Friday, March 28, 2008

Merrill to Yale

Brian Leiter is reporting that Tom Merrill is moving from Columbia to Yale, joining his frequent collaborator Henry Smith.

Ben Barros

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March 28, 2008 in Teaching | Permalink | Comments (0) | TrackBack (0)

Thursday, March 27, 2008

More on What Virtual Property Can Do For Property: The Problem of Analogy

In my string of posts, I'm trying to explain how the study of virtual property can clarify our thinking about property generally and intangible rights in particular. In my last post, I explained some of the analytical problems in designating "intangible" as a property category. Here, I'll explain some problems with another analytical path that some courts follow in trying to fashion rules for intangible rights.

If you look at the bottom of that last post, you'll see that it's in the "Intellectual Property" category. Ben and I put the first post there because there wasn't a "Virtual Property" category two weeks ago, so we agreed that "Intellectual Property" was good enough. Why was it good enough? For one thing, I am discussing some IP. Eros v. Simon, the sex bed case, IS an intellectual property case.

But we also decided it was good enough because we analogized virtual property to intangible rights that we know already, and when many lawyers think of intangible rights, they think of intellectual property. Courts, of course, do the same, and sometimes reach results that are not very helpful, or worse, do not make much sense.

Another domain name case, Dorer v. Arel, 60 F. Supp. 2d 558 (E.D. Va. 1999) illustrates the problem of characterizing all intangible rights as intellectual property. Dorer was a creditors' rights case in which a judgment creditor wanted reach the domain name by garnishment. Under the applicable statute, only a property right could be garnished. So the court looked to one body of intellectual property law, trademark law, and concluded that a domain name that was eligible for trademark protection was property and thus garnishable, while a domain name not eligible for trademark protection was not property and therefore not garnishable.

Here's the problem. A domain name that is eligible for trademark protection can't be transferred without the goodwill of the business to which it is attached, and as a result, is not of much value to creditors. A generic domain name, on the other hand, is not eligible for trademark protection, but can be VERY valuable to a creditor because it can be transferred for lots of money.

So again, here's where the virtual world cases can help out. Virtual world disputes mirror disputes in the tangible world. People complain when they're denied use of their assets (Bragg v. Linden Research) and they complain when someone steals their designs (Eros v. Simon). The disputes are different from tangible world disputes in a way that should not be important -- they ALL involve intangible assets. Virtual world disputes can teach us to put tangibility aside and concentrate on other aspects of property rights.

Juliet Moringiello

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March 27, 2008 in Virtual Property | Permalink | Comments (1) | TrackBack (0)

Wednesday, March 26, 2008

Schwarcz on Disclosure and the Subprime Crisis

Steven L. Schwarcz (Duke) has posted Disclosure's Failure in the Subprime Mortgage Crisis on SSRN.  Here's the abstract:

This symposium article examines how disclosure, the regulatory focus of the federal securities laws, has failed to achieve transparency in the subprime mortgage crisis and what this failure means for modern financial securities markets.

Ben Barros

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March 26, 2008 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Border Fence Eminent Domain Issues

A number of disputes have arisen in Texas about the use of eminent domain to take property surrunding the new border fence.  The judge on some of the cases recently ordered the government to negotiate over price with the property owners:

A federal judge has ruled that the government must first try to negotiate a price with a South Texas landowner before seizing her property for the border fence.

The ruling by U.S. District Judge Andrew Hanen late Friday came a month after federal prosecutors argued that immediate access to property was necessary to getting 370 miles of fencing built by December.

Under the ruling, the Department of Homeland Security must provide proof of bargaining with landowner Eloisa Tamez or conduct "good faith" negotiations with her by March 21.

I'm not sure one way or the other about whether the judge's order is justified under the applicable statute, but I've been a big fan of forcing the government to negotiate in good faith before using eminent domain.

Ben Barros

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March 26, 2008 in Takings | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 25, 2008

Buying Peace and Quiet in Yellowstone

The New York Times has an editorial.

Alfred Brophy

March 25, 2008 | Permalink | TrackBack (0)

Tate on Testamentary Freedom

Joshua C. Tate (SMU) has posted Caregiving and the Case for Testamentary Freedom on SSRN.  Here's the abstract:

Almost all U.S. states allow individuals to disinherit their descendants for any reason or no reason, but most of the world's legal systems currently do not. This Article contends that broad freedom of testation is defensible because it allows elderly people to reward family members who are caregivers. The Article explores the common-law origins of freedom of testation, which developed in the shadow of the medieval rule of primogeniture, a doctrine of no contemporary relevance. The growing problem of eldercare, however, offers a justification for the twenty-first century. Increases in life expectancy have led to a sharp rise in the number of older individuals who require long-term care, and some children and grandchildren are bearing more of the caregiving burden than others. Recent econometric studies, not yet taken into account in legal scholarship, suggest a tendency among the American elderly to bequeath more property to caregiving children. A competent testator, rather than a court or legislature, is in the best position to decide how much care each person has provided and to reward caregivers accordingly. Law reform, therefore, should focus on strengthening testamentary freedom while ensuring that caregivers are adequately compensated in cases of intestacy.

Ben Barros

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March 25, 2008 in Estates In Land, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, March 24, 2008

Ruhl on Ecosystem Services and the ACF Dispute

J.B. Ruhl (Florida State) has posted Equitable Apportionment of Ecosystem Services: New Water Law for a New Water Age on SSRN.  Here's the abstract:

This article examines the interstate water controversy between Florida, Georgia, and Alabama regarding allocation of water in the Apalachicola-Chattahoochee-Flint River Basin (ACF). The three states have been unable after 20 years of negotiation to resolve conflicts between urbanization in Atlanta, commercial uses in Alabama, and ecological protection in Florida. This article proposes that, were the states to seek apportionment of water by the Supreme Court under the Court's doctrine of equitable apportionment, the ecosystem services flowing within the ACF should be an integral allocation factor in deciding the flow regime Georgia and Alabama must ensure enters the Florida portion of the ACF.

Ben Barros

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March 24, 2008 in Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Asoni on Property Rights and Economic Growth

Andrea Asoni (U. Chicago Dep't of Econ.) has posted Protection of Property Rights and Growth as Political Equilibria on SSRN.  Here's the abstract:

This paper presents a survey of the literature on property rights and economic growth. It discusses different theoretical mechanisms that relate property rights to economic development. Lack of protection of property rights can result in slow economic growth through different channels: expropriation of private wealth, corruption of civil servants, excessive taxation and barriers to adoption of new technologies. The origins of property rights are also considered. Different theories are illustrated but more attention is paid to the "social conflict view" and its strengths and limitations. The second part of the paper illustrates relevant empirical works on property rights and growth.

Ben Barros

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March 24, 2008 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)