Friday, April 12, 2013
Over at Land Use Prof, Jessie Owley highlights Kansas' attempt to rid the state of the scourge of sustainable development:
Politicians in Kansas . . . seem to have been contemplating the power of law to dictate sustainability rules. House Bill No. 2366 currently before the Kansas state legislature would make it illegal to use “public funds to promote or implement sustainable development." Frankly with the trouble surrounding just trying to define what should be considered "sustainable development," I am not sure how meaningful such a law would be -- put gotta appluad tease Kansas for trying. As a professor at a public school, I find the provision restricting the teaching of sustainability to be especially worrisome [no public funding can be used for "materials prepared or presented as part of a class, course, curriculum or instructional material"].
Next thing you know, states will be outlawing climate change.
Nestor Davidson (Fordham) has posted New Formalism in the Aftermath of the Housing Crisis (Boston University Law Review) on SSRN. Here's the abstract:
housing crisis has left in its wake an ongoing legal crisis. After
housing markets began to collapse across the country in 2007,
foreclosures and housing-related bankruptcies surged significantly and
have barely begun to abate more than six years later. As the legal
system has confronted this aftermath, courts have increasingly accepted
claims by borrowers that lenders and other entities involved in
securitizing mortgages failed to follow requirements related to
perfecting and transferring their security interests. These cases –
which focus variously on issues such as standing, real party in
interest, chains of assignment, the negotiability of mortgage notes, and
the like – signal renewed formality in nearly every aspect of the
resolution of mortgage distress. This new formalism in the aftermath of
the housing crisis represents something of an ironic turn in the
jurisprudence. From the earliest history of the mortgage, lenders have
had a tendency to invoke the clear, sharp edges of law, while borrowers
in distress have often resorted to equity for forbearance. The
post-crisis caselaw thus upends the historical valence of lender-side
formalism and borrower-side flexibility.
Building on this insight, this Article makes a normative and a theoretical claim. Normatively, while scholars have largely embraced the new formalism for the accountability it augurs, this consensus ignores the trend’s potential negative consequences. Lenders have greater resources than consumers to manage the technical aspects of mortgage distress litigation over the long run, and focusing on formal requirements may distract from responding to deeper substantive and structural questions that still remain largely unaddressed more than a half decade into the crisis. Equally telling, from a theoretical perspective, the new formalism sheds light on the perennial tension between law’s supposed certainty and equity’s flexibility. The emerging jurisprudence underscores the contingency of property and thus reinforces – again, ironically – pluralist conceptions of property even in the crucible of hard-edged formalism.
Thursday, April 11, 2013
Slate profiles the "Door to Hell" in Derweze, Turkmenistan:
In 1971 a Soviet drilling rig rumbled across the hot, expansive Karakum desert of Turkmenistan in search of natural gas. They found a large gas pocket near the 350-person village of Derweze, but as the team drilled into the earth, the rig punctured the cavern and collapsed into it, creating a 328-foot crater leaking deadly natural gas. The Soviets abandoned their rig and lit the hole on fire. It has been burning for 40 years.
The article also lists these other places of neverending fire:
- Centralia, the Pennsylvania town sitting atop a massive coal fire
- Burning Mountain, the 6,000-year-old coal fire that moves one meter per year
- Yanar Dag, the "fire mountain" of Azerbaijan
Nestor Davidson (Fordham) has posted A Most Useful Ball of Thread (Journal of Affordable Housing & Community Development) on SSRN. Here's the abstract:
This book review of Navigating HUD Programs: A Practitioner’s Guide to the Labyrinth (George Weidenfeller & Julie McGovern eds., 2012) discusses the approach the book takes to a range of HUD programs, discusses some intimations of reform efforts suggested by the authors, and explores ways in which the book’s guidance reflects potential benefits in nascent HUD efforts at programmatic consolidation and modernization.
Wednesday, April 10, 2013
Over at Concurring Opinions, Meredith Render meditates on death and meaning of ownership:
Herein enters the perennial problem of death. When an owner is a natural person (rather than, for example, a corporation), then death would seem to present an obstacle to owning. When an owner dies, her capacity to make decisions about the use of an entity is terminated. Unlike in the newborn example, that capacity is not dormant, it is extinguished forever. If the capacity to exercise control over an entity is a necessary criterion of ownership, we would not expect deceased people to be capable of ownership. This intuition is supported by the fact that generally when an owner dies, the object of ownership passes (by will or intestate succession) to another owner. In this instance, there is no continuity of “ownership” – the new owner does not act on the behalf of the deceased owner – the ownership simply ends with the owner.
A notable exception to this scenario exists in the context of trusts. A trust presents challenge to our conventional understanding of “ownership,” – and particularly to the idea of ownership as a capacity. This is so not only because “ownership” is split in the context of a trust between equitable and legal owners, but also because some degree of control over the trust assets seems to be retained by the settlor. In this sense, the settlor seems to continue to act as a kind of “owner” of the assets, even though the settlor may be deceased. This phenomenon is sometimes referred to as “dead hand control.” Lately I’ve been thinking about this phenomenon in the context of the commitments implicit in our concept of “owner.” The interplay of these ideas is especially interesting in the context of what is sometimes described as a “dynasty trust.” A dynasty trust has the potential to endure into perpetuity, long after the settlor is deceased. I’ll be posting more on dynasty trusts, death and the concept of “owner” in the weeks to come.
Adam Mossoff (George Mason) has posted How Copyright Drives Innovation in Scholarly Publishing on SSRN. Here's the abstract:
copyright policy is framed solely in terms of a trade off between the
benefits of incentivizing authors to create new works and the losses
from restricting access to those works. This is a mistake that has
distorted the policy and legal debates concerning the fundamental role
of copyright within scholarly publishing, as the incentive-to-create
conventional wisdom asserts that copyright is unnecessary for
researchers who are motivated for non-pecuniary reasons. As a result,
commentators and legal decision-makers dismiss the substantial
investments and productive labors of scholarly publishers as irrelevant
to copyright policy. Furthermore, widespread misinformation about the
allegedly “zero cost” of digital publication exacerbates this policy
This paper fills a gap in the literature by providing the more complete policy, legal and economic context for evaluating scholarly publishing. It details for the first time the $100s millions in ex ante investments in infrastructure, skilled labor, and other resources required to create, publish, distribute and maintain scholarly articles on the Internet and in other digital platforms. Based on interviews with representatives from scholarly publishers, it reveals publishers’ extensive and innovative development of digital distribution mechanisms since the advent of the World Wide Web in 1993. Even more important, this paper explains how these investments in private-ordering mechanisms reflect fundamental copyright policy, as copyright secures to both authors and publishers the fruits of their productive labors. In sum, copyright spurs both authors to invest in new works and publishers to invest in innovative, private-ordering mechanisms. Both of these fundamental copyright policies are as important today in our fast-changing digital world as they were in yesteryear’s world in which publishers distributed scholarly articles in dead-tree format.
Tuesday, April 9, 2013
A pocket neighborhood is a grouping of smaller residences, often built around a common courtyard, designed to promote a heightened sense of community and neighborliness. In the last few months, they've gotten good press on the Huffington Post, the Atlantic Citites Blog, and Yahoo. From the Yahoo story:
Who likes pocket neighborhoods? [Architect Ross Chapin] argues that we’re all drawn, as social creatures, to community. But in the 15 years since he first developed pocket neighborhoods he’s found a few groups who really identify with the idea.
“One is the baby boomers, as they move toward retirement,” Chapin said. “We’re seeing huge numbers of people who are trying to imagine their dream home for the next part of their life. A house that’s big enough but not too big, simpler and where the key notes are quality and community.” Other groups include active single women as well as echo-boomers — the 20- and 30-somethings trying to define their idea of the dream home.
Police said Monday an unknown number of culprits made off with 5 metric tons (5.5 tons) of Nutella chocolate-hazelnut spread from a parked trailer in the central German town of Bad Hersfeld over the weekend.
If the authorities are smart, they'll start by interviewing Columbia students studying abroad in Germany this semester. Additionally, everyone in Germany should be keep their eyes peeled for anyone trying to steal an entire freight train worth of bananas.
This article was given as the 6th Annual Wolf Family Lecture on the
American Law of Real Property, University of Florida Levin College of
Law (2013). It draws on property law discussions in Richard R.W. Brooks
and Carol M. Rose, Saving the Neighborhood: Racially Restrictive
Covenants, Law, and Social Norms (Harvard Univ. Press 2013). The article
outlines the ways in which constitutional law and property law engaged
in a dialog about white-only racial covenants from their early
twentieth-century origins to the middle of the twentieth century and
beyond. After a shaky beginning, both constitutional law and property
law became relatively permissive about racial covenants by the 1920s.
But proponents of racial covenants had to work around property law
doctrines — including seemingly arcane doctrines like the Rule Against
Perpetuities, disfavor to restraints on alienation, "horizontal
privity," and "touch and concern." Moreover, property law weaknesses
gave leverage to civil rights opponents of covenants, long before
Shelley v. Kraemer (1948), the major constitutional case that made these
covenants unenforceable in courts. Even after Shelley's constitutional
decision, property law continued to be a contested area for racial
covenants, with echoes even today.
Monday, April 8, 2013
The New York Times takes a look at the history of the Rembrandt, the first co-op building in the US:
Although an 1882 pamphlet issued by the developers renounced “any socialistic union, even of the most plausible and conservative character,” there was talk of buying coal and ice in bulk and retaining a common staff for cooking and laundry.
The developers said that they were looking for “people of means and good social standing”; the advent of the resident-owned building, and hence the co-op board, allowed control over one’s neighbors, which was something no other apartment house could provide.
Jane Baron (Temple) has posted Rescuing the Bundle of Rights Metaphor in Property Law (Cincinnati Law Review) on SSRN. Here's the abstract:
much of the twentieth century, legal academics conceptualized property
as a bundle of rights. But property theory today is deeply divided
between theorists who focus on property’s ends, i.e., its reflection of
values such as democracy or human flourishing, and those who focus on
property’s means, i.e., its use of qualities such as modularity and
exclusion to manage complexity in a cost-effective way. The
bundle-of-rights conceptualization has been swept up into the
controversy, becoming the particular target of means-focused theorists,
who argue that the bundle conceptualization obscures critical features
of the property system, most notably its use of strategies of exclusion,
in rem rights, and indirectness. These theorists assert that,
twentieth century wisdom notwithstanding, property is not a bundle of
rights but rather is a law of things.
Contrary to these theorists, this Article argues that the bundle-of-rights conceptualization remains useful both descriptively and normatively. First, the bundle conceptualization produces more precise specification of the legal relations of parties in both simple and complex property arrangements. Second, it clarifies the normative choices that underlie decisions about property. Third, it focuses attention on the quality of the relationships that property constructs. Finally, bundle-of-rights analysis generally forces information forward. Because the information produced by the granular analysis of property bundles is useful, the bundle of rights metaphor should not be displaced or abandoned. Indeed, the complexity of contemporary property issues — and in particular their growing connection to the alternative legal fields of privacy and intellectual property — makes the bundle conceptualization all the more fruitful.