Friday, July 5, 2013
Emily Badger has a strange story about property regulations from Detroit:
The Detroit Free Press reports this week on an odd local-ordinance dispute in the suburb of Dearborn, where several local families have taken to using their garages for something other than parking. They've moved in TVs and lawn chairs, laid down tile flooring and – this was apparently the last straw – installed sliding-glass doors where the mechanized garage entrance ought to be. These families have created a living space – something in between outdoor patio and indoor den – out of what most people treat as a home for their cars. [...]
But neighbors and the city aren't on board. According to the Free Press, they're concerned that "as people get a little too comfortable hanging out in the garage, more cars are clogging side streets." Officials also argue that garages aren't up to code as living spaces. Now the city is weighing whether to change a law that states that homeowners must be able to park their cars in their garages (these families created little ramps that allow them to drive over the sliding-glass door frames). So do you ban patio doors? Parquet floors?
A continuing controversy in copyright law is the exemption of copyright
from First Amendment scrutiny. The Supreme Court has justified the
exemption, based on the history and the intentions of the Framers, but
this explanation is unpersuasive on the historical facts.
There is an alternative explanation: copyright is property, and private property is generally exempt from scrutiny under standard First Amendment doctrine. Many scholars have noted this theory, but they have been uniformly dismissive towards it. For example, Mark Lemley and Eugene Volokh view the property theory as so clearly wrong as to be a “non sequitur,” because it supposedly implies that Congress can declare anything to be property and, thereby, circumvent the First Amendment.
This Article aims to rehabilitate the property theory. Contrary to its critics, the property theory does not say that anything labeled “property” is exempt, but rather contains two internal limits. First, the government-created rules of the property system must be neutral towards speech, though the private enforcement of those rules can be viewpoint-motivated. Second, even within the context of private enforcement, there must still be some protection against excessive ownership power. Understanding the property theory, including its internal limits, then provides a powerful legal justification for the Court’s treatment of copyright law — one that is far better than what the Court has itself articulated.
Thursday, July 4, 2013
In March we reported that owners of Madison Square Garden had petitioned New York City to renew "in perpetuity" the permit that allows them to operate an sports facility atop Penn Station, the country’s busiest transit hub.
Well, it appears that Madison Square Garden has lost the fight:
Like so many epic matches at Madison Square Garden, the fight over the future of the arena’s special permit went many rounds. In the end though, City Council Speaker Christine Quinn delivered the crucial blow, leaving the presumed underdogs, the preservationists and transit advocates, the victor as two City Council committees unanimously approved a 10-year permit for the Garden Wednesday.
The Garden, controlled by the Dolan family, had hoped to have its permit extended a bit longer. In fact, they insisted that it should be granted in perpetuity, arguing such was the case for other athletic facilities in the city. But a number of civic groups fought against the effort, arguing for a term-limited permit that might help resuscitate negotiations over relocating the arena so that Penn Station, trapped underneath the Garden for half a century, might be rebuilt and expanded.
If Madison Square Garden ever gets kicked off the site, a few architects have already submitted visions for what the space could become.
Jessica Owley (Buffalo) has posted Property Constructs and Nature's Challenge to Perpetuity (Book Chapter) on SSRN. Here's the abstract:
Conservation biology and ecology (as well as our eyes and ears) tell us that nature is in a constant state of flux. Yet, models of land conservation focus on preserving the present state of land in perpetuity. Legal concepts that center on the status quo turn a blind eye to the fact that nature is ever-changing. This conflict is illustrated by examining both traditional property servitudes and conservation easements. These restrictions on private land often explicitly state that they are preserving today’s landscape in perpetuity. This chapter explores the inherent conflict between the changing natural world and rigid legal structures, detailing the struggles of applying principles like resiliency thinking and adaptive management to property tools for conservation. It also explores why this disconnect occurs including some discussion of environmental psychology.
Wednesday, July 3, 2013
Cord Jefferson looks at the aftermath of Sao Paulo's 2006 decision to ban every billboard, poster, and bus advertisment in the city:
Five years later, have all the businesses in São Paulo gone under? Hardly. In fact, most citizens and some advertising entities report being quite pleased with the now billboard-less city. A survey this year found that a 70 percent of residents say the Clean City Law has been "beneficial." "São Paulo’s a very vertical city," Vinicius Galvao, a journalist, said in an interview with NPR. "
Where businesses are concerned, it turns out some advertisers are actually thankful for the ban, as it's forced them to reevaluate and improve. [...] Anna Freitag, the marketing manager for Hewlett-Packard Brazil, said her company had never considered how inefficient billboards and the like were until they were illegal. "A billboard is media on the road," she told the FT. "In rational purchases it means less effectiveness... as people are involved in so many things that it makes it difficult to execute the call to action."
Adam Hirsch (San Diego) has posted Incomplete Wills (Michigan Law Review) on SSRN. Here's the abstract:
This Article explores the problems that arise when a will fails to dispose of an individual's entire estate, so that she dies partially testate and partially intestate. The questions then raised include (1) whether provisions contained in the will purporting to redefine the individual's intestate heirs should supersede the statutory designations of those heirs, (2) whether inter vivos gifts to heirs should qualify as advancements on the inheritances of those heirs under conditions of partial intestacy, and, most broadly, (3) whether courts should fill in the incomplete portions of an individual's estate plan by extrapolating from the distributive preferences set out in the fragmentary will or by independent reference to the statutory rules of intestacy. The intent of testators is bound to vary on each of these points, this article argues. In order to account for this predictable variation, lawmakers should grant courts limited discretion to resolve each of these issues on a case-by-case basis, taking into consideration both intrinsic and extrinsic evidence. Such an approach would differentiate the rules of partial intestacy from complete intestacy, which operates according to mechanical rules. This Article suggests policy reasons for drawing that distinction. The Article supports its analysis with empirical evidence drawn from data sets of published cases, a resource not previously exploited in connection with quantitative studies of inheritance law.
Tuesday, July 2, 2013
A number of blogs have reported that health care activist AJ Marin was recently arrested for writing the above statement on the public sidewalk in front of the home of Pennsylvania Governor Tom Corbett. Martin was protesting the possible failure of PA to expand Medicare.
In response, Eugene Volokh investigates whether a local governments can bar people from writing messages in chalk on public sidewalks, on the theory that this is a form of graffiti (albeit fairly easily washable).
Also, just for fun, here are 20 amazing chalk-drawings.
2. [96 downloads] Typization and Consequences of Real Property Investment
Roman Bevzenko (National Research University)
4. [88 downloads] The Gentrification Trigger: Autonomy, Mobility, and
Affirmatively Furthering Fair Housing
Rachel D. Godsil (Seton Hall)
5. [86 downloads] Valuing Fractional Interests in Art for Estate Tax Purposes
Wendy C. Gerzog (Baltimore)
6. [80 downloads] Barriers to Foreclosure Prevention During the Financial
Patricia A. McCoy (UConn)
7. [75 downloads] Charitable Contributions of Property: A Broken System
Roger Colinvaux (Columbus)
8. [67 downloads] Avoiding Insult to Injury: Extending and Expanding
Cancellation of Indebtedness Income Tax Exemptions for Homeowners
Dustin A. Zacks (King, Nieves & Zacks PLLC)
9. [65 downloads] Testing the Results of Municipal Mixed-Use Zoning
Ordinances: A Novel Methodological Approach
Sue Thomas, et. al
10. [59 downloads] Do the Right Thing: Indirect Remedies in Private Law
Daphna Lewinsohn-Zamir (Hebrew University)
Monday, July 1, 2013
Richard Williams thinks so:
It’s odd how little architects have had to say on the subject of sex. If they’re routinely designing the buildings in which sex happens, then you might expect them to spend more time thinking about it. Buildings frame and house our sexual lives. They tell us where and when we can, and cannot, have sex, and with whom. To escape buildings for sex — to use a park, a beach, or the back seat of a car — is a transgression of one kind or another. Most of us keep sex indoors and out of sight. …
According to [sex therapist Esther] Perel, sex wastes time, needs space, and (most intriguingly) is inhibited by too much intimacy. All these things have implications for architecture, which in the West has been coloured by the language of efficiency for at least a century.
For me, the ideal would be some form of co-housing, the best-known example being Sættedammen in Denmark, established in 1972 (with the founding creed: ‘Children should have 100 parents’). It occupies the right space between the wilder forms of intentional community, and market-dominated individualism. It doesn’t explicitly challenge sexual norms. However, by providing shared facilities (childcare, gyms, swimming pools, saunas, rooms for parties), it provides time and space to play, and addresses the deficits that Esther Perel identified as inhibiting our sexual lives (sex loves to waste time, remember).
But I’d add some sort of therapeutic role, too. If we were to live more communally, we would need help to resolve inevitable interpersonal conflicts. The odd thing is that we already strongly value co-housing, albeit in an occasional and time-limited form. University students live like this, and we do the same thing on holiday; both forms seem to provide a better emotional environment in which to explore and develop primary relationships — including sexual ones. If we can accept such communal living for some of our lives, why not the rest of the time? Then we might have an architecture that actually supports, rather than impedes, our sexual lives.
(HT: Daily Dish)
With Koontz in mind, Jessica Owley (Buffalo) has a posted a brief primer on exactions, What Exactly are Exactions?, on SSRN. Here's the abstract:
This brief piece for the publication of the Environmental Law Section of the New York Bar Association discusses the potential implications of Koontz v. St. John's River Water Management District (pending before the U.S. Supreme Court) and its implications for New York law. While all exactions must undergo a Nollan/Dolan level of scrutiny, New York courts have limited the reach of this analysis by narrowly defining what constitutes an exaction. In Smith v. Town of Mendon, the New York Court of Appeals defined exactions strangely. First, it held that conservation restrictions did not qualify as exactions unless they required public access. Second, bound by precedent, the court recognized that in lieu fees are exactions requiring Nollan/Dolan analysis. These holdings seem out of step with Supreme Court jurisprudence and likely to require revisitation after the Court issues its opinion in Koontz. At oral argument, the justices appeared to interpret exactions much more broadly than the New York courts.