Friday, October 12, 2007

Right of Public Access to the Beach vs. Right to Keep Beach Home

Here's an interesting story from Texas.  Several owners of beach houses in Surfside Beach, Texas face the possibility of having their homes destroyed in order to ensure that the public has access to the beach.  The 1959 Texas Open Beaches Act (information found here) established a public easement on all beaches such that Texas beaches must be accessible to the public.

Apparently, hurricanes have led to the erosion of lands on which the houses are located and the state wants to replenish the beach.  In order to do that, the government says that the private beach houses have to be destroyed or moved.  The state told homeowners that they can apply for reimbursement of up to $50,000 for the cost of destroying or moving their homes.

Homeowners have argued that the government has exercised its eminent domain powers and must offer them with fair market value for their homes. The state countered that, "The government is not taking anyone's house. Mother Nature is." 

Click here for the rest of the story.

Rose Cuison Villazor

October 12, 2007 | Permalink | Comments (0) | TrackBack (0)

Thursday, October 11, 2007

Schwarzenegger Signs "Dead Celebrities Bill"

According to NPR, the California governor has just signed into law the bill I referred to in my previous posting about Marilyn Monroe.  Thanks to my colleague Rose Villazor for forwarding me the story.  It will be interesting to see if this ends the dispute over the rights to Marilyn's images.

Josh Tate

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October 11, 2007 | Permalink | Comments (0) | TrackBack (0)

More on Landscape Art

Quidor_2 We're on fall break in Tuscaloosa, so I have a little more time than usual.  Been thinking about the relationship between landscape art and property again recently.  Partly this is because it's October and I need to get my Halloween post pulled together, so I've been looking for some images of ghost stories where property is central.  That, of course, leads me to think about the Legend of Sleepy Hollow, where hierarchy is central.  Not so much about property, but who's there first (a key issue in property, of course).  And also to John Quidor's evocative painting of the "Legend of Sleepy Hollow," which is in the Smithsonian.

Quidor_rip_van_winkle_ngagov The National Gallery of Art also has Quidor's Rip Van Winkle, another charming landscape painting based on the short story of Quidor's friend Washington Irving.  Both Legend of Sleepy Hollow and Rip Van Winkle are attempts to come to terms with a wildly changing American culture.  I'm increasingly thinking that the way to talk about legal change in the antebellum United States is through the trope of progress.  Of course, "progress" had different meanings depending on whom you spoke with.  But it's a great organizing principle--and it suggests how law correlates with progression in the physical sciences and with economic and moral thought.  So we expect change and embrace it, even as we find it destabilizing.  Writers on law from William Sampson to Emerson to Story to Thomas Dew all recognize that legal rules are evolving and ought to evolve--that they are bound up with their social and historical context.  What is controversial is when there ought to be legal change and in what direction.  Thus, we get pitched conflicts in cases like Charles River Bridge.  Is there a property right there?  And if there is, how much should we protect it?


But I've also been working away on some literary addresses and again am struck by how often they reference property.  Try George Robertson's address to the Deinologian Society at Transylvania.  He speaks of the evils of slavery, then turns away to talk about the bounties of civilization.  Robertson employs images of landscape:

But these slight blemishes at which we have just glanced—what, are they in the sublime prospect which this day opens. ;o our view? They are but the spots on the sun; and though the microscopic vision of misanthropy may magnify them, they are lost in the great panorama which our country presents to the eye of an instructed and comprehensive patriotism. Could Boone and Harrod and Logan —when, in this once "land of blood," they first trod in the tracks of the Indian and the Buffaloe—have dreamed that what we now behold in this smiling West, would so soon have succeeded their adventurous footsteps, how would such a vision have cheered them amidst tho solitude and perils which they encountered in aiding to plant civilization in the wilderness! But oh! the pilgrim band of Plymouth Rock; the offcast germ of the once leafless, once sapless, tree of light—what holy joy would theirs have been, had their last lingering glimpse of the green fields of their childhood been gilded with a hope, that the then house-less solitude of their refuge would, so soon, or ever be transformed into a vast cultivated garden, the abode of that liberty, religion and law, for which they had abandoned forever the comforts and endearments of the homes of their birth?

The image above right is George Caleb Bingham's Daniel Boone Escorting Settlers Through the Cumberland Gap, which is from Washington University's Gallery of Art (though I first saw it in person and was captivated by it, I think, in 1991 at the National Gallery).

Images of landscape, which help connect people to land and to the ideas of liberty and property.  Great stuff.  And I hope the makings of some fun, further speculation on the relationship between property law and landscape art. 

Alfred L. Brophy
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October 11, 2007 in Property Theory | Permalink | Comments (0) | TrackBack (0)

Arnold on Land Use

Tony Arnold (University of Louisville) has posted The Structure of the Land Use Regulatory System in the United States on SSRN.  Here's the abstract:

The land use regulatory system has been criticized for causing or failing to solve social problems and for perceived inherent defects, such as inefficiency, inequality, and environmental harm. These criticisms fail to understand the land use regulatory system in the United States as a dynamic, functional, adaptive system.

This paper systematically analyzes the: 1) functions; 2) location and scale; 3) components; 4) processes; and 5) values of the land use regulatory system in the United States. If we are to improve our land use practices to be fairer, more efficient, and more ecologically responsible, we must understand how land use planning and regulation function and change over time.

Particular attention is given to the role of land use regulation as a mediator between people and places, between communities and power, and between freedom and boundaries. Additional attention is given to the broad array of forces shaping land use decisions, the “thinness” of land use law as a set of rules and limits (contrasted with its role as a source of tools, authority, and discretion), and the “patchiness” of land use regulatory authority in the United States.

This paper also examines a specific issue of law and policy: the extent to which the land use regulatory system can value and conserve ecosystem services – the humanly beneficial services that nature provides. The paper explores both barriers to and opportunities for accounting for ecosystem services in land use planning and regulation.

Ben Barros

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October 11, 2007 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 10, 2007

Marilyn Monroe's Legacy

For a woman who died 45 years ago, Marilyn Monroe has been in the news a lot lately.  On the one hand, a dispute is raging in California and New York over who has the rights to images of Marilyn, reported in this story (hat tip:  Wills, Trusts, and Estates Prof Blog).  The California legislature recently passed a bill that would make a celebrity's right of publicity bequeathable by will even if the celebrity died before rights of publicity were recognized by the courts in California.  The bill awaits the signature of California's governor, Arnold Schwarzenegger, who has personal experience with rights of publicity.  On the other hand, the BBC reported last week that several "lost" dresses worn by Marilyn are being exhibited in the U.K., including the famous dress Monroe wore in the publicity shot for The Seven Year Itch while standing over a New York subway grating.  So, if the California bill is signed, those who don't want to pay for the photo rights can go to Britain to see the dress instead.

Whether the right of publicity should be bequeathable is an interesting question.  On the one hand, if the reason for recognizing the right of publicity is that a celebrity's persona is an extension of her personhood, then it isn't obvious that such a right should continue to be protected after her death.  But if the right of publicity is meant to encourage people to work hard and become famous, so that they can reap the benefits of the persona they develop, then that same incentive argument might justify a power of testation over the right of publicity.  There is also an interesting constitutional issue here.  The Supreme Court held in Hodel v. Irving that a complete abrogation of the power of testation may be an unconstitutional taking.  Given that California and several other states recognize a common-law right of publicity, in addition to a statutory right, can the state take away the power to bequeath this publicity right by will without compensating the holder of the right?

The museum exhibition of Monroe's dresses raises another question.  In her will, Monroe bequeathed her "personal effects and clothing" to her acting coach, Lee Strasberg, "it being my desire that he distribute these, in his sole discretion, among my friends, colleagues and those to whom I am devoted."  In fact, however, as explained in a recent article by Alyssa DiRusso, He Says, She Asks:  Gender, Language, and the Law of Precatory Words in Wills, Strasberg never distributed any of Monroe's personal effects to anyone; in fact, he requested that some of her possessions be returned by a colleague to whom she had given them.

There is no indication that any of the dresses on exhibit in the U.K. were part of the bequest to Strasberg.  But suppose that they were.  Should Strasberg have a legal obligation to distribute them to her friends and colleagues?  DiRusso argues that women tend to use precatory language (deemed nonbinding) in wills where men would issue a binding command.  Here is the abstract of her article:

Precatory language is often insufficient to create a legally binding trust. Men and women choose different language to express themselves. What is the connection between these two statements?

This article reviews the current status of the law of precatory language, concluding that whether a will including precatory words (such as wish, ask, or recommend) will be construed to create a trust is at best a hit or miss proposition. The article continues to explore the psychology literature on differences in language ability and expression between men and women. Finally, the article ties these two disciplines together, analyzing original empirical data collected from 324 subjects and concluding that women are indeed more likely to use precatory language than men. The article concludes by noting the impact our heightened understanding of gender and precatory language has for courts, legal scholars, and practicing attorneys.

Should the court construe Monroe's words differently because she is female?  This is not an easy question, particularly when the will was drafted by an attorney rather than by the testator herself.  But DiRusso is right to call attention to the law's apparent blindness to gender differences in language.

Continue reading

October 10, 2007 in Intellectual Property | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 9, 2007

Dagan on The Limited Autonomy of Private Law

Hanoch Dagan (Tel Aviv University) has posted The Limited Autonomy of Private Law on SSRN.  Here's the abstract:

The relationship between private law adjudication (typified as the bipolar encounter between plaintiff and defendant) and social values usually associated with much broader settings (such as the pursuit of distributive justice by state legislation) is a perennial concern of legal theory. The task of this essay is to strike the middle-ground between the voices of private law autonomy and the total instrumentalization of private law for any desirable value, purpose, or state of affairs. I claim that neither autonomist theory nor its instrumentalist counterpart provides a satisfactory account of private law. Autonomist theory is implausible because private law rests on a thick perfectionist view of society and hence cannot claim to be neutral vis-à-vis social values. But unlimited instrumentalism is also misguided because, as autonomists insist, the bipolar structure of private law litigation indeed entails certain normative constraints. These two propositions yield the main conclusion of this essay: the normative infrastructure of any private law doctrine should be responsive both to (minor) bipolarity constraints on the one hand, and to social values appropriate to the pertinent category of human interaction on the other. The essay further explores the implications of this conclusion for three specific doctrinal issues: marital property, monetary remedies for breach of entitlements, and the right of entry (into property).

Ben Barros

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October 9, 2007 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, October 7, 2007

Biancalana on the Writs of Entry

The Fall 2007 issue of Law and History Review has just been published, and it includes a noteworthy article on medieval English property law by Joseph Biancalana, entitled The Origin and Early History of the Writs of Entry.  Here is a summary of the article by David Tanenhaus, the editor of the Review:

In [this] article, Joseph Biancalana examines the origins and early history of the writs of entry, which were among the earliest writs to be invented after the legal reforms of Henry II.  The distinctive feature of a writ of entry was that it challenged what plaintiffs thought was the basis of defendant's claim to disputed land.  A writ of entry alleged that a defendant "had no entry" into the land other than by a transaction or taking that did not authorize him to hold the land.  Although writs of entry were invented to serve as supplements to the possessory assizes of novel disseisin and mort d'ancestor, it was not clear how to limit their substantive scope so that they would not become substitutes for the writs of right.  The solution was to limit the writs to three degrees and thus limit the generations of inheritance that could be included within the writ.  That precarious solution did not fare well as markets for land developed in the thirteenth century.  The degrees increasingly functioned to limit the number of conveyances linking defendant to entrant, which had nothing to do with the reason for the limitation to three degrees.  As Biancalana concludes, the authorization of writs of entry in the post in 1267 accommodated writs of entry to the market for land.

Joseph Biancalana, the Judge Joseph P. Kinneary Professor of Law at the University of Cincinnati, is the author of the leading work on the development of the fee tail.  His latest article is an important contribution on a topic that has engaged prominent English legal historians such as Maitland, Milsom, and Hall, and may significantly change our understanding of the early history of the common law of property.

Josh Tate

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October 7, 2007 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)