PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

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Thursday, February 1, 2007

Property Pedagogy

Jeremy de Beer at the University of Ottawa is working on an article on property pedagogy, and is looking for material on the subject.  If you know of any good sources, please leave a comment.

Ben Barros

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

Wednesday, January 31, 2007

Volokh on Property Rights in Medieval Europe

Alexander Volokh (Georgetown University Law Center) has posted Property Rights and Contract Form in Medieval Europe on SSRN.  Here's the abstract:

Throughout western Europe, beginning about 1200, leasing of feudal lords' estates became more common relative to direct management. In England, however, direct management increased beginning around the same time and until the fourteenth century, and leasing increased thereafter.

This article models the lord-peasant relationship as a game where contract form is chosen as the result of a tradeoff between incentives for high effort and excessive risk-bearing. Leasing increases as peasants' living standards improve. As for England, the increase in direct management can be explained by property law innovations that increased the security of freehold tenure, and the increase in leasing can be explained not only by improving living standards but also by increasing security of leasehold tenure. This model also explains why small landowners are more likely to manage their land directly, and why large landowners are more likely to lease their small estates than their large ones.

Ben Barros

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January 31, 2007 in Property Theory, Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Garnett on Planning as Public Use

Nicole Stelle Garnett (Notre Dame Law School) has posted Planning as Public Use? on SSRN.  Here's the abstract:

This short Essay explores the Supreme Court's suggestion in Kelo v. New London that public, participatory planning may be a constitutional safe harbor that separates impermissible "private" takings from presumptively valid "public" ones. After briefly reviewing the Court's discussion of the planning that preceded the Kelo litigation, the Essay examines how Kelo's emphasis on planning departs from standard rational basis review of economic policies and asks what such a departure means for future public-use litigants. The Essay then explores three possible practical benefits of a constitutional rule that encourages the government to engage in detailed planning before exercising the power of eminent domain: First, can public, participatory planning help legitimize so-called "economic-development takings"? Second, was the Court correct to assume that planning will limit pretextual takings, i.e., the taking of private property in the name of economic development but for the true purpose of benefiting a private individual? And third, will careful planning by the government lead to more successful projects?

Ben Barros

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January 31, 2007 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Gardiner et al. on Dual Agency

J'Noel Gardiner, Jeffrey Heisler, Jarl G. Kallberg, and Crocker H. Liu (NYU) have posted The Impact of Dual Agency on SSRN.  Here's the abstract:

In 1984, the State of Hawaii's legislature enacted a law making it mandatory for real estate agents engaged in dual agency relationships (i.e., when the seller's and the buyer's agents are employed by the same real estate firm) to disclose this fact to both parties in writing. The assumption was that the dual agency relation was damaging to the seller. This study analyzes the effect of disclosed and undisclosed dual agency, and the impact of the legislation, using data prior to and after the legislation (approximately 2,000 residential sales in each period). To account for property characteristics, hedonic models for the log of sale price and for the log of days on market are estimated in each period. Our empirical analysis suggests that dual agency significantly reduced the sale price, but the influence was much smaller after the legislation (8.0% versus 1.4%). In addition, dual agency significantly decreased the time on market by approximately 8.5% pre-legislation and 8.1% post-legislation, although the influence was much stronger for lower priced residences. These results are confirmed using a seemingly unrelated regression model.

Ben Barros

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January 31, 2007 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 30, 2007

Son's Gametes Passing Intestate to Parents

CNN reports that the family of an Israeli soldier who was killed in action and died intestate can have his sperm impregnated into a surrogate:

In a precedent-setting decision, an Israeli court has ruled that a dead soldier's family can have his sperm impregnated into the body of a woman he never met.

Keivan Cohen, 20, was shot dead in 2002 by a Palestinian sniper in the Gaza Strip. He was single and left no will. But at the urging of his parents, a sample of his sperm was taken two hours after his death and has been stored in a hospital since.

When the family tried to gain access to the sperm, however, the hospital refused, on the ground that only a spouse could make such a request.

Arguing that their son yearned to raise a family, his parents challenged that decision in court. On January 15, after a four-year legal battle, a Tel Aviv court granted the family's wish and ruled the sperm could be injected into a woman selected by Cohen's family.

. . . Irit Rosenblum, a family rights advocate who represented the Cohen family, said the ruling was significant because it set a precedent for those seeking to continue bloodlines after death.

At the trial, Rosenblum presented testimony, including video recordings, in which Cohen expressed his desire to have children.

"He always said he wanted children," she told The Associated Press. "But there were no regulations in the law that deals with using sperm from dead people."

Rosenblum said soldiers increasingly have been leaving sperm samples, or explicit instructions on post-mortem extraction, before heading to battle.

She said she knew of more than 100 cases of Israeli soldiers who, before last summer's war with Lebanese guerillas, asked to have their sperm saved if they were killed. American soldiers have also begun donating sperm before heading to Iraq, she said.

I'll try to get a link to the decision itself.

Ben Barros

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January 30, 2007 in Property Theory | Permalink | Comments (0) | TrackBack (0)

Monday, January 29, 2007

Miceli, Pancak, and Sirmans on Broker Compensation

Thomas J. Miceli, Katherine A. Pancak, and C.F. Sirmans (University of Connecticut) have posted Is the Compensation Model for Real Estate Brokers Obsolete? on SSRN. Here's the abstract:

This study examines the traditional compensation model for real estate brokers under which both the listing and buyer brokers are paid by the seller based on a percentage of the property sales price. We argue that this model has not evolved to reflect contemporary legal agency relationships and technology-driven information availability. It therefore creates substantial transactional inefficiencies for buyers and sellers at both the matching and bargaining stages of a transaction. While there is evidence that market forces are pushing for a change in the status quo, there is also evidence that the brokerage industry is resisting this change by pursuing anti-competitive policies and laws. We explore the economics of the current and alternative compensation structures and suggest policy implications regarding anti-competitive behavior in the brokerage industry.

Ben Barros

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January 29, 2007 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (1)

Fort on Equity and Federal Indian Law

Kathryn Fort (Michigan State) has posted The (In)Equities of Federal Indian Law on SSRN. Here's the abstract:

In 2005, the Supreme Court used the equitable defenses of laches, acquiescence and impossibility to dismiss the Oneida Indian Nation's request to remove its land from city tax roles. Later cases have extended the use of these defenses into other New York land claims. This article traces the historical origins of these three defenses, the origins of equity in England and the United States and provides some suggestions to Indian law practitioners bringing either land claims or treaty rights cases.

Ben Barros

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January 29, 2007 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Stern on Dynamics of Disclosure

Stephanie Stern (Loyola Chicago) has posted Temporal Dynamics of Disclosure: The Example of Residential Real Estate Conveyancing on SSRN.  Here's the abstract:

Traditional legal approaches to consumer disclosure focus on content, comprehensibility, or compliance, with little attention to the timing and delivery of disclosure. Psychological research indicates that latecoming information has a significantly reduced impact on price negotiation and decision making. Individuals tend to persist in decisions once they have made an overt commitment to a course of action, and expenditures of time, effort, or money exacerbate this tendency. This Article uses the example of residential real estate defect disclosure to examine the effects of disclosure statutes that allow information to be provided midstream or late in a transaction. The majority of state laws require residential real estate defect disclosure following the buyer's offer or prior to the closing. Buyers are more likely to negotiate suboptimal discounts in response to latecoming defect information and to persist in transactions. This Article considers options for modifying state statutes to ensure early disclosure, such as requiring disclosure prior to the offer or at the outset of the buyer's search process.

Ben Barros

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January 29, 2007 in Property Theory, Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Fennell on Property and Half-Torts

Lee Anne Fennell (University of Illinois) has posted Property and Half-Torts on SSRN.  Here's the abstract:

The idea that a tort can be split analytically into two parts – risk and harm – underlies a great deal of torts scholarship. Yet the notion has been all but ignored by property scholars employing Calabresi and Melamed's famous entitlement framework. Thus, in discussing an "entitlement to pollute," scholars rarely distinguish inputs to pollution (a factory's emission of fumes from a smokestack) from outcomes of pollution (a neighbor's grimy linens or respiratory distress). Instead, "pollution" is viewed as a single unified event that one party or the other receives an entitlement to control. This failure to conceptually separate risky inputs from harmful outcomes has led to imprecise and inaccurate ways of thinking and talking about entitlements. Property theory has suffered as a result, as has our understanding of how property and torts relate to each other. In this paper, I make a start at bringing the concept of the divided tort – here termed "half-torts" – into the property picture. Doing so generates a reformulated entitlement framework that fits more comfortably with moral intuitions, highlights the potential roles of luck and self-help in producing outcomes, and clarifies the available menu of alternatives for addressing property conflicts. The approach taken here advances a functional view of property as a container designed to collect inputs and outcomes with some regularity.

Ben Barros

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January 29, 2007 in Property Theory | Permalink | Comments (0) | TrackBack (0)