An interesting problem in property law is how to divide a parcel of land between two parties, each of whom own an undivided share of the whole. Traditionally, there were two ways to go about this: partition in kind and partition by sale. The former involves a judicial fiat that divides the property into equitable shares. The later involves selling the whole of the property and dividing the proceeds (minus costs!) between the parties.

In most jurisdictions, partition by sale has become the default, as judges have found the task of dividing property equitably to be too full of intricacies and nuances particular to the parties. However, it’s worth noting that partition by sale has its own problems - particularly in monopsony situations in which the only interested buyer is the party moving for partition. So both of these approaches have serious drawbacks, and there has been a lot of commentary on the injustices of the system.

It seems to me that there is a better way. There are simple and demonstrably fair methods of physically partitioning a parcel of property so that each party receives a fair share in their own subjective assessment. These methods seems to offer a solution to the problems of fairness in partition in kind, and I am curious as to whether there are any reasons why it shouldn’t be the default method of equitable partition in simpler cases.

The problem is analogous to the math problems known as n-player fair-division problems, which involve finding methods of dividing a good (typically, a cake, occasionally, a pizza) in such a way that each player feels he receives at least 1/nth of the whole.

The most basic case involves splitting Blackacre among A & B, both of whom have an undivided 50% interest. A solution for this is to have A draw a line dividing the property into two equally halves of equal value, and then have B select the “half” that seems more desirable. Logically, A’s portion should subjectively (to A) be half of the property. A’s cooperation is all but ensured by the fact that if A should make an inequitable ‘cut’, it would risk B taking its preferred parcel, leaving A short. Since B gets to choose its “half” it is guaranteed at least a subjective 50%. It’s worth noting that this game is surprisingly resistent to attempts by parties to take unfair advantage of the other parties subjective valuations of particular sub-parcels. See H. Steinhaus, The problem of fair division, Econometrica 16 (1948) 101-104.

Also, a multi-round version of the same game can be employed for different distributions. For example, if A has a 75% interest, and B has a 25% interest, then it can be fairly partitioned in a 2-round game:

Round 1: A draws a line dividing the property in half, B selects a partition for A.
Round 2: B draws a line dividing the remainder of the property, intersecting the original boundary and the line drawn in round 1, A then selects a partition for itself. The result is a win-win situation - two contiguous properties that each party values at more than his respective share:

By adding a handful of extra rounds, you can achieve similar results for virtually any percentage. There are also somewhat more complex games that function the same way for larger numbers of parties. See Robertson and Webb, Cake-Cutting Algorithms: Be Fair If You Can. A K Peters, 1998.

There are a few problems with this approach:

• There are some fractions which cannot be perfectly, although nearly anything can be approximated
• What do we do about high value sections of property whose value is destroyed if they are divided (for example, the old family farmhouse that B lives in)?
• While this approach balances the subjective valuations of the parties, it does not necessarily maximize the overall social utility of the property. So on a fundamental level there is a trade-off between equitable fairness and economic efficiency.

“If you can talk brilliantly about a problem, it can create the consoling illusion that it has been mastered.”

An explanation for anyone who’s gotten a strange email from me lately:

The iPhone’s oh-so-smart autocorrect feature corrects the words “biz orgs” (as in Business Organizations class) to “big orgy.”

An interesting piece by Armin Vit on Copperplate Gothic. He describes it as having earned a place “among The Designers’ Holy Hatred Font pantheon reigned by Papyrus and Comic Sans.” I mention this because it seems to be the preferred logo font for Davis Polk and Wardwell.

Personally I kind of like it.

It also appears to be the font used in Paul Allen’s business card in American Psycho. Oh my god, it even has a watermark.

When you have hundreds of firms interviewing at your law school job fair, it can be a challenge to tell them all apart. Fortunately, the firms are spending hundreds of thousands of dollars on marketing consultants to explain to us in the universal language of design how different they are. Unfortunately, many of these designs seem to fall prey to convergent tropes. For example, a lot of “two name” firms have been adopting the UNIX pipe logo:

Interestingly, there’s no uniform way to read these logos. “Paul | Weiss” is read “Paul Weiss,” where the “|” in the middle of MoFo’s logo is apparently surrogate for “&.” I’m not sure about Goodwin | Proctor.

Here’s another example with firms that start with the letter “O:”

The best part about this match-up is that Orrick and O’Melveny are a classic example of two firms that people confuse frequently. I can’t wait for the trade-dress lawsuit. I wonder how the “likely to cause confusion” standard of trademark is applied when there already was plenty of confusion between the two firms.

Personally, I tend to associate the O logo more with O-brand Olive Oil:

It’s been almost a year now since I stopped active development on FreeMarket. Over the summer I’ve received some inquiries from people interested in using the software who are wondering where the source code - indeed the entire FreeMarket Website - has gone. There were a number of reasons why I pulled the plug:

1. Support. This is the big one. As a law student I have new priorities now and I can’t help people get a sometimes-ornery software package up and running. Even though I officially stopped supporting the package last fall, making it available on a strictly caveat downloador basis, people would still run into problems with their installations that they were desperate for me to diagnose. It’s just a fact of life online now that people expect software - even free, practically abandoned software - to be supported by its coder. So people were often frustrated when they couldn’t get more than a two-line email out of me. I can sympathize with that - I’ve certainly had my patience tried by many an unresponsive developer - and I don’t want to be in the position of adding to the not-ready-for-primetime reputation of Free software.
2. PHP and MySQL are evolving, and I don’t have the time to continue to test it for the new releases, and each new change to the default install makes it even more likely that the scripts won’t work as intended. This compounds the support issue. I wanted FreeMarket to be something I could be proud of, and not just another piece of buggy, abandoned software.
3. The web is different these days. And not just AJAX - people have different design expectations. FM just felt a little too 2005.
4. I have to face reality. Throughout my 1L year I entertained the fantasy that when summer rolled around I would have time to patch FM back into shape and make it purr. That didn’t happen, and if 2L year continues to be as crazy as the last month it never will.

   I still think a lot about the predictive power of markets, and I hope that the next election year will bring a new rush of interest into the field (IEM is a reliable election-year slow-news-day filler). Hopefully, that will ignite some interest in the scripting community in creating a truly free and flexible PM platform.

   And hopefully those developers won’t decide to go to law school.

Bob Dylan can’t be long for the world these days. At least when he passes, we can look forward soothing our grief with the inevitable army of Dylan imitators. Personally I prefer Dylan impersonators to fake Elvises, if for no reason than a lot of the time it sounds almost like Dylan is impersonating himself.

It made me smile when I found out about this project to record Dr. Suess poetry in an uncanny Dylan impersonation. You really have to listen to them to appreciate their perfection. Unfortunately, the lawyers for the Seuss industry didn’t waste any time shutting down the operation, but I was still able to find these delicious MP3s that were still lingering in the blogosphere:

Too Many Daves
Green Eggs & Ham
Oh the Thinks You Can Think!

I’m a little disappointed that my property class didn’t get to takings until nigh the end of the semester, by which point we were in full must-cover-all-the-remaining-material-in-one-week cruising mode. We barely got to touch the scummy surface of the Kelo opinion.

One thing has always annoyed me about the way we think about eminent domain. Eminent domain, is usually portrayed as the government’s last resort against stubborn property owners. It is rarely applied, we’re told, and only then when the government has failed in negotiation. What these perspectives fail to consider is that eminent domain comes into play long before these cases ever go to court. When the government negotiates with owners in these situations, what it’s really saying is “sell, or we have ways of making you sell.” It’s an offer they can’t refuse. Because eminent domain compensation is based on the fair market value of the seized property, this can have perverse effects on the so-called ‘voluntary’ market.

For example:

The fair market value of the sought property is $50,000. The cost of litigating an eminent domain action would be $20,000. A rational actor, if offered $31,000 for a ‘voluntary’ sale would take the deal, because it would leave him $1000 ahead of his end result under eminent domain. Clearly, no individual, absent duress, would voluntarily sell property at a 38% discount of its fair market value; I have serious doubts as to whether a regime that compels one to do so is compatible with the spirit of the Takings Clause. I find the implications of this much more disquieting than the question of market/personal value.

The problem is compounded by the state’s incentive to over-litigate against holdouts, increasing the expected cost of not settling and driving down the price in the voluntary market. In many respects the system lowers prices for takees in the same way that plea bargains increase average sentences for defendants.

It seems the only way to correct this perverse situation would be to change the calculus to award takees the fair market value plus the comprehensive expense of litigation. This would allow the market in voluntary sales to stabilize at the actual fair market price. Alternatively, the state could provide reasonable representation for public domain actions, to avoid the takee’s incentive to over-litigate.

I had an email conversation about this with Jim Krier, U. of M.’s distinguished property maven and co-author of my textbook. He was sympathetic to the argument, but countered:

… one point to be taken into account to balance against yours is that, given the costs of litigation to the condemning authority, and the unpopularity of forced sales by eminent domain, there are reasons to believe that often the owners of the property in question end up selling voluntarily at very favorable prices, above fair market value and, perhaps, high enough in some instances to capture whatever surplus there might be.

Good point. Still, I’m not entirely comfortable with the idea that unpopularity should be our strongest protection against abuse. Against some minorities, condemnation might prove very popular.

As for the cost of litigation for the government, I am not certain useful that is either. Yes, the government will want to avoid litigation, but the individual will presumably want to avoid litigation more than the government. As such, I don’t think the individual can credibly use the threat of litigation to leverage bargaining power on the government; it’s not an effective bluff unless the individual can convince the government that, by god, he’s crazy enough to do it. However, if the government footed the cost of the individual’s litigation, such a threat would become credible.

Probably the strongest argument would be that development is highly time-sensitive, and that litigation takes time. However, in a large development with multiple hold-outs, I’m not sure it would take longer to resolve, say, five cases as opposed to four.

In any event, at the very least, much more attention needs to be given to the holistic context of eminent domain and its effect on the market for ‘voluntary acquisitions.’

Professor Krier gets the last word:

…there should no doubt be compensation, over and above surplus and the like, to take account of the fact that the mere feature of forcing a sale, at whatever price, interferes with autonomy and in that sense inflicts a cost. But most of this is old stuff and unlikely to result in much change in compensation practice. My own view, discussed in my article with Serkin on Public Ruses, is that some of this is corrected, though only to some degree, by requiring true “publicness” in the public use test, thereby generating benefits in kind.

It didn’t take long for it to become clear that the main knee-jerk reaction to last week’s VA tragedy would be a call for restricted access to gun purchases for people with a history of mental-health problems. This article in the times pretty much the public shock and outrage over this issue. Even the NRA is jumping on the band-wagon. Ordinarily, I’m all in favor for increased gun control, but this is a bad idea - it will end up hindering the cause of mental health while leaving the most at-risk individuals armed and untreated. Here’s some reasons why:

1. Gun control limitations for the mentally ill are not needed

The vast, vast majority of individuals committed for psychiatric care are dangerous primarily to themselves. Limiting gun access for these individuals may not have much effect, because there are many other ways to kill or grievously harm oneself without a gun.

Even for those individuals who do harm others, the vast majority of those harm a single individual close to them. Again, in most cases this kind of murder can be done nearly as efficiently with a simple kitchen knife.

Mass murder (murder of more than 5 people in one event) still remains a rarity in the US, with only a handful of cases in the last decade. Every day there are about 25-40 alcohol-related homicides, not counting those who die due to their own alcohol consumption. It would be far more effective to limit gun ownership to non-alcoholics.

2. Gun control limitations for the mentally ill are counter-productive

The best way to prevent gun violence by the mentally-ill is to insure that they receive effective treatment. The largest obstacle to such treatment is the persistent stigma of mental illness. Gun restrictions on former mental patients would enhance this stigma.

Furthermore, since guns are associated with masculinity in many parts of the country, gun control for the mentally-ill would would equate mental health with emasculation to those individuals. In all likelihood, when told that “if you see a shrink the government takes your guns away” these individuals would avoid treatment. This is particularly worrisome since those gun enthusiasts are most likely to become mass-murderers.

The end result would be that the most dangerous individuals would remain armed and untreated.

3. Gun control limitations for the mentally ill is a civil rights violation

The mentally ill are not convicts. It cannot be argued that they have forfeited their 2nd amendment rights. While there may be a compelling state interest in preventing gun ownership to the presently mentally ill, a blanket ban on former patients would not be sufficiently narrowly tailored.

Part of the problem is that individuals who recover from mental illness no longer pose a special danger. Any law that did not allow for reinstatement of their rights upon a showing of competence would not be sufficiently narrow, in my opinion.

I made a new theme for the web page. I started over from scratch this time - only the menu bar is a holdover from the old “Red is nice” theme. My goal was to make the page look like anything other than Yet Another Two-Column WP Blog. This involved simplifying the general appearance by cutting out a lot of the extraneous blog features. In particular, I’ve hidden all the user, category, comment, and single article view features. I think the end result is something a lot simpler and a little more personal.

Comments, in particular, had to go. There were lots of issues with keeping them on the site. Namely:

1. Comment spam. Vile, hated, comment spam.
2. People who couldn’t get the comments feature to work would send me emails to comment on the site.
3. People who couldn’t get email to work would post personal messages in the comments.
4. “O Comments” after most posts makes me look like a loser.

I plan to eventually put a simple form on the page for people who need to drop me a friendly message and/or death threat.

I originally made an awesome layout using only CSS. Unfortunately, I underestimated Internet Explorer’s amazingly crappy CSS rendering. In the end I had to resort to using heavy javascript to force things into compliance. The final version is written so that it won’t display at all without javascript enabled. So if you’re not reading this because you’re still using Mosaic - sorry. Perhaps some day I’ll get around to making a retro version.

Enjoy!