Saturday, November 22, 2008

Ziegler on Sustainable Metropolitan Development

Edward H. Ziegler (Denver) sent along his most recent paper, The Case for Megapolitan Growth Management in the 21st Century:  Regional Urban Planning and Sustainable Development in the United States (Download ziegler_megapolitan.pdf).  Here's the abstract:

This article provides an analysis of urban planning issues in the United States related to automobile-dependent regional sprawl and discusses the need for a metropolitan sustainable development governing framework for growth management in the twenty-first century. The paper discusses how unsustainable regional sprawl is now legally required throughout most  metropolitan areas of the United States as a result of local zoning, growth management, and parking programs. The paper examines the potential benefits of creating a metropolitan governing framework to identify and regulate “growth areas” in a region and how linking these areas to regional transit planning is necessary to achieve the development of higher-density, mixed use, and intensive urban core job/housing areas where people could live, work, shop, and play without the use of the automobile. The paper further discusses some related lessons from Europe and discusses potential legal and political issues and institutional arrangements related to creating this type of regional sustainable development framework for urban planning in the United States.

Ben Barros

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November 22, 2008 in Land Use, Recent Scholarship | Permalink | Comments (1) | TrackBack (0)

Tate on Fideicommissa and the Theodosian Code

Don't know what Fideicommissa or the Theodosian Code?  Read on!  Joshua C. Tate (SMU) has posted Codification of Late Roman Inheritance Law: Fideicommissa and the Theodosian Code on SSRN.  Here's the abstract:

It has long been known that most of the private law content of the Theodosian Code has not been preserved independently of the Lex Romana Visigothorum, or Breviary of Alaric. Certain constitutions, not contained in the Breviary but dating to the period covered by the Theodosian Code, have survived in the Code of Justinian. There has been debate, however, as to whether all of these constitutions were contained in the Theodosian Code.

This Article discusses this problem with respect to a particular topic: fideicommissa. The Article considers whether a particular constitution, CJ 6.37.21, might have been included in the Theodosian Code either as part of a general rubric concerning inheritance or as part of a separate rubric on fideicommissa, and concludes by suggesting what the constitution might have looked like had it been included under a separate heading.

Ben Barros

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November 22, 2008 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Good Facts for a Nuisance Question

If you are looking for really compelling facts for a nuisance law question, there was an interesting story in the NY Times this summer entitled, "An Old Sound in Harlem Draws New Neighbors' Ire."  I have attempted to attach the link.

Carol N. Brown

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November 22, 2008 in Teaching | Permalink | Comments (0) | TrackBack (0)

Marcilynn Burke -- Recently Tenured at Houston

Please join me in congratulating Marcilynn Burke who received a unanimous vote in favor of tenure on Friday, November 21, 2008 from her colleagues at the University of Houston Law Center.  This is a wonderful accomplishment and well-deserved.

Carol N. Brown

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November 22, 2008 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Thursday, November 20, 2008

"House" the television medical drama and race specific drugs

Did anyone see the recent episode of the television medical drama, House, in which the black doctor on Dr. House's team assigned a high blood pressure medicine to an older black male patient after telling the patient something along the lines that the drug works really well on "us" meaning blacks?  The patient was skeptical and refused to take the drug.  He made a new appointment, this time to see Dr. House who, after chastising the patient essentially for being stupid, prescribed him the same drug.  Of course, anyone familiar with the show would not be surprised to know that Dr. House, in order to get the patient to fill the prescription, misrepresented what he was prescribing and told the patient that he was prescribing the same medicine that he would give to his white patients when, in fact, he wrote the prescription for the same drug the black doctor had prescribed.  The unsuspecting patient went away happy as a lark.

This episode caught my attention because of Dorothy Roberts' work on race-specific pharmaceuticals, specifically BiDil, which is advertised as a drug designed to treat heart failure in blacks.  It was really interesting to see the concept of race specific medicine presented on prime time.  There was never any discussion amongst the characters about whether there is any real genetic basis for targeting drugs to patients based on race.  I am interested in how IP is driving this new demand / trend?

Carol N. Brown

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November 20, 2008 in About This Blog | Permalink | Comments (2) | TrackBack (0)

AALS Real Estate Transactions Section -- Field Trip

The Naval Training Center in San Diego closed in 1995.  The city redeveloped this prime location on San Diego Bay as Liberty Station.  The development "restores waterfront access to the public for the first time in 80 years, creates new parks, and establishes creative-arts facilities."

Who would not welcome the opportunity to tour such a landmark public-private real estate project?  The AALS Real Estate Transactions Section invites you to join us on our Liberty Station field trip as we tour this innovative and vibrant development.  The field trip will take place on Friday, January 9, 2009.  For details, including meeting times and locations, and to reserve one of the limited spaces still available, please contact Lloyd T. (Tom) Wilson, Jr., Section Chair-Elect, at

The AALS Real Estate Transactions Section prides itself on creating new and exciting experiences through its annual field trips.  These trips are also planned around the important concepts of building comradery and informal networking opportunities.  Please help us continue our tradition.

I look forward to seeing you all in San Diego!

Carol N. Brown, Section Treasurer

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November 20, 2008 in Conferences, Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)

Guest Blogger Carol Brown

I'm delighted that Carol Brown (UNC) will be joining us as a guest blogger.  Carol, among other things, is Chair-Elect of the AALS Property Section.  Welcome, Carol!

Ben Barros

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November 20, 2008 in About This Blog | Permalink | Comments (1) | TrackBack (0)

Wednesday, November 19, 2008

Fennell on Adjusting Alienability

Lee Anne Fennell (Chicago) has posted Adjusting Alienability on SSRN.  Here's the abstract:

In recent years, the right to exclude has dominated property theory, relegating alienability - another of the standard incidents of ownership - to the scholarly shadows. Law and economics has also long neglected alienability; despite the inclusion of inalienability rules in Guido Calabresi and Douglas Melamed's celebrated 1972 Harvard Law Review article, alienability restrictions have entered economic discussions mostly as anomalies, and usually in the company of an entitlement whose suitability for market transfer is hotly contested. In this paper, I explore inalienability rules as tools for achieving efficiency (or other ends) when applied to resources that society generally views as appropriate objects of market transactions. Specifically, I focus on inalienability's capacity to alter upstream decisions by would-be resellers about whether to acquire an entitlement in the first place. By influencing these acquisition decisions, inalienability rules can buttress or substitute for other adjustments to the property bundle in addressing resource dilemmas. Of particular interest is the possibility that limits on alienability could sidestep the holdout problems that have often spurred resort to liability rules, and could do so without interfering as profoundly with the owner's autonomy interests. While alienability limits carry well-known disadvantages, they might be structured in ways that would reduce those drawbacks. Recognizing the full potential of alienability limits in addressing resource dilemmas requires applying the same level of creativity to devising inalienability rules as has previously been applied to the design of liability rules.

I've heard Lee present this paper before, and it is excellent.  A very important contribution to property theory.

Ben Barros

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November 19, 2008 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Montana S. Ct. Resolves Mitchell Slough Dispute

The Montana Supreme Court resolved a long-running water rights dispute, which focused on whether the Mitchell Slough was a natural watercourse:

In a case with statewide implications, the Montana Supreme Court ruled Monday that Mitchell Slough is open to recreation under the state's stream access law.

The court said the 16-mile-long slough roughly follows the historical course of a waterway mapped 130 years ago, and therefore is subject to public access and required permitting, as are other natural waterways.

The 54-page decision overturned two earlier rulings by state district courts that found the slough was not a “natural, perennial-flowing stream. . . .

Since nearly every river and stream in Montana has been affected in some manner by man, the high court concluded: “The District Court's dictionary-based definition, which essentially requires a pristine river unaffected by humans in order to be deemed natural, results in an absurdity: For many Montana waters, the SAL would prohibit the very access it was enacted to provide.”

The Supreme Court also overturned the lower court's conclusion that the water captured by the slough in return flows from irrigation was “artificial” and “not natural,” saying that many Montana streams carry discharged irrigation flows.

The court also disputed landowners' claims the slough was a “man-made water conveyance system” that exists only because of man's manipulations.

“The claim that man has made the Mitchell Slough is a bold one, indeed,” the court's decision reads.

The court did offer a caveat on the issue of public access.

The slough runs through private property and the public only has the right to recreate under the terms of the state streamside access law, which allows access on the water and up to the ordinary high-water mark on the slough's bank, the court said.

Ben Barros

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November 19, 2008 in Natural Resources, Recent Cases | Permalink | Comments (2) | TrackBack (0)

Malloy on Inclusive Design

Robin Paul Malloy (Syracuse) has posted Inclusion by Design: Accessible Housing and the Mobility Impaired on SSRN.  Here's the abstract:

In the midst of pervasive national efforts at improving accessibility to public places for people with disabilities, there is no national design standard for making single-family residential housing accessible to the mobility impaired. As a consequence, the mobility impaired often find that they are unable to safely and easily visit the homes of family, friends, neighbors, and colleagues because their housing is designed with exclusionary and unsafe features - features that would not be permitted if the property were a public place, a place of public accommodation, or publicly funded housing.

This article questions the difference in inclusive design requirements as between public places and private homes. In so doing, it suggests that the difference rests upon two fundamental misunderstandings. The first is based on a failure to appreciate the public nature of private housing, and the second involves misperceptions concerning the ability (inability) of individuals to bargain for socially optimal outcomes in the market for private residential homes. In response to these conclusions the article supports a national inclusive design standard for all new single-family residential housing.

In advancing the argument for a national standard of inclusive design in single-family residential housing, the article proceeds in several steps. First, it provides a brief introduction to the current law on physical accessibility to property. Second, it explains two competing standards of inclusion for residential housing design; Universal Design and Visitability. Third, it provides information on the scope of the problem by exploring the demographics of mobility impairment. Fourth, it addresses the quasi-public character of private housing as part of our national housing stock. Fifth, it discusses local and national mechanisms that can be used to increase the national stock of housing with inclusive design features. And sixth, it addresses the tension between improving housing accessibility and maintaining its affordability.

Ben Barros

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November 19, 2008 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)