Friday, August 17, 2007

Adler on Compensation for Conservation

Over at the VC, Jonathan Adler has a post on his new article arguing that paying compensation for regulatory takings would enhance conservation efforts, rather than undermine them as is conventionally thought.  He will be posting on this issue over the next week.  This is a very important issue, and I look forward to his posts.

The article itself is up on SSRN.  Here's the abstract:

The conventional wisdom holds that requiring compensation for environmental land-use controls would severely limit environmental protection efforts. There are increasing reasons to question this assumption. Both economic theory and recent empirical research demonstrate that failing to compensate private landowners for the costs of environmental regulations discourages voluntary conservation efforts and can encourage the destruction of environmental resources. The lack of a compensation requirement also means that land-use regulation is “underpriced” as compared to other environmental protection measures for which government agencies must pay. This results in the “overconsumption” of land-use regulations relative to other environmental protection measures that could be more cost-effective at advancing conservation goals. While any specific compensation proposal would present implementation questions, there are reasons to believe that a compensation requirement could improve environmental conservation efforts.

Ben Barros

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August 17, 2007 in Land Use, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Driesen on Infrastructure Commons

David M. Driesen (Syracuse) has posted An Economic Dynamic Approach to the Infrastructure Commons on SSRN.  Here's the abstract:

This brief essay comments upon and extends Brett Frischman's idea of the infrastructure commons, i.e. that certain commons resources function as infrastructure. After suggesting some refinements of the infrastructure commons theory, this essay shows how an economic dynamic approach to law (see David M. Driesen, The Economic Dynamics of Environmental Law (MIT Press 2003) can help strengthen the case for proper management of the infrastructure commons, helping bolster the case for preserving the commons and identifying some of its limitations. The essay, like Professor Frischman's original article, applies infrastructure commons theory to both environmental and intellectual property resources.

Ben Barros

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August 17, 2007 in Intellectual Property, Natural Resources, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Puskas on Measure 37's Federal Law Exception

Rebecca L. Puskas (Boston College) has posted Measure 37's Federal Law Exception: A Critical Protection for Oregon's Federally-Approved Land Use Laws on SSRN. Here's the abstract:

Ballot Measure 37, a property rights initiative passed by Oregon voters in November 2004, requires Oregon governments to compensate landowners for any reduction in the value of real property due to land use regulation or else to waive the offending regulations. This Note addresses the scope of an important exception to Measure 37: the law does not apply "to the extent that the land use regulation is required to comply with federal law." Many federal environmental laws, some with significant land use implications, involve a partnership approach called cooperative federalism where federal agencies set broad goals and states are responsible for on-the-ground implementation. Measure 37's federal law exception thus raises the question of whether Oregon's state and local governments have a continuing obligation to enforce land use regulations administered under such cooperative frameworks because they are "required to comply with federal law." This Note answers that question in the affirmative. It surveys Measure 37's federal law exception in its textual, regulatory, and constitutional contexts and concludes that the most tenable in-terpretation is a broad one: Measure 37 does not apply to land use regulations in federally-approved plans and programs that represent Oregon's efforts to comply with federal law. This interpretation is re-inforced by a clarifying definition of "federal law”" in Ballot Measure 49, an initiative subject to a November 2007 special election vote.

Ben Barros

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August 17, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 15, 2007

YIMBY – Yes in Mickey’s Backyard?

For those of you getting ready for your property classes this semester, here’s an interesting story to bring up when you cover zoning law.

The city of Anaheim (CA), home to Disneyland, is embroiled in legal issues over the use of a 26-acre property located near property owned by Disney.  As reported by the Washington Post last week (here), the 26-acres area, similar to Disney's property, has been zoned for tourist development since 1994.  The Anaheim City Council, however, voted a few months ago to allow a developer to build 1,500 housing units, including 225 subsidized housing, on the property.  According to the NY Times (here), the site is a mile from Magic Kingdom, ½ mile from Disney’s California Adventure, and directly across an 88-acre area that is the potential site of a third Disney theme park.  The LA times article today on this story includes a map of the proposed housing development and possible new theme park.

As in all property cases, the story here involves property disputes among various parties.  Disney filed a lawsuit in February to prevent the project from going through and protect what it views as its property interests in keeping the area “an attractive place for tourists.”  Disney also has the support of a coalition of residents, Save Our Anaheim Resort.  If the initiative is approved by voters, it would give residents the right to vote on any new housing development in the area. 

To counteract this initiative, supporters of the housing development (backed by SunCal, the developer) are trying to get an initiative on the ballot that would give voters control over the establishment of a third theme park.  Then there are advocates for affordable housing – YIMBY (Yes in Mickey’s Backyard) -who argue that the housing development is necessary, particularly affordable housing.  The median home price in the area is $645,000 and rent for a one-bedroom apartment costs $1,400 a month.  Interestingly, if the latter initiative is placed on the ballot, there is the possibility of both initiatives being passed.  Both would give voters the ability to approve the use of the properties owned by Disney and the City (or SunCal if the contract for sale of the 26 acres goes through).

Rose Cuison Villazor

August 15, 2007 in Land Use, Teaching | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 14, 2007

Mary Bilder on Teaching Rule Against Perpetuities

In the spirit of propertyprof's effort to help with the teaching of property, I asked Mary Sarah Bilder (who is a non-blogger and is also, by the way, author of this terrific book), if she would quickly write up her outline for her one-hour class on the rule against perpetuities.  She uses Dukeminier.

I think it is useful to teach RAP as a way to explain that Anglo-American law has attempted to put some limits on dynastic wealth and to emphasize how words matter in legal drafting. Here is one way to teach the RAP in 60 minutes at a first-year property level. My apologies and thanks to the many secondary sources from which this approach has been drawn (including, in particular, the wonderfully useful Mark Reutlinger, Wills, Trusts, and Estates.)  This approach may not have every member of the class able to work out every RAP problem, but they will get the idea and get the type of basic problems that they might actually by mistake draft into a document. (It also will mean that people are a bit cautious before they blithely agree to write wills for friends and family in later life.)

The class has 5 parts

1. Big Picture
2. The Rule
3. How to Apply it
4. Patterns
5. Reform

1. Big Picture: Explain the Duke of Norfolk's Case: You can tie up your property through the lifetime of people you know and the minority of the next generation. Briefly discuss pros/cons.

2. Give Rule (Gray version): go over interests created, future interests to which the rule applies (you need to have explained these well in a prior class and have done an equally good job with the concept of vesting), what to do if an interest violates rule.

3. How to Apply it: Explain that it is a rule against remoteness of vesting; that the hard part to understand is the part about "or fail"; explain that what one is looking for are interests that might vest after the period (give a couple examples -- I often use the idea of a one-episode reality show -- some will make it; some won't but you'll know by the end vs. the soap opera); explain that one does this by searching for the validating life (or alternatively a nonvalidating life); explain that it will always be a likely suspect--someone who affects the contingency (b/c everyone else can die); explain that a good trick is to always try and kill off everyone alive at the time of the conveyance; explain to always beware vested remainders (b/c RAP doesn't apply to them and so they are valid!).

    I have my students do the following steps:

    1. Classify all interests

    2.  Which ones are subject to RAP?

    3.  ASK: When will the cont. rem., etc. vest? (-what event is necessary for it to vest?)

    4.  Is there a validating life--look for some connection between the necessary event and the person + 21 years OR prove it could vest after

    5.  If no validating life, then interest is bad--cross it out and relabel the interests

4. Patterns -- basically all the RAP problems that I think a first-year student needs to understand fall into one of three patterns:  (You should have a couple examples for each pattern and work over it in class.)

    1. The problem of remote vesting (these are the executory limitations problems with state charity-to-charity exceptions)

    2. Taker of the interest is the VL for herself -- these are the patterns where the taker is VL, group of takers are VL, people who affect the contingency are the VL, savings clauses

    3. Afterborn people problems -- these all involve the trick of the problem using a class word (child, spouse, widow, grandchild) and that person might be an afterborn: child at 25 and grandchild in will vs. deed are good problems.

5.  Reform: Explain state reforms (which all make a lot more sense if you have some grasp of the Rule) and then end with some discussion on the dynastic trust situation because lawyers can learn complicated ways in which to keep dynastic wealth together over generations but apparently can't learn the RAP

Al Brophy
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August 14, 2007 in Teaching | Permalink | Comments (0) | TrackBack (0)

Seidenfeld on Legislative Responses to Kelo

Mark Seidenfeld (Florida State) has posted In Search of Robin Hood: Suggested Legislative Responses to Kelo on SSRN.  Here's the abstract:

This article is a short essay that uses an economic analysis of the need for and potential abuses of eminent domain used to transfer property from one private entity to another. It adds to the current literature by suggesting that states can establish mechanisms for evaluating and compensating current landowners for the idiosyncratic value they place on their property, and can establish administrative procedures and judicial review essentially to require local governments to auction the opportunity to obtain the property to the private entity that will provide the greatest benefit to the jurisdiction.

Ben Barros

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August 14, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Monday, August 13, 2007

Advice to Law Journals: Part 2

It's been a long time since I last wrote about advice to law reviews.  Following up on my promised series, here's installment two, just in time as student editors get back to school.... 

2.  Involve faculty in the selection of note topics and their writing
    One of the great difficulties for students is selecting a topic to write on; a good topic's critical.  In fact, I think a good idea is indispensable--and if you have a good idea, even if the execution leaves something to be desired, you'll at least have something that will attract an audience and maybe promote some further work.  You're going to spend a lot of time working on a note and it's good to have something workable from the start.  Faculty often have an excellent idea of whether a topic's workable and can help from shaping the initial questions through the research and writing.  At the Alabama Law Review, each student is required to work with a faculty member in the development of the note.  It's nice to have someone who has a sense of how manageable a topic is, how to scale down unwieldy projects, and how to weld together questions and research and how to back out of one-way alleys.

Of course, related to this is the idea that students have to actually take the advice they're given.  As a student--and more so as a faculty member--I haven't always taken good advice, though I try to take as much of it as a I can recognize.  So perhaps a corollary piece of advice here is: work with faculty and listen to them.

Alfred Brophy
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August 13, 2007 in Law Schools | Permalink | Comments (1) | TrackBack (0)

Should We Still Teach the RAP?

So asks Ilya Somin at the VC:

In legal circles, the RAP is virtually a byword for abstruse complexity, and is traditionally one of the most hated parts of the law school curriculum. Forcing law students to learn it is almost a form of hazing, much like making them learn the Blue Book.

But that's not why I'm considering dropping it. I think it should probably be dumped from introductory property courses because virtually every state and most foreign common law jurisdictions have essentially abolished it - either by providing for the creation of "perpetual trusts" or by enacting statutes suspending its operation for 90 years after the death of the previous owner. The RAP takes a good deal of time to read about and explain, and causes endless frustration for both students and property professors. I suspect that that time and energy can be better spent on more productive activities - much like the time we spend learning and applying the Blue Book.

Ilya's point about the changes to the RAP is an important one.  Pennsylvania just abolished the RAP for newly created interests (wait-and-see will continue to apply to pre-2007 interests), and I'd bet that the RAP will be abolished completely within the next twenty years.  Many of the statutory changes, however, still involve some application of the common law rule, which suggests that keeping the RAP in first year Property is a good idea.  The RAP is also something that might be hard to grasp without having some exposure to it in law school, and the Rule does come up in some odd contexts.  On the other hand, teaching it well takes at least four hours of class time.  With time scarce, I wouldn't be surprised if the RAP is increasingly cut out of Property.

Ben Barros

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August 13, 2007 in Future Interests and the RAP, Teaching | Permalink | Comments (3) | TrackBack (0)