Friday, February 24, 2012
The Atlantic has an informative piece for anyone who teaches Ghen v. Rich (or loves the sea). The magazine has a fun, info-packed take on the rise and fall of the whaling industry in America:
One hundred and fifty years ago, around the time Herman Melville was completing Moby Dick, whaling was a booming worldwide business and the United States was the global behemoth. In 1846, we owned 640 whaling ships, more than the rest of the world put together and tripled. At its height, the whaling industry contributed $10 million (in 1880 dollars) to GDP, enough to make it the fifth largest sector of the economy. Whales contributed oil for illuminants, ambergris for perfumes, and baleen, a bonelike substance extracted from the jaw, for umbrellas.
Fifty years later, the industry was dead. Our active whaling fleet had fallen by 90 percent. The industry's real output had declined to 1816 levels, completing a century's symmetry of triumph and decline. What happened? And why does what happened still matter?
Water Rights, Markets, and Changing Ecological Conditions (Environmental Law) on SSRN. Here's the abstract:
Conventional environmentalist thought is suspicious of private markets and property rights. The prospect of global climate change, and consequent ecological disruptions, has fueled the call for additional limitations on private markets and property rights. This essay, written for the Environmental Law Symposium on 21st Century Water Law, presents an alternative view. Specifically, this essay briefly explains why environmental problems generally, and the prospect of changing environmental conditions such as those brought about by climate change in particular, do not counsel further restrictions on private property rights and markets. To the contrary, the prospect of significant environmental changes strengthens the case for greater reliance on property rights and market institutions to address environmental problems, such as the management of fresh water resources.
Thursday, February 23, 2012
Here's a good story to show students the importance of careful and diligent title searching. For years a huge, boarded-up building has sat vacant near the Staples Center in downtown L.A. As the rest of the neighborhood gentrified, the shell at 1130 S. Hope St. remianed unused and unloved. Why didn't developers snatch up this parcel?
"The problem was figuring out who owned it," said Homer Williams, one of the developers of the 19-story Luma residential high-rise next door.
City officials later hoped to raze the building at 1130 S. Hope St. to make a public park, but also had difficulty figuring out who held its title as competing parties claimed control. The picture was complicated by more than a dozen liens from contractors, developers, lawyers and others who did work involving the building.
Enter Kevin Burke, a retired life insurance salesman from Manhattan Beach who managed to work through the title disputes and negotiate a complex $2.1-million transaction last year that got him the keys.
The Design Problem in Planned Communities on SSRN. Here's the abstract:
Planned communities are a dominant form of development, both in suburban areas and as infill in urban settings. Planned communities can be clusters of homes with common open space or master-planned communities covering thousands of acres, but in any form they provide opportunities for excellent design. This is the first chapter in a book that reviews the concepts and ideas that go into the design of planned communities, and explores how local governments can encourage and provide for their good design through land-use regulation.
Wednesday, February 22, 2012
David Bernstein gives an update on the recent Fair Housing Act case our of the Ninth Circuit:
When I blogged about the Roommates.com case recently, I pointed out the Ninth Circuit seemed to assume that if discriminating in one’s choice of roommates is legal, it would also be legal to advertise a discriminatory preference. I suggested that this wasn’t so clear. Some commentors thought it was absurd to suggest that HUD would try to penalize expressing discriminatory roommate preferences when advertising for a roommate, given that the underlying discrimination is both legal and protected by the constitutional right to intimate association. But here is what HUD’s website has to say:
It is illegal for anyone to "Advertise or make any statement that indicates a limitation or preference based on race, color, national origin, religion, sex, familial status, or handicap. This prohibition against discriminatory advertising applies to single-family and owner-occupied housing that is otherwise exempt from the Fair Housing Act."
A Legal Analysis of Romantic Gifts on SSRN. Here's the abstract:
While many law review articles are devoted to the legal analysis of gifts, this article addresses romantic gifts in particular, to which many legal exceptions apply. In addition to offering a review of the legal economics behind gift-giving, this article is the first to survey the five legal theories of revocability for romantic gifts, as well as an unprecedented new theory recently employed in federal court.
Although the general presumption is that gifts are irrevocable, courts have used five main theories to return romantic gifts to their donors — conditional gift, pledge, consideration, unjust enrichment, and fraud — as well as a new approach which has actually been used recently in federal court: criminal fraud. Criminal fraud is a surprising and unprecedented development because it not only requires the disgorgement of the gifts as the other theories do, but also punishes the donee beyond the cost of the gift. Thus, it is the only theory of revocability that will change the ex ante incentives of the donee.
In the course of discussion, this article will note three economic paradoxes that arise in the context of romantic gifts: (1) non-cash gifts appear on first glance to be extremely inefficient because it involves guessing the desires of donees, but are nonetheless ubiquitous; (2) extremely inefficient gifts tend to be better signaling mechanisms than efficient gifts in romantic relationships; and (3) although one who pursues a relationship blatantly for financial benefits faces more social condemnation than one who tastefully hides her motivations, she or he is actually facilitating a more efficient relationship. This leads to a discussion of when romantic gifts should be revocable, which theories of court interference are the most appropriate, and how courts should craft doctrine in the future. Because of the potential of over-deterrence, courts should only impose punishments that exceed the value of the gift when there is a clear enough information asymmetry between the donor and the donee that it would be impossible for the donor to give his informed consent to the relationship or the gift.
Tuesday, February 21, 2012
The Atlantic has a fun slideshow of the world's most unique manhole covers:
Mundane by their very nature, manhole covers don't necessarily stand out to us while we walk or drive over them (although sometimes their simplistic appearance leads to interesting urban art). On occasion though, municipalities and even private property owners see the value of using the manhole cover as a unique way to help establish the identity of its surroundings.
Turns out we're not the only ones who are intrigued by the possibilities these underfoot pieces of infrastructure provide: there's even a Flickr pool with over 14,000 entries of manholes from around the world.
Inside Property (Toronto Law Journal) on SSRN. Here's the abstract:
Taking seriously the complexity and heterogeneity of property law, this Essay claims that a proper conception of property must account for both governance and inclusion. Neglecting governance obscures the significance of the internal life of property, which is often structured by sophisticated mechanisms aiming to facilitate various forms of interpersonal relationships in ways that no contractual arrangement can. Ignoring inclusion improperly marginalizes non-owners’ rights to entry in categories of cases where inclusion is an indispensable feature of the property institution under examination.
Looking inside property in these two senses requires abandoning the conception of property as an exclusive right and substituting it with a pluralist conception. Property should be understood as an umbrella for a limited and standardized set of institutions, which serve as important default frameworks of interpersonal interaction regarding various types of resources. At its best, the plurality of property configurations — the different contents of owners’ rights in these different property institutions — enables property law to vindicate differing balances among the different values that property can serve, according to the type of social relationship and the nature of the resource at stake. The pluralist conception of property, therefore, not only fits property law better; it is also the only understanding of property suitably attending to and facilitating the individuality-enhancing role of multiplicity, which is indispensable for meaningful autonomy.
Monday, February 20, 2012
Christopher Mims profiles L. Brooks Patterson, the county executive of Oakland County, Michigan and the country's most vocal advocate of urban sprawl:
Let’s stop the hysteria and honestly ask ourselves what is sprawl? “Sprawl” is the unfortunate pejorative title government planners give to economic development that takes place in areas they can’t control. In reality, “sprawl” is new houses, new school buildings, new plants, and new office and retail facilities. “Sprawl” is new jobs, new hope and the fulfillment of lifelong dreams. It’s the American Dream unfolding before your eyes.
Exclusion and Legal Theory: A Comment on Property as the Law of Things on SSRN. Here's the abstract:
This Comment responds to an article by Professor Henry Smith, “Property as the Law of Things,” forthcoming in a symposium sponsored by the Harvard Law Review on “The New Private Law Theory.” In his lead Article, Professor Smith critiques what he calls the “bundle” picture of property, which he attributes to Legal Realists. This Comment argues that “Property as the Law of Things” does not go far enough in breaking with Legal Realist theory, because it assumes a social-scientific view of legal theory and an instrumentalist command theory of law.
This Comment draws on private-law and jurisprudential analytical scholarship arguing that the study of law requires attention to law’s internal point of view. From the internal point of view, a comprehensive account of property must acknowledge that property laws are meant to secure and reconcile interests in using external assets – interests of owners and non-owners both. “Property as the Law of Things” is incomplete because its argument abstracts from citizens’ normative interests in using things. Even if the Article’s information-cost efficiency argument is right, that argument does not supply a satisfactory explanation how the law comes to approximate what efficiency prescribes. In addition, the Article portrays important property doctrines -- riparian rights, de minimis building encroachments, and the relation between the “property” and “tort” components of nuisance – unpersuasively, because it abstracts from the connection between property rights and use.