Monday, March 25, 2013
Marc Poirier (Seton Hall) has posted Brazilian Regularization of Title in Light of Moradia, Compared to the United States’ Understandings of Homeownership and Homelessness, __ U. Miami Inter-Am. L. Rev. ___ (forthcoming). Here's the abstract:
This Essay considers the cultural resonances of regularization of title (regularização) for homeownership in the favelas of Rio de Janeiro. It compares those resonances to the cultural meaning of homeownership in the United States. Brazil’s approach is informed by an understanding of moradia, a right to dwell someplace, that is a far cry from its typical English translation as a right to housing. Brazil also draws on constitutional provisions and a long Latin American tradition concerning the social function of property, as well as a general theoretical understanding of the right to the city and of cidadania, a certain kind of citizenship. All of these frames construct homeownership as a gateway to interconnection and full participation in the life of the city. This is distinctly different from the individualistic cast of the prevailing understanding of homeownership in the United States, as personal success and the achievement of wealth, status, and a private castle.
The Essay also considers the standard United States construction of homelessness, which again tends to frame the issue in terms of individual responsibility or blame or of the role of institutional structures as they affect individuals, and typically fails to recognize the effect of having no property on relationships and interconnectedness and ultimately citizenship. The Essay advances five reason for the differences between Brazilian and United States understandings of homeownership. These include very different histories concerning the distribution of public lands; the absence in United States property jurisprudence of anything like the notion of a social function of property; the physical invisibility of informal communities in the United States; United States jurisprudence’s rejection of vague, aspirational human rights claims as law; and an insistence in United States jurisprudence on legal monism and an abstract, universalizing account of property ownership that valorizes one-size-fits-all law rather than case-by-case accounts of how land and dwellings are managed by various local communities.
Finally, the Essay observes a recent groundswell of United States scholarship that debunks “A own Blackacre” as an adequate account of the ownership of land and homes, insisting on a more race- and class-informed account as to both the history of homeownership and possible solutions for providing secure dwelling for the poor. The Essay recommends a convergence of studies of informal communities worldwide with a more nuanced, race- and class-informed understanding of homeownership.
Thursday, March 7, 2013
Dave Owen (Maine) has posted Taking Groundwater. The abstract:
In February, 2012, in a case called Edwards Aquifer Authority v. Day, the Texas Supreme Court held that landowners hold property rights to the groundwater beneath their land, and that a regulatory restriction on groundwater use could constitute a taking of private property. The decision provoked strong reactions, both positive and negative, throughout the world of water law, for it signaled the possibility of severe restrictions on governmental ability to regulate groundwater use.
This Article considers the deeper issue that confronted the Texas Supreme Court, and that has confronted other courts across the country: how should the Takings Clause of the Fifth Amendment, and parallel clauses of state constitutions, apply to groundwater use regulation? Initially, this Article explains why this issue is exceedingly and increasingly important. It then reviews all of the groundwater/takings decisions from federal and state courts in the United States. Finally, the Article considers the implications of foundational property theories for the application of takings doctrine to groundwater use.
The analysis supports two key conclusions. First, it undermines arguments against treating water rights as “constitutional property” — that is, property protected by federal and state takings clauses. Proponents of those arguments generally assert that treating water rights as property has uneven support from prior caselaw and that such treatment will be prevent sensible governance. A review of groundwater caselaw demonstrates that the former assertion runs counter to the weight of authority, and that the fears underlying the latter argument are overstated. Second, and more importantly, the analysis undermines arguments for granting groundwater use rights heightened protection against regulatory takings. Recently, litigants and commentators skeptical of government regulatory authority have widely advanced those arguments. But they find no support in past groundwater/takings caselaw, and no property theory justifies adopting such an approach.
An important issue, and a reminder that state supreme courts continue to play a crucial role in shaping modern property law.
March 7, 2013 in Caselaw, Constitutional Law, Environmental Law, Property, Property Rights, Scholarship, State Government, Sustainability, Takings, Texas, Water | Permalink | Comments (0) | TrackBack (0)
The Association for Law, Property, & Society (ALPS) annual meeting is coming up, and the deadline to register and/or submit paper or panel proposals has been extended to Friday, March 15. From the CFP:
The ALPS 4th Annual Meeting, http://www.alps.syr.edu/meetingsandconferences.aspx, will be held at University of Minnesota Law School, April 26-27, 2013. Our annual meetings attract over 100 participants, approximately one third of whom come from outside of North America and a number of whom do interdisciplinary work.
A couple of additional draws this year: first, Professor Carol Rose will be the honoree and keynote speaker; second, the ALPS conference is immediately following a related conference in energy/environmental law onsite:
The Consortium on Law and Values in Health, Environment & the Life Sciences will be hosting a conference on Legal and Policy Pathways for Energy Innovation on April 24 and 25,
So, as someone on the listserv said, it's a Minnesotapalooza! UM prof and ALPS leader Hari Osofsky is overseeing both.
Remember, ALPS takes pride in hosting a collegial, accessible conference for scholars at all career stages and with various disciplinary interests. Including, but not limited to . . .
· Civil Rights & Inequality (including Race, Gender, Religion, Income, Disability, etc)/Critical Legal Studies
· Economics and Property Law
· Energy/Environment/Climate Change
· History of Property
· Housing/Urban Development/Mortgages and Foreclosure
· Indian Law/Indigenous Rights Law
· Intellectual Property
· International Property Law/Human Rights and Property/Cultural Property
· Land Use Planning/Real Estate/Entrepreneurship
· Property and Personhood/Concept of Home
· Property Theory
· Takings and Eminent Domain
· Teaching Property
So if you haven't submitted or registered yet, now's the time to sign up for ALPS in Minnesota this April.
We are pleased to share with you our latest fact brief: Sandy's Effects on Housing in New York City (PDF) Our report is the first independent, comprehensive analysis of the Superstorm's impact on housing in New York City.
The study revealed some surprising insights into the impacts of the Superstorm Sandy. It found that low-income renters were disproportionately impacted by the storm's surge; over half of the victims were renters, 61 percent of whom make less than $60,000 per year, instead of middle-class homeowners. It also exposed the age of the housing stock affected by the surge; 82% of the properties hit by Sandy were built before 1980, before the latest flood maps and building standards were established.
The report also summarizes newly available information about the characteristics of properties in the area in New York City flooded by Sandy's storm surge, as well as demographic characteristics of households that have registered to receive assistance from FEMA. The study was released in partnership with Enterprise Community Partners, who provided a similar analysis on Long Island and New Jersey.
Lots of interesting maps and data in this report, which should be of interest to anyone researching law, land, housing, and disaster planning
March 7, 2013 in Affordable Housing, Beaches, Coastal Regulation, Community Economic Development, Environmentalism, Federal Government, Housing, Local Government, New York, Property, Redevelopment, Scholarship, Water | Permalink | Comments (0) | TrackBack (0)
Wednesday, February 27, 2013
[Registration here]. Many of you know that the annual meeting of the Association for Law, Property, and Society (ALPS) has quickly become THE place to be for academic discussions in property, land use, real estate, IP, and local government and environmental law--in short, everything that is considered to be in the universe of "property" is more than welcome at ALPS. It's been a really interesting, rewarding, and collegial conference in its first few years, and again, it's almost immediately become the central annual confab for property and land use profs. To wit:
We welcome papers on any subject related to property law and from a diversity of viewpoints. Property related topics areas can include but are not limited to:
Civil Rights & Inequality (including Race, Gender, Religion, Income, Disability, etc)/Critical Legal Studies
Economics and Property Law
History of Property
Housing/Urban Development/Mortgages and Foreclosure
Indian Law/Indigenous Rights Law
Intellectual Property • International Property Law/Human Rights and Property/Cultural Property
Land Use Planning/Real Estate/Entrepreneurship
Property Theory • Property and Personhood/Concept of Home
Takings and Eminent Domain • Teaching Property
The deadline for paper proposals is this Friday, March 1. This year there is also the option to register to attend without a proposal, which makes participation even more accesible to everyone in the field.
I have to clear a couple of calendar items myself too, but I really hope to see all of you In Minneapolis on April 26-27 for ALPS. And on behalf of the ALPS Membership & Outreach Committee, feel free to contact me with any questions.
Wednesday, February 20, 2013
Christopher Serkin (Brooklyn) has posted Affirmative Constitutional Commitments: The State's Obligations to Property Owners, Brigham-Kanner Property Rights Conference Journal, Forthcoming. The abstract:
This Essay, prepared for the 2012 Brigham-Kanner Property Rights Conference, argues that social obligation theories in property generate previously unrecognized obligations on the State. Leading property scholars, like Hanoch Dagan, Greg Alexander, and Eduardo Peñalver, have argued that the institution of property contains affirmative duties to the community as well as negative rights. This Essay argues that those affirmative duties are two-way streets, and that moral bases for social obligations also generate reciprocal obligations on the State to protect property owners. The social obligation theories rely upon a dynamic not static vision of property rights. The community’s needs change, the conditions of ownership change, and the appropriate allocation of benefits and burdens within a society changes over time. Therefore, a legal obligation that is justified and permissible at the time it is enacted because it is consistent with moral obligations may become impermissible over time, even if the content of the legal obligation does not change. At the extreme, the State’s failure to respond to certain kinds of changes in the world can lead to a regulatory taking.
An interesting and important take on some of the implications of progressive property theory. Especially interesting is Serkin's appreciation for the changing social notions of property over time, and how that challenges static notions of property rights and obligations.
Elizabeth Plummer (Texas Christian) has posted The Effects of Property Tax Protests on the Assessment Uniformity of Residential Properties, forthcoming in Real Estate Economics. The abstract:
This study examines whether the appeals process improves assessment uniformity for residential properties. The sample includes all single family residential properties in Harris County, Texas, for 2006-2008. I use a hedonic pricing model and Heckman’s two stage approach to explain the assessed values of all properties before and after the appeals adjustments. Full sample results suggest that the appeals process increased assessment uniformity and that the value adjustments were appropriate in amount. I also present results across properties of different values (low, medium, high). The first stage probit model provides evidence on the factors that affect the likelihood that an owner will protest.
I'm personally excited to see this study of real estate value effects in my own backyard, here in The Unzoned City.
Tuesday, January 1, 2013
Robin Kundis Craig (Utah) has posted Treating Offshore Submerged Lands as Public Lands: An Historical Perspective, forthcoming in Public Land & Resources Review (2013). The abstract:
When President Harry Truman proclaimed federal control over the United States’s continental shelf in 1945, he did so primarily to secure the energy resources — oil and gas — embedded in those submerged lands. Nevertheless, the mineral wealth of the continental shelf spurred two critical legal battles over their control and disposition: First, whether the federal government had any interest in the first three miles of continental shelf; and second, if so, whether the federal government had authority to regulate the continental shelf under traditional federal public land laws, such as the Minerals Leasing Act. Congress’s reactions to federal courts’ resolutions of these questions, embodied in 1953 in the Submerged Lands Act and the Outer Continental Shelf Lands Act, continue to provide the foundations for state and federal management of the nation’s continental shelf and its energy resources.
Nevertheless, the Outer Continental Shelf’s status as federal public lands remains ambiguous. This
Article takes an historical approach to assessing that issue, reviewing the traditional definition of federal “public lands” and the historical context of the public lands issues that arose for the Outer Continental Shelf. It concludes that the Outer Continental Shelf, from a natural resources perspective, qualifies as the newest of the federal public lands, but it also acknowledges that — unlike for many other public lands — federal statutes repeatedly and consistently exclude the states from gaining ownership of those submerged lands.
Saturday, November 17, 2012
Yesterday, Case Western Reserve University School of Law hosted a symposium called The Law and Policy of Hydraulic Fracturing: Addressing the Issues of the Natural Gas Boom. As Steve noted on Property Prof, Professor Thomas Merrill (Columbia) was slated to give the keynote. Case Western's Jonathan Adler was part of the event, and he posted an extensive commentary on Merrill's remarks over on the Volokh Conspiracy. Looks like it was a fascinating talk with lots of observations on how to deal with the potential environmental impacts of fracking, and a perhaps counterintuitive suggestion on the possible upside of the gas boom with respect to climate change. But here, I'll focus on some of Merrill's observations on why fracking developed in the U.S., because it may have a lot to do with property law and land use regulation. As Adler describes:
Why did fracking arise in the United States? Contrary to some analysts, Professor Merrill does not believe it is attributable to federally funded research and development. . . .
Professor Merrill also doubts industry structure has much to do with fracking’s rise either. . . .
A more likely factor is the way U.S. law treats subsurface rights. The U.S. is something of an outlier in that subsurface minerals are the property of the landowner, and not the government. This results in decentralized ownership and control over subsurface rights facilitates experimentation and innovation in figuring out how to exploit and manage subsurface resources.
Further decentralization, and experimentation, results from the federalist regulatory structure. Different states have different regulatory approaches than others, creating opportunities for further innovation and the opportunity for jurisdictions to learn from one another. The existence of a few jurisdictions that will allow a new technology to be tried provides a laboratory from which others may learn, whereas under a more centralized regulatory structure such innovation is unlikely to get off the ground.
The existence of a relatively open infrastructure network – a pipeline system that is subject to common-carrier rules – also plays a role in facilitating entry into the market. These factors have a common theme: decentralization. Taken together, Merrill suggests, they are the most likely source of fracking’s rise in the United States.
Looks like another fascinating event, with participation from a number of land use, environmental, and energy scholars on the subsequent panels. I look forward to the symposium isse in the Case Western Law Review.
November 17, 2012 in Clean Energy, Climate, Comparative Land Use, Conferences, Environmental Law, Environmentalism, Federal Government, Lectures, Oil & Gas, Property, Property Rights, Scholarship, Water | Permalink | Comments (2) | TrackBack (0)
Thursday, November 15, 2012
Jonathan D. Rosenbloom (Drake), our sometime guest-blogger, has posted his latest piece, Defining Nature as a Common Pool Resource, which will be a chapter in Environmental Law and Contrasting Ideas of Nature: A Constructivist Approach (ed. Keith H. Hirokawa) (2013, Forthcoming). The abstract:
One of the many ways in which we attempt to understand our relationship with nature is to define it as a “common pool resource.” This definition incorporates several legal, behavioral, and ecological concepts that seek to capture the intricate and complex place where nature and the governance of nature collide. Once we apply the common pool resource definition to nature, we commit – for better or for worse – to accepting the pre-existing framework in which it operates. This chapter seeks to identify the commitments embodied in the common pool resource framework as it applies to nature. It is an attempt to establish a foundation for forthcoming research on how these commitments influence management of natural resources and whether the commitments are consistent with our idea of nature. The chapter begins with a short background on common pool resources and the understanding of theme in the legal literature. The chapter then turns to five conceptual commitments we make by labeling nature as a common pool resource. The goal of this chapter is to explore the intended and unintended consequences of using the common pool resource definition; and question whether it is a beneficial mechanism for understanding and sustainably managing nature.
Tuesday, November 13, 2012
Tanya Marsh has the details for this month's teleconference at Property Prof. As many of you know, the ABA Section on Real Property, Trust, & Estate Law has been hosting free teleconferences featuring law professors' discussions of recent cases and hot topics in the field. This month's "Professors' Corner" will focus on recent developments in title insurance and title services. Here is the info:
Wednesday, November 14, 2012
12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a..m. Pacific)
Call-in number: 866-646-6488
Tanya will moderate the discussion featuring Professors Joyce Palomar (Oklahoma), Barlow Burke (American), and Eileen Roberts (William Mitchell). Check it out if you are able. Some of us Land Users have had the opportunity to participate in past months' calls, and it's a great way to stay up to date.
Tuesday, October 30, 2012
James S. Burling (Pacific Legal Foundation) has posted The Uses and Abuses of Property Rights in Saving the Environment, 1 Brigham-Kanner Property Rights Conference Journal 373 (2012). The abstract:
While freedom and property may be inseparable, the temptation to sacrifice one or the other to seemingly more critical societal goals is ever present. In the past century, the environmental-related limitations on property have progressed from zoning to advance the social welfare, to utilitarian conservation to preserve the human environment, and more lately to the preservation of the environment for its own sake. With each step, property rights have been impacted further. From the imposition of zoning, to regulatory restrictions on the use of property, and to the mechanism of conservation easements, the control of property by the owners of property has diminished. If freedom and property are truly interrelated, there may be troubling implications on the future of freedom.
Wednesday, October 10, 2012
Some of the most questionable conservation easements are those covering golf courses. A recent summary judgment ruling from the Tax Court highlights the concerns that arise. RP Golf LLC owns 277 acres in Platte County, Missouri where it has two private golf courses. It placed a conservation easement over the golf courses and claimed a $16,400,000 tax deduction (yep that’s $16.4 million to agree not to subdivide its golf courses).
To qualify for tax deductions, conservation easements must have a qualified “conservation purpose” as defined in § 170(h)(4)(A) of the Internal Revenue Code. RP Golf claims that its conservation easements meet two different purpose requirements: (1) open space and (2) natural habitat.
Deductions are allowed for conservation easements that protect open space where such preservation is pursuant to a clearly delineated Federal, State, or local governmental conservation policy. I.R.C. § 170(h)(4)(A)(iii)(II). Missouri does have a general policy to promote open space, but the policy enables counties and the state park board to acquire property rights to protect open space in counties where the population exceeds 200,000. Mo. Ann. Stat. § 67.870. As Platte County has fewer than 100,000 residents, the court concluded the golf course conservation easements were not acquired pursuant to a conservation policy.
Deductions are also permissible where conservation easements protect relatively natural habitat of fish, wildlife or plants. Perhaps somewhat audaciously, RP Golf contends that its conservation easements protect “relatively natural habitat.” It is always a challenge to determine what is “natural” these days and the court found that there disputed material facts on this issue (thus making it inappropriate for summary judgment).
This little cases raises a lot of issues regarding what we protect for whom along with what we consider natural in our increasingly developed world.
- Jessie Owley
Tuesday, October 9, 2012
This month's installment of the ABA Section on Real Property's "Professor's Corner"--a free monthly teleconference featuring scholars' takes on important new property cases and issues--will feature a really hot topic, the proposal for municipal governments to take property by eminent domain to combat the mortgage/foreclosure crisis. The info, via David Reiss (who also recently posted a related public comment):
The program is Wednesday, October 10, at 12:30 pm EDT; 11:30 am CDT; 10:30 am MDT; 9:30 am PDT.
Participant Passcode: 5577419753
This month’s topic is Can/Should Municipalities Use Eminent Domain to Take Mortgages to Facilitate Mortgage Modifications? This conference call will be moderated by Professor James Geoffrey Durham, University of Dayton School of Law. Professor Steven J. Eagle, Professor of Law, George Mason University School of Law, is one of the nation’s leading scholars on eminent domain and regulatory takings. Professor Eagle will discuss whether it is possible for local governments to use eminent domain to acquire notes secured by mortgages in order to resell them to a private party which will then modify them, both under the 5th Amendment to the U.S. Constitution and also under state constitution taking clauses as they have been limited by amendments and statutes seeking to define what is a public use. Professor Robert C. Hockett, Professor of Law, Cornell Law School, is the scholar who in June proposed that municipalities could use eminent domain to acquire mortgages, in order to facilitate mortgage modifications to benefit underwater homeowners, in his article: It Takes a Village: Municipal Condemnation Proceedings and Public/Private Partnerships for Mortgage Loan Modification, Value Preservation, and Local Economic Recovery (download paper). Professor Hockett will discuss his proposal, which has received widespread attention. Professor Dale A. Whitman, James E. Campbell Missouri Endowed Professor Emeritus of Law, University of Missouri, Columbia, School of Law, is one of the premier experts on American property law and one of the nation’s foremost mortgage law scholars. Professor Whitman will discuss the impact that implementation of Professor Hockett’s proposal might have on the mortgage markets.
Check out the free telecast on this very interesting and current issue.
October 9, 2012 in Conferences, Eminent Domain, Financial Crisis, Housing, Local Government, Mortgage Crisis, Mortgages, Property, Real Estate Transactions, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)
The Ninth Annual Brigham-Kanner Property Rights Conference is taking place this week at William & Mary law school in Williamsburg, VA. The conference, named for Toby Prince Brigham and Gideon Kanner, brings together many of the very top property scholars in the country as well as members of the bench and bar. This year the Brigham-Kanner Prize will be presented to Professor James E. Krier (Michigan).
The conference will take place this Friday, Oct. 12, following a Thursday evening event. The conference program looks fantastic and features many of the leading property scholars in the nation. There is still time to register on-line, and I have also been informed that walk-ins are welcome. If you can be there it looks to be a great event.
Friday, October 5, 2012
Lee Anne Fennell (Chicago) is reconceptualizing transaction costs in property as Resource Access Costs, forthcoming in the Harvard Law Review. The abstract:
The Coasean insight that transaction costs stand between the world as we know it and an ideal of perfect efficiency has provided generations of law and economics scholars with an analytic north star. But for legal scholars interested in the efficiency implications of property arrangements, transaction costs turn out to constitute an unhelpful category. Transaction costs are related to property rights in unstable and contested ways, and they comprise a heterogeneous set of impediments, not all of which are amenable to cost-effective reduction through law. Treating them as focal confuses the cause of our difficulties in structuring access to resources (positive transaction costs) with the solution to the cost minimization problem presented by a world featuring scarce resources and positive transaction costs. A broader notion of resource access costs, appropriately subdivided, can correct problems of overinclusion, underinclusion, and insufficient specification in the transaction cost concept. The resulting analytic clarity will allow property theorists to contribute more usefully to solving resource problems.
The concept of transaction costs in property theory plays a big role in land use planning and practice, so reconceptualizing it as "resource access costs" can potentially have a big impact on the way we understand the economics of land use. Check out Fennell's latest must-read piece.
Sunday, September 9, 2012
Tim Iglesias (San Fransisco) has posted Reunifying Property in the Classroom: Starting with the Questions, not the Answers. The abstract:
essay argues that the myriad property doctrines and rules are answers to
several consistent legal questions, and that these questions provide a
useful framework for teaching Property law. The problem with Property
Law courses is that we cover a slew of topics in which we load students
up with a wide variety of (often conflicting) answers to these questions
without ever revealing that all of the doctrines and rules are
responses to the same set of questions.
The proposed framework offers the questions as reference points for navigating the sea of common law Property doctrines and rules. A student still must deal with the treacherous straits of the Rule Against Perpetuities and similar difficulties. However, using the framework of questions she can always look up to see key questions and thereby orient and guide herself to an answer (or set of possible answers).
This is simply a must-read for anyone teaching property and land use. Prof. Iglesias provides a great overview of some of the contested questions in teaching property, and suggests that regardless of the particulars of theory and doctrine that we choose to teach, we can all profit from thinking hard about the common questions that property issues present. The essay might be helpful for property students as well.
Thursday, September 6, 2012
Patricia Salkin (Touro Law Center) has posted Key to Unlocking the Power of Small Scale Renewable Energy: Local Land Use Regulation, Journal of Land Use & Environmental Law No. 27 (2012). The abstract:
This article provides an overview of some of the strategies that have been used to increase the use of small-scale renewables, focusing on non-commercial renewable energy systems installed at the home or business level. The article begins in Part II with a discussion of various renewable energy incentives offered by the federal and state governments to promote the use of these alternative sources of electricity, including financial and permitting incentives. Part III continues with a detailed examination of how the land use regulatory system can be used to promote small-scale renewable energy by employing traditional zoning techniques, asserting that without an appropriate local land use regime, the incentives reviewed in Part II cannot be effectively utilized. Part IV concludes with a warning to local governments that if they fail to accommodate the emerging federal and state policies supporting the siting of renewable energy sources, they may face preemptive statutory measures in the area of land use regulation. This creates perhaps the greatest incentive for local governments to plan and regulate responsibly for promoting the appropriate use of small-scale renewable energy.
Wednesday, September 5, 2012
Chad Pomeroy (St. Mary's) has posted A Theoretical Case for Standardized Vesting Documents. The abstract:
real estate professionals, and lay people throughout the country rely
on the recording system to provide critical information regarding
ownership rights and claims. Indeed, the recording system acts as a
virtually mandatory repository and disseminator of all potential
parties’ claims. This system, in turn, relies on these claimants and
their agents to publicize their claims: property purchasers, lenders,
lien-claimants, title companies, attorneys - these parties interact,
make deals, make claims, order their affairs, and then record. The
information system available to us, then, is only as good as what we
make of it and what we put into it.
As such, it is surprising how little thought has been put into exactly what it is that we record. Should the mortgage of a lender in Ohio look like that of a lender in Florida? Should a deed from an individual in Texas differ from that of a corporation in Nevada? As it stands now, no one familiar with real estate law or commerce would expect different parties in different jurisdictions to record identical, or even similar, instruments. In an immediate sense, this heterogeneity of the recorded documents (“vesting heterogeneity”) does not seem a good thing: parties utilizing the recording system generally seek to make known, or to discern, the same generic type of information – that is, evidence of claims upon property – so why are different forms and types of documents utilized all over the country?
This article analyzes this vesting heterogeneity from a new perspective and concludes that it is, in fact, cause for significant concern. Vesting heterogeneity has arisen organically, growing with the recording system as they both evolved over time. This historical explanation does not, however, excuse the cost associated with such a lack of uniformity. Anyone seeking information with respect to any piece of property must navigate the complexities and uncertainties that arise because all such information is heterogeneous and, as a consequence, difficult to understand and utilize. This represents both a immediate transactional cost and an increased risk of ill-informed behavior.
This is particularly troublesome because this sort of cost-based concern arising from variability has a well-established analogue in property law that the law clearly desires to avoid. That analogue is the cost that would arise if property law were to permit unlimited property forms and gives rise to what is known as the numerus clausus theory. This theory explains the law’s hostility toward new, or different, types of property and holds that such heterogeneity is not generally permitted because of the extremely high informational costs associated with such creativity.
This article suggests that this common law concept can, and should, inform our analysis of vesting heterogeneity and that it precipitates strongly against such lack of uniformity. This is because the costs that drive the numerus clausus to hold that variability should be limited are strikingly similar to those created by variability of vesting documents. As such, this theory is relevant here such that the same analysis should be applied to vesting heterogeneity by asking whether a different (or “new”) document is helpful enough to outweigh the informational costs inherent therein.
Based on this reasoning, this article concludes that the law is wrong to systematically ignore heterogeneity in vesting documents. Instead, a numerus clausus type of analysis should be applied to new or different vesting documents to determine whether any inherent lack of uniformity is defensible. Where it is not, uniformity should be imposed.
Thursday, August 30, 2012
Joseph Singer (Harvard) has posted The Rule of Reason in Property Law (UC Davis Law Review, 2013). The abstract:
rights cannot work if they are not clear, and scholars generally assume
that the best way to attain this goal is to define property rights by
relatively rigid rules. However, recent evidence suggests that the
intuitive view may be mistaken. The subprime crisis shows that clear
rules do not produce clear titles if owners do not follow those rules.
And during the twentieth century property law moved dramatically away
from rigid rules toward flexible standards. Standards turn out to be
crucial to property law, as well as increasingly important in property
Empirical evidence and historical experience alike demonstrate that rules cannot be applied without being supplemented by standards to determine the scope of those rules. Conversely, standards achieve predictability through core exemplars, precedent, and presumptions. Thus rules and standards are less distinct from each other than one might imagine. Standards perform crucial functions for property law. They perform systemic functions to shape the infrastructure and the outer contours of the property system by (1) setting minimum standards compatible with the norms of a free and democratic society, (2) protecting the justified expectations of consumers, and (3) responding to externalities and systemic effects of the exercise of property rights. Standards also determine the scope of property rights by (4) distinguishing cases; (5) resolving conflicting norms; (6) excusing mistakes; (7) escaping the "dead hand" of the past; and (8) deterring the "bad man" from abusing property rights.
A few pages of the article discuss land use regulation and the shift from relatively rigid early zoning to a world in which "[n]egotiated zoning is now the norm." The core of the argument is that:
On the surface, negotiated zoning is less predictable than Euclidean zoning. One either was or was not entitled to build a certain type of structure under the old rules. But of course the predictability of traditional zoning rules was always a bit of an illusion. One could always seek a rezoning of the property by the city council, for example, or sue to obtain a variance. Since zoning boards are political creatures, they tend to grant variances if no one objects.
. . .
In some ways the modern system is more predictable. All one has to do is to obtain agreement among relevant actors within a regulatory framework. Determining whether one can or cannot successfully complete a planned development requires a prediction about whether one can convince relevant audiences that it is a good idea. Experienced developers are likely to be more accurate in guessing whether this is the case than in predicting the outcome of a lawsuit determining whether a rezoning is or is not "inconsistent with the general plan."