Friday, March 7, 2008

Johnson on Zoning and Sex Offenders

Asmara T. Johnson (Thurgood Marshall School of Law) has posted In the Zone: Sex Offenders and the Ten Percent Solutions on SSRN. Here's the abstract:

This Article challenges prevailing judicial orthodoxy that many sex offender residency restrictions are constitutional under the federal Ex Post Facto Clause. The paper applies the analytical framework in Smith v. Doe, the Court's most recent case involving sex offender legislation. It also forges a new way of thinking about these regimes as land-use policies that "negatively" zone individuals out of the urban cores. The paper proposes an innovative "positive" zoning scheme, the Sex Offender Containment Zone, that zones high-risk convicted sex offenders back into the city and that is effective, humane, and constitutional.

At first glance, sex offender residency restrictions appear plausible because they ostensibly place a convicted sex offender's residence out of reach of children. However, these regimes address less than 10% of the very real problem of child sex abuse, as over 90% of this abuse is committed by a family member or acquaintance of the child. On the other hand, many schemes effectively banish almost 100% of convicted sex offenders to society's literal and psychic margins, condemning many low-risk offenders who pose minimal recidivist risk to a lifetime of isolation and breeding optimal conditions for high-risk offenders to re-offend. The practical implications of this policy choice, therefore, are dangerous and real, lulling the public into a veritable false sense of security.

Ben Barros

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March 7, 2008 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 4, 2008

Property and Psychology Panel at APLS

Tomorrow I'm off to the American Psychology-Law Society Conference to take part in a panel titled A Psychological Perspective on Property Law: Current Topics and Future Directions.  The panel was put together by Jeremy Blumenthal (Syracuse).  Here's the panel abstract:

“The law can ask no better justification than the deepest instincts of man.” Although Justice Holmes’ words apply to all of legal psychology, they were written in the context of property law. Yet psychologists have largely neglected the study of property. We help remedy this situation, laying the groundwork for a mutually beneficial relationship between legal psychologists and property scholars.

The panel brings together legal academics, psychologists, and policy-makers working at the crossroads of psychology and property. After reviewing the scant empirical research taking a psychological perspective on property, we present empirical research in four areas: the psychology of “home;” intuitions about first possession and ownership; how individuals see property rights in art; and whether notions of ownership rights change simply because of how “property” is defined.

Our goal is to prompt empirical research in four broad areas with implications for property law, theory, and policy: (1) What benefits emerge from a psychological view of property law, and what questions can the law give to empirical researchers? (2) Does property law reflect lay intuitions, and does empirical research support black-letter law? (3) Are views of property and ownership innate? (4) Are those views malleable; if so, with what policy implications?

And here are the paper abstracts:

Jeremy A. Blumenthal, Psychology, Property Law, and Property Theory

Psycholegal study of property is a new and developing topic area; this paper serves as a broad introduction and overview to the field.  First, I identify the important theoretical connections between psycholegal research and property law, theory, and policy.  Next, I review the little work that has been conducted as well as some contemporary research.  Finally, I indicate several under-explored topic areas available to psycholegal scholars, and sketch what a research program taking a psychological perspective on property law might look like.  I demonstrate the close relationship between empirical psychological findings and property law/theory, and discuss the potential for more.

D. Benjamin Barros, Legal Questions for the Psychology of Home

This presentation will discuss a series of legal issues relating to homes and will connect these issues with questions about the psychology of home.  Legal scholars writing in this area have often made questionable assumptions about the psychological relationship between people and their homes.  Even in those instances where legal scholars have sought guidance from work on the psychology of home, they have been hampered by the absence of relevant literature or ambiguity in the literature that does exist.  The presentation therefore frames these issues in a manner relevant to both legal scholars and researches in the psychology of home.

Barbara A. Spellman and Frederick Schauer, Artists’ Moral Rights and the Limits of Ownership

Typically owners of objects have the right to do with them as they please.  However, the Visual Artists’ Rights Act (VARA; 1990) restricts what owners of some artwork may do with their acquisitions.  Our participants felt that it was much worse for an owner to alter a painting than a car.  How wrong participants thought altering or destroying a painting was depended on whether they agreed with the message of the painting and on how involved they were in creating artwork.  Thus, although mediated by their own predilections, people’s “moral intuitions” are consistent with the “moral rights” bestowed by VARA.

Ori Friedman, First possession: An assumption guiding inferences about ownership across the lifespan

This talk reports four experiments suggesting that people typically assume that the first person to possess an object, owns it. In two experiments, undergraduates selected first possessors over subsequent possessors when judging who owns a toy, but not when judging who likes it more. In another experiment, undergraduates selected first possessors over earlier pursuers when judging who owns an animal, consistent with the ruling in Pierson v. Post. In the final experiment, preschoolers selected first possessors when inferring ownership. Together, the findings provide evidence for an assumption that may lead intuitions about property to be consistent with property law.

Jonathan Remy Nash, Packaging Property: The Effect of Paradigmatic Framing of Property Rights

The two fundamental paradigms of property rights are the “bundle of sticks” and “discrete asset” approaches.  This Article describes an experiment to test the hypothesis that the paradigm under which property rights are framed has an effect upon whether and how much people accept interference with and regulation of those rights.  The results provide support for the proposition that that those who view property under the “discrete asset” paradigm would be less likely to part with their rights than those who subscribe to the “bundle” paradigm, and also confirm that the paradigmatic frame affects people’s perceptions of property rights.

I'm not sure how many property profs will be in attendance, but if you're there, please say hello.

Ben Barros

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March 4, 2008 in Conferences | Permalink | Comments (0) | TrackBack (0)

Lewinsohn-Zamir on More v. Less Property

Daphna Lewinsohn-Zamir (Hebrew University) has posted More Is Not Always Better than Less: An Exploration in Property Law on SSRN.  Here's the abstract:

The common intuition that more is better than less often lies at the heart of arguments regarding legal rules. It supports the belief that the right to take an extreme measure with respect to property encompasses the right to take a more moderate one. For example, scholars have claimed that since owners are free not to transfer their assets, but rather destroy or sell them before death, then they should be entitled to bequeath those assets subject to conditions. As more property is better than less, and some property better than none at all, it is better to inherit property subject to restrictions or conditions than to inherit nothing. It follows that the law should permit moderate measures, lest owners are induced to opt for extreme measures, resulting in less property to other individuals.

This Article advances the counterintuitive view that more is not always better than less. First, it shows that numerous legal rules reject the more is better than less argument, and restrict moderate measures relating to property more than extreme measures. In many cases, owners have more freedom to use property than to avoid using it, more power to destroy property than to modify or neglect it, and more liberty not to transfer property than to transfer it conditionally. Second, the Article argues that this seemingly puzzling state of affairs rests on sound normative grounds and on widely tested behavioral observations. Three justifications are advanced for greater scrutiny and intervention in the case of moderate, rather than extreme, measures regarding property rights: protecting potential property transferees, reducing the incidence of low-valuing owners, and correcting distributive errors. These rationales can serve to evaluate and critique existing rules in property law as well as in other legal spheres, such as labor law, zoning law, and contract law.

I saw Daphna present this paper at a conference last year.  Very interesting!

Ben Barros

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March 4, 2008 in Property Theory, Recent Scholarship | Permalink | Comments (1) | TrackBack (0)

Bavan on Housing Discrimination and "Color" of Voice

Meena S. Bavan (HUD) has posted Does Housing Discrimination Exist Based on the 'Color' of an Individual's Voice? on SSRN. Here's the abstract:

Does housing discrimination exist based on the "color" of an individual's voice? Linguistic profiling occurs when people make judgments over the telephone about the character of the individual with whom they are talking. This study uses a logit model regression to determine if the race of a person searching for housing has any correlation with whether he or she is able to make an appointment over the phone. The data used for this analysis come from the Housing Discrimination Study (HDS) 2000 Phase I that was sponsored by the U.S. Department of Housing and Urban Development, which measured the patterns of racial and ethnic discrimination in urban housing markets across the United States through paired testing. HDS 2000 found statistically significant evidence that unacceptable levels of housing discrimination still persist across the nation. Although it is important to note that the paired tests used to measure levels of housing discrimination in HDS 2000 are based on the physical race of the tester and not whether the tester had a linguistic speech pattern commonly associated with a specific race or ethnicity, this research finds that there is little association between race and the ability to make an appointment over the phone. It was found that the predicted probability of making an appointment to inquire about a rental or sales unit is similar across racial and ethnic groups, varying slightly around 97 percent. These results suggest that while there may be minor differences among racial groups in the ability to make an appointment over the phone to inquire about a rental or sales housing unit, none of these differences are statistically significant. Although these initial findings indicate that linguistic profiling is probably not a major factor in measuring housing discrimination, it is crucial that further research be conducted in this area to more accurately determine whether and to what extent linguistic profiling affects levels of housing discrimination.

Ben Barros

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March 4, 2008 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, March 3, 2008

Singer on Property Norms and the Construction of Externalities of Ownership

Joseph Singer of Harvard Law School has posted How Property Norms Construct the Externalities of Ownership on ssrn.  Professor Singer's abstract reads:

The relation between property and sovereignty is a contested one. Traditional norms identify the protection of both persons and property as two of the core functions of government. However, these twin goals come into conflict when the existence or exercise of a property right results in harm to others. Yet it can be argued that recognition of any property right necessarily harms others by excluding them from resources they may need for human life. How then do we determine when an exercise of ownership is legitimately viewed as a "self-regarding act" that does not affect the legitimate interests of others (and thus does not involve any negative externalities) and when such an exercise does harm others and thus comes within the legitimate sphere of government regulation? Property norms help answer this question by orienting us in a moral universe through background understandings that define legitimate interests that deserve legal protection. Norms orient us, first, by telling us who is an "owner" and who is a "non-owner" with regard to any particular entitlement in a particular resource, and second, by telling owners when they are obligated to take into account the effects of their actions on others and when they are entitled to think of their own interests alone. In so doing, property norms define which externalities we as a society must pay attention to, worry about, and seek (if possible) to prevent.

Mighty interesting and important stuff, on which I hope to have some comments at some point.

Al Brophy

March 3, 2008 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Weiser and Hatfield on Property in Spectrum

Phil Weiser and Dale N. Hatfield (Univ. of Colorado) have posted Spectrum Policy Reform and the Next Frontier of Property Rights on SSRN.  Here's the abstract:

The scarcity of wireless spectrum reflects a costly failure of regulation. In practice, large swaths of spectrum are vastly underused or used for low value activities, but the regulatory system prevents innovative users from gaining access to such spectrum through marketplace transactions. In calling for the propertyzing of swaths of spectrum as a replacement for the current command-and-control system, many scholars have wrongfully assumed the simplicity of how such a regime would work in practice. In short, many scholars suggest that spectrum property rights can easily borrow key principles from trespass law, reasoning that since property rights work well for land, they can work well for spectrum rights as well. But as we explain, spectrum is not the same as land, and a poorly designed property rights regime for spectrum might even be worse than the legacy model of spectrum regulation.

This Article addresses three central questions that confront the design and implementation of property rights in spectrum. First, it suggests how policymakers must develop a set of rights and remedies around spectrum property rights that reflect the fact that radio signals defy boundaries and can propagate in unpredictable ways. In particular, if policymakers simply created rights in spectrum and enforced them like rights in land (i.e., with injunctions for trespass), they would invite strategic behavior: spectrum speculators would buy licenses for the sole purpose of suing other licensees when their transmission systems created interference outside the permissible boundary (i.e., act as spectrum trolls). Second, it rejects the suggestion that policymakers establish a unitary property right for spectrum, arguing that policymakers should zone the spectrum by establishing different levels of protection against interference (i.e., an ability to transmit signals with more latitude) in different frequency bands. Finally, this Article discusses what institutional strategy will best facilitate the development of the property right and its enforcement, concluding that an administrative agency - be it a new one or a reformed FCC - is better positioned than a court to develop and enforce the rules governing the use of spectrum so as to facilitate technological progress and prevent parties with antiquated equipment from objecting to more efficient uses of spectrum.

Ben Barros

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March 3, 2008 in Intellectual Property, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)