PropertyProf Blog

Bonfield, Chused, and Tracht to New York Law School

Brian Leiter is reporting that:

In addition to Gerald Korngold from Case Western, New York Law School has also made (or recently made) tenured hires of Lloyd Bonfield (property, EU law, legal history) from Tulae University, Richard Chused (property, copyright, Cyberlaw) from Georgetown University, and Marshall Tracht (real estate transactions, bankruptcy) from Hofstra University.  All are affiliated with NYLS's Center on Real Estate Studies.  A pretty dramatic set of hires in a short period of time for New York Law School!

I agree.  Very impressive!

Ben Barros

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Colburn on Morality and Green Building

Jamison Colburn (Western New England) has posted Solidarity and Subsidiarity in a Changing Climate: Green Building as Legal and Moral Obligation on SSRN.  Here's the abstract:

This essay grew out of a symposium on Catholic social thought. It makes the case for solidarity and subsidiarity as principles of applied (secular) ethics by injecting them into what must be their most challenging context: catastrophic global climate disruption. It argues that the principles of solidarity and subsidiarity hold tremendous potential within our liberal constitutional tradition by exploring the developing trend toward "green building" in the United States. Part I describes what we know about greenhouse gases and climate disruption while Part II frames the principles of solidarity and subsidiarity. Part III explores the phenomenal growth of green building in the U.S. and the moves by many cities and towns to encourage and, in some cases, require green building within their borders. Part IV situates this context within our land use planning traditions and the coming battle for building standards in our changing climate. Finally, Part V compares building green as a moral and as a legal obligation in a world of uncertain possibilities and unintended consequences. The overall argument is that fighting for legally binding obligations at the fullest scale necessary to address problems like climate disruption before first taking more local, cooperative actions possible today probably entails prohibitive opportunity costs.

Ben Barros

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The Progressive Case for Water Markets

Jonathan Adler has an interesting post on the subject.

Ben Barros

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How Quickly We Forget

Thanks to Ann Bartow for this story ("Capitol statues switched as subjects' fame fades") about the changing of the statutes in Congress.  Each state gets two statutes, but over time the states like to change out the people they display.  According to the story:

After Congress in 1864 created the National Statuary Hall, each state was invited to bring two statues there. The states responded by sending larger-than-life likenesses of their top citizens to be placed in the Capitol.

These marble or bronze monuments include likenesses of politicians, scientists, priests, educators, women's suffrage leaders, astronauts, Indian chiefs and inventors.

But over the years, fame has evaporated for some of them -- and states have asked to replace them with others who have made a more recent mark on history.

Talk about memory and forgetting!

Alfred Brophy

Jones and Brosnan on Law, Biology, and Property

Owen D. Jones (Vanderbilt) and Sarah F. Brosnan (Georgia State) have posted Law, Biology, and Property: A New Theory of the Endowment Effect on SSRN.  Here's the abstract:

Recent work at the intersection of law and behavioral biology has suggested numerous contexts in which legal thinking could benefit by integrating knowledge from behavioral biology. In one of those contexts, behavioral biology may help to provide theoretical foundation for, and potentially increased predictive power concerning, various psychological traits relevant to law. This Article describes an experiment that explores that context.

The paradoxical psychological bias known as the endowment effect puzzles economists, skews market behavior, impedes efficient exchange of goods and rights, and thereby poses important problems for law. Although the effect is known to vary widely, there are at present no satisfying explanations for why it manifests when and how it does. Drawing on evolutionary biology, this Article provides a new theory of the endowment effect. Briefly, we hypothesize that the endowment effect is an evolved propensity of humans and, further, that the degree to which an item is evolutionarily relevant will affect the strength of the endowment effect. The theory generates a novel combination of three predictions. These are: (1) the effect is likely to be observable in many other species, including close primate relatives; (2) the prevalence of the effect in other species is likely to vary across items; and (3) the prevalence of the endowment effect will increase or decrease, respectively, with the increasing or decreasing evolutionary salience of the item in question.

The authors tested these predictions in a chimpanzee (Pan troglodytes) experiment, recently published in Current Biology. The data, further explored here, are consistent with each of the three predictions. Consequently, this theory may explain why the endowment effect exists in humans and other species. It may also help both to predict and to explain some of the variability in the effect when it does manifest. And, more broadly, the results of the experiment suggest that combining life science and social science perspectives could lead to a more coherent framework for understanding the wider variety of other cognitive heuristics and biases relevant to law.

Ben Barros

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Korngold from Case Western to New York Law School

Gerald Korngold, the McCurdy Professor of Law at Case Western, will join the faculty of New York Law School in the fall.

Ben Barros

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Morriss on State Responses to Kelo

Andrew P. Morriss (University of Illinois) has posted Symbol or Substance? An Empirical Assessment of State Responses to Kelo on SSRN.  Here's the abstract:

The Kelo decision provoked considerable legislative activity as 46 states adopted legislation on eminent domain in its aftermath. Only about half adopted restrictions that were more than symbolic, however. This paper examines those responses using a logistic regression analysis and finds that all else equal: (1) states where legislatures were more constrained by tax and expenditure limits were less likely to adopt substantive restrictions; (2) a larger number of Republicans in the state legislature made a state more likely to adopt a substantive restriction; (3) overall Republican strength (as measured by gubinatorial elections) made states less likely to adopt a substantive response, suggesting political competitiveness not ideology motivated action; (4) there was no evidence that measures of an electorate's overall ideology (with respect to environmental, liberal, or conservative causes) made a difference; (5) economically growing states were more likely to adopt substantive restrictions; and (6) greater degrees of inequality and larger African-American populations were not correlated with the type of response. Taken together, these results suggest a public choice model of legislative action, rather than an ideological one, with legislatures facing other constraints (e.g. TEL and slower growth) being less likely to give up valuable eminent domain powers and legislatures where adoption of real reform was less costly (faster growth) or more beneficial (more competitive political environments) more likely to do so.

Ben Barros

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Cemetery Law: The Reburial of Mark Rothko?

Close on the heals of the New York Times' discussion of a conflict over Thomas Jefferson's grave, (which I discussed here) we have news of a dispute over the possible exhumation and reburial of Mark Rothko.

Kathryn Shattuck's article begins:

For 38 years the body of the artist Mark Rothko has rested in an unassuming cemetery on the North Fork of Long Island, a quiet reminder of both the Abstract Expressionist legacy and one of the harshest legal battles ever to rock the art world.

Now, in a potential addendum to the history books that threatens to resurrect bitter memories of the long fight over Rothko’s estate, the artist’s daughter and son have petitioned a New York State judge to clear the way to have their father’s remains disinterred and reburied in a Jewish cemetery in Westchester County.

Endnote: Rothko's 1952 No.10 is from the National Galley's website; the painting is in the collection of the Museum of Modern Art.

Alfred Brophy

Solar Panels vs. Trees!

The New York Times this morning has a fascinating story about two neighbors, eight redwood trees, a solar panel, and - yes - a criminal prosecution for violating a statute called the Solar Shade Act.  This has it all:  a parable of first-in-time vs. solar access, failure of bargaining, nuisance and conflicts between two environmental goals, and, perhaps, the law of unintended consequences.  Great reading!

Nestor Davidson

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