PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Thursday, July 12, 2007

Menell on IP and the Property Rights Movement

Peter S. Menell (Boalt) has posted Intellectual Property and the Property Rights Movement on SSRN.  Here's the abstract:

The article examines the recent efforts of the Property Rights Movement to expand the “property tent” to emcompass intellectual property. In eBay v. MercExchange, a case addressing the standard for injunctive relief in patent cases, some property rights advocates argued that the Supreme Court should look to trespass and encroachment cases to establish a strong presumption favoring a right to a permanent injunction. More generally, Professor Richard Epstein has suggested that “structural unity” between real and intellectual property should guide courts and legislatures to use the real property mold in evolving intellectual property law. This article shows that the origins, philosophical foundations, and economic ramifications of real and intellectual property are quite distinct and that uncritically basing intellectual property law on a real property analogy is likely to cause more harm than good. The article also suggests that property rights advocates' effort to expand the “property tent” to include intellectual property is likely to backfire, calling attention to the interdependency of resources and the need for a significant government role in governing allocation and use of property.

Ben Barros

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July 12, 2007 in Intellectual Property, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Dana on Reframing Eminent Domain

David A. Dana (Northwestern) has posted Reframing Eminent Domain: Unsupported Advocacy, Ambiguous Economics, and the Case for a New Public Use Test on SSRN.  Here's the abstract:

The two eminent domain reform alternatives currently on the political agenda are a flat ban on condemnations or a ban on only economic development condemnations coupled with continued allowance of blight condemnations (the approach in most reforming states). Although the possible effects of reform are central to the current debate, scholars have not carefully addressed those effects. With regard to the quantitative effects of reform, this Article uses an accessible model to demonstrates that: (1) a flat ban on all exercises of eminent domain will result in some less development in urban areas (poor or not poor) and some more development in exurban or rural areas; (2) a ban on only economic development condemnations (which allows so-called blight or blight removal condemnations to continue as before) will result in some more development in poor urban areas (but not necessarily in urban areas as a whole) and in exurban or rural ones, and less development in suburban areas (at least non-poor suburbs); and (3) the extent to which alternative means of subsidizing new development (such as tax relief) will offset the loss of eminent domain depends on the level of competition among localities for new development prior to ban or restrictions on the use of eminent domain. We can say less about the quality of the development after eminent domain reforms than we can about the quantity of development after eminent domain reforms, as the qualitative claims about the nature of the development that will be encouraged or discouraged as a result of eminent domain “reforms” lack both theoretical and empirical support. Stated simply, there is no defensible way to categorize as good or bad, economically viable or non-viable, efficient or inefficient, socially beneficial or socially harmful, the development in urban areas that will be lost as a result of a flat ban on eminent domain or (in poor urban areas at least) that will be gained as a result of a ban on economic development condemnations coupled with continued allowance of blight condemnations. Given that, a new approach to the public use component of eminent domain law is needed.

Ben Barros

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July 12, 2007 in Recent Scholarship, Takings | Permalink | Comments (1) | TrackBack (0)

Property, Citizenship and Social Entrepreneurism Workshop

Like Ben (and many other readers of this blog), I will be attending the Law and Society conference in two weeks.  Before that, I will be attending another conference, which focuses on property law.  The Center on Property, Citizenship and Social Entrepreneurism at Syracuse University College of Law, in conjunction with Durham University's Department of Law, will be sponsoring a workshop on comparative, transnational, and emerging issues in property law.  It will be held in Durham University on July 18-19, 2007.  I look forward to meeting some of you at either conference.

Rose Cuison Villazor   

July 12, 2007 in Conferences | Permalink | Comments (1) | TrackBack (0)

On the Road

I'm off to Cape Cod for vacation next week, then will be in Berlin for Law and Society the week after that.  I'm not sure what my internet access will be, so blogging from me might be light for a bit.  I hope to be able to post, though, especially from Berlin.

Ben Barros

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July 12, 2007 in About This Blog | Permalink | Comments (1) | TrackBack (0)

Wednesday, July 11, 2007

Carrillo on Adjustable Rate Mortgages and Class Action Rescission Claims the TLA

Professor Jo Carrillo of the University of California, Hastings has posted "Dangerous Loans: Adjustable Rate Mortgages and Class Action Rescission Claims Under the Truth in Lending Act" in the University of California, Berkeley's Center for the Study of Law and Society, Jurisprudence and Social Policy Program JSP/Center for the Study of Law and Society Faculty Working Papers series.

Here is Professor Carillo's abstract:

Housing prices do not always go up, interest rates do not always stay down,borrowers cannot always refinance, and physical shelter can be lost for not making mortgage payments. Were our cars as dangerous as the new mortgage products on the market, we might all be injured or dead. Still, lenders claim that innovative lending products enhance consumer access to credit. They believe that increased access to credit democratizes the housing market. And they insist – against a growing body of evidence – that option adjustable rate mortgages, though untested, are safe financial products.

But reality is setting in. Option ARMs can be dangerous to consumers, if not ruinous, in the perfect financial storm. When an option ARM product adjusts upward, what was once affordable can become unmanageably expensive. Imagine charging $331,200 – the median mortgage owed by buyers in default in California in April of 2007 – on an adjustable rate credit card charging 11% APR and rising. Now add your current credit card debt to that amount, and the ordinary expenses of living. For many consumers, the result is bankruptcy or rescission. Indeed, lawsuits are in the works as thousands upon thousands of consumers realize that the loan that lured them with promises of low monthly payments has left them even more mired in mortgage debt than before.

This article analyzes and places into market context three recent consumer class action lawsuits that were brought under section 1635 of the federal Truth in Lending Act (TILA). TILA allows for class action lawsuits for damages under section 1640, but TILA is silent on whether classwide rescission claims are permissible under section 1635. On the legal side, whether a class seeking rescission can be certified will depend on how courts interpret section 1635. On the economic side, it will depend on how access to credit issues are framed.

Alfred L. Brophy
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July 11, 2007 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Pesticides v. Organics in the Burbs

The W$J has a great article on growing conflicts between neighbors over pesticide use for lawncare.  Some excerpts:

As the organic lawn movement grows, so are tensions in some communities. The latest front is over whether lawn-care methods are the horticultural equivalent of secondhand smoke: a choice that affects the whole community. Neighborhood activists argue that using pesticides on one lawn exposes everyone nearby to the chemicals, including kids and pets. . . .

To try to make everyone happy, In Harmony Sustainable Landscapes in Bothell, Wash., offers three tiers of weed programs: "No Weeds," "Minimum Pesticides," and "Completely Organic." When new customers call up, co-owner Mark Gile says he subtly encourages the latter two programs.

Community peer pressure is one thing. It's another to mandate organic care by law. In 2001, Canada's Supreme Court ruled that the nation's communities can restrict cosmetic pesticide use on private as well as public property. To date, more than 129 have done so.

That ruling mobilized the U.S. pro-pesticide movement like never before both on a grassroots and legislative levels, says Allen James, president of the Responsible Industry for a Sound Environment, a trade group representing makers and suppliers of pesticides and fertilizers. "Canada was the warning shot for us," he says.

Partly due to RISE's efforts, today all but nine states currently forbid local lawmakers from enacting such residential bans, because it would pre-empt state laws.

As a result, organic activists to date have instead concentrated on getting pesticides banned in public properties where municipalities have control. Just last month, Connecticut extended a ban on lawn pesticides through the eighth grade. Currently at least 20 U.S. towns have pesticide-free parks and several hundred school districts have laws or policies designed to minimize kids' exposure to pesticides.

Such actions unnerve homeowners such as John Schmaltz in Cromwell, Conn., who fears private property could be next. He sees a hypocritical undercurrent to organic lawn enthusiasts' pleas. "People put on deodorant, perfume and cosmetics, and who's to say about those?"

Ben Barros

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July 11, 2007 in Land Use | Permalink | Comments (0) | TrackBack (0)

Pierre and Stephenson on Katrina and FEMA

John K. Pierre and Gail S. Stephenson (both of Southern University Law Center) have posted After Katrina: A Critical Look at FEMA's Failure to Provide Housing for Victims of Natural Disasters on SSRN.  Here's the abstract:

Disasters affect low-income victims more negatively than middle- or upper-class victims, and Hurricane Katrina was no exception. Hundred of thousands of people, many of them low-to-moderate income residents, were forced to evacuate their homes following Katrina. The Robert T. Stafford Disaster Relief and Emergency Assistance Act guarantees that disaster victims will receive help through the Federal Emergency Management Agency (FEMA). FEMA, however, failed to ensure that the disaster housing needs of Katrina's victims were met, just as it has failed to adequately meet the needs of disaster victims for the last two decades.

This article reviews the impact of disasters on victims, particularly low-income victims whose homes are destroyed or rendered uninhabitable or inaccessible as a result of a disaster, when the federal government fails to carry out its statutorily mandated duty toward those victims. The article further analyzes the issues that may arise when lawyers attempt to seek legal redress against FEMA on behalf of those made homeless by disasters in the United States and suggests changes that could be implemented by the federal government to prevent a recurrence of such failures in the future.

Ben Barros

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July 11, 2007 in New Orleans, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Been et al. on the Impact of Supportive Housing

Vicki Been, Ingrid Gould Ellen, Michael Gedal, and Ioan Voicu (all of NYU) have posted The Impact of Supportive Housing on Surrounding Neighborhoods on SSRN.  Here's the abstract:

Communities across New York City and around the nation commonly oppose proposals to open supportive housing in their neighborhoods because of fear that the housing will decrease the quality of life in the neighborhood, and lead to reductions in property values. This study aims to give supportive housing providers and local government officials the objective, credible information they need to guide policy decisions and to respond to opponents' fears and arguments. Using a difference-in-difference regression model to isolate the effect of supportive housing from more general macro and micro market trends and neighborhood variations, this paper examines the impact that almost 14,000 units of supportive housing created in New York City over the past twenty five years have had on their host neighborhoods over time.

In a preliminary analysis, we find little evidence that supportive housing facilities diminish the value of surrounding properties. We find evidence that prices of properties surrounding supportive housing facilities are lower than comparable properties in the same neighborhood prior to the opening of the facility, and that this gap tends to narrow following the opening of a facility. Specifically, the preliminary analysis suggests that modestly-sized supportive housing developments (which are typical in New York City) may have small, positive impacts on neighboring property values, though these positive impacts decline as project size increases. Very large facilities may have negative impacts on the surrounding neighborhood.

Ben Barros

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July 11, 2007 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)