January 13, 2012
The Genius of Individual Ownership
When I teach Pierson v. Post, we spend a few minutes talking about why the judges just didn't order the litigants to just share the fox pelt. The point I try to make is that property law is biased in favor of individual ownership -- the administrative and monitoring costs are much lower. To drive this point home, I show the first 1:45 of this clip from the Big Bang Theory. The premise is that four close friends have pooled their money together and purchased a prop from the movie, Time Machine. Property-themed hilarity ensues:
Owley on Exacted Conservation Easements
Exacted Conservation Easements: Emerging Concerns with Enforcement (Probate & Property) on SSRN. Here's the abstract:
Enforceability of exacted conservation easements is uncertain. Legislators, activists, and academics did not contemplate the proliferation of exacted conservation easements when enacting, advocating for, and writing about state conservation easement statutes. Despite this early oversight, exaction has become one of the most common ways that conservation easements come into being. Enforceability of exacted conservation easements is a threshold question of analysis for the continued use of the tool. Assessing the validity, and thus legal enforceability, of the exacted conservation easements involves examining the state’s conservation-easement statutes and state servitude law as well as the underlying permit scheme.
This article presents a roadmap for investigating the enforceability of exacted conservation easements and makes three suggestions for improvement. First, states should address exaction in their state conservation-easement acts. Second, drafters should increase the precision and detail of the agreements, acknowledging and explaining the nature of the exaction and the underlying permitting law. Third, to clarify the elements and uses of exacted conservation easements to both agencies and citizens, government agencies that use exacted conservation easements should promulgate regulations related to their use. Such regulations should include ensuring that permit issuers retain third-party right of enforcements. This will keep the permitting agency involved even if it is not the holder of the exacted conservation easement.
Uncertainty in enforceability of exacted conservation easements calls into question their use as a method of land conservation. Furthermore, the questionable validity of exacted conservation easements indicates that the permits relying upon such exactions could be ill advised and potentially in jeopardy.
January 12, 2012
The Velvet Underground v. Andy Warhol: Whose Banana is it Anyway?
Legendary New York rock band, The Velvet Underground, has sued the foundation that manages artist Andy Warhol’s legacy. The band claims that the foundation has violated its trademark by licensing the banana image that appeared on the cover of its 1967 album to third parties, including cases for iPhones.
“The banana design became a symbol, truly an icon, of the Velvet Underground,” charged the suit filed Wednesday in Manhattan Federal Court.
The Velvets acknowledge that Warhol designed the cover and claim that he split a $3,000 advance with the band members as payment for his work.
January 11, 2012
Los Angeles v. Street Vendors
The NY Times, highlights a dispute between stret vendors and the city:
On the boardwalk of Venice Beach, the trinkets seem endless. There are glass pipes, copper necklaces, feather earrings and painted wooden skulls.
[For years], artists have set up tables to sell their wares. But last year, after a federal court dismissed a city ordinance as unconstitutional, the number of vendors hawking mass-produced items like T-shirts and costume jewelry grew rapidly. Soon, local people said, it was impossible to see the ocean from what is officially called Ocean Front Walk.
A new ordinance that goes into effect on Jan. 20 is intended to forbid only those who are selling items that could be considered to have utilitarian value — that means art is allowed but T-shirts are not. Mr. Rosendahl said that several city and First Amendment lawyers have assured him that the law will stand up in court.
Case of Week: MERS Has Standing to Foreclose
Via Joseph Singer, here's an interesting decision from the Michigan Supreme Court:
Contrary to the ruling of some other courts, the Michigan Supreme Court held that MERS (Mortgage Electronic Registration Systems) has standing to foreclose on properties for which it is the record holder of the mortgage even if it does not “own’ the note or the right to moneys under the note. The court held that because MERS is the “holder of the mortgage, MERS owned a security lien on the properties, the continued existence of which was contingent upon the satisfaction of the indebtedness.” The court concluded that the legislature would want the record mortgage holder to have the right to foreclose on the property. The case is Residential Funding Co. v. Saurman, 805 N.W.2d 183 (Mich. 2011).
Richardson on Virtual Property in Community Property States
Sally Richardson (Skadden) has posted How Community Property Jurisdictions Can Avoid Being Lost in Cyberspace (Louisiana Law Review) on SSRN. Here's the abstract:
This Article serves as the second Article in a three-part series on the issues virtual property raises in community property regimes. Building on Classifying Virtual Property in Community Property Regimes: Are My Facebook Friends Earnings, Profits, Increases in Value, or Goodwill?, this Article examines how community property jurisdictions should govern virtual property once it has been classified as community property. In doing so, the Article discusses how virtual community property should be managed and explores when such property should fall subject to rules of equal management, joint management, or sole management. Further, the Article considers how virtual property should be divided and valued at the termination of a community.
January 10, 2012
The Greatest Map of the U.S. Ever Made?
Slate has a wonderful article about David Imus' 2-year quest to design a new map of the United States:
David Imus worked alone on his map seven days a week for two full years. Nearly 6,000 hours in total... But Imus—a 35-year veteran of cartography who’s designed every kind of map for every kind of client—did it all by himself. He used a computer (not a pencil and paper), but absolutely nothing was left to computer-assisted happenstance. Imus spent eons tweaking label positions. Slaving over font types, kerning, letter thicknesses. Scrutinizing levels of blackness. It’s the kind of personal cartographic touch you might only find these days on the hand-illustrated ski-trail maps available at posh mountain resorts"
Hubbard, Palia, & Yu on Discrimination in the Mortgage Market
Glenn Hubbard (Columbia- Business), Darius Palia (Rutgers - Business), and Wei Yu (Cal State Poly - Business) have posted Analysis of Discrimination in Prime and Subprime Mortgage Markets. Here's the abstract:
This paper examines evidence of lending discrimination in prime and subprime mortgage markets in New Jersey. Existing single-equation studies of race-based discrimination in mortgage lending assume race is uncorrelated with the disturbance term in the loan denial regression. At the individual loan-level, we show that race is correlated with both observable and unobservable risk variables, leading to biased coefficient estimates. To mitigate this problem, we specify a system of equations and use a full information maximum likelihood (FIML) method that does not need to identify instrumental variables for system identification. We find that minorities are less likely to be rejected than whites in the subprime market. The individual loan-level FIML results are robust to using two-stage least squares when we examine discrimination at the neighborhood-level. We also find that the reduction in rejection rates to minority neighborhoods from 1996 to 2008 cannot be fully justified by risk, suggesting a relaxation of lending standards to minority neighborhoods. Using the methodology of Mian and Sufi , we also find evidence for strong credit supply effects.
January 9, 2012
Tree Law, Ctd
It appears that tree law is super-serious business in the hills of San Francisco. Here's an article from the Wall Street Journal about Larry Ellison's battle with his downhill neighbors:
Mr. Ellison's neighbors, Bernard and Jane Von Bothmer, purchased a $6.9 million home down the hill from the software mogul's place in 2004. In the ensuing years, the Von Bothmers let the trees in their expansive backyard grow. Three redwoods and an 80-year-old acacia have since risen by several feet.
In a trial set to begin June 6, the billionaire plans to take the Von Bothmers to state Superior Court in San Francisco over how the trees have obstructed his floor-to-ceiling window views of San Francisco Bay. The court date follows a lawsuit Mr. Ellison filed last June alleging he will suffer "irreparable injury" from lost property value if the court doesn't make the Von Bothmers cut their trees in order to "restore Plaintiff's views and sunlight."
Here are the most interesting bidbits from the article:
(1) San Francisco's "Tree Dispute Resolution Ordinance," which requires a complainant to seek "initial reconciliation" with the tree owner, file a "tree claim" if that doesn't work and, if necessary, submit the dispute to "binding arbitration." If all else fails, the dispute can go to court.
(2) The mention of Barri Bonapart, a lawyer in San Francisco who specializes in "tree and neighbor law." Her website is here: http://treelaw.com/
(Pic: Ellison's view with the tree's at issue)
A Roundup of Posts on the First Day of Property Class
Ben Barros:First Day of Class
Rose Cuison Villazor: Introducing Property
Al Brophy: What Case Should Be First
(pic: the author and his wee bean getting ready for Pierson v. Post)
Garnett on Managing the Urban Commons
Nicole Garnett (Notre Dame) has posted Managing the Urban Commons on SSRN. Here's the abstract:
Over the past several decades, debates about the appropriate tools of commons management have played themselves out in a particularly illuminating way in the management of urban public spaces. Some commentators urge, a là Garrett Hardin, that government coercion is needed to restore order to the urban commons. Others urge the privatization or quasi-privatization of urban public-spaces. On the ground in American cities, these theoretical arguments have been translated into concrete policies, especially policing strategies (e.g., order-maintenance and community policing) and urban development strategies (e.g., business improvement districts). This is an opportune time to reexamine the commons-management questions raised by these policies. The current economic crisis is forcing cities to scale back law enforcement efforts, as well as limiting the financing available to fund sublocal investments in urban public spaces. It is possible that these pressures will lead the current urban-commons compromise to unravel — leading to less public regulation of urban public spaces, more pressure for private regulation, or both. Using these tensions as a starting point, this Essay, which was written for a Pennsylvania Law Review symposium on “New Dimensions in Property Theory,” reflects critically upon the optimal regulation of urban public spaces as well as the possibility of cooperative commons management arising in the absence of government coercion.