May 4, 2012
Libertarianism and Property Rights
Ilya Somin highlights a blog post by Georgetown political philosopher Jason Brennan on the libertarian conception of property rights:
The left believes that libertarians believe:
Property Rights No Matter What: People are self-owners. Respecting their self-ownership requires a particular kind of laissez-faire property-rights regime. We should have that regime no matter what, even if it immiserates the poor and systematically leads to widespread poverty.
In fact, hardly any self-described libertarians believe this. Instead, in one way or another, most believe that a system of property rights is supposed to solve real human problems and make our lives better. Most libertarians advocate free markets and property right in large part because they think this will tend to make people’s lives go better.
The left wants us to have a debate over whether “property rights no matter what” is true. They’ll win that debate.
What we’re trying to say in this blog is that if you look carefully at what the (smart) left means by “social justice”, almost all us classical liberals and self-described libertarians count as caring about social justice.
Somin then complicates Brennan's point. He states, "Rejecting absolute rights as a matter of moral theory does not mean we should always reject them as a matter of policy. Political realities such as slippery slope problems, interest group power, and knowledge limitations might justify absolute prohibitions against some types of behavior even though there may be rare instances where it is actually justified. For example, while I recognize that there are rare cases where Kelo-style “economic development” takings cause more benefit than harm, I am skeptical that real-world governments subject to interest group lobbying are likely to confine their use to these unusual cases. For that reason, I favor an absolute ban on economic development condemnations in the real world, even though I would prefer a different policy if we had a completely benevolent government with perfect information."
Oliar on The Copyright-Innovation Trade-Off
Dotan Oliar (Virginia) has posted The Copyright-Innovation Trade-Off: Property Rules, Liability Rules, and Intentional Infliction of Harm (Stanford Law Review) on SSRN. Here's the abstract:
Should the law secure to copyright owners control over new technological uses of their works? Or should the law leave technological innovators free to explore and exploit such uses? The greater control afforded to copyright owners, the greater the incentive to produce content, but also the greater the disincentive to produce better technologies to enjoy it. This Article studies the degree to which protecting copyright owners or technological innovators by property rules or liability rules over new technological uses of content would drive members of each group to invest desirably in their respective creations and in reducing the interference between their activities.
The Article offers three major contributions: (1) it assesses the degree to which different entitlements promote authorship and innovation as well as investments to minimize the interference between them, (2) it shows that a property rule in technological innovators might drive them to harm copyright owners intentionally, and (3) it suggests a way of modifying legal entitlements that can improve copyright owners and innovators’ incentives to invest.
May 3, 2012
Beyond Blackacre: Blueunit?
Carol Rose has written:
“What is the symbol for property? It is easy to answer that land is that symbol…but why is land – immovable, enduring land – the central symbol for property? Why not, say, water? Water, after all, is in fact the subject of important and valuable property rights, and, indeed, concerns about water can substantially modify the rules about land. If water was our chief symbol of property we might think of property rights - and perhaps other rights – in a quite different way. We might think of rights literally and figuratively as more fluid and less fenced-in; we might think of property entailing less of the awesome blackstonian power of exclusion and more of the qualities of flexibility, reasonableness and moderation, attentiveness to others, and cooperative solutions to common problems. Those qualities are in fact even a part of landed property – as in nuisance law – however little the symbol of landed property may suggest”. (Carol M Rose “Property as the Keystone Right?” (1996) 71 Notre Dame L Rev 329 at 351 – the New Zealand way of referencing!)
We might ask – is Rose’s view of land itself too monolithic a symbol? “Land” means very different things in different contexts and at different times. “Land” includes vast areas of farmland; various types of estates and interests; smaller blocks; and sometimes, buildings. We might pause to reflect that the common example of “land” is a piece of land known as Blackacre. But, why Blackacre? Why not Greenlease or Blueunit? In fact, developments in the law of subdivision and land use, and the widespread development of “common interest communities” mean that Blueunit is – now and in the future – likely to be a far more important area for study than Blackacre.
For what of Blueunit? The bundle of rights attaching to Blueunit will be very different from the bundle of rights attaching to Blackacre. The type of exclusionary rights attaching to Blueunit will be different to those applying to Blackacre. Simple factors such as the proximity of Blueunit A to Blueunit B; the fact that Blueunit A and Blueunit B may share a boundary that is a party wall; the fact that Blueunit A and Blueunit B may have to share payment for repair of a roof of a building which is not part of either of their but of other units within an apartment building; the fact that Blueunit A and Blueunit B may vote together or against each other in their owners’ corporation or body corporate. The owners of units may be neighbours in much more of a sense than the owners of "acres".
Blueunit needs much more attention.
Kaiser Aetna v. United States
Law & Society will be meeting just down the road from Kuapa Pond. I am planning a side trip to see the once pond, now marina. It's a short bus ride and, yes, each passenger is allowed one (1) ukulele. Please email if you want to join me.
Here's a satellite image.
Here's historical pictures.
Here's the mall website, including directory.
May 2, 2012
What Does it Mean When a Lease Requires the Tenant to Perform "Routine Maintenance?"
The Real Estate editors at the Chicago Tribune run the numbers:
[M]ost states do not allow landlords to contract away their duty to maintain a fit and habitable rental. Of those that do, the statutes limit the practice to single-family homes, and typically require that the duties be spelled out in writing and that the arrangement be a fair bargain (in other words, the tenant must be paid for the labor or get a good deal on rent).
May 1, 2012
One of the benefits of a blog (I am told) is the chance to introduce topics and ideas I know I'll never have the chance to turn into full articles. Here is the first - an abstract of the beginning of a response to Henry Smith's "Property as the Law of Things":
"Henry’s Myth; or, The Baby, the Bathwater, and the Bundle of Rights
Professor Smith’s recent article “Property as the Law of Things” (2011) 125 Harv L Rev [forthcoming] argues that the legal realists’ notion of property as a “bundle of rights” should no longer be considered useful to property lawyers and jurists. This paper argues otherwise, pointing out that (a) Smith has misrepresented the intellectual origins of the idea of property as a bundle of rights; (b) the “bundle” is more appropriately seen as a metaphor, rather than a description, and Smith has misrepresented this metaphor; (c) Smith’s new “modular architecture” metaphor bears more resemblance than Smith will admit to the idea of the bundle; and (d) there remain a number of examples for which the bundle of rights is a better analogy than modular architecture. This paper criticises the notion that the bundle of rights metaphor must give way to a modular architecture analogy as “Henry’s myth”, and concludes that we should not too easily abandon an enduring metaphor like the bundle of rights without being aware of what else might be lost: the bundle of rights remains something of a “baby” within the bathwater of property law theory."
Mostly, I think, it is just a good title. It begins from an assessment that Smith - and others - treat the "bundle" as a realist idea, when the phrase significantly pre-dates the realists and the legal realist movement. Further, a bundle is something we can picture quite well - "agenda setting" (as per Katz) or "modular architecture" less so. That said, the abstract is less nuanced than an article would be (as Smith's article is itself more nuanced than its title).
Comments welcome, but as I said, it's not likely to be something I have time to turn into a proper article, so as much as anything, I hope perhaps someone else can pick up on it.
Steve's introduction probably says it all, though it should have been "Australasian law journals (mostly NZ really)".
My recent work has appeared (or is forthcoming) in a balance of professional and academic journals - first point of comparison: New Zealand essentially doesn't have student-edited law reviews. There are what you might call "bar journals" (mostly for the profession) and "refereed journals" (which are refereed, generally on a blind peer-review basis). Some journals are student-edited in the sense of citation-checking, etc, but most publication decisions are made by faculty members.
My forthcoming academic articles are on "property rights in resource consents: some thoughts from law and economics" and a "response" article on issues with remedial schemes for leaky buildings, taking into account ideas from gridlock and the role of morale in property rights. Professional articles have been on body corporate AGM's (governance of common interest communities, sort of), and management agreements for bodies corporate (management of common interest communities, sort of).
My interest in unit titles deserves a bit of an introduction. These are called "strata titles" in Australia, and the nearest US comparison is probably with condominiums, but NZ law has become particularly prescriptive and is probably less flexible than US law in this area. I hesitate to use the phrase "common interest communities" because unit titles are a particular type of title/ownership/governance - very different to say a fee simple subdivision, even though in particular instances both/neither may relate to gated communities, or private infrastructure, etc. A recent book with an NZ connection has used the term "Multi-Owned Housing", but I don't think that is quite right either, because many of the unit titles issues relate to mixed-use developments (commercial, residential, retail, etc).
I am particularly interested in the intersection (good academic word) of unit titles with administrative law, company law, and broader ideas of property theory.
Finally, my "day job" is as a director (aka partner, but we incorporated pursuant to an NZ law change) of a mid-size law firm. My practice covers both company/commercial and property law, as well as the management and other responsibilities of being in this role.
Also, I am guest lecturing securities law at the University of Waikato this semester. Interestingly (by way of comparison) NZ is seeing a complete overhaul of securities law after the GFC - but property law is essentially untouched (no greater regulation of mortgagees, foreclosure, etc).
That's enough introduction for now. Other posts will hopefully be more substantive.
Introducing Guest Blogger Thomas Gibbons
I'm very happy to announce that Thomas Gibbons has agreed to guest blog here during the month of may. Thomas is a practising lawyer and occasional lecturer from Hamilton, New Zealand. He has a particular interest in applying ideas from property theory (gridlock, critiques of the bundle of rights, etc) to specific property law issues (such as leaky buildings and land-use consents). He has published articles and notes in a number of Australian law journals and recently written Unit Titles Law & Practice (LexisNexis, 2011), a book on the New Zealand Unit Titles Act.
You can check out his work website here.
The World's Ten Best Parks
Just because you're trapped in a concrete jungle, it doesn't mean that you need to escape the city in order to relax. In fact, you can find some of the world's most inviting parks in big cities. On your next trip, carve out some time to soak in the serenity of these urban parks.
Recent SSRN Downloads
1. [281 downloads] 2011 Developments in Connecticut Estate and Probate Law
Jeffrey A. Cooper (Quinnipiac) & John R. Ivimey (Reid and Riege)
2. [217 downloads] A License is Not a 'Contract Not to Sue': Disentangling Property and Contract in the Law of Copyright Licenses
Christopher M. Newman (George Mason)
6. [116 downloads] Modern Chinese Real Estate Law: Property Development in an Evolving Legal System (Chapter 1)
Gregory M. Stein (Tennessee)
April 30, 2012
How to Talk About Buildings
The N.Y. Times runs a breezy piece designed to give some basic fluency with architectural terms. Learn the difference between a bay window and an oriel.
Did We Invent the Idea of "Home"
Verlyn Klinkenborg meditates on the meaning of "home" throughout human history:
For much of the earliest history of our species, home may have been nothing more than a small fire and the light it cast on a few familiar faces, surrounded perhaps by the ancient city-mounds of termites. [But] homesick children know how sharp the boundary between home and not-home can be because they suffer from the difference, as if it were a psychological thermocline. I know because I was one of them. I felt a deep kinship almost everywhere in the small Iowa town I grew up in. But spending the night away from home, at a sleepover with friends, made every street, every house seem alien. And yet there was no rejoicing when I got back home in the morning. Home was as usual. That was the point. . .
(HT: Daily Dish)
Gergen, Golden, and Smith on Permanent Injunctions
Mark Gergen (Berkeley), John Golden (Texas), & Henry Smith (Harvard) have posted The Supreme Court's Accidental Revolution? The Test for Permanent Injunctions (Columbia) on SSRN. Here's the abstract:
A brusque opinion by the U.S. Supreme Court in a patent case has launched a revolution in the law of equitable remedies. The Court’s opinion in eBay Inc. v. MercExchange, L.L.C. asserted that it was merely upholding “traditional principles” regarding when injunctions should issue. But in circuit after circuit and for subject matter ranging from federal constitutional law to state tort law, lower courts have understood eBay to abrogate longstanding approaches. Focusing on the law for permanent injunctions, this Article examines the eBay opinion and the far-reaching changes that have resulted. For a better perspective on these changes, this Article discusses how courts historically have addressed equity’s traditional concerns with risks of irreparable injury and the balance of hardships. Finally, this Article provides a normative account of the structured sets of equitable presumptions and safety valves that current understandings of eBay threaten to sweep aside.