PropertyProf Blog

Volokh on Property Rights in Medieval Europe

Alexander Volokh (Georgetown University Law Center) has posted Property Rights and Contract Form in Medieval Europe on SSRN.  Here's the abstract:

Throughout western Europe, beginning about 1200, leasing of feudal lords' estates became more common relative to direct management. In England, however, direct management increased beginning around the same time and until the fourteenth century, and leasing increased thereafter.

This article models the lord-peasant relationship as a game where contract form is chosen as the result of a tradeoff between incentives for high effort and excessive risk-bearing. Leasing increases as peasants' living standards improve. As for England, the increase in direct management can be explained by property law innovations that increased the security of freehold tenure, and the increase in leasing can be explained not only by improving living standards but also by increasing security of leasehold tenure. This model also explains why small landowners are more likely to manage their land directly, and why large landowners are more likely to lease their small estates than their large ones.

Ben Barros

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Garnett on Planning as Public Use

Nicole Stelle Garnett (Notre Dame Law School) has posted Planning as Public Use? on SSRN.  Here's the abstract:

This short Essay explores the Supreme Court's suggestion in Kelo v. New London that public, participatory planning may be a constitutional safe harbor that separates impermissible "private" takings from presumptively valid "public" ones. After briefly reviewing the Court's discussion of the planning that preceded the Kelo litigation, the Essay examines how Kelo's emphasis on planning departs from standard rational basis review of economic policies and asks what such a departure means for future public-use litigants. The Essay then explores three possible practical benefits of a constitutional rule that encourages the government to engage in detailed planning before exercising the power of eminent domain: First, can public, participatory planning help legitimize so-called "economic-development takings"? Second, was the Court correct to assume that planning will limit pretextual takings, i.e., the taking of private property in the name of economic development but for the true purpose of benefiting a private individual? And third, will careful planning by the government lead to more successful projects?

Ben Barros

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Gardiner et al. on Dual Agency

J'Noel Gardiner, Jeffrey Heisler, Jarl G. Kallberg, and Crocker H. Liu (NYU) have posted The Impact of Dual Agency on SSRN.  Here's the abstract:

In 1984, the State of Hawaii's legislature enacted a law making it mandatory for real estate agents engaged in dual agency relationships (i.e., when the seller's and the buyer's agents are employed by the same real estate firm) to disclose this fact to both parties in writing. The assumption was that the dual agency relation was damaging to the seller. This study analyzes the effect of disclosed and undisclosed dual agency, and the impact of the legislation, using data prior to and after the legislation (approximately 2,000 residential sales in each period). To account for property characteristics, hedonic models for the log of sale price and for the log of days on market are estimated in each period. Our empirical analysis suggests that dual agency significantly reduced the sale price, but the influence was much smaller after the legislation (8.0% versus 1.4%). In addition, dual agency significantly decreased the time on market by approximately 8.5% pre-legislation and 8.1% post-legislation, although the influence was much stronger for lower priced residences. These results are confirmed using a seemingly unrelated regression model.

Ben Barros

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Son's Gametes Passing Intestate to Parents

CNN reports that the family of an Israeli soldier who was killed in action and died intestate can have his sperm impregnated into a surrogate:

In a precedent-setting decision, an Israeli court has ruled that a dead soldier's family can have his sperm impregnated into the body of a woman he never met.

Keivan Cohen, 20, was shot dead in 2002 by a Palestinian sniper in the Gaza Strip. He was single and left no will. But at the urging of his parents, a sample of his sperm was taken two hours after his death and has been stored in a hospital since.

When the family tried to gain access to the sperm, however, the hospital refused, on the ground that only a spouse could make such a request.

Arguing that their son yearned to raise a family, his parents challenged that decision in court. On January 15, after a four-year legal battle, a Tel Aviv court granted the family's wish and ruled the sperm could be injected into a woman selected by Cohen's family.

. . . Irit Rosenblum, a family rights advocate who represented the Cohen family, said the ruling was significant because it set a precedent for those seeking to continue bloodlines after death.

At the trial, Rosenblum presented testimony, including video recordings, in which Cohen expressed his desire to have children.

"He always said he wanted children," she told The Associated Press. "But there were no regulations in the law that deals with using sperm from dead people."

Rosenblum said soldiers increasingly have been leaving sperm samples, or explicit instructions on post-mortem extraction, before heading to battle.

She said she knew of more than 100 cases of Israeli soldiers who, before last summer's war with Lebanese guerillas, asked to have their sperm saved if they were killed. American soldiers have also begun donating sperm before heading to Iraq, she said.

I'll try to get a link to the decision itself.

Ben Barros

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Miceli, Pancak, and Sirmans on Broker Compensation

Thomas J. Miceli, Katherine A. Pancak, and C.F. Sirmans (University of Connecticut) have posted Is the Compensation Model for Real Estate Brokers Obsolete? on SSRN. Here's the abstract:

This study examines the traditional compensation model for real estate brokers under which both the listing and buyer brokers are paid by the seller based on a percentage of the property sales price. We argue that this model has not evolved to reflect contemporary legal agency relationships and technology-driven information availability. It therefore creates substantial transactional inefficiencies for buyers and sellers at both the matching and bargaining stages of a transaction. While there is evidence that market forces are pushing for a change in the status quo, there is also evidence that the brokerage industry is resisting this change by pursuing anti-competitive policies and laws. We explore the economics of the current and alternative compensation structures and suggest policy implications regarding anti-competitive behavior in the brokerage industry.

Ben Barros

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Fort on Equity and Federal Indian Law

Kathryn Fort (Michigan State) has posted The (In)Equities of Federal Indian Law on SSRN. Here's the abstract:

In 2005, the Supreme Court used the equitable defenses of laches, acquiescence and impossibility to dismiss the Oneida Indian Nation's request to remove its land from city tax roles. Later cases have extended the use of these defenses into other New York land claims. This article traces the historical origins of these three defenses, the origins of equity in England and the United States and provides some suggestions to Indian law practitioners bringing either land claims or treaty rights cases.

Ben Barros

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Stern on Dynamics of Disclosure

Stephanie Stern (Loyola Chicago) has posted Temporal Dynamics of Disclosure: The Example of Residential Real Estate Conveyancing on SSRN.  Here's the abstract:

Traditional legal approaches to consumer disclosure focus on content, comprehensibility, or compliance, with little attention to the timing and delivery of disclosure. Psychological research indicates that latecoming information has a significantly reduced impact on price negotiation and decision making. Individuals tend to persist in decisions once they have made an overt commitment to a course of action, and expenditures of time, effort, or money exacerbate this tendency. This Article uses the example of residential real estate defect disclosure to examine the effects of disclosure statutes that allow information to be provided midstream or late in a transaction. The majority of state laws require residential real estate defect disclosure following the buyer's offer or prior to the closing. Buyers are more likely to negotiate suboptimal discounts in response to latecoming defect information and to persist in transactions. This Article considers options for modifying state statutes to ensure early disclosure, such as requiring disclosure prior to the offer or at the outset of the buyer's search process.

Ben Barros

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Fennell on Property and Half-Torts

Lee Anne Fennell (University of Illinois) has posted Property and Half-Torts on SSRN.  Here's the abstract:

The idea that a tort can be split analytically into two parts – risk and harm – underlies a great deal of torts scholarship. Yet the notion has been all but ignored by property scholars employing Calabresi and Melamed's famous entitlement framework. Thus, in discussing an "entitlement to pollute," scholars rarely distinguish inputs to pollution (a factory's emission of fumes from a smokestack) from outcomes of pollution (a neighbor's grimy linens or respiratory distress). Instead, "pollution" is viewed as a single unified event that one party or the other receives an entitlement to control. This failure to conceptually separate risky inputs from harmful outcomes has led to imprecise and inaccurate ways of thinking and talking about entitlements. Property theory has suffered as a result, as has our understanding of how property and torts relate to each other. In this paper, I make a start at bringing the concept of the divided tort – here termed "half-torts" – into the property picture. Doing so generates a reformulated entitlement framework that fits more comfortably with moral intuitions, highlights the potential roles of luck and self-help in producing outcomes, and clarifies the available menu of alternatives for addressing property conflicts. The approach taken here advances a functional view of property as a container designed to collect inputs and outcomes with some regularity.

Ben Barros

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First In Time, Labor, and Property

Marc Roark has two new posts up in his series about the evolution of the idea of property, which we've mentioned here before.  The posts are First in Time, First in Right and How Labor Beget Location in the Economics of Property.  Check 'em out.

Ben Barros

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Beware Interference with Customary Rights

Thanks to Eugene Volokh for this story on the mayor of the tiny Spanish village of Fago who was murdered.  The mayor had angered some villagers when he "put a stop to the centuries-old custom of herding livestock through village."  He angered other villagers when he refused to issue hunting licenses and prohibited the village's only bar from setting up tables outside in the summer.  Villagers disliked him so much that "the police are considering the entire population of the village as suspects."

According to the Telegraph's story the village of Fago, "the second smallest village in the province of Aragon, comprises fewer than 90 stone-built residences tightly packed on cobbled streets around a 16th century Romanesque church, a stone's throw from the ancient pilgrimage route to Santiago de Compostela."

Yikes.  Be careful with interfering with the expectations of the people of Fago, especially regarding property.

Brophy

Simunovich on Post-Disaster Redevelopment

David Simunovich (Seton Hall School of Law) has posted The Quiet of Dissolution: Post-Disaster Redevelopment and Status Preservation Compensation on SSRN.  Here's the abstract:

In the wake of Hurricane Katrina, Gulf Coast residents, community groups, and policy makers have a uniquely powerful and dynamic charge — rebuild a great city. The chosen vehicle for housing redevelopment in Louisiana is the Road Home, a federally funded program designed to combine administrative flexibility while protecting the homeowner status of Katrina-displacees. The Road Home provides renovation grants of up to $150,000 for Katrina-displaced homeowners to rebuild storm damaged residences.

While the basic tenets of the Road Home are largely commendable, the program remains fundamentally flawed because it fails to protect Louisiana's most politically and economically vulnerable residents. In an effort to concentrate post-disaster redevelopment, the Road Home administrators will deny renovation grants to qualified residents living in neighborhoods where too few homeowners are returning to rebuild their community. This Comment argues that the restriction triggers federal displacement benefits under the Uniform Relocation Assistance and Real Property Acquisition Policies Act (URA). The URA's displacement benefits will be triggered by certain Road Home property acquisitions under a theory of functional displacement.

Ben Barros

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Symposium on Sprawl

On February 22, Widener University School of Law in Harrisburg, Pennsylvania will hold a symposium titled Squaring the Circle on Sprawl:  Tools and Options for Making Land Development and Conservation Compatible in Pennsylvania.  The brochure is here.  The symposium was organized by my colleague John Dernbach, with an assist from yours truly.  Participants include Thomas Hylton (Pulitzer prize winning journalist); James McElfish (Environmental Law Institute); Joanne Denworth (PA Governor's Office of Policy); Randy Patterson (Department of Economic Development, City of Lancaster); Kurt Paulsen (University of Wisconsin); Patricia Salkin (Albany Law School); Michael Lewyn (Florida Coastal); John Echeverria (Georgetown Environmental Law and Policy Institute); Robert McKinstry (Penn State School of Forest Resources); David G. Mandelbaum (Ballard Spahr Andrews & Ingersol, LLP); Anna Breinich (Pennsylvania Environmental Council), Louis Biacchi (Pennsylvania Builders Association), and Edward Wilson (10,000 Friends of Pennsylvania).  Pennsylvania and Delaware CLE credit is available.

Ben Barros

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Property in Spectrum

Jack Shafer has an interesting article on Slate about using property rules to allocate broadcast spectrum.  An excerpt:

Technology alone can't bring the spectrum feast to entrepreneurs and consumers. More capitalism—not less—charts the path to abundance. Hazlett and others, going back to economist Ronald H. Coase in 1959, have advocated the establishment of spectrum property rights and would leave it to the market to reallocate the airwaves to the highest bidders. Such a price system would tend to encourage the further expansion of spectrum capacity.

Owners would be allowed to repurpose the spectrum they owned—using, say, AM radio frequencies to carry pictures—as long as they didn't interfere with the spectrum of others. Companies in control of spectrum would even be free to subdivide their frequencies and rent it out to customers by the minute for the broadcast and reception of data.

If that last example sounds too weird for words, think of it this way: You rent a chunk of subdivided spectrum every time you make or take a cell phone call.

Ben Barros

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Capital Looking for Property Visitor

The Capital University Law School (Columbus, Ohio) is interested in hiring a Visitor to teach Property (3 credits in the fall and 2 in the spring) plus one other course each semester (subjects are negotiable) during the 2007-2008 academic term.   Salary depends on experience.  Interested persons should contact Professor Mark Brown at [email protected].

Ben Barros

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Millon on the Single Constituency Argument in Economic Analysis of Business Law

David Millon's important article, The Single Constituency Argument in the Economic Analysis of Business Law, has just been posted on ssrn.  It is forthcoming in Research in Law and Economics.  Here is his abstract: 

The essay points out an interesting parallel in law-and-economics business law scholarship. Working largely independently of each other, economically oriented scholars working in different areas have argued that the law should focus on the interests of a single constituency - shareholders in corporate law, creditors in banckrupcy law, and consumers in antitrust law. Economic analysts thus have rejected arguments advanced by progressive scholars working in each of these areas that the law should instead concern itself with the full range of constituencies affected by business activity. The law-and-economics single constituency claim rests in part on skepticism about judicial competence but the underlying objection is to the use of law for redistributive purposes. The primary value is efficiency, defined in terms of market-generated outcomes. In this essay, I question this political commitment, suggesting that it implies a strong tendency toward maintenance of the existing distribution of wealth. Even more importantly, the single constituency claim may actually have redistributive implications. In each of these areas of business law, however, it is a regressive program that favors owners of capital against those who are generally less well of, such as workers and small business owners.

The conflict that Millon identifies over this meta-issue between law and economics and more traditional analysis in antitrust, corporate law, and bankruptcy, has implications for property scholarship as well.  Do we focus exclusively on the interests of the person with record title to the property or to others as well?

I'll be posting in the next week or two on the Hershey Trust case, which affirmed a preliminary injunction against sale of the Hershey Trust's controlling interest in Hershey Chocolate (hence the illustration).  The injunction was granted in part it seems because of the community's interest in the company.  Not quite sure of the legal basis for this; the community (which was, after all named Hershey) seemed to be an implied beneficiary of Milton Hershey's trust.  Perhaps the makings of talk of Quaker jurisprudence, which may be related to aloha jurisprudence....

Alfred L. Brophy

Banished: American Ethnic Cleansings

On January 22 the documentary Banished: American Ethnic Cleansings, which is about Jim Crow era violence and the efforts to revisit those histories today, will premiere at the Sundance Festival.  It focuses on what people called "negro drives" by communities in Missouri, Arkansas, and Georgia.  The episodes began with allegations that black men attacked white women.  Then followed episodes of violence and black people were driven from their home communities.  To this day the communities continue segregated.

Marco Williams, who has produced such acclaimed documentaries as Two Towns of Jasper, is the director and co-producer of Banished (along with Mia Harris, who's co-producer).  Obviously I haven't seen it yet, although I have on good authority that it's excellent and very much look forward to seeing it soon.

Here's an interview with Marco Williams about Banished.  I hope you'll check out Banished's website, Banishedthefilm.com.  Look in particular for the trailers.  And if you're looking for a book to read along with it, I highly recommend James Loewen's Sundown Towns.

Alfred L. Brophy

Seinfeld Loses Brokerage Suit

Via the AP:

A Manhattan judge has ruled the 52-year-old comedian owes about that much as a commission to the broker who helped him find a town house on the Upper West Side that he and wife Jessica bought for $3.95 million in February 2005.

Seinfeld had argued that the broker, Tamara Cohen, didn't deserve the commission because she failed to show the West 82nd Street brownstone on the Jewish Sabbath, the day the Seinfelds wanted to see it.

The Seinfelds looked at the house and made a deal to buy it without Cohen after they were unable to reach her and she failed to return their calls.

Cohen said she had told the Seinfelds she observed the Jewish Sabbath and couldn't work between Friday evening and sundown Saturday. But the Seinfelds told the court they didn't know why Cohen didn't return their calls.

State Supreme Court Justice Rolando Accosta said "the evidence clearly indicates she served as the Seinfelds' real estate broker" and that she had shown them a number of residences before finding the town house. . . .

The judge ordered a trial to determine how much Cohen should get. At 5 percent, the total fee would be $197,500 and Seinfeld would owe Cohen $98,750; at 6 percent, the fee would be $237,000 and Cohen's cut would be $118,500.

Hat tip:  FB.

Ben Barros

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Europeans make the same mistake as Americans

A few months ago, I discussed Robert Bruegmann's book on sprawl in a post or two (a more extensive review is coming out in the Harvard Blackletter Journal; however, a draft is available on my Bepress site. )  One of his factual arguments was that sprawl is inevitable because it happens in Europe as well, despite European nations' anti-sprawl policies.

A recent New York Times article debunks this argument, by showing that at least some European nations have adopted the same kind of pro-sprawl policies that American governments have adopted.  The article points out that in Europe:

6,200 miles of motorways were built from 1990 to 2003 and, with the European Union’s enlargement, 7,500 more are planned. Government enthusiasm for spending on public transportation, which is costly and takes years to build, generally lags far behind. 

And a result, more people move to places served by roads but not public transit, thus increasing car use, etc.

Has sprawl reduced congestion or pollution?  Apparently not; the article states:

The 23 percent growth in vehicular emissions in Europe since 1990 has “offset” the effect of cleaner factories, according to a recent report by the European Environment Agency. The growth has occurred despite the invention of far more environmentally friendly fuels and cars.

Mike Lewyn

Individualized webpages

Bepress now allows faculty to create individualized webpages where they can post their articles (and even smaller documents such as op-eds and speeches).  For example, my webpage is here.

Mike Lewyn

Class Certified, Summary Judgment to Plaintiffs in Option ARM Case

I've posted before about the potential for sales-practices litigation arising out of the sale of Option-ARMs and other specialized mortgages.  Yesterday, a federal judge issued an order in Andrews v. Chevy Chase Bank certifying a class and granting plaintiffs summary judgment on their Truth in Lending Act disclosure claims.  The judge's order is here; the disclosure statement is here.  The judge also ruled that the plaintiffs were entitled to rescission.  I wouldn't be surprised to see an appeal, but the District Court's opinion seems to be well reasoned.  If duplicated in other cases, the District Court's general approach to the Truth in Lending Act -- the TLA is a remedial statute, and disclosures have to be crystal clear to protect lenders -- could spell trouble for a lot of lenders.  As I observed in my first post on the subject (follow the link above), mediocre disclosure is not going to offer much protection in the consumer context.

I've posted plaintiffs' counsel's press release after the jump.

Ben Barros

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