Tuesday, December 2, 2014
Christopher Essert (Queens) has posted Property in Licenses and the Law of Things (McGill Law Journal) on SSRN. Here's the abstract:
A theoretical account of property rights needs to identify what, if anything, is distinctive about property rights as opposed to other sorts of rights; what makes them the sorts of rights that they are. An important and prominent account of the distinctiveness of property rights claims that they are rights to things. I argue against this view: I show that a government-issued licence (to fish or to drive a taxi or to operate a radio station, say) is not a right to a thing but should nevertheless count as a property right. I consider two different arguments for this rights-to-things view: one is based on the Hohfeldian structure of property rights, and one relies on the importance of information costs in the law of property. While each of these arguments teaches us important lessons about property, none can properly support the conclusion that property is rights to things. I suggest that abandoning the rights-to-things view of property can lead to important insights into property theory more generally.
Monday, December 1, 2014
This documentary about race and intergenerational wealth transfer may be of interest for some. Here's the blurb: "Black Heirlooms is a documentary about wealth in America from an intergenerational perspective. When the 86-year-old matriarch, Mee-Mah Royal was hospitalized after a stroke, her 8 children became irreconcilably divided over her care and small estate. Through the stories of her children, grandchildren, and supporting interviews with prominent researchers, lawyers, and financial planners– Black Heirlooms examines the need for intergenerational planning to transfer family wealth, traditions, and values."
In honor of the beginning of the month, here are the most downloaded property articles on SSRN over the last 60 days:
1. [372 downloads] Trying Times: Important Lessons to Be Learned from Recent Federal Tax Cases
Nancy A. McLaughlin (Utah) & Stephen J. Small (Independent)
2. [230 downloads] The Behavioral Law and Economics of Fixed-Rate Mortgages (and Other Just-So Stories)
Todd J. Zywicki (George Mason)
5. [96 downloads] Using the New Equal Protection to Challenge Federal Control Over Tribal Lands
Alexander Tallchief Skibine (Utah)
7. [93 downloads] Doctrinal Categories, Legal Realism, and the Rule of Law
Hanoch Dagan (Tel Aviv)
8. [93 downloads] Libertarianism and Originalism in The Classical Liberal Constitution
Ilya Somin (George Mason)
10. [84 downloads] Abuse of Property Right Without Political Foundations: A Response to Katz
Mitchell N. Berman (Penn)
Thursday, November 27, 2014
In honor of the holiday, we usually post an article about how private property saved the pilgrims. Benjamin Powell, an economist at Suffolk, gives a good version of the story here. You can find the same tale on any number of more conservative websites (see here, here, and here).
This year we post a rebuttal:
Historians say that the settlers in Plymouth, and their supporters in England, did indeed agree to hold their property in common — William Bradford, the governor, referred to it in his writings as the “common course.” But the plan was in the interest of realizing a profit sooner, and was only intended for the short term; historians say the Pilgrims were more like shareholders in an early corporation than subjects of socialism.
“It was directed ultimately to private profit,” said Richard Pickering, a historian of early America and the deputy director of Plimoth Plantation, a museum devoted to keeping the Pilgrims’ story alive.
The arrangement did not produce famine. If it had, Bradford would not have declared the three days of sport and feasting in 1621 that became known as the first Thanksgiving. “The celebration would never have happened if the harvest was going to be less than enough to get them by,” Mr. Pickering said. “They would have saved it and rationed it to get by.”
The competing versions of the story note Bradford’s writings about “confusion and discontent” and accusations of “laziness” among the colonists. But Mr. Pickering said this grumbling had more to do with the fact that the Plymouth colony was bringing together settlers from all over England, at a time when most people never moved more than 10 miles from home. They spoke different dialects and had different methods of farming, and looked upon each other with great wariness.
Bill Fischel's take on the dispute rings true:
In Property in Land, Bob Ellickson pointed out that early settlers often adopted communal modes of production. He suggested that it was a strategy to deal with risk. Once risks are reduced by acquaintance with the new environment, they can adopt more conventional modes of production, including private property. So it could be that the story of starvation followed by prosperity is not simply a parable about private property. In an unknown environment, perhaps neither private nor communal property would have been all that productive, and communal was chosen in order to reduce the risk of starvation. Once that risk was reduced by acquaintance with the new environment, private property could be re-established in order to increase production.
Tuesday, November 25, 2014
Maybe privitized streets aren't such a good idea:
In September, the operator of the Indiana Toll Road filed for bankruptcy, eight years after inking a $3.8 billion, 75-year concession for the road with the administration of Governor Mitch Daniels.
The implications of the bankruptcy for the financial industry were large enough that ratings agency Standard & Poor’s stepped in immediately to calm nerves. In a press release, the company attempted to distinguish the Indiana venture from similar projects, known as public-private partnerships, or P3s: “We do not believe this bankruptcy will slow the growth of current-generation transportation P3 projects, which have different risk characteristics.”
But the similarities between the Indiana Toll Road and other P3s involving private finance can’t be ignored. And as we’ll see, even the differences aren’t all good news for the American public. Once hailed as the model for a new age of U.S. infrastructure, today the Indiana deal looks more like a canary in a coal mine.
Troy Rule (Arizona State) has posted Legislating for Solar Access: A Guide and Model Ordinance on SSRN. Here's the abstract:
Solar energy development is an increasingly attractive way to diversify a community’s energy portfolio, stimulate job creation, reduce pressure on electricity grids, and protect natural resources. Recognizing the potential benefits of solar power, state and local governments across the United States have introduced net metering programs, tax credits, subsidies, renewable portfolio standards, and countless other policies in recent years to promote solar energy within their boundaries.
The growing popularity of solar energy has also increased the demand for laws that adequately protect solar energy systems from shading by neighbors. Such laws, commonly known as solar access laws, can reduce one source of uncertainty associated with installing solar energy systems on privately-owned property and can thereby encourage greater overall investment in distributed solar energy development. Fortunately, compared to most other forms of solar energy legislation, solar access laws are inexpensive to adopt and administer.
This Guide and its accompanying Model Solar Access Ordinance seek to educate local government officials about solar access laws and to assist them in adopting such laws within their respective jurisdictions. Building upon existing research by Solar ABCs and others, this Guide shows how solar access ordinances can be a low-cost way for local governments to better promote distributed solar energy.
Monday, November 24, 2014
In recent years, as the boom really exploded, the number of reported spills, leaks, fires and blowouts has soared, with an increase in spillage that outpaces the increase in oil production, an investigation by The New York Times found. Yet, even as the state has hired more oil field inspectors and imposed new regulations, forgiveness remains embedded in the Industrial Commission’s approach to an industry that has given North Dakota the fastest-growing economy and lowest jobless rate in the country.
The Times found that the Industrial Commission wields its power to penalize the industry only as a last resort. It rarely pursues formal complaints and typically settles those for about 10 percent of the assessed penalties. Since 2006, the commission has collected an estimated $1.1 million in fines. This is a pittance compared with the $33 million (including some reimbursements for cleanups) collected by Texas’ equivalent authority over roughly the same period, when Texas produced four times the oil.
The latest nuisance lawsuit to demonstrate the failure of Coasian bargaining:
Nurettin Akgul, an unhappy neighbor of Babbo, has just filed a $10 million lawsuit against Mario Batali for failing to keep the noise and the smells of his Greenwich Village classic in check. The retired oil executive claims that he made a deal with Batali last year, when the Croc-clad chef applied for a zoning variance that would allow him to operate the restaurant in a residential neighborhood. Akgul promised not to fight the application, as long as the Batali camp agreed to do a whole host of things, including soundproofing the air conditioners, keeping the kitchen exhaust in check, and not letting staff hang out on the roof.
According to the lawsuit, Batali got his variance, but then failed to keep his end of the deal. Akgul now complains of "unrelenting vibrations" from the air conditioners, and steady fumes of grease and garlic. Batali's group has so far declined to comment on the situation.
(HT: Miriam Cherry)
Friday, November 21, 2014
The CityLab Blog says now is the time to get rich:
[P]rofits for flipping are as high as they've ever been. In the third quarter of 2014, investors on average saw a 36 percent gross return on their investment (not including some costs, including rehab costs). That's down from the average gross one year ago (37 percent) but still quite high, historically.
"The record-high average profits per flip in the quarter demonstrate that flippers are still filling an important niche in an aging housing market with historically low levels of new homes being built," said RealtyTrac Vice President Daren Blomquist in a release. "The most successful flippers are buying older, outdated homes in established neighborhoods and rehabbing them extensively to appeal to modern tastes."
That means that the buyers still flipping properties in places like Miami, Los Angeles, and New York are making a killing at it.
Orly Lobel (San Diego) has posted The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property (Texas Law Review) on SSRN. Here's the abstract:
Contemporary law has become grounded in the conviction that not only the outputs of innovation – artistic expressions, scientific methods, and technological advances – but also the inputs of innovation – skills, experience, know-how, professional relationships, creativity and entrepreneurial energies – are subject to control and propertization. In other words, we now face a reality of not only the expansion of intellectual property but also cognitive property. The new cognitive property has emerged under the radar, commodifying intellectual intangibles which have traditionally been kept outside of the scope of intellectual property law. Regulatory and contractual controls on human capital – post-employment restrictions including non-competition contracts, non-solicitation, non-poaching, and anti-dealing agreements; collusive do-not-hire talent cartels; pre-invention assignment agreements of patents, copyright, as well as non-patentable and non-copyrightable ideas; and non-disclosure agreements, expansion of trade secret laws, and economic espionage prosecution against former insiders – are among the fastest growing frontiers of market battles. This article introduces the growing field of human capital law, at the intersections of IP, contract and employment law, and antitrust law, and cautions against the devastating effects of the growing enclosure of cognitive capacities in contemporary markets.
Thursday, November 20, 2014
There's not much I enjoy more than watching a property feud erupt. I recently came across the following post on the Fayetteville Craigslist site:
The text of the post indicates that the landlord and the neighbors have been fighting over a local ordinance that prohibits more than three unmarried people from living together. The post is a great example of how routine disputes between landowners can escalate into bitter fights:
Possible vacancy coming soon! Check back for date-availability.
Neighbors and City are attempting to chase out engineering students, so we need no more than three unrelated persons to sign the lease. We don't care how many people visit or how long they stay - just don't get caught. Must agree to have a goat in the front yard and never to bathe it. (We will provide the goat, food, water, and you won't have to take care of it or anything. The goat will be equipped with a weather-proof microphone and small speakers. We want to be sure the neighbors can see, hear, and smell the goat.) In the warmer months, we encourage you to make sweet sweet love, loudly, with the windows open. We might provide a microphone and speakers for that, too, if our attorneys approve.
Two beds, one bath, one living area on each of two floors (total: 4 beds, 2 baths, 2 living rooms). Bonus room is plumbed for a wet bar or could be used as a fifth bedroom. Huge fenced backyard features an upstairs covered patio, downstairs deck, hot tub hook-up, and fire pit. Huge oak trees in front and backyards.
Laundry chute from upstairs bathroom to downstairs. All hard surface flooring (wood and tile).
House has parking for six vehicles, but you can walk to campus quicker from this house. Wonderful set-up for students.
The Washington Post's Rick Noack elaborates:
Nearly 36 million people in 167 surveyed countries live in modern slavery. Such exploitation is not unique to Asian or African countries and is even present in the United States where a report released by the Australia-based Walk Free estimates about 60,000 slaves exist in the shadows of American society.
Modern slavery can take many forms that are not necessarily part of more traditional definitions of slavery. The authors of the Global Slavery Index broadly define modern slavery as involving "one person possessing or controlling another person in such as a way as to significantly deprive that person of their individual liberty, with the intention of exploiting that person through their use, management, profit, transfer or disposal." This includes people subjected to sex trafficking or indentured by debt bondage.
Albert Zevelev (Wharton - Ph.D. Student) has posted Regulating Mortgage Leverage: Fire Sales, Foreclosure Spirals and Pecuniary Externalities on SSRN. Here's the abstract:
The US housing boom was accompanied by a rise in mortgage leverage. The subsequent bust was accompanied by a rise in foreclosure. This paper introduces a dynamic general equilibrium model to study how leverage and foreclosure affect house prices. The model shows how foreclosure sales, through their effect on housing supply, amplify and propagate house price drops. A calibration to match the bust shows consumption and housing need to be sufficiently complementary to fit the data. Since leverage plays a key role in foreclosure, a regulator can reduce systemic risk by placing a cap on leverage. Counterfactual experiments show that in a world with less leverage, the same economic shock leads to less foreclosure and less severe, shorter busts in house prices. A 90% cap on loan-to-value ratios in 2006 predicts house prices would have fallen 12% rather than 18% as in the data. The regulator faces a trade-off in that less leverage means less housing for constrained households, but also fewer foreclosures and less severe busts in house prices. A regulator with reasonable preference parameters would choose a cap of 95%.
Tuesday, November 18, 2014
A great opportunity for any young scholar interested in property or land use:
The Furman Center for Real Estate and Urban Policy at New York University invites applications for a post-graduate legal fellowship. The Furman Center’s law fellowships are designed for promising legal scholars with a strong interest in housing, local government, real estate or land use law. The Fellow’s time is shared equally between independent research on topics of their choice and preparation to enter the academic job market, and Furman Center projects, conducted jointly with faculty members, graduate students, and staff. Recent projects have addressed such topics as the consequences of mortgage foreclosures, the effects of inclusionary zoning, and the impact of housing vouchers on crime. The Fellow also helps produce the Center’s annual State of New York City’s Housing and Neighborhoods report. The Law Fellow is invited to participate in faculty workshops, colloquia, and other scholarly forums at the NYU School of Law. The fellowship typically begins summer/fall of 2015.
A J.D. degree, superior academic achievement, excellent writing skills, initiative, and a demonstrated interest in and commitment to scholarship are required.
Applicants should submit a cover letter, curriculum vitae, scholarly writing sample, and the names and contact information of 3 references. Applications are preferred by 12/1/2014 but will be given consideration until the position is filled. Review of applications will begin immediately and will be evaluated on a rolling basis. Candidates of interest only will be contacted.
To apply: Application materials and questions should be sent to firstname.lastname@example.org. Please include “Legal Research Position” in the subject line.
Jacqueline Peel (Melbourne) & Hari Osofsky (Minnesota) have posted Sue to Adapt? (Minnesota Law Review) on SSRN. Here's the abstract:
Climate change litigation has influenced regulation substantially in the United States. Most notably, the Supreme Court’s decision in Massachusetts v. EPA serves as the basis for federal Clean Air Act regulation of greenhouse gas emissions from motor vehicles and power plants. However, most U.S. litigation thus far has focused on mitigation, i.e., how to limit emissions of the greenhouse gases that cause climate change.
This Article is the first to address the significance of an emerging area of U.S. litigation: cases focused on forcing or limiting government action to adapt to climate change. These new lawsuits – on issues such electric grid resiliency, protective sand dunes, coastal sewage system inundation, deterioration of coastal waters, and flood insurance – will help shape local, state, and federal efforts to plan for the impacts of climate change.
Although the United States has just begun to address adaptation in its courts, other common law countries are farther along. In particular, Australia, which faces many early impacts from climate change due to its geography, has more developed adaptation policy and jurisprudence. This Article not only explores the role of the developing U.S. case law, but also considers how the Australian experience might inform U.S. approaches. Drawing from extensive interviews with U.S. and Australian litigants and regulators in addition to doctrinal analysis, the Article argues that the Australian litigation illustrates pathways for U.S. litigation to build on its early cases to: (1) change planning culture, (2) use natural disasters as catalysts for adaptive planning, and (3) navigate more effectively the tensions between public adaptation interests and private property rights.
Monday, November 17, 2014
Every language has filler words that speakers use in nervous moments or to buy time while thinking. Two of the most common of these in English are “uh” and “um.” They might seem interchangeable, but data show that their usage break down across surprising geographic lines. Hmm.
[...] To uncover the geography of filler words, Grieve ran through the Twitter corpus to find how often a given American county uses “um” over “uh” and vice versa. After that, he used an algorithm known as “hot-spot testing” to smooth out the results and make them more meaningful.
The smoothed-out version has a lot to say. The regional breakdown is clear, and it doesn’t look much like other maps that try to show where some phenomenon or another is happening in the United States. Grieve said the use of “uh” looks to follow the elusive “Midland dialect,” which linguists have suspected follows the Ohio River southwest from central Pennsylvania. That accounts for most of the blue that sweeps from West Virginia all the way to Arizona. Grieve said the “uh” and “um” analysis is the first time his research has shown clear evidence of the Midland dialect.
Jessica Owley (Buffalo) has posted Preservation Is a Flawed Mitigation Strategy (Ecology Law Currents) on SSRN. Here's the abstract:
The objective of the Clean Water Act is to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. To help achieve that objective, the Clean Water Act limits the ability to dredge or fill a wetland. To do so, one must first obtain a section 404 permit. These permits, which are issued by the Army Corps of Engineers (“Corps”) with coordination and oversight from the Environmental Protection Agency (EPA), require project proponents to avoid, minimize, and compensate the harms of any wetland destruction or modification. Compensatory mitigation is a troubling concept in wetlands regulation because it acknowledges wetland destruction will occur. Instead of preventing wetland conversion, developers compensate for wetlands lost. Compensatory mitigation can come in the form of restoration, creation, enhancement, and/or preservation of wetlands and other aquatic resources. This essay urges the Corps to eliminate its use of preservation as mitigation and to improve accountability mechanisms where private organizations, like land trusts and private mitigation banks, remain involved in wetlands permitting programs. As even the EPA acknowledges that preservation results in a net loss of wetlands, preservation is unlikely to compensate for the loss in ecological function from wetlands destruction. Additionally, because private land trusts commonly manage, monitor, and enforce preservation areas, concerns of accountability and democracy arise. Although I focus on the Clean Water Act’s section 404 program, the arguments and lessons discussed here apply to state and local wetland mitigation programs as well.
Friday, November 14, 2014
The Norton Simon Museum is asking the U.S. Supreme Court to review what its attorneys call a "profoundly misguided decision" by a federal appeals court that has kept alive a lawsuit aimed at wresting away ownership of two of the Pasadena museum's most prized holdings: paired depictions of Adam and Eve by the German Renaissance painter Lucas Cranach the Elder.
The nearly 500-year-old paintings are believed to have been stolen by the Nazis in 1940 from Jacques Goudstikker, a Dutch-Jewish art dealer. His daughter-in-law, Marei Von Saher, sued the museum for their return, in a case that has lasted more than seven years. In June, in a 2-1 ruling, the U.S. 9th Circuit Court of Appeals resurrected Von Saher's case against the museum after it had been dismissed by a federal judge in Los Angeles.
The petition the museum sent this week to the Supreme Court urges it to take up the case because, it contends, the 9th Circuit ruling conflicts with legal principles already upheld by the Supreme Court, and could open the door for other cases that would improperly try to second-guess U.S. foreign policy outcomes.
[...] The foreign policy question at issue in Von Saher vs. Norton Simon stems from the post-World War II U.S. policy known as "external restitution," in which Nazi-looted artworks recovered by American forces were sent back to the countries where they had been stolen. It was left to the postwar governments of the formerly Nazi-controlled nations to invite claims to looted art and judge whether they were valid. The argument is now over whether the Dutch government's handling of the Goudstikker family's claim to "Adam" and "Eve" satisfied the requirements of the external restitution policy.
Michael Blumm (Lewis & Clark) and Lynn Schaffer (Lewis & Clark) have posted The Federal Public Trust Doctrine: A Law Professors' Amicus Brief on SSRN. Here's the abstract:
This amicus brief, signed by more than 50 law professors with over a collective 1100 years of teaching experience, argues that the D.C. Circuit's interpretation that the public trust doctrine is solely a product of state law -- and therefore inapplicable to the federal government -- was erroneous. The brief therefore urges the Supreme Court to review the lower court's decision in Alec L v. McCarthy, 561 F.Appx. 7 (D.C.Cir. 2014).
The brief claims that the public trust doctrine has been misunderstood as purely a matter of state common law when in fact it is an inherent limit on sovereignty antedating the U.S. Constitution, which was preserved by the Framers as a reserved power restriction on both the federal and state governments. Nothing in the Court’s recent decision in PPL Montana v. Montana, 132 S.Ct. 1215 (2012) -- which the lower court misinterpreted -- indicates otherwise.
The federal nature of the public trust doctrine was recognized over a century ago by the Supreme Court in Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892). That decision has functioned as binding federal law and has been so understood by the vast majority of states. Interpreting that decision as an expression of state law is erroneous.
As a constitutionally recognized limit on sovereignty, the public trust doctrine -- unlike a common law doctrine -- is not subject to displacement by congressional statutes. The brief cites numerous opinions of the Supreme Court that have recognized the doctrine’s applicability to the federal government, which reinforce the notion that the Constitution recognizes the public trust doctrine as a reserved power withheld from both the federal and state governments.