Property Law and Real Estate Commons^™

Bounded Rationality And The Theory Of Property, Oren Bar-Gill, Nicola Persico

Notre Dame Law Review

Strong, property rule protection—implemented via injunctions, criminal sanctions, and supercompensatory damages—is a defining aspect of property. What is the theoretical justification for property rule protection? The conventional answer has to do with the alleged shortcomings of the weaker liability rule alternative: it is widely held that liability rule protection—implemented via compensatory damages—would interfere with efficient exchange and jeopardize the market system. We show that these concerns are overstated and that exchange efficiency generally obtains in a liability rule regime—but only when the parties are perfectly rational. When the standard rationality assumption is replaced with a more realistic bounded rationality assumption, …

Privatizing The Reservation?, Kristen A. Carpenter, Angela R. Riley

Publications

The problems of American Indian poverty and reservation living conditions have inspired various explanations. One response advanced by some economists and commentators, which may be gaining traction within the Trump Administration, calls for the “privatization” of Indian lands. Proponents of this view contend that reservation poverty is rooted in the federal Indian trust arrangement, which preserves the tribal land base by limiting the marketability of lands within reservations. In order to maximize wealth on reservations, policymakers are advocating for measures that would promote the individuation and alienability of tribal lands, while diminishing federal and tribal oversight.

Taking a different view, …

I Promise To Pay, Joshua Mitts

Faculty Scholarship

Consumers are more likely to keep a repayment promise they make themselves. When a scheduling conflict prevents a borrower from attending a mortgage closing, a power of attorney (POA) empowers a third party to promise that the borrower will repay the loan. On a matched sample of POA and non-POA loans, and comparing within borrower and within property, I link POAs to greater delinquency and foreclosure. Although POAs are uncorrelated with cash flow shocks, they reflect reduced promise keeping when borrowers undergo financial distress. This association vanishes for originator-servicers’ loans, which suggests that financial intermediation plays a role in consumer …

Opening Remarks: The Federalism Dimension Of Constitutional Property, Stewart E. Sterk

Articles

No abstract provided.

Is High-Finance An Extractive Sector?, Saskia Sassen

Indiana Journal of Global Legal Studies

The article examines some of the key features of high finance (henceforth, simply finance) from the angle of the mix of capabilities that constitute the sector. It has a radically different organizing logic from that of, for instance, the typical mass consumer-oriented corporation. The article posits that finance has de-bordered the narrowly defined notion of finance as simply "financial firms and markets." It emphasizes its capacity to financialize a growing range of material and non-material elements. This has also meant that the sector by now encompasses a very broad range of financial and nonfinancial institutions, different types of jurisdictions, a …

Charting A New Course In Cuba? Why The Time Is Now To Settle Outstanding American Property Claims, Marco Antonio Dueñas

Brooklyn Journal of International Law

The recent warming of relations between the United States and Cuba offered generations of Cubans; Americans; and Cuban Americans renewed hope for normalized relations. One obstacle—satisfactory resolution of property claims—stands in the way; which dates back to the Cuban government’s nationalization of all U.S. assets on the island. The Cuban Liberty and Democratic Solidarity Act of 1996 (the “Helms-Burton Act”) predicates resolution of these decades-old property claims by the Cuban government as an essential condition for the full resumption of economic and diplomatic relations between the two neighbors. Separated by only ninety miles of Caribbean Sea; but more than a …

Take This Job And Shove It: The Pragmatic Philosophy Of Johnny Paycheck And A Prayer For Strict Liability In Appalachia, Eugene "Trey" Moore Iii

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

Asarco Llc V. Atlantic Richfield Company, Ryan L. Hickey

Public Land & Resources Law Review

The Comprehensive Environmental Response, Compensation, and Liabiltiy Act, commonly known as CERCLA, facilitates cleanup of hazardous waste sites and those contaminated by other harmful substances by empowering the Environmental Protection Agency to identify responsible parties and require them to undertake or fund remediation. Because pollution sometimes occurrs over long periods of time by multiple parties, CERCLA also enables polluters to seek financial contribution from other contaminators of a particular site. The Ninth Circuit clarified the particuar circumstances under which contribution actions may arise in Asarco LLC v. Atlantic Richfield Co., holding non-CERCLA settlements may give rise to CERCLA contribution …

Rights-Weakening Federalism, Shitong Qiao

Faculty Scholarship

This article examines whether federalism protects land rights in China from two dimensions. I first compare national law with local institutions of eminent domain, revealing that local governments take much more land than the national government approves, frequently violating, tweaking, and challenging national law. I next examine the impact of interjurisdictional competition on the development of local land institutions, demonstrating that local governments are weakening individual land rights for the benefits of mobile capital. Overall, Chinese federalism weakens rather than strengthens individual land rights and should be called rights-weakening federalism.

This China case also has general theoretical implications. Leading property …

Getting Local Governments Where They Need To Go Without Taking Taxpayers For A Ride: "Cabs," Why They Are Used, And What Can Be Done To Prevent Their Misuse, Heather G. White

St. Mary's Law Journal

Abstract forthcoming

Feeding The Eco-Consumer, Alexia Brunet Marks

Publications

There is a lot of talk about making our food system more “sustainable,” and eco-consumers — those who consider environmental sustainability as an important purchasing priority — are making themselves heard. This growing consumer segment is rapidly gaining national attention for moving more sustainable products to the market, and for its willingness to pay more for these options. However, while economists normally predict that higher prices lead profit-minded suppliers to enter a market to meet a new and growing demand, this transition is not occurring at the pace one would expect.

This Article argues that land tenure status — whether …

Decision-Making And The Shaky Property Foundations Of Municipal Bankruptcy Law, Juliet M. Moringiello

Brooklyn Journal of Corporate, Financial & Commercial Law

Municipal bankruptcies are unpredictable. There are several reasons for this statement— municipal bankruptcies are rare, involvement of the state itself in the process varies according to the governing state law, and chapter 9, the Bankruptcy Code chapter governing the municipal bankruptcy process, has many gaps. Congress constructed the modern chapter 9 on a foundation of corporate bankruptcy law, a foundation whose roots—corporate finance—are significantly different from the rules governing municipal finance. In this Article, Professor Moringiello aims a spotlight on the property roots of private bankruptcy law and compares them to the promissory and statutory roots of municipal finance law …

The Limits Of Mobility And The Persistence Of Urban Inequality, Sheila Foster

Georgetown Law Faculty Publications and Other Works

David Schleicher's Article, Stuck! The Law and Economics of Residential Stagnation, draws much-needed attention to the consequences of declining interregional mobility of low-income workers. However, this Response argues that Schleicher's policy prescriptions evince a blind spot for the economic and racial stratification of disadvantaged populations within the successful metro regions these new migrants would enter. The concentration of highly skilled, educated, and affluent populations in the urban core, and the segregation and isolation of disadvantaged populations outside of it, impose additional costs on new migrants to access economic opportunities. Schleicher fails to sufficiently account for these costs, which offset …

A Cross-Sectional Exploration Of Household Financial Reactions And Homebuyer Awareness Of Registered Sex Offenders In A Rural, Suburban, And Urban County., John Charles Navarro

Electronic Theses and Dissertations

As stigmatized persons, registered sex offenders betoken instability in communities. Depressed home sale values are associated with the presence of registered sex offenders even though the public is largely unaware of the presence of registered sex offenders. Using a spatial multilevel approach, the current study examines the role registered sex offenders influence sale values of homes sold in 2015 for three U.S. counties (rural, suburban, and urban) located in Illinois and Kentucky within the social disorganization framework. Homebuyers were surveyed to examine whether awareness of local registered sex offenders and the homebuyer’s community type operate as moderators between home selling …

I Share, Therefore It's Mine, Donald J. Kochan

University of Richmond Law Review

No abstract provided.

Banks, Break-Ins, And Bad Actors In Mortgage Foreclosure, Christopher K. Odinet

University of Cincinnati Law Review

No abstract provided.

How Localism's Rationales Limit New Urbanism's Success And What New Regionalism Can Do About It, Timothy Polmateet

Fordham Urban Law Journal

No abstract provided.

The Housing Crash And The End Of American Citizenship, Matt Stoller

Fordham Urban Law Journal

No abstract provided.

Consumption Property In The Sharing Economy, Shelly Kreiczer-Levy

Pepperdine Law Review

Various doctrines from different areas of the law provide special legal protection for property that is produced and used for personal use, creating the legal category of "consumption property." Zoning, criminal procedure, discrimination, foreclosure and bankruptcy, taxes and eminent domain all treat property for consumption differently than commercial property. Recently, a new social phenomenon known as the sharing economy allows owners to rent out personal assets such as a room in their home, their private car, a bicycle, and even pets. The sharing economy challenges the foundational distinction between privately used property and commercial property and leads to fragmentation of …

Cultural Paradigms In Property Institutions, Taisu Zhang

Faculty Scholarship

Do “cultural factors” substantively influence the creation and evolution of property institutions? For the past several decades, few legal scholars have answered affirmatively. Those inclined towards a law and economics methodology tend to see property institutions as the outcome of self-interested and utilitarian bargaining, and therefore often question the analytical usefulness of “culture.” The major emerging alternative, a progressive literature that emphasizes the social embeddedness of property institutions and individuals, is theoretically more accommodating of cultural analysis but has done very little of it.

This Article develops a “cultural” theory of how property institutions are created and demonstrates that such …

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 …

The Impact Of The United States Tax Laws On International Technology Transfer: An Overview And Some Suggestion For Minimizing The Bite, Marcus B. Finnegan, Robert E. Mccarthy

Georgia Journal of International & Comparative Law

No abstract provided.

Rent Certainty Is Not Rent Control, Tom Dunne

Reports

The housing crisis and the debate about rent control should result in a beneficial change to the regulation of the sector but the opportunity could be lost for want of clarity of thinking about the nature of rent certainty and the distinction between it and rent control. At present rent is regulated by the Residential Tenancies Act 2004 (RTA 2004) which provides that rent can only change once a year and cannot be more than the market rent. Many argue a greater degree of rent certainty is required and that rent should not be allowed to increase by more than …

Heir Property In The African American Community: From Promised Lands To Problem Lands, Roy W. Copeland

Professional Agricultural Workers Journal

Abstract

African American landowners have been reluctant to take advantage of intergenerational succession laws which provide for an orderly transfer of property from one generation to the next. This reluctance has led to a prevalence of heir property. Heir property is created when a person dies intestate. Heir property has created an impediment to wealth accumulation and has contributed to African American land loss in America. Partition actions are a byproduct of heir property which has operated to accelerate the loss of real property in the African American community. The Uniform Partition of Heir Property Act provides for procedural safeguards …

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 …

Valuing Control, Peter Dicola

Michigan Law Review

Control over property is valuable in and of itself. Scholars have not fully recognized or explored that straightforward premise, which has profound implications for the economic analysis of property rights. A party to a property dispute may actually prefer liability-rule protection for an entitlement resting with the other party to liability-rule protection for an entitlement resting with her. This Article presents a novel economic model that determines the conditions under which that is the case—by taking account of how parties value control. The model suggests new opportunities for policymakers to resolve conflicts and to develop better information about property disputes …

Slides: Practicing Sustainability In Natural Resource Industries, Gary D. Libecap

Natural Resource Industries and the Sustainability Challenge (Martz Winter Symposium, February 27-28)

Presenter: Gary D. Libecap, Bren School of Environmental Science and Management and Economics Department, University of California, Santa Barbara, National Bureau of Economic Research (NBER)

10 slides

"Economic Property Rights" As "Nonsense Upon Stilts": A Comment On Hodgson, Daniel H. Cole

Articles by Maurer Faculty

Hodgson's (2015) critique of extra-legal 'property rights' - in this case, so-called 'economic property rights' - is right on target. This Comment contributes two further points to his critique. First, the notion of 'economic property rights' is based on what Gilbert Ryle (1949) referred to as a 'category mistake', conflating physical possession, which is a brute fact about the world, with the right or entitlement to possession, which is a social or institutional fact that cannot exist in the absence of some social contract, convention, covenant, or agreement. The very notion of a non-institutional 'right' is oxymoronic. Second, the fact …

German Reunification - The Privatization Of Socialist Property On East Germany's Path To Democracy, Michael J. Thomerson

Georgia Journal of International & Comparative Law

No abstract provided.

The Connection Between A Property-Based Legal System And National Prosperity: Example From A Divided Germany Reunified, O. Lee Reed, Florian A. Stamm

Georgia Journal of International & Comparative Law

No abstract provided.