Monday, July 7, 2014
This map of a nonscientific survey of 5,249 Americans shows that the nation has pretty terrible taste in beer. Note that the survey asked for the respondent's favorite beer, not the beer they drink the most often. While Bud Light (especially the highly alcoholic Bud Light Platinum) has it's place, this map reminds me of the old Monty Python joke: "How is American beer like making love in a canoe?" You can Google the punchline yourself, it's not fit for a family blog.
John Ruple (Utah) & Robert Keiter (Utah) have posted The Future of Federal-State Land Exchanges on SSRN. Here's the abstract:
Today, the land ownership map of the West in many places resembles a crazy quilt, without reason or coherent pattern. Often no single owner (states, private entities, or the Federal government) owns enough contiguous land to allow effective management of land holdings, and fragmented ownership patterns generate a plethora of disputes over access and similar problems.
While this paper focuses on examples from Utah, the challenges posed by a fragmented landscape and conflicting management objectives are much broader. Across the 11 contiguous Western states, state trust lands account for twice the acreage of National Parks and trust lands are often interspersed with protected or sensitive lands. Inholdings within National Forests, for example, total 14.3 million acres.9 While many inholdings are owned by private parties rather than state trust land agencies, the fact that National Forest inholdings in the 11 contiguous Western states account for more land than all of Maryland and Vermont combined indicates the scope of the problem.
Friday, July 4, 2014
TEXAS A&M UNIVERSITY SCHOOL OF LAW seeks to expand its academic program and its strong commitment to scholarship by hiring two exceptional faculty candidates for tenure-track or tenured positions, with rank dependent on qualifications and experience. While the law school welcomes applications in all subject areas, it particularly invites applications in: (1) patent law (including related intellectual property subjects); and (2) legal analysis, research, and writing. Candidates must have a J.D. degree or its equivalent. Preference will be given to those with demonstrated outstanding scholarly achievement and strong classroom teaching skills.
This is an especially attractive time to join Texas A&M University School of Law. Since Texas A&M University acquired the law school from Texas Wesleyan University in August of 2013, applications for admission have increased by over 30 percent and development has grown exponentially, including multiple seven-figure endowed chairs. The law school is poised to build on its tradition of excellence in scholarship, teaching, and public service through the extensive resources and opportunities that result from being part of a world-class public university.
Texas A&M University School of Law is located in vibrant downtown Fort Worth. The Fort Worth/Dallas area, with a total population in excess of six million people, offers a low cost of living and a strong economy.
As an Equal Opportunity Employer, Texas A&M University welcomes applications from a broad spectrum of qualified individuals who will enhance the rich diversity of the law school’s academic community. Applicants should email a résumé and cover letter indicating research and teaching interests to Professor Timothy Mulvaney, Chair of the Faculty Appointments Committee, at email@example.com. Alternatively, résumés can be mailed to Professor Mulvaney at Texas A&M University School of Law, 1515 Commerce Street, Fort Worth, Texas 76102-6509.
The papers from Vanderbilt's recent symposium on "The Role of Federal Law in Private Wealth Transfer" are now hitting SSRN. The Symposium featured a lot of the real heavy-hitters in T&E and is worth checking out. Of particular note for property profs is a paper by Josh Tate (SMU) on perpetuities. Here's the abstract for Tate's Perpetuities and the Genius of a Free State:
The recent rise of perpetual trusts has brought new attention to previously obscure state constitutional prohibitions of perpetuities. This comment examines the historical origins of the first such prohibition, Clause 23 of the 1776 North Carolina Constitution and Declaration of Rights, which provided that "perpetuities and monopolies are contrary to the genius of a free State, and ought not to be allowed." Although many good reasons can be offered for the provision, it is curiously absent from the constitutions of the twelve other original states. Why did this provision emerge only in North Carolina, and not in Virginia, Massachusetts, Pennsylvania, or any of the other “free states” that together rose up against their colonial masters?
This Comment suggests a possible answer to that question. Although the problems with perpetuities were well known to learned inhabitants of all the newly independent American states, those problems were particularly salient in North Carolina in 1776 due to that colony’s unique history as a former proprietary colony. The decision by the heir of one of the original Lords Proprietors not to sell his share back to the British crown gave rise to specific grievances in North Carolina that did not exist in the other twelve former colonies. Moreover, North Carolina was unique in witnessing a violent confrontation between the colonial authorities and backcountry farmers that stemmed in part from those grievances. The peculiar case of the Earl Granville and assorted problems in his Granville District shifted the problem of perpetuities from the periphery to the center of North Carolina politics in the late eighteenth century, and made perpetuities warrant an explicit mention in the 1776 North Carolina Constitution and Declaration of Rights.
Property Profs may also be interested in Rob Sitkoff and Steven Horowitz's work on Unconstitutional Perpetual Trusts.
Thursday, July 3, 2014
ALPS Conference 2015
The Association for Law, Property and Society (ALPS) will hold its sixth annual meeting at the University of Georgia School of Law on May 1-2, 2015. Details, including a call for papers and plenary speakers, will be announced later this summer. Save the dates on your calendar.
3. [102 downloads] No Sticks in My Bundle: Rethinking the Indian Land Tenure Problem
Jessica A. Shoemaker (Nebraska)
4. [86 downloads] Properties of Information & the Legal Implications of Same
Tim Wu (Columbia)
5. [82 downloads] Reinventing the Islamic Law of Inheritance: The Share of Orphaned Grandchild in Islam and Pakistani Legal System
Muhammad Munir (International Islamic University)
6. [81 downloads] The Law Is Nine-Tenths of Possession: An Adage Turned on Its Head
Carol M. Rose (Arizona)
7. [77 downloads] A Case for Simpler Gain Bifurcation for Real Estate Developers
Bradley T. Borden (Brooklyn), Nathan Brown (Independent), & John Wagner (Independent)
10. [70 downloads] The Stripping of the Trust: A Study in Legal Evolution
Adam S. Hofri-Winogradow (Hebrew University)
Wednesday, July 2, 2014
Arkansas is one of the worst places to be a renter in America. It is the only state in the US where tenants are treated as criminals for paying rent late and landlords are not required by law to maintain their properties. Its failure-to-vacate law lets landlords give tenants a 10-day eviction notice if they are even one day overdue. Tenants who can't or won't leave within that span face fines for every day they remain on the property and up to 90 days in jail. This makes things difficult for the third of Arkansas's residents who are renters and have legitimate concerns about the properties they are occupying.
The combination of failure-to-vacate and the lack of warranty of habitability make it almost impossible for tenants to challenge their landlords for legitimate reasons. It's estimated that criminal evictions occur everyday in Arkansas, resulting in over 2000 failure-to-vacate cases being filed each year.
Anna di Robilant (Boston U.) has posted Property: A Bundle of Sticks or a Tree? (Vanderbilt Law Review) on SSRN. Here's the abstract:
In the United States, property debates revolve around two conceptual models of property: the ownership model, originally developed in Europe and now revisited by information theorists and classical liberal theorists of property, and the bundle of rights model, invented in the United States by Hohfeld and the Realists. This article retrieves an alternative concept of property, the tree concept of property. The tree concept of property was developed by European property scholars between 1900 and the 1950s, as part of Europe’s own “realist” moment. It envisions property as a tree: the trunk representing the owner’s right to govern the use of a resource, and the branches representing the many resource-specific property regimes present in modern legal systems (family property, agricultural property, affordable housing property, intellectual property etc.). This article argues that the tree concept of property provides a descriptively more accurate and normatively richer account of property than the two currently dominant models.
Tuesday, July 1, 2014
Nuns take on a strip club in Stone Park, Ill:
The nuns want to see the strip club gone. Last week, they filed a lawsuit against the owners of Club Allure, which opened last year just over the backyard fence from the quiet convent where close to two dozen nuns live.
The nuns aired a long list of grievances: They have been forced to endure loud, pulsating music at night that interrupts their prayers; blinking neon lights that are visible from outside the club; and trash littering the area, including used syringes, empty whiskey bottles and discarded condoms. They also charge that the Village of Stone Park, which is named in the lawsuit, illegally permitted the club to be built despite an Illinois requirement of a 1,000-foot buffer between adult entertainment businesses and places of worship.
[...] The proprietors of the club insist that their presence is perfectly legal and that they have no reason to leave. Sean O’Brien, a managing partner, watched the nuns from the club’s nearly empty parking lot on Wednesday, taking nervous sips from a bottle of Fiji water. “I grew up Catholic, so I do understand all of this,” said Mr. O’Brien, 40. “They make us out to be monsters. But we treat the girls who work here like daughters.” (He then admitted to feeling “a little bit” like a bad Catholic.)
The New York Times has a nifty interactive map are healthy & wealthy, or struggling. Life in Kentucky, it turns out, is rough sledding.
Annie Lowrey writes in the Times Magazine this week about the troubles of Clay County, Ky., which by several measures is the hardest place in America to live. The Upshot came to this conclusion by looking at six data points for each county in the United States: education (percentage of residents with at least a bachelor’s degree), median household income, unemployment rate, disability rate, life expectancy and obesity. We then averaged each county’s relative rank in these categories to create an overall ranking.
[...] The 10 lowest counties in the country, by this ranking, include a cluster of six in the Appalachian Mountains of eastern Kentucky (Breathitt, Clay, Jackson, Lee, Leslie and Magoffin), along with four others in various parts of the rural South: Humphreys County, Miss.; East Carroll Parish, La.; Jefferson County, Ga.; and Lee County, Ark.
(HT: Jessie Owley)
Daniel Fitzpatrick (Australian National University) has posted Rules of Possession Re-Visited: Property and the Problem of Social Order (Law and Social Inquiry) on SSRN. Here's the abstract:
This article explores two propositions in the literature on rules of possession. The first is that rules of first possession may form the basis for "spontaneous order". The article argues that this proposition must take into account a constitutive relationship between property and authority, including the potential for social disorder when competition for possession combines with competition for public authority. The second is that simple rules of possession provide a baseline response to the problem of social order, because of the information costs of property in a large audience context. The article argues that this proposition must take into account correlations between interpretive complexity in rules of possession, and the reproduction of authority and social order in circumstances of threatened social disorder. The analysis highlights the significance of authority and enforcement for the design of rules of possession and their relationship with social order.
Thursday, June 26, 2014
A great article in the Washington Post on the backlash against renovated townhouses that look to take maximum advantage of D.C.'s limitations on building height.
They’re like skyscrapers in small villages: renovated townhouses — but between 40 and 65 feet high — right next to squat, two-story rowhouses in Washington neighborhoods from Petworth to NoMa to Adams Morgan.
Their common nickname: pop-ups. Their common epithet among neighbors and on local blogs: monsters. Middle Fingers.
These skyward-extending residences are spreading across the city, fueled by small developers eager to cash in on the District’s real estate boom and seize any inch of available real estate, which these days means vertical empty space. Though developers have the right to build upward — and say they are providing needed housing stock — the city is evaluating how it can ensure that pop-ups in some neighborhoods reflect their community’s character.
[...] Anyone can drive around the District and find them. The five-story building at 1013 V St. NW dubbed “the Monster” is the most notorious. But the pop-up bible is the PoPville blog, which for several years has chronicled the advance of pop-ups with the same curiosity people had when McMansions began cropping up on old farms in Northern Virginia. (The “PoP” in the blog’s name stands for Prince of Petworth, the Web site’s original name.) Dan Silverman, the site’s publisher, frequently posts his and readers’ comments, along with photographs of some of the more unusual buildings.
Angela Riley (UCLA) has posted Native American Lands and the Supreme Court (Journal of Supreme Court History) on SSRN. Here's the abstract:
The Supreme Court has been instrumental in defining legal rights and obligations pertaining to Indian lands since its first path-making decision in the field in Johnson v. McIntosh in 1823. But the groundwork for the Court's contemplation of such cases predates Supreme Court jurisprudence, and it in fact predates the formation of the Court and the United States itself.
When Europeans first made contact with this continent, they encountered hundreds of indigenous, sovereign nations representing enormous diversity in terms of language, culture, religion, and governance. For those indigenous groups -- as is a common attribute of indignity of similarly situated indigenous groups around the world -- this land was and is holy land. Indigenous creation stories root Indian people in this continent -- Turtle Island to many -- as the focal point of life, creation, religion, culture, and language. In the settlement of the country, the colonial powers initially -- and the United States subsequently -- treated with Indian nations to negotiate the transfer of lands from Indians to Europeans, often in exchange for peace or protection.
Wednesday, June 25, 2014
Sheldon Lyke (Whittier) has posted Diversity as Commons (Tulane Law Review) on SSRN. Here's the abstract:
Educational diversity arose as a shared valuable resource benefitting both universities and students in two landmark affirmative action cases — Regents of the University of California v. Bakke and Grutter v. Bollinger. This Article argues that diversity empirically resembles a commons (i.e., a shared resource). Extending this analysis exposes plaintiffs who file anti-affirmative action lawsuits — individuals like Abigail Fisher in Fisher v. University of Texas — as agents of enclosure who are trying to enclose the educational diversity commons, destroy its management structure, and privatize it for their own benefit (i.e. to gain admission into elite universities). Examining diversity and affirmative action through a common property lens reveals that the defense of race-conscious admissions policies faces a collective action problem. The interests of universities and their minority students largely overlap in their desire to protect diversity. They diverge, however, when universities refuse to employ additional equality rationales that could strengthen the defense of diversity and race-conscious admissions. This refusal facilitates anti-affirmative action efforts.
Tuesday, June 24, 2014
Call for Papers
In the summer of 2014 Savannah Law School will complete its comprehensive restoration of the historic Candler Hospital on Forsyth Park. Originally constructed in 1819, the building has been home to a diverse group of tenants in its nearly two-hundred-year lifespan: military doctors, Confederate and Union soldiers, general practitioners, female nurses-in-training, the mentally ill, and rumored ghosts. The building was once a representation of the grand achievements of a flourishing Southern port city, but as the city changed in both appearance and demographics, the building was abandoned and left in ruin for decades. However, what was once old and neglected is now preserved and revitalized. The Savannah brick and stucco edifice now rests on a new foundation—the meaning of the space changed once more—the building is at once both old and new.
Inspired by Savannah Law School’s progressive remodel of the historic Candler Hospital and the scholarship of Professor Alfred Brophy, Savannah Law Review is hosting a colloquium titled [Re]Integrating Spaces to examine the parallel themes of historic preservation and transformation as well as societal sense of place, space, and meaning within the law.
Professor Brophy of UNC School of Law has written extensively about Southern legal history and the role of property entitlements and property law in shaping the trajectory of the racial experience. Professor Brophy has agreed to come to Savannah to present the keynote address of [Re]Integrating Spaces and publish a related article in Savannah Law Review’s Winter 2014 Issue. Others presenting and publishing for [Re]Integrating Spaces include Professor Kali Murray (Marquette University School of Law), Professor Stephen Clowney (University of Arkansas College of Law), Professor Anthony Baker (Atlanta’s John Marshall Law School), Professor Connie Pinkerton (Savannah College of Art & Design), and more.
The Colloquium will take place at Savannah Law School, Friday and Saturday, September 19-20, 2014—likely the first public event held in the historic Candler Hospital for several decades. With this Call for Papers, Savannah Law Review invites panelists and written submissions in the general themes of [Re]Integrating Spaces.
Please submit an abstract no longer than two-hundred and fifty words by August 1, 2014. Send submissions to firstname.lastname@example.org with [Re]Integrating Spaces in the subject line.
Tony Arnold (Louisville) has posted Resilient Cities and Adaptive Law (Idaho Law Review) on SSRN. Here's the abstract:
This article explores the roles that legal institutions play in enhancing or impeding the social-ecological resilience of cities in the United States. Resilience is the capacity of a system to withstand or adapt to disturbances while maintaining the same basic structures and functions. Attention to what makes cities resilient or not is growing, but both the scholarship and practice of resilient cities mean many different things in many different contexts. This article calls for an integrated approach to the interlinked resilience of social systems, ecological systems, and institutions. Drawing on a recent adaptive law framework developed by resilience scientist Lance Gunderson and law-and-institutions scholar Tony Arnold, this article explores three overarching themes in the legal systems effects on cities' social-ecological resilience: 1) the benefits and limits of polycentric local governance; 2) the effects of the institution of private property on urban resilience in the U.S.; and 3) the adaptive capacity of cities, including the use of adaptive management and adaptive planning methods and the development of adaptive governance systems and structures.
Monday, June 23, 2014
A recent piece in the The New York Times asks some property-themed questions:
Who owns a restaurant reservation?
Is it the restaurant, having set aside a table as a courtesy for a particular guest? Is it the guest, who made the reservation and can use it — or not — at will? Or is it the entrepreneur who pays workers to frantically redial reservation lines at the moment when prime tables are made available, snagging them under false names and marking them up for sale?
This is the crux of the restaurant industry’s current debate over selling reservations for cash, a smoldering issue being reignited by mobile apps that do just that.
When restaurants don’t charge for reservations, they tend to hold back tables for regular customers, celebrities, very attractive people and the politically and socially well connected. You might be dying to go to that restaurant for a special birthday or anniversary, but you’ll simply be unable to get in. Money is ultimately a more egalitarian force than privilege, as everyone’s greenbacks are worth the same.
Robin Craig (Utah) has posted An Historical Look at Planning for the Federal Public Lands: Adding Marine Spatial Planning Offshore (George Washington Journal of Energy & Environmental Law) on SSRN. Here's the abstract:
The federal government controls far more offshore public lands - the Outer Continental Shelf - than it controls terrestrial lands, but the oceans have been bereft of the kind of comprehensive planning mandated for other public lands under statutes like the Federal Lands Policy and Management Act (FLPMA) or the National Forest Management Act (NMFA). Beginning with the Oceans Act of 2000, however, the federal government has considered adopting comprehensive planning for the oceans, generally known as marine spatial planning or marine zoning. Indeed, reports such as those from the Pew Oceans Commission in 2003 and the U.S. Commission on Ocean Policy in 2004 strongly recommended national and regional marine spatial planning for the United States' oceans.
When the National Ocean Council proposed its Implementation Plan for the newly created U.S. Ocean Policy, it would have required comprehensive regional marine spatial planning in all U.S. ocean waters. In April 2013, however, the Council’s Final Implementation Plan reclassified marine spatial planning from a mandatory activity to a voluntary one, once again leaving the nation's offshore lands and waters without any legal mandate for comprehensive planning. This gap has important implications for offshore energy production and adaptation to climate change; it also perpetuates the regulatory fragmentation of ocean jurisdiction that prompted Congress to enact the Oceans Act fourteen years ago. This Article explores the implications of the Final Implementation Plan for the future of a comprehensive governance regime for the nation’s offshore resources, comparing the history of marine spatial planning in the United States to the histories of comprehensive planning for other federal public lands.
Friday, June 20, 2014
The Long Island mansion used for “The Money Pit,” the 1986 comedy starring Tom Hanks and Shelley Long about the ultimate fixer-upper fiasco, is poised to go on the market for $12.5 million. The annual property taxes on the home are $65,992.
The eight-bedroom 1898 house in Lattingtown, N.Y., has been totally redone, meticulously designed and decorated with a Versace-esque flair. The three-story white clapboard home has a center hall and is reached through a gated entrance and down a quarter-mile-long rhododendron-lined drive to a white-pebble motor court. “It’s now the anti-'Money Pit,’ ” said Shawn Elliott of Shawn Elliott Luxury Homes & Estates, the listing broker. “The home was restored at the highest quality.”