Monday, May 11, 2015
Linda Fisher (Seton Hall) has posted Shadowed by the Shadow Inventory: A Newark, New Jersey Case Study of Stalled Foreclosures and Their Consequences (Irvine Law Review) on SSRN. Here's the abstract:
This project tests the extent to which bank stalling has contributed to foreclosure delays and property vacancies in Newark, New Jersey. Previous studies uncovered considerable evidence of stalled or abandoned foreclosures in other areas of the country. Several found that abandoned foreclosures correlated positively with property vacancies. This is the first study to trace the disposition of each property in the sample through both public and private sources, allowing highly accurate conclusions to be drawn. I reach a similar conclusion to the previous studies: without legal excuse or ongoing workout efforts, banks frequently cease prosecuting foreclosures. The stalled foreclosures in my study, however, do not strongly correlate with property vacancies.
This study is small in scale, involving a random sample of one hundred foreclosures filed between 2007 and the first half of 2009 in a single neighborhood, but my results can be extrapolated to the City of Newark, and to some extent, similar lower-income urban neighborhoods in northeastern states with judicial foreclosure regimes. The national banks that securitized mortgages during the housing boom followed standard practices of targeting communities of color for the worst subprime loans. They also followed national servicing and foreclosure practices adapted to each state’s laws. Further research can confirm the applicability of this hypothesis to other areas of the country. Nonetheless, there is no disagreement that indefinitely stalling foreclosures — without notice to those affected — is poor policy.
Brian Sloan (Cambridge) has posted Adult Social Care and Property Rights on SSRN. Here's the abstract:
This paper arises out of the project on adult social care and property rights that the author began at the Centre for Research in the Arts, Social Sciences & Humanities (CRASSH) in Cambridge. It assesses the possible impact of the Care Act 2014 on the provision of social care for elderly and disabled adults in England, focusing particularly on the balance between ensuring adequate care and affecting the property rights of the recipients of social care, their families, and others who might have legal or moral claims to their property (especially via inheritance). The paper uses the European Convention on Human Rights to measure the Act's implications, arguing that normative problems remain despite the Act's general compatibility with the Convention.
Friday, May 8, 2015
To try to understand the difficulties in trading water, I decided to set up a hypothetical exchange. I talked to Dale Melville, manager-engineer of the Dudley Ridge Water District in the southern San Joaquin Valley. "Suppose I’m a farmer in your water district," I told Melville, "and I want to sell my water. I’ve got some old almond trees that aren’t producing anymore, and instead of planting more I’d just like to sell 100,000 acre feet of irrigation water. What do we do first?"
"We’d start by asking if there was anyone in the district who wanted that water," he said. This is just good manners, and if you can sell the water locally you avoid a significant hassle. Then he’d call up a few buyers from around the state. The market is small enough that you learn whom to call, he said.
So he’d make some calls and spread the word: Hey, I’ve got 100,000 acre-feet we are looking to sell at $400 an acre-foot. (The definition of an acre-foot is the amount of water it takes to fill an acre one foot deep — 325,851 gallons.)
One of those likely buyers is the Metropolitan Water District of Southern California — the Los Angeles water system, or Metro for short. Let’s say we agree to a price with Metro and shake hands. Now do I get my check? Melville laughed. "It might take a little while," he said.
Next we’d need to get approval from someone like Nancy Quan at California Department of Water Resources. "If you are going to use our facilities to transport the water, you have to show that the sale is going to have no negative impact to the economy, or the environment, and that it’s not going to injure other water users," she told me. And I’d have to be pretty thorough.
Usually the Department of Water Resources will have a scientist visit me to check out my situation and ask questions. It wants to ensure that I’m actually letting water flow past that I would have used if I weren’t making a sale. I’d have to show that nothing was growing on the land, not even weeds. The whole process might take a couple months, Melville said. (I’m actually making it seem simpler than it is by skipping some subtleties here. To understand the full regulatory process see the chart below, which comes from this white paper.)
Melinda Taylor (Texas) & Holly Doremus (Berkeley) have posted Habitat Conservation Plans and Climate Change: Recommendations for Policy on SSRN. Here's the abstract:
The first habitat conservation plan (“HCP”) – the San Bruno Mountain HCP – was approved by the U.S. Fish and Wildlife Service in 1986 and covered 3,500 acres. Since 1986, approximately 670 HCPs have been approved by the Fish and Wildlife Service and the National Marine Fisheries Service (“Services”). They cover almost 47 million acres of land with diverse habitats, including Florida scrub, long leaf pine, limestone karst, Southwest desert, and old growth timber. The vast majority of HCPs have been approved since January 1998, a reflection of the success of policies developed during the Clinton Administration and refined during the Bush Administration that were designed to provide incentives for landowners to protect rare habitats. The Services published their “Habitat Conservation Planning and Incidental Take Permit Processing Handbook” (“Handbook”) in 1996 and an addendum to the Handbook in 2000. The Handbook provides guidance to the Services on the processing of HCPs and the public when preparing HCPs and navigating through the regulatory process.
Climate change is not mentioned in the Endangered Species Act, its implementing regulations, or the HCP Handbook. The impact of climate change on threatened and endangered species and their habitats was not considered by Congress when the Endangered Species Act (the “Act” or “ESA”) was passed, or by the Services when the regulations and Handbook were written. But it is apparent today that climate change is having an impact on fish and wildlife and, even if aggressive mitigation strategies are implemented in the near term, will continue to affect natural systems for decades to come. The Services recognize this and have announced a Climate Action Plan that includes a series of implementation measures, including a commitment to identify which species are most at risk from climate change and to revise Service policies to take climate change into account.
This paper briefly sketches the challenges that climate change poses for successful habitat conservation planning, highlights key policy issues, and makes recommendations at several levels. First, we identify significant overarching complexities associated with addressing climate change in HCPs and recommend steps to address them. Second, at a detailed level, we identify key provisions in the Services’ regulations and the Handbook that seem to be at odds, some requiring that climate change be taken into account while others complicate that task, and recommend revisions to facilitate consideration of climate change impacts on species. Improving the use of adaptive management in HCPs is critical. Finally, we suggest that effective conservation planning in the face of climate change requires that habitat conservation planning be considered in the larger geographic and policy context, and coordinated with other conservation practices. Many, though perhaps not all, of our recommendations may be considered as “best practices” for habitat conservation planning, irrespective of the existence of climate change as an additional stressor.
Thursday, May 7, 2015
Now that's a remedy:
The developers who demolished a historic pub in north London without planning permission have been ordered to rebuild the entire building brick-by-brick.
Councillors in Westminster have ordered the Tel Aviv-based owners of the Carlton Tavern, CLTX Ltd, to rebuild the pub within 18 months after it was torn down on 8 April.
The decision was passed at the offices of Westminster City Council on Tuesday evening, the Evening Standard reports. Conservative Maida Vale councillor Jan Prendergast condemned the demolition as “the lawless destruction of Westminster’s heritage.”
Federico Cheever (Denver) & Jessica Owley (Buffalo) have posted Enhancing Conservation Options: An Argument for Statutory Recognition of Options to Purchase Conservation Easements (OPCEs) (Harvard Environmental Law Review) on SSRN. Here's the abstract:
The most dynamic component of the conservation movement in the United States for the past three decades has been land conservation transactions. In the United States, land conservation organizations have protected roughly 40 million acres of land through transactions. Most of these acres have been protected using conservation easements. Climate change threatens the vast conservation edifice created by land conservation transactions. The tools of land conservation transactions are, traditionally, stationary. Climate change means that the resources that land conservation transactions were intended to protect may no longer remain on the land protected. Options to purchase conservation easements (OPCEs) have long played a modest but important role in conservation law practice. In the world climate change is creating, with its substantial uncertainties and shifting windows of opportunity, OPCEs can serve more complicated and strategic purposes. The ability of OPCEs to serve important roles in protecting land in the context of uncertainty would be significantly increased if state legislatures amend current conservation easement statutes to (1) specifically recognize OPCEs, (2) immunize OPCEs from a range of potential common law challenges, (3) guarantee the durability and transferability of OPCEs, and (4) integrate OPCEs into the burgeoning body of conservation easement law. These statutory amendments would do for OPCEs what conservation easement statutes have done for conservation easements: transform them into an essential multi-purpose tool for conservation in a changing world.
Wednesday, May 6, 2015
Slate highlights China's increased presence in the frozen southlands:
UNIVERSITY OF NEW BRUNSWICK
The Faculty of Law invites applications for two tenure track appointments, anticipated to be at the Assistant Professor level. The starting date is July 1, 2015 or such other date as is negotiated with the successful candidate. The positions are subject to budgetary approval.
The Faculty welcomes applications from outstanding scholars of diverse perspectives and will consider an appointment in any field of expertise, although our current priorities are in the areas of contract law (including insurance); employment and labour law; corporate/commercial law; property law (including environmental law and land use planning); and taxation. Candidates will have a strong academic record and will have, or will be completing, a graduate degree in law or a related discipline. They will have a record of, or potential for, excellence in teaching and research.
Founded in 1892, UNB’s Faculty of Law is a collegial community with a deep commitment to its 250 students. We pride ourselves on having one of the most structured JD programs in Canada. All faculty members contribute to, and are committed to, sustaining the core curriculum, which includes compulsory courses in all three years.
The Faculty’s offices, teaching facilities, and the Gérard V. La Forest Law Library are located together in an attractive setting on UNB’s Fredericton campus, above the St John River, in the capital city of New Brunswick. Faculty and students support a variety of causes and events enhancing the civic life of the school and community. The Faculty is home to the UNB Law Journal/Revue de droit de l’U N-B, a student-produced annual. The Faculty offers many opportunities for collaborative work both inside and outside the University.
Review of applications will begin May 15, 2015 and will continue until the positions are filled. Those who submitted applications in respect of the advertisement circulated last fall need not re-apply. Other interested applicants should submit a curriculum vitae, transcripts of university study, a brief statement of research and teaching interests, and the names, postal and e-mail addresses, and telephone numbers of three referees to:
Interim Dean John Williamson
Attn: P. Hackett
Faculty of Law, University of New Brunswick
PO Box 4400, Fredericton, NB E3B 5A3
Telephone: (506) 453-4627; Fax: (506) 453-4604; E-mail: Pamela.Hackett@unb.ca
Luke Meier (Baylor) & Rory Ryan (Baylor) have posted The Validity of Restraints on Alienation in an Oil and Gas Lease (Buffalo Law Review) on SSRN. Here's the abstract:
This paper explains why a restraint on alienation within an oil and gas lease should be enforceable. The reasons that privately-imposed restraints on alienation are sometimes invalidated simply do not apply to a restraint within an oil and gas lease. Rather, the relationship created by an oil and gas lease justifies enforcement of restraint clauses that have been bargained for by the landowner.
Ann Eisenberg (West Virginia) has posted Beyond Science and Hysteria: Reality and Perceptions of Environmental Justice Concerns Surrounding Marcellus and Utica Shale Gas Development (Pittsburgh Law Review) on SSRN. Here's the abstract:
The debate surrounding the use of hydraulic fracturing (also known as “fracking” or “HF”) to extract natural gas from the Marcellus and Utica shale deposits is often characterized as a tension between economic development and environmental risks. But frequently missing from this dichotomy is the fact that the concerns of many who oppose HF use extend beyond the purely “environmental,” and also include concerns about issues such as “the natural resource curse” and losing autonomy. These concerns ring of “environmental justice” rather than “environmentalism.” Environmental justice espouses the belief that no group should bear disproportionate environmental consequences resulting from industrial activity, and that people affected by industrial activity should be meaningfully involved in implementation. Although the environmental justice movement has existed for decades and some federal and state policies acknowledge its principles, environmental justice has yet to be meaningfully incorporated into any legal framework in the United States.
This Article argues that a nuanced characterization of the HF controversy should include a more robust discussion of both environmental justice and discourse. Part I examines relevant regional economic and social dynamics, including the natural resource curse, Appalachia’s unique vulnerabilities, efforts to portray opponents of shale gas development as “anti-science,” and the environmental justice movement’s relationship to extractive industries. Part II reviews the use of modern HF technology and applicable legal frameworks in West Virginia, Pennsylvania, Ohio, and New York. Part III argues that across Ohio, Pennsylvania, and West Virginia, environmental justice issues have arisen from shale gas development, including problems stemming from information asymmetries, power asymmetries, and limited access to justice. In Part IV, the Article argues that the “anti-science” portrayal of shale gas opponents is unjustified, and that such “discourse-framing” obfuscates the actual costs and limitations on benefits of HF use, and thus, becomes an environmental justice issue itself. Part IV also argues that environmental justice concerns, including the lack of legal remedies for environmental injustice, shaped public sentiment in New York, and that the resulting “moral outrage” added to New York’s policy decision to ban HF altogether. Finally, in Part V, the Article suggests that ideas which transcend the study of “moral outrage”/risk assessment and environmental justice advocacy may offer a way forward.
Tuesday, May 5, 2015
Henry Smith (Harvard) and John Goldberg (Harvard) have founded a new blog that will be of interest to many readers: The New Private Law Blog. The blog will feature a wide-ranging discussion of issues concerning the rights and duties of individuals and private entities as they relate to one another. Future blog posts will address topics in contracts, torts, property, intellectual property, remedies, restitution, and related areas.
One of the initial posts lists the 50 most-cited private law articles since 1990 (see here). The top real property related entries:
1. Lisa Bernstein, Opting out of the Legal System: Extralegal Contractual Relations in the Diamond Industry, 21 J. Legal Stud. 115 (1992)
2. Cheryl Harris, Whiteness as Property, 106 Harv. L. Rev. 1707 (1993)
3. Michael Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets, 111 Harv. L. Rev. 621 (1998)
4. Robert Ellickson, Property in Land, 102 Yale L.J. 1315 (1993)
5. Thomas Merrill & Henry Smith, Optimal Standardization in the Law of Property: The Numerus Clausus Principle, 110 Yale L.J. 1 (2000)
Sally Richardson (Tulane) has posted Abandonment and Adverse Possession (Houston Law Review) on SSRN. Here's the abstract:
The number of vacant properties nationwide jumped by 4.5 million between 2000 and 2010, an increase of 44%, due to a variety of factors, such as the financial crisis and natural disasters. Vacant properties create a vicious cycle of negative externalities: abandoned property breeds blight and crime, thereby further depressing the economy, which leads to more abandoned property. Solving the problem of abandonment is a top priority for municipal leaders, but effective means of putting abandoned property in the hands of a private owner are hard to come by. Cities have experimented with a variety of solutions ranging from eminent domain to land banks to enticing owners to return to their abandoned property through grant money.
This Article proposes an alternative solution for abandoned property: adverse possession with a reformed possession requirement. This Article argues that the traditional application of the possessory requirement for adverse possession should be modified when the true owner has vacated his property. In this instance, actual possession should be unnecessary; instead, a notice of intent to possess should be sufficient to acquire abandoned property through adverse possession. By altering the doctrine in this manner, adverse possession can be an efficient solution for private parties to acquire ownership of abandoned properties while still offering a temporal safety net to protect true owners. Furthermore, expanding possession in this manner allows the doctrine to serve as a tool for market discovery that encourages adverse possessors and true owners to transfer ownership through voluntary bilateral transactions.
Monday, May 4, 2015
I've just returned from the annual meeting of the Association of Law Property and Society (ALPS) at the University of Georgia (check out the new and improved website). As usual, it was terrific: great papers, warm fellowship, and an invigorating mix of American and international scholars.
For those of you that couldn't make it this year, the board announced that next year's conference will take place on May 20-21 at Queen's University in Belfast, Northern Ireland. Save the Date. And start looking under the couch cushions for travel money.
Reed Benson (New Mexico) has posted Protecting River Flows for Fun and Profit: Colorado's Unique Water Rights for Whitewater Parks (Ecology Law Quarterly) on SSRN. Here's the abstract:
Since 2001, Colorado has recognized a special type of water right for whitewater parks, which are designed and constructed within a river channel to provide play features for kayakers and other boaters. These water rights, called recreational in-channel diversions or RICDs, are unique to Colorado, even though whitewater parks exist in several western states. This article addresses some of the underlying reasons why RICDs got established in Colorado, and traces the controversy surrounding their recognition by that state’s courts and legislature. Over the last decade, however, the controversy has largely died away, and whitewater park rights have now become an accepted part of Colorado water law. This article reviews these developments, examines the policy choices made by the legislature in enacting two different statutes on RICDs, and offers concluding observations regarding Colorado’s experience with whitewater park water rights.
Wednesday, April 29, 2015
Both the lateral and entry-level hiring markets were rough sledding for property professors this year. On the entry-level side, it doesn't appear that any new hires do research on traditional real property subjects. The entry-level hires that do Property-ish stuff:
Cathay Smith (Montana) (IP)
Natalie Banta (Valparaiso) (Trusts & Estates)
Kristen van de Biezenbos (Texas Tech) (Oil & Gas)
On the lateral side there are three big stories. First, Michael Schill, property professor (and Dean) at University of Chicago, was appointed president of University of Oregon.
Second, Sonia Katyal moved from Fordham to Berkeley.
And, finally, Texas A&M hired all of the intellectual property professors it could find. Under new dean, Andrew Morriss, A&M made five senior hires (nine total hires!). Three of the senior hires have strong backgrounds in IP: Glynn Lunney, Peter Yu, and Irene Calboli.
When George Thomas was eight he walked everywhere. It was 1926 and his parents were unable to afford the fare for a tram, let alone the cost of a bike and he regularly walked six miles to his favourite fishing haunt without adult supervision.
Fast forward to 2007 and Mr Thomas's eight-year-old great-grandson Edward enjoys none of that freedom. He is driven the few minutes to school, is taken by car to a safe place to ride his bike and can roam no more than 300 yards from home. Even if he wanted to play outdoors, none of his friends strays from their home or garden unsupervised.
The contrast between Edward and George's childhoods is highlighted in a report which warns that the mental health of 21st-century children is at risk because they are missing out on the exposure to the natural world enjoyed by past generations.
Sarah Schindler (Maine) has posted Architectural Exclusion: Discrimination and Segregation Through Physical Design of the Built Environment (Yale Law Journal) on SSRN. Here's the abstract:
The built environment is characterized by man-made physical features that make it difficult for certain individuals — often poor people and people of color — to access certain places. Bridges were designed to be so low that buses could not pass under them in order to prevent people of color from accessing a public beach. Walls, fences, and highways separate historically white neighborhoods from historically black ones. Wealthy communities have declined to be served by public transit so as to make it difficult for individuals from poorer areas to access their neighborhoods.
Although the law has addressed the exclusionary impacts of racially restrictive covenants and zoning ordinances, most legal scholars, courts, and legislatures have given little attention to the use of these less obvious exclusionary urban design tactics. Street grid layouts, one-way streets, the absence of sidewalks and crosswalks, and other design elements can shape the demographics of a city and isolate a neighborhood from those surrounding it. In this way, the exclusionary built environment — the architecture of a place — functions as a form of regulation; it constrains the behavior of those who interact with it, often without their even realizing it. This Article suggests that there are two primary reasons that we fail to consider discriminatory exclusion through architecture in the same way that we consider functionally similar exclusion through law. First, potential challengers, courts, and lawmakers often fail to recognize architecture as a form of regulation at all, viewing it instead as functional, innocuous, and pre-political. Second, even if decision makers and those who are excluded recognize architecture’s regulatory power, existing jurisprudence is insufficient to address its harms.
John Echeverria (Vermont) has posted The Costs of Koontz (Vermont Law Review) on SSRN. Here's the abstract:
Robust enforcement of individual constitutional rights protects the interests that the rights are designed to advance. But robust enforcement of individual rights can undermine other constitutionally protected values and impose other social and economic costs. This article catalogues the steep costs of the Supreme Court’s controversial 2013 decision in Koontz v. St Johns River Water Management District. In that case the Court issued two rulings expanding the rights of property owners under the Fifth Amendment to the U.S. Constitution: first, the Court extended the Nollan/Dolan standards to “monetary exactions;” second, the Court ruled that the Nollan/Dolan standards govern takings claims based on permit denials resulting from property owners’ refusal to accept “demands” for exactions. The Koontz Court paid little attention to the cost of these rulings, but it might well have reached a different result if it had paid more attention to them. These costs include: (1) exacerbated confusion about the scope and purpose of takings law, to the detriment of rule of law values and the reputation of the Supreme Court itself; (2) erosion of the principle of separation of powers due to an unwarranted expansion of the judicial role at the expense of the other two branches of government, (3) undermining of the U.S. system of federalism due to the promulgation of one-size-fits-all national judicial rules that limit local political accountability, diversity and policy experimentation; and (4) less efficient and effective protection and management of the use of land and other natural resources. Justice Elena Kagan predicted that the Court would come to “rue” its decision in Koontz, and the broader perspective suggested by this article might help the Court chart a different course on these issues in the future.
Tuesday, April 28, 2015
Asmara Tekle (Texas Southern) has posted Rectifying These Mean Streets: Percent-for-Art Ordinances, Street Furniture, and the New Streetscape (Kentucky Law Journal) on SSRN. Here's the abstract:
Percent-for-art ordinances beautify the urban public realm by creating dedicated and consistent funding for public art in urban public spaces, such as municipal buildings and parks. They dedicate anywhere from one half to two percent of the funding for qualifying projects to public art. As a consequence, it is a rare airport these days that has not been kissed by percent-for-art’s bounty in the form of whimsical, delightful, even challenging, public art. In contrast, the urban American street largely has been ignored in percent-for-art regimes. The urban street is as much urban public realm as these more conventional public spaces and is one of the city’s largest land uses. All too often, this street is one that is aesthetically mean - characterized by beat-up, pock-marked wooden utility poles, grey, lifeless steel street lights, and traffic signals dangling like last year’s Christmas lights.
The Article asserts that the streetscape and street are as much public realm as the airport, library, and park, and, therefore, are as deserving of public funding for public art as these more conventional public spaces. Currently, a number of percent-for-art regimes appear to be normatively biased against the street, but less so against street furniture. This paper similarly advocates that the definition of public art in a number of percent-for-art regimes be broadened to include the furnishings of the street, the utilitarian - even pedestrian - features of the urban streetscape that comprise so much of it and that do the people’s quiet bidding of collecting trash and recyclables (rubbish and recycling bins), lighting the way (street and pedestrian lights), protecting us from the elements (bus and transit shelters), and ensuring steadiness on our feet (pavement). Though they are utilitarian, street furnishings also have expressive potential and can be re-imagined as new canvases for a more contemporary public art that marries function and form, as compared to the conventional stand-alone piece.
This topic, as well as public art and percent-for-art ordinances generally, remain vastly under-explored in the legal academic literature. To date, there has been one article in a practice-oriented law journal that broaches the topic of public art within the context of percent-for-art fees in private development. This Article seeks not only to contribute to the legal academic conversation surrounding public art and percent-for-art ordinances, but posits that these ordinances should be expanded to capture expressly the streetscape and street furniture. Accordingly, this paper will delve into the literature of disciplines such as law, public art, urban design, and urban planning.
Broadening percent-for-art ordinances in these two ways helps to rectify the all too often aesthetically mean street in urban America. The effect would be to inject a dose of humanity, delight, and play into this major part of the urban public realm. Other reasons include activating and energizing the American street’s potential for street life, thereby helping to strengthen the urban fabric, attract sustained and desirable private investment, and bring art out of the museums and galleries and literally into the streets.
Monday, April 27, 2015
The land use dispute between George Lucas and the wealthy residents of Marin County rages on:
When George Lucas tried to expand his production company studios in California’s wealthy Marin County, the community pushed back. Then the “Star Wars” creator wanted to sell the land to a developer who would build affordable housing. “It’s inciting class warfare,” Carolyn Lenert, then head of the North San Rafael Coalition of Residents, told The New York Times at the time.
Now, two years after that project stalled, Lucas has decided to build the affordable housing and pay for it all himself. “We’ve got enough millionaires here. What we need is some houses for regular working people,” Lucas said through his lawyer Gary Giacomini, CBS affiliate KCBS reported.