The Inevitable Failure of Nuisance-Based Theories of the Takings Clause: A Reply to Professor Claeys

Rejecting the proposition (advanced by Professor Eric Claeys) that the Rehnquist Court\u27s conservatives have missed an opportunity to transform takings law, this commentary demonstrates that a nuisance-based theory cannot provide a comprehensive basis for takings clause jurisprudence. The commentary further establishes that no plausible vision of originalism supports a nuisance based theory, and concludes by arguing that judicial scrutiny of state and local land use practices is less deferential than it was at the inception of the Rehnquist Court

Structural Obstacles to Settlement of Land Use Disputes

In many states, legal doctrine discourages settlement of land use litigation by requiring that any settlement undergo the same review process as the decision that led to the litigation in the first place. The problem is exacerbated by broad standing rules that allow a variety of parties to challenge the settlement. As a result, municipalities and developers often have an incentive to litigate to judgment, even though both parties would prefer a negotiated or mediated solution. On the other hand, permitting developers and municipalities to settle litigation behind closed doors could impair both the quality and the legitimacy of the ultimate land use decisions. Because broad participation in the decisionmaking process operates both to educate decisionmakers and to increase acceptance of adverse decisions, excluding neighbors from the settlement process threatens significant substantive and process values. Concerns about closed-door decisionmaking, however, do not justify a doctrinal framework that permits collateral challenges to land use settlements. Instead, permitting neighbors to intervene in proceedings between developers and municipalities, and binding neighbors to settlement when they choose not to intervene, better harmonizes the interest in informed and participatory decisionmaking with the cost-saving advantages of negotiated solutions to land use problems

ERISA Defined Benefit Plans Are Not Trust worthy

What role does the common law of trusts play in policing investment decisions made in the context of a defined-benefit retirement plan governed by ERISA? That issue, among others, divided the Supreme Court this past term in Thole v. U.S. Bank N.A. The Court’s majority decided the case by holding that plan beneficiaries had no Article III standing to challenge allegedly self-interested investment decisions made by the plan’s sponsor and administrator. Because the Court grounded its decision in constitutional standing, Congress would be powerless to confer standing on plan beneficiaries without also amending the substantive rights accorded those beneficiaries. This Article has two objectives. The first is to examine the consequences that might have followed if the Court had decided that the plan beneficiaries did have standing. Applying the substantive law of trusts, together with the remedies afforded by trust law, would have done little good for the plan beneficiaries and would not serve as a deterrent for questionable behavior by the plan’s trustee. ERISA is a regulatory statute, and potential abuses call for a regulatory solution. This Article’s second objective is to examine the potential impact of the Court’s analysis of Article III standing. Although trust law is a poor fit for regulating investment decisions by defined benefit plans, the Court’s standing decision has the potential to cripple more productive regulatory efforts. To the extent that the Court’s opinion holds that plan beneficiaries lack constitutional standing unless their benefits are in jeopardy, the opinion may limit the ability of Congress to use the private right of action as a tool for enforcing ERISA mandates

Rhetoric and Reality in Copyright Law

My first objective in this article is to explore the gulf between copyright rhetoric and copyright reality. After examining copyright rhetoric, the article demonstrates how neither the need to generate creative activity nor the desire to reward deserving authors provides a plausible justification for current copyright doctrine. Why, then, does copyright doctrine continue to expand? The concluding section suggests some answers. Interest-group politics provides an obvious answer and one well-substantiated by the history of copyright legislation. But the story does not end with interest-group politics. Instead, I suggest that the nation\u27s elite, including its lawmakers, has a stake in believing and acting on copyright rhetoric. The elite\u27s investment in the status quo reinforces the power of the interest groups who have fueled copyright expansion

The Demise of Federal Takings Litigation

For more than twenty years the Supreme Court has held that a federal takings claim is not ripe until the claimant seeks compensation in state court. The Court\u27s recent opinion in San Remo Hotel, L.P. v. City & County of San Francisco establishes that the federal full faith and credit statute applies to federal takings claims. The Court itself recognized that its decision limits the availability of a federal forum for takings claims. In fact, however, claim preclusion doctrine-not considered or discussed by the Court-may result in more stringent limits on federal court review of takings claims than the Court\u27s opinion anticipates. The counterintuitive result-that federal takings claims must be litigated in state court-plays a critical role in the Supreme Court\u27s emerging takings jurisprudence, which largely delegates to state courts the primary responsibility for policing land use regulation

Maintaining Condominiums and Homeowner Associations: How Much of a Priority?

This Article starts, in Part I, by exploring existing lien priorities, including state variations. Part II analyzes the impact of the recent foreclosure crisis, surveying the case law that has arisen in response to that crisis. Part III focuses on the normative analysis, explaining why legislatures should accord lien priority to associations. Part IV addresses implementation issues

Mitigating Catastrophe Risk for Landowners

Local, national, and global catastrophes entail significant risk for landowners. The government-sponsored National Flood Insurance Program illustrates how subsidizing insurance against catastrophe risk can result in overinvestment in risk-prone properties. Government intervention, however, has largely been a response to the historical failure of the private insurance industry to provide adequate protection against correlated risks, a failure with the potential to generate underinvestment in land and devastate existing owners. When data is available about the incidence and severity of potential disasters, improvements in technology have made it more feasible for insurers to calibrate premiums and discounts with greater accuracy, and sophisticated financial instruments not available until recent decades should be sufficient to provide insurers with the capital to overcome the correlated risk problems that might otherwise threaten their solvency. Government’s primary role should be on the demand side, educating owners about the need to purchase insurance. When reliable data is unavailable, as it is not for pandemics and economic crises, private insurance may remain difficult to obtain. Even then, the efficiency case for government intervention is plausible in two limited circumstances: when failure to compensate would cause damage to the broader economy, or when government has played a significant role in creating losses. The distributive justice case for compensation to landowners as a class is also weak, although there may be a stronger case for compensating owners of modest means who have suffered catastrophic losses due to events for which insurance was not available

Title Theft

Real property owners across the country have been targeted by scammers who prepare deeds purporting to convey title to property the scammers do not own. Sometimes, the true owners are entirely unaware of these bogus transfers. In other instances, the scammers use misrepresentation to induce unsophisticated owners to sign documents they do not understand. Property doctrine protects owners against forgery and fraud—the primary vehicles scammers use in their efforts to transfer title. Owners enjoy protection not only against the scammers themselves, but generally against unsuspecting purchasers to whom the scammers transfer purported title. Recovery of title, however, involves costs and delays that are difficult to bear, especially for victims without significant resources—often the favorite targets of scammers. Legislators have proposed a variety of reforms to make unauthorized transfers more difficult. Most of the proposed reforms, however, would do little to ease the financial burden on victims. Victims cannot generally rely on title insurance because the standard title insurance policy does not protect the insured against title defects that arise after issuance of the policy. Requiring title insurers to cover post-policy forgery and fraud would ease the burden on victims without significantly increasing costs to title insurers

The End of Probate

In the nearly 50 years since Norman Dacey’s How to Avoid Probate first hit the best seller list, law reformers have responded by making probate easier, faster, and less expensive – especially for families with modest means and modest needs. These legal reforms, however, have barely made a dent in the use, and growth of probate avoidance devices. In a recent article, Reconfiguring Estate Settlement, 94 Minn. L. Rev. 42 (2009), John Martin suggests replacing the probate system with a non-judicial registration system. Although his proposal builds on the UPC and other reform statutes, Professor Martin contributes some new insights – not the least of which is that any reform effort may be doomed if it retains the “probate” label