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

"The Right of Publicity and the Student-Athlete" Free Download
Elon Law Review, Vol. 7: 537, 2015

JAMES A. JOHNSON, Independent
Email:

This Elon Law Review article sets out the status and development of the landmark case of former UCLA basketball star, Ed O'Bannon who sued the NCAA. O'Bannon's antitrust lawsuit against the NCAA challenges the right of the NCAA and its licensing partners to commercially use student-athletes' images and likeness without compensating them.

This writer discusses the law of the right of publicity, that is a protectible property interest in one's name, identity or persona. Every person, celebrity or non-celebrity has the right to own, protect and commercially exploit one's identity.

In order for the plaintiff's to prevail on their Section I antitrust claim, they must show that (1) there was an agreement; (2) the agreement unreasonably restrains trade under a rule of reason analysis; and (3) the restraint affects interstate commerce.

On August 8, 2014, Chief Judge Claudia Wilken of the Northern District of California ruled in favor of the Plaintiffs in O'Bannon, holding that the NCAA rules violate antitrust laws. She issued an injunction that prevents the NCAA from enforcing any rules or bylaws that would prohibit member schools and conferences from offering a limited share of revenue generated from the use of players' names, images and likeness over and above a full grant-in-aid.

The O'Bannon case is now on appeal in the Ninth Circuit Court of Appeals. In other words, stay tuned.

"On the Just Distribution of Land Use Rights" Free Download
Canadian Journal of Law and Jurisprudence, Vol. 28, No. 2, 2015

RONIT LEVINE-SCHNUR, University of Toronto - Faculty of Law
Email:
AVIGAIL FERDMAN, Technion-Israel Institute of Technology
Email:

The current system of decision-making in land use law is not transparent and is open to bias and personal corruption. This gives rise to the possibility of unequal treatment under the law, especially given the judicial reluctance to interfere in reviewing the decision-making process. The solution is an auction mechanism to overcome these problems, under which the local government would award land use rights to the highest bidder, where offers will be examined in light of their contribution to the society’s best interest. Such a mechanism would have possible benefits in terms of transparency and insurance against favoritism or arbitrariness. This is especially the case where the value of the resource is relative and contingent upon spatial, speculative and dynamic variables.

The auction mechanism employs a simple metric (i.e., revealed private value of the competing claims) by which the local government can give a transparent, non-arbitrary, observable, and verifiable response. This mechanism treats each and every person’s choices with equal concern and respect. In this sense, it is procedurally fair. When we compare potential bidders under such an auction, we find that as long as the background of opportunities is fair — i.e., inequality in agents’ situation is a result of their own choices — choosing a better positioned contender in a bid is justifiable. This conclusion implies a normative consideration in favor of employing the auction tool, if it is conducted between potential bargainers that enjoy equality in background conditions and when means for offsetting brute bad luck are utilized.

"Cultural Heritage Conservation Easements: The Problem of Using Property Law Tools for Heritage Protection" Free Download
Land Use Policy (2015 Forthcoming)

JESSICA OWLEY, State University of New York (SUNY) at Buffalo - Law School
Email:

Conservation easements are quickly becoming a favored tool for protection of cultural heritage. Perpetual encumbrances on the use of private land, most cultural heritage conservation easements are held by private conservation organizations known as land trusts. With minimal public oversight, land trusts decide which lands to protect in perpetuity and what the rules regarding use of those lands should be. A variety of concerns arise when protection of cultural heritage resides with private organizations. First, as governments abdicate cultural heritage protection to private organizations, the public’s role in site protection shifts. When private organizations and landowners negotiate which properties to protect and how to protect them, some culturally important sites go unprotected. Privatizing protection of cultural sites may reduce the ability of some members of the public to become involved in the decision of what to protect as well as hamper public oversight and enforcement of land-use restrictions. It may even reduce overall protection as public entities remove themselves from the cultural heritage protection game, ceding the territory to land trusts. Second, private perpetual restrictions problematize the balance between intergenerational rights and present responsibilities. Reverence of past cultural events and properties may hamper future growth as users of conservation easements restrict properties in perpetuity without enabling communities to revisit or modify the restrictions. Third, conservation easements may be protecting sites that were not in danger of exploitation. In such cases, conservation easements subsidize landowners with questionable public benefits. Finally, using conservation easements to protect sacred sites commoditizes cultural heritage. Paying people to protect cultural heritage could degrade cultural heritage or civic responsibility.

"Airbnb and the Housing Segment of the Modern 'Sharing Economy': Are Short-Term Rental Restrictions an Unconstitutional Taking?" 
Hastings Constitutional Law Quarterly, Vol. 42, 2015

JAMILA JEFFERSON-JONES, University of Missouri at Kansas City - School of Law
Email:

The last few years have seen a reinvention of the economy through the growth of the “sharing economy? or the “new economy.? The modern sharing economy is diverse and is made up of various types of organizations and structures, including shared housing. What ties these various components together is that they “generally facilitate community ownership, localized production, sharing, cooperation, [and] small scale enterprise.?

The rise of the new sharing economy has been a consequence of the latest assault on the old American Dream -- the version in which one is “expected to grow up, get a good job, and make money to buy all of the things [one] might need.? The realization of this dream, however, has been hampered by recent negative economic changes. One pair of commentators has opined that “[t]he sharing economy is not a top-down solution, meaning that it will not be imposed by a set of legislated policies . . . [Rather], it is being built from the ground up by every individual and group that chooses to begin consuming, transacting, or making a livelihood in a new way.?

The sharing economy has redefined consumption in the housing context in a manner that implicates the exclusivity of the use and enjoyment of real property. Consequently, just as with other aspects of use and access to goods, materials, and services in the sharing economy, housing sharing is predicated on two ideas working in tandem with one another: (1) that “we can have access to many things that we need without having to own them all by ourselves? and (2) that by sharing some of the benefits of property ownership -- namely use and enjoyment -- we can also shift some of the (economic) burdens of ownership.

The number of online platforms designed to link property owners with potential short-term lessees has grown rapidly over the last few years. Airbnb, the most well known of these platforms, describes itself as “a trusted community marketplace for people to list, discover and book unique accommodations around the world.? Airbnb boasts that it has connected over twenty-five million guests with hosted properties in 34,000 cities in 190 countries since its founding in 2008. Airbnb is not only the leading online platform for the exchange of short-term rentals, recently, it has been the most controversial as well.

Recently, controversy erupted in New York City, Airbnb’s largest United States market. In October 2013, New York Attorney General Eric Schneiderman subpoenaed Airbnb’s records, requesting data on its hosts for the previous three years. Schneiderman contended that Airbnb hosts in New York City were violating the New York Multiple Dwelling Law. The New York Multiple Dwelling Law requires that certain multiple dwellings units only be occupied by “permanent occupants? -- those residing in the unit for thirty or more consecutive days. The Attorney General also asserted that Airbnb hosts in New York City were not complying with state and local tax registration and collection requirements.

Many state and local governments rely on their inherent police powers to regulate short-term housing in residential areas. In particular, zoning laws -- like New York’s Multiple Dwelling Law -- may overtly prohibit occupation by short-term renters.

Historically, governments have used their police powers to create and enforce zoning restrictions of this nature for the purpose of preserving or improving public safety, property values, and the “character? of residential neighborhoods. These policies are of a bygone era and are ill-suited to address the modern sharing economy. Moreover, local governments do themselves a disservice when they prohibit housing exchanges. Rather than frustrating the goals and purposes for which old economy regulations were designed (e.g., the preservation of property values and neighborhood character), such exchanges may aid in achieving these aims. Additionally, these restrictions may constitute a regulatory taking of private property without just compensation in violation of the Fifth and Fourteenth Amendments.

The sharing economy has positively impacted many individuals and communities, but there is also a brewing conflict between this genesis and the realities of economic regulation -- a conflict of which the New York Airbnb subpoena controversy is emblematic. Thus, in the housing context, we see this conflict playing out in the tension between growing patterns of home sharing and existing regulations that prohibit such sharing.

This Article focuses on the question of whether municipal restrictions on short-term leasing constitute unconstitutional takings of private property without just compensation. Part I gives an overview of home sharing in the new economy via short-term leasing. In doing so, it not only examines the controversy in New York, but also provides a historical perspective on home sharing in the United States, focusing particularly on the proliferation of boarding houses in the nineteenth century as a corollary to today’s home sharing market. The examination of this topic is couched in the historical context of minority, immigrant, and women homeowners’ “taking in boarders? in lean times in an effort to make ends meet and maintain ownership of their homes. Part II analyzes short-term leasing restrictions under the Takings Clause. In doing so, it examines the nature of short-term leasing restrictions and the reasons employed by municipalities to justify these regulations. Part III discusses the New York Airbnb controversy. Finally, Part IV argues that such facilitation is desirable because municipalities actually do themselves a disservice when they prohibit these new economy housing exchanges. Such exchanges can help to preserve property values by providing income to homeowners that can be used to offset mortgage and maintenance costs -- in other words, sharing the burden of ownership. If homeowners are able to do so, they are more likely to be able to maintain their homes in the short-term and, in the long-term to maintain ownership. Moreover, municipalities may also reap economic benefits from permitting such exchanges.

"Common Law Property Theory and Jurisprudence in Canada" Free Download
Queen's Law Journal, Vol. 40, No. 2, p. 679, 2015
Osgoode Legal Studies Research Paper No. 28/2015

SARAH E. HAMILL, York University - Osgoode Hall Law School
Email:

In recent years, property theorists have offered varying accounts as to what exactly ownership is, typically focusing on one or more key rights to the owned thing. However, most of these theories are articulated in the abstract and do not engage the jurisprudence. This article uses the jurisprudence concerning expropriation and adverse possession to show that Canadian courts have in fact developed their own definition of ownership — one that is not reflected in the property theory discourse. The author goes on to argue that this narrower definition of ownership — made up by the rights to exclude and to primary use — is preferable to those offered by the property theorists, as it better balances the competing interests of owners, non-owners and the state.

^top

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

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.