PropertyProf Blog

Yoo on the Emerging Technologies and Property Theory

Christopher Yoo (Penn) has posted Beyond Coase: Emerging Technologies and Property Theory (Penn) on SSRN.  Here's the abstract:

In addition to prompting the development of the Coase Theorem, Ronald Coase’s landmark 1959 article on The Federal Communications Commission touched off a revolution in spectrum policy. Although one of Coase’s proposed reforms (that spectrum should be allocated through markets) has now become the conventional wisdom, his other principal recommendation (that governments stop dedicating portions of the spectrum to particular uses) has yet to be fully embraced. Drawing on spectrum as well as Internet traffic and electric power as examples, this Article argues that emerging technologies often reflect qualities that make defining property rights particularly difficult. These include the cumulative nature of interference, the presence of significant interdependencies, and the presence of significant geographic discontinuities in interference patterns, exacerbated by the localized nature of information. These technological considerations define the natural boundaries of property by creating transaction-free zones that must be encompassed within a single parcel. They also complicate defining property rights by making it difficult to identify and attribute harm to particular sources of interference. These challenges can make governance a more attractive solution than exclusion.

Other commentators have suggested that the failure of creating well-defined property rights in spectrum support wider use of open access regimes, citing the work of Elinor Ostrom and Michael Heller, or arguing that spectrum is not scarce. Ostrom’s work points out that governance of common property requires features that are quite inconsistent with open access, including a finely tailored and unequal allocation mechanism, strict internal monitoring, strong property protection to prevent outside interference, stability, and homogeneity. Heller’s theory of the anticommons is sometimes misinterpreted as being hostile towards property. Instead, it is better understood as condemning giving exclusionary rights in the same piece of property to multiple owners, all of whom must agree on any major decision. The primary solution to the anticommons is not open access, but rather unitization of the interests in a single owner. Moreover, bargaining over an anticommons is also properly modeled through the chicken (or snowdrift) game, which has more of a zero-sum, all-or-nothing quality, rather than opportunities for cooperation frustrated by a lack of trust that characterize the prisoner’s dilemma and traditional holdout behavior. The final argument, that spectrum is not scarce, simply cannot be squared with Shannon’s Law.

Instead the solution may lie in reconfiguring rights to increase owners’ ability to bargain towards workable solutions. A market maker controlling sufficient property and able to integrate local information could design a mechanism that can solve some of these problems. Property could also be reconfigured to provide more of the primitives needed to write effective contracts. Finally, these challenges, as well as the need to reduce information costs on third parties, provide an explanation for the persistence of use restrictions. In addition, continuing the fiction of government ownership of the spectrum may make it easier to reconfigure rights when necessary.

Steve Clowney

Fines for Agents Who Show Illegal Apartments

The N.Y. Times reports on a local initiative:

The Department of Buildings has begun issuing fines to agents and brokers who advertise and show illegal apartments for rent, a new step in a long battle that has traditionally taken on owners of illegal dwellings. The fines, which have been issued to the agents and the companies they work for, begin at $3,600 and can go up to five times that amount.

From January to March [...] The department issued fines to 10 agents, including agents at Douglas Elliman and Halstead Property, for listing apartments in a variety of neighborhoods and boroughs, including Park Slope and Brighton Beach in Brooklyn, and Hamilton Heights in Upper Manhattan. All of the apartments were in the basement or the cellar, and most did not have the required two means of egress, the department said. The department says the building code gives it the right to issue fines to agents; in the future, it may go after brokers who supervise the agents as well.

Steve Clowney

Ten Buildings That Changed American Architecture

In the PBS special 10 Buildings that Changed America, two architecture gurus discuss the origins of some of the country’s most important buildings.

The hour-long program, which premiered this week take a look at thestories and engineering behind 10 influential American buildings that "changed the way we live, work, and play, and inspired future architecture and construction. It also explores the imagination of the architects that created the structures."

Here's a slideshow of the buildings.

Steve Clowney

Godsil and Simunovich on the Mortgage Crisis and the Ethic of Homeownership

Rachel Godsil (Seton Hall) and David Simunovich (Seton Hall) have posted Protecting Status: The Mortgage Crisis, Eminent Domain, and the Ethic of Homeownership (Fordham) on SSRN.  Here's the abstract:

Homeownership is in crisis. Millions of families are at risk of foreclosure as they are caught between declining housing values and rising interest payments on adjustable-rate mortgages. The primary concern for such families is not that they will become homeless - most families who lose their homes could afford to become renters - but rather that they will lose their status as homeowners. For families required to sell their property by the government's use of eminent domain, a similar issue arises, as the 'fair market value' of some homes (the standard measure of compensation) is generally not enough to allow the family to purchase another home. The harm of losing one's status as homeowner has afar-reaching impact at both the individual and collective levels. Property ownership ties one to the larger community in myriad ways. As compared to renters, homeowners - even those with the same income, education, and other socioeconomic characteristics - tend to be more civically active and more apt to engage in market transactions linked to their homes. Losing this link to the larger market and community will harm a family's long-term prospects. When many families lose these connections, whole communities suffer.

The link between the mortgage crisis and the full-scale financial meltdown has led to bipartisan support for a degree of government intervention unseen since the Great Depression. In this Article, we explore why homeownership is so highly valued-and whether the loss of homeownership status should impel government action. We conclude that this loss does warrant government intervention - but also argue that the myopic focus on homeownership absent an adequate regulatory regime and a broader economic agenda has had dire effects. The families caught by the subprime mortgage debacle were often targeted by predatory lenders because of their membership in vulnerable groups. The government's failure to prevent this exploitative behavior then requires its intervention now. However, it is crucial to ensure that government intervention does not create insurmountable barriers to entry for aspiring homeowners or moral hazard. Accordingly, our status-preservationist approach would protect only those who would have received loans had sound lending practices been utilized and would counsel against the view that homeownership alone is adequate to ensure healthy communities. Rather, homeownership has in the past been linked to behaviors that create sound communities. In the context of eminent domain, the argument for status preservation is even stronger, as it is justified by the U.S. Supreme Court's maxim that compensation should be based on fair market value unless doing so 'would result in manifest injustice to owner or public.' We conclude by considering the broader implications of the economic meltdown and reflect on whether it has so permanently altered our conception of homeownership that homeowner status is in the process of losing its value.

Steve Clowney

Important Nuisance Case in Maryland

From Joe Singer's blog:

The Maryland Court of Appeals ruled in Exxon Mobil Corp. v. Albright, — A.3d —, 2013 WL 673738 (Md. 2013) that property owners near a gas station where 26,000 gallons of gasoline spilled from an underground tank could not sue for nuisance when their wells have not yet been contaminated. The neighbors were not allowed to sue for emotional damages, for reduction of the fair market value of their property or for future costs of medical monitoring. Most courts reach the same result although a few courts have allowed damages in such cases for nearby properties when the reduction in fair market value is substantial.

Steve Clowney

Building Implosion Fail

Oops.

Steve Clowney

Varadarajan on Improvement Doctrines

Deepa Varadarajan (St. John's) has posted Improvement Doctrines (George Mason) on SSRN.  Here's the abstract:

When one party makes significant but unauthorized improvements to another's land, chattels or informational assets, should the "improving" nature of the act alter the liability or remedy calculus? Traditional property law has long had to resolve conflicts that arise when one person improves another's land or chattels without permission -- for example, if A cuts down B's trees and fashions a chair, or A erects a building on B's land. Ordinarily, A would be liable and subject to an injunction because B has a strict right to exclude that is protected by a property rule. But various doctrines in traditional property law, like the doctrines of accession, mistaken improvers of land, and ameliorative waste, make exceptions for improvers. These doctrines either excuse the improver from liability entirely or mandate a remedy more hospitable to the improver. I call these assorted rules "improvement doctrines" and articulate a multi-part framework for understanding the equity and efficiency concerns animating them. In so doing, I challenge the (increasingly contested) presumption that property law unwaveringly favors strict exclusive rights for owners -- a presumption that is often invoked by those advocating strict exclusive rights for intellectual property owners. 

This Article demonstrates that unlike property law, intellectual property law has been less receptive to improvement doctrines. This is particularly surprising given intellectual property's normative commitment to progress and innovation. Patented inventions and copyrighted expressive works necessarily build on what came before. While patent law's “reverse doctrine of equivalents” and copyright's “fair use” doctrine may provide incidental relief for unauthorized improvers in certain cases, these intellectual property doctrines are often indifferent to improvement. Given the uncertainty of intellectual property boundaries and the societal consequences of deterring improvement, I argue that the concerns motivating traditional property's improvement doctrines apply with even greater force to intellectual property. Accordingly, I suggest potential areas of reform in patent and copyright law to enhance and regularize judicial consideration of unauthorized improvement at the liability and remedies stages.

Steve Clowney

The NY Times Interviews Land Use Lawyer

In the paper's Real Estate section, Vivian Marino sits down for an interview with land use lawyer Melanie Meyers, a partner at Fried Frank who represents several large developers. A sample:

Q. Let’s talk about some of your projects, starting with Hudson Yards on the Far West Side.

A. We represent the Related Companies on the western rail yards, and our firm as a whole represented Related from the beginning to the end.

We represented them on the original designation. What they are acquiring or will be acquiring at that time were two very large properties, some of which hadn’t been zoned yet. They were planning on doing about eight million square feet, primarily residential development, on a site that was zoned for a quarter of that and only for manufacturing and commercial uses. We created an entire section of the zoning resolution that would allow for the property to be rezoned and to be developed.

Steve Clowney

Top 10 Best Cities To Move To Today

The Onion takes on "best cities" lists to hilarious effect.

Steve Clowney

Stern on State Legislative Checks and Judicial Takings

Stephanie Stern (Chicago-Kent) has posted Protecting Property Through Politics: State Legislative Checks and Judicial Takings (Minnesota) on SSRN.  Here's the abstract:

In the 2010 Supreme Court case Stop the Beach Renourishment v. Florida Department of Environmental Protection, a plurality of the Court launched judicial takings in political and scholarly debate and laid the groundwork for expanding the Fifth Amendment to encompass court decisions. This Article explores a neglected institution in the debate over judicial takings — state legislatures. In the comparatively rare instances when state courts overreach, state legislatures can revise state court decisions and restore private property rights. Through case studies of state legislative checks of judicial activism, I examine the comparative institutional advantages, and the potential gaps, of situating primary responsibility for state court revision in state legislatures. In view of takings federalism and the costs of judicial takings, I contend that the existing balance of state legislative checks and state court restraint works well enough to police against state court property activism.

Steve Clowney

Tsarnaev Burial Saga Highlights Flaw in the Law of Human Remains

The Worcester (Massachusetts) Police Department reports that Tamerlan Tsarnaev’s body was buried in an undisclosed location in the middle of the night this week, bringing an end to a sad, unprecedented soap opera.   This controversy has been resolved – but what happens next time?  The Tsarnaev burial saga highlights a fundamental flaw in the American law regarding the disposition of human remains. 

Despite the calls of protestors to “feed [Tsarnaev] to the sharks” or “toss him in the landfill,” it is a basic premise of American law that we treat human remains with respect.  In fact, it is a general principal of law that every person who dies in the United States is entitled to the decent treatment and disposition of their remains.  “Abuse of a corpse” is a crime in many states.  A number of state even have statutes forbidding cursing in the presence of a corpse.

But while the law promises that remains will be treated with respect, the government has very little power to enforce that promise.

Continue reading

Awesome Pictures of Places You've Never Heard of But Want to Go

 

Extremely cool pictures of weird (but real) places.

Steve Clowney

 

Homeownership Kills Jobs

The Washington Post reports:

The idea that owning a home makes it harder to find a job because of higher moving costs is now known as “Oswald’s hypothesis.” And it’s come in for plenty of scrutiny. Some economists, for instance, have argued that this effect might be counterbalanced by the fact that people who own homes have denser local networks, which makes it easier for them to find jobs in their local area.

Now, however, Andrew Oswald and Dartmouth’s David G. Blanchflower have a brand new working paper (pdf) suggesting that homeownership has an even bigger and wider effect on unemployment than anyone has realized. [...]

The authors find that higher levels of homeownership in a state appear to be associated with lower levels of labor mobility, higher commute times, and fewer new businesses created. Taken together, those three factors tend to increase the unemployment rate. (Why fewer new businesses? One possibility is that homeowners are more likely to use zoning to restrict the activities of firms, though that’s just a hypothesis.)

Steve Clowney

Writing Competition for Property Students

From friend of the blog, Tim Mulvaney:

The Texas Wesleyan Journal of Real Property Law (Property Journal) is holding a national writing competition for all law students on any topic falling into the general theme of real property law. This is a great opportunity for students on law reviews and journals whose note or comment may not have made the final publication cuts, and students who have written excellent papers for a seminar class or independent study. There are cash prizes as well as an opportunity to publish in the Property Journal. For more information, please see http://www.realpropertyjournal.org/Home/national-writing-contest. The submission deadline is June 1, 2013.

Steve Clowney

Map of the Day: Everybody Lives in Asia

Matt Yglesias makes a prediction:

So now that all the countries inside the circle are politically independent and only a handful of them are still governed by totally insane ideologies, we should expect most of the action to happen where most of the people are. That means most of the manufacturing, but also most of the innovation and most of the popular culture. Both the producers and consumers of everything live over there. Bad government inside the circle can stall the catch-up process, but outsiders can't force Asian countries to be poorly governed.

Steve Clowney

Pimentel on Forfeiture Law

David Pimentel (Ohio Northern) has posted Forfeitures Revisited: Bringing Principle to Practice in Federal Court (Nevada Law Review) on SSRN.  Here's the abstract:

Dramatically expanded use of federal forfeitures since the 1980s has raised persistent concerns about government overreaching in the seizure of private property. The Supreme Court failed to address the problem in Bennis v. Michigan (1996), upholding the forfeiture of property of an entirely innocent owner, relying on the ancient and unconvincing principle that the property itself is guilty. Congress stepped in to curb law enforcement’s worst abuses of this lucrative practice in 2000, but the Civil Asset Forfeiture Reform Act was a patchwork effort that tweaked the rules without revisiting the unsatisfying policies behind them. Thus a comprehensive, policy-based re-examination of forfeiture doctrines is overdue. This re-examination reveals three distinct and dissimilar categories of forfeitures — (1) contraband, (2) proceeds of crime, and (3) property used to facilitate crime — which are lumped together into a one-size-fits-all procedure. Because each of these types of forfeitures is based on distinct policy objectives, and because each poses different risks to the legitimate interests of property owners, separate procedures are required for each. Contraband forfeitures, which protect public health and welfare, can be effected on probable cause alone. Proceeds forfeitures, which effect a nonpunitive deterrence under the principle of unjust enrichment, raise factual questions that require stronger procedural safeguards and a higher burden of proof. Facilitating property forfeitures, which give rise to the worst abuses of the procedure, and which serve the most dubious of policy objectives, are difficult to justify under any procedure. A clearer articulation and understanding of the policy behind each type of forfeiture will set the stage for a more comprehensive and coherent reform. In the meantime, it can help courts to interpret and apply existing standards — including Eighth Amendment excessive fines analysis — in a more principled way. A policy-based approach, under a new taxonomy of forfeitures, is essential to address the persistent problems with federal forfeiture procedure and bring coherence and equity to the practice in federal court.

Steve Clowney

Where Is Jay Gatsby’s Mansion?

Slate goes looking for West Egg.

Steve Clowney

Is Our Sense of Fairness Hard-Wired?

Or ... how I felt after the last round of raises were announced at Kentucky. 

Steve Clowney

(HT: Greg Mankiw)

What Happens to the Body of Tamerlan Tsarnaev

Property Prof's very own Tanya Marsh has a great piece on the Huffington Post about the law surrounding the disposition of the body of Tamerlan Tsarnaev (the Boston Marathon bomber who died in a firefight with police).  The whole piece is fascinating.  Here's a taste:

The Worcester, Massachusetts funeral director with possession of Boston Marathon bombing suspect Tamerlan Tsarnaev has reported that cemeteries in multiple states have refused to permit burial of his body.

This situation raises several important questions regarding the disposition of human remains. After a person dies, we clearly need to make decisions regarding final disposition, for public health reasons as well as closure for the family and community. But what happens when the remains are those of a person believed to have committed a horrific, recent crime?

The answer to the legal questions depends in large part on what state hosts the remains. There is very little federal law on this subject. In this case, Tsarnaev died in Massachusetts and his body is apparently currently located in Massachusetts, so that state's law is most relevant.

Like most states, Massachusetts law provides that "every dead body of a human being dying within the commonwealth ... shall be decently buried, entombed in a mausoleum, vault or tomb or cremated within a reasonable time after death." (M.G.L.A. 114 § 43M) The person having custody of the remains is charged with carrying out this obligation. In Tsarnaev's case, his uncle appears to have taken responsibility for his remains after Tsarnaev's wife refused.

Although the law requires that bodies be decently disposed of within a "reasonable" time after death, it does not provide clear answers about how to accomplish that. For example, no Massachusetts statute requires a cemetery to accept a body for burial. In 2003, in LaCava v. Lucander, the Appeals Court of Massachusetts held that there is no fundamental right to be buried in the cemetery of one's choosing. In that case, a man who had been convicted of killing his wife asked to be buried in the same Westminster, Massachusetts town cemetery where his wife rested. The cemetery commission denied his request, but offered him a plot in another town cemetery.

Steve Clowney

Another State Adopts the Uniform Partition of Heirs' Property Act

Montana has become the third state to enact the Uniform Partition of Heirs' Property Act (the others are Nevada and Georgia).

"Heirs' property" typically refers to land passed down through generations without a will and owned by descendants as tenants in common. The trouble with these arrangements is that anyone who purchases even the smallest fractional interest from one owner can file a partition action with a court and force a sale of the property.  These sales often happen against the explicit wishes of many of the family members who have ownership shares in the property.  Family members may end up forced off land where they have lived for generations and, all too often, the mandated sales fail to secure fair market value for the property. 

The Uniform Partition of Heirs’ Property Act seeks to create a number of protections for owners of heirs’ property. Under the Act, "the court appoints a disinterested real estate appraiser to assess the fair market value of the property, unless all the cotenants agree to a different valuation method, agree on the value of the property, or the court determines that the cost of the appraisal will outweigh its evidentiary value. The Act provides the procedural timeline for determining the fair market value.  After the court determines the value of the property, the Act provides all of the cotenants who did not request partition by sale with a right to buy out all of the interests of those who have done so, at a price equal to the court-determined value of the property multiplied by the fractional interest of the cotenant that is bought out.  If the buy-out does not resolve the matter, the Act provides courts with a clear set of protocols and considerations for determining whether and how to proceed with partition in kind or by sale for this important subset of property." 

A warm congratulations to property professor Thomas Mitchell of the University of Wisconsin Law School, who served as primary drafter of the act.

Steve Clowney