Friday, June 24, 2011
Jeremy Waldron (NYU) has posted The Rule of Law and the Measure of Property (The Hamlyn Lectures) on SSRN. Here's the abstract:
The idea in these lectures is to discuss the relation between property and the rule of law in a deeper way than this has been discussed in the past, in particular in a way that reflects realistic understanding of how property rights are created and modified. I use the Lockean phrase "the measure of property" but the gist of my argument will be that our thinking about the rule of law needs to focus on all the ways in which property is non-Lockean in its origin, legal status, and moral force. In the course of doing this, I will be looking at some of the rather naive assumptions underlying the tight connection that has been forged between property rights and the rule of law in neo-liberal political economy. And I will argue that we can abandon or modify some of these naive assumptions about property without compromising the very great importance that is properly attached to the ideal of the rule of law.
There are three lectures in all. Unfortunately the original lecture titles are not a good indication of the eventual contents. Lecture 1 was called "The Classical Lockean Picture and its Difficulties" and it mainly addresses the alleged contrast between (a) the rule of law and (b) rule by law, and the suggestion that property rights might be privileged under (a). It explores Richard Epstein's version of this idea and then it spends some time on the Lockean account of property. The argument is that in the real world even Lockean property has an inescapable public law dimension. Lecture 2 was called "Unraveling the Form and Substance of Property," but it is really about the contrast between formal/procedural and substantive views of the rule of law and the dificulties inherent in identifying respect for private property rights as a substantive dimension of the rule of law. The argument is that given the accordion-like expandability of the category of property, this cannot work to privilege property rights over other legal rights etc. Lecture 3 was called "The Rule of Law, Property, and Legislation" and it is a defense of legislation, including regulatory and redistributive legislation in light of the rule of law.
Readers should note that although I spend a lot of time discussing the fact situation in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), these lectures are not lecture sin Amercina constitutional law, nor do they aim to build pathways through the swamp of US takings jurisprudence.
Thursday, June 23, 2011
Over at Land Use Prof, Tim Mulvaney has a nice write-up on PPL Montana v. State of Montana, a recent property/enviro case that the Supreme Court has decided to grant cert on. The central issue in the case is who owns the beds and banks of three Montana rivers that play a significant role in state's economy. Whether the rivers are privately owned or belong to the state under the public trust doctrine depends on whether the rivers were “navigable” when Montana was admitted to the Union in 1889.
As Tim points out, there may also be a looming judicial takings issue. Tim writes: "In its petition for certiorari, PPL Montana cited to Stop the Beach in asserting that, '[b]ecause [the Montana Supreme Court was] the operative force behind this land transfer [from private ownership to state ownership], it remains to be seen whether property owners in general have a Takings Claim or due process objection to [such a] land grab.'" Moreover, the Cato Institute is arguing that the "Montana Supreme Court adopted a retroactive rule that destroyed title already accrued in violation of the Takings Clause," and calls the Court’s ruling a “thinly-disguised judicial taking.”
Adam Mossoff (George Mason) has posted Commercializing Property Rights in Inventions: Lessons for Modern Patent Theory from Classic Patent Doctrine (book chapter) on SSRN. Here's the abstract:
At the start of the Industrial Revolution, patentees created many novel and complex transactions to commercialize their property: they maximized their profits through sophisticated agreements that imposed restrictions on manufacturing, sales, and other uses of their inventions. When these restrictions were challenged as invalid restraints on property, courts consistently upheld them. They did so by employing the same concepts and doctrines used by common law courts to validate the creation of lesser estates or restrictive covenants for real property. In sum, early American courts incorporated into patent law the same legal doctrines governing conveyances of real estate, even going so far as adopting the common law property concepts of "assignments" and "licenses." Given widespread confusion today concerning patent conveyance doctrines, this chapter explains the structure and content of this now-forgotten doctrinal framework.
This analysis is descriptive (or positive, in economic parlance), but patent theorists today can draw at least two important lessons from it. First, it reveals how traditional property theory is determinative in patent law. Early American courts secured to patentees the same conveyance rights as owners of real estate because patents were "property." Thus, by definition, patentees enjoyed the same rights as those of landowners – the exclusive rights of use, enjoyment and disposal. Courts applied to patentees the same legal rules for conveying estates, and thereby permitted patent-owners to sue downstream infringers if there was a properly created reversionary interest. Second, patents are now defined as securing only a right to exclude, and this has unhinged patent conveyance doctrines from their firm conceptual grounding in property law. When novel issues are presented to courts concerning complex conveyances of patent rights, the result is indeterminacy and confusion in both the Federal Circuit's and the Supreme Court's decisions. Perhaps it is time to rethink how the hoary concept of property was essential to the successful commercialization of property rights in inventions in the nineteenth century.
Wednesday, June 22, 2011
Mark A. Edwards
(comments are held for approval, so there will be some delay in posting)
Between 2000 and 2004, the city of St. Louis used eminent domain to condemn 24 buildings owned by Jim Roos' non-profit organization. To protest the condemnations, Roos painted a huge "End Eminent Domain Abuse" mural on the side of a building that faces Interstate 44. Unsurprisingly, the government of St. Louis wasn't happy. The city's Building and Inspection Division cited Roos for violating the city's sign code, arguing that permits were required for “signs” of this size displayed on a building. Fed up, Roos' non-profit has sued the city for violating its First Amendment rights. According to Roos, if the First Amendment means anything at all, it means that citizens have the right to protest government policies without having to get government approval. After a long legal battle, the case has finally worked its way up to the Eighth Circuit - stay tuned for the verdict.
One last note. Doesn't the red slash through "End Eminent Domain Abuse" make this mean, Don't End Eminent Domain Abuse? Michael Scott would approve:
Gerald Korngold (New York Law School) has posted Cutting Municipal Services During Fiscal Crisis: Lessons from the Denial of Services to Condominium and Homeowner Association Owners (NYU Journal of Legislation and Public Policy) on SSRN. Here's the abstract:
Faced with restrictions on revenue and increased demands for municipal services, local governments have often chosen to cut expenses by denying services such as trash and recycling collection to unit owners in condominiums and homeowner associations (HOA). Although these owners continue to pay full property taxes, they are forced to purchase the withheld public services from private contractors. Condominium and homeowner HOA owners in effect are forced to pay twice for services, even though for these purposes they are indistinguishable from other (single family) residential owners. In light of the current crisis in municipal finance, we can expect that states and towns will attempt to balance their budgets by additional service cuts on small groups in the community who are unable to resist the majority’s political power.
This article will analyze the denial of municipal services to condominium and HOA owners from a public policy and legal perspective. My thesis is that various goals and commonly held values demonstrate that it is poor public policy for municipalities to place the pain of service cutbacks on only one segment of residential property taxpayers. Legislatures should reject service denial proposals because such programs compromise powerful societal policies including efficiency, fairness, shared sacrifice, notice to buyers, and community building. If government still does enact service denials, condo and HOA owners might challenge them in the courts under takings, equal protection, and substantive due process theories. While I offer what I believe to be a plausible equal protection argument against service denials, I do so reluctantly since courts should not generally intervene into state and local regulatory matters. Legislatures need the flexibility to enact programs and judicial intrusion will weaken goals of separation of powers, judicial economy, and experimentation under federalism. The case of service denials, however, where the majority is transferring all costs/burden of a cutback to a smaller segment of society and where there is no plausible distinction between the owners in the majority and minority, might be the rare case where judicial intervention is necessary. One would hope, though, that legislatures do not act unwisely in the first place by enacting no-service laws.
I further argue that my analysis of the issues invoked in condo and HOA service denials should inform policy makers and the courts during the current period of significant municipal fiscal crisis and ensuing service cuts. The fundamental questions in the condo and HOA service denial and the current fiscal cutbacks are the same: which citizens should have their services reduced, should the pain of cutbacks be shared equally, and who (legislatures or courts) should make these decisions? The clashing choices and resolutions in the case of denial of municipal services to condominium and HOA owners provide important guidance when redefining general fiscal goals and obligations of state and local governments.
Tuesday, June 21, 2011
Mark A. Edwards
(Comments are held for approval, so there will be some delay in posting)
I've been trying, but I can't think of a good way to tie the many amazing, and frequently weird-as-hell, properties I'm seeing this summer to anything about insightful about property. So, instead, I'm just going to post some cool photos.
But, before I do that, there's something you should know. This is my dog:
Mark A. Edwards
(hat tip to http://theweirdandtheweirder.wordpress.com/)
If you've ever driven across Maryland on Interstate 68, you know there's not a whole lot between Hagerstown and Cumberland. On my trip back to Kentucky last week, I nearly managed to run out of gas on this desolate stretch of road. The tank was so low, that when I hit exit 45 outside of Cumberland, I couldn't have been more delighted to see a BP station. What made the pitstop even better was this sign, standing at the entrance to the gas station:
I haven't been able to flesh out the full backstory on this, but I did find some minutes from an Allegany County Commissioners meetings that shed some light on the situation:
Don Bohrer, 10408 Hillcrest Drive, NE, Cumberland, presented each Commissioner with a hand out. He appeared to speak on why he was a “Victim of the System.” It started in 1987 when he wanted to move his business (Tractor World) to Hillcrest Drive. He documented his efforts with the Planning Commission to build a motel in 1995, his application for a grading permit and his sale of the BP Convenience store and gas station in 1999. In 2005 he became a victim of the Bankruptcy Laws and Courts. Then in April 2007 Judge Finan ordered his private property to be a dedicated public right-of-way. He felt if the Zoning Ordinance were regulations instead of suggestions county officials would never have signed Plat 1563. He is now prohibited from developing his 5 commercial lots. In February 2008 he tried to build a motel again and Planning Commission denied his request to amend the zoning text. Mr. Bohrer felt he had been harassedby government officials and spent tens of thousands of dollars in fines, etc. He has not received a response from Attorney Bill Rudd to his June 6 letter.
And this is why I think property is the most fun (and important) class to teach in the first year curriculum - no other subject so touches the lives of our neighbors, our friends, and the cranky unlces we see at family reunions.
Lee Anne Fennell (Chicago) has posted Property and Precaution (Journal of Tort Law) on SSRN. Here's the abstract:
Property in land suffers from an unacknowledged precautionary deficit. Ownership is dispensed in standardized blocks of monopoly control that are routinely retained in their entirety until someone raises an issue regarding an actual or potential incompatible land use. This arrangement, which encourages owners to take sustained, unpriced draws against a limited stock of future flexibility, sets the stage for future impasse as inconsistent plans develop. It also makes property an unnecessarily accident-prone institution, given the role that bargaining failure plays in producing costly land use conflicts. Expanding the slate of potential precautions beyond owners’ locational and operational choices to include their choices about the strength and content of their own entitlements can offer new traction on land use disputes. In this essay, I propose using a local option exchange to confront owners with the opportunity costs of maintaining veto power over unused, low-valued rights. Enabling owners to relinquish property-rule protection of such rights before conflicts arise could reduce the costs of incompatible land uses by making property more flexible and communicative. This approach also carries interesting institutional and theoretical implications. Among other things, it requires rethinking the limits of customization in property bundles and the potential for owner participation in entitlement definition.
Monday, June 20, 2011
I spent the last week on the beach in Ocean City, New Jersey. During our yearly pilgrimage to the outlet stores in Atlantic City, we stumbled on this oddity between the Trump Plaza and Caesers casinos:
After doing some digging on the internet, I found that this property was at the center of a major takings case in New Jersey. Vera Coking and her husband bought the property in 1961, when Atlantic City was still a thriving beachtown. A decade later, as the city fell into decline, it made the drastic decision to legalize gambling and welcome big-time casino development. The prime location of Coking's three-story house quickly attracted the interest of the real estate industry. In 1983, for example, Bob Guccione (the founder of Penthouse), offered to purchase the house for $1 million to build a casino. Coking said no.
Soon enough, the property attracted the attention of another tycoon - Donald Trump. Unlike Guccione, Trump had the local redevelopment agency attempt to acquire the property through eminent domain for $250,000, a much reduced price. Coking sued Trump and the redevelopment agency, claiming that the taking was not for a public purpose. The Superior Court in New Jersey agreed with Coking. It ruled that because there were few restrictions on what Trump could do with the property, there were "no assurances that the public interest will be protected." 727 A.2d 102, 111 (1998). Of historical interest for property profs, this is the Institute for Justice's first test case for the theories it later advanced in Kelo.
Postscript: Coking's house in now on the market. You can own a piece of Property History for $5 million.
Donna Christie (Florida State) has posted Stop the Beach Renourishment v. Florida Department of Environmental Protection: Much Ado About Nothing? (Stetson Law Review) on SSRN. Here's the abstract:
Florida’s beaches are critical to the State's economy and provide significant protection for upland property, but erosion from natural forces, coastal development, and construction and maintenance of navigation inlets threatens the beaches’ ability to provide these vital services. Of the 825 miles of sandy beach in the State, over 485 miles (about fifty-nine percent) are eroding, with 387 miles of beach (about forty-seven percent) experiencing ‚critical erosion. To protect and manage critically eroding beaches, the Legislature enacted the Beach and Shore Preservation Act (BSPA) directing the State to provide for beach restoration and nourishment projects. The State has spent at least six hundred million dollars on beach erosion control and beach restoration, and the Florida Department of Environmental Protection (DEP) now manages over two hundred miles of restored beaches. In 2006, the Florida First District Court of Appeal put the Florida Beach Erosion Control Program in jeopardy, however, by finding that the BSPA deprived the beachfront property owners of their constitutionally protected riparian rights without just compensation. The case eventually worked its way to the United States Supreme Court. But in the U.S. Supreme Court, the issue of focus was not so much whether riparian rights had been unconstitutionally taken - a unanimous Court agreed they had not - but whether the constitution encompasses a doctrine of judicial takings. This article reviews the Florida and U.S. Supreme Courts' dispositions of the case. Although the State prevailed in both cases, from the Florida perspective, the case left many questions about the legal status of beach restoration and application of the BSPA. At the U.S. Supreme Court level, the case provided a flimsy vehicle for Justice Scalia to introduce his theory of judicial takings. Nevertheless, none of the Justices categorically denied the existence of the concept of a judicial taking; four Justices specifically adopted the doctrine, and six Justices agreed that state supreme court decisions that eliminate existing property rights might be unconstitutional. In the end, the case left the law unsettled in a way that will likely incite property rights advocates to continue to cause "much ado".