Thursday, February 4, 2016
My law professor husband and I spent the better part of Thursday evening trying to get our daughter a shoe. It’s not that we don’t have shoes. We have every shoe a seven-year-old girl could want: school shoes, soccer shoes, cowgirl boots, ballet flats that make us think we look like a grown up, rain boots with princesses on them, rain boots without princesses on them, shoes that have Elsa on them, and because, as you may recall, it snows so often in New Orleans, we have two pairs of snow boots. We have shoes.
But tonight we wanted a very particular shoe: a Muses shoe. The Muses parade which rolls the Thursday before Mardi Gras has a very special throw, hand-decorated shoes. They are glittery and sparkly and very hard to get. The Muses Krewe claims to have 1,000 riding members. My friends who are in the Krewe say they make about 30 shoes every year. Assuming every rider made 30 shoes, there would be 30,000 shoes thrown (which seems like an over-estimate to me, but we’ll use it for our purposes here). CNN reported a few years ago that an estimated 1.4 million attend Mardi Gras every year. That entire group certainly is not watching the Muses parade, but even if half of Mardi Gras goers are watching this very well-attended parade, that’s 700,000 people. With 30,000 shoes, only 4 percent of those attending the Muses parade can get a shoe. Take into account the fact that about half of the shoes are predestined for a particular individual, the actual odds of catching a random shoe are even lower.
Despite knowing that we were very unlikely to catch a shoe, we braved the crowds, the 45 degrees weather, and the staying up past our bedtime, and gave it our best shot.
We came home empty footed.
The Muses’ shoes, like the purses thrown during the Nyx parade or the coconuts thrown during the Zulu parade, are interesting forms of property because of how we value them. Most people would not pay for these items, or at least would not pay more than $10 for them. They are not usable for anything but decorations, and even then, it takes a very particular decorative style to weave in a glittery shoe, sparkly purse, and painted coconut. But even though the average individual would not pay for a Muses shoe, I can attest that thousands and thousands of people were out on Thursday night, elbowing their way through the crowd with the hopes of catching one shiny high heel. More than a few people quite obviously highly valued these shoes.
Valuing property is always complex and contentious. You needn’t look any further than Susette Kelo to know that. But valuing property is an important aspect of the law. We value property for purposes of determining what is just compensation. We assign values to property during appraisals. We value personal property during bankruptcy. In divorce, we value marital property to insure equitable divisions. We value estates at death. The law constantly places a value in terms of dollars and cents on property.
My experience on Thursday night with the Muses shoe gave me three take aways about valuing property:
- The laws of supply and demand are real. When the quantity supplied falls, the price rises. With at most 30,000 shoes to be distributed among more than 20x that many people, the price of the Muses shoe skyrocketed. That’s true with all property—land, food, automobiles, books . . . the less there is, the more it costs.
- Scarcity sometimes trumps reason. The Muses shoes are sought because they are special. They are special because they are scarce. It is arguably irrational that two law professors would be fighting their way through a crowd to get a shoe that will do nothing by bring glitter into our house. (Glitter, mind you, that we will be unable to get rid of for months.) But the shoes are scarce and therefore they are special and we want special things so we keep up the fight for the shoes even though our desire for the shoes is, from a purely rational standpoint, unreasonable.
- There are things that are worth our time, but not our money. Of course, going after the shoes is not unreasonable once you factor in that there is an experience involved—the experience of taking your child to this uniquely New Orleans tradition and, if you catch one, having bragging rights for years. The whole experience was a blast, despite not catching a shoe. I wouldn’t pay a dime for the Muses shoe, but I would give hours of my day to have the whole experience again. There are some things that are, to rip off the old MasterCard commercials, priceless. In law, though, things cannot be priceless; everything must be assigned a monetary value. How we assign that value, whether we should incorporate the x factor, whether we should consider subjective valuations or simply examine objective valuations . . . all of these questions do not have easy answers but they are questions that must be continually contemplated as property is valued.
These are certainly not novel insights; they are pretty pedestrian observations. Far more interesting comments have been made about property valuation by Judge Richard Posner (discussing pretty well anything), Avi Bell and Gideon Parchomovksy (discussing the value of property generally, the value of information about property rights), Lee Anne Fennell and Yun-chien Chang (discussing valuing co-owned property for partition purposes), to name just a few. And this is to say nothing of the plethora of scholars, including some of those aforementioned, who have written about valuing property in the context of takings.
Valuation issues regarding property will always be an issue. If you need a real life reminder of how difficult it can be to value property, come to Mardi Gras. As the saying in New Orleans goes, “happy are they whom the muses love” for they get the highly-valued property, the shoe.