PropertyProf Blog

Advice to Law Journals: Part 20

now a suggestion from Danny Sokol over at antitrust and competition policy blog:

20 in evaluating an interdisciplinary work, check to see if any literature is cited from outside law reviews.  Does a law and economics piece cite work from economics journals?  Does a legal history work cite what you would expect would be the relevant literature from history?  I think this is a decent (and relatively easy) way of making a rough assessment of the quality of interdisciplinary work.  Of course, this test will likely yield more false positives (that is, more articles will be found good under this test than articles that are actually good) than false negatives.

Alfred Brophy
Comments are held for approval, so they will not appear immediately.

Responses to Penalver & Katyal's Property Outlaws

The Pennsylvania Law Review's PENNumbra has posted three responses to Eduardo Penalver & Sonia Katyal's Property Outlaws.  The responses are Order with Outlaws by Lee Anne Fennell, Property In-Laws, by Nicole Stelle Garnett, and Lessons from Outlaws, by Laura S. Underkuffler.

Fascinating stuff.

Ben Barros

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

Prescriptive Easement Beach Access Case From My Hometown

From the Boston Globe:

In a case that may send legal ripples across the South Shore, some Hingham homeowners have won the right to use a crescent-shaped sliver of beach, defeating property owners who erected a locked gate and tried to deny them access.

The three-year legal battle ignited a storm of controversy in the quiet Crow Point section of town, pitting neighbor against neighbor in a battle over who could use the rocky beach, which has spectacular views of the harbor and its islands.

The Dec. 12 ruling by Land Court Judge Alexander H. Sands III was in some ways a split decision. He ruled that the plaintiffs had no deeded rights to the beach. However, those who had used the beach for 20 years or more had established a right-of-way and could continue using it.

The ruling meant that seven families obtained an easement to the beach, while three families did not, including one family that had used the beach for 19 1/2 years. The easement continues with their houses when they are sold.

Ben Barros (Hingham High School '87)

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

Private Property v. Beach Access in Hawaii

Reader David Peterson pointed me in the direction of a series of news articles on an interesting beach access dispute in Hawaii.  From an overview article in the Star Bulletin:

Some beachgoers are upset that a gate was installed on a private road in Kailua that blocks access to Kailua Beach Park.

A "no beach access" sign was placed at the entrance of L'Orange Place when the gate was installed a month ago. . . .

Some mornings, Dianne Price would find used condoms on her mock orange bushes.

Some nights at 2 a.m., large groups would walk down her lane to build bonfires on Kailua Beach.

Those and other concerns led the residents of L'Orange Place to put up a locked gate blocking their private road. That was a month ago.

Some beachgoers are now complaining about the loss of convenient access.

"It seems, at best, unneighborly," said Ben Willkie, a Kainui Drive resident who had used the route at least once a week to head to the beach with his wife, Veronica, and 5-year-old son. . . .

"There are a lot of people alarmed by this," said Robert Moncrief, a resident since 1970. "I think this whole thing is a travesty. ... They're excluding all these people."

The Moncriefs said they fear more gates will be installed at other private side streets along Kalaheo Avenue, further blocking access to the beach.

"It's going to start this chain of reaction of exclusivity," he said.

City Council Chairwoman Barbara Marshall, who represents District 3 (Waimanalo-Kaneohe), said that while it is frustrating for beachgoers, the residents are within their rights.

"It's a private beach access owned by the adjacent homeowners," she said.

Homeowners who allow public access receive a tax break. L'Orange Place residents had opted to pay additional taxes when the gate was installed, she added.

There is another public access route about 200 yards away, near Kailuana Street.

The dispute is discussed in this op-ed, and in this follow-up article.  Some useful discussion of the issue can also be found at the Beach Access Hawaii website.  I'll defer substantive discussion to our resident Aloha Jurisprudence experts, Al Brophy and Carl Christensen.

Ben Barros

Photo from Wikipedia Commons

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

Moringiello on Estates in Virtual Property

Juliet Moringeillo (Widener University School of Law) has posted Towards a System of Estates in Virtual Property on SSRN.

Virtual worlds such as Second Life have received a lot of press in the United States recently. As individuals and businesses participate in these virtual worlds, questions arise regarding the application of existing laws to their virtual world transactions. Many questions have arisen regarding the property rights of participants in virtual worlds, and a Second Life member recently sued Linden Research, the company that developed Second Life, alleging that Second Life converted his virtual property. The questions regarding the legal nature of virtual world assets tend to mirror the questions regarding intangible rights generally, as courts have tended to struggle over whether these rights are property rights or contract rights. In this paper, I propose that the principle of numerus clausus be applied to virtual property, so that courts faced with disputes over such assets will have mandatory property forms to which to resort. Such an approach would limit the ability of vendors of such rights to customize them through their contracts, which are commonly embodied in electronically-presented standard forms.

Ben Barros

[Comments are held for approval, so there will be some delays in posting]

Property Section Events at AALS

The Property Section will have two panels at this year's AALS Conference in New York.

First, on Saturday, from 3:30 - 5:15 p.m., we will have a panel on the Biology of Property Law.  The Section business meeting will immediately follow this panel.  Second, on Sunday, from 9:00 a.m. to 10:45 a.m., we will hold a junior scholars works-in-progress workshop.

Also, don't miss the Property Section Breakfast on Saturday morning at 7:00 a.m.

More details on the panels are in the Section Newsletter.

Ben Barros

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

Property Rights in China

Over at Balkinization, Lauren Hilgers has a fascinating post on recent development in formal and informal property rights in China.

Ben Barros

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

Real Estate Transactions Panel at AALS

Here's the info on the Real Estate Transactions panel at AALS in New York.  I'll post the details of the Property Section panels tomorrow; if you can't wait, the info is in the Section Newsletter.

Title: Negotiating the Mega-Rebuilding Deal at the World Trade Center: Teaching Teachers to Teach Students

Time and Place: Friday, January 4, 2008; 10:30–12:15, New York Hilton, Regent Parlor, second floor

Speakers:

— Mr. Alex Garvin, President and CEO, Alex Garvin & Associates, Inc., and Adjunct Professor of Urban Planning, Yale University

— Meredith J. Kane, Esq., Paul, Weiss, Rifkind, Wharton & Garrison

— Janno Lieber, Esq., Senior Vice President, World Trade Center Properties, LLC

— Prof. Lance Liebman, Columbia Law School

— Martin D. Polevoy, Esq., DLA Piper

Synopsis:

The rebuilding of the World Trade Center site is one of the largest, most difficult, and most emotionally fraught transactions in American history. In addition to the usual stakeholders found in any complex public-private transaction (two states and one city, the developer, the investors, the architect, the contractors, the prospective tenants), the World Trade Center redevelopment introduces additional parties unique to this particular tragedy, including the victims of the attack and their families, first responders, neighborhood residents, and insurers.

This transaction would be fascinating to any observer. But to the law professor, this is a teaching opportunity and not just an interesting deal. Speakers representing various interests in the Ground Zero rebuilding project will address two principal questions. First, they will discuss specific issues that have arisen during the negotiation and documentation process, with emphasis on those that are unique to this particular project. Second, they will provide illustrations of the “teaching moments” they have observed throughout the process. Law professors who teach courses in any business subject will benefit by hearing experts demonstrate the opportunities this transaction presents for professors to help law students understand legal complexity.

Ben Barros

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

Advice to Law Journals, Part 19

O.K., so the year's almost out; that means, it's really past time to finish up this series on advice to law journals.  Back in June I announced it would be about 18 parts (more or less)--and I've added a few, but I'm now just a few of posts away from finishing.  And I intend on finishing sometime in January.

19 listen to faculty, but don't necessarily do everything they tell you.

Actually, this is good advice on a whole range of issues.  Remember James D. Gordon III's advice in his essay "How Not to Succeed in Law School," back in April 1991 in the Yale Law Journal?  It's one of the funniest articles I've ever read.  I talked about it in my Halloween post.  He said

Just to prove that at heart they are really gentle, fun-loving people, professors will occasionally do something a little bit zany, like wear a costume to class on Halloween. This makes the students laugh and cheer. Before you laugh and cheer, however, you should check your calendar. It is often difficult to tell whether a professor is wearing a costume or not.

Gordon then goes on to warn students about taking the faculty's advice:

If you want to know what kind of people law professors are, ask yourself this question: 'what kind of person would give up a jillion dollar salary to drive a rusted-out Ford Pinto and wear suits made of old horse blankets?'  Think about this very carefully before asking your professor's opinion on any subject.

(100 YLJ 1679, 1668 (1991)).  I've invoked this sage advice before.

Faculty, obviously, have a lot more experience in publishing than the students who run the law journal and they ought to have more expertise in the subjects under discussion, though faculty--like students--bring their biases and limitations to the review.  They may have irrational predispositions in favor (or against) a particular article.  Faculty have a lot of good ideas; they also may have some really bad ideas.  As far back as when I was a student (which is a long time ago now), I remember one professor telling us to take an article--which we did.  Upon closer inspection (that is, during the editing process), a bunch of us thought the article had, well, some serious problems.  Perhaps we would have taken the article without that professor's urging, though I suspect not.  We allowed someone else to substitute his judgment for ours.  I've seen this sort of thing happen a couple of times over the years--including more than once when students thought that pieces I was supporting were not worthy.  Of course, I think my judgment was right and theirs wrong--but it's always more than possible that I've made a mistake.

Endnote: The image, of a few soldiers from Company A listening to a guitar player, on January 18, 1968, during operation Yellowstone, is from the National Archives.  I went searching first for an image of someone talking and people not listening, then stumbled across this powerful photograph and thought a picture of people listening might be even better.  Our policy of only posting public domain images (or images of books that we're talking about) certainly limits us, but in some ways it causes me to find more interesting pictures.

Alfred L. Brophy
Comments are held for approval, so they will not appear immediately.

Nash on Property in Road Traffic Management

Jonathan Nash (Tulane) has posted Economic Efficiency Versus Public Choice: The Case of Property Rights in Road Traffic Management on SSRN.  Here's the abstract:

This Article argues, using the case of responses to traffic congestion, that public choice provides a greater explanation for the emergence of property rights than does economic efficiency. While the traditional solution to traffic congestion is to provide new roadway capacity, that is not an efficient response in that it does not lead to internalization of costs. Moreover, over time new capacity may serve to exacerbate congestion problems: New roadway capacity may induce additional travel that would not have taken place but for the new construction. By contrast, congestion charges, that is, imposing tolls designed to force drivers to internalize the costs that their driving imposes on other drivers offer an efficient way to address the problem of congestion. The continued popularity, despite this, of providing new roadway capacity turns upon public choice theory. New roadway construction tends to be very attractive for politicians as a way to satisfy both constituents generally, as well as interest groups that tend to be well-organized and powerful. In contrast, congestion charging regimes tend to be less popular across the board politically. At present, there appears currently to be something of a shift in position. Experimentation with congestion pricing programs is growing overseas including a notable program in London¿and a serious proposal for New York City's central business district. This Article thus argues that, while political economy tends to be a powerful force, it is possible for concerns of efficiency to override (or at least to curtail) that force when the inefficiencies of a response grounded in political economy become too large. At the same time, public choice continues to hold considerable sway: The shift toward congestion pricing may require not only pressing efficiency concerns, but also a shift in the political climate, as evidenced by backlash against New York City's proposal.

Ben Barros

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

The Reason for the Implied Warranty of Habitability?

Yesterday's NY Times has an interesting story on an apartment building in the Bronx that has fallen into deep disrepair.  Two issues that were particularly interesting to me were the difficulty that the city has had in dealing with the landlord, which is organized as an LLC, and the New York City program that was created to deal with this type of property.

Ben Barros

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

Marco on Just Compensation

Alan C. Marco (Vassar College, Dep't of Econ.) has posted Of Multipliers and Market Value: Just Compensation in a Post-Kelo World on SSRN.  Here's the abstract:

In the wake of the US Supreme Court decision in Kelo v. The City of New London, several state passed regulation increasing the statutory compensation for eminent domain takings. Some of the increases were based on multipliers of market value, yet there has been little attempt to provide an economic justification for the magnitude of the multipliers. In this note, I propose a mechanism to compensate property owners at the average willingness-to-pay rather than the marginal willingness-to-pay.

Ben Barros

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

McLaughlin on Conservation Easements

Nancy A. McLaughlin (Univ. of Utah) has posted Conservation Easements: Perpetuity and Beyond on SSRN.  Here's the abstract:

Perpetual conservation easements are intended to protect the particular land they encumber for the conservation purposes specified in the deed of conveyance in perpetuity, or at least until circumstances have changed so profoundly that continued protection of the land for those purposes is no longer feasible. To protect the public interest and investment in perpetual conservation easements, and, at the same time, permit adjustments to be made to respond to changing conditions, such easements should be treated like any other form of charitable asset acquired by a government or charitable entity for a particular charitable purpose -i.e., as subject to equitable charitable trust principles. This Article outlines the considerable support for applying charitable trust principles to perpetual conservation easements, including uniform laws, the Restatement of Property, federal tax law, and judicial activity on this issue to date. This Article cautions that perpetual land protection is not appropriate in all circumstances and recommends a more considered use of perpetual conservation easements as a land protection tool. This article also explores the possible use of a number of nonperpetual conservation easements to accomplish land protection goals.

Ben Barros

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

Somin on Jane Austen, Property Exams, and Literature

Ilya Somin over at volokh, a common source of great discussions here at propertyprof, is talking now about a final exam question based on Jane Austen's Pride and Prejudice.  He concludes with this statement, which warms the heart of this propertyprof:

I'm not going to argue that an understanding of property law is essential to your appreciation of Jane Austen and her work. But it can certainly help! Indeed, property law is probably second only to criminal law as a legal influence on great literature. Yet another reason to study Property (not that we need any more:))! You don't see too many great novels that feature legal issues in corporate law or civil procedure.

Since this is the seasons of exams, I'm inclined to say discuss!  Perhaps I'll start this off with the area I know best--antebellum United States literature.  Certainly a lot of property in there--from Stowe's obscure short story "Love versus Law," to Uncle Tom's Cabin, James Fenimore Cooper's Home as Found and his anti-rent trilogy, to one of my new favorites, Beverly Tucker's George Balcombe.  But I'm sure our friends about at the Conglomerate would want us to remember Theodore Dreiser's The Octopus....

Al Brophy
Comments are held for approval, so they will not appear immediately.

Who Owns The Declaration of Independence

Thanks to University of Hawaii Professor Carl Christensen for calling Abbey Goodnough's article " A Tug of War Over a Declaration of Independence" from today's New York Times to our attention.  The article is about the efforts of the state of Maine to recover one of very few surviving copies of the Declaration of Independence.  As near as anyone can tell, the copy seems to have been read by a minister in Wiscasset, Maine, then given by the minister to the town.  And somewhere along the line, the town's records were stored in Anna Plumstead's attic.

After Ms. Plumstead died in 1994, the document was sold at an estate auction. It changed hands several times, ending up with a private collector in Virginia who paid $475,000 for it in 2001. Now Maine is seeking to reclaim it, citing a state statute that says a public document remains public until explicitly relinquished by the government.

Now that sounds like the makings of a final exam question for property!

Endnote: I'd like to use the New York Times' image of the document, printed in 1776 in Salem.  Alas, I suspect that image is copyrighted.  (And here at propertyprof we're appropriately cautious about using other people's images.)  There's something unnerving about a copyright on the Declaration of Independence, it seems to me.  And this takes me back to a debate in Philadelphia my senior year in college about charging admission to Independence National Park in downtown Philly.  Fortunately, that proposal was defeated.  So instead I'm using an image of George Washington's personal copy of the Declaration, from our friends at the Library of Congress.

Alfred L. Brophy
Comments are held for approval, so they will not appear immediately.

Federal Court Imposes Large Inverse Condemnation Award

The case is Yamagiwa v. City of Half Moon Bay.    Ilya Somin has a post on the case at the VC.  Gideon Kanner also has two posts on the case, here and here.  In case you're wondering why this case was in federal court, it appears that the City removed it from state court.

Ben Barros

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

Advice to Law Journals, Part 18

18   publish your journal with open access on the web as well as in print. 

Just as journals should do everything possible to get content, they should do everything possible to facilitate distribution of that content.  This includes encouraging authors to post their articles on ssrn and bepress before publication.  I've heard some journals don't want to let authors post their articles on the web before the articles are published--or even after they're published.  To use a colloquial term, that's nuts.  Journals need to get scholarship into the hands (or before the eyes) of readers.

Endnote: The image of the Free Library of Philadelphia, from our friends at wikipedia, is supposed to illustrate making knowledge available in lots of ways at no cost.  Spent a lot of hours there when I was an undergraduate and some hours in more recent years when I was working in Philadelphia.  Not sure it's the best image for that--I wanted to use a picture of the new Alexandria Library, but couldn't find a decent one in the public domain.

Alfred L. Brophy
Comments are held for approval, so they will not appear immediately.

Third Circuit RLUIPA/Eminent Domain Case

A divided Third Circuit panel recently decided Lighthouse Institute for Evangelism v. City of Long Branch, a RLUIPA case with a redevelopment/eminent domain twist.  The New Jersey Eminent Domain Blog has a recap of the case.  An excerpt:

In its precedent setting 96-page opinion, the Third Circuit ruled 2-1 in favor of the City of Long Branch against Reverend Kevin Brown and the Lighthouse Institute for Evangelism in their attempt to establish a church at 162 Broadway within the Broadway Corridor Redevelopment area. However, the court remanded the case to Judge William Walls in the U.S. District Court for further findings on the plaintiff's challenge to the C-1 ordinance, the zoning for the subject property prior to the adoption of the redevelopment ordinance and plan, under RLUIPA's Equal Terms provision. The court was unanimous that the C-1 ordinance violated RLUIPA. This will entitle the plaintiffs to damages, counsel fees, and costs. . . .

The majority opinion, written by senior Judge Jane Roth, affirms the entry of summary judgment by Judge William Walls of the U.S. District Court. The dissent, filed by Judge Kent A. Jordan, disagreed with the majority regarding the redevelopment plan ordinance. Judge Jordan said that both ordinances failed to treat religious and non-religious assemblies on equal terms and, therefore, violate the very purpose for which the RLUIPA statute was enacted.

Judge Jordan noted that both ordinances, as interpreted by Long Branch,  prohibit religious use categorically. Judge Jordan reasoned that, if the majority reading of RLUIPA were correct, local governments could effectively render RLUIPA meaningless. Both the Becket Fund for Religious Liberty and the Department of Justice Civil Rights Division argued as amicus in support of Reverend Brown and the Lighthouse Mission. This decision is at odds with other decisions regarding RLUIPA in other circuit courts and may well end up before the United States Supreme Court.

The location of houses of worship, temples, mosques, and evangelical congregations is an issue that comes up frequently in New Jersey. Protracted battles in Rockaway Township ensued over the site selection by Dr. David Ireland, pastor of the 5000-member Christ Church. That church, a predominantly African American evangelical congregation, sought to move from its Montclair location to the former Agilent site in Rockaway. The relocation of the church was vigorously contested by a group of local residents. In Wayne, an Albanian mosque pursued litigation against the township of Wayne because the planning board delayed the plaintiff’s land use application.

Ben Barros

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

Van Dyke: Who Owns the Crown Lands of Hawaii

I'm looking forward to reading Jon Van Dyke's "Who Owns the Crown Lands of Hawaii."  Here's the description from the University of Hawaii press:

The 1846 Mahele (division) transformed the lands of Hawai‘i from a shared value into private property, but left many issues unresolved. Kauikeaouli (Kamehameha III) agreed to the Mahele, which divided all land among the mô‘î (king), the ali‘i (chiefs), and the maka‘âînana (commoners), in the hopes of keeping the lands in Hawaiian hands even if a foreign power claimed sovereignty over the Islands. The king’s share was further divided into Government and Crown Lands, the latter managed personally by the ruler until a court decision in 1864 and a statute passed in 1865 declared that they could no longer be bought or sold by the mô‘î and should be maintained intact for future monarchs. After the illegal overthrow of the monarchy in 1893, Government and Crown Lands were joined together, and after annexation in 1898 they were managed as a public trust by the United States. At statehood in 1959, all but 373,720 acres of Government and Crown Lands were transferred to the State of Hawai‘i. The legal status of Crown Lands remains controversial and misunderstood to this day.

Here's the link to additional information about the book.

Rose Cuison Villazor

PA Supreme Court Overrides Zoning Objections to Casinos

The Pennsylvania Supreme Court recently ordered Philadelphia to approve the zoning for a casino.  From the Philadelphia Inquirer:

The Pennsylvania Supreme Court went over Philadelphia's head yesterday and cleared the way for construction to begin on the $550 million SugarHouse casino in Fishtown and Northern Liberties.

Finding "deliberate inaction" in City Council's longstanding failure to vote on SugarHouse's zoning and land-use requests, the court took it upon itself to issue the go-ahead. . . .

The city "ultimately has no discretion to preclude gaming," the court's opinion stated. "We conclude that the undisputed documentation establishes the deliberate inaction by Council for the purposes of delay."

The court ordered that SugarHouse's site, approved last December by the Pennsylvania Gaming Control Board, be granted the requisite zoning as a commercial entertainment district.

It also declared that SugarHouse's development plan, approved in May by the city Planning Commission, be given final approval with no further input from Council. . . .

"This really does not deter us. This actually infuriates us," said Debbie King, vice president of the Northern Liberties Neighbors Association. "We are outraged by the courts and the city government officials that are trying to jam these casinos down our throats. Where are our rights?"

Ben Barros

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