Friday, December 12, 2014
Tim Iglesias (San Francisco) has posted How Should the Law Treat Roommate Relationships? A Tale of Two Cases (California Real Property Law Reporter) on SSRN. Here's the abstract:
The law of roommates is an important but underdeveloped area of landlord-tenant law. Two recent cases, Fair Hous. Council v. Roommate.com, 666 F.3d 1216 (9th Cir. 2012) and Mercury Cas. Co. v. Chu, 229 CA4th 1432 (2014), offer contrasting approaches. This article explores the issues, reviews the cases and favors the Mercury court's approach.
Wednesday, December 10, 2014
Is your city better off if it has lots of recent immigrants or if it's full of people who stay put?:
For one, it’s easier for residents to develop relationships with neighbors in less transient communities. A more mobile population, however, may place a greater strain on school budgets, although it’s possible they might not demand as many other services from their local governments.
Perhaps more important, longtime residents are generally more civically engaged than newcomers. Citizen surveys conducted by the National Research Center find that residents with more than 10 years of residency contact elected officials and attend public meetings at greater rates. So, in cities suffering population declines, it’s reasonable to assume that those who remain will be quite vocal in their city’s affairs.
Governing Magazine also picked out the twenty cities where citizens have the deepest local ties: Akron, Ohio, Birmingham, Ala., Cleveland, Detroit, East Los Angeles, Calif., Flint, Mich., Fort Wayne, Ind., Green Bay, Wis., Huntington Beach, Calif., Independence, Mo., Jackson, Miss., Miami Gardens, Fla., Mobile, Ala., Norwalk, Calif., Philadelphia, Rialto, Calif., Rockford, Ill., Toledo, Ohio, West Covina, Calif., and Yonkers, N.Y
Celeste Hammond (John Marshall) has posted The Evolving Role for Transactional Attorneys Responding to Client Needs in Adapting to Climate Change (John Marshall Law Review) on SSRN. Here's the abstract:
This article considers these likely changes in the law for several categories of clients. In addition to business companies, it looks at the effect of activist investors and the insurance industry, which traditionally protects clients from risks. Because of the author's familiarity with transactions and the practice in the context of the commercial real estate industry, case studies to demonstrate themes will focus on clients involved in the acquisition of real estate, the financing of acquisitions and construction, commercial leasing, ownership & management of real estate to determine what the adaptation might be, how the law might change to respond to it and how the transactional lawyer will function.
Part I focuses on the distinct role of the transactional attorney as a "transaction cost engineer."
Part II provides a basic introduction to the science of climate change. The difference between the mitigation of climate change and adaptation to climate change is discussed. the three fundamental responses of adaptation are considered (defend in place against the impacts of climate change; retreat from the impacts of climate change and accommodate the impacts of climate change).
Part III examines proposals for the likely changes to the law and legal system to reflect adaptation to climate change. Economic costs of adaptation to ensure the resilience are huge and are being recognized by the business community. Other barriers to climate change are becoming clear as well.
Adaptation is a catalyst to thinking about the emerging law regarding climate change. A review of various academic thinking on how the law will change/adapt itself is discussed. Part IV considers the role of the transactional attorney as the law adapts to climate change. Part V expects that affected businesses, investors, government disclosure requirements, rules affecting availability of insurance are drivers of focus on the changes. Part VI provides a transactional case study: development of a real estate project after Hurricane Sandy to suggest adding adaptation to climate change to the typical checklists.
Tuesday, December 9, 2014
The LA Times does some reporting:
If you're thinking about taking out a home equity line, you're hardly alone. Credit lines tied to home equity — popularly known as HELOCs — are one of the fastest-growing segments in the mortgage market. Volume during the first half of 2014 is up by an extraordinary 21% compared with the same period last year, according to data collected by credit bureau Equifax.
The main reasons: Owners' equity holdings nationwide are up sharply — the Federal Reserve estimates gains at nearly $4.5 trillion since 2011 — and interest rates are near historical lows. Owners borrowed $66 billion against those fattened equity stakes during the first half of this year, a six-year high. Banks and other lenders extended 670,000 new HELOCs during the same period, also a six-year high, according to Equifax.
What are these people doing with their sudden access to ready cash, and how much are they pulling out? A new national survey, based on a representative sample of 1,364 homeowners with HELOCs, offers some important answers. The study was conducted last month by research firm Vision Critical for TD Bank.
The No. 1 finding: Most people aren't spending their home equity line money on dumb stuff. [...] Slightly more than half of current borrowers say they are using or have used their draw-downs for projects that are likely to increase the market value of their properties — updating kitchens, adding bathrooms, putting on a new roof and similar remodelings. An additional 29% have used their HELOC money to take advantage of today's wide gaps in interest rates among financial products. They are consolidating debts — paying off credit card balances with interest rates in the double digits using equity line funds borrowed at rates in the low single digits.
Robert Hockett (Cornell) has posted 'We Don't Follow, We Lead': How New York City Will Save Mortgage Loans by Condemning Them (Yale Law Journal Forum) on SSRN. Here's the abstract:
This brief invited essay lays out in summary form the eminent domain plan for securitized underwater mortgage loans that the author has been advocating and helping to implement for some years now. It does so with particular attention in this case to New York City, which is now actively considering the plan. The essay's first part addresses the plan's necessity. Its second part lays out the plan's basic mechanics. The third part then systematically addresses and dispatches the battery of remarkably weak legal and policy arguments commonly proffered by opponents of the plan.
Monday, December 8, 2014
An article from Mosiac Science looks at how better hospital design can keep patients healthier and save money:
Most of us have been lost in a hospital. The corridors all look the same, the signs for the department you want are there one minute and then gone the next. Everybody seems too busy for you to bother them asking for directions.
Getting lost is not only a cause of stress to patients and their families, but, when staff have to give directions, it is also a waste of clinical time. One study in a 600-bed hospital estimated that poor wayfaring cost over $220,000 a year. Much of this was due to the 4,500 hours of clinical time a year – approximately two full-time positions – that was spent giving directions to lost patients and even staff.
Erin Ryan (Lewis & Clark) has posted Environmental Federalism's Tug of War Within (Book Chapter) on SSRN. Here's the abstract:
In fact, environmental law is uniquely prone to federalism discord because it inevitably confronts the core question with which federalism grapples — who gets to decide? — in contexts where state and federal claims to power are simultaneously at their strongest. Environmental problems tend to match the need to regulate the harmful use of specific lands (among the most sacred of local prerogatives) with the need to regulate border-crossing harms caused by these uses (among the strongest of national prerogatives). As a result, it is often impossible to solve the problem without engaging authority on both ends of the spectrum — and disputes erupt when local and national ideas on how best to proceed diverge. Ongoing jurisdictional controversies in energy policy, pollution law, and natural resource management reveal environmental law as the canary in federalism’s coal mine, showcasing the underlying reasons for jurisdictional conflict in all areas of law. And they indicate the critical need to better cope with the problems of jurisdictional overlap at the level of federalism theory.
Concluding the book, this chapter explores why environmental law regularly raises such thorny questions of federalism, and what the broader federalism discourse can learn from environmental law. Drawing from the theoretical framework that I introduced in FEDERALISM AND THE TUG OF WAR WITHIN (Oxford, 2012: http://ssrn.com/abstract=1991612), Part II reviews the central objectives of federalism, examining the conflicting values they imply and the resulting tension that suffuses all federalism-sensitive governance. Part III evaluates why federalism conflicts are heightened in the context of environmental law. Divisiveness not only reflects the intense competition among federalism values in environmental governance, it also provides key insights into the core theoretical dilemmas of jurisdictional overlap more generally. Part IV probes how environmental law has adapted to manage the challenges of overlap by asymmetrically allocating local, state, and federal authority within various models of collaborative or coordinated governance.
Part V concludes with consideration of what the larger discourse can learn from the dynamic federalism innovations emerging from within environmental governance. Environmental law demonstrates that the most successful multiscalar governance is conducted through processes of consultation, compromise, and coordination that engage stakeholders at all levels of jurisdictional scale. The broader federalism discourse is increasingly recognizing environmental federalism for lighting a path away from the entrenched “zero-sum” model, which treats every assertion of authority at one jurisdictional level as a loss of authority for the others. Many areas of environmental law doubtlessly remain imperfect in their implementation of these ideals. Still, every-day environmental governance shows us that, at the end of the day, good interjurisdictional governance is essentially a project of negotiation.
Friday, December 5, 2014
Yale, Stanford, and Harvard Law Schools announce the 16th session of the Yale/Stanford/Yale Junior Faculty Forum to be held at Harvard Law School on June 16-17, 2015 and seek submissions for its meeting.
The Forum’s objective is to encourage the work of scholars recently appointed to a tenure-track position by providing experience in the pursuit of scholarship and the nature of the scholarly exchange. Meetings are held each spring, rotating at Yale, Stanford, and Harvard. Twelve to twenty scholars (with one to seven years in teaching) will be chosen on a blind basis from among those submitting papers to present. One or more senior scholars, not necessarily from Yale, Stanford, or Harvard, will comment on each paper. The audience will include the participating junior faculty, faculty from the host institutions, and invited guests. The goal is discourse on both the merits of particular papers and on appropriate methodologies for doing work in that genre. We hope that comment and discussion will communicate what counts as good work among successful senior scholars and will also challenge and improve the standards that now obtain. The Forum also hopes to increase the sense of community among American legal scholars generally, particularly among new and veteran professors.
TOPICS: Each year the Forum invites submissions on selected topics in public and private law, legal theory, and law and humanities topics, alternating loosely between public law and humanities subjects in one year, and private law and dispute resolution in the next. For the upcoming 2015 meeting, the topics will cover these areas of the law:
- Civil Litigation and Dispute Resolution
-Contracts and Commercial Law
- Corporate and Securities Law
- Intellectual Property
- International Business Law
- Private Law Theory and Comparative Private Law
- Property, Estates, and Unjust Enrichment
A jury of accomplished scholars, again not necessarily from Yale, Stanford or Harvard, with expertise in the particular topic, will choose the papers to be presented. There is no publication commitment, nor is published work eligible. Yale, Stanford, or Harvard will pay presenters’ and commentators’ travel expenses, though international flights may be only partially reimbursed.
QUALIFICATIONS: There is no limit on the number of submissions by any individual author. To be eligible, an author must be teaching at a U.S. law school in a tenured or tenure-track position and must not have been teaching at either of those ranks for a total of more than 7 years. American citizens teaching abroad are also eligible provided that they have held a faculty position or the equivalent, including positions comparable to junior faculty positions in research institutions, for less than seven years, and that they earned their last degree after 2005. International scholars are not eligible for this forum, but are invited to submit to the Stanford International Junior Faculty Forum. We accept co-authored submissions, but each of the coauthors must be individually eligible to participate in the JFF. Papers that will be published prior to the forum in June are not eligible.
PAPER SUBMISSION PROCEDURE:
Electronic submissions should be sent to Jennifer Minnich ( jminnich at law.harvard.edu), with the subject line “Junior Faculty Forum.” The deadline for submissions is March 1, 2015. Remove all references to the author(s) in the paper. Please include in the text of the email and also as a separate attachment a cover letter listing your name, the title of your paper, your contact email and address through June 2015, and which topic your paper falls under. Each paper may only be considered under one topic. Any questions about the submission procedure should be directed both to Adriaan Lanni ( adlanni at law.harvard.edu) and her assistant, Jennifer Minnich ( jminnich at law.harvard.edu).
FURTHER INFORMATION: Inquiries concerning the Forum should be sent to Gabby Blum ( gblum at law.harvard.edu) or Adriaan Lanni ( adlanni at law.harvard.edu) at Harvard Law School, Richard Ford ( rford at stanford.edu) at Stanford Law School, or Christine Jolls ( christine.jolls at yale.edu) or Yair Listokin ( yair.listokin at yale.edu) at Yale Law School.
Robin Craig (Utah) has posted What the Public Trust Doctrine Can Teach Us About the Police Power, Penn Central, and the Public Interest in Natural Resources: A Tribute to Joe Sax (Environmental Law) on SSRN. Here's the abstract:
One of Joseph Sax’s recurring scholarly concerns was how to effectuate and preserve the substantial and long-term public interest in natural resources, and he was drawn to the public trust doctrine in part because that doctrine explicitly recognizes that public rights in those resources, particularly water, do exist. Following in Sax’s tradition, this Article argues that the public trust doctrine can serve to illuminate structural and analytical problems with regulatory takings doctrine, which has had a much more difficult time acknowledging the role of public rights. In particular, while governments do sometimes directly represent the rights of the Public — under the public trust doctrine, for example, as the trustee of submerged lands and as protector of the Public’s right of navigation — the Penn Central takings analysis both overdeterminedly conflates government action with the public interest, eliding the fact that the private property owner is also a member of the Public who benefits from government action, and denies the Public its full independent status as a third interest-holder in any property rights analysis. Using examples from water law, coastal land use regulation, and fisheries management, this Article argues that regulatory takings doctrine unnecessarily impedes the urgent need for property law to evolve to meet the demands of a post-exploitation United States and that the Public and communitarian approach on property rights that the public trust doctrine offers presents a much more useful perspective on property rights for our changing future.
Wednesday, December 3, 2014
The American Law Institute has announced it will begin work on the Restatement of the Law Fourth, Property in 2015. From the website: "The new Property Restatement aims to make property law more accessible and easier to understand. The project will address classification of entitlements, possession, accession, and acquisition; ownership powers; protection of and limits to ownership rights; divided and shared ownership; title and transfer; easements, servitudes, and land use; and public rights and takings."
Henry Smith (Harvard) will serve as Reporter. The Associate Reporters are: John Goldberg (Harvard), Dan Kelly (Notre Dame), Brian Lee (Brooklyn), Tanya Marsh (Wake Forest), Tom Merrill (Columbia), and Christopher Newman (George Mason).
Lee Fennell (Chicago) has posted Agglomerama (BYU Law Review) on SSRN. Here's the abstract:
Urbanization presents students of commons dilemmas with a pressing challenge: how to achieve the benefits of proximity among people and land uses while curbing the negative effects of that same proximity. This piece, written for the 2014 BYU Law Review Symposium on the Global Commons, focuses on the role of location decisions. It casts urban interaction space as a commons that presents the threat of overgrazing but that also poses the risk of undercultivation if it fails to attract the right mix of economic actors. Because heterogeneous households and firms asymmetrically generate and absorb agglomeration benefits and congestion costs, cities embed an interesting collective action problem — that of assembling complementary firms and households into groupings that will maximize social value. After examining the nature of this participant assembly problem, I consider a range of approaches to resolving it, from minor modifications of existing approaches to larger revisions of property rights.
Tuesday, December 2, 2014
Christopher Essert (Queens) has posted Property in Licenses and the Law of Things (McGill Law Journal) on SSRN. Here's the abstract:
A theoretical account of property rights needs to identify what, if anything, is distinctive about property rights as opposed to other sorts of rights; what makes them the sorts of rights that they are. An important and prominent account of the distinctiveness of property rights claims that they are rights to things. I argue against this view: I show that a government-issued licence (to fish or to drive a taxi or to operate a radio station, say) is not a right to a thing but should nevertheless count as a property right. I consider two different arguments for this rights-to-things view: one is based on the Hohfeldian structure of property rights, and one relies on the importance of information costs in the law of property. While each of these arguments teaches us important lessons about property, none can properly support the conclusion that property is rights to things. I suggest that abandoning the rights-to-things view of property can lead to important insights into property theory more generally.
Monday, December 1, 2014
This documentary about race and intergenerational wealth transfer may be of interest for some. Here's the blurb: "Black Heirlooms is a documentary about wealth in America from an intergenerational perspective. When the 86-year-old matriarch, Mee-Mah Royal was hospitalized after a stroke, her 8 children became irreconcilably divided over her care and small estate. Through the stories of her children, grandchildren, and supporting interviews with prominent researchers, lawyers, and financial planners– Black Heirlooms examines the need for intergenerational planning to transfer family wealth, traditions, and values."
In honor of the beginning of the month, here are the most downloaded property articles on SSRN over the last 60 days:
1. [372 downloads] Trying Times: Important Lessons to Be Learned from Recent Federal Tax Cases
Nancy A. McLaughlin (Utah) & Stephen J. Small (Independent)
2. [230 downloads] The Behavioral Law and Economics of Fixed-Rate Mortgages (and Other Just-So Stories)
Todd J. Zywicki (George Mason)
5. [96 downloads] Using the New Equal Protection to Challenge Federal Control Over Tribal Lands
Alexander Tallchief Skibine (Utah)
7. [93 downloads] Doctrinal Categories, Legal Realism, and the Rule of Law
Hanoch Dagan (Tel Aviv)
8. [93 downloads] Libertarianism and Originalism in The Classical Liberal Constitution
Ilya Somin (George Mason)
10. [84 downloads] Abuse of Property Right Without Political Foundations: A Response to Katz
Mitchell N. Berman (Penn)
Thursday, November 27, 2014
In honor of the holiday, we usually post an article about how private property saved the pilgrims. Benjamin Powell, an economist at Suffolk, gives a good version of the story here. You can find the same tale on any number of more conservative websites (see here, here, and here).
This year we post a rebuttal:
Historians say that the settlers in Plymouth, and their supporters in England, did indeed agree to hold their property in common — William Bradford, the governor, referred to it in his writings as the “common course.” But the plan was in the interest of realizing a profit sooner, and was only intended for the short term; historians say the Pilgrims were more like shareholders in an early corporation than subjects of socialism.
“It was directed ultimately to private profit,” said Richard Pickering, a historian of early America and the deputy director of Plimoth Plantation, a museum devoted to keeping the Pilgrims’ story alive.
The arrangement did not produce famine. If it had, Bradford would not have declared the three days of sport and feasting in 1621 that became known as the first Thanksgiving. “The celebration would never have happened if the harvest was going to be less than enough to get them by,” Mr. Pickering said. “They would have saved it and rationed it to get by.”
The competing versions of the story note Bradford’s writings about “confusion and discontent” and accusations of “laziness” among the colonists. But Mr. Pickering said this grumbling had more to do with the fact that the Plymouth colony was bringing together settlers from all over England, at a time when most people never moved more than 10 miles from home. They spoke different dialects and had different methods of farming, and looked upon each other with great wariness.
Bill Fischel's take on the dispute rings true:
In Property in Land, Bob Ellickson pointed out that early settlers often adopted communal modes of production. He suggested that it was a strategy to deal with risk. Once risks are reduced by acquaintance with the new environment, they can adopt more conventional modes of production, including private property. So it could be that the story of starvation followed by prosperity is not simply a parable about private property. In an unknown environment, perhaps neither private nor communal property would have been all that productive, and communal was chosen in order to reduce the risk of starvation. Once that risk was reduced by acquaintance with the new environment, private property could be re-established in order to increase production.
Tuesday, November 25, 2014
Maybe privitized streets aren't such a good idea:
In September, the operator of the Indiana Toll Road filed for bankruptcy, eight years after inking a $3.8 billion, 75-year concession for the road with the administration of Governor Mitch Daniels.
The implications of the bankruptcy for the financial industry were large enough that ratings agency Standard & Poor’s stepped in immediately to calm nerves. In a press release, the company attempted to distinguish the Indiana venture from similar projects, known as public-private partnerships, or P3s: “We do not believe this bankruptcy will slow the growth of current-generation transportation P3 projects, which have different risk characteristics.”
But the similarities between the Indiana Toll Road and other P3s involving private finance can’t be ignored. And as we’ll see, even the differences aren’t all good news for the American public. Once hailed as the model for a new age of U.S. infrastructure, today the Indiana deal looks more like a canary in a coal mine.
Troy Rule (Arizona State) has posted Legislating for Solar Access: A Guide and Model Ordinance on SSRN. Here's the abstract:
Solar energy development is an increasingly attractive way to diversify a community’s energy portfolio, stimulate job creation, reduce pressure on electricity grids, and protect natural resources. Recognizing the potential benefits of solar power, state and local governments across the United States have introduced net metering programs, tax credits, subsidies, renewable portfolio standards, and countless other policies in recent years to promote solar energy within their boundaries.
The growing popularity of solar energy has also increased the demand for laws that adequately protect solar energy systems from shading by neighbors. Such laws, commonly known as solar access laws, can reduce one source of uncertainty associated with installing solar energy systems on privately-owned property and can thereby encourage greater overall investment in distributed solar energy development. Fortunately, compared to most other forms of solar energy legislation, solar access laws are inexpensive to adopt and administer.
This Guide and its accompanying Model Solar Access Ordinance seek to educate local government officials about solar access laws and to assist them in adopting such laws within their respective jurisdictions. Building upon existing research by Solar ABCs and others, this Guide shows how solar access ordinances can be a low-cost way for local governments to better promote distributed solar energy.
Monday, November 24, 2014
In recent years, as the boom really exploded, the number of reported spills, leaks, fires and blowouts has soared, with an increase in spillage that outpaces the increase in oil production, an investigation by The New York Times found. Yet, even as the state has hired more oil field inspectors and imposed new regulations, forgiveness remains embedded in the Industrial Commission’s approach to an industry that has given North Dakota the fastest-growing economy and lowest jobless rate in the country.
The Times found that the Industrial Commission wields its power to penalize the industry only as a last resort. It rarely pursues formal complaints and typically settles those for about 10 percent of the assessed penalties. Since 2006, the commission has collected an estimated $1.1 million in fines. This is a pittance compared with the $33 million (including some reimbursements for cleanups) collected by Texas’ equivalent authority over roughly the same period, when Texas produced four times the oil.