PropertyProf Blog

God and Land at Albany

The Albany Government Law Review and Government Law Center at Albany Law School are cosponsoring a conference called God and the Land:  Conflicts Over Land Use and Religious Freedom.  The conference will be held at Albany Law from October 1-3, 2008.  They have a great group of speakers.

Ben Barros

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GELPI Takings Conference Save-The-Date

I recently received this notice from GELPI:

On November 6-7, 2008, the Georgetown Environmental Law & Policy Institute at Georgetown University Law Center and Stanford Law School’s Environmental and Natural Resources Law & Policy Program will host the 11th Annual Conference on Litigating Takings and Related Legal Challenges to Land Use and Environmental Regulation.

The conference, to be held at Stanford Law School in the San Francisco Bay area, will examine how the Takings Clause and related legal doctrines may undermine the public’s ability to address emerging environmental, public health, and growth management challenges.  A particular focus of this year’s conference will be the potential takings implications of public policy initiatives designed to mitigate and adapt to global warming.  The conference will also address recent legal developments in takings law and related fields, including the latest legal and policy fall out from the Supreme Court’s landmark decisions in Lingle v. Chevron USA and Kelo v. City of New London.  Another featured topic will be future prospects for property rights ballot measures along the lines of Propositions 98 and 99 in California and other states.

Conference faculty will include a mix of leading academic scholars and expert practitioners.  The proceedings of the conference will be published in the Stanford Environmental Law Journal.

Ben Barros

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Off to Law & Society

I'm heading to Montreal for the Law & Society Conference, which will feature a great set of property panels.  Internet access permitting, I'll try and post from there.

Ben Barros

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DePaul Conference on Acquiring and Maintaining Collections of Cultural Objects

This fall, on October 16, DePaul Law School's Center for Intellectual Property Law and Information Technology and the Program in Cultural Heritage Law will host a conference on "Acquiring and Maintaining Collections of Cultural Objects: Challenges Confronting American Museums in the 21st Century."

Speakers include: Jame Cuno, Art Institute of Chicago; Ildiko DeAngelis, George Washington University; Patty Gerstenblith, DePaul Law School; Thomas Kline, Andrews Kurth; Jennifer Kreder, Northern Kentucky University; John McCarter, Field Museum of Natural History; John Russell, Massachusetts College of Art and Design; Howard Spiegler, Herrick Feinstein; Martin Sullivan, Smithsonian National Portrait Gallery; and Stephen Urice, University of Miami School of Law.

Looks like a fabulous program!
Alfred Brophy

Property Section Call For Papers: Hernando de Soto and Property in a Market Economy

Call for Papers—Hernando de Soto and Property in a Market Economy

Extended Program of the AALS Section on Property Law

The Section on Property Law has proposed a three-hour extended program on “Hernando de Soto and Property in a Market Economy” at the AALS annual meeting in San Diego on Wednesday, January 7, 2009.  The papers presented during the program will take a wide range of approaches to applying the significance of Mr. de Soto’s work to property issues that arise in a mature market economy such as the United States.  Speakers tentatively scheduled to participate include Greg Alexander (Cornell), Nicole Garnett (Notre Dame); Eduardo Penalver (Cornell), Carol Rose (University of Arizona), and Lior Strahilevitz (University of Chicago).  Tentative arrangements have been made to publish the papers from the panel in a book from Ashgate Publishing.

One or more speakers for the panel will be selected through this call for papers.  Because of limited time slots available at the AALS meeting, some proposals may be accepted for publication in the book but not given a speaking slot.  Proposals should consist of a 250-500 word abstract, and should be submitted by June 15, 2008 by e-mail to D. Benjamin Barros, Chair of the Property Section, at dbbarros@mail.widener.edu.

As is always the case with AALS annual meeting programs, presenters must pay their own travel and accommodation expenses, typically with the support of their home institutions.

Ben Barros

San Diego photo from PD Photo via Wikicommons

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Property Panels at Law and Society

Here is a list of property-related panels for the upcoming Law & Society Conference in Montreal.  If you're aware of a panel or paper that might be of interest to propertyprofs that I've missed, please leave a comment and I'll update this post.

[UPDATE:  Info on several panels added since intial post]

Thursday, May 29 - 8:15am - 10:00am: Property and Poverty 1114

Panel Abstract:

At its most fundamental level property law is presumed to protect our personal and communal connections to the material world: it transforms space into place. And yet property law is also a well-documented instrument of displacement. The history of colonialism is replete with stories of the use of property law to justify and legalize a shift of ownership from one population to another. Even when impoverished and marginalized people succeed in retaining or acquiring legally cognizable interests, these interests are often ultimately undermined by the very same property rules that were presumed to offer protection. This panel will explore the extent to which property law has failed to protect the modest property interests of impoverished and marginalized people, the latent potential within property law to actually shift resources to the poor, and alternative property related strategies to alleviate poverty.

Chair : Sarah Harding (Illinois Institute of Technology)

Papers:

John A. Lovett (Loyola University New Orleans College of Law), The Winding Road to Recovery: Property Relationships Three Years after Katrina

Bernadette Atuahene (Illinois Institute of Technology), Property Theft and Restitution: The South African People Tell their Story

Nadja Jungmann (Erasmus Universiteit, Rotterdam), Improving the Effectiveness of the Amicable Debt Settlement Procedures

Thomas W. Mitchell (University of Wisconsin, Madison), A Tale of Two Communities: Race and Land Reform in the New Deal

Thursday, May 29 - 12:30pm - 2:15pm:  Status, Anxiety, and Conflict: How Property Law Shapes Relationships between People and Places 1322

Panel Abstract:

This panel will explore how property law impacts interpersonal relationships and the relationships between people and places. The issues that will be discussed include: How does property law shape the status relationships between people? Why does the alienability of certain types of property cause anxiety? How do different groups of people relate to historic properties, and how does that shape preservation law? What can property scholarship and the psychology of place tell each other about how property law impacts people’s relationship with their homes and other places and spaces?

Chair: Gregg Kettles (Mississippi College)

Papers:

Benjamin Barros (Widener University), Legal Questions for the Psychology of Home and Place

Peter Byrne (Georgetown University), Hallowed Ground: The Gettysburg Battlefield in Historic Preservation Law

Nestor M. Davidson (University of Colorado), Property and Status

Lee Fennell (University of Chicago), Anxiety and Alienability

Thursday, May 29 - 12:30pm - 2:15pm:  Author Meets Reader--"Land Expropriation in Israel: Law, Culture, and Society," by Yifat Holzman-Gazit 1309

Panel Abstract:

Historically, Israel's Supreme Court has failed to limit the state's powers of expropriation and to protect private property. This book argues that the Court's land expropriation jurisprudence can only be understood against the political, cultural and institutional context in which it was shaped. Security concerns and economic pressures, the precarious status of the Court in its early years, the pervading ethos of collectivism, the cultural symbolism of public land ownership , the perceived strategic and demographic risks posed by the Israeli Arab population – all contributed to the creation of a harsh land expropriation legal philosophy. This philosophy, the book argues, was applied by the Supreme Court not only against Arab landowners but against Jewish landowners as well, from the establishment of the State in 1948 until the 1980s. The book concludes with an analysis of the constitutional changes of 1992 and their impact on the treatment of property rights under Israeli law.

Chair: Tehila Sagy (Stanford University)
Author: Yifat Holzman-Gazit (Stanford University)
Readers:  Gregory S. Alexander (Cornell University), Rachelle Alterman (Israel Institute of Technology); Geremy Forman (U of Haifa/Tel Aviv U); Alexandre Kedar (Haifa University); Nimer Sultany (Harvard University)

Friday, May 30 - 10:15am - 12:00pm:  Evolution and Reform of Property Law 2223

Panel Abstract:

This panel will focus on the reform of property law. It will address historical and contemporary mechanisms of achieving property reform, comparing common-law evolution of the law with statutorily-imposed change. It will also address the current need for reform to make property law responsive to the requirements of modern society. Individual papers will argue for the reform of the rules governing estates and future interests, which are unnecessarily complex; for the reform of the remedies imposed for abuse of easements to better achieve consistency, efficiency, and fairness in the law of servitudes; and for the reform of concurrent-interest law to better serve modern needs of people ranging from the intestate heirs of indigent farmers to the owners of a family vacation house.

Co-Chairs: Benjamin Barros (Widener University) & Mark Fenster (University of Florida)

Papers:

Benjamin Barros (Widener University), The Failure of the Restatements and the Need for Model Laws of Property

Thomas W. Mitchell (University of Wisconsin, Madison), Exit from the Community: U.S. Property Law Reform and the Relevance of Comparative Perspectives

Lee J. Strang (Michigan State University), Damages as the Appropriate Remedy for “Abuse” of an Easement: Moving Toward Consistency, Efficiency, and Fairness in Property Law

Joshua C. Tate (Southern Methodist University), The Writ of Quare Impedit and the Development of English Property Law, 1180-1250

Sarah Waldeck (Seton Hall University), Inheriting the Family Cottage: Real Life Arrangements and the Law of Tenancies-In-Common

Friday, May 30 - 12:30pm - 2:15pm  Local Interaction, Constitutive Community, and the Role of Law: The Place of Identity 2306

Panel Abstract:

Individuals constitute and are constituted by their local communities. This panel’s papers analyze the social and legal dynamics of various types of local places and spaces where the interaction of individuals with one another expresses or actualizes an important aspect of the individuals’ identity, and at the same time constitutes a community that seeks to control and constitutes the site. Formal law and informal norms, visibility, invisibility and performance, and the rhetoric of public and private are among the tools. They may be deployed to create a stable consensus about the local place/space and the identity and status of the individuals who turn to that place/space or physically inhabit it. Or these tools may be used to destabilize, contesting the values expressed by the community and battling over the status and identity of the constituent individuals. Physical place will be contrasted with shared communicative space, and the multiscalar nature of conflicts over local constitutive community will also be discussed.

Chair: Ngai Pindell (University of Nevada, Las Vegas)

Discussant:  Hari Osofsky (Oregon)

Papers:

Carlos A. Ball (Pennsylvania State University), Privacy, Property, and Public Sex

Robin Paul Malloy (Syracuse University), Opening Neighborhoods to the Mobility Impaired

Marc R. Poirier (Seton Hall University), Ocean Grove versus Ocean Grove

Russell K. Robinson (University of California, Los Angeles), Structural Dimensions of Romantic Preferences

Friday, May 30 - 4:30pm - 6:15pm  Marginalized People, Contested Use, and the Regulation of Space 2504

Panel Abstract:

This panel will explore how local governments respond to marginalized people engaging in controversial activities. The regulatory responses to these activities often lead to sub-optimal outcomes because of the relative powerlessness of the people that engage in them. Thus, local regulation aimed at housing occupied by illegal immigrants reflects the inferior property rights of non-citizens. Regulation of areas where day laborers congregate, even when well intentioned, fails to address either the needs of the laborers or the needs of the community. Regulation of market spaces can stifle the organic development of spontaneous order in heterogeneous market communities. Indeed, one response to market regulation is the development of a sense of community based on outsider status by marginalized people engaged in gray market enterprises.

Chair: Joshua C. Tate (Southern Methodist University)

Papers:

John C. Cross (University of Mary Washington) and Alfonso Hernandez (Centro de Estudios Tepitenos), Deviant Space and Deviant Communities: The Defense of Alternative Uses of Space in Mexico City

Gregg Kettles (Mississippi College), Day Labor and Public Space

Alfonso Morales (University of Wisconsin)In the Zone: Street Markets and Street Merchants in Socio-Legal Perspective

Saturday, May 31 - 8:15am - 10:00am, Race and Property/Property and Race 3114

Panel Abstract:

This session focuses on the relevance of race to property and vice verse. The participants will explore a range of historical and contemporary problems, specifically the institutional challenges that people of color face in claiming and holding property entitlements. Property is a richly broad area. As such, the panelist will cover a variety of topics, including in human integrity and reputation, intellectual property in a socio-cultural context ; labor, wealth and property ownership. The panelists will explore the boundaries of property and the present disenfranchisement of black people from the various forms of property. This separations is deeply historic and currently persists, contributing to the ever-broadening wealth gap in America.

Co-Chairs: Carol N. Brown (University of North Carolina, Chapel Hill) and Zanita Fenton (University of Miami)

Papers:

Olufunmilayo Arewa (Northwestern University), Borrowing the Blues: Intellectual Property and African American Music

Carol N. Brown (University of North Carolina, Chapel Hill), Racism's Property Victims: Why Blacks Are Exploitable by Subprime Mortgages

Adrienne Davis (Washington University), The Jurisprudence and Justice of Black Reparations

Zanita Fenton (University of Miami), Reconstruction and Rhetoric: A History of Race, Speech, and Democracy

Saturday, May 31 - 10:15am - 12:00pm:  Roundtable--The Property of the Commons in Question 3231

Roundtable Abstract: 

This roundtable brings together scholars and activists to discuss the way globalized discussions of "the commons" are changing industrial practices of property. Specifically, the contributors are concerned with the transformation of the "commons" in recent years, with the way the term is mobilized to support the extension of globalized capital into local economies, and the consequences of such a re-articulation. Commenting on recent work on the subject, the roundtable members will discuss the precise ways that the "commons" is working its way into mainstream discourses, and, in doing so how it is fundamentally changing the practices of property. Possible points of discussion are: (i) the way "the commons" (both the notion and 'substance') is being appropriated and re-articulated by, among others, the World Bank, (ii) how some scholars' work abet this atrophying of the sense the commons has, (iii) how talk of "access" and "benefit-sharing" reinterpret the commons in a divisible way, and (iv) the relationship of the new mobilization of commons-discourse to new efforts of colonialism. Against this, the roundtable members will also comment on strategies and networks that challenge the appropriation of the discourse, with the aim of collaborating towards a richer understanding of the commons both within law, and without.

Chair: Shiri Pasternak (University of Toronto)
Participants: Nick Blomley (Simon Fraser University), Bradley Bryan (University of Victoria), Deborah Curran (University of Victoria), Geoff Mann (Simon Fraser University)

Saturday, May 31 - 2:30pm - 4:15pm:  Roundtable--Local Administrative Law 3420

Roundtable Abstract: 

Overshadowed by federal and state administrative law, the procedures and institutions of local governments constitute a set of complex doctrines and practices that deserve greater attention. Governing in the shadow of their larger and more powerful partners in the American state, local governments reckon with distinct challenges in their efforts to meet the same core democratic values (including impartiality, accountability, transparency, and deliberation) that challenge federal and state governments. Local governments encounter these challenges under quite different conditions, however, given their limited political authority and resource constraints. Their ability to govern legitimately and authoritatively is also colored by the American political imaginary, which views local governments as both the romantic, Tocquevillean locus of democratic participation and the exploitative site of corruption, segregation, and NIMBY-ism.

In focusing on “local administrative law,” this roundtable session will consider both the pluralism of local governance --- the diverse sources of law that affect municipalities, as well as the diverse practices in which they engage --- and the normative dimensions of bureaucracy and democracy as they play out at the local level. The panelists are engaged in a variety of projects that seek to describe how local administrative law operates on the ground, to suggest reforms that will improve existing procedures and address emerging regulatory issues, and to develop new theoretical models to understand the specificities of local administrative law. They plan to engage with these issues across levels of abstraction, academic disciplines, and substantive legal issues.

Chair: Mark Fenster (University of Florida)
Participants: Nestor M. Davidson (University of Colorado), Lee Fennell (University of Chicago), Ronald H. Rosenberg (William & Mary University), Edward Sullivan (Garvey Schubert Barer)

Saturday, May 31 - 2:30pm - 4:15pm:  Land Rights, Property, and Its Distribution in the Context of Development 3427

Chair/Discussant: Julie Paquin (McGill University)

Papers:

Hiromi Amemiya (University of Toyama), Customary Land Right and Development Issues in Africa: Case of "Tanzania Village Land Act, 1999”

Bernadette Atuahene (Illinois Institute of Technology), The Legitimacy of Property Rights in the Context of Past Theft

Elizabeth Gianola (University of California, Berkeley), The Legal Construction of Communal Land Rights: The Ghanaian Experience

Jeffrey L. Gower (University at Buffalo, SUNY), Peter J. Kedron (University at Buffalo, SUNY), Rupal Desai (University at Buffalo, SUNY), and Sharmistha Bagchi-Sen (University at Buffalo, SUNY), Political and Economic Contexts of Biofuel Production: A Case of Iowa's Ethanol Industry

Sunday, Jun 1 - 10:15am - 12:00pm  Roundtable--Contestations of Indigenous Property 4221

Roundtable Abstract: 

This roundtable examines various contestations in aboriginal and indigenous claims over property. In particular, it analyzes the role that law and culture play in determining, managing, constructing, and reifying the (limited) rights of indigenous peoples in the U.S., Canada and other parts of the world. The roundtable participants will explore distinct yet overlapping issues affecting indigenous and aboriginal groups’ resources such as land, water, and intellectual property that have found inadequate protection in law.

Chair: Matthew Fletcher (Michigan State University)
Participants: Kate Fort (Michigan State University), June McCue (University of British Columbia), Wenona Singel (Michigan State University)

Ben Barros

Montreal photo from Wikicommons

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Real Estate Transactions Section Call for Papers

Here is the call for papers for the Real Estate Transactions Section panel for next year's AALS conference.  The Property Section call will come out in the next few weeks.

Call for Papers—Real Estate Transactions in Troubled Times
Joint Extended Program of the AALS Section on Real Estate Transactions and the AALS Section on Creditors’ and Debtors’ Rights

The Section on Real Estate Transactions and the Section on Creditors’ and Debtors’ Rights have proposed a three-hour extended program on “Real Estate Transactions in Troubled Times” at the AALS annual meeting in San Diego on Saturday,  January 10, 2009.  See the program description below.  We are seeking six speakers for this program, with selection to be based on submission of papers.   We are looking for a range of approaches and subjects within the topic. The papers may be in any stage of development, from near final to early works in progress (the minimum is a three-page description of the topic and thesis).   The degree of completion may be taken into account in selection.  We do not plan a law review symposium around the papers, so you are free to submit your papers to any publication.  The deadline for paper submission is April 10, 2008, and selections of speakers will be made by April 24.  Commentators will also be included in the program.  Please submit your paper by e-mail to Jean Braucher at Braucher@law.arizona.edu.  The selection committee members are Professors Daniel B. Bogart of Chapman University, Jean Braucher of the University of Arizona, R. Wilson Freyermuth of the University of Missouri-Columbia, and Katherine Porter of the University of Iowa.   As is always the case with AALS annual meeting programs, presenters must pay their own travel and accommodation expenses, typically with the support of their home institutions.

Program Description:  The national mortgage meltdown and general recessionary pressures have changed the dynamics between buyers and sellers, borrowers and lenders, landlords and tenants, and others involved in real estate transactions.  This program will examine recent developments in both home and commercial real estate transactions.  Although much of the focus to date has been placed on residential mortgages, uncertainties in the market also significantly affect commercial real estate transactions.  For example, commercial property is often now securitized, just as home mortgages are.  When securitized transactions go into default, how can workouts be arranged?  To what extent are statutory changes needed, such as reinstatement and redemption rights, anti-deficiency protection and modification under the Bankruptcy Code?  How can foreclosed properties quickly be recycled to productive uses?  During difficult financial periods, real estate lawyers and debtor-creditor lawyers often find themselves plowing the same fields, with insolvency and bankruptcy planning important to each. 

Ben Barros

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Property and Psychology Panel at APLS

Tomorrow I'm off to the American Psychology-Law Society Conference to take part in a panel titled A Psychological Perspective on Property Law: Current Topics and Future Directions.  The panel was put together by Jeremy Blumenthal (Syracuse).  Here's the panel abstract:

“The law can ask no better justification than the deepest instincts of man.” Although Justice Holmes’ words apply to all of legal psychology, they were written in the context of property law. Yet psychologists have largely neglected the study of property. We help remedy this situation, laying the groundwork for a mutually beneficial relationship between legal psychologists and property scholars.

The panel brings together legal academics, psychologists, and policy-makers working at the crossroads of psychology and property. After reviewing the scant empirical research taking a psychological perspective on property, we present empirical research in four areas: the psychology of “home;” intuitions about first possession and ownership; how individuals see property rights in art; and whether notions of ownership rights change simply because of how “property” is defined.

Our goal is to prompt empirical research in four broad areas with implications for property law, theory, and policy: (1) What benefits emerge from a psychological view of property law, and what questions can the law give to empirical researchers? (2) Does property law reflect lay intuitions, and does empirical research support black-letter law? (3) Are views of property and ownership innate? (4) Are those views malleable; if so, with what policy implications?

And here are the paper abstracts:

Jeremy A. Blumenthal, Psychology, Property Law, and Property Theory

Psycholegal study of property is a new and developing topic area; this paper serves as a broad introduction and overview to the field.  First, I identify the important theoretical connections between psycholegal research and property law, theory, and policy.  Next, I review the little work that has been conducted as well as some contemporary research.  Finally, I indicate several under-explored topic areas available to psycholegal scholars, and sketch what a research program taking a psychological perspective on property law might look like.  I demonstrate the close relationship between empirical psychological findings and property law/theory, and discuss the potential for more.

D. Benjamin Barros, Legal Questions for the Psychology of Home

This presentation will discuss a series of legal issues relating to homes and will connect these issues with questions about the psychology of home.  Legal scholars writing in this area have often made questionable assumptions about the psychological relationship between people and their homes.  Even in those instances where legal scholars have sought guidance from work on the psychology of home, they have been hampered by the absence of relevant literature or ambiguity in the literature that does exist.  The presentation therefore frames these issues in a manner relevant to both legal scholars and researches in the psychology of home.

Barbara A. Spellman and Frederick Schauer, Artists’ Moral Rights and the Limits of Ownership

Typically owners of objects have the right to do with them as they please.  However, the Visual Artists’ Rights Act (VARA; 1990) restricts what owners of some artwork may do with their acquisitions.  Our participants felt that it was much worse for an owner to alter a painting than a car.  How wrong participants thought altering or destroying a painting was depended on whether they agreed with the message of the painting and on how involved they were in creating artwork.  Thus, although mediated by their own predilections, people’s “moral intuitions” are consistent with the “moral rights” bestowed by VARA.

Ori Friedman, First possession: An assumption guiding inferences about ownership across the lifespan

This talk reports four experiments suggesting that people typically assume that the first person to possess an object, owns it. In two experiments, undergraduates selected first possessors over subsequent possessors when judging who owns a toy, but not when judging who likes it more. In another experiment, undergraduates selected first possessors over earlier pursuers when judging who owns an animal, consistent with the ruling in Pierson v. Post. In the final experiment, preschoolers selected first possessors when inferring ownership. Together, the findings provide evidence for an assumption that may lead intuitions about property to be consistent with property law.

Jonathan Remy Nash, Packaging Property: The Effect of Paradigmatic Framing of Property Rights

The two fundamental paradigms of property rights are the “bundle of sticks” and “discrete asset” approaches.  This Article describes an experiment to test the hypothesis that the paradigm under which property rights are framed has an effect upon whether and how much people accept interference with and regulation of those rights.  The results provide support for the proposition that that those who view property under the “discrete asset” paradigm would be less likely to part with their rights than those who subscribe to the “bundle” paradigm, and also confirm that the paradigmatic frame affects people’s perceptions of property rights.

I'm not sure how many property profs will be in attendance, but if you're there, please say hello.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

War and Peace: Art and Cultural Heritage Law in the 21st Century

If I could be anywhere on March 4, I'd be at the Cardozo Public Law, Policy, and Ethics Journal's symposium on War and Peace: Art and Cultural Heritage Law in the 21st Century.  The Cardozo Law School website  says:

Cardozo Public Law, Policy and Ethics Journal and The Lawyer’s Committee for Cultural Heritage Preservation are presenting an all-day symposium, on how to prevent looting during times of both war and peace, how to deal with looted cultural material that enters into the international art market, and legal issues related to restitution of art works. Donny George, former director of the Iraq Museum in Baghdad is a presenter.

There's a terrific line-up of speakers:

10:45am  Iraq and Afghanistan
Donny George, former Director General, Iraq Museum; former Chairman, Iraqi State Board of Antiquities and Heritage; Visiting Professor, State University of New York at Stony Brook
Matthew Bogdanos, Colonel, US Marine Corps
Brian Rose, President, Archaeological Institute of America; Curator-in-Charge, Mediterranean Section,
University of Pennsylvania Museum of Archaeology and Anthropology
Patty Gerstenblith, Director, Program in Cultural Heritage Law, DePaul University College of Law

12:00 Lunch

1:30pm  Archaeology in the Americas
Sharon Cohen Levin, Chief, Asset Forfeiture Unit, US Attorney’s Office, Southern District of New York
Terence N. D’Altroy, Professor of Anthropology, Columbia University
Todd Swain, Park Ranger and Special Agent, National Park Service
Robert Palmer, National Park Service NAGPRA Civil Penalties Investigator, Assistant Professor of Behavioral Sciences, Loras College
Sherry Hutt, Manager, National NAGPRA Program, National Park Service

3:15pm  World War II
Lucille A. Roussin, Professor, Cardozo School of Law
Monica Dugot, Director of Restitution, Senior Vice President, Christie’s International
Lucian Simmons, Worldwide Head of Restitution, Senior Vice President, Sotheby’s, New York
John J. Byrne Jr., Founding Partner, Byrne Goldenberg & Hamilton
Howard Spiegler, Partner, Herrick, Feinstein

4:45pm  Summary Session: What are the different approaches to returning cultural property and do they work?
Lucille A. Roussin, Adjunct Professor, Cardozo School of Law

The illustration of the Warka Head, an antiquity looted from the Iraqi National Museum, comes from the U.S. Department of State's Bureau of Educational and Cultural Affairs.

ALB

Monday Roundup: Federalist Society Panels and Harvard's Atlantic World Seminar

Let me roundup a couple of things propertyprofs might care about this morning.  First, two panels from the Federalist Society's Tenth Annual Faculty Conference:

"Post-Kelo Reform"  with Vanderbilt's James Ely, Northwestern's David Dana, George Mason's Steve Eagle, Yale Law Olin Fellow Dan Kelly, and George Mason's Ilya Somin, as moderator.

And while this isn't quite property, it is prof related:

"American Law Schools: Envy of the World or General Motors Before the Fall?"  with Colorado's Paul Campos, San Diego's Maimon Schwarzchild, Emory's George Shepherd, Boston College's Dean John Garvey, Washington & Lee's Dean Rodney Smolla, and Judge Frank Easterbrook, as moderator.  It's an interesting discussion and, as you might expect, lots of talk about the market and regulation.  I think the moderate and balanced tone of Deans Smolla and Garvey are particularly welcome.

Also, this is where I would be on April 28 if my schedule permitted it:

People and the Land in the Atlantic World, 1500-1825

A Workshop of the Atlantic History Seminar

Harvard University April 26, 2008

This one-day Workshop will examine the practices and theories of people’s engagement with the land: the forms and consequences of land distribution in conquered territories; the different meanings of possession, tenancy, and usufruct; the conflicts among and transformations in European concepts and practices of land management in the Americas; the passion of individual Europeans for free ownership of land in the Americas; and the role of available land overseas in Britain's "Great Divergence." Scholars with an expert knowledge of the field will discuss aspects of the topic; each presentation will be followed by general discussion. The Workshop will include lunch and a reception following the final session.

Attendance at the Workshop and participation in the discussion are open to the academic community. Historians at the beginning of their careers are especially encouraged to attend. Travel and accommodation expenses will be the responsibility of attendees, though the Workshop can provide local lodging information. Pre-registration is required.

More information is available at the conference's website.

ALB

Comments are held for approval, so they will not appear immediately.

Papers for AALS Junior Property Scholars Works-in-Progress Panel

I hope that those of you who are heading to New York will attend the Junior Property Works-in-Progress panel on Sunday morning at 9:00 a.m.  The two papers being presented are now available for download if you want to read them in advance - click on the link after the title for a PDF version.  The papers are:

Nestor Davidson, Standardization and Pluralism in Property Law.  Download Davidson.pdf

Lee J. Strang:  Damages as the Appropriate Remedy for "Abuse" of an Easement:  Moving Towards Consistency, Efficiency, and Fairness in Property Law.  Download Strang.pdf

Hope to see you there!

Ben Barros

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Panel on Eminent Domain Reform

For those of you who are going to be in NY this week, Ilya Somin has organized a panel Friday morning on eminent domain reform at the Federalist Society's parallel conference.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Property Section Events at AALS

The Property Section will have two panels at this year's AALS Conference in New York.

First, on Saturday, from 3:30 - 5:15 p.m., we will have a panel on the Biology of Property Law.  The Section business meeting will immediately follow this panel.  Second, on Sunday, from 9:00 a.m. to 10:45 a.m., we will hold a junior scholars works-in-progress workshop.

Also, don't miss the Property Section Breakfast on Saturday morning at 7:00 a.m.

More details on the panels are in the Section Newsletter.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Real Estate Transactions Panel at AALS

Here's the info on the Real Estate Transactions panel at AALS in New York.  I'll post the details of the Property Section panels tomorrow; if you can't wait, the info is in the Section Newsletter.

Title: Negotiating the Mega-Rebuilding Deal at the World Trade Center: Teaching Teachers to Teach Students

Time and Place: Friday, January 4, 2008; 10:30–12:15, New York Hilton, Regent Parlor, second floor

Speakers:

— Mr. Alex Garvin, President and CEO, Alex Garvin & Associates, Inc., and Adjunct Professor of Urban Planning, Yale University

— Meredith J. Kane, Esq., Paul, Weiss, Rifkind, Wharton & Garrison

— Janno Lieber, Esq., Senior Vice President, World Trade Center Properties, LLC

— Prof. Lance Liebman, Columbia Law School

— Martin D. Polevoy, Esq., DLA Piper

Synopsis:

The rebuilding of the World Trade Center site is one of the largest, most difficult, and most emotionally fraught transactions in American history. In addition to the usual stakeholders found in any complex public-private transaction (two states and one city, the developer, the investors, the architect, the contractors, the prospective tenants), the World Trade Center redevelopment introduces additional parties unique to this particular tragedy, including the victims of the attack and their families, first responders, neighborhood residents, and insurers.

This transaction would be fascinating to any observer. But to the law professor, this is a teaching opportunity and not just an interesting deal. Speakers representing various interests in the Ground Zero rebuilding project will address two principal questions. First, they will discuss specific issues that have arisen during the negotiation and documentation process, with emphasis on those that are unique to this particular project. Second, they will provide illustrations of the “teaching moments” they have observed throughout the process. Law professors who teach courses in any business subject will benefit by hearing experts demonstrate the opportunities this transaction presents for professors to help law students understand legal complexity.

Ben Barros

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AALS Property Section Newsletter

This year's edition of the AALS Property Section Newsletter is now available.  Thanks to Carol Brown of UNC for putting it together.

Ben Barros

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Coordinating Law and Society Panels

The deadline for paper and panel proposals for next year's Law and Society Conference (May 29-June 1 in Montreal) is fast approaching.  Submissions are due December 12, and should follow these guidelines.  For a host of reasons, it is better to submit a panel proposal rather than a solo paper.

For those who are interested in participating at the conference, and have not yet formed a panel, I would be happy to play matchmaker and help form panels.  If you are interested, please e-mail me as soon as possible with a short description of your topic.  I'll collect the topics and try to put people together.

Ben Barros

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Property Panels at Legal History Conference

Later this month, I will be presenting a paper entitled "The Writ of Quare Impedit and the Development of English Property Law, 1180-1250," at the American Society for Legal History annual meeting in Tempe, Arizona.  In addition to my panel, "Legal Issues in Feudal Society," there are a number of other panels relating to property law, including "The Invention of Modern Anglo-American Intellectual Property Law" and "The Role of Land in National-Local Relations:  A Comparative Perspective."  The ASLH meeting is always an excellent forum to present work on property law (or any other subject) with a historical focus, although people tend to submit complete panels rather than individual papers.  This year's conference will be held Oct. 25-28; next year's will be held Nov. 13-16 in Ottawa, Ontario.  Watch for the Ottawa call for papers early next year.

Josh Tate

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Junior Property Scholars Conference - February '08

On February 8 and 9, 2008, I’ll host a works-in-progress conference for junior property scholars at Widener Law School in Harrisburg, PA.  I’m pretty flexible on the definition of “junior property scholar,” though the basic rule of thumb is teaching for six or fewer years.  People who are from outside the U.S. or teach in related fields would be very welcome.

The basic idea is to give junior people a forum to get feedback on their scholarship and to get to know each other.  There will be two types of presentations.  First, people with a paper that is pretty far along can submit their paper in advance for people to read before the conference.  The conference is timed in part to allow people to get drafts ready for the Spring law review submission season.  Second, people with early-stage ideas can present their thoughts to the group to get feedback.

The exact structure of the conference will depend on how many people want to attend.  To give me a rough head count, please e-mail me (dbbarros@mail.widener.edu) if you think you might want to join us.   Please note that because this is a works-in-progress conference, we’ll ask attendees to cover their travel and hotel costs.  We’ll cover the meals.

Ben Barros

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Junior Scholars Property Works-In-Progress Panel

Eric Claeys and I have organized a junior scholars property works-in-progress panel for the AALS meeting in New York.  Here are the details:

Call For Submissions

AALS Property Law Section Junior Scholars Works-In-Progress Panel

The AALS Property Law Section invites junior property scholars to submit works in progress for a junior scholars panel at the upcoming AALS Annual Meeting in New York  The panel will take place on Sunday, January 6, from 9:00 a.m. to 10:45 a.m.  At the panel, paper authors will have the opportunity to present their papers and receive commentary from senior scholars knowledgeable about their paper topics. 

Submissions:  Two papers and an alternate will be selected for the panel by blind peer review.  Papers should be submitted by e-mail to dbbarros@mail.widener.edu by September 15, 2007 with the subject line “Property Junior Scholars Panel.”  To facilitate blind review, authors should place their names and other identifying information on a separate cover page.  Authors also should alter or delete references within the text that would reveal their identities to a referee.  During the selection process, papers will be judged by how successfully they establish their contributions in a scholarly manner and by how substantially those contributions add to current property law and scholarship.

Eligibility:  The panel is open to scholars who (a) currently have a permanent or visiting appointment at an AALS member or fee-paid school; (b) have been teaching for six or fewer years; and (c) do not yet have tenure.  Papers that have been accepted for publication may be submitted for consideration, but only if they are early enough in the production process for the author to fully incorporate comments provided at the panel. 

Please direct any questions to the panel organizers, Ben Barros (dbbarros@mail.widener.edu) and Eric Claeys (eric.claeys@gmail.com).

Ben Barros

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GELPI Takings Conference at South Carolina

The Georgetown Environmental Law & Policy Institute's annual takings conference will be held at the University of South Carolina Law School on September 20 and 21.  The conference includes some interesting panels on Lucas v. South Carolina Coastal Council.  I attended GELPI's takings conference a couple of years ago and thought it was very well done.

Ben Barros

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Conference Announcement: Urban History Group

Urban History Group Annual Conference, 27-28 March 2008, University of Nottingham First Call for sessions and papers:

Urban Boundaries and Margins

This conference will explore the concept of boundaries and margins in the context of the city. The theme is interpreted broadly to encompass not only the identification of various types of boundaries - spatial, social, cultural, economic and political ­­­- but also the processes that help create, sustain as well as contest the legitimacy and practices of such boundaries. This focus draws attention to the differences as well as the similarities between various groups and activities in the city, and explores how these could change over time.

Themed sessions will include the following:

Age and life cycle issues in urban contexts

"Them and us"; class, race, ethnicity, culture

Trangressing norms of behaviour

Shifting concepts of day and night

Marginal groups and practices

Spatial and architectural margins in the home and the city

Administrative and political boundaries

Public and private space

The representation of boundaries

Boundaries of conflict and boundaries of order

The conference committee invites proposals for individual papers as well as for additional sessions. Abstract of up to 500 words should be submitted to the conference organiser and should indicate clearly how the content of the paper addresses the broad conference theme. Those wishing to propose additional sessions should provide a brief statement that identifies the ways in which the session will address the conference theme, a list of speakers and paper abstracts. The deadline for expressions of interest for sessions and papers is 30 September 2007.

In addition, the conference will also host a new researchers forum. This is aimed primarily at those who are at an early stage in a research project and who wish primarily to discuss ideas rather than present findings. New and current postgraduates working on topics unrelated to the main theme, as well as those just embarking on new research, are particularly encouraged to submit short papers for this forum.

Graduate students can obtain a bursary to offset some of the expenses associated with attending the conference. Please send an e mail application to Richard Rodger rgr@le.ac.uk and ask your PhD supervisor to also send a message confirming your status as a registered PhD student. The Urban History Group would like to acknowledge the Economic History Society for its support for these bursaries.

For further details please contact:

Dr David Green (conference organiser) Email: david.r.green@kcl.ac.uk - Department of Geography - King's College London - Strand - London - WC2R 2LS - UK - Tel: 44 (0) 20 7848 2721/2599 - Fax:44 (0) 20 7848 2287

Ben Barros

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Property, Citizenship and Social Entrepreneurism Workshop

Like Ben (and many other readers of this blog), I will be attending the Law and Society conference in two weeks.  Before that, I will be attending another conference, which focuses on property law.  The Center on Property, Citizenship and Social Entrepreneurism at Syracuse University College of Law, in conjunction with Durham University's Department of Law, will be sponsoring a workshop on comparative, transnational, and emerging issues in property law.  It will be held in Durham University on July 18-19, 2007.  I look forward to meeting some of you at either conference.

Rose Cuison Villazor   

Property at Law and Society in Berlin

I've gone through the preliminary program for the upcoming Law and Society Conference in Berlin and picked out as many property-related presentations as I could find.  The list is below the fold.  There's a lot going on, and I'm sure I've missed some things.  To make the list manageable, I've omitted panels that are focused only on intellectual property.  Please let me know by leaving a comment or sending me an e-mail if I've missed anything or made any errors in the listing.

Unfortunately, it looks as though several of the property panels conflict with each other, especially on Thursday morning and Saturday afternoon.  I'll be presenting a paper called Group Size and Heterogeneity in the Design of Legal Structures (abstract below) in the Property Rights: Structures of Property panel on Friday morning.

Ben Barros

Wed, Jul 25 - 10:15am - 12:00pm  Building/Room: HU / 35

Panel: The Legal Construction of Property Rights and Markets 1235 

Papers:

Péter Cserne (University of Hamburg), Contract Regulation between Paternalism and Freedom of Contract: A (Behavioral) Law and Economics Perspective

There is an enormous literature, doctrinal, historical, economic, sociological and philosophical on the limits of freedom of contract. What can psychological findings (empirical data about cognitive and emotional biases in information gathering, information processing, risk-assessment, choice consistency etc.) as referred to in "Behavioural Law and Economics" add to this? How can the findings in cognitive psychology about judgment and decision making change the justifiability and the extent of limiting freedom of contract? If it can be proven that people “fall prey to cognitive and emotional biases” systematically and repeatedly then these findings might support the case for paternalism in these given instances. Law’s response to bounded rationality can be manifold; also, the empirical findings alone do not justify legal intervention. Biases are context-dependent, embedded in a complex decision-making mechanism, privately hired experts can help individuals to choose more rationally, and learning effects can be at work. In a dynamic perspective, regulation may lead to the inhibition of learning rational choice in the future. After making sure that an instance of self-harming irrational behavior is at hand we have to ask whether and how (at what price) law can provide adequate solutions for the problem. Recently “libertarian” and “asymmetric” paternalism have been suggested as regulatory ideas which take into account both behavioural insights and economic and libertarian counterarguments. Although the ongoing discussion about contract regulation have significantly different accents in Europe and in the US, both end up in an empirically oriented pragmatic balancing of costs and benefits.

Jonathan Levine (University of Michigan), The Legal Construction of the Market Default in the U.S. Land-Use Debate

In Anglo-American law, the municipality has frequently been viewed as more like a private corporation than as the local cousin to the regulatory authority of the national government. And U.S. courts have often ruled as if the municipal power to regulate land use emanated directly from the property rights of landowners, rather than being the product of a delegation of the state’s police power. These observations are used here to explain a paradox in land-use policy. Urban sprawl is frequently analyzed in U.S. literature as a potential market failure. That is, where the harms of a low-density auto-oriented development pattern—or the benefits of compact, walkable, and transit-friendly alternatives—are scientifically proven, the rationale for governmental intervention into free markets has been established. Implicit to this formulation is the construction of a default alternative: where harms or benefits are absent or ambiguous, let the market determine metropolitan development densities and the rate of conversion of rural land to urban uses. The status quo in land development is thus implicitly equated with “the free market.” This is a surprising outcome, since land development is highly regulated at the municipal level through interventions including zoning, subdivision requirements, design regulations, and roadway and parking standards. This paper considers the manner in which the regulated reality of municipally controlled metropolitan development has come to be cast as an ostensible “free market.” This construction has impeded land-use policy reform by helping to establish scientifically conclusive proof-of-benefit as a prerequisite to changes in the status quo.

Noga Morag-Levine (Michigan State University), The Problem of Pollution Hotspots: Pollution Markets, Coase, and Common Law

The potential of pollution markets to exacerbate localized air pollution “hotspots” has led some to call the equity of such markets into serious question. This is not to suggest that conventional direct regulation is likely to eliminate variation in levels of pollution concentrations across differently situated locales. Nevertheless, it is over the ideal of feasible mitigation across all sources of pollution that the direct regulation and emissions trading approaches fundamentally diverge. The very quality that direct regulation conceives of as its virtue—across the board implementation of state-of-the-art controls—are construed by market approaches as an overly rigid rule in need of relaxation. The origins of this divergence, this paper will argue, are to be found in the respective legal traditions in which each of the two regulatory paradigms are rooted. Whereas technology standards are at their core a civil law instrument; emissions trading resonate with common law sensibilities. Support for this thesis comes from the significance of the common law’s locality doctrine in Coase’s “The Problem of Social Cost.” Through analysis of the common law’s role in Coase’s work the proposed article highlights important continuities between applicable regulatory suppositions under nuisance law and emissions trading. For students of comparative regulatory politics, the family resemblance between emissions trading and common law principles may help explain differences in the reception accorded to pollution markets in the U.S. and on the continent. The affinity between these markets and the common law can likewise help clarify the normative choices at stake.

Jonathan R. Nash (Tulane University), The Unknowing Race to Capture: Strategic Responses to Grandfathering

This project considers an increasingly common but largely overlooked and unexamined method of property allocation. The special feature of the unknowing race to capture is that the societal actors who engage in the behavior do not know at the time that they engage in the behavior exactly what behavior will entitle them to property. Unknowing races have emerged to allocate “grandfathering rights” under environmental regulation. For example, fishery quotas are sometimes allocated based upon legal fish landings in years before the regulation was in place. Traditional races to capture encourage excessive behavioral modifications by societal actors. The unknowing race ameliorates this by introducing legal uncertainty, which makes it harder for societal actors to modify their behavior in order to win the race. Over time, societal actors who have seen a number of unknowing races introduced may begin to anticipate them. They may alter behavior based upon speculation, and also engage in a race to capture the regulatory mechanism to ensure that the allocation device will reward them and not others. For continued effectiveness, the criteria for winning the unknowing race must be varied, unpredictably, over time. The question remains as to why the legislature, by reducing the chances of regulatory capture, would opt to forgo economic rents. Perhaps rather than challenge strong, preexisting norms, the legislature will devolve authority on regulatory bodies that are not beholden to interest groups. A more pessimistic answer is that, even under an unknowing race, the legislature retains the option to reward rent-seeking sub rosa.

Wed, Jul 25 - 10:15am - 12:00pm   Building/Room: HU / 20

Panel:  International and Comparative Law Approaches to Minority and Indigenous Peoples' Rights 1220

Papers include:

Hari Osofsky (University of Oregon), The Geography of Justice Wormholes: Dilemmas from Property and Criminal Law 

This Article provides a law and geography analysis of the ways in which our legal structures constrain the possibilities for justice for categories of people. It explores “wormholes” in the U.S. legal system that transport people pursuing claims under multiple theories of law into another timespace in which the basic protections of our legal system are absent. In particular, the article compares the barriers faced by post-9-11 “enemy combatants” and the indigenous peoples who were this country’s original inhabitants. Through an analysis of two representative case examples—José Padilla's "enemy combatant" designation and the taking of the Mary and Carrie Dann's land—the article considers (1) the way in which place, space, and time structure procedural and substantive injustice, (2) how different conceptions of "United States spaces" impact the possibilities for remapping these wormholes, and (3) the implications of this analysis for preventing future wormholes and comporting with justice's demands.

Thu, Jul 26 - 10:15am - 12:00pm  Building/Room: HU / 31

Panel:  Property Rights and Land Tenure in Law and Development in Comparative Perspective: From Ghana to South Africa to Turkey 2231

Panel Abstract:

All the papers in this session explore the core issue of land tenure within broader trajectories of law and development, situating case studies in Ghana, South Africa, urban governance in Istanbul and the broader normative implications for any case involving past dispossession.

Papers:

Bernadette Atuahene (Illinois Institute of Technology), From Reparations to Restoration: Legitimizing Property Rights When Past Theft Colors the Distribution of Property

How does a democratic state legitimize strong property rights when property arrangements are widely perceived to be defined by past theft? This can be done through restorative justice measures that redistribute wealth based on past dispossession. This answer, however, leads to two more complex questions: Who gets priority in the restorative process given limited resources and how should the process unfold? The concise answers to these two ancillary questions are: First, instances of what I call property-induced invisibility should be prioritized as a baseline for achieving legitimacy. When property is confiscated in this manner people are removed from the social contract and made invisible. Widespread invisibility is of particular concern because it can lead to chaos and instability and places the legitimacy of existing property arrangements in serious doubt. Consequently, states must, at minimum, rectify property-induced invisibility in the restorative process. Second, societies must change the focus from restoration of the physical property confiscated to the larger project of restoring an individual’s relationship to society. This will happen if those subject to property-induced invisibility are included in the social contract through a bottom-up process that provides the dispossessed with asset-based choices. The process of allowing people to choose how they are made whole will do a substantial amount of work towards correcting property-induced invisibility and thereby increasing the legitimacy of existing property arrangements.

Elizabeth Fortin (Sussex University), Experiential Knowledge of Tenure and Legal Knowledge of Tenure: Engagements with Land Tenure Reform in South Africa

Legislation reforming tenure is often based upon particular interpretations of the tenure situation to be reformed by people on the outside, rather than by reference to the shared realities of those who will be the subjects of the reforms. This paper considers such shared understandings of tenure of people living in the former ‘homeland’ areas in South Africa but then goes on to consider how particular forms of knowledge of such tenure has shaped approaches to its reform. The discussion draws upon a year’s multi-sited fieldwork involving archival research as well as ethnographic studies in policy-making, NGO and academic circles in South Africa as well as in communities themselves. The paper considers how the knowledge of tenure, ownership and rights of a key grouping participating in policy debates in South Africa has been shaped by their particular shared history in the struggle against apartheid. It looks at the assumptions that such knowledge has led to and on which particular models of reform embodied in proposed tenure legislation have been constructed. Understanding the extent to which different versions of reality have been embodied in law and policy is rarely explored, but this paper considers how particular models of reform, shaped by layers of discourses, construct spaces for engagement and so limit the questions that can be asked and the actors that can be involved.

Elizabeth Gianola (University of California, Berkeley), African Land Tenure Security in Comparative Perspective: The Cases of Ghana and South Africa

There is a fairly broad agreement that well crafted land rights are necessary to promote economic development in African countries. As customary land tenure remains the predominant model of landholding in rural Africa and land is the cornerstone of rural livelihood security, improving land tenure security is often equated with integration of customary land law into the modern statutory law of the state. However, integration must be achieved in corollary with reform of existing statutory law so that the legal structure is both adaptive to the market and supportive (or at least not destructive) of existing socio-cultural institutions. This paper examines statutory law (i.e., constitutional law and its application in case law) in Ghana and South Africa and reflects upon its ability to promote land tenure security and socio-economic development.

Tuna Kuyucu (University of Washington), Neoliberalism and Urban Governance: "Urban Transformation Projects" in Istanbul

During the last decade, Istanbul Municipality and the Turkish state has significantly changed their prevailing mode of approaching urban planning, urban governance, and, relatedly, regulating real-estate markets in the city. Similar to most developing countries experiencing large scale internal migration into urban areas, the Turkish state have traditionally dealt with the housing problem by not activating the law against the informally built settlements, thereby contributing to the expansion of ‘illegal’ areas within cities. Since the mid-1990’s, however, this mode of dealing with housing the urban poor has come to an end because of the unbridled liberalization of the economy and the emergence of lucrative land/housing markets in the shantytown areas. Rather than allowing the urban poor to appropriate land, the state now implements strict property rights and criminalizes illegal settlements. Nothing demonstrates this process better than the recent Urban Transformation Projects, passed as law from the parliament in 2005, that give almost unlimited powers to the municipality to re-construct the urban space in order to turn Istanbul into a ‘global city’. As part of these renewal projects, the municipality has designated 85,000 illegal units to be demolished and has completed about 2000 of these demolitions. When completed, these Projects will relocate about a million people in Istanbul. In this paper, I focus on these Projects to trace how neoliberalization of the economy creates new modes of urban governance, and consequently, new patterns of socio-spatial segregation. I argue that this ‘entrepreneurial’ style of urban governance generates heightened segregation, hierarchies and inequalities.

Thu, Jul 26 - 10:15am - 12:00pm  Building/Room: HU / 41

Panel: Property and Society: Theorizing Obligations in Ownership 2241 

Panel Abstract: 

In the legal and developmental literature, discussions of private property, whether real, movable, or intellectual, usually proceed from a set of neo-classical economic presumptions which emphasize property as a bundle of rights. Property rights are seen as a device for generating wealth for the private owner, through the exercise of these rights. And generating private wealth for the owner of property rights is by itself held to be synonymous with producing a public good.

However, the recent experience of many property regimes, in both developed and developing countries, suggests that this neo-classical, economic view is critically incomplete. Notions of property and ownership are often times being used as vehicles for imposing particular sets of social obligations. The social obligations that attach to property have both public (i.e., constitutional) and private law dimensions.  In some legal systems, these obligations are explicit. In others, they are less so. But the existence and prevalence of these obligations call into question the neo-classical economic model’s capacity to account fully for the relationship between property, social relations, and public good.

This panel brings together scholars working in a variety of methodologies, from normative theory to legal anthropology, and from the United States, Europe and China, who are presently engaged in theorizing the social obligations that attach to property ownership. Our goal is to study the character of obligations empirically and comparatively through case studies from different societies and jurisdictions, and also to think normatively about the implications of a theory of obligation for the development of private property regimes as a public good.

Papers:

Gregory S. Alexander (Cornell University), The Evolving Social Obligation of Ownership

In a private property regime do owners owe inherent duties to other members of society? Stated differently, are private property rights subject to an inherent social-obligation norm? Most lay people in the West (and perhaps many lawyers as well) are inclined to assume that the answer of most assuredly no. That is, they believe that the holders of private property rights are free to exercise their rights in any way they wish, free from any responsibility to others, except insofar as they have consensually agreed to be bound. Thoughtful observers, however, will quickly point out that private property rights are not and never have been absolute and that there is always some social-obligation limitation on the scope of private property rights. The relevant – and difficult – questions are, first, what is the basis for the social-obligation norm and, second, what is its scope.

Timothy K. Choy (Ohio State University), Prior obligations: attachments to ‘originality’ in post-colonial Hong Kong

This paper considers the social life of a colonial land law in Hong Kong. It focuses on the designation of certain people and villages that pre-dated British occupation in late 19th-century Hong Kong as indigenous or “Original.” The way this designation and its attribution of land ownership in fact formalized a colonial misunderstanding of customary Chinese law is well-known, and I do not seek in this paper to reiterate that critique. Instead, I explore how the peculiar property rights accorded Original inhabitants through their colonial designation as such have been re-inflected in Hong Kong in recent years through creative real estate investment strategies and political mobilizations, including an attempt by a fishing village to achieve status and rights akin to those of “Original” inhabitants on account of their village’s existence prior to colonial rule. I conclude with some implications of these examples for understanding the legal legacies of colonialism and relations between law and context.

Eduardo Penalver (Cornell University), Property Outlaws

Most people do not hold those who intentionally flout property laws in particularly high regard. The overridingly negative view of the property lawbreaker as a “wrong-doer” comports with the status of property rights within our characteristically individualist, capitalist, political culture. This reflexively dim view of property lawbreakers is also shared to a large degree by property theorists, many of whom regard property rights as a relatively fixed constellation of allocative entitlements that collectively produce stability and efficiency through orderly ownership. In this Article, we seek to rehabilitate, at least to a degree, the maligned character of the intentional property lawbreaker, and to show how property outlaws have played an important role in the evolution, modification, and transfer of property entitlements. We develop a typology of the property outlaw by distinguishing between “acquisitive” and “expressive” outlaws. Descriptively, we show that each type of property outlaw has enabled the reevaluation of, and, at times, productive shifts in the distribution or content of property entitlements. What emerges from this study is a vision of property law that focuses, not only on its capacity for fostering order and stability, but also on its dynamic function as a site for the resolution of conflict between owners and non-owners.

Eva Pils (Chinese University of Hong Kong), So Who Got Rich First? The Property Law Debate in China

When China’s draft property law failed to be enacted in March 2006 after intense public debate, various reasons were cited for this debacle: a high-level controversy about the direction of China’s reform process, Marxist criticisms of the draft claiming that it represented a violation of China’s socialist constitution, and popular outrage at China’s growing problem of social injustice. The present essay addresses the still ongoing debate about the question whether China should consolidate its current ownership regime by enacting the draft property law, as a debate in which different conceptions of equality are at play without having been fully articulated. Enactment of the current draft is likely to perpetuate existing legal discrimination, as well as to consolidate conditions which have already led to alarming social inequality. Both these problems could be better addressed if the social obligations related to ownership could be discussed more freely. In China, such a discussion would have to address private ownership, but also the economically, socially and politically important institution of socialist public ownership. What appears to hinder a deeper reform debate is the connection between the property regime in place and the interests of the Communist party elite. The recent Marxist criticisms of the proposed new property law have therefore successfully drawn attention to the fact that the Party’s claim to legitimacy now rests in the same institution, which also contributes to undermining that claim.

Thu, Jul 26 - 12:30pm - 2:15pm  Building/Room: HU / 31

Panel: Property, Citizenship, and Social Entreprenuerism in a Global Marketplace I 2331 

Panel Abstract:

This is panel one of two related panels that explore the relationships among property, citizenship and social entrepreneurism in a global market context. These relationships are critically important to understand in these times of major transition and transformation in the emerging and developing world.

The panels will explore the proposition that a just and accessible property law system is the basis for both good citizenship and successful economic development. Discussion will include consideration of all areas of property law and theory; including real, personal, intangible, intellectual, and cultural property.

Property, in all its forms, addresses the fundamental relationships between the state and its citizens, and among the people themselves. For this reason we will examine property in terms of its ability to foster democratic forms of governance, advance social justice, promote citizenship, build sustainable and supportive communities, and enhance the stewardship of our global environment and its natural resources.

Papers:

Tom Allen (University of Durham), The Function of Property and the European Convention of Human Rights

This paper investigates the nature of the right to property guaranteed under the First Protocol to the European Convention on Human Rights ('P1-1'). It argues that the European Court of Human Rights has been torn between two theories of the right to property. The first is the "integrated theory". It holds that the right to property shares common values and purposes with other Convention rights. It follows that the interpretation of P1-1 should reflect principles developed in the interpretation of other Convention rights. I will show that the integrated theory supports a "social model" of property, under which the Court would interpret P1-1 with a view to property's function in enabling individuals to play a meaningful role in the social, economic and political life of their community. The integrated theory is then contrasted with the "comparative theory" of P1-1. It tends to look outside the Convention for guidance on the interpretation of P1-1, to comparative law on rights of property. Implicitly, it rejects the notion that there is a strong link between the right to property and other Convention rights. In addition, it supports the use of either a "legal model" or an "economic model" of property in the application of P1-1, neither one of which give weight to the social function of property. The paper would show that it is the comparative theory that dominates the case law of the Court of Human Rights, and discusses how this illuminates the European conception of a human right to property.

Daniel Fitzpatrick (Australian National University), Property Regulation through Private Ordering: Some Insights from Social Trauma in Aceh and East Timor

The use of social norms and private ordering to regulate property continues to attract significant attention. It also attracts strange bedfellows: from Hayekian principles of spontaneous order, to anthropological interest in customary tenure, to economic theories of common property. All these sources of property theory explore the notion that norms and agreements may substitute for law. Yet, many questions remain about the nature and limits of private ordering, and the actual and appropriate interaction of laws, norms and agreements. This paper considers these questions in the context of severe trauma: genocide in East Timor and massive disaster in Aceh. Around 200,000 East Timorese - almost a third of the population - were killed in the Indonesian occupation of 1975-1999. Over 200,000 Acehnese were killed in the 2004 Indian Ocean tsunami. In each case, property systems were deeply affected by the destruction of most land records, displacement of over 500,000 people and damage or destruction of over 100,000 houses. In each case, as well, the predominant form of property regulation is custom and tradition, and the basic mechanism for restoring land rights has been norms and private agreements. The extreme circumstances of East Timor and Aceh open a window on private property ordering and its application to circumstances of social trauma. Based on extensive fieldwork in both environments, this paper will focus on three issues relating to the nature, efficacy and role of private ordering. First, it considers the mechanisms by which property systems recover through private ordering after disaster. Second, it considers the way in which private ordering adapts to displacement and the claims of social outsiders. Finally, it considers the under-recognized role of law in supporting and ameliorating private mechanisms for property rehabilitation.

Robin Paul Malloy (Syracuse University), Property in a Market Context

It is important for emerging and transitional economies to have an informed understanding of property in a market context. As F.A. Hayek suggested, the primary function of a market economy is not to allocate resources efficiently but to overcome knowledge problems resulting from dispersed and fragmented information. In this function the market is facilitated by a formal, transparent, stable, and predictable system of property rights. In this paper I discuss some of the implications of this Hayekian view which runs counter to the American law and economics paradigm. Significance is given to the idea that knowledge and information are socially situated and involve exchange within and among cultural-interpretive communities. In this context property functions as an information signifier for exchange, and communities with well developed property law infrastructure have a competitive advantage over communities without such systems.

Laura S. Underkuffler (Duke University), Property, Polity, and Structural Inequality

Recently, the question of the taking of private property for general economic development has loomed large in American constitutional jurisprudence. In particular, a recent decision by the United States Supreme Court which upheld the taking of modest private homes for the purpose of commercial and residential economic development ignited an unprecedented outcry from politicians, journalists, and ordinary citizens. This paper will explore the deeper structural issues in property and its protection that cases like this raise in the American and other constitutional (and non-constitutional) systems. It will argue that justice, in such cases, requires recognition of the deep linkages among property, the meaning of community, and socio-economic inequality.

Fri, Jul 27 - 8:15am - 10:00am  Building/Room: HU / 31

Panel: Property Rights: Structures of Property 3131

Papers:

Vardaan K. Ahluwalia (National University of Juridical Sciences), Intellectual Property Rights: Solution to the Impasse Between Individual and Society from an Indian Perspective

This paper is an attempt to analyse intellectual property rights in the context of the notion of individual and societal benefit under the Indian Constitution.This paper is therefore geared towards gaining an understanding as to what is the right choice in the Indian context. A strong intellectual property regime as advocated by the adherents of TRIPs or a weak intellectual property regime which existed until recently.This paper will seek to analyse both these perspectives in order to determine the best possible position for the Indian context. The paper will proceed in three parts. The first section of the paper will analyse the benefits of a strong intellectual property regime along the TRIPs lines, from the perspective of both the individual innovator and the society as a whole. The second section will consist of an analysis of the arguments against a strong intellectual property regime, followed by a study of the pharmaceutical sector in India in order to substantiate the concern raised.The aim herein will be to establish not only that the argument extended along the societal benefit lines is a non-functional one, but also that it works in reverse, causing more harm than good.The third section will be a constitutional analysis seeking to determine the position of the Indian Constitution as regards a conflict between the indivi