Tuesday, November 11, 2014
Gregory Alexander (Cornell) has posted The Public Use Requirement and the Character of Consequentialist Reasoning (Context, Criteria & Consequences of Expropriation) on SSRN. Here's the abstract:
How does expropriation fit into a human flourishing theory of property? If we take it that property owners owe members of their communities obligations to provide resources necessary to develop those capabilities that are essential to human flourishing, then what does this require of them in terms of the state’s power to expropriate?
Monday, November 10, 2014
Ned Snow, a property professor at South Carolina, has made a new mobile app to helps students learn future interests. It’s called Future Interests Made Simple. The app contains pictures (drawn by the Prof. Snow's children), diagrams, graphics, examples, and lots of practice problems with detailed explanations. It's currently available on iPhones, iPads, and Android phones for $2.99 If your students are asking for more future interest practive problems, this is certainly an economical solution. You can download the app at the iTunes Store and the Google Play Store.
The Association for Law, Property & Society (ALPS) is a scholarly organization for those engaged in scholarship on all aspects of property law and society. ALPS will hold its 6 th Annual Meeting at the University Of Georgia School Of Law Athens, Georgia USA, May 1 - 2, 2015.
ALPS welcomes papers on any subject related to property law, including pedagogy, and from a diversity of perspe ctives. As in previous years, we will have both draft paper panels and early works-in-progress panels dedicated to brainstorming scholarship at its beginning stages. We also plan to support early - career scholars in their development and in connecting to me ntors through the conference events.
You may submit an individual paper or a panel (usually 4 presenters). Panel proposals may include a collection of paper presentations, roundtables, or book panels. Paper abstracts should not exceed 250 words. If submitting a panel, please submit a panel abstract and individual paper abstracts.
Registration and paper/panel submission is available through the conference website at http://law.uga.edu/association-law-property-society-alps
The deadline for submitting papers and panels is February 1, 2015, but registration for the conference will continue to be available after that date. Please do not submit papers and panels after February 1 as part of your registration without having emailed Jim Smith, firstname.lastname@example.org for permission to submit late. We will do our best to accommodate late submission requests, but can only guarantee that proposals submitted by the February 1 deadline will be able to be considered for the conference.
A discounted early registration rate of $150 is available until February 1, 2015. After that date, the registration rate is $180. The registration rate for full-time students (JD, PhD, or other program) is $50.
Alexander Skibine (Utah) has posted Using the New Equal Protection to Challenge Federal Control Over Tribal Lands on SSRN. Here's the abstract:
There are today over 55 million acres of land owned by Indian tribes or their members that the Federal government claims are held in trust by the United States for the benefit of these tribes or members. Throughout history, purporting to act as a trustee for the Indians, Congress has enacted laws severely restricting the ability of Indians to make management decisions with respect to these lands. Many of these laws, for instance impose federal approval requirements before these tribally-owned lands can be leased, sold, or otherwise encumbered. This Article calls into question the power of the federal government to impose such restrictions and argues that these laws constitute a denial of equal protection under the Due Process Clause Fifth Amendment. Since 1974, laws made specifically applicable to Indians because of their status as Indians have been held not to involve racial classifications but political ones because these laws do not affect all “Indians” but only those Indians that are also members of Indian tribes. While this holding has been welcomed by tribes when fighting to uphold laws benefitting Indians, it has also impaired their ability to make effective equal protection arguments against laws detrimental to them. The prevailing view is that in order to mount a successful equal protection challenge, Indians would have to show that such laws are not rationally tied to Congress’ unique trust obligations towards Indians. Others take the position that regular rational basis review would be applicable to such equal protection challenges. This Article disagrees with both positions and argues that the new Supreme Court Equal Protection jurisprudence as reflected in cases such as United States v. Windsor (2013) can be successfully used by Indian tribes to attack those laws imposing, only on them, federal approval requirements before such lands can be leased or otherwise encumbered. Under such new jurisprudence a law can be set aside under equal protection either if it was based on unconstitutional animus towards a vulnerable minority or if it did not pass a somewhat more intensive level of review than rational basis. What some scholars have called “rational basis with bite.”
Friday, November 7, 2014
Richard Delgado (Alabama) has posted Delgado's Darkroom: Critical Reflections on Land Titles and Latino Legal Education (New Mexico Law Review) on SSRN. Here's the abstract:
Delgado's Darkroom grew out of a talk -- the annual Senator Dennis Chavez Lecture -- that I gave at University of New Mexico. In it, I make a number of points about the failure of legal education to equip minority lawyers to carry out serious law-reform work, especially in the area of land titles and claims.
Wednesday, November 5, 2014
The National Conference of State Legislatures explains the difference between strict and non-strict:
- Non-strict: At least some voters without acceptable identification have an option to cast a ballot that will be counted without further action on the part of the voter. For instance, a voter may sign an affidavit of identity, or poll workers may be permitted to vouch for the voter. In some of the “non-strict” states (Colorado, Florida, Montana, Oklahoma, Rhode Island, Utah and Vermont), voters who do not show required identification may vote on a provisional ballot. After the close of Election Day, election officials will determine (via a signature check or other verification) whether the voter was eligible and registered, and therefore whether the provisional ballot should be counted. No action on the part of the voter is required. In New Hampshire, election officials will send a letter to anyone who signed a challenged voter affidavit because they did not show an ID, and these voters must return the mailing, confirming that they are indeed in residence as indicated on the affidavit.
- Strict: Voters without acceptable identification must vote on a provisional ballot and also take additional steps after Election Day for it to be counted. For instance, the voter may be required to return to an election office within a few days after the election and present an acceptable ID to have the provisional ballot counted. If the voter does not come back to show ID, the provisional ballot is not counted. Using the non-strict/strict categorization, 21 states have non- strict voter ID requirements, and 10 have strict requirements.
David Horton (UC Davis) has posted Contractual Indescendibility (Hastings Law Journal) on SSRN. Here's the abstract:
Testation is supposed to be comprehensive: when we die, we pass everything we own to our friends and family. However, a growing number of valuable things defy this principle. From frequent flyer miles to virtual property to email and social media accounts, some assets expressly state that they cannot be transmitted by will, trust, or intestacy. This invited contribution to the Hastings Law Journal Symposium in honor of Charles L. Knapp analyzes this trend, which I call “contractual indescendibility.” It shows that consumers who challenge non-inheritability provisions face three obstacles. First, they have to prove an ownership interest in the item. Second, they need to invalidate the indescendibility clause under contract law. And third, they must navigate the gauntlet of federal legislation that governs this area. Despite these hurdles, I conclude that companies should not have carte blanche to delete this cherished stick from the bundle of rights.
Tuesday, November 4, 2014
Robert Keiter (Utah) & John Ruple (Utah) have posted A Legal Analysis of the Transfer of Public Lands Movement on SSRN. Here's the abstract:
Utah’s legal claims to federal land grow out of its statehood enabling act. Since similar statutory language is found throughout the Western states, a successful claim by Utah could fuel more claims and potentially end the public land system as we know it. Utah’s claims, like those of its neighbors, are doomed to failure, however. The federal government has absolute control over federal public lands, including the constitutional authority to retain lands in federal ownership. Statutes authorizing Western states to join the Union required those same states to disclaim the right to additional lands and that disclaimer cannot be spun into a federal duty to dispose. Statehood enabling acts’ guarantee of equal political rights also cannot be spun into a promise of equal land ownership. Furthermore, though statehood enabling acts guarantee states a share of the proceeds resulting from federal land sales, that guarantee is not an obligation to sell.
As a BLM spokeswoman recently said with respect to confrontations over public land management and Utah’s antagonistic tone towards the federal government: “It is frustrating as we work to identify the best possible path forward for everyone when some of the entities we are trying to work with consistently feel the need to poke us in the eye and then complain we are not working with them.”99 This may be the larger lesson — that the Transfer Movement does more harm than good to the federal-state relationship needed for effective public land management.
Monday, November 3, 2014
In honor on the beginning of the month, here are the most downloaded property articles on SSRN over the last 60 days:
1. [298 downloads] Trying Times: Important Lessons to Be Learned from Recent Federal Tax Cases
Nancy A. McLaughlin (Utah) & Stephen J. Small (Independent)
4. [90 downloads] Federalism and Municipal Innovation: Lessons from the Fight Against Vacant Properties
Benton C. Martin (Emory)
7. [59 downloads] The Behavioral Law and Economics of Fixed-Rate Mortgages (and Other Just-So Stories)
Todd J. Zywicki (George Mason)
8. [57 downloads] Abuse of Property Right Without Political Foundations: A Response to Katz
Mitchell N. Berman (Penn)
9. [52 downloads] Title Registration and the Abolition of Notice in British Columbia
Douglas C. Harris (UBC) & May Au (UBC)
Thomas Mitchell (Wisconsin) has posted Reforming Property Law to Address Devastating Land Loss (Alabama Law Review) on SSRN. Here's the abstract:
Tenancy-in-common ownership represents the most widespread form of common ownership of real property in the United States. Such ownership under the default rules also represents the most unstable ownership of real property in this country. Thousands of tenancy-in-common property owners, including members of many poor and minority families, have lost their commonly-owned property due to court-ordered, forced partition sales as well as much of their real estate wealth associated with such ownership as a result of such sales. Though some scholars and the media have highlighted how thousands of African-Americans have lost an untold amount of property and substantial real estate wealth as a result of partition sales, partition sales also have negatively impacted a wide range of other property owners. Some scholars have estimated that Hispanics in New Mexico lost nearly two millions acres of property in that state alone soon after the end of the Mexican-American War as a result of the manner in which land claims were settled pursuant to the Treaty of Guadalupe Hidalgo. Low- to moderate- income and poor white property owners in places like Appalachia have indicated to researchers that they feel at risk of losing their property as a result of partition sales. Though partition sales of tenancy-in-common property heretofore has been identified as a phenomenon impacting exclusively rural landowners, Hurricane Katrina revealed that there are a number of vulnerable tenancy-in-common property owners in urban cities and municipalities. There are even a surprising number of middle class, white property owners who own tenancy-in-common property under the default rules in some places in this country such as in Maine.
This Article, the lead article for this issue of the Alabama Law Review, reviews and analyzes the Uniform Partition of Heirs Property Act (UPHPA), a uniform act that represents the most significant reform to partition law in this country in modern times. I served as the Reporter, the person charged with principal responsibility for drafting a uniform act promulgated by the National Conference of Commissioners on Uniform State Laws, for the UPHPA. The Article summarizes those aspects of partition law that have resulted in thousands of property owners losing millions of acres of property and the real estate wealth associated with such property. The Article also provides an analysis of key sections of the UPHPA, and this analysis makes clear that the UPHPA represents a very comprehensive and innovative reform to what heretofore had long been perceived to be the intractable problem of tenancy-in-common land loss. For example, the drafters of the UPHPA drew in part on international comparative law in drafting certain sections of the UPHPA, including by drawing on the law governing exit of common ownership in countries such as Australia, Canada, England, and Scotland. Moreover, the Council of State Governments selected the UPHPA as one of thirty-five newly enacted statutes or uniform acts for inclusion in its 2013 Suggested State Legislation publication (from hundreds of submissions by state officials from across the country) to encourage states to consider it as a model. The UPHPA has been enacted into law in four states, it was introduced for consideration in four other jurisdictions in 2014, and a number of states are on the cusp of introducing it for consideration in 2015.
Friday, October 31, 2014
Salon writes about the various approaches to measuring denisty:
The hardest question, in calculating residential density, is the only question: How do you measure area? Because official urban boundaries fluctuate wildly between cities — some, like Toronto or Jacksonville, include vast tracts of suburban land, some, like Atlanta or Miami, are tiny fractions of their metropolitan areas — comparative rankings based on city size are useless. The Harvard economist Ed Glaeser, for example, has written that Shanghai and Beijing are less than half as dense as Los Angeles, which tells you everything you need to know about the utility of comparative urban density measurements.
But even if we restrict the measurement to one city or neighborhood, what ought to be included? The land occupied by residential buildings, certainly. What about roads? On the one hand, they are inflexible, generally unavailable for construction purposes; on the other, their size is a prime determinant of neighborhood character, commerce, and the potential for mass transit.
Should green space count against density? Including Central Park substantially lowers the density of Upper Manhattan, producing a metric at odds with the area’s settlement patterns, transportation uses, and the distribution of shops and restaurants. Yet naming the Upper West Side the densest neighborhood in Manhattan also seems misleading, since it’s sandwiched between the vast open spaces of Central Park and the Hudson River.
David Reiss (Brooklyn) has posted Who Should Be Providing Mortgage Credit to American Households? (Tulane Law Review) on SSRN. Here's the abstract:
Who should be providing mortgage credit to American households? Given that the residential mortgage market is a ten-trillion-dollar one, the answer we come up with had better be right, or we may suffer another brutal financial crisis sooner than we would like. Indeed, the stakes are as high as they were in the Great Depression when the foundation of our current system was first laid down. Unfortunately, the housing finance experts of the 1930s seemed to have a greater clarity of purpose when designing their housing finance system. Part of the problem today is that debates over the housing finance system have been muddled by broader ideological battles and entrenched special interests, as well as by plain old inertia and the fear of change. It is worth taking a step back to evaluate the full range of options available to us, as the course we decide upon will shape the housing market for generations to come.
Thursday, October 30, 2014
A quixotic quest worthy of a real-estate
For the past six years, William D. McCracken, [a] 39-year-old real-estate lawyer, has been combing both sides of every street in Manhattan in a quest to document the dated, inscribed rocks that serve as birth certificates for buildings. By foot and on bike, often accompanied by his Labradoodle named Martin, Mr. McCracken has amassed an online archive of the island’s 1,100-plus surviving cornerstones. (See some on an interactive map.)
Mr. McCracken’s search has gotten tougher as the venerable cornerstone is abandoned by developers. The load-bearing stones have largely gone the way of the flying buttress since the postwar advent of reinforced concrete and steel-frame construction. The walls of such buildings are often hung from above. [...]
Historically, a building in New York City rose in relation to its cornerstone, with facade walls aligned in reference to the rock. The block typically bore a date and often a message. “Jesus Christ Himself Being the Chief Cornerstone” was big in the 1880s and 1890s.
Ceremonies and parades accompanied cornerstone-layings, often led by Freemasons who sprinkled a rock with corn and anointed it with wine and oil to represent plenty, refreshment and joy. Dignitaries made speeches and wielded trowels.
“It’s a noble tradition that enriches the experience of city life, but it’s gotten almost completely forgotten,” says Robert A.M. Stern, dean of the Yale School of Architecture and lead designer of 15 Central Park West, a condominium building which has a cornerstone, and several other New York luxury condos which don’t.
Nestor Davidson (Fordham) has posted Nationalization and Necessity: Takings and a Doctrine of Economic Emergency (Brigham-Kanner Property Rights Conf. J.) on SSRN. Here's the abstract:
Serious economic crises have recurred with regularity throughout our history. So too have government takeovers of failing private companies in response, and the downturn of the last decade was no exception. At the height of the crisis, the federal government nationalized several of the country’s largest private enterprises. Recently, shareholders in these firms have sued the federal government, arguing that the takeovers constituted a taking of their property without just compensation in violation of the Fifth Amendment. This Essay argues that for the owners of companies whose failure would raise acute economic spillovers, nationalization without the obligation to pay just compensation should be recognized as a natural extension of the doctrine of emergency in takings. Public officials must be able to respond quickly to serious economic threats, no less than when facing the kinds of imminent physical or public health crises — such as wildfires and contagion — that have been a staple of traditional takings jurisprudence. Far from an affront to the rule of law, this reflection of necessity through an extension of emergency doctrine would reaffirm the flexibility inherent in property law in times of crisis.
Wednesday, October 29, 2014
The news from the Bay Area:
A federal judge Tuesday struck down a San Francisco ordinance that steeply increased payments landlords were required to pay tenants evicted from properties they intended to take off the rental market, finding the law was an unconstitutional seizure by the government.
The legislation drafted by Supervisor David Campos took effect in June and required landlords to pay two years worth of the difference between the tenants' rent-controlled rate and the market rate, determined by a formula developed by the city controller's office.
Campos' ordinance was intended to mitigate the effects of the state's Ellis Act, statewide legislation passed in 1985 that allows landlords to evict tenants without cause if they intend to take the housing off the rental market.
Thomas Mitchell (Wisconsin) has posted The Land Crisis in Zimbabwe: Getting Beyond the Myopic Focus Upon Black & White (Indiana International & Comparative Law Review) on SSRN. Here's the abstract:
This article deconstructs the role that race played in the land crisis in Zimbabwe that occurred in Zimbabwe in the late 1990s and earls 2000s. The article makes it clear that the government of Zimbabwe did not extend robust property rights to its black majority population for the most part even as it took land from large white landowners. This is revealing given that the government's primary justification for taking land from large white landowners was that the black majority unjustly owned little property in Zimbabwe as a result of colonialist and neocolonialist, discriminatory polices.
Tuesday, October 28, 2014
Brooklyn Magazine tries to find a book that captures the spirit of each state:
We wanted to come up with a list that was more than just a general reflection of a place, but rather paid attention to the specifics, even at the risk of the exclusion of the whole. No one book, after all, can completely capture the spirit of something so unwieldy as a state. Few—if any—books can even completely capture the spirit of an individual. And yet there are those stories that so beautifully evoke a time and a place and a way of life that it becomes close to impossible to separate the literary perception of a place from its reality—one winds up informing the other.
Check out the webpage for further explanations of the choices.
Sari Graben (Ryerson University - Canada) has posted Lessons for Indigenous Property Reform: From Membership to Ownership on Nisga'a Lands (British Columbia Law Review) on SSRN. Here's the abstract:
Indigenous governments in Canada are increasingly authorized to adopt laws that convert communally held lands to individual fee simple. They will convert title to fee simple in order to obtain the economic benefits commonly associated with private ownership and its securitization. However, Indigenous peoples are also likely to experience rapid social change that may necessitate the adaptation of law to local context. Governments expect to address social dislocation by exercising legislative and regulatory authority over lands, which continue irrespective of ownership. Seeking to examine the reliability of this argument, I analyze whether the legislative reforms of the Nisga’a Nation, one of the first to define its Aboriginal title as an estate in fee simple, are sufficient to address social changes likely to arise from titling.
Based on the authority obtained by the Nisga’a in the Nisga’a Final Agreement and already established in Nisga’a statutes, I argue that social impacts and laws necessarily implicated by titling reform can be addressed through the legal authority vested in the Nisga’a. However, because ownership works in collaboration with other laws to impact the social and economic environment of a community, continuing governing authority may not be sufficient to effect significant control over the use and development of the land. Drawing on the insight that titling is used as one part of a broader regime aimed at investment I argue that local reforms by Nisga’a governments that seek to ameliorate the impacts of titling are likely to be countered by investor concerns over certainty of title and security. I conclude with the observation that while privatization may be superior to communal ownership for particular Indigenous governments, law related to the social impacts of privatization should be identified as part of future land reform efforts.
Monday, October 27, 2014
Bloomberg looks at the tensions between New York City and Airbnb - a company that allows private owners to rent out their homes or apartments for short stays:
New York is the obvious business case for a service such as Airbnb: a dense city where a lot of people want to visit, and hotel rooms are limited in number. You’ve got a population of educated professionals who travel a lot, leaving their apartments empty. You’ve got insane housing costs in desirable areas, leaving renters open to making a few extra bucks on their abode. Unsurprisingly, almost 30,000 NYC units are available on the site.
It turns out, however, that New York is also one of the most challenging environments for Airbnb. You’ve got a powerful hotel lobby that likes the shortage of affordable rooms for rent. You’ve got an extremely high percentage of renters rather than owners, most of whom probably have leases that forbid subletting without permission. You’ve got a lot of apartments, whose fellow tenants may object to your giving strangers the keys to the front door. And don’t forget the well-organized affordable housing groups who object to landlords converting rental units to short-term stays. All of which has culminated in a law that effectively outlaws the majority of Airnb rentals in the city by making it illegal to sublet a New York apartment for less than 30 days. Yesterday, the New York State Attorney General, having demanded data on the city’s top Airbnb landlords, declared that three-quarters of the rentals appear to be illegal.