PropertyProf Blog

Editor: Stephen Clowney
Univ. of Kentucky College of Law

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Friday, June 20, 2014

Eagle on Regulatory Property

Eagle_stevenSteve Eagle (George Mason) has posted The Perils of Regulatory Property in Land Use Regulation (Washburn Law Review) on SSRN.  Here's the abstract:

"Regulatory property" is the right to engage in specified activities, made valuable by government prohibitions against competitors, and protected by de jure or de facto status as property. This Article explores regulatory property and focuses upon its applications in land use regulation. It considers, inter alia, transferrable development rights, exclusive leases of subsidized sports stadia, and urban revitalization condemnations for retransfer for pre-arranged private development. The Article concludes that these generally are unfair and inefficient practices.

June 20, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, June 19, 2014

Patent Office Cancels Trademark Registration of Washington's Football Team

The Washington Post reports:

The U.S. Patent and Trademark Office canceled the Washington Redskins’ trademark registration on Wednesday, a move that won’t force the NFL team to change its name but fuels the intense fight by opponents to eliminate what they view as a racial slur against Native Americans.

The 99-page decision by the Trademark Trial and Appeal Board said the team’s name and logo are disparaging. It dilutes the Redskins’ legal protection against infringement and hinders the team’s ability to block counterfeit merchandise from entering the country.

But its effect is largely symbolic. The ruling cannot stop the team from selling T-shirts, beer glasses and license-plate holders with the moniker or keep the team from trying to defend itself against others who try to profit from the logo.

The ruling’s main impact is as a cudgel by an increasingly vocal group of Native Americans, lawmakers, former players and others who are trying to persuade team officials to change the name. The backlash against the name has never been more intense.

June 19, 2014 | Permalink | Comments (0) | TrackBack (0)

License Plate Follies

Screen Shot 2014-06-18 at 10.32.52 PM

As we've covered before, some states grant individuals a property interest in their license plate numbers.  That does not mean, however, that private citizens have the right to choose any plate number they want.  Slate has a fluffy piece that catalogues the 995 applications for vanity license plates that the State of Utah has recently rejected:

Like many states, Utah reserves the right not to issue plates that its Division of Motor Vehicles deems inappropriate, either because the plate is obscene, offensive, or otherwise untoward.

Of course, obscenity is famously difficult to define, and some aspects of Utah’s personalized plate laws are easier to interpret than others. The state has issued a more-or-less blanket ban on the number 69, unless “used in a combination with the vehicle make, model, style.” This rule triggered the rejection of at least 39 license plate requests—including 69METS, a seemingly innocuous nod to the New York Mets’ first World Series championship in 1969. But most of the rules are a bit vaguer, leaving it to state officials to know an offensive plate when they see one. Often, the obscenity is plain as day, as in the cases of CARGASM, SKISLUT, and NAZI. Other applicants are cleverer, though not cleverer than the DMV’s watchdogs, who caught MLHICLB, FAHQUU and TIH2TA3 (read that last one backwards).

June 19, 2014 | Permalink | Comments (0) | TrackBack (0)

Smith on the Scholarship of Thomas Merrill

HenryHenry Smith (Harvard) has posted The Thing About Exclusion (Brigham-Kanner Property Rights Conference Journal) on SSRN.  Here's the abstract:

In this contribution to a volume on the work property scholarship of Thomas Merrill, I will show how an account of property as the law of things completes the picture of property, putting the right to exclude in proper perspective. Contra Merrill, the right to exclude is not the sine qua non of property, and the main features of property cannot be derived from the right to exclude. Nonetheless, I will argue that Merrill is right to search for a unifying theme in property and that the relevant thread is the mediation of legal relations through things. From the role of the thing in depersonalizing and formalizing property relations, we can see when the right to exclude and closely related notions of possession are – and are not – important. Private law deals with the complex interactions of members of society, and a first cut at managing potential conflict is to carve the world into modular things, in tangibles or intangibles, and associate them with people through the norms and the law of property. More complex aspects of property from governance strategies to entity property build off of the legal thing. At the heart of property is the thing.

June 19, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 18, 2014

Racial Differences in the Mortgage Market

Matt Yglesias writing for Vox:

Fannie Mae and Freddie Mac are more likely to reject mortgage applications from black and Hispanic borrowers than from non-hispanic whites. That could be evidence of discrimination, or it could simply be a reflection of broader economic gaps in American society.

And, indeed, as this Urban Institute chart shows the primary cause of the racial gap is a difference in credit quality. White families are more likely to get a loan because they're more likely to be highly creditworthy. 

But if you look at the "weak applicants only" lines you'll see that while the black-white gap is still pretty huge. White applications are rejected at a high rate, but black applications seem to be rejected at a fifty percent higher rate.

That could be evidence of direct discrimination or it could be evidence that you need to peer deeper into the data to find an explanation.

Mortgagedenial

June 18, 2014 | Permalink | Comments (0) | TrackBack (0)

Map of the Day: Who Speaks English in Eurpoe?

English-eu

June 18, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 17, 2014

Human Tissue is Property in Canada

The Superior Court of Justice in Ontario recently ruled that human tissue is personal property.  The court's language:

The moving defendants have provided me with an article from the Canadian Medical Association Journal dealing with rights to access excised human tissue and in so doing make conclusions about who “owns” the tissue.[7] It notes that human tissue is excised either for diagnostic purposes/medical care or for research purposes. Diagnostic tissue, such as in the case before me, is tissue obtained in a procedure for patient care and that in accordance with regulations under the Public Hospitals Act[8] must be sent to a laboratory or pathology department  for examination and diagnosis. The sampled and processed tissue is retained as archived diagnostic tissue for a minimum of 20 years in the clinical archives of the pathology department (although excised tissue not specifically sampled is typically discarded within weeks).[9]

The authors state that it “is unquestionably true that patients own their tissue before it is excised”, and while it has never been squarely dealt with by a Canadian court, they conclude that diagnostic tissue, once excised becomes a “component of the medical record” (as required by regulation under the Public Hospitals Act)[10]. As such, “both possession and ownership are transferred to the institution” and “by virtue of it being part of the medical record, diagnostic tissue is therefore owned by the institution or hospital.” At best a patient is entitled to “reasonable access.” The authors note that their conclusion has been supported by American jurisprudence. While this is not binding on me I find the reasoning compellable and I adopt its conclusions.

This is certainly a more honest approach than the California Supreme Court took in Moore v. Regents. A link to the full opinion is here.

(Thanks to Matthew Harrington at the University of Montreal for the tip)

June 17, 2014 | Permalink | Comments (0) | TrackBack (0)

Cities at or Near Their All-Time Peaks of Excellence?

Tyler Cowan makes a list:

1. Berlin 

2. Kuala Lumpur 

3. Mexico City

4. San Francisco 

5. Seoul 

6. Toronto

7. Stockholm 

8. Lagos

Higher living standards count toward this designation, but they are not enough.  Vienna’s general excellence was higher in the 20s, even though the city was much poorer back then, and so Vienna cannot make the list.  Los Angeles probably peaked in the 80s and New York arguably peaked in the postwar period through the 1970s or 80s.  Chicago might have a claim.  Can you think of others?  Does Shanghai have a chance, or did it peak around 2000 or so, before it got so polluted and crowded?

The comments section of Cowen's post gets pretty fierce.

Berlin

2. Kuala Lumpur

3. Mexico City

. Berlin

2. Kuala Lumpur

3. Mexico City

4. San Francisco

5. Seoul

6. Toronto

7. Stockholm

8. Lagos

Higher living standards count toward this designation, but they are not enough.  Vienna’s general excellence was higher in the 20s, even though the city was much poorer back then, and so Vienna cannot make the list.

Los Angeles probably peaked in the 80s and New York arguably peaked in the postwar period through the 1970s or 80s.  Chicago might have a claim.  Can you think of others?  Does Shanghai have a chance, or did it peak around 2000 or so, before it got so polluted and crowded

- See more at: http://marginalrevolution.com/marginalrevolution/2014/06/cities-at-or-near-their-all-time-peaks-of-excellence.html#sthash.VKhuiYxX.dpuf

1. Berlin

2. Kuala Lumpur

3. Mexico City

4. San Francisco

5. Seoul

6. Toronto

7. Stockholm

8. Lagos

Higher living standards count toward this designation, but they are not enough.  Vienna’s general excellence was higher in the 20s, even though the city was much poorer back then, and so Vienna cannot make the list.

Los Angeles probably peaked in the 80s and New York arguably peaked in the postwar period through the 1970s or 80s.  Chicago might have a claim.  Can you think of others?  Does Shanghai have a chance, or did it peak around 2000 or so, before it got so polluted and crowded

- See more at: http://marginalrevolution.com/marginalrevolution/2014/06/cities-at-or-near-their-all-time-peaks-of-excellence.html#sthash.cIdkuKsL.dpuf

1. Berlin

2. Kuala Lumpur

3. Mexico City

4. San Francisco

5. Seoul

6. Toronto

7. Stockholm

8. Lagos

Higher living standards count toward this designation, but they are not enough.  Vienna’s general excellence was higher in the 20s, even though the city was much poorer back then, and so Vienna cannot make the list.

Los Angeles probably peaked in the 80s and New York arguably peaked in the postwar period through the 1970s or 80s.  Chicago might have a claim.  Can you think of others?  Does Shanghai have a chance, or did it peak around 2000 or so, before it got so polluted and crowded?

- See more at: http://marginalrevolution.com/marginalrevolution/2014/06/cities-at-or-near-their-all-time-peaks-of-excellence.html#sthash.cIdkuKsL.dpuf

1. Berlin

2. Kuala Lumpur

3. Mexico City

4. San Francisco

5. Seoul

6. Toronto

7. Stockholm

8. Lagos

Higher living standards count toward this designation, but they are not enough.  Vienna’s general excellence was higher in the 20s, even though the city was much poorer back then, and so Vienna cannot make the list.

Los Angeles probably peaked in the 80s and New York arguably peaked in the postwar period through the 1970s or 80s.  Chicago might have a claim.  Can you think of others?  Does Shanghai have a chance, or did it peak around 2000 or so, before it got so polluted and crowded?

- See more at: http://marginalrevolution.com/marginalrevolution/2014/06/cities-at-or-near-their-all-time-peaks-of-excellence.html#sthash.cIdkuKsL.dpuf

June 17, 2014 | Permalink | Comments (0) | TrackBack (0)

Schneider on the Supreme Court's Recent Interest in the Fair Housing Act

SchneiderValerie Schneider (Howard) has posted In Defense of Disparate Impact: Urban Redevelopment and the Supreme Court's Recent Interest in the Fair Housing Act on SSRN.  Here's the abstract:

Twice in the past three years, the Supreme Court has granted certiorari in Fair Housing cases, and, each time, under pressure from civil rights leaders who feared that the Supreme Court might narrow current Fair Housing Act jurisprudence, the cases settled just weeks before oral argument. Settlements after the Supreme Court grants certiorari are extremely rare, and, in these cases, the settlements reflect a substantial fear among civil rights advocates that the Supreme Court’s recent decisions in cases such as Shelby County v. Holder and Fisher v. University of Texas are working to dismantle many of the protections of the Civil Rights legislation of the 1960s. The sole issue in both of the recently settled Fair Housing Act cases was whether disparate impact analysis – a type of analysis that some on the Supreme Court may view as requiring racial preferences – is valid under the Fair Housing Act.

This article argues that in order to have a chance at achieving the goal of its sponsors – “to replace the ghettos [with] truly integrated and balanced living patterns,” – the Fair Housing Act cannot just take aim at the aberrant individual who intentionally denies a person housing because of his or her race. Instead, the Fair Housing Act must recognize claims based on disparate impact analysis alone. This article argues that disparate impact analysis is especially needed to address urban redevelopment decisions because such decisions are often made through a multi-party protracted process, in which a discriminatory intent may be impossible to discern or entirely absent. Additionally, it is the outcome of large-scale urban redevelopment projects that will truly shape racial housing patterns in the twenty-first century.

June 17, 2014 | Permalink | Comments (0) | TrackBack (0)

Colinvaux on Conservation Easements

ColinvauxRoger Colinvaux (Columbus) has posted Conservation Easements: Design Flaws, Enforcement Challenges, and Reform (Utah Environmental Law Review) on SSRN.  Here's the abstract:

The charitable deduction for conservation easements promises a conservation benefit, lasting forever. Millions of acres have been protected by deductible conservation easements. On average over $1.5 billion are claimed in easement contributions each year, not including corporate contributions. The deduction, however, has serious problems. As use of the incentive has grown, doubts about the public benefit conveyed by conservation easements and significant enforcement difficulties have led to increased scrutiny of land trusts and to a growing chorus of calls for reform of the tax benefit and state laws governing easements. This Essay argues that it is because the tax incentive was born as an exception to the normal charitable deduction rules that many of the problems have resulted. In order to make the deduction fit within the charitable contribution framework, three special rules were enacted: that there be a qualified donee, a conservation purpose, and perpetuity. Although each requirement was intended to protect the promise of conservation, each requirement fails. This largely is because the charitable deduction framework does not contemplate an ongoing enforcement role for the IRS to police contribution use or donee effectiveness, either at the level of the charitable deduction or at the level of tax exemption. These design flaws have thus led the way to a retinue of wide-ranging reform proposals. The Essay suggests that the proven challenges of using the charitable deduction for partial interest conservation contributions warrant a comprehensive reform – either through elimination of the tax incentive, or conversion to a tax credit.

June 17, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, June 16, 2014

Map of the Day: Who Calls it Soccer

Football

The map above details what people around the world call the sport that we know as “soccer.” In short, Ireland, Australia, New Zealand, South Africa, and a couple other nations join the U.S. in our refusal to conform world norm of "football."

But why do Americans call it soccer?  Blame the British - they started it.  In late nineteenth century  England, two types of football developed in parallel: rugby football and association football. The slang term for rugby football was "rugger," and the slang for association football was "assoc." The word "assoc" gradually evolved into "soccer."  When association football came to North America, "gridiron" American football already had a foothold. To avoid confusion, Americans adopted the British nickname "soccer" for the new sport.

June 16, 2014 | Permalink | Comments (0) | TrackBack (0)

Alexander on the Right to Roam

GregalexGreg Alexander (Cornell) has posted The Sporting Life: Democratic Culture and the Historical Origins of the Scottish Right To Roam on SSRN.  Here's the abstract:

In 2003, the Scottish Parliament enacted the Land Reform (Scotland) Act, which, among other reforms, grants to "everyone" a right to access virtually all land in Scotland for a wide variety of purposes, including recreation, educational activities, and even some commercial or for-profit activities. Legal recognition of this broad-ranging "right to roam" comes after more than a century of debate over the public’s right to access privately-owned land in the Scottish Highlands. This paper is the first historical account of the origins of the remarkable Scottish right to roam. It sets the debate over the right to roam with a clash between two different visions of the sporting life: One, older, rooted in the Victorian and Edwardian periods, viewed the sporting life as one of hunting, aided by the use of modern technology — rifles and such — and much older technology in the form of dogs and horses. The other vision is of more recent vintage. It is a vision of contact with nature through walking, hiking, and similar forms of unmediated interaction with nature. Curiously, both visions of the sporting life claimed the mantle of preservation and conservation. The paper argues that the culture of unmediated contact with nature ultimately prevailed as a democratic culture became more entrenched in both politics and society.

June 16, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 11, 2014

Outka on Land Use, Land Use Change, and Forestry

Uma Outka (Kansas) has posted Land Use, Land Use Change, and Forestry (Book Chapter) on SSRN.  Here's the abstract:

During negotiations for the Kyoto Protocol to the United Nations Framework Convention on Climate Change (UNFCCC) in the 1990s, the United States (US) played a notable role in securing recognition for the climate mitigation potential in land use, land use change, and forestry (LULUCF). Ultimately, the US did not to ratify the Kyoto Protocol, but as a signatory to the UNFCCC, the US is formally obliged to control its greenhouse gas emissions. This chapter provides an overview of LULUCF in the US and the primary legal regimes that structure US progress toward climate mitigation through LULUCF means. It also addresses points of legal and policy intersection between LULUCF and the energy and transportation sectors, both considered critical to climate mitigation.

June 11, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 10, 2014

University of Florida Law Seeks Non-Tenure Track Skills Professor in Land Use Law

The University of Florida Fredric G. Levin College of Law seeks to fill a non-tenure track skills instructor lecturer position focused on Environmental and Land Use Law. Applicants for this position should hold a J.D. degree from an accredited law school, be a member in good standing of a state Bar, and have a minimum of three years of experience practicing environmental or land use law. Primary responsibilities will include developing and teaching skills courses on topics such as interviewing and counseling as well as skills and experiential courses, including field courses, in the College’s Environmental and Land Use program, and supervising externships and projects. Experience with Florida or federal environmental, water or land use law, current Florida Bar membership, and experience seeking grants are desirable. The anticipated starting date is January 2015. The salary range is $60,000 to $66,500 for a 12-month appointment. Members of groups under-represented in the legal profession including persons of color and women are particularly encouraged to apply. To apply go to: http://jobs.ufl.edu. Refer to requisition number 0905739. Please include CV, transcript(s), and the names of three references. The University of Florida is an equal opportunity employer. If accommodation due to disability is needed to apply for this position, please call (352)392-4621 or TDD (352)392-7734.

June 10, 2014 | Permalink | Comments (0) | TrackBack (0)

Parking Lots Are Bad For Downtowns

The Atlantic Cities blog looks at the scourge of downtown parking lots:

Whether you agree with their premise or not, there’s no arguing that huge surface parking lots create an atmosphere that is inherently hostile to the pedestrian: dull, unbearably hot in summer, windswept in all seasons, and potentially menacing, especially to women returning to their cars alone after dark.

In the Streetfilms short, Garrick talks about the way that guaranteed parking for government employees in the state capital of Hartford, Connecticut, has created an effective moat between the city’s historic residential neighborhoods, many of which have rows of fine brownstones, and its downtown, which has been gutted of small-scale employers and services.

[...] Garrick says that some cities, such as Cambridge, Massachusetts, and more recently Washington, D.C., have made good headway in reversing the trend toward massive parking lots that overwhelm the human scale and lead to downtowns devoid of people. “It’s very hard for people to realize, and it’s very hard to prove that planning is the reason,” says Garrick. “But this is the result of planning.” Better planning, he says, could mean a restoration of cities where the streets are for people, not cars.

June 10, 2014 | Permalink | Comments (0) | TrackBack (0)

Miller on Rural Economic Development

Stephen Miller (Idaho) has posted Three Legal Approaches to Rural Economic Development (Kansas Journal of Law & Public Policy) on SSRN. Here's the abstract:

Rural life has long been vaunted in American culture for its moral compass, hardworking spirit, and sense of community and place. At the same time, the percentage of Americans living in rural communities has been shrinking for generations, and American life has been predominantly urban for over a hundred years. In turn, America has fretted — since the country’s very inception — about the effects of urbanization on rural life, and in turn, how the loss of rituals of rural life would affect society generally. These changes in rural life are redoubled by a massive shift in rural economies since World War II: agriculture, once synonymous with the rural way of life, has become so efficient that it no longer serves as a viable source of jobs for rural people despite providing record profits for agricultural corporations.

This symposium essay takes on these challenges presented to rural economies by sketching out several roles law can play in rural economic development efforts. As rural economic development law depends upon both national and regional contexts, the essay first provides a background summary of the status of rural America. The essay then proceeds to provide background on the practice of rural economic development as it has traditionally been practiced. Finally, the essay sketches three effective legal approaches to rural economic development: “bottom up” planning mandates; redefining plans, zoning and other codes to reflect non-agricultural economic production; and identifying evaluating and disclosing risks of government involvement in rural economic development.

June 10, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, June 6, 2014

Canadian Takings Law Update

Doug Harris (UBC) had an op-ed yesterday in the Vancouver Sun about some recent developments regarding the land that was the subject of the Supreme Court of Canada’s most recent foray into regulatory takings. The case is CPR v. Vancouver, 2006 SCC 5.  A brief recap of the facts: "In 2000, the City of Vancouver passed a by-law that limited the use of a century-old rail line to a public thoroughfare. The Canadian Pacific Railway, which owned the line, claimed the regulation amounted to a taking of its property for which the city should pay compensation. The case, which rose to the Supreme Court of Canada in 2006, marked that court’s first engagement with the doctrine of regulatory taking (also known in Canada as de facto expropriation) in nearly twenty years. " Doug also has a terrific, more academic piece on the case up on SSRN.  It's here.

June 6, 2014 | Permalink | Comments (0) | TrackBack (0)

Map of the Day: A Billionaire Could Buy Your Whole City

Billionaremap

Slate captions the map above:

And yes, this is one of those stunt maps generated by a corporate PR department to get their name out on social media. But it’s a particularly fun one, and the methodology isn’t completely absurd. Redfin apparently added up MLS home sale prices for each city, then multiplied them for a total. So, as they put it, if 10 percent of homes sold for $1 billion total, then they decided the city’s housing stock was worth $10 billion. It's not exactly airtight, and of course it leaves out commercial real estate. (Also, if we wanted to be reallllly nitpicky, the mere act of buying up mass tracts of housing would probably drive up prices across a metro area.) But in you ever find yourself wondering which modern plutocrat could theoretically afford to turn your city into his own fiefdom (without running for mayor), now you have a rough guide.

June 6, 2014 | Permalink | Comments (0) | TrackBack (0)

Babie on Property & Religion in a Secular World

PaulPaul Babie (Adelaide) has posted Private Property in Post Secular Law: An Introductory Foray (Queensland Law Journal) on SSRN.  Here's the abstract:

In the global, plural, post-secular legal environment which characterises twenty-first century life, three reflections assist in considering the contribution of Judaism, Christianity and Islam to a re-conception and re-deployment of private property, as a concept, within the broader structures of capitalism and global markets. Such engagements and dialogue between secular law and theology/religion may reveal that what was always viewed as 'secular' law is not really secular at all, and that what is emerging now is a truly post-secular law, one that depends not only upon liberalism but upon overlapping religious anthropologies and cosmologies. The three reflections offered in this article converge on one alternative model, among many, to the standard liberal account of private property, which may in turn sow the seeds of a post-secular model of private property.

June 6, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, June 5, 2014

Arnold on Adaptive Water Law

TonyTony Arnold (Louisville) has posted Adaptive Water Law (Kansas Law Review) on SSRN.  Here's the abstract:

U.S. water law can be static, rigid, and fragmented, using legal arrangements to give a false sense of security against change. These characteristics are maladaptive to changing conditions and sudden disturbances, as illustrated by conflict in the Colorado River system over decreasing water quantities, tensions between groundwater management and private property rights in Texas, and litigation over nutrient runoff in the Mississippi River basin. Water law must become more adaptive if aquatic ecosystems, legal institutions, and society itself are to be resilient under conditions of change and disturbance. This article applies a relatively new “adaptive law framework” to the field of water law in order to promote social-ecological resilience in water governance. In particular, the article explores three features of an adaptive water law system: 1) shared risk among the system’s stakeholders; 2) conditional and flexible standards, instead of rigid rules, to govern water rights and permits; and 3) integrated water governance. Several examples of watershed planning and governance illustrate various aspects of an adaptive water law system emerging from system participants’ efforts to address water insecurity and rapid transformation of aquatic conditions. These examples include the Santa Ana Watershed Project in California, the Blackfoot Challenge in Montana’s Blackfoot River basin, state-mandated watershed planning in the State of Washington, adaptive management of Kentucky’s Green River, and watershed restoration and regulation in the urban-suburban Anacostia River watershed of Maryland and Washington, D.C.

June 5, 2014 | Permalink | Comments (0) | TrackBack (0)