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Saturday, June 17, 2006

Weekly Top Ten

Here's this week's list of SSRN's ten most downloaded recent property articles:

1. (215) The 'Backlash' So Far: Will Citizens Get Meaningful Eminent Domain Reform?, Timothy Sandefur (Pacific Legal Foundation - Economic Liberties Project)

2. (185) The Tragedy of the Commons and the Myth of a Private Property Solution, Amy Sinden (Temple University - James E. Beasley School of Law)

3. (103) Unpacking the Household: Informal Property Rights Around the Hearth, Robert C. Ellickson (Yale Law School)

4. (68) The Uselessness of Public Use, Abraham Bell (Bar Ilan University and Fordham Law School) and Gideon Parchomovsky (University of Pennsylvania - School of Law)

5. (67) Much Ado About Nothing: Kelo v. City of New London, Sweet Home v. Babbitt, and other Tales from the Supreme Court, Marcilynn A. Burke (University of Houston - Law Center)

6. (64) The City as an Ecological Space: Social Capital and Urban Land Use, Sheila Foster (Fordham University School of Law)

7. (64) What Determines Protection of Property Rights? An Analysis of Direct and Indirect Effects, Meghana Ayyagari (George Washington University), Asli Demirguc-Kunt (World Bank) and Vojislav Maksimovic (University of Maryland)

8. (63) From Direct 'Public Use' to Indirect 'Public Benefit': Kelo v. New London's Bridge from Rational to Heightened Scrutiny for Eminent Domain Takings, Trent Christensen (Brigham Young University)

9. (62) Footloose at Fifty: An Introduction to the Tiebout Anniversary Essays, William A. Fischel (Dartmouth College - Department of Economics)

10. (50) Mine & Thine Distinct: What Kelo Says about our Path, Timothy Sandefur (Pacific Legal Foundation - Economic Liberties Project)

Ben Barros

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June 17, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

The Artwork of Feudalism

Cloistersart Continuing the theme of feudalism we've been talking about recently, this morning's New York Times has a lovely article on changes at the Metropolitan Museum's the Cloisters, which was constructed in the 1930s in upper Manhattan from five medieval French cloisters.  I spent some very happy times studying in the park outside the Cloisters when I was a law student, many, many years ago--and so have a warm place in my heart for the museum.  Among the changes are an increased in the stained glass on display.

Photocredit: The picture is of part of Robert Campin's triptych, the Mérode Altarpiece (created between 1425 and 1428), which is on display at the Cloisters,  It is courtesy of our friends at Wikipedia.  (I know, I know, the triptych is from the period after what we usually think of as the end of feudalism, but some of the Cloisters' art is from the period of feudalism.  More on feudalism coming in the next few weeks, including on the island of Sark and "the image of feudalism in the nineteenth century missionary mind.")

Alfred Brophy

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June 17, 2006 | Permalink | Comments (0) | TrackBack (0)

Friday, June 16, 2006

McLaughlin on Conservation Easements

Nancy A. McLaughlin (University of Utah - S.J. Quinney College of Law) has posted Amending Perpetual Conservation Easements: A Case Study of the Myrtle Grove Controversy on SSRN.  Here's the abstract:

Federal and state legislators encourage and facilitate the creation of "perpetual" conservation easements because they expect such easements to provide benefits to the public over the long term. Whether perpetual conservation easements will live up to that expectation will depend, in large part, upon the nature of the legal framework supporting and governing such easements over time. This article explores the legal framework within which perpetual conservation easements may be modified or terminated to respond to changed conditions. To put the issue in context, the article examines a real-world controversy involving the proposed amendment of a perpetual conservation easement encumbering a 160-acre historic plantation on the Maryland Eastern Shore to permit a seven-lot subdivision on the property, and the subsequent defense of the easement by its holder and the Maryland Attorney General on the ground that the easement constitutes a charitable trust. The article concludes that charitable trust rules operate to protect the public's interest and investment in perpetual conservation easements, and the holder of a perpetual conservation easement that simply agrees with the owner of the encumbered land to modify or terminate the easement in contravention of its stated purpose does so at its peril. Perpetual conservation easements are not merely private contracts between the owner of the land and the holder of the easement. Easement terminations - as well as amendments that are inconsistent with the stated purpose of the easement - require court approval in a cy pres proceeding, where appropriate consideration will be accorded to both the intent of the easement grantor and the interests of the public. In situations where the holder of a perpetual conservation easement simply agrees to amend (or terminate) the easement in contravention of its stated purpose, the charitable trust rules permit the state attorney general (or, if the attorney general declines to become involved or is ineffective, a party with a "special interest") to object. The article also explains that the charitable trust framework provides holders of perpetual conservation easements with a certain degree of flexibility to respond efficiently to inevitable changes. For example, an easement grantor can grant the holder the discretion to simply agree to amendments that are consistent with the stated purpose of the easement, thereby avoiding the inefficiencies that would arise from intrusive public oversight of the holder's day-to-day management of the easement.

Ben Barros

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June 16, 2006 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Kochan on Public Use

Donald J. Kochan (Chapman University School of Law) has posted "Public Use" and the Independent Judiciary: Condemnation in an Interest-Group Perspective on SSRN.  Here's the abstract:

This Article reexamines the doctrine of public use under the Takings Clause and its ability to impede takings for private use. It argues that the judicial validation of interest-group capture of the condemnation power through a relaxed public use standard in Takings Clause review can be explained by institutional tendencies inherent in the independent judiciary.

Legislators can sell the eminent domain power to special interests for almost any use, promising durability in the deal given the low probability that the judiciary will invalidate it on the grounds that the condemnation is private in nature. Interest groups will invest in obtaining condemnation actions for their own private purposes--in pursuit of an ultimate title transfer, an increase in the value of adjacent property owned by that special interest, or a harm to a competitor. While institutional structure might make it impossible to increase the costs of successfully defending a condemnation in the courts, structural change can be implemented.

Applying the seminal work of Landes and Posner on the independent judiciary, this Article proceeds to illustrate that the toothless public use doctrine provides proof for their hypothesis that the judiciary exhibits a tendency to enforce interest-group bargains according to their original terms. The best means for preventing interest-group capture of the condemnation power is to increase the costs of obtaining condemnations.

Proposals which increase the costs of obtaining condemnations are the best hope for impeding rent-seeking through eminent domain. Methods should be established to force more interest groups to bargain in the competitive marketplace for the property they wish to either acquire or transform. This forced bargaining may even inspire the creation of innovative solutions to the holdout problems that sometimes are claimed to justify the use of condemnation.

Ben Barros

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June 16, 2006 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Green and Wachter on The American Mortgage

Richard K. Green (Federal Home Loan Mortgage Corporation) and Susan M. Wachter (University of Pennsylvania, Wharton) have posted The American Mortgage in Historical and International Context on SSRN.  Here's the abstract:

Home mortgages have loomed continually larger in the financial situation of American households. In 1949, mortgage debt was equal to 20 percent of total household income; by 1979, it had risen to 46 percent of income; by 2001, 73 percent of income (Bernstein, Boushey and Mishel, 2003). Similarly, mortgage debt was 15 percent of household assets in 1949, but rose to 28 percent of household assets by 1979 and 41 percent of household assets by 2001. This enormous growth of American home mortgages, as shown in Figure 1 (as a percentage of GDP), has been accompanied by a transformation in their form such that American mortgages are now distinctively different from mortgages in the rest of the world. In addition, the growth in mortgage debt outstanding in the United States has closely tracked the mortgage market's increased reliance on securitization (Cho, 2004).

The structure of the modern American mortgage has evolved over time. We begin by describing this historical evolution. The U.S. mortgage before the 1930s would be nearly unrecognizable today: it featured variable interest rates, high down payments and short maturities. Before the Great Depression, homeowners typically renegotiated their loans every year.

We next compare the form of U.S. home mortgages today with those in other countries. The U.S. mortgage provides many more options to borrowers than are commonly provided elsewhere: American homebuyers can choose whether to pay a fixed or floating rate of interest; they can lock in their interest rate in between the time they apply for the mortgage and the time they purchase their house; they can choose the time at which the mortgage rate resets; they can choose the term and the amortization period; they can prepay freely; and they can generally borrow against home equity freely. They can also obtain home mortgages at attractive terms with very low down payments. We discuss the nature of the U.S. government intervention in home mortgage markets that has led to the specific choices available to American homebuyers. We believe that the unique characteristics of the U.S. mortgage provide substantial benefits for American homeowners and the overall stability of the economy.

Ben Barros

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June 16, 2006 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, June 15, 2006

Garnett on Cities and Suburbs

Nicole Stelle Garnett has posted Save the Cities, Stop the Suburbs? on SSRN.  Here's the abstract:

This Essay reviews two recent books: Robert Bruegmann, Sprawl: A Compact History and Joel Kotkin, The City: A Global History. Bruegmann, an architectural historian, makes an important contribution to the thinking about suburban sprawl by placing current development patterns in historical context. Bruegmann builds a strong case that the costs of limits on suburban development – especially the reduction in the supply of affordable housing – might well outweigh their benefits. His failure to consider whether measures other than suburban growth restrictions might enliven cities, however, is a serious shortcoming. The Essay suggests that urban officials must find ways to make cities, in Kotkin’s words, “sacred, safe, and busy,” places again. The Essay urges local governments to examine how city land use policies (as opposed to suburban ones) affect urban life and suggests that city officials must address inevitable tensions between safety and busyness and between busyness and beauty.

Ben Barros

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June 15, 2006 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 14, 2006

Flag Day: Images from the Library of Congress

Locflag911project_1Loc3f05214r_2 It's a little late on Flag Day to be posting this, but I thought I'd put up a few photographs from the Library of Congress.  And if you want to listen to our National Anthem, check out this post from last week with a link to Marvin Gaye's 1983 rendition.  There are a lot more where these came from.  If you like these, check out the Library of Congress' American memory website.

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June 14, 2006 | Permalink | Comments (0) | TrackBack (0)

Imperialism, Art, and Restitution by John Henry Merryman

MerrymanartI read a thought-provoking set of essays last night: Imperialism, Art, and Restitution, edited by Professor John Henry Merryman of Stanford Law School, which has just appeared from Cambridge University Press.

The collection, which are papers first delivered in 2004 at a conference the Whitney R. Harris Institute for Global Legal Studies at Washington University in St. Louis, address the question what should be done about repatriation of art.  The essays focus on the Elgin Marbles (we’ve talked a little about this already at propertyprof), as well as the Nefertiti bust repatriated from Germany to Egypt, and the Native American Graves Repatriation Act.  Perhaps my favorite set were the pro and con on repatriation of Nefertiti–-always interesting to see a clash of ideas (Kurt Siehr vs. Stephen Urice).

I want to focus on two of Merryman’s essays.  His introduction provides a good roadmap of issues in this area, where moral claims seem to be more powerful and important than legal ones.  He provides a map of how cultural property is lost–-through aggression, opportunism, partage (dividing treasures between the people who unearth them and the nation where they’re found), and accretion; as well as principles to consider–-nationalism, legality, morality (lots to talk about here), and cultural property internationalism (I’d think this overlaps substantially with morality).

What interests me most are the arguments employed around the morality of repatriation.  As I remarked in regard to John Boardman’s Wall Street Journal op-ed,  What Were the Elgin Marbles, a few months ago, the arguments against return seem largely based on ideas of need and utility.  There’s a lot of talk in this volume (especially from James Cuno) about the “universal museum”–-the idea that museums are entrusted with preserving knowledge of many cultures and disseminating that knowledge to many people.  (Reminds me of one of my favorite books,Anke te Heesen'sThe World in a Box.  Check it out!--another brilliant book from the University of Chicago Press.  And I do mean brilliant.  We could use an essay along these lines for the Encyclopedia Americanae.  But now I'm getting rather far afield.)

Merryman argues in his chapter on the Elgin Marbles that their presence in the British Museum serves a more important educative function than if they were returned to Greece.  He also argues that they are part of the world’s cultural patrimony and thus should be in a place where people can explore them in the context of art from other places.  Here are a couple of paragraphs that give you the flavor of Professor Merryman’s argument:

Museums are educational institutions whose exhibitions of art from other times and places help us understand, appreciate and respect our own and other peoples’ cultures.  The exhibited collections of the British Museum, the Metropolitan Museum, and Louvre and other great museums temper, if they cannot totally eliminate, cultural parochialism.   In the case of the Marbles, their installation in the British Museum has had and continues to have, as Elign hoped, a strong education impact, quickly commanding respect not only for Greek art but for the civilization that produced it.  Today Greek achievements in art, dama, literature, philosopher, and science permeate Western culture.  If all of Classical Greek art had remained in Greece, our world today would be a significantly different one.

    . . .

The late art critic John Canaday argued that American art should be “spread around,” not kept at home.  The idea of “missionary art” that makes a culture vivid and comprehensible abroad is, as we have already seen, an appealing one that promotes international understanding and mutual cultural respect.  If all the works of the great artists of Classical Athens were returned and kept there, the rest of the world would be culturally impoverished.

So Merryman, with Boardman, focuses on the contributions of the relocation of the Elgin Marbles to the growth of interest in Greece and to the growth of western civilization more generally.  Not sure I’m entirely convinced of their centrality–I’m not a fan of single-causation theories, but this is an issue on which I am sure there’s a lot to talk about. And I obviously have much to learn.

I am partial to arguments about spreading the wealth around.  So I’m intrigued that the argument around the morality of repatriation so readily moves into talking about spreading the art wealth and focusing on the benefits to humanity.  I’m also interested in how much repatriation arguments correlate with recent arguments about reparations, which focus on current need and considerations of utility (like where can we spend money that will be most beneficial in repairing past harms). 

What continues to surprise me is how flexible these arguments are and how the argument becomes: more people benefit from having the art in Great Britain than in Greece (or in Egypt).  Very interesting how these arguments can be used to justify keeping art in the more affluent place.  Much to think about in Imperialism, Art and Restitution, including voices of people who want cultural property returned (like Talat Halman).

I highly recommend this volume.  It will make you think, which is the compliment I give to books I really enjoy.

Alfred L. Brophy
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June 14, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Squatters, Celebs and Eminent Domain

Check it out.

Update:  Ilya Somin has thoughts here.

Ben Barros

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June 14, 2006 in Takings | Permalink | Comments (1) | TrackBack (0)

Tuesday, June 13, 2006

I'm addicted to . . . English Law in the Age of the Black Death

Palmer Inspired by Ben's post on a Helen Castor's book, Blood and Roses, about post-plague England, I thought I'd mention one of my favorite books: Robert C. Palmer's English Law in the Age of the Black Death, 1348-1381: A Transformation of Governance and Law, published by UNC in 1993.  (Note that Professor Robert C. Palmer of the University of Houston Law School is not this Robert Palmer.)  It's an extremely important exploration of the transformation wrought by the dramatic decline in population in the fourtheenth century.  Property profs will be particularly interested in the ways that Palmer links the decline in population (and thus increasing need for labor and increased power of workers) to the decline of feudalism.  After the black death, workers had more power to demand increased privileges--like the right to go elsewhere to live and work.  It brings the techniques that I enjoy about some of the best of writing on American legal history (focus on social history and its relationship to doctrine) to English legal history.  Thus, I see Palmer as writing in a tradition of Morton Horwitz' Transformation of American Law, 1780-1860, though I'm not sure whether he thinks of himself as writing in that tradition. 

I think you'll enjoy the book, particularly on why feudalism ended.  It would be interesting to put Palmer together with those who see increasing respect for property rights as the way out of feudalism.  Though I must say that this is sufficiently outside of my area of expertise that I won't hazard any more speculation right now.

Many years ago I benefitted from Palmer's excellent review essay of S.F.C. Milsom's Legal Foundations of Feudalism, which made that book accessible to me.  And I will, therefore, be eternally grateful to Dr. Palmer, who is a one man gang when it comes to publishing.  You might also enjoy, for instance, Selling the Church: The English Parish in Law, Commerce, and Religion, 1350-1550.  (Plus, this continues my posts on the University of Houston.  Remember, I'm a fan of the Houston Law Review.)

Endnotes:  How could the musician Robert Palmer have died in 2003?  He was young when I was in college.

Alfred L. Brophy

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June 13, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Update on NY Funeral Home Scandal

The Associated Press has a fairly detailed story on the New York funeral home scandal involving the unconsented harvesting of body parts, some of which were diseased.  Some excerpts:

The body parts, though no longer of any value to their owners, became big business for Mastromarino. His lawyer said he was among the first in the industry to figure out that one way to meet the high demand for donated human tissue — traditionally procured in the controlled environment of hospitals — was to turn to funeral homes.

Deals were cut with funeral directors in New York City, Rochester, N.Y., Philadelphia and New Jersey: BTS would pay a $1,000 “facility fee” to harvest body parts on their premises. . . .

Processors who bought from Mastromarino — one body could bring the company $7,000 — were more interested in his ability to meet demand than in the man himself.

“We had very little contact with him,” said Marshall Cothran, chief executive of Central Texas Regional Blood and Tissue Center.

Ben Barros

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June 13, 2006 in Property Theory | Permalink | Comments (0) | TrackBack (1)

Monday, June 12, 2006

University of Illinois Conference on The Future of the Commons and the Anticommons

The University of Illinois recently hosted a conference organized by Tom Ulen and Lee Fennell on the Future of the Commons and the Anticommons.  From the conference website:

In June 2006, twenty scholars met in Chicago to discuss the future of the commons and the anticommons. The well-known tragedy of the commons story (which has the structure of a Prisoner's Dilemma) and its more recently developed counterpart, the tragedy of the anticommons, have provided influential focal points for thinking about property regimes and resource allocation. The discussants considered the continuing vitality of these conceptual templates in real property, natural resource, and intellectual property contexts, addressed possible refinements and theoretical extensions, and discussed potential avenues for further research.

The website has audio files of the sessions and a very useful reading list that served as a springboard for the discussion.  It is a fascinating collection of material.  Check it out!

Ben Barros

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June 12, 2006 in Conferences, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Ellickson on Unpacking the Household

Robert C. Ellickson (Yale Law School) has posted Unpacking the Household: Informal Property Rights Around the Hearth on SSRN.  Here's the abstract:

As Aristotle recognized in THE POLITICS, the household is an indispensable building block of social, economic, and political life. A liberal society grants its citizens far wider berth to arrange their households than to choose their familial and marital relationships. Legal commentators, however, have devoted far more attention to the family and to marriage than to the household as such.

To unpack the household, this Article applies transaction cost economics and sociological theory to interactions among household participants. It explores questions such as the structure of ownership of dwelling units, the scope of household production, and the governance of activities around the hearth. Drawing on a wide variety of historical and statistical sources, the Article contrasts conventional family-based households with arrangements in, among others, medieval English castles, Benedictine monasteries, and Israeli kibbutzim.

Most households involve several participants and as many as three distinct relationships - that among occupants, that among owners, and that between these two groups (the landlord-tenant relationship). Individuals, when structuring these home relationships, typically pursue a strategy of consorting with intimates. This facilitates informal coordination and greatly reduces the transaction costs of domestic interactions. Utopian critics, however, have sought to enlarge the scale of households, and some legal advocates have urged household members to write formal contracts and take disputes into court. These commentators fail to appreciate the great advantages, in the home setting, of informally associating with a few trustworthy intimates.

It must be Aristotle week in property theory.

Ben Barros

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June 12, 2006 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, June 11, 2006

Weekly Top Ten

Here's this week's list of SSRN's ten most downloaded recent property articles:

1. (209) The 'Backlash' So Far: Will Citizens Get Meaningful Eminent Domain Reform?, Timothy Sandefur (Pacific Legal Foundation - Economic Liberties Project)

2. (178) The Tragedy of the Commons and the Myth of a Private Property Solution, Amy Sinden (Temple University - James E. Beasley School of Law)

3. (101) Private Order and Public Justice: Kant and Rawls, Arthur Ripstein (Faculty of Law, University of Toronto)

4. (67) Much Ado About Nothing: Kelo v. City of New London, Sweet Home v. Babbitt, and other Tales from the Supreme Court, Marcilynn A. Burke (University of Houston - Law Center)

5. (64) The City as an Ecological Space: Social Capital and Urban Land Use, Sheila Foster (Fordham University School of Law)

6. (63) From Direct 'Public Use' to Indirect 'Public Benefit': Kelo v. New London's Bridge from Rational to Heightened Scrutiny for Eminent Domain Takings, Trent Christensen (Brigham Young University)

7. (61) Footloose at Fifty: An Introduction to the Tiebout Anniversary Essays, William A. Fischel (Dartmouth College - Department of Economics)

8. (57) Unpacking the Household: Informal Property Rights Around the Hearth, Robert C. Ellickson (Yale Law School)

9. (54) The Uselessness of Public Use, Abraham Bell (Bar Ilan University and Fordham Law School) and Gideon Parchomovsky (University of Pennsylvania - School of Law)

10. (53) What Determines Protection of Property Rights? An Analysis of Direct and Indirect Effects, Meghana Ayyagari (George Washington University), Asli Demirguc-Kunt (World Bank) and Vojislav Maksimovic (University of Maryland)

Ben Barros

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June 11, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)