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Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Friday, October 14, 2005

Weekly Top Ten and Recent Property Scholarship

Here is the list of the top 10 papers by download in the last 60 days for SSRN's Journal of Property, Land Use & Real Estate Law (with total number of downloads in parens after the rank).  A new issue of the Journal just came out, so there is some movement from last week.  Abstracts for the new articles on the list, and for some other new property articles, follow the list.  Jed Purdy continues to have the #1 spot and a new article at #9.  That fink distinguished young scholar Purdy also has the lead for total downloads on the list, with 156 for his two articles compared to 150 for my two articles.  Not that anyone is counting.

1.  (114)  A Freedom-Promoting Approach to Property: A Renewed Tradition for New Debates, Jedediah S. Purdy (Duke University - School of Law)
2.  (90)  At Last, Some Clarity: The Potential Long-Term Impact of Lingle v. Chevron and the Separation of Takings and Substantive Due Process, Benjamin Barros (Widener University - School of Law)
3.  (63)  Efficient Trespass: The Case for 'Bad Faith' Adverse Possession, Lee Anne Fennell (University of Illinois College of Law)
4.  (60)  Home as a Legal Concept, Benjamin Barros (Widener University - School of Law)
5.  (58)  Private Property, Development and Freedom: On Taking Our Own Advice, Steven J. Eagle (George Mason University - School of Law)
6.  (56)  Grave Matters: The Ancient Rights of the Graveyard, Alfred L. Brophy (University of Alabama - School of Law)
7.  (52)  Unsubsidizing Suburbia, Nicole Stelle Garnett (Notre Dame Law School)
8.  (48)  Default, Credit Scoring, and Loan-to-Value: A Theoretical Analysis Under Competitive and Non-Competitive Mortgage Markets, Danny Ben-Shahar (Interdisciplinary Center Herzliyah - Arison School of Business)
9.  (42)  The American Transformation of Waste Doctrine: A Pluralist Interpretation, Jedediah S. Purdy (Duke University - School of Law)
10.  (37)  Creating Markets for Ecosystem Services: Notes from the Field, James Salzman (Duke University - School of Law)

Abstracts for new papers (to access the article, click on the title)

Home as a Legal Concept, Benjamin Barros

This article, which is the first comprehensive discussion of the American legal concept of home, makes two major contributions. First, the article systematically examines how homes are treated more favorably than other types of property in a wide range of legal contexts, including criminal law and procedure, torts, privacy, landlord-tenant, debtor-creditor, family law, and income taxation. Second, the article considers the normative issue of whether this favorable treatment is justified. The article draws from material on the psychological concept of home and the cultural history of home throughout this analysis, providing insight into the interests at stake in various legal issues involving the home.

The article concludes that homes are different from other types of property and give rise to legal interests deserving of special legal protection, but that these interests can be outweighed by competing interests in particular legal contexts. The result is that in many contexts special legal treatment of homes is justified. In other contexts, for example residential rent control, the strength of competing interests means that the law overprotects the home. In still other contexts, for example eminent domain law as embodied by the Supreme Court's recent decision in Kelo v. New London, the law tends to underprotect the home.

The American Transformation of Waste Doctrine: A Pluralist Interpretation, Jedediah S. Purdy

Professor Purdy takes an early American change in the common-law doctrine of waste - governing relations between tenants and reversioners (sometimes landlords, sometimes heirs of deceased owners) - as an occasion to compare two modes of explaining doctrinal change: one exclusively economic, the other embracing political and ideological as well as economic explanations of individual and institutional behavior. Professor Purdy concludes that the fullest and most convincing interpretation of waste doctrine's transformation from English to American common law emerges from a pluralist account. He insists, however, that economic explanation not only has a central place in doctrinal interpretation, but is enriched even on its own terms by the addition of plural elements.

Early American courts moved the law governing tenants' use of land from a bright-line rule to a fuzzy standard. Courts styled the change an effort to rationalize the law in light of the very different proportions of land, labor, and capital present in North America as against those prevailing in England. Curiously, however, basic economic analysis of the American doctrine suggests it was not a clear improvement as an efficiency-enhancing device. The doctrine emerged, moreover, in the context of quasi-feudal landlord-tenant relations in the manorial estates of the Hudson Valley, which were in many respects the bete noir of the broadly republican ethos then prevalent in American law and politics. By examining the context of the seminal case and the thought of one its deciding judges - New York's Chancellor James Kent - on the relationship of property law to republican society, Professor Purdy shows how the change would have seemed attractive from the point of view of creating a formally egalitarian free-market society. This interpretation is not so much at odds with a conventional economic explanation as it is illuminating of what market economics meant in early eighteenth-century America. The free market described a set of social relationships, regarded as the antithesis of feudal hierarchy, which legislators and jurists did not assume as given, but set about deliberately to create, always in the shadow of the feudal counterpoint.

Creating Markets for Ecosystem Services: Notes from the Field, James Salzman

Created by the interactions of living organisms with their environment, ecosystem services support our society in many critical ways, from providing clean air and water, decomposing waste, and pollinating flowers, to regulating climate, and pacifying floodwaters. Interest in ecosystem service markets has recently exploded, with a cover article in The Economist just a few months ago. Scholarship in the field, though, is still quite young.

Despite their immense practical value, with rare exception, ecosystem services are neither prized by markets nor explicitly protected by the law. In recent years, an increasing number of initiatives around the world have sought to create markets for services, some dependent on government intervention and some created by entirely private ventures. These experiences have demonstrated that investing in natural capital rather than built capital can make both economic and policy sense. Informed by the author's recent experiences establishing a market for water quality in Australia, this Article fully explores the implications of an ecosystem services approach to environmental protection. The piece reviews the range of current payment schemes and identifies the key requirements for instrument design. Building off these insights, the piece then examines the fundamental policy challenge of payments for environmental improvements. Despite their poor reputation among policy analysts as wasteful or inefficient subsidies, payment schemes are found throughout environmental law and policy, both in the U.S. and abroad. This Article takes such payments seriously, demonstrating that they should be favored over the more traditional regulatory and tax-based approaches in far more settings than commonly assumed.

No-Fault Divorce and the Division of Marital Assets, Philip Curry

This paper examines the incentives that divorce laws concerning property division can have for divorce and investment in marital assets. In particular, it notes the spread of equal division of matrimonial property. Canada and 10 US states currently use a community rule, which divides matrimonial property equally with very few exceptions, while the rest of the US states employ common-law rules, which start with the presumption of equal division but can make changes based on such things as contributions to the asset. This paper examines whether the community rule could be efficiency enhancing relative to the common-law rule. The paper considers an environment in which spouses have multiple inputs, such as time and money, to a marital asset, but the choices a spouse makes with regards to one input, say time, is not observable to the courts. In such an environment, it is demonstrated that the community rule leads to efficient investment in the marital asset while the common-law rule does not. Further, sufficient conditions are found for which the community rule leads to a lower divorce rate than the common-law rule.

Accountability and Private Governments, Laura Langbein and Kim Spotswood-Bright

It is commonly believed that residential community associations (RCAs)-a.k.a. homeowners associations and condominium associations - enhance the value of residents' properties. If RCAs provide a level of services with benefits equal to or exceeded by residents' willingness to pay for them, then property values should remain constant or increase. But the organizations may not provide an efficient level of services because of inadequate oversight by community residents. Instead, RCAs may adopt policies that reflect the preferences of community activists who have higher demands for services than the mean or median resident. In the most likely type of inefficient RCA, an increment in expenses for services reduces property values because the marginal purchaser gets less benefit out of the services than their cost. In that case, the excessive fee will be negatively capitalized into property values.

Substituting Complements, Giuseppe Dari-Mattiacci and Francesco Parisi

The presence of multiple sellers in the provision of (non-substitutable) complementary goods leads to outcomes that are worse than those generated by a monopoly (with a vertically integrated production of complements), a problem known in the economic literature as complementary oligopoly and recently popularized in the legal literature as tragedy of the anticommons. We ask the following question: how many substitutes for each complement are necessary to render the presence of multiple sellers preferable to monopoly? Highlighting the asymmetries between Cournot (quantity) and Bertrand (price) competition and their dual models, we show that two substitutes per component are sufficient. Considering more complex cases of multi-complementarity, we ask the related question of how many complements need to be substitutable and offer comments on equilibrium prices and quantities under different scenarios.

'Not Much Less Necessary Than the Atmosphere They Breathed:' Salmon, Indian Treaties, and the Supreme Court - A Centennial Remembrance of United States v. Winans and Its Enduring
Significance
, Michael C. Blumm and James Brunberg

A century ago, the Supreme Court decided United States v. Winans, which upheld the Indian treaty right to cross private property to access traditional fishing grounds in the Columbia River. The Winans decision, a landmark in Indian treaty interpretation, protected critically important cultural and economic practices from white encroachment, a surprising result in an era committed to Indian assimilation and allotment. This article examines the case, its context, its participants, and its contributions to Indian natural resources law.

The dispute took place at Celilo Falls, the most important Indian fishing site in the Columbia Basin, although the government agents and attorneys viewed it as a test case, emblematic of the clash of cultures taking place throughout the Northwest at the end of the 19th century. In fact, the article considers in some depth two predecessor cases involving the same tract of land at issue in Winans and suggests that the Indian agents who pursued the case did so because they saw treaty fishing as an economic lifeline for Indians who had failed at agrarianism on-reservation.

The district court issued a confusing array of injunctions and opinions that ultimately culminated in dismissal of the case some eight years after it was filed. A direct appeal to the Supreme Court produced an opinion memorable almost as much for its poetic language as for its result. Justice Joseph McKenna, not otherwise known for his lyricism, wrote that fishing at Celilo Falls was not much less necessary to the Indians than the atmosphere they breathed and proceeded to rule that their treaty rights included the imposition of a servitude, a right in land over lands necessary to access their traditional fishing sites. In response to the lower court's conclusion that the treaty language recognizing a tribal right of taking fish in common with settlers meant only equality of treatment, McKenna averred that such a result was certainly an impotent outcome to negotiations and a convention, which seemed to promise more and give the word of the Nation for more.

The decision's lodestar status is not merely due to its language, however. It established the reserved rights doctrine, which holds that Indian treaties are not a grant of rights to the Indians but a grant of rights from them - a reservation of rights not granted. Over the last century, the reserved rights doctrine has been immensely important in recognizing tribal proprietary rights to natural resources and in recognizing tribal sovereignty. Winans also reaffirmed the rule that Indian treaties should be interpreted as the Indians, the weaker party, would have understood, and rejected claims that state ownership of the riverbed foreclosed federally created treaty rights. Both of these principles endure. Finally, the case recognized treaty fishing rights as property rights that would run against not only the federal government but also the state and private parties, a precedent that some recent lower court decisions seem to have overlooked.

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