PropertyProf Blog

Slavery at Jefferson's Monticello: Paradox of Liberty

If you find yourself in our nation's capital (say, to attend the ALPS conference), consider visiting the Smithsonian Museum of American History to view the new exhibit "Slavery at Jefferson's Monticello:  Paradox of Liberty," which opens today.  It looks fascinating.  From the Washington Post review:

Standing outside of “Slavery at Jefferson’s Monticello: Paradox of Liberty,” the thematic tensions are clear. On one side of the entrance, an image of Jefferson is placed against the script of his most famous writing, the Declaration of Independence. On the other side is a reproduction of a page from Jefferson’s farm book, with slave names neatly listed.

Tanya Marsh

Life of a Landlord: Can a Tenant Cancel the Decision to Move Out?

The L.A. Times explores what happens when a tenant gives a landlord notice that he's vacating, but then changes his mind.  The real estate expert for the Times writes, "When a tenant serves a written notice of termination, that notice is binding on the tenant. The tenant does not have a right to unilaterally revoke the termination. A tenant who gives notice and remains in the property beyond the time frame of the 30-day notice is no longer a lawful tenant and can be named in an unlawful detainer eviction case on the 31st day."

Steve Clowney

Eagle on the “Parcel as a Whole” Doctrine

Steven Eagle (George Mason) has posted The Parcel and then Some: Unity of Ownership and the Parcel as a Whole (Vermont Law Review) on SSRN.  Here's the abstract:

The U.S. Supreme Court’s “parcel as a whole” doctrine evaluates regulatory takings claims in the context of the landowner’s entire holding. The doctrine is predicated upon a largely arbitrary bifurcation, whereby the jurisprudence of regulatory takings is rooted in substantive due process, although the jurisprudence of physical takings is rooted in property law. Given its lack of a foundation in property law, “parcel as a whole” is both complex and uncabined.

The open-ended nature of “parcel as a whole” is reflected in current attempts to extend it under an asserted “unity of ownership” theory. Under this formulation, separate deeded parcels may be treated as one parcel for takings purposes, even if there is no common or overlapping ownership or common commercial enterprise as traditionally defined by property, partnership, or corporate law.

This Article asserts that the proper foundation for “parcel as a whole” is the common law doctrine of “appropriation to use.” It subsequently analyzes the “unity of ownership theory,” as it relates to coordinated development by separate owners of contiguous parcels. Under the Georgist “unity of ownership” view, value is created by society, which justifies government’s arrogation of the benefits of neighborly cooperation.

The Article concludes that “appropriation to use” clarifies analysis of the relevant parcel, and that “unity of ownership” undermines rules for determination of ownership established in real property, partnership, and business law. It thus is inimical to property rights, and, more broadly, hinders individual flourishing by depriving people of the fruits of social cooperation.

Steve Clowney

London Bridge is Falling Down

 

Actually, London Bridge may be fine.  I don't know.  But London has some bigger issues.  The Palace of Westminster has apparently been slowly subsiding for some time, which has caused Big Ben to lean, and for cracks to appear in surrounding structures. (The Big Ben situation may not be a problem for 10,000 years, according to one expert.)  To fix the underlying problem, engineers propose sealing off large portions of the Palace of Westminster for years, to allow them to shore up the foundation.  Some MPs, unhappy about the time and expense that would be involved in saving the 140+ year old structure, propose selling it to developers and building a new home for Parliament.

Meanwhile, back in America, the New York Times reports today on efforts in NYC to reconcile historic preservation and new green building standards. 

Tanya Marsh

A Down-payment Protection Plan

Economist James Wilcox argues in the N.Y. Times for a government-run form of insurance on home equity.  He writes:

Here’s how down-payment protection could work. Homebuyers could purchase protection from the government for a one-time fee, say 1 percent of the house purchase price, or $2,000 on a house selling for $200,000. The fee could vary with the risk of house price declines in each area. The plan would be open to all buyers. At the end of three years, the government would automatically mail checks to protected homeowners if average house prices in their area were lower than when they purchased their homes.

Steve Clowney

A Defense of the Street Grid

Paul Knight writes a heartfelt defense of the grid-based urban form from charges that it's boring, environmentally damaging, and pro-developer.  "A continuous grid," he writes, "can harbor everything from farms to skyscrapers. The only thing a grid plan does is subdivide territory. No town can predict what the future will bring, but if they have a grid it is easier to accommodate that future."

Steve Clowney

Will the Supreme Court Kill Rent Control?

An overwhelming majority of economists agree that rent control laws are a horrible idea.  But are they unconstitutional?  It's possible we'll find out.

In 2005, James Harmon inherited a five-story brownstone in New York's Upper West Side.  The property is subject to New York City's Rent Stabilization Law and the units currently rent at rates that are 59% below market.  Harmon sued in federal court, claiming a taking under Fifth Amendment and a violation of his  Due Process rights under the Fourteenth Amendment.

Both the district court and the Second Circuit  quickly dismissed Harmon's claims.  Uncowed, Harmon has appealed to the U.S. Supreme Court (here's the Cato Institute's amicus curiae brief).  Will the Court hear the case? The only ray of hope - the Court recently requested that the opposition submit a brief on Harmon's petition (the city and state had waived their right to do so based on the strength of their victories in the lower courts).  So, we can gather that there's at least one sympathetic Justice.

Steve Clowney

Gallanis on Trust Law

Thomas Gallanis (Iowa) has posted The New Direction of American Trust Law (Iowa Law Review) on SSRN.  Here's the abstract:

This article is a revised version of the Shirley A. Webster Lecture in Wealth Transfer Law given by the author at the University of Iowa. The article explores the central tension in the law of trusts between the rights and interests of the settlor and the rights and interests of the beneficiaries. In navigating these, the law of trusts has at times taken a position more favorable to the settlor and at other times a position more favorable to the beneficiaries. The article offers a descriptive and normative analysis of where American trust law has been and where it is going. The article argues that American trust law, which had previously moved in the direction of favoring the settlor, is moving in a new direction, with a more balanced recognition of the rights and interests of the beneficiaries. The article further argues that this new direction is appropriate and welcome.

Steve Clowney

Can You Trademark the Color Red?

For those of you that don't keep up with the fashion world, Christian Louboutin makes really, really fancy shoes.  For a trained eye, Louboutins are easily identifiable because they generally have an eye-catching red sole.  According to some updates from around the interwebs, the red sole is the subject of a nasty dust-up between high end fashion houses.

Louboutin is suing Yves Saint Laurent for trademark violations. YSL, it seems, has produced four shoes that are red all over, including the soles. A nice article from the New York Times (authored by Harvard prof Jeannie Suk) runs through some of the main legal points:

Louboutin has invested plenty in that red sole and successfully linked the sole’s shade with the shoemaker. Since a main purpose of trademark law is to protect one’s investment in reputation, Louboutin’s sole-saving efforts are understandable. But red; it’s a color. An interlocking LV on a Louis Vuitton handbag or a Nike swoosh on a sneaker is one thing, some say. But monopolizing a color ... just doesn’t seem right.

Suk predicts that the court will not allow Louboutin to monopolize the color red, but she thinks that Congress needs to clarify to rules surrounding intellectual property and fashion.

Steve Clowney

Smith on the Economy of Concepts in Property

Henry Smith (Harvard) has posted On the Economy of Concepts in Property (Penn Law Review) on SSRN.  Here's the abstract:

Legal concepts, like concepts generally, help economize on information. Conventional wisdom is correct to associate conceptualism with formalism, but misunderstands the role concepts play in law. Commentators from the Legal Realists onward have paid insufficient attention to the distinction between intensions – functions from worlds to categories – and extensions – the categories themselves. Concepts that pick out the same category can differ greatly in terms of information costs. This Article applies some tools of cognitive science to explore the economics of legal concepts. As in cognitive science, we expect simplicity of description and generality of explanation to coincide. Specifically, both the mind and the law can be regarded as information-processing devices that manage complexity and economize on information by employing concepts and rules, the specific-over-general principle, modularity, and recursiveness. These devices work in tandem to produce the economizing architecture of property. The cognitive theory is then applied to longstanding puzzles like the role of baselines such as nemo dat (“one can give that which one does not have”) and ad coelum (“one who owns the soil owns to the heavens above and the depths below”), the notion of “title,” and the function of equity as a safety valve for the law. The cognitive theory also allows one to reconcile reductionism and holism in property theory as well as static and dynamic explanations of the contours of property.

Steve Clowney

Where is Middle America?

In the L.A. Times, Christopher Hawthorne checks out an exhibit of the nine places that claim to occupy the center of the country:

There’s the geographical center (near Belle Fourche, S.D.); the population center (Plato, Mo.); and something called the “geodetic” center (a few miles outside Osborne, Kan.), pinpointed using a method that corrects for the curvature of the earth. Now there’s even a Google center: the point you reach if you call up a map of the U.S. on the search engine and zoom straight in as far as you can go. Depending on your browser, that’ll take you to one of two other towns in Kansas, each of which is the hometown of a Google employee.

The true appeal of the show, though, is the rich variety of themes that swirl up around its straightforward, even myopic focus. The exhibition is in many ways an exploration of the human desire to find and mark a center, a universal impulse that has gained new precision — and perhaps a new momentum — in the digital age.

Steve Clowney

(Pic: the Google center of the USA, between Coffeyville and Independence, KS)

Does Preservation Equal Affordability?

Cavan Wilk argues that preserving old buildings is key to having affordable urban neighborhoods.  He writes, "All other things being equal, old buildings are usually more affordable than new buildings. Without the latest amenities, old buildings have to charge less in order to attract tenants. A healthy supply of old buildings is therefore crucial to long term neighborhood affordability."

Matt Yglesias explains why this is a strange stance:

If you have expensive land, one way to make dwelling on the land cheap is to ensure that some of the structures built on the land are low quality. A low quality structure may be an old structure since old structures may, in Wilk's words, lack "the latest amenities." But for policy purposes it's important to be clear that it's the low quality rather than any of the more meritorious aesthetic features of old buildings that's driving the affordability here. If you go to Park Avenue in Manhattan, you'll find plenty of old buildings that aren't even slightly affordable. That's because they're not low-quality buildings!

Steve Clowney

Tekle on Laws & Watershed Law

Asmara Tekle (Thurgood Marshall) has posted Lawns and the New Watershed Law (Marquette Law Review) on SSRN.  Here's the abstract:

American's long love affair with the evergreen, crew-cut, weed and pest free "Industrial" front lawn has resulted in untold costs on some of the nation's most cherished waterways, including Puget Sound, the Great Lakes, and the Chesapeake Bay. While this Article examines the legal regimes, primarily public law and neighborhood or community norms, that arguably have helped to "brown" the front lawn and make it environmentally unsustainable, it also argues that law can be a force to "green" it. By virtue of its effects on the watershed and marine ecosystems, the front lawn links water and land. This Article ultimately suggests that localities consider the front lawn’s effects on marine ecosystems and water management as a starting point for crafting land use law and policy. Arguably, therefore, land use law governing the front lawn has become part of the new watershed law.

Steve Clowney

The Land Grant of William M'Intosh

 

I'm teaching Johnson v. M'Intosh tomorrow, so I thought it would be fun to find the original land grant to William McIntosh.  My favorite part is how they crossed out James Madison's name at the top and handwrote in "Monroe." 

A few years ago, you had to visit the National Archives to get copies of original land grants.  Today, many are digitized and available online at the Bureau of Land Management's General Land Office website. 

You can click on the image to the right to get a larger version of the grant.  Feel free to e-mail me if you want a high resolution, full-size version.  I also have a map of Illinois from 1818, which shows that most of the state covered by the Johnson grant was not yet surveyed and open for settlement.

Tanya Marsh

 

 

 

 

 

 

 

 

 

 

 

The Steve Jobs Action Figure and White v. Samsung

 

 

We discussed the common law right of publicity today in class, particularly the 1993 9th Circuit Vanna White v. Samsung Electronics case.  If you aren't familiar with the case, Samsung had a national ad campaign which featured an image of a robot wearing a blonde wig, turning letters on a Wheel of Fortune-type board.  The campaign did not name White or Wheel of Fortune, but in the context, it is pretty clear that they meant to invoke White.  They even referred to the ad internally as the "Vanna White ad."  Underneath the image, the text read: "Longest running game show, 2012 A.D."  The class thought that bit was fairly funny.

We also discussed a ripped-from-the-headlines example of the Steve Jobs action figure.  The company "in icons" had proposed to sell the 1-foot, increadibly realistic action figure, beginning in February.  It received a cease and desist letter from Apple, threatening legal action.  After initially refusing to budge, in icons caved yesterday, announcing that out of respect for the Jobs family, it would not produce the figure.

Discussing the Jobs action figure after reading the White case was very effective, allowing us to debate drawing distinctions between property rules protecting the images of entertainment celebrities (like White) and public figures (like Jobs), the living and the dead, those who made money by selling their image, versus those who did not.  The same issues can be raised by discussing White v. Samsung and the Martin Luther King Jr. Center for Social Change case.

Tanya Marsh

The Nelson Symposium at Florida

On Friday, February 10th, the University of Florida is hosting the eleventh annual Richard E. Nelson Symposium. The topic is “Digging Up Some Dirt (Law): How Recent Developments in Real Property Law Affect Landowners and Local Governments.” The four major topics concern changes in adverse possession, eminent domain, easement, and mortgage law. The presenters include Michael Wolf (Florida), Carol Brown (UNC), Ann Marie Cavazos (FAMU), Alex Johnson (UVA), and Jessica Owley (Buffalo).

Looks terrific. Registration information here.

Steve Clowney

Doremus on Climate Change and the Evolution of Property Rights

Holly Doremus (Berkeley) has posted Climate Change and the Evolution of Property Rights (UC Davis Law Review) on SSRN.  Here's the abstract:

Climate change will unsettle expectations about both land and water. Those changes will reduce the extent to which existing

resource allocations effectively serve societal interests. In the United States, we typically rely on market transactions to adjust property allocations as societal needs and interests change. Markets, however, will not adequately protect the collective, as opposed to the private, interests climate change will put at risk. Changes to underlying property rules will be needed if those interests are to be sustained.

Because current property rules stand in the way of efficient and effective adaptation to climate change, evolution of property law is an important aspect of adaptation. But because property rules are especially sticky, the needed changes will not come easily. Federal courts must play the keystone role because they control the interpretation of key constitutional doctrines. The chief legal impediment to climate adaptation at the moment is federal court resistance to changes in property rules. If that resistance can be softened, state courts and legislatures can, and likely will, make needed adjustments. Federal courts should be careful not to stand in the way of such adjustments, although they also have a role to play in ensuring that the costs of change are fairly distributed.

Steve Clowney

Be Warned

I'm about to teach Kelo to my Property students. They'd all remember the hubbub about the case, right?  It was only a few years ago, right?  Wrong.  Many of them were in 9th grade.  I asked the class how many people remembered the case.  Only about 15% raised their hands.  Be warned.  We are old.

Ben Barros

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Gingrich: Lefty Urbanites Who Ride the Subway Don't Understand Why Homeownership is Important

It appears that Newt Gingrich only loves the free market when it doesn't hurt the bottom line of wealthy  people who live in the suburbs.  Gingrich recently gave a speech at the National Association of Home Builders' "Rally for Homeownership," where he pledged to protect the Mortgage Interest Deduction.  If supporting a program that most economists consider a giant waste of money wasn't bad enough, Gingrich couldn't resist throwing daggers at city-dweller.  He remarked, “Those who, you know, live in high-rise apartment buildings writing for fancy newspapers in the middle of town after they ride the metro, who don’t understand that for most Americans the ability to buy a home, to have their own property, to have a sense of belonging is one of the greatest achievements of their life, and it makes them feel like they are good solid citizens.”

Steve Clowney

Mossoff on Locke’s Labor Theory and Intellectual Propert

Adam Mossoff (George Mason) has posted Saving Locke from Marx: The Labor Theory of Value in Intellectual Property Theory (Social Philosophy & Policy) on SSRN.  Here's the abstract:

The labor theory of value is fundamental to John Locke’s justification for property rights, but philosopher Edwin Hettinger argued in an oft-cited article that it fails to justify intellectual property rights. In making this critique, though, Hettinger redefined Locke’s theory into a theory about proportional physical labor creating economic value, just as Robert Nozick, G.A. Cohen and other philosophers have done. In response to this strawman attack, this article describes Locke’s labor theory of value and how Locke himself applied it to intellectual property rights. It does so by analyzing the actual text of the Second Treatise, including many forgotten or neglected sections, and by integrating Locke’s property theory within the context of his natural law ethical theory, as presented in An Essay Concerning Human Understanding and in other works. In its proper context, Locke’s concept of labor refers to production, which is both an intellectual and physical activity. His concept of value refers to what serves the flourishing life of a rational being, which is a conception of the good that is more robust than merely physical status or economic wealth. Locke’s own text and philosophical arguments answer the absurdities imposed on him by Hettinger, Nozick, Cohen and others. Even more important, understanding his labor theory of value explains why Locke expressly approves of inventions in his property theory and why he explicitly argues that authors have property rights (copyrights) in their writings, which are arguments that are seemingly lost on his modern critics.

Steve Clowney