Friday, June 6, 2008

Demsetz on Frischmann and Toward a Theory of Property Rights

The newest issue of the Review of Law and Economics includes an essay by Harold Demsetz (UCLA) titled Frischmann’s View of “Toward a Theory of Property Rights”.  Here's the abstract:

In this brief article, Professor Harold Demsetz defends his seminal paper "Toward a Theory of Property Rights" against the most recent critique to his theory made by Brett Frischmann in “Evaluating the Demsetzian Trend in Copyright Law” (Review of Law and Economics, 2007).

Ben Barros

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June 6, 2008 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, June 5, 2008

Ostrow on Judicial Review and RLUIPA

Ashira Ostrow (Hofstra) has posted Judicial Review of Local Land Use Decisions: Lessons from RLUIPA on SSRN.  Here's the abstract:

This Article questions whether traditional judicial deference to local land use regulators is justified in light of the highly discretionary, and often corrupt, system of modern land use regulation. In 2000, Congress determined that unlike other forms of economic legislation, land use regulation lacks objective, generally applicable standards, leaving zoning officials with unlimited discretion in granting or denying land use applications. Congress further concluded that this unlimited discretion lends itself to religious discrimination. Congress therefore enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA), which requires courts to strictly scrutinize land use decisions that impact religious land users.

Since its passage, the constitutionality of RLUIPA has been extensively debated. Many scholars maintain that RLUIPA is an overly broad exemption that creates a privileged class of land users and allows religious institutions to avoid a community's reasonable land use concerns. In contrast, this Article argues that Congress, through RLUIPA, identified a global flaw in land use regulation which impacts all land users, but limited its remedy to religious land users. While RLUIPA's strict scrutiny review is clearly inappropriate for land use cases that involve neither fundamental rights nor suspect classes, traditional judicial deference is equally inappropriate in light of the discretionary nature of modern zoning. Fortunately, the Supreme Court established the appropriate standard of review in its earliest zoning cases. Thus, this Article maintains that RLUIPA is significant because it highlights a global flaw in local land use and because its bifurcated approach to judicial review of zoning decisions revives an early facial/as-applied dichotomy in land use jurisprudence and encourages more meaningful judicial review of all as-applied land use decisions.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

June 5, 2008 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 3, 2008

Albany Seeking PropertyProf

ALBANY LAW SCHOOL invites applications for three or more tenure-track positions beginning in the fall of 2009. Appointment will be made at the assistant, associate or full professor level, depending on experience. While exceptionally talented applicants will be considered regardless of specialty, we are particularly interested in faculty with expertise in one or more of the following areas: PROPERTY, trusts and estates, environmental law, tax, or commercial law (UCC). Candidates must demonstrate: 1) a record of strong academic performance; 2) a record of, or potential for, excellent scholarly publication; and 3) a record of, or potential for teaching in accordance with Best Practices for Legal Education.  Women and members of minority groups and others whose backgrounds and experience will contribute to the diversity of the faculty are especially encouraged to apply.

ALBANY LAW SCHOOL is a small, independent private school in New York State's capital. Established in 1851, it is the oldest independent law school in the nation and the oldest law school in New York. The student-faculty ratio is 14 to1, and the School offers students an innovative, rigorous curriculum taught by a committed faculty. With 48% of the entering class from out of state, the School has a growing national reputation as a small, selective institution committed to academic excellence. You can learn more about the school by visiting our website:

Application (electronic preferred) should include cover letter, resume, and a list of publications and be sent to Faculty Recruitment Committee c/o Barbara Jordan-Smith, Dean's Office, Albany Law School, 80 New Scotland Ave., Albany, NY 12208-3494,

Ben Barros

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June 3, 2008 in Help Wanted | Permalink | Comments (0) | TrackBack (0)

Monday, June 2, 2008

Penalver on Land Virtues

Eduardo M. Penalver (Cornell) has posted Land Virtues on SSRN. Here's the abstract:

This article has two goals. First, I explore some of the descriptive and normative shortcomings of traditional law and economics discussions of the ownership and use of land. These market-centered approaches struggle in different ways with features of land that distinguish it from other commodities. The complexity of land - its intrinsic complexity, but even more importantly the complex ways in which human beings interact with it - undermines the notion that owners will focus on a single value, such as wealth, in making decisions about their land. Adding to the equation land's memory, by which I mean the combined impact of the durability of land uses and the finite quantity of land, calls into question the normative assessment that owners whose behavior is guided by a unitary measure like market value are using their land wisely, or at least more wisely than other modes of decision-making might hope to accomplish. The shortcomings of traditional law and economics theories of land use point toward the benefits of a pluralist theory of property based on the Aristotelian tradition of virtue ethics. Setting forth the broad outlines of such a theory as it applies to the law of land use is the second goal of this article. Virtue theory, I will argue, is capable of incorporating the valuable insights that have made economic analysis so appealing to land use theorists without distorting our moral vision or treating economic consequences as the only considerations that ought to matter.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

June 2, 2008 in Land Use, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

McLaughlin on Condeming Conservation Easements

Nancy A. McLaughlin (Utah) has posted Condemning Conservation Easements: Protecting the Public Interest and Investment in Conservation on SSRN. Here's the abstract:

The public is investing substantial financial and other resources in conservation easements and the conservation and historic values they protect. Yet little has been written about who should be entitled to what when land encumbered by a conservation easement is condemned in whole or in part. This Article explores these issues. It first demonstrates that conservation easements should constitute a compensable form of property for purposes of the Takings Clause of the Fifth Amendment. Then, using well-settled eminent domain valuation principles, it describes how just compensation should be calculated and apportioned between the holder of a conservation easement and the owner of the encumbered land upon the taking of all or any portion of the encumbered land. The Article explains that paying the economic value attributable to a conservation easement upon its condemnation to the owner of the encumbered land would confer an undue windfall benefit on the owner at the public's expense. The Article also explains that allowing condemning authorities to take easement-encumbered land without paying for the easement would have the perverse and counterproductive effect of making land protected for its conservation or historic values cheaper to condemn than similar unprotected land.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

June 2, 2008 in Land Use, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)