Thursday, October 16, 2008

At the Intersection of Property and Remedies

From today's news, we hear of a Florida man who was jailed for contempt of court after he failed to abide a judge's order to take care of his lawn, as required by covenants on his property.  I might have thought everyone had a bit more productive use of their time.  But, hey, it gives us something to talk about in two of my favorite classes!

Alfred Brophy

October 16, 2008 | Permalink | Comments (0) | TrackBack (0)

Krier on the Evolution of Property Rights

James E. Krier (Michigan) has posted The Evolution of Property Rights: A Synthetic Overview on SSRN.  Here's the abstract:

In this paper I review, extend, and critique two contrasting approaches to the evolution of property rights. The legal literature on the subject is dominated by a conventional approach, which holds a virtual monopoly despite its many shortcomings, and the literature neglects an alternative approach, despite its many virtues (including, but not limited to, the virtue of responding to many of the conventional approach's deficiencies). The paper provides an overview of both approaches, including a brief intellectual history of each - and should thus inform readers without specialized knowledge of the subject but nevertheless interested in it - and aims among other things to make the alternative approach salient, in particular because an integrated treatment that draws on a combination of the two approaches does more explanatory work than can either approach on its own.

I saw Jim present an early version of this paper -- it is very interesting!

Ben Barros

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October 16, 2008 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Piccard on Residential Evictions in Florida

Ann Piccard (Stetson) has posted Residential Evictions in Florida: When the Rent is Due, Where is the Process? on SSRN.  Here's the abstract:

Florida's residential eviction statute requires that a tenant who is sued for eviction must deposit into the registry of the court any alleged past-due rent. This never happens because tenants are either ignorant of the requirement, are unable to deposit the money, or choose to simply move on. If the past-due rent is not deposited with the court, the tenant is not permitted to raise any defenses in court, meaning the landlord always wins. It is wasteful to require landlords and courts to address issues the results of which are virtually always in favor of one party. Further, the law ignores basic notions about the human need for housing. The law serves no purpose, and should be changed.

Ben Barros

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October 16, 2008 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (1) | TrackBack (0)

Monday, October 13, 2008

Singer on Property in a Free and Democratic Society

Joseph William Singer (Harvard) has posted Democratic Estates: Property Law in a Free and Democratic Society on SSRN.  Here's the abstract:

How should we think about property and property law both descriptively and normatively? This article suggests we consider this question by focusing on justifications for the estates system which limits the bundles of property rights in land that are recognized by the legal system. Thomas Merrill and Henry Smith have usefully argued that what they call the "numerus clausus" principle is justified because it lowers the information costs of property. While there is a lot to this argument, I suggest that if we look, not only at the traditional rules governing future interests but at all the statutes that regulate property and market relationships, as well as the social customs embodied in our property institutions, we can see that our legal system regulates the bundles of property rights that can be created and enforced, not only to improve efficiency, but to shape the contours of social relationships so that they comply with the norms defining a free and democratic society.

Some of those regulations attempt to prevent the negative externalities that flow from unregulated property bundles, such as the current financial crisis which appears to have been caused by the marketing of subprime, variable rate mortgages that were securitized into incomprehensible packages whose real market value hidden from purchasers who took unreasonable risks in buying them. But other laws regulating property bundles are based on norms that define our way of life, such as those that outlaw property relations characterized by feudalism, slavery, indentured servitude, or racial and religious restrictions on land ownership. Still others protect consumers by setting minimum standards for property and other market transactions.

This approach to property differs from the traditional alienability approach, the legal realist bundle of rights approach, the efficiency approach, the libertarian and liberal egalitarian approaches, and the personality, human flourishing, and virtue ethics approaches by framing descriptive and normative inquiries about property and property law by reference to the quasi-constitutional, structural role that property law plays in defining the appropriate contours of human relationships in a free and democratic society.

Ben Barros

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October 13, 2008 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Morriss on Politics and Property in Natural Resources

Andrew P. Morriss (Illinois) has posted Politics & Property in Natural Resources on SSRN.  Here's the abstract:

Modern discussions of natural resources focus on increasing public control over extractive industries proposing measures that range from increasing the public's share of the gain via royalties and taxes to regulating extractive activities to prevent environmental problems to outright expropriation of private investments. This Article argues that such efforts are counterproductive because the fundamental economic problem of natural resources is producing the knowledge necessary to locate and extract resource deposits. The public benefit comes from enabling the use of the resources and the increased economic activity their discovery produces rather than from royalties or expropriation. The key question in designing natural resource laws is thus their effects on the incentive to discover and manage resources. Private property rights in natural resources are the best way to provide such incentives. Fortunately, the combination of property rights and tort law principles (trespass and nuisance) enables property rights to solve environmental problems related to natural resource extraction as well.

Ben Barros

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

October 13, 2008 in Natural Resources, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)