PropertyProf Blog

Rybczynski on Centralized City Planning

At Slate, Witold Rybczynski has a post skeptical of centralized city planning that raises some points similar to those discussed in the recent Prawfs bookclub on Nicole Garnett's Ordering the City.

Ben Barros

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More Popular Outrage Today over Westboro

I'm sorry to keep beating this drum, but when the news demands it . . .

Today the newswires and blogs are crackling with outrage over the 4th Circuit's ruling that the man who sued Westboro Church for demonstrating at his son's funeral must pay Westboro's court costs ("Should Phelps' vile attacks on dead soldiers be rewarded with court fees? Court says yes"). 

As I posted earlier (see post on 3/26, below) about the Westboro demonstrations, when behavior -- including the use of public property -- is legal but normatively unacceptable, the inability of legal institutions to prevent it (even if that inability is appropriate) can lead to popular outrage and dangerous informal sanctions.  In the case of Westboro, it already has.  Expect more.

Mark Edwards

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Is Federal Land Subject to State Eminent Domain Power?

Several weeks ago, one of my students (hat tip: Emily Pabalan) forwarded an article about a bill pending in the Utah legislature that would authorize the state to condemn certain parcels owned by the federal government.  According to this AP story in yesterday's Washington Post, the legislation apparently has passed both chambers and been signed by the governor.  I was going to post a few thoughts, only to discover that I've been beaten to the punch both by Stephen Bainbridge and Eugene Volokh.

Like Professor Volokh, my initial reaction is that this use of eminent domain will be ruled unconstitutional under an analogy to M'Culloch v. Maryland.  If a state can't tax a federal bank, then it seems difficult to conceive that it could condemn federal property.  And this analogy raises an issue that I find both interesting and important -- i.e., the relationship between the taxing power and the eminent domain power.  As I point out in a forthcoming article in the William and Mary Law Review (see SSRN version here, pp. 28-31) taxes and takings share several theoretical characteristics but are almost always treated separately as a doctrinal matter.  Although some scholars (notably, Richard Epstein, Eric Kades, and Eduardo Peñalver) have tackled how these two powers should inform each other, I think there is probably a lot more to say.  Maybe the litigation that (inevitably) ensues from the Utah statute will help answer some of the questions.

Mike Kent

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Hernando de Soto and Property in a Market Economy

I'm delighted to announce the publication of Hernando de Soto and Property in a Market Economy, a book that I edited for Ashgate.  Here's the back-cover blurb:

Hernando de Soto is one of the world's leading public intellectuals. His books The Mystery of Capital and The Other Path have had a tremendous impact on debates about international development. But his work also has been controversial, and some of his arguments have received sustained criticism.  One of de Soto's core ideas is that the institution of private property is necessary for the proper functioning of a market economy.  Yet even though many property scholars closely follow de Soto's work, his ideas have been neglected in property law scholarship.  And although his work has been widely discussed in the context of property in developing countries, it has not had the same impact on the property issues that arise in mature market economies like the United States. This new collection seeks to remedy this neglect, bringing together a diverse group of scholars to apply de Soto's work to a wide range of contemporary issues in property law and theory. The important contribution it makes to debates and controversies in property law, as well as in related economic fields, will appeal to scholars of both law and economics.

And the table of contents:

Introduction, D.Benjamin Barros

The costs of regulation or the consequences of poverty? Progressive lessons from de Soto, Eduardo M. Peñalver

Invasions, innovation, environment, Carol M. Rose

Culture and capitalism: a comment on de Soto, Gregory S. Alexander

Hernando de Soto and the histories of property law, Alfred L. Brophy

Anticipating de Soto: allotment of Indian Reservations and the dangers of land-titling, Ezra Rosser

Leaving the body of property law? Meltdowns, land rushes, and failed economic development, Rashmi Dyal-Chand

The bell jar and the bullhorn: Hernando de Soto and communication through title, Nestor M. Davidson

Red tape and gridlock, Larissa Katz

Mercantilism, American style, Nicole Stelle Garnett

Hernando de Soto, formal property systems, and the intangible asset paradox, Juliet M. Moringiello

The economics of welfare: of Hernando de Soto and Susette Kelo, Denis J. Brion

And some nice things that have been said about the book:

'In Hernando de Soto and Property in a Market Economy, leading property scholars masterfully illuminate, challenge, and build on de Soto’s work, connecting it to central questions of property theory and social policy. This perceptive and multi-faceted exploration of how ownership works (or fails to work) offers essential insights to anyone interested in property rights and institutions.'  Lee Anne Fennell, University of Chicago Law School, USA

'This collection is a rich exploration and critique of Hernando de Soto's contributions to our understanding of the relation between the institution of property and the market economy. It is an essential resource for all interested in the theoretical, social, economic and historical underpinnings of land titling, and more generally property law and institutions, as a tool in economic development.' Claire Priest, Yale Law School, USA

You can read the introduction here.

Thanks to all the contributors, and to Lee and Claire.

Make sure your library has a copy!

Ben Barros

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In New York, Roommates and Normatively Acceptable Deviance

The New York Times today ran a great piece ("In New York, Breaking the Law on Roommates") on a regulation that captures the dynamic between acceptable deviance and property rights quite well: limits on the number of roommates that can share an apartment.

As the article shows, illegal behavior with regard to roommates is normatively acceptable.  As one 'deviant' said, “to pack unrelated people in an apartment? I don’t think it’s wrong.  It’s part of New York City culture.” And as usual, enforcement tends to follow the limits of acceptable deviance rather than the law itself: according to the Times, the law is "little known, widely broken and infrequently enforced."

But as the article also shows, the predictable danger when behavior is illegal but normatively acceptable -- selective enforcement -- is lurking.  According to a former New York City housing commissioner, that city's regulation was enacted with a very specific target in mind: "sketchy single-room-occupancy buildings and their often equally sketchy inhabitants."

Mark Edwards

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The Sidewalk at the Corner of Property and Norms

In my last post, I wrote about the predictable malfunction legal institutions face when behavior regarding property is illegal but normatively acceptable: selective enforcement.  Today I want to write about the opposite dynamic -- behavior that is legal but normatively unacceptable – and the predictable problem it presents for legal institutions: 'popular justice.'  The state cannot (or at least, should not) prevent such behavior, because it is legal; but, in the absence of formal sanctions, a community might apply its own informal sanctions, sometimes violently (for those interested, I write about these dynamics in more detail here).

Consider the use of public property. Many cities formally prohibit performances for money on public sidewalks, but in many places, it is normatively acceptable for some aspiring talent to croon, twang and pass the hat.  Most likely the musician won’t be subject to formal sanctions, because the imposition of formal sanctions tends to follow the limits of normative acceptability, rather than the law.

Now imagine a religious zealot standing in the same spot, demanding that you repent or go to hell.  That behavior is probably legal regardless of local ordinances.  But, regardless of its legality, that behavior is also probably normatively unacceptable.  The state can’t impose formal sanctions on the zealot, so the community may impose informal ones.  Passers-by might cross the street, shoot hard stares or laugh.

Or much worse.  Members of the infamous Westboro Baptist Church proselytize from public sidewalks near soldiers' funerals, holding signs that say, among other charming things "Thank God for Dead Soldiers," "He's Going to Hell," and "God Hates Fags."  The hateful sect apparently believes God is punishing the United States for tolerating homosexuality.

The Fourth Circuit recently ruled that the First Amendment prohibited the father of a soldier killed in Iraq from imposing private legal sanctions on the group in the form of damages, after it picketed his son's funeral.  Although the Supreme Court recently granted certiorari, it seems highly unlikely that the Court will find that the group can be held liable, for reasons Daniel Solove explains here. 

If legal institutions can't allow formal sanctions against normatively unacceptable behavior, the predictable consequence is that ‘popular justice’ will follow.  And, in fact, is has.  One motorcycle club has made it its mission to drown the sect out at soldiers' funerals.  More ominously, in at least one instance, on-lookers have violently attacked demonstrating sect members. 

The controversy has been framed as a First Amendment issue, but the right to use public space is also property rights issue.  The inability -- appropriate inability, but inability nonetheless -- of legal institutions to sanction legal but normatively unacceptable behavior with regard to the use of public property has predictably lead to vigilantism instead.  The question now facing the Supreme Court is: how, if at all, should legal institutions respond?  It can't change the normative acceptability of the sect’s behavior.  It must decide, therefore, whether to insist upon the legality of that behavior.  It will be fascinating to see whether strongly felt norms drive a change in the right to use public space. 

Mark Edwards

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How Many Credits For First-Year Property?

How many credits should the first-year Property course have?  I was recently asked whether we've taken on this topic here before, and much to my surprise I don't think we have.  I recall it coming up a few years ago on the propertyprof listserv, and from what I recall, the opinions varied widely.

I've taught Property both as a four-credit, one-semester course (at Catholic U.) and as a six-credit, two-semester course (at Widener, both as 3-3 and 4-2).  I might get kicked out of the PropertyProf's union for saying this out loud, but I think that Property can be taught well as a four-credit class.  Sure, I like having six credits, and I can usefully fill the time.  A four-credit Property course is a bit superficial, but to me that's okay.  I view the first-year Property course as an introduction to the subject, and I would rather give my students an overview of a wide-range of topics than go into great depth on everything.  For example, I think it is educational malpractice to teach Property without doing at least the basics of recording (the indexes, how the different kind of statutes work, the shelter rule, inquiry notice), but I don't think there is great value in going into depth on difficult and obscure recording problems.  The same point can be made for most of the other subjects that we teach in Property. 

Even though I like having six credits, and I think that the subject can be done well in four, the ideal is probably five.  Four seemed a bit too rushed, and six seems like a bit too much.  The big problem with five credits is that it doesn't help with the Associate Dean's scheduling problems -- most five credit courses would be taught as 2/3 or 3/2 over two semesters, taking up two teaching slots for a professor.  As far as the other option that I've seen at some schools - three credits - there comes a point where the superficiality of an intro course reaches a point of absurdity.

So, what do you think?  Three, four, five, or six?  Anonymous posts are okay, but not preferred.

Ben Barros

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Norms, File-Sharing and the Latest from the Thomas Case

Legal institutions struggle when the legality of behavior, and the normative acceptability of that behavior, diverge.  Sometimes behavior that is formally illegal is normatively acceptable; sometimes behavior that is legal is normatively unacceptable.  Want proof?  When you drive home today, drive 1 mph under the speed limit.  You'll find that behavior that is illegal -- speeding -- is normatively acceptable, but that legal behavior -- driving below the speed limit -- is normatively unacceptable. 

Legal institutions facing those divergences falter in predictable ways.  Behavior that is legal but normatively unacceptable cannot trigger a formal response from legal institutions, so tends to trigger 'popular justice' responses -- sometimes as mild as tailgaiting, sometimes as severe as violent vigilantism.  Behavior that is illegal but normatively acceptable usually does not trigger a formal enforcement response, but it can -- at the enforcer's discretion.  The danger here is selective enforcement.  Consider again the speeding example: what is racial profiling but selective enforcement against illegal but normatively acceptable driving behavior?

The same dynamic is at work with regard to property rights, as the recent lawsuits brought against Jammie Thomas and Joel Tennenbaum demonstrate.  At least among the young and computer-savvy, non-commercial file-sharing seems to be normatively acceptable, even though it is illegal.  According to the Electronic Freedom Foundation, one in five American Internet users is a file-sharer.  Ask the next class you teach for a show of honest hands, and you'll probably find that estimate accurate.

The predictable danger when there is is such a wide divergence between the legality and normative acceptability of behavior is selective enforcement.  Courts aren't good at avoiding being used as vehicles for selective enforcement.  In both the Thomas and Tennenbaumcases, Judges Davis and Gertner openly lamented their inability to prevent their institution from being so used.  Judge Davis in the Thomas case expressed serious misgivings about the unfairness of singling Thomas out for liability, stating that Thomas "acted like countless other Internet users.  Her alleged acts were illegal, but common."  Judge Davis recently slashed the damagesawarded against Thomas by 97%, from $1.92M to $54,000.  He clearly is intent on fighting back against the perceived unfairness of selective enforcement against illegal but normatively acceptable behavior.  But the RIAA isn't giving up, either; they have filed a motion for new trial on damages.

But even the RIAA must realize that it cannot hope to use the courts to selectively enforce against normatively acceptable behavior forever.  Usually, eventually, property rights catch up to notions of normative acceptability.

Mark Edwards

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Ordering the City Book Club at Prawfs

This week, PrawfsBlawg is hosting a book club on Nicole Garnett's great new book Ordering the City.  I'll post links as the contributions go up:

Ben Barros, Complexity and the City

Tracey Meares, Ordering the City

Chris Serkin, Ordering the City

Lee Fennell, Ordering the City

Steve Clowney, Order and the Poor

Michelle Wilde Anderson, Ordering the City

Nicole Stelle Garnett, Ordering the City, Redux

Michelle Wilde Anderson, The Purposes of Planning (the Good Kind): Ordering the City Part II

Ben Barros

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Understanding the Conflict Behind Stop The Beach

Today's NY Times Magazine has a fantastic story by Andrew Rice about the conflicts in Destin, Florida that led to the Stop The Beach Renourishment case now before the Supreme Court.  (We've blogged before about Stop The Beach Renourishment, especially here and here.)  I talked at some length with the reporter, and learned a lot from our conversation.  I learned even more from reading the article.  Great stuff.

Ben Barros

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Thanks, and Day Labor Markets

Thanks so much to Ben for the opportunity to blog here at PropertyProf, and for the kind welcome.  As Ben said, a large part of my research focus is on the evolving relationship between property rights and social standards.  I thought I'd start my blogging stint here by commenting on some fairly recent news stories that I think capture that dynamic (and, truth be told, that I write about in my latest article, which may or may not be accessible yet on SSRN).  

Many property rights scholars have recognized that property rights evolve with changes in normative sensibilities and economic incentives -- although which of those two is the primary driver of evolution has been a matter of considerable debate.  Today, changes in both normative sensibilities and economic incentives seem to be driving changes with regard to the right to make a particular use of public space -- day labor markets.  Every morning in cities large and small across the United States, men and women gather in hope of being hired for short-term labor projects, particularly in construction and landscaping.  The practice has existed for years, largely without controversy.  But recently things have changed.  In some places, ordinances have been enacted to restrict or prohibit the use of public space for day labor markets; in others, ordinances that have existed, but never been enforced against day labor markets, are being used to shut them down; in still others, neo-Nazis and other groups have gathered to disrupt the markets and drive away those participating in them.  The Town of Oyster Bay, New York, has gone so far as to prohibit people standing on sidewalks from making hand signals to passing vehicles.  Why?

I think we can posit at least two explanations, one economic and one normative, though the two are not entirely distinct.  The recession has increased the scarcity of a valuable (even critical) resource: work.  As competition has increased for that resource, competitors act to limit their rivals' access to it.  By limiting or destroying the right to use public space for day labor markets, other job applicants increase the cost of obtaining work for those laborers, and thus decrease the competition they face.  Note that this isn't necessarily the efficient result a Demsetz might have envisaged; rather, it may simply be the result of political leverage that allows the powerful to, in Stuart Banner's words, "grab a larger share of the pie."  Regardless, however, the incentive driving the change is economic.

But there is a normative explanation as well: the vast majority of the day laborers are Latino, and many are illegal immigrants.  Neo-nazis clearly aren't showing up to make trouble just because of economic incentives.  But even among the less extreme population, growing anti-immigration sentiment is undoubtedly a factor in the increasing normative disapproval of day labor markets in public spaces.  Those changes in normative sensibilities are driving changes in law and, consequently, property rights.

Mark Edwards

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Mark Edwards Guest Blogging

I'm delighted that Mark Edwards (William Mitchell) will be guest blogging with us.  Mark is doing some interesting work on social standards and property rights, and I'm looking forward to his posts.  Welcome!

Ben Barros

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Barros on Homestead and Other Legal Protections of the Home

I've posted a short encyclopedia entry called Homestead and Other Legal Protections of the Home on SSRN.  Here's the abstract:

In many legal contexts, homes are given more legal protection than other types of property. This additional protection can be divided into three categories. First, possessory rights in a home might be given more protection than possessory rights in another kind of property. For example, a legal system might make it more difficult for a creditor to force the sale a home to satisfy a debt than it would be for the creditor to force the sale of another type of property (say, a commercial office building) to satisfy that same debt. Second, a legal system might economically favor ownership or possession of a home over ownership or possession of another type of property. For example, ownership of a home might be subsidized where ownership of other types of property is not. Third, a home might be given special treatment when issues of privacy, freedom, or security are at stake. For example, a legal system might require the government to have a stronger justification for searching a home than is required for searching a commercial property.

This short encyclopedia entry focuses on the first category – those legal protections that give special protection to possessory rights in a home. It first elaborates on the distinction between rules favoring possession and the other two types of special legal protections given to homes. It then discusses various types of legal rules that give additional protection to possession of a home, including homestead rules favoring homeowners over creditors and tenure rules favoring renters over their landlords. Finally, it discusses theoretical issues related to the protection of possessory rights in homes, and considers open questions about whether this special protection is justified.

Ben Barros

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Teaching Real Estate Transactions

I am working on developing a 3 credit course in Real Estate Transactions for the fall semester at Wake Forest Law School.  I would love to hear from PropertyProfs who are already teaching such a class.

Here is the blurb that I have written about my new course:

Real Estate Transactions.  This course will provide a survey of the legal and business issues relating to the acquisition, development, leasing, and disposition of commercial real estate, with a focus on the issues arising in the development and ownership of large commercial developments such as shopping centers and office buildings.  This course will include a skills component and students will participate in negotiating and drafting a real estate contract (purchase agreement or lease) for a hypothetical client.

My thought is to spend some time going through the major legal and business issues in the acquisition of real estate, then split the class.  Half would represent the seller and half would represent the buyer in a hypothetical transaction.  We would do in-class negotiation (one on one or in pairs) and then draft components of the purchase agreement in teams.  They would go through several rounds of this in small groups and we would debrief as a class each day.  I've tried this kind of exercise in a legal writing/contract drafting class and it was very effective.

I would then go through the same pattern with a lease -- lecture on the main concepts and then have them negotiate and draft provisions.

Has anyone tried this kind of method before and can offer some thoughts?  Or have you tried another approach and found it to be successful?

As a textbook, I am thinking of using the ABA's Practical Guide to Commercial Real Estate Transactions, because I am familiar with that book.  I will also supplement with my own materials.  I know that there are other good books out there.  Any recommendations?

I would love to see sample syllabi, etc.  My e-mail is marshlaw at me.com.

Thanks!

Tanya Marsh

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Oliveri on Discriminatory Housing Advertisements On-Line

Rigel Christine Oliveri (Missouri) has posted Discriminatory Housing Advertisements On-Line: Lessons from Craigslist on SSRN.  Here's the abstract:

The Fair Housing Act makes it illegal to publish discriminatory housing advertisements. This has long been applied to newspapers, which have effectively screened all discriminatory housing ads from sight. However, in 1996 Congress created a loophole when it immunized website operators from liability for the content posted to their sites by third parties. Without publisher liability, websites have no incentive to screen out discriminatory housing ads. The result is that such ads are proliferating in cyberspace.

While this situation is problematic from a fair housing standpoint, it presents a valuable opportunity. For the first time in a generation discriminatory housing advertisements are out in the open and available for analysis. This article contains a comprehensive review of discriminatory housing ads appearing on the popular website craigslist, which yields a number of interesting findings, including: (1) The vast majority of those who post discriminatory on-line advertisements for housing are placed by people seeking roommates. (2) The overwhelming majority of problematic ads discriminate on the basis of familial status. There are very few that discriminate based on race, ethnicity, or religion. (3) The few roommate ads that do mention race, ethnicity, or religion are more likely to discriminate in favor of minority groups. Thus, they appear more as expressions of individual diversity of backgrounds and beliefs than exclusionary tools of a majoritarian power structure.

This information can and should inform changes to the legislative and enforcement regime for dealing with discriminatory housing advertisements. For example, we should recognize that the roommate relationship is different from traditional rental housing, and accord roommate-seekers protection from the law – protection which is currently given to small landlords (who arguably do not need it) but not co-lessees. Fair housing advocates also must address the unique problems presented by familial status as a protected category, both in terms of public awareness and acceptance of the law.

Ben Barros

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Roberts on Federally Granted Railroad Rights of Way

Darwin P. Roberts (U.S. Attorney's Office) has posted The Legal History of Federally Granted Railroad Rights of Way on SSRN.  Here's the abstract:

In the nineteenth century, the United States government granted railroads thousands of miles of rights of way across the public lands. If the railroads abandon those rights of way, federal law allows them to be reused for new purposes, particularly for recreational trails. This has raised a contentious question that has split the federal courts of appeals: did the federal government retain any interest in railroad rights of way granted after 1871‘ If not, its contemporary reuse of such property potentially makes it liable for millions of dollars in Fifth Amendment “takings” - as the Federal Circuit has recently held.

Beginning in 1850, Congress subsidized the construction of railroads by granting them both rights of way and millions of acres of the public lands. The Supreme Court has held that this type of “land grant” gave the railroads a “limited fee” interest in the right of way property, with a “right of reverter” in the United States if the right of way was later abandoned. In the late 1860s, though, the public came to vehemently oppose giving so much of the public domain away to railroads. As a consequence, federal land subsidy grants to railroads ended in 1871. The Supreme Court has held that because Congress no longer wished to “grant lands” to railroads after that year, Congress not only ceased granting subsidy lands, but also altered the nature of its rights of way, from granting limited fees to granting only easements. This concept of an 1871 shift in right of way law has defined this area of the law since 1942, when the Court first announced it.

This article contends, however, that the entire notion of an “1871 shift” in federal railroad right of way law is a fallacy, derived from the Supreme Court’s adoption of a faulty historical analysis advanced by the Solicitor General. The evidence actually indicates that throughout the nineteenth century, beginning in the 1830s, Congress followed consistent policies with respect to its railroad rights of way. Despite characterizing them as “easements” or similar to easements, it viewed them as property over which it retained continued ownership and control. Moreover, because Congress viewed railroad right of way grants as separate from its railroad land subsidy grants, it did not intend to change rights of way in 1871 when it ceased granting land subsidies to railroads.

The Solicitor General and the Supreme Court erred in 1942 by conflating the two types of grants, and misreading the relevant legislative history. If the Supreme Court has the opportunity to resolve the circuit split, it should overrule its erroneous prior reasoning, and affirm the United States’ broad and continuing authority over all federally granted railroad rights of way, from both before and after 1871.

Ben Barros

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Garnett on Order-Maintenance and Land Use Policy

Nicole Stelle Garnett (Notre Dame) has posted Order-Maintenance Agenda as Land Use Policy on SSRN.  Here's the abstract:

Debates about the broken windows hypothesis focus almost exclusively on whether the order-maintenance agenda represents wise criminal law policy — specifically on whether, when, and at what cost, order-maintenance policing techniques reduce serious crime. These questions are important, but incomplete. This Essay, which was solicited for a symposium on urban-development policy, considers potential benefits of order-maintenance policies other than crime-reduction, especially reducing the fear of crime. The Broken Windows essay itself urged that attention to disorder was important not just because disorder was a precursor to more serious crime, but also because disorder undermined residents’ sense of security. The later scholarly explications of the broken windows hypothesis also emphasize the connection between restoring the perception of security and its reality. One reason that social norms scholars link disorder and crime is that disorder has a predictable effect on law-abiding citizens: those with financial resources move away from, or choose not to move into, disorderly neighborhoods; those without resources remain inside and avoid public places. Even if these reactions (somewhat surprisingly) do not lead to more crime in a community, they certainly disadvantage city neighborhoods vis-à-vis their suburban alternatives. Moreover, and importantly, the goals of reducing crime and of helping poor, inner-city residents feel better about, and more vested in, their communities are not necessarily coterminous; order-maintenance policies might achieve the latter without achieving the former. In other words, it might be the case that order-maintenance policies “work” even if they do not curb serious crime.

Ben Barros

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Malloy on Mortgage Market Reform

Robin Paul Malloy (Syracuse) has posted Mortgage Market Reform and the Fallacy of Self-Correcting Markets on SSRN.  Here's the abstract:

The article discusses the mortgage market collapse in connection to the broader financial crisis. In developing the argument I proceed in several steps. First, I discuss the fallacy of self-correcting markets as a way of explaining the need for volitional and purposeful regulation in the housing and mortgage markets. This involves explaining that markets are not self-correcting; while Alan Greenspan and company waited for the invisible hand to appear and correct the mortgage markets, the system collapsed. Second, I provide an overview of the basic exchange relationships among the parties involved in the underlying real estate transaction, those in the primary and secondary mortgage market, and potential investors in mortgage related securities. Third, I explain the inapplicability of Hernado DeSoto's idea of parallel lives between underlying real estate transactions and the market for securities based on the mortgages in these underlying transactions. And, fourth, I suggest a series of regulatory and transactional reforms to consider for improving the soundness of the underlying real estate transaction and the operation of the primary mortgage markets. These reforms include: taking steps to reduce speculation in housing prices; eliminating incentives for over borrowing and over lending; and, adjusting the structure of the underlying real estate transaction to undermine an inverse prisoner’s dilemma problem. I also suggest that lawyers reassert themselves into doing basic real estate transactions and that real estate sales people and others be restricted to simply doing the sales work that they are trained to do.

Ben Barros

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The Stagnation of the Common Law of Property(?)

I just finished my seventh and final "property year in review" article for the Indiana Law Review.  Each year, I abstract and comment on "noteworthy" decisions in Indiana property law or new statutes.

Since this year is my last article, I decided to more broadly critique the state of the common law of property in Indiana.  After particularly discussing commercial leasing and commercial real estate transactions, I concluded that it is "stagnant."  The most recent decisions on many key issues date to the 1980s or even the 1880s.  The old cases are particularly frustrating because they invariably describe disputes over agricultural land and we try to apply them to much more sophisticated and complicated arrangements. 

I tried to sum up what I see as the fundamental problem in the following paragraph:

Although Indiana seems particularly resistant to change, or has been especially limited in its opportunities to effect change, the problem is not limited to this state.  More broadly, the stagnation of the common law of property results from a combination of factors.  Transactional attorneys view the litigation process as unworkable, particularly in the real estate context, for three key reasons: (1) the cost; (2) the length of time until resolution; and (3) the uncertain outcome.  If neither the common law nor statutory law provide easy answers to an issue, the parties are likely to conclude that they are better off resolving their differences out of court than spending time and money to achieve an unpredictable result.  This situation is a classic Catch-22 – the parties to real estate disputes refuse to bring their cases to the appellate courts in part because of the failure of the courts to modernize the common law of property, but the appellate courts have limited opportunities to modernize the law because of the failure of parties to modern disputes to allow their cases to be heard.

Without the benefit of the lovely examples I discuss in the article, what do you think?  Am I being overly harsh?  Is the common law of property actually vibrant, dynamic, and relevant? 

Tanya Marsh

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Mahoney on the Tension Between Positive and Negative Rights in Eminent Domain

Bran Frederick Mahoney, a student at George Mason, has posted The Greater Good or Property Rights? Resolving the Tension between Positive and Negative Rights in Eminent Domain on SSRN.  Here's the abstract:

This paper examines the background of takings law and differing philosophical viewpoints on individual rights. It then analyzes the balance of rights in the present use of eminent domain, and proposes solutions to current problems with eminent domain and the possible impact of these solutions on the balance of positive and negative rights.

Special attention is given to the status of blight and economic takings after Kelo v. City of New London, and what the jurisprudence in this area means for the balance of rights in the nation as a whole.

Ben Barros

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