Announcements

The Working Group on Property, Citizenship, and Social Entrepreneurism (PCSE) (http://www.law.syr.edu/pcse) is sponsored by the Syracuse University College of Law and its Program in Law and Market Economy. The Program in Law and Market Economy is an interdisciplinary program focusing on the relationship among law, markets, and culture. Within this context the Working Group on PCSE brings together experts from a variety of institutions to discuss and explore issues related to property law, governance, and globalization. The Group will provide an ongoing forum for the publication of important new works.


Table of Contents

Derivative Citizenship: What's Marriage, Citizenship, Sex, Sexual Orientation, Race and Class Got to Do with It?

M. Isabel Medina, Loyola University New Orleans College of Law

Rules v. Outcomes: New Radical Approaches to the Incosistencies of Property Rights Analysis

P. G. Monateri, SciencesPo, Ecole de Droit, Law School, University of Torino (Italy), University of Turin, Faculty of Law

Progressive Property Moving Forward

Timothy M. Mulvaney, Texas A&M University (TAMU) - School of Law

Closing the Gap between Private Letter Rulings and Regulations

Willard B. Taylor, New York University School of Law

A Brief History of Software Patents (and Why They're Valid)

Adam Mossoff, George Mason University School of Law


PROPERTY, CITIZENSHIP, & SOCIAL ENTREPRENEURISM eJOURNAL
Sponsored by Syracuse University, College of Law

"Derivative Citizenship: What's Marriage, Citizenship, Sex, Sexual Orientation, Race and Class Got to Do with It?" Free Download
28 Georgetown Immigration Law Journal (Spring 2014 Forthcoming)

M. ISABEL MEDINA, Loyola University New Orleans College of Law
Email:

I explore the derivative citizenship statutory framework and its interaction with marital status, citizenship, gender, race, and class as implemented by federal courts. The first section of the paper describes the origins and current statutory and constitutional framework for derivative citizenship. The second section explores contemporary adjudication of derivative citizenship, the operation of marriage, sex, race and class discrimination in the cases, and the legal and moral bankruptcy of the determinations. The third section offers a critique of the doctrinal framework, relying on the work of Ian Haney Lopez, Candice Lewis Bredbenner and other critical race and feminist legal scholars that have traced race and gender bias in citizenship norms and marriage. The conclusion identifies possible reforms.

Legal norms concerning marriage and the family have proved resistant to substantive and formal notions of equality. Marriage’s relationship to explicit and implicit gender and racial stereotypes and bias continues, to a degree, today, penalizing couples in traditional marriages who are in “mixed? marriages, same-sex marriages and parents who are not in marriages because the law does not recognize their relationship or because they opt not to be married, whether they live together or apart. Even where the domestic law of the family has been transformed to minimize formal gender and racial bias, the federal law of derivative citizenship has lagged behind, clinging to biased notions of gender, family and marriage in the administrative and judicial implementation of the formal legislative rules provided by Congress to determine who derives citizenship and who does not. The current statutory framework is problematic from an equality perspective, even if formally consistent with current understandings of equal protection law. The current statutory focus on the marital status or citizenship status of the parents should be replaced with a focus on the U.S. citizen parent-child relationship and the statutory requirements simplified to facilitate passage of citizenship from the U.S. citizen parent to children born abroad, regardless of marital status, parent gender, and custodial status. In addition, constitutional protection for parents and children claiming citizenship by descent should be heightened to reflect the importance of the parent’s ability to pass citizenship on to their child to constitutional values of equality and membership. The current system’s reliance on immigration courts and removal proceedings to determine citizenship claims should be abandoned and returned to federal courts. In turn, courts should more rigorously scrutinize citizenship statutes and claims to ensure that the important right of a U.S. citizen parent to pass citizenship on to her or his child born abroad receives protection in accordance with the high value that the United States places on the parent-child relationship and citizenship.

"Rules v. Outcomes: New Radical Approaches to the Incosistencies of Property Rights Analysis" Free Download

P. G. MONATERI, SciencesPo, Ecole de Droit, Law School, University of Torino (Italy), University of Turin, Faculty of Law
Email:

The aim of my paper is to show that a consistent economic analysis brought to its logical conclusions should destroy any theory of property rights, and as such it is inconsistent with its own premises, and especially with the ideological presuppositions of quite all of its followers. The suggested alternative here is a kind of “reversed? Hayek: I mean an active use of historicism and institutional analysis from a political stendpoint that is preciseply contrary to the right wing approach that has been sponsorized by Hayek.

My conclusion is then that maybe we must start afresh from the Scottish Enlightment, which founded the basis of the present analysis of ownership and ownerhip economies, following the Austrian School of Economics toward radically very different political positions.

"Progressive Property Moving Forward" Free Download
Cal. L. Rev. Cir., Forthcoming

TIMOTHY M. MULVANEY, Texas A&M University (TAMU) - School of Law
Email:

In his thought-provoking recent article, “The Ambition and Transformative Potential of Progressive Property,? Ezra Rosser contends that, in the course of laying the foundations of a theory grounded in property’s social nature, scholars who participated in the renowned 2009 Cornell symposium on progressive property have “glossed over? property law’s continuing conquest of American Indian lands and the inheritance of privileges that stem from property-based discrimination against African Americans. I fully share Rosser’s concerns regarding past and continuing racialized acquisition and distribution, if not always his characterization of the select progressive works he critiques. Where I focus in this essay, though, is on the fact that, in the course of articulating his claim that these select progressive works have failed to attend sufficiently to matters of acquisition and distribution, Rosser wavers on whether a system of private property has the very capacity to play even a small part in fostering meaningful progressive change.

After setting forth my understanding of Rosser’s contribution in the first part of the essay, I use the remaining pages to express slightly more confidence than does Rosser in property’s potential to serve a role in furthering a progressive society. If property is to serve in this role, however, I suggest that it seems important to redesign and reinterpret it in accord with three themes — transparency about property rules’ value-dependence, humility about the reach of human knowledge and the mutability of our normative positions, and a concern for the socioeconomic identities of those affected by resource disputes — themes that underlie a broader set of writings than Rosser considers within the contours of “progressive property scholarship? and on which I offer some very preliminary impressions.

"Closing the Gap between Private Letter Rulings and Regulations" Free Download
Tax Notes, August 4, 2014

WILLARD B. TAYLOR, New York University School of Law
Email:

This article summarizes and comments on regulations that would redefine real property for purposes of the real estate investment trusts rules; and it argues that there should be more guidance on these and similar issues to close the gap between private letter rulings and published guidance affecting REITs and publicly-traded partnerships in the natural resources sector.

"A Brief History of Software Patents (and Why They're Valid)" Free Download
George Mason Law & Economics Research Paper No. 14-41

ADAM MOSSOFF, George Mason University School of Law
Email:

Today, there is a vigorous and sometimes caustic debate over whether computer software is a patentable invention. Unfortunately, these arguments are rife with confusion about the technology and the law, and courts are proving to be equally confused. As opposed to continuing the entirely doctrinal and policy debate in the literature, this essay fills a gap in the scholarship by detailing the historical evolution of computer software and showing how intellectual property (IP) law played a key role in its technological development. This historical account contributes to the debates in two ways. First, it reveals that opposition to IP protection for software is not new. There was vociferous opposition in the 1960s to extending copyright protection to software code, just as there is strident opposition today to extending patent protection to software programs. Second, and more important, it reveals why courts extended patent protection to software programs in the 1990s, which followed from the evolution of computer technology itself. Legal doctrines evolve in response to developments in new technology, and the patent system exemplifies this operating principle. The patent system secured to innovators the new technological inventions in the Industrial Revolution and it secures to innovators the new technological inventions in the Digital Revolution today. Understanding the history of computer software and its evolving protections under the IP laws confirms that software programs today are inventions that, if they are new, useful, nonobvious and properly disclosed in a patent application, are rightly eligible for patent protection.

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About this eJournal

Sponsored by: Syracuse University, College of Law.


The eJournal of Property, Citizenship, and Social Entrepreneurism (PCSE) is an interdisciplinary journal dedicated to exploring the core principle that a just and accessible property law system is the basis for both good citizenship and successful socio-legal development. This eJournal distributes working and accepted paper abstracts primarily concerned with matters of property as they relate to the human process of exchange, the fostering of democratic institutions, the building of sustainable communities, the stewardship of the global environment and its natural resources, the promotion of citizenship, and the development of market institutions that respond to and promote a worthy social mission.

Our goal is to explore the legal infrastructure of property in broad terms: encompassing concerns for real, personal, intangible, and intellectual property, as well as looking at property related financial markets (including real estate mortgages, personal property security interests, licensing, and securitization).

Making reference to specific examples of property (in its various forms) we will address the following types of issues.

1) To what extent do property rights reduce or eliminate the need for government regulation (particularly command and control-regulation) while enhancing the environment for open market approaches to economic development and globalization? This includes consideration of the way in which property rights actually reduce transaction costs, correct for problems raised by the tragedy of the commons, and organize society in a way that fosters efficient economic development.

2) What is the role of privatization of State controlled property in the transformation process? How should privatization be approached and what distinctions need to be made between public, private, and state property? This includes discussion of necessary support infrastructure for successful privatization, and consideration of the need for government control over private companies dealing with public utilities, natural resources, and transportation systems.

3) To what extent do property rights enhance citizenship and advance democratic institutions? What role does private property play in creating political elites and the structures needed for controlled development and social transformation? How can property rights be used to make the rule of law more tangible, and to promote civic participation and inclusion? How are property rights related to citizenship issues respecting matters of race, gender, ethnicity, urban or rural location, and other factors?

4) To what extent do property rights promote entrepreneurism, including social entrepreneurism focusing on values other than mere maximization of economic wealth and efficiency? How can property rights fuel economic development while helping to reduce poverty?

5) In a world of global financial institutions such as the European Development Bank, The World Bank, and the IMF, with the power to influence indirect or quasi-law making, how are global property law systems to develop and become institutionalized? How do these institutions facilitate problems related to globalization and harmonization, and what are the socio-legal implications from such activity?

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Directors

LSN SUBJECT MATTER EJOURNALS

BERNARD S. BLACK
Northwestern University - School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
Email: bblack@northwestern.edu

RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
Email: rgilson@leland.stanford.edu

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