Friday, July 20, 2012
Celeste Pagano (Oklahoma City) has posted Where’s the Beach? Coastal Access in the Age of Rising Tides (Southwestern U. Law Review) on SSRN. Here's the abstract:
As the dynamic and shifting strips of real estate we call beaches have for centuries raised tensions between public and private ownership and use, a variety of common law doctrines have evolved to manage those tensions. Legal scholars have championed one less-developed doctrine, rolling easements, as the solution to preserving beach access in the face of accelerating shoreline movements expected due to climate change. Stated simply, rolling easements allow for the public’s right to access a beach, once established under any of a variety of common law means, to migrate or “roll” with the movement of the beach itself.
Until recently, rolling easements were presumed by many to be the law of the State of Texas. Recently, the Texas Supreme Court decided this was not the case. After a five-year legal battle, the Court held in Severance v. Patterson that beach access easements do not “roll” when there are sudden shifts in the shape of a shoreline. In doing so, the Court upended decades of Texas precedent and signaled the beginning of the end of public access to many previously free and open beaches. The Court’s reasoning rested largely on the application of the doctrine of avulsion, a centuries-old rule that is often recited but, in reality, so seldom applied to take away coastal access rights from the public that it is does not accurately reflect any “rule” at work in most of our coastal states. Instead, most of the very few American courts addressing sudden losses of land along coastlines have found ways to preserve public beach access once it exists. This accords with the multivalent values inherent in beachfront land, and with the particular weakness of the expectation interest in physically-shifting real estate. It is therefore my contention that the Court in Severance incorrectly applied a doctrine that has always had an uneasy place in property law and ill serves the contemporary reality of beaches that are retreating due to sea level rise.
Thursday, July 19, 2012
Over at the Faculty Lounge, Al Brophy has a very thoughtful meditation on the future of the Joe Paterno statue in State College. Al writes, "There are a lot of factors one should consider in statue removal - like who had a say in the inital placement, what was known at the time of placement, what is known now, and the meaning of the statue now. A lot of those factors counsel in favor of removal, I suppose . . . . But I continue to think that the monument should be left up; now it can serve as a reminder of what happened." Al's sentiments are echoed in Ta-nehisi Coates' recent New York Times' column. Coates makes the case that removing the statue amounts to erasing history.
Although Al's position carries some real theoretical punch, I want to argue that it would be a mistake to leave the Joe Paterno statue intact.
On the larger point, I don't fully agree with the proposition that removing monuments amounts to "rewriting history." The fundamental difficulty with that position is that the landscape has never been a neutral record of the past. The built environment has always worked as a normative discourse fashioned by powerful groups and used to express messages about who belongs and who does not. Thus, changing the composition of a jurisdiction’s monuments does not erode any universal truth. Here in Kentucky, for example, there's a statue of Jefferson Davis under the rotunda of the capitol building with the inscription "Patriot - Hero - Statesman." Many Kentuckians remian committed to the proposition that removing the statue amounts to whitewashing Kentucky's history in the name of political correctness. But that just isn't true as a factual matter. Kentucky never seceded. Thousands and thousands of its sons died in the defense of Union. The statue isn't about history. It's about sending a (government sanctioned) message that blacks aren't welcome.
On the specific issue of the Joe Paterno statue, I don't think that leaving the sculpture intact would serve as a particularly good reminder of the shameful events at Penn State. The aesthetics of statue--it depicts a creepy-looking Paterno running onto a football field with his finger in the air--convey nothing about child abuse, shame, moral frailty, or abuse of power. Over time, the intact statue may do more to re-deify Paterno than address the problems so entrenched in the culture of Penn State. Moreover, I don't think Sandusky's victims, many of whom still live in State College, should be forced to confront a corporeal rendering of the man who may have enabled his conduct.
The best course of action, I argue, would be to remove the statue and then hold some kind of memorial competition to find its replacement. Done correctly, the destuction of the Paterno statue could initiate a process of critically rethinking what values the community holds and who deserves the honor of being remembered in steel and stone. A community-wide deliberation about what should replace Paterno would do more to promote reflection and sophisticated thought than simply leaving the statue intact.
Katrin Anacker (George Mason), James Carr (Fannie Mae), & Archana Pradhan (National Community Reinvestment Coalition) have posted Analyzing Determinants of Foreclosure of Middle-Income Borrowers of Color in the Atlanta, GA Metropolitan Area on SSRN. Here's the abstract:
Foreclosures have disproportionately affected borrowers and communities of color. Many studies have concentrated on the nation and specific metropolitan areas, but few academic studies have focused on Atlanta. Using a merged data set consisting of Home Mortgage Disclosure Act (HMDA), U.S. Census, and Lender Processing Services (LPS) data and utilizing a logistic regression model, we analyze the likelihood of foreclosure in the Atlanta, GA metropolitan area. We find that African American borrowers are 52 percent and Hispanic borrowers 159 percent more likely to go into foreclosure, controlling for key financial variables. We also find that African American middle-income borrowers are 35 percent more likely to go into foreclosure. Moreover, we find that exotic mortgage products, such as balloon mortgages, adjustable rate mortgages (ARMs) and mortgages with a prepayment penalty have a higher likelihood of foreclosure than standard 30-year fixed rate mortgages.
Wednesday, July 18, 2012
The New York Times runs a piece on the thriving black market for organs in Europe:
Facing grinding poverty, some Europeans are seeking to sell their kidneys, lungs, bone marrow or corneas, experts say. This phenomenon is relatively new in Serbia, a nation that has been battered by war and is grappling with the financial crisis that has swept the Continent. The spread of illegal organ sales into Europe, where they are gaining momentum, has been abetted by the Internet, a global shortage of organs for transplants and, in some cases, unscrupulous traffickers ready to exploit the economic misery.
Michael Lewyn (Touro) has posted Sprawl in Canada and the United States on SSRN. Here's the abstract:
The purpose of this article is to show that, in Canada as in the United States, government regulation promotes sprawl through anti-density zoning, minimum parking requirements, and overly wide streets. However, Canadian cities are less "sprawling" than American cities- perhaps because at least some of these regulations are less onerous than in the United States.
Tuesday, July 17, 2012
The Economist detects subtle changes in Houston's land use and energy policy:
At a casual glance, Houston looks much as it ever did: a tangle of freeways running through a hodgepodge of skyscrapers, strip malls and mixed districts. A closer inspection, though, shows signs of change. The transport authority, which branched into light rail in 2004, is now planning three new lines, adding more than 20 miles of track. [...] Other changes are harder to see. The energy codes for buildings have been overhauled and the city is, astonishingly, America’s biggest municipal buyer of renewable energy; about a third of its power comes from Texan wind farms.
Steven Hasty (Brooklyn - Student) has posted Protecting Tenants at Foreclosure by Funding Needed Repairs (Journal of Law & Policy) on SSRN. Here's the abstract:
Among the victims of the current mortgage foreclosure crisis, tenants of buildings in foreclosure are often innocent, harmed, and overlooked. When a landlord defaults on the mortgage, tenants often suffer from neglected repairs, lack of heat and hot water, and other code violations. A recent case from New York Supreme Court for Bronx County shows how tenants can use equitable arguments to force a lender to advance funds to a receiver in order to cover the cost of repairs, even before the lender obtains a judgment of foreclosure. This note argues that foreclosure courts should entertain tenants' equitable arguments and grant relief where appropriate, as well as for statutory reform to make relief more straightforward.
Monday, July 16, 2012
Def Leppard, a famous hair-rock band from the 1980s, has been in a protracted legal battle with Universal Records over how to split the royalties from its digital downloads. The details are a little sketchy but it seems that Universal owns all of Def Leppard's master recordings. The company, however, cannot put the music on iTunes without Def Leppard's permission. Instead of giving in to Universal's demands, Def Leppard has decided to take advantage of the copyright rule that grants compulsory licenses to musicians who want to record cover songs. Def Leppard has decided to record "cover songs" of its entire back catalogue and then put these files directly on iTunes. Here's an NPR story on the fiasco:
Shubha Ghosh (Wisconsin) has published Managing the Intellectual Property Sprawl on SSRN. Here's the abstract:
This paper, prepared for a May 2012 workshop at University of San Diego Law School on the Law & Philosophy of Intellectual Property, uses Robert Merges' Justifying Intellectual Property to develop a field of Intellectual Property Use, modeled on Land Use. Framing the argument around the elements of Merges' book, the author explains that intellectual property law and policy has overlooked he interests of users in favor of those of owners. The author examines Lockean, Kantian and Rawlsian theories of IP ownership to identify how users' interests can be recognized. The article ends with what a user centered approach to intellectual property would look like and a conclusion that intellectual property management will be an important focus for intellectual property scholarship and practice in the future.