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.



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

"Slash/Ing Gender and Intellectual Property: A View from Fan Fiction" Free Download
Forthcoming volume on Diversity in Intellectual Property (edited by Irene Calboli and Srividhya Ragavan)

SONIA KATYAL, Fordham University - School of Law
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Today, it is no secret that the regime of copyright law, once an often-overlooked footnote to our legal system of property, now occupies a central position in modern debates surrounding the relationship between freedom of expression, language, and ownership. Curiously, while contemporary scholarship on copyright now embraces a wide range of political and economic approaches, it has often failed to consider how intellectual property (hereinafter, IP), as it is owned, constituted, created, and enforced, both benefits and disadvantages segments of the population in divergent ways. This absence is both vexing and fascinating. While issues of distributive justice have permeated almost every other area of legal scholarship, the literature on intellectual property has traditionally reflected a striking lack of attention to these considerations. Indeed, far from being a value-neutral regime, the history of IP law reveals an astonishing number of incidences where the law has been used — often with great success — to silence transgressive depictions of sexuality, sexual identity, and gender expression.

This Chapter, from a forthcoming volume on Diversity in Intellectual Property (edited by Irene Calboli and Srividhya Ragavan) excavates the relationship between the formal and the informal marketplaces of copyrighted commodities and expression. The interactions between the two markets, I argue, highlights a deeper set of constraints and possibilities with respect to equalizing the marketplace of speech, particularly the production, dissemination, and circulation of content by women. Here, instead of serving as fixed, excludable elements of owned property as in real space, copyrighted cultural products in cyberspace become performative, cultural texts — infrastructural resources — that are ripe for commentary, recoding, transgression, and appropriation. While most conventional scholarship casts the audience as a largely passive body of recipients, performance theory has helped us to radically rethink these assumptions and has offered scholars a host of insights regarding the multiple and intersecting ways in which audiences respond to performances, often creating rich and varied interpretations of a preexisting work, with fan fiction being a single example. Along these lines, I argue that copyright must view its commodities not as fixed, stable texts, but rather as a set of starting points, of ongoing performances that can be recoded and reanalyzed by an active audience. In other words, copyright law needs to equalize the authorial monopoly of the creator in favor of a more dialogic and dynamic relationship between producers and consumers in the process.

"Proprietary Estoppel and Responsibility for Omissions" Fee Download
The Modern Law Review, Vol. 78, Issue 1, pp. 85-111, 2015

IRIT SAMET, King's College London, King's College London – The Dickson Poon School of Law
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The ‘acquiescence’ category of proprietary estoppel is a rare example of responsibility for pure omissions in private law. On liberal?individualistic theories of ownership, the policy considerations against liability for nondoing are exceptionally powerful in the context of rights over land. Nevertheless, I argue that in proprietary estoppel the law is justified in imposing a duty on the right?holder to alert a stranger when his actions are based on a mistake. Owners of property rights are under what Honoré termed a ‘special duty’ to contribute to the social good of efficient market for land by publicising their rights. This ‘duty to speak’ is however relatively weak and cannot completely suppress considerations against liability for omission. While liability in the acquiescence category can be justified in principle, the current law, in which owners who failed to correct the mistake of the relying party incur similar liability to owners who actively encouraged the other party to rely, is untenable.

"Social Citizenship, Housing Wealth and the Cost of Social Care: Is the Care Act 2014 ‘Fair'?" Fee Download
The Modern Law Review, Vol. 78, Issue 1, pp. 112-139, 2015

NICHOLAS (NICK) P. HOPKINS, University of Southampton - School of Law
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EMMA LAURIE, University of Southampton - School of Law
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This article assesses the extent to which it is ‘fair’ for the government to require owner?occupiers to draw on the equity accumulated in their home to fund their social care costs. The question is stimulated by the report of the Commission on Funding of Care and Support, Fairer Care Funding (the Dilnot Commission) and the subsequent Care Act 2014. The enquiry is located within the framework of social citizenship and the new social contract. It argues that the individualistic, contractarian approach, exemplified by the Dilnot Commission and reflected in the Act, raises questions when considered from the perspective of intergenerational fairness. We argue that our concerns with the Act could be addressed by inculcating an expectation of drawing on housing wealth to fund older age: a policy of asset?based welfare.

"Land Law in the Age of Globalization and Land Grabbing" Free Download
Forthcoming in Research Handbook on Comparative Property Law (M. Graziadei & L. Smith eds., Edward Elgar Publishing, 2015)

AMNON LEHAVI, Interdisciplinary Center Herzliyah - Radzyner School of Law
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Is land becoming a global commodity? Who are the actors shaping such a cross-border market for real estate and who remains excluded from participating in it? Which types of interrelations do local and supranational legal systems have in ordering property rights and other legal interests in what is otherwise considered the quintessential location-fixed asset? How are law, economics, politics, and culture likely to interact in the context of land in an age of increasing globalization?

This chapter underscores the tension between the conceptual oddity and practical significance of cross-border effects of land law, and shows how the scope and nature of such extraterritorial implications have changed significantly over the past few decades in view of certain political, economic, and social processes. This turn of events constantly puts pressure on national legal systems that had traditionally viewed this field as literally embodying the law of the land. At the same time, current market trends toward globalization are far from resulting in clear-cut convergence among legal systems or in a shift of the mainstay of legal ordering to the supranational realm. This chapter analyzes the inherent dilemmas and challenges that land law faces in adequately addressing the changing landscape of real estate in the age of globalization.

"This is Adaptation: The Elimination of Subsidies Under the National Flood Insurance Program" Free Download
Columbia Journal of Environmental Law, Vol. 39, No. 2, 2014

SARAH FOX, Jones Day
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This article analyzes the ongoing debate over amendments to the National Flood Insurance Program (NFIP) in the broader context of adaptation to climate change. In the fifty years since its enactment, the NFIP has proven to be a financial and environmental disaster. The availability of flood insurance through the NFIP has encouraged an unprecedented population surge along the coasts, and, as this population has become increasingly vulnerable to hurricane activity and flooding from sea level rise, the federal government has paid billions in insurance claims and disaster relief. Moreover, the increased coastal population has jeopardized the ability of coastal ecosystems to adapt to rising sea levels, putting both humans and the natural environment at risk. The Biggert-Waters Flood Insurance Reform Act of 2012 was intended to correct some of the these problems in the NFIP by eliminating subsidized premium rates and updating insurance rates to more accurately reflect risk. Those amendments, however, have been met with bitter opposition from those now facing increased premium rates for flood insurance. Several recent pieces of legislation have called for significant delays in the rate increases.

Much of the opposition to the NFIP amendments can be traced to a broader resistance to lifestyle changes that may be required by a changing climate. Adaptation to climate change is still in its infancy in the United States, and has not yet had an impact on the lifestyles of most individuals, including lifestyles made possible by substantial government subsidies for everything from flood insurance to roads to water. But as certain land use patterns and other behaviors become increasingly unsustainable, the elimination of subsidies that encourage environmentally harmful behaviors is likely to become an appealing first step toward adaptation. The elimination of those subsidies will work tremendous changes on communities that have relied upon them for decades, as is currently happening in coastal communities reliant on flood insurance. Consequently, prior to their elimination, it is important to understand whether the provision of subsidies in the past creates any future obligation on the part of the government to those people who have built their lives around subsidies. After considering several different legal frameworks through which such legal obligations might be imposed, my article concludes that the government is under no obligation to continue its subsidies of environmentally harmful behaviors. Despite the controversy and reluctance likely to accompany any measures that force changes in lifestyle, these are the kinds of changes that adaptation will require.

"Theorizing Africana Agrarian Social Movements: Towards a Transnational Perspective" 

KWASI DENSU, Independent
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This discussion seeks to explore both the theoretical and historical significance of contemporary Africana agrarian social movements. Within the context of Africana Studies "land based" social movements have been marginalized and urban-based social movements are privileged. This exclusion, both theoretical and historical, has shaped the contours of social movement discourse within Africana studies. Old/new social movements however, are remerging in turn challenging previous held assumptions. We will reflect upon these movements using a transnational framework. In addition, this paper will reconsider Amilcar Cabral’s discussion on National Liberation and Culture as a theoretical basis to explore the linkages that exist between ecology, political economy, identity and land based social movements. In doing so we seek to "unearth" some of the core, normative assumptions associated with Africana Agrarianism and their capacity to expand our understanding of African emancipatory politics in the contemporary period.

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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?

Submissions

To submit your research to SSRN, sign in to the SSRN User HeadQuarters, click the My Papers link on left menu and then the Start New Submission button at top of page.

Distribution Services

If your organization is interested in increasing readership for its research by starting a Research Paper Series, or sponsoring a Subject Matter eJournal, please email: RPS@SSRN.com

Distributed by

Legal Scholarship Network (LSN), a division of Social Science Electronic Publishing (SSEP) and Social Science Research Network (SSRN)

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

Please contact us at the above addresses with your comments, questions or suggestions for LSN-Sub.