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Friday, March 2, 2007

Stark on Kelo

Debra Pogrund Stark (John Marshall Law School - Chicago) has posted How Do You Solve a Problem Like in Kelo? on SSRN.  Here's the abstract:

This article analyzes one of the most controversial recent U.S. Supreme Court decisions and demonstrates that the common perception of the Kelo case, that now the government can take any property under the 5th Amendment if they simply allege or show that the new use of the property will achieve a higher economic use, is a misreading of the majority and concurring opinions in Kelo. The article then argues that the Kelo decision is still very troubling for the dicta in the majority, concurring, and even Justice O'Connor's dissenting opinion, that judges should show extreme deference to a legislative judgment of public use and not to “second guess” legislative judgments. The article then reviews all of the cases cited to by the Court in Berman and Midkiff (the two key cases relied upon by the Court in Kelo) and demonstrates that none of them provide support for this extreme judicial deference in the context of a non-traditional taking. Consequently, the Court is in a very strong position to re-examine the continued applicability of this deferential approach in the context of non-traditional takings. Rather than interpret public use to exclude all such non-traditional exercises of eminent domain, this article suggests that an approach that better comports with the legitimate functions of the legislative and judicial branches is for courts to more closely scrutinize these takings to make sure that the alleged public benefits from the taking are real rather pretextual or highly speculative and to increase the level of review when the taking will lead to high uncompensated subjective values to home owners. The article concludes by developing three distinct categories of takings and specific appropriate levels of judicial review and legislative burdens for each category in order to restore the system of checks and balances between the legislative and judicial branches that are essential to the American Constitutional system.

Ben Barros

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March 2, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Deng on Landownership in China and England

Feng Deng (Chongqing University) has posted A Comparative Study on Landownership Between China and England on SSRN.  Here's the abstract:

By comparing the development of landownership in China and England, this paper explores what were behind their different trajectories. In particular, I examined the delineation of property rights, alienation of land, rent and tax, inheritance and accumulation of land. Feudal England was a combination of the Roman system and Anglo-Saxon tradition. From that very strict hierarchical structure England has experienced an evolution toward free land market. In contrast, since very early China has established a unique economic system that allowed free alienation of land, but it has been trying to check the development of land market and private property rights by various means, the most important of which is the strengthening and expanding of patriarchal clan system. The different development paths of China and England show the different responses of two different cultures, which are oriented toward family and individual, respectively, to the same problems related to landownership.

Ben Barros

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March 2, 2007 in Estates In Land, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, March 1, 2007

Korngold on Intergenerational Conflicts

Gerald Korngold (Case Western Reserve University School of Law) has posted Resolving the Intergenerational Conflicts of Real Property Law: Preserving Free Markets and Personal Autonomy for Future Generations on SSRN.  Here's the abstract:

This article argues that land allocation agreements (e.g., deeds, mortgages, covenants, easements, etc.) made today will have a profound and perhaps negative effect on owners in future generations. It shows that the current architecture of the land transaction system and related rules unduly favor current owners over successors, causing a negative impact on land markets and choices of future players. Moreover, the article demonstrates that current doctrine and theory do not provide adequate flexibility for future generations to deal with outmoded land allocation agreements, leading to inefficiencies and frustration of the personal autonomy of future owners. The article suggests a new conceptual framework as well as specific alternative approaches for courts and legislatures across the spectrum of real property areas (including, inter alia, interpretation of instruments, the recording system, changed circumstances rules, conservation easements, subdivision covenants, and eminent domain). Given the historical and ongoing importance of land in the American experience, it is essential that decision makers act to guarantee future generations the opportunity to engage in markets and to fulfill their personal aspirations.

Ben Barros

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March 1, 2007 in Estates In Land, Future Interests and the RAP, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Lovett on Property and Radically Changed Circumstances

John A. Lovett (Loyola-New Orleans) has posted Property and Radically Changed Circumstances on SSRN.  Here's the abstract:

Although Hurricane Katrina altered our national dialogue about many issues, few scholars have addressed whether the storm changed thinking about fundamental property relationships. This article fills that void in two ways. First, it creates a theoretical framework for understanding property law in the context of events producing radically changed circumstances. It does this by defining these events, exploring the mismatch between property law's traditional focus on stability and environments of radical change, creating a taxonomy of property relationships tailored for this exploration, describing typical problems confronted after an event of radical change, and finally developing a set of normative criteria to evaluate the resiliency of property regimes.

The second part of the article focuses on two common property relationships—between landlord and tenant and mortgagor and mortgagee—and examines how their default rules, voluntary private ordering, and market practices have fared under the pressure of Hurricane Katrina. This part also analyzes how another kind of property relationship—between a city (New Orleans) and its citizens—has weathered the radical change created by Katrina and how a series of federally funded and state administered programs have fared in restoring housing—a crucial common resource and public good—in the post-Katrina environment.

The article concludes by suggesting that longer term, more indefinite property relationships characterized by private ordering, risk spreading, setting aside exogenous resources and mutual accommodation—commercial lease and mortgage relationships to be specific—show more resiliency than shorter term and more finite relationships where default rules make exit easy for some parties (residential landlords) but re-entry difficult for others (residential tenants). The article also demonstrates how government housing recovery programs can be assessed using the normative criteria developed in Part I and what policy makers can learn from traditional private property regimes facing events of radical change.

Ben Barros

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March 1, 2007 in New Orleans, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Hershey Trust

Milton_hershey We talk a lot here at propertyprof about new cases to add to the property curriculum, like what case ought to be first, a Hawaii substitute for Pierson v. Post, how to teach environmental justice, and RLUIPA

I'm teaching an advanced wills and trusts class for the first time this semester and am more excited about it than any class I've taught in years--in part because it has a seminar-like enrollment and I'm able to have a conversation with the students in a way that is difficult in lecture classes.  I'm also excited, though, because we're doing a bunch of fun stuff.  Much is on charitable trusts, though I'm also incorporating a practical component.  Working with a couple of colleagues in our clinic, the students work on quieting title to land that was inherited years ago (and now has a bunch of co-tenants), as well as a bunch of related issues.  Suffice it to say, I'm really enjoying the experience.

A few weeks ago we talked about the Hershey Trust case.  I thought that would be a great way to begin, because it deals with a company near and dear to the heart of this Pennsylvania boy.  And also because it's such an unusual case.  Perhaps this post would go better over at Gerry W. Beyer's shop, but I'm so excited by the case and our discussion that I thought I'd talk a little about it here.

The case arose back in the fall of 2002 when the Hershey Trust Company--perhaps at the instigation of Pennsylvania Attorney General--decided that it ought to diversify and, thus, moved to sell its controlling interest in the Hershey Chocolate Company.  That, then, led to a request for a preliminary injunction by the Pennsylvania Attorney General, under its parens patria power.  Not surprisingly, the trial court granted a preliminary injunction (the harm of sale was enormous), which was affirmed by the Commonwealth Court (over a vigorous and thoughtful dissent).  (The trial court's opinion is reprinted in an appendix to the Commonwealth Court's opinion available here.)  What particularly interests me about this case was the assertion of some kind of public right in the trust.  And while I certainly understand that the A.G. has the authority to look out for the trust beneficiaries, I was somewhat surprised to see the assertion of the public's right in the Hershey Company.

Seems to me that this is a great example of Joseph Singer's Reliance Interest in Property in action--and that the case has a lot of possibilities for future assertion of public rights.  Or maybe not, given how even the trial court judge recognized how unusual it is to have a charitable trust, established by the person for whom the town is named, which owns the major business in the town.  And even more unusual to then have the trust contemplating selling its business, when there is no apparent need for the money.  Here's a thoughtful and balanced and brief analysis of the case.  There have been three law review pieces devoted to the case--one by Mark Sidel in the Pitt Law Review (available through hein online here),one  by Evelyn Brody in the Indiana Law Journal (available here) and one by Jennifer L. Komorowski in the William and Mary Law Review (available through hein online here).

Anyway, it may be hard to work that case into the first year property class; it's unusual to do that much with trusts in the first year class; I hope that casebook authors will at least think about noting it.  It's an important example of progressive property jurisprudence, I think.

The image of Milton Hershey is from the Hershey Company website.

Alfred L. Brophy
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March 1, 2007 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 28, 2007

Private Property in Legos

From TCSDaily:

Some Seattle school children are being told to be skeptical of private property rights. This lesson is being taught by banning Legos.

A ban was initiated at the Hilltop Children's Center in Seattle. According to an article in the winter 2006-07 issue of "Rethinking Schools" magazine, the teachers at the private school wanted their students to learn that private property ownership is evil.

According to the article, the students had been building an elaborate "Legotown," but it was accidentally demolished. The teachers decided its destruction was an opportunity to explore "the inequities of private ownership." According to the teachers, "Our intention was to promote a contrasting set of values: collectivity, collaboration, resource-sharing, and full democratic participation."

The children were allegedly incorporating into Legotown "their assumptions about ownership and the social power it conveys." These assumptions "mirrored those of a class-based, capitalist society -- a society that we teachers believe to be unjust and oppressive."

They claimed as their role shaping the children's "social and political understandings of ownership and economic equity ... from a perspective of social justice."

So they first explored with the children the issue of ownership. Not all of the students shared the teachers' anathema to private property ownership. "If I buy it, I own it," one child is quoted saying. The teachers then explored with the students concepts of fairness, equity, power, and other issues over a period of several months.

At the end of that time, Legos returned to the classroom after the children agreed to several guiding principles framed by the teachers, including that "All structures are public structures" and "All structures will be standard sizes." The teachers quote the children:

"A house is good because it is a community house."

"We should have equal houses. They should be standard sizes."

"It's important to have the same amount of power as other people over your building."

Ben Barros

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February 28, 2007 in Property Theory | Permalink | Comments (1) | TrackBack (0)

Menell on Property Rights Movement and IP

Peter S. Menell (Boalt Hall) has posted The Property Rights Movement's Embrace of Intellectual Property: True Love Or Doomed Relationship? on SSRN.  Here's the abstract:

The recent Supreme Court battle over the legal standard for permanent injunctions in patents cases (eBay v. MercExchange) marked an important new front in the Property Rights Movement's campaign to establish a strict and broad interpretation of property rights and their enforcement. This essay explores whether Professor Richard Epstein's embrace of intellectual property rights is likely to produce a durable marriage of traditional property rights theory and intellectual property protection or merely represents a fling that will not withstand divisive relational pressures. It shows that philosophical, functional, intellectual, and political tensions stand in the way of a stable or enduring relationship between advocates of strong and unyielding property rights and intellectual property owners. The need for dynamism and adaptability within the intellectual property rights field may well weaken the support for absolutism in property jurisprudence and policy, reinforcing the shift away from the Blackstonian conception of property.

Ben Barros

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February 28, 2007 in Intellectual Property, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

My Desk

For your viewing pleasure, here is a picture of my desk:

Pict2615

Note the bright yellow-green document in the middle -- one of my students was smart enough to place the colored sheet on the top of her student note so it wouldn't get lost in the pile.  In my humble opinion, a clean desk is a sign that you don't have enough to do.

Ben Barros

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February 28, 2007 in About This Blog | Permalink | Comments (2) | TrackBack (0)

Monday, February 26, 2007

Glennon et al. on Water Resources

Robert Glennon (University of Arizona) and collaborators have posted four articles on water resources on SSRN.  Here they are:

Robert Glennon, Jedidiah Brewer, Alan P. Ker, and Gary D. Libecap, Water Markets in the West: Prices, Trading, and Contractual Forms:

Rising urban and environmental demand for water has created growing pressure to re-allocate water from traditional agricultural uses. But, for a variety of reasons, water markets are more complicated than are those for other resources. In this paper, we first explain these differences by examining water rights and regulatory issues. Second, we place our research in the context of other economics literature on water marketing. Third, we present new, comprehensive data on prices and the extent, nature, and timing of water transfers across 12 western states from 1987-2005. Prices are higher for agriculture-to-urban trades versus within-agriculture trades, in part, reflecting the differences in marginal values between the two uses. Prices higher for urban use are also growing relative to agricultural use over time. Markets are responding. The number of agriculture-to-urban transactions is rising over time, whereas the number of agriculture-to-agriculture transfers is not. Further, there is a shift from using short-term leases to using multi-year leases of water and permanent sales of water rights. This pattern underscores the need to consider the amounts of water obligated over time, rather than examining only annual flows in assessing the quantities of water traded as is the common practice in the literature. Considering committed water, we find that more is transferred and the direction of trading is different than if the focus is on annual flows. Finally, the data reveal considerable variation in water trading across the states.

Robert Glennon and Michael J. Pearce, Transferring Mainstem Colorado River Water Rights: the Arizona Experience:

As one of the fastest growing states in the country, Arizona faces a problem: where is it going to find water to support this growth? The problem arises because most surface water supplies are completely allocated and groundwater is being pumped at an unsustainable rate. This leaves, as the only viable source of new water, Colorado River water available through the sale, lease or exchange of existing water rights.

The United States is entering an era of water reallocation, when demand for new supplies will be satisfied by shifting water use from existing users to those with new demands. Voluntary transfers between willing sellers and willing buyers is, we believe, the best way to bring about this reallocation. Water marketing should be especially embraced by the environmental community because the alternatives are unsatisfactory: more diversions of water from the few remaining free-flowing rivers; an increase in groundwater pumping; or the construction of new dams.

This paper explores the opportunities for marketing Colorado River water by examining case studies of individual transfers that have occurred or been proposed. We consider a recent proposal by the seven Colorado River Basin States that would alter the Law of the River with a set of incentives that would encourage water conservation by allowing cities to pay farmers and irrigation districts to undertake extraordinary conservation measures. We conclude that there substantial impediments to water marketing: the legal constraints are formidable; the transaction costs substantial; and the emotions highly charged. Procedural pitfalls and bureaucratic oversight of transfers constitute substantial impediments to the transfer of even modest quantities of water. These regulatory obstacles drive up transaction costs and discourage the development of a market in water.

Robert Glennon, Tales of French Fries and Bottled Water: the Environmental Consequences of Groundwater Pumping:

This article is a substantially revised version of the 19th Annual Distinguished Visitor lecture at Lewis and Clark Law School in September 2006. Drawing on my 2002 book, Water Follies: Groundwater Pumping and the Fate of America's Fresh Waters (Island Press, 2002), I use stories about common activities in our daily life, such as drinking bottled water and eating French fried potatoes, to illustrate the horrible environmental consequences of groundwater pumping. Excessive groundwater pumping has dried up rivers and lakes around the country, including some very surprising areas, such as Florida and Massachusetts. The phenomenon comes from a disconnect between law and science: the science of hydrology understands that surface and groundwater are integrated parts of the hydrologic cycle, but the legal system governs ground and surface water by different legal doctrines. Rather than reforming the system, we have devised Rube Goldberg solutions, such as refilling dried-up lakes by pumping more groundwater. This illustrates a remarkable trait of human beings: we have an unlimited capacity to deny reality.

Robert Glennon, Christopher Avery, Carla Consoli, and Sharon B. Megdal, Good Intentions, Unintended Consequences: The Central Arizona Groundwater Replenishment District's Search for Renewable Supplies of Water:

The 1980 Arizona Groundwater Management Act is widely celebrated as a progressive piece of legislation that attempted to halt excessive groundwater pumping. A key component of the Act was its requirement that developers demonstrate an “assured water supply” [AWS] before receiving permission to build. In the early 1990s, the legislature created an optional method for securing AWS compliance: membership in the Central Arizona Groundwater Replenishment District [CAGRD]. This option has turned out to be far more attractive than was originally envisioned. This paper explores the good intentions but unintended consequences brought about by the CAGRD option.

As membership in CAGRD has skyrocketed, so has the CAGRD's obligation to obtain additional supplies of renewable water. From where, and at what price, CAGRD will obtain these supplies is very problematic. This article offers a set of options that would reform how CAGRD operates. Without significant change, CAGRD will find itself required to accept additional members but without access to long-term water supplies to meet it replenishment obligations.

Ben Barros

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February 26, 2007 in Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)