PropertyProf Blog

Colburn on Public Lands and Ecology

Jamison E. Colburn (Western New England College School of Law) has posted Habitat and Humanity: Public Lands Law in the Age of Ecology on SSRN.  Here's the abstract:

Public lands law in this country has been gridlocked for more than a decade at the intersection of democracy and ecology. The public is still made to believe that the "conservation" versus "preservation" of our discrete, bounded parcels of public land is the central issue and that political success is defined by the capturing of a parcel of public land and its being put under the preferred legal regime. Experts and activists have largely seen past that definition of success and have adopted open-textured notions of ecosystem- and adaptive management on which everyone agrees in the abstract but not in application. Nevertheless, public confidence in administrative agencies is very much contingent upon confidence in professional expertise, even as agency governance grows increasingly incompatible with any truly ecosystemic approach to public lands. Indeed, while active management and ecological restoration are superior frames of reference for most public lands today, the only way these can even possibly frame the conservation agenda will be from the bottom up. Thus, I argue that public land management agencies are facing a dilemma if they hope to respond both to ecological reality and democratic accountability in our pluralist society. This dilemma is presented most immediately in their many legal duties to generate formal, comprehensive plans for the lands they administer by which they must protect biodiversity at the same time they serve a diverse public according to the terms of almost a dozen very different enabling statutes. The dilemma is that land health is increasingly incompatible with democracy, at least so long as our democracy views the administrative agency as the solution to its problems.

Ben Barros

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Lee on Teaching the Amistad

Brant T. Lee (University of Akron) has posted Teaching the Amistad on SSRN.  Here's the abstract:

This brief essay discusses the use of a slavery case, the Amistad, in teaching a first-year Property Law course. It argues that teaching about slavery in the first year of law school not only emphasizes the significance of race issues in American legal history, but also helps students to connect broader philosophical ideas to the rules at hand. The essay reviews the facts underlying the Amistad case, including reference to the movie about the case and to intellectual property issues that arose in the making of the movie. The essay then traces the deployment in the Amistad case of the standard property themes of possession and title. The essay closes with suggestions about how to connect the discussion of the Amistad to broader themes in property law.

Ben Barros

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US News 2008 Rankings: Quick Takes

As everyone from Dave Hoffman to Brian Leiter to, well, everyone is observing, the new “2008" U.S. News rankings and ratings of law schools have appeared on the magazine’s website a few days earlier than promised. Assuming that the reported results are final, not just preliminary or phony to compete with the many fallacious predictions about rankings posted on the Internet, here’s a look at the previous and current reputational assessments by academics and by lawyers and judges, broken down by tier.

Ratings by Faculty (Peer) and Lawyers and Judges in the 2007 and 2008 U.S. News Surveys
            Peer           Lawyers & Judges
        --------------           ----------------------    Effect size
Tier     N    Mean     SD        Mean     SD
                2007
  1    100    3.04    0.76        3.34    0.60
  3      36    2.06    0.18        2.58    0.31
  4      44    1.66    0.22        2.12    0.37
Total 180   2.51    0.85        2.89    0.73        0.48
                 2008
  1    104    2.99    0.73        3.36    0.63
  3      35    2.03    0.17        2.51    0.31
  4      45    1.64    0.23        2.02    0.35
Total 184   2.48    0.82        2.87    0.78        0.49

Ratings for Tier 1, classifying the top 50 schools as Tier 1 and other Tier-1 schools as Tier 2
            Peer           Lawyers & Judges
        --------------           ----------------------
Tier     N    Mean     SD        Mean     SD
                2007
  1    50    3.63    0.65        3.80    0.52
  2    50    2.46    0.24        2.88    0.20
                2008
Tier     N    Mean     SD        Mean     SD
  1    50    3.58    0.62        3.87    0.52
  2    54    2.44    0.22        2.89    0.24

I apologize for the misalignment of the tables--I've given up trying  to get the html coding right. Here they are in prettier, pdf format.  (Note to self--never again work on html tables.) 

My brief take on the tables:

Average 2007 and 2008 assessments are very similar. Lawyers and judges give more favorable ratings than academics. Assessments are clearly related to school tier, with average ratings of schools decreasing as tier increases. Variability of the ratings is greater for the more highly ranked schools.

I looked at differences between the 2007 and 2008 ratings of individual schools. The difference for average peer assessments was never greater than 0.2 on the 5-point scale.  A difference that large occurred for only two schools; in both cases it was a decrease. Tulane’s peer assessment changed from 3.2 to 3.0, and Golden Gate’s changed from 1.7 to 1.5. Forty-five schools had a decrease of 0.1, and 30 had an increase of the same size.

Assessments of lawyer and judges changed more.  Here is a list of schools with positive (2008 rating more favorable than 2007 rating) and negative changes of 0.3 or larger. 

After I get back from Gettysburg College, where I'll be talking about Reparations Pro and Con, I hope to have some more thoughts on the relationship between law review citations (which I use as a proxy of law review quality) and peer assessment scores.  Some of my previous thoughts on this topic are available here and some longitudinal data is here.

Al Brophy
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Garnett on the Burbs

Nicole Stelle Garnett (Notre Dame Law School) has posted Suburbs as Exit, Suburbs as Entrance on SSRN.  Here's the abstract:

Most academics assume that suburbanites are “exiters” who have abandoned central cities. The exit story is a foundational one in the fields of land use and local government law: Exiters' historical, social, and economic connections with “their” center cities are frequently used to justify both growth controls and regional government. The exit story, however, no longer captures the American suburban experience. For a majority of Americans, suburbs have become points of entrance to, not of exit from, “urban” life. Most suburbanites are “enterers” - people who were born in, or migrated directly to, suburbs and who have not spent time living in any central city. This Essay situates the underappreciated suburbs as entrance story within the current debates about growth management and regional governance. The exit paradigm provides a powerful normative justification for these policies. When it is stripped away, proponents are left with utilitarian arguments that are challenged by economists who argue that metropolitan fragmentation is efficiencyenhancing and that may ring hollow with suburban enterers. This Essay seeks to sound a cautionary note in the growth management and regional government debates. The exit story is an outdated rhetorical flourish that tends to oversimplify the case for - and camouflage the complexities of - these policies, especially the distributional and transitionalfairness concerns raised by restricting suburban growth.

Ben Barros

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Somin on Post-Kelo Reform

Ilya Somin (George Mason) has posted The Limits of Backlash: Assessing the Political Response to Kelo on SSRN.  Here's the abstract:

The Supreme Court's 2005 decision in Kelo v. City of New London, which upheld the power of government to condemn private property for purposes of “economic development,” generated a massive political backlash from across the political spectrum. Over forty states, as well as the federal government, have enacted or considered post-Kelo reform legislation to curb eminent domain. This Article is the first comprehensive analysis of the legislative response to Kelo. It challenges the validity of claims that the political backlash to Kelo will provide the same sort of protection for property owners as would a judicial ban on economic development takings. Most of the newly enacted post-Kelo reform laws are likely to be ineffective.

Part I describes the Kelo decision and then documents widespread anger that it generated. Both state-level and national surveys show overwhelming public opposition to “economic development” takings – opposition that cuts across racial, gender, political, and socioeconomic divisions. The backlash against Kelo is the largest against any Supreme Court decision in decades, and the legislative response is possibly the most extensive to any Supreme Court decision in history.

Part II analyzes the state and federal political response to Kelo. Twenty-eight state legislatures have enacted post-Kelo reform laws. However, seventeen of these are largely symbolic in nature, providing little or no protection for property owners. Several of the remainder either have significant loopholes or were enacted by states that had little or no history of condemning property for economic development. Only six states that had previously engaged in significant numbers of economic development and blight condemnations have enacted post-Kelo legislative reforms with any real teeth. The major exceptions to the pattern of ineffective post-Kelo reforms are the ten states that recently enacted reforms by popular referendum. Strikingly, citizen-initiated referendum initiatives have led to the passage of much stronger laws than those enacted through referenda initiated by state legislatures.

Finally, Part III advances a tentative explanation for the pattern of ineffective post-Kelo reform, in spite of overwhelming public sentiment in favor of such legislation. I contend that the ineffectiveness of post-Kelo reform is largely due to widespread political ignorance. The political ignorance hypothesis is imperfect. However, it accounts for three otherwise baffling anomalies: the sudden emergence of the backlash after Kelo, in spite of the fact that the decision made little change in existing precedent; the passage of ineffective laws by both state and federal legislators; and the fact that that post-Kelo laws enacted by popular referendum tended to be much stronger than those enacted by state legislatures.

Ben Barros

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Merrill and Smith's new casebook

Friday's mail brought Thomas Merrill and Henry E Smith's exciting new property casebook, Property: Principles and Policies, which Foundation has just published.  Pretty interesting organization of the course and it's sure to be a great resource.

From the book's website:

The book presents the subject through vivid cases, including most of those beloved by generations of property teachers. But in contrast to other casebooks, which present property as a hodge-podge of issues, it seeks to organize the material in an integrated way, starting with the idea of property as the right to exclude and systematically developing elaborations, exceptions, and counterfoils to this idea. Issues of contemporary relevance such as intellectual property and regulatory takings are given relatively pervasive and expansive treatment. The emphasis throughout is on fundamental principles and policy questions.

Here's a link to their table of contents.

Alfred L. Brophy

Times on Real Estate Transactions

Yesterday's NY Times has a great article on real estate transactions involving as-yet-unbuilt properties.  An excerpt:

IN New York’s construction boom of the last few years, many people have been buying apartments in buildings before they actually rise out of the ground. The buyers can’t see them, smell them or touch them. When they finally do, they are sometimes in for very big surprises, some of them infuriating.

Rooms are often smaller than advertised. The Viking stove isn’t there, but a stove described as being of “similar quality” is. The view is not at all what the buyers imagined.

Were they deceived?

Not necessarily. In many cases, neither they nor their lawyers read the offering plan carefully. Buyers often must hand over a $200 deposit for the thrill of getting three days to review the plan, sometimes 500 pages or more. It includes floor plans; tables that provide square footage, estimated taxes and common charges; and detailed descriptions of construction materials and apartment finishes. But it is also filled with technical and legal language that would be indecipherable to anyone other than a real estate lawyer.

Consider this piece of boilerplate: “The gross square footage of a unit is greater than the approximate square footage of a unit measured by using the legal definition of the unit. ... As is customary in New York City, these gross square footages exceed the usable floor area of each unit.”

That’s a long and strange way of saying that the apartments will probably be smaller than the buyers have been told. Brokers and lawyers say that virtually every new development’s offering plan includes this type of disclaimer, but finding it can often be a challenge.

Ben Barros

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Thomas Jefferson and Tadeuz Kosciuszko: Of Revolutions, Slavery, A Pension and A Will

A paper co-authored by one of our country's leading historians, UCLA professor Gary Nash, recently arrived in my in-box.  Because it talks about Revolutionary war hero Tadeuz Kosciuszko's pension and the will Jefferson wrote for him to use his pension to free enslaved people, I thought that I would post about.  It is a stunning paper.  Those interested in the intersection of property, wills, and slavery simply must read it.

The paper, “Thomas Jefferson and Tadeuz Kosciuszko: Slavery and Freedom, Honor and Betrayal”, is by Gary Nash and Graham Russell Hodges of Colgate University.  They delivered it to the McNeil Center for Early American Studies at the University of Pennsylvania on March 23.  Here is their abstract:

Thaddeus Kosciuszko’s return to the United States in 1797 initiates the narrative we present in this paper. Although crippled by deep wounds, Kosciuszko returned in triumph to reside in Philadelphia as a revolutionary hero. Americans applauded him for his leadership  in Poland’s vain uprising from 1792-1794. Americans cherished him in the hearts and memories that linked his glory during the American Revolution with their anxieties over the conservative policies of President John Adams. Kosciuszko had more than adulation in mind; he intended to collect some $12,000 plus interest in overdue pay from the American Revolution. The American Congress, aware of his enormous popular appeal, quickly voted to allot the back pay, which, with interest rose to over $15,000.

Kosciuszko remained in Philadelphia, where he befriended Vice President Thomas Jefferson. The pair talked of Poland, France, liberty and slavery long into the night on numerous occasions in the winter of 1797-1798. International anxieties promoted secret actions. Kosciuszko was worried about the newly passed Alien and Sedition Acts and wanted to travel to Paris to gather support for the revitalization of Poland. Jefferson was distraught over the possibility of war between the United States and France and asked Kosciuszko to act as a covert ambassador.

What to do with Kosciuszko’s pension? He gave Jefferson power of attorney; the two men drafted an extraordinary will that gave the American Patriot the power to use the cash to purchase, manumit, educate and give land and cattle to as many enslaved people as could be afforded. Jefferson even had the right to “buy” his own enslaved people and free them. It was a solemn pact between two noble men.

Our narrative then jumps two decades to the time of Kosciuszko’s death in late 1817 and Jefferson’s realization that his promise was now due.  We then discuss at length Jefferson’s decision to relinquish executorship of the estate, now worth in excess of $20,000. Nonetheless, we view Jefferson’s eventual decision to shed his oath of honor to Kosciuszko as a betrayal of a promise rich in potential to shift American attitudes about slavery, While Jefferson’s attitudes about black potentials for American citizenship have long been considered, we consider his inaction in this affair of honor deeply troubling for a man deemed America’s greatest symbol of liberty.

Close followers of wills law may be familiar with a later part of the story.  A suit over the probate of the will reached the Supreme Court in the 1830s,  Armstrong v. Lear, 33 U.S. 52 (1834). 

The will of May 5, 1798 is as follows:

I, Thaddeus Kosciuszko, being just on my departure from America, do hereby declare and direct that, should I make no other testamentary disposition of my property in the United States, I hereby authorize my friend Thomas Jefferson to employ the whole thereof in purchasing negroes from among his own or any others, and giving them liberty in my name; in giving them an education in trades, or otherwise, and in having them instructed for their new condition in the duties of morality, which may make them good neighbours, good fathers or moders, husbands or wives, and in their duties as citizens, teaching them to be defenders of their liberty and country, and of the good order of society, and in whatsoever may take them happy and useful. And I make the said Thomas Jefferson my executor of this.

T. KOSCIUSZKO. 5th day of May 1798

And a codicil of 1806 is as follows:

Know all men by these presents, that I, Thade Kosciuszko, formerly an officer of the United States of America in their revolutionary war against Great Britain, and a native of Lilourui, in Poland, at present residing at Paris, do hereby will and direct, that, at my decease, the sum of three thousand seven hundred and four dollars, currency of the aforesaid United States, shall of right be possessed by, and delivered over to the full enjoyment and use of Kosciuszko Armstrong, the son of general John Armstrong, minister plenipotentiary of the said States at Paris. For the security and performance whereof, I do hereby instruct and authorize my only lawful executor in the said United States, Thomas Jefferson, president thereof, to reserve in trust for that special purpose, of the funds he already holds belonging to me, the aforesaid sum of three thousand seven hundred and four dollars, in principal; to be paid by him, the said Thomas Jefferson, immediately after my decease, to him, the aforesaid Kosciuszko Armstrong; and in case of his death, to the use and benefit of his surviving brothers.

The image of Kosciuszko is from our friends at wikipedia.

Alfred L. Brophy
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Times on Blight and Foreclosures

From an article in today's NY Times:

In a sign of the spreading economic fallout of mortgage foreclosures, several suburbs of Cleveland, one of the nation’s hardest-hit cities, are spending millions of dollars to maintain vacant houses as they try to contain blight and real-estate panic.

In suburbs like this one, officials are installing alarms, fixing broken windows and mowing lawns at the vacant houses in hopes of preventing a snowball effect, in which surrounding property values suffer and worried neighbors move away. The officials are also working with financially troubled homeowners to renegotiate debts or, when eviction is unavoidable, to find apartments.

“It’s a tragedy and it’s just beginning,” Mayor Judith H. Rawson of Shaker Heights, a mostly affluent suburb, said of the evictions and vacancies, a problem fueled by a rapid increase in high-interest, subprime loans.

“All those shaky loans are out there, and the foreclosures are coming,” Ms. Rawson said. “Managing the damage to our communities will take years.”

Cuyahoga County, including Cleveland and 58 suburbs, has one of the country’s highest foreclosure rates, and officials say the worst is yet to come. In 1995, the county had 2,500 foreclosures; last year there were 15,000. Officials blame the weak economy and housing market and a rash of subprime loans for the high numbers, and the unusual prevalence of vacant houses.

Ben Barros

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Glaeser on Regional Coordination

Edward L. Glaeser (Harvard University) has posted Do Regional Economies Need Regional Coordination? on SSRN.  Here's the abstract:

Over the past century, America changed from a nation of distinct cities separated by farmland, to a place where employment and population density is far more continuous. For some purposes, it makes sense to think of the U.S. as consisting of a number of contiguous megaregions. Using the megaregion definitions of the Regional Plan Association, this paper documents the remarkable differences between these areas in productivity, housing prices, commute times and growth rates. Moreover, over the past 20 years, the fastest growing regions have not been those with the highest income or the most attractive climates. Flexible housing supply seems to be the key determinant of regional growth. Land use regulations seem to drive housing supply and determine which regions are growing. A more regional approach to housing supply might reduce the tendency of many localities to block new construction.

Ben Barros

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Wilkie v. Robbins

Over at the VC, Jonathan Adler has an interesting post on Wilkie v. Robbins, a potentially important property case that was argued before the Supreme Court yesterday.  An excerpt:

The facts of the case are straightforward: The federal Bureau of Land Management acquired an easement on a ranch, but neglected to record it. Robbins subsequently purchased the ranch and, due to the BLM's mistake, acquired the property sans easement. BLM officials demanded that he sign it over anyway, and when Robbins refused the government officials sought to give him a "hardball education" and retaliated by, among other things, harassing Robbins and his guests, filing trumped up charges against him. After this conduct continued for some time, Robbins had enough and sued the BLM agents involved for damages, and won.

The issue is whether the Fifth Amendment protects property owners against this type of retaliation.  The case has some takings aspects and some substantive due process aspects.  It will be interesting to see what the Court does with it.

UPDATE:  ScotusBlog also has a detailed post on the case.

UPDATE2:  Ilya Somin has some additional comments at the VC.

Ben Barros

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Stake on Estates and Future Interests

Jeff Stake (Indiana-Bloomington) has posted Summary of Key Rules in the Law of Estates and Future Interests on SSRN.  Here's the abstract:

The rules of law governing estates in land and future interests are boiled down as much as possible, but hopefully not more so.

As members of the PropertyProf listserv know, Jeff is one of the most knowledgeable people around on issues of future interests and estates in land.  Highly recommended, especially for students looking for secondary material on these issues.

Ben Barros

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Bell on Policing Neighborhood Boundaries

Jeannine Bell (Indiana University Bloomington) has posted Policing Neighborhood Boundaries: Violence, Racial Exclusion, and the Persistence of Segregation on SSRN.  Here's the abstract:

In this paper, I argue that the problem of violence directed at minorities in white neighborhoods is far broader than just encompassing violence directed at them at the point of their move to a neighborhood. My study of cases prosecuted under federal civil rights law has revealed numerous cases over the past twenty years in which acts of violence, threats and harassment have been specifically aimed at forcing out Black, Asian, Latino and Middle-Eastern residents who are not newcomers to the predominately white neighborhoods in which they live. I lump such violence, along with violence and harassment aimed at minorities who have recently moved to a white neighborhood, under the broad category anti-integrationist violence.

Ben Barros

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Endicott, Getzler, and Peel, Properties of Law

Properties of Law: Essays in Honour of Jim Harris (Oxford University Press, 2006), edited by Timothy Endicott, Joshua Getzler, and Edwin Peel has just crossed my desk.  Check it out; there's a wide range of essays in this festschrift, including ones on legal theory, precedent, and human rights, as well as property.  There are essays on property by Richard Epstein, Tony Honore, and Stephen Munzer, among many, many others.  I'm looking forward to this volume and hope to have a little more to say about it once I've finished it.  Nice size for a festschrift as well, eighteen authors in about 400 pages.

Al Brophy
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Jois on Affordable Housing and Civic Participation

Goutam U. Jois (Harvard Law School) has posted Affordable Housing and Civic Participation: Two Sides of the Same Coin on SSRN.  Here's the abstract:

Over the past several decades, America's inner cities have deteriorated socially, economically, and politically. Simultaneously, civic engagement, almost by any measure, has been on the decline: Americans vote less and volunteer less, go out to dinner with friends less and attend PTA meetings less.

In this Article, I argue that the two phenomena are linked, at least from the perspective of remedies. Specifically, by rebuilding our inner cities to promote mixed-use, mixed-income development, we can revitalize some of the most impoverished neighborhoods in our country while simultaneously engendering the mechanisms to foster increased civic engagement in our participatory democracy.

Ben Barros

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Homeowner Holdouts

BoingBoing has a cool post that includes some homeowner holdout photos - people who have refused to sell, and are now surrounded by parking lots.  Even better is this earlier post, which has two spectacular holdout photos.

UPDATE:  Following up on Tish's link in the comments, this post on Peering Into The Interior has some background on the China photo.

UPDATE2:  Tish has links to more on the holdout in China.

Ben Barros

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Urban Growth Boundaries

The NY Times has an interesting article on an urban growth boundary in Miami-Dade county.  An excerpt:

WHEN John Alger, a farmer, visits his property 30 miles southwest of Miami, he sees endless rows of corn. But his mind is on another kind of line.

Mr. Alger’s 1,260-acre farm is divided by the Urban Development Boundary. In 1983, county officials drew the boundary, a jagged line around Homestead and neighboring cities like Princeton and Florida City. Outside the line, development was limited to one dwelling per five-acre lot; the goal was to keep the land from being built on. Inside the boundary, which hugs Route 1 and Florida’s Turnpike, by contrast, construction was encouraged. Someday, as the density increased, there might be public transportation. . . .

On one side are farmers who would like to be able to maximize the value of their land, which means allowing the boundary to shift. Katie Edwards, executive director of the Dade County Farm Bureau, which represents Mr. Alger and other farmers, believes market forces should determine where development occurs in Miami-Dade County.

On the other side are environmentalists, who consider the boundary sacrosanct. Miami-Dade is nearly 40 miles wide at Homestead. To the east is Biscayne National Park, which includes much of Biscayne Bay, fed by water that runs above and below Miami-Dade. . . .

[T]o Mr. Alger, the drawing of the line was “a giant wealth transfer from those outside the boundary to those inside it.”

“If you’re on the right side of the U.D.B., you’ve got a lot of wealth,” Mr. Alger said.

These days, land outside the boundary is worth about $60,000 an acre, depending on soil and topography, said Rick Swentek, a veteran real estate broker in the area. Inside the line, it is worth significantly more. Mr. Alger and his family are offering one 30-acre plot, where they now grow corn, for just under $800,000 an acre, or around $24 million for the entire parcel.

Ben Barros

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Nagle on Moral Nuisances

John Copeland Nagle (Notre Dame Law School) has posted Moral Nuisances on SSRN. Here's the abstract:

Nuisance law provides a remedy for activities that substantially interfere with the use and enjoyment of one's land. Most nuisance cases today involve environmental pollution or unwanted noises, sights, or smells. Historically, though, nuisance law had a much broader application that regulated brothels, saloons, and gambling parlors - what I call moral nuisances.

I articulate a theory of moral nuisances that applies when (1) a substantial and legally cognizable interference with a landowner's use or enjoyment of his or her land is caused by (2) an action that is regarded as immoral by a reasonable person within the community (3) whose harm outweighs the benefit of the offending conduct, and (4) which is not protected by the law. A moral nuisance claims is even stronger when (5) the activity is not only immoral, but illegal as well. This article illustrates the application of this test by using the example of Mark v. Powers, a 1999 Oregon state court case which held that a state wildlife area that was used as a nude beach constituted a nuisance to the neighboring landowners.

This article also considers the harms that may be remedied by nuisance law. A nuisance case can be premised on the sight of an offensive activity, the inability to use one's property because of the embarrassment caused by the activity, reasonable fears, or any more general interferences – such as excessive noises or physical harassment – with the plaintiff's use of his or her property. The mere awareness of the activity, any improper temptation produced by the activity, and reduced property values are not sufficient to establish a nuisance.

Ben Barros

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Isaacs on Takings and Patents

Davida H. Isaacs (Northern Kentucky University) has posted Not All Property is Created Equal: Why Modern Courts Resist Applying the Takings Clause to Patents, and Why They are Right to Do So on SSRN.  Here's the abstract:

After a century of disregard, the question of whether patents are entitled to protection under the Fifth Amendment's Takings Clause has recently become a topic of scholarly and judicial debate. While one might have expected this issue to have been settled long before, it is only the recent burgeoning of patentholders' regulatory takings claims that has made this question one of pressing interest. Thus far scholarship on the issue has focused on whether or not patents have historically been characterized as "property". Meanwhile, last year's rejection by the Federal Circuit of a patentholder's right to assert a Takings Clause claim led to both external criticism as well as a vocal dissent by an esteemed member of that court.

Considering the issue from a new angle, this article demonstrates that determination of patents' status as "property" is a relevant but incomplete analysis of the constitutional question. That is because the Supreme Court has already concluded that some "property interests," particularly federal benefits, are entitled to Due Process Clause protection but are not entitled to Takings Clause protection. Patents are similar federal entitlements, offered only because they serve society, and thus they are not entitled to the full panoply of constitutional protections. Moreover, if patentholders could assert regulatory takings claims, the fear of costly claims could very well deter the government from making worthwhile policy changes. For instance, there is currently significant public concern about the high prices of pharmaceuticals resulting from drug companies' patent privileges. Refusing to grant patentholders the right to a Takings Clause remedy will prevent society from being stuck with earlier suboptimal patent policies. In sum, permitting patents to trigger takings claims is neither compelled by modern Supreme Court precedent nor wise as a policy matter.

Ben Barros

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Klein on Law of the Lakes

Christine A. Klein (University of Florida College of Law) has posted Law of the Lakes: From Protectionism to Sustainability on SSRN.  Here's the abstract:

There is something in the human spirit that responds with great passion and outrage when outsiders—however defined—look beyond their own back yards for a useable source of water. Ironically, that same outrage is conspicuously absent when nearby neighbors use water wastefully, as by excessive lawn watering during rainstorms, neglect of leaky faucets, or failure to modernize outdated bathroom fixtures that use large amounts of water simply to transport waste. Curiously, the outsider-neighbor distinction seems to be rooted in artificial human boundaries (such as state lines), rather than in meaningful ecological boundaries (such as watershed limits). In a well publicized Michigan dispute, for example, residents were outraged by a proposal of Nestlé Waters (a subsidiary of the Perrier Group of America) to construct groundwater withdrawal and water bottling facilities within the state. In that case, citizens responded with organized protests, blocking truckloads of bottled water by lying in the streets, and carrying banners with slogans, such as our water is not for sale. Presumably, the same response would not be triggered by the consumption of an equal amount of water by Michigan irrigators, or even by the incorporation of similar quantities of water into products sold outside the state as baby food or soft drinks.

Whatever its explanation, this protectionist response is powerful and widespread. The underlying energy can be harnessed for good, or allowed to express itself in ultimately unproductive ways. Residents of the Great Lakes basin, for example, have long feared that water users from other states will seek to acquire their lake water, exporting it to arid regions of the country. Basin residents have channeled that emotional energy into the development of the Law of the Lakes—a series of treaties, compacts, agreements, state and federal legislation, and common law designed to regulate and protect Great Lakes resources. To date, those documents have struck a precarious balance between the impulses of protectionism (regulating outsiders) and sustainability (regulating water use by basin residents, as well as by outsiders). Resolving the tension has taken on a new urgency, as the Great Lakes states and provinces recently agreed to develop a new and consistent series of state and provincial water laws.

This Article has a practical goal: to convince state lawmakers of the need to regulate in a comprehensive and evenhanded manner, avoiding short-sighted fixes or politically appealing shortcuts. To accomplish that goal, Part I focuses upon another region of the country—the Colorado River basin—where residents have also undertaken the task of managing a water system that includes two nations (the United States and Mexico) and numerous states. Learning from the successes and failures of the resultant Law of the River, this Article derives guiding principles for the emerging Law of the Lakes. Part II makes a crucial distinction between protectionism and true sustainability, examining the existing Lake documents for evidence of each. Part III offers a description of six essential components of any sustainable state water code, and provides references to a menu of draft legislative provisions available for adoption (with or without modification) by the Great Lakes states. This Article concludes with the hope that the Great Lakes states and provinces realize the tremendous opportunity now facing them, and take full advantage by developing a sustainable body of water law.

Ben Barros

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