Property
Tenant Screening Thirty Years Later: A Statutory Proposal To Protect Public Records
116 Yale L.J. 1344 (2007) Most consumers learn about tenant-screening reports only when a landlord points to an item on such a report as the reason for rejecting an application and provides the tenant with a copy of that report as required by law. Legal scholars have criticized these reports for more than thirty years, however, observing that they are prone to error, open to abuse, and generally contrary to established public policies. This Note examines existing mechanisms used to regulate these reports and finds them inadequate, endorsing instead one state’s approach of “choking” information flows by disclosing eviction records only when the landlord prevails in court. In a digital age in which personal information is easily aggregated, court records should not be a vehicle for automatic damage to an individual’s renting prospects and reputation.
Living History: How Homeowners in a New Local Historic District Negotiate Their Legal Obligations
116 Yale L.J. 768 (2007) American historic preservationists are increasingly emphasizing the need to preserve not only prominent landmarks, but also the vernacular architectural culture of "ordinary neighborhoods." Preserving such neighborhoods often requires convincing homeowners to agree to legal restrictions on how they maintain their homes, yet to date, there has been no empirical research on how homeowners have responded to the policy tradeoffs inherent in making such a decision. This Note fills that gap, using extensive original empirical research to examine how homeowners in New Haven's recently approved City Point Local Historic District viewed and managed their legal obligations. This Note then draws upon these data to develop policy recommendations for improving local preservation efforts nationwide.
Save the Cities, Stop the Suburbs?
116 Yale L.J. 598 (2006) Sprawl: A Compact History BY ROBERT BRUEGMANN CHICAGO: UNIVERSITY OF CHICAGO PRESS, 2005. PP. 306. $27.50 The City: A Global History BY JOEL KOTKIN NEW YORK: MODERN LIBRARY CHRONICLES, 2005. PP. 256. $21.95
Unpacking the Household: Informal Property Rights Around the Hearth
As Aristotle recognized in The Politics, the household is an indispensable building block of social, economic, and political life. A liberal society grants its citizens far wider berth to arrange their households than to choose their familial and marital relationships. Legal commentators, however, have devoted far more attention to the family and to marriage than to the household as such. To unpack the household, this Article applies transaction cost economics and sociological theory to interactions among household participants. It explores questions such as the structure of ownership of dwelling units, the scope of household production, and the governance of activities around the hearth. Drawing on a wide variety of historical and statistical sources, the Article contrasts conventional family-based households with arrangements in, among others, medieval English castles, Benedictine monasteries, and Israeli kibbutzim. A household is likely to involve several participants and as many as three distinct relationships--that among occupants, that among owners, and that between these two groups (the landlord-tenant relationship). Individuals, when structuring these home relationships, typically pursue a strategy of consorting with intimates. This facilitates informal coordination and greatly reduces the transaction costs of domestic interactions. Utopian critics, however, have sought to enlarge the scale of households, and some legal advocates have urged household members to write formal contracts and take disputes into court. These commentators fail to appreciate the great advantages, in the home setting, of informally associating with a few trustworthy intimates. Read Professor Ellickson's Pocket Part Essay adapted from this Article. Read Professor Shoshana Grossbard's Response, Repack the Household: A Response to Robert Ellickson’s Unpacking the Household. Read Professor Robert Pollak's Response, Bargaining Around the Hearth.
Evolution and Chaos in Property Rights Systems: The Third World Tragedy of Contested Access
115 Yale L.J. 996 (2006) According to conventional law-and-economics theory, private property rights tend to evolve as resource values rise. This optimistic assessment fails to explain the development of open access in many Third World property systems. Indeed, while the evolution of property has been studied extensively, scholars have paid relatively little attention to the evolution of open access itself. This Essay presents a theoretical analysis of open access that focuses on contested institutional interactions between laws, norms, and agreements. It argues that rising resource values are more likely to lead to open access than private property when the institutional environment is characterized by competing legal and norm-based systems. The Essay concludes that to understand property failures in contemporary Third World circumstances, we must move beyond conventional evolutionary analysis to taxonomic formulations based on the nature and interaction of property enforcement arrangements.
Jurisdictional Competition for Trust Funds: An Empirical Analysis of Perpetuities and Taxes
115 Yale L.J. 356 (2005) This Article presents the first empirical study of the domestic jurisdictional competition for trust funds. To allow donors to exploit a loophole in the federal estate tax, since 1986 a host of states have abolished the Rule Against Perpetuities as applied to interests in trust. To allow individuals to shield assets from creditors, since 1997 a handful of states have validated self-settled asset protection trusts. Based on reports to federal banking authorities, we find that, on average, through 2003 a state's abolition of the Rule increased its reported trust assets by $6 billion (a 20% increase) and increased its average trust account size by $200,000. By contrast, our examination of validating self-settled asset protection trusts yielded indeterminate results. Our perpetuities findings imply that roughly $100 billion in trust funds have moved to take advantage of the abolition of the Rule. Interestingly, states that levied an income tax on trust funds attracted from out of state experienced no observable increase in trust business after abolishing the Rule. Because this finding implies that abolishing the Rule does not directly increase a state's tax revenue, it bears on the study of jurisdictional competition. In spite of the lack of direct tax revenue from attracting trust business, the jurisdictional competition for trust funds is patently real and intense. Our findings also speak to unresolved issues of policy concerning state property law and federal tax law.
A Walk Along Willard: A Revised Look at Land Use Coordination in Pre-Zoning New Haven
115 Yale L.J. 116 (2005) This Note seeks to forge a richer understanding of the costs and benefits of zoning. To accomplish its goal, this Note assesses and critiques Andrew Cappel's A Walk Along Willow. This Note asks and answers three questions: (1) Are Cappel's findings about land use patterns replicated in areas more representative of the city? (2) Did Cappel correctly assess New Haven's initial encounter with zoning in the 1920s? and (3) Was the implementation of zoning in New Haven worthwhile? This Note quantitatively demonstrates the serious tradeoffs between government regulation and strong private property rights, and concludes that previous studies of New Haven have oversimplified the knotty problems posed by land use regulation.
Of Property and Federalism
115 Yale L.J. 72 (2005) 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 individual choice in property law by inducing state competition over property regimes. Drawing on the scholarly literature examining state competition for corporate law and competition over the provision of local public goods, the Essay constructs an open property system that creates an adequate incentive for the states to offer new property regimes and allows individuals to adopt them without relocating to the offering state. This Essay also has important implications for the burgeoning literature on the numerus clausus principle, under which the list of legally permissible property regimes is closed. The Essay argues that in a federal system, it is socially desirable to expand the list of property forms to include certain out-of-state forms.
The Creation of Homeownership: How New Deal Changes in Banking Regulation Simultaneously Made Homeownership Accessible to Whites and Out of Reach for Blacks
115 Yale L.J. 186 (2005) The Federal Government, in creating the section 203(b) mortgage insurance program during the New Deal, transformed homeownership in America into the main way that middle-class households build wealth. In the first three decades of the program's existence, however, this wealth-building opportunity was not shared with African-Americans. This Note reveals a pervasive, previously ignored regulatory system at both the state and federal level that gave the section 203(b) program a monopoly in offering the kinds of loans that first-time homebuyers needed. These statutes meant that even nongovernmental entities could not offer most African-Americans the opportunity to become homeowners.
Property in All the Wrong Places?
114 Yale L.J. 991 (2005) In Who Owns Native Culture? and Public Lands and Political Meaning, an anthropologist and a historian document an ever-increasing deployment of property categories in two quite different domains: native people's recent cultural claims in the first book and the longer story of the United States's public rangelands in the second. Both authors take a jaundiced view of this growth in propertization, arguing that in their respective subjects, property rhetoric paralyzes fluid and negotiated problem solving while undermining respectful relationships among parties. This Review suggests, however, that both authors may be underestimating the ability of property institutions to morph into new and useful forms--forms that can aid wide-ranging negotiations and enhance respect and understanding among the participating persons and groups.
The Right To Destroy
114 Yale L.J. 781 (2005) Do you have the right to destroy that which is yours? This Article addresses that fundamental question. In contested cases, courts are becoming increasingly hostile to owners' efforts to destroy their own valuable property. This sentiment has been echoed in the legal academy, with recent scholarship calling for further restrictions on owners' rights to destroy cultural property. Yet this property right has received little systematic attention. The Article therefore examines owners' rights to destroy various forms of property, including buildings, jewelry, transplantable organs, frozen human embryos, patents, personal papers, and works of art. A systematic treatment of the subject helps support a qualified defense of the right to destroy one's own property. For example, an examination of American laws and customs regarding the disposition of cadaveric organs helps one understand and weigh the expressive interests that prompt people to try to destroy jewelry via will. Similarly, an examination of patent suppression case law points toward a form of ex ante analysis that has been deemphasized in opinions involving the destruction of buildings and other structures. And an analysis of cases involving the destruction of frozen human embryos may shed light on creators' rights to burn unpublished manuscripts or works of art. In advocating a more unified treatment of destruction rights, the Article argues that greater deference to owners' destructive wishes often serves important welfare and expressive interests. The Article also critiques existing case law that calls for particular hostility toward will provisions that direct the destruction of testators' valuable property. Courts and commentators have not given persuasive justifications for restricting testamentary destruction. The Article proposes a safe harbor provision whereby sincere testators who market future interests in their property during their lifetimes and forgo the market prices for those future interests can have their destructive wishes enforced.
The Federalist Dimension of Regulatory Takings Jurisprudence
114 Yale L.J. 203 (2004) Federalism concerns, underappreciated in the takings literature, play an important role in shaping the Supreme Court's takings jurisprudence. The Takings Clause does not guarantee any particular property rights; instead, the Clause protects primarily against change in background state law. As a result, the nature and scope of constitutional protection depends heavily on background principles of state law in effect at the time of a challenged enactment. Federalism concerns, therefore, prevent the Supreme Court from articulating and enforcing a comprehensive national takings standard. Instead, the Court's role in the constitutional scheme is to articulate categorical rules that address difficulties that cut across state lines, while leaving primary responsibility for monitoring local land use regulation to state law and state courts. State courts, in turn, should view the Court's Penn Central balancing test not as a finely calibrated analysis of constitutional limits, but as a broad delegation of authority.
Appurtenancy Reconceptualized: Managing Water in an Era of Scarcity
113 Yale L.J. 1909 (2004) I. THE NEED TO REASSESS REGULATED RIPARIANISM Until recently, the eastern United States has been blessed with an abundance of water; unlike the arid West, shortages in the East have historically been "rare and short-lived." During the past few decades, however, water has increasingly become scarce, due to recurring droughts and burgeoning urban and suburban populations. A severe drought struck the East Coast in 2002, forcing residents in rural Maine to stop flushing toilets and washing dishes, significantly damaging crops in the Midwest, and leading New Jersey to ban lawn watering. But that drought was only the latest and harshest of several that have hit the region since the 1980s. Rapid population growth and commercial development in and around eastern cities have also contributed to shortages, in some cases leading to interstate disputes. Scientists predict that erratic precipitation patterns will persist, producing recurring droughts in years to come; continued growth in demand will only exacerbate the consequences of weather shifts. For policymakers, water shortages present three central challenges. First and most obviously, scarcity reminds us of the limits of our natural resources, and forces us to consider conservation measures. Second, scarcity requires that we assess the efficiency of water allocation and usage. Third--especially in the context of water, a universally necessary resource--equity demands that basic needs be met, and that one group of users not be allowed to exclude another group from an essential resource. In recent decades, water shortages have compelled eastern lawmakers to face these three issues--conservation, efficiency, and equity--directly. The result has been growing dissatisfaction with the legal regime that had historically governed the distribution of water rights in the East: common law riparianism.
Property Rights and Sacred Sites: Federal Regulatory Responses to American Indian Religious Claims on Public Land
113 Yale L.J. 1623 (2004) The courts and Congress have left sacred sites protection in the hands of land management agencies, and although many feared this decision would be disastrous, land agencies have actually embraced their role and sought to accommodate Indian religions and protect their sacred sites. Furthermore, agency accommodation is actually better for society as a whole than the broader judicial and legislative protections typically advocated by sacred sites supporters. Agency accommodation avoids the disadvantages of broad categorical protection while still serving as a strong method for preserving sacred sites. Although land agencies have had the role of sacred sites protectors thrust upon them, they seem to have turned out to be ideally suited for the job.
Limiting Locke: A Natural Law Justification for the Fair Use Doctrine
112 Yale L.J. 1179 (2003) Focusing a discussion of intellectual property on a 300-year-old text may seem unusual, but John Locke's Two Treatises of Government has an uncommon place in American intellectual property theory. Historically, Lockean natural rights informed the Framers' understanding of intellectual property law. Courts also have a long history of using natural law justifications in intellectual property cases. The Lockean perspective has been particularly appealing to theorists because of its ability to justify widely varying property systems, ranging from expansive communitarianism to subsistence-worker-based capitalism. Although modern intellectual property doctrine has attempted to disavow its association with natural law justifications, some debate the ability of courts to adjudicate intellectual property claims without consulting natural law principles. Revisiting Locke for a theory of intellectual property has become vital because of two important recent shifts in doctrine and scholarship. First, statutory and doctrinal innovations have continued to expand private intellectual property rights. Second, academics have increasingly advocated the importance of the public domain as a way of limiting the expansion of private property rights. One recent example of the conflict between private intellectual property rights and the public domain is Eldred v. Ashcroft, upholding the Sonny Bono Copyright Term Extension Act, which extended the duration of a copyright to the life of the author plus seventy years. While the government's brief advocating for the copyright extension emphasized the need for fairness to authors, the petitioners' brief highlighted that "[p]etitioners are various individuals and businesses that rely upon speech in the public domain for their creative work and livelihood." These arguments were mirrored by amici, including the Recording Industry Association of America (RIAA) on the government's side, which emphasized the importance of "fair compensation of authors," and a group of fifty-three law professors, who stated that "[a]mici are in particular concerned about the recent, rapid expansion of copyright scope and duration, at the expense of the public domain." Scholars have seen Lockean theory as an essential tool in reconciling these arguments because the main thrust of Locke's theory is the reconciliation of strong private property rights with a common of materials available to all. Locke argues that laborers have a private property right in the products of their labor because individuals mix their labor with materials from the common that are free for all to use. The private property right in an individual's labor is mixed into the product of labor, and thus the private property right also attaches to the product of labor. He supports this argument by adding natural law principles that must be followed to maintain exclusive property rights. The natural law principle that has been most commonly considered by scholars is the sufficiency proviso, which requires that the laborer not take too many materials out of the common. Two substantial criticisms are often directed at Lockean theory. First, scholars argue that even though Locke claims to reconcile a robust common with strong private property rights, his property rights swallow the common. Thus, the object of Lockean theorists, as mirrored in the title of this Note, is often concerned with limiting the scope of the Lockean property right. Second, scholars argue that the sufficiency proviso cannot be fulfilled in a morally compelling way because the common of tangible goods is inherently scarce. Previous scholarship concerning Lockean theories of property rights in intangible goods has focused on the ability of the nonrivalrous characteristic of intangible goods to eliminate the scarcity problem. This scholarship began with the publication of two influential articles, one by Justin Hughes in 1988 and another by Wendy Gordon in 1993, and has been refined in the last decade. A fundamental difference between tangible goods and intangible goods, however, is that intangible goods are nonrivalrous, which means that they can be used by an infinite number of people in an infinite number of ways without harming the use value of any other person, including the initial producer. Previous scholarship has persuasively argued that because intangible goods are nonrivalrous, the common of intangible goods contains materials that are not subject to a scarcity problem and thus that Lockean theory does not fail when it is applied to intangible goods. Scholars have tended to overemphasize the importance of this claim, however, by conflating the Lockean common with a public domain. The Lockean common contains undeveloped materials, whereas a public domain is composed of developed goods. Although the Lockean common is quite useful for independent production, the nonrivalrous nature of intangible goods means that a public domain can be used to foster incremental innovation, which is much more valuable. This Note takes a different direction than previous scholarship by focusing on another of Locke's natural law principles, the waste prohibition. The waste prohibition forbids a laborer from wasting products of labor or portions of such products, with the violation resulting in the loss of private property rights in the portion of the product wasted. I define Lockean waste in the following way: Waste occurs where a unit of a product of labor is not put to any use. When scholars have considered the application of the waste prohibition to intangible goods previously, they have arrived at polar conclusions, with some asserting that waste rarely occurs and others claiming that waste always occurs. The waste prohibition is of negligible importance for tangible goods, but is immensely important when constructing a Lockean theory of intangible goods. The waste prohibition is largely a nonissue for tangible goods because one can exchange money--by definition a nonwasting good--for units of a product of labor that may be prone to waste. Laborers will thus have incentives to sell all the units they possess that they will not use and violations of the waste prohibition will be rare. The nonrivalrous nature of intangible goods can be characterized as the production of an unlimited number of "intangible units" at the initial creation of any intangible good. Although the limited number of units of a tangible good can usually be converted into nonwasting money, the unlimited number of intangible units suggests that the laborer will not be able or willing to convert all of the intangible units into money whenever any intangible good is produced. The combination of nonconversion and nonuse constitutes a violation of the waste prohibition. As the waste prohibition is enforced through the loss of property rights in the wasted intangible units, the waste prohibition creates what I call a Lockean fair use right. Price discrimination allows greater conversion of intangible units into money but is an imperfect solution due to practical difficulties in attaining perfect price discrimination. This Note also examines the implications of government regulation on Lockean intellectual property rights and compares a Lockean regime with current U.S. intellectual property doctrine and theory. The establishment of a government allows much more variety in the scope of private property rights under Lockean theory, but the Lockean fair use right binds civil governments in much the same way that it binds individuals in the state of nature. Although the theory and doctrine of copyright fair use shares many characteristics with Lockean fair use, the current U.S. fair use right is more limited than the Lockean right. One example considered in this Note is that strong government support for anticircumvention measures may violate Lockean principles if the ability to police the waste prohibition is not protected. An even larger difference is that there is no coherent patent fair use right in the United States, although such a right would be demanded under a Lockean regime. This argument will be fleshed out in the remainder of this Note. Part I introduces general Lockean concepts, focusing on the impacts of the nonrivalry of intangible goods on the common and the waste prohibition. Part II applies Lockean concepts in an economic framework, demonstrating a fair use right in a Lockean state of nature. Part III considers the transition of society into a civil government, with its attendant changes in the scope of property rights in intangible goods. Part III also applies the Lockean analysis of this Note to two areas of current intellectual property debate--the anticircumvention provisions in the Digital Millennium Copyright Act (DMCA) and the enforcement of drug patents in developing countries. Part IV concludes.