October 19, 2012
How Do You Sell Stolen Art
Slate looks into the shadowy world of big-time art theives and the black market for stolen paintings:
Thieves offer paintings by the masters at incredible discounts. According to Joshua Knelman’s book Hot Art: Chasing Thieves and Detectives Through the Secret World of Stolen Art, a stolen painting usually goes for around 10 percent of its legitimate auction value in the first sale between criminal and shady dealer. The price is low because both parties are at risk. The initial buyers usually know the works are stolen, especially since experienced black marketeers typically buy only from thieves they’re already familiar with. In subsequent sales, the price usually jumps substantially as the risk of punishment drops. In the United States, for example, buyers can be prosecuted under the National Stolen Property Act only if the government can prove that they knew the item was stolen. Once a painting changes hands two or three times, buyers can plausibly (and sometimes honestly) claim that they thought it was legitimate.
(Pic: The most audacious art theft in history occurred in Boston on March 18, 1990 when thieves stole 13 pieces, worth $300 million, from the Isabella Stewart Gardner Museum. The prize was Vermeer's The Concert, which is considered to be the most valuable painting ever stolen. A reward of $5,000,000 is still offered for information leading to the paintings return.)
America's Most Dangerous Cities
Forbes ranks the troubled:
Roman said urban homicides tend to come in four forms: Women killing their children, family members killing each other, people killing other people they know, and “stranger crimes,” such as killings committed during a robbery or a drug deal gone bad. This last category is dwarfed by the other three, he said, and getting smaller all the time. Better policing has a lot to do with it, plus inventions like the cellphone, which has reduced the number of affluent customers wandering into dangerous parts of town to buy drugs. When it comes to the Most Dangerous Cities, Roman said, “your readership is not in danger.”
“Overwhelmingly when there’s a homicide, the two parties knew each other,” he said. “Violence begets violence.”
Penalver & Liivak on the Right to Not Use Property
Eduardo Penalver (Cornell) and Oskar Liivak (Cornell) have posted The Right Not to Use in Patent and Property Law on SSRN. Here's the abstract:
In Continental Paper Bag Co. v. Eastern Paper Bag Co., the Supreme Court, held (among other things) (1) that patent owners have an absolute right not to practice their patent and (2) that even these non practicing patent owners are entitled to the liberal use of injunctive relief against infringers. In eBay Inc. v. MercExchange, LLC, the Supreme Court softened the second part of that holding. In this essay, we argue that Congress or the Court should also reconsider the first, not because patents are not rightfully property but because the institution of property does not support such an absolute right not to use for reasons that are relevant to the question of nonuse in patent law. The Court's recognition of a robust right not to use patents was based on a flawed analogy to tangible property, which the Court understood as recognizing "the privilege of any owner of property to use or not use it, without question of motive." The Court's reasoning was flawed in two respects. First, the law of tangible property makes a sharp distinction between what we call derelict nonuse and attentive nonuse. With respect to the former, the law significantly hems in the rights of owners not to use their property, employing numerous doctrines, such as nuisance, abandonment, adverse possession, and permissive waste, to ensure that owners' decision not to use their property does not inflict harm on others. Even with respect to attentive nonuse, owners' rights are qualified, both by common law doctrines like necessity and by the state's power to override (or at least influence) owners' decisions about nonuse through eminent domain, regulation and taxation. Second, beyond its poor understanding of the law of nonuse as it relates to tangible property, the Court in Continental Paper Bag failed to consider the ways in which the reasons for recognizing a right not to use might differ in the contexts of patent and tangible property. Although the same basic considerations are at play in both contexts -- efficiency, autonomy, and personhood -- the implications of nonuse for these considerations differ in the patent context because of, among other things, information's nonrivalrous nature and because of the particularly powerful way that patent law constrains the freedom of nonowners. Taking these factors into account suggests not only that the normative case for recognizing a robust right not to use a patent (even attentively) is weaker than in the domain of tangible property but also that we ought to recognize an obligation for patent owners to disseminate their inventions. Recognition of such an obligation would significantly reduce the threats posed by so-called patent trolls and the high tech patent wars.
October 18, 2012
How to Break Your Lease
The Boston Globe recently offered a photo essay that offered tips on ending a lease early. The advice appears legally sound, if a little uncreative:
If you cannot sublet the apartment, speak to a qualified attorney who specializes in residential tenant’s rights to determine what options you have left to try to get out of your lease. For example, in some states, the landlord may not continue to hold you responsible for the lease once a new tenant moves in at an equal or greater price. Even if the new tenant signs at a lower price, the legal damages to the landlord would only include the difference between your rent and the new tenant’s rent for the duration remaining on your lease.
Bar-Gill & Persico on the Effect of Weak Property Rights on Exchange Efficiency
Oren Bar-Gill (NYU) & Nicola Persico (Northwestern) have posted Exchange Efficiency with Weak Property Rights on SSRN. Here's the abstract:
We show that the first welfare theorem obtains independently of the strength of property rights protection. In an exchange setting, a large class of legal rules (what we call generalized liability rules) are exchange-efficient. Included in this class are property rules (generalized liability rules with very large damages Ds), standard liability rules (generalized liability rules with Ds that track the owner's valuation), and even rules which afford possessory interests only very weak protection (generalized liability rules with very small Ds). This result corrects a previous misconception in the literature, and yields the provocative conclusion that strong property rights are not required for exchange efficiency.
October 17, 2012
Buenos Aires' Dog Poo Problems
An intriguing tale about law enforcement and social norms:
The dog owners and dog walkers of Buenos Aires are loath to pick up excrement, and it is rare to walk more than a block without encountering a turd. The piles of feces throughout the city are an odorous nuisance that restrict how people interact with public space, visually mar neighborhoods, and threaten public health.
A city ordinance demands excrement be picked up and properly disposed of in garbage receptacles, but with little to no enforcement, dog owners in Buenos Aires regularly flout the law. An 'if-my-neighbors-don't-see-me-it-doesn't-matter' mentality pervades the city and it's become a deep-rooted culture with a powerful feedback loop. Dog aficionados leave excrement behind because other dog aficionados leave excrement behind, and on and on.
Buchanan on Owning v. Renting
Neil Buchanan (George Washington) has posted Owning Versus Renting: Thoughts on Housing Policy, Tax Incentives and Middle Class Dreams on SSRN. Here's the abstract:
This document gathers together 22 essays that were originally published as online commentary by Professor Neil H. Buchanan, between 2008 and 2012. All but one of the essays first appeared on the Dorf on Law blog. In these essays, Professor Buchanan discusses the arguments for and against government support of individual home ownership. Most of the essays focus on how to move away from the model of individual ownership. The latter essays, however, begin to embrace the possibility that home ownership incentives should be expanded, to mitigate the current upside-down quality of those subsidies, and to preserve middle-class professional jobs. These essays were also included in the continuing legal education materials for the “Teaching Tax” session at the 2012 Joint Fall CLE meeting of the ABA Sections of Taxation and RPTE in Boston, on September 14, 2012.
October 16, 2012
The Contested Ownership of Eagle Feathers
The Bald and Golden Eagle Protection Act provides criminal penalties for anyone who possesses the feathers of the Bald Eagle. Nonetheless, the Justice Department has recently decided that it will allow members of federally recognized Indian tribes to own eagle feathers. The Washington Post reports:
This is a significant religious and cultural issue for many tribes, who were consulted in advance about the policy the department announced Friday.[...]
Under the new Justice Department policy, tribal members will not be prosecuted for wearing or carrying federally protected birds, bird feathers or parts. They also may pick up feathers found in the wild as long as they do not disturb federally protected birds or nests. Giving, lending or trading feathers or bird parts among tribe members, without any other compensation, also will be allowed.
Where Millionaires Live
(HT: Atlantic Cities Blog)
Kuo on the Public Necessity Defense in Takings Law
Susan Kuo (South Carolina) has posted Disaster Tradeoffs: The Doubtful Case for Public Necessity (Boston College Law Review) on SSRN. Here's the abstract:
government takes private property for a public purpose, the Fifth
Amendment requires just compensation. However, courts have long
recognized an exception to takings law for the destruction of private
property when necessary to prevent a public disaster. In those
circumstances, unless the state accepts an obligation to pay damages,
individuals must bear their own losses.
This Article contends that the public necessity defense should be rejected. First, the tight timeframe and limited options typical in a disaster response threaten to obscure the crucial role of government in planning for disasters and mitigating vulnerability. Second, and more fundamental, the deliberate infliction of harm remains wrongful, even if all available alternatives are worse and the situation could not have been averted or ameliorated through proper advance planning. A just-compensation rule — whether instituted via statute or judicial reinterpretation of the Fifth Amendment’s Taking Clause — would preserve the government’s emergency powers while reaffirming the rule of law and advancing the interests of social justice.
October 15, 2012
Shaming Property Violators
In Philadelphia, innovative City Councilman Bobby Henon has introduced a free app named CityHall, which allows private citizens to electronically shame property-owners who don't maintain their land:
Henon, who introduced his CityHall App last spring and quickly saw hundreds of Northeast residents download and use it, discovered that when property violations go viral, most offenders cave. If they don't, he'll summon them to public hearings and alert Licenses & Inspections - which is never good news for a noncomplying city property owner.
The Most Consistent Mistake Candidates Make at the AALS Hiring Conference
I've served on Kentucky's hiring committee for the last five years. Each hiring season, including this one, I've been dazzled by the candidates' accomplishments, scholarship, and grace under fire. There's only place where the conference really fails; It's difficult to get an accurate read on how enthusiastic any one candidate is for our institution. Assuming that a school cannot invite all the qualified applicants for callbacks, we'd prefer to invite those candidates who are both brillant and genuinely excited about our law school.
Candidates have the power to diminish this information gap. They seem reluctant, however, to close the interview with a sincere expression of interest. Every interview is a two-way street. Although the meat-market is organized for the benefit of the law schools, the interviews are also an opportunity for the applicants to evaluate the schools. Just as the school examines the candidate, the candidate should also be judging, assessing, and appraising the school. What's the vibe in the room? Have they done their due diligence on my scholarship? What seems important to them?
If at the end of the interview you really want the job, then say so. Before you leave, make it clear: "I'm really, genuinely, interested in your school (for X, Y, and Z reason) and would welcome the opportunity to do a callback." It seems simple enough to say, but the hiring chairs I've talked to report that applicants generally leave the room without giving any indication of their enthusiasm for our institutions. Closing an interview with a sincere expression of your desire for the position can only help your chances.
Berger on Elouise Cobell and the Mismanagement of Indian Property
Bethany Berger (UConn) has posted Elouise Cobell: Bringing the United States to Account (Book Chapter) on SSRN. Here's the abstract:
Elouise Cobell grew up in a home without running water or electricity, was educated in a one room school house, dropped out of college to care for her mother as she was dying from cancer, and was repeatedly dismissed as incompetent when she sought answers for federal mismanagement of Indian trust accounts. Before her death in 2011, however, she had founded the first Native American bank, won a MacArthur “genius” grant, been honored as a warrior by her tribe, and made the United States agree to pay 3.4 billion dollars — the largest federal class action settlement ever — for its mismanagement of Indian property. She died of cancer less than a year after President Obama signed the settlement in the massive class action that bears her name. The Supreme Court is currently considering whether to review the appellate court decision rejecting challenges to that settlement. This short chapter for a book profiling American Indian legal heroes tells Cobell's story and the story of the wrong she spent her life trying to correct.
October 14, 2012
Testimonial to Pat Randolph
Since I know that not all Property Profs also subscribe to the DIRT listserv (although you should), I wanted to share that fellow Property Prof and founder of DIRT, Professor Patrick Randolph of University of Missouri at Kansas City, passed away on October 12th. Pat Randolph has had an enormous impact on property professors and real estate lawyers across the country for decades.
Although I did not know Pat Randolph well, I've seen him at least once a year, usually twice a year, at meetings of the American Bar Association Real Property, Trust and Estate Law Section. He was always warm, funny, and kind to me. As his constant presence at ABA meetings demonstrates, Pat worked hard to create and maintain connections between academia and the practicing bar. The DIRT listserv is one example of those efforts. He will be missed.
Here's a little more detail about Pat's contributions to the academy and practice, courtesy of his friend and colleague, Professor Roger Bernhardt of Golden Gate University: