PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

A Member of the Law Professor Blogs Network

Friday, November 14, 2014

Who Owns Adam & Eve?


From the LA Times:

The Norton Simon Museum is asking the U.S. Supreme Court to review what its attorneys call a "profoundly misguided decision" by a federal appeals court that has kept alive a lawsuit aimed at wresting away ownership of two of the Pasadena museum's most prized holdings: paired depictions of Adam and Eve by the German Renaissance painter Lucas Cranach the Elder.

The nearly 500-year-old paintings are believed to have been stolen by the Nazis in 1940 from Jacques Goudstikker, a Dutch-Jewish art dealer. His daughter-in-law, Marei Von Saher, sued the museum for their return, in a case that has lasted more than seven years. In June, in a 2-1 ruling, the U.S. 9th Circuit Court of Appeals resurrected Von Saher's case against the museum after it had been dismissed by a federal judge in Los Angeles.

The petition the museum sent this week to the Supreme Court urges it to take up the case because, it contends, the 9th Circuit ruling conflicts with legal principles already upheld by the Supreme Court, and could open the door for other cases that would improperly try to second-guess U.S. foreign policy outcomes.

[...] The foreign policy question at issue in Von Saher vs. Norton Simon stems from the post-World War II U.S. policy known as "external restitution," in which Nazi-looted artworks recovered by American forces were sent back to the countries where they had been stolen. It was left to the postwar governments of the formerly Nazi-controlled nations to invite claims to looted art and judge whether they were valid. The argument is now over whether the Dutch government's handling of the Goudstikker family's claim to "Adam" and "Eve" satisfied the requirements of the external restitution policy.

November 14, 2014 | Permalink | Comments (0) | TrackBack (0)

Blumm & Schaffer on The Federal Public Trust Doctrine

Michael Blumm (Lewis & Clark) and Lynn Schaffer (Lewis & Clark) have posted The Federal Public Trust Doctrine: A Law Professors' Amicus Brief on SSRN.  Here's the abstract:

This amicus brief, signed by more than 50 law professors with over a collective 1100 years of teaching experience, argues that the D.C. Circuit's interpretation that the public trust doctrine is solely a product of state law -- and therefore inapplicable to the federal government -- was erroneous. The brief therefore urges the Supreme Court to review the lower court's decision in Alec L v. McCarthy, 561 F.Appx. 7 (D.C.Cir. 2014).

The brief claims that the public trust doctrine has been misunderstood as purely a matter of state common law when in fact it is an inherent limit on sovereignty antedating the U.S. Constitution, which was preserved by the Framers as a reserved power restriction on both the federal and state governments. Nothing in the Court’s recent decision in PPL Montana v. Montana, 132 S.Ct. 1215 (2012) -- which the lower court misinterpreted -- indicates otherwise.

The federal nature of the public trust doctrine was recognized over a century ago by the Supreme Court in Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892). That decision has functioned as binding federal law and has been so understood by the vast majority of states. Interpreting that decision as an expression of state law is erroneous.

As a constitutionally recognized limit on sovereignty, the public trust doctrine -- unlike a common law doctrine -- is not subject to displacement by congressional statutes. The brief cites numerous opinions of the Supreme Court that have recognized the doctrine’s applicability to the federal government, which reinforce the notion that the Constitution recognizes the public trust doctrine as a reserved power withheld from both the federal and state governments.

November 14, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, November 13, 2014

When Apartment Buildings Are a Nuisance

Michael Lewyn weighs in on the Ashby Highrise fiasco in Houston:

In the recent case of Loughead v. Buckhead Investment Partners, a group of Houston, Texas homeowners filed a common-law nuisance action to prevent a developer from building an apartment building in their neighborhood; the plaintiffs asserted (among other claims) that the apartments caused increased traffic—a claim that would be true of any new housing. Under the law of nuisance, a landowner may recover damages whenever another person uses their land in a manner that causes substantial, unreasonable harm to other landowners. A jury awarded the plaintiffs damages in December 2013, and the verdict will be appealed.

The landowners sued for nuisance because Houston has no zoning code and the city could therefore not legally exclude the apartments—but at common law, something permitted by zoning can still be an actionable nuisance. So if the Loughead action is upheld on appeal, landowners all over the country may become more willing to file nuisance actions to keep out multifamily housing (or for that matter, any other allegedly undesirable land use).

November 13, 2014 | Permalink | Comments (0) | TrackBack (0)

Mulvaney on Temporary Takings

Mulvaney_Tim_100webTimothy Mulvaney (Texas A&M) has posted Temporary Takings, More or Less (Book Chapter) on SSRN.  Here's the abstract:

In accord with the Supreme Court’s 1987 decision in First English, when a property owner successfully challenges a regulation as a taking and the government chooses to repeal that offending regulation, the government must pay compensation for losses sustained during the period for which that regulation was in effect, regardless of whether the regulation originally was enacted in good faith. This book chapter introduces a conception of ownership grounded in humility that recognizes the limited reach of human knowledge and the variability of our normative positions. It suggests that a conception of ownership grounded in humility calls for a more contextual analysis in temporary takings cases than First English and its recent progeny, Arkansas Game and Koontz, allow, and raises for discussion the possibility that such an analysis might appropriately turn in part on whether the governmental entity acted in good faith when attempting to update property rules via regulation.

November 13, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 12, 2014

Chaskin & Joseph on the Transformation of Public Housing in Chicago

Robert Chaskin (Chicago) & Mark Joseph (Case Western) have posted Contested Space: Design Principles and Regulatory Regimes in Mixed-Income Communities Replacing Public Housing Complexes in Chicago (Annals of the American Academy of Political and Social Science) on SSRN.  Here's the abstract:

Chicago is currently implementing the largest and most ambitious effort in the United States to redevelop inner city neighborhoods and address the problems of urban poverty through the “transformation” of public housing. Chicago’s effort is part of a broader policy trend, nationally and internationally, focused on deconcentrating urban poverty and addressing the problems that have become endemic to many public housing communities over the past half-century. At the center of this effort is a stated emphasis on integration — on remediating the negative effects of racial and economic segregation that was so starkly exacerbated and reproduced by past public housing policy. Entailing large-scale demolition, redevelopment, and the relocation of thousands of public housing residents, the effort seeks to reshape urban space, remake urban neighborhoods, and reverse the isolation of public housing residents through their integration into new neighborhoods and into the broader contexts, institutions, and opportunities provided by the city as a whole.

November 12, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 11, 2014

What Do the Election Results Mean for the Keystone XL Pipeline?

Keystone-Pipeline-mapThings look set to move forward, according to Reuters:

Senate Republicans will charge ahead early in 2015 with a bill to approve the long-stalled Keystone XL oil pipeline from Canada, a move that would back President Barack Obama into a corner and set the tone for how the party taking control of Congress will govern the next two years.

The $8 billion project would deliver heavy Canadian oil sands crude from Alberta to Nebraska and make it easier to deliver oil from North Dakota’s Bakken region to the U.S. Gulf Coast. It has languished for six years awaiting presidential approval, which is needed because the pipeline crosses a national border.

Legislation earlier this year to approve the pipeline in a proposed end-run around the administration already had an estimated 57 votes in the 100-member Senate, and is now thought to have a filibuster-proof 61 votes after Republican gains in Tuesday's mid-term elections.

[...]  Keystone legislation would also force Obama to either veto a measure with bipartisan support, or let a project advance that he has vowed to stop if certain emissions criteria are not met.

[...] The pipeline has become a symbol for environmental groups and the oil industry, galvanizing the green movement and forcing the White House to focus on climate change.  For industry, the delay in its approval has come to represent what they say is the Obama administration's over-regulation and hindering of energy development.


November 11, 2014 | Permalink | Comments (0) | TrackBack (0)

Alexander on The Public Use Requirement

Gregory Alexander (Cornell) has posted The Public Use Requirement and the Character of Consequentialist Reasoning (Context, Criteria & Consequences of Expropriation) on SSRN.  Here's the abstract:

How does expropriation fit into a human flourishing theory of property? If we take it that property owners owe members of their communities obligations to provide resources necessary to develop those capabilities that are essential to human flourishing, then what does this require of them in terms of the state’s power to expropriate?

November 11, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, November 10, 2014

There's an App for That: Future Interests


Ned Snow, a property professor at South Carolina, has made a new mobile app to helps students learn future interests.  It’s called Future Interests Made Simple.  The app contains pictures (drawn by the Prof. Snow's children), diagrams, graphics, examples, and lots of practice problems with detailed explanations. It's currently available on iPhones, iPads, and Android phones for $2.99  If your students are asking for more future interest practive problems, this is certainly an economical solution.  You can download the app at the iTunes Store and the Google Play Store.    


November 10, 2014 | Permalink | Comments (0) | TrackBack (0)

ALPS Call for Papers


The Association for Law, Property & Society (ALPS) is a scholarly organization for those engaged in scholarship on all aspects of property law and society.  ALPS will hold its 6 th Annual Meeting at the University Of Georgia School Of Law Athens, Georgia USA, May 1 - 2, 2015.

ALPS welcomes papers on any subject related to property law, including pedagogy, and from a diversity of perspe ctives. As in previous years, we will have both draft paper panels and early works-in-progress panels dedicated to brainstorming scholarship at its beginning stages. We also plan to support early - career scholars in their development and in connecting to me ntors through the conference events.

You may submit an individual paper or a panel (usually 4 presenters). Panel proposals may include a collection of paper presentations, roundtables, or book panels. Paper abstracts should not exceed 250 words. If submitting a panel, please submit a panel abstract and individual paper abstracts.

Registration and paper/panel submission is available through the conference website at

The deadline for submitting papers and panels is February 1, 2015, but registration for the conference will continue to be available after that date. Please do not submit papers and panels after February 1 as part of your registration without having emailed Jim Smith, for permission to submit late. We will do our best to accommodate late submission requests, but can only guarantee that proposals submitted by the February 1 deadline will be able to be considered for the conference.

A discounted early registration rate of $150 is available until February 1, 2015. After that date, the registration rate is $180. The registration rate for full-time students (JD, PhD, or other program) is $50.

November 10, 2014 | Permalink | Comments (0) | TrackBack (0)

Skibine on Federal Control Over Tribal Lands

SkibineAlexander Skibine (Utah) has posted Using the New Equal Protection to Challenge Federal Control Over Tribal Lands on SSRN.  Here's the abstract:

There are today over 55 million acres of land owned by Indian tribes or their members that the Federal government claims are held in trust by the United States for the benefit of these tribes or members. Throughout history, purporting to act as a trustee for the Indians, Congress has enacted laws severely restricting the ability of Indians to make management decisions with respect to these lands. Many of these laws, for instance impose federal approval requirements before these tribally-owned lands can be leased, sold, or otherwise encumbered. This Article calls into question the power of the federal government to impose such restrictions and argues that these laws constitute a denial of equal protection under the Due Process Clause Fifth Amendment. Since 1974, laws made specifically applicable to Indians because of their status as Indians have been held not to involve racial classifications but political ones because these laws do not affect all “Indians” but only those Indians that are also members of Indian tribes. While this holding has been welcomed by tribes when fighting to uphold laws benefitting Indians, it has also impaired their ability to make effective equal protection arguments against laws detrimental to them. The prevailing view is that in order to mount a successful equal protection challenge, Indians would have to show that such laws are not rationally tied to Congress’ unique trust obligations towards Indians. Others take the position that regular rational basis review would be applicable to such equal protection challenges. This Article disagrees with both positions and argues that the new Supreme Court Equal Protection jurisprudence as reflected in cases such as United States v. Windsor (2013) can be successfully used by Indian tribes to attack those laws imposing, only on them, federal approval requirements before such lands can be leased or otherwise encumbered. Under such new jurisprudence a law can be set aside under equal protection either if it was based on unconstitutional animus towards a vulnerable minority or if it did not pass a somewhat more intensive level of review than rational basis. What some scholars have called “rational basis with bite.”

November 10, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, November 7, 2014

Delgado on Land Titles

Richard Delgado (Alabama) has posted Delgado's Darkroom: Critical Reflections on Land Titles and Latino Legal Education (New Mexico Law Review) on SSRN.  Here's the abstract:

Delgado's Darkroom grew out of a talk -- the annual Senator Dennis Chavez Lecture -- that I gave at University of New Mexico. In it, I make a number of points about the failure of legal education to equip minority lawyers to carry out serious law-reform work, especially in the area of land titles and claims.


November 7, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 5, 2014

Map of the Day: Voter ID Laws

Screen Shot 2014-11-04 at 6.50.42 PM

The National Conference of State Legislatures explains the difference between strict and non-strict:

  • Non-strict: At least some voters without acceptable identification have an option to cast a ballot that will be counted without further action on the part of the voter. For instance, a voter may sign an affidavit of identity, or poll workers may be permitted to vouch for the voter. In some of the “non-strict” states (Colorado, Florida, Montana, Oklahoma, Rhode Island, Utah and Vermont), voters who do not show required identification may vote on a provisional ballot. After the close of Election Day, election officials will determine (via a signature check or other verification) whether the voter was eligible and registered, and therefore whether the provisional ballot should be counted. No action on the part of the voter is required. In New Hampshire, election officials will send a letter to anyone who signed a challenged voter affidavit because they did not show an ID, and these voters must return the mailing, confirming that they are indeed in residence as indicated on the affidavit.
  • Strict: Voters without acceptable identification must vote on a provisional ballot and also take additional steps after Election Day for it to be counted. For instance, the voter may be required to return to an election office within a few days after the election and present an acceptable ID to have the provisional ballot counted. If the voter does not come back to show ID, the provisional ballot is not counted. Using the non-strict/strict categorization, 21 states have non- strict voter ID requirements, and 10 have strict requirements.

November 5, 2014 | Permalink | Comments (0) | TrackBack (0)

Horton on Indescendibility

Horton-davidDavid Horton (UC Davis) has posted Contractual Indescendibility (Hastings Law Journal) on SSRN.  Here's the abstract:

Testation is supposed to be comprehensive: when we die, we pass everything we own to our friends and family. However, a growing number of valuable things defy this principle. From frequent flyer miles to virtual property to email and social media accounts, some assets expressly state that they cannot be transmitted by will, trust, or intestacy. This invited contribution to the Hastings Law Journal Symposium in honor of Charles L. Knapp analyzes this trend, which I call “contractual indescendibility.” It shows that consumers who challenge non-inheritability provisions face three obstacles. First, they have to prove an ownership interest in the item. Second, they need to invalidate the indescendibility clause under contract law. And third, they must navigate the gauntlet of federal legislation that governs this area. Despite these hurdles, I conclude that companies should not have carte blanche to delete this cherished stick from the bundle of rights.

November 5, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 4, 2014

Casting a Ballot for Local Issues

November 4, 2014 | Permalink | Comments (0) | TrackBack (0)

Keiter & Ruple on the Transfer of Public Lands Movement

Robert Keiter (Utah) & John Ruple (Utah) have posted A Legal Analysis of the Transfer of Public Lands Movement on SSRN.  Here's the abstract:

Utah’s legal claims to federal land grow out of its statehood enabling act. Since similar statutory language is found throughout the Western states, a successful claim by Utah could fuel more claims and potentially end the public land system as we know it. Utah’s claims, like those of its neighbors, are doomed to failure, however. The federal government has absolute control over federal public lands, including the constitutional authority to retain lands in federal ownership. Statutes authorizing Western states to join the Union required those same states to disclaim the right to additional lands and that disclaimer cannot be spun into a federal duty to dispose. Statehood enabling acts’ guarantee of equal political rights also cannot be spun into a promise of equal land ownership. Furthermore, though statehood enabling acts guarantee states a share of the proceeds resulting from federal land sales, that guarantee is not an obligation to sell.

As a BLM spokeswoman recently said with respect to confrontations over public land management and Utah’s antagonistic tone towards the federal government: “It is frustrating as we work to identify the best possible path forward for everyone when some of the entities we are trying to work with consistently feel the need to poke us in the eye and then complain we are not working with them.”99 This may be the larger lesson — that the Transfer Movement does more harm than good to the federal-state relationship needed for effective public land management.

November 4, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, November 3, 2014

Top SSRN Downloads

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

1.  [298 downloads]  Trying Times: Important Lessons to Be Learned from Recent Federal Tax Cases
      Nancy A. McLaughlin (Utah) & Stephen J. Small (Independent)

2.  [216 downloads]  It's a 'Criming Shame': Moving from Land Use Ethics to Criminalization of Behavior Leading to Permits and Other Zoning Related Acts
      Patricia Salkin (Touro) & Bailey Ince (Touro)

3.  [131 downloads]  Self-Defense Against Robots
      A. Michael Froomkin (Miami) & Zak Colangelo (Miami)

4.  [90 downloads]  Federalism and Municipal Innovation: Lessons from the Fight Against Vacant Properties
      Benton C. Martin (Emory)

5.  [72 downloads]  Law and Artifice in Blackstone's Commentaries
      Jessie Allen (Pitt)

6.  [69 downloads]  BitProperty
      Joshua Fairfield (Washington & Lee)

7.  [59 downloads]  The Behavioral Law and Economics of Fixed-Rate Mortgages (and Other Just-So Stories)
      Todd J. Zywicki (George Mason)

8.  [57 downloads]  Abuse of Property Right Without Political Foundations: A Response to Katz
      Mitchell N. Berman (Penn)

9.  [52 downloads]  Title Registration and the Abolition of Notice in British Columbia
      Douglas C. Harris (UBC) & May Au (UBC)

10.  [44 downloads] The Titling Role of Possession
       Benito Arruñada (Pompeu Fabra)

November 3, 2014 | Permalink | Comments (0) | TrackBack (0)

Mitchell on the Uniform Partition of Heirs Property Act

MitchellThomas Mitchell (Wisconsin) has posted Reforming Property Law to Address Devastating Land Loss (Alabama Law Review) on SSRN.  Here's the abstract:

Tenancy-in-common ownership represents the most widespread form of common ownership of real property in the United States. Such ownership under the default rules also represents the most unstable ownership of real property in this country. Thousands of tenancy-in-common property owners, including members of many poor and minority families, have lost their commonly-owned property due to court-ordered, forced partition sales as well as much of their real estate wealth associated with such ownership as a result of such sales. Though some scholars and the media have highlighted how thousands of African-Americans have lost an untold amount of property and substantial real estate wealth as a result of partition sales, partition sales also have negatively impacted a wide range of other property owners. Some scholars have estimated that Hispanics in New Mexico lost nearly two millions acres of property in that state alone soon after the end of the Mexican-American War as a result of the manner in which land claims were settled pursuant to the Treaty of Guadalupe Hidalgo. Low- to moderate- income and poor white property owners in places like Appalachia have indicated to researchers that they feel at risk of losing their property as a result of partition sales. Though partition sales of tenancy-in-common property heretofore has been identified as a phenomenon impacting exclusively rural landowners, Hurricane Katrina revealed that there are a number of vulnerable tenancy-in-common property owners in urban cities and municipalities. There are even a surprising number of middle class, white property owners who own tenancy-in-common property under the default rules in some places in this country such as in Maine.

This Article, the lead article for this issue of the Alabama Law Review, reviews and analyzes the Uniform Partition of Heirs Property Act (UPHPA), a uniform act that represents the most significant reform to partition law in this country in modern times. I served as the Reporter, the person charged with principal responsibility for drafting a uniform act promulgated by the National Conference of Commissioners on Uniform State Laws, for the UPHPA. The Article summarizes those aspects of partition law that have resulted in thousands of property owners losing millions of acres of property and the real estate wealth associated with such property. The Article also provides an analysis of key sections of the UPHPA, and this analysis makes clear that the UPHPA represents a very comprehensive and innovative reform to what heretofore had long been perceived to be the intractable problem of tenancy-in-common land loss. For example, the drafters of the UPHPA drew in part on international comparative law in drafting certain sections of the UPHPA, including by drawing on the law governing exit of common ownership in countries such as Australia, Canada, England, and Scotland. Moreover, the Council of State Governments selected the UPHPA as one of thirty-five newly enacted statutes or uniform acts for inclusion in its 2013 Suggested State Legislation publication (from hundreds of submissions by state officials from across the country) to encourage states to consider it as a model. The UPHPA has been enacted into law in four states, it was introduced for consideration in four other jurisdictions in 2014, and a number of states are on the cusp of introducing it for consideration in 2015.

November 3, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, October 31, 2014

What is Urban Density? How Should We Measure It?

Salon writes about the various approaches to measuring denisty:

The hardest question, in calculating residential density, is the only question: How do you measure area? Because official urban boundaries fluctuate wildly between cities — some, like Toronto or Jacksonville, include vast tracts of suburban land, some, like Atlanta or Miami, are tiny fractions of their metropolitan areas — comparative rankings based on city size are useless. The Harvard economist Ed Glaeser, for example, has written that Shanghai and Beijing are less than half as dense as Los Angeles, which tells you everything you need to know about the utility of comparative urban density measurements.

But even if we restrict the measurement to one city or neighborhood, what ought to be included? The land occupied by residential buildings, certainly. What about roads? On the one hand, they are inflexible, generally unavailable for construction purposes; on the other, their size is a prime determinant of neighborhood character, commerce, and the potential for mass transit.

Should green space count against density? Including Central Park substantially lowers the density of Upper Manhattan, producing a metric at odds with the area’s settlement patterns, transportation uses, and the distribution of shops and restaurants. Yet naming the Upper West Side the densest neighborhood in Manhattan also seems misleading, since it’s sandwiched between the vast open spaces of Central Park and the Hudson River.

October 31, 2014 | Permalink | Comments (0) | TrackBack (0)

Reiss on Who Should Provide Mortgage Credit to American Households

Reiss_davidDavid Reiss (Brooklyn) has posted Who Should Be Providing Mortgage Credit to American Households? (Tulane Law Review) on SSRN.  Here's the abstract:

Who should be providing mortgage credit to American households? Given that the residential mortgage market is a ten-trillion-dollar one, the answer we come up with had better be right, or we may suffer another brutal financial crisis sooner than we would like. Indeed, the stakes are as high as they were in the Great Depression when the foundation of our current system was first laid down. Unfortunately, the housing finance experts of the 1930s seemed to have a greater clarity of purpose when designing their housing finance system. Part of the problem today is that debates over the housing finance system have been muddled by broader ideological battles and entrenched special interests, as well as by plain old inertia and the fear of change. It is worth taking a step back to evaluate the full range of options available to us, as the course we decide upon will shape the housing market for generations to come.

October 31, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, October 30, 2014

Counting Cornerstones

A quixotic quest worthy of a real-estate

For the past six years, William D. McCracken, [a] 39-year-old real-estate lawyer, has been combing both sides of every street in Manhattan in a quest to document the dated, inscribed rocks that serve as birth certificates for buildings. By foot and on bike, often accompanied by his Labradoodle named Martin, Mr. McCracken has amassed an online archive of the island’s 1,100-plus surviving cornerstones. (See some on an interactive map.)

Mr. McCracken’s search has gotten tougher as the venerable cornerstone is abandoned by developers. The load-bearing stones have largely gone the way of the flying buttress since the postwar advent of reinforced concrete and steel-frame construction. The walls of such buildings are often hung from above. [...]

Historically, a building in New York City rose in relation to its cornerstone, with facade walls aligned in reference to the rock. The block typically bore a date and often a message. “Jesus Christ Himself Being the Chief Cornerstone” was big in the 1880s and 1890s.

Ceremonies and parades accompanied cornerstone-layings, often led by Freemasons who sprinkled a rock with corn and anointed it with wine and oil to represent plenty, refreshment and joy. Dignitaries made speeches and wielded trowels.

“It’s a noble tradition that enriches the experience of city life, but it’s gotten almost completely forgotten,” says Robert A.M. Stern, dean of the Yale School of Architecture and lead designer of 15 Central Park West, a condominium building which has a cornerstone, and several other New York luxury condos which don’t.

October 30, 2014 | Permalink | Comments (0) | TrackBack (0)