Volume 55, Issue 4

The Resilience of Property

Resilience is essential to the ability of property to face transforming social and environmental change. For centuries, property has responded to such change through a dialectical process that identifies emerging disciplinary perspectives and debates conflicting values and norms. This dialectic promotes the resilience of property, allowing it to adapt to changing conditions and needs. Today the mainstream economic theory dominating common law property is progressively being intertwined with constitutionally protected property, undermining its long-term resilience. The coupling of the economic vision of ordinary property with constitutional property embeds the assumptions, choices, and values of the economic theory into both realms of property without regard for property’s other relational planes.

A real-life theory of property—one based on a theory–practice link—sees the property landscape as a function of interactions among possible property arrangements and other perspective-based systems, including natural systems. Understanding property as a function of those relational planes is important to preserving its resilience. Research on the dynamics of change in social–ecological systems provides important insight into how institutions, like property, that manage resources can promote resilience. The mainstream economic theory lacks the openness and interdisciplinary inclusion needed to handle complex disturbances, ignoring conflicting perspectives and alternative visions that have played a significant role in the evolution of property. Often presented as involving either/or choices, the mainstream theory takes a singular perspective that overlooks important dialectical interactions. As subsystems of larger natural systems, complex societies need a resilient property system open to different perspectives and new knowledge if they are to handle the serious challenges of the future.

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America’s Fundamental and Vanishing Right to Bail

“All persons shall be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great.” This is the “consensus” text of one of the most fundamental rights in American history. Even before the Bill of Rights was proposed to the states, Congress ensured this right in the U.S. territories with the Northwest Ordinance of 1787 and in the federal courts with the Judiciary Act of 1789. The states protected the right even more strongly—48 states protected this right as recently as a generation ago, and 42 states protected the right in at least one of their state constitutions. When the Fourteenth Amendment was ratified in 1868, more than three-fourths of the states—29 out of the then 37—provided the Consensus Right to Bail in their state constitutions. In these states, persons accused of a crime (other than a capital offense) had the right to be released on bail if they could offer a sufficient surety.

Despite its centrality to America’s constitutional history, the Consensus Right to Bail has been ignored in historical and legal scholarship. Based on a statistical analysis of all present and historical state constitutions, this Article presents the “consensus” text of this fundamental right for the first time. The articulation of the right to bail was remarkably consistent across states, hence forming a consensus. Although Congress—through the Judiciary Act of 1789—used different words to express the right to bail, the substance of the right to bail was the same under state and federal law and was stable for 200 years.

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Privacy Protests: Surveillance Evasion and Fourth Amendment Suspicion

The police tend to think that those who evade surveillance are criminals. Yet the evasion may only be a protest against the surveillance itself. Faced with the growing surveillance capacities of the government, some people object. They buy “burners” (prepaid phones) or “freedom phones” from Asia that have had all tracking devices removed, or they hide their smartphones in ad hoc Faraday cages that block their signals. They use Tor to surf the internet. They identify tracking devices with GPS detectors. They avoid credit cards and choose cash, prepaid debit cards, or bitcoins. They burn their garbage. At the extreme end, some “live off the grid” and cut off all contact with the modern world.

These are all examples of what I call privacy protests: actions individuals take to block or to thwart government surveillance for reasons unrelated to criminal wrongdoing. Those engaged in privacy protests do so primarily because they object to the presence of perceived or potential government surveillance in their lives. How do we tell the difference between privacy protests and criminal evasions, and why does it matter? Surprisingly scant attention has been given to these questions, in part because Fourth Amendment law makes little distinction between ordinary criminal evasions and privacy protests. This Article discusses the importance of these ordinary acts of resistance, their place in constitutional criminal procedure, and their potential social value in the struggle over the meaning of privacy.

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Tribal Renewable Energy Development Under the HEARTH Act: An Independently Rational, but Collectively Deficient, Option

Increased domestic energy production is of enhanced importance to the United States. Given the growing focus on domestic energy development, many, including tribal governments, have increasingly looked to Indian country for potential energy development opportunities. Such attention is warranted, as abundant alternative and renewable energy sources exist within Indian country. Many tribes are increasingly exploring possible opportunities related to alternative and renewable energy development. Despite this interest, large alternative and renewable energy projects are virtually absent from Indian country. This article explores why such little development is happening despite the great potential for alternative and renewable energy development in Indian country and strong tribal interest in such development.

Congress enacted the Helping Expedite and Advance Responsible Tribal Homeownership Act (HEARTH Act) in July 2012 to address one of the obstacles to alternative and renewable energy development in Indian country—federal approval for leases of tribal lands. In brief, the HEARTH Act allows tribes with tribal leasing provisions preapproved by the Secretary of the Interior to lease tribal land without Secretarial approval required for each individual lease.

To fully understand the potential implications of the HEARTH Act, this Article explores obstacles to effective energy development in Indian country, what the HEARTH Act is and how it supposedly addresses those obstacles, and some significant problems associated with enactment of the HEARTH Act—specifically, the mandatory environmental review provisions and waiver of federal liability, and the impact of the liability waiver on the federal government’s trust responsibility to federally recognized tribes. The article ends with some concluding thoughts on how the HEARTH Act and potential future reforms to the existing federal regulatory scheme applicable to energy development in Indian country might better address tribal sovereignty and the federal trust responsibility to Indian country.

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Copyright Preregistration: Evidence and Lesson From the First Seven Years, 2005–2012

In 2005 Congress created a new copyright formality: preregistration. Preregistration addresses a growing phenomenon in which copyrighted works are leaked to the Internet prior to official release. Preregistering a work allows copyright owners immediate access to courts and an expanded menu of remedies.

Based on an originally constructed dataset coupled with user interviews, we study how preregistration has been used from its 2005 inception to the end of 2012. Over 6,000 works have been preregistered in six eligible categories. Several lawsuits were filed in reliance on preregistrations. Most preregistrations are of motion pictures and literary works. Substantial commercial use of the system has been limited to the movie and TV industries. The music, publishing, and computer software industries virtually have not used it in the ordinary course of business. A few particular users have preregistered a great number of works. Different from the use anticipated by Congress, preregistrations were often obtained after infringement (or even a business dispute) had already started. Most preregistrations were made by individual, small-entity, or other one-time users.

The Article recommends that: (1) the duration of preregistrations should be limited; and (2) preregistration (and other copyright) fees should vary with entity size. It offers lessons for formalities and copyright reform: (1) Digital-age formalities may not give rise to the distributional concerns that characterized old formalities; (2) newly minted formalities may limit, rather than expand, access to expressive works; (3) the rates of subsequent registration of preregistered works vary across categories and can inform copyright lawmaking; and (4) the Copyright Office’s views may be affected by its institutional interest.

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The Absolute Priority Rule for Individuals After Maharaj, Lively, and Stephens: Negotiations or Game Over?

A husband and wife owned and operated an auto body repair shop in Virginia and, after falling victim to fraud, were left with considerable debt. The couple filed for Chapter 11 Bankruptcy—the chapter of the Bankruptcy Code typically used for corporate reorganizations—because their debt exceeded the limits for types of bankruptcies usually used by individuals. The couple filed a reorganization plan, which provided for the continued ownership and operation of their auto body business, and for the payment of the claims of unsecured creditors with future income from the business. All but one of the creditors approved the plan. Despite the creditor’s objection, the couple began a process called a “cram down” to confirm the plan.

Whether this couple would be allowed to retain their business without the consent of the dissenting creditor came down to a very specific section of the Bankruptcy Code, commonly referred to as “the absolute priority rule.” The absolute priority rule traditionally prevented businesses from retaining assets, such as stock equity, when forcing through a bankruptcy plan over the objections of creditors. However, recent amendments to the Code made it unclear whether this rule continued to apply to individuals in addition to businesses.

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Of Information, Trust, and Ice Cream: A Recipe for a Different Perspective on the Privacy of Health Information

The concept of privacy is inescapable in modern society. As technology develops rapidly and online connections become an integral part of our daily routines, the lines between what may or may not be acceptable continue to blur. Individual autonomy is important. We cannot, however, allow it to suffocate the advancement of technology in such vital areas as public health. Although this Note cannot lay out detailed instructions to balance the desire for autonomy and the benefits of free information, it attempts to provide some perspective on whether we are anywhere close to striking the right balance. When the benefits of health information technology are so glaring, and yet its progress has been so stifled, perhaps we have placed far too much value—at least in the health care context—on individual privacy.

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At an Economic Loss: Assessing the Implications of Sullivan v. Pulte Home Corp. for Arizona Construction Contractors

Many Arizona homeowners are noncontracting subsequent purchasers—they are secondhand buyers who neither bargained for nor contracted with the builders of their homes. When a construction defect was discovered, the economic loss doctrine stood as both a hurdle for those homeowners and a safety net for homebuilders.

But it turns out that the economic loss doctrine might not be such a hurdle after all. In Sullivan v. Pulte Home Corp., the Arizona Supreme Court held that the doctrine does not bar tort claims by noncontracting subsequent purchasers. The decision is likely to cause uncertainty for homeowners and homebuilders alike as Arizona courts wade through murky waters to figure out what Sullivan means for construction-defect litigation. Many unanswered questions remain after the Court’s short opinion. Can subsequent purchasers really bring tort claims more than a decade after construction has ended? The Arizona Supreme Court says yes, in theory, they can.

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The Frankenstein Bill: House Bill 2305 and Direct Democracy

The Arizona Constitution was second in the nation to incorporate direct democracy procedures in its original text. Arizona voters have the constitutionally reserved rights of initiative, referendum, and recall. Traditionally, Arizona courts have evaluated initiative and recall petitions under the standard of substantial compliance, i.e., so long as petitions substantially complied with election requirements, the courts would not entertain postelection challenges to the petition. The Arizona Supreme Court reaffirmed this principle most recently in 2012 with its decision in Pedersen v. Bennett. But on June 14, 2013, in the last few hours of the legislative session, the Arizona legislature hastily passed House Bill 2305, which, among other things, tightens the standard of judicial review from substantial compliance to strict compliance. In this Note, I argue that this portion of the “Frankenstein” bill, so named because of its piecemeal creation from several “dead” bills, is unconstitutional because it violates separation of powers principles by telling the Supreme Court how to interpret the Constitution, a function that belongs solely to the judiciary. This Note goes on to discuss the implications of this bill, namely the erosion of Arizona’s tradition of direct democracy, and then reviews the ongoing direct democracy efforts against H.B. 2305.

Law & Policy Note | View PDF