April 13, 2012
Confederate patent law
In 1857, Oscar Stuart applied for a patent for an improved plow, invented by his slave Ned. The U.S. Patent Office denied his application on the grounds that Ned, the inventor, was not a citizen, while Stuart, the slave owner and citizen, was not the inventor. The following year, Joseph Davis (brother of future Confederate President Jefferson Davis) applied for a patent for a ship's propeller, invented by his slave Benjamin Montgomery. Like Stuart's application, the patent office denied this one also.
In 1861, the Confederate Congress established a patent office. The Confederate patent law specified that a slave owner could receive a patent for inventions by his or her slave. Here's the statute.
Between 1861 and 1865, 266 patents were issued. Yet, Benjamin Montgomery was again denied a patent for his propeller in 1864 by the Confederate patent office. Unfortunately, almost all of the records of the patent office were lost when Richmond was captured in April 1865.
What relevance does Confederate patent law have to either race in America or patent law today? I can't see any relevance, but I still think it's interesting.
Trusts, Russian Oligarchs, Real Estate, & Divorce
The N.Y. Times examines the lives of fabulously rich Russian oligarchs and does a rundown on the property problems that pop-up when the super-rich divorce each other:
Ms. Rybolovleva has argued in court filings that she has a legitimate claim on the Palm Beach property as part of the divorce. Her husband made their daughters Ekaterina and Anna, 11, the only beneficiaries of the trust without informing her, said one of her lawyers, David Newman of Day Pitney. “This is a scam to make sure these assets are in other people’s hands and not available to be dealt with in accordance with the Swiss court order,” Mr. Newman said. Ms. Bersheda said Mr. Rybolovlev’s moves to set up trusts for the real estate were “succession planning.”
Carter on the Estate Tax
Elizabeth Carter (LSU) has posted New Life for the Death Tax on SSRN. Here's the abstract:
This article examines the ascendancy of wealth redistribution as the policy underpinning the federal estate tax through the lens of sociology and argues that, by attempting to ensure equal access to the American dream by penalizing only those who have fulfilled its promise, the federal estate tax places fundamental American values in irreconcilable conflict. The reason that the current system does not work, I argue, is rooted more in history and sociology than it is in economics. The solution is not necessarily the repeal of the federal estate tax. Nor is the solution replacing the estate tax with an inheritance tax, an accessions tax or taxing inheritances as income, as proposed by other commentators. The estate tax plays — or should play — an important role in ensuring vertical and horizontal equity in our federal tax system. Perhaps more importantly, it also has the potential to provide a safety net of revenue during times of exigency — such as that currently faced by our nation. In order to achieve these goals, however, we must first correctly recognize the fundamental problem with the current system. When the history of the tax is examined from a sociological and historical vantage point, the real problem is clear.
April 12, 2012
Matt Groening Reveals the Location of the Real Springfield
In an interview with the Smithsonian, the creator of the Simpson's finally sheds light on the location of the Homer's home:
Springfield was named after Springfield, Oregon. The only reason is that when I was a kid, the TV show “Father Knows Best” took place in the town of Springfield, and I was thrilled because I imagined that it was the town next to Portland, my hometown. When I grew up, I realized it was just a fictitious name. I also figured out that Springfield was one of the most common names for a city in the U.S. In anticipation of the success of the show, I thought, “This will be cool; everyone will think it’s their Springfield.” And they do.
The Long, Strange Battle Over Lee Harvey Oswald's Tombstone
The N.Y. Times describes the surprising legal battle to establish ownership over Lee Harvey Oswald's tombstone:
In the nearly 50 years since Mr. Oswald, the presumed assassin of President John F. Kennedy, was buried in Texas, the grave marker has been stolen from a cemetery, recovered by the police, hidden away for safekeeping, and passed around among distant relatives of the family that bought the home of Mr. Oswald’s mother after she died.
Katz on Formal Property Rights and State Power
Larissa Katz (Queens) has posted 'Governing Through Owners': How and Why Formal Private Property Rights Enhance State Power (Penn Law Review) on SSRN. Here's the abstract:
A system of formal private property rights is a network of offices through which states can allocate responsibility to individuals on a mass scale for a wide variety of tasks, including some of the state’s core governance functions. A system of property rights do not straightforwardly constrain the state; in some contexts, they enhance state power, too. Because many of the state’s core governance functions are territorially defined (such as the maintenance of peace and order within the territory, defense of the territory from external threats, and the provision of infrastructure), this phenomenon appears most clearly in the case of private property rights in land. A network of landowners is a useful (and sometimes crucial) tool that enables a state to govern locally in the farthest reaches of its territory, even when it lacks the capacity or will to use other more formal tools for governance, such as governing by bureaucracy or licence. Thus, it is useful to think of the state’s power to define property rights in a manner that includes the obligation to carry out core state governance functions as itself a mode of governance. I call this “governing through owners.”
This model of state-owner relations emerges from two important conceptual starting points: first, the nature of ownership as an office through which the state assigns burdens; and second, what I call the “survival conditions” of a territorially defined state, namely, the establishment of basic governmental functions throughout its territory.
April 11, 2012
News on the Takings Front
Over at Environmental Law Prof, Tim Mulvaney digs into all the happenings in Takings jurisprudence. First, Tim looks at two new state-level takings cases, Severence v. Patterson (Texas) and Borough of Harvey Cedars v. Karan (New Jersey). Tim then tries to figure out why the Supreme Court decided to hear Arkansas Game & Fish Commission v. U.S. He writes, "The Supreme Court's review . . . conceivably could touch on a host of takings issues, including the distinction between government torts and government takings, the reach of the categorical rule applicable to physical invasions set forth in Loretto, the uncertainties surrounding the “temporary” regulatory takings doctrine introduced in First English and refined in Tahoe-Sierra, and the question of whether the government’s intent—here, whether the government intended the water release to be a continually recurring event or a temporary measure—is relevant to determining whether a taking has occurred." The whole post is worth reading.
Klass on Renewable Energy v. Animal Welfare
Alexandra Klass (Minnesota) has posted Energy and Animals: A History of Conflict (San Diego J. or Climate and Energy Law) on SSRN. Here's the abstract:
Environmental groups, federal and state agencies, and others who support the development of renewable energy have struggled in recent years with the adverse impacts of such development on animals and animal habitat. Although renewable energy development has the benefit of creating energy without the greenhouse gas emissions associated with traditional energy development, it does so through an intensive use of land, including federal public lands, thus competing with animals and their habitat. Conflicts between energy and animals, of course, are nothing new. Congress, agencies, and courts have attempted for decades to balance the public interest in domestic energy development with the public interest in protecting animal species and habitat. This essay considers this history of conflict in an effort to determine whether these past disputes contain lessons for today’s efforts to balance renewable energy development and protection of animals. In doing so, this essay focuses on judicial decisions where courts have had to balance competing statutory and regulatory mandates to both develop domestic energy supplies, including coal, oil, natural gas, and hydropower, and to protect animal species and habitat. These cases illustrate that courts often are forced to strike a balance between energy development and environmental protection in the absence of clear statutory or regulatory guidance, leading courts to understandably defer to agency discretion when it appears that a careful consideration of the competing interests has occurred or when no statutory counterweight favoring animal species is in play. This essay concludes with some observations regarding current disputes over wind and solar development, and considers the benefits and drawbacks of various Congressional and agency approaches to reconciling this conflict.
April 10, 2012
Who Owns The Boardwalk?
The LA Times reports on the growing tension between merchants and the local homeless population over control of the boardwalk in Venice Beach:
The Los Angeles Police Department enforcement efforts, begun almost two months ago, were spurred by mounting complaints . . . that aggressive, intoxicated transients and violent disputes over vendors' spaces had made the boardwalk an increasingly lawless, frightening place.
Others say the city runs the risk of taming the wild and woolly atmosphere that has made Venice a destination that attracts 16 million people a year. "I wouldn't be surprised if this area became a little Santa Monica, with corporate businesses forcing out the independents," said Kenneth Karl, 40, a homeless man who occasionally slept at the beach before the curfew enforcement. "You wouldn't want that."
(photo credit: flickr user young grasshopper)
Reiss on Reforming the Residential Mortgage-Backed Securities Market
David Reiss (Brooklyn) has posted Reforming the Residential Mortgage-Backed Securities Market (Hamline) on SSRN. Here's the abstract:
This essay is a lightly-edited version of a talk given at the “Federal Housing Finance Policy, Secondary Mortgage Market Issues: Causes and Cures, Secondary Mortgage Market Reform” symposium at Hamline University School of Law. The issues that we are struggling with now are, in many ways, the equivalent of the issues that we struggled with during the Great Depression: what should housing policy look like and what decisions should be made in the next five years or so to bring us from crisis to stability? In all likelihood our answer to this question will define the housing market for generations. To help answer the question, this essay will proceed as follows. First, it will provide some context for American housing policy discussions. It will then outline three ethics that inform housing policy. The essay will then focus on one of the key issues that we face — what should happen with Fannie and Freddie as they exit conservatorship? It concludes by highlighting some of the other housing finance issues that must be addressed before we can move forward with a coherent plan of reform. These additional issues include, first, what is the future of the 30-year mortgage? Second, what is the fate of the lock-in, whereby a person could get a guaranteed interest rate prior to closing the loan? Third, what is the fate of the low-down-payment mortgage? Fourth, what is the appropriate role of the FHA in the context of the entire housing finance infrastructure, and in relationship to Fannie and Freddie in particular? And finally, how much will we allow the goal of increasing homeownership to impact the design of our housing finance system?
April 9, 2012
How Should Unmarried Couples Own Property?
Benny Kass at the Chicago Tribune answers some readers' questions:
When two unmarried people decide to buy property, they must have a partnership agreement, spelling out in writing such items as: Who pays what? What happens if one partner cannot pay his/her fair share of the monthly payment? What happens if one partner wants out of the transaction?
The Diamond Ring as Virginity Loss Insurance
Bookending last week's story on wedding dresses the Atlantic has a piece about the formerly sexist economics of diamond rings:
A now-obsolete law called the "Breach of Promise to Marry" once allowed women to sue men for breaking off an engagement. . . . The woman is lending her hand in marriage to the man, who promises to tie the knot at a later date. In the days of Breach of Promise, the woman would do this on an unsecured basis -- that is, the man didn't have to pledge any collateral -- because the law provided her something akin to bankruptcy protection. Put simply, if the man didn't fulfill his obligation to marry, the woman had legal recourse. This calculus changed once the law changed. Suddenly, women wanted an upfront financial assurance from their men. Basically, collateral. That way, if the couple never made it down the aisle, she'd at least be left with something. And that something was almost always small and shiny. The diamond ring was insurance.
Prum & Medders on Performance Bonds and Certified Green Building
Darren Prum (Florida State - Business) & Lorilee Medders have posted The Bonds that Tie: Will a Performance Bond Require That a Surety Deliver a Certified Green Building? on SSRN. Here's the abstract:
In 2006, the city of Washington, D. C. passed landmark legislation that introduced green building requirements for various types of structures into the jurisdiction over a five-year period. A noteworthy aspect of the legislation directed construction projects within the district to purchase green performance bonds up to $3 million to guard against a privately owned project’s failure to meet its green building aspirations. In essence, this law placed the burden of guaranteeing compliance with the government’s policy upon the contractors and sureties of a green building project.
Following the passage of this act, confusion amongst the construction industry and sureties occurred because a green performance bond did not exist and no one knew how to obtain one. Responding to this legislation, the Surety and Fidelity Association of America (SFAA) and the National Association of Surety Bond Producers (NASBP) sent a joint letter to the government of the District of Columbia outlining their concerns and explaining that they anticipated great reluctance on the part of sureties to issue such an instrument despite the creation of market demand. No matter the motivating source, this new requirement highlighted the need for some type of approach that provided a guarantee against injuries arising from a contractor that did not deliver a green building as promised.
Likewise, a lawsuit may occur between a project’s participants that emanates out of the failure to attain a coveted third party certification standard due to the complexities associated with building green. This may originate out of financial incentives provided by many jurisdictions to encourage the construction of green buildings or due to the many other claim possibilities available to an injured party. For example, a lawsuit occurred when one project in Maryland failed to achieve its green building objectives and did not qualify for the state’s financial incentives. In such an instance, some type of contractual guarantee from a surety could have provided accountability and a resolution for the green building issue without the need for legal action.
Given these needs for project participants and those associated with environmentally friendly governmental policies, the question remains as to whether a performance bond will provide sufficient coverage when a project fails to meet a sustainability objective, or if a separate instrument is needed to address the specific risks related to green buildings. This article seeks to address these issues.