Law Commons^™

Originality, Gideon Parchomovsky, Alex Stein

All Faculty Scholarship

In this Essay we introduce a model of copyright law that calibrates authors’ rights and liabilities to the level of originality in their works. We advocate this model as a substitute for the extant regime that unjustly and inefficiently grants equal protection to all works satisfying the “modicum of creativity” standard. Under our model, highly original works will receive enhanced protection and their authors will also be sheltered from suits by owners of preexisting works. Conversely, authors of less original works will receive diminished protection and incur greater exposure to copyright liability. We operationalize this proposal by designing separate rules …

Reconceptualizing Trespass, Gideon Parchomovsky, Alex Stein

All Faculty Scholarship

This Essay addresses an anomaly in trespass law. Trespass law is generally understood as the paradigmatic example of property-rule protection: an owner can obtain an injunction against the trespasser and have him removed from her land. The property-rule protection enjoyed by the owner protects her right to exclude others and to set the price for the use of her property. However, the property-rule protection only exists ex ante: it avails only against imminent or ongoing trespasses. Ex post, after a trespass ends, the owner can only recover compensation measured by the market value of the unauthorized use, i.e., the going …

Patents, Property, And Competition Policy, Herbert J. Hovenkamp

All Faculty Scholarship

The decision to regulate involves the identification of markets where simple assignment of property rights is not sufficient to ensure satisfactory competitive results, usually because some type of market failure obtains. By contrast, if property rights are well defined when they are initially created and can subsequently be traded to some reasonably competitive equilibrium, then regulation is thought not to be necessary. In such cases the antitrust laws have a significant role to play in ensuring that the market can be as competitive as free trading allows. One problem with the patent system is that once a patent is granted …

The Ancient Roots Of Modern Financial Innovation: The Early History Of Regulatory Arbitrage, Michael S. Knoll

All Faculty Scholarship

Recent years have seen an explosion of financial innovation. Much of this innovation seeks to exploit inconsistencies in the regulatory environment, and one of the most popular techniques for doing so uses put-call parity. Nonetheless, regulatory arbitrage using put-call parity is not a new phenomenon, as is frequently suggested. This Essay traces the use of put-call parity to avoid the usury prohibition back to Ancient Israel. It also describes the important role that put-call parity played in developing the equity of redemption, the defining characteristic of a modern mortgage, in Medieval England. In addition, this Essay describes how Muslims living …

Reconfiguring Property In Three Dimensions, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

In this Article, we demonstrate that every property question invariably involves three distinct dimensions: (1) the number of owners, (2) the scope of owner’s dominion and (3) asset configuration. Furthermore, we claim that the interplay among the three dimensions shapes the field of property and holds the key to understanding the deep structure of property law. On this view, property law is a balancing act that requires policymakers and private actors to constantly juggle the often-conflicting demands lying along these three dimensions. The three-dimensional account of property we develop in this Article has important descriptive and normative implications. Descriptively, we …

Of Equal Wrongs And Half Rights, Gideon Parchomovsky, Peter Siegelman, Steven Thel

All Faculty Scholarship

With a tiny handful of exceptions, common law jurisprudence is predicated on a “winner-take-all” principle: the plaintiff either gets the entire entitlement at issue or collects nothing at all. Cases that split an entitlement between the two parties are exceedingly rare. While there may be sound reasons for this all-or-nothing rule, we argue in this Article that the law should prefer equal division of an entitlement in a limited but important set of property, tort and contracts cases. The common element in such cases is a windfall, a gain or loss that occurs despite the fact that no ex ante …

The Effect Of Joint And Several Liability Under Superfund On Brownfields, Howard F. Chang, Hilary A. Sigman

All Faculty Scholarship

In response to claims that the threat of environmental liability under the Superfund law deters the acquisition of potentially contaminated sites (or "brownfields") for redevelopment, the federal government has adopted programs to protect purchasers from liability. This protection may be unwarranted, however, if sellers can simply adjust property prices downward to compensate buyers for this liability. We present a model of joint and several liability under Superfund that allows us to distinguish four different reasons that this liability may discourage the purchase of brownfields. The previous literature has overlooked the effects that we identify, which all arise because a sale …

Taking Compensation Private, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

In light of the expansive interpretation of the ""public use"" requirement, the payment of ""just compensation"" remains the only meaningful limit on the government's eminent domain power and, correspondingly, the only safeguard of private property owners' rights against abusive takings. Yet, the current compensation regime is suboptimal. While both efficiency and fairness require paying full compensation for seizures by eminent domain, current law limits the compensation to market value. Despite the virtual consensus about the inadequacy of market compensation, courts adhere to it for a purely practical reason: there is no way to measure the true subjective value of property …

Beyond Kelo: Thinking About Urban Development In The 21st Century, Wendell E. Pritchett

All Faculty Scholarship

No abstract provided.

The Uselessness Of Public Use, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

The Supreme Court decision of Kelo v. City of New London has been denounced by legal scholars from the entire political spectrum and given rise to numerous legislative proposals to reverse Kelo's deferential interpretation of the Public Use Clause of the Fifth Amendment, and instead, limit the use of eminent domain when taken property is transferred to private hands. In this Essay we argue that the criticisms of Kelo are ill-conceived and misguided. They are based on a narrow analysis of eminent domain that fails to take into account the full panoply of government powers with respect to property. Given …

Bargaining For Takings Compensation, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

Efficiency and fairness require paying full compensation to property owners when their property is taken by eminent domain. Yet, to date, the evidentiary challenge of proving subjective value has proved insurmountable, and current law requires condemnees to settle for fair market value. This Article proposes a self-assessment mechanism that can make full compensation at subjective value practical. Under our proposal, property owners must be given the opportunity to state the value of the property designated for condemnation. Once property owners name their price, the government can take the property only at that price. However, if the government chooses not to …

Of Property And Federalism, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

This Essay proposes a mechanism for expanding competition in state property law, while sketching out the limitations necessary to protect third parties. The fact that property law is produced by the states creates a unique opportunity for experimentation with such property and property-related topics as same-sex marriages, community property, adverse possession and easements. The Essay begins by demonstrating the salutary effects of federalism on the evolution of property law. Specifically, it shows that competition among states has created a dynamic property system in which new property institutions replace obsolete ones. The Essay then contemplates the possibility of increasing innovation and …

A Theory Of Property, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

Notwithstanding its importance, property law has eluded both a consistent definition and a unified conceptual framework. Indeed, modern property scholarship has utterly splintered the field. On the one hand, instrumentalists view property as nothing more than default contract rules. On the other hand, conceptualists proclaim the primacy of in rem, rights and specially privileged rights such as the rights to exclude, to use, and to transfer. Still other legal scholars think of property as a "bundle of sticks" capable of assuming any shape or form.

This Article proposes a unified theory of property predicated on the insight that property law …

"Sovereignty" Issues And The Church Bankruptcy Cases, David A. Skeel Jr.

All Faculty Scholarship

No abstract provided.

On Software Regulation, Polk Wagner

All Faculty Scholarship

This Article develops a novel analytic framework for the evaluation of regulatory policy in cyberspace, flowing from a reconceptualization of cyberlaw’s central premise: software code as complementary to law rather than its substitute. This approach emphasizes the linkage between law and software; for every quantum of legal-regulatory impact, there is a corresponding equilibria of regulation-bysoftware. The absence of a legal right will stimulate a technological response—and such incentives will moderate with increased rights. Rather than “code is law,” this is “code meets law.” The implications of this methodological shift are explored in the context of the emerging (and intensely controversial) …

The Recently Revised Marriage Law Of China: The Promise And The Reality, Charles J. Ogletree Jr., Rangita De Silva De Alwis

All Faculty Scholarship

In April 2001, the Standing Committee of the Ninth National People's Congress (NPC), China's highest legislative body, passed the long-debated and much awaited amendments to the Marriage Law on the closing day of its twenty-first session. As stated by one PRC commentator, "In the 50 years since the founding of the New China, there has not been any law that has caused such a widespread concern for ordinary people."'

Even though the recent revisions to the marriage laws have been hailed as some of the most significant and positive changes in family law in China, thus far no empirical evaluation …

The "Public Menace" Of Blight: Urban Renewal And The Private Uses Of Eminent Domain, Wendell E. Pritchett

All Faculty Scholarship

No abstract provided.

Avoiding Moral Bankruptcy, David A. Skeel Jr.

All Faculty Scholarship

Faced with hundreds of clergy sexual misconduct cases last year, the Archdiocese of Boston hinted that it was considering filing for bankruptcy. Although it is hard to imagine an archdiocese or church filing for bankruptcy, bankruptcy has become an important forum for many social issues that cannot be easily resolved elsewhere. This Article explores the implications of a religious organization bankruptcy filing by focusing on four problems with the bankruptcy alternative: the possibility of dismissal for being filed in bad faith; the question of what church assets are subject to the process; the fact that the church might be subject …

Information Wants To Be Free: Intellectual Property And The Mythologies Of Control, R. Polk Wagner

All Faculty Scholarship

This article challenges a central tenet of the recent criticism of intellectual property rights: the suggestion that the control conferred by such rights is detrimental to the continued flourishing of a public domain of ideas and information. I argue that such theories understate the significance of the intangible nature of information, and thus overlook the contribution that even perfectly controlled intellectual creations make to the public domain. In addition, I show that perfect control of propertized information - an animating assumption in much of the contemporary criticism - is both counterfactual and likely to remain so. These findings suggest that …

Of Property And Anti-Property, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

Private property is widely perceived as a potent prodevelopment and anticonservationist force. The drive to accumulate wealth through private property rights is thought to encourage environmentally destructive development; legal protection of such property rights is believed to thwart environmentally friendly public measures. Indeed, property rights advocates and environmentalists are generally described as irreconcilable foes. This presumed clash often leads environmentalists to urge public acquisition of private lands. Interestingly, less attention is paid to the possibility that the government may prove no better a conservator than private owners. Government actors often mismanage conservation properties, collaborating with private developers to dispose of …

Where Shall We Live? Class And The Limitations Of Fair Housing Law, Wendell Pritchett

All Faculty Scholarship

This paper examines the effort to secure fair housing laws at the local, state and federal levels in the 1950s, focusing in particular on New York City and state. It will examine the arguments that advocates made regarding the role the law should play in preventing housing discrimination, and the relationship of these views to advocates' understanding of property rights in general. My paper will argue that fair housing advocates had particular conceptions about the importance of housing in American society that both supported and limited their success. By arguing that minorities only sought what others wanted - a single-family …

Pliability Rules, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

In 1543, the Polish astronomer, Nicolas Copernicus, determined the heliocentric design of the solar system. Copernicus was motivated in large part by the conviction that Claudius Ptolemy's geocentric astronomical model, which dominated scientific thought at that time, was too incoherent, complex, and convoluted to be true. Hence, Copernicus made a point of making his model coherent, simple, and elegant. Nearly three and a half centuries later, at the height of the impressionist movement, the French painter Claude Monet set out to depict the Ruen Cathedral in a series of twenty paintings, each presenting the cathedral in a different light. Monet's …

On Insider Trading, Markets, And "Negative" Property Rights In Information, Zohar Goshen, Gideon Parchomovsky

All Faculty Scholarship

No abstract provided.

Givings, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

Givings - government acts that enhance property value - are omnipresent. Givings and takings are mirror images of one another, and of equal practical and theoretical importance, but the Takings Clause of the Fifth Amendment has enabled takings to dominate scholarly attention. This Article makes the first step toward rectifying this disparate treatment by laying the foundation for a law of givings. The Article identifies three prototype givings: physical givings, regulatory givings and derivative givings. The Article shows that givings are a formative force in property, and that a comprehensive takings jurisprudence cannot be devised without an attendant understanding of …

Takings Reassessed, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

In this Essay, we challenge the conventional typology of constitutional takings by bringing to light a previously unrecognized type of taking-the derivative taking. We show that virtually every exercise of the power of takings generates derivative takings that have largely evaded takings scholars. Furthermore, we demonstrate that the failure of existing takings doctrine to account for derivative takings leads to inefficient and inequitable results. In particular, this failure disproportionately harms the poor. To remedy this problem, we craft an economic model of self-assessment to optimize constitutional protection at low administrative cost. Importantly, our self-assessment mechanism incentivizes property owners to report …

The Integration Game, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

No abstract provided.

The Newest Property: Reproductive Technologies And The Concept Of Parenthood, Kermit Roosevelt Iii

All Faculty Scholarship

No abstract provided.

"Not Just For The Fun Of It!" Governmental Restraints On Black Leisure, Social Inequality, And The Privatization Of Public Space, Regina Austin

All Faculty Scholarship

No abstract provided.

Protecting The Environment: Finding The Balance Between Delaney And Free Play, Geoffrey C. Hazard Jr., Howard C. Kunreuther

All Faculty Scholarship

No abstract provided.

The Article 9 Study Committee Report: Strong Signals And Hard Choices, Steven L. Harris, Charles W. Mooney Jr.

All Faculty Scholarship

No abstract provided.