PropertyProf Blog

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Univ. of Arkansas, Fayetteville

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Saturday, December 10, 2005

Singer on the Ownership Society

Joseph Singer (Harvard Law School) has posted The Ownership Society & Regulatory Takings: Castles, Investments, & Just Obligations on SSRN.  Here's the abstract:

Regulatory takings law has hit a crossroads with new decisions in Palazzolo, Tahoe-Sierra, Lingle and Kelo. This article approaches the topic by identifying three different images or models of property that may lie behind analysis of the rights of property owners in the face of the takings clause. Each of the models suggests a central question. The first two models are castles and investments. The castle model focuses on the question of what it means for an owner to act within the borders of her property (or within the scope of her property rights) while the investment model focuses instead on protecting the justified expectations of investors. The third model of ownership developed briefly in this article starts from the assumption that owners have obligations as well as rights and asks whether the obligation imposed by a new regulatory law is just. The image behind this model is that of a citizen in a free and democratic society. Although the Supreme Court has adopted this model as the ultimate test for takings, we have not sufficiently appreciated how it modifies the other models, coexists with them, and provides normative weight in applying the takings clause. This article uses the fact situations in Lucas and Kelo to illustrate and play out the implications of the three models.

Singer presented this very interesting paper at the GELPI Takings Conference, and I've been meaning to post on it for a while.  Now that it is on SSRN, you can check it out directly.

Ben Barros

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December 10, 2005 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Friday, December 9, 2005

Berger on Pierson v. Post

Bethany Berger (Wayne State University Law School) has posted It's Not About the Fox: The Untold History of Pierson v. Post on SSRN.  Here's the abstract:

For generations, Pierson v. Post, the famous fox case, has introduced students to the study of property law. Two hundred years after the case was decided, this Article examines the history of the case to show both how it fits into the American ideology of property, and how the facts behind the dispute challenge that ideology. Pierson is a canonical case because it replicates a central myth of American property law, that we start with a world in which no one has rights to anything and the fundamental problem is how best to convert it to absolute individual ownership. The history behind the dispute, however, suggests that the heart of the conflict was a contest over which community would control the shared resources of the town and how those resources would be used. The historical record is far from complete, so I offer my conclusions tentatively. But this is what I believe it shows. Pierson was among the "proprietors", those who had inherited from the town's original settlers special rights in the undivided lands where the fox was caught. The fox hunt occurred in the midst of a growing dispute over whether the proprietors or the town residents as a whole had rights in these common lands. Although Post does not appear to have had proprietors' rights, his father had become wealthy in the West India trade after the war, and the family flaunted this wealth from commerce. Post's elaborate fox hunt over the commons would have been perceived as another display of conspicuous wealth, inimical to the town's agricultural traditions. The Piersons, in contrast, descended from a long line of educated gentleman farmers and town leaders, and would have followed the town's traditions of puritan thrift. Pierson and Post's conflict over the fox, I believe, was not really about the fox, but was instead part of this growing conflict over who could regulate and use the common resources of the town, and over whether agricultural traditions or commerce and wealth would define its social organization.

Ben Barros

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December 9, 2005 in Recent Scholarship | Permalink | Comments (1) | TrackBack (0)

Weekly Top Ten

Here's this week's list of SSRN's top downloads of recent property scholarship:

1. (291)  How City Hall Causes Sprawl: A Case Study, Michael Lewyn (George Washington University Law School)

2. (242) How Overregulation Creates Sprawl (Even in a City without Zoning), Michael Lewyn (George Washington University Law School)

3. (220)  Suburban Sprawl, Jewish Law, and Jewish Values, Michael Lewyn (George Washington University Law School)

4. (203)  Sprawl, Growth Boundaries and the Rehnquist Court, Michael Lewyn (George Washington University Law School)

5. (124)  Information Asymmetries and the Rights to Exclude, Lior Strahilevitz (University of Chicago Law School)

6. (117)  Home as a Legal Concept, Benjamin Barros (Widener University - School of Law)

7. (105)  Property Rights in Spectrum: Taking the Next Step, Dale Hatfield (University of Colorado at Boulder) and Phil Weiser (University of Colorado at Boulder - School of Law)

8. (79)  Testimony Before Pennsylvania House of Representatives State Government Committee Re: Eminent Domain, Benjamin Barros (Widener University - School of Law)

9. (75) The Fall and Rise of Functional Property, Francesco Parisi (George Mason School of Law)

10. (61) The Measure of a Justice: Justice Scalia and the Faltering of the Property Rights Movement within the U.S. Supreme Court, Richard Lazarus (Georgetown University Law Center)

Ben Barros

December 9, 2005 in Recent Scholarship | Permalink | TrackBack (0)

Thursday, December 8, 2005

Takings and IP

Ted Frank at Point of Law and Will Baude at PrawfsBlawg both have posts up on takings of intellectual property.  I have to say that I don't really see Frank's connection between Kelo and MercExchange -- the former involves government use of eminent domain to take property to transfer it to another private party, while the later involves court adjudication of the relative rights of two parties with respect to a property right created by statute.  Kelo seems more relevant to another fact pattern that has sparked some discussion lately -- the government taking of patents on drugs like Cipro and Tamiflu to allow other manufacturers to manufacture the drug in question.  Even here, though, eminent domain might not be that relevant.  28 U.S.C. s 1498 provides that:

Whenever an invention described in and covered by a patent of the United States is used or manufactured by or for the United States without license of the owner thereof or lawful right to use or manufacture the same, the owner's remedy shall be by action against the United States in the United States Court of Federal Claims for the recovery of his reasonable and entire compensation for such use and manufacture.

This provision seems to authorize the government to allow other manufacturers to produce a patented product so long as compensation is paid to the patent holder.  While this looks a lot like eminent domain, I view it as more of a statutory limit on a statutorily created property right, so I don't think the Constitutional public use issue is relevant in the patent takings context.  I'd also think that this provision would preempt the type of state taking of a patent described by Baude in his post.

UPDATE:  If you have a view on whether state power to take patents would be preempted, please leave a comment.

Ben Barros

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December 8, 2005 in Takings | Permalink | Comments (4) | TrackBack (0)

Wednesday, December 7, 2005

Sandefur on Post-Kelo Backlash

Timothy Sandefur (Pacific Legal Foundation) has posted The “Backlash” So Far: Will Citizens Get Meaningful Eminent Domain Reform? on SSRN.  Here's the abstract:

The Supreme Court’s decision in the eminent domain case of Kelo v. New London was greeted with anger and frustration. The public outcry reaction came to be called the “Kelo backlash,” and news reports and editorials declared throughout the fall of 2005 that this backlash was leading to statutory reforms in many state legislatures. Following Justice Stevens’ suggestion in the Kelo opinion that states could provide greater protection for property owners than the federal courts provided, and recognizing that some state courts had imposed stricter limits on eminent domain through the “public use” requirements in state constitutions, activists and legislators in 38 states began working on changing state laws regarding property seizure.

So far, the backlash has produced few results. Largely because most state legislatures have been in recess since shortly after the Kelo decision was announced, only four states have passed legislation regarding eminent domain. Unfortunately, those four provide little protection for property owners. Proposals in other states, including two brought forward in the California Legislature, even appear to have been consciously designed to effect no meaningful change. On the other hand, a bill recently passed by the Pennsylvania House of Representatives and now pending before the state Senate, as well as federal legislation which appears likely to be enacted into law, do include significant limits on eminent domain. These bills give reason to hope that meaningful reform is on the horizon once other state legislatures return from winter recess. But proponents of these measures must resist the pressure to include loopholes and exceptions that have so severely weakened the four new reform laws
In this article, I survey these four new laws, as well as three proposals that were shot down by the legislature of California, to see how they promise far more than they actually deliver. I will also examine bills recently passed by the Pennsylvania Legislature, and by the United States House of Representatives, which, if enacted, would provide genuine protection for property owners. After a brief background on the law of eminent domain after Kelo, and the public reactions to that decision, I explore each bill in sequence. I then conclude with some observations as to the two biggest obstacles faced by those hoping for serious eminent domain reform: the political influence of powerful redevelopment proponents, and the lack of serious philosophical support for opposition to the outcome of Kelo.

There is some discussion of Sandefur's argument at both the Volokh Conspiracy and BizzyBlog, though the comments at the VC suggest that there was some initial misunderstanding of Sandefur's key points, which were first made in a post on Positive Liberty.

Those interested in the subject might also be interested in these other posts:  Is Justice Stevens a Vulcan?; A Tale of Two Blight Statutes; Resources on the Legislative Response to Kelo; and my posts on the Berman v. Parker and Hawaii Housing Authority v. Midkiff conference notes.

UPDATE:  Todd Zywicki has more on related topics here and here.

Ben Barros

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December 7, 2005 in Recent Scholarship, Takings | Permalink | Comments (3) | TrackBack (0)

Monday, December 5, 2005

Real Estate Transaction Fraud

The LA Times has an interesting story about various types of real estate transaction fraud, including this one involving mortgage brokers:

In another, more wide-ranging scheme that has only partially come to light, homeowners were not victims but eager participants. This hustle, which allegedly was orchestrated by a California broker, is said to have involved hundreds of people. It illustrates just how easy it is to break the mortgage rules on a large scale, and how minimal the punishment can be if you do.

The scheme worked like this, according to the lender that issued the broker's loans: The broker put his clients in loans in which they paid a higher-than-normal interest rate in return for negligible closing costs. These loans generate so much money for lenders that they pay brokers a big finder's fee for them.

To keep the homeowners quiet, the broker split the loot with them. Many of the participating homeowners liked the deal so much they allowed the broker to keep refinancing their loans every few months. Each time, the broker received a new finder's fee and the homeowners earned enough cash to pay their mortgages for a month or two.

The scheme violated California regulations against deception by brokers. But here's what happened when the broker's deceit was finally discovered: nothing. In fact, California regulators say they never heard of the case.

Thanks to Kurt Paulsen for the pointer.

Ben Barros

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December 5, 2005 in Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)

Sunday, December 4, 2005

The Market for Racial Discrimination

Kaimi Wenger at Concurring Opinions has an interesting post up on a Utah developer that advertised "Black race population percentage significantly below state average" as a selling point for one of its residential communities.  Kaimi goes on to discuss the market for racial discrimination:

Economists have argued -- Gary Becker, for example -- that workplace discrimination is inherently inefficient and will eventually be driven out of the market. (There is a great back-and-forth between Posner and Donohue on the topic, from several years back). However, the Eagle Mountain case highlights a fact that no one seems to talk about much (except for Richard Epstein) -- that there is in fact a market for discrimination. That's one of the descriptive ideas in Epstein's book Forbidden Grounds, and it's absolutely right.

I disagree with Epstein's subsequent normative argument -- that since there is a market for discrimination, it should be allowed to exist -- but he's absolutely right to note that there is indeed a market for discrimination. People will sometimes pay for discrimination. They'll do it in their housing -- see Eagle Mountain -- and they'll do it in their employ. This is one reason why the optimistic Becker model -- market forces will end discrimination -- is incomplete.

Ben Barros

[Comments are held for approval, so there may be some delay in posting]

December 4, 2005 in Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)

Weekly Top Ten

Francesco Parisi's The Fall and Rise of Functional Property joins the top ten.  Here's the abstract for this new essay:

In spite of its stability as a fundamental institution of human society, the concept of property and the privileges, obligations, and restrictions that govern ownership have undergone substantial change throughout history. In this essay, I consider the main stages in the evolution of property and discuss some of the important structural variations of the legal and social conceptions of property. The comparative and historical study of the institution of property reveals a close relationship between the structure of an economic system and the structure and content of property rights.

1. (289)  How City Hall Causes Sprawl: A Case Study, Michael Lewyn (George Washington University Law School)

2. (232) How Overregulation Creates Sprawl (Even in a City without Zoning), Michael Lewyn (George Washington University Law School)

3. (218)  Suburban Sprawl, Jewish Law, and Jewish Values, Michael Lewyn (George Washington University Law School)

4. (200)  Sprawl, Growth Boundaries and the Rehnquist Court, Michael Lewyn (George Washington University Law School)

5. (122)  Information Asymmetries and the Rights to Exclude, Lior Strahilevitz (University of Chicago Law School)

6. (115)  Home as a Legal Concept, Benjamin Barros (Widener University - School of Law)

7. (102)  Property Rights in Spectrum: Taking the Next Step, Dale Hatfield (University of Colorado at Boulder) and Phil Weiser (University of Colorado at Boulder - School of Law)

8. (77)  Testimony Before Pennsylvania House of Representatives State Government Committee Re: Eminent Domain, Benjamin Barros (Widener University - School of Law)

9. (67) Leasing, Ability to Repossess, and Debt Capacity, Andrea L. Eisfeldt and Adriano A. Rampini (both from Northwestern University - Department of Finance)

10. (67) The Fall and Rise of Functional Property, Francesco Parisi (George Mason School of Law)

Ben Barros

December 4, 2005 in Recent Scholarship | Permalink | TrackBack (0)