PropertyProf Blog

Editor: Stephen Clowney
Univ. of Kentucky College of Law

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Tuesday, June 19, 2007

Property at Law and Society in Berlin

I've gone through the preliminary program for the upcoming Law and Society Conference in Berlin and picked out as many property-related presentations as I could find.  The list is below the fold.  There's a lot going on, and I'm sure I've missed some things.  To make the list manageable, I've omitted panels that are focused only on intellectual property.  Please let me know by leaving a comment or sending me an e-mail if I've missed anything or made any errors in the listing.

Unfortunately, it looks as though several of the property panels conflict with each other, especially on Thursday morning and Saturday afternoon.  I'll be presenting a paper called Group Size and Heterogeneity in the Design of Legal Structures (abstract below) in the Property Rights: Structures of Property panel on Friday morning.

Ben Barros

Wed, Jul 25 - 10:15am - 12:00pm  Building/Room: HU / 35

Panel: The Legal Construction of Property Rights and Markets 1235 

Papers:

Péter Cserne (University of Hamburg), Contract Regulation between Paternalism and Freedom of Contract: A (Behavioral) Law and Economics Perspective

There is an enormous literature, doctrinal, historical, economic, sociological and philosophical on the limits of freedom of contract. What can psychological findings (empirical data about cognitive and emotional biases in information gathering, information processing, risk-assessment, choice consistency etc.) as referred to in "Behavioural Law and Economics" add to this? How can the findings in cognitive psychology about judgment and decision making change the justifiability and the extent of limiting freedom of contract? If it can be proven that people “fall prey to cognitive and emotional biases” systematically and repeatedly then these findings might support the case for paternalism in these given instances. Law’s response to bounded rationality can be manifold; also, the empirical findings alone do not justify legal intervention. Biases are context-dependent, embedded in a complex decision-making mechanism, privately hired experts can help individuals to choose more rationally, and learning effects can be at work. In a dynamic perspective, regulation may lead to the inhibition of learning rational choice in the future. After making sure that an instance of self-harming irrational behavior is at hand we have to ask whether and how (at what price) law can provide adequate solutions for the problem. Recently “libertarian” and “asymmetric” paternalism have been suggested as regulatory ideas which take into account both behavioural insights and economic and libertarian counterarguments. Although the ongoing discussion about contract regulation have significantly different accents in Europe and in the US, both end up in an empirically oriented pragmatic balancing of costs and benefits.

Jonathan Levine (University of Michigan), The Legal Construction of the Market Default in the U.S. Land-Use Debate

In Anglo-American law, the municipality has frequently been viewed as more like a private corporation than as the local cousin to the regulatory authority of the national government. And U.S. courts have often ruled as if the municipal power to regulate land use emanated directly from the property rights of landowners, rather than being the product of a delegation of the state’s police power. These observations are used here to explain a paradox in land-use policy. Urban sprawl is frequently analyzed in U.S. literature as a potential market failure. That is, where the harms of a low-density auto-oriented development pattern—or the benefits of compact, walkable, and transit-friendly alternatives—are scientifically proven, the rationale for governmental intervention into free markets has been established. Implicit to this formulation is the construction of a default alternative: where harms or benefits are absent or ambiguous, let the market determine metropolitan development densities and the rate of conversion of rural land to urban uses. The status quo in land development is thus implicitly equated with “the free market.” This is a surprising outcome, since land development is highly regulated at the municipal level through interventions including zoning, subdivision requirements, design regulations, and roadway and parking standards. This paper considers the manner in which the regulated reality of municipally controlled metropolitan development has come to be cast as an ostensible “free market.” This construction has impeded land-use policy reform by helping to establish scientifically conclusive proof-of-benefit as a prerequisite to changes in the status quo.

Noga Morag-Levine (Michigan State University), The Problem of Pollution Hotspots: Pollution Markets, Coase, and Common Law

The potential of pollution markets to exacerbate localized air pollution “hotspots” has led some to call the equity of such markets into serious question. This is not to suggest that conventional direct regulation is likely to eliminate variation in levels of pollution concentrations across differently situated locales. Nevertheless, it is over the ideal of feasible mitigation across all sources of pollution that the direct regulation and emissions trading approaches fundamentally diverge. The very quality that direct regulation conceives of as its virtue—across the board implementation of state-of-the-art controls—are construed by market approaches as an overly rigid rule in need of relaxation. The origins of this divergence, this paper will argue, are to be found in the respective legal traditions in which each of the two regulatory paradigms are rooted. Whereas technology standards are at their core a civil law instrument; emissions trading resonate with common law sensibilities. Support for this thesis comes from the significance of the common law’s locality doctrine in Coase’s “The Problem of Social Cost.” Through analysis of the common law’s role in Coase’s work the proposed article highlights important continuities between applicable regulatory suppositions under nuisance law and emissions trading. For students of comparative regulatory politics, the family resemblance between emissions trading and common law principles may help explain differences in the reception accorded to pollution markets in the U.S. and on the continent. The affinity between these markets and the common law can likewise help clarify the normative choices at stake.

Jonathan R. Nash (Tulane University), The Unknowing Race to Capture: Strategic Responses to Grandfathering

This project considers an increasingly common but largely overlooked and unexamined method of property allocation. The special feature of the unknowing race to capture is that the societal actors who engage in the behavior do not know at the time that they engage in the behavior exactly what behavior will entitle them to property. Unknowing races have emerged to allocate “grandfathering rights” under environmental regulation. For example, fishery quotas are sometimes allocated based upon legal fish landings in years before the regulation was in place. Traditional races to capture encourage excessive behavioral modifications by societal actors. The unknowing race ameliorates this by introducing legal uncertainty, which makes it harder for societal actors to modify their behavior in order to win the race. Over time, societal actors who have seen a number of unknowing races introduced may begin to anticipate them. They may alter behavior based upon speculation, and also engage in a race to capture the regulatory mechanism to ensure that the allocation device will reward them and not others. For continued effectiveness, the criteria for winning the unknowing race must be varied, unpredictably, over time. The question remains as to why the legislature, by reducing the chances of regulatory capture, would opt to forgo economic rents. Perhaps rather than challenge strong, preexisting norms, the legislature will devolve authority on regulatory bodies that are not beholden to interest groups. A more pessimistic answer is that, even under an unknowing race, the legislature retains the option to reward rent-seeking sub rosa.

Wed, Jul 25 - 10:15am - 12:00pm   Building/Room: HU / 20

Panel:  International and Comparative Law Approaches to Minority and Indigenous Peoples' Rights 1220

Papers include:

Hari Osofsky (University of Oregon), The Geography of Justice Wormholes: Dilemmas from Property and Criminal Law 

This Article provides a law and geography analysis of the ways in which our legal structures constrain the possibilities for justice for categories of people. It explores “wormholes” in the U.S. legal system that transport people pursuing claims under multiple theories of law into another timespace in which the basic protections of our legal system are absent. In particular, the article compares the barriers faced by post-9-11 “enemy combatants” and the indigenous peoples who were this country’s original inhabitants. Through an analysis of two representative case examples—José Padilla's "enemy combatant" designation and the taking of the Mary and Carrie Dann's land—the article considers (1) the way in which place, space, and time structure procedural and substantive injustice, (2) how different conceptions of "United States spaces" impact the possibilities for remapping these wormholes, and (3) the implications of this analysis for preventing future wormholes and comporting with justice's demands.

Thu, Jul 26 - 10:15am - 12:00pm  Building/Room: HU / 31

Panel:  Property Rights and Land Tenure in Law and Development in Comparative Perspective: From Ghana to South Africa to Turkey 2231

Panel Abstract:

All the papers in this session explore the core issue of land tenure within broader trajectories of law and development, situating case studies in Ghana, South Africa, urban governance in Istanbul and the broader normative implications for any case involving past dispossession.

Papers:

Bernadette Atuahene (Illinois Institute of Technology), From Reparations to Restoration: Legitimizing Property Rights When Past Theft Colors the Distribution of Property

How does a democratic state legitimize strong property rights when property arrangements are widely perceived to be defined by past theft? This can be done through restorative justice measures that redistribute wealth based on past dispossession. This answer, however, leads to two more complex questions: Who gets priority in the restorative process given limited resources and how should the process unfold? The concise answers to these two ancillary questions are: First, instances of what I call property-induced invisibility should be prioritized as a baseline for achieving legitimacy. When property is confiscated in this manner people are removed from the social contract and made invisible. Widespread invisibility is of particular concern because it can lead to chaos and instability and places the legitimacy of existing property arrangements in serious doubt. Consequently, states must, at minimum, rectify property-induced invisibility in the restorative process. Second, societies must change the focus from restoration of the physical property confiscated to the larger project of restoring an individual’s relationship to society. This will happen if those subject to property-induced invisibility are included in the social contract through a bottom-up process that provides the dispossessed with asset-based choices. The process of allowing people to choose how they are made whole will do a substantial amount of work towards correcting property-induced invisibility and thereby increasing the legitimacy of existing property arrangements.

Elizabeth Fortin (Sussex University), Experiential Knowledge of Tenure and Legal Knowledge of Tenure: Engagements with Land Tenure Reform in South Africa

Legislation reforming tenure is often based upon particular interpretations of the tenure situation to be reformed by people on the outside, rather than by reference to the shared realities of those who will be the subjects of the reforms. This paper considers such shared understandings of tenure of people living in the former ‘homeland’ areas in South Africa but then goes on to consider how particular forms of knowledge of such tenure has shaped approaches to its reform. The discussion draws upon a year’s multi-sited fieldwork involving archival research as well as ethnographic studies in policy-making, NGO and academic circles in South Africa as well as in communities themselves. The paper considers how the knowledge of tenure, ownership and rights of a key grouping participating in policy debates in South Africa has been shaped by their particular shared history in the struggle against apartheid. It looks at the assumptions that such knowledge has led to and on which particular models of reform embodied in proposed tenure legislation have been constructed. Understanding the extent to which different versions of reality have been embodied in law and policy is rarely explored, but this paper considers how particular models of reform, shaped by layers of discourses, construct spaces for engagement and so limit the questions that can be asked and the actors that can be involved.

Elizabeth Gianola (University of California, Berkeley), African Land Tenure Security in Comparative Perspective: The Cases of Ghana and South Africa

There is a fairly broad agreement that well crafted land rights are necessary to promote economic development in African countries. As customary land tenure remains the predominant model of landholding in rural Africa and land is the cornerstone of rural livelihood security, improving land tenure security is often equated with integration of customary land law into the modern statutory law of the state. However, integration must be achieved in corollary with reform of existing statutory law so that the legal structure is both adaptive to the market and supportive (or at least not destructive) of existing socio-cultural institutions. This paper examines statutory law (i.e., constitutional law and its application in case law) in Ghana and South Africa and reflects upon its ability to promote land tenure security and socio-economic development.

Tuna Kuyucu (University of Washington), Neoliberalism and Urban Governance: "Urban Transformation Projects" in Istanbul

During the last decade, Istanbul Municipality and the Turkish state has significantly changed their prevailing mode of approaching urban planning, urban governance, and, relatedly, regulating real-estate markets in the city. Similar to most developing countries experiencing large scale internal migration into urban areas, the Turkish state have traditionally dealt with the housing problem by not activating the law against the informally built settlements, thereby contributing to the expansion of ‘illegal’ areas within cities. Since the mid-1990’s, however, this mode of dealing with housing the urban poor has come to an end because of the unbridled liberalization of the economy and the emergence of lucrative land/housing markets in the shantytown areas. Rather than allowing the urban poor to appropriate land, the state now implements strict property rights and criminalizes illegal settlements. Nothing demonstrates this process better than the recent Urban Transformation Projects, passed as law from the parliament in 2005, that give almost unlimited powers to the municipality to re-construct the urban space in order to turn Istanbul into a ‘global city’. As part of these renewal projects, the municipality has designated 85,000 illegal units to be demolished and has completed about 2000 of these demolitions. When completed, these Projects will relocate about a million people in Istanbul. In this paper, I focus on these Projects to trace how neoliberalization of the economy creates new modes of urban governance, and consequently, new patterns of socio-spatial segregation. I argue that this ‘entrepreneurial’ style of urban governance generates heightened segregation, hierarchies and inequalities.

Thu, Jul 26 - 10:15am - 12:00pm  Building/Room: HU / 41

Panel: Property and Society: Theorizing Obligations in Ownership 2241 

Panel Abstract: 

In the legal and developmental literature, discussions of private property, whether real, movable, or intellectual, usually proceed from a set of neo-classical economic presumptions which emphasize property as a bundle of rights. Property rights are seen as a device for generating wealth for the private owner, through the exercise of these rights. And generating private wealth for the owner of property rights is by itself held to be synonymous with producing a public good.

However, the recent experience of many property regimes, in both developed and developing countries, suggests that this neo-classical, economic view is critically incomplete. Notions of property and ownership are often times being used as vehicles for imposing particular sets of social obligations. The social obligations that attach to property have both public (i.e., constitutional) and private law dimensions.  In some legal systems, these obligations are explicit. In others, they are less so. But the existence and prevalence of these obligations call into question the neo-classical economic model’s capacity to account fully for the relationship between property, social relations, and public good.

This panel brings together scholars working in a variety of methodologies, from normative theory to legal anthropology, and from the United States, Europe and China, who are presently engaged in theorizing the social obligations that attach to property ownership. Our goal is to study the character of obligations empirically and comparatively through case studies from different societies and jurisdictions, and also to think normatively about the implications of a theory of obligation for the development of private property regimes as a public good.

Papers:

Gregory S. Alexander (Cornell University), The Evolving Social Obligation of Ownership

In a private property regime do owners owe inherent duties to other members of society? Stated differently, are private property rights subject to an inherent social-obligation norm? Most lay people in the West (and perhaps many lawyers as well) are inclined to assume that the answer of most assuredly no. That is, they believe that the holders of private property rights are free to exercise their rights in any way they wish, free from any responsibility to others, except insofar as they have consensually agreed to be bound. Thoughtful observers, however, will quickly point out that private property rights are not and never have been absolute and that there is always some social-obligation limitation on the scope of private property rights. The relevant – and difficult – questions are, first, what is the basis for the social-obligation norm and, second, what is its scope.

Timothy K. Choy (Ohio State University), Prior obligations: attachments to ‘originality’ in post-colonial Hong Kong

This paper considers the social life of a colonial land law in Hong Kong. It focuses on the designation of certain people and villages that pre-dated British occupation in late 19th-century Hong Kong as indigenous or “Original.” The way this designation and its attribution of land ownership in fact formalized a colonial misunderstanding of customary Chinese law is well-known, and I do not seek in this paper to reiterate that critique. Instead, I explore how the peculiar property rights accorded Original inhabitants through their colonial designation as such have been re-inflected in Hong Kong in recent years through creative real estate investment strategies and political mobilizations, including an attempt by a fishing village to achieve status and rights akin to those of “Original” inhabitants on account of their village’s existence prior to colonial rule. I conclude with some implications of these examples for understanding the legal legacies of colonialism and relations between law and context.

Eduardo Penalver (Cornell University), Property Outlaws

Most people do not hold those who intentionally flout property laws in particularly high regard. The overridingly negative view of the property lawbreaker as a “wrong-doer” comports with the status of property rights within our characteristically individualist, capitalist, political culture. This reflexively dim view of property lawbreakers is also shared to a large degree by property theorists, many of whom regard property rights as a relatively fixed constellation of allocative entitlements that collectively produce stability and efficiency through orderly ownership. In this Article, we seek to rehabilitate, at least to a degree, the maligned character of the intentional property lawbreaker, and to show how property outlaws have played an important role in the evolution, modification, and transfer of property entitlements. We develop a typology of the property outlaw by distinguishing between “acquisitive” and “expressive” outlaws. Descriptively, we show that each type of property outlaw has enabled the reevaluation of, and, at times, productive shifts in the distribution or content of property entitlements. What emerges from this study is a vision of property law that focuses, not only on its capacity for fostering order and stability, but also on its dynamic function as a site for the resolution of conflict between owners and non-owners.

Eva Pils (Chinese University of Hong Kong), So Who Got Rich First? The Property Law Debate in China

When China’s draft property law failed to be enacted in March 2006 after intense public debate, various reasons were cited for this debacle: a high-level controversy about the direction of China’s reform process, Marxist criticisms of the draft claiming that it represented a violation of China’s socialist constitution, and popular outrage at China’s growing problem of social injustice. The present essay addresses the still ongoing debate about the question whether China should consolidate its current ownership regime by enacting the draft property law, as a debate in which different conceptions of equality are at play without having been fully articulated. Enactment of the current draft is likely to perpetuate existing legal discrimination, as well as to consolidate conditions which have already led to alarming social inequality. Both these problems could be better addressed if the social obligations related to ownership could be discussed more freely. In China, such a discussion would have to address private ownership, but also the economically, socially and politically important institution of socialist public ownership. What appears to hinder a deeper reform debate is the connection between the property regime in place and the interests of the Communist party elite. The recent Marxist criticisms of the proposed new property law have therefore successfully drawn attention to the fact that the Party’s claim to legitimacy now rests in the same institution, which also contributes to undermining that claim.

Thu, Jul 26 - 12:30pm - 2:15pm  Building/Room: HU / 31

Panel: Property, Citizenship, and Social Entreprenuerism in a Global Marketplace I 2331 

Panel Abstract:

This is panel one of two related panels that explore the relationships among property, citizenship and social entrepreneurism in a global market context. These relationships are critically important to understand in these times of major transition and transformation in the emerging and developing world.

The panels will explore the proposition that a just and accessible property law system is the basis for both good citizenship and successful economic development. Discussion will include consideration of all areas of property law and theory; including real, personal, intangible, intellectual, and cultural property.

Property, in all its forms, addresses the fundamental relationships between the state and its citizens, and among the people themselves. For this reason we will examine property in terms of its ability to foster democratic forms of governance, advance social justice, promote citizenship, build sustainable and supportive communities, and enhance the stewardship of our global environment and its natural resources.

Papers:

Tom Allen (University of Durham), The Function of Property and the European Convention of Human Rights

This paper investigates the nature of the right to property guaranteed under the First Protocol to the European Convention on Human Rights ('P1-1'). It argues that the European Court of Human Rights has been torn between two theories of the right to property. The first is the "integrated theory". It holds that the right to property shares common values and purposes with other Convention rights. It follows that the interpretation of P1-1 should reflect principles developed in the interpretation of other Convention rights. I will show that the integrated theory supports a "social model" of property, under which the Court would interpret P1-1 with a view to property's function in enabling individuals to play a meaningful role in the social, economic and political life of their community. The integrated theory is then contrasted with the "comparative theory" of P1-1. It tends to look outside the Convention for guidance on the interpretation of P1-1, to comparative law on rights of property. Implicitly, it rejects the notion that there is a strong link between the right to property and other Convention rights. In addition, it supports the use of either a "legal model" or an "economic model" of property in the application of P1-1, neither one of which give weight to the social function of property. The paper would show that it is the comparative theory that dominates the case law of the Court of Human Rights, and discusses how this illuminates the European conception of a human right to property.

Daniel Fitzpatrick (Australian National University), Property Regulation through Private Ordering: Some Insights from Social Trauma in Aceh and East Timor

The use of social norms and private ordering to regulate property continues to attract significant attention. It also attracts strange bedfellows: from Hayekian principles of spontaneous order, to anthropological interest in customary tenure, to economic theories of common property. All these sources of property theory explore the notion that norms and agreements may substitute for law. Yet, many questions remain about the nature and limits of private ordering, and the actual and appropriate interaction of laws, norms and agreements. This paper considers these questions in the context of severe trauma: genocide in East Timor and massive disaster in Aceh. Around 200,000 East Timorese - almost a third of the population - were killed in the Indonesian occupation of 1975-1999. Over 200,000 Acehnese were killed in the 2004 Indian Ocean tsunami. In each case, property systems were deeply affected by the destruction of most land records, displacement of over 500,000 people and damage or destruction of over 100,000 houses. In each case, as well, the predominant form of property regulation is custom and tradition, and the basic mechanism for restoring land rights has been norms and private agreements. The extreme circumstances of East Timor and Aceh open a window on private property ordering and its application to circumstances of social trauma. Based on extensive fieldwork in both environments, this paper will focus on three issues relating to the nature, efficacy and role of private ordering. First, it considers the mechanisms by which property systems recover through private ordering after disaster. Second, it considers the way in which private ordering adapts to displacement and the claims of social outsiders. Finally, it considers the under-recognized role of law in supporting and ameliorating private mechanisms for property rehabilitation.

Robin Paul Malloy (Syracuse University), Property in a Market Context

It is important for emerging and transitional economies to have an informed understanding of property in a market context. As F.A. Hayek suggested, the primary function of a market economy is not to allocate resources efficiently but to overcome knowledge problems resulting from dispersed and fragmented information. In this function the market is facilitated by a formal, transparent, stable, and predictable system of property rights. In this paper I discuss some of the implications of this Hayekian view which runs counter to the American law and economics paradigm. Significance is given to the idea that knowledge and information are socially situated and involve exchange within and among cultural-interpretive communities. In this context property functions as an information signifier for exchange, and communities with well developed property law infrastructure have a competitive advantage over communities without such systems.

Laura S. Underkuffler (Duke University), Property, Polity, and Structural Inequality

Recently, the question of the taking of private property for general economic development has loomed large in American constitutional jurisprudence. In particular, a recent decision by the United States Supreme Court which upheld the taking of modest private homes for the purpose of commercial and residential economic development ignited an unprecedented outcry from politicians, journalists, and ordinary citizens. This paper will explore the deeper structural issues in property and its protection that cases like this raise in the American and other constitutional (and non-constitutional) systems. It will argue that justice, in such cases, requires recognition of the deep linkages among property, the meaning of community, and socio-economic inequality.

Fri, Jul 27 - 8:15am - 10:00am  Building/Room: HU / 31

Panel: Property Rights: Structures of Property 3131

Papers:

Vardaan K. Ahluwalia (National University of Juridical Sciences), Intellectual Property Rights: Solution to the Impasse Between Individual and Society from an Indian Perspective

This paper is an attempt to analyse intellectual property rights in the context of the notion of individual and societal benefit under the Indian Constitution.This paper is therefore geared towards gaining an understanding as to what is the right choice in the Indian context. A strong intellectual property regime as advocated by the adherents of TRIPs or a weak intellectual property regime which existed until recently.This paper will seek to analyse both these perspectives in order to determine the best possible position for the Indian context. The paper will proceed in three parts. The first section of the paper will analyse the benefits of a strong intellectual property regime along the TRIPs lines, from the perspective of both the individual innovator and the society as a whole. The second section will consist of an analysis of the arguments against a strong intellectual property regime, followed by a study of the pharmaceutical sector in India in order to substantiate the concern raised.The aim herein will be to establish not only that the argument extended along the societal benefit lines is a non-functional one, but also that it works in reverse, causing more harm than good.The third section will be a constitutional analysis seeking to determine the position of the Indian Constitution as regards a conflict between the individual and societal interest. This will then form the basis for determining whether the duty of the Indian State lies in an acceptance or rejection of the TRIPs-based setup of intellectual property rights.

Mohammad Alramahi (The University of Manchester), To What Extent ICANN-Accredited Registrars Are Guilty?

Domain names trade is perhaps one of the most profitable businesses in the history of the Internet. ICANN-Accredited Registrars are specialist in selling and buying domain names. A cyber-entrepreneur is a domain name registrar who engages himself in such activities by communicating with interested individuals who are willing to purchase “attractive” domain names. The cyber- entrepreneur ideally sells clever domain names without infringing any rights of other parties. However, rarely, cyber-entrepreneur purchases names that may infringe either directly or indirectly other third parties legal rights. The scenario is when an unwary cyber-entrepreneur gets an offer from a cyber-squatter to purchase an attractive name and decide to purchase that name, the true owner (third party) then realises the name is no longer vacant at normal fee (it’s available though); rather he finds it being offered at substantial fee. This paper will address many crucial questions, in the case of infringement, would the cyber-entrepreneurs who acted in good faith be liable for registering a domain name that infringes the rights of a third party? Or would that effect the contractual relationship between the original seller individual and the domain name seller? To what extent a domain name cyber-entrepreneur is guilty, if any, for selling a name that infringes other parties rights (i.e. the true trademark owner) when the cyber-entrepreneur acts in good faith? Would the court consider this as another facet of cyber-squattering?

Benjamin Barros (Widener University), Group Size and Heterogeneity in the Design of Legal Structures

Human interactions are often shaped by legal structures. Property rules, whether publicly or privately imposed, can influence how and when neighbors interact with each other. Public corporate law and private corporate charters and by-laws define the context in which members of a corporate board work with each other to fulfill their duties. Lending groups organized by private microfinance banks create mutual dependencies between borrowers. This paper explores the social-science research on the impact of group size and heterogeneity on two types of prosocial behavior – cooperation in the provision of public goods on relatively large scales, and helping behavior on relatively small scales. It then applies the lessons learned from that research to examine ways to design legal structures to encourage people to act prosocially. The paper first looks at the impact of group size and heterogeneity on property structures involving the management of common resources and the organization of residential communities. It then examines three contexts involving small-scale interactions: corporate boards, juries, and private microlending groups like those organized by the Nobel-Prize-winning Grameen Bank. In each of these contexts, the social-science research on helping suggests (with some important nuances) that the groups may function best as their size and heterogeneity are reduced. The paper concludes by discussing the potential conflict between taking advantage of small and homogeneous groups to encourage prosocial behavior on the one hand, and values of social diversity on the other.

Shubha Ghosh (Southern Methodist University), Identifying Competitive Norms in Intellectual Property

This paper makes the case for considering intellectual property law as a type of competition policy by examining norms of competition in the debate over the scope of intellectual property. Contrary to the neoclassical theory of competition that informs certain aspects of the intellectual property debate, the rhetoric of competition does not focus solely on the tension between price and non-price competition as a mechanism for the allocation of scarce resources. Instead, competition serves to counter two competing visions of the creative and inventive process: the process as a system of patronage and the process as one of collaboration and cooperation. Patronage systems focus on top down hierarchical arrangements where economic resources are used to support the author whose talents are used often to the benefit of the vision and values of the patron. By contrast, collaborative creative arrangements are vertical and based on cooperation. Competition resolves tensions in each of these alternative arranements. First, competition serves to decouple the patron from the author. In other situations, competition serves to resolve tensions that arise in collaborative enterprises when conflicts in vision and values in vertical creative processes. While competition can resolve some of the problems with both patronage and collaborative arrangements, competition introduces problems of its own such as the economic dependence of the author on the marketplace and the problem of duplication and redundancy associated with the independent author. Against this theoretical backdrop, the paper will conclude by consideration of two examples: the patronage system during the period of creative energy known as the Harlem Renaissance and the the continuing intellectual property debates in the fashion industry. These examples illustrate the tensions among competitive, patronage, and collaborative arrangements. These examples also show how the development of competitive norms serve to resolve these tensions.

Sabrina Safrin (Rutgers University), Chain Reaction: How Property Begets Property

Classic theories for the evolution of property rights consider the emergence of private property to be a progressive development reflecting a society’s movement to a more efficient property regime. This paper argues that instead, a more subtle and damaging chain reaction dynamic can come into play that traditional theories for intellectual and other property rights neither anticipate nor explain. The paper suggests that the expansion of intellectual and other property rights have an internally generative dynamic. Drawing upon contemporary case studies, it argues that property rights evolve in reaction to each other. The creation of property rights for some engenders the demand for related property rights by others. These demands and resulting recognition of property rights may have little to do with the value of the resource in question or efficiency concerns. Today’s global economy makes the collateral creation of property rights more pronounced because changes in property rights in one country can trigger unanticipated changes in the property regimes of another. The paper offers three explanations for why property rights beget more property rights. The first draws on group behavior theory; the second focuses on a breach of a cooperative norm; the third flows from the right of exclusion. The chain reaction evolution of property rights helps explain why intellectual property rights have vastly expanded over the last several decades and continue to expand. It also sheds light on the increased transformation of spaces and goods from open access or commons property to exclusive ownership regimes. The chain reaction theory has considerable implications. It anticipates the development of unexpected, extensive and ultimately undesirable property regimes.

Sat, Jul 28 - 8:15am - 10:00am   Building/Room: HU / 26

Panel:  Reconfiguring the Language of Rights 4126

Papers include:

Rose Villazor (Southern Methodist University), Deconstructing Local Anti-Undocumented Immigrant Property Ordinances

More than forty cities and local municipalities have enacted ordinances that punish landlords for renting apartments and houses to undocumented immigrants. The primary goals of these ordinances are to prevent undocumented immigrants from residing and/or working in the cities that passed them in order to preserve the cities’ property values, decrease crime and improve their educational systems. These “anti-illegal alien ordinance” have been challenged and critiqued on the grounds that they are preempted by the federal government’s authority to regulate immigration. While the federal preemption argument is likely to be the strongest legal basis that courts would use to invalidate these ordinances, it is not the only legal grounds that courts may use to strike them down. Specifically, courts could turn to modern approaches to examining land use restrictions to determine the reasonableness of these ordinances. Analyzing the validity of these “anti-illegal alien ordinances” from a property law perspective is not only necessary but also important. By examining the laws from both doctrinal and theoretical frameworks, the paper highlights the impact of these ordinances on those persons most affected by the property restrictions – landlords, neighbors and tenants – that are elided in the constitutional discussion of the ordinances. In so doing, the paper facilitates a nuanced critique of these “anti-illegal alien ordinances.” Property rights are inextricably tied to notions of citizenship. Ultimately, the paper illustrates how the rights, meaning, boundaries and obligations of citizenship are shaped by property law.

Sat, Jul 28 - 8:15am - 10:00am  Building/Room: HU / 25

Panel:  Owners, Judges, and the Decline of Public Interest: Expropriation in the XXI Century (Sponsored by WG Law and Urban Space) 4125 

Panel Abstract:

Expropriation of land has been a major instrument in the hands of the state to reshape both the urban space and property relations. In recent decades, it has been contested both from social movements against evictions and from the rise of 'property rights movements'; thus the notion of 'public interest' is subject to a new revision. Changes in the law on this subject not only reflect changes in the relation between state and society in urban processes, they also create new conditions for the development of that relation.

It has been suggested that there is a trend towards convergence in the law of eminent domain, as part of globalization processes. However, there also seems to be huge differences between national contexts (e.g. a massive use of expropriations in China as part of economic growth, vis a vis a reduction in Mexico and other countries with structural adjustment programs).

The session will encourage comparative analysis of national situations, and their respective international contexts, with a particular emphasis on the role of the judiciary in shaping the use of expropriation of land for urban and infrastructure projects.

Papers:

Carlos Herrera Martín (Instituto Tecnológico Autónomo de México), Expropriations in Mexican Legal Culture: A Survey of Judicial Rulings 1917-2005

This paper analyses judicial decisions around expropriation. Land expropriation is one of the most controversial subjects in the discussion around property. In our research we have found some general tendencies in the use of expropriation and now we have a better picture of expropriation and its legal framework in Mexico. The debate around expropriation involves three main aspects: A controversial subject in expropriation is the procedure. The lack of interest from the legislative branch in modifying the law to adjust to the new social and political realities has generated insecurity and conflict. Closely related to his issue is the second aspect that is strongly debated, not only in Mexico but in the whole world. This second topic is the definition of public use or public interest. This issue has been strongly debated specially by the judicial branch, although this issue receives very little attention form the media. Another topic has appeared in the public debate due to the recent cases that had great political repercussion where the Mexican Government was condemned by the judicial power to pay vast amounts of money as compensation for urban expropriations. This discussion is about what owners have a right to expect as compensation in expropriation cases.

Romain Melot (National Institute for Agronomical Research), Land Expropriation in Courts: Citizens Contesting Public Interest Procedures

Social and economic needs for infrastructures (highways, dams, …), renovation of urban ghettos, lead public authorities to use land expropriation procedures which are liable to concern large areas. These large scale expropriations give rise to strong mobilizations of owners contesting ex ante in courts the legality of these processes. But faced with public administration experts and interventions of national or public interest, citizens may have difficulties to propose their own expert evaluation. Through a statistical study of one year of expropriation cases in French administrative courts on the one part, and interviews whith contesting associations on the other part, we try to identify which categories actors are most active in courts and what kinds of bonds are established between these actors (individual residents and owners, local associations, environment safeguarding associations, local elected officials) during the trials (elaboration of commun legal strategies).

Gustaaf Olivier Reerink (Leiden University), Land Titling and Tenure Security for Indonesia's Lower Income City Dwellers: Experiences from the Kampungs of Bandung

Since the publication of De Soto’s book “The Other Path” in 1989, in which he advocates the large-scale regularization of what he calls ‘extra-legal’ land tenure, there has been renewed attention for registration of land of lower-income city-dwellers in developing countries. Despite his criticism on past registration approaches, De Soto presents an alternative approach that just as ‘regular’ approaches hinges on two important assumptions. First, it assumes that a clear distinction can be made between ‘legal’ and ‘extra-legal’ tenure. Second, and in line with this assumption, it presupposes that legality and tenure security are closely linked. This paper does not support these assumptions. On the basis of legal analysis, a quantitative survey, participant observation, and interviews, it evaluates the effect of the World Bank’s Land Administration Project (LAP) and other land registration efforts on legal tenure security and perceived tenure security for lower-income people residing in kampungs in Bandung, West-Java. The paper shows that there is a continuum of tenure arrangements in these informal settlements. Likewise, the effect land registration on legal tenure security as well as perceived tenure security remains very limited. This does not mean that the land administration programs like the LAP are altogether useless. The paper suggests that such programs should be part of an integrated approach, which involves more ambitious and broader institutional reforms, including initiatives related to tax policies as well as spatial planning and, however politically sensible this may be, land reform.

Jean-Louis van Gelder (University of Amsterdam), Legal Tenure Security, Perceived Tenure Security, and Housing Improvement: An Attempt towards Integration

Current discourse speaks with many voices about the necessity of tenure security for the urban poor and the relationship between tenure security and housing improvement. As viewpoints tend to diverge on whether tenure security should take the form of legal property title or not and whether perceived tenure security offers a viable alternative in this respect, the aim of the present research is to integrate the legal with the perceived or, socio-psychological perspective on tenure security to examine their interrelation. Perceived tenure security and legal tenure security are studied in tenure situations that differ in legal status and the relationship between perceived tenure security and housing investment is quantified. Field research was carried out in Buenos Aires, Argentina, where market forces and economic crises have driven large groups of urban poor into informality. The results show that perceived tenure security is a significant predictor of housing investment and also that legal tenure status and perceived tenure security are strongly related.

Sat, Jul 28 - 12:30pm - 2:15pm  Building/Room: HU / 20

Panel: Infrastructure Commons and Open Access: Environment, Information, the Internet, and Beyond 4320 

Panel Abstract:

This program derives from Brett Frischmann's articulation of a general theory of infrastructure commons, which argues for open access to a variety of resources based on charcteristics related to downstream externalities. Professor Frischmann will present the latest version of his theory, which he argues should apply to the internet, information and environmental resources. Other papers will explore the implications and potential limitations of claims for and against open access to a variety of shared resources. Access to both environmental and cultural resources will be explored.

Papers:

David M Driesen (Syracuse University), The Environment as Infrastructure

This paper addresses two aspects of Brett Frischman’s idea of the environment as infrastructure and puts it in a broader context. First, which environmental resources provide infrastructure. Second, how should the idea of environment as infrastructure influence environmental law. In trying to figure out which environmental resources might be characterized as infrastructure resources, I will try to resolve some definitional ambiguities in Professor Frischman’s work on infrastructure. I will also try to distinguish the idea of infrastructure from the idea of a commons, even though the two may overlap. I will argue that this idea, notwithstanding its ambiguities, adds something useful to environmental law. While we often think of environmental law as a symmetrical question of competing resource uses, I will argue that the idea of infrastructure helps identify an important asymmetry. Often an environmental resource provides infrastructure, while competing uses do not involve infrastructure. This asymmetry may justify careful protection of some environmental resources. Finally, I will suggest that Brett Frischman’s idea fits with a growing trend toward considering the “economic dynamics” of law. This trend features careful consideration of economic incentives sensitive to institutional factors and eschews a narrow cost-benefit calculus as an appropriate basis for policy.

Brett Frischmann (Loyola University Chicago), Environmental Infrastructure

At a very general level, the environment can be viewed as natural infrastructure that is an essential input into a wide range of human and natural productive processes. Consider, for example, a lake. Like a road system, a lake is socially valuable primarily because it can be used in a wide variety of different ways to produce social benefits, often in the form of positive externalities (benefits not taken fully into account by the users and/or beneficiaries). Think about the wide variety of uses of many lakes. They can be used for fishing, boating, swimming, and for other recreational activities. Further, lakes can be used as subject matter for artwork, for commerce, for transportation of goods, for waste processing, as a sink for pollution, or as a drinking water source, to name a few. These uses are in addition to the socially valuable role the lake plays in supporting a complex ecosystem. I raised this idea in An Economic Theory of Infrastructure and Commons Management, and in this paper, I explore it further. Recognizing that lakes create social value primarily when used as inputs into the production of a wide variety of outputs suggests that the nature of those outputs is important when evaluating unavoidable trade-offs associated with resource management. I will explore the notion of sustaining environmental infrastructure commons through complex institutional arrangements that form something akin to semi-commons property regimes but through regulatory regimes. The regulatory approach targets particular consumptive uses of an environmental resource with the aim of limiting consumption to sustainable levels (at least in theory with the appropriate information), while simultaneously preserving an open access/commons regime for a (wide) variety of other uses that generate positive externalities (spillovers).

Gregory N. Mandel (Albany Law School), Disentangling Infrastructure, Commons, and Open Access

Frischman’s theory of infrastructure commons provides a useful lens through which to view a wide variety of societal resources, including information, transportation, environmental, and intellectual property resources. Frischman’s analysis reveals interesting relationships between many of these seemingly disparate resources, and concludes that most public and social infrastructure (nonrivalrous resources that are used to produce public or nonmarket output goods) should be managed by some sort of open access regime. While providing an original and useful descriptive framework, Frischman’s infrastructure theory does not appear to fully develop guidelines for determining which public and social infrastructure resources should be managed through open access regimes and which should not. Rather, the framework appears to imply that all, or almost all, public and social infrastructure resources should be managed through open access regimes. This paper expands upon Frischman’s infrastructure theory to develop normative guidelines to help elucidate how and when to select an open access versus a restrictive regime to govern particular infrastructure resources. This expansion requires distinction between infrastructure resources and commons resources, and various types of each.

Marc R. Poirier (Seton Hall University), Public Trust Resources and the Theory of Infrstructure Commons

Brett Frischmann’s theory of infrastructure commons posits that for resources with certain characteristics, open access is, as a matter of overall welfare, preferable to the exclusion that typically follows from the creation of private property rights. For these resources, only open access allows large and beneficial but unpredictable downstream uses of the resource. Environmental resources and uses may fit Frischmann’s argument, some better than others. The traditional public trust doctrine, with its open access requirement, provides a useful testing ground. Carol Rose has offered two arguments for open access to “inherently public property,” including public trust resources: network effects fostered by and fostering commercial activity (an argument paralleled by Frischmann’s theory); and socialization from the widespread public use of recreational resources. New Jersey’s recent beach access cases require what may be a distinct third theoretical justification, the covert remedying of the ill effects of identity-based discrimination.

Sat, Jul 28 - 2:30pm - 4:15pm  Building/Room: HU / 28

Panel: Resource Rights and Self-Determination for Indigenous People 4428

Papers include:

Rose Villazor (Southern Methodist University), Blood Quantum Laws: Racial Discrimination or Act of Self-Determination? 

This paper examines the tension between the right to self-determination and the right to equal protection in the context of blood quantum laws. Several indigenous tribes and communities in the U.S. use blood quantum rules to determine membership rules, property rights, and other privileges and benefits attendant to tribal membership. For example, in two U.S. territories, only those people with indigenous blood may own property. In March 2007, the Cherokee Nation decided to exclude more than 2,800 Indians whose “bloodlines” were traceable to freed African slaves. These two examples illustrate the tension between the right to self-determination and the right to equal protection. Viewed from the lens of many indigenous peoples, blood quantum rules exemplify their ability to exercise their right to self-determination. Examined from the perspective of those people who are arbitrarily denied membership and/or equal treatment, blood quantum rules illustrate yet another example of policies designed to subordinate historically marginalized groups. In examining the various rights and interests at stake in the Cherokee Nation and U.S. territorial indigenous groups, this paper highlights the complexity behind the tension between the right to self-determination and equal protection.

Sat, Jul 28 - 2:30pm - 4:15pm  Building/Room: HU / 25

Panel: Property, Citizenship, and Social Entreprenuerism in a Global Marketplace II 4425 

Panel Abstract:

This is panel II of two related panels that explore the relationships among property, citizenship and social entrepreneurism in a global market context. These relationships are critically important to understand in these times of major transition and transformation in the emerging and developing world.

The panels will explore the proposition that a just and accessible property law system is the basis for both good citizenship and successful economic development. Discussion will include consideration of all areas of property law and theory; including real, personal, intangible, intellectual, and cultural property.

Property, in all its forms, addresses the fundamental relationships between the state and its citizens, and among the people themselves. For this reason we will examine property in terms of its ability to foster democratic forms of governance, advance social justice, promote citizenship, build sustainable and supportive communities, and enhance the stewardship of our global environment and its natural resources.

Papers:

Lisa A. Dolak (Syracuse University), Media Portrayals of Intellectual Property Rights

The recent dramatic expansion of intellectual property rights (IPR) acquisition and exploitation around the globe has made IPR a pressing issue of policy debate and regular item on the Supreme Court's docket. The surge in IPR activity has also drawn increased media attention, including extensive coverage of several high-profile IPR disputes. This study of how the national and international mass media portrays intellectual property rights assesses this coverage, examining the images of IPR constructed by the media as well as how these media images have shaped popular understanding and influenced judicial decisionmaking. Are different types of IPR owners represented favorably or unfavorably in the media? Which IPR-related conduct (e.g., acquisition, enforcement, licensing) does the media laud or condemn, and under what circumstances? Is there evidence that media portrayals influence judicial decisionmaking? What is the prevalence and significance of errors in media coverage of IPR? These and related questions are considered in this study.

Thomas W. Mitchell (University of Wisconsin), State-Action and Private Property Regimes: A Case Study of Racial Wealth Disparities

This paper examines the manner in which state action has contributed to generating wealth disparities between African American and white rural property owners in rural North Carolina. The paper highlights the fact that even if private property law regimes are designed to be just and equitable in some formalistic sense, discriminatory state action can undermine the very ability of a property system to enable citizens of all races to create and maintain healthy, vibrant communities. The paper presents a case study of the Roanoke Farms Resettlement Community. This community was one of forty-five agricultural communities created during the New Deal that were designed to facilitate the ability of poor farm families to join the ranks of the property owning class. Roanoke Farms was exceptional in that it had a black section and a white section whereas all the other communities created were essentially single race. Although New Deal scholars consider the New Deal agencies that established and administered Roanoke Farms to be amongst the most progressive of the New Deal agencies established in terms of racial matters, the primary historical documents that I’ve uncovered reveal that at significant junctures, these agencies intervened to favor the white section at the expense of the black section. The disparities one observes seventy years later amongst property owners who own property in what was the former black section as compared to their counterparts on the former white section can only be fully understood by taking into account the interaction between state and private actors.

Karen Morrow (Swansea University), The Meaning of LIFE: Nature Conservation and the EU’s Financial Instrument for the Environment

LIFE is the EU’s financial instrument for the environment and a central plank of the Union’s broader environmental policy. It operates to foster development of clean technologies, species monitoring and habitat preservation. In the latter area in particular, the scheme provides an ideal opportunity to examine the relationship between regulation, under the Birds (Directive 79/409/EEC) and Habitats (Directive 92/43/EEC) Directives and funding of protective activities, in ways that directly impinge upon individual interests in property. This issue is often a vexed one and is intimately concerned with the need to secure compliance by those regulated on the one hand and stakeholder involvement in order to secure efficient funding on the other. This involves using a combination of regulation and funding to shape the use of property. In order to illustrate areas of tension and synergy, this paper will examine the case law that has arisen at the interface between property and land use planning law in the UK and EU nature conservation law and policy. It will examine the operation of the LIFE programme insofar as it concerns these issues and property rights from the LIFE I (Council Regulation 1973/92) through to the extended LIFE III (Regulation (EC) No 1682/2004). The paper will conclude by considering future developments in this area, in the form of LIFE+, which will run from 2007-2013, is currently under discussion.

James Charles Smith (University of Georgia), Restrictions on Freedom of Expression imposed by Servitudes

This paper examines an important type of contractual restrictions on an individual’s freedom of expression: restrictions imposed on interests in real property pursuant to the law of servitudes. These private land-use controls, traditionally described as real covenants and equitable servitudes, affect millions of U.S. families, who has purchased or rented homes subject to servitudes regimes. Homeowners associations enforce rules set forth in recorded instruments, and they often have the ability to enact new regulations. Sometimes the rules have a substantial inhibiting effect on the ability of individuals to engage in freedom of expression. I will discuss several cases that address the conflict between servitude rules and expression and evaluate alternative approaches that may reconcile the competing interests of owners and community.

Sat, Jul 28 - 2:30pm - 4:15pm  Building/Room: HU / 32

Panel:  Property and Technological Change in the Twentieth Century 4432

Panel Abstract: 

New technologies have prompted the redefinition and rethinking of property. This panel explores how technological change in the twentieth century changed different forms of property, including real property, intellectual property, and reputation in the United States and Europe. The invention of airplanes invited a new way of thinking about the sky as property. The invention of new technologies for recording and disseminating music invited a new way of thinking about sound as intellectual property. And the development of consumer culture invited a new way of thinking about creative labor and attribution as property. This panel is a transnational and multidisciplinary inquiry into the historical, theoretical, and cultural construction of new forms of property enabled by the rapid technological change of the mid-twentieth century. Drawing on the methods of legal history, cultural studies, and legal theory, and using examples drawn from British, American, and other legal systems, the panel will interrogate how natural and social phenomena became property, and how the new forms of property enabled by new technology changed the cultural understanding of property and social relations.

Papers:

Stuart Banner (University of California, Berkeley), Trespassers in the Sky: The Invention of Flight and the Ownership of Airspace:

That the owner of land owned up to the heavens was a legal maxim for centuries, in common law and civil law countries alike. The maxim of course died after the invention of the airplane, but it died very slowly, over the course of several decades, as lawyers grappled with a host of difficult questions. Were aviators trespassing on the land beneath? If there was to be a right of flight, would landowners have to be compensated? If landowners lacked the right to exclude planes from their airspace, did that imply that nation-states similarly lacked the sovereign power to exclude foreign aircraft? The airplane’s effect on the law of airspace is a nice case study of the relationship between technological change and legal change, because the maxim’s demise was clearly a result of the airplane, but the pathway between cause and effect was a long and complicated one, shaped by all sorts of intellectual and material influences that long predated the invention of flight.

Anne Barron (London School of Economics and Political Science), Property, Copyright, and Technological Change

The institution of copyright is most frequently accounted for as a legal mechanism for encouraging creativity. However, the first modern copyright system (inaugurated in England by the Statute of Anne 1709) took shape as a mechanism for regulating the uses to which the printing press was put, and borrowed its modes of identifying the object of copyright (the ‘book’), as well as its understanding of what it would mean to trespass upon this object (‘printing’ the book), from concepts made thinkable by the technology of moveable type. Thereafter, copyright law’s conceptions both of property, and the possible objects of property, have changed in close association with the development of information and communications technologies. This paper will attempt to theorise the role played by these technical developments in shaping the institution of copyright in the twentieth century, with particular reference to the bundle of rights comprised in copyrights in sonic artefacts (musical works, sound recordings, and musical performances).

Catherine Fisk (Duke University), Attribution and the Developing Property Right of Reputation

Attribution of cultural and scientific works (including books, films, advertisements, scientific innovations, to name a few), and indeed attribution of any work, creates value both in the work and in the human capital of the person to whom the work is attributed. Attribution is a process of claiming or obscuring authenticity, of giving meaning to objects, and of valorizing human effort. New technologies enable new forms of attribution and new ways of communicating about the relationship between people and the things they create. Technological and cultural changes in the first half of the twentieth century enabled a vast expansion of the ways that people were credited for their work, and thus created an economy of reputation and a notion of human capital that transformed how people thought of the relationship between labor and property. Technological change, the popularization of invention and authorship, the commercialization of creativity, and the explosion of ways to communicate to the public about the creation of new products, and the rise of consumer culture and the concept of the corporate brand in essence created a new form of property: the attribution of creativity. Twentieth century disputes between corporations and their creative employees over attribution shaped the intellectual property of the twenty-first.

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