March 1, 2012
Guest Bloggers Wanted for Re-Tell Therapy
We're looking for a few guest bloggers to join us. If you're interested, please drop me an email. Guest stints generally last about a month, and we hope you'll post at around twice a week. If you've ever wondered if you'd like to blog, this is a low-pressure way to find out if you're made of the right stuff. Benefits include the opportunity to promote your scholarship, a cool new line on your C.V., and the promise of copious free drinks on me at the law conference of your choice.
Welcome Back, Tenant
The New York Times has a fun editorial by a landlord in Cleveland, Ohio:
At cocktail parties, I say, “I’m a landlord.” People hate that. Everybody hates landlords. That’s because nobody paid rent as a child. Renters think apartments should be free, like the wind, rain and baby food. I used to say, “I’m in real estate.” That sounded better; however, I spend a fair amount of time peering in apartment windows for cats, to charge pet fees. That probably doesn’t say “real estate” to most people.
Recent SSRN Downloads
In honor of the beginning of the month here are the most downloaded property papers on SSRN over the last sixty days:
3. [155 downloads] Wills for Everyone: Helping Individuals Opt Out of Intestacy
Reid K. Weisbord (Rutgers)
4. [140 downloads] Saving Locke from Marx: The Labor Theory of Value in Intellectual Property Theory
Adam Mossoff (George Mason)
5. [139 downloads] Two Cheers for the Bundle-of-Sticks Metaphor, Three Cheers for Merrill and Smith
Robert C. Ellickson (Yale)
8. [73 downloads] What If Kelo v. City of New London Had Gone the Other Way?
Ilya Somin (George Mason)
February 29, 2012
The Root of All Evil
Wired magazine distills a new research study which argues that as an individual's wealth and status rise, they tend to behave more unethically. The paper incorporates the findings of seven different, and equally fascinating, experiements. In one, reasearchers found that owners of fancy cars are more likely to cut off pedestrians. In another, subjects were asked to imagine themselves as either very rich or poor. They were later given an chance to take candy from a jar that was being delivered to children in another lab. Students who had imagined themselves to be rich took more candy, suggesting that “the experience of higher social class has a causal relationship to unethical decision-making and behavior.” In the end the study concludes that:
[U]nethical behavior in the study was driven both by greed, which makes people less empathic, and the nature of wealth in a highly stratified society. It insulates people from the consequences of their actions, reduces their need for social connections and fuels feelings of entitlement, all of which become self-reinforcing cultural norms.
Alexander on Culture, Urban Space, Power, and Law
Hip-Hop and Housing: Revisiting Culture, Urban Space, Power, and Law (Hastings) on SSRN. Here's the abstract:
U.S. housing law is finally receiving its due attention. Scholars and practitioners are focused primarily on the subprime mortgage and foreclosure crises. Yet the current recession has also resurrected the debate about the efficacy of place-based lawmaking. Place-based laws direct economic resources to low-income neighborhoods to help existing residents remain in place and to improve those areas. Law-and-economists and staunch integrationists attack place-based lawmaking on economic and social grounds. This Article examines the efficacy of place-based lawmaking through the underutilized prism of culture. Using a sociolegal approach, it develops a theory of cultural collective efficacy as a justification for place-based lawmaking. Cultural collective efficacy describes positive social networks that inner-city residents develop through participation in musical, artistic, and other neighborhood-based cultural endeavors. This Article analyzes two examples of cultural collective efficacy: the early development of hip-hop in the Bronx and community murals developed by Mexican immigrants in Chicago's Pilsen neighborhood. These examples show that cultural collective efficacy can help inner-city residents mitigate the negative effects of living in a poor and segregated community and obtain more concrete benefits from urban revitalization in their communities. Cultural collective efficacy also provides a framework to examine important microdynamics in the inner-city that scholars and policymakers have ignored. Lastly, this Article devises new combinations of place-based laws that might protect cultural collective efficacy, such as: (1) historic districts with affordable housing protections secured through transferable development rights, (2) foreclosure prevention strategies, (3) techniques to mitigate eminent domain abuse, and (4) reinterpretations of the Fair Housing Act's "affirmatively furthering" fair housing mandate. These examples of place-based lawmaking may more effectively promote equitable development and advance distributive justice in U.S. housing law and policy.
February 28, 2012
Property at the Supreme Court
The Supreme Court recently announced its decision in PPL Montana, LLC v. Montana, a case with some implications for property law. Writing at Scotusblog, Tom Merrill (Columbia) has an overview of the opinion.
Banks Make Crummy Landlords
NPR has a piece up about what happens when banks end up serving as landlords over foreclosed property. In a nutshell, the results aren't pretty:
Across the country, big banks and other large investors are buying up tens of thousands of foreclosed rental properties. They're not always model landlords, according to tenants and regulators. Some banks are failing to follow local and state housing codes, leaving tenants to live in squalor — without even a number to call in the most dire situations.
Newman on the Nature of Licenses
A License is Not a 'Contract Not to Sue': Disentangling Property and Contract in the Law of Copyright Licenses on SSRN. Here's the abstract:
The assertion that a “license” is simply a “contract not to sue” has become a commonplace in both copyright and patent law. I argue that this notion is conceptually flawed, and has become a straightjacket channeling juristic reasoning into unproductive channels. At root, a license is not a contract, but a form of property interest. It may be closely intertwined with a set of contractual relationships, but its nature and consequences cannot be satisfactorily explained from within the world of contract doctrine alone. In this article, I seek to explain the complementary but parallel roles played by property and contract doctrine in creation of the various forms of legal interests we refer to as “licenses.” Each doctrine has its own set of governing formalities that afford titleholders various means through which to create and protect use privileges granted to others, while still retaining residual title for themselves. I argue that clarifying the extent to which licenses are exercises of powers conferred by property rather than contract law provides a key to proper application of Section 204 of the Copyright Act of 1976, which has been (erroneously) construed as a statute of frauds governing contract formation, as opposed to one governing a specific form of property conveyance.
February 27, 2012
The Promise and Peril of Renting to Own
An article from the Pittsburgh Post-Gazette runs through the ups and downs of renting-to-own real property. The story chronicles the attempt of the Heckter family to purchase a small home in the Pittsburgh suburbs:
The couple signed a contract in August to buy the three-bedroom home and a detached two-bedroom rental house on the same property for $31,000. What they say they didn't understand at the time was that they would have to make a $16,000 balloon payment on Aug. 1, 2013.
With no credit history, no disposable income, a 1-year-old daughter and another child on the way, Matthew, 22, and his wife, Christine, 21, are beginning to feel they've gotten in over their heads.
Levitin & Wachter on The Commercial Real Estate Bubble
Adam Levitin (Georgetown) and Susan Wachter (Wharton) have posted The Commercial Real Estate Bubble on SSRN. Here's the abstract:
Two parallel real estate bubbles emerged in the United States between 2004 and 2008, one in residential real estate, the other in commercial real estate. The residential real estate bubble has received a great deal of popular, scholarly, and policy attention. The commercial real estate bubble, in contrast, has largely been ignored.
This Article explores the causes of the commercial real estate bubble. It shows that the commercial real estate price bubble was accompanied by a change in the source of commercial real estate financing. Starting in 1998, securitization became an increasingly significant part of commercial real estate financing. The commercial mortgage securitization market underwent a major shift in 2004, however, as the traditional buyers of subordinated commercial real estate debt were outbid by collateralized debt obligations (CDOs). Savvy, sophisticated, experienced commercial mortgage securitization investors were thus replaced by investors who merely wanted “product” to securitize. The result was a noticeable decline in underwriting standards in commercial mortgage backed securities that contributed to the commercial real estate price bubble.
The commercial real estate bubble holds important lessons for understanding the residential real estate bubble. Unlike the residential market, there is almost no government involvement in commercial real estate. The existence of the parallel commercial real estate bubble presents a strong challenge to explanations of the residential bubble that focus on government affordable housing policy, the Community Reinvestment Act, and the role of Fannie Mae and Freddie Mac. Instead, the changes in commercial real estate financing closely mirror changes in the residential real estate financing, which shifted from regulated government-sponsored securitization to unregulated private securitization. This indicates that changes in the securitization market contributed to the problems in both the commercial and residential real estate markets.