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.
PROPERTY, CITIZENSHIP, & SOCIAL ENTREPRENEURISM eJOURNAL
Sponsored by Syracuse University, College of Law
"Constitutional Law and the Limits of Discretion in Family Property Law"
Federal Law Review, Vol. 44, No. 1, pp. 49-75, 2016
Sydney Law School Research Paper No. 16/76
PATRICK PARKINSON, University of Sydney - Faculty of Law
The argument of this Article is that the width of discretion that trial judges have to alter property rights under the Family Law Act 1975 (Cth) (‘the Act’) has been overstated. The property aspects of the Act can only be valid to the extent to which the law is an appropriate application of the marriage and divorce powers in the Constitution or is within the boundaries of the States’ reference of powers about de facto relationships. These constitutional provisions place significant constraints upon judicial discretion. In relation to marriages, the need to adjust property rights must result from the circumstances of the marital relationship or be justified as a consequence of the financial impact upon a party of its breakdown. The authority of Parliament to make laws concerning the alteration of the property rights of de facto partners is limited to cases of relationship breakdown.
Furthermore, the Family Court of Australia and the Federal Circuit Court of Australia are both Chapter III courts. That has implications for the kind of discretion that Parliament can lawfully confer upon the trial judge, and the limits of that discretion. Some recent dicta and decisions of the Full Court of the Court suggest a view of judicial discretion which, it is argued, is inconsistent with the nature of judicial power in a Chapter III court. The discretion of trial judges is fettered by three duties: The duty to follow the interpretation of the Act as established authoritatively by appellate decisions, taking account of guidelines in appellate judgments; the duty to give reasons that explain the outcome of the case, and in particular, to justify the alteration of legal and equitable interests in specific items of property; and the duty to avoid arbitrary and capricious decision-making.
The current jurisprudence on family property law is not necessarily consistent with these constitutional limitations.
"Understanding Access to Things: A Knowledge Commons Perspective"
A chapter in:
Intellectual Property and Access to Im/material Goods,
edited by Jessica C. Lai & Antoinette Maget Dominicé (Edward Elgar, 2016)
U. of Pittsburgh Legal Studies Research Paper No. 2016-25
MICHAEL J. MADISON, University of Pittsburgh - School of Law
This chapter explores the related ideas of access to knowledge resources and shared governance of those resources, often known as commons. Knowledge resources consist of many types and forms. Some are tangible, and some are intangible. Some are singular; some are reproduced in copies. Some are singular or unique; some are collected or pooled. Some are viewed, used, or consumed only by a single person; for some resources, collective or social consumption is the norm. Any given resource often has multiple attributes along these dimensions, depending on whether one examines the resource’s physical properties, its creative or inventive properties, or its natural, factual, or ideational properties. Access questions are, accordingly, diverse. That diversity is compounded by the proposition that access is itself a property of a resource, in the sense that resource characteristics are, to a substantial extent, socially and culturally constructed. Social construction means not only that boundaries among properties of a resource may be blurred but also that those properties and boundaries may change over time. By virtue of that diversity, investigating access to knowledge resources creates the risk of producing a conceptually fragmented and unhelpful landscape of theory and application on a resource-by-resource basis. This chapter suggests that the investigation of access to knowledge resources may be unified under the umbrella concept of knowledge commons, the study of governance of shared knowledge resources. It presents a framework for understanding knowledge commons and illustrates its application to several questions of access to the material and immaterial dimensions of specific knowledge resources.
"Property as a Management Institution"
William & Mary Law School Research Paper No. 09-346
LYNDA L. BUTLER, William & Mary Law School
The institution of property serves an important management function for society, guiding the use of resources among its members by delegating to the owner the power to decide how and when to use a resource. Under the dominant American approach, this delegation involves recognizing broad decision-making powers in the individual property owner. Grounded in an exclusion-based view of property, the dominant approach recognizes each property owner as a gatekeeper, with important in rem rights that bind all others – even those not in a direct relationship with the owner. Over time courts and other lawmakers have developed doctrines and rules of law to guide and sometimes constrain the exercise of gatekeeping powers. Developed through democratic institutions, these principles and rules provide an important counterweight to the self-interests driving the decisions of individual right holders.
The exclusion-based approach to the management function works well much of the time. It is a low-cost approach that relies on the incentives of the marketplace to reward the productive gatekeeper or replace the wasteful one. With a simple delegation, ownership rights and powers are placed in the gatekeeper and protected from encroachment or interference through the power to exclude. In certain more complex settings, however, property’s owner-centric exclusion strategy poses serious problems by ignoring the true scales and relational dimensions of property use. These problems include resource hoarding, excessive fragmentation, overcapitalization, and serious, sometimes irreversible degradation of the environment. It is time to rethink the management function of property to recognize that management occurs both through individual and collective action. In a democratic society, neither is sufficient by itself. Both are necessary to promoting individual freedoms, social cohesion, and the integrity of political, economic, and natural systems.
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?
Editor: Robin Paul Malloy, Syracuse University
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