March 2, 2013
Thank You to Meghan Morris
A big thanks to guest blogger Meghan Morris for her terrific posts during the month of February. Don't miss her take on:
March 1, 2013
Are Regulatory Takings a Form of Lochnerism?
Jonathan Adler says no:
As a historical matter, Justice Stevens was correct that the first decisions obligating states to compensate landowners for the taking private property for public use (Chicago, Burlington & Quincy Railroad v. Chicago) and holding that the regulation of land use could require compensation if it “goes too far” (Pennsylvania Coal v. Mahon) date from the so-called “Lochner era.” Curiously enough, the authors of these two opinions are, respectively, Justice John Marshall Harlan and Justice Oliver Wendell Holmes. Why is this curious? Because Justices Harlan and Holmes wrote the two dissenting opinions in Lochner. So while contemporary commentators and critics may see regulatory takings doctrine as Lochnerism reborn. Those who challenged Lochner at the time apparently saw things differently.
Tarlock on Flood Control and Land Use Rules
Dan Tarlock (Chicago-Kent) has posted United States Flood Control Policy: The Incomplete Transition from the Illusion of Total Protection to Risk Management (Duke Envt'l Law & Policy Forum) on SSRN. Here's the abstract:
Until the mid-twentieth century, the story of modern flood control was the transition from adaptation to the inevitable to an expectation that government would provide maximum flood prevention and generous post-disaster relief for floodplain dwellers. For the last sixty years or so, the story has been the growing recognition, especially as the understanding of climate change has increased, that the goal of maximum protection is unobtainable because flood damage is an inevitable risk that can only be managed, but never totally avoided. Thus, we are now making the transition to the idea that we must manage floodplains through a combination of structural defenses, upstream storage, and land-use controls.
February 28, 2013
The Hidden Stakes of Kiobel
This is my last post for the month - thanks again to Steve and the rest of the PropertyProf Blog team for having me as a guest!
Kiobel v. Royal Dutch Petroleum - the Alien Tort case argued not once, but twice, before the Supreme Court last year - has provided fodder for seemingly endless commentary. Discussion has been had, and tempers have flared, over the issues the case raises related to human rights, national security, and corporate liability, not to mention questions of exhaustion, extraterritorial enforcement of international law, and the intent of the First Congress in relation to the Alien Tort Statute (ATS), amongst other issues. On the eve of the second oral argument, Kali Borkoski at SCOTUSblog detailed what is at stake for whom in the case, discussing the implications for plaintiffs’ ability to seek redress in U.S. courts, litigation costs for businesses, sovereignty of foreign countries, and U.S. foreign policy. For all the buzz Kiobel has generated, however, there has not been much buzz about the implications the Court’s upcoming decision might hold for property disputes.
This lack of buzz is likely due to the fact that, on its face, Kiobel is not a case about property at all. Neither, for that matter, are most of the other cases that plaintiffs have filed against corporations under the ATS. These cases generally involve allegations of corporate involvement in extrajudicial executions, torture, and arbitrary arrest and detention, not property claims. Nevertheless, many of these cases do fundamentally involve issues related to property.
There are several reasons why property disputes are obscured in corporate ATS cases. The most obvious reason is that the Supreme Court’s 2004 opinion in Sosa v. Alvarez-Machain limited application of the ATS to claims to violations of international law norms that have no less “definite content and acceptance among civilized nations than the historical paradigms familiar when [the ATS] was enacted.” The “historical paradigms” to which the Court referred are offenses against ambassadors, violations of safe conducts, and piracy.
In several subsequent cases, courts have interpreted the standard laid out in Sosa to exclude property claims. Kiobel itself is an example of this. When the Kiobel plaintiffs first filed their complaint in 2002, it included allegations of destruction of private property, in addition to torture, extrajudicial execution, and arbitrary arrest and detention. Royal Dutch Petroleum filed a motion to dismiss for failure to state a claim in 2003. When the district court considered the motion in the wake of Sosa, it found that property destruction did not violate the law of nations unless executed in the context of genocide or war crimes. This ruling was consistent with a general trend in ATS cases decided prior to Sosa in which courts had dismissed claims of destruction of property, trespass, and conversion on similar theories (see, for example, Bigio v. Coca-Cola Co., in which claims against Coca-Cola for trespass and conversion were dismissed due to failure to allege conduct supporting private liability under international law). I have always found this trend interesting in light of the fact that the very first case to refer to the ATS - Bolchos v. Darrell, in 1795 - involved a successful claim regarding property in slaves. Bolchos was ultimately decided based on a treaty, but included reference by the court to law of nations norms regarding the capture of “neutral property.”
In many other ATS cases, plaintiffs don’t plead property-related claims, even when the facts of the case are saturated with property disputes. Given the history of dismissal of claims related to property, this omission in many cases is likely strategic, and understandable. Some cases in this vein involve situations in which plaintiffs allege corporate involvement in the extrajudicial execution or torture of people who protested the corporate appropriation of, or damage to, property (see, for example, Bowoto v. Chevron, in which plaintiffs filed claims for the extrajudicial execution of individuals who were protesting displacement from and destruction of property as well as environmental damage from oil company operations). Others involve plaintiffs who bring claims regarding extrajudicial executions which may have occurred in the context of expropriation of land or destruction of property. The ATS cases against Chiquita Brands, for example, were filed in the wake of a 2007 guilty plea by the company to financing a specially designated global terrorist organization, the United Self-Defense Forces of Colombia (AUC). The plaintiffs in several of the cases claimed to have lost family members to executions carried out by the AUC. The AUC was widely known to have engaged in both extrajudicial executions and the systematic expropriation of land simultaneously in the area and time period covered by the claims made in the ATS cases. This strategy was revealed through, amongst other sources, AUC members’ own public confessions in Colombia’s ongoing transitional justice process. The majority of the complaints filed against Chiquita, however, do not raise property claims.
There are plenty of possible arguments about why property claims should or should not be actionable under the ATS. My point here is not to make an argument either way. At a moment when the Supreme Court appears set to rule on the question of the extraterritorial reach of the ATS more broadly, the question of extending or not extending its reach to property claims is, at best, simply not worth engaging.
Nevertheless, to fully appreciate the stakes of the Court’s upcoming decision, it is important to understand the ways in which property disputes are explicitly or implicitly central to Kiobel and other corporate ATS cases. In addition to the more obvious ripple effects the Kiobel decision will have on foreign policy, corporate liability, human rights, and national security, it will also have important ripple effects regarding property. These effects will not be the result of Kiobel either restricting or maintaining foreign plaintiffs’ access to U.S. federal courts as a forum for bringing property claims under the ATS, since such claims are usually dismissed or are not stated in the first place. They will result from the fact that even when corporate ATS cases appear not to be about property disputes, they often are. This means that a shift in the availability of U.S. federal courts for plaintiffs’ non-property claims will affect if and how related property issues emerge, are handled out of court, and are or are not litigated in particular fora. Although the precise nature of these effects is as uncertain as the speculation regarding the Court’s upcoming decision, there is little room for doubt that the stakes are high - even where they might not be immediately apparent.
Can There Be An Islamic Urbanism?
The Atlantic raises some questions:
Imran Aukhil describes himself as "a Muslim and a committed urbanist." Those things, he says, should be complementary rather than contradictory. And yet Aukhil, who tweets as @UrbanMuslim, says that when it comes to the way urban communities are being built in the 21st century, he is often dismayed by what he sees happening in Muslim cities around the world . . . .
[I]n recent years, Aukhil has been shocked to see what is happening to the architectural and urban forms of the Islamic tradition. Like many others, he has been especially concerned about the demolition and construction in the holy city of Mecca in Saudi Arabia, which has been ongoing for the last decade. The construction of the $15 billion, 1,971-foot clock tower known as the Abraj al-Bait has gotten international attention -- and criticism. But the utter transformation of the city, from an exemplar of traditional urban forms that date back centuries into a showplace of glitz and glossy skyscrapers, where pilgrims can pray in luxurious privacy, has received relatively scant scrutiny outside the Islamic world.
Jones on the Married Women's Property Acts
Bernie Jones (Suffolk) has posted Revisiting the Married Women's Property Acts: Recapturing Protection in the Face of Equality (American U. Journal of Gender, Social Policy & the Law) on SSRN. Here's the abstract:
This article discusses the shortcomings of 20th century judicial interpretations of the Married Women’s Property Acts and contributes as a result to the scholarly literature on the tenancy by the entirety. In addition, it has implications for teaching the doctrinal development of marital property interests and advocacy in property law litigation. Courts in the 20th century forgot the historical meaning and significance of the 19th century acts which aimed to protect the interests of married women and families from husbands’ debts. They seemed to uphold equality in property rights between spouses when protection was really at stake. By the 20th century, when jurisdictions like Massachusetts and New Jersey were interpreting their states’ Married Women’s Property Acts, recognition of the married woman’s interest in debt protection seemed to have been lost. Courts deliberately upheld practices that appeared directly to contravene the spirit and purpose of the original Acts, as these courts interpreted the acts to mean an equality which did not exist in fact. At stake were the rights of women who owned property in their own name as wives. Yet, the wives’ property was seized for their husbands’ debts. They were required to make their separate property over into tenancy by the entirety property; upon doing so, they were threatened by seizure of their property interest and foreclosure once creditors attached their husbands’ share of the property interest. In Hawaii, the shape of the litigation and the development of the doctrine took a different turn. The debtor husband was a widower. Yet, the court misread and misapplied the debt protection rules. The non debtor spouse was dead and the survivorship rules were irrelevant as a result. Pursuant to the traditional view of the tenancy by the entirety, he could have been held liable as the sole owner of the property. Nonetheless, Hawaii affirmed the ongoing significance of the tenancy by the entirety from the perspectives of doctrine and policy: protection of families and familial assets.
February 27, 2013
Map of the Day: Where We Seek Love
The above map is the result of a scholarly study of the "missed connections" section of Craigslist. It depicts the most frequently-cited location where a Missed Connection occured, by state. For those unfamiliar with Craigslist, Wikipedia defines a Missed Connection as "an occurrence where two or more people are unable to exchange contact information or the information that is exchanged is lost. These missed connections are generally associated with romance, but they may also be business-related or otherwise. Through the use of publications and websites some people seek to reconnect with their missed connection."
Andrew Sullivan dubs this the saddest map in America:
This is where you thought you saw your future spouse or date or hook-up, state by state. It is, in some ways, a sign of where we are now most likely to see people we don’t know in various parts of the country. It’s also a sign of male loneliness or romance: men seeking to find a possible love-mate outnumber women 86 – 14. [...]
Now look at the South – more people spy love at Wal-Mart than anywhere else, from Florida all the way to New Mexico. And that thread runs all the way through deep red America. Only Oklahoma cites the state fair as a mixer. The rest see each other under the merciless lighting of the giant super-store. This is how we fall in love or lust, where we flirt and look back: when we’re shopping. The big cities – like NYC and DC – showcase the random human interaction on the subway or metro.
Carrier on Limiting Copyright Through Property
Michael Carrier (Rutgers - Camden) has posted Limiting Copyright Through Property (book chapter) on SSRN. Here's the abstract:
In recent years, copyright has become more like property. Copyright has expanded to take on property-like powers that are broad and last essentially forever. In addition, industry leaders, courts, and scholars discuss copyright in terms of strong property rights.
In this chapter, I show how limits are central to property. I also explain why it is appropriate to limit a propertized copyright. And I offer some examples of copyright limits. Despite all discussion and assumptions to the contrary, propertization provides the tools not for absolute rights, but for limits on the rights provided by copyright.
February 26, 2013
Princeton University Giving Away Houses
Princeton University is giving away a number of houses that it owns. The catch: If you want one of the homes you need to haul it off the campus yourself:
The houses are on Alexander Street . . . and are available to the public for free in "as-is condition," Martin Mbugua, a university spokesperson, told ABCNews.com. The buildings have been used in the past as university offices or for other purposes, but they will soon face demolition to make way for future university construction. Anyone can contact Princeton for a free home, but the houses cannot remain on Alexander Street.
Tree House Architect Storms the West Coast
The LA Times reports:
Takashi Kobayashi is out of his tree. The self-taught Japanese designer, carpenter and architect of 120 jaw-dropping tree houses — some sleek modernist cubes, some gnarly fairy-tale cottages — recently unveiled his first Los Angeles work, a small-scale installation of found wood and live plants at In Aqua Veritas, the vintage goods outpost of the Silver Lake home décor store Feal Mor.
You can see a gallery of Kobayashi's creations here.
Sherry on What Happens to Your Facebook Account When You Die
Kristina Sherry (Pepperdine - Student) has posted What Happens to Our Facebook Accounts When We Die?: Probate Versus Policy and the Fate of Social-Media Assets Postmortem (Pepperdine Law Review). Here's the abstract:
More than 580,000 Facebook users in the U.S. will die this year, raising numerous legal questions as to the disposition of their Facebook pages and similar “digital assets” left in a state of legal limbo. While access to and ownership of decedents’ email accounts has been philosophized for nearly a decade, this Comment focuses on the additional legal uncertainties posed by “digital death” in the more amorphous realm of “social media.” Part II explores the implications of digital death by conceptualizing digital assets and surveying the underlying legal principles of contractual policies, probate, property, and privacy concerns. Part III surveys current law surrounding digital death, emphasizing a 2010 Oklahoma statute granting executors and administrators power over decedents’ “social networking” accounts. Parts III and IV consider what the current state of the law means for individuals facing death (i.e. everyone) as social media interacts with both (1) probate law and (2) social-media services’ policies as reflected in their terms of service. Part V explores how the law and proposed solutions may address the salient policy goals of honoring decedents’ postmortem wishes while meanwhile respecting privacy; preserving digital assets; and minimizing probate, litigation and other paperwork-type hassles. Ultimately this Comment suggests while state or even federal legislation may call attention to the importance of digital estate planning, a better solution likely lies between the two extremes of the probate-versus-policy power struggle, and that social-media services themselves may be in the better position to quell the perfect storm of legal uncertainty that looms.
February 25, 2013
The $100 Million Home (That the Buyer Can't Move Into)
Here's one of the more unusual home sale restrictions we've come across -- and we aren't referring to the estate's whopping $100 million price tag, although that does indeed put the home among the top five or so most expensive properties in the nation. (The most expensive is the Crespi-Hicks estate, in Dallas of all places, offered at $135 million.)
No, here's the real catch: You can't move in right away. In fact, who knows when you'll be able to move in.
The property has been in the De Guigné family for 150 years. It's currently owned and occupied by Christian de Guigné IV (pronounced de-GEEN-yay), who was born there 76 years ago, the Contra Costa Times reports, and doesn't plan to leave the estate before he leaves this vale of tears. So it's being offered with the stipulation that the new owner can only move in after De Guigné dies. Quite a contingency, that "life estate" arrangement.
The Wolf Family Lecture in Real Property
If you're in Florida for Spring Break next month you should find the time to make it up to Gainesville for the sixth annual Wolf Family Lecture on the American Law of Real Property. This year, Carol Rose will be speaking on “Property Law and the Rise, Life, and Demise of Racially Restrictive Covenants.” The event will take place March 13 at 11:00am.
The Wolf Family Lecture Series was endowed by a gift from UF Law Professor Michael Allan Wolf, who holds the Richard E. Nelson Chair in Local Government Law, and his wife, Betty.
Past scholars who have delivered the Wolf Family Lecture in the American Law of Real Property include Tom Merrill, Greg Alexander, Lee Fennel, Joe Singer, and Vicki Been.
Klass on Tax Benefits, Property Rights, & Incentives for Renewable Energy
Alexandra Klass (Minnesota) has posted Tax Benefits, Property Rights, and Mandates: Considering the Future of Government Support for Renewable Energy on SSRN. Here's the abstract:
This essay explores the history of tax benefits, property rights benefits, and mandates for energy development for the purpose of gaining insights on how such incentives can best be used to encourage the development of renewable energy. Part I describes some of the tax preferences and other financial incentives the U.S. government has historically provided to the energy sector, including to fossil fuel development, renewable fuels (particularly ethanol), and renewable electricity sources. It compares and contrasts the varying types and levels of support for these energy sectors, and concludes that the tax preferences and other financial support provided to date to renewable electricity do not provide the same level of continuity for investment purposes and long-term growth as the support provided to the fossil fuel and biofuels industries. Part II turns to property rights incentives, and discusses the long-time property rights benefits states have conveyed to oil, gas, and other natural resource developers as well as to electric utilities to encourage the development and use of energy resources. This Part suggests that policymakers should use caution in conveying new property rights incentives to renewable energy developers to avoid upsetting existing certainty in property law and also to avoid a situation where the burdens of such changes fall too heavily on a small and discrete number of landowners. Part III considers mandates in the energy industry. These include: (1) state renewable portfolio standards (RPS) for renewable electricity; (2) the federal Renewable Fuel Standard (RFS) that benefits the biofuels industry; and (3) California’s Low Carbon Fuel Standard regulations that mandate use of an increasing amount of fuels with lowered GHG emissions each year in the state. It compares the federal RFS for biofuels with the lack of a similar mandate at the federal level for renewable electricity, and discusses the potential benefits associated with a federal RPS for electricity. Finally, Part IV considers the important role certainty and continuity play in efforts to support renewable energy development. Ultimately, this essay concludes that the continuity and relative certainty associated with certain types of tax benefits and mandates may be the best means of providing long-term support to renewable energy markets. Property rights incentives, on the other hand, should be used more sparingly to provide benefits to particular energy sectors or markets, but may be best used to create the nationwide, physical networks such as electric transmission grid expansions necessary for those markets to exist.