Wednesday, November 29, 2017
(This just in from Troy Rule @ASU:) The Program on Law and Sustainability at ASU Law launched the annual Sustainability Conference of American Legal Educators in May 2015. This innovative conference is a national event hosted each spring for legal academics researching in environmental sustainability-related areas. Roughly 50 professors from law schools throughout North America convene to present their most current research. At the conference, the program also awards the newest winner of the Morrison Prize Contest—an annual contest that awards a $10,000 cash prize to the author(s) of the most influential sustainability-related law review article published in the previous year.
This year's ambitious conference is the program’s signature contribution to the worldwide sustainability movement—a movement whose influence continues to expand throughout legal academia. The conference offers a unique forum for subject matter areas pertaining to environmental sustainability, including but not limited to:
- Climate Change
- Energy Law
- Water Law and Policy
- Environmental Law and Sustainability
- Sustainability Policy and Natural Resources
- Land Use and Zoning Law
- Sustainable Development
- Disaster Law
Now accepting proposals for the 2018 Call for Conference Speakers and entries for the 2018 Morrison Prize Contest – Click here for more information
Sunday, November 19, 2017
Now that Richard Cordray is on his way out as director of the Consumer Financial Protection Bureau (CFPB), banking and financial services lobbyists are gearing up to attempt to unwind some of the bureau’s regulatory work and to put a halt to some of its more aggressive enforcement actions.
And it looks like they’ll likely get their way since President Trump appears to be ready to appoint (at least on an interim basis) the current director of the White House Office of Management and Budget, Mick Mulvaney.
For property professors (particularly the housing and real estate folks), there are some important things we should be on the look out for as things unfold. This is because the CFPB has played a major role in reshaping the way Americans have access to property—or more specifically, how they have access to mortgage credit that leads to homeownership.
One of the most important aspects of the Dodd-Frank Act when it comes to mortgage lending was the creation of a rule that requires firms that originate mortgage loans to make a good faith determination that the borrower has the ability to pay the loan. This may seem obvious, but in the lead-up to the 2008 crisis it was far from a universal practice. In fact, it was not at all uncommon for a mortgage lender to extend credit to a borrower using only the individual’s “stated income” on the loan application, without the lender ever conducting any independent verification or requiring documentation. This was often called “low-doc” or “no-doc” lending because hardly any documentation about the borrower was needed to advance credit. In certain instances the borrower could put down any number they wanted and the lender would nevertheless make the loan, relying solely on the ever-rising value of the real estate subject to the mortgage.
Mortgage lenders would also manufacture pay stubs, employment data, and income information in order to form the basis of mortgage underwriting. And some mortgage lenders—far from being concerned with a borrower’s credit worthiness—would actually encourage their employees to disregard a borrower’s actual ability to repay. One company called Long Beach Mortgage required little documentation, often accepting letters of credit from landlords, fake tax returns, or suspicious-looking pay stubs in lieu of verified statements of income. One former employee said that higher-ups at the company would frequently offer gifts to the loan reviewers in exchange for looking the other way on questionable loan applications. Antoinette Hendryx, a former loan reviewer for Long Beach Mortgage, said “’They’d offer kickbacks of money’” or said things like “’I’ll buy you a bottle of Dom Perignon.’ It was just crazy.”
So Dodd-Frank aimed to force mortgage lenders to study a borrower’s actual ability to repay a loan before extending credit. Dodd-Frank also empowered the CFPB to create a rule that would set forth a safe harbor for how lenders could meet the ability to repay requirement. This safe harbor rule (called the “Qualified Mortgage”) essentially states that if a lender makes a loan that is very “vanilla” (i.e., no predatory or out of the ordinary features, regular payment structure, fully amortized, etc.) then that lender will be deemed to have met the standard. As I’ve written here, lenders have fully embraced the Qualified Mortgage. Indeed, mortgage origination data indicate that something like 99 percent of all new mortgage loans are “Qualified Mortgages.”
But many lenders and industry advocates have argued that the Qualified Mortgage is hurting mortgage lending. And the Trump administration (via a report by the U.S. Treasury Department this past summer) indicated that it desired to loosen the ability to repay rule and change the qualified mortgage. Those goals might very well be met under a Director Mulvaney.
I wrote back in October of last year (here) on this blog that lending for low- to moderate-income borrowers and borrowers of color is indeed down. And total loan originations between 2014 and 2015 definitely took a dip (table with origination numbers for comparison here). But is the Qualified Mortgage and the Ability to Repay the reason for this?
A few months ago in September 2017, Federal Reserve researchers, using Home Mortgage Disclosure Act data, studied the decline in lending to low-income borrowers by major, traditional financial institutions. I thought their findings were interesting and useful in thinking about the causes of credit tightening. Quoting from their paper:
The Decline in FHA Lending
A second trend in the mortgage originations of the largest banks that might help explain their declining [low- and moderate-income (LMI)] share is a coincident decline in their origination of loans insured by the Federal Housing Administration (FHA). FHA insurance protects lenders against losses in the event of borrower default, and so allows borrowers with relatively small down payments or relatively low credit scores to access mortgage credit they might otherwise be denied. FHA loans are disproportionately used by LMI borrowers for these reasons.5
As shown in figure 3, the FHA share of loans originated by the three largest banks fell from 43 percent in 2010 to just 5 percent in 2016. Because FHA loans are much more likely to be originated to LMI borrowers, this decline is likely related to these banks' decrease in LMI lending. The share of FHA lending also declined for other banks and for nonbank lenders, though not as sharply as for the largest three banks.
The disproportionately large decline in both LMI and FHA lending by the largest three banks raises two questions. First, why did these largest three bank lenders reduce their FHA originations by more than other lenders during this period? Second, how much of the "excess" decline in lending to LMI borrowers by the three largest banks can be accounted for by the larger decline in FHA mortgages?
Reasons for the Decline in FHA Lending
One possible reason for the disproportionate decline in FHA lending by the largest banks could be related to recent litigation brought against them by the Department of Justice under the False Claims Act. The Department of Justice has argued that lenders who improperly certify mortgages as eligible for FHA insurance may be held liable for making false claims to the United States government, subjecting them to treble damages. Since 2011, the Department of Justice has sued a number of large mortgage lenders for violations of the False Claims Act, including each of the largest three bank lenders. The costs of these lawsuits have been large: for example, Wells Fargo reached a $1.2 billion settlement with the Department of Justice in 2016. While other lenders have also been targeted in these lawsuits, large banks have been particularly explicit about the effect of these lawsuits on their FHA lending. For example, in an April 2015 letter to shareholders, JP Morgan Chase CEO Jamie Dimon explained that the company had reduced its FHA lending in part because of the risk "from the penalties that the government charges if you make a mistake."
Several other factors have also contributed to the overall decrease in FHA lending since 2010. First, rising FHA insurance premiums over this period likely shifted demand away from the FHA. Second, lenders have faced significant uncertainty around the FHA's "indemnification" policy, which defines circumstances under which FHA insurance is voided because the loans are judged to be improperly underwritten. Third, the cost of servicing a delinquent FHA mortgage rose significantly during this period. While each of these factors likely raises the expected costs associated with FHA-guaranteed mortgages for all lenders, they could have induced larger reactions from the large bank lenders, whose overall profits are less dependent on their mortgage lending business.
So I think we need more data and analysis in order to better assess the effect of the Qualified Mortgage and the Ability to Repay on mortgage lending and the availability of credit. In another Fed study that was done in 2014 (which was the year that the new CFPB rules went into affect—although many lenders already started to comply the year before just to get ahead of the game), the data indicated that the rules caused no material difference in mortgage lending. Will the new CFPB director go through a probing process before making substantial changes to these important underwriting rules? And if they change, what will mortgage underwriting look like in the future? We’ll have to wait and see.
(Photo Credit Above: Athens Area Habitat for Humanity)
Thursday, November 2, 2017
The Journal of Affordable Housing & Community Development Law (the Journal) is the nation’s only law journal dedicated to affordable housing and community development law. The Journal educates readers and provides a forum for discussion and resolution of problems in these fields by publishing articles from distinguished law professors, policy advocates and practitioners.
For its next issue the Journal invites articles and essays on the theme Managing the Tensions and Conflicts Among Affordable Housing, Community Development and Fair Housing Law
April 2018 will mark the 50th anniversary of the passage of Title VIII of the 1968 Civil Rights Act, the federal Fair Housing Act. Doubtless, there will be numerous publications celebrating it and evaluating its effectiveness. This issue of the Journal will focus on another equally significant dimension worthy of reflection. Title VIII was enacted to address both governmental and private actions that discriminate or that promote segregation either intentionally or by neutral rules. Historians have documented a long history of governmental discrimination that promoted racial segregation by excluding people of color and others from communities of prosperity and opportunity as well as intentional practices of neglect and disinvestment that contained people of color and others protected by civil rights laws.
Given this legacy, there are numerous important and recurring tensions between fair housing law, the development of affordable housing, and community development that arise out of efforts to pursue Title VIII’s worthy objectives. Some examples of fair housing rules and policies that have caused complications include: (1) siting practices that are affected by the duty to affirmatively further fair housing and site and neighborhood standards; (2) the right of persons with disabilities to live in integrated, community-based settings where they can also receive long-term supportive services that address their individual needs; (3) the obligation to carry out affirmative fair housing marketing while also implementing admission and selection practices to create specialized housing for families with needs that often impair the ability to gain access to housing; (4) the responsibility to effectuate architectural access in a regulatory environment with complex building codes implemented by regulators and builders in inconsistent ways; and, (5) the importance of promoting equal access to housing by immigrants through language assistance policies in a political atmosphere where immigration itself is a contentious topic.
Often these tensions are expressed as an either-or proposition. Developers, sponsors, government officials and others are concerned about regulatory imperatives that are confusing or contradictory, interfere with their mission, cause inefficiencies, encourage unnecessary legal fees and litigation, create distortions in the developments and programs that lead to limits on the number of affordable units, or that undermine projects altogether. Fair housing advocates argue that some affordable development activities perpetuate or exacerbate conditions of segregation and containment affecting people of color and people with disabilities, and that in the absence of regulation and vigorous enforcement, bias, prejudice and exclusion will continue to plague the nation’s housing and finance systems. Some community advocates question fair housing goals that disfavor investment in low-income communities and communities of color, as well as when application of Title VIII appears to impede efforts to resist gentrification and community displacement. Advocates for special needs populations do not all agree whether integration into the larger community or formation of special communities are more advantageous.
The Journal seeks articles that will explain and analyze these types of issues and suggest strategies (including legal and policy recommendations) to deal with them. The focus is not on those trying to evade fair housing requirements but on the complexities of complying with legal rules by people of good will who support fair housing goals. Articles can either focus on a particular rule or policy (e.g. site and neighborhood standards) or address a broader theme (e.g. how the tensions affect the location of housing or how they exemplify issues of identity and difference).
The Journal welcomes essays (typically 2,500–6,200 words) or articles (typically 7,000-10,000 words) on the theme.
Interested authors should send an abstract describing their proposals to the Journal’s Editor-in-Chief, Tim Iglesias, at firstname.lastname@example.org by November 20, 2017. Submissions of final articles and essays are due by January 3, 2018. The Journal also accepts submissions on a rolling basis. Please do not hesitate to contact the Editor with any questions.
Thursday, October 26, 2017
We're thrilled to have Tim Mulvaney (Texas A&M) step in to guest blog on a potential SCOTUS takings case:
On October 27, 2017, the Supreme Court will consider for the third time the petition for certiorari in 616 Croft Ave. v. City of West Hollywood, a case that raises the open question of whether the probing scrutiny applicable in takings cases involving individualized administrative exactions also should be applied in cases involving generalized legislative exactions. While the fact that 616 Croft has been relisted multiple times is no guarantee that the Court will agree to hear the case, history suggests that re-listing for a future conference significantly increases the chances that it will do so.
616 Croft centers on a California municipality’s inclusionary housing ordinance, a commonly adopted measure seeking to increase the availability of affordable housing. The ordinance requires that developers sell or rent a portion of newly constructed units at below-market rates or, alternatively, to pay a formula-derived “in lieu” fee designated to funding the construction of the equivalent number of units elsewhere in the city. Here, a development company sought permission to build an 11-unit condominium complex. When the city applied the inclusionary housing ordinance, the development company paid the fee “under protest” and unsuccessfully challenged the ordinance on its face in state court as an unconstitutional taking of property in accord with the Supreme Court’s “exaction takings” decisions of Nollan v. California Coastal Commission, Dolan v. City of Tigard, and Koontz v. St. John’s.
Seemingly out of concern that administrative exactions present the possibility for extortionate, targeted conduct by government officials with authority to deny permitting applications, the Court asserted in Nollan and Dolan more than two decades ago that the government shoulders the burden of proving that at least those administrative exactions requiring permanent public occupation of the permitee’s land—in these cases, a public walking and bicycling easement, respectively—bear an “essential nexus” to and are in “rough proportionality” with the proposed development’s impacts to avoid having to pay takings compensation. These decisions have been described as imposing a form of heightened scrutiny in the sense that their tests shift the burden of proof away from the claimant and toward the defendant government entity, authorize review of the relationship between an exaction’s design and the public goals in imposing that exaction (a traditional due process question, only more probing), and allow for takings liability findings in instances where the economic impact of the exaction is quite modest. In 2011, Koontz extended application of Nollan and Dolan to some still-unspecified class of individualized mitigation fees.
In its petition for certiorari in 616 Croft, the development company argues that the takings scrutiny applied to the exactions imposed via case-by-case administration in Nolan, Dolan, and Koontz is also applicable in situations where the government imposes exactions via broadly applicable legislative formulas or schemes. Such a holding by the Court very well could limit not only the adoption of inclusionary housing ordinances but also myriad approaches to wetland mitigation, infrastructure support, and the like.
The Petitioners in 616 Croft are represented by the Pacific Legal Foundation, a prominent libertarian public interest law firm familiar to takings mavens for representing property owners in Nollan, Koontz, Palazzolo v. Rhode Island, and, most recently, Murr v. Wisconsin, among many other takings cases before the Supreme Court. Amicus briefs in support of the petition have been filed by the Cato Institute, the Citizens’ Alliance for Property Rights Legal Fund, and a collection of land use and economics scholars headlined by renowned Yale law professor Bob Ellickson.
Last year, I published this paper that sets out the many competing arguments surrounding the appropriate measure of takings scrutiny in cases involving legislative exactions. In the piece, I suggested that proponents of progressive conceptions of property have a number of strong first-order reasons to support immunizing legislative exactions from Nollan/Dolan scrutiny, but that several secondary effects of this approach make the issue a more challenging one for progressive property scholars and advocates than it initially might appear.
Stay tuned to the Property Prof Blog for an update on the Supreme Court’s upcoming conference on 616 Croft!
Friday, October 20, 2017
Christine Klein (Florida) has posted Owning Groundwater: The Example of Mississippi v. Tennessee (35 Virginia Envtl. L.J. 474 (2017)) on SSRN. Here's the abstract:
In Mississippi v. Tennessee, a case currently on the U.S. Supreme Court’s docket, Mississippi claims that it owns all groundwater stored underneath its borders that does not cross into Tennessee under “natural predevelopment” conditions—those existing before the advent of modern well technology. Consequently, Mississippi seeks more than $600 million from Tennessee for pumping of wells that tap into a geologic formation that underlies both states. This remarkable claim departs from the U.S. Supreme Court doctrine of “equitable apportionment” under which the Court has resolved interstate surface water conflicts, determining relative rights of use rather than awarding monetary damages based on water ownership. It also departs from the almost uniformly established proposition that the states do not “own” the water within their borders in a physical sense, but instead are authorized to manage that water for the “use” of their citizens. This Article situates the conflict at the crossroads of two broader issues. First, under a phenomenon this Article dubs “groundwater exceptionalism,” the law often treats groundwater differently than surface water, partly as a relic of slow-developing hydrologic knowledge. Second, the dispute goes to the very heart of property law and the meaning of ownership, as distinguished from rights of use. The lower courts have consistently framed this decade-long dispute as a matter of competing uses, but have also interjected the rhetoric of ownership into their opinions. This conflation of use and ownership has the potential to affect the outcome of this case, as well as distort future litigation involving equitable apportionment, regulatory takings, state water rights law, and other legal doctrines.
Thursday, October 12, 2017
If anyone is in the Dallas/Forth Worth area, Texas A&M has a fantastic line-up of property professors coming to town this academic year. Check them out below!:
If you have a property professor coming to speak at your school, contact me and we'll work to do a feature blog post on them and their talk.
(Hat Tip to our own Tim Mulvaney)
Thursday, October 5, 2017
From our good friend and fellow property law prof Tim Mulvaney (Texas A&M), see the following:
Dean, Texas A&M University School of Law Fort Worth, Texas
October 3, 2017
Texas A&M University invites nominations and applications for the position of Dean of the Texas A&M University School of Law. The desired appointment date is July 1, 2018.
Texas A&M University is a tier‐one research institution and American Association of Universities member. As the sixth largest university in the United States, Texas A&M University is a public land‐ grant, sea‐grant, and space‐grant university dedicated to global impact through scholarship, teaching, and service. The members of its 440,000 strong worldwide Aggie network are dedicated to the University and committed to its core values of excellence, integrity, leadership, loyalty, respect, and selfless service.
Located in Fort Worth, the Texas A&M University School of Law is one of 16 colleges and schools that foster innovative and cross‐disciplinary collaboration across more than 140 university institutes and centers and two branch campuses, located in Galveston, Texas and Doha, Qatar. Since joining the A&M family in 2013, the law school has sustained a remarkable upward trajectory by increasing its entering class credentials and financial aid budgets; shrinking the class size; hiring new faculty members, including nationally recognized scholars; and enhancing the student experience. Consistent with its mission, Texas A&M University School of Law integrates cutting edge and multidisciplinary scholarship with first‐rate teaching to provide students with the professional skills and knowledge necessary for tomorrow’s lawyers. Texas A&M University School of Law faculty members and students play a vital role by providing their legal expertise to collaborations with other Texas A&M professionals to develop new understandings through research and creativity.
The next Dean of Texas A&M University School of Law should provide dynamic, innovative, and entrepreneurial leadership and vision to shape the school’s continued transformation into a model for future legal education. Candidates should have a Juris Doctorate and a scholarly record appropriate for appointment at the rank of tenured professor. Other candidates who hold distinguished records of professional and intellectual leadership or outstanding service to the community will also be considered. The successful candidate should be:
- committed to the school’s scholarly mission;
- a strong law school advocate who seeks cross‐unit collaborations with other university schools and colleges;
- a successful fundraiser who can obtain support for various programs and projects, including the Law School Building Project recently approved by The Texas A&M University System Board of Regents, as well as endowed faculty chairs, professorships, and student scholarships;
- an effective administrator with team‐building skills and a collaborative management style appropriate to a complex organization; and
- dedicated to community engagement and public service and experienced at external relations, including outreach to law firms, corporations, and foundations as well as government agencies, non‐profit organizations and policy‐
The Texas A&M University School of Law is located in the heart of downtown Fort Worth, a city known for a unique confluence of Texas history and renowned arts. Fort Worth enjoys a diverse business community, including energy, defense, international trade, and logistics as well as financial services.
Just outside of downtown, Fort Worth has many neighborhoods with recognized schools a short distance from the law school. Fort Worth is known nationally as the home to the Bass Performance Hall, the Kimbell Art Museum, and the Amon Carter Museum of American Art, among others. The Trinity River flows through the city. It features over 40 miles of trails, providing access to the Fort Worth Botanic Garden, the Japanese Garden, the Fort Worth Zoo, and the historic Stockyards. The Fort Worth/Dallas metropolitan area has a total population of more than seven million. It offers a vibrant legal community that supports extensive federal and state court systems, including the Patent and Trademark Office, the Federal Reserve Bank, the National Labor Relations Board, the Environmental Protection Agency, and the Securities and Exchange Commission. Fort Worth/Dallas has one of the world’s largest airports. As one of the most desirable places to live and work in the United States, the metroplex has attracted many multinational corporations.
Applications should include a curriculum vitae, a cover letter including a statement of interest, and a list of three references. Only nominations and applications received by November 17, 2017 are assured consideration. Nominations and applications received after November 17, 2017 may or may not be considered.
Applications and nominations should be submitted electronically in confidence to email@example.com. Applicant information will be kept confidential to the maximum extent allowable by law. Additional information and timeline can be found at http://lawsearch.tamu.edu.
Texas A&M University provides equal opportunity to all employees, students, applicants for employment or admission, and the public, regardless of race, color, sex, religion, national origin, age, disability, genetic information, veteran status, sexual orientation, or gender identity.
Sunday, September 24, 2017
On May 25-26, 2018, the Cambridge University Centre for Property Law will be hosting a conference on regulatory issues in property law. The conference will bring together property law scholars and practitioners from around the world to discuss the most important contemporary issues facing the law of real property. Designed to bring together practitioners and academics, the conference seeks to promote purposeful discussion and build lasting relationships.
A series of panels on May 25 will be followed by a lecture series on May 26. Panel topics include: the role of property as a human and constitutional right; the relationship between property law and environmental law; and the role of real property law research at Universities and the Law Commission. The Saturday lecture series will see distinguished academics and senior members from practice and the judiciary discuss contemporary issues in real property law.
Confirmed speakers and panellists include Nicholas Hopkins (Law Commission), Martin Dixon (Cambridge), Gregory Alexander (Cornell), Susan Bright (Oxford), Tom Allen (Durham), David Elvin QC (Landmark Chambers), Emma Lees (Cambridge), Sjef van Erp (Maastricht), John Lovett (Loyola), Timothy Mulvaney (Texas A&M), Frankie McCarthy (Glasgow), Richard Moules (Landmark Chambers), and Colin Reid (Dundee).
Tickets include both days of the conference with breakfast, lunch, and coffee; a three-course meal in the Old Hall of Queens’ College, Cambridge on Friday 25th May; and a closing drinks reception on Saturday 26th May. Places are limited and cost £225. To book your place, please visit:
Please direct all further enquiries to the conference convenor, Douglas Maxwell, Emmanuel College, St. Andrew's Street, Cambridge, CB2 3AP, dskm2 at cam.ac.uk.
Tuesday, September 19, 2017
Aspiring deans: in light of the rise of our near and dear property prof friends Ben Barros (Toledo) and Hari Osofsky (Penn State) to decanal glory, see the following announcement from Washburn (via Andrea Boyack):
POSITION ANNOUNCEMENT – DEAN, SCHOOL OF LAW
Washburn University invites applications and nominations for the position of Dean of the Washburn University School of Law. The Law School is recognized for its outstanding teaching and faculty scholarship and its commitment to public service. It has a highly favorable student/faculty ratio, with an excellent student body drawn from a national pool.
One of only two law schools in the state of Kansas, Washburn University School of Law is located in Topeka, the state capital. It was established in 1903 and has built a long tradition and legacy of providing an outstanding legal education. Washburn Law offers a broad-based curriculum in national and international law to students enrolled in the J.D., LL.M., and M.S.L. programs. It features six centers for excellence, nine certificate programs, and four dual degree programs. The thirty-two full-time faculty members, along with a strong cohort of adjunct professors, teach and conduct scholarship across a wide array of legal specializations. The Law School enjoys a dedicated staff and strong support from the community.
For more than a century, Washburn Law has demonstrated its commitment to academic excellence, innovation, and diversity. Students choose from nearly 150 courses, including a variety of seminars and clinical offerings. From the first year through graduation, the comprehensive curriculum and innovative programs prepare students for success in the legal profession. For over forty years, Washburn’s Law Clinic has functioned as an in-house general practice law firm, providing students the opportunity to represent actual clients in eight practice areas.
Washburn University School of Law has excelled in the categories most important to our students and alumni: a high-quality curriculum; an exceptional faculty; outstanding library resources; favorable graduation statistics, bar passage rates, and employment outcomes; and affordability. Among other accolades, Washburn University School of Law is ranked #2 in the nation for Government Law and is one of twenty law schools recognized by National Jurist as "Top Law Schools for Government Jobs." Washburn Law is also among the top seventeen law schools in the country for Business and Corporate Law programs. Washburn Law’s Trial Advocacy program is ranked in the top sixteen programs this year.
Washburn Law’s six signature programs – the Center for Law and Government, the Center for Excellence in Advocacy, the Business and Transactional Law Center, the Children and Family Law Center, the Oil and Gas Law Center, and the International and Comparative Law Center – establish an extensive learning network for law students and experienced professionals.
Our Legal Analysis, Research, and Writing program is consistently recognized as a top program by U.S. News & World Report, ranked 15th in the nation in the current edition. We are one of only a few law schools in the country with full-time, tenured and tenure-track legal writing professors who are involved in service and scholarship in the national legal writing community.
WashLaw, initiated in 1991 by the Washburn Law Library, is a legal research portal that provides users with links to significant sites of law-related materials on the Internet. It is one of the premier legal internet research services available to a worldwide audience of practicing and academic legal experts. WashLaw also hosts a large number of law-related discussion groups.
Washburn University seeks an exceptional candidate who has the vision, strategic acumen, entrepreneurial spirit, character, and presence to enhance the school’s existing strengths while moving the School of Law forward to a higher level of distinction. The Dean serves as the academic, fiscal, and administrative leader for the School of Law.
Friday, September 15, 2017
On Thursday, September 28, the John Marshall Law School Center for Real Estate Law will be hosting a a conference on the recent U.S. Supreme Court takings case, Murr v. Wisconsin. The panel will include practitioners and members of industry, including John Groen (Pacific Legal Foundation), Steven Eagle (George Mason), John Echeverria (Vermont), Michael Allan Wolf (Florida), Janet M. Johnson (Schiff Hardin), David S. Silverman (Ancel Glink), and Steven M. Elrod (Holland & Knight). The event runs from 8:30am to 1:00pm and is free of charge. You can register for what sounds like a great day on takings jurisprudence online by going here.
Thursday, September 14, 2017
Tuesday, September 12, 2017
Gerald Korngold (New York Law School) has posted A New Framework for Achieving Free Expression and Speech in the Evolving and Reconceptualized Mall of the Twenty-First Century (Case Western Reserve Law Review) on SSRN. Here's the abstract:
Much has been written lately about the “death” of malls and large-scale shopping centers. The data show, however, that the great numbers of these malls and centers are not going extinct but rather are undergoing an evolution from the fortress-type, retail-focused mall of the 1970s to a twenty-first century model better attuned to current tastes of citizens and consumers. There are indeed significant challenges, including purchasing trends, troubled brick and mortar retail, increased online sales, and living choices. But despite some shock-value headlines, the data show that the number of malls and large centers continue to increase. Moreover, owners are reconceptualizing the mall and large centers to better position them for economic challenges. New manifestations include the mall as an “experience” beyond retail, lifestyle centers, and mixed-use, town center types of shopping centers. Coupled with some indicators that the move to cities has reversed and the unknown future of internet commerce, it appears that while the mall is evolving and must do so, quality properties are far from dead.
This article traces the rise of, current challenges to, and responses for the mall and large-scale shopping centers. It argues that these entities have been a central locus for community interactions and that their twenty-first century iterations may make them even more important. Malls and large-scale shopping centers have become central points at the expense of downtown shopping districts, where true public space was available for free speech and expression necessary for democratic government. This article shows that in drawing people away from the traditional downtowns, malls have consumed this key civic capital without compensating the municipality. In essence, this is no different than a developer utilizing community infrastructure such as local roads without providing compensation and creating externalities for the town to pay for. Thus, malls and large centers have an obligation to provide space for free public expression and speech in their developments.
First Amendment arguments for such space have been soundly rejected in the past. This article suggests new approaches to establish free expression in spaces in malls to address current needs and the likely increased civic centrality of some of “new” malls and shopping centers over this century. It suggests exactions, incentive zoning, and community benefits agreements as strong alternatives, and examines the advantages and disadvantages of each to the public, government, and mall developers/owners. Some of these solutions are mandatory — imposed by government on the developer — while others are more consensual. In addition to developing the legal methods for establishing civic free space, the article makes an additional contribution. By establishing the legal rules of the game, municipalities and developers will be able to negotiate consensual agreements that provide for public expression space but also protect the owner’s business goals; such agreements that align the parties’ interests may ultimately be the best solution.
Saturday, September 9, 2017
This just in from Lee Ann Fennell (Chicago): Cambridge University Press has just published Evidence and Innovation in Housing Law and Policy (Lee Anne Fennell & Benjamin J. Keys, eds. 2017). All chapters are downloadable in PDF as well as viewable in HTML through the Open Access version.
The impressive list of contributors include: William A. Fischel, David Schleicher, Richard A. Epstein, Ingrid Gould Ellen, Brian J. McCabe, Lior Jacob Strahilevitz, Georgette Chapman Phillips, Matthew Desmond, Stephanie M. Stern, Christopher Mayer, Ian Ayres, Gary Klein, Jeffrey West, Atif Mian, Amir Sufi, Patricia A. McCoy, Susan Wachter, Raphael W. Bostic, and Anthony W. Orlando.
Friday, September 8, 2017
To finish up the day, Professor Lionel D. Smith of the McGill University Faculty of Law gave the Tamisiea Endowed Lecture in Wealth Transfer Law. His presentation, titled Give the People What They Want? The Onshoring of the Offshore, was about challenging the growing flexibility of trust law in on- and off-shore jurisdictions. Smith explained how offshore jurisdictions have tried to create flexible trust laws to meet client demands related to freedom of choice. Indeed, some of these new institutions have even been adopted in “onshore jurisdictions.” Smith noted that although freedom of choice is important, private law plays an important policy-balancing role in society.
Professor Smith stated that the offshore trust phenomena is a relatively new concept whereby legislatures enact or modify trust law in order to entice high net-worth individuals to migrate their wealth to these locales. For example, the Cayman Islands created the STAR trust and the British Virgin Islands created the Vista Trust—both aimed at drawing in the trust industry.
Smith explained that the there is an interaction between onshore and offshore trust law - “onshoring of offshoring.” One way this occurs is through how onshore judges interpret these offshore trust laws (like New Zealand judges hearing Cook Island trust disputes). For instance, he described a UK court with jurisdiction over Cayman Island disputes upholding an offshore asset-protection trust but making the debtor’s power of revocation a seizable asset (which the creditor could then exercise itself to get at the trust assets).
Smith explained that another way interaction happens deals with conflicts of laws principles, such as when a common law trust dispute would end up being litigated in a civil law court where trusts are not recognized. Smith also explained, by way of example, that with a star trust the beneficiaries have no right of enforcement—rather enforcement is left entirely to the trustee. Such a state of affairs does not (and cannot) exist under UK trust law.
The final way offshore innovations come into contact with the onshore is more direct—when onshore jurisdictions change their laws to reflect offshore conventions. An example of this is the abolition of the rule against perpetuities and the way several US states have created asset-protection trusts of their own.
Smith concluded by asking whether we should we concerned about onshore jurisdictions enacting these client-centered, off-shore trust concepts. “Should we give the people what they want?” He argues that, we cannot design the legal system around clients – there is more at stake. For instance, with a non-charitable purpose trust (although perhaps sometimes motivated by settlors who truly seek to do no harm) one creates a fund of property that is essentially unowned. Thus, the property is beyond a creditor’s reach yet functionally still under the control of the settlor. Here, as with the Star Trust under Cayman law, the trust obligations can only be enforced by the enforcer (the trustee), which the trustee can choose not to do.
In closing, Smith noted that although these statutory innovations were designed as a competition tool between offshore jurisdictions—onshore jurisdictions are now doing the same thing. He stated that in a race to the bottom, you give up a great deal. For instance, the Bahamas recently passed an executive entity trust whereby a legal person with no shareholders and no assets is created but which cannot incur liability for its actions—all done to create a customized creature to serve the purposes of a client. Smith finished by noting that by giving “the people” (the trust industry) what they want, we—in the longer term—give up so much more.
Greetings from the “Wealth Transfer Law in Comparative and International Perspective” symposium, hosted by the Iowa Law Review and the American College of Trust and Estate Counsel Foundation today at the University of Iowa College of Law.
The first panel this morning featured a fascinating discussion of successions issues across borders. For instance, Naomi Cahn (George Washington) spoke about the rule that gifts made in wills to spouses are deemed to be revoked upon divorce. She critiques this approach, particularly the fact that it conclusively presumes this result would have been in line with the testator’s will. David Horton (UC-Davis) continued with a discussion of what he calls “partial harmless error” in will-making. He shows how the concept has arisen in American courts and uses an empirical study to explore the costs and benefits of adhering to drafting formalities.
Gary Spitko (Santa Clara) discussed lessons that can be learned in the US regarding the succession rights of unmarried, committed partners in light of Scotland’s law reform in this area. Jeffrey Schoenblum (Vanderbilt) enlightened the group on recent problems with cross-border estate problems in martial property, specifically discussing a 2010 case whereby all of the stock in a US corporate was included in the decedent spouse’s estate because, despite the decedent’s domicile being in Belgium and therefore under a community property regime, the court held that the “martial domicile” was in the UK where the community property regime is not applicable. Lastly, Mariusz Zalucki (Krakow & Rzeszow Universities) gave an overview of attempts in Europe to bring some uniformity to the law of inheritance. Excellent moderating was provided by Shelton Kurtz (Iowa).
Stay tuned in for more updates as the day continues!
As we say in the ABA’s Real Property, Trust, and Estate Law Section, for those who work in the world of “death” (rather than “dirt”), I wanted to share a piece by David Horton and Andrea Cann Chandrasekher (both of UC-Davis) on a phenomena that they identified in 2016 known as Probate Lending (Yale Law Journal). We are all familiar with the buying of interests in lawsuits, but what has been less known is the practice of lending funds to heirs in anticipation of a pay-off from the heirs’ interest in an estate. As Horton and Chandrasekher point out in their empirical work, probate lending is both quite lucrative and predatory.
Building upon this work, David Horton recently expanded the research and posted a new article titled Borrowing in the Shadow of Death: Another Look at Probate Lending (William & Mary Law Review) to SSRN. For those interested in property and consumer finance, these two articles are incredibly important. Here’s the abstract:
“Fringe” lending has long been controversial. Three decades ago, demand for sub-prime credit soared, and businesses started to offer high-interest rate cash advances, such as tax refund anticipation loans, payday loans, and pension loans. These products have sparked intense debate and are subject to a maze of rules. However, in Probate Lending, 126 YALE L.J. 102 (2016), a co-author and I examined a form of fringe lending that has gone largely unnoticed: firms that pay lump sums in return for an heir or beneficiary’s interest in a pending decedent’s estate. Capitalizing on a California law that requires companies to file these contracts in probate court, we analyzed seventy-seven loans that stemmed from deaths in 2007. In this companion Article, I report the results of a study of two additional twenty-two months of probate records. My research provides hard evidence about the multi-million dollar inheritance-buying industry, including the prevalence of loans, characteristics of borrowers, how often lenders are repaid, and annual interest rates. I then use this data to compare probate lending to other species of fringe lending and to outline how courts and lawmakers should regulate the practice.
Thursday, September 7, 2017
Municipalities from the Central Valley in California to Upstate New York bear the legacy of reckless mortgage lending. Foreclosed homes and toxic titles have caused blight and cost communities billions of dollars. Many cities tried to halt the risky loans by calling on state and federal legislators and regulators to intervene. Some even passed ordinances aimed at curtailing the high-cost loans that were destroying their neighborhoods. Their pleas were dismissed and their ordinances overturned. Ultimately, the subprime crisis played a central role in the great financial crisis when millions of people lost their jobs and, as a consequence, lost their homes too. As a result, municipalities have born the burden of empty, dilapidated homes that pepper once vibrant neighborhoods. A handful of cities have sued financial institutions, attempting to recover their losses. The lawsuits have been complex and expensive, and limits on municipal standing have dramatically restricted the relief cities can recover.
At the same time that cities were trying to stop abusive loans, most states and the federal government did nothing to curtail the making of unaffordable loans or the growing number of foreclosures. In the worst cases, governmental entities took steps that fueled risky lending. Later, when the subprime crisis morphed into the foreclosure crisis, state and federal governments failed to adequately assist municipalities.
I analyze the legal and regulatory problems municipalities encountered when they attempted to restrict high-risk mortgage loans and when they sought to recover for foreclosure blight. I argue that these problems are the result of a broader, more systemic issue: municipalities are severely limited in their ability to act against commercial interests that cause harm to their communities. In the case of risky mortgage lending, I contend that the sensible policy is to expand localities’ power to protect against actions by financial institutions that threaten or impose costs on communities and I introduce models for local regulation of home mortgage lending.
Monday, September 4, 2017
John Infranca (Suffolk) has posted (Communal) Life, (Religious) Liberty, and Property (Michigan State Law Review) on SSRN. Here's the abstract:
Property rights and religious liberty seem to share little in common. Yet surprisingly similar claims have long been made on their behalves, including bold assertions that each of these two rights uniquely limits the power of the state and serves as the foundation for other rights. This Article reframes the conception of property rights and religious liberty as foundational by foregrounding communitarian aspects of each right. Property and religious freedom are a foundation for other rights, but in a different manner than traditional accounts suggest. It is not the individual exercise of these rights that provides a foundation for other rights, but rather the complementary roles these rights play in the formation of normative communities that, in turn, serve as counterweights to the state.
This Article makes three distinct contributions to existing legal literature. First, it reveals the significant similarities in historical and theoretical conceptions of the foundational status of these two rights. Second, it integrates the developing scholarly literature on the communal and institutional nature of these two rights. Third, it builds upon this literature to contend that the right to property and religious freedom can indeed provide important foundations for rights more generally, but only if we sufficiently protect and nurture, through law, the communities and institutions upon which these rights depend. The Article concludes by suggesting new approaches to assessing a diverse set of contemporary legal disputes: religious communities seeking to locate in the face of local government opposition, Native American communities challenging government actions on sacred lands, and Sanctuary churches opposing immigration enforcement by sheltering individuals on their property.
Sunday, September 3, 2017
Cities across the country are adopting mandatory inclusionary zoning. Yet, consensus about the appropriate constitutional standard to measure the propriety of mandatory inclusionary zoning has not been fully reached. Under one doctrinal lens, inclusionary zoning is a valid land use regulation adopted to ensure a proper balance of housing within the jurisdiction. Under another doctrinal lens, challengers seek to characterize inclusionary zoning as an exaction, a discretionary condition subject to a heightened standard of review addressing the specific negative impact caused by an individual project on the supply of affordable housing in a jurisdiction.
Drawing from the experience of Baltimore, Maryland’s inclusionary zoning ordinance, this Article considers the impact that the uncertainty in the law may have had on the type of inclusionary zoning ordinance adopted by the city. This Article argues that the conversation about inclusionary zoning, land use regulation, and exactions has been formulated in the context of imagery about development that leaves places like Baltimore out. The imagery in these narratives is of an individual landowner powerless in the face of government overreach. The reality is different in those places where land developers are not powerless and instead are often politically influential repeat players. Thus, the real problem presented may be not how to craft doctrine to prevent cities from asking too much of developers, but instead to craft doctrine that ensures cities do not give away too much.
Friday, September 1, 2017
David Gray Carlson (Cardozo) has posted The Federal Law of Property: The Case of Inheritance Disclaimers and Tenancy by the Entireties (Washington & Lee Law Review) on SSRN. Here's the abstract:
The Supreme Court has issued two disturbing tax opinions which disrupt the notion that “property” (when used in federal statutes) refers to state-law notions. In Drye v. United States, the Supreme Court pierced the Arkansas fiction that inheritance disclaimers are retrospective in effect. Thus the Internal Revenue could claim that a tax lien attached to the pre-disclaimer inheritance. Disclaimer could not defeat this lien. In United States v. Craft, the Supreme Court pierced the Michigan fiction that a tenancy by the entireties does not belong to the individual spouses but, rather, the a corporate “marital” entity that is a separate legal person from the individual spouses. Thus, a tax lien encumbered an individual’s share of the entireties even though Michigan would aver that the individual spouse was not a property owner.
This article challenges the notion that tax cases are “special.” Rather, the claim is that these disturbing holdings apply in other federal contexts, especially in bankruptcy cases. Thus, the article claims that there is a federal law of property which is obliterative of state-law notions. The article therefore proclaims that, in bankruptcy, Butner v. United States (admonishing that state law provides the definition of property) is dead.