Monday, June 18, 2018

Yuille on Dignity Takings, Nuisance Actions, and the National Gang Strategy

YuilleLua K. Yuille (Kansas) has posted Dignity Takings in Gangland's Suburban Frontier (Chicago-Kent Law Review) on SSRN. Here's the abstract:


This paper engages the evolving dignity takings framework, first developed by Bernadette Atuahene, in the context of contemporary American street gangs (e.g. Crips, Bloods, Latin Kings, etc.). Contrary to most popular accounts, it starts with a re-imagined and complicated notion of street gangs that emphasizes not their secondary or tertiary violence and criminality but their primary function as corporate institutions engaged in the sustained, transgressive creation of alternative markets for the creation of the types of property interests that scholars have associated with the development and pursuit of identity and “person-hood.” From this perspective, the paper applies the dignity takings analysis to public nuisance abatement actions (commonly known as gang injunctions), which have become standard tools in the national gang strategy. These civil mechanisms enjoin the conduct and activities of the gangs, as unincorporated entities, and prohibit named individuals (including but not limited to known and suspected gang members) from engaging in a panoply of otherwise legal activities: displaying gang symbols, wearing clothing or colors associated with a gang, possessing tools or objects capable of defacing real or personal property (e.g. pens), appearing in public view with a known gang member. Through qualitative analyses of interviews, court documents, and political hearings, the paper identifies a special form of dehumanization and infantilization that it refers to as "adultization," which demonstrates that the dispossession of identity property associated with suburban gang injunctions depresses self-esteem, erodes self-confidence, damages identity and feelings of community worth, and dehumanizes enjoined individuals in a way that deprives them of their fundamental right of dignity, constituting a clear example of a dignity taking.

June 18, 2018 in Recent Scholarship | Permalink | Comments (0)

Owley and Phelps on Preservation Law and Civil War Monuments

Jessica Owley (Buffalo) and Jess R. Phelps (Dinse, Knapp, & McAndrew) have posted Understanding the Complicated Landscape of Civil War Monuments (Indiana Law Journal Supp.) on SSRN. Here's the abstract:


This essay examines the controversy regarding confederate monuments and attempts to contextualize this debate within the current preservation framework. While much attention has been paid to this topic over the past year, particularly with regard to “public” monuments, such discussion has generally failed to recognize the varied and complicated property law layers involved—which can fundamentally change the legal requirements for modification or removal. We propose a spectrum or framework for assessing these resources ranging from public to private, and we explore the messy space in-between these poles where most monuments actually fall. By highlighting these categories, we provide an initial introduction of a typology for evaluating confederate monuments, serving as a foundation for an exploration into the nature of property law and monument protection.

June 18, 2018 in Recent Scholarship | Permalink | Comments (0)

Sunday, June 10, 2018

The CFPB's Complaint Database and Property Problems

Acting director of the Consumer Financial Protection Bureau (CFPB) Mick Mulvaney has been in the news quite a bit lately. He recently dismissed all 25 members of the agency’s Consumer Advisory Board (a stakeholder group required by the Dodd-Frank Act), and he has also been telling groups and members of Congress that he will likely close the CFPB’s consumer complaint database to the public:

"I don’t see anything in [the law] that says I have to run a Yelp for financial services sponsored by the federal government,” [Mulvaney] said at a banking industry conference in Washington. “I don’t see anything in here that says that I have to make all of those public."

This is truly unfortunate news. The database (which is scrubbed of consumer-identifying information) has been hugely helpful to academics (like me!), consumers, businesses, and policy makers. I recently joined a number of consumer finance law professors in providing comments to the CFPB on why, among other things, the public nature of the complaint database is important and should be maintained.

One of the reasons we argue that the database should remain public has to do with how it serves as a source (and sometimes the only source) of information for consumers in deciding whether to do business with certain firms. This is particularly true when a financial service business doesn't have an established operating history with lots of publicly available information. It's also useful for getting information about financial firms that lack a comprehensive regulator where consumer review and complaint information can be obtained or requested.

For us property folks, consider mortgage lending. Mortgage lending was long dominated by regulated financial institutions, such as banks, thrifts, and credit unions. But in today’s market, nonbank financial companies are the major players. The firm that originates the most mortgage loans in the United States is currently Quicken Loans—a Detroit-based, nonbank company that started making online mortgage loans around the late 1990s.


(Source: Home Mortgage Disclosure Act Data 2008-2017 using Lender ID 7197000003-7 and filtering for "all originated mortgages")

The CFPB’s database gives consumers a place to learn about how people are interacting with Quicken and other online firms that lack brick-and-mortar storefronts. The entries include not only the product type and the issue/problem that the consumer encountered, but also important information about whether the firm responded to the complaint and how it was ultimately resolved. The complaints are also broken down by location and date, thereby allowing a more nuanced analysis of the data for researchers. More information, one hopes, leads to consumers making better and more informed decisions about obtaining a home loan.

(Source: CFPB Complaint Database using Quicken Loans, Inc. and filtering for Product/Sub-product: Mortgages)

And lastly, many of the complaint entries include narratives. Individuals have the option of telling their story when they submit a complaint to the CFPB. These real life stories provide perhaps one of the only venues where the lived experiences behind the complaint numbers are revealed to the public. A few mortgage-related narratives aimed at Quicken Loans so far from 2018 include:

Consumer Complaint No. 2858565 (2018)
XX/XX/XXXX - I applied for a home mortgage with Quicken Loan website and a banker contacted me to ask for all confidential information ( income, debt, credit report, assets, etc ). XX/XX/XXXX - Quicken Loan requested my current credit report. XX/XX/XXXX - Quicken Loan contacted me via online email saying my debt to income ratio can not qualify for mortgage with them. I totally understand the reason and rejection. XX/XX/XXXX - Another Quicken Loan banker " XXXX XXXX '' blind called me that she can help me get the mortgage approved this time and ask me again a lot of information. As she walk through the term and rate and cost, she kept emphasizing the call is recorded and ask for my agreement to do business with Quicken Loan ; she requested {$500.00} deposit using credit card. I disagree with the urgency because I do not have rights to compare bank interest rate offer and terms with others at the moment. I simply ask her to provide me everything on record, such as email, paper mail, etc. She refused and pretend never heard. The worst part is she kept asking me for the agreement to do business with Quicken Loan and ask for credit card for deposit {$500.00}. I deeply concerned about my personal information may be misused by Quicken Loan. Please please investigate this company 's mortgage practice. I believe they are attempting to take advantage of home buyers who is in tight schedule to secure a mortgage for closing. Thank you. The call on XX/XX/XXXX is between XXXX - XXXX EST from number XXXX.

Consumer Complaint No. 2851684 (2018)
After Hurricane Irma left us with property damage I called Quicken Loans to place the mortgage in forbearance. They walked me through the process of how an adjustment would work and applied the forbearance. I've had monthly phone calls where they've checked in and they've asked me each time if it was my primary residence and if it was occupied and each time I've told them it is not my primary residence, but it does have a tenant who is renting from us. This month when the time came to adjust the mortgage they've told me that they can't adjust it because it's a second home so I now have a {$7000.00} balance due, or {$510.00} a month for 12 months ( they adjusted from 6 months to 12 ). I can not afford an extra {$510.00} a month, I don't have that money sitting in my checking account. Quicken 's response is just " sorry we made a mistake, you need to pay for it ''. I've done the right thing in trying to repay the loan on a property that is upside down when everyone else foreclosed or short selled, now my credit and life is ruined. They are engineered to " amaze '', but not in the way their marketing department wants them to be.

Consumer Complaint No. 2829194 (2018)
Around XX/XX/18 I applied for a fha mortgage through quicken loans. After uploading paystubs and a2 's and having a phone conversation with a XXXX XXXX i was given a pre approval. I was then asked to write a letter of explanation as to what happened to the house that it's listed in my bankruptcy case. It was explained that the house was foreclosed. At no point did anyone from quicken loans ask when it was foreclosed. After I found a house, signed a contract to purchased the house, paid {$300.00} for a inspection and gave quicken loans {$500.00} to be used for appraisal was i then told two days later on XX/XX/18 that I was denied because my foreclosure was not three years old. I was told no appraisal had been ordered so i would be getting my money refunded. On that same day XX/XX/XXXX a appraisal was done on the property. At this point I am out {$800.00} for a mortgage that I never should have been pre approved for. They knew I was applying for a fha mortgage, they knew I had a foreclosure and they knew the waiting period for a fha mortgage after foreclosure is three years, yet they didn't ask when the foreclosure took place.

Now of course, these data can tell many different stories. Sometimes the company (like Quicken) did nothing wrong. At other times, consumers have clearly gotten unfairly lost in the lender's corporate bureaucracy. And still at other times it's hard to tell where the break-down happened. It’s up to researchers, industry, advocates, and consumers to interpret the data so that they are useful and help us build a stronger way for Americans to access homeownership online.

But one thing is for sure—closing the complaint database to the public prevents these stories from ever being told. And that serves no one. As of today, the database is still available to the public. We'll see if Mr. Mulvaney follows-through on his threat.

June 10, 2018 | Permalink | Comments (0)

Saturday, May 19, 2018

Walsh and O'Mahony on Property Law Ideologies in England and Ireland

Rachael Walsh (Trinity College) and Lorna Fox O'Mahony (Essex) have posted Land Law, Property Ideologies and the British-Irish Relationship (Common Law World Review) online. Here's the abstract:

This article examines the role of property ideologies, and the local contexts in which they were articulated and applied, in shaping English and Irish land law. Despite their shared histories and influences – from the transplant of the common law system to Ireland to traditions of training Irish lawyers and judges in English universities – the politics of property led Irish and English land law down distinct, and sometimes oppositional, ideological paths in the twentieth century. The politics and practices of land tenure, competing economic and property ideologies, and their direct links to the evolution of national identity and statehood in each jurisdiction, shaped the foundational commitments of English and Irish land law. The article traces the complexities of lived experience in regulating the use and ownership of land, as well as the role of global and local forces – from world-system movements (for example, the influence of European political developments in 1937 on the Irish Constitution) or bi-lateral relationships (for example, the impact of the Irish land wars on the English land reform movement, or the ongoing trade dependency between Britain and Ireland into the twentieth century). Our analysis reveals the multiple competing, and at times overlapping, property ideologies that shape property systems; and the powerful role of events and externalities in contextualising the practical, political, social and symbolic meaning and content of the law as it has evolved in local contexts, and in determining whether, and when, the status quo prevails, or a tipping point for law reform is reached.


May 19, 2018 | Permalink | Comments (0)

Friday, May 18, 2018

NEW BOOK: Insecurity and the Home

Law-homeFor your summer reading, check out this edited book by Helen Carr (Kent), Brendan Edgeworth (New South Wales), and Carolina Hunter (York) titled Law and the Precarious Home: Socio Legal Perspectives on the Home in Insecure Times (Hart Publishing). Here's a summary: 

This book explores the emergent and internationally widespread phenomenon of precariousness, specifically in relation to the home. It maps the complex reality of the insecure home by examining the many ways in which precariousness is manifested in legal and social change across a number of otherwise very different jurisdictions. By applying innovative work done by socio-legal scholars in other fields such as labour law and welfare law to the home, Law and the Precarious Home offers a broader theoretical understanding of contemporary 'precarisation' of law and society. It will enable reflections upon differential experience of home dependent upon class, race and gender from a range of local, national and cross-national perspectives. Finally it will explore the pluralisation of ideas of home in subjective experience, social reality and legal form. The answers offered in this book reflect the expertise and standing of the assembled authors who are international leaders in their field, with decades of first-hand practical and intellectual engagement with the area.

The table of contents is as follows:

1. Introducing Precarisation: Contemporary Understandings of Law and the Insecure Home
Helen Carr, Brendan Edgeworth and Caroline Hunter

Part I: Understanding Precarisation
2. Precarious Homes: The Sharing Continuum
Sarah Blandy
3. Property, Well-being, and Home: Positive Psychology and Property Law's Foundations
Nestor M Davidson

Part II: Rental Security
4. The 'Affordable Alternative to Renting': Property Guardians and Legal Dimensions of Housing Precariousness
Caroline Hunter and Jed Meers
5. Public Housing Insecurity in New South Wales: An Historical Overview (1971–2014)
Brendan Edgeworth
6. The Tenant's Home and the Landlord's Property-The Polish Struggle to Achieve a Balance of Rights
Magdalena Habdas

Part III: The Home and Governmental Precarisation
7. Law and the Precarious Home: A Case Study of Thermal Inefficiency in English Homes
Helen Carr
8. Governing Risk and Uncertainty: Financialisation and the Regulatory Framework of Housing Associations
Richard Goulding
9. Safe and Sound: Precariousness, Compartmentation and Death at Home
Edward Kirton-Darling

Part IV: Global/Local Precariousness
10. The UK as a Precarious Home
Richard Warren
11. Precarious Home and Institutional Ambiguity in China's Urbanisation
Ting Xu and Wei Gong
12. On Shaky Ground: Homes as Socio-Legal Spaces in a Post-Earthquake Environment
Ann Dupuis, Suzanne Vallance and David Thorns

Part V: Resistance and Strategies
13. Precarity and Defi ance in Temporary Accommodation: The King Hill Hostel Campaign, 1965–66
Laura Binger
14. Responding to the Precarisation of Housing: A Case Study of PAH Barcelona
Gabriele D'Adda, Lucia Delgado and Eduard Sala
15. Returning Home?
Danie Brand

May 18, 2018 | Permalink | Comments (0)

Monday, May 14, 2018

CFP: Law and Communities Conference @Bar Ilan University Law


We are delighted to announce that, on Sunday 3 and Monday 4 June 2018, the Bar Ilan University law school and the Center for Jewish and Democratic law will be hosting an international conference titled “Communities & the Law”. The conference will bring together scholars from all branches of law, including private law, constitutional law, local government law and technology to discuss the role of communities in the legal, economic and political spheres.   

A series of panels on both conference’s days will include the role of communities in private law (focusing on property law and contracts law); local governments as the law of communities, communities in a multicultural world; Technology, Communities & Cooperation, and feminist approaches to communities. 

Confirmed speakers and panelists include; Prof Yochai Benkler (Harvard Law School); Prof Gregory Alexander (Cornell University Law School); Prof Hanoch Dagan (Tel Aviv University Law School); Prof. Richard Briffault (Columbia Law School); Prof. Bernadette Atuahene (Chicago-Kent College of law); Prof. Yishai Blank (Tel Aviv University), Prof. Chandran Kukatas (LSE), Prof. Aditi Bagchi (Fordham University); Prof. Amnon Lehavi (IDC Herzliya); Prof. Nadav Shoked (Northwestern University); Prof. Menachem Mautner (Tel Aviv University), Prof. Yuli Tamir (Shenkar College), Prof. Shahar Lifshitz (Bar-Ilan University), Prof. Ruth Halperin Kaddari (Bar Ilan University), Prof. Jay R. Berkovitz (University of Massachusetts); Dr. Shai Stern (Bar Ilan University), Prof. Amihai Radzyner (Bar-Ilan University);  Dr. Shelly Kreiczer Levy (College of Law & Business); Dr. Rivka Brot (Bar-Ilan University); Dr. Yotam Kaplan (Bar-Ilan University); Prof. Haim Shapira (Bar-Ilan University).

The full program of the conference is available here.

Please direct all further enquiries to the conference organizer, Dr. Shai Stern, Bar Ilan University.

May 14, 2018 in Conferences | Permalink | Comments (0)

Tuesday, May 8, 2018

Save the Date: 2019 International Conference on Planning, Law, and Property Rights

This just in from Tim Mulvaney (Texas A&M):


For more info, click here.

May 8, 2018 | Permalink | Comments (0)

Monday, May 7, 2018

Call for Papers: AALS Real Estate Transactions Section 2019 Program


It's that time of year: AALS Call for Papers season! Here's the CFP from the Real Estate Transactions Section:

Access + Opportunity + Choice:
Housing Capital, Equity, and Market Regulation
in the Trump Era

Program Description:

The year 2018 marks the 10th anniversary of the 2008 housing crisis—an event described as the most significant financial and economic upheaval since the Great Depression. This year is also the 50th anniversary of the Fair Housing Act, which upended many decades of overt housing discrimination. Both events remind us of the significant role that housing has played in the American story—both for good and for bad.

Of the many aspects of financial reform that followed 2008, much of the housing finance-related work was centered around mortgage loan origination and creating incentives and rules dealing with underwriting and the risk of moral hazard. Some of these reforms include the creation of the qualified mortgage safe-harbor and the skin-in-the-game risk retention rules. But when it came to the secondary mortgage market, little significant reform was undertaken. The only government action of any serious importance related to the federal government—through the Federal Housing Finance Agency (FHFA)—taking over control of Fannie Mae and Freddie Mac. This major government intervention into the workings of the country’s two mortgage giants yielded takings lawsuits, an outcry from shareholders, and the decimation of the capital reserves of both companies. Despite Fannie and Freddie having both paid back all the bailout funds given to them, the conservatorship remains in place to this day.

In the area of fair housing, the past several years saw the Texas Department of Housing and Community Affairs v. Inclusive Communities case whereby the U.S. Supreme Court upheld (and narrowed the scope of) the disparate impact theory under the Fair Housing Act. We also saw efforts aimed at reducing geographic concentrations of affordable housing through the Obama administration’s promulgation of the affirmatively furthering fair housing rule.

Yet, meaningful housing reform remains elusive. None of the major candidates in the most recent presidential election meaningfully addressed the issue in their policy platforms, and a lack of movement in resolving the Fannie/Freddie conservatorship is viewed as a major failure of the Obama administration. Additionally, housing segregation and access to affordable mortgage credit continues to plague the American economy.

In recent months, the topics of housing finance reform and providing Americans with credit (including mortgage credit) choices have been a point of focus on Capital Hill and in the Trump White House. Will these conservations result in meaningful legislation or changes in regulatory approaches in these areas? Will programs like the low-income-housing tax credit, the CFPB’s mandatory underwriting requirements, public housing subsidies, and the government’s role in guaranteeing and securitizing mortgage loans significantly change? Where are points of possible agreement between the country’s two major parties in this area and what kinds of compromises can be made?

Call for Papers:

The Real Estate Transactions Section looks to explore these and related issues in its 2019 AALS panel program titled: “Access + Opportunity + Choice: Housing Capital, Equity, and Market Regulation in the Trump Era.” The Section invites the submission of abstracts or full papers dealing broadly with issues related to real estate finance, the secondary mortgage market, fair housing, access to mortgage credit, mortgage lending discrimination, and the future of mortgage finance. There is no formal paper requirement associated with participation on the panel, but preference will be given to those submissions that demonstrate novel scholarly insights that have been substantially developed. Untenured scholars in particular are encouraged to submit their work. Please email your submissions to Chris Odinet at by Friday, August 3, 2018. The selection results will be announced in early September 2018. In additional to confirmed speakers, the Section anticipates selecting two to three papers from the call.

Confirmed Speakers:

Rigel C. Oliveri, Isabelle Wade and Paul C. Lyda Professor of Law, University of Missouri School of Law

Todd J. Zywicki, Foundation Professor of Law, George Mason University Antonin Scalia Law School

David Reiss, Professor of Law and Research Director for the Center for Urban Business Entrepreneurship, Brooklyn Law School


Per AALS rules, only full-time faculty members of AALS member law schools are eligible to submit a paper/abstract to Section calls for papers. Faculty at fee-paid law schools, foreign faculty, adjunct and visiting faculty (without a full-time position at an AALS member law school), graduate students, fellows, and non-law school faculty are not eligible to submit.

All panelists, including speakers selected from this Call for Papers, are responsible for paying their own annual meeting registration fee and travel expenses.

May 7, 2018 | Permalink | Comments (0)

Wednesday, May 2, 2018

Franzese on Tenant Blacklisting

PaulaPaula Franzese (Seton Hall) has posted A Place to Call Home: Tenant Blacklisting and the Denial of Opportunity (Fordham Urban Law Journal) on SSRN. Here's the abstract:

Tenants named in an eviction proceeding, no matter the outcome or the context, find themselves placed on registries collected and maintained by private "tenant reporting services." Tenants whose names appear on these so-called "blacklists" are often denied future renting opportunities, stigmatized and excluded from thepromise of fair housing. At a time of continued rollbacks and dramatic cuts to housing voucher programs andaffordable housing options, a candidate named on a dreaded blacklist can find herself on a quick path tohomelessness. That tenant blacklisting has been allowed to persist is emblematic of how powerless many tenants - and particularly public housing tenants - have become. This paper endeavors to give voice to some of the stories of tenants affected by the practice. It then sets forth an agenda for reform.

She is also working with the mayor of Newark on an initiative to provide free legal counsel to certain individuals facing eviction. Paula has written about this effort here and as follows:

Our State's courts have become inundated with eviction actions, as tenants struggle to make ends meet. In Newark alone, tenant evictions affect 30,000 residents annually, destabilizing families and neighborhoods, targeting the most vulnerable and compounding the crisis in homelessness. 

. . . 

Against that bleak landscape, I applaud Newark Mayor Ras Baraka's commitment to bring to fruition a right to counsel for Newark tenants most at risk of eviction - the disabled, the elderly, and those with incomes no more than two times the federal poverty level. The city's initiative will give voice to tenants otherwise silenced by a system that too often is stacked against them. It is a major step on behalf of fundamental fairness and equal access to justice and should serve as a model for State-wide implementation. 

May 2, 2018 | Permalink | Comments (0)

Tuesday, May 1, 2018

Professors' Corner: Current Developments in Title Insurance Law


Tuesday, May 8, 2018
12:30 – 1:30 pm ET
Speakers: Professor Joyce Palomar, University of Oklahoma College of Law and Professor Barlow Burke, American University Washington College of Law
Moderator: Professor Wilson Freyermuth, University of Missouri School of Law
Professors Palomar and Burke are the country’s most authoritative scholars on the law of title insurance. In May’s Professors Corner program, they will discuss recent developments in title insurance law, focusing most significantly on the proposed changes to the ALTA Owner’s Policies and Loan Policies.
Register for This Program
Please note that CLE credit is not offered for this program or any Professors' Corner programs.

May 1, 2018 | Permalink | Comments (0)

Sunday, April 15, 2018

Widener on Leasing Law and Marijuana-Related Businesses

Joint-canFriend of the blog and Phoenix lawyer Michael Newton Widener just published a book titled Joint Tenancies: Property Leasing in Cannabis Commerce with ABA Book Publishing and sponsored by the Section of State and Local Government Law. Cribbing from the abstract:

This book is not legal advice delivered or offered to anyone. Instead, Joint Tenancies seeks to teach readers about issues to take to heart in the Cannabis industry real estate leasing process and to be successful in doing so. Toward the end of Joint Tenancies, some forms are included that offer ideas for how a landlord might treat this type of transaction. Using these forms, or anything like them, won’t guarantee that a landlord avoids forfeiture or personal criminal prosecution if that landlord veers off the regulatory rails. Any potential commercial landlord must proceed with extreme caution. Part of that process is to obtain competent legal advice from an experienced attorney in the local community.

Inside this book readers will find sound advice, for example, "Landlords should not be seduced by potential rent rewards and ignore risk factors like losing the property’s insurance coverage. Early-warning signals to landlords will come from the office of the state’s U.S. Attorney or local DEA officials in each state. Landlords must read these signals so that they make informed decisions before signing any lease proposal."

April 15, 2018 | Permalink | Comments (0)

Friday, April 13, 2018

Property Lawyer Gone Bad

It's not often that I can make quitclaim deeds look like a sexy topic in Property.  This semester in particular, the conversation about warranty of title (or lack thereof) dragged on for a good bit longer than I had planned.  As always happens, one student asked why anyone would transfer property via a quitclaim deed.  While I was explaining that the value of the interest an individual has in a tract of land might be less than the cost of determining the exact scope of that interest, I could see the glaze over my students' eyes growing.  I was saved by the bell, but fretted returning the next day to a bored group of students.  

That is when this news story hit the press.  

A lawyer from near New Orleans wanted to make a buck and what better way to do it than through a few quitclaim deeds.  More than a decade ago, the property lawyer decided to write up some false quitclaim deeds on a few properties that appeared to be abandoned.  The lawyer put his business partner's name in as the seller, the lawyer's name in as the buyer, put the deed in valid form under Louisiana, and presto!  The quitclaim deeds were filed in the public records and a couple of years later, the lawyer aka alleged buyer of the abandoned properties sold the properties to unsuspecting third parties.  Making up quitclaim deeds and selling them off became like going to the ATM.  

Fast forward to the present day when those unsuspecting third party buyers resell the property to new unsuspecting third parties who are unable to get clean title to the properties and the gig is up.  Louisiana has a notably long period for adverse possession (or acquisitive prescription as it is referred to in this civil law jurisdiction), so the new buyers can't be saved by adverse possession.  The original attorney re-enters the scene and files a defamation lawsuit against all of the buyers of the property.  Why?  Because the buyers of the property have been asserting that the lawyer made the original sin in this whole transaction.  To top it all off, the lawyer has a bizarre coffee shop meeting with the buyers he is suing for defamation.  During the coffee shop meeting, the lawyer does a time warp to the 1990s by literally giving the buyers an Ace Ventura loser sign.  (Seriously.  Read the story.  The loser part is even included.)

Needless to say, the lawyer involved is in a heap of trouble, facing possible disbarment.  And the buyers aren't much better off, at least financially.  But my Property class, I am happy to say, is now wide awake and totally enthralled in quitclaim deeds.  

April 13, 2018 | Permalink | Comments (0)

Tuesday, April 10, 2018

New Book on Property and Human Flourishing by Alexander

PropandHumFlourGregory Alexander's (Cornell) latest book, Property and Human Flourishing (Oxford University Press), just hit the shelves.  The book continues Greg's scholarship on progressive property by offering an alternative way of understanding the moral issues of private ownership, namely that human flourishing is property's moral foundation.  As Greg has done in previous articles, he develops a theory that connects ownership and human flourishing with obligations.  Greg asserts in the book that "[o]wners have obligations to members of the communities that enabled the owners to live flourishing lives by cultivating in their community members certain capabilities that are essential to leading a well-lived life. These obligations are rooted in the interdependence that exists between owners and their community members, and inherent in the human condition."  Moreover, the book focuses on practical matters by discussing the implications for a wide variety of property issues including, but not limited to, expropriation, eviction, mortgage foreclosure, and homelessness.  

This past January, Greg visited Tulane to give a faculty workshop, and I had the privilege of discussing with Greg Chapter Eight of his new book, titled "Of Buildings, Art, and Sperm: The Right to Destroy and the Duty to Preserve."  In this chapter, Greg sought to reframe the discussion on the right to destroy in the context of human flourishing.  Specifically, Greg examined three types of property where destruction (and the legal fallout thereafter) arises with some frequency:  historic preservation, art, and embryos.  My take away from reading the chapter was that regardless if one agrees or disagrees with how the Aristotelian notion of human flourishing is being applied to property law, Greg's writing challenges our basic thinking about property law and, more importantly, the goals that should underpin our property doctrines.  As Hanoch Dagan (Tel-Aviv University) said about Property and Human Flourishing, the book "offers a progressive alternative to the dominant libertarian and welfarist conceptions of property. This is a major work, providing a comprehensive defense and a nuanced refinement of Alexander's innovative human flourishing theory of property."

Congratulations, Greg, on a great new piece of property law scholarship!


April 10, 2018 | Permalink | Comments (0)

Monday, April 9, 2018

Professors' Corner: Evictions and Tenant Blacklisting


A Place to Call Home: Tenant Blacklisting and the Denial of Opportunity


Professor Paula Franzese, Peter W. Rodino Professor of Law, Seton Hall Law


Professor James C. Durham, University of Dayton School of Law

Every day across the United States countless residential tenants face the prospect of eviction. Tenants named in an eviction proceeding, no matter the outcome or the context, find themselves placed on damning registries collected and maintained by "tenant reporting services." Tenants whose names appear on these so-called "blacklists" are denied future renting opportunities, stigmatized and excluded from the promise of fair housing. To compound the problem, the landlord-tenant laws, meant to be tenant-protective, exacerbate the crisis in housing displacement. An empirical study that that I recently completed revealed that of the 40,000 residential eviction actions brought in one county in New Jersey in one year, only 80 had tenants asserting as a defense to non-payment of rent landlord's breach of the implied warranty of habitability. This no matter the significant reported instances of derelict and grossly substandard rental housing known to exist within that same county.

Landlord-tenant laws, as currently constituted and enforced, pose formidable bars to tenant enforcement of what we presume to be assured rights. This webinar will examine three of those impediments: 1.) the rent deposit requirement, 2.) tenant blacklisting and 3.) the absence of counsel for tenants facing eviction. Approximately 90 percent of landlords have legal counsel while 90 percent of tenants do not. Cities like New York and San Francisco have now implemented programs to provide counsel to low-income tenants. I am at work now on the promulgation of a similar program for the city of Newark.

Register now for this FREE program and join us every second Tuesday of each month for a discussion of these and other current issues.  (The content of this program does not meet requirements for continuing legal education (CLE) accreditation. You will not receive CLE credit for this program).

April 9, 2018 | Permalink | Comments (0)

Wednesday, April 4, 2018

CFP: Regulatory Issues in Property Law

CCPL Poster

The Cambridge Center for Property Law is encouraging and accepting submissions on any contemporary subject relating to land and property law from academics and practitioners from around the world for their upcoming conference on Regulatory Issues in Property Law on May 25-26, 2018.  Areas that are of particular interest include planning law, housing law, and the relationship  between property law and human rights.

Submissions should include an abstract of no more than 200 words, including: (1) the name of the submitting author and their institution or organisation and (2) their contact details.  Abstracts may be emailed to Douglas Maxwell (dskm2 at  The deadline for submissions is Wednesday, April 11 at 6:00 PM.  Places are limited so send in your abstracts ASAP!  

For more information, download Cambridge University Property Law 2018 Brochure.

April 4, 2018 | Permalink | Comments (0)

Monday, March 19, 2018

NEW BOOK: Property Rights and Settlement in the Negev Region

Emptied_landsAlexandre Kedar (University of Haifa), Ahmad Amara (Van Leer Jerusalem Institute), and Oren Yiftachel (Ben-Gurion University) have published Emptied Lands: A Legal Geography of Bedouin Rights in the Negev (Stanford University Press 2018). Here's a summary of the project

Emptied Lands investigates the protracted legal, planning, and territorial conflict between the settler Israeli state and indigenous Bedouin citizens over traditional lands in southern Israel/Palestine. The authors place this dispute in historical, legal, geographical, and international-comparative perspectives, providing the first legal geographic analysis of the “dead Negev doctrine” used by Israel to dispossess and forcefully displace Bedouin inhabitants in order to Judaize the region. The authors reveal that through manipulative use of Ottoman, British and Israeli laws, the state has constructed its own version of terra nullius. Yet, the indigenous property and settlement system still functions, creating an ongoing resistance to the Jewish state. Emptied Lands critically examines several key land claims, court rulings, planning policies and development strategies, offering alternative local, regional, and international routes for justice.

Click here for purchase information (receive a 20% discount when you use the code "EMPTIED").




March 19, 2018 in Books | Permalink | Comments (0)

Monday, March 12, 2018

PROFESSORS' CORNER: The Uniform Directed Trust Act


The Recently Approved Uniform Directed Trust Act: A View from the Chair and Reporter


John D. Morley, Professor of Law, Yale Law School

Robert H. Sitkoff, John L. Gray Professor of Law, Harvard Law School


David English, University of Missouri

Program Description
Across the centuries, the law of trusts evolved on the assumption that full power to administer a trust would belong to a trustee. A directed trust departs from this tradition by granting a power over a trust to a person who is not a trustee. The fundamental policy question arising from the emergence of directed trusts is how the law of trusteeship should be divided among a directed trustee and trust director. The Uniform Law Commission has just finished work on the Uniform Directed Trust Act (UDTA), which provides clear, practical, and comprehensive solutions to all of the major legal difficulties in a directed trust. At the same time, the UDTA offers a host of technical innovations that dramatically improve on existing directed trust statutes, and that point to a variety of drafting practices for directed trusts that could be improved in all states. In this session, Professors Robert Sitkoff (Harvard) and John Morley (Yale), respectively the Chair and the Reporter for the UDTA drafting committee, will discuss the UDTA and what it means for directed trust practice.

Register now for this FREE program and join us every second Tuesday of each month for a discussion of these and other current issues.  (The content of this program does not meet requirements for continuing legal education (CLE) accreditation. You will not receive CLE credit for this program).

March 12, 2018 | Permalink | Comments (0)

Friday, March 9, 2018

Rossi and Serkin on Using Land Use to Police Energy Externalities

Jim Rossi (Vanderbilt) and Chris Serkin (Vanderbilt) have posted Energy Exactions (Cornell Law Review) on SSRN. Here's the abstract:

Exactions are demands levied on residential or commercial developers to force them, rather than a municipality, to bear the costs of new infrastructure. Local governments commonly use them to address the burdens that growth places on schools, transportation, water, and sewers. But exactions almost never address energy needs, even though local land use decisions can create significant externalities for the power grid and for energy resources.

This Article proposes a novel reform to land use and energy law: “energy exactions”—understood as local fees or timing limits aimed at addressing the energy impacts of new residential or commercial development. Energy exactions would force developers to internalize the costs of growth on the energy grid, generate important information about community energy needs and their externalities, decentralize risk taking, promote technological change in new sources of power supply, and stimulate useful forms of regulatory competition between local communities and state utility regulators. In the process, they would induce energy conservation in the development of new residential and commercial buildings.

The Article defends the implementation of energy exactions by local governments. It then analyzes the potential legal hurdles energy exactions face, including their authorization, preemption by state utility laws, and implications under the Takings Clause of the U.S. Constitution. Energy exactions provide local governments a unique, pragmatic and valuable tool to integrate community values into energy grid planning, promote demand reduction, and enable new investments in low-carbon energy infrastructure.

March 9, 2018 | Permalink | Comments (0)

Tuesday, March 6, 2018

NEW BOOK: Saxer and Rosenbloom on Economic, Environmental, and Social Systems

SaxerShelley Ross Saxer (Pepperdine) and Jonathan Rosenbloom (Drake) just finished a book titled Social-Ecological Resilience and Sustainability (Aspen Coursebook Series). Great work to these two! Check it out below:

Social-Ecological Resilience and Sustainability by Shelley Ross Saxer and Jonathan Rosenbloom is designed to help students understand and address new, changing, and complex economic, environmental, and social systems. This book introduces resilience and sustainability as analytical frameworks and illustrates how these concepts apply in various contexts: water, food, shelter/land use, energy, natural resources, pollution, disaster law, and climate change. The first two chapters (Part I) provide students with a conceptual foundation to explore the interdisciplinary nature of resilience and sustainability and the meanings of, complexities embedded in, and the overlap and differences between these frameworks. Each of the remaining eight chapters (Part II) views resilience and sustainability in a specific law and policy context. Strategically placed throughout Part II, the authors describe eight useful tools — “Strategies to Facilitate Implementation”—to help identify, assess, integrate, or utilize resilience and sustainability as analytical frameworks.

Key Features:

  • A two-part approach that first provides students with a conceptual foundation and then allows students to view resilience and sustainability in eight law and policy contexts (described above)
  • Numerous graphics throughout to illustrate concepts, depict events described, and otherwise enliven the content
  • Case studies that examine human decisions that led to unsustainable and non-resilient systems and societies
  • New and innovative ways to explain complex systems and in turn rethink traditional notions of law and policy

March 6, 2018 | Permalink | Comments (0)

Wednesday, February 28, 2018

CFP: Property Rights and Human Rights: New Possibilities in an Age of Inequality


Monash University Law Chambers, Melbourne, Australia: August 9-10 2018

Call for Papers 

The Monash University Centre for Commercial Law and Regulatory Studies, and the Castan Centre for Human Rights Law, are hosting a conference on Property Rights and Human Rights: New Possibilities in an Age of Inequality on August 9-10, 2018.

The debate on property rights and human rights has renewed relevance as a result of global inequality, mass movements of people, and modern forms of slavery. While the underlying issue remains tensions between the distributional consequences of property and property as a source of freedom from interference, the context has shifted from protection against arbitrary state takings to the emancipatory possibilities (and limitations) of property for people often excluded by the state, including refugees and the internally displaced, ethnic minorities and indigenous peoples, victims of human trafficking, farmers and forest-dwellers, and households subject to disability or extreme poverty.

Recent scholarly responses to the new contexts of property have moved from libertarian conceptions, which focus on safeguards against the state, to progressive accounts that incorporate social obligations, and respect for interpersonal relationships, into the definition of property itself. A common thread for progressive accounts is the re-emergence of natural law conceptions, which bypass the state as a source of real or intellectual property rights, and re-configure property to enhance compatibility with human rights, including international human rights law. However, residual issues remain as to competing “essentialist” perspectives on property law, including the status of private rights to exclude, and the role of the state as a source of freehold or monopoly rights. This conference explores the new possibilities of property rights and human rights in an age of inequality with reference to the following topics:

  • Property and distributive justice.
  • Property, sovereignty and poverty.
  • Property and human trafficking.
  • Property, disability and discrimination.
  • Property and indigeneity.
  • Land grabs and international human rights law.

Confirmed speakers include

  • Gregory Alexander, A. Robert Noll Professor of Law, Cornell University;
  • Robin Paul Malloy, E.I. White Chair and Distinguished Professor of Law, Syracuse University; and
  • Hanoch Dagan, Stewart and Judy Colton Professor of Legal Theory and Innovation, Tel-Aviv University.

Important Dates and Details

Deadline for Abstracts: 20 March 2018

Submit abstract here.

Announcement of Accepted Abstracts: 30 March 2018

Deadline for Full Text Papers: 15 July 2018

Dates of Conference: 9-10 August 2018

Refer to the conference website for more information and to register for the conference 


  • Early registration $200 AUD (closes30 March 2018.)
  • Full registration rate $250AUD (closes 15th July, 2018)
  • Students (JD, PhD, SJD or other program) is $80AUD (closes 15th July, 2018).

February 28, 2018 | Permalink | Comments (0)