Law Commons^™

Flexibility And Conversions In New York City's Housing Stock: Building For An Era Of Rapid Change, Ingrid Gould Ellen, Noah Kazis

Law & Economics Working Papers

Post-COVID, New York City faces reduced demand for commercial space in its central business districts, even as residential demand is resurgent. Just as in past eras of New York’s history, conversion of commercial spaces into housing may help the city adapt to these new market conditions and provide an additional pathway for producing badly needed housing. If 10 percent of office and hotel spaces were converted to residential use, around 75,000 homes would be created, concentrated in Midtown Manhattan. However, there are considerable obstacles to such conversions, including a slew of regulatory barriers. Allowing greater flexibility in building uses—including by …

Learning From Land Use Reforms: Housing Outcomes And Regulatory Change, Noah Kazis

Law & Economics Working Papers

This essay serves as the introduction for an edited, interdisciplinary symposium of articles studying recent land use reforms at the state and local level. These papers provide important descriptive analyses of a range of policy interventions, using quantitative and qualitative methods to provide new empirical insights into zoning reform strategies.

After situating and summarizing the collected articles, the Introduction draws out shared themes. For example, these essays demonstrate the efficacy of recent reforms, not only at facilitating housing production but at doing so in especially difficult contexts (like when producing affordable housing and redeveloping single-family neighborhoods). They point to the …

How The Blockchain Undermined Digital Ownership, Aaron Perzanowski

Articles

The shift from a market built around the sale of tangible goods to one premised on the licensing of digital content and services has done significant and lasting damage to the notion of individual ownership. The emergence of blockchain technology, while certainly not necessary to reverse these trends, promised an opportunity to attract investment and demonstrate consumer demand for marketplaces that recognize meaningful digital ownership. Simultaneously, it offered an avenue for alleviating worries about hypothetical widespread reproduction and unchecked distribution of copyrighted works. Instead, many of the most visible blockchain projects in recent years—the proliferation of new cryptocurrencies and the …

An Empirical Study Of Implicit Takings., James E. Krier, Stewart E. Sterk

Articles

Takings scholarship has long focused on the niceties of Supreme Court doctrine, while ignoring the operation of takings law "on the ground" in the state and lower federal courts, which together decide the vast bulk of all takings cases. This study, based primarily on an empirical analysis of more than 2000 reported decisions ovcr the period 1979 through 2012, attempts to fill that void. This study establishes that the Supreme Court's categorical rules govern almost no state takings cases, and that takings claims based on government regulation almost invariably fail. By contrast, when takings claims arise out of government action …

The Perverse Effects Of Subsidized Weather Insurance, Omri Ben-Shahar, Kyle D. Logue

Articles

This Article explores the role of insurance as a substitute for direct regulation of risks posed by severe weather. In pricing the risk of human activity along the predicted path of storms, insurance can provide incentives for efficient location decisions as well as for cost-justified mitigation efforts in building construction and infrastructure. Currently, however, much insurance for severe-weather risks is provided and heavily subsidized by the government. This Article demonstrates two primary distortions arising from the government’s dominance in these insurance markets. First, existing government subsidies are allocated differentially across households, resulting in a significant regressive redistribution favoring affluent homeowners …

Of Property Rights And Rights To Property, James E. Krier

Articles

In 2004, President George W. Bush said, “I believe in private property so much, I want everyone in America to have some.” Much earlier, in 1948, an economics professor from the University of Texas expressed the same sentiment in strikingly similar terms. When asked by an investigatory committee of the Texas legislature whether he favored private property, he replied, “I do . . . and so strongly that I want everyone in Texas to have some.” Even putting aside the possibility that the President’s speechwriters found inspiration in an unacknowledged source, there are several interesting things to note about these …

Finding, Sharing And Risk Of Loss: Of Whales, Bees And Other Valuable Finds In Iceland, Denmark And Norway, William I. Miller, Helle Vogt

Articles

The focus of the paper is twofold: the first part is about how property rights were assigned and ranked in finds, both in those items such as bees, rings and other valuables which were previously owned, and also in those things, like whales, which were unowned. We focus on Icelandic, Danish and Norwegian laws from the twelfth and thirteenth centuries, yet most of the provisions were copied into later laws and were in force up until modern times, some even current now. The second part treats the question of how risks of loss were handled, and how simple forms of …

The Possession Heuristic, James E. Krier, Christopher Serkin

Book Chapters

A heuristic, as Daniel Kahneman (2011: 98) observes, “is a simple procedure that helps find adequate, though often imperfect, answers to difficult questions.” Kahneman is a psychologist, one of a handful of scholars who have brought heuristics to the attention of a general audience, thanks in large part to several books (Kahneman, Slovic, and Tversky 1982; Gilovich, Driffin, and Kahneman 2002). Just as Thomas Kuhn’s 1962 ideas about paradigms in the history of science are fodder for academics in all sorts of fields (this for better or worse), so too for Kahneman and company’s ideas about heuristics, and legal academics …

Reconciling Intellectual And Personal Property, Aaron Perzanowski, Jason Schultz

Articles

This Article examines both the forces undermining copy ownership and the important functions it serves within the copyright system in order to construct a workable notion of consumer property rights in digital media.

Part I begins by examining the relationship between intellectual and personal property. Sometimes courts have treated those rights as inseparable, as if transfer of a copy entails transfer of the intangible right, or retention of the copyright entails ongoing control over particular copies. But Congress and most courts have recognized personal and intellectual property as interests that can be transferred separately. Although the better view, this approach …

Judicial Takings: Musings On Stop The Beach, James E. Krier

Law & Economics Working Papers

This brief paper is a primer on and critique of judicial takings after Stop the Beach.

Judicial takings weren’t much talked about until a few years ago, when the Stop the Beach case made them suddenly salient. The case arose from a Florida statute, enacted in 1961, that authorizes public restoration of eroded beaches by adding sand to widen them seaward. Under the statute, the state has title to any new dry land resulting from restored beaches, meaning that waterfront owners whose land had previously extended to the mean high-tide line end up with public beaches between their land and …

The Possession Heuristic, James E. Krier, Christopher Serkin

Law & Economics Working Papers

This chapter for the forthcoming book, The Law and Economics of Possession (Yun-chien Chang, ed), explores the law of possession as an application of a heuristic (a simple decision making strategy devised to solve complex problems, part of System 1 thinking in Daniel Kahneman’s famous formulation). Since the law of property is essentially the law of belongings, its first task is to determine to whom things belong. There are all sorts of complicated inquiries that could be undertaken to figure out and justify an incredible range of answers to this question. Alternatively, there is a simple inquiry that provides a …

Judicial Takings: Musings On Stop The Beach, James E. Krier

Articles

Judicial takings weren’t much talked about until a few years ago, when the Stop the Beach case made them suddenly salient. The case arose from a Florida statute, enacted in 1961, that authorizes public restoration of eroded beaches by adding sand to widen them seaward. Under the statute, the state has title to any new dry land resulting from restored beaches, meaning that waterfront owners whose land had previously extended to the mean high-tide line end up with public beaches between their land and the water. This, the owners claimed, resulted in a taking of their property, more particularly their …

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 …

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

Articles

For legal scholars, the evolution of property rights has been a topic in search of a theory. My aim here is to draw together various accounts (some of them largely neglected in the legal literature), from dated to modern, and suggest a way they can be melded into a plausible explanation of property's genesis and early development. What results hardly amounts to a theory, but it does suggest an outline for one. Moreover, it provides a primer on the subject, a reasonably solid foundation for thinking and talking about the evolution of property rights.

Facts, Information, And The Newly Discovered Record In Pierson V. Post, James E. Krier

Articles

Unlike Professors Fernandez, Banner, and Donahue, I am not a legal historian; like them, however, I am much interested in the comings and goings of the famous old case about the fox. It figures significantly in my course on property and in my co-authored book on the subject. The background of the case is noted in the book and will be updated in the next edition to take account of Fernandez's discovery of the hitherto lost judgment roll in the case.I Her find yields many facts, but, in my judgment, virtually no information. Facts are necessary to information, but not …

The Evolution Of Property Rights: A Synthetic Overview, James E. Krier

Law & Economics Working Papers Archive: 2003-2009

In this paper I review, extend, and critique two contrasting approaches to the evolution of property rights. The legal literature on the subject is dominated by a conventional approach, which holds a virtual monopoly despite its many shortcomings, and the literature neglects an alternative approach, despite its many virtues (including, but not limited to, the virtue of responding to many of the conventional approach’s deficiencies). The paper provides an overview of both approaches, including a brief intellectual history of each – and should thus inform readers without specialized knowledge of the subject but nevertheless interested in it – and aims …

Review Of Optional Law: The Structure Of Legal Entitlements, Omri Ben-Shahar

Reviews

The concept of "property rights" plays a prominent role in economic theory. Economists have been studying how property rights emerged as a system of allocation, replacing regimes of open access and lack of legal order. Property rights are regularly viewed by economists as the primary policy tool to control the incentives to invest in new assets (e.g., in information) and to maintain existing assets (e.g., fisheries) when contracts are incomplete. Property rights are the endowments that individuals exchange in a market economy, the equity that investors trade in financial markets. Property rights are a basic building block in economics.

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. …

Home And Homelessness In The Middle Of Nowhere, William I. Miller

Book Chapters

In Iceland one must have a home; it is an offense not to-in some circumstances, a capital offense. A sturdy beggar was liable for full outlawry, which meant he could be killed with impunity. The laws are hard on vagrants. Fornication with a beggar woman was unactionable; it was lawful to castrate a vagabond, and he had no claim if he were injured or killed during the operation. One could take in beggars solely for the purpose of whipping them, nor was one to feed or shelter them at the Thing on pain of lesser outlawry. Their booths at the …

Public Ruses, James E. Krier, Christopher Serkin

Articles

The public use requirement of eminent domain law may be working its way back into the United States Constitution. To be sure, the words "public use" appear in the document-and in many state constitutions as well, but the federal provision applies to the states in any event-as one of the Fifth Amendment's limitations on the government's inherent power to take private property against the will of its owners. (The other limitation is that "just compensation" must be paid, of which more later.) Any taking of private property, the text suggests, must be for public use. Those words, however, have amounted …

The Rise Of The Perpetual Trust, Jesse Dukeminier, James E. Krier

Articles

For more than two centuries, the Rule against Perpetuities has served as the chief means of limiting a transferor's power to tie up property by way of successive contingent interests. But recently, at least seventeen jurisdictions in the United States have enacted statutes abolishing the Rule in the case of perpetual (or near-perpetual) trusts. The prime mover behind this important development has been the federal Generation-Skipping Transfer Tax. This Article traces the gradual decline of the common law Rule against Perpetuities, considers the dynamics behind the recent wave of state legislation, examines the problems that might result from the rise …

Property In Writing, Property On The Ground: Pigs, Horses, Land, And Citizenship In The Aftermath Of Slavery, Cuba, 1880-1909, Rebecca J. Scott, Michael Zeuske

Articles

In the most literal sense, the abolition of slavery marks the moment when one human being cannot be held as property by another human being, for it ends the juridical conceit of a "person with a price." At the same time, the aftermath of emancipation forcibly reminds us that property as a concept rests on relations among human beings, not just between people and things. The end of slavery finds former masters losing possession of persons, and former slaves acquiring it. But it also finds other resources being claimed and contested, including land, tools, and animals-resources that have shaped former …

The Community Reinvestment Act: Its Impact On Lending In Low-Income Communities In The United States, Michael S. Barr, Lynda Y. De La Vina, Valerie A. Personick, Melissa A. Schroder

Book Chapters

This paper reviews data and research studies that demonstrate that CRA has helped to increase lending to low-income borrowers and in low-income neighborhoods, and that expanded CRA lending has been accomplished while maintaining sound lending practices and bank profitability. The paper also discusses literature that draws alternative conclusions, as well as studies that find, despite increases in lending and banking services to low- and moderate-income areas and to minority borrowers, that disparities still exist between the services afforded to these communities and those offered to the market as a whole.

A Property Theory Perspective On Russian Enterprise Reform, Michael Heller

Book Chapters

Why have Russian enterprises performed so poorly since privatization? This is a problem with many answers, each independently sufficient: the bleak mix includes vacillating macroeconomic policy, endemic corruption, a corrosive tax structure, poor human capital, and so forth. Even well-performing companies must hide good results because visible profits or dividends provoke confiscatory taxation and mafia visits. In such a difficult environment, the rule of law generally, and corporate governance in particular, may seem not to count. Macroeconomic implosions dwarf subtle distinctions in corporate dividend rules or minority voting rights.

The Liberal Commons, Hanoch Dagan, Michael A. Heller

Articles

Following the Civil War, black Americans began acquiring land in earnest; by 1920 almost one million black families owned farms. Since then, black rural landownership has dropped by more than 98% and continues in rapid decline-there are now fewer than 19,000 black-operated farms left in America. By contrast, white-operated farms dropped only by half, from about 5.5 million to 2.4 million. Commentators have offered as partial explanations the consolidation of inefficient small farms and intense racial discrimination in farm lending. However, even absent these factors, the unintended effects of old-fashioned American property law might have led to the same outcome. …

The Dynamic Analytics Of Property Law, Michael A. Heller

Articles

The standard property trilogy of private, commons, and state has become so outdated that it now impedes imagination and innovation at the frontiers of ownership. This essay suggests two approaches - creating new ideal types and synthesizing existing ones - that may help update our static property metaphors. Using these dynamic approaches to property analytics, legal theory can move beyond polarizing oppositions that have made jurisprudential debates unsolvable and rendered concrete problems invisible.

Empty Moscow Stores: A Cautionary Tale For Property Innovators, Michael A. Heller

Book Chapters

Under socialism, governments stifled markets and often left store shelves bare. One promise of transition was that new entrepreneurs would acquire the stores, create businesses, and fill the shelves. 2 However, after several years of reform, storefronts often remained empty, while flimsy metal kiosks, stocked full of goods, mushroomed on Moscow streets (Rapaczynski 1996). Why did new merchants not come in from the cold? This chapter argues that even if the initial endowment of property rights were clearly defined, corruption held in check, and the rule of law respected (e.g., Gray, Hanson, and Heller 1992; Frydman and Rapaczynski 1994; Shleifer …

Three Faces Of Private Property, Michael A. Heller

Articles

Private property is a rather elusive concept. Any kid knows what it means for something to be mine or yours, but grownup legal theorists get flustered when they try to pin down the term. Typically they, actually we, turn to a familiar analytic toolkit: including, for example, Blackstone's image of private property as "sole and despotic dominion"; Hardin's metaphor of the "tragedy of the commons"; and, more generally, the division of ownership into a trilogy of private, commons, and state forms. While each analytic tool has a distinguished pedigree and certain present usefulness, each also imposes a cost because it …

Uncoupling The Law Of Takings, Michael A. Heller, James E. Krier

Articles

The law of takings couples together matters that should be treated independently. The conventional view, shared by courts and commentators alike, has been that any takings case can be resolved in one of two ways: either there is a taking and compensation is due, or there is no taking and no compensation is due. These results are fine as long as one holding or the other serves the two central concerns of the Takings Clause - eficiency and justice. But a problem arises when the two purposes behind the law of takings come into cordhct, as they readily might. It …

Making Something Out Of Nothing: The Law Of Takings And Phillips V. Washington Legal Foundation, Michael A. Heller, James E. Krier

Articles

Phillips v. Washington Legal Foundation held that interest on principal amounts deposited into IOLTA accounts is the property of the various clients who handed over the money but expressed no view as to whether the Texas IOLTA program worked a taking, or, if it did, whether any compensation was due. The debates among the justices about the meaning of private property, argued in terms of contextual and conceptual severance, are unlikely to prove fruitful. We elaborate a better approach in terms of the underlying purposes of just compensation. We conclude that efficiency and justice are best served by uncoupling matters …