Archive for the ‘Property Law’ Category
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 »
posted by Sarah Waldeck
Really, the headline says it all. But I am disappointed I didn’t see this one coming. Anyone who has read Jeff Benedict’s Little Pink House should have seen its made-for-TV-movie potential.
What actually got me thinking about Kelo, however, is the reporting this week in various media outlets that Justice Richard Palmer, one of the four Connecticut justices who found New London’s exercise of eminent domain to be constitutional, apologized to Suzette Kelo after hearing a keynote speech by Benedict. According to Benedict, Palmer approached Kelo and said, “Had I known all of what [Benedict] just told us I would have voted differently. I’m sorry.”
This certainly seems like grist for the Kelo mill, especially since it’s not every day that a judge apologizes to a litigant for having voted against her. Except that the back story matters a lot here, because that’s not what Justice Palmer says he did. Rather, as the Justice eventually clarified to Benedict, “Those comments were predicated on certain facts that we did not know (and could not have known) at the time of our decision and of which I was not fully aware until your talk — namely, that the city’s development plan had never materialized and, as a result, years later, the land at issue remains barren and wholly undeveloped.” The Justice further added the Court could not have known those facts “because they were not yet in existence.” Moreover, the Justice later responded to a series of written questions from Benedict, one of which was, “Looking back at the Kelo decision (by the Connecticut Supreme Court), how do you see it now? In other words, has it led to good law?” The Justice responded, “I think that our court ultimately made the right decision insofar as it followed governing U.S. Supreme Court precedent.” (The fullest account I’ve found of Justice Palmer’s encounter with Kelo and Benedict is here.)
So, not exactly an apology, but perhaps instead a very human expression of regret over what Suzette Kelo went through.
By the way, readers will note that I chose not to refresh anyone’s recollection about the substance of Suzette Kelo’s case or the eventual ruling from the U.S. Supreme Court. Instead, you can all just catch the movie.
Hat Tip to my former student Eric Abes.
posted by Kaimipono D. Wenger
As Tom Bell has noted, the Third Amendment gets no respect. It is as likely to be mentioned by comedians as by courts, and holds a position of honor among the odd clauses of the Constitution, where it is so infrequently used that even non-uses draw attention. But this neglected amendment has one potential application today, where it could play an important role in a somewhat high-profile case.
I’m talking, of course, about the Armenian genocide litigation.
Here’s a snippet from a recent story in the Armenian Weekly (with emphasis added):
In July, Armenian American attorneys sued the Republic of Turkey and its two major banks, seeking compensation for confiscated properties and loss of income. A new federal lawsuit was filed last week by attorneys Vartkes Yeghiayan, Kathryn Lee Boyd, and David Schwarcz, along with international law expert Michael Bazyler, against the Republic of Turkey, the Central Bank, and the Ziraat Bank for “unlawful expropriation and unjust enrichment.” The plaintiffs are Los Angeles-area residents Rita Mahdessian and Anais Haroutunian, and Alex Bakalian of Washington, D.C. The three Armenian Americans, who have deeds proving ownership of properties stolen from their families during the genocide, are seeking compensation for 122 acres of land in the Adana region. The strategic Incirlik U.S. Air Base is partly located on their property.
That’s right. Armenian-Americans are seeking to recover property seized by Turkey during the Armenian genocide. And significant portions of that land are currently used to quarter American troops. Read the rest of this post »
posted by David Fagundes
Apparently I can’t stop blogging about morality, which is kind of weird because it certainly doesn’t play much of a role in my personal life or even my writing. Anyway, a student from a past property class recently passed along this really interesting article about Kenneth Robinson, a man who occupied a vacant house in a tony suburb of Dallas, apparently in an attempt to adversely possess it. The contemporary twist is that the house—valued at about $300,000—was vacant because its owners had abandoned it, apparently when they found themselves upside down on their mortgage. (They appear to still be the house’s title holders, since foreclosure has not yet taken place.)
I like this story for lots of reasons, including that it provides another modern data point about the continuing relevance of adverse possession. Another reason is that it stresses that adverse possession “is not just a loophole, it’s the law.” The article says that adverse possession is “as old as Texas” but even that understates the case—it’s actually one of the oldest property doctrines around, dating to Hammurabi’s Code.
But I like this story especially because it raises a new twist on the rationale for and merits of adverse possession doctrine. News stories about adverse possession are almost invariably accompanied by cries of outrage by people who regard the doctrine as offensive to property rights. In class, students also tend to regard the doctrine skeptically, though (to their credit) in a more measured and thoughtful way.
As this article (or at least the comments to it) illustrate, though, the ongoing housing crisis and related foreclosure epidemic have caused public reaction to adverse possession cases to become less angry and in some cases even positive. I explore this phenomenon in more detail below the fold.
posted by Sarah Waldeck
In the last week I’ve come across two teaching resources that are worth sharing. As the headline suggests, the first is about the Barnes Foundation, which closed the doors to its original home in Merion, Pennsylvania at the end of June. For years I’ve been urging my Estates and Trusts students to visit the Barnes before it is “too late,” by which I meant “before it moves to downtown Philadelphia.” I did this partly because I thought one needed to see the Barnes to fully understand the ongoing battle over its future, and partly because the Barnes was really, really cool. Now that it is officially “too late,” I will point them to this 360 degree interactive tour of the Barnes that was put together by the New York Times. Their effort really gives a flavor of the place, although many of us undoubtedly mourn that we’re left with only a computer program.
Next up is something for Property professors: an episode of This American Life entitled “Game Changer.” You can access the episode, which is about drilling for natural gas in Pennsylvania, here. Fast forward to minute 33:30 and soon a reporter will say, “The standoff between [the gas company] and [the town] started with one of the least gripping topics in all of government: zoning.” While the reporter’s explanation of the difference between conditional and permitted uses isn’t any more interesting than what I say in class, the story she tells is much more engaging than anything I’ve previously used to teach zoning. Moreover, the story of the small town that tried to write a zoning ordinance after Big Gas arrived does a better job of driving home the economic consequences of zoning than anything I’ve encountered to date.
posted by Andrew Sutter
Whatsoever is under the whole heaven is Mine.
– Job 41:11 (Authorized Version)
It’s said that the Lisbon earthquake and tsunami of 1755 had a profound effect on the thought of Voltaire, Rousseau, Kant, and others. Having occurred so far from Western intellectual centers, the 2004 Southeast Asian tsunami and the 2011 Japan tsunami are unlikely to be so influential. The first fits easily into the discourse of “underdevelopment,” and evokes our pity. The second occurred in a country more “like us” in many ways, but was soon overshadowed by just one of its effects, a so-called nuclear “catastrophe” that fits easily into the discourse of energy politics and money, and that resonates with our bi-polar attitude toward technology.
While I can’t speak to the 2004 tsunami, I did spend time earlier this month investigating the impact of the Japanese tragedy first-hand. Obviously, the effects of seeing one erased town or neighborhood after another, in three dimensions and 360 degrees, and of smelling them, and of sneezing or choking on their dust, were more than intellectual. But an unavoidable by-product of the experience is that it’s hard not to think some of our cherished intellectual positions are vain, self-serving and simply wrong. And among them, our notions of property.
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posted by Sarah Waldeck
A while back, I asked readers who were involved with family cottages (or summer homes or cabins or whatever you want to call them) to tell me their stories. I was curious about how many generations the property had been in your family; how you handled carrying costs, improvements, scheduling and use; whether your property was governed by a tenancy in common or other legal arrangement; and whether that arrangement was rocky or smooth. Some first-rate sociology had already been done in this area, but I was curious enough to want to supplement with some casual empiricism.
I recently posted the article that grew out of these inquiries on SSRN. Forthcoming in the Notre Dame Law Review, the article discusses how “identity property” is passed along from one generation to the next. Identity property is that which is valued for what it represents about self and family—a sort of ratcheted-down version of Margaret Radin’s “personhood property.” In the absence of more sophisticated estate planning, identity property is often inherited by the decedent’s children, who take as tenants in common. Standard doctrine relies on familial bonds and the unilateral right of partition to mitigate bilateral monopoly problems and to foster cooperation in the management of the children’s common resource. I argue that with identity property, this standard account is often wrong. Because courts favor partition by sale, the exit of one tenant often means that the remaining co-tenants will be forced to sell the identity property. Because the remaining tenants perceive the property as non-fungible, the threat of exit can be powerful enough to exacerbate bilateral monopoly problems and decrease the likelihood of cooperation.
The article makes use of some of the stories that readers of Concurring Opinions told about their family cottages to elucidate how devisees modify the default rules of a tenancy in common, particularly the right of partition. What I found most interesting about these stories was how willing some individuals were to radically restrict their right of exit from the co-tenancy and the corresponding belief that a strong right of exit would ultimately work against their collective interest. The Article ultimately argues that when it comes to identity property, the right of exit through partition should not be as absolute as current law allows.
For those who are interested in learning more, the abstract and article are available here.
p.s. And for those of you who are gearing up for another season in property that is jointly owned with other relatives, rest assured that not one single person who responded to my request reported an entirely smooth arrangement!