Wednesday, November 30, 2016
Bill 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.
Thursday, November 24, 2016
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!
Sunday, November 20, 2016
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.
The book is written by three transactional lawyers/law professors who believe that the backwards-looking approach of studying property law through reported appellate cases is incomplete. Using the case studies in the book, students are challenged to apply property doctrines prospectively and to think about identifying and addressing client problems in a way that they are not typically challenged to do so during the first year of law school.
The book contains eight case studies that are drawn from our practice, so they are more textured and realistic than artificial hypos. Each case study highlights the legal doctrines that students will use and clearly sets forth the learning objectives of the chapter. For example, Chapter 4: The Case of the Heir's Property includes a case that Heather and Lucy handled in Texas - their client lived in a house that he owned as a tenant in common with other members of his family following several generations of title passing through intestacy. The problem asks students to draw from what they have learned about adverse possession, tenancy in common, and intestate succession. The case study is divided into multiple parts that each focus on discrete tasks or skills (i.e. determining present ownership of the house, adverse possession analysis, etc.) allowing professors to customize the problem.
A comprehensive teacher's manual is being completed and will be available before the end of the year. Interested professors can request a comp copy by clicking here. The book will cost $30.
Monday, November 14, 2016
This just in from our friends at the University of Arkansas at Little Rock William H. Bowen School of Law. Below is a Call for Proposals for the Institute for Law Teaching and Learning’s Summer 2017 Conference, “Teaching Cultural Competency and Other Professional Skills Suggested by ABA Standard 302.” The conference will take place July 7-8, 2017 at the University of Arkansas at Little Rock William H. Bowen School of Law.
The Institute invites proposals for workshop sessions addressing how law schools are responding to ABA Standard 302’s call to establish learning outcomes related to “other professional skills needed for competent and ethical participation as a member of the legal profession,” such as “interviewing, counseling, negotiation, fact development and analysis, trial practice, document drafting, conflict resolution, organization and management of legal work, collaboration, cultural competency and self-evaluation.” The conference will focus on how law schools are incorporating these skills, particularly the skills of cultural competency, conflict resolution, collaboration, self-evaluation, and other relational skills, into their institutional outcomes, designing courses to encompass these skills, and teaching and assessing these skills. The deadline to submit a proposal is February 1, 2017.
For more information, click the following: Download CFP Summer 2017 Bowen Conference_PDF
Friday, November 11, 2016
Kellen Zale (Houston) has posted When Everything is Small: The regulatory Challenge of Scale in the Sharing Economy (San Diego Law Review) on SSRN. Here's the abstract:
The sharing economy — the rapidly evolving sector of peer-to-peer home-sharing and ride-hailing transactions facilitated by platforms like Airbnb and Uber — offers the potential for economic growth, greater sustainability, and expanded access for underserved groups. But the massive number of small-scale activities facilitated by these platforms is also resulting in negative cumulative impacts and exposing regulatory fractures, from the loss of long-term rental housing to discrimination against protected classes to increased burdens on public infrastructure.
This Article contends that scale is a defining feature and fundamental challenge of the sharing economy. Small may be beautiful, but when everything is small, the regulatory challenge is immense. Small-scale activities that once fit the criteria for light or no regulation are occurring at scales at which non-regulation makes little sense. As the sharing economy becomes an increasingly large segment of the public accommodations and transportation markets, the traditional ways we distinguish between activities that we should regulate and those we treat with regulatory leniency no longer fit. Existing regulatory systems, from civil rights and environmental law to consumer protection and tax law, do not map neatly onto the configuration of scale in the sharing economy. This regulatory misfit threatens to result in inequitable and discriminatory outcomes across the sharing economy.
Effective governance of the sharing economy requires a more complete understanding of the role of scale. This Article investigates the implications of scale in the sharing economy, focusing on the prominent sectors of home-sharing and ride-hailing. The Article unpacks how massive numbers of home-sharing and ride-hailing activities are producing negative cumulative impacts and exposing regulatory fractures, which threaten to undermine a range of important public policies — including affordable housing, civil rights, and consumer protection — and considers possible legal regimes for responding to scale.
For all you fellow mortgage finance lovers out there, Dale A Whitman (Missouri-Emeritus) has posted Transferring Nonnegotiable Mortgage Notes (Florida A&M Law Review) to SSRN. Per Dale, the article discusses not only what is known about the legal requirements for transferring nonnegotiable notes, it also discusses at length the following additional topics:
- The history and background of the Holder in Due Course doctrine.
- How to identify whether a note is negotiable (including notes secured by FHA and VA mortgages)
- How negotiable notes (and the mortgages securing them) must be transferred
- The impact of UCC Article 9 on transfers of both negotiable and nonnegotiable notes.
These topics were (and remain) super important as we continue to study the aftermath of the housing crisis and the ways in which financial institutions used the foreclosure system. The linkage between commercial law and property law is not often well-understood, but Dale does a great job showing the connection. Great work, Dale!
Wednesday, November 9, 2016
I know everyone has been paying close attention to the presidential race, but there was something else important happening yesterday: SCOTUS heard oral arguments on whether municipalities can bring claims under the Fair Housing Act (Title VIII of the Civil Rights Act of 1968).
The question originates from a lawsuit filed by the City of Miami against Bank of America that was consolidated with another case where the city sued Wells Fargo. In both cases the city argued that these financial institutions had engaged in a long and targeted practice of making risky loans to minority borrowers (loans that were 5x more likely to result in a default than loans made to white borrowers). Further, the city alleged that in the wake of the 2008 crisis the banks refused to allow these distressed homeowners to refinance or engage in a loan modification, even through they routinely offered such deals to similarly situated white borrowers.
The scope of who can serve as a party under a Fair Housing Act claim raises interesting policy issues. The city argues that it is within the "zone of interest" for standing purposes because the discriminatory loan practices created large numbers of defaults and foreclosures, which in turn resulted in the proliferation of abandoned and blighted properties that hit hard the bottom line of cities when they needed resources the most.
The suit was initially filed against BoA in July 2013 and against Wells Fargo in July 2014, but both were dismissed by the district court for lack of standing and on the basis that the city had failed to prove that the bank's behavior was the proximate cause of the harm alleged. In September 2015, the 11th circuit remanded both of these cases for further proceedings on the proximate cause determination and held that the city did indeed have standing under the Fair Housing Act.
Now it's up to the eight justices to decide. There are interesting arguments on both sides. The city asserts that local governments are in a unique position to guard against housing discrimination and that because of the collective interest that they represent cities should be allowed to use tools like the Fair Housing Act to police bad behavior. Incidentally, this is in line with a recent article by Kathleen Engel at Suffolk University regarding local government responses to the housing crisis. The financial institutions, on the other hand, argue that the city's position would take the scope of the Fair Housing Act too far and that the connection between the loss of property tax revenues and discriminatory lending practices is too attenuated and specultaitve in this case to provide relief to the city.
Stay to tuned to see what happens!
Monday, November 7, 2016
As Kate McKinnon (playing Hillary Clinton) said on Saturday Night Live last week, “We can’t tell you who to vote for, but on Tuesday, we all get a chance to choose what kind of country we want to live in.”
I, too, reflect what McKinnon said—vote for whomever you want, but by all means, go out and vote. And while you are voting, remember the history of voting rights and how voting rights historically have been tied to property ownership. Voting rights in the colonies before the American Revolution were extended only to “freeholders,” freeholders being white men who owned land worth a certain amount of money. After the American Revolution, most states continued to include a requirement that voters owned property, believing that a voter should have an “economic stake” in society before he could be trusted to vote. (Shout out to Vermont for being in 1791 the first state to eliminate all property ownership requirements for voting.) For an interesting history on how property ownership impacted voting rights, read now-Professor Jacob Katz Cogan’s (Cincinnati) student note, The Look Within: Property, Capacity, and Suffrage in Nineteenth-Century America, 107 Yale L.J. 473 (1997).
Today, whether you own property does not impact whether you can vote for Clinton or Trump, and that is a positive change for the country. So if you haven’t already, go exercise your right to vote today and be happy you don’t have to prove how much land you own in order to cast your ballot.
Happy Election Day! Go vote!
Saturday, November 5, 2016
I just received the sad news of the passing of Andre van der Walt. Andre was the South African Research Chair in Property Law and a Distinguished Professor of Law at Stellenbosch University in South Africa. A champion of progressive theories of property, Andre made major contributions to South African constitutional property rights law and educated many generations of lawyers and property scholars. His many excellent books, articles, chapters, and other contributions can be found here.
He will be deeply missed.
Friday, November 4, 2016
- Kathryn (“Kappy”) Allen, Graves Dougherty Hearon and Moody, Austin, TX
- Carl Circo, Ben J. Altheimer Professor of Legal Advocacy, University of Arkansas School of Law
- Beat Steiner, Holland & Hart LLP, Boulder, CO
- Wilson Freyermuth, John D. Lawson Professor of Law and Curators’ Distinguished Teaching Professor, University of Missouri School of Law
Sunday, October 30, 2016
Halloween is a big deal in New Orleans. Everyone dresses up, regardless of whether they are trick-or-treating with children. People deck out their yards with awesome decorations. Law firms shut down early so folks can get to parties. Like everything else in New Orleans, we treat Halloween as one massive party.
This year, I am dressing up as the most property-related item I could think of: a house. And not just any house. I will be going as a house from the board game Monopoly. This goes along with our amazing Monopoly-themed family costume: our eight-year-old is the “In Jail / Just Visiting” space; my best friend is the race car; and my husband is Rich Uncle Moneybags (aka the Monopoly Man). Our costumes are complete with specialized trick-or-treat bags, too: a “get out of jail free card” bag for the munchkin, a series of property deeds for me, Monopoly money for my husband, and dice for the race car game piece. We are all in for a rockin’ and (dice) rollin’ good time this Halloween.
The theme for our family costume was inspired by the absurd amount my family plays Monopoly. In September, we had a month-long game going in which we played for 45 minutes before bed time e-v-e-r-y n-i-g-h-t. I had to make more money because the bank ran out. It was nuts.
Monopoly is a game filled with lessons about property and property law. (Obviously there are lessons about why we need antitrust law, too, but those are pretty apparent given that the name of the game is monopoly.) Some properties are more profitable to own than others, and the most profitable are not always the most expensive. Take Mediterranean and Baltic. Cheapest board spots to buy, but even if you get a hotel built on them, it will only cost $450. Or take Boardwalk or Park Place. Sure, they are the most expensive and it will cost $2,000 in rent once there’s a hotel on Boardwalk, which is almost always enough to knock someone out of the game. But it also costs $200 per house, which means you have to fork out $1,000 before you get a hotel and most people don’t have that type of dough laying around in the game.
No, the best properties to get are the pink (St. Charles, States, Virginia), orange (St. James, Tennessee, New York), red (Kentucky, Indiana, Illinois), and yellow (Atlantic, Ventnor, Marvin Gardens) properties. These are all affordable themselves, and putting houses on them won’t break the bank. But if someone lands on them once they are developed, it starts to seriously deplete your opponent’s cash supply. Hit them more than once and you are staring defeat in the eyes.
The same is true for real property (“real” as in actual property, not imaginary property). Buy the most expensive house on the block in the most expensive neighborhood and you may not see the return you want. Buy the cheapest house in the least expensive neighborhood and the same result may occur. Everyone wants to hit the sweet spot—the house that costs the least but had the most value to give back.
Monopoly also teaches about the value of developing property. Sure, it’s nice to own a bunch of random pieces of property around the board, but you don’t see serious cash flow until you start developing your properties with houses and hotels.
Remember the Community Chest and Chance cards? Those are filled with property lessons. We have explained the concept of taxes to our eight-year-old more times than I’m guessing most parents have, simply because she wants to know why she is being assessed $115 per hotel for street repairs. In a city like New Orleans where pot holes can swallow your car, it’s not that hard to convince the little one that street repairs are important, but how street repairs get funded was a dinner time conversation all because of Monopoly.
Sure, Monopoly pushes the capitalist ideology hard (and then pushes it a little more), so the Bernie Sanders’ followers may not enjoy the game quite as much. And, yes, Monopoly doesn’t exactly highlight the nuance of bankruptcy law. You either have money and win or you are bankrupt and lose; there’s no second chance or bankruptcy laws to take advantage of, so maybe it’s not played in Donald Trump’s house either. But it has helped our daughter understand some basic principles of buying and selling property, investing in property, developing property, etc. And it’s provided us with hours of family game time entertainment, not to mention, some pretty stellar, homemade Halloween costumes.
Alan C. Weinstein (Cleveland-Marshall) has posted Regulation of Religious Uses Under the Religious Land Use and Institutionalized Persons Act on SSRN. Here's the abstract:
This article examines how the courts have applied the Religious Land Use & Institutionalized Persons Act (RLUIPA) in the context of conflicts between religious "uses," such as churches, and local land use regulation. In RLUIPA, Congress has attempted to empower churches when they choose where and how they build a sanctuary or assemble for worship and to restrain local governments when they seek to apply zoning or landmark regulations to those churches. In this environment, local governments face a difficult task in seeking to avoid RLUIPA claims and in evaluating their likelihood of prevailing if challenged. After discussing how the courts have ruled on these conflicts, the article notes how local officials can take steps to lessen the likelihood of a potential claim, including: a comprehensive review of the treatment of religious institutions in its land use codes, both substantively and procedurally; training officials and employees to be sensitive to religious differences; and recognizing that land use applications from, and enforcement of regulations against, religious institutions must be handled with special care.
Jennifer Anglim Kreder (Northern Kentucky) has posted Analysis of the Holocaust Expropriated Art Recovery Act of 2016 (Chapman Law Review) on SSRN. Here's the abstract:
This article introduces readers to the problems facing Holocaust victims and their heirs today as they seek to recover art stolen during the Nazi era. It provides essential history beginning with Hitler’s rise to power so that readers can understand the Holocaust Expropriated Art Recovery Act (hereinafter the “HEAR Act”), a bipartisan piece of legislation currently under consideration by a Senate subcommittee. Part I provides the essential pre-war and WWII-era history. Part II informs readers about the essential decisions a plaintiff must make before filing suit. Part III analyzes the key cases and legal developments concerning Nazi-looted art recovery since 1998. Part IV analyzes the HEAR Act. Part V concludes that the HEAR Act is a positive development that would allow survivors and their heirs a fair chance at recovering their stolen art.
Wednesday, October 26, 2016
For me, being a spectator as the race for the White House comes to an end is akin to trying to find the exit of a casino. Even if you want to get out, there are distractions that keep you pulled in at every turn. If you can get past the distractions, the exit signs are never clearly marked. Once you actually find an exit, it’s never as simple as just walking out the door; there’s always another hallway or stairwell or lobby you have to get past before you can truly be finished with the casino.
I feel the same way about the presidential election. Based on my anecdotal evidence, I don’t think I’m alone.
While drowning myself in news articles about the election but trying to think about something, anything, else, I wondered, what property does the President get to take when he (or, perhaps very soon, she) leave office? Obama has received tons of gifts since he was elected in 2008—a parking pass for all future Chicago Blackhawk games, a ping pong table, Mexican tequila, a lot of clothes, rugs, paintings, etc. He’s gotten some good loot. But query, does he get to keep all of it?
Gifts to politicians are something I have dealt with in a previous life. Before going to law school, I worked for then-U.S. Senator Mary L. Landrieu, and at one point in my Senate staffer career, helped the Senator with the Labor, HHS, Education Appropriations bill. This was in the days before earmark reform, so each member had a pot of money to use for projects in his own state or district. Despite some very public reports about the abuse of such earmarks—remember the bridge to nowhere?—earmarks were pretty small potatoes. In 2006, which happens to be the last year I worked in the Senate, earmarks cost $29 billion. The 2006 federal budget was $2.82 trillion. The costs of earmarks was not even a full drop in the bucket. Regardless, earmarks were seen as pork and pork was seen as bad. The House banned earmarks and now all project funding has to run through the executive branch instead of the legislative branch.
Back before the ban, constituents would come to Washington with write ups on the project(s) they wanted funded and, if they were from Louisiana and had a project related to health care or education, they got to meet with me. What lucky ducks they were to meet with a then 22-year old recent college graduate who had studied a lot about political theory but who knew very little about politics in practice.
The one thing I and my colleagues did know, however, were the gift rules. Because we were meeting with people who wanted the Senator to appropriate to their project $100,000, or $250,000, or $500,000, it was not unusual for the constituents to bring in a gift or want to take us out for a fancy dinner. Giving a member of the Senate or her staffer something while asking for money in return raises at least the appearance of impropriety, so the Senate has strict gift rules. Under Senate rule 35.1(a)(2)(A), you cannot accept an individual gift of more than $50, and you cannot accept gifts from one person that add up to more than $100 in a year. If someone tried to give you something worth more, rule 35.1(c)(1)(A) requires you to promptly return the gift. The Senate gift rule has a lot of other nuances to it, but the bottom line was always never take anything that costs more than $50 and if you weren’t sure, it’s better to be safe than sorry.
Now I am not a hockey aficionado—remember, I live in Louisiana . . . we don’t do hockey—but I am a football fan and, as a regular attendee of college and professional football games, I know that parking spots to sporting events are outrageously expensive! Heck, a parking pass at Tulane is outrageously expensive! So, does Obama get to keep all the gifts, including the lifetime parking pass to the Blackhawk games, he has received or is there an Executive Branch rule 35?
Turns out there is a lot more than an Executive Branch rule 35. Under Article I, Section 9, clause 8 of the Constitution, the President is not allowed to accept any present from any “King, Prince, or foreign State” without Congressional approval. Given the gridlock in Congress today, it seems hard to imagine Congress approving any gift given to Obama, but fortunately in 1966 the Foreign Gifts and Declarations Act was passed which provided, among other things, that Congress consented to the President receiving “a gift of minimal value tendered and received as a souvenir or mark of courtesy.” 5 U.S. Code § 7342(c)(1)(A). Currently “minimal value” is defined as $375, but that figure is re-evaluated every three years and will be up for re-evaluation in 2017. Anything given to the President by a foreign state that costs more than $375 is immediately turned over to the National Archives, a practice that can produce interesting results. When George W. Bush was in the White House, for instance, he received a Bulgarian sheepdog, Balkan, from the President of Bulgaria. Pure bred dogs ain’t cheap; a Bulgarian sheepdog costs between $1,000 and $1,500. So President Bush couldn’t keep the dog, but the National Archives didn’t exactly want a puppy running around either. Solution: President Bush bought the dog (he couldn’t keep the dog as a gift, but he could pay face value for the dog, i.e. removing the dog from the “gift” category and into the “things bought by POTUS” category) and gave Balkan to a friend in Maryland. Executive re-gifting at its finest.
That covers gifts from foreign dignitaries, but what about gifts from U.S. citizens? Under the Ethics Reform Act of 1989, no federal officer, including the President, can accept any gift from someone who is seeking action from, doing business with, or is regulated by one’s agency, or whose interests may be substantially affected by the performance or nonperformance of one’s official duties. 5 U.S.C. § 7353(a). There are some caveats to that broad rule for federal officers other than the President. For example, other federal officers can accept gifts of less than $20 in value, assuming the gift is not being given as a quid pro quo. 5 C.F.R. § 2635.204(a). And the other federal officers can accept gifts based on family relations or friendship. 5 C.F.R. § 2635.2014(b).
Because of his position and the number of gifts given to the President on a daily basis, the Office of Government Ethics has found that it would be impractical, if not impossible, to make a value analysis on every gift given to the President. 5 C.F.R. § 2635.204(j). Thus, the President can keep gifts from U.S. citizens intended to be given to the President personally. If a gift was intended for the White House (think an antique furnishing), then the gift stays with the White House. But gifts intended for President Obama can, if he chooses, travel with him to his new residence. The only restriction is that the President cannot accept anything of value “in return for being influenced” in the performance of his official duties. 18 U.S.C. § 201(b)(2). To maintain a level of transparency, any gift received by the President that is valued over $350 must be reported.
What does all this mean? Obama now has free parking at the Blackhawk games which makes him actually a lucky guy.
Monday, October 24, 2016
Nancy Leong (Denver) has posted The First Amendment and Fair Housing in the Sharing Economy (Ohio State Law Journal) on SSRN. Here's the abstract:
The sharing economy — a marketplace made up of businesses that profit by connecting providers of goods and services with users of those goods and services — challenges us to reevaluate our anti-discrimination laws. This Essay considers one such challenge: how should public accommodation laws such as Title II of the Civil Rights Act of 1964 and the Fair Housing Act apply to the housing sector of the sharing economy? Such laws, the Essay explains, should apply in full to the housing sector. Moreover, legislators should act to remove the current statutory exemption for landlords who rent a small number of housing units and live on the premises from which they rent. While some might raise concerns that closing the exception will infringe upon small-scale landlords’ First Amendment right to free association, such concerns have no doctrinal basis. Moreover, closing the exception will in fact have the effect of advancing interests related to both freedom of speech and of association, particularly with respect to the people of color whom public accommodation laws were originally designed to protect.
Tuesday, October 18, 2016
Debt is property, and, because of this, property law has a lot to say about how debts are resolved. Indeed, property law is deeply woven into the fabric of the bankruptcy process — a fact that has been woefully neglected by many scholars. The ability to provide debtors with relief and the ability of creditors to demand protections from discharge or diminished payments are both concepts that are intimately tied to property law. However, despite the doctrinal workings of property law in this context, from a theoretical standpoint property law has been underutilized. This is particularly true, as this Article asserts, in the public insolvency context — when governments go broke. Instead of being relegated to a mere mechanical (and normatively side-lined) status, I argue that property theory, particularly that arising out of the progressive property movement, has much to say about public debt crises and the resolution of the different interests at play between debtors and creditors. In order to contextualize this argument, I use the Puerto Rican debt crisis as a lens through which to understand how progressive property theory should be used to reform the way property law has been interpreted in the context of public debt emergencies.
Sunday, October 16, 2016
Paul T. Babie (Adelaide) has posted Magna Carta and the Forest Charter: Two Stories of Property - What Will You Be Doing in 2017? (North Carolina Law Review) on SSRN. Here's the abstract:
The legacy of Magna Carta contains so much more than merely the protection of property in the hands of the individual or individual freedom at the expense of the freedom of others. Indeed, one of the great themes emerging from Magna Carta, when one clears away its uses in American law, is the recognition of the community and obligation towards others as a balance to the protection of the individual and individual rights. But the process of clearing away the use of Magna Carta in American law requires a reunion of Magna Carta with its historical partner, the Forest Charter. In four Parts, this Article seeks to reunite these two great partners through the telling of two stories — one, the well-known story of Magna Carta’s place in how we understand property and the other, the entirely forgotten story of the Forest Charter’s balancing of Magna Carta’s first story of property. While we commemorate the first story in 2015, the other lies hidden in the mists of time.
Kelo v. City of New London was in line with precedent, and within the “mainstream” of legal thought. But that is not enough to justify it. Like many of the Supreme Court’s worst decisions, it highlights the ways in which the mainstream can go disastrously wrong. Going forward, the best way to rectify Kelo’s errors is to overrule it completely, rather than rely on half-measures, such as building on Justice Anthony Kennedy’s hard to interpret concurring opinion.
Saturday, October 8, 2016
On Friday, October 7, Tulane University Law School and the Tulane Murphy Institute hosted its second annual Property Roundtable on the regulation of public and private property rights. This year, the Property Roundtable enjoyed scholarship presentations on three different themes. The first theme covered intellectual property, technology, and sharing. Under this heading, Sonia Katyal (UC, Berkeley) presented her work on the marriage of technology and cultural heritage, and how their relationship impacts the modern museum. James Stern (William and Mary) also discussed his scholarship which questions whether intellectual property is really as non-rivalrous as many claim it to be.
The second theme of the day was public-private property, with work presented by Nestor Davidson (Fordham) and Sarah Schindler (Maine). Davidson discussed how big data might be used to help provide affordable housing and the potential problems in doing so. Schindler examined privately-owned public open spaces, why they are created, the difficulties they create, and how cities might remedy those difficulties.
The last theme for the day was the rights and duties of owners. During this section, Seth Davis (UC, Irvine) discussed whether fiduciary law might apply to owners, while Sally Richardson (Tulane) talked about what privacy rights apply to spouses in community property jurisdictions.
The Property Roundtable sparked interesting conversations regarding property law involving the presenters and other Roundtable participants, including Mark Davis (Tulane), John Lovett (Loyola), and Marc Roark (Savannah). A big thanks to my dean, Dave Meyer, and the Director for the Tulane Murphy Institute, Steve Sheffrin, for continuing to fund such an excellent forum for discussing property rights.