Monday, April 30, 2012
Verlyn Klinkenborg meditates on the meaning of "home" throughout human history:
For much of the earliest history of our species, home may have been nothing more than a small fire and the light it cast on a few familiar faces, surrounded perhaps by the ancient city-mounds of termites. [But] homesick children know how sharp the boundary between home and not-home can be because they suffer from the difference, as if it were a psychological thermocline. I know because I was one of them. I felt a deep kinship almost everywhere in the small Iowa town I grew up in. But spending the night away from home, at a sleepover with friends, made every street, every house seem alien. And yet there was no rejoicing when I got back home in the morning. Home was as usual. That was the point. . .
(HT: Daily Dish)
Mark Gergen (Berkeley), John Golden (Texas), & Henry Smith (Harvard) have posted The Supreme Court's Accidental Revolution? The Test for Permanent Injunctions (Columbia) on SSRN. Here's the abstract:
A brusque opinion by the U.S. Supreme Court in a patent case has launched a revolution in the law of equitable remedies. The Court’s opinion in eBay Inc. v. MercExchange, L.L.C. asserted that it was merely upholding “traditional principles” regarding when injunctions should issue. But in circuit after circuit and for subject matter ranging from federal constitutional law to state tort law, lower courts have understood eBay to abrogate longstanding approaches. Focusing on the law for permanent injunctions, this Article examines the eBay opinion and the far-reaching changes that have resulted. For a better perspective on these changes, this Article discusses how courts historically have addressed equity’s traditional concerns with risks of irreparable injury and the balance of hardships. Finally, this Article provides a normative account of the structured sets of equitable presumptions and safety valves that current understandings of eBay threaten to sweep aside.
Friday, April 27, 2012
Torts, necessarily, must be taught mostly from cases. But, property is largely taught from cases, which strikes me a missed opportunity. Property law is a great opportunity to teach statutes, especially since most property doctrines have been statutized.
While I think teaching the FHA is important, I am not sure it should be the first statute students see. Even with the roommate question resolved, it's a complicated statute. Far better to introduce students to statutory interpretation with something like adverse possession.
My former colleague at Arizona State, Dennis Karjala, posts links to the relevant Arizona statutes on the course website. When I taught there, I borrowed from his approach and I thought it was a valuable exercise. Since I haven't taught property since Arizona State, I haven't gotten a chance to try it elsewhere.
Does anybody else do this?
The N.Y. Times investigates:
Outstanding student loand debt now totals over $1 trillion, according to a report last month from the Consumer Financial Protection Bureau. That surpasses the amount owned on all credit cards in the United States. [...]
Most lenders follow underwriting guidelines that limit total debt payments — for the mortgage and property taxes, plus credit cards, student loans, car loans and other debts — to 45 to 50 percent of a borrower’s adjusted gross income. Assuming the mortgage and taxes will eat up 33 to 35 percent, that means student loan payments, plus credit card bills, can account for no more than 10 percent or so of gross income, Ms. Sweet-Kostoplis said. That equals $833 a month for someone who makes $100,000 a year.
Hanoch Dagan (Tel Aviv) has posted The Public Dimension of Private Property on SSRN. Here's the abstract:
In this Essay I hope to explain the sense in which private property is indeed private and the way in which it is inevitably public. My starting point for this inquiry is the recent reinvigoration of the Kantian conception of private law in general and of property more specifically. This significant neo-Kantian enterprise avoids Locke’s most dubious claims and yet presents the most vigorous defense of the conceptual separation of private and public. Neo-Kantians helpfully highlight the important correlativity characteristic of private law, entailed by the bipolar structure of private law, which has significant implications for our understanding of private property. But the integrity of private law does not require the neo-Kantians’ more ambitious claims of an airtight distinction of private and public law and the exclusion of any collective or public value from our understanding of property. Quite the contrary: in order for the correlativity inquiry to start off — in order for it to be intelligible — we need to determine what exactly is the content of the parties’ rights, a determination that necessarily invokes our public values. Not every such value can, however, qualify for the task: by and large only values that participate in the regulative principle that underlies the property institution at issue — that is: only values that inform our ideal vision of the interpersonal relationship at hand regarding the pertinent resource — can be legitimately taken into account. The diversity of these regulative principles in property and their reliance on our public values need not be confusing and should not be considered demeaning to the private nature of property. Rather, properly understood, this diversity is the precondition for property’s crucial role in supporting diverse forms of interpersonal interaction and thus diverse forms of human flourishing. Thus, this public dimension of private property is, at the end of the day, what enables property law to adequately recognize and promote the autonomy-enhancing function of pluralism and the individuality-enhancing role of multiplicity.
Thursday, April 26, 2012
All good mottos need to be short, memorable, and preferably written in some fear-inducing Latin. Under these criteria, the States are just teeming with problems. Is "by and by" even a motto? And, seriously, California? You're going with "Eureka"? While we're at it, someone absolutely needs to re-evaluate the situation in Michigan - that's just a catastrophe.
Maybe it's just the thrill of exams in the air, but for my money Oklahoma has the best motto: Labor omnia vincit (Labor conquers all things). Of course, it seems that the Oklahoma House of Representatives has voted to dump their teriffic motto in favor of "Oklahoma - In God We Trust!" Note to Oklahoma; If your state motto needs an exclaimation point, you're probably doing it wrong.
Here's an easy to read list.
(Map designed by Emily Wick. See her cool stuff here)
The New York Times reports on a simmering battle in San Diego:
At issue is how much the [Metropolitan Water District] should be charging San Diego to use the district’s pipes to transport water the county bought elsewhere. (San Diego officials have made a concerted effort to expand the sources of their water over the years — including a long-contested, substantial transfer of Colorado River water from inland farmers — so they are not as reliant on the district as they once were). San Diego has four seats on the district’s 37-member board, and there is little incentive for other communities to entertain San Diego’s argument: When San Diego pays less, everyone else pays more.
(photo: Aquaduct carrying water to southern california by hall.chris25)
Sarah Schindler (Maine) has posted The Future of Abandoned Big Box Stores: Legal Solutions to the Legacies of Poor Planning Decisions (Colorado) on SSRN. Here's the abstract:
Big box stores, the defining retail shopping location for the majority of American suburbs, are being abandoned at alarming rates, due in part to the economic downturn. These empty stores impose numerous negative externalities on the communities in which they are located, including blight, reduced property values, loss of tax revenue, environmental problems, and a decrease in social capital. While scholars have generated and critiqued prospective solutions to prevent abandonment of big box stores, this Article asserts that local zoning ordinances can alleviate the harms imposed by the thousands of existing, vacant big boxes. Because local governments control land use decisions and thus made deliberate determinations allowing big box development, this Article argues that those same local governments now have both an economic incentive and a civic responsibility to find alternative uses for these “ghostboxes.” With an eye toward sustainable development, the Article proposes and evaluates four possible alternative uses: retail reuse, adaptive reuse, demolition and redevelopment, and demolition and regreening. It then devises a framework and a series of metrics that local governments can use in deciding which of the possible solutions would be best suited for their communities. The Article concludes by considering issues of property acquisition and management.
Wednesday, April 25, 2012
The Metrotrends blog does some digging:
This is a tough question. The answer is that a few families may be trickling into homeless shelters, but probably not immediately after foreclosure, and not on a wide scale. Some limited evidence from DC shows this is the case. The rest of the answer requires some sleuthing. HUD data show that almost a quarter of families that entered shelter in 2010 came directly from a home they owned or rented. It is unclear how many of these situations are foreclosure related because shelters are not required to track this information. Plus, shelters are often a last stop on the residential instability road. Families facing foreclosure may move into a rental unit or double up with friends or family first. If these situations become unsustainable for whatever reason, the next stop may be the shelter.
Ilya Somin follows up on the rent-control-as-takings case that had moved through the New York courts:
The Supreme Court today decided not to hear Harmon v. Kimmel, an important case addressing the question of whether rent control can ever amount to a taking requiring compensation under the Fifth Amendment. I previously blogged about the case in this post, where I urged the Court to consider the issue, and rule that rent control can be a taking, at least in a case like this one where the property owner is required to continue renting the property indefinitely, even if he or she would prefer to devote the land to a different use. I also pointed out that there are other ways of providing affordable housing for the poor that are much more effective than rent control, and create fewer harmful side effects.
The case had been relisted by the Court, which suggests that at least some of the justices were taking an interest in it. Hopefully, the Court will revisit this issue in the future.
Gregory Stein (Tennessee) has posted Modern Chinese Real Estate Law: Property Development in an Evolving Legal System (Book Chapter) on SSRN:
This book offers a detailed account of how the Chinese real estate market actually operates in practice, from both legal and business perspectives. My goals are twofold. First, I seek to establish and describe how the Chinese real estate market, with so few written laws, actually functions. How do real estate professionals operate on such a large scale when they are not sure what the applicable law is or how it will be applied? Second, I aim to address the broader question of how a huge nation can achieve such dramatic levels of economic development so rapidly while its legal system is still so unsettled. In what ways does China force us to reconsider the traditional model of economic growth and expansion, which assumes that legal and institutional development is a prerequisite to economic growth?
Part I of the book, which includes this chapter and Chapter 2, offers introductory material and some background information, along with my preliminary observations and conclusions. Part II, encompassing Chapters 3 through 10, discusses specific sub-topics within Chinese real estate law and practice and examines each of these sub-topics in detail. These chapters are designed to provide a thorough analysis of how Chinese experts have been managing to function so successfully in a nation with a rapidly changing legal system. Part III, which consists of Chapters 11 and 12, shifts the focus considerably, by discussing conventional law and development theory and its application within China. The traditional theory holds that a firmly established legal structure is an essential precondition to significant economic development. These chapters ask how the theory can be reconciled with China’s experience during the past quarter-century. Finally, Part IV offers some conclusions.
Tuesday, April 24, 2012
As longtime readers will know, I have a grudge against bikeshare programs. I think they're bougie, and weirdly utopian, and a misuse of public dollars. Well, U.S. News has a nice, short article that lays out the economic case against bikeshare. Here's one thing I didn't know:
Bike sharing is costly because it requires more work than simply letting people ride and changing the occasional flat tire. One of the biggest operating costs involves trucking the bikes from full docking stations to empty ones. [. . .] "There's a significant problem with redistributing bikes, mainly in the peak direction at the peak hours, and outside of downtown in off-peak hours," he says. He also points out that in hilly cities, there can be a glut of bikes in lower-lying areas but scarcity at the tops of hills, where people are less likely to ride.
And, sure, I understand that lots of public transportation doesn't turn a profit. But I'd much rather see the money that cities are throwing at bikeshare go toward stuff that will actually improve the lives of the urban poor - like building bus stop shelters or digital signs that could provide information about when buses will arive.
(photo: Rathausmarkt Bus Station, Hamburg, Germany by Matt Yglesias)
Robert Adler (Utah) has posted The Ancient Mariner of Constitutional Law: The Declining Role of Navigability (Washington University Law Review) on SSRN. Here's the abstract:
For the first time in three decades, in its 2011-2012 Term the U.S. Supreme Court decided a case involving “navigability for title,” in which the issue of whether a river or other body of water is navigable determines whether a state has owned the beds and banks of the waterway since statehood. PPL Montana, LLC v. State, __ S. Ct. __, No. 10-218, 2012 WL 555205 (2012). The Court held that, in determining navigability for title, courts must focus on discrete segments of the river rather than the river as a whole, and that evidence of current navigability can only be used in limited circumstances to prove navigability at statehood. Under this ruling, as time passes it will become increasingly difficult for states to prove that a river was navigable at statehood, particularly where historical records are scarce.
The PPL Montana case, however, raises more fundamental questions about the continuing role of navigability as a central tenet of U.S. constitutional law, for which it serves several distinct but related purposes. In addition to the navigability for title test, slightly different navigability tests govern the geographical scope of federal authority under the Commerce Clause and the federal navigational servitude, and of Article III admiralty jurisdiction. Each of these doctrines dates to a time when rivers were our most important avenues of commerce. Waterways continue to serve as major avenues of commerce. Through the lens of twenty-first century science and values, however, rivers serve a much broader range of public purposes, such as water supply, biodiversity and habitat, fish and wildlife production, recreational use, flood control and watershed protection, and pollution assimilation. The role of navigability has declined accordingly for Commerce Clause purposes, but not for purposes of allocating public versus private proprietary rights in rivers and other waters. This article suggests that while navigability obviously remains relevant for some constitutional purposes, its role should diminish as the value of navigation as the main public function of waterways continues to decline relative to other public uses and values.
Monday, April 23, 2012
The British gameshow, "Golden Balls," culminates with a version of the Prisoner's Dilemma, where the two contestants have to decide whether they're going to "split" or "steal" a pot of money.
If they both choose to "split," they divide the money evenly. If one opts to "split", and one opts to "steal," the one who "steals" gets the entire amount at stake. And if they both opt to "steal," then neither get any money.
You have to watch the video to appreciate the legendary move that one contestant pulled:
(HT: WIll Baude)
Over at Environmental Law Prof, Tim Mulvaney responds to the Wall Street Journal op-ed on land use rules and disaster relief that we linked to last week. To recap, the editorial unfavorably compared Tuscaloosa's "top-down" response to rebuilding, with the more business-friendly approach taken by Joplin, MO. Tim's takehome point:
It is not clear that baseline [the op-ed chooses to measure success]—simply quantifying the number of, or the speed with which, permits are issued or buildings are repaired or reconstructed—is an appropriate metric for a recovery’s success. [. . .] While . . . [Tuscaloosa's mayor] vaguely referred to the long-term focus of Tuscaloosa’s recovery, it would have been interesting to hear a more spirited defense of the advantages of such an approach in light of Beito and Smith’s utter rejection of it. It seems that expedient post-disaster comprehensive planning can breed a high quality and safe rebuilding effort that demonstrates a respect and concern for long-term consequences for both communities and individuals—and public and private property rights—and is conducted in a fair, transparent manner.
Eduardo Penalver (Cornell) & Gregory Alexander (Cornell) have posted An Introduction to Property Theory (book chapter) on SSRN. Here's the abstract:
This book surveys the leading modern theories of property – Lockean, libertarian, utilitarian/law-and-economics, personhood, Kantian, and human flourishing – and then applies those theories to concrete contexts in which property issues have been espe- cially controversial. These include redistribution, the right to exclude, regulatory takings, eminent domain, and intellectual property. The book highlights the Aristotelian human flourishing theory of property, providing the most comprehensive and accessible introduction to that theory to date. The book’s goal is neither to cover every conceivable theory nor to discuss every possible facet of the theories covered. Instead, it aims to make the major property theories comprehensible to beginners, without sacrificing accuracy or sophistication. The book will be of particular interest to students seeking an accessible introduction to contemporary theories of property, but even specialists will benefit from the book’s lucid descriptions of contemporary debate.
Saturday, April 21, 2012
Before 1887, the federal government generally allowed tribes their own property law. A few tribes had agreed to dividing the reservation lands into individual parcels, but most did not. Tribal property arrangements were varied, but many included some private property rights. The Yankton Sioux, for example, recognized private rights in timber, if the owner had expended some effort. When the reservation was dividing into individual parcels, the allotting agent refused to honor pre-existing arrangements. Once it was clear that the government would not honor private property rights in timber, all timber was cut and sold.
Whatever economic or moral qualms the allotting agent refusal raises, he adhered to the law. Indians had no right to standing timber, since theirs was a mere right of occupancy. United States v. Cook, 86 U.S. 591, 592 (1873).
Source: Leonard A. Carlson, Indians, Bureaucrats, and Land: The Dawes Act and the Decline of Indian Farming 88 (1981).
Friday, April 20, 2012
C.C. Wang, the father of wedding dress designer Vera Wang, was a very rich oil tycoon. Of interest to property profs, C.C. Wang's estate has just prevailed in a nasty bit of litigation with his mistress of 30 years, Betty Phillips. Wang and Phillips met in the early 1980s and carried on a pretty hot & heavy affair over the course of two decades; he lavished her with millions of dollars worth of gifts, flew her all over the world, and gave her a black AmEx card.
Everything went smoothly until Wang suffered a stroke in 2004, and Phillips rushed from Singapore to see him. When Phillips arrived in New York she was handed a curt letter that set forth Wang's understanding of their "long term friendship:"
[B]y this letter I am making it absolutely clear to you as I did in the past, that I have no intention of marrying you and that under no circumstance whatsoever will we ever be married to each other. [...] Further, I have already adequately provided for you financially and there will be no further financial transfers from me to you. Please confirm that you waive any claim of any kind or nature against me, my family or my estate. [...] Please do not take the formality of this letter as an affront to you but only as a way of preserving the memories we have of our friendship over the years.
Zing. The letter closed with a request, "I would appreciate your signing the copy of this letter indicating your agreement to the foregoing." In 2006, Wang passed away. Betty Phillips brought suit, claiming she had a verbal promise from Wang that she would get a $10 million lump sum payment after his death, and $150,000 a year.
Well, a judge now says that Phillips' signature on the letter means she isn’t entitled to any part of C.C. Wang's fortune. “There is no proof she was forced to sign the letter,” the judge wrote Wednesday. (see here for an actual copy of the letter)