Friday, September 28, 2007

Sterk on Uncertainty About Property Rights

Stewart E. Sterk (Cardozo) has posted Property Rules, Liability Rules, and Uncertainty About Property Rights on SSRN.  Here's the abstract:

Clarity can be a considerable virtue in property rights. But even when property rights are defined clearly in the abstract, ascertaining the scope of those rights in concrete situations often entails significant cost. In some instances, the cost of acquiring information about the scope of property rights will exceed the social value of that information. In those circumstances, further search for information about the scope of rights is inefficient; the social harm avoided by further search does not justify the costs of the search.

Potential resource users, however, make decisions based on private costs and benefits, not social costs and benefits. Legal rules can create incentives to search for information even when the search would be inefficient. In particular, "property rule" protection often gives leverage to right holders disproportionate to the harm those right holders would suffer from intrusion on their rights. That leverage, in turn, gives potential resource users private incentives to expend time and money on search even when search will generate minimal social benefit. "Liability rule" protection, by contrast, limits incentives to conduct inefficient search for the scope of property rights.

Property doctrine reflects this insight in a number of contexts. Thus, high search costs can explain the unwillingness of courts to award injunctive relief in cases of “innocent” boundary encroachments, as well as the Supreme Court's recent limitations on the routine award of injunctive relief in patent and copyright cases.

Ben Barros

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September 28, 2007 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, September 27, 2007

Defeasible Estates in the News!

A school renovation project was put in jeopardy when 100-year old deeds surfaced showing that part of the relevant property had been granted for school playground purposes only, otherwise to revert to grantor's family.  The best quote, from the counsel for the title insurance company that didn't find the deeds and ended up on the hook:  "I would have to say, in my 30 years in this business, this is the first time I've seen a right of reverter anywhere but in a law school exam."

Ben Barros

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September 27, 2007 in Estates In Land, Future Interests and the RAP, Real Estate Transactions, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 26, 2007

Inclusionary Housing

John Nolan and Jessica Bacher have an article on-line about inclusionary housing policies.  Here's the description:

This article explores the expansive legal authority that local governments in many states have to meet housing needs directly by providing for the production of new affordable homes. There is not a great deal of scholarship on the subject as we approach it. The emphasis in the academic literature in the field of affordable housing is on top down, systemic, or theoretical solutions: urging reforms in federal and state finance programs, imploring courts to penalize localities that engage in exclusionary zoning, describing in detail a variety of inclusionary zoning techniques; or explaining relevant theories or the economics of the issue of affordable housing. 

Our topic focuses instead on what individual municipalities can do to bridge the widening gap between income and housing costs. Like the impacts of climate change, which many municipalities are beginning to address, the housing crisis is, in the first instance, a local phenomenon; it fails to provide for local workers, prejudices the local economy, forces out seniors, and is beyond the reach of young families—the workers in local businesses and the moms, dads, daughters, and sons of local residents.  Our article illustrates a full range of tools and strategies that the law and established practice place in the hands of local citizens and their elected officials to meet local housing needs. The information contained in this article gives them something to do while waiting for systemic, top down, and more theoretical solutions to work.

We describe a “local inclusionary housing program” and outline ten steps that local governments and leaders can take to create and implement such a program.  These steps include:

    1. conducting a survey of housing needs within the locality and its immediate region;
    2. creating a citizens’ task force of leaders committed to meeting these housing needs;
    3. establishing an advisory board of landowners and developers to help design economically and politically workable strategies;
    4. adopting a housing component of the local comprehensive plan that contains a strategy for meeting defined housing needs;
    5. adopting one or more of a variety of inclusionary zoning techniques;
    6. identifying land and buildings that can be dedicated to affordable housing projects;
    7. creating a local non-profit housing corporation whose corporate objective is the implementation of the local housing strategy;
    8. providing financial incentives directly to projects that meet housing needs;
    9. using a variety of outside public and private financial techniques; and
    10. adopting local housing regulations that ensure the success and continued affordability of all housing produced under the inclusionary housing program.

This approach to meeting housing needs turns the traditional approach to solving the nation’s housing crisis on its head.  While recognizing limitations in local capacity, it does not regard local governments as parochial and exclusionary obstacles to the accomplishment of federal, state, or judicial housing goals.  Instead, it is based on respect for local land use traditions, the existence of extensive municipal legal authority to solve local problems, and recognition of the great diversity of local circumstance. 

The article ends with a modest proposal for a state housing law that provides adequate legal authority for inclusionary housing initiatives and assists and rewards localities that commit themselves to using that authority effectively. 

Ben Barros

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September 26, 2007 in Land Use | Permalink | Comments (1) | TrackBack (0)

Tuesday, September 25, 2007

Kushner on Urban Planning and the American Family

James Alan Kushner (Southwestern Law School) has posted Urban Planning and the American Family on SSRN.  Here's the abstract:

American urban design is anti-family, generating unhealthy and unsafe communities and lifestyles. Although taxation schemes, zoning codes, and comprehensive planning requires an overhaul to become sustainable and healthy, the very design of neighborhoods must be altered to support families and children.

Ben Barros

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September 25, 2007 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Brophy, New Media Rock Star

Al is featured in this week's Law Talk, a podcast series being done by Nate Oman.  Al discusses issues related to universities with links to slavery.  Check it out!

Ben Barros

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September 25, 2007 in About This Blog | Permalink | Comments (0) | TrackBack (0)

Monday, September 24, 2007

Barros on Group Size and Heterogeneity in the Design of Legal Structures

I've placed a new essay, called Group Size, Heterogeneity, and Prosocial Behavior: Designing Legal Structures to Facilitate Cooperation in a Diverse Society, on SSRN.  Here's the abstract:

Recent social science research has found that in many scenarios, increases in group size and diversity have a negative impact on cooperation and other prosocial behavior. A related study by the political scientist Robert Putnam has created a firestorm of debate within the past few months about the negative effects of diversity on the social fabric.

This essay addresses a subset of this larger debate. It looks to recent social science research to explore how and why group size and diversity impact cooperation and other prosocial behaviors. It then considers how to take the results of this research into account in designing legal structures, either by placing people into contexts that foster cooperation or by taking affirmative steps to mitigate the negative impacts of increases in group size or diversity. Increases of group size and diversity tend to undercut the informal mechanisms that communities use to encourage cooperation, and in many circumstances these mechanisms can be replaced by legal structures. To illustrate the potential for using the design of legal structures to encourage prosocial behavior, the essay draws on examples including residential community organizations, the management of natural resources, corporate boards, and the private microlending groups organized by the Nobel-Peace-Prize-winning Grameen Bank.

Comments would be very welcome!  If nothing else, the essay has the virtue of being short.

Ben Barros

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September 24, 2007 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, September 23, 2007

Balganesh on the Right to Exclude

Shyamkrishna Balganesh (University of Chicago) has posted Demystifying the Right to Exclude: Of Property, Inviolability, and Automatic Injunctions on SSRN.  Here's the abstract:

The right to exclude has for long been considered a central component of property. In focusing on the element of exclusion, courts and scholars have paid little attention to what it means for an owner to have a 'right' to exclude and the forms in which this right might manifest itself in actual property practice. For some time now, the right to exclude has come to be understood as nothing but an entitlement to injunctive relief - that whenever an owner successfully establishes title and an interference with the same, an injunction will automatically follow. This view attributes to the right a distinctively consequentialist meaning, calling into question the salience of property outside of its enforcement context. Yet, in its recent decision in eBay, Inc. v. MercExchange, LLC, the Supreme Court rejected this interpretation, declaring unequivocally that the right to exclude did not mean a right to an injunction. This Article argues that eBay's negative declaration serves to shed light on what the right has really meant all along - as the correlative of a duty imposed on non-owners (i.e., the world at large) to keep away from an ownable resource. This duty (of exclusion) in turn derives from the norm of inviolability, a defining feature of social existence and accounts for the primacy of the right to exclude in property discourses. This understanding is at once both non-consequentialist and of deep functional relevance to the institution of property.

Ben Barros

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September 23, 2007 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)