Friday, May 16, 2014
A touching and sad story from Andrew Sullivan:
Well, the procedure went well yesterday and I’m a little sore but fine. What’s not so fine is that they lost my wedding ring. I’d already changed into my OR clothes when a nurse noticed my ring was still on my finger. She asked to take it with my cellphone and said she’d put it in the bag in my locker. In the understandably woozy aftermath, as I prepared to leave, I found my phone in the bag but not the ring. I’ve been told they would have been together in a plastic ziplock bag inside the bigger clothes bag, but I only remember finding my phone loose among my clothes. I wasn’t fully altogether so forgive myself for not checking for the ring before I left. But last night, halfway through the Daily Show, I got that panicked feeling as I reached almost instinctively for my ring and it wasn’t there. Today, after searches and several phone calls, the ring has not been found. It was probably thrown out in the empty big bag I left behind.
I truly feel ill about this. I’m not at all a possessions-freak; in fact, I am wildly indifferent to things in general. But that little band of gold? After a lifetime of struggle for the right to marry and the blessing of finding my other half? I’m genuinely bereft. Yes, I’ll try and replicate it and get a new one. But knowing that that piece of metal had been on my finger continuously since the day I got married was, well, priceless. And every few minutes, I get this sudden sinking lurch in my gut when I remember what I’ve just lost.
It’s just a thing, Aaron reassures me. But this time, that ‘just’ seems inadequate. It keeps stinging.
Jerry Long (Idaho) has posted Making ‘Conservation’ Work for the 21st Century – Enabling Resilient Place (Washington Journal of Environmental Law & Policy) on SSRN. Here's the abstract:
During the New Deal, as part of a larger effort implementing Progressive-era “conservation” regimes, the federal government authorized the structurally-invasive Flood Control Act of 1936. At the same time, the Standard State Soil Conservation Districts Law promoted the creation of local, place-based efforts to protect or restore locally-valued resources. “Conservation” thus came to signify both the invasive, structural, engineering approach of mid-20th Century flood control, and the local, more responsive and flexible nature of soil conservation districts. But our understandings of our place in the natural world have changed subtly but significantly over the past century. Any legitimate natural resource regime must achieve its resource management goals while balancing its demands with local cultural expectations, which now generally include some desire to protect the natural environment. This article argues – using a case study focused on a small flood control district – that local conservation districts can be used to implement 21st-Century understandings of “conservation” that more accurately reflect local culture and needs. These locally-driven and place-based conservation efforts can improve and protect the aesthetic, health, ecological, and economic resources of a particular landscape, even as they manage that landscape – in part – to satisfy human needs. A system succeeding on all goals would be truly socio-ecologically resilient, promoting resilient ecosystems, a resilient local culture and economy, and a resilient local legal system – together creating a resilient place.
Thursday, May 15, 2014
Bad news: (at least for our great-great-grandkids):
The collapse of the western Antarctic ice sheet is inevitable and is already underway, scientists said on Monday.
The melt will cause up to four meters (13 feet) of additional sea-level rise over the coming centuries, devastating low-lying and coastal areas around the world – from Bangladesh to New Jersey – that are already expected to be swamped by only a few feet of sea-level rise.
But the researchers said the sea-level rise – while unstoppable – was still several centuries off, potentially up to 1,000 years away.
A city that's number one for bars per capita and number two for pizza places? Clearly we've found Shangri-la, and it is on the banks of the might Monongahela. Why Pittsburgh?:
"My gut is that we are skewed because the geographic area of the 'city' of Pittsburgh is very small," Mr. Joyce said. "A couple of miles from Downtown in any direction and you're out of Pittsburgh. So the concentration of pizza spots in Pittsburgh neighborhoods and entertainment spots — think South Side or the Strip (District) — make our numbers look more impressive than perhaps they really are."
R.J. O'Hara of Flaherty & O'Hara P.C., a Downtown law firm that specializes in liquor licenses, also noted the city's population has declined steadily over the last several decades, likely sending that ratio higher.
Another factor is Pennsylvania's unique take on its liquor license system. "Liquor licenses have a value associated with them, and they're treated like an asset so it makes sense for someone to hold on to them. They're lienable," Mr. O'Hara said. "It's not like that in other states."
Liz Rinehart (Maryland - Student) has posted Zoned for Injustice: Moving Beyond Zoning and Market-Based Land Preservation to Address Rural Poverty on SSRN. Here's the abstract:
This paper exams the role market-based land conservation tools play in exacerbating rural poverty by stymieing needed development. After surveying the ways in which governments have used zoning to inflict environmental injustice on disenfranchised groups, the paper concludes that market-based land conservation tools, as an extension of traditional zoning, present the same potential for environmental injustice by forcing rural communities to bear more than their share of the burden for land preservation. The state of Maryland's current land conservation program is presented as an example of a successful preservation program that does not consider environmental justice risks to rural populations. To maintain a conservation goal without creating obstacles to rural development, the paper proposes a micro-mixed use form of zoning instead of large-parcel conservation.
Wednesday, May 14, 2014
CALL FOR PRESENTERS
AALS Section on Property
“The Place and Scope of Economic Analysis
within Competing Conceptions of Property”
2015 AALS Annual Meeting
January 2-5, 2015
The AALS Section on Property is pleased to announce this Call for Presenters for its program during the 2015 AALS Annual Meeting in Washington, D.C. The Section’s broadly-themed program, entitled “The Place and Scope of Economic Analysis within Competing Conceptions of Property,” will include a diversity of opinions on the proper place, scope, role, and utility of economic analysis in understanding, evaluating, and comparing varying conceptions of property. Confirmed speakers include Eric Claeys (George Mason University School of Law), Henry Smith (Harvard Law School), Laura Underkuffler (Cornell Law School), and Lua Yuille (University of Kansas School of Law). Through this Call for Presenters, the Section seeks one additional speaker who will advance this session’s broad theme and complement the scholarly perspectives of the confirmed speakers.
Full-time faculty members of AALS member law schools are invited to submit a one-page abstract of their presentations to Timothy Mulvaney (Texas A&M University School of Law), Chair of the AALS Section on Property, at email@example.com by June 20, 2014. A review panel consisting of five property scholars will select a submission for inclusion in the program and notify the selected presenter by mid-July. The selected presenter will be responsible for paying his/her annual meeting registration fee and travel expenses.
There is no publication commitment associated with this panel. However, the Texas A&M University Law Review graciously has offered to publish essays or articles authored by any or all of the presenters on the topic of the panel.
Please feel free to direct questions to Professor Mulvaney at firstname.lastname@example.org.
But the law of your jurisdiction may vary:
Many municipalities within the states and provinces where such toplessness is legal have ordinances, however, that prevent such a liberal dress code in public places such as parks, beaches, etc. under the guise of “disorderly conduct” or “public lewdness” related to their “nude” display. While most of these ordinances are likely illegal themselves, they continue to be enforced and will continue to be so until they are challenged in a court of law.
Tuesday, May 13, 2014
Writing in the New York Times, Thomas Edsall thinks through the viability of fighting inequality from the bottom up. His take-away points:
There is no question that demographic diversity and a solid stratum of high net worth taxpayers in key cities provide fertile ground for liberal politics. The larger question is whether the current left-leaning urban agenda is restricted to small elite of well-off municipalities with substantial resources. If so, the cities equipped to finance major enhancements will leave their less well-off counterparts sinking ever deeper in the hole.
Urban America is now on a reconnaissance mission for progressive politics. What we’re still waiting to find out is whether the policies and programs developed in the nation’s thriving urban core will prove to be broadly applicable. Can the new progressive mayors lay the groundwork for a national agenda, or will bold and innovative policy experiments that privilege New York and Seattle fail their disadvantaged cousins like Stockton, Detroit, Buffalo and Baltimore?
Carol Rose (Arizona) has posted The Law Is Nine-Tenths of Possession: An Adage Turned on Its Head (Book Chapter) on SSRN. Here's the abstract:
This chapter explores the adage that "possession is nine-tenths of the law." At face value, the adage would have it that the law of property follows from the facts on the ground - implicitly, the results of superior power, as in a game of Hawk/Dove or Chicken, where one party defers and the other takes the prize. Courts have distanced themselves from this view, however, and for good reason. It is only in times and places where the law has little force or none at all that possession flows simply from superior force. On closer examination of the legal meaning of possession - especially in two areas where possession supposedly matters, first possession and adverse possession - it emerges that for legal purposes, "possession" generally means acting the way an owner would. Thus for legal purposes, legality, or at least the appearance of legality, determines the meaning of possession, rather than the other way around.
Monday, May 12, 2014
Slate takes a look at the conspiracy theory cum increasingly-effective-political-movement that has scuppered a number of sustainable growth projects around the country:
Agenda 21 [is] a nonbinding resolution that was signed by President George H.W. Bush and 177 other world leaders at the end of the United Nations’ 1992 Earth Summit in Rio de Janeiro. The effort was hailed at the time as an important, albeit voluntary, action plan to promote sustainable development in the face of a rapidly expanding global population . . .
Not everyone forgot about it, however. Agenda 21 remained front and center for a subset of right-wing conservatives who warned that it was a harbinger of a looming new world order that would culminate with the seizure of land and guns, and an end to the American way of life. If that last part sounds like the plot of a dystopian novel written by Glenn Beck, well, that’s because it is. [...]
The hyperbolic nature of that rhetoric quickly seeped into state legislatures around the country. Two years ago Georgia Senate Majority Leader Chip Rogers used a closed-door briefing—video of which was later obtained by Mother Jones—to warn his Republican colleagues that Obama and his allies were relying on a “mind-control technique” to ensure that the plan for a totalitarian environmental government would proceed as planned. State Rep. Mike Moon, the lead sponsor of the bill now winding its way through the Missouri legislature, picked up the baton earlier this year, assuring his fellow lawmakers at a hearing that one of Agenda 21’s goals was to “elevate nature above man.”
Gerald Korngold (New York Law School) has posted Conservation Easements and the Development of New Energies: Fracking, Wind Turbines, and Solar Collection (LSU Journal of Energy Law and Resources) on SSRN. Here's the abstract:
Conservation easements have revolutionized land preservation during the past thirty years by permitting nonprofit organizations and governments to hold rights that prevent fee owners from altering the natural and ecological features of their land. There has also been an increase over recent years in the development of new energies, both renewables (solar and wind) and carbon-based (oil and gas) through the use of hydrofracturing combined with horizontal drilling (“fracking”). Questions have begun to emerge whether and how these two major directions — conservation easements and new energy development — are compatible, yielding a variety of reactions and answers.
There have been some indications of conflicts coming to the fore such as a few decided cases involving fracking on conservation easement land, reports of differing views among conservation organizations about drilling on easement property; and community debate about siting wind turbines on easement land. This article examines the tension between conservation easements and new energy trends.
Specifically, the article explores whether new energy creation can take place on a property that is subject to a conservation easement in light of the parties’ express agreement and argues for specific interpretative devices that will best find the parties’ intention, while respecting public policy considerations, when that intention is not made clear in the writing. It also analyzes the effect of the Internal Revenue Code and how federal deductibility has driven structuring of transactions and perhaps state policy goals. The article then examines whether a conservation easement subsequently can be amended by the fee owner and easement holder to permit new energy development and who must participate in this process. The article suggests that the rules concerning modification and termination need to be clarified. The current confusion potentially frustrates environmentally rational decisions and the vindication of other public policies.
Finally, the article explores non-consensual alterations to conservation easements — by judicial action or eminent domain proceedings — that would permit new energy activities on the land and concludes that they are of limited application. Throughout, the article examines the issue of conservation easements and new energies by juxtaposing “environmentally friendly” renewables and “environmentally threatening” fracking in order to provide a deeper inquiry into the question and to force the various players to search for a result with fewer predispositions about preferred outcomes.
Friday, May 9, 2014
By now, most of you have probably already seen that Aspen has adjusted its stance on the Dukeminier property casebook. To briefly recap, Aspen sent out a rather vague email, indicating that students would need to return their books after the conclusion of their property course. This would effectively kill the market for used casebooks. Justified outrage ensued.
In the last twenty hours, Aspen has adjusted course. In short, students will have a choice to either buy the paper textbook and keep it, or they can choose to rent a digital version and the paper version (and send the paper book back at semester's end).
I found it really surprising that Aspen seemed so unprepared for the blowback. We're property professors, after all. Take sticks out of our bundle at your own risk. Yesterday, Vikram Savkar, the Vice-President of Wolters Kluwer's Legal Education Division, was kind enough to talk with me about the roll-out. Here are my general impressions from that conversation:
-- I think Aspen is really working hard to figure out how digital technologies can to improve casebooks and student learning. One goal of the connected casebook series is to integrate Aspen's casebooks with its popular supplemental materials, like the Examples and Explanation series. If a student is having trouble with Rule Against Perpetuities, they can click on a link in their digital casebook and it will take them to additional problems and hypotheticals. These extra materials could be curated by textbook authors. I can see the value in that - especially if students don't have to shell out extra money for a random & crappy hornbook (which many of them feel the need to do).
-- Aspen understands the rollout has been "clumsy" and that they did not provide enough information about the planned changes upfront.
-- I think Aspen might have overestimated both the quality of its product and the general laziness of the professoriate. Dukeminier is a very good book. I think it's the best-selling legal textbook in the country. But there are other terrific books out there. It's a lot of work to switch books and I'd rather not do it, but I will if it's going to cost my students a lot of money every semester.
-- A big part of the problem is that Aspen hasn't announced any pricing information. I'm actually ok with a leased textbook if Aspen is going to charge my students at a much lower price. Most students sell their books back anyway. If Aspen wants to capture that money instead of it going to the campus bookstore, I don't really care. However, I won't make every class of students purchase a new book at full price. Property law just doesn't change that much. It already feels a little ridiculous that we get a "new" edition (that has all the same cases) every three or four years.
For now, I'm happy enough with the compromise that Aspen has articulated. And I'm really thrilled that so may property folks took the time to express their concerns for student welfare.
Jessica Shoemaker (Nebraska) has posted No Sticks in My Bundle: Rethinking the Indian Land Tenure Problem (Kansas Law Review) on SSRN. Here's the abstract:
This article analyzes the modern rule that individual Indian co-owners of allotted land retain no direct rights to use and possess their own property without a lease or other prior permission from their co-owners. This special Indian no-use and no-possession rule is of a relatively recent vintage, and it is contrary to the rights of co-owners in nearly every non-Indian jurisdiction. This rule is also ahistorical and contrary to current federal policy to promote Indian use of Indian land. While other scholarship on Indian land tenure has focused on the practical challenges of coordinating among so many co-owners in Indian lands’ fractionated state and on the limits imposed by the federal trust status’s alienation restraints on these lands, this article argues that the lack of legal possession and use rights for Indian co-owners is a third and previously overlooked factor in the problem of Indian self-determination. This article ultimately concludes that the federal co-ownership rules for individual Indian lands are poorly designed and are exacerbating other land tenure and social and economic problems in Indian Country. This article ultimately proposes tribally driven solutions to create a more rational and culturally congruent property system for indigenous people.
Thursday, May 8, 2014
Last week many of us got an email from Aspen (Wolters-Kluwer) about the upcoming new edition of the Dukeminier Property textbook (disclosure: I currently use the 7th edition and like it).
The text of the email (which I've included after the jump) raises some very serious questions. It appears that Aspen is going to provide a physical copy of the book and then require students to return their copy at the end of the semester (in return the students get lifetime access to Aspen's digital property materials). On its face, this appears to be an attempt to eliminate the used textbook market.
Unsurprisingly, a lot of professors think this looks unfair to students (and maybe illegal under the first sale doctrine). It's worth checking out Rebecca Tushnet's and Josh Blackman's blogs on this issue. Paul Levy suggests a boycott of Aspen. And James Grimmelman has started a Change.org petition (which I've signed).
What's really shocking to me is that Aspen (Wolters-Kluwer) seems so utterly unprepared for people to question this new program. They sent out an email that announces a major new initiative but it includes almost none of the important details. How much will the book cost? Will they go after students that don't return the book? How will they get bookstores to go along with this? Are they going to destroy the returned books?
Even stranger, Aspen doesn't seem to know the answers to these questions. I spoke with my school's Wolters-Kluwer representative and a higher-up at corporate. They both insisted that there are "a lot of misconceptions" floating around in the blogosphere but neither wanted to answer any questions yesterday. It seems like they're still finalizing their policies on the new "connected casebook" series. Eek. I'm scheduled to talk with the Vice-President today and I'll report what I hear (though I expect we'll all get an e-mail from Aspen about the kerfuffle quite soon).
Gerald Dickinson (Independent) has posted Inclusionary Eminent Domain (Loyola Chicago Law Journal) on SSRN. Here's the abstract:
This Article proposes a paradigm shift in takings law, namely “inclusionary eminent domain.” This new normative concept provides a framework that molds eminent domain takings and economic redevelopment into an inclusionary land assembly model equipped with multiple tools to help guide municipalities, private developers and communities construct or preserve affordable housing developments. The tools to achieve this include Community Benefit Agreements (“CBAs”), Land Assembly Districts (“LADs”), Community Development Corporations (“CDCs”), Land Banks (“LABs”), Community Land Trusts (“CLTs”) and Neighborhood Improvement Districts (“NIDs”). The origin of the concept derives from the zoning law context, where exclusionary zoning in the suburbs excluded affordable housing for the poor. Courts intervened, applying exclusionary zoning doctrines, which led to the enactment of inclusionary zoning programs to achieve a fair share of housing. Exclusionary eminent domain in urban areas, similarly, has displaced and decreased the stock of or denied access to affordable housing through the power of takings. Under an exclusionary eminent domain doctrine, courts would apply heightened review to condemnations in a locality that has less than its fair share of affordable housing. But in a post-Kelo era of takings, doctrinal solutions may not be enough. Analogous to inclusionary zoning, inclusionary eminent domain helps us rethink how to fix the exclusionary eminent domain phenomenon that displaces low-income residents. Indeed, this Article moves us beyond the doctrinal muddle and instead incorporates both the intellectual musings of takings and zoning law with an assessment of how innovative tools can be practically applied to construct and preserve affordable housing in eminent domain takings for economic redevelopment.
Wednesday, May 7, 2014
Jim Kelly (Notre Dame) has posted A Continuum In Remedies: Reconnecting Vacant Houses to the Market (St. Louis University Public Law Review) on SSRN. Here's the abstract:
For decades, America’s older, undercrowded cities struggle with neighborhoods beset by vacant houses that seemingly have no connection with a functioning real estate market. A nationwide foreclosure crisis has brought even greater attention to the need for inner-city communities to address vacant house nuisances.
This paper argues that recent developments in property theory help us understand and complete reforms of legal remedies that address this continuing national need.
Traditional, in personam code enforcement remedies emanate from a legal understanding of real estate ownership as the strongest of property-rule-protected entitlements. Local government authorities hold owners directly accountable for any failures to address specific property problems through imposition of fines and threats of contempt. These work fairly well against owners amenable to such pressures and for properties in functioning neighborhood real estate markets. But, in areas that have many abandoned properties, owners are unable to obtain the resources to complete repairs and, even in healthier neighborhoods, owners may strategically evade conventional enforcement or be genuinely incapable of fixing up the property or transferring it to someone who can.
In situations where the property-rule entitlement itself prevents a solution, the ultimate real estate liquidation remedy of eminent domain may seem called for. This paper contends that condemnation, in that sense, should be set aside in favor of remedies that liquidate the owner’s interest based upon failure to meet code obligations and/or pay property taxes. Recent scholarship in legal procedures that make use of the boundary area between property-rule and liability-rule entitlements show us the advantages of and design parameters for reforms to existing tax sale foreclosure laws and enactment of in rem code enforcement remedies that will facilitate reconnection of vacant properties with inner-city real estate markets.
Tuesday, May 6, 2014
Sally Satel, writing in the Sunday Review section, comes out in favor of a modified market in organs:
THE national transplant list just passed a morbid milestone: More than 100,000 people now wait for kidneys. [...] We can’t solve the issue merely by getting more people to sign organ donor cards [...]
To make a real impact on kidney shortage, we have to find ways to persuade more healthy young and middle-aged people to give a kidney to a stranger. Here is a plan to do just that. Donors would not get a lump sum of cash; instead, a governmental entity, or a designated charity, would offer them in-kind rewards, like a contribution to the donor’s retirement fund, an income tax credit or a tuition voucher.
Meanwhile, imposing a waiting period of at least six months would ensure that donors didn’t act impulsively and that they were giving fully informed consent. Prospective compensated donors would be carefully screened for physical and emotional health, as is done for all donors now.
Avi Bell (San Diego) & Gideon Parchomovsky (Penn) have posted Governing Communities by Auction (Chicago Law Review) on SSRN. Here's the abstract:
Common interest communities have become the property form of choice for many Americans. As of 2010, sixty-two million Americans lived in common interest communities. Residents benefit from sharing the cost of common amenities – pools, lawns, gazebos – and from rules that ensure compliance with community expectations. But decisionmaking in common interest communities raises serious concerns about minority abuse and manipulation, a problem well known to all property law students. Decisions about which amenities will be provided and which rules will be enacted are typically made through some combination of delegation and voting. Delegates often act for their own benefit, and, for a variety of reasons, voting fails to capture the preferences of the community.
This Article suggests a better way. Building upon the pioneering work of Vickrey, Clarke, and Groves, we propose a novel auction system that captures the intensity of resident preferences while preserving the honesty of declared preferences. The use of auction theory induces truthful revelation of preferences by participants and reflects the intensity of preference for any given policy outcome. As a result, our system allows communities to make better decisions and makes common interest communities more responsive to the needs of residents.