June 28, 2012
Mulvaney on Exactions for the Future
Timothy M. Mulvaney (Texas Wesleyan) has posted Exactions for the Future, Baylor Law Review vol. 64, p. 101 (2012). The abstract:
New development commonly contributes to projected infrastructural demands caused by multiple parties or amplifies the impacts of anticipated natural hazards. At times, these impacts only can be addressed through coordinated actions over a lengthy period. In theory, the ability of local governments to attach conditions, or “exactions,” to discretionary land use permits can serve as one tool to accomplish this end. Unlike traditional exactions that regularly respond to demonstrably measurable, immediate development harms, these “exactions for the future” — exactions responsive to cumulative anticipated future harms — admittedly can present land assembly concerns and involve inherently uncertain long-range government forecasting. Yet it is not clear these practical impediments are sufficient to warrant the near categorical prohibition on such exactions that is imposed by current Takings Clause jurisprudence. After analyzing the features of takings law that constrict the use of such an exactions scheme, this article offers an alternative approach to exaction imposition involving temporal segmentation of the government’s sought-after interest, which could provide a public tool to address anticipated future harms while offering at least some protection against takings claims.
June 12, 2012
Davidson on Property and Identity
The Harvard Civil Rights and Civil Liberties Law Review has published Property and Identity: Vulnerability and Insecurity in the Housing Crisis, 47 Harv. C.R.-C.L. L. Rev. 119 (2012) by Nestor Davidson (Fordham). This piece builds on the author's previous theoretical work in the area of property and personal identity by taking a hard look at the, perhaps evanescent, soul-searching occasioned by the nation's mortgage crisis. Here's an excerpt from the introductory section:
A growing body of evidence in a number of fields has challenged the ethos of acquisition thatprevailed before the crash, and these insights can form the basis for a different understanding of property and identity. It is not clear, however, that this opportunity is taking hold. As the economy stabilizes, early signs of a rebalance involving a shift toward an emphasis on personal relationships and experiences rather than possessions seem to be fading.
The housing crisis, in short, holds lessons about the ineluctable distortions that the intimate landscape of property can generate. This Article focuses on three facets of that landscape. Part I examines the role that status anxiety played in the housing boom. Part II turns to emotional aspects of how the pendulum has swung against homeownership after the downturn. Part III reflects on what these dynamics suggest for rethinking homeownership as a touchstone, and for re-examining the centrality of consumption more broadly. The Article concludes in Part IV by arguing that the legal system and housing policy must be more cognizant of these emotional variables, even if the institutional mechanisms available to do so are relatively limited.
June 01, 2012
Widener's Constitutional Environmenal Rights Workshop
Yesterday, I spent a delightful jam-packed six hours at a constitutional environmental rights workshop at Widener Law School (Delaware not Pennsylvania) hosted by James May and Erin Daly. The workshop brought in scholars from many corners of the US and elsewhere to talk about how environmental rights are and should be embodied in national and subnational constitutions.
The participants indulgently listened to me ramble about a very new project I have examining the constitutionalization of the Public Trust Doctrine. While many others have written cogently and persuassively about the role of the public trust doctrine (Sax, Thompson, and Blumm jump quickly to ming) and powerhouses like Robin Kudis Craig (I love that she has a wikipedia page) have even helpfully catalogued public trust language in state constitutions, I am seeking to explore the "so what" part of the question. If a state chooses to constitutionalize their public trust doctrine, does that result in any on the ground changes? Are those state more likely to have healthier environments? Are those courts likely to be more protective of the environment? Will the state legislatures feel obligated empowered to pass legislative protecting natural resources? These are the questions I am seeking to explore. (Any advice on how to do so would be warmly welcomed).
May 30, 2012
Ely on Property Rights and the Supreme Court in the Gilded Age
James W. Ely, Jr. (Vanderbilt) has posted Property Rights and the Supreme Court in the Gilded Age, forthcoming in the Journal of Supreme Court History. The abstract:
This article challenges the conventional wisdom about the property-rights jurisprudence of the Supreme Court in the period 1870-1900. It asserts that the Court was animated to protect the rights of property owners as a means of upholding individual liberty against governmental overreaching. The justices saw private property as essential for the enjoyment of liberty. This commitment to individualistic values was reinforced by utilitarian considerations. The Court repeatedly stressed the vital role of property and contractual rights as the basis of economic growth. In upholding property right the justices drew upon the long-standing Anglo-American tradition of property-conscious constitutionalism. The essay concluded that there was a close affinity between the views of the framers of the Constitution concerning the sanctity of property rights and the jurisprudence of the Gilded Age.
Professor Ely's article makes a really important connection between constitutional property theory in the founding era and a century later in the gilded age. These two eras have been largely treated as completely separate in the scholarship about the development of property as a constitutional concept--and these stories in turn have influenced the understanding of property rights through the twentieth century to today. The analysis contributes to a historical understanding of property rights as a central component of individual liberty in the Constitution.
May 22, 2012
Kelly on Strategic Spillovers
Daniel B. Kelly (Notre Dame) has posted Strategic Spillovers, 111 Columbia Law Review 1641 (2011). The abstract:
The conventional problem with externalities is well known: Parties often generate harm as an unintended byproduct of using their property. This Article examines situations in which parties may generate harm purposely, in order to extract payments in exchange for desisting. Such “strategic spillovers” have received relatively little attention, but the problem is a perennial one. From the “livery stable scam” in Chicago to “pollution entrepreneurs” in China, parties may engage in externality-generating activities they otherwise would not have undertaken, or increase the level of harm given that they are engaging in such activities, to profit through bargaining or subsidies. This Article investigates the costs of strategic spillovers, the circumstances in which threatening to engage in these spillovers may be credible, and potential solutions for eliminating, or at least mitigating, this form of opportunism through externalities.
May 20, 2012
Penalver & Alexander: An Introduction to Property Theory
Eduardo M. Penalver (Cornell) and Gregory S. Alexander (Cornell) have posted the introduction to their new book on Property Theory. The book is An Introduction to Property Theory, in the series Cambridge Introductions to Philosophy and Law. The intro chapter is on SSRN, and here is the abstract:
This book surveys the leading modern theories of property – Lockean, libertarian, utilitarian/law-and-economics, personhood, Kantian, and human flourishing – and then applies those theories to concrete contexts in which property issues have been espe- cially controversial. These include redistribution, the right to exclude, regulatory takings, eminent domain, and intellectual property. The book highlights the Aristotelian human flourishing theory of property, providing the most comprehensive and accessible introduction to that theory to date. The book’s goal is neither to cover every conceivable theory nor to discuss every possible facet of the theories covered. Instead, it aims to make the major property theories comprehensible to beginners, without sacrificing accuracy or sophistication. The book will be of particular interest to students seeking an accessible introduction to contemporary theories of property, but even specialists will benefit from the book’s lucid descriptions of contemporary debates.
May 09, 2012
Alexander & Dagan on Properties of Property
Just got in the mail a copy of the great new book by Gregory S. Alexander (Cornell) & Hanoch Dagan (Tel-Aviv), Properties of Property (Wolters Kluwer Law & Business, 2012). From the description:
Broadly interdisciplinary, Properties of Property provides an overview of cutting-edge work from leading legal scholars as well as important non-legal scholars. The text is designed for an international audience, particularly teachers, scholars, and students throughout Europe, the British Commonwealth, and China. Properties of Property is perfectly suited for courses and seminars in other departments, from history to urban planning, both at the graduate and undergraduate level. It is a must for any law school library, even if no seminar on property theory is offered, because it appeals to law school students as well as scholars and graduate students interested in property. A Teacher’s Guide provides different ways the authors have organized property theory seminars using the book; suggestions for using the book as a companion to a property casebook; and discussion of questions that are posed in the Notes.
This looks like a great read; an outstanding survey of the leading interdisciplinary scholarship for any scholar or practitioner in property, land use, and environmental law; and it would make a perfect text for a property seminar or as a supplement to a doctrinal course.
April 09, 2012
Katz on Formal Private Property Rights and State Power
Larissa M. Katz (Queen's University) has an important new piece up: 'Governing Through Owners': How and Why Formal Private Property Rights Enhance State Power, forthcoming in the Pennsylvania Law Review (2012). The abstract:
A system of formal private property rights is a network of offices through which states can allocate responsibility to individuals on a mass scale for a wide variety of tasks, including some of the state’s core governance functions. A system of property rights do not straightforwardly constrain the state; in some contexts, they enhance state power, too. Because many of the state’s core governance functions are territorially defined (such as the maintenance of peace and order within the territory, defense of the territory from external threats, and the provision of infrastructure), this phenomenon appears most clearly in the case of private property rights in land. A network of landowners is a useful (and sometimes crucial) tool that enables a state to govern locally in the farthest reaches of its territory, even when it lacks the capacity or will to use other more formal tools for governance, such as governing by bureaucracy or licence. Thus, it is useful to think of the state’s power to define property rights in a manner that includes the obligation to carry out core state governance functions as itself a mode of governance. I call this “governing through owners.”
This model of state-owner relations emerges from two important conceptual starting points: first, the nature of ownership as an office through which the state assigns burdens; and second, what I call the “survival conditions” of a territorially defined state, namely, the establishment of basic governmental functions throughout its territory.
Looks like a must-read.
April 02, 2012
Claeys on Locke and Productive Use
Eric R. Claeys (George Mason) has another new paper out: Locke Unlocked: Productive Use in Trespass, Adverse Possession, and Labor Theory. The abstract:
Most American property scholars acknowledge that “Of Property,” chapter 5 of John Locke’s Second Treatise of Government, deserves a significant place in the canon of property theory. Virtually all of those scholars, however, understand Of Property in one of several manners that trivialize its argument. This Article draws on scholarship published in the last 20 years in political philosophy and intellectual history, by scholars who understand Locke to propound a theory of labor called here “productive labor theory.” Productive labor theory judges legal and other normative institutions by how effectively the domains of freedom they create in relation to external assets help a wide range of citizens extract from those assets benefits likely to contribute to their rational flourishing.
This Article restates the main tenets of productive labor theory as propounded in that political-philosophy and intellectual-history scholarship. To make productive labor theory concrete, the Article illustrates how it applies to the prima facie case of trespass to land, the remedies for ongoing encroachments, and adverse possession and a few other common defenses to trespass. To situate productive labor theory in relation to legal academics’ impressions, the Article contrasts productive labor theory with act utilitarianism, with the libertarian rendition of Lockean worked out by Robert Nozick in Anarchy, State, and Utopia (1974), and with the labor-desert claims commonly associated with section 27 of the Second Treatise.
March 28, 2012
Saxer on Managing Water Rights Using Fishing Rights
Shelley Ross Saxer (Pepperdine) has posted Managing Water Rights Using Fishing Rights as a Model, forthcoming in Marquette Law Review Vol. 95 (2011). The abstract:
This Article addresses the need to view water rights as licenses subject to government revocation, without just compensation, in the same way that fishing rights are viewed as licenses subject to government management. It focuses specifically on the methods used to address water resource allocation in the Sacramento-San Joaquin River Delta in California, and on fish allocation issues in the Pacific Northwest. It explores property rights in water and fish, particularly in regard to Fifth Amendment takings challenges when government regulations diminish water rights and fishing rights. The Article concludes by recognizing that both water and fish resources should be managed as ecosystems and governed by the public trust doctrine, and rejecting private property rights in either fish or water as a violation of the public trust doctrine, in which public resources are given away to private interests.
March 24, 2012
Harris on a Railway, a City, and Public Regulation of Private Property
Douglas C. Harris (UBC Faculty of Law) has posted A Railway, a City, and the Public Regulation of Private Property: CPR v. City of Vancouver, published in CANADIAN PROPERTY LAW STORIES, James Muir, Eric Tucker, and Bruce Ziff, eds., Osgoode Society and Irwin Law, 2012. The abstract:
The doctrine of regulatory or constructive taking establishes limits on the public regulation of private property in much of the common law world. When public regulation becomes unduly onerous — so as, in effect, to take a property interest from a private owner — the public will be required to compensate the owner for its loss. In 2000, the City of Vancouver passed a by-law that limited the use of a century-old rail line to a public thoroughfare. The Canadian Pacific Railway, which owned the line, claimed the regulation amounted to a taking of its property for which the city should pay compensation. The case, which rose to the Supreme Court of Canada in 2006, marked that court’s first engagement with the doctrine of regulatory taking (also known in Canada as de facto expropriation) in nearly twenty years. This chapter explores the intertwined histories of a railway company and a city that gave rise to CPR v. City of Vancouver. It then analyzes the court decisions and considers the role of courts in mediating the appropriate boundary between private property and public regulation in a jurisdiction where there is no constitutional protection for private property.
March 21, 2012
Claeys on the Bundle of Sticks
Eric R. Claeys (George Mason) has posted Bundle-of-Sticks Notions in Legal and Economic Scholarship. This piece is part of the Econ Journal Watch symposium Property--A Bundle of Rights, Vol. 8, No. 3, pp. 205-214, September 2011. The abstract:
The phrase “bundle of rights” does not serve as an accurate conceptual definition of property. Nor has that phrase provided a helpful metaphor as used in Ronald Coase’s article “The Problem of Social Cost” (1960) and subsequent legal and economic scholarship. Coase’s usage portrays property rights as a collection of individualized permissions to use an asset, when in sound conceptual usage “property” signifies a domain of authority to decide how to use the asset. The “bundle” metaphor may be understood to state that an owner has a right to deploy his property in any specific manner fairly implied by his general rights of ownership. Although this metaphorical usage is helpful, it remains parasitic on a sound conceptual definition of property. Property is best conceived of as a right securing a normative interest in determining exclusively the use of an asset external to the person of the owner.
March 19, 2012
Rosser on Progressive Property
Ezra Rosser (American) has posted The Ambition and Transformative Potential of Progressive Property , forthcoming California Law Review (2013). Last year, I posted about Ezra's presentation at the 2nd annual ALPS gathering. He's done quite a bit with it since. Here's the abstract:
The emerging progressive property school of thought champions and finds its meaning in the social nature of property. Rejecting the idea that exclusion lies at the core of property law, progressive property scholars call for a reconsideration of the relationships owners and non-owners have with property and with each other. Despite these ambitions, so far progressive property scholarship has largely confined itself to questions of exclusion and access. This paper argues that such an emphasis glosses over the race-related acquisition and distribution problems that plague American history and property law. The modest structural changes supported by progressive property scholars fail to account for this racial history and, by so doing, present a limited vision of the changes to property law that progressive scholars should support. Though sympathetic with the progressive property political and scholarly orientation and the policy arguments made regarding exclusion and access, I argue that the first priority of any transformative project of progressive property must be revisiting acquisition and distribution.
March 15, 2012
Long on Property Rights, Property Privileges, and the Physical Consequences of Word Choice
Jerrold A. Long (Idaho), who just posted an article last week, has another one up: Waiting for Hohfeld: Property Rights, Property Privileges, and the Physical Consequences of Word Choice. The abstract:
An important part of our institutional and cultural history is our understanding of a system of property interests. The most common trajectory of land-use regulation (or the lack thereof) appears consistent with a property meta-narrative that informs multiple academic disciplines and levels of human interaction. This meta-narrative suggests that all land-use decisions begin with an assumption about the nature and extent of property rights held by potentially affected landowners, and that the ultimate end of any land-use regime is to “protect” those assumed property rights from unwarranted or unjustified intrusion by government. Because the law is a distinct linguistic environment in which word choices, and definitions, have significant consequences, the rhetorical landscape of a property dispute plays a significant role in determining the dispute’s ultimate outcome. In most land-use disputes, all participants make one important concession, or assertion, before the discussion begins. The often unchallenged assertion is the claim that the discussion is about property rights. Once a particular property interest is characterized as a “right,” the community’s political capacity to regulate that property diminishes substantially. Consequently, our decisions to characterize as “rights” those settings, circumstances and relationships that are better and more accurately understood as “privileges” changes our focus from the community to the individual, and necessarily weakens the political justification for, and community understanding of, most resource- or community-protective ordinances. This article considers contemporary property jurisprudence, theory, and conflict in a Hohfeldian context to demonstrate how our default rhetorical landscape leads to real and unnecessary negative social and environmental effects.
Smith on Property as the Law of Things
Henry E. Smith (Harvard) has posted what looks to be a very important property theory piece, Property as the Law of Things, forthcoming in the Harvard Law Review. The abstract:
The New Private Law takes seriously the need for baselines in general and the traditional ones furnished by the law in particular. One such baseline is the “things” of property. The bundle of rights picture popularized by the Legal Realists downplayed things and promoted the expectation that features of property are detachable and tailorable without limit. The bundle picture captures too much to be a theory. By contrast, the information cost, or architectural, theory proposed here captures how the features of property work together to achieve property’s purposes. Drawing on Herbert Simon’s notions of nearly decomposable systems and modularity, the article shows how property employs a thing-based exclusion-governance architecture to manage complexity of the interactions between legal actors. Modular property first breaks this system of interactions into components, and this begins with defining the modular things of property. Property then specifies the interface between the modular components of property through governance strategies that make more direct reference to uses and purposes, as in the law of nuisance, covenants, and zoning. In contrast to the bundle of rights picture, the modular theory captures how a great number of features of property – ranging from in-rem-ness, the right to exclude, and the residual claim, through alienability, persistence, and compatibility, and beyond to deep aspects like recursiveness, scalability, and resilience – follow from the modular architecture. The Article then shows how the information cost theory helps explain some puzzling phenomena such as the pedis possessio in mining law, fencing in and fencing out, the unit rule in eminent domain, and the intersection of state action and the enforcement of covenants. The Article concludes with some implications of property as a law of modular things for the architecture of private law.
March 05, 2012
Dagan: Inside Property
Hanoch Dagan (Tel Aviv) has posted Inside Property, forthcoming in University of Toronto Law Journal, Vol. 63, No. 1, January 2013. The abstract:
Taking seriously the complexity and heterogeneity of property law, this Essay claims that a proper conception of property must account for both governance and inclusion. Neglecting governance obscures the significance of the internal life of property, which is often structured by sophisticated mechanisms aiming to facilitate various forms of interpersonal relationships in ways that no contractual arrangement can. Ignoring inclusion improperly marginalizes non-owners’ rights to entry in categories of cases where inclusion is an indispensable feature of the property institution under examination.
Looking inside property in these two senses requires abandoning the conception of property as an exclusive right and substituting it with a pluralist conception. Property should be understood as an umbrella for a limited and standardized set of institutions, which serve as important default frameworks of interpersonal interaction regarding various types of resources. At its best, the plurality of property configurations — the different contents of owners’ rights in these different property institutions — enables property law to vindicate differing balances among the different values that property can serve, according to the type of social relationship and the nature of the resource at stake. The pluralist conception of property, therefore, not only fits property law better; it is also the only understanding of property suitably attending to and facilitating the individuality-enhancing role of multiplicity, which is indispensable for meaningful autonomy.
February 01, 2012
Michelman on the Property Clause Question
Frank Michelman (Harvard) has posted "The Property Clause Question." In this essay, the preeminent property theorist of our time offers an engaging look at the constitutional protection of private property rights that a society seeking to establish a liberal social democracy should consider. Here's the abstract:
A “property clause” is a dedicated text in the written basic law of a constitutional-democratic state, addressing the question of the security of asset-holdings (and of their values to their owners) against impairment by action or allowance of the state. The clause provides a defensive guarantee against such impairments, in the form of a trumping right of every person to be protected – perhaps not absolutely and unconditionally, but not negligibly, either – against state-engineered losses in lawfully established asset-holdings or asset-values.
How should someone writing a constitution for an expectantly “social liberal” state regime think about the question of a property clause? Without suggesting that there can be any one-size-fits-all sort of answer to the question of including such a clause or not, this paper confines itself to doubting sharply one sort of a reason our constitution-writers might consider for including one – namely, that a liberal constitutional bill of rights ought to contain clauses covering all classes of interests of persons that qualify in liberalism as basic rights and freedoms and the interest distinctively protected by a property clause does so qualify – and suggesting some pros and cons regarding a quite different sort of reason for inclusion that the writers will also undoubtedly ponder – namely, that the clause will serve to keep lawmakers and constitutional adjudicators properly attuned to a national foundational commitment to a system of political economy in which markets play a key role.
This essay, prepared as an after-dinner talk for the Conference on Constitutional Revolutions and Counter-Revolutions held at the New School for Social Research, May 5-7, 2011, is a companion to my “Liberal Constitutionalism, Property Rights, and the Assault on Poverty,” Stellenbosch Law Review (2012) (forthcoming), which treats more expansively some points made summarily here. A version of this essay will appear in Constellations 12 (2012).
January 18, 2012
Ellickson on the Bundle of Sticks
Last fall we posted about the Econ Journal Watch Symposium "Property: A Bundle of Rights?," with contributions from a number of leading scholars. Just recently, Robert Ellickson's contribution was posted on SSRN, and it's worth a highlight: Two Cheers for the Bundle-of-Sticks Metaphor, Three Cheers for Merrill and Smith, Econ Journal Watch, Vol. 8, No. 3, p. 215, September 2011. The abstract:
Viewing property rights as a “bundle of sticks” can be descriptively clarifying because the law commonly entitles an owner of a particular resource to split up entitlements in it. Nonetheless, Thomas Merrill and Henry Smith, the most prominent critics of the metaphor, assert that this conception both ignores the existence of various legal constraints on the decomposition of property rights, and also encourages lawmakers to support the excessive splintering of entitlements. These concerns are well-grounded. More controversial are Merrill and Smith’s inclinations to equate private property with property generally, to deny that human capital can be characterized as property, and to assert that affirmative duties never attach to property ownership.
All of the essays from the Bundle Symposium are very, very interesting. We've previously mentioned the ones by Larissa Katz and Stephen Munzer. As many of us begin the Property course this spring semester, it's incredibly helpful to read all of these fresh insights and thoughtful debates that make the classic metaphor still relevant.
December 20, 2011
Davidson on a Hamiltonian Vernacular as a Social Function of Property
Nestor M. Davidson (Fordham) has posted Sketches for a Hamiltonian Vernacular as a Social Function of Property, Fordham Law Review, Vol. 80 (2011). The abstract:
This symposium article examines the intersection between Léon Duguit’s concept of the social function of property, predicated on an affirmative duty on owners to put their property to productive use for the sake of social solidarity, and a tradition in the property law of the United States that similarly reflected this kind of pro-development norm. The article associates the impulse to associate ownership with a productivity oriented social function with certain Hamiltonian themes at the founding and in the early nineteenth-century salus populi tradition, and argues that the imperative remains a background norm in the United States that contrasts with classical liberal absolutism and certain strains of civic republican property norms.
Absolutely fascinating-- an original insight that makes an important contribution to our understanding of early republic property theory and its implications for property law today.
December 16, 2011
Munzer in defense of the Bundle Theory
Stephen R. Munzer (UCLA) has posted A Bundle Theorist Holds On to His Collection of Sticks, Econ Journal Watch, Vol. 8, No. 3, pp. 265-73, September 2011. The abstract:
For nearly a century, most persons who have studied or written about property have conceived of it as a bundle of rights or, colloquially, as a bundle of sticks. In the mid 1990s, several philosophically minded academic lawyers questioned whether property should be thought of as a bundle at all. The impact of their work is reflected in Merrill and Smith (2007), a highly regarded and intellectually challenging casebook used in many U.S. law schools. Merrill and Smith emphasize that property is centrally a right to exclude and is generally held in rem, that is, is good against all the world. They find bundle theories of property defective for various reasons. This essay argues to the contrary. There are solid grounds for holding on to at least some bundle theories, which facilitate the careful analysis of the complexity of property. Moreover, Merrill and Smith’s criticisms are often misguided or ineffective. Lastly, their account gives an overly simple picture of property and views property law as a more unified subject than it actually is.
I haven't developed my own position on whether the bundle theory is the most accurate philosophical account of property, but I use the heck out of it in teaching. I've found that having the class think of property as a bundle of rights that can be arranged in different ways, and then extrapolating that concept over topics such as estates, future interests, co-ownership, and servitudes really helps students wrap their heads around these otherwise esoteric subjects, and provides a good framework for understanding property. I'm glad to see this short philosophical essay by Munzer to assure me that at least I'm not horribly behind the times in teaching about sticks.