Friday, December 16, 2011
Stephen Munzer (UCLA) has posted A Bundle Theorist Holds On to His Collection of Sticks (Econ J. Watch) on SSRN:
For nearly a century, most persons who have studied or written about property have conceived of it as a bundle of rights or, colloquially, as a bundle of sticks. In the mid 1990s, several philosophically minded academic lawyers questioned whether property should be thought of as a bundle at all. The impact of their work is reflected in Merrill and Smith (2007), a highly regarded and intellectually challenging casebook used in many U.S. law schools. Merrill and Smith emphasize that property is centrally a right to exclude and is generally held in rem, that is, is good against all the world. They find bundle theories of property defective for various reasons. This essay argues to the contrary. There are solid grounds for holding on to at least some bundle theories, which facilitate the careful analysis of the complexity of property. Moreover, Merrill and Smith’s criticisms are often misguided or ineffective. Lastly, their account gives an overly simple picture of property and views property law as a more unified subject than it actually is.
Thursday, December 15, 2011
The LA Times reports that the number of Nevada properties that entered foreclosure fell by 75% in October, even as the rate climbed elsewhere in in the country.
That news, though, did not result from a reversal of fortune in the Nevada housing market. It was spawned by a new Nevada law that plays hardball with companies doing the foreclosing. Assembly Bill 284, which took effect in October, requires those foreclosing on a home to file an affidavit proving they have the right to bring the action — and it increases civil and criminal penalties for using fraudulent documents in a foreclosure.
Wednesday, December 14, 2011
Some guys from the Heritage Foundation read the tea leaves:
Radical environmentalists, local business groups, and the ever-present Not in My Backyard crowd have been trying for decades to reshape American communities to conform to their preferred “smart growth” policies. These advocates work to impose land use regulations that would force Americans into denser living arrangements, curtail freedom of choice in housing, discriminate against lower-income Americans, and compel people to pay more for their houses and give up their cars in favor of subways, trolleys, buses, and bicycles.
Tuesday, December 13, 2011
I like any discussion of land use issues in my hometown paper, but this piece from the Pittsburgh Post-Gazette seems like a pretty weak defense of the suburbs:
Suburban life is attractive to many Americans for its particular subjective experiences. These differ from other living experiences, including those offered by urban lifestyles. So suburban living is not about housing densities . . . . Nor is it a matter of walking more: People walk, jog, and bicycle in suburbs. They just don't walk or bike to work very much. Suburban living is a matter of choice. Among many choices, really, since there are numerous distinct urban and suburban residential environments in every American metropolitan area.
Yes, it's possible that the suburbs have succeeded because people prefer the suburban "living experience" over the alternatives. Yet, it seems dishonest not to acknowledge the high price of residential units in urban areas (driven by overly agressive growth controls) might be driving a lot of the popularity of areas outside of the city center. If New York or Boston or San Fransisco allowed more construction, more people would move there over the suburbs.
(Photo: Hong Kong - the city with the most tall buildings in the world, by flickr user bsterling)
Sean Brennan (New South Wales) has posted Constitutional Reform and its Relationship to Land Justice (Land, RIghts, Laws: Issues of Native Title) on SSRN. Here's the abstract:
A referendum recognising Australia's indigenous peoples in the Constitution will be held in 2013. While many key legal settings for native title are already in place in Australia, recent history tells us that important legislative and judicial choices about Indigenous land justice will continue to be made in coming years and that constitutional arrangements will exert a significant shaping influence on the outcome. A range of viable proposals for constitutional reform are presently under consideration for the 2013 referendum which could materially affect the future pursuit of land justice for first peoples in Australia. These include, in particular, a non-discrimination clause with respect to race, which allows for positive Indigenous-specific laws, including ones enacted under a revised power in section 51(xxvi) of the Constitution, and a constitutional provision to support agreement-making between governments and Aboriginal and Torres Strait Islander people.
Monday, December 12, 2011
Gina Patnaik has posted an illuminating meditation on the applicability of the Public Trust Doctrine to the Occupy protesters:
[W]e, the academic community of UC-Berkeley, are acting upon a constitutional mandate to create in the University of California not just public space but, more importantly, a public trust given over to the advancement of “rights and liberties” – foremost among these the rights to free assembly and free speech. . . How is it that the university became the property of the regents? How can it not belong to the people of California? Tracking down the answers to these questions requires decent dose of archival research and perhaps too much history to fit neatly into a single meditation on the quagmire of interests (or lack thereof) shaping the future of higher education in California. Taking some time to place the university’s constitutional mandates in context, however, can provide a basis for interrogating the regents’ relationship to both the university and the administrators they deputize to oversee individual campuses.
(HT: Concurring Opinions)
The New York Times looks at what's going on inside all those homes that were abandoned during the foreclosure crises:
A man's home is his castle — except when it becomes someone else’s marijuana plantation, crack den, movie set, homeless shelter, farm or public park. Such opportunities for conversion present themselves in the United States, which now has about 1.2 million more vacant homes than there would be in normal economic times. In fact, the depressed housing market has become a case study in how an economy adapts — if only in an early transitional phase — when one of its pillars suddenly collapses.
Eduardo Penalver (Cornell) has posted Property's Memories (Fordham Law Review) on SSRN. Here is the abstract:
This short essay, presented at Fordham's conference on the social functions of property (and in an earlier form at a conference on law and memory at USC), explores the relationship between property and memory. It distinguishes between property as the object of memory ("memory of property") and property as a medium of memory ("memory in property"). With respect to both kinds of memory, the common law expresses a great deal of ambivalence towards memory. Unlimited memory is no less dangerous to a system of property than it is to an individual’s ability to think. Recent reforms of adverse possession, the rule against perpetuities, and the estate tax seem to reflect their supporters’ apparent disregard of the costs of overprotecting memories of property and memories in property. The common law’s more balanced approach seems implicitly to recognize the need to weigh memory against possession, stability against fluidity. The recognition that ratifying property’s memories generates both costs and benefits does not counsel decisively against the wisdom of modifying the law of adverse possession or abolishing the rule against perpetuities, but it does cast doubt on the one- sided approach of the proponents of these measures. In the law of property, memory is not an unmitigated good.