PropertyProf Blog

Kelly on Marital Property

Alicia B. Kelly (Widener) has posted Money Matters in Marriage: Unmasking Interdependence in Ongoing Spousal Economic Relations on SSRN.  Here's the abstract:

This Article presents a rare exploration of the interactions among money, marriage and law while the relationship is ongoing. Using insights on the relational landscape from the social sciences as a lens, I examine the law's regulation of spousal economic relations and its account of and potential impact within a functioning marriage. Building on my previous work, my claim is that the law governing money in marriage should be grounded on a distinctive and clarified model of partnership marriage that understands the relationship to be of equal persons who join forces to share the burdens and benefits of a shared life. Contrary to the view that a partnership ideal is not well suited for the task, the framework I propose includes and advances the values of sharing and intimacy, but also supports individual autonomy and equality. Uniquely bringing together and evaluating contemporary marital property regimes and the duty of support, I critique the majority approach to both as it privileges a solitary market achievement model of wealth acquisition, disregarding unpaid work. This hyper-individualistic view works to perpetuate gender hierarchy and threatens individual autonomy, and at the same time undermines the norms of sharing and interdependence that are central to the relationship. In contrast, I endorse the shared and equal ownership rule in community property states as it rightly reflects the values of partnership marriage, and I argue for adoption of default rules of shared control over much marital wealth. Partnership marriage also demands a transformation of the duty of support into a simpler and broader egalitarian rule of shared marital wealth, untied from dependency-and enforceable even during marriage.

Ben Barros

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Louisville Looking For Property Visitors

From the announcement:

The University of Louisville School of Law anticipates hiring visiting
professors, both entry-level and experienced, for the 2009-10 academic year.
Our curricular needs may include (but are not limited to) civil procedure,
torts, trusts and estates, property, legal writing, and other subjects.
Please direct all inquiries and applications to:

Jim Chen
Dean and Professor of Law
University of Louisville School of Law
2301 South Third Street
Louisville, KY 40292

[email protected]
(502) 852-6879

Ben Barros

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Treanor on Epstein's Supreme Neglect

William Michael Treanor (Fordham) has posted Supreme Neglect on SSRN.  Here's the abstract:

In Supreme Neglect, Professor Richard Epstein has produced a clear and elegant synthesis for the general reader of his lifetime of thinking about the Takings Clause and, more broadly, about the role of property in our constitutional system. Appealing to both history and constitutional text, Epstein argues that the Takings Clause bars government regulations that diminish the value of private property (with the exception of a highly constrained category of police power regulations). This essay shows that neither the text of the clause nor original understanding support Epstein's broad doctrine of regulatory takings. Indeed, both text and the early history of the clause indicate that the clause did not apply to regulations at all; it applied only to physical seizures by the government- situations where the government physically take[s] property by, for example, building a road or a school on it.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Sagalyn on Land Assembly

Lynne B. Sagalyn (Columbia Business School) has posted Land Assembly, Land Readjustment and Public/Private Redevelopment on SSRN.  Here's the abstract:

A firm premise of urban redevelopment is the need for public action to deal with the practical problems of urban land assembly: numerous small parcels, fragmented ownership, and balkanized derivative interests, all of which hinder spontaneous market-driven transformations. Relying on the process of eminent domain to assemble land has been the stalwart convention of urban revitalization as practiced in the U.S. during the decades following World War II. Nonetheless, the use of eminent domain powers is fraught with obvious political problems. Because it is politically unpopular, public officials typically use it only as a last resort, and they are on the defensive from the first announcement of condemnation intentions. Because it is inherently controversial, ensuing litigation inevitably delays projects, sometimes terminally so. While government often prevails in judicial contests of condemnation, the process is not without its costs, as evident in the Kelo case, which intensified rather than diminished the controversy in the court of public opinion.

Given that the condemnation process is so cumbersome and costly, inherently litigious, and full of political risks, what other policy options exist to effectuate public ambitions that call for land assembly? In particular, what is the applicability of land readjustment schemes to public/private redevelopment projects commonly pursed in U.S. cities today?

In this paper I explore the lessons learned from the redevelopment of Times Square at 42nd Street, where 13 acres of prime, if blighted, land was assembled by the customary method of condemnation. This experience vividly argues for a more efficient strategy, though in such large-scale redevelopment project where issues of overall control and the redefinition of land uses are often paramount, land readjustment schemes may be difficult to apply. Land readjustment, however, may be a useful mechanism to rationalize land-use patterns in failed subdivisions, obsolete cooperative apartment houses, older inner-city suburbs or neighborhoods blighted by failed projects of any kind. In these situations, land readjustment is potentially a much more efficient process than governmental site ownership precisely because the original owners are retained as participants, thereby eliminating the need for an Request-For-Proposal (RFP) process to choose redevelopers. The process creates either salable publicly owned parcels or public improvements, both potentially at no cost to the public, while at the same time improving property values and thus, the tax base.

Land readjustment schemes are complex. They require large up-front expenditures of time and cost, tricky valuations of contributed interests and determinations of cost-equivalent land, and holdouts; in addition, the length of time it takes to execute a readjustment scheme defines owners' opportunity cost of pooling their land interests. To discuss the application of a land-readjustment model to urban land assembly for public/private redevelopment, I review three core policy issues (the creation of new economic interests, the balance of public objectives and private interests, and the implications for public finance of a voluntary land-pooling system) and discuss the perceived difficulties arising from the politics of development opposition and the fragmented character of city property markets. Where these politics obstacles are not dominant, land readjustment schemes hold greater potential application. In particular, the model of a joint-stock development corporation holds much promise in cities and states where the politics of development are less fractious and more consensual.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Lebovits on New York Residential Landlord-Tenant Law and Procedure

Gerald Lebovits (St. John's) has posted New York Residential Landlord-Tenant Law and Procedure on SSRN. Here's the abstract:

This book chapter, also published separately as a book/monograph, addresses residential landlord-tenant law, practice, and procedure in New York State.

Ben Barros

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Ferreira et al on Hosing Busts and Household Mobility

Fernando V. Ferreira (Wharton), Joseph Gyourko (Wharton), and Joseph S. Tracy (Federal Reserve Bank of New York) have posted Housing Busts and Household Mobility on SSRN. Here's the abstract:

Using two decades of American Housing Survey data from 1985 to 2005, we estimate the influence of negative home equity and rising mortgage interest rates on household mobility. We find that both factors lead to lower, not higher, mobility rates over time. The effects are economically large -- mobility is almost 50 percent lower for owners with negative equity in their homes. This finding does not imply that current concerns over defaults and homeowners having to relocate are entirely misplaced. It does indicate that, in the past, the mortgage lock-in effects of these two factors were dominant over time. Policymakers may wish to begin considering the consequences of mortgage lock-in and reduced household mobility because they are quite different from the consequences associated with default and higher mobility.

Ben Barros

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Rappaport on Originalism and Regulatory Takings

Michael B. Rappaport (San Diego) has posted Originalism and Regulatory Takings: Why the Fifth Amendment May Not Protect Against Regulatory Takings, But the Fourteenth Amendment May on SSRN.  Here's the abstract:

This articles explores the widely disputed issue of whether Takings Clause protects against regulatory takings, offering a novel and intermediate solution. Critics of the regulatory takings doctrine have argued that the original meaning of the Fifth Amendment Takings Clause does not cover regulatory takings. They have quickly moved from this claim to the conclusion that the incorporated Takings Clause under the Fourteenth Amendment also does not cover regulatory takings.

In this article, I accept the claim that the Fifth Amendment Takings Clause does not cover regulatory takings, but then explore the possibility that the incorporated Takings Clause does cover such takings. Applying Akhil Amar's theory of incorporation, I argue that there are strong reasons, based on history, structure, and purpose, to conclude that the Takings Clause had a different meaning under the Fourteenth Amendment. Amar argues that the Bill of Rights was dominated by republican ideas, but that the Fourteenth Amendment was founded on more liberal notions intended to protect individual rights. This would suggest that a broad reading of the Takings Clause would further the principles underlying the Fourteenth Amendment.

Moreover, that some state courts had come to apply takings principles to regulatory and other nonphysical takings in the period between the enactment of the Bill of Rights and the Fourteenth Amendment provides additional support for the possibility that the Fourteenth Amendment enactors would have understood it to apply to regulatory takings. While the paper does not attempt to prove that the Fourteenth Amendment Takings Clause applies to regulatory takings, leaving that task to others, it argues that critics of regulatory takings doctrine should no longer simply assume that the Constitution's original meaning does not apply to state regulatory takings.

Ben Barros

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Takings Under the Fifth And Fourteenth Amendments

Over at the VC, Jonathan Adler has an interesting post on takings and incorporation, drawing on Michael Rappaport's article mentioned in the post above.

Ben Barros

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Salsich on Diversity in Housing

Peter W. Salsich (Saint Louis Univ.) has posted Toward a Policy of Heterogeneity: Overcoming a Long History of Socioeconomic Segregation in Housing on SSRN.  Here's the abstract:

This article focuses on the exclusionary effects of land use regulation on housing availability and cost. Recent research by economists and others highlighting such effects is examined. The histories of parallel efforts to provide housing for low- and moderate-income families as well as persons with disabilities are reviewed. The article recommends that legislation be enacted that elevates affordable housing for low- and moderate-income to a level of national concern similar to national policies favoring efficient transportation, as well as protecting coastal and wetland areas and endangered species.

Ben Barros

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Boudreaux on Property and Development Policy

Karol Boudreaux (George Mason - Mercatus Center) has posted The Role of Property Rights as an Institution: Implications for Development Policy on SSRN.  Here's the abstract:

There is a very real risk that reforms enacted in the name of property rights will fail if policy makers employ the rhetoric of property rights, but don't pay careful attention to what makes property regimes function in the real world. When they are secure and divisible, property rights unleash entrepreneurship and economic prosperity and form the basis for trade and markets. Divisibility means that individuals may trade sticks in their bundle of property rights with others -- they are allowed to negotiate and decide how they may or may not use property they hold. In many countries legislative, regulatory and, at times, customary barriers block the divisibility of rights or fail to enforce rights, creating insecurity for rights holders. Well-intentioned development programs often create similar constraints. Such decisions mute the incentive structure that exists when property rights are robust and contracts are respected. When such barriers exist, economic growth is sacrificed, and human flourishing is constrained.

Ben Barros

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Hernando de Soto and Property in a Market Economy - Podcast

The podcast of the Property Section panel from last month's meeting in San Diego is now online.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Davidson on Property and Relative Status

Nestor M. Davidson (Colorado) has posted Property and Relative Status on SSRN.  Here's the abstract:

Property does many things - it incentivizes productive activity, facilitates exchange, forms an integral part of individual identity, and shapes communities. But property does something equally fundamental: it communicates. And perhaps the most ubiquitous and important messages that property communicates have to do with relative status, with the material world defining and reinforcing a variety of economic, social, and cultural hierarchies.

This status - signaling function of property-with property serving as an important locus for symbolic meaning through which people compare themselves to others - complicates premises underlying central discourses in contemporary property theory. In particular, status signaling can skew property's incentive and allocative benefits, leading people to over-invest in status - enhancing property and undermining welfare gains associated with trades around property. Similarly, status signaling risks warping the link between property and personhood, investing that connection with a potentially dysfunctional regard for the property of others. And status signaling is magnified by and can undermine property's communitarian links.

From a doctrinal perspective, ground-level property law intersects with the problem of relative status across an array of areas of intellectual property, real property, and personal property. At times law gives formal sanction to property's hierarchical signaling and at times it tempers this tendency, breaking up fixed hierarchies. Sensitivity to these dynamics holds important lessons for both the ongoing development of property law and for the continuing interdisciplinary exploration of this core aspect of property.

Ben Barros

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Schultz on Live Performance and IP

Mark F. Schultz (Southern Illinois) has posted Live Performance, Copyright, and the Future of the Music Business on SSRN.  Here's the abstract:

This article considers whether the emergence of business models based on free digital delivery of music and other content have rendered copyright protection less necessary or justifiable. Falling production and distribution costs have led many scholars and popular commentators to conclude that creators can and should embrace free distribution models for copyrighted works. In particular, many contend that the recording industry can survive and prosper by producing and freely distributing recordings as a form of advertising for the concert business. Some have further concluded that copyright law may need to change to reflect this new reality.

This article assesses such proposals, drawing insights from cultural economics, the literature on the economics of copying, and empirical data regarding the health of the concert industry. When free business models work, they can work quite well (e.g., Google and, long before it, commercial broadcasting). Examination of theory and practice shows, however, that such models are practicable and desirable only under certain, specific circumstances.

The success of free business models depends on a fairly tight link between the free content and a sufficiently remunerative good or service. Concert revenue is not particularly tightly linked to free recordings - certainly not as tightly as examples such as open source software and support services, or online children's games and plush toys. Moreover, the concert business is lucrative mostly for older, well-established acts. The data collected here on concert revenues indicates that a handful of older acts now make most of the money in the concert business, while ticket prices for smaller, niche acts have stagnated over the last decade. Although much maligned, the modern record business supports a vast, remarkably diverse variety of recordings. If it had to rely on concert revenue alone, some acts would probably continue to record, but diversity and consumer choice and welfare would likely decrease.

The shortcomings of the live performance model indicate that the existence and occasionally tremendous success of "free" business models do not justify wholesale changes in copyright policy or legal doctrine. Business models based on direct sales and supported by copyright still provide tremendous advantages for creators and consumers.

Ben Barros

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Murray on Private Management of Public Spaces

Michael F. Murray (Yale) has posted Private Management of Public Spaces: Nonprofit Organizations and Urban Parks on SSRN.  Here's the abstract:

This paper argues that a theoretical account of the formation and operation of the nonprofit organizations (NPOs) that increasingly manage public property must have a place for the way in which nonprofits manifest responsibility. The current nonprofit models, therefore, must be extended and refined in order to explain the private management of public space by nonprofits. NPOs take responsibility in two ways that reduce the cost of monitoring their performance and, consequently, help to create positive outcomes for public spaces with respect to funding and maintenance. First, NPOs as a single entity assume responsibility for public space in a way that contrasts strongly with the diffuse accountability of governmental managers and, more importantly, in a way that makes them easier to monitor. Second, the dependence of NPOs on their revenue streams - donations or user fees, depending on the type of NPO - makes them responsible for the success of the park in a way that both contrasts strongly with insulated civil servants and places the burden on the NPO, instead of on individuals outside the organization, to compile and communicate information about their operation for monitors. Private managers, therefore, are more accountable for their actions than governmental managers because they are more responsible and, thus, less costly to monitor. Several policy and legal reforms are helpful to fostering NPO responsibility that reduces monitoring costs.

Ben Barros

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Munzer on Community Biotechnological Assets

Stephen R. Munzer (UCLA) has posted Commons, Anticommons and Community in Biotechnological Assets on SSRN.  Here's the abstract:

I argue for three theses: T1 - It is possible to use access to scientific knowledge to reinforce existing scientific communities and sometimes generate new ones. T2 - It is possible to use community to generate scientific knowledge, patent reform, scientific research, medical diagnostics, and trade secrets and occasionally patents. T3 - On the spectrum from commons to semicommons to private property to anticommons, an anticommons can arise if a biotechnological asset is fuzzily defined. I defend these propositions against objection and establish the fertility of my account by considering intellectual property issues relating to synthetic biology. Along the way I present a new understanding of the public domain. I also pursue several projects that interweave throughout the article. The analytic project shows how careful definitions yield a useful taxonomy of biotechnological assets and their holders. The normative project explains why we should endorse intellectual property rights in some biotechnological assets but not others. Finally, the thematic project establishes larger contrasts between different forms of community on the one hand and individualism on the other, and reveals how my understanding of the public domain delivers a surer grasp of these contrasts and their roles in institutions of property.

Ben Barros

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Villazor from SMU to Hofstra

Propertyprof Rose Cuison Villazor is moving from SMU to Hofstra.

Ben Barros

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Claeys Reviews Merrill & Smith

Eric Claeys (George Mason) has posted Property 101: Is Property a Thing or a Bundle? on SSRN.  Here's the abstract:

This Review Essay reviews Property: Principles and Policies (2007), by Thomas W. Merrill and Henry E. Smith, focusing particularly on its conceptual claim that property consists primarily of a "right to exclude." On one hand, Property: Principles and Policies is a novel and important casebook because exclusion illuminates the first-year property course better than the organizing themes of many other leading casebooks. On the other hand, the "right to exclude" suffers from limitations that deserve to be fleshed out more fully. Conceptually, property is better understood as a right of exclusive use determination. Economically, "exclusive use determination" explains, as a "right to exclude" does not, the use and disposition rights that encourage owners to maximize the values of the assets they exclusively own. The Essay illustrates using trespass, nuisance, property-rule/liability-rule doctrines, rent control, and the public-use limitation in eminent domain.

Tate on Publicity Rights, Taxation, and the Power of Testation

Joshua C. Tate (SMU) has posted Immortal Fame: Publicity Rights, Taxation, and the Power of Testation on SSRN.  Here's the abstract:

Publicity rights, or the rights to the use of one's image and likeness, are a relatively recent form of property. Several states now recognize rights of publicity as survivable, meaning that the heirs of deceased celebrities can inherit those rights. Because U.S. law has traditionally granted each individual the power of testation, a celebrity can also freely devise the rights to persons of her choosing. Nevertheless, some scholars have recently argued that publicity rights ought to pass automatically to specified statutory heirs regardless of the celebrity's wishes. Destroying the power of testation, these scholars allege, will insulate postmortem publicity rights from the federal estate tax and protect familial interests.

This Article considers whether state law should, as a general principle, override testamentary intent with regard to postmortem publicity rights. Evaluating the problem from both a property perspective and a tax perspective, the Article concludes that no such interference with testamentary freedom is warranted. There is admittedly some historical precedent for protecting the interests of surviving family members with regard to rights intrinsically connected to one's person, such as the right to dispose of one's body and the right to profit from one's artistic creations. The protective measures taken in these contexts, however, either lack a coherent justification or developed for reasons that do not apply to modern rights of publicity. Moreover, exempting publicity rights from the estate tax based solely on the abolition of testamentary freedom would be contrary to basic principles of tax policy. While Congress could amend the Internal Revenue Code to alleviate certain difficulties of valuation, it may be preferable to maintain a tax incentive for celebrities to donate their publicity rights to charity.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Malloy on DeSoto

Robin Paul Malloy (Syracuse) has posted The Mystery of Capital and Inequality of Outcome in Formal Porperty Ownership on SSRN.  Here's the abstract:

Hernando DeSoto has argued that economic development is linked to creating accessible representations of property so that more people can own property and engage in market transactions. He asserts that less developed countries fail to advance economically because they do not make it easy to access and prove title. The implication is that economic development problems can be solved by creating legal infrastructure that makes deeds, mortgages, and title information accessible, predictable, stable, and transparent. This essay, prepared for a forthcoming book on "Economic and Social Inequality" being edited by Jordon & Olgetree, raises questions about DeSoto's primary thesis. It does this by asking questions about disparities in economic outcome in a country such as the United States. The United States has the entire legal infrastructure that DeSoto finds missing in the developing world and yet we find that economic outcomes vary significantly between and among racial groups. A key area in which this is true is that of housing.

One conclusion to be drawn from this state of affairs is that while DeSoto's work presents a good starting point for thinking about the relationship between property law systems and development, it is not a cure-all because the presence of a stable, predictable, transparent, and generally accessible property law system does not ensure economic success for everyone working hard to achieve it. Similarly, in the developing world that DeSoto addresses it is not as if there are no legal forms for deeds, mortgages, and title records. The key is accessibility, and so attention must be paid to disparities in accessibility.

Perhaps DeSoto is correct with respect to the need for property law representations and infrastructure as the initial conditions for major economic gains in a developing country, but the question remains as to other steps that need to be taken beyond those outlined by DeSoto when dealing with continuing evidence of inequality of outcome in a mature and developed market economy such as that of the United States.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Schmudde on the Subprime Mess

David Schmudde (Fordham) has posted Responding to the Subprime Mess: The New Regulatory Landscape on SSRN.  Here's the abstract:

An era of unregulated financial markets has resulted in a global financial disaster the likes of which has never before been seen. Central banks of all major countries, and the governments of these countries, are scrambling in uncharted waters to avoid a complete meltdown of the worlds' financial markets. More than a trillion dollars has been allocated to try to fix the mess.

How did we get to this point? The unlikely culprit was residential mortgages in the United States. Regulatory bodies took no action while this market grew with increasing acceleration, increasing irresponsibility, and increasing greed. One of the great financial bubbles was created. Financial instruments were created, given an imprimatur by rating agencies, and sold the world over. These seemingly secure investments, backed by mortgages on residences in the United States, were purchased by millions of unwary investors, even the most sophisticated investors, and on an unparalleled international scale. The investment banks, anxious to ride a wave of profitability, created more and riskier investments as the bubble inflated. Part II of this article describes the mortgage landscape which predated the collapse.

In 2006, the housing market peaked and began its crash, bringing with it all of the purchasers of the mortgage backed financial instruments.

All the players in the residential housing market were devastated. Homeowners lost their homes. Mortgage lenders disappeared. Investment banks either went out of business, or merely survived thanks to government infusions of cash. Investors in the mortgage backed securities lost virtually all the value of their investment. And stock markets around the world crashed with a resounding thud, wiping out vast amounts of wealth.

How did this happen. Where were the regulators? What are the weaknesses in our residential mortgage funding system?

Part III of this article analyzes the mortgage market, its weaknesses, and its regulatory scheme. The causes of the problem, namely irresponsible borrowers, greedy lenders, unresponsive regulators, the overzealous mortgage backed securities market, the rush by foreign investors to place money in U.S. investments, the irresponsibility of the credit rating agencies, and the collusion of appraisers, are discussed and scrutinized.

Part IV breaks down the new regulations and legislation enacted in the wake of the financial meltdown.

Part V examines Fannie Mae and Freddie Mac, their ultimate decline, and resulting takeover by the federal government.

Part VI discusses and analyzes the various lawsuits which have arisen from the mortgage meltdown.

Finally, Part VII attempts to specify weaknesses in the residential mortgage funding system, and to propose elements which must be addressed in creating a more stable, yet responsive mortgage market in the future.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]