Saturday, February 6, 2010

Ode to Centralia, Pennsylvania

The Associated Press ran an interesting story yesterday about the final days of Centralia, Pennsylvania, which has rested for decades above an intense, underground coal fire.  The federal government condemned the town in the 1980s and 1990s, but a hand few of holdouts have remained.  The state government now appears to be getting serious about removing them.  This story presents a lot of interesting property aspects -- from environmental concerns to eminent domain policy to the relationship between property, place and personal identity.  Interested readers can find a number of resources on Centralia here, although I can't vouch for any of them personally.

Mike Kent

P.S.  Thanks to Stetson Law student Emily Pabalan for bringing the story to my attention.

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February 6, 2010 in Natural Resources, Property Theory, Takings | Permalink | Comments (1) | TrackBack (0)

Thursday, February 4, 2010

Lawyering and Law's Limits

One of the things I try to teach students is that the job of "lawyering" often requires knowing the practical limitations of the rules and theories we discuss.  For example, it's one thing to know that the law gives certain rights to your client; it's a different thing to understand how enforcing those rights will affect your client's overall interests.  In the world of property law, this issue comes up with some frequency.  Take land use practice, for instance, where advancing your developer client's legal rights too forcefully may lead to resentment or backlash from the public officials (or their constituents) with whom the client likely needs to maintain good working relations.

Over at Concurring Opinions, Gerard Magliocca (Indiana - Indianapolis) applies this idea to the "Who Dat" controversy that I mentioned here.  Noting the public outrage over the NFL's claims to the phrase, he writes that intellectual property rights often "cannot be enforced to their limits because that would alienate potential customers."  A recent incident involving Bruce Springsteen seems to bear this out.  The Boss apparently has filed a copyright infringement suit against a New York bar that allowed a band to play his songs but never paid ASCAP a licensing fee for the privilege.  Whatever the legal merits of the suit, some of the comments to the story suggest that there may be a public relations cost for pursuing it.  Because I think it's important for students to realize this tension early in their careers, I like to provide them with these types of real world examples.

Mike Kent

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February 4, 2010 in Intellectual Property, Land Use, Teaching | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 3, 2010

Haar and Wolf on Land Use Planning and the Environment

Haar&wolf Charles Haar and Michael Wolf have a new edition of their casebook on land use.  This version is called Land Use Planning and the Environment.

Here is a description of the book from the Island Press' website:

Throughout the casebook, the authors identify and explore intersections between land use planning law and environmental regulation. They also identify the hidden environmental “agenda” behind exclusionary zoning, the impact of urban sprawl on clean air and critical habitats, and other interconnections.

Professors, students, and law and planning practitioners with strong backgrounds and exposure to “traditional” environmental law will find these intersections a wonderful opportunity to examine familiar topics from a fresh perspective. For other users, Land Use Planning and the Environment will serve as a valuable introduction to the environmental realm, a realm that, more than perhaps any other in American law, is subject to swift and dramatic changes that require the most current teaching materials.

“The new Haar and Wolf land use casebook does an impressive job of exploring the evolving, broad, and nuanced landscape of land use law. This casebook will be quite useful in educating the thoughtful and versatile land use lawyer of today and the future, because of its rich and balanced approach. It will also be quite accessible to planning students and other non-law students taking a course in land use law. The casebook focuses on the cutting-edge intersection of land use regulation and environmental protection, without treating the two topics as the same or ignoring important non-environmental issues in land use. As legal historians, the co-authors provide considerable historical context for contemporary land use law and issues, without dwelling in history for the sake of history. The preface asserts the centrality of cases that set forth important legal principles, yet the well-selected judicial opinions are interwoven with substantial treatment of non-litigation processes, statutory and regulatory tools, theory, planning perspectives, non-judicial forces shaping land use, and practical considerations. There is much here for the professor who thinks students should know as much about what city councils and planning commissions do as they know about what judges do. The co-authors raise questions critical of planning, regulation, and private land-use controls, yet they do not “trash” any of these methods that students need to understand in order to solve land-use problems and contribute to this ever-evolving field.” —Tony Arnold, Boehl Chair in Property and Land Use, University of Louisville

Alfred L. Brophy

February 3, 2010 in Land Use | Permalink | Comments (0) | TrackBack (0)

Local Government Liability Under Federal Law at University of Florida

The University of Florida's law school is hosting a symposium on "Local Government Liability Under Federal Law:  Regulating the Sacred and the Profane”  on Friday, February 12.  It will be the Ninth Annual Richard E. Nelson Symposium.  Presenters include Ashira Ostrow of Hofstra on RLUIPA, Alan Weinstein of Cleveland-Marshall on adult use zoning, and Asmara Tekle of Texas Southern on sex offender residency requirements.  Michael Wolf of the University of Florida will offer some observations on “How Local Governments End Up Making New Federal Caselaw.”  Details on the symposium are here.

Alfred Brophy

February 3, 2010 in Land Use | Permalink | Comments (0) | TrackBack (0)

Who Owns Meteorite, the Landlord or the Tenant?

A meteorite crashes through the roof of a commercial office building.  Who owns it, the landlord or the tenant?  According to this story, it may be that the landlord has a better claim.  However it turns out, it sure is an interesting fact pattern.

Ben Barros

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February 3, 2010 in Personal Property | Permalink | Comments (4) | TrackBack (0)

Who Owns "Who Dat"?

controversy is brewing over the ownership of the phrase "Who Dat?", which is chanted by fans of the New Orleans Saints football franchise (shortened from the cheer "Who dat say dey gonna beat dem Saints?").  In light of the Saints' upcoming (and inaugural) appearance in the Super Bowl, some T-shirt makers have been selling shirts that include the phrase.  The NFL, claiming trademark ownership of the phrase when used in connection with the Saints, has sent the shirt makers cease-and-desist letters.  A competing claim to the phrase has been made by two New Orleans natives who assert that they were the first to use it commercially in 1983, although the phrase apparently has been in existence much longer.  The apparent view among most Saints fans is that the phrase simply cannot be owned.  The matter is of sufficient importance in Louisiana that Gov. Bobby Jindal has asked the state attorney general to look into the ownership issues, including initiating litigation if necessary.

For this sports fan/law teacher, it's fun to see interesting legal issues arise in connection with one of the biggest sporting events of the year.

Mike Kent

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February 3, 2010 in Intellectual Property | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 2, 2010

Property in the Human Body and the Case of Henrietta Lacks

It's been a while since we blogged about property in human body parts.  There is an interesting story in today's Slate about the case of Henrietta Lacks, which has some strong connections to Moore v. Regents.  The story is inspired by Rebecca Skloot's new book The Immortal Life of Henrietta Lacks.  As in Moore v. Regents, Lacks' cells were used to create an important cell line without her consent.  The Slate story is largely about consent, and doesn't really touch on the related property issues.  But both the story and Skloot's book should be of interest to folks who follow issues related to property in the human body.

Ben Barros

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February 2, 2010 in Property Theory | Permalink | Comments (0) | TrackBack (0)

"The age of suburbanization . . . is over"

So says John K. McIlwain, Senior Resident Fellow and J. Ronald Terwilliger Chair for Housing at the Urban Land Institute.  You can find a synopsis of his predictions for the American housing market on the Wall Street Journal's real estate blog, which also contains a link to his larger report.

Mike Kent

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February 2, 2010 in Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)

Monday, February 1, 2010

Requiring Rainwater Mitigation in LA

From an interesting story in the LA Times:

A proposed law would require new homes, larger developments and some redevelopments in Los Angeles to capture and reuse runoff generated in rainstorms.

The ordinance approved in January by the Department of Public Works would require such projects to capture, reuse or infiltrate 100% of runoff generated in a 3/4 -inch rainstorm or to pay a storm water pollution mitigation fee that would help fund off-site, low-impact public developments. . . .

Under the ordinance, builders would be required to use rainwater storage tanks, permeable pavement, infiltration swales or curb bump-outs to manage the water where it falls. Builders unable to manage 100% of a project's runoff on site would be required to pay a penalty of $13 a gallon of runoff not handled there -- a requirement the Building Industry Assn. has been fighting.

"The Building Industry Assn. is supportive of the concept of low-impact development and has invested a lot of time and energy in educating our members on those techniques and advancing those technologies," said Holly Schroeder, executive officer of the L.A.-Ventura County chapter of the association.

"But when we now start talking about using LIDs as a regulatory tool, we need to make sure we devise a regulation that can be implemented successfully."

Schroeder said that some building projects, such as those in downtown L.A. or areas where the soil is high in clay, would have difficulty with the 100% retention rule and that the $13-a-gallon mitigation fee is too high. A one-acre building on ground where runoff could not be managed on site, Schroeder said, could pay a fee as high as $238,000.

"We're seeking flexibility to reflect the site circumstance," she said.

Ben Barros

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February 1, 2010 in Land Use, Natural Resources | Permalink | Comments (1) | TrackBack (0)

Stevenson on IOLTA Takings Problems After Kelo

Drury D. Stevenson (South Texas) has posted IOLTA Problems in the Post-Kelo World on SSRN.  Here's the abstract:

IOLTA programs are a very popular mechanism for funding legal services for the poor, and are now operating in every state. As a result, however, IOLTA has become the most frequent and widespread instance of government takings of private property in America. The post-Kelo era has seen increasing legislative restrictions on takings, and the post-Kelo reforms in several states appear to have inadvertently made their respective IOLTA programs illegal by banning all takings where the government immediately gives the taken property to another private party (in this case, private poverty-law foundations and legal aid clinics).

IOLTA takings also highlight a puzzling gap in our legal system between eminent domain law and administrative law. Eminent domain law tends to downplay the importance of procedure itself for government actions, often allowing states to proceed without regard to procedural due process as long as the victims of takings can bring inverse condemnation actions after the fact. Administrative law, in contrast, includes a long line of Supreme Court precedents that emphasize the importance of procedure itself as a component of due process and fairness; state infringements on the “property interests” of individuals can face reversal simply because an agency failed to provide a fair hearing beforehand.

The ensuing discussion also reaches three inherent tensions or puzzles with public funding of legal services for the poor: crowding-out effects, monopoly/single-payer system problems, and the moral hazard problems with providing free lawyers for the poor. This article addresses, apparently for the first time, these three (rather significant) concerns as they pertain to IOLTA or legal services in general. I offer some modest policy reforms in response to these issues.

Ben Barros

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

Property Outlaws Event at Fordham

From the good folks at my alma mater:

The spring 2010 Natural Law Colloquium will take place on Thursday, February 4, at 6:00 pm in the McNally Amphitheatre of Fordham Law School.  Our speakers will be Professor Eduardo Penalver (Cornell Law School) and Sonia Katyal (Fordham Law School), and our topic will be: "Property Outlaws: On Ownership, Law, Morality, and Disobedience".  With this event, we aim to celebrate the recent release of a new book by Professors Penalver and Katyal ("Property Outlaws: How Squatters, Pirates, and Protesters Improve the Law of Ownership"), and also address a host of issues raised in that book (e.g., the nature and limits of private property ownership, the imperatives of social justice, the possible justifications for civil disobedience and stealing, etc.).  This event is free and open to the public. 

For more information on the Natural Law Colloquium, please visit:

For more information on the recent book by Professors Penalver and Katyal, please visit:

Ben Barros

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February 1, 2010 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)