PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

Friday, February 12, 2016

Seto on A Forced Labor Theory of Property and Taxation

SetoTheodore Seto (Loyola - LA) has posted A Forced Labor Theory of Property and Taxation (Book Chapter)on SSRN.  Here's the abstract:

One of the great accomplishments of civilization is to force its members to work and save more than they otherwise might. It does this, first and foremost, through property law, which restricts the access of ordinary members to the necessities of life unless they work. In exchange, civilization facilitates the accumulation of social capital, making work more productive and life ultimately more pleasant. Property deprives humans of their natural liberty to hunt and gather. Taxation permits civilization to make payment for this deprivation and justify the resulting forced labor. This is civilization’s grand bargain.

The foregoing theory, if true, has at least two important implications.

First, in Anarchy, State, and Utopia, Robert Nozick famously asserts that “[s]eizing the results of someone’s labor [e.g., taxing them] is equivalent to seizing hours from him and directing him to carry on various activities.” This, he claims, is illegitimate. He intends, of course, to apply this claim only to explicit taxation. But to the extent my theory is true, he must perforce assert that the grand bargain upon which civilization is based is itself illegitimate. I assert, to the contrary, that the uneven distribution of property rights without the creation of social capital is theft, and that taxation, explicit or implicit, facilitates the creation of such capital.

Second, optimal tax theory is based in part on the assumption that the amount members would work and save in the absence of tax maximizes preference satisfaction and therefore welfare. To the extent tax distorts such choices, the argument goes, it is welfare-reducing. But taking only half of the grand bargain as one’s baseline is intellectually incoherent. It is the essence of that bargain to change mankind’s natural preferences with respect to work and savings. My theory, if true, implies, among other things, that: (1) lump sum taxation is not welfare-maximizing, (2) taking distributive consequences into account in structuring non-tax law is not necessarily welfare-reducing, (3) income from capital should be taxed at the same or higher rates as income from labor and may be so taxed without reducing investment in social capital, and (4) optimal tax theory claims founded on the assumption that taxation is inherently distortive – for example, Harberger’s tax deadweight loss conclusion or Mirrlees’ conclusion that progressive marginal tax rates reduce welfare – require significant qualification.

February 12, 2016 | Permalink | Comments (0)

Thursday, February 11, 2016

Form-Based Zoning Sweeps Through Connecticut

The Connecticut Mirror takes a look at the rise of form-based zoning in the Constitution State. Special kudos to UConn property professor Sara Bronin who spearheaded the two-year revision of Hartford's zoning code:

In the next few years planners across the Northeast will be watching Hartford, to see if the state’s most comprehensive form-based plan helps bring development to the long-struggling capital city. Ms. Bronin believes it should help, by making development more predictable and less expensive. For example, the new code eliminates minimum parking requirements for downtown projects, a major potential cost saver. Now, many if not most developers may choose to build parking, but the hope is that they will also rely on shared parking and mass transit to keep costs down. In addition to its form-based provisions the new Hartford code has — and has been praised by environmental groups for — a plethora of green features. It covers everything from waterway protection and urban agriculture to clean energy and the city’s tree canopy. There are also special zones around college campuses, transit nodes and the Connecticut River to encourage appropriate development in those areas.

February 11, 2016 | Permalink | Comments (0)

Eason on Who Owns the Family Pet

EasonMorgan Eason (Mississippi - Student) has posted A Bone to Pick: Applying a Best Interest of the Family Standard in Pet Custody Disputes on SSRN.  Here's the abstract:

What happens to companion animals when pet owners divorce? The role of pets in the lives of humans has evolved so drastically that most companion animals are now considered a member of the family. Courts have failed to evolve with these societal changes, many continuing to apply a strict property law analysis. To combat these inequitable outcomes, some courts have tried but failed in applying a de facto “best interest of the pet” analysis. This Article explains in detail why the application of a traditional property law analysis as well as the attempted application of a de facto “best interest of the pet” analysis in pet custody disputes leads to inequitable results.

This Article is the first to propose the application of a “best interest of the family” standard in pet custody disputes. On a case-by-case basis, courts must keep the focus on family members in order to achieve the most equitable outcomes in pet custody disputes. In making pet custody determinations using a “best interest of the family” analysis, courts should consider factors such as child custody orders, lifestyle considerations and the ability to care for the companion animal, and the psychological and emotional needs of companion animal owners. In accordance with the evolving view of companion animals, courts should consider and apply a “best interest of the family” standard when determining the custody of companion animals in order to achieve the most equitable results in pet custody disputes.

February 11, 2016 | Permalink | Comments (0)

Lovett on A Comparative Perspective on Revendicating Movables

LovettJohn Lovett (Loyola - New Orleans) has posted Professor Longhair's Legacy: A Comparative Perspective on Revendicating Movables (Book Chapter) on SSRN.  Here's the abstract:

This essay addresses the problem of how an owner of a corporeal movable can recover possession of the movable from another person who detains or possesses it without right. It approaches this age-old problem through the lens of SongByrd, Inc. v. Bearsville Records, Inc., 104 F.3d 773, (5th Cir. 1997) and SongByrd, Inc. v. Estate of Grossman, 206 F.3d 172 (2d Cir. 2000). These two decisions addressed the claims of SongByrd, Inc., the successor in interest of the legendary, New Orleans, rhythm and blues pianist Henry Roeland Byrd, aka Professor Longhair, against the estate of the legendary, rock and roll producer Albert Grossman. SongByrd sought to recover possession of several master tapes made by Byrd and other New Orleans musicians in the early 1970s that later made their way into Grossman’s possession. Without the consent of Byrd or his heirs, Grossman’s estate eventually licensed these master tapes to two record companies. One of these companies eventually released an album that earned Byrd a posthumous Grammy Award.

After providing biographical background on Byrd and Grossman and explaining how the master tapes ended up in Grossman’s possession, the essay examines the conceptual and pragmatic differences between Louisiana’s civil law response to SongByrd’s revendicatory action to recover the tapes and New York’s common law approach that framed the merits of the dispute in terms of when SongByrd’s claims for replevin and conversion began to accrue. In essence, the two SongByrd decisions illustrate the difference between a civil law acquisitive or positive prescription approach that asks whether a would-be adverse possessor has taken sufficient steps to begin to possess as owner and deserves to be awarded with ownership through prescription and a common law approach that focusses on whether the true owner has been inexcusably passive in pursuing claims to recover his property. The essay also addresses the long term impact of the respective decisions on the law of Louisiana and New York and how the controversy has been used by property law scholars in the United States to illustrate a statute of limitations/accrual approach to the claims of owners seeking to recover valuable personal property or movables.

February 11, 2016 | Permalink | Comments (0)

Tuesday, February 9, 2016

Map of the day--Dams removed since 1936

American Rivers provides this cool interactive map of all dams removed in the US since 1936. It does have a few little quirks, including locating an Illinois dam a bit too far west on the Clearwater River in Idaho. But it is cool to see how many dams have been removed. I had forgotten that an old dam was recently removed near my home in Moscow. I ride my bike past the location regularly and watched it happen, but it now looks so natural that the memory of the dam has faded.


February 9, 2016 | Permalink | Comments (0)

Nolon on Enhancing the Urban Environment Through Green Infrastructure

John_NolonJohn Nolon (Pace) has posted Enhancing the Urban Environment Through Green Infrastructure (Environmental Law Reporter) on SSRN.  Here's the abstract:

This Article is adapted from Chapter Seven of John R. Nolon, Protecting the Environment Through Land Use Law: Standing Ground, published by ELI Press. The book describes how localities are responding to new challenges, including the imperative that they adapt to and help mitigate climate change and create sustainable neighborhoods. This Article follows the steady advance in the use of green infrastructure in recent years, and details its value as a strategy for adapting to climate change, bettering air quality, lowering heat stress, creating greater biodiversity, conserving energy, providing ecological services, sequestering carbon, preserving and expanding habitats, enhancing aesthetics, increasing property values, and improving the livability of neighborhoods.

February 9, 2016 | Permalink | Comments (0)

Henning & Freyermuth on the Characterization and Treatment of Tenant Security Deposits

William Henning (Texas A&M) & Wilson Freyermuth (Missouri) have posted Article 9 and the Characterization and Treatment of Tenant Security Deposits (University of Arkansas at Little Rock Law Review) on SSRN.  Here's the abstract:

Each day, thousands of lessees enter into contracts under which they lease either real or personal property. Under the majority of these contracts, the lessee agrees to pay (and does pay) a "security deposit" to the lessor. The lessor typically agrees to refund the deposit at the conclusion of the lease term if the lessee fully performs its obligations under the lease contract. Is Article 9 relevant to this transaction? Has the lessor taken a "security interest" in the lessee's property to secure the lessee's obligations under the lease contract?

In Part I, we highlight two opinions representative of the majority of case decisions that have treated lessee security deposits as a "debt." In Part II, we briefly explore the extent to which Article 9's existing provisions appropriately address tenant security deposits, focusing particularly upon some potentially troubling differences that may follow if a security deposit is not made with property of the debtor (such as cash or a check) but is instead made with a credit card or similar payment mechanism. Part III argues that instead of attempting to modify Article 9 to more aptly govern tenant security deposits, the Uniform Law Commission should incorporate explicit provisions for the characterization and handling of tenant security deposits into the revised URLTA provisions that acknowledge the security deposit as a form of secured transaction, but that address the expectations of residential landlords and tenants more appropriately than the existing provisions of Article 9. Part III concludes with statutory language proposed for inclusion within the revised URLTA.

February 9, 2016 | Permalink | Comments (0)

Monday, February 8, 2016

Laddering Your Way to Possession

2016.02.09 Photo 1

In 2014, Carol Rose (Yale/Arizona) wrote a book chapter that asserts possession, for legal purposes, means acting like an owner. Put another way, possession involves having the appearance to others that you are the legitimate owner of the property. Third party acceptance of possession is crucial, as Rose argues, because without it, possession would be ineffective. Rose writes,

Legality—or at least the appearance of legality—is the chief focal point around which social norms of property can congeal. And social norms make possession possible. However much “possession” is equated with physical control of some resource, physical control alone is ineffective—indeed often impossible­—unless the so-called possessor is supported by the surrounding community. And under normal circumstances, what sways the community is the appearance of legitimacy.

Thus, Rose states the adage “possession is nine-tenths of the law” is really backwards; instead, the law is nine-tenths of possession.

Jurisprudence highlights how social norms impact possession. Grazing sheep on property for three weeks of the year may constitute possession in some jurisdictions, see Cooper v. Carter Oil Co., 316 P.2d 320 (Utah 1957), while grazing sheep twice a year, each time for a few weeks, may not constitute possession in others, see Lemon v. Madden, 340 P.2d 977 (Or. 1959). Erecting a fence usually may be a signal of possession, see Cook v. Eddy, 193 P.3d 705 (Wyo. 2008), but on occasion it may not be, see Rawls v. Parker, 602 So. 2d 1164 (Miss. 1992). Social norms matter in determining what constitutes possession.

Social norms are particularly interesting during a time like Mardi Gras when the basic social norm is “let the good times roll.”

What Mardi Gras demonstrates is that Rose is correct that social norms establish what the community accepts to be legitimate forms of possession. Nowhere is this more evident than in the use of ladders to establish possession of highly sought after parade watching locations.

Ladders are a thing at Mardi Gras, particularly along St. Charles Avenue in the Uptown and Garden District areas. There is an entire industry that builds “Mardi Gras ladders,” which are basically your standard ladder with a seat screwed into the top that small children can sit in. Yes, for those of you scratching you head right now. There is an entire industry out there that builds seats to put on the step of the ladder that reads, “Do not sit or stand on this step,” and parents sit their children on this seat.

Safety issues aside, ladders during Mardi Gras are a form of possession. On the Wednesday before Mardi Gras, people put ladders out on the neutral ground (aka the boulevard or the median) of St. Charles Avenue and leave the ladders there until Fat Tuesday. For six straight days, the ladders act as a signal to other parade goers that the spot where the ladder sits is taken. No one has to be on the ladder or in the seat on top of the ladder or anywhere near the ladder—everyone in the New Orleans area understands that the ladder signifies someone is exclusively possessing that tiny tract of neutral ground space.

2016.02.09 Photo 2

If someone left a ladder out on the neutral ground any other week of the year, the ladder would be removed, be it by the city or a person passing by. But during the Carnival season, everyone respects the ladder. This limited time period every year is, to use Rose’s words, when “the [ladder] possessor is supported by the surrounding community.”

Social norms regarding possession during Mardi Gras are a fascinating case study. For more on this phenomena and how local laws are attempting to legitimize or alter current behavior, read Dave Fagundes’ (Southwestern/University of Houston) latest essay in the Tulane Law Review Online, The Tragedy of the Neutral Ground: Public Property and Social Norms During Mardi Gras.

Since it is almost Mardi Gras day as I am writing this, most social norms say I should turn off my computer for the next twenty-four hours and enjoy a slice of King Cake and an adult beverage. In the meantime, enjoy Carnival Day wherever you are and remember to laissez les bons temps rouler!

February 8, 2016 | Permalink | Comments (0)

Housing, Minority Communities, and Nuisance Law Abuse in NYC

(Photo Credit here)

ProPublica recently came out with a story detailing how NYPD officials are using nuisance law to kick individuals out of their homes, largely based on groundless criminal claims that are ultimately dismissed in court. In at least 74 cases of nuisance eviction that were studied by ProPublica in partnership with The Daily News, residents agreed to warrantless searches of their dwellings (sometimes on an on-going basis) in order to be allowed to return to their homes. More importantly, the vast majority of these nuisance actions are falling on minorities. Over an 18-month study period, 9/10 homes targeted for nuisance abatement were in minority communities. The article notes that ProPublica "identified the race of 215 of the 297 people who were barred from homes in nuisance abatement battles. Only five are white."

This story raises some very interesting legal issues for property law professors in teaching nuisance principles. At the turn of the 20th century, nuisance law began to yield to zoning and land use restrictions, which were viewed as superior methods for regulating competing, adjacent land uses. In fact, in many cases zoning rules can preclude or at least diminish the validity of nuisance claims. For an excellent historical article on the progression of zoning and nuisance law in the U.S., click here

The way nuisance law is being wielded in NY raises a host of policy and legal issues, spanning from fair housing, criminal procedure, constitutional law, and beyond. Here's an excerpt from the ProPublica article:

The nuisance abatement law was created in the 1970’s to combat the sex industry in Times Square. Since then, its use has been vastly expanded, commonly targeting apartments and mom-and-pop bodegas even as the city’s crime rate has reached historic lows. The NYPD files upward of 1,000 such cases a year, nearly half of them against residences. . .

A man was prohibited from living in his family home and separated from his young daughter over gambling allegations that were dismissed in criminal court. A diabetic man said he was forced to sleep on subways and stoops for a month after being served with a nuisance abatement action over low-level drug charges that also never led to a conviction. Meanwhile, his elderly mother was left with no one to care for her. . . 

The NYPD has embraced nuisance abatement actions as part of its controversial “Broken Windows” strategy of aggressively pursuing low-level offenders to prevent more serious ones. . . Sidney Baumgarten, the former city official who commissioned the drafting of the nuisance abatement law in the 1970s, said it is now being abused. He is alarmed by the sheer volume of cases, especially those aimed at households in which no one has been convicted of a crime.

“I think it’s wrong. I think it’s unconstitutional. I think it’s over-reaching,” he said. “They’re giving up their constitutional rights. And why? Because they’re afraid they’re going to be evicted from their home, with their children. There’s a certain amount of compulsion, and threat and coercion, by the very nature of the process they’re using.”

February 8, 2016 in Home and Housing, Land Use, Landlord-Tenant, Nuisance, Takings | Permalink | Comments (0)

Sunday, February 7, 2016


Playing the word association game with “Mardi Gras” might yield a variety of results such as carnival, party, parades, beads, King Cake, and a host of things that I probably can’t write on this blog. It might also conjure up another word: IP.

Intellectual property issues are rampant during Mardi Gras. Take, for example, the 2011 trademark infringement dispute between the Rex Organization and the Micro-Krewe of ‘tit RƏx (pronounced "tee Rex"). Rex is the Mardi Gras parade. It rolls on Fat Tuesday. The King of Rex is the King of Mardi Gras. Rex is king. All hail Rex.

‘Tit RƏx is the antithesis of Rex. It’s a parade of shoebox floats pulled by the makers of the floats more than a week before Mardi Gras day. The parade was named as an abbreviation of the French word petit and a humorous play on the giant dinosaur, the Tyrannosaurus Rex, more commonly called, T-Rex.

2016.02.08 Rex Photo
(Photo credit for ‘tit RƏx to Chris Graner at; Photo credit for Rex to David Grunfeld at

Despite the vast differences between the two parades, in 2011, the big Rex informed the little Rex that the little Rex was infringing on the trademark the big Rex had in the name “Rex.” Daddy Rex threatened to sue baby Rex if the fledgling parade didn’t change its name. To satisfy the demand, ‘tit Rex became ‘tit RƏx. All of this happened, allegedly, quite amicably and the organizers of ‘tit RƏx said they understood that the Rex Organization had to protect its trademark. One of the more humorous aspects of the story is that every year a newspaper article about ‘tit RƏx runs in a New Orleans paper and the “e” is not turned upside down into a schwa (Ə). Instead, the journalist includes a closing paragraph that says something like, “For everyone's peace of mind, please imagine that the letter ‘e’ in this story is upside down when legally necessary.”

There are IP issues surrounding Mardi Gras music. John Lovett (Loyola) has a new book chapter that highlights this. The actual subject of Lovett’s chapter is a comparative analysis of the revindication of movable property, but the story that is at the heart of Lovett’s analysis is all about copyright law and the music of Professor Longhair, a pianist whose name is synonymous with Mardi Gras because of his songs “Tipitina” and ”Go to the Mardi Gras.” In 1971, Professor Longhair recorded four tapes during a recording session in Baton Rouge, Louisiana. The tapes were sent to a record company in New York, allegedly as demo tapes. For unknown reasons, the tapes were never returned. After Professor Longhair’s death, the recording studio used the tracks on Professor Longhair’s tapes to produce the Grammy-winning album, House Party New Orleans Style: The Lost Sessions 1971-72, and a few years later tracks were used on the album Professor Longhair: Mardi Gras in Baton Rouge. Unsurprisingly, Professor Longhair’s heirs wanted the proceeds the tapes generated, but as Lovett discusses in his book chapter, copyright protection was unavailable. Instead, the heirs had to use the revinidicatory action to try and gain ownership of the tapes, thus giving rise to Lovett’s comparative analysis of the revindication of movables.

Last year’s case Nola Spice Designs, L.L.C. v. Haydel Enterprises, Inc., 783 F.3d 527 (5th Cir. 2015) brought up IP issues of a unique variety. There is a thing in New Orleans called a “bead dog.” The basic procedure for making one is to break up a pair of beads into a group of four beads and three groups of two beads. Connect the three groups of two beads over the longer chain of four beads and, voila you have a bead dog. Kids make them regularly. My daughter made one for every child in her class last week.  

2016.02.08 Bead Dog

(Bead Dogs made by my daughter while trying to catch shoes at the Muses parade.)

In 2009, Haydel’s Bakery, a very popular bakery in New Orleans that makes one of the best King Cakes in the city, commissioned for a mascot to be made. The mascot that was designed was a bead dog. Haydel’s had the phrase “Mardi Gras Bead Dog” trademarked and received a copyright for the Bead Dog work.

2016.02.08 Nola Spice 2016.02.08 Haydel Bead DogIn 2012, the jewelry and accessory store Nola Spice Designs was created. Nola Spice sells, among other things, jewelry made out of Mardi Gras beads in the shape of, you guessed it, a bead dog, and advertises those pieces of jewelry as “bead dogs.”

You can all guess what happened at this point. Haydel’s sued Nola Spice for trademark and copyright infringement. Given that you can currently buy “Bead Dogs” jewelry on Etsy from Nola Spice Designs, you can guess the outcome of the litigation, but read the entire opinion if you want to see a very in depth discussion of the bead dog tradition, photos included.

IP issues involve Mardi Gras clothing. In 2010, the U.S. Copyright Office recognized the Mardi Gras Indian costume made by Howard Miller as a sculpture/3d artwork, thus giving the costume copyright protection which had the benefit of, in some situations, requiring photographers to pay to sell photographs of the costumes.

IP affects even the most sacred of Mardi Gras things—liquor. In 2013, having settled its dispute with ‘tit RƏx, the Rex Organization sued King Rex Spirits for trademark infringement when King Rex Spirits produced vodka in Mardi Gras-themed bottles.  Though you can still buy Nola Spice Bead Dogs, you cannot buy King Rex vodka in stores anymore, so you can all guess the outcome of this lawsuit, too.  

Mardi Gras and intellectual property. They go together like red beans goes on rice, plastic babies go in King Cakes, and Professor Longhair goes with the piano. 


February 7, 2016 | Permalink | Comments (0)

Thursday, February 4, 2016

The Value of a Shoe, a Purse, and a Coconut

2016-02-04 08.27.09
My law professor husband and I spent the better part of Thursday evening trying to get our daughter a shoe. It’s not that we don’t have shoes. We have every shoe a seven-year-old girl could want: school shoes, soccer shoes, cowgirl boots, ballet flats that make us think we look like a grown up, rain boots with princesses on them, rain boots without princesses on them, shoes that have Elsa on them, and because, as you may recall, it snows so often in New Orleans, we have two pairs of snow boots. We have shoes.

But tonight we wanted a very particular shoe: a Muses shoe. The Muses parade which rolls the Thursday before Mardi Gras has a very special throw, hand-decorated shoes. They are glittery and sparkly and very hard to get. The Muses Krewe claims to have 1,000 riding members. My friends who are in the Krewe say they make about 30 shoes every year. Assuming every rider made 30 shoes, there would be 30,000 shoes thrown (which seems like an over-estimate to me, but we’ll use it for our purposes here). CNN reported a few years ago that an estimated 1.4 million attend Mardi Gras every year. That entire group certainly is not watching the Muses parade, but even if half of Mardi Gras goers are watching this very well-attended parade, that’s 700,000 people. With 30,000 shoes, only 4 percent of those attending the Muses parade can get a shoe. Take into account the fact that about half of the shoes are predestined for a particular individual, the actual odds of catching a random shoe are even lower.

Despite knowing that we were very unlikely to catch a shoe, we braved the crowds, the 45 degrees weather, and the staying up past our bedtime, and gave it our best shot.

We came home empty footed.

The Muses’ shoes, like the purses thrown during the Nyx parade or the coconuts thrown during the Zulu parade, are interesting forms of property because of how we value them. Most people would not pay for these items, or at least would not pay more than $10 for them. They are not usable for anything but decorations, and even then, it takes a very particular decorative style to weave in a glittery shoe, sparkly purse, and painted coconut. But even though the average individual would not pay for a Muses shoe, I can attest that thousands and thousands of people were out on Thursday night, elbowing their way through the crowd with the hopes of catching one shiny high heel. More than a few people quite obviously highly valued these shoes.

Valuing property is always complex and contentious. You needn’t look any further than Susette Kelo to know that. But valuing property is an important aspect of the law. We value property for purposes of determining what is just compensation. We assign values to property during appraisals. We value personal property during bankruptcy. In divorce, we value marital property to insure equitable divisions. We value estates at death. The law constantly places a value in terms of dollars and cents on property.

My experience on Thursday night with the Muses shoe gave me three take aways about valuing property:

  • The laws of supply and demand are real. When the quantity supplied falls, the price rises. With at most 30,000 shoes to be distributed among more than 20x that many people, the price of the Muses shoe skyrocketed. That’s true with all property—land, food, automobiles, books . . . the less there is, the more it costs.
  • Scarcity sometimes trumps reason. The Muses shoes are sought because they are special. They are special because they are scarce. It is arguably irrational that two law professors would be fighting their way through a crowd to get a shoe that will do nothing by bring glitter into our house. (Glitter, mind you, that we will be unable to get rid of for months.) But the shoes are scarce and therefore they are special and we want special things so we keep up the fight for the shoes even though our desire for the shoes is, from a purely rational standpoint, unreasonable.
  • There are things that are worth our time, but not our money. Of course, going after the shoes is not unreasonable once you factor in that there is an experience involved—the experience of taking your child to this uniquely New Orleans tradition and, if you catch one, having bragging rights for years. The whole experience was a blast, despite not catching a shoe. I wouldn’t pay a dime for the Muses shoe, but I would give hours of my day to have the whole experience again. There are some things that are, to rip off the old MasterCard commercials, priceless. In law, though, things cannot be priceless; everything must be assigned a monetary value. How we assign that value, whether we should incorporate the x factor, whether we should consider subjective valuations or simply examine objective valuations . . . all of these questions do not have easy answers but they are questions that must be continually contemplated as property is valued.    

These are certainly not novel insights; they are pretty pedestrian observations. Far more interesting comments have been made about property valuation by Judge Richard Posner (discussing pretty well anything), Avi Bell and Gideon Parchomovksy (discussing the value of property generally, the value of information about property rights), Lee Anne Fennell and Yun-chien Chang (discussing valuing co-owned property for partition purposes), to name just a few. And this is to say nothing of the plethora of scholars, including some of those aforementioned, who have written about valuing property in the context of takings.

Valuation issues regarding property will always be an issue. If you need a real life reminder of how difficult it can be to value property, come to Mardi Gras. As the saying in New Orleans goes, “happy are they whom the muses love” for they get the highly-valued property, the shoe.

February 4, 2016 | Permalink | Comments (0)

Wednesday, February 3, 2016

Public lands, common ground, and the smell of sagebrush after the rain

Jon Sagebrush

(photo by Jonathan Long)

The Malheur Occupation has presented at least two community-learning opportunities. These most recent sagebrush rebels have used a specific, limited reading of the Constitution to support their arguments, and legal and policy scholars have understandably and capably countered with a more nuanced and complete reading of the Constitution’s property-related provisions. Because the counter to “that’s unconstitutional!” is never as easy as we’d like, continuing to simplify and clarify the argument for continued federal ownership of the public lands will be useful.

But in some ways, supporters of the public lands have missed an opportunity to consider and understand the non-legal arguments of the sagebrush rebels. These non-legal arguments are generally that contemporary public lands management has treated rural westerners unfairly, and has ignored western and public lands history. While it might initially seem counter-intuitive, failing to consider carefully some of the rebels’ reasons might be problematic in a future in which threats to the public lands are likely to increase.

A common response to sagebrush rebels is that the public lands are just that, public—owned by all people, whether in New York or Nevada, and managed by the federal government in trust for all of us. In this argument, it doesn’t matter where a person lives, or whether they have or ever will visit the public lands—all should have equal say in their management. That is, of course, true in a general sense. But it assumes a specific type of and singular purpose for the public lands. The public lands story is somewhat more complex than that.

Those who have studied public lands history are familiar with three general eras: acquisition, disposition, and retention. Today, we view the disposition era somewhat out of focus, as a romantic old western that seems as much fiction as not. We forget, or at least ignore, that for a long time the official policy of the United States was to transfer the public domain to private owners. Retention largely first came in 1872 with the creation of Yellowstone National Park, and then more completely with the first forest reserves authorized in an un-debated “rider” on the General Revision Act of 1891 (note, even the “Forest Service Organic Act”—which guided management of the National Forests for eight decades—was a rider to an 1897 appropriations bill).

But disposition of the public domain did not stop being the official policy of the United States until 1976 when Congress passed the Federal Land Policy and Management Act. Even with that, disposition (i.e., transferring federal property to private owners) is still a real and important part of today’s federal property management regime, as anyone who deals with coal mining, timber harvesting, or any other resource development program on the public lands can attest.

Recognizing that the disposition and retention eras overlapped for much longer than generally acknowledged only gets us part of the way to a more complete public lands story. We often talk about the “public lands” as a single thing, but there are many categories of public lands and purposes—National Forests, National Parks, National Monuments, Wildlife Refuges, and the “public lands” managed by the Bureau of Land Management, among others. Today we think we understand, at least generally, why each of these categories exists. But their origins and original purposes were rather more contested and complicated.

Of this list, only National Parks were (or are) specifically and necessarily created by Congress for a single purpose. The others are less unified in origin and reason. When President Teddy Roosevelt created the first National Wildlife Refuges (including the Malheur National Wildlife Refuge in 1908), he did so under somewhat questionable authority. Many of our National Forests were initially reserved despite express opposition from Congress—President T. Roosevelt’s “Midnight Forest Reserves” included 16 million acres of now National Forests that were reserved after Congress had signed legislation prohibiting the President from creating more reserves (but before President Roosevelt signed the bill into law). And controversy over the use of the Antiquities Act to create National Monuments dates from its very beginnings—when it was used to create Devil’s Tower National Monument, and to help create Grand Canyon and Grand Teton National Parks—to today. On Tuesday, the Senate narrowly defeated a bill that would have limited the President’s use of the Antiquities Act.

Focusing on the National Forests alone demonstrates the potential disconnect between purpose and contemporary perception of the public lands. The 1897 Organic Act specified that the purpose of the forest reserves was to secure “favorable conditions of water flows, and to furnish a continual supply of timber[.]” That first purpose, at least, was very much locally-focused, given how water is managed in the West. And these purposes—and none other—remained until 1960 when the Multiple Use Sustained Yield Act added outdoor recreation, range, and wildlife and fish as purposes of the National Forests. It is entirely appropriate today to expect that National Forests be managed, in part, to protect biodiversity. But that was not always the case, nor is it the sole designated purpose of those lands.

With respect to the BLM-administered public lands, they were managed largely for disposition, range, and mineral development until 1976, when FLPMA specified that they also should be managed for a wider variety of uses. Today they are still managed largely, in some places, for the historically dominant uses—the joke about the “Bureau of Livestock and Mining,” while increasingly unfair, does have some reason for being. Although we might eventually so decide, the BLM public lands are not yet, nor have they ever been, intended exclusively as an outdoor recreation mecca or wildlife sanctuary.

So what is the point of this admittedly simplistic, incomplete attempt at history? The public lands are complex and contested. And many current public lands users were part of that complex public lands history. Long-term successful management of the public lands as public lands will require an intricate and nuanced understanding of the conflicting notions of purpose and ownership that have always been a part of the public lands story. Going forward, it will be insufficient to simply claim, “but they are public!” and leave it at that, even if the law seems to allow us to do so. That is too simplistic, and ignores the long history in which they weren’t public, at least not as most people understand that word today. It also ignores that, even today, we manage them for a variety of private uses, granting enforceable property rights in the public lands to private individuals. More frightening, should the assumption prove inappropriate, it assumes that efforts to “take back” the public lands never gain traction in Congress or the Supreme Court.

I was recently criticized as being “naïve and unrealistic” in my assessment of contemporary public lands conflict. That is likely true—I still believe that no one is immune to the smell of sagebrush after a rain. Maybe growing up a tree-hugger in a sagebrush town has that effect. However, naïve or not, I do think that understanding the public lands requires experiencing them on the ground and face-to-face with the people, trees, cows, and sagebrush. We cannot claim nor expect legitimacy if we ignore the history of the place or its people.

We need to love our public lands enough to be willing to consider why other people might not. Perhaps better said, we need to love them enough to be willing to consider why other people might love them differently. I believe that there are things, at least a few, that we can all agree on. And that’s where successful public “public lands” management starts.



February 3, 2016 in Land Use, Natural Resources | Permalink | Comments (0)

Monday, February 1, 2016

Finders Keepers and King Cake Babies

2016.02.01 Photo

Finders law is always fun teach. It’s fun in part because everyone, even my seven-year-old daughter, knows the rule “finders keepers.” It’s also fun because the law of finders gives an easy avenue into topics I particularly enjoy, namely equity and comparative property law.

Teaching finders law frequently begins by demonstrating that there is legal support for the playground rule “finders keepers” (except with regards to the true owner) in old English cases like Armory v. Delamirie or Hannah v. Peel. Then comes the discussion on equity. What if the property was actually mislaid? Enter McAvoy v. Medina and the equitable notion that someone who mislays his property does not lose his ownership over that property. You can come up with hours of hypotheticals on the types of property that might be found and what the fair result should be.

The other opportunity finders law presents is the opportunity to discuss how other legal systems approach the same problem. The common law that most American law students study takes the ex post, jurisprudence-driven approach: a set of facts arise and the court makes a determination about how to resolve those facts based on past jurisprudence. This is what most law students are familiar with. But finders law provides an easy way to introduce American law students to the ex ante, statute-driven approach of the civil law. Sure, almost any topic in property law provides this opportunity, but finders law is a particularly easy way for students to be introduced to civil law property ideas.

Civil law systems, as might be expected, approach finders law from the question of classification. Things can be treasures, things can be lost, things can be abandoned. What classification the property is given determines what rights the finder has in the property.

Under French Code Civil article 716, a “treasure” is defined as any hidden or buried thing, the ownership of which cannot be proven. If a treasure is found on the estate of another, half of the treasure belongs to the finder and half belongs to the owner of the estate on which the treasure was found. See also La. Civ. Code art. 3420. The Spanish Código Civil creates a similar definition of treasure, defining it as any money, jewelry, or precious object whose owner is unknown. See Código Civil art. 352. Under Spanish law, treasure belongs to the owner of the land in which the treasure was found. Código Civil art. 351.

The French and the Spanish legal systems both create the idea that things may not be treasure, but instead may be abandoned. The French Civil Code does not provide a specific remedial rule in this context, but the Spanish Código Civil does: occupancy. If property is abandoned (meaning the prior owner gave up his possession), the abandoned thing is owned by no one and thus subject to the civilian laws of occupancy. Under occupancy, the finder eventually becomes the owner of the thing, but not without waiting some time period so that the true owner can attempt to be found See Código Civil art. 615 (requiring a two year waiting period).

German law has an entire subtitle on finders in the Bürgerliches Gesetzbuch (BGB). If a thing is a “lost thing,” then the finder must try to find the owner, BGB § 965, and has a series of duties with regards to the lost thing, such as keeping it in safe custody or putting the lost thing up for public auction if the lost thing may be spoiled or too expensive to keep in safe custody, BGB § 966. If the owner of the lost thing does not appear after six months, the finder becomes the owner. BGB § 973.

However, under German law, if the thing is a treasure, then the finder immediately becomes the owner of half of the treasure and the owner of the thing in which the treasure was found owns the other half. BGB § 984. A treasure in German law is defined as a thing that has been hidden for so long its owner cannot be established.

The civil law outcomes are not terribly different than those at common law, but the civil law ex ante classification of lost property versus abandoned property versus treasure, and remedies based on the classification, highlights in a relatively simplistic manner the different approaches of the civil law and common law. The ultimate ends may be similar between the different systems, but the means taken to get there are different.

Given that Property is a spring semester 1L course at my institution, Property is always taught during the Mardi Gras season. Thus, finders law also gives an excuse to bring in a real life problem that is very dear to the hearts of all who call New Orleans home: who owns the King Cake baby? The finder? The maker of the King Cake? Do you take the Solomon approach and split the King Cake baby in two? These are some of the important property questions facing Carnival goers. And don’t worry—we have a law on the topic, even if it is a law created by tradition. The rule is that if you find the King Cake baby, you keep it, but you have the duty to bring in the next King Cake.

While thinking about King Cake and finders law, I realized that not all bakeries across the United States are busy making the scrumptious delight we in New Orleans enjoy on almost a daily basis between Epiphany and Mardi Gras. Thus, I thought I would help folks out by sharing my own King Cake recipe so you, too, can enjoy the holiday. It’s really not that hard to make—I’m a terrible cook, but as the photo indicates, my King Cake turned out pretty well—and can be eaten with or as any meal of the day. So go home, make yourself a King Cake, contemplate finders law, and laissez les bon temps rouler!


Sally’s King Cake Recipe (based on the recipe of a far better cook, Betty Crocker, with a few modifications)

Cake Ingredients

3 to 3 ½ cups of flour

2 ¼ teaspoon of rapid rise yeast

1 cup of whole milk

¼ cup of sugar

1 teaspoon kosher salt

2 large eggs

6 tablespoons of unsalted butter

Cinnamon Filling Ingredients

1 cup light brown sugar

1 ½ teaspoons of ground cinnamon

5 tablespoons of unsalted butter (softened)

Icing Ingredients

2 cups powdered sugar

2 tablespoons of milk

1 teaspoon of vanilla

Sugar Topping Ingredients

1 ½ cup of sugar divided into three ½ cup amounts

food coloring

Heat milk, sugar, and salt in a small saucepan over medium-low heat for 5 to 7 minutes, stirring regularly to make sure the sugar dissolves.

Put 2 ½ cups of flour and yeast into mixing bowl. Add milk/sugar/salt while it is still hot. Mix until ingredients all combined. If using a stand mixer, mix on low using a paddle attachment.

Add eggs, one at a time, mixing in until the eggs are fully incorporated.

Add the remaining ½ to 1 cup of flour and the butter. To add the flour and butter, add a spoonful of flour, then a tablespoon of butter, then a spoonful of flour, then a tablespoon of butter, etc., until ingredients are fully mixed in and the dough is forming into a single ball. If using a stand mixed, mix on low using the dough hook.

Once all of the ingredients have been incorporated, keep mixing for another 8 to 10 minutes.   If using a stand mixer, mix on low using the dough hook and be sure to stop the mixer periodically to scrape the dough off of the hook.

After mixing, put ball of dough into a bowl greased with butter. Cover bowl with saran wrap and put in the refrigerator for one hour. The ball of dough should double in size.

While waiting for the ball of dough to rise, make the cinnamon filling by mixing cinnamon, light brown sugar, and butter in a small bowl with a fork. The cinnamon filling is complete when it has the consistency of wet sand.

When the dough has risen, roll it out so that it is slightly larger than the bottom of a cookie sheet. Cut the dough length-wise into three strips. Take each strip and roll it out individually a little more.

Place the cinnamon filing in the middle of each strip of dough, then fold length-wise the edges of the strips of dough together. Press the edges together carefully. If you don’t carefully secure the edges, the cinnamon filing will come out of the cake more than you want it to during the baking process.

Take the three cinnamon-filled strips of dough and braid them together. Take both ends of the braid and attach them together so that the braided dough makes an oval shape.

Place braided dough in its oval shape on a greased cookie sheet. Cover it in saran wrap and let it sit for 1 or 2 hours, allowing the dough to rise more.

Bake the dough at 350 degrees for 22 to 25 minutes, then put foil over it and bake for an additional 5 minutes.

After removing the King Cake from the oven, let it sit for about 20 minutes on the cookie sheet in the open air. Then move the King Cake to a cooling rack and let it cool for an hour.

While the King Cake is cooling, make the three sugar toppings (yellow, green, and purple) by taking ½ cup of sugar and adding drops of food coloring to it. Using your fingers, rub the food coloring into the sugar. For yellow, use 5 to 7 drops of yellow food coloring. For green, use about 5 to 7 drops of green food coloring. For purple, use 3 drops of blue food coloring and 5 drops of red food coloring.

After making the sugar topping, make the icing. To make the icing, add the powdered sugar, milk, and vanilla in a bowl and stir using a fork.

As soon as the icing is ready, move the King Cake to whatever dish you wish to serve the King Cake on. Then, using a spoon, spoon the icing on to the cake. The icing will naturally fall to the sides. As soon as the icing is on the cake, add the sugar topping, alternating between yellow, green, and purple.

Serve immediately. The King Cake is best eaten the day it is made, though you can carefully cover it and eat it for a few more days. If eating more than 24 hours after making it, heating a slice of King Cake for 5 to 10 seconds in the microwave is a very enjoyable way to serve it.

February 1, 2016 | Permalink | Comments (0)

ALPS Registration Extended

Our friends at Queen's University in Belfast have announced that they have extended the deadline to register for this year's ALPS (Association for Law, Property, and Society) conference until March 1, 2016.  Registration should be completed online through the conference website.

The conference organizers are also pleased to announce that the keynote speaker for ALPS 2016 will be Professor David Cowan, University of Bristol, UK.

Professor Cowan's research is mostly socio-legal, and focuses on social theory, housing and property system(s). His books include Homelessness: The (In)Appropriate Applicant (Dartmouth, 1997), Housing Law and Policy (Cambridge University Press, 2011), as well as co-authored books, The Appeal of Internal Review (Hart, 2003), Regulating Social Housing: Governing Decline (Glasshouse, 2005), and Great Debates in Property Law (Palgrave MacMillian, 2016).

Professor Cowan's talk will focus on marginal ownership and tenurial differentiation. He will draw on data derived from a recent Leverhulme Trust funded project (on which he worked with Helen Carr and Alison Wallace), which focused on a low cost home ownership intervention known as "shared ownership", to explore crisis moments in marginal "home ownership" initiatives:

February 1, 2016 | Permalink | Comments (0)

Sunday, January 31, 2016

Housing in a Time of Expanding Crisis @USFLaw


This past Friday I had the pleasure of participating in a symposium on Housing for Vulnerable Populations and the Middle Class: Revisiting Housing Rights and Policies in a Time of Expanding Crisis, hosted by the wonderful faculty and law review folks at the University of San Francisco School of Law (and a special hat tip to our very gracious host, Tim Iglesias). The timing of this gathering couldn’t have been better. 2015 was a busy year in the housing world as SCOTUS upheld the validity of the disparate impact theory under the Fair Housing Act and HUD issued its significantly updated regulations on the obligation to affirmatively further fair housing. Moreover, cities and local governments are being looked to more than ever to solve major and seemingly intractable issues around housing, spurring a host of new policies, programs, and initiatives. The impressive participants of the USF symposium (coming from practice, government, non-profit, and the academy) explored these and related issues, including potential solutions to pressing problems of housing. Here’s an overview of what the panelists had to say:

What’s the matter with housing?
Rachel Bratt (Harvard Joint Center) kicked off the day by giving an overview of the nation’s current housing woes. She noted that the increase in income inequality over the last 20 years, combined with disinvestment and misinvestment of public resources, has been at the core of the affordable housing issue. She also described how political spending has played a role in further entrenching existing housing interests (in 2015, $234M was spend on real estate/finance lobbying, second only to healthcare). Bratt also explained the uneven distribution of federal housing benefits to the wealthy and the continued persistence of concentrated racial segregation. Rosie Tighe (Cleveland State-Urban Affairs) followed by describing the particular housing problems facing so-called “shrinking cities” (those places in an intense population-decline). She noted that the issue for these cities has more to do with poor quality affordable housing, rather than quantity. Tighe described the failure of low-income housing tax credits to meet the needs of these locales, and discussed the need for more scattered-site developments in these areas, while recognizing the financing and property management challenges inherent in such developments. Peter Dreier (Occidental-Poli Sci) rounded-out the discussion by pointing out that the current political discussions around the presidential election have focused much on wages and other issues, but not at all on housing. He described some reasons for the absence of attention to this important area, and drew the strong connection between household over-all health and housing.

What’s the matter with our current solutions?
Chris Odinet (Southern) started the discussion by describing some current efforts by states and local governments to deal with the fall-out from the housing crisis and on-going issues of blight and abandoned property. He then explained a number of recent federal court cases and acts taken by the FHFA that have significantly frustrated these efforts and also seriously call into question the ability of states and local governments to be innovative in dealing with issues of housing when federal programs are involved. Michael Allen (Relman, Dane, & Colfax) discussed the Fair Housing Act and the new “affirmatively furthering” regulations. He went into depth on contemporary disagreements between affordable housing advocates (who support more affordable units) and fair housing groups (who support integrated housing, and advocated for a way to reconcile their views under the auspices of these new HUD regulations. John Infrana (Suffolk) followed by describing the types of housing in and changing household composition of many cities. Despite these changing demographics, however, housing has not kept pace. In connection with this, Infranca pointed to the many possibilities that micro-housing and accessory-dwelling units (ADU) provide in the way of meeting this need. He noted that ADUs allow for greater economic diversity and can better align with demographic trends, but noted current legal barriers to them such as occupancy requirements and zoning restrictions. Marcia Rosen and Jessica Cassella (both of the National Housing Law Project)) concluded the panel by discussing the current state of the public housing program in the U.S., noting that there are currently 1.2M units (and ever-declining). She described HUD’s recent efforts to give public housing authorities (PHAs) a financing tool to rehab and rebuild these properties through the Rental Assistance Demonstration Program (RAD). This program essentially allows PHAs to convert their public housing stock into section 8 funded housing, and to combine section 8 with tax credits and other forms of debt and equity financing to fund the project. Cassella stated that although the program has great potential in terms of revamping old and decaying public housing properties, there are draw-backs in the way of transparency and long-term funding stability.

What are some new solutions?
For this final panel, John Emmeus Davis (Burlington Community Development Associates) gave an overview of community land trusts (CLTs)—currently over 280 exist nationwide—and their successes across the country. He noted that these types of entities are usually most successful in communities where there would otherwise be no affordable housing available. He noted the ability of CLTs to empower communities, protect tenants, and provide street-level land reform. Andrea Boyack (Washburn) followed by noting the current lack of rental stock compared to the growing demand across the country. She pointed out that in 2015 over half of the population of the U.S. is renting, with an annual demand of 300K new rental units per year. She followed by describing some current statistical trends in American homeownership and posited a number of ways in which cities and states in particular can seek to achieve solutions to these major housing problems. Lastly, Lisa Alexander (Wisconsin) discussed the the human right to housing, not through the lens of federal law, but rather through the ways in which localities across the country are building legal structures that provide many of the rights associated with a right to housing. She noted that market participation has been important to this process, and she used the “tiny homes for the homeless” movement and community control of vacant land as examples.

You can watch each of these presentations by clicking on the youtube video above. Participants, moderators, and USF Dean John Trasviña (former HUD assistant secretary for fair housing) are pictured below.

January 31, 2016 in Conferences, Home and Housing, Land Use, Landlord-Tenant, Law Reform, Mortgage Crisis, Real Estate Finance, Real Estate Transactions, Recording and Title Issues, Takings | Permalink | Comments (0)

Friday, January 29, 2016

Map of the Day: Writing Systems of the World

Wrting systems

January 29, 2016 | Permalink | Comments (0)

Kofele-Kale on Asserting Permanent Sovereignty Over Ancestral Lands

Kofele-kaleNdiva Kofele-Kale (SMU) has posted Asserting Permanent Sovereignty Over Ancestral Lands: The Bakweri Land Litigation Against Cameroon (Annual Survey of International & Comparative Law) on SSRN.  Here's the abstract:

The Article focuses on the recently concluded Bakweri land case against Cameroon in the African Human Rights Commission. The Article uses this litigation as the basis for a re-examination of a host of issues relating to the enforcement of human rights, especially land rights, in postcolonial countries making the slow transition from single-party authoritarian rule to multi-party democratic states. More importantly, it takes a fresh look at the exhaustion of local remedies rule. It asks the relatively simple question: whether an indigenous people seeking to reclaim and assert permanent sovereignty over ancestral lands, forcibly expropriated from them during the period of colonial occupation and subsequently vested in the post-colonial State, should be required to comply with the exhaustion of domestic remedies rule in a country where the rule of law is in its infancy and where the judiciary is neither independent nor impartial.The Article argues that the exhaustion rule should be dispensed with where it is demonstrably clear that local courts are notoriously lacking in independence; there is a consistent and well-established line of precedents adverse to the claimant; and the respondent State does not have an adequate system of judicial protection that complainant can rely on. The Article concludes by advocating for the broadest interpretation possible of the exhaustion rule in order to (a) level the playing field for both parties-the defenseless citizen whose fundamental human rights have been violated and the powerful State responsible for the violation; (b) preserve the right of individual petition now entrenched in all international human rights instruments; and (c) give true meaning to the principle of equality-of-arms upon which all human rights contests are anchored.

January 29, 2016 | Permalink | Comments (0)

Rhee on Mortgage-Backed Securities

June-RheeJune Rhee (Yale - Business School) has posted Getting Residential Mortgage-Backed Securities Right: Why Governance Matters (Stanford Journal of Law, Business, and Finance) on SSRN.  Here's the abstract:

Residential mortgage-backed securitization (RMBS) is a type of asset-backed security in which the RMBS investor's return on its investment comes from the monthly mortgage payments received from the underlying pool of mortgages. Before securitization, mortgage lenders kept loans on their balance sheet until maturity retaining mortgage risks. Through securitization, however, these lenders were able to sell these mortgages and their risks to other entities (RMBS investors) that were more willing and believed to be better suited to take on such risks. Before the financial crisis, RMBS was a popular investment opportunity widely held by pension funds, mutual funds and other financial firms. As these entities participated in the mortgage market, sources of funding for potential homeowners expanded and mortgage risks were distributed to entities better fit to take on the risk. These benefits were not sustainable, however, as the integrity of mortgage and RMBS value was undermined as seen during the 2007 financial crisis.

In a recent RMBS lawsuit brought by the RMBS investors against the mortgage lenders (referred to as mortgage originators in RMBS), two-thirds of sample mortgages acting as a collateral for RMBS were shown to have breached the representations and warranties provided by the mortgage lender. This means that two-thirds of the collateral for RMBS were lower quality than represented by the lenders and that the collateral was insufficient to support the stated quality of RMBS. The warranties included compliance with the mortgage lenders' underwriting guidelines, accuracy of mortgage level information and no fraud in issuing and managing these mortgages. In another lawsuit brought by institutional investors against an issuer of RMBS, the investors showed a "systemic and pervasive deviation from usual, customary and lawful servicing practices by servicers managing the collateral mortgages" for the investors of RMBS. As revealed in the financial crisis, these examples unfortunately were not rare occurrences. One has to wonder how this massive undermining of mortgage and RMBS integrity was possible. RMBS investors were considered more "sophisticated" players in the market. This paper attempts to answer this question through a close analysis of the RMBS contractual structure.

January 29, 2016 | Permalink | Comments (0)

Thursday, January 28, 2016

Harvard Postdoctoral Fellowships in Private Law

Our friends at Harvard have announced two exciting fellowships for recent grads.  If you know any promising young property scholars who might be interested, please pass this information along.  Here's a link to Harvard's descriptions of the fellowship (requires a bit of scrolling down).  I'm posting below the call for the Private Law Fellowship.  There are additional fellowships for those with specific interests in intellectual property.



PURPOSE: The Project on the Foundations of Private Law is an interdisciplinary research program at Harvard Law School dedicated to scholarly research in private law.   Applicants should be aspiring academics with a primary interest in one or more of property, contracts, torts, intellectual property, commercial law, unjust enrichment, restitution, equity, and remedies. The Project welcomes applicants with a serious interest in legal structures and institutions, and welcomes a variety of perspectives, including economics, history, philosophy, and comparative law. The Fellowship is a postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers. Fellows are selected from among recent graduates, young academics, and mid-career practitioners who are committed to spending two years at the Project pursuing publishable research that is likely to make a significant contribution to the field of private law, broadly conceived. More information on the Center can be found at:

PROGRAM: Postdoctoral Fellowships in Private Law are full-time, two-year residential appointments, and the Project is now advertising for a postdoctoral fellow starting in the Fall of 2016. Fellows devote their full time to scholarly activities in furtherance of their individual research agendas. The Project does not impose teaching obligations on fellows, although fellows may teach a seminar on the subject of their research in the Spring of their second year. In addition to pursuing their research and writing, fellows are expected to attend and participate in research workshops on private law, and other events designated by the Project. Fellows are also expected to help plan and execute a small number of events during their fellowship, and to present their research in at least one of a variety of forums, including academic seminars, speaker panels, or conferences. Through organizing events with outside speakers and attending seminars, fellows interact with a broad range of leading scholars in private law. The Project also relies on fellows to provide opportunities for interested students to consult with them about their areas of research, and to directly mentor its Student Fellows. Finally, fellows will be expected to blog periodically (about twice per month) on our collaborative blog, New Private Law (

STIPEND AND BENEFITS: Fellows have access to a wide range of resources offered by Harvard University. The Center provides each fellow with office space, library access, and a standard package of benefits for employee postdoctoral fellows at the Law School. The annual stipend will be $50,000 per year.

ELIGIBILITY: By the start of the fellowship term, applicants must hold an advanced degree in law. The Center particularly encourages applications from those who intend to pursue careers as tenure-track law professors, but will consider any applicant who demonstrates an interest and ability to produce outstanding scholarship in private law and theory. Applicants will be evaluated by the quality and probable significance of their research proposals, and by their record of academic and professional achievement.


APPLICATION: Completed applications must be received at by 9:00 a.m. on March 1, 2016. Please note that ALL application materials must be submitted electronically, and should include:

  1. Curriculum Vitae
  1. PDFs of transcripts from all post-secondary schools attended.
  1. A Research Proposal of no more than 2,000 words describing the applicant’s area of research and writing plans. Research proposals should demonstrate that the applicant has an interesting and original idea about a research topic that seems sufficiently promising to develop further.
  1. A writing sample that demonstrates the applicant’s writing and analytical abilities and ability to generate interesting, original ideas. This can be a draft rather than a publication. Applicants who already have publications may also submit PDF copies of up to two additional published writings.
  1. Three letters of recommendation, emailed directly from the recommender. Letter writers should be asked to comment not only on the applicant’s writing and analytical ability, but on his or her ability to generate new ideas and his or her commitment to pursue an intellectual enterprise in this area. To the extent feasible, letter writers should provide not just qualitative assessments but also ordinal rankings. For example, rather than just saying a candidate is “great,” it would be useful to have a statement about whether the candidate is (the best, in the top three, among the top 10%, etc.) among some defined set of persons (students they have taught, people they have worked with, etc.).

All application materials with the exception of letters of recommendation should be e-mailed by the applicant to Letters of Recommendation should be emailed directly from the recommender to the same address.

For questions or additional information, contact:

Bradford Conner, Coordinator,

January 28, 2016 | Permalink | Comments (0)

Tuesday, January 26, 2016

Juma of Itanda

Victoria nile

(photo of the Victoria Nile in Uganda)

Moscow, Idaho—where I live and teach—is situated in a wonderfully complex property landscape. Unlike many areas in the interior West, we are near National Forests and Wilderness areas, as well as largescale private timber lands. Our University is situated on historic Nez Perce tribal land, and the Nez Perce’s flight toward Canada began just south of here. And we are in salmon and steelhead habitat, have access to some of the best whitewater boating in the world, and are a western stone’s throw from the somewhat controversial four Lower Snake River dams. Rivers, and what many of us think of as our rights in free-flowing rivers, are an integral part of our community and culture. We have unlimited opportunities to think and talk about how we define and allocate rights to natural resources.

So, while it might not be obvious, that’s why I’m recommending you watch a short video about Uganda. Produced by our hometown favorite greatest company in the world, Northwest River Supply, the video introduces part of the conflict around the Isimba Dam on the Victoria Nile in Uganda. Having just spent a few weeks in Chile talking about dams on the Bio Bió, and wondering about how to think about dams versus recreation and tourism in a developing world context, I think this video tells a very useful story.

Juma of Itanda from NRS Films on Vimeo.

January 26, 2016 in Natural Resources | Permalink | Comments (0)