Friday, May 18, 2007

Moringiello on Tangibility

My colleague Juliet Moringiello (Widener) has posted False Categories in Commercial Law: The (Ir)Relevance of (In)Tangibility on SSRN.  Here's the abstract:

Almost fifty years ago, Grant Gilmore, the co-reporter for Article 9 of the Uniform Commercial Code, recognized the difficulties that intangible assets pose for commercial law, noting that “if you can see it, count, weigh and measure it, it exists; if you can't, it doesn't.” The original drafters of Article 9 were concerned primarily about facilitating secured transactions in intangible payment rights. Today, the difficulties that Gilmore identified are multiplied by the proliferation of electronic assets, such as Internet domain names and assets in virtual worlds such as Second Life.

Although Article 9 of the UCC was revised fairly recently, one area in which it does not adequately cover electronic assets is in its enforcement provisions. The enforcement provisions in Article 9 are based on a false distinction, a distinction based on the tangibility or intangibility of the asset in question. While courts can modernize commercial law through their decisions, courts faced with emerging electronic assets tend to cling to the same false distinction, viewing tangible property as the property paradigm and viewing many intangible assets as either new forms of “intellectual property,” or worse, as “not property” at all.

This paper explores the problems caused by commercial law's fealty, in the creditors' remedies area, to the notion of tangibility, and suggests that courts and other lawmaking bodies look to general property principles in fashioning rules to govern electronic assets. The article analyzes recent judicial decisions and legislative enactments dealing with electronic assets and identifies some common mistakes that lawmaking institutions make in dealing with these new types of assets. The article concludes by analyzing some older decisions in which courts were forced to refine the concept of possession to account for new types of assets and suggests that courts dealing with electronic assets look to these, and not necessarily to other cases dealing with intangibles, in fashioning rules to govern electronic assets.

Ben Barros

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May 18, 2007 in Intellectual Property, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Guntermann and Moon on Age Restrictions and Property Values

Karl L. Guntermann and Seongman Moon (both of Arizona State University) have posted Age Restriction and Property Values on SSRN.  Here's the abstract:

This study finds evidence of an age restriction premium that is maintained over time and across varying market conditions. Prior research has demonstrated that the reduced uncertainty associated with private covenants and deed restrictions can be capitalized into value. Age-restricted subdivisions provide a measure of certainty that future property owners must meet the same threshold age requirement satisfied by current owners. The evidence presented here is that this enhanced certainty is capitalized into property values, independent of the structural characteristics of individual units or subdivision amenities. Proposed federal regulations for age-restricted projects created uncertainty for several years in lower priced subdivisions that might not have met the new minimum quality standards. However, there is no evidence that this uncertainty impacted house prices.

Ben Barros

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May 18, 2007 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (1)

Wednesday, May 16, 2007

ABA's Proposed Interpretation of its Standards for Accreditation

Thanks to a letter that Professor Gary Rosin of South Texas is circulating (available here), I learned that the ABA is considering what appears to be a pretty important change in its standards for accreditation.  Rosin, you may recall, is the author of an important study on what affects student bar pass rates (including, of course, students' entering credentials).

Standard 301(a) now states that "a law school shall maintain an educational program that prepares its students for admission to the bar."  The proposed interpretation (301-6) would "formalize and clarify the approach taken by the Accreditation Committee in reviewing bar passage data from law schools."

The proposed interpretation provides, among other things that:

If data demonstrate to the Accreditation Committee that the school's first-time bar passage rates frequently are seventy percent or below, the school shall be asked to provide additional data in order to demonstrate compliance with the Standards.

Professor Rosin describes the proposal as establishing "a flat 70% law school [bar pass rate] as prima facie evidence of minimum satisfactory performance of a law school’s academic program."  He points out, quite appropriately, that this discriminates against schools that are in jurisdictions that require high bar pass scores.  (The ABA, as mentioned above, maintains it is already following this practice.)  I'll be interested in hearing where all this goes.  Apparently, there was a public hearing on this in San Francisco today.

I have written about bar pass rates a little in the past over at money-law (including some in response to Bill Henderson's post).  I haven't seen much discussion of this, though RattlerNation has some more details.

Alfred L. Brophy
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May 16, 2007 | Permalink | Comments (1) | TrackBack (1)

Modifications to D&K

In the comments to Prawfsblawg's recent post on picking a property text, I promised to do a post on my modifications to D&K.  So here it is.  My supplement varies in size from year-to-year, depending on what I'm trying to do.  Some years I've had time to do some extensive work with the students on takings and/or property theory (I have six credits, which gives me plenty of time).  But here is the core of what I change, focusing on cases that I don't like:

I reorder the first couple of units in the book to create a coherent introduction to the issue of possession through the law of personal property.  So I start with Pierson v. Post, immediately followed by Popov v. Hayashi as a supplement.  I do the rest of capture, then a short unit on bailments using Peet v. Roth Hotel and First American Bank, NA v. D.C.  I think that bailments are worth covering, and don't like their omission from D&K.  I then do finding and gift.

For the next unit, I do possession issues in land, doing discovery, the right to exclude, and adverse possession.  I supplement the right to exclude material with a short excerpt from Lior Strahilevitz's article on the right to exclude.  In adverse possession, I replace Van Valkenburgh v. Lutz with Marengo Cave.  I actually like the facts of Van Valkenburgh, but New York's adverse possession statute is very idiosyncratic, and I like Marengo Cave better as an introduction to adverse possession.  In a short unit on IP, property in the body, and theory, I skip most of the material in the book -- I don't like INS v. AP much since it is so dated.  I was happy to see better treatment of Kozinski's dissent in White v. Samsung in the new edition.  I supplement with Kremen v. Cohen, which is a great IP theory/cyberlaw case.  I teach Moore v. Regents because I love the facts, but I hate the case because of its poor legal reasoning.  I also save the Demsetz material for later when I cover nuisance.

Continuing with my out-of-order approach, I then do Landlord-Tenant.  I replace Ernst v. Conditt with Neal v. Craig Brown Inc.  I have a hard time using a case that screws up the difference between privity of contract and privity of estate to teach privity.

I really focus on problems in the estates and future interests material -- I might actually skip all of the cases on defeasible estates next year.  I've written problems sets for both basic future interests and the rule against perpetuities (if you'd like the problem sets, send me an e-mail and I'd be happy to share them).  I don't teach Symphony Space or any other cases for the RAP, but do talk about a PA case that applied the RAP to an option.  I think that the co-ownership unit works very well, and don't modify it at all.

In the unit on transactions, I skip Rockafellor v. Gray, which is loathsome, though I spend a lot of time the issue of whether the present covenants in a general warranty deed "run with the land."  I do teach Stambovsky v. Ackley even though I don't like it -- I consider cutting it every year.  In the recording material, I skip Board of Ed. v. Hughes, and skip some of the more complicated chain of title problems.  I generally like the servitudes material, though I'm starting to wonder whether Miller v. Lutheran Conference is worth the trouble.  In the land-use unit, I don't teach Euclid for reasons I've discussed previously, though I do lecture briefly on the case and on Euclidian zoning.

My biggest modifications are in the takings unit, which isn't surprising since I'm a takings geek.  I supplement with Madison's essay Property and short excerpts from my articles on Berman and Midkiff (giving background for Kelo) and on the Police Power (focusing on the original understanding of the takings clause).  I lecture on Loretto -- the case really isn't that interesting, though the rule it sets is important, and the version of the case in the book is way too long.  But the biggest change I make is to do excerpts from Commonwealth v. Alger and Mugler v. Kansas before doing Hadacheck, Mahon, Penn Central, and Lucas.  I don't think you can understand either Mahon or Lucas without understanding Alger and Mugler.  (I explain why Alger is important in the article on the Police Power).  I have case edits of both that I'd be happy to share.  I do Palazzolo and Tahoe-Sierra very quickly -- Palazzolo is worth mentioning for its rule on subsequent owners being able to make a takings claim, and Tahoe-Sierra is vaguely interesting for the strategy that the plaintiffs tried to use, but frankly isn't as interesting as many people make it out to be.  I don't think that any serious observer thinks that Justice Stevens's dicta in the case has finally resolved the denominator problem.

I'm always trying to try new things, so I'd be delighted to hear about how others modify their courses.  I'll be visiting at Catholic next year, where Property is a four-credit class, so I'll need to think hard about where to spend my time.

Ben Barros

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May 16, 2007 in Teaching | Permalink | Comments (0) | TrackBack (1)

Monday, May 14, 2007

Cornell/LSE Conference on Property

Cornell Law School and the London School of Economics' Law Department are sponsoring a conference on Techniques of Ownership: Artifacts, Inscriptions, Practices.  The conference is being organized by Greg Alexander (Cornell) and Alain Pottage (LSE), and will be held July 20th & 21st 2007 at the LSE.  Here's the description:

This interdisciplinary conference brings together a range of perspectives for reflection on the question of ownership. The conference theme – techniques of ownership – is designed to focus attention on those social or institutional practices that are taken for granted in many analyses of ownership. Often, theoretical approaches simply accommodate the analysis ownership to models of society and social action that are known in advance of enquiry into the effects of ownership. Many theories of ownership seek only to rationalize existing institutions, practices, and concepts, or to develop normative theories about the most appropriate regime of ownership, based on some foundational value, such as fairness, economic efficiency, or human flourishing. The objective of this meeting is to encourage explorations of the diverse kinds of sociality in which ownership might be involved and which might in some sense be seen as contingent products of ownership. Precisely because it is more suggestive than prescriptive, the theme of ‘technique’ serves as a vehicle for articulating a variety of critical perspectives. The papers canvass sites and contexts such as queues and kibbutzim, artifacts such as passports, patent specifications, and territorial facts; instrumentalities such as the pledge, the biotechnological contract, or modes of inscription, and institutional constructs such as quasi-owners, responsive governors, and excluded subjects.

The following papers will be presented at the conference:

Greg Alexander, Toward a social obligation norm in private property regimes
Hanoch Dagan, Re-imagining takings law
Joe Singer, Property norms: reflections on the externalities of ownership
Laura Underkuffler, Property as constitutional myth: utilities and dangers
Rosemary Coombe, Community subjects and governmentality's limits: revisiting possession
Mariana Valverde, Becoming a stakeholder in the urban moral economy: ownership claims beyond the economic
André Van der Walt, Property and marginality
Kevin Gray, The legal order of the queue
Thomas Scheffer, Owning, not owning, and borrowing an ID card
Kara Swanson, The bureaucracy of genius:  the role of the clerk in the American patent system
Avital Margalit, The modified kibbutz: from communal relations to property rights
Eduardo Peñalver, The problem with land
Nomi Stolzenberg, Facts on the ground
Mario Biagioli, Originality, novelty, and their inscriptions
Annelise Riles, Collateral relations: Property rights in the near future
Alain Pottage, Representation and invention: animate and inanimate embodiments

Ben Barros

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May 14, 2007 in Conferences | Permalink | Comments (0) | TrackBack (0)

Lindsay Robertson Guest Blogging

Robertsonconquest It is my great pleasure to introduce Lindsay G. Robertson, of the University of Oklahoma, who'll be guest blogging with us for a while.

Lindsay's the author of an important volume on Johnson v. McIntosh, Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands, published by Oxford University Press in 2005.  You may recall our discussion of it last year, in our talk about "Which Case Should Be First."  Now that it's out in paperback I think that your students would enjoy reading it in tandem with Johnson

Lindsay teaches and writes in Native American law and property, as well as legal history, and is working as a consultant to the state department on rights of indigenous peoples.  He holds a J.D. and Ph.D. from the University of Virginia and is a member of the storied Virginia Law School class of 1986, which produced property and wills profs William Brewbaker and Barry Cushman.

I'm particularly looking forward to his thoughts on Johnson. And I hope he'll talk a little about including Native American law into the property curriculum.

Al Brophy
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May 14, 2007 in About This Blog | Permalink | Comments (0) | TrackBack (1)