Feliu on From the Fox to Onlyfans: The Changing Landscape of Property Law @NovaLawReview

Vicenç Feliú, Nova Southeastern College of Law, is publishing From the Fox to Onlyfans: The Changing Landscape of Property Law in the Nova Law Review. Here is the abstract.

This law review article traces the rich evolution of American Property Law from its origins in Roman Law, through the influence of English Common Law, to its current complexities in the digital age. It highlights the continuous adaptation of property concepts to the evolving socio-political landscape, from fundamental principles like ownership and possession to the protection of intangible assets. The legacy of Roman Law, emphasizing property rights and contracts, laid the foundation for legal systems worldwide. The impact of English Common Law, with its doctrines of real property and equity, shaped American legal frameworks regarding ownership, title, and dispute resolution. Historical events such as the American Revolution and industrialization spurred significant developments in property law, leading to the recognition of new rights like water rights, environmental protection, and intellectual property. In the modern era, technological advancements present unique challenges, especially in intellectual property. Copyrights, patents, trademarks, and trade secrets are crucial for safeguarding innovation in a globalized economy. Issues like digital piracy, data privacy, and artificial intelligence continue to shape property law debates, emphasizing fairness, efficiency, and innovation promotion. This article underscores the enduring legacy of legal traditions and the capacity of property law to adapt to changing circumstances. By understanding its historical foundations and ongoing developments, we gain insight into how property law safeguards individual rights, drives economic growth, and fosters innovation in the United States and globally.

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Grajzl and Murrell on A Macrohistory of Legal Evolution and Coevolution: Property, Procedure, and Contract in Pre-Industrial English Caselaw

Peter Grajzl, Washington and Lee University, Department of Economics, and Peter Murrell, University of Maryland, Department of Economics, have published A Macrohistory of Legal Evolution and Coevolution: Property, Procedure, and Contract in Pre-Industrial English Caselaw. Here is the abstract.

We provide a quantitative macrohistory of the evolution and coevolution of three fundamental elements of English caselaw: property, contract, and procedure. Our dataset is derived from a comprehensive corpus of reports on pre-1765 English court cases. Leveraging existing topic model estimates, we construct annual time series of attention to each of the three legal domains and estimate a structural VAR. Property and procedure are affected for decades by their own shocks. Procedure and property coevolve. In contrast, contract adjusts quickly to its own shocks and does not coevolve with the other two areas of law. We identify the episodes and events outside the legal system that correspond to systemic shocks. Edward Coke was a shock to procedure. The commercial revolution raised attention to contract. The Glorious Revolution, interestingly, did not lead to elevated attention to property issues, but the Civil War and Interregnum did. The evolution of contract, while relatively autonomous from the internal dynamics of the legal system, was, of the three legal domains, least autonomous from society.

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Berger on Property to Race/Race to Property @bethanyrberger @UConnLaw

Bethany Berger, University of Connecticut School of Law, has published Property to Race/Race to Property. Here is the abstract.

In the United States, property and race shape each other. This has been true since colonization and is equally true today. First, property relationships shaped the distinct forms racism took for different racialized groups. Racism exists to explain and justify power and privilege of one group over another. But the goals of power and privilege vary across different groups, resulting in different stereotypes, legal and social barriers, and modes of control. This Article examines the racialization of African Americans, Indigenous peoples, ethnic Chinese, and racialized “off-White” ethnic groups to reveal the crucial role that a group’s relationship to valued resources plays in its distinct trajectory of racism. Second, racial relationships shaped property law for everyone in the United States. The power to foreclose for debts, the power of local governments to zone, the public goods attached to residence, the scope of the welfare state’s “new property”—in these areas and many more, efforts to control, exclude, and take from racialized groups changed what property means today. This Article reveals the hidden histories of racially neutral rules and shows how they have undermined the security and equitable distribution of property for all. Today, property law and rhetoric are often used to undermine measures that would increase the security, affordability, and autonomy that justify property in the first place. Revealing the racial roots of modern property rules, I hope, will create space for reform to achieve the liberatory and egalitarian norms that undergird our commitment to property.

Download the article from SSRN at the link.

Sawers on Race and Property After the Civil War: Creating the Right To Exclude

Brian Sawers, Georgetown University Law Center, is publishing Race and Property After the Civil War: Creating the Right to Exclude in volume 87 of the Mississippi Law Journal (2018). Here is the abstract.

This Article uncovers a lost history of property, showing the role that race and white supremacy played in the development of modern trespass law. Property law does not change in response to economic opportunities, evolving to ever-more efficiency. Instead, property law reflects political power. At times, the political process may reorient property law to produce a larger surplus. Oftentimes, politics produce redistribution from the weak to the powerful. States closed the range to coerce blacks into working for white landowners for low wages and under bad conditions. Southern society as a whole suffered from the planter’s greed. Low wages and cruel laws impoverished not only black and white sharecroppers, but the entire region. Changing property law was a core element of the program of legal aggression that began with the black codes and continued with Jim Crow.

The full text is not available from SSRN.

Mirow on Léon Duguit and the Social Function of Property in Argentina @fiulaw

M. C. Mirow, Florida International University College of Law, is publishing Léon Duguit and the Social Function of Property in Argentina in Léon Duguit and the Social Obligation Norm of Property: A Translation and Global Exploration (Paul Babie and Jessica Viven-Wilksch, eds., Cham: Springer, forthcoming). Here is the abstract.

Despite its early introduction to Argentina in 1911, the doctrine of the social function of property was not quickly appropriated into the Argentine legal system. Only after a period of more than thirty-five years did this concept of property find expression in this country through the Constitution of 1949, the Peronist constitution drafted under the guidance of the Arturo Enrique Sampay. Duguit's writings formed part of a broader understanding of the social function of property that was informed by various scholars and sources, and particularly by works on Christian humanism and the social doctrine of the Roman Catholic church. Although mentioned in the debates of the Argentine Constitution of 1949, Duguit was only one of a variety of sources employed by advocates of the doctrine, and his direct influence in the area was significantly less than one might expect considering the historical link between his lectures in Buenos Aires and the creation of the doctrine.

Download the essay from SSRN at the link.

Domingo on the Law of Property in Ancient Rome @EmoryLaw

Rafael Domingo, Emory University School of Law; University of Navarra, has published The Law of Property in Ancient Roman Law. Here is the abstract.

This paper addresses the Roman law of ownership and the rights that modified it, including, for instance, the rights of predial servitude and usufruct. Classic Roman jurists focused on private property over other kinds, such as sacred property and public property. Their doctrine of ownership was so influential that it has prevailed for centuries and even now maintains a substantial presence in the legal systems of the civil law tradition and in the realm of international law. There are even similarities to English property law, although English common law developed separately, based largely on feudal law.

Download the article from SSRN at the link.

Atuahene @ProfAtuahene on Takings as a Sociolegal Concept: An Interdisciplinary Examination of Involuntary Property Loss

Bernadette Atuahene, Chicago-Kent Coolege of Law, Illinois Institute of Technology, has published Takings as a Sociolegal Concept: An Interdisciplinary Examination of Involuntary Property Loss at 12 Annual Review of Law and Social Science 171 (2016). Here is the abstract.

This review seeks to establish takings as a respected field of sociolegal inquiry. In the legal academy, the term takings has become synonymous with constitutional takings. When defined more broadly, however, a taking is when a person, entity, or state confiscates, destroys, or diminishes rights to property without the informed consent of rights holders. Adopting a more expansive conception of takings lays the groundwork for a robust interdisciplinary conversation about the diverse manifestations and impacts of involuntary property loss, where some of the most valuable contributions are made by people who do not consider themselves property scholars. This review starts the conversation by bringing together the empirical literature on takings published between 2000 and 2015 and scattered in the fields of law, economics, political science, sociology, psychology, geography, and anthropology. Most importantly, a robust understanding of property's multiple values is required to fully comprehend the magnitude of the loss associated with takings, and this creates a space in which scholars can rescue property's political, cultural, emotional, and social value from the sizeable shadow cast by the overly dominant focus on its economic value.

The full text is not available from download from SSRN.

Zhang on Cultural Paradigms in Property Institutions

Taisu Zhang, Yale University Law School, is publishing Cultural Paradigms in Property Institutions in the Yale Journal of International Law. Here is the abstract.

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 a theory is particularly powerful in explaining large-scale institutional differences between societies. Empirically, it argues that, in the two centuries before large-scale industrialization, China, England, and Japan displayed systematic and fundamental differences in their regulation of property use and transfer. It further argues that these legal and institutional differences are best explained by certain aspects of social culture, specifically by the criteria for sociopolitical status distribution. Some of these criteria are distinctly “cultural” in the sense that they were probably generated by the widespread social internalization of moral values, rather than by utilitarian bargaining. Cultural paradigms can exist, therefore, in property institutions. If we assume, as conventional law and economics urges, that individuals generally approach property use and regulation through a self-interested and utilitarian mindset, their pursuit of personal utility can nonetheless be constrained or empowered by cultural norms of status distribution that determine their relative bargaining power.

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The Sovereignty of Property Rights

Larissa M. Katz, University of Toronto Faculty of Law, is publishing Property's Sovereignty in Theoretical Inquiries in Law. Here is the abstract.

This paper shows how property rights might be fundamental to the very nature of our legal order while admitting that the modern realities of taxation, regulation, and expropriation are not attacks on property rights as such. By distinguishing between a principle of sovereignty, which I argue constitutes the core authority of owners, and a principle of accession, which I argue regulates the distribution of benefits and burdens attached to the position, we can see how this is so. Attacks on property rights as such would be, rather, acts by the state that deny the basic sovereign authority of owners, by subordinating owners to the private choices of others.

Download the article from SSRN at the link.

Thinking Philosophically About Property

Manuel R. Vargas, University of San Francisco School of Law and College of Arts and Sciences, Department of Philosophy, is publishing Contested Terms and Philosophical Debates in Philosophical Studies. Here is the abstract.

There is a standard set of theoretical options that tend to be proposed in response to putative errors in ordinary thinking about some property. The two main options are forms of either eliminativism or revisionism. Roughly, eliminativism is the denial that the target property exists, and revisionism is the view that the property exists, even if people tend to have false beliefs about it. Recently, Shaun Nichols has proposed a third option: discretionism. Discretionism is the idea that some terms have multiple reference conventions, so that it may be true to say with eliminativists that the property does not exist, and true to say with revisionists (and others) that the property does exist. This article explores the viability of discretionism, and argues that it faces serious difficulties. Even if the difficulties faced by discretionism can be overcome, it is unclear that discretionism secures anything beyond what is already available to standard revisionist views. The article concludes with some reflections about Nichols’ account of the bare retributive norm.

Download the article from SSRN at the link.

The Origins and History of Land Registration In Scotland

Kenneth Reid, University of Edinburgh School of Law, is publishing From Registration of Deeds to Registration of Title: A History of Land Registration in Scotland in Land Registration (George L. Gretton and Kenneth G. C. Reid, eds.; Edinburgh: Avizandum Publishing Ltd. 2016). Here is the abstract.

The origins of land registration in Scotland lie in a series of statutes of the sixteenth century. A later Act of 1617, still in force today, set up a national system of deeds registration. There was a choice between registration in a local register or in a central register in Edinburgh (the General Register of Sasines); and registration was constitutive of the real rights which the deeds sought to create. From the beginning the registers were open to the public. These early developments were a source of national pride. Towards the end of the seventeenth century, for example, Sir George Mackenzie commented that ‘Scotland hath above all other Nations, by a serious and long experience, obviated most happily all frauds, by their publick Registers’. By the end of the nineteenth century, however, the pioneer country seemed in danger of being left behind. Beginning in South Australia in 1858, the ‘Torrens’ system of registration of title spread throughout the Australian colonies and then to many other parts of the British Empire. And in England, too, which had no national land register until the nineteenth century, the first hesitant steps were being taken for the introduction of registration of title. In the light of these developments, a Royal Commission was appointed in Scotland in 1906 to consider a switch from registration of deeds to registration of title but its members were unable to reach agreement. It was left to a second government committee, chaired by Lord Reid and reporting in 1963, to recommend the introduction of registration of title. The clinching argument was an expected reduction in transaction costs, and hence the prospect of cheaper conveyancing. Legislation to implement the Reid Committee’s recommendations was eventually passed in 1979. This paper explores the evolution of land registration in Scotland, analyses the key legal developments, and offers an evaluation of the move from registration of deeds to registration of title.

Download the essay from SSRN at the link.

This Sporting Life

Gregory S. Alexander, Cornell Law School, is publishing The Sporting Life: Democratic Culture and the Historical Origins of the Scottish Right to Roam in the University of Illinois Law Review. Here is the abstract.

In 2003, the Scottish Parliament enacted the Land Reform (Scotland) Act, which, among other reforms, grants to “everyone” a right to access virtually all land in Scotland for a wide variety of purposes, including recreation, educational activities, and even some commercial or for-profit activities. Legal recognition of this broad-ranging “right to roam” comes after more than a century of debate over the public’s right to access privately-owned land in the Scottish Highlands. This paper is the first historical account of the origins of the remarkable Scottish right to roam. It sets the debate over the right to roam with a clash between two different visions of the sporting life: One, older, rooted in the Victorian and Edwardian periods, viewed the sporting life as one of hunting, aided by the use of modern technology — rifles and such — and much older technology in the form of dogs and horses. The other vision is of more recent vintage. It is a vision of contact with nature through walking, hiking, and similar forms of unmediated interaction with nature. Curiously, both visions of the sporting life claimed the mantle of preservation and conservation. The paper argues that the culture of unmediated contact with nature ultimately prevailed as a democratic culture became more entrenched in both politics and society.

Download the article from SSRN at the link.

Protest As Performance

 

Lucy Finchett-Maddock is publishing Protest, Property and the Commons: Performances of Law and Resistance with Routledge (the publication date is given as 2016). Here is a description of the contents from the publisher's website.

Protest, Property and the Commons: Performances of Law and Resistance examines the occupation of space as a mode of resistance. Drawing on the phenomena of social centres, as radical political communities that use the space of squatted, rented, or owned property, the book considers how such communities offer an alternative form of law to that of the state. It then goes on to address the relationship between this form of law and recent protest phenomena, such as the Occupy movement. How does the performance of an alternative law enact a ‘commons’? How and why is this manifested in the legal occupation of space? And what does this relationship between space and the commons indicate about the criminalisation of the occupation of space? Contributing to an ongoing re-imagination of the law of property, Protest, Property and the Commons will be of interest to anyone concerned with the role of law in political protest.