Thursday, March 10, 2016
Those of you who watched the Thursday night's debate heard about HB-1 Visas, Common Core, Social Security, etc. But let’s focus on something else: eminent domain. The question for Property Profs Blog readers—who is more against eminent domain, Ted Cruz or Marco Rubio? You decide.
From Team Rubio:
The fundamental right to private property has been under assault for years through government’s abuses of eminent domain. Eminent domain is the authority vested in government to force the sale of private property. While this authority can be a necessary evil in rare cases related to public development, such as the building of crucial infrastructure, its modern use far exceeds this limitation. Today, it is often wielded by crony capitalist politicians to benefit wealthy and powerful private developers.
Like the defense of other crucial rights, conservative efforts to defend private property are grounded deep in the history of our nation. In fact, abuses of this right were one of the catalysts for the American Revolution. As the first Continental Congress declared, “[The colonists] are entitled to life, liberty and property: and they have never ceded to any foreign power . . . a right to dispose of either without their consent.”
After being founded, in part, to protect these rights, our government has strayed far from this purpose. Compromise after compromise from elected officials in both parties has resulted in a government that believes it has the power to seize your property and sell it to rent-seeking private interests.
My guess is that some of the "crony capitalists" Rubio is at odds with have donated money to his campaign, but that’s just my guess. Pfizer, the “crony capitalist” at the heart of Kelo gave $5,000 to Rubio’s Senate campaign in 2010, though to be fair, Pfizer gave $5,000 to everyone running in Florida's Senate race that year.
Rubio’s website is not the only place he has attacked the Fifth Amendment. Back when the candidates were going door-to-door in New Hampshire, Rubio blasted Trump for supporting eminent domain. Rubio said while in the Florida legislature, he helped to pass “what has become model legislation for other states around the country, that actually passed both a law and a constitutional amendment that keeps developers like Donald Trump from using the power of eminent domain to take private property away from an owner and give it to another owner.”
While in the Florida legislature, Rubio did in fact do what he said he did. Rubio sponsored the Florida legislation in 2006 (House Bill 1567 and House Joint Resolution 1569) that makes eminent domain less than helpful for developers. Under Florida law sponsored by Rubio (and signed into law by then-Governor Jeb Bush), localities must wait ten years before transferring land taken by eminent domain from one owner to another, thereby effectively making it a less-than helpful means for developers to acquire property.
Now from Cruz’ Corner:
Not to be out done, Cruz has also boasted about how much he dislikes eminent domain, though Cruz has done so through TV ads, instead of his campaign website.
Protecting private property rights is an important issue for many of the early primary states like South Carolina, Nevada, and Alaska, so the Cruz campaign cut another ad regarding eminent domain, using very young children, Donald Trump-like dolls, and doll houses. Needless to say, this ad caught the eye of many in reporters.
And then there was a third ad.
It's safe to say, Cruz, like Rubio, is also against using the Fifth Amendment to acquire private property for public use. Except, Cruz does have an exception his anti-eminent domain stance. That exception? Immigration. In July 2012, Cruz was asked about whether eminent domain could be used to take Texans' property for the purposes of building a wall between Texas and Mexico. The answer: a resounding yes because it was an issue of national security.
So you can decide--who stands stronger against eminent domain? Cruz or Rubio?
Tune in soon for a look at John Kasich's stance on the Fifth Amendment and then we will turn to the Dems.
Wednesday, March 9, 2016
Lisa Sun (BYU) & Brigham Daniels (BYU) have posted Externality Entrepreneurism on SSRN. Here's the abstract:
The way that economists have taught us to think about externalities — asking us to identify, measure, and internalize them — while useful, has created a substantial blind spot. According to economic thinking, the law ought to incentivize or force those who create externalities to internalize them. Yet, internalizing externalities is just one way of many that externalities shape law and politics: legal and political actors frequently employ externalities to galvanize or oppose change by strategically identifying, selecting, framing, and promoting externalities. These actors exaggerate and highlight different externalities with the aim of capturing the attention of individuals, the media, networks of interest groups, and ultimately legal and political decisionmakers. We call those who use externalities this way “externality entrepreneurs.” Externality entrepreneurism is prevalent in all levels and branches of government and in almost every area of law and policy, yet it is completely unexplored in existing scholarship. This Article seeks to remedy that neglect and begin the broader conversation about this vitally important lens. Because externality entrepreneurism is so ubiquitous and universal, understanding it is critical not only for those who wish to create change in our political and legal institutions but also for those who wish to more fully understand and evaluate the mechanisms by which such change occurs.
Tuesday, March 8, 2016
Peter Menell (Berkeley) has posted Property, Intellectual Property, and Social Justice: Mapping the Next Frontier (Brigham-Kanner Property Rights Conference Journal) on SSRN. Here's the abstract:
Professor Joseph Singer’s property scholarship explores the human, cultural, social, and distributive dimensions of property law. Using his body of work as a springboard, this article explores the cross-currents flowing between intellectual property and social justice. Part I examines the limitations of tangible property theory as a frame for understanding intellectual property policy. Part II distinguishes between internal, largely utilitarian, analysis of particular modes of intellectual property protection and the external interplay of intellectual property systems and broader social justice concerns. Part III explores the macro interplay of intellectual property and inequality, gender and racial inclusion, and global justice challenges, highlighting complexities, tensions, and paradoxes.
Linda Coco (Barry) has posted 'Foaming the Runway' for Homeowners: U.S. Bankruptcy Courts Preserving Homeownership in the Wake of the Affordable Modification Program (American Bankruptcy Institute Law Review) on SSRN. Here's the abstract:
Since 2008, Congress has enacted manifold legislation aimed at reversing the effects of a housing crisis, but each law has ultimately inured to the benefit of banks and financial institutions. Homeowners have rarely, if at all, experienced benefits of the legislation and often have experienced greater harm. In fact, banks and financial institutions have systematically leveraged their bailouts to pressure individual homeowners to continue paying in full mortgages on properties that no longer hold value. These results evidence the failure of the Home Affordable Modification Program ("HAMP") and other federal programs, but bankruptcy courts in the United States offer homeowners an alternative remedy: a forum in which banks must negotiate with homeowners in good faith and a mechanism for permanent modification of home mortgages.
This Article discusses the ineffective assistance provided to individual homeowners under the Home Affordable Modification Program. Part II of this Article argues that the unequal protection provided by the bailout legal structures and the manner by which these programs entrench an emergent economic and political structure result from the neoliberal economic project. Part III of this Article describes how homeowners turned to the U.S. bankruptcy courts for alternatives to mortgage foreclosure in state court. Part IV discusses the authority under the Bankruptcy Code and bankruptcy rules for the implementation of formal mortgage modification programs. Part V describes how various courts address mortgage modification through existing practices. Part VI discusses, as a detailed example, the Middle District of Florida's residential mortgage modification mediation program. Finally, this Article considers whether bankruptcy court is an effective forum for mortgage modification.
Monday, March 7, 2016
Michael McConnell (Stanford) & Luke Goodrich (Utah) have posted On Resolving Church Property Disputes (Arizona Law Review) on SSRN. Here's the abstract:
In recent decades, major religious denominations have experienced some of the largest schisms in our nation’s history, resulting in a flood of church property disputes. Unfortunately, the law governing these disputes is in disarray. Some states treat church property disputes just like disputes within other voluntary associations — applying ordinary principles of trust and property law to the deeds and other written legal instruments. Other states resolve church property disputes by deferring to religious documents such as church constitutions — even when those documents would have no legal effect under ordinary principles of trust or property law.
We argue that both courts and churches are better served by relying on ordinary principles of trust and property law, and that only this approach is fully consistent with the church autonomy principles of the First Amendment. Only this approach preserves the right of churches to adopt any form of governance they wish, keeps courts from becoming entangled in religious questions, and promotes clear property rights. By contrast, deferring to internal religious documents unconstitutionally pressures churches toward more hierarchical governance, invites courts to resolve disputes over internal church rules and practices, and creates costly uncertainty.
John Nolon (Pace) has posted Mitigating Climate Change by Zoning for Solar Energy Systems: Embracing Clean Energy Technology in Zoning's Centennial Year (Zoning & Planning Law Report) on SSRN. Here's the abstract:
Adopting land use regulations that encourage solar and other clean energy systems is an essential strategy for promoting clean power and one that focuses on the essential role that local governments play in mitigating climate change. This article explores efforts at the state and local level to reform zoning and land use regulations to permit, encourage, require, and incentivize rapidly-evolving clean energy systems, particularly solar, that, in the aggregate, have the ability to significantly increase power generation and decrease carbon emissions. The article illustrates how zoning, as it approaches its 100th anniversary, is encrusted with provisions that prohibit or discourage clean and solar energy systems: barriers that are being removed by progressive communities, some more successfully than others. It describes these barriers, then provides a framework and best practice examples for revising zoning codes and other land use regulations, first to eliminate regulatory barriers to permitting clean energy systems, focusing on solar as an example, and then to require and incentivize clean energy system deployment. Included is a review of the common law of solar access easements that helps explain the importance of the legislative powers of local government to facilitate solar power generation. The article concludes with an endorsement of state and federal actions that increase the speed of local adoption of zoning reforms by providing critical support, consistent with new scholarly findings that demonstrate how top down governmental influences can facilitate bottom-up progress, charting a strategy applicable to many other local initiatives to accommodate a wide array of emerging clean energy systems.
Sunday, March 6, 2016
(Photo Credit: Huffington Post)
Affordable housing issues continue to plague the American poor and middle-class. The size of the average home has grown significantly in the past fifty years. In fact, "homes are now two-and-half times larger than they were in 1950." As a result, prices have also increased. Along with this growth has been a similar ballooning of the country's homeless population - with some estimates pegging the total number in the U.S. at around 3.5 million in 2015.
Cities and local governments are being looked to more than ever to solve the country's social ills, including those related to housing. One way cities have tried to deal with homelessness is through partnering with local community groups and non-profits to build tiny homes - small, low-cost enclosures built to combat curbside homelessness. For instance, Seattle was the most recent city to join the effort when it constructed a collection of 14 tiny homes on local church-owned land. The structures are about 8x12 feet and provide insulation, heat, and electricity, with a central building in the tiny home village providing shower and bathroom facilities. Groups in other cities, such as in Portland and Madison, have also embraced the tiny homes movement.
But not all local leaders are thrilled about the proposition of pop-up villages in their neighborhoods. Political and community leaders in Los Angeles are in the middle of a huge fight right now over what to do with the prevalence of tiny home encampments popping up throughout the city. Advocates argue the tiny homes help deal with a pressing homelessness problem that the city seems unable to solve. Opponents, however, state that the encampments are unsafe, serve as a haven for crime, and diminish the overall quality of the neighborhood. The Los Angeles Times reports:
Escalating their battle to stamp out an unprecedented spread of street encampments, city officials have begun seizing tiny houses from homeless people in South Los Angeles. Elvis Summers, who built and donated the structures, removed seven of the gaily painted wooden houses — which come with solar-powered lights and American flags — on Wednesday and Thursday ahead of a scheduled city sweep.
Summers, an L.A. resident who says he was once homeless, had placed them within encampments on overpasses along the 110 Freeway, for homeless people to use instead of tents. But three structures impounded earlier this month remain in a city storage lot, a Bureau of Sanitation spokeswoman said, and the city notified occupants they would be “discarded.”
"These people are beaten down so hard, you give them any opportunity to be normal, it lifts them up," Summers said.
Councilman Curren Price, who represents the neighborhood, said the houses pose serious health and safety risks. “I’m getting complaints from constituents who have to walk in to the streets to avoid them,” Price said. Authorities destroyed needles, drug setups and a gun seized from one or more of the houses and tents during an earlier cleanup.
Some advocates for the homeless see the single-story structures — about the size of garden shed — as a cheap and safer alternative to having the homeless sleep on the sidewalks. . . The tiny house crackdown came as the city continues to struggle to balance enforcement with housing and other aid for the burgeoning homeless population. The city passed a tough new sweeps ordinance that identified tiny houses as “bulky items” subject to immediate confiscation. More than 30,000 people sleep on the streets in Los Angeles County. * * *
Kenner Jackson, who lives in a tiny house with his wife, Becky, and terrier, Cowboy, said officials were "taking houses from people who need them right now. ... Their plan isn't anything." Jackson said the city hauled away homeless people's possessions while leaving bulky items like mattresses and chairs that residents dump next to the freeway.
Johnny Horton, 60, whose heavily bandaged legs were scored with wounds from uncontrolled diabetes, wept silently Wednesday as he contemplated going back to sleeping in the street.
Thursday, March 3, 2016
Ben Carson may be dropping out of the Republican primary; at least all signs seem to point in that direction. But while he is still officially a candidate (despite not appearing at tonight’s debate), it seemed only fair (and interesting) to look at his views on eminent domain.
Recall from Super Tuesday we saw that real estate developer Donald Trump was, unsurprisingly, a big advocate of eminent domain. After all, he’s used it a number of times in his own development projects.
Carson, on the other hand, has never had to utilize eminent domain during his medical career; it’s not like after calling out for a scalpel, a surgeon is going to ask for the Fifth Amendment to be handed to him. Carson does not have the same personal experience with eminent domain as someone like Donald Trump, and for that reason--and probably for a bevy of other reasons--Carson has a different perspective on the topic.
In February of this year, Carson entered himself into a very local and somewhat unusual eminent domain issue in Mount Pleasant, South Carolina. Mount Pleasant is home to Shem Creek. I have never visited Shem Creek, but allegedly it is a modestly developed area, emphasis on the modest part. As one newspaper article described it, “[i]t’s a place for people to connect with nature, a monument to Lowcountry shrimping past and present, and a spot to grab a meal or a drink and watch the sunset.”
Enter four members of the Mount Pleasant Town Council elected or re-elected in November 2015. These members of the Town Council allegedly ran (and won) on what appears to be anti-development platforms, or at least platforms that were not in favor of substantial development of the Shem Creek area.
Here’s where eminent domain comes up. In early 2016, a parking garage and office building were being built along Shem Creek to the dismay of the newly elected and reelected members of the Town Council, as well as a vocal group of Mount Pleasant citizens. It was reported that the Town Council was contemplating using eminent domain to stop the building of the parking garage and office building. According to at least one current proprietor in the area, one plan thought up by the anti-development members of the Town Council was to use eminent domain to take property along Shem Creek, remove the businesses currently located there, and build a walkway to the water. This notion to use eminent domain to take operating businesses and turn the property into walkways was actually brought up at a Town Council meeting by a member of the Town Council in December 2015 with regards to other property near Shem Creek.
So what does any of this have to do with Carson, the only GOP candidate who briefly bested Donald Trump and was in first place during the past few months? (Remember those two, maybe three, weeks in November when Carson was in the #1 spot? Remember?) In February 2016, as the brouhaha regarding the potential use of eminent domain to claim property along Shem Creek was reaching a crescendo, Ben Carson came to the area to campaign for the South Carolina primary. In early primary states, local issues matter, so Carson took a meeting about the development of Shem Creek. After Carson met with the Shem Creek Development Group LLC (a group who, as its name implies, is in favor of developing Shem Creek and not in favor of the Town Council using eminent domain to hinder business development), Carson said the following:
“I’m very pleased whenever I see Americans citizens who are activated to protect all of our rights. This is a situation where we have a city council who wants to come in and use something as arbitrary as eminent domain to displace established businesses, and that would probably have a devastating effect.”
Based on his response, it seems Carson is anti-eminent domain, at least in as much as use of eminent domain would stifle business development. Unfortunately Dr. Carson did not pontificate much more on the subject, and given that he is likely to soon announce he is dropping out of the presidential race, it is unlikely we will hear much more from him on this topic. But still, it remains interesting how the Fifth Amendment has wiggled its way into this campaign, sometimes in the most unusual places.
Next up, a match up of Cruz v. Rubio—who is against eminent domain more? Tune in next week to find out!
Dave Fagundes (Houston) has posted Buying Happiness: Property, Acquisition, & Subjective Well-Being on SSRN. Here's the abstract:
Acquiring property is a central part of the modern American vision of the good life. The assumption that accruing more land or chattels will make us better off is so central to the contemporary preoccupation with acquisition that it typically goes without saying. Yet an increasing body of evidence from psychologists and economists who study hedonics — the science of happiness — yields the surprising conclusion that getting and having property does not actually increase our subjective well-being. In fact, it might even decrease it. While scholars have integrated the insights of hedonics into other areas of law, no scholarship has yet done so with respect to property. This Article maps this novel territory in three steps. In Part I, it summarizes recent findings on the highly conflicted effect on subjective well-being of the acquisition of both land and chattels. In Part II, it explores the implications of these findings for four leading normative theories of property law, showing that in different ways, the evidence produced by happiness studies undermines the core empirical propositions on which these theories rest. Part II also explores the potential of subjective well-being as a framework for assessing the optimal regulation of ownership. Finally, Part III investigates how looking at property through the lens of happiness can help us see this ancient body of law in a new light. Evidence from happiness studies casts doubt on some policies (e.g., state promotion of homeownership), while suggesting the appeal of others (e.g., tax incentives and disincentives designed to nudge acquisition in the direction of greater subjective well-being). Happiness analysis also suggests promising new insights about related aspects of property, including law’s attempts to prevent dispossession, the proper allocation of public versus private land, and the nascent sharing economy. This Article concludes by showing why these findings actually tell an optimistic, if nonobvious, story about the nature and future of property.
Wednesday, March 2, 2016
(University of Idaho students discussing a culvert on a Boulder Creek tributary scheduled to be replaced to improve salmonid habitat.)
A common complaint about legal education is a perceived lack of “practical” experience. Law schools across the country, including at the University of Idaho, have addressed this need by increasing opportunities for students to participate in live-client experiences through clinics or internships, and by incorporating practical exercises throughout the substantive curriculum. But although students now have the opportunity to draft real legal documents, appear in court, and communicate with clients, many students are still missing exposure to the “things” of law—the people and places that law affects and effects.
The study of law is, of course, notoriously dense and difficult, with much in the way of words and little in the way of images, places, or dirt under the fingernails. This is a serious problem, as should be particularly obvious when we are studying the law of natural resources, land use, environmental protection, and real places and real people. We cannot understand conflict, and cannot propose useful solutions, until we know—intimately—the people and landscapes where those conflicts arise.
In August 2014, during my first attempt at offering a field course in natural resources law at the University of Idaho’s McCall Field Campus, we spent all of one afternoon driving gravel roads around what would become the Lost Creek-Boulder Creek Landscape Restoration Project on the Payette National Forest. We were looking at places that would be burned, roads that would be closed, and culverts that would be replaced to allow for steelhead and bull trout passage. I also tried to take advantage of our time in the forest to teach my students to identify all of the trees in the area, and perhaps more important—to me at least—to care about what those trees are. This is something of a Long-family tradition that I have taken from my father and am trying to impose on my own sons. My sons seem to enjoy it, but on the Payette, I got the sense that while a few of the students seemed to want to know the trees, most were bored—or worse, annoyed—by my constant pestering.
I finally felt compelled to pull our van over in a large clearing, at the high point of that day’s drive. The spot is known as Railroad Saddle, and is the hydrologic divide between Boulder Creek to the north and Lost Creek to the south. It is a broad, open, and relatively flat divide, offering few clues as to its legal and ecological significance.
But it is significant. Boulder Creek flows north and east about twenty miles to the Little Salmon River, which continues north until it meets the main stem of the Salmon River at the small town of Riggins, Idaho. At this point, the Salmon has mostly completed its unencumbered journey across Idaho. From Riggins, it continues north and then west before finally joining with the Snake River on the Idaho-Oregon border.
Precipitation falling south of Railroad Saddle follows a different path, flowing into the East Fork of Lost Creek. The East Fork flows about eight miles before joining with Lost Creek itself, a mile or so upstream of the Lost Valley Reservoir. After pausing a bit in the reservoir—filled with algae, surrounded by cows and overgrazed riparian areas, off-road vehicle trails, and paradoxically, a colony of the threatened Northern Idaho Ground Squirrel—Lost Creek continues on another ten miles to the West Fork of the Weiser River. This becomes the Weiser River, and then after flowing southwest for quite a while, eventually also meets the Snake River at the town of Weiser, Idaho, also on the Idaho-Oregon border.
Although both Boulder Creek and Lost Creek are part of the larger Snake River watershed, they differ in meaningful ways. The divide is open and flat enough that you can look each direction and see how the vegetative communities change, from the thicker, wetter, Douglas fir dominated forests in the mostly north-facing Boulder Creek drainage to the more open, drier, Ponderosa Pine forests on Lost Creek. Because we had spent the morning with the New Meadows District Ranger, we also knew that as we traveled from Boulder Creek into Lost Creek, we’d start seeing more cows and more evidence of unauthorized off-road vehicle use.
But it is what we cannot see that might matter more, particularly from a legal perspective. Boulder Creek is part of the Salmon River watershed, famous for containing the largest area of contiguous wilderness in the continental United States—the Frank Church River of No Return Wilderness. Although the Frank Church gets the most press, the Salmon River watershed is also home to the Gospel Hump Wilderness and millions of acres of National Forest. It is a fairly pristine watershed, as they go in the contemporary West, and between Railroad Saddle and the confluence of the Salmon and Snake Rivers, there are no dams, just as there are no dams on the entire Salmon River itself.
The Weiser River, and thus Lost Creek that flows into it, are farther upstream in the Snake River watershed. Lost Creek has its own dam, just a few miles from where we stand on Railroad Divide. But much more significant, immediately after flowing into the Snake River, the Weiser River water enters Brownlee Reservoir and the slack water of Brownlee Dam. Below Brownlee, it becomes the slack water of Oxbow Dam, and then the slack water of Hells Canyon Dam, a 330-feet tall concrete monolith standing at the head of Hells Canyon.
Together, these three dams—the Hells Canyon Complex, owned and operated by Idaho Power—are a complete barrier to fish passage, and the thousands of miles of streams that were historic spawning grounds for migrating salmon and steelhead.
This is what we cannot see, standing on Railroad Divide. Despite having to endure the eight dams on the Columbia and Lower Snake rivers on their journeys to and from the Pacific, salmon and steelhead continue to survive, and on occasion thrive, in the watershed to our north. But there are no migrating salmon or steelhead in the watershed just a few feet to our south.
The law means two very different things in these few feet of space we occupy on Railroad Divide, some of us standing in salmon habitat, some of us not. And we can see those differences on the ground, and in the proposals for landscape restoration we discussed in the morning and are visiting in the afternoon. The hours we spent seeking out culverts—both old and new—would have been largely meaningless just a hundred yards to our south. And the cows and off-road vehicles we will soon see would be much more meaningful—as significant as they already are—just a hundred yards to our north.
All of these subtle, meaningful things come together in this one place, as law on the ground. During this day, we have seen human uses on the landscape: sheep and old timber harvests and camping areas complete with 1950s pit toilets. We have seen the different trees, the different slopes and mountains and streams. And we have talked and thought and seen the effects of law. And so concluding my Railroad Divide soliloquy, I tell my students that it is my belief—and the raison d’être of the class—that you can only understand how law works, and why, when you understand the natural history of a place, when you know the people who live there and what they care about, and when you have walked the landscape and felt the rocks beneath your feet, waded the streams, and maybe crawled through the culverts.
And when you know the trees.
Railroad Divide, as a place, demonstrates how understanding specific laws, or particular legal or policy decisions, requires moving beyond text and into the forests. Understanding place in a broader sense is at once as simple as thinking about how water flows across the ground, and as complex as all of the constellations of legal, cultural, social, and physical landscapes through which that water might pass. An intricate understanding of people and landscapes, and of the unique cultural and social histories they developed on those landscapes, similarly requires exploring the streams and forests, meeting the people, and thinking about how legal, social, and cultural relationships work themselves out on the ground.
Paul Babie (Adelaide) has posted Ukraine's Transition from Soviet to Post-Soviet Law: Property as a Lesson in Failed Regulation on SSRN. Here's the abstract:
This article traces the parallel developments of the Ukrainian transition from Soviet to post-Soviet law and from state to private property. To do this, the article is divided into four parts. The first examines the transition of the Ukrainian legal system from pre-Soviet to post-Soviet law. The second traces the microcosm of that transition as it occurred through the failed adoption of private property introduced in the law of post-Soviet Ukraine. The third demonstrates that the flawed approach by which private property has been adopted, with little if any real and effective regulation in post-independence Ukraine, has produced negative consequences for the Ukrainian people. The final part concludes.
Larissa Katz (Toronto) has posted Ownership and Social Solidarity (Legal Theory) on SSRN. Here's the abstract:
The article considers what Kant’s theory of property contributes to contemporary property theory. I argue that by drawing our attention to a new set of questions concerning the basis of the state’s authority, a Kantian approach provides an important alternative to the dominant instrumentalist approach to the moral problems that private ownership introduces (specifically, the problems of poverty and dependence). I consider the extent to which the Kantian framework is normative appealing. After raising a number of objections to the Kantian division of labor in response to the problem of material dependence, I suggest a way to restore some harmony between the rights of owners and the interests of others within a Kantian framework.
Tuesday, March 1, 2016
As promised, today we begin looking at presidential contenders and their statements regarding property rights. Lots of media coverage today is focused on the GOP battle to—depending on your political preferences—either crown Trump the party nominee or stop him from putting an albatross around the Republican Party’s neck. So today we’ll focus on the man everyone else is focusing on today, Donald J. Trump, otherwise known as Mr. Eminent Domain.
“I fully understand the conservative approach, but I don’t think it was explained to most conservatives,” Trump said in an interview with Fox News’s Bret Baier that aired yesterday. “Nobody knows this better than I do, because I’ve built a lot of buildings in Manhattan and you’ll have twelve sites and you’ll get eleven and you’ll have the one holdout, and you end up building around them. I know it better than anybody.”
Trump’s position on eminent domain has not evolved over time like some of his other positions, by his own admission, have. In 1998, one of Trump’s holdings, Trump Plaza Associates, was a plaintiff in a lawsuit in New Jersey regarding eminent domain. In Casino Reinvestment Development Authority v. Banin—which occurred before Kelo—Trump and the Casino Reinvestment Development Authority sought to take private property in Atlantic City to build a hotel and casino. Being before Kelo, Trump lost and the private landowners got to stay. (As a side note, the Banin case demonstrates the age-old rule that everything has a price. Three landowners stood up to Trump, turning down the state’s offer to take their property for $700,000. Eight years after the litigation ended, the landowners did sell the property to Trump for an alleged $2,000,000.)
Ilya Somin (George Mason) had an interesting article in the Washington Post regarding Trump’s view and history of eminent domain. Suffice it to say that Trump believed in eminent domain twenty years ago and he believes in it today.
Not all of the candidates were as excited about Kelo as the Donald. Assuming there are still five GOPers and two Dems after tonight’s results come in, we’ll continue this post on Friday with a look at what other presidential candidates have said on the topic. Until then, everyone can make the Fifth Amendment great again. Or keep it great, which I guess is more in line with Trump’s position.
The Supreme Court denied a writ of cert in the case of Taylor v. Yee yesterday, but Justice Alito put out an interesting concurrence.
The question in the case was whether California law that allows for certain assets to escheat to the State if the assets are left dormant for three years was constitutional under the Due Process Clause. The concern was whether the owners of the property were provided sufficient notice before the property escheated to the State.
The Supreme Court denied writs, but Justice Alito wrote the following concurrence:
In recent years, States have shortened the periods during which property must lie dormant before being labeled abandoned and subject to seizure. See Bower, Note, Inequitable Escheat?: Reflecting on Unclaimed Property Law and the Supreme Court’s Interstate Escheat Framework,74 Ohio St. L. J. 515, 529, n. 81 (2013) (noting that New York, Michigan, Indiana, New Jersey, and Arizona all recently shortened their dormancy periods from as long as15 years to merely 3). And some States still rely on decidedly old-fashioned methods that are unlikely to be effective. See, e.g., Del. Code, Tit. 12, §1172 (2007 and Cum. Supp. 2014) (relying only on blanket newspaper notification).
This trend—combining shortened escheat periods with minimal notification procedures—raises important due process concerns. As advances in technology make it easier and easier to identify and locate property owners, many States appear to be doing less and less to meet their constitutional obligation to provide adequate notice before escheating private property. Cash-strapped States undoubtedly have a real interest in taking advantage of truly abandoned property to shore up state budgets. But they also have an obligation to return property when its owner can be located. To do that, States must employ notification procedures designed to provide the pre-escheat notice the Constitution requires.
The convoluted history of this case makes it a poor vehicle for reviewing the important question it presents, and therefore I concur in the denial of review. But the constitutionality of current state escheat laws is a question that may merit review in a future case.
Stay tuned to see what happens when the Court finally does examine this issue!
Sarah Morath (Akron) has posted A Park for Everyone: The National Park Service in Urban America (National Resources Journal) on SSRN. Here's the abstract:
This article examines the National Park Service's past and future presence in urban America. Scholars, conservationists, and park administrators agree that urban park spaces and programming must be a focus of the National Park Service in its second century. This article explains the motivations behind the National Park Service's first urban parks and describes the National Park Service's recent emphasis on urban areas. From designations such as Pullman Park in Chicago, to initiatives like the Urban Agenda, the National Park Service is poised to engage urban America and create a new generation of park visitors.
Stephen Miller (Idaho) has posted Decentralized, Disruptive, and On Demand: How the Sharing Economy Will Re-Shape Local Government (Ohio State Law Journal) on SSRN. Here's the abstract:
Sunday, February 28, 2016
Mortgage servicers are not known to be the easiest folks to work with--particularly during the height of the housing crisis. Stories abound of situations where distressed homeowners found it difficult if not impossible to actually get someone on the phone who actually had the power to authorize a loan work-out or forbearance, and others where borrowers were outright harassed by their servicers.
Last April, Forbes reported that a group of California housing advocates argued that, despite the state's 2012 Homeowners' Bill of Rights, many widowed homeowners found it impossible to deal with their home loan's mortgage servicer after their spouse's death:
Despite the strong protections enacted under HBOR, family members who want to speak with their mortgage servicers after the death of a loved one are still hitting a brick wall. In some cases, a family member may be on the title to the home, but aren’t on the mortgage, and servicers refuse to speak to them and instead insist on speaking with the deceased borrower who was listed on the mortgage. As a result, homeowners are facing red-tape, mixed messages, unreasonable obstacles, and unnecessary foreclosures.
Mortgage servicers have argued that protections for homeowners created by HBOR do not extend to widowed homeowners and other surviving heirs who have a legal interest in the home but who aren’t listed on a mortgage. Even in cases where a servicer will speak with a surviving family member, homeowners can be caught in an endless cycle if they try to seek a loan modification as a result of their reduced income after the death of a loved one. Servicers won’t consider them for a loan modification until they assume the mortgage. But, the servicers won’t let them assume the mortgage unless they demonstrate that they can afford it. As a result, mortgage payments are missed or they are not accepted by the servicer, fees rack up, and servicers push grieving family members into foreclosure.
Now it looks like these housing advocates may be making some headway by amending the California Homeowners' Bill of Rights to add a survivor provision. In doing so, it would force mortgage servicers to communicate and deal directly with widowed/non-borrower homeowners. The HousingWire reports:
A new bill introduced in the California State Senate would establish a Homeowner Survivor Bill of Rights, which is designed to help widowed spouses and children stay in their homes after the primary mortgage holder passes away.
The bill closes a loophole in California law that fails to provide surviving spouses and children important protections against foreclosure that are available to other homeowners, the offices of California State Senators Mark Leno and Cathleen Galgiani said this week. The new bill, Senate Bill 1150, “clarifies the responsibilities” of a mortgage lender when a borrower dies and passes the home along to a survivor who wishes to assume the home loan, the Senators said.
According to the Senators’ statement, the legislation, if passed, would ensure that heirs receive “accurate information” about loan assumption and foreclosure prevention programs. The bill would also give survivors a single point of contact with the lender and the ability to simultaneously apply for loan assumption and modification.
The bill will be heard this spring in committee. It will be interesting to see where this goes. A copy of the bill can be viewed here. There are a number of consumer/homeowner protections in the legislation (delay periods, notice provisions--required to be in so less than five different languages--access to housing counseling resources, among others). The thing that immediately comes to mind, however, is whether this will actually help these widowed homeowners avoid foreclosure if they cannot meet the lender's underwriting criteria for a new loan. Assumedly a lender would rather make a new loan than foreclose on the property, but might Dodd-Frank's new underwriting requirements tie their hands if the surviving spouse has a weak financial position? While the bill might certainly help open lines of communication, it might only delay the enviable (at least in certain cases). Time will tell.
Wednesday, February 24, 2016
(Wyoming's historic Crookston Ranch -- photo courtesy the Bureau of Land Management)
The U.S. Supreme Court routinely characterizes the right to exclude as "one of the most essential sticks in the bundle of rights that are commonly characterized as property." Many law students first consider the meaning of the right to exclude in Jacque v. Steenberg Homes. The question in that case was whether punitive damages would be allowed in a trespass case where there were no actual damages. The Wisconsin Supreme Court determined that a "a right is hollow if the legal system provides insufficient means to protect it," and allowed for punitive damages.
This same question arose recently in Wyoming, in the civil trespass action Frank Ranches v. Jonathan Ratner. Mr. Ratner works for the Western Watersheds Project as the Director for Wyoming, Utah, and Colorado. One of WWP's broader goals is to eliminate ranching on public lands. They pursue that goal, in part, by documenting water quality violations for use in enforcement actions. Mr. Ratner was taking water samples when he allegedly trespassed on various ranch properties. It was this case that led, in part at least, to Wyoming's infamous "data trespass" law, passed in early 2015. That law, currently being challenged by the Western Watersheds Project, criminalizes data collection on "open lands" without express permission. The law does not define "open lands," raising fears that it would be used against data collectors on public lands as well as private.
In the civil action against Mr. Ratner, the ranchers did not claim any damages--Mr. Ratner was using existing roads on the ranches to access streams. They did claim punitive damages. But earlier this month, Judge Norman Young of Wyoming's 9th Judicial District determined that punitive damages would not be available to the ranchers. The trespass action itself would continue to trial however.
In some ways, the Wyoming case mirrors Jacque v. Steenberg homes. In neither case did the plaintiffs claim more than nominal damages. And in both cases, the district courts determined that settled law prohibited punitive damages where only nominal damages existed. But the obvious similarities end there. In Jacque v. Steenberg homes, the trespasser had been told specifically and publicly not to cross the Jacque's land; another option was somewhat readily available. In the Frank Ranches case, Mr. Ratner argues that he used open, "public" roads that happened to cross private lands, and that he was never specifically informed not to use them. In fact, one of Mr. Ratner's defenses appears to be based on a "permissive use" concept, i.e., that there was implied permission to use the private lands as he did.
The most interesting part of this conflict is not the punitive damages question, but rather the broader questions of when, where, and how citizen scientists and activists can record or document violations of environmental or other laws. But we'll have to wait a bit longer to watch that issue work itself out.
In the Frank Ranches case, Mr. Ratner and WWP are represented by Associate Professor Justin Pidot of the University of Denver Sturm College of Law. The Wyoming Ranchers are represented by Karen Budd-Falen, who should be familiar to anyone interested in public lands law and management.
Amnon Lehavi (ICH - Radzyner) has posted Residential Communities in a Heterogeneous Society: The Case of Israel (Book Chapter) on SSRN. Here's the abstract:
Israel presents an intriguing case study for exploring the role of communities and private forms of spatial organization in urban governance. Unlike most western countries, the overwhelming majority of land in Israel is publicly-owned, meaning that the validation of community exclusionary practices would regularly require affirmative governmental backing. The evolution of urban and rural forms of settlement since the early days of Zionism shows how some types of private associations enjoyed such validation due to political clout. Contemporary Israel is much more heterogeneous and fragmented both ethnically and ideologically. This poses new challenges for designing the regulatory and legal framework of residential communities.
Tuesday, February 23, 2016
Like the law of finders, adverse possession is fun to teach for many reasons. Students easily grasp the notion of someone squatting on property and can deduce the equities in the situations. Everyone will recall Tom Merrill’s (Columbia) oft-cited article, Property Rules, Liability Rules, and Adverse Possession, describing the theories behind adverse possession. With a little prodding, students can usually come up with many of those rationales.
Adverse possession is also fun because it is easy to bring in lots of modern day stories of adverse possessors. These stories are all over the news and help students connect in class concepts with real world events, sometimes even in their own back yard. Different news stories evoke different sympathies for the adverse possessor/squatter or the true owners.
For those of you looking for current stories, here are a handful of news articles from just the past three months for you to consider.
Discussing squatting or adversely possessing real property also allows students to think about squatting on other forms of property, such as personal property or, more trendy for the millennial generation, virtual property. Cybersquatting is certainly something that 20-somethings will quickly grasp and apply to their everyday lives. And this allows for the ever-fun discussion of cybersquatting in presidential politics, which there has been no shortage of this campaign season!
With that in mind, next up in my blogging is a look at what the presidential candidates have said regarding property laws, so stay tuned and see what each of the remaining candidates has said (at least publicly) about different aspects of property law.