Friday, February 3, 2012

9th Circuit on the FHA and Roomates

In an opinion by Judge Kozinski, no less.  The case presented the vexing problem of whether a discriminatory preference in an ad for a roommate violated the FHA.  The problem, of course, is that the Mrs. Murphy exemption does not apply to the prohibition on discriminatory advertisements in Section 3604(c).  Held - the FHA does not apply to roommates, in part because of constitutional concerns about freedom to choose personal living arrangements.

H/T Eugene Volokh.

Ben Barros

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

February 3, 2012 | Permalink | Comments (0) | TrackBack (0)

Ziff on the History of Caves and Property Rights Under the Earth

Bruce Ziff (Alberta) has posted The Great Onyx Cave Cases -- a Micro-History on SSRN.  Here's the abstract:

Controversies surrounding property rights to the Great Onyx Cave in Kentucky have given rise to two legendary decisions with enduring legal importance. The first of these, Edwards v. Sims (1929), is a leading authority on the extent of ownership rights below the surface of land. The second, Edwards v. Lee's Administrator (1936), concerns the appropriate measure of damages for trespass. Stripped to essentials, the facts that led to these two important rulings are quite straightforward: E discovered a cave beneath his surface, which he developed into a thriving tourist attraction. However, it turns out that approximately one-third of the cave passes below, well below, the surface of land owned by L, who had no ready means of access to the cave. Should title to the cave as a whole belong to the party who owns the mouth and who has taken possession? If not, how might one assess damages for trespass where E has benefited financially by the acts of trespass, but L has no practical use for his portion of the cave?

Of course, life is rarely as simple as that suggested by these sparse facts, and if one delves into the background of these famous cases -- a story that has been neglected over the years -- additional insights emerge. As it turns out, this dispute is one episode in a tempestuous time, the so-called 'cave wars' period, in which confrontations and lawsuits over cave rights and tourism in the region were commonplace. Moreover, the fight over Great Onyx Cave arose amid a campaign to acquire the caves in the region for a national park. As the clouds of the Depression formed, the park project must have held out hope for the local landowners. In addition, one member of the Kentucky Court of Appeals, Marvel Mills Logan, played a significant and somewhat unconventional role in the Great Onyx Cave litigation and the events surrounding it. His place in the story is examined in detail.

Steve Clowney

February 3, 2012 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

The Delicate Art of Helping Tourists Navigate Cities

Picture 3

The Atlantic runs an article on "Urban Wayfinding," the process of making signs and other visual clues to help outsiders get around dense urban centers:

“It’s like IKEAs,” Labouvie says. “Part of it is they want you to get lost, because then you can find out what you want, or what you don’t want, but then they always give you cues to getting back to the main path."

Steve Clowney

February 3, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 2, 2012

Freddie Mac Bets Against Homeowners

An NPR story from this week details how Freddie Mac was betting against the very homeowners it was intedned to help:

[P]ublic documents show that in 2010 and 2011, Freddie Mac set out to make gains for its own investment portfolio by using complex mortgage securities that brought in more money for Freddie Mac when homeowners in higher interest-rate loans were unable to qualify for a refinancing.

Those trades "put them squarely against the homeowner," PIMCO's Simon says.

Freddie Mac's trades came at a time when mortgage rates were falling to record lows. Millions of homeowners wish they could refinance, but their lenders tell them they can't qualify for today's low rates because of tight rules. Freddie Mac is one of the gatekeepers with the power to set those rules, and lately, it has been saying no more often to homeowners.

Steve Clowney

February 2, 2012 | Permalink | Comments (2) | TrackBack (0)

Call For Papers: Urban Agriculture

Cleveland-Marshall College of Law seeks proposals for presentations at Urban Agriculture: It’s Not an Oxymoron, Policies for Cultivating City Land and Increasing Access to Local Food, a symposium on law and policy issues connected to urban agriculture, land use, and the local food movement.

This symposium will explore the laws and policies that cities have implemented to increase local food production and access to local food.  It will also address some of the benefits and challenges of implementing these policies.  Finally, it will address the need to strengthen the urban, suburban, and rural food connection to move towards more sustainable and reliable local food production.  All papers concerning these or related issues are welcome.  

The symposium will take place in Cleveland, Ohio on April 20, 2012.  C|M|LAW invites academics, practitioners, policymakers, and others to submit presentations or scholarly papers on related topics.  A proposal for your paper or presentation, of no more than three pages, should be sent to Jaime Bouvier at by March 1, 2012 or submitted via the link below.  Please direct inquiries to Heidi Gorovitz Robertsonat

For more information about the symposium, please visit C|M|Law’s website.

Steve Clowney


February 2, 2012 | Permalink | Comments (0) | TrackBack (0)

Sawers on The Right to Exclude after Emancipation

Brian Sawers (Maryland VAP) has posted The Right to Exclude after Emancipation: A Quantitative Study on SSRN.  Here's the abstract:

During the nineteenth century, the landowner’s right to exclude expanded while the public’s rights contracted. Landowners gained the right to exclude roaming livestock and wandering hunters with the closing of the open range. In theory, expanding the autonomy of private owners allows them to make more efficient use of their land. Empirical validation, however, is limited since only a handful of studies have examined the closing of the range. In the South, the first counties to close with those with the largest black populations. If the range remained open, blacks could graze their animals, hunt, fish, and forage on the open range; if the range were closed, blacks would have no alternative to sharecropping. This Article examines the closing of the range and restrictions on hunting in the postwar South using previously unexamined data. Preliminary results suggest that labor control, not economic efficiency, motivated the closing of the range.

Steve Clowney

February 2, 2012 | Permalink | Comments (0) | TrackBack (0)

Recent SSRN Downloads


In honor of the beginning of the month, here are the most downloaded property papers on SSRN over the last 60 days:


1.  [452 downloads] Property Title Trouble in Non-Judicial Foreclosure States: The Ibanez Time Bomb?  
     Elizabeth Renuart (Albany)

2.  [137 downloads] A Bundle Theorist Holds On to His Collection of Sticks
     Stephen R. Munzer (UCLA)

3.  [134 downloads] Lumpy Property
     Lee Anne Fennell (Chicago)

4.  [132 downloads] Wills for Everyone: Helping Individuals Opt Out of Intestacy
     Reid K. Weisbord (Rutgers Newark)

5.  [113 downloads] Pluralism and Property
     Gregory S. Alexander (Cornell)

6.  [108 downloads] Two Cheers for the Bundle-of-Sticks Metaphor, Three Cheers for Merrill and Smith
     Robert C. Ellickson (Yale)

7.  [95 downloads] Saving Locke from Marx: The Labor Theory of Value in Intellectual Property Theory
     Adam Mossoff (George Mason)

8.  [66 downloads] Notice Failure and Notice Externalities
     Peter S. Menell (Berkeley) & Michael J. Meurer (Boston U.)

9.  [60 downloads] Book Review: Edward L. Glaeser, Triumph of The City: How Our Greatest Invention Makes Us Richer, Smarter, Greener, Healthier, and Happier
     David J. Reiss (Brooklyn)

10. [50 downloads] One Strike and You're Out: Padilla Advisement About Public Housing Eligibility
      Deirdre P. Brown (D.C.)

Steve Clowney

February 2, 2012 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 1, 2012

Good News File: America Becomes More Integrated

Ed Glaeser and Jacob Vigdor report on the data from the 2010 census:

  • The most standard segregation measure shows that american cities are now more integrated than they’ve been since 1910. Segregation rose dramatically with black migration to cities in the mid-twentieth century. On average, this rise has been entirely erased by integration since the 1960s.
  • All-white neighborhoods are effectively extinct. A half-century ago, one-fifth of America’s urban neighborhoods had exactly zero black residents. Today, African-American residents can be found in 199 out of every 200 neighborhoods nationwide. The remaining neighborhoods are mostly in remote rural areas or in cities with very little black population.
  • Gentrification and immigration have made a dent in segregation. While these phenomena are clearly important in some areas, the rise of black suburbanization explains much more of the decline in segregation.
  • Ghetto neighborhoods persist, but most are in decline. For every diversifying ghetto neighborhood, many more house a dwindling population of black residents.

Steve Clowney

February 1, 2012 | Permalink | Comments (0) | TrackBack (0)

Hockett & Campbell Propose a Bridge Home Loan Assistance Program

Robert Hockett (Cornell) and Michael Campbell have posted The Home Mortgage Bridge Loan Assistance Act of 2012 on SSRN.  Here's the abstract:

Many homeowners now faced with the threat of foreclosure are only temporarily in distress owing to temporary income loss rooted in unemployment or underemployment. In consequence many foreclosures, along with their many harmful effects upon home prices as well as neighborhoods and families, can be avoided at very low cost through bridge loan assistance programs. Pennsylvania's highly successful HEMAP program, instituted in the early 1980s, is a conspicuous case in point. Our draft statute aims to replicate the benefits of HEMAP while also incorporating lessons learned in the several decades since HEMAP's implementation. The statute is to be considered by the legislature for adoption in the state of New York, and, we hope, might serve as a template for other state legislatures and Congress alike.

Steve Clowney

February 1, 2012 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 31, 2012

Honda CR-V's Super Bowl Commercial

Honda has a new Super Bowl commercial for the CR-V, and has posted an extended version on the Internet.  Starring Matthew Broderick, it uses multiple lines from "Ferris Bueller's Day Off" and basically tracks the movie in recreated/adapted scenes.  (They didn't get Ben Stein, though.)  As a Gen-Xer, how could I not love this commercial?  It may also be a good prompt for classroom discussions of copyright.  Did Honda get permission of whoever owns the rights to Ferris?  Did they need to?


Tanya Marsh

January 31, 2012 in Intellectual Property | Permalink | Comments (0) | TrackBack (0)

Jim Sanborn's (strangely) Cool Landscape Art


This isn't the cover to a new Pink Floyd album.  Rather, it's a 1995 photo taken by landscape artists Jim Sanborn, from a series called “Topographic Projections and Implied Geometries.”  In this series, Sanborn projected grids and other geometric shapes onto dramatic rock formations of the American Southwest and the rocky coastlines of Ireland. As the Daily Beast said, "Sanborn’s pieces hover beautifully between photography and land art and light art, while evoking the kinds of systematizations we imagine coming from computers – rather than actually appearing out in nature, thanks to a jeep, a generator, and an absurdly powerful projector."

Steve Clowney

January 31, 2012 | Permalink | Comments (0) | TrackBack (0)

Are Lenders Overestimating Property Values Prior to Foreclosure?

Over at The Conglomerate, Tom Fitzpatrick has a post that may catch the eye of PropertyProfs with an interest in Real Estate Transactions.  Fitzpatrick explains that banks seem to be systematically overvaluing property values prior to foreclosure sales in weak markets:

Methods used to value property just don’t work well in weak submarkets, and lenders’ valuation models are not correcting for that. It is not hard to imagine that a walk-around appraisal is a reasonably accurate way to value most property in most markets. If brokers want to find non-foreclosure sales to use as comparables, they have to reach back further in time in weak markets than they do in others, so the prices they use are more likely to be stale. Walk-around appraisals may also miss interior damage(stripped copper pipe and wire, appliances, etc.) that properties are more likely to have suffered in weak markets.

Fitzpatrick then highlights the damage that overvaluation is causing in communities around the country. Overestimating property values causes banks to set foreclosure auction reserve prices artificially high,  which in turn leads to fewer sales to homebuyers.  The bank ends up stuck with the property and has few incentives to take care of it, decreasing the value of neighboring land.  

Steve Clowney

January 31, 2012 | Permalink | Comments (1) | TrackBack (0)

Jiang on Transfer on Death Deeds

Jennifer Jiang (UNC - student) has nice piece coming out in the UNC law review, entitled Transfer on Death Deeds: Benefit or Burden? A Proposal for Transfer on Death Deed Legislation in North Carolina.  Here's the abstract:

Real property is a unique concept upon which ideas of property ownership and testator rights have been added to form a multifaceted spectrum of law. An individual’s right to own and devise real property is rooted in common law principles and secured by expectations of testamentary freedom. In an effort to protect these rights, owners execute wills and trusts to maintain control of the distribution of their property after death. Once a will has been validated, probate ensures that justice is served by overseeing title transfers, creditor payments, and the distribution of property to beneficiaries. For better or worse, probate has historically been a fixture in property law. But the idea of subjecting one’s relatives and friends to the probate process has prompted some property owners to choose nonprobate methods of transferring real property.

Steve Clowney

(HT: Al Brophy)


January 31, 2012 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, January 30, 2012

Super Bowl in Indianapolis: the Epicenter of Awesome


I am Super-bummed to miss out on the temporary but, by all accounts, awesome transformation of downtown Indianapolis in anticipation of the Super Bowl.  From the zip line down Capital Avenue to the ice wall from which beer is served on Georgia Street, the football festivities have taken over the city in a major way.  The economic impact of hosting the Super Bowl remains subject to controversy, but my empirical research (which consisted of reading the Indianapolis Star and reviewing my friends' Facebook posts), reveals a much more significant benefit of hosting the Super Bowl.  Sure, Indianapolis is a significant convention town and has hosted many major sporting events.  Every May, over 300,000 people attend the Indy 500, and the Final Four is regularly held in Indy.  But the Super Bowl is different. 

I grew up in Indianapolis in the 1970s and 1980s.  The city had colorful nicknames at the time -- especially "Indian-no-place" and "Naptown."  Downtown closed at 5p.m.  But things began to change in the mid-1980s.  In 1984, we built the Hoosier Dome (I refuse to call it the RCA Dome) in the middle of downtown with fingers-crossed that a NFL team would choose to locate there.  A deal with struck with Robert Irsay, and the Colts arrived in the middle of the night, in a fleet of Mayflower trucks.  Making the transition from a basketball town to a football town took a few years, and probably required the particular magic of Peyton Manning, but the investment in the Dome and the Colts represented a leap of faith for the city.  By the time I came back to Indy after graduating from college in 1994, downtown was already in the midst of a transformation.  Circle Centre Mall opened in 1995 in the warehouse district.  The Indianapolis Zoo had moved downtown in 1988 -- it was joined in 1989 by the Eiteljorg Museum, in 1996 by Victory Field (the most beautiful minor league park in America), in 2000 by the NCAA Hall of Champion, and in 2002 by the Indiana State Museum.  The museums, Victory Field, and the Zoo are part of White River State Park, three blocks from the Indiana Statehouse.  Beyond downtown, Indianapolis has a thriving arts district, the best children's museum in the world, great neighborhoods, restaurants, and schools. 

Indianapolis is the 12th largest community in America, but the traditional inferiority-complex is hard to shake.  To many, Indy has always felt like a big small town, not a big city.  So while the value of hosting the Super Bowl may be difficult to quantify, I would suggest that the greatest benefit is that it put a mirror up to Indy and allowed us to see and appreciate all of the wonderful changes that have taken place over the past thirty years.  Indianapolis isn't Naptown anymore.  We've arrived.  Enjoy the Super Bowl.

Tanya Marsh

January 30, 2012 in Miscellaneous | Permalink | Comments (2) | TrackBack (0)

Obama Administration Issues New Rule Governing Management of National Forests


Scattered across the U.S., there are 155 national forests comprising 193 million acres of land (taken together, that's more area than the state of Texas).  Late last week, the Obama administration issued a new rule to better balance wildlife protection with logging, drilling and recreational uses.  The details of the rule appear rather complicated, but reports indicate there's a new emphasis on "sound science," the protection of water resources, and streamlining forest management. Taking a quick flip through the stories in the press, it appears that both loggers and environmentalists are unhappy with the new rule, which means it's probably a pretty good compromise.

Other fun facts about the national forests:

-- The makeup 8.5% of the land in the U.S.

-- Alaska accounts for 12% of all national forest land.

-- 80% of national forest land is west of the Mississippi.

-- Almost 40% or Idaho is national forest.

Steve Clowney

January 30, 2012 | Permalink | Comments (0) | TrackBack (0)

Does an Apology Have a Market Value?

A fascinating article on the art of the apology offered this tidbit:

A trio of researchers . . . used the German eBay website to conduct a real-world experiment. Via e-mail, they contacted 632 customers who gave a neutral or negative evaluation of a transaction. One-third of the unhappy customers received a message that included the sentence: “I would like to apologize and ask whether you might withdraw your evaluation.” The others were offered, in place of expression of regret, either 2.5 or 5 euros “as a goodwill gesture.” Writing in the journal Economics Letters, the researchers report nearly 45 percent of those given the apology withdrew their evaluation, compared to only 21 percent of those offered cash. A direct apology: priceless.

Steve Clowney

(HT: The Daily Dish)

January 30, 2012 | Permalink | Comments (0) | TrackBack (0)

Margoni & Perry on Joint Ownership

Thomas Margoni (Western Ontario) and Mark Perry (Western Ontario) have posted Ownership in Complex Authorship: A Comparative Study of Joint Works on SSRN.  Here's the abstract:

Copyright legislation, at least in its implementation, can be seen as a triumph of international harmonisation. However, in the area of joint works this is not the case. In the comparison of a North American and European country we observe very different outcomes, despite the similar statutory definitions in copyright legislation. However, the explanation for the divergence of application is not to be found in copyright law, but rather the parts of property law that deal with tenancy in common. Starting from this observation the article uses comparative analysis of rules and remedies available in both systems and concludes with recommendations towards a more fair and efficient framework.

Steve Clowney

January 30, 2012 | Permalink | Comments (0) | TrackBack (0)