Friday, May 24, 2013
Here’s an interesting set of pictures from photographer Rä di Martino of Star Wars sets that were abandoned in Morocco and Tunisia. Through the decades there have been various efforts to save these landmarks, but for the most part they continue to decay.
Susan Bright (Oxford) and Nick Hopkins (Southampton) have posted Evaluating Legal Models of Affordable Home Ownership in England (Book Chapter) on SSRN. Here's the abstract:
this chapter we analyze the legal routes used to deliver Low Cost Home
Ownership in England where there is some element of public subsidy
involved. In order to evaluate the various products used for LCHO
(right to buy, part-ownership, co-operative housing models), this
a) Explains the legal frameworks used to deliver the main LCHO products available in England;
b) Explores the potential benefits of home ownership to the individual in the form of wealth creation, "mainstreaming" and security of place;
c) Sets out key additional policy objectives of LCHO, in particular introducing and supporting tenure mix (sustainable communities) and sustaining the opportunity for continued use of the subsidy to provide access to LCHO for intermediate income households; and
d) Evaluates the extent to which the different products available deliver both the individual benefits of home ownership and support the wider policy objectives.
Thursday, May 23, 2013
David Schorr, writing at the new blog Environment, Law, and History has some insightful things to say about how our conceptions of property and the environment have changed over time. Schorr focuses on water law in the U.S. and in struggle between Israelis and Palestinians over natural resources.
Joseph Dellapenna (Villanova) has posted A Primer on Groundwater Law (Idaho) on SSRN. Here's the abstract:
greater part of fresh water on the planet Earth is under ground and most
of that qualifies as "groundwater" in the sense of water available to
be pumped to the surface for human exploitation or consumption. This
water is subject to a wide range of conditions of occurrence that
reflect the great variations in porosity and permeability of the earth’s
crust. Its rapidly growing importance as a source of water for
agricultural, ecological, industrial, and municipal use around the world
has resulted in the major actors in water politics and policy have
debated the issues and problems involved in the development and use of
The creation, by courts in the United States and England of the common law of ground-water in the nineteenth century was steeped in ignorance. This problem was perhaps best ex-pressed in the Ohio decision of Frazier v. Brown, in which the court stated that "the existence, origin, movement and course of such waters, and the causes which govern and direct their movements, are so secret, occult and concealed, that an attempt to administer any set of legal rules in respect to them would be involved in hopeless uncertainty, and would be, therefore, practically impossible" (emphasis added). To scientists, the relationship of groundwater to surface waters now is a well-known fact. Unfortunately for the future congruity of law and science, the courts in most jurisdictions had spoken of the early common law decisions as rules of property. Courts therefore were reluctant change the rules to bring them into conformity with later scientific knowledge. Yet the explosive growth of groundwater extraction made possible by the high-pressure centrifugal pump created crises in some areas where groundwater demand out-stripped groundwater supply. Eventually, most courts and legislatures became more willing to define the relations of parties concerning their interests in groundwater consistently with recognized scientific knowledge of hydrology and geology.
Because of the relatively recent emergence of groundwater as a field of scientific knowledge and of large-scale economic exploitation, as well as concern over the unsettling of property rights, the law relating to groundwater long remained relatively undeveloped and exhibited considerable confusion. As Mark Goodman, commenting on the state of groundwater law in Arizona in 1978, summed it up, "The history of [groundwater law] is as thrilling as ignorance, inertia, and timidity could have made it." Not the least of the continuing disconnects between water science and water law is the continuing application, in most states, of different bodies of law to surface waters and to groundwater even though they are all part of single hydrologic cycle. This approach carries over to groundwater itself where the rule persists that water flowing in an underground stream is subject to the law applicable to surface waters, while "percolating" groundwater (water seeping through interstices in the soil or rock) is subject to the law applicable to groundwater. This article discusses only the law applicable to groundwater as so narrowly conceived, and in particular to the law allocating groundwater so narrowly conceived to particular users and uses. Today there are five different theories for allocating percolating groundwater to particular users, theories that are reviewed in this article: 1) Absolute dominion (also called "absolute ownership" or "the rule of capture"); 2) Correlative rights; 3) The reasonable use rule; 4) Appropriative rights; and 5) Regulated riparianism.
Wednesday, May 22, 2013
Fracking continues to kick-up property issues:
The practice has its roots in the early days of the drilling boom, when companies from around the world began leasing land as fast as they could -- locking the property into five-year deals that kept competitors at bay. Then, as drilling picked up, the increased supply of natural gas led to a record-setting drop in prices.
Suddenly, it wasn't as easy to turn a profit on a well. Many companies pulled out of neighborhoods where rigs had been planned, leaving those leases behind in the process. That left many landholders unsure when -- if ever -- they'd see a well on their property that would bring a steady stream of royalty checks with it.
The investment firms moving into the region are offering to buy those left-behind mineral rights. Landowners get money for that vacation home today, and the investment firm gets access to the royalty payments that may -- or may not -- come later.
If there's one word associated with the practice, it's risk -- risk for the company that might acquire useless mineral rights, and risk for the landowner who could miss out on lucrative royalty payments in the future.
Dustin Zacks (King, Nieves & Zacks PLLC) has posted Avoiding Insult to Injury: Extending and Expanding Cancellation of Indebtedness Income Tax Exemptions for Homeowners (Arkansas Law Review) on SSRN. Here's the abstract:
article offers a critical analysis of anti-homeowner arguments that have
arisen in the wake of the enactment of the Mortgage Forgiveness Debt
Relief Act of 2007 (MFDRA), which excludes forgiven principal residence
indebtedness from generating federal income tax liability. Some argue
that forgiveness encourages housing speculation and overconsumption or
benefits wealthy homeowners more than homeowners of moderate means,
while others suggest that forgiveness is not fair to homeowners who paid
such taxes prior to Congress’s exemption being enacted.
This article asserts that such criticisms, even if facially valid, are overstated and do not overcome the importance of eliminating existing homeowner incentives to file bankruptcies in order to avoid cancellation of indebtedness income tax. Furthermore, excluding cancellation of indebtedness income tax prevents disincentives to homeowners from seeking to modify their home loans. Aside from addressing scholarship regarding the temporary Congressional exclusion of principal residence indebtedness, this article also proposes an expansion of the permanent exclusions to cancellation of indebtedness taxation in the Internal Revenue Tax Code (the Code). In particular, the existing purchase-price exception to cancellation of indebtedness taxation should be expanded.
Because the purchase-price exception only applies to original lenders negotiating with original purchasers, the exemption has effectively been eliminated for a large portion of homeowners whose loans have been sold on the secondary market. This article argues that the theoretical justifications for the purchase-price exception should apply whether or not a home loan has been sold, as homeowners exercise no control over whether their loans are transferred from lender to lender. The Code already allows for subjective considerations of infirmity and impropriety at origination to equitably justify the purchase-price exception, and this article asserts that such considerations should be even more closely examined in light of the wildly inflated property values and subprime and exotic loans presented to homeowners at the height of the bubble. Therefore, even without a permanent extension of the MFDRA’s temporary exemption, expanding the purchase-price exemption would provide homeowners with incentives to renegotiate their home loans or to negotiate walkaways rather than filing for bankruptcy.
Tuesday, May 21, 2013
Emily Badger reports:
[O]ver the last decade, suburbs have increasingly become home to America's poor. Between 2000 and 2011, the population living in American cities below the poverty line increased by 29 percent. During that same time, across the country in the suburbs of metropolitan areas as diverse as Atlanta and Detroit and Salt Lake City, the ranks of the poor grew by 64 percent. Today, more poor people live in the suburbs (16.4 million of them) than in U.S. cities (13.4 million), despite the perception that poverty remains a uniquely urban problem.
Jennifer Arlen (NYU) and Stephan Tontrup (Max Planck Institute) have posted A Process Account of the Endowment Effect: Voluntary Debiasing Through Agents and Markets on SSRN. Here's the abstract:
We contest the loss aversion theory of the endowment effect, in which the effect depends on the status of endowment alone. Instead, we propose that the nature of the trading process determines whether people resist or accept an exchange by affecting the responsibility people feel for their choice. The more they feel responsible for the decision, the more they expect experiencing regret over a negative outcome. Aversion to regret causes people to resist a rational trade and exhibit the endowment effect. In a series of experiments, we analyze two institutions that alter the trading process and reduce perceived responsibility --agency and markets. We find that both mute the endowment effect; moreover, participants intentionally use them to self-debias. Since many institutions shift responsibility, we conclude that the endowment effect is not present in many domains previously thought to implicate it. Institutional design often need not rely on paternalistic intervention.
Monday, May 20, 2013
A reminder that not everyone loves Business Improvement Districts:
A Los Angeles Superior Court judge has ordered the Arts District Business Improvement District to dissolve, capping a long feud between the entity and a group of property owners. The BID has already halted its privately funded cleaning and safety program in the area.
The May 10 order from Judge Robert H. O’Brien is a victory for a group of Arts District property owners who argued in a lawsuit that the BID broke state law in its formation and therefore is invalid.
O’Brien’s order centered on his finding that the BID spent tax dollars on economic development services that did not provide a special benefit to area property owners.
“Our claim was basically that the constituency in this district is very diverse, and to claim you’re helping both industrial owners and loft owners and residents, there’s no coherent way to have an agenda to help everyone,” said developer Yuval Bar-Zemer, one of the property owners who brought the case against the city.
Slate has a captivating piece on "foundling tokens."
During the 18th century, mothers who left their babies at London’s Foundling Hospital would deposit something small, but unique, with the hospital to serve as an identifier in the event parents returned to reclaim their children. These “tokens”—scraps of fabric, small metal objects, or bits of jewelry—were sealed in the child’s official record as proof of the parental connection, even as the babies themselves were renamed and vanished into the institution.
Some tokens seem to be repurposed sentimental objects from love affairs, like the ring with a heart inset, which has a poignant inscription on the interior of the band: “He who neglects me loses me.” [...] Some tokens were humble everyday objects, like the hazelnut and the fabric heart: exceedingly simple and slight, given the connection they were meant to signify.
The tradition of leaving tokens ended in the early 19th century, when the hospital began to follow the much more efficient—albeit prosaic—procedure of issuing receipts to mothers who surrendered their children.
Christopher Yoo (Penn) has posted Beyond Coase: Emerging Technologies and Property Theory (Penn) on SSRN. Here's the abstract:
addition to prompting the development of the Coase Theorem, Ronald
Coase’s landmark 1959 article on The Federal Communications Commission
touched off a revolution in spectrum policy. Although one of Coase’s
proposed reforms (that spectrum should be allocated through markets) has
now become the conventional wisdom, his other principal recommendation
(that governments stop dedicating portions of the spectrum to particular
uses) has yet to be fully embraced. Drawing on spectrum as well as
Internet traffic and electric power as examples, this Article argues
that emerging technologies often reflect qualities that make defining
property rights particularly difficult. These include the cumulative
nature of interference, the presence of significant interdependencies,
and the presence of significant geographic discontinuities in
interference patterns, exacerbated by the localized nature of
information. These technological considerations define the natural
boundaries of property by creating transaction-free zones that must be
encompassed within a single parcel. They also complicate defining
property rights by making it difficult to identify and attribute harm to
particular sources of interference. These challenges can make
governance a more attractive solution than exclusion.
Other commentators have suggested that the failure of creating well-defined property rights in spectrum support wider use of open access regimes, citing the work of Elinor Ostrom and Michael Heller, or arguing that spectrum is not scarce. Ostrom’s work points out that governance of common property requires features that are quite inconsistent with open access, including a finely tailored and unequal allocation mechanism, strict internal monitoring, strong property protection to prevent outside interference, stability, and homogeneity. Heller’s theory of the anticommons is sometimes misinterpreted as being hostile towards property. Instead, it is better understood as condemning giving exclusionary rights in the same piece of property to multiple owners, all of whom must agree on any major decision. The primary solution to the anticommons is not open access, but rather unitization of the interests in a single owner. Moreover, bargaining over an anticommons is also properly modeled through the chicken (or snowdrift) game, which has more of a zero-sum, all-or-nothing quality, rather than opportunities for cooperation frustrated by a lack of trust that characterize the prisoner’s dilemma and traditional holdout behavior. The final argument, that spectrum is not scarce, simply cannot be squared with Shannon’s Law.
Instead the solution may lie in reconfiguring rights to increase owners’ ability to bargain towards workable solutions. A market maker controlling sufficient property and able to integrate local information could design a mechanism that can solve some of these problems. Property could also be reconfigured to provide more of the primitives needed to write effective contracts. Finally, these challenges, as well as the need to reduce information costs on third parties, provide an explanation for the persistence of use restrictions. In addition, continuing the fiction of government ownership of the spectrum may make it easier to reconfigure rights when necessary.