Thursday, August 21, 2008

Lovett on Comparisons Between Scottish and American Land Use

John A. Lovett (Loyola New Orleans) has posted Meditations on Strathclyde: Controlling Private Land use Restrictions at the Crossroads of Legal Systems on SSRN.  Here's the abstract:

This article presents a comparative study of a pivotal case decided by the Lands Tribunal of Scotland, Strathclyde Joint Police Board v. The Elderslie Estates Ltd. The decision exemplifies how Scotland, one of the world's leading mixed jurisdictions, addresses several fundamental property law issues. Should landowners be allowed to impose restrictions on the use of land that bind future owners in perpetuity? Should courts have any power to modify or terminate those land use restrictions if the passage of time appears to undermine their initial purpose and utility? Does the application of the European Convention on Human Rights change how a court must protect fundamental property rights? This comparative case study sheds light on how Scotland has answered all these questions, reflects on the costs and benefits of its solutions, and contrasts the Scottish approach with typical approaches under American law. The Lands Tribunal's decision, the article also argues, demonstrates a powerful communitarian conception of property in Scottish law, one that has continued to surface even after the formal abolition of Scottish feudalism in 2004 and that differs substantially from the market based conception of property reigning in the United States today.

Ben Barros

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August 21, 2008 in About This Blog, Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Chang on Takings Compensation

Yun-Chien Chang (NYU) has posted A Framework of Takings Compensation Assessment on SSRN.  Here's the abstract:

The mainstream literature discusses only the design that the government assesses property value for takings compensation ex post. A few papers propose to let condemnees self-assess property value ex ante. Two other alternatives - ex ante government assessment and ex post self-assessment - have been neglected. Furthermore, previous papers usually assume that assessments are accurate, not taking into account the facts that the takings compensation condemnees receive may not equal the amount of compensation the law intends to award. The literature often assumes that assessing is costless, failing to recognize that the actual high assessment costs may render undesirable an otherwise efficient standard for takings compensation.

In this Article, I propose a framework of four prototype assessment methods for appraising takings compensation, based on who assesses and at what time. I use assessment costs and assessment accuracy to evaluate the merits of the four assessment methods. I find that, theoretically speaking, the scholarly-proposed models and the currently-implemented regimes are unlikely to produce accurate assessments, no matter which assessment method they use. These models or regimes are also not as low-cost as claimed.

Ben Barros

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August 21, 2008 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 20, 2008

I Love My Job

First day of Property today.  Pierson v. Post, Popov v. Hayashi, and Armory v. Delamirie in a 2-hour block.  This is an awesome job.  Now if I could only get someone to grade my exams . . .

Ben Barros

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August 20, 2008 in Teaching | Permalink | Comments (1) | TrackBack (0)

Mossoff on Patents as Property

Adam Mossoff (George Mason) has posted Patents as Property: Conceptualizing the Exclusive Right(s) in Patent Law on SSRN.  Here's the abstract:

The conventional wisdom is that the definition of patents as property has been long settled - patents secure only a right to exclude. In exploring the intellectual history of American patent law, this Article reveals that this claim is profoundly mistaken. For much of its history, Congress and courts defined a patent in the same conceptual terms as property in land and chattels, as securing the exclusive rights of possession, use and disposition. Nineteenth-century courts explicitly used this substantive conception of patents to create many longstanding doctrines in the American patent system, such as the conveyance default rules now known as patent exhaustion doctrine. Significantly, the Supreme Court has invoked such historical doctrine in reversing the Court of Appeals for the Federal Circuit in its many recent patent law decisions.

For this reason, the conceptual break between modern and historical patent doctrine is not simply a matter of philosophical inquiry. Today, scholars and courts believe that patents must secure only a right to exclude as a matter of logical necessity, dismissing the historical statutes and case law as confusion or dicta. Yet, they do not realize that their definition of patents as property is a uniquely modern conception, which follows directly from the legal realists' property theory in land. In identifying this intellectual history for the first time, this Article reveals how the legal realists' theoretical work concerning real property has influenced twentieth-century patent doctrine, and how this may be an under-appreciated factor contributing to the increasingly tumultuous debates over patent doctrine.

Ben Barros

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August 20, 2008 in Intellectual Property, Property Theory, Recent Scholarship, Takings | Permalink | Comments (1) | TrackBack (0)

Tuesday, August 19, 2008

Fort on Laches and Native American Land Title

Kathryn Fort (Michigan State) has posted The New Laches: Creating Title Where None Existed on SSRN.  Here's the abstract:

Tribal land claims are facing a new challenge from an old area of law. Courts have been paying special attention to the law of equity and how it can defeat tribal land claims. Specifically, the equitable defenses of laches, acquiescence, and impossibility were used by the Supreme Court to hand defeat to the Oneida Indian Nation on a tax issue. Since then, lower courts in the Second Circuit have used this precedent to deny Indian land claims. But are these three defenses based on precedent themselves? Rarely. Instead, they have been combined to create a new defense, what I will call the "new laches." This new defense, so far used successfully in Indian land cases in New York state and unsuccessfully elsewhere, has been so broadly construed by the Second Circuit that, if this view is adopted nationwide, it could apply to any treaty-based claim brought by Indians or Indian tribes.

Ben Barros

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August 19, 2008 in Recent Scholarship | Permalink | Comments (1) | TrackBack (0)

Monday, August 18, 2008

Ellickson on Government Mixed-Income Housing Subsidies

Robert C. Ellickson (Yale) has posted The Mediocrity of Government Subsidies to Mixed-Income Housing Projects on SSRN.  Here's the abstract:

Since the 1970s a new vehicle for the provision of housing assistance--the mixed-income, or inclusionary, project - has flowered in the United States. In a community of this sort, the developer and its government benefactors designate a fraction of the dwelling units, typically between 10 and 25 percent, as targets for the delivery of aid. Eligible households who successively occupy these particular units pay below-market rents, while the occupants of the other units do not. This article situates this innovation within the broader history of U.S. housing assistance policy and evaluates its merits. The central conclusion is that the mixed-income project approach, while superior to the traditional public-housing model, is in almost all contexts distinctly inferior to the provision of portable housing vouchers to needy tenants. Although prior commentators have also touted the voucher approach, the article enriches their analyses by addressing more fully the social consequences of various housing policies that might be used to economically integrate neighborhoods and buildings.

Ben Barros

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August 18, 2008 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Carpenter, Katyal and Riley In Defense of Property

Kristen A. Carpenter (Denver); Sonia Katyal (Fordham) and Angela Riley (UCLA) have posted In Defense of Property on SSRN.  Here's the abstract:

This Article advances a comprehensive theory to explain and defend the emergence of indigenous cultural property claims. In doing so, it offers a vigorous response to an emerging view, in scholarship and popular society, that it is normatively undesirable to employ property law as a means of protecting indigenous culture and ideas. In our view, cultural property critiques arise largely because of the absence of a comprehensive and countervailing theory of indigenous cultural property. To remedy this absence, this Article articulates a robust theory of indigenous property that challenges the individual rights paradigm animating current property law. Specifically, this piece makes two broad contributions to existing property theory. First, it draws on but departs significantly from Margaret Jane Radin's groundbreaking work linking property and 'personhood,' and defends cultural property claims, in contrast, within a paradigm of 'peoplehood.' Second, this piece posits that, whereas individual rights are overwhelmingly advanced by property law's dominant ownership model, the interests of peoples, particularly indigenous peoples, are more appropriately and powerfully effectuated through a theory of property characterized most aptly by stewardship.

As this Article demonstrates, our stewardship paradigm suggests a theory of property that goes far beyond the cultural property context, with implications for property law generally. By introducing a fundamental paradigm shift that locates the metaphorical bundle of rights within non-owners as well as owners, we highlight non-owners' duties and rights to tangible and intangible goods, even in the absence of title or possession. This Article draws on a wealth of literature from the corporate, environmental, and indigenous contexts to introduce an innovative framework for rethinking ownership altogether. Ultimately, our stewardship theory of property makes a significant contribution to the field, filling an existing void in property theory and adding a much-needed perspective to the ongoing debate over cultural property protections.

Ben Barros

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August 18, 2008 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)