Saturday, May 30, 2009

More on Conwell v. Grey Loon

Thanks Ben, for asking me to share my thoughts on Conwell v. Grey Loon Outdoor Marketing Group, Inc. While Eugene Volokh describes it as “not the sexy sort of cyberlaw, I get tired of teaching “sexy” cases dealing with Playboy and various porn sites. But seriously, cases like this one are great teaching tools for that first part of the Property course when students wonder why we spend so much time talking about whether rights are “property” rights or not. This case also demonstrates that judges and lawyers really need to talk to people in the technology world to find out exactly what a web site is.

The plaintiffs in Conwell hired Grey Loon to design and host a web site for them. Grey Loon did so, and sometime later the plaintiffs asked for modifications. After the defendant modified the web site, plaintiffs decided that they didn’t want the modified web site, but wanted the old one. Plaintiffs didn’t pay for the modifications, so Grey Loon disabled the modified web site, which it could do, because it was the web site host. The defendant did not keep a copy of the original web site, so plaintiffs were left without a web presence. Defendant claimed breach of contract and plaintiffs counter-claimed conversion, arguing that the defendant’s action in terminating access to the original web site constituted conversion of the plaintiff’s property.

Early in the opinion, it looks like the court is going to be sympathetic to the conversion claim. The opinion does a reasonable job of explaining the roles of web site designer and web site host. It also explains that the plaintiff could have used another web site host, and if it had done so, it would have had to acquire the files from Grey Loon and transfer them to the other host. Hmm, if these files had to be acquired and transferred, they must be rivalrous, right? Otherwise, couldn’t anyone just copy them?

The court’s discussion of the contract claim previews how it will go awry on the property rights issue. First, it discusses its choice of the common law of contracts over Article 2 of the Uniform Commercial Code. The court recognizes that some courts hold that mass-market software is a good, but it rejects those decisions, stating that courts that treat software as a good simply because it is contained in a tangible medium “conflate the sale of a book with the sale of its intellectual content.” Exactly wrong! A book is a good. I own plenty of books, but I don’t hold the copyright in any of them. Likewise, I am the “owner” (okay, okay, licensee, perhaps) of the copy of Word with which I am typing this. While I’m using it, no one else can. If someone removes it from my computer without my permission, I’ll be ticked off. But I don’t own the copyright in it, so I can’t make a bunch of copies of it and sell them. Does the court think that everything that is intangible is intellectual property?

Apparently so. In its conversion discussion, the court jumps right into copyright law, finding that the web site was not a work made for hire and that Grey Loon had not transferred its copyright to the plaintiffs. It then finds that the plaintiffs, who were conducting their business through their website, were merely nonexclusive licensees of that site! Simple, according to the court: the plaintiffs did not own the web site, therefore they could not sue for conversion. 

The concurrence touches upon, or more accurately brushes against, the law of conversion, recognizing that several courts have held that intangible assets, such as electronic data and internet domain names (the “sexiest” cyberlaw case of all) can be converted. As I have argued (shameless plug warning) elsewhere, these cases are not very useful because the courts tried hard to fit a specific asset into the law of conversion without discussing the main characteristic that should make an intangible asset the subject of a conversion action: its rivalrousness. Conversion is an action for the deprivation of possession of an asset; while intangible assets cannot be manually possessed, some of them, such as domain names, can be exclusively controlled.

Can a web site be exclusively controlled and therefore converted? It seems that the answer is “yes,” but I don’t know for sure. But the people involved in resolving these disputes really have to become more familiar with how emerging intangible assets are created, possessed and transferred in order to create law that will be useful to those dealing in such assets. 

Juliet Moringiello

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

May 30, 2009 in Intellectual Property, Recent Cases | Permalink | Comments (3) | TrackBack (1)

Thursday, May 28, 2009

New Case on Property Rights in Web Sites

Eugene Volokh notes an interesting new case about property rights in web sites, Conwell v. Gray Loon Outdoor Marketing Group, Inc.  The opinion is available here.

Ben Barros

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

May 28, 2009 in Recent Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 26, 2009

Bertacchini, De Mot, and Depoorter on Commons, Anticommons and Semicommons

The new Review of Law & Economics has an article by Enrico Bertacchini (University of Torino), Jef P.B. De Mot (University of Ghent) and Ben Depoorter (Miami) called Never Two Without Three: Commons, Anticommons and Semicommons.  Here's the abstract:

A semicommons regime exists when the efficient use of a resource requires the co-existence of both common and private uses. In a seminal article, Henry Smith examined the system of semicommons property in regard to medieval open fields. In such a system, peasants shared common land for collective grazing, but used privately owned scattered strips for grain growing. This paper provides the first formal model of semicommons property regimes. Our model demonstrates (1) how the costs of strategic behavior in semicommons regimes may outweigh those in commons regimes and (2) how semicommons regimes may solve collective action problems by introducing anticommons arrangements. We extend previous property literature by offering new insights as to conditions in which mixed property regimes emerge and fragmentation solutions are favored.

Ben Barros

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

May 26, 2009 in Property Theory, Recent Scholarship | Permalink | Comments (1) | TrackBack (0)

Call for Papers: Journal of Law & Public Policy

From the JLPP at Florida:

The Journal of Law & Public Policy at the University of Florida Levin College of Law is currently accepting submissions for its real estate law issue. This issue will be published in December 2009 and will focus on cutting-edge real estate and property law topics. If you would like to submit either an article or essay, then we prefer to have your finished piece no later than August 15, 2009. For additional information or to submit an article please contact Editor-in-Chief Tiffany L. Anderson at [email protected].

Ben Barros

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

May 26, 2009 | Permalink | Comments (0) | TrackBack (0)

In Memoriam - John Cribbett (1918-2009)

Leading property scholar John Cribbett has died.  The University of Illinois has a memorial notice.

Ben Barros

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

May 26, 2009 | Permalink | Comments (0) | TrackBack (0)

Saturday, May 23, 2009

Property Regulation in Bryn Mawr

For those who are interested in popular conceptions of what it means to "own property," there's a robust discussion in the comments to this Philadelphia Inquirer story about what will happen with a mansion in Bryn Mawr.  Can the (unknown) owner of the house known as La Ronda knock it down and put up a McMansion?

To take two examples of the conflicting visions of the Constitution and property:

Does anyone understand the Constitution protects property rights? The preservation group should try to raise money and offer to buy the house, if it is so important! If they succeed, wonderful for them. If they can't, the owner can do what he wants. Preservation groups are the entities with rights, not everyone else? Come on!!

And then there is this rebuttal:

As to notion that property rights allow you to do whatever you want, get real: do they have the right to put a trash-to-steam plant or an oil refinery there? The right to store nuclear waste there or build a 7-11, a go-go bar, or Home Depot? No. If actions on your property come at the expense of others, then we resolve them through our common government (see constitution). The real question is what does the community lose when it loses its historic structures? If the homes/ infrastructure of Bryn Mawr looked the same as those of Moorestown or Cherry Hill - then they would be worth 1/2 their present value. By how much will this damage the unique brand of "Bryn Mawr" and reduce its value? The overall property value of the area is at risk and Bryn Mawr's elected officials have an obligation to protect it.

Al Brophy

Comments are held for approval, so they will not appear immediately.

May 23, 2009 | Permalink | Comments (0) | TrackBack (0)

The Poet of Property

We've spoken before about property poetry--about poetry of a meadow, about a poem for Virginia's Natural Bridge by John Thompson, editor of the Southern Literary Messenger, and about William Cullen Bryant's Ages.

Now I see that the New York Times has a story entitled "The Poet of Property"--it's about Valerie Haboush,  who writes real estate ads.  Not quite poetry in the William Cullen Bryant meaning, but certainly quite important.

Al Brophy

May 23, 2009 | Permalink | Comments (0) | TrackBack (0)

Friday, May 22, 2009

The Advantages of Take-Home Exams

In my first-year Property class, I always give closed-book, in-class exams.  In part, this is because of the nature of the Property class -- it is an introductory survey, and I am testing on the students' understanding of basic material.  This semester, I taught Real Estate Transactions for the first time.  Although this course has a survey aspect to it, I focused a lot on advising clients on legal and non-legal risks.  Because of this different approach, I decided to give a take-home exam for the course.  Here were the two big essay questions:

(1)  Early in the semester, we discussed the respective roles of attorneys and real estate brokers in real estate transactions.  Considering what we’ve learned over the remainder of the semester, what do you think the respective roles of attorneys and brokers should be?  Why?  (700 words).

(2)  You are a practicing real estate attorney.  Nancy Preston is an occasional client of yours.  She dabbles in real estate, buying or selling a property every year or two.  Getting into the office one day, you get the following voicemail from Nancy:  “Hi, it’s Nancy.  I’m thinking about buying a property out by the airport.  I haven’t seen it yet.  It is about 150 acres, mostly vacant.  There is a farmhouse near Route 43.  Joe Jordan currently owns the property.  Marty Condon is acting as his broker.  Marty told me that Joe would sell it to me for $750,000.  That’s $5,000 per acre, which is a pretty good price for that area.  He said that if I wanted to get the property, I’d have to buy it quickly, and that he’d give me a quitclaim deed, whatever that is.  He also said that there are some power line easements over the property.  Give me a call and let me know what you think.”  Describe the advice that you would give Nancy when you call her back.  Think broadly, and address both legal and non-legal risks.  Also think about the questions you would ask her.  (1,500 words).

Both questions are very open-ended.  It is possible to give this sort of question in an in-class exam, but I've found that the time pressure leads to so-so answers.  With a take-home exam, the students had plenty of time to think through each question.  I was especially happy with my students' answer to question (2).  They were very creative, and reflected a good understanding of the legal and non-legal issues that we discussed in the class.  They also reflected a good understanding of a big part of the lawyer's role in a transaction, which (in my view) is to advise the client of risks and risk mitigation strategies.  As an added bonus, the question put the students in a relatively realistic position, reacting to some vague input from a client.  In the context of this kind of upper-level elective, I was very happy with the take-home format.

Ben Barros

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

May 22, 2009 in Real Estate Transactions, Teaching | Permalink | Comments (2) | TrackBack (0)

Berger on Lessons Learned From Measure 37

Bethany Berger (U. Conn.) has posted What Owners Want and Governments Do - Evidence from the Oregon Experiment on SSRN.  Here's the abstract:

In 2004, Oregonians approved ballot Measure 37 by 61% to 39%. The measure answered the calls of critics of contemporary takings jurisprudence by requiring either compensation for losses caused by land use restrictions imposed after acquisition of the property or waivers of the restrictions. Three years later, voters acted to repeal most of Measure 37 by an even greater margin. Together the birth, brief life, and rapid demise of Measure 37 comprise an unusual natural experiment in property law. The results of this experiment go to the heart of debates about regulatory takings in property law and policy.

First, the Oregon experience resulted in a sea change in owners’ understandings of property rights. The 2004 vote reflected the popular understanding of land use restrictions as invasions of property rights. Faced with effective repeal of those restrictions, as reflected in passionate testimony before the Oregon legislature, Oregonians came to see the regulations as in fact the source of the property rights upon which they depended. In effect Measure 37 brought the background government and community support on which property rights depend into the foreground of owners’ consciousness. Second, government responses to Measure 37 challenged arguments that compensation will dispel the fiscal illusion under which governments operate and result in more efficient regulation. Rather than weigh costs and benefits, in all but one of thousands of cases, the government waived the regulations rather than compensate. These decisions were made without analysis of the benefits of the regulations waived, and despite predictably negative results. Finally, the thousands of claims and research catalyzed by these claims complicated questions of the compensation to which owners are justly entitled.

While limited, therefore, the Oregon experiment provided valuable grounded evidence for the continuing debate about takings law and the ways that property mediates the relationships between individuals, communities, and the state.

Bethany has written before on Measure 37, and this latest piece is a very important addition to the takings literature.  Many participants in takings debates assert that property owners want less regulation.  As the passage of Measure 37 showed, these assertions have strong grounding in fact.  But when Oregon property owners got what they asked for, they realized that they were better off with the regulations.  Or, put another way, what property owners really want is for their land to be free of regulation, but for their neighbors to be regulated.  Forced to choose between the two, they ultimately went with regulation.

Ben Barros

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

May 22, 2009 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Thursday, May 21, 2009

The Intersection of Federal Law and Homeowners Association Regulations

According to fox news, "U.S. Rep. John Boccieri introduced a bill Thursday that would ban neighborhood or homeowners associations from restricting the flying of service flags."  The full story is here.

Al Brophy

May 21, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 20, 2009

Promotion of American Homeownership

At the City Journal, Steven Malanga has an excellent story on the history of government promotion of homeownership in America.  A taste:

In December, the New York Times published a 5,100-word article charging that the Bush administration’s housing policies had “stoked” the foreclosure crisis—and thus the financial meltdown. By pushing for lax lending standards, encouraging government enterprises to make mortgages more available, and leaning on private lenders to come up with innovative ways to lend to ever more Americans—using “the mighty muscle of the federal government,” as the president himself put it—Bush had lured millions of people into bad mortgages that they ultimately couldn’t afford, the Times said.

Yet almost everything that the Times accused the Bush administration of doing has been pursued many times by earlier administrations, both Democratic and Republican—and often with calamitous results. The Times’s analysis exemplified our collective amnesia about Washington’s repeated attempts to expand homeownership and the disasters they’ve caused. The ideal of homeownership has become so sacrosanct, it seems, that we never learn from these disasters. Instead, we clean them up and then—as if under some strange compulsion—set in motion the mechanisms of the next housing catastrophe.

And that’s exactly what we’re doing once again. As Washington grapples with the current mortgage crisis, advocates from both parties are already warning the feds not to relax their commitment to expanding homeownership—even if that means reviving the very kinds of programs and institutions that got us into trouble. Not even the worst financial crisis since the Great Depression can cure us of our obsessive housing disorder.

Ben Barros

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

May 20, 2009 in Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 19, 2009

Lueck, Tennyson, and Geddes on Married Women's Property Acts

Dean Lueck (Arizona), Sharon L. Tennyson (Cornell), and Rick Geddes (Cornell) have posted Determination of the Dates of Passage of the Married Women's Property Acts and Earnings Acts on SSRN.  Here's the abstract:

The purpose of this document is to analyze and record the dates of passage of state-level acts in the United States that granted married women the right to own and control property separate from their husbands, and the date of passage of acts granting married women the right to own their market earnings. The first of those rights was granted through what has been termed the married women's property acts (MWPAs), while the second was granted through earnings acts (EAs). These acts were passed in most states between 1848 and 1920, and have been credited with weakening the common law doctrine of coverture. The document carefully examines, and quotes, state-by-state, the laws granting married women those two types of property rights. It provides an explanation for each date chosen.

Ben Barros

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

May 19, 2009 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Craig on Western Public Trust Doctrines

Robin Kundis Craig (Florida State) has posted A Comparative Guide to the Western States' Public Trust Doctrines: Public Values, Private Rights, and the Evolution Toward an Ecological Public Trust.  Here's the abstract:

This companion article to the Fall 2007 A Comparative Guide to the Eastern Public Trust Doctrines explores the state public trust doctrines – emphasis on the plural – in the 19 western states. In so doing, this Article seeks to make the larger point that, while the broad contours of the public trust doctrine, especially regarding state ownership of the beds and banks of navigable waters, have a federal law basis, the details of how public trust principles actually apply vary considerably from state to state. Public trust law, in other words, is very much a species of state common law. Moreover, as with other forms of common law, states have evolved their public trust doctrines in light of the particular histories, perceived needs, and perceived problems of each state.

This Article notes that, in the West, four factors have been most important in the evolution of state public trust doctrines: (1) the severing of water rights from real property ownership and the riparian rights doctrine; (2) subsequent state declarations of public ownership of fresh water; (3) clear and explicit perceptions of shortages of water, submerged lands, and environmental amenities; and (4) a willingness to raise water and other environmental issues to constitutional status and/or to incorporate broad public trust mandates into statutes. From these factors, two important trends in western states’ public trust doctrines have emerged: (1) the extension of public rights based on states’ ownership of the water itself; and (2) an increasing, and still cutting-edge, expansion of public trust concepts into ecological public trust doctrines that are increasingly protecting species, ecosystems and the public values that they provide.

The Article includes an extensive Appendix that summarizes each of the 19 states’ public trust doctrines. These summaries include relevant constitutional provisions, statutory provisions, and cases.

Ben Barros

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

May 19, 2009 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, May 14, 2009

Save the Date and Call For Papers -- First Meeting of the Association for Law, Property, and Society (ALPS)

Robin Paul Malloy (Syracuse) is organizing a new organization for property scholars, the Association for Law, Property, and Society (ALPS).  Here is the conference announcement and call for papers:

The first ALPS annual meeting will be held March 5-6, 2010, at Georgetown Law School in Washington, D.C.  Save the date.  Topics will include all areas of property (real, personal, intangible, cultural, and intellectual property), and themes will center on Property and issues related to Entrepreneurship, Development, Identity, Takings, Sovereignty, Finance, Mortgage Markets, Securitization, Environment, Sustainability, Land Use, Patents, Copyright, Trade Secrets, Internet, and the concept of Home. While all types of paper topics are welcome and encouraged two particular themes are being developed for book publications.  These two themes are: 1) Property, Identity, and Sovereignty; and 2) Property and Entrepreneurship.  Individual paper proposals or session proposals for a panel composed of three to four paper participants are welcome (panels may include a chair and discussant as well). Send proposals or questions to Robin Paul Malloy at [email protected].  (Send Robin an e-mail and he will put you on the mailing list for e-updates on the ALPS Annual Meeting).  More details to follow.

This is a great idea, and ALPS will fill an important need.  If you want to be in the loop, be sure to send Robin an e-mail.

Ben Barros

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

May 14, 2009 in Conferences | Permalink | Comments (0) | TrackBack (0)

Havard on Mt. Laurel and Land Banking

Cassandra Havard (Baltimore) has posted Public Land Banking and Mount Laurel II - Can There Be a Symbiotic Relationship? on SSRN.  Here's the abstract:

The story behind the litigation that produced two decisions in Southern Burlington County NAACP v. Township of Mount Laurel may accurately be told in terms of plans having gone awry. The New Jersey Supreme Court invalidated the two attempts by Mount Laurel to regulate land through the implementation of fiscal zoning ordinances. In its most recent decision, Mount Laurel II, the court imposed upon communities a state constitutional obligation to provide adequate housing opportunities for low- and moderate-income families. Mount Laurel II thus defines the constitutional limitations on a municipality's power to regulate land. It also establishes a supporting corollary: in order to fulfill this constitutional obligation, a municipality must plan for the growth of its low- and moderate-income population by providing adequate housing opportunities for this population

This Article presents an alternative land use regulation, a municipal land bank, as a means to aid municipalities in planning for and providing housing opportunities for its low- and moderate-income families. Municipal land banks acquire, manage, and dispose of land according to legislatively authorized policies and objectives, and can help ensure that sufficient land is available to provide for a municipality's supply of fair share housing. In addition, a municipal land bank would shift the responsibility of designing affirmative measures to attack exclusionary zoning practices from the judiciary to the legislature. The Article presents a policy overview of legislation and planning regulations necessary for the establishment of land banks, as well as the interrelationship between the local governmental body an the state and regional agencies that will oversee the operation.

Part II focuses on the Mount Laurel doctrine through an examination of Mount Laurel I and Mount Laurel II. The section concludes that the establishment of a municipal land bank would better serve the Mount Laurel doctrine than the remedy proposed by the court in Mount Laurel II. Part III introduces the concept of land banking, and provides a description of its operation and its implementation in foreign countries. The American Law Institute's study of land banking is also considered. Part IV discusses the legal issues surrounding the land banking concept: the constitutionality of the acquisition of property, the requirement that the land banking objectives benefit the general welfare of the public, and judicial review of land dispositions. Finally, Part V considers issues related to the operation of the land bank, including the legislation necessary to establish entities to oversee the land bank, as well as local development plans.

Ben Barros

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

May 14, 2009 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 13, 2009

Merriam and Salkin on Sex Offender Residency Restrictions

Dwight H. Merriam (Robinson & Cole, LLP) and Patricia Salkin (Albany) have posted Residency Restrictions for Convicted Sex Offenders: A Popular Approach on Questionnable Footing on SSRN.  Here's the abstract:

Municipalities across the country are adopting residency restrictions prohibiting convicted sex offenders from living in close proximity to places that children are likely to frequent. The number of sex offenders is large - by one report there are some 550,000 registered sex offenders nationally. As more and more local and state governments adopt residency restrictions, municipal lawyers and planners are increasingly finding themselves at the center of the debate. The literature and discussions in case law suggest that residency restrictions do not reduce recidivism, do not offer any real protection for potential victims, are generally not legally defensible, and thwart efforts to reform offenders and return them to society. This however, is ignored by the emotional demands of community residents to enact these laws to “protect vulnerable children” from convicted offenders. As a body is case law is starting to develop concerning these laws, it is becoming apparent that municipalities may have difficulty defending residency restrictions. This article provides a brief review of the literature and then discusses constitutional and statutory issues through an examination of recent caselaw.

Ben Barros

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

May 13, 2009 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Munzer and Raustiala on IP in Traditional Knowledge

Stephen R. Munzer and Kal Raustiala (UCLA) have posted The Uneasy Case for Intellectual Property Rights in Traditional Knowledge on SSRN.  Here's the abstract:

Should traditional knowledge - -the understanding or skill possessed by indigenous peoples pertaining to their culture and folklore and their use of native plants for medicinal purposes - receive protection as intellectual property? This Article examines nine major arguments from the moral, political and legal philosophy of property for intellectual property rights and contends that, as applied to traditional knowledge (TK), they justify at most a modest package of rights under domestic and international law. The arguments involve desert based on labor; firstness; stewardship; stability; moral right of the community; incentives to innovate; incentives to commercialize; unjust enrichment, misappropriation and restitution; and infringement and dilution. These arguments do, however, support “defensive” protection for TK: that is, halting the use of TK by nonindigenous actors in obtaining patents and copyrights. These arguments also support the dissemination of TK on the internet and via other digital media and the selective use of trademarks. The force of these conclusions resides in the importance of a vibrant public domain, and the absence of any plausible limiting principle that would allow more robust rights in TK for indigenous groups without permitting equally robust rights for nonindigenous groups.

Ben Barros

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

May 13, 2009 in Intellectual Property, Recent Scholarship | Permalink | Comments (2) | TrackBack (0)

Tuesday, May 12, 2009

Shackelford on DeSoto and Property Rights Formalization

Scott Shackelford (Stanford) has posted The Promise and Peril of Property Rights Formalization on SSRN.  Here's the abstract:

Free trade, free markets, and international investment are the paths to prosperity, but despite widespread adoption of these staples of the Washington Consensus more than 1.2 billion people still live on less than $1 per day. The search for determining the missing factor beyond these orthodox remedies for relieving poverty has led some to conclude that it is the growth of local capital markets built on robust, formalized property rights regimes that has led to uneven rates of economic development. This paper offers a critique of this hypothesis put forward in the property rights formalization literature, in particular Hernando de Soto’s work The Mystery of Capital that sparked popular interest in the field.

De Soto generally has one big idea per book. In The Other Path, he argued that the reason that informal economies existed was the large degree of bureaucracy in developing countries that forced small businesses to stay unregistered, and caused land to be untitled. The big idea behind The Mystery of Capital is that formalized, state-sanctioned property rights generate capital and promote economic development, as seen in the relative success of the legal systems of developed countries that have formalized their informal economies. This formalization allowed property to generate capital and grow developed economies. The explicit argument then is; if it worked for the West, it will work for the rest. In essence, De Soto and his compatriots argue that “This [formalized property] is the mystery of capital. Solving it requires an understanding of why Westerners, by representing assets with titles, are able to see and draw out capital from them.”

Formalizing property rights is a popular idea. Endorsements range from Ronald Coase, Milton Friedman, Francis Fukayama, Jeanne Kirkpatrick, to David Owen, and Margaret Thatcher. Bill Clinton publicly declared that de Soto was “probably the world’s most important living economist” for his work on property rights formalization. Even the World Bank now largely agrees with de Soto’s analysis, stating that “[l]and is a key asset for the rural and urban poor.” The goal of this paper is to determine whether such widespread praise for property rights formalization is justified based on an analysis of the available empirical literature on the subject. Particular attention will be paid to the importance of considering the various derivations of property rights in culturally relative terms.

The paper is structured as follows. Part I offers a general introduction to the property rights formalization literature, along with de Soto’s thesis and primary claims. Part II critiques de Soto’s methodology and data. Part III compares de Soto’s results with those of other empirical studies measuring the efficacy of property rights formalization. Part IV focuses on how these lessons have been applied using a case study from Indonesia and examples from South Africa. Finally, Part V summarizes the promise and perils of property rights formalization. In conclusion, property rights formalization does hold the promise of unlocking capital and spurring economic development, but reform must be both comprehensive and culturally relative considering the unique cultural, social, and political heritage of the societies in question.

Ben Barros

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

May 12, 2009 in Property Theory, Recent Scholarship | Permalink | Comments (1) | TrackBack (0)

Friday, May 8, 2009

National Park Service To Use Eminent Domain For Flight 93 Memorial

The AP reports that the National Park Service is going to use eminent domain to take land for the Flight 93 Memorial:

In a statement obtained by The Associated Press, the park service said it had teamed up with a group representing the victims' families to work with landowners since before 2005 to acquire the land.

"But with few exceptions, these negotiations have been unsuccessful," said the statement.

Landowners dispute that negotiations have taken place and say they are disappointed at the turn of events.

Ilya Somin has some comments over at the VC.  A couple of observations.  First, as every commentator that I've seen so far has acknowledged, this is clearly constitutional.  Even folks who advocate a narrow reading of "public use" would concede that this qualifies.  Second, my guess is that like so many eminent domain controversies, this is a dispute about money.  One version of the article has one of the property owners asserting that: "he had always intended to donate [the land] for the memorial".  Really?  If so, what, exactly, is the problem with having the property taken for eminent domain for use for the memorial?  He could always donate his compensation to the memorial.  Third, and related, it is possible that the government thinks that the just compensation awarded to the property owners will be less than the price they were offering.  Money, however, may not be the only big issue here.  There is a reasonable amount of political pressure to get this project going.  As the article notes, eminent domain can quickly sort out liens and other encumbrances on the property.  It can also dramatically cut down land assembly time, though this, of course, comes at the possible cost of the property owners' interests.

Ben Barros

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

May 8, 2009 in Takings | Permalink | Comments (0) | TrackBack (0)

Thursday, May 7, 2009

Van Erp on European Property Law

Sjef J. H. M. Van Erp (University of Maastricht) has posted From 'Classical' to Modern European Property Law? on SSRN.  Here's the abstract:

In this paper I will examine some fundamental aspects of European property law. Do European property law traditions share a common model of property law and, if this question is answered affirmatively, could this model be a foundation upon which European harmonisation and unification measures can be based? My thesis will be that the European property law traditions share a "classical" model of property law. A critical first analysis of this classical model will be offered, followed by an evaluation of the model from the perspective of an evolving European property law.

Ben Barros

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

May 7, 2009 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)