Friday, September 3, 2010

Order Without Law?

What happens when someone continually and flagrantly violates unwritten social norms?  Nyjer Morgan of the Washington Nationals baseball team seems poised to find out.

Steve Clowney

September 3, 2010 | Permalink | Comments (0) | TrackBack (0)

A toast to labor day

In honor of the long weekend, it's time to think about alcohol. Sometime last year PropertyProf's put out a call for the best name for a property-themed cocktail.  The University of Detroit Mercy's Julia Belian came up with the glorious "Fee Simple Absolut," which still makes me laugh.  Good news for Prof Belian and other budding mixologists.  According to a recent post on the Atlantic's website, there's a movement among bartenders to push for intellectual property over their work.  Eben Freeman, a noted cocktail innovator, complains:

"In no other creative business can you so easily identify money attached to your creative property," Freeman went on. "There is an implied commerce to our intellectual property. Yet we have less protection than anyone else."

(Freeman, of course, seems to ignore entire industries, like fashion.)  Another fun property-ish example from the budding field of Law & Liquor: Gosling's, the maker of Black Seal Rum, has trademarked the Dark 'N Stormy cocktail.  According the the U.S. patent office, a Dark 'N Stormy is two ounces of Black Seal Rum and "a fizzy hit of ginger beer." 

Happy holidays to you all.

Steve Clowney

September 3, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, September 2, 2010

David v. Goliath?

David Great stuff in the New York Times this week.  Picking up on an earlier article in the Guardian, the Times does some digging on a controversy over who owns Michelangelo's David.  As the article states, for 500 years David as stood as a symbol of "Florentine independence and virtue."  And yet, the Italian government is now claiming ownership over the statue.  The rub:

In a nine-page document written in dense legalese, the lawyers concluded that “David” belongs to the nation, the true legal successor of the Florentine Republic, which commissioned the statue in 1501.

But the mayor has his own documents up his sleeve. For one, Florence had been the capital of Kingdom of Italy from 1865 to 1870, and “David,” he said, was part of a package deal that the kingdom gave the city after transferring the capital to Rome. Proof of ownership, he said, is in a June 9, 1871, document that authorizes the transfer to the city of several buildings, including the Palazzo Vecchio.

Unsurprisingly, the dispute all comes back to dollars and cents.  The Accademia, the museum that houses the statue, generates $10 million in annual ticket sales, and both the city and national government want their cut.  Maybe they should just cut the thing in half.

Steve Clowney 

(pic: David behind the Marzocco - a heraldic lion sculpted by Donatello that is the symbol of Florence. From echiner1 under creative commons license)

September 2, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 1, 2010

Distinguishing Between Private-Public and Private-Private Transfers in Judicial and Regulatory Takings

I've been working on a fairly lengthy post-Stop the Beach article on judicial takings.  I will probably post the article on SSRN in a week or so.  In the meantime, I wanted to blog about a distinction that is at the core of my arguments in the article.  As I explain further below the fold, government actions that mandate the transfer of property interests from private property owners to the public ("private-public transfers") should be distinguished from government actions that mandate the transfer of property interests between private persons ("private-private transfers").  I argue that judicial takings, and regulatory takings more broadly, should apply only to private-public transfers, but not to private-private transfers.

I touched on this distinction way back in my first post on the grant of cert in Stop the Beach (see point 5).  Immediately after Stop the Beach was decided, Jerry Anderson asked the following question:

I am curious about Justice Scalia's position that courts may not eliminate "established private property rights." What do such rights consist of? For example, assume that a state court decides to move from a "good faith" approach to adverse possession to an "objective" standard, which will allow some possessors to prevail, even though they knew the land they were occupying was not theirs. This is a standard "evolution" of common law, yet it does, under Justice Scalia's rigid formulation, result in a party losing property that it would not have lost under the old common law test. Is that a "taking"? Can the court NOT change such a common law test without having to compensate property owners?

To me, such a change in adverse possession law involves a private-private transfer, and should not fall within the judicial takings analysis.  In excellent posts taking up Jerry's question, Lior Strahilevitz and Eduardo Penalver both discussed the private-private nature of the change in adverse possession law.

What follows below the fold is a very lengthy treatment of this issue.  The rest of the post is taken from a few sections of my draft article, with the footnotes removed.  I'd very much welcome any comments on the argument.  In particular, I'd be interested in references to similar arguments, if any, that have been made in the existing regulatory takings literature.

Continue reading

September 1, 2010 in Recent Cases, Recent Scholarship, Takings | Permalink | Comments (1) | TrackBack (0)

Tuesday, August 31, 2010

Integrating Lawyering Skills in the Property Classroom

I've been following the debate over on Prawfs Blawg regarding Bruce Newton's paper entitled "Preaching What They Don't Practice:  Why Law Faculties' Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy."  There have been a number of interesting posts on Prawfs Blawg regarding the ABA's recommendations for reform and possible ways to work practical skills into the academic curriculum.  Certainly not a new debate, but definitely interesting.

I thought I'd post a little bit about the Real Estate Transactions class that I'm developing as I teach this semester.  I posted this summer about my search for a book, and ended up adopting George Lefcoe's Real Estate Transactions, Finance and Development.  This is a really interesting area in terms of books -- they are all very different and I could have easily been happy with several others.  I just received a preview copy of the book by James Durham, Debra Stark, and Thomas White III (Commercial Real Estate Transactions: A Project and Skills Oriented Approach) and it also looks great.   I also toyed with the idea of teaching from the ABA's A Practical Guide to Real Estate Transactions, but ended up putting it on reserve as a supplement.

What I'm trying to do is work lawyering skills into the class as a means of reinforcing the legal concepts.  Real Estate Transactions is a little funny because it isn't a doctrinal class, but it does include doctrine.  But I'm also not teaching a drafting class (not that there's anything wrong with that).

So I explained to the students on the first day that we would first build a foundation before getting to the meat of commercial real estate transactions -- we needed to be on the same page about standard contract law before we could move into this more specific type of contract.  On the first day, I gave them an actual, very complicated purchase and sale agreement for an operating shopping center.  I had them make lists of concepts that were unfamiliar to them, then I compiled those lists into a master list that we will work our way through the semester. 

We then spent a few days working through some material from Tina Stark's Drafting Contracts book, talking about the differences between reps and warranties, covenants, conditions to obligations, etc.  They looked through my sample contract and found examples of those types of provisions, and we talked about them.  I gave them the option of drafting a few simple provisions and then gave them written feedback outside of class.  In class, we spent 15 minutes debriefing to further reinforce the concepts.

Yesterday, I gave them a real residential lease and we talked about the analytical skills that transactional attorneys use to spot business issues, evaluate risk, and then mitigate risk.  Today, they broke into pairs and negotiated certain provisions in the contract, role playing the landlord's attorney or the tenant's attorney.  After each negotiation, we debriefed about the content of their negotiations, what each party was trying to get, what kind of compromise was mutually acceptable, and what terms are enforceable.

Thursday the real work specifically on commercial real estate transactions will begin.  But I think that these first two weeks have been a great investment of time.  They seem very comfortable with the ideas of balancing risk, aligning incentives and control, and crafting appropriate standards, which I think are pretty important in commercial real estate transactions.  The negotiation exercise in particular is one that I think I will use throughout the semester because the students were very engaged as they argued with one another, and seemed to learn a lot during the debrief from the other students.  It also proved to be a great jumping off point for me to work in the substantive points that I wanted to make about landlord/tenant law.

So far, I think that my attempts to integrate lawyering skills into an "academic" class, as a means of teaching the substantive law, have been successful.  Next semester I will teach Property, which I believe will be a bigger challenge given that it is a fundamental doctrinal course. 

I'm very interested in how other Property Profs are addressing this debate.  Do you think that lawyering skills should be taught in separate courses by a separate faculty (as advocated by some on Prawfs Blawg) or should they be more integrated in the academic curriculum (as I am attempting)?  Thoughts?

Tanya Marsh

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August 31, 2010 in Teaching | Permalink | Comments (1) | TrackBack (0)

Couchsurfing 101


Last week, the LA Times ran a short Q&A about how to get rid of a freeloading house guest.  According to the author of the piece:

An adult living in a rental property without paying rent or being party to a rental agreement, oral or written, is consider a "tenant at will." Since the law regards him as a tenant, he cannot be locked out or forcibly removed. Your only legal avenue is to give him a written notice of termination of tenancy. If he doesn't leave voluntarily after receiving written notice, you can file an eviction lawsuit, known as an unlawful detainer, in court. Because he is a tenant at will, you need only give him a 30-day written notice to vacate, rather than the 60-day notice that would be applicable to a traditional month-to-month tenancy of more than a year.

The author certainly knows more about California law than I do, but this strikes me as odd.  Couldn't you consider the ne'er-do-well friend a licensee, rather than a tenant-at-will?  Any Californians care to shed some light on the issue?  I also find the response completely bizarre and inappropriate for dealing with a relationship between friends.  Who would ever sue in this situation without first trying some basic self-help measures?  Turn the cable off.  Empty the fridge.  Invite your smelliest friend to share the couch for few days.  But suing a friend?  That seems like the worst possible solution.         

Steve Clowney

(Pic from WikiCommons)

August 31, 2010 | Permalink | Comments (1) | TrackBack (0)

Sunday, August 29, 2010

Personhood, Property and Pamphlets

The New York Times is running an interesting story about an online collection of real estate pamphlets, curated and displayed by Columbia University's Avery Architectural and Fine Arts Library.  The collection includes pamphlets from as long ago as the 1880s to as recent as the 1970s (interestingly, if you browse through the sample that accompanies the Times article, you are interrupted by . . . real estate pamphlets).

There are over 9,000 pamphlets in the collection, which is enough to sidetrack an obsessive like me for weeks, but they are fascinating.  One immediate realization: advertisers understood that property is an extension of personhood long before Radin's seminal work.  Look at the this advertisement:

20100829scapes-custom5It's beautiful, and the image perfectly captures the address of the property: One Gracie Square.  What's missing entirely, of course, is the actual, physical property.  What's for sale here is a piece of 'personhood' -- graciousness, elegance, a way of being.  Don Draper would have understood it perfectly.

By contrast, the least effective pamphlets are the ones that focus on the physical aspects of the property.  They are informative but don't stir the idea of oneself -- which is the essence, in some ways, of the property as personhood idea.

It might be useful to use these pamphlets as a discussion launcher when teaching a case like Kelo -- what, after all, is really at stake for Mrs. Kelo, and taps into our outrage, other than a sense that something intrinsic to a person's identity is being demolished?

Mark Edwards

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August 29, 2010 | Permalink | Comments (0) | TrackBack (0)

Bayern's Conveyance Interpreter

BayernI've been worried for some time about computers taking over; here's more evidence of it....

Shawn Bayern of Florida State University has a web program that is a "conveyance interpreter" that diagrams grants of estates ("To A for life, but if he becomes a lawyer, then to B for 21 years" and so on). The program uses a "context-free grammar" to understand the language of the conveyance, and then it generates an image that maps out the resulting property interests. Shawn borrowed the style of the images from diagrams that Andrea Peterson, his Property professor at Berkeley, used in class. In fact, Shawn wrote it when he was a property student.  

DrawProfPetersonDiagramI've been playing with it some this morning --- and I have to report that it's pretty darn cool. Just in time for the start of the new year. This could be the new teaching tool of the season! Hours and hours of fun just waiting you and your students.

For instance, at right is the diagram Shawn's program drew for the grant "to A for life, then to B and her heirs if B survives A."  The "conveyance interpreter" is available here.  

The fact that we're one step closer to our jobs being taken over by computers is a story for another time.

Now, Shawn, where's the program to evaluate the rule against perpetuities?

Al Brophy

August 29, 2010 in Estates In Land | Permalink | Comments (0) | TrackBack (0)