Sunday, June 12, 2016
Thanks to the support of the University of Passau, I’m spending the better part of my June doing research in Germany. Now that I’ve had my fill of schwein (pig), radler (lemon-y beer), and, of course, weinerschnitzel, and I’ve driven on the autobahn, and I’ve been hiking through scenic Bavaria, it’s time to get to posting about German property law.
Today we start with eminent domain. Germany, like the United States, constitutionally protects private property from being taken by the State. The German Basic Law, i.e. the German Constitution, provides in article 14(1) that “[p]roperty . . . shall be guaranteed,” property “entails obligations,” and property’s “use shall also serve the public good.”
“Public good” is interpreted by German courts to mean that the use must create a public advantage, regardless of whether that advantage is created by the State or a private entity. While that interpretation is like the Supreme Court’s interpretation of the Fifth Amendment in the U.S. Constitution, unlike the U.S., economic development is an insufficient public good. In other words, Kelo isn’t happening in Germany. In fact, some German courts have interpreted the public use requirement in the German Basic Law to require a public necessity in order for expropriation to occur.
In order for the State to take property, the State must pay compensation. Under Article 14(3) of the German Constitution, the compensation required is an “equitable balance between the public interest and the interests of those affected.” Thus, the U.S. notion of “just” compensation is not required; instead there is a balancing test which, of course, means that compensation in Germany for a takings could be lower than fair market value. This may seem objectionable at first to an American audience, but keep in mind that less property can be taken in Germany because of the more limited interpretation of public good under the German Basic Law. (Side note: a number of countries use public use/good and compensation to balance one another, i.e. the broader the definition of public use, the higher the compensation required and vice versa. Whether this works better/worse/or just differently than the U.S. approach is worthy of discussion, but that will be for another post.)
Finally, article 14(3) of German Basic Law requires that any taking be made “pursuant to a law,” which essentially means that legislation must set forth the necessary takings procedure. In practice, this works pretty similarly to the U.S. notion of procedural due process.
There you have it—a brief primer on takings in Germany. Over the next couple of weeks we’ll look at other classic property doctrines under German property law, so if there’s a burning question you have about the Bürgerliches Gesetzbuch (the German Civil Code), fire away. No guarantees you’ll get an answer—there is, afterall, a lot of radler here to consume—but I’ll see what I can do.
Now Germany is about to play Ukraine in Euro 2016, so time to do as the Germans and head for the biergarten.
Friday, June 10, 2016
Professors' Corner's free monthly webinar featuring a panel of law professors, addressing topics of interest to practitioners of real estate and trusts/estates
Sponsored by the ABA Real Property, Trust and Estate Law Section, Legal Education and Uniform Laws Group
Tuesday, June 14, 2016
12:30 p.m. Eastern/11:30 a.m. Central/9:30 a.m. Pacific
Mortgages and Condo/Homeowners Association Liens:
Recent Developments in Lien Priority
Wilson Freyermuth, John D. Lawson Professor of Law and Curators’ Teaching Professor, University of Missouri
Christopher K. Odinet, Horatio C. Thompson Assistant Professor, Southern University Law Center
Moderator: Tanya Marsh, Professor of Law, Wake Forest University
In all states, common interest ownership law permits a condominium, cooperative, or homeowners association to assert a lien upon a lot or unit within the community when its owner fails to pay the common expense assessment allocated to that lot or unit. In some states that have adopted statutes comparable to the Uniform Condominium Act or the Uniform Common Interest Ownership Act, the association has a limited priority for some portion of the unpaid assessments (typically, six or nine months’ worth).
In the wake of the mortgage crisis, the issue of whether (and to what extent) an association’s lien should have priority over other liens has produced a great volume of litigation as well as aggressive efforts by federal regulators to negate or pre-empt state law priority rules. Our speakers will address recent judicial, statutory, and regulatory developments, including: (1) the rationales for (and against) association lien priority; (2) whether the association’s lien priority constitutes a true lien priority or merely a payment priority; (3) whether the association’s limited priority is recurring or can be asserted on a one-time-only basis; (4) whether the association’s priority extends to interest, attorneys’ fees, and other costs of collection; (5) the effect of the federal Housing and Economic Recovery Act (HERA) on state law association lien priority rules; and (6) FHA’s proposed rule under which reverse mortgage loans would be ineligible for assignment in states that provide the association with limited lien priority.
Register for this FREE webinar at http://ambar.org/ProfessorsCorner
Tuesday, June 7, 2016
I’ve been thinking a lot lately about the property law aspects of debt (don’t let your head hit the keyboard as you fall into a deep slumber from reading that, now!). Most of my interest in this topic comes from my obsession with the Puerto Rican debt crisis. Unless you’ve shut yourself off from social media (or any media, for that matter) you likely at least know that the island, a U.S. territory serving as home to 3.5 million American citizens, is flat broke. They’ve defaulted on multiple interest payments to their bondholders, tried to enact their own bankruptcy-like law (overview by Stephen Lubben at Senton Hall here)--currently pending a decision from SCOTUS, and right now Congress is trying to pass a super special insolvency procedure to help out the island (for a little Citizens United flavor, take a look at this dark money ad urging the defeat of the bill). I’ll have a post on this topic, and the takings claims posed by the bondholders, next week.
But back to debt as property . . . The Supreme Court has long held that rights in debt (contract rights) constitute property. See Omnia Commercial Co. v. U.S., 261 U.S. 502 (1923); see also Lynch v. United States, 292 U.S. 571, 579 (1934) (“Valid contracts are property.”). And we freely buy, sell, and trade such rights all the time. Indeed, that’s what the secondary mortgage market and the private label mortgage market are all about! Buying and selling mortgage debt at discounted rates, typically (in the Fannie/Freddie context) to provide more liquidity to the residential housing market and thereby increasing the availability of credit.
But people buy debt for other reasons as well—to make money! There was a great (and, per usual, hilarious) discussion on John Oliver’s HBO show, Last Week Tonight, this past Sunday on the topic of “Debt Buyers.” Here’s the video:
In the show he points out a bunch of things about the debt buying industry—prominently discussing the shady practices of some of the industry’s less than wholesome characters. In fact, he sends a team with a hidden camera to the industry’s trade conference in Las Vegas. One of the panel presenters at the conference notes cavalierly that, despite state law requirements that debt buyers disclose to consumers that their obligation to pay the debt may be extinguished by the statute of limitations: “Who’s going to read and understand the words on this letter? The unsophisticated consumer? . . . I depose these plaintiffs in these lawsuits and they don’t even read the letter.” What a jerk! I bet he wasn’t too happy to see his remarks go viral.
But back to the point . . . the general idea of the show was to basically talk about how bad the debt buying business can be: how bad guys go after poor, unsuspecting consumer debtors and ruin their lives. But it strikes me that the issue of how one gets into debt and the ability of someone other than the original creditor to enforce the credit right are entirely different. Putting aside the former, is there anything wrong with selling debt like we sell tangible personal and real property? From a debtor’s perspective, does it really matter whether the original counterparty to the contract is the party now trying to enforce it? We could assume that there might be something particular about that specific obligee that makes contracting with him, from the obligor's perspective, special. In those cases we have doctrines of assignability. But, in the context of pure debt (the right to collect on an amount owed) in an arms-length transaction, it does not seem much different than a market for anything else.
But are there policy reasons why we should prohibit (or at least discourage) this type of market from becoming more robust (if it isn’t already – spoiler: it is already)? Chain of title problems certainly loom large in these transactions. As the segment above indicates, often all that is exchanged between the debt seller and debt buyer is the purchase price and an Excel spreadsheet with minimal information about the obligations owed. There’s also little due diligence done on the buyer’s end – such as ascertaining whether the debt is even still collectable. Perhaps one could argue that the nature of this particular type of “property” (specifically how it can impact vulnerable consumer debtors when owned by unscrupulous collectors) merits thinking differently about whether the debt buying business is just another property market. Maybe there are just too many bad guys or, if there aren't that many, the damage that the few cause is just too great.
My home state of Louisiana has a really interesting way of dealing with debt sales once litigation on the debt has commenced. We call it the “right of litigious redemption.” It basically works like this: Original Creditor commences a lawsuit against Debtor. As the litigation proceeds, Original Creditor realizes that he cannot (or does not want to) carry the lawsuit through to the end because it is too time consuming or is eating up too many resources (or for whatever reason). Instead, Original Creditor “sells” the lawsuit to Buying Creditor for a discounted purchase price. Now, Buying Creditor is the plaintiff against Debtor in the litigation. Under Louisiana law, Debtor can now pay to Buying Creditor an amount equal to the discounted purchase price he paid Original Creditor, and in doing so completely extinguish the lawsuit! Voila! Just like that. You can see how this is a great deal for Debtor. If the debt he owes to Original Creditor is $20,000, but Buying Creditor only paid Original Creditor $7,000 for it, then Debtor is essentially relieved of paying $13,000 worth of debt! The supposed policy reason for doing this has to do with wanting to discourage a robust market for the buying and selling of lawsuits from developing. To my knowledge, no other state in the U.S. has such a law (please correct me if I’m wrong in the comments below).
So what about property markets in debt? Good? Bad? Or . . . like most things, a little bit of both?
Saturday, June 4, 2016
Under U.S. law there is no property interest in mere facts. But with respect to factual data relating to human genes, a de facto property regime has emerged in all but name. The level of control that individuals have exerted over genetic data exhibits the classic hallmarks of Blackstonian property: the right to exclude, the right to destroy, dead hand control, divisibility, and alienability. This degree of control has arisen through an expansive interpretation of the ethical requirement of informed consent. Notwithstanding the ongoing evolution of federal research regulations that permit some data-based research to proceed without extensive consent requirements, actions sounding in state property law pay little heed to compliance with these regulatory procedures. The resulting property-like regime over genetic data has enabled individuals to bring litigation disrupting and even halting valuable biomedical research and leading to the destruction of valuable research resources.
Looking to Calabresi’s and Melamed’s seminal analysis of property and liability rules, I propose that the property-like treatment of genetic data be replaced by a combination of existing and new regulations of researcher conduct (liability rules) to protect individuals from abusive research practices. This approach would shift the landscape from one in which data-based research cannot occur without the consent of individual research participants, to one in which research is presumptively allowed, but researchers face liability for overstepping the bounds of permitted activity.
Monday, May 30, 2016
Holy bovem, Batman! Roman property law has made its way into popular culture! Who saw that coming? Certainly not the hundreds of students I have taught at Tulane who generally groan when I discuss the Corpus Juris Civilis. Hell, I never thought that Roman modes of acquiring ownership through possession would make it to the big time, but last Thursday it happened. Roman property law was front and center. And on ESPN, no less!
As a person who writes in comparative property law and thus manages to make generally old doctrines that date back to the 1200s even older by talking about their Roman roots, I felt like this when I heard the word called out. When I saw Twitter posting after Twitter posting on the topic, I started singing "I'm so excited." (My apologies to those of you who were also staying at the Hawthorn Suites in Champaign, Illinois and got stuck hearing my outburst.)
It was all pretty darn cool.
Unfortunately Snehaa Ganesh Kumar misspelled usucapion (she spelled it usicapion, which is super close, but the National Spelling Bee is way more serious than horseshoes or hand grenades). That’s okay. You are still a rock star in my book, Snehaa! In fact, your misspelling of the word brought more light to the ancient Roman concept, because let’s face it, who remembers the words the spelling bee contestants spell correctly?
Now that we can all spell usucapion, it is worth talking about what it means. Usucapio in Roman law was the idea that possession of a corporeal thing for the requisite period of time could ripen in to dominium (full ownership) of the thing. The need for some means of acquiring ownership through possession arose in Roman law because of the strictness and inconvenience in how property, and particularly land, was conveyed. Usucapio, then, provided a private method of ensuring the transfer of ownership of land, even when there was a defect in the title.
Usucapio applied on to Roman citizens, though eventually a similar concept, prœscriptio, was developed for foreigners to acquire property. To acquire ownership through usucapio, one had to be in good faith (bona fiedes) and have a lawful origin for claiming ownership (iustus titulus). Property that was stolen could not be acquired through usucapio. Similarly, violence could not be used to acquire property via usucapio. Initially, the period of possession required for usucapion was only two years for immovable property like land, and one year for movable property. Eventually, though, Justinian altered the time periods to require ten years of possession if the true owner of the property as present, and twenty years of possession if the true owner was absent.
Usucapion, as is evident by now, is the analog for our modern doctrine of adverse possession. My guess is that most people won’t introduce usucapion into their 1L property classes. Having introduced the concept to my 1Ls before, my experience is that it doesn’t go over as well in practice as I think it will, but maybe that’s just me. Suffice it to say, I’ve never had a student say, “Wow, that’s so cool. Will you teach us more Roman law, please?” But, in thinking about modern adverse possession law, it is always helpful to remember the original purpose and application of the Roman equivalent. I know of no state in the United States that requires more time of possession when the true owner is away from his property, but if a goal adverse possession is trying to achieve is to put the true owner on notice that someone has a competing claim for her land, should we give the true owner more time when she is away? Or does our purpose of keeping land in commerce trump so that the reverse should be true? Should good faith matter? Lots of jurisdictions believe it does. Were the Romans right on that point? All great questions to think about as we continue to ponder the doctrine of adverse possession.
So thank you Scripps Spelling Bee and Snehaa for reminding us about the ancient origins of the modern doctrine. And a big thanks for making Roman law cool to talk about, even if only for a passing moment.
Sunday, May 29, 2016
Can property include a right to government regulation? An enormous amount rides on this question. Billions of dollars in transferable development rights, flood and landslide protections, patents, pollution credits, utility service areas, access roads, taxi medallions, and grazing permits: these are some of the valuable interests claimed as rights in regulation. Are they protected property?
This Article answers the question and constructs an overarching framework for evaluating asserted rights in regulation. It determines that courts and legislatures actually recognize some property rights in government regulatory actions. It then synthesizes these authorities to create administrable rules for assessing such claims. In doing so, it integrates and advances disparate strands of property scholarship and provides courts with meaningful guidance for addressing these important issues.
In Regulating Sharing: The Sharing Economy as an Alternative Capitalist System, Professor Rashmi Dyal-Chand challenges the assumption – implicit in the fast-growing legal literature on the “sharing economy” – that companies in this sector operate in the manner of traditional firms. Framing the sharing economy as a “nascent form of a coordinated market economy”, Dyal-Chand calls for regulation rooted in a deeper understanding of the institutions – both the technological platforms most commonly associated with the sharing economy (Uber, Airbnb, TaskRabbit, and their ilk) and a burgeoning collection of more organic and democratic organizations — that shape this economy.
This short invited Response focuses on the potential of this second category of institutions to achieve a more equitable distribution of the economic benefits of the sharing economy. While I agree that much can be gained from a more critical reflection on the nature of the institutions that shape the sharing economy, I harbor skepticism regarding the current vitality and future potential of these alternative institutions. I first explore how intermediary institutions might strengthen the position of workers in the sharing economy. I then express a few hesitations regarding the prospects of intermediary institutions to adequately counterbalance the technological platforms that dominate the sharing economy. Finally, I offer suggestions for how, by drawing on discussions of the role of institutions in other areas of legal doctrine; an “institutional turn” in thinking about the sharing economy might inform both legal scholarship and regulation.
Do “cultural factors” substantively influence the creation and evolution of property institutions? For the past several decades, few legal scholars have answered affirmatively. Those inclined towards a law and economics methodology tend to see property institutions as the outcome of self-interested and utilitarian bargaining, and therefore often question the analytical usefulness of “culture.” The major emerging alternative, a progressive literature that emphasizes the social embeddedness of property institutions and individuals, is theoretically more accommodating of cultural analysis but has done very little of it.
This Article develops a “cultural” theory of how property institutions are created and demonstrates that such a theory is particularly powerful in explaining large-scale institutional differences between societies. Empirically, it argues that, in the two centuries before large-scale industrialization, China, England, and Japan displayed systematic and fundamental differences in their regulation of property use and transfer. It further argues that these legal and institutional differences are best explained by certain aspects of social culture, specifically by the criteria for sociopolitical status distribution. Some of these criteria are distinctly “cultural” in the sense that they were probably generated by the widespread social internalization of moral values, rather than by utilitarian bargaining.
Cultural paradigms can exist, therefore, in property institutions. If we assume, as conventional law and economics urges, that individuals generally approach property use and regulation through a self-interested and utilitarian mindset, their pursuit of personal utility can nonetheless be constrained or empowered by cultural norms of status distribution that determine their relative bargaining power.
Wednesday, May 25, 2016
Friday, May 20, 2016
What a way to finish up the day! I'm now in a panel titled "Fun Property: How Property Can Increase Recreation, Health, and Happiness." What could be more fun than this?
The first paper is by Avital Margalit (Sapir) who is discussing her paper, Private Ownership in Sport Clubs: In Whom We Trust? As an avid sports fan, I am pretty pumped up about this paper. Margalit begins by questioning the private owners of sports teams and their decisions. Though Margalit is focused on futbol, I can't help but think about American football and owners' decisions, like the good decision the Saints made in acquiring Cody Fleener or the crazy QB situation the Eagles have put themselves in. But I digress. Margalit's comment on ownership of sports clubs is that the owner does not always make decisions in the best interest of the team and/or fans. Margalit questions whether there is some manner in which fans' interest could be considered in the owner's decision-making. Yes, the owner owns the club, but Margalit argues the fans make up the essence of the team. Without the fans, the team would not exist. To give the fans some say, Margalit has a number of different ideas, some of which have been implemented in some jurisdictions. The most interesting ideas she suggests are providing some ex ante mechanism by which owners agree to consider fans wants before making big, non-player decisions, such as whether to change team colors. Another possibility would be to have a fans association that gets a vote in big decisions.
Next up is Dave Fagundes (Houston) and his paper Property, Acquisition & Happiness. Turns out there have been lots of studies of hapiness and its connection to other areas of law (tort, crim, etc.), but no study on happiness and property, so Fagundes is filling in this gap. Fagundes finds that acquisition of more property does not increase our happiness. You read that correctly: levels of happiness and levels of wealth are not inherently directly correlated. Why? Fagundes provides a number of reasons. For example, the more things a person has, the less the person enjoys each individual thing. Another example is that happiness is really governed by how much you owe, not how much you own. Fagundes uses this information to then rethinkg different property law doctrines. First, he utilizes the relation of hapiness and property law to find out where is property law going wrong. For example, Fagundes asserts that to the extent American property law is incentivizing home ownership, and even multiple homeownership, that may be actually decreasing an individual's happiness. Fagundes then asks what does happiness tell us about what property law should we do right. For example, research has shown that a bigger house does not make an individual happier, but an individual can grow dramatically more unhappier if the individual has to sit in traffic. To the extent our policies strive to encourage home ownership and the homes people think they want to buy are in the suburbs, far away from the employer, perhaps our policies should instead be designed to encourage people to buy houses closer to employers so that the employees can avoid the commute which we know will make the individual unhappy.
Happiness continues into the next paper which discusses the right to the countryside. The third paper on this panel is Louise Burns (Dublin) who is presenting her paper Law, Landscape and the Common Good. Access to the Countryside for Recreation. Burns explains that in Ireland, there is a relatively recent concept of the "recreational user." A recreational user is someone who comes on property he/she does not own, just for the heck of it, usualy for accessing a beach or the hills. The recreational user is not up to no good, but just goofing off (i.e. having fun). The problem is that under Irish law, the recreational user gets no tort protection from the true owner if the recreational user is injured on the land of another. Thus, the law discourages individuals from accessing the countryside. Burns has taken on the task of interviewing land owners to find out their thoughts on whether recreational users should be allowed on their land. Not surprisingly, landowners are against having recreational users on their property and supportive of being free fom liability for any injuries that occur on their property.
Last up for today is Adam Sheppard (University of the West of England) and his paper Health Check or Reality Check? Planning, Health, and Decision Making. Sheppard begins by stating that when contemplating development decisions, health and well-being are being taken into account more and more. For example, in Bristol there are limits on where fastfood franchises can be set up, namely that they cannot be within a certain distance of schools if the location of the fastfood chain would negatively influence the students' food and health choices. The limits on fastfood locations have been somewhat limited because courts have allowed fastfood chains to be near schools if they will be closed at the times children are going to or from school or they meet other conditions. Moreover, Sheppard notes that using planning as a mneas of promoting healthy life styles has limited positive effects. For example, if fastfood chains are not allowed near schools, there is no similar regulation prohibiting Starbucks or grocery stores from being near schools, and children can purchase equally unhealthy items from Starbucks and grocery stores. Ultimately, Sheppard offers a hierarchy of questions that should be answered if planning is to be used to encourage healthy lifestyles, the primary question being normative, namely should the government be using planning to encourage individuals to make better lifestyle decisions. Sheppard takes the position that it is not a bad idea for the State to encourage healthy (or healthier) life style decisions, but he's skeptical of whether planning can achieve the goals desired.
Panels are done for the day, but tune in tomorrow for more live blogging of day two of ALPS!
Moving on to the second afternoon panel, moderated by Susan Bright (Oxford), first up is Abigail Jackson (Birmingham). Her presentation, titled "Balancing Rights and Obligations: Change and Residential Tenancy Agreements in the UK", noted that most landlord-tenant law in the UK is localized. She stated that despite recent reforms, not much has changed - tenancy agreements are typical today of what's been seen in the past. Abigail did say that Scotland is an exception because of their stronger protection for tenants. Scotland limits the permissible causes for a tenant eviction (no-fault is disallowed) and creates a cause of action for "wrongful termination." She then discussed England's Model Tenancy Agreement, a recent government initiative attempting to balance the rights of the two sides. Abigail argued, however that it will likely not be very effective but that it could provide some predictions of future policies. She lastly noted some recent legislative developments in Wales that were similarly less progressive. She posited that a less local-centric system of landlord-tenant law would produce better results.
Next up is a joint presentation by T Amodu and Kate McCarthy. Their talk, titled "Invading that Sole and Despotic Dominion? Private Landlords as Proxies for Government Actors", explored the early works of Blackstone that emphasized the absolute nature of property law, although noting the ability of civil society (through parliament) to limit rights. They then shifted to the right to rent in contemporary times by focusing on recent government initiatives to limit the rental rights of immigrants by placing some obligations on landlords. The concluded by stating their concerns with how recent regulatory events have caused a fragmentation and a harmful paradigm shift in traditional property law.
Lastly, Melissa Lonegrass (LSU) talked about classification in law and the reconceptualizing landlord-tenant law as property law in the US. She noted that lease law had its roots in common law property, but in the 1960s and 1970s there was a shift to a contract-based approach because it was thought that property law's strict rules were too inequitable and that contract law would be superior. She then notes that, in reality, contract law has not done the job very well due to the disparate bargaining power between landlords and tenants and the penchant of contract law to enforce the agreements between the parties without much policing. Melissa then noted that after this shift occurred in lease law, property theory underwent a great debate that challenged the conventional view of property as being exclusion-based. She then concluded by arguing that the progressive account of property - focused on human flourishing - might actually be well-suited to remedying the deficiencies in landlord-tenant law under contract law and that a shift back to property law would be beneficial.
Great conversation in the room about the important issues of landlord-tenant law. It was particularly interesting due to the fact that the speakers came from so many jurisdictions and therefore gave the audience a great survey of developments in this area of the law across many countries. On to the conference reception!! Looks like the weather is holding out!
Today's keynote address at ALPS is by Dave Cowan (Bristol). David is discussing his project, The Properties of Tenure, which he is working on with Alison Wallace (York) and Helen Carr (Kent).
Cowan (& Co.) take on the topic of shared ownership in their paper with the purpose of highlighting the human narrative that is frequently missing in property law theory, and more particularly highlighting the experience of marginal owners, i.e. those frequently considered property "outsiders." To do so, Cowan interviewed 71 shared owners over the course of one year to get their perspective on their situation.
It is important at the outset to understand what Cowan means by "shared owner." Shared ownership in the UK is the idea, as Prime Minister Cameron recently said, that one can part-rent, part-buy property, all with the aspiration of eventually becoming the full owner. Shared owners buy a percentage of their home while renting the remainder from a landlord, in Cowan's case, a social landlord.
The problem with shared ownership is that despite its aspirational goals, in reality shared owners are simply long-term lessors. Shared owners are rarely able to become full owners for a variety of reasons, most involving a lack of financial means. Because of this, shared owners are in a highly precarious position though they maintain high hopes.
What Cowan learned from his interviews is that even though the description provided for shared ownership is very "neat," the institution itself was very "messy." Shared owners were somewhere between true owners and true renters. They were not in social housing, but they were not in private housing either. Their sense of ownership came not from their four walls, but what was on those walls. It came not from their gardens, but from their movable house plants. Ownership for shared owners was shown through their stuff, their things.
Cowan's research highlights, among other things, two important items for property law. First, shared ownership reminds us that application of the law is messy. Try as we might to create clean boxes in our property law--one owns or rents--those neat, clean boxes do not always translate to the real world.
Second, it is the human experience that people themselves place value in more than the institutions we create. The things, the stuff, shared owners had is what formed their views of themselves as "owners" (however precarious their situation) and what distinguished them from non-owners.
Off to the next panel! More live blogging to follow!
Greetings, all, from Belfast! Picking up the baton from my co-blogger extraordinaire Sally, I'm sitting down for the first afternoon session. The line-up is great and Rashmi Dyal-Chand (Northeastern) is serving as moderator.
First up is Lorna Fox O'Mahoney (Essex Law School). Her project focused on getting into the details of property sharing, while thinking about identity issues. In unpacking the idea of sharing in the UK she discussed the right to roam, home sharing and implied trusts, implied easements and restrictive covenants, squatting and adverse possession, and motivation/identity. O'Mahoney notes that the idea of the right to roam is centered around recreational amenities, and only benefits a certain group. "It is the right to stop, but not to stay." She also added that although adverse possession is typically noted as a poster child for sharing, it practically only benefits "insiders." She traces historical developments where tools for sharing started to emerge that allowed outsiders to share in the promise of property, but political forces (mostly lead by insiders) suppressed them - focusing on the progression of the constructive trust as an example. O'Mahony concluded by framing England's sharing property law story and projecting what hope there might be for future property sharing in the UK.
Next up is Thomas Mitchell (Texas A&M) giving a presentation titled "the sentimental, cultural, and historical value of African-American owned land." He pointed out how, among other things, concepts like eminent domain, nuisance law, and zoning end up really only benefiting the privileged class to the exclusion of others. He followed up by noting that underepresented groups, particularly people of color, have suffered the most at the hands of property law's favoritism to certain groups. He gave a background on partition issues in the US and how the law has helped breakup communities and even deprive individuals of basic shelter. Thomas then discussed his work with a uniform act regarding partition of heirship property (adopted in 8 states) and how this was emblematic of policymakers addressing the disparities that the law has caused in the past.
Lastly was Tim Mulvaney (Texas A&M) who discussed the idea that ownership or other property rights should be impacted (even diminished) depending on the human stories at play. He pointed out the story of a homeless encampment on city-owned property in New Jersey that provided basic services for 6-years to persons who were living in poverty. Then the city filed a trespass action to have the tent city removed. Tim notes that traditional property law would clearly favor the city because of the preference for the rights of ownership. Taking note of the progressive property movement, he asserted that there is value in focusing less on the formalism of traditional property law and more on the relationship between the city and the homeless persons and the real survival interests of the displaced individuals. Tim pointed out that two major concepts were at play in the judge's decision in this case to ultimately allow the people to temporarily remain: reliance by the people on this property for housing and the necessity caused by massive unemployment and a failure by the city to provide for homeless persons (there were no shelters in this town). He concluded by noting that while this decision may have diverged from traditional property rules, it nevertheless introduces an example of how explicit considerations of human stories can play a role in property disputes.
Fabulous job to all three in contextualizing and challenging the development of the notion of "sharing" in property law going forward.
Greetings from Belfast! The ALPS 2016 conference is going fantastically. From yesterday's tour of Belfast and reception at the Titanic Museum to this morning's panel I sat in on that discussed social justice and inclusion in housing across the globe, everything has been wonderful. Great job to Robin Hickey (Queen's University) for his efforts in hosting this conference.
Right now I'm sitting in on a panel titled "Ownership of the Body." It's 10:30am Belfast time and what is a better way to keep the morning going than talking about the human body--dead or alive, as these papers cover both--and whether we can apply property rights to the human body?
The first paper is by Heather Conway (Queen's University). Conway is discussing her paper Earth to Earth, Ashes to Ashes . . . ? Property Rights in Cremains. Conway's paper covers property rights in dead bodies. As Conway notes, in the 1614 case of Haynes, there is no property right in a dead body, but there are possessory rights in the dead body. The purpose of the possessory right was primarily been for burial purposes. Because the right relates largely to burial, the right of possession is a relatively short-lived right (pun intended). Conway's question is the extent to which this possessory right-only applies to cremains. As Conway notes, ashes are very different from a dead body and the options for what one does with ashes is much more vast than the options for what one does with a deceased body. Given the differences in ashes and bodies, Conway asks whether a more traditional property theory can be applied to cremains. Can we say that ashes are property? Even if a dead body is not property, can the ashes--which are created from a dead body--be classified as property? Conway takes this question to the next level. Ashes can be converted into other things like jewelry, vases, etc. (Go to LifeGem.com to learn more about turning the carbon remains of your loved ones into anything you want.) Once ashes are converted to, for example, a ring, the ring is certainly property. Does this make the ashes themselves property? And if so, what does that say about the dead body that lead to the creation of the ashes? These, and more, are the questions Conway is pondering.
Next up is Jessica Roberts (Houston) presenting her paper, Genetic Ownership. Roberts' query regards how the law regulates ownership interests in genetic data, and, more specifically, whether the individuals who provide genetic data should have an ownership interest in that data. There's obviously a number of cases on property rights in genetic information (think Moore), and in all of these cases, the person providing the genetic data tried to assert a property right. Courts and bioethic scholars tend to reject the application of property rights in genetic information, but as Roberts points out, private genetic testing companies are starting to contractually grant certain property rights in genetic data. Moreover, President Obama commented in February that he "would like to think that if somebody does a test on [him] or [his] genes, that that's [his]." Thus, Roberts says that it is time to rethink whether property rights can be applied to genetic data. Roberts' project begins this reconceptualization of property rights and genetic data, utilizes different property theories to genetic data, and ultimately applies a human flourishing theory of property to genetic data as a means by which we can create ownership rights in genetic data.
Last up is co-blogger Steve Clowney (University of Arkansas) presenting his article, Does Commodification Corrupt? Clowney's presentation commmences by discussing how today we allow for the purchase of things that 100 years ago would have seemed strange. Think about story many folks gawked at in 2005 when the online casino Goldenpalace.com paid Karolyne Smith (allegedly) $15,000 to have the casino's URL permanently tattooed on her forehead. Today, Clowney says, we buy and sell things we would not have bought and sold 100 years ago. In doing that, Clowney argues we inherently commodify new things, like our foreheads. Clowney's question, then, is whether commodifying things corrupts. He uses three case studies to examine this question: high end art appraisers, prostitutes, and sellers of Christian artifacts. For the art appraisers, Clowney interiewed 20 high end appraisers and asked whether their occupation corrupted their appreciation of art. Answer: no; art appraisers love art even more than they did before they got into the art business. For sex workers, Clowney's results are not as conclusive (yes, if you are wondering, he did in fact interview a lot of prostitues) but generally he found that the sex workers he interviewed did not dislike physical activity they engaged in outside of their work life, and seemed to even enjoy it more. And, as you might expect, the same result regarding corruption held up for sellers of religious artifacts. Thus, Clowney concludes that while there may be many reasons to keep certain things out of the market, the fear that commodification may corrupt may be overrated.
Wednesday, May 18, 2016
Last week Conservation Partners released a report titled "The Disappearing West," which maps the amount of land developed across the eleven states of the American West from 2001-2011. According to the report, natural lands are developed at a rate of one acre every 2.5 minutes, or 432 square miles per year. California is unsurprisingly developing the fastest. More surprising is that Wyoming -- the least populated of the eleven western states -- is not far behind, due to rapidly expanding energy development in the state.
The map is worth exploring, if only to see how your favorite places might have changed during the first decade of the 21st Century.
Monday, May 16, 2016
As many of you know, the annual meeting for the Association of Law, Property, and Society is this week in Belfast at Queen’s University. In honor of the upcoming conference, I thought I would answer a few questions that you may have about the conference.
Question: What topics will be discussed at the conference?
Answer: There are twenty-nine different concurrent panels running throughout the two-day conference, one plenary panel, and one keynote address. In other words, it will be 48-hours of all property, all the time! To give you a sneak peek, here are some of the panel titles: Regulating Landlords and Tenants, Tools for Urban Development, Housing and Shared Property Rights, Social Justice in Housing, Developing and Managing Natural Resources, and Modern Contests to Indigenous Lands, just to name a few. The keynote address will be given by Professor David Cowan of the University of Bristol. Professor Cowan’s speech is titled “Shared Ownership: Crisis Moment.” There will also be a plenary panel in honor of the late Marc Poirier titled “Tribute to Marc Poirier: Property, Identity, and Inclusion.” All in all, it should be a great, informative conference.
Question: I don’t know anyone going to the conference. Will people talk to me?
Answer: Of course! In order to help junior and senior property scholars mingle, we have even planned a mentoring lunch one day so we can help scholars with similar interests but at different stages of their careers meet one another. And there are multiple receptions where you will have ample opportunities to make new friends in the property world.
Question: How formal is the conference? Do I need to pack a suit?
Answer: Leave your suit at home. The conference is informative, but not overly formal. Each presenter is given 15 minute to present his/her work and then there is Q&A. It’s a great opportunity to test out works-in-progress and get good feedback and suggestions from folks.
Question: What’s the weather going to be like in Belfast?
Answer: It’s going to be in the 50s in Belfast, so dress appropriately. There is also a prediction of rain throughout the rest of the week, so be prepared.
Question: Are there things to do in Belfast?
Answer: Absolutely! The Titanic Museum is where the opening reception is on Thursday at 6:00pm, and the museum is supposed to be lovely if you have the chance to go tour it. The Ulster Museum is also great with some terrific natural history exhibits. It’s also next to the Botanical Gardens which are lovely. If you are more in a party mood, the Crown Liquor Saloon is a famous Belfast bar, though it is a hike from Queen’s University. And there is always Old Bushmill’s Distillery if you want to see some whisky made.
Question: How many people will be at the conference?
Answer: By last count, there will be around 110 people presenting work at the conference. It will be, to quote the presumptive GOP nominee, huuuuuuuuuuuuuuuuge!
Question: How is this super awesome conference being put on?
Answer: The conference is being put on thanks to the hard work of Robin Hickey and Jim Smith! Robin is a Senior Lecturer at Queen’s, a member of the ALPS Board, and an all around awesome guy. Three cheers for Robin for putting together a great conference! Jim is the John Byrd Martin Chair of Law at UGA and the current President of ALPS. Raise a glass to Jim for helping to make this annual meeting possible!
Question: I’m not going to the conference. Can I still find out about the papers that are presented?
Answer: Of course! Chris, Jerry, Steve, and I will all be there, and I’m pretty sure we will be blogging about different panels we attend, so we’ll certainly fill everyone in about the great scholarship going on.
I look forward to seeing those of you who are attending the annual ALPS meeting! It’s going to be a great time and a great conference.
(Photo Credit: Rawstory.com)
The good people over at the Homeless Rights Advocacy Project (housed at the Seattle University School of Law) recently produced a series of briefs on various legal and policy issues relating to homelessness. These reports will certainly be of interest to those teaching property (particularly with an emphasis on social policy and housing). Click here to access the briefs. Cribbing from the Project's release page:
The new reports examine the impacts of increasingly popular laws and policies that criminalize homelessness, such as prohibitions on living in vehicles, sweeps of tent encampments, pet ownership standards, and barriers to access at emergency shelters.
"Our research in 2015 started an important conversation, both locally and nationally, about treating people with compassion and fairness under the law," said Professor Sara Rankin, HRAP's faculty director. "These new reports take that conversation to the next level."
HRAP students conducted extensive legal research and analysis to complete the briefs, conducting interviews with a wide range of experts (including people experiencing homelessness); surveying municipal, state, and federal laws; and reviewing legal standards set by previous court decisions.
"We found that common homelessness myths are refuted by statistics, experience, case law, and common sense," said Justin Olson, a third-year law student. "These are the issues that people experiencing homelessness struggle with every day."
"The reaction by many cities to visible poverty has been to try to make it invisible using methods like homeless encampment sweeps," said Samir Junejo, also a third-year law student. "However, it's clear that we cannot sweep the problem of homelessness under a rug and hope it goes away."
Prejudice and unconstitutional discrimination against the visibly poor continues, Professor Rankin said. The new reports identify specific common problems and offer effective, legally sound alternatives.
Key findings of the 2016 reports:
- Nearly one-third of Washington cities surveyed ban people from living in their vehicles, even temporarily. Seattle has the highest number of ordinances against vehicle residency (20). Ordinances in Tacoma, Aberdeen, and Longview likely violate the U.S. Constitution.
- Business improvement districts can function as quasi-governmental agencies, regulating public space in ways that can unfairly target the visibly poor. The Metropolitan Improvement District in Seattle, for example, conducted 22,843 trespass and wake-up visits from 2014-15, a rate of roughly 62 interactions per day.
- The assumption that people experiencing homelessness can simply go to an emergency shelter is deeply flawed. Barriers to shelter access include lack of capacity, lack of accommodations for families, rules against unaccompanied youth, unsanitary or unsafe conditions, and sobriety requirements.
- "Sweeps" of homeless encampments are ineffective, traumatizing to residents, and potentially unconstitutional.
- Pets contribute to the emotional well-being of people experiencing homelessness, but pet owners face constant attention, harassment, and scrutiny by both passersby and law enforcement officers. Licensing requirements, anti-tethering laws, and standards of care laws unfairly target the visibly poor.
- Immigrants and refugees are particularly vulnerable to homelessness. Factors include economic challenges, language barriers, education barriers, housing instability, and legal status.
(Hat tip: Sara Rankin)
Tuesday, May 10, 2016
I am in recovery.
Recovery from spending two back-to-back weekends chaperoning eight-year-old girl sleepovers.
During the last weekend of April, I took my daughter and her Brownie Troop camping. Sure, thirteen little ones look cute standing on the dock making funny faces after fishing, but at 3pm when the heavens open and you are standing amid a rain storm with a group of screaming second graders, they are not quite as adorable. Or when 2am rolls around and the girls are like whac-a-moles—you get one in the tent in her sleeping bag and another one pops up. Again, not the precious angels shown here.
The next weekend (aka three days ago), my daughter had a sleep over to celebrate her eighth birthday. There were games, there were ice cream sundaes, there were high-pitched squeals. There was staying up until the wee hours of the morning to make sure the girls stayed down all night, and there was waking up before sunrise because, well, the girls were up and I like the downstairs of my house too much to let them have unsupervised control over it for any lengthy period of time.
While chaperoning these weekends of elementary school bliss, I realized that I could teach the better part of my 1L property class to the girls using the experiences they were having. It was a real life, in the moment type of class a la Jerry’s field class at the University of Idaho. It was, in the words of Tony the Tiger, grrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrreat.
I started at the very beginning, asking “what is property?” The girls looked at me like I was crazy, but then, so do my 1Ls when I ask the same question. Are your thoughts property? Is your persona property? Is your body property? All of these questions were dealt with during my chaperoning weekends.
8-year-old #1: (high-pitched yelp) She’s touching me! She’s touching me!
8-year-old #2: (higher-pitched yelp) She started it! She touched me first!
Me: (after drinking a sip of beer) Everyone keep your hands to yourself. Your body is yours, though we don’t want to call your body your “property” as that has negative connotations. But you have full rights to exclude everyone else from your body, unless parts of your body or organs have been removed, in which case you have no rights to them. See Moore.
8-year-olds #1 and #2: (looking at me like I have two heads) Huh?
Me: Well, you see there was a guy in California . . . . (8-year-olds run off, having forgotten what they were fighting about and now sharing the common thought that I’m nuts, not unlike my 1L property students)
Next, I taught about the Tragedy of the Commons.
Me: (putting out four large, family-sized bags of potato chips that were sufficient to feed an army) Snack time!
All 8-year-olds: (gulping down chips like they have not been fed for days) Gimme! She got more chips than I did! (munch, munch, munch) I want more! (smack, smack, smack)
Me: Sigh. (drinks longer sip of beer) I will divide the chips into even amounts for you, otherwise you will overconsume the chips out of fear that someone else will get your chips, thereby depleting all of our chips, and leaving us with no more snack time resources. This is a good time for me to tell you a story. Gather ‘round everyone for a cattle-grazing tale by a man named Garrett Hardin . . .
My 8-year-old: (whispering) Mom, please don’t embarrass me.
Me: Siiiiiigh. (opens another beer)
Then we moved into what makes up the proverbial bundle of sticks of property rights by first looking at the right to exclude.
8-year-old #1: (in a whining voice because she has a belly ache caused by overconsuming chips) She’s laying on my sleeping bag and pillow!
8-year-old #2: (in an equally whiny voice) I like yours more than mine. Let’s trade.
8-year-old #1: I want mine! Make her give me mine!
Me: Everyone has to use their own sleeping bag. No one touch other people’s stuff. Your sleeping bag is your own personal, private property so you have the ability to exclude everyone else from your sleeping bag.
8-year-old #1: (whispering in my 8-year-old’s ear) What is your mom talking about?
My 8-year-old: (opens her eyes wide, glaring at me with that “please be quiet” look) Mooooooom!
Having multiple kids sleeping in the same tent naturally leads to a discussion about the right to include.
8-year-old #1: (tears streaming down her face) They won’t (sob) let me (sob) in the tent!
Me: Everyone in the tent come out.
Three girls come out, looking sheepishly.
Me: You can’t exclude anyone from the tent. Everyone gets the right to use the tent. The tent is like a public thing or a quasi-public thing. Everyone has a right to . . .
8-year-old #1: (no longer crying) Do y’all want to go fishing?
All 8-year-olds: YAY! (they run off)
Me: Sigh. (shotgun second beer)
Fishing brings us to a lesson in the rule of capture.
8-year-old #1: I caught a fish! I caught a fish! I caught a fish! (waiving around a fishing rod with a small bass hanging on the end, still stuck on the hook)
Me: Hold still and let me take the fish off the hook. (insert mild expletives under my breath as I get stuck by the hook while removing the fish) There! (throw the fish into the bucket that is holding all of the fish)
8-year-old #2: Ooooh! I want your fish! (sticks hands in the bucket)
8-year-old #1: She’s touching my fish!
Me: Don’t bother the fish. That’s her fish because she caught it. When you capture something that is a res nullius, like a wild bass, it becomes yours under the rule of capture. The rule of capture is really fascinating because . . .
8-year-old #3: We’re catching tadpoles over here!
8-year-old #1 and 2: FUN! (recently caught fish is dropped on the ground and jumps around, finding its way back into the lake before I can grab it)
Catching tadpoles with nets allowed for a lesson in future interests and, shocking as it may be, the RAP (or at least the fundamental ideas behind the RAP).
8-year-old #1: (to 8-year-olds #2 and 3) You can use the net now, but after y’all use it, you have to give it back to me.
8-year-old #4: I want a turn!
8-year-old-#1: I gave the net to 8-year-olds #2 and 3 and then I get the net back.
8-year-old #4: (looking at me) She won’t let me have a turn!
Me: (looking at 8-year-old #1) You can’t control who uses the net that long after it’s been in your possession. You can only control the use of the net for 21 minutes after your possession of it because otherwise you would be exercising too much long-term control over the net and for the good of all of us on this camping trip, we want the net to be more transferable and usable by lots of different people so . . .
8-year-old #2: People are going hiking! Let’s go! (drops net into the lake such that I have to wade in to grab it)
Eventually, the fishing, tadpole-hunting, and hiking came to an end and we commenced roasting weenies and s’mores. I brought with us some long roasting sticks and put them out for the girls to use, which prompted a good discussion on adverse possession.
8-year-old #1: (tugging on my shirt while pointing at essentially all of the other 8-year-olds) She took my roasting stick!
Me: (thinking “why did I agree to be the Brownie Troop leader?”) Are you sure it was yours?
8-year-old #1: (confidently) Yes! (pointing aimlessly at the table behind her) I put my stick on this corner of the table three hours ago and told everyone not to touch it, but she (again, pointing at the collective group) picked it up and has been using it to roast two hot dogs and four marshmallows.
Me: (taking a deep breath) She’s been possessing the stick for a pretty long time. I think the stick is now hers. After you adversely, physically, openly possess property for a long enough period of time, that property becomes yours.
8-year-old #1: That’s not fair.
Me: I know it seems unfair, but there are a lot of reasons we say the adverse possessor gets the property. It requires you, the true owner, to pay attention to your marshmallow roasting stick instead of just leaving it, unattended on the table. It creates stability in title so 8-year-old #2 eventually can be confident the roasting stick she’s using is hers and won’t be taken away. It encourages her to use the roasting stick and develop it, shape it, bend it, into the best roasting stick she can make . . .
8-year-old #1: Chocolate!!!! (runs off when a new box of Hershey chocolate bars is opened)
Me: Sigh. (realizes beer is not strong enough so opens up flask of bourbon)
Finally, we all learned about the virtues of easements.
Me: Okay girls, everyone get in their sleeping bags and close their eyes. It’s time to go to sleep.
8-year-old #1 moves her sleeping bag to be right in the pathway I’ve created for the girls to exit the tent
Me: Put your sleeping bag back where you had it. We need to leave a pathway for folks to get out of the tent.
All 8-year-olds in unison: (in a voice that says “I’ll do anything to stay awake a little longer, even listen to your crazy lectures”) Why?
Me: Well, someone may need to potty in the middle of the night, so we need to have an easement so y’all can exit the tent. When you have an easement, you cannot block the use of that easement because . . .
All 8-year-olds: Zzzzzzzzzzzzzz.
There you have it. Property 101 through the eyes of an 8-year-old. We didn’t quite cover everything—I haven’t yet figured out how to work mortgages into the conversation—but we covered a lot. The conversations didn’t go exactly as I’ve described above. The girls were not nearly this whiney, in fact they were all actually pretty good, and while I'm not a particularly cool mom, I am a cool enough mom to not mention Garrett Hardin to my daughter’s friends. But all of the general activities described above did occur and the girls had a great time, which may be more than I can say for all of my 1Ls. Who knows, maybe they even took away a few lessons in property law.
Monday, May 9, 2016
Professors’ Corner's FREE monthly webinar featuring a panel of law professors, addressing topics of interest to practitioners of real estate and trusts/estates.
Sponsored by the ABA Real Property, Trust and Estate Law Section Legal Education and Uniform Laws Group
Tuesday, May 10, 2016
12:30 p.m. Eastern/11:30 a.m. Central/9:30 a.m. Pacific
A Lawyer’s Guide to the Law of Public Art
Tyler T. Ochoa, Professor of Law, High Tech Law Institute, Santa Clara University School of Law
Anthony L. François, Senior Staff Attorney, Pacific Legal Foundation, Sacramento, CA
Moderator: Christopher K. Odinet, Assistant Professor of Law, Southern University Law Center
The use of art in public spaces has captivated the minds of federal, state, and local policymakers in recent years, with some cities even requiring that private developers include public art in all new projects. Moreover, ownership of public art has drawn the attention of lawyers and advocates, particularly when it comes to competing property and management rights between the public, the artist, landowners, and interested third parties. This program begins with an overview of the intellectual property rights in connection with public art, explaining the differences between the rights in the intangible work and the rights in the physical object itself. The program continues with a case study of the City of Oakland's art requirement for private real estate developers, exploring the property and related legal issues that surround such regimes.
Register for this FREE webinar by clicking here.
Thursday, May 5, 2016
This article considers fragmented property systems – the phenomenon of contested, separated or overlapping sub-systems within a national property jurisdiction. One example is circumstances of property despite law. Globally, as many as a billion people claim de facto property without recognition by law in urban informal settlements and agro-pastoral or forested areas. Another example is property without transition to law. Many households in the developing world regulate land markets through local mechanisms notwithstanding opportunities or requirements to use law. The article provides a conceptual frame for the emergence of property system fragmentation based on the private coordination of property relations. The article argues that fragmentation emerges in complex property systems where law attempts to displace property coordination mechanisms, but fails to induce a critical mass of property participants to alter coordination strategies. A focus on coordination provides a means to combine the methodological individualism of economic narratives with collective variables highlighted by other perspectives on property such as anthropology and complex systems theory.