Saturday, February 7, 2009

Villazor from SMU to Hofstra

Propertyprof Rose Cuison Villazor is moving from SMU to Hofstra.

Ben Barros

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

February 7, 2009 in Teaching | Permalink | Comments (0) | TrackBack (0)

Claeys Reviews Merrill & Smith

Eric Claeys (George Mason) has posted Property 101: Is Property a Thing or a Bundle? on SSRN.  Here's the abstract:
This Review Essay reviews Property: Principles and Policies (2007), by Thomas W. Merrill and Henry E. Smith, focusing particularly on its conceptual claim that property consists primarily of a "right to exclude." On one hand, Property: Principles and Policies is a novel and important casebook because exclusion illuminates the first-year property course better than the organizing themes of many other leading casebooks. On the other hand, the "right to exclude" suffers from limitations that deserve to be fleshed out more fully. Conceptually, property is better understood as a right of exclusive use determination. Economically, "exclusive use determination" explains, as a "right to exclude" does not, the use and disposition rights that encourage owners to maximize the values of the assets they exclusively own. The Essay illustrates using trespass, nuisance, property-rule/liability-rule doctrines, rent control, and the public-use limitation in eminent domain.

February 7, 2009 in Property Theory, Recent Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)

Tate on Publicity Rights, Taxation, and the Power of Testation

Joshua C. Tate (SMU) has posted Immortal Fame: Publicity Rights, Taxation, and the Power of Testation on SSRN.  Here's the abstract:

Publicity rights, or the rights to the use of one's image and likeness, are a relatively recent form of property. Several states now recognize rights of publicity as survivable, meaning that the heirs of deceased celebrities can inherit those rights. Because U.S. law has traditionally granted each individual the power of testation, a celebrity can also freely devise the rights to persons of her choosing. Nevertheless, some scholars have recently argued that publicity rights ought to pass automatically to specified statutory heirs regardless of the celebrity's wishes. Destroying the power of testation, these scholars allege, will insulate postmortem publicity rights from the federal estate tax and protect familial interests.

This Article considers whether state law should, as a general principle, override testamentary intent with regard to postmortem publicity rights. Evaluating the problem from both a property perspective and a tax perspective, the Article concludes that no such interference with testamentary freedom is warranted. There is admittedly some historical precedent for protecting the interests of surviving family members with regard to rights intrinsically connected to one's person, such as the right to dispose of one's body and the right to profit from one's artistic creations. The protective measures taken in these contexts, however, either lack a coherent justification or developed for reasons that do not apply to modern rights of publicity. Moreover, exempting publicity rights from the estate tax based solely on the abolition of testamentary freedom would be contrary to basic principles of tax policy. While Congress could amend the Internal Revenue Code to alleviate certain difficulties of valuation, it may be preferable to maintain a tax incentive for celebrities to donate their publicity rights to charity.

Ben Barros

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

February 7, 2009 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Malloy on DeSoto

Robin Paul Malloy (Syracuse) has posted The Mystery of Capital and Inequality of Outcome in Formal Porperty Ownership on SSRN.  Here's the abstract:

Hernando DeSoto has argued that economic development is linked to creating accessible representations of property so that more people can own property and engage in market transactions. He asserts that less developed countries fail to advance economically because they do not make it easy to access and prove title. The implication is that economic development problems can be solved by creating legal infrastructure that makes deeds, mortgages, and title information accessible, predictable, stable, and transparent. This essay, prepared for a forthcoming book on "Economic and Social Inequality" being edited by Jordon & Olgetree, raises questions about DeSoto's primary thesis. It does this by asking questions about disparities in economic outcome in a country such as the United States. The United States has the entire legal infrastructure that DeSoto finds missing in the developing world and yet we find that economic outcomes vary significantly between and among racial groups. A key area in which this is true is that of housing.

One conclusion to be drawn from this state of affairs is that while DeSoto's work presents a good starting point for thinking about the relationship between property law systems and development, it is not a cure-all because the presence of a stable, predictable, transparent, and generally accessible property law system does not ensure economic success for everyone working hard to achieve it. Similarly, in the developing world that DeSoto addresses it is not as if there are no legal forms for deeds, mortgages, and title records. The key is accessibility, and so attention must be paid to disparities in accessibility.

Perhaps DeSoto is correct with respect to the need for property law representations and infrastructure as the initial conditions for major economic gains in a developing country, but the question remains as to other steps that need to be taken beyond those outlined by DeSoto when dealing with continuing evidence of inequality of outcome in a mature and developed market economy such as that of the United States.

Ben Barros

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

February 7, 2009 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Schmudde on the Subprime Mess

David Schmudde (Fordham) has posted Responding to the Subprime Mess: The New Regulatory Landscape on SSRN.  Here's the abstract:

An era of unregulated financial markets has resulted in a global financial disaster the likes of which has never before been seen. Central banks of all major countries, and the governments of these countries, are scrambling in uncharted waters to avoid a complete meltdown of the worlds' financial markets. More than a trillion dollars has been allocated to try to fix the mess.

How did we get to this point? The unlikely culprit was residential mortgages in the United States. Regulatory bodies took no action while this market grew with increasing acceleration, increasing irresponsibility, and increasing greed. One of the great financial bubbles was created. Financial instruments were created, given an imprimatur by rating agencies, and sold the world over. These seemingly secure investments, backed by mortgages on residences in the United States, were purchased by millions of unwary investors, even the most sophisticated investors, and on an unparalleled international scale. The investment banks, anxious to ride a wave of profitability, created more and riskier investments as the bubble inflated. Part II of this article describes the mortgage landscape which predated the collapse.

In 2006, the housing market peaked and began its crash, bringing with it all of the purchasers of the mortgage backed financial instruments.

All the players in the residential housing market were devastated. Homeowners lost their homes. Mortgage lenders disappeared. Investment banks either went out of business, or merely survived thanks to government infusions of cash. Investors in the mortgage backed securities lost virtually all the value of their investment. And stock markets around the world crashed with a resounding thud, wiping out vast amounts of wealth.

How did this happen. Where were the regulators? What are the weaknesses in our residential mortgage funding system?

Part III of this article analyzes the mortgage market, its weaknesses, and its regulatory scheme. The causes of the problem, namely irresponsible borrowers, greedy lenders, unresponsive regulators, the overzealous mortgage backed securities market, the rush by foreign investors to place money in U.S. investments, the irresponsibility of the credit rating agencies, and the collusion of appraisers, are discussed and scrutinized.

Part IV breaks down the new regulations and legislation enacted in the wake of the financial meltdown.

Part V examines Fannie Mae and Freddie Mac, their ultimate decline, and resulting takeover by the federal government.

Part VI discusses and analyzes the various lawsuits which have arisen from the mortgage meltdown.

Finally, Part VII attempts to specify weaknesses in the residential mortgage funding system, and to propose elements which must be addressed in creating a more stable, yet responsive mortgage market in the future.

Ben Barros

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

February 7, 2009 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, February 6, 2009

Suk on Taking the Home

Jeannie Suk (Harvard) has posted Taking the Home on SSRN.  Here's the abstract:

This essay juxtaposes two Supreme Court cases, Kelo v. City of New London, and Town of Castle Rock v. Gonzales. Both reflect on the meanings of home as simultaneously the source of security against the focal point of anxieties about crossing between the categories of the private and the public. This essay traces the specter of doubleness that haunts the home in the law: the uncanny ways in which the home emerges as the exemplary private institution and the exemplary public concern in our society.

Ben Barros

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

February 6, 2009 in Property Theory, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Sisk on The Unconstitutionality of State-Sanctioned Trespass

Gregory C. Sisk (St. Thomas - Minnesota) Returning to the PruneYard: The Unconstitutionality of State-Sanctioned Trespass in the Name of Speech on SSRN.  Here's the abstract:

In PruneYard Shopping Center v. Robins, the United States Supreme Court held that the owner of a private shopping center who was required by a state court to grant political solicitation and speaking rights to strangers had thereby suffered neither a constitutional taking of private property without compensation under the Fifth Amendment nor a deprivation of the owner's own free speech rights under the First Amendment. Revisiting this subject more than a quarter-century later, this Essay argues that the PruneYard decision never should have been read as an open invitation to the states to impose constitutional obligations upon private landowners regardless of the offensiveness of the speech being expressed over the owner's objection or the permanence and breadth of the government-commandeered access to the property. Moreover, the Supreme Court's decisions over the past quarter-century confirm that imposing a permanent and continuous free-speech easement on private property is a taking for which compensation is due. A judicially created right of trespass in the name of free speech cannot be squared with federal constitutional protections of expressive autonomy and private property.

Ben Barros

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

February 6, 2009 in Land Use, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Blumenthal on A Psychological Perspective on Property Law

Jeremy A. Blumenthal (Syracuse) has posted "To Be Human": A Psychological Perspective on Property Law on SSRN.  Here's the abstract:

The psycholegal study of property law, theory, and doctrine is a new and developing topic area. As one Article in a Special Issue of the Tulane Law Review, this paper serves as a broad introduction and overview to the field. Aimed at both legal academics and social scientists, a primary goal is to encourage interdisciplinary collaboration between the fields in order to promote additional empirical research in the area. Thus, I first identify the important theoretical connections between psycholegal research and property law, theory, and policy. Next, I review what work has been conducted, as well as some contemporary research (including the other Articles in the Issue). Finally, I indicate several under-explored topic areas available to psycholegal scholars, and sketch what a research program taking a psychological perspective on property law might look like in a number of areas. I demonstrate the close relationship between empirical psychological findings and property law and theory, and discuss the potential for more.

Ben Barros

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

February 6, 2009 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Kettles on Day Labor Markets and Public Space

Gregg W. Kettles (Loyola Law School - Los Angeles) has posted Day Labor Markets and Public Space on SSRN.  Here's the abstract:

Day laborers standing on street corners have become a more common, and more controversial, sight in many U.S. cities. Taking them to be evidence of public disorder and illegal immigration out of control, some communities have responded by adopting the strategy of exclusion. They have revived the enforcement of ordinances against loitering and vagrancy, and changed traffic rules to discourage drivers from stopping to pick up workers. Other communities have responded by adopting the strategy of shelter. Viewing street corner day laborers as vulnerable, these communities have opened indoor work centers that offer job placement and other services.

Both of these approaches are fundamentally flawed. The strategy of exclusion ignores economic theory, which justifies the presence of day labor markets in public space. Exclusion also overlooks the nation's rich history of allowing day laborers and other temporary workers to use the sidewalk to solicit work. Exclusion further ignores fundamental economic and demographic changes that have increased demand for day laborers - whether illegal immigrants or not - and made public sidewalks the most efficient way to match these workers with potential employers. Finally, the strategy of exclusion is at odds with the contemporary push toward the "New Urbanism," with its sidewalk-intense uses, and the character of today's suburbs, which are increasingly integrated. The strategy of shelter similarly misunderstands the advantages offered by the street to day laborers. Like those who in earlier advocated sheltering the homeless and helping them find work, advocates of sheltering day laborers exhibit good intentions. But they risk turning street entrepreneurs into dependents. The defects of exclusion and shelter point to a third way to respond to day labor - one that gives them a place on the street.

Ben Barros

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

February 6, 2009 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Levitin on Modification of Mortgages in Bankruptcy

Adam Levitin (Georgetown) has posted Helping Homeowners: Modification of Mortgages in Bankruptcy on SSRN.  Here's the abstract:

This short essay sets forth the case for permitting modification of all residential mortgages in bankruptcy as an important step in easing the foreclosure crisis, stabilizing the financial system, and protecting against systemic risk going forward.

Ben Barros

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

February 6, 2009 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 3, 2009

AALS Property Section -- Call for Papers

The Property and Taxation Sections of the AALS are seeking to co-sponsor a half day session at the annual AALS meeting next year (January, 2010) in New Orleans.  If you are working on the intersection of these two areas of law and would like to present a paper--we would love to hear from you by February 28, 2009.  Specifically, please send us a working title, a brief description of your paper, and a draft if one is available.

The papers will be published in Northwestern Law School's Journal of Law and Social Policy; therefore, we will only consider unpublished pieces for possible inclusion in the AALS panels.

If you are interested, please contact  Professor Carol Brown, University of North Carolina Law School ( or Professor Nancy Staudt, Northwestern University Law School ( Please be sure to include both of us on your e-mail submissions.

Comments are held for approval so there will be some delay in posting.

February 3, 2009 in Conferences | Permalink | Comments (0) | TrackBack (0)

Sunday, February 1, 2009

Sports Stadium Leases


The recent controversy over attempts by Kansas City to pry (some might say steal) the New York Islanders NFL hockey team from the Nassau County Coliseum has got me collecting stories about teams that have bought their way of our leases for sports stadiums.  The Islanders have a long lease--signed in 1985, it runs for thirty years, until 2015.  There's also a clause in the lease acknowledging that an attempt to break the lease would cause irreparable damage to the stadium's owners.  (Sort of a liquidated damages provision, except in this case it's a liquidated equity provision.)

We spoke some about the lawsuit over the Seattle Supersonics' lease last summer.  That was easier for the Supersonics to buy their way out of--there was only a short time left on the lease.  The Islanders have a long way to go--six years.  So any attempt to buy their way out of the lease is going to be pretty costly.  (In that lease the rent is computed at eleven percent of ticket sales, as I understand it.)

What other teams have recently bought their way out of sports stadium leases (what most people call breaking their lease)?  Well, just recently the Chicago White Sox broke (bought their way out of) a lease at Electric Field in Tuscon, Arizona, which they had used as a spring training facility.  Their lease ran through 2012.

These stadiums and the leases around them are pretty interesting devices--they're designed, of course, to lure a team (or to keep a team put).  The Florida Marlins may be getting a new stadium, which would come with a thirty-five year lease that prohibits moving the team.  A liquidated damages clause would require the team to reimburse Miami for all costs of the construction of the stadium if it relocated.  Hmm, pretty interesting question of whether that's enforceable towards the end of the lease.  Maybe that's a good question for a remedies exam down the road....

Alfred Brophy

February 1, 2009 | Permalink | Comments (2) | TrackBack (0)