January 11, 2013
A reader of the blog asks the following question:
As a result of some family issues, I'm going to need to do a bunch of make-up classes in my property course this semester. Are you aware of any short (less than an hour) movies that I could have the class watch during my absence? I'm looking for something (fiction or non-ficiton) that actually grapples with significant property issues. In other words, nothing like Body Heat.
What Happened to My 40 Acres and a Mule?
Henry Louis Gates looks at the origins (and eventual collapse) of the promise of 40 acres & a mule:
And what happened to this astonishingly visionary program, which would have fundamentally altered the course of American race relations? Andrew Johnson, Lincoln's successor and a sympathizer with the South, overturned the Order in the fall of 1865, and, as Barton Myers sadly concludes, "returned the land along the South Carolina, Georgia and Florida coasts to the planters who had originally owned it" -- to the very people who had declared war on the United States of America.
January 10, 2013
How NIMBYs "Greenmail" Developers
Curbed LA runs a scathing piece on "a practice sometimes called 'greenmail,' in which businesses and homeowners groups use the threat of [environmental] lawsuits to generate cash from developers for things that have nothing to do with the environment."
Curbed has a leaked settlement between the La Mirada Avenue Neighborhood Association and a local developer:
The leaked agreement states that the developer will pay to cover attorney's fees and costs: "[redacted] shall pay and deliver to La Mirada the sum of NINETY THOUSAND DOLLARS ($90,000) for La Mirada's costs, and attorney's fees and costs." The developer also agreed to pay a monitoring payment: "[redacted] shall pay to La Mirada Avenue Neighborhood Association of Hollywood the sum of TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000) to be used as La Mirada sees fit." In exchange for this payment, "La Mirada ... shall not commence, support, file, or participate in any administrative appeal of any litigation ... challenging or in any way attempting to interfere with or otherwise modify, limit or delay the Revise Project."
Claeys on Productive Use in Acquisition, Accession, and Labour Theory
Eric Claeys (George Mason) has posted Productive Use in Acquisition, Accession, and Labour Theory on SSRN. Here's the abstract:
American property scholarship is sceptical of Locke’s theory of labour.
Robert Nozick (in Anarchy, State and Utopia (1974)) and Jeremy Waldron
(in The Right to Private Property (1986)) are both assumed to have
discredited Locke’s conception of labour. Locke’s theory seems
incoherent because it seems to trade inconsistently on both rights-based
and utilitarian components. And contemporary legal scholars are
generally uninterested in how law implements moral theories of rights.
In political-philosophy scholarship over the last generation, however,
Locke’s theory of labour has been substantially rehabilitated. A more
charitable line of scholarship construes Locke – like many natural-law
or – rights thinkers before him – as propounding a rights-based theory
justifying consequentialist reasoning to secure rights. In this
scholarship, the moral right to labour seems more sensible because
‘labour’ is justified in relation to the responsibility to produce goods
contributing to human self-preservation or – improvement.
This book chapter restates productive labour theory for contemporary legal scholars. The chapter shows how productive labour theory anticipates and avoids the most common sources of scepticism toward labour theory among contemporary legal scholars. The chapter also illustrates how productive labour supplies a moral foundation for legal property rights, some focus to those rights, and a substantial amount of flexibility how to qualify such rights. The chapter illustrates using: the acquisition doctrines for capturing chattels; the tort doctrine regulating disputes in which one appropriator interferes with another’s attempts to capture chattels; and the accession-related fixture and ratione soli rules, both of which take chattels out of the coverage of capture doctrine.
January 9, 2013
Buffy v. Edward Remix Reveals Copyright Issues on YouTube
If you've never seen the brilliant remix of Buffy, the Vampire Slayer and Twilight, which recasts the brooding romantic vampire Edward as a creepy stalker, and provides some pretty on-point commentary on the current teen paranormal romance genre, check it out here.
Even though the remix, which was first uploaded to YouTube three and a half years ago has received 3 million views on that site, it has been removed. The creator, Jonathan McIntosh, recounts the exhausting and frustrating story on his website. The upshot -- even though the remix was actually cited by the US Copyright Office as an example of transformative noncommercial video work -- YouTube will only respect fair use arguments if the copyright holder acknowledges them.
Jonathan acknowledges the valuable advice of New Media Rights, which is affiliated with California Western School of Law. Check out their work here.
Why Are There Vacant Storefronts?
Matt Yglesias asks some questions about the boarded up commerical property in San Diego:
Downtown San Diego, for example, features a lot of unemployed storefronts these days. It's simple enough to say that this has something to do with the real estate boom of some years ago and its subsequent unwinding, but you ought to be able to feel the tug of the classical intuition that this can't really happen. There should be some non-zero price at which the storefronts lease. And yet there they stand vacant. And the idea that it's microeconomics all the way down and unemployed storefronts must be caused by bad government regulations standing in the way of the market is even less plausible with regards to these storefronts than with regards to people. After all, this is relatively new construction that we're talking about. Burdensome regulation should stop the buildings from being built in the first place, not induce people to build unleasable structures.
There are a few things that could explain this. First, zoing regulations might limit potential uses. Second, a store-owner might not want to rent to a marginal tenant (one whose business has a high chance of failure) because the cost of eviction is high. Third, business owners in a week economy might not be able to turn a profit even if the rent is extremely cheap. That is, rent is only one of many business expenses. If profits don't cover the cost of permits, utilities, taxes, furniture, and employee salaries, then it doesn't matter how good a deal you get on rent.
January 8, 2013
When is it time to take down memorials?
Thought-provoking piece in the New York Times today about the discussions in Newtown, Conn. regarding the spontaneous and often homemade memorials to those who died at Sandy Hook. The article mentions that many of the flags made from bedsheets, or signs made from plywood violate homeowner's association covenants, but they also violate sign ordinances, zoning, and other laws. How long is long enough to allow these rules to be bent to allow people to mourn?
Video of the Week: The World's Best Pickpocket
In last week's New Yorker, Adam Green has a story about Apollo Robbins, who is widely considered the world's best pickpocket.
In more than a decade as a full-time entertainer, Robbins has taken (and returned) a lot of stuff, including items from well-known figures in the worlds of entertainment (Jennifer Garner, actress: engagement ring); sports (Charles Barkley, former N.B.A. star: wad of cash); and business (Ace Greenberg, former chairman of Bear Stearns: Patek Philippe watch). He is probably best known for an encounter with Jimmy Carter’s Secret Service detail in 2001. While Carter was at dinner, Robbins struck up a conversation with several of his Secret Service men. Within a few minutes, he had emptied the agents’ pockets of pretty much everything but their guns. Robbins brandished a copy of Carter’s itinerary, and when an agent snatched it back he said, “You don’t have the authorization to see that!” When the agent felt for his badge, Robbins produced it and handed it back. Then he turned to the head of the detail and handed him his watch, his badge, and the keys to the Carter motorcade.
Lametti on the Concept of the Anticommons
David Lametti (McGill) has posted The Concept of the Anticommons: Useful, or Ubiquitous and Unnecessary? (Book Chapter) on SSRN. Here's the abstract:
The work of Michael Heller on the so-called anticommons, or using the more recent moniker, “gridlock”, and the abundance of scholarship that it has generated, is one of the more significant recent concepts that has emerged from American property scholarship. Yet, in my view, Heller’s anticommons rests on a flawed view of private property ownership; indeed, some of his examples of gridlock have little to do with private property as such. Yet, private property is not nearly as absolute as the tragedy of the anti-commons claims or indeed requires. This flawed view, which posits private property as being more or less absolute, then benefits from the counter-balance or corrective provided by the recognition of an anticommons. Once property is seen in its proper light, the superstructure of the anticommons becomes unnecessary at best, obfuscating at worst. Starting with a more balanced view of private property, the central insight of the anticommons literature is already contained in the concept of private property. And the practice of private property has long tried to address the very different and complex challenges of fragmented and adjacent ownership that the anticommons perhaps oversimplifies. Thus at the very least, simplicity of thought demands that we not create unnecessary conceptual structures.
January 7, 2013
This Wednesday's Professor's Corner Call -- Fracking!
As you may recall, Professors’ Corner is a monthly FREE teleconference sponsored by the ABA Real Property, Trust and Estate Law Section's Legal Education and Uniform Laws Group. Each month’s call features a panel of three law professors who discuss recent real property cases of interest to real estate practitioners and scholars.
The January 2013 program, moderated by Professor Wilson Freyermuth of the University of Missouri School of Law, is a particularly timely program entitled "Shale Gas and Tight Oil: A “Fracking” Primer for Real Property Lawyers.” This panel will feature Professors Keith Hall, Blake Watson, and Hannah Wiseman, three scholars whose recent work has focused on various legal issues associated with hydraulic fracturing.
Wednesday, January 9, 2013
12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a.m. Pacific)
Call-in number: 866-646-6488
Keith Hall is an Assistant Professor and the Director of the Mineral Law Institute at the LSU Law Center. Professor Hall will provide a summary of what hydraulic fracturing is, as well as a brief overview of the various legal issues raised by hydraulic fracturing (including water sourcing, groundwater contamination, disclosure of composition of fracturing fluids, disposal of flowback, and state vs. local preemption issues).
Blake Watson is a Professor at the University of Dayton School of Law. Professor Watson will address recent developments in groundwater contamination litigation, specifically focusing on: (1) the possibility that courts will find hydraulic fracturing to be an abnormally dangerous activity subject to strict liability; (2) the strategy of defendants to cut off discovery and terminate litigation prior to summary judgment through the use of "Lone Pine" case management orders; and (3) the ability (or inability) of defendants to keep terms of settlements from the public (at issue in the recent Hallowich decision from Pennsylvania).
Hannah Wiseman is an Assistant Professor at the Florida State University College of Law. Professor Wiseman will address recent regulatory changes, including rules addressing stormwater/erosion permitting for well site construction; setbacks of well sites from homes, surface water, and other resources; spill prevention, containment, and clean-up; and the sparse state laws on wildlife issues associated with well development. She also will briefly explore changes in states’ funding of agencies, staffing and training practices, and enforcement of laws at well sites.
Readers of PropertyProf Blog are invited to attend.
The N.Y. Times looks at how moving to a new property can have positive psychological effects:
“Our home represents comfort and another way of identifying ourselves,” she said. “Your identity is changed by loss, so you think of changing your house, too.” People may see a move “as a way of starting over,” she added, “even a way of undoing the bad thing that has happened. It’s a defense mechanism.”
But is it a healthy defense mechanism? “There’s no right answer,” Dr. Saltz said. “But I certainly wouldn’t board up the house the week your spouse leaves. “We don’t process things instantly,” she said. “Being guided by a desire to run might lead you to a financially or emotionally unwise decision for yourself.” Unless, she said, “it means moving somewhere you had always wanted to be anyway.”
Recent SSRN Downloads
2. [106 downloads] Trying Times: Important Lessons to Be Learned from Recent
Federal Tax Cases
Nancy A. McLaughlin (Utah) & Stephen J. Small
3. [100 downloads] The Cathedral Engulfed: Sea-Level Rise, Property Rights, and
J. Peter Byrne (Georgetown)
10. [65 downloads] The American Takings Revolution and Public Trust
Preservation: A Tale of Two Blackstones
Blake Hudson (LSU)