Friday, February 10, 2017
Resistance is also the theme of Sarah Keenan's (Birbeck, University of London) book, Property Governance Through Resistance: Subversive Property Explores Progressive Potential for Property Outsiders to Re-Create Spaces of Belonging and Propriety. Sarah's book "explores the relationship between space, subjectivity, and property in order to invert conventional socio-legal understandings of property." As Lorna Fox O'Mahony (University of Essex) wrote, Property Governance Through Resistance "offers an insightful analysis into how property rules prevent marginalised or outsider groups from developing a sense of belonging in places that are dominated by, and governed through, an insider norm."
So if you are looking for more resistance reading, check out Sarah's book to see how property laws may be re-conceived to help marginalized communities.
Saturday, February 4, 2017
The #PropertySchmooze is coming to an end with the keynote speaker, Lee Fennell (Chicago), who is presenting her work, Searching for Fair Housing.
Lee begins her paper by bringing up an asymmetry in housing: racial discrimination against homeseekers (which is illegal) versus racial discrimination by homeseekers (which is presumed to be "perfectly legal"). The common rationales for why discrimination by homeseekers is allowed is two-fold: (1) homeseekers do not have a big enough impact on the market and (2) the law should not impact homeseekers' decision making. Lee questions whether these are vaid rationales and whether the law has some role in curbing discrimination by homeseekers
As Lee notes, sorting the housing stock by race has happened for a long time. Individuals have long asked friends, neighbors, real estate agents, etc., what neighborhood is the best to live in, and race may come up in that conversation. Now there are websites that allow you to easily see what the racial make up is of any zip code, so discriminatory information is even more readily available.
Restricting someone from searching for houses based on race could be seen as restricting the homeseeker's autonomy. But, as Lee points out, homeseekers' autonomy is alreaday limited in part because home owners cannot choose their neighbors. We know from Shelley v. Kraemer, restrictive covenants cannot discriminate against individuals based on race, so a home owner cannot restrict who his neighbor is based on race, thus limiting the home owner's autonomy.
Lee then discusses the gap between the right to be free from discrimination and the duty not to discriminate. Lee calls the gap used by homeseekers the "search gap," referring to the discrimination largely of white individuals against black individuals when searching for houses. She cites numerous studies that demonstrate white individuals rank neighborhoods with high numbers of black home owners lower than white individuals rank neighborhoods with mostly white home owners.
So what to do? Section 1982 of the Civil Rights Act actually covers this to some extent. The section says "All citizens of the United States shall have the same right, in every State and Territoy, as enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." Section 1982 might be applied to homeseekers because everyone has the right to seel property free from discrimination. Lee also suggests that we could impose liability for ads and assisted searches under the Fair Housing Act. Or we could use disparate impact as a mechanism for taking up the slack where we cannot, or will not, reach biased searches. And Lee suggests that we could affirmaively further fair housing in the search domain.
And with that, the #PropertySchmoozes comes to a close. Thanks Texas A&M, and specificlly Lisa Alexander and Thomas Mitchell, for hosting this great event!
Julie Forrester (SMU) began by sharing her work on real estate-related receivables, comparing the approach to using such rights as collateral under the American and Japanese systems. She noted that there is a legal disconnect between the transfer of a lender's right to payments under a mortgage note and the transfer of a landlord's right to payments under a real estate lease. Julie noted that some of the problems likely come from the fact that personal and real property are treated differently in the US. In the mortgage context, the note representing the loan is governed by the UCC while the mortgage on the real estate is governed by real property law. However in the real estate lease context, the lease is governed by real property law but the rents, once severed, are considered to be personal property. She notes that because Japan is a civil law jurisdiction where personal (movable) and real (immovable) property are treated under similar rules, Japanese property law has the potential to serve as a framework to reconcile some of the discrepancies in treatment of real estate-related receveiables underAmerican law.
Next, Sally Richardson (Tulane) gave a presented titled Ownership, Equity, and Development: A Comparative Taxonomy of Property Regimes, which examines the ways different legal systems approach competing rights in the same property. She began by asserting that in today’s market few, if any, enjoy sole and complete ownership of property. Whether through zoning, concurrent or future interests, restrictive covenants, or security rights, private property is rife with intra-party tensions due to these mixed, overlapping, and shared interests. Sally further argues that the law variously favors certain interest holders in the same property over others, all in accordance with specific policy choices about the best use of the property. To explore these different approaches, she studies the doctrines of servitudes, co-ownership, and life estates under four legal systems: under the English common law, the American common law, the French civil law, and the German civil law. Sally notes that by studying these concepts and the way the different systems balance the rights of multiple parties in the same property, one gains an insight into how the systems value property. Moreover, such an understanding will better equip lawmakers, scholars, and judges to analyze which aspects of another jurisdiction’s property law could be effectively incorporated into their own legal regime.
Great work, Sally and Julie!
Day 2 of the #PropertySchmooze has commenced, so let's get to blogging!
First up is Vanessa Casado Perez (Texas A&M) who is talking about something many of us deal with on a daily basis: parking! Parking is a huge issue in New Orleans, so I'm already excited about her paper Privatizing Public Parking: Unsharing Public Parking Spaces. As Vanessa tells us, in big cities, 106 days of your life are spent looking for parking and 30% of traffic is created by individuals looking for parking spaces. High demand plus scarce resources leads many cities to adopt a market solution. For example, there is the privatization of parking meters in Chicago. Or there is the app some cities use, Monkey Parking, which allows a person leaving a parking spot to sell the right to use the parking spot to another driver. Or there are variable pricing plans used in some cities, like San Francisco, where parking rates fluctate depending on demand. Vanessa is concerned about all of the market solutions because the public parking spots should, she argues, be held in public trust for the benefit of all, but these pricing mechanisms inherently weed a lot of people out. Further, Vanessa has concerns about private individuals profiting from using public parking spots. Thus, Vanessa's paper examines different frameworks we could use to solve the parking problem that abounds in many cities.
The second paper of the day is by Dave Fagundes (University of Houston) who is discussing Sharing, Property, and Happiness. Dave's paper comes from his interest in property skepticism (i.e. the idea that people are doing things with their property that we would not predict from the market) and his interest in current studies on people's happiness. By happiness, Dave is referring to one's subjective well being, measured by moment-to-moment affect in real time. With this measure of happiness, Dave then wants to know how can property make us happier, i.e. how can property give us greater moment-to-moment affects? Dave notes that it has been argued that there are three ways property makes us happier: property makes us happier when we give it to charity, when we use it as a site for community interaction, and sometimes, when we have less of it (see the minimalist movement). Dave then uses happiness to look at different areas of the law related to property and asks whether we are regulating things in the most optimal manner. For example, Dave uses happiness as a lens to look at the sharing economy, showing how the commercial exchanges that take place in the sharing economy might make us happier. Similarly he uses the happiness framework to examine our charitable donation laws, asking whether our tax deduction rules for charitable donations really optimizes happiness. Finally, Dave takes the minimalist movement, showing why everyone might be happier if they decreased their property levels, and then asks how can property law better facilitate the minimalist movement.
Third is Asmara Tekle (Thurgood Marshal). Asmara is presenting her paper Roll On, Cyclist: The Idaho Rule, Traffic Law, and the Quest to Incentivize Urban Cycling. The thought piece looks at how traffic laws can incentivize cycling as a mode of transportation in urban environments. The paper's thesis is that rules like the Idaho Rule, which legitimates the common cycling practice of treating stop signs as yield signs, have no negative impact on public safety while having a positive effect on encouraging people to cycle. Though the Idaho Rule has seemingly positive impacts, it has been adopted in only two states (Idaho, obviously, and Colorado), and many other states have considered adopting the Idaho Rule but have ultimately rejected it. Asmara's paper looks at the world of social norms for cycling and vehicles, as well as theories of vehicular integration between cyclists and cars and vehicular segregation, to explain why the Idaho Rule has not been adopted.
Last for the first panel is Kellen Zale (University of Houston). Kellen's talk is on her early work in progress, The Tenant's Right to Share, which seeks to develop a discussion on tenants' right to share the property they are renting and landlord consent provisions in residential leases. Traditional residential leases have relatively limited rights to share their propety without the written permission of the landlord, be it sharing through a sublease, sharing with a short-term visitor, or sharing through transferring the lease to another person. Landlords can deny permission unreasonably or arbitrarily. This rule for residential leases differs from the growing minority rule regarding commercial leases. In a growing minority of states, commercial landlords must have a reasonable reason to deny the commercial renter from sharing the property. Kellen's question is whether in the residential context we should reexamine our default rules regarding a landlord's ability to restrict a tenant's right to share.
Friday, February 3, 2017
First up is Stephen Clowney (Arkansas and former blogger here at the #PropertyLawProfBlog) who discussed his project titled Should Law Care About Rural Places? In his talk, he explored the decline of the rural areas of America, juxtaposing it with the economic factors that increase the prosperity of cities. These factors include labor pooling, the easy and cheaper transport of goods, and the flow of ideas. Steve then asks whether it would be possible to build a list of factors that might similarly justify a greater emphasis on the rural. He notes that three main points that have emerged in the literature for preservation of the rural include culturalism, national security, and economic growth. The first point is the notion that there is a cultural aspect to rural areas that justifies special preservation. However, Steve challenges this by noting that poor education levels and weak health indicators pervade the lives of those who live in rural areas. A second argument in favor of the rural is national security, under the theory that a country should be able to produce its own food during periods of war. Steve responds to this by stating that food independence might be similarly achieved through automation and could be done in more urban areas. Last is the argument that rural areas produce significant economic benefits for the country. However, Steve notes that people have higher debt loads in rural areas and most of the poorest counties in America are rural. After rejecting these prevailing arguments, he asserts that a better justification for the rural is that economic growth in rural areas has a more significant impact on those living in poverty than economic growth in urban areas. In order to help realize these benefits, he argues that there is a need to break up the size of the many megafarms that populate the rural landscape so that they can be broken up in smaller farms that would generate a larger middle class in rural areas. To do this he asserts that Congress should return to a more aggressive estate tax system that prevents such large transfers of wealth and subsequent consolidation.
Closing out the panel was Thomas Mitchell (Texas A&M) who spoke about his book chapter project on the different strategies that have been used over time to exploit African Americans in their aspirations to become homeowners or maintain homeownership. He specifically explores installment land contracts where black would-be homeowners, who were unable to obtain conventional financing, would enter into agreements with unscrupulous home sellers who would “lease to own” the property at an outrageous price and then, upon a missed payment, evict the individual and keep the profit. Another strategy was through the over-assessments of property taxes for African American homeowners, all in an effort to break up these communities and drive out black owners. Lastly, he spoke about the steering of black borrowers toward expensive financial products, including adjustable rate mortgages and loans with numerous fees. Thomas looks to use this work to explore the deeper phenomenon behind these practices in hopes of discerning an overarching way to work through these systemic issues on a larger scale.
Great panels and a very lively discussion. Time for dinner! See you tomorrow!
Panel three is up at the #PropertySchmooze! Time to talk adverse possession, mortgages, and the public trust doctrine.
John Lovett (Loyola) is the lead batter for panel three discussing his work, What We Talk About When We Talk About Adverse Possession: Part 1 (1881-1985). John's work looks at the history of adverse possession in the United States. In looking at the scholarship on adverse possession through the centuries, John finds there are five themes scholars have focused on: (1) what was adverse possession fundamentally--was it a statute of limitations or an affirmative means of acquiring property?, (2) what elements should be required for adverse possession?, (3) what was the social, legal, and institutional purpose of the doctrine, (4) how American adverse possesion law developed to be uniquely American, and (5) an attempt to influence courts analyzing adverse possession cases. With those themes in mind, John walked through the works of Holmes, Pollock, Maitland, Ballantine, Bordwell, Fuller, Walsh, Stoebuck, Callahan, Helmholz, and Cunningham, discussing each scholar's perspective on adverse possession. John focused on the scholarly debate on the doctrine, analyzing what each scholar said correctly and, in some cases, incorrectly. In doing so, John provided a historical perpsective on adverse possession, clearing the path for his next piece on modern adverse possession law.
Batting second is Chris Odinet (Southern), one of my co-bloggers here on #PropertyProfLawBlog. Chris is talking about his book project, Foreclosed: American Homeownership and the Mortgage Middlemen. Chris' book analyzes the relatively unregulated world of mortgage field services and their agents. Mortgage servicers (or who Chris calls the "mortgage middlemen") are the people who manage your mortgage on a day-to-day basis and, importanty for Chris' project, begin foreclosure proceedings if need be. Chris highlights the abuses that have occurred with mortgage servicers. He is particularly interested in the "break-in foreclosure" abuse, where a mortgage field service agent breaks into a mortgagee's home before any default takes place, turns off the utilities, clears out the home, and padlock the door. The purpose of the break-in foreclosure is to clear the property so it can be called abandoned and foreclosed on. Chris' book sheds light on these problems by sharing stories of homeowners whose rights have been impared by mortgage middlemen. He then proposes regulations for mortgage middlemen so as to tame the rogue industy practices.
Last batter for panel three is Erin Ryan (Florida State) who is talking about The Public Trust Doctrine, Private Water Allocation, and Mono Lake: The Historic Saga of National Audubon Society v. Superior Ct. The case Erin is focused on concerns the public trust doctrine and Mono Lake, where the public trust doctrine and the prior appropriation doctrine butted heads. Mono Lake, which is located in central California near the California/Nevada border, was used to provide water to Los Angeles (yes--LA, which is about 350 miles south of Mono Lake). As one might expect, LA overused the lake, drying it up, injuring the brine shrimp that lived in the lake, thus killing the birds that ate the shrimp that lived in the lake. This all led to litigation that pitted the public trust doctrine against the prior appropriation doctrine. Ultimately the public trust doctrine won and the Mono Lake defenders and LA reached a copromise, so there was a happy ending for environmentalists, including for Erin who, as she told us, worked as a "grunt-level" range with the U.S. Forest Service at--you guessed it--Mono Lake.
First up is none other than the hostess of the Schmooze herself, Lisa Alexander (Texas A&M), talking about her paper, Bringing Home the Right to Housing. First, Lisa used her review of Matthew Desmond’s book, Evicted, as a springboard by explaining how his work provides a basis for highlighting how important the right to housing is in today’s post-crisis American economy. Using this observation, her paper asserts that our conception of basic human rights/needs and our conception of housing needs are greatly out of balance in the political discourse. Relatedly, Lisa noted the mismatch between the supply and demand of housing, pointing out that homeownership is at its lowest rate due to the high cost of housing and that affordable rental units chronically elude most Americans. Moreover, relative to the need for housing, subsidies to these individuals (vouchers, public housing, federal grants) are quite small and inadequate. Because of the diminished role that the federal government has been playing (and will likely continue in this fashion) in meeting the housing need, much of the responsibility will fall to cities and local governments. To that end, she asserts in this project that the right to housing, although not a legal right in the US, can serve as a useful normative framework for localities to use in devising plans for new housing arrangements that more effectively balance the rights of owners and non-owners. Moreover, Lisa explained that when local governments use their powers to legitimate arrangements that mimic the right to housing, they are realizing the benefits of the right to housing, even in the absence of it being an actual right. Lastly, she hopes that once local governments engage in this democratic experimentalism, that federal decision-makers will see the benefits and seek to advance a right to housing (and its benefits) more broadly. To more fully explore how local governments can do this she looks to legal devices such as declarations, resolutions, ordinances, conditional use permits, planned unit developments, building code amendments, impact assessments, and state laws exempting certain localities from building code requirements.
Next up is Mark Roark (Savannah Law School) whose paper Under-Propertied Persons builds on his prior work and explores the concept of property as creating insider-outsider relationships that have significant impacts on homelessness and poverty. He focuses on the two poll stars of the property discourse: waste and nuisance. Mark notes that when we talk about waste we think about autonomy and the ability to self-determine and build value. Nuisance, on the other hand, is spoken of in terms of expanding the boundaries of property and maintaining its value. He then explores these concepts through the lens of the environment and the architecture of public housing, looking to a number of specific locations including St. Louis and Chicago. Mark draws together the literature on how we speak about homelessness and poverty and gives it life through specific examples of how public housing is physically constructed and maintained. This includes a discussion of the stigma that becomes attached to those who live in public housing, which in turn prevents the residents from being more fully engaging in community building.
Last but certainly not least is Lynn Blais (Texas). Her paper, Disparate Impact as Evidence, looks to unpack the disparate impact theory of housing discrimination claims under the Fair Housing Act, particularly after Texas v. Inclusive Communities. She explains that although equal protection claims can generally overlap/intersect with disparate impact claims, the theory of disparate impact (from an historical perspective) is meant to be more expansive than a mere equal protection claim. Lynn does this by looking at how the disparate impact plays out in various different federal legal regimes aside from housing. She notes the difficulty in making out a disparate impact claim because of the struggle to obtain the necessary statistics. This usually results in these cases being dismissed as courts focus on the statistical aspect of the claim and less on the actual evidence of discrimination. Her goal in this piece is to push outward the idea of due process and fair housing. In doing so she hopes to push the Court toward better developing a more robust framework for making out an intentional discrimination case.
See you after lunch when we'll be back for panel #3!
Greetings from the Property Schmooze at Texas A&M! The first panel is on takings law. We're about to start, so time to start blogging!
The first paper is by Tim Mulvaney (Texas A&M), who presented his work, Non-Enforcement Takings. Tim raises the question of whether the lack of enforcing a propety law could serve as the basis of a taking. For example, assume there are two land owners, A and B. The state decides not to enforce a property law against A. Query: can B sue for a takings for the non-enforcement of the law against A? To highlight his example, Tim discussed the recent case, Harris County v. Kerr. In Kerr, there were two sets of land owners--upstream land owners and downstream land owners. In the 1980s Harris County made a flood plan which said the county would not allow the upstream owners to develop their property in such a manner as to injure the downstream owners. Since the paper is about non-enforcement, you can all guess what happened next. The upstream owners were allowed to develop their property and that development caused problems for the downstream owners. The downstream owners brought a takings claim againt the county and the Texas Supreme Court easily dismissed their claims. Tim's paper asks whether that was the right answer and whether there is a broader category of non-enforcement takings.
Next up is Chris Serkin (Vanderbilt) who presented his work, Prospective Grandfathering, which is co-authored with Michael Vandenbergh (Vanderbilt). Chris' talk commences with the story of natural gas. As he said, we need to move from coal to natural gas soon, but we can't stop at natural gas; in 30 years we need to have developed technology so as to no longer be required to use natural gas. Chris' story creates a taking in the future--we know today that we need natural gas companies to build up, but only build up for 30 years, and then Congress needs to regulate the natural gas market in such a way as to eliminate natural gas. Chris' point is that we know a takings case will happen in the future, so can we do anythig about it? He answers the questionin the affrmative with the idea of prospectively grandfathering in (and thus eliminating) future takings litigation. His plan is to require regulators to announce but delay the adoption of new regulations, as well as accelerate cost recovery for individuals like natural gas utilities, and in doing so, the future government would be immunized from the takings claim. In other words, Chris advocates having natural gas companies charge more today to preemptively make up for predicted future industy downturns, thereby removing the future takings claim.
The last paper for the Takings panel is from Greg Stein (University of Tennessee). Greg presented his paper, Reverse Exactions. Greg's work looks at exactions and asserts that current exaction law tips the scale too favorably towards the applicant because the state is too concerned about takings liability and thus allows too many applicants to get their permits or applicants to pay too little money to offset the externalities caused by their permit. To combat this, Greg's paper argues that we should have a reverse exactions claim whereby members of the community could bring a claim asserting that the state did not acquire enough of an offset from any negative consequences from issuing the permit and demand that more offset must be extracted.
Panel two on fair housing is up next!
Wednesday, February 1, 2017
It is with great sadness that I post regarding the passing of a civil law property giant—my colleague, my mentor, my partner on numerous reform efforts to the Louisiana Civil Code property articles, my intellectual opponent on some issues, and above all, my very dear friend, Thanassi Yiannopoulos.
A plethora of tributes have been written about Thanassi, and undoubtedly many more are in the works. For the purposes of this blog, I wanted to share what Thanassi did for property law.
At this point, many of you may be wondering, “who is this professor you are honoring?” Given that Thanassi did not regularly comment on American common law property, it is unsurprising that many American property law scholars may have missed his contributions. But one should not mistake a lack of commentary in traditional American law reviews for a lack of knowledge. Thanassi Yiannopoulos knew more about common law property than most. Thanassi’s extensive knowledge did not stop with common law property or general precepts of civil law property. Thanassi was the only legal scholar I know of who brought to the table a vast knowledge of current English law, old English law, German civil law, French civil law from the early 1800s, French civil law today, Greek civil law, ancient Greek legal systems, and much, much more.
All of this knowledge Thanassi brought to the relatively small state of Louisiana. Arriving at Louisiana State University in 1958 (and moving to Tulane in 1979), Thanassi took the Louisiana legal system by storm. Beginning in the 1960s, Thanassi helped lead a systematic revision of the Louisiana Civil Code. Thanassi’s particular expertise was in property law, and thus he was the reporter in charge of revising most of the property law articles. Throughout the 1970s and 1980s Thanassi led the charge in amending all of Louisiana’s Civil Code articles relating to property law. Everything from acquisitive prescription to usufructs to nuisance to enclosed estates to classification of things, Thanassi had a leading hand in crafting current Louisiana law.
Thanassi’s impact on Louisiana property law ran far deeper than just revising the legislative text itself; he also wrote prolifically, trying to explain Louisiana property law. He is the author of three treatises on the subject, as well as the editor for the entire Louisiana Civil Code. He wrote numerous civil law textbooks and countless law review articles. If that scholarship was not enough to influence Louisiana property law, Thanassi also spent large amounts of his time consulting on property cases. He was cited in more than 600 cases and now doubt will be cited in many, many more posthumously.
It is hard to identify exactly what Thanassi’s biggest contribution was to Louisiana property law and, truly, civil law property around the world because he made so many contributions. As a colleague both at Tulane and on the state’s main law reform organization, what I will miss most about Thanassi, though, is the comparative knowledge he brought to every meeting, every conversation. Louisiana property law is better today because the man centrally responsible for drafting it in the 1960s, 1970s, and 1980s knew the successes and shortcomings of Greek property law and German property law and French property law and English property law and American property law. That vast knowledge is hard to acquire, but something I learned from Thanassi that we should all strive for, as understanding the property systems of others can help us improve our own.
Texas A&M University School of Law’s new Program in Real Estate and Community Development Law, will be hosting its first Real Property Law Schmooze on Feb. 2-4, 2017.
The Program is co-founded and co-directed by Aggie Law Professors Lisa T. Alexander, who has a joint appointment in Texas A&M University’s Department of Landscape Architecture and Urban Planning, and Thomas W. Mitchell, who has a joint appointment in Texas A&M University’s Department of Agricultural Economics.
The Program seeks to generate innovative research and create curricular offerings. It also seeks to develop policy solutions to meet both urban and rural development challenges in the 21st century. Its mission is to understand the evolving role of law in these developments and to design novel legal strategies to enhance both equity and efficiency in urban and rural redevelopment.
“America is experiencing an increasing urban and rural divide,” Alexander said. “This rift took center stage in the recent election.”
“As urbanization becomes the dominant world migration pattern over the next 50 years, the law will play a central role in determining how rural areas retain their vitality and sustainability, as well as how urban centers can equitably, efficiently and sustainably accommodate the urban influx,” she said.
The Program is one of the few law school programs to focus on both urban and rural real estate, housing, land use, and community development law challenges.
The Real Property Law Schmooze will be the first event sponsored by the Program. The Schmooze will afford property law scholars the opportunity to share unpublished works-in-progress or early-stage ideas with other leading property law scholars at Texas A&M University and beyond.
In its inaugural year, the Real Property Law Schmooze will feature approximately 20 legal scholars from southern law schools in the U.S. In future years, the Schmooze will extend invitations to scholars throughout the U.S. and abroad, based upon topics or regions. The keynote speaker this year will be Lee Anne Fennell, Max Pam Professor of Law, Co-director of the Kreisman Initiative on Housing Law and Policy, and Ronald H. Coase Research Scholar at the University of Chicago Law School. She will present her paper, “Searching for Fair Housing.” While at Texas A&M Law School, Professor Fennell will also speak for the Law and Social Science Program, convened by Professors Nuno Garoupa and Gary Lucas and hosted by Professor Milan Markovic.
“We are excited to host the kickoff event for Texas A&M University School of Law’s Program in Real Estate and Community Development Law. We look forward to building this new program by working with the fantastic group of professors on our faculty who are affiliated with the program, together with leading real property and community development practitioners in Texas and beyond. For each of our program’s activities, we intentionally are seeking to address property and community development issues both within urban and rural communities whether domestically or internationally. The preeminent property law scholars who will participate in this year’s inaugural Real Property Law Schmooze will present scholarship on just the range of property issues that reflects the scope of our Program’s mission,” said Mitchell.
If you are interested in what happens at the Schmooze, don’t worry—we’ll be live blogging the event!
Monday, January 30, 2017
This past week, an unlikely candidate stepped into the media spotlight of building walls to keep people out of particular property: Mark Zuckerberg.
Zuckerberg, CEO and founder of Facebook, does not regularly take political stances, but on occasion he does. For example, last Friday Zuckerberg posted on Facebook about his dismay in President Trump’s executive order halting admission to the United States for refugees and placing tightened vetting requirements for those coming to the United States from predominantly Muslim countries. As anyone reading this post likely knows, the executive order was blocked in part, such that foreigners entering the country would not be deported immediately upon arrival.
So how in the world did Zuckerberg manage to step in this s&*# show?
Zuckerberg didn’t exactly step into President Trump’s executive order woes, but the Facebook founder did get himself into his own hot water by proposing his own private walled off property. In case the chaos of President Trump’s first few days has drowned out other news, here’s the skinny to catch you up.
A couple of years ago, Zuckerberg purchased a lot of land in Hawaii to build a private sanctuary for his family. He paid lots of money, somewhere around $100 million, for a lot of beachfront property, approximately 700 acres. So far, this just sounds like lifestyles of the rich and famous,1 so what gives? What Zuckerberg allegedly did not understand when he purchased the property was that a handful of Kamaʻāina families owned small parcels of land within the 700 acre Zuckerberg estate.
So just picture it: there’s Zuckerberg, his wife, their child, enjoying their massive estate, bar-b-queing on their backyard beach, and having a few local families crash the shin dig. To use Facebook terminology:
Having locals walking around his pad wasn’t exactly Zuckerberg’s idea of a good time, so his cracker jack legal team did what most zealous advocates with a rich client would do in Hawaii—they filed quiet title and partition actions which would force the handful of families who own parcels within Zuckerberg’s estate to sell off those parcels to the highest bidder at an auction. It doesn’t take a Ph.D in Economics to realize who the highest bidder at the auction would be.
While Zuckerberg was within his legal rights to file the action, he was on the wrong side of public opinion. The concern with quiet title actions like the ones Zuckerberg originally filed is that native families are usually forced off their property. The problem isn’t exclusive to Hawaii or the Zuckerberg’s of the world; quiet title and partition actions happen in lots of states. As Thomas Mitchell (Texas A&M) said recently on the topic, you tend to find this anywhere there is a marginalized group of individuals. The problem of native Hawaiian landowners being bought out of their property was enough of an issue that the Hawaii Legislature adopted the Uniform Partition of Heirs Property Act which empowers native individuals to keep their land when threatened with quiet title and partition actions by giving native individuals legal tools such as the right of first refusal. The Hawaiian law went into effect on January 1, 2017; Zuckerberg filed his lawsuits in December 2016, just barely missing the enforcement of the new law.
As a Facebook junkie, Zuckerberg is used to getting more “likes” than he is angry protests, so upon a cry of public outrages at his legal maneuvering, he made the smart PR move—he apologized for his legal actions and dropped the lawsuits, promising to work out a better solution that would have local support. What will that solution be? Only time will tell, but hopefully it won't involve the building of any walls.
1 Yes, many years ago President Trump was on the TV show. Google it.
Wednesday, January 25, 2017
The cat is finally out of the bag: ALPS will be going to the University of Michigan for its annual conference!
The Association for Law, Property & Society (ALPS) is an organization for those engaged in scholarship on all aspects of property law and society. Its annual meeting brings together scholars from different disciplines to discuss their work and to foster dialogue among those working in property law, policy, planning, social scientific field studies, modeling, and theory. Prior meetings have averaged approximately 150 participants from across the globe. ALPS will hold its 8th meeting at the University of Michigan in Ann Arbor, Michigan on May 19–20, 2017.
Submissions on any subject related to property law and the practices that shape property norms and institutions are welcome. ALPS has a strong commitment to international and interdisciplinary diversity, and paper topics reflecting that commitment are encouraged.
ALPS accepts both individual paper submissions and proposals for fully formed panels (usually 3 to 5 presenters, sometimes including not only papers but also films or multimedia outputs). Submissions may be of full paper drafts and completed projects or early works-in-progress. Submissions should include an abstract of no more than 250 words. The abstract must include: (1) the name of the submitting scholar, (2) the scholar’s institution, and (3) an email contact for the author or authors. If submitting a fully formed panel, please insure that an abstract for each paper is included in the submission and that each abstract clearly identifies the fully formed panel the paper is a part of.
The deadline for submitting papers and panels is February 24, 2017, but registration for the conference will continue to be available after that date. Authors and panel proposers will be notified of the acceptance of their individual submissions or proposed panel by no later than March 10, 2017.
A discounted early registration rate of $150 is available until March 10, 2017. After that date, the registration rate is $175. The registration rate for full-time students (JD, PhD, or other program) is $50.
To register and submit an abstract, click here.
Please direct all inquires to ALPSConference2017@gmail.com.
Saturday, January 21, 2017
4th Annual International & Comparative Urban Law Conference
Law and the New Urban Agenda
Cape Town, South Africa - July 17th & 18th, 2017
Call for Conference Participants
The Fordham Urban Law Center, in partnership with the University of Cape Town (UCT) and UN Habitat, is pleased to announce a call for participation in the 4th Annual International and Comparative Urban Law Conference. The Conference will be held on Monday July 17th and Tuesday July 18th, 2017 at UCT in Cape Town, South Africa.
The Conference will provide a dynamic forum for legal and other scholars to engage diverse international, comparative, and interdisciplinary perspectives in urban law. The Conference is open to urban law topics across a broad spectrum, such as:
- Structure and workings of local authority and autonomy
- Urban and metropolitan governance and finance
- Economic and community development
- Housing and the built environment
- Unique challenges facing cities in developing nations and the Global South
- Urban public health
- Migration and citizenship
- Urban equity and inclusion
- Sustainability and resilience
While the Conference will foster a broad scholarly dialogue about cities and legal systems in comparative and international perspective, we specifically invite submissions focusing on the role of law in the New Urban Agenda adopted this past October by the United Nations at the Habitat III Conference in Quito, Ecuador. In particular, the Conference seeks to investigate legal tools to advance the New Urban Agenda in a manner that is democratic, sustainable and equitable.
PROPOSAL SUBMISSION: Please submit a proposal (maximum 500 words) to Gilberto Vargas, Associate Director, Fordham Urban Law Center, at email@example.com. Please put "[name of proposed paper]" in the subject line of your email. If you have a draft paper, please include it with your proposal. Participants do not need to have prepared a formal paper in order to join the program. The Center is also pleased to be able to award partial travel grants for this Conference, although funds are limited. Please indicate the extent of your funding needs. Deadline for proposal submissions: March 6, 2017.
PUBLICATION: The Urban Law Center has developed a book series compiling cross-cutting global perspectives on law and urbanism, with a core focus on comparative enquiry. If you are interested in potential publication, please indicate this interest at the time of your proposal submission.
ABOUT THE URBAN LAW CENTER: The Urban Law Center at Fordham Law School in New York City is committed to investigating the role of the law and legal systems in contemporary urbanism through scholarship, pedagogy, programming, and applied research partnerships. Please visit http://urbanlaw.org for more details about the Center.
ABOUT UCT: Founded in 1829, The University of Cape Town is the oldest university in South Africa. UCT aspires to be the premier academic meeting point between South Africa, the rest of Africa and the world. Please visit https://www.uct.ac.za/ for more details about UCT.
Friday, January 20, 2017
Call for Contributions: Challenging Traditional Notions of Property in Land Use Planning, Journal of Law and Social Policy
(With thanks to Nick Blomley for sharing this)
CALL FOR CONTRIBUTIONS
Special Volume: Challenging Traditional Notions of Property in Land Use Planning, Journal of Law and Social Policy
The Journal of Law and Social Policy (JLSP) seeks to encourage debate and dialogue on important issues at the intersection of law and society, particularly as they impact low income individuals and disadvantaged communities. In addition to scholarly articles, the Journal encourages critical commentaries, reflective essays—including work that speaks to the impact of law and social policy on human experience—and book reviews for the Voices & Perspectives section of each volume. Non-traditional and creative works are encouraged, for example creative non-fiction and poetry.
In Spring 2017, the JLSP will be publishing a special volume highlighting contributions made to an interdisciplinary workshop on property and planning law. The premise of the workshop was that property is rooted in a complex set of social relationships with a plurality of legal orders and a messy collection of interests, with papers exploring alternative ownership models, intersections of indigenous and municipal interests, and the politics of planning.
The JLSP is now welcoming contributions to the Voices & Perspectives section that relate to the theme of the special volume. In particular, we are looking for essays, interviews, photography, art or other creative works exploring the relationship between property and planning. Possible contributions include non-fiction essays on expressions of resistance, representative displays of place-making, interviews with activists and community leaders, or mapping and photographic imaging.
The deadline for submissions is Monday, February 20, 2017.
To submit your work or to ask any questions, please contact special volume editors Alexandra Flynn (Alexandra.firstname.lastname@example.org) or Donald Leffers (email@example.com), or JLSP Editor-in-Chief, Janet Mosher (JMosher@osgoode.yorku.ca).
Thursday, January 19, 2017
I just came back inside from helping dig my neighbor's car out of the snow pile in front of his house. The last two weeks have provided two snow days for the local school district--one because of too much snow, and yesterday because of too much melting snow. And Boise, which isn't particularly used to significant snow fall, 300 miles to the south of my home in North Idaho, has experienced six snow days of its own.
These are the types of conditions that often cause the cynical to say, "I could use some of that climate change right now."
But for parts of the West, this apparent bounty of snow hides one of the most significant changes will we face in a climate-altered future.
These maps reflect current data from the NRCS SNOTEL sites across Idaho, which measure precipitation and snow pack, and help predict water availability for the coming year. The first is how much total precipitation has fallen in the current water year (since Oct. 1) as a percent of 1981-2010 median. That map shows well above normal amounts of precipitation.
But the real story is in the second map, which shows snow water equivalent in the current snow pack. This is a more useful measure of water availability, since is reflects the amount of water stored in our snow pack reservoirs--water that will be available next summer as the snow pack melts. That map tells a different story, with most of North Idaho well below normal, notwithstanding the piles of snow in our front yards. Much of that above average precipitation fell in the early winter as rain, and has already made its way downstream to the ocean.
In the lower elevation mountains of the Pacific Northwest, climate change will raise snow levels, bring more rain and less snow, and shift the peak of the hydrograph to earlier in the year. The snow reservoirs will hold less water, and less water will be available everyone: farmers, cities, hydroelectric dams, and anadromous fish.
And as these maps demonstrate, we are seeing those effects today. More rain, less snow, and a less predictable water future.
From our friends at the Harvard Law School, check out these great opportunities for up-and-coming property law scholars:
Postdoctoral Fellowship in Private Law
The Fellowship is a two-year, residential postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers with a primary interest in private law. Private law embraces traditional common law subjects (property, contracts, and torts), as well as adjacent statutory areas such as intellectual property and commercial law. It also includes resurgent areas, such as unjust enrichment, restitution, equity, and remedies. Fellows have been selected from among recent graduates, young academics, and mid-career practitioners who are committed to pursuing publishable research likely to make a significant contribution to private law scholarship.
Fellows devote their full time to scholarly activities in furtherance of their individual research agendas. In addition, fellows contribute to the intellectual life of the Project and the Harvard Law School community through mentoring students, presenting their research in and attending faculty workshops and seminars, helping to organize and participating in Center events and projects, and blogging.
Qualcomm Postdoctoral Fellowship in Private Law and Intellectual Property
The Qualcomm Fellowship is a two-year, residential postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers with a primary interest in intellectual property and its connection to one or more of property, contracts, torts, commercial law, unjust enrichment, restitution, equity, and remedies. Fellows have been selected from among recent graduates, young academics, and mid-career practitioners who are committed to pursuing publishable research likely to make a significant contribution to private law scholarship.
Fellows devote their full time to scholarly activities in furtherance of their individual research agendas. In addition, fellows contribute to the intellectual life of the Project and the Harvard Law School community through mentoring students, presenting their research in and attending faculty workshops and seminars, helping to organize and participating in Center events, and blogging.
Thursday, January 12, 2017
Privacy and property rights are tricky subjects for a variety of reasons. One reason is that they have a unique relationship with each other, and this Article focuses on one of those areas of intersection—that of air rights and invasion of privacy. This is a timely topic due to the advent of drones, and this Article will argue that drone surveillance constitutes common law trespass and that any statute or regulation that permits such activity is in derogation of common law and so should be subject to particularly careful thought and consideration.
This is not as straightforward a thesis as one might perhaps think because both property and privacy rights have a murky past and have gone through iterative formulations as society has sought to achieve the right balance between the public and private spheres. Privacy has historically focused on expectations of privacy, and property rights have traditionally provided such expectations, but the legally recognized nature of each has not changed over time to keep pace with technological innovation. This has led to a situation where the kinds of rights and causes of action that have traditionally protected individuals no longer suffice in a variety of circumstances.
In particular, the use of drone technology to engage in sophisticated surveillance presents significant challenges to our existing legal framework. Part I of this Article examines the history of privacy law in some detail, and Part II does the same with respect to the common law of airspace property rights. When these two areas of the law are examined in tandem, it becomes apparent that drone surveillance violates rights that society generally wants to protect and that society has historically protected. That protection, however, is now lacking. There is some reason for the failure of the law to keep up with this type of new technology, and Part III examines the historical “aircraft exception” that many may now believe justifies the law’s acquiescence in the face of drone surveillance. Ultimately, though, this Article concludes that this common law exception is not applicable to drones and that, as such, the law should adapt to protect the public from drone surveillance. Part IV concludes this analysis by making a number of recommendations that state and federal legislatures and various administrative agencies would do well to consider when passing laws and promulgating rules regarding drone technology.
Saturday, January 7, 2017
Bethany Berger (Connecticut) has posted The Illusion of Fiscal Illusion in Regulatory Takings (American University Law Review) on SSRN. Here's the abstract:
In January 2016, the Supreme Court granted certiorari in Murr v. Wisconsin, the first regulatory takings case to be decided by the Roberts Court. Because regulatory takings doctrine has little direct support in constitutional text, history, or precedent, arguments to expand regulatory takings rest heavily on policy grounds. This Article argues that the central efficiency argument for expansion — often dubbed “fiscal illusion” — is based on a surprising mistake. Without compensation, the argument goes, governments operate under a fiscal illusion, because from their perspectives, their actions are costless. The problem is that this argument makes no sense as a description of the actual costs to governments.
Taxation is the main way governments get revenue, and most taxes depend on the value of property and its permissible uses. If governments restrict land so as to reduce its value or the income produced by it, its residents, or its patrons, they generally already feel the loss in their budgets. If the restriction creates benefits, those too are reflected in tax revenues. While there are limitations to the accuracy and efficacy of the tax signal, efficient regulations should roughly have a net positive effect on governmental revenues, while inefficient ones should have a net negative effect. Fully compensating owners, in contrast, does not lead the government to accurately internalize societal costs — it rather adds a new and much larger cost. Because this cost usually far exceeds revenue gains, governments may rationally forgo even efficient regulations. Owner compensation, in other words, does not correct fiscal illusion. It creates it.
Revealing the illusion of fiscal illusion leaves standing much older arguments that compensation is required as a matter of fairness. But by clearing away the main efficiency justification for direct compensation, this Article permits clearer-eyed assessment of whether and to what extent fairness may require compensation, and prevents measures in the name of efficiency that in fact undermine it.
Thursday, January 5, 2017
Greetings from AALS! Yesterday I had the pleasure of attending the Property Law Section's works-in-progress program here in (what is finally today) sunny San Francisco. Donald Kochan (Chapman) kicked off the event with an introduction of the speakers and explained that the purpose of the session was to give faculty an opportunity to share their early to mid-stage reseach projects with senior colleagues in the field. Each presenter was paired with a mentor who commented on the paper and gave feedback.
First, Gregory Ablavsky (Stanford) shared his recent project "The Rise of Federal Title" that looks at the problems of title and land rights in the development of the American West. He notes in his historical piece that although the federal government has typically been viewed as distributing lands and settling land disputes, it actually played a much larger role than is currently appreciated when it came to the actual development of the American system of entitlements to land.
Next was Molly Brady (Virginia) who shared her research on the damagings clause in various state constitutions. She noted that the origins of the provision relate to states wanting to provide a remedy for situations where private property was physically damaged by public works projects (such as street grading). In this work she examines the untold story of the damagings clauses, and notes that state courts have taken a very narrow approach to their application due largely to the influence of federal takings law.
John Infranca (Suffolk) then explained his current work-in-progress--"(Communal) Life, (Religious) Liberty, and Property"--, which examines the role that the concepts of freedom of religion and the right to property play in the recognition of rights more broadly. He explains and then unpacks the ways in which religious freedom and property rights are generally viewed as having a larger role in shaping norms and group rights.
Vanessa Casada Perez (Texas A&M) shared her law and economics work that explores the role that sharing economy platforms play in dealing with issues of parking. She outlines whether local government decisions to ban such platforms/companies can be justified under a public trust theory of public spaces. She then analyzes the up- and down-sides of local government regimes that seek to prohibit the use of pubic spaces for profit-making enterprises using sharing economy innovations.
Lastly, Thomas Simmons (South Dakota) gave a presentation on his research into homestead laws, including exemptions from seizure by creditors and the rights of spouses under martial property regimes. His project gives special attention to the evolution of homestead laws from statute to state constitutional provision.
Great job to the Property Law Section for a really interesting and engaging program!
Friday, December 30, 2016
Local governments typically insure themselves against all kinds of losses, from property damage to legal liability. For small- and medium-sized governments, this usually means purchasing insurance from private insurers or participating in municipal risk pools. Insurance for regulatory takings claims, however, is generally unavailable. This previously unnoticed gap in municipal insurance coverage could lead risk averse local governments to underregulate and underenforce existing regulations where property owners threaten to bring takings claims. This seemingly technical observation turns out to have profound implications for theoretical accounts of the Takings Clause that focus on government regulatory incentives. This Article explores the impact of insurance on land use regulations. In the process, it reveals important insights about public insurance more generally and offers a novel explanation for the burgeoning land use innovation in cities compared to the relative stagnation of land use in the suburbs. It concludes by suggesting new ways for promoting local land use regulations that risk generating takings claims.