August 24, 2012
Man Buys Island, Controls Lives of Thousands
The New York Times has an intriguing article about Larry Ellison's purchase of the Hawaiian island of Lanai. The article demonstrates, very poignantly, the relationship between property ownership and power:
Lanai’s new owner is Larry Ellison, a co-founder of Oracle. He bought 98 percent of the island — the remainder is government property and privately owned homes . . . . Mr. Ellison now owns the [only] gas station, the car rental agency and the supermarket. He owns . . . the two Four Seasons resorts, two championship golf courses, about 500 cottages and luxury homes, a solar farm, and nearly every single one of the small shops and cafes that line Lanai City. He owns 88,000 acres of overgrown pineapple fields and arid, boulder-strewn hills, thick with red dust, as well as 50 miles of beaches.
Sally Kaye, a former prosecutor . . . wrote in an open letter to the new owner that was published by Honolulu Civil Beat, a news site. She described Lanai as an island that had “been owned and exploited by one really rich guy or another” for 150 years and whose residents live in a “medieval lord-of-the-manor system of control.”
Lovett on Rules v. Standards Debate in Louisiana Law
John Lovett (Loyola New Orleans) has posted Love, Loyalty and the Louisiana Civil Code: Rules, Standards and Hybrid Discretion in a Mixed Jurisdiction (Louisiana Law Review) on SSRN. Here's the abstract:
article examines the design of legal directives found in and surrounding
the Louisiana Civil Code through the prism of the classic rules versus
standards debate. The Preliminary Title portion of the article
introduces the vocabulary, descriptions and justifications typically
displayed in jurisprudential debates over the propriety of rules and
standards. Books One, Two and Three of the article analyze the extent
to which several significant legal regimes in the Louisiana Civil Code —
regimes that are likely to affect individuals in moments of personal
crisis, when they enter into and exit from intimate personal
relationships and when their love and loyalty to one another and to
other intimate associates is most severely tested — have incorporated
open textured standards as a primary form of rule design, have resisted
discretionary remedialism by remaining tethered to relatively
crystalline rules or have produced models of hybrid discretion.
Although the author originally expected to discover that Louisiana private law had largely embraced discretionary decision making within the realm of the Civil Code, punctuated with occasional moments of discretion skepticism, just as Niall Whitty has observed occurring in Scotland, the article’s analysis reveals that Louisiana has not evolved so decisively in the direction of standard based decision making models. Indeed, in the particular areas of private law examined (family law, co-ownership, and the inter-relationship between forced heirship and undue influence claims challenging wills), the author finds that Louisiana’s private legal order has only been partially transformed by the general trend toward discretionary remedialism that scholars like Whitty have observed occurring in other legal regimes. The article concludes by pointing to a number of additional concerns that should inform further scholarship examining whether Louisiana has assembled the proper mix of rules and standards.
August 23, 2012
The Boston Globe Asks, "Who Owns You After You Die?"
The Boston Globe describes an effort, spearheaded by Bill Cosby (no, seriously), to enact postmortem publicity rights in Massachusetts:
If the bill becomes law, people in Massachusetts—most notably those who, like Bill Cosby, have built up bankable personas over the course of their lives—will be able to treat their identities as pieces of property that continue to exist in the world long after they do. For 70 years after your death, according to the proposed bill, your identity will legally live on, and your heirs will be able to own it, or sell it, or sue anyone who uses it without asking.
This seems like a pretty terrible idea. Is there any argument that it's public's interest to grant the already-extremely-rich extensive control over their personaes for 70 years after their deaths? Someone needs to remind the legislature "that the earth belongs in usufruct to the living; that the dead have neither powers nor rights over it." That's true even if the dead were excellent pitchmen for Jello pudding pops.
Borden & David on Sales of Church Property to Parishioners
Bradley Borden (Brooklyn) and Katherine David (Strasburger & Price LLP) have posted Sales of Church Real Property to Parishioners (Tax’N Exempts) on SSRN. Here's the abstract:
This Article examines the rules that govern the taxation of sales of property from a tax-exempt entity to its members. The case law and rulings in this area focus on transfers from churches to parishioners, so the article adopts the focus as well. It reveals that if the sales do not make the tax-exempt entity a dealer in real property, any gain the tax-exempt entity recognizes should be excluded from unrelated business taxable income. If the tax-exempt entity is a dealer in real property, the sales may still be excluded from UBTI if the sales are related to the entity’s exempt purpose. Because the rules governing dealer classification do not provide a bright-line demarcation, the Article recommends that Tax-exempt entities that contemplate selling real property may consider a belt and suspender approach and, when possible, structure the sales to satisfy both exclusions.
August 22, 2012
Salkin on Green Energy and Local Land Use Regulation
Patricia Salkin (Touro) has posted Key to Unlocking the Power of Small Scale Renewable Energy: Local Land Use Regulation (Journal of Land Use & Environmental Law) on SSRN. Here's the abstract:
This article provides an overview of some of the strategies that have been used to increase the use of small-scale renewables, focusing on non-commercial renewable energy systems installed at the home or business level. The article begins in Part II with a discussion of various renewable energy incentives offered by the federal and state governments to promote the use of these alternative sources of electricity, including financial and permitting incentives. Part III continues with a detailed examination of how the land use regulatory system can be used to promote small-scale renewable energy by employing traditional zoning techniques, asserting that without an appropriate local land use regime, the incentives reviewed in Part II cannot be effectively utilized. Part IV concludes with a warning to local governments that if they fail to accommodate the emerging federal and state policies supporting the siting of renewable energy sources, they may face preemptive statutory measures in the area of land use regulation. This creates perhaps the greatest incentive for local governments to plan and regulate responsibly for promoting the appropriate use of small-scale renewable energy.
August 21, 2012
Living Without Parking
Oregon Public Broadcasting looks at the rise of new apartment buildings in Portland that offer no offstreet parking. The article explains that developers are constructing more parking-less buildings because of new demand, not any change in city parking policies. What's driving the demand? First and foremost, affordability. As one developer noted “Parking [on] site is the difference between a $750 apartment and a $1,200 apartment.” Second, Portalnd has a growing number of citizens who just don't own a car.
A Contender for Most Spiteful Father of 2012
Jezebel picks up on a really nasty T&E dispute coming out of New York. According to the story, the late Frank Mandelbaum insisted in his will that his gay son had to marry a woman for that branch of the family to share in the inheritance.
Mandelbaum's son is attacking the gift in court. His attorney writes, "Requiring a gay man to marry a woman . . . to ensure his child’s bequest is tantamount to expecting him either to live in celibacy, or to engage in extramarital activity with another man, and is therefore contrary to public policy. There is no doubt that what [Frank Mandelbaum] has sought to do is induce Robert to marry a woman."
Stein on a Potential Housing Bubble in China
Gregory Stein (Tennessee) has posted Is China's Housing Market Heading Toward a US-Style Crash? (Arizona Journal of International and Comparative Law) on SSRN. Here's the abstract:
This article aims to determine whether China is heading toward a U.S.-style market crash in its housing market. Rather than attempting to maintain any suspense, I will disclose here that my conclusion is, “Who knows?” China and the United States have dramatically different histories, cultures, governments, economies, and legal systems. Anyone who claims to have a definitive answer to this question is overly confident.
My more modest goals in this article are to examine the available evidence and see which way it seems to point. The article begins by listing and describing several different ways in which the American housing market failed. It then evaluates the consequences of these failures for the U.S. housing market. Next, the article demonstrates some of the key respects in which the Chinese market differs from the market in the United States. This central portion of the article emphasizes just how difficult it is to make predictions about what might happen in one nation’s housing market based on the experiences of another nation that differs in so many significant ways. Finally, the article provides a description of some of the worrisome similarities between the Chinese and American housing markets. To the extent the previous analysis may have comforted the reader into believing that the Chinese market is unlikely to experience a downturn anytime soon, this last discussion will create some apprehension by highlighting some of the ways in which China might, in fact, be heading down the same path as the United States.
August 20, 2012
Housing in Haiti
The New York Times has a piece that examines the housing situation in Haiti two-and-a-half years after the devastating earthquake. The news isn't good:
Two and a half years after the earthquake, despite billions of dollars in reconstruction aid, the most obvious, pressing need — safe, stable housing for all displaced people — remains unmet.
In what international officials term a protracted humanitarian crisis, hundreds of thousands remain in increasingly wretched tent camps. Tens of thousands inhabit dangerously damaged buildings. And countless others, evicted from camps and yards, have simply disappeared with their raggedy tarps and rusty sheet metal into the hills.
New Casebook Announcement
Peter Gerhart, from Case Western Reserve, has put out a new first-year Property book. It's entitled Property: Our Social Institution. According to the press release, "The book takes a functional perspective, viewing property law to serve the social function of determining who should make decisions about resource use and how those decisions ought to be coordinated with the relevant interests of others. The book presents traditional property cases and doctrines but rearranges them with a view to understanding the six functions of property law: to divide resources between private and non-private property, to assign ownership rights in private property, to police the boundary between exclusion and access, to coordinate private decisions about use, to coordinate temporal decisions about use, and to mark the boundary between individual rights and rights of the community." A detailed table of contents is available at http://law.case.edu/faculty/gerhart_peter/gerhart_casebook.pdf.Faculty members interested in receiving a review copy of the book may write Professor Gerhart at firstname.lastname@example.org.
Dagan on Private Law Pluralism and the Rule of Law
Hanoch Dagan (Tel Aviv) has posted Private Law Pluralism and the Rule of Law on SSRN. Here's the abstract:
This Essay considers whether a pluralist account of private law can, notwithstanding its multiplicity, its dynamism, and its disavowal of neutrality, comply with the rule of law. My focus will thus be on two aspects of the rule of law: as a requirement that law be capable of guiding its subjects’ behavior, and as a prescription that law not confer on officials the right to exercise unconstrained power. At first glance, a pluralist and perfectionist understanding of private law is vulnerable on both the guidance and the constraint fronts, but this impression is fortunately incorrect. Private law pluralism neither requires nor should it imply adopting the dubious nominalistic approach of case by case adjudication, which indeed undermines guidance. Rather, properly understood, private law pluralism supports, even requires, relatively stable and internally coherent — albeit properly narrow — doctrinal categories. Each such private law institution is governed by fairly precise rules alongside informative standards founded on the regulative principles of these institutions, enabling people to predict the consequences of future contingencies and to plan and structure their lives accordingly. These private law institutions are shaped and developed through both legislation and adjudication. Courts are appropriately involved in many of these processes because at least insofar as private law is concerned they typically enjoy no less legitimacy, from either a participation or an accountability perspective, than legislatures. Likewise, while the plurality of values involved in the molding of our private law institutions’ regulative principles makes this a challenging endeavor, we have no grounds for assuming that the requirement of normative contextual inquiry typifying common law adjudication does not reliably constrain this judicial power.