Friday, November 26, 2010

Best Use of Property Humor in a Sitcom Goes To...

30 Rock:

Steve Clowney

November 26, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, November 25, 2010

How Private Property Saved the Pilgrims

Happy Thanksgiving!  This is surely the greatest of all holidays - (nearly) everyone celebrates, and it centers on family, eating, and shopping.  Now, unlike Ben, I think Turkey is pretty gross --  well, not gross but utterly and completely tasteless.  There's a reason no one can agree on how to cook a turkey (Deep fry it? Cut it in half? Cover it in herbs?).  That's because no one has ever figured out how to make that bird taste like anything good.  So, I announce publicly and proudly, that I prefer chicken on Thanksgiving. 

Also, in honor of the holiday, it's fun to recap the argument that private property saved the pilgrims. Benjamin Powell, an economist at Suffolk, tells the story here:

Many people believe that after suffering through a severe winter, the Pilgrims’ food shortages were resolved the following spring when the Native Americans taught them to plant corn and a Thanksgiving celebration resulted. In fact, the pilgrims continued to face chronic food shortages for three years until the harvest of 1623. Bad weather or lack of farming knowledge did not cause the pilgrims’ shortages. Bad economic incentives did.

In 1620 Plymouth Plantation was founded with a system of communal property rights. Food and supplies were held in common and then distributed based on equality and need as determined by Plantation officials. People received the same rations whether or not they contributed to producing the food, and residents were forbidden from producing their own food. . . . Because of the poor incentives, little food was produced.

Faced with potential starvation in the spring of 1623, the colony decided to implement a new economic system. Every family was assigned a private parcel of land. They could then keep all they grew for themselves, but now they alone were responsible for feeding themselves. This change, [the Pilgrims recorded], had very good success, for it made all hands very industrious, so as much more corn was planted than otherwise would have been. Giving people economic incentives changed their behavior.  Once the Plymouth Plantation abandoned their communal economic system and adopted one with greater individual property rights, they never again faced the starvation and food shortages of the first three years.

This is a yarn that makes the property-lizard part of my brain start tingling.  However, it doesn't really explain how the Indians managed to survive here for thousands and thousands of years.

Again, happy chicken day.

Steve Clowney

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November 25, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 23, 2010


Frequent readers may remember that an important tenet of my property teaching philosophy is that the struggle over property rights has a central place in history.  I've argued that we might undersell the importance of property rights by focusing so intensively on the doctrinal trees that we miss the political-economic forest.

One way I like to discomfort my students, and bring into stark relief the historical importance of property rights, is by examining the emancipation of slaves through the lens of the Takings Clause. 

The Takings Clause may seem (and, I think, is) a somewhat callous and inadequate lens through which to view the abject horror of slavery, but that's exactly how some framed the issue 150 years ago.  In a debate on the Senate floor, Henry Clay (for one) argued that emancipation of slaves would be a taking of private property, requiring just compensation of the slave owners.  Anticipating the reply that emancipation could not be a taking because humans could never have legitimately been property, Clay said (I like to imagine coolly), "That is property which the law says is property."  Sale of slaves

In both my first year course, and my Comparative Property Rights seminar, I make my students debate that proposition.  I ask them simply: Is it true?  Most say no.  So then I ask: If law can't tell us what is property, then what can?  No one, myself included, seems to be able to answer that.

All that is a prelude to telling you that for the past few weeks, the New York Times has been running a wonderful feature, Disunion, which provides a day-by-day analysis, using primarily contemporary accounts, of the descent into the Civil War immediately preceeding and following Lincoln's election in 1860.  For history buffs like me, it's fascinating.  I find myself more eagerly concerned about the daily news from November 1860 than the news on the front page. 

The news from this week (minus 150 years) has been particularly ominous.  Southern state legislatures are meeting to 'discuss' secession in the wake of Lincoln's election, but the extreme rhetoric of the meetings leaves no doubt that horrible violence is at hand.  Members of the cabinet of the sitting President are preparing to join them.  The federal government is teetering. 

Meanwhile, President-elect Lincoln has remained maddeningly silent.  Finally, the pressure becomes unbearable, and through Illinois Senator Lyman Trumbull, Lincoln attempts to reassure the South: "when Trumbull told the crowd that under Lincoln, all the states will be left in complete control of their own affairs, including the protection of property, those in the know believed they were hearing the words of the president-elect."  The meaning of Lincoln's pledge to protect property was unmistakable.  Lincoln was attempting to tell the South that, in Clay's words, that was property which the law said was property -- including human beings.  For Lincoln's admirers, that pledge may come as a shock.  He was not yet fully committed to emancipation.Slave deed   

But, of course, nothing Lincoln could say or do would reassure the Southern legislatures.  They didn't trust him or the abolitionists who supported him.  War was on the horizon. Within five years of that week in November, 600,000 Americans would be dead.

As I like to say to my students, when it comes to property rights, damn right, there will be blood.  

Interestingly, in hate-laced rhetoric that resonates today, secessionists cast Lincoln and Vice President-elect Hamlin as something 'other' than bona fide Americans.  Southern media and politicians constantly accused Hamlin in particular of having “black blood in him,” or being descended from Native Americans.  One Southerner wrote to Lincoln, offering to buy the "intelligent mulatto boy" Hamlin from him.

The Disunion series is a fantastic teaching tool on lots of levels, but it is a treasure trove on the historical centrality of property rights.  Check it out.

Mark A. Edwards

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November 23, 2010 in Property in the Human Body, Property Theory, Takings, Teaching | Permalink | Comments (2) | TrackBack (0)

A Market for Hair

Over at the Faculty Lounge, Bridget Crawford has an interesting post about the market for human hair.  Crawford seems to suggest that this market should give people pause because the selling of hair is driven by dire poverty. 

As an initial matter, I find this market endlessly fascinating.  The New York Times recently estimated that the U.S. imports $250 million worth of human hair.  Much of the demand comes from the growing popularity of weaves/hair extensions - a trend that started long ago in the black community but has become increasingly common among white celebrities (see, e.g., the Paris Hilton lawsuit over hair extensions).  A good weave is also surprisingly expensive.  Buying fine quality hair and having it sewed in by an expert hairdresser can cost thousands of dollars.  Finally, it's worth noting that there is some unease (tension is too strong a word) between the black consumers of hair-care products and the Korean businesspeople who seem to dominate the market for ethnic hair goods.

From my seat, it's tough to see why the selling of hair is problematic.  It gives the poor another arrow in their quiver of economic resources without negatively impacting human dignity.  Selling a bundle of hair seems far more like selling an idea than it does like selling organs -- there's an inexhaustible supply, there are no safety concerns, and it doesn't seem to affect people's altruism (plenty of folks still donate to locks of love).  Moreover, a lot of the hair that's brought to America had originally been ritualistically donated to temples in India.

I do wonder, however, if I'd feel quite the same if I came from a community that engages in ritual hair covering.

Steve Clowney

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November 23, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, November 22, 2010

The Stagnation of the Common Law of Property

I'm uploading older articles to SSRN, so I thought I'd mention a short piece that I co-authored this summer for the Indiana Law Review.  You can find it here.  While the second half of the article discusses changes in the Indiana law of property over the past year, the first half is a short essay in which I lament the stagnation of the common law of property.  Although this article specifically concerns Indiana, I think that this is broadly true.  I'm sure that my thesis will be strongly challenged, but I think it reflects the frustrations of transactional real estate attorneys -- too much uncertainty leads to settlements which do nothing to advance the law.  I've been involved in circumstances that would have made great test cases, but my clients were just too darn risk averse.

Here's my conclusion:

This essay argues that common law of real property law in Indiana, and more broadly, is stagnating. This stagnation of the common law of property results from a combination of factors. Transactional attorneys view the litigation process as unworkable, particularly in the real estate context, for three key reasons: (1) the cost; (2) the length of time until resolution; and (3) the uncertain outcome. If neither the common law nor statutory law provide easy answers to an issue, the parties are likely to conclude that they are better off resolving their differences out of court rather than spending time and money to achieve an unpredictable result. This situation is a classic Catch-22 -- the parties to real estate disputes refuse to bring their cases to the appellate courts in part because of the failure of the courts to modernize the Indiana common law of property, but the appellate courts of Indiana have limited opportunities to modernize the law because of the failure of parties to modern disputes to allow their cases to be heard.

Tanya Marsh

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November 22, 2010 in Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Resources on the Mortgage Crisis

Last week in my Real Estate Transactions class, we focused on financing residential and commercial real estate, while looking at the current mortgage crisis.  A few materials that I found helpful:

The reports (and executive summaries) of the Congressional Oversight Panel.  A full list can be found here.  The ones I found most useful were: (i) the February report, regarding commercial real estate, and (ii) the November report, regarding the current issue of whether securitized residential mortgages were properly documented and therefore can be legally foreclosed.

An interesting counterpoint to the COP's November report is a White Paper released by the American Securitization Forum last week.  It can be downloaded through a link in the press release here.  The White Paper was endorsed by thirteen large law firms, which will surely preview arguments those firms will make in the lawsuits to come.

Finally, the Senate Banking, Housing & Urban Affairs Committee held some hearings last week on these issues.  A list of the witnesses and links to their written comments can be found here.  Particularly of interest is the written testimony of Associate Professor Adam Levitin of Georgetown, who refutes the legal theories set forth in the ASF's White Paper.

A little light reading for your Thanksgiving holiday weekend!

Tanya Marsh

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November 22, 2010 in Mortgage Crisis | Permalink | Comments (0) | TrackBack (0)