From Volume 92, Number 4 (May2019) Divergence in Land Use Regulations and Property Rights Christopher Serkin[*] INTRODUCTION […]
From Volume 92, Number 4 (May 2019) from nuisance to environmental protection in Continental Europe Vanessa […]
In this Article, we study rules that solve the conflict between the original owner and an innocent buyer of a stolen or embezzled good. These rules balance the protection of the original owner’s property and the buyer’s reliance on contractual exchange, thereby addressing a fundamental legal and economic trade-off. Our analysis is based on a unique, hand-collected dataset on the rules in force in 126 countries. Using this data, we document and explain two conflicting trends. There is a large amount of first-order divergence: both rules that apply to stolen goods and those that apply to embezzled goods vary widely across countries. Yet, there is also remarkable second-order convergence: virtually all legal systems protect the innocent buyer more strongly if the good was embezzled (rather than stolen) and if she purchased it in an open market, at an auction, or from a professional seller (as opposed to a private sale). We show that, while divergence is attributable to varying cultural values, convergence can be rationalized using a classic functional approach: these rules harmonize the owner’s incentives to protect property and the buyer’s incentives to inquire about title.
This Article utilizes a unique data set of property laws in 119 jurisdictions in the world to test convergence/divergence theories in comparative property law. Our theory predicts that first, because legal systems face similar positive transaction costs in delineating property rights, the structure of property law among all jurisdictions in the world will converge or remain similar since some time in the distant past. Second, our theory posits that the style of property law will tend to converge when the doctrines in question are isolated, but diverge when they are interconnected. Our data and descriptive analysis support the theory. Doctrines regarding possession, sales, condominiums, tenancies in common, and limited property rights serve as prominent examples.
Human beings should live in places where they are most productive, and megacities, where information, innovation, and opportunities congregate, would be the optimal choice. Yet megacities in both China and the United States are excluding people by limiting the housing supply. Why, despite their many differences, is the same type of exclusion happening in both Chinese and U.S. megacities? Urban law and policy scholars argue that Not-In-My-Back-Yard (“NIMBY”) homeowners are taking over megacities in the U.S. and hindering housing development. They pin their hopes on an efficient growth machine that makes sure “above all, nothing gets in the way of building.” Yet the growth-dominated megacities of China demonstrate that relying on business and political elites to provide affordable housing is a false hope. Our comparative study of the homeowner-dominated megacities of the U.S. and growth-dominated megacities of China demonstrates that the origin of exclusionary megacities is not a choice between growth elites and homeowners, but the exclusionary nature of property rights. Our study reveals that megacities in the two countries share a property-centered approach, which prioritizes the maximization of existing property interests and neglects the interests of the ultimate consumers of housing, resulting in housing that is unaffordable. Giving housing consumers a voice in land use control and urban governance becomes the last resort to counteract this result. This comparative study shows that the conventional triangular framework of land use—comprising government, developers, and homeowners—is incomplete, and argues for a citizenship-based approach to urban governance.
People do not like billboards. These off-site signs, or signs advertising goods and services not available in the near vicinity, allegedly create visual blight, cheapening communities and cluttering the landscape. In addition, they have proven to be hard to control. Local government ordinances aimed at limiting the spread of outdoor advertising and controlling its visual impacts are continually challenged by the well-funded billboard industry. While courts have developed criteria, which often incorporate guidance from the Supreme Court, for determining whether billboard-control ordinances are legal,5 new technologies in the outdoor advertising industry require local governments to update their regulations and include new definitions to maintain visual protections. Specifically, supergraphics, or oversized signs painted on or attached to building façades, are becoming popular in many areas. This new type of sign results in the same negative visual impact as traditional billboards and is often significantly larger in size. In addition, because supergraphics are often vinyl or mesh affixed to a building façade, they can be erected without the investment in infrastructure required to create a traditional, pole-standing billboard. This means that supergraphics are easier and cheaper to erect, while often creating much more visual disruption.
Property is the law of lists and ledgers. County land records, stock certificate entries, mortgage registries, Uniform Commercial Code filings on personal property, copyright and patent registries of interests in intellectual property, bank accounts, domain name systems, and consumers’ Kindle e-book collections in the cloud are all merely entries in a list, determining who owns what.
Each such list has suffered a traditional limitation. To prevent falsification or duplication, a single entity must maintain the list, and users must trust (and pay) that entity. As a result, transactions must proceed at significant expense and delay. Yet zero or near-zero transaction costs are the fuel of Internet scalability. Property transactions have not yet truly undergone an Internet revolution at least partly because they are constrained by the cost of creating centralized trusted authorities.
This Article reimagines the contours of digital property if that central constraint were removed. There is every reason to believe it can be. Increased interest in cryptocurrencies has driven the development of a series of technologies for creating public, cryptographically secure ledgers of property interests that do not rely on trust in a specific entity to curate the list. Previously, the digital objects that users could buy and sell online were not rivalrous in the same way as offline physical objects, unless some centralized entity such as a social network, digital currency issuer, or game company served the function of trusted list curator. Trustless public ledgers change this dynamic. Counterparties can hand one another digital, rivalrous objects in the same way that they used to hand each other gold bars or dollar bills. No intermediary or curator is needed.
In the last several decades, the legal academy has devoted a great deal of attention to developing a cogent definition of “property.” During this period, scholars have grappled with the related question of how intellectual property rights – namely, patents, copyrights, trademarks, and trade secrets – fit within emergent property theories. By and large, the academy has concluded that intellectual property qualifies as “property” under all of the relevant analytical rubrics.
As expected, both policy makers and the judiciary have drawn upon the theoretical categorization of intellectual property as “property” when fashioning the normative rules that govern the recognition, allocation, and protection of intellectual property rights. In many instances, traditional property law concepts have been imported into intellectual property law with little or no consideration given to the theoretical and utilitarian distinctiveness of intellectual property. Nowhere is this wholesale importation – and its shortcomings – more apparent than in the law governing sentencing for federal crimes involving the violation of intellectual property rights.
The role of the Takings Clause of the Fifth Amendment in requiring compensation for government actions that treat landowners unequally is seldom explored. This is remarkable given that the Supreme Court has said for more than a century that the Takings Clause “prevents the public from loading upon one individual more than his just share of the burdens of government, and says that when he surrenders to the public something more and different from that which is exacted from other members of the public, a full and just equivalent shall be returned to him.”
One might infer from this description of the Fifth Amendment that the regulatory takings doctrine should have developed as a comparative right (a species of equal protection law)—a right to be treated legally the same as other property owners in a community, or to receive compensation when differential treatment is justified. Indeed, when the Supreme Court first held that the Fourteenth Amendment incorporated the rule that government may not take private property without just compensation, it relied on the Equal Protection Clause, not the Due Process Clause.