Thursday, September 3, 2015
From Joe Singer's blog:
Pennsylvania statutes have language that might have been interpreted to require transfers of interests in land (through deeds or mortgages) to be recorded to be valid. If true, that would have undermined the MERS system of mortgage registration. But the Third Circuit gave MERS a win and interpreted Pennsylvania law to recognize mortgage transfers at the moment they are signed; recording is not required for the transfer of the property interest to be valid but is simply for the convenience of the parties and subsequent conveyees. The case, Montgomery Cty. v. MERSCORP, Inc, 2015 U.S. App. LEXIS 13482 (3d Cir. 2015), is another win for MERS among the federal Circuit Courts in a series of cases that challenged its business model.
The result of the case, as with other MERS-registered mortgages, is that there is no longer a public record of mortgage transfers since those records appear, if at all, on the computers at MERS and that information is not available to the public. Even if it were, it would be unrevealing because the banks adopted a policy of not recording mortgage transfers in any event.
Natalie Ram (Baltimore) has posted DNA by the Entirety (Columbia Law Review) on SSRN. Here's the abstract:
The law fails to accommodate the inconvenient fact that an individual’s identifiable genetic information is involuntarily and immutably shared with her close genetic relatives. Legal institutions have established that individuals have a cognizable interest in controlling genetic information that is identifying to them. The Supreme Court recognized in Maryland v. King that the Fourth Amendment is implicated when arrestees’ DNA is analyzed, and the Genetic Information Nondiscrimination Act protects individuals from genetic discrimination in the employment and health-insurance markets. But genetic information is not like other forms of private or personal information because it is shared — immutably and involuntarily — in ways that are identifying of both the source and that person’s close genetic relatives. Standard approaches to addressing interests in genetic information have largely failed to recognize this characteristic, treating such information as individualistic.
While many legal frames may be brought to bear on this problem, this Article focuses on the law of property. Specifically, looking to the law of tenancy by the entirety, this Article proposes one possible framework for grappling with the overlapping interests implicated in genetic identification and analysis. Tenancy by the entirety, like interests in shared identifiable genetic information, calls for the difficult task of conceptualizing two persons as one. The law of tenancy by the entirety thus provides a useful analytical framework for considering how legal institutions might take interests in shared identifiable genetic information into account. This Article examines how this framework may shape policy approaches in three domains: forensic identification, genetic research, and personal genetic testing. In some of these domains, experts are already advocating for policies consistent with this framework.
Rose Villazor (Davis) has posted Chae Chan Ping v. United States: Immigration as Property (Oklahoma City Law Review) on SSRN. Here's the abstract:
In this symposium Essay, I explore an overlooked aspect of Chae Chan Ping v. United States: Ping's argument that his exclusion from the United States under the Chinese Exclusion Act violated his property right to re-enter the United States. In particular, Ping contended that the government-issued certificate that he acquired prior to leaving the United States gave him the right to return to the United States. Such right was based on “title or right to be in [the United States] when the writ issued.” Importantly, Ping claimed that this right could not be “taken away by mere legislation” because it was “a valuable right like an estate in lands.” Similar to his other claims, the Supreme Court rejected this property argument. The Court’s treatment of his property claim is understandable because Ping’s contention may perhaps be described as “new property,” which did not become legible to courts until several decades later.
In reconsidering Ping’s property arguments, I aim to achieve two goals. First, as a thought piece, this Essay aims to show what the plenary power doctrine might have looked like had Ping succeeded in convincing the Court that his right to return constituted a property right. Second, this Essay highlights the intersections between property law and immigration law and the ways in which individual property rights might serve as limiting principles to the Supreme Court’s formulation of the nation’s absolute right to exclude non-citizens from the United States.
Tuesday, September 1, 2015
AMERICAN SOCIETY OF COMPARATIVE LAW
YOUNGER COMPARATIVISTS COMMITTEE
The Younger Comparativists Committee of the American Society of Comparative Law (“the Committee”) is pleased to invite submissions for the Fifth Annual YCC Global Conference, to be held on March 18-19, 2016, at Tulane University Law School in New Orleans, Louisiana. The purpose of the conference is to highlight, develop, and promote the scholarship of new and younger comparativists.
Conference Subject-Matter and Eligibility
Submissions on any subject in public or private comparative law are welcome. Eligible scholars may submit individual papers or propose fully formed panels. The Committee accepts individual paper submissions and proposals for panels (usually 3 to 4 presenters). The Committee encourages submissions and panel proposals in all areas of comparative law, and particularly in the areas of business law, insolvency, antitrust/competition law, intellectual property law, litigation, and arbitration.
Only individuals who have been engaged as law teachers, lecturers, fellows, or in another academic capacity for no more than ten years as of June 30, 2016, are eligible for individual submissions or as panel presenters. Graduate students enrolled in masters or doctoral programs are also eligible to submit proposals.
To submit an individual paper or propose a fully formed panel, scholars must email an attachment in Microsoft Word or PDF containing an abstract of no more than 750 words no later than October 30, 2015, to the following address: YCC2016AnnualConference@gmail.com.
Abstracts and panel proposals should reflect original research and thought. Submitted papers may not be published, but may have been accepted for publication at the time of the conference. Abstracts and panel proposals must include the author’s name, title of the paper, institutional affiliation, position at the institution, contact information, as well as the author’s certification that she/he qualifies as a younger scholar. Graduate students must identify themselves as such.
Each scholar may submit only one individual paper or panel proposal. Individual and co-authored papers may also be submitted. When submitting co-authored papers, both authors must qualify as eligible younger comparativists.
Proposals for fully formed panels must be organized around a common theme and include a confirmed list of the panel members and the required submission information. When submitting a panel proposal, the proposal must include the abstract of each participating presenter. For panel proposals, please also include the words “panel proposal” in the subject line of your submission email.
The Committee will group individual and co-authored papers by subject area and assign them to different panels by relevance. Concurrent panels will be held on two days, both March 18th and 19th.
Colin B. Picker Graduate Student Prize
The Third Annual Colin B. Picker Prize will be awarded for the best paper submitted by a graduate student. To be considered for the award, graduate students must first submit an abstract to the Committee by the above specified conference deadline of October 31, 2015, and have that abstract accepted for the main conference. Following acceptance of their abstract, graduate students may then submit their final papers by January 31, 2016, for consideration of the Colin B. Picker Prize. To do so the final papers must be submitted to the following email address: YCC2016AnnualConference@gmail.com and contain the subject line “Submission for Graduate Student Prize.” Papers submitted without the proper subject line and papers received after January 31, 2016, will not be considered for the award.
Authors and panel proposers will be notified of the acceptance of their submissions and proposals by no later than December 11, 2015.
Cost and Registration
There is no cost to register for the conference but participants are responsible for securing their own funding for travel, lodging, and other incidental expenses. A limited number of travel stipends may be awarded to those who demonstrate financial need. If you would like to be considered for a travel stipend, please make that request clearly in your submission. In your stipend request, please identify whether you are affiliated with an institution that is a member of the American Society of Comparative Law.
All scholars selected for the conference must submit final papers by email to YCC2016AnnualConference@gmail.com no later than February 19, 2016.
Please direct all inquiries to Professor Sally Brown Richardson, Chair of the Program Committee, by email at email@example.com or telephone at 504.865.5961.
Kenneth Reid (Edinburgh) has posted Body Parts and Property (Book Chapter) on SSRN. Here's the abstract:
The argument of this paper is that, in Scots law, separated body parts are (and ought to be) capable of private ownership, and that on severance from the body they become the property of the person from whose body they are taken. It is further argued that, where patients consent to a medical procedure, they will normally be taken to have donated to the hospital authority any tissue removed in the course of that procedure. Both doctrinal and policy considerations are examined, including (among the former) the division of things deriving from Roman law, the boundary between property rights and personality rights, the distinction between donation and abandonment, and the doctrines of occupatio and specificatio. The argument is also developed in the light of the decision of the Court of Session in Holdich v Lothian Health Board  CSOH 197, 2014 SLT 495 where, as in the English case of Yearworth v North Bristol NHS Trust  EWCA Civ 37,  QB 1, a claim was being made in respect of distress, depression, and loss of the chance of fatherhood following damage to sperm being stored by the defenders.
Monday, August 31, 2015
Fannie Mae is rolling out a new program designed to help poor and minority borrowers qualify for mortgages:
This week, the government-sponsored enterprise unveiled plans for a new loan product. HomeReady is specifically targeted toward low-income and minority households, and it allows prospective buyers to pay just a 3 percent down payment up front, provides a homeowner’s education course, and the biggest boon—the program will allow applicants to count income from those who won’t actually be borrowers, toward their gross income. That means in multi-generational households, the contributions of children or grandparents—and for younger borrowers, financial assistance from parents, or aunts and uncles—could be included. For current owners who rent a room or portion of their home for extra income, the money they receive from tenants would count as income if they decide to move.
James Ely (Vanderbilt) has posted ‘The Sacredness of Private Property:’ State Constitutional Law and the Protection of Economic Rights Before the Civil War (NYU Journal of Law & Liberty) on SSRN. Here's the abstract:
Friday, August 28, 2015
The New York Times looks at the growing number of abandoned homes in the Tokyo suburbs:
These ghost homes are the most visible sign of human retreat in a country where the population peaked a half-decade ago and is forecast to fall by a third over the next 50 years. The demographic pressure has weighed on the Japanese economy, as a smaller work force struggles to support a growing proportion of the old, and has prompted intense debate over long-term proposals to boost immigration or encourage women to have more children.
For now, though, after decades in which it struggled with overcrowding, Japan is confronting the opposite problem: When a society shrinks, what should be done with the buildings it no longer needs?
Many of Japan’s vacant houses have been inherited by people who have no use for them and yet are unable to sell, because of a shortage of interested buyers. But demolishing them involves tactful questions about property rights, and about who should pay the costs. The government passed a law this year to promote demolition of the most dilapidated homes, but experts say the tide of newly emptied ones will be hard to stop.
Nicholas Blomley (Simon Fraser) has posted The Territory of Property (Progress in Human Geography). Here's the abstract:
The pervasive and important territorial dimensions of property are understudied, given the tendency to view territory through the lens of the state. Viewing both property and territory as relational and mutually recursive, I introduce the practical work of property’s territory, the historical moment in which it was produced, the powerful metaphors that work through it, and the habits and everyday practices it induces. The territory of property, I suggest, has a specificity, a presence, and a consequentiality, all of which demand our attention.
Andrea McArdle (CUNY) has posted [Re]Integrating Community Space: The Legal and Social Meanings of Reclaiming Abandoned Space in New York's Lower East Side (Savannah Law Review) on SSRN. Here's the abstract:
The Article begins with a brief account of conditions in the late 1960s and early 1970s that contributed to public and private disinvestment in the storied Lower East Side, a site of intense immigrant settlement at the turn of the twentieth century, and, in the 1950s and 1960s, a space that attracted writers, artists, and political activists. The Article then addresses how these conditions also afforded an opportunity for reclaiming devalued land and distressed neighborhoods. Beginning in the mid-1970s, neighborhood-initiated cultivation of gardens in vacant, burnt- out lots and homesteading occupants’ refurbishing of buildings that had fallen into disrepair created a new source of investment in city-owned property, holding out the promise of community stabilization.
This Article examines the legal implications of these autonomous, self-help responses to disinvestment. Initially, the City supported and legitimized community gardeners’ and homesteaders’ efforts at reclamation. However, when land values rose in the 1980s and 1990s, the City reversed course and invoked laws limiting access to property as it sought to auction off community gardens and to evict homesteaders as trespassers. In response, local gardeners sought redress under legal theories alleging violations of environmental law and civil rights. Squatters and homesteaders asserted rights as adverse possessors. Although these legal claims proved unavailing, by 2002, agreements negotiated on behalf of these claimants permanently protected some community gardens from development and afforded occupants of eleven squatted buildings a new legal status as shareholders of limited-equity cooperative housing.
Drawing on these developments, this Article addresses how such community efforts to reengage with threatened urban landscapes generate legal meaning. It discusses how the recently opened Museum of Reclaimed Urban Space (MORUS), which is literally built into a formerly squatted building in New York’s Lower East Side, both portrays and adds to that meaning-making. By illuminating the particular ways in which the owners and users of these contested spaces invoked both property law and community norms, MORUS documents how the squatter and community garden movements helped reintegrate distressed city buildings and lots as community spaces. The Article concludes with reflection on how the impulse to reclaim space also inevitably transforms it.
Samuel Bagenstos (Michigan) has posted Disparate Impact and the Role of Classification and Motivation in Equal Protection Law after Inclusive Communities (Cornell Law Review) on SSRN. Here's the abstract:
At least since the Supreme Court’s 2009 decision in Ricci v. DeStefano, disparate impact liability has faced a direct constitutional threat. This paper argues that the Court’s decision this past Term in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., which held that disparate impact liability is available under the Fair Housing Act, has resolved that threat, at least for the time being.
In particular, this paper argues, Inclusive Communities is best read to adopt the understanding of equal protection that Justice Kennedy previously articulated in his pivotal concurrence in the 2007 Parents Involved case — which argued that state actions that do not classify individuals based on their race are not constitutionally suspect simply because they are motivated by the purpose of integrating the races. Applying that understanding, Inclusive Communities makes clear that disparate impact need not surrender to equal protection, but that the Constitution demands some limitations on disparate impact liability. Although the limitations should make a difference at the margins, they are not nearly as severe as some may have feared.
The broader goal of this piece is to offer an account of how the principle that Justice Kennedy articulated in Parents Involved, and that the Court seems to have adopted in Inclusive Communities, fits into prior equal protection doctrine. The piece argues that this interpretation of equal protection represents the most attractive approach consistent with the decided cases. But although the Inclusive Communities approach to equal protection represented the best path available to the Court in light of prior cases, it has substantial drawbacks. In addition to ignoring key normative considerations, the Court’s formalistic focus on the existence or nonexistence of a classification as a trigger for strict scrutiny is likely to prove unstable.
Thursday, August 27, 2015
Because China owns all of the world's pandas and rigidly enforces the loan agreements it makes with zoos around the world. The Vox explains:
On Saturday, a pair of tiny baby panda twins were born at the National Zoo. The cubs' mother, Mei Xiang, has lived in the United States since 2000. The newborns could be the offspring (via artificial insemination) of another, Tian Tian, who also lives at the National Zoo . . . .
Yet despite their American credentials, the cubs are the property of the Chinese government — as are their parents and all other giant pandas in zoos around the world. And if, a few years from now, the US does something that displeases the Chinese government, one or both cubs could be taken away.
It's happened before. In 2010, China took 4-year-old US-born cub Tai Shan (née Butterstick) from the National Zoo— the only time China has ever permanently repatriated a panda in the modern era. Only a few days before Tai Shan was taken to China, the Chinese government had warned President Obama not to meet with the Dalai Lama on a diplomatic visit — and threatened that it would strain US-China relations if he did. The meeting happened anyway.
[...] Unlike other "charismatic megafauna," pandas are only native to a single country. That gives China much more control over the treatment of pandas than, say, sub-Saharan African countries have over elephants. And it's used that control to its advantage . . . .
Stephen Clowney (That's Me!) has posted Boundary Work in Black Middle-Class Communities (Savannah Law Review) on SSRN. Here's the abstract:
This piece, written for the "Re-Integrating Spaces" symposium at Savannah Law School, explores the spatial reality of black middle-class communities.
Most African-Americans are not poor. In fact, an overwhelming majority of black Americans are squarely entrenched in the rungs of the (lower) middle class. Despite this statistical reality, almost all of the legal scholarship on African-Americans focuses on the struggles of the very poorest black citizens. This brief Article hopes to reverse the trend. Building on insights from sociology and economics, the following pages explore the housing situation of middle-class African-Americans and the resulting geographic setting of non-poor black neighborhoods. In short, this Article asks three questions: (1) Where do black strivers live? (2) Why does it matter? and (3) Can the law mitigate the spatial phenomena that restrict black achievement?
Section I recaps an emerging body of empirical research showing that middle-class black workers reside in communities that are qualitatively worse than their white counterparts. Section II explains how the unique geography of middle-class black life erodes the physical health of African American strivers, threatens the transmission of middle-class values from one generation to the next, and makes it difficult for families to pass on hard-won economic gains to their children. Finally, Section III presents five brief policy proposals that could help reinvigorate middle-class black neighborhoods and spark a sustainable revival of urban environments. Instead of focusing on grandiose but unachievable plans to reformulate the American economy or reanimate public-sector unions, decision-makers should put increased emphasis on: creating new historic preservation districts in black neighborhoods; granting middle-class African Americans greater autonomy from their less well-off black peers; improving public transportation; strengthening school choice programs; and reformulating inheritance rules to prevent irresponsible children from taking over the property of their parents.
Tuesday, August 25, 2015
Rob Anderson (Pepperdine) makes an argument that seems especially relevant for Property professors. Is there any good reason to assign the newest edition of a property textbook?:
The price of law school casebooks (as well as college textbooks generally) seems to grow every year. At the present time, many casebooks cost over $200 when purchased new. The high cost is made worse by the appearance of a new edition every few years, which makes the cheaper used books in short supply (or completely unavailable). New editions seem to appear every five years or so for many casebooks, and this is true not only in fast-moving areas of law, but even in subjects where most of the cases are decades (or centuries) old.
We as faculty can greatly reduce the cost of casebooks to students by simply opting out of new editions and staying with the older edition. This makes more used copies available, lowering the cost for students, and reduces the burden on us of updating reading assignment page references to substantially the same material. Although the publisher may not directly sell new copies of the older edition, there are ample sources available from third parties, both new and used. Indeed, upon the appearance of a new edition, there is often a glut of new and used books that hits the market for low prices as the old edition becomes obsolete. These can be acquired for pennies on the dollar, saving students significant amounts of money.
I adopted this strategy for the first time this year, buying up used casebooks for my Pepperdine 1L students from Amazon and other websites (see below). These used books were available at approximately a 97% discount to the price of a new copy of the new edition. This saved my students over $11,000 and probably saved some trees as well. I doubt that the students will miss out on any great new cases by using the earlier edition, and to the extent there are new developments I can supplement the readings myself.
Donald Kochan (Chapman) has posted Dealing with Dirty Deeds: Matching Nemo Dat Preferences with Property Law Pragmatism (Kansas Law Review) on SSRN. Here's the abstract:
When title disputes arise between two or more purchasers, we have accepted pragmatically that exceptions must be made to applying the Latin maxim nemo dat quod non habet – roughly translated to mean that one can only transfer what they own – even though using such exceptions means that we will, in essence, at times validate fraud and other dirty deeds. This Article outlines the basic place of the nemo dat principle in our system of law, introduces the tensions between the ideal adherence to the maxim and the realities in the world that necessitate exceptions to (or a sometimes less-than-ideal achievement of) the maxim, summarizes the recording acts and their purposes (along with the types of notice and their uses), and exposes the tensions these recording systems each have with a strict notion of nemo dat. It explains why the protections for bona fide purchasers are necessary to facilitate markets in property and serve other goals, while examining the role of individual responsibility – particularly as it relates to purchaser obligations to record and examine records – as the core justification for setting the rules in a manner that first-in-time title holders sometimes lose out to subsequent purchasers.
Pragmatism concerns make some nemo dat exceptions necessary, but we should find ways to minimize the need for invoking such exceptions principally by shrinking the pool of those who fit the criteria for the bona fide purchaser exception. This Article proposes that we should search for ways to so shrink that pool not by changing the nature of the protections available to innocent bona fide purchasers but instead by finding new ways to inject more information about land conveyances into the public view – beyond traditional recording mechanisms – so that more and earlier notice of possible competing property claims is available to responsible purchasers exercising due diligence.
To accomplish that goal, this Article presents a proposal to take advantage of what can be characterized as “the underexploited utility of inquiry notice.” The idea is to create better conditions to give first-in-time purchasers additional opportunities to protect their title interests by more easily triggering the inquiry obligations of second-in-time and other subsequent purchasers. The Article outlines the components of a proposed new and innovative service called the “Title-Related Inquiry Notice Triggering System” (TINTS). As outlined, TINTS would operate in a manner that would provide a means for purchasers of property to protect their claim to title even earlier than official recording might accommodate. TINTS, or other innovations like it, can assist us in matching nemo dat preferences with property law pragmatism.
Monday, August 24, 2015
Vox puts together a cool chart:
If you take out a mortgage to buy a house, the federal tax code lets you deduct your interest payments from your taxable income. People can also deduct state and local property taxes from their federal income taxes.
The blue bars show the value of these tax breaks for different income brackets. They can be compared with subsidies the federal government provides to low-income people to help them afford housing — represented by the yellow bar. As you can see, the tax breaks provided to the richest Americans, on a per-person basis, dwarf the value of housing subsidies provided to those with low incomes.
But the combined effect of these policies is to hurt the middle class the most. Most households in the middle of the income distribution are too wealthy to qualify for federal housing subsidies. At the same time, they tend to have relatively small houses and be in low tax brackets, so they don't get much benefit from housing-related tax breaks.
The Rutgers Law School Center on Law in Metropolitan Equity (CLiME) is proud to host the Third Annual Local Government Law Works-in-Progress Conference.
This scholarship conference will take place November 6-7, 2015 at the S.I. Newhouse Center on Law and Justice at the Rutgers School of Law in downtown Newark, NJ. Although all topics are welcome, we are particularly interested in showcasing papers that interrogate the meaning and utility of an equity principle in local governance.
This year we hope to attract a few local government-oriented scholars from outside law to attend and comment.
Please register for the conference by October 2, 2015 here.
Participants will have the option of either presenting a full draft or an early work in progress/abstract. Draft papers will be due October 16, 2015.
Questions and submissions should be directed to firstname.lastname@example.org.
Difan Qu (Hong Kong) has posted The Owners’ Committee in China: Another Non-Owner Owned Puppet? (Tsinghua China Law Review) on SSRN. Here's the abstract:
The Owners’ Committee in China, ever since its creation it the 90’s of the 20th century, has been unpopular and even strange to most private property owners in China. Although ideally, a well-functioning Owners’ Committee should benefit the property owners and serve to be the entity acting in the best interests of the owners. However, due to political, cultural as well as legal factors, the establishment of Owners’ Committee in China has yet to become a typical practice, much less of becoming a functioning entity seeking to safeguard owners’ interest. There is very little study in both Chinese and English literatures of the Chinese Owners’ Committee on how law can facilitate its formation and operation. This article utilizes the findings of the social science researches conducted on this topic and addresses various problems of the Owners’ Committee, and proposes several solutions on how the reconstruction of our current legal mechanism can facilitate a well-functioning Owner’s Committee.
Friday, August 21, 2015
Al Brophy (UNC) has posted Re-Integrating Spaces: The Possibilities of Common Law Property (Savannah Law Review) on SSRN. Here's the abstract:
"Re-Integrating Spaces" is part of a symposium on progressive property held at Savannah Law School as part of the re-dedication of their building, which was constructed in the early nineteenth century and used as a hospital for much of its existence.
The essay uses the building's long history as a guide for exploring the history of property rights and race in Georgia and the United States. It emphasizes that while the central tendency of property is about exclusion and control -- as Georgia's history with slavery, Native American removal, and Jim Crow demonstrate. Yet, it points out that sometimes the protection of property rights benefits racial minorities. And it also discusses the long history of the critique of such robust property rights. This lead to discussion of some of the instances where other elements of common law property (and statutory rights) help to shift away from the right of exclusion and control.