All Your Air Right Are Belong to Us

Privacy and property rights are tricky subjects for a variety of reasons. One reason is that they have a unique relationship with each other, and this Article focuses on one of those areas of intersection – that of air rights and invasion of privacy. This is a timely topic due the advent of drones, and this Article will argue that drone surveillance constitutes common law trespass and that any statute or regulation that permits such activity is in derogation of common law and so should be subject to particularly careful thought and consideration. This is not as straightforward a thesis as one might perhaps think because both property and privacy rights have a murky past and have gone through iterative formulations as society has sought to achieve the right balance between the public and private spheres. Privacy has historically focused on expectations of privacy, and property rights have traditionally provided such expectations, but the legally recognized nature of each has not changed over time to keep pace with technological innovation. This has led to a situation where the kinds of rights and causes of action that have traditionally protected individuals no longer suffice in a variety of circumstances. In particular, the use of drone technology to engage in sophisticated surveillance presents significant challenges our existing legal framework. Part I of this Article examines the history of privacy law in some detail, and Part II does the same with respect to the common law of airspace property rights. When these two areas of the law are examined in tandem, it becomes apparent that drone surveillance violates rights that society generally wants to protect and that society has historically protected. That protection, however, is now lacking. There is some reason for the failure of the law to keep up with this type of new technology, and Part III examines the historical “aircraft exception” that many may now believe justifies the law’s acquiescence in the face of drone surveillance. Ultimately, though, this Article concludes that this common law exception is not applicable to drones and that, as such, the law should adapt to protect the public from drone surveillance. Part IV concludes this analysis by making a number of recommendations that state and federal legislatures and various administrative agencies would do well to consider when passing laws and promulgating rules regarding drone technology

Let My Arm Be Broken Off at the Elbow

Though the American legal system is deferential toward religion and churches, it is undeniable that the Church of Latter-day Saints-and other like organizations-are not just churches. They are, instead, important participants in the market economy, some of them global business enterprises of major proportions. This twinning of profit and spirit is seamless for many religions, with numerous modem churches preaching a prosperity gospel that promises spiritual and temporal blessings in return for donations. \u27 Still other churches-such as the Church of Scientology-directly charge for religious services that are necessary for spiritual improvement and advancement in the church hierarchy. And still others accumulate their own reserves of property and wealth. This asset assemblage leads, ineluctably, to enormous income and wealth concentrated in the hands of religious organizations across America. While there is nothing inherently wrong with religious organizations amassing wealth, it is troubling that they do so while enjoying informational and tax advantages not afforded to other entities. However, these benefits are not tax advantages; these are tax advantages that are expressly made unavailable to other, competing, profit-seeking entities that suffer greatly due to their comparative disadvantage. Indeed, this Article\u27s foundational claim is these advantages are so significant that they have come to shape the aims and actions of many religions, effectively bending the nature of many organizations away from traditionally religious and charitable work and toward profit-seeking. This state is both unintended and inequitable. As such, these advantages should be eliminated

Well Enough Alone: Liability for Wrongful Foreclosure

Part I of this Article both sets the stage for the current environment, in which banks and their officers and directors are under the spotlight and face an increasing amount of pressure due to their perceived role in the instigation of the Great Recession, and then examines in detail improvident lending and wrongful foreclosure, two of the wrongful acts banks have committed in connection with our current financial crisis that have generated a substantial amount of public interest and comment. Part II examines the potential of officer and director liability for these disparate elements of the Great Recession, looking first at the traditional scope of officer and director liability, and then turning to current calls to fundamentally expand this liability. Finally, Part III argues that the traditional scope of officer and director liability is sufficient, in the context of wrongful foreclosure, such that no expansion of responsibility is called for. This is because wrongful foreclosure, while a concrete and important part of our recent banking travails, is not implicated in the commencement or propagation of the Great Recession, which is the primary justification given for increased liability. Accordingly, this Article concludes that no expansion of liability for wrongful foreclosure is called for

The Shape of Property

“Shape” means “a mode of existence or form of being having identifying features” or the “form or embodiment” of something. Form and feature, in turn, arise from pressure and time. Property law has a shape all its own: it exists as a unique body of law, with distinctive conventions and rules. And that shape, those conventions and rules, derive from a variety of pressures that have, over the centuries, molded property law into its present form. This paper seeks to understand and explain the shape of a particular area of property law – that of property forms. Of course, this attempt does not exist in a vacuum. Indeed, the shape of property law and the source of that shape has received quite a lot of attention recently, and this paper is a direct response to that discussion. In particular, Thomas W. Merrill and Henry E. Smith have written extensively about the numerus clausus principle, a term which means “the number is closed.” This is a shorthand way to describe the fact that property can only exist in certain standardized forms. Merrill and Smith have done much to popularize this concept as a unique and “deeply entrenched” element of property law. They argue that this limitation on the number of property forms has always existed in the underlying fabric of our common law and take the term from civil law countries, in which forms of ownership are clearly limited to those permitted under civil code. They claim that the numerus clausus describes and explains why property law is so narrowly proscribed when it comes to common law restrictions on property types. Further, Merrill and Smith have discussed, at great length, their view of what has led to this underlying limitation in property law. They argue that the pressure that created the numerus clausus effect comes from a self-imposed informational cost-benefit analysis wherein courts habitually focus on whether a new property type provides informational benefits that exceed the marginal informational costs thereof. This description of and explanation for property law have generated significant interest over the last decade or so. Many recent articles have focused on the concept of the numerus clausus, and either built upon or criticized the informational burden analysis developed by Merrill and Smith to explain it. Among those articles are two of mine, which built upon the numerus clausus as posited by Merrill and Smith. In A Theoretical Case for Standardized Vesting Documents (“SVD”), I first argued that this same cost-benefit analysis should apply to vesting documents, a very specific area of property law. Later, in Why is Property so Hard? (“WPH”), I expanded the argument, contending that the informational burden analysis proposed by Merrill and Smith ought not to be limited to vesting heterogeneity. The argument was that the informational pressures identified by Merrill and Smith are present in all areas of property law and, therefore, the informational benefit analysis driving the numerus clausus ought to act on the many, many areas of variability laced throughout property law. I continue to believe in the validity of these normative arguments. However, I have come to believe that the contrast between these arguments and the actual shape of property law belies the underlying validity of Merrill and Smith’s theses regarding the numerus clausus. More specifically, the informational burden analysis propounded by Merrill and Smith does seem to explain the peculiarly homogeneity associated with the fixed number of property forms available throughout our system. But that analysis should also have the same effect on other areas of property law, and it clearly has not. I believe that this failure to affect other areas of property law indicates that the numerus clausus does not arise due to the type of informational burden analysis propounded by Merrill and Smith. In other words, if the courts truly adopted and applied the type of informational burden analysis described by Merrill and Smith, then they would do so in all areas of property law. Property law is notoriously haphazard, in contrast to other areas of the law, and the court’s failure to remedy this heterogeneity (despite the same efficiency pressures extant in connection with property form issues) indicates that this judicial weighing of informational benefits and burdens simply does not occur in any area of the law. Part I lays the foundation for this argument in greater detail by reviewing the numerus clausus and contrasting Merrill and Smith’s contentions with my own previous analyses. So, if the pressure to create informational efficiencies does not lead to the numerus clausus, what does? Part II answers this question by focusing on the historical setting in which property law developed. Often overlooked, legal history frequently explains why and how the law developed. I believe that is the case here. Rather than arising from a subtextual analyses regarding informational burdens, homogeneity of property forms arises from a series of ancient statutes meant to protect governmental revenue. These statutes narrowed the type of property that one could create in order to restrict the manner in which people were able to transfer land, thus ensuring that the English crown’s transfer tax stream would not be jeopardized. The Article concludes that our property system, inefficient as it is, has been shaped by organic forces over the centuries. The numerus clausus, then, is a valid description of the current shape of property law, but it does not arise in the manner that many academics and commentators claim

Think Twice: Charging Orders and Creditor Property Rights

What do you do? As a lawyer (or prospective lawyer), I mean – what do you do (or what will you do) in exchange for a salary or hourly fee? You will probably be expecting a lot of money for your services; so what, exactly, is it that you will do to justify that payment? The answer, of course, is varied because lawyers do lots of different things. And, among these activities, there are some things that only lawyers can do. Chief among those is suing people. Suing people is something that only lawyers do because states do not generally permit non-lawyers to appear in court or file pleadings. Accordingly, doing so – whether in pursuit of injunctive relief, declaratory relief, or a monetary remedy – is a significant part of the current legal market. Indeed, it is the professional focus of the many lawyers who practice commercial litigation or who perform collections work. In these areas of the law, lawyers sue people in an attempt to validate their clients’ rights and causes of actions with a money judgment. So what you do very likely comes down to getting money. This is not novel, of course: many people spend their time arguing about, dealing with, or negotiating over money. What is somewhat unique, however, is just how clean and abrupt a lawyer’s role is in this context: your job is (or will be) to take property belonging to someone else and convert it into property belonging to your client – in other words, to create a property interest for your client. Creditors have a unique ability in our legal system to acquire property rights in assets belonging to debtors. This paper examines these “creditor property rights,” in general, and those granted to creditors of debtors that own interests in partnerships, limited partnerships, and limited liability companies, in particular. More specifically, this paper examines charging orders – the redress granted to a creditor vis-à-vis a debtor’s interest in a partnership entity – and argues that this remedy is a much more significant, useful, and choate right than is generally acknowledged by either the academy or the bar. Part I begins this examination by looking at the history of creditor property rights and the manner in which they have developed over the years, culminating in our current system, which allows creditors to “convert” debtor property to creditor property via execution. This redress represents the ultimate creditor right, but it does not stand alone. Rather, the courts have fashioned a number of remedies that grant to creditors a “partial” property right. Of chief interest here is the charging order, which is reviewed in detail in Part II. Therein, the function, history, and evolution of this remedy from its inception is explained. The charging order initially developed in the partnership context, in response to a perceived unfairness existing when a creditor gained unfettered rights in the partnership interest of a debtor-partner and the partnership’s underlying assets. Based on this inequity, the courts granted creditors a provisional right in partnership property (a “quasi” property right) by permitting the creditor to intercept certain distributions that would otherwise flow from the partnership to the partner but prohibiting any interference with the partnership itself. The remedy quickly spread to limited partnerships and was incorporated into LLC law from its inception. This is particularly important given the explosive popularity of the LLC over the last thirty-five years and the fact that the charging order – and its attendant limitation on creditors (whether real or perceived) – has had an enormous effect on planning, on transactional work, and on litigation in general. Part III expands upon Part II’s examination of the charging order remedy and argues that that creditors of partnership entity owners are not as limited as is widely believed and that the perception of the charging order as an effective barrier to collection is exaggerated. Part III focuses on the underlying purpose of creditor property rights and charging orders and analyzes the language of some of the statutes that create the charging order remedy. By placing charging orders in their proper context (as a type of creditor property interest) and by focusing on actual statutory language, this Part highlights the options available to holders charging orders. These options are substantial and should be more aggressively utilized by courts and lawyers. If that occurs, the charging order will assume a more rightful place in the hierarchy of creditor rights and afford much greater creditor protection than they presently do. The Article concludes, then, that most lawyers’ belief that a charging order effectively precludes creditor recovery is significantly overstated and that, given the extraordinary prevalence of partnership entities today, this is an important point that lawyers, teachers, and students overlook at their own peril

Preslar v. Commissioner: Debt-Discharge Income and its Rationale

In Preslar v. Commissioner, the Tenth Circuit examined the “disputed debt” exception and concluded that the result was at odds with similar holdings from the Third Circuit. The Third and Tenth Circuits interpret the underlying logic of debt discharge income differently. The Third Circuit invokes the disputed-debt exception when the original debt is either unenforceable or unliquidated, while the Tenth Circuit invokes the exception only when the original amount is unliquidated. The Tenth Circuit stated that the exception “rests on the premise that if a taxpayer disputes the original amount of a debt . . ., a subsequent settlement of that dispute is ‘treated as the amount of debt cognizable for tax purposes.’” There being no evidence of a good faith dispute over the amount of the debt, the disputed-debt exception could not be invoked to surpass the debt-discharge income rule. By taxing people when an asset is freed through loan-forgiveness, the IRS ensures that those taxpayers do not arbitrarily receive tax-free consumption. The Tenth Circuit should have found that the method of payment can affect the amount of the debt, that a dispute as to method can be a dispute as to amount, and that, following the Tax Court\u27s factual findings, the Preslars had a legitimate dispute as to method and amount. A debt-discharge should not be excluded from gross income when it is disputed only as to enforceability. However, having adopted the correct rationale and exception construction, the court promptly misapplied it

A Theoretical Case for Standardized Vesting Documents

As it stands now, no one familiar with real estate law or commerce would expect different parties in different jurisdictions to record identical, or even similar, instruments. In an immediate sense, this heterogeneity of the recorded documents (“vesting heterogeneity”) does not seem a good thing: parties utilizing the recording system generally seek to make known, or to discern, the same generic type of information?that is, evidence of claims upon property?so why are different forms and types of documents utilized all over the country? This Article analyzes this vesting heterogeneity from a new perspective and concludes that it is, in fact, cause for significant concern. Vesting heterogeneity has arisen organically, growing with the recording system as they both evolved over time. This historical explanation does not, however, excuse the cost associated with such a lack of uniformity. Anyone seeking information with respect to any piece of property must navigate the complexities and uncertainties that arise because all such information is heterogeneous and, as a consequence, difficult to understand and utilize. This represents both an immediate transactional cost and an increased risk of ill-informed behavior. This is particularly troublesome because this sort of cost-based concern arising from variability has a well-established analogue in property law that the law clearly desires to avoid. That analogue is the cost that would arise if property law were to permit unlimited property forms and gives rise to what is known as the numerus clausus theory. This theory explains the law’s hostility toward new, or different, types of property and holds that such heterogeneity is not generally permitted because of the extremely high informational costs associated with such creativity. This Article suggests that this common law concept can, and should, inform our analysis of vesting heterogeneity and that it precipitates strongly against such lack of uniformity. This is because the costs that drive the numerus clausus to hold that variability should be limited are strikingly similar to those created by variability of vesting documents. As such, this theory is relevant here such that the same analysis should be applied to vesting heterogeneity by asking whether a different (or “new”) document is helpful enough to outweigh the informational costs inherent therein. Based on this reasoning, this Article concludes that the law is wrong to systematically ignore heterogeneity in vesting documents. Instead, a numerus clausus type of analysis should be applied to new or different vesting documents to determine whether any inherent lack of uniformity is defensible. Where it is not, uniformity should be imposed

Can God Create a Rock So Heavy That He Cannot Lift It?: Outlawing Pensions under State Constitutions

Public pensions are a problem. More than twenty-seven million people participate in state and local government pension plans. And those plans are in the hole trillions of dollars. This means that state and local governments are going to have to raise additional trillions in taxes (or shift those trillions away from schools, police, firemen, or other spending targets) to satisfy these obligations. What can be done about such a large, seemingly intractable problem? A number of states have installed specific pension funding requirements within their constitutions. Most state constitutions contain some kind of balanced budget requirement, and a number of states, zeroing in on the scope and difficulty of the pension issue, have expanded those to include language explicitly imposing annual pension finding discipline. Unfortunately, even such specific attempts to counter this problem directly have not been very helpful in any state or jurisdiction. Given the severity of the problem and the lack of progress anyone has had in addressing it, this article suggests that due to their structure, pensions are fatally flawed and should stop being offered. Part II elaborates on the size and scope of the nation\u27s pension funding problem, which affects governmental entities of all kinds and threatens taxpayers everywhere. Part III lays out why this problem has been so difficult to solve and develops the idea that there are so many political, cultural, and even psychological factors weighing against the kind of action required that the change we need is unlikely to ever occur. Part IV recommends the straightforward solution identified above. It sets forth how such a solution would work-given the currently existing status of public pensions in America-and proposes the kind of prohibitory language that would suffice to solve the problem