PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

A Member of the Law Professor Blogs Network

Thursday, December 5, 2013

Top SSRN Downloads

SsrnIn honor of the beginning of the month here are the most downloaded property papers on SSRN over the last sixty days:

 

1.  [597 downloads] The Paper Chase: Securitization, Foreclosure, and the Uncertainty of Mortgage Title
      Adam J. Levitin (Georgetown)

2.  [346 downloads]  Trying Times: Important Lessons to Be Learned from Recent Federal Tax Cases
      Nancy A. McLaughlin (Utah) & Stephen J. Small (Independent)

3.  [280 downloads]  Basic Gift and Estate Tax Treatment of Joint Tenancies
      Bridget J. Crawford (Pace) & Michael Epstein (Independent)

4.  [96 downloads]  Ownership and Obligations: The Human Flourishing Theory of Property
      Gregory S. Alexander (Cornell)

5.  [95 downloads]  Contract and Property Law: Distinct, but not Separate
      Sjef van Erp (Maastricht)

6.  [72 downloads]  On Property Theory
      David Ellerman (Riverside – Philosophy)

7.  [64 downloads]  REMIC Tax Enforcement as Financial-Market Regulator
     Bradley T. Borden (Brooklyn) & David J. Reiss (Brooklyn)

8.  [63 downloads]  Koontz in the Mansion and the Gatehouse
      Steven J. Eagle (George Mason)

9.  [59 downloads]  The Phantom of the Foreclosure Crisis: Cancellation of Indebtedness Taxation
      Dustin A. Zacks (Independent)

10. [59 downloads]  Exactions Creep
      Lee Anne Fennell (Chicago) & Eduardo M. Penalver (Chicago)

December 5, 2013 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, October 6, 2013

October Professor's Corner Webinar: Common Interest Communities

It's that time again, this month's Professors’ Corner Webinar.  A FREE monthly webinar which features a panel of law professors, discussing recent cases or issues of interest to real estate or trust and estate practitioners and scholars.  Sponsored by the Legal Education and Uniform Laws Group of the ABA Real Property, Trust and Estate Law Section

Wednesday, October 9, 2013

12:30pm Eastern/11:30 am Central

This month's topic: Current Issues in Common Interest Communities

Register at http://ambar.org/professorscorner

Our October program, “Current Issues in Common Interest Communities,” features three outstanding scholars and three timely topics in the field of common interest development.

Paula Franzese is the Peter W. Rodino Professor of Law at Seton Hall University School of Law in Newark, NJ.  Prof. Franzese will explore the uneasy intersection of takings law and shorefront redevelopment in the context of the New Jersey Supreme Court’s recent decision in Borough of Harvey Cedars v. Karan.  In this case, a New Jersey shorefront town used its takings powers to condemn part of a family's oceanfront property to build an enhanced 22-foot-high dune to protect against the sorts of calamities wrought by Superstorm Sandy. Although the dune provides protection against future storm damage, it partially blocks the home's beach and ocean views. A jury’s award of $375,000 for reduction in view and value was reversed by the New Jersey Supreme Court, which held that the jury must assess not only the diminution in value suffered by the affected property owner but also the benefit conferred. To the extent that oceanfront owners reap the benefits, at taxpayers’ expense, of the dunes’ protection, how should that benefit be quantified appropriately to accommodate the loss of owners’ investment-backed expectations? 

Shelby Green is an Associate Professor of Law at Pace Law School in White Plains, NY.  Prof. Green will discuss the appropriate role of alternative dispute resolution within a common interest community.  Disputes within CICs are inevitable, but their amicable and efficient resolution is not.  Prof. Green will discuss two California cases, Chapala Management Corporation v. Stanton, 186 Cal. App. 4th 1532 (2010) and Grossman v. Park Fort Washington Ass’n, 212 Cal. App. 4th 1128 (2012), and how the cases demonstrate that two formal mechanisms—(1) the deferential standard of review (the business judgment rule) over decisions by managing boards and (2) the potential award of attorneys’ fees to the prevailing party—fail in their aim to channel disputes away from courts.  Prof. Green will also discuss whether current reform proposals, such as statutory ombudsman programs and ADR requirements as a prerequisite to suit, can readily facilitate the need for more amicable and efficient dispute resolution within CICs.

Andrea Boyack is an Associate Professor of Law at Washburn University School of Law in Topeka, KS.  Prof. Boyack will discuss the extent to which the law should enforce transfer restrictions in common interest declarations.  The law has traditionally enforced such transfer restrictions despite their impact on alienability, viewing such restrictions as appropriate means to address or control maintenance of property within the community and behavior of the community residents.  Prof. Boyack will argue that these concerns are better directly controlled through community use regulations and that courts should invalidate covenant restrictions that unjustifiably constrain the right to transfer, particularly when the community’s legitimate objectives could be accomplished through less intrusive means.

Register for this FREE webinar at http://ambar.org/professorscorner!  

Tanya Marsh

October 6, 2013 in Recent Cases, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 10, 2013

September Professor's Corner

It's time for this month's Professor's Corner, brought to you by the ABA Real Property Trust and Estate Law Section.  This month will be a little different because we are switching from audio only calls to webinars.   

Wednesday, September 11, 2013

12:30pm Eastern/11:30 am Central

Register online at http://ambar.org/professorscorner

September’s Program:  “Implications of Same-Sex Marriage for Real Estate and Trust/Estates Practitioners”

Either by court decree, legislative action, or referendum, same-sex marriage is now legally sanctioned in 13 states and the District of Columbia.  Thirty percent of American citizens now live in same-sex marriage jurisdictions.  Demographic trends suggest these numbers will likely increase in the years ahead.

The availability (or unavailability) of same-sex marriage presents challenges for lawyers handling real estate transactions and estate and tax planning for same-sex couples.  September’s Professors’ Corner webinar features two outstanding and highly-regarded experts to address these challenges.

Professor Patricia Cain, Santa Clara University School of Law.  Professor Cain is a national expert in federal tax law and sexuality and the law.  She previously taught for 17 years at the University of Texas and for 16 years at the University of Iowa, where she held the Aliber Family Chair in Law and also served as Interim Provost and later Vice Provost.  She has taught at Santa Clara since 2007.  Her area of specialization is taxation and estate planning for same-sex couples.  She is a Fellow of the American College of Trust and Estate Counsel, and is a frequent lecturer on tax and estate planning for same-sex couples at state and national CLE programs.

Tamara E. Kolz Griffin, Associate Director of the Estate Planning Clinic, Harvard Law School Legal Services Center.  Griffin received her law degree from Harvard and a LL.M. in Taxation from Boston University.  At Harvard, she teaches a seminar on estate planning and supervises clinical students in the areas of estate planning, permanency planning and probate matters.  She was previously a partner in the Private Wealth Services Section of the Boston office of Holland & Knight, LLP, and still maintains a private practice serving clients with estate planning needs.  She is a Fellow of the American College of Trust and Estate Counsel, and has given numerous presentations to national, state and local groups on matters related to same-sex estate planning.

Register for this FREE program at http://ambar.org/professorscorner and join us on Wednesday, September 11!

 I'll be hosting the call.  I hope you can join us!

Tanya Marsh

 

September 10, 2013 in Law Schools, Marital Property, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 7, 2013

August Professor's Corner Call

It's time to invite you to this month's Professors' Corner call, sponsored by the ABA RPTE Section.  From this month's host, Wilson Freyermuth:

Professors' Corner:   Wednesday, August 14, 2013

12:30pm Eastern/11:30am Central/9:30am Pacific

Call-in number: 866-646-6488

Passcode: 5577419753

Professors’ Corner is a monthly FREE teleconference sponsored by the ABA Real Property, Trust and Estate Law Section's Legal Education and Uniform Laws Group.  Each month’s call features a panel of law professors who discuss recent cases or issues of interest to real estate practitioners and scholars.

Our program on Wednesday, August 14 is “Real Estate Issues in the Bankruptcy Courts.”  Our panel will discuss the latest on several important real estate issues in bankruptcy, including the “absolute priority” rule in individual Chapter 11 cases; the “strip-off” of underwater liens in Chapters 11 and 13; and the artificial impairment and artificial classification in Chapter 11 cases.

Our panelists for the program include three leading bankruptcy scholars:

Professor Ralph Brubaker, University of Illinois College of Law.  Prof. Brubaker has taught at Illinois since 2004 after many years at Emory University Law School.  He has served as Interim Dean and Associate Dean for Academic Affairs at Illinois and most recently as the Guy Raymond Jones Faculty Scholar.  He will discuss a recent Fifth Circuit decision, In re Village at Camp Bowie I, L.P., and the extent to which a Chapter 11 debtor can “artificially” impair claims to facilitate cramdown of a reorganization plan and the status of the “artificial classification” doctrine.  Here are links to the cases that Prof. Brubaker will address: 

In re Village at Camp Bowie, 710 F.3d 239 (5th Cir. 2013)

http://www.ca5.uscourts.gov/opinions/pub/12/12-10271-CV0.wpd.pdf 

In re Greystone III Joint Venture, 995 F.2d 1274 (5th Cir. 1992)

https://bulk.resource.org/courts.gov/c/F2/995/995.F2d.1274.90-8529.html

In re Little Creek Development Co., 779 F.2d 1068 (5th Cir. 1986)

https://bulk.resource.org/courts.gov/c/F2/779/779.F2d.1068.85-1615.html 

In re Sun Country Development, Inc., 764 F.2d 406 (5th Cir. 1985)

https://bulk.resource.org/courts.gov/c/F2/764/764.F2d.406.84-1999.84-1978.html

Professor Bruce Markell, Florida State University.  Prof. Markell returns to teaching at FSU in 2013 as the Jeffrey A. Stoops Professor, after many years of service as a United States Bankruptcy Judge for the District of Nevada and as a member of the Bankruptcy Appellate Panel for the Ninth Circuit.  Prior to his service as bankrutpcy judge, Prof. Markell had a distinguished career as a law teacher at both Indiana University and UNLV.  He will address recent case developments involving the “absolute priority rule,” including whether the rule applies in individual Chapter 11 cases and Judge Easterbrook’s recent “new value” decision in In re Castleton Plaza.  Here are links to the cases that Prof. Markell will address: 

In re Lively, 717 F.3d 406 (5th Cir. 2013)

http://www.ca5.uscourts.gov/opinions/pub/12/12-20277-CV0.wpd.pdf

In re Castleton Plaza, LP, 707 F.3d 821 (7th Cir. 2013)

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2013/D02-14/C:12-2639:J:Easterbrook:aut:T:fnOp:N:1083443:S:0 

In re Shat, 424 B.R. 854 (Bankr. D. Nev. 2010)

http://www.nvb.uscourts.gov/downloads/opinions/bam-08-23136-shat.pdf

Professor Robert Lawless, University of Illinois.  Prof. Lawless has taught at Illinois since 2006, and previously taught at both Missouri and UNLV. He currently serves as the Associate Dean for Research and the Co-Director of the Illinois Program on Law, Behavior, and Social Science.  Prof. Lawless will address recent case developments regarding the ability of Chapter 11 and 13 debtors to “strip-off” underwater mortgage liens.

Tanya Marsh

August 7, 2013 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, July 8, 2013

Tragedy or Triumph in Post-Katrina New Orleans?

John Lovett of Loyola University New Orleans College of Law has published "Tragedy or Triumph in Post-Katrina New Orleans" in City Square, the online edition of the Fordham Urban Law Journal.  This short piece analyzes recent efforts to rebuild the city's affordable housing stock while diminishing racial segregation.  A really interesting article.  Check it out.

Tanya Marsh

July 8, 2013 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 22, 2012

Adverse Possession, Takings and the State

William Marra, Harvard Law School, has posted Adverse Possession, Takings, and the State on SSRN.

Here's the abstract:

Normally, the government may not seize private land without paying for that land. Yet it turns out that governmental bodies sometimes avail themselves of the laws of adverse possession, taking title to private land without paying the landowner. This phenomenon, largely ignored by the scholarly literature, raises two questions. First, should the government be allowed to adversely possess land in the same manner as private individuals? Second, when the government commits adverse possession, does this constitute a constitutional “taking” that requires the payment of just compensation? These two questions are of practical importance because they affect the resolution of numerous property claims, and they are of theoretical significance because they implicate both the appropriate scope of private property rights and the proper relationship between the individual and the state. Part I provides an introduction to adverse possession, and Part II studies the law of government adverse possession, detailing how nearly every jurisdiction permits the government to adversely possess private land in the same manner as private individuals. But as Part III demonstrates, government adverse possessors are not similarly situated to private adverse possessors, and the laws of adverse possession are built on a trio of assumptions — that the landowner has a property rule entitlement to her land, that the trespasser develops robust reliance interests, and that society’s primary interest is in quieting title — that do not necessarily hold when the government is the adverse possessor. Part IV concludes that because the current rules of adverse possession incentivize government trespass upon private land, special rules should apply to the government. When the government adverse possessor trespassed in good faith, a longer statute of limitations should apply; when the government trespassed in bad faith, it should be entirely denied the right to adverse possession. One quick fix to the problem, proposed by a federal court and endorsed by some commentators, is to call government adverse possession a constitutional taking and require the state to pay just compensation. Part V explains that the problem cannot so easily be wished away, and contends that the text of the Constitution, its history, and Supreme Court precedent all suggest that government adverse possession is not a taking. The solution to the problem presented by government adverse possession rests in righting property law, not distorting constitutional law.

By way of comparative comment:

  • It is interesting how "takings" issues are such a significant part of constitutional discourse in the US, and in my nearer neighbour, Australia.  New Zealand, without a formal written constitution, and without any "takings" provision, is in a different world in this sense.  I have recently been exploring how the absence of this regime makes it easier to "propertise" resources (and also regulate them without having to worry about compensation issues) for a forthcoming article for the New Zealand Universities Law Review.
  • Adverse possession was a part of my NZ Land Law course, as it remains part of US property courses.  In New Zealand the law is statute based, and there would be very few adverse possession cases in New Zealand: one of the recent ones concerned a fairly isolated block of farm land with a fence in the wrong place (rather than the "squatter's rights" (of an abandoned house, for example) I imagined at law school).
  • Marra hasn't steered away from takings.
  • An empirical study of adverse possession (comparative, Commonwealth or otherwise) would seem to deserve attention.
  • Images

Thomas Gibbons

May 22, 2012 in Adverse Possession, Articles, Miscellaneous, Property Theory, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 1, 2012

Henry's Myth

One of the benefits of a blog (I am told) is the chance to introduce topics and ideas I know I'll never have the chance to turn into full articles.  Here is the first - an abstract of the beginning of a response to Henry Smith's "Property as the Law of Things":

http://lawprofessors.typepad.com/property/2012/03/smith-on-property-as-the-law-of-things.html

"Henry’s Myth; or, The Baby, the Bathwater, and the Bundle of Rights

Professor Smith’s recent article “Property as the Law of Things” (2011) 125 Harv L Rev [forthcoming] argues that the legal realists’ notion of property as a “bundle of rights” should no longer be considered useful to property lawyers and jurists.  This paper argues otherwise, pointing out that (a) Smith has misrepresented the intellectual origins of the idea of property as a bundle of rights; (b) the “bundle” is more appropriately seen as a metaphor, rather than a description, and Smith has misrepresented this metaphor;  (c) Smith’s new “modular architecture” metaphor bears more resemblance than Smith will admit to the idea of the bundle; and (d) there remain a number of examples for which the bundle of rights is a better analogy than modular architecture.  This paper criticises the notion that the bundle of rights metaphor must give way to a modular architecture analogy as “Henry’s myth”, and concludes that we should not too easily abandon an enduring metaphor like the bundle of rights without being aware of what else might be lost: the bundle of rights remains something of a “baby” within the bathwater of property law theory."

Mostly, I think, it is just a good title.  It begins from an assessment that Smith - and others - treat the "bundle" as a realist idea, when the phrase significantly pre-dates the realists and the legal realist movementFurther, a bundle is something we can picture quite well - "agenda setting" (as per Katz) or "modular architecture" less soThat said, the abstract is less nuanced than an article would be (as Smith's article is itself more nuanced than its title).

Comments welcome, but as I said, it's not likely to be something I have time to turn into a proper article, so as much as anything, I hope perhaps someone else can pick up on it. 

Thomas Gibbons

May 1, 2012 in Articles, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 27, 2012

Ziff on the Numerus Clausus Principle

Bruce Ziff (Alberta) has posted Yet Another Function for the Numerus Clausus Principle of Property Rights, and a Useful One at That on SSRN.  Here's the abstract:

In recent years increased attention has been paid to the numerus clausus principle – the recognition of a limited, though not fully closed, set of property entitlements. An impressive number of rationales (eight by my tally) for that principle have already been offered. In this paper I claim that these arguments are incomplete. I argue that the presence of impediments to the termination of property rights suggests the need for caution in their initial recognition, because doctrinal mistakes cannot easily be corrected. On that view, numerus clausus serves as an instantiation of what is sometimes called the precautionary principle: an ounce of prevention is worth a pound of cure.

Steve Clowney

March 27, 2012 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, March 15, 2012

Rule on Airspace and the Takings Clause

Troy A. Rule (Missouri) has posted Airspace and the Takings Clause on SSRN.  Here's the abstract:

This Article argues that the U.S. Supreme Court’s takings jurisprudence fails to account for instances when public entities restrict private airspace solely to keep it open for their own use. Many landowners rely on open space above adjacent land to preserve scenic views for their properties, to provide sunlight access for their rooftop solar panels, or to serve other uses that require no physical invasion of the neighboring space. Private citizens typically must purchase easements or covenants to prevent their neighbors from erecting trees or buildings that would interfere with these non-physical airspace uses. In contrast, public entities can often secure their non-physical uses of neighboring airspace without having to compensate neighbors by simply imposing height restrictions or other regulations on the space. The Supreme Court’s existing regulatory takings rules, which focus heavily on whether a challenged government action involves physical invasion of the claimant’s property or destroys all economically beneficial use of the property, fail to protect private landowners against these uncompensated takings of negative airspace easements. In recent years, regulations aimed at keeping private airspace open for specific government uses have threatened wind energy developments throughout the country and have even halted major construction projects near the Las Vegas Strip. This Article highlights several situations in which governments can impose height restrictions or other regulations as a way to effectively take negative airspace easements for their own benefit. The Article describes why current regulatory takings rules fail to adequately protect citizens against these situations and advocates a new rule capable of filling this gap in takings law. The new rule would clarify the Supreme Court’s takings jurisprudence as it relates to airspace and would promote more fair and efficient allocations of airspace rights between governments and private citizens.

Ben Barros

[Comments are held for approval, so there may be some delay in posting]

March 15, 2012 in Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Monday, March 12, 2012

Miller on Building Legal Neighborhoods

Stephen-Miller

Stephen Miller (Idaho) has posted Building Legal Neighborhoods (Harvard Envtl Law Rev) on SSRN.  Here's the abstract:

Political and legal tools have emerged since the Seventies, and especially in the last two decades, that provide political and legal power to neighborhoods. However, these tools are often used in an ad hoc fashion and there has been scant analysis of how these tools might work together effectively. This article seeks to explore this trend, and further argues that cities consciously overlay these neighborhood legal tools. This approach is referred to in the article as a de facto “legal neighborhood.” This approach does not call for secession of neighborhoods from cities or for the wholesale privatization of public functions, as have others that argue for neighborhood empowerment. Rather, the article asserts that the collective operation of these neighborhood tools is greater than the sum of their parts, providing a method for civic engagement at a level city-wide politicians feel comfortable serving and in which residents feel comfortable participating. The article also provides approaches for linking the neighborhood to city and regional affairs, and a history and theory of the concept of the neighborhood as an argument for the important role and function of neighborhoods in American life.

Steve Clowney

March 12, 2012 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, March 5, 2012

Harris on the Regulatory Takings in Canada

Douglasharris
Douglas Harris (British Columbia) has posted A Railway, a City, and the Public Regulation of Private Property: CPR v. City of Vancouver (Book Chapter) on SSRN.  Here's the abstract:

The doctrine of regulatory or constructive taking establishes limits on the public regulation of private property in much of the common law world. When public regulation becomes unduly onerous — so as, in effect, to take a property interest from a private owner — the public will be required to compensate the owner for its loss. In 2000, the City of Vancouver passed a by-law that limited the use of a century-old rail line to a public thoroughfare. The Canadian Pacific Railway, which owned the line, claimed the regulation amounted to a taking of its property for which the city should pay compensation. The case, which rose to the Supreme Court of Canada in 2006, marked that court’s first engagement with the doctrine of regulatory taking (also known in Canada as de facto expropriation) in nearly twenty years. This chapter explores the intertwined histories of a railway company and a city that gave rise to CPR v. City of Vancouver. It then analyzes the court decisions and considers the role of courts in mediating the appropriate boundary between private property and public regulation in a jurisdiction where there is no constitutional protection for private property.

Steve Clowney

March 5, 2012 in Recent Scholarship | Permalink | Comments (1) | TrackBack (0)

Monday, February 27, 2012

Levitin & Wachter on The Commercial Real Estate Bubble

Adam Levitin (Georgetown) and Susan Wachter (Wharton) have posted The Commercial Real Estate Bubble on SSRN.  Here's the abstract:

Two parallel real estate bubbles emerged in the United States between 2004 and 2008, one in residential real estate, the other in commercial real estate. The residential real estate bubble has received a great deal of popular, scholarly, and policy attention. The commercial real estate bubble, in contrast, has largely been ignored.

This Article explores the causes of the commercial real estate bubble. It shows that the commercial real estate price bubble was accompanied by a change in the source of commercial real estate financing. Starting in 1998, securitization became an increasingly significant part of commercial real estate financing. The commercial mortgage securitization market underwent a major shift in 2004, however, as the traditional buyers of subordinated commercial real estate debt were outbid by collateralized debt obligations (CDOs). Savvy, sophisticated, experienced commercial mortgage securitization investors were thus replaced by investors who merely wanted “product” to securitize. The result was a noticeable decline in underwriting standards in commercial mortgage backed securities that contributed to the commercial real estate price bubble.

The commercial real estate bubble holds important lessons for understanding the residential real estate bubble. Unlike the residential market, there is almost no government involvement in commercial real estate. The existence of the parallel commercial real estate bubble presents a strong challenge to explanations of the residential bubble that focus on government affordable housing policy, the Community Reinvestment Act, and the role of Fannie Mae and Freddie Mac. Instead, the changes in commercial real estate financing closely mirror changes in the residential real estate financing, which shifted from regulated government-sponsored securitization to unregulated private securitization. This indicates that changes in the securitization market contributed to the problems in both the commercial and residential real estate markets.

Steve Clowney

February 27, 2012 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, February 6, 2012

Schleicher on Land Use Procedure

Schleicher_d
David Schleicher (George Mason) has posted City Unplanning on SSRN.  Here's the abstract:

Generations of scholarship on the political economy of zoning have tried to explain a world in which tony suburbs run by effective homeowner lobbies use zoning to keep out development, but big cities allow relatively untrammeled growth because of the political influence of developers. Further, this literature has assumed that, while zoning restrictions can cause "micro-misallocations" inside a metropolitan region, they cannot increase housing prices throughout a region because some of the many local governments in a region will allow development. But these theories have been overtaken by events. Over the past few decades, land use restrictions have driven up housing prices in the nation's richest and most productive regions, resulting in massive changes in where in America people live and reducing the growth rate of the economy. Further, as demand to live in them has increased, many of the nation's biggest cities have become responsible for substantial limits on development. Although developers are, in fact, among the most important players in city politics, we have not seen enough growth in the housing supply in many cities to keep prices from skyrocketing.

This paper seeks explain these changes with a story about big city land use that places the legal regime governing land use decisions at its center. Using the tools of positive political theory, I argue that, in the absence of strong local political parties, land use law sets the voting order in local legislatures, determining policy from potentially cycling preferences. Specifically, these laws create a peculiar procedure, a form of seriatim decision-making in which the intense preferences of local residents opposed to re-zonings are privileged against more weakly-held citywide preferences for an increased housing supply. Without a party leadership to organize deals and whip votes, legislatures cannot easily make deals for generally-beneficial legislation stick. Legislators, who may have preferences for building everywhere to not building anywhere, but stronger preferences for stopping construction in their districts, “defect” as a matter of course and building is restricted everywhere. Further, the seriatim nature of local land use procedure results in a large number of "downzonings," or reductions in the ability of landowners to build "as of right", as big developers do not have an incentive to fight these changes. The cost of moving amendments through the land use process means that small developers cannot overcome the burdens imposed by downzonings, thus limiting incremental growth in the housing stock.

Finally, the paper argues that, as land use procedure is the problem, procedural reform may provide a solution. Land use and international trade have similarly situated interest groups. Trade policy was radically changed, from a highly protectionist regime to a largely free trade one, by the introduction of procedural reforms like the Reciprocal Trade Agreements Act, adjustment assistance, and "safeguards" measures. The paper proposes changes to land use procedures that mimic these reforms. These changes would structure voting order and deal-making in local legislatures in a way that would create support for increases in the urban housing supply.

Steve Clowney

February 6, 2012 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, February 3, 2012

Ziff on the History of Caves and Property Rights Under the Earth

Bruce Ziff (Alberta) has posted The Great Onyx Cave Cases -- a Micro-History on SSRN.  Here's the abstract:

Controversies surrounding property rights to the Great Onyx Cave in Kentucky have given rise to two legendary decisions with enduring legal importance. The first of these, Edwards v. Sims (1929), is a leading authority on the extent of ownership rights below the surface of land. The second, Edwards v. Lee's Administrator (1936), concerns the appropriate measure of damages for trespass. Stripped to essentials, the facts that led to these two important rulings are quite straightforward: E discovered a cave beneath his surface, which he developed into a thriving tourist attraction. However, it turns out that approximately one-third of the cave passes below, well below, the surface of land owned by L, who had no ready means of access to the cave. Should title to the cave as a whole belong to the party who owns the mouth and who has taken possession? If not, how might one assess damages for trespass where E has benefited financially by the acts of trespass, but L has no practical use for his portion of the cave?

Of course, life is rarely as simple as that suggested by these sparse facts, and if one delves into the background of these famous cases -- a story that has been neglected over the years -- additional insights emerge. As it turns out, this dispute is one episode in a tempestuous time, the so-called 'cave wars' period, in which confrontations and lawsuits over cave rights and tourism in the region were commonplace. Moreover, the fight over Great Onyx Cave arose amid a campaign to acquire the caves in the region for a national park. As the clouds of the Depression formed, the park project must have held out hope for the local landowners. In addition, one member of the Kentucky Court of Appeals, Marvel Mills Logan, played a significant and somewhat unconventional role in the Great Onyx Cave litigation and the events surrounding it. His place in the story is examined in detail.

Steve Clowney

February 3, 2012 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, February 2, 2012

Recent SSRN Downloads

Ssrn

In honor of the beginning of the month, here are the most downloaded property papers on SSRN over the last 60 days:

 

1.  [452 downloads] Property Title Trouble in Non-Judicial Foreclosure States: The Ibanez Time Bomb?  
     Elizabeth Renuart (Albany)

2.  [137 downloads] A Bundle Theorist Holds On to His Collection of Sticks
     Stephen R. Munzer (UCLA)

3.  [134 downloads] Lumpy Property
     Lee Anne Fennell (Chicago)

4.  [132 downloads] Wills for Everyone: Helping Individuals Opt Out of Intestacy
     Reid K. Weisbord (Rutgers Newark)

5.  [113 downloads] Pluralism and Property
     Gregory S. Alexander (Cornell)

6.  [108 downloads] Two Cheers for the Bundle-of-Sticks Metaphor, Three Cheers for Merrill and Smith
     Robert C. Ellickson (Yale)

7.  [95 downloads] Saving Locke from Marx: The Labor Theory of Value in Intellectual Property Theory
     Adam Mossoff (George Mason)

8.  [66 downloads] Notice Failure and Notice Externalities
     Peter S. Menell (Berkeley) & Michael J. Meurer (Boston U.)

9.  [60 downloads] Book Review: Edward L. Glaeser, Triumph of The City: How Our Greatest Invention Makes Us Richer, Smarter, Greener, Healthier, and Happier
     David J. Reiss (Brooklyn)

10. [50 downloads] One Strike and You're Out: Padilla Advisement About Public Housing Eligibility
      Deirdre P. Brown (D.C.)

Steve Clowney

February 2, 2012 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 1, 2012

Hockett & Campbell Propose a Bridge Home Loan Assistance Program

Robert Hockett (Cornell) and Michael Campbell have posted The Home Mortgage Bridge Loan Assistance Act of 2012 on SSRN.  Here's the abstract:

Many homeowners now faced with the threat of foreclosure are only temporarily in distress owing to temporary income loss rooted in unemployment or underemployment. In consequence many foreclosures, along with their many harmful effects upon home prices as well as neighborhoods and families, can be avoided at very low cost through bridge loan assistance programs. Pennsylvania's highly successful HEMAP program, instituted in the early 1980s, is a conspicuous case in point. Our draft statute aims to replicate the benefits of HEMAP while also incorporating lessons learned in the several decades since HEMAP's implementation. The statute is to be considered by the legislature for adoption in the state of New York, and, we hope, might serve as a template for other state legislatures and Congress alike.

Steve Clowney

February 1, 2012 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 31, 2012

Jiang on Transfer on Death Deeds

Jennifer Jiang (UNC - student) has nice piece coming out in the UNC law review, entitled Transfer on Death Deeds: Benefit or Burden? A Proposal for Transfer on Death Deed Legislation in North Carolina.  Here's the abstract:

Real property is a unique concept upon which ideas of property ownership and testator rights have been added to form a multifaceted spectrum of law. An individual’s right to own and devise real property is rooted in common law principles and secured by expectations of testamentary freedom. In an effort to protect these rights, owners execute wills and trusts to maintain control of the distribution of their property after death. Once a will has been validated, probate ensures that justice is served by overseeing title transfers, creditor payments, and the distribution of property to beneficiaries. For better or worse, probate has historically been a fixture in property law. But the idea of subjecting one’s relatives and friends to the probate process has prompted some property owners to choose nonprobate methods of transferring real property.

Steve Clowney

(HT: Al Brophy)

 

January 31, 2012 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, January 19, 2012

Mossoff on Locke’s Labor Theory and Intellectual Propert

Mossoff_a
Adam Mossoff (George Mason) has posted Saving Locke from Marx: The Labor Theory of Value in Intellectual Property Theory (Social Philosophy & Policy) on SSRN.  Here's the abstract:

The labor theory of value is fundamental to John Locke’s justification for property rights, but philosopher Edwin Hettinger argued in an oft-cited article that it fails to justify intellectual property rights. In making this critique, though, Hettinger redefined Locke’s theory into a theory about proportional physical labor creating economic value, just as Robert Nozick, G.A. Cohen and other philosophers have done. In response to this strawman attack, this article describes Locke’s labor theory of value and how Locke himself applied it to intellectual property rights. It does so by analyzing the actual text of the Second Treatise, including many forgotten or neglected sections, and by integrating Locke’s property theory within the context of his natural law ethical theory, as presented in An Essay Concerning Human Understanding and in other works. In its proper context, Locke’s concept of labor refers to production, which is both an intellectual and physical activity. His concept of value refers to what serves the flourishing life of a rational being, which is a conception of the good that is more robust than merely physical status or economic wealth. Locke’s own text and philosophical arguments answer the absurdities imposed on him by Hettinger, Nozick, Cohen and others. Even more important, understanding his labor theory of value explains why Locke expressly approves of inventions in his property theory and why he explicitly argues that authors have property rights (copyrights) in their writings, which are arguments that are seemingly lost on his modern critics.

Steve Clowney

January 19, 2012 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, January 13, 2012

Owley on Exacted Conservation Easements

Owley_jessica
Jessica Owley (Buffalo) has posted Exacted Conservation Easements: Emerging Concerns with Enforcement (Probate & Property) on SSRN.  Here's the abstract:

Enforceability of exacted conservation easements is uncertain. Legislators, activists, and academics did not contemplate the proliferation of exacted conservation easements when enacting, advocating for, and writing about state conservation easement statutes. Despite this early oversight, exaction has become one of the most common ways that conservation easements come into being. Enforceability of exacted conservation easements is a threshold question of analysis for the continued use of the tool. Assessing the validity, and thus legal enforceability, of the exacted conservation easements involves examining the state’s conservation-easement statutes and state servitude law as well as the underlying permit scheme.

This article presents a roadmap for investigating the enforceability of exacted conservation easements and makes three suggestions for improvement. First, states should address exaction in their state conservation-easement acts. Second, drafters should increase the precision and detail of the agreements, acknowledging and explaining the nature of the exaction and the underlying permitting law. Third, to clarify the elements and uses of exacted conservation easements to both agencies and citizens, government agencies that use exacted conservation easements should promulgate regulations related to their use. Such regulations should include ensuring that permit issuers retain third-party right of enforcements. This will keep the permitting agency involved even if it is not the holder of the exacted conservation easement.

Uncertainty in enforceability of exacted conservation easements calls into question their use as a method of land conservation. Furthermore, the questionable validity of exacted conservation easements indicates that the permits relying upon such exactions could be ill advised and potentially in jeopardy.

Steve Clowney

January 13, 2012 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 11, 2012

Richardson on Virtual Property in Community Property States

RichardsonSally Richardson (Skadden) has posted How Community Property Jurisdictions Can Avoid Being Lost in Cyberspace (Louisiana Law Review) on SSRN.  Here's the abstract:

This Article serves as the second Article in a three-part series on the issues virtual property raises in community property regimes. Building on Classifying Virtual Property in Community Property Regimes: Are My Facebook Friends Earnings, Profits, Increases in Value, or Goodwill?, this Article examines how community property jurisdictions should govern virtual property once it has been classified as community property. In doing so, the Article discusses how virtual community property should be managed and explores when such property should fall subject to rules of equal management, joint management, or sole management. Further, the Article considers how virtual property should be divided and valued at the termination of a community.

Steve Clowney

January 11, 2012 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)