Thursday, January 27, 2011
I teach a lot of M&F crisis -- or at least I think I do. Property is (for the time being, at least) a two-semester, 6-credit odyssey at William Mitchell, so I have time I can devote to the crisis, and I seem to be spending more and more time on it. This semester, we'll devote close to 3 weeks to mortgages, foreclosures and evictions, as the conclusion of our section on real estate transactions.
It seems to me that the M&F crisis is the property law issue of the day, and we'd be remiss in not adding it to the property law curriculum. The students obviously know it's out there and are very curious. It's relevant, timely, compelling and a great teaching tool.
The problem is that for those of us whose background isn't in the mortgage and housing-finance industry, there's a lot to learn, and it can be difficult to find good class materials. I'm learning, and slowing piecing together some good usable materials (a case here, a primer there, a newspaper article there, etc.), and would be happy to share if anyone is interested.
I teach it in several pieces:
(1) what a mortgage is; the history of the secondary and tertiary mortgage markets in the U.S.; the mortgage-backed securities crisis;
(3) the foreclosure process generally;
(4) the current foreclosure crisis, and flaws in foreclosure proceedings; and
I've also been linking up with Mitchell's Community Development Clinic (run by Professor Diane Dube, resident adjunct extraordinaire), bringing people from the clinic into the classroom, and sending interested students into the clinic, and through the clinic into local public interest groups working on the front lines of the crisis. It's an opportunity for them to do good work, in both senses. And in addition to the obvious benefit of some practical experience for the students, it's my hope that some can find work in foreclosure law after graduating -- sadly, one of the very few growth areas for the legal profession at the moment.
I'd love to hear your ideas on how, and how much, to teach about the crisis.
Mark A. Edwards
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The ‘hot news’ doctrine refers to a cause of action for the misappropriation of time-sensitive factual information that state laws today afford purveyors of news against free riding by a direct competitor. Entirely the offshoot of the Supreme Court’s 1918 decision in International News Service v. Associated Press, the doctrine enables an information gatherer to prevent a competitor from free riding on its efforts at collecting and distributing timely information. While the doctrine lay dormant for decades, the last few years have seen a renewed interest in its utility, given the financial difficulties of the newspaper industry. News gatherers of different kinds have begun using the doctrine with increased frequency, in the belief that it creates and protects an ownership interest in news, a right that they might be able to leverage to create a licensing market for the use of news that they collect. This Article argues that this belief misapprehends the basis for the hot news doctrine. As a doctrine that originates in the synthesis of two different areas of the common law, unfair competition and unjust enrichment, hot news is concerned principally with solving a collective action problem in the market for news gathering. Recognizing that news gathering involves enormous expenditures on the part of newspapers, it attempts to preserve the incentives of individual competitors to enter into cooperative newsgathering and sharing arrangements that raise their individual and collective profitability, while simultaneously maintaining the common pool (i.e., public domain) nature of factual news. Thus, it attempts to maintain a competitive equilibrium among news gatherers through a gain-based liability framework and, in the process, emphasizes a very different distributive baseline from that inherent in the idea of property in news. Appreciating this difference and its significance is crucial to the doctrine’s continuing survival and sheds light on its inherent unsuitability as a mechanism by which to "reinvent" or "save" newspaper journalism, as some claim it will.
Wednesday, January 26, 2011
Snagging an idea from Lawrence Cunningham's post on Contracts casebooks, I decided to check out the Amazon sales of leading property textbooks. According to Amazon, these are the 10 most popular Property books (and their rank in total Amazon book sales - that includes all books sold on the site):
1. Dukeminier, Krier, Alexander, Schill (4,880)
2. Merrill & Smith (6,295)
3. Singer (40,018)
4. Sprankling & Coletta (120,134)
5. Kurtz & Hovenkamp (179,568)
6. Nelson, Stoebuck, Whitman (192,986)
7. Donahue, Kauper, Martin (200,028)
8. Cribbet, Findley, Smith (268,434)
9. Rabin, Kwall, Kwall (275,789)
10. Casner, Leach, French (298,704)
A found a few things here pretty surprising. First, I'm a little shocked that the Merrill & Smith has become so popular. I don't mean to imply that it's not a good or erudite text - it most certainly is. However, I would have guessed that its deeply theoretical bent would have curtailed its spread beyond the very top schools. Second, the success of both the Merrill & Smith (first published in 2007) and the Sprankling & Coletta (first published in 2009) seems to indicate that there's a hunger for new voices in the property textbook market.
I'll also use this post to highlight the debate between Cunningham and Bainbridge over what makes a "good" textbook. Bainbridge argues that the success of his Corporations textbook comes from it's exhaustive teacher's manuel and the textbook's "lean and mean" take on the subject. Cunningham, in contrast, likes a book packed with "notes, questions and comments, scholarly excerpts, problems, statutory and restatement selections, interdisciplinary perspectives and more." I think I side with Bainbridge on these issues - I'm not sure students get much out of the extras and I think that stuff works to drive up the price of textbooks. Thoughts on any of this?
UPDATE: Looking at the data again, I think this list almost certainly undersells the popularity of the Dukeminier casebook. As the post indicates, the newest edition (7th) is the number one book in the field. However, I overlooked that the 6th addition would currently rank as the fourth most sold Property textbook. Combining the 6th and 7th addition sales would likely show that Dukeminier leads the field by a much wider gap than the post indicates.
[Comments are held for approval, so there will be some delay in posting]
Tuesday, January 25, 2011
The Wall Street Journal has an article today regarding an upswing in foreclosure actions against religious groups. I don't think I can link to it since it is in a part of WSJ.com that is subscription only, but the article is entitled "Churches Find End Is Nigh: The Number of Religious Facilities Unable to Pay Their Mortgage Is Surging," by Shelley Banjo.
The article makes a few interesting points, including that lenders were eager to make loans to religious congregations for two reasons -- (1) the weekly contributions and (2) the willingness of pastors (or other religious leaders) to put their own money into the project in order to avert foreclosure, even though they had no contractual obligation to do so. I would have thought that religious congregations would have found it difficult to get a loan because of the lack of contractual income (rent) and difficulty of adapting a religious building to an income-producing, commercial use. If I were a lender, I wouldn't want to foreclose a religious building because I would assume that even in good times there would be a limited market. Plus, by foreclosing on God, you earn a lot of bad press.
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Over at the Faculty Lounge, Dan Filler announces the publication of a symposium that will be of interest to many property profs. He writes:
I'm very proud to say that the Drexel Law Review has published a particularly interesting and in depth symposium, Business Improvement Districts and the Evolution of Urban Governance. The symposium, which was held here at Drexel last year, includes commentary from several major players in the field: Richard Briffault (Columbia), Nicole Stelle Garnett (Notre Dame), Gerry Frug (Harvard), and Richard Schragger (Virginia). It also features sixteen case studies of different Philadelphia BIDS.
I'm particularly pleased with this symposium because it weaves together the macro perspective of these national scholars with a micro study of one city. This, it seems to me, is a project that offers long-term value to both scholars and policy makers.