Person: Singer, Joseph
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Singer, Joseph
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Publication Subprime: Why a Free and Democratic Society Needs Law(Harvard University, Harvard Law School, 2012) Singer, JosephIt is common to view "the free market" and "government regulation" as opposites. This way of framing policy and legal questions suggests that regulation inevitably deprives us of freedom. But another word for "regulation" is "the rule of law." The opposition of markets and regulation makes it easy to forget that markets are defined by a legal framework that sets minimum standards for social and economic relationships. We can better appreciate the legal framework of markets by remembering that regulation was needed to abolish feudal relationships, to prohibit relations of servitude, slavery, and racial inequality, and to spread access to property by redistributing property rights from lords to tenants and slave holders to slaves. Libertarian calls for deregulation fail to recognize the extent to which regulation was needed historically to create a society of free and equal persons with widely dispersed property ownership. Regulations are also needed to define property rights and to protect individuals from fraud and unfair or deceptive practices in market transactions. Libertarian ideals actually support a great deal of supposedly liberal legislation. Further, Americans demand regulations that go far beyond those championed by libertarians, as evidenced by the consumer protection laws and myriad regulatory statutes in force in every state, as well as in federal law. Although Americans tend to talk like "small-government" libertarians, we legislate like liberals. Minimum standards regulations do not deprive us of freedom; rather, law promotes both freedom and democracy by outlawing social and economic relationships that are "subprime" because they fall below the minimum standards acceptable for human relationships in a free and democratic society. It is time we acknowledged the regulations we too often take for granted. If we do that, we can debate what those laws should be, rather than focusing on a false debate about whether they should exist at all.Publication Property Law and the Mortgage Crisis: Libertarian Fantasies and Subprime Realities(Thomson Reuters (Professional) Australia, 2011) Singer, JosephLibertarian thinking is on the rise in the United States, but libertarians wrongly characterise regulation as a deprivation of both freedom and property rights and an inefficient interference with the free market. While libertarians are correct to praise the value of freedom, they fail to appreciate how regulations promote liberty, property and efficiency. The subprime crisis reminds us that neither property nor liberty nor the market can exist without law. Laws establish minimum standards for economic and social relationships appropriate to a free and democratic society that treats each person with equal concern and respect. Property rights are structured by law to protect consumers from unfair practices and to ensure that economic relationships comply with minimum standards of decency.Publication Foreclosure and the Failures of Formality, Or Subprime Mortgage Conundrums and How to Fix Them(2013) Singer, JosephThe subprime mortgage crisis was not only an economic disaster but posed challenges to traditional rules of property law. Banks helped create the crisis by marketing mortgages through unfair and deceptive practices. They induced many consumers to take out high-priced loans they could not afford and then passed the risk to investors who were fooled into thinking these were safe investments. These practices violate traditional norms underlying both consumer protection and securities regulation statutes. In addition, U.S. banks greased the wheels of the mortgage securitization process by creating a privatized mortgage registration system that has undermined the clarity and publicity of property titles. Because of securitization procedures and the lax record-keeping practices, the banks have undermined the property recording system; we no longer have clear public titles to real property in the United States. To fix the mess they left us, we must adopt norms to govern the mortgage market that will protect both homeowners and investors from predatory loans while promoting legitimate property transactions. We also need to fix the mortgage registration system so we have a legal infrastructure for property that both works well and reflects the norms of a free and democratic society.Publication Property as the Law of Democracy(Duke Law School, 2014) Singer, JosephIn both his article Property as the Law of Things and his prior work, Professor Henry Smith has revitalized property law theory by emphasizing the architectural role that property plays in private law and the ways in which modular property rights reduce information costs and promote both property use and transfer. I applaud Smith's insistence that we focus on the systemic nature of property rights and the benefits of bundled entitlements. At the same time, it is important to understand the limitations of Smith's analysis. Property law goes beyond managing the complexity of human interaction. Property not only presents a coordination problem but also a constitutional problem. Many issues fundamental to property law systems require attention to the norms, values, and ways of life that a society embraces. The problem is not just how to grease the wheels of social interaction; the problem is how to determine the character of that interaction. Value choices must be made to determine what property rights can be created, how many owners we should have, who can become an owner, how long rights last, and what obligations owners should have. Because we live in a free and democratic society that treats each person with equal concern and respect, we must interpret the fundamental values of liberty, equality, and democracy to define the set of property rights that we can recognize. Property law is not simply about best management practices or coordination in the face of scarcity. Democracies elect leaders who pass laws that establish minimum standards for social and economic relationships compatible with our justified expectations and our considered judgments about what it means to treat others with dignity and respect. Property law is not just a mechanism of coordination; it is a quasi-constitutional framework for social life. Property is not merely the law of things. Property is the law of democracy.Publication Something Important in Humanity(Harvard University, Harvard Law School, 2002) Singer, JosephPublication Tribal Sovereignty and Human Rights(2014) Singer, JosephPublication Justice and the Conflict of Laws(1997) Singer, JosephPublication Titles of Nobility: Poverty, Immigration, and Property in a Free and Democratic Society(Association for Law, Property and Society, 2014) Singer, JosephPublication Property Law Conflicts(Washburn University of Topeka, 2014) Singer, JosephWhat law applies to real property? At one time the answer to this question was simple: the law of the situs. But then the choice-of-law revolution came and legal scholars began to see reasons to depart from the situs law rule. As interest analysis and the most-significant-relationship test developed, legal theorists undermined the logical and normative basis for such a simple solution to the choice-of-law problem. In recent years, however, the situs rule has been rehabilitated and increasingly defended by some scholars while others have continued to subject it to criticism. And in fact, the rule was never dislodged in practice and it remained the presumptive rule in the Second Restatement of Conflict of Laws. Even today, courts generally apply situs law to real property issues, although important exceptions have developed over time and some brave judges have deviated from the rule in certain classes of cases. Rather than argue for or against the rule, this article explains the difference between the false conflicts cases where only one state has a legitimate interest in applying its law and the true conflicts cases where two (or more) states have such interests. That analysis shows cases under which situs law clearly should and clearly should not apply, as well as the true conflict cases that are hard because they present value conflicts generating good reasons both for application of situs law and for deviating from it. Those hard cases are of four types: (a) conflicts between situs law and the law of the domicile of one of the parties; (b) conflicts between situs law and the place where a contractual relationship is centered; (c) nuisance-type cases where the conduct is in one state and the injury is in another; and (d) the special case of federal Indian law which involves the paradoxical case of overlapping situses. The article concludes by addressing the renvoi problem. Real property law has traditionally required application of renvoi for issues involving title to real property. This article explains the reasons why that is so and why those reasons are less powerful than we may have thought.Publication The Reliance Interest in Property Revisited(2011) Singer, Joseph
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