This bizarro version of 42 U.S.C. Sec. 1982 would cause non-whites constitutional injuries of several types, and would fail to effectuate an underlying constitutional purpose of equality.  We might enumerate, at a minimum, the following types of injuries. (1) There [...]]]> Suppose that, immediately after the Civil War, instead of 42 U.S.C. Sec. 1862, the Congress had enacted a statute that provided: “All citizens of the United States shall have the same right in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real and personal property, except that as to non-whites some other name shall be used instead of ‘property’; and for the interests of non-whites parallel to property, names other than ‘purchase, lease, sell, hold, and convey’ shall be used.”

This bizarro version of 42 U.S.C. Sec. 1982 would cause non-whites constitutional injuries of several types, and would fail to effectuate an underlying constitutional purpose of equality.  We might enumerate, at a minimum, the following types of injuries. (1) There would be widespread confusion, for some time, as to what the new and supposedly equal rights of non-whites were, because those rights are to be called by different names.  The confusion would be increased if different states chose different new for the new institution parallel to property.  (2) In order to carry out the statute’s command to use different names, everyone involved in an interaction, transaction, or event concerning property or ownership would be required to sort the participants into whites and non-whites just to talk legal talk accurately.   The bizarro statute endorses and in many circumstances requires the continued practice of legally distinguishing whites and non-whites.   (3) Non-whites would have to expend considerable effort teaching and explaining the new “non-property” terminology in order to claim the equal rights supposedly granted by the statute. (4) In order to comply with the law’s nomenclature distinctions, legally non-white individuals who might pass for white would be forced to identify themselves as non-white wherever their “property” rights were involved.  (5) Confusion over the new, unfamiliar terminology would result in the denial of the tangible equal rights the legislature intended to grant, both because of genuine confusion, and because a feigned confusion could be used by persons seeking to avoid the statute’s command of equality as to the institution of property.

An unlikely scenario?  This argument is adapted from the draft of an amicus brief on behalf of the New Jersey State Bar Association, to be filed in the Lewis v. Harris II litigation pending before the New Jersey Supreme Court.  I described that litigation in a post here yesterday, and (I must disclose) I helped write this part of this amicus brief.  The litigation is about a different institution, though – not property, but “marriage” and its bizarro double, “civil union”.

Providing supposedly equal rights and benefits to marriage with a different name, as “civil union” does under current New Jersey law,  (1) creates and perpetuates confusion over the nature of the rights afforded same-sex couples.   “Marriage” is a word folks understand; “civil union” not so much.  (2) A dual naming structure requires continual sorting of folks into same-sex and opposite-sex couples, which will be understood as a sorting into gay and straight couples.  The dual naming approach lends the imprimatur of the state to a distinction with a history of invidious discrimination, and by requiring the sorting serves to perpetuate prejudice and discrimination.  (3) Same-sex couples and their families must expend considerable effort to claim the rights supposedly afforded by “civil union”, in part because of the different name for supposedly identical rights. (4) In some circumstances the different name forces a member of a same-sex couple  to disclose her/his same-sex couple status (read homosexual status) when s/he otherwise would not choose to do so. (5) Confusion due to the different name blocks access to the rights and benefits supposedly granted, both through genuine misunderstanding and because the different name provides opportunities to feign ignorance of the law.

Court decisions in four states — Massachusetts, California, Connecticut, and Iowa — have rejected an approach to marriage equality that allows a state to provide supposedly equal rights and benefits by a different name.   Vermont’s Supreme Court allowed it in 1999, but last year, after a commission report and eight plus years of experience with “civil union”, Vermont replaced “civil union” with marriage.  New Hampshire also enacted “civil union” and then in 2009 moved to marriage.  In 2006 the New Jersey Supreme Court allowed a different name, at the legislature’s discretion, but over a ringing dissent.  That 2006 decision is now under challenge, based in significant part on fact-finding by the New Jersey Civil Union Review Commission in a 2008 report.

The reasoning in the court cases is sometimes quite brief.  Typically it invokes a principle that separate can never be equal and always results in stigma.  See Brown v. Board of Education, 347 U.S.  483, 492 – 95 (1954).  That’s not wrong, but one could say more.  The Connecticut decision is helpful here.  It relies inter alia on an old state employment discrimination decision that held a newspaper liable for aiding and abetting sex discrimination by publishing separate employment advertisements for men and women.  The newspaper didn’t deny anyone a job based on sex; it simply facilitated a process of sorting job opportunities into sex categories, facilitating discrimination by others.   Kerrigan v. Comm’r of Public Health, 957 A. 407, 418 (Conn. 2008) (relying on Evening Sentinel v. National Organization for Women, 357 A.2d 498 (Conn. 1975)).

“Civil union”  in New Jersey (or full-rights “domestic partnership” status in California, Oregon, and  Washington) is not bad as a halfway measure.  That’s especially worth saying because a civil union bill has just reached the desk of Hawaii Governor Linda Lingle, who has 45 days to sign or veto it.  But a differential name for a fundamental social and legal category perpetuates inequality, creating an injury of constitutional dimension.  For deeply entrenched institutions — property and marriage alike — the official name makes a huge difference, not only in terms of granting or withholding a traditionally honored status, but of whether the state chooses to undermine or endorse a diffuse social process of sorting supposedly equal rights-holders into stigmatized and often suspect categories.

Tradeable carbon emissions allowances are an example of the latter.  There’s a lot to like in the cap-and-trade programs proposed under the Waxman-Markey and Kerry-Boxer bills.  I hope some robust version of them passes and becomes law.  But one sticky issue that needs to be resolved is how [...]]]> If the last two years of American economic life have demonstrated anything, it is that property rights are not static.  Sometimes things that were once private property become public property (see, e.g., Motors, General).  Sometimes things that were once public property become private property, then become public property again, before they presumably become private property again (see, e.g., Mae, Fannie).  And sometimes things that were once considered inherently communal and thus inamenable to private property rights at all, become divided and privatized (see,e.g., the air).

Tradeable carbon emissions allowances are an example of the latter.  There’s a lot to like in the cap-and-trade programs proposed under the Waxman-Markey and Kerry-Boxer bills.  I hope some robust version of them passes and becomes law.  But one sticky issue that needs to be resolved is how initial allowances to fill airspace with carbon gases should be allocated.  Options include auctioning off all of the allowances, giving the allowances to existing carbon producers, and, most politically palatable, something  in between – some mixed proportion of free allocations and auctions.

Economist Robert Stavins, in the Coasean tradtion, has insightfully argued that  (with some caveats, including that transaction costs in this cap-and-trade program are similar to the transaction costs in others) the initial allocation of allowances doesn’t matter in most significant ways:  it will have no effect on the distribution of allowances after trading, and will have no effect on the total magnitude of emissions and their attendant social costs.

But there is another factor economists have not addressed, that could effect the total magnitude of emissions and their attendant social costs, and that may well depend in part on the method of initial allocations: compliance.

Law Professor Christine Parker and political scientist Peter May, among others, have demonstrated that compliance with business regulation is highest when the regulated businesses believe that the regulatory regime is fair.  Lower levels of compliance reduce the effectiveness of the regulation in producing the desired outcome, and increase the costs of achieving it.  In the world of carbon emissions, this would mean a higher total magnitude of emissions and a reduced benefit to the public through the higher costs required to achieve them.

My research into Icelandic fisheries suggests that in moving natural resources from communal to private property through cap and trade programs, initial allocations of rights do have an important effect on the perceived fairness of the regulatory regime, and thus on the willingness of the regulated to comply with it.

In Iceland, the government decided to protect fish stocks by freely allocating tradeable fishing rights and implementing catch quotas.  Permits were issued to fishing vessel owners based on their average catches during a three-year test period.  New entrants to the industry must now buy their way in by purchasing or leasing rights from others through the Icelandic Quota Exchange.  Although the system has been successful in reducing the overall catch, the perception that it is unfair has led to open defiance.  In an extraordinary case before the Icelandic Supreme Court, one fishing company did openly what many apparently do quietly — defied the system on the grounds that it was unfair.  

Transactions costs, of course, are inevitable, but it is not transaction costs that have produced resistance to the Icelandic system.  Rather, resistance is itself is a type of transaction cost, broadly construed, produced by the perceived unfairness of the initial allocation of rights.  In other words, the initial allocation of rights does indeed effect the overall effectiveness of a private property system. 

There has been considerable uproar over the potential free allocation rights to current carbon emissions producers.  Whether or not, as a matter of classical economic theory, the initial allocation of rights should effect the overall effectiveness of the program, the perception of fairness or unfairness will probably effect compliance with the system, and that in turn will effect its overall effectiveness.  It is important, therefore, for policy makers to bear in mind that the perceived fairness of initial allocations of property rights does indeed matter.

I was watching the NFL Vikings carve up the Bears yesterday, trying to decide what to post about first, and my eyes were drawn not to quarterback Brett Favre, running back Adrian Petersen . . . or even the freak who dresses like a viking and leads cheers inside the Metrodome, the Vikings’ domed stadium.  I kept looking at the shots of the stadium itself, and thinking about two recent court orders. 

One was issued last Monday, lifting an injunction on the previous week’s sale by auction of the 94,000 square foot, 80,300 seat Pontiac Silverdome, along with an adjacent fieldhouse and 127 acres of land.  There were four bids.  The winning bid? [...]]]> I’m very happy to be back adding my two cents to Concurring Opinions.  Thanks very much, Dan, for the invite, and Sarah, for the introduction. 

I was watching the NFL Vikings carve up the Bears yesterday, trying to decide what to post about first, and my eyes were drawn not to quarterback Brett Favre, running back Adrian Petersen . . . or even the freak who dresses like a viking and leads cheers inside the Metrodome, the Vikings’ domed stadium.  I kept looking at the shots of the stadium itself, and thinking about two recent court orders. 

One was issued last Monday, lifting an injunction on the previous week’s sale by auction of the 94,000 square foot, 80,300 seat Pontiac Silverdome, along with an adjacent fieldhouse and 127 acres of land.  There were four bids.  The winning bid? $583,000.  Total.  After auction fees, the current owner — the City of Pontiac, Michigan — will net about $430,000.  When professional sports tenants such as the Detroit Lions left, a property that cost $56 million to build was rendered practically worthless.  In fact, Pontiac was prepared to accept any bid for the property, since maintaining it was costing the City $1.5 million per year. 

The other order was issued in September by Judge Berrigan of the U.S. District Court for the District of Eastern Louisiana, ordering St. Bernard Parish not to interfere with the construction of a mixed market-rate and low income housing project.  The Parish, faced with an influx of low income tenants, had refused to issue building permits for the project, imposed a moratorium on building apartment complexes, and passed an ordinance making it illegal to rent to anyone other than a blood relative without special permission.  The New Orleans area faces an extreme shortage of low income housing, despite the population diaspora from the area generally.  Most of the housing destroyed by Katrina was low income. 

 There’s a lot to ponder about the Silverdome sale:  That there were three lower bids.  That the winning bid was less than the minimum salary for two NFL rookies.  That economically, everything Michigan touches seems to dissolve. 

There’s also a lot to ponder about the Louisiana case:  The race and class issues implicit in the development of low income housing.  The institutional role of courts as a check on the popular will.  The possibility that some of those in need of that housing once spent time sheltering in a hellish environment inside yet another domed stadium.  

But as a law professor who teaches property, I was also struck by was the extraordinary difference in power between commercial and residential tenants.  In Pontiac, the lack of willing commercial tenants for the Silverdome reduced the value of the property to a nominal amount.  In St. Bernard Parish, despite an abundance of ready and willing residential tenants, a court order was required to get a what should be a profitable property developed.  This week I’m teaching my students about the gradual importation of contract law concepts into the law of leasehold estates.  I tell them that those contract law doctrines tend to protect residential tenants, recognizing what is often unequal bargaing power between residential tenants and lessors.  They are less protective of commercial tenants, because commercial tenants often have as much bargaining power as lessors.

Watching the Vikings on Sunday, oddly enough, brought that lesson home.

As Jacqueline Lipton noted Google Maps has enabled the persistence of race discrimination. Google [...]]]> Space the final frontier. These are the voyages of … ah, you know the rest. Exploration and the idea of frontiers seem to capture an important part of the human experience. The possibility of finding something new, of entering uncharted territories excites people. And, although one may want to keep the secret of the Northwest Passage or the Straits of Magellan a secret, sooner or later a map is created to increase the amount of benefit that can be extracted from the discovery. Yet with the world seeming to collapse into one connected place, the role of maps has changed. In short, maps are a new frontier for property and privacy.

As Jacqueline Lipton noted Google Maps has enabled the persistence of race discrimination. Google Maps has also spawned some other curious creations and connections. For example, I wrote about the flap over what is a true IMAX screen and that folks put together a map of IMAX screens with information about the screen size. The H1N1 (aka swine) flu epidemic revealed an interesting dual use for maps. One person created a frequently updated map with information about claimed incidents. I was curious about the source and found that one person at, what else, a bitotech company focused on recombination and disease, was behind the map. In addition, a group called Health Map seeks to offers a map that connects “disparate data sources to achieve a unified and comprehensive view of the current global state of infectious diseases and their effect on human and animal health.” On the light side, Total Film has a feature that uses Google Street view to show 25 favorite film locations.

As seems always to be the case, folks will probably soon argue about who owns what. The more interesting point might be the way maps show the malleability of information. In some hands, maps show fun things like where a film was shot. In other hands, maps provide useful epidemiological information. Yet, certain home owners may not be pleased about having tourists show up to gawk at what had been a quiet abode. Cities, counties, and even states may be upset if lay people assume that suspected or even confirmed outbreaks mean they should create a de facto or quasi-quarantine. Last, knowing where specific racial, religious, and other groups are can all too easily lead to mob behaviors.

The information mill churns. We have to sort it out. Old tools have new impacts. Today maps pose challenges. Tomorrow it will be something else. I am never certain that the law is the best way to manage these changes. Nonetheless, we have to consider what they are and how they function in case the law is asked to do so. On that note, please share any other creative and/or challenging uses of maps of which you are aware.

Last here is a little music for the trip:

Maps And Legends – R.E.M.

ROBIN MALLOY

Law and Entrepreneurship offers many opportunities for interdisciplinary work and for finding common ground among the various categories of property (real, personal, intangible, cultural, IP, etc.) The recent Conference at Wisconsin [...]]]> I recently wrote about the Creativity, Law and Entrepreneurship Workshop at the University of Wisconsin in which I participated. One of the speakers, Robin Malloy who is the E.I. Chair and Distinguished Professor of Law at Syracuse University College of Law,  emailed me and about the ideas he presented. I am quite interested Robin’s ideas and approaches to this area of the law, so I asked whether he would mind writing a short piece to share with our readers. He was gracious enough to agree. So I am pleased to offer Robin Malloy:

ROBIN MALLOY

Law and Entrepreneurship offers many opportunities for interdisciplinary work and for finding common ground among the various categories of property (real, personal, intangible, cultural, IP, etc.) The recent Conference at Wisconsin on Creativity, Law and Entrepreneurship highlighted this exciting possibility. In thinking about property transactions and entrepreneurship I believe there are at least four central starting points, all of which can be expanded. 1) It is important to get beyond definitions of property and look at what we can do with property… to look at transactions in exchange (asking not just what is property but also, and more importantly, what can we do with property). And from the perspective of market exchange theory asking how we capture and create value from transactions in property. 2) Entrepreneurship requires us to develop a more complex vocabulary. We need to start thinking about a variety of types of entrepreneurship instead of always dealing in an abstract sense with just one big category called “entrepreneurship”, as if all entrepreneurship is of the same type or kind. We need to develop more nuanced categories of entrepreneurship based on different observable patterns of behavior and motivations as they might relate to different types of transactions and different categories of property. 3) Creativity is key to entrepreneurship and this requires us to incorporate a theory of interpretation because creativity requires both an understanding of current boundaries of meaning and a recognition of a possibility for setting new boundaries. Recognizing something as new, of course, requires a cultural-interpretive reference point and, thus, interpretation theory is key to understanding a set of given relationships and to imagining the potential for something new and different. 4) The relationship between law and entrepreneurship requires a dynamic approach to market theory. Traditional efficiency analysis is not entirely helpful since it is really a status quo analysis with little application to creativity. Efficiency is directed at thinking about ways of allocating already known resources and not about the market conditions under which creativity, innovation, and discovery are best facilitated. This means that there is a need to think creatively about the meaning of markets and the tools we use to understand law in a market context.