February 17, 2012
Salkin on Callies' Work on Land Use in Hawaii
David L. Callies, Regulating Paradise: Land Use Controls in Hawai’i (2d Ed. 2010) (Book Review) (The Urban Lawyer) on SSRN. Here's the abstract:
In 1984, Professor David Callies wrote Regulating Paradise to describe the regulatory scheme in Hawai’i. In 2010, he followed up that book with Regulating Paradise: Land Use Controls in Hawai’i to reexamine the issues as they have developed over the last 25-plus years: housing affordability, the subjects of development agreements, condemnation, defining open space and agricultural lands, takings, cultural sensitivity, environmental assessment, the prevalence of covenanted communities, and redevelopment.
This essay is a review of Professor Callies work which is a must read for anyone involved in land use in Hawaii. What emerges from his work are lingering questions about whether the regulatory scheme has over protected paradise.
February 16, 2012
A Superb Report on Foreclosure Non-Compliance and Fraud, Well Worth Your Time
The City of San Francisco has released a wonderful, empirical study of foreclosure non-compliance and fraud, based on a forensic survey of 400 foreclosures in the recent past. It is so well-written, and explains the foreclosure process and the mortgage-backed securities industry so succintly, that it would be a superb addition to a first year property law course.
The study finds that in 84% of the foreclosures in its sample, there was at least one clear violation of California law, and most often more than one. Many (if not most) of these violations would render the foreclosures invalid.
The only questions now are (1) whether the wrongfully foreclosed upon can find some measure of justice through private claims; (2) whether we can put in place a system of law that prevents this from happening again and (3) how we can trust the validity of title going forward, since in many cases two centuries worth of record-keeping has been broken.
Mark A. Edwards
Trademark Your Baby
Beyonce and Jay-Z welcomed a baby girl on January 7 and named their bundle-of-joy Blue Ivy Carter. A few weeks ago the business-savvy couple applied for a trademark on her name. Slate has a short piece on the ins & outs of trademarking a (famous) name.
Layard on Localism and the Regulation of Multiple Occupancy Housing
Law and Localism: The Case of Multiple Occupancy Housing (Legal Studies) on SSRN. Here's the abstract:
This paper investigates how planning regulation constructs the local, encapsulating a locality and prioritizing local decision-making over regional and national scales. It draws on a case study of the regulation of multiple occupation to make three inter-related points. First, the analysis emphasizes the plurality of ‘locals’ and the interrelationships between them. Second, the paper explains how the justification of the local is required to make a locality legally visible. This operationalization and construction of the local (legally, spatially and socially) must take place before the political logic of localism, the prioritization of local decision-making over other scales of governance, can take legal effect. Third the paper explains how, once the ‘local’ is legally constructed and can make decisions, this prioritization of apparently neutral local expertise and knowledge can act to enclose the spatial and social with sometimes powerful exclusionary and regressive effects.
February 15, 2012
Beauty v. Efficiency
In the Economist, Ryan Avent makes the case that we're too concerned with how our cities look:
[P]eople view the built environment as primarily aesthetic in nature. Most of us live in one building and work in another, and almost every other structure in the city is essentially decoration for our lives; I've been in a lot of Washington buildings, but my primary interaction with the vast majority of Washington structures is a street-level view of their exterior. The nature of this interaction is such that we underappreciate the built environment as an input to production.
Make No Small Plans
(pic: The world's largest church)
Somin on Kelo
What If Kelo V. City of New London Had Gone the Other Way? (Indiana Law Review) on SSRN. Here's the abstract:
Kelo v. City of New London is one of the most controversial decisions in U.S. Supreme Court history. The Kelo Court held that the Public Use Clause of the Fifth Amendment allows government to condemn private property and transfer it to other private parties for purposes of “economic development.” This Article considers the question of what might have happened if the Supreme Court decided Kelo v. City of New London in favor of the property owners. Such counterfactual analysis may seem frivolous. But it is, in fact, useful in understanding constitutional history. Any assessment of the impact of a legal decision depends on at least an implicit judgment as to the likely consequences of a ruling the other way. Analysis can be improved by making these implicit counterfactual assumptions clear and systematically considering their implications.
Part I briefly describes the Kelo case and its aftermath, focusing especially on the massive political backlash. That backlash led to numerous new reform laws. However, many of them turned out to be largely symbolic. Part II discusses the potential value of a counterfactual analysis of Kelo. It could help shed light on a longstanding debate over the effects of Supreme Court decisions on society. Some have argued that court decisions have little impact, mostly protecting only those rights that the political branches of government would protect of their own accord. Others contend that this pessimistic view underrates the potential effect of Supreme Court decisions.
Part III considers the possible legal effect of a ruling in favor of the property owners. Such a decision could have taken several potential forms. One possibility is that the Court could have adopted the view advocated by the four Kelo dissenters: that economic development condemnations are categorically forbidden by the Public Use Clause. This would have provided strong protection to property owners and significantly altered the legal landscape. On the other hand, the Court could easily have decided in favor of the property owners on one of two narrower grounds. Such a ruling would have led to much weaker protections for property owners.
Part IV weighs the potential political impact of a decision favoring the property owners. Such an outcome might have forestalled the massive political backlash that Kelo caused. Ironically, a narrow ruling in favor of the owners that did not significantly constrain future takings might have left the cause of property rights worse off than defeat did. On the other hand, a strong ruling categorically banning economic development takings would likely have done more for property rights than the backlash did, especially considering the uneven nature of the latter. Furthermore, political movements sometimes build on legal victories, as well as defeats, as happened in the case of the Civil Rights movement in the wake of Brown v. Board of Education. It is possible that property rights advocates could have similarly exploited a victory in Kelo.
February 14, 2012
A Fishing Tragedy
According to the New York Times, a classic tragedy of the commons story looks set to wipe out the cod fishing industry in Massachusetts. Recently released data show that the fish is "so severely overfished that even if all fishing on it ended immediately, it would not rebound by 2014 to levels required under federal law."
In response to these numbers, the fisheries arm of the National Oceanic and Atmospheric Administration proposed cutting the cod take by 82 percent cut. A reduction of this size would destroy much of the industry, so the fisherman have lobbied for less drastic measures. The NOAA has now signaled that it will adopt a one-year emergency measure and only mandate a 22 percent cut. That's great for the fishermen and their families, but doesn't do much for the long term health of America's fisheries. Enjoy your New England cod this year -- it doesn't look like we have the political will to save them. Also, someone should probably start brainstorming a new name for Cape Cod. Maybe Cape "Garrett Hardin Was Right"?
(photo: from flickr user Chris Blanar)
Stein on Palazzolo v. Rhode Island
The Modest Impact of Palazzolo v. Rhode Island (Vermont Law Review) on SSRN. Here's the abstract:
Before 2001, state and federal courts did not agree on the extent to which a property owner’s regulatory takings claim should be weakened by the existence of legal restrictions on her use of the property at the time she acquired it. The Palazzolo Court addressed this doctrinal confusion but did not completely resolve it, offering six opinions that partially contradict each other. Some of this discord has persisted, with Palazzolo already cited in nearly five hundred judicial opinions, and not always consistently.
This Article examines the impact Palazzolo has had on state and lower federal courts. After reviewing the law before Palazzolo and the Supreme Court’s decision in that case, the Article offers suggestions as to how courts ought to interpret the contradictory opinions in Palazzolo. More specifically, cases arising at different points in the ripening process should be treated differently, and only a small subset of takings claims should benefit from Palazzolo’s relaxation of the notice rule.
Next the Article assesses the evidence, in an effort to determine whether courts interpreting Palazzolo have actually been following these suggestions. First, it examines the small number of claims in which an owner that probably would have lost before 2001 prevailed. It then compares these results with the far more numerous cases in which an owner that probably would have lost before 2001 still lost even after that decision.
The Article closes by offering a more generalized assessment of the effects of Palazzolo. It concludes that nearly all of the courts to cite Palazzolo have heeded its requirements, but only a few cases have turned out differently than they would have before 2001. The Court’s ripeness rules dictate that few landowners should benefit from the holding in Palazzolo, and only a small number actually do benefit. Lower courts understand Palazzolo, they have been applying it correctly, and they should continue to do what they have been doing.
February 13, 2012
Does the Dukeminier & Krier Get the Mortgage Crisis Wrong?
The following is a guest post from Rebecca Tushnet of Georgetown. Check out her impressive scholarly contributions here. Also, if you're interested in false advertising and other IP issues, then you really should follow her blog. Without further ado:
I recently started teaching the subprime mortgage crisis in my first-year Property class. We use Dukeminier et al., though I’ve supplemented with a bunch of other material, in part because the book came out in 2010. When I was preparing the syllabus, I’d planned to teach McGlawn v. Pennsylvania Human Relations Commission, 891 A.2d 757 (Commonwealth Ct. Penn. 2006), which I found out about in the excellent book Integrating Spaces: Property Law and Race. But then I saw that the most recent edition of the Dukeminier casebook had added a new section on subprime mortgages that contained Commonwealth v. Fremont, on which McGlawn relies for principles about what subprime loans were unfair, so—busy and trusting—I put Fremont on the syllabus instead.
Here’s the thing: McGlawn introduces students to a number of actual victims of predatory lending, including the financial and emotional losses they suffered, while Fremont simply recites the predatory features of the loans, making it harder to see why we should care. Then, in the questions following the case, the Dukeminier casebook asks why consumers took these terrible loans. It cites some law & economics scholarship and some behavioral economics, suggesting that the problem was excessive consumer optimism (as opposed to, in McGlawn, a fair amount of pure fraud as well as misunderstanding).
What the casebook doesn’t ask is why lenders made these terrible loans. The questions we ask influence the answers we get. It’s also notable that the casebook only asks about the consumers in a paragraph that suggests (contrary to all credible evidence) that the Community Reinvestment Act had some causative relationship to the subprime crisis.
The casebook additionally says in the same paragraph, “Because a large proportion of home mortgage loans are sold into the secondary mortgage market, most equitable defenses are unavailable to homeowners as a result of the holder-in-due-course doctrine.” Most students won’t really know what that means; I’ve found that they are disturbed enough by the concept of void versus voidable title—which shows up earlier in the course in the O’Keefe v. Snyder case. But it may be worth telling students that this statement—the foundation of securitization of mortgage loans—is not as certain as the casebook presents it. Among other things, if the note and mortgage were actually assigned in order to perform the foreclosure after the loan went into default (which wasn’t supposed to be the sequence but apparently often was), it’s not clear why the holder is a holder in due course with no notice of the problem with the underlying debt.
I don’t think Dukeminier et al. is an evil casebook, nor do I think that the authors consciously chose to strip out the homeowner-victims in order to reduce them to people who made bad bets and must inevitably suffer the consequences. (And many of the chain of title problems were just coming to light in 2010, which explains why they aren’t in the casebook.) But case selection and questions asked of students have powerful effects on what new lawyers think of as the baseline of the law, and this new section in the casebook is a good example.
Could Better Urban Planning Have Prevented the Mortgage Crisis?
Last Firday, Architect Jeanne Gang and scholar Greg Lindsay penned an opinion piece in the New York Times, arguing that more thoughtful architecture and urban design may have forestalled the housing meltdown:
[B]etter design is precisely what suburban America needs, particularly when it comes to rethinking the basic residential categories that define it, but can no longer accommodate the realities of domestic life. Designers and policy makers need to see the single-family house as a design dilemma whose elements — architecture, finance and residents’ desires — are inextricably linked.
Mossoff on the The False Promise of the Right to Exclude
The False Promise of the Right to Exclude (Econ Journal Watch) on SSRN. Here's the abstract:
This essay, written for the Econ Journal Watch symposium, “Property: A Bundle of Rights?,” addresses a dispute among the critics of the “bundle” conception of property: does defining the core essence of property as the right to exclude avoid the disintegrating effects of the bundle conception? Thomas Merrill and Henry Smith believe so, and they have developed an extensive literature modeling how their “exclusion conception of property” achieves determinacy and information-cost efficiencies in property law. This essay contends that this is a false promise. Merrill and Smith are correct that the bundle conception is wrong, but their model of how the right to exclude functions in practice -- what they call the “exclusion strategy” -- does not account for the majority of property doctrines raised in real-world lawsuits. Despite the emphasis on trespass and conversion doctrines within academic scholarship, most property disputes are not situations in which a property-owner seeks to exclude a stranger from one’s land or chattel; rather, most property disputes arise from sustained and substantial ex ante relationships between individuals concerning the use, possession or disposition of a valued asset or resource. Merrill and Smith claim that these "governance strategies" function only at the "periphery" of property law, but in practice this is simply not true, including even in trespass cases, which supposedly represent the exclusion strategy par excellence. This essay briefly explores this insight by detailing how the exclusion conception of property fails to account fully for this heterogeneity in real-world property disputes, Although the elegant reductionism of the exclusion conception of property makes it theoretically appealing, lawyers and economists should be wary of its promise of determinacy in saving property from the disintegrative effects of the bundle conception.