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Saturday, January 30, 2010

McLaughlin and Weeks on Conservation Easements and Charitable Trust Doctrine

Nancy A. McLaughlin (Utah) and W. William Weeks (Indiana-Bloomington) have posted Hicks v. Dowd, Conservation Easements, and the Charitable Trust Doctrine: Setting the Record Straight on SSRN.  Here's the abstract:

This is the fourth in an exchange of articles published by the Wyoming Law Review discussing the application of charitable trust principles to conservation easements conveyed as charitable gifts. In 2002, Johnson County, Wyoming, attempted to terminate a perpetual conservation easement that had been conveyed to the County as a tax-deductible charitable gift. The County’s actions were challenged, first in a suit brought by a resident of the County, Hicks v. Dowd, and then in a suit brought by the Wyoming Attorney General, Salzburg v. Dowd. This article supports the position taken by the Wyoming Attorney General – that conservation easements conveyed as charitable gifts for the purpose of protecting the conservation values of the land they encumber in perpetuity constitute restricted charitable gifts or charitable trusts and, thus, such easements cannot be terminated without court approval obtained in a cy pres or similar equitable proceeding. For readers who do not have easy access to court documents in Wyoming, this article includes the relevant portion of the Motion for Summary Judgment filed by the Wyoming Attorney General in Salzburg v. Dowd as Appendix A.

Ben Barros

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January 30, 2010 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, January 29, 2010

Dorfman on Private Ownership

Avihay Dorfman (Tel Aviv) has posted Private Ownership on SSRN.  Here's the abstract:

The most powerful response to the growing skepticism about the intelligibility of the idea of private ownership has been cast in terms of owners’ rights to the exclusive use of an object. In these pages, I argue that this response suffers from three basic deficiencies, rather than merely explanatory gaps, that render it unable to overcome the spectre of skepticism. These deficiencies reflect a shared want of attention to the normative relationship that ownership engenders between owners and non-owners. In place of the right to exclusive use, I set out to develop an account of private ownership that seeks to defeat skepticism concerning this idea. The proposed account insists that the idea of private ownership picks out a special authority relation between an owner and a non-owner involving the normative standing of the latter in relation to an object owned by the former. I further demonstrate the important place of this idea in shaping the contours of normative disagreements about the point of ownership rights and responsibilities.

Ben Barros

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January 29, 2010 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, January 28, 2010

Nolon and Salkin on Land Use Law and Pedagogy

John R. Nolon (Pace) and Patricia Salkin (Albany) have posted Practically Grounded: Convergence of Land Use Law Pedagogy and Best Practices on SSRN.  Here's the abstract:

The changing dynamics in the field of land use and sustainable community development law demand that land use law professors rethink the way in which we prepare law students to practice law in this area. This needed paradigm shift converges with the growing momentum of the best practices movement which urges law schools to dramatically revise the curricular approach to legal education, arguing that traditional models are no longer effectively serving the goal of producing competent and fully prepared new lawyers. A perfect storm is present and a unique opportunity exists through the application of many “best practices” concepts for land use law faculty to lead the academy in reinventing curriculum and teaching strategies to better prepare students for the practice of law. A brief history of the best practices movement is described in Part II, as well as an assertion as to why land use should be the “poster child” for best practices. Part III reports on an empirical survey of land use law professors conducted by the authors in 2008 that examines, among other things, the opportunities to apply best practices to the subject of land use law. It also offers additional innovative examples of teaching methods that can be effectively utilized within the confines of the traditional classroom, using the land use law course as a model, as well as an example of how the land use law course can be used across the curriculum as a best practices capstone experience. The article concludes in Part IV with the observation that the shortcomings of the traditional casebook approaches to teaching land use within the four walls of the classroom can be easily converted into exciting opportunities that engage student learners, stretch the limits of student creativity, continue to instill and refine a sense of professionalism in law students and, consistent with the findings and recommendations of the Best Practices report and related literature, prepare students to be more effective lawyers when they graduate.

Ben Barros

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January 28, 2010 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Meteorite Law?

Talk about property law questions ripped from the headlines!  The Washington Post has the latest on a dispute between the landlord of a physicians' office in Lorton and the physicians over the ownership of a meteorite that crashed into the physicians' office recently.

Alfred Brophy

January 28, 2010 | Permalink | Comments (1) | TrackBack (0)

Babie on Climate Change and Property

Paul T. Babie (University of Adelaide) has posted Climate Change and the Concept of Private Property on SSRN.  Here's the abstract:

This essay argues that the dominant liberal conception of private property, implemented and operating in legal systems worldwide, permits power - or choice - over the use and control of goods and resources so as to prioritise self-interest over obligation towards the community, both local and global. This, in turn, is one of the components of modern social life making possible the complex processes that produce both anthropogenic climate change and its consequences for humanity.

Ben Barros

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January 28, 2010 in Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tekle on Sex Offender Covenants

Asmara M. Tekle (Thurgood Marshall) has posted Safe: Restrictive Covenants and the Next Wave of Sex Offender Legislation on SSRN.  Here's the abstract:

This Article examines the emerging phenomenon and implications of sex offender covenants, the latest wave of sex offender legislation, under common law property rules such as touch and concern and the doctrine prohibiting restraints against alienation. The paper theorizes that courts use common law property rules to strike down personal “who” covenants, such as those based on race, age, disability, and often permanently debilitating sex offender status, that run afoul of public policy norms – most particularly, the wide availability of safe and decent housing for all.

The Article analogizes blanket sex offender covenants to their racially restrictive progenitors, arguing that both types of covenants are based on unsubstantiated fears that one population would sexually terrorize another. The modern-day fear is that convicted sex offenders will sexually prey upon children, whereas the underlying fear in the era of racial segregation was that black men, this country’s original sexual predators, would sexually prey upon infantilized white women. Finally, this Article looks to the sordid history of racial segregation for lessons and solutions to the modern-day problem of convicted sex offenders.

Ben Barros

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January 28, 2010 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 27, 2010

Kelo, the Meaning of "Public Use," and Beyond

A recent decision from the United States District Court for the Western District of Pennsylvania presents some interesting issues about the law of eminent domain.  In Whittaker v. County of Lawrence, 2009 WL 4744392 (Dec. 7, 2009), the plaintiffs challenged the condemnation of their parcels in connection with a proposed redevelopment project.  Specifically, the plaintiffs argued that the project – a 500-acre industrial park – was not a public use under the Takings Clause.  The district court rejected that argument, concluding that a local government’s economic revitalization efforts were “undoubtedly” public.

So far, all of this sounds familiar and in keeping with the Supreme Court’s decision in Kelo v. City of New London.  But here’s the twist – unlike Kelo, where the state courts interpreted the state statutes as allowing the economic development taking at issue, the state law here (as construed by the state courts) affirmatively declared that this type of use was not “public” for purposes of the eminent domain power.  Acknowledging this fact, the district court nonetheless held that the use was public for purposes of the Fifth Amendment.  Here’s the central portion of the opinion (omitting citations):

States are undoubtedly free to create “public use” standards that are more demanding than that contained in the Fifth Amendment.  Indeed, subsequent to the Supreme Court’s decision in Kelo, the Pennsylvania Legislature passed legislation generally prohibiting the use of eminent domain power for the purpose of facilitating “private enterprise.”  It does not follow, however, that actions taken in contravention of such state proscriptions are likewise taken in contravention of the Public Use Clause.  The content of the Public Use Clause does not “vary from place to place and from time to time.”  The “public use” requirement is “coterminous with the scope of a sovereign’s police powers.”  It does not change based on how a particular sovereign chooses to use (or not use) its police powers.  As far as the United States Constitution is concerned, a “public use” in Connecticut is a “public use” in Pennsylvania.  The Plaintiffs attempt to convert state statutory standards into federal constitutional requirements, “[b]ut constitutional law does not work that way.”

Whittaker, 2009 WL 4744392, at *18.

This is an interesting development, and one that I have wondered about since the Kelo decision came down.  Even though Justice Stevens’ majority opinion in Kelo admitted that states were free to impose stricter “public use” requirements than that announced by the Court, it also stated that the Court’s authority “extend[ed] only to determining whether the City’s proposed condemnations [were] for a ‘public use’ within the meaning of the Fifth Amendment to the Federal Constitution.”  Kelo, 545 U.S. at 489-90.  The district court in Whittaker apparently took this last statement to heart.

One potential ramification of the reasoning used in Whittaker could be that property owners increasingly look to state courts and state law claims (either constitutional or statutory) for relief from proposed condemnations of their properties, rather than proceeding under the Takings Clause.  But apart from that, there is another possible ramification:  If “public use” under the Takings Clause is a matter of federal law that is defined uniformly regardless of any state pronouncements, then one might also argue that “property” under the Takings Clause is equally a federal question subject to uniform definition.  In other words, perhaps there is some normative constitutional baseline that qualifies as “property,” beyond which the states cannot regulate without providing just compensation (regardless of their ability to regulate or define property interests in the first instance).

This latter argument has significant federalism implications, especially with regard to the question of judicial takings currently before the Court in Stop the Beach Renourishment v. Florida Department of Environmental Protection (about which Ben excellently blogged here and here).  If “property” as defined in the Takings Clause means the same in Connecticut as it does in Pennsylvania (to paraphrase Whittaker), then perhaps it becomes easier for a federal court to say that a state court decision has taken that “property” irrespective of the state’s ability to change or define property rights as a matter of state law.

Mike Kent

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January 27, 2010 in Recent Cases, Takings | Permalink | Comments (2) | TrackBack (0)

Tuesday, January 26, 2010

Mike Leach, Texas Tech, and Property Interests

As an ardent fan of college football, I have followed with some interest the events surrounding Mike Leach’s firing as the head football coach at Texas Tech University.  Moreover, as a law teacher, I am always interested in ways to communicate legal principles through the medium of current events.  Over at ContractsProf Blog, Jeremy Telman (Valparaiso) has a good post providing the basics of the case.  I would point out here that the controversy has a property law connection, as well.  Leach’s suit against Texas Tech alleges that he had a property interest in continued employment with the university, of which the university allegedly deprived him without due process and which it allegedly took without providing him just compensation.  This could provide some interesting class discussion about how property interests are created, defined, and enforced.

Mike Kent

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January 26, 2010 | Permalink | Comments (2) | TrackBack (0)

Monday, January 25, 2010

Green on Tort Liability to Trespassers

Over at the TortsProf Blog, Mike Green (Wake Forest) has an interesting post on propertyowner liability to trespassers and the proposed language of the draft Restatement (Third) of Torts on the subject.

Ben Barros

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January 25, 2010 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Rizzolli on the Law & Economics of Building Encroachments

The latest issue of the Review of Law & Economics has an article by Matteo Rizzolli (University of Milan - Bicocca) titled Building Encroachments.  Here's the abstract:

Property law usually addresses encroachments with ejectment. Building encroachments differ, however, as restoring a landowner’s property claims implies the reversal of often large costs sustained by the builder. The authority thus confronts the following dilemma: either it stands by the landowner, thereby facing the social costs of undoing significant investments and possibly supporting an opportunistic landowner that tries to hold up the builder, or it defends the investment of the builder thereby endorsing a kind of private eminent domain. In addressing building encroachments, national property laws have deployed different remedies ranging from a property rule in favor of the landowner to a property rule in favor of the builder with a variety of liability rules, often hybridized with property rules, in between. This paper models the builder-owner conflict after the theory of optional law (Ayres, 2005); it frames different national solutions into a common analytical setting; and it evaluates the different laws in their relative allocative and distributive outcomes and their capacity to constrain opportunistic behavior.

Ben Barros

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January 25, 2010 in Property Theory, Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Rosser on Reservation Resources

Ezra Rosser (American U.) has posted Ahistorical Indians and Reservation Resources on SSRN.  Here's the abstract:

This article is an in-depth exploration of the impacts of an Indian tribe deciding to pursue environmentally destructive forms of economic development. The article makes two principal contributions. First, it establishes the Navajo Nation’s decision-making role. Prior mineral resource forms of development may have been formally approved by the tribe but the agreements did not truly belong to the Navajo Nation. Extensive research into earlier agreements shows the heavy influence of the federal government and mining interests historically. Existing scholarship on reservation environmental harm tends to deflect tribal responsibility, attributing such decisions to outside forces. Without denying the challenges the Navajo Nation is facing, the article calls for recognition, despite the romanticism that surrounds Indians and the environment, of tribal agency and responsibility for the proposed environmental destruction. Second, I argue that environmental organizations that make use of federal environmental review processes are complicit in the systematic denial of Indian sovereignty that federal primacy entails. Although there is a strong theoretical argument that the only limits appropriate for Indian nations are those of nation-states under international law, the Article concludes that the relationship between environmental organizations and Indian nations ought to be guided by international human rights law.

Ben Barros

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January 25, 2010 in Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Atticus Finch: Friend or Foe?

The year 2010 marks the fiftieth anniversary of the publication of To Kill a Mockingbird.  Of course, this novel has been very influential both inside and outside the legal profession, and it was again the subject of headlines a few months back.  Many readers will recall that, last August, Malcolm Gladwell published an article in the New Yorker critical of the central hero in the book -- lawyer Atticus Finch.  Given Finch's iconic status, several writers quickly rose to his defense (see here, for example).  Others suggested that Gladwell's criticism did not go far enough.

I am happy to report that my colleague at John Marshall, Lance McMillian, has entered the fray with his new article, Atticus Finch as Racial Accommodator:  Answering Malcolm Gladwell's Critique, which he recently posted on SSRN.  Here's the abstract:

Atticus Finch – the fictional hero of Harper Lee’s 'To Kill A Mockingbird' – is a legal icon. The legendary status of Finch is confirmed by his standing in the non-legal world of broader culture. In 2003, the renowned American Film Institute deemed Atticus the greatest movie hero of all-time. That a lawyer would be worthy of this honor is nothing short of remarkable and demonstrates that the stature of Atticus Finch has assumed mythic proportions in American culture. Atticus is not just a lawyer; he is justice in the flesh.

Enter best-selling author Malcolm Gladwell. Last year, Gladwell made waves in The New Yorker by arguing that, far from being a bright spot of racial enlightenment in a time of darkness, Atticus Finch instead made an immoral peace with the world of Jim Crow Alabama. While Gladwell is not the first to criticize the Atticus myth, he is the most culturally influential person to do so, which is an important development. The Atticus-As-Racial-Accommodator charge essentially posits that Atticus was all-too-comfortable with the racism (and racists) that surrounded him every day. Gladwell wonders: Where is the moral outrage? In response, I argue that Gladwell misdiagnoses Atticus because he neglects the important role that Finch’s Christian faith plays in who he is as a person. To understand Atticus, one must first understand Jesus and his teaching. Finch is a New Testament-style prophet whose worldview propels him to this truth: Love and understanding open doors; judgment and condemnation close them. Consequently, his quiet and gentlemanly interactions with the racists in his midst suggest neither passivity nor appeasement, as Gladwell contends. Instead, they are a form of character and strength – derived from Finch’s faith in Jesus – that imbue Atticus with moral authority in the eyes of the community. Moreover, while Gladwell rightly stresses the need of legal change in bringing equality to the South, the kind of moral change led by Finch was likewise necessary. Law is only half of the equation.

This year marks the 50th anniversary of To Kill A Mockingbird. Combined with the cultural significance of Gladwell’s recent revisionist foray, this milestone means that now is a particularly apt time to look at Atticus with fresh eyes and assess his character anew.

I think these discussions of Finch raise interesting and important questions about our role as lawyers, and the role models we choose.  And it's worth pointing out that there is a tenuous connection to property law here.  Finch's fictional law practice included property matters, and the most notable case in which he was engaged in the book (aside from the criminal trial of Tom Robinson) was helping Walter Cunningham overcome issues arising from an entailed estate.

Mike Kent

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January 25, 2010 in Books, Miscellaneous, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)