Friday, February 3, 2017

#PropertySchmooze Panel 1: Takings Revisited

Greetings from the Property Schmooze at Texas A&M!  The first panel is on takings law.  We're about to start, so time to start blogging!  

The first paper is by Tim Mulvaney (Texas A&M), who presented his work, Non-Enforcement Takings.  Tim raises the question of whether the lack of enforcing a propety law could serve as the basis of a taking.  For example, assume there are two land owners, A and B.  The state decides not to enforce a property law against A.  Query:  can B sue for a takings for the non-enforcement of the law against A?  To highlight his example, Tim discussed the recent case, Harris County v. Kerr.  In Kerr, there were two sets of land owners--upstream land owners and downstream land owners.  In the 1980s Harris County made a flood plan which said the county would not allow the upstream owners to develop their property in such a manner as to injure the downstream owners.  Since the paper is about non-enforcement, you can all guess what happened next.  The upstream owners were allowed to develop their property and that development caused problems for the downstream owners.  The downstream owners brought a takings claim againt the county and the Texas Supreme Court easily dismissed their claims.  Tim's paper asks whether that was the right answer and whether there is a broader category of non-enforcement takings.

Next up is Chris Serkin (Vanderbilt) who presented his work, Prospective Grandfathering, which is co-authored with Michael Vandenbergh (Vanderbilt).  Chris' talk commences with the story of natural gas. As he said, we need to move from coal to natural gas soon, but we can't stop at natural gas; in 30 years we need to have developed technology so as to no longer be required to use natural gas.  Chris' story creates a taking in the future--we know today that we need natural gas companies to build up, but only build up for 30 years, and then Congress needs to regulate the natural gas market in such a way as to eliminate natural gas.  Chris' point is that we know a takings case will happen in the future, so can we do anythig about it?  He answers the questionin the affrmative with the idea of prospectively grandfathering in (and thus eliminating) future takings litigation.  His plan is to require regulators to announce but delay the adoption of new regulations, as well as accelerate cost recovery for individuals like natural gas utilities, and in doing so, the future government would be immunized from the takings claim.  In other words, Chris advocates having natural gas companies charge more today to preemptively make up for predicted future industy downturns, thereby removing the future takings claim.     

The last paper for the Takings panel is from Greg Stein (University of Tennessee).  Greg presented his paper, Reverse Exactions.  Greg's work looks at exactions and asserts that current exaction law tips the scale too favorably towards the applicant because the state is too concerned about takings liability and thus allows too many applicants to get their permits or applicants to pay too little money to offset the externalities caused by their permit.  To combat this, Greg's paper argues that we should have a reverse exactions claim whereby members of the community could bring a claim asserting that the state did not acquire enough of an offset from any negative consequences from issuing the permit and demand that more offset must be extracted.  

Panel two on fair housing is up next!

February 3, 2017 in Takings | Permalink | Comments (0)

Wednesday, February 1, 2017

Remembering a Civil Law Property Giant: Athanassios Yiannopoulos

It is with great sadness that I post regarding the passing of a civil law property giant—my colleague, my mentor, my partner on numerous reform efforts to the Louisiana Civil Code property articles, my intellectual opponent on some issues, and above all, my very dear friend, Thanassi Yiannopoulos.

A plethora of tributes have been written about Thanassi, and undoubtedly many more are in the works. For the purposes of this blog, I wanted to share what Thanassi did for property law.

At this point, many of you may be wondering, “who is this professor you are honoring?” Given that Thanassi did not regularly comment on American common law property, it is unsurprising that many American property law scholars may have missed his contributions. But one should not mistake a lack of commentary in traditional American law reviews for a lack of knowledge. Thanassi Yiannopoulos knew more about common law property than most. Thanassi’s extensive knowledge did not stop with common law property or general precepts of civil law property. Thanassi was the only legal scholar I know of who brought to the table a vast knowledge of current English law, old English law, German civil law, French civil law from the early 1800s, French civil law today, Greek civil law, ancient Greek legal systems, and much, much more.

All of this knowledge Thanassi brought to the relatively small state of Louisiana. Arriving at Louisiana State University in 1958 (and moving to Tulane in 1979), Thanassi took the Louisiana legal system by storm. Beginning in the 1960s, Thanassi helped lead a systematic revision of the Louisiana Civil Code. Thanassi’s particular expertise was in property law, and thus he was the reporter in charge of revising most of the property law articles. Throughout the 1970s and 1980s Thanassi led the charge in amending all of Louisiana’s Civil Code articles relating to property law. Everything from acquisitive prescription to usufructs to nuisance to enclosed estates to classification of things, Thanassi had a leading hand in crafting current Louisiana law.

Thanassi’s impact on Louisiana property law ran far deeper than just revising the legislative text itself; he also wrote prolifically, trying to explain Louisiana property law. He is the author of three treatises on the subject, as well as the editor for the entire Louisiana Civil Code. He wrote numerous civil law textbooks and countless law review articles. If that scholarship was not enough to influence Louisiana property law, Thanassi also spent large amounts of his time consulting on property cases. He was cited in more than 600 cases and now doubt will be cited in many, many more posthumously.

It is hard to identify exactly what Thanassi’s biggest contribution was to Louisiana property law and, truly, civil law property around the world because he made so many contributions. As a colleague both at Tulane and on the state’s main law reform organization, what I will miss most about Thanassi, though, is the comparative knowledge he brought to every meeting, every conversation. Louisiana property law is better today because the man centrally responsible for drafting it in the 1960s, 1970s, and 1980s knew the successes and shortcomings of Greek property law and German property law and French property law and English property law and American property law. That vast knowledge is hard to acquire, but something I learned from Thanassi that we should all strive for, as understanding the property systems of others can help us improve our own.

February 1, 2017 | Permalink | Comments (0)

Schmoozing it Up with Property Law at Texas A&M

Texas A&M University School of Law’s new Program in Real Estate and Community Development Law, will be hosting its first Real Property Law Schmooze on Feb. 2-4, 2017. 

The Program is co-founded and co-directed by Aggie Law Professors Lisa T. Alexander, who has a joint appointment in Texas A&M University’s Department of Landscape Architecture and Urban Planning, and Thomas W. Mitchell, who has a joint appointment in Texas A&M University’s Department of Agricultural Economics. 2017.02.01.lisa-alexander

The Program seeks to ​generate innovative research and create curricular offerings. It also seeks to develop policy solutions to meet both urban and rural development challenges in the 21st century. Its mission is to understand the evolving role of law in these developments and to design novel legal strategies to enhance both equity and efficiency in urban and rural redevelopment.

“America is experiencing an increasing urban and rural divide,” Alexander said. “This rift took center stage in the recent election.”

“As urbanization becomes the dominant world migration pattern over the next 50 years, the law will play a central role in determining how rural areas retain their vitality and sustainability, as well as how urban centers can equitably, efficiently and sustainably accommodate the urban influx,” she said.

The Program is one of the few law school programs to focus on both urban and rural real estate, housing, land use, and community development law challenges.

The Real Property Law Schmooze will be the first event sponsored by the Program. The Schmooze will afford property law scholars the opportunity to share unpublished works-in-progress or early-stage ideas with other leading property law scholars at Texas A&M University and beyond.

In its inaugural year, the Real Property Law Schmooze will feature approximately 20 legal scholars from southern law schools in the U.S. In future years, the Schmooze will extend invitations to scholars throughout the U.S. and abroad, based upon topics or regions. The keynote speaker this year will be Lee Anne Fennell, Max Pam Professor of Law, Co-director of the Kreisman Initiative on Housing Law and Policy, and Ronald H. Coase Research Scholar at the University of Chicago Law School. She will present her paper, “Searching for Fair Housing.” While at Texas A&M Law School, Professor Fennell will also speak for the Law and Social Science Program, convened by Professors Nuno Garoupa and Gary Lucas and hosted by Professor Milan Markovic.

2017.02.01 thomas-mitchell“We are excited to host the kickoff event for Texas A&M University School of Law’s Program in Real Estate and Community Development Law. We look forward to building this new program by working with the fantastic group of professors on our faculty who are affiliated with the program, together with leading real property and community development practitioners in Texas and beyond. For each of our program’s activities, we intentionally are seeking to address property and community development issues both within urban and rural communities whether domestically or internationally. The preeminent property law scholars who will participate in this year’s inaugural Real Property Law Schmooze will present scholarship on just the range of property issues that reflects the scope of our Program’s mission,” said Mitchell.

If you are interested in what happens at the Schmooze, don’t worry—we’ll be live blogging the event!   

February 1, 2017 | Permalink | Comments (1)

Monday, January 30, 2017

To Quiet Title or Not To Quiet Title: That is Mark Zuckerberg’s Question

This past week, an unlikely candidate stepped into the media spotlight of building walls to keep people out of particular property: Mark Zuckerberg.

Zuckerberg, CEO and founder of Facebook, does not regularly take political stances, but on occasion he does. For example, last Friday Zuckerberg posted on Facebook about his dismay in President Trump’s executive order halting admission to the United States for refugees and placing tightened vetting requirements for those coming to the United States from predominantly Muslim countries. As anyone reading this post likely knows, the executive order was blocked in part, such that foreigners entering the country would not be deported immediately upon arrival.

So how in the world did Zuckerberg manage to step in this s&*# show?

Zuckerberg didn’t exactly step into President Trump’s executive order woes, but the Facebook founder did get himself into his own hot water by proposing his own private walled off property. In case the chaos of President Trump’s first few days has drowned out other news, here’s the skinny to catch you up.

A couple of years ago, Zuckerberg purchased a lot of land in Hawaii to build a private sanctuary for his family. He paid lots of money, somewhere around $100 million, for a lot of beachfront property, approximately 700 acres. So far, this just sounds like lifestyles of the rich and famous,1 so what gives? What Zuckerberg allegedly did not understand when he purchased the property was that a handful of Kamaʻāina families owned small parcels of land within the 700 acre Zuckerberg estate.

So just picture it: there’s Zuckerberg, his wife, their child, enjoying their massive estate, bar-b-queing on their backyard beach, and having a few local families crash the shin dig. To use Facebook terminology:

2017.01.30 Angry Emoji

Having locals walking around his pad wasn’t exactly Zuckerberg’s idea of a good time, so his cracker jack legal team did what most zealous advocates with a rich client would do in Hawaii—they filed quiet title and partition actions which would force the handful of families who own parcels within Zuckerberg’s estate to sell off those parcels to the highest bidder at an auction. It doesn’t take a Ph.D in Economics to realize who the highest bidder at the auction would be.

While Zuckerberg was within his legal rights to file the action, he was on the wrong side of public opinion. The concern with quiet title actions like the ones Zuckerberg originally filed is that native families are usually forced off their property. The problem isn’t exclusive to Hawaii or the Zuckerberg’s of the world; quiet title and partition actions happen in lots of states. As Thomas Mitchell (Texas A&M) said recently on the topic, you tend to find this anywhere there is a marginalized group of individuals.  The problem of native Hawaiian landowners being bought out of their property was enough of an issue that the Hawaii Legislature adopted the Uniform Partition of Heirs Property Act which empowers native individuals to keep their land when threatened with quiet title and partition actions by giving native individuals legal tools such as the right of first refusal.  The Hawaiian law went into effect on January 1, 2017; Zuckerberg filed his lawsuits in December 2016, just barely missing the enforcement of the new law.   

As a Facebook junkie, Zuckerberg is used to getting more “likes” than he is angry protests, so upon a cry of public outrages at his legal maneuvering, he made the smart PR move—he apologized for his legal actions and dropped the lawsuits, promising to work out a better solution that would have local support. What will that solution be? Only time will tell, but hopefully it won't involve the building of any walls.


1 Yes, many years ago President Trump was on the TV show.  Google it.  

January 30, 2017 | Permalink | Comments (0)

Wednesday, January 25, 2017

ALPS goes to University of Michigan


The cat is finally out of the bag:  ALPS will be going to the University of Michigan for its annual conference!  

The Association for Law, Property & Society (ALPS) is an organization for those engaged in scholarship on all aspects of property law and society.  Its annual meeting brings together scholars from different disciplines to discuss their work and to foster dialogue among those working in property law, policy, planning, social scientific field studies, modeling, and theory. Prior meetings have averaged approximately 150 participants from across the globe.  ALPS will hold its 8th meeting at the University of Michigan in Ann Arbor, Michigan on May 19–20, 2017.

Submissions on any subject related to property law and the practices that shape property norms and institutions are welcome.  ALPS has a strong commitment to international and interdisciplinary diversity, and paper topics reflecting that commitment are encouraged. 

ALPS accepts both individual paper submissions and proposals for fully formed panels (usually 3 to 5 presenters, sometimes including not only papers but also films or multimedia outputs).  Submissions may be of full paper drafts and completed projects or early works-in-progress.  Submissions should include an abstract of no more than 250 words.  The abstract must include:   (1) the name of the submitting scholar, (2) the scholar’s institution, and (3) an email contact for the author or authors.  If submitting a fully formed panel, please insure that an abstract for each paper is included in the submission and that each abstract clearly identifies the fully formed panel the paper is a part of.

The deadline for submitting papers and panels is February 24, 2017, but registration for the conference will continue to be available after that date. Authors and panel proposers will be notified of the acceptance of their individual submissions or proposed panel by no later than March 10, 2017.

A discounted early registration rate of $150 is available until March 10, 2017. After that date, the registration rate is $175. The registration rate for full-time students (JD, PhD, or other program) is $50. 

To register and submit an abstract, click here.

Please direct all inquires to 

January 25, 2017 in ALPS | Permalink | Comments (0)

Saturday, January 21, 2017

CFP: Fordham International & Comparative Urban Law Conference


From Nestor Davidson and the good folks over at the Fordham Urban Law Center:

4th Annual International & Comparative Urban Law Conference

Law and the New Urban Agenda

Cape Town, South Africa - July 17th & 18th, 2017

Call for Conference Participants

The Fordham Urban Law Center, in partnership with the University of Cape Town (UCT) and UN Habitat, is pleased to announce a call for participation in the 4th Annual International and Comparative Urban Law Conference.  The Conference will be held on Monday July 17th and Tuesday July 18th, 2017 at UCT in Cape Town, South Africa.   

The Conference will provide a dynamic forum for legal and other scholars to engage diverse international, comparative, and interdisciplinary perspectives in urban law.  The Conference is open to urban law topics across a broad spectrum, such as:

  • Structure and workings of local authority and autonomy
  • Urban and metropolitan governance and finance
  • Economic and community development
  • Housing and the built environment
  • Unique challenges facing cities in developing nations and the Global South
  • Urban public health
  • Migration and citizenship
  • Urban equity and inclusion
  • Sustainability and resilience

While the Conference will foster a broad scholarly dialogue about cities and legal systems in comparative and international perspective, we specifically invite submissions focusing on the role of law in the New Urban Agenda adopted this past October by the United Nations at the Habitat III Conference in Quito, Ecuador.  In particular, the Conference seeks to investigate legal tools to advance the New Urban Agenda in a manner that is democratic, sustainable and equitable.

PROPOSAL SUBMISSION:  Please submit a proposal (maximum 500 words) to Gilberto Vargas, Associate Director, Fordham Urban Law Center, at  Please put "[name of proposed paper]" in the subject line of your email. If you have a draft paper, please include it with your proposal. Participants do not need to have prepared a formal paper in order to join the program.  The Center is also pleased to be able to award partial travel grants for this Conference, although funds are limited.  Please indicate the extent of your funding needs.  Deadline for proposal submissions:  March 6, 2017.

PUBLICATION:  The Urban Law Center has developed a book series compiling cross-cutting global perspectives on law and urbanism, with a core focus on comparative enquiry.  If you are interested in potential publication, please indicate this interest at the time of your proposal submission.

ABOUT THE URBAN LAW CENTER:  The Urban Law Center at Fordham Law School in New York City is committed to investigating the role of the law and legal systems in contemporary urbanism through scholarship, pedagogy, programming, and applied research partnerships. Please visit for more details about the Center.

ABOUT UCT:  Founded in 1829, The University of Cape Town is the oldest university in South Africa. UCT aspires to be the premier academic meeting point between South Africa, the rest of Africa and the world. Please visit for more details about UCT.

January 21, 2017 in Conferences, Home and Housing | Permalink | Comments (0)

Friday, January 20, 2017

Call for Contributions: Challenging Traditional Notions of Property in Land Use Planning, Journal of Law and Social Policy

(With thanks to Nick Blomley for sharing this)


Special Volume: Challenging Traditional Notions of Property in Land Use Planning, Journal of Law and Social Policy

The Journal of Law and Social Policy (JLSP) seeks to encourage debate and dialogue on important issues at the intersection of law and society, particularly as they impact low income individuals and disadvantaged communities. In addition to scholarly articles, the Journal encourages critical commentaries, reflective essays—including work that speaks to the impact of law and social policy on human experience—and book reviews for the Voices & Perspectives section of each volume. Non-traditional and creative works are encouraged, for example creative non-fiction and poetry.

In Spring 2017, the JLSP will be publishing a special volume highlighting contributions made to an interdisciplinary workshop on property and planning law. The premise of the workshop was that property is rooted in a complex set of social relationships with a plurality of legal orders and a messy collection of interests, with papers exploring alternative ownership models, intersections of indigenous and municipal interests, and the politics of planning.

The JLSP is now welcoming contributions to the Voices & Perspectives section that relate to the theme of the special volume. In particular, we are looking for essays, interviews, photography, art or other creative works exploring the relationship between property and planning. Possible contributions include non-fiction essays on expressions of resistance, representative displays of place-making, interviews with activists and community leaders, or mapping and photographic imaging.

The deadline for submissions is Monday, February 20, 2017.

To submit your work or to ask any questions, please contact special volume editors Alexandra Flynn ( or Donald Leffers (, or JLSP Editor-in-Chief, Janet Mosher (   

January 20, 2017 | Permalink | Comments (0)

Thursday, January 19, 2017

Maps of the day: the new winter

PrecipitationI just came back inside from helping dig my neighbor's car out of the snow pile in front of his house. The last two weeks have provided two snow days for the local school district--one because of too much snow, and yesterday because of too much melting snow. And Boise, which isn't particularly used to significant snow fall, 300 miles to the south of my home in North Idaho, has experienced six snow days of its own.

These are the types of conditions that often cause the cynical to say, "I could use some of that climate change right now."

But for parts of the West, this apparent bounty of snow hides one of the most significant changes will we face in a climate-altered future.

These maps reflect current data from the NRCS SNOTEL sites across Idaho, which measure precipitation and snow pack, and help predict water availability for the coming year. The first is how much total precipitation has fallen in the current water year (since Oct. 1) as a percent of 1981-2010 median. That map shows well above normal amounts of precipitation. 

But the real story is in the second map, which shows snow water equivalent in the current snow pack. This is a more useful measure of water availability, since is reflects the amount of water stored in our snow pack reservoirs--water that will be available next summer as the snow pack mSnow water equivalent Idahoelts. That map tells a different story, with most of North Idaho well below normal, notwithstanding the piles of snow in our front yards. Much of that above average precipitation fell in the early winter as rain, and has already made its way downstream to the ocean.

In the lower elevation mountains of the Pacific Northwest, climate change will raise snow levels, bring more rain and less snow, and shift the peak of the hydrograph to earlier in the year.  The snow reservoirs will hold less water, and less water will be available everyone: farmers, cities, hydroelectric dams, and anadromous fish. 

And as these maps demonstrate, we are seeing those effects today. More rain, less snow, and a less predictable water future.

January 19, 2017 in Land Use, Natural Resources | Permalink | Comments (0)

Harvard Law School Postdoc Fellowship Opportunities


From our friends at the Harvard Law School, check out these great opportunities for up-and-coming property law scholars:

Postdoctoral Fellowship in Private Law
The Fellowship is a two-year, residential postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers with a primary interest in private law. Private law embraces traditional common law subjects (property, contracts, and torts), as well as adjacent statutory areas such as intellectual property and commercial law. It also includes resurgent areas, such as unjust enrichment, restitution, equity, and remedies. Fellows have been selected from among recent graduates, young academics, and mid-career practitioners who are committed to pursuing publishable research likely to make a significant contribution to private law scholarship.

Fellows devote their full time to scholarly activities in furtherance of their individual research agendas. In addition, fellows contribute to the intellectual life of the Project and the Harvard Law School community through mentoring students, presenting their research in and attending faculty workshops and seminars, helping to organize and participating in Center events and projects, and blogging.

Qualcomm Postdoctoral Fellowship in Private Law and Intellectual Property
The Qualcomm Fellowship is a two-year, residential postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers with a primary interest in intellectual property and its connection to one or more of property, contracts, torts, commercial law, unjust enrichment, restitution, equity, and remedies. Fellows have been selected from among recent graduates, young academics, and mid-career practitioners who are committed to pursuing publishable research likely to make a significant contribution to private law scholarship.

Fellows devote their full time to scholarly activities in furtherance of their individual research agendas. In addition, fellows contribute to the intellectual life of the Project and the Harvard Law School community through mentoring students, presenting their research in and attending faculty workshops and seminars, helping to organize and participating in Center events, and blogging.

January 19, 2017 | Permalink | Comments (0)

Thursday, January 12, 2017

Pomeroy on Property Law and Air Rights

Faculty-chad-pomeroyChad J. Pomeroy (St. Mary's) has posted All Your Air Rights Belong to Us (Northwestern Journal of Technology and Intellectual Property) on SSRN. Here's the abstract:

Privacy and property rights are tricky subjects for a variety of reasons. One reason is that they have a unique relationship with each other, and this Article focuses on one of those areas of intersection—that of air rights and invasion of privacy. This is a timely topic due to the advent of drones, and this Article will argue that drone surveillance constitutes common law trespass and that any statute or regulation that permits such activity is in derogation of common law and so should be subject to particularly careful thought and consideration.  

This is not as straightforward a thesis as one might perhaps think because both property and privacy rights have a murky past and have gone through iterative formulations as society has sought to achieve the right balance between the public and private spheres. Privacy has historically focused on expectations of privacy, and property rights have traditionally provided such expectations, but the legally recognized nature of each has not changed over time to keep pace with technological innovation. This has led to a situation where the kinds of rights and causes of action that have traditionally protected individuals no longer suffice in a variety of circumstances.

In particular, the use of drone technology to engage in sophisticated surveillance presents significant challenges to our existing legal framework. Part I of this Article examines the history of privacy law in some detail, and Part II does the same with respect to the common law of airspace property rights. When these two areas of the law are examined in tandem, it becomes apparent that drone surveillance violates rights that society generally wants to protect and that society has historically protected. That protection, however, is now lacking. There is some reason for the failure of the law to keep up with this type of new technology, and Part III examines the historical “aircraft exception” that many may now believe justifies the law’s acquiescence in the face of drone surveillance. Ultimately, though, this Article concludes that this common law exception is not applicable to drones and that, as such, the law should adapt to protect the public from drone surveillance. Part IV concludes this analysis by making a number of recommendations that state and federal legislatures and various administrative agencies would do well to consider when passing laws and promulgating rules regarding drone technology.

January 12, 2017 in Recent Scholarship | Permalink | Comments (1)

Saturday, January 7, 2017

Berger on the Fiscal Wisdom of Regulatory Takings Compensation

BergerBethany Berger (Connecticut) has posted The Illusion of Fiscal Illusion in Regulatory Takings (American University Law Review) on SSRN. Here's the abstract:

In January 2016, the Supreme Court granted certiorari in Murr v. Wisconsin, the first regulatory takings case to be decided by the Roberts Court. Because regulatory takings doctrine has little direct support in constitutional text, history, or precedent, arguments to expand regulatory takings rest heavily on policy grounds. This Article argues that the central efficiency argument for expansion — often dubbed “fiscal illusion” — is based on a surprising mistake. Without compensation, the argument goes, governments operate under a fiscal illusion, because from their perspectives, their actions are costless. The problem is that this argument makes no sense as a description of the actual costs to governments.

Taxation is the main way governments get revenue, and most taxes depend on the value of property and its permissible uses. If governments restrict land so as to reduce its value or the income produced by it, its residents, or its patrons, they generally already feel the loss in their budgets. If the restriction creates benefits, those too are reflected in tax revenues. While there are limitations to the accuracy and efficacy of the tax signal, efficient regulations should roughly have a net positive effect on governmental revenues, while inefficient ones should have a net negative effect. Fully compensating owners, in contrast, does not lead the government to accurately internalize societal costs — it rather adds a new and much larger cost. Because this cost usually far exceeds revenue gains, governments may rationally forgo even efficient regulations. Owner compensation, in other words, does not correct fiscal illusion. It creates it. 

Revealing the illusion of fiscal illusion leaves standing much older arguments that compensation is required as a matter of fairness. But by clearing away the main efficiency justification for direct compensation, this Article permits clearer-eyed assessment of whether and to what extent fairness may require compensation, and prevents measures in the name of efficiency that in fact undermine it.

January 7, 2017 | Permalink | Comments (0)

Thursday, January 5, 2017

AALS Property Law Section Works-in-Progress Program


Greetings from AALS! Yesterday I had the pleasure of attending the Property Law Section's works-in-progress program here in (what is finally today) sunny San Francisco. Donald Kochan (Chapman) kicked off the event with an introduction of the speakers and explained that the purpose of the session was to give faculty an opportunity to share their early to mid-stage reseach projects with senior colleagues in the field. Each presenter was paired with a mentor who commented on the paper and gave feedback.

First, Gregory Ablavsky (Stanford) shared his recent project "The Rise of Federal Title" that looks at the problems of title and land rights in the development of the American West. He notes in his historical piece that although the federal government has typically been viewed as distributing lands and settling land disputes, it actually played a much larger role than is currently appreciated when it came to the actual development of the American system of entitlements to land.

Next was Molly Brady (Virginia) who shared her research on the damagings clause in various state constitutions. She noted that the origins of the provision relate to states wanting to provide a remedy for situations where private property was physically damaged by public works projects (such as street grading). In this work she examines the untold story of the damagings clauses, and notes that state courts have taken a very narrow approach to their application due largely to the influence of federal takings law.

John Infranca (Suffolk) then explained his current work-in-progress--"(Communal) Life, (Religious) Liberty, and Property"--, which examines the role that the concepts of freedom of religion and the right to property play in the recognition of rights more broadly. He explains and then unpacks the ways in which religious freedom and property rights are generally viewed as having a larger role in shaping norms and group rights.

Vanessa Casada Perez (Texas A&M) shared her law and economics work that explores the role that sharing economy platforms play in dealing with issues of parking. She outlines whether local government decisions to ban such platforms/companies can be justified under a public trust theory of public spaces. She then analyzes the up- and down-sides of local government regimes that seek to prohibit the use of pubic spaces for profit-making enterprises using sharing economy innovations.

Lastly, Thomas Simmons (South Dakota) gave a presentation on his research into homestead laws, including exemptions from seizure by creditors and the rights of spouses under martial property regimes. His project gives special attention to the evolution of homestead laws from statute to state constitutional provision.

Great job to the Property Law Section for a really interesting and engaging program!

January 5, 2017 | Permalink | Comments (0)

Friday, December 30, 2016

Serkin on Insurance for Local Governments and Takings Claims

SerkinChristopher Serkin (Vanderbilt) has posted Insuring Takings Claims (Northwestern University Law Review) on SSRN. Here's the abstract:

Local governments typically insure themselves against all kinds of losses, from property damage to legal liability. For small- and medium-sized governments, this usually means purchasing insurance from private insurers or participating in municipal risk pools. Insurance for regulatory takings claims, however, is generally unavailable. This previously unnoticed gap in municipal insurance coverage could lead risk averse local governments to underregulate and underenforce existing regulations where property owners threaten to bring takings claims. This seemingly technical observation turns out to have profound implications for theoretical accounts of the Takings Clause that focus on government regulatory incentives. This Article explores the impact of insurance on land use regulations. In the process, it reveals important insights about public insurance more generally and offers a novel explanation for the burgeoning land use innovation in cities compared to the relative stagnation of land use in the suburbs. It concludes by suggesting new ways for promoting local land use regulations that risk generating takings claims.

December 30, 2016 in Recent Scholarship | Permalink | Comments (0)

Monday, December 19, 2016

CFP: Hawaii Law Review Sharing Economy Symposium


This just in from our friends at the University of Hawai'i William S. Richardson School of Law:

Save the Date!  The Volume 39 Symposium will take place on Friday, February 17, 2016. One of our panels will focus on the topic of regulation in the context of the home sharing economy. Those wishing to submit articles for the symposium on topics intersecting property law and the sharing economy can get more info here. The Law Review will be accepting submissions through February 17, 2017, for publication in April/May. You can also contact the co-editor-in-chief of the Law Review, Ross Uehara-Tilton, by clicking here.

December 19, 2016 | Permalink | Comments (0)

Friday, December 9, 2016

ABA RPTE Professors' Corner: How Genetics Might Affect Real Property Rights

Professors’ Corner
FREE monthly webinar featuring a panel of law professors, 
addressing topics of interest to practitioners of real estate and trusts/estates
Members of the AALS Real Estate Transactions Section are welcome to register and participate!
Tuesday, December 13, 2016
12:30 p.m. Eastern/11:30 a.m. Central/9:30 a.m. Pacific
How Genetics Might Affect Real Property Rights
·        Mark A. Rothstein, Herbert F. Boehl Chair of Law and Medicine, University of Louisville School of Medicine
·        Laura Rothstein, Professor of Law and Distinguished University Scholar, Louis D. Brandeis School of Law, University of Louisville
·        Wilson Freyermuth, John D. Lawson Professor and Curators’ Distinguished Teaching Professor, University of Missouri School of Law
Because genomic information is becoming more common in health records, individuals and entities with an economic interest in the future health status of individuals will be tempted to use this information to predict the health risks of individuals entering into real property transactions. The list of potential users of this information includes mortgage lenders and insurers, real estate sellers, senior living centers, and retirement communities. The law has yet to regulate this aspect of genetic information and its use.    
Register for this FREE webinar at
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Legal Education and Uniform Laws Group

December 9, 2016 | Permalink | Comments (0)

Monday, December 5, 2016

Call for Presentation and Panel Proposals for Arizona State University's Third Annual Sustainability Conference of American Legal Educators

Arizona State University has issued a call for presentations and panels for its Third Annual Sustainability Conference of American Legal Educators on May 12, 2017. Carol Rose will be this year's keynote speaker. ASU will pay up to $500 lodging/transportation reimbursement for all presenters. Proposal details here.

In addition, associated with the conference is the Morrison Prize Contest, which awards $10,000 for "the most impactful sustainability-related legal academic paper published in North America during the previous year." NOTE: the deadline for the Morrison Contest is Dec. 15, but you need only submit five offprints of your previously published work.

Thanks to Troy Rule for sharing information about the conference.


December 5, 2016 in Conferences | Permalink | Comments (0)

Thursday, December 1, 2016

Yael Lifshitz on Rethinking Original Ownership

Yael Lifshitz has posted Rethinking Original Ownership, forthcoming in the University of Toronto Law Journal. This work is related to Yael's doctoral dissertation in New York University's JSD Program. Here is the abstract: XYael_Lifshitz_Goldberg.jpg,qitok=DJ1f_Nmf.pagespeed.ic.fAp9WaxrH3 

At the genesis of property, an initial allocation of entitlements takes place. Existing property scholarship identifies two main rules for assigning original ownership – ‘first possession’ and ‘accession’ – and positions them one against another. This article challenges the conventional binary division and the dominance of either first possession or accession as ‘pure’ allocation principles, arguing instead that the ownership of new resources is often allocated through hybrid mechanisms that combine the two rules. This article offers an analysis of hybrid rules and their utility through a novel and contemporary case study of the ongoing allocation of property in wind energy. 

December 1, 2016 in Articles | Permalink | Comments (1)

Wednesday, November 30, 2016

Fischel on Homevoters and the Growth Machine

FischelBill Fischel at Dartmouth's Department of Economics has posted The Rise of the Homevoters: How the Growth Machine Was Subverted by OPEC and Earth Day on SSRN. Bill prepared the paper as part of a conference at the Kreisman Initiative on Housing Law and Policy at the University of Chicago. It will be included in a publication emerging from that conference. Here is the abstract:

In the 1970s, unprecedented peacetime inflation, touched off by the oil cartel OPEC, combined with longstanding federal tax privileges to transform owner-o ccupied homes into growth stocks. The inability to insure their homes’ newfound value converted homeowners into “homevoters,” whose local political behavior focused on preventing development that might devalue their homes. Homevoters seized on the nascent national environmental movement, epitomized by Earth Day, and modified its agenda to serve local demands, thereby eroding the power of the prodevelopment coalition called the “growth machine.” The post-1970 shift in the American economy from industrial employment to knowledge-based services rewarded college graduates and regions that specialized in software and finance. Residents of suburbs in the larger urban areas of the Northeast and West Coast used existing zoning and new environmental leverage to protect the growth rate of their home values. The regional spread of these regulations has slowed the growth of the economy and perpetuated regional income inequalities. I argue that the most promising way to modify this trend is to reduce federal tax subsidies to homeownership.


November 30, 2016 | Permalink | Comments (0)

Thursday, November 24, 2016

Happy Thanksgiving from Property Prof Blog!

Happy Thanksgiving from all of us at Property Prof Blog! May you be with family, friends, and loved ones today, eating too much turkey, tofu-rkey, cornbread dressing, green beans, mashed potatoes, sweet potatoes, pumpkin pie, pecan pie, and, as it turns out, kale! Yes, you read that right: kale is allegedly “king” this Thanksgiving, at least according to the American Farm Bureau Federation. This year, Americans purchased more kale for Thanksgiving than they did mashed potatoes, brussel sprouts, or tofu. Collard greens still outrank kale for Thanksgiving food purchases, but not by much. This means that when I teach Property next semester and talk about agricultural lands and crops as property, I’m using kale as my example crop.

Happy Turkey (Tofu-rkey) Day to all!

2016.11.24 TG Food Photo

November 24, 2016 | Permalink | Comments (0)

Sunday, November 20, 2016

Property and SEALS

It may be chilly where you are, but the bright, sunny SEALS is just around the corner! From July 31 to August 6, legal scholars of all disciplines will gather in Boca Raton, Florida to discuss the finer points of the law and enjoy a few cocktails in the sun. Property scholars, fear not, there will be plenty of discussion groups and panels for you! The Property Law team, lead by Marc Roark (Savannah), Al Brophy (UNC), Jamila Jefferson-Jones (UMKC), and myself (Tulane), have put together the following discussion groups and panel proposal for SEALS. If you are interested in participating in any of the below groups/panels, please email Marc Roark.

Discussion Group 1: Property Law before the Current Court
During the Fall 2016 term, SCOTUS has taken on several property related cases.  Murr v. Wisconsin presents a takings challenge to conventional zoning rights in the face of potential vested rights and the relevant parcel question.  Fair housing reemerges in two consolidated cases before the Court: Bank of America v. Miami and Wells Fargo & Co. v. Miami. And Venezuela v. Helmerich & Payne International, seeks to clarify when a foreign government may be sued in U.S. courts for seizing property located in that country but owned by a U.S. firm.  Property scholars will discuss the impact of these decisions on property jurisprudence, theory, and function.  

Discussion Group 2: Property, Retroactivity, and Obergefell
In what is thought to be the first decision of its kind in the nation, a judge in Bucks County Pennsylvania recently issued a ruling allowing retroactive recognition of a same-sex common-law marriage. Dr. Sabrina Mauer and Dr. Kimberly Underwood, a gay couple entered into a common law marriage in the early 1990s.  They were married in a ceremony in 2015 and three months later, one spouse died.  The court held that the marriage actually dated back to the 1990s, which had a number of impacts for Social Security rights and other property that would be the surviving spouse's.  In striking contrast, an Alabama judge undid a succession distribution of $1 million because at the time the man died, Alabama didn't recognize same sex marriage, so his spouse could not inherit.  The deceased's mother inherited about $1 million.  Post-Obergefell, the surviving spouse successfully got the succession reopened and a judge said the deceased's mother had to pay the surviving spouse the $1 million she had received because it was rightly owned by the surviving spouse. This discussion group will consider the retroactivity of Obergefell and how that can impact property rights, be they inheritance, marital/community property, etc.

Panel: Property and Protests
Protests often run against established property regimes, whether they are private property rights, zoning and ordinance enforcement by cities, or claims for property.  This panel will present papers around the question of protest as they impact property claims.  

November 20, 2016 | Permalink | Comments (1)