Property Outlaws

In fine American property tradition, squatters are taking matters into their own hands to respond to the huge inventory of foreclosed, bank-owned homes.  Hernando de Soto reminds us that the origins of many U.S. property titles derived from squatters, and professors Penalver and Katyal have educated us on the important expressive and reformist functions that property outlaws perform.

Would You Take Out A Mortgage To Pay The Lawyer Who Got You Out of Foreclosure?

You are in foreclosure. You have no money to pay a lawyer to get you out of foreclosure and keep you in your house. So, you agree that, if the lawyer succeeds in keeping you in your house, you will take out a second mortgage -- pledging your home as collateral -- to pay your legal fees on a monthly basis. Read about it here.

Pre-argument commentary on AT&T Mobility v. Concepcion

by Deepak Gupta

Here's a roundup of some of the latest commentary on the the Concepcion case, which I'll be arguing tomorrow before the U.S. Supreme Court: 

• Brian Fitzpatrick, Supreme Court case could end class-action suits, San Francisco Chronicle
  

• David Lazarus, Consumers' right to file class actions is in danger, Los Angeles Times

• Amanda Becker, Supreme Court case involving class actions could affect waitresses' suit against Hooters, The Washington Post
  

• Matthew Hathaway, Plenty at Stake in Class Action Case Before Supreme Court, St. Louis Post-Dispatch
  

• Alliance for Justice, AT&T v. Concepcion: Will the Supreme Court Give AT&T A License to Steal?
  

• Ed Mierzwinski, Next Up For the Supreme Court That Brought You Unlimited Corporate Campaign Cash: Do Consumers Have the Right to Band Together To Fight Corporate Crime?, Huffington Post

• Stephen C. Webster, AT&T pushes Supreme Court to demolish right to join class action lawsuits, The Raw Story

• David Horton, AT&T v. Concepcion, PrawfsBlawg

• American Constitution Society, 'The Stakes are High' in AT&T V. Concepcion, ACSblog

Hoofnagle Paper on Identity Theft

Chris Jay Hoofnagle University of California, Berkeley has written Internalizing Identity Theft, UCLA Journal of Law and Technology (2010). Here's the abstract:

Why has identity theft remained so prevalent, in light of the development of ever more sophisticated fraud detection tools? Identity theft remains at 2003 levels – 9.9 million Americans fell victim to the crime in 2009.

One faction explains the identity theft as a problem of a lack of control over personal information. Another argues conversely that identity theft may be caused by a lack of access to personal information by credit grantors. This article presents data from a small sample of identity theft victims to explore a different dimension of the crime, one that suggests alternative interventions.

Drawing upon victim and impostor data now accessible because of updates to the Fair Credit Reporting Act, the data show that identity theft impostors supply obviously erroneous information on applications that is accepted as valid by credit grantors. Thus, the problem does not necessarily lie in control nor in more availability of personal information, but rather in the risk tolerances of credit grantors. An analysis of incentives in credit granting elucidates the problem: identity theft remains so prevalent because it is less costly to tolerate fraud. Adopting more aggressive and expensive anti-fraud measures is extremely costly and jeopardizes customer acquisition efforts.

These business decisions leave individuals and merchants with some of the externalities of identity theft. Victims sometimes spend their own money, and more often, valuable personal time dealing with identity theft externalities. This article concludes by reviewing several approaches to internalizing these costs. Popular approaches specify prescriptive rules to address particularly problematic practices in credit granting, such as using the Social Security number as a password for authentication. These approaches may lead to compliance-oriented approaches and reification. Several commentators have suggested negligence actions as a cure to identity theft, but uncertainty surrounding the duty of care would probably leave many consumers unremunerated. A strict liability regime is suggested because credit grantors are the least cost avoiders in the identity theft context, and because consumers cannot control the credit granting process nor insure against identity theft losses efficiently.

San Francisco Bans Happy Meals

Read about it in this LA Times article. Here's an excerpt:

San Francisco's board of supervisors has voted, by a veto-proof margin, to ban most of McDonald's Happy Meals as they are now served in the restaurants.The measure will make San Francisco the first major city in the country to forbid restaurants from offering a free toy with meals that contain more than set levels of calories, sugar and fat.

And here's the Restaurant Association's response:

Daniel Conway, spokesman for the California Restaurant Assn., bemoaned the ordinance's passage and contrasted it with San Franciscans' exuberant feelings after the Giants won the world series on Monday night. "One day you're world champions, and the next day, no toys for you," Conway said.

HuffPo: Wells Fargo Repossesses Paid-Off Car

Those stories about banks foreclosing on homes for which the mortgage was paid off? Well, it doesn't happen only with homes, as HuffPo reports here.

Are Human Genes Patentable?

The U.S. Department of Justice says that unmodified human genes, even if isolated genomic DNA, are not patentable because they are not "human-made inventions." Some in the biotech industry strongly disagree. Read this New York Times article on the disagreement and DOJ's amicus brief on the topic filed last Friday in the U.S. Court of Appeals for the Federal Circuit.

Times Article: Robo-Signing Nothing New in Debt Collection

Here.  A memorable quote:

Analysts say that affidavit-signers at debt-buying companies appear to have little choice but to take at face value the few facts typically provided to them — often little more than basic account information on a computer screen.

That was made vividly clear during the deposition last year of Jay Mills, an employee of a subsidiary of SquareTwo Financial (then known as Collect America), a debt-buying company in Denver.

“So,” asked Dale Irwin, the plaintiff’s lawyer, using shorthand for Collect America, “if you see on the screen that the moon is made of green cheese, you trust that CACH has investigated that and has determined that in fact, the moon is made of green cheese?”

“Yes,” Mr. Mills replied.

Given the volume of affidavits, even perfunctory research seems impossible. Cherie Thomas, who works for Asta Funding, a debt buyer in Englewood Cliffs, N.J., said in a 2007 deposition that she had signed 2,000 affidavits a day. With a half-hour for lunch and two brief breaks, that’s roughly one affidavit every 13 seconds.

Does The Minimum Wage Help Low-Wage Workers or Put Them Out of Work?

Political liberals like minimum wage laws and increases in the minimum wage because they claim that they help low-wage workers. Conservatives say that they are job killers. (Sometimes they note that a minimum wage law is irrelevant if the market wage exceeds the minimum, but they tend nevertheless to oppose increases in the minimum wage because, they claim, the increases will kill jobs.)

This article by economics professor Nancy Folbre in today's New York Times traces the history of the academic debate on this topic. She also describes what she calls an "important new study" in which the authors "closely analyze employment trends for several categories of low-wage workers over a 16-year period in all counties sharing a common border with a county in another state where minimum wage increases followed a different trajectory." The study finds that "increases in minimum wages had no negative effects on low-wage employment and successfully increased the income of workers in food services and retail employment, as well as the narrower category of workers in restaurants."

Professor Folbre points out that the new study is very technical, and, so, she recommends this "Realnews" video interview with one of the study's authors, professor Arindrajit Dube of the University of Massachusetts at Amherst.

Finally, consider this: Adjusted for inflation, the federal minimum wage is lower today than it was in 1967.

 

Non-Proprietary Innovation

Steven Johnson recently wrote a book called “Where Good Ideas Come From: The Natural History of Innovation.” He's also authored this opinion piece published in yesterday's New York Times on the power of non-proprietary innovation. Here's an excerpt:

In my research, I analyzed 300 of the most influential innovations in science, commerce and technology — from the discovery of vacuums to the vacuum tube to the vacuum cleaner — and put the innovators of each breakthrough into one of four quadrants. First, there is the classic solo entrepreneur, protecting innovations in order to benefit from them financially; then the amateur individual, exploring and inventing for the love of it. Then there are the private corporations collaborating on ideas while simultaneously competing with one another. And then there is what I call the “fourth quadrant”: the space of collaborative, nonproprietary innovation, exemplified in recent years by the Internet and the Web, two groundbreaking innovations not owned by anyone. The conventional wisdom, of course, is that market forces drive innovation, with businesses propelled to new ideas by the promise of financial reward. And yet even in the heyday of industrial and consumer capitalism over the last two centuries, the fourth quadrant turns out to have generated more world-changing ideas than the competitive sphere of the marketplace. Batteries, bifocals, neonatal incubators, birth control pills — all originated either in amateur labs or in academic environments.

Are our intellectual property laws overprotective? Do they protect inventions for too long at too great a cost?