Wednesday, February 26, 2014
Writing for Slate, Eric Posner has a look at the dispute between China and Japan over who ownes the the Senkaku/Diaoyu Islands. The short article has a great passage about the relationship between property and power:
The international law that governs territorial disputes favors Japan. When no one occupies or controls a piece of territory, it is deemed terra nullius (“land belonging to no one”). That was the status of the islands before 1895. The ancient Chinese texts do not establish Chinese control. A typical example is a diplomatic record from 1534 that says, “The ship has passed Diaoyu Island.” The ship was carrying a Chinese official, but passing by an island and calling it Diaoyu does not establish sovereignty. A country does that by showing it has seized a territory through an official act and then exerted control over it or that its government has controlled it as long as anyone can remember. Since China did not control the islands before 1895, Japan had the right to seize them. It then lawfully maintained sovereignty over them by ruling them. [...]
And yet that’s hardly the last word on the matter. The rules of international law to which both sides appeal embody the power relationships that existed at the time of their emergence centuries ago. At that time, the great powers raced around the world claiming territories that were either unoccupied or occupied by native tribes. With a lot of territory to snap up, it made sense for them to implicitly agree not to contest one another’s conquests so that they could all concentrate on seizing the areas that were up for grabs. This raised some significant questions. Could one seize an entire continent by placing a flag on a tiny piece of it? Could one conquer an island by sailing by it and putting it on a navigation chart? To the contrary, the rough norms that evolved required more significant control—perhaps a post office or a military garrison. This ensured that a country could own territory only if it was powerful enough to control it.
In 1895, Japan was on the cusp of great-power status, while China was beset by internal turmoil and foreign pressures. Japan could control the islands; China could not. Now China has the upper hand and is unhappy with the 19th-century division of spoils. Why should it go along with territorial allocations that result from rules that favored strong nations a century ago?
Lea Brilmayer (Yale) and William Moon (Yale) have posted Regulating Land Grabs: Third Party States, Social Activism and International Law (Book Chapter) on SSRN. Here's the abstract:
This chapter explores how international law may regulate large-scale leases and acquisitions of land (“land grab”) that have accelerated in pace and scope in recent years. We start by identifying why the land grab phenomenon concerns food security. In particular, we observe that the lessor countries (those where the land is located) are almost invariably states plagued by corruption, lack of democracy, dependence on food aid, and weak property rights. Where agents (state leaders) have conflicts of interests with their principals (citizens) it cannot be assumed that these transactions will work to the local population’s advantage. After examining why international investment law is not equipped to police these transactions, we turn to sources within trade law. Because trade law concerns the cross border flow of products, it has the potential to de-incentivize food from leaving land grabbed states and deter similar transactions in the future. The central question, then, is whether World Trade Organization (WTO) law accommodates strategies that are designed specifically to discourage particular categories of free trade. Drawing on recent WTO jurisprudence, we propose labeling laws and import restrictions as potential regulations that may be adopted by third party states.
Tuesday, February 25, 2014
Paul Hiebert looks at our strange attachment to inanimate things:
Around mid-February, someone on Reddit posted a meme that declared the following: “Sometimes, when I grab a cup from my cabinet, I will grab one that’s in the back and never gets used because I think the cup feels depressed that it isn’t fulfilling it’s life of holding liquids.”
The sentiment proved popular. “I used to work at a toy store and if anyone ever bought a stuffed animal I would leave its head sticking out of the bag.. so it could breathe,” commented one Redditor. “I actually cried when we switched microwaves when i was a kid. I felt like we should have given it a proper burial or something,” wrote another. “I feel bad for inanimate objects all the time,” confessed yet another. Hundreds of other comments carried on in a similar vein.
Why is this? Why do some of us sometimes sense a pang of guilt for throwing away a pair of worn-out shoes or neglecting to use a new set of headphones? We know these things are without joy or loneliness, yet every now and then our emotions inform us otherwise. Perhaps this is the result of all those Disney films featuring a motherly teapot or brave little toaster.
[...] While some of these relationships seem a bit suspect, they do demonstrate what can happen when people personify things to the extreme. If anything, these examples show how far the human imagination can go (or how desperate some people are for attention). And though it’s not clear how many people view inanimate objects as having rich private lives or how often, all of the above suggests the phenomenon is neither new nor unusual. We are emotional creatures, and our emotions involuntarily attach themselves to all sorts of things, from places we’ve visited to a pair of earrings grandma left behind after she died to a cup located near the back of the cabinet.
The documentary posted above is Strange Love: Married to the Eiffel Tower, which profiles a woman who feels a deep emotional connection with public structures. “Despite our vast differences, we are very much in love, and our love in itself is no different from any other love that exists between two beings,” she says about the Golden Gate Bridge.
Michael Wolf (Florida) has posted Conservation Easements and the 'Term Creep' Problem (Utah Envtl Law Review) on SSRN. Here's the abstract:
This Essay (published in 2013 Utah Law Review and Volume 33 of the Utah Environmental Law Review) first discusses the “term creep” problem that has long plagued the Anglo-American common law of real property, that is, the tendency of common law courts (and in turn commentators and legislators) to use the same label to describe two or more conceptually discrete, though related, concepts. The confusion between easements of the “traditional” and “conservation” varieties is just one in a long line of situations in which the decision to allow often significantly dissimilar concepts to share the same name has led to unfortunate consequences.The second part of the Essay explains the substantive nature of the hybrids known most familiarly as conservation easements. Statutory and uniform law drafters were straightforward in their efforts to cherrypick the best attributes of traditional servitudes, while discarding troublesome disabilities, in order to achieve their admirable legislative goals.The third part asks why proponents of conservation restrictions should care about term creep, and the final section explores three benefits that outweigh the burdens of removing “easement” or “servitude” from the name of conservation restrictions and adopting the terminology used in the federal tax arena.
Monday, February 24, 2014
The L.A. Times shines a light on some sobering statistics:
- Citing Census Bureau data on homeownership by age, demographer Chris Porter of John Burns Real Estate Consulting calculates that Americans who were 30 to 34 in 2012 — those born between 1978 and 1982 — had the lowest homeownership rate of any similarly aged group in recent decades, 47.9%. By contrast, Americans born between 1948 and 1957 had a 57.1% ownership rate by the time they hit the 30 to 34 bracket. This is despite record low mortgage rates and bumper crops of bargain-priced foreclosures and short sales.
- Debt-payment-to-income ratios increasingly are mortgage application killers for would-be first-timers. Adoption nationwide last month of a new federal 43% maximum debt-to-income ratio for "qualified mortgages" is particularly poorly timed for young buyers. Because of large student debts, which average $21,402 but sometimes balloon into six figures, they may not be able to meet the 43% standard for years.
Slate highlights the above map:
The map above, created by math blogger and Google engineer Stefano Maggiolo (click here for a full-size version), shows the difference between clock time and “solar time”—a schedule in which the sun is at its highest point in the sky at exactly 12 noon.
For whatever reason, more of the world seems to be a little bit like Spain—the sun rises and sets later in the day than it should—than the other way around. The “late” places are shown in red, the “early” places in green. The deeper the shade, the more off the time is.
Gregory Stein (Tennessee) has posted Will Ticket Scalpers Meet the Same Fate as Spinal Tap Drummers? The Sale and Resale of Concert and Sports Tickets on SSRN. Here's the abstract:
Some people purchase concert or sports tickets for their own entertainment and then are unable to use their tickets. They may have a scheduling conflict, or their favorite team may be underperforming. Other people buy tickets with the intention of giving them as gifts. Still others purchase with the goal of reselling the tickets at a profit. This Article examines the transferability of tickets to performances and sporting events.
What, exactly, is a “ticket”? What property and contract rights does the initial ticket holder acquire? Does the holder have the legal power to transfer these rights? To what extent can the initial ticket seller limit that transferability? Does it matter whether the initial purchaser planned to sell at a profit all along? If there is a profit to be made, who is entitled to keep the resale premium? More generally, what are the economics of the market in ticket sales and resales?
Part I of this Article asks what legal rights a ticket creates under contract and property law and whether the party who acquires a ticket is legally empowered to reconvey it. Part II looks more globally at the economics of the market in sales and resales of tickets. Part III examines and compares the roles of the private market and the government in transactions involving the sale and resale of event tickets. Finally, Part IV looks to the future, suggesting some directions the ticket resale market may and should take as technology and the law continue to evolve and as the political process functions.
Friday, February 21, 2014
The Economist links the size of a nation's slums with its colonial legacy. The short explanation is that "Poorly-run colonial systems allowed for the emergence of dodgy groups that monopolise rental markets." A slightly longer take:
A new paper by Sean Fox of Bristol University focuses on absentee landlords in Kibera [a slum in Nairobi]. Well-connected types, Mr Fox finds, can acquire control over swathes of land thanks to their political connections. One survey found that 41% of Kibera’s landlords were in fact government officials: 16% were politicians. These landlords can exploit their privileged position. Research from MIT, again in Kibera, ﬁnds that when the chief of the local area and the landlord come from the same tribe (but the tenant does not), renters end up paying 6-11% more. Chiefs and landlords collude to extract higher rents. … Mr Fox reckons that these arrangements are partially a legacy of colonial rule. He argues:
Colonial administrative structures were weak and highly centralised, and municipal authorities were granted very limited authority over development and regulation … In a context of rapid population expansion, such structures have proven cumbersome and have contributed to the proliferation of unplanned settlements.
In other words, clumsy colonial governments were bad at controlling urban development. Mr Fox demonstrates this empirically. Legal fragmentation in the colonial era, a proxy for indirect rule, is strongly correlated with contemporary slum incidence (measured [in the above chart] as the percentage of a country’s urban population living in slums)….
(HT: Andrew Sullivan)
James Krier (Michigan) and Christopher Serkin (Vanderbilt) have posted The Possession Heuristic on SSRN. Here's the abstract:
This chapter for the forthcoming book, The Law and Economics of Possession (Yun-chien Chang, ed), explores the law of possession as an application of a heuristic (a simple decision making strategy devised to solve complex problems, part of System 1 thinking in Daniel Kahneman’s famous formulation). Since the law of property is essentially the law of belongings, its first task is to determine to whom things belong. There are all sorts of complicated inquiries that could be undertaken to figure out and justify an incredible range of answers to this question. Alternatively, there is a simple inquiry that provides a simple answer: A thing belongs to its possessor. This is the possession heuristic. The chapter canvases possession doctrines and ultimately argues that some current controversies in property, about the centrality of exclusion versus a social obligation norm in property, can be at least partly reconciled by viewing possession as a heuristic.
Wednesday, February 19, 2014
From the Atlantic Cities Blog:
Here's how flood insurance works, in the ideal. FEMA develops maps of areas near the coast or inland bodies of water and rivers. Those maps try and anticipate the likelihood of flooding, and if you build in zones that are likely to flood, you pay mandatory insurance premiums linked to the likelihood of it happening. If the property is flooded, FEMA pays out damages from the insurance program.
That's the ideal, anyway. As NBC News' Bill Dedman reports, hundreds of property owners have successfully lobbied to have the zones where their homes — or hotels — are located downgraded. Meaning that they pay less in insurance premiums, but still receive the same payout in the event of disaster.
(Image: screencap of NBC's map of successful flood insurance rezoning efforts)
Jessica Jay (Vermont) has posted Enforcing Perpetual Conservation Easements Against Third-Party Violators (UCLA J. of Envtl Policy) on SSRN. Here's the abstract:
Among the most daunting challenges the holder of a perpetual conservation easement faces is the enforcement of the easements it holds, for all time, and against all violators. National organizations estimate that at least forty million acres of land in the United States are protected with perpetual conservation easements. Each of these conservation easements is held by an entity, either a government agency or a tax-exempt, non-profit land trust, charged with the responsibility of enforcing easement violations against any and all violators. Holders must contend with violations caused by landowners and third parties. In the latter instance, someone who is not the owner of the easement-protected property enters the land by trespass without the knowledge or permission of the landowner or the easement holder, and violates the conservation easement. A Land Trust Alliance (Alliance) survey, specifically designed to gather information on conservation easement violations, reveals that behind successor-generation landowners, third parties are the most frequent class of easement violators. The findings of this survey track those of an earlier Alliance survey and are consistent with violation reporting in the most recent Alliance census. Further, anecdotal reporting of conservation easement violations indicates that many violations are caused by third parties — possibly as much as forty percent.
Monday, February 17, 2014
The New York Times has a fascinating story on Kilis, Turkey - a seemingly model refugee camp that's currently housing Syrians. The story explains how and why Turkey's refugee camps outperform the ones run by the UN:
Many of the world’s displaced live in conditions striking for their wretchedness, but what is startling about Kilis is how little it resembles the refugee camp of our imagination. It is orderly, incongruously so. Residents scan a card with their fingerprints for entry, before they pass through metal detectors and run whatever items they’re carrying through an X-ray machine. Inside, it’s stark: 2,053 identical containers spread out in neat rows. No tents. None of the smells — rotting garbage, raw sewage — usually associated with human crush and lack of infrastructure.
Chad Pomeroy (St. Mary's) has posted Why Is Property So Hard? (Rutgers Law Review) on SSRN. Here's the abstract:
This paper seeks to flesh out the heterogeneity and inherent difficulty of property law and to analyze it in depth. Part I begins this examination by setting up a taxonomy for property law and then describing the heterogeneity inherent in that context and the costs associated with that variability. Real estate law has continually evolved throughout American history — changing from a small, local business to a large, national one, spanning jurisdictional lines and limits — and it is the haphazard and varied nature of this evolution that has created this difficulty and cost. This is notable when contrasted with the homogeneity and relative stability of other areas of the law. And it is particularly notable when contrasted with one particular area of property law itself: when it comes to property form, property law is remarkably stable and predictable, and a closer examination of this exception to property’s broader heterogeneity leads to an enlightening analysis of the underlying reasons for the larger heterogeneity that is the focus of this article.
Part II undertakes just that sort of examination, examining property form in terms of the numerus clausus. This theory, which means “closed number,” was first discussed by European scholars and has more recently been propounded by Thomas Merrill and Henry Smith to describe and explain the fact that the wider variability of property law does not extend to common law restrictions on property types. In particular, they argue that the numerus clausus drives the standardization of property types by implementing an informational cost-benefit analysis that focuses on whether a new property type would provide helpful information to interested parties, the unique benefit of which exceeds the marginal informational costs thereof.
Part III applies an informational burdens analysis to property law generally by demonstrating its application to vesting, co-ownership, and third party property rights heterogeneity. Part IV then builds upon this construction to explain why this has not yet occurred in our system by focusing on the significant roll-back costs that would result from attempting to change established real property practices and laws. Any such attempt would upset settled expectation based upon prior precedent and hundreds of years of recorded documents, creating much higher costs than those usually associated with legal innovation.
The Article concludes that our property system is dangerously inefficient and costly and that the numerus clausus analysis provides a potentially adequate vehicle for addressing this problem, while acknowledging the very real costs associated with any such attempt.
Friday, February 14, 2014
The New York Times thinks so:
As baby boomers age, reverse mortgages are expected to gain popularity as a means of covering living expenses. Hence, in the future, more homes passed on to children will come with a bill attached — the balance due on these equity loans.
Federally insured reverse mortgages, officially issued as part of the Home Equity Conversion Mortgage program, are a way for homeowners 62 and older to borrow money using their home equity as collateral. The proceeds must first be used to pay off any remaining balance on the mortgage, which frees homeowners from monthly payments. Interest and monthly insurance premiums are charged throughout the life of the loan, and the total becomes due when the borrower dies (or permanently moves out of the home).
James Krier (Michigan) has posted Judicial Takings: Musings on Stop the Beach (Brigham-Kanner Property Rights Conference Journal) on SSRN. Here's the abstract:
This brief paper is a primer on and critique of judicial takings after Stop the Beach. Judicial takings weren’t much talked about until a few years ago, when the Stop the Beach case made them suddenly salient. The case arose from a Florida statute, enacted in 1961, that authorizes public restoration of eroded beaches by adding sand to widen them seaward. Under the statute, the state has title to any new dry land resulting from restored beaches, meaning that waterfront owners whose land had previously extended to the mean high-tide line end up with public beaches between their land and the water. This, the owners claimed, resulted in a taking of their property, more particularly their rights under Florida common law to receive accretions to their frontage on the water, and to have their property remain in contact with the water. The state supreme court disagreed, concluding that the owners never had the rights they claimed. The owners then sought (and were granted) review by the Supreme Court, the question now being whether the state supreme court’s decision worked a judicial taking because it was contrary to Florida common law. They lost, all of the participating justices concurring in the view that the Florida court’s decision did not contravene any established property rights.
Thursday, February 13, 2014
Linda Besner takes a look:
Disneyland’s evocation of the past makes the past feel safer and more harmonious than it was, and certainly the town square in Marceline was never as grand as the one on Main Street, U.S.A. But for urban planners hoping to evoke happiness, there is something to be learned from Disney. While our perception of the emotional lives of people living in small Victorian era towns may be idealized, the happiness-triggering physical space of Disneyland’s town square recreates a world we have more or less voluntarily destroyed: the world before mass urbanization and the dominance of car culture. In many ways, that world is the one to which urban designers focussed on happiness would like to help us return. The Victorian small town model of living, where the absence of cars meant a vibrant downtown with healthy small businesses, more contact between neighbours, and greater sense of civic unity is something we started abandoning en masse around the same time—the 1950s—that Walt was building Disneyland; now urban planners are designing those elements back into our neighbourhoods.
The criticism of Disneyfication is that it paves over reality with something forced. But any urban planning that does more than simply accept the way things are begins with fantasy. “The emerging consensus among psychologists and behaviour economists,” Montgomery writes, “is that as individuals and as a species, humans just aren’t that well equipped to make decisions that maximize our happiness.” If humans are so ill-equipped to make the right choices, anyone designing future cities has to take an active role in creating the kinds of neighbourhoods that people don’t seem to know they want. People love Disneyland in part because most people don’t care that much about authenticity. They feel safe knowing that a God-like figure has planned out their every move.
Wednesday, February 12, 2014
This might be of interest to some property profs: The National Endowment for the Humanities has announced a four-week inter-disciplinary program on the "Meanings of Property" to be held this summer at Marist College. Successful applicants will receive stipends to cover their travel and living expenses during the program. From the NEH:
Is property a God-given natural right for human self-preservation? Is property a method of controlling other humans, such as women and slaves? Is property a means of exploitation and accumulation, or is it an essential mediator between the individual and social dimensions of life? Such questions can be found in many different disciplines, often without dialogue or interrogation. This summer institute provides the opportunity to explore these different narratives in the company of leading scholars and teachers from a range of disciplines, in a beautiful setting by the Hudson River.
Christopher Newman (George Mason) has posted 'What Exactly Are You Implying?': The Elusive Nature of the Implied Copyright License (Cardozo Arts & Entertainment L.J.) on SSRN. Here's the abstract:
Every copyright lawyer knows Effects Associates v. Cohen, the case of the exploding alien yogurt. The Ninth Circuit’s opinion raises — and doesn’t really answer — troubling doctrinal questions about the nature of an implied copyright license: Is it a kind of contract, and if so, what kind? What principles govern whether one exists and whether it can be terminated? Is it transferable by the licensee? Does it bind assignees of the copyright? And what sources of law should courts look to in deciding these matters?
Building on prior work about the nature of a license interest, I provide an account of implied copyright license doctrine that seeks to answer these questions while staving off two different misconceptions. One is the faulty premise that licenses are contractual obligations, and that therefore findings of implied license must be somehow justified in accordance with state contract law. The other is the view that implied license is an open-ended invitation for courts to override owners’ rights of control in service of various policy goals.
Distinguishing implied license from the adjacent doctrines of estoppel, exhaustion, and compulsory license, I show it to be rooted, not in contract, but in the same implied consent that is recognized as providing a defense to property and other torts. Implied license doctrine uses context-based default rules to allocate the burdens of seeking or disclaiming grants of permission, thereby discouraging opportunism and reducing transaction costs without harming copyright owners’ legitimate interests in control. In addition, I show how explaining implied license doctrine through a property framework resolves the problems of irrevocability, transferability, and choice of law that have long led to confusion in this part of the law.