Friday, August 19, 2011
Land Use Blog maestro, Matt Festa, passes along the following bit of hiring news:
South Texas College of Law invites applications from both experienced and entry-level faculty for one or more full-time, tenure-track positions beginning in the 2012 - 2013 academic year. While all candidates will be considered, we particularly seek candidates interested in teaching the required property courses, and commercial law (including courses covering the Uniform Commercial Code). Other areas of interest include real estate development and finance, and international law. We seek candidates with outstanding academic records who are committed to both excellence in teaching and sustained scholarly achievement. Members of minority groups and others whose backgrounds will contribute to the diversity of the faculty are especially encouraged to apply.
South Texas College of Law provides a diverse body of students with the opportunity to obtain an exceptional legal education, preparing graduates to serve their community and the profession with distinction. The school, located in downtown Houston, was founded in 1923 and is the oldest law school in the city. South Texas is a private, nonprofit, independent law school, fully accredited by the American Bar Association and a member of the Association of American Law Schools, with 55 full-time and 40 adjunct professors serving a student body of 1,300 full and part-time students. South Texas is home to the most decorated advocacy program in the U.S. and the nationally recognized Frank Evans Center for Conflict Resolution.
Please send letters of interest and resumes to:
Professor Kevin Yamamoto
Chair, Faculty Appointments Committee
South Texas College of Law
1303 San Jacinto Street
Houston TX 77002
Tel: (713) 646-2945
From the Pop-Up City Blog: "It’s officially called a ‘transfer accelerator’ by Dutch railway maintenance company ProRail, but everyone else would say it’s a slide. An awesome slide. Installed next to a stairway at the newly renovated railway station Overvecht in the city of Utrecht, the slide offers travellers the opportunity to quickly reach the railway tracks when they’re in a hurry. But above all, the slide is a great instrument to make the city more playful."
(HT: Jennifer Bird-Pollan)
This summer, as part of what turned out to be my ridiculously ambitious agenda, I enrolled in a 14-week online certificate program at Boston University in Genealogical Research. I have been involved in genealogy for nearly 20 years, but I’m entirely self-taught. So I thought this would be a good opportunity to learn research skills and methodologies from people at the top of the profession. It was a great course, and I learned a lot, but it ended up taking much more time than I anticipated. (Because, of course, I wanted to earn an A!)
I mention this course here because the work required me, again and again, to delve into the history of American real property law. In doing so, I wrote notes to add to my Property lectures on topics such as women’s evolving relationship with real property under the law, and the customs of various ethnic groups in conveying their real property to children (patrilineal or by shares). We also looked at topics that turned out to be about land use – early land development and division schemes, the development of ethnic neighborhoods, etc. So while I thought that this summer course would be a fun diversion, it turned out in many respects to be an enrichment course for my own work in property.
If you are interested in taking a look at property from a genealogist’s perspective, I would recommend E. Wade Hone’s Land & Property Research (Salt Lake City: Ancestry Incorporated, 1997). The book walks through the historical background on Spanish, British, French, and Mexican possession of portions of the modern United States, the methods of property ownership under those regimes, and the records created. Then it discusses the organization of state lands and federal lands, and the methods that the U.S. government has used to distribute land since the Revolution. This background is incredibly helpful, particularly to understanding the historical context of some of our older property cases. (For example, the railroad right of way abandonment cases.)
Last year, when we talked about deeds in class, I showed students a modern deed. I’m not going to turn my Property course into a History of Property course, but next year I will also show them a 19th century deed so they can see that the formal language really hasn’t changed all that much! (If you want a 19th century deed too, but don't have one lying around, just click the thumbnail image above and you can download the full size image.)
Michael Blumm (Lewis & Clark) has posted Why Aboriginal Title is a Fee Simple Absolute (Lewis & Clark Law Review) on SSRN. Here's the abstract:
The Supreme Court’s 1823 decision in Johnson v. M’Intosh is a foundation case in both Indian Law and American Property Law. But the case is one of the most misunderstood decisions in Anglo-American law. Often cited for the propositions of the plenary power of the U.S. Congress over Indian tribes and the uncompensated takings of Indian title lands, the Marshall Court decision actually is better interpreted to recognize that Indian tribes had fee simple absolute to their ancestral lands. This article explains why the "discovery doctrine” should have been interpreted to be a fee simple absolute subject to the federal government’s right of preemption. Had the doctrinel laid down by Johnson been properly interpreted, its national and international effects today would have been much less pernicious.
Thursday, August 18, 2011
Slaves were the principal form of wealth in the South--indeed in the nation as a whole. The market value of the four million slaves in 1860 was close to $3 billion--more than the value of land, of cotton, or of anything else in the slave states, and more than the amount of capital invested in manufacturing and railroads combined for the whole United States. Slave labor made it possible for the American South to grow three-quarters of the world's marketed cotton, which in turn constituted more than half of all American exports in the antebellum era.
A new biography of Ethan Allen shines a light on the role of land speculation in the American Revolution. Slate's François Furstenberg writes:
Just how these contests over land play into the Revolution is one of the most debated questions in American history. In 1909, historian Carl Becker argued that the American Revolution was not so much about home rule as "who should rule at home." The struggle for independence, in other words, centered less on exalted principles than on the quest for political and economic power by provincial elites. Popular among muckraking classes during the age of Robber Barons, this interpretation was hard to reconcile with a patriotic account of the nation's founding and eventually fell out of favor.
Wednesday, August 17, 2011
Last year, I taught Property for the first time. I used the Sprankling/Coletta casebook, which I found easy to teach and my students found easy to understand. I supplemented the casebook with materials and exercises drawn from my 10 years of real estate practice. When I received my evaluations at the end of the semester, the students’ refrain was that they appreciated my attempt to mix doctrine, theory, and real world application. My goal, which, based on their exam performance, I think I accomplished, was not to replace doctrine and theory with practice problems, but to use real world problems to illuminate the doctrine and help them see Property as I do – as an endlessly fascinating area of the law.
One weakness of my approach last year was that it was fairly haphazard. I came up with “brilliant” ideas of how to illustrate a particular principle a few days or the night before class. I pulled forms or example documents from my library or from the Internet, and then tried at the last minute to weave those examples in to my plans for class. As a result, I hadn’t had time to fully think about the best way to utilize those materials.
So one of my big projects this summer has been to organize and refine the exercises I used last year, and to add new exercises. Before I teach again in the Spring, I will have an electronic casebook supplement to distribute to my class, which will have exercises for every major subject we talk about in class. Some are simply real world hypos where the student is asked to advise a client on their legal options. (Last year, they had several opportunities to write a short memo about a problem and e-mail it to me. I made quick comments and handed them back.) Many of the hypos are based on real cases, so after working through the problem, students can be told how that case was actually resolved. Two exercises that I’m still working on, but I think are most promising, involve zoning and the sale of a home.
For the zoning exercise, students will be asked to represent a homeowner in a community with fairly restrictive zoning. The client’s home was built prior to the zoning and therefore grandfathered in. But sadly, there was a fire. The client obtains a building permit and then begins to rebuild the same house. The neighbors seek an injunction. The students are given the relevant sections of the zoning code and asked to advise their client on the best course of action. What can he do? What should he do?
For the home sale exercise, they will represent a seller of a home and be asked to read and comment on a contract prepared by the buyer on a standard form. Based on information provided to them about what their client wants to accomplish, they will be asked to assess risk and advise their client on a counteroffer.
I did two big exercises like this in class last year, one on the recording acts (which I discussed on the blog) and one involving residential leasing. Each of the big exercises take an entire class period. The hypos can be done outside of class. Although it represents a significant investment of time, I think its worth it.
When I’m finished with the supplement, I’ll be happy to share it with anyone who is interested in looking at it or using some of the exercises in class. The only catch is that you have to give me feedback to make it better!
Friend of the blog, Rebecca Tushnet, has alerted me that Patrick Stump's song "The City," which includes a lyric about gentrification is available for free on iTunes (limited time only!). As this blog has highlighted from time to time, there are a handful of other songs out there with property themes. Take for example, Signs, made famous by Tesla:
And the sign said anybody caught trespassing would be shot on sight.
So I jumped on the fence and yelled at the house, Hey! what gives you the right
To put up a fence to keep me out or to keep mother nature in.
If God was here, he'd tell you to your face, man you're some kinda sinner.
Alabama's Song of the South could be used to introduce mortgage foreclosure:
Well somebody told us wall street fell
But we were so poor that we couldn't tell.
Cotton was short and the weeds were tall
But Mr. Roosevelt's a gonna save us all.
Well momma got sick and daddy got down.
The county got the farm and they moved to town.
Pappa got a job with the TVA
He bought a washing machine and then a Chevrolet.
Well my idea of a good time
Is walkin’ my property line
And knowin’ the mud on my boots is mine.
Then, of course, there are a slew of songs about crummy landlords. In this category I've got Bob Dylan's Dear Landlord, The Police's Landlord, and Living Colour's Open Letter (To A Landlord). Worst use of "community property" in a song lyric probably goes to Steel Panter for a song so filthy that I can't even link to it on a family blog.
Have I missed any other classics? Does anybody out there use songs in class to spice things up? How does it work?
Avihay Dorfman (Tel Aviv) has posted The Society of Property on SSRN. Here's the abstract:
Property rights and duties, as it is often said, are good against the world, whereas contract rights and obligations apply more narrowly against specific others. The most basic question that arises in connection with this distinction is what accounts for the general scope that property rights and duties, unlike their contractual counterparts, share? Almost all the theories that have so far sought to address this question have emphasized the extrinsic circumstances - such as transaction costs or the normative priority of protecting property over contract rights. In that, these theories might be able to explain the general scope of application characteristic of property rights and duties, on the one hand, and the particular reach of contract rights and duties, on the other.
This starting point, however, implies the conclusion that property and contract rights and duties are, at best, quantitatively different, reflecting differences of degree, not of quality. More precisely, the source of the difference (whatever it is) does not originate in either property or contract, but rather lies outside both (for instance, in the costs of making and carrying out transactions concerning external objects).
Although this approach is perfectly sound as far as it goes, it does not go far enough. In particular, it fails to consider whether the general scope of property rights and duties is, in fact, a side effect of the special structure of property (vis-à-vis contract). Indeed, this possibility can be found once it is sought in the distinctive form of social coordination that property takes. On the account I shall develop, property is a framework of coordination in which participants approach the resolution of their competing claims (such as for use of and access to an object) together. In this way, property turns coordination itself into a form of respectful recognition among persons, quite apart from the functions it serves (such as promoting efficiency or sustaining freedom). This is, I argue, because the duties that arise in connection with a system of property take a categorically social form - that is, they can engender interactions of respect and recognition between persons simply in virtue of their being persons. Duties originating in a contractual interaction, by contrast, may (at best) take a hypothetically social form - that is, they may (arguably) establish relations of respect and recognition in which being a person as such is never sufficient for these relations to get going. This formal way of distinguishing between property and contract obligations lies at the center of the characterization of the duties in question that I shall pursue in these pages. Moreover, and perhaps more dramatically, this characterization provides the necessary normative resources to elaborate on their normativity - I shall argue that property, unlike contract, expresses the categorical value of regarding others as free and equal persons (at least in the sphere of action onto which property maps).
Tuesday, August 16, 2011
Joseph Singer (Harvard) has posted Subprime: Why a Free and Democratic Society Needs Law (Harvard Civil Rights-Civil Liberties Law Review) on SSRN:
It is common to view "the free market" and "government regulation" as opposites. This way of framing policy and legal questions suggests that regulation inevitably deprives us of freedom. But another word for "regulation" is "the rule of law." The opposition of markets and regulation makes it easy to forget that markets are defined by a legal framework that sets minimum standards for social and economic relationships.
We can better appreciate the legal framework of markets by remembering that regulation was needed to abolish feudal relationships, to prohibit relations of servitude, slavery, and racial inequality, and to spread access to property by redistributing property rights from lords to tenants and slave holders to slaves. Libertarian calls for deregulation fail to recognize the extent to which regulation was needed historically to create a society of free and equal persons with widely dispersed property ownership. Regulations are also needed to define property rights and to protect individuals from fraud and unfair or deceptive practices in market transactions. Libertarian ideals actually support a great deal of supposedly liberal legislation.
Further, Americans demand regulations that go far beyond those championed by libertarians, as evidenced by the consumer protection laws and myriad regulatory statutes in force in every state, as well as in federal law. Although Americans tend to talk like "small-government" libertarians, we legislate like liberals. Minimum standards regulations do not deprive us of freedom; rather, law promotes both freedom and democracy by outlawing social and economic relationships that are "subprime" because they fall below the minimum standards acceptable for human relationships in a free and democratic society. It is time we acknowledged the regulations we too often take for granted. If we do that, we can debate what those laws should be, rather than focusing on a false debate about whether they should exist at all.
Monday, August 15, 2011
Okay, I'm back. I will post about what I've been doing this summer that has kept me off PropertyProf Blog (not that its that terribly interesting) but the theme is that I was ridiculously overly ambitious. MASSIVE props to Steve Clowney for being a one-man blog this summer and covering up my incredible slackage.
In the meantime, following up on Steve's Burning House post (very cool site, by the way), I have been thinking a lot lately about the meaning of "home" and our emotional connection to real property.
Real property has enhanced importance in American common law because of the uniqueness doctrine, that is, the idea that all real property is unique and cannot be replaced. I've critized the uniqueness doctrine in the commercial real estate context, but it goes fairly unchallenged in the residential context. We have a romantic ideal of the family home (i.e. "every man's home is his castle"), and the law goes to some lengths to protect that value. Think about the differences between residential and commercial foreclosure processes, for example.
But does that romantic ideal match reality? In my fairly geographically stable life, I have lived in 5 houses in Indianapolis, 3 apartments in Indianapolis, 3 dorm rooms in Bloomington, Indiana, 2 apartments in Bloomington, Indiana, 1 apartment in Cambridge, Massachusetts, and 1 house in Winston-Salem, North Carolina. So that's 15 different "homes" in 37 years. Clearly I have far less emotional attachment to the dorm room I inhabited my freshman year of college than I do to the home that I lived in throughout elementary school, but which of these, if any, is my home?
My dad grew up in Richardson County, Nebraska, which currently has a population of about 10,000. He grew up in the same house that his dad grew up in. His grandmother lived next door. His grandparents and great-grandparents grew up down the road. The Marsh family and collateral families lived in Richardson County, within a few square miles of each other, from 1859 to 1995. That's a home. That land had a real emotional resonance to the family. All our people are buried there. When the common law talks abut the uniqueness of land, it had my family's Nebraska farms in mind.
But that is also a romantic ideal that was inconsistent with many peoples' reality. Before they settled in Nebraska, my Marshs traveled from New Jersey to Mason County, Kentucky, to Adams and Highland Counties, Ohio, to Lafayette County, Wisconsin, and to Missouri. They had a dozen farms in a dozen communities in three generations. Americans come from a long line of highly mobile people. We are (almost) all immigrants, after all.
My current hypothesis on all of this is that my "home" is where my immediate family (and the stuff that I'd carry out of a burning house) is located. If that home is important to me, it is because of the stuff and people contained there, not because of the real property itself. Oh sure, I might like the house and the neighborhood, but it is essentially a widget. Therefore, I am becoming highly suspicious of the uniqueness doctrine's applicability even to residential real estate.
I've thought about this topic a lot this summer because I've spent so much of it driving back and forth between Winston-Salem and Indianapolis. Every time I cross the border from Ohio or Kentucky into Indiana, I see the words "Back Home Again in Indiana." And that rings very true. But when I cross the border from Virginia to North Carolina, I think to myself "oh good, I'm almost home." So I think that the modern reality is that we can have more than one home, or that "home" is a broader concept than just a residence. "Home" is really about a community.
More on this and what it has to do with state residency statutes in a future post.
Mark Ireland (Hamline) has posted After the Storm: Asymmetrical Information, Game Theory, and an Examination of the 'Minnesota Model' for National Regulation of Mortgage Brokers and Tomorrow's Predatory Lenders (William Mitchell Law Review) on SSRN:
There is a general consensus that the root cause of the most recent turmoil in the domestic and global markets is due to a failure in our regulatory system. Yet, Congress has not supported comprehensive regulation related to the day-to-day activities of mortgage brokers and their relationship with consumers. This article identifies the three regulatory and legislative failures related to mortgage lending, and then examines these failures through the economic concepts of asymmetrical information and game theory. Specifically, how the regulatory failures resulted in mortgage brokers and lenders that were not acting in the best interest of homeowners or the future purchasers of securitized loans. Finally, this Article recommends adopting the “Minnesota Model” as a national framework for regulating mortgage lending. The Minnesota Model was an anti-predatory lending law passed in Minnesota in 2007.