Friday, June 24, 2016
I’ve been doing a lot of research lately on how property law and the law governing debt recomposition interact—specifically in the context of the Puerto Rican debt crisis. Two major concepts that keep coming up in my research are the Takings Clause and the Contracts Clause.
Property law professors routinely teach eminent domain and Takings Clause concepts in class. In fact, it’s rare to attend a property law conference these days without at least several panels being devoted to such topics. But, I’ve not spent much time thinking about the Contracts Clause—or how it’s different from/similar to the Takings Clause.
Let me make this a little more concrete [BEWARE: this is going to be long-winded] . . . the Supreme Court recently struck down Puerto Rico’s Recovery Act. For those who haven’t been following this as obsessively as I have, Puerto Rico has been going through a bit of a debt spiral of late (to the tune of about $72 billion). Rather than waiting for Congress to do something about it, back in June 2014 Puerto Rican lawmakers decided to take things into their own hands and passed something called the Public Corporation Debt Enforcement and Recovery Act. The new law essentially created a bankruptcy-like process for the island to restructure its debt (I am summarizing, of course. For a more in-depth discussion, the good folks over at CreditSlips have some great descriptions and analysis).
Naturally, the island’s bondholders didn’t greet this new law with open arms. A group of them quickly filed a lawsuit in late summer 2014 arguing that the Recovery Act was unconstitutional. They raised a number of claims, including that the Act was preempted by the U.S. Bankruptcy Code. Now, despite the way oral arguments seemed to go, on June 13, 2016 SCOTUS struck down the Recovery Act in Commonwealth of Puerto Rico v. Franklin California Tax-Free Trust et al., holding that it was preempted by the federal bankruptcy code (specifically, Section 903).
But the part that got me thinking didn’t have anything to do with the Bankruptcy Clause—instead, I got interested in some of the other claims that the bondholders made, but that were not decided by the Court. They asserted in their complaint that “The operation of the Act, as enacted by the Commonwealth and signed into law by the Governor, threatens to improperly impair Plaintiffs' rights . . . in contravention to . . . the Takings Clause, and the Contract Clause.” See Amended Complaint, Franklin California Tax-Free Trust et al., 2014 WL 4954576 (D. Puerto Rico) (Trial Pleading). So, basically, modifying the creditor’s debt would violate the Contracts Clause and the Takings Clause—so Puerto Rico can’t do it – because both constitutional rights apply—or something like that—Right?
THE CONTRACTS CLAUSE
The Contract Clause (Article I, Section 10, Clause 1) states that “[n]o state shall . . . pass any . . . law impairing the obligation of contracts . . . .”
By its very terms, it only applies to the states (i.e., feds, this isn’t a problem for you). The Contracts Clause has a storied history—ebbing and flowing from importance to obscurity. In the early days of the republic (often called the Critical Period, being that time during which the Articles of Confederation were in effect) it was precisely due to a fear of state governments interfering with the rights of creditors that the provision was ultimately included in the federal constitution. As background, after the American Revolution many citizens of the new country found themselves horribly in debt. As a result, various state legislatures began passing laws to ease their pain (which creditors didn’t like very much). Drafters of the constitution found these “invasions into the contracts of private parties” harmful to commerce and the general course of business so they decided to put a limitation in place. See Ogden v. Saunders, 25 U.S. 213, 354 (1827) (for some angry commentary by Chief Justice Marshall). As with so many other provisions in the federal constitution, numerous state constitutions contain parallel contracts clauses as well.
THE TAKINGS CLAUSE
The Takings Clause (in the Fifth Amendment), on the other hand, provides that “private property [shall not] be taken for public use, without just compensation.”
Going back to the early days of the Republic, Thomas Jefferson and his buddies who were opponents of a strong central government advocated for the Bill of Rights (which contained the Fifth Amendment), but they weren’t the first to come up with the idea of protecting private property from the government. The Magna Carta had a similar idea going on, and the concept was already fairly prominent in various state constitutions during the period of the Articles of Confederation.
Initially, the Takings Clause only applied to the federal government (i.e., states, not your problem). Chief Justice Marshall stated in Barron v. Mayor and City Council of Baltimore, 32 U.S. 243 (1833) that “The provision in the fifth amendment to the constitution of the United States, declaring that private property shall not be taken for public use, without just compensation, is intended solely as a limitation on the exercise of power by the government of the United States; and is not applicable to the legislation of the states.”
But that all changed with the ratification of the Fourteenth Amendment in 1868. In Chicago Burlington and Quincy R.R. v. City of Chicago, 166 U.S. 226 (1897) the Court stated: “‘Whatever may have been the power of the states on this subject prior to the adoption of the fourteenth amendment to the constitution, it seems clear that, since that amendment went into effect, such limitations and restraints have been placed upon their power in dealing with individual rights that the states cannot now lawfully appropriate private property for the public benefit or to public uses without compensation to the owner.”
To the point about the recomposition of debt, SCOTUS later developed the regulatory takings doctrine in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), which provides that the government need not physically dispossess a person from his property in order for a takings claim to be raised. Rather, the government could restrict or regulate the use of property to such a degree that the state action was tantamount to a physical taking.
THE CLAUSES WORKING TOGETHER (OR NOT)
So now, when a state government takes an action that causes an impairment or modification of a contract, an aggrieved party can asset claims under both the Takings Clause and the Contracts Clause. That got me wondering—are they really, practically different? Do they produce different outcomes? Are those outcomes consistent? Do courts do a good job (or even try) when it comes to differentiating between the two?
I’m still working on the answers to those questions, but what does seem clear to me is that there doesn’t appear to be very clean lines here. The law is a bit…well…cloudy.
Take the Contracts Clause, for instance. Contemporary cases have held that just because a law impairs a contact doesn’t necessarily mean that it’s prohibited. Cases like U.S. Trust v. New Jersey, 431 U.S. 1 (1977) and Allied Structural Steel Co. v. Spannaus, 438 U.S. 234 (1978) hold that this clause still has to be squared with “the inherent police power of the State to safeguard the vital interests of its people.” See Energy Reserves Group, Inc. v. Kan. Power & Light Co., 459 U.S. 400, 410 (1983). The Supreme Court noted in U.S. Trust that “an impairment may be constitutional if it is reasonable and necessary to serve an important public purpose.” So the prohibition isn’t all that prohibitive after all.
In the context of the Takings Clause, courts have held that various government actions, despite limiting or restricting the use of property, nevertheless do not raise a takings claim. Regulations related to providing for the general welfare, for instance, are perfectly permissible. The court in Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 105 (1978) stated that where the government “reasonably conclude[s] that ‘the health, safety, morals, or general welfare’ would be promoted by prohibiting particular contemplated uses of land,” there is no requirement to compensate the owner. Joe Singer points out in Justifying Regulatory Takings, 41 Ohio N.U. L. Rev. 601 (2015) that:
Key examples of laws that promote the public welfare are zoning and environmental laws and consumer protection laws such as building codes. The Supreme Court has upheld against takings challenges laws that impose height limits and setback requirements, as well as zoning laws that segregate residential, commercial, farming, institutional, and industrial uses. The Court has upheld public accommodation laws and implicitly approved fair housing and employment discrimination laws. It has allowed minimum wage and maximum hours laws and workplace safety laws to operate without challenge.
Both clauses are, in a sense, concerned with protecting the sanctity of property rights (be they tangible—like land or personalty—or intangible—like those arising from a contract creating debt). One obvious difference is that with the Takings Clause it’s still possible for state governments to “take” property as long as they do so for a public purpose and just compensation is paid. Under the Contracts Clause, however, states are flat out prohibited from impairing a contract right. But, as indicated above, both of these commands can ring a bit hollow. States can pass laws that break contracts when it's “necessary and reasonable” and states can regulate property without causing a taking when its “justified.” And if a state is prohibited from impairing a contract, then can they just turn around and claim they're doing it under the Takings Clause? Can a public purpose be "necessary and reasonable" for Contracts Clause purposes and yet not "justified" for Takings Clause purposes? What about the other way around? Are these standards different or are they the same thing?
So what does all this mean for the distinction between the two? Can they always be raised together in the face of state action? What are the defining features/lines that make them wholly separate concepts—or is it better to think of them as being interlocking (like how Justice Kennedy describes the Equal Protection and Due Process Clauses in Obergefell v. Hodges)? I hope to formulate some answers to these questions (or at least sound a bit more like I know what I’m talking about) in the months ahead. Your thoughts are welcome and appreciated in the comments below.
Sunday, June 19, 2016
This short article argues that the Federal Housing Administration has suffered as a result of many of the same unrealistic underwriting assumptions that led to problems for many lenders during the 2000s. It, too, was harmed by a housing market as bad as any since the Great Depression. As a result, the federal government announced in 2013 that the FHA would require the first bailout in the agency’s history. While facing financial challenges, the FHA has also come under attack for the poor execution of policies designed to expand homeownership opportunities.
Leading commentators have called for the federal government to stop having the FHA do anything but provide liquidity to the low end of the mortgage market. These critics rely on a few examples of agency programs that were clearly failures, but they do not address the FHA’s long history of undertaking comparable initiatives. In fact, the FHA has a history of successfully undertaking new homeownership programs. However, it also has operational flaws that should be addressed before it undertakes similar future homeownership initiatives.
Friday, June 17, 2016
The law and econ movement has influenced large swaths of American law, particularly in the area of property law. People may disagree whether the vast influence law and economics has had for the past seventy-ish years over property law is for better or worse, but the impact law and econ has had on property law is indisputable. In fact, the influence is so strong, it can be challenging to contemplate a property regime with absolutely no reliance on law and econ.
If you want to see such a system, look no further than Deutschland. Law and economics has not made it to Germany. For the foreseeable future, if law and econ comes knocking at the country’s door, my guess is that border patrol will turn it away.
No where is the lack of law and econ in German law better seen than in the subject of waste. We all know about waste—the doctrine of waste precludes a current possessor of property from taking actions (or inactions) that might harm the predesignated future owner of the property. And we all know about Melms and how Pabst Blue Ribbon gained its glory in property law textbooks throughout the United States by furthering the concept of ameliorative waste. But here are a few things you might not have known:
(1) Almost every legal system has a Melms-like fact pattern. The Romans talk about converting land into vineyards for grapes. The English talk about converting a house into a pub. The French follow the Romans and the god of Bacchus. The Americans follow the English and beer-making. It’s almost shocking how, for more than one thousand years, society has always had the desire to change land from something residential into something alcoholic. With this random trivia in mind, I looked into German law. What do the Germans have? Nichts. Zilch. Nada. Nothing even remotely similar. I have proposed the basic Melms hypo to at least half a dozen German law scholars from Passau to Hamburg and their response has been, uniformly, “that fact pattern would never happen in Germany.” Full stop. Part of the reason it may never happen is because of the strong recording system in Germany, the Grundbuch, the details of which will be in a forthcoming post. Some of it may because due to the waste policy in German law. Who knows. But Germany is where the common fact pattern ends.
(2) German law rejects Melms. For usufruct law (usufructs being the civil law analog to life estates), the German BGB provides that the usufructuary may not alter the economic purpose of the property. BGB section 1030 provides that “An object can be burdened in such a way, that the person for who benefit this burden occurs is entitled to the use of the object and to take the fruits.” Section 1036 describes the type of use the usufructuary can make: “(1) The holder of a right of usufruct is entitled to possession of the object. (2) In the exercise of his right to use the holder must maintain the economic purpose for which the object was used and must exercise his right in a normal economic way.” Finally, section 1037 provides that “[t]he holder of a right of usufruct is not entitled to transform or actually change the object.” Bottom line, the usufructuary (=life tenant) ain’t altering anything big or anything that doesn’t fit with the economic purpose of the property. If the land has a mansion on it, nothing but a mansion is going on it.
(3) There is no give in the interpretation of BGB sections 1030 and 1037. German courts have narrowly interpreted BGB section 1037 such that any substantial change is prohibited. For example, the Landesgerichte court in Siegen, Germany held in 2014 that a usufructuary could not add a carport onto a house because the addition of the carport was more than an inconsequential addition and thus was an unlawful transformation.
(4) Leading me back to law and econ, German law would not allow a transformation of property that increased the value of the property. In 1983, a German court found a usufructuuary could not convert a single-family building into three flats because that would be a transformation of the property and alter the purpose of the property. A double whammy under the BGB. There was no discussion in the case about the fact a three-flat building could be more financially valuable than a one-family building It’s unclear that argument was even raised, though admittedly, German cases are not the most transparent cases in the world. But German commentaries cite the case for the proposition that a usufructuary cannot alter property even if that alteration increases the property’s value. You might think there would be something more definitive on the topic, something a la Melms, but there is not. It’s almost as if the law and econ idea is so foreign and antithetical to German law, that the argument never really comes up.
At this point, you may think waste is a small example, but looking in other areas of German property law, you don’t see law and econ anywhere. Take co-ownership. The German law of co-ownership (Miteigentum) has a detailed set of rules about how co-owned property can be used and managed. If all co-owners cannot agree, majority wins. So if there are 4 co-owners, each owning 25% of the property, and 3 vote one way, the 3 win. Simple. But German law places restrictions on what the majority can do. The majority cannot vote on any “substantial change” to the property. See BGB section 745. Even if the change will increase the value of the property, the 3 can’t do it. Yes, they can always partition, but German law excludes co-owners from making any profitable changes that are “substantial” if everyone is not on board. What does substantial mean? There are not a lot of cases on it, but it appears between the cases and commentaries that “substantial” is interpreted fairly broadly as to restrict co-owners’ ability to alter property. For example, building a parking garage on what had previously been a parking lot would be a substantial change. Further, anything that is expensive is a substantial change. A whole lot gets captured under the “substantial change” language meaning co-owners cannot do much without everyone’s consent, regardless of whether the end result behooves them all.
What makes German law so interesting to me is that there are lots of similarities with the American common law system—German civil law has servitudes and mortgages and takings and all of the other topics we talk about in the American common law system. And in many cases, there are very similar results. But one area where stark differences can be noticed is in the total lack of influence the law and economics movement has had on German law.
Wednesday, June 15, 2016
Richard Cupp (Pepperdine) has posted Animals as More Than "Mere Things," but Still Property: A Call for Continuing Evolution of the Animal Welfare Paradigm (University of Cincinnati Law Review) on SSRN. Here's the abstract:
Survival of the animal welfare paradigm (as contrasted with a rights-based paradigm creating legal standing for at least some animals) depends on keeping pace with appropriate societal evolution favoring stronger protections for animals. Although evolution of animal welfare protection will take many forms, this Article specifically addresses models for evolving conceptualizations of animals’ property status within the context of animal welfare. For example, in 2015 France amended its Civil Code to change its description of companion animals and some other animals from movable property to “living beings gifted with sensitivity,” while maintaining their status as property. This Article will evaluate various possible approaches courts and legislatures might adopt to highlight the distinctiveness of animals’ property status as compared to inanimate property. Although risks are inherent, finding thoughtful ways to improve or elaborate on some of our courts’ and legislatures’ animals-as-property characterizations may encourage more appropriate protections where needed under the welfare paradigm, and may help blunt arguments that animals are “mere things” under the welfare paradigm. Animals capable of pain or distress are significantly different than ordinary personal property, and more vigorously emphasizing their distinctiveness as a subset of personal property would further both animal welfare and human interests.
Tuesday, June 14, 2016
The University of Houston Law Center will be hosting the 5th Annual State & Local Government Law Works-in-Progress Conference on Friday, October 7, 2016 and Saturday, October 8, 2016. Scholars and practitioners writing in areas related to state and local government law are invited to attend and/or present works in progress. A formal call for papers will follow during the summer. Registration will take place in late August, and the deadline for papers and abstracts will be in mid-September. The conference will provide an opportunity for state and local government law scholars and practitioners to present works-in-progress and receive feedback from colleagues. Questions should be directed to Kellen Zale at firstname.lastname@example.org.
Sunday, June 12, 2016
Thanks to the support of the University of Passau, I’m spending the better part of my June doing research in Germany. Now that I’ve had my fill of schwein (pig), radler (lemon-y beer), and, of course, weinerschnitzel, and I’ve driven on the autobahn, and I’ve been hiking through scenic Bavaria, it’s time to get to posting about German property law.
Today we start with eminent domain. Germany, like the United States, constitutionally protects private property from being taken by the State. The German Basic Law, i.e. the German Constitution, provides in article 14(1) that “[p]roperty . . . shall be guaranteed,” property “entails obligations,” and property’s “use shall also serve the public good.”
“Public good” is interpreted by German courts to mean that the use must create a public advantage, regardless of whether that advantage is created by the State or a private entity. While that interpretation is like the Supreme Court’s interpretation of the Fifth Amendment in the U.S. Constitution, unlike the U.S., economic development is an insufficient public good. In other words, Kelo isn’t happening in Germany. In fact, some German courts have interpreted the public use requirement in the German Basic Law to require a public necessity in order for expropriation to occur.
In order for the State to take property, the State must pay compensation. Under Article 14(3) of the German Constitution, the compensation required is an “equitable balance between the public interest and the interests of those affected.” Thus, the U.S. notion of “just” compensation is not required; instead there is a balancing test which, of course, means that compensation in Germany for a takings could be lower than fair market value. This may seem objectionable at first to an American audience, but keep in mind that less property can be taken in Germany because of the more limited interpretation of public good under the German Basic Law. (Side note: a number of countries use public use/good and compensation to balance one another, i.e. the broader the definition of public use, the higher the compensation required and vice versa. Whether this works better/worse/or just differently than the U.S. approach is worthy of discussion, but that will be for another post.)
Finally, article 14(3) of German Basic Law requires that any taking be made “pursuant to a law,” which essentially means that legislation must set forth the necessary takings procedure. In practice, this works pretty similarly to the U.S. notion of procedural due process.
There you have it—a brief primer on takings in Germany. Over the next couple of weeks we’ll look at other classic property doctrines under German property law, so if there’s a burning question you have about the Bürgerliches Gesetzbuch (the German Civil Code), fire away. No guarantees you’ll get an answer—there is, afterall, a lot of radler here to consume—but I’ll see what I can do.
Now Germany is about to play Ukraine in Euro 2016, so time to do as the Germans and head for the biergarten.
Friday, June 10, 2016
Professors' Corner's free monthly webinar featuring a panel of law professors, addressing topics of interest to practitioners of real estate and trusts/estates
Sponsored by the ABA Real Property, Trust and Estate Law Section, Legal Education and Uniform Laws Group
Tuesday, June 14, 2016
12:30 p.m. Eastern/11:30 a.m. Central/9:30 a.m. Pacific
Mortgages and Condo/Homeowners Association Liens:
Recent Developments in Lien Priority
Wilson Freyermuth, John D. Lawson Professor of Law and Curators’ Teaching Professor, University of Missouri
Christopher K. Odinet, Horatio C. Thompson Assistant Professor, Southern University Law Center
Moderator: Tanya Marsh, Professor of Law, Wake Forest University
In all states, common interest ownership law permits a condominium, cooperative, or homeowners association to assert a lien upon a lot or unit within the community when its owner fails to pay the common expense assessment allocated to that lot or unit. In some states that have adopted statutes comparable to the Uniform Condominium Act or the Uniform Common Interest Ownership Act, the association has a limited priority for some portion of the unpaid assessments (typically, six or nine months’ worth).
In the wake of the mortgage crisis, the issue of whether (and to what extent) an association’s lien should have priority over other liens has produced a great volume of litigation as well as aggressive efforts by federal regulators to negate or pre-empt state law priority rules. Our speakers will address recent judicial, statutory, and regulatory developments, including: (1) the rationales for (and against) association lien priority; (2) whether the association’s lien priority constitutes a true lien priority or merely a payment priority; (3) whether the association’s limited priority is recurring or can be asserted on a one-time-only basis; (4) whether the association’s priority extends to interest, attorneys’ fees, and other costs of collection; (5) the effect of the federal Housing and Economic Recovery Act (HERA) on state law association lien priority rules; and (6) FHA’s proposed rule under which reverse mortgage loans would be ineligible for assignment in states that provide the association with limited lien priority.
Register for this FREE webinar at http://ambar.org/ProfessorsCorner
Tuesday, June 7, 2016
I’ve been thinking a lot lately about the property law aspects of debt (don’t let your head hit the keyboard as you fall into a deep slumber from reading that, now!). Most of my interest in this topic comes from my obsession with the Puerto Rican debt crisis. Unless you’ve shut yourself off from social media (or any media, for that matter) you likely at least know that the island, a U.S. territory serving as home to 3.5 million American citizens, is flat broke. They’ve defaulted on multiple interest payments to their bondholders, tried to enact their own bankruptcy-like law (overview by Stephen Lubben at Senton Hall here)--currently pending a decision from SCOTUS, and right now Congress is trying to pass a super special insolvency procedure to help out the island (for a little Citizens United flavor, take a look at this dark money ad urging the defeat of the bill). I’ll have a post on this topic, and the takings claims posed by the bondholders, next week.
But back to debt as property . . . The Supreme Court has long held that rights in debt (contract rights) constitute property. See Omnia Commercial Co. v. U.S., 261 U.S. 502 (1923); see also Lynch v. United States, 292 U.S. 571, 579 (1934) (“Valid contracts are property.”). And we freely buy, sell, and trade such rights all the time. Indeed, that’s what the secondary mortgage market and the private label mortgage market are all about! Buying and selling mortgage debt at discounted rates, typically (in the Fannie/Freddie context) to provide more liquidity to the residential housing market and thereby increasing the availability of credit.
But people buy debt for other reasons as well—to make money! There was a great (and, per usual, hilarious) discussion on John Oliver’s HBO show, Last Week Tonight, this past Sunday on the topic of “Debt Buyers.” Here’s the video:
In the show he points out a bunch of things about the debt buying industry—prominently discussing the shady practices of some of the industry’s less than wholesome characters. In fact, he sends a team with a hidden camera to the industry’s trade conference in Las Vegas. One of the panel presenters at the conference notes cavalierly that, despite state law requirements that debt buyers disclose to consumers that their obligation to pay the debt may be extinguished by the statute of limitations: “Who’s going to read and understand the words on this letter? The unsophisticated consumer? . . . I depose these plaintiffs in these lawsuits and they don’t even read the letter.” What a jerk! I bet he wasn’t too happy to see his remarks go viral.
But back to the point . . . the general idea of the show was to basically talk about how bad the debt buying business can be: how bad guys go after poor, unsuspecting consumer debtors and ruin their lives. But it strikes me that the issue of how one gets into debt and the ability of someone other than the original creditor to enforce the credit right are entirely different. Putting aside the former, is there anything wrong with selling debt like we sell tangible personal and real property? From a debtor’s perspective, does it really matter whether the original counterparty to the contract is the party now trying to enforce it? We could assume that there might be something particular about that specific obligee that makes contracting with him, from the obligor's perspective, special. In those cases we have doctrines of assignability. But, in the context of pure debt (the right to collect on an amount owed) in an arms-length transaction, it does not seem much different than a market for anything else.
But are there policy reasons why we should prohibit (or at least discourage) this type of market from becoming more robust (if it isn’t already – spoiler: it is already)? Chain of title problems certainly loom large in these transactions. As the segment above indicates, often all that is exchanged between the debt seller and debt buyer is the purchase price and an Excel spreadsheet with minimal information about the obligations owed. There’s also little due diligence done on the buyer’s end – such as ascertaining whether the debt is even still collectable. Perhaps one could argue that the nature of this particular type of “property” (specifically how it can impact vulnerable consumer debtors when owned by unscrupulous collectors) merits thinking differently about whether the debt buying business is just another property market. Maybe there are just too many bad guys or, if there aren't that many, the damage that the few cause is just too great.
My home state of Louisiana has a really interesting way of dealing with debt sales once litigation on the debt has commenced. We call it the “right of litigious redemption.” It basically works like this: Original Creditor commences a lawsuit against Debtor. As the litigation proceeds, Original Creditor realizes that he cannot (or does not want to) carry the lawsuit through to the end because it is too time consuming or is eating up too many resources (or for whatever reason). Instead, Original Creditor “sells” the lawsuit to Buying Creditor for a discounted purchase price. Now, Buying Creditor is the plaintiff against Debtor in the litigation. Under Louisiana law, Debtor can now pay to Buying Creditor an amount equal to the discounted purchase price he paid Original Creditor, and in doing so completely extinguish the lawsuit! Voila! Just like that. You can see how this is a great deal for Debtor. If the debt he owes to Original Creditor is $20,000, but Buying Creditor only paid Original Creditor $7,000 for it, then Debtor is essentially relieved of paying $13,000 worth of debt! The supposed policy reason for doing this has to do with wanting to discourage a robust market for the buying and selling of lawsuits from developing. To my knowledge, no other state in the U.S. has such a law (please correct me if I’m wrong in the comments below).
So what about property markets in debt? Good? Bad? Or . . . like most things, a little bit of both?
Saturday, June 4, 2016
Under U.S. law there is no property interest in mere facts. But with respect to factual data relating to human genes, a de facto property regime has emerged in all but name. The level of control that individuals have exerted over genetic data exhibits the classic hallmarks of Blackstonian property: the right to exclude, the right to destroy, dead hand control, divisibility, and alienability. This degree of control has arisen through an expansive interpretation of the ethical requirement of informed consent. Notwithstanding the ongoing evolution of federal research regulations that permit some data-based research to proceed without extensive consent requirements, actions sounding in state property law pay little heed to compliance with these regulatory procedures. The resulting property-like regime over genetic data has enabled individuals to bring litigation disrupting and even halting valuable biomedical research and leading to the destruction of valuable research resources.
Looking to Calabresi’s and Melamed’s seminal analysis of property and liability rules, I propose that the property-like treatment of genetic data be replaced by a combination of existing and new regulations of researcher conduct (liability rules) to protect individuals from abusive research practices. This approach would shift the landscape from one in which data-based research cannot occur without the consent of individual research participants, to one in which research is presumptively allowed, but researchers face liability for overstepping the bounds of permitted activity.
Monday, May 30, 2016
Holy bovem, Batman! Roman property law has made its way into popular culture! Who saw that coming? Certainly not the hundreds of students I have taught at Tulane who generally groan when I discuss the Corpus Juris Civilis. Hell, I never thought that Roman modes of acquiring ownership through possession would make it to the big time, but last Thursday it happened. Roman property law was front and center. And on ESPN, no less!
As a person who writes in comparative property law and thus manages to make generally old doctrines that date back to the 1200s even older by talking about their Roman roots, I felt like this when I heard the word called out. When I saw Twitter posting after Twitter posting on the topic, I started singing "I'm so excited." (My apologies to those of you who were also staying at the Hawthorn Suites in Champaign, Illinois and got stuck hearing my outburst.)
It was all pretty darn cool.
Unfortunately Snehaa Ganesh Kumar misspelled usucapion (she spelled it usicapion, which is super close, but the National Spelling Bee is way more serious than horseshoes or hand grenades). That’s okay. You are still a rock star in my book, Snehaa! In fact, your misspelling of the word brought more light to the ancient Roman concept, because let’s face it, who remembers the words the spelling bee contestants spell correctly?
Now that we can all spell usucapion, it is worth talking about what it means. Usucapio in Roman law was the idea that possession of a corporeal thing for the requisite period of time could ripen in to dominium (full ownership) of the thing. The need for some means of acquiring ownership through possession arose in Roman law because of the strictness and inconvenience in how property, and particularly land, was conveyed. Usucapio, then, provided a private method of ensuring the transfer of ownership of land, even when there was a defect in the title.
Usucapio applied on to Roman citizens, though eventually a similar concept, prœscriptio, was developed for foreigners to acquire property. To acquire ownership through usucapio, one had to be in good faith (bona fiedes) and have a lawful origin for claiming ownership (iustus titulus). Property that was stolen could not be acquired through usucapio. Similarly, violence could not be used to acquire property via usucapio. Initially, the period of possession required for usucapion was only two years for immovable property like land, and one year for movable property. Eventually, though, Justinian altered the time periods to require ten years of possession if the true owner of the property as present, and twenty years of possession if the true owner was absent.
Usucapion, as is evident by now, is the analog for our modern doctrine of adverse possession. My guess is that most people won’t introduce usucapion into their 1L property classes. Having introduced the concept to my 1Ls before, my experience is that it doesn’t go over as well in practice as I think it will, but maybe that’s just me. Suffice it to say, I’ve never had a student say, “Wow, that’s so cool. Will you teach us more Roman law, please?” But, in thinking about modern adverse possession law, it is always helpful to remember the original purpose and application of the Roman equivalent. I know of no state in the United States that requires more time of possession when the true owner is away from his property, but if a goal adverse possession is trying to achieve is to put the true owner on notice that someone has a competing claim for her land, should we give the true owner more time when she is away? Or does our purpose of keeping land in commerce trump so that the reverse should be true? Should good faith matter? Lots of jurisdictions believe it does. Were the Romans right on that point? All great questions to think about as we continue to ponder the doctrine of adverse possession.
So thank you Scripps Spelling Bee and Snehaa for reminding us about the ancient origins of the modern doctrine. And a big thanks for making Roman law cool to talk about, even if only for a passing moment.
Sunday, May 29, 2016
Can property include a right to government regulation? An enormous amount rides on this question. Billions of dollars in transferable development rights, flood and landslide protections, patents, pollution credits, utility service areas, access roads, taxi medallions, and grazing permits: these are some of the valuable interests claimed as rights in regulation. Are they protected property?
This Article answers the question and constructs an overarching framework for evaluating asserted rights in regulation. It determines that courts and legislatures actually recognize some property rights in government regulatory actions. It then synthesizes these authorities to create administrable rules for assessing such claims. In doing so, it integrates and advances disparate strands of property scholarship and provides courts with meaningful guidance for addressing these important issues.
In Regulating Sharing: The Sharing Economy as an Alternative Capitalist System, Professor Rashmi Dyal-Chand challenges the assumption – implicit in the fast-growing legal literature on the “sharing economy” – that companies in this sector operate in the manner of traditional firms. Framing the sharing economy as a “nascent form of a coordinated market economy”, Dyal-Chand calls for regulation rooted in a deeper understanding of the institutions – both the technological platforms most commonly associated with the sharing economy (Uber, Airbnb, TaskRabbit, and their ilk) and a burgeoning collection of more organic and democratic organizations — that shape this economy.
This short invited Response focuses on the potential of this second category of institutions to achieve a more equitable distribution of the economic benefits of the sharing economy. While I agree that much can be gained from a more critical reflection on the nature of the institutions that shape the sharing economy, I harbor skepticism regarding the current vitality and future potential of these alternative institutions. I first explore how intermediary institutions might strengthen the position of workers in the sharing economy. I then express a few hesitations regarding the prospects of intermediary institutions to adequately counterbalance the technological platforms that dominate the sharing economy. Finally, I offer suggestions for how, by drawing on discussions of the role of institutions in other areas of legal doctrine; an “institutional turn” in thinking about the sharing economy might inform both legal scholarship and regulation.
Do “cultural factors” substantively influence the creation and evolution of property institutions? For the past several decades, few legal scholars have answered affirmatively. Those inclined towards a law and economics methodology tend to see property institutions as the outcome of self-interested and utilitarian bargaining, and therefore often question the analytical usefulness of “culture.” The major emerging alternative, a progressive literature that emphasizes the social embeddedness of property institutions and individuals, is theoretically more accommodating of cultural analysis but has done very little of it.
This Article develops a “cultural” theory of how property institutions are created and demonstrates that such a theory is particularly powerful in explaining large-scale institutional differences between societies. Empirically, it argues that, in the two centuries before large-scale industrialization, China, England, and Japan displayed systematic and fundamental differences in their regulation of property use and transfer. It further argues that these legal and institutional differences are best explained by certain aspects of social culture, specifically by the criteria for sociopolitical status distribution. Some of these criteria are distinctly “cultural” in the sense that they were probably generated by the widespread social internalization of moral values, rather than by utilitarian bargaining.
Cultural paradigms can exist, therefore, in property institutions. If we assume, as conventional law and economics urges, that individuals generally approach property use and regulation through a self-interested and utilitarian mindset, their pursuit of personal utility can nonetheless be constrained or empowered by cultural norms of status distribution that determine their relative bargaining power.
Wednesday, May 25, 2016
Friday, May 20, 2016
What a way to finish up the day! I'm now in a panel titled "Fun Property: How Property Can Increase Recreation, Health, and Happiness." What could be more fun than this?
The first paper is by Avital Margalit (Sapir) who is discussing her paper, Private Ownership in Sport Clubs: In Whom We Trust? As an avid sports fan, I am pretty pumped up about this paper. Margalit begins by questioning the private owners of sports teams and their decisions. Though Margalit is focused on futbol, I can't help but think about American football and owners' decisions, like the good decision the Saints made in acquiring Cody Fleener or the crazy QB situation the Eagles have put themselves in. But I digress. Margalit's comment on ownership of sports clubs is that the owner does not always make decisions in the best interest of the team and/or fans. Margalit questions whether there is some manner in which fans' interest could be considered in the owner's decision-making. Yes, the owner owns the club, but Margalit argues the fans make up the essence of the team. Without the fans, the team would not exist. To give the fans some say, Margalit has a number of different ideas, some of which have been implemented in some jurisdictions. The most interesting ideas she suggests are providing some ex ante mechanism by which owners agree to consider fans wants before making big, non-player decisions, such as whether to change team colors. Another possibility would be to have a fans association that gets a vote in big decisions.
Next up is Dave Fagundes (Houston) and his paper Property, Acquisition & Happiness. Turns out there have been lots of studies of hapiness and its connection to other areas of law (tort, crim, etc.), but no study on happiness and property, so Fagundes is filling in this gap. Fagundes finds that acquisition of more property does not increase our happiness. You read that correctly: levels of happiness and levels of wealth are not inherently directly correlated. Why? Fagundes provides a number of reasons. For example, the more things a person has, the less the person enjoys each individual thing. Another example is that happiness is really governed by how much you owe, not how much you own. Fagundes uses this information to then rethinkg different property law doctrines. First, he utilizes the relation of hapiness and property law to find out where is property law going wrong. For example, Fagundes asserts that to the extent American property law is incentivizing home ownership, and even multiple homeownership, that may be actually decreasing an individual's happiness. Fagundes then asks what does happiness tell us about what property law should we do right. For example, research has shown that a bigger house does not make an individual happier, but an individual can grow dramatically more unhappier if the individual has to sit in traffic. To the extent our policies strive to encourage home ownership and the homes people think they want to buy are in the suburbs, far away from the employer, perhaps our policies should instead be designed to encourage people to buy houses closer to employers so that the employees can avoid the commute which we know will make the individual unhappy.
Happiness continues into the next paper which discusses the right to the countryside. The third paper on this panel is Louise Burns (Dublin) who is presenting her paper Law, Landscape and the Common Good. Access to the Countryside for Recreation. Burns explains that in Ireland, there is a relatively recent concept of the "recreational user." A recreational user is someone who comes on property he/she does not own, just for the heck of it, usualy for accessing a beach or the hills. The recreational user is not up to no good, but just goofing off (i.e. having fun). The problem is that under Irish law, the recreational user gets no tort protection from the true owner if the recreational user is injured on the land of another. Thus, the law discourages individuals from accessing the countryside. Burns has taken on the task of interviewing land owners to find out their thoughts on whether recreational users should be allowed on their land. Not surprisingly, landowners are against having recreational users on their property and supportive of being free fom liability for any injuries that occur on their property.
Last up for today is Adam Sheppard (University of the West of England) and his paper Health Check or Reality Check? Planning, Health, and Decision Making. Sheppard begins by stating that when contemplating development decisions, health and well-being are being taken into account more and more. For example, in Bristol there are limits on where fastfood franchises can be set up, namely that they cannot be within a certain distance of schools if the location of the fastfood chain would negatively influence the students' food and health choices. The limits on fastfood locations have been somewhat limited because courts have allowed fastfood chains to be near schools if they will be closed at the times children are going to or from school or they meet other conditions. Moreover, Sheppard notes that using planning as a mneas of promoting healthy life styles has limited positive effects. For example, if fastfood chains are not allowed near schools, there is no similar regulation prohibiting Starbucks or grocery stores from being near schools, and children can purchase equally unhealthy items from Starbucks and grocery stores. Ultimately, Sheppard offers a hierarchy of questions that should be answered if planning is to be used to encourage healthy lifestyles, the primary question being normative, namely should the government be using planning to encourage individuals to make better lifestyle decisions. Sheppard takes the position that it is not a bad idea for the State to encourage healthy (or healthier) life style decisions, but he's skeptical of whether planning can achieve the goals desired.
Panels are done for the day, but tune in tomorrow for more live blogging of day two of ALPS!
Moving on to the second afternoon panel, moderated by Susan Bright (Oxford), first up is Abigail Jackson (Birmingham). Her presentation, titled "Balancing Rights and Obligations: Change and Residential Tenancy Agreements in the UK", noted that most landlord-tenant law in the UK is localized. She stated that despite recent reforms, not much has changed - tenancy agreements are typical today of what's been seen in the past. Abigail did say that Scotland is an exception because of their stronger protection for tenants. Scotland limits the permissible causes for a tenant eviction (no-fault is disallowed) and creates a cause of action for "wrongful termination." She then discussed England's Model Tenancy Agreement, a recent government initiative attempting to balance the rights of the two sides. Abigail argued, however that it will likely not be very effective but that it could provide some predictions of future policies. She lastly noted some recent legislative developments in Wales that were similarly less progressive. She posited that a less local-centric system of landlord-tenant law would produce better results.
Next up is a joint presentation by T Amodu and Kate McCarthy. Their talk, titled "Invading that Sole and Despotic Dominion? Private Landlords as Proxies for Government Actors", explored the early works of Blackstone that emphasized the absolute nature of property law, although noting the ability of civil society (through parliament) to limit rights. They then shifted to the right to rent in contemporary times by focusing on recent government initiatives to limit the rental rights of immigrants by placing some obligations on landlords. The concluded by stating their concerns with how recent regulatory events have caused a fragmentation and a harmful paradigm shift in traditional property law.
Lastly, Melissa Lonegrass (LSU) talked about classification in law and the reconceptualizing landlord-tenant law as property law in the US. She noted that lease law had its roots in common law property, but in the 1960s and 1970s there was a shift to a contract-based approach because it was thought that property law's strict rules were too inequitable and that contract law would be superior. She then notes that, in reality, contract law has not done the job very well due to the disparate bargaining power between landlords and tenants and the penchant of contract law to enforce the agreements between the parties without much policing. Melissa then noted that after this shift occurred in lease law, property theory underwent a great debate that challenged the conventional view of property as being exclusion-based. She then concluded by arguing that the progressive account of property - focused on human flourishing - might actually be well-suited to remedying the deficiencies in landlord-tenant law under contract law and that a shift back to property law would be beneficial.
Great conversation in the room about the important issues of landlord-tenant law. It was particularly interesting due to the fact that the speakers came from so many jurisdictions and therefore gave the audience a great survey of developments in this area of the law across many countries. On to the conference reception!! Looks like the weather is holding out!
Today's keynote address at ALPS is by Dave Cowan (Bristol). David is discussing his project, The Properties of Tenure, which he is working on with Alison Wallace (York) and Helen Carr (Kent).
Cowan (& Co.) take on the topic of shared ownership in their paper with the purpose of highlighting the human narrative that is frequently missing in property law theory, and more particularly highlighting the experience of marginal owners, i.e. those frequently considered property "outsiders." To do so, Cowan interviewed 71 shared owners over the course of one year to get their perspective on their situation.
It is important at the outset to understand what Cowan means by "shared owner." Shared ownership in the UK is the idea, as Prime Minister Cameron recently said, that one can part-rent, part-buy property, all with the aspiration of eventually becoming the full owner. Shared owners buy a percentage of their home while renting the remainder from a landlord, in Cowan's case, a social landlord.
The problem with shared ownership is that despite its aspirational goals, in reality shared owners are simply long-term lessors. Shared owners are rarely able to become full owners for a variety of reasons, most involving a lack of financial means. Because of this, shared owners are in a highly precarious position though they maintain high hopes.
What Cowan learned from his interviews is that even though the description provided for shared ownership is very "neat," the institution itself was very "messy." Shared owners were somewhere between true owners and true renters. They were not in social housing, but they were not in private housing either. Their sense of ownership came not from their four walls, but what was on those walls. It came not from their gardens, but from their movable house plants. Ownership for shared owners was shown through their stuff, their things.
Cowan's research highlights, among other things, two important items for property law. First, shared ownership reminds us that application of the law is messy. Try as we might to create clean boxes in our property law--one owns or rents--those neat, clean boxes do not always translate to the real world.
Second, it is the human experience that people themselves place value in more than the institutions we create. The things, the stuff, shared owners had is what formed their views of themselves as "owners" (however precarious their situation) and what distinguished them from non-owners.
Off to the next panel! More live blogging to follow!
Greetings, all, from Belfast! Picking up the baton from my co-blogger extraordinaire Sally, I'm sitting down for the first afternoon session. The line-up is great and Rashmi Dyal-Chand (Northeastern) is serving as moderator.
First up is Lorna Fox O'Mahoney (Essex Law School). Her project focused on getting into the details of property sharing, while thinking about identity issues. In unpacking the idea of sharing in the UK she discussed the right to roam, home sharing and implied trusts, implied easements and restrictive covenants, squatting and adverse possession, and motivation/identity. O'Mahoney notes that the idea of the right to roam is centered around recreational amenities, and only benefits a certain group. "It is the right to stop, but not to stay." She also added that although adverse possession is typically noted as a poster child for sharing, it practically only benefits "insiders." She traces historical developments where tools for sharing started to emerge that allowed outsiders to share in the promise of property, but political forces (mostly lead by insiders) suppressed them - focusing on the progression of the constructive trust as an example. O'Mahony concluded by framing England's sharing property law story and projecting what hope there might be for future property sharing in the UK.
Next up is Thomas Mitchell (Texas A&M) giving a presentation titled "the sentimental, cultural, and historical value of African-American owned land." He pointed out how, among other things, concepts like eminent domain, nuisance law, and zoning end up really only benefiting the privileged class to the exclusion of others. He followed up by noting that underepresented groups, particularly people of color, have suffered the most at the hands of property law's favoritism to certain groups. He gave a background on partition issues in the US and how the law has helped breakup communities and even deprive individuals of basic shelter. Thomas then discussed his work with a uniform act regarding partition of heirship property (adopted in 8 states) and how this was emblematic of policymakers addressing the disparities that the law has caused in the past.
Lastly was Tim Mulvaney (Texas A&M) who discussed the idea that ownership or other property rights should be impacted (even diminished) depending on the human stories at play. He pointed out the story of a homeless encampment on city-owned property in New Jersey that provided basic services for 6-years to persons who were living in poverty. Then the city filed a trespass action to have the tent city removed. Tim notes that traditional property law would clearly favor the city because of the preference for the rights of ownership. Taking note of the progressive property movement, he asserted that there is value in focusing less on the formalism of traditional property law and more on the relationship between the city and the homeless persons and the real survival interests of the displaced individuals. Tim pointed out that two major concepts were at play in the judge's decision in this case to ultimately allow the people to temporarily remain: reliance by the people on this property for housing and the necessity caused by massive unemployment and a failure by the city to provide for homeless persons (there were no shelters in this town). He concluded by noting that while this decision may have diverged from traditional property rules, it nevertheless introduces an example of how explicit considerations of human stories can play a role in property disputes.
Fabulous job to all three in contextualizing and challenging the development of the notion of "sharing" in property law going forward.
Greetings from Belfast! The ALPS 2016 conference is going fantastically. From yesterday's tour of Belfast and reception at the Titanic Museum to this morning's panel I sat in on that discussed social justice and inclusion in housing across the globe, everything has been wonderful. Great job to Robin Hickey (Queen's University) for his efforts in hosting this conference.
Right now I'm sitting in on a panel titled "Ownership of the Body." It's 10:30am Belfast time and what is a better way to keep the morning going than talking about the human body--dead or alive, as these papers cover both--and whether we can apply property rights to the human body?
The first paper is by Heather Conway (Queen's University). Conway is discussing her paper Earth to Earth, Ashes to Ashes . . . ? Property Rights in Cremains. Conway's paper covers property rights in dead bodies. As Conway notes, in the 1614 case of Haynes, there is no property right in a dead body, but there are possessory rights in the dead body. The purpose of the possessory right was primarily been for burial purposes. Because the right relates largely to burial, the right of possession is a relatively short-lived right (pun intended). Conway's question is the extent to which this possessory right-only applies to cremains. As Conway notes, ashes are very different from a dead body and the options for what one does with ashes is much more vast than the options for what one does with a deceased body. Given the differences in ashes and bodies, Conway asks whether a more traditional property theory can be applied to cremains. Can we say that ashes are property? Even if a dead body is not property, can the ashes--which are created from a dead body--be classified as property? Conway takes this question to the next level. Ashes can be converted into other things like jewelry, vases, etc. (Go to LifeGem.com to learn more about turning the carbon remains of your loved ones into anything you want.) Once ashes are converted to, for example, a ring, the ring is certainly property. Does this make the ashes themselves property? And if so, what does that say about the dead body that lead to the creation of the ashes? These, and more, are the questions Conway is pondering.
Next up is Jessica Roberts (Houston) presenting her paper, Genetic Ownership. Roberts' query regards how the law regulates ownership interests in genetic data, and, more specifically, whether the individuals who provide genetic data should have an ownership interest in that data. There's obviously a number of cases on property rights in genetic information (think Moore), and in all of these cases, the person providing the genetic data tried to assert a property right. Courts and bioethic scholars tend to reject the application of property rights in genetic information, but as Roberts points out, private genetic testing companies are starting to contractually grant certain property rights in genetic data. Moreover, President Obama commented in February that he "would like to think that if somebody does a test on [him] or [his] genes, that that's [his]." Thus, Roberts says that it is time to rethink whether property rights can be applied to genetic data. Roberts' project begins this reconceptualization of property rights and genetic data, utilizes different property theories to genetic data, and ultimately applies a human flourishing theory of property to genetic data as a means by which we can create ownership rights in genetic data.
Last up is co-blogger Steve Clowney (University of Arkansas) presenting his article, Does Commodification Corrupt? Clowney's presentation commmences by discussing how today we allow for the purchase of things that 100 years ago would have seemed strange. Think about story many folks gawked at in 2005 when the online casino Goldenpalace.com paid Karolyne Smith (allegedly) $15,000 to have the casino's URL permanently tattooed on her forehead. Today, Clowney says, we buy and sell things we would not have bought and sold 100 years ago. In doing that, Clowney argues we inherently commodify new things, like our foreheads. Clowney's question, then, is whether commodifying things corrupts. He uses three case studies to examine this question: high end art appraisers, prostitutes, and sellers of Christian artifacts. For the art appraisers, Clowney interiewed 20 high end appraisers and asked whether their occupation corrupted their appreciation of art. Answer: no; art appraisers love art even more than they did before they got into the art business. For sex workers, Clowney's results are not as conclusive (yes, if you are wondering, he did in fact interview a lot of prostitues) but generally he found that the sex workers he interviewed did not dislike physical activity they engaged in outside of their work life, and seemed to even enjoy it more. And, as you might expect, the same result regarding corruption held up for sellers of religious artifacts. Thus, Clowney concludes that while there may be many reasons to keep certain things out of the market, the fear that commodification may corrupt may be overrated.
Wednesday, May 18, 2016
Last week Conservation Partners released a report titled "The Disappearing West," which maps the amount of land developed across the eleven states of the American West from 2001-2011. According to the report, natural lands are developed at a rate of one acre every 2.5 minutes, or 432 square miles per year. California is unsurprisingly developing the fastest. More surprising is that Wyoming -- the least populated of the eleven western states -- is not far behind, due to rapidly expanding energy development in the state.
The map is worth exploring, if only to see how your favorite places might have changed during the first decade of the 21st Century.