Sunday, April 24, 2016
Please see the attached call for panels and papers for the 2016 Society of American Law Teachers (SALT) Teaching Conference! Proposals are due by June 15, 2016. We look forward to seeing you in Chicago this fall!
Friday and Saturday, September 30 and October 1, 2016
The John Marshall Law School, Chicago, Illinois
Wednesday, March 2, 2016
(University of Idaho students discussing a culvert on a Boulder Creek tributary scheduled to be replaced to improve salmonid habitat.)
A common complaint about legal education is a perceived lack of “practical” experience. Law schools across the country, including at the University of Idaho, have addressed this need by increasing opportunities for students to participate in live-client experiences through clinics or internships, and by incorporating practical exercises throughout the substantive curriculum. But although students now have the opportunity to draft real legal documents, appear in court, and communicate with clients, many students are still missing exposure to the “things” of law—the people and places that law affects and effects.
The study of law is, of course, notoriously dense and difficult, with much in the way of words and little in the way of images, places, or dirt under the fingernails. This is a serious problem, as should be particularly obvious when we are studying the law of natural resources, land use, environmental protection, and real places and real people. We cannot understand conflict, and cannot propose useful solutions, until we know—intimately—the people and landscapes where those conflicts arise.
In August 2014, during my first attempt at offering a field course in natural resources law at the University of Idaho’s McCall Field Campus, we spent all of one afternoon driving gravel roads around what would become the Lost Creek-Boulder Creek Landscape Restoration Project on the Payette National Forest. We were looking at places that would be burned, roads that would be closed, and culverts that would be replaced to allow for steelhead and bull trout passage. I also tried to take advantage of our time in the forest to teach my students to identify all of the trees in the area, and perhaps more important—to me at least—to care about what those trees are. This is something of a Long-family tradition that I have taken from my father and am trying to impose on my own sons. My sons seem to enjoy it, but on the Payette, I got the sense that while a few of the students seemed to want to know the trees, most were bored—or worse, annoyed—by my constant pestering.
I finally felt compelled to pull our van over in a large clearing, at the high point of that day’s drive. The spot is known as Railroad Saddle, and is the hydrologic divide between Boulder Creek to the north and Lost Creek to the south. It is a broad, open, and relatively flat divide, offering few clues as to its legal and ecological significance.
But it is significant. Boulder Creek flows north and east about twenty miles to the Little Salmon River, which continues north until it meets the main stem of the Salmon River at the small town of Riggins, Idaho. At this point, the Salmon has mostly completed its unencumbered journey across Idaho. From Riggins, it continues north and then west before finally joining with the Snake River on the Idaho-Oregon border.
Precipitation falling south of Railroad Saddle follows a different path, flowing into the East Fork of Lost Creek. The East Fork flows about eight miles before joining with Lost Creek itself, a mile or so upstream of the Lost Valley Reservoir. After pausing a bit in the reservoir—filled with algae, surrounded by cows and overgrazed riparian areas, off-road vehicle trails, and paradoxically, a colony of the threatened Northern Idaho Ground Squirrel—Lost Creek continues on another ten miles to the West Fork of the Weiser River. This becomes the Weiser River, and then after flowing southwest for quite a while, eventually also meets the Snake River at the town of Weiser, Idaho, also on the Idaho-Oregon border.
Although both Boulder Creek and Lost Creek are part of the larger Snake River watershed, they differ in meaningful ways. The divide is open and flat enough that you can look each direction and see how the vegetative communities change, from the thicker, wetter, Douglas fir dominated forests in the mostly north-facing Boulder Creek drainage to the more open, drier, Ponderosa Pine forests on Lost Creek. Because we had spent the morning with the New Meadows District Ranger, we also knew that as we traveled from Boulder Creek into Lost Creek, we’d start seeing more cows and more evidence of unauthorized off-road vehicle use.
But it is what we cannot see that might matter more, particularly from a legal perspective. Boulder Creek is part of the Salmon River watershed, famous for containing the largest area of contiguous wilderness in the continental United States—the Frank Church River of No Return Wilderness. Although the Frank Church gets the most press, the Salmon River watershed is also home to the Gospel Hump Wilderness and millions of acres of National Forest. It is a fairly pristine watershed, as they go in the contemporary West, and between Railroad Saddle and the confluence of the Salmon and Snake Rivers, there are no dams, just as there are no dams on the entire Salmon River itself.
The Weiser River, and thus Lost Creek that flows into it, are farther upstream in the Snake River watershed. Lost Creek has its own dam, just a few miles from where we stand on Railroad Divide. But much more significant, immediately after flowing into the Snake River, the Weiser River water enters Brownlee Reservoir and the slack water of Brownlee Dam. Below Brownlee, it becomes the slack water of Oxbow Dam, and then the slack water of Hells Canyon Dam, a 330-feet tall concrete monolith standing at the head of Hells Canyon.
Together, these three dams—the Hells Canyon Complex, owned and operated by Idaho Power—are a complete barrier to fish passage, and the thousands of miles of streams that were historic spawning grounds for migrating salmon and steelhead.
This is what we cannot see, standing on Railroad Divide. Despite having to endure the eight dams on the Columbia and Lower Snake rivers on their journeys to and from the Pacific, salmon and steelhead continue to survive, and on occasion thrive, in the watershed to our north. But there are no migrating salmon or steelhead in the watershed just a few feet to our south.
The law means two very different things in these few feet of space we occupy on Railroad Divide, some of us standing in salmon habitat, some of us not. And we can see those differences on the ground, and in the proposals for landscape restoration we discussed in the morning and are visiting in the afternoon. The hours we spent seeking out culverts—both old and new—would have been largely meaningless just a hundred yards to our south. And the cows and off-road vehicles we will soon see would be much more meaningful—as significant as they already are—just a hundred yards to our north.
All of these subtle, meaningful things come together in this one place, as law on the ground. During this day, we have seen human uses on the landscape: sheep and old timber harvests and camping areas complete with 1950s pit toilets. We have seen the different trees, the different slopes and mountains and streams. And we have talked and thought and seen the effects of law. And so concluding my Railroad Divide soliloquy, I tell my students that it is my belief—and the raison d’être of the class—that you can only understand how law works, and why, when you understand the natural history of a place, when you know the people who live there and what they care about, and when you have walked the landscape and felt the rocks beneath your feet, waded the streams, and maybe crawled through the culverts.
And when you know the trees.
Railroad Divide, as a place, demonstrates how understanding specific laws, or particular legal or policy decisions, requires moving beyond text and into the forests. Understanding place in a broader sense is at once as simple as thinking about how water flows across the ground, and as complex as all of the constellations of legal, cultural, social, and physical landscapes through which that water might pass. An intricate understanding of people and landscapes, and of the unique cultural and social histories they developed on those landscapes, similarly requires exploring the streams and forests, meeting the people, and thinking about how legal, social, and cultural relationships work themselves out on the ground.
Monday, January 25, 2016
As part of this semester’s introduction to Environmental Law, I asked my students what “Environmental Law” means to them. The first answer was “government interference with private property rights.”
Because any resource protection or allocation regime must work in place, I spend a lot of time in all of my classes discussing the hows and whys—and benefits—of natural resource regulation in Idaho. One aspect of this discussion is always about the role of free market principles in managing the natural environment. But this aspect of the conversation seems to trend toward the abstract, without context that is meaningful for students who might have grown up in the farming, ranching, timber, and mining towns that are still home to many Idaho residents.
The first two weeks of January (both this year and last), I co-taught a course on international aspects of water resource conflicts in the Bio Bío river basin in Chile. Two things tend to surprise our students. First, new dams (including this approved project on the Rio Cuervo in northern Patagonia) are a significant part of Chile’s water resource planning, for a variety of both simple and complex reasons. And second, Chile has chosen to privatize water rights and rely on a market approach to allocating water use.
Despite being thousands of miles from home in a country most of them know very little about, this second element of Chile’s water resource regime provides context useful for my Idaho law students, many of whom innately distrust government and prefer market-based natural resource regulation.
After the Pinochet military coup in 1973, the new military dictatorship relied on a group of largely U.S.-trained economists knows as the “Chicago Boys” to implement a water code that relied almost entirely on privatization and freely-tradable water rights. Carl Bauer’s book Siren Song (and his related articles) contains an excellent overview of Chile’s water code, with Silvia Borzutzky and Elisabeth Madden (Markets Awash: The privatization of Chilean water markets, 25 J. Int. Dev. 251 (2013)) providing an update on changes since Siren Song was published in 2004.
Why is the Chile story useful for my Idaho students? Because, as you might imagine, the system hasn’t worked out as hoped. In practice, Chile’s water markets work relatively well in watersheds without competing types of uses (i.e., little or no hydropower v. irrigation conflict). And not surprisingly, the markets work relatively well when sufficient water is available for all users.
But when there is conflict, both with respect to the type of use or amount of water available, the system struggles. Part of the difficulty is due to a system that encouraged speculation, that doesn’t seem to honor priority in time, that failed to precisely define rights to water, or that made an unrealistic distinction between consumptive and non-consumptive uses. On that last point, the Chilean Supreme Court determined that a dam operator, with a “non-consumptive” right, could freely alter water flows even if the altered flows harm preexisting downstream consumptive rights holders.
This is only a simplified, incomplete introduction. But for anyone interested in property, water, or natural resources management, Chile’s story is fascinating. I recommend considering it. It relies on private property rights without adequately protecting them. It characterizes water as a public good, while allowing (until recently) private speculation and hoarding. It adopted an ‘American’ understanding of the role of the market to a greater extent than we’ve ever considered. And it provides a great case study to help think about water resource conflicts in the western United States, and the appropriate balance of market mechanisms and government regulation.
Wednesday, August 7, 2013
Interesting conflict in Dallas between the Nasher Sculpture Center and a brand new, $200 million, 42-story residential condo tower which reflects some serious glare on the center. Museum officials report that the garden has had to be resodded twice because of the heat of the glare, trees have been burned, and the galleries have been compromised. Evil greedy developer versus a museum? Except that the Museum Tower was built and is owned by the Dallas Police and Fire pension fund.
The conflict between the tower and the museum would be a fun ripped-from-the-headlines hypo to allow property students to discuss the balance between private property rights, nuisance, etc.
Tuesday, May 1, 2012
Steve's introduction probably says it all, though it should have been "Australasian law journals (mostly NZ really)".
My recent work has appeared (or is forthcoming) in a balance of professional and academic journals - first point of comparison: New Zealand essentially doesn't have student-edited law reviews. There are what you might call "bar journals" (mostly for the profession) and "refereed journals" (which are refereed, generally on a blind peer-review basis). Some journals are student-edited in the sense of citation-checking, etc, but most publication decisions are made by faculty members.
My forthcoming academic articles are on "property rights in resource consents: some thoughts from law and economics" and a "response" article on issues with remedial schemes for leaky buildings, taking into account ideas from gridlock and the role of morale in property rights. Professional articles have been on body corporate AGM's (governance of common interest communities, sort of), and management agreements for bodies corporate (management of common interest communities, sort of).
My interest in unit titles deserves a bit of an introduction. These are called "strata titles" in Australia, and the nearest US comparison is probably with condominiums, but NZ law has become particularly prescriptive and is probably less flexible than US law in this area. I hesitate to use the phrase "common interest communities" because unit titles are a particular type of title/ownership/governance - very different to say a fee simple subdivision, even though in particular instances both/neither may relate to gated communities, or private infrastructure, etc. A recent book with an NZ connection has used the term "Multi-Owned Housing", but I don't think that is quite right either, because many of the unit titles issues relate to mixed-use developments (commercial, residential, retail, etc).
I am particularly interested in the intersection (good academic word) of unit titles with administrative law, company law, and broader ideas of property theory.
Finally, my "day job" is as a director (aka partner, but we incorporated pursuant to an NZ law change) of a mid-size law firm. My practice covers both company/commercial and property law, as well as the management and other responsibilities of being in this role.
Also, I am guest lecturing securities law at the University of Waikato this semester. Interestingly (by way of comparison) NZ is seeing a complete overhaul of securities law after the GFC - but property law is essentially untouched (no greater regulation of mortgagees, foreclosure, etc).
That's enough introduction for now. Other posts will hopefully be more substantive.
Sunday, January 22, 2012
I'm teaching Johnson v. M'Intosh tomorrow, so I thought it would be fun to find the original land grant to William McIntosh. My favorite part is how they crossed out James Madison's name at the top and handwrote in "Monroe."
A few years ago, you had to visit the National Archives to get copies of original land grants. Today, many are digitized and available online at the Bureau of Land Management's General Land Office website.
You can click on the image to the right to get a larger version of the grant. Feel free to e-mail me if you want a high resolution, full-size version. I also have a map of Illinois from 1818, which shows that most of the state covered by the Johnson grant was not yet surveyed and open for settlement.
Friday, January 20, 2012
We discussed the common law right of publicity today in class, particularly the 1993 9th Circuit Vanna White v. Samsung Electronics case. If you aren't familiar with the case, Samsung had a national ad campaign which featured an image of a robot wearing a blonde wig, turning letters on a Wheel of Fortune-type board. The campaign did not name White or Wheel of Fortune, but in the context, it is pretty clear that they meant to invoke White. They even referred to the ad internally as the "Vanna White ad." Underneath the image, the text read: "Longest running game show, 2012 A.D." The class thought that bit was fairly funny.
We also discussed a ripped-from-the-headlines example of the Steve Jobs action figure. The company "in icons" had proposed to sell the 1-foot, increadibly realistic action figure, beginning in February. It received a cease and desist letter from Apple, threatening legal action. After initially refusing to budge, in icons caved yesterday, announcing that out of respect for the Jobs family, it would not produce the figure.
Discussing the Jobs action figure after reading the White case was very effective, allowing us to debate drawing distinctions between property rules protecting the images of entertainment celebrities (like White) and public figures (like Jobs), the living and the dead, those who made money by selling their image, versus those who did not. The same issues can be raised by discussing White v. Samsung and the Martin Luther King Jr. Center for Social Change case.
Thursday, January 19, 2012
I'm about to teach Kelo to my Property students. They'd all remember the hubbub about the case, right? It was only a few years ago, right? Wrong. Many of them were in 9th grade. I asked the class how many people remembered the case. Only about 15% raised their hands. Be warned. We are old.
[Comments are held for approval, so there will be some delay in posting]
Wednesday, January 4, 2012
I have previously blogged about my efforts (which are hardly unusual) to integrate more lawyering skills and practical considerations into my Property course. It is perhaps more difficult to simultaneously teach theory and practice in heavily doctrinal, common law 1L courses like Property. However, it seems more natural for me to teach Property doctrine in a practical context since that is how I experienced the material during 11 years of practice. For many professors who lack that background, teaching Property in an integrated way would be much more daunting.
Thankfully, Colleen Medill of the University of Nebraska College of Law (my father’s alma mater!) has come to the rescue with her new book, Developing Professional Skills: Property. Designed as a supplement to traditional casebooks, and keyed to the major titles, Medill’s slim volume (approx. 120 pages, $25 cover price, $18 for the online version), is concise but powerful. Ten chapters cover the topics of: finders, trespass and adverse possession, gifts, present and future interests, co-ownership relationships, landlord and tenant relationships, real estate disclosures, conveying title to real estate, easements, and takings. Each chapter focuses on a different skill, including replying to a client e-mail, interviewing a new client, negotiation, and limited drafting. The exercises are very focused and concise, and Medill provides checklists, forms, and questionnaires to guide inexperienced students. The problems are designed to be very flexible. Students can work alone or in groups, at home or in class, check each others’ work or submit to the professor for grading.
The teacher’s manual, which is nearly as long as the book itself, contains detailed information to allow professors to guide students through the activities and debrief afterwards. Each chapter begins with a clear outline of the problem, the legal rules, the skills implemented in the exercise, the student assignment, the practice norms covered, and optional professional responsibility concepts.
I am teaching two sections of Property beginning on January 17th, but I spent a few hours last night tearing apart my syllabus in order to make room for Medill’s exercises. I am planning to use nine of the ten (excluding only takings) and will supplement with two or three of my own exercises (title search, residential lease, and home purchase). I think that I will have the students complete the problems at home when we finish each section of material, then submit to me via TWEN or e-mail, and bring a print-out to class the next day. I will have students exchange papers within a small group and offer critiques. Then I will walk through the main issues and show a few (anonymous) examples to the class. We will work through the material at a slower pace if I devote this much time to the practical exercises, but I think that the students will have a deeper appreciation and understanding of the material, and hopefully will find Property to be as fascinating as I do!
Tuesday, October 18, 2011
I have referred a few times to the course that I'm teaching on the financial crisis this semester. Several property profs have contacted me off-line for ideas about materials to use in incorporating a perspective on the financial crisis in the property class itself. The problem with teaching the financial crisis is not that there isn't any material -- it is perhaps that there is too much material, much of it rich and detailed and difficult to adapt to a brief summary. Here are a few ideas on resources that you may be able to use.
If you are interested in the events from May-October 2008 (the failure of Bear Sterns, the nationalization of Fannie and Freddie, the failure of Lehman, and TARP), the best option is Frontline's 1-hour show "Inside the Meltdown." You can purchase the DVD from PBS, or watch the piece streaming on its site. There is additional material on the site, including a timeline and uncut interviews from key players.
For a more dramatic version of the same events, you could watch HBO's adaptation of Andrew Ross Sorkin's Too Big to Fail. The Frontline piece is much better.
If you are interested in the subprime aspects of the debacle, there are several options. I would recommend having students read a few chapters from Alyssa Katz's Our Lot: How Real Estate Came To Own Us (particularly chapters 3, 5, and the epilogue) in conjunction with an excerpt from Michael Lewis' The Big Short, or his piece in Portfolio, which is adapted from the Big Short. The website of the Financial Crisis Inquiry Commission also has a wealth of material, including a very good dissection of a 2006 Citigroup CDO filled with subprime mortgages originated by New Century. The FCIC's "Story of a Security" includes all of the original documentation and most of the material is intimidating, but the overview tells the story well. The graphics tab of the FCIC site also has some nice one-sheets near the end that help explain how CDOs work.
One final option, which again focuses on the subprime aspects of the financial crisis, is Episode 4 of Niall Ferguson's The Ascent of Money series on PBS. Again, you can stream the films online for free. This piece focuses on the historical evolution of the U.S. housing market since the Great Depression. It may work well for homework in a Property class because it is accessible and provides some useful historical perspective.
If anyone has other suggestions about materials, please share them in the comments. In particular, the focus of my class has been very American-centric. I would love to locate some accessible materials to help the students understand the sovereign debt crisis in Europe and other global aspects of the financial crisis.
Friday, August 19, 2011
This summer, as part of what turned out to be my ridiculously ambitious agenda, I enrolled in a 14-week online certificate program at Boston University in Genealogical Research. I have been involved in genealogy for nearly 20 years, but I’m entirely self-taught. So I thought this would be a good opportunity to learn research skills and methodologies from people at the top of the profession. It was a great course, and I learned a lot, but it ended up taking much more time than I anticipated. (Because, of course, I wanted to earn an A!)
I mention this course here because the work required me, again and again, to delve into the history of American real property law. In doing so, I wrote notes to add to my Property lectures on topics such as women’s evolving relationship with real property under the law, and the customs of various ethnic groups in conveying their real property to children (patrilineal or by shares). We also looked at topics that turned out to be about land use – early land development and division schemes, the development of ethnic neighborhoods, etc. So while I thought that this summer course would be a fun diversion, it turned out in many respects to be an enrichment course for my own work in property.
If you are interested in taking a look at property from a genealogist’s perspective, I would recommend E. Wade Hone’s Land & Property Research (Salt Lake City: Ancestry Incorporated, 1997). The book walks through the historical background on Spanish, British, French, and Mexican possession of portions of the modern United States, the methods of property ownership under those regimes, and the records created. Then it discusses the organization of state lands and federal lands, and the methods that the U.S. government has used to distribute land since the Revolution. This background is incredibly helpful, particularly to understanding the historical context of some of our older property cases. (For example, the railroad right of way abandonment cases.)
Last year, when we talked about deeds in class, I showed students a modern deed. I’m not going to turn my Property course into a History of Property course, but next year I will also show them a 19th century deed so they can see that the formal language really hasn’t changed all that much! (If you want a 19th century deed too, but don't have one lying around, just click the thumbnail image above and you can download the full size image.)
Wednesday, August 17, 2011
Last year, I taught Property for the first time. I used the Sprankling/Coletta casebook, which I found easy to teach and my students found easy to understand. I supplemented the casebook with materials and exercises drawn from my 10 years of real estate practice. When I received my evaluations at the end of the semester, the students’ refrain was that they appreciated my attempt to mix doctrine, theory, and real world application. My goal, which, based on their exam performance, I think I accomplished, was not to replace doctrine and theory with practice problems, but to use real world problems to illuminate the doctrine and help them see Property as I do – as an endlessly fascinating area of the law.
One weakness of my approach last year was that it was fairly haphazard. I came up with “brilliant” ideas of how to illustrate a particular principle a few days or the night before class. I pulled forms or example documents from my library or from the Internet, and then tried at the last minute to weave those examples in to my plans for class. As a result, I hadn’t had time to fully think about the best way to utilize those materials.
So one of my big projects this summer has been to organize and refine the exercises I used last year, and to add new exercises. Before I teach again in the Spring, I will have an electronic casebook supplement to distribute to my class, which will have exercises for every major subject we talk about in class. Some are simply real world hypos where the student is asked to advise a client on their legal options. (Last year, they had several opportunities to write a short memo about a problem and e-mail it to me. I made quick comments and handed them back.) Many of the hypos are based on real cases, so after working through the problem, students can be told how that case was actually resolved. Two exercises that I’m still working on, but I think are most promising, involve zoning and the sale of a home.
For the zoning exercise, students will be asked to represent a homeowner in a community with fairly restrictive zoning. The client’s home was built prior to the zoning and therefore grandfathered in. But sadly, there was a fire. The client obtains a building permit and then begins to rebuild the same house. The neighbors seek an injunction. The students are given the relevant sections of the zoning code and asked to advise their client on the best course of action. What can he do? What should he do?
For the home sale exercise, they will represent a seller of a home and be asked to read and comment on a contract prepared by the buyer on a standard form. Based on information provided to them about what their client wants to accomplish, they will be asked to assess risk and advise their client on a counteroffer.
I did two big exercises like this in class last year, one on the recording acts (which I discussed on the blog) and one involving residential leasing. Each of the big exercises take an entire class period. The hypos can be done outside of class. Although it represents a significant investment of time, I think its worth it.
When I’m finished with the supplement, I’ll be happy to share it with anyone who is interested in looking at it or using some of the exercises in class. The only catch is that you have to give me feedback to make it better!
Monday, June 6, 2011
It looks like all the "i's" have been dotted and all the "t's" have been crossed on this year's Hiring Report put together by Prawfsblawg. Special congratulations are in order for all the new PropertyProfs who have landed jobs. Welcome future Jedi Masters of the Property world:
Daniel Morales (Depaul)
Justin Pidot (Denver)
Ann Tweedy (Hamline)
Uma Outka (Kansas)
Bela August Walker (Roger Williams)
Eva Subotnik (St. John's)
Deepa Varadarajan (St. John's)
Marc-Tizoc Gonzalez (St. Thomas)
Shelley Cavalieri (Toledo)
Samuel Bray (UCLA)
Betsy Baker (Vermont)
Jill Fraley (Washington & Lee)
Please let me know if I've missed anyone.
Monday, April 25, 2011
In my property class, we spend a couple of hours wrestling with the "Tragedy of the Commons." In a typical year, I have my students read an excerpt from Hardin's seminal article, we go over the explanation in the Dukeminier textbook, and I pepper them with examples. Although these standard approaches all work OK, I've found that the best way to demonstrate the concept is with a simple video game designed for high-schoolers.
The game, called the Tragedy of the Bunnies, vividly illustrates how "The Tragedy" plays out and why private property rights can help. The concept is simple; You're a bunny merchant and you make your living by selling bunnies to children. Your goal is to sell an many bunnies as possible in two rounds. In both rounds, you score points by selling the bunnies, which you do by clicking on them.
The catch is that between rounds the bunnies get frisky and their population multiplies. If you sell them all in the first round then you'll have lots of money, but no bunnies to breed and sell in the second round. As this is the tragedy of the commons, you're also competing against two other bunny merchants controlled by the computer.
One final wrinkle; you can play the game in two versions. In the "public" version of the game, the bunnies are a common resource and they all get wiped in a matter of seconds. In the "private" version of the game, the bunnies are private property. You can exclude other competitors from taking your bunnies and conserve them for the second round.
I usually invite a student down to the front of the class to play both versions. They can then explain to the class why they overused the bunnies in the first game ("Because everyone else was grabbing bunnies, I had to as well!") and how private property then saved the day. I think it works pretty darn well. Although the game is simple (and clearly designed to promote private property) but it's a good springboard to discussing when and why the Tragedy plays out. Click on "Play the game" to see for yourself.
Monday, April 4, 2011
Over at Prawfsblawg, Dave Fagundes has a post outlining the debate over teaching the Rule Against Perpetuities. Although the post and the comments are a thoughtful contribution to this topic, I do take issue with one small bit of Fagundes' argument. He writes:
There are some plausible reasons to be skeptical that the RAP belongs on a modern property syllabus. First, many states have abolished the RAP by statute, so it’s not even law in many jurisdictions. Moreover, the RAP is complex enough that teaching it well takes, I’ve found, at least four full class-hours, and given that property is often hard enough to cover (at least if you have only four credits to do it), this time could be allocated to other issues that people may find more instinctively interesting or important.
The notion that the RAP takes four class hours to teach needs to be challenged - it sets up a false choice between not covering the rule at all or sinking an entire week into the abyss of medieval times. For example, here's a great post by Mary Sarah Bilder on how to teach the RAP in one hour. The easiest way to save time on the RAP is to give students problem sets to do as homework (as opposed to doing them in-class). The reading in the future interests section of most property textbooks is pretty light, so the additional work isn't much of a burden.
For my part, I think teaching the Rule Against Perperuities in first year property remains important. It conveys, like no other subject, that the law is actually quite difficult and takes a lot of work to master. I see too many students who think that being a lawyer resembles being a elementary school librarian - you just need to mosey through the shelves, find the relevant case, and present its clear rule to the client.
Thursday, March 24, 2011
Maybe, like me, when you teach your students about recording acts and title searches, you tell them the county officials they'll need to work with to complete a title search are helpful.
On the other hand, maybe not so much . . . .
From the Cleveland Plain-Dealer comes this account of an exchange between a Cuyahoga County Recorder's Office official (Patterson), and an attorney (Marburger) who is deposing him about the presence, or absence, of a photocopier in the office, under the watchful eye of defense counsel (Cavanagh).
Marburger: During your tenure in the computer department at the Recorder's office, has the Recorder's office had photocopying machines?
Marburger: Any photocopying machine?
Patterson: When you say "photocopying machine," what do you mean?
Marburger: Let me be -- let me make sure I understand your question. You don't have an understanding of what a photocopying machine is?
Patterson: No. I want to make sure that I answer your question correctly.
Cavanagh: Dave, I'll object to the tone of the question. You make it sound like it's unbelievable to you that he wouldn't know what the definition of a photocopy machine is.
Marburger: I didn't ask him to define it. I asked him if he had any.
Patterson: When you say "photocopying machine," what do you mean?
Marburger: Let me be clear. The term "photocopying machine" is so ambiguous that you can't picture in your mind what a photocopying machine is in an office setting?
Apparently he cannot. It continues . . . .
Cavanagh: There's different types of photocopiers, Dave.
Marburger: You're speaking instead of -- you're not under oath. This guy is.
Cavanagh: I understand that, but I understand what his objection is. You want him to answer the question, but I don't think it's fair.
Marburger: It's not fair?
Cavanagh: It's not a fair question. A photocopy machine can be a machine that uses photostatic technology, that uses xerographic technology, that uses scanning technology.
Marburger: I don't care what kind of technology it uses. Has your offices -- we don't have technocrats on the Ohio Supreme Court. We've got people like me, general guys --
I love that objection; apparently defendant's counsel objects to plaintiff's counsel's description of himself as a general guy. But there's more . . . .
Patterson: I understand that there are photocopying machines, and there are different types of them just like --
Marburger: Are there any in the Recorder's office?
Patterson: -- there are different cars. Some of them run under gas power, some of them under electric power, and I'm asking if you could help me out by explaining what you mean by "photocopying machines" --
Marburger: That's a great point.
Patterson: -- instead of trying to make me feel stupid.
Marburger: If you feel stupid, it's not because I'm making you feel that way.
At this point, if my 14 year-old were here, he'd be yelling something like 'pwnned!', which apparently means 'owned,' which in human apparently means 'that was a zinger.' But wait! Perhaps if plaintiff's counsel could simply re-phrase the question, we could find an answer that makes everyone happy . . . .
Marburger: Have you ever--do you have machines there where I can put in a paper document, push a button or two, and out will come copies of that paper document also on paper? Do you have such a machine?
Patterson: Yes, sir.
Marburger: What do you call that machine?
And good luck with that title search, students.
Then again, there are photocopiers, and then there are photocopiers, as we learned from The Wire:
Mark A. Edwards
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Monday, March 7, 2011
I have posted Too Big to Fail vs. Too Small to Notice: Addressing the Commercial Real Estate Debt Crisis on SSRN. (This is the bigger article that I teased earlier.)
I have directed this article to policymakers and scholars, but I hope that it may also be useful for those teaching Real Estate Transactions, to supplement textbooks by providing a current snapshot of the state of the commercial real estate industry.
Many thanks to Jim Durham of Dayton for taking time out of his vacation to read and comment on this piece!
Here's my abstract:
The commercial real estate industry has been devastated by the current economic crisis, losing 40% in value since the end of 2007. As a result, commercial real estate borrowers owe lenders $1 trillion more than their properties are worth. Although the federal government has been warned that the commercial real estate debt crisis may cause a double-dip recession, the government’s response thus far has been to allow the market to work itself out. This Article argues that this laissez faire response rests upon flawed assumptions about the structure of the commercial real estate industry. Compounding the problem, policymakers are incorrectly interpreting increased lending and transactions in the upper echelons of the market as a signal that their policies are working. Instead, the current approach has forced sales at distressed prices, numerous foreclosures, and, perhaps most importantly, significant small bank failures without any systemic benefits. Policymakers have seen these losses as an unfortunate but unavoidable cost of the recovery process, and dismissed these small actors as not “systemically important.” In fact, this Article argues that in the aggregate, small commercial real estate borrowers and small banks are vital to fueling job creation and economic recovery. By focusing primarily on the health of large financial institutions, borrowers, and properties without due consideration for the smaller players, the current policy may lengthen the economic crisis by placing further stress and uncertainty on some of the most vulnerable segments of the economy.
As always, comments are much appreciated!
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Thursday, February 24, 2011
A question has popped up that I don't know how to answer; What are the leading multi-volume real property law treatises?
Where do you property profs and practicioners turn when you need clarification on the law?
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Tuesday, January 18, 2011
Cause I gotta beauty for ya, right here.
The New York Times reports that real estate developers have made such a visually appealing $80 million alteration to the facade and entrance of 112 West 34th Street in Manhattan that they are candidates for a prestigious development award.
The problem: they are tenants, not owners of the building, and the 1963 lease that the then-owners and then-tenants signed (both current owners and tenants are assignees) provides that the tenants must get prior written approval from the owner before making structural changes worth more than $100,000. As a result, the owner wants the lease terminated and the tenants out. The lease isn't supposed to expire until 2077.
Why on earth would a landlord object to a tenant making -- at its own expense -- $80 million dollars worth of awarding-winning improvements to a property, you ask?
Because the lease provides that the annual rent for the property is $840,000 per year. This, for a 26-story building that sits across from Macy's. This, for a building the tenants lease out to office and retail tenants for many, many times that sum.
So are the owners being unfairly opportunistic in trying to terminate a lease so they can capture the building's increase in market value? Or are the tenants being hypocritical in arguing that a literal reading of the lease applies to the rent, but not the alterations clause? How will a court likely decide the issue and why, or is it more likely that a market solution will be found, and how?
Life doesn't throw perfect hypotheticals at us very often. Take it!
Mark A. Edwards
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Thursday, January 13, 2011
One more video you may want to use when you cover the right of publicity. Last year a congressional candidate named Rick Barber shot a campaign ad that got a lot of attention. He sat at a kitchen table with men dressed as Samuel Adams, Ben Franklin, and George Washington. He explained the situation in Washington (as he sees it) and the piece ends with a close-up of Washington dramatically intoning "Gather Your Armies." You can find the clip here.
I showed the commercial in class today in the context of the California common law right of publicity following White v. Samsung. We discussed whether Washington's right to publicity had been violated. It was an interesting discussion. One student suggested that the folks who own Samuel Adams beer would have a more significant claim (although in the piece Sam sits listening, rather than calling to arms.) Since many felt that Washington had been dead too long to deserve any protection, we also discussed whether the analysis would be different if a more recent president, such as JFK, were depicted. That led to a discussion of the Kennedy miniseries which will not be shown on the History Channel (because of behind-the-scenes pressure, rather than a right of publicity claim).
Oh yeah, we also discussed Paris Hilton and Snooki's respective paths to fame, and whether a Lockean approach to property rights (i.e. encouraging labor) should really be applied to them.
All in all, a fun and engaging class.
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