Archive for the ‘Property Law’ Category
posted by Marc Poirier
This past July, the New Jersey Supreme Court handed down Borough of Harvey Cedars v. Karan, 70 A.3d 524 (2013). In one sense this is a technical case about the rules of just compensation for a partial taking. The New Jersey Supreme Court clarified the distinction between “special benefits,” which can be offset against the compensation owed for a partial taking, and “general benefits,” which cannot. Where a dune restoration project would provide protection to a home in immediate proximity to the shore, if the value of that protection can be determined, it should be deducted from the compensation owed, even though the dune provides flood protection of the same kind—but in significantly less degree–to rows of houses further back from the ocean. The New Jersey Supreme Court determined that an evidentiary ruling excluding evidence of the benefit was erroneous as a matter of law, and remanded for a new trial. All five Justices participating in the opinion agreed.
The case is of more general interest because the public project involved concerned construction of a dune barrier on private property along New Jersey’s barrier islands. It’s a disaster law and climate change case. Dune projects have been underway here for some time–this one began in 2008–with the United States Corps of Engineers doing the heavy lifting, state and municipalities cooperating and chipping in a smallish part of the cost. All of Long Beach Island is part of a big old beach and dune project. And dune projects have gained special salience after Superstorm Sandy.
In the Borough of Harvey Cedars, on Long Beach Island, dune construction required the cooperation of all 82 beachfront property owners. Sixteen of them declined, forcing the municipality to begin condemnation proceedings for a strip of each recalcitrant property owner’s land. In this particular case, the Karans refuse to grant a dune easement over about a quarter of their property; the easement included a dune 22 feet high, replacing one 16 feet high. A right of public access came along with the new dune as well. So the Karans wound up with a view of other folks’ beach recreation activities on the higher dune, not the water view they had previously enjoyed. Evidence supporting the argument that the Karans’ $1.9 million home would benefit from the flood protection afforded by the dune to the tune of several hundred thousand dollars was excluded from a jury by the trial court, on the theory that the entire community also benefitted, and that therefore the flood protection was a “general benefit” which could not legally be offset against the compensation owed the Karans. The Karan’s expert had testified that they should receive $500,000 from Harvey Cedars. The Harvey Cedars expert (from the Corps of Engineers) testified that the proper amount of compensation was $300. But he couldn’t point to evidence of benefit from flood protection because it had been excluded. The jury returned a compensation award of $375,000, principally for loss of view. You can do the math and see what this does to the possibility of any dune project. Holdouts galore. No project. Read the rest of this post »
October 31, 2013 at 11:02 pm Tags: beach restoration, dunes, easements, eminent domain, floods, Harvey Cedars, just compensation, partial taking, risk perception, Sandy, view Posted in: Constitutional Law, Environmental Law, Property Law Print This Post One Comment
posted by Marc Poirier
There’s been quite a hullaballoo nationally and regionally on this the first anniversary of Superstorm Sandy. Sandy, you will recall, pummeled the coast of New Jersey and New York for days last October, killing an estimated 285 people, destroying or damaging 650,000 homes and 200,000 businesses, leaving 8,600,000 homes and businesses without power, gas, or water, and shutting down New York City’s subway system for days, crippling the city. The estimated cost of Sandy was $65 billion dollars.
Monmouth University held an excellent online symposium about the response to Sandy on October 29, the anniversary of Sandy’s landfall. Here are youtubes of the morning and afternoon sessions.
Among the notable speakers was Coast Guard Admiral Thad Allen, who directed the national response to hurricanes Katrina and Rita, served as the National Incident Commander in the BP Deepwater Horizon blowout, and was appointed by New York Governor Cuomo to co-chair a task force on New York State’s responses to future weather-related disasters. Another notable was Christine Todd Whitman, former Governor of New Jersey and former Administrator of the United States Environmental Protection Agency. She resigned as I recall over differences with the George W. Bush administration over whether climate change was going to be a serious problem.
A pollster from and institute at Monmouth University reported that only about half the folks who were supposed to evacuate the New Jersey shore did so; and that when polled later, about the same number said they would not evacuate the next time.
And there surely will be a next time. Another speaker suggested that even a four foot sea level rise by 2100, somewhere in the mid-range of credible estimates, would drastically increase the frequency of severe floods. He offered the analogy of a basketball court. Raise the floor a few inches and you get more dunks. Raise the floor a couple of feet and all you get is dunks. Add to that that many major cities are less than five feet above sea level now – among them Hoboken and Atlantic City here in New Jersey – and that spells trouble with a capital T.
And yet there is this persistent insistence on retaking the land, rebuilding bigger and better, standing up to the storm. Read the rest of this post »
October 31, 2013 at 9:36 pm Tags: barrier islands, blue line easements, climate change, coasts, disaster, eminent domain, exactions, floods, land use, risk perception, Sandy, sea level rise, storms Posted in: Environmental Law, Property Law Print This Post One Comment
Announcing Symposium on Orly Lobel’s Talent Wants to be Free: Why We Should Learn to Love Leaks, Raids, and Free Riding
posted by Deven Desai
Think you have enough to read? Think again! I am honored to announce that Concurring Opinions will host a symposium on Orly Lobel’s book, Talent Wants to be Free: Why We Should Learn to Love Leaks, Raids, and Free Riding. The event will run from Monday, November 11 to Friday, November 15. I came to know Professor Lobel’s work as I shared some of my thoughts on intellectual property, property theory, and technologically mediated creation in her seminar, Work, Welfare, and Justice, in 2008. I was thinking about who owns your email? What about work place creation? Who owns what you come up with at work? Does it matter whether you used company technology to create and learn? Professor Lobel was digging into related questions, and it has been a blast seeing her run with them. Now we have the pleasure of her book. The accolades have been coming in from academics in law and other fields as well as the business world. Business Week, Fortune, and Harvard Business Review have run articles by Professor Lobel that draw on the insights from the book.
Professor Lobel argues that as we move deeper into a world driven by human capital and talent is in increasing demand, we have to understand that a lock-down approach to innovation is a losing strategy. Nonetheless:
Many companies embrace a control mentality—relying more on patents, copyright, branding, espionage, and aggressive restrictions of their own talent and secrets than on creative energies that are waiting to be unleashed.
Unlocking talent, setting it free as she puts it, sets up a system where everyone wins. Will our discussants or you agree? I think so, but I am sure there will be new ideas and challenges during the event. Our panelists include Professor Lobel as well as:
October 23, 2013 at 4:06 pm Posted in: Behavioral Law and Economics, Intellectual Property, Political Economy, Property Law, Symposium (Talent Wants to be Free), Technology, Trade Print This Post No Comments
posted by Marc Poirier
This blog post is the second in my series of four this month on coastal land management and disaster. It will be just a bit shorter than the last, and focuses on the efforts of one among several Jersey Shore beach communities, Long Beach Township, in Ocean County, to use shame as an incentive and punishment for beachfront property owners who have refused to negotiate easements necessary for a protective beach and dune restoration project.
First, some background. New Jersey has something like 127 miles of Atlantic Ocean shoreline – barrier islands, marshes, and inlets. All of its length is developed, with few exceptions. This practice of barrier island development goes well back into the 19th century. Long Branch, in Monmouth County (not to be confused with Long Beach), called itself the “home of Presidents”. It became accessible by rail early on, and seven nineteenth-century presidents summered there. One, James Garfield, died there, after he was shot and taken there for what turned out to be some very bad medical treatment.
Apart from the results of a few episodic impulses to preserve (among them Island Beach State Park and the Sandy Hook element of the Gateway National Recreation Area), all the rest of the buildable New Jersey shore is built. And how! There are the more exclusive enclaves, and also towns with beaches that are narrow and crowded and commercial. In most places you have to pay to get onto the beach. To the chagrin of many a first-year property student, there’s a whole case law and scholarly literature about beach access below the mean high tide line and the public trust doctrine, centered on a series of New Jersey cases. More exclusive towns still try various stratagems to exclude outsiders (What, no all day parking? No changing facilities?). Other towns just let outsiders in as daily visitors or weekly renters and take their money.
For protection against storms, much of the Jersey Shore has been reinforced with hard structures such as sea-walls and groins, which project out into the ocean and supposedly prevent sand from migrating down current. Coastal geologists generally consider what has happened in New Jersey a very bad way to manage beaches on barrier islands. It just fosters erosion and imperils structures that shouldn’t have been built there anyway. Beaches gotta move. See, e.g., Wallace Kaufman & Orrin H. Pilkey, Jr., The Beaches Are Moving: The Drowning of America’s Coastline. Read the rest of this post »
October 17, 2013 at 8:19 pm Tags: beach, climate change, disaster, dune, eminent domain, flood, Jersey Shore, just compensation, land use, sea level rise Posted in: Environmental Law, Property Law, Uncategorized Print This Post No Comments
posted by Marc Poirier
First, thanks to Concurring Opinions for inviting me back. It’s been years. What took you so long?
I plan to spend some of my month’s effort here discussing coastal land use and disasters and the law. In light of Superstorm Sandy and likely future megastorms, and given climate change and sea level rise, I can’t help noting that, whatever is going on with managing CO2 levels at a global scale, one class of disasters results from what I have come to call in conversation (and now in writing) Stupid-A** Land Use Decisions (SALUD). We build houses in harm’s way. I’ve written about the folly of allowing homes on the parts of barrier islands that are most likely to flood or wash away, noting in passing the folly of building homes on scenic hillsides subject to rock- and mudslides. In the news lately, there’s much about the costs of rescuing homes built in forests that are just waiting to catch fire. At some point, we have to disincent SALUD, or at least insist that the full cost of risk and rescue and rebuilding be reflected in the market cost of building in Stupid-A** places, and let that expense disincent. It’s very hard to do. As my own dear New Jersey Governor Chris Christie said after Superstorm Sandy, we will rebuild!
Which brings me to the case I’m discussing today. It came down last Friday. The case is Kolbe v. BAC Home Loans Servicing, LP (1st Cir. No. 11-2030, Sept. 27, 2013) (en banc), 2013 WL 5394192. It is a First Circuit en banc decision, on a 3-3 vote, failing to reverse the District of Massachusetts, which granted a motion to dismiss a putative class action seeking an interpretation of a form mortgage contract provision concerning flood insurance. Warning, I’m not an expert in all of the doctrinal areas involved, so please forgive if I miss something, but boy, is it interesting.
The provision in dispute is Covenant 4, a three-sentence paragraph required by the Department of Housing and Urban Development (HUD) to be included in all single family dwelling mortgage contracts insured by the Federal Housing Administration (FHA). Covenant 4 was established by a regulation promulgated in 1989 after notice and comment rulemaking. It allows a lender to require that the homeowner purchase insurance for “any hazards . . . in the amounts and for periods that the Lender requires.” Covenant 4 also requires the borrower to insure against loss from floods to the extent required by the Secretary of HUD. HUD requires flood insurance whenever a property is located in a “special flood hazard area,” the most risky category under the National Flood Insurance Program (NFIP) classification scheme. HUD requires flood insurance at least equal to the outstanding balance of the mortgage, that is, the lender’s stake in the property, but there is a cap of $250,000. Thus, as to hazard (but not flood), the lender clearly has authority under Covenant 4 to require further hazard insurance. But it is, arguably, unclear whether Covenant 4 empowers the lender to require a homeowner to purchase additional flood insurance. Perhaps the provision of Covenant 4 referring to requirements by HUD insulates the homeowner from lender requirements as to purchasing flood insurance. Perhaps Covenant 4′s authorization for lenders to require additional hazard insurance includes flood insurance, because floods are a type of hazard. That’s the interpretation question. Read the rest of this post »
October 3, 2013 at 11:02 am Tags: Auer, climate change, coastal land use, contract interpretation, disasters, flood insurance, forms, homeownership, judicial deference to agency interpretation, mortgages, risk perception, sea level rise, Seminole rock Posted in: Administrative Law, Contract Law & Beyond, Environmental Law, Property Law Print This Post No Comments
posted by Rachel Godsil
Thanks to the Concurring Opinion folks for inviting me back!
It has been four years since I last guest-blogged. Looking back at my archived posts, it feels a little as though time has stood still. My final post in November of 2009 was entitled “Re-Igniting the Movement for Integration” alerting readers to a conference at Howard Law School that focused on the role of integration in k-12 schools. In the post, I referenced the vexing questions surrounding integration, including the issue of when integration in a neighborhood is seen as cause for celebration and when it is decried as gentrification. The issue of gentrification has only intensified in my corner of the world – Brooklyn – and was the subject of my most recent article, The Gentrification Trigger: Autonomy, Mobility, and Affirmatively Furthering Fair Housing. In the 20 years I have lived in Brooklyn, I have both participated in and winced as neighborhoods that were abandoned in the 1960s are gradually flooded: first with hipsters, then with the stroller set looking for three bedrooms and original moldings. For those of you old enough to remember, the neighborhoods featured in Spike Lee’s “Do the Right Thing” are suddenly the places of choice for post-collegiate types from the suburbs. Ideally, policy can be developed that encourages the influx of people with capital to neighborhoods that were once avoided – but also ensures that those who have been living and working in the neighborhoods don’t experience a sense of invasion or displacement. And it will be crucial to address expressly the challenges that may arise with the changing racial and economic demographics.
I look forward to discussing this issue and others that arise this month. And here’s hoping that the shut down ends quickly!
posted by Meredith Render
I am grateful to have been invited by Danielle to join the esteemed group of guest bloggers this month at Concurring Opinions. This opportunity arrives at an interesting moment in my scholarly life. For the last few years I’ve been thinking a great deal about what “ownership” means – both when we use the term colloquially and when we mean it to connote a term of art. It is, I think, a deceptively simple idea at the core (at least on the surface of the thing). At the core, “ownership” seems to convey the idea that an “owner” may exercise a unique degree of dominion or control over a valuable entity, and that control is backed by the force of law. By some lights, the concept of “ownership” primarily articulates a relationship between the “owner” and those that are obliged to respect her ownership prerogatives (i.e. everyone else) rather than a relationship between the owner and the valuable entity itself. Others adopt a different view. But what has fascinated me the past few years is the constitutive relationship between our concept of “ownership” and the status designation of “owner.” Is “ownership” a capacity? Is it a uniquely human capacity – i.e. does it require sentience, or perhaps some degree of agency? Who (or what) is a capable of being an “owner”?
I first became interested in this question in the context of contemplating our capacity to own our own whole and living bodies, a contemplation that is detailed in my piece The Law of the Body, which is forthcoming in the Emory Law Review. In that piece, I passed upon the question of whether a person has the capacity to own her own living body – whether it falls within the extension of our concept of “ownership.” This question ostensibly raised subject/object problems (i.e. can one both be the subject (owner) and object (owned)) as well as a number of other interesting (at least to me) issues.
In particular, the idea of owning oneself raises deeper questions about ownership as a capacity. In this vein, I have read with great interest Taunya Bank’s recent posts (also here) about how “human beings can lose control over what happens to their bodies (and body parts) during life as well as after death.” Professor Banks touched upon two of the more salient (and to some degree, vexing) points about ownership (including body ownership): control and death. In almost any plausible understanding of the concept of “ownership,” it connotes some degree of control. There are two ways to think about this control. It may be that ownership refers only to legally sanctioned control. On the other hand, it may refer to “control” in the sense of the capacity to make decisions about the use or disposition of an entity. While these two senses of “control” largely overlap, they are not coterminous.
posted by Frank Pasquale
An emerging, “solutionist” narrative about drones goes something like this:
Yes, we should be very worried about government misuse of drones at home and abroad. But the answer is not to ban, or even blame, the technology itself. Rather, we need to spread the technology among more people. Worried that the government will spy on you? Get your own drones to watch the watchers. Fearful of malevolent drones? Develop your own protective force. The answer is more technology, not regulation of particular technologies.
I’d like to believe that’s true, if only because technology develops so quickly, and government seems paralyzed by comparison. But I think it’s a naive position. It manages to understate both the threats posed by drones, and the governance challenges they precipitate.
Read the rest of this post »
posted by Yale Law Journal
The Yale Law Journal Online has just published Liquid Assets: Groundwater in Texas, an essay by Gerald Torres that addresses the piecemeal management of groundwater resources in the American West. A recent Texas Supreme Court case, Edwards Aquifer Authority v. Day, 369 S.W.3d 814 (Tex. 2012), has significantly transformed the groundwater regime in Texas, and its changes are expected to inform discussion throughout the region, where water is scarce and valuable. Torres argues that Day has “sown confusion about the capacity of the state to regulate natural resources, while ignoring the science that ought to drive policy decisions.” He begins his critique with an analysis of the Texas groundwater-management regulatory system that existed prior to Day. He then examines the concept of ownership rights for groundwater in place. Finally, in light of Day, he considers alternative approaches to allocating the value and utility of groundwater.
Preferred citation: Gerald Torres, Liquid Assets: Groundwater in Texas, 122 YALE L.J. ONLINE 143 (2012), http://yalelawjournal.org/2012/12/4/torres.html.
posted by Mike Carroll
Like the other commenters on From Goods to a Good Life, I also enjoyed the book and applaud Professor Sunder’s initiative in engaging more explicitly in the values conversation than has been conventionally done in IP scholarship. I also agree with most of what the other commenters have said. I want to offer plaudits, a few challenges, and some suggestions about future directions for this conversation.
September 21, 2012 at 11:13 am Posted in: Book Reviews, Civil Rights, Culture, Cyberlaw, Economic Analysis of Law, Innovation, Intellectual Property, Jurisprudence, Law and Humanities, Law and Inequality, Politics, Property Law, Symposium (From Goods to a Good Life), Technology, Trade Print This Post No Comments
posted by Madhavi Sunder
I am moved and honored by this deep engagement with my book by this amazing array of scholars. Let me reply to each that has chimed in so far, and seek to situate my work within the broader IP discourse at the same time.
What a difference a few years make! Professor Said, who is younger than I am, arrived on the IP scene more recently, and happily she found a more plural discourse than I saw several years back. In the first few years of the new century, scholars on both the Right and Left seemed unified in their commitment both to the incentives rationale and the ultimate goal–innovation. Scholars on the Left saw the incentives rationale as limiting IP rights, because they argued that intellectual property need not offer rights beyond those necessary to incentivize creation. They also argued that too many property rights might result in an anticommons and erode the public domain. Some public domain scholars—to whom my book is both homage and reply—worried that opening IP to alternative discourses such as human rights might bolster property owners’ arguments rather than limit them.
The public domain scholars opened a space for critique in a field that was “coming of age.” In my new book, From Goods to a Good Life: Intellectual Property and Global Justice (Yale University Press 2012), I seek to both consolidate and expand that critique. I argue that we need to rethink the ultimate goal of intellectual property itself. We should seek not simply to promote more goods, but rather the capability of people to live a good life. To that end, we need to ask new questions beyond just how much intellectual production law spurs, and turn to disciplines beyond law and economics for guidance. Which goods are being produced and which are neglected under market incentives? Even when goods are produced, like AIDS medicines, how can we ensure just access to these knowledge goods? Surely access to essential medicines for people who cannot afford them is important if we believe in the dignity of all human beings. But what about access to culture, such as films, music, and literature? I argue that participation in these cultural activities is just as important – singing and dancing together and sharing stories are activities central to our humanity. They promote learning, sociability, and mutual understanding.
September 12, 2012 at 9:37 pm Posted in: Civil Rights, Feminism and Gender, Health Law, Intellectual Property, Jurisprudence, Property Law, Race, Symposium (From Goods to a Good Life), Technology, Uncategorized, Web 2.0 Print This Post No Comments
posted by Sarah Waldeck
A couple of weeks ago I wrote about how my colleague Tim Glynn and I recently examined elementary and high school rankings in Illinois, New Jersey, and Ohio, and sampled school report cards from 18 states. Our analysis, available here, demonstrates how rankings penalize socioeconomic and racial diversity and are biased toward wealthier and Whiter schools.
My prior post explained that because most ranking metrics fail to account for the achievement gap, wealthier and Whiter schools will almost always outrank diverse schools. The post also hypothesized about how the choices parents make based on these ratings help fuel neighborhood and school segregation. Now I want to discuss how alternative rankings could dampen the diversity penalty’s damaging effects.
People are drawn to the bottom-line assessment of quality that rankings provide, which means that rankings are not going to just disappear. But there is plenty of room to improve how school rankings and ratings are calculated. And herein lies a powerful opportunity to counteract the diversity penalty. As research by Michael Saunder and Wendy Nelson Espeland demonstrates, one way to mitigate the harm caused by influential ranking systems is to offer competing rankings. When a marketplace is crowded with multiple ratings, it is too loud for any single rating system to carry the day. No single ranking system will appear authoritative because each just offers information that conflicts with that offered by others.
Right now readers are probably thinking that they can’t swing a dead cat without hitting a school ranking. There are national ranking entities like SchoolDigger and GreatSchools, local magazines with “Best Schools” issues, and even some state department of education websites that provide ordinal ranks or allow users to compare one school to another. The problem, however, is that almost all of these ranking systems use metrics that ignore the achievement gap. The marketplace thus becomes an echo chamber in which wealthier and Whiter schools are rewarded and diverse schools are penalized.
The key, then, is for states to develop truly alternative rankings—ones that are sensitive to the socioeconomic and racial composition of schools. These rankings would neither penalize nor reward demographic diversity. Instead, they would measure a school’s overall quality by comparing the performance of each of its students against the average performance of the student’s demographic peers across the state. Indeed, New Mexico has already started down this road by including a variant of this methodology in its school assessments.
You can read more about this sort of methodology in our article. To be clear, however, these alternative rankings would not freeze expectations for any subgroup of a school’s population. On the contrary, a school’s ranking would benefit from better outcomes for students on both sides of the achievement gap, as well as from outperforming other schools in narrowing the gap. These competing rankings would encourage parents to dig deeper to determine whether a school is right for their children. That analysis would benefit students, schools, and communities alike.
posted by Sarah Waldeck
Those in legal education are familiar with the deleterious effects of the U.S. News rankings, but have not paid much attention to similar popular rankings of elementary, middle, and high schools. Because perceptions of public school quality often dictate where parents of school-aged children choose to live, these rankings are tremendously important.
My colleague Tim Glynn and I have recently examined rankings by private entities of schools in Illinois, New Jersey, and Ohio, and sampled school report cards from 18 states. Our analysis, available here, demonstrates that school rankings are neither accurate nor neutral measures of quality. Instead, rankings penalize socioeconomic and racial diversity and are biased toward wealthier and Whiter schools.
Most rankings use a student body’s overall performance on standardized proficiency tests to gauge school quality. This ignores the achievement gap—the well-documented phenomenon that, on average, wealthier students outperform poorer students on these tests and Asian and White students outperform Black and Hispanic students. The achievement gap is not inevitable, and educators are working hard to close it. But while the gap persists, wealthy and White schools will almost always have higher aggregate proficiency scores and thus outrank schools with a diverse mix of students. And that’s true even if a particular school serves each subgroup of its student population better than the higher ranked schools do.
This diversity penalty exists across popular school ranking systems in all areas of the country. Consider the website SchoolDigger and its rankings of New Jersey and Illinois high schools. Millburn High School—located in an affluent northern New Jersey town and often described in the media as one of the best high schools in the state—ranked 22 for tested year 2010. (The top spots were held by magnet schools that pre-select their students based on academic achievement.) The high school in neighboring South Orange-Maplewood—a far more socioeconomically and racially diverse community—ranked 179. But isolating performance at these two schools by demographic subgroup creates a very different impression of relative school quality. For example, when the two schools are re-ranked based just on the test scores of White students, they are in a virtual dead heat. The high school in Montclair, another nearby diverse community, performs comparably. Similarly, in Illinois, New Trier Township High School—which draws students from several affluent Chicago suburbs—ranked fifth for tested year 2010. Nearby Evanston High School—located in a far more diverse community—ranked 126. But when the two schools are re-ranked in ways that account for the achievement gap, they are essentially tied. Oak Park & River Forest High School, another diverse Chicago suburban school, is competitive as well. This pattern repeats itself in different years and different states and for elementary schools as well as high schools.
Parents should care about more than just the performance of their child’s demographic peers. But rankings that rely on aggregated scores are a misleading indicator for all demographic subgroups, including low-income students and historically-disadvantaged minorities. The problem is not that disadvantaged subgroups drag down aggregated test scores. Rather, by lumping all students together without regard for socioeconomic and racial differences, rankings reveal little about how a school actually serves its student population.
Because of the achievement gap, diverse schools in which both disadvantaged and advantaged students outperform their demographic peers will often still have lower aggregated proficiency scores—and hence lower rankings—than schools with mostly wealthy and White students. The rankings therefore penalize diversity and reward wealth and White racial homogeneity. Parents who rely on rankings will conclude that wealthy and White schools are better, even when the statistics show their children would do just as well or better in a diverse school.
Many parents see the value of diversity and would happily opt for schools that are both diverse and academically strong. And integrated learning environments benefit all students. But popular school-ranking systems suggest, contrary to reality, that academic strength and diversity seldom co-exist. When parents choose school districts based on rank, those with means will select away from diverse schools and the neighborhoods in which they are located. This distortion of local housing markets contributes to school and neighborhood segregation and may help explain why highly diverse communities are so rare.
School report cards contain data about demographic subgroup performance, and some private ranking systems also make this information available. But because the disaggregated data is usually buried beneath the headlines, many parents do not focus on it. Moreover, disaggregated data does not provide what many parents want—a bottom-line assessment of overall school quality.
Given their popularity, rankings are not going to disappear anytime soon. The question, then, is how to dampen their damaging effects. More on that in a later post.
posted by Gerard Magliocca
The recent discussion about proposals in San Bernandino and other cities to use eminent domain to, in effect, force a principal reduction in mortgages that are underwater is quite interesting. Setting aside the question of whether this is a good idea, I’m wondering if there is a valid constitutional objection here.
It seems clear that Congress could order a principal reduction in mortgages under its Commerce Clause powers. State legislatures could probably do the same, though I’d have to look at the fine print in Blaisdell to confirm that assumption. (What, at this point, does the Contracts Clause do?) I’m not an expert on takings law, but it does seem strange to say that if the state takes my house and pays me the fair market value, then gives the house to a third-party to sell back to me at a lower price, that the bank must give me, the homeowner, a mortgage for that now-cheaper house? Why is that exactly? And won’t I still take a big loss?
Now I guess the state could set “just compensation” at higher than market level (in effect, a bailout) of the homeowner that would allow the bank to recoup its principal, then put the house back on the market (at market value) with an option to the homeowner to, if he or she could get a mortgage, buy back the house. (Nobody, I guess, has standing to challenge an overly generous payout for eminent domain.) Is this what people have have in mind? If so, it seems unlikely to work. Distressed municipalities won’t have the money, and states will lack the political will to help some homeowners at the expense of others.
What I am missing here?
posted by Brett Frischmann
I am incredibly grateful to Danielle, Deven, and Frank for putting this symposium together, to Concurring Opinions for hosting, and to all of the participants for their time and engagement. It is an incredible honor to have my book discussed by such an esteemed group of experts.
Shared infrastructures shape our lives, our relationships with each other, the opportunities we enjoy, and the environment we share. Think for a moment about the basic supporting infrastructures that you rely on daily. Some obvious examples are roads, the Internet, water systems, and the electric power grid, to name just a few. In fact, there are many less obvious examples, such as our shared languages, legal institutions, ideas, and even the atmosphere. We depend heavily on shared infrastructures, yet it is difficult to appreciate how much these resources contribute to our lives because infrastructures are complex and the benefits provided are typically indirect.
The book devotes much-needed attention to understanding how society benefits from infrastructure resources and how management decisions affect a wide variety of private and public interests. It links infrastructure, a particular set of resources defined in terms of the manner in which they create value, with commons, a resource management principle by which a resource is shared within a community.
Infrastructure commons are ubiquitous and essential to our social and economic systems. Yet we take them for granted, and frankly, we are paying the price for our lack of vision and understanding. Our shared infrastructures—the lifeblood of our economy and modern society—are crumbling. We need a more systematic, long-term vision that better accounts for how infrastructure commons contribute to social welfare.
In this book, I try to provide such a vision. The first half of the book is general and not focused on any particular infrastructure resource. It cuts across different resource systems and develops a framework for understanding societal demand for infrastructure resources and the advantages and disadvantages of commons management (by which I mean, managing the infrastructure resource in manner that does not discriminate based on the identity of the user or use). The second half of the book applies the theoretical framework to different types of infrastructure—e.g., transportation, communications, environmental, and intellectual resources—and examines different institutional regimes that implement commons management. It then wades deeply into the contentious “network neutrality” debate and ends with a brief discussion of some other modern debates.
Throughout, I raise a host of ideas and arguments that probably deserve/require more sustained attention, but at 436 pages, I had to exercise some restraint, right? Many of the book’s ideas and arguments are bound to be controversial, and I hope some will inspire others. I look forward to your comments, criticisms, and questions.
April 24, 2012 at 3:05 pm Posted in: Administrative Law, Antitrust, Bright Ideas, Cyberlaw, Economic Analysis of Law, First Amendment, Google & Search Engines, Infrastructure Symposium, Innovation, Intellectual Property, Legal Theory, Media Law, Property Law, Technology, Uncategorized Print This Post No Comments
posted by Gerard Magliocca
There is a cert petition pending before the Supreme Court that attacks the constitutionality of New York City’s rent control policy as a taking under the Fifth and Fourteenth Amendments. The theory, I gather, is that tenants in some apartments have an option to renew their lease every few years and get to designate who gets to take over the lease if they choose not to, which amounts to a permanent “occupation” of the landowners apartment at a below-market rate. On its face, it sounds like a good vehicle for a ruling on the issue.
I recall a long time ago looking for cases that raised Third Amendment claims, and the most interesting one I found was a challenge to rent control back in the 1940s where the building owner tried to argue that “quartering” should be understood to include more than just soldiers. This does raise the question of whether the Third Amendment is about limiting the presence of the military in our lives or constitutes a special kind of constitutional taking–forcing somebody to live in our property that we don’t want there. Third Amendment scholars–awake!
posted by Stanford Law Review
The Stanford Law Review Online has just published an Essay by Richard A. Epstein entitled Physical and Regulatory Takings: One Distinction Too Many. In light of Harmon v. Kimmel—a case challenging New York’s rent control statute on petition to the Supreme Court—Epstein provides a succinct economic takedown of uncompensated regulatory takings in four distinct areas: rent control, support easements, zoning, and landmark preservation statutes. In suggesting a unified approach to eminent domain whether the taking is physical or regulatory, he writes:
Unfortunately, modern takings law is in vast disarray because the Supreme Court deals incorrectly with divided interests under the Takings Clause of the Fifth Amendment, which reads: “nor shall private property be taken for public use, without just compensation.” The Supreme Court’s regnant distinction in this area is between physical and regulatory takings. In a physical taking, the government, or some private party authorized by the government, occupies private land in whole or in part. In the case of a per se physical taking, the government must pay the landowner full compensation for the value of the land occupied. Regulatory takings, in contrast, leave landowners in possession, but subject them to restrictions on the ability to use, develop, or dispose of the land. Under current law, regulatory takings are only compensable when the government cannot show some social justification, broadly conceived, for its imposition.
Thus, under current takings law, a physical occupation with trivial economic consequences gets full compensation. In contrast, major regulatory initiatives rarely require a penny in compensation for millions of dollars in economic losses. . . .
The judicial application of takings law to these four different partial interests in land thus destroys the social value created by private transactions that create multiple interests in land. The unprincipled line between occupation and regulation is then quickly manipulated to put rent control, mineral rights, and air rights in the wrong category, where the weak level of protection against regulatory takings encourages excessive government activity. The entire package lets complex legal rules generate the high administrative costs needed to run an indefensible and wasteful system. There are no partial measures that can fix this level of disarray. There is no intellectual warrant for making the categorical distinction between physical and regulatory takings, so that distinction should be abolished. A unified framework should be applied to both cases, where in each case the key question is whether the compensation afforded equals or exceeds the value of the property interest taken. The greatest virtue of this distinction lies not in how it resolves individual cases before the courts. Rather, it lies in blocking the adoption of multiple, mischievous initiatives that should not have been enacted into law in the first place. But in the interim, much work remains to be done. A much-needed first step down that road depends on the Supreme Court granting certiorari in Harmon v. Kimmel.
Read the full article, Physical and Regulatory Takings: One Distinction Too Many by Richard A. Epstein, at the Stanford Law Review Online.
posted by Frank Pasquale
Today, Jon Walker tweeted that “No one man has done more to protect the power of the financial elites than President Obama.” Is that a fair assessment? Here are some views expressed on the mortgage settlement today:
Adam Levitin, The Servicing Settlement: Banks 1, Public 0:
[The settlement] cover[s] robosigning and overbilling in foreclosures. Given the relatively narrow scope of this settlement, it’s not surprising that the dollars involved are quite small compared to the overall harms created by the housing bubble and aftermath.
The formal price tag for the settlement is $25 billion, although it is projected to accomplish up to $40 billion in relief. Only $5 billion of that is hard cash contributed by the banks. Let me repeat that. The five banks involved in the settlement, which have a combined market capitalization of over $500 billion, are putting in only $5 billion. That’s less than 1% of their net worth. And they are admitting no wrongdoing. To call that accountability is laughable. . . . $32 billion of the settlement is being financed on the dime of MBS investors such as pension funds, 401(k) plans, insurance companies, and the like—-parties that did not themselves engage in any of the wrong-doing covered by the settlement.
posted by Stanford Law Review
The Stanford Law Review Online has just published a piece by Mark Lemley, David S. Levine, and David G. Post on the PROTECT IP Act and the Stop Online Piracy Act. In Don’t Break the Internet, they argue that the two bills — intended to counter online copyright and trademark infringement — “share an underlying approach and an enforcement philosophy that pose grave constitutional problems and that could have potentially disastrous consequences for the stability and security of the Internet’s addressing system, for the principle of interconnectivity that has helped drive the Internet’s extraordinary growth, and for free expression.”
These bills, and the enforcement philosophy that underlies them, represent a dramatic retreat from this country’s tradition of leadership in supporting the free exchange of information and ideas on the Internet. At a time when many foreign governments have dramatically stepped up their efforts to censor Internet communications, these bills would incorporate into U.S. law a principle more closely associated with those repressive regimes: a right to insist on the removal of content from the global Internet, regardless of where it may have originated or be located, in service of the exigencies of domestic law.
Note: Corrected typo in first paragraph.
December 19, 2011 at 3:14 am Tags: banks, credit card companies, DNS, DNS filtering, domain name seizures, domain name servers, domain names, financial institutions, Intellectual Property, Internet, internet security, internet stability, IP, IP addresses, IP rights, online advertisers, PROTECT IP Act, search engine censorship, search engines, SOPA, Stop Online Piracy Act, World Wide Web Posted in: Current Events, Cyberlaw, First Amendment, Google & Search Engines, Google and Search Engines, Innovation, Intellectual Property, International & Comparative Law, Law Rev (Stanford), Law School (Law Reviews), Movies & Television, Property Law, Social Network Websites Print This Post One Comment
posted by Frank Pasquale
Aaron Bady’s blog has been a must-read on the Occupy movement all this fall. Property law professors may be interested in a guest post on it from Gina Patnaik, applying the public trust doctrine to the UC:
In the latter half of the twentieth century, Joseph Sax, Professor Emeritus at UC-Berkeley School of Law, revived public trust doctrine within American case law. Because common law principally derives from court rulings and judicial opinion instead of legislation, it is useful only insofar as it is used: Sax argued that public trust doctrine was a prime example of the ways that historical understandings of a legal concept could be resuscitated to serve the changing demands of the American people. Sax’s seminal work, “The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention,” demonstrated that public trust doctrine provided a compelling framework for “lawsuits in which citizens, demanding judicial recognition of their rights as members of the public, sue the very public agencies which are supposed to be protecting public interest.” And Sax was right: the forty years since his article’s publication have seen the public trust doctrine invoked by the courts to shield public lands, natural resources, and even endangered species. Over the course of the past century, the scope of public trust doctrine has moved inexorably towards expanded protections of the public’s interest. Read the rest of this post »