Sunday, June 26, 2016
Dwight Newman (Saskatchewan) has posted The Economic Characteristics of Indigenous Property Rights: A Canadian Case Study (Nebraska Law Review) on SSRN. Here's the abstract:
Legal and economic scholars have increasingly drawn attention to the impact of property rights issues on economic prosperity for Indigenous communities around the world. In the context of a constitutional provision entrenching Indigenous rights in a state whose resource industries have an international strategic significance, Canadian courts have been and are currently engaged in a process of creatively developing the parameters of various Indigenous rights, including Indigenous property rights. This Article will argue that in doing so, they have developed certain characteristics on those property rights that seemingly undermine Indigenous communities’ own opportunities to make economically beneficial choices concerning uses of their own lands for resource development. The Article will ultimately suggest that this case study raises concerns about the idea of courts focused on public law considerations being positioned so as to develop the private law characteristics of Indigenous property rights. To do so, focusing first on the Supreme Court of Canada’s landmark Aboriginal title decision in the Tsilhqot’in case, Part II of this Article engages first in the complex legal doctrinal task of trying to unpack certain aspects of just what the Court actually said on Aboriginal title and its parameters. Part III builds upon that description of the nature of the Aboriginal title property right and related writing by economic scholars to consider the economic implications of characteristics of that property right, which exhibits — relative to what would have been possible with different drafting of the judicial rules — uncertainties of scope and incentivization of attempts to create further uncertainty, simultaneous imposition of roles to multiple decision-makers on uses of the property and of surprisingly fragmented ownership characteristics, and significant restrictions on alienability of property rights. These characteristics may lead to significant economic consequences both in the context of Indigenous communities contracting with outsiders (such as with resource development proponents) and in the context of members’ own use of the land. The latter parts of Part III try to show the practical consequences for specific resource developments that might be considered by Indigenous communities, such as in the context of a mining development. Part IV, engaging with broader law and economics scholarship on the efficiency of common law adjudication processes, tries to offer some explanations of why the courts are developing these rights in ways that have these economic characteristics, in part by showing how the context in which they are operating is distinct from traditional common law contexts in which scholars have shown why courts have developed legal doctrines that fit more closely with economic efficiency. Part V tries to offer some policy responses that could help to promote the development of more economically functional property rights for Canadian Indigenous communities. Although the particular discussion is situated within Canadian legal doctrine, it will also conclude by referencing broader implications, both for American resource investors and for analogous contexts elsewhere in the world, including for the possibility that courts are not best situated to develop the shape of Indigenous property rights when their adjudicative processes are structured in certain ways.
Friday, June 24, 2016
I’ve been doing a lot of research lately on how property law and the law governing debt recomposition interact—specifically in the context of the Puerto Rican debt crisis. Two major concepts that keep coming up in my research are the Takings Clause and the Contracts Clause.
Property law professors routinely teach eminent domain and Takings Clause concepts in class. In fact, it’s rare to attend a property law conference these days without at least several panels being devoted to such topics. But, I’ve not spent much time thinking about the Contracts Clause—or how it’s different from/similar to the Takings Clause.
Let me make this a little more concrete [BEWARE: this is going to be long-winded] . . . the Supreme Court recently struck down Puerto Rico’s Recovery Act. For those who haven’t been following this as obsessively as I have, Puerto Rico has been going through a bit of a debt spiral of late (to the tune of about $72 billion). Rather than waiting for Congress to do something about it, back in June 2014 Puerto Rican lawmakers decided to take things into their own hands and passed something called the Public Corporation Debt Enforcement and Recovery Act. The new law essentially created a bankruptcy-like process for the island to restructure its debt (I am summarizing, of course. For a more in-depth discussion, the good folks over at CreditSlips have some great descriptions and analysis).
Naturally, the island’s bondholders didn’t greet this new law with open arms. A group of them quickly filed a lawsuit in late summer 2014 arguing that the Recovery Act was unconstitutional. They raised a number of claims, including that the Act was preempted by the U.S. Bankruptcy Code. Now, despite the way oral arguments seemed to go, on June 13, 2016 SCOTUS struck down the Recovery Act in Commonwealth of Puerto Rico v. Franklin California Tax-Free Trust et al., holding that it was preempted by the federal bankruptcy code (specifically, Section 903).
But the part that got me thinking didn’t have anything to do with the Bankruptcy Clause—instead, I got interested in some of the other claims that the bondholders made, but that were not decided by the Court. They asserted in their complaint that “The operation of the Act, as enacted by the Commonwealth and signed into law by the Governor, threatens to improperly impair Plaintiffs' rights . . . in contravention to . . . the Takings Clause, and the Contract Clause.” See Amended Complaint, Franklin California Tax-Free Trust et al., 2014 WL 4954576 (D. Puerto Rico) (Trial Pleading). So, basically, modifying the creditor’s debt would violate the Contracts Clause and the Takings Clause—so Puerto Rico can’t do it – because both constitutional rights apply—or something like that—Right?
THE CONTRACTS CLAUSE
The Contract Clause (Article I, Section 10, Clause 1) states that “[n]o state shall . . . pass any . . . law impairing the obligation of contracts . . . .”
By its very terms, it only applies to the states (i.e., feds, this isn’t a problem for you). The Contracts Clause has a storied history—ebbing and flowing from importance to obscurity. In the early days of the republic (often called the Critical Period, being that time during which the Articles of Confederation were in effect) it was precisely due to a fear of state governments interfering with the rights of creditors that the provision was ultimately included in the federal constitution. As background, after the American Revolution many citizens of the new country found themselves horribly in debt. As a result, various state legislatures began passing laws to ease their pain (which creditors didn’t like very much). Drafters of the constitution found these “invasions into the contracts of private parties” harmful to commerce and the general course of business so they decided to put a limitation in place. See Ogden v. Saunders, 25 U.S. 213, 354 (1827) (for some angry commentary by Chief Justice Marshall). As with so many other provisions in the federal constitution, numerous state constitutions contain parallel contracts clauses as well.
THE TAKINGS CLAUSE
The Takings Clause (in the Fifth Amendment), on the other hand, provides that “private property [shall not] be taken for public use, without just compensation.”
Going back to the early days of the Republic, Thomas Jefferson and his buddies who were opponents of a strong central government advocated for the Bill of Rights (which contained the Fifth Amendment), but they weren’t the first to come up with the idea of protecting private property from the government. The Magna Carta had a similar idea going on, and the concept was already fairly prominent in various state constitutions during the period of the Articles of Confederation.
Initially, the Takings Clause only applied to the federal government (i.e., states, not your problem). Chief Justice Marshall stated in Barron v. Mayor and City Council of Baltimore, 32 U.S. 243 (1833) that “The provision in the fifth amendment to the constitution of the United States, declaring that private property shall not be taken for public use, without just compensation, is intended solely as a limitation on the exercise of power by the government of the United States; and is not applicable to the legislation of the states.”
But that all changed with the ratification of the Fourteenth Amendment in 1868. In Chicago Burlington and Quincy R.R. v. City of Chicago, 166 U.S. 226 (1897) the Court stated: “‘Whatever may have been the power of the states on this subject prior to the adoption of the fourteenth amendment to the constitution, it seems clear that, since that amendment went into effect, such limitations and restraints have been placed upon their power in dealing with individual rights that the states cannot now lawfully appropriate private property for the public benefit or to public uses without compensation to the owner.”
To the point about the recomposition of debt, SCOTUS later developed the regulatory takings doctrine in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), which provides that the government need not physically dispossess a person from his property in order for a takings claim to be raised. Rather, the government could restrict or regulate the use of property to such a degree that the state action was tantamount to a physical taking.
THE CLAUSES WORKING TOGETHER (OR NOT)
So now, when a state government takes an action that causes an impairment or modification of a contract, an aggrieved party can asset claims under both the Takings Clause and the Contracts Clause. That got me wondering—are they really, practically different? Do they produce different outcomes? Are those outcomes consistent? Do courts do a good job (or even try) when it comes to differentiating between the two?
I’m still working on the answers to those questions, but what does seem clear to me is that there doesn’t appear to be very clean lines here. The law is a bit…well…cloudy.
Take the Contracts Clause, for instance. Contemporary cases have held that just because a law impairs a contact doesn’t necessarily mean that it’s prohibited. Cases like U.S. Trust v. New Jersey, 431 U.S. 1 (1977) and Allied Structural Steel Co. v. Spannaus, 438 U.S. 234 (1978) hold that this clause still has to be squared with “the inherent police power of the State to safeguard the vital interests of its people.” See Energy Reserves Group, Inc. v. Kan. Power & Light Co., 459 U.S. 400, 410 (1983). The Supreme Court noted in U.S. Trust that “an impairment may be constitutional if it is reasonable and necessary to serve an important public purpose.” So the prohibition isn’t all that prohibitive after all.
In the context of the Takings Clause, courts have held that various government actions, despite limiting or restricting the use of property, nevertheless do not raise a takings claim. Regulations related to providing for the general welfare, for instance, are perfectly permissible. The court in Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 105 (1978) stated that where the government “reasonably conclude[s] that ‘the health, safety, morals, or general welfare’ would be promoted by prohibiting particular contemplated uses of land,” there is no requirement to compensate the owner. Joe Singer points out in Justifying Regulatory Takings, 41 Ohio N.U. L. Rev. 601 (2015) that:
Key examples of laws that promote the public welfare are zoning and environmental laws and consumer protection laws such as building codes. The Supreme Court has upheld against takings challenges laws that impose height limits and setback requirements, as well as zoning laws that segregate residential, commercial, farming, institutional, and industrial uses. The Court has upheld public accommodation laws and implicitly approved fair housing and employment discrimination laws. It has allowed minimum wage and maximum hours laws and workplace safety laws to operate without challenge.
Both clauses are, in a sense, concerned with protecting the sanctity of property rights (be they tangible—like land or personalty—or intangible—like those arising from a contract creating debt). One obvious difference is that with the Takings Clause it’s still possible for state governments to “take” property as long as they do so for a public purpose and just compensation is paid. Under the Contracts Clause, however, states are flat out prohibited from impairing a contract right. But, as indicated above, both of these commands can ring a bit hollow. States can pass laws that break contracts when it's “necessary and reasonable” and states can regulate property without causing a taking when its “justified.” And if a state is prohibited from impairing a contract, then can they just turn around and claim they're doing it under the Takings Clause? Can a public purpose be "necessary and reasonable" for Contracts Clause purposes and yet not "justified" for Takings Clause purposes? What about the other way around? Are these standards different or are they the same thing?
So what does all this mean for the distinction between the two? Can they always be raised together in the face of state action? What are the defining features/lines that make them wholly separate concepts—or is it better to think of them as being interlocking (like how Justice Kennedy describes the Equal Protection and Due Process Clauses in Obergefell v. Hodges)? I hope to formulate some answers to these questions (or at least sound a bit more like I know what I’m talking about) in the months ahead. Your thoughts are welcome and appreciated in the comments below.
Tuesday, June 7, 2016
I’ve been thinking a lot lately about the property law aspects of debt (don’t let your head hit the keyboard as you fall into a deep slumber from reading that, now!). Most of my interest in this topic comes from my obsession with the Puerto Rican debt crisis. Unless you’ve shut yourself off from social media (or any media, for that matter) you likely at least know that the island, a U.S. territory serving as home to 3.5 million American citizens, is flat broke. They’ve defaulted on multiple interest payments to their bondholders, tried to enact their own bankruptcy-like law (overview by Stephen Lubben at Senton Hall here)--currently pending a decision from SCOTUS, and right now Congress is trying to pass a super special insolvency procedure to help out the island (for a little Citizens United flavor, take a look at this dark money ad urging the defeat of the bill). I’ll have a post on this topic, and the takings claims posed by the bondholders, next week.
But back to debt as property . . . The Supreme Court has long held that rights in debt (contract rights) constitute property. See Omnia Commercial Co. v. U.S., 261 U.S. 502 (1923); see also Lynch v. United States, 292 U.S. 571, 579 (1934) (“Valid contracts are property.”). And we freely buy, sell, and trade such rights all the time. Indeed, that’s what the secondary mortgage market and the private label mortgage market are all about! Buying and selling mortgage debt at discounted rates, typically (in the Fannie/Freddie context) to provide more liquidity to the residential housing market and thereby increasing the availability of credit.
But people buy debt for other reasons as well—to make money! There was a great (and, per usual, hilarious) discussion on John Oliver’s HBO show, Last Week Tonight, this past Sunday on the topic of “Debt Buyers.” Here’s the video:
In the show he points out a bunch of things about the debt buying industry—prominently discussing the shady practices of some of the industry’s less than wholesome characters. In fact, he sends a team with a hidden camera to the industry’s trade conference in Las Vegas. One of the panel presenters at the conference notes cavalierly that, despite state law requirements that debt buyers disclose to consumers that their obligation to pay the debt may be extinguished by the statute of limitations: “Who’s going to read and understand the words on this letter? The unsophisticated consumer? . . . I depose these plaintiffs in these lawsuits and they don’t even read the letter.” What a jerk! I bet he wasn’t too happy to see his remarks go viral.
But back to the point . . . the general idea of the show was to basically talk about how bad the debt buying business can be: how bad guys go after poor, unsuspecting consumer debtors and ruin their lives. But it strikes me that the issue of how one gets into debt and the ability of someone other than the original creditor to enforce the credit right are entirely different. Putting aside the former, is there anything wrong with selling debt like we sell tangible personal and real property? From a debtor’s perspective, does it really matter whether the original counterparty to the contract is the party now trying to enforce it? We could assume that there might be something particular about that specific obligee that makes contracting with him, from the obligor's perspective, special. In those cases we have doctrines of assignability. But, in the context of pure debt (the right to collect on an amount owed) in an arms-length transaction, it does not seem much different than a market for anything else.
But are there policy reasons why we should prohibit (or at least discourage) this type of market from becoming more robust (if it isn’t already – spoiler: it is already)? Chain of title problems certainly loom large in these transactions. As the segment above indicates, often all that is exchanged between the debt seller and debt buyer is the purchase price and an Excel spreadsheet with minimal information about the obligations owed. There’s also little due diligence done on the buyer’s end – such as ascertaining whether the debt is even still collectable. Perhaps one could argue that the nature of this particular type of “property” (specifically how it can impact vulnerable consumer debtors when owned by unscrupulous collectors) merits thinking differently about whether the debt buying business is just another property market. Maybe there are just too many bad guys or, if there aren't that many, the damage that the few cause is just too great.
My home state of Louisiana has a really interesting way of dealing with debt sales once litigation on the debt has commenced. We call it the “right of litigious redemption.” It basically works like this: Original Creditor commences a lawsuit against Debtor. As the litigation proceeds, Original Creditor realizes that he cannot (or does not want to) carry the lawsuit through to the end because it is too time consuming or is eating up too many resources (or for whatever reason). Instead, Original Creditor “sells” the lawsuit to Buying Creditor for a discounted purchase price. Now, Buying Creditor is the plaintiff against Debtor in the litigation. Under Louisiana law, Debtor can now pay to Buying Creditor an amount equal to the discounted purchase price he paid Original Creditor, and in doing so completely extinguish the lawsuit! Voila! Just like that. You can see how this is a great deal for Debtor. If the debt he owes to Original Creditor is $20,000, but Buying Creditor only paid Original Creditor $7,000 for it, then Debtor is essentially relieved of paying $13,000 worth of debt! The supposed policy reason for doing this has to do with wanting to discourage a robust market for the buying and selling of lawsuits from developing. To my knowledge, no other state in the U.S. has such a law (please correct me if I’m wrong in the comments below).
So what about property markets in debt? Good? Bad? Or . . . like most things, a little bit of both?
Thursday, May 5, 2016
This article considers fragmented property systems – the phenomenon of contested, separated or overlapping sub-systems within a national property jurisdiction. One example is circumstances of property despite law. Globally, as many as a billion people claim de facto property without recognition by law in urban informal settlements and agro-pastoral or forested areas. Another example is property without transition to law. Many households in the developing world regulate land markets through local mechanisms notwithstanding opportunities or requirements to use law. The article provides a conceptual frame for the emergence of property system fragmentation based on the private coordination of property relations. The article argues that fragmentation emerges in complex property systems where law attempts to displace property coordination mechanisms, but fails to induce a critical mass of property participants to alter coordination strategies. A focus on coordination provides a means to combine the methodological individualism of economic narratives with collective variables highlighted by other perspectives on property such as anthropology and complex systems theory.
Sunday, April 24, 2016
Chris Odinet (Southern) has posted The Unfinished Business of Dodd-Frank: Reforming the Mortgage Contract (SMU Law Review) on SSRN. Here's the abstract:
The standard residential mortgage contract is due for a reappraisal. The goals of Dodd-Frank and the CFPB are geared toward creating better stability in the residential mortgage market, in part, by mandating more robust underwriting. This is achieved chiefly through the ability-to-repay rules and the “qualified mortgage” safe harbor, which call for very conservative underwriting criteria to be applied to new mortgage loans. And lenders are whole-heartedly embracing these criteria in their loan originations — in the fourth quarter of 2015 over 98% of all new residential loans were qualified mortgages, thus resulting in a new wave of credit-worthy homeowners that are less likely than ever before to default. As a result of this and other factors, the standard form residential mortgage contract, with its harsh terms and overreaching provisions, should be reformed. This is necessary not only due to the fact that such terms should no longer be needed since borrowers are better financially positioned than in the past, but also because of a disturbing trend in the past few years where lenders and their third party contractors have abused the powers accorded to them by the mortgage contract — mostly through break-in style foreclosures. This Article argues for a reformation of the Fannie Mae/Freddie Mac standard residential mortgage contract and specifically singles out three common provisions that are ripe for modification or outright removal.
April 24, 2016 in Common Interest Communities, Home and Housing, Law & Economics, Mortgage Crisis, Real Estate Finance, Real Estate Transactions, Recent Cases, Recent Scholarship | Permalink | Comments (0)
Monday, January 25, 2016
As part of this semester’s introduction to Environmental Law, I asked my students what “Environmental Law” means to them. The first answer was “government interference with private property rights.”
Because any resource protection or allocation regime must work in place, I spend a lot of time in all of my classes discussing the hows and whys—and benefits—of natural resource regulation in Idaho. One aspect of this discussion is always about the role of free market principles in managing the natural environment. But this aspect of the conversation seems to trend toward the abstract, without context that is meaningful for students who might have grown up in the farming, ranching, timber, and mining towns that are still home to many Idaho residents.
The first two weeks of January (both this year and last), I co-taught a course on international aspects of water resource conflicts in the Bio Bío river basin in Chile. Two things tend to surprise our students. First, new dams (including this approved project on the Rio Cuervo in northern Patagonia) are a significant part of Chile’s water resource planning, for a variety of both simple and complex reasons. And second, Chile has chosen to privatize water rights and rely on a market approach to allocating water use.
Despite being thousands of miles from home in a country most of them know very little about, this second element of Chile’s water resource regime provides context useful for my Idaho law students, many of whom innately distrust government and prefer market-based natural resource regulation.
After the Pinochet military coup in 1973, the new military dictatorship relied on a group of largely U.S.-trained economists knows as the “Chicago Boys” to implement a water code that relied almost entirely on privatization and freely-tradable water rights. Carl Bauer’s book Siren Song (and his related articles) contains an excellent overview of Chile’s water code, with Silvia Borzutzky and Elisabeth Madden (Markets Awash: The privatization of Chilean water markets, 25 J. Int. Dev. 251 (2013)) providing an update on changes since Siren Song was published in 2004.
Why is the Chile story useful for my Idaho students? Because, as you might imagine, the system hasn’t worked out as hoped. In practice, Chile’s water markets work relatively well in watersheds without competing types of uses (i.e., little or no hydropower v. irrigation conflict). And not surprisingly, the markets work relatively well when sufficient water is available for all users.
But when there is conflict, both with respect to the type of use or amount of water available, the system struggles. Part of the difficulty is due to a system that encouraged speculation, that doesn’t seem to honor priority in time, that failed to precisely define rights to water, or that made an unrealistic distinction between consumptive and non-consumptive uses. On that last point, the Chilean Supreme Court determined that a dam operator, with a “non-consumptive” right, could freely alter water flows even if the altered flows harm preexisting downstream consumptive rights holders.
This is only a simplified, incomplete introduction. But for anyone interested in property, water, or natural resources management, Chile’s story is fascinating. I recommend considering it. It relies on private property rights without adequately protecting them. It characterizes water as a public good, while allowing (until recently) private speculation and hoarding. It adopted an ‘American’ understanding of the role of the market to a greater extent than we’ve ever considered. And it provides a great case study to help think about water resource conflicts in the western United States, and the appropriate balance of market mechanisms and government regulation.
Wednesday, April 6, 2011
Troy A. Rule (Missouri) has posted Airspace in a Green Economy on SSRN. Here's the abstract:
The recent surge of interest in renewable energy and sustainable land use has made the airspace above land more valuable than ever before. However, a growing number of policies aimed at promoting sustainability disregard landowners' airspace rights in ways that can cause airspace to be underutilized. This article analyzes several land use conflicts emerging in the context of renewable energy development by framing them as disputes over airspace. The article suggests that incorporating options or liability rules into laws regulating airspace is a useful way to promote wind and solar energy while still respecting landowners' existing airspace rights. If properly tailored, such policies can facilitate renewable energy development without compromising landowners’ incentives and capacity to make optimal use of the space above their land. The article also introduces a new abstract model to argue that policymakers should weigh the likely impacts on both rival and non-rival airspace uses when deciding whether to modify airspace restrictions to encourage sustainability.
[Comments are held for approval, so there will be some delay in posting]
Thursday, December 9, 2010
Saturday, July 17, 2010
Amnon Lehavi (Interdisciplinary Center Herzliyah - Radzyner School of Law) has posted Property Rights in an Era of Global Finance on SSRN. Here's the abstract:
This chapter for the Encyclopedia of Financial Globalization studies the unique challenges of property rights in an era of global finance. It first defines the fundamental features of property, trying to bridge the gap that often exists between lawyers and economists in conceptualizing this term. The chapter then explains the local origins of property laws and the ways in which their traditional construct is being increasingly challenged by the forces of globalization. It surveys the prominent institutions and mechanisms that currently address the cross-border effects of property rights through supranational norm-making or other types of coordination among different national property systems. Finally, the chapter moves to a more resource-specific analysis of the challenges of property rules in a globalized era. It assesses how the ordering of property rights in land, chattels, intangibles, and intellectual property can be better adapted to a rapidly-changing global financial environment.
[Comments are held for approval, so there will be some delay in posting]
Wednesday, July 7, 2010
Michael Lewyn (Florida Coastal) has posted What Would Coase Do? (About Parking Regulation) on SSRN. Here's the abstract:
Like many government regulations, municipal minimum parking requirements exist to prevent externalities - most notably the congestion, pollution and greenhouse gas emissions that occur when motorists drive around a city searching for scarce parking. But because such regulations make parking (and thus driving) cheaper, such regulations may in fact increase congestion and pollution, thus creating, rather than reducing, externalities.
[Comments are held for approval, so there will be some delay in posting]