Thursday, January 21, 2010

Home Sales and Fraudulent Concealment

I currently am teaching a brief unit on real estate transactions in my Property course, and tonight we are covering disclosure and fraudulent concealment.  As luck would have it, a recent article in the Wall Street Journal discusses this exact issue.  The article indicates that disclosure issues have taken on added significance in the current housing market because buyers cannot expect increasing home values to help them recover from mistakes made in the initial purchase.  Additionally, the article suggests that faulty disclosures may result not just from lying on the part of sellers, but also from the complexity of the disclosure requirements themselves.

Mike Kent

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January 21, 2010 in Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 20, 2010

Mossoff on Epstein and Patent Conveyances

Adam Mossoff (George Mason) has posted A Simple Conveyance Rule for Complex Innovation on SSRN.  Here's the abstract:

This article, written for the Eighth Annual Legal Scholarship Symposium celebrating the work of Richard A. Epstein, assesses Epstein’s advocacy of a default rule for patent conveyances. The article first explains how nineteenth-century patent doctrine supports Epstein’s argument for a conveyance default rule, detailing how early courts adopted for patents the same conveyance default rule they applied to real property. In real property, the default rule provides that, barring words of limitation or restrictive covenants, a conveyance transfers the entire estate, i.e. fee simple. Since patents are property rights – early courts often analogized patents to real property – a similar rule was adopted for patent conveyances. This historical case law confirms Epstein’s critique of the recent decision in Quanta Computers v. LG Electronics as unprecedented “formalism,” because the Quanta Court adopted a mandatory rule that all conveyances as such exhaust all property rights in patents. In shifting from a default rule to a mandatory rule, Quanta undermines the rights of patentees to use and dispose of their property.

The article then discusses some potentially costly complications arising from Epstein’s support for rule-of-reason antitrust review of patent conveyances. The virtue of the conveyance default rule, according to Epstein, is that it is a simple matter of administration. These gains in low administration costs, however, may be lost given the inherent complexity in the ex post application of rule-of-reason antitrust standards to innovative commercialization of inventions. The inherent unpredictability and indeterminacy in such contextual assessments threaten the dynamic efficiencies achieved by the patent system. This is especially salient when rule-of-reason standards require unsophisticated courts to predict and to regulate new, innovative commercial practices arising from inventions. This counsels against antitrust review of patent conveyances, even in Epstein’s second-best world of simple rules for complex innovation.

Ben Barros

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January 20, 2010 in Intellectual Property, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Turnbull & Salvino on Eminent Domain and the Size of Government

Geoffrey K. Turnbull (Georgia State - Economics ) and Robert F. Salvino (Coastal Carolina - Economics) recently published their article, "Do Broader Eminent Domain Powers Increase Government Size?" in the Review of Law & Economics.  Here's the abstract:

The 2005 U.S. Supreme Court decision Kelo v. New London allows using eminent domain to transfer property from one private party to another when it serves a broadly defined public purpose such as economic development. This paper examines the effect of this doctrine on the size of state and local governments. In the leviathan model, constitutional constraints are needed to control government expansion. The Kelo decision removes one such constitutional constraint on how state and local governments gain command over privately owned resources. The empirical results show that the breadth of eminent domain power affects the size of the public sector; states that explicitly empower their local governments to use eminent domain for private economic development have larger state and local public sectors than those that do not.

Mike Kent

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January 20, 2010 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 19, 2010

Houston Symposium on Climate Change, Water, and Adaptive Law

The University of Houston Law Center and the Environmental & Energy Law & Policy Journal are pleased to announce a Symposium on Climate Change, Water, and Adaptive Law to be held on Friday, February 26, 2010, from 8:00 a.m. to 5:00 p.m. at the Czech Center Museum, 4920 San Jacinto, Houston, Texas 77004.  Leading experts from diverse universities, disciplines, professional backgrounds, and policy making roles will address how law and the legal system need to adapt to address the impacts of climate change on water resources and regimes, and the extent to which it can.

Speakers include:

Panel on State and Local Adaptation to Climate Change’s Impacts on Water:

1. Robin Kundis Craig, Attorneys’ Title Professor and Associate Dean for Environmental Programs, Florida State University College of Law (Opening Presentation of the Symposium)

2. Noah Hall, Assistant Professor of Law, Wayne State University Law School; Visiting Professor, University of Michigan Law School; Executive Director, Great Lakes Environmental Law Center

3. Craig Anthony (Tony) Arnold, Boehl Chair in Property & Land Use, Professor of Law, Affiliated Professor of Urban Planning, Chair of the Center for Land Use & Environmental Responsibility, University of Louisville; Symposium Visiting Professor, University of Houston Law Center

4. Kathleen Miller, Scientist III, Institute for the Study of Society and the Environment, National Center for Atmospheric Research

5. Daniella Landers, Shareholder, The Sutherland Law Firm, Houston, TX

Luncheon Keynote Speech:  The Hon. Eliot Shapleigh (D-El Paso), Texas State Senate

Panel on Energy, Climate Change, and Water: The Complex Intersection

1. A. Dan Tarlock, Distinguished Professor of Law and Director of the Program in Environmental and Energy Law, Chicago-Kent College of Law, Illinois Institute of Technology

2. Lea-Rachel Kosnik, Assistant Professor of Economics, University of Missouri-St. Louis; Dispute Resolution Panel Member for Federal Hydropower Dam Relicenses, Federal Energy Regulatory Commission

3. Amy Hardberger, Attorney, Environmental Defense Fund, Austin, TX

4. Elizabeth Burleson, Assistant Professor of Law, University of South Dakota School of Law; Consultant, United Nations

5. Scott Deatherage, Partner, Environmental Law Section, & Practice Group Leader, Climate Change & Renewable Energy Practice Group, Thomspon & Knight, LLP, Dallas, TX

Symposium Description: "Water use and climate change share a complex, dynamic, multiscalar interdependence.  Water use contributes to climate change in the energy used to transfer water substantial distances, the destruction of carbon-sequestering vegetation and erosion of soils (and the subsequent release of greenhouse gases into the atmosphere) from too much or too little water, and the facilitation of sprawling (and arguably unsustainable) development, among other relationships. Hydropower has been suggested as an alternative energy source that reduces emission of greenhouse gases, but poses a variety of other ecological and social concerns.  Perhaps most importantly, climate change will affect water supplies and watersheds, contributing to water scarcity, rising sea levels, saltwater intrusion into groundwater, more severe storm-event cycles that alter watershed hydrology, and changes to riparian vegetation and stream structures that similarly alter watershed functioning and composition.  This symposium will address the capacity of water law to adapt to the changing, uncertain, and potentially extreme demands and stresses that climate change -- and our responses to climate change -- will put on water resources."

For more in, or contact Chief Symposium Editor/Director - Lisa Baiocchi-Mooney,  The Symposium will offer 8 hours of CLE credit for the State of Texas.

January 19, 2010 in Conferences, Natural Resources | Permalink | Comments (0) | TrackBack (0)

Property, Government, and Florida's Amendment 4

Spring semester begins this week at Stetson, where I am teaching both Real Property II and Local Government Law.  In looking over my course materials for these classes, I was reminded of something that often comes up in my own research – the close relationship between theories of property and theories of government.  For example, a liberal view of property that emphasizes individual rights and choices will clearly have implications about the role of government, the nature of government power, and where that power should reside.  Likewise, a more communitarian view of property often will lead to very different conclusions about these same questions.

A current political battle here in Florida over a proposed constitutional amendment provides a practical illustration.  Amendment 4, if enacted by the voters this coming November, would require that any local government desiring to adopt or amend a comprehensive land use plan first submit that plan or amendment to a voter referendum.  Proponents of the amendment argue that it is necessary to curb unplanned growth, preserve quality of life, and ensure that growth occurs in accordance with community consensus.  Opponents respond that the measure would harm individual property owners, slow down economic growth, and result in costly political campaigns and litigation.

This skirmish obviously raises questions about how property should be used and who should get to make that decision.  But, on a deeper level, it forces one to think about what property is, what functions it should serve, who should receive its benefits, and how it relates to individual and community identities.  Also at work are questions about the design of governmental institutions, the advantages and disadvantages of participatory democracy, and the provision of government services (such as land use regulation).  The way in which one answers the “property” questions will inevitably influence one’s answers to the “government” questions, and vice versa.

I’m a fan of showing students how theory works itself out practically in the “real-world,” and it’s always nice to see interesting examples close to home, especially when those examples cover multiple subject areas.

Mike Kent

P.S.  A big thanks to Ben for allowing me the opportunity to do some guest blogging here at PropertyProf.  I'm really looking forward to it!

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January 19, 2010 in Land Use, Property Theory | Permalink | Comments (4) | TrackBack (0)

Michael Kent Guest Blogging

M. Kent I'm pleased to announce that Michael Kent (John Marshall/Atlanta, visiting this year at Stetson) will be guest blogging here at PropertyProf.  Michael writes on land use and takings issues, and shares my fascination with Lingle v. Chevron.


Ben Barros

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January 19, 2010 in About This Blog | Permalink | Comments (0) | TrackBack (0)

Monday, January 18, 2010

Bellemare on De Jure and De Facto Land Rights

Marc F. Bellemare (Duke - Public Policy) has posted The Productivity Impacts of De Jure and De Facto Land Rights on SSRN.  Here's the abstract:

There is an important literature on the causal relationship between the quality of institutions and macroeconomic performance. This paper studies this link at the micro level by looking at the productivity impacts of land rights. Whereas previous studies used proxies for soil quality and instruments to control for the endogeneity of land titles, the data used here include precise measures of soil quality, which allow controlling for both the heterogeneity between plots and the endogeneity of land titles. Results indicate that de jure rights (i.e., titles) have no impact on productivity and de facto rights have heterogeneous productivity impacts. Productivity is higher for plots on which landowners report having the right to plant trees, but lower for plots on which landowners report having the right to build a tomb and the right to lease out. Moreover, while the right to lease out increases both the likelihood that the landowner has the intention to seek a title for her plot and her willingness to pay to do so, whether her children will enjoy similar rights on the plot has the opposite effect.

Ben Barros

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January 18, 2010 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

MacLeod on Suicide and Gifts Causa Mortis

Adam MacLeod (Faulkner) has posted A Gift Worth Dying For?: Debating the Volitional Nature of Suicide in the Law of Personal Property on SSRN.  Here's the abstract:

This article examines the debate in personal property law over the question whether suicide is ever a volitional act and the attendant issue whether a gift causa mortis ought to be enforced when made conditional upon an act of suicide. Scholars have missed substantial doctrinal changes in the law of gifts causa mortis during the last thirty-three years. These changes bear upon other contested, legal issues, such as the wisdom of legalizing assisted suicide.

The article tests the modern rule that all gifts made in contemplation of suicide are enforceable and the assumption on which this rule is predicated, namely that all suicides are wholly non-volitional acts, products of mental or emotional infirmities. It tests the assumption against human experience, other bodies of law, and the best contemporary learning of psychology and sociology.

The article also offers a new understanding of the traditional rule (voiding gifts conditioned upon suicide), answers a strong doctrinal criticism, and attempts to fashion a more advanced version of the traditional rule, which avoids the shortcomings of both the traditional rule and the modern rule. It posits a stronger doctrinal basis for the traditional rule: strict adherence to the Statute of Wills, to which gifts causa mortis constitutes exceptions, best protects the donor’s intentions.

The article examines a stronger policy basis for the traditional rule, namely that the traditional rule, like parallel doctrines in tort law, criminal law, and insurance law, affirms the intrinsic value of each human person. This teaching helps promote a cultural commitment to the dignity of all human persons and informs contemporary debates on more complex problems, such as the question whether our nation recognizes a fundamental right to assisted suicide. This article concludes with a proposed revision of the traditional rule that is intended to reflect and advance contemporary learning about suicide.

Ben Barros

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January 18, 2010 in Personal Property, Recent Scholarship | Permalink | Comments (2) | TrackBack (0)

Anderson on Lost Neighborhoods and Unincorporated Urban Areas

Michelle Wilde Anderson (UC Berkeley) has posted Mapped Out of Local Democracy on SSRN.  Here's the abstract:

In the novel Sula, Toni Morrison describes a neighborhood known locally as the Bottom, where the black community lived. It was “the hilly land, where planting was backbreaking, where the soil slid down and washed away the seeds, and where the wind lingered all through the winter.” We know such Bottoms. We have seen neighborhoods forsaken in the levees’ breach, public housing blocks gaptoothed with boarded windows, and floodplain shantytowns for farmworkers. We know of homes on land scarred by contamination or dogged by natural adversity. But across the country are Bottoms of another, less familiar type. On the outskirts of cities and incorporated suburbs across the country, hundreds of high-poverty neighborhoods of color lack rudimentary services like sewage systems, drainage, and streetlights. Integrated economically with city populations but excluded from participatory rights in city government, these unincorporated urban areas bear disproportionate numbers of landfills, municipal utility plants, and freeways that benefit urban populations but threaten local health and depress land values.

What to do with today’s lost neighborhoods? It is the late dawn of the twenty-first century, when integration is stronger and civil rights laws are weaker, when local government budgets are dwarfed by demands. Suing local governments or lobbying them, two of the most important strategies of twentieth century advocacy for social justice, have been weakened by judicial and political hostility to redistributive claims. Yet state and local government law retains malleability and promise. Laws governing the allocation of power among local agencies exert significant influence over unincorporated urban areas specifically and spatial polarization by race and class more generally.

In part a prescription for unincorporated urban areas in particular, in part an exploration of solutions for any problem of metropolitan inequality, Mapped Out of Local Democracy takes stock of today’s tools. It argues for a new priority in metropolitan law and policy: state legislative reforms to empower and reshape county governments to represent regional interests and regional logic in intergovernmental negotiations. Strengthening counties to bargain with other local agencies over matters with redistributive consequences, like annexation, can bring an interlocal perspective to critical local decisionmaking and create a promising corridor for addressing contemporary issues of urban inequality. By bringing counties—our most neglected, under-theorized layer of urban government—into sharper relief, this Article offers a new direction in state and local government law to seek progress on economic and racial polarization in America’s cities.

Ben Barros

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January 18, 2010 in Land Use, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)