Friday, July 29, 2011
Patrick Luff (Washington & Lee) has posted The Market Value Rule of Damages and the Death of Irreparable Injury on SSRN. Here's the abstract:
A fundamental principle of remedies is that the remedy should be sufficient to place the injured party in the position he would have occupied but for the wrong suffered. But law and equity come to very different conclusions about what remedy is sufficient to restore a plaintiff to his status quo ante when real property, rare property, and property with high sentimental but low market value are involved. Equity treats the loss of these items as irreparable injury, meaning that damages are not adequate to compensate the victim for their loss. But if the real property is seized in eminent domain proceedings, or rare or sentimental personal property is destroyed, the market value of these items is generally deemed at law to provide an adequate measure of the value of the loss, so that giving the plaintiff market value damages constitutes an adequate remedy at law. This demonstrates a fundamental tension between law and equity: law presumes that the market value is the measure of the damages suffered from the loss, but equity presumes that the damages from this same loss is immeasurable; were it otherwise, damages would be adequate, and equity jurisdiction would not be invoked. This article examines this tension and concludes that the market value rule of damages fails to provide an adequate remedy when real property is seized in eminent domain or when irreplaceable personal property is destroyed through some wrongful act.
[Comments are held for approval, so there will be some delay in posting]
A brief essay on what happened to the 200 air-raid bunkers built by the Nazi's in Berlin during WWII.
(photo credit: Nicor @ Wikipedia Commons)
The federal government is deeply invested in this question. Many government agencies use the "value of a statistical life" to calculate whether new safety proposals pass cost-benefit muster. For example, if a new airplane safety protocol would cost $100 million to implement and save $300 million worth of human lives, then the program is a pretty clear winner. According to the federal government, the value of a statistical life for cost-benefit purposes is somewhere around $6 million:
Thursday, July 28, 2011
The New York Times runs a fun article on how GIS mapping technology is altering the humanities:
Historians, literary theorists, archaeologists and others are using Geographic Information Systems — software that displays and analyzes information related to a physical location — to re-examine real and fictional places like the villages around Salem, Mass., at the time of the witch trials; the Dust Bowl region devastated during the Great Depression; and the Eastcheap taverns where Shakespeare’s Falstaff and Prince Hal caroused.
The map of Gettysburg is especially cool.
Rosemary Rayfuse struggles with what should happen to the (island) nations that will disappear if ocean levels continue to rise:
Disappearing states could try to acquire territory from another state. However, no other government is likely to give up some of its land, no matter the price. The construction of artificial islands has also been proposed, but the financial, engineering, cultural and legal challenges may be insurmountable. The best scenario under current international law appears to be for disappearing states to enter into some form of federation with another state. However, a merger would threaten their cultural identities and likely oblige them to relinquish control over their resources.
Simply continuing to recognize deterritorialized states as full states is a better solution. A deterritorialized state would consist of a government entity that would continue to represent the rights of its citizens at the international level and vis-à-vis their new host state or states.
[W]hat I found interesting about the reporting was the political take. The reporters begin and end from an unapologetic stance that patent litigation is destructive (and believe me, there is no love for lawyers in this story). They are entirely dismissive of the idea that patents in the high-tech world promote and protect innovation. This is a perfectly reasonable position to take -- I've seen it done plenty in scholarly commentary and the mainstream press. I've also seen the opposing position defended.
What bothered me was the very hostile take on litigation.
The talking points about meritless litigation and nuisance lawsuits could have been taken word for word from the tort reform lobby. If this had been a story about the ability of plaintiffs to stand on their rights to sue big corporations for just about anything else (antitrust, employment discrimination, personal injury, consumer rights), my guess is that it would have been a story about how bad, bad corporate defendants work to keep plaintiffs out of court.
Wednesday, July 27, 2011
A real estate turn-around is underway in Miami:
[T]he balance between supply and demand in South Florida is shifting. In late 2008, as the financial crisis was peaking, there were 108,000 properties for sale and hardly any buyers. The region became a symbol of excess. Buyers abandoned their deposits and reneged on deals, buildings went bankrupt and squatters moved in.
Now there are fewer than 48,000 properties for sale, Condo Vultures said. And with supply diminished, homes have value again.
Wendy Gerzog (Baltimore) has posted Mortgages and Conservation Easements: Not a Good Mix (Tax Notes) on SSRN. Here's the abstract:
This article reviews Kaufman and the Tax Court’s reconsideration of its summary judgment decision that rejected the taxpayers’ deduction for a facade easement charitable deduction. The issues newly considered are the deductibility of the taxpayers’ required cash payments to the charity in connection with obtaining a facade easement charitable deduction and the application of various penalties.
Monday, July 25, 2011
It's really easy to caricature the Institute for Justice for its overly evangelical position on the Takings Clause. Far too often, its lawyers confuse the stupid with the unconstitutional (see e.g., Kelo).
Yet, no matter what you think of the Fifth Amendment, the folks at the Institute deserve high praise for their legal battles against arbitrary licensing and permitting schemes. In many industries, insiders have erected remarkably arbitrary entry barriers that make it difficult for people of modest means to earn a living. Why, for example, does anyone need a license to become a barber, hair braider, florist, tour guide, manicurist, or frozen-dessert seller? Florida won't let you work as an interior designer unless you finish a four-year degree and a two-year apprenticeship. Such schemes put a boot on the neck of low-income entrepreneurs - the very population that could lead a revival of depressed inner-city areas.
Well, here's a wonderful article about a major victory that the IJ has won in the name of economic liberty. In short, a group of monks in Covington, Louisiana started making well-made (and cheap!) wooden coffins to support their abbey. This simple business violated all kinds of state regulations (and really pissed off the state's funeral home cartel). For the monks to sell their coffins, someone in the abbey would have needed to get licensed as a funeral director and serve an year-long apprenticeship. Moreover, the monks would then have needed to convert their monastery into a "funeral establishment," a label that would require a layout parlor for 30 people, a display room for six caskets, and body embalming equipment.
The monks thought all these regulations were excessive, since all they wanted to do was sell wooden boxes. With the help of the IJ, they sued, claiming that the permitting scheme failed rational basis review. The 5th Circuit agreed. If we care about cities and the urban poor, this kind of case needs more standing ovations. I for one, look forward to riding in unregulated jitney cabs and getting $5 dollar hair cuts in the back of someone's truck.
Eric Claeys (George Mason) has posted Intellectual Usufructs: Trade Secrets, Hot News, and the Usufructuary Paradigm at Common Law (Book Chapter) on SSRN. Here's the abstract:
Contemporary American intellectual property (“IP”) scholarship assumes trade secrets and hot news are not property rights because neither field entitles claimants to rights to exclude. This Chapter challenges that conventional wisdom on two grounds. The first is conceptual. Doctrinally, “property” encompasses not only trespassory and exclusionary rights - like rights in land - but also usufructs - like riparian rights. Conceptually, rights in land and river flow both count as property because property consists not of a right to exclude but rather a right to determine exclusively the use of an external asset. Trade secrets and hot-news rights also fit that definition - as usufructs in IP corresponding to riparian rights in real property.
The other ground is historical. Seminal American authorities relied on the concept of the IP usufruct as described in this Chapter to describe and justify trade secrecy and hot-news doctrine as both emerged in nineteenth-century American common law. The Chapter illustrates by interpreting Chancellor James Kent’s treatment of trade secrecy in his Commentaries on American Law, the Massachusetts Supreme Court trade secrecy decision Peabody v. Kidd (1868); an early hot-news decision, Kiernan v. Manhattan Quotation Tel. Co. (N.Y. Supr. 1876); and the U.S. Supreme Court’s decision recognizing hot-news interests in International News Service v. Associated Press (1918).