Friday, November 8, 2013
Gregory Alexander (Cornell) has posted Ownership and Obligations: The Human Flourishing Theory of Property (Hong Kong Law Journal) on SSRN. Here's the abstract:
The thesis of this brief paper is straightforward, although not uncontroversial: The moral foundation of property, both as a concept and as an institution, is human flourishing. In the remainder of my remarks I will explain what I mean by human flourishing, as I use the term, and I will distinguish human flourishing from welfare as that term is commonly used today by economists and legal analysts. I will then briefly illustrate the approach through an example.
Private property ordinarily triggers notions of individual rights, not social obligations. After all, the core function of private property, at least according to conventional lore, is to insulate individuals from the demands of society both in its organised political form and its non-political collective form. Of course, the common law has long recognised limits on the exercise of property rights, limits that grow out of the needs of others in cases of conflicting land uses. The obvious example is the common law of nuisance, which courts developed using the ancient maxim sic utere tuo ut alienum non laedas (“use your land in such a way as not to injure the land of others”) as their guiding principle. But such limits on property rights are considered the exception, not the rule, the periphery rather than the core. The core image of property rights, in the minds of many people, is that the owner has a right to exclude others and owes no further obligation to them. On this view trespass is the paradigmatic cause of action in the law of property. Hence if another intentionally commits trespass upon my land after I have refused permission to pass across it, the trespasser is properly liable for punitive damages even though only trivial damage was done to my property.
That image is highly misleading. The right to exclude itself, thought by many to be the most important twig in the so-called bundle of rights, is subject to many exceptions, both at common law and by virtue of statutory or constitutional provisions. For example, the common law requires landowners to permit police to enter privately owned land to prevent a crime from being committed or to make an arrest.
More generally, property owners owe far more responsibilities to others, both owners and non-owners, than the conventional imagery of property rights suggests. Property rights are inherently relational, and because of this characteristic, owners necessarily owe obligations to others. But the responsibility, or obligation, dimension of private ownership has been sorely under-theorised.
In this brief paper I shall outline a theory of property that emphasises the obligations that owners owe to others, specifically, to certain members of the various communities to which they belong. These obligations vary in different contexts and at different times. As society has grown more complex and more interdependent, the obligations have thickened. Capturing all of these obligations under one theoretical umbrella, one may speak of a social-obligation norm that the law does and should impose on owners. This norm, I want to stress, in inherent in the concept of ownership itself. This is an important point because it means that when the law, whether by way of statutes, administrative action, or judicial decisions, announces some restriction on an owner’s use of her land or building, insofar as that announcement restates what is already part of the social-obligation norm, it is simply a legal recognition of a restriction that is inherent in the concept of ownership rather than being externally imposed and engrafted upon the owner’s bundle of right.
The basis of this norm is human flourishing. The social-obligation theory builds on the claim that the basic purpose of property is to enable individual to achieve human flourishing. The theory further builds on Amartya Sen’s famous insight that flourishing is a matter of what a person is able to do rather than what he has. That is, the well-lived life should be measured by a person’s capabilities rather than by a person’s possession or by the satisfaction of his subjective preferences. Before developing the social obligation of ownership, I must first explain the foundational norm of human flourishing a bit further.
Thursday, November 7, 2013
Nestor Davidson (Fordham) and Sheila Foster (Fordham) have posted The Mobility Case for Regionalism (UC Davis Law Review) on SSRN. Here's the abstract:
discourse of local government law, the idea that a mobile populace can
“vote with its feet” has long served as a justification for devolution
and decentralization. Tracing to Charles Tiebout’s seminal work in
public finance, the legal-structural prescription that follows is that a
diversity of independent and empowered local governments can best
satisfy the varied preferences of residents metaphorically shopping for
bundles of public services, regulatory environment, and tax burden.
This localist paradigm generally presumes that fragmented governments are competing for residents within a given metropolitan area. Contemporary patterns of mobility, however, call into question this foundational assumption. People today move between — and not just within — metropolitan regions, domestically and even internationally. This is particularly so for a subset of residents — high human-capital knowledge workers and the so-called “creative class” — that is prominently coveted in this interregional competition. These modern mobile residents tend to evaluate the policy bundles that drive their locational decisions on a regional scale, weighing the comparative merits of metropolitan areas against each other. And local governments are increasingly recognizing that they need to work together at a regional scale to compete for these residents.
This Article argues that this intermetropolitan mobility provides a novel justification for regionalism that counterbalances the strong localist tendency of the traditional Tieboutian view of local governance. Contrary to the predominant assumption in the legal literature, competition for mobile residents is as much an argument for regionalism as it has been for devolution and decentralization. In an era of global cities vying for talent, the mobility case for regionalism has significant doctrinal consequences for debates in local government law and public finance, including the scope of local authority, the nature of regional equity, and the structure of metropolitan collaboration.
Wednesday, November 6, 2013
The LA Times reports:
Unknown masterpieces by artists such as Marc Chagall and Henri Matisse, works thought lost to the ravages of war and others deemed "degenerate" or looted by the Nazis form part of the spectacular trove of art discovered by German authorities in the apartment of an elderly recluse in Munich.
Two days after news of the find broke, officials in southern Germany revealed Tuesday that the hoard contains 1,406 pieces by masters whose names read like a who's who of Western art of the last 150 years: Pablo Picasso, Pierre-Auguste Renoir, Henri Toulouse-Lautrec, Gustave Courbet, Oskar Kokoschka, Emil Nolde.
But the authorities seem unsure what they'll do with the paintings:
Since word of the cache emerged, advocates of returning art looted during the war have criticized German officials for keeping quiet so long and for failing to issue an inventory as quickly as possible to allow heirs of the original owners to reclaim what was stolen.
Nemetz [the state prosecutor] said that keeping the works safe was crucial and that their security could have been compromised by a media frenzy surrounding news of their discovery. He does not intend to exhibit or publish images of the entire stash, and it will be up to people who believe that a former family possession might be included to contact his office.
"Our primary goal is to investigate whether there has been a crime," Nemetz said. "It is by no means easy to find the rightful owners, particularly when we are talking about more than 1,400 paintings."
He added: "It is totally counterproductive for us to go public with this case. We don't want to keep the pictures. The pictures are not going to be put up in my office."
Steven Eagle (George Mason) has posted Penn Central and Its Reluctant Muftis (Baylor Law Review) on SSRN. Here's the abstract:
This Article explores the role of the Supreme Court’s Penn Central line of regulatory takings cases, from the premise that the purpose of the Penn Central doctrine is to advance fundamental fairness in an era of pervasive land use regulation. In particular, the Article focuses on whether the doctrine inherently is self-defeating, since judges are reluctant to act as “grand muftis” of zoning and planning, and hence are driven towards the type of formulaic rules that the doctrine eschews.
Tuesday, November 5, 2013
Allison Schrager thinks so. She proposes:
This year, Americans on Eastern Standard Time should set their clocks back one hour (like normal), Americans on Central and Rocky Mountain time do nothing, and Americans on Pacific time should set their clocks forward one hour. After that we won’t change our clocks again—no more daylight saving. This will result in just two time zones for the continental United States. The east and west coasts will only be one hour apart. Anyone who lives on one coast and does business with the other can imagine the uncountable benefits of living in a two-time-zone nation (excluding Alaska and Hawaii).
Why stick with a system designed for commerce in 1883? In reality, America already functions on fewer than four time zones. I spent the last three years commuting between New York and Austin, living on both Eastern and Central time. I found that in Austin, everyone did things at the same times they do them in New York, despite the difference in time zone. People got to work at 8 am instead of 9 am, restaurants were packed at 6 pm instead of 7 pm, and even the TV schedule was an hour earlier. But for the last three years I lived in a state of constant confusion, I rarely knew the time and was perpetually an hour late or early. And for what purpose? If everyone functions an hour earlier anyway, in part to coordinate with other parts of the country, the different time zones lose meaning and are reduced to an arbitrary inconvenience. Research based on time use surveys found American’s schedules are determined by television more than daylight. That suggests in effect, Americans already live on two time zones.
Stephen Miller (Idaho) has posted Community Land Trusts: Why Now is the Time to Integrate this Housing Activists’ Tool into Local Government Affordable Housing Policies (Zoning & Planning Law Report) on SSRN. Here's the abstract:
A recent study found that housing expenses in the period from 2006 to 2010 were 52 percent higher for the typical household living in each of the 25 largest U.S. metropolitan areas than they had been in 2000. This rise in housing expenses, coupled with stagnant wages in those same locations over the same period, is one of the major reasons that community land trusts (CLTs) have risen from a fringe housing movement to the center of cities’ efforts to provide affordable housing within the last decade. In addition, many cities see CLTs as a way to provide perpetually affordable units, a benefit not provided by inclusionary zoning ordinances that often only require affordability for a term of years. This article explores how some cities have already added CLTs to their list of affordable housing policy tools, ultimately arguing that the current economic environment presents a strong case for more cities to start CLTs at this time. Even where cities are not ready to take such steps now, the dramatic rise in CLT formation nationally, as well as the massive city-wide CLTs planned for several major cities in the U.S., such as Chicago, Illinois and Irvine, California, are developments that land use and zoning lawyers will want to watch. If the massive CLTs ultimately work as planned, other cities are likely to follow suit in embracing CLTs, a move that in turn could alter how project proponents meet inclusionary housing requirements and revolutionize how affordable housing dollars are spent by local governments. The article proceeds by offering a history of CLTs; reviewing 10 characteristic features of the “classic” CLT structure; reviewing the rise of cities’ use of CLTs and presents, in detail, a review of two of the most ambitious city-backed CLTs started by Chicago and Irvine; reviewing several legal and policy issues unique to city CLTs; and finally making the case for why cities should consider starting CLTs now.
Monday, November 4, 2013
Some Canadian doctors have put forth a proposal to pay kidney donors $10,000:
"Our model demonstrated that a strategy where living donors are paid
$10,000, with a corresponding assumption this strategy would increase
the number of transplants performed among wait-listed dialysis patients
by five per cent, would be less costly and more effective than the
current organ donation system," Lianne Barnieh of the University of
Calgary and her co-authors concluded in an upcoming issue of the
Clinical Journal of the American Society of Nephrology.
Money would be saved from reduction in dialysis costs, Barnieh said. The length and quality of life for patients with end-stage renal disease would also increase.
(HT: Volokh Conspiracy)
The New York Times looks at how a flurry of new construction could cut off large swaths of Central Park from the sun and asks why more people aren't complaining:
Fueled by lax zoning laws, cheap capital and the rise of a global elite with millions to spend on pieds-à-terre, seven towers — two of them nearly as tall as the Empire State Building — have recently been announced or are already under way near the south side of the park. This so-called Billionaires’ Row, with structures rising as high as 1,424 feet, will form a fence of steel and glass that will block significant swaths of the park’s southern exposure, especially in months when the sun stays low in the sky. [...]
That means the shadows of the larger of these planned buildings would jut half a mile into the park at midday on the solstice and elongate to around a mile in length as they angled across the park toward the Upper East Side, darkening playgrounds and ball fields, as well as paths and green space like Sheep Meadow that are enjoyed by 38 million visitors each year. “The cumulative effect of these shadows will be to make the park less usable and less pleasant to be in,” Mr. Kwartler said.
(HT: Celeste Pagano)
Sjef Van Erp (University of Maastricht) has posted Contract and Property Law: Distinct, but not Separate on SSRN. Here's the abstract:
and property law are traditionally seen as rather distinct parts of a
legal system. However, there is growing awareness that contract and
property are not so separate at all. We can observe more and more fuzzy
boundaries. Four examples (case studies) are discussed: reclaiming
money, the non-accessory mortgage, protection of mortgagors, private
re-registration of mortgages in the US: Mortgage Electronic Registration
Systems (MERS). The fuzzy boundaries make us realise that the
distinction between contract and property (in the classical, 19th
century, model of private law: the absence or presence of the binding
force of an arrangement on third parties) is becoming less of a binary
and more of a gradual nature.
It seems that a growing category of intermediary rights is developing, rights between contract and property law, which may very well prove to have become no longer a dogmatic anomaly, but a necessary supplement to the traditional distinction between contract and property law. If this analysis is correct, it might imply that we have to rethink our categorisation of private law into a law of contract and a law of property, as we had to rethink the categorisation of private law into a law of contract and a law of tort after Gilmore’s famous statement that contract law was dead, or at least drowning in a sea of tort. It is not argued that contract law, again, is dead, but that contract law may have begun a new life as part of a broader category of arrangements regarding objects with burdening effect vis-à-vis third parties, where classical contract is one end of the spectrum (no third party effect) and property is the other end of the spectrum (full third party effect).
Friday, November 1, 2013
A landlord plans to inspect rental units for bed bugs with a trained dog. But one tenant says doing so would violate her religious beliefs. The LA Times looks for answers under California law:
The answer to this question requires a balancing act. Your legal duty to respect your tenant's religious beliefs must be balanced against your duty as a landlord to take timely and reasonable steps to maintain the habitability of the rental premises. Under Civil Code Section 1941, that duty requires you to provide premises free from vermin infestation to all your tenants.
If you give proper written notice under Civil Code Section 1954, you have a right to enter the rental unit to address the vermin issue. A tenant would ordinarily have no right to object or refuse entry. Assuming you have correctly concluded that using a dog for the bedbug inspection is an appropriate and effective means of inspecting for bedbugs and that there is no effective alternative at the same cost, your plan does not constitute religious discrimination.
1. [436 downloads] Uneasy Intersections: The Right to Foreclose and the UCC
Elizabeth Renuart (Albany)
2. [296 downloads] Trying Times: Important Lessons to Be Learned from Recent
Federal Tax Cases
Nancy A. McLaughlin (Utah) Stephen J. Small
4. [149 downloads] Coase Minus the Coase Theorem - Some Problems with Chicago
Transaction Cost Analysis
Pierre Schlag (Colorado)
6. [114 downloads] Freedom of Contract and the Endangered Right to Transfer
Andrea J. Boyack (Washburn)
7. [99 downloads] Property Before Property: Romanizing the English Law of Land
Thomas J. McSweeney (William & Mary)
9. [90 downloads] Trusts and Estates: Implementing Freedom of Disposition
Robert H. Sitkoff (Harvard)
Konstantin Sonin (Norhwestern) Daniel Diermeier (Northwestern) Georgy Egorov (Higher School)
Thursday, October 31, 2013
Gerry Breyer is on the case:
If you die, your rewards points may die with you. According to a recent study by market research firm Colloquy, major rewards programs like Delta SkyMiles, Southwest Rapid Rewards, and Hilton HHonors generally do not allow points to be transferred after death.
According to their research, outstanding loyalty points had an estimated total value of $50 billion in 2011, but around 76% of loyalty club members have not considered who would inherit their balances.
Their study also shows that many companies may not have considered the issue either. American Express Membership Rewards, Citibank’s ThankYou Rewards, and Best Western Rewards don’t detail their policies online, which can lead to conflicting interpretations from customer service reps. Other companies can have complicated or restrictive inheritance policies such as only allowing transfers to spouses, only allowing heirs to redeem points but not transfer them, requiring executors to pay transfer fees, or requiring a death certificate to be sent within a certain time frame.
Loyalty club members should consider including account numbers, passwords, and balances as an addendum to their will. However, bequeathing point balances will not supersede the terms of service of particular programs.
Click here for a chart detailing different policies from major airline, hotel, and credit card rewards programs.
See Kelli B. Grant, ‘Til Death Do Us Part: Reward Points Don’t Live On, CNBC, Oct. 24, 2013.
Sheila Foster (Fordham) has posted Breaking Up Payday: Anti-Agglomeration Zoning and Consumer Welfare (Ohio State Law Journal) on SSRN. Here's the abstract:
In the last decade, dozens of local governments have enacted zoning ordinances designed to limit the concentration of payday lenders and other alternative financial services providers (AFSPs), such as check-cashing businesses and auto title loan shops, in their communities. The main impetus for these ordinances is to shield economically vulnerable residents from the industry’s lending practices in the absence of sufficiently aggressive federal and state consumer protection regulation. This Essay casts considerable doubt on whether zoning is the appropriate regulatory tool to achieve the consumer protection and welfare goals animating these ordinances. The author’s analysis of the aftermath of payday lending zoning restrictions in one state demonstrates that while such laws may play a role in reducing the number of payday lenders in the immediate urban area, they do not shield consumers from these lenders altogether. Further, the economic literature on agglomeration economies suggests that there are costs to consumer welfare from limiting or breaking up retail agglomerations. Such “anti-agglomeration” zoning restrictions can prevent consumers from capturing the benefits of the price and product competition that result from retail agglomerations. This Essay concludes that if the main impetus behind anti-agglomeration zoning measures is to protect local residents from the high interest rates and loan terms associated with the payday industry, it might be that these measures are working against their intended purpose and actually harming consumers who lack viable financial services alternatives. As such, in weighing the costs and benefits of payday lender agglomeration, lawmakers should consider more carefully the effects of anti-agglomeration zoning measures on consumer welfare.
Wednesday, October 30, 2013
Sharmila Murthy (Suffolk) has posted Land Security and the Challenges of Realizing the Human Right to Water and Sanitation in the Slums of Mumbai, India (Health and Human Rights) on SSRN. Here's the abstract:
Addressing the human right to water and sanitation in the slums of Mumbai, India requires disentangling the provision of basic services from a more complicated set of questions around land security and land ownership. Millions of slum-dwellers in Mumbai lack adequate access to safe drinking water and sanitation, which places them at risk for waterborne diseases. Many slums are located in hazardous areas such as flood plains, increasing their susceptibility to climate change-related weather patterns. Access to water and sanitation in slums generally hinges on whether a dwelling was created prior to January 1, 1995, because those constructed created prior to that date have greater land security. Although the so-called “1995 cut-off rule” looms large in Mumbai slum policy, a closer reading of the relevant laws and regulations suggests that access to water and sanitation could be expanded to slums created after January 1, 1995. State and municipal governments already have the authority to expand access to water services; they just need to exercise their discretion. However, slums located on central government land are in a more difficult position. Central government agencies in Mumbai have often refused to allow the state and municipal governments to rehabilitate or improve access to services for slums located on their land. As a result, an argument could be made that by interfering with the efforts of subnational actors to extend water and sanitation to services to slum-dwellers, the central government of India is violating its obligations to respect the human right to water and sanitation under international and national jurisprudence.
Tuesday, October 29, 2013
Adam Clulow, writing for The Atlantic, highlights the wonderfully weird criminal case against Lamont Maurice Butler. Butler was recently charged with conspiracy to commit burglary, burglary, and attempted theft for taking possession of a $6 million 12-bedroom, 17-bathroom estate in suburban Maryland. Butler's defense:
[O]n December 17 last year, he presented himself before the Maryland Department of Assessments and Taxation to demand that the records be altered to reflect the fact that he was assuming ownership as a representative of the so-called Moorish Nation of Northwest Amexem, North America, an imagined community that supposedly predated both the modern United States and European colonization of the Americas. Some weeks later on January 3, he employed a similarly bold strategy when questioned by his new neighbors, who had noticed unexpected activity on the property. His response was a detailed “history lesson” that was repeated to police officers arriving on the scene two days later.
Clulow then shows that Butler's claims aren't actually that outlandish when viewed through the lens of history. They mirror, quite nicely, the declarations of some early European explorers in the New World:
One example comes from exactly five hundred years before Butler-El claimed his Bethesda mansion when Vasco Núñez de Balboa, a Spanish adventurer, crossed the Panamanian isthmus with a small party in search of the mysterious ‘other sea.’ Arriving at the shores of the Pacific Ocean, he paused for a moment, waiting on the beach for the tide to come in before staging an act of possession of such audacity that it still retains the power, even centuries later, to stun. Wading into the warm waters up his knees, he proceeded to claim the ocean itself “now and for all time so long as the world shall last, until the final universal judgment of all mortals.” The unlimited ambition of such moments, and here again there is a parallel with what happened in Bethesda, meant that they frequently crossed the line into farce.
Hanoch Dagan (Tel Aviv University) has posted Expropriatory Compensation, Distributive Justice, and the Rule of Law on SSRN. Here's the abstract:
This Essay examines the possible justification for providing less than full (fair market value) compensation for expropriation. One obvious justification applies in cases of public measures, where the burden is deliberately distributed progressively, namely, where redistribution is the desired goal of the public action or, at least, one of its primary objectives. Beside this relatively uncontroversial category, two other explanations are often raised: that partial compensation is justified by reference to the significance of the public interest, even if it is not redistributive, and that it can serve as a means for adjusting the amount of the compensation to the specific circumstances of the case. This Essay criticizes both justifications, arguing that the former is normatively impoverished while the latter affronts the rule of law. The notion of partial and differential compensation, however, can serve as a powerful tool for developing a nuanced expropriation doctrine that serves important property values, and also targets the potentially regressive effects of a uniform rule of full market value. The proposed doctrine draws careful, rule-based distinctions between types of injured property (fungible vs. constitutive) and types of benefited groups (local communities vs. the broader society).
Monday, October 28, 2013
Slate picks up on idea that's been floating around in academic circles:
For a long time the economics profession has quietly noted that a land value tax is economically efficient but, having sussed out its theoretical benefits, left the subject for more intellectually rewarding pursuits. The result is a frustrating dearth of scholarship on the subject. But the few detailed papers that do exist suggest land taxes can replace most levies on labor and capital which—if true—suggests that the failure to switch to land value taxes is a much bigger deal in practice than most economists realize.
The most comprehensive work on this subject I could find is Steven Cord’s 1985 paper in the American Journal of Economics and Sociology, "How Much Revenue Would a Full Land Value Tax Yield." His answer was that it could replace much more than half all taxes on labor and capital in that year. That’s stunning . . . .
[A] big benefit of land taxes is the incentive to bring land into intense use which, by definition, would be valued on the margin. Land taxes might not work, but that's an argument nobody is making.
Faithful blog commentator, Wyn Achenbaum, has been making some of these points for years. Here blog is here: http://lvtfan.typepad.com
The Salt Lake Tribune has obtained the architectural records for Mitt Romney's home that's under construction in Holladay, Utah. The paper has made an awesome discovery: the house has a secret room. And yes, it's totally hidden behind a bookcase.