PropertyProf Blog

Welcome Guest Blogger Marc Roark

I am delighted that Marc Roark will be joining us as a guest blogger.  Marc is a property professor and Director of the Office of Academic Achievement at Savannah Law School.  Before signing on at Savannah, Marc taught at LaVerne, earned an LLM at Duke, and practiced in both Atlanta and New Orleans.  I'm a fan of Marc's work, and look forward to his posts.  His recent Articles include:

• The Contracts Course Survey, forthcoming in J. LEGAL ED. (Feb. 2012).
• Disease, War, and Waste: A Consideration of External Factors on the Trade Fixtures Doctrine Between 1350-1803, forthcoming in 41 CUMBERLAND L. REV. (2012).
• Limited Sales Warranties as an Alternative to Intellectual Property: An Empirical Analysis of the Deterrent impact on consumers of the I-Phone Warranties, DUKE L & TECH. REV. (Fall 2010).
• Groping Along Between Things Real and Things Personal: Defining Fixtures in law and Policy in the UCC, 78 U. CINCINNATI L. REV. 1437 (2010)
• The Real Property Interest in the UCC: Fixtures and Encumbrances, 42 UCC L. J. 197 (2010).
• Loneliness and the Law: Solitude Action and Power in Law and Literature, 55 LOY. L. REV 45 (2009).

Steve Clowney

Ramseyer on the False Promise of Land Reform

Mark Ramseyer (Harvard) has posted The Fable of Land Reform: Expropriation and Redistribution in Occupied Japan on SSRN.  Here's the abstract:

Land reform will not just reduce rural poverty, write development officials. It can raise productivity. It can promote civic engagement. Scholars routinely concur. Land reform may not always raise productivity and civic engagement, but it can - and during 1947-50 in occupied Japan it did.

This account of the Japanese land reform program is a fable, a story officials and scholars tell because they wish it were true. It is not. The program did not hasten productivity growth. Instead, it probably retarded it. The areas with the most land transferred under the program did not experience the fastest rates of productivity growth. They experienced the slowest.

Land reform reduced agricultural growth rates by interfering with the allocation of credit. A tenancy contract is a lease, and a lease is a capital market transaction. By precluding the use of leases, land reform effectively increased the cost of capital, reduced the amount of credit, and reduced the accuracy with which investors could target that credit. Banks provide an obvious alternative source of credit -- and post-land-reform, the areas with the fastest growth rates were those areas with the best access to those banks.

The fable of land reform rests on a fictitious account of pre-war Japan. Scholars assume tenancy rates reflected poverty levels. They did not. Instead, they reflected levels of social capital. Leases were not most common in the poorest communities. Given their character as capital market transactions, they were most common in those communities where investors could turn to social networks to induce farmers to keep their word.

Steve Clowney

In Defense of Price Gouging

Matt Zwolinski, a professor of philosophy at the University of San Diego, has posted this video, which offers a basic economic and moral case in defense of price gouging:

Steve Clowney

(HT: Andrew Sullivan)

Beyer on Digital Property and Estate Planning

Gerry Beyer (Texas Tech) has posted Planning in the Digital Age on SSRN.  Here's the abstract:

Recently, a new subdivision of property has emerged that many people label as “digital assets” such as accounts used for e-mail, professional and personal data backups, banking, investment, and shopping, domain names and web-hosting accounts, social networking accounts, and avatars for online games. While estate planners have perfected techniques to transfer traditional types of property, many estate planners do not address digital assets when preparing their clients’ estates.

This article aims to educate estate planning professionals on the importance of planning for the disposition of digital assets, provides those planning techniques, and discusses how to administer an estate containing digital assets. The appendix contains a sample form which may be used to organize digital assets.

Steve Clowney

New New Amsterdam

Matt Yglesias looks at how rising sea levels will force nations to rethink coastal property:

The idea of essentially damning up New York Harbor sounds extreme, but that's equivalent to what the Dutch did with the Zuiderzee Works and especially the Delta Works projects undertaken after the 1953 flood. Some of the Dutch works are permanent dijks, but others are open sluices that merely shut when storms are coming to block surges. The idea is to in effect shorten your coastline which makes it easier to defend with high walls.

You could imagine something similar at the Arthur Kill and across the Verazano Narrows or even between Sandy Hook and Rockaway. Projects like that wouldn't immunize Staten Island or the beachfront parts of Brooklyn and Queens from storm surges but they would defend Lower Manhattan, the badly flooded Red Hook part of Brooklyn, Long Island City, LaGuardia Airport, and a big swathe of New Jersey.

Steve Clowney

Tirres on Non-Citizens & Property Rights

Allison Brownell Tirres (Depaul) has posted Property Outliers: Non-Citizens, Property Rights and State Power (Georgetown Immigration Law Journal) on SSRN.  Here's the abstract:

In the last decade, state and local governments have passed thousands of laws attempting to regulate immigrants within their boundaries. These regulations have been the subject of much litigation, as well as media attention and legal scholarship. Legal scholars have written extensively on the criminal and employment provisions of such laws, as well as on the general question of whether states can or should have any role to play in immigration law. Missing from most accounts, however, is attention to another common focus of these state and local regulations: property law. When we look at the role that property plays in state immigration regulation, we uncover some surprising and troubling truths. The area is a legal muddle, characterized by incoherent and inconsistent court rulings. These inconsistencies leave significant gaps in the protection of non-citizen property rights, not only for unauthorized immigrants but also for legally resident ones. This article draws much-needed attention to these gaps. It compares the two major areas of state regulation of non-citizen property: real estate and landlord/tenant law. A comparison of case law in these two areas demonstrates that the courts have failed in the last century to create a coherent framework for the assessing the relationship between non-citizens, property, and state power. I argue that the resulting inconsistencies stem, in part, from the failure of the courts to take into account a property perspective. I suggest what a property perspective would look like, drawing in particular on the core principles of alienability, equality and non-discrimination. This article posits that alienage law is a property outlier, since few of the norms of modern property law have been applied to non-citizens. We should be concerned about this fact, not only because of what it says about the weakness of non-citizen rights but also because of its implications for the failed modernization of property law.

Steve Clowney

The Largest Chunk of Undeveloped Property in L.A.

The L.A. Times has a fascinating story on the Corralitas Red Car property, which is the largest piece of undeveloped land in Los Angeles that's zoned for residential use:

The land, a nearly mile-long strip east of the lake, takes about 30 minutes to walk . . . and is only 100 feet wide in some spots. Its canopy of trees blocks the Southern California sun and serves as a sound barrier, with the hollow whir of tires on concrete replaced by chirping birds. [...]

The property was once part of a Pacific Electric streetcar line, which ran from downtown and cut through Silver Lake en route to Glendale and Burbank. Pacific Electric owned two lines, the green car line and the red car line. The red car line was decommissioned in 1955, and the Silver Lake property was returned to its private owner. Since then, at least one owner sought to subdivide the five-parcel lot for development, which is now zoned for duplexes.

More information on the history of the lot can be found here.

Steve Clowney

Osofsky on Litigation Over Oil Extraction and Rights Violations in Nigeria

Hari Osofsky (Minnesota) has posted Climate Change and Environmental Justice: Reflections on Litigation Over Oil Extraction and Rights Violations in Nigeria (Journal of Human Rights and the Environment) on SSRN.  Here's the abstract:

This article uses developments in three cases claiming environmental harm and human rights violations arising from Shell Oil’s operations in Nigeria – brought in the United States, the Netherlands, and Nigeria – to explore the complex intersection of transnational corporate responsibility, environmental justice, and climate change. It considers the nature of environmental rights violations in general and those in Nigeria in particular, the barriers to addressing these problems through law, and the ways in which the problem of climate change intersects with these justice dilemmas. The article takes an interdisciplinary law and geography approach to these issues, analyzing how the way in which we view the nation-state, the multinational corporation, and their interrelationship influences our understanding of the state–corporate relationships in, and justice implications of, these situations. It argues that whether we treat Nigeria and Shell Oil as enclosed, permeable, or enmeshed spaces limits or expands the ways in which these cases might fit into broader environmental justice strategies. The article concludes with an assessment of how future efforts might build upon these cases and this analysis of their implications.

Steve Clowney

Urbanism Goes Boo

City Planner Brent Toderian explains why Halloween is his favorite holiday:

        [I]t's the holiday most dependent on how we design and build our communities.

In city planning and design, there's an old saying about the "Trick-or-Treat Test." It's often brought up in the context in suburban home design: Can kids easily find the front door to your house, or must they poke behind the huge multi-car garage, past the parking asphalt, to ring your bell? Homes that fail this Trick-or-Treat Test aren't exactly welcoming, and not just on Halloween.

Steve Clowney

10 Must-See Campuses for Fall Foliage

Schools.com picks its top-ten fall-worthy campuses.

Steve Clowney

Sprankling on the Property Jurisprudence of Justice Kennedy

John Sprankling (McGeorge) has posted The Property Jurisprudence of Justice Kennedy (McGeorge Law Review) on SSRN.  Here's the abstrac:

Scholars have largely neglected Justice Kennedy’s property jurisprudence, a surprising omission given his pivotal role on the Supreme Court. This essay explores three aspects of his jurisprudence which distinguish him from other current Justices: (1) his tendency to approach property disputes from the perspective of liberty; (2) his effort to address the tension between natural law theory and legal positivism in defining “property”; and (3) his attempt to resist the expansion of regulatory takings jurisprudence by channeling some disputes toward resolution under the Due Process Clause.

Steve Clowney