Tuesday, February 3, 2015
Daniel Gervais (Vanderbilt) & Martin Holmes (Independent) have posted Fame, Property, and Identity: The Scope and Purpose of the Right Of Publicity (Fordham Intellectual Property, Media & Entertainment Law Journal) on SSRN. Here's the abstract:
Monday, February 2, 2015
In honor of the beginning of the month, here are the most downloaded property articles on SSRN over the last 60 days:
5. [71 downloads] 'We Don't Follow, We Lead': How New York City Will Save Mortgage Loans by Condemning Them
Robert C. Hockett (Cornell)
6. [58 downloads] Missing Sticks: Property Institutions and Income Dissipation in Indian Country
Jacob W. Russ (George Mason) & Thomas Stratmann (George Mason)
7. [58 downloads] Land Law in the Age of Globalization and Land Grabbing
Amnon Lehavi (ICH - Radzyner)
8. [56 downloads] A Coordinated Approach to Food Safety and Land Use Law at the Urban Fringe
Stephen R. Miller (Idaho)
9. [56 downloads] Towards a Pre-History of the Public Domain: Copyright Law and its Limits in Eighteenth-Century England
Simon Stern (Toronto)
10. [55 downloads] Injunctive Relief in Disputes Related to Standard-Essential Patents: Time for the CJEU to Set Fair and Reasonable Presumptions
Pierre Larouche (Tilburg) & Nicolo Zingales (Tilburg)
Friday, January 30, 2015
Common sense says that a dollar goes further in Manhattan, KS, than in Manhattan. This chart from the Tax Foundation attempts to give some rigor to that idea by using Bureau of Economic Analysis data on metro area price levels to show how far $100 can stretch in each county in the United States. There are a few different factors that drive prices. One is that very remote rural areas (see Maine, or even more so, Alaska) tend to have higher prices than rural areas that are more connected to the rest of the country. That reflects the logistical hassles of importing various goods. The other factor is that urban areas are systematically more expensive than rural ones. But there's also huge variation between urban areas. The Boston-Washington corridor and the California coastline are much pricier than the cities of the South and Midwest. That's overwhelmingly a question of housing costs. The size and geography of the big coastal cities has become unfriendly to further sprawl, while zoning restrictions in inner cities and central suburbs prevent new construction from keeping prices in check.
Michael Blumm (Lewis & Clark) and Lynn Schaffer (Lewis & Clark) have posted The Federal Public Trust Doctrine: Misinterpreting Justice Kennedy and Illinois Central Railroad on SSRN. Here's the abstract:
In Alec L. v. McCarthy, an atmospheric trust case, the D.C. Circuit, in an unreflective opinion, rejected the plaintiffs’ claim that the public trust doctrine demanded action on the part of the federal government to curb atmospheric greenhouse gas emissions. The court relied on dicta in Supreme Court opinions to declare that the public trust doctrine does not apply to the federal government, but exists instead entirely as a creature of state law. In this article, we take issue with the D.C. Circuit’s conclusory opinion, maintaining that it rests on a misreading of the Supreme Court’s articulation of the public trust doctrine in Illinois Central Railroad v. Illinois, a century-old opinion in which the Court struck down a state conveyance of Chicago Harbor to the railroad as a violation of the public trust doctrine without any reliance on state law. Consequently, the D.C. Circuit’s interpretation of the Illinois Central opinion as a reflection of state law is erroneous. Similarly, recent statements by Justice Kennedy concerning the distinction between the equal footing and public trust doctrines were misinterpreted by the D.C. Circuit — as well as some other courts.
We maintain that the public trust doctrine is an inherent limit on all sovereign authority, not just states. Illinois Central is best interpreted as an application of the Tenth Amendment’s reserved powers doctrine, which reserved certain rights “to the people.” Just as the Supreme Court limited state sovereignty to enjoin Illinois from privatizing Chicago Harbor, the reserved powers doctrine should apply to the federal government, a government of limited powers. Application of the public trust doctrine to the federal government calls for close judicial oversight of federal conveyance of public resources or attempts to create monopolies, not judicial deference. We think that such judicial skepticism is warranted if the federal government is to fulfill its duties to protect and preserve public resources for future generations.
Thursday, January 29, 2015
Cosmo runs a story about the troubles that Planned Parenthood has encountered while trying to build up a new clinic in New Orleans:
Over the past several years, Louisiana passed a series of abortion restrictions. But one change that flew under the media radar was to the administrative code, requiring any proposed abortion clinic construction to have a "Facility Need Review" (FNR) approved by the Department of Health. Before 2012, FNRs applied to inpatient health care facilities funded largely by Medicare and Medicaid — nursing homes, hospices — and basically required that, before constructing one of those facilities, the owner demonstrate that it was needed in the area, to cut down on potentially wasteful public spending. No other outpatient medical facilities are specifically required to get FNRs, and Medicaid doesn't cover abortion care in Louisiana.
Planned Parenthood applied for an FNR in October 2014, the first clinic to apply since the abortion-specific FNR law was enacted. The Department of Health rejected the request, saying Planned Parenthood "failed to establish the probability of serious, adverse consequences to recipients' ability to access outpatient abortion services" — because there wasn't enough evidence to show that there would be grave consequences for women if the clinic doesn't perform abortions, the clinic cannot perform abortions.
[...] In September, Planned Parenthood held a community meeting to offer information on the clinic and invited local construction firms, particularly woman- and minority-owned businesses, to see if any of them might be interested in bidding on a contract. Anti-abortion activists were there, taking pictures and posting them online with the heading, "Here are more faces who attended the Planned Parenthood strategy meeting to kill babies," and telling readers, "If you are local and recognize any of these people, please implore them not to take Planned Parenthood's blood money." According to a blog post by anti-abortion activist Jill Stanek, who does not live in Louisiana but participated in the online campaign to dissuade contractors from working on the project, "Planned Parenthood asking minorities to help build abortion clinics is akin to having Jews build gas chambers."
Henk Kloppers (North-West University) & Gerrit Pienaar (North-West University) have posted The Historical Context of Land Reform in South Africa and Early Policies (Potchefstroom Electronic Law Journal) on SSRN. Here's the abstract:
The need for the current land reform programme arose from the racially discriminatory laws and practices which were in place for the largest part of the twentieth century, especially those related to land ownership. The application of these discriminatory laws and practices resulted in extreme inequalities in relation to land ownership and land use. This article provides an overview of the most prominent legislation which provides the framework for the policy of racially-based territorial segregation. It further discusses the legislative measures and policies which were instituted during the period from 1991 to 1997, aimed at abolishing racially-based laws and practices related to land and which eventually provided the basis to the current land reform programme.
Tuesday, January 27, 2015
Monica Youn, a Yale law grad and poet has a book coming out, entitled Blackacre. Her poem Whiteacre was recently featured on the American Academy of Poets website. Here's an interview with Youn, where she talks about the influence of the law on her poetry. Here's the poem:
Joseph Singer (Harvard) has posted Property Law Conflicts (Washburn Law Journal) on SSRN. Here's the abstract:
What law applies to real property? At one time the answer to this question was simple: the law of the situs. But then the choice-of-law revolution came and legal scholars began to see reasons to depart from the situs law rule. As interest analysis and the most-significant-relationship test developed, legal theorists undermined the logical and normative basis for such a simple solution to the choice-of-law problem. In recent years, however, the situs rule has been rehabilitated and increasingly defended by some scholars while others have continued to subject it to criticism. And in fact, the rule was never dislodged in practice and it remained the presumptive rule in the Second Restatement of Conflict of Laws. Even today, courts generally apply situs law to real property issues, although important exceptions have developed over time and some brave judges have deviated from the rule in certain classes of cases.
Rather than argue for or against the rule, this article explains the difference between the false conflicts cases where only one state has a legitimate interest in applying its law and the true conflicts cases where two (or more) states have such interests. That analysis shows cases under which situs law clearly should and clearly should not apply, as well as the true conflict cases that are hard because they present value conflicts generating good reasons both for application of situs law and for deviating from it. Those hard cases are of four types: (a) conflicts between situs law and the law of the domicile of one of the parties; (b) conflicts between situs law and the place where a contractual relationship is centered; (c) nuisance-type cases where the conduct is in one state and the injury is in another; and (d) the special case of federal Indian law which involves the paradoxical case of overlapping situses. The article concludes by addressing the renvoi problem. Real property law has traditionally required application of renvoi for issues involving title to real property. This article explains the reasons why that is so and why those reasons are less powerful than we may have thought.
Monday, January 26, 2015
New York Housing Court sounds like a disaster:
Two weeks ago, a city housing inspector visited an apartment on the fourth floor of 940 Prospect Place in Brooklyn and issued a violation to the landlord for inadequate heat. The visit was nothing new — since December 2013, residents of 940 and the adjoining building at 930 Prospect Place have made more than 100 complaints about lack of heat or hot water.
How does a simple heat complaint, confirmed by city housing inspectors, take more than a year to resolve?
For many tenants stuck in cold apartments, Housing Court is, on paper at least, the place where they can meet their landlord on equal footing. In practice, tenants and lawyers say, it can feel more like a black hole where complaints languish, city agencies lack enforcement powers and delay seems to be the rule.
[...] When a resident calls 311 with a heat complaint, the call goes to the Department of Housing Preservation and Development, which automatically notifies the landlord. Two or three days later, the agency is supposed to send an inspector to the apartment that called in the complaint. If the resident is at home when the inspector arrives, and if the apartment is cold at the time, the inspector can issue a violation, giving the landlord 24 hours to repair the condition. The agency issued 12,352 violations for heat and hot water in fiscal year 2014, roughly one for every 10 complaints.
[...] Violations alone do not mean penalties. Unlike city agencies that regulate parking or sanitation, the housing department cannot directly assess fines; instead, it must seek them in Housing Court. Even then, Mr. Henriquez of Make the Road said, civil penalties are usually reduced in negotiations between the landlord and the agency. “When landlords know that,” he said, “that incentivizes a culture of noncompliance.”
William Fischel (Dartmouth - Econ) has posted The Politics and Economics of Metropolitan Sprawl (Book Chapter) on SSRN. Here's the abstract:
This is chapter 8 from my forthcoming book, "Zoning Rules! The Economics of Land Use Regulation," which will be published by the Lincoln Institute of Land Policy in 2015. This chapter addresses the metropolitan problems caused by local zoning, particularly its contribution to excessive suburbanization and regional housing costs. The chapter starts with a stylized political-economic characterization of government in metropolitan areas and explains how the local politics of zoning differ among big central cities, small suburbs, and rural townships and counties. This simple model offers a foundation for explaining exclusionary zoning, metropolitan sprawl, and regional income sorting. The chapter next considers some variations on this model, which are epitomized by the growth boundaries of Portland, Oregon, and the rejection of comprehensive zoning by Houston, Texas. Both have some merit in combatting the problems of local zoning, but both have some drawbacks that undermine either as a paradigm.
Finally, the chapter asks why housing costs and the stringency of land use regulations varies so much by region of the United States. I argue that restrictiveness is largely the product of the demand for housing itself. High productivity regions attract affluent people who want more land use restrictions to protect their home values. Local homeowners control the political process in the high-demand Northeast by virtue of their control of small local governments, where homeowners prevail easily over developers. In the high-demand West Coast, homevoters prevail because of the availability of the voter initiative, which trumps the otherwise prodevelopment politics of counties and larger cities. Evidence for this was the migration to the sunbelt as a result of the 1970s energy crisis. Housing supply remained elastic and home prices stayed low because most states in the South lack both responsive local governments and the voter initiative that would otherwise have facilitated more regulation.
Friday, January 23, 2015
As a result of some sudden retirements, Valparaiso is seeking two property profs to start teaching in the 2015-2016 academic year. The school's advertisements are reproduced below:
FULL TIME TENURE TRACK – 2015-16 Academic Year
VALPARAISO UNIVERSITY LAW SCHOOL (VULS) is seeking to fill a full-time tenure track position with someone interested in teaching property courses as her/his primary teaching responsibility. Beyond property, we have a number of curricular needs, including transactional law, skills training, and experiential learning programs. Applications from entry level and experienced teachers are welcome. Valparaiso University is located in Valparaiso, Indiana, a small college town near the southern shore of Lake Michigan that is approximately fifty miles from downtown Chicago. The town has excellent schools and affordable housing. VULS is an equal opportunity employer with a diverse student body; approximately 38% of the members of the current student body are underrepresented minorities. Please send information to: Chair of the Appointments Committee, Valparaiso University Law School, 656 Greenwich Street, Valparaiso, Indiana, 46383; or, send information by e-mail to email@example.com.
FULL TIME VISITING PROFESSOR – 2015-16 Academic Year
VALPARAISO UNIVERSITY LAW SCHOOL (VULS) is seeking to fill a full-time visiting professor position with someone interested in teaching property courses as her/his primary teaching responsibility. Beyond property, we have a number of curricular needs, including transactional law, skills training, and experiential learning programs. Applications from entry level and experienced teachers are welcome. Valparaiso University is located in Valparaiso, Indiana, a small college town near the southern shore of Lake Michigan that is approximately fifty miles from downtown Chicago. The town has excellent schools and affordable housing. VULS is an equal opportunity employer with a diverse student body; approximately 38% of the members of the current student body are underrepresented minorities. Please send information to: Chair of the Appointments Committee, Valparaiso University Law School, 656 Greenwich Street, Valparaiso, Indiana, 46383; or, send information by e-mail to firstname.lastname@example.org.
Julie Lawton (DePaul) has posted Unraveling the Legal Hybrid of Housing Cooperatives (UMKC Law Review) on SSRN. Here's the abstract:
Housing cooperatives are a form of residential property ownership that first populated in the United States in 1876, though they continue to create legal confusion for legislatures and courts around the country. Housing cooperatives are a corporation, formed pursuant to state statute, solely for the purpose of owning and operating real property for residents. The housing cooperative corporation owns multi-family property occupied by members of the housing cooperative. To become a member, individual residents purchase shares in the cooperative corporation providing them co-ownership in the cooperative corporation, and by extension, co-ownership in the real property. In tandem with the purchase of the cooperative share, each resident executes a proprietary lease representing the occupancy agreement between the resident and the cooperative corporation. The proprietary lease can be short term, such as twelve months, or long term, such as ninety-nine years. Regardless of the term, each resident’s occupancy is governed by the proprietary lease. Residents do not own the real property; the cooperative corporation owns the real property and residents own shares in the corporation. This confluence creates the legal hybrid nature of housing cooperatives: a resident is, at once, both a tenant of the cooperative corporation and co-owner in the cooperative corporation. It is this dual nature that creates the legal conflict in trying to define the legal structure of the housing cooperative.
Some courts, such as Arizona, designate housing cooperatives as ownership and specifically reject the idea of a housing cooperative as rental property. Other courts, such as Illinois, designate housing cooperatives as rental property and reject the argument that a housing cooperative is ownership. One jurisdiction, Georgia, noted that a housing cooperative can be designated homeownership or rental property by the language of the cooperative’s corporate documents. Even the federal government added to the confusion. In an argument before the federal Tax Court, the IRS claimed that a housing cooperative was ownership property, not rental property. The Tax Court disagreed, holding that the residents of the housing cooperative were lease holders, not owners of the housing cooperative real property.
This question of the legal structure of housing cooperatives becomes particularly important when determining the legal process for forcibly terminating the membership of a cooperative resident in an effort to reclaim possession of a terminated member’s unit. Housing cooperatives often attempt to reclaim possession of the unit through an eviction proceeding pursuant to a state’s rental property eviction laws. Residents frequently counter, and some courts have held, that since housing cooperatives are not rental properties, the issue cannot thus be resolved pursuant to an eviction action.
After the court determines whether the cooperative resident is a tenant, there remains the question of the resident’s ownership of the cooperative share. An action of eviction is an action for possession and does not directly resolve the resident’s ownership interest in the cooperative share. Most courts avoid the question by ruling solely on the possessory action without addressing the resident’s ownership interest. Frequently, a cooperative corporation’s bylaws give the cooperative the right to terminate the cooperative resident’s membership with a vote of the cooperative Board of Directors or the cooperative’s members. Cooperatives argue that this membership vote terminates the cooperative resident’s proprietary lease with the cooperative as well as the resident’s ownership of the cooperative share. I argue that the membership termination only terminates the resident’s proprietary lease and, thus only affects the resident’s possessory rights, not the resident’s ownership rights. This Article posits that a housing cooperative is ownership of personal property, not solely, or even primarily, a landlord-tenant relationship. I also argue that when a cooperative resident’s membership is terminated, that the cooperative and the court must bifurcate the decision on possessory rights to the unit from the ownership right to the share.
Part I of the Article introduces the reader to housing cooperatives, their prevalence as an American form of residential housing, and their history. Part II details housing cooperative corporations, their formation, corporate documents and the creation and termination of the housing cooperative membership. Part III evaluates the conflict in the federal and state courts and legislatures about the legal structure of a housing cooperative. Part IV argues that a housing cooperative membership creates ownership of personal property, not solely possession of rental property. Part V presents the rationale behind court decisions holding housing cooperatives as rental property. Part VI argues that housing cooperatives are not ownership of real property. Part VII concludes with the argument that housing cooperative membership creates an ownership interest in the cooperative share, the dispossession of which should be bifurcated from the housing cooperative’s action for possession of the housing cooperative unit.
Thursday, January 22, 2015
Attorney General Eric H. Holder Jr. on Friday barred local and state police from using federal law to seize cash, cars and other property without evidence that a crime occurred. Holder’s action represents the most sweeping check on police power to confiscate personal property since the seizures began three decades ago as part of the war on drugs.
Since 2008, thousands of local and state police agencies have made more than 55,000 seizures of cash and property worth $3 billion under a civil asset forfeiture program at the Justice Department called Equitable Sharing. [...] The program allowed police departments and drug task forces to keep up to 80 percent of the proceeds of the adopted seizures, with the rest going to federal agencies.
The program won’t end civil asset forfeiture abuses entirely, but it will stop local police agencies from circumventing state laws aimed at reining them in. Many states, for example, have imposed stricter evidentiary standards police have to meet before they’re allowed to seize assets without a conviction.
Daniel Lyons (Boston College) has posted Federalism and the Rise of Renewable Energy: Preserving State and Local Voices in the Green Energy Revolution (Case Western Law Review) on SSRN. Here's the abstract:
The rise of renewable energy has disrupted the traditional regulatory structure governing electricity. Unlike traditional fossil fuel power plants, wind and solar facilities are geographically constrained: they exist where the wind blows and the sun shines. Large-scale renewable energy is more likely to flow interstate, from resource-rich prairie and Southwestern states to energy-hungry population centers elsewhere. The difficulties of coordinating interstate electricity policies have led some to call for greater preemption of the states’ traditional duties as chief regulators of the electricity industry. But while preemption would eliminate some state-level roadblocks to interstate cooperation, it would sacrifice many of the benefits of local knowledge and experimentation in a diverse and innovative new marketplace.
This paper examines the benefits of a cooperative federalism approach to electricity regulation. The challenges facing renewable energy are regional in scope, and there is value in preserving state and local voices in policymaking decisions. It examines three aspects of the renewable energy debate — siting generation facilities, building transmission lines, and adopting demand-side renewable energy standards — and, for each, explores governance structures that would promote greater regional cooperation without sacrificing the benefits of decentralized government.
Wednesday, January 21, 2015
Jennifer Wriggins (Maine) has posted Flood Money: The Challenge of U.S. Flood Insurance Reform in a Warming World (Penn State Law Review) on SSRN. Here's the abstract:
Congress’ reforms of the National Flood Insurance Program (NFIP) in 2014 continued its misguided approach to flood insurance policy, ignoring the increased risks of floods posed by climate change and giving generous subsidies to flood-prone properties. The Article analyzes the recent reforms against a backdrop of the NFIP’s history, impacts, and structure, and makes recommendations for steps Congress should take when it revisits the program in 2017. The NFIP has encouraged retention of older flood-prone properties and building in flood-prone areas, which makes little sense given the risks we face. The NFIP, deeply in debt to the Treasury Department, rests in part on an approach to flood risk where risks are pooled but the price individuals pay for flood insurance often is not based on actual flood risk. This solidaristic approach to flood risk, where government subsidizes hundreds of thousands of flood insurance policies, is not based on need or any other credible policy principle. Further, the justifications for continuing the subsidies are weak when compared to other contexts where the federal government has been involved in solidaristic approaches to insurance such as the Affordable Care Act, unemployment insurance, and promoting insurance in urban areas. Congress should gradually remove flood insurance subsidies, fund accurate maps, and allow rates to be based on risk. Because flood insurance is mandatory for mortgageholders in floodprone areas, and risk-based rates may be overly harsh for low-income homeowners, a limited means-tested program should be passed which would allow these homeowners to receive insurance at reduced rates.
Tuesday, January 20, 2015
This is a screenshot from the Prawfsblawg website. The top post in the above picture is an advertisement, written by Westlaw. The bottom post is actual content. There’s no noticable differences in font style, color, or size of the type. The only real tip-off that they're different is the tagline on the top post. That tagline, however, fudges the nature of the post (by tossing in the name of some law professor who has lent their name to West's content it looks like a real blog post). I scrolled over this post a couple of times last week and did not internalize that it's an ad.
This is ethically dubious. It's also not a great strategy for running a blog. When advertisers start writing your posts for you, readers should stop trusting you as an source of honest scholarly inquiry.
Monday, January 19, 2015
In a recent article by Claudio Saunt summarizes the story of dispossession and asks why it doesn't feature more heavily in modern accounts of U.S. history:
There are many reasons to favour a more inclusive history of the United States that places the dispossession of native peoples at its centre. Such a history erases the artificial distinctions that earlier generations drew to discount the presence of native peoples, does not privilege the rise of the nation-state, and better reflects the makeup of today’s US population, which will soon be majority non-white. Its themes also resonate with 21st century concerns, including state-sponsored social engineering, large-scale population displacement, environmental degradation, and global capitalism.
Carol Rose (Arizona) has posted Surprising Commons (BYU Law Review) on SSRN. Here's the abstract:
“Tragedies of the commons” due to overuse and underinvestment have long been known to affect open access resources. Yet decimation of open access commons often catches everyone by surprise. Why the surprise? Among other reasons, overuse may occur in very small increments, or may be an accidental byproduct of seemingly unrelated technology; more generally, a resource’s common status undermines investment in learning about it. Open access to intellectual achievements does not destroy physical resources, but may undermine creative effort — but, in a happy surprise, may instead enhance creativity. An interesting surprise is that the drive to privatize creative achievements has generated a counter-movement to defend open access to these achievements. Scholars following Elinor Ostrom study common resources that are not left in open access but rather limited and managed; here surprises also show a mixture of attractive and unattractive features both in physical and intellectual domains, but they also generate lessons for such modern day developments as crowdsourcing and citizen science.
Friday, January 16, 2015
A recent article in Slate makes some very important points about gentrification. First, the kind of gentrification where rich white people push out poor black families is "exceedingly rare." And, second, when neighborhood change does occur, it's often good for people of color. The rub:
The socio-economic status of most neighborhoods is strikingly stable over time. When the ethnic compositions of low-income black neighborhoods do change, it’s typically because Latinos and other immigrants move into a neighborhood—and such in-migration is probably more beneficial than harmful. As for displacement—the most objectionable feature of gentrification—there’s actually very little evidence it happens. In fact, so-called gentrifying neighborhoods appear to experience less displacement than nongentrifying neighborhoods.
Vox makes a list:
Myth #4: Homelessness is typically related to mental illness. Serious mental illnesses are more prevalent among the homeless: about one in four sheltered homeless people suffered from a severe mental illness in 2010, compared to 5 percent of US adults, according to the Substance Abuse and Mental Health Services Administration (SAMHSA). But city officials cited lack of affordable housing, unemployment, and poverty as the top three causes of homelessness in a 2014 survey from the US Conference of Mayors.
Myth #5: Most homeless people are addicted to drugs and alcohol. Roughly one-third of sheltered homeless adults had chronic substance use issues in 2010, according to the SAMHSA.