Thursday, June 3, 2010

Lehavi on Property and Standards

Amnon Lehavi (Interdisciplinary Center Herzliyah - Radzyner School of Law) has posted The Dynamic Law of Property: Theorizing the Role of Legal Standards on SSRN.  Here's the abstract:

Property law is engaged in a constant conflict between stability and dynamism. As a field of law which delineates rights and duties to resources that apply in rem to large numbers of heterogonous parties, it is committed to ensuring stability and predictability. At the same time, even the most careful design of property norms cannot predict in advance all scenarios and legal contingencies, and must also address changes over time in values, socioeconomic environments, technological knowledge, etc. as affecting such norms.

One potential strategy to accommodate dynamism in law is by crafting norms as open-ended “standards” rather than as clear-cut “rules.” Contemporary scholarship has been dealing extensively with the rules/standards tradeoff by addressing both public promulgation of laws and various forms of private ordering, especially in contract law.

Property has, however, been generally left out of the rules versus standards literature, addressing only discrete issues such as the boundaries of a hard-edged right to exclude. This Article offers a first-of-its-kind systematic analysis of the ways in which legal standards operate in property. It identifies the unique manner in which the chief justifications for standards - i.e., inherent “incompleteness” of rights and enhancement of “value-based” jurisprudence - play out in constructing property law.

Cutting across conventional public/private distinctions by referring to various standards such as “custom,” “reasonableness,” “abuse of rights,” or “public use,” the Article argues that legal standards in property hinge prominently on the institutional mechanisms through which such norms are crafted and filled with content over time, and identifies the conditions under which property standards may outperform clear-cut rules.

Ben Barros

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

June 3, 2010 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Hester and Wright on The Evolution of Railroad Easements

Jeffrey Hester (William J. Tucker & Associates) and Danaya C. Wright (Florida) have posted Pipes, Wires, and Bicycles: Rails-to-Trails, Utility Licenses, and the Shifting Scope of Railroad Easements from the Nineteenth to the Twenty-First Centuries on SSRN.  Here's the abstract:

This article responds to a series of class action suits filed against railroads, telecommunication companies, and the federal government claiming that once railroads abandon their corridors, all property rights shift to adjacent landowners. This article reviews the state law on this matter and offers a theory of how courts should handle these cases. After discussing the history of nineteenth-century railroad land acquisition practices, it analyzes the scope of the easement limited for railroad purposes, then discusses the role of abandonment in affecting the rights of third party users of these corridors as well as successor trail owners. The article concludes with a theory of railroad easements that interprets the railroad's powers based on the public participation that helped create and establish these corridors and the tenuous claims of adjacent landowners.

Ben Barros

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

June 3, 2010 in Recent Scholarship, Servitudes | Permalink | Comments (2) | TrackBack (0)

Way on Informal Homeownership

Heather K. Way (Texas) has posted Informal Homeownership in the United States and the Law on SSRN.  Here's the abstract:

This article examines how millions of lower-income families in the United States attempt to acquire title to their homes informally, outside the mortgage market and instead through mechanisms such as lease-to-own contracts and intestacy. Many of these families are left holding inferior and insecure title to their homes--if they hold title at all. The article explores the benefits and pitfalls of "informal homeownership" and the legal structures that perpetuate disparties between formal and informal homeownership. The article then proposes a series of legal reforms to help ensure that the American legal system provides lower-income families with better opportunities to obtain secure title to their homes.

Ben Barros

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

June 3, 2010 in Home and Housing, Real Estate Finance, Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)