PropertyProf Blog

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Univ. of Kentucky College of Law

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Saturday, July 17, 2010

Lehavi on Property Rights in an Era of Global Finance

Amnon Lehavi (Interdisciplinary Center Herzliyah - Radzyner School of Law) has posted Property Rights in an Era of Global Finance on SSRN.  Here's the abstract:

This chapter for the Encyclopedia of Financial Globalization studies the unique challenges of property rights in an era of global finance. It first defines the fundamental features of property, trying to bridge the gap that often exists between lawyers and economists in conceptualizing this term. The chapter then explains the local origins of property laws and the ways in which their traditional construct is being increasingly challenged by the forces of globalization. It surveys the prominent institutions and mechanisms that currently address the cross-border effects of property rights through supranational norm-making or other types of coordination among different national property systems. Finally, the chapter moves to a more resource-specific analysis of the challenges of property rules in a globalized era. It assesses how the ordering of property rights in land, chattels, intangibles, and intellectual property can be better adapted to a rapidly-changing global financial environment.

Ben Barros

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July 17, 2010 in Law & Economics, Property Theory, Real Estate Finance, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Farber on Owning Up to the Environment

Daniel A. Farber (UC Berekely) has posted Owning Up to the Environment on SSRN.  Here's the abstract:

This essay argues that, rather than being a constitutional bulwark against environmental regulation, certain kinds of property rights can actually ease constitutional barriers created by current Supreme Court doctrine. These environmental property rights (EPRs) are either rights to prevent environmental degradation (such as conservation easements) or limited rights to impair the environment (such as tradable pollution permits.) Among other possible benefits, these property rights may help nudge constitutional law in a more environmentally friendly direction in the areas of standing, takings, and the federal commerce power.

Ben Barros

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July 17, 2010 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Friday, July 16, 2010

Christie on Beachfront Property

Donna R. Christie (Florida State) has posted Of Beaches, Boundaries and SOBs on SSRN.  Here's the abstract:

As sandy beach property has become more scarce and more expensive, the controversies between upland owners and public users of the beach have increased. The public has an absolute right under the public trust doctrine to use the beach below the mean high water line (MHWL) boundary that defines the limits of state lands and littoral ownership, but “knowing” where that ambulating line is at any given time is virtually impossible. This uncertainty exacerbates the tensions that in Florida are leading to clashes between private land owners and the public. Setting a fixed boundary would lead to more certainty and consequently less controversy, but both legal and policy issue arise concerning this approach. In once instance, however – setting a fixed boundary between upland owners and submerged, public trust lands for purposes of government restoration of critically eroding beaches – a fixed boundary with appropriate protections for littoral owners seems to address problems of certainty, as well as legal and policy concerns. The Florida Beach and Shore Preservation Act’s (BSPA) use of this approach has been challenged in the Florida Supreme Court and subsequently in the U.S. Supreme Court in Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl. Protection. This article explores public and private interests in beaches and shores, and how the complexities of coastal boundaries contribute to controversies about the use of beaches. The article then looks at how the BSPA attempts to protect both the private and public interests in the coast through, among other provisions, establishing a fixed boundary for restored beaches. Finally, the challenges confronting Florida’s beach management that have arisen as a result of suits in the Florida Supreme Court and now in the U.S. Supreme Court are analyzed.

Ben Barros

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July 16, 2010 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Hauser on Home Mortgage Modification in Bankruptcy

Susan E. Hauser (North Carolina Central University - School of Law) has posted Cutting the Gordian Knot: The Case for Allowing Modification of Home Mortgages in Bankruptcy on SSRN.  Here's the abstract:

More than 5 million mortgages have gone into foreclosure since 2007, and an additional 8 to 13 million foreclosures are projected to follow before the current foreclosure crisis abates. Voluntary loan modification programs have failed to ameliorate the crisis, in large part because mortgage lending abuses and declining home values have left many borrowers stranded in "under-water" mortgages.

This article endorses a targeted amendment to section 1322(b)(2) of the Bankruptcy Code that would allow bankruptcy judges to oversee the modification of residential mortgages written to borrowers during years when mortgage-lending abuses were most rampant. Part I of this Article examines existing Bankruptcy Code provisions that allow the modification of other types of loans and then traces the history of the existing statutory and case law that currently prevents borrowers from modifying the terms of most residential mortgages in bankruptcy. Part II describes legislation presently pending in Congress and explains why allowing home mortgages to be modified in chapter 13 bankruptcy offers an efficient and fair solution that not only allows borrowers to remain in their homes, but also benefits lenders and taxpayers. Part III considers and distinguishes the counterarguments offered by the mortgage banking industry.

My conclusion is that allowing mortgages to be modified in chapter 13 plans offers distinct advantages to all parties. Accordingly, a time-limited amendment to section 1322(b)(2) would provide a simple and elegant mechanism for reducing the pain that the home mortgage crisis is causing to borrowers, communities, creditors, and the national economy.

Ben Barros

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July 16, 2010 in Mortgage Crisis, Real Estate Finance, Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, July 15, 2010

Saxer on Property Rights in Water.

Shelley Ross Saxer (Pepperdine) has posted The Fluid Nature of Property Rights in Water on SSRN.  Pun presumably intended.  Here's the abstract:

In this article, Professor Saxer discusses how the understanding of private and public rights in water influences the efficient allocation of this essential resource. Property rights to surface water, ground water, and rain water are explored and evaluated using the traditional comparison to the land-based “bundle of rights” metaphor. However, Professor Saxer concludes that this metaphor is inappropriate when applied to a resource such as water, which is constantly changing in form, quantity, and location and is difficult to exclusively possess. Rather, she argues that water rights should be viewed as a communal resource subject to state ownership under the public trust doctrine, with private rights allocated through government contracts granting revocable licenses to use.

Ben Barros

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July 15, 2010 in Natural Resources, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Rose on Liberty, Property, Environmentalism

Carol M. Rose (Arizona) has posted Liberty, Property, Environmentalism on SSRN.  Here's the abstract:

The environment has often been thought to consist of resources that are unowned, and hence subject to the well-known tragedy of the commons. But in recent years, property ideas have been increasingly recruited for environmental protection, in a manner that appears to vindicate the view that property rights evolve along with the needs for resource management. Nevertheless, property regimes have some pitfalls for environmental resources: the relevant parties may not be able to come to agreement; property regimes may be weak or ineffective; they may be aimed at purposes inconsistent with environmental protection; property rights definitions may not work well for environmental resources; modern property regimes may promote monoculture rather than diverse environments. This essay describes these problems and asks to what degree they apply to a new effort to use property rights approaches, namely cap-and-trade programs to control greenhouse gases. It concludes that property rights, while imperfect and something of a retreat from a regime of complete liberty, may offer gains for environmental protection. But success will depend on close attention to the accountability and effectiveness of the governmental institutions necessary to support environmental property regimes.

Ben Barros

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

July 15, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 14, 2010

Notions of Property and Citizenship in New Haven Colony, 1639

I spent the morning reading through the Records of The New Haven Colony and Plantation from 1638 to 1649, as copied and published in 1857.  Really interesting stuff touching on early colonial notions of land and ownership.

For example, a General Court on the 4th of January, 1639 wrote [note, I modernized the spelling for ease of reading]:

"It is agreed by the towne and accordingly ordered by the court that the Neck shall be planted or sown for the term of seven years, and that John Brockett shall go about laying it out forthwith, and all differences between party and party about ground formerly broke up and planted by English then shall be arbitrated by indifferent men which shall be chosen to that end."  [page 26]

further...

"It is ordered that no planter or planters shall make purchase of any lands or plantation from the Indians or others for their own private use or advantage, but in the name and for the use of the whole plantation." [page 27]

I'm interested about how long this idea of community property lasted and how widespread it was among the colonies.  I note that elsewhere in the Records it is made clear that not all planters are equal.  Some were given vast holdings of land and others were given an acre and a half.  The "owners" were clearly more akin to renters, with the court solemnizing transfers between family members and third parties.  More on the colonial history of land ownership later, if readers are interested.

Although not really property-related, I wanted to share the "Free Man's Charge" from 1639 because I was struck by how consistent it is with modern concepts of citizenship [note: I did not modernize the spelling to give you the flavor of the book]:

"Yow shall neither plott, practice nor consent to any evill or hurt against this Jurisdiction, or any pte of it, or against the civill gouerment here established.  And if you shall know any pson, or psons with intend, plott, or conspire any thing wch tends to the hurt or prejudice of the same, yow shall timely discouer the same to lawfull authority here established, and yow shall assist and bee helpfull in all the affaires of the Jurisdiction, and by all meanes shall promove the publique wellfare of the same, according to yor place, ability, and opptunity, yow shall give due honnor to the lawfull magistrats, and shall be obedient and subject to all the wholesome laws and orderes, allready made, or wch shall be hereafter made, by lawfull authority afforesaid.  And that both in yor pson and estate: and when yow shall be duely called to give yor vote or suffrage in any election, or touching any other matter, wch concerneth this common wealth, yow shall give it as in yor conscience yow shall judg may conduce to the best good of the same."  [page 19]

"You . . . by all means shall promote the public welfare ... according to your place, ability, and opportunity."  The expectations of American civil society, circa 1639.  Good stuff.

Tanya Marsh

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July 14, 2010 in Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 13, 2010

University of Cincinnati Seeks PropertyProf

The University of Cincinnati College of Law invites applications from entry-level and lateral candidates for as many as two tenure-track or tenured faculty positions in a broad number of areas, including agency/partnership/unincorporated business associations,  civil procedure, commercial law, corporations, criminal law, criminal procedure, employment and labor law, evidence, immigration, international law, property, torts, and wills and trusts.  We also seek applications for visiting faculty positions in those areas.  All applicants should have a distinguished academic background and either great promise or a record of excellence in both scholarship and teaching. The University of Cincinnati is committed to a diverse faculty, staff, and student body.  We encourage applications from women, people of color, persons with disabilities, and others whose background, experience, and viewpoints would contribute to the diversity of our faculty. Contact:  Professor Verna L. Williams, Chair, Faculty Appointments Committee; University of Cincinnati College of Law; P.O. Box 210040; Cincinnati, OH 45221-0040, verna.williams@uc.edu

July 13, 2010 in Help Wanted | Permalink | Comments (0) | TrackBack (0)