PropertyProf Blog

The Ancient Mariner Was Right

With fewer and fewer classes left in the semester, I'm starting to think about how I can make adjustments to my syllabus for next year.  Most of my internal debate is fairly predictable: is the time spent on rule against perpetuities really worth the payoff?  How much of the conveyancing material is necessary in a 4 credit class?  Do the students get anything out the measly few hours we spend on IP? 

Although most of this is well-trodden ground, one new idea keeps resurfacing -- should I be teaching more water law?  Disputes over water keep popping up in the news (see here, here, and here), and it's likely that water shortages will only get worse as the population continues to boom. 

Although we certainly don't have any water law on the Kentucky bar, the subjects of water, water pricing, and inter-generational equity seem like they might be a rich source of discussion in class.

Any thoughts on whether this might be worthwhile? 

Picture:  French Victorian engraver Gustave Doré's take
on the Rime of the Ancient Mariner (Note the Flight of the Conchord ill-fated albatross)

Steve Clowney

Billboard War

The good people of Los Angeles are in the middle of a nasty dust up over the regulation of billboards.  The long-running dispute pits the planning commission and City Council against the region's well-heeled outdoor advertising industry. Christopher Hawthorne of the LA Times summarizes:

City Hall lawyers signed off on a 2006 legal settlement allowing more than 800 billboards to be turned into digital signs, and separately has been mostly powerless to slow the growth of supergraphics, those gigantic wraparound advertisements that are capable of mummifying entire pieces of architecture. As parts of the battle play out in court, complicated by free-speech questions, billboard companies have rushed to put up as many new signs as they can. The result is a legal and political mess, to be sure.

Although I have a lot of symphathy for the advertising geniuses who put up all those Wall Drug signs across South Dakota, the constant assault of visual clutter makes me wonder if we wouldn't be better off going the way of Sao Paulo.

Picture:  Upton, Kentucky

Steve Clowney

McFarlane on Eminent Domain and Redevelopment

Audrey McFarlane (U. Baltimore) has posted Rebuilding the Public-Private City: Regulatory Taking's Anti-Subordination Insights for Eminent Domain and Redevelopment on SSRN.  Here's the abstract:

The eminent domain debate, steeped in the language of property rights, currently lacks language and conceptual space to address what is really at issue in today's cities: complex, fundamental disagreements between market and community about Development. The core doctrinal issue presented by development is how can we acknowledge the subordination of citizens who happen to live in areas that are attractive to wealthier citizens. In particular, how should we address the political process failure reflected in the privatized methods of decisionmaking that typify redevelopment? The conceptual language and analytical construct for appropriately addressing these issues come from critical race theory and its project of anti-subordination. The doctrinal model for resolving urban development disagreement comes from the anti-subordination principles reflected in regulatory takings doctrine. This Article argues that regulatory takings doctrine reflects one of the most developed, yet underappreciated, anti-subordination doctrines in the law. Both takings and critical race theory provide a template for properly focusing on ways to improve the lack of public accountability in development and the unresponsiveness of eminent domain doctrine to commonly accepted notions of fairness as a component of the public good.

Ben Barros

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For the PropertyProf With Everything...

...except a sense of style.

hat tip: Faculty Lounge

Steve Clowney

Does Patty Salkin Ever Sleep?

I recently received a press release announcing the publication of the new five-volume American Law of Zoning from West, edited by Patty Salkin.  Given the absurd number of other publications that Patty produces, not to mention her blog The Law of the Land, I wonder whether she has reached a higher stage of human evolution that does not require sleep.

Ben Barros

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Hernando de Soto on the Credit Crisis

The Wall Street Journal has an op ed by Hernando de Soto on the credit crisis that will be of interest to property profs. 

Ben Barros

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A Year in the Life

Thinking more about the entry-level hires today raised one question: Is there anything property-specific that isn’t covered in the literature on getting started in legal academia?  With only one year under my belt, I don't think I have a lot of insight on this topic, but there is one thing I wish I'd put more thought into; choosing a property casebook. 

Like most new property people, I adopted the Dukeminier, Krier, Alexander, & Schill textbook.  This decision turned out just peachy, but it wasn’t terribly well reasoned; I used the Dukeminier as a student, it's got some neat cases, and--as everybody told me at the AALS New Teachers’ Workshop--it has "an amazing teacher's manual." 

Wrapping up a year with the Dukeminier (who taught at Kentucky) here are some thoughts (from least to most serious):

(1) First, I really miss the look and feel of the Fifth Edition.  The Fifth Edition, short and squat, had personality.  It was a textbook (with a potbelly!).  A textbook that could beat up other textbooks and eat a bratwurst at the same time.   

(2) Second, the teacher’s manual is actually pretty “meh.”  It provides nice summaries of the cases, but it’s no more comprehensive than the supplemental material that comes with the Merrill & Smith or the Freyermuth, Organ, Noble-Allgire and Winokur.  Why don’t the other (really good) teacher’s manuals get more airtime?

(3) Third, is it good for property scholarship that so many young scholars are introduced to the basic concepts through the same set of materials?  If everyone’s first thoughts about adverse possession are filtered through the lens of Van Valkenburg v. Lutz does that have long-term effects for the profession?  I've suggested elsewhere that the portrayal of holographic wills in Dukeminier's Trusts & Estates textbook has negatively impacted the academy’s perception of homemade testaments.  Are the biases of the Dukeminier property book having a similar effect?

Steve Clowney

Priest from Northwestern to Yale

PropertyProf Claire Priest is moving from Northwestern to Yale.

Ben Barros

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Penalver on Squatting at Slate

Eduardo Penalver (Cornell), an occasional guest blogger here at PropertyProf, has an interesting article at Slate on how cities should react to squatters in the current economic environment.  Some of his recommendations:

[G]overnments should attack the problem on both the supply and the demand side.  On the supply side, local governments should penalize owners who stockpile vacant housing, perhaps by imposing increased property tax rates on properties left vacant, and by moving aggressively to seize vacant properties when the owners fall behind on paying those taxes. On the demand side, governments should expand homesteading programs that permit and help low-income people to take over vacant housing—but only after it finds its way into city hands. . . .

The federal government should also move quickly to protect those in financial trouble from foreclosure and eviction by requiring foreclosing banks (many of which are themselves receiving taxpayer bailouts) to rent out foreclosed homes to their former owners at fair market value. In fact, as this letter to the editor in the New York Times Magazine on Sunday correctly observed, allowing owners to remain as renters in their foreclosed homes helps safeguard the value of the houses—which is good for the occupants, good for the banks, and good for the housing market as a whole.

Ben Barros

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Ely on Post-Kelo Eminent Domain Reform at OUP Blog

Over at the OUP blog, James W. Ely Jr. (Vanderbilt) has a post on post-Kelo eminent domain reform.  His conclusion:

Although the state legislative response to Kelo has been decidedly mixed, several state supreme courts have struck down the exercise of eminent domain for economic development purposes by private parties. For example, the Ohio and Oklahoma supreme courts have specifically rejected the reasoning in Kelo and construed their own state constitutions to afford greater protection of property owners against eminent domain.

Supreme Court rulings sometimes have the effect of putting long-ignored issues back in the spotlight. Perhaps the most significant impact of Kelo could be heightened public recognition of the need to safeguard property rights. One result of Kelo has been to restore the rights of property owners to public debate. This development may ultimately bear more fruit.

Ben Barros

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Welcome to Thunderdome

Tonight I was cruising through the Legal Theory Blog’s entry-level-hiring list and was struck by the awesomeness of the incoming profs.  Wow.  Special congratulations are in order for all the new PropertyProfs who have landed jobs.  A hearty welcome to future property czars William Hubbard (Baltimore), Daniel A Lyons (Boston College), Minor Myers (Brooklyn), Joseph Blocher (Duke), Troy A. Rule (Missouri), Katherine Trisolini (Loyola LA), Celeste Pagano (Oklahoma City), and Tracie Porter (Southern Illinois) (please let me know if I missed anyone)!

Steve Clowney

Adversely Possessing Your Blog

Longtime listener, first time caller.  Many thanks to Ben for inviting me to play on the PropertyProf sandbox.  If all goes well over the next few weeks this blogging stuff will get me fired, I'll start my own website, and then become an internet sensation/millionaire.

Steve Clowney

Guest Blogger Steve Clowney

I'm delighted that Steve Clowney of the University of Kentucky School of Law will be joining us as a guest blogger.

Welcome Steve!

Ben Barros

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Moringiello on Virtual Worlds and Property Law

Juliet M. Moringiello (Widener) has posted What Virtual Worlds Can Do For Property Law on SSRN.  Here's the abstract:

This is an article about how disputes over virtual world items, such as virtual money, Second Life islands, and even "sex beds," can inform property law generally. Rights in these virtual world items, like rights in software and many other intangible assets, are transferred by standard-form agreements that are often designated as licenses. For many readers, virtual worlds need no definition; it has been hard to read a major newspaper in the past several years without encountering an article about virtual worlds. In the past several years, Second Life and other virtual worlds were featured in numerous articles in major American newspapers, including the New York Times, the Washington Post, and the Wall Street Journal.

Virtual worlds have captured the attention of legal and other scholars. The legal literature tends to focus on the application of "real world" laws to the virtual environment. Some have discussed how our property laws should apply in virtual worlds; others have questioned whether virtual worlds need their own governance institutions. In this article, I will take another approach. Rather than asking whether real world laws can or should apply to virtual worlds, I will discuss the ways in which the study of virtual worlds can contribute to real world law. Specifically, I will explain what the study of virtual world assets can do for property law.

In this paper, I argue that virtual world assets are significant because they graphically illustrate the different rights that persons can hold in an intangible asset. Once we see that intangible assets encompass the very same rights that are embodied in tangible assets, we can understand that the law should not permit the unfettered customization of property rights in intangible assets by standard form agreements, just as the law does not permit the unlimited customization of property rights in tangible assets and real property. My thesis is that a study of virtual world assets can help us understand why the numerus clausus principle should be more rigorously applied to rights in intangible assets and that the numerus clausus can, in turn, assist us interpreting the standard-form agreements that convey rights in these assets.

Ben Barros

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Lehavi on Global Land Law

Amnon Lehavi (Interdisciplinary Center Herzliyah - Radzyner School of Law) has posted The Global Law of the Land on SSRN.  Here's the abstract:

Are we witnessing the gradual universality of national land laws, which have traditionally been considered to be the paradigm of legal idiosyncrasy, by virtue of their reflecting place-specific society, culture, and politics? This Essay offers an innovative analysis of the conflicting forces at work in this legal field, basing itself on an historical, comparative, and theoretical study of the structures and strictures of domestic land laws and of current cross-border phenomena that dramatically affect national land systems.

The central thesis of this Essay is that, irrespective of our basic normative viewpoint regarding the opening up of domestic land laws to the forces of "globalization," we must come to terms with the particularly difficult institutional and jurisprudential constraints that are involved in undermining the local basis of land laws. Thus, in order to systematically succeed in intensifying cross-border land law rules, global and national actors need to construct more comprehensive supra-national institutions, prevent normative over-fragmentation within each legal system, and pay close attention to local-specific interplays between law, politics, economics, and culture.

Ben Barros

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Stern from Loyola-Chicago to Chicago Kent

PropertyProf Stephanie Stern is moving from Loyola-Chicago to Chicago Kent.

Ben Barros

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Miller on Copyright Originality

Joseph Scott Miller (Lewis & Clark) has posted Hoisting Originality on SSRN.  Here's the abstract:

Copyright's originality standard is ripe for reappraisal. Many have described how copyright exclusion claims now intrude into the everyday lives of ordinary folk - making an "infringement nation," coated in "billowing white goo." (Tehranian (2007); Litman (2008)). And many have proposed ways to cope with copyright's expansion, from strengthening the fair use privilege to trimming the derivative work right to modifying the basic "substantial similarity" infringement standard. A few have tackled the matter at the front end - putting, as it were, less goo in the billowing machine. (E.g., Hughes, Size Matters (2005); Sprigman, Reform(Aliz)ing (2004)). Virtually no one, however, has gone back to the source - copyright's originality standard. Feist, the phone book white pages case, tells us that, at least as a constitutional matter, "the requisite level of creativity is extremely low." 499 U.S. 340, 345 (1991). But the Copyright Act's statutory originality requirement can, and should, be more demanding. I pattern this exploration on patent law's rejuvenated nonobviousness requirement, which the Supreme Court's KSR decision (2007) grounds on incenting the unconventional and unexpected. We should put copyright's creativity requirement on the same footing, protecting expression in proportion to its unconventionality. Indeed, the conditions that justify a nonobviousness requirement for useful inventions - distilled to the wisdom that "[w]ith greater rights come more stringent requirements for obtaining the rights" (Duffy, Inventing Invention at 10 (2007)) - are strikingly similar to those that bear on creative expression. I also identify the critical wrong turn in Bleistein (1902), where Justice Holmes concluded that the alternative to a low creativity threshold was a stifling aesthetic orthodoxy policed by the judiciary. He was right to turn away from such orthodoxy, of course, but missed a third, and better way - rewarding, and thus encouraging, the heterodox itself. The progress at which we should aim, for copyright as much as for patent, is the new vista to which we're led by those who break through conventional boundaries.

Originality must be hot right now!

Ben Barros

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Parchomovsky and Stein on Originality in Copyright Law

Gideon Parchomovsky (Penn) and Alex Stein (Yale/Cardozo) have posted Originality on SSRN.  Here's the abstract:

In this Essay we introduce a model of copyright law that calibrates authors' rights and liabilities to the level of originality in their works. We advocate this model as a substitute for the extant regime that unjustly and inefficiently grants equal protection to all works satisfying the "modicum of creativity" standard. Under our model, highly original works will receive enhanced protection and their authors will also be sheltered from suits by owners of preexisting works. Conversely, authors of less original works will receive diminished protection and incur greater exposure to copyright liability. We operationalize this proposal by designing separate rules for highly original works, for works exhibiting average originality, and for works that are minimally original or unoriginal. We illustrate our rules' application by showing how they could have altered court decisions in classic copyright cases in a socially beneficial way.

Gideon sure likes those one-word titles.

Ben Barros

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Mossoff on Patent Anticommons

Adam Mossoff (George Mason) has posted A Stitch in Time: The Rise and Fall of the Sewing Machine Patent Thicket on SSRN.  Here's the abstract:

Scholarly interest in how anticommons theory applies to patents has skyrocketed since Professor Michael Heller first proposed a decade ago that excessively fragmented interests in land can frustrate its commercial development. There is now a vigorous debate on whether anticommons exist in patent law, and, if so, whether these patent thickets impede innovation in patented products. As Professor Heller writes in his recently published book, The Gridlock Economy, "the empirical studies that prove - or disprove - our theory remain inconclusive."

This article contributes to this debate by analyzing the rise and fall of the first patent thicket in American history: the Sewing Machine War of the 1850s. The invention of the sewing machine in the antebellum era represents many firsts in the American legal system - the first patent thicket, the first "patent troll," and the first patent pool. Significantly, this case study verifies that patent thickets exist and that they can frustrate commercial development of new products. But it also challenges widely held assumptions in the patent thicket literature. Many scholars believe that this is largely a modern problem arising from a host of allegedly new issues in the patent system, such as incremental high-tech innovation, excessive litigation, and the rise of "patent trolls." Yet the sewing machine patent thicket exhibited all of these phenomena, revealing that patent thickets have long existed within the historically successful American patent system. The denouement of the sewing machine patent thicket in the Sewing Machine Combination of 1856, the first privately formed patent pool, further challenges the widely held belief that patent thickets are best solved through new statutes, regulations or court decisions that limit property rights in patents. To the contrary, the Sewing Machine Combination was formed against the backdrop of the strong protection of property rights in patents in the antebellum era. Thus, the story of the invention of the sewing machine is a striking account of early American technological, commercial and legal ingenuity, which heralds important empirical lessons for how patent thicket theory is understood and applied today.

Ben Barros

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Appel on Wilderness and the Judiciary

Peter A. Appel (Georgia) has posted Wilderness and the Judiciary on SSRN.  Here's the abstract:

This Article examines how the decisions of four land management agencies governing wilderness areas under the Wilderness Act fare in the federal courts. Agencies normally prevail in the majority of their cases before the federal courts because courts employ doctrines of deference to agencies' decisions. In the context of wilderness management, however, the success rates of the agencies varies drastically depending on the type of challenge brought. The Article provides a historical overview of different schemes for wilderness protection, from administrative regulatory schemes to the adoption of the 1964 Wilderness Act and subsequent enactments. It then examines specific case studies and numeric information from all of the cases decided under the 1964 Wilderness Act. The numbers reveal three striking facts. First, a two-fold gap exists between agency success rates in litigation depending on who brings the challenge and the type of challenge it is. Second, the agencies tend to lose in challenges brought by environmentalists more often than not. Third, the party of appointment for the judges does not appear to affect overall distribution of their votes as measured on a simple "pro-wilderness"/ "anti-wilderness" axis. After providing some possible explanations for this apparent one-way judicial ratchet favoring wilderness protection-some of which will be examined more thoroughly in future work-the Article offer some observations about whether such a one-way ratchet will always benefit wilderness restoration and protection.

Ben Barros

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