Monday, August 11, 2014
It's rare to come across contemporary examples of hidden treasure:
Police in Florida have seized 60 pounds of silver coins that had been stashed for decades inside the walls of a recently demolished home.
According to officials in St. Cloud, Fla., glass pickle jars holding more than 2,000 coins shattered while city workers were leveling a 1915 bungalow, turning the demolition into a momentary slot machine.
"It was like a treasure hunt — the more you dug the more you found," one of those workers, Melissa Howes, told the Orlando Sentinel. "We thought we might be able to keep it like finders keepers, but it was city property."
The most recent owner of the 776-square-foot house, Lamarr LoMax Lowe, a former Walt Disney World employee, abandoned it after racking up $511,500 in code-enforcement liens, the paper reported.
The seizure included 861 half-dollars, 1,016 quarters, 202 dimes and three nickels, police records show. Some of the oldest coins were dated 1917, officials said.
"We're going to have them appraised to see if they're worth more by weight or as collectible coins," St. Cloud Police Chief Pete Gauntlett told reporters last week.
Gauntlett believes the coins may have been hidden inside the walls by a former owner during the Great Depression.
(HT: Chris Odinet)
Avihay Dorfman (Tel Aviv) & Assaf Jacob (Radziner) have posted Trespass Revisited: Against the Keep-Off Theory of Property and for Owner-Responsibility (Toronto Law Journal) on SSRN. Here's the abstract:
The conventional wisdom has it that a property owner assumes virtually no responsibility for guiding others in fulfilling their duties not to trespass on the former's property. In other words, the entire risk of making an unauthorized use of the property in question rests upon the duty-holders. This view is best captured by the Keep-Off picture of property, according to which the content of the duty in question is that of excluding oneself from a thing that is not one's own. In this article, we argue that this view is mistaken. We advance conceptual, normative, and doctrinal arguments to show that this account runs afoul of the actual workings of the tort in question. A more precise account of trespass to land will reveal that the tort gives rise to a hybrid regime of tort liability: one which combines considerations of fault along with those of strict liability. On the proposed account, therefore, an owner does assume some responsibility for guiding others in fulfilling the duty they owe the former.
Friday, August 8, 2014
From time to time, this blog has covered how white Southerners have used Confederate symbols to claim public spaces as their own. It's no secret that I believe, rather strongly, that the Confederate battle flag has no business flying over any statehouse (I'm looking at you, South Carolina) and that statutes of Confederate leaders should be removed from public squares (Yes, Richmond, that means you). In what I see as a major development on this front, The University of Mississippi, one of bastions of "The Old South" and often referred to as "Ole Miss," has started to recognize the damage that these images and symbols continue to cause:
To most University of Mississippi students and alumni, calling the institution “Ole Miss” is just natural. It’s what people say. University email addresses are @olemiss.edu, not @umiss.edu. But not everyone likes the name.
The university’s announcement on Friday that, as part of a review of race relations at the university, it would encourage “appropriate” use of the term won praise from some quarters but plenty of criticism. So did a series of other announcements by the university, which is hoping to change its association with symbols of the Confederacy. Reports commissioned by the university (which influenced Friday’s announcement) angered some students and alumni—particularly those with ties to the Greek system—by discussing the perceptions of some black students and alumni who are far more critical of university traditions and life at the university than are white students and alumni.
[...] The current review is broader than many of the previous efforts, which focused on specific practices such as flying confederate flags. The university is now discussing diversity broadly, and history and symbols and names that have created strong emotional connections for many students and alumni. The Ole Miss name is a particularly contentious issue.
[...] Of the Ole Miss name, they note that some but not all who use the name are aware of its antebellum past (a name slaves would use for the woman married to the plantation owner). And while the report agrees that many students and alumni love the name, it adds that they see the nickname as a symbol that holds the university back.
The University also looks set to change the name of “Confederate Drive” to “Chapel Lane” and change the names of some facilities to draw attention to the stories of black Mississippians.
(Image: A football game at "Ole Miss" before the University banned flags)
Rick Hills (NYU) and David Schleicher (George Mason) have posted City Replanning on SSRN. Here's the abstract:
In this paper we provide a new defense for one of the most criticized ideas in land use law, that city plans should constitute settled deals about the proper uses of land that should be sticky against subsequent zoning amendments. In the middle of the last century, several prominent scholars argued that courts should find zoning amendments that were contrary to city plans ultra vires. But this idea was largely rejected by courts and scholars alike, with leading figures like Carol Rose, Robert Nelson and Bill Fischel arguing that parcel-specific zoning amendments provide space for the give-and-take of democracy and lead to the efficient amount of development by encouraging negotiations between developers and residents over externalities from new building projects. Their case against plans and in favor of deals suggested that zoning authorities act either as arbiters in land use disputes or as agents for existing residents to encourage negotiated solutions.
We argue, by contrast, that the dismissal of plans was shortsighted and has helped contribute to the excessive strictness of zoning in our richest and most productive cities and regions, which has driven up housing prices excessively and produced outcomes that are economically inefficient and distributively unattractive. In contrast with both planning’s critics and supporters, we argue that plans and comprehensive remappings are best understood as deals. Plans and remappings facilitate trades between city councilmembers who understand the need for new development but refuse to have their neighborhoods be dumping grounds for all new construction. Further, by setting forth what can be constructed as of right, plans reduce the information costs borne by purchasers of land and developers, broadening the market for new construction. We argue that land use law should embrace a version of plans as a procedural tool that packages together policies and sets of zoning changes in a number of neighborhoods simultaneously through procedures that make such packages difficult to unwind.
We conclude by arguing that modern property law scholarship has failed to recognize that real property law is now substantially a public law subject and should be studied using the tools of public law. Leading scholars, most notably Tom Merrill and Henry Smith, have developed sophisticated tools for analyzing the ways in which the common law of property is designed to reduce information costs, which we employ here. But the field has ignored the fact that the common law of property is far less important than it once was as a method for regulating real property ownership and use. Legislatures and administrative agencies at a variety of levels determine most of the rules governing how real property is used and purchased. In order to understand how today’s property law increases or reduces the information costs facing owners, users, potential purchasers and third-parties to property, the field must make an “institutional turn,” studying the likely effects on policy of different institutional arrangements and procedures.
Thursday, August 7, 2014
Wikimedia, the US-based organisation behind Wikipedia, has refused a photographer’s repeated requests to remove one of his images which is used online without his permission, claiming that because a monkey pressed the shutter button it should own the copyright. British nature photographer David Slater was in Indonesia in 2011 attempting to get the perfect image of a crested black macaque when one of the animals came up to investigate his equipment, hijacked a camera and took hundreds of selfies.
Many of them were blurry and some were pointed at the jungle floor, but among them were a handful of fantastic images - including a selfie taken by a grinning female macaque which made headlines around the world and brought Mr Slater his 15 minutes of fame.
Law professors seem to agree with Wikipedia:
“It’s a great final-exam question for a copyright class,” says June Besek, executive director of the Kernochan Center for Law, Media, and the Arts at Columbia Law School. “Under the copyright law as it’s been interpreted, there has to be human authorship for there to be copyright. So I would say there isn’t copyright on the photo.”
But didn't Slater play an important role in the photo’s production, by providing the camera to the monkey?
Not really, Besek says. Authorship of a photo usually involves choosing the perfect angle, moment, and light. “If the situation were different—so the photographer set up a jungle photo, and the photographer stepped out for a smoke, and the monkey ran up and pressed the button, then I would say yes, there is human authorship,” Besek says. A macaque grabbing your Nikon isn’t good enough.
“The photographer doesn’t own it. And the monkey doesn’t, either. It’s in the public domain,” says Chris Sprigman, a law professor at New York University. "To copyright a work, an author needs to show they produced it through their own creativity. It doesn’t matter if you traveled thousands of miles to capture a photo if you weren’t involved in actually snapping it.
Tuesday, August 5, 2014
Slate has a quick summary of the rise of poverty in America's suburbs. Take home points:
But some time around the dot-com bust and 2001 recession, the number of poor people living in the suburbs actually outstripped the total residing in cities. So why is suburban poverty often treated as out of sight, out of mind?
One reason may be that it’s more diffuse. In urban areas, the poor are often packed into predominantly low-income neighborhoods. In the 'burbs, they’re generally scattered through more economically diverse communities. In other words, the U.S. suburbs are home to lots of impoverished people, but they’re not home to lots of slums. [...]
That’s beginning to change, though, according to a new brief by Elizabeth Kneebone of Brookings. During the 2000s, suburban poverty not only grew—it also became more concentrated. In 2000, 27 percent of poor suburbanites lived in neighborhoods with a poverty rate of at least 20 percent. During the 2008–2012 period, the figure was about 38.3 percent.
Adam Mossoff (George Mason) has posted Intellectual Property and Property Rights (Book Chapter) on SSRN. Here's the abstract:
This essay is the introductory chapter to Intellectual Property and Property Rights (Edward Elgar, 2013), which contains some of the leading articles published in recent years on the nature of patents, copyrights, trademarks and trade secrets as property rights. But this essay does not merely review the articles. For the first time in a single essay, it presents the three basic analytical frameworks in which intellectual property rights are defined or justified as property rights – historical, conceptual, and normative.
Drawing upon the substantive content of the articles in the volume and beyond, the essay first reviews the two descriptive framings of intellectual property rights, explaining that intellectual property rights historically have been defined and justified as property rights since the eighteenth century and that there are serious analytical reasons why intellectual property is defined conceptually in this way. The essay then explains how these two descriptive bases – the historical account and conceptual definition – provide a foundation for the two normative justifications for intellectual property as property – the utilitarian and labor-desert theories. Ultimately, the essay summarizes the substantive theoretical case for intellectual property as property, and it also briefly summarizes the critique of intellectual property from the perspective of property rights advocates.
Monday, August 4, 2014
The New York Times Real Estate Q&A
Q. What is a co-op board’s responsibility when a divorcing couple makes a request to transfer the shares from husband and wife to just the husband’s name?
A. Divorces are frequently messy affairs, and a co-op board can easily get dragged into the drama. So, when dealing with divorce, tread carefully. Just as most divorcing couples need a lawyer, a co-op board would be wise to enlist its lawyers, too.
“By definition it gets tricky,” said Arthur Weinstein, a real estate lawyer who has represented many co-ops dealing with warring spouses.
If a couple wants to transfer jointly held shares to one spouse, the board should require that the couple provide a financial disclosure statement to show that the remaining spouse can still afford to pay the maintenance. This may require the divorce decree and supporting documents. If the spouse does not have adequate resources, the board could require that additional money be set aside in escrow or ask the former spouse to provide a guarantee.
Timothy Mulvaney (Texas A&M) has posted Progressive Property Moving Forward (Cal. L. Rev. Cir.) on SSRN. Here's the abstract:
In his thought-provoking recent article, "The Ambition and Transformative Potential of Progressive Property," Ezra Rosser contends that, in the course of laying the foundations of a theory grounded in property’s social nature, scholars who participated in the renowned 2009 Cornell symposium on progressive property have “glossed over” property law’s continuing conquest of American Indian lands and the inheritance of privileges that stem from property-based discrimination against African Americans. I fully share Rosser’s concerns regarding past and continuing racialized acquisition and distribution, if not always his characterization of the select progressive works he critiques. Where I focus in this essay, though, is on the fact that, in the course of articulating his claim that these select progressive works have failed to attend sufficiently to matters of acquisition and distribution, Rosser wavers on whether a system of private property has the very capacity to play even a small part in fostering meaningful progressive change.
After setting forth my understanding of Rosser’s contribution in the first part of the essay, I use the remaining pages to express slightly more confidence than does Rosser in property’s potential to serve a role in furthering a progressive society. If property is to serve in this role, however, I suggest that it seems important to redesign and reinterpret it in accord with three themes — transparency about property rules’ value-dependence, humility about the reach of human knowledge and the mutability of our normative positions, and a concern for the socioeconomic identities of those affected by resource disputes — themes that underlie a broader set of writings than Rosser considers within the contours of “progressive property scholarship” and on which I offer some very preliminary impressions.
Friday, August 1, 2014
Josh Blackman follows the money:
In my last post on #AspenGate, I noted that there were two versions of the 8th Edition of Dukeminier for sale: the traditional print version that you can keep ($223 with the ISBN of 9781454851363) and the “casebook connect” version that you rent ($182 with the ISBN of 9781454837602). I asked my campus book store to stock both versions.
I have since learned that this isn’t possible. Aspen is only allowing bookstores to sell the $223 traditional print version. If students want to obtain the $182 “casebook connect” version, they have to buy it online, and have it shipped to the school. For some reason, the 8th edition is not yet showing up on the Property catalog page, which is a problem because classes start in two weeks!
So here’s the long and short of it. Your students will only be able to buy the more expensive version in the book store, and can buy the cheaper version rental online. As you may expect, the book stores will not be advertising the online version in the stores, as it will undercut them.
I should stress that none of this was made transparent by Aspen. I only found this out through my diligent campus book store who filled me in on the details. I was previously under the impression that both books could be sold in the store, which is not correct. #AspenGate continues.
In honor of the beginning of the month, here are the most downloaded property articles on SSRN over the last 60 days:
5. [102 downloads] Properties of Information & the Legal Implications of Same
Tim Wu (Columbia)
7. [89 downloads] A Case for Simpler Gain Bifurcation for Real Estate Developers
Bradley T. Borden (Brooklyn), Nathan Brown (Independent) & John Wagner
8. [86 downloads] The Stripping of the Trust: A Study in Legal Evolution
Adam S. Hofri-Winogradow (Hebrew U.)
Thursday, July 31, 2014
When it comes to debt in collections, not all regions of the country are equal. As the map above shows, there are "great regional differences and geographic concentrations of debt in collections." New England – Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont – has the lowest concentration of reported debt in collections, although it is still a substantial 25 percent. In some areas of the South and West 4 of every 10 adults you see on the street have a debt collector calling their house. Also of interest, among people with a report of debt in collections, the average amount owed is $5,178.
Jennifer Arlen (NYU) & Stephan Tontrup (Max Planck Institute) have posted Does the Endowment Effect Justify Legal Intervention? The Debiasing Effect of Institutions on SSRN. Here's the abstract:
We claim that the endowment effect rarely justifies legal intervention in private ordering. To our knowledge, we present the first theory to explain how institutions inhibit the endowment effect without altering people’s rights to their entitlements. The endowment effect is substantially caused by anticipated regret. We show that people experience regret only when they feel responsible for the decision and can mute regret by trading through institutions that let them share responsibility with others. As entitlement-holders typically transact through institutions, we expect most people to make unbiased trading decisions in real markets. We test two common institutions — agency and voting — that divide responsibility between multiple actors. Each caused most subjects to debias and trade in our study. We also show that people intentionally debias by employing institutions in order to share responsibility. Thus, when people can freely transact, private ordering generally overcomes the endowment effect.
Wednesday, July 30, 2014
The University of Montana School of Law anticipates hiring a full-time, tenure-track professor beginning in the 2015-2016 academic year to teach in the area of property and related courses. We are committed to integrating theory with practice, making substantial practice experience in the areas to be taught particularly valuable.
Tenure Track Faculty/Property Law Position
Title: Assistant Professor
Position Type: Academic
Closing Date: Screening begins 9/12/2014; applications accepted until further notice or the position is filled
Schedule: Full time academic year position (10 month contract) beginning fall semester 2015
Entry Rate: $72,000-$76,000
Benefits: Medical Insurance/Mandatory Retirement/Professional Development/Partial Tuition Waiver/Wellness
Primary Duties: Primary duties include teaching, scholarship and service, as set forth in the University of Montana School of Law Faculty Handbook. UM Law faculty may also be asked to assist with clinical course supervision.
Specific duties include: Teaching a required Property Law course to ~83 students, along with related elective courses such as intellectual property; advising students with questions about the practice and study of property law; interacting with state, tribal, and federal constituencies; producing scholarship and other written creative achievement; and engaging in professional service, including participation on law school and university committees.
- Juris Doctorate degree from an ABA accredited law school
- a superior academic background
- substantial relevant practical experience in property law
- potential for effective teaching
- potential for scholarship
- the ability to work collegially with students, staff, faculty, and external constituencies of the law school
- creativity, resourcefulness, fairness, compassion, and initiative
Application review will begin September 12, 2014, and continue until the position is filled.
Apply online only at http://umjobs.silkroad.com
IMPORTANT: Please do not send applications directly to the University of Montana School of Law. Applications sent directly to the School of Law will not be considered or forwarded to Human Resource Services. Only applications submitted through the UM online applicant system will be considered. No exceptions. For a full position description, list of materials & instructions to apply, visit https://umjobs.silkroad.com/
ADA/EOE/AA/Veteran's Preference Employer
Donald Clark (George Washington) has posted China's Stealth Urban Land Revolution (American Journal of Comparative Law) on SSRN. Here's the abstract:
Both supporters and critics of China’s urban land use regime use the language of state ownership to describe it. But significant reforms have taken place to that regime since the early 1990s — so much so that over much of China’s urban land area, de facto re-privatization has already occurred. This is because the long-term use rights granted over urban land are economically and legally very similar to full private ownership, and indeed can be found in other jurisdictions where nobody doubts the existence of a private land ownership regime. Although some uncertainties remain, this is because the cost of maintaining them is low whereas the cost of resolving them is high; as that cost balance changes over time, there is reason to believe that they will be resolved before they become a drag on economic development. The analysis presented here applies not only to China, but to any jurisdiction where something less than full fee simple ownership (or its equivalent) is the dominant form of land tenure.
Tuesday, July 29, 2014
The Washington Post piles on the horrible land use regime in San Francisco (and the counter-productive protests against new luxury housing):
Here's the first point, for locals: New housing supply benefits the entire city, even if that new supply takes the form of luxury condos. Tenant activists have regularly objected to new luxury developments as just another sign of gentrification. But even if that housing is intended for high-income tech workers, it will take some pressure off the existing units that those tech workers have occupied at the expense of middle- and lower-income residents. In effect, this means that affordable housing advocates who want to block new high-end developments are simply making the city more expensive.
Here is Moretti's broader point, from some research he has been conducting with Chang-Tai Hsieh at the University of Chicago (h/t Tim Lee): By preventing more workers who would like to live in the city from moving in, San Francisco — and this also goes for New York, San Jose, Boston, Washington, D.C., and to a lesser extent Seattle — is holding back the U.S. economy from being as productive as it could be.
William Fischel (Dartmouth - Econ) has posted From Nectow to Koontz: The Supreme Court's Supervision of Land-Use Regulation on SSRN. Here's the abstract:
This is a preliminary chapter of my book in progress, tentatively titled The New Economics of Zoning Laws. This chapter selectively surveys court decisions on zoning over the past century. I offer new evidence on Nectow v. Cambridge (1927), the first case in which the US Supreme Court overturned a non-racial zoning ordinance. The Court got it wrong, at least by modern standards of review, because a master's report mischaracterized the history of the site and the purpose of zoning. The Court after Nectow has usually been deferential to state courts and local decisionmaking on land use, which I submit is appropriate given the Court’s lack of access to local knowledge. It has since 1987 insisted that the states not abandon the regulatory takings doctrine, but it has also put up substantial procedural barriers to moving cases into federal court. Its decisions create a modest price effect for local governments, which do not have to worry much about paying taxpayers’ money for a judgment unless their regulations leave no economically viable use or cause a physical occupation of the property. The Court’s departures from its deferential tradition have been in the exactions cases, most recently Koontz v. St. Johns River Water Management District (2013). These are economically questionable in that they appear to entrench existing regulations, thus lowering the opportunity cost of maintaining them. The decisions may, however, discourage governments from adopting regulations purely for the sake of obtaining general revenue. Zoning and related land-use regulations are highly popular institutions, though, so it seems unlikely that limiting the exactions process will discourage many of their excesses.
Monday, July 28, 2014
The Associated Press looks at a growing source of tension:
Pot may be legal in some states – but the neighbors don’t have to like it.
Marijuana and hemp have joined wacky paint colors and unsightly fences as common neighborhood disputes facing homeowners associations. Though a few HOAs have willingly changed their rules to accommodate for legal marijuana use or home-growing, many more are banning home pot smoking.
Homeowners associations can’t ban members from using marijuana in their homes when it’s legal. But if neighbors can see or smell weed, the law is clear – HOAs have every right to regulate the drug as a nuisance, or a threat to children along the lines of a swimming pool with no fence.
“The fact that people may be legally entitled to smoke doesn’t mean they can do it wherever they want, any more than they could walk into a restaurant and light up a cigarette,” said Richard Thompson, who owns a management consulting company that specializes in condominium and homeowner associations.
Thompson said his home condo development in Portland is a prime example of how marijuana’s growing acceptance has sparked neighbor conflicts.
“As soon as spring and summer come around, we hear complaints about marijuana smoke because people are out on their patios and they have the windows down,” he said.
Andrea Boyack (Washburn) has posted Common Interest Community Covenants and the Freedom of Contract Myth (Brooklyn Journal of Law and Policy) on SSRN. Here's the abstract:
Courts take a hands-off approach with respect to the content of common interest community (CIC) covenants, reasoning that freedom of contract mandates their enforcement. But CIC covenants differ from voluntary private contracts in important ways, making deferential enforcement in the name of contract policy unwarranted. Covenants that run with the land are specifically enforceable and bind subsequent owners of the property, potentially in perpetuity. Furthermore, CIC covenants are contracts of adhesion, made up of completely non-negotiable, recorded terms bundled into home acquisition. Developers and lenders generally prescribe the content of such covenants, and they may not reflect community desires or values. Contract analogy should not create presumptive validity for all CIC covenants and properly enacted rules. The reality of CIC governance is more complicated and implicates property and constitutional concerns as well as contract law. The proper approach to CIC governance review must draw from all three of these areas of the law. The subject matter scope of CIC governance should be limited based on servitude law principles. Constitutional protections should be legislated for members of CICs. And bona fide, deliberate assent should be prerequisite to holding owners bound to CIC obligations.