March 22, 2013
The Tragedy of the Commons: Picture Edition
From National Geographic Magazine:
A forest of derricks rises beyond a Signal Hill, California, neighborhood in this photo from the June 1941 National Geographic. Oil had been discovered there just 20 years earlier. The caption accompanying this photo notes: “If one man drills and strikes oil, his neighbor at once drills, too, lest the first drain the pool.” Today the area’s Long Beach oil field is much depleted, but it still yields more than a million barrels a year. [...] Some of the houses pictured are still standing, but no derricks compete with the palm trees there anymore.
(HT: Noha El Maraghi)
Who Owns Your Phone?
Wired's Kyle Wiens argues that copyright is ruining our ability to really own physical things:
Who owns our stuff? The answer used to be obvious. Now, with electronics integrated into just about everything we buy, the answer has changed. We live in a digital age, and even the physical goods we buy are complex. Copyright is impacting more people than ever before because the line between hardware and software, physical and digital has blurred. The issue goes beyond cellphone unlocking, because once we buy an object — any object — we should own it. We should be able to lift the hood, unlock it, modify it, repair it … without asking for permission from the manufacturer.
But we really don’t own our stuff anymore (at least not fully); the manufacturers do. Because modifying modern objects requires access to information: code, service manuals, error codes, and diagnostic tools. Modern cars are part horsepower, part high-powered computer. Microwave ovens are a combination of plastic and microcode. Silicon permeates and powers almost everything we own.
This is a property rights issue, and current copyright law gets it backwards, turning regular people — like students, researchers, and small business owners — into criminals. Fortune 500 telecom manufacturer Avaya, for example, is known for suing service companies, accusing them of violating copyright for simply using a password to log in to their phone systems. That’s right: typing in a password is considered “reproducing copyrighted material.”
(HT: Andrew Sullivan)
March 21, 2013
Brooklyn Law School Starts Real Estate Finance Blog
Here's the meat of the announcement from Brooklyn:
Brooklyn Law School is pleased to announce the launch of REFinBlog.com, a collaborative effort between Professors Brad Borden and David Reiss and Brooklyn Law School students, focused on tracking the latest law and practice developments in the rapidly changing field of real estate finance.
REFinblog.com provides timely and indispensable insight, analysis and commentary on the latest news and cases in the real estate finance arena, with an emphasis on securitization. Currently focused on litigation arising from the 2008 financial crisis, REFinblog.com provides information about “upstream” litigation (lawsuits against underwriters, promoters, and other market actors), “downstream” litigation (bankruptcy and foreclosure cases brought by and against homeowners) as well as other timely information about related tax and regulatory actions.
Van Erp on the Development Towards a European Property Law
Sjef Van Erp (Maastricht - Netherlands) has posted From Euratom Property Law to European Union Property Law: A Concise Overview of the Development towards a European Property Law on SSRN. Here's the abstract:
The Euratom Treaty contains its own property law regime regarding fissile materials. This regime can be considered as a first attempt at creating a European (i.e. non-national) property law. In thiis paper a concise overview is given of how such a truly European property law is now gradually developing further.
March 20, 2013
The First Circuit Weighs in on MERS
From Joe Singer's blog:
State courts have disagreed about whether MERS (Mortgage Electronic Registration Systems) has standing to foreclose on property or to assign whatever interest it has in the mortgage to the bank that holds the mortgage currently so that that bank can bring foreclosure proceedings. Some courts have held that MERS has no property interest in the mortgage but is a mere agent for the mortgage owner so it cannot bring foreclosure proceedings itself or assign the mortgage to anyone else. [...] But others have held that MERS may initiate foreclosure proceedings in its own name and/or assign the mortgage to someone else.
In Culhane v. Aurora Loan Servs. of Neb., — F.3d —, 2013 WL 563374 (1st Cir. 2013), the First Circuit, applying Massachusetts law, has now held that MERS may assign mortgages because it does own a legal interest in the mortgage. In an opinion by Judge Selya, the court held that MERS has the “legal interest” in the mortgage because it is named as the mortgagee but that the bank that actually issued the note and has the right to enforce the mortgage to secure the loan has the “beneficial interest” in the mortgage. The court reasoned that the party that owns the note or is entitled to enforce it (not necessarily the same party) has the equitable right to the protection of the mortgage giving it a right to foreclose and that MERS is merely holding title to the mortgage for the benefit of that party. At the same time, MERS has a sufficient interest to hold the mortgage title for the benefit of the owner of the “beneficial interest” in the mortgage. It is not clear if that would mean that MERS could bring foreclosure proceedings in its own name or that means that the right to foreclose cannot be separated from rights in the note.
Poirier on the Cultural Meaning of Homeownership in Brazil and USA
Marc Poirier (Seton Hall) has posted Brazilian Regularization of Title in Light of Moradia, Compared to the United States’ Understandings of Homeownership and Homelessness (Miami Inter-American Law Review) on SSRN. Here's the abstract:
Essay considers the cultural resonances of regularization of title
(regularização) for homeownership in the favelas of Rio de Janeiro. It
compares those resonances to the cultural meaning of homeownership in
the United States. Brazil’s approach is informed by an understanding of
moradia, a right to dwell someplace, that is a far cry from its typical
English translation as a right to housing. Brazil also draws on
constitutional provisions and a long Latin American tradition concerning
the social function of property, as well as a general theoretical
understanding of the right to the city and of cidadania, a certain kind
of citizenship. All of these frames construct homeownership as a gateway
to interconnection and full participation in the life of the city. This
is distinctly different from the individualistic cast of the prevailing
understanding of homeownership in the United States, as personal
success and the achievement of wealth, status, and a private castle.
The Essay also considers the standard United States construction of homelessness, which again tends to frame the issue in terms of individual responsibility or blame or of the role of institutional structures as they affect individuals, and typically fails to recognize the effect of having no property on relationships and interconnectedness and ultimately citizenship. The Essay advances five reason for the differences between Brazilian and United States understandings of homeownership. These include very different histories concerning the distribution of public lands; the absence in United States property jurisprudence of anything like the notion of a social function of property; the physical invisibility of informal communities in the United States; United States jurisprudence’s rejection of vague, aspirational human rights claims as law; and an insistence in United States jurisprudence on legal monism and an abstract, universalizing account of property ownership that valorizes one-size-fits-all law rather than case-by-case accounts of how land and dwellings are managed by various local communities.
Finally, the Essay observes a recent groundswell of United States scholarship that debunks “A own Blackacre” as an adequate account of the ownership of land and homes, insisting on a more race- and class-informed account as to both the history of homeownership and possible solutions for providing secure dwelling for the poor. The Essay recommends a convergence of studies of informal communities worldwide with a more nuanced, race- and class-informed understanding of homeownership.
March 19, 2013
Why Does Title Insurance Cost So Much?
The New York Times asks if title insurance premiums are too high and whether competition in the title insurance market is too constrained:
Borrowers don’t often pay much attention to the title insurance required by their mortgage lender — until they see the sizable charge for it on their list of closing costs. [...]
Yet for years, a debate has raged as to whether premiums are too high, competition too constrained, and the insurers too closely intertwined with the mortgage and real estate professionals who send business their way. [...]
Borrowers typically rely on their mortgage broker or real estate agent to select a title agent for them, but Mr. Castellanos says they are better off making the selection themselves. He advises borrowers to ask a real estate lawyer to recommend an independent title company, and to avoid title agencies that have a business affiliation with the real estate agency or lender recommending them.
Kochan on the Primacy of Property in Anglo-American Law
Donald Kochan (Chapman) has posted The Property Platform in Anglo-American Law and the Primacy of the Property Concept (Georgia State) on SSRN. Here's the abstract:
Article proposes that the property concept, when reduced to its basic
principles, is a foundational element and a useful lens for evaluating
and understanding the whole of Anglo-American private law even though
the discrete disciplines — property, tort, and contract — have their own
separate and distinct existence.
In this Article, a broad property concept is not focused just on things or on sticks related to things but instead is defined as relating to all things owned. These things may include one’s self and all the key elements associated with this broader set of things owned — including the right to exclude, ownership, dominion, authority, and the sic utere maxim — normally segregated to our discussions of property law but that should be considered equally necessary to contract and tort law.
In examining these property concepts, this Article goes further to contend that ownership in the self has a vital place in the property discussion. Every legal system must decide the level of protection or recognition of property in the self before it can make any decision on what rules to create in relation to real property, tort or contract. The rules in all three develop on their own but each can be measured from their consistency or deviation from a starting base of absolute property ownership in the self. Once we understand that the platform for each of these areas of law is based in the property concept, so too can we then have a metric for discussion to evaluate deviations from pure property principles that develop in each doctrine (or separate discipline) thereby allowing us to also isolate the most unique characteristics attributable only to a discrete subject like contract or tort. But understanding that the property concept is at the base of all three legal species — property, contract and tort — is nonetheless the necessary starting point for an understanding of any of them.
March 18, 2013
Does the Rule Against Perpituities Apply to City Permits?
The N.Y. Times reports that the owners of Madison Square Garden are asking New York City to renew "in perpetuity" the permit that allows them to operate an sports facility atop Penn Station, the country’s busiest transit hub.
Hopefully someone up there will see that this is a terrible idea. In addition to the problem that it's impossible to know how conditions in the city will change over the next 10 or 20 or 50 years, approving the request would cement the monstrously ugly Garden on the landscape and permanently consign the millions of commuters who use Penn Station to a cramped and lightless entrance to the city.
Today's Architecture Moment: Toyo Ito WIns Pritzker Prize
Here's a slideshow of his work.
Map of the Day: The Luck of the Irish
The map below approximates "the percentage of bars and restaurants in the city that are Irish pubs. By combing through Open Street Map, Wikis, Facebook, and other open-source data, the algorithm selects both establishments that self-identify as Irish or Celtic and those that have spawned talk of, say, Guinness on social media."
Balganesh on Gandhi and Copyright Pragmatism
Shyamkrishna Balganesh (Penn) has posted Gandhi and Copyright Pragmatism on SSRN. Here's the abstract:
Mahatma Gandhi is revered the world over for his views on freedom and non-violence, ideas that he deployed with great success during India’s freedom struggle. As a thinker, he is commonly believed to have been a moral perfectionist: anti-utilitarian in mindset and deeply skeptical of market mechanisms. Yet, when he engaged with the institution of copyright law during his lifetime — as a writer, editor, and publisher — his approach routinely abjured the idealism of his abstract thinking in favor of a lawyerly pragmatism. Characterized by a nuanced, internal understanding of the institution and its conflicting normative goals, Gandhi’s thinking on copyright law reveals a reasoned, contextual, and incremental transformation over time, as the economic and political circumstances surrounding his engagement with copyright changed. In it we see a dimension of Gandhi’s thinking that has thus far been ignored, emanating from his training as a common lawyer. This Essay traces the development of Gandhi’s views on copyright to show how he anticipated several of the central debates and controversies that are today the staple of the copyright wars, and developed an approach to dealing with copyright’s various problems, best described as “copyright pragmatism.” As an approach that draws on legal and philosophical pragmatism, copyright pragmatism entails a critical engagement with copyright as a legal institution on its own terms, but contextually and with an eye towards its various costs, benefits, and normative goals at each stage of engagement. The Essay then unpacks the analytical moves that copyright pragmatism entails to show how it holds important lessons for the future of copyright thinking and reform.