Monday, January 23, 2012

Tekle on Laws & Watershed Law

Asmara Tekle (Thurgood Marshall) has posted Lawns and the New Watershed Law (Marquette Law Review) on SSRN.  Here's the abstract:

American's long love affair with the evergreen, crew-cut, weed and pest free "Industrial" front lawn has resulted in untold costs on some of the nation's most cherished waterways, including Puget Sound, the Great Lakes, and the Chesapeake Bay. While this Article examines the legal regimes, primarily public law and neighborhood or community norms, that arguably have helped to "brown" the front lawn and make it environmentally unsustainable, it also argues that law can be a force to "green" it. By virtue of its effects on the watershed and marine ecosystems, the front lawn links water and land. This Article ultimately suggests that localities consider the front lawn’s effects on marine ecosystems and water management as a starting point for crafting land use law and policy. Arguably, therefore, land use law governing the front lawn has become part of the new watershed law.

Steve Clowney

January 23, 2012 | Permalink | Comments (0) | TrackBack (0)

Sunday, January 22, 2012

The Land Grant of William M'Intosh


McIntosh land patent

I'm teaching Johnson v. M'Intosh tomorrow, so I thought it would be fun to find the original land grant to William McIntosh.  My favorite part is how they crossed out James Madison's name at the top and handwrote in "Monroe." 

A few years ago, you had to visit the National Archives to get copies of original land grants.  Today, many are digitized and available online at the Bureau of Land Management's General Land Office website

You can click on the image to the right to get a larger version of the grant.  Feel free to e-mail me if you want a high resolution, full-size version.  I also have a map of Illinois from 1818, which shows that most of the state covered by the Johnson grant was not yet surveyed and open for settlement.

Tanya Marsh












January 22, 2012 in Teaching | Permalink | Comments (0) | TrackBack (0)

Friday, January 20, 2012

The Steve Jobs Action Figure and White v. Samsung




We discussed the common law right of publicity today in class, particularly the 1993 9th Circuit Vanna White v. Samsung Electronics case.  If you aren't familiar with the case, Samsung had a national ad campaign which featured an image of a robot wearing a blonde wig, turning letters on a Wheel of Fortune-type board.  The campaign did not name White or Wheel of Fortune, but in the context, it is pretty clear that they meant to invoke White.  They even referred to the ad internally as the "Vanna White ad."  Underneath the image, the text read: "Longest running game show, 2012 A.D."  The class thought that bit was fairly funny.

We also discussed a ripped-from-the-headlines example of the Steve Jobs action figure.  The company "in icons" had proposed to sell the 1-foot, increadibly realistic action figure, beginning in February.  It received a cease and desist letter from Apple, threatening legal action.  After initially refusing to budge, in icons caved yesterday, announcing that out of respect for the Jobs family, it would not produce the figure.

Discussing the Jobs action figure after reading the White case was very effective, allowing us to debate drawing distinctions between property rules protecting the images of entertainment celebrities (like White) and public figures (like Jobs), the living and the dead, those who made money by selling their image, versus those who did not.  The same issues can be raised by discussing White v. Samsung and the Martin Luther King Jr. Center for Social Change case.

Tanya Marsh

January 20, 2012 in Personal Property, Teaching | Permalink | Comments (0) | TrackBack (0)

The Nelson Symposium at Florida

Picture 2

On Friday, February 10th, the University of Florida is hosting the eleventh annual Richard E. Nelson Symposium. The topic is “Digging Up Some Dirt (Law): How Recent Developments in Real Property Law Affect Landowners and Local Governments.” The four major topics concern changes in adverse possession, eminent domain, easement, and mortgage law. The presenters include Michael Wolf (Florida), Carol Brown (UNC), Ann Marie Cavazos (FAMU), Alex Johnson (UVA), and Jessica Owley (Buffalo).

Looks terrific. Registration information here.

Steve Clowney

January 20, 2012 | Permalink | Comments (0) | TrackBack (0)

Doremus on Climate Change and the Evolution of Property Rights

Holly Doremus (Berkeley) has posted Climate Change and the Evolution of Property Rights (UC Davis Law Review) on SSRN.  Here's the abstract:

Climate change will unsettle expectations about both land and water. Those changes will reduce the extent to which existing

resource allocations effectively serve societal interests. In the United States, we typically rely on market transactions to adjust property allocations as societal needs and interests change. Markets, however, will not adequately protect the collective, as opposed to the private, interests climate change will put at risk. Changes to underlying property rules will be needed if those interests are to be sustained.

Because current property rules stand in the way of efficient and effective adaptation to climate change, evolution of property law is an important aspect of adaptation. But because property rules are especially sticky, the needed changes will not come easily. Federal courts must play the keystone role because they control the interpretation of key constitutional doctrines. The chief legal impediment to climate adaptation at the moment is federal court resistance to changes in property rules. If that resistance can be softened, state courts and legislatures can, and likely will, make needed adjustments. Federal courts should be careful not to stand in the way of such adjustments, although they also have a role to play in ensuring that the costs of change are fairly distributed.

Steve Clowney

January 20, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, January 19, 2012

Be Warned

I'm about to teach Kelo to my Property students. They'd all remember the hubbub about the case, right?  It was only a few years ago, right?  Wrong.  Many of them were in 9th grade.  I asked the class how many people remembered the case.  Only about 15% raised their hands.  Be warned.  We are old.

Ben Barros

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

January 19, 2012 in Takings, Teaching | Permalink | Comments (0) | TrackBack (0)

Gingrich: Lefty Urbanites Who Ride the Subway Don't Understand Why Homeownership is Important

It appears that Newt Gingrich only loves the free market when it doesn't hurt the bottom line of wealthy  people who live in the suburbs.  Gingrich recently gave a speech at the National Association of Home Builders' "Rally for Homeownership," where he pledged to protect the Mortgage Interest Deduction.  If supporting a program that most economists consider a giant waste of money wasn't bad enough, Gingrich couldn't resist throwing daggers at city-dweller.  He remarked, “Those who, you know, live in high-rise apartment buildings writing for fancy newspapers in the middle of town after they ride the metro, who don’t understand that for most Americans the ability to buy a home, to have their own property, to have a sense of belonging is one of the greatest achievements of their life, and it makes them feel like they are good solid citizens.”

Steve Clowney

January 19, 2012 | Permalink | Comments (0) | TrackBack (0)

Mossoff on Locke’s Labor Theory and Intellectual Propert

Adam Mossoff (George Mason) has posted Saving Locke from Marx: The Labor Theory of Value in Intellectual Property Theory (Social Philosophy & Policy) on SSRN.  Here's the abstract:

The labor theory of value is fundamental to John Locke’s justification for property rights, but philosopher Edwin Hettinger argued in an oft-cited article that it fails to justify intellectual property rights. In making this critique, though, Hettinger redefined Locke’s theory into a theory about proportional physical labor creating economic value, just as Robert Nozick, G.A. Cohen and other philosophers have done. In response to this strawman attack, this article describes Locke’s labor theory of value and how Locke himself applied it to intellectual property rights. It does so by analyzing the actual text of the Second Treatise, including many forgotten or neglected sections, and by integrating Locke’s property theory within the context of his natural law ethical theory, as presented in An Essay Concerning Human Understanding and in other works. In its proper context, Locke’s concept of labor refers to production, which is both an intellectual and physical activity. His concept of value refers to what serves the flourishing life of a rational being, which is a conception of the good that is more robust than merely physical status or economic wealth. Locke’s own text and philosophical arguments answer the absurdities imposed on him by Hettinger, Nozick, Cohen and others. Even more important, understanding his labor theory of value explains why Locke expressly approves of inventions in his property theory and why he explicitly argues that authors have property rights (copyrights) in their writings, which are arguments that are seemingly lost on his modern critics.

Steve Clowney

January 19, 2012 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 18, 2012

The Passing of Charles Haar

The property world has lost one of its lions. Today brings sad news that Charles Haar, the Louis D. Brandeis Professor of Law, Emeritus at Harvard Law School has died.  He was 91. 

Professor Haar was instrumental in carving out Land Use as a distinct scholarly field and leaves behind a prodigious list of contributions to the property cannon.  Additionally, Haar's accomplishments include drafting many of President Johnson's signal urban policy laws: the Demonstration and Model Cities Act of 1966; the Safe Streets and Crime Control Act of 1968; Title IV of the Housing and Urban Development Act of 1968 (New Communities); and the Section 236 Affordable Housing Guarantee Program.

The final word here goes to Michael Wolf, a collaborator and long-time friend of Professor Haar: "Charles was always proud to have been named Louis D. Brandeis Professor, and I believe that these two legal giants had many characteristics in common, including, but not limited to, their belief that government in the right hands could be used to improve the common good, their understanding that judges played a crucial role in shaping law, and their strong commitment to the state of Israel. He will be missed."

Steve Clowney

January 18, 2012 | Permalink | Comments (1) | TrackBack (0)

The Sneakiest Scam of the Real Estate Age?

I spent the long weekend in Las Vegas and came across this truly outstanding tale of deceit.  It's a story of woe that involves all of my favorite things: homeowners associations, private investigators, and Four Loko:

As Las Vegas’s housing supply exploded, so did the competition among lawyers and contractors to represent new homeowner associations in so-called construction-defect lawsuits. It was in this environment, according to plea agreements recently unsealed in an ongoing FBI investigation, that a shadowy outfit cooked up a brazen scheme.

When a new development was nearing completion, the group would buy a couple of units in the community and then transfer partial ownership of the condos to individuals secretly on its payroll, according to court documents. While pretending to be residents of the communities, these “straw buyers” would run for leadership positions on boards of the new homeowner associations. By paying off community managers, hiring private investigators to find dirt on legitimate candidates, and rigging elections, the documents allege, the straw buyers were able to infiltrate boards at several new developments in Las Vegas from 2003 to 2008. Once in control of the boards, the straw buyers would then use their governing positions to steer millions of dollars in construction and legal fees back to their co-conspirators.

Steve Clowney

January 18, 2012 | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 17, 2012

The Winter of the Deep Snow

I've been doing some work on settlement in Illinois in the early -to- mid 19th century and have found several references to the "winter of the deep snow," as in "so and so arrived before the winter of the deep snow."  The History of Scott County, Illinois places this event in 1830/31 and describes it thusly:

Just after Christmas, 1830, the snow began falling, and continued until all over the central part of Illinois the snow upon an average, was three feet deep. "Then came a little rain, with weather so cold that it froze as it fell, forming a crust of ice over this three feet of snow nearly, but not quiet, strong enough to bear a man; and finally, over this crust of ice there was a few inches of light snow. The clouds passed away, and the wind came down from the northwest with extraordinary ferocity. For weeks, - certainly, for not less than two weeks, - the mercury in the thermometer was not, on any morning, higher than twelve degrees below zero. The wind was a steady, fierce gale from the northwest, day and night. The air was filled with flying snow, which blinded the eyes and almost stopped the breath of any one who attempted to face it. An average depth of three feet of snow, accompanied, as it fell, with wind blowing at the rate above described, would, of course, be piled in great drifts, many of which were higher than fence-tops. The corn was in the field ungathered, the wood was in the timber, under the snow, yet the corn must be got, or the stock, and people, too, would suffer for food; and the wood must be obtained, or the people would freeze to death. Roads had to be broken, yet the wind blew so hard, and with that depth of snow, that they would almost immediately fill up, and they had to be broken over again. The result was, that long after the warm rains had melted the snow, strips of ice remained in the roads. Every living thing suffered more or less from this terrible winter. The hunters and wolves made sad havoc among the deer, while a great many smaller animals died by starvation. Especially was this true of the quails, which were almost exterminated. A majority of the settlers were from Tennessee, Kentucky and South Carolina, and having never experienced anything of the kind, were greatly disheartened by this severe winter; but the indomitable Yankees among them, who had seen snows in New England (but nothing like this) took the lead in breaking paths and roads, and cheered up the drooping spirits of the southerners, by talking of spring and its sunshine, and telling them that perhaps such a winter would never come again.

Its hard to even imagine.  By the way, it was 60 degrees today in Winston-Salem.

Tanya Marsh

January 17, 2012 in Miscellaneous | Permalink | Comments (0) | TrackBack (0)

All Sprawl is Not Created Equal

The ever-generous Matt Festa (of Land Use Prof fame) recently sent me a link to a blog post about sprawl in the Pittsburgh area.  The main thrust of the story is that Pittsburgh has been very, very naughty; Over the last 70 years, the city's urban footprint has tripled while the population has remained constant.  For the author of the post, this is the very essence of "bad" urban sprawl.




Since I'm contractually obligated to say nice things about my hometown, I want to argue that the criticism is (mostly) misguided.  It's true that Pittsburgh has spread out over the last few decades, and it's equally true that a lot of the new construction looks like classic McMansiony suburbs.  But that development isn't entirely bad and, moreover, it doesn't tell the whole story.

The new spawl-y construction isn't an altogether awful thing because a lot of Pittsburgh's urban housing was of terrible quality.  Many of the old stock houses in the city limits are extremely narrow row houses that aren't completely suited for modern living.  Remember, too, this was a place that was once described as "Hell With the Lid Off."  Kids got sent home from school because the coal dust in the air was too thick.  It makes perfect sense that many families wanted to get away from the worst of the smog, and the crowding, and the flooding along the rivers. Sprawl, at least in Pittsburgh, reduced the amount of total human suffering.

Perhaps more importantly, the growth of housing options has kept real estate prices within the city remarkably low.  Pittsburgh, unlike most cities, has a bevy of walkable urban neighborhoods that remain affordable.  From my vantage point, this is key.  If some rich people want to live far away from the central city in ugly, soul-crushing places, they should have the option to do that.  I'm way more concerned with the housing options for people on the bottom and it seems clear that some amount of sprawl preserves more and better choices for people on the lower rungs.   

Steve Clowney

January 17, 2012 | Permalink | Comments (2) | TrackBack (0)

What Would Dr. King Say About Today's Fair Housing Rules?

My former classmate, Adam Gordon, has posted an intriguing opinion piece that asks, "What Dr. King would think about fair housing practices in New Jersey if he were still alive?"  He concludes:

If Dr. King were alive today, he would call out Governor Christie, for acting against the fair housing principles he fought so hard for. He would note that — as the Courier-Post reminds us in an editorial today — our state is “among the most segregated in the country,” and Governor Christie’s actions further that segregation. And Dr. King would transcend racial lines – pointing out that while the Governor’s actions to maintain segregation do fall particularly hard on African-American and Latino communities, they also impact working-class white families, people with special needs, and struggling seniors.

Steve Clowney

January 17, 2012 | Permalink | Comments (0) | TrackBack (0)

Fenster on Failed Exactions

Mark Fenster (Florida) has posted Failed Exactions (Vermont Law Review) on SSRN.  Here's the abstract:

This symposium essay considers the doctrinal quandary created by 'failed exactions' - regulatory conditions on property development that government agencies contemplate but that are never finalized or enforced, usually because the property owner rejects them. A narrow but conceptually challenging issue to the relationship between the unconstitutional conditions doctrine and regulatory takings law, failed exactions could prove profoundly unsettling to current land use practices. A decade ago, the issue of whether failed exactions deserve heightened scrutiny prompted Justice Scalia to issue a dissent from a denial of petition for certiorari in which he stated, somewhat tentatively, that an extortionate demand made of a land owner by a government agency for land or money as a condition on development could and perhaps should trigger rigorous judicial review.

Both before and after Justice Scalia’s ruminations, which only Justices Kennedy and Thomas joined, courts have struggled with this question. As the litigation that ended with the Florida Supreme Court decision in Koontz v. St. Johns Water Management District (2011) reveals, judicial efforts to put the unruly peg of an unenforced condition into the narrowly defined categories of regulatory takings creates an excess of confusion. The essay identifies the doctrinal, remedial, procedural, and consequential dangers of any effort to apply heightened federal constitutional scrutiny to failed exactions.

Steve Clowney

January 17, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, January 16, 2012

A Housing Rebound? Well....

Is the residential housing market improving?  That's a difficult question to get a straight answer to.  Last month, the National Association of Realtors announced that it had double-counted some home sales since January 2007, and revised five years worth of sales numbers, reflecting a much weaker market than previously understood.

A New York Times article also demonstrates that we need to be cautious in taking national statistics, or even state and regional-level statistics, at face value.  For example, a new report indicates that home sales in New Jersey picked up in the latter part of 2011, with increases in contracts signed in six of the seven months between May and November.  However, the report also reveals "A great division in market fortunes between northern and southern Jersey — and urbanized areas close to Manhattan and more rural regions..." For example:

"Salem County, rich in historic houses and farmland but short on well-paying jobs or a quick commute to an urban center, has the largest inventory of all 21 counties surveyed: 44.5 months’ worth of houses, the preponderance of them priced under $400,000." 

“Simply put,” said Dawn Rapa, a Coldwell Banker Elite agent working in rural Salem County, “the only people I’ve seen selling their houses recently are those who absolutely had to — because they were in financial disarray, a job change, divorce or death.”

In my work on the commercial real estate market, I've noted that a few large markets, such as New York City, Washington, D.C., and San Francisco, distort national and regional statistics for two reasons:  (1) those real estate markets are largely immune to severe or long-term economic downturns because of there is still more demand than supply; and (2) property values are significantly higher in those markets than in the remainder of the country.  In other words, Class A commercial real estate in New York has remained strong through the financial crisis.  Those high-value transactions mask continued weakness in cheaper Class B and C assets, and make the commercial real estate market look more vibrant than it really is.  Although I haven't taken a close look at the residential real estate statistics, it appears that the same distortions may be taking place.

Tanya Marsh

January 16, 2012 in Mortgage Crisis | Permalink | Comments (0) | TrackBack (0)

The Fee Tail in Downton Abbey


If you are looking for a example to teach your students about the fee tail (particularly one restricted to male heirs), look no further than the Golden Globe-winning PBS series “Downton Abbey.”  This drama focuses on Robert Crawley, the Earl of Grantham, his American-born wife Cora, their three teenage/young adult daughters, and the estate they control, Downton Hall.  The show begins with the death of the Earl’s cousin and his son, the two closest male relatives of the Earl and therefore the presumptive heirs to Downton Hall.  Two of the maids discuss what this tragedy means to the future of Downton:

O’Brien:  “Mr. Crawley was his lordship’s cousin and heir to the title.”

Gwen:  “I thought Lady Mary [the Earl's eldest daughter] was the heir.” 

O’Brien:  “She’s a girl, stupid.  Girls can’t inherit.  But now Mr. Crawley is dead and Mr. Patrick was his only son.  So what happens next?”

What happens next is that the Earl has to reach out to his third cousin, Matthew Crawley, a solicitor from Manchester, and inform this (lucky?) chap that he’s now next in line to become an Earl and inherit a huge estate. 

Even if you aren’t looking for an example of the fee tail, you should still watch Downton Abbey.  Several episodes from Season One are available for free on, they are all on Netflix and iTunes.  Season Two began two weeks ago, and the first two eps are available for free on

Tanya Marsh

January 16, 2012 in Future Interests and the RAP | Permalink | Comments (4) | TrackBack (0)

Friday, January 13, 2012

The Genius of Individual Ownership

When I teach Pierson v. Post, we spend a few minutes talking about why the judges just didn't order the litigants to just share the fox pelt.  The point I try to make is that property law is biased in favor of individual ownership -- the administrative and monitoring costs are much lower.  To drive this point home, I show the first 1:45 of this clip from the Big Bang Theory.  The premise is that four close friends have pooled their money together and purchased a prop from the movie, Time Machine. Property-themed hilarity ensues:


Steve Clowney

January 13, 2012 | Permalink | Comments (2) | TrackBack (0)

Owley on Exacted Conservation Easements

Jessica Owley (Buffalo) has posted Exacted Conservation Easements: Emerging Concerns with Enforcement (Probate & Property) on SSRN.  Here's the abstract:

Enforceability of exacted conservation easements is uncertain. Legislators, activists, and academics did not contemplate the proliferation of exacted conservation easements when enacting, advocating for, and writing about state conservation easement statutes. Despite this early oversight, exaction has become one of the most common ways that conservation easements come into being. Enforceability of exacted conservation easements is a threshold question of analysis for the continued use of the tool. Assessing the validity, and thus legal enforceability, of the exacted conservation easements involves examining the state’s conservation-easement statutes and state servitude law as well as the underlying permit scheme.

This article presents a roadmap for investigating the enforceability of exacted conservation easements and makes three suggestions for improvement. First, states should address exaction in their state conservation-easement acts. Second, drafters should increase the precision and detail of the agreements, acknowledging and explaining the nature of the exaction and the underlying permitting law. Third, to clarify the elements and uses of exacted conservation easements to both agencies and citizens, government agencies that use exacted conservation easements should promulgate regulations related to their use. Such regulations should include ensuring that permit issuers retain third-party right of enforcements. This will keep the permitting agency involved even if it is not the holder of the exacted conservation easement.

Uncertainty in enforceability of exacted conservation easements calls into question their use as a method of land conservation. Furthermore, the questionable validity of exacted conservation easements indicates that the permits relying upon such exactions could be ill advised and potentially in jeopardy.

Steve Clowney

January 13, 2012 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, January 12, 2012

The Velvet Underground v. Andy Warhol: Whose Banana is it Anyway?


Legendary New York rock band, The Velvet Underground, has sued the foundation that manages artist Andy Warhol’s legacy.  The band claims that the foundation has violated its trademark by licensing the banana image that appeared on the cover of its 1967 album to third parties, including cases for iPhones.

“The banana design became a symbol, truly an icon, of the Velvet Underground,” charged the suit filed Wednesday in Manhattan Federal Court.

The Velvets acknowledge that Warhol designed the cover and claim that he split a $3,000 advance with the band members as payment for his work.

Steve Clowney

January 12, 2012 in Intellectual Property | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 11, 2012

Los Angeles v. Street Vendors

The NY Times, highlights a dispute between stret vendors and the city:

On the boardwalk of Venice Beach, the trinkets seem endless. There are glass pipes, copper necklaces, feather earrings and painted wooden skulls. 

[For years], artists have set up tables to sell their wares. But last year, after a federal court dismissed a city ordinance as unconstitutional, the number of vendors hawking mass-produced items like T-shirts and costume jewelry grew rapidly. Soon, local people said, it was impossible to see the ocean from what is officially called Ocean Front Walk.

A new ordinance that goes into effect on Jan. 20 is intended to forbid only those who are selling items that could be considered to have utilitarian value — that means art is allowed but T-shirts are not. Mr. Rosendahl said that several city and First Amendment lawyers have assured him that the law will stand up in court.

Steve Clowney

January 11, 2012 | Permalink | Comments (0) | TrackBack (0)