Thursday, May 9, 2013
The Washington Post reports:
The idea that owning a home makes it harder to find a job because of higher moving costs is now known as “Oswald’s hypothesis.” And it’s come in for plenty of scrutiny. Some economists, for instance, have argued that this effect might be counterbalanced by the fact that people who own homes have denser local networks, which makes it easier for them to find jobs in their local area.
Now, however, Andrew Oswald and Dartmouth’s David G. Blanchflower have a brand new working paper (pdf) suggesting that homeownership has an even bigger and wider effect on unemployment than anyone has realized. [...]
The authors find that higher levels of homeownership in a state appear to be associated with lower levels of labor mobility, higher commute times, and fewer new businesses created. Taken together, those three factors tend to increase the unemployment rate. (Why fewer new businesses? One possibility is that homeowners are more likely to use zoning to restrict the activities of firms, though that’s just a hypothesis.)
Wednesday, May 8, 2013
From friend of the blog, Tim Mulvaney:
The Texas Wesleyan Journal of Real Property Law (Property Journal) is holding a national writing competition for all law students on any topic falling into the general theme of real property law. This is a great opportunity for students on law reviews and journals whose note or comment may not have made the final publication cuts, and students who have written excellent papers for a seminar class or independent study. There are cash prizes as well as an opportunity to publish in the Property Journal. For more information, please see http://www.realpropertyjournal.org/Home/national-writing-contest. The submission deadline is June 1, 2013.
Matt Yglesias makes a prediction:
So now that all the countries inside the circle are politically independent and only a handful of them are still governed by totally insane ideologies, we should expect most of the action to happen where most of the people are. That means most of the manufacturing, but also most of the innovation and most of the popular culture. Both the producers and consumers of everything live over there. Bad government inside the circle can stall the catch-up process, but outsiders can't force Asian countries to be poorly governed.
David Pimentel (Ohio Northern) has posted Forfeitures Revisited: Bringing Principle to Practice in Federal Court (Nevada Law Review) on SSRN. Here's the abstract:
Dramatically expanded use of federal forfeitures since the 1980s has raised persistent concerns about government overreaching in the seizure of private property. The Supreme Court failed to address the problem in Bennis v. Michigan (1996), upholding the forfeiture of property of an entirely innocent owner, relying on the ancient and unconvincing principle that the property itself is guilty. Congress stepped in to curb law enforcement’s worst abuses of this lucrative practice in 2000, but the Civil Asset Forfeiture Reform Act was a patchwork effort that tweaked the rules without revisiting the unsatisfying policies behind them. Thus a comprehensive, policy-based re-examination of forfeiture doctrines is overdue. This re-examination reveals three distinct and dissimilar categories of forfeitures — (1) contraband, (2) proceeds of crime, and (3) property used to facilitate crime — which are lumped together into a one-size-fits-all procedure. Because each of these types of forfeitures is based on distinct policy objectives, and because each poses different risks to the legitimate interests of property owners, separate procedures are required for each. Contraband forfeitures, which protect public health and welfare, can be effected on probable cause alone. Proceeds forfeitures, which effect a nonpunitive deterrence under the principle of unjust enrichment, raise factual questions that require stronger procedural safeguards and a higher burden of proof. Facilitating property forfeitures, which give rise to the worst abuses of the procedure, and which serve the most dubious of policy objectives, are difficult to justify under any procedure. A clearer articulation and understanding of the policy behind each type of forfeiture will set the stage for a more comprehensive and coherent reform. In the meantime, it can help courts to interpret and apply existing standards — including Eighth Amendment excessive fines analysis — in a more principled way. A policy-based approach, under a new taxonomy of forfeitures, is essential to address the persistent problems with federal forfeiture procedure and bring coherence and equity to the practice in federal court.
Tuesday, May 7, 2013
Property Prof's very own Tanya Marsh has a great piece on the Huffington Post about the law surrounding the disposition of the body of Tamerlan Tsarnaev (the Boston Marathon bomber who died in a firefight with police). The whole piece is fascinating. Here's a taste:
The Worcester, Massachusetts funeral director with possession of Boston Marathon bombing suspect Tamerlan Tsarnaev has reported that cemeteries in multiple states have refused to permit burial of his body.
This situation raises several important questions regarding the disposition of human remains. After a person dies, we clearly need to make decisions regarding final disposition, for public health reasons as well as closure for the family and community. But what happens when the remains are those of a person believed to have committed a horrific, recent crime?
The answer to the legal questions depends in large part on what state hosts the remains. There is very little federal law on this subject. In this case, Tsarnaev died in Massachusetts and his body is apparently currently located in Massachusetts, so that state's law is most relevant.
Like most states, Massachusetts law provides that "every dead body of a human being dying within the commonwealth ... shall be decently buried, entombed in a mausoleum, vault or tomb or cremated within a reasonable time after death." (M.G.L.A. 114 § 43M) The person having custody of the remains is charged with carrying out this obligation. In Tsarnaev's case, his uncle appears to have taken responsibility for his remains after Tsarnaev's wife refused.
Although the law requires that bodies be decently disposed of within a "reasonable" time after death, it does not provide clear answers about how to accomplish that. For example, no Massachusetts statute requires a cemetery to accept a body for burial. In 2003, in LaCava v. Lucander, the Appeals Court of Massachusetts held that there is no fundamental right to be buried in the cemetery of one's choosing. In that case, a man who had been convicted of killing his wife asked to be buried in the same Westminster, Massachusetts town cemetery where his wife rested. The cemetery commission denied his request, but offered him a plot in another town cemetery.
Monday, May 6, 2013
Montana has become the third state to enact the Uniform Partition of Heirs' Property Act (the others are Nevada and Georgia)."Heirs' property" typically refers to land passed down through generations without a will and owned by descendants as tenants in common. The trouble with these arrangements is that anyone who purchases even the smallest fractional interest from one owner can file a partition action with a court and force a sale of the property. These sales often happen against the explicit wishes of many of the family members who have ownership shares in the property. Family members may end up forced off land where they have lived for generations and, all too often, the mandated sales fail to secure fair market value for the property.
The Uniform Partition of Heirs’ Property Act seeks to create a number of protections for owners of heirs’ property. Under the Act, "the court appoints a disinterested real estate appraiser to assess the fair market value of the property, unless all the cotenants agree to a different valuation method, agree on the value of the property, or the court determines that the cost of the appraisal will outweigh its evidentiary value. The Act provides the procedural timeline for determining the fair market value. After the court determines the value of the property, the Act provides all of the cotenants who did not request partition by sale with a right to buy out all of the interests of those who have done so, at a price equal to the court-determined value of the property multiplied by the fractional interest of the cotenant that is bought out. If the buy-out does not resolve the matter, the Act provides courts with a clear set of protocols and considerations for determining whether and how to proceed with partition in kind or by sale for this important subset of property."
A warm congratulations to property professor Thomas Mitchell of the University of Wisconsin Law School, who served as primary drafter of the act.
Jessie Owley (Buffalo) has posted From Citizen Suits to Conservation Easements: The Increasing Private Role in Public Permit Enforcement (Envtl L. Rep. News & Analysis) on SSRN. Here's the abstract:
The past 40 years have seen an increase in the involvement of private actors in environmental law. One of the best-known (and arguably best-loved) methods for public involvement is the citizen suit. This popular method of public enforcement of environmental permits (among other things) has been joined by the use of conservation easements. Conservation easements are increasingly used to meet permit mitigation requirements. When private nonprofits hold the exacted conservation easements, they assume the role of permit enforcers. It is their job to ensure that conservation easement terms are complied with, giving them oversight and control over one of the pivotal components of environmental permitting regimes. Land-trust-held exacted conservation easements privatize enforcement of environmental law, much as citizen suits do. However, exacted conservation easements differ from citizen suits in that they foreclose public enforcement instead of complement it. Use of exacted conservation easements would improve if we apply lessons about public involvement and information from our citizen suit tradition.