Thursday, July 21, 2016
This Article argues that our primary federal subsidized housing production program, the Low-Income Housing Tax Credit (LIHTC), will result in the unnecessary forfeit of billions of dollars of government investment and the potential displacement of tens of thousands of households beginning in 2020 when LIHTC property use restrictions start to expire. The LIHTC example is presented as a case study of an inherent dynamic of public-private partnerships—namely, the potential capture by for-profit providers of “residual value.” For purposes of this Article, this is value generated by a public-private transaction that is unnecessary to incentivize a private provider to deliver the contracted for good or service.
Drawing on corporate organizational theory, which has highlighted the role that nonprofits play in solving certain contract failures and generating positive externalities, the Article argues that, in certain contexts, partnering with nonprofit providers can be an effective approach to increasing the share of residual value that flows to public purposes. The LIHTC program is one such context, given that a nonprofit preference results in a three-sector approach whereby the federal government provides tax credits to nonprofit developers that must attract private investor equity. This framework leverages institutional strengths, including the access to capital of government, the relative fidelity to public purposes of nonprofits, and the market-based underwriting and oversight of for-profit investors.
Monday, July 18, 2016
Carol Necole Brown (Richmond) and Dwight H. Merriam (Robinson+Cole LLP) have posted On the Twenty-Fifth Anniversary of Lucas: Making or Breaking the Takings Claims (Iowa Law Review) on SSRN. Here's the abstract"
My review of more than 1,600 cases in state and federal court reveals only twenty-seven cases in twenty-five years in which courts found a categorical regulatory taking under Lucas. By percentage, that works out to a Lucas claim success rate of just 1.6 percent. This does not mean Lucas is unimportant, however. Rather, the paucity of successful Lucas claims itself tells a significant story about the importance of pleading takings claims. I contend that Lucas’ most enduring value is not its contribution to the positive law but rather its effect on how litigants shape their cases. A crucial aspect of the Lucas categorical regulatory takings analysis has been, and will continue to be, the problem of defining the denominator in the regulatory takings equation. My research suggests that Lucas’ holding incentivizes the private contractual agreements entered into by property owners to shrink the takings denominator and tilt the scales slightly in favor of the plaintiff. The ability of a property owner to reduce the denominator remains the loadstar for a Lucas case-winning strategy.
This is important for not only theorists but also for practitioners to know — those who litigate and conduct transactions in Lucas’ shadow.
Thursday, July 7, 2016
Seemingly overnight, companies like Uber, Lyft, Airbnb, WeWork, Taskrabbit, Shyp, and many others have transformed transportation, accommodations, personal services, and other sectors. The evolving regulatory response to this “sharing economy” presents an intriguing puzzle. Where telephone, broadband, early Internet companies, and similar previous technologies were shaped by battles with federal regulators, the fate of sharing enterprises is playing out in front of taxi and limousine commissions, zoning boards, and city councils.
The reason for this atypical dynamic, this Article argues, is that — unlike prior technological disruptions — the sharing economy is fundamentally an urban phenomenon. The platforms that enable sharing leverage or confront conditions of density, proximity, specialization, and even anonymity that mark city life. And many sharing companies flourish through a kind of regulatory arbitrage that finds value in frictions and barriers generated by urban regulatory regimes.
A fascinating experimentalist dialectic is emerging from the resulting decentralized regulatory landscape. Local economic, political, legal, and social conditions are generating regulatory responses that range from full embrace to open hostility. And sharing enterprises are responding by adjusting their business models and reconciling in various ways to these regulatory constraints. These compromises are generating creative solutions to balancing innovation and public welfare.
The interaction between urban governance and the sharing economy, however, flows both ways. Local governments are being pushed to be more transparent about their policy interests, creating spillover effects in regulatory regimes beyond the sharing economy. And the sharing economy is transforming cities themselves. The shift from ownership to access is altering development and mobility patterns as traditional links between transportation, housing, and labor markets and the shape of metropolitan space morph.
By framing the sharing economy as an urban phenomenon, this Article sheds important new light on a rapidly emerging scholarly discourse. To date, scholars have failed to recognize the sharing economy’s deep reliance on the urban fabric and its potential to mold that fabric. Understanding this relationship will also lead to better calibrated regulatory responses that reflect the sharing economy’s holistic impact on cities. Equally important, it will firmly ground our understanding of the sharing economy in its urban birthplace as it matures.
Edward W. De Barbieri (Brooklyn Law School) has posted Do Community Benefits Agreements Benefit Communities? (Cardozo Law Review) on SSRN. Here's the abstract:
Community Benefits Agreement (CBA) campaigns and public discussions about community benefits are becoming the norm in deciding how large urban projects are built outside of formal public land use approvals. CBAs have revolutionized land use approvals for large, public-private economic development projects: now developers and coalitions representing low-income communities can settle their disputes before formal project approval. As a result, CBAs are now commonplace nationwide.
Legal scholarship, however, has failed to keep up with these important developments. This Article aims to do just that by examining how CBAs, when properly negotiated, lower transaction costs, enhance civic participation, and protect taxpayers. It argues that CBAs achieve all these outcomes well, and more efficiently than existing government processes. Indeed, this Article’s central argument is that to the extent that scholars have analyzed CBAs, their analyses have gone astray by either dismissing CBAs as harmful to communities or by focusing on the role of the state in negotiating what really should be a private contract between a coalition of community groups and a developer. It is a mistake to give the state’s role in CBAs primacy over the community coalition because the inclusion of government in the CBA bargaining process creates a host of constitutional protections for developers — namely that the community benefits must be connected to and proportional with the instant government approval.
This Article places focus back on CBAs as private contracts enforceable by inclusive and representative community coalitions. It presents a case study of a successful CBA negotiated for the development of the Kingsbridge National Ice Center in the Bronx. This Article proposes a framework for assessing the impact of CBAs in economic development — one that recognizes the nuanced role that states and municipalities play in the formation and enforcement of CBAs. The framework focuses on the extent to which CBAs (1) lower transaction costs by effectively resolving disputes among developers and community groups, (2) increase civic participation in public processes, (3) protect taxpayers, and (4) avoid government intervention and constitutional protections for developers. This Article concludes with recommendations for the appropriate, limited role of government in CBA negotiations.
Friday, July 1, 2016
When a city undertakes a development project, low income and homeless persons face risks of expulsion. Public and private developers often target low-income neighborhoods and public lands because those spaces are viewed as economically more attainable or available for development. Moreover, the legal system's preference to treat disputes as individual entitlement claims tends to relegate disputes to broad questions of entitlements rather than unpacking the impacts that property changes have on the vulnerable populations. Whether by gentrification or by enhancement of city infrastructure, developer decisions disrupt what are already unstable living environments by imposing increased costs of relocation. These changes also destabilize community relationships by separating individuals and families from their support networks, local transportation options, and local employment that they have come to rely on. In short, low-income and homeless persons find themselves even more destabilized when public and private development projects force their evacuation from where they live. This article argues that though development may be necessary, it should not be undertaken without more serious evaluation of the human impacts in relation to the space. Such evaluations should include the impact on communities, employment, education, and environment for impacted persons. Importantly, failure to take notice of these impacts continues to promote cycles of poverty that plague American cities.
Drawing on similarities in the environmental context, the article argues that a NEPA-like approach to human housing can offset externalities that homeless persons and those living in low-income housing are forced to internalize through environment changes. Amongst those impacts are the imbalance between the well-funded developer and low income populations; the view that low income properties can be classified as nuisance-type properties; and the tendency to only consider the highest best use of property as the rationale for development. The article concludes by offering model legislation that could be implemented to provide a NEPA like assessment to city development.
And here's his TED Talk. Good job, Marc!
Sunday, June 26, 2016
Dwight Newman (Saskatchewan) has posted The Economic Characteristics of Indigenous Property Rights: A Canadian Case Study (Nebraska Law Review) on SSRN. Here's the abstract:
Legal and economic scholars have increasingly drawn attention to the impact of property rights issues on economic prosperity for Indigenous communities around the world. In the context of a constitutional provision entrenching Indigenous rights in a state whose resource industries have an international strategic significance, Canadian courts have been and are currently engaged in a process of creatively developing the parameters of various Indigenous rights, including Indigenous property rights. This Article will argue that in doing so, they have developed certain characteristics on those property rights that seemingly undermine Indigenous communities’ own opportunities to make economically beneficial choices concerning uses of their own lands for resource development. The Article will ultimately suggest that this case study raises concerns about the idea of courts focused on public law considerations being positioned so as to develop the private law characteristics of Indigenous property rights. To do so, focusing first on the Supreme Court of Canada’s landmark Aboriginal title decision in the Tsilhqot’in case, Part II of this Article engages first in the complex legal doctrinal task of trying to unpack certain aspects of just what the Court actually said on Aboriginal title and its parameters. Part III builds upon that description of the nature of the Aboriginal title property right and related writing by economic scholars to consider the economic implications of characteristics of that property right, which exhibits — relative to what would have been possible with different drafting of the judicial rules — uncertainties of scope and incentivization of attempts to create further uncertainty, simultaneous imposition of roles to multiple decision-makers on uses of the property and of surprisingly fragmented ownership characteristics, and significant restrictions on alienability of property rights. These characteristics may lead to significant economic consequences both in the context of Indigenous communities contracting with outsiders (such as with resource development proponents) and in the context of members’ own use of the land. The latter parts of Part III try to show the practical consequences for specific resource developments that might be considered by Indigenous communities, such as in the context of a mining development. Part IV, engaging with broader law and economics scholarship on the efficiency of common law adjudication processes, tries to offer some explanations of why the courts are developing these rights in ways that have these economic characteristics, in part by showing how the context in which they are operating is distinct from traditional common law contexts in which scholars have shown why courts have developed legal doctrines that fit more closely with economic efficiency. Part V tries to offer some policy responses that could help to promote the development of more economically functional property rights for Canadian Indigenous communities. Although the particular discussion is situated within Canadian legal doctrine, it will also conclude by referencing broader implications, both for American resource investors and for analogous contexts elsewhere in the world, including for the possibility that courts are not best situated to develop the shape of Indigenous property rights when their adjudicative processes are structured in certain ways.
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.
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.
Wednesday, May 25, 2016
Thursday, May 5, 2016
This article considers fragmented property systems – the phenomenon of contested, separated or overlapping sub-systems within a national property jurisdiction. One example is circumstances of property despite law. Globally, as many as a billion people claim de facto property without recognition by law in urban informal settlements and agro-pastoral or forested areas. Another example is property without transition to law. Many households in the developing world regulate land markets through local mechanisms notwithstanding opportunities or requirements to use law. The article provides a conceptual frame for the emergence of property system fragmentation based on the private coordination of property relations. The article argues that fragmentation emerges in complex property systems where law attempts to displace property coordination mechanisms, but fails to induce a critical mass of property participants to alter coordination strategies. A focus on coordination provides a means to combine the methodological individualism of economic narratives with collective variables highlighted by other perspectives on property such as anthropology and complex systems theory.
Monday, May 2, 2016
Wei Wen (University of New England) has posted How American Common Law Doctrines May Inform Mainland China to Achieve Certainty in Land Sale Contracts (Asian-Pacific Law & Policy) on SSRN. Here's the abstract:
This paper explores one of the most significant problems confronting Mainland China in relation to contract and property law today, which is, whether or not written form is mandatory for land sale contracts. In practice, Chinese courts have delivered contradictory cases in relation to contractual form. Some courts regard the written form as being mandatory and therefore no contractual remedies are available to enforce oral land sale contracts. In contrast, other courts hold the opposite view that oral contracts may still have some degree of contractual effect. This results in uncertainty throughout Mainland China, which may cause injustice and unfairness to claimants and may undermine the authority of the law and the courts. This paper argues that the solution to the problem is to propose a legal reform initiative to articulate that written form is mandatory for land sale contracts. This initiative will end the contradictory cases and ensure claimants are treated equally at law in this particular matter.
In order to support and underpin the legal reform initiative, this paper utilizes American doctrines to enrich the Chinese literature and draws on the American experience (particularly Professor Lon Fuller's and Professor Karl Llewellyn's analysis) in establishing that written form is desirable for land sale contracts in Mainland China. This is through a comparative law approach known as functionalism that examines the similarities and differences of the compared jurisdictions.
Sunday, April 24, 2016
Chris Odinet (Southern) has posted The Unfinished Business of Dodd-Frank: Reforming the Mortgage Contract (SMU Law Review) on SSRN. Here's the abstract:
The standard residential mortgage contract is due for a reappraisal. The goals of Dodd-Frank and the CFPB are geared toward creating better stability in the residential mortgage market, in part, by mandating more robust underwriting. This is achieved chiefly through the ability-to-repay rules and the “qualified mortgage” safe harbor, which call for very conservative underwriting criteria to be applied to new mortgage loans. And lenders are whole-heartedly embracing these criteria in their loan originations — in the fourth quarter of 2015 over 98% of all new residential loans were qualified mortgages, thus resulting in a new wave of credit-worthy homeowners that are less likely than ever before to default. As a result of this and other factors, the standard form residential mortgage contract, with its harsh terms and overreaching provisions, should be reformed. This is necessary not only due to the fact that such terms should no longer be needed since borrowers are better financially positioned than in the past, but also because of a disturbing trend in the past few years where lenders and their third party contractors have abused the powers accorded to them by the mortgage contract — mostly through break-in style foreclosures. This Article argues for a reformation of the Fannie Mae/Freddie Mac standard residential mortgage contract and specifically singles out three common provisions that are ripe for modification or outright removal.
April 24, 2016 in Common Interest Communities, Home and Housing, Law & Economics, Mortgage Crisis, Real Estate Finance, Real Estate Transactions, Recent Cases, Recent Scholarship | Permalink | Comments (0)
Thursday, December 5, 2013
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)
7. [64 downloads] REMIC Tax Enforcement as Financial-Market Regulator
Bradley T. Borden (Brooklyn) & David J. Reiss (Brooklyn)
9. [59 downloads] The Phantom of the Foreclosure Crisis: Cancellation of Indebtedness Taxation
Dustin A. Zacks (Independent)
Sunday, October 6, 2013
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!
Tuesday, September 10, 2013
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!
Wednesday, August 7, 2013
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
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)
In re Greystone III Joint Venture, 995 F.2d 1274 (5th Cir. 1992)
In re Little Creek Development Co., 779 F.2d 1068 (5th Cir. 1986)
In re Sun Country Development, Inc., 764 F.2d 406 (5th Cir. 1985)
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)
In re Castleton Plaza, LP, 707 F.3d 821 (7th Cir. 2013)
In re Shat, 424 B.R. 854 (Bankr. D. Nev. 2010)
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.
Monday, July 8, 2013
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.
Tuesday, May 22, 2012
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.
Tuesday, May 1, 2012
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":
"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 movement. Further, a bundle is something we can picture quite well - "agenda setting" (as per Katz) or "modular architecture" less so. That 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.
Tuesday, March 27, 2012
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.