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Editor: Stephen Clowney
Univ. of Kentucky College of Law

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Tuesday, June 12, 2007

Possibility of Light Blogging For Rest of Week

I'll be on the road for the rest of the week, and though I'll have my laptop with me, I might not have much of a chance to post for the next few days.  Like Al, I've been under water for much of the last semester.  Hope to have time to do more original substantive posting than I've been doing lately when I get back.

Ben Barros

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June 12, 2007 in About This Blog | Permalink | Comments (0) | TrackBack (0)

Advice to Law Journals: In Eighteen Parts (more or less)

I've been very quiet of late.  Mostly this is due to the crush of work--committee work (heard something like thirty job talks last year, for instance, and that's not the half of committee work); taught a new trusts class in the spring, which had a serious practical component; trying to finish a supplemental casebook that I'm co-authoring with Alberto Lopez and Kali Murray (more on this as we finish that up) on ways to integrate race into the property curriculum--it's tentatively titled "Integrating Spaces," and desperately trying to work on pieces on implied beneficiaries in trust law, monument law, and moral philosophy in between everything else.  Also (as if anyone cares), moving--which spins off an amusing story about some covenants on the new place.  Suffice it to say for the time being, there won't be any signs in my yard or pine trees, for that matter, though there will always be at least two trees in the front yard.  Bet there's an interesting story behind the no pine trees covenant.  Also, there's a creative attempt to make the covenants, essentially, last forever.  That's worth a few chuckles.  More on all this later.

In the interim, lots of other stuff to talk about, including (the almost propertyprof topic of) Gordon Wood's review of Robin Einhorn's American Slavery, American Taxation in the most recent issue of New York Review of Books (it raises some great issues of how legal historians balance concerns over the present, which cause us to ask historical questions, with the “critical control” over ourselves as historians that is necessary to avoid having our histories devolve into argument by (a)historical anecdote or, worse, brainwashing by historical example.)

I'm still thinking about law reviews.  And so I'm going to "workshop" some thoughts: ways to improve a  law journal.  It takes its inspiration from a charming essay some years ago (1999) in the Journal of Legal Education by James Lindgren, "Fifty Ways to Promote Scholarship" (available at Hein-on-line here).  So far, I have only eighteen ways to improve the law journal. But I imagine that as I work through these over the coming weeks, some more will bubble up (I hope from readers, though maybe I'll have a few more thoughts as well).

Maybe I'll put it together with another very brief essay I started writing some years ago, "Law review editorship as training for hierarchy."  Derivative of Duncan Kennedy, of course; though I go in a somewhat different direction from him.  I suppose the thesis is pretty obvious from the title.

So, back to the eighteen pieces.  My plan (we'll see how long this lasts) is to post a piece or a few pieces of advice on how to improve a law journal at a time.  My sense is that a lot of journals are already doing some of these things; maybe there won't be anything new, though I have at least one suggestion that I think is highly unusual.  Only one journal that I know of does it; to preserve the suspense, I'll put that towards the end of the series.

So let me start off with my first piece of advice:

1.  Involve faculty in the selection of articles.

One of the great complaints of law reviews is that selections of articles are made by students.  Having the faculty involved in the selection is one pretty simple response.  Perhaps the best balance between student control and faculty consultation involves faculty vetting articles once the student articles editors have done an initial cull.  This was the process that the Columbia Law Review used way back before the flood when I was an editor, though it was driven by the articles editors' seeking about faculty.  Though perhaps here I'm thinking more of a top-down approach: the faculty imposing the requirement on the editors that they get approval before making an offer.

This, of course, raises the question: are the faculty any better at picking articles than the students?  You may just be substituting one groups' prejudices for those of another.  At a minimum, faculty will have read more scholarship than the students and so ought to have more experience with what types of questions and methods will generate a successful piece.  One hopes, moreover, that the law review will match up the subject of the article under review with faculty who have some expertise in the subject.  I worry this may, sometimes, lead to uneven standards, however.  I think I'm probably more positive in my recommendations about anything put in front of me than some of my colleagues (and probably less positive than others).  So students reading a review of an article I write may be more inclined to accept it than if another of my colleagues wrote the review.  Moreover, I think there are problems with asking faculty about articles written by their friends (or, I suppose--though I hope and suspect this is rarer, their enemies).  And the former problem is exacerbated if the students look to faculty to recommend pieces cold--that is, if the students allow faculty to walk the articles of colleagues at other schools into the law review offices.

Next installment after I return from conferencing and get some more work done.

Alfred L. Brophy
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June 12, 2007 in Law Schools | Permalink | Comments (0) | TrackBack (0)

Rent Control and Housing Stability

Over at the Land Use Profs Blog, Paul Boudreaux has an interesting post on rent control and housing stability.  As I argued in this article, I agree that policies favoring housing stability are supported by people's personal connections to their homes, but that these legitimate interests are far outweighed by the negatives created by rent control laws.

Ben Barros

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June 12, 2007 | Permalink | Comments (0) | TrackBack (0)

Monday, June 11, 2007

Not so much

Being a fan of various property issues relating to human body parts, I was very excited about the potential for a CNN story with the title From Tissue Theft to Jail?  Turns out, though, that she just stole some toilet paper from a court house.  Such a letdown.

Ben Barros

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June 11, 2007 | Permalink | Comments (0) | TrackBack (0)

Cash-Back Mortgages

The NY Times has an interesting Freakonomics piece on cash-back mortgages.  An excerpt:

[A]s he interviewed mortgage brokers, real estate agents and bank loan officers, he heard regular mention of a mysterious kind of deal in which the seller gave the buyer a cash rebate without noting this transaction in the mortgage paperwork. (It is illegal for buyers and sellers to transfer cash or assets without properly notifying the lender.) Of course, none of the people that he interviewed copped to this practice. But sometimes the signs of a cash-back transaction were, quite literally, out in the open for all to see, on banners hanging from for-sale properties or in printed real estate ads.

How does this kind of deal work?

Pretend that you want to buy a house that costs $200,000 but don’t have $20,000 to make the 10 percent down payment that would get you a decent mortgage. The seller’s real estate agent offers a solution: let’s make the official purchase price $220,000 instead of $200,000, he says — but in return, the seller will give you $20,000 in cash. This rebate will be a separate transaction, the agent explains, which doesn’t need to be written into the mortgage paperwork. (A seller can legally offer a cash-back incentive, but it would have to be reported to the bank — which would negate the advantage of having the bank think that the buyer already has the cash.)

Voilà! Suddenly you have the $20,000 in cash necessary to get a good mortgage, and the seller still nets his original price of $200,000. The only difference is that the bank records the sale of the house at an inflated $220,000. And, instead of borrowing 90 percent of the value of the house, you have in fact borrowed 100 percent. “In short,” Ben-David writes, “a buyer can purchase the property with no down payment.” . . .

Having isolated the suspicious transactions in the data, Ben-David could now examine the noteworthy traits they shared. He found that a small group of real estate agents were repeatedly involved, in particular when the seller was himself an agent or when there was no second agent in the deal. Ben-David also found that the suspect transactions were more likely to occur when the lending bank, rather than keeping the mortgage, bundled it up with thousands of others and sold them off as mortgage-backed securities. This suggests that the issuing banks treat suspect mortgages with roughly the same care as you might treat a rental car, knowing that you aren’t responsible for its long-term outcome once it is out of your possession.

Ben Barros

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June 11, 2007 in Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)