PropertyProf Blog

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Univ. of Arkansas, Fayetteville

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Friday, June 19, 2009

Ellickson on Federalism, Kelo, and Epstein

Robert C. Ellickson (Yale) has posted Federalism and Kelo: A Question for Richard Epstein on SSRN.  Here's the abstract:

The irrepressible Richard Epstein has been one of the most provocative and wide-ranging of contemporary legal scholars. According to Epstein’s own account, he started out as a natural rights libertarian, but then morphed slightly into a utilitarian. Other important strands of conservative thought have not commanded his consistent allegiance. Epstein has never shown any affinity, for example, to Burkean traditionalism. Moreover, Epstein’s interest in the structural principle of federalism, which favors the centralization of power where feasible, has run hot and cold. For example, he has sharply criticized the Supreme Court’s Kelo decision that declined to rule that a locality’s misuse of the power of eminent domain violated the federal Public Use Clause. This essay criticizes the merits of the redevelopment project at issue in Kelo, but also argues, on federalist principles, that the Supreme Court of the United States was correct in that instance to decide that it should not be on the front lines of the battle against eminent domain abuse.

Ben Barros

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

June 19, 2009 | Permalink | Comments (0) | TrackBack (0)

Katz on Red Tape and Gridlock

Larissa M. Katz (Queen's University - Faculty of Law) has posted Red Tape and Gridlock on SSRN.  Here's the abstract:

This paper concerns the role of property theory in explaining why so many people around the world control their assets informally, without recourse to the state. According to one influential view, owners and their assets are driven to the informal sector because of deficiencies in the form of ownership on offer in the formal sphere. Where too many people have the power to veto the optimal use of a resource, we have a form of ownership, an anticommons, that is deficient. But this account of informality proceeds from an overly capacious theory of ownership. On this view, an owner’s position is incomplete if she lacks the requisite inputs for a project that represents the optimal use of an object. Further, a person counts as an “owner,” albeit one locked in an anticommons, merely if she has the power to block the ends that others are able to achieve with an object. I argue that this view of ownership leaves us unable to see that owners are in a radically different position vis-à-vis other owners with the same authority over an object than they are vis-à-vis the state or other non-owners who may be in a position to block an owner’s valuable ends. The integrity of the concept of the anticommons is undermined if we define it in terms of veto-power over the ends for which a resource is optimally suited.

In this paper, I situate the concept of the anticommons within a larger theory of ownership as agenda-setting authority. Seen this way, what is important about an anticommons is its effect on an owner’s means rather than her ends. Whereas owners of private property are never guaranteed the ability to achieve their ends, owners in an anticommons are not even guaranteed the ability to exercise their very means, their agenda-setting authority. From this revised and much narrower concept of the anticommons, what follows is that talk of “gridlock” in the formal sphere makes sense just as a normative argument about the best distribution of ownership and regulatory authority rather than a conceptual argument rooted in the idea of ownership.

Ben Barros

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

June 19, 2009 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 17, 2009

A Statement of Progressive Property

Gregory S. Alexander (Cornell); Eduardo M. Penalver (Cornell); Joseph William Singer (Harvard); and Laura Underkuffler (Cornell) have posted A Statement of Progressive Property on SSRN.  Here's the abstract:

What would a progressive theory of property look like? Although such a theory might take root within any number of specific normative frameworks, this Statement of Progressive Property outlines several features progressive theories of property should have in common. The Statement argues that we should understand property as both an idea and an institution, that property confers power and shapes community, both in its legal and social dimensions, and that property should be understood as serving plural and incommensurable values whose accommodation is possible through reasoned deliberation and practical judgment.

Ben Barros

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

June 17, 2009 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Dana on Foreclosure and Fragmentation

David A. Dana (Northwestern) has posted The Foreclosure Crisis and the Anti-Fragmentation Principle in State Property Law on SSRN.  Here's the abstract:

Secured credit in homes has been divided and over-divided and spun into so many separate interests that economically rational, socially beneficial modifications of loans are impossible. The mortgage story is a new one but the excessive fragmentation of property and the creation of waste and inefficiency is not new. And our legal tradition of state property law has an answer, in the form of an anti-fragmentation principle. Consistent with this principle, federal government trustees should be authorized to review mortgages and, where modification would yield greater total return than foreclosure, modify the loans. Blind trustee review, moreover, can be achieved without formal condemnations of property interests or the creation of government liability for regulatory takings.

Ben Barros

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

June 17, 2009 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (1) | TrackBack (0)

Monday, June 15, 2009

Supreme Court Grants Cert on Regulatory Takings Case

The Supreme Court today granted cert in Stop the Beach Renourishment v. Florida Department of Environmental Protection. (HT: Jonathan Adler at the VC).  The Florida Supreme Court's decision is available here.

Argh!  My summer is already booked.  I don't have time for this.

UPDATE:  I read the Florida Supreme Court decision and couldn't figure out why they granted cert.  The case is all about state law issues.  Then I looked at the cert petitions, which focused on the judicial takings issue.  If the grant does raise judicial takings, then this has the potential to be a very important case.  For those new to the issue, check out the best article on the subject, Barton H. Thompson, Jr., Judicial Takings, 76 Virginia Law Review 1449 (1990).

Ben Barros

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

June 15, 2009 in Takings | Permalink | Comments (0) | TrackBack (0)

Sotomayor and Property Rights

Today's Times has an article on how property rights issues might come up in Judge Sotomayor's confirmation hearings.  The article focuses on the Second Circuit's opinion in Didden v. Port Chester.  The opinion was unsigned, but Judge Sotomayor was on the panel.  I'm on the record as thinking that Didden was wrongly decided, but I'm not sure how much the case says about Judge Sotomayor's actual views on property rights issues.  My biggest impression of the opinion is that it is just sloppy, as many unsigned appellate court opinions can be.  As I noted before, it isn't clear that either the members of the panel or the clerk who wrote the opinion had actually read the Supreme Court's opinion in Kelo.  There were also a number of procedural reasons why the District Court order should have been vacated -- the District Court granted a motion to dismiss without treating the plaintiff's allegations as true while giving credence to some of the defendants' testimony from a preliminary injunction hearing.  In this sense, Didden resembles the similarly unsigned opinion in Ricci v. DeStefano, the New Haven firefighters case that also appears to have been procedurally sloppy.  My impression from both cases is that they may be troubling more for the tendency of appellate courts to be lazy in getting rid of some cases through weak unsigned opinions than they may be on the merits of those cases.

Ben Barros

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

June 15, 2009 in Takings | Permalink | Comments (0) | TrackBack (0)