Reference no: EM131087211

Econ 522 - Economics of Law - Spring 2014 - Homework 2 - Property Law

QUESTION 1 - THE ELGIN MARBLES

The Elgin Marbles, also called the Parthenon Marbles, are a large collection of marble sculptures removed from the Parthenon at Athens to Britain in 1806 by Thomas Bruce, 7th Earl of Elgin, ambassador to the Ottoman Empire from 1799 to 1803. Taking advantage of Ottoman occupation over Greece, he obtained a firman [royal mandate] from the Ottoman Sultan to remove movable sculptures or inscriptions. However, taking advantage of the political situation, he also managed to remove the famous Parthenon Friezes. The sculptures were deposited in the British Museum, London in 1816, and in 1936 were placed into the purpose-built Duveen Gallery.

The Elgin Marbles include some of the statuary from the pediments, the metope panels depicting battles between the Lapiths and the Centaurs, as well as the Parthenon Frieze which decorated the horizontal course set above the interior architrave of the temple. As such, they represent more than half of what now remains of the surviving sculptural decoration of the Parthenon: the Elgin marbles and frieze extend to about 1km when laid out flat, 15 out of 92 metopes; 17 partial figures from the pediments, as well as other pieces of architecture. Elgin's acquisitions also included objects from other buildings on the Athenian Acropolis: the Erechtheion, reduced to ruin during the Greek War of Independence (1821-33); the Propylaia; and the Temple of Athena Nike. Lord Elgin took half of the marbles from the Parthenon and wax casts were produced from the remaining ones.

The Greek government claims that the marbles should be returned to Athens on moral and artistic grounds, although it is no longer feasible or advisable to replace them on the Parthenon. The main stated aim of the Greek campaign is to reunite the Parthenon sculptures around the world in order to restore the unity of the monument. Already, two fragments of the monument have returned from Sweden and Germany. The New Acropolis Museum, designed by the Swiss-American architect Bernard Tschumi, is designed to hold the Parthenon sculptures arranged in the same way as they would have been on the Parthenon. It is intended to leave the spaces for the Elgin Marbles empty, rather than using casts in these positions, as a reminder to visitors of the fact that parts are held in other museums.

A range of slightly different points have been put by British Museum spokespersons over the years in defence of retention of the Elgin Marbles within the museum. The main points include:

• the maintenance of a single worldwide-oriented cultural collection, all viewable in one location, thereby serving as a world heritage centre;
• the saving of the marbles from what would have been, or would be, pollution and other damage if relocated back to Athens; and
• a legal position that the museum is banned by charter from returning any part of its collection.

Questions:

(a) Would you expect the transaction costs of private bargaining to be high or low in this case?  Why?

(b) Explain the difference between the Normative Coase and Normative Hobbes approaches to property law.  Given your answer to (a), which seems more appropriate in this case?

(c) Suppose it were decided that Greece had a right (in the words of Calabresi and Melamed, an entitlement) to the statues.  Given your answer to (a), what would you expect to be the final outcome if this entitlement were protected by each of the following remedies: injunctive relief (property rules)?  Damages (liability rules)?  Inalienability?

QUESTION 2 - WATER RIGHTS

Centuries ago in England, the general rule [on water rights] was that rights were vested in the "riparian owner," that is, in the person who owned the land on the bank of the river.  The riparian owner's principal right was to a flow of water past his land.  It would be a violation of someone else's rights for an upstream user to use the water that passed by his property in such a way as to reduce the flow to downstream users.  The upstream user could not, therefore, divert so much of the water to his own use that the flow was significantly diminished for those downstream.  A riparian was restricted in his ability to sell water to nonriparians (i.e., people who do not own land along the water).

However, in the 19th century, this legal arrangement had to be altered because industrial demand on the natural flow of a river frequently exceeded the supply.  In the eastern United States, these issues were resolved by elaborating the natural-flow theory of water rights that had been adopted from the English common law.  An alternative theory of water rights appeared in the western United States.  Under the reasonable-use theory, the riparian owner is entitled to use the water flow in any reasonable way.  It was deemed reasonable for one owner to use all of the water in a stream or lake when others are making no use of it.  Under the reasonable-use theory, a riparian owner does not have a right to the natural water flow.  Furthermore, a riparian owner may transfer rights to nonriparians.

Questions:

(a) Explain why a rule which worked perfectly well in pre-industrial England might have been insufficient after the industrial revolution.

(b) Coase would say that, when transaction costs are low, the initial allocation of property rights does not affect efficiency.  Is that the only difference between the natural-flow and reasonable-use theories?  Does the law seem to be evolving in the direction of greater efficiency?

QUESTION 3 - ADVERSE POSSESSION

The following is excerpted from a BBC News story from January, 2003, "Eco-burial woman claims squatters' rights," downloadable at https://news.bbc.co.uk/1/hi/england/2707235.stm

A Somerset woman who buried bodies in a piece of disputed garden claimed by her neighbours wants squatters' rights on the land.

Barbara Butler buried four people, including two children, and several animals in unmarked graves on disputed land at Watchet as part of her business, Green Undertakings.

Her neighbours, Richard and Rosemary Rutter, discovered the bodies - which have since been exhumed and re-buried - in 1999.

But now Mrs Butler wants the Land Registry to award squatters' rights over parts of the land, based on her former use of it.

...Mr and Mrs Rutter of Brendon Road, Watchet, say they had no idea their neighbour had used the land for the eco-burials for two years.  They say they were 'horrified' when they made the discovery in a corner of what they claim is their garden.

...The case may be one of the last of its kind in Britain as new legislation due to take effect later this year will make squatters' claims much more difficult.

Question- While adverse possession rules vary from place to place, two common features are that the property must be possessed openly, with no attempt to hide it; and that the possession must be against the interests of the owners.  Explain the effects of these two conditions, and what would likely happen without them.

QUESTION 4 - EMINENT DOMAIN

The case, Poletown Neighborhood Council v. City of Detroit, is taken from www.cooter-ulen.org.  Additional information taken from "Poletown, Detroit" at Wikipedia -https://en.wikipedia.org/wiki/Poletown

In 1981, General Motors planned to close its Cadillac plant in Detroit and move to the South unless a new, upgraded site could be built.  The Detroit area had lost another auto plant two years earlier, and this one would lead to the loss of 6,000 additional jobs and millions of dollars in tax revenues.  The city of Detroit agreed to create a new site for the factory in a neighborhood called Poletown, and make infrastructure improvements to the area, if GM would stay in the area.  To do this, they used the right of eminent domain to condemn over 1000 houses and 100 businesses, claiming that increased employment and tax receipts were public goods which justified using this power.  The Michigan Supreme Court upheld the city's decision; excerpts from the majority and dissenting opinions are below.  (The ruling was overturned in the 2004 Michigan Supreme Court decision County of Wayne v. Hathcock; a similar 2005 U.S. Supreme Court case, Kelo v. City of New London, was decided in the same direction as Poletown.)

PER CURIAM.  This case raises a question of paramount importance to the future welfare of this state and its residents: Can a municipality use the power of eminent domain granted to it by the Economic Development Corporations Act ... to condemn property for transfer to a private corporation to build a plant to promote industry and commerce, thereby adding jobs and taxes to the economic base of the municipality and state?

The Economic Development Corporations Act is a part of the comprehensive legislation dealing with planning, housing and zoning whereby the State of Michigan is attempting to provide for the general health, safety, and welfare through alleviating unemployment, providing economic assistance to industry, assisting the rehabilitation of blighted areas, and fostering urban redevelopment. To further the objectives of this act, the legislature has authorized municipalities to acquire property by condemnation in order to provide industrial and commercial sites and the means of transfer from the municipality to private users.

What plaintiffs-appellants do challenge is the constitutionality of using the power of eminent domain to condemn one person's property to convey it to another private person in order to bolster the economy.   They argue that whatever incidental benefit may accrue to the public, assembling land to General Motors' specifications for conveyance to General Motors for its uncontrolled use in profit making is really a taking for private use and not a public use because General Motors is the primary beneficiary of the condemnation.  

The defendant-appellees contend, on the other hand, that the controlling public purpose in taking this land is to create an industrial site which will be used to alleviate and prevent conditions of unemployment and fiscal distress.  The fact that it will be conveyed to and ultimately used by a private manufacturer does not defeat this predominant public purpose.

The power of eminent domain is to be used in this instance primarily to accomplish the essential public purposes of alleviating unemployment and revitalizing the economic base of the community. The benefit to a private interest is merely incidental. If the public benefit was not so clear and significant, we would hesitate to sanction approval of such a project. 

RYAN, Justice (dissenting).  This is more than an example of a hard case making bad law [;] it is, in the last analysis, good faith but unwarranted judicial imprimatur upon government action taken under the policy of the end justifying the means.

It was, of course, evident to all interested observers that the removal by General Motors of its Cadillac manufacturing operations to a more favorable economic climate would mean the loss to Detroit of at least 6,000 jobs as well as the concomitant loss of literally thousands of allied and supporting automotive design, manufacture and sales functions.  There would necessarily follow, as a result, the loss of millions of dollars in real estate and income tax revenues. 

[General Motors had announced its intention to close the plant and move to the South unless the site of the Cadillac plant could be significantly improved.  GM asked the City of Detroit to make extensive improvements to the freeways, streets, sewers, and other aspects of the site.  If those changes were made, GM said that it would keep the Cadillac plant open.  The cost of the acquisition of the property and of making these improvements was over $200 million.  The City intended to sell the site to General Motors for $8 million.]  Faced with the unacceptable prospect of losing two automotive plants and the jobs that go with them, the city chose to march in fast lock-step with General Motors to carve a "green field" out of an urban setting which ultimately required sweeping away a tightly-knit residential enclave of first- and second-generation Americans, for many of whom their home was their most valuable and cherished asset and their stable ethnic neighborhood the unchanging symbol of the security and quality of their lives. 

It is plain, of course, that condemnation of property for transfer to private corporations is not wholly proscribed.  For many years, and probably since the date of Michigan's statehood, an exception to the general rule has been recognized.  The exception, which for ease of reference might be denominated the instrumentality of commerce exception, has permitted condemnation for the establishment or improvement of the avenues of commerce-highways, railroads, and canals, for example. It cannot for an instant be maintained, however, nor has anyone suggested, that the case before us falls within the instrumentality of commerce exception. It may be argued, however, that the fact that the case before us lies outside the exception does not end the inquiry if the reasons justifying the existing exception are present here.  I turn now to determine whether such reasons exist.

Examination of the cases involving the instrumentality of commerce exceptions reveal[s] that three common elements appear in those decisions that go far toward explicating and justifying the use of eminent domain for private corporations: 1) public necessity of the extreme sort, 2) continuing accountability to the public, and 3) selection of land according to facts of independent public significance.

With regard to highways, railroads, canals, and other instrumentalities of commerce, it takes little imagination to recognize that without eminent domain these essential improvements, all of which require particular configurations of property-narrow and generally straight ribbons of land-would be "otherwise impracticable"; they would not exist at all.  [I]t could hardly be contended that the existence of the automotive industry or the construction of a new General Motors assembly plant requires the use of eminent domain.

One of the reasons advanced by the defendants as justification of the taking in this case, and adopted by the majority, is the claim of alleviation of unemployment.  Even assuming, arguendo, that employment per se is a "necessity of the extreme sort," there are no guarantees from General Motors about employment levels at the new assembly plant.  ...  But the fact of the matter is that once [the Central Industrial Park or CIP] is sold to General Motors, there will be no public control whatsoever over the management, or operation, or conduct of the plant to be built there.  ...  The level of employment at the new GM plant will be determined by private corporate managers primarily with reference, not to the rate of regional unemployment, but to profit. 

With this case the Court has subordinated a constitutional right to private corporate interests.  As demolition of existing structures on the future plant site goes forward, the best that can be hoped for, jurisprudentially, is that the precedential value of this case will be lost in the accumulating rubble.

Questions-

(a) Would you characterize what the City of Detroit intends to do with this land as being the provision of a public good?

(b) Justice Ryan describes the area where the taking is to occur as a "tightly-knit residential enclave of first- and second-generation Americans, for many of whom their home was their most valuable and cherished asset and their stable ethnic neighborhood the unchanging symbol of the security and quality of their lives."  If this description is accurate, does it raise any special efficiency concerns about the government's taking this property at fair market value?  Specifically, is there a particular problem here in under-compensating the residents of Poletown for their large subjective valuation on their homes and community?

(c) Evaluate the following interpretation of the Poletown decision:

"The bargaining costs between GM and the neighbors are so high that, even if the valuation of GM's desire to use their property was greater than the valuation on the neighbors' desire to remain where they were, no bargain could have been struck.  What the court is sanctioning here is a hypothetical market transaction that would have taken place but for the level of transaction costs."

(d) What adverse economic incentives might this decision create for future business organizations thinking of leaving Michigan?  What adverse economic incentives might it create for municipal governments in Michigan?

(e) A more recent U.S. Supreme Court case, Kelo vs. New London, addressed the same issue and was decided in the same way as Poletown.  In a dissenting opinion, Justice Sandra O'Connor writes,

"All private property is now vulnerable to being taken, and transferred to another private owner, so long as it might be upgraded - i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public - in the process."

And Dana Berliner, an attorney for the homeowners forced to sell in that case, argued,

"If jobs and taxes can be a justification for taking someone's home or business, then no property in America is safe. Anyone's home can create more jobs, if it is replaced by a business and any small business can generate greater taxes if replaced by a bigger one."

What do decisions like Poletown and Kelo do to property rights?  Would Hobbes support such decisions?  Would Coase?

(f) The right to claim property at "fair market value" can be thought of as protecting property rights via damages rather than injunctive relief.  Would the principles in Calabresi and Melamed support these decisions?