Friday, August 31, 2007

Law Review Rankings of the Worst Sort

Robert Jarvis and Phyllis Coleman have unfortunately updated their rankings of law journals by author prominence.  The contributor scale on page three is just absurd.  Did you know that it is less prestigious to publish something by me, a law professor at a fourth-tier school, than to publish something by the mayor of your local town?  Or that publishing something by me is less than half as prestigious as publishing something by a law firm partner?  This means that Frank Snyder (a former Latham partner) had his prestige cut in half when he joined the Texas Wesleyan faculty.  I can't think of anything good that can come from this type of ranking other than reinforcement of the law reviews' focus on author resume over article quality.

Ben Barros

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August 31, 2007 | Permalink | Comments (4) | TrackBack (0)

Freyfogle: On Private Property: Finding Common Ground on the Ownership of Land

Freyfogle The proofs of Eric Freyfogle's On Private Property: Finding Common Ground on the Ownership of Land, forthcoming in November from Beacon, has just appeared in my mailbox.  Beacon Press provides the following description:

Private property poses a great dilemma in American culture. We revere the institution and are quick to protect private-property rights, yet we are troubled when landowners cause harm to their neighbors and communities, especially when new development fuels sprawl and degrades the environment. Recent Supreme Court cases and new state laws around eminent domain have generated great controversy, and yet many people are unsure where they stand on this issue.

In this wide-ranging inquiry, law professor Eric Freyfogle explores the inner workings of the familiar but poorly understood institution of private property. He identifies the three threats it currently faces: government mismanagement, the recently reinvigorated property rights movement, and conservation groups' efforts to buy tracts of land in order to protect them. He then offers a solution in the middle ground between the extreme sides of these debates.

In On Private Property, Freyfogle gives glimpses of landownership's surprising past, revealing its complex links to liberty and ultimately showing why private property rights must remain consistent with a community's overall good. In conclusion, Freyfogle constructs piece by piece a provocative new vision of landownership, at once respectful of private interests yet responsive to communal needs.

It's a great combination of history--with chapters like "The Lost Right to Roam"--as well as contemporary areas of much contention--with chapters on "When We Should Pay" and a concluding chapter on "The Responsible Landowner: A Bill of Rights."

The search for common ground is a noble purpose.  I think you will enjoy the book and I think it's destined for lots of class adoptions.  And I hope to have a few more thoughts about this important book later.

Alfred L. Brophy

August 31, 2007 in Books | Permalink | Comments (1) | TrackBack (0)

Thursday, August 30, 2007

Advice to Law Journals: Part 5

After reading the cartoon (yes, literally, its made up largely of a cartoon) essay on legal scholarship in the most recent Journal of Legal Education, I realize I need to continue with advice to law journals. At some point I'll talk about that interesting piece (William J. Aceves et al., "The Orthodoxy of Format: Some Sketches of Legal Scholarship,"56 JLE 636 (2006)); I expect it'll get some attention.  Most surprising piece of it all?  I didn't realize that there was a cartoon version of Hayek's Road to Serfdom, until I saw it cited in note 6!  Get this--it was published by GM in its "Thought Starter Series."  Now that's something I'd like to know more about; bet that's a great source for intellectual history of the U.S. around the time of the New Deal.  (OK--I know this is far afield from propertyprof, but in 1938 Time had  a riveting discussion of GM's marketing man, Henry Woodfin Grady, who developed the "Thought Starter Series.")

While I'm all in favor of expanding the boundaries of legal scholarship, I have to wonder whether cartoons will enhance the apparently declining fortunes of legal scholarship among judges.  I think there are great reasons for experimenting with new forms of scholarship--great reasons--but I'm not sure this move will reach more judges.  Anyway, here's installment five.  (And, come to think of it, maybe I need to tack on one additional entry at the end on cartoons....)

Publish book reviews.  Based on some data that citations guru John Doyle's been running, it looks like book reviews aren't as useful as articles in getting citations (not surprising here)--though I'll let John blog about these at some point.  But I think book reviews are great ways of getting readership, helping create discussion, and recruit some pieces that will get some attention.  We too infrequently talk to one another in the legal academic business and reviews are great ways of engaging people--of getting thoughtful commentary on an extended argument.  Clash of ideas--now there's something we need in the legal academy and may actually get.  And this, as another piece of advice to younger scholars, write book reviews.  They're a great way of getting involved into a debate without writing something that takes years.

Next installment will have some advice on things to avoid--or at least be cautious of....

Alfred L. Brophy
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August 30, 2007 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Teaching the Law of Personal Property

For quite some time now, I've been meaning to blog about Peter Wendel and Robert Popovich's article The State of the Property Course:  A Statistical Analysis, which appeared last year in the J. Legal Ed. (anyone know of a link to an electronic version - I couldn't find one).  There are a lot of interesting things to talk about from the article, but one thing that jumps out is the degree to which traditional personal property subjects like the law of finders and intervivos gifts are neglected, especially in four credit courses.  There is nothing inherently surprising about this -- my understanding is that personal property coverage has been declining for some time now, and something needs to give in a four credit class.  I have a hard time, though, imagining teaching property without a reasonable amount of personal property coverage because personal property presents possession issues incredibly well.  I've restructured the first part of my course to be all personal property -- capture, finding, bailments, and gifts.  I do them quickly, and since I'm teaching a four credit property course this year, not in great depth.  The cases are relatively easy and accessible for first-year students.  By the end, the students have a good sense of the malleability of the idea of possession, which makes teaching related real property subjects easier.  Indeed, the classic finding case Hannah v. Peel presents the odd idea of possessing real property very well.  Time is scarce, but keeping at least some personal property coverage seems to me to be a good idea.

Ben Barros

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August 30, 2007 in Teaching | Permalink | Comments (1) | TrackBack (0)

Klein and Zellmer on Property, Floods and Hurricanes

Christine A. Klein and Sandra B. Zellmer (University of Florida College of Law) have posted Mississippi River Stories: Lessons from a Century of Floods and Hurricanes on SSRN. Here's the abstract:

In the wake of Hurricane Katrina, the nation pondered how a relatively weak Category 3 storm could have destroyed an entire region. Few appreciated the extent to which a flawed federal water development policy transformed this apparently natural disaster into a “manmade” disaster; fewer still appreciated how the disaster was the predictable, and indeed predicted, sequel to almost a century of similar disasters. This article focuses upon three such stories: the Great Flood of 1927, the Midwest Flood of 1993, and Hurricanes Katrina and Rita of 2005. Taken together, the stories reveal important lessons, including the inadequacy of engineered flood control structures such as levees and dams; the perverse incentives created by the national flood insurance program; and the need to reform federal leadership over flood hazard control, particularly as delegated to the Army Corps of Engineers.

Setting forth what we call the theory of “double takes,” this article argues that improvident coastal and floodplain development is facilitated by a pair of taxpayer-funded subsidies that unintentionally exacerbate the flood dangers faced by low-lying communities. First, floodplain developers “take” federal dollars in the form of subsidized flood control structures that enable construction in otherwise unbuildable areas. As a consequence, many floodplain residents are lured into harm's way. Alternatively, would-be developers may “take” federal dollars in the form of compensation under the Fifth Amendment, paid by states and local communities that forbid risky construction in flood-prone areas. Such claims for compensation are fostered by the 1992 decision, Lucas v. South Carolina Coastal Council, in which the Supreme Court endorsed the view that coastal areas are “valueless” in their natural state - a glaring misconception laid bare by the post-Katrina awareness that wetlands and barrier islands instead perform an invaluable flood-taming function. We conclude with suggestions for reform of federal flood hazard policy, the national flood insurance program, and the regulatory takings doctrine.

Ben Barros

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August 30, 2007 in Land Use, Natural Resources, New Orleans, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Monday, August 27, 2007

Introducing Property

Today, I began my second year of law teaching and it was also the first day of my year-long Property class. It's amazing what just one year of teaching the course taught me about what I would do differently the next time around.

The first change I made focused on the particular substantive area of property law with which I wanted to begin the course. Last year, following Joe Singer's suggestion in his article, "Starting Property," 46 St. Louis U. L.J. 565 (2002) and Steve Friedland's comments at last year's AALS New Law Teacher's Workshop, I decided to start the course by teaching the right to exclude first before teaching the origins or acquisition of property.  The first case I assigned was Jacque v. Steenberg, followed by State v. Shack.  By the end of the first semester, I thought that beginning the course on the right to exclude definitely helped to hone in the principle that property rights are not absolute and the students understood that the rights of ownership and possession also come with certain obligations.

There were times in the middle of the fall semester last year, however, when I thought that it would have been helpful for the students to have learned first the difficulties of acquiring or establishing the right to possess property. So this year, I decided to begin the course with acquisition of property.  There are of course different cases one could use to start off this topic as discussed here and here.  I chose to assign the first case on Singer's casebook, which like D&K's, is Johnson v. M'Intosh.   

The second thing I changed is that I opted not to assign a case for the first day of class. Although I assigned Johnson v. M'Intosh as the first case, we will not discuss it until the second day of the course. For today's class, I assigned the excerpt of Erving Goffman's Asylums: Essays on the Social Situation of Mental Patients and Other Inmates in Perspectives on Property Law (Robert Ellickson, Carol Rose and Bruce Ackerman, 3rd Edition). I thought the essay was a great way to introduce basic property concepts of ownership rights (rather, lack of ownership and why one might want to have ownership over a thing) but also property theories (personhood, labor, first-in-time, distributive justice).

Thanks to Bethany Berger for giving me the idea!

The third thing I changed (and this one is not substantive at all) was that unlike last year, I did not bring a bunch of sticks to class.  To highlight that property constitutes a "bundle of rights," I handed out a stick to different students with various labels attached to the sticks (leasehold, easement, future interest, etc.). Although I got great feedback on my evaluations for doing this last fall, I thought that I'll experiment with doing different things on the first day.

What do you do on your first day of teaching property?

Rose Cuison Villazor [Comments are held for approval, so there will be some delay in posting.]

August 27, 2007 in Miscellaneous, Property Theory, Teaching | Permalink | Comments (5) | TrackBack (0)

Craig on the Public Trust

Robin Kundis Craig (Florida State) has posted A Comparative Guide to the Eastern Public Trust Doctrine: Classifications of States, Property Rights, and State Summaries on SSRN.  Here's the abstract:

Public trust doctrine literature to date has displayed two distinct tendencies, both of which limit comprehensive discussion of the American public trust doctrines. At one end of the spectrum, articles focused on broader legal principles tend to discuss the public trust doctrine, as though a single public trust doctrine pervaded the United States. At the other end, articles focus on how one particular state implements its particular state public trust doctrine. Few articles have grappled with the richness and complexity of public trust philosophies that more comparative approaches to the nation's public trust doctrines – emphasis on the plural – can reveal.

This Article seeks to begin to restore that sense of comparative complexity to the discussion of public trust principles. It focuses on the public trust doctrines of 31 eastern states – all of the states east of the Mississippi River, plus the five states – Minnesota, Iowa, Missouri, Arkansas, and Louisiana – bordering the western bank of the Mississippi River. Moreover, it includes in an Appendix state-by-state summaries of the public trust doctrines in each of the 31 eastern states examined.

These eastern states provide a particularly rich subset of states for public trust discussion purposes. At its most basic, a state's public trust doctrine outlines public and private rights in water by delineating five definitional components of those rights: (1) the waters subject to state/public ownership; (2) the line or lines dividing private from public title in those waters; (3) the waters subject to public use rights; (4) the line or lines in those waters that mark the limit of public use rights; and (5) the public uses that the doctrine will protect in the waters where the public has use rights. The history of the eastern states' public trust doctrines has led to multiple variations in how these states define and assemble these five components. In particular, far more often than is the case in the later-settled West, public trust use rights in the East intrude – and for practical purposes always have intruded – upon privately owned riparian and littoral property.

Ben Barros

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August 27, 2007 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Saturday, August 25, 2007

Advice to Law Journals Part 4

I spent a part of this morning welcoming the new editors of the Alabama Law Review.  I reminded them of the fun and learning experiences they'll have over the next four semesters.  And while some might liken this speech and student editing of journals more generally to chapter 2 of Tom Sawyer, I think law review will be a really positive intellectual experience for the students.  I also reminded them that the review is our school's ambassador to the rest of legal education and that our school will likely be judged by the quality of work that they produce.  (More thoughts on this here and here.)  As people who write on the history of the book say, if you want to know something about the minds of a people, read their literature.

That reminds me that I need to post some more on my continuing series (in 18 parts more or less) on advice to law journals.  This one is very closely related to the last piece of advice:

4.  Another way to get better work than typically walks itself in the door (or at least work by bigger names is: publish distinguished lectures.  Lots of law reviews in recent years have very successfully recruited essays (and sometimes longer articles) by distinguished senior faculty who have given talks at their law school.  We're all familiar with some of the grand lecture series and the work they've produced.  When I was in school everyone spoke about Herbert Wechsler's Holmes lecture, which resulted in "Toward Neutral Principles of Constitutional Law" in the Harvard Law Review in 1959.  And then there is Robert Bork's "Neutral Principles and Some First Amendment Problems," which appeared in the Indiana Law Journal in 1971--one of the most-cited articles of all-time.  Lots of times these lectures become books, like Grant Gilmore's Storrs' lectures that ended up as Ages of American Law.  (Ages hasn't worn all that well over time, but that's a separate matter and one to be taken up at another time and perhaps on another blog).  But lots of reviews have, I think, done a very nice job with getting thoughtful distinguished scholars (particularly in recent years youngish scholars who have done great work and are on the verge of becoming very distinguished) to give lectures and then publish work in their law journals. 

Particularly for schools that pick people who are about to become famous (or semi-famous), this shows some creativity and may be another sign of the thoughtfulness and intellectual culture of a school.  I'm not sure it shows a whole lot of creativity to invite Cass Sunstein or Richard Epstein or Lawrence Tribe or Richard Posner or any of a whole list of other huge figures to give a distinguished lecture.  But it might show tons of creativity and thoughtfulness to invite a youngish scholar who's already done great work.  But either way, if you secure a thoughtful piece, you're likely to have some really high quality work.  And I suspect that publishing distinguished lectures avoids some of the pitfalls associated with pre-placements of symposium pieces: the distinguished scholars will want to put their best feet forward for a public audience.

Alfred L. Brophy
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August 25, 2007 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Friday, August 24, 2007

Welcome to the Blogosphere -- Law of the Land

Patricia Salkin of Albany Law School, one of the most astute commentators on land use issues in the legal academy, has started a new blog called Law of the Land.  The first posts are outstanding.  Check it out!

Ben Barros

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August 24, 2007 in Land Use | Permalink | Comments (0) | TrackBack (1)

Thursday, August 23, 2007

Boonk and Lodder on Website Access

Martine Boonk (Vrije Universiteit Brussel) and Arno R. Lodder (Free University of Amsterdam) have posted Regulating Website Access for Automated Means Such as Search Bots and Agents: Property or Contract? on SSRN.  Here's the abstract:

This paper deals with legal issues concerning website access for software agents, notably the question how terms and conditions on a website can be presented in such a way that software agents and other automated programs exploring the internet can adhere to them. We discuss the technology behind requesting website content, and indicate for what reasons website owners regulate access to their web sites.

The core of the paper analyses the legal grounds for applying terms and conditions to websites: property rights and contractual duties. In our discussion we take into account the theory of browse-wrap licenses and case law from both Common Law and Civil Law countries. We also argue that under specific circumstances, the mere visiting of a website may constitute a contract.

The question as to whether what holds for human users also holds for automated means is given special attention. Finally, we introduce ways to more effectively regulate website access for automated means.

Ben Barros

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August 23, 2007 in Intellectual Property, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 21, 2007

Advice to Law Journals: Part 3

Continuing on the series on advice to law journals....

My third piece of advice to law reviews seeking to improve is to publish symposia.  At least for journals outside of the top fifty or so, I think this is very sound advice (and probably pretty good for all reviews).  You can likely solicit people who'll produce better pieces than you're likely to get if you rely on what walks in the door.  And you give good authors a reason to publish in your journal. 

Some journals have been very successful with this in recent years.  The Chicago-Kent Law Review springs to mind and Loyola LA has moved to an all-symposium format as well (though I don't think there's been enough time to know how well that has worked just yet).  The Fordham, DePaul, Albany, and Thomas Jefferson law reviews have used symposia very successfully as well in recent years, to name a few that come to mind quickly.  Fordham Law Review has been spectacularly successful in recent years and at some point I'd like to investigate what led to their success--I bet it's in part due to some excellent symposia.

There is a danger of committing to pieces sight-unseen.  There is little incentive for the authors to then turn in their best work.

Alfred L. Brophy
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August 21, 2007 in Law Schools | Permalink | Comments (1) | TrackBack (0)

Monday, August 20, 2007

Kent on Takings After Lingle

Michael B. Kent Jr. (John Marshall Law School -Atlanta) has posted Construing the Canon: An Exgesis of Regulatory Takings Jurisprudence after Lingle v. Chevron on SSRN.  Here's the abstract:

Regulatory takings has long been considered one of the more confused areas of constitutional analysis. Since the Supreme Court's opinion in Penn Central Transportation Company v. City of New York, the law of regulatory takings has been characterized by varying analytical tests, competing theories, seemingly results-oriented decision-making, and a conflation with the law of substantive due process. In 2005, however, the Court made substantial strides in bringing some clarity to this area with its decision in Lingle v. Chevron U.S.A., Inc. In that case, the Court unanimously rejected the “substantially advances” test, demonstrating a rare willingness to discard prior precedent as well as to divorce takings law from that of due process. Moreover, the Court unanimously reaffirmed five other decisions (Penn Central, Loretto, Nolan, Lucas, and Dolan) that now govern the regulatory takings inquiry.

This article argues that these five decisions, along with Lingle itself, should be considered uniquely authoritative (akin to a “canon” of sacred writings) with regard to takings analysis. By reading this “canon” exegetically – that is, by divining the intent of the Court through the language and context of the decisions viewed as if they were components of a single, unified text – it is possible to perceive a way out of the takings “muddle.” Viewing the cases in this manner, the “canon” presents a clearer picture of the overarching themes and characteristics of regulatory takings, as well as a greater coherence in the frameworks under which takings claims should be analyzed. This article seeks to elucidate those themes and characteristics, explain the analytical frameworks, and raise issues that continue to require the Court's attention.

Ben Barros

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August 20, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Anderson on the Right to Roam

Jerry L. Anderson (Drake University Law School) has posted Britain's Right to Roam: Redefining the Landowner's Bundle of Sticks on SSRN.  Here's the abstract:

Britain recently enacted a "right to roam" in the Countryside and Rights of Way Act (CRoW) 2000. At first glance, CRoW appears to be a dramatic curtailment of the landowner's traditional right to exclude; it opens up all private land classified as "mountain, moor, heath, or down" to the public for hiking and picnicking. Yet, when viewed in the light of history, CRoW may be seen as partially restoring to the commoner rights lost during the enclosure period, when the commons system ended. CRoW also represents a return to a functional rather than spatial form of land ownership, allowing more than one party to have rights in a particular piece of land. The new law highlights some important public values regarding freedom of access that have been all but forgotten in the United States. The law calls into question U.S. Supreme Court precedent that has enshrined the right to exclude as an "essential" stick in the bundle of property rights and serves as a powerful alternative to the Court's formalistic notion of property rights. Given the differences in its history, culture, and legal system, the United States is unlikely to follow Britain's lead in enacting a right to roam; nevertheless, the study of CRoW contains valuable lessons for Americans.

Ben Barros

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August 20, 2007 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Emerson on Sprawl

Chad D. Emerson (Faulkner University School of Law) has posted two articles on SSRN on sprawl.  The first is All Sprawled Out: How the Federal Regulatory System Has Driven Unsustainable Growth:

The United States faces a serious threat that grows more troublesome every year; one whose negative effects run the gamut from environmental concerns to social and fiscal harms

The threat — often called sprawl — is evidenced by the proliferation of unsustainable land development patterns throughout this country.

Significantly though, sprawl is not simply a problem of bad design or planning. These are, in fact, merely symptoms of a much more prolific cause. Indeed, the true driving force behind sprawl has been a series of federal laws and regulations that, over the last century, have facilitated development patterns in the United States that are neither fiscally sound nor physically sustainable.

This article examines three specific areas of federal regulation that have exacerbated sprawl: federal tax policy, federal transportation policy, and federal housing policy. It analyzes these laws and regulations within a historical context to determine why and how they came to be.

To accomplish this, the article surveys specific examples of federal laws within each of these categories that have served to promote the near unfettered growth of American sprawl. By doing so, the article identifies those areas of federal regulation that, if modified or repealed, can facilitate a move away from sprawl growth and toward a more sustainable land development strategy.

Ultimately, this article exposes the federal laws that have driven sprawl in this country — and, by doing so, have exacerbated the numerous negative impacts of sprawl on our society.

The second is Making Main Street Legal Again: The Smartcode Solution to Sprawl:

For those concerned with the sustainability of today's land development patterns, there looms an unfortunate yet eye-opening reality: presently, if a developer wants to develop a project similar to classic American communities such as Charleston, Savannah, Key West, or Alexandria, in most jurisdictions, doing so would be illegal under existing zoning codes. Similarly, if a developer sought to develop a neighborhood with a traditional corner store or a classic American main street where the shopkeeper lived about her shop, many existing zoning codes would legally prohibit such a result.

The stark reality is that, in most jurisdictions within the United States, traditional town and neighborhood planning techniques are illegal because many of today's conventional zoning codes either prevent their use expressly or by effect. And, even worse, this is not a recent phenomenon but rather the result of an outdated zoning scheme that dates back to the early 1900s. A zoning system that, as this article will show, has now outlived much of its original purpose and usefulness.

Fortunately, a growing group of land planners and attorneys have developed a comprehensive legal response to this unsustainable reality — a response whose leading purpose is to legalize the use traditional planning techniques in our regions, communities, neighborhoods, and streets. Known as the SmartCode and developed by leading town planner Andres Duany, this response is not simply an abstract theory or proposal, but rather an actual regulatory document that can be adopted by local jurisdictions to enable the legal use of traditional planning techniques. At its core, the SmartCode is “a fundamentally different vision of how cities should be coded” as it codifies many of the traditional planning techniques that today are advocated by the New Urbanism movement — techniques such as mixing uses, utilizing interconnected street networks, and designing compact, walkable, and environmentally-sustainable communities.

This article will analyze the format of the SmartCode and, since the SmartCode is a model code that must be legally customized for local jurisdictions, the article will further explain the legal steps that communities must take in order to implement the SmartCode as a zoning option. While doing so, the article will also examine how the strict Euclidean structure of today's conventional zoning codes has necessitated the creation of the SmartCode in order to allow communities to legally utilize traditional town and neighborhood planning techniques.

Ben Barros

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August 20, 2007 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, August 17, 2007

Adler on Compensation for Conservation

Over at the VC, Jonathan Adler has a post on his new article arguing that paying compensation for regulatory takings would enhance conservation efforts, rather than undermine them as is conventionally thought.  He will be posting on this issue over the next week.  This is a very important issue, and I look forward to his posts.

The article itself is up on SSRN.  Here's the abstract:

The conventional wisdom holds that requiring compensation for environmental land-use controls would severely limit environmental protection efforts. There are increasing reasons to question this assumption. Both economic theory and recent empirical research demonstrate that failing to compensate private landowners for the costs of environmental regulations discourages voluntary conservation efforts and can encourage the destruction of environmental resources. The lack of a compensation requirement also means that land-use regulation is “underpriced” as compared to other environmental protection measures for which government agencies must pay. This results in the “overconsumption” of land-use regulations relative to other environmental protection measures that could be more cost-effective at advancing conservation goals. While any specific compensation proposal would present implementation questions, there are reasons to believe that a compensation requirement could improve environmental conservation efforts.

Ben Barros

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August 17, 2007 in Land Use, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Driesen on Infrastructure Commons

David M. Driesen (Syracuse) has posted An Economic Dynamic Approach to the Infrastructure Commons on SSRN.  Here's the abstract:

This brief essay comments upon and extends Brett Frischman's idea of the infrastructure commons, i.e. that certain commons resources function as infrastructure. After suggesting some refinements of the infrastructure commons theory, this essay shows how an economic dynamic approach to law (see David M. Driesen, The Economic Dynamics of Environmental Law (MIT Press 2003) can help strengthen the case for proper management of the infrastructure commons, helping bolster the case for preserving the commons and identifying some of its limitations. The essay, like Professor Frischman's original article, applies infrastructure commons theory to both environmental and intellectual property resources.

Ben Barros

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August 17, 2007 in Intellectual Property, Natural Resources, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Puskas on Measure 37's Federal Law Exception

Rebecca L. Puskas (Boston College) has posted Measure 37's Federal Law Exception: A Critical Protection for Oregon's Federally-Approved Land Use Laws on SSRN. Here's the abstract:

Ballot Measure 37, a property rights initiative passed by Oregon voters in November 2004, requires Oregon governments to compensate landowners for any reduction in the value of real property due to land use regulation or else to waive the offending regulations. This Note addresses the scope of an important exception to Measure 37: the law does not apply "to the extent that the land use regulation is required to comply with federal law." Many federal environmental laws, some with significant land use implications, involve a partnership approach called cooperative federalism where federal agencies set broad goals and states are responsible for on-the-ground implementation. Measure 37's federal law exception thus raises the question of whether Oregon's state and local governments have a continuing obligation to enforce land use regulations administered under such cooperative frameworks because they are "required to comply with federal law." This Note answers that question in the affirmative. It surveys Measure 37's federal law exception in its textual, regulatory, and constitutional contexts and concludes that the most tenable in-terpretation is a broad one: Measure 37 does not apply to land use regulations in federally-approved plans and programs that represent Oregon's efforts to comply with federal law. This interpretation is re-inforced by a clarifying definition of "federal law”" in Ballot Measure 49, an initiative subject to a November 2007 special election vote.

Ben Barros

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August 17, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 15, 2007

YIMBY – Yes in Mickey’s Backyard?

For those of you getting ready for your property classes this semester, here’s an interesting story to bring up when you cover zoning law.

The city of Anaheim (CA), home to Disneyland, is embroiled in legal issues over the use of a 26-acre property located near property owned by Disney.  As reported by the Washington Post last week (here), the 26-acres area, similar to Disney's property, has been zoned for tourist development since 1994.  The Anaheim City Council, however, voted a few months ago to allow a developer to build 1,500 housing units, including 225 subsidized housing, on the property.  According to the NY Times (here), the site is a mile from Magic Kingdom, ½ mile from Disney’s California Adventure, and directly across an 88-acre area that is the potential site of a third Disney theme park.  The LA times article today on this story includes a map of the proposed housing development and possible new theme park.

As in all property cases, the story here involves property disputes among various parties.  Disney filed a lawsuit in February to prevent the project from going through and protect what it views as its property interests in keeping the area “an attractive place for tourists.”  Disney also has the support of a coalition of residents, Save Our Anaheim Resort.  If the initiative is approved by voters, it would give residents the right to vote on any new housing development in the area. 

To counteract this initiative, supporters of the housing development (backed by SunCal, the developer) are trying to get an initiative on the ballot that would give voters control over the establishment of a third theme park.  Then there are advocates for affordable housing – YIMBY (Yes in Mickey’s Backyard) -who argue that the housing development is necessary, particularly affordable housing.  The median home price in the area is $645,000 and rent for a one-bedroom apartment costs $1,400 a month.  Interestingly, if the latter initiative is placed on the ballot, there is the possibility of both initiatives being passed.  Both would give voters the ability to approve the use of the properties owned by Disney and the City (or SunCal if the contract for sale of the 26 acres goes through).

Rose Cuison Villazor

August 15, 2007 in Land Use, Teaching | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 14, 2007

Mary Bilder on Teaching Rule Against Perpetuities

In the spirit of propertyprof's effort to help with the teaching of property, I asked Mary Sarah Bilder (who is a non-blogger and is also, by the way, author of this terrific book), if she would quickly write up her outline for her one-hour class on the rule against perpetuities.  She uses Dukeminier.

I think it is useful to teach RAP as a way to explain that Anglo-American law has attempted to put some limits on dynastic wealth and to emphasize how words matter in legal drafting. Here is one way to teach the RAP in 60 minutes at a first-year property level. My apologies and thanks to the many secondary sources from which this approach has been drawn (including, in particular, the wonderfully useful Mark Reutlinger, Wills, Trusts, and Estates.)  This approach may not have every member of the class able to work out every RAP problem, but they will get the idea and get the type of basic problems that they might actually by mistake draft into a document. (It also will mean that people are a bit cautious before they blithely agree to write wills for friends and family in later life.)

The class has 5 parts

1. Big Picture
2. The Rule
3. How to Apply it
4. Patterns
5. Reform

1. Big Picture: Explain the Duke of Norfolk's Case: You can tie up your property through the lifetime of people you know and the minority of the next generation. Briefly discuss pros/cons.

2. Give Rule (Gray version): go over interests created, future interests to which the rule applies (you need to have explained these well in a prior class and have done an equally good job with the concept of vesting), what to do if an interest violates rule.

3. How to Apply it: Explain that it is a rule against remoteness of vesting; that the hard part to understand is the part about "or fail"; explain that what one is looking for are interests that might vest after the period (give a couple examples -- I often use the idea of a one-episode reality show -- some will make it; some won't but you'll know by the end vs. the soap opera); explain that one does this by searching for the validating life (or alternatively a nonvalidating life); explain that it will always be a likely suspect--someone who affects the contingency (b/c everyone else can die); explain that a good trick is to always try and kill off everyone alive at the time of the conveyance; explain to always beware vested remainders (b/c RAP doesn't apply to them and so they are valid!).

    I have my students do the following steps:

    1. Classify all interests

    2.  Which ones are subject to RAP?

    3.  ASK: When will the cont. rem., etc. vest? (-what event is necessary for it to vest?)

    4.  Is there a validating life--look for some connection between the necessary event and the person + 21 years OR prove it could vest after

    5.  If no validating life, then interest is bad--cross it out and relabel the interests

4. Patterns -- basically all the RAP problems that I think a first-year student needs to understand fall into one of three patterns:  (You should have a couple examples for each pattern and work over it in class.)

    1. The problem of remote vesting (these are the executory limitations problems with state charity-to-charity exceptions)

    2. Taker of the interest is the VL for herself -- these are the patterns where the taker is VL, group of takers are VL, people who affect the contingency are the VL, savings clauses

    3. Afterborn people problems -- these all involve the trick of the problem using a class word (child, spouse, widow, grandchild) and that person might be an afterborn: child at 25 and grandchild in will vs. deed are good problems.

5.  Reform: Explain state reforms (which all make a lot more sense if you have some grasp of the Rule) and then end with some discussion on the dynastic trust situation because lawyers can learn complicated ways in which to keep dynastic wealth together over generations but apparently can't learn the RAP

Al Brophy
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August 14, 2007 in Teaching | Permalink | Comments (0) | TrackBack (0)

Seidenfeld on Legislative Responses to Kelo

Mark Seidenfeld (Florida State) has posted In Search of Robin Hood: Suggested Legislative Responses to Kelo on SSRN.  Here's the abstract:

This article is a short essay that uses an economic analysis of the need for and potential abuses of eminent domain used to transfer property from one private entity to another. It adds to the current literature by suggesting that states can establish mechanisms for evaluating and compensating current landowners for the idiosyncratic value they place on their property, and can establish administrative procedures and judicial review essentially to require local governments to auction the opportunity to obtain the property to the private entity that will provide the greatest benefit to the jurisdiction.

Ben Barros

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August 14, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)