Friday, August 9, 2013
SEALS '13 is almost over and its been great -- the series for new and newish faculty members has been particularly interesting, as well as the panel on interdisciplinary courses. But not a ton of property or real estate offerings. Anyone interested in putting together a panel or discussion group (or more than one) on a property/real estate/land use theme? We could do something general or specific. Next year SEALS will be back at Amelia Island Plantation, August 1-7th.
If you have ideas for a panel or discussion group, please leave a comment or e-mail me directly.
It never ceases to surprise how many international borders remain contested:
Tensions between the two nations have ratcheted up since last November when the International Court of Justice in The Hague ruled in the long-simmering dispute over Caribbean islands and territory that have been under Colombian control since its 1819 independence.
While the court reaffirmed Colombia’s sovereignty over San Andres and other Caribbean islands, it said Nicaragua had the right to thousands of square miles of territory east of the 82nd Meridian, which has served historically as the two countries’ marine border.
The New Yorker Magazine has an terrific article about police abuse of civil forfeiture laws, which highlights the outrageous and unconstitutional police raid at the Contemporary Art Institute of Detroit:
In the midst of festivities one evening in late May, 2008, forty-odd officers in black commando gear stormed the gallery and its rear patio, ordering the guests to the ground. Some in attendance thought that they were the victims of an armed robbery. One young woman who had fallen only to her knees told me that a masked figure screamed at her, “Bitch, you think you’re too pretty to get in the mud?” A boot from behind kicked her to the ground. The officers, including members of the Detroit Police Department’s vice squad and mobile tactical unit, placed the guests under arrest. According to police records, the gallery lacked proper city permits for after-hours dancing and drinking, and an old ordinance aimed at “blind pigs” (speakeasies) and other places of “illegal occupation” made it a crime to patronize such a place, knowingly or not.
After lining the guests on their knees before a “prisoner processing table” and searching them, the officers asked for everyone’s car keys. Then the raid team seized every vehicle it could find, even venturing to the driveway of a young man’s friend nearly a mile away to retrieve his car. Forty-four cars were taken to government-contracted lots.
Most of those detained had to pay more than a thousand dollars for the return of their cars; if payment wasn’t made promptly, the car would become city property.
Ilya Somin at Volokh piles on:
The idea that government can seize your property without ever having to prove that you committed a crime is deeply unjust, and creates dangerous perverse incentives for police, especially in cases where they or the local governments they work for get to keep the assets seized. The Texas jurisdiction discussed in Stillman’s article is particularly egregious, since it focuses its abusive behavior on out-of-town drivers who have little or no political leverage in the area, and face unusually high costs if they choose to contest the seizures.
A variety of reforms could help diminish asset forfeiture abuse. For example, police could be banned from keeping the proceeds, and state and local governments should give owners the right to contest seizures quickly and cheaply. In some states, current arrangements allow the authorities to hold forfeited property for many months without giving the owner any opportunity to challenge the seizure, thereby violating the Due Process Clause of the Fourteenth Amendment. Ultimately, however, the best solution is to abolish civil asset forfeiture completely.
Thursday, August 8, 2013
Feeling drained in your cubicle? Property to the rescue:
Newly published research suggests working in an environment that offers little privacy can lead to emotional exhaustion and burnout. [...]
But this link disappeared when . . . employees . . . personalized their cubicles. Employees who had turned their workspaces into areas that reflect their interests and personalities reported the same (relatively low) level of emotional exhaustion, regardless of whether they worked in an office or a cubicle.
The researchers credit “the calming effect” of having your own stuff around you. This “enables employees to cope more effectively with the interferences and distractions at work, and maintain the necessary energy needed to pursue their work successfully,” they write.
For those who haven't followed the story, here's a brief recap of the controversy over the HeLa Cell line: Henrietta Lacks was a poor Southern tobacco farmer born in 1920. Ms. Lacks died on October 1, 1951 and was buried in an unmarked grave. However, cells taken from her body (without her permission) during a medical procedure at Johns Hopkins became one of the most important tools in medicial research -- the HeLa cell line. Lacks' cells were vital for developing the polio vaccine and helped uncovered secrets of cancer, viruses, and the effects of the atom bomb. Scientists eventually commercialized Lacks' unique cells. For many years they have been bought and sold the world over, and they have generated millions in profits. Nevertheless, neither Lacks nor her family ever received a dime. In fact, Lacks' family didn't even know about the existence of the HeLa cell line until last year.
NBC News has a new follow up story on the case:
On Tuesday, the National Institute of Health announced it was, at long last, making good with Lacks' family. Under a new agreement, Lack's genome data will be accessible only to those who apply for and are granted permission. And two representatives of the Lacks family will serve on the NIH group responsible for reviewing biomedical researchers’ applications for controlled access to HeLa cells. Additionally, any researcher who uses that data will be asked to include an acknowledgement to the Lacks family in their publications.
The new understanding between the NIH and the Lacks family does not include any financial compensation for the family. The Lacks family hasn’t, and won’t, see a dime of the profits that came from the findings generated by HeLa cells. But this is a moral and ethical victory for a family long excluded from any acknowledgment and involvement in genetic research their matriarch made possible.
Wednesday, August 7, 2013
Interesting conflict in Dallas between the Nasher Sculpture Center and a brand new, $200 million, 42-story residential condo tower which reflects some serious glare on the center. Museum officials report that the garden has had to be resodded twice because of the heat of the glare, trees have been burned, and the galleries have been compromised. Evil greedy developer versus a museum? Except that the Museum Tower was built and is owned by the Dallas Police and Fire pension fund.
The conflict between the tower and the museum would be a fun ripped-from-the-headlines hypo to allow property students to discuss the balance between private property rights, nuisance, etc.
It's time to invite you to this month's Professors' Corner call, sponsored by the ABA RPTE Section. From this month's host, Wilson Freyermuth:
Professors' Corner: Wednesday, August 14, 2013
12:30pm Eastern/11:30am Central/9:30am Pacific
Call-in number: 866-646-6488
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.
Our program on Wednesday, August 14 is “Real Estate Issues in the Bankruptcy Courts.” Our panel will discuss the latest on several important real estate issues in bankruptcy, including the “absolute priority” rule in individual Chapter 11 cases; the “strip-off” of underwater liens in Chapters 11 and 13; and the artificial impairment and artificial classification in Chapter 11 cases.
Our panelists for the program include three leading bankruptcy scholars:
Professor Ralph Brubaker, University of Illinois College of Law. Prof. Brubaker has taught at Illinois since 2004 after many years at Emory University Law School. He has served as Interim Dean and Associate Dean for Academic Affairs at Illinois and most recently as the Guy Raymond Jones Faculty Scholar. He will discuss a recent Fifth Circuit decision, In re Village at Camp Bowie I, L.P., and the extent to which a Chapter 11 debtor can “artificially” impair claims to facilitate cramdown of a reorganization plan and the status of the “artificial classification” doctrine. Here are links to the cases that Prof. Brubaker will address:
In re Village at Camp Bowie, 710 F.3d 239 (5th Cir. 2013)
In re Greystone III Joint Venture, 995 F.2d 1274 (5th Cir. 1992)
In re Little Creek Development Co., 779 F.2d 1068 (5th Cir. 1986)
In re Sun Country Development, Inc., 764 F.2d 406 (5th Cir. 1985)
Professor Bruce Markell, Florida State University. Prof. Markell returns to teaching at FSU in 2013 as the Jeffrey A. Stoops Professor, after many years of service as a United States Bankruptcy Judge for the District of Nevada and as a member of the Bankruptcy Appellate Panel for the Ninth Circuit. Prior to his service as bankrutpcy judge, Prof. Markell had a distinguished career as a law teacher at both Indiana University and UNLV. He will address recent case developments involving the “absolute priority rule,” including whether the rule applies in individual Chapter 11 cases and Judge Easterbrook’s recent “new value” decision in In re Castleton Plaza. Here are links to the cases that Prof. Markell will address:
In re Lively, 717 F.3d 406 (5th Cir. 2013)
In re Castleton Plaza, LP, 707 F.3d 821 (7th Cir. 2013)
In re Shat, 424 B.R. 854 (Bankr. D. Nev. 2010)
Professor Robert Lawless, University of Illinois. Prof. Lawless has taught at Illinois since 2006, and previously taught at both Missouri and UNLV. He currently serves as the Associate Dean for Research and the Co-Director of the Illinois Program on Law, Behavior, and Social Science. Prof. Lawless will address recent case developments regarding the ability of Chapter 11 and 13 debtors to “strip-off” underwater mortgage liens.
In a speech in Phoenix, President Obama outlined his vision for beleaguered mortgage giants Freddie Mac and Fannie Mae:
Fannie Mae and Freddie Mac do not make loans directly, but buy mortgages from lenders, package them as bonds, guarantee them against default and sell them to investors. The enterprises currently own or guarantee half of all US mortgages and back nearly 90% of new ones. [...]
Fannie and Freddie, as the two federally-created entities became known, were blamed for encouraging an era of reckless lending and were bailed out by the US government at a cost of $187bn.
Now the White House argues it is time to work with Congress to replace the system with more private guarantees. "For too long, these companies were allowed to make big profits buying mortgages, knowing that if their bets went bad, taxpayers would be left holding the bag," said Obama. [...]
Obama is also seeking guarantees that a private sector-led mortgage finance system would still ensure wide homeowner access to popular 30-year mortgages at fixed rates.
Stephen Miller (Idaho) has posted Boundaries of Nature and the American City (Book Chapter) on SSRN. Here's the abstract:
chapter presents a framework for understanding how legal approaches have
guided and defined the relationship between nature and the city since
the wilderness movement. The purpose of presenting a selective and
concise, but by no means exhaustive, version of these changes is
twofold: first, this chapter satisfies a need to identify the dynamics
that govern and organize the disparate policies through which we
navigate the boundaries between nature and the city; second, because the
city and its legal tools will be tasked with driving human adaptation
to climate change, this chapter will serve as a guide for further
exploration into the capacity and potential of these legal tools in a
The five approaches to city boundaries explored here illustrate the variety of tensions constructed in the law between humans, nature, and place. The first two approaches, both of which fit under the larger rubric of growth management or smart growth policies, primarily concern the city’s sprawl into nature. These approaches are driven by a felt need to maintain the boundary between human, civilized places and nature. The first approach uses legal tools that would bind a city geographically through preservation of natural elements at the city’s border, such as open space acquisition, land trusts and conservation easements, agricultural easements and working landscapes, transfer of development rights, greenbelts and urban growth boundaries, and large-lot zoning. A second approach to sprawl has been to restrain the speed of the city’s geographic growth through land use tools such as tempo and sequencing controls, and linking land use and transportation planning.
Beyond addressing sprawl, a third approach to boundaries of nature and the city has sought to revitalize neglected natural elements located geographically within the city — rivers, native species, and agriculture — enhance them, and integrate them into city life. A fourth approach has sought to change how cities’ built environment relates to nature by reducing and mitigating the built environment’s effects on nature. This has included use of legal tools such as mandatory environmental review of new projects, new legal regimes governing how the built environment’s use of resources affected nature globally through climate change, as well as regulations of even small parts of the built environment, such as street lights, that can have an outsized effects on wildlife. A fifth approach has sought to change how a city’s community relates to nature, including using law to address environmental justice and empowering sub-local communities to seek environmental benefits.
After reviewing these five approaches to boundaries of nature and the city, the chapter concludes by evaluating how the relationship between nature and city is being redefined through rapid population and ecosystem migrations. As both nature and the city morph and change, new, forward-looking legal tools will be needed to renegotiate nature and the city’s boundaries at both the hyper-global and hyper-local levels.
Tuesday, August 6, 2013
Michael Blumm (Lewis & Clark) has posted Anti-Monopoly and the Radical Lockean Origins of Western Water Law on SSRN. Here's the abstract:
review of David Schorr's book, The Colorado Doctrine: Water Rights,
Corporations, and Distributive Justice on the American Frontier,
maintains that the book is a therapeutic corrective to the standard
history of the origins of western water law as celebration of economic
efficiency and wealth maximization. Schorr's account convincingly
contends that the roots of prior appropriation water law -- the
"Colorado Doctrine" -- lie in distributional justice concerns, not in
the supposed efficiency advantages of private property over common
property. The goals of the founders of the Colorado doctrine, according
to Schorr, were to advance Radical Lockean principles such as
widespread distibution of water to current settlers and avoiding
monopolization of the resource by large landowners and corporate
speculators. The book explains how western water law doctrines like the
abolition of riparian rights, beneficial use as the basis and measure of
water rights, the sufficiency principle, the no-injury rule limiting
the transferability of rights, and public ownership of water all served
these Radical Lockean goals. Schorr generally downplays the significance
of temporal priority, thought by many to be the hallmark of western
water law, and he explains the early Colorado courts surprising and
consistent favoring of small-scale farmers over large-scale corporations
like ditch companies.
Schorr also attempts to draw lessons from his careful and detailed history of the rise of prior appropriation law for contemporary concerns like allocating the burdens of climate-change pollution control. Although he overlooks a few matters -- like the motive underlying the rejection of riparian rights as an anti-federal government doctrine and the failure of the founders of the Colorado doctrine to grant limited terms instead of perpetual rights in water -- and his assumption that public property will inevitably be distributed to the wealthy and the well-organized might be questioned -- this book is law and history at its finest and should be read by all serious natural resources and property law teachers and scholars.
Monday, August 5, 2013
The Gateway to the West is suffering through a flurry of NIMBY actions:
They aren’t landfills. Or nuclear power plants. Or halfway houses for sex offenders.
But people are fighting — and fighting hard — to stop two new apartment complexes for senior citizens. One of them has been proposed in Town and Country. The other is already under construction in Oakville. Some residents are unhappy. They say they are concerned about increased traffic, lowered property values and the outsize scale of the new structures. “Why here?” they ask.
In the Oakville area, the objections were enough that the county planning and zoning commission has been asked to reconsider its year-old approval. The commission plans to take up the issue on Monday.
Marie Boyd (South Carolina) has posted Zoning for Apartments: A Study of the Role of Law in the Control of Apartment Houses in New Haven, Connecticut 1912-1932 (Pace L. Rev) on SSRN. Here's the abstract:
This article seeks to contribute to the legal and policy debates over zoning by providing a more detailed examination of the impact of apartments on both pre-zoning land use patterns and the zoning process during the formative initial stages of zoning in the United States than has been provided in the literature to date. Specifically, this Article analyzes the impact of apartments on both pre-zoning land use patterns and the zoning process in New Haven, Connecticut. It focuses on the period beginning with the selection of New Haven’s first Zoning Commission in 1922, and concluding with the passage of New Haven’s first zoning ordinance in 1926. Through this detailed historical account of the realities of zoning, this Article demonstrates how — due to delays in the enactment of zoning — New Haven’s first zoning ordinance, rather than shaping the future growth of the regulated area, was instead shaped by existing land use patterns and political considerations.