Thursday, March 1, 2007
John A. Lovett (Loyola-New Orleans) has posted Property and Radically Changed Circumstances on SSRN. Here's the abstract:
Although Hurricane Katrina altered our national dialogue about many issues, few scholars have addressed whether the storm changed thinking about fundamental property relationships. This article fills that void in two ways. First, it creates a theoretical framework for understanding property law in the context of events producing radically changed circumstances. It does this by defining these events, exploring the mismatch between property law's traditional focus on stability and environments of radical change, creating a taxonomy of property relationships tailored for this exploration, describing typical problems confronted after an event of radical change, and finally developing a set of normative criteria to evaluate the resiliency of property regimes.
The second part of the article focuses on two common property relationships—between landlord and tenant and mortgagor and mortgagee—and examines how their default rules, voluntary private ordering, and market practices have fared under the pressure of Hurricane Katrina. This part also analyzes how another kind of property relationship—between a city (New Orleans) and its citizens—has weathered the radical change created by Katrina and how a series of federally funded and state administered programs have fared in restoring housing—a crucial common resource and public good—in the post-Katrina environment.
The article concludes by suggesting that longer term, more indefinite property relationships characterized by private ordering, risk spreading, setting aside exogenous resources and mutual accommodation—commercial lease and mortgage relationships to be specific—show more resiliency than shorter term and more finite relationships where default rules make exit easy for some parties (residential landlords) but re-entry difficult for others (residential tenants). The article also demonstrates how government housing recovery programs can be assessed using the normative criteria developed in Part I and what policy makers can learn from traditional private property regimes facing events of radical change.
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