PropertyProf Blog

Property Prof as Graduate Student

I'm guesting this month over at PrawfsBlawg.  As some readers know, for the past two years I've been doing graduate work in philosophy at the University of Maryland.  I just put up a post at Prawfs that talks about doing graduate work while being a law professor.

Ben Barros

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Bromley on Land Formalization

The Journal of Land Use Policy has an article in press by Daniel W. Bromley (Wisconsin, Applied Economics) called Formalising Property Relations in the Developing World: The Wrong Prescription for the Wrong Malady.  I can't find a link now, but will post one if it becomes available.  Here's the abstract:

Formalisation of property relations through the registration of land and the issuance of titles is but the latest in a long history of optimistic policy prescriptions imposed on the poor nations of theworld. As with the discreditedWashington Consensus, the imperative of formalisation flows from the flawed inductive logic that says” “rich countries have formalised tenure, therefore formalisation of tenure will help make you rich.”Unfortunately,empirical research on formalisation of tenure as a stimulus to agricultural investment is unable to establish any robust and reliable connection between “more secure” tenure and enhanced agricultural productivity. Urban slum dwellers who get titles but who are without work cannot possibly leverage credit from the banking sector. Formalisation erodes and displaces existing social networks and arrangements that do offer security. Formalisation offers little assurance that beneficial outcomes are inevitable. As with a long list of previous simple solutions to complex problems, this too shall pass.

This should be of interest to folks who are interested in Hernando de Soto's work (either pro or con).

Ben Barros

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Two from Smith

Henry E. Smith (Yale) has posted two new articles on SSRN.

Community and Custom in Property

Community custom has played a limited but important role in the law of property. In addition to a few major historic examples such as mining camp rules and whaling, property law sometimes relies on community custom, for example in adverse possession, nuisance law, and beach access. This paper provides an informational theory of custom in property law. Custom is subject to a communicative tradeoff in the law: all else equal, informationally demanding customs require an audience with a high degree of common knowledge. General customs already known throughout society do not require much extra publicity from the law, and the law can piggyback on such customs. By contrast, customs that vary by community raise the question of the need for processing by non-expert audiences, i.e. outgroup dutyholders and government officials. This tradeoff helps explain the differential receptiveness to various customs and the process by which they are formalized if they are adopted into the law. The information cost theory suggests that enthusiasts and skeptics of custom have both tended to ignore this process. The theory is then applied to some suggestive evidence from grazing customs and the pedis possessio doctrine in mining law, under which miners have pre-discovery rights to the spot being worked. Finally, the information cost theory of custom sheds some light on the history and controversies over the numerus clausus (standardization and limitation of the set of basic property forms) and on the question of baselines of property entitlements in the law of takings.

Governing Water: The Semicommons of Fluid Property Rights

This Article applies an information-cost theory of property to water law. Because of its fluidity, exclusion is difficult in the case of water and gives way to rule of proper use, i.e., governance regimes. Looking at water through this lens reveals that prior appropriation employs more governance and riparianism rests more on a foundation of exclusion than is commonly thought. The development of increasing amounts of exclusion and governance are both compatible with a broadly Demsetzian account that is sensitive to the nature of the resource. Moreover, hybrids between prior appropriation and riparianism are not anomalous. Exclusion strategies based on boundaries and quantification allow for rights to be formal and modular, but this approach is particularly challenging in the case of water and other fugitive resources. The challenges of exclusion that water and other fugitive resources present often lead to a semicommons in which elements of private and common property both coexist and interact.

Ben Barros

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Dagan on Just and Unjust Enrichments

Hanoch Dagan (Tel Aviv) has posted Just and Unjust Enrichments on SSRN.  Here's the abstract:

In exploring the most fundamental question in restitution theory of what separates just from unjust enrichments, this essay undertakes three interconnected missions. The first is to situate the types of cases that prompt liability in restitution within a wider universe of enrichments, including those that trigger taxation as well as those deemed benevolent. My second mission is to defend the view that the concept of property cannot serve as the baseline for distinguishing just from unjust enrichments, and we should instead resort to the normative guidance of the foundational liberal values of autonomy, utility, and community. My third task is to show that this orientation need not generate legal indeterminacy or strip the law of restitution from its constitutive characteristics as one part of our private law. Rather, I argue that my approach to restitution theory can yield a happy doctrine, composed of sharp rules and not vague standards, and responsive to the properly interpreted injunction of correlativity that underlies the legitimacy of private law.

Ben Barros

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Demsetz on Frischmann and Toward a Theory of Property Rights

The newest issue of the Review of Law and Economics includes an essay by Harold Demsetz (UCLA) titled Frischmann’s View of “Toward a Theory of Property Rights”.  Here's the abstract:

In this brief article, Professor Harold Demsetz defends his seminal paper "Toward a Theory of Property Rights" against the most recent critique to his theory made by Brett Frischmann in “Evaluating the Demsetzian Trend in Copyright Law” (Review of Law and Economics, 2007).

Ben Barros

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Penalver on Land Virtues

Eduardo M. Penalver (Cornell) has posted Land Virtues on SSRN. Here's the abstract:

This article has two goals. First, I explore some of the descriptive and normative shortcomings of traditional law and economics discussions of the ownership and use of land. These market-centered approaches struggle in different ways with features of land that distinguish it from other commodities. The complexity of land - its intrinsic complexity, but even more importantly the complex ways in which human beings interact with it - undermines the notion that owners will focus on a single value, such as wealth, in making decisions about their land. Adding to the equation land's memory, by which I mean the combined impact of the durability of land uses and the finite quantity of land, calls into question the normative assessment that owners whose behavior is guided by a unitary measure like market value are using their land wisely, or at least more wisely than other modes of decision-making might hope to accomplish. The shortcomings of traditional law and economics theories of land use point toward the benefits of a pluralist theory of property based on the Aristotelian tradition of virtue ethics. Setting forth the broad outlines of such a theory as it applies to the law of land use is the second goal of this article. Virtue theory, I will argue, is capable of incorporating the valuable insights that have made economic analysis so appealing to land use theorists without distorting our moral vision or treating economic consequences as the only considerations that ought to matter.

Ben Barros

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Property in Space

The Boston Globe has a great article on property in space.  It raises a number of interesting theoretical issues about property, and might make a great teaching tool.

Hat tip:  Ilya at the VC.

Ben Barros

Asteroid Photo From NASA via Wikicommons

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More Black Market Body Parts

From CNN.com:

The former head of UCLA's cadaver program and a businessman were indicted Friday on eight felony counts involving black market sales of human body parts.

Henry Reid, the former director of UCLA's willed body program, allegedly sold donated body parts to businessman Ernest Nelson, who then resold them to medical, pharmaceutical and hospital research companies.

"As a result, Ernest Nelson was able to supply over 20 of his clients with hundreds of body parts and received over $1 million for the supplied body parts," according to the indictment.

Ben Barros

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Sprankling on Owning the Center of the Earth

The UCLA Law Review has posted John G. Sprankling's Owning the Center of the Earth online.  Here's the abstract:

How far below the earth’s surface do property rights extend? The conventional wisdom is that a landowner holds title to everything between the surface and the center of the earth. This Article is the first legal scholarship to challenge the traditional view. It demonstrates that the “center of the earth” theory is poetic hyperbole, not binding law. Broadly speaking, the deeper the disputed region, the less likely courts are to recognize the surface owner’s title. The emergence of new technologies for use of the deep subsurface—such as heat mining and carbon sequestration, both of which may help mitigate global climate change—requires that we develop a new model of subsurface ownership. Accordingly, this Article proposes and evaluates four alternative approaches to subsurface property rights. The preferred model would recognize the surface owner’s title for only 1000 feet downward. If adopted, this approach would eliminate over 99 percent of the supposed real property ownership in the United States.

Very cool!

Ben Barros

Public domain image from NASA via Wikicommons

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Katz on Exclusion and Exclusivity

Larissa M. Katz (Queen's University) has posted Exclusion and Exclusivity in Property Law on SSRN.  Here's the abstract:

In this article, I propose a model for understanding the concept of ownership that I call the exclusivity model. Like many of the contemporary critics of the bundle of rights approach to Ownership, I insist that ownership is a legal concept with a well-defined structure. I differ from most of these contemporary critics, however, in the model of ownership that I believe to be at work in property law. Most of these critics propose a model of ownership that emphasizes the owner's right to exclude non-owners from the owned thing as the central defining feature of ownership. I call this the boundary approach to highlight its fixation on the owner's power to decide who may cross the boundaries of the owned thing. But this, I argue, makes it impossible for them to explain adequately the many subsidiary rights in things that co-exist with the rights of owners. Indeed, when we look more closely at the structure of ownership in property law, I argue that its central concern is not the exclusion of all non-owners from the owned thing, but rather the preservation of the owner's position as the exclusive agenda-setter for the owned thing. So long as others - whether they be subsidiary property right- holders or strangers to the property - act in a way that is consistent with the owner's agenda, they pose no threat to the owner's exclusive position as agenda-setter.

Ben Barros

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Villazor on Blood Quantum Laws

Rose Cuison Villazor (SMU) has posted Blood Quantum Land Laws and the Race Versus Political Dilemma on SSRN.  Here's the abstract:

Modern equal protection doctrine treats laws that make distinctions on the basis of indigeneity defined on blood quantum terms along a racial versus political paradigm. This dichotomy may be traced to Morton v. Mancari and, more recently, to Rice v. Cayetano. In Mancari, the Supreme Court held that laws that privilege members of American Indian tribes do not constitute racial discrimination because the preferences have a political purpose - to further the right of self-government of federally recognized American Indian tribes. Rice crystallized the juxtaposition of the racial from the political nature of indigeneity by invalidating a law that privileged Native Hawaiians. That law, according to the Court, used an ancestral blood requirement to construct a racial category and a racial purpose as opposed to the legally permissible political purpose of promoting the right of self-government of American Indian tribes.

Close analysis of the dichotomy between the constitutive notion of indigenous blood as either racial or political has largely escaped scholarship. An analysis deconstructing their juxtaposition is sorely needed. As recent challenges to blood quantum laws show, there remain unanswered questions about the extent to which the racialized (and thus invalid) Native Hawaiian-only voting law impact other blood quantum laws. Among the laws implicated by the dichotomy between the racial and political meaning of indigeneity are land ownership laws that privilege indigenous peoples who are not federally recognized tribes. Specifically, in some jurisdictions in the United States, including Hawaii, Alaska, and the U.S. territories, only indigenous peoples may purchase or possess property. Perhaps more problematically, these property laws define indigeneity on the basis of blood quantum. Under the contemporary race versus political meaning of blood quantum, these laws arguably violate equal protection principles because they do not fit the current framing of what constitutes political indigeneity.

Using these laws, what I collectively refer to as blood quantum land laws, as frames of reference, this Essay interrogates and criticizes the juxtaposition of the racial and political meaning of indigeneity. Specifically, the Essay examines the legal construction of political indigeneity and demonstrates how its narrowed construction would undermine these blood quantum land laws that were enacted to reverse the effects of colonialism. Consequently, this Essay calls for the liberalization of the binary racial and political paradigm by expanding equal protection law's interpretation of the meaning of political indigeneity. Toward this end, this Essay provides an initial analysis of how to broaden the political notion of indigeneity, focusing in particular on the relationships among property, indigeneity, and the right to self-determination.

Ben Barros

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Claeys on Law & Econ v. Natural Property Rights

Eric Claeys (George Mason) has posted Jefferson Meets Coase: Land-Use Torts, Law and Economics, and Natural Property Rights on SSRN.  Here's the abstract:

In tort scholarship, conventional wisdom assumes that economic analysis explains doctrine more determinately than philosophical analysis. This Article challenges that assumption, using land-use torts as a point of contact.

The Article studies cattle trespasses, pollution nuisances, train-sparks cases, and other basic rules of tort liability Ronald Coase popularized in The Problem of Social Cost. The Article compares standard economic analyses of these torts against an interpretation that follows from the natural-rights theory that informed the content of these torts when "tort" was forming into a single field of legal study. The "Jeffersonian" natural-rights theory predicts the contours of doctrine more determinately and accurately than "Coasian" economic analysis. It also anticipates and finesses a significant normative challenge to Coasian economic tort analysis - its tendency to demand that triers of fact process unrealistically volatile and fact-specific information to prescribe legal results.

The comparison teaches that conventional impressions about tort philosophy and economics have been misguided in at least three important respects. First, in a significant swath of doctrine, Jeffersonian natural-rights moral theory shapes the contours of tort quite determinately. Second, if philosophical tort scholarship has a bad reputation for being indeterminate, it does so at least in part because it has chosen to focus on the general corrective-justice architecture of tort - to the exclusion of specific theories of political morality informing particular doctrines. Finally, standard economic tort analysis cannot prescribe determinate results without making simplifying assumptions more characteristic of moral philosophy than of social science.

Ben Barros

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Jones and Brosnan on Law, Biology, and Property

Owen D. Jones (Vanderbilt) and Sarah F. Brosnan (Georgia State) have posted Law, Biology, and Property: A New Theory of the Endowment Effect on SSRN.  Here's the abstract:

Recent work at the intersection of law and behavioral biology has suggested numerous contexts in which legal thinking could benefit by integrating knowledge from behavioral biology. In one of those contexts, behavioral biology may help to provide theoretical foundation for, and potentially increased predictive power concerning, various psychological traits relevant to law. This Article describes an experiment that explores that context.

The paradoxical psychological bias known as the endowment effect puzzles economists, skews market behavior, impedes efficient exchange of goods and rights, and thereby poses important problems for law. Although the effect is known to vary widely, there are at present no satisfying explanations for why it manifests when and how it does. Drawing on evolutionary biology, this Article provides a new theory of the endowment effect. Briefly, we hypothesize that the endowment effect is an evolved propensity of humans and, further, that the degree to which an item is evolutionarily relevant will affect the strength of the endowment effect. The theory generates a novel combination of three predictions. These are: (1) the effect is likely to be observable in many other species, including close primate relatives; (2) the prevalence of the effect in other species is likely to vary across items; and (3) the prevalence of the endowment effect will increase or decrease, respectively, with the increasing or decreasing evolutionary salience of the item in question.

The authors tested these predictions in a chimpanzee (Pan troglodytes) experiment, recently published in Current Biology. The data, further explored here, are consistent with each of the three predictions. Consequently, this theory may explain why the endowment effect exists in humans and other species. It may also help both to predict and to explain some of the variability in the effect when it does manifest. And, more broadly, the results of the experiment suggest that combining life science and social science perspectives could lead to a more coherent framework for understanding the wider variety of other cognitive heuristics and biases relevant to law.

Ben Barros

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Tax Consequences of Postmortem Right of Publicity

Mitchell M. Gans, Bridget J. Crawford & Jonathan G. Blattmachr have an interesting piece in the Yale Law Journal's Pocket Part called Postmortem Rights of Publicity: The Federal Estate Tax Consequences of New State-Law Property Rights.  Here's the intro:

California recently passed legislation that creates retroactive, descendible rights of publicity. The New York State Assembly is poised to enact similar legislation. Legal recognition of postmortem rights of publicity permits a decedent’s named beneficiaries or heirs to control (and financially benefit from) use of a deceased personality’s image and likeness. Legislators, proponents of these laws, and legal commentators have overlooked two significant federal estate tax consequences of these new state law property rights. First, a descendible right of publicity likely will be included in a decedent’s gross estate for federal estate tax purposes. Second, the estate tax value of rights of publicity easily could exceed the estate’s liquid assets available to pay taxes. These tax concerns could be eliminated, however, by rewriting the statutes to limit a decedent’s ability to control the disposition of any postmortem rights of publicity.

Ben Barros

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Asoni on Property Rights and Economic Growth

Andrea Asoni (U. Chicago Dep't of Econ.) has posted Protection of Property Rights and Growth as Political Equilibria on SSRN.  Here's the abstract:

This paper presents a survey of the literature on property rights and economic growth. It discusses different theoretical mechanisms that relate property rights to economic development. Lack of protection of property rights can result in slow economic growth through different channels: expropriation of private wealth, corruption of civil servants, excessive taxation and barriers to adoption of new technologies. The origins of property rights are also considered. Different theories are illustrated but more attention is paid to the "social conflict view" and its strengths and limitations. The second part of the paper illustrates relevant empirical works on property rights and growth.

Ben Barros

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Fennell on Slices and Lumps

Lee Fennell (Chicago) has posted Slices and Lumps on SSRN.  Here's the abstract:

This brief essay, delivered in slightly different form as the 2008 Coase Lecture at the University of Chicago Law School, addresses problems involving the aggregation and division of entitlements. Fragments held by multiple parties - such as parcels of land, effort, or segments of a bridge - often must be assembled together to be worth much. Conversely, a presently unified entitlement may be more valuable if it can be split into separate pieces held by different parties. The essay examines these lumping and slicing problems (which turn out to be two sides of the same coin), shows how they turn up in both interpersonal and intrapersonal contexts, and discusses some tools for responding to them.

Ben Barros

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Alexander on The Social-Obligation Norm in American Property Law

Greg Alexander (Cornell) has posted The Social-Obligation Norm in American Property Law on SSRN.  Here's the abstract:

This article seeks to provide in property legal theory an alternative to law-and-economics theory, the dominant mode of theorizing about property in contemporary legal scholarship. I call this alternative the social obligation theory.

I argue that American property law, both on the private and public sides, includes a social-obligation norm but that this norm has never been explicitly recognized as such nor systemically developed. I argue that a proper understanding of the social obligation explains a remarkably wide array of existing legal doctrine in American property law, ranging from the power of eminent domain to the modern public trust doctrine. In some cases social obligation reaches the same result as law-and-economics, but in other cases it will not. Even where it reaches the same result as law and economics, social obligation theory provides a superior explanation.

At a normative level I argue that the version of the social-obligation norm that I develop here is morally superior to other candidates for the social-obligation norm. It is so because it best promotes human flourishing, i.e., enabling individuals to live lives worthy of human dignity.

Drawing on Martha Nussbaum's capabilities approach (which itself is based on the Aristotelian notion that the human being is a social and political animal, not self-sufficient alone), the social obligation theory holds that all individuals have an obligation to others in their respective communities to promote the capabilities that are essential to human flourishing (e.g., freedom, practical reasoning). For property owners this has important consequences. If we accept the existence of an obligation to foster the capabilities necessary for human flourishing, and if we understand that obligation as extending to an obligation to share property, at least in surplus resources, in order to enhance the abilities of others to flourish, then it follows that, in the predictable absence of adequate voluntary transfers, the state should be empowered and may even be obligated to step in to compel the wealthy to share their surplus with the poor so that the latter can develop the necessary capabilities. None of this is meant to suggest that the state's power, even as it touches on the facilitation of the capabilities we are discussing, is unbounded. But the limits to the state's proper domain are supplied by the same principles that justify its action: the demands generated by the capabilities that facilitate human flourishing - freedom, practical rationality, and sociality, among others.

Ben Barros

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Eagle on Common Law and the Environment

Steven J. Eagle (George Mason) has posted The Role of the Common Law in Defining and Protecting the Environment: A Prolegomenon on SSRN.  Here's the abstract:

This article surveys contemporary issues in defining and protecting the environment. It stresses the continuing relevance of common law methodology and doctrine. It reviews the development and imprecision of the term "environment," together with the influence of various philosophical and utilitarian views of environmentalism. These are juxtaposed against corresponding approaches to human flourishing. Finally, the article analyzes how contemporary notions devaluing meaning of property and property rights have contributed towards a lack of interest in developing common law principles - principally those of nuisance - in dealing with environmental issues.

Ben Barros

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Lewinsohn-Zamir on More v. Less Property

Daphna Lewinsohn-Zamir (Hebrew University) has posted More Is Not Always Better than Less: An Exploration in Property Law on SSRN.  Here's the abstract:

The common intuition that more is better than less often lies at the heart of arguments regarding legal rules. It supports the belief that the right to take an extreme measure with respect to property encompasses the right to take a more moderate one. For example, scholars have claimed that since owners are free not to transfer their assets, but rather destroy or sell them before death, then they should be entitled to bequeath those assets subject to conditions. As more property is better than less, and some property better than none at all, it is better to inherit property subject to restrictions or conditions than to inherit nothing. It follows that the law should permit moderate measures, lest owners are induced to opt for extreme measures, resulting in less property to other individuals.

This Article advances the counterintuitive view that more is not always better than less. First, it shows that numerous legal rules reject the more is better than less argument, and restrict moderate measures relating to property more than extreme measures. In many cases, owners have more freedom to use property than to avoid using it, more power to destroy property than to modify or neglect it, and more liberty not to transfer property than to transfer it conditionally. Second, the Article argues that this seemingly puzzling state of affairs rests on sound normative grounds and on widely tested behavioral observations. Three justifications are advanced for greater scrutiny and intervention in the case of moderate, rather than extreme, measures regarding property rights: protecting potential property transferees, reducing the incidence of low-valuing owners, and correcting distributive errors. These rationales can serve to evaluate and critique existing rules in property law as well as in other legal spheres, such as labor law, zoning law, and contract law.

I saw Daphna present this paper at a conference last year.  Very interesting!

Ben Barros

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Weiser and Hatfield on Property in Spectrum

Phil Weiser and Dale N. Hatfield (Univ. of Colorado) have posted Spectrum Policy Reform and the Next Frontier of Property Rights on SSRN.  Here's the abstract:

The scarcity of wireless spectrum reflects a costly failure of regulation. In practice, large swaths of spectrum are vastly underused or used for low value activities, but the regulatory system prevents innovative users from gaining access to such spectrum through marketplace transactions. In calling for the propertyzing of swaths of spectrum as a replacement for the current command-and-control system, many scholars have wrongfully assumed the simplicity of how such a regime would work in practice. In short, many scholars suggest that spectrum property rights can easily borrow key principles from trespass law, reasoning that since property rights work well for land, they can work well for spectrum rights as well. But as we explain, spectrum is not the same as land, and a poorly designed property rights regime for spectrum might even be worse than the legacy model of spectrum regulation.

This Article addresses three central questions that confront the design and implementation of property rights in spectrum. First, it suggests how policymakers must develop a set of rights and remedies around spectrum property rights that reflect the fact that radio signals defy boundaries and can propagate in unpredictable ways. In particular, if policymakers simply created rights in spectrum and enforced them like rights in land (i.e., with injunctions for trespass), they would invite strategic behavior: spectrum speculators would buy licenses for the sole purpose of suing other licensees when their transmission systems created interference outside the permissible boundary (i.e., act as spectrum trolls). Second, it rejects the suggestion that policymakers establish a unitary property right for spectrum, arguing that policymakers should zone the spectrum by establishing different levels of protection against interference (i.e., an ability to transmit signals with more latitude) in different frequency bands. Finally, this Article discusses what institutional strategy will best facilitate the development of the property right and its enforcement, concluding that an administrative agency - be it a new one or a reformed FCC - is better positioned than a court to develop and enforce the rules governing the use of spectrum so as to facilitate technological progress and prevent parties with antiquated equipment from objecting to more efficient uses of spectrum.

Ben Barros

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Barros on Property and Freedom

I've posted Property and Freedom on SSRN.  Here's the abstract:

Private property is often defended on the basis that it promotes individual freedom. Discussion of this subject has typically taken place in the context of contentious debates over the legitimacy of government interference with private property, especially government regulation of land use and redistributive taxation. Pro-property, anti-interference advocates tend to suggest that there is a strong relationship between property and freedom. Those on the other side of the debate tend to be more skeptical. The political philosopher G.A. Cohen, for example, has asserted that "the familiar idea that private property and freedom are conceptually connected is an ideological illusion."

In this Essay, I argue against both sides of this intractable debate. Property and freedom are inextricably linked, but a strong relationship between property and freedom does not immunize property from government interference. To support these positions, I shift the discussion of property and freedom away from debates about the inviolability of property, and focus instead on the institutional relationship between property and freedom. Accordingly, I focus on two questions that have often been neglected in the heat of the debate over government interference with property: to what degree does the institution of private property protect individual freedom, and to what degree is individual freedom possible without the institution of private property?

Property as an institution promotes individual freedom in three ways: by creating a zone of individual autonomy and privacy; by distributing power; and by providing access to the resources that people need to be free. The discussion of these institutional connections between property and freedom draws out three important substantive points. First, individual freedom depends, in an institutional sense, on private property. Second, because the relationship between property and freedom is complex, different types of property (e.g., land versus money) and different aspects of property ownership (e.g., the ability to exclude others versus the ability to transfer to another owner) promote freedom in different ways. Third, and most importantly, the relationship between property and freedom in this context may be used to support, rather than oppose, arguments for the redistribution of property. Indeed, a strong connection between property and freedom can be maintained without any reference whatsoever to libertarian or other theories that hold that property rights should be immune from state interference.

Using these relationships between property and freedom, I then critique two of John Rawls's positions on property. Rawls asserted that the basic liberties protected by his First Principle of Justice include the right to hold personal property, but not productive property; and that either a property-owning democracy or a liberal socialist regime could comport with his two principles of justice. In my critique of Rawls, I first explain why the concept of freedom embodied by the First Principle of Justice provides a better defense of private property than the inequality allowed by the so-called difference principle in the Second Principle of Justice. I then use the connections between property and freedom discussed earlier in the Essay, and Rawls's own positions on freedom, to argue that Rawls's positions on property are wrong, that the First Principle must include the right to hold productive property, and that therefore only a property-owning democracy would satisfy the requirements of the two principles of justice.

I'll be blogging about some of the subjects in the essay, especially the parts about Rawlsian property, over the next couple of weeks.  Comments are very welcome.

Ben Barros

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Singer on Normative Methods for Lawyers

Joseph William Singer (Harvard) has posted Normative Methods for Lawyers on SSRN.  Here's the abstract:

How can we defend arguments about what the law should be based on considerations of morality, justice, fairness, liberty, rights, or human values? Are such arguments anything more than assertions of personal preferences? In this article, I argue that normative arguments are crucial for the rule of law and that both lawyers (and law students) need to know how to make and defend claims of morality and justice. In recent years, cost/benefit and efficiency analysis appear to have taken over most legal scholarship and many law school classroom discussions. Such analysis suggests that the sole goal of the legal system should be to maximize human welfare and that we can best accomplish this goal by deferring to individual preferences, whatever they happen to be, valuing the relative strength of those preferences by reference to market values, and then choosing results whose social benefits outweigh their social costs. In contrast, I argue that such analysis is wholly without any normative weight unless it occurs within a framework of institutions, laws, and practices that are consistent with minimum standards for social and economic relationships in a free and democratic society. Normative arguments are designed to define that legitimate framework. Moreover, such arguments are not merely expressions of personal preference but are evaluative assertions and moral demands we are entitled to make of each other. Moral and political theory provide resources to help lawyers make evaluative assertions about human values that the legal system should respect. At the same time, lawyers possess substantial expertise in analyzing, shaping, and defending normative claims and the methods used by lawyers should be of interest to moral and political theorists.

Because there are better and worse ways of making normative arguments and because both lawyers and law students need to know how to make such arguments, this article explains four basic tasks of normative argument and outlines a number of different ways lawyers accomplish those tasks. It then applies these various normative methods to a basic property law case. Bringing to consciousness these methods will help lawyers improve them and develop the skills needed to use them. Articulating and exploring the contours of the methods used by lawyers to make and defend normative arguments will help all participants in the legal system to articulate normative reasons that can justify legal rights and institutions in a manner appropriate to a free and democratic society.

Ben Barros

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Singer on Property Norms and Externalities of Ownership

Joseph William Singer (Harvard Law School) has posted How Property Norms Construct the Externalities of Ownership on SSRN.  Here's the abstract:

The relation between property and sovereignty is a contested one. Traditional norms identify the protection of both persons and property as two of the core functions of government. However, these twin goals come into conflict when the existence or exercise of a property right results in harm to others. Yet it can be argued that recognition of any property right necessarily harms others by excluding them from resources they may need for human life. How then do we determine when an exercise of ownership is legitimately viewed as a "self-regarding act" that does not affect the legitimate interests of others (and thus does not involve any negative externalities) and when such an exercise does harm others and thus comes within the legitimate sphere of government regulation? Property norms help answer this question by orienting us in a moral universe through background understandings that define legitimate interests that deserve legal protection. Norms orient us, first, by telling us who is an "owner" and who is a "non-owner" with regard to any particular entitlement in a particular resource, and second, by telling owners when they are obligated to take into account the effects of their actions on others and when they are entitled to think of their own interests alone. In so doing, property norms define which externalities we as a society must pay attention to, worry about, and seek (if possible) to prevent.

Ben Barros

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Ball on Privacy, Property, and Public Sex

Speaking of Carlos Ball, he has posted Privacy, Property, and Public Sex on SSRN.  Here's the abstract:

This Article argues that the constitutional right to sexual liberty should include the right to engage in public sex under certain circumstances. In doing so, the Article contends that the right to sexual liberty should not, as the Supreme Court has held, be site-dependent, that is, its scope should not be limited to sexual conduct that takes place in the home and other private places. The Article reviews the sociological literature on public sex to explain how sexual actors frequently and effectively privatize public sex sites. By analogizing to the privacy protection afforded by the Fourth Amendment, the Article argues that what should ultimately matter in determining the scope of the right to sexual liberty under the Due Process Clause is not where the sex takes place but whether the sexual actors' expectations of privacy are reasonable. In the end, the Article seeks to problematize the seemingly intuitive notion that, in matters of sex and sexuality, the concept of privacy is inextricably linked to geographic sites that are private.

I attended a workshop where Carlos presented an earlier version of this paper.  His discussion of the sometimes private nature of public spaces is particularly interesting.

Ben Barros

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Lehavi on Property and Community

Amnon Lehavi (Interdisciplinary Center Herzliyah - Radzyner School of Law) has posted How Property Can Create, Maintain, or Destroy Community on SSRN.  Here's the abstract:

Property law plays a crucial role in the ability of groups, especially ones composed of geographically-adjacent members, to establish and maintain significant forms of "community" around a social, economic, or ideological shared interest. Property may also have, however, the opposite effect of undermining or even destroying communities, particularly those relying on fragile modes of cooperation.

This paper identifies three major types of territorial communities: (1) Intentional Communities - closely-knit groups that initially organize around a consolidating non-instrumental idea (such as cooperative Kibbutzim or religious communes) and employ sweeping internal norms to validate their commonality. (2) Planned Communities - comprised mostly of residential developments of homeowners associations, which rely on a formal set of conditions, covenants, and restrictions incorporated in the association's governing documents. (3) Spontaneous Communities - clusters of initially unorganized neighbors who succeed in cooperating and coordinating over time. The evolvement of such organizations may be essential to the creation of an interpersonal "social capital" and to a physical and functional improvement of the community's surrounding.

For each one of these types of communities, property law plays a very different role. Thus, while Intentional Communities do not hinge strictly upon the existence of a supportive property system to sprout, Planned Communities cannot be conceived without the security of an overt formal state-backed regime, whereas Spontaneous Communities may often need property law's affirmative backing (providing what I term "Property Tail-wind") to thrive and enjoy the social and economic benefits of sustainable collective action

Ben Barros

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Body Parts Futures?

From an op-ed by Ian Williams in the Guardian:

In the US, the alleged bastion of property rights, religious obscurantism is robbing American citizens of their birthright. Everyone, no matter how poor, is wandering around with some quarter of a million dollars worth of transplant material: but because of the 1984 National Organ Transplantation Act, they cannot cash in their chips.

The surgeons and hospitals of America can charge an arm and a leg for hoisting out hearts and replanting them, and it seems some morticians can eke out their bottom line on the side, but the donors have no financial incentive whatsoever. Talk about a "death tax!" This no mere Republican rhetorical trope - it's the real thing. The federal government, almost unchallenged, has deprived us of the usufruct of our most personal property.

Adam Smith's invisible hand is just waiting to be transplanted into this field. Of course you may object that it is difficult for a cadaver to take profits from such a sale, but think futures. If bankers can sell stinkers like collateralised debt obligations, they should easily be able to devise an actuarially advised organ options market which would make a return for the living, and help a return to life for those in need of the spare parts.

The principle is the same as the viaticals market in which for example, HIV sufferers were able to cash in their life insurance early so they could enjoy the proceeds while still alive.

The people who would rush to sell organ futures would very likely also be those who are least likely to have a private pension scheme and who would benefit most from topping up their social security funds.

If the government really must get involved, it could help solve the alleged social security crisis by insisting that at least some, if not all, of the proceeds, would be invested in some sort of individual retirement account, but a cash handout would also help boost the recession-verging economy by putting money into the hands of people who would rush out and spend it.

Ben Barros

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Purpresture: What's that?

I'm working away on "Property and Progress: Antebellum Landscape Art and Property Law" (we've talked about a piece of this before and I'll be blogging more about it in the next few weeks).  I'm interested in the law of beacons in the nineteenth century--they're put up sometimes by the community and at other times by corporations.  And so I'm interested in the law surrounding this public service. 

That's led me to some a word that's new to me (though very old): purpresture.  You ever heard of it before?  I didn't think so.

Here's it in context, in State v. City of Mobile, 5 Port. 279 (Ala. 1837), a case charging that the corporation of Mobile had improperly narrowed a public street:

The obstruction complained of, besides being a nuisance, is also a purpresture. A purpresture signifies “an inclosure;” and is defined to be, where one “by building, inclosing, or unlawfully using any liberty, encroaches upon a highway, public river, &c. of the King, or of another.” ... Judge Story considers a purpresture to be an encroachment upon public property, held by the sovereign for the use of the public, such as highways, rivers, forts, streets and squares.” “Where one takes that to himself, which ought to be common to many.”- [2 Story's Commentaries on Equity, 201, 202.]

We'll be talking some more about this in the near future.

Endnote: The illustration is John Kensett's Beacon Rock, Newport Harbor, from the National Gallery of Art because beacons are what got me started on this little line of inquiry.

Al Brophy
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Nash on Economic Efficiency, Public Choice, and Property Rights

Jonathan Nash (Tulane) has posted Economic Efficiency Versus Public Choice: The Case of Property Rights in Road Traffic Management on SSRN.  Here's the abstract:

This Article argues, using the case of responses to traffic congestion, that public choice provides a greater explanation for the emergence of property rights than does economic efficiency. While the traditional solution to traffic congestion is to provide new roadway capacity, that is not an efficient response in that it does not lead to internalization of costs. Moreover, over time new capacity may serve to exacerbate congestion problems: New roadway capacity may induce additional travel that would not have taken place but for the new construction. By contrast, congestion charges - that is, imposing tolls designed to force drivers to internalize the costs that their driving imposes on other drivers offer an efficient way to address the problem of congestion. The continued popularity, despite this, of providing new roadway capacity turns upon public choice theory. New roadway construction tends to be very attractive for politicians as a way to satisfy both constituents generally, as well as interest groups that tend to be well-organized and powerful. In contrast, congestion charging regimes tend to be less popular across the board politically. At present, there appears currently to be something of a shift in position. Experimentation with congestion pricing programs is growing overseas including a notable program in London - and a serious proposal for New York City's central business district. This Article thus argues that, while political economy tends to be a powerful force, it is possible for concerns of efficiency to override (or at least to curtail) that force when the inefficiencies of a response grounded in political economy become too large. At the same time, public choice continues to hold considerable sway: The shift toward congestion pricing may require not only pressing efficiency concerns, but also a shift in the political climate, as evidenced by backlash against New York City's proposal.

Ben Barros

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Two by Freyfogle

Eric Freyfogle (Illinois) has two new posts up on SSRN.  They are:

Private Property: Correcting the Half Truths

Today's discussions about private land ownership and regulatory takings build upon a number of critical assumptions about how private property arises, how it relates to liberty, in what sense it is an individual right, what full ownership entails, and how property rights might legitimately change over time. This essay-excerpted from chapter 1 of a new book, On Private Property: Finding Common Ground on the Ownership of Land-steps back from contemporary debates to probe these fundamental assumptions. The assumptions, it claims, tend to be seriously flawed; they are no more than half-right, and need important revision to provide a solid foundation for evaluating where we stand and charting a course ahead. At root, private property is a social institution, created by law and lawmakers and appropriately revised, generation by generation. Private property does not exist primarily to protect individual liberty; indeed, it curtails liberty as much as it protects it. It makes little sense, also, to claim: that property begins when a person takes first possession of a thing; that private property can somehow be crafted as absolute; and that ownership necessarily entails expansive rights to develop. The situation is more complex, and property rights more pliable, tentative, and morally complex. Scholarly writing on private property would likely improve if commentators turned away from Supreme Court rulings on takings and focused instead on the fundamental elements of private property as an essential tool that society uses and continually reshapes to foster shared goals.

Property's Functions and the Right to Develop

At stake in most contemporary land-use disputes, particularly those involving regulatory takings, is the legal right of land owners to develop or otherwise alter their lands in significant ways. Landowners claim that they possess or should possess this power, while lawmakers conclude that a curtailment of rights would serve the public interest. For various reasons we've had troubles seeing this conflict clearly. What development rights should landowners possess, and what powers should government have to curtail or redefine them? To address these questions we need to see that private property is basically a tool that society uses to promote the common welfare; it is a social institution in which private owners call upon government (including police, courts, and even prisons) to curtail the activities of nonowners. To decide what development options owners ought to possess, given this moral complexity, we need to consider how a sound system of private property can in practice promote the common good.

This essay, drawn from a new book on private property, probes the three basic functions of private land ownership with particular regard for development rights. It also probes how increases in the development value of land are due not to labor expended by owners but to the activities of surrounding landowners as a community. This background sets the stage for answering the central question of development rights. A key conclusion is that, while landowners need and deserve substantial protection from interference with on-going activities, there is much less need to protect their hopes of initiating new land uses in the future. What landowners need most is not some protection against future laws limiting development but instead an assurance that such laws will apply widely to all similarly situated landowners.

Ben Barros

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Responses to Penalver & Katyal's Property Outlaws

The Pennsylvania Law Review's PENNumbra has posted three responses to Eduardo Penalver & Sonia Katyal's Property Outlaws.  The responses are Order with Outlaws by Lee Anne Fennell, Property In-Laws, by Nicole Stelle Garnett, and Lessons from Outlaws, by Laura S. Underkuffler.

Fascinating stuff.

Ben Barros

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Moringiello on Estates in Virtual Property

Juliet Moringeillo (Widener University School of Law) has posted Towards a System of Estates in Virtual Property on SSRN.

Virtual worlds such as Second Life have received a lot of press in the United States recently. As individuals and businesses participate in these virtual worlds, questions arise regarding the application of existing laws to their virtual world transactions. Many questions have arisen regarding the property rights of participants in virtual worlds, and a Second Life member recently sued Linden Research, the company that developed Second Life, alleging that Second Life converted his virtual property. The questions regarding the legal nature of virtual world assets tend to mirror the questions regarding intangible rights generally, as courts have tended to struggle over whether these rights are property rights or contract rights. In this paper, I propose that the principle of numerus clausus be applied to virtual property, so that courts faced with disputes over such assets will have mandatory property forms to which to resort. Such an approach would limit the ability of vendors of such rights to customize them through their contracts, which are commonly embodied in electronically-presented standard forms.

Ben Barros

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Property Rights in China

Over at Balkinization, Lauren Hilgers has a fascinating post on recent development in formal and informal property rights in China.

Ben Barros

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Nash on Property in Road Traffic Management

Jonathan Nash (Tulane) has posted Economic Efficiency Versus Public Choice: The Case of Property Rights in Road Traffic Management on SSRN.  Here's the abstract:

This Article argues, using the case of responses to traffic congestion, that public choice provides a greater explanation for the emergence of property rights than does economic efficiency. While the traditional solution to traffic congestion is to provide new roadway capacity, that is not an efficient response in that it does not lead to internalization of costs. Moreover, over time new capacity may serve to exacerbate congestion problems: New roadway capacity may induce additional travel that would not have taken place but for the new construction. By contrast, congestion charges, that is, imposing tolls designed to force drivers to internalize the costs that their driving imposes on other drivers offer an efficient way to address the problem of congestion. The continued popularity, despite this, of providing new roadway capacity turns upon public choice theory. New roadway construction tends to be very attractive for politicians as a way to satisfy both constituents generally, as well as interest groups that tend to be well-organized and powerful. In contrast, congestion charging regimes tend to be less popular across the board politically. At present, there appears currently to be something of a shift in position. Experimentation with congestion pricing programs is growing overseas including a notable program in London¿and a serious proposal for New York City's central business district. This Article thus argues that, while political economy tends to be a powerful force, it is possible for concerns of efficiency to override (or at least to curtail) that force when the inefficiencies of a response grounded in political economy become too large. At the same time, public choice continues to hold considerable sway: The shift toward congestion pricing may require not only pressing efficiency concerns, but also a shift in the political climate, as evidenced by backlash against New York City's proposal.

Ben Barros

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Glazer on Outlaws and the Right to Exclude

Elizabeth Glazer (Hofstra) has posted Rule of (Out)Law: Property's Contingent Right to Exclude on SSRN.  Here's the abstract:

Anything for love;
I would do anything for love;
I would do anything for love;
But I wont do that;
I wont do that.

When Meat Loaf mystified scores of listeners in the early nineties by his logically inconsistent song lyrics, he almost certainly did not look to property law when answering his fans most popular question. This Essay does not argue that he should have. However, Meat Loaf's (in)famous song lyrics may be able to shed light on what has become a popular question among property fans, namely what is the nature of the right to exclude.
This Essay argues that an owner's invocation of the right to exclude depends upon the owner's invocation of other rights in the property bundle. In so arguing, the Essay analyzes current efforts to understand the right to exclude through the lens of the property outlaw, whom Eduardo Moisés Peñalver & Sonia K. Katyal profile in their recent article, Property Outlaws. The Essay highlights the effects of Professors Peñalver's and Katyal's argument on the nature of property's right to exclude. After summarizing recent efforts to understand the right to exclude, describing Peñalver's and Katyal's argument that outlaw behavior has a special and socially productive function in property law, and explaining the connection between their article and the right to exclude, the Essay concludes by proffering evidence that Meat Loaf may have audited a first year property course, or at least that he incorporated insights about property law into his music.

Gotta respect the Loaf.  Photo from Wikipedia.

Ben Barros

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Rose on Carbon Trading

Carol Rose (Arizona) has posted From H20 to C02: Lessons of Water Rights for Carbon Trading on SSRN.  Here's the abstract:

Interest in climate change has generated many proposals for cap-and-trade programs to control greenhouse gases. Longstanding American water rights regimes may have some lessons for these new proposals. Nineteenth century eastern water law focused on the cap - keeping water instream - and particularly illustrates the importance of mobilized constituencies in any program that entails capping resource use. Western water law focused on individualized and supposedly tradable rights, and its experience shows especially the significance of rights-definition both for the content and for the tradability of rights. As with water rights, both content and tradability in the new rights regimes are likely to match only imperfectly the goals that we want a cap-and-trade program to serve. For that reason, the historical experience of both water regimes also suggests the important role that surrounding and supporting institutions will play to facilitate trade under imperfect circumstances, and to reassure participants of the standards, accountability, and acceptability of the cap-and-trade regime.

Ben Barros

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