in neighborhoods that are at least somewhat walkable and very walkable also experienced premium increases, although correspondingly less. In contrast, increasing walkability and sidewalks in car-dependent neighborhoods did not have any significant impact on property values. Therefore, it is likely that an investment in sidewalks and neighborhood amenities will yield a greater home price increase in a walkable neighborhood than in a car-dependent neighborhood.
John Ragsdale (UMKC) has posted Sacred in the City: The Huron Indian Cemetery and the Preservation Laws on SSRN. Here's the abstract:
The Huron Indian Cemetery sits on a hill above the confluence of the Missouri and Kansas Rivers. It is several acres of predominant green, with grass, mature trees, and modest, weathered grave stones, surrounded by the sterile concrete of a struggling Midwestern city. Desultory businesses, colorless governmental offices, a casino, and strong evidence of poverty and vandalism lap at the shores of the small sanctuary. Yet despite the drab and essential joylessness of the encircling faded modernity, the cemetery holds a surprising sense of peace and even timelessness. The serenity may seem incongruous, not only because of the tawdry surroundings, but also because of the cemetery’s chaotic history as a center of numerous legal and economic conflicts. This article will focus on the story of endurance and on the reciprocating feelings inspired by and invested in this unique burial place. It will deal with the general, perhaps inevitable, tension between the sacred and the profane – the clash between the emotion, solemnity, and repose of a spiritual site, the transformative calculations of economic and political expediency and the law that may bridge that gap.
Nicholas Blomley (Simon Fraser) has posted The Right to Not Be Excluded: Common Property and the Struggle to Stay Put (Book Chapter) on SSRN. Here's the abstract:
A chapter in a forthcoming book on commons, this paper draws from CB Macpherson's concept of common property as the right to not be excluded in order to make sense of the enduring and heroic struggle in inner-city Vancouver against gentrification-induced displacement.
Friday, September 25, 2015
This is one of the stranger disputes I've stumbled upon:
With nearly six figures pumped into his care and training, Beau Lemon, a bichon frisé from Minnesota, rose through the dog show ranks to become the second best of his breed in the nation. . . . When he retired from the show ring in 2012 at age 3, he was expected to breed with females until he turned 10 in hopes he’d pass along his legacy.
But that was cut short, owners Mary and John Wangsness alleged in a lawsuit filed in Ramsey County, when Beau’s breeder had the then-4-year-old dog neutered in July 2013 without their knowledge.
The nasty legal dispute between Mary and John Wangsness and Beau’s breeder, Vickie Halstead, has played out in court for about a year. The Wangsnesses alleged in the suit that Halstead acted in “vengeance” by neutering Beau because they had tried to breed him twice to a female dog, Cha Cha, without obtaining Halstead’s approval, which was required in a sales contract. (Mary Wangsness had wanted a puppy from Beau.)
The suit seeks more than $50,000 in damages, but there’s more at stake — about eight vials of what’s believed to be Beau’s frozen semen, estimated to be worth $3,000 each.
The semen is allegedly being held under Halstead’s name at an Inver Grove Heights veterinary clinic. She allegedly has profited from two sales, but John Wangsness wants ownership of it. “Damn right, they’re mine,”he said.
[...] Regarding the frozen semen, Crosby said at the hearing, it belongs to Beau’s brother, Beau Jangles, and that the confusion is due to the similar names.
Björn Hoops (Groningen) has posted More Safeguards Instead of a Ban of Economic Development Takings: The Kelo Case from a German Perspective (Book Chapter) on SSRN. Here's the abstract:
The public response to the Kelo judgment of the US Supreme Court in the United States was mostly withering. It was apprehended that the uncertain promise of only slight economic benefits could henceforth justify a taking (of a home in particular) and that already disadvantaged people would be particularly prone to such takings. The call for a ban of takings for the purpose of economic development was crowned with some success. In an overwhelming number of States, either the State legislature or the State Supreme Court has banned economic development takings.
In this contribution I argue that a ban of economic development takings is not inevitable. The US Supreme Court and the State legislatures should instead seek to install judicial, procedural and substantive safeguards to avoid undesirable takings. The public good requirement, enshrined in Art. 14(3) of the German Basic Law (Grundgesetz; GG), provides a variety of instruments for that purpose. Relying upon this constitutional provision, the German Federal Constitutional Court (Bundesverfassungsgericht) has introduced five effective safeguards in German law. First, it requires Parliament to define the purposes of the taking (expropriation) in much detail. Secondly, the taking is subject to two fully reviewed proportionality tests. Thirdly, in balancing the involved interests, authorities and courts must accord additional weight to residential property that is envisaged to be taken. Fourthly, the competent authority is obliged to take measures that ensure that the private transferee actually implements the economic development project on the expropriated land. Fifthly, should the transferee fail to implement the project, the original owner must have the right to reacquire the property. The comparison with Art. 14(3) GG shows that these instruments are lacking in the jurisprudence of the US Supreme Court and Connecticut State law.
I argue that if Connecticut (or another US state) adopted these safeguards or other instruments with similar characteristics from other US states, the goals of the recent bans would be achieved while economic development takings would remain a policy option.
Alexander Lemann (Georgetown) has posted Rolling Back the Tide: Toward an Individual Mandate for Flood Insurance (Fordham Environmental Law Journal) on SSRN. Here's the abstract:
The National Flood Insurance Program is in flux — and under attack. On March 13, 2014, Congress passed the Homeowner Flood Insurance Affordability Act, delaying and dismantling many of the reforms it had put in place just twenty months earlier, when it passed the Biggert-Waters Flood Insurance Reform Act of 2012. Today, flood insurance is both a critical part of the country’s approach to dealing with the rising flood threat posed by climate change and a beleaguered and perpetually broke symbol of governmental ineptitude, leading to calls for its elimination. By providing federally-subsidized flood insurance, critics argue, the National Flood Insurance Program has insulated flood victims from the risks they face, encouraged development in flood prone areas and, paradoxically, increased the country’s overall exposure to flooding.
This account, however, gives short shrift to the Program’s sophistication and ability to discourage development in flood plains. In fact, the Program’s woes can largely be traced to two intertwined flaws: its weak mechanism for requiring coverage and its hesitation to charge premiums that reflect the actual risk policyholders face. In this Article, I argue that establishing an individual mandate for flood insurance, which would require all property owners in flood-prone areas to maintain policies, would do much to solve these problems and make the National Flood Insurance Program a powerful tool in the ongoing effort to mitigate our growing flood risk. By mandating coverage and charging rates that reflect the risk faced by each property, the National Flood Insurance Program could strike the difficult balance between providing a safety net to flood victims and discouraging flood-prone development, a goal that has eluded the Program over the course of its forty-six year history.
Wednesday, September 23, 2015
Evidence from the refugee crises shows that countries that have built fences have managed to successfully divert the flow of refugees to other routes;
Greece built a razor-wire fence in 2012 to block a short stretch of its border with Turkey that was a popular land crossing for migrants. It also increased security along the Evros River, which forms the remainder of the border. This is the first of several barriers that merely diverted the flow of migrants from Turkey, pushing them to Bulgaria or onto boats headed for Greek islands in the Aegean Sea.
Angela Riley (UCLA) & Kristen Carpenter (Colorado) have posted Owning Red: A Theory of Indian (Cultural) Appropriation (Texas Law Review) on SSRN. Here's the abstract:
In a number of recent controversies, from sports teams’ use of Indian mascots to the federal government’s desecration of sacred sites, American Indians have lodged charges of “cultural appropriation” or the unauthorized use by members of one group the cultural expressions and resources of another. While these and other incidents are currently in the headlines, American Indians often experience these claims within an historical and continuing experience of dispossession. For hundreds of years, the U.S. legal system has sanctioned the taking and destruction of Indian lands and artifacts, bodies and religions, identities and beliefs, all toward the project of conquest and colonization. Indian resources have been devalued by the law and made available for non-Indians to use of their own purposes. Seeking redresses for the losses caused by these actions, tribes have brought claims under a variety of laws, from trademark and copyright, to the First Amendment and Fifth Amendment, and some have been more successful than others. As a matter of property law, courts have compensated - albeit incompletely - the taking of certain Indian lands and has also come to recognize tribal interests in human remains, gravesites, and associated artifacts. When it comes to intangible property, however, the situation is more complicated. It is difficult for legal decision-makers and scholars alike to understand why Indian tribes should be able to regulate the use of Indian names, symbols, and expressions. Indeed, non-Indians often claim interests, sounding in free speech and the public domain, in the very same resources. To advance understanding of this contested area of law, this Article situates intangible cultural property claims in a larger history of the legal dispossession of Indian property - a phenomenon we call “Indian appropriation.” It then evaluates these claims vis à vis prevailing legal doctrine, and offers a normative view of solutions, both legal and extralegal.
Christopher Newman (George Mason) has posted Bailment and the Property/Contract Interface on SSRN. Here's the abstract:
This article seeks to contribute to both the theory of private law and our understanding of bailment doctrine. Building on earlier work by Thomas Merrill and Henry Smith, I offer a revised model of the interplay between property and contract, one that incorporates the concept of license. Applying this model to bailment doctrine, I find that it resolves certain problems that have long vexed the field, including the nature of a constructive bailment and the standard of liability for so-called “contractual deviation.”
Monday, September 21, 2015