PropertyProf Blog

Rosin on Benchmarking the Bar

Professor Gary Rosin of South Texas College of Law has just posted "Benchmarking the Bar: No Unity in Difference Scores " on ssrn.

His abstract is as follows:

Under ABA proposed Interpretation 301-6, the primary benchmark used to measure the adequacy of a law-school's academic program would be the amount by which is “local” Bar passage rate for first-takers differs from the overall passage rate for all first-takers from ABA-approved law schools. The study used generalized linear modeling as a method to compare Bar “difference scores” of ABA-approved law-schools in two states, New York and California. The study found that Bar difference scores in California were significantly more sensitive to changes in law-school relative LSAT scores than were Bar difference scores in New York. Bar difference scores - subtracting the “local” overall ABA Bar passage rate - do not fully adjust for variations in state grading practices, especially differences in minimum passing scores (“cut scores”) . . .

Propertyprof readers will recall that we discussed 301-6 earlier this year.  Rosin's paper has important implications for how we think about the use of LSAT scores for admissions, as well as bar pass rates for accreditation.

Alfred L. Brophy
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Sterk on Uncertainty About Property Rights

Stewart E. Sterk (Cardozo) has posted Property Rules, Liability Rules, and Uncertainty About Property Rights on SSRN.  Here's the abstract:

Clarity can be a considerable virtue in property rights. But even when property rights are defined clearly in the abstract, ascertaining the scope of those rights in concrete situations often entails significant cost. In some instances, the cost of acquiring information about the scope of property rights will exceed the social value of that information. In those circumstances, further search for information about the scope of rights is inefficient; the social harm avoided by further search does not justify the costs of the search.

Potential resource users, however, make decisions based on private costs and benefits, not social costs and benefits. Legal rules can create incentives to search for information even when the search would be inefficient. In particular, "property rule" protection often gives leverage to right holders disproportionate to the harm those right holders would suffer from intrusion on their rights. That leverage, in turn, gives potential resource users private incentives to expend time and money on search even when search will generate minimal social benefit. "Liability rule" protection, by contrast, limits incentives to conduct inefficient search for the scope of property rights.

Property doctrine reflects this insight in a number of contexts. Thus, high search costs can explain the unwillingness of courts to award injunctive relief in cases of “innocent” boundary encroachments, as well as the Supreme Court's recent limitations on the routine award of injunctive relief in patent and copyright cases.

Ben Barros

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Defeasible Estates in the News!

A school renovation project was put in jeopardy when 100-year old deeds surfaced showing that part of the relevant property had been granted for school playground purposes only, otherwise to revert to grantor's family.  The best quote, from the counsel for the title insurance company that didn't find the deeds and ended up on the hook:  "I would have to say, in my 30 years in this business, this is the first time I've seen a right of reverter anywhere but in a law school exam."

Ben Barros

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Inclusionary Housing

John Nolan and Jessica Bacher have an article on-line about inclusionary housing policies.  Here's the description:

This article explores the expansive legal authority that local governments in many states have to meet housing needs directly by providing for the production of new affordable homes. There is not a great deal of scholarship on the subject as we approach it. The emphasis in the academic literature in the field of affordable housing is on top down, systemic, or theoretical solutions: urging reforms in federal and state finance programs, imploring courts to penalize localities that engage in exclusionary zoning, describing in detail a variety of inclusionary zoning techniques; or explaining relevant theories or the economics of the issue of affordable housing. 

Our topic focuses instead on what individual municipalities can do to bridge the widening gap between income and housing costs. Like the impacts of climate change, which many municipalities are beginning to address, the housing crisis is, in the first instance, a local phenomenon; it fails to provide for local workers, prejudices the local economy, forces out seniors, and is beyond the reach of young families—the workers in local businesses and the moms, dads, daughters, and sons of local residents.  Our article illustrates a full range of tools and strategies that the law and established practice place in the hands of local citizens and their elected officials to meet local housing needs. The information contained in this article gives them something to do while waiting for systemic, top down, and more theoretical solutions to work.

We describe a “local inclusionary housing program” and outline ten steps that local governments and leaders can take to create and implement such a program.  These steps include:

conducting a survey of housing needs within the locality and its immediate region;
creating a citizens’ task force of leaders committed to meeting these housing needs;
establishing an advisory board of landowners and developers to help design economically and politically workable strategies;
adopting a housing component of the local comprehensive plan that contains a strategy for meeting defined housing needs;
adopting one or more of a variety of inclusionary zoning techniques;
identifying land and buildings that can be dedicated to affordable housing projects;
creating a local non-profit housing corporation whose corporate objective is the implementation of the local housing strategy;
providing financial incentives directly to projects that meet housing needs;
using a variety of outside public and private financial techniques; and
adopting local housing regulations that ensure the success and continued affordability of all housing produced under the inclusionary housing program.

This approach to meeting housing needs turns the traditional approach to solving the nation’s housing crisis on its head.  While recognizing limitations in local capacity, it does not regard local governments as parochial and exclusionary obstacles to the accomplishment of federal, state, or judicial housing goals.  Instead, it is based on respect for local land use traditions, the existence of extensive municipal legal authority to solve local problems, and recognition of the great diversity of local circumstance. 

The article ends with a modest proposal for a state housing law that provides adequate legal authority for inclusionary housing initiatives and assists and rewards localities that commit themselves to using that authority effectively. 

Ben Barros

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Kushner on Urban Planning and the American Family

James Alan Kushner (Southwestern Law School) has posted Urban Planning and the American Family on SSRN.  Here's the abstract:

American urban design is anti-family, generating unhealthy and unsafe communities and lifestyles. Although taxation schemes, zoning codes, and comprehensive planning requires an overhaul to become sustainable and healthy, the very design of neighborhoods must be altered to support families and children.

Ben Barros

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Brophy, New Media Rock Star

Al is featured in this week's Law Talk, a podcast series being done by Nate Oman.  Al discusses issues related to universities with links to slavery.  Check it out!

Ben Barros

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Barros on Group Size and Heterogeneity in the Design of Legal Structures

I've placed a new essay, called Group Size, Heterogeneity, and Prosocial Behavior: Designing Legal Structures to Facilitate Cooperation in a Diverse Society, on SSRN.  Here's the abstract:

Recent social science research has found that in many scenarios, increases in group size and diversity have a negative impact on cooperation and other prosocial behavior. A related study by the political scientist Robert Putnam has created a firestorm of debate within the past few months about the negative effects of diversity on the social fabric.

This essay addresses a subset of this larger debate. It looks to recent social science research to explore how and why group size and diversity impact cooperation and other prosocial behaviors. It then considers how to take the results of this research into account in designing legal structures, either by placing people into contexts that foster cooperation or by taking affirmative steps to mitigate the negative impacts of increases in group size or diversity. Increases of group size and diversity tend to undercut the informal mechanisms that communities use to encourage cooperation, and in many circumstances these mechanisms can be replaced by legal structures. To illustrate the potential for using the design of legal structures to encourage prosocial behavior, the essay draws on examples including residential community organizations, the management of natural resources, corporate boards, and the private microlending groups organized by the Nobel-Peace-Prize-winning Grameen Bank.

Comments would be very welcome!  If nothing else, the essay has the virtue of being short.

Ben Barros

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Balganesh on the Right to Exclude

Shyamkrishna Balganesh (University of Chicago) has posted Demystifying the Right to Exclude: Of Property, Inviolability, and Automatic Injunctions on SSRN.  Here's the abstract:

The right to exclude has for long been considered a central component of property. In focusing on the element of exclusion, courts and scholars have paid little attention to what it means for an owner to have a 'right' to exclude and the forms in which this right might manifest itself in actual property practice. For some time now, the right to exclude has come to be understood as nothing but an entitlement to injunctive relief - that whenever an owner successfully establishes title and an interference with the same, an injunction will automatically follow. This view attributes to the right a distinctively consequentialist meaning, calling into question the salience of property outside of its enforcement context. Yet, in its recent decision in eBay, Inc. v. MercExchange, LLC, the Supreme Court rejected this interpretation, declaring unequivocally that the right to exclude did not mean a right to an injunction. This Article argues that eBay's negative declaration serves to shed light on what the right has really meant all along - as the correlative of a duty imposed on non-owners (i.e., the world at large) to keep away from an ownable resource. This duty (of exclusion) in turn derives from the norm of inviolability, a defining feature of social existence and accounts for the primacy of the right to exclude in property discourses. This understanding is at once both non-consequentialist and of deep functional relevance to the institution of property.

Ben Barros

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Two Revealing Stories on Libraries and One on Peer Review

Moved up to September 21 because of the update below, which includes a link to a Times story which links to the books on the Bureau of Prison's approved list.

Been absurdly busy of late--teaching wills and trusts (the Christopher Benoit story makes for engaging class discussion on the Georgia slayer statute and it's a lot more complex that you'd think at first) and desperately trying to finish up papers on Thomas Dew and on Thomas Ruffin--so much so that I didn't realize until I got home last night that legal education was rocked by the story of UC Irvine's appalling mistreatment of superstar Erwin Chemerinsky (great commentary on this by Trina Jones).  This is sort of like 2003 when I was so consumed with work that I missed the story of the Space Shuttle Columbia disaster.

I must, though, notice two stories on libraries.  The first, sent to me by my favorite librarian, from the New York Times tells of the Bureau of Prison's recent decision to limit religious books in prison libraries to ones on an approved list.  Another shocking move (if true), but also one that reveals just how much we think ideas in books matter.  (Close readers of the legal blogosphere will recall that I'm interested in prison libraries as an indicator of ideas of prisoners.)  All of this is further evidence of the importance of the history of the book project.  Second, one from my hometown paper about a patron's removal of a book from a high school library.  Ditto to the last comment.

And now, thanks to Dan Solove's pointer, I see superstar historian David Oshinsky's story on the Alfred Knopf archives.  It contains decades of reader reports for Knopf and rejection letters.  Included among the reader reports, something on Jack Kerouac--“His frenetic and scrambling prose perfectly express the feverish travels of the Beat Generation. But is that enough? I don’t think so.”  Well, something else to think about as I work away (rather slowly) on hippie jurisprudence.

UPDATE:  A propertyprof reader was kind enough to alert me to this New York Times article, which provides links to the Bureau of Prison's list of approved books on religion.  Mighty, mighty interesting stuff.

Al Brophy
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Stoloff on Mt. Laurel v. Mipro

Matthew Stoloff (Syracuse) has posted A Taste of Things to Come?: Eminent Domain in the Name of Population Control on SSRN.  Here's the abstract:

In Mount Laurel Township v. Mipro Homes, LLC., 878 A.2d 38 (2005), 910 A.2d 617 (2006), the New Jersey courts were faced with the question whether the local government in Mount Laurel had legitimately exercised its power of eminent domain when it acquired a piece of property zoned for residential use under the disguise of open space preservation. In the past forty years, Mount Laurel's population exploded eight-fold and continues to grow at a rate of approximately 1,000 people per year. The property in question had already undergone some development when Mount Laurel exercised its power of eminent domain. Was Mount Laurel's motive to control population growth? If so, may Mount Laurel exercise the power of eminent domain to control population growth?

This paper provides an overview of urban sprawl and the legacy of Berman v. Parker. Next, I summarize the facts and legal issues set forth in Mount Laurel v. Mipro, a case in which a local government exercised its power of eminent domain under the disguise of the New Jersey open space preservation act. A critical analysis of the New Jersey Appellate Court and New Jersey Supreme Court's decisions follows. I argue that Mount Laurel's taking to control the population growth was exercised in bad faith and that no public purpose was achieved when Mount Laurel prevented Mipro from developing twenty-three residential homes. I also argue that the New Jersey Supreme Court missed an opportunity to explain why it did not think that Mount Laurel did not exercise eminent domain in bad faith and what, precisely, would constitute bad faith. The N.J. Supreme Court's three-paragraph decision is disappointing in light of the intelligent and engaging arguments Mipro and Mount Laurel made at oral argument.

Ben Barros

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Another Milestone: 100,000 Visitors

Well, we've passed another milestone:  100,000 visitors.  Thanks for visiting; and we're all looking forward to much more talk of property scholarship, cases, and teaching methods.

Your friends and colleagues at propertyprof.

The image is of an eighteenth century milestone from around Boston, from the University of Michigan's fabulous exhibit on Colonial America in photography.

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Advice to Law Journals: Part 9

9    do not reject out of hand pieces that are on esoteric subjects or that employ social science methodology

I've seen a lot of students over the years reject pieces because they are on topics that they (the editors) are not interested in--or perhaps do not understand.  In fact, a propos of this I was having lunch on Friday with a student who's working on a terrific empirical study of probate in antebellum Tuscaloosa.  (We've praised Lawrence Friedman et alia's recent empirical work on probate here.)  When talk turned to placing the article, he looked at me and said--rather pessimistically--"I guess a lot of editors will look at this and say 'I don't want to deal with cite-checking this.'"  I'm sure he's right; but that would be a mistake for an editor to say that.  They'll miss an opportunity in this case--and in lots of other ones, too--to publish something that's original and makes a significant contribution.

Alfred L. Brophy
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Conquest By Law

Thanks for the opportunity to participate.  Al has asked me to say a few words about my recent book, Conquest by Law (2005), which has just come out in paperback.  Conquest by Law is a case history of Johnson v. M’Intosh, the foundational Indian Law decision as well as the first case taught in many Property Law classes.  Johnson gave rise to the discovery doctrine, according to which, on the discovery of the North American continent, European discovers acquired fee title to all discovered lands, leaving the indigenous inhabitants an occupancy right alienable only to the discovering sovereign.   

The book (144 pages) is written for a general educated audience and offers an insider’s glimpse into the process of litigation and adjudication in the Early Republic.  It was 14 years in the works and is built on previously unused documents – the corporate records of the Illinois and Wabash Land Companies, the effective plaintiffs in the case -- which I discovered in the possession of the family of the Companies’ last secretary.  Conquest by Law provides a narrative account of the process of land acquisition and judicial lawmaking during and after John Marshall’s tenure on the Supreme Court.  Many of the figures students will encounter in their first year courses and Constitutional Law make appearances in the book, including Marshall, Daniel Webster, and Joseph Story, as do figures they will know from US History, including Thomas Jefferson, Andrew Jackson and William Henry Harrison.   

It is my hope that students will finish the book feeling they have a much better grasp of the complex origins of our judicial system and property law regime.

Lindsay Robertson
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Advice to Law Journals: Part 8

8    think seriously about articles on“hot” topics–-they are both good and deserve caution.

There is a lot to be said for articles on "hot topics"--they'll get attention; people are interested in reading them.  Then again, it's also often difficult to say something new about such topics.  It's hard to have something new to say in a thickly populated field.  And fads are notoriously unstable--what's "on fire" today may go out of fashion. 

Then again, where are some areas--empirical legal studies is one of them--where there's a lot of great work to be done and that are sure to stay hot for a long time.  We're finally turning to data to help solve some questions.

So look closely at "hot" topics--they may be great or perhaps not.

Endnote: The image of the sun is from our friends at NASA.

Alfred L. Brophy
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Bell and Parchomovsky on Reconfiguring Property in Three Dimensions

Abraham Bell (Bar Ilan and Fordham) and Gideon Parchomovsky (Penn) have posted Reconfiguring Property in Three Dimensions on SSRN.  Here's the abstract:

In this Article, we demonstrate that every property question invariably involves three distinct dimensions: (1) the number of owners, (2) the scope of owner's dominion and (3) asset configuration. Furthermore, we claim that the interplay among the three dimensions shapes the field of property and holds the key to understanding the deep structure of property law. On this view, property law is a balancing act that requires policymakers and private actors to constantly juggle the often-conflicting demands lying along these three dimensions.

The three-dimensional account of property we develop in this Article has important descriptive and normative implications. Descriptively, we show that property law accommodates conflicts by using as many as six different strategies to maximize efficiency over the three dimensions. Furthermore, we demonstrate that all property doctrines fall under one of the six strategies we enumerate. Accordingly, the Article offers a coherent and comprehensive descriptive account of the field.

Normatively, our three-dimensional approach offers a wide array of new policy responses to property challenges. It suggests that every property challenge may be addressed on any one (or more) of the three dimensions. This opens the door to new proposals for resolving such diverse long standing property challenges as managing property rights in tribal land and conservation properties, optimizing access to coastal land, and regulating environmental liability and intellectual property.

I heard Avi Bell give a version of this paper a few months ago, and it is very interesting.  Yet another in the Bell-Parchomovsky series of great articles on property theory.

Ben Barros

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Fischel on Miller v. Schoene

BE Press's on-line Review of Law and Economics has published William A. Fischel's The Law and Economics of Cedar-Apple Rust: State Action and Just Compensation in Miller v. Schoene.  Here's the abstract:

Miller v. Schoene approved the uncompensated destruction of cedar trees that were alternate hosts to a fungus that damaged apples but not cedars. Supreme Court Justice Harlan F. Stone’s opinion noted that deciding for either cedar or apple growers would amount to action by the state. Scholars have claimed that Miller marked the demise of the public/private distinction in constitutional law. This article presents historical evidence to the contrary. A widely-accepted standard—higher commercial value—commonly decided whose interests should prevail in such controversies. The analysis also shows that moral hazard explains why cedar owners were denied just compensation, which orchardists had originally been willing to tax themselves to pay. Cedar owners whose land actually gained in value when their trees were cut down nonetheless availed themselves of damages.

I read a version of this article a few months ago, and, like all of Fischel's work, it is outstanding.  If you are interested in regulatory takings, this is a must-read.

Ben Barros

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Yale Pocket Part on Regulatory Takings

The Yale Law Journal's Pocket Part has a series of three posts on compensation for partial regulatory takings -- that is, those regulations that reduce property values, and that are the target of ballot initiatives like Oregon's Measure 37.  The posts are Hannah Jacobs Wiseman, Partial Regulatory Takings: Stifling Community Participation Under the Guise of Kelo Reform; Harvey M. Jacobs, New Actions or New Arguments over Regulatory Takings?; and Ilya Somin, Why Robbing Peter Won’t Help Poor Paul: Low-Income Neighborhoods and Uncompensated Regulatory Takings.

Ben Barros

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Machu Picchu Artifacts Headed Back to Peru

We've been following this one for a while and here.  Now the New York Times is reporting (thanks to Carl Christensen of the University of Hawaii Law School for bringing this to our attention) that Yale and Peru have reached an agreement to repatriate some Machu Picchu artifacts that were brought to New Haven by Hirman Bingham.  Highlights from the story:

For several years Yale had argued that it had returned all borrowed objects in the 1920s, retaining only those to which it had full title. Yale proposed dividing possession of the artifacts. But negotiations between the university and the administration of President Alejandro Toledo, who was in power from 2001 until July 2006, broke down, and Peru threatened last year to go to court.

On Friday night Yale officials and a Peruvian delegation that traveled to New Haven signed a preliminary agreement that would return title to Peru of more than 350 artifacts — ceramics and metal and stone objects — that are considered to be of museum quality and several thousand fragments, bones and other objects considered to be primarily of interest to researchers.

The agreement, which establishes an extensive collaborative relationship between Yale and Peru, provides for an international traveling exhibition. Admission fees will be used to help build a new museum and research center in Cuzco, the city closest to Machu Picchu. The museum, for which Yale will serve as adviser, is expected to be completed in 2010....

The objects were excavated almost a century ago by Hiram Bingham III, a charismatic professor, aviator and later senator who is credited with the modern discovery of Machu Picchu, which he stumbled upon while looking for another archaeological site. Before his arrival the Inca complex had been known to only a few local farmers around Cuzco. Bingham struck deals with the government at the time to allow him to send objects back to Yale that he had excavated from about 170 tombs at the site.

Dedicated propertyprof readers will recall that we've much interested in Hiram Bingham's grandfather's writings about early Hawaii's property law.

Much to talk about here; shades of the Elgin Marbles and of Imperialism, Art, and Restitution.  The public domain image of Machu Picchu is from our friends at wikipedia.

Oh, and happy 220th anniversary of the Constitution, too!

Alfred L. Brophy
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Klick and Sitkoff on Hershey Trust

Jonathan Klick and Robert Sitkoff have recently posted an exciting paper on the cost of the 2002 injunction that prevented the Hershey Trust's sale of its controlling interest in the Hershey Chocolate Company, "Agency Costs, Charitable Trusts, and Corporate Control: Evidence From Hershey’s Kiss-Off," on Harvard's Olin Center Faculty Discussion Paper Series.  It's coming soon to the Columbia Law Review, I understand.

Their abstract reads:

 In July of 2002 the trustees of the Milton Hershey School Trust announced a plan to diversify the Trust's investment portfolio by selling the Trust's controlling interest in the Hershey Company. The Company's stock jumped from $62.50 to $78.30 on news of the proposed sale. But the Pennsylvania attorney general, who was then running for governor, brought suit to stop the sale on the grounds that it would harm the central Pennsylvania community. In September 2002, after the attorney general obtained a preliminary injunction, the trustees abandoned the sale and the Company's stock dropped to $65.00. Using standard event study econometric analysis, we find that the sale announcement was associated with a positive abnormal return of over 25 percent and that canceling the sale was followed by a negative abnormal return of nearly 12 percent. Our findings imply that instead of improving the welfare of the needy children who are the Trust's main beneficiaries, the attorney general's intervention preserved charitable trust agency costs on the order of roughly $850 million and prevented the Trust from achieving salutary portfolio diversification. Overall, blocking the sale destroyed roughly $2.7 billion in shareholder wealth, reducing aggregate social welfare by preserving a suboptimal ownership structure of the Hershey Company. Our findings contribute to the literature of trust law by supplying the first empirical analysis of agency costs in the charitable trust form and by highlighting shortcomings in supervision of charitable entities by the state attorneys general. Our findings also contribute to the literature of corporate governance by measuring the difference in firm value when the Hershey Company was subject to a takeover versus under the control of a controlling shareholder.

Paper here and it's also on ssrn here.

Among Klick's and Sitkoff's findings: the injunction cost the trust $850 million and led to $2.7 billion in lost shareholder value.  (That equates to about $62,000 per Hershey employee).  That leads to important questions about whether the injunction is worth the cost. I hope to talk some more about this important paper sometime soon--once I have working drafts of my papers on Thomas Dew and on Thomas Ruffin.  Close followers of propertyprof will recall that I'm much interested (and intrigued by) the Hershey Trust case.

Alfred L. Brophy
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Changes in Tree Law

Thanks to Carl Christensen for this story from the Washington Post about the Virginia Supreme Court's decision to change its law regarding neighbors and trees.

In the suburbs, there are few issues that can cause as much rancor and neighborhood discord as a deep-rooted, mature tree that has no regard for the neat boundaries of a property line.

Who pays if your neighbor's tree damages your house?  Yesterday, the Virginia Supreme Court weighed in on the contentious issue with a decision that overturns a nearly 70-year-old precedent. Now, for the first time, homeowners can sue to force a neighbor to cut back branches or roots or take out the tree altogether if it poses a risk of "actual harm" or an "imminent danger" to their houses, the court ruled. Tree owners can now be held liable for any damage caused by the tree. ...

In the past, most states used the "Massachusetts rule," which held that if a tree grew on your property but the branches hung into your neighbor's yard, that neighbor could cut them back as far as the property line. If the roots cracked the neighbor's patio or if the branches ripped their siding, it was their problem. And if the neighbors' pruning killed your tree, you could sue them for damages.

Maryland and the District still follow the Massachusetts rule, according to officials there. ...

[Virginia's new] rule, modeled after a 1981 case in Hawaii, says that a neighbor can't sue a tree owner for the little annoying things -- "casting shade or dropping leaves, flowers, or fruit." But it's a different story if the tree becomes a nuisance. The owner of a nuisance tree "may be held responsible for harm caused to [adjoining property], and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance," the court said.

Sounds like a fabulous topic for a student note!

Alfred L. Brophy
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