PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

Monday, September 21, 2015

Hudson on Conservative Environmental Law

HudsonBlake Hudson (LSU) has posted Relative Administrability, Conservatives, and Environmental Regulatory Reform (Florida Law Review) on SSRN.  Here's the abstract:

Both critics and supporters of federal environmental law have called for its reform. Conservative scholars and policy-makers in particular have called for reform due to the size, scope, and cost of the federal environmental bureaucracy. To date, however, conservatives have offered no meaningful, realistic alternative environmental protection policies. This article argues that greater use of geographic delineation policies at the state and local level offer an important opportunity to reduce the size, scope, and cost of the federal environmental bureaucracy while at the same time achieving the environmental gains sought by the staunchest supporters of federal environmental law. To date, conservative scholars and policy-makers have not been supportive of these long-available policies, rendering them largely unutilized — contributing to the growth of federal environmental intervention. This article argues that geographic delineation policies implemented at the state and local level are actually consistent with a number of the most valued principles of conservatism, primarily due to their high relative administrability when compared to federal statutes. That is, the administration of these policies achieves the most environmental gain at the lowest cost, and geographic delineations implemented through state and local land use planning offer the best hope for conservatives who would see the nation’s system of environmental laws reformed.

September 21, 2015 | Permalink | Comments (0)

Foster & Iaione on The City as a Commons

Sheila Foster (Fordham) & Christian Iaione (Marconi University) have posted The City as a Commons on SSRN.  Here's the abstract:

As rapid urbanization intensifies around the world, so do contestations over how city space is utilized and for whose benefit urban revitalization is undertaken. The most prominent sites of this contestation are efforts by city residents to claim important urban goods — open squares, parks, abandoned or underutilized buildings, vacant lots, cultural institutions, streets and other urban infrastructure — as collective, or shared, resources of urban communities. The assertion of a common stake or interest in resources shared with others is a way of resisting the privatization and/or commodification of these resources. We situate these claims within an emerging “urban commons” framework embraced by progressive reformers and scholars across multiple disciplines. The urban commons framework has the potential to provide a discourse, and set of tools, for the development of revitalized and inclusive cities. Yet, scholars have failed to fully develop the concept of the “urban commons,” limiting its utility to policymakers.

In this article, we offer a pluralistic account of the urban commons, including the idea of the city itself as a commons. We find that, as a descriptive matter, the characteristics of some shared urban resources mimic open-access, depletable resources that require a governance or management regime to protect them in a congested and rivalrous urban environment. For other kinds of resources in dispute, the language and framework of the commons operates as a normative claim to open up access of an otherwise closed or limited access good. This latter claim resonates with the social obligation norm in property law identified by progressive property scholars and reflected in some doctrines which recognize that private ownership rights must sometimes yield to the common good or community interest.

Ultimately, however, the urban commons framework is more than a legal tool to make proprietary claims on particular urban goods and resources. Rather, we argue that the utility of the commons framework is to raise the question of how best to manage, or govern, shared or common resources. The literature on the commons suggests alternatives beyond privatization of common resources or monopolistic public regulatory control over them. We propose that the collaborative and polycentric governance strategies already being employed to manage some natural and urban common resources can be scaled up to the city level to guide decisions about how city space and common goods are used, who has access to them, and how they are shared among a diverse population. We offer two evolving models of urban commons governance in cities around the world as examples of these strategies when scaled up to the city level: the sharing city and the co-city.

September 21, 2015 | Permalink | Comments (0)

Friday, September 18, 2015

Who Owns Banksy's Graffiti?


PatentlyO describes a fascinating landlord/tenant dispute:

Banksy is a pseudonymous British street artist known for satirical and subversive graffiti. In 2014 one of his paintings appeared on the back wall of a game arcade in Folkestone(See image).  The building was owned by Stonefield Estates Ltd but the entire building is subject to a 20-year lease to Dreamland Leisure.  Seeking to capitalize on the work, Dreamland had the section of wall removed and put up for sale. (The Wall Now) Dreamland justified this move based upon the lease, which included a provision that would arguably require the tenant to remove or paint-over the artwork.

The Landlord (Lessor) transferred its rights to the work in quitclaim form to the Creative Foundation – a registered charity seeking to promote the art scene in Folkestone – who then sued Dreamland for possession.

The Landlod ends up winning the case.  The case is fascinating for the variety of topics it touches: the tension between leases as contracts and as conveyances, the duty to repair, accession, fixtures, trespass, and remedies.

September 18, 2015 | Permalink | Comments (0)

Reiss on The Federal Housing Administration and the Low Down Payment Loan

Reiss_davidDavid Reiss (Brooklyn) has posted Underwriting Sustainable Homeownership: The Federal Housing Administration and the Low Down Payment Loan (Georgia Law Review) on SSRN.  Here's the abstract:

The United States Federal Housing Administration (“FHA”) has been a versatile tool of government since it was created during the Great Depression. The FHA was created in large part to inject liquidity into a moribund mortgage market. It succeeded wonderfully, with rapid growth during the late 1930s. The federal government repositioned it a number of times over the following decades to achieve a variety of additional social goals. These goals included supporting civilian mobilization during World War II; helping veterans returning from the War; stabilizing urban housing markets during the 1960s; and expanding minority homeownership rates during the 1990s. It achieved success with some of its goals and had a terrible record with others. More recently, the FHA is in the worst financial shape it has ever been in.

Today’s FHA suffers from many of the same unrealistic underwriting assumptions that have done in so many other lenders during the 2000s. It has also been harmed, like other lenders, by a housing market as bad as any seen since the Great Depression. As a result, the federal government recently announced the first bailout of the FHA in its history. At the same time that it has faced these financial challenges, the FHA has also come under attack for the poor execution of some of its policies to expand homeownership. Leading commentators have called for the federal government to stop using the FHA to do anything other than provide liquidity to the low end of the mortgage market. These critics rely on a couple of examples of programs that were clearly failures but they do not address the FHA’s long history of undertaking comparable initiatives. This article takes the long view and demonstrates that the FHA has a history of successfully undertaking new homeownership programs. At the same time, the article identifies flaws in the FHA model that should be addressed in order to prevent them from occurring if the FHA were to undertake similar initiatives in the future.

In order to demonstrate this, the article first sets forth the dominant critique of the FHA. Relying on often overlooked primary sources, it then sets forth a history of the FHA and charts its constantly changing roles in the housing finance sector. In order to give a more detailed picture of the federal government’s role in housing finance, the article also incorporates the scholarly literature regarding (i) the intersection of race and housing policy and (ii) the economics and finance literature regarding the role that down payments play in the appropriate underwriting of mortgages for low- and moderate-income households. The article concludes that the FHA can responsibly address objectives other than the provision of liquidity to the residential mortgage market. It further proposes that FHA homeownership programs for low- and moderate-income families should be required to balance access to credit with households’ ability to make their mortgage payments over the long term. Such a proposal will ensure that the FHA extends credit responsibly to low- and moderate-income households while minimizing the likelihood of future bailouts.

September 18, 2015 | Permalink | Comments (0)

Dolin & Manta on Taking Patents

Gregory Dolin (Baltimore) & Irina Manta (Hofstra) have posted Taking Patents (Washington and Lee Law Review) on SSRN.  Here's the abstract:

The America Invents Act (AIA) was widely hailed as a remedy to the excessive number of patents that the Patent & Trademark Office issued, and especially ones that would later turn out to be invalid. In its efforts to eradicate “patent trolls” and fend off other ills, however, the AIA introduced serious constitutional problems that this Article brings to the fore. We argue that the AIA’s new “second-look” mechanisms in the form of Inter Partes Review (IPR) and Covered Business Method Review (CBMR) have greatly altered the scope of vested patent rights by modifying the boundaries of existing patents. The changes in the boundaries of the patent grant made it significantly more likely that the patent owner would see his patent invalidated. This new state of affairs has already reduced the value of some patents that were obtained before the AIA became effective, and further declines will likely follow. We show on the basis of constitutional takings jurisprudence that the loss of value that some patent owners have suffered as a result of the new procedures — even if their patents have not been specifically subjected to them — potentially compare with physical takings and definitely fall under the umbrella of regulatory takings. The way to remedy these failings is for the government either to change its procedures or provide just compensation to the patent owners that received patents from the PTO before the enactment of the AIA.

September 18, 2015 | Permalink | Comments (0)

Wednesday, September 16, 2015

Real Estate Agents Continue to Discriminate

A New York Times editorial summarizes a recent lawsuit by the National Fair Housing Alliance:

Americans commonly — and mistakenly — believe that well-to-do black people no longer face the kind of discrimination that prevents them from living anywhere they can afford. But a federal housing discrimination complaint filed last week by the National Fair Housing Alliance shows that this toxic problem is very much with us, nearly 50 years after Congress outlawed housing discrimination in the Fair Housing Act.

The complaint, and the investigations that led to it, shows how real estate agents promote segregation — and deny African-Americans the opportunity to buy into high-value areas that would provide better educations for children and a greater return on their investments.

Over the course of nearly a year, the alliance reports, black and white testers posing as home buyers had drastically different experiences when they contacted a real estate company near Jackson, Miss. Agents often declined to show properties to black customers who were better qualified than whites, with higher incomes, better credit scores and more savings for down payments. Meanwhile, white testers who had expressed interest in properties in the majority-black city of Jackson were steered into majority-white communities elsewhere.

[...] Despite being better qualified financially, black and Latino testers were shown fewer homes than their white peers, were often denied information about special incentives that would have made the purchase easier, and were required to produce loan pre-approval letters and other documents when whites were not.

Moreover, real estate agents enforced residential and school segregation by steering home buyers into neighborhoods based on race. Whites were encouraged to live where the schools were mainly white; African-Americans where schools were disproportionately black; and Latinos where schools were disproportionately Latino.

September 16, 2015 | Permalink | Comments (0)

Barnes on Gerhart's Property Law and Social Morality.

BarnesKristen Barnes (Akron) has posted Recognition and Reflection (Texas A&M Journal of Real Property Law) on SSRN.  Here's the abstract:

This Article examines the theories of Peter M. Gerhart, as expounded in his book, Property Law and Social Morality. The critique emphasizes the necessity of incorporating the origins of property systems within any socially responsible theory of property and of accounting for the critical voices within systems that may raise important ethical objections to the allocation of resources.

September 16, 2015 | Permalink | Comments (0)

Benson on Shifting Public Land Paradigms

MhbensonMelinda Benson (New Mexico - Geography) has posted Shifting Public Land Paradigms: Lessons from the Valles Caldera National Preserve (Virginia Environmental Law Journal) on SSRN.  Here's the abstract:

The Valles Caldera National Preserve is the largest and most ambitious public land management experiment in the United States’ history. Congress created the Preserve in 2000 as a wholly owned Government Corporation managed not by a federal agency, but instead by a Board of Trustees. The management paradigm was unique. In addition to the familiar requirements of multiple use and sustained yield, the Act included a mandate that the Preserve become financially self-sustaining. This experiment ended in December of 2014 when Congress passed a law transferring management to the National Park Service. The creation of this experiment, along with its subsequent unfolding over 14 years, provides a fascinating window into the challenges associated with public land management generally and a financially driven trust model specifically. This Article examines the Preserve’s experiment and attempts to answer the question — what did we learn? Lessons include: (1) the challenges of having a corporate identity while also complying with laws pertaining to federal agencies, (2) the ways in which NEPA can inform management via iterative processes, (3) successes in science-based of adaptive management, (4) the challenges of running a “working ranch” in the American West, and (5) opportunities to protect cultural resources and honor the religious and cultural practices of living native communities. Absent among these lessons is a clear answer regarding whether public lands can be made financially self-sustaining. The Preserve’s neoliberal charge was thwarted for many reasons, including our cultural beliefs about public lands and the role they play within the American imaginary.

September 16, 2015 | Permalink | Comments (0)

Monday, September 14, 2015

Will One Man Own Detroit?

Screen Shot 2015-09-13 at 9.53.55 PM

The Detroit Free Press takes a long look at Quicken Loans' Dan Gilbert, who is buying up huge chunks of downtown Detroit:

This month marks the five-year anniversary of Gilbert's move of his Quicken Loans company to downtown from the suburbs, a stunning development at the time and a major boost for a downtown real estate scene dealing with fallout from the Great Recession and the managed bankruptcies of General Motors and Chrysler. [...]

As Gilbert grew his workforce, his Bedrock Real Estate Services bought and filled historic but half-empty skyscrapers and enlivened the street scene with everything from a sandy beach at Campus Martius to bike rentals, food trucks, and basketball hoops.

Through his more than $1.5 billion in private investment, Gilbert has been one of the most potent forces behind a growing downtown Detroit renaissance aided by the positive vibes of bustling streets and sidewalks when just a few years ago downtown seemed a ghost town.

[...] Gilbert acknowledges he has riled critics who object to the extensive security operation that safeguards his properties. And some question whether one man or business entity should control so much of downtown. Gilbert said it's all in the service of creating a more vibrant city and urban core.

September 14, 2015 | Permalink | Comments (0)

Yeh on the Property Impacts of a Sex Offender Registry

YehSusan Yeh (George Mason) has posted Revealing the Rapist Next Door: Property Impacts of a Sex Offender Registry (International Review of Law and Economics) on SSRN.  Here's the abstract:

How do homebuyers respond to perceived crime risks about sex offenders in the neighborhood? I evaluate local property and crime responses to Internet sex offender registry listings. Among more permanent listings, a nearby offender depresses house prices by up to 4 percentage points. I document that the majority of registered sex offenders are transient, with durations of less than 6 months at an address. While a growing literature suggests that housing stability is important in reducing criminal behavior, the market perceives heightened crime risks to be attached to the listings of registered offenders with more stable housing, but not to those who are transient or who have moved away. Prices correspond more strongly to long-term offender locations than to locations of actual sex crimes. I find small, localized reductions in rapes involving weapons within 0.1 miles of offender addresses and increases in sex crimes farther away.

September 14, 2015 | Permalink | Comments (0)

Cheever & McLaughlin on Conservation Easements

Federico Cheever (Denver) & Nancy McLaughlin (Utah) has posted An Introduction to Conservation Easements in the United States: A Simple Concept and a Complicated Mosaic of Law (Journal of Law, Property, and Society) on SSRN.  Here's the abstract:

The idea of a conservation easement – restrictions on the development and use of land designed to protect the land’s conservation or historic values – can be relatively easily understood. More significant and more challenging is the complex body of state and federal laws that shapes the creation, funding, tax treatment, enforcement, modification, and termination of conservation easements.

The explosion in the number of conservation easements over the past four decades has made them one of the most popular land protection mechanisms in the United States. The National Conservation Easement Database estimates that the total number of acres encumbered by conservation easements exceeds 40 million.

Because conservation easements are both novel and ubiquitous, understanding how they actual work is essential for practicing lawyers, policymakers, land trust professionals, and students of conservation. This article provides a “quick tour” through some of the most important aspects of the developing mosaic of conservation easement law. It gives the reader a sense of the complex inter-jurisdictional dynamics that shape conservation transactions and disputes about conservation easements.

Professors of property law, environmental law, tax law, and environmental studies who wish to cover conservation easements in the context of a more general course can use the article to provide their students with a broad but comprehensive overview of the relevant legal and policy issues.

September 14, 2015 | Permalink | Comments (0)

Thursday, September 10, 2015

How Globes Were Made


Slate has a short piece on London-based Bellerby & Co., one of handful of enterprises that still produces globes by hand.  The process is fascinating and the globes are beautiful (and expensive). 

September 10, 2015 | Permalink | Comments (0)

Call for Abstracts: AALS Property Section

The AALS Section on Property is pleased to invite junior faculty members to submit an abstract of a current writing project or an abstract outlining a possible paper idea.  Authors of selected abstracts will informally present their theses/ideas during a mentoring session to be held as one part of the Section breakfast at the 2016 AALS Annual Meeting in New York.  The breakfast will take place at 7:30 am on January 7, 2016.

The goal of this event is to create a safe and organized (but informal) space at the AALS meeting for junior property scholars to meet and engage with more experienced scholars.  Selected presenters will have a maximum of 5 minutes to informally present their emerging theses/ideas to their table at the breakfast, after which the members of the Section at each table can offer feedback.  Each table will have at least one member of the Section’s Executive Committee as well as other more senior property scholars who will provide mentoring advice, including constructive comments and guidance designed to help suggest ideas and directions of research that might assist with the junior scholar’s project. 

Interested full-time, junior faculty members (defined for these purposes as 10 years or less in the academy) of AALS member law schools are invited to submit an abstract of one to three pages to Professor Donald J. Kochan (Chapman University Fowler School of Law), Secretary of the AALS Section on Property, at by September 30, 2015.  A review panel consisting of seven property scholars will select three to five junior scholars’ abstracts for these informal presentations and table discussions at the Section breakfast.  Selected presenters will be notified of the review panel’s decision in mid-October.  Each selected presenter will be responsible for paying his/her annual meeting registration fee, the registration fee for attending the Property Section breakfast, and travel expenses.

Please feel free to direct questions to Professor Kristen Barnes (University of Akron School of Law), Chair of the AALS Section on Property,, or Professor Kochan at

September 10, 2015 | Permalink | Comments (0)

Boyack & Berger on Zombie Mortgages

Andrea Boyack (Washburn) & Robert Berger (U.S. Bankruptcy Court) have posted Bankruptcy Weapons to Terminate a Zombie Mortgage (Washburn Law Journal) on SSRN.  Here's the abstract:

Bankruptcy’s strongest public policy is the possibility of a fresh start for a borrower – a way for a debtor to free himself from the burdens of pre-petition obligations and re-commence his or her financial life. A debtor can surrender property burdened by a lien to the lien-holder and thereby release him or herself from ongoing obligations under the loan. This is true even in cases where the collateral’s value is less than the secured loan – for in bankruptcy, a lender’s secured claim is limited to the value of its lien. In chapter 13, a debtor who elects to keep secured property must pay off the secured claim through an acceptable plan, and if the debtor opts to liquidate the secured property, then the debtor may sell it free and clear of liens if it is authorized to do so under § 363 of the Bankruptcy Code.

This straightforward method of wiping the slate clean in bankruptcy has recently been threatened by home mortgage holders’ reluctance to foreclose. If the secured lender refuses to accept a debtor’s surrender and foreclose on its lien, the mere filing of bankruptcy will not operate to release the borrower from legal responsibility for property carrying costs and associated liabilities. In cases of foreclosure delay, the defaulted mortgage becomes impossible to kill off completely, even when a borrower has abandoned the home and sought a bankruptcy fresh start. This undead mortgage prevents the property from entering the flow of commerce and poses a barrier to acquisition by a new owner willing to shoulder its upkeep. Neighborhoods and municipalities also pay the cost of zombie mortgages, as years can drag by with no resident owner paying homeowner association dues or property taxes. Furthermore, vacant, unmaintained properties pose a safety hazard and drive down community property values. Borrowers and communities have tried – with varying success – to address this zombie mortgage apocalypse with creative tools, as have bankruptcy debtors and courts.

When mortgage lenders refuse to foreclose real property surrendered in bankruptcy, courts have variously attempted to address the zombie mortgage. One underutilized way to kill off a zombie mortgage is to order the home be sold, free and clear of liens, under § 363 of the Bankruptcy Code. This section permits a trustee (or debtor-in-possession) to sell property free of outstanding liens in certain enumerated cases, including cases of lender assent, cases where the sale price will cover the aggregate value of liens encumbering the property, and cases where a free-and-clear sale would otherwise be available under a legal or equitable proceeding. Each of these options provides an interesting possible route to clearing title and providing a debtor with a fresh start in cases of foreclosure delay. Section 363 sales are also available in cases of a dispute about the underlying obligation, and this raises the possibility that lender misbehavior during the life of a mortgage loan can create lien vulnerability in bankruptcy.

This article explores the utility of the various subparts of § 363 as a tool to terminate zombie mortgages in bankruptcy. We believe that this bankruptcy power of sale provides a useful avenue to free debtors from the haunting shadow of a defaulted, un-foreclosed mortgage and associated involuntary homeownership. At the same time, the bankruptcy trustee sale power of § 363 can provide great community and market benefits and alleviate foreclosure crisis fallout by encouraging home occupancy and maintenance, wiping out stale liens, and releasing real property back into the stream of commerce.

September 10, 2015 | Permalink | Comments (0)

Zale on Sharing Property

KellenZaleKellen Zale (Houston) has published Sharing Property (Colorado Law Review) on SSRN.  Here's the abstract:

The sharing economy – the rapidly evolving sector of peer-to-peer transactions epitomized by Airbnb and Uber – is the subject of heated debate about whether activities taking place within it are so novel that no laws apply, or whether they should be subject to the same regulations as their analog counterparts. The debate has proved frustrating and controversial in large part because we lack a doctrinally cohesive and normatively satisfying way of talking about the underlying activities taking place in the sharing economy. In part, this is because property-sharing activities – renting your car to someone for a day, paying to spend the weekend in a stranger’s house – blur the familiar binary divisions of personal and commercial, gratuitous and non-gratuitous, formal and informal, that the law employs to characterize human activities. Because we lack a coherent analysis of these underlying property-sharing activities, any judgment about the sharing economy’s social value or attempts to regulate it are incomplete and confusing at best, and possibly inaccurate or counter-productive.

This Article brings clarity and coherence to this discourse by unpacking the underlying activities taking place within the sharing economy and developing a conceptual framework and taxonomy of sharing. By being more precise about what we mean when we talk about the sharing economy and situating these activities with respect to existing legal institutions and shifting social norms, this Article provides an essential foundation for future scholarship on the sharing economy, as well as for policymakers evaluating regulatory responses to the sharing economy.

September 10, 2015 | Permalink | Comments (0)

Tuesday, September 8, 2015

Professors' Corner: Cemetery Law and the Real Estate Lawyer


The Real Property, Trust and Estate Law Section is sometimes referred to as consisting of two parts—dirt (real property law) and death (trust and estate law). The September Professors' Corner focuses on the place where dirt and death law literally intersect—the law of cemeteries. Although few attorneys practice "cemetery law," most real estate attorneys have confronted issues regarding the presence of human remains in marked or unmarked graves. This Professors' Corner is intended to provide an overview of the structure of the legal landscape to better prepare attorneys to confront these issues.

Tanya Marsh, the author of "The Law of Human Remains" (2015) and "Cemetery Law" (2015), will outline the structure of cemetery law in the United States. Ryan Seidemann, a trained archaeologist and Assistant Attorney General in Louisiana, will discuss the laws governing the discovery of human remains and the obligations of property owners with respect to those remains. Dean Alterman has encountered cemetery law issues many times during his career and will discuss non-cemetery uses in cemeteries, including cell towers and easements, and issues with regulators and customers.

Register now for this FREE program using your ABA ID and join us on Wednesday, September 9 for a discussion of these and other current issues with Cemetery Law and the Real Estate Lawyer.

September 8, 2015 | Permalink | Comments (0)

Marsh on The Law of Human Remains

MarshtdTanya Marsh (Wake Forest) has posted The Law of Human Remains (Book Chapter) on SSRN.  Here's the abstract:

A human cadaver is no longer a person, but neither is it an object to be easily discarded. As a result of this tenuous legal status, human remains occupy an uneasy position in U.S. law. Perhaps because of what anthropologist Ernest Becker called our “universal fear of death,” the law of human remains occupies a remarkably unexamined niche of U.S. law.

The Law of Human Remains is an ambitious effort to collect, organize and state the legal rules and principles regarding the status, treatment and disposition of human remains in the United States. The most recent comprehensive overview of the law was published in 1950 (Percival Jackson's The Law of Cadavers). The Law of Human Remains builds on that work by creating detailed summaries of each individual state’s laws and regulations. This unprecedented resource allows readers to quickly identify the often fascinating differences that exist between states.

By defining and describing this neglected area of law, The Law of Human Remains simultaneously establishes the theoretical and doctrinal basis for the law of human remains and provides a framework so that attorneys and courts can more easily discover, understand, and use the law.

The first part of the book establishes the foundational principles of the common law of human remains in the United States and outlines major federal statutes on the subject. It then restates and explains legal doctrines in five categories:

(1) The Newly Dead (including legal recognition of death, presumption of death, obligations to report human remains, inquests and autopsies, and disposition of unclaimed remains);

(2) The Initial Disposition of Human Remains (including the decedent’s right to determine the place and manner of disposition, determining the rights and obligations to control disposition, the nature and scope of interment rights, and the obligation to pay funeral and disposition expenses);

(3) Disposition Options (including burial, cremation, and organ/cadaver donation);

(4) Regulation of the Funeral Industry; and

(5) Treatment of Human Remains (including abuse of corpse, disinterment, grave desecration, the possession and sale of human remains, and funeral protests).

The second part of the book includes detailed summaries of each state’s laws on each of the doctrines explained in Part I. Statutes and leading cases are cited and explained, providing a valuable resource for attorneys and courts.

September 8, 2015 | Permalink | Comments (0)

Stern on Mutual Exclusivity and the Nature of Property

JysternJames Stern (William & Mary) has posted Mutual Exclusivity and the Nature of Property on SSRN.  Here's the abstract:

Property has long been understood to center on “exclusive” rights, but the nature of exclusivity in property law is poorly understood. This article shows that property is governed by a general principle of mutual exclusivity, which differs significantly from the various ways in which property theorists have described property’s exclusive nature. The mutual exclusivity principle holds that one valid property right forecloses the existence of an inconsistent property right held by someone else. While two people can have contractual rights to purchase the same item of property, for instance, those two people cannot have their own separate and independent ownerships of it. The article shows how the mutual exclusivity principle is fundamental to the structure of property law and is often the key determinant that distinguishes property from other kinds of legal relationships, in both form and function. Unlike other conceptions of exclusivity prevalent in commentary on property, mutual exclusivity holds true not only for ownership of land and physical objects but for other types of rights, such as security interests, servitudes, intellectual property, and corporate shareholding.

In addition to identifying the mutual exclusivity principle and demonstrating its fundamental role in organizing property, the article makes three other contributions to the literature on property. First, it shows how the mutual exclusivity principle explains a number of basic institutional features of property law, such as the use of possession-based rules, the system of future interests, recording acts, and the negative structure of property rights. Second, it modifies the influential theory that property is heavily shaped by problems of high information costs. Many of the ways property entails relatively high information costs result from the mutual exclusivity principle, rather than of the scope of property duties, as information cost theories often suppose. Finally, the article calls for a change in direction in the property literature more broadly, arguing that American property scholarship has been excessively preoccupied with questions about the scope and strength of property rights, overlooking the critical separate problem of ascertaining who happens to hold a given right. Property, it argues, is at least as much about title chains, patent searches, and creditor priorities as it is about trespass, remedies, and eminent domain.

September 8, 2015 | Permalink | Comments (0)

Friday, September 4, 2015

Will Aging Boomers Get Stuck in the Suburbs?

What happens when boomers get too old to drive:

The oldest boomers are now just 68. But there are 78 million of them, and as they get older, the impact on suburbia will be profound. More and more of municipalities' taxes will be going to support them instead of schools and parks — Why? Because they vote a lot — while property values, and the tax base will decline as whole neighborhoods turn into senior citizens districts, with old Saturns rusting in the driveway like at my mother-in-law’s house. Transit costs will go through the roof as seniors demand services in low-density areas that cannot support it. The fact is, there is a major urban planning disaster staring us all in the face, which is going to seriously hit everyone young and old in about 10 years when the oldest boomers are 78. We have to prepare for it now.

September 4, 2015 | Permalink | Comments (0)

Top SSRN Downloads

In honor of the beginning of the month, here are the most downloaded property articles on SSRN over the last 60 days:

1. [184 downloads]  Banks, Break-Ins, and Bad Actors in Mortgage Foreclosure
     Christopher K. Odinet (Southern)

2. [179 downloads]  Water Rights, Water Quality, and Regulatory Jurisdiction in Indian Country
    Robert T. Anderson (Washington)

3. [146 downloads]  About Legal Notion of Possession
     Dimitar P. Gelev (St. Cyril & Methodius)

4. [123 downloads]  The Lost 'Effects' of the Fourth Amendment: Giving Personal Property Due Protection
     Maureen E. Brady (Yale)

5. [122 downloads]  Of Property and Information
     Abraham Bell (Bar-Ilan) and Gideon Parchomovsky (Penn)

6. [121 downloads]  Federal Reserved Water Rights as a Rule of Law
     Michael C. Blumm (Lewis & Clark)

7. [116 downloads]  Just Remedies
     Shai Stern (Bar-Ilan)

8. [113 downloads]  Patents, Technical Standards and Standards-Setting Organizations: A Survey of the Empirical, Legal and Economics Literature
     Jorge L. Contreras (Utah)

9. [106 downloads]  The Human Right to Private Property
     Hanoch Dagan (Tel Aviv) and Avihay Dorfman (Tel Aviv)

10. [99 downloads]  Disparate Impact and the Role of Classification and Motivation in Equal Protection Law after Inclusive Communities
     Samuel R. Bagenstos (Michigan)

September 4, 2015 | Permalink | Comments (0)