PropertyProf Blog

Banta on Digital Property and Feudalism

Natalie M Banta (Drake) has posted Property Interests in Digital Assets: The Rise of Digital Feudalism (Cardozo Law Review) on SSRN. Here's the abstract:

The emergence of digital assets has created a host of new legal questions regarding their status as a property interest. Digital assets consist of intangible interests like e-mail accounts, social media accounts, reward points, and electronic media. These assets seem like a property interest, but because digital assets are a creature of contract, private contracts determine whether an owner can use, sell, transfer, exclude, donate, or dispose of the asset in a testamentary instrument. These digital asset contracts often take an unprecedented step of prohibiting or severely limiting the transfer of digital assets after death. By unilaterally eviscerating a long cherished right of property — the right to devise — these contracts create digital assets that are more akin to a license or tenancy instead of a fee simple absolute. Contractual terms controlling digital assets create a system this Article calls “digital feudalism,” characterized by absolutism, hierarchy, and a concentration of power. This Article examines property interests imbued in digital assets, namely the rights to use, control, exclude, and transfer. It analyzes digital assets under the labor, utilitarian, and personhood theories to justify their existence as a form of property. As a form of property, this Article argues that property law protects an individual’s rights to her digital assets — rights like testamentary disposition that cannot be contracted away. Property law has always mirrored society’s decisions about how to control and allocate resources and our treatment of digital assets are no different. Digital assets themselves function so similarly to property that we must apply traditional property law principles to ensure that our rights over digital assets do not regress into an anti-democratic and archaic form of feudalism in a technologically driven future.

Franzese Op-Ed on Tenants' Rights and Rental Retribution

Paul Franzese (Seton Hall) has written an op-ed in New Jersey.com titled Tenants Shouldn't be 'Blacklisted' For Asserting Their Rights. Check out this excerpt:

Yanira Cortes, a mother of four young children, lives in subsidized housing in Newark's Pueblo City Apartments. Her apartment is unsafe and uninhabitable, infested by rats, roaches and mold.

Her complaints to the landlord have gone unheeded. Finally, when the premises' bathroom ceiling collapsed, she withheld rent as is her right under the law and was promptly sued for eviction.

As a result, she found herself placed on a tenant "blacklist" that is the equivalent of a miserable credit rating.

Tenants who appear on those "tenant screening reports" find themselves denied future renting opportunities and discriminated against because they asserted their right to safe and inhabitable housing. . . . 

For the past two years my colleagues Abbott Gorin, David Guzik and I have studied the experiences of low-income residential tenants in Essex County. We found that landlords can use tenant screening reports generated by private reporting agencies as a means to penalize tenants who fight back against unsafe and unlivable conditions.

Tenants like Cortes find themselves punished for asserting their right to safe and inhabitable premises while landlords who lease grossly substandard affordable housing units continue to receive sizable state and federal subsidies for those units.

CFP: Detroit Mercy Symposium on the Future of HUD

From our friends at the University of Detroit Mercy School of Law:

HUD: Past, Present, and Future

The University of Detroit Mercy School of Law seeks proposals from scholars, practitioners, and housing advocates interested in participating in its fall interdisciplinary symposium, entitled HUD’s Past, Present and Future (“Symposium”), which will take place over a two day period (with a third day being dedicated to educational outreach for the public) as follows: . . . 

II. TWO-DAY ACADEMIC SYMPOSIUM: SCHEDULED ON MONDAY, NOVEMBER 13, 2017 AND TUESDAY, NOVEMBER 14, 2017 

PURPOSE OF THE SYMPOSIUM 

Since its inception in 1965, the United States Department of Housing and Urban Development (HUD) has been an integral part of affordable housing development and primary responsibility for developing sustainable communities across the country. While HUD’s role is clear, this seminal Symposium's purposes are to: 1) evaluate its impact and propose expansions or alternatives, if any, that will make it more effective in the future; and 2) for a time such as this, commit to use collective or interdisciplinary knowledge to enhance our nation. (“Goals”). 

Ultimately, to comprehensively address this multi-dimensional topic, law professors and/or lawyers, sociologists, economists, elected officials, people from HUD, MSHDA, certified counseling agencies, the ecclesiastical community, financial institutions and diverse bar associations, among others from across the country, are invited to attend or participate. Specifically, participants will complete Power Point slides to make presentations at the Symposium, followed by article(s) which will be due on the date reflected below.2 As indicated in the attached Schedule B, the final panel discussion on the second day will focus exclusively on Michigan and how HUD's programs have impacted the region, generally, and Detroit, in particular. 

IMPORTANT DATES, DEADLINES AND ACCESS TO INFORMATION: 

 Abstract and CV (collectively “Proposals”): August 15, 2017 

Proposals should reflect the following: 1) Name of the Panel; 2) Topic and Abstract;3 and, 2) Scheduled Time. 

 Notification of Accepted Proposal September 1, 2017 

IF PROPOSAL IS ACCEPTED, PLEASE NOTE THE FOLLOWING SUBMISSION DEADLINES: 

 Power Point slides: October 15, 2017 

 Final Article: January 15, 2018 

 Submissions and Information: [email protected] (Visiting Prof. Florise R. Neville-Ewell | 313.596.0230)

Singer on Property Law and Religion in Public Accomodations

Joe Singer (Harvard) has posted Property and Sovereignty Imbricated: Why Religion Is Not an Excuse to Discriminate in Public Accommodations (Theoretical Inquiries in Law) on SSRN. Here's the abstract:

May a hotel owner that objects to same-sex marriage on religious grounds refuse to host a same-sex wedding in its ballroom or deny the couple the right to book the honeymoon suite? Do public accommodation laws oppress religious dissidents by forcing them to act contrary to their religious beliefs or does discriminatory exclusion threaten equal access to the market economy and deny equal citizenship to LGBTQ persons? Answering these questions requires explaining why one property claim should prevail over another and why one liberty should prevail when it clashes with another. And answering those questions requires analysis of the relationship between property and sovereignty.

Sovereign power both creates and regulates the types of property rights that can be tolerated in a free and democratic society that values each person equally. Should we view sovereignty as a threat to property or property as a threat to sovereignty? Libertarians choose the first and liberals the second. But this is the wrong way to understand the relation between property and sovereignty. Property and sovereignty are not separate and independent concepts or spheres of social life that can be brought into relationship with each other. Rather, they are imbricated; they overlap like roof tiles. Our aspiration to live in a free and democratic society places certain constraints on both property and sovereignty. Such societies do not recognize absolute power, whether public or private. Free and democratic societies are committed to a substantive vision of both social relations and politics. We have fruitful debates about property and sovereignty and, in the end, must construct a legal system that effects an acceptable compromise between access and exclusion in the property regime.

Our historic practices regarding racial and other forms of discrimination and our evolving norms suggest that public accommodation laws enable access to the marketplace without regard to invidious discrimination. Religious freedom cannot operate to deny equal citizenship or opportunity. For that reason, a same-sex couple should not have to call ahead to see if they are welcome to book the honeymoon suite. Public accommodation laws do not infringe on legitimate property rights or religious freedoms; rather, they define the legitimate contours of liberty and property in a society that treats each person with equal concern and respect.

Zale on Local Government Law and Land Use Decision-Making

For a little property law and local government decision-making, Kellen Zale (Houston) has posted Compensating City Council (Stanford Law Review) on SSRN. Here's the abstract:

This Article analyzes the institutional design of city council compensation procedures and unpacks the normative concerns surrounding the pay of elected leaders of our cities. How much of "other people's money" should city councils be paid? Should city councils decide their own pay? Should voters? Should the state legislature?

The Article contends that existing compensation procedures – such as city council control and mandatory voter referenda – distort compensation outcomes. Where procedures enable financial self-dealing, standards manipulation, or the under-accounting of non-salary compensation, overcompensation is the likely result. Conversely, where procedures enable reelection rent-seeking, election pathologies, or reverse ratcheting, undercompensation tends to result. Neither outcome is desirable: overcompensation increases burdens on taxpayers and risks elected officials motivated more by pecuniary incentives than civic duty, while undercompensation can result in elected office being open only to those wealthy enough to afford it and produce a less effective and accountable government. To address these concerns, the Article advances a prescriptive framework to improve the institutional design of city council compensation procedures, and explores the unique second-order institutional design questions of state versus local control over city council compensation. 

While compensation amounts are not necessarily determinative of quality of governance, compensation procedures affect who governs our cities. And who governs our cities matters because our cities matter. Cities are responsible for an significant share of public goods and services, and in the face of federal deadlock, cities are increasingly engaging in innovative policymaking on issues like climate change, civil rights, and consumer protection.  By better understanding the impact of compensation process on compensation outcomes, we can better understand the future of our cities.

Summer Reading: Fairfield on Property Law and Digital Ownership

If you're looking for some interesting summer reading, I highly recommend that you check out a new book by Joshua A.T. Fairfield (Washington & Lee) titled Owned: Property, Privacy, and the New Digital Serfdom (coming out at the end of this month by Cambridge University Press). I've had the pleasure of reading portions of this project over the past few years, and I've constantly been impressed by Joshua's way of exploring the role that technology is playing in our conceptions of property while at the same time really engaging with the theories of property. The topics discussed in this book are incredibly timely (particular in the age of ransomware and international hacking) as much of our identity and the business of our daily lives takes place online. Here's some excerpts from the book's summary:

In this compelling examination of the intersection of smart technology and the law, Joshua A. T. Fairfield explains the crisis of digital ownership - how and why we no longer control our smartphones or software-enable devices, which are effectively owned by software and content companies. In two years we will not own our 'smart' televisions which will also be used by advertisers to listen in to our living rooms. In the coming decade, if we do not take back our ownership rights, the same will be said of our self-driving cars and software-enabled homes. We risk becoming digital peasants, owned by software and advertising companies, not to mention overreaching governments. . . Owned explains how the increasing implementation of smart technology in our world today has changed the nature of property. Fairfield explains property theory and the legal regime of online ownership as it ties to the 'Internet of Things' - the interconnected system of digital technology as controlled by corporations who own the software needed to run these devices. . . .Owned should be read by anyone wanting to know more about the loss of our property rights, the implications for our privacy rights and how we can regain control of both.

If you want to read more of Joshua's work, click here. Happy reading!