Friday, March 14, 2008

Alexander on The Social-Obligation Norm in American Property Law

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

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

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

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

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

Ben Barros

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March 14, 2008 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Schwarcz on Risk and the Subprime Crisis

Steven L. Schwarcz (Duke) has posted Markets, Systemic Risk, and the Subprime Mortgage Crisis on SSRN.  Here's the abstract:

The subprime mortgage crisis is undermining financial market stability and has the potential to cause a true systemic breakdown. This short and accessible essay, which is based on the author's 2008 Roy R. Ray Lecture at SMU Law School, uses this crisis to demonstrate that existing protections against systemic risk, which focus on banks and largely ignore financial markets, are misguided. Because companies increasingly access financial markets without going through banks, an effective framework for containing systemic risk must focus on markets.

Ben Barros

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March 14, 2008 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Foldvary on Land Rent Taxation

Fred E. Foldvary (Santa Clara - Department of Econ) has posted The Ultimate Tax Reform: Public Revenue from Land Rent on SSRN. Here's the abstract:

An ideal public revenue policy respects a person's right to privacy, does not discourage work or savings, and does not induce dishonesty. While income, sales, and value-added taxes fall woefully short of this ideal, land value taxation meets each requirement.

Ben Barros

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March 14, 2008 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 12, 2008

Eagle on Common Law and the Environment

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

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

Ben Barros

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March 12, 2008 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, March 10, 2008

Cultural Property Dispute Between Sweden and ...

Amidst all of the earth-shaking news about the governor of New York, it's easy to miss this: today's New York Times brings news of a dispute over 350 year old spoils of war captured by Sweden from Denmark--but in a twist of fate, that section of Denmark is now part of Sweden.  The story begins:

It’s hard to find anyplace in Europe today, even here in peaceable Sweden, where people aren’t squabbling over cultural property and the spoils of war. For some time, it turns out, a handful of nationalist Danes have been loudly barking about booty that the Swedes nabbed 350 years ago in a war with Denmark. The cache includes an ornate canopy from Kronborg Castle, of Hamlet lore, and recently people in Skane, a region in the south of Sweden that was ceded by Denmark in 1658 after losing the war, said they wanted the canopy handed over.

[I]nto the 18th century, as the show recounts, Sweden stocked its libraries and museums and churches with stolen arms, books, altarpieces, textiles and art by painters like Titian and Tintoretto, Dürer and Archimboldo. Much of this loot was pinched from Poland and Lithuania. The show argues that this was the custom of the day and that the best thing now is simply to lay everything on the table for all the world to see. But the clock can’t be turned back.

Not until the Congress of Vienna in 1815 (notice how that date falls after Sweden’s empire collapsed, a happy coincidence, no doubt) did countries in Europe generally agree that taking booty was a war crime. So there’s a cut-off date, a legal line in the sand.

Lot to talk about here.


March 10, 2008 | Permalink | Comments (1) | TrackBack (0)

Civil Rights Owner v. KKK Life Tenant


A black civil rights activist is fighting to close a store that sells KKK robes and T-shirts emblazoned with racial slurs. David Kennedy is confident he can make it happen. After all, he says he owns the building.

Since 1996, the Redneck Shop has operated in an old movie theater that, according to court records, was transferred in 1997 to Kennedy and the Baptist church he leads.

"Our ownership puts an end to that history as far as violence and hatred, racism being practiced in that place and also the recruiting of the Klan," Kennedy said. "This is the same place that we had to go up into the balcony to go to the movies before the Klan took it. So there's a lot of history there."

But legal documents also indicate that the man who runs the store, 62-year-old John Howard, is entitled to operate his business in the building until he dies. Now the dispute may go to court.

Kennedy, 54, has led protests outside the store since it opened but said he's never been able to close it because of the agreement that Howard can run the shop for life. . . .

Howard used to own the whole building. When his store first opened, he said, people threw rocks at his windows, spit in his doorway and picketed. A month later, a man intentionally crashed his van through the front windows.

"If anything turns people off, they shouldn't come in here. It's not a thing in here that's against the law," Howard said, adding that he was once the KKK's grand dragon for South Carolina and North Carolina.

To blacks, Kennedy said, the store is a reminder of this region's painful past, which includes the lynching of his great-great-uncle by a white mob.

The town of Laurens, about 30 miles southeast of Greenville, was named after 18th century slave trader Henry Laurens.

Some street addresses are still marked with the letter "C" that once designated black homes as "colored."

I'm curious about Howard's interest -- is it a life estate?  Or a tenancy "for life?"  If the later, depending on how it is written, it could actually be a tenancy at will, which might allow the landlord to terminate.

Ben Barros

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March 10, 2008 in Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)

Sunday, March 9, 2008

Oust Tenants, Convert to Condo

The Washington Post has a lengthy story on a loop-hole in a DC statute that limits the conversion of apartments to condos: if there are no tenants, you don't need their permission to convert.

Here's a taste of the article:

In the past four years, landlords emptied more than 200 buildings from Columbia Heights to Southeast, most of them rent-controlled, thwarting the intent of one of the nation's toughest tenant rights laws with the approval of the city government, a Washington Post investigation found. ...

Nearly three decades ago, city leaders created a law that gave tenants extraordinary power: the right to vote on whether property owners could convert rental buildings into condominiums. The law also requires owners to pay the city a fee on the sale of new condominiums, which would help displaced renters with relocation costs.

But as the District's real estate market thrived, landlords found a way out: The law doesn't apply to vacant buildings.

By emptying buildings and taking advantage of a provision known as a "vacancy exemption," landlords can avoid the tenant vote and the tax and turn rental apartments into condominiums. City officials have granted the exemptions even when government records chronicled widespread evictions and buildings riddled with code violations.


March 9, 2008 | Permalink | Comments (0) | TrackBack (0)

Friday, March 7, 2008

Johnson on Zoning and Sex Offenders

Asmara T. Johnson (Thurgood Marshall School of Law) has posted In the Zone: Sex Offenders and the Ten Percent Solutions on SSRN. Here's the abstract:

This Article challenges prevailing judicial orthodoxy that many sex offender residency restrictions are constitutional under the federal Ex Post Facto Clause. The paper applies the analytical framework in Smith v. Doe, the Court's most recent case involving sex offender legislation. It also forges a new way of thinking about these regimes as land-use policies that "negatively" zone individuals out of the urban cores. The paper proposes an innovative "positive" zoning scheme, the Sex Offender Containment Zone, that zones high-risk convicted sex offenders back into the city and that is effective, humane, and constitutional.

At first glance, sex offender residency restrictions appear plausible because they ostensibly place a convicted sex offender's residence out of reach of children. However, these regimes address less than 10% of the very real problem of child sex abuse, as over 90% of this abuse is committed by a family member or acquaintance of the child. On the other hand, many schemes effectively banish almost 100% of convicted sex offenders to society's literal and psychic margins, condemning many low-risk offenders who pose minimal recidivist risk to a lifetime of isolation and breeding optimal conditions for high-risk offenders to re-offend. The practical implications of this policy choice, therefore, are dangerous and real, lulling the public into a veritable false sense of security.

Ben Barros

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March 7, 2008 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 4, 2008

Property and Psychology Panel at APLS

Tomorrow I'm off to the American Psychology-Law Society Conference to take part in a panel titled A Psychological Perspective on Property Law: Current Topics and Future Directions.  The panel was put together by Jeremy Blumenthal (Syracuse).  Here's the panel abstract:

“The law can ask no better justification than the deepest instincts of man.” Although Justice Holmes’ words apply to all of legal psychology, they were written in the context of property law. Yet psychologists have largely neglected the study of property. We help remedy this situation, laying the groundwork for a mutually beneficial relationship between legal psychologists and property scholars.

The panel brings together legal academics, psychologists, and policy-makers working at the crossroads of psychology and property. After reviewing the scant empirical research taking a psychological perspective on property, we present empirical research in four areas: the psychology of “home;” intuitions about first possession and ownership; how individuals see property rights in art; and whether notions of ownership rights change simply because of how “property” is defined.

Our goal is to prompt empirical research in four broad areas with implications for property law, theory, and policy: (1) What benefits emerge from a psychological view of property law, and what questions can the law give to empirical researchers? (2) Does property law reflect lay intuitions, and does empirical research support black-letter law? (3) Are views of property and ownership innate? (4) Are those views malleable; if so, with what policy implications?

And here are the paper abstracts:

Jeremy A. Blumenthal, Psychology, Property Law, and Property Theory

Psycholegal study of property is a new and developing topic area; this paper serves as a broad introduction and overview to the field.  First, I identify the important theoretical connections between psycholegal research and property law, theory, and policy.  Next, I review the little work that has been conducted as well as some contemporary research.  Finally, I indicate several under-explored topic areas available to psycholegal scholars, and sketch what a research program taking a psychological perspective on property law might look like.  I demonstrate the close relationship between empirical psychological findings and property law/theory, and discuss the potential for more.

D. Benjamin Barros, Legal Questions for the Psychology of Home

This presentation will discuss a series of legal issues relating to homes and will connect these issues with questions about the psychology of home.  Legal scholars writing in this area have often made questionable assumptions about the psychological relationship between people and their homes.  Even in those instances where legal scholars have sought guidance from work on the psychology of home, they have been hampered by the absence of relevant literature or ambiguity in the literature that does exist.  The presentation therefore frames these issues in a manner relevant to both legal scholars and researches in the psychology of home.

Barbara A. Spellman and Frederick Schauer, Artists’ Moral Rights and the Limits of Ownership

Typically owners of objects have the right to do with them as they please.  However, the Visual Artists’ Rights Act (VARA; 1990) restricts what owners of some artwork may do with their acquisitions.  Our participants felt that it was much worse for an owner to alter a painting than a car.  How wrong participants thought altering or destroying a painting was depended on whether they agreed with the message of the painting and on how involved they were in creating artwork.  Thus, although mediated by their own predilections, people’s “moral intuitions” are consistent with the “moral rights” bestowed by VARA.

Ori Friedman, First possession: An assumption guiding inferences about ownership across the lifespan

This talk reports four experiments suggesting that people typically assume that the first person to possess an object, owns it. In two experiments, undergraduates selected first possessors over subsequent possessors when judging who owns a toy, but not when judging who likes it more. In another experiment, undergraduates selected first possessors over earlier pursuers when judging who owns an animal, consistent with the ruling in Pierson v. Post. In the final experiment, preschoolers selected first possessors when inferring ownership. Together, the findings provide evidence for an assumption that may lead intuitions about property to be consistent with property law.

Jonathan Remy Nash, Packaging Property: The Effect of Paradigmatic Framing of Property Rights

The two fundamental paradigms of property rights are the “bundle of sticks” and “discrete asset” approaches.  This Article describes an experiment to test the hypothesis that the paradigm under which property rights are framed has an effect upon whether and how much people accept interference with and regulation of those rights.  The results provide support for the proposition that that those who view property under the “discrete asset” paradigm would be less likely to part with their rights than those who subscribe to the “bundle” paradigm, and also confirm that the paradigmatic frame affects people’s perceptions of property rights.

I'm not sure how many property profs will be in attendance, but if you're there, please say hello.

Ben Barros

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March 4, 2008 in Conferences | Permalink | Comments (0) | TrackBack (0)

Lewinsohn-Zamir on More v. Less Property

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

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

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

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

Ben Barros

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March 4, 2008 in Property Theory, Recent Scholarship | Permalink | Comments (1) | TrackBack (0)

Bavan on Housing Discrimination and "Color" of Voice

Meena S. Bavan (HUD) has posted Does Housing Discrimination Exist Based on the 'Color' of an Individual's Voice? on SSRN. Here's the abstract:

Does housing discrimination exist based on the "color" of an individual's voice? Linguistic profiling occurs when people make judgments over the telephone about the character of the individual with whom they are talking. This study uses a logit model regression to determine if the race of a person searching for housing has any correlation with whether he or she is able to make an appointment over the phone. The data used for this analysis come from the Housing Discrimination Study (HDS) 2000 Phase I that was sponsored by the U.S. Department of Housing and Urban Development, which measured the patterns of racial and ethnic discrimination in urban housing markets across the United States through paired testing. HDS 2000 found statistically significant evidence that unacceptable levels of housing discrimination still persist across the nation. Although it is important to note that the paired tests used to measure levels of housing discrimination in HDS 2000 are based on the physical race of the tester and not whether the tester had a linguistic speech pattern commonly associated with a specific race or ethnicity, this research finds that there is little association between race and the ability to make an appointment over the phone. It was found that the predicted probability of making an appointment to inquire about a rental or sales unit is similar across racial and ethnic groups, varying slightly around 97 percent. These results suggest that while there may be minor differences among racial groups in the ability to make an appointment over the phone to inquire about a rental or sales housing unit, none of these differences are statistically significant. Although these initial findings indicate that linguistic profiling is probably not a major factor in measuring housing discrimination, it is crucial that further research be conducted in this area to more accurately determine whether and to what extent linguistic profiling affects levels of housing discrimination.

Ben Barros

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March 4, 2008 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, March 3, 2008

Singer on Property Norms and the Construction of Externalities of Ownership

Joseph Singer of Harvard Law School has posted How Property Norms Construct the Externalities of Ownership on ssrn.  Professor Singer's abstract reads:

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

Mighty interesting and important stuff, on which I hope to have some comments at some point.

Al Brophy

March 3, 2008 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Weiser and Hatfield on Property in Spectrum

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

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

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

Ben Barros

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March 3, 2008 in Intellectual Property, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)