PropertyProf Blog

Happy Holidays

My blogging will be pretty light this week, as I'm home in Pittsburgh with the extended family.  I hope your holiday season is full of fun, family, and a warm drink (or two).  See you again after the new year.

Steve Clowney

(pic: HT the Daily Dish)

Outka on the Intersection of Land Use and Energy Policy

Uma Outka (Kansas) has posted The Energy-Land Use Nexus (Journal of Land Use & Envtl Law) on SSRN.  Here's the abstract:

This Symposium Essay explores the contours of the “energy-land use nexus” – the rich set of interrelationships between land use and energy production and consumption. This underexplored nexus encapsulates barriers and opportunities as the trajectory of U.S. energy policy tilts away from fossil fuels. The Essay argues that the energy-land use nexus provides a useful frame for approaching policy to minimize points of conflict between energy goals on the one hand and land conservation on the other.

Steve Clowney

Last Minute Holiday Gifts for Your Favorite Property Prof

If you need a gift for that special Property person in your life, I suggest A History of the World in 100 Objects.  Here's the publisher's description:

The history of humanity is a history of invention and innovation, as we have continually created new items to use, to admire, or to leave our mark on the world. In this original and thought-provoking book, Neil MacGregor, director of the British Museum, has selected one hundred man-made artifacts, each of which gives us an intimate glimpse of an unexpected turning point in human civilization. A History of the World in 100 Objects stretches back two million years and covers the globe. From the very first hand axe to the ubiquitous credit card, each item has a story to tell; together they relate the larger history of mankind-revealing who we are by looking at what we have made. Handsomely designed, with more than 150 color photographs throughout the text, A History of the World in 100 Objects is a gorgeous reading book and makes a great gift for anyone interested in history.

Steve Clowney

Map of the Day

China has a lot of people:

Steve Clowney

Making New York Denser

Matt Yglesias pushes to "up zone" Manhatten:

[A]t a minimum if there are vacant lots or teardown candidates anywhere in Manhattan (and yes, these exist) or along subway lines it would be very much in the interests of the city and the country as a whole to build on them as densely as the market will bear. This is much greener than having the suburbs expand further, and besides which we should be allowing as many people as possible to get access to the great cities of the world.

Steve Clowney

All the Holiday Reading You Need About Cities

Here's a list of 2011's best long-form journalism about cities, urban development, and land use.  The list covers everything from the rise of apartment living in New York to the tale of a state-assigned emergency manager trying to save Benton Harbor, Michigan.

Steve Clowney

Alexander on Pluralism and Property

Gregory Alexander (Cornell) has posted Pluralism and Property (Fordham Law Review) on SSRN.  Here's the abstract:

Welfarism is no longer the only game in the town of property theory.1 In the last several years a number of property scholars have begun developing various versions of a general vision of property and ownership that, although consistent with welfarism in some respects, purports to provide an alternative to the still-dominant welfarist account. This alternative proceeds under different labels, including “virtue theory” and “progressive,” but for convenience purposes let us call them collectively “social obligation” theories. For what they have in common is a desire to correct the common but mistaken notion that ownership is solely about rights. These scholars emphasize the social obligations that are inherent in ownership, and they seek to develop a non-welfarist theory grounding those inherent social obligations.

These social obligation theories have attracted no shortage of critics.2 No critic, however, has raised an ambiguity that characterizes most, if not all, of the work in this vein. Although social obligation theorists have been clear about their commitment to the idea that ownership imposes affirmative as well as negative duties to other members of their communities, they have not always been clear about the normative basis or bases of those duties. More specifically, they have not always indicated whether their theory is value monist or value pluralist; that is, whether it rests on a commitment to a single overriding moral value or multiple moral values. Of course, this is a fundamental question not only for social obligation theorists but also all property scholars engaged in projects of developing general normative theories of property, including welfare theorists.3 Whether they believe that a single value guides, and should guide, all of property law or that no single view of the good either can or should underlie all of property law’s contextual and doctrinal diversity, property theorists must explicitly acknowledge and explain their position on this basic question.4

This paper has two objectives. The first is to clarify the positions on the monism-pluralism question among social obligation property theorists. Because so few theorists have explicitly confronted that question, I try to tease out their positions from their normative work, recognizing full well that this approach risks attributing views that the author does not hold at all. My second objective is normative. I argue, albeit briefly, in favor of value pluralism as the morally superior approach, one that is both analytically and normatively more defensible.

The discussion proceeds as follows. Part I provides a brief explanation of the terms monism and pluralism as they are used in modern value theory. Part II sets forth a taxonomy of various social obligation property theorists’ views on the monist versus pluralist approach to values. Part III then takes a normative turn, arguing in support of value pluralism generally and how my social obligation theory specifically conforms to such an approach. It also discusses the problem of incommensurability that arises under value pluralism. I argue that the incommensurability of competing values does not warrant the conclusion that no rational choice between them is possible. Rational choice is possible, but this does not mean that only one rational solution is always possible. An unavoidable, and perhaps tragic, consequence of pluralism is that in cases in which two or more incommensurable values are involved, there will sometimes be situations in which more than one rational choice is available. There is not always a single correct answer. But that does not mean that no rational solution is possible. Such is the human condition.

The value monism versus value pluralism problem is not unique to property theory. This paper could have been written just as easily about contract or tort theory as well as other topics of legal theory. Property theory happens to be the domain that I know best. Scholars in other fields may find this paper useful for their own purposes. If so, they may wish to skip Part II, which deals specifically with property scholarship.

Steve Clowney

60 Minutes Loves a Good Property Story

On Sunday, 60 minutes ran a piece on the foreclosure crises and the plague of abandoned homes in Cleveland, Ohio.  It details how abandoned homes bring down property values throughout a neighborhood and describes what Cleveland is doing to fight the downward spiral.

 

Steve Clowney

Menell & Meurer on the Importance of Notice

Peter Menell (Berkeley) and Michael Meurer (Boston U.) have posted Notice Failure and Notice Externalities on SSRN.  Here's the abstract:

Economic theory suggests that notice plays a critical role in resource development. Resource developers will be disinclined to make significant investments without reasonable confidence that their projects will not violate the rights of others. Land rights systems and institutions generally provide reliable notice at relatively modest cost, enabling exclusionary rights to encourage efficient real estate development. Property boundaries, right structures, and neighbors with whom resource developers might have to negotiate conflicts can usually be ascertained relatively easily. Furthermore, zoning institutions generally provide relatively prompt, low cost, and reliable dispute resolution before developers need to expend substantial resources. Therefore, land claims do not usually impose substantial external costs upon developers.

Effective notice is a far greater challenge when the resources in question are intangible. Such resources can be difficult to navigate because of the amorphous nature of intangible boundaries, the difficulty of determining whether an intangible resource is already “owned” (unlike tangible assets, the non-rivalrous nature of intangibles means that multiple developers can possess them simultaneously without affecting others’ use of the resource), and the complex rights associated with intangibles (e.g., patent’s doctrine of equivalents; copyright’s fair use doctrine).

The emergence of intangible resources such as intellectual property illuminates a previously unrecognized market failure: what we call a “notice externality.” The incentives of those claiming intellectual property diverge from the social interest. Notice information is a public good. Private parties tend to under-provide public goods because they do not appropriate the full value of their investments. Moreover, inventors and creators can sometimes benefit from obfuscating the scope of rights and keeping others in the dark about their intellectual property. This article explores the principal causes of notice failure in the development of intangible resources and offers a multi-faceted framework for diagnosing the causes of notice failure and preventing, internalizing, and ameliorating adverse effects.

Steve Clowney

Is Property Still a Local Institution?

The New York Times runs an important story on the increasing tension between states and local governments over control of shale gas drilling:

The battle is playing out in Pennsylvania as the Republican-controlled legislature considers bills that would in their current form sharply limit a community’s right to control where gas companies can operate on private property. Critics say the final bill could vastly weaken local zoning powers and give industry the upper hand in exchange for a new tax, which municipalities badly need.

Steve Clowney

Davidson on Pro-Development Norms in Property Law

Nestor Davidson (Fordham) has posted Sketches for a Hamiltonian Vernacular as a Social Function of Property (Fordham Law Review) on SSRN.  Here's the abstract:

This symposium article examines the intersection between Léon Duguit’s concept of the social function of property, predicated on an affirmative duty on owners to put their property to productive use for the sake of social solidarity, and a tradition in the property law of the United States that similarly reflected this kind of pro-development norm. The article associates the impulse to associate ownership with a productivity oriented social function with certain Hamiltonian themes at the founding and in the early nineteenth-century salus populi tradition, and argues that the imperative remains a background norm in the United States that contrasts with classical liberal absolutism and certain strains of civic republican property norms.

Steve Clowney

Death of Vaclav Havel

Vaclav Havel died today.  He was a great champion of freedom and truth, carried by his unwavering commitment to both into a world he did not want but would not abandon. 

Havel, despite his quiet and awkwardness, had an enormous impact on the late 20th century, and if we are fortunate, his writings will influence the course of future centuries as well.  He saw, before others, that the so-called powerless in society in fact had the power to control their fates.  He saw that very simple acts of commitment to principle were revolutionary, that each one threatened the most entrenched and overwhelming political systems, and that eventually those systems would break.  He suffered enormously for saying those things out loud, first by being sentenced to prison, later by being thrust into the presidential castle.  He didn't belong in either place, but his commitment to principle made those sacrifices unavoidable.  Both probably hastened his death, but especially his five years in prison, some of it performing hard labor with untreated pneumonia.  Incidentally, he did that for us.

Havel wrote about the role of property in society, and in the next few days I'll write more about that.  Today is just a day for mourning and admiration.  

Mark A. Edwards

Friday's Architecture Moment

The Top Ten Design Trends of 2011. 

Steve Clowney

Munzer on the Bundle of Sticks

Stephen Munzer (UCLA) has posted A Bundle Theorist Holds On to His Collection of Sticks (Econ J. Watch) on SSRN:

For nearly a century, most persons who have studied or written about property have conceived of it as a bundle of rights or, colloquially, as a bundle of sticks. In the mid 1990s, several philosophically minded academic lawyers questioned whether property should be thought of as a bundle at all. The impact of their work is reflected in Merrill and Smith (2007), a highly regarded and intellectually challenging casebook used in many U.S. law schools. Merrill and Smith emphasize that property is centrally a right to exclude and is generally held in rem, that is, is good against all the world. They find bundle theories of property defective for various reasons. This essay argues to the contrary. There are solid grounds for holding on to at least some bundle theories, which facilitate the careful analysis of the complexity of property. Moreover, Merrill and Smith’s criticisms are often misguided or ineffective. Lastly, their account gives an overly simple picture of property and views property law as a more unified subject than it actually is.

Steve Clowney

A Rose is a Rose is a RLUIPA

Ken Stahl takes Congress to task for sticking property profs with a really terrible acronym.  

Steve Clowney

p.s. It's clearly Rah-loopa.

Nevada Gets Tough on Foreclosures

The LA Times reports that the number of Nevada properties that entered foreclosure fell by 75% in October, even as the rate climbed elsewhere in in the country.

That news, though, did not result from a reversal of fortune in the Nevada housing market. It was spawned by a new Nevada law that plays hardball with companies doing the foreclosing.  Assembly Bill 284, which took effect in October, requires those foreclosing on a home to file an affidavit proving they have the right to bring the action — and it increases civil and criminal penalties for using fraudulent documents in a foreclosure.

Steve Clowney

How Much Would You Pay for John Updike's Home?

Would you pay a premium to buy the home of a famous writer?  Slate looks at some numbers.

Steve Clowney

Is Smart Growth a Conspiracy of the World Government?

Some guys from the Heritage Foundation read the tea leaves:

Radical environmentalists, local business groups, and the ever-present Not in My Backyard crowd have been trying for decades to reshape American communities to conform to their preferred “smart growth” policies. These advocates work to impose land use regulations that would force Americans into denser living arrangements, curtail freedom of choice in housing, discriminate against lower-income Americans, and compel people to pay more for their houses and give up their cars in favor of subways, trolleys, buses, and bicycles.

A rebuttal here.

Steve Clowney

The Suburbs as Market Triumph

I like any discussion of land use issues in my hometown paper, but this piece from the Pittsburgh Post-Gazette seems like a pretty weak defense of the suburbs:

Suburban life is attractive to many Americans for its particular subjective experiences. These differ from other living experiences, including those offered by urban lifestyles. So suburban living is not about housing densities . . . . Nor is it a matter of walking more: People walk, jog, and bicycle in suburbs. They just don't walk or bike to work very much. Suburban living is a matter of choice. Among many choices, really, since there are numerous distinct urban and suburban residential environments in every American metropolitan area.

Yes, it's possible that the suburbs have succeeded because people prefer the suburban "living experience" over the alternatives.  Yet, it seems dishonest not to acknowledge the high price of residential units in urban areas (driven by overly agressive growth controls) might be driving a lot of the popularity of areas outside of the city center.  If New York or Boston or San Fransisco allowed more construction, more people would move there over the suburbs. 

Steve Clowney

(Photo: Hong Kong - the city with the most tall buildings in the world, by flickr user bsterling)

Brennan on Australian Constitutional Reform and its Relationship to Land Justice

Sean Brennan (New South Wales) has posted Constitutional Reform and its Relationship to Land Justice (Land, RIghts, Laws: Issues of Native Title) on SSRN.  Here's the abstract:

A referendum recognising Australia's indigenous peoples in the Constitution will be held in 2013. While many key legal settings for native title are already in place in Australia, recent history tells us that important legislative and judicial choices about Indigenous land justice will continue to be made in coming years and that constitutional arrangements will exert a significant shaping influence on the outcome. A range of viable proposals for constitutional reform are presently under consideration for the 2013 referendum which could materially affect the future pursuit of land justice for first peoples in Australia. These include, in particular, a non-discrimination clause with respect to race, which allows for positive Indigenous-specific laws, including ones enacted under a revised power in section 51(xxvi) of the Constitution, and a constitutional provision to support agreement-making between governments and Aboriginal and Torres Strait Islander people.

Steve Clowney