Wednesday, June 15, 2016
Richard Cupp (Pepperdine) has posted Animals as More Than "Mere Things," but Still Property: A Call for Continuing Evolution of the Animal Welfare Paradigm (University of Cincinnati Law Review) on SSRN. Here's the abstract:
Survival of the animal welfare paradigm (as contrasted with a rights-based paradigm creating legal standing for at least some animals) depends on keeping pace with appropriate societal evolution favoring stronger protections for animals. Although evolution of animal welfare protection will take many forms, this Article specifically addresses models for evolving conceptualizations of animals’ property status within the context of animal welfare. For example, in 2015 France amended its Civil Code to change its description of companion animals and some other animals from movable property to “living beings gifted with sensitivity,” while maintaining their status as property. This Article will evaluate various possible approaches courts and legislatures might adopt to highlight the distinctiveness of animals’ property status as compared to inanimate property. Although risks are inherent, finding thoughtful ways to improve or elaborate on some of our courts’ and legislatures’ animals-as-property characterizations may encourage more appropriate protections where needed under the welfare paradigm, and may help blunt arguments that animals are “mere things” under the welfare paradigm. Animals capable of pain or distress are significantly different than ordinary personal property, and more vigorously emphasizing their distinctiveness as a subset of personal property would further both animal welfare and human interests.
Saturday, June 4, 2016
Under U.S. law there is no property interest in mere facts. But with respect to factual data relating to human genes, a de facto property regime has emerged in all but name. The level of control that individuals have exerted over genetic data exhibits the classic hallmarks of Blackstonian property: the right to exclude, the right to destroy, dead hand control, divisibility, and alienability. This degree of control has arisen through an expansive interpretation of the ethical requirement of informed consent. Notwithstanding the ongoing evolution of federal research regulations that permit some data-based research to proceed without extensive consent requirements, actions sounding in state property law pay little heed to compliance with these regulatory procedures. The resulting property-like regime over genetic data has enabled individuals to bring litigation disrupting and even halting valuable biomedical research and leading to the destruction of valuable research resources.
Looking to Calabresi’s and Melamed’s seminal analysis of property and liability rules, I propose that the property-like treatment of genetic data be replaced by a combination of existing and new regulations of researcher conduct (liability rules) to protect individuals from abusive research practices. This approach would shift the landscape from one in which data-based research cannot occur without the consent of individual research participants, to one in which research is presumptively allowed, but researchers face liability for overstepping the bounds of permitted activity.
Sunday, May 29, 2016
Can property include a right to government regulation? An enormous amount rides on this question. Billions of dollars in transferable development rights, flood and landslide protections, patents, pollution credits, utility service areas, access roads, taxi medallions, and grazing permits: these are some of the valuable interests claimed as rights in regulation. Are they protected property?
This Article answers the question and constructs an overarching framework for evaluating asserted rights in regulation. It determines that courts and legislatures actually recognize some property rights in government regulatory actions. It then synthesizes these authorities to create administrable rules for assessing such claims. In doing so, it integrates and advances disparate strands of property scholarship and provides courts with meaningful guidance for addressing these important issues.
In Regulating Sharing: The Sharing Economy as an Alternative Capitalist System, Professor Rashmi Dyal-Chand challenges the assumption – implicit in the fast-growing legal literature on the “sharing economy” – that companies in this sector operate in the manner of traditional firms. Framing the sharing economy as a “nascent form of a coordinated market economy”, Dyal-Chand calls for regulation rooted in a deeper understanding of the institutions – both the technological platforms most commonly associated with the sharing economy (Uber, Airbnb, TaskRabbit, and their ilk) and a burgeoning collection of more organic and democratic organizations — that shape this economy.
This short invited Response focuses on the potential of this second category of institutions to achieve a more equitable distribution of the economic benefits of the sharing economy. While I agree that much can be gained from a more critical reflection on the nature of the institutions that shape the sharing economy, I harbor skepticism regarding the current vitality and future potential of these alternative institutions. I first explore how intermediary institutions might strengthen the position of workers in the sharing economy. I then express a few hesitations regarding the prospects of intermediary institutions to adequately counterbalance the technological platforms that dominate the sharing economy. Finally, I offer suggestions for how, by drawing on discussions of the role of institutions in other areas of legal doctrine; an “institutional turn” in thinking about the sharing economy might inform both legal scholarship and regulation.
Do “cultural factors” substantively influence the creation and evolution of property institutions? For the past several decades, few legal scholars have answered affirmatively. Those inclined towards a law and economics methodology tend to see property institutions as the outcome of self-interested and utilitarian bargaining, and therefore often question the analytical usefulness of “culture.” The major emerging alternative, a progressive literature that emphasizes the social embeddedness of property institutions and individuals, is theoretically more accommodating of cultural analysis but has done very little of it.
This Article develops a “cultural” theory of how property institutions are created and demonstrates that such a theory is particularly powerful in explaining large-scale institutional differences between societies. Empirically, it argues that, in the two centuries before large-scale industrialization, China, England, and Japan displayed systematic and fundamental differences in their regulation of property use and transfer. It further argues that these legal and institutional differences are best explained by certain aspects of social culture, specifically by the criteria for sociopolitical status distribution. Some of these criteria are distinctly “cultural” in the sense that they were probably generated by the widespread social internalization of moral values, rather than by utilitarian bargaining.
Cultural paradigms can exist, therefore, in property institutions. If we assume, as conventional law and economics urges, that individuals generally approach property use and regulation through a self-interested and utilitarian mindset, their pursuit of personal utility can nonetheless be constrained or empowered by cultural norms of status distribution that determine their relative bargaining power.
Wednesday, May 25, 2016
Tuesday, January 26, 2016
The Supreme Court’s gay marriage decision in Obergefell has been hailed in almost all corners as a milestone in American jurisprudence. From topics as varied as adoption and taxes, a myriad of rights have now descended upon gay couples as a result of the Court’s ruling. In this Essay we explore the little discussed downsides of the decision when it comes to the property rights and debts of the spouses. This is particularly important when considering the rights of third parties and their settled expectations in the context of retroactivity, as well the ways in which the Court’s decision may have the undesirable affect of undoing the carefully laid plans of the spouses. We conclude that courts and legislatures have by no means seen the end of the gay marriage debate. Rather, a host of unforeseen collateral issues lie on the horizon.
Tuesday, May 22, 2012
William Marra, Harvard Law School, has posted Adverse Possession, Takings, and the State on SSRN.
Here's the abstract:
Normally, the government may not seize private land without paying for that land. Yet it turns out that governmental bodies sometimes avail themselves of the laws of adverse possession, taking title to private land without paying the landowner. This phenomenon, largely ignored by the scholarly literature, raises two questions. First, should the government be allowed to adversely possess land in the same manner as private individuals? Second, when the government commits adverse possession, does this constitute a constitutional “taking” that requires the payment of just compensation? These two questions are of practical importance because they affect the resolution of numerous property claims, and they are of theoretical significance because they implicate both the appropriate scope of private property rights and the proper relationship between the individual and the state. Part I provides an introduction to adverse possession, and Part II studies the law of government adverse possession, detailing how nearly every jurisdiction permits the government to adversely possess private land in the same manner as private individuals. But as Part III demonstrates, government adverse possessors are not similarly situated to private adverse possessors, and the laws of adverse possession are built on a trio of assumptions — that the landowner has a property rule entitlement to her land, that the trespasser develops robust reliance interests, and that society’s primary interest is in quieting title — that do not necessarily hold when the government is the adverse possessor. Part IV concludes that because the current rules of adverse possession incentivize government trespass upon private land, special rules should apply to the government. When the government adverse possessor trespassed in good faith, a longer statute of limitations should apply; when the government trespassed in bad faith, it should be entirely denied the right to adverse possession. One quick fix to the problem, proposed by a federal court and endorsed by some commentators, is to call government adverse possession a constitutional taking and require the state to pay just compensation. Part V explains that the problem cannot so easily be wished away, and contends that the text of the Constitution, its history, and Supreme Court precedent all suggest that government adverse possession is not a taking. The solution to the problem presented by government adverse possession rests in righting property law, not distorting constitutional law.
By way of comparative comment:
- It is interesting how "takings" issues are such a significant part of constitutional discourse in the US, and in my nearer neighbour, Australia. New Zealand, without a formal written constitution, and without any "takings" provision, is in a different world in this sense. I have recently been exploring how the absence of this regime makes it easier to "propertise" resources (and also regulate them without having to worry about compensation issues) for a forthcoming article for the New Zealand Universities Law Review.
- Adverse possession was a part of my NZ Land Law course, as it remains part of US property courses. In New Zealand the law is statute based, and there would be very few adverse possession cases in New Zealand: one of the recent ones concerned a fairly isolated block of farm land with a fence in the wrong place (rather than the "squatter's rights" (of an abandoned house, for example) I imagined at law school).
- Marra hasn't steered away from takings.
- An empirical study of adverse possession (comparative, Commonwealth or otherwise) would seem to deserve attention.
Tuesday, May 1, 2012
One of the benefits of a blog (I am told) is the chance to introduce topics and ideas I know I'll never have the chance to turn into full articles. Here is the first - an abstract of the beginning of a response to Henry Smith's "Property as the Law of Things":
"Henry’s Myth; or, The Baby, the Bathwater, and the Bundle of Rights
Professor Smith’s recent article “Property as the Law of Things” (2011) 125 Harv L Rev [forthcoming] argues that the legal realists’ notion of property as a “bundle of rights” should no longer be considered useful to property lawyers and jurists. This paper argues otherwise, pointing out that (a) Smith has misrepresented the intellectual origins of the idea of property as a bundle of rights; (b) the “bundle” is more appropriately seen as a metaphor, rather than a description, and Smith has misrepresented this metaphor; (c) Smith’s new “modular architecture” metaphor bears more resemblance than Smith will admit to the idea of the bundle; and (d) there remain a number of examples for which the bundle of rights is a better analogy than modular architecture. This paper criticises the notion that the bundle of rights metaphor must give way to a modular architecture analogy as “Henry’s myth”, and concludes that we should not too easily abandon an enduring metaphor like the bundle of rights without being aware of what else might be lost: the bundle of rights remains something of a “baby” within the bathwater of property law theory."
Mostly, I think, it is just a good title. It begins from an assessment that Smith - and others - treat the "bundle" as a realist idea, when the phrase significantly pre-dates the realists and the legal realist movement. Further, a bundle is something we can picture quite well - "agenda setting" (as per Katz) or "modular architecture" less so. That said, the abstract is less nuanced than an article would be (as Smith's article is itself more nuanced than its title).
Comments welcome, but as I said, it's not likely to be something I have time to turn into a proper article, so as much as anything, I hope perhaps someone else can pick up on it.
Friday, September 2, 2011
Andreas Rahmatian (Glasgow) has posted two new articles on SSRN. The first is Intellectual Property and the Concept of Dematerialised Property:
A property right (ius in rem, real right) is an abstract legal concept which relates to an object, referred to as “thing” or “res,” or imprecisely, but commonly, “property.” This object of property is a product of legal categorisation; it may be represented by a physical thing or it can be an abstract legal creation itself, as is the case with an intellectual property right. In any event, for the law the “property-object” (whether tangible, intangible or purely intangible) is the product of a legal conceptualisation. The law (private law) creates any res or thing, whether corporeal or not, through the legal concept of real rights. That enables legal recognition of the res in question. The material object (if there is one) only becomes a res in law if real rights are attached to it. Therefore, real rights and res are both “property”, and particularly with (purely intangible) intellectual property, property rights and property objects merge into one. The abstract conceptual res typically has a reifier to make it recognisable in the material world and for the purpose of social interactions. This reifier can be a corporeal object, in which case it is a direct reifier (a table being a direct reifier and incident of a res, chattel), but, for example in case of copyright, a chattel may act not only as direct reifier of the notional personal (moveable) property right (e.g. a canvas of a painting, the score of a symphony, the paper of a manuscript), but also as an indirect reifier of the notional copyright (artistic work, musical work, literary work). The chattel in question represents directly the personal/moveable property (but does not constitute it, because the res remains a legal concept), and, in addition, the chattel represents indirectly the copyright in the work which is expressed and recorded in the chattel in question (a painting, sculpture etc.).
The second is Introduction: Lord Kames and His Principles of Equity:
One should regard the Principles of Equity by Lord Kames (1696-1782) as a work of applied legal philosophy rather than black-letter law. It is secondary whether the law was exactly as stated in the Principles of Equity, especially as that would have been the legal situation 250 years ago anyway. What is relevant is that the book contains a logically organised and principled jurisprudential discussion of scenarios of conflicts and proposed solutions by the law of equity. One should be able to detect and develop a set of legal solution mechanisms, abstract paradigms of concrete legal rules which may serve as an inspiring force for real life solutions without slavish adherence to the model. The Principles of Equity fill the gap between the philosopher who is often creative but not meticulous, and the lawyer who is often meticulous but exegetic. Where the lawyer has to be meticulous and creative and needs the approach of an applied philosopher as well as a legal specialist, particularly in the role as a legal theorist or as a draftsperson of statutes and contracts, he or she will find an excellent teacher in Kames. His work shows that law is not rote learning of statutes and cases and their mechanical application, but a craft as a basis for the art of justice, a craft that should be rooted more in reason than in authority.
[Comments are held for approval, so there may be some delay in posting]
Thursday, May 19, 2011
[W]hich cities were best at getting their residents to their workplaces in a timely and cost-effective manner? By researching coverage, service frequency and percent of total employed residents who can use public transportation, the report aimed to rank cities based on the most convenient overall commute.
Monday, May 9, 2011
Thursday, April 21, 2011
New Urbanist heavyweight, Andres Duany, has come out swinging in the recent issue of Metropolis Magazine. Duany has penned a pretty stirring defense of New Urbanism's accomplishments, and makes time to attack the "postmodernists," "architecture students from elite schools," and members of the "avant-garde," that have poo-pooed the movement.
The New Urbanism is in reality an expanding web of ideas, techniques, projects, and people. The Congress for the New Urbanism (CNU) is an institution chartered 18 years ago with a budget, a board, and a staff. . . .New Urbanists wrote HUD’s HOPE VI standards and are thereby responsible for about 111,000 new and renovated units of affordable housing—virtually the entire supply of the last 15 years, with a good proportion designed by CNU members. . . . A diverse array of techniques has been rescued from oblivion and tested in hundreds of built projects. New Urbanist architecture’s visible “nostalgia” is easily dismissed by critics, but its power is really in software and other methods . . .
Saturday, February 12, 2011
For those interested, my article Acceptable Deviance and Property Rights has now been published in the Connecticut Law Review. Here's the abstract:
Compliance with - or deviance from - law is often dependent upon the law’s convergence with - or divergence from - normative sensibilities. Where the legality and social acceptability of behavior diverge, some deviance is socially acceptable. Property rights evolve in response to changes in normative sensibilities. Constructing a model of acceptable deviance and applying it to property rights, we can predict and actually observe the evolution of property rights in response to changes in normative sensibilities in areas as diverse as file-sharing, foreclosures, the use of public space, and fishing rights. We can also predict and observe stresses in legal institutions created by divergences in the legality and social acceptability of behavior with regard to property rights. Law functions as an anchor on behavior, providing stability, but also space for deviance which permits the evolution of property rights.
Mark A. Edwards
[Comments are held to make sure they are absolutely dripping with praise, so there may be some delay in posting]
Wednesday, August 11, 2010
Cross-posted from thefacultylounge....
Well, it's time for that annual ritual: the visits to faculty offices by students looking for a note topic. Many congratulations to you all on making whatever review. It's going to be a lot of work and also some fun (I hope) and also it'll be a nice line on the resume.
So, you want a note topic. Well, I've thinking mostly about property and trusts and estates and legal history these days, so I'm going to re-post some ideas from a few years back here at propertyprof and add a couple of new ideas in here ....
Lo' those many years ago Eben Moglen suggested a topic to me, on federalism in the Taney Court. I am eternally grateful to him. And over the years I've suggested a bunch of topics to students. Some of the better ones in recent years include Amy Wilson's on the jazz influence in property law (got to read it--I'm not going to give away the punchline); Kitty Rogers' on integrating the city of the dead (catchy title, eh?); Leah Green's on the Erie Canal in American legal thought; Elizabeth Bates on statutes of limitations for reclamation of artwork produced by slaves; Chris Williams on an empirical study of smart growth; and Fred Wright's on the effect of New Deal residential finance and foreclosure policies on property law. In terms of a really excellent execution of a remedies topic, I'd point you to Grace Long's The Sunset of Equity: Constructive Trusts and the Law-Equity Dichotomy. It's darn good and it's about reconciling equity doctrine in a couple of diverse areas (injunctions and constructive trust), which I think shows a ton of both creativity and facility with doctrine. It's a model of strong scholarship.
The key to a good student note topic is: that it's do-able over the course of the second year. What's that mean? First, it's a topic that hasn't yet been over-written. That means stay away from takings (exception to follow). Some years ago (like nine at this point) one of my favorite students of all time asked me about writing on takings. And I said, well, spend the weekend looking at what's been done and reading (the then most recent case), Palazzolo and if you can find something new to say, let me know. So the next week she said, "seems like everything has been taken. [pause] I guess that was your point."
Second, find something that's at least a little interesting. You're going to be living with it for a while. Third, find something that's narrow enough that you can read everything on the topic and come to a reasonable conclusion in the time you have available. Fourth, find a topic on which you can say something about the law (this usually means finding a place where law is in flux). It's not a great idea to rehash the arguments against a particular Supreme Court decision. That's been argued and answered, even if you don't like the result. (This advice applies to faculty, as well.) The Columbia Law Review used to have a rule: you can't criticize the Supreme Court in your note. Good advice for second year law students, I think. Not that the Supreme Court has always done everything right; it's just that it's good to stay away from a topic on which you know going in you can't have much effect.
That means that narrow doctrinal topics are really good; brief empirical pieces, are also very good. And I think historical pieces are ideal, because there is so much that's left to be said about legal history. Talk to people at work; often times, the best note ideas come from practicing attorneys who see issues as they're just beginning to make their way through litigation. Some ideas below the fold....
Sunday, June 13, 2010
Rose Cuison Villazor has a new article up on ssrn, "Oyama v. California: At the Intersection of Property, Race and Citizenship." It is forthcoming in the Washington University Law Review. Rose's abstract is as follows:
Oyama v. California was a landmark case in the history of civil rights. Decided in January 1948, Oyama held unconstitutional a provision of California’s Alien Land Law, which allowed the state to take an escheat action on property given to U.S. citizens that had been purchased by their parents who were not eligible to become citizens. At the time, the country’s naturalization law prohibited Japanese nationals from becoming U.S. citizens. Thus, the Alien Land Law applied primarily to Japanese nationals and Japanese Americans. Critically, Oyama recognized that the state’s attempted taking of a citizen’s property because his father was Japanese constituted a violation of his equal protection rights. In so doing, Oyama created a paradigm shift in the treatment of property rights of Japanese Americans. Despite its significance, Oyama has received surprisingly little attention in legal scholarship. Leading constitutional and property law casebooks have virtually ignored the case. This Article seeks to correct that oversight. As this Article argues, Oyama fills a neglected void in our collective historical understanding of race, property law, and citizenship. Equally important, it provides a timely normative and prescriptive response to contentious contemporary debates about the validity of state and local law restrictions on leaseholds against a select group of noncitizens, namely undocumented immigrants. By calling attention to the historical and contemporary contributions of this largely unnoticed case, this Article argues why Oyama should be included in the canons of property and constitutional laws.
Posted by Alfred Brophy
Monday, April 26, 2010
A draft of my article Acceptable Deviance and Property Rights (forthcoming, Connecticut Law Review, which I link to here because it has an uncommonly gorgeous website for a law review) is finally up and running at SSRN. Frankly, I already have some changes in mind for it. I would really appreciate any feedback anyone would care to give. You can e-mail me any suggestions at mark.edwards at wmitchell.edu, or post them in the comments section. Here's the (admittedly rather abstract) abstract:
Compliance with – or deviance from – law is often dependent upon the law’s convergence with – or divergence from – normative sensibilities. Where the legality and social acceptability of behavior diverge, deviance is socially acceptable. Property rights evolve in response to changes in normative sensibilities. Constructing a model of acceptable deviance and applying it to property rights, we can predict and actually observe the evolution of property rights in response to changes in normative sensibilities in areas as diverse as file-sharing, foreclosures, the use of public space, and fishing rights. We can also predict and observe stresses in legal institutions created by divergences in the legality and social acceptability of behavior with regard to property rights. Law functions as an anchor on behavior, providing stability, but also space for deviance which permits the evolution of property rights.
[comments are held for approval, so there will be some delay in posting]
Friday, December 22, 2006
I need a break from grading Con Law exams, so I thought I would share with my fellow Property Professors a gem of an article describing the Supreme Court's "tiers of scrutiny" for reviewing laws under the Constitution. Many of you may try to introduce the class to strict scrutiny, intermediate scrutiny, and the rational basis test when teaching some aspect of Constitutional Law to 1L property students. And if you are looking for an article that describes this area of the law--including the fact that the three standards of review are, in reality, many more than three--you need look no further than Prof. Michael Stokes Paulsen's six-page masterpiece, Medium Rare Scrutiny, 15 Const. Comm. 397 (1998).
My students love this article, because it is both informative and hilarious. Paulsen compares the Court's tiers of scrutiny to the way he barbecues steak in his backyard in Minneapolis on his Weber grill. Thus, he speaks of Rare Scrutiny, Medium Rare Scrutiny, Medium Scrutiny, Medium Well Scrutiny, and Well Done Scrutiny. Here is a short excerpt from the article, one describing "Romer-type rational basis with a bite" scrutiny, that should give you a feel for Paulsen's magic:
But Romer-type scrutiny is probably better labeled "rare to medium rare," or--if we're really being honest--"medium-well-to-well-done-but-call-it-rare-to-medium-rare-because-that's-hipper-and-I-don't-want-to-admit-what-I'm-really-doing" scrutiny. As everyone knows, rational basis with bite is really just another way of saying "singe the statute." As Gerald Gunther might (or might not) put it, such scrutiny is "rare" in theory and fatal in fact--dead, dead meat. It's amazing how many times "rare to medium rare" ends up being burned, when the Supreme Court is barbecuing the Constitution.
This is one of my all time favorite articles. If you get bored grading your exams, take a ten minute break and read Medium Rare Scrutiny. It will clear your palate for the next batch of blue books.
[Comments are held for approval, so there will be some delay in posting]