PropertyProf Blog

Happy Thanksgiving!

Happy Thanksgiving everyone.  A few years ago, I blogged about my conservative, traditional approach to Thanksgiving.  I have to confess that, for various family reasons, we are going to a restaurant this year.  I may very well get the prime rib.

Ben Barros

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How to Read a Legal Opinion . . . .

Professor Orin Kerr has published a nice article that is certainly helpful for first year, first semester law students but that also might be very helpful for disappointed students who are returning for their second semester of their first year.  The article, "How to Read a Legal Opinion:  A Guide for New Law Students" is very straightforward and easy to digest.  I teach property as a first semester, first year course and have assigned the article as required reading.  Even if you do not assign  it to your class as a whole, you should consider offering it to individual students who have not performed as well as they would have liked and are now coming to you in search of answers for how to do better moving forward.

Folks have asked where this article is posted.  You can locate it at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1160925

Carol N. Brown

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Penn Central Transportation Company v. New York, Noteworthy Event

Those of us who teach Penn Central Trans., a seminal landmark preservation case, noted the passing last month of Dorothy Miner.  Ms. Miner was counsel to the New York City Landmarks Preservation Commission and played a critical role in litigating the Penn Central case.  A NY Times article discussing her important contributions entitled "Dorothy Miner, 72, Legal Innovator, Dies" can be found at http://www.nytimes.com/2008/10/23/nyregion/23miner.html?emc=eta1 .

I always like to share these types of articles with my students to help make the cases more relevant and to, at times, give insight into the personal sacrifices that are often behind some of our most compelling and enduring legal decisions.  Also, I find that one way to encourage students to embrace the materials is to ask them to be aware of interesting property / land use / real estate stories in the news and to forward them to me.  If a student sends me something interesting, I will post it on Blackboard or maybe even hand out hard copies of the story in class and take time to discuss the story.  This article was actually forwarded to me by a student I taught last year in the first year property course.  It was very affirming that, even a year later, she is moved by these types of property stories.

Carol N. Brown

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Ziegler on Sustainable Metropolitan Development

Edward H. Ziegler (Denver) sent along his most recent paper, The Case for Megapolitan Growth Management in the 21st Century:  Regional Urban Planning and Sustainable Development in the United States (Download ziegler_megapolitan.pdf).  Here's the abstract:

This article provides an analysis of urban planning issues in the United States related to automobile-dependent regional sprawl and discusses the need for a metropolitan sustainable development governing framework for growth management in the twenty-first century. The paper discusses how unsustainable regional sprawl is now legally required throughout most  metropolitan areas of the United States as a result of local zoning, growth management, and parking programs. The paper examines the potential benefits of creating a metropolitan governing framework to identify and regulate “growth areas” in a region and how linking these areas to regional transit planning is necessary to achieve the development of higher-density, mixed use, and intensive urban core job/housing areas where people could live, work, shop, and play without the use of the automobile. The paper further discusses some related lessons from Europe and discusses potential legal and political issues and institutional arrangements related to creating this type of regional sustainable development framework for urban planning in the United States.

Ben Barros

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Tate on Fideicommissa and the Theodosian Code

Don't know what Fideicommissa or the Theodosian Code?  Read on!  Joshua C. Tate (SMU) has posted Codification of Late Roman Inheritance Law: Fideicommissa and the Theodosian Code on SSRN.  Here's the abstract:

It has long been known that most of the private law content of the Theodosian Code has not been preserved independently of the Lex Romana Visigothorum, or Breviary of Alaric. Certain constitutions, not contained in the Breviary but dating to the period covered by the Theodosian Code, have survived in the Code of Justinian. There has been debate, however, as to whether all of these constitutions were contained in the Theodosian Code.

This Article discusses this problem with respect to a particular topic: fideicommissa. The Article considers whether a particular constitution, CJ 6.37.21, might have been included in the Theodosian Code either as part of a general rubric concerning inheritance or as part of a separate rubric on fideicommissa, and concludes by suggesting what the constitution might have looked like had it been included under a separate heading.

Ben Barros

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Good Facts for a Nuisance Question

If you are looking for really compelling facts for a nuisance law question, there was an interesting story in the NY Times this summer entitled, "An Old Sound in Harlem Draws New Neighbors' Ire."  I have attempted to attach the link.  http://www.nytimes.com/2008/07/06/nyregion/06drummers.html?emc=eta1

Carol N. Brown

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Marcilynn Burke -- Recently Tenured at Houston

Please join me in congratulating Marcilynn Burke who received a unanimous vote in favor of tenure on Friday, November 21, 2008 from her colleagues at the University of Houston Law Center.  This is a wonderful accomplishment and well-deserved.

Carol N. Brown

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"House" the television medical drama and race specific drugs

Did anyone see the recent episode of the television medical drama, House, in which the black doctor on Dr. House's team assigned a high blood pressure medicine to an older black male patient after telling the patient something along the lines that the drug works really well on "us" meaning blacks?  The patient was skeptical and refused to take the drug.  He made a new appointment, this time to see Dr. House who, after chastising the patient essentially for being stupid, prescribed him the same drug.  Of course, anyone familiar with the show would not be surprised to know that Dr. House, in order to get the patient to fill the prescription, misrepresented what he was prescribing and told the patient that he was prescribing the same medicine that he would give to his white patients when, in fact, he wrote the prescription for the same drug the black doctor had prescribed.  The unsuspecting patient went away happy as a lark.

This episode caught my attention because of Dorothy Roberts' work on race-specific pharmaceuticals, specifically BiDil, which is advertised as a drug designed to treat heart failure in blacks.  It was really interesting to see the concept of race specific medicine presented on prime time.  There was never any discussion amongst the characters about whether there is any real genetic basis for targeting drugs to patients based on race.  I am interested in how IP is driving this new demand / trend?

Carol N. Brown

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AALS Real Estate Transactions Section -- Field Trip

The Naval Training Center in San Diego closed in 1995.  The city redeveloped this prime location on San Diego Bay as Liberty Station.  The development "restores waterfront access to the public for the first time in 80 years, creates new parks, and establishes creative-arts facilities."

Who would not welcome the opportunity to tour such a landmark public-private real estate project?  The AALS Real Estate Transactions Section invites you to join us on our Liberty Station field trip as we tour this innovative and vibrant development.  The field trip will take place on Friday, January 9, 2009.  For details, including meeting times and locations, and to reserve one of the limited spaces still available, please contact Lloyd T. (Tom) Wilson, Jr., Section Chair-Elect, at [email protected].

The AALS Real Estate Transactions Section prides itself on creating new and exciting experiences through its annual field trips.  These trips are also planned around the important concepts of building comradery and informal networking opportunities.  Please help us continue our tradition.

I look forward to seeing you all in San Diego!

Carol N. Brown, Section Treasurer

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Guest Blogger Carol Brown

I'm delighted that Carol Brown (UNC) will be joining us as a guest blogger.  Carol, among other things, is Chair-Elect of the AALS Property Section.  Welcome, Carol!

Ben Barros

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Fennell on Adjusting Alienability

Lee Anne Fennell (Chicago) has posted Adjusting Alienability on SSRN.  Here's the abstract:

In recent years, the right to exclude has dominated property theory, relegating alienability - another of the standard incidents of ownership - to the scholarly shadows. Law and economics has also long neglected alienability; despite the inclusion of inalienability rules in Guido Calabresi and Douglas Melamed's celebrated 1972 Harvard Law Review article, alienability restrictions have entered economic discussions mostly as anomalies, and usually in the company of an entitlement whose suitability for market transfer is hotly contested. In this paper, I explore inalienability rules as tools for achieving efficiency (or other ends) when applied to resources that society generally views as appropriate objects of market transactions. Specifically, I focus on inalienability's capacity to alter upstream decisions by would-be resellers about whether to acquire an entitlement in the first place. By influencing these acquisition decisions, inalienability rules can buttress or substitute for other adjustments to the property bundle in addressing resource dilemmas. Of particular interest is the possibility that limits on alienability could sidestep the holdout problems that have often spurred resort to liability rules, and could do so without interfering as profoundly with the owner's autonomy interests. While alienability limits carry well-known disadvantages, they might be structured in ways that would reduce those drawbacks. Recognizing the full potential of alienability limits in addressing resource dilemmas requires applying the same level of creativity to devising inalienability rules as has previously been applied to the design of liability rules.

I've heard Lee present this paper before, and it is excellent.  A very important contribution to property theory.

Ben Barros

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Montana S. Ct. Resolves Mitchell Slough Dispute

The Montana Supreme Court resolved a long-running water rights dispute, which focused on whether the Mitchell Slough was a natural watercourse:

In a case with statewide implications, the Montana Supreme Court ruled Monday that Mitchell Slough is open to recreation under the state's stream access law.

The court said the 16-mile-long slough roughly follows the historical course of a waterway mapped 130 years ago, and therefore is subject to public access and required permitting, as are other natural waterways.

The 54-page decision overturned two earlier rulings by state district courts that found the slough was not a “natural, perennial-flowing stream. . . .

Since nearly every river and stream in Montana has been affected in some manner by man, the high court concluded: “The District Court's dictionary-based definition, which essentially requires a pristine river unaffected by humans in order to be deemed natural, results in an absurdity: For many Montana waters, the SAL would prohibit the very access it was enacted to provide.”

The Supreme Court also overturned the lower court's conclusion that the water captured by the slough in return flows from irrigation was “artificial” and “not natural,” saying that many Montana streams carry discharged irrigation flows.

The court also disputed landowners' claims the slough was a “man-made water conveyance system” that exists only because of man's manipulations.

“The claim that man has made the Mitchell Slough is a bold one, indeed,” the court's decision reads.

The court did offer a caveat on the issue of public access.

The slough runs through private property and the public only has the right to recreate under the terms of the state streamside access law, which allows access on the water and up to the ordinary high-water mark on the slough's bank, the court said.

Ben Barros

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Malloy on Inclusive Design

Robin Paul Malloy (Syracuse) has posted Inclusion by Design: Accessible Housing and the Mobility Impaired on SSRN.  Here's the abstract:

In the midst of pervasive national efforts at improving accessibility to public places for people with disabilities, there is no national design standard for making single-family residential housing accessible to the mobility impaired. As a consequence, the mobility impaired often find that they are unable to safely and easily visit the homes of family, friends, neighbors, and colleagues because their housing is designed with exclusionary and unsafe features - features that would not be permitted if the property were a public place, a place of public accommodation, or publicly funded housing.

This article questions the difference in inclusive design requirements as between public places and private homes. In so doing, it suggests that the difference rests upon two fundamental misunderstandings. The first is based on a failure to appreciate the public nature of private housing, and the second involves misperceptions concerning the ability (inability) of individuals to bargain for socially optimal outcomes in the market for private residential homes. In response to these conclusions the article supports a national inclusive design standard for all new single-family residential housing.

In advancing the argument for a national standard of inclusive design in single-family residential housing, the article proceeds in several steps. First, it provides a brief introduction to the current law on physical accessibility to property. Second, it explains two competing standards of inclusion for residential housing design; Universal Design and Visitability. Third, it provides information on the scope of the problem by exploring the demographics of mobility impairment. Fourth, it addresses the quasi-public character of private housing as part of our national housing stock. Fifth, it discusses local and national mechanisms that can be used to increase the national stock of housing with inclusive design features. And sixth, it addresses the tension between improving housing accessibility and maintaining its affordability.

Ben Barros

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Property Section Newsletter/AALS Section Panels

Thanks to Kali Murray, the Secretary of the Property Section, this year's Property Section Newsletter is now available:  Download property_newsletter1_nov1.pdf.  Among other things, the Newsletter highlights the Section's two panels at the AALS conference in San Diego:

First, the Section is sponsoring an extended session titled Hernando de Soto and Property in a Market Economy.  Speakers include:  Gregory S. Alexander, Cornell Law School; Nestor Davidson, University of Colorado School of Law; Rashmi Dyal-Chand, Northeastern University School of Law; Nicole Stelle Garnett, Notre Dame Law School; Larissa Katz, Queen’s University, Ontario; Daniel B. Kelly, Harvard Law School; Eduardo M. Peñalver, Cornell Law School; Carol Rose, University of Arizona Rogers College of Law; Ezra Rosser, American University Washington College of Law.  Here's the panel description:

Hernando de Soto is one of the world’s leading public intellectuals. His books The Mystery of Capital and The Other Path have been tremendously influential. He has been included on Time’s list of the 100 most influential people in the world, and has received praise from politicians from across the political spectrum. His work also has been controversial, and some of his arguments have received sustained criticism.

One of de Soto’s core ideas is that the institution of private property is necessary for the proper functioning of a market economy. Many property scholars closely follow de Soto’s work, but de Soto’s ideas have been strangely neglected in property scholarship within the legal academy. His work has been widely discussed in the context of property in developing countries, but has not had the same impact on the property issues that arise in mature market economies like the United States.

This program seeks to remedy this neglect. It brings together a diverse group of scholars to apply de Soto’s work to a wide range of contemporary issues in property law and theory.

The Property Section business meeting will immediately follow the Hernando de Soto panel.

Second, as we did last year, the Section is sponsoring a Junior Scholars Works-in-Progress Panel.  Two papers will be presented: Strategic Spillovers: Using Externalities to Extract Payments by Daniel Kelly and An Efficient Breach of the Numerus Clausus by Leah Theriault.  Congratulations to Dan and Leah, whose papers were selected from a very strong group of submissions!

Ben Barros

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Korngold on the Mortgage Crisis

Gerald Korngold (New York Law School) has posted Legal and Policy Choices in the Aftermath of the Subprime and Mortgage Financing Crisis on SSRN.  Here's the abstract:

This essay, delivered at a symposium at the University of South Carolina in October 2008 and forthcoming in South Carolina Law Review, sets out initial thoughts to the legal and policy choices that decision makers must address in the aftermath of the subprime crisis that has since triggered a global financing crunch. After tracing a narrative of how subprime lending grew into a mortage financing crisis and then a broader financial dislocation, the essay addresses two issues. First, while it is commonly stated that increased regulation will be required in secondary mortgage markets going forward, the essay explores competing policy considerations that legislators and regulators must balance in developing effective regulation and not overregulation. These policy issues include: the benefits of the secondary mortgage; the globalization of capital; prevention of fraud and predatory lending; personal responsibility vs. paternalism; market discipline vs. regulation; ending racial discrimination in lending; the role of intermediation in creating the crisis; the current state of the American dream of home ownership; and addressing risk shifting vehicles.

The second part of the essay examines how the development of the secondary market has changed mortgage law in the various states. It discusses the benefits, and costs, of the nationalization of real estate documents and terms brought by Fannie Mae and Freddie Mac and speculates on how conservatorship of these institutions may affect this trend. The essay also looks at modernization of state mortgage law in light of the secondary market, through vehicles such as MERS, and the lessons that the crisis teaches about the modernization trend. It argues that the beneficial aspects of modernization should be retained and suggests other changes that would better reflect commercial reality (e.g., changes in assignment rules for mortgages, documentation for foreclosure), but asserts that increased consumer protection and transparency are also necessary for fair and effective secondary market transactions.

Ben Barros

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Never Forget The True Owner In Finding Cases

A while ago, we noted a dispute between a contractor and a homeowner about a bunch of 1920s currency found in a wall.  Classic finder v. owner of the locus dispute, right?  Well, the publicity generated by the dispute brought the true owner's descendents out of the woodwork, and they'll get a share.  Of course, the lawyers will probably get the biggest share.

Ben Barros

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Estate of Panic

Hmm, I'm not quite sure this is high-brow enough for propertyprof.  But ... sci-fi channel is bringing us a new original series, "Estate of Panic."  According to the sci-fi channel's website:

There's no place like this home. Estate of Panic turns nightmares into reality and pushes phobias to the limit.

Each week, a new group of contestants enter the estate searching for money hidden inside of booby-trapped rooms. The walls in one cave in, creating a hopelessly small space. Can the contestants survive it? Then thousands of creepy, crawling bugs line the walls and floor of another room, and flooding water rises by the second in another.

Throughout it all, contestants must remain calm because if they panic, they won't get paid.

The game begins with seven contestants who compete in three nerve-wracking challenges. After each challenge two are eliminated and their winnings are added back into the prize pot. The last person standing faces a final challenge in the Vault Room.

I've got to think that there's a place for this in trusts and estates class.  I'm just not sure where it fits.

Al Brophy

Teaching Natural Resources Law in First Year Property

The paper on drilling in the Marcellus Shale mentioned in the previous post is very timely -- I just did a short unit on ownership of water and natural resources in my first-year Property class.  This was the first time that I've covered natural resources in Property.  I thought it worked very well, and brought out some very important issues (e.g., that the mineral estate generally is dominant over the surface estate).  I know that it is hard to cover more material in the ever-shrinking first-year course, but I thought that the mineral and water issues were worth the hour or two it took to discuss them.

Ben Barros

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Bollinger on Marcellus Shale

Justin Bollinger has posted Marcellus Shale Exploration & Farmland Preservation in Pennsylvania on SSRN.  Here's the abstract:

The recent boom in drilling for natural gas in the Marcellus Shale formation, hidden deep below the surface in parts of northern and western Pennsylvania, New York, Ohio, West Virginia, and Maryland, will undoubtedly have immediate and lasting consequences for countless acres preserved through Pennsylvania's Farmland Preservation Program, private land trusts, and tax incentive programs such as the Clean and Green Act. Many Pennsylvania farms preserved through these programs are likely to encounter pressure to permit drilling on preserved farms if such tracts are located in areas with high concentrations of natural gas. The Farmland Preservation Program, as it was originally enacted, does not prohibit drilling for natural gas on preserved land. Consequently, farmers have had the option to allow drilling on their preserved farms, which some have allowed. However, the recent increase in drilling activity has raised concerns with the Farmland Preservation Program, farmers, and those concerned with conservation that such drilling may inhibit the goals of the preservation program. On the other hand, the added source of income may be a way for farming families to pay off outstanding debt associated with their agricultural operations and to pass the farm on to the next generation without having to sell or subdivide land to residential or commercial developers.

This paper will discuss the intersection of these two topics, drilling and farmland preservation, specifically addressing a handful of Pennsylvania preservation programs and laws and the ways that each program seeks to deal with drilling on preserved land. Additional questions such as whether the current preservation programs and laws are consistent with the policy objectives underlying the programs, whether the programs are consistent with one another in furthering preservation, and whether the current programs could benefit from the recent increase in drilling, will also be incorporated. Also, the approach of neighboring states will be addressed as a way to suggest some possible ways for Pennsylvania to clarify its position on drilling for natural gas on preserved farmland in order to create a consistent approach from a policy perspective.

Ben Barros

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