Friday, June 14, 2013
This morning Justice Sotomayor delivered the opinion for a unanimous Court in Tarrant Regional Water District v. Herrmann. The petitioner in this case, a Texas state agency responsible for providing water to north-central Texas, sought a water resource permit from the Oklahoma Water Resource Board (the respondents) to take water from a tributary of the Red River at a point in Oklahoma’s portion of the basin. Knowing that the permit request would likely be denied, Tarrant filed a suit seeking to enjoin the OWRB’s enforcement of state water laws under which water exports are barred, arguing that the statute is pre-empted by the federal Red River Compact or invalid under the Commerce Clause. The Court held that the Red River Compact, which allocates water rights within the Red River basin among the states of Oklahoma, Texas, Arkansas, and Louisiana, does not pre-empt the Oklahoma water statutes. The case is significant for the pace of economic development in the Dallas-Fort Worth region, and for the right of Oklahoma to control the use of water in rivers that traverse the state.
Sarah Hamill (Alberta) has posted Private Rights to Common Property: The Evolution of Common Property in Canada (McGill) on SSRN. Here's the abstract:
This article uses the recent Occupy litigation of Batty v. City of Toronto to argue that Canadian courts no longer have a robust understanding of common property and its attendant rights. The lack of judicial understanding of common property is hardly surprising given property theory’s focus on private proper-ty, particularly individual private property. This article argues that rather than use the traditional analogy of governments holding common property in trust for the public, Batty relies on an analogy of common property which treats the government as an owner. The emergence of the latter understanding of common property can be traced to Supreme Court jurisprudence from the early 1990s.Although the government-as-owner analogy of common property was introduced in a concurring judgment, more recent Supreme Court decisions have since reiterated the analogy. Such an understanding of common property is a clear attempt to force all property into a private property model and emphasize the rights of owners above all other rights in property. This article argues that the government-as-owner analogy is problematic given its emphasis on the government’s use of property rather than the public’s benefit from common property and calls for a return to the trust analogy of common property.
Thursday, June 13, 2013
Slate points us toward a giantly cool treehouse in Crossville, Tennessee:
According to Slate:
As Minister Horace Burgess tells the story, in 1993, the Minister was praying when God told him, “If you build a tree house, I’ll see that you never run out of material.” Inspired by this vision, the quiet Minister set out to build the largest treehouse in the world. Located just outside of Crossville, Tennessee, the 97-foot-tall tree house and church is supported by a still-living 80-foot-tall white oak tree with a 12-foot diameter base, and relies on six other oak trees for support.
For fourteen years, Minister Burgess has been adding to the tree house, spending $12,000 to build it. Over that time, the treehouse has grown to truly monumental proportions, and the Minister may have already achieved his goal of building the world's largest treehouse. Currently, his treehouse is 90 feet tall, with five stories containing 80 rooms, and is complete with a church and a bell tower. The bell tower at the top of the treehouse is equipped with oxygen acetylene bottles that, repurposed as bells, chime daily.
Roger Colinvaux (Columbus) has posted Charitable Contributions of Property: A Broken System Reimagined (Harvard J. on Legislation) on SSRN. Here's the abstract:
average, nearly $46 billion of property is given to charitable
organizations each year, about twenty-five percent of the total
charitable deduction. This makes the charitable contribution deduction
for property a tax expenditure within a tax expenditure, yet it is
rarely analyzed as such. It emerged as part of a noble effort to
encourage contributions to worthy organizations. But the deduction for
property has never worked well. The general rule allowing a deduction
based on the fair market value of the property may have some intuitive
appeal, but its implementation has yielded numerous exceptions and
immense complexity. The Article argues that the extensive historical
effort to allow a deduction for property contributions is a failure.
Given the substantial direct and indirect costs involved, the uncertain
benefit to the donee from property contributions,
and the absence of any affirmative policy to favor property contributions as such, it is time to reverse the general rule and not allow a charitable deduction for property contributions. Reversing the general rule would provide many benefits — increased revenue, improved tax administration, fewer abusive transactions, a simpler and more equitable tax code, and a preference for cash. Exceptions to the general rule of disallowance may be warranted, but any exception should be analyzed and fashioned according to whether it provides a measurable benefit to the donee. By following a measurable benefit to the donee standard, emphasis will be placed on providing a tax benefit that is administrable and that is based on the goal — donee benefit. Any resulting complexity should be viewed as a cost of the incentive, and weighed accordingly in deciding whether it should be provided.
Wednesday, June 12, 2013
Ilya Somin argues that the Supreme Courts recent unanimous opinion in Horne v. Department of Agriculture is a modest but potentially important victory for proponents of strong private property rights:
The Hornes are California raisin farmers seeking to challenge the constitutionality of a provision of the Agricultural Marketing Agreement Act of 1937 that requires them to turn over a portion of their raisin crop to the federal government in order to create an artificial scarcity in the market and prop up the price of raisins. They claim that this requirement violates the Takings Clause of the Fifth Amendment, which requires the government to pay “just compensation” whenever private property is “taken for public use” (the Hornes and other growers are not compensated for the expropriated raisins). The Supreme Court today did not rule on the issue of whether the Takings Clause was violated here. But it did unanimously overrule the Ninth Circuit’s decision that federal courts lacked jurisdiction to hear the Takings Clause case in the first place, because the Hornes were required to first pay the massive $483,000 fine imposed by the Agriculture Department, and then pursue various administrative remedies before getting their day in court. As Justice Thomas explains in his opinion for the Court, there were no meaningful alternative remedies available to the Hornes, because all such were closed off by federal statutes. In addition, “when a party raises a constitutional defense to an assessed fine, it would make little sense to require the party to pay the fine in one proceeding and then turn around and sue for recovery of that same money in another proceeding.” He might have added that imposing such a requirement would be a heavy burden on property owners who cannot afford to wait for years of administrative and judicial proceedings to get their money back. Damon Root and Lyle Denniston have more details on the case and its potential significance.
Somin notes, rightly, that the case may herald some broader changes in the Court's thinking as well:
But there is at least a small chance that the ruling will have a broader effect. One of the arguments rejected in today’s opinion was the claim that federal courts lacked jurisdiction to hear the case under the Court’s 1985 decision in Williamson County Regional Planning Commission v. Hamilton Bank, which holds that property owners claiming that they have been the victims of an uncompensated taking cannot bring a case in federal court until they have first been denied compensation in any potentially available state regulatory or judicial proceedings. Until that happens, the claims are not considered “ripe.” As I discuss in this article (pp. 23-26), Williamson County makes it impossible to bring many takings claims in federal court at all; once state courts have rejected the takings claim, federal courts are often precluded from reviewing it by the Court’s later decision in San Remo Hotel v. San Francisco (2005). No other category of constitutional rights claim is systematically denied access to federal court in the same way.
Horne certainly does not overrule Williamson County. But in footnote 6, the Court notes that Williamson County’s “ripeness” requirement is not a bar to federal court jurisdiction because “[a] “Case” or “Controversy” [as required for federal jurisdiction by Article III of the Constitution] exists once the government has taken private property without paying for it. Accordingly, whether an alternative remedy exists does not affect the jurisdiction of the federal court.” [emphasis added]. Normally, ripeness is a constraint on federal court jurisdiction. If the Williamson County regime can’t be justified on jurisdictional grounds, it is not clear what – if anything – justifies it at all. If it really is true that a Takings Clause case arises “once the government has taken private property without paying for it,” then it should not matter whether that violation of the Constitution might be remedied by a state proceeding instead of a federal one. There is still a federal constitutional case that can be brought in federal court.
Michael Blumm (Lewis & Clark) and Andrew Erickson (Lewis & Clark) have posted Wild Lands Policy in the Twenty-First Century: What a Long, Strange Trip It's Been on SSRN. Here's the abstract:
protection of federally owned wild lands, including but not limited to
designated wilderness areas, has long been a cardinal element of the
American character. For a variety of reasons, designating wild lands for
protection under the Wilderness Act has proved difficult, increasingly
so in recent years. Thus, attention has focused on undesignated wild
lands, that is, unroaded areas managed by the principal federal land
managers, the U.S. Forest Service and the Bureau of Land Management
(BLM). These areas can benefit from a kind of de facto protected status
if they are Forest Service areas that have been inventoried for
wilderness suitability and not released to multiple use or are
wilderness study areas managed by BLM. In the last two decades,
considerable controversy has surrounded roadless areas in both national
forests and BLM lands because protecting their wild land characteristics
may foreclose development, such as oil and gas leasing or timber
harvesting. Recently, the courts have settled longstanding litigation by
upholding roadless rule protection in the national forests. But BLM
wild land protection has remained more unsettled, as Congress recently
rejected a Wild Lands Policy adopted by the Obama Administration.
Despite this political setback, current policy is to survey and consider
wild lands in all BLM land plans and project approvals. This promised
consideration, however, leaves the fate of such lands in the hands of
local BLM officials and to the political vicissitudes of future
This article traces the evolution of federal wild lands policy from its beginnings in the 1920s to the enactment of the Wilderness Act in 1964 and the Federal Land Management and Policy Act in 1976 to the longstanding dispute over the Forest Service's roadless rule to the present controversy over BLM wild lands policy. We maintain that, pending congressional decisions on wilderness status, the best way to protect wild lands in the 21st century is through administrative rule, as in the case of national forest lands. Such protection, however, will require at least acquiescence from Congress, which has not been evident in the case of BLM lands in recent years.
Tuesday, June 11, 2013
Slate takes a look at the property claims over the Church of the Holy Sepulchre, venerated as the site of the crucifixion, burial, and resurrection of Jesus:
Under an 1852 mandate, the care of the Church of the Holy Sepulchre is shared by no less than six Christian denominations: the Greek Orthodox, Armenian Apostolic, Roman Catholic, Coptic, Ethiopian, and Syriac Orthodox churches. The Holy Sepulchre’s edifice is carefully divided into sections, with some commonly shared, while others belong strictly to a particular sect. A set of complicated rules governs the transit rights of the other groups through each section on any given day, and some of the sections of the church remain hotly disputed. Arguments and fistfights over territory and boundaries are not uncommon.
One such area is a small section of the roof which is disputed between the Copts and Ethiopians. At least one Coptic monk at any given time sits there on a chair placed on a particular spot to express this claim. On a stifling summer day in 2002, a monk moved his chair eight inches to find shade. This was interpreted as a hostile act and violation of boundaries, and 11 were hospitalized after the fight that ensued.
The Church of the Holy Sepulchre’s “immovable ladder” is a centuries-old symbol of this extreme territoriality. During the early 1800s, a man belonging to an unknown sect placed the ladder on a ledge against an exterior second-floor wall of the church. Due to the imposition of the status quo and the fear of inciting violence, no one has dared touch it since.
Excepting, of course, the time in 1997 when a mischievous tourist named Andy plucked it from the ledge and hid it behind an altar, where it remained undiscovered for weeks. The ladder has since been put back into its “appropriate” spot.
James Daily, guest-blogging at Volokh, takes a quick look at the law of commandeering:
We’re all familiar with the trope: a police officer finds himself or herself in need of a vehicle and so announces to the driver that they are commandeering it for police use. But what is the legal basis for this, particularly in New York? [...]
One basis for this might be N.Y. Penal Law § 195.10, which makes it a misdemeanor to refuse to aid a police officer when commanded to reasonably aid the officer in effecting an arrest or to prevent the commission of a crime. It has been argued that such statutes are actually unconstitutional, though they have a history in English law dating back to at least the thirteenth century. Jon C. Blue, High Noon Revisited: Commands of Assistance by Peace Officers in the Age of the Fourth Amendment, 101 Yale L.J. 1475 (1992). However, twenty-one years after Judge Blue’s essay was published, § 195.10 remains on the books and apparently undisturbed, if little used these days.
Brian Lee (Brooklyn) has posted Just Undercompensation: The Idiosyncratic Premium in Eminent Domain (Columbia) on SSRN. Here's the abstract:
When the government exercises its power of eminent domain to take private property, the Fifth Amendment to the U.S. Constitution requires that the property's owners receive "just compensation," which the Supreme Court has defined as equal to the property’s fair market value. Today, a well-established consensus exists on three basic propositions about this fair market value standard. First, the standard systematically undercompensates owners of taken property, because market prices do not reflect owners' personal valuations of particular pieces of property. Second, this undercompensation is unfair to those owners. And third, an appropriate way to rectify this problem is to add fixed-percentage bonuses to the amount of compensation paid. Several states have recently enacted laws requiring such bonuses, and prominent academics have endorsed their adoption. This Article, however, argues that all three of these widely accepted propositions are false. First, examining the economics of market-price formation reveals that fair market value includes compensation for more subjective value than previously recognized. Second, much of what market value leaves uncompensated should not, in fairness, receive compensation. Third, although justice may require paying compensation above fair market value in certain situations, this Article argues that the solution favored by academics and recent state legislation is itself unjust, undermining the civic and moral equality of rich and poor property owners by relatively overcompensating the rich while undercompensating the poor for losses which have equal value to rich and poor alike. The Article concludes by showing how an alternative approach can avoid these fairness problems.
Monday, June 10, 2013
From the ABA:
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 law professors who discuss recent cases or issues of interest to real estate practitioners and scholars. Members of the AALS Property Section are invited to participate in the call (as well as to join and become involved in the ABA Real Property, Trust and Estate Law Section).
Wednesday, June 12, 2013
12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a.m. Pacific). Call is ONE HOUR in length.
Call-in number: 866-646-6488
This month’s program involves some recent case developments on issues of interest to both Real Property and Trust and Estate practitioners. Our featured speakers will be Professors John Orth, Tanya Marsh, and Matt Festa.
John Orth is the William Rand Kenan Jr. Professor of Law at the University of North Carolina School of Law in Chapel Hill, NC, where he has taught since 1978. He teaches Property, Advanced Property, Trusts and Estates, and Legal History. He has published extensively on the subjects of property, legal history, and state constitutional law. Prof. Orth is a contributing author to the treatise Thompson on Real Property for the subject of concurrent estates, and has served as an Associate Editor and a contributor to the American National Biography series. Prof. Orth will be discussing Reicherter v. McCauley, a Kansas appellate decision addressing whether one joint tenant can effect a “secret severance” of a joint tenancy via a quitclaim deed to himself via a deed executed in anticipation of death. Time permitting, he will also discussBridgeview Bank Group v. Callaghan, a recent Florida appellate decision addressing whether a creditor may introduce evidence to rebut the presumption that a deed to a married couple was intended to create a tenancy by the entirety. Here’s a link to Reicherter: http://www.kscourts.org/cases-and-opinions/Opinions/CtApp/2012/20120713/106622.pdf
And to Callaghan: http://www.flprobatelitigation.com/uploads/file/4D11-631_op.pdf
Tanya Marsh is an Associate Professor of Law at the Wake Forest University School of Law in Winston-Salem, NC, where she began teaching in 2010, following ten years practicing real estate and corporate law in Indianapolis, Indiana. She teaches Property and Real Estate Transactions, and is a contributing editor to the Property Prof Blog. Prof. Marsh is the incoming Chair of the Real Property Division Legal Education Committee for the ABA Real Property, Trust & Estate Law Section. She will be discussing In re Estate of Whalen, a recent Iowa Supreme Court decision addressing whether Iowa’s Final Disposition Act allows a surviving spouse to disregard the deceased spouse’s written burial instructions. Here’s a link to the Whalen decision: http://www.iowacourts.gov/Supreme_Court/Recent_Opinions/20130222/12-1927.pdf
Matt Festa is a Professor of Law at the South Texas College of Law in Houston, TX, where he has taught since 2007. He teaches and researches in the areas of property law and land use, state & local government, energy & environmental law, trusts & estates, legal history, and national security law. He is the editor of the Land Use Prof blog. Matt will be discussing a Texas Supreme Court decision, Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline — Texas, LLC, in which the Court addressed whether a “common carrier” pipeline company with statutory authority to exercise eminent domain may do so for the construction of a private pipeline. Here’s a link to the decision: http://www.supreme.courts.state.tx.us/historical/2012/mar/090901rh.pdf
The highest paid public employee in your state is probably a football coach. Or maybe a basketball coach. But almost certainly a coach. Deadspin points out that this isn't a good thing:
There are at least three problems.
1. Coaches don't generate revenue on their own; you could make the exact same case for the student-athletes who actually play the game and score the points and fracture their legs.
2. It can be tough to attribute this revenue directly to the performance of the head coach. In 2011-2012, Mack Brown was paid $5 million to lead a mediocre 8-5 Texas team to the Holiday Bowl. The team still generated $103.8 million in revenue, the most in college football. You don't have to pay someone $5 million to make college football profitable in Texas.
3. This revenue rarely makes its way back to the general funds of these universities. Looking at data from 2011-2012, athletic departments at 99 major schools lost an average of $5 million once you take out revenue generated from "student fees" and "university subsidies." If you take out "contributions and donations"—some of which might have gone to the universities had they not been lavished on the athletic departments—this drops to an average loss of $17 million, with just one school (Army) in the black. All this football/basketball revenue is sucked up by coach and AD salaries, by administrative and facility costs, and by the athletic department's non-revenue generating sports; it's not like it's going to microscopes and Bunsen burners.
Carol Rose (Arizona) & Richard Brooks (Yale) have posted an abstract to their book, Saving the Neighborhood: Racially Restrictive Covenants, Law, and Social Norms, on SSRN. Here's the blurb:
book examines the interactions between social and legal norms through
the troubled story of racially restrictive covenants in American
residential communities. Racial covenants emerged in new high-end new
developments soon after 1900 and then spread to many middle- and some
working-class white neighborhoods. The book argues that these covenants
were particularly important in loose-knit urban white communities, which
otherwise lacked the social cohesion to maintain segregation. Racial
restrictions in those areas coordinated white resistance to integration
while signaling minority entrants to keep out. "Norm entrepreneurs" -
developers, brokers, and lenders - believed that racial covenants
protected housing values, and these actors helped to turn racial
restrictions into a general norm in white neighborhoods. In 1948 the
Supreme Court ruled in Shelley v. Kraemer that racial covenants were
unenforceable by courts, but their influence waned only gradually.
Legal norms shadowed racial restrictions on property from their origins onward. For several decades, proponents and courts steered around both Constitutional and property-law obstacles, but remaining legal weaknesses permitted “norm-busting” individuals and institutions to pick away at racial covenants, bolstering their case with an increasingly sympathetic anti-racist moral message. Even after Shelley and later antidiscrimination laws, however, racial covenants lived on in real estate documents, and for a considerable time they continued to send signals both to white residents and to outsiders. As a concluding coda, the book describes today’s legal efforts to renounce the now-discredited norms of racial covenants where they still lurk in property records.
Carol Zeiner (St. Thomas) has posted A Therapeutic Jurisprudence Analysis of the Use of Eminent Domain to Create a Leasehold (Utah Envtl Law Review) on SSRN. Here's the abstract:
jurisprudence provides an excellent tool to analyze and guide the
development of the law on the use of eminent domain to create
leaseholds. The objective of these takings is for the condemnor to
become a tenant under a “lease,” rather than the fee simple owner.
I am perhaps the only scholar who has written extensively on the topic of takings to create a leasehold. In a previous work, I provided an exhaustive analysis of the conclusion that government can use eminent domain to create a leasehold. That work went on to conclude that there are circumstances in which government should use eminent domain to create a leasehold, but that difficult problems can arise in such takings. They necessitate refinements in arriving at just compensation.
That work also concluded that there is at least one situation in which government should not be allowed to use eminent domain to create a leasehold. I labeled such takings Kelo-type takings, wherein the government uses its power of eminent domain with the objective of creating a leasehold that it will then transfer to a private party for private use. My argument that the use of such Kelo-type takings to create leaseholds should not be allowed was based primarily on public policy considerations. I concluded that the problems arising from takings that create private leaseholds are much worse than those encountered in situations such as Kelo, in which government acquires a fee simple from the condemnee and then makes a transfer to a private party, because the form disrupts the social contract between government and the people.
Any such conclusion demands reexamination on theoretical grounds, which is done in this Article. In order to re-examine the question, it formally extends the jurisprudential philosophy of therapeutic justice to eminent domain in general and specifically to takings to create leaseholds. The principles underlying therapeutic jurisprudence, as well as the illuminating insights derived from its application, confirm the prior conclusion.