Category: Property Law

Do Corporations Enjoy a 2nd Amendment Right to Drones?

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.
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The Yale Law Journal Online: Liquid Assets: Groundwater in Texas

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.

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On Information Justice

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.

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Intellectual Property Theory: An Homage and Reply

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.

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School Rankings and the Diversity Penalty II

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.

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School Rankings and the Diversity Penalty

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.

 

 

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Eminent Domain and Underwater Homes

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?

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Introduction: Symposium on Infrastructure: the Social Value of Shared Resources

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. 

The book is described here (OUP site) and here (Amazon). The Introduction and Table of Contents are available here.

Abstract:

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.

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The Constitutionality of Rent Control

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!

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Stanford Law Review Online: Physical and Regulatory Takings

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.