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WEDNESDAY_ JANUARY 2_ 2008 BAR-ILAN UNIVERSITY

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WEDNESDAY_ JANUARY 2_ 2008 BAR-ILAN UNIVERSITY Powered By Docstoc
					                                      T H E B U C H MA N N F A C U L T Y OF L A W
                                  THE CEGLA CENTER FOR INTERDISCIPLINARY
                                              R E S E AR C H OF T H E L AW




                                                    FACULTY OF LAW
                             THE FRANK CHURCH AND J.M. KAPLAN CHAIR FOR LEGAL
                                                R E S E AR C H




                         COMMUNITY AND PROPERTY



                                International Conference
                                       January 2-3, 2008


                                               Organizers:

                         Gideon Parchomovsky and David Schorr



The conference, organized by Gideon Parchomovsky (University of Pennsylvania Law School
and Bar Ilan University Faculty of Law) and David Schorr (Tel Aviv Faculty of Law), eks to
examine property regimes and institutions in which more than one individual holds a property
right in an asset. Various property institutions fall in this category, including commons,
cooperatives, condominiums, corporate property, time-shares, marital property, servitudes, and
zoning, as well as new forms of property developing in connection with computer software and
the internet. This subject raises critical issues including: (1) what purposes do these regimes serve
and what are their justifications? (2) how did they develop? (3) what norms should apply? (4) to
what extent can these regimes be created privately, and in what circumstances is government
intervention necessary? (5) which of the problems raised by such regimes should be dealt with by
property law and which by other areas of law? (6) how do these property institutions influence
the creation and development of social, professional, ethnic and other communities?

While this topic has always been a focus of property-law scholarship, it has lately garnered
increased attention. This is at least partly due to political and social developments such as
privatization, as well as the result of technological developments that create new forms of
community and additional opportunities for sharing, while also calling into question traditional
property institutions. Despite a high degree of interest in the topic, it has been some time since a
conference on the topic of property and community has been held. This conference aims to fill
this void.
                                    Conference Program

                          WEDNESDAY, JANUARY 2, 2008 BAR-ILAN UNIVERSITY



09:30
GREETINGS:     Arie Reich, Dean of the Faculty of Law, Bar Ilan University

09:50-11:00

David Schorr, Tel-Aviv University Faculty of Law
Who Said Blackstone Was A Blackstonian?
Comment: Roy Kreitner, Tel-Aviv University Faculty of Law

         The bogeyman of institutions and theories that make a place for community in property
         law is the ―Blackstonian conception‖ of property, based on Blackstone‘s famous
         identification of property with ―that sole and despotic dominion which one man claims
         and exercises over the external things of the world, in total exclusion of the right of any
         other individual in the universe‖.

         Yet, as anyone who has even skimmed Blackstone‘s Commentaries quickly realizes, it is
         clear that the great expositor of the common law did not believe that this absolutist and
         individualist conception described property as a positive institution of English law.
         Replete with descriptions and justifications of doctrines that recognized and enforced a
         complex web of individual and community interests in land and other resources,
         Blackstone‘s account seems much closer to the ―bundle of rights‖ approach popularized
         by the American legal realists than to the ―absolute dominion‖ view associated with his
         name.

         The first task of this paper (first in time, but secondary in importance) is to make some
         internal sense of Blackstone‘s account of property – how the Commentaries’ discussion of
         exotic ―incorporeal hereditaments‖ such as commons piscary and franchises of free-
         warren, or of more prosaic and familiar institutions such as rights of way and joint
         tenancies, could exist side by side with the famous ―sole and despotic dominion‖
         conception.

         The primary goal of the paper, though, is to examine the ways in which Blackstone was
         invoked by later jurists as authority for property-law propositions. In particular, I am
         interested in how he has been cited by American (and to a lesser extent English) courts
         and writers, whether in connection with the ―sole and despotic dominion view‖ or rather
         in support of doctrines more in keeping with a more complex – and community-friendly
         – view of property. Finally, I would like to propose an answer to the question set out in
         the title, identifying the historical context and motivations for the identification of the
         absolute, individualistic view of property with Blackstone specifically.



11:00-11:15 COFFEE BREAK
11:15-13:35
Abraham Bell, Bar Ilan University Faculty of Law and Fordham Law School
Gideon Parchomovsky, Bar Ilan University Faculty of Law and University of Pennsylvania Law
School
The Devolution of Private Property
Comment: Jacob Nussim, Bar-Ilan University Faculty of Law

         The Article highlights and examines the significant devolutionary pressures in the world
         of property that drive assets from private property ownership toward open access or
         other community property structures.

         The Article‘s counterpoint is Harold Demsetz‘s seminal Toward a Theory of Property,
         which presented a evolutionary account of property rights that has long dominated the
         field. Demsetz‘s highly influential thesis was that assets transition from community
         property to private property regimes whenever transaction costs so warrant. His theory
         of evolution pictured the world of property as a one way progression from community
         to private property.

         Our account highlights the counter forces that drive toward devolution of property
         rights—that is, forces that pushes assets back toward community property.

         First, we show that devolution is increasingly important to property as intellectual
         property takes a more prominent role in the property world. Intellectual property rights,
         unlike ordinary property rights, may be enjoyed non-rivalrously. Consequently, the too-
         rapid depletion that plagues open access regimes without sufficiently cheap regulatory
         mechanisms is not a problem, and increases the relative attractiveness of open access
         regimes as compared to private property.

         Second, we show that rapid technological change disproportionately leads to private
         pressure to release private property into the commons. This is because better theft
         technology and better anti-theft technology often have asymmetric effects. Specifically,
         as individual assets become smaller and divisible, private owners will maximize internal
         benefits not by investing in better anti-theft technology, but by reducing the owner‘s
         ability to enjoy property value through release into the commons.

         Third, we show technological changes, changes in tastes, and a variety of other factors
         may make it no longer cost effective to preserve all aspects of an asset in private
         property. Consequently, over time, some assets are reconfigured, or the dominion of
         their owners curbed, in order to convey important property incidents to the public (and,
         effectively, back into common property). These pressures are part of a larger a three-
         dimensional analysis of property law: the shaping of property law by three forces (or
         dimensions)—number of owners, scope of owner‘s dominion, and asset configuration—
         often requires readjustment of property rights into intermediate positions to satisfy the
         needs of property along one or another of the dimensions. In our three dimensional
         model, property regimes will continue to develop to their optimal form—that which
         maximizes internalized benefits net of transaction costs—but often do so by making an
         efficient move from private to community property.

         Fourth, and finally, we hypothesize that, ceteris paribus, as societies are enriched and the
         relative value of any individual asset to a person‘s total wealth shrinks, we would see
         some devolution of private property. This is due to the fact that legal recognition of
         property rights is a form of publicly provided insurance for the stability of asset
         enjoyment. As the relative value of the asset to a person‘s total wealth shrinks, the value
         of insurance might drop.
Amnon Lehavi, Interdisciplinary Center Herzliya, Radzyner School of Law
How Property Can Create, Maintain, or Destroy Community
Comment: Yishai Blank, Tel-Aviv University Faculty of Law

         Property law plays a crucial role in the ability of groups, and especially of geographically-
         adjacent residents, to establish and maintain significant forms of ―community‖ built
         around a social, economic, or ideological common interest. Property may also have,
         however, the opposite effect of undermining or even destroying communities,
         particularly those relying on fragile modes of cooperation.

         This paper identifies three major types of communities: (1) Intentional Communities -
         closely-knit groups which initially organize around a consolidating non-instrumental idea
         (such as cooperative Kibbutzim or religious communes), and that employ informal or
         formal internal norms to validate their common denominator. (2) Planned Communities
         – comprised mostly of residential developments of homeowners associations, which rely
         on a set of conditions, covenants, and restrictions incorporated in the association‘s
         governing documents. Such provisions govern both the establishment and management
         of common amenities as well as intra-neighborhood externalities resulting from the use
         of the privately-owned units, with the purpose of creating stable mechanisms for
         collective action. (3) Spontaneous Communities – clusters of initially unorganized
         geographically-adjacent persons who are able to cooperate and coordinate over time,
         largely through informal efforts and rulemaking. The spontaneous evolvement of such
         forms of organization may be essential to the creation of an interpersonal ―social capital‖
         as well as to a physical and functional improvement of the community‘s surrounding.

         For each one of these types of communities, property law plays a very different role.
         Thus, while Intentional Communities do not hinge strictly upon the existence of a
         supportive exogenous property system to sprout, Planned Communities cannot be
         conceived without the security of an overt formal State-backed regime, whereas
         Spontaneous Communities may often need property law‘s ―affirmative action‖ to thrive
         and enjoy the social and economic benefits of grassroots collective action.


13:35-14:30 LUNCH


14:30-15:40
Gregory Alexander, Cornell Law School
Eduardo M. Peñalver, Cornell Law School
The Properties of Community
Comment: Jose Brunner, Tel-Aviv University Faculty of Law

         The relationship between individuals and communities – particularly the state – is a
         central preoccupation of property theory. Discussions of property rights, from whatever
         perspective, necessarily reflect ideas about the proper domain and limits of individual
         and community power. Even though the relationship between individuals and
         community stands at the conceptual center of property theory, however, the normative
         conceptions of community informing discussions of property are frequently left implicit.
         This is particularly common within discussions of private ownership, which is to say
         within most contemporary property scholarship. In such discussions, the focus is often
         fixed firmly on the person of the ―owner,‖ and all others reduced to the amorphous
         category of ―non-owner.‖ This way of talking about ownership obscures the possibility
         that the ―community‖ might have a moral status that differs from that of neighboring
         owners or of non-owning individuals.
         We begin this short paper by briefly describing three different approaches to community:
         the utilitarian theory underlying a great deal of contemporary property scholarship, the
         ―classical liberalism‖ of Richard Epstein, and Hanoch Dagan‘s progressive contractarian
         theory. Although these theories differ dramatically in their assumptions and conclusions,
         they share several common characteristics. First, all three treat communities as,
         fundamentally, agglomerations of individuals. Moreover, they eschew substantive
         accounts of justice, favoring what Charles Taylor has called ―procedural‖ conceptions.
         We will use these agglomerative, procedural theories of community as a baseline with
         which contrast our own. We propose an ―ontological‖ conception of community that
         views the individual and community as mutually dependent and intertwined. We also
         favor a substantive conception of justice built around the notion of human flourishing.
         Although we are reluctant to embrace any particular label for our view, it is broadly
         Aristotelian in its structure, and finds common ground with theories that have gone
         under the name of ―communitarian,‖ ―liberal communitarian,‖ ―republican,‖ ―civic
         republican,‖ and even certain theories that have called themselves ―liberal.‖ We end the
         paper by briefly describing how our approach would operate in a number of cases.



         15:40-16:00 COFFEE BREAK



16:00-17:10
James E. Penner, King's College, London
Property, Distributive Justice, and Community Comment: Yitzhak Benbaji, Bar-Ilan
University Faculty of Law

         In this paper I shall attempt to show how Hegel fetishises the concept of property,
         under which fetishised concept all values and all political rights are framed as the
         property of the individual subject. I will then look at Rawls‘s theory of justice, and show
         how he shares, in his idea of justice as fairness and his distributive approach to civil and
         economic justice, a similar ‗propertisation‘ of rights, and argue that, on the ‗distributive‘
         assumption which arises from property fetishism, the difference principle is best
         understood as a solution to the problem Hegel raises of the ‗rabble of paupers‘. This
         solution is fundamentally flawed however; it adopts the ‗outlook of the rabble‘,
         misconceiving the notion of community as a means only to restrain coercion and
         violence, rather than as the positive and virtuous instantiation of the institutions of
         collective practical reason. While, in this respect, Hegel‘s political theory framed as
         ‗Ethical Life‘ (Sittlichkeit) is superior to that of Rawls, Hegel‘s property fetishism
         ultimately prevents him from solving the problem of the rabble because he fails to see
         that a fetishised concept of property legitimates the accumulation of power through
         exploitative economic transactions, and thus he fails to exploit his own theoretical tools
         fails to show how the existence of exploitative economic transactions, even if only
         regularly occurring towards a minority of paupers, undermines the freedom and welfare
         of all, and thus undermines the basis ‗in spirit‘ for the existence of community.
                              THURSDAY, JANUARY 3, 2008 TEL AVIV UNIVERSITY



09:30
GREETINGS:         Hanoch Dagan, Dean of the Buchmann Faculty of Law, Tel Aviv University

09: 50- 1 1 : 00
Joshua Getzler, University of Oxford Faculty of Law
Community, Property and the Concept of the Fund Comment: Ron Harris, Tel Aviv
University Faculty of Law

             This paper examines a puzzle – that the most characteristic institutions of modern
            capitalist society are collective property pools known as funds. A fund may be described
            as a collection of assets, often shifting assets, which are segregated from other assets or
            patrimonies in order to be dedicated to a purpose or for the benefit of identified legal
            persons. Fund institutions originated in family and religious groups, but are now a
            mainstay of the financial world.

            The enquiry may be broken up into four thematic fields. First one may interrogate the
            juristic nature of the fund as either property or as rights to property. Anglo-American
            common-law scholars have recently debated whether a fund is itself a type of property
            held under the veil of a trust or corporation, or whether it is a fiction representing the
            ownership claims over shifting assets within the fund; Professors Penner and
            Worthington of London University, Mr. Nolan in Cambridge, and Professors Goode
            and Rudden at Oxford have made notable contributions here. In the major case of Re
            Spectrum Plus Ltd [2005] 2 AC 680, the House of Lords tilted towards the idea that
            ownership rights reside in the components of the fund from time to time, rather than in
            the fund itself seen as a species of property.

            A second live subject is the identification and division of powers, rights and duties as
            between managers and beneficiaries of funds. One may observe here an increasing
            pressure from offshore jurisdictions to weaken beneficiary property claims and enhance
            managerial control powers. Further issues that deserve closer investigation include the
            division of powers, rights and duties as shared between managers, and as between
            beneficiaries.



            Thirdly, we may investigate civil-law institutions carrying out the function of funds. The
            law here begin with the individualistic concept of dominium as singular, absolute
            ownership of assets ultimately founded on possession of tangibles. In this intellectual
            world abstract funds are harder to accommodate as emanations of property. Instead legal
            entities are postulated with some degree of sui juris legal personality. It may be
            postulated that in both civilian and common law, even the most simple forms of co-
            ownership or common ownership can be seen to create entities in all but name.

            Fourthly, one may investigate the economic and social functions of funds in modern
            times, and see how new usages have put pressure on older legal institutions. It may be
            found that communitarian politics are not always friendly to the fund as a method of
            asset holding; and that conversely, a liberal or individualistic politics may need the fund
            as a bedrock institution of modern market society. A possible reason for this double
            paradox of communitarian individualism and liberal collectivism may be found in a kind
            of institutional crowding-out effect. That is to say, the collective action afforded by the
         liberal fund prevents the emergence of more socialistic institutions; the fund form
         strengthens private wealth and insulates it from state regulation.


11:00-11:15 COFFEE BREAK


11:15-13:35
Stephen R. Munzer, UCLA Law School
Commons and Community in Biotechnological Assets
Comment: Assaf Yaakov, Interdisciplinary Center Herzliya, Radzyner School of Law

         This article advances four theses with respect to biotechnological assets. The term
         "biotechnological asset" has two uses. In its descriptive use, it applies to biochemicals,
         tissues, and members of plant and animal species. In its normative use, it applies to legal
         rights in or with respect to biochemicals, tissues, and members of plant and animal
         species. I concentrate on property rights but also deal with rights that depend on
         contract and tort. Examples of descriptive biotechnological assets include DNA
         sequences, blood samples, body parts, and members of the plant species Hoodia
         gordonii. Examples of normative biotechnological assets include trade secrets in
         annotated databases containing information on expressed sequence tags (ESTs), gene
         patents, rights asserted by tissue providers, and traditional knowledge (TK) pertaining to
         the biodiversity of a region.

         The four theses I defend interrelate commons and anticommons, communities and
         individuals, and different sorts of private property. The theses will not be wholly clear
         without further definition, argument, and illustration, but I state them as follows:

         T1.     One can use community as a starting point to generate patent reform, scientific
         research and medical diagnostics and treatment, and trade secrets and occasionally
         patents on descriptive TK.

         T2.     One can generate or reinforce community as an end point (goal) by:

         (a)     Starting with the promotion of scientific knowledge or granting access

         to it, which can reinforce existing scientific communities and sometimes generate new
         ones; and

         (b)      Starting with normative TK held by indigenous peoples, which can reinforce the
         practical ability of these peoples to survive as distinct cultural groups.

         T3.    On the spectrum from commons to semicommons to private property to
         anticommons, an anticommons might well arise if a biotechnological asset is either:

                 (a)      Fuzzily defined; or

         (b)      a strong candidate for the public domain, but efforts are made to make the asset
         private property.

         T4.     On the spectrum from land to servitudes to personal property to intellectual
         property, there are chain-linked connections between each point on the spectrum and
         the next point that can involve biotechnological assets.

         This article has the following structure. Part I develops a half dozen cases or extended
         examples that form the "data" on which my theses rest. Part II argues for each thesis.
             Part III replies to objections. Part IV articulates the implications of the article. Part V
             concludes




Avital Margalit, Bar Ilan University Faculty of Law
Fans and their Football Clubs: On Property as Belonging
Comment: Amir Ben-Porat, Ben-Gurion University Department of Behavioral Sciences

             For many, players and fans alike, football is not merely a game but also a way of life. The
             football club is a central and constitutive component of the fan's identity, and his/her
             relationship with the club is based on unwavering loyalty and long-term commitment.
             Moreover, being a fan means being a part of a community with its unique culture and
             social order. This community is an imagined one, and yet, at the same time very real.

             The last two decades had witnessed the process of commercialization and
             commodification of football. The world of football changed and the game lost part of its
             soul. With some notable exceptions, upper-level football clubs (for e.g. in the
             Premiership League, La Liga and Seria A) are held and controlled by private owners and
             some are incorporated as public corporations. For the businessmen owning a football
             club, the fans are consumers, a 'captive' source of income.

             The transformation of football from a fan-based-game into a market-commodity is a
             fascinating opportunity to re-examine some basics of property theory. It provides a
             unique case for exploring the complex relationship between individuals and their
             communities (football fans) and the resource that constitutes them or provides the
             platform for the formation of their group (the football club).

             With the changing world of football in mind the paper will examine the meaning of
             fandom and the nature of fans' communities. It will conceptualize the relations between
             fans and clubs as property relations based on a sense of belonging. Perceiving the fans as
             partial-owners of their club as well as being an integral part of the definition of the
             resource (the club) itself, the paper will offer a framework for re-constructing the
             property institution of football clubs, one that will accommodate the interests of both
             formal-owners and fans, as well as the societal interest in preserving the endangered
             game of football.



             13:35-15:00 LUNCH


1 5: 00- 1 6: 1 0
Alberto Musy, Università Del Piemonte Orientale
Playing With Political Transaction Costs: National Infrastructure Projects and Local
Communities
Comment: Ofer Grosskopf, Tel-Aviv University Faculty of Law

             Approaching the high speed trains case (TAV) from a law and economics perspective
             addresses the question of models of realization of large infrastructure projects most
             efficient for the citizens and communities involved. The aim of this paper is to
             demonstrate that Political costs caused by Not In My Back Yard (NIMBY) effects may
             hinder both physical and regulatory takings.
The paper will proceed in two directions. Firstly, it will make a theoretical reconstruction
and comparison of different models of development of large infrastructure projects.
While the most efficient model of development of those projects is physical taking,
costs-benefits balance is altered due to high transaction costs caused by multiple decision
levels. In this case, anticommons dynamics could make it convenient for the state to
adopt models of regulatory takings.

Secondly, the research will proceed by examining the possibility of adopting a different
instrument of citizens/community participation. In brief, investigation will try to
measure the economic value of the ―High Speed Train Asset‖ according to the
contingent valuation method (Carson, Wright, Alberini, Flores, 1995; Hanemann, 1994;
Santagata e Signorello, 2000). The analysis will try to identify the demand for such a
good by asking how much citizens are willing to invest on it, given a fixed amount of
resources and projects, widening the investigation picture about the communities
interested by the infrastructure.

Legal and economics methodology, through the prism of new institutional theory,
supplies the analytic tools on which the paper is based and, arguably, provides the best
instruments for examining the topics under scrutiny.

The first issue under scrutiny addresses the choice of government taking of private
property as the most efficient model for performing large government-sponsored
projects. Property rights economics literature recognizes three categories of takings: 1)
physical taking, 2) regulatory taking and 3) derivative taking (Michelman, 1967 and 1987;
Epstein, 1985; Sax, 1964; Blume and Rubinfeld, 1984; Rose, 1984; Kaplow, 1986;
Rubinfield, 1993; Ellickson, 1996; Fischel, 1997; Heller and Krier, 1999; Dagan 1999,
Bell e Parchomovsky, 2001). These legal tools cause a decrease in the economic value of
private property by either transferring or not private entitlements. However, differences
in classification determine effects which have not to be underestimate: those actions,
whether defined takings, have to be compensated, while the same does not happen with
regard to government‘s free power of regulation and taxation. Thus, from the point of
view of private owners, physical taking is preferable to both regulation and taxation. In
other words, the State, through those instruments which in USA are called regulatory
takings, could decide that landowners of alpine passes bear an ―easement of way by
necessity‖ in case of large infrastructural projects or pay an extra tax whether they do not
want to be object of taking. From the point of view of the State, on the contrary,
physical taking is the most expensive instrument, followed by regulation, while taxation
should be positive in balance. One should consider, however, that governmental
decisions cause also non monetary effects, that is political effects.

Generally, regulation and taxation, have little or no monetary costs for the State, but
high political costs, and little benefits of the same nature, leaving private owners
discontent, damaged and uncompensated. In case of physical takings, on the contrary,
while monetary costs are higher, political costs are usually low because they are not
uniformly distributed, but fall on few individuals. Therefore, in general, when high
monetary costs correspond to low political costs, both private owners and the state will
prefer the instrument of physical taking (Bell and Parchomovsky, 2001).

This costs-benefits balance is, however, altered in unforeseeable ways given the
multiplicity of decisional levels, from both sides (public and private) and the diversity of
incentives (Depoorter, 2006). Excessive fragmentation of property rights, to which
corresponds the so called ―tragedy of the anticommons‖ (Heller, 1998), causes a
permanent increase in transaction costs, which could become prohibitive to the point of
blocking the entire process. Such costs may be divided into costs of negotiation with
multiple actors, information costs and collective action costs, that is the costs of
individual actions coordination.
            The Italian case is a typical example, where government is not centralized but acts
            through several levels, mainly central, regional and local. It could be the case that the
            actor who bears monetary cost of an action is not the same who has the power to decide
            on it (generally on the basis of possible political benefits). The probability of free riding
            behaviours is even higher when one take into account the multiple decisional bodies at
            the same level and additional procedures of popular participation. In particular, when a
            large infrastructure project has a strong impact on local environment (as is the case of
            TAV), participation of citizens, associations and organizations occurs through the
            proceeding of VIA (valuation of environmental impact). Some comparative analysis with
            the French system will be offered.

            The second issue under scrutiny, therefore, tests the possibility to measure the
            desirability of large infrastructure projects using the ―contingent valuation‖ method. The
            investigation is empirical and basically conducted through the compilation and analysis
            of a survey questionnaire which tries to assess how much citizens appreciate the
            realization of the infrastructure project at issue.

            It may result, indeed, that citizens prefer investing public resources differently or that
            preferences of strong interest groups have been overestimated. In comparison with
            procedural participation provided by VIA, contingent valuation allows to enlarge the
            population sample interested in this particular good. In other words, such method of
            enquiry would measure consumers satisfaction including not only the owners whose
            property have been taken and the neighbouring parties, but all subjects which may in
            future benefit, also indirectly, from the accomplishment or defection of the project
            (comprehensive, for instance of the entire population of northern Italy and western
            France).

            The analysis is to be articulated into two different phases. First, the public good (High
            Speed Trains) under evaluation will be defined. The survey questionnaires could be
            prepared according to such definition, which has to be explained through the
            construction of a credible picture simulating the effects of the introduction or dismissal
            of the project in question and possible alternatives.

            In order to measure the value of the good defined in terms of individual willingness to
            pay for it (WTP) or willingness to accept (WTA), a chosen sample will be asked – given a
            fix basket of monetary assets and government‘s project – to choose the good they prefer
            to buy and the amount of money they are willing to spend for it.

            Together with a economic analysis of the legal models of realization of large
            infrastructure projects, the contingent valuation method will provide data about the
            demand for such projects. It could be possible to register idiosyncratic differences of
            valuation of the same good, for instance, in France and in Italy. In addition, a larger class
            of possible consumers of the Tav or Tav free scenarios can be tested – an added value to
            the procedural participation provided by VIA.




16:10-16:25 COFFEE BREAK



1 6: 25- 1 7: 35
Jeremy Waldron, NYU Law school
Community and Property for Those Who Have Neither
Comment: Neta Ziv, Tel-Aviv University Faculty of Law
            Both community and property are, in their ways, exclusionary concepts. Property—or
            certainly private property—is defined in large part by a right of exclusion. And although
            ―community‖ sounds like a warm inclusive word, real-world communities (whether these
            are nations, municipalities, neighborhoods, or clusters of condominiums) often define
            themselves by reference to an array of excluded ―others‖ and they erect fences and
            patrol borders to keep these others out. Enthusiasm for these exclusions is made to
            seem legitimate by the thought that those excluded from my property probably have
            somewhere else of their own to go to, and by the thought that those excluded from our
            community probably also have a community of their own to live in.

            In fact neither thought is entirely justified. As to national communities, there is the
            troubling prospect of statelessness, which we try to avoid by insisting that everyone must
            have some nationality and some country he can be returned to which is prepared to
            accept him. As to local community, we know that in every country there are large
            numbers of people who live as transients and are not welcome or rooted in any
            community. Many such people are formally homeless: there is no piece of private
            property where they are welcome or from which they are not at all times liable to be
            evicted. Their only places of refuge are the substantial patches of public property (like
            parks and sidewalks) which every society maintains for everyone‘s use.

            But public places are not themselves unregulated, and often they are regulated according
            to norms of community and in response to communitarian pressures. If these
            communities are themselves exclusive in character, they tend to reproduce at the public
            property level the exclusions that manifest themselves at the private property level. And
            even if the regulations do not actually involve forbidding outsiders from being or
            remaining in public places, they are often organized around the idea that the main
            purpose of such spaces is to provide a location for activities that, in a well-regulated
            community, will take place outside the home: promenading, picnicking, or just moving
            from one private place to another. Such regulations tend to forbid actions like sleeping,
            washing, or urinating in public, on the (often ill-founded) assumption that anyone who is
            in a public place has a private place to go to for these activities.

            It is important to understand the inhuman character of these modes of regulation in
            societies where there are homeless people. Accordingly this paper attempts to chart and
            analyze the deadly combination of exclusive community and exclusive property that
            these modes of regulation represent. In part this involves condemning and discrediting
            the overuse of communitarian ideas in legal and political theory. Beyond that, the
            normative aim of the paper is to insist upon an understanding of public places that
            restores them to the status of places of general refuge for anyone who lives in a country
            rather than as playgrounds for those who are already secure in their proprietary and
            communitarian status.



1 7: 35- 1 8: 30
GENERAL DISCUSSION AND CONCLUDING REMARKS

Assaf Likhovski, Director of the Cegla Center, the Buchmann Faculty of Law, Tel Aviv University



Additional Paper :Henry Smith, Yale Law School
Community and Custom in Property

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