Law Commons^™

Land Virtues, Eduardo M. Peñalver

Cornell Law Faculty Publications

This article has two goals. First, I explore some of the descriptive and normative shortcomings of traditional law and economics discussions of the ownership and use of land. These market-centered approaches struggle in different ways with features of land that distinguish it from other "commodities." The complexity of land - its intrinsic complexity, but even more importantly the complex ways in which human beings interact with it - undermines the notion that owners will focus on a single value, such as wealth, in making decisions about their land. Adding to the equation land's "memory," by which I mean the combined …

Evolutionary Theory And The Origin Of Property Rights, James E. Krier

Law & Economics Working Papers Archive: 2003-2009

Legal scholars have never settled on a satisfactory account of the evolution of property rights. The touchstone for virtually all discussion, Harold Demsetz’s Toward a Theory of Property Rights, has a number of well-known (and not so well-known) shortcomings, perhaps because it was never intended to be taken as an evolutionary explanation in the first place. There is, in principle at least, a pretty straightforward fix for the sort of evolutionary approach pursued by followers of Demsetz, but even then that approach – call it the conventional approach – fails to account for very early property rights, right at the …

Chain Reaction: How Property Begets Property, Sabrina Safrin

Rutgers Law School (Newark) Faculty Papers

Classic theories for the evolution of property rights consider the emergence of private property to be a progressive development reflecting a society’s movement to a more efficient property regime. This article argues that instead of this progressive dynamic, a more subtle and damaging chain reaction dynamic can come into play that traditional theories for intellectual and other property rights neither anticipate nor explain. The article suggests that the expansion of intellectual and other property rights have an internally generative dynamic. Drawing upon contemporary case studies, the article argues that property rights evolve in reaction to each other. The creation of …

The Problem Of Social Cost In A Genetically Modified Age, Paul J. Heald, James C. Smith

Scholarly Works

In Part I of this Article, we apply the Coase Theorem and its most useful corollary to the problem of pollen drift. We conclude that the liability of pollen polluters should be governed by balancing rules against nuisance law, to be applied on a case-by-case basis, rather than by a blanket liability or immunity rule. We also conclude that truly bystanding non-GMO farmers should have a viable defense to patent infringement because liability would result in the application of a reverse Pigovian tax that cannot be justified under accepted economic theory. Only a contextual approach can account for the wide …

One For All: The Problem Of Uniformity Cost In Intellectual Property Law, Michael W. Carroll

Working Paper Series

Intellectual property law protects the owner of each patented invention or copyrighted work of authorship with a largely uniform set of exclusive rights. Historically, this uniformity may have been justified in light of the relative homogeneity of market conditions applicable to protected subject matter, such as books or mechanical inventions. Technological progress since the founding has led to considerable growth in the range of inventions and expressive works to which patent and copyright law apply, respectively. In the modern context, it is clear that innovators’ needs for intellectual property protection vary substantially across industries and among types of innovation. Applying …

Rev. Proc. 2005-24 And The Upc Elective Share, Lawrence W. Waggoner

Law & Economics Working Papers Archive: 2003-2009

This article discusses Revenue Procedure 2005-24, which came as a bombshell to the estate-planning bar. The Rev. Proc. requires a spousal waiver of elective-share rights in order for a charitable remainder annuity trust (CRAT) or a charitable remainder unitrust (CRUT) created on or after June 28, 2005, to qualify for a charitable deduction. The elective share is a statutory provision common to most probate codes in non-community-property states that protect a decedent’s surviving spouse against disinheritance.

The Rev. Proc. is primarily though apparently not exclusively addressed to the elective share of the Uniform Probate Code (UPC). Unfortunately, the Rev. Proc. …

Overcoming Poletown: County Of Wayne V. Hathcock, Economic Development Takings, And The Future Of Public Use, Ilya Somin

George Mason University School of Law Working Papers Series

County of Wayne v. Hathcock is an important step forward in public use takings law. The Michigan Supreme Court was right to overturn its notorious 1981 Poletown decision and forbid condemnations that transfer property to private parties solely on the grounds that the new owners will contribute to “economic development.” Poletown was the best known and most widely criticized decision justifying a nearly unlimited condemnation power.

As the Poletown case dramatically demonstrates, the economic development rationale is a virtual blank check for eminent domain abuse for the benefit of private parties. Poletown upheld a condemnation as a result of which …

This Land Is My Land, This Land Is Your Land: Markets And Institutions For Economic Development On Native American Reservations, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

This paper presents the current land regime and nature of economic development found on most Native American reservations, drawing predominantly from the Navajo Nation. It then considers the situation according to (1) neo-classical economics and (2) New Institutional Economics (NIE). The paper begins with the paired assumptions that economic growth can and should reach reservations and that the U.S. and tribal governments can improve upon past performance and institutional arrangements. Policy solutions to reservation commercial and light industrial underdevelopment, corresponding to each economic perspective in turn, are then discussed. The paper broadens the range of policy options available to tribes …

Putting Humpty Dumpty Back Together: Pricing In Anticommons Property Arrangements, Ben Depoorter, Sven Vanneste

George Mason University School of Law Working Papers Series

Recently, a new theory has drawn considerable attention in the literature on common property. A number of scholars have pointed to the danger of excessive propertization in the context of what are termed "anticommons" property regimes. Although this theory has found its way into numerous legal and economic applications, the empirical and cognitive foundations of the theory of fragmentation remain unexplored. Based on experimental data, this Article conducts an investigation into the social and personal processes involved in the anticommons.

The results confirm the theoretical proposition that anticommons deadweight losses increase with the degree of complementarity between individual parts and …