Saturday, August 11, 2012

Can Eminent Domain Solve the Mortgage Crisis?

There has been some discussion over the past couple of months over an innovative proposal to have governments use the eminent domain power to take ownership of underwater mortgages, to decrease the risk of default and then refinance the obligations, all to promote the common good.  Here are some links to give you a sense of the major points of this debate.

The launch of this idea comes from a proposal by Law Professor Robert C. Hockett (Cornell) in his piece It Takes a Village: Municipal Condemnation Proceedings and Public/Private Partnerships for Mortgage Loan Modification, Value Preservation, and Local Economic Recovery.  The abstract:

Respected real estate analysts now forecast that the U.S. is poised to experience a renewed round of home mortgage foreclosures over the coming 6 years. Up to 11 million underwater mortgages will be affected. Neither our families, our neighborhoods, nor our state and national economies can bear a resumption of crisis on this order of magnitude.

I argue that ongoing and self-worsening slump in the primary and secondary mortgage markets is rooted in a host of recursive collective action challenges structurally akin to those that brought on the real estate bubble and bust themselves. Collective action problems of this sort require duly authorized collective agents for their solution. At present, the optimally situated such agents for purposes of mortgage market clearing are municipal governments exercising their traditional eminent domain authority.

I sketch a plan pursuant to which municipalities, in partnership with investors, can condemn underwater mortgage notes, pay mortgagees fair market value for the same, and systematically write down principal. Because in so doing they will be doing what parties themselves would do voluntarily were they not challenged by structural impediments to collective action, municipalities acting on this plan will be rendering all better off. They will also be leading the urgently necessary project of eliminating debt overhang nationwide and thereby at last ending our ongoing debt deflation.

Professor Hockett's idea was then promoted in the media by, among others, Prof. Robert J. Shiller (Yale--Economics & Finance), in the New York Times Piece Reviving Real Estate Requires Collective Action.  As the title indicates, Schiller theorizes the mortgage crisis as in part a collective action problem that can be addressed by Hockett's proposal to use eminent domain to seize underwater mortgages. 

But eminent domain law needn’t be restricted to real estate. It could be applied to mortgages as well. Governments could seize underwater mortgages, paying investors fair market value for them. This is common sense too. The true fair market value for these mortgages is arguably far below their face value, given the likelihood of default, with its attendant costs.

Professor Hockett argues that a government, whether federal, state or local, can start doing just this right now, using large databases of information about mortgage pools and homeowner credit scores. After a market analysis, it seizes the mortgages. Then it can pay them off at fair value, or a little over that, with money from new investors, issuing new mortgages with smaller balances to the homeowners.

Yesterday in The Atlantic Cities, Amanda Erickson published an excellent overview story about the proposal, Can Eminent Domain Solve our Mortgage Woes?.  Of note to us are the comments by the eminent eminent domain expert (that's not a typo) Prof. Thomas Merrill (Columbia). 

It's a clever idea. But is it legal? "It's very unusual," says Thomas W. Merrill, a law professor at Columbia University who specializes in property law. But, he notes, "this doesn't mean it's unconstitutional."

Before the landmark 2005 Kelo vs. New London decision, Merrill says, there's little doubt that the courts have upheld this kind of law. "Before Kelo, courts took a hands-off approach," Merrill says. In the 1984 case Hawaii Housing Authority vs. Midkiff, the Supreme Court ruled that the Hawaiian legislature could take a property controlled by landlords and sell it back to leasees. "Condemning a landlord's interest in property to transfer to a tenant is not too different," Merrill says.

But Kelo changed that. In that case, the Supreme Court ruled that cities could use eminent domain to transfer land from one private owner to another, and that doing so for economic development purposes constitutes a public use. "At this point, I guess you'd have to say all bets are off in terms of what is and isn't eminent domain," Merrill says.

And finally for now, Prof. Richard Epstein is critical of the idea. From More Nonsense on the Home Mortgage Front: Don't Let Municipal Governments Condemn Mortgages at Bargain Rates:

The idea has already been rightly panned by the Wall Street Journal. But the entire proposal needs still further consideration. First off, Hockett and his group insist that there is a huge collective action problem that prevents the rationalization of mortgage matters. And there is. It is called local government regulations that have blocked the foreclosure measures set out above. Handle those and the externalities to which they refer disappear. No longer do we have owners neglecting property or clogging the courts with endless motions.

Again, this post is just to give you some links to look at the arguments.  From my perspective, these are some fascinating arguments that illuminate not only the mortgage crisis but also the general debate over eminent domain. 

Matt Festa

August 11, 2012 in Constitutional Law, Eminent Domain, Finance, Housing, Local Government, Mortgage Crisis, Mortgages, Politics, Property Theory, Real Estate Transactions, Scholarship, Takings | Permalink | Comments (1) | TrackBack (0)

Thursday, August 9, 2012

Strahilevitz on Absolute and Relative Preferences in Property Law

Lior Strahilevitz (Chicago) has posted Absolute Preferences and Relative Preferences in Property Law, 160 University of Pennsylvania Law Review (2012).  The abstract:

This article suggests that the population is roughly divided between individuals primarily oriented toward absolute gains and losses, and those oriented toward relative gains and losses. That is, some people consistently care more about the absolute size of the pie slice they are eating, and others care more about how their percentage of the pie stacks up against their peers’ portions. This article examines how property law deals with that heterogeneity in relative and absolute preferences. It focuses initially on inheritance law, particularly cases in which a decedent with living children has adopted her grandchild or someone else within the bloodstream, engendering results that might be acceptable to an heir with absolute preferences but unacceptable to an heir with relative preferences. The article then shows how similar controversies play out in takings law and the law of easements. In many of these cases vehement disagreements between majority opinions and dissents can be understood as clashes between jurists who are focused on absolute resources and those who are focused on relative resources. The article then hypothesizes that some relatively low-stakes disputes explode into contentious lawsuits precisely because a landowner oriented towards absolute gains and losses is incapable of understanding a conflict from the perspective of his neighbor, for whom relative preferences are decisive. The article concludes by referencing examples from takings law and the law of waste, in which divergent assumptions about the prevalence of relative and absolute preferences render property doctrines ambiguous, tenuous, or incoherent.

In addition to being an important piece on property theory generally, Prof. Strahilevitz specifically examines the land use topics of takings and easements.  I think this analysis could also be extended to the debate over housing and urban form.  A must-read.

Matt Festa

August 9, 2012 in Property Theory, Scholarship, Servitudes, Takings | Permalink | Comments (0) | TrackBack (0)

Monday, August 6, 2012

Frischmann on Managing Congestion

Brett M. Frischmann (Cardozo) has posted Managing Congestion, which is a chapter from his book Infrastructure: The Social Value of Shared Resources, Oxford University Press, 2012.  The abstract:

This chapter considers partially (non)rival infrastructure and congestion. Specifically, it explains and analyzes congestions problems and solutions. It begins with the basic economic model of congestion, which assumes homogenous uses, and discusses various approaches to managing congestion. It turns to more complex congestion problems, involving heterogeneous uses and cross-crowding, and discusses management options. The chapter evaluates congestion management strategies for infrastructures as well as the relationship between commons management and congestion management.

The SSRN document also includes the book's Table of Contents, so you can view the larger outline for this valuable book. 

Matt Festa

August 6, 2012 in Comparative Land Use, Density, Planning, Property Theory, Scholarship, Urbanism | Permalink | Comments (0) | TrackBack (0)

Thursday, 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.

This is the latest important piece of Prof. Mulvaney's work on exactions and time.  Check it out, and Gig 'em Aggies! 

Matt Festa

June 28, 2012 in Constitutional Law, Property Rights, Property Theory, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Tuesday, 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.

Jim K.

June 12, 2012 in Housing, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, June 1, 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).

Jessie Owley

June 1, 2012 in Constitutional Law, Environmental Law, Environmentalism, History, Property, Property Rights, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, 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.

Matt Festa

May 30, 2012 in Constitutional Law, Property Rights, Property Theory, Scholarship, Supreme Court | Permalink | Comments (0) | TrackBack (0)

Tuesday, 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.

Matt Festa

May 22, 2012 in Nuisance, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, 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.

Matt Festa

May 20, 2012 in Eminent Domain, History, Property Rights, Property Theory, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 9, 2012

Alexander & Dagan on Properties of Property

Properties PropertyJust 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. 

Matt Festa

May 9, 2012 in Books, Property, Property Theory, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Monday, April 9, 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.

Matt Festa

April 9, 2012 in Property, Property Rights, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, April 2, 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.

Matt Festa

April 2, 2012 in Property, Property Rights, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, 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.

Matt Festa

March 28, 2012 in Environmental Law, Property Theory, Scholarship, Takings, Water | Permalink | Comments (0) | TrackBack (0)

Saturday, 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.

Matt Festa

March 24, 2012 in Caselaw, Comparative Land Use, Property Rights, Property Theory, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, 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.

Matt Festa

March 21, 2012 in Property Rights, Property Theory, Scholarship | Permalink | Comments (1) | TrackBack (0)

Monday, 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.

Jim K.

March 19, 2012 in Property, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, 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.

Matt Festa

March 15, 2012 in Property, Property Rights, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

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.

Matt Festa

March 15, 2012 in Eminent Domain, History, Nuisance, Property, Property Theory, Scholarship, Servitudes, Zoning | Permalink | Comments (0) | TrackBack (0)

Monday, March 5, 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.

Matt Festa

March 5, 2012 in Property, Property Theory, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 1, 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).

Jim K.

February 1, 2012 in Constitutional Law, Eminent Domain, Property, Property Rights, Property Theory, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)