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Univ. of Kentucky College of Law

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Thursday, June 10, 2010

Off to AALS

I'm off to New York for the AALS mid-year Property meeting.  I hope to see many of you there.

Ben Barros

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June 10, 2010 in Conferences | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 9, 2010

Measuring Impact of Property Scholars

A few weeks ago I posted Brian Leiter's list of most-cited property scholars.  As Nicholas Blomley and I discussed in the comments to that post, Professor Leiter's list is parochial by design:  it includes only professors at US law schools.  It therefore excludes some scholars who have had a large impact on U.S. property scholarship, such as Hanoch Dagan (because he is not at a U.S. law school), or Bill Fischel (because his appointment is in economics).  Because the citation study is done using Westlaw's JLR database, the study also obviously focuses on impact on U.S. legal scholars, and excludes property scholars with high impact in other disciplines or in other countries.  All of this got me thinking about the following questions:

(1) Using Professor Leiter's methodology, are there any U.S. legal scholars who were missed?  The study measures journal citations from the past five years, so it captures the people who are most cited in recent scholarship, not the people who have the most citations overall.  I think that Patty Salkin would make the list.  Are there others?

(2) Sticking only with the JLR database, and therefore impact on U.S. property scholarship, but including academics from other disciplines and from non-U.S. law schools, who else might have had a large impact on U.S. property scholarship?  I just did a quick search on Elinor Ostrom, who had quite a few hits but not as many as I would have expected given the importance of her work.

(3) Widening the scope even further, would it be possible to measure the highest impact property scholars worldwide?  What databases could be used?

(4) Without strict reference to citation-based impact measures, who are the most important property scholars in non-U.S. law schools and in disciplines other than law?

Any thoughts on any of these questions would be very welcome.

Ben Barros

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June 9, 2010 in Law Schools | Permalink | Comments (0) | TrackBack (0)

It Makes a Great Gift!

De Soto Book Or at least a good addition to your school's library.  Amazon now (finally) has copies in stock of Hernando de Soto and Property in a Market Economy, edited by yours truly.

Ben Barros

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June 9, 2010 | Permalink | Comments (4) | TrackBack (0)

Tuesday, June 8, 2010

Singer on The Anti-Apartheid Principle in American Property Law

Joseph William Singer (Harvard) has posted The Anti-Apartheid Principle in American Property Law on SSRN.  Here's the abstract:

Recently, many federal courts have been interpreting civil rights laws to allow racially discriminatory treatment of customers in retail stores and racial and religious harassment of tenants and home owners by their neighbors. These courts are misinterpreting federal law and ignoring the will of Congress embodied in the Civil Rights Act of 1991 which clarified that market participants have the right to enjoy property and contract rights on equal terms. More important, these courts are wrongly assuming a background norm of negative liberty; they presume that we are free to engage in racial discrimination in market transactions unless statutes clearly and unambiguously limit our freedom. But this is a mistake.

Since the 1960s, the background norm has become a presumption that market participants are not allowed to treat people unequally because of race, religion, sex, or disability. Both federal and state statutes embody this norm and many statutes contain it explicitly. Even the Civil Rights Act of 1866 was amended in 1991 to provide that private persons are entitled to equal contract terms. We aspire to be a free and democratic society that treats each person with equal concern and respect. We now understand that this commitment not only entails the repudiation of feudalism and slavery but the abolition of apartheid, whether imposed by law or enacted by private persons exercising their property rights. Liberty does not mean the absence of restraint on action; it means the creation of a legal infrastructure of a free and democratic society.

Equal access to the marketplace without regard to race is now as fundamental a norm as is the abolition of feudal tenures. For this reason, the common law should be interpreted to include a background assumption that prohibits racial discrimination in housing or public accommodations. Unless statutes affirmatively grant stores the right to treat their customers differently on account of race, courts should presume that they have no such right. Unless statutes affirmatively grant individuals the right to harass their neighbors on account of race or religion, courts should presume that housing rights include the right to be free from such discriminatory harassment. Rand Paul was wrong to suggest that liberty demands freedom to reject customers because of their race; the very opposite is true. American property law now contains a fundamental anti-apartheid principle that ensures access to the marketplace without regard to racial discrimination and the federal courts should start acting on that foundational commitment.

Ben Barros

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June 8, 2010 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Fennell on Possession

Lee Anne Fennell (Chicago) has posted Possession Puzzles on SSRN.  Here's the abstract:

This brief essay was delivered in slightly different form as the Third in the Wolf Family Lecture Series on the American Law of Real Property at the University of Florida Levin College of Law on March 17, 2010. In it, I use the foreclosure crisis as a springboard for exploring some foundational questions about the relationship between property rights and secure possession. Although the development of property rights is generally viewed as advancing security of tenure, this is true only up to a point; the ability to subdivide and alienate interests in property ultimately encompasses alienation of certain aspects of the option to remain in possession. Cutting back on property’s alienability comes at a high price, however – reduced access to the very possession one might hope to maintain. After framing the basic tradeoff between access and security, I examine some ways that both values might be pursued simultaneously through the further refinement of property rights.

Ben Barros

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June 8, 2010 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Grimmelmann on the Internet as Semicommons

James Grimmelmann (New York Law School) has posted The Internet is a Semicommons on SSRN.  Here's the abstract:

The Internet is a semicommons. Private property in servers and network links coexists with a shared communications platform. This distinctive combination both explains the Internet's enormous success and illustrates some of its recurring problems.

Building on Henry Smith's theory of the semicommons in the medieval open-field system, this essay explains how the dynamic interplay between private and common uses on the Internet enables it to facilitate worldwide sharing and collaboration without collapsing under the strain of misuse. It shows that key technical features of the Internet, such as its layering of protocols and the Web's division into distinct "sites," respond to the characteristic threats of strategic behavior in a semicommons. An extended case study of the Usenet distributed messaging system shows that not all semicommons on the Internet succeed; the continued success of the Internet depends on our ability to create strong online communities that can manage and defend the infrastructure on which they rely. Private and common both have essential roles to play in that task, a lesson recognized in David Post's and Jonathan Zittrain's recent books on the Internet.

Ben Barros

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June 8, 2010 in Intellectual Property, Property Theory, Recent Scholarship, Virtual Property | Permalink | Comments (0) | TrackBack (0)

Wright on the Denominator Problem

Danaya C. Wright (Florida) has posted A New Time for Denominators: Toward a Dynamic Theory of Property in Regulatory Takings Relevant Parcel Analysis on SSRN.  Here's the abstract:

Despite the Supreme Court’s 25-years of fierce forays and rapid retreats in the battle over property rights and the takings clause, two intractable theoretical problems have eluded the Court’s attempts to provide guidance for state actors as to when a regulation will, in the words of Justice Holmes, “go too far.” Those two problems lie in identifying the relevant parcel against which a property restriction will be weighed (the parcel as a whole, relevant parcel, or denominator issue) and the relevance of the timing of a regulation in analyzing the extent and reasonableness of a landowner’s expectations of unregulated use for compensation purposes. The first is a question about how we identify the quantum of property “taken” by a regulation; is it one toothpick out of a very large bundle of property rights or is it the entirety of a relatively small bundle? The second is a question about the fairness of changing land-use regulations mid-stream, so that a person who purchased land under one regime might be entitled to compensation when a new, stricter regime significantly diminishes the uses she can make of her land. These two issues merge together when takings jurisprudence demands that we identify the relevant parcel at some regulatory moment in time. This article suggests that we should not be analyzing takings claims in single snapshot moments, but should instead look at actions the landowner has taken to make herself vulnerable to the supposed harms of regulations. This article challenges traditional takings jurisprudence and offers a better way to balance the legitimate interests of landowners with the needs of the public in regulating land uses.

Ben Barros

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June 8, 2010 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)