Tuesday, April 16, 2013
What Super-density Looks Like
Sprankling on the Global Right to Property
John Sprankling (McGeorge) has posted The Global Right to Property (Columbia J. of Transnational Law) on SSRN. Here's the abstract:
right to property exist under international law? The traditional
answer to this question is “no” ― a right to property can arise only
under national law. But sweeping economic and political changes in
recent decades have laid the foundation for recognizing a global right
to property. Ideological opposition to property rights has faded with
the end of the Cold War; China, Russia, and other socialist states have
transitioned to market economies which are premised on private property;
and the globalization of trade has enhanced international support for
protecting property rights. Accordingly, it is appropriate to revisit
This article challenges the conventional wisdom that a right to property can arise only under national law. It is the first legal scholarship to demonstrate that a right to property exists under international law, not merely as a moral precept but rather as an entitlement which all nations must honor. The existence of the global right to property is supported by three independent lines of analysis: conventional law; general principles of law; and customary international law.
Recognition of the global right to property has practical implications for the international legal system. It will ensure that the right is respected in proceedings before international judicial and arbitral tribunals. Over time, it will also contribute to building the legal framework for regulating property in the global commons, areas which are outside of the sovereign jurisdiction of any nation such as the high seas, outer space, and Antarctica.
Monday, April 15, 2013
Map of the Day: States Where You Can be Denied Housing Because of Your Marital Status
National Fair Housing Alliance has released a report today on "Modernizing the Fair Housing Act for the 21st Century." The report highlights all the ways that landlords remain free to discriminate. From the summary at the Atlantic Cities Blog:
Federal laws don't protect against housing discrimination on the basis of sexual orientation, gender identity, income source or marital status (whether or not you're married is a different question from if you have kids). Many states do this on their own. But a surprising number don't. Today, it's still possible for a landlord in Texas to refuse to rent you an apartment with your live-in girlfriend (married couples only!), for a property management company in Alabama to turn you away because you're gay or transgendered, or for a homeowner in Indiana to decline your application because your income (which is enough to cover your rent) comes from housing vouchers, child support or alimony.
Property Tax By State
TaxFoundation.org recorded property taxes throughout the United States for a three-year period ending in 2009, allowing taxpayers to examine average property taxes by county. Tax-Rates.org then took the information and calculated averages by state. Here's a list of the state average property tax, based on percentage of home value:
Alabama — 0.33 percent
Alaska — 1.04 percent
Arizona — 0.72 percent
Arkansas — 0.52 percent
California — 0.74 percent
Colorado — 0.6 percent
(More below the Jump)
Alexander on the Moral Obligations Property Owners Owe to Future Generations
Greg Alexander (Cornell) has posted Unborn Communities on SSRN. Here's the abstract:
Do property owners owe obligations to members of future generations?
Although the question can be reframed in rights-terms so that it faces
rights-oriented theories of property, it seems to pose a greater
challenge to those theories of property that directly focus on the
obligations that property owners owe to others rather than (or, better,
along with the rights of owner). The challenge is compounded where such
theories emphasize the relationships between individual property owners
and the various communities to which they belong. Do those communities
include members of future generations? This paper addresses these
questions as they apply to a property theory that I have developed in
recent work, a theory that we can call the human-flourishing theory of
The conclusion drawn here is that property owners do indeed owe moral obligations to future generations. But the scope of those obligations is restricted, certainly more so than some theorists, such as Jeremy Waldron, have claimed. Unlike Waldron, for whom such obligations are a matter of rights, I argue that the obligations that property owners owe to past generations are grounded on dependence. Specifically, I argue that if we expect fellow members of our communities in future generations to continue what I call the life-transcending projects that we began, then it is incumbent on us to provide that same background conditions that we enjoyed to those future generation community members to whom we transfer the responsibility of continuing or fulfilling our life-transcending projects. Moreover, as the distance between the living and the unborn increases, our obligations to future generational communities generally weaken. Our obligations to them are limited to the background conditions that enable them to continue the life-transcending projects transferred to them. These conclusions place me in an intermediate position between those who take a robust view of the obligations that the living owe to future generations and those who think that the living owe no such obligations at all.
Friday, April 12, 2013
Kansas Outlaws Sustainability (Or At Least Thinks About It)
Over at Land Use Prof, Jessie Owley highlights Kansas' attempt to rid the state of the scourge of sustainable development:
Politicians in Kansas . . . seem to have been contemplating the power of law to dictate sustainability rules. House Bill No. 2366 currently before the Kansas state legislature would make it illegal to use “public funds to promote or implement sustainable development." Frankly with the trouble surrounding just trying to define what should be considered "sustainable development," I am not sure how meaningful such a law would be -- put gotta appluad tease Kansas for trying. As a professor at a public school, I find the provision restricting the teaching of sustainability to be especially worrisome [no public funding can be used for "materials prepared or presented as part of a class, course, curriculum or instructional material"].
Next thing you know, states will be outlawing climate change.
Davidson on New Formalism in the Aftermath of the Housing Crisis
Nestor Davidson (Fordham) has posted New Formalism in the Aftermath of the Housing Crisis (Boston University Law Review) on SSRN. Here's the abstract:
housing crisis has left in its wake an ongoing legal crisis. After
housing markets began to collapse across the country in 2007,
foreclosures and housing-related bankruptcies surged significantly and
have barely begun to abate more than six years later. As the legal
system has confronted this aftermath, courts have increasingly accepted
claims by borrowers that lenders and other entities involved in
securitizing mortgages failed to follow requirements related to
perfecting and transferring their security interests. These cases –
which focus variously on issues such as standing, real party in
interest, chains of assignment, the negotiability of mortgage notes, and
the like – signal renewed formality in nearly every aspect of the
resolution of mortgage distress. This new formalism in the aftermath of
the housing crisis represents something of an ironic turn in the
jurisprudence. From the earliest history of the mortgage, lenders have
had a tendency to invoke the clear, sharp edges of law, while borrowers
in distress have often resorted to equity for forbearance. The
post-crisis caselaw thus upends the historical valence of lender-side
formalism and borrower-side flexibility.
Building on this insight, this Article makes a normative and a theoretical claim. Normatively, while scholars have largely embraced the new formalism for the accountability it augurs, this consensus ignores the trend’s potential negative consequences. Lenders have greater resources than consumers to manage the technical aspects of mortgage distress litigation over the long run, and focusing on formal requirements may distract from responding to deeper substantive and structural questions that still remain largely unaddressed more than a half decade into the crisis. Equally telling, from a theoretical perspective, the new formalism sheds light on the perennial tension between law’s supposed certainty and equity’s flexibility. The emerging jurisprudence underscores the contingency of property and thus reinforces – again, ironically – pluralist conceptions of property even in the crucible of hard-edged formalism.
Thursday, April 11, 2013
Places of Perpetual Fire
Slate profiles the "Door to Hell" in Derweze, Turkmenistan:
In 1971 a Soviet drilling rig rumbled across the hot, expansive Karakum desert of Turkmenistan in search of natural gas. They found a large gas pocket near the 350-person village of Derweze, but as the team drilled into the earth, the rig punctured the cavern and collapsed into it, creating a 328-foot crater leaking deadly natural gas. The Soviets abandoned their rig and lit the hole on fire. It has been burning for 40 years.
The article also lists these other places of neverending fire:
- Centralia, the Pennsylvania town sitting atop a massive coal fire
- Burning Mountain, the 6,000-year-old coal fire that moves one meter per year
- Yanar Dag, the "fire mountain" of Azerbaijan
Davidson on Navigating HUD Programs
Nestor Davidson (Fordham) has posted A Most Useful Ball of Thread (Journal of Affordable Housing & Community Development) on SSRN. Here's the abstract:
This book review of Navigating HUD Programs: A Practitioner’s Guide to the Labyrinth (George Weidenfeller & Julie McGovern eds., 2012) discusses the approach the book takes to a range of HUD programs, discusses some intimations of reform efforts suggested by the authors, and explores ways in which the book’s guidance reflects potential benefits in nascent HUD efforts at programmatic consolidation and modernization.
Wednesday, April 10, 2013
Can the Dead Own Property?
Over at Concurring Opinions, Meredith Render meditates on death and meaning of ownership:
Herein enters the perennial problem of death. When an owner is a natural person (rather than, for example, a corporation), then death would seem to present an obstacle to owning. When an owner dies, her capacity to make decisions about the use of an entity is terminated. Unlike in the newborn example, that capacity is not dormant, it is extinguished forever. If the capacity to exercise control over an entity is a necessary criterion of ownership, we would not expect deceased people to be capable of ownership. This intuition is supported by the fact that generally when an owner dies, the object of ownership passes (by will or intestate succession) to another owner. In this instance, there is no continuity of “ownership” – the new owner does not act on the behalf of the deceased owner – the ownership simply ends with the owner.
A notable exception to this scenario exists in the context of trusts. A trust presents challenge to our conventional understanding of “ownership,” – and particularly to the idea of ownership as a capacity. This is so not only because “ownership” is split in the context of a trust between equitable and legal owners, but also because some degree of control over the trust assets seems to be retained by the settlor. In this sense, the settlor seems to continue to act as a kind of “owner” of the assets, even though the settlor may be deceased. This phenomenon is sometimes referred to as “dead hand control.” Lately I’ve been thinking about this phenomenon in the context of the commitments implicit in our concept of “owner.” The interplay of these ideas is especially interesting in the context of what is sometimes described as a “dynasty trust.” A dynasty trust has the potential to endure into perpetuity, long after the settlor is deceased. I’ll be posting more on dynasty trusts, death and the concept of “owner” in the weeks to come.
Mossoff on Copyright and Scholarly Publishing
Adam Mossoff (George Mason) has posted How Copyright Drives Innovation in Scholarly Publishing on SSRN. Here's the abstract:
copyright policy is framed solely in terms of a trade off between the
benefits of incentivizing authors to create new works and the losses
from restricting access to those works. This is a mistake that has
distorted the policy and legal debates concerning the fundamental role
of copyright within scholarly publishing, as the incentive-to-create
conventional wisdom asserts that copyright is unnecessary for
researchers who are motivated for non-pecuniary reasons. As a result,
commentators and legal decision-makers dismiss the substantial
investments and productive labors of scholarly publishers as irrelevant
to copyright policy. Furthermore, widespread misinformation about the
allegedly “zero cost” of digital publication exacerbates this policy
This paper fills a gap in the literature by providing the more complete policy, legal and economic context for evaluating scholarly publishing. It details for the first time the $100s millions in ex ante investments in infrastructure, skilled labor, and other resources required to create, publish, distribute and maintain scholarly articles on the Internet and in other digital platforms. Based on interviews with representatives from scholarly publishers, it reveals publishers’ extensive and innovative development of digital distribution mechanisms since the advent of the World Wide Web in 1993. Even more important, this paper explains how these investments in private-ordering mechanisms reflect fundamental copyright policy, as copyright secures to both authors and publishers the fruits of their productive labors. In sum, copyright spurs both authors to invest in new works and publishers to invest in innovative, private-ordering mechanisms. Both of these fundamental copyright policies are as important today in our fast-changing digital world as they were in yesteryear’s world in which publishers distributed scholarly articles in dead-tree format.
Tuesday, April 9, 2013
Are Pocket Neighborhoods The Next Big Thing?
A pocket neighborhood is a grouping of smaller residences, often built around a common courtyard, designed to promote a heightened sense of community and neighborliness. In the last few months, they've gotten good press on the Huffington Post, the Atlantic Citites Blog, and Yahoo. From the Yahoo story:
Who likes pocket neighborhoods? [Architect Ross Chapin] argues that we’re all drawn, as social creatures, to community. But in the 15 years since he first developed pocket neighborhoods he’s found a few groups who really identify with the idea.
“One is the baby boomers, as they move toward retirement,” Chapin said. “We’re seeing huge numbers of people who are trying to imagine their dream home for the next part of their life. A house that’s big enough but not too big, simpler and where the key notes are quality and community.” Other groups include active single women as well as echo-boomers — the 20- and 30-somethings trying to define their idea of the dream home.
The Second Most Stolen Food Item?
Police said Monday an unknown number of culprits made off with 5 metric tons (5.5 tons) of Nutella chocolate-hazelnut spread from a parked trailer in the central German town of Bad Hersfeld over the weekend.
If the authorities are smart, they'll start by interviewing Columbia students studying abroad in Germany this semester. Additionally, everyone in Germany should be keep their eyes peeled for anyone trying to steal an entire freight train worth of bananas.
Rose on Racially Restrictive Covenants
This article was given as the 6th Annual Wolf Family Lecture on the
American Law of Real Property, University of Florida Levin College of
Law (2013). It draws on property law discussions in Richard R.W. Brooks
and Carol M. Rose, Saving the Neighborhood: Racially Restrictive
Covenants, Law, and Social Norms (Harvard Univ. Press 2013). The article
outlines the ways in which constitutional law and property law engaged
in a dialog about white-only racial covenants from their early
twentieth-century origins to the middle of the twentieth century and
beyond. After a shaky beginning, both constitutional law and property
law became relatively permissive about racial covenants by the 1920s.
But proponents of racial covenants had to work around property law
doctrines — including seemingly arcane doctrines like the Rule Against
Perpetuities, disfavor to restraints on alienation, "horizontal
privity," and "touch and concern." Moreover, property law weaknesses
gave leverage to civil rights opponents of covenants, long before
Shelley v. Kraemer (1948), the major constitutional case that made these
covenants unenforceable in courts. Even after Shelley's constitutional
decision, property law continued to be a contested area for racial
covenants, with echoes even today.
Monday, April 8, 2013
The First Co-op
The New York Times takes a look at the history of the Rembrandt, the first co-op building in the US:
Although an 1882 pamphlet issued by the developers renounced “any socialistic union, even of the most plausible and conservative character,” there was talk of buying coal and ice in bulk and retaining a common staff for cooking and laundry.
The developers said that they were looking for “people of means and good social standing”; the advent of the resident-owned building, and hence the co-op board, allowed control over one’s neighbors, which was something no other apartment house could provide.
Map of the Day: Most & Least Religious Metro Areas
From the Atlantic:
Baron on the Bundle of Rights Metaphor
Jane Baron (Temple) has posted Rescuing the Bundle of Rights Metaphor in Property Law (Cincinnati Law Review) on SSRN. Here's the abstract:
much of the twentieth century, legal academics conceptualized property
as a bundle of rights. But property theory today is deeply divided
between theorists who focus on property’s ends, i.e., its reflection of
values such as democracy or human flourishing, and those who focus on
property’s means, i.e., its use of qualities such as modularity and
exclusion to manage complexity in a cost-effective way. The
bundle-of-rights conceptualization has been swept up into the
controversy, becoming the particular target of means-focused theorists,
who argue that the bundle conceptualization obscures critical features
of the property system, most notably its use of strategies of exclusion,
in rem rights, and indirectness. These theorists assert that,
twentieth century wisdom notwithstanding, property is not a bundle of
rights but rather is a law of things.
Contrary to these theorists, this Article argues that the bundle-of-rights conceptualization remains useful both descriptively and normatively. First, the bundle conceptualization produces more precise specification of the legal relations of parties in both simple and complex property arrangements. Second, it clarifies the normative choices that underlie decisions about property. Third, it focuses attention on the quality of the relationships that property constructs. Finally, bundle-of-rights analysis generally forces information forward. Because the information produced by the granular analysis of property bundles is useful, the bundle of rights metaphor should not be displaced or abandoned. Indeed, the complexity of contemporary property issues — and in particular their growing connection to the alternative legal fields of privacy and intellectual property — makes the bundle conceptualization all the more fruitful.
Friday, April 5, 2013
What's the Most Oft-Stolen Food Item?
A new report from the Center for Retail Research claims that cheese is the world's most frequently stolen food, and as such, it has been labeled a "high risk food." [...] Almost four percent of the world's cheese supply ends up stolen, putting cheese ahead of other frequent grocery targets like candy and alcohol. Shoplifting rates as a whole are going up, because, hey, times are tough."
Rose on the Psychological State of Non-Owners in Property Law
Carol Rose (Arizona/Yale) has posted Psychologies of Property (and Why Property is Not a Hawk-Dove Game) (Book Chapter) on SSRN. Here's the abstract:
This paper discusses the psychological states associated with various
theories of property. Many theories view property from the psychological
perspective of the owner, describing how property enables an owner to
create or present a self to the world, to enjoy a zone of liberty, to
acquire the confidence to participate in politics or economic
activities, among other matters. This paper, however, takes particular
interest in the psychological states associated with the non-owner — the
person who confronts the property of others. Some theorists have
described property as a “hawk/dove” or “chicken” game, in which the
non-owner takes a dove role, implicitly from fear. This paper argues,
however, that the non-owner’s respect for property cannot be explained
adequately by fear. Respect for the property of others emerges as a
somewhat mysterious psychological state from the point of view of
rational actors, but it is nevertheless critical for supporting the
institution of property.
Stern on Social Capital & Residential PropertyStephanie Stern (Chicago-Kent) has posted The Dark Side of Town: The Social Capital Revolution in Residential Property on SSRN. Here's the abstract:
Social capital has pervaded property law, with scholars and policymakers
advocating laws and property arrangements to promote social capital and
relying on social capital to devolve property governance from legal
institutions to resident groups. This Article challenges the prevailing
view of social capital’s salutary effects with a more skeptical account
that examines the dark side of residential social capital — its capacity
to effectuate local factions and promote restraints and
inegalitarianism that close off property. I introduce a set of claims
about social capital’s dark side in residential property and explore
these points through the examples of local racial purging, land cartels,
and residential self-governance. First, contrary to the assumption of a
social capital deficit, residential racial segregation and land
cartelization, perhaps the deepest imprints on the American property
landscape today, suggest an abundance of local social capital and
possible unintended consequences of interventions to build social
capital. Second, “governing by social capital,” or relying on social
capital for property self-governance, may empower factions, breed
conflict, and increase the demand for residential homogeneity as a proxy
for cooperation. In light of the mixed evidence for social capital’s
benefits and its sizable dark side, the more pressing and productive
role for property law is not to promote social capital, but to address
its negative spillovers and illiberal effects.