Category: Property Law

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Data Driven Ag Science Helped Wine, Now Truffles and Why Not More?

Truffles (the fungi not the chocolate) are infamous as difficult to find and quite expensive that may soon change thanks to data and science. Truffles can range from $400 to $800 a pound depending on whether they are from the U.S., France, or Italy. Methods to find them involve voracious pigs, expensive dogs, and rakes–all of which are expensive and can destroy the treasure sought. But as with wine, cheese and other luxury items, farmers are finding ways to expand the supply. I am sure some will say that the quality of the truffle from new areas such as Chile or New Zealand won’t be up the same. But as with wine and whiskey and cheese, with some science and perseverance, it turns out many areas are able to make some damn fine, if not better, offerings than the originals. Just as UC Davis turned wine-making into a science-based industry, a company is turning truffle growing into an industry too.

The company, Symbios, identified some of the most “successful producers of black Périgords in both Europe and Australia.” They analyzed the areas along about 19 variables, and so had metrics for what a good truffle region would have in place. Then they used geographic data from Google Earth and other sources and mapped which areas would be best suited for truffle growing. Apparently 2.2% of Tennessee is good soil, and other states are on tap for mapping. This approach could change much more than the truffle world.

Imagine having rich data about current agricultural, water, mineral, and other interests and systems. Property values might reflect that data. Agriculture at all levels could benefit. Rather than going with monoculture crops, farmers may be able to see that their land is best suited for other crops which would cost less to grow or may be high value crops for rare foods. Of course subsidies would need to change. But there too we might start to ask whether growing crops in certain areas is wise. Some might try to alter land to mimic ideal conditions. I doubt that is smart. But the better outcome of being able to know more about whether a specific plot of land is where to start your dream vineyard of pinot or cabernet or truffle farm is a super cool step forward.

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UCLA Law Review Vol. 61, Issue 3

Volume 61, Issue 3 (February 2014)
Articles

How to Feel Like a Woman, or Why Punishment Is a Drag Mary Anne Franks 566
Free: Accounting for the Costs of the Internet’s Most Popular Price Chris Jay Hoofnagle & Jan Whittington 606
The Case for Tailoring Patent Awards Based on Time-to-Market Benjamin N. Roin 672

 

Comments

Here Comes the Sun: How Securities Regulations Cast a Shadow on the Growth of Community Solar in the United States Samantha Booth 760
Restoration Remedies for Remaining Residents David Kane 812

 

 

 

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San Francisco for the Rich but that can be fixed

Are San Francisco’s housing issues self-created? Possibly. Many have posted about the HuffPo article showing how New York and San Francisco are now populated by the wealthy almost exclusively. And as I visit SF what should I see but the Examiner running a series about SF’s future. Oh no it may hit 1 million people by 2032! That’s right a Dr. Evil 1 million. There is an artificial scarcity in SF. Let’s compare. SF square mileage about 47; NY’s about 23. SF, I believe, has assiduously limited housing. It could build up. It could improve public transport (Muni is not, repeat not, a subway). It is trying to do some work to get to address these issues. Still, it seems that the outrage over high prices and company buses might also be directed at government and residents unwilling to increase the amount of high rises.

Of course, the whole Peninsula could use density and better housing in the Fabgoog area would be welcome. Who knows? Maybe some light rail or better buses in the area would turn Mountain View into a Santa Monica of sorts. Great food, great living, and an identity of its own rather than a weird kowtow to the small city to the north.

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Partial Taking in the Dunes of New Jersey: The Harvey Cedars Case

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 More

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A Modest Proposal: Install Permanent Blue Lines Physically Along the Coast

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 More

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Announcing Symposium on Orly Lobel’s Talent Wants to be Free: Why We Should Learn to Love Leaks, Raids, and Free Riding

Talent Wants to be FreeThink 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:

Matt Bodie

Anupam Chander

Danielle Citron

Catherine Fisk

Vic Fleischer

Brett Frischmann

Shubha Ghosh

Ron Gilson

Peter Lee

Frank Pasquale

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Shame On You! Hand Over That Dune Easement!

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 More

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Homeownership, Flood Insurance, and Stupid Land Uses: The Kolbe Decision

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 More

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Happy to be back!

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!

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On Owning, Death, and Dynasties

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.

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