PropertyProf Blog

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Univ. of Kentucky College of Law

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Friday, August 11, 2006

More Property Note Topics

Last week, Al had a great post on property note topics.  Here are some additional thoughts:

First, although I agree with almost everything he says on the subject, I disagree with Al's conclusion that students should stay away from writing about takings.  I don't think that students should write notes on recent Supreme Court cases, period.  The Supreme Court is already over-covered in legal academia, and most law students don't have enough background knowledge to add much to the discussion.  There are a lot of other subjects where a good note can add a great deal to the academic literature, and I hate to see a student waste time on, say, another critique of Kelo.

This said, there are lots of interesting takings note topics out there.  I bit off a big takings-related note topic ("Defining "Property" in the Just Compensation Clause") and had a good time with it, though it helped that I had Bill Treanor to advise me.  If I was doing a takings note now, though, I'd focus on state cases and Federal Circuit/Court of Claims takings cases.  Takings scholars tend to pretend that the Supreme Court is the only court with anything interesting to say about takings (I, personally, am completely guilty of doing this).  But there are tons of fascinating takings cases out there from other courts.  Many states have unique takings doctrines that differ from the Supreme Court's doctrine.  The Court of Claims and Federal Circuit hear virtually all of the important takings claims against the United States, and have developed a rich takings jurisprudence of their own that in places bears only passing resemblance to Supreme Court doctrine.  I'm very confident that a student who knows the basics of Supreme Court takings doctrine could take a close look at the takings jurisprudence of any given state or of the Fed Circuit and easily come up with something interesting to talk about.

This last point highlights a great opportunity for student notewriters in any subject.  There is a lot of opportunity to take a close look at any given area of the law and explain clearly and cogently how it works in any given jurisdiction (other than the Supreme Court!).  Law professors don't do this type of doctrinal scholarship much anymore, and there is a great need for it.  Some Law Review editorial boards unfortunately often require notes to have national importance.  I think this requirement is silly, but it isn't that hard to give a jurisdiction-specific study a national gloss by working in comparisons to other jurisdictions.

Another broad subject to look at are common interest communities.  I often hear from practicing lawyers that they are always dealing with issues relating to homeowners' association covenants.  Though this is changing a bit, law professors don't write enough in this area, leaving it wide open for students.  One of my students is publishing a note on covenants against sex offenders, which have started to spring up all over the place.  Litigation between associations and homeowners present all sorts of cool issues.  Find an interesting case on an issue and expand your research to find out what other courts are saying about it.  Or do an empirical study -- what are owners and associations fighting about in your jurisdiction?  There also are some interesting ADR suggestions to be made to avoid this kind of litigation altogether.  On the constitutional side of things, there is a big question about whether homeowners' associations should be considered state actors -- the New Jersey Supreme Court recently decided a case on this issue.  Relating to both covenants and zoning, I've seen a lot of recent press discussion on issues relating to multigenerational families and how they often violate single-family residency restrictions.

Another interesting property-related constitutional subject is the Establishment Clause issues presented when a municipality takes property for transfer to a religious institution.

Property in the human body is always an interesting topic.  Both the European Court of Human Rights and the Second Circuit have recently decided cases on this issue.

On the nuisance front, an interesting topic might be looking at invasive species as nuisances.

UPDATE:  Here are some additional ideas:

Kurt Paulsen sends along this great suggestion:

One of the more contentious land use disputes of late concerns "big box" retail stores and community opposition to them.  One of the ways communities try to fight "big box" stores is with size caps.  These can be absolute caps (less likely) or additional requirements for larger stores.  (e.g. more stringent review procedures and/or design guidelines or the recently passed Chicago ordinance requiring a "living wage" in stores over 90,000 square feet.) 

In terms of property scholarship, I really haven't seen much on these.  There was a recent article on SSRN about the latent Commerce Clause problems potential in size cap ordinances.  But it would be interesting to see how state courts, especially, have dealt with these anti-big-box policies on equal protection grounds.

My colleague Juliet Moringiello mentioned that there was some interesting discussion at the recent ABA meeting of property issues that arise in Massive Multiplayer Online Games ("MMOGs").  Players in MMOGs have created real-world markets (apparently worth billions of dollars) for property/attributes/power/other stuff for use in the virtual world of MMOGs.  This creates a conflict between players and the creators of the games, who try to keep ownership of everything created in their virtual world through End User License Agreements.  South Korea and Taiwan have passed legislation making infringement of virtual property a crime, and South Korea's legislation gives the right to virtual property to the player, not the game creator.  Similar legislation is pending in China.  This would make a fascinating note topic, especially for a student familiar with MMOGs.  (Of course, playing time conflicts with writing time!).

On the adverse possession front, the European Court of Human Rights recently held that England's adverse possession law led to an unlawful taking of property.  This result seems bizarre to me, and a note discussing the case would be very useful.

Ben Barros

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August 11, 2006 in Recent Scholarship | Permalink | Comments (3) | TrackBack (0)

Thursday, August 10, 2006

Duhl on Property and Custom

Gregory M. Duhl (University of Tulsa - College of Law) has posted Property and Custom: Allocating Space in Public Places on SSRN.  Here's the abstract:

Custom predates Sir William Blackstone as a source of formal property rights in the English common law. But courts in twentieth-century America have rarely applied the doctrine of custom, and when they have done so, they have used Blackstonian custom inappropriately as a justification for recognizing public rights to private property. But despite the cry of some scholars, custom is not dead.

Custom offers a justification to protect rights of private individuals to public property, such as those of the lunch truck and cart vendors around the Temple University campus to their parking spaces, squatters to their shelter, and the rights of New Mexicans to the water in acequias. Such informal property regimes often adopt and enforce communitarian practices and usages, or social norms, and, in doing so, increase efficiency and egalitarianism. Courts and legislatures should not interfere with those regimes, and should use positive law, when necessary, to protect them. Doing so affirms democratic institutions and reduces individuals' reliance on the state and positive law for social justice.

Ben Barros

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August 10, 2006 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 9, 2006

Blumm, Becker, and Smith on Water Rights

Michael C. Blumm, David H. Becker, and Joshua D. Smith (all of Lewis & Clark Law School) have posted The Mirage of Indian Reserved Water Rights and Western Streamflow Restoration in the McCarran Amendment Era: A Promise Unfulfilled on SSRN.  Here's the abstract:

Western state water law has been notorious for its failure to protect streamflows. One potential means of providing the missing balance in western water allocation has always been Indian water rights, which are federal rights "reserved" from state laws. These federal water rights normally have priority over state-granted rights because they usually were created in the 19th century, well before most Western state water allocation systems were even established.

Over two decades ago, in 1983, Justice William Brennan assured Indian tribes that their reserved water rights would not be compromised by subjecting them to state court adjudications under the so-called McCarran Amendment, an appropriations rider given expansive interpretation by the Supreme Court in the 1970s and 1980s. Justice Brennan's belief that state courts — comprised largely of elected judges — could treat tribal claims evenhandedly, despite the high stakes and entrenched interests involved in Western water rights adjudications, has never been evaluated.

This study aims to begin to fill that gap by examining the results of six Western water right adjudications — five of which were decided by state courts — involving the Klamath, Wind, Yakima, Gila, and Snake Rivers, as well as Pyramid Lake. The results suggest that Justice Brennan's optimism was quite misplaced: in none of the cases studied did a court order restoration of streamflows necessary to fulfill the purpose of the tribe's reservation. Instead, the state courts created a number of new legal principles to limit or diminish tribal water rights, in an apparent effort to reduce the displacement of current water users.

The paper concludes that in the McCarran Amendment Era tribes must resort to extrajudicial means of restoring streamflows necessary to fulfill the purposes of their reservations. It shows how some tribes have employed settlements — and even state law — to achieve partial streamflow restoration, which is all that now seems possible in an era in which their claims are usually judged by skeptical state court judges who face reelections in which entrenched water users exert considerable influence.

Ben Barros

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August 9, 2006 in Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

CoOp Boards as Saviors of the Housing Market?

That's the interesting thesis of an article in today's New York Times.  The basic argument is as follows:

(1) New mortgage products like Option Arms and zero-down mortgages greatly increase the likelihood of a market crash because they encourage people to buy houses that they really can't afford.  This seems to me to be absolutely correct.  Many of these mortgage products are designed to have low initial payments or to have payments that increase dramatically if interest rates increase.  (I've discussed some of the problems with these mortgages before).  If interest rates go up at the same time housing prices are in decline, people with this type of mortgage (especially those with little or no equity in their homes) will be forced to sell.  This in turn will put downward pressure on the market, increasing the likelihood of a crash.

(2) By imposing strict financial qualifications for buyers, New York Co-Op boards protect the New York housing market by making sure that buyers aren't getting in over their heads.  I think there is a lot of truth to this -- you can't buy a New York Co-Op with zero down or if you aren't making enough money to be able to afford the home.

The downside of Co-Op boards is that they have a tendency to be arbitrary and annoying.  For those of you who have never lived in New York and haven't heard the horror stories, suffice it to say that one of the big selling points of my Condo building in New York was that it wasn't a Co-Op.  It seems to me, though, that a lot of the protection offered by the Co-Op boards could be achieved without all of their irritating qualities simply through covenants that can be enacted by any type of common-interest community -- Co-Op, Condo, or your basic suburban housing association.  A simple requirement of 80% or 90% financing would help at least a little bit.  Prohibition on option-ARMs or interest-only mortgages could also work.  Or a combination of the two:  you can only have an option-ARM or interest only mortgage only if you have X% equity in your home.  Of course, this type of restriction limits the number of potential buyers for a home, which could depress the price of the home.  I could see certain markets, though, where many buyers would be attracted by the protection to home values in a declining market offered by the covenants.

Ben Barros

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August 9, 2006 in Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 8, 2006

First Weeks of First Year Property

I've decided to change around the organization of the first part of my first-year Property class.  Having taught the course twice now, I don't think that the first possession/secondary possession organization used by D&K and a lot of other books makes much sense.  So here's what I'm going to try this year:

Unit 1:  Introduction to the Law of Ownership.

Unit 1A:  The Law of Personal Property:  Capture, Bailments, Finding and Gifts.  I like these subjects because they clearly present the issue of possession.  They are also a lot of fun -- I start the course with Pierson v. Post and Popov v. Hayashi -- and are great for illustrating the basics of common-law decisionmaking.

Unit 1B:  Conflicts Over the Possession and Use of Real Property:  Discovery, the Right to Exclude, and Nuisance.  I'll start this unit with Johnson v. M'Intosh, which I hope will be easier to teach after the students have been exposed to the malleability of the idea of possession through the personal property material.  I'll then do a short unit on the right to exclude, using Jacque v. Steenberg Homes, State v. Shack, and an excerpt from Lior Strahilevitz's “Information Asymmetries and the Right to Exclude.”  I'll complete the unit with nuisance.  As I've mentioned before, last year I moved the externality/economic analysis of law material from the beginning of the course to the section on nuisance, where it is most relevant.  Inspired by some discussion on the property prof's listserv, I've decided to keep this material together and to move it to the beginning of the class.  This will get the theory material back to the beginning of the course.  I also think that the problem of inconsistent land uses behind the law of nuisance compliments the material on possession in illustrating the problems with absolutist views of property rights.

Unit IC:  A Brief Look at IP and Property in the Human Body.  For IP, I focus on Kremen v. Cohen and Justice Kozinski's dissent in White v. Samsung, which is a good transition case to Moore v. Regents and property in the body.

I'll then do Landlord/Tenant, which the students find interesting and relatively intuitive, before moving on to estates in land, future interests, the RAP, and concurrent interests.

Ben Barros

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August 8, 2006 in Teaching | Permalink | Comments (0) | TrackBack (1)

More Monument Talk

Now this story from Birmingham, where there is a move afoot to change the name of Caldwell Park.

According to Joseph Bryant's story in the July 10 Birmingham News:

The park is named for Dr. Henry Caldwell, who designed Highland Avenue and was president of the Elyton Land Co., which settled much of the city. He also was an officer in the Confederate Army who owned slaves before the Civil War.

Former Birmingham City Councilman John Katopodis says that history doesn't merit honor, and he has proposed changing the park's name to recognize former City Councilwoman Nina Miglionico.

And this morning's Birmingham News brought a letter from the president of the Highland Avenue Homeowners' Association, which says:

There are many other, well-documented instances of Caldwell's accomplishments, which led to the rapid growth of Birmingham, including the fact he was one of three stockholders who personally bailed out the Elyton Land Co. from a large debt burden. To quote a Highland Park resident, Julie Williams, "he did what we all should do -- freed of outdated Southern traditions as symbolized by slavery, he embraced the new South and made a huge difference to the city."

This close on the heels of the talk of renaming Penny Lane.  Everywhere you look, there's more talk of monuments.  Reminds me I really need to finish my paper on monument law....

Alfred L. Brophy
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August 8, 2006 | Permalink | Comments (0) | TrackBack (0)

Monday, August 7, 2006

Craig on Coastal and Ocean Ecosystem Serices

Robin Kundis Craig (Florida State University College of Law) has posted Valuing Coastal and Ocean Ecosystem Services: The Paradox of Scarcity for Marine Resources Commodities and the Potential Role of Lifestyle Value Competition on SSRN.  Here's the abstract:

Ocean and coastal ecosystems provide about two-thirds of the ecosystem services that make up the world's natural capital. Despite that fact, the political will to adequately protect these marine ecosystems in marine protected areas and marine reserves generally does not exist. Instead, regulation focuses where the markets focus: on commercial commodities demands for ocean and coastal resources. This traditional commodities-focused market-and-regulatory regime has proven inadequate to protect functional marine ecosystems, as the history of wetlands loss and fishery regulation failure makes clear.

This paper argues that neither the commodities market nor a private property regime is likely to strengthen the political will to protect and preserve marine ecosystems as a whole. Nor, given the paradigm of inexhaustibility, the failure to perceive marine resources as scarce, and the lack of public understanding about the importance of marine ecosystem services, is strengthened political will likely to follow from the numerous scientific recommendations that the United States protect about 20 percent of its ocean resources in marine protected areas and marine reserves.

Instead, this paper explores the potential of new markets for the lifestyle values of marine resources amenities to serve as proxy for a direct public demand for intact and functional marine ecosystems. Specifically, the paper argues that new consumer demands for recreational opportunities, tourism, and eco-living may provide sufficient use competition -- specifically, competition between commodities and amenities users -- to translate the new economic demands into a political will to better protect marine ecosystems and the services that they provide.

I've noted before that I think that the ecosystem services approach provides an important perspective for considering land-use and natural-resources issues.  Oceans present uniquely difficult problems in this area, both because of international law and because many ocean-based natural resources (at least the living ones) move around during their life cycles.  Craig's paper is an important contribution to the discussion of these issues.

Ben Barros

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August 7, 2006 in Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)