PropertyProf Blog

Rose on The Moral Subject of Property

Carol M. Rose (University of Arizona) has posted The Moral Subject of Property on SSRN.  Here's the abstract:

What kind of person is presupposed by property law? This paper, written for a symposium on the morality of law, investigates the morality that is expected of participants in property regimes, and it argues that property presupposes a “second-best” morality. The presumptive property subject is a self-interested being, but also one who has a modicum of cooperativeness. But is such a second-best morality good enough to command respect? Critics complain that it is not, and that property concedes too much to human self-interest. This paper explores three areas where this critique arises: the claims that initial acquisitions are based on wrongful behavior, thus tainting subsequent ownership; that property results in unequal distributions of wealth; and that commercial property's alienability corrupts the human understanding of love, generosity and good civic behavior. The usual property-based answer to these critiques is that property nevertheless makes us all better off. Thus claims and responses do not meet, with one side speaking of personal morality and the other referring to the public welfare. Nevertheless there are several ways in which property's more forgiving second-best standard may also call into question the personal moral character of a more demanding first-best standard.

Rose's work is always interesting, and I'm printing a copy of this article now.  Hopefully, I'll have some time to post some substantive comments in the next week.

Ben Barros

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More pro-sprawl myths rebutted

I.  Does sprawl reduce commute times?

I've seen the argument made that sprawl doesn't increase commuting times because jobs follow people to suburbs, and so suburbanites have shorter commute times than they would if their jobs were in the city.

But this article in today's Washington Post suggests otherwise.  In metro DC, residents of DC and Arlington had the shortest commutes (29 and 26 minutes respectively).  By contrast, residents of exurban Prince William County had the longest (41 minutes).   Other suburbs had in-between commuting times.

What's going on?

First, Prince William is not one of the more job-rich suburbs.  To the extent "job sprawl" benefits commuters, it benefits only the ones who live in the job-rich suburbs (in DC, Loudoun and Fairfax Counties more than Prince William).  If you live in a less job-rich suburb, your commute might be longer than if you worked downtown.

Second, even if moving to a job-rich suburb to follow your job reduces your commute, other people in your household may still have a downtown job- which means the increase in that person's commute cancels out the decrease in yours. 

For example, suppose my wife and I live downtown; my job is 8 miles out in suburbia and hers is a few yards away, so we have a total commute of 8 miles.

A year later, we move to suburbia, 2 miles from my job and 10 miles from my wife's downtown job.  I am better off, but our total commute is 12 miles- far worse than when we lived downtown.

II.  Is sprawl somehow necessity for higher birthrates?

Joel Kotkin wrote in a recent article for Newsweek,   "Once everyone is forced into a small city place, there's literally no room left for kids."

There might be densities where there is "no room left for kids." But not in America.  A recent New York Times article  notes that Kiryas Joel, NY (a Hasidic enclave) has 18,000 people in 3000 families on 1.1 square miles.  When you do the math, you find that this community has around 16,000 people per square mile (more than any American city but NYC) and 6 people per family, a lot more than most American households.   

(This commentary is more or less cross-posted from my blog (although in slightly different form).

PS My review of Bruegmann's book (now under submission to law reviews) will soon be available at Bepress.

Michael Lewyn

Richard Epstein on Property at Alabama: Podcast

I had the pleasure of listening to Richard Epstein's Meador lecture on "How to Create and Destroy Wealth in Property" this morning at the University of Alabama School of Law.  It's available for listening via the internet here.  The first few minutes are my colleague George Geis' introduction.  Lots in the talk--about servitudes and takings, among many other topics.

Dedicated propertyprofs may recall our discussion of Epstein's recent volume, How Progressives Rewrote the Constitution and of James W. Ely's essay on "The Impact of Richard A. Epstein."

Al Brophy

Teaching Race, Class, and Environmental Justice in Property

I am still envious of all of you Property Profs out there teaching Property to first semester first years -- so am back to thinking about teaching.  Because my writing focuses on the intersection of race and property/land use, and much of my work as a lawyer was representing poor communities of color against noxious land uses, I have focused a lot of energy figuring out how best to teach these issues in Property. 

For those using Dukeminier & Krier, race arises immediately with Johnson v. M'Intosh.  Following the suggestion of Alice Kaswan (a truly extraordinary Property Prof), along with the discussion of the US's treatment of Native peoples, I also use this case to begin the discussion of how courts have historically treated a variety of groups differently.  State v. Shack also provides a terrific opportunity to discuss how to balance property rights with other critical human rights. 

I have had to supplement D & K at other junctures.  The Sixth edition of D & K has cut the housing discrimination section considerably, taking out the cases used to show burdens of proof.  Thanks to Florence Roiseman (another amazing Property Prof), I hand out a selection from The Black Notebooks, a memoir by Toi Derricotte, about her experience trying to buy a house in Montclair, NJ in the 1970s.  Derricotte is a wonderful writer and her moving description allows students who have not experienced discrimination first hand an opportunity to empathize -- but I also use it to discuss lawyering skills.  I have the students role play as her lawyer and we work through what causes of action she might have. 

I also supplement this discussion by providing students with the Second Circuit's opinion in United States v. Starrett City Associates, which is a case in which DOJ (in the early Reagan administration) challenged the Starrett City corporation's attempt to maintain an integrated low to middle income housing project by using quotas to keep whites as a majority.  The court holds that the quotas violate the Fair Housing Act, with a stinging dissent by Judge Newman who contends that the purpose of the FHA is to promote integration and that the quotas were used for that purpose.  It is a terrific case for students to think about the significance of housing segregation and the role of housing segregation in leading to other forms of racial injustice, including environmental and educational.  However, because the quotas had the effect of keeping people of color out of Starrett City, the case is quite complex. 

Nuisance and Zoning are the two most obvious places to talk about environmental justice issues.  As I detail at length in Viewing the Cathedral from Beyond the Color Line:  Property Rules, Liability Rules, and Environmental Racism, common law courts removed themselves as arbiters of land use disputes in common law nuisance cases involving industrial polluters in part because they assumed that legislative and regulatory regimes were in better positions to make such decisions.  But, I ask my students, what if these regimes have failed some groups of people?  Do common law courts have an obligation to reassert common law rights?  This usually leads to an interesting and lively discussion.  I use Camden, New Jersey as a case study for students because Camden was not zoned until the 1970s and then one section (the African American community of Waterfront South) was zoned "industrial-residential." 

D & K contains a short list of articles about environmental justice on p. 917, but it is (as it must be) very incomplete.  For a wider array of sources, I suggest Environmental Justice:  Law, Policy and Regulation.  Here are some highlights:  For more case studies and excellent discussions of how communities have used law and organizing against unwanted land uses, I recommend Sheila Foster's work and Luke Cole's writing.  For an overview of environmental justice and a thoughtful analysis of causation, I suggest Alice Kaswan's article Distributive Justice and the Environment.  If you are a zoning person, I have found Craig Anthony Arnold's article, Planning Milagros: Environmental Justice and Land Use Regulation, detailing the effects of "expulsive zoning" very interesting.

I would be interested in other Profs' experiences including race and class in first year Property courses.  I have found students receptive and interested, as long as I don't seem to dictate political conclusions.   

Rachel Godsil   

Rights in Property Created Under Duress

Today's NY Times has an article about Dina Babbit, a holocaust survivor who was directed by Mengele to paint portraits of Gypsy prisoners at Auschwitz.  The paintings now hang in a museum at Auschwitz, and Ms. Babbit and the museum are in a long-running dispute about ownership.  The museum acknowledges that Ms. Babbit created the paintings, but argues that the paintings should be the property of the museum.  Based on the article, the museum seems to have two arguments in support of its claim of ownership.  First, it suggests that because the paintings are of such cultural and historical importance, the rights of the museum should trump those of the creator/original owner.  Second, a spokesperson for the museum suggested that because the paintings were created under duress, the creator has a reduced interest in the work:   “we do not regard these as personal artistic creations but as documentary work done under direct orders from Dr. Mengele and carried out by the artist to ensure her survival.”  I both arguments troubling, but the second argument is appalling.  I don't see how duress reduces the creator's claim to the created object.

Ben Barros

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Rivers on Heirs' Property

Thanks to Ann Bartow (in a comment to my last post) for pointing out an interesting paper by Faith Rivers (Vermont Law School) titled Restoring The Bundle of Rights:  Preserving Heirs' Property in Coastal South Carolina.  From the introduction:

Heirs' property refers to real property held without clear title.  The property is typically owned and inhabited by indigenous families, a significant number of whom can trace their ownership back to purchases by former slaves during the civil war and reconstruction.  The deed to the land is registered to a deceased family member.  The land has been handed down from generation to generation through the intestacy laws and is now owned by a group of relatives who possess fractionated fees as tenants in common.

The paper provides a historical overview of the problem and discusses related policy and reform issues.  Heirs' property presents a host of interesting and important issues.  I talk a bit about it when I cover tenancy in common and actions for partition.  Buyers (often white) can buy one heir's interest, seek partition, and buy the property in the partition sale, a problem that Rivers discusses in some detail.  The highly fractured ownership caused by generations of intestacy also reminds me of the Native American land at issue in Hodel v. Irving.

Ben Barros

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Property and Poverty

Many PropertyProf readers will be familiar with Hernando de Soto's important book The Mystery of Capital.  To over-simplify a bit, de Soto's key insights can be boiled down to two points.  First, de Soto argues that market economies can't succeed without good property and legal systems.  Even de Soto's most ardent critics tend to buy this point, which is an important one -- a market system imposed on, say, a post-communist country is very likely to fail in the absence of a functioning private property system.

Second, de Soto asserts that poor people the world over have possession of property that in the aggregate is worth billions (or trillions) of dollars.  Most of this property, however, is held through property systems that at best are informal and extra-legal.  The absence of legally-enforceable title makes this property "dead" capital -- difficult to sell and impossible to use as collateral for a loan.  De Soto therefore advocates for aggressive efforts to give the poor formal title to their property.  Though in places he is more cautious, de Soto often seems to suggest that this type of titling effort would magically lead to dramatically improved living standards for the poor.  This part of de Soto's thesis has been more controversial than the first.

Earlier this year, two new and important studies came out that test de Soto's hypothesis.  I've been meaning to blog about them for a while, and was reminded of them by a good article in this week's Economist.

The first study, Property Rights for the Poor:  Effects of Land Titling, was authored by Sebastian Galiani (Universidad de San Andres) and Ernesto Schargrodsky (Universidad Torcuato Di Tella).  The study takes advantage of a fascinating natural experiment that took place in a poor suburban area outside of Buenos Aires.  In the early 1980s, a group of squatters occupied wasteland that they thought was owned by the government.  It turned out that the land in fact was privately owned.  A law expropriating the property was passed with the intention of turning title over to the squatters.  Some of the private owners accepted the government's offer of compensation; title to this property was then transferred to the squatters.  Other owners contested, and continue to contest, the compensation amount in the slow Argentinian courts.  (It appears that these owners are only contesting the compensation, and are not arguing that the takings themselves were illegal).  As a result, some residents of the area have had title for twenty years while some of their similarly-situated neighbors still do not have title.

The authors summarize their findings as follows:

Exploiting this natural experiment, we find significant effects on housing investment, household size, and child education.  The quality of the houses is substantially higher in the titled parcels.  Moreover, households in the titled parcels have a smaller size, both through a diminished presence of extended family members and through a reduced fertility of the household heads, and they invest more in the education of their children.  However, we find only modest effects on access to credit markets as a result of entitlement, and no improvement in labor market performance.  Our results suggest that land titling can be an important tool for poverty reduction, albeit not through the shortcut of credit access and entrepreneurial income, but through the slow channel of increased physical and human capital investment, which should help to reduce poverty in the next generation.

On the improvement in housing stock, "[t]he proportion of houses with good quality walls rises by 40 percent under land titling, while the increase reaches 47 percent for good quality roof."  The impact on school performance was also striking, with children in titled-households staying in school an average of 0.6 years more than children in non-titled households.  That might not sound like that much, but the authors note that the improvement is comparable to that achieved by the Progresa anti-poverty program in Mexico, which makes direct monetary payments to families contingent on their children's regular school attendance. 

The land-titling did not make as noticeable an improvement in access to credit and labor markets, with only 4% of the titled households able to obtain mortgages and no discernible differences between the titled and control households in measures of income and employment status.  Access to credit is the focus of the second study, Do Property Titles Increase Credit Access Among the Urban Poor?  Evidence from a Nationwide Titling Program, by Erica Field (Harvard University) and Maximo Torero (International Food Policy Research Institute).  From the abstract:

To test whether proof of property ownership promotes the use of low-income housing as collateral, we evaluate the impact on credit supply of obtaining a property title through a land-titling program in Peru.  By directly observing whether loan applicants are requested to provide collateral, we can isolate the effect of property titles on credit supply from their effect on demand by comparing loan approval rates when titles are requested to rates when they are not.  Our results indicate that property titles are associated with approval rates on public sector loans as much as 12% higher when titles are requested by lenders and no relationship between titles and approval decisions otherwise.  In contrast, there is no evidence that titles increase the likelihood of receiving credit from private sector banks, although interest rates are significantly lower for titled applicants regardless of whether collateral was requested.

The failure of commercial banks to increase their rate of lending to households that obtain property titles through government programs has important implications for the potential effects of property reform on economic growth and poverty reduction.  One explanation for this failure is that titling programs reduce banks' perception of their ability to foreclose.  This is supported by data from Peru indicating that individuals with title have less fear of losing property rights.

Elaborating on the potential explanations for the failure of commercial banks' to increase lending to titled property owners, the authors note that:

Use of titles to securitize loans may fail in impoverished settings because transaction cost involved -- such as those associated with collateral processing, foreclosure and resale -- are sizable compared with the average loan sought.  Such costs are even higher when political or legal factors impede repossession of property . . . . [O]ne reason that titling programs may fail to reduce credit constraints is because they unavoidably signal to lenders that a government prioritizes housing for the poor, and hence is more likely to side with borrowers in enforcing credit contracts.

I was struck by glass-is-half-empty tone of the Field and Torero study's conclusion (ending with "The growth implications of titling programs may be greatly overstated") and the slightly disappointed tone taken by the Economist article.  I think that the negativity is in large part a reaction against the boosterism of de Soto and others who have presented land titling as a panacea for poverty.  Of course simply giving title to people is not going to cause commercial banks to lend (as I'm sure de Soto would admit).  All of the property owners involved are very poor, and so are not high on the list of commercial lending institutions' desired clients.  Further, as Field and Torero note, banks aren't going to be impressed with title as security if foreclosure is prohibitively expensive or discouraged by the government.

All of this said, though, it is hard to look at these studies and come to the conclusion that land titling is anything other than a good thing.  The improved quality of life described in the Galiani and Schargrodsky study alone seems to make titling worth the effort.  Add to that some improvement both in access to credit and in reduced interest rates on loans made, and titling seems even better.  It's not going to eliminate poverty by itself, but it is a useful step in the right direction.

Ben Barros

Image of slum housing in Jakarta, Indonesia, from our friends at Wikipedia Commons.  Sorry, they didn't have anything Latin American.

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NPR on Biodynamic Farming

For those of you out there who are both property geeks and wine geeks (like me and Marc Roark, who pointed me to the story), NPR has an interesting story on biodynamic winemaking in California.

Ben Barros

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Happy Birthday John Locke

Thanks to Rick Garnett at PrawfsBlawg for noting that today is Locke's birthday.  At the end of his post, Rick asks a great question:  "Which term is more often used (or misused) in law-school classes:  "Lockean", "Kantian", or "Rawlsian"?"  In property, it's got to be "Lockean", and a commenter to Rick's post has this good observation:

All three are miss-used quite regularly, but probably Rawls the most these days simply because he's "fresher". Most invocations of all three in law schools are not very good, in my opinion, but the miss-use of Locke and Rawls comes from different areas. In the case of Locke it's usually from libertarians who invoke what they think to be his account of property but mostly just show that they've never bothered to read the second treatis with any care, if they've read it at all, since Locke quite clearly doesn't have a libertarian account of property and it's not all that obvious how you could derive one from his actual view.

Ben Barros

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It’s Not About the Fox; Sometimes, It’s About the Whale

Last week, the ninety-one members of the 1L class at the University of Hawaii’s William S. Richardson School of Law were introduced to the law school ritual of briefing cases as part of their instruction in Legal Practice. Their first encounter was with Heppingstone v. Mammen, 2 Haw. 707 (1863), a delightful old case that is Hawaii’s answer to Pierson v. Post, discussed in several recent postings here at PPB. We try to expose our students to various aspects of Hawaii’s unique legal history, and Heppingstone is one of a dozen English and American cases decided from 1788 to 1881, see Annot., “Rights, Title, and Remedies of Hunter in Respect to Game Which he is Pursuing or has Killed or Wounded,” 49 A.L.R. 1498 (1927), that address the allocation of the ownership of captured whales between competing whaling vessels.

The case dates from a time when the courts of the independent Kingdom of Hawaii exercised admiralty jurisdiction to adjudicate disputes involving the numerous foreign vessels that called at its ports. John Heppingstone and John Mammen, masters of the whaling vessels Richmond and Oregon, respectively, disagreed over ownership of the proceeds of a bowhead whale taken in the Sea of Okhotsk, in the northwestern Pacific  Ocean. Boats from the Oregon sighted and pursued the whale late one afternoon; one boat was successful in harpooning the whale and making fast to it. The injured whale fled into nearby ice flows, however, and after two hours the whalers had to cut the line to save their boat. The whale disappeared, then reappeared and after considerable effort was again harpooned and made fast to Oregon’s boats. The whale again headed into the ice, however, and when nightfall found the Oregon with two of its boats stove in, one of the remaining boats cut its line to the whale in order to rescue men in the water and another boat’s harpoon came loose from the whale, leaving the now badly injured animal free to attempt its escape. Several hours after sunrise the next day, however, the men of the  Oregon again sighted the whale; to their chagrin, they observed that boats from another whaling vessel, the Richmond, were now actively pursuing it. The Oregon approached the Richmond and informed its master that the whale bore several of Oregon’s harpoons from the previous day’s hunt. The men of the Richmond ultimately killed the whale, and several of the Oregon’s harpoons were indeed recovered from its carcass. Captain Heppingstone of the Richmond then demanded half of the whale in recognition of his ship’s contribution to the capture, and the Oregon’s master refused.  Heppingstone then returned to the Richmond, declaring that he would seek a resolution to the matter when the vessels returned to Honolulu. 

Justice Robertson of the Hawaii Supreme Court, sitting as a trial court, heard the case in Honolulu several months later. He took evidence from numerous witnesses regarding the facts of the case and also regarding the custom of the whaling industry as to the ownership of whales where one ship killed a whale that had been wounded by another. In deciding the case, he first rejected the English common law rule that gave exclusive ownership of animals ferae naturae to the person capturing them and nothing to mere pursuers (which would have favored the Richmond), declaring that it had “been modified to some extent, by the universal usage prevailing in the whaling business” and that the court would decide the case “according to equity and natural right.” He then opined that the whale would have been the exclusive property of the Oregon if the whale had died before the Richmond reached it if the Oregon had asserted (as it did) its right to the whale before the  Richmond had been begun stripping the whale’s carcass of blubber and whalebone. On the other hand, if the Richmond had killed the whale before the Oregon arrived to assert its claim, the Richmond would have prevailed. In the present case, however, where the Oregon had asserted its claim to the injured but as-yet unrestrained whale before the Richmond could make fast to it (and in fact the boats of the Oregon had participated in the chase on the second day), the court concluded that “according to equity and natural right” the Richmond would be required to give up half of the whale’s proceeds (“seventy-five barrels of good bowhead oil and one thousand pounds of whalebone, of at least medium size”) to the Oregon.

Reading Heppingstone caused me to look up similar cases from other jurisdictions, and it soon became apparent that there is a surprisingly rich literature discussing these obscure disputes in a dead industry. Most notably, as Tamara R. Piety describes in her recent law review article entitled “Something Fishy: Or Why I Make My Students Read Fast-Fish and Loose-Fish,” 29 Vermont L. Rev. 33 (2004), the resolution of such disputes among whalers was the subject of an entire chapter in Herman Melville’s Moby Dick. Melville’s statement of the applicable rule of law (as quoted by Piety) was: “I. A Fast-Fish belongs to the party fast to it. II. A Loose-Fish is fair game for anybody who can soonest catch it.” In other words, a whale made fast to a vessel (as by a line attached to a harpoon embedded in the whale) belonged to that vessel, while a whale not yet so secured belonged to the first vessel able to reduce it to possession. Robert C. Ellickson analyzed the body of case law applying this custom of the whaling industry in an article entitled “A Hypothesis of Wealth-Maximizing Norms: Evidence from the Whaling Industry,” 5 J. Law, Econ. & Org. 83 (1989), and again in his book, Order Without Law: How Neighbors Settle Disputes (1991). He noted that courts almost invariably deferred to the whalers’ custom in adjudicating these disputes, and also remarked that different rules might apply in different whaling regions. The “Fast-Fish/Loose-Fish” rule described by Melville was applied in Greenland waters where the right whale, or bowhead, was the main quarry. The geographical extent of the alternative rule of “iron holds the whale” (ownership went to the ship that first harpooned a whale, as long as it remained in fresh pursuit—it appears that the Heppingstone court, because of the unique facts of the case, effectively split the difference between the two rules) is unclear, but Ellickson suggested that it prevailed in waters where the sperm whale was hunted. Right and bowhead whales were less aggressive than sperm whales, and a boat could more safely make fast to them during the hunt. One did not want to remain too close to an angry sperm whale, on the other hand, and in any event the latter were more likely to be encountered in groups, which put a premium on harpooning several whales as quickly as possible without delaying the chase by taking time to make fast to them. Thus the applicable rule may have been tailored to maximize efficiency for the particular species of whale most likely to be encountered in a particular region.

Although these cases are old and obscure, they continue to be cited from time to time, both for their value in refining the Rule of Capture and as examples of the private ordering of rights in public resources through custom. The works of Piety and Ellickson have already been noted, and two of the whaling cases (including the most recent of them, Ghen v. Rich, 8 F. 159 (D. Mass. 1881) (adopting a version of the “iron holds the whale” rule in a case involving a fin-back whale)), were cited by the court adjudicating ownership of Barry Bonds’ record-setting home run baseball, Popov v. Hayashi, 2002 WL 31833731 (Cal. Superior Ct. 2002), and in several law review articles analyzing that decision (though Heppingstone was not cited by the Popov court, its “split the difference” result foreshadowed the result in the California case).

Ghen also made a cameo appearance in Gregory M. Duhl’s article “Property and Custom: Allocating Space in Public Places,” the subject of two recent comments in PPB and now available in print at 79 Temple L. Rev. 199 (2006). Duhl, following Ellickson, cites Ghen as an example of how, “in the absence of private property ownership, communities adopt and follow customs and norms to create and order property rights.” Duhl endorses these community-based standards and argues that “[s]tatutory and court-made law generally should not interfere with informal property regimes that reflect the customs of the communities in which they operate; and second, society should use positive and common law, when necessary, to protect those regimes.” Duhl recognizes, however, that there are limitations to this precept; in the case of the ranching community examined by Ellickson, Duhl argues that it is premature to recognize the ranchers’ preferred allocation of rights as the norm without consideration of other members of the community whose interests may have been opposed to those of the ranchers. “If a practice that effects or involves multiple constituencies within a community is observed only by one constituent group, it does not amount to a communitarian norm.”

The evidence from the whaling cases supports the need for caution in the endorsement of supposedly communitarian norms, and the need to look carefully at definition of the “community” whose interests are being determined. Ellickson himself noted the argument that “the whalers’ norms . . . were too short-sighted to be wealth maximizing,” and remarked that “[t]he nineteenth-century whalers in fact depleted their fisheries so rapidly that they were impelled to seek whales in ever more remote seas. Had they developed norms that set quotas on catches, or that protected young or female whales, they might have been able to keep whaling stocks at levels that would support sustainable yields.” The bowhead, right, and sperm whales that were so valuable to the nineteenth-century whaling industry are now commercially extinct, and their very survival is in doubt. While the whalers’ custom established an allocation of rights that may have been highly efficient and favorable to the community of whalers, it was part of a regulatory scheme that was all but fatal to the community of whales. This supports the view that a supposedly community-based” standard that fails to recognize the interests of all affected communities, or interests within a community, should be given considerable scrutiny before it is embraced as public policy.

The image is George Catlin's The Whale Ashore at Klahoqua, from the National Gallery of Art.

Carl C. Christensen
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Brasington and Sarama on Deed Types, House Prices, and Mortgage Interest Rates

David M. Brasington (LSU - Dep't of Econ.) and Robert F. Sarama (Ohio State - Dep't of Econ.) have posted Deed Types, House Prices, and Mortgage Interest Rates on SSRN.  Here's the abstract:

Deeds spell out the legal guarantees the seller makes about a house. Using a house price hedonic with a Bayesian spatial error model, we find deed types dramatically affect a house's sale price. Ten deed types command a discount and one commands a premium relative to warranty deeds. The 27% discount for guardian deeds suggests a principal-agent problem. Certain deed types appear more often in poor neighborhoods. Foreclosure deeds have lower mortgage rates than warranty deeds. The Fair Housing Act and Equal Credit Opportunity Act forbid it, but we find higher mortgage interest rates in racially heterogeneous neighborhoods.

Ben Barros

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Justice Stephen Fortunato on Justice Alito

Been working on the next installment of my law review rankings trilogy (the first two installments are available here and here).  The third one looks at citations to secondary journals for a couple of purposes: first, to throw some light on ranking of law schools that publish them; second, to rank the journals themselves and facilitate comparison with primary journals.

I saw in the list of secondary journals Unbound: Harvard Journal of the Legal Left--an on-line journal, which I've enjoyed reading in the past.  (One comment here--has anyone else noticed that journal names are getting longer.  I think that's a mistake, if you want to get citations; nevertheless, with the longer titles, no one will mistake a journal's purpose.) 

Unbound's first issue had a terrific line-up of scholars.  And that led me to look at their most recent issue and then to this essay by Justice Stephen J. Fortunato, Jr. of the Rhode Island Superior Court (in Rhode Island the Superior Court judges are called "Associate Justices").  Justice Fortunato discusses Justice Samuel Alito in the context of a review essay on the edited collection, "The Lost World of Italian American Radicalism: Politics, Labor, and Culture."

I am always interested in hearing judges speak on larger issues of politics, religion, and morality.  I love Benjamin Cardozo's Nature of the Judicial Process and always enjoy reading judges' speeches.  (Some recent writings on antebellum Alabama judges here).  I commented earlier this summer on Justice Alito as a legal historian and what his note in the Yale Law Journal may say about his judicial philosophy.

I find Justice Fortunato's essay of particular interest--here is a jurist writing about another jurist.  I think you'll be interested in reading his thoughts.  This excerpt gives a sense:

Since the beginning of written history the virtues of compassion and mercy have been described as absolutely central to the process of judging, especially in equitable matters; and this has been recorded from the time of Aristotle, through the great English chancellors, to Roscoe Pound and Judge Jerome Frank, and to Justice Harry Blackmun's famous anti-capital punishment dissent in Callins v. Collins: "From this day forward, I no longer shall tinker with the machinery of death."

One searches in van in Alito's personal and professional life, as well as his written decisions, for compassion--or passion for that matter--and for legal commentary favoring the marginalized, the economically fragile, the voiceless.

You'll be hearing a lot more about compassion and mercy as traits that judges ought to possess.  Perhaps it's a related to the emerging aloha jurisprudence.  And certainly there will be debate on just what constitutes compassion.  Indeed, Judge J. Harvie Wilkinson has already opened that subject for debate with his important 2003 Virginia Law Review article "Why Conservative Jurisprudence is Compassionate."

Alfred  L. Brophy
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More on Katrina: the Plight of Displaced Renters

Last week, I wrote a post describing the lack of planning leadership in the Lower Ninth Ward and issues of concern for homeowners.  The fate of displaced renters is if anything more perilous.  Homeowners are guaranteed at least some portion of their property values as part of the Road Home Plan.  As eloquently described in a recent post on Counterpunch, human rights attorney and Loyola of New Orleans Law Professor Bill Quigley, displaced renters at this point have been abandoned.  Quigley writes: 

"Renters, who comprised most of the people of New Orleans before Katrina, are much worse off than homeowners. New Orleans  lost more than 43,000 rental units to the storm. Rents have skyrocketed in the undamaged parts of the area, pricing regular  working people out of the market. The official rate of increase in rents is 39%. In lower income neighborhoods, working people  and the elderly report rents are up much higher than that. Amy Liu of the Brookings Institute said “Even people who are  working temporarily for the rebuilding effort are having trouble finding housing.”

Renters in Louisiana are not even scheduled to receive assistance through the Louisiana CDBG program. Some developers will  receive assistance at some point, and when they do, some apartments will be made available, but that is years away.

In the face of the worst affordable housing shortage since the end of the Civil War, the federal government announced that it  refused to allow thousands of families to return to their public housing units and was going to bulldoze 5000 apartments.  Before Katrina, over 5000 families lived in public housing – 88 percent women-headed households, nearly all African American."

In response to the federal government's announcement, public housing residents (represented by Quigley and others) filed a civil rights law suit, Anderson et al v. Jackson, to prevent HUD from demolishing the public housing units and replacing them with mixed-income developments.   The complaint recounts some of the outrageous comments made by government officials.  Congressman Richard Baker's comment that "We finally cleaned up public housing in New Orleans.  We couldn't do it, but God did" was widely reported.  The comment by head of the City Council, Oliver Thomas, that New Orleans doesn't need "soap opera watchers" was new to me. 

Like the desire to shrink the footprint of New Orleans as part of rebuilding the city, replacing public housing projects with mixed-income housing makes a great deal of sense in theory.  The ills of concentrated poverty are well known.  However, the ideal of mixed-income development seems naive in the context of a destroyed New Orleans, little action to assist renters to return, and the backdrop of comments like those described above.  If little to nothing is being done to provide access to housing for low-income people, the law suit to save the public housing units seems critical to protect displaced renters from being completely excluded from New Orleans.

In the immediate aftermath of Katrina when our national shame was at its peak, many had hope that the failure to protect the most vulnerable might prompt new action on their behalf.  We have seen little evidence that government at any level has taken steps in this direction.

Rachel Godsil

Milestone: 33,333 vistors

 

We have just passed a milestone here at Properyprof--33,333 visitors.  Thanks for stopping by and contributing to the discussion of property law.  I hope you'll continue to stop by--and send your students here, too--and especially that you'll participate in the comments.  We're talking about all sorts of cool stuff: recent scholarship, recent cases (and some old ones, too), teaching methods, takings, note topics....  And I'm sure that Ben, Rachel, Calvin, and Carl are going to be saying a lot more worth reading.

Credits: The picture of a Roman milestone from St Margarethen Austria is courtesy of our friends at wikipedia.  The idea for this post came from Dave Hoffman, over at co-op.

Alfred L. Brophy

Art and Property

Today's New York Times carries a review of a new exhibit of Walker Evans photographs, Walker Evans. Or is It?, that raises some interesting questions about the nature of intellectual property.  (The reviewer's focus is on the questions raised about the nature of photography; I merely extend the inquiry a bit here.)  Some of Walker's prints from the 1930s that are in the public domain were digitally scanned and printed in an enlarged format, now on display until November 17 at the UBS Art Gallery on Sixth Ave. in New York.  The result, as the reviewer tells us, are images that are "seductive and luxurious -- velvety, full of rich detail, poster-size in a few cases and generally cinematic." Because they are unlike the smaller-format silver gelatin prints that Evans made "the pictures are read differently, more piecemeal, in a way that film in a theater is viewed differently from an image on television or on a computer screen."  From an artistic standpoint, the reviewer wonders whether photography is closer to music and theater, where each performance is an interpretation of an original score or text, or painting, where there is but one object, and copies are fraudulent.  From a property perspective, what is the property that inheres in a photographic image?  The economic rights are fairly obvious.  I'm more interested in what the civil law terms the moral rights of artists. Of course, the artist can control this by retaining the copyright, and because these Evans prints are in the public domain there is no issue of whether Evans's economic property rights have been violated.  That raises the Visual Artists Rights Act of 1990, which brings into federal law a portion of the civil law notion of moral rights of artists, and provides at 17 U.S. C. 106A (a)(3)(A) that a visual artist has the right "to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation . . . ."  From viewing the photos on display in today's Times, in my humble view, the digitial prints surely don't violate this statute.  But what of the larger, more philosophical, point?  What does a photographer own?  Is a photographic image more like a painting or a musical score? 

Calvin Massey

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Zoning, Lawns and Salt Lake City

From an article in today's NY Times:

Covered as it is by red bark and dotted with ornamental grasses and purple sage shrubs, the front yard of Salt Lake City’s mayor stands out in contrast against the other, uniformly green lawns on the tree-lined street.

Not only is Mayor Rocky Anderson’s yard distinctive, though. It is also illegal, one of hundreds of drought-friendly yards and gardens here that are in violation of zoning ordinances.

In light of a five-year drought that meteorologists say ended last year, Mr. Anderson is one of a growing number of homeowners in desert cities across the West who have traded in their manicured lawns and colorful flower beds for ground cover and gardens that require little water.

In Salt Lake City, though, all front yards must be completely covered with flat green grass, which needs to be watered often to keep it from turning brown and strawlike. Although the zoning ordinance is rarely enforced, some Salt Lake City leaders — including the mayor — want to bring the letter of law in line with current landscaping trends.

“I think the zoning ordinance is ridiculous,’’ Mr. Anderson said. “It clearly needs to be changed.”

The mayor is working with environmentalists to come up with an amendment to the ordinance. The final language has not been settled on, but so far, the mayor and other city officials said, it would require vegetation on only one third of a front lawn, and that third could be covered with any plant including drought-resistant ones. The rest of the lawn could be covered with mulch or gravel. . . .

In some Southwest cities, low-water landscapes, known as xeriscapes, have become the norm, and zoning ordinances have been changed accordingly. . . . Within the next 10 years, xeriscapes will be standard in Salt Lake City, too, Mr. Anderson said, if only because they are so much more affordable. He said that after he planted his, his water bill dropped 65 percent.

Ben Barros

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Questions on Property Rules, Liability Rules, and Hohfeld's Fundamental Legal Conceptions

I taught the first class of my property theory seminar today.  The material for the first class focuses on different ways to conceptualize property, and includes short readings on Hohfeld's fundamental conceptions and Calabresi & Melamed's property, liability, and inalienability rules.  Trying to draw the two together, I asked the students to think about how to express property, liability, and inalienability rules in Hohfeldian terms.  In A Theory of Property, Stephen Munzer has this to say on the subject (p.27, n.14):

Statements in Calabresi and Melamed's terminology can be paraphrased in Hohfeld's language.  If A's entitlement is protected by a property rule, then others have a disability (a no-power) in regard to obtaining the entitlement except at a price agreed to by A.  If A's entitlement is protected by a liability rule, then others have a disability in regard to obtaining or reducing the value of the entitlement unless they discharge a duty to compensate A ex post by a collectively determined amount.  If A's entitlement is protected by a rule of inalienability, A has a disability in regard to transferring the entitlement to others.

Munzer's approach seems accurate to me.  But are there other ways of doing it?  Take the basic facts of Boomer v. Atlantic Cement, with a polluting cement factory and complaining neighbors.  If the neighbors' entitlement not to be polluted-upon is protected by a property rule, could you say that the neighbors have a privilege not to be polluted-upon, and that the cement factory has a correlative no-right to pollute?  Similarly, with a liability rule, could you say that the cement factory has the power to alter the neighbors' position and the neighbors have a corresponding liability?  It seems that if the same relationships can be characterized in different ways, the usefulness of Hohfeld's approach is reduced -- the whole point is to have precision in the description of legal relationships.  So am I missing something in my understanding of Hohfeld's system when I characterize property rules and liability rules in this way?

Ben Barros

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Another Body Parts Scandal

From an AP article:

A leading medical firm has quietly recalled hundreds of human tissue products destined for transplants around the nation that were supplied by a North Carolina body parts broker believed to have a tainted history.

The broker used an unsterile embalming room to carve up dozens of corpses to procure tissue, a Raleigh funeral home director said Tuesday. The U.S. Food and Drug Administration shut down the body broker on Friday, but refuses to say how many people may have received potentially risky tissue.

It is the second scandal in less than a year in the booming tissue transplant industry. Cadaver tissue is used in more than a million transplants each year in such routine operations as back surgery and knee repairs. While such donated tissue does tremendous good, it is also little regulated, a three-month Associated Press investigation found earlier this year.

On the same subject, this article has details on the growing trade in human tissue.

Ben Barros

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Two from the VC

There are two interesting property-related posts up at the VC.  First, David Bernstein notes a Wall Street Journal article suggesting that the housing market might be headed for a hard landing.  Second, Ilya Somin discusses the use of eminent domain to take religious property.

Ben Barros

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Two New Articles On Takings

Mark Fenster and Eric Claeys have both posted new articles on takings on SSRN.  Both are very perceptive commentators on takings issues.  Fenster gets an extra shout-out as a founding member of the "Association For The Preservation Of Takings As a Property Issue" -- the Association's motto is "Con-Law Profs Keep Your Grubby Hands Off".  Maybe I'll make up some membership cards and hand them out at AALS.  Anyway, Here's the info:

Mark Fenster (University of Florida - Fredric G. Levin College of Law), Regulating Land Use in a Constitutional Shadow: The Institutional Contexts of Exactions:

In a refreshingly clear and comprehensive decision issued towards the end of its 2004 Term, the Supreme Court explained in Lingle v. Chevron (2005) that the Takings Clause requires compensation only for the effects of a regulation on an individual's property rights. Under the substantive due process doctrine, by contrast, courts engage in a deferential inquiry into both a regulation's validity and the means by which the regulation attempts to meet the government's objective. Lingle's explanation appeared to cast doubt on the doctrinal foundation and reach of Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), two regulatory takings decisions that reviewed “exactions,” regulatory conditions placed on proposals to develop land. These decisions required courts to apply the heightened scrutiny of their “nexus” and “proportionality” tests to review not only the challenged condition's effects but also its validity and means. In a somewhat oblique final section of Lingle that could be dismissed as non-binding dicta, the Court characterized its exactions jurisprudence as a limited effort to protect owners from extortionate exactions that single out individual property owners and confiscate their land and right to exclude the public. Lingle explained that the Court's rigorous tests for exactions, and their focus on regulatory means, apply only when an exaction's effects constitute a clear taking of property.

Lingle's description of its exactions decisions left important matters open for debate - matters that this Article attempts to resolve. Lingle's narrow characterization of its exactions decisions is not dicta because Lingle aimed to provide a comprehensive, unifying explication of the entirety of the Court's takings jurisprudence; and even if dicta, Lingle repeats similar statements in recent decisions about the limited nature of Nollan and Dolan and therefore makes plain what the Court assumes it has already settled. Furthermore, when read as Lingle requires, Nollan and Dolan fit within the broader approach to the Takings Clause that the Court articulated in Lingle and its other Takings Clause decisions from the same term, San Remo Hotel v. City and County of San Francisco (2005) and Kelo v. City of New London (2005). A narrow understanding of Nollan and Dolan is thoroughly consistent with the Court's effort to establish an institutionalist approach to the Takings Clause that defers to the properly derived decisions of competent, settled institutions. Nollan and Dolan can be read narrowly because judicial enforcement of the federal constitution is merely one institutional check among a web of public and private institutions that constrain local regulatory discretion. The powerful constitutional protection that “nexus” and “proportionality” provide may be limited, but in their shadow public actors in state courts and legislatures and in local governments, as well as voters, property owners, developers, and homebuyers offer a more complex, responsive, and locally sensitive web of legal, political, and market controls than the broad, formal rules established in Nollan and Dolan.

Eric Claeys (Saint Louis University - School of Law), That '70s Show: Post-Kelo Eminent Domain Reform and the Administrative Law Revolution:

This Essay contributes to a conference on Kelo v. City of New London sponsored by the Santa Clara University School of Law in February 2006. The Kelo decision has prompted many state legislatures to reconsider the organic statutes that enable local governments to use eminent domain to transfer land between private parties. This Essay suggests that these legislatures update these enabling statutes to the 1970s. Most state eminent-domain enabling statutes give localites extremely broad powers to decide when to condemn and transfer land. Courts typically read these statutes to trigger extremely deferential judicial review. During the 1960s and 1970s, in both state and federal case law, courts developed hybrid doctrines of administrative law to increase the scrutiny they apply to agency decisions in many areas of law, including spot zoning. These principles, however, have not really been applied to eminent domain, and particularly not to blight and economic-redevelopment actions.

The backlash against Kelo provides an opportune time to bring the '70s' administrative law revolution to eminent domain. Many of the complaints about local eminent-domain policy echo the public-choice concerns that fueled the '70s administrative-law revolution. If state legislatures update eminent-domain statutes to incorporate these principles of means-end scrutiny, they will probably make modest improvements in eminent-domain practice, by making decision making more rational and transparent, and less likely to be influenced unduly by special interests. These improvements are also politically realistic. The administrative-law doctrines in question do not categorically rule out any types of private land transfers. Moreover, because policy and legal elites are familiar with and largely accept the hybrid administrative-law doctrines in question, those doctrines should not threaten any of the major constituencies with an interest in eminent domain.

Ben Barros

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