Monday, May 16, 2016
(Photo Credit: Rawstory.com)
The good people over at the Homeless Rights Advocacy Project (housed at the Seattle University School of Law) recently produced a series of briefs on various legal and policy issues relating to homelessness. These reports will certainly be of interest to those teaching property (particularly with an emphasis on social policy and housing). Click here to access the briefs. Cribbing from the Project's release page:
The new reports examine the impacts of increasingly popular laws and policies that criminalize homelessness, such as prohibitions on living in vehicles, sweeps of tent encampments, pet ownership standards, and barriers to access at emergency shelters.
"Our research in 2015 started an important conversation, both locally and nationally, about treating people with compassion and fairness under the law," said Professor Sara Rankin, HRAP's faculty director. "These new reports take that conversation to the next level."
HRAP students conducted extensive legal research and analysis to complete the briefs, conducting interviews with a wide range of experts (including people experiencing homelessness); surveying municipal, state, and federal laws; and reviewing legal standards set by previous court decisions.
"We found that common homelessness myths are refuted by statistics, experience, case law, and common sense," said Justin Olson, a third-year law student. "These are the issues that people experiencing homelessness struggle with every day."
"The reaction by many cities to visible poverty has been to try to make it invisible using methods like homeless encampment sweeps," said Samir Junejo, also a third-year law student. "However, it's clear that we cannot sweep the problem of homelessness under a rug and hope it goes away."
Prejudice and unconstitutional discrimination against the visibly poor continues, Professor Rankin said. The new reports identify specific common problems and offer effective, legally sound alternatives.
Key findings of the 2016 reports:
- Nearly one-third of Washington cities surveyed ban people from living in their vehicles, even temporarily. Seattle has the highest number of ordinances against vehicle residency (20). Ordinances in Tacoma, Aberdeen, and Longview likely violate the U.S. Constitution.
- Business improvement districts can function as quasi-governmental agencies, regulating public space in ways that can unfairly target the visibly poor. The Metropolitan Improvement District in Seattle, for example, conducted 22,843 trespass and wake-up visits from 2014-15, a rate of roughly 62 interactions per day.
- The assumption that people experiencing homelessness can simply go to an emergency shelter is deeply flawed. Barriers to shelter access include lack of capacity, lack of accommodations for families, rules against unaccompanied youth, unsanitary or unsafe conditions, and sobriety requirements.
- "Sweeps" of homeless encampments are ineffective, traumatizing to residents, and potentially unconstitutional.
- Pets contribute to the emotional well-being of people experiencing homelessness, but pet owners face constant attention, harassment, and scrutiny by both passersby and law enforcement officers. Licensing requirements, anti-tethering laws, and standards of care laws unfairly target the visibly poor.
- Immigrants and refugees are particularly vulnerable to homelessness. Factors include economic challenges, language barriers, education barriers, housing instability, and legal status.
(Hat tip: Sara Rankin)
Tuesday, May 10, 2016
I am in recovery.
Recovery from spending two back-to-back weekends chaperoning eight-year-old girl sleepovers.
During the last weekend of April, I took my daughter and her Brownie Troop camping. Sure, thirteen little ones look cute standing on the dock making funny faces after fishing, but at 3pm when the heavens open and you are standing amid a rain storm with a group of screaming second graders, they are not quite as adorable. Or when 2am rolls around and the girls are like whac-a-moles—you get one in the tent in her sleeping bag and another one pops up. Again, not the precious angels shown here.
The next weekend (aka three days ago), my daughter had a sleep over to celebrate her eighth birthday. There were games, there were ice cream sundaes, there were high-pitched squeals. There was staying up until the wee hours of the morning to make sure the girls stayed down all night, and there was waking up before sunrise because, well, the girls were up and I like the downstairs of my house too much to let them have unsupervised control over it for any lengthy period of time.
While chaperoning these weekends of elementary school bliss, I realized that I could teach the better part of my 1L property class to the girls using the experiences they were having. It was a real life, in the moment type of class a la Jerry’s field class at the University of Idaho. It was, in the words of Tony the Tiger, grrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrreat.
I started at the very beginning, asking “what is property?” The girls looked at me like I was crazy, but then, so do my 1Ls when I ask the same question. Are your thoughts property? Is your persona property? Is your body property? All of these questions were dealt with during my chaperoning weekends.
8-year-old #1: (high-pitched yelp) She’s touching me! She’s touching me!
8-year-old #2: (higher-pitched yelp) She started it! She touched me first!
Me: (after drinking a sip of beer) Everyone keep your hands to yourself. Your body is yours, though we don’t want to call your body your “property” as that has negative connotations. But you have full rights to exclude everyone else from your body, unless parts of your body or organs have been removed, in which case you have no rights to them. See Moore.
8-year-olds #1 and #2: (looking at me like I have two heads) Huh?
Me: Well, you see there was a guy in California . . . . (8-year-olds run off, having forgotten what they were fighting about and now sharing the common thought that I’m nuts, not unlike my 1L property students)
Next, I taught about the Tragedy of the Commons.
Me: (putting out four large, family-sized bags of potato chips that were sufficient to feed an army) Snack time!
All 8-year-olds: (gulping down chips like they have not been fed for days) Gimme! She got more chips than I did! (munch, munch, munch) I want more! (smack, smack, smack)
Me: Sigh. (drinks longer sip of beer) I will divide the chips into even amounts for you, otherwise you will overconsume the chips out of fear that someone else will get your chips, thereby depleting all of our chips, and leaving us with no more snack time resources. This is a good time for me to tell you a story. Gather ‘round everyone for a cattle-grazing tale by a man named Garrett Hardin . . .
My 8-year-old: (whispering) Mom, please don’t embarrass me.
Me: Siiiiiigh. (opens another beer)
Then we moved into what makes up the proverbial bundle of sticks of property rights by first looking at the right to exclude.
8-year-old #1: (in a whining voice because she has a belly ache caused by overconsuming chips) She’s laying on my sleeping bag and pillow!
8-year-old #2: (in an equally whiny voice) I like yours more than mine. Let’s trade.
8-year-old #1: I want mine! Make her give me mine!
Me: Everyone has to use their own sleeping bag. No one touch other people’s stuff. Your sleeping bag is your own personal, private property so you have the ability to exclude everyone else from your sleeping bag.
8-year-old #1: (whispering in my 8-year-old’s ear) What is your mom talking about?
My 8-year-old: (opens her eyes wide, glaring at me with that “please be quiet” look) Mooooooom!
Having multiple kids sleeping in the same tent naturally leads to a discussion about the right to include.
8-year-old #1: (tears streaming down her face) They won’t (sob) let me (sob) in the tent!
Me: Everyone in the tent come out.
Three girls come out, looking sheepishly.
Me: You can’t exclude anyone from the tent. Everyone gets the right to use the tent. The tent is like a public thing or a quasi-public thing. Everyone has a right to . . .
8-year-old #1: (no longer crying) Do y’all want to go fishing?
All 8-year-olds: YAY! (they run off)
Me: Sigh. (shotgun second beer)
Fishing brings us to a lesson in the rule of capture.
8-year-old #1: I caught a fish! I caught a fish! I caught a fish! (waiving around a fishing rod with a small bass hanging on the end, still stuck on the hook)
Me: Hold still and let me take the fish off the hook. (insert mild expletives under my breath as I get stuck by the hook while removing the fish) There! (throw the fish into the bucket that is holding all of the fish)
8-year-old #2: Ooooh! I want your fish! (sticks hands in the bucket)
8-year-old #1: She’s touching my fish!
Me: Don’t bother the fish. That’s her fish because she caught it. When you capture something that is a res nullius, like a wild bass, it becomes yours under the rule of capture. The rule of capture is really fascinating because . . .
8-year-old #3: We’re catching tadpoles over here!
8-year-old #1 and 2: FUN! (recently caught fish is dropped on the ground and jumps around, finding its way back into the lake before I can grab it)
Catching tadpoles with nets allowed for a lesson in future interests and, shocking as it may be, the RAP (or at least the fundamental ideas behind the RAP).
8-year-old #1: (to 8-year-olds #2 and 3) You can use the net now, but after y’all use it, you have to give it back to me.
8-year-old #4: I want a turn!
8-year-old-#1: I gave the net to 8-year-olds #2 and 3 and then I get the net back.
8-year-old #4: (looking at me) She won’t let me have a turn!
Me: (looking at 8-year-old #1) You can’t control who uses the net that long after it’s been in your possession. You can only control the use of the net for 21 minutes after your possession of it because otherwise you would be exercising too much long-term control over the net and for the good of all of us on this camping trip, we want the net to be more transferable and usable by lots of different people so . . .
8-year-old #2: People are going hiking! Let’s go! (drops net into the lake such that I have to wade in to grab it)
Eventually, the fishing, tadpole-hunting, and hiking came to an end and we commenced roasting weenies and s’mores. I brought with us some long roasting sticks and put them out for the girls to use, which prompted a good discussion on adverse possession.
8-year-old #1: (tugging on my shirt while pointing at essentially all of the other 8-year-olds) She took my roasting stick!
Me: (thinking “why did I agree to be the Brownie Troop leader?”) Are you sure it was yours?
8-year-old #1: (confidently) Yes! (pointing aimlessly at the table behind her) I put my stick on this corner of the table three hours ago and told everyone not to touch it, but she (again, pointing at the collective group) picked it up and has been using it to roast two hot dogs and four marshmallows.
Me: (taking a deep breath) She’s been possessing the stick for a pretty long time. I think the stick is now hers. After you adversely, physically, openly possess property for a long enough period of time, that property becomes yours.
8-year-old #1: That’s not fair.
Me: I know it seems unfair, but there are a lot of reasons we say the adverse possessor gets the property. It requires you, the true owner, to pay attention to your marshmallow roasting stick instead of just leaving it, unattended on the table. It creates stability in title so 8-year-old #2 eventually can be confident the roasting stick she’s using is hers and won’t be taken away. It encourages her to use the roasting stick and develop it, shape it, bend it, into the best roasting stick she can make . . .
8-year-old #1: Chocolate!!!! (runs off when a new box of Hershey chocolate bars is opened)
Me: Sigh. (realizes beer is not strong enough so opens up flask of bourbon)
Finally, we all learned about the virtues of easements.
Me: Okay girls, everyone get in their sleeping bags and close their eyes. It’s time to go to sleep.
8-year-old #1 moves her sleeping bag to be right in the pathway I’ve created for the girls to exit the tent
Me: Put your sleeping bag back where you had it. We need to leave a pathway for folks to get out of the tent.
All 8-year-olds in unison: (in a voice that says “I’ll do anything to stay awake a little longer, even listen to your crazy lectures”) Why?
Me: Well, someone may need to potty in the middle of the night, so we need to have an easement so y’all can exit the tent. When you have an easement, you cannot block the use of that easement because . . .
All 8-year-olds: Zzzzzzzzzzzzzz.
There you have it. Property 101 through the eyes of an 8-year-old. We didn’t quite cover everything—I haven’t yet figured out how to work mortgages into the conversation—but we covered a lot. The conversations didn’t go exactly as I’ve described above. The girls were not nearly this whiney, in fact they were all actually pretty good, and while I'm not a particularly cool mom, I am a cool enough mom to not mention Garrett Hardin to my daughter’s friends. But all of the general activities described above did occur and the girls had a great time, which may be more than I can say for all of my 1Ls. Who knows, maybe they even took away a few lessons in property law.
Monday, May 9, 2016
Professors’ Corner's FREE monthly webinar featuring a panel of law professors, addressing topics of interest to practitioners of real estate and trusts/estates.
Sponsored by the ABA Real Property, Trust and Estate Law Section Legal Education and Uniform Laws Group
Tuesday, May 10, 2016
12:30 p.m. Eastern/11:30 a.m. Central/9:30 a.m. Pacific
A Lawyer’s Guide to the Law of Public Art
Tyler T. Ochoa, Professor of Law, High Tech Law Institute, Santa Clara University School of Law
Anthony L. François, Senior Staff Attorney, Pacific Legal Foundation, Sacramento, CA
Moderator: Christopher K. Odinet, Assistant Professor of Law, Southern University Law Center
The use of art in public spaces has captivated the minds of federal, state, and local policymakers in recent years, with some cities even requiring that private developers include public art in all new projects. Moreover, ownership of public art has drawn the attention of lawyers and advocates, particularly when it comes to competing property and management rights between the public, the artist, landowners, and interested third parties. This program begins with an overview of the intellectual property rights in connection with public art, explaining the differences between the rights in the intangible work and the rights in the physical object itself. The program continues with a case study of the City of Oakland's art requirement for private real estate developers, exploring the property and related legal issues that surround such regimes.
Register for this FREE webinar by clicking here.
Thursday, May 5, 2016
This article considers fragmented property systems – the phenomenon of contested, separated or overlapping sub-systems within a national property jurisdiction. One example is circumstances of property despite law. Globally, as many as a billion people claim de facto property without recognition by law in urban informal settlements and agro-pastoral or forested areas. Another example is property without transition to law. Many households in the developing world regulate land markets through local mechanisms notwithstanding opportunities or requirements to use law. The article provides a conceptual frame for the emergence of property system fragmentation based on the private coordination of property relations. The article argues that fragmentation emerges in complex property systems where law attempts to displace property coordination mechanisms, but fails to induce a critical mass of property participants to alter coordination strategies. A focus on coordination provides a means to combine the methodological individualism of economic narratives with collective variables highlighted by other perspectives on property such as anthropology and complex systems theory.
Monday, May 2, 2016
Wei Wen (University of New England) has posted How American Common Law Doctrines May Inform Mainland China to Achieve Certainty in Land Sale Contracts (Asian-Pacific Law & Policy) on SSRN. Here's the abstract:
This paper explores one of the most significant problems confronting Mainland China in relation to contract and property law today, which is, whether or not written form is mandatory for land sale contracts. In practice, Chinese courts have delivered contradictory cases in relation to contractual form. Some courts regard the written form as being mandatory and therefore no contractual remedies are available to enforce oral land sale contracts. In contrast, other courts hold the opposite view that oral contracts may still have some degree of contractual effect. This results in uncertainty throughout Mainland China, which may cause injustice and unfairness to claimants and may undermine the authority of the law and the courts. This paper argues that the solution to the problem is to propose a legal reform initiative to articulate that written form is mandatory for land sale contracts. This initiative will end the contradictory cases and ensure claimants are treated equally at law in this particular matter.
In order to support and underpin the legal reform initiative, this paper utilizes American doctrines to enrich the Chinese literature and draws on the American experience (particularly Professor Lon Fuller's and Professor Karl Llewellyn's analysis) in establishing that written form is desirable for land sale contracts in Mainland China. This is through a comparative law approach known as functionalism that examines the similarities and differences of the compared jurisdictions.
Thursday, April 28, 2016
The Transactional Records Access Clearinghouse (TRAC), housed at Syracuse University, is a super helpful organization that I've used for a number of years now. The group issues TracReports that provide free monthly information on, among other things, civil litigation throughout the U.S. federal district courts. One item of interest that the group reports on deals with the number of new foreclosure filings each month. Check out this latest report:
The latest available data from the federal courts show that during March 2016 the government reported 505 new foreclosure civil filings. According to the case-by-case information analyzed by the Transactional Records Access Clearinghouse (TRAC), this number is up 12.7 percent over the previous month when the number of civil filings of this type totaled 448. The comparisons of the number of civil filings for foreclosure-related suits are based on case-by-case court records which were compiled and analyzed by TRAC (see Table 1).
When TRAC last reported on this matter, foreclosure lawsuits had declined from a peak reached in May and June of 2012 but seemed to have bottomed out in January 2014. Indeed, as can be seen in Figure 1, the monthly count remained relatively stable from that point until about a year ago. When foreclosure civil filings for March 2016 are compared with those of the same period in the previous year, their number was up by nearly one third, or 32.7 percent. Filings for March 2016 are still substantially lower than they were for the same period five years ago however. Overall, the data show that civil filings of this type are down 25.1 percent from levels reported in March 2011.
Top Ranked Judicial Districts
Relative to population, the volume of civil matters of this type filed in federal district courts during March 2016 was 1.6 per every million persons in the United States. One year ago the relative number of filings was 1.1. Understandably, there is great variation in the per capita number of foreclosure civil filings in each of the nation's ninety-four federal judicial districts. Table 2 ranks the ten districts with the greatest number of foreclosure lawsuits filed per one million population during March 2016.
The District of Nevada — with 15.9 civil filings as compared with 1.6 civil filings per one million people in the United States — was the most active through March 2016. The District of Nevada was ranked first a year ago, while it was ranked fourth five years ago.
The District of Rhode Island ranked second and also ranked second a year ago.
The Southern District of Illinois now ranks third.
Recent entries to the top 10 list were Vermont, the Northern District of Georgia (Atlanta) and the Western District of Kentucky (Louisville), which are ranked seventh, eighth and sixth, respectively.
The federal judicial district which showed the greatest growth in the rate of foreclosure civil filings compared to one year ago — up 700 percent — was the Western District of Kentucky. Compared to five years ago, the district with the largest growth — 239 percent — was the Northern District of Florida.
Sunday, April 24, 2016
Chris Odinet (Southern) has posted The Unfinished Business of Dodd-Frank: Reforming the Mortgage Contract (SMU Law Review) on SSRN. Here's the abstract:
The standard residential mortgage contract is due for a reappraisal. The goals of Dodd-Frank and the CFPB are geared toward creating better stability in the residential mortgage market, in part, by mandating more robust underwriting. This is achieved chiefly through the ability-to-repay rules and the “qualified mortgage” safe harbor, which call for very conservative underwriting criteria to be applied to new mortgage loans. And lenders are whole-heartedly embracing these criteria in their loan originations — in the fourth quarter of 2015 over 98% of all new residential loans were qualified mortgages, thus resulting in a new wave of credit-worthy homeowners that are less likely than ever before to default. As a result of this and other factors, the standard form residential mortgage contract, with its harsh terms and overreaching provisions, should be reformed. This is necessary not only due to the fact that such terms should no longer be needed since borrowers are better financially positioned than in the past, but also because of a disturbing trend in the past few years where lenders and their third party contractors have abused the powers accorded to them by the mortgage contract — mostly through break-in style foreclosures. This Article argues for a reformation of the Fannie Mae/Freddie Mac standard residential mortgage contract and specifically singles out three common provisions that are ripe for modification or outright removal.
April 24, 2016 in Common Interest Communities, Home and Housing, Law & Economics, Mortgage Crisis, Real Estate Finance, Real Estate Transactions, Recent Cases, Recent Scholarship | Permalink | Comments (0)
Please see the attached call for panels and papers for the 2016 Society of American Law Teachers (SALT) Teaching Conference! Proposals are due by June 15, 2016. We look forward to seeing you in Chicago this fall!
Friday and Saturday, September 30 and October 1, 2016
The John Marshall Law School, Chicago, Illinois
The Central States Law Schools Association 2016 Scholarship Conference will be held on Friday, September 23 and Saturday, September 24 at the University of North Dakota School of Law in Grand Forks, ND.
CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend.
Registration will formally open in July. Hotel rooms are already available, and more information about the CSLSA conference can be found on our website at www.cslsa.us.
Friday, April 22, 2016
I have just returned from a wonderful PostDoc Conference at the Max Planck Institute in Hamburg. This was my first trip to Max Planck and it was outstanding. In fact, beyond outstanding. If you are presented with the opportunity to go, don’t think twice, just say yes.
During the conference, two papers were presented on comparative community property law. The authors, Pablo Quinzá Redondo (University of Valencia) and Paulina Twardoch (L’Université de Silésie à Katowice), do not receive regular shout outs on this blog, so I wanted to highlight their exciting work.
Redondo’s paper, Substantive and Conflict-of-Laws Aspects of Matrimonial Property Regimes in the European Union, detailed the movement over the past five years to codify a conflict-of-law regime for matrimonial property in the EU. Redondo highlights that throughout EU countries, there are differences in both the substantive laws of marital property and the private international law rules. As to the former, the civil law countries of the EU—France, Spain, etc.—have matrimonial property (aka community property), whereas the common law countries like England have what we would term in the United States separate property. With regards to conflict of laws, England and Wales tend to take a lex fori approach, while the other countries have adopted various national conflict-of-law principles. These differences make difficulties for the growing number of cross-border marriages throughout the EU. Redondo analyzes the recent movement throughout the EU to create a unified conflict-of-laws approached for matrimonial property and asserts that such a unified system would be superior to the current system.
Twardoch’s paper, La Proposition de Règlement Européen en Matière de Régimes Matrimoniaux de la Perspective du Droit Polonais, discussed the Polish perspective on the movement to unify EU conflict-of-law rules as they pertain to matrimonial property. Twardoch notes that Poland’s stated dispute with the unification movement has been that the proposed conflict-of-law rules apply to all marriages, including same-sex marriages. (In case it is not obvious, Poland is in the group of EU countries that constitutionally prohibits same-sex marriage.) Twardoch’s task, then, is to examine how application of the proposed EU rules would impact matrimonial property in Poland. She does so by looking at a number of areas of matrimonial property and family law, including prenuptial agreements, obligations of spouses, and inter-spousal donations, to name a few.
Both papers were excellent and deserve mentioning for that reason alone. However, it also reminded me that legal issues arising in the United States occur everywhere. In the United States, there are nine community property jurisdictions. Married couples move regularly, and it is not uncommon for spouses to move from a separate property state to a community property state or vice versa. U.S. courts struggle with what conflict-of-law rules should apply to such spouses. So far, there are at least seven different sets of rules that courts in different jurisdictions have applied to such mobile spouses. (Check out chapter 21 of the textbook Community Property in the United States if you want to read more on this topic.) Following Obergefell, how community property laws, equitable distribution laws at divorce, and a variety of distribution laws at death have caused consternation for judges across the country. One of my co-bloggers, Chris Odinet (Southern University), has written on this topic with a friend of ours, Andrea Carroll (LSU). No doubt more on the topic will be (and should be) written. By watching what happens in the EU, the U.S. may gain insights as to how to handle our similar issues in the area of community property.
NBA star Carlos Boozer once rented his house to Prince and things did not go well:
Chicago Bulls forward Carlos Boozer once rented his Beverly Hills house to Prince, and Boozer's former Duke teammate Jay Williams described Tuesday some of Prince's redecorating.
"Booz told me how he had this massive house ... blue fountain waves kind of came down streaming water that led to the front door and all this great stuff," Williams said on "The Waddle & Silvy Show" on ESPN 1000. "And I remember him calling me, 'Dude, you will never guess, I rode past my house like three times, I had no idea it was my house.'
"Supposedly, Prince changed the front gate to the Prince sign, he changed the master bedroom to a hair salon, he changed the streaming blue waters that led to the front door to purple water, he knocked out walls, he changed the molding on top of the ceiling. Booz was livid. So pissed off, so angry ... He put his Purple Rain stamp on it ... Booz was like, 'I was getting ready to go over there and beat this little man down.' And dude was just like 'Here, Boozer, here is a little check for about a million, it'll take care of everything, get it back the way you want it.' And Booz was like , 'This little man is cool as hell.'"
Boozer did end up suing Prince. You can see the complaint here.
Thursday, April 21, 2016
Jonathan Klick (Penn) & Gideon Parchomovsky (Penn) have posted The Value of the Right to Exclude: An Empirical Assessment (Penn Law Review) on SSRN. Here's the abstract:
Property theorists have long deemed the right to exclude fundamental and essential for the efficient use and allocation of property. Recently, however, proponents of the progressive property movement have called into question the centrality of the right to exclude, suggesting that it should be scaled back to allow the advancement of more socially beneficial uses of property. Surprisingly, the debate between the opponents and detractors of the right to exclude is devoid of any empirical evidence. The actual value of the right to exclude remains unknown.
In this Article, we set out to fill this void by measuring, for the first time, the value of the right to exclude. To that end, we use the passage of the Countryside and Rights of Way Act in England and Wales in 2000 as a natural experiment to provide some empirical insight on this issue. We show that the Act’s passage led to statistically significant and substantively large declines in property values in areas of England and Wales that were more intensively affected by the Act relative to areas where less land was designated for increased access. While property prices may not capture all social value, our findings provide a critical input to the debate regarding access to private property. Given that the access rights provided by the “right to roam” included in the Act represent seemingly minimal intrusions on private property, our findings indicate that property owners view even small restrictions on their right to exclude very negatively.
We believe that our findings are of significant importance to lawmakers in the U.S. as they provide an empirical basis for policymaking in the realms of property and land use. In the U.S., private property rights enjoy constitutional protection under the Takings Clause of the Fifth Amendment. Hence, any attempt to formalize a general right to roam or other intrusions on the right to exclude may require the government to pay just compensation to affected property owners. Our study suggests what the compensation amounts are likely to be. This information would allow law-makers to make better decisions about the social desirability of various land use measures. We would like to emphasize that our findings should not be read as a call against the adoption of a right to roam, or any other public privilege. Our only goal is to furnish a much needed empirical foundation that would permit law-makers to conduct a more precise cost-benefit analysis of different policies.
Steve Calandrillo (Washington), Chryssa Deliganis (Independent), & Christina Elles (Independent) have posted The Vested Rights Doctrine: How a Shield Against Injustice Became a Sword for Opportunistic Developers (Ohio State Law Journal) on SSRN. Here's the abstract:
While the vested rights doctrine is based on an understandable estoppel rationale, developers are increasingly using it as a sword to thwart reasonable regulation instead of as a shield against injustice. Common sense policy has too often been co-opted by opportunistic developers at the expense of the public interest – witness the unfettered explosion in fracking operations across America as well as new urban centers being installed in particularly inappropriate locations, oftentimes in contravention of sensible smart growth or growth management policies. The situation has become so perverse that one elected official argued that manipulation of the vested rights doctrine is “the least sexy but probably one of the most important aspects of environmental law” today.
It is past time that we restore balance to the vested rights doctrine in order to prevent the best intentions of legislatures and public policy makers from going awry. Local governments must have the power to update land use laws and regulations as new information becomes available and as public policy preferences change. This can be done without destroying private property rights as we know them, or imposing unreasonable transaction costs on the development community.
Tanya Marsh (Wake Forest) has posted Because of Winn-Dixie: The Common Law of Exclusive Use Covenants (Miami Law Review) on SSRN. Here's the abstract:
As a condition of entering into a lease for space in a shopping center, tenants with significant bargaining power often require landlords to promise that no other occupant of the shopping center will sell certain goods or services. This promise, contained in the lease, is known as an “exclusive use covenant” because it establishes the beneficiary’s right to be the exclusive provider of particular goods or services in a defined area. Grocery store tenants, like Winn-Dixie, typically require the landlord to promise that no other tenant will sell more than a de minimus amount of food items intended for off-premises consumption. Over the past decade, so-called “dollar stores” retailers, like Dollar Tree, Dollar General, and Family Dollar, selling discount, convenience products, including food items, have aggressively expanded. Grocery store chains, fearing increasing competition from the dollar stores, have sought to enforce their exclusive use covenants against landlords and the dollar stores.
In particular, Winn-Dixie has been involved in litigation against various dollar stores for more than a decade. Winn-Dixie filed a string of lawsuits, each addressing a single violation, until 2011, when it filed lawsuits in federal court against the owners of three national dollar store chains, alleging breaches of its exclusive use covenant at 136 shopping centers in Alabama, Florida, Georgia, Louisiana, and Mississippi. The three lawsuits were consolidated into a single case, Winn-Dixie Stores, Inc. v. Dolgencorp, L.L.C.
On March 5, 2014, the Eleventh Circuit Court of Appeals issued its decision in Dolgencorp. The court considered the interpretation of key terms in the exclusive use covenants, the enforceability of the covenants against third-party tenants, and the remedies available to Winn-Dixie following a breach of the covenants. The opinion concluded years of litigation between the parties, but it also left important questions regarding exclusive use covenants unsettled. This article outlines the history of the dispute between Winn-Dixie and the dollar stores, the doctrinal issues addressed by the Eleventh Circuit, and the lingering uncertainties that face retail landlords and tenants with respect to exclusive use covenants, particularly in Florida.
Tuesday, April 19, 2016
Casey Faucon (Denver) has posted The Suspension Theory: Hurricane Katrina Looting, Property Rights, and Personhood (Louisiana Law Review) on SSRN. Here's the abstract:
In anticipation of Hurricane Gustav, Mayor C. Ray Nagin announced, “Anyone caught looting in New Orleans will go directly to the Big House...You will go directly to Angola Prison, and God bless you if you go there.” In making that announcement, Mayor Nagin undoubtedly had the events following Hurricane Katrina in mind. Three years earlier, Hurricane Katrina engulfed the city of New Orleans. When the storm passed and the waters rose, New Orleans was in chaos. Media reports of people vandalizing and looting stores portrayed the image that the city had disintegrated into a state of anarchy. Such reports depicted the looters as heartless criminals who wrongfully took advantage of the disaster-stricken city. But this negative mentality against looting in the aftermath of natural disasters is not reflected in the Louisiana criminal legislation. The penal code establishes a less harsh punishment for looting that occurs after a state of emergency, as opposed to looting that occurs in any other circumstance.
These are just two examples of the broad spectrum of how the law and society view the actual criminality of looting after natural disasters. Although some people regard the looting of “luxury goods” as unconscionable, others sympathize with and excuse looters who take only “necessity goods.” Perhaps the conscious distinction has less to do with society’s moral perceptions of looting and more to do with society’s perceptions of ownership. Professors Eduardo M. Penalver and Sonia Katyal argue that society negatively views “property outlaws” because such individuals undermine the stability that property laws strive to produce. Looters, as a particular type of property outlaw, contribute to the fracturing of that stable foundation. Instead of dismissing property outlaws as rebellious, subversive characters, Penalver and Katyal suggest that society should embrace the property outlaw as an enabler of the “reevaluation of, and, at times, productive shifts in the distribution or content of property entitlements.”
This Article demonstrates how, after natural disasters like Hurricane Katrina, society’s reaction to looters depends upon the extent to which the looter disrupts the pre-existing property rights under Louisiana property law. To facilitate this discussion, this Article uses a theory first articulated by renowned sociologists and group behavioral theorists Enrico Quarantelli and Russell Dynes — what this Article terms the “Suspension Theory.” This theory illuminates the causal relationship between property rights and societal reactions to looting in different situations.
Luke Meier (Baylor) has posted The Neglected History Behind Preble v. Maine Central Railroad Company: Lessons from the 'Maine Rule' for Adverse Possession (Hofstra Law Review) on SSRN. Here's the abstract:
Under the “Maine Rule” for adverse possession, only possessors having the requisite intent can perfect an adverse possession claim. The Maine Rule has been consistently criticized. The history behind the adoption of the Maine Rule, however, and the purpose it was to serve, have been ignored. This Article fills that void. This inquiry leads to some surprising revelations about the Maine Rule. The Maine Rule was originally adopted so as to distinguish prior Maine cases rejecting adverse possession in mistaken boundary situations. The purpose behind the Maine Rule, then, was to enable — rather than prohibit — adverse possession. The history surrounding the adoption of the Maine Rule has contemporary value; this history powerfully demonstrates the pitfalls of using a claimant’s state of mind as part of an adverse possession analysis.
Sunday, April 17, 2016
Eleven Publishing and Juta have jointly released the two volume book series: Rethinking Expropriation Law. The volumes contain works by Eduardo Peñalver (Cornell), Michael Heller (Columbia), Rick Hills (NYU), Henoch Dagan (Tel Aviv), John Lovett (Loyola-NOLA), Gregory Alexander (Cornell), Bjorn Hoops (PhD Candidate-University of Groningen), Ernest J. Marais (University of Johannesburg), Hanri Mostert (University of Cape Town), Jacques A.M.A. Sluysmans (Radboud University), and Leon C.A. Verstappen (University of Groningen). The work looks fascinating, particularly because it deals with this important issue from so many different and global perspectives.
Volume I is titled Public Interest in Expropriation. Cribbing from the publisher, here's a summary:
This book is the first of a series in which experts engage critically with identified aspects of expropriation law. The internationally diverse group of contributing authors offer valuable insight into the treatment of public purpose/interest related issues as they are canvassed in jurisdictions around the world. Some of these include:
- the public purpose/interest requirement and the definition of the object of expropriation;
- the role of public purpose/interest in distinguishing between expropriation and regulation of property;
- public interest and the classification of expropriatory actions as administrative, statutory or constructive;
- categorising of the notions of public interest and public purpose;
- justifiability of expropriation without compensation;
- consequences of a change in purpose after expropriation has been effected;
- whether an expropriation can be challenged on the basis that less invasive means were available for the state to realise the specific purpose;
- whether the public interest could legitimately entail transfer of expropriated property to a party other than the state.
Volume II is titled Context, Criteria, and Consequences of Expropriation. Publisher's overview as follows:
This book is the second of a series in which experts engage critically with the context, criteria and consequences of expropriation. The State, in the shape of monarchies, dictatorships, or democracies, has been using expropriation to implement its policies since the times of ancient Rome. This book therefore contains contributions on the historical context of expropriation. Despite its age, however, expropriation law is constantly evolving at the national and international level. The contributors show how European human rights law and international soft law instruments shape national criteria and expropriation procedures. They discuss how comparative law and insights from the theory of human flourishing can help to improve the criteria for the justification of expropriation. From comparative and international perspectives, the contributors deal with the criteria that determine whether compensation is due for a regulatory taking, constructive expropriation or excessive regulation of property. The contributors examine the definition of takings and whether the dissolution of condominium constitutes a taking. They uncover how the amount of compensation can play a role in the justification of expropriation. Lastly, the contributors examine the consequences of expropriation for residential communities.
Friday, April 15, 2016
Wian Erlank (North-West University - South Africa) has posted Rethinking Terra Nullius and Property Law in Space (Potchefstroom Electronic Law Journal) on SSRN. Here's the abstract:
With a new era dawning with regard to access to space and an increase in the number of nations capable of reaching and exploiting space, the field of space law as a whole needs to be re-evaluated. One such area where current legal thinking needs to be examined is with regard to the property rights to objects in space. While it was sufficient in the past for governments to frown upon the institutions of ownership in outer space and leave many space-related issues unresolved, one would need to re-examine the current body of space-law and related international instruments in the light of the ability of private enterprises’ and other new players’ ability to partake in and commercially exploit space travel. This paper investigates whether property rights should be available to space-faring nations and individuals, as well as how these rights could be acquired. Also very important is how these rights could be limited or structured in such a way as not to unnecessarily interfere with the aims of current space law. Characteristics such as the impersonality, tangibility, independence, susceptibility to control, and the usefulness and value for mankind of an object in space will once again be of crucial importance when it is necessary to determine if it can be classified as an object with regard to which one can have property rights. This is discussed against the background of objects that are deemed to be res nullius (things belonging to nobody) as well as the theory of terra nullius (land belonging to nobody).
Thomas Simmons (South Dakota) has posted Deploying the Common Law to Quasi-Marxist Property on Mars (Gonzaga Law Review) on SSRN. Here's the abstract:
If and when the first human settlement arrives on Mars, it may be with the intention of staying on permanently. Progress and the spirit of adventure being what they are, the first group of settlers may be joined some time thereafter by a second. In anticipation of two groups of settlers on Mars who may compete over scarce suitable landscapes for sustaining the basic human needs of oxygen, energy, water, shelter and food, a framework of private property rights is necessary. In crafting possible frameworks, the 1967 Outer Space Treaty’s (OST) governing provisions regarding property law must be considered. Existing scholarship has largely failed to properly account for the application of common law precepts to realistic property disputes governed by OST provisions, to fully acknowledge the non-appropriation and common use commands of the OST, which sound, arguably, in quasi-Marxist tones, and to explicate the types of unique property demands of permanent extraterrestrial human settlements. This article maps out two basic common law frameworks for two anticipated varieties of property disputes which adhere to the general and more specific principles contained within the OST while encouraging economically efficient decision-making and sustainable uses of the planet surface.
Thursday, April 14, 2016
Lawrence White (NYU - Econ) has posted Housing, Housing Policy, and Housing Finance: Time for a Re-Assessment (Milken Institute Review) on SSRN. Here's the abstract:
Although the topic of housing – housing prices, housing policy, housing finance – has largely fallen by the wayside as a “hot” news item, these issues remain largely unresolved. This paper reviews the recent history of housing finance and housing policy, examines the realistic policy choices, and offers some recommendations.