Friday, December 3, 2010

Claeys on Exclusion and Exclusivity in Gridlock

Eric Claeys (George Mason) has posted Exclusion and Exclusivity in Gridlock on SSRN.  Here's the abstract:

This Essay (which was prepared for a symposium held at George Mason University School of Law) reviews Michael Heller’s book The Gridlock Economy, focusing especially on its conceptual priors. The book assumes as true the conception that follows from Calabresi and Melamed’s Cathedral framework, whereby property consists of a right to exclude others, and invasions of the right to exclude may be remedied by a property rule. This definition departs significantly from the conception of property that informs social practice and private law, whereby property consists of a normative interest in determining exclusively the use of an external asset.

These differences lead The Gridlock Economy to make several conceptual and normative errors. In some cases (Moscow storefronts and Rhenish tolls), the book criticizes legal institutions for having too much property when in fact the problematic institutions are not property at all. In other cases (cotenancy partition and airplane overflights), the book criticizes legal institutions for having too much property when in fact existing law builds in discretion to limit property’s exclusivity to encourage the free and concurrent use of the propertized asset. And in some cases (redevelopment and private eminent domain), the book favors ad hoc government administration of a property dispute without being sensitive enough to the roles that socialization and respect for owner free action ordinarily play in property law.

Steve Clowney

December 3, 2010 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, December 2, 2010

Recent SSRN Downloads

In honor of the beginning of the month, here are the most downloaded property articles over the last 60 days:

1. [4549 downloads] Two Faces: Demystifying the Mortgage Electronic Registration System's Land Title Theory by Christopher Lewis Peterson  (Utah)

2. [402 downloads] Global Climate Governance to Enhance Biodiversity & Well-Being: Integrating Non-State Networks and Public International Law in Tropical Forests by Andrew Long (Florida Coastal)

3. [294 downloads] Gopal Singh Visharad and Ors v. Zahoor Ahmad and Ors., O.S.Nos. 1/1989, 3/1989, 4/1989, 5/1989: A Summary of the Babri Masjid-Ram Janm Bhoomi Decision  by Aparna Chandra (National Law School of India University)

4. [137 downloads] Medical Marijuana Meets Zoning: Can You Grow, Smoke and Sell that Here?  by Zachary Kansler (Albany) and Patricia Salkin (Albany)

5. [127 downloads] Information Failure and the U.S. Mortgage Crisis  by Adam J. Levitin (Georgetown) and Susan M. Wachter (Wharton)

6. [108 downloads] Social Networking and Land Use Planning Regulation: Practical Benefits, Pitfalls and Ethical Considerations  by Patricia Salkin (Albany)

7. [106 downloads] The Evolution of Zoning Since the 1980s: The Persistence of Localism  by William A. Fischel (Dartmouth)

8. [105 downloads] No Protectable Property Interest in Making Land Use Decisions and Other Ethics in Land Use Issues 2009-2010  by Patricia Salkin (Albany)

9. [98 downloads]  Relationships, the Rules of Professional Conduct and Land Use: Ethical Quagmires for Land Use Attorneys  by Patricia Salkin

10. [97 downloads] The Florida Beach Case and the Road to Judicial Takings by Michael C. Blumm [Lewis & Clark) and Elizabeth B. Dawson (Lewis & Clark)


Steve Clowney

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December 2, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 1, 2010

The Ownership Society

There are many, many things that I like about living in Kentucky.  The people are friendly, the landscape is beautiful, and the bourbon flows like water.  There are, however, some things that I could do without; the regular appearance of the Confederate Battle Flag, for example.  Proving that things could always be worse, The N.Y. Times reports that in Charleston, the the Sons of Confederate Veterans are planning to throw a "Secession Ball" in honor of the 150th anniversary of the Civil War,.  The organizer of the ball, Jeff Antley, says:

“We’re celebrating that those 170 people risked their lives and fortunes to stand for what they believed in, which is self-government,” Mr. Antley said. “Many people in the South still believe that is a just and honorable cause. Do I believe they were right in what they did? Absolutely,” he said, noting that he spoke for himself and not any organization. “There’s no shame or regret over the action those men took.”

I think that we, as property professors have a special duty to stand up to this rubbish.  When folks honor the Confederacy, they are not honoring something fundamentally decent but tragically flawed.  They are not honoring some lost "history" or the bravery of Southern soldiers. They are celebrating an ideology founded, almost solely, on the ownership of other people.  In pure property terms (setting aside the moral arguments), there is no greater crime than robbing someone of the ownership of their labor - it's what gives us our incentive to work hard and improve our human capital.  Those who wear Confederage flags and dance at Seccession Balls deserve our scorn and scholarly outrage.

Steve Clowney

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December 1, 2010 | Permalink | Comments (4) | TrackBack (0)

Tuesday, November 30, 2010

Are we over-parked?

Ryan Avent on government over-provision of park land:

[P]arks are the kinds of thing people say they want but don’t actually care much about. Or rather, they’re happy to take parks when those parks are provided for them “free”, through government regulation, but not when they have to pay for the benefit they’d receive, which should tell us that the benefit is not all that great.

Steve Clowney

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November 30, 2010 | Permalink | Comments (0) | TrackBack (0)

Sunday, November 28, 2010

Foreclosure, and Planting the Seeds of a Future Crisis

To get a sense of how badly the legal system has responded to the foreclosure crisis, consider this:  we are three years into it, hundreds of thousands have lost their homes, states like Florida are running outrageous special foreclosure courts where retired judges aim to process 200 foreclosures per day -- and only now are actors in the system beginning to ask whether the parties seeking foreclosure and eviction actually have standing.

Standing is -- or should be -- question #2 in any legal proceeding (right after jurisdiction).  But in Florida, here are the questions that are asked, according to the Wall Street Journal, no less:

"'Case No. 136,' the clerk intoned. 'Wells Fargo versus Edward Callahan.'

Judge Carlin asked whether the man was living in the house and was current on his mortgage. He answered no to both questions.

'Your house will be sold in 45 days,'' said the judge. 'That's all for today.'

Case time: 15 seconds."

Public interest lawyers like Prentiss Cox here in Minnesota have been fighting a lonely battle for a long time, trying to get courts to demand that parties attempting to foreclose demonstrate standing.  A handful of judges, like Judge Arthur Schack in New York, have occasionally demanded this absolutely basic threshold issue be resolved first.  But they are tiny grains of sand in the foreclosure machine. 

But maybe -- maybe -- people who take the rule of law seriously are finally beginning to be heard. 

The New York Times reports today that the U.S. Trustee is beginning to demand that foreclosers demonstrate standing in bankruptcy cases.  That news isn't amazing; what's amazing is that it is news

I spend a lot of my time researching property rights restitution issues.  I've often argued that restitution is among the most complex and important issues in the world of property rights today.  Complex, because once someone has been wrongfully dispossessed of property, restoring it to them becomes almost impossibly difficult over time; important, because few things create as much lasting bitterness as the wrongful dispossession of property (see, e.g., crisis, Israeli-Palestinian). 

One day, we may well look back at the foreclosure crisis and ask, to paraphrase David Byrne, 'my god, what have we done?'

Mark A. Edwards

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November 28, 2010 in Home and Housing, Law Reform, Mortgage Crisis | Permalink | Comments (0) | TrackBack (0)