Friday, December 21, 2007

Private Property v. Beach Access in Hawaii

Kaaawa_beach_walk Reader David Peterson pointed me in the direction of a series of news articles on an interesting beach access dispute in Hawaii.  From an overview article in the Star Bulletin:

Some beachgoers are upset that a gate was installed on a private road in Kailua that blocks access to Kailua Beach Park.

A "no beach access" sign was placed at the entrance of L'Orange Place when the gate was installed a month ago. . . .

Some mornings, Dianne Price would find used condoms on her mock orange bushes.

Some nights at 2 a.m., large groups would walk down her lane to build bonfires on Kailua Beach.

Those and other concerns led the residents of L'Orange Place to put up a locked gate blocking their private road. That was a month ago.

Some beachgoers are now complaining about the loss of convenient access.

"It seems, at best, unneighborly," said Ben Willkie, a Kainui Drive resident who had used the route at least once a week to head to the beach with his wife, Veronica, and 5-year-old son. . . .

"There are a lot of people alarmed by this," said Robert Moncrief, a resident since 1970. "I think this whole thing is a travesty. ... They're excluding all these people."

The Moncriefs said they fear more gates will be installed at other private side streets along Kalaheo Avenue, further blocking access to the beach.

"It's going to start this chain of reaction of exclusivity," he said.

City Council Chairwoman Barbara Marshall, who represents District 3 (Waimanalo-Kaneohe), said that while it is frustrating for beachgoers, the residents are within their rights.

"It's a private beach access owned by the adjacent homeowners," she said.

Homeowners who allow public access receive a tax break. L'Orange Place residents had opted to pay additional taxes when the gate was installed, she added.

There is another public access route about 200 yards away, near Kailuana Street.

The dispute is discussed in this op-ed, and in this follow-up article.  Some useful discussion of the issue can also be found at the Beach Access Hawaii website.  I'll defer substantive discussion to our resident Aloha Jurisprudence experts, Al Brophy and Carl Christensen.

Ben Barros

Photo from Wikipedia Commons

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December 21, 2007 in Land Use | Permalink | Comments (3) | TrackBack (0)

Moringiello on Estates in Virtual Property

Juliet Moringeillo (Widener University School of Law) has posted Towards a System of Estates in Virtual Property on SSRN.

Virtual worlds such as Second Life have received a lot of press in the United States recently. As individuals and businesses participate in these virtual worlds, questions arise regarding the application of existing laws to their virtual world transactions. Many questions have arisen regarding the property rights of participants in virtual worlds, and a Second Life member recently sued Linden Research, the company that developed Second Life, alleging that Second Life converted his virtual property. The questions regarding the legal nature of virtual world assets tend to mirror the questions regarding intangible rights generally, as courts have tended to struggle over whether these rights are property rights or contract rights. In this paper, I propose that the principle of numerus clausus be applied to virtual property, so that courts faced with disputes over such assets will have mandatory property forms to which to resort. Such an approach would limit the ability of vendors of such rights to customize them through their contracts, which are commonly embodied in electronically-presented standard forms.

Ben Barros

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December 21, 2007 in Intellectual Property, Property Theory, Recent Scholarship, Virtual Property | Permalink | Comments (0) | TrackBack (0)

Property Section Events at AALS

The Property Section will have two panels at this year's AALS Conference in New York.

First, on Saturday, from 3:30 - 5:15 p.m., we will have a panel on the Biology of Property Law.  The Section business meeting will immediately follow this panel.  Second, on Sunday, from 9:00 a.m. to 10:45 a.m., we will hold a junior scholars works-in-progress workshop.

Also, don't miss the Property Section Breakfast on Saturday morning at 7:00 a.m.

More details on the panels are in the Section Newsletter.

Ben Barros

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December 21, 2007 in Conferences | Permalink | Comments (0) | TrackBack (0)

Property Rights in China

Over at Balkinization, Lauren Hilgers has a fascinating post on recent development in formal and informal property rights in China.

Ben Barros

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December 21, 2007 in Property Theory | Permalink | Comments (0) | TrackBack (0)

Thursday, December 20, 2007

Real Estate Transactions Panel at AALS

Here's the info on the Real Estate Transactions panel at AALS in New York.  I'll post the details of the Property Section panels tomorrow; if you can't wait, the info is in the Section Newsletter.

Title: Negotiating the Mega-Rebuilding Deal at the World Trade Center: Teaching Teachers to Teach Students

Time and Place: Friday, January 4, 2008; 10:30–12:15, New York Hilton, Regent Parlor, second floor


— Mr. Alex Garvin, President and CEO, Alex Garvin & Associates, Inc., and Adjunct Professor of Urban Planning, Yale University

— Meredith J. Kane, Esq., Paul, Weiss, Rifkind, Wharton & Garrison

— Janno Lieber, Esq., Senior Vice President, World Trade Center Properties, LLC

— Prof. Lance Liebman, Columbia Law School

— Martin D. Polevoy, Esq., DLA Piper


The rebuilding of the World Trade Center site is one of the largest, most difficult, and most emotionally fraught transactions in American history. In addition to the usual stakeholders found in any complex public-private transaction (two states and one city, the developer, the investors, the architect, the contractors, the prospective tenants), the World Trade Center redevelopment introduces additional parties unique to this particular tragedy, including the victims of the attack and their families, first responders, neighborhood residents, and insurers.

This transaction would be fascinating to any observer. But to the law professor, this is a teaching opportunity and not just an interesting deal. Speakers representing various interests in the Ground Zero rebuilding project will address two principal questions. First, they will discuss specific issues that have arisen during the negotiation and documentation process, with emphasis on those that are unique to this particular project. Second, they will provide illustrations of the “teaching moments” they have observed throughout the process. Law professors who teach courses in any business subject will benefit by hearing experts demonstrate the opportunities this transaction presents for professors to help law students understand legal complexity.

Ben Barros

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December 20, 2007 in Conferences | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 19, 2007

Advice to Law Journals, Part 19

National_archives_listening O.K., so the year's almost out; that means, it's really past time to finish up this series on advice to law journals.  Back in June I announced it would be about 18 parts (more or less)--and I've added a few, but I'm now just a few of posts away from finishing.  And I intend on finishing sometime in January.

19 listen to faculty, but don't necessarily do everything they tell you.

Actually, this is good advice on a whole range of issues.  Remember James D. Gordon III's advice in his essay "How Not to Succeed in Law School," back in April 1991 in the Yale Law Journal?  It's one of the funniest articles I've ever read.  I talked about it in my Halloween post.  He said

Just to prove that at heart they are really gentle, fun-loving people, professors will occasionally do something a little bit zany, like wear a costume to class on Halloween. This makes the students laugh and cheer. Before you laugh and cheer, however, you should check your calendar. It is often difficult to tell whether a professor is wearing a costume or not.

Gordon then goes on to warn students about taking the faculty's advice:

If you want to know what kind of people law professors are, ask yourself this question: 'what kind of person would give up a jillion dollar salary to drive a rusted-out Ford Pinto and wear suits made of old horse blankets?'  Think about this very carefully before asking your professor's opinion on any subject.

(100 YLJ 1679, 1668 (1991)).  I've invoked this sage advice before.

Faculty, obviously, have a lot more experience in publishing than the students who run the law journal and they ought to have more expertise in the subjects under discussion, though faculty--like students--bring their biases and limitations to the review.  They may have irrational predispositions in favor (or against) a particular article.  Faculty have a lot of good ideas; they also may have some really bad ideas.  As far back as when I was a student (which is a long time ago now), I remember one professor telling us to take an article--which we did.  Upon closer inspection (that is, during the editing process), a bunch of us thought the article had, well, some serious problems.  Perhaps we would have taken the article without that professor's urging, though I suspect not.  We allowed someone else to substitute his judgment for ours.  I've seen this sort of thing happen a couple of times over the years--including more than once when students thought that pieces I was supporting were not worthy.  Of course, I think my judgment was right and theirs wrong--but it's always more than possible that I've made a mistake.

Endnote: The image, of a few soldiers from Company A listening to a guitar player, on January 18, 1968, during operation Yellowstone, is from the National Archives.  I went searching first for an image of someone talking and people not listening, then stumbled across this powerful photograph and thought a picture of people listening might be even better.  Our policy of only posting public domain images (or images of books that we're talking about) certainly limits us, but in some ways it causes me to find more interesting pictures.

Alfred L. Brophy
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December 19, 2007 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Nash on Property in Road Traffic Management

Jonathan Nash (Tulane) has posted Economic Efficiency Versus Public Choice: The Case of Property Rights in Road Traffic Management on SSRN.  Here's the abstract:

This Article argues, using the case of responses to traffic congestion, that public choice provides a greater explanation for the emergence of property rights than does economic efficiency. While the traditional solution to traffic congestion is to provide new roadway capacity, that is not an efficient response in that it does not lead to internalization of costs. Moreover, over time new capacity may serve to exacerbate congestion problems: New roadway capacity may induce additional travel that would not have taken place but for the new construction. By contrast, congestion charges, that is, imposing tolls designed to force drivers to internalize the costs that their driving imposes on other drivers offer an efficient way to address the problem of congestion. The continued popularity, despite this, of providing new roadway capacity turns upon public choice theory. New roadway construction tends to be very attractive for politicians as a way to satisfy both constituents generally, as well as interest groups that tend to be well-organized and powerful. In contrast, congestion charging regimes tend to be less popular across the board politically. At present, there appears currently to be something of a shift in position. Experimentation with congestion pricing programs is growing overseas including a notable program in London¿and a serious proposal for New York City's central business district. This Article thus argues that, while political economy tends to be a powerful force, it is possible for concerns of efficiency to override (or at least to curtail) that force when the inefficiencies of a response grounded in political economy become too large. At the same time, public choice continues to hold considerable sway: The shift toward congestion pricing may require not only pressing efficiency concerns, but also a shift in the political climate, as evidenced by backlash against New York City's proposal.

Ben Barros

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December 19, 2007 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, December 17, 2007

The Reason for the Implied Warranty of Habitability?

Yesterday's NY Times has an interesting story on an apartment building in the Bronx that has fallen into deep disrepair.  Two issues that were particularly interesting to me were the difficulty that the city has had in dealing with the landlord, which is organized as an LLC, and the New York City program that was created to deal with this type of property.

Ben Barros

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December 17, 2007 in Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)