Friday, March 29, 2013
The New York Times profiles Dennis Hope, who has "built a thriving business by “selling” land plots in space, on places like the moon, Mars and Venus. Of course, he has no legal authority to do so. How does he get away with this? He told me that, back when he was a ventriloquist in the days before he “owned” the moon, his dummy taught him a valuable lesson: you can say anything you want to anybody as long as you smile."
Amnon Lehavi (Radzyner School of Law - Israel) has posted The Corporation as a Nexus of Property on SSRN. Here's the abstract:
study of property is thriving. Having been long dominated by a
disintegrative approach building on the bundle of rights concept,
property scholarship is reintroducing essentialist models, with the
right to exclude featuring prominently as property’s core.
While the new essentialism school studies various resources, from land to intellectual property, largely missing from its accounts is the most prominent source of wealth: the business corporation. Whereas corporate law theory is increasingly looking beyond the “nexus of contracts” model to illuminate the firm’s proprietary foundations, property theory has yet to fit the business corporation into its newly integrative framework.
The Article argues that this deficiency is not merely a coincidence. In many ways, the business corporation undermines the paradigms of current property theory. To start with, the underlying notion of divorce of ownership from control in the business corporation seems antagonistic to the owner’s right to exclude in property. In addition, while property theory recognizes the need to pool together resources and overcome collective action problems, conventional models of property governance, such as residential community associations, seem alienated from the power relations and vertical authority within the business firm. Specifically, the setting of a majority shareholder enjoying a control premium alongside owing fiduciary duties to dispersed minority shareholders is allegedly at odds with the horizontal governance assumption in contemporary property paradigms.
This dissonance does not release, however, property theory from accounting for the core features of the business corporation. Moreover, the Article argues that once we move from a model of substantive essentialism to one that identifies the institutional and structural traits of property, then the corporation becomes a much better fit for property theory. This shift sets the ground for reconceptualizing the firm as a “nexus of property.”
Thursday, March 28, 2013
Dennis Wood is a geographer who has mapped nearly every aspect of his neighborhood in Raleigh, North Carolina: street signs, sewer lines, the mailman's route, power lines, fallen autumn leaves. Examined together, the maps create strange multi-layered story about the place Wood calls home. For example, the picture above is Wood's map of all the jack-o-lanterns in his neighborhood. Wood goes on to explain that:
the pumpkins are more then what appears to just be an aesthetic look at his neighborhood, but more a socio-economic study. with these pumpkins, he did a study comparing the people who were more active in the neighborhood association and those who were not. the pumpkins can be seen as signifiers of those who were more respected in the community as the people who are more renown had more pumpkins on their porch then their neighbors who were not involved, and also happened to live in the less wealthy portions of the neighborhood.
Lee Fennell (Chicago) has posted Crowdsourcing Land Use (Brooklyn Law Review) on SSRN. Here's the abstract:
Land use conflicts arise from information shortfalls, and avoiding them requires obtaining and using information. Yet traditional forms of land use control operate in relative ignorance about landowner intentions, about preferences for patterns of land use that do not presently exist, and, more fundamentally, about land use impacts as they are experienced on the ground. Because information is expensive to gather and use, this ignorance may be rational. New technological and theoretical advances, however, offer powerful ways to harness and deploy information that lies dispersed in the hands of the public. In this symposium essay, I assess the prospects for an increased role for crowdsourcing in managing land use, as well as the limits on this approach. Governments must do more than elicit, aggregate, coordinate, and channel the preferences, intentions, and experiences of current and potential land users; they must also set normative side constraints, manage agendas, and construct appropriately scaled platforms for compiling and using information.
Wednesday, March 27, 2013
Alex Heimbach investigates the issues:
The copyright to works published before 1923 have expired in the U.S. [...] Sherlock Holmes story elements—including Holmes’ deductive skills, his friendship with Watson, and his frequent disguises—mostly appear in pre-1923 stories and have thus passed into public domain with the earlier stories. The estate maintains that the character as a whole remains under copyright until all of the stories are in the public domain. As the Estate’s lawyer, Benjamin Allison, told The New York Times last week, “Holmes is a unified literary character that wasn’t completely developed until the author laid down his pen.”
Legal geography is a stream of scholarship that takes the
interconnections between law and spatiality, and especially their
reciprocal construction, as core objects of inquiry. Legal geographers
contend that in the world of lived social relations and experience,
aspects of the social that are analytically identified as either legal
or spatial are conjoined and co-constituted. The legal geography
scholarship highlights that nearly every aspect of law is either
located, takes place, is in motion, or has some spatial frame of
reference. In other words, law is always “worlded” in some way.
Likewise, every bit of social space, lived places, and landscapes are
inscribed with legal significance. Distinctively legal forms of meaning
are projected onto every segment of the physical world. These meanings
are open to interpretation and may become involved in a range of legal
practices. Such fragments of a socially segmented world — the where of
law — are not simply the inert sites of law, but are inextricably
implicated in how law happens.
This introduction to the forthcoming book The Expanding Spaces of Law: A Timely Legal Geography (Stanford University Press) identifies and elaborates on three modes of legal geographic research. The first mode of legal geography includes disciplinary work in law or in geography that is modeled on the conventional image of import and export. The second is an interdisciplinary pursuit in which scholars in the eponymous fields draw on the work of each other and seek to contribute to the development of a common project. The third mode moves beyond legal geography to trans-disciplinary, or perhaps even post-disciplinary, modes of scholarship. Although these three modes exist concurrently, the general trajectory over time has been from disciplinary to interdisciplinary and, finally, to post-disciplinary orientations. This triadic classification helps organize the rich yet eclectic legal geography scholarship that has evolved over the last thirty years or so. While this introduction contains elements of each mode, it also urges interested scholars to move legal geography beyond the disciplinary boundaries into the horizons of a post-legal geography. Ironically, then, the ultimate success of legal geography will be in its ability to transcend the bi-disciplinary focus that has characterized so much of this scholarship up to this point.
In addition to the introduction, the book consists of ten chapters. In the first three, Keebet and the late Franz von Benda-Beckmann, Mariana Valverde, and Nicholas Blomley identify gaps and obstacles in existing approaches to legal geography scholarship and offer remedies. An important sub-theme in each of these chapters is the importance of being more mindful of the temporalities of social, spatial, and legal phenomena. Authored by Alexandre (Sandy) Kedar and Irus Braverman, the next two chapters ask how a critical comparative legal geography might not only draw upon but also contribute to a rejuvenated project of comparative law and the methodological stakes of legal geography scholarship. The remaining five chapters expand legal geography into new spaces and make new connections. Specifically, Michael Smith, Antonio Azuela and Rodrigo Meneses, Lisa Pruitt, Melinda Benson, and David Delaney develop novel interpretive resources with the aim of enhancing interdisciplinarity, applying these tools to particular kinds of spaces and places: war zones, the street, the workplace, American rurality, and procedural spaces.
Tuesday, March 26, 2013
The unsurprising answer is: Yes. According to Slate, the effect is dramatic:
How much does your property value drop when a registered sex offender lives next door? About 12 percent. According to a study released in 2008, houses located next door to a registered sex offender drop by that much in value. For the average American homeowner, that’s a loss of nearly $21,000, enough money to send a child to private school for two years. [...] The picture gets even bleaker when you consider that sex offenders affect not only the value of adjacent properties, but the value of other homes nearby. On average, homes within a 0.1-mile radius of a registered sex offender drop in value by 4 percent.
Vanity Fair profiles One Hyde Park in London, dubbed the world’s most expensive residential building:
In fact, the emphasis everywhere is on secrecy and security, provided by advanced-technology panic rooms, bulletproof glass, and bowler-hatted guards trained by British Special Forces. Inhabitants’ mail is X-rayed before being delivered.
The secrecy extends to the media, many of whose members, including myself and the London Sunday Times’s and Vanity Fair’s A. A. Gill, have tried but failed to gain entry to the building. “The vibe is junior Arab dictator,” says Peter York, co-author of The Official Sloane Ranger Handbook, the riotous 1982 style guide documenting the shopping and mating rituals of a certain striving class of Brits, who claimed Knightsbridge’s high-end shopping area, which stretches from Harrods to Sloane Square, as their urban heartland.
Donald Kochan (Chapman) has posted Certainty of Title: Perspectives after the Mortgage Foreclosure Crisis on the Essential Role of Effective Recording Systems (Arkansas Law Review) on SSRN. Here's the abstract:
systems for property play a pivotal, market-facilitating role for the
players engaged in any transaction, the judiciary that must resolve
disputes between the players, and others members of the general public
by informing each about the true nature of ownership of the real
property things in the world. This symposium article explores the
essential character of such systems in providing certainty of title, and
takes a tour through the mortgage foreclosure crisis to see where
adherence to and respect for these systems’ roles broke down.
Leading up to the crisis, as securitization became vogue and the housing boom blurred priorities, market participants found every way to avoid using the recording systems unless absolutely necessary. The market substitute to traditional recording, MERS, was well-intentioned but poorly operated. The article explores some of the ways that recording failures contributed to, and concurrently were exacerbated by, the crisis.
Most importantly, this article is a defense of the institution of recording and an examination of the utility of certainty of title. Recording creates a network of information supporting a network of transactions. If we understand that one can transfer only as much property as one has, we should equally understand that such a rule is only useful if we have the means to figure out what one has in the first place – in some authoritative and certain way (including knowing that the courts will come to the same conclusion) such that we can adjust our behavior and arrange our interactions with that property around that knowledge. These truths lie at the heart of the importance of certainty of title and at the core of the justification for the existence of market-facilitating registries or recording systems that document property ownership in society.
Monday, March 25, 2013
Bradley Borden (Brooklyn) & David Reiss (Brooklyn) have posted Cleaning Up the Financial Crisis of 2008: Prosecutorial Discretion or Prosecutorial Abdication? on SSRN. Here's the abstract:
finance professionals play fast and loose, big problems result. Indeed,
the 2008 Financial Crisis resulted from people in the real estate
finance industry ignoring underwriting criteria for mortgages and
structural finance products. That malfeasance filled the financial
markets with mortgage-backed securities (MBS) that were worth a small
fraction of the amount issuers represented to investors. It also loaded
borrowers with liabilities that they never had a chance to satisfy.
Despite all the wrongdoing that caused the financial crisis, prosecutors have been slow to bring charges against individuals who originated bad loans, pooled bad mortgages, and sold bad MBS. Unfortunately, the lack of individual prosecutions signals to participants of the financial industry that wrongdoing not only will go unpunished but will likely even be rewarded financially. Without criminal liability, we risk a repeat of the type of conduct that brought us to the edge of financial ruin.