April 6, 2012
The Timeshare Collapse
SmartMoney details the slumping market for timeshares:
As values sink and desperation grows, the number of owners giving their timeshares away for $1 – or less — has doubled in the past year, says Brian Rogers, of Timeshare Users Group, an owner advocacy group. “There’s never been a worst time to try to sell a timeshare,” he says. . . Up to 48% of timeshare owners are behind on their annual maintenance payments by at least a year . . . . To make up for these losses, resorts have been increasing the maintenance fees on the individuals who continue to use their timeshares.
Shepard on The Rule Against Perpetuities
Scott Shepard (John Marshall) has posted A Uniform Perpetuities Reform Act (NYU J. of Leg. & Public Policy) on SSRN. Here's the abstract
For centuries the Rule Against Perpetuities provided protection against a pair of dangers: that important stocks of property would become, effectively, permanently inalienable as a result of perpetual conditional gifts; and that the dead would be permitted to control the destinies of the living by placing permanent conditions on the fixed stock of available wealth (i.e., land wealth). In recent decades, though, the states have increasingly abandoned the Rule and its protections. As of 2011 all states have migrated beyond the traditional “21-years-plus-life-in-being” Rule, and more than half have actually or effectively abolished their Rules, at least insofar as applied to grants made in trust form.
This migration is, in the main, quite sensible. The traditional Rule was complicated, hard to apply, inefficient, and unsupple. Even the 90-year wait-and-see variation which has come mostly to supplant the traditional Rule cannot differentiate between wise and beneficent gifts that should survive beyond the 90-year threshold and problematic gifts that should not. The danger of inalienability can be dealt with by transmuting legal interests into equitable interests at some date certain, and by granting trustees of those equitable interests the power of alienation as a matter of law as of the same date. The dangers of dead-hand control have already largely dissipated because wealth is not primarily, today, held in the form of an ungrowing and social-and-political-power-soaked stock such as land, but rather in a variety of highly mutable forms, none of which carry with them overarching political or social overtones. Remaining concerns about the small category of problematic dead-hand incentives can be resolved by targeted adjustments to well-established aspects of property and trust law that carry none of the disadvantages of the Rule Against Perpetuities in any of its forms.
In short, then, the states have no good reason to revive their Rules Against Perpetuities, and it should not be imagined that they will. Abolition of those Rules does, however, raise some few legitimate concerns about alienability and dead-hand incentives, concerns best and most efficiently resolved by a few careful amendments to state trust and property law. This article proposes and explains a Uniform Perpetuities Reform Act with which Rule-abolishing states can make these targeted changes.
April 5, 2012
Why Are Wedding Dresses So Expensive?
Caitlin Kenney of NPR's Planet Money does some digging:
Recent SSRN Downloads
2. [256 downloads] 2011 Developments in Connecticut Estate and Probate Law
Jeffrey A. Cooper (Quinnipiac) & John R. Ivimey (Reid & Riege)
3. [203 downloads] A License is Not a 'Contract Not to Sue': Disentangling Property and Contract in the Law of Copyright Licenses
Christopher M. Newman (George Mason)
6. [99 downloads] What If Kelo v. City of New London Had Gone the Other Way?
Ilya Somin (George Mason)
8. [85 downloads] Unjustifiable Expectations: Laying to Rest the Ghosts of Allotment-Era Settlers
Ann E. Tweedy (Hamline)
10. [91 downloads] Exclusion and Legal Theory: A Comment on Property as the Law of Things
Eric R. Claeys (George Mason)
April 4, 2012
Map of the Day: Wind in the USA
This is a map of the wind blowing across the United States from March 27th. For a very cool live wind map of the country, click here.
Adler on the Common Law as a Free Market Solution to Pollution
Jonathan Adler (Case Western) has posted Is the Common Law the Free Market Solution to Pollution? (Ciritcal Review) on SSRN. Here's the abstract:
Free market environmentalism (FME) analyzes environmental problems as property rights problems. Whereas conventional analyses characterize environmental problems as examples of 'market failure,' FME diagnoses point to the lack of markets, and in particular a lack of enforceable and exchangeable property rights. This approach works well with many, if not most natural resources. The case for FME approaches to pollution problems is much weaker, however. Most FME proponents suggest that common law tort suits can adequately protect private property and ecological resources from environmental harm. Yet such claims have not been substantiated. The case for the common law as an effective substitute for pollution control regulation has yet to be made. Much work needs to be done before the common law, or regulatory reforms grounded on common law principles, can be seen as a viable alternative to traditional environmental regulation.
April 3, 2012
Property law in the shadow of emancipation
It's a real pleasure to guest blog here. As customary, my first post will advertise my current project, which you should download here.
I stumbled across this project when I was researching when different states closed the range. I noticed that Mississippi first closed the range in 1865, but what really caught my attention was that Alabama, also, closed the range in 1865. In my paper I argue that this is not a coincidence. In addition to the timing, there's a pattern of closing the range in counties with black majorities, but not in counties with few blacks. There's also plenty of documentary evidence, e.g., planters writing to the legislature asking to close the range, noting the "altered system of labor" or hoping that a closed range would "confine" their black neighbors more.
For property scholars, my paper offers a related set of observations. The first is that many "core" property doctrines are relatively recent innovations. Landowners historically enjoyed only a limited right to exclude, largely confined to buildings and standing crops. Furthermore, landowners could not rely on criminal law to enforce whatever right to exclude state law granted them.
The increasingly private nature of property (closing the range, criminalized trespass, etc.) was statutory, not judicial, in origin. Legislatures, not courts, made most of this law. In fact, judicial opinions interpreting the statutes are hard to find.
Both opening the range at first settlement and closing the range in the 19th century were sea changes in property law. Both changes abandoned centuries old rules in favor of new and untested legal regimes. In the mid-19th century, the Illinois Supreme Court noted that the "memory of man runneth not to the contrary." Someone in Virginia in 1607 would have said the same about the closed range of merry Old England.
So, what's the take-away? You should keep reading my blogging.
Introducing Guest Blogger Brian Sawers
I'm thrilled to announce that Brian Sawers, a VAP at the University of Maryland, has agreed to guest blog here during the month of April. Brian graduated summa cum laude, in Economics from Duke University, and received his JD from Harvard Law School. His research interests center around property and law & economics. His work has appeared in the Temple Law Review and the Nebraska Law Review,and he's currently writing about how lawmakers redefined property in the 19th century to limit the economic opportunities of newly-freed slaves. Fascinating stuff. Welcome, Brian!
Court Takes New Takings Case
Just in case you didn't see the post yesterday, the Supreme Court granted cert in Arkansas Game & Fish Commission v. United States, which asks whether a temporary flooding can constitute a taking under the Fifth Amendment.
NPR on Recovering Artistic Treasures Stolen by the Nazis
Last week, NPR did a short segment on the history of Gustav Klimt's masterpiece, the Portrait of Adele Bloch-Bauer. The painting was commissioned by Ms. Bloch-Bauer in 1903 and then removed from the family home by a Nazi officer, who delivered the painting to the national gallery in Vienna. The NPR details the legal battle between Bloch-Bauer's niece and the museum for ownership of the painting. You can listen here.
Linford on Trademark Protection and Adverse Possession
Jake Linford (Florida State) has posted Trademark Owner as Adverse Possessor on SSRN. Here's the abstract:
There is an ongoing debate over whether or not a trademark is “property,” and what type of rights a trademark properly secures. Some scholars assert that rules and justifications developed to handle rights in real property are generally a poor fit for intellectual property regimes, and for trademark protection in particular. Others respond that a unified theory of property should be able to account for both real and intellectual property. This article takes the middle course and approaches the issue by mining the analogy between the acquisition of trademark protection and the doctrine of adverse possession.
Courts and scholars have compared the trademark owner’s defensive posture against infringers to the way the owner of real property must ward off adverse possessors. The manner in which a federal trademark registration becomes “incontestable” after five consecutive years of continuous use has also been compared to adverse possession. A closer look reveals that the trademark owner resembles the adverse possessor not merely as she waits for her registration to become incontestable, but at essentially every step in the process of acquiring trademark protection.
Comparing adverse possession to trademark acquisition provides several important insights. First, both doctrinal regimes manifest a purpose to provide notice through productive use to the public and competing claimants. Second, the analogy provides additional evidence that we should recognize property rights in the lexical commons that the public can exercise with regard to words from which trademarks have been acquired. In particular, the rights in the trademark commons are more active and more property-like than rights held in common over expired patents and copyrights. Third, the intersection of these regimes raises questions about whether either regime would benefit from increased clarity, or whether we should prefer their current ambiguity. More precisely, the inherent uncertainty in acquiring trademark distinctiveness and commercial strength is an intentional feature of trademark law, but nevertheless problematic not only for the trademark owner but for competitors and the public. The analogy also provides guidance regarding how to resolve the longstanding good-faith / bad-faith intent conundrum in adverse possession doctrine by rejecting the conundrum: neither good faith nor bad faith possessors are inherently deficient in the notice they provide to owners and the public, and neither should be favored or barred in an adverse possession regime.
April 2, 2012
Can Parking Lots Achieve Greatness
Slate reviews Eran Ben-Jospeh's new book, ReThinking a Lot. Ben-Joseph, a professor of landscape architecture and planning at MIT, tries to determine whether the humble parking lot can become a site of great urban design:
[T]here is a difference between mitigating noxious effects and creating good places. That’s the big game Ben-Joseph is after: “Designed with conscious intent, parking lots could actually become significant public spaces, contributing as much to their communities as great boulevards, parks, or plazas.” And, in theory, just as any open space can be converted into a parking lot, however temporarily (as for county fairs), a parking lot can be converted, however temporarily, into a public space.
Will The Supreme Court Decide to Hear a New Takings Case Today?
Sometime today we should hear if the Supreme Court decided to take up Arkansas Game & Fish Commission v. United States. The issue in the case is whether government actions that cause temporary flooding of property constitute a taking. The Federal Circuit said "no." It held that flooding can only effect a taking if it amounts to “an actual permanent invasion of the land, amounting to an appropriation of and not merely an injury to the property.” The experts at Scotusblog have put up a list of all the briefs. And, over at Volokh, Jonathan Adler has called the case "A Takings Claim that Even Environmentalists Could Love."
UPDATE: CERTIORARI GRANTED
(Photo credit: Wisconsin Department of Natural Resources)
Doyle & Schnably on Stop the Beach
Mary Doyle (Miami) and Stephen Schnably (Miami) have posted Going Rogue: Stop the Beach Renourishment as an Object of Morbid Fascination on SSRN. Here's the abstract:
Scholarly response to the Supreme Court's decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection has focused on the plurality's strong advocacy of a judicial takings doctrine. We take a different tack. While the concept of judicial takings is worthy of serious attention, it is wrong to treat the plurality opinion as an ordinary object of analysis. It is, instead, the emanation of a Court going rogue.
Three basic symptoms of the pathology stand out. First, sleight of hand: The plurality opinion purports to be about an institutional issue--can a state court commit a taking? -- while slipping in a major rewrite of takings law that would undermine the Court's recent, unanimous effort to clarify it.Second, feigned obliviousness: The plurality opinion conveniently overlooks the Court's federalism jurisprudence even as it would expand the federal courts' power over state law. Third, knowing artlessness: Despite being written as a virtuoso performance -- identifying a case the Florida Supreme Court "overlooked" -- the plurality's treatment of state law betrays surprising naivete‚ as to how state law is made, though, as it turns out, this seeming naivete‚ serves the purpose of shifting power within states from legislatures to courts.
While the history and tone of Justice Scalia's close attention to beach access issues makes pique a surprisingly strong candidate for why the plurality went rogue, the more worrying explanation is the willingness of the more conservative members of the Court to expand their own power into new areas of state law without the slightest sign of support from the political branches. There is a danger that conservative attacks on the courts over decisions on controversial social issues will distract from a more basic problem: If the Court's enforcement of federalism rests on what Justice O'Connor called Congress's "underdeveloped capacity for self-restraint," we suggest that commentary should focus on the Court's own similarly underdeveloped capacity.