Thursday, September 7, 2017
Municipalities from the Central Valley in California to Upstate New York bear the legacy of reckless mortgage lending. Foreclosed homes and toxic titles have caused blight and cost communities billions of dollars. Many cities tried to halt the risky loans by calling on state and federal legislators and regulators to intervene. Some even passed ordinances aimed at curtailing the high-cost loans that were destroying their neighborhoods. Their pleas were dismissed and their ordinances overturned. Ultimately, the subprime crisis played a central role in the great financial crisis when millions of people lost their jobs and, as a consequence, lost their homes too. As a result, municipalities have born the burden of empty, dilapidated homes that pepper once vibrant neighborhoods. A handful of cities have sued financial institutions, attempting to recover their losses. The lawsuits have been complex and expensive, and limits on municipal standing have dramatically restricted the relief cities can recover.
At the same time that cities were trying to stop abusive loans, most states and the federal government did nothing to curtail the making of unaffordable loans or the growing number of foreclosures. In the worst cases, governmental entities took steps that fueled risky lending. Later, when the subprime crisis morphed into the foreclosure crisis, state and federal governments failed to adequately assist municipalities.
I analyze the legal and regulatory problems municipalities encountered when they attempted to restrict high-risk mortgage loans and when they sought to recover for foreclosure blight. I argue that these problems are the result of a broader, more systemic issue: municipalities are severely limited in their ability to act against commercial interests that cause harm to their communities. In the case of risky mortgage lending, I contend that the sensible policy is to expand localities’ power to protect against actions by financial institutions that threaten or impose costs on communities and I introduce models for local regulation of home mortgage lending.
Monday, September 4, 2017
John Infranca (Suffolk) has posted (Communal) Life, (Religious) Liberty, and Property (Michigan State Law Review) on SSRN. Here's the abstract:
Property rights and religious liberty seem to share little in common. Yet surprisingly similar claims have long been made on their behalves, including bold assertions that each of these two rights uniquely limits the power of the state and serves as the foundation for other rights. This Article reframes the conception of property rights and religious liberty as foundational by foregrounding communitarian aspects of each right. Property and religious freedom are a foundation for other rights, but in a different manner than traditional accounts suggest. It is not the individual exercise of these rights that provides a foundation for other rights, but rather the complementary roles these rights play in the formation of normative communities that, in turn, serve as counterweights to the state.
This Article makes three distinct contributions to existing legal literature. First, it reveals the significant similarities in historical and theoretical conceptions of the foundational status of these two rights. Second, it integrates the developing scholarly literature on the communal and institutional nature of these two rights. Third, it builds upon this literature to contend that the right to property and religious freedom can indeed provide important foundations for rights more generally, but only if we sufficiently protect and nurture, through law, the communities and institutions upon which these rights depend. The Article concludes by suggesting new approaches to assessing a diverse set of contemporary legal disputes: religious communities seeking to locate in the face of local government opposition, Native American communities challenging government actions on sacred lands, and Sanctuary churches opposing immigration enforcement by sheltering individuals on their property.
Sunday, September 3, 2017
Cities across the country are adopting mandatory inclusionary zoning. Yet, consensus about the appropriate constitutional standard to measure the propriety of mandatory inclusionary zoning has not been fully reached. Under one doctrinal lens, inclusionary zoning is a valid land use regulation adopted to ensure a proper balance of housing within the jurisdiction. Under another doctrinal lens, challengers seek to characterize inclusionary zoning as an exaction, a discretionary condition subject to a heightened standard of review addressing the specific negative impact caused by an individual project on the supply of affordable housing in a jurisdiction.
Drawing from the experience of Baltimore, Maryland’s inclusionary zoning ordinance, this Article considers the impact that the uncertainty in the law may have had on the type of inclusionary zoning ordinance adopted by the city. This Article argues that the conversation about inclusionary zoning, land use regulation, and exactions has been formulated in the context of imagery about development that leaves places like Baltimore out. The imagery in these narratives is of an individual landowner powerless in the face of government overreach. The reality is different in those places where land developers are not powerless and instead are often politically influential repeat players. Thus, the real problem presented may be not how to craft doctrine to prevent cities from asking too much of developers, but instead to craft doctrine that ensures cities do not give away too much.
Friday, September 1, 2017
David Gray Carlson (Cardozo) has posted The Federal Law of Property: The Case of Inheritance Disclaimers and Tenancy by the Entireties (Washington & Lee Law Review) on SSRN. Here's the abstract:
The Supreme Court has issued two disturbing tax opinions which disrupt the notion that “property” (when used in federal statutes) refers to state-law notions. In Drye v. United States, the Supreme Court pierced the Arkansas fiction that inheritance disclaimers are retrospective in effect. Thus the Internal Revenue could claim that a tax lien attached to the pre-disclaimer inheritance. Disclaimer could not defeat this lien. In United States v. Craft, the Supreme Court pierced the Michigan fiction that a tenancy by the entireties does not belong to the individual spouses but, rather, the a corporate “marital” entity that is a separate legal person from the individual spouses. Thus, a tax lien encumbered an individual’s share of the entireties even though Michigan would aver that the individual spouse was not a property owner.
This article challenges the notion that tax cases are “special.” Rather, the claim is that these disturbing holdings apply in other federal contexts, especially in bankruptcy cases. Thus, the article claims that there is a federal law of property which is obliterative of state-law notions. The article therefore proclaims that, in bankruptcy, Butner v. United States (admonishing that state law provides the definition of property) is dead.
Wednesday, August 30, 2017
Christopher Serkin (Vanderbilt) and Micheal P. Vandenbergh (Vanderbilt) have posted Prospective Grandfathering: Anticipating the Energy Transition Problem (Minnesota Law Review) on SSRN. Here's the abstract:
Legal change has the potential to disrupt settled expectations and property rights. The Takings Clause provides protection from the most significant costs by requiring compensation following a change in the law, but threats of takings claims can discourage policymakers from adopting sound laws and policies. If specific legal changes can be anticipated far enough in advance, are there tactics available to reduce the risk of takings claims and blunt their political force in the future? We identify innovative tools that preserve regulatory flexibility so that legal changes can avoid takings liability, and we do so specifically in the context of natural gas and the acute threat of climate change. Natural gas poses a particular challenge to policymakers today. Rapid and widespread proliferation of natural gas is essential if we are to make major progress in reducing carbon emissions, but natural gas is often referred to as a bridge fuel because we will eventually have to pivot away from fossil fuel-based electric generation to reduce the risk of catastrophic climate change. Without timely intervention, investments in natural gas infrastructure today may result in vested property rights that the Takings Clause may then protect against significant regulatory changes. We argue that developing a record that constrains the reasonable expectations of investments in natural gas will help to preserve regulatory flexibility in the future. More aggressively, we also propose “prospective grandfathering” as a regulatory innovation. Announcing but delaying the adoption of new regulations, combined with accelerated cost recovery for utilities, should immunize future governments from takings claims if and when climate change compels movement away from natural gas as part of the de-carbonization of our energy supply. These new tools offer promise beyond natural gas, however, and provide a new way of addressing anticipated legal change.
Monday, August 28, 2017
Luke Meier (Baylor) has a new article coming out out titled Drafting a Texas Oil and Gas Lease to Ensure Enforceability of a Consent-to-Assign Clause: How to Make an Oil and Gas ‘Lease’ a Lease, 50 Tex. Tech L. Rev. __ (forthcoming 2017). The article builds on previous works Luke has written that closely examine oil and gas leases. The article argues that, through a simple drafting trick, a “true” term lease can be created when drafting an oil and gas lease, thus preventing a court from striking a consent-to-assign clause as an illegal alienation restraint of a fee estate. The article has a particular focus on Texas law, but the notion has far more reaching application for all involved in oil and gas law.
Saturday, August 19, 2017
(Photo Credit: Buffalo News)
Of the many ills that resulted from the 2008 financial crisis, none garnered such a fantastic moniker as did the “zombie mortgage crisis.” But despite its name, this isn’t an episode of The Walking Dead. Rather, the phrase refers to a practice by mortgage lenders (or, mortgage servicers to be more precise) whereby a notice of foreclosure would be given and the defaulted and distressed homeowner would typically move out in anticipation of a foreclosure sale. But then, the lender would decide not to go through with the foreclosure process after all.
Not finishing the process was typically due to the fact that the property was “underwater” (meaning that the net of the debt due on the mortgage loan and the value of the property subject to the mortgage was in the negative—the secured debt was greater than the value of the collateral, in commercial law terms). This meant that there was no chance the lender could recoup its losses at the sale, which typically resulted in the property becoming REO (owned by the lender itself). This might seem obvious, but lenders don’t like being property owners—they would rather get paid. One reason they really don’t like owning foreclosed property is because ownership comes with costs. For instance, the bank is going to have to pay any homeowners association dues that might be required (which failure to pay can result in a lien on the property). There could also be tort liabilities if someone is hurt on the premises. But the lender can avoid all of this (and did) by just not doing anything—leaving the house still titled in the name of the now-absent homeowner but also leaving the mortgage in place. Hence the name—the mortgage process is initiated, leading one (the homeowner) to believe that foreclosure will soon happen and the mortgage will be gone, only to have the mortgage linger on (potentially forever)--like a zombie. You get the gist...
After receiving notice from JP Morgan Chase in 2008 that foreclosure was imminent, homeowner Joseph Keller vacated his home, moved to a new residence, and tried to pick up the pieces and start again. Two years after he had relocated, however, the county sued Keller because his house, “already picked clean by scavengers,” was in violation of the housing code. Upon returning to investigate, Keller found his former home “in  shambles,” with “hanging gutters and collapsed garage.” Keller also discovered that he owed back taxes, sewer fees, as well as bills for municipal weed and waste removal. Furthermore, he remained personally liable on the Chase mortgage loan, the debt having grown from $62,000 to $84,000 because of two years of unpaid interest, penalties, and fees. Adding insult to injury, the Social Security Administration rejected his disability application because the vacant, crumbling home he still unwittingly owned was a valuable “asset.” Chase had dismissed the foreclosure judgment two months after Kelley had moved out, but somehow Kelley was never informed. (citations omitted).
And the zombie mortgage problem isn't just something that's bad for homeowners. Abandoned property of this kind has a huge impact that reaches far beyond lot lines. Stories abound of zombie mortgaged properties that fall into disrepair and become havens for crime and create public health concerns. This, in turn, has the effect of diminishing the property values of those parcels that are nearby—indeed, the whole community can sink with just a handful of scatter-site abandoned properties. And of course, where the problem is bad enough, local governments see a shrinking of property tax revenues as a result of the decline of neighborhoods where abandoned homes are located. Also, for those vacant properties in common interest communities (like a homeowners association or a condo association), the lender has no reason to pay the assessments (except for those few states which have adopted the limited super priority of the Uniform Common Interest Ownership Act). Whatever lien is imposed by the HOA for nonpayment will almost always be inferior to that of the lender's mortgage. Again, the mortgagee's interest is protected. Thus, those owners still left in the neighborhood must bear the burden of the unpaid assessments.
Naturally, social harms also follow the zombie mortgage practice. Consider, again, an excerpt from Boyack and Berger:
. . . [P]roperties subject to zombie mortgages are concentrated in low-income and minority communities. More than 57% of zombie properties are located in census tracts made up of households in the bottom 40% of income, compared to only 22.5% of zombie properties in communities where household income is in the top 40%. Statistically, if minority households compose at least 80% of a census tract, it is 18% more likely that a foreclosure in that community will end up a zombie mortgage compared with foreclosures commenced in other neighborhoods. (citations omitted).
So why is this important now, since the practice has obviously been going on for several years? Well, in the 2016 legislative session, the New York legislature passed a bill (effective December 2016) to try and address the zombie foreclosure problem. At the time the bill was passed, NY state officials estimated there were over 6,000 homes that were unoccupied and falling into disrepair.
So how does this law work? First, the legislation (known as New York’s 2016 Zombie Property and Foreclosure Prevention Act but more properly Part Q of Chapter 73 of the Laws of New York) has "mandatory" reporting requirements when it comes to informing the state about abandoned homes. Second, the law requires mortgage lenders (servicers to be precise) to maintain vacant and abandoned properties (something that previously was only required when the bank actually became the owner of the property). The trigger for the shift in the obligation to maintain the property comes when the lender has “a reasonable basis to believe that the residential real property is vacant and abandoned . . . and is not otherwise restricted from accessing the property.” If the lender fails to maintain the property, the government can impose a civil penalty of $500 per violation, per day, per abandoned property.
For lenders, the law gives them an expedited foreclosure process if there is a good faith showing that the property has been abandoned. Importantly, the new act mandates that the foreclosing lender must proceed to the foreclosure sale within 90 days of obtaining a foreclosure judgment. If the lender itself purchases the property at the auction, then it must ensure that the home becomes reoccupied within 180 days of the date of acquisition. Lastly, the legislature gave the governor $100 million to be used to help low- to moderate-income individuals purchase and make repairs to these abandoned properties.
So now that we’re one year in (well, a little less), how is the law working? Evidently there are some practical/enforcement problems, as recently reported by the National Mortgage News and other outlets. First, reporting requirements (although mandatory) are not easy to enforce. The law leaves it up to lenders and local governments to report homes that are abandoned or vacant—which can be spotty and unreliable. Also, despite the penalities, the New York Department of Financial Services (the body that is not necessarily charged with enforcement of the law but that has taken up the mantle) reports that no penalties have been assessed since the law took effect. Although the NY deparment reports that banks and their servicers are broadly complying, state officials admit that they do not send inspectors to the properties to assess the situation themselves. And some local officials, like the mayor of Lackawanna, NY, says that not all banks are complying with the law. He noted this past May 2017 that "[t]his is bringing down our neighborhood, not just Lackawanna, not just Western New York but all of New York State by having banks being absent in their obligations in what they're supposed to be doing."
Also, unfortunately the abandoned home registry is not public. State officials say that doing so would make it a target for “squatters and criminal activity.” I’m a bit incredulous about that claim, since I can’t imagine many squatters and/or everyday criminals being sophisticated enough to go check out the Department of Financial Services’ website and find its registry database (or even know about it) and then go through the process of finding the ideal abandoned home for their purposes. Like the CFPB’s complaint database, making this registry public could help researchers and academics in empirically studying the zombie foreclosure issue more closely.
Lastly, NY state officials hope to help local governments build the capacity necessary to enforce this law themselves (an additional task that most municipalities will likely find difficult to pay for without funding from the state or another source).
Here at the #PropertyLawProfBlog, we’ll keep an eye on how this law continues to be rolled out in New York (as well as what other states might be doing to address the zombie foreclosure phenomenon). For now, over and out!
Wednesday, August 9, 2017
The international peer-reviewed journal Planning Theory has put out a CFP for a special issue the journal is producing to "critically survey the current state of the concept of ideology as it relates to planning theory, policy and practice across a variety of geographical contexts and advance debates about its analytical value from a variety of different but related theoretical positions." Abstracts of 500 words are due by October 20, 2017 to Edward Shepherd (firstname.lastname@example.org).
Tuesday, August 8, 2017
The San Francisco Chronicle published a fascinating story yesterday about a group of Bay Area homeowners getting a big surprise when the city, in a tax foreclosure, sold their street! Here's some excerpts from the article:
Thanks to a little-noticed auction sale, a South Bay couple are the proud owners of one of the most exclusive streets in San Francisco — and they’re looking for ways to make their purchase pay.
Tina Lam and Michael Cheng have bought Presidio Terrace, a private street lined with expensive homes. Residents apparently had no idea the common spaces were up for sale.
The couple’s purchase appears to be the culmination of a comedy of errors involving a $14-a-year property tax bill that the homeowners association failed to pay for three decades. It’s something that the owners of all 181 private streets in San Francisco are obliged to do.
In a letter to the city last month, Scott Emblidge, the attorney for the Presidio Homeowners Association, said the group had failed to pay up because its tax bill was being mailed to the Kearny Street address used by an accountant who hadn’t worked for the homeowners since the 1980s.
Two years ago, the city’s tax office put the property up for sale in an online auction, seeking to recover $994 in unpaid back taxes, penalties and interest. Cheng and Lam, trawling for real estate opportunities in the city, pounced on the offer — snatching up the parcel with a $90,100 bid, sight unseen. . . .
Now they’re looking to cash in — maybe by charging the residents of those mansions to park on their own private street.
It's that time of year: time to dust off the old textbooks and get back in the classroom! Hope everyone enjoyed their summer break. We certainly did here at #PropertyLawProfBlog!
Apropos for this time of year, Tim Iglesias (San Francisco) has posted his recent essay A Novel Took for Teaching Property, 20 Chap. L. Rev. 321 (2017). Tim's essay argues that "property doctrines and rules are answers to several consistent legal questions, and that these questions provide a useful framework for teaching Property doctrine." Tim notes that by beginning with these consistent legal questions, students more easily "recognize the connections among doctrines and rules across topics instead of seeing Property as a disconnected group of topics and rules."
Welcome back to the classroom!
Friday, August 4, 2017
Why did, and does, the federal government own most of the public domain within the United States? The standard historical answers — that states ceded their lands to the federal government and the Property Clause confirmed this authority — turn out to be incomplete, masking a neglected process in the 1780s and ‘90s in which legitimate ownership came to derive primarily from the federal government.
This transformation, which I call the rise of federal title, involved two intertwined controversies. The first was a federalist struggle over whether the federal government could retain land in former territories admitted as states notwithstanding the promise of equal footing. The second concerned the nature of ownership. As states’ unregulated land grants created endless litigation, claimants turned to the federal government to resolve conflicting rights and to create a land system that offered certain title. Both processes vindicated federal ownership, with the consequence that the federal government enjoyed a monopoly on one of the nation’s most important sources of wealth.
This history proves highly relevant. The rise of federal title is under threat, as many western states, and the Republican Party platform, have spun a theory based on erroneous history that argues federal landholding is unconstitutional. Simultaneously, in constructing a principle of equal sovereignty, the Supreme Court’s recent Shelby County decision relied on equal footing cases that ignored this early history. But the implications transcend immediate doctrinal concerns: this Article suggests theoretical interventions about the interplay between sovereignty and property, and commodification and regulation, in American history.
Wednesday, August 2, 2017
This short essay reviews the regulatory takings legacy of Justice Antonin Scalia, evaluating both its impact on the Supreme Court's takings canon and its consistency with his stated jurisprudential principles.
Tuesday, August 1, 2017
As sad as it is to see a friend of the blog head over to the dark side (administration! *cue thunder claps*), we have to take a moment to congratulate our own Thomas Mitchell who was recently named interim dean at the Texas A&M University School of Law. Congratulations, Thomas! Cribbing from the announcement here:
Thomas W. Mitchell, J.D., LL.M., professor of law and co-director of the Program in Real Estate and Community Development Law, has agreed to serve as interim dean of the Texas A&M University School of Law. He will assume this position on August 1, 2017. He follows Andrew P. Morriss, J.D., Ph.D., who has agreed to serve as the founding dean of the School of Innovation and vice president for entrepreneurship and economic development at Texas A&M University.
Professor Mitchell joined the Texas A&M University faculty in 2016. He earned a B.A. in English from Amherst College, a J.D. from Howard University School of Law, and an LL.M. from the University of Wisconsin Law School, where he also served as a William H. Hastie Fellow. He previously served on the faculty of the University of Wisconsin Law School where he held the Frederick W. and Vi Miller Chair in Law and also served on the faculty of the DePaul University College of Law in addition to serving as a visiting research fellow at the American Bar Foundation and at the University of Chicago.
Professor Mitchell’s primary research interests focus on real property issues that impact poor and disadvantaged communities, many of which are rural. More broadly, he researches issues of economic inequality, specifically focusing on how the ability or inability of individuals or communities to build and retain assets can impact inequality.
Monday, July 31, 2017
Natalie M Banta (Drake) has posted Property Interests in Digital Assets: The Rise of Digital Feudalism (Cardozo Law Review) on SSRN. Here's the abstract:
The emergence of digital assets has created a host of new legal questions regarding their status as a property interest. Digital assets consist of intangible interests like e-mail accounts, social media accounts, reward points, and electronic media. These assets seem like a property interest, but because digital assets are a creature of contract, private contracts determine whether an owner can use, sell, transfer, exclude, donate, or dispose of the asset in a testamentary instrument. These digital asset contracts often take an unprecedented step of prohibiting or severely limiting the transfer of digital assets after death. By unilaterally eviscerating a long cherished right of property — the right to devise — these contracts create digital assets that are more akin to a license or tenancy instead of a fee simple absolute. Contractual terms controlling digital assets create a system this Article calls “digital feudalism,” characterized by absolutism, hierarchy, and a concentration of power. This Article examines property interests imbued in digital assets, namely the rights to use, control, exclude, and transfer. It analyzes digital assets under the labor, utilitarian, and personhood theories to justify their existence as a form of property. As a form of property, this Article argues that property law protects an individual’s rights to her digital assets — rights like testamentary disposition that cannot be contracted away. Property law has always mirrored society’s decisions about how to control and allocate resources and our treatment of digital assets are no different. Digital assets themselves function so similarly to property that we must apply traditional property law principles to ensure that our rights over digital assets do not regress into an anti-democratic and archaic form of feudalism in a technologically driven future.
Sunday, July 23, 2017
Paul Franzese (Seton Hall) has written an op-ed in New Jersey.com titled Tenants Shouldn't be 'Blacklisted' For Asserting Their Rights. Check out this excerpt:
Yanira Cortes, a mother of four young children, lives in subsidized housing in Newark's Pueblo City Apartments. Her apartment is unsafe and uninhabitable, infested by rats, roaches and mold.
Her complaints to the landlord have gone unheeded. Finally, when the premises' bathroom ceiling collapsed, she withheld rent as is her right under the law and was promptly sued for eviction.
As a result, she found herself placed on a tenant "blacklist" that is the equivalent of a miserable credit rating.
Tenants who appear on those "tenant screening reports" find themselves denied future renting opportunities and discriminated against because they asserted their right to safe and inhabitable housing. . . .
For the past two years my colleagues Abbott Gorin, David Guzik and I have studied the experiences of low-income residential tenants in Essex County. We found that landlords can use tenant screening reports generated by private reporting agencies as a means to penalize tenants who fight back against unsafe and unlivable conditions.
Tenants like Cortes find themselves punished for asserting their right to safe and inhabitable premises while landlords who lease grossly substandard affordable housing units continue to receive sizable state and federal subsidies for those units.
Monday, July 17, 2017
From our friends at the University of Detroit Mercy School of Law:
HUD: Past, Present, and Future
The University of Detroit Mercy School of Law seeks proposals from scholars, practitioners, and housing advocates interested in participating in its fall interdisciplinary symposium, entitled HUD’s Past, Present and Future (“Symposium”), which will take place over a two day period (with a third day being dedicated to educational outreach for the public) as follows: . . .
II. TWO-DAY ACADEMIC SYMPOSIUM: SCHEDULED ON MONDAY, NOVEMBER 13, 2017 AND TUESDAY, NOVEMBER 14, 2017
PURPOSE OF THE SYMPOSIUM
Since its inception in 1965, the United States Department of Housing and Urban Development (HUD) has been an integral part of affordable housing development and primary responsibility for developing sustainable communities across the country. While HUD’s role is clear, this seminal Symposium's purposes are to: 1) evaluate its impact and propose expansions or alternatives, if any, that will make it more effective in the future; and 2) for a time such as this, commit to use collective or interdisciplinary knowledge to enhance our nation. (“Goals”).
Ultimately, to comprehensively address this multi-dimensional topic, law professors and/or lawyers, sociologists, economists, elected officials, people from HUD, MSHDA, certified counseling agencies, the ecclesiastical community, financial institutions and diverse bar associations, among others from across the country, are invited to attend or participate. Specifically, participants will complete Power Point slides to make presentations at the Symposium, followed by article(s) which will be due on the date reflected below.2 As indicated in the attached Schedule B, the final panel discussion on the second day will focus exclusively on Michigan and how HUD's programs have impacted the region, generally, and Detroit, in particular.
IMPORTANT DATES, DEADLINES AND ACCESS TO INFORMATION:
Abstract and CV (collectively “Proposals”): August 15, 2017
Proposals should reflect the following: 1) Name of the Panel; 2) Topic and Abstract;3 and, 2) Scheduled Time.
Notification of Accepted Proposal September 1, 2017
IF PROPOSAL IS ACCEPTED, PLEASE NOTE THE FOLLOWING SUBMISSION DEADLINES:
Power Point slides: October 15, 2017
Final Article: January 15, 2018
Submissions and Information: email@example.com (Visiting Prof. Florise R. Neville-Ewell | 313.596.0230)
Saturday, July 15, 2017
Joe Singer (Harvard) has posted Property and Sovereignty Imbricated: Why Religion Is Not an Excuse to Discriminate in Public Accommodations (Theoretical Inquiries in Law) on SSRN. Here's the abstract:
May a hotel owner that objects to same-sex marriage on religious grounds refuse to host a same-sex wedding in its ballroom or deny the couple the right to book the honeymoon suite? Do public accommodation laws oppress religious dissidents by forcing them to act contrary to their religious beliefs or does discriminatory exclusion threaten equal access to the market economy and deny equal citizenship to LGBTQ persons? Answering these questions requires explaining why one property claim should prevail over another and why one liberty should prevail when it clashes with another. And answering those questions requires analysis of the relationship between property and sovereignty.
Sovereign power both creates and regulates the types of property rights that can be tolerated in a free and democratic society that values each person equally. Should we view sovereignty as a threat to property or property as a threat to sovereignty? Libertarians choose the first and liberals the second. But this is the wrong way to understand the relation between property and sovereignty. Property and sovereignty are not separate and independent concepts or spheres of social life that can be brought into relationship with each other. Rather, they are imbricated; they overlap like roof tiles. Our aspiration to live in a free and democratic society places certain constraints on both property and sovereignty. Such societies do not recognize absolute power, whether public or private. Free and democratic societies are committed to a substantive vision of both social relations and politics. We have fruitful debates about property and sovereignty and, in the end, must construct a legal system that effects an acceptable compromise between access and exclusion in the property regime.
Our historic practices regarding racial and other forms of discrimination and our evolving norms suggest that public accommodation laws enable access to the marketplace without regard to invidious discrimination. Religious freedom cannot operate to deny equal citizenship or opportunity. For that reason, a same-sex couple should not have to call ahead to see if they are welcome to book the honeymoon suite. Public accommodation laws do not infringe on legitimate property rights or religious freedoms; rather, they define the legitimate contours of liberty and property in a society that treats each person with equal concern and respect.
Tuesday, July 11, 2017
This Article analyzes the institutional design of city council compensation procedures and unpacks the normative concerns surrounding the pay of elected leaders of our cities. How much of "other people's money" should city councils be paid? Should city councils decide their own pay? Should voters? Should the state legislature?
The Article contends that existing compensation procedures – such as city council control and mandatory voter referenda – distort compensation outcomes. Where procedures enable financial self-dealing, standards manipulation, or the under-accounting of non-salary compensation, overcompensation is the likely result. Conversely, where procedures enable reelection rent-seeking, election pathologies, or reverse ratcheting, undercompensation tends to result. Neither outcome is desirable: overcompensation increases burdens on taxpayers and risks elected officials motivated more by pecuniary incentives than civic duty, while undercompensation can result in elected office being open only to those wealthy enough to afford it and produce a less effective and accountable government. To address these concerns, the Article advances a prescriptive framework to improve the institutional design of city council compensation procedures, and explores the unique second-order institutional design questions of state versus local control over city council compensation.
While compensation amounts are not necessarily determinative of quality of governance, compensation procedures affect who governs our cities. And who governs our cities matters because our cities matter. Cities are responsible for an significant share of public goods and services, and in the face of federal deadlock, cities are increasingly engaging in innovative policymaking on issues like climate change, civil rights, and consumer protection. By better understanding the impact of compensation process on compensation outcomes, we can better understand the future of our cities.
Thursday, July 6, 2017
If you're looking for some interesting summer reading, I highly recommend that you check out a new book by Joshua A.T. Fairfield (Washington & Lee) titled Owned: Property, Privacy, and the New Digital Serfdom (coming out at the end of this month by Cambridge University Press). I've had the pleasure of reading portions of this project over the past few years, and I've constantly been impressed by Joshua's way of exploring the role that technology is playing in our conceptions of property while at the same time really engaging with the theories of property. The topics discussed in this book are incredibly timely (particular in the age of ransomware and international hacking) as much of our identity and the business of our daily lives takes place online. Here's some excerpts from the book's summary:
In this compelling examination of the intersection of smart technology and the law, Joshua A. T. Fairfield explains the crisis of digital ownership - how and why we no longer control our smartphones or software-enable devices, which are effectively owned by software and content companies. In two years we will not own our 'smart' televisions which will also be used by advertisers to listen in to our living rooms. In the coming decade, if we do not take back our ownership rights, the same will be said of our self-driving cars and software-enabled homes. We risk becoming digital peasants, owned by software and advertising companies, not to mention overreaching governments. . . Owned explains how the increasing implementation of smart technology in our world today has changed the nature of property. Fairfield explains property theory and the legal regime of online ownership as it ties to the 'Internet of Things' - the interconnected system of digital technology as controlled by corporations who own the software needed to run these devices. . . .Owned should be read by anyone wanting to know more about the loss of our property rights, the implications for our privacy rights and how we can regain control of both.
If you want to read more of Joshua's work, click here. Happy reading!
Friday, June 23, 2017
Zach Arnold (DC lawyer) has posted Preventing Industrial Disasters in a Time of Climate Change: A Call for Financial Assurance Mandates (Harvard Environmental Law Review) on SSRN. Here's the abstract:
In the current era of accelerating climate change, rising sea levels, and increasingly extreme weather, coastal industrial disasters pose a large and growing risk to society. The private sector and public officials are both failing to adequately respond to this risk, and the familiar regulatory tools in this context, such as design mandates and adaptation subsidies, have significant drawbacks. This paper proposes a novel policy framework to prevent coastal industrial disasters. I argue that financial assurance requirements (FAMs), such as insurance mandates, can induce coastal industry to adapt to the coastal impacts of climate change and can ensure that the public will be fully compensated for any disasters that nonetheless occur. FAMs can mobilize the considerable expertise of third-party financial assurance providers and provide efficient incentives for private adaptation. Moreover, they are relatively simple to implement, making them especially suitable for state, regional, and municipal policymakers facing locally concentrated climate impacts, tight resources, and federal gridlock. FAMs are a promising remedy for a significant and increasingly urgent danger.