Friday, December 19, 2014
In time for Christmas, Denmark has claimed Santa Claus's home -- the North Pole. Although it might seem like a joke, Denmark's wish to expand its influence in the Arctic is part of a serious geopolitical struggle: Canada and Russia also claim the spot.
It all comes down to future revenue sources. According to a 2008 U.S. Geological Survey the Arctic Circle might hide between 13 and 30 percent of the world's undiscovered oil and gas resources under a thick layer of ice. Climate change and the melting of glaciers are expected to make much of those resources accessible to drilling and mining faster than expected, as two new studies suggested this week. Melting ice could also open new transport routes and benefit those who control them.
But why was Denmark -- a relatively small country, even for European standards -- able to enter the fight with Canada and Russia in the first place? Neither France nor Germany has yet to make such a claim, let alone some of its Nordic neighbors. It's because the Kingdom of Denmark possesses the semi-autonomous country of Greenland, located right next to the Arctic.
Ryan McCarl (Independent) has posted When Homeowners Associations Go Too Far: Political Responses to Unpopular Rules in Common Interest Communities (Real Estate Law Journal) on SSRN. Here's the abstract:
Common Interest Communities (CICs) are an increasingly ubiquitous form of homeownership and land use control in the United States. The statutory and common law frameworks that govern CICs are characterized by deference to homeowners association (HOA) actions. While courts have generally deferred to HOA decisions, however, the political branches of government — legislatures at the federal, state, and local level — have increasingly intervened to carve out specific, discrete rights for homeowners that override the rules of CICs, creating rights to keep a pet, hang a clothesline, and fly an American flag, among others. As yet, no article has attempted to explain why legislatures have repeatedly stepped in to carve out limited exceptions to the general rule of deference to HOA decisions.
In this Article, I suggest reasons why some owner-HOA disputes trigger political intervention, even though most such disputes attract little attention outside the CIC. I argue that homeowner-HOA conflicts are most likely to attract political attention where the owner is a sympathetic litigant able to attract political empathy, and where the rule at issue is intrusive and salient rather than relating to something perceived as of minimal importance. Finally, if the homeowner’s cause aligns with an interest group and does not trigger opposition from a different interest group, the owner’s chance of triggering political change is likely to be significantly increased.
Thursday, December 18, 2014
Stephen Miller (Idaho) has posted Cultivating Candide's Foodshed: A Coordinated Approach to Food Safety and Land Use Law at the Urban Fringe (American Journal of Law and Medicine) on SSRN. Here's the abstract:
Much has been written about the rise of the local food movement in urban and suburban areas. This essay tackles an emerging outgrowth of that movement: the growing desire of urban and suburban dwellers to engage rural areas where food is produced not only to obtain food but also as a means of tourism and cultural activity. This represents a potentially much-needed means of economic development for rural areas and small farmers who are increasingly dependent on non-farm income for survival. The problem, however, is that food safety and land use laws struggle to keep up with these changes and, as a result, often waffle between over-regulation and de-regulation. This essay posits a legal path forward to steer clear of regulatory extremes and to help the local food movement grow and prosper at the urban fringe.
Tuesday, December 16, 2014
PROJECT ON THE FOUNDATIONS OF PRIVATE LAW
POSTDOCTORAL FELLOWSHIP, 2015-2017
PURPOSE: The Project on the Foundations of Private Law is an interdisciplinary research program at Harvard Law School dedicated to scholarly research in private law. Applicants should be aspiring academic with a primary interest in one or more of property, contracts, torts, intellectual property, commercial law unjust enrichment, restitution, equity, and remedies. The Project welcomes applicants with a serious interest in legal structures and institutions, and welcomes a variety of perspectives, including economics, history, philosophy, and comparative law. The Fellowship is a postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers. Fellows are selected from among recent graduates, young academics, and mid-career practitioners who are committed to spending two years at the Project pursuing publishable research that is likely to make a significant contribution to the field of private law, broadly conceived. More information on the Center can be found at: http://www.law.harvard.edu/programs/about/privatelaw/index.html.
PROGRAM: Postdoctoral Fellowships in Private Law are full-time, two-year residential appointments starting in the Fall of 2015. Fellows devote their full time to scholarly activities in furtherance of their individual research agendas. The Project does not impose teaching obligations on fellows, although fellows may teach a seminar on the subject of their research in the Spring of their second year. In addition to pursuing their research and writing, fellows are expected to attend and participate in research workshops on private law, and other events designated by the Project. Fellows are also expected to help plan and execute a small number of events during their fellowship, and to present their research in at least one of a variety of forums, including academic seminars, speaker panels, or conferences. The Project also relies on fellows to provide opportunities for interested students to consult with them about their areas of research, and to directly mentor its Student Fellows. Finally, fellows will be expected to blog periodically (about twice per month) on our collaborative blog, which is under development.
STIPEND AND BENEFITS: Fellows have access to a wide range of resources offered by Harvard University. The Center provides each fellow with office space, library access, and a standard package of benefits for employee postdoctoral fellows at the Law School. The annual stipend will be $50,000 per year.
ELIGIBILITY: By the start of the fellowship term, applicants must hold an advanced degree in law. The Center particularly encourages applications from those who intend to pursue careers as tenure-track law professors, but will consider any applicant who demonstrates an interest and ability to produce outstanding scholarship in private law and theory. Applicants will be evaluated by the quality and probable significance of their research proposals, and by their record of academic and professional achievement.
APPLICATION: Applications will be accepted starting December 15, 2014. Completed applications must be received at email@example.com by 9:00 a.m. on February 2, 2015. Please note that ALL application materials must be submitted electronically, and should include:
1. Curriculum Vitae
2. PDFs of transcripts from all post-secondary schools attended.
3. A Research Proposal of no more than 2,000 words describing the applicant’s area of research and writing plans. Research proposals should demonstrate that the applicant has an interesting and original idea about a research topic that seems sufficiently promising to develop further.
4. A writing sample that demonstrates the applicant’s writing and analytical abilities and ability to generate interesting, original ideas. This can be a draft rather than a publication. Applicants who already have publications may also submit PDF copies of up to two additional published writings.
5. Three letters of recommendation, emailed directly from the recommender. Letter writers should be asked to comment not only on the applicant’s writing and analytical ability, but on his or her ability to generate new ideas and his or her commitment to pursue an intellectual enterprise in this area. To the extent feasible, letter writers should provide not just qualitative assessments but also ordinal rankings. For example, rather than just saying a candidate is “great,” it would be useful to have a statement about whether the candidate is (the best, in the top three, among the top 10%, etc.) among some defined set of persons (students they have taught, people they have worked with, etc.).
All application materials with the exception of letters of recommendation should be e-mailed by the applicant to firstname.lastname@example.org. Letters of Recommendation should be emailed directly from the recommender to the same address.
For questions or additional information, contact:
Bradford Conner, Coordinator, email@example.com.
Bonnie Holligan (Sussex) has posted Criminalisation of Squatting: Scottish Lessons? (Book Chapter) on SSRN. Here's the abstract:
“Squatting” has long been a criminal offence in Scotland, with the relevant legislation dating back to Trespass (Scotland) Act 1865. This chapter considers the historical origins of the criminalisation of squatting in Scotland, connecting the concerns about mobile and marginalised populations which led to the enactment of the 1865 Act to the politics of squatting and homelessness today. Through investigation of archive sources, the chapter maps the extent and circumstances of the Act’s past use by police and raises concerns about the impact of criminal penalties on today’s marginalised populations.
Monday, December 15, 2014
From the NY Times Real Estate section:
Q. I rent an apartment on the fifth floor of a six-story, prewar apartment building. I’ve always had an ample supply of hot water, but it takes a very, very long time to arrive out of the tap. Sometimes in the morning I can wait up to 10 minutes after turning on the hot water before the shower is warm enough to step in. The kitchen sink is the same. I’m willing to wash dishes in cold or lukewarm water, but a cold shower in the morning is out of the question. I’ve brought this issue up a couple of times with my super, but he doesn’t seem to view it as a serious problem. I feel guilty about wasting so much water. Is there anything I can do?
A. There are few things more miserable than a cold shower on a frigid December day. Even if your superintendent does not consider your tepid water a problem, the city certainly does.
“It should not take 10 minutes for the water to get hot,” said Kenny Schaeffer, a housing lawyer and a vice chairman of the Metropolitan Council on Housing. The city’s building code requires residential buildings with four or more stories to have a recirculation system in place, which continuously recirculates water back to the boiler so that hot water is available when you turn on your faucet. “The code is the code, you’re supposed to have one,” said Philip J. Kraus, the president of Fred Smith Plumbing.
Write a letter to your landlord or property manager explaining the hot water delay. Request that a plumber inspect the pipes and make whatever repairs are necessary to restore your hot water. If the landlord does not resolve the issue, call 311. Report the condition to the Department of Housing Preservation and Development, Mr. Schaeffer said. Ultimately, the city has the leverage to force the landlord to fix the problem. The agency could send out an inspector who could issue a violation, if necessary. You could also file a claim in housing court — or an HP claim — to pressure the landlord to act.
Lisa Sun (BYU) and Brigham Daniels (BYU) have posted Mirrored Externalities (Notre Dame Law Review) on SSRN. Here's the abstract:
A fundamental but underappreciated truth is that positive and negative externalities are actually mirror reflections of each other. What we call “mirrored externalities” exist because any action with externalities associated with it can be described as a choice to do or to refrain from doing that particular action. For example, if a person smokes and thereby creates a negative externality of more secondhand smoke, then her choice not to smoke creates a positive externality of less secondhand smoke. Conversely, if a person’s choice to get an immunization confers a positive externality of reducing vectors for disease transmission, then a choice not to get an immunization necessarily imposes negative externalities on third parties in the form of more vectors for disease. In each set, the negative externalities are the inverse — the mirror image — of the positive externalities. Thus, we have two possible characterizations or framings of any decision, one of which focuses on negative externalities and the other of which focuses on positive externalities. Which framing tends to predominate may be influenced by a number of factors, including society’s baseline sense of the actor’s legal or moral entitlement to engage in (or refrain from engaging in) particular behavior, the availability of a villain to whom to ascribe negative externalities, and the relative invisibility of certain externalities until disaster strikes, when the negative framing becomes the face of the crisis.
Ultimately, the framing of externalities has profound effects on both the way we think about and process externalities and on our politics and policy development. We see profound potential impacts of framing on human perception of risk and opportunities, particularly due to the implications of the Nobel Prize-winning work of behavioral economists Amos Tversky and Daniel Kahneman. Their work on human perception suggests that due to loss aversion, the availability heuristic, and our bimodal response to catastrophic risk, we will give much greater weight and attention to negative externalities and consistently undervalue positive externalities. While positive externality frames are more effective in inspiring voluntary action, negative frames have serious implications for policy decision-making. The choice to emphasize either the positive or negative externality in the mirrored set shapes the array of policy prescriptions we are likely to consider. The same choice may affect whether we think there is a real problem to be solved in the first instance. We find loss aversion at work in policymaking as well: negative externalities, we suggest, are often viewed as a call to action, while positive externalities are viewed merely as an occasion for celebration. Lastly, the negative-externality “call to action” is often a concerted campaign to redefine the legal and social meaning of particular activities.
Given the critical role externalities play in justifying both development of property rights and intervention in markets and individual liberties, understanding mirrored externalities and the consequences of our framing of them is vital.
Friday, December 12, 2014
Tim Iglesias (San Francisco) has posted How Should the Law Treat Roommate Relationships? A Tale of Two Cases (California Real Property Law Reporter) on SSRN. Here's the abstract:
The law of roommates is an important but underdeveloped area of landlord-tenant law. Two recent cases, Fair Hous. Council v. Roommate.com, 666 F.3d 1216 (9th Cir. 2012) and Mercury Cas. Co. v. Chu, 229 CA4th 1432 (2014), offer contrasting approaches. This article explores the issues, reviews the cases and favors the Mercury court's approach.
Wednesday, December 10, 2014
Is your city better off if it has lots of recent immigrants or if it's full of people who stay put?:
For one, it’s easier for residents to develop relationships with neighbors in less transient communities. A more mobile population, however, may place a greater strain on school budgets, although it’s possible they might not demand as many other services from their local governments.
Perhaps more important, longtime residents are generally more civically engaged than newcomers. Citizen surveys conducted by the National Research Center find that residents with more than 10 years of residency contact elected officials and attend public meetings at greater rates. So, in cities suffering population declines, it’s reasonable to assume that those who remain will be quite vocal in their city’s affairs.
Governing Magazine also picked out the twenty cities where citizens have the deepest local ties: Akron, Ohio, Birmingham, Ala., Cleveland, Detroit, East Los Angeles, Calif., Flint, Mich., Fort Wayne, Ind., Green Bay, Wis., Huntington Beach, Calif., Independence, Mo., Jackson, Miss., Miami Gardens, Fla., Mobile, Ala., Norwalk, Calif., Philadelphia, Rialto, Calif., Rockford, Ill., Toledo, Ohio, West Covina, Calif., and Yonkers, N.Y
Celeste Hammond (John Marshall) has posted The Evolving Role for Transactional Attorneys Responding to Client Needs in Adapting to Climate Change (John Marshall Law Review) on SSRN. Here's the abstract:
This article considers these likely changes in the law for several categories of clients. In addition to business companies, it looks at the effect of activist investors and the insurance industry, which traditionally protects clients from risks. Because of the author's familiarity with transactions and the practice in the context of the commercial real estate industry, case studies to demonstrate themes will focus on clients involved in the acquisition of real estate, the financing of acquisitions and construction, commercial leasing, ownership & management of real estate to determine what the adaptation might be, how the law might change to respond to it and how the transactional lawyer will function.
Part I focuses on the distinct role of the transactional attorney as a "transaction cost engineer."
Part II provides a basic introduction to the science of climate change. The difference between the mitigation of climate change and adaptation to climate change is discussed. the three fundamental responses of adaptation are considered (defend in place against the impacts of climate change; retreat from the impacts of climate change and accommodate the impacts of climate change).
Part III examines proposals for the likely changes to the law and legal system to reflect adaptation to climate change. Economic costs of adaptation to ensure the resilience are huge and are being recognized by the business community. Other barriers to climate change are becoming clear as well.
Adaptation is a catalyst to thinking about the emerging law regarding climate change. A review of various academic thinking on how the law will change/adapt itself is discussed. Part IV considers the role of the transactional attorney as the law adapts to climate change. Part V expects that affected businesses, investors, government disclosure requirements, rules affecting availability of insurance are drivers of focus on the changes. Part VI provides a transactional case study: development of a real estate project after Hurricane Sandy to suggest adding adaptation to climate change to the typical checklists.
Tuesday, December 9, 2014
The LA Times does some reporting:
If you're thinking about taking out a home equity line, you're hardly alone. Credit lines tied to home equity — popularly known as HELOCs — are one of the fastest-growing segments in the mortgage market. Volume during the first half of 2014 is up by an extraordinary 21% compared with the same period last year, according to data collected by credit bureau Equifax.
The main reasons: Owners' equity holdings nationwide are up sharply — the Federal Reserve estimates gains at nearly $4.5 trillion since 2011 — and interest rates are near historical lows. Owners borrowed $66 billion against those fattened equity stakes during the first half of this year, a six-year high. Banks and other lenders extended 670,000 new HELOCs during the same period, also a six-year high, according to Equifax.
What are these people doing with their sudden access to ready cash, and how much are they pulling out? A new national survey, based on a representative sample of 1,364 homeowners with HELOCs, offers some important answers. The study was conducted last month by research firm Vision Critical for TD Bank.
The No. 1 finding: Most people aren't spending their home equity line money on dumb stuff. [...] Slightly more than half of current borrowers say they are using or have used their draw-downs for projects that are likely to increase the market value of their properties — updating kitchens, adding bathrooms, putting on a new roof and similar remodelings. An additional 29% have used their HELOC money to take advantage of today's wide gaps in interest rates among financial products. They are consolidating debts — paying off credit card balances with interest rates in the double digits using equity line funds borrowed at rates in the low single digits.
Robert Hockett (Cornell) has posted 'We Don't Follow, We Lead': How New York City Will Save Mortgage Loans by Condemning Them (Yale Law Journal Forum) on SSRN. Here's the abstract:
This brief invited essay lays out in summary form the eminent domain plan for securitized underwater mortgage loans that the author has been advocating and helping to implement for some years now. It does so with particular attention in this case to New York City, which is now actively considering the plan. The essay's first part addresses the plan's necessity. Its second part lays out the plan's basic mechanics. The third part then systematically addresses and dispatches the battery of remarkably weak legal and policy arguments commonly proffered by opponents of the plan.
Monday, December 8, 2014
An article from Mosiac Science looks at how better hospital design can keep patients healthier and save money:
Most of us have been lost in a hospital. The corridors all look the same, the signs for the department you want are there one minute and then gone the next. Everybody seems too busy for you to bother them asking for directions.
Getting lost is not only a cause of stress to patients and their families, but, when staff have to give directions, it is also a waste of clinical time. One study in a 600-bed hospital estimated that poor wayfaring cost over $220,000 a year. Much of this was due to the 4,500 hours of clinical time a year – approximately two full-time positions – that was spent giving directions to lost patients and even staff.
Erin Ryan (Lewis & Clark) has posted Environmental Federalism's Tug of War Within (Book Chapter) on SSRN. Here's the abstract:
In fact, environmental law is uniquely prone to federalism discord because it inevitably confronts the core question with which federalism grapples — who gets to decide? — in contexts where state and federal claims to power are simultaneously at their strongest. Environmental problems tend to match the need to regulate the harmful use of specific lands (among the most sacred of local prerogatives) with the need to regulate border-crossing harms caused by these uses (among the strongest of national prerogatives). As a result, it is often impossible to solve the problem without engaging authority on both ends of the spectrum — and disputes erupt when local and national ideas on how best to proceed diverge. Ongoing jurisdictional controversies in energy policy, pollution law, and natural resource management reveal environmental law as the canary in federalism’s coal mine, showcasing the underlying reasons for jurisdictional conflict in all areas of law. And they indicate the critical need to better cope with the problems of jurisdictional overlap at the level of federalism theory.
Concluding the book, this chapter explores why environmental law regularly raises such thorny questions of federalism, and what the broader federalism discourse can learn from environmental law. Drawing from the theoretical framework that I introduced in FEDERALISM AND THE TUG OF WAR WITHIN (Oxford, 2012: http://ssrn.com/abstract=1991612), Part II reviews the central objectives of federalism, examining the conflicting values they imply and the resulting tension that suffuses all federalism-sensitive governance. Part III evaluates why federalism conflicts are heightened in the context of environmental law. Divisiveness not only reflects the intense competition among federalism values in environmental governance, it also provides key insights into the core theoretical dilemmas of jurisdictional overlap more generally. Part IV probes how environmental law has adapted to manage the challenges of overlap by asymmetrically allocating local, state, and federal authority within various models of collaborative or coordinated governance.
Part V concludes with consideration of what the larger discourse can learn from the dynamic federalism innovations emerging from within environmental governance. Environmental law demonstrates that the most successful multiscalar governance is conducted through processes of consultation, compromise, and coordination that engage stakeholders at all levels of jurisdictional scale. The broader federalism discourse is increasingly recognizing environmental federalism for lighting a path away from the entrenched “zero-sum” model, which treats every assertion of authority at one jurisdictional level as a loss of authority for the others. Many areas of environmental law doubtlessly remain imperfect in their implementation of these ideals. Still, every-day environmental governance shows us that, at the end of the day, good interjurisdictional governance is essentially a project of negotiation.
Friday, December 5, 2014
Yale, Stanford, and Harvard Law Schools announce the 16th session of the Yale/Stanford/Yale Junior Faculty Forum to be held at Harvard Law School on June 16-17, 2015 and seek submissions for its meeting.
The Forum’s objective is to encourage the work of scholars recently appointed to a tenure-track position by providing experience in the pursuit of scholarship and the nature of the scholarly exchange. Meetings are held each spring, rotating at Yale, Stanford, and Harvard. Twelve to twenty scholars (with one to seven years in teaching) will be chosen on a blind basis from among those submitting papers to present. One or more senior scholars, not necessarily from Yale, Stanford, or Harvard, will comment on each paper. The audience will include the participating junior faculty, faculty from the host institutions, and invited guests. The goal is discourse on both the merits of particular papers and on appropriate methodologies for doing work in that genre. We hope that comment and discussion will communicate what counts as good work among successful senior scholars and will also challenge and improve the standards that now obtain. The Forum also hopes to increase the sense of community among American legal scholars generally, particularly among new and veteran professors.
TOPICS: Each year the Forum invites submissions on selected topics in public and private law, legal theory, and law and humanities topics, alternating loosely between public law and humanities subjects in one year, and private law and dispute resolution in the next. For the upcoming 2015 meeting, the topics will cover these areas of the law:
- Civil Litigation and Dispute Resolution
-Contracts and Commercial Law
- Corporate and Securities Law
- Intellectual Property
- International Business Law
- Private Law Theory and Comparative Private Law
- Property, Estates, and Unjust Enrichment
A jury of accomplished scholars, again not necessarily from Yale, Stanford or Harvard, with expertise in the particular topic, will choose the papers to be presented. There is no publication commitment, nor is published work eligible. Yale, Stanford, or Harvard will pay presenters’ and commentators’ travel expenses, though international flights may be only partially reimbursed.
QUALIFICATIONS: There is no limit on the number of submissions by any individual author. To be eligible, an author must be teaching at a U.S. law school in a tenured or tenure-track position and must not have been teaching at either of those ranks for a total of more than 7 years. American citizens teaching abroad are also eligible provided that they have held a faculty position or the equivalent, including positions comparable to junior faculty positions in research institutions, for less than seven years, and that they earned their last degree after 2005. International scholars are not eligible for this forum, but are invited to submit to the Stanford International Junior Faculty Forum. We accept co-authored submissions, but each of the coauthors must be individually eligible to participate in the JFF. Papers that will be published prior to the forum in June are not eligible.
PAPER SUBMISSION PROCEDURE:
Electronic submissions should be sent to Jennifer Minnich ( jminnich at law.harvard.edu), with the subject line “Junior Faculty Forum.” The deadline for submissions is March 1, 2015. Remove all references to the author(s) in the paper. Please include in the text of the email and also as a separate attachment a cover letter listing your name, the title of your paper, your contact email and address through June 2015, and which topic your paper falls under. Each paper may only be considered under one topic. Any questions about the submission procedure should be directed both to Adriaan Lanni ( adlanni at law.harvard.edu) and her assistant, Jennifer Minnich ( jminnich at law.harvard.edu).
FURTHER INFORMATION: Inquiries concerning the Forum should be sent to Gabby Blum ( gblum at law.harvard.edu) or Adriaan Lanni ( adlanni at law.harvard.edu) at Harvard Law School, Richard Ford ( rford at stanford.edu) at Stanford Law School, or Christine Jolls ( christine.jolls at yale.edu) or Yair Listokin ( yair.listokin at yale.edu) at Yale Law School.
Robin Craig (Utah) has posted What the Public Trust Doctrine Can Teach Us About the Police Power, Penn Central, and the Public Interest in Natural Resources: A Tribute to Joe Sax (Environmental Law) on SSRN. Here's the abstract:
One of Joseph Sax’s recurring scholarly concerns was how to effectuate and preserve the substantial and long-term public interest in natural resources, and he was drawn to the public trust doctrine in part because that doctrine explicitly recognizes that public rights in those resources, particularly water, do exist. Following in Sax’s tradition, this Article argues that the public trust doctrine can serve to illuminate structural and analytical problems with regulatory takings doctrine, which has had a much more difficult time acknowledging the role of public rights. In particular, while governments do sometimes directly represent the rights of the Public — under the public trust doctrine, for example, as the trustee of submerged lands and as protector of the Public’s right of navigation — the Penn Central takings analysis both overdeterminedly conflates government action with the public interest, eliding the fact that the private property owner is also a member of the Public who benefits from government action, and denies the Public its full independent status as a third interest-holder in any property rights analysis. Using examples from water law, coastal land use regulation, and fisheries management, this Article argues that regulatory takings doctrine unnecessarily impedes the urgent need for property law to evolve to meet the demands of a post-exploitation United States and that the Public and communitarian approach on property rights that the public trust doctrine offers presents a much more useful perspective on property rights for our changing future.