Thursday, August 20, 2009

PropertyProf Wanted @ Drake

DRAKE LAW SCHOOL seeks applications for a tenure-track position commencing in the 2010-11 academic year, pending final budget approval.  We are interested in both entry-level and experienced candidates. Teaching needs tentatively include Property and related courses, but candidates with strong credentials with any teaching interest will be considered.  Drake is an equal-opportunity employer and applicants who will contribute to the diversity of the faculty are particularly encouraged to apply.  We seek candidates with J.D. degrees from accredited schools, who exhibit the ability to produce excellent scholarship and become outstanding teachers.  Contact: Professor Jerry L. Anderson, Chair, Faculty Recruitment Committee, Drake Law School, 2507 University Ave., Des Moines, IA 50311 or e-mail:

August 20, 2009 in Help Wanted | Permalink | Comments (0) | TrackBack (0)

Fennell and Roin on Controlling Residential Stakes

Lee Anne Fennell and Julie Roin (Chicago) have posted Controlling Residential Stakes on SSRN.  Here's the abstract:

Local communities often suffer when residents have too small a stake in their homes — a point underscored by recent rashes of foreclosures and abandonments, and implicated by longstanding questions about the effects on communities of renters and owner-occupants, respectively. However, homeowners with too great a financial stake in their homes can also cause difficulties for local governance by acting as risk-averse NIMBYs. Local governments should have a strong interest in helping members of their communities move away from problematic forms of stakeholding and toward more desirable intermediate positions. This essay examines how and why governmental entities at the state and local levels might regulate or shape the financial stakes that residents have in their homes. We give particular attention to the role local governments may play in facilitating homeowner and tenant access to index-based financial instruments that adjust residential risk-bearing. More radically, we suggest that local governments, assisted by state law, could formulate shared equity arrangements in which local residents hold stakes in the housing markets of surrounding localities as well as in their own jurisdictions.

Ben Barros

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August 20, 2009 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Lavine on Transparency and Accountability in New York's Industrial Development Agencies

Amy Lavine (Albany) has posted Getting Past the Prisoners' Dilemma: Transparency and Accountability Reforms to Improve New York's Industrial Development Agencies on SSRN.  Here's the abstract:

This paper discusses the pros and cons of New York's Industrial Development Agencies (IDAs), which offer economic development subsidies to attract and retain businesses. IDA reform has become an important public policy issue, and the paper explores some of the reforms that have been proposed, including measures that would: increase monitoring and reporting requirements; make the subsidy award process more objective; increase public participation; heighten ethics requirements for IDA boards; impose penalties for subsidy abuse; make IDAs more accountable to school districts and local governments; and that would improve the environmental and social qualities of IDA projects. The paper concludes that many reforms are warranted, and it suggests that reform supporters should prioritize these accountability and transparency measures. Controversial reforms, such as increased wage requirements and clawbacks, should be modified so as to make them more acceptable to business interests. Compromise proposals might rely on incentives rather than mandates, or include sufficient exceptions.

Ben Barros

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August 20, 2009 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

PropertyProf Wanted @ Indiana/Indianapolis

INDIANA UNIVERSITY SCHOOL OF LAW-INDIANAPOLIS invites applications from entry-level and experienced candidates for tenure-track and tenured appointments beginning in the 2010-2011 academic year.  The law school seeks colleagues with distinguished academic records who are committed to excellence in teaching, scholarship, and service.  Our curricular needs include Tax, Criminal Law and Procedure, Trusts and Estates, Property, Real Estate Transactions, Professional Responsibility, Corporate Finance, Commercial Law, Administrative Law, and Conflict of Laws.  We are strongly committed to achieving excellence through intellectual diversity and strongly encourage applications from persons of color, women, persons with disabilities, the LGBT community, and members of other groups that are under-represented on university faculties.  The law school is an Equal Opportunity/Affirmative Action Institution and offers domestic partner benefits. For more information about the school, visit h    ttp://  To apply, contact Gerard N. Magliocca, Chair, Faculty Recruitment Committee, Indiana University School of Law-Indianapolis, 530 West New York Street, Indianapolis, IN 46202-3225; (317) 278-4792;  Individuals who require a reasonable accommodation in order to participate in the application process must notify Professor Magliocca a reasonable time in advance.

August 20, 2009 in Help Wanted | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 19, 2009

Mossoff on IP and the Administrative State

Adam Mossoff (George Mason) has posted The Use and Abuse of IP at the Birth of the Administrative State on SSRN.  Here's the abstract:

Courts and commentators have long maintained that intellectual property law and the administrative state developed as two separate legal regimes without any significant theoretical or practical contact between them, at least until recently. This standard historical story is mistaken. This article identifies a long-forgotten nexus between intellectual property law and the birth of the administrative state in the Progressive Era, and in doing so, offers at least two important insights. First, as a matter of intellectual history, it establishes that administrative law and modern intellectual property law share a common theoretical pedigree in legal realist scholarship about property in the Progressive Era. Second, and more important, this article exposes serious theoretical concerns about the success of this scholarship by Felix Cohen, Morris Cohen and others. In justifying the regulation of real property under the administrative state, the Cohens and others used intellectual property rights to advance a scathing conceptual and normative critique of the natural rights theory of property. This critique has now assumed the mantle of conventional wisdom in intellectual property law, as commentators and lawyers dismiss natural rights theory as theoretically incoherent and doctrinally indeterminate. But the legal realists’ attacked a strawman version of the natural rights theory of property, redefining its concept of “value” in unduly narrow economic terms such that it no longer resembled the same theory advanced by the natural rights philosophers or the American courts and commentators who applied their ideas in legal doctrine. This article explicates for the first time the actual premises of the legal realists’ critique of the natural rights theory of property, revealing how they failed to prove either the logical or normative incoherence of this longstanding conception of property. As such, this article exposes a fundamental lacuna in the theoretical foundations of the modern administrative state. Even more important, it challenges the misrepresentations and all-too-hasty dismissals of natural rights theory by intellectual property scholars today.

Ben Barros

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August 19, 2009 in Intellectual Property, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

PropertyProf Wanted @ Gonzaga

Gonzaga University School of Law seeks applicants for two tenure-track positions.  Areas of teaching need include, but are not limited to, Intellectual Property, Property, Constitutional Law, Criminal Law, Family Law, and Torts.    Applicants should have an outstanding academic record, law practice experience, and be committed to scholarship and teaching excellence.  The law school is strongly committed to diversifying its faculty and furthering Gonzaga’s mission as a Jesuit, Catholic and humanistic institution.  Gonzaga will be interviewing candidates at the AALS Faculty Recruitment Conference on November 6 and 7.  For additional information, contact Professor Gerry Hess, Chair, Faculty Recruitment Committee, Gonzaga University School of Law, P.O. Box 3528, Spokane, Washington 99220-3528, or contact Professor Hess by e-mail at

August 19, 2009 in Help Wanted | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 18, 2009

Call for Papers - 2010 AALS Property Section Mid-Year Meeting

TO:      Teachers and Members of the AALS Sections on Property, Land Use
           Planning, Natural Resources and Real Estate Transactions
FROM:   Planning Committee on 2010 Workshop on Property Law: What Do the 
            Mortgage Crisis and the Global Warming Crisis Tell Us About the
            Fundamentals of Property Law?:   
                 Vicki Been, New York University School of Law, Chair 
                 Eduardo Peñalver, Cornell Law School
                 Joseph W. Singer, Harvard Law School
                 Alfred C. Yen, Boston College Law School 
Request for Proposals
We are seeking proposals for two different types of presentations of works in progress on property law. 
We are planning the AALS 2010 Mid-Year Meeting Workshop on Property: What do the Mortgage Crisis and the Global Warming Crisis Tell Us About the Fundamentals of Property Law? The Workshop will be held on June 10-11, 2010 at the Sheraton New York in New York City. The Workshop will use the mortgage and housing crisis, as well as the global warming crisis, as lens to explore how recent scholarship on normative theories of property, the burgeoning work on behavioral law and economics, current research on risk regulation, scholarship on race, class and inequality, and recent developments in political economy can advance our understanding of, and approach to teaching about, key issues in property law. While the workshop will feature a variety of panels on those issues, we also would like to offer breakout sessions to feature works in progress, especially by junior scholars. Nestor Davidson and Ben Barros, who have organized a Property Works-in-Progress Conference for the last few years, are likely to take a break for 2010, so we view these breakout sessions as filling the gap left by that break. We will offer two types of breakout sessions - the first will feature works-in-progress that are completed drafts that are ready or nearly ready for submission to journals. We expect each session to feature up to three 15-minute presentations by different scholars, followed by questions from the moderator and the audience. The second will allow scholars to present very early ideas for papers in five to eight minutes, and get feedback from the audience about the viability of the topic and suggestions for useful resources.    
Our first priority for works-in-progress that are substantially complete will be for topics that will further the themes of the conference by focusing on some aspect of what the housing and mortgage crisis or global warming crisis tell us about property law or about teaching property. But we will leave room as well for junior scholars to present works in progress on other topics, in the spirit of the Property Works-in-Progress conference. Our goal is to feature promising emerging scholarship regardless of its fit with our overall themes. For the very early works in progress roundtables, our goal is simply to expose junior scholars to helpful feedback, so there will be no subject matter preferences. 
Interested faculty should submit a brief (no more than 500 words) written description of the proposed presentation, along with their resume. Please submit these materials by e-mail to by October 30, 2009. Selected speakers will hear from us by December 15, 2009.
Those selected must register for the Workshop and pay the registration fee, and are responsible for their own travel and other expenses. Please direct questions to Professor Vicki Been at New York University School of Law,

August 18, 2009 in Conferences | Permalink | Comments (0) | TrackBack (0)

Lee Fennell's The Unbounded Home

9780300122442 Yale University Press has just released Lee Fennell's book The Unbounded Home.  Here's the publisher's description:

The Unbounded Home grapples with a core metropolitan reality -- that the value and meaning of a home extend beyond its property lines to schools, shops, parks, services, transportation, neighbors, neighborhood aesthetics, and even market conditions. Lee Anne Fennell unpacks the resulting tension between the homeowner’s desire for personal autonomy at home and the impulse to control what happens in surrounding areas to safeguard the home’s value.


The stakes are high; this conundrum carries implications for nearly every facet of residential life, including the many neighborhoods in the United States that are segregated by race and social class. Fennell shows how a new understanding of homeownership and  innovations that increase the flexibility of property law can address critical issues of neighborhood control and community composition that have been simmering unresolved for decades.

I've read the book, and it is fantastic.  It is a must-read for anyone interested in (among other things) land use and local government issues.


Ben Barros


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August 18, 2009 in Books, Land Use, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (1)

Saxer on RLUIPA's Application to Building Codes and Aesthetic Regulation

Shelley Ross Saxer (Pepperdine) has posted Assessing RLUIPA's Application to Building Codes and Aesthetic Land Use Regulation on SSRN.  Here's the abstract:

This article presents the author’s argument that building codes and aesthetic or historical land use regulations should be subject to scrutiny under the Religious Land Use and Institutionalized Persons Act (RLUIPA). This scrutiny would serve to further the intent of RLUIPA to protect the religious exercise of churches and synagogues against government discrimination in zoning codes and land use regulation, both for established and non-established religious denominations. This scrutiny also ensures that RLUIPA is construed broadly, as was Congress’s intent, to maximize federal constitutional protection of the free exercise of religion. Judicial application of RLUIPA has been varied: while some courts have applied RLUIPA to any local land use regulation impacting religious exercise, others have applied RLUIPA only if there appears to be actual discrimination occurring in the land use regulations scheme. Building codes, as well as aesthetic and historical regulations, are generally designed to ensure that buildings are safe, habitable and appropriate for the community environment, and they may be facially neutral. However, the author argues that they should be closely scrutinized under constitutional principles or RLUIPA guidelines when they are individually applied to burden the fundamental right of free exercise of religion, because arbitrary or discriminatory decision-making cannot be allowed to hide behind the facial neutrality of these codes and regulations.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

August 18, 2009 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Katz on Adverse Possession

Larissa M. Katz (Queen's University Ontario) has posted The Moral Paradox of Adverse Possession: Sovereignty and Revolution in Property Law on SSRN.  Here's the abstract:

On what grounds can we justify the transformation of squatters into owners? To understand the moral significance of adverse possession, we need to begin with the proper analogy. Much of the moral analysis of adverse possession has proceeded on the basis that adverse possessors are land-thieves. I will begin here by explaining why the analogy of adverse possessor to land-thief is misleading. Following that, I will argue that there is a much closer analogy between adverse possession and revolution or, more precisely, a bloodless coup d’ état. The recognition of the adverse possessor’s (private) authority solves the moral problem created by an agenda-less object just as the recognition of the existing government’s (public) authority, whatever its origin, solves the moral problem of a state-less people. The morality of adverse possession, seen this way, does not turn on any particularized evaluation of the squatter’s deserts or her uses of the land. I am thus not proposing that adverse possession is justified in the same way that some argue a conscientious revolutionary is justified in resisting an oppressive or otherwise unjust sovereign. Rather, the morality of adverse possession is found where we might least expect it, in its positivist strategy of ratifying the claims to authority of a squatter without regard to the substantive merits of her agenda or her personal virtue.

Ben Barros

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August 18, 2009 in Recent Scholarship | Permalink | Comments (1) | TrackBack (0)