Friday, July 29, 2011
Patrick Luff (Washington & Lee) has posted The Market Value Rule of Damages and the Death of Irreparable Injury on SSRN. Here's the abstract:
A fundamental principle of remedies is that the remedy should be sufficient to place the injured party in the position he would have occupied but for the wrong suffered. But law and equity come to very different conclusions about what remedy is sufficient to restore a plaintiff to his status quo ante when real property, rare property, and property with high sentimental but low market value are involved. Equity treats the loss of these items as irreparable injury, meaning that damages are not adequate to compensate the victim for their loss. But if the real property is seized in eminent domain proceedings, or rare or sentimental personal property is destroyed, the market value of these items is generally deemed at law to provide an adequate measure of the value of the loss, so that giving the plaintiff market value damages constitutes an adequate remedy at law. This demonstrates a fundamental tension between law and equity: law presumes that the market value is the measure of the damages suffered from the loss, but equity presumes that the damages from this same loss is immeasurable; were it otherwise, damages would be adequate, and equity jurisdiction would not be invoked. This article examines this tension and concludes that the market value rule of damages fails to provide an adequate remedy when real property is seized in eminent domain or when irreplaceable personal property is destroyed through some wrongful act.
[Comments are held for approval, so there will be some delay in posting]
A brief essay on what happened to the 200 air-raid bunkers built by the Nazi's in Berlin during WWII.
(photo credit: Nicor @ Wikipedia Commons)
The federal government is deeply invested in this question. Many government agencies use the "value of a statistical life" to calculate whether new safety proposals pass cost-benefit muster. For example, if a new airplane safety protocol would cost $100 million to implement and save $300 million worth of human lives, then the program is a pretty clear winner. According to the federal government, the value of a statistical life for cost-benefit purposes is somewhere around $6 million:
Thursday, July 28, 2011
The New York Times runs a fun article on how GIS mapping technology is altering the humanities:
Historians, literary theorists, archaeologists and others are using Geographic Information Systems — software that displays and analyzes information related to a physical location — to re-examine real and fictional places like the villages around Salem, Mass., at the time of the witch trials; the Dust Bowl region devastated during the Great Depression; and the Eastcheap taverns where Shakespeare’s Falstaff and Prince Hal caroused.
The map of Gettysburg is especially cool.
Rosemary Rayfuse struggles with what should happen to the (island) nations that will disappear if ocean levels continue to rise:
Disappearing states could try to acquire territory from another state. However, no other government is likely to give up some of its land, no matter the price. The construction of artificial islands has also been proposed, but the financial, engineering, cultural and legal challenges may be insurmountable. The best scenario under current international law appears to be for disappearing states to enter into some form of federation with another state. However, a merger would threaten their cultural identities and likely oblige them to relinquish control over their resources.
Simply continuing to recognize deterritorialized states as full states is a better solution. A deterritorialized state would consist of a government entity that would continue to represent the rights of its citizens at the international level and vis-à-vis their new host state or states.
[W]hat I found interesting about the reporting was the political take. The reporters begin and end from an unapologetic stance that patent litigation is destructive (and believe me, there is no love for lawyers in this story). They are entirely dismissive of the idea that patents in the high-tech world promote and protect innovation. This is a perfectly reasonable position to take -- I've seen it done plenty in scholarly commentary and the mainstream press. I've also seen the opposing position defended.
What bothered me was the very hostile take on litigation.
The talking points about meritless litigation and nuisance lawsuits could have been taken word for word from the tort reform lobby. If this had been a story about the ability of plaintiffs to stand on their rights to sue big corporations for just about anything else (antitrust, employment discrimination, personal injury, consumer rights), my guess is that it would have been a story about how bad, bad corporate defendants work to keep plaintiffs out of court.
Wednesday, July 27, 2011
A real estate turn-around is underway in Miami:
[T]he balance between supply and demand in South Florida is shifting. In late 2008, as the financial crisis was peaking, there were 108,000 properties for sale and hardly any buyers. The region became a symbol of excess. Buyers abandoned their deposits and reneged on deals, buildings went bankrupt and squatters moved in.
Now there are fewer than 48,000 properties for sale, Condo Vultures said. And with supply diminished, homes have value again.
Wendy Gerzog (Baltimore) has posted Mortgages and Conservation Easements: Not a Good Mix (Tax Notes) on SSRN. Here's the abstract:
This article reviews Kaufman and the Tax Court’s reconsideration of its summary judgment decision that rejected the taxpayers’ deduction for a facade easement charitable deduction. The issues newly considered are the deductibility of the taxpayers’ required cash payments to the charity in connection with obtaining a facade easement charitable deduction and the application of various penalties.
Monday, July 25, 2011
It's really easy to caricature the Institute for Justice for its overly evangelical position on the Takings Clause. Far too often, its lawyers confuse the stupid with the unconstitutional (see e.g., Kelo).
Yet, no matter what you think of the Fifth Amendment, the folks at the Institute deserve high praise for their legal battles against arbitrary licensing and permitting schemes. In many industries, insiders have erected remarkably arbitrary entry barriers that make it difficult for people of modest means to earn a living. Why, for example, does anyone need a license to become a barber, hair braider, florist, tour guide, manicurist, or frozen-dessert seller? Florida won't let you work as an interior designer unless you finish a four-year degree and a two-year apprenticeship. Such schemes put a boot on the neck of low-income entrepreneurs - the very population that could lead a revival of depressed inner-city areas.
Well, here's a wonderful article about a major victory that the IJ has won in the name of economic liberty. In short, a group of monks in Covington, Louisiana started making well-made (and cheap!) wooden coffins to support their abbey. This simple business violated all kinds of state regulations (and really pissed off the state's funeral home cartel). For the monks to sell their coffins, someone in the abbey would have needed to get licensed as a funeral director and serve an year-long apprenticeship. Moreover, the monks would then have needed to convert their monastery into a "funeral establishment," a label that would require a layout parlor for 30 people, a display room for six caskets, and body embalming equipment.
The monks thought all these regulations were excessive, since all they wanted to do was sell wooden boxes. With the help of the IJ, they sued, claiming that the permitting scheme failed rational basis review. The 5th Circuit agreed. If we care about cities and the urban poor, this kind of case needs more standing ovations. I for one, look forward to riding in unregulated jitney cabs and getting $5 dollar hair cuts in the back of someone's truck.
Eric Claeys (George Mason) has posted Intellectual Usufructs: Trade Secrets, Hot News, and the Usufructuary Paradigm at Common Law (Book Chapter) on SSRN. Here's the abstract:
Contemporary American intellectual property (“IP”) scholarship assumes trade secrets and hot news are not property rights because neither field entitles claimants to rights to exclude. This Chapter challenges that conventional wisdom on two grounds. The first is conceptual. Doctrinally, “property” encompasses not only trespassory and exclusionary rights - like rights in land - but also usufructs - like riparian rights. Conceptually, rights in land and river flow both count as property because property consists not of a right to exclude but rather a right to determine exclusively the use of an external asset. Trade secrets and hot-news rights also fit that definition - as usufructs in IP corresponding to riparian rights in real property.
The other ground is historical. Seminal American authorities relied on the concept of the IP usufruct as described in this Chapter to describe and justify trade secrecy and hot-news doctrine as both emerged in nineteenth-century American common law. The Chapter illustrates by interpreting Chancellor James Kent’s treatment of trade secrecy in his Commentaries on American Law, the Massachusetts Supreme Court trade secrecy decision Peabody v. Kidd (1868); an early hot-news decision, Kiernan v. Manhattan Quotation Tel. Co. (N.Y. Supr. 1876); and the U.S. Supreme Court’s decision recognizing hot-news interests in International News Service v. Associated Press (1918).
Friday, July 22, 2011
Property owners in San Francisco are converting large numbers of rental apartments into short-term quarters for tourists. Some are blaming the city's rent control laws for this "hotelization:"
Ms. Kelley predicted that more units would be turned into vacation rentals as landlords sought to avoid rent-control laws available to long-term tenants.
“The city has made its bed with restrictive rent-control laws,” she said, “but with a vacation rental you can avoid that.”
Nancy McLaughlin (Utah) has posted Internal Revenue Code Section 170(h): National Perpetuity Standards for Federally Subsidized Conservation Easements – Part 2: Comparison to State Law (Real Property, Trust, and Estate Law Journal) on SSRN. Here's the abstract:
This article is the second of two companion articles. The first article analyzed the requirements in Internal Revenue Code section 170(h) that a deductible conservation easement be “granted in perpetuity” and its conservation purpose be “protected in perpetuity.” That Article concluded that section 170(h) and the Treasury Regulations should be interpreted as establishing uniform national perpetuity standards for tax-deductible conservation easement donations.
This second article surveys the over one hundred statutes extant in the fifty states and the District of Columbia that authorize the creation or acquisition of conservation easements. This article concludes that, to be eligible for the federal subsidy under section 170(h), conservation easement donors should be required to satisfy both federal tax law and any state enabling statute requirements relating to the transfer, release, modification, or termination of conservation easements. This article also recommends that the IRS issue guidance regarding satisfaction of the federal perpetuity requirements to promote more efficient and equitable review, interpretation, and enforcement of federally subsidized conservation easements.
Thursday, July 21, 2011
There is a new listserv available for pre-tenured faculty in environmental law, natural resources, and land use. This listserv will not duplicate the benefits of other valuable listservs available as it is intended to serve as a safe forum for open and candid dialogue junior scholars.
Beyond a traditional listserv, we will use this list to facilitate paper exchanges among our ranks. Those who choose to participate in the paper exchanges will gain the benefit of two colleagues reading and commenting on their work. Signing onto the listserv does not commit you to the paper exchange program. [If senior scholars are interested in volunteering to comment on a paper or two over the course of the year, please let us know by e-mailing jol at buffalo dot edu.]
To join the listserv, please send the following information to jol at buffalo dot edu
(2) Current Institution
(3) Years Teaching
[comments are held for approval, so there will be some delay in posting]
Thomas Sprakling (Columbia - student) has posted Does Five Equal Three? Reading the Takings Clause In Light of the Third Amendment's Protection of Houses (Columbia Law Review) on SSRN. Here's the abstract:
The Supreme Court’s 5-4 decision in Kelo v. City of New London broke new ground by holding that the seizure of owner-occupied homes as part of a plan to foster economic development was a taking for “public use” under the Takings Clause of the Fifth Amendment. Kelo’s many critics have yet to advance a constitutionally-grounded rationale for why homes should receive special protection from condemnation. This Note argues that the Third Amendment’s solicitude for the home provides a constitutional basis for distinguishing between homes and the other forms of “private property” covered by the Takings Clause. The Amendment, which provides that “[n]o soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law,” shares both historical and textual links with the Clause. These connections suggest the judiciary should apply a form of heightened scrutiny similar to the “meaningful” review standard proposed by Justice Kennedy’s concurring opinion in Kelo when determining whether the government’s seizure of an owner-occupied home is for “public use.”
Michael Burger (Rhode Island) has posted Consistency Conflicts and Federalism Choice: Marine Spatial Planning Beyond the States' Territorial Seas (Enviro Law Reporter) on SSRN. Here's the abstract:
Offshore areas are under pressure to industrialize for renewable energy. To plan for offshore wind development, Rhode Island engaged in a marine spatial planning process that resulted in the Ocean Special Area Management Plan, a regulatory invention of the Coastal Zone Management Act. Notably, the RI O-SAMP maps and plans for uses in federal waters beyond the three-mile line dividing state and federal jurisdiction, as well as within the state’s territorial sea, posing a challenge to the boundaries of offshore federalism. Conceiving of the question of how to balance federal, state, and local interests in siting offshore renewable energy facilities as one of “federalism choice,” there are sound theoretical and pragmatic rationales that weigh in favor of encouraging other states to adopt the O-SAMP model.
Wednesday, July 20, 2011
ALPS 3rd Annual Meeting
March 2-3, 2012, to be held at
Georgetown Law School in Washington, D.C.
Co-sponsored by Syracuse University College of Law
and Georgetown Law Center
Registration Opens September 1, 2011
and Closes January 20, 2012
Early Bird Registration fee is $145 for registration prior to November 15. After November 15 registration is $175.
Registration will be available on our web pages by September 1, 2011
JOIN OUR MAILING LIST at: www.alps.syr.edu/join
CALL FOR PAPERS (Paper/Abstract submissions can be done with registration).
ALPS, third Annual Meeting (supported by Syracuse University, College of Law and Georgetown University Law Center) to be held at Georgetown Law School, March 2-3, 2012. Our first two meetings included 150 participants each; of which approximately 1/3 were from outside of North America. The discussions on all areas of property were exciting and benefited from the diverse mix of viewpoints presented. We are looking forward to an equally good meeting this coming March.
This year registration will include an option to register to attend without presenting a paper. For those wishing to present a paper any topic on property law and policy is of interest and may be on any of a number of topic areas including:
Real, Personal, and Intangible Property
Real Estate Transactions and Finance
Land Use and Zoning
Urban Planning and Development
Mortgages and Foreclosure
Indigenous Populations and Sovereignty
Human Rights and Property
Entrepreneurship and Property
Takings and Eminent Domain
The Economics of Property
[Comments are held for approval, so there will be some delay in posting]
From the wizards at MIT, here's a map of national communities based on text-message interaction between people:
There's also an outstanding interactive feature where you can enter your place of residence and see county to county social interactions based on total call minutes or text message volume.
Robin Craig (Florida State) has posted Ocean Governance for the 21st Century: Making Marine Zoning Climate Change Adaptable on SSRN. Here's the abstract:
The variety of anthropogenic stressors to the marine environment - including, increasingly, climate change - and their complex and synergistic impacts on ocean ecosystems testifies to the failure of existing governance regimes to protect these ecosystems and the services that they provide. Marine spatial planning has been widely hailed as a means of improving ocean governance through holistic ecosystem-based planning. However, that concept arose without reference to climate change, and hence it does not automatically account for the dynamic alterations in marine ecosystems that climate change is bringing.
This Article attempts to adapt marine spatial planning to climate change adaptation. In so doing, it explores three main topics. First, it examines how established marine protected areas can aid climate change adaptation. Second, the Article looks at how nations have incorporated climate change considerations into marine spatial planning to increase marine ecosystem resilience, focusing on the international leader in marine spatial planning: Australia. Finally, the Article explores how marine spatial planning could become flexible enough to adapt to the changes that climate change will bring to the world’s oceans, focusing on anticipatory zoning. Governments, of course, can establish marine zoning governance regimes in anticipation of climate change impacts, as has already occurred in the Arctic. However, drawing on work by Josh Eagle, Barton H. Thompson, and James Sanchirico, this Article argues that governments could also combine anticipatory zoning and closely regulated marine use rights bidding regimes to encourage potential future private users to make informed bets about the future productivity value of different parts of the ocean, potentially improving both our knowledge regarding climate change impacts on particular marine environments and ocean governance regimes for climate-sensitive areas.