Saturday, November 17, 2007

AALS Property Section Newsletter

This year's edition of the AALS Property Section Newsletter is now available.  Thanks to Carol Brown of UNC for putting it together.

Ben Barros

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November 17, 2007 in Conferences | Permalink | Comments (0) | TrackBack (0)

Friday, November 16, 2007

Davidson on Takings and Equality

Nestor Davidson (U. Colorado) has posted The Problem of Equality in Takings on SSRN.  Here's the abstract:

The Supreme Court is finally beginning to bring clarity to the law of regulatory takings and in the process is bringing to the fore a previously submerged theme in the jurisprudence: regulatory takings as a question of distributional justice and horizontal equity. This Article argues that this equality dimension is fundamentally problematic. On a theoretical level, privileging norms of equality engrafts political process rationales for heightened scrutiny onto groups defined solely by the differential burden of a regulation, an exercise in circularity. Equally troubling is the inverted political economy of regulatory takings claims that is likely to result: the greatest judicial protection is provided to those most able to navigate the political system. And from a doctrinal perspective, an overly robust equality inquiry housed in the Takings Clause is inherently indeterminate, warping not only the fabric of takings but also of equal protection jurisprudence. Accordingly, this Article argues that concerns about the uneven distribution of regulatory burdens should sound not under the Takings Clause but rather under the Equal Protection Clause, with its deferential standards for the review of ordinary economic and social regulation. Excising the equality dimension of regulatory takings would properly leave the Takings Clause as a guard against those rare regulatory actions that are functionally equivalent to the direct exercise of eminent domain. The result would be a simpler, clearer, and ultimately more egalitarian law of takings.

I read an earlier draft of this paper, and it is outstanding.  A must-read for anyone interested in takings generally, and the more specific issue of where the Supreme Court's takings jurisprudence might go post-Lingle.

Ben Barros

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November 16, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Van Houweling on The New Servitudes

Molly Shaffer van Houweling (UC Berkeley - Boalt) has posted The New Servitudes on SSRN. Here's the abstract:

In the age of electronic commerce, consumers routinely acquire intangible products without engaging in any direct human interaction. These products—computer programs, digital music, etc.—often arrive bearing terms that purport to limit the sticks in the consumers' bundles of rights in ways that depart from the background limitations imposed by intellectual property law. For example, a consumer who has downloaded a computer program from the Internet might be presented with a screen of text imposing myriad restrictions on how the program may be used; installation commences only when the consumer clicks “I agree.” Courts in the United States have increasingly enforced such restrictions—labeling them “click-wrap licenses” and applying to them the same contractual concepts that govern face-to-face exchanges of promises. Similar licensing approaches—albeit with quite different substantive terms—have been extended into the realms of “free software” and “free culture.”

The law of tangible property offers a different lens through which to view these contemporary techniques for distributing and controlling intangible products. When someone buys land that is purportedly subject to use restrictions imposed by a prior owner, those restrictions are sometimes enforced as “servitudes”—non-possessory property interests that attach to land and impose their restrictions and obligations on generation after generation of landowners. Like click-wrap licenses and similar techniques of the digital age, use restrictions imposed by servitudes bind remote purchasers with whom the beneficiaries of the restrictions may have no direct relationship. They do not arise from any human communication, but instead “run with” the burdened assets and automatically bind current possessors.

Although servitudes are a familiar feature of contemporary real property law, they have long encountered judicial skepticism that has generated a host of doctrinal complications. This skepticism has been even more pronounced in the context of servitudes applied to items of tangible personal property. But it finds little expression in the current contractual approach to interpreting licenses attached to intangible products.

In this article I develop a comprehensive account of the evolving jurisprudence of servitudes as applied to both land and personal property, identifying the sources of traditional servitude skepticism in order better to evaluate the new generation of running restrictions on intangible informational goods. I apply the lessons I draw from the old servitudes to paradigmatic examples of contemporary licensing practices—including Microsoft end-user license agreements, the Free Software Foundation's General Public License, and Creative Commons licenses. The lessons I draw from the old servitudes bring the problems—and also the promise—of these new servitudes into sharp focus, providing a new framework within which to analyze emerging electronic commerce practices while contributing doctrinally- and historically-grounded insights into the ongoing debate about the proper relationship between intellectual property and the public domain.

Ben Barros

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November 16, 2007 in Intellectual Property, Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, November 15, 2007

Coordinating Law and Society Panels

The deadline for paper and panel proposals for next year's Law and Society Conference (May 29-June 1 in Montreal) is fast approaching.  Submissions are due December 12, and should follow these guidelines.  For a host of reasons, it is better to submit a panel proposal rather than a solo paper.

For those who are interested in participating at the conference, and have not yet formed a panel, I would be happy to play matchmaker and help form panels.  If you are interested, please e-mail me as soon as possible with a short description of your topic.  I'll collect the topics and try to put people together.

Ben Barros

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November 15, 2007 in Conferences | Permalink | Comments (0) | TrackBack (0)

Post-Lingle Substantive Due Process Case

Over at Law of the Land, Patty Salkin has a post on a recent Ninth Circuit decision in Crown Point Development, Inc. v. City of Sun Valley.  The Circuit had previously barred land-use substantive due process claims, under the reasoning that if a land use regulation did not substantially advance a legitimate interest, it was a taking.  So under the prior Ninth Circuit law, a substantive due process claim would be replaced by a takings claim.  This reasoning was always suspect, but is clearly wrong after Lingle.  So in Crown Point, the Ninth Circuit has correctly recognized that a landowner can maintain a substantive due process challenge to a land-use regulation.

Ben Barros

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November 15, 2007 in Recent Cases, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 14, 2007

Adverse Possession in the News

We’ve been having an interesting dust-up here in Boulder about adverse possession – a local couple prevailed on what seems to be a pretty ordinary adverse possession claim and a local columnist blasted the decision as an example of how out of control the Boulder “progressive” community is – “where common sense is occasionally as rare as a conservative's view of private property rights,” sparking a backlash that made it all the way to Fox News.  And the New York Times a few days ago highlighted Gov. Spitzer’s veto of a bill in New York that would have barred adverse possession “if the person making the claim had ‘actual knowledge’ that the property was owned by someone else,” according to the Times.  Who knew AP would be such a hot topic again?

UPDATE:  Eduardo Penalver has more thoughts on the Boulder case.

Nestor Davidson

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November 14, 2007 in Real Estate Transactions | Permalink | Comments (2) | TrackBack (0)

Takings Dispute Between Ranchers and the Military

A few days ago, the Washington Post had an interesting article on an eminent domain dispute between ranchers and the military.  The story has led to some discussion between Ilya Somin and Kaimi Wenger about some takings issues, including compensation for subjective value.  Ilya's first post is here; Kaimi's comment is here; and Ilya's response is here.

Ben Barros

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November 14, 2007 in Takings | Permalink | Comments (0) | TrackBack (0)

Monday, November 12, 2007

Vietnam Veterans' Memorial: Memory, Honor, and Interpretation

Vietnam_war_memorial Today is monument day at propertyprof.  A reader sent this story from USA Today along about a proposed underground “center” beside the memorial wall that would inform visitors about the war.

Propertyprof readers may be interested in this excerpt, touching on a function of monuments and their difference with museums:

Judy Scott Feldman of the National Coalition to Save Our Mall says the center would set a precedent that would encourage other groups to push for interpretive adjuncts to their monuments. "We are mistaking the power of our memorials with the educational value of our museums."

The public domain image of the Vietnam Veterans Memorial is from our friends at Wikipedia.

Alfred L. Brophy
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November 12, 2007 | Permalink | Comments (0) | TrackBack (0)

Naming rights: University of California--Irvine

Been reading (thanks to Brian Leiter) about the University of California-Irvine's Donald Bren School of Law.  Among the interesting aspects of Bren's agreement with the school is this:

Signs on law school buildings must read "Donald Bren School of Law" and be at least twice the size of the building name. Bren's must be the largest and most prominently displayed name on the building, according to the agreement.

I take it that is enforced as a contract, rather than as an affirmative covenant.

Al Brophy
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November 12, 2007 | Permalink | Comments (0) | TrackBack (0)

More Monuments: Repairing or Replacing the Tomb of the Unknown Soldier


In honor of Veterans Day, the New York Times has a video about the dispute over cracks in the marble at the tomb of the Unknown Soldier.  Should the marble, whose cracks have been steadily growing larger, be repaired or replaced?  This is yet another example of the controversies over monuments and their meanings.

Image: The panoramic of Missouri Gold Star mothers meeting with General Pershing at the Tomb of the Unknown Solider in 1930 is from our friends at the Library of Congress.

Alfred L. Brophy
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November 12, 2007 | Permalink | Comments (0) | TrackBack (0)