Thursday, January 12, 2017
Privacy and property rights are tricky subjects for a variety of reasons. One reason is that they have a unique relationship with each other, and this Article focuses on one of those areas of intersection—that of air rights and invasion of privacy. This is a timely topic due to the advent of drones, and this Article will argue that drone surveillance constitutes common law trespass and that any statute or regulation that permits such activity is in derogation of common law and so should be subject to particularly careful thought and consideration.
This is not as straightforward a thesis as one might perhaps think because both property and privacy rights have a murky past and have gone through iterative formulations as society has sought to achieve the right balance between the public and private spheres. Privacy has historically focused on expectations of privacy, and property rights have traditionally provided such expectations, but the legally recognized nature of each has not changed over time to keep pace with technological innovation. This has led to a situation where the kinds of rights and causes of action that have traditionally protected individuals no longer suffice in a variety of circumstances.
In particular, the use of drone technology to engage in sophisticated surveillance presents significant challenges to our existing legal framework. Part I of this Article examines the history of privacy law in some detail, and Part II does the same with respect to the common law of airspace property rights. When these two areas of the law are examined in tandem, it becomes apparent that drone surveillance violates rights that society generally wants to protect and that society has historically protected. That protection, however, is now lacking. There is some reason for the failure of the law to keep up with this type of new technology, and Part III examines the historical “aircraft exception” that many may now believe justifies the law’s acquiescence in the face of drone surveillance. Ultimately, though, this Article concludes that this common law exception is not applicable to drones and that, as such, the law should adapt to protect the public from drone surveillance. Part IV concludes this analysis by making a number of recommendations that state and federal legislatures and various administrative agencies would do well to consider when passing laws and promulgating rules regarding drone technology.
Saturday, January 7, 2017
Bethany Berger (Connecticut) has posted The Illusion of Fiscal Illusion in Regulatory Takings (American University Law Review) on SSRN. Here's the abstract:
In January 2016, the Supreme Court granted certiorari in Murr v. Wisconsin, the first regulatory takings case to be decided by the Roberts Court. Because regulatory takings doctrine has little direct support in constitutional text, history, or precedent, arguments to expand regulatory takings rest heavily on policy grounds. This Article argues that the central efficiency argument for expansion — often dubbed “fiscal illusion” — is based on a surprising mistake. Without compensation, the argument goes, governments operate under a fiscal illusion, because from their perspectives, their actions are costless. The problem is that this argument makes no sense as a description of the actual costs to governments.
Taxation is the main way governments get revenue, and most taxes depend on the value of property and its permissible uses. If governments restrict land so as to reduce its value or the income produced by it, its residents, or its patrons, they generally already feel the loss in their budgets. If the restriction creates benefits, those too are reflected in tax revenues. While there are limitations to the accuracy and efficacy of the tax signal, efficient regulations should roughly have a net positive effect on governmental revenues, while inefficient ones should have a net negative effect. Fully compensating owners, in contrast, does not lead the government to accurately internalize societal costs — it rather adds a new and much larger cost. Because this cost usually far exceeds revenue gains, governments may rationally forgo even efficient regulations. Owner compensation, in other words, does not correct fiscal illusion. It creates it.
Revealing the illusion of fiscal illusion leaves standing much older arguments that compensation is required as a matter of fairness. But by clearing away the main efficiency justification for direct compensation, this Article permits clearer-eyed assessment of whether and to what extent fairness may require compensation, and prevents measures in the name of efficiency that in fact undermine it.
Thursday, January 5, 2017
Greetings from AALS! Yesterday I had the pleasure of attending the Property Law Section's works-in-progress program here in (what is finally today) sunny San Francisco. Donald Kochan (Chapman) kicked off the event with an introduction of the speakers and explained that the purpose of the session was to give faculty an opportunity to share their early to mid-stage reseach projects with senior colleagues in the field. Each presenter was paired with a mentor who commented on the paper and gave feedback.
First, Gregory Ablavsky (Stanford) shared his recent project "The Rise of Federal Title" that looks at the problems of title and land rights in the development of the American West. He notes in his historical piece that although the federal government has typically been viewed as distributing lands and settling land disputes, it actually played a much larger role than is currently appreciated when it came to the actual development of the American system of entitlements to land.
Next was Molly Brady (Virginia) who shared her research on the damagings clause in various state constitutions. She noted that the origins of the provision relate to states wanting to provide a remedy for situations where private property was physically damaged by public works projects (such as street grading). In this work she examines the untold story of the damagings clauses, and notes that state courts have taken a very narrow approach to their application due largely to the influence of federal takings law.
John Infranca (Suffolk) then explained his current work-in-progress--"(Communal) Life, (Religious) Liberty, and Property"--, which examines the role that the concepts of freedom of religion and the right to property play in the recognition of rights more broadly. He explains and then unpacks the ways in which religious freedom and property rights are generally viewed as having a larger role in shaping norms and group rights.
Vanessa Casada Perez (Texas A&M) shared her law and economics work that explores the role that sharing economy platforms play in dealing with issues of parking. She outlines whether local government decisions to ban such platforms/companies can be justified under a public trust theory of public spaces. She then analyzes the up- and down-sides of local government regimes that seek to prohibit the use of pubic spaces for profit-making enterprises using sharing economy innovations.
Lastly, Thomas Simmons (South Dakota) gave a presentation on his research into homestead laws, including exemptions from seizure by creditors and the rights of spouses under martial property regimes. His project gives special attention to the evolution of homestead laws from statute to state constitutional provision.
Great job to the Property Law Section for a really interesting and engaging program!
Friday, December 30, 2016
Local governments typically insure themselves against all kinds of losses, from property damage to legal liability. For small- and medium-sized governments, this usually means purchasing insurance from private insurers or participating in municipal risk pools. Insurance for regulatory takings claims, however, is generally unavailable. This previously unnoticed gap in municipal insurance coverage could lead risk averse local governments to underregulate and underenforce existing regulations where property owners threaten to bring takings claims. This seemingly technical observation turns out to have profound implications for theoretical accounts of the Takings Clause that focus on government regulatory incentives. This Article explores the impact of insurance on land use regulations. In the process, it reveals important insights about public insurance more generally and offers a novel explanation for the burgeoning land use innovation in cities compared to the relative stagnation of land use in the suburbs. It concludes by suggesting new ways for promoting local land use regulations that risk generating takings claims.
Monday, December 19, 2016
This just in from our friends at the University of Hawai'i William S. Richardson School of Law:
Save the Date! The Volume 39 Symposium will take place on Friday, February 17, 2016. One of our panels will focus on the topic of regulation in the context of the home sharing economy. Those wishing to submit articles for the symposium on topics intersecting property law and the sharing economy can get more info here. The Law Review will be accepting submissions through February 17, 2017, for publication in April/May. You can also contact the co-editor-in-chief of the Law Review, Ross Uehara-Tilton, by clicking here.
Friday, December 9, 2016
Monday, December 5, 2016
Call for Presentation and Panel Proposals for Arizona State University's Third Annual Sustainability Conference of American Legal Educators
Arizona State University has issued a call for presentations and panels for its Third Annual Sustainability Conference of American Legal Educators on May 12, 2017. Carol Rose will be this year's keynote speaker. ASU will pay up to $500 lodging/transportation reimbursement for all presenters. Proposal details here.
In addition, associated with the conference is the Morrison Prize Contest, which awards $10,000 for "the most impactful sustainability-related legal academic paper published in North America during the previous year." NOTE: the deadline for the Morrison Contest is Dec. 15, but you need only submit five offprints of your previously published work.
Thanks to Troy Rule for sharing information about the conference.
Thursday, December 1, 2016
Yael Lifshitz has posted Rethinking Original Ownership, forthcoming in the University of Toronto Law Journal. This work is related to Yael's doctoral dissertation in New York University's JSD Program. Here is the abstract:
At the genesis of property, an initial allocation of entitlements takes place. Existing property scholarship identifies two main rules for assigning original ownership – ‘first possession’ and ‘accession’ – and positions them one against another. This article challenges the conventional binary division and the dominance of either first possession or accession as ‘pure’ allocation principles, arguing instead that the ownership of new resources is often allocated through hybrid mechanisms that combine the two rules. This article offers an analysis of hybrid rules and their utility through a novel and contemporary case study of the ongoing allocation of property in wind energy.
Wednesday, November 30, 2016
Bill Fischel at Dartmouth's Department of Economics has posted The Rise of the Homevoters: How the Growth Machine Was Subverted by OPEC and Earth Day on SSRN. Bill prepared the paper as part of a conference at the Kreisman Initiative on Housing Law and Policy at the University of Chicago. It will be included in a publication emerging from that conference. Here is the abstract:
In the 1970s, unprecedented peacetime inflation, touched off by the oil cartel OPEC, combined with longstanding federal tax privileges to transform owner-o ccupied homes into growth stocks. The inability to insure their homes’ newfound value converted homeowners into “homevoters,” whose local political behavior focused on preventing development that might devalue their homes. Homevoters seized on the nascent national environmental movement, epitomized by Earth Day, and modified its agenda to serve local demands, thereby eroding the power of the prodevelopment coalition called the “growth machine.” The post-1970 shift in the American economy from industrial employment to knowledge-based services rewarded college graduates and regions that specialized in software and finance. Residents of suburbs in the larger urban areas of the Northeast and West Coast used existing zoning and new environmental leverage to protect the growth rate of their home values. The regional spread of these regulations has slowed the growth of the economy and perpetuated regional income inequalities. I argue that the most promising way to modify this trend is to reduce federal tax subsidies to homeownership.
Thursday, November 24, 2016
Happy Thanksgiving from all of us at Property Prof Blog! May you be with family, friends, and loved ones today, eating too much turkey, tofu-rkey, cornbread dressing, green beans, mashed potatoes, sweet potatoes, pumpkin pie, pecan pie, and, as it turns out, kale! Yes, you read that right: kale is allegedly “king” this Thanksgiving, at least according to the American Farm Bureau Federation. This year, Americans purchased more kale for Thanksgiving than they did mashed potatoes, brussel sprouts, or tofu. Collard greens still outrank kale for Thanksgiving food purchases, but not by much. This means that when I teach Property next semester and talk about agricultural lands and crops as property, I’m using kale as my example crop.
Happy Turkey (Tofu-rkey) Day to all!
Sunday, November 20, 2016
It may be chilly where you are, but the bright, sunny SEALS is just around the corner! From July 31 to August 6, legal scholars of all disciplines will gather in Boca Raton, Florida to discuss the finer points of the law and enjoy a few cocktails in the sun. Property scholars, fear not, there will be plenty of discussion groups and panels for you! The Property Law team, lead by Marc Roark (Savannah), Al Brophy (UNC), Jamila Jefferson-Jones (UMKC), and myself (Tulane), have put together the following discussion groups and panel proposal for SEALS. If you are interested in participating in any of the below groups/panels, please email Marc Roark.
Discussion Group 1: Property Law before the Current Court
During the Fall 2016 term, SCOTUS has taken on several property related cases. Murr v. Wisconsin presents a takings challenge to conventional zoning rights in the face of potential vested rights and the relevant parcel question. Fair housing reemerges in two consolidated cases before the Court: Bank of America v. Miami and Wells Fargo & Co. v. Miami. And Venezuela v. Helmerich & Payne International, seeks to clarify when a foreign government may be sued in U.S. courts for seizing property located in that country but owned by a U.S. firm. Property scholars will discuss the impact of these decisions on property jurisprudence, theory, and function.
Discussion Group 2: Property, Retroactivity, and Obergefell
In what is thought to be the first decision of its kind in the nation, a judge in Bucks County Pennsylvania recently issued a ruling allowing retroactive recognition of a same-sex common-law marriage. Dr. Sabrina Mauer and Dr. Kimberly Underwood, a gay couple entered into a common law marriage in the early 1990s. They were married in a ceremony in 2015 and three months later, one spouse died. The court held that the marriage actually dated back to the 1990s, which had a number of impacts for Social Security rights and other property that would be the surviving spouse's. In striking contrast, an Alabama judge undid a succession distribution of $1 million because at the time the man died, Alabama didn't recognize same sex marriage, so his spouse could not inherit. The deceased's mother inherited about $1 million. Post-Obergefell, the surviving spouse successfully got the succession reopened and a judge said the deceased's mother had to pay the surviving spouse the $1 million she had received because it was rightly owned by the surviving spouse. This discussion group will consider the retroactivity of Obergefell and how that can impact property rights, be they inheritance, marital/community property, etc.
Panel: Property and Protests
Protests often run against established property regimes, whether they are private property rights, zoning and ordinance enforcement by cities, or claims for property. This panel will present papers around the question of protest as they impact property claims.
The book is written by three transactional lawyers/law professors who believe that the backwards-looking approach of studying property law through reported appellate cases is incomplete. Using the case studies in the book, students are challenged to apply property doctrines prospectively and to think about identifying and addressing client problems in a way that they are not typically challenged to do so during the first year of law school.
The book contains eight case studies that are drawn from our practice, so they are more textured and realistic than artificial hypos. Each case study highlights the legal doctrines that students will use and clearly sets forth the learning objectives of the chapter. For example, Chapter 4: The Case of the Heir's Property includes a case that Heather and Lucy handled in Texas - their client lived in a house that he owned as a tenant in common with other members of his family following several generations of title passing through intestacy. The problem asks students to draw from what they have learned about adverse possession, tenancy in common, and intestate succession. The case study is divided into multiple parts that each focus on discrete tasks or skills (i.e. determining present ownership of the house, adverse possession analysis, etc.) allowing professors to customize the problem.
A comprehensive teacher's manual is being completed and will be available before the end of the year. Interested professors can request a comp copy by clicking here. The book will cost $30.
Monday, November 14, 2016
This just in from our friends at the University of Arkansas at Little Rock William H. Bowen School of Law. Below is a Call for Proposals for the Institute for Law Teaching and Learning’s Summer 2017 Conference, “Teaching Cultural Competency and Other Professional Skills Suggested by ABA Standard 302.” The conference will take place July 7-8, 2017 at the University of Arkansas at Little Rock William H. Bowen School of Law.
The Institute invites proposals for workshop sessions addressing how law schools are responding to ABA Standard 302’s call to establish learning outcomes related to “other professional skills needed for competent and ethical participation as a member of the legal profession,” such as “interviewing, counseling, negotiation, fact development and analysis, trial practice, document drafting, conflict resolution, organization and management of legal work, collaboration, cultural competency and self-evaluation.” The conference will focus on how law schools are incorporating these skills, particularly the skills of cultural competency, conflict resolution, collaboration, self-evaluation, and other relational skills, into their institutional outcomes, designing courses to encompass these skills, and teaching and assessing these skills. The deadline to submit a proposal is February 1, 2017.
For more information, click the following: Download CFP Summer 2017 Bowen Conference_PDF
Friday, November 11, 2016
Kellen Zale (Houston) has posted When Everything is Small: The regulatory Challenge of Scale in the Sharing Economy (San Diego Law Review) on SSRN. Here's the abstract:
The sharing economy — the rapidly evolving sector of peer-to-peer home-sharing and ride-hailing transactions facilitated by platforms like Airbnb and Uber — offers the potential for economic growth, greater sustainability, and expanded access for underserved groups. But the massive number of small-scale activities facilitated by these platforms is also resulting in negative cumulative impacts and exposing regulatory fractures, from the loss of long-term rental housing to discrimination against protected classes to increased burdens on public infrastructure.
This Article contends that scale is a defining feature and fundamental challenge of the sharing economy. Small may be beautiful, but when everything is small, the regulatory challenge is immense. Small-scale activities that once fit the criteria for light or no regulation are occurring at scales at which non-regulation makes little sense. As the sharing economy becomes an increasingly large segment of the public accommodations and transportation markets, the traditional ways we distinguish between activities that we should regulate and those we treat with regulatory leniency no longer fit. Existing regulatory systems, from civil rights and environmental law to consumer protection and tax law, do not map neatly onto the configuration of scale in the sharing economy. This regulatory misfit threatens to result in inequitable and discriminatory outcomes across the sharing economy.
Effective governance of the sharing economy requires a more complete understanding of the role of scale. This Article investigates the implications of scale in the sharing economy, focusing on the prominent sectors of home-sharing and ride-hailing. The Article unpacks how massive numbers of home-sharing and ride-hailing activities are producing negative cumulative impacts and exposing regulatory fractures, which threaten to undermine a range of important public policies — including affordable housing, civil rights, and consumer protection — and considers possible legal regimes for responding to scale.
For all you fellow mortgage finance lovers out there, Dale A Whitman (Missouri-Emeritus) has posted Transferring Nonnegotiable Mortgage Notes (Florida A&M Law Review) to SSRN. Per Dale, the article discusses not only what is known about the legal requirements for transferring nonnegotiable notes, it also discusses at length the following additional topics:
- The history and background of the Holder in Due Course doctrine.
- How to identify whether a note is negotiable (including notes secured by FHA and VA mortgages)
- How negotiable notes (and the mortgages securing them) must be transferred
- The impact of UCC Article 9 on transfers of both negotiable and nonnegotiable notes.
These topics were (and remain) super important as we continue to study the aftermath of the housing crisis and the ways in which financial institutions used the foreclosure system. The linkage between commercial law and property law is not often well-understood, but Dale does a great job showing the connection. Great work, Dale!
Wednesday, November 9, 2016
I know everyone has been paying close attention to the presidential race, but there was something else important happening yesterday: SCOTUS heard oral arguments on whether municipalities can bring claims under the Fair Housing Act (Title VIII of the Civil Rights Act of 1968).
The question originates from a lawsuit filed by the City of Miami against Bank of America that was consolidated with another case where the city sued Wells Fargo. In both cases the city argued that these financial institutions had engaged in a long and targeted practice of making risky loans to minority borrowers (loans that were 5x more likely to result in a default than loans made to white borrowers). Further, the city alleged that in the wake of the 2008 crisis the banks refused to allow these distressed homeowners to refinance or engage in a loan modification, even through they routinely offered such deals to similarly situated white borrowers.
The scope of who can serve as a party under a Fair Housing Act claim raises interesting policy issues. The city argues that it is within the "zone of interest" for standing purposes because the discriminatory loan practices created large numbers of defaults and foreclosures, which in turn resulted in the proliferation of abandoned and blighted properties that hit hard the bottom line of cities when they needed resources the most.
The suit was initially filed against BoA in July 2013 and against Wells Fargo in July 2014, but both were dismissed by the district court for lack of standing and on the basis that the city had failed to prove that the bank's behavior was the proximate cause of the harm alleged. In September 2015, the 11th circuit remanded both of these cases for further proceedings on the proximate cause determination and held that the city did indeed have standing under the Fair Housing Act.
Now it's up to the eight justices to decide. There are interesting arguments on both sides. The city asserts that local governments are in a unique position to guard against housing discrimination and that because of the collective interest that they represent cities should be allowed to use tools like the Fair Housing Act to police bad behavior. Incidentally, this is in line with a recent article by Kathleen Engel at Suffolk University regarding local government responses to the housing crisis. The financial institutions, on the other hand, argue that the city's position would take the scope of the Fair Housing Act too far and that the connection between the loss of property tax revenues and discriminatory lending practices is too attenuated and specultaitve in this case to provide relief to the city.
Stay to tuned to see what happens!
Monday, November 7, 2016
As Kate McKinnon (playing Hillary Clinton) said on Saturday Night Live last week, “We can’t tell you who to vote for, but on Tuesday, we all get a chance to choose what kind of country we want to live in.”
I, too, reflect what McKinnon said—vote for whomever you want, but by all means, go out and vote. And while you are voting, remember the history of voting rights and how voting rights historically have been tied to property ownership. Voting rights in the colonies before the American Revolution were extended only to “freeholders,” freeholders being white men who owned land worth a certain amount of money. After the American Revolution, most states continued to include a requirement that voters owned property, believing that a voter should have an “economic stake” in society before he could be trusted to vote. (Shout out to Vermont for being in 1791 the first state to eliminate all property ownership requirements for voting.) For an interesting history on how property ownership impacted voting rights, read now-Professor Jacob Katz Cogan’s (Cincinnati) student note, The Look Within: Property, Capacity, and Suffrage in Nineteenth-Century America, 107 Yale L.J. 473 (1997).
Today, whether you own property does not impact whether you can vote for Clinton or Trump, and that is a positive change for the country. So if you haven’t already, go exercise your right to vote today and be happy you don’t have to prove how much land you own in order to cast your ballot.
Happy Election Day! Go vote!
Saturday, November 5, 2016
I just received the sad news of the passing of Andre van der Walt. Andre was the South African Research Chair in Property Law and a Distinguished Professor of Law at Stellenbosch University in South Africa. A champion of progressive theories of property, Andre made major contributions to South African constitutional property rights law and educated many generations of lawyers and property scholars. His many excellent books, articles, chapters, and other contributions can be found here.
He will be deeply missed.
Friday, November 4, 2016
- Kathryn (“Kappy”) Allen, Graves Dougherty Hearon and Moody, Austin, TX
- Carl Circo, Ben J. Altheimer Professor of Legal Advocacy, University of Arkansas School of Law
- Beat Steiner, Holland & Hart LLP, Boulder, CO
- Wilson Freyermuth, John D. Lawson Professor of Law and Curators’ Distinguished Teaching Professor, University of Missouri School of Law
Sunday, October 30, 2016
Halloween is a big deal in New Orleans. Everyone dresses up, regardless of whether they are trick-or-treating with children. People deck out their yards with awesome decorations. Law firms shut down early so folks can get to parties. Like everything else in New Orleans, we treat Halloween as one massive party.
This year, I am dressing up as the most property-related item I could think of: a house. And not just any house. I will be going as a house from the board game Monopoly. This goes along with our amazing Monopoly-themed family costume: our eight-year-old is the “In Jail / Just Visiting” space; my best friend is the race car; and my husband is Rich Uncle Moneybags (aka the Monopoly Man). Our costumes are complete with specialized trick-or-treat bags, too: a “get out of jail free card” bag for the munchkin, a series of property deeds for me, Monopoly money for my husband, and dice for the race car game piece. We are all in for a rockin’ and (dice) rollin’ good time this Halloween.
The theme for our family costume was inspired by the absurd amount my family plays Monopoly. In September, we had a month-long game going in which we played for 45 minutes before bed time e-v-e-r-y n-i-g-h-t. I had to make more money because the bank ran out. It was nuts.
Monopoly is a game filled with lessons about property and property law. (Obviously there are lessons about why we need antitrust law, too, but those are pretty apparent given that the name of the game is monopoly.) Some properties are more profitable to own than others, and the most profitable are not always the most expensive. Take Mediterranean and Baltic. Cheapest board spots to buy, but even if you get a hotel built on them, it will only cost $450. Or take Boardwalk or Park Place. Sure, they are the most expensive and it will cost $2,000 in rent once there’s a hotel on Boardwalk, which is almost always enough to knock someone out of the game. But it also costs $200 per house, which means you have to fork out $1,000 before you get a hotel and most people don’t have that type of dough laying around in the game.
No, the best properties to get are the pink (St. Charles, States, Virginia), orange (St. James, Tennessee, New York), red (Kentucky, Indiana, Illinois), and yellow (Atlantic, Ventnor, Marvin Gardens) properties. These are all affordable themselves, and putting houses on them won’t break the bank. But if someone lands on them once they are developed, it starts to seriously deplete your opponent’s cash supply. Hit them more than once and you are staring defeat in the eyes.
The same is true for real property (“real” as in actual property, not imaginary property). Buy the most expensive house on the block in the most expensive neighborhood and you may not see the return you want. Buy the cheapest house in the least expensive neighborhood and the same result may occur. Everyone wants to hit the sweet spot—the house that costs the least but had the most value to give back.
Monopoly also teaches about the value of developing property. Sure, it’s nice to own a bunch of random pieces of property around the board, but you don’t see serious cash flow until you start developing your properties with houses and hotels.
Remember the Community Chest and Chance cards? Those are filled with property lessons. We have explained the concept of taxes to our eight-year-old more times than I’m guessing most parents have, simply because she wants to know why she is being assessed $115 per hotel for street repairs. In a city like New Orleans where pot holes can swallow your car, it’s not that hard to convince the little one that street repairs are important, but how street repairs get funded was a dinner time conversation all because of Monopoly.
Sure, Monopoly pushes the capitalist ideology hard (and then pushes it a little more), so the Bernie Sanders’ followers may not enjoy the game quite as much. And, yes, Monopoly doesn’t exactly highlight the nuance of bankruptcy law. You either have money and win or you are bankrupt and lose; there’s no second chance or bankruptcy laws to take advantage of, so maybe it’s not played in Donald Trump’s house either. But it has helped our daughter understand some basic principles of buying and selling property, investing in property, developing property, etc. And it’s provided us with hours of family game time entertainment, not to mention, some pretty stellar, homemade Halloween costumes.