Friday, October 2, 2009

Lewinsohn-Zamir on Outcome Assessment

Daphna Lewinsohn-Zamir (Hebrew University) has posted Beyond the Bottom Line: The Complexity of Outcome Assessment on SSRN.  Here's the abstract:

No one denies the importance of outcomes. Whether the object of our evaluation is acts, legal rules, policies or institutions, the outcomes they generate must be taken into account. Given the pivotal role of outcomes for legal analysis, surprisingly little attention has been devoted to the question of what an outcome actually is. Law-and-economics scholars, for example, typically disregard this issue, implicitly adopting the narrowest possible definition of outcomes, namely, end-results. This Article addresses the gap in the literature by conducting an experiment which examines people’s assessment of outcomes. The experimental findings reveal that individuals reject a narrow, simplistic conception of outcomes and embrace a broad one instead. In addition to end-results, various other factors are regarded as being part of the ensuing outcome itself. Consequently, events with similar end-results are perceived as generating different outcomes. Specifically, factors such as how an outcome was brought about, the voluntariness or non-voluntariness of the parties’ behavior, the intentionality or non-intentionality of their acts, and the identity of the parties involved, significantly affect people’s perception of the goodness or badness of the outcome. These findings have potentially far-reaching implications. If efficiency analysis aims at maximizing people’s welfare — measured by the extent to which their preferences are fulfilled—it must not ignore the fact that preference-satisfaction is determined by various factors in addition to the end-results. Analysis of several legal issues illuminates this general conclusion. The fact that individuals perceive outcomes broadly sheds new light on a diversity of issues such as: punitive and liquidated damages in contract law, the efficient breach doctrine, compensation for takings of property, the choice between property rules and liability rules, land assembly for economic development projects, the zoning vs. homeowner associations debate, and the public/private distinction.

Ben Barros

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October 2, 2009 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Respondents' Merits Briefs in Stop the Beach

Respondents' Merits Briefs in Stop the Beach are now available online.  PropertyProfs will be interested to note that Tom Merrill is counsel of record for Walton County and the City of Destin.

Ben Barros

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October 2, 2009 in Takings | Permalink | Comments (0) | TrackBack (0)

Property Resources Database

Rebecca Tushnet (Georgetown) is working on putting together a database of property teaching materials - everything from photos of the beach in Lucas to problem sets.  Rebecca is looking for contributions to the database.  She is also looking for someone to help gather contributions and manage the database.  If you have something to contribute, or want to help out, please send Rebecca an e-mail (

Ben Barros

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October 2, 2009 in Teaching | Permalink | Comments (1) | TrackBack (0)

Thursday, October 1, 2009

Treanor on Morton Horwitz and the Takings Clause

William Michael Treanor (Fordham) has posted Morton Horwitz: Legal Historian as Lawyer and Historian on SSRN.  Here's the abstract:

Dean William Treanor examines and celebrates the work of legal historian Morton Horwitz, author of two magisterial histories of American law, The Transformation of American Law, 1780-1860 (Harvard University Press 1977) and The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (Oxford University Press 1992), through the lens of Horwitz’ path breaking treatment of takings law. With personal memories of Horwitz as a point of departure, Dean Treanor assesses Professor Horwitz’s contribution to the understanding of the evolution of theories of property and the history of the takings clause. Treanor highlights Horwitz’s ability to examine contending views of the takings principle from within the context of larger political and economic movements. Perhaps Horwitz’s greatest contribution to the ongoing conversation about the history of American law, in Dean Treanor’s view, is his awareness of a tension between the ambiguity at the center of takings doctrine and the constraining force of legal reasoning.

Ben Barros

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October 1, 2009 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Salkin on New York Land Use Law and Sustainability

Patricia Salkin (Albany) has posted Modernization of New York's Land Use Laws Continues to Meet Growing Challenges of Sustainability on SSRN.  Here's the abstract:

There has never been a more challenging time to practice land use planning and zoning law in New York. With goals of sustainability at the forefront of the land use regulatory agenda, this brief account of recent developments in land use law highlights some discernable trends, namely: the modernization and increased flexibility of New York State planning and zoning enabling acts, the inspired local initiatives and lethargic State response to affordable housing issues, and the increasing impact of alternative energy systems on local regulatory schemes.

Part I of this article explores the impacts on community development caused by the many modifications to New York State’s planning and zoning enabling acts over the last two decades. Particularly, the article identifies the delegation of extensive discretionary authority to local governments as New York’s signature approach to land use control.

Part II discusses “affordable housing” as a key attractant for judicial action and local government response. With the exception of the Long Island Workforce Housing Act in 2008, the State has been slow to act on judicial calls to action, forcing local governments to develop unique solutions in order to provide affordable housing.

Finally, Part III notes the challenges being faced by lawyers and planners in light of growing preference for alternative energy systems, with specific focus on reactions to Wind Energy and Solar Energy installations.

Ben Barros

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October 1, 2009 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 30, 2009

Tyler and Markell on Evaluating Land Use Procedures

Tom Tyler (NYU/Dep't of Psychology) and David L. Markell (Florida State) have posted The Public Regulation of Land Use Decisions: Criteria for Evaluating Alternative Procedures on SSRN.  Here's the abstract:

In this article we argue for an empirical governance approach - the use of public evaluations - as one basis for deciding whether and how to regulate decisions with public consequences. We propose a conceptual framework for evaluating public acceptability, notably that public judgments should be evaluated against five criteria: overall acceptability ex ante; robustness; consensus; procedurality; and their ranking on non-fairness issues such as cost and convenience. In the article we also move beyond theory to implementation by modeling our framework to evaluate public judgments concerning acceptability in the contentious area of land use decisions in Florida.

Data from a survey of Florida stakeholders offers several interesting findings about five procedures currently in use to make land use decisions: private negotiation; public hearings conducted by elected local officials; administrative law hearings; judicial adjudication; and public referendums. Based upon the above five criteria, judicial adjudication is evaluated as the most desirable of these procedures through which to govern land use decisions. Respondents view judicial and administrative adjudication differently, a finding that raises important questions concerning the appropriate roles for, and structure of, administrative and judicial adjudication. Referendums receive mixed reviews, while public hearings, the most common form of decision-making procedure in the land use arena, are the least acceptable. In short, as the paper details, our findings in the specific context of land use decision-making procedures raise interesting and important questions about the most appropriate procedure through which decisions should be made in this arena and whether there are ways to revise procedures to improve their acceptability to the public. Further, the findings raise important questions across policy arenas about the appropriate use and structure of different types of decision making processes.

Our more general objective is to offer a framework for using empirical governance to consider and, ultimately, enhance the public acceptability of government decision-making processes. Our basic premise in this project is that, to further good governance, government should make decisions using procedures in which the public has confidence and that will increase public acceptance of such decisions.

Ben Barros

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September 30, 2009 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Stop the Beach Oral Arguments Set . . .

for Wednesday, December 2.  Respondents' merits briefs and supporting amicus briefs should be on-line soon; I will link to them as soon as they turn up.

Ben Barros

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September 30, 2009 in Takings | Permalink | Comments (0) | TrackBack (0)

Salzberg on De Donis

Kenneth Salzberg (Hamline) has posted De Donis on SSRN.  Here's the abstract:

For many hundreds of years, starting at least in the 12th Century, many owners of land granted the land to new owner 'and the heirs of his body' - or some similar form of grant. The grantors continued to do this notwithstanding very substantial changes, over at least two centuries, in the law’s understanding of the effect of such grants. Part I provides an historical and jurisprudential analysis of those grants. Part II attempts to explain why so many land owners continued to make such grants, seemingly at about the same rate, throughout the 200 year period of those substantial changes.

Ben Barros

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September 30, 2009 in Estates In Land, Future Interests and the RAP, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 29, 2009

Nelson on Virtual Property and the Rule of Capture

John William Nelson (Samford/East Anglia) has posted Fiber Optic Foxes: Virtual Objects and Virtual Worlds Through the Lens of Pierson V. Post and the Law of Capture on SSRN.  Here's the abstract:

Virtual worlds are more successfully blurring the lines between real and virtual. This tempts many to try and equate virtual property with tangible property. Such an equation creates problems when the common law of property is applied to virtual objects over which users can not possess complete dominion and control. The result is a conversion of the tangible resources that support virtual worlds into a virtual commons. Accordingly, the common law of contracts, rather than that of property, should be used to govern transactions between a user and owner of a virtual world.

Ben Barros

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September 29, 2009 in Intellectual Property, Personal Property, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Bronin on Solar Rights and Modern Lights

Sara C. Bronin (U Conn) has posted two related articles on SSRN.  The first is Solar Rights:

The rights to access and to harness the rays of the sun - solar rights - are extremely valuable. These rights can determine whether and how an individual can take advantage of the sun’s light, warmth, or energy, and they can have significant economic consequences. Accordingly, for at least two thousand years, people have attempted to assign solar rights in a fair and efficient manner. In the United States, attempts to assign solar rights have fallen short. A quarter century ago, numerous American legal scholars debated this deficiency. They agreed that this country lacked a coherent legal framework for the treatment of solar rights, especially given the emergence of solar collector technology that could transform solar energy into thermal, chemical, or electrical energy. These scholars proposed several legal regimes that they believed would clarify solar rights and facilitate increased solar collector use. Very little has changed since this debate about solar rights began. Although some jurisdictions have experimented with scholars’ suggestions, reforms have not been comprehensive, and solar rights are guaranteed in very few places. At least in part because of the muddled legal regime, and despite numerous technological advances that have reduced the cost of solar collectors, only one percent of our nation’s energy currently comes from the sun. In this context, this Article aims to reinvigorate and refocus the scholarly debate about solar rights. The Article first explains why solar rights are valuable to both individuals and to the country as a whole. It then analyzes three methods by which solar rights can be allocated: express agreements between property owners, governmental permit systems or zoning ordinances, and court assignments that result from litigation. Although this Article analyzes the concerns of both solar rights seekers and possible burdened parties with respect to current law; it does not fully address the possible solution to the problem of solar rights. Instead, this Article sets the stage for a second piece, 'Modern Lights,' simultaneously being published in the University of Colorado Law Review.

The second is Modern Lights:

This Article functions as a companion to a piece, Solar Rights, recently published in the Boston University Law Review. In that piece, the author analyzed the absence of a coherent legal framework for the treatment of solar rights - the rights to access and harness the rays of the sun. The growing popularity of, and need for, solar collector technology and other solar uses calls for reform.

Answering the call for reform in Solar Rights, this Article proposes a framework within which a solar rights regime might be developed. First, as a baseline, any regime must recognize the natural characteristics of sunlight. Sunlight travels in beams, often across multiple legal parcels, meaning that while a solar right benefits one parcel, it also likely burdens others. Any solar rights regime must weigh the relative value of various property interests and reject frameworks that attempt to implement absolutist approaches. In addition, solar rights must address topographic, latitudinal, and other location-specific conditions. In other words, the rules for solar rights should be flexible, drawing from water law to combine strategies of exclusion and governance to manage sunlight, a fugitive resource like water.

Second, in addition to accommodating the natural characteristics of sunlight, solar rights must clarify both the identity of the holder of the initial entitlement and the nature of the entitlement itself. In recognition of the public benefits of protecting solar access, solar rights should initially be assigned to the party who can put the solar right to the highest socially beneficial use: the solar collector owner, rather than the potential obstructer. Along with the assignment of the initial entitlement, and in recognition of the relativity of solar rights, we must embrace liability rules (as opposed to property rules), which compensate burdened landowners.

A solar rights regime that both recognizes the natural characteristics of sunlight and adequately articulates the nature of the initial entitlement may be difficult to formulate. This Article suggests that instead of creating new legal forms that may further complicate an already complicated task, we rely on existing property forms within the numerous clausus. It advocates a regime that draws from principles in water law, sets the initial entitlement so as to produce socially beneficial results, and adequately compensates burdened landowners. Although much work remains to refine and implement a functional solar rights regime, this Article aims to restart a discussion that has remained 'in the shadows' for too long.

Ben Barros

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September 29, 2009 in Land Use, Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Attention Junior PropertyProfs

AALS Property Law Section Junior Scholars Works in Progess Call For Papers

The AALS Property Law Section invites junior property scholars to submit works-in-progress for a junior scholars panel at the upcoming AALS Annual Meeting in New Orleans. The panel will take place on Sunday, January 10, 2010 from 9:00 a.m. - 12:00 p.m.. At the panel, paper au-thors will have the opportunity to present their papers and receive commentary from senior scholars knowledgeable about their paper topics.

Eligibility: The panel is open to scholars who (a) currently have a permanent or visiting ap-pointment at an AALS member or fee-paid school; (b) have been teaching for six or fewer years; and (c) do not yet have tenure. Papers that have been accepted for publication may be submitted for consideration, but only if they are early enough in the production process for the author to fully incorporate comments provided at the panel.

Submissions: Two papers and an alternate will be selected for the panel by blind peer review. Papers should be submitted by e-mail to both Carol Brown ( and Steven Eagle (, with the subject line “Property Junior Scholars Panel.”

To facilitate blind review, authors should place their names and other identifying information on a separate cover page only. Authors also should alter or delete references within the text that would reveal their identities to a referee. During the selection process, papers will be judged by how successfully they establish their contributions in a scholarly manner and by how substan-tially those contributions add to current property law scholarship.

Deadline: Papers must be submitted by Noon, October 26, 2010 (EDT).

Please direct any questions to the panel organizers, Steven Eagle ( and Carol Brown (

September 29, 2009 in Conferences | Permalink | Comments (2) | TrackBack (0)

Monday, September 28, 2009

Land Use Prof Blog

The Land Use Prof Blog has been re-launched with a new group of editors.  Check it out!

Ben Barros

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September 28, 2009 in Land Use | Permalink | Comments (1) | TrackBack (0)

Sunday, September 27, 2009

Rule on Allocation of Wind Rights

Troy A. Rule (Missouri) has posted A Downwind View of the Cathedral: Using Rule Four to Allocate Wind Rights on SSRN.  Here's the abstract:

The rapid pace of U.S. wind energy development is generating a growing number of conflicts over competing wind rights. The “wake” of a commercial wind turbine creates turbulence and unsteady wind flow that can reduce the productivity of other wind turbines situated downwind. Existing law is unclear as to whether a landowner who installs a wind turbine on its property is liable for the lost productivity of a downwind neighbor’s turbine resulting from such wake effects. Legal uncertainty as to how competing wind rights are shared among neighbors can induce wind energy developers to abandon otherwise lucrative turbine sites situated near property lines, thus forfeiting valuable wind resources. This paper applies Calabresi and Melamed’s familiar “Cathedral” model to determine which rule regime would best promote the efficient allocation of competing wind rights while maintaining consistency with existing law. Surprisingly, the Cathedral model’s infamous and rarely-applied “Rule Four” seems best-suited for addressing these conflicts.

Ben Barros

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September 27, 2009 in Natural Resources, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Serkin on Private Conservation Easements and Public Land

Christopher Serkin (Brooklyn) has posted Entrenching Environmentalism: Private Conservation Easements Over Public Land on SSRN.  Here's the abstract:

This piece for the University of Chicago Law Review Symposium: Reassessing the State and Local Government Toolkit, examines how local governments can use private law mechanisms to entrench policy in ways that circumvent typical legal limitations. The piece examines in detail a specific example of a town donating conservation easements over property it owns to a third-party not-for-profit conservation organization in order ensure that the property would not be developed in the future. This is nearly the functional equivalent of passing an unrepealable zoning ordinance restricting development, something existing anti-entrenchment rules would never permit. The piece examines the costs and benefits of using such a device. It theorizes generally about the nature of entrenchment outside of public law, and identifies anti-entrenchment protections designed to prevent the worst abuses. It ultimately argues that eminent domain serves an important role in allowing subsequent governments to escape the precommitments of prior governments and proposes a modest modification in compensation rules to limit the extent to which conservation easements can entrench an anti-development agenda.

Ben Barros

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September 27, 2009 in Land Use, Natural Resources, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)