Tuesday, November 2, 2021

Job Posting: Waldo Chair in Property @W&M

This just in from our friends at William & Mary:


William & Mary Law School seeks applications from distinguished scholars for the Joseph T. Waldo Chair in Property Rights Law. Candidates should have an outstanding record in scholarship, teaching, and service, with a focus in their scholarship on the role of property rights in the constitutional or common law order and should currently hold a faculty appointment with tenure.

The holder of the Waldo Chair will be responsible for directing the Law School’s Property Rights Project, which includes the annual Brigham-Kanner Property Rights Conference, the annual Property Rights Journal, and other activities that promote discourse on the relationship of property rights to fundamental liberties and societal well-being.

For questions about the Waldo Chair or to begin the application process, contact Lynda Butler, Chancellor Professor of Law, Emerita, and Chair of the Waldo Chair Subcommittee, atwmlawappts@wm.edu and include “Waldo Chair” in the subject line. For more information about William & Mary and faculty positions, see https://jobs.wm.edu/postings/40644.

November 2, 2021 | Permalink | Comments (0)

Sunday, October 24, 2021

New Book Alert!

9781108987448Ezra Rosser (American) just shared his new book, A Nation Within: Navajo Land and Economic Development (Cambridge University Press 2021). The book's summary is as follows:

In A Nation Within, Ezra Rosser explores the connection between land-use patterns and development in the Navajo Nation. Roughly the size of Ireland or West Virginia, the Navajo reservation has seen successive waves of natural resource-based development over the last century: grazing and over-grazing, oil and gas, uranium, and coal; yet Navajos continue to suffer from high levels of unemployment and poverty. Rosser shows the connection between the exploitation of these resources and the growth of the tribal government before turning to contemporary land use and development challenges. He argues that, in addition to the political challenges associated with any significant change, external pressures and internal corruption have made it difficult for the tribe to implement land reforms that could help provide space for economic development that would benefit the Navajo Nation and Navajo tribal members.

October 24, 2021 | Permalink | Comments (0)

Tuesday, September 28, 2021

What Property Law Has To Say About NFTs

Juliet Moringiello (Widener-Commonwealth) and Chris Odinet (Iowa) have posted The Property Law of Tokens (Florida Law Review) on SSRN. Here's the abstract:

Non-fungible tokens—or NFTs, as they are better known—have taken the world by storm. The idea behind an NFT is that by owning a certain thing (specifically, a digital token that is tracked on a blockchain), one can hold property rights in something else (either a real or intangible asset). In the early part of 2021, NFTs for items ranging from a gif of a pop-tart cat with a rainbow tail, to Twitter CEO Jack Dorsey’s first tweet, to a New York Times column (about NFTs!) have sold for millions of dollars over the internet. Promoters assert that NFTs are the “future of digital property,” and that they herald a day when “government will lose its unique power to mint currency and protect property.” And these promoters reach beyond the typical crypto crowd. Giants of finance and industry are promising to extend the use of NFTs to securities, industrial assets, and real estate in the coming years. Moreover, this crypto token craze comes at a time when the American Law Institute and the Uniform Law Commission are in the midst of recommending revisions to U.S. commercial law to accommodate the digital age. In this Article, we take a more sober look at the tokenization phenomenon and, in doing so, describe what exactly it means when it comes to property rights. What can a purchaser of a token expect? How is a token actually connected to the underlying asset, if at all? What does the law—not the hype—have to say about it? We show that tokenization under the law actually has a long history, backed by practical economic considerations and animated by strong theoretical underpinnings. We also show that NFTs have neither of these attributes. Additionally, our Article surveys a dataset of terms of service from the most prominent NFT platforms in order to exploit both their disconnect from real legal effects and their puzzlingly contradictory promises about the relationships between buyers, seller, and the platform. Our project aims not only to inform current commercial law reform efforts, but it also offers a policy prescription for policing the NFT market.

September 28, 2021 | Permalink | Comments (0)

Wednesday, August 4, 2021

CFP: Progressive Perspectives on Local Economic Development Moving Forward

AALS Section on State and Local Government Law
2022 AALS Annual Meeting
Call for Proposals

Program Description: The AALS Sections on State and Local Government Law and Community Economic Development are seeking speakers for our joint main program at the 2022 AALS Annual Virtual Meeting, “Progressive Perspectives on Local Economic Development Moving Forward.”  This program will explore new ideas for local governments to consider with respect to economic development in a post-pandemic era. The session will focus on law reform and scholarship that seeks to build forward-looking movements that create inclusive economic development, and considers the relevance of core legal tensions concerning regionalism and localism, the limits of government intervention in the economy, impacts of market forces on policy, and similarities and differences to past periods of local growth. The program is intended to be broad in focus. Potential topics include: 

  • What economic development structures did COVID-19 expose as not meeting community needs? How did plans change at the time during the COVID-19 pandemic and how does that inform what should be done for the future (in a progressive, big thinking way)?   
  • How might contested relations between states and localities limit new ideas about local economic development?  
  • What is the role of regionalism as a concept and regional institutions in practice in fostering/frustrating local economic development?   
  • How can economic development tools and process be used to address past economic inequality and ensure future equitable distribution of economic growth?  
  • How does resiliency fit into the conversation around economic development?  

Submission Guidelines: If you are interested in participating, please send a 250-500 word abstract of your proposal. Scholarship associated with the proposal may be at any stage of the publication process from work-in-progress to completed article, but if already completed, scholarship may not be published prior to the Annual Meeting. We welcome legal scholarship across a wide variety of methodological approaches and encourage untenured scholars in particular to submit their work. Each potential speaker may submit only one abstract for consideration. Abstracts must be submitted by Friday, August 20, 2021. Abstracts should be submitted electronically in Microsoft Word format to both Kellen Zale (kbzale@central.uh.edu)and Ted De Barbeiri (edeba@albanylaw.edu). The subject line should read “AALS 2022Joint Program Submission: Local Economic Development.” Submissions will reviewed by members of both Sections’ Executive Committees, and the selected presenters will be notified by early September. Speakers are responsible for paying their own registration fees (AALS will be offering school-wide registration again this year).

August 4, 2021 | Permalink | Comments (0)

Friday, July 16, 2021

Hofstra Hiring in Property Law

The Maurice A. Deane School of Law at Hofstra University seeks to fill one or more tenure-track positions.  We will consider all subject areas but primarily seek candidates with research and teaching interests in Torts, Property, and other first year courses such as Contracts, Criminal Law, and Civil Procedure. The Law School is particularly interested in faculty members who also have research and teaching interests in Environmental Law, Bankruptcy and/or Commercial Law. All candidates must have a strong commitment to serious scholarship. We are particularly interested in candidates who willenhance the diversity of our faculty.

As a leading national and regional educational institution, Hofstra Law is a distinguished center of legal scholarship in the service of justice and is committed to serving its local communities (which include Americans from a wide range of ethnic backgrounds and range from extraordinary affluence to entrenched suburban poverty), participating in the national scholarly dialogue, and educating attorneys for the local bar as well as the broader national  community. Hofstra Law recently completed a successful multiyear capital campaign and the University has recently opened new schools of medicine, public health and engineering. 

Candidates should send a cover letter and resume, including a description of areas of interest, and copies of representative works to Professor Linda Galler, Chair of the Faculty Appointments Committee, LawSchoolFacultyJobs@hofstra.edu.

Hofstra University is an equal opportunity employer, committed to fostering diversity in its faculty, administrative staff and student body, and encourages applications from the entire spectrum of a diverse community.

July 16, 2021 | Permalink | Comments (0)

Thursday, July 1, 2021

WashU Hiring in Property Law

Just in from Danielle O'Onfro (WashU):

WASHINGTON UNIVERSITY SCHOOL OF LAW invites applications from entry-level or junior lateral candidates for tenure-track positions, to begin in the fall of 2022. We will consider candidates in all subject areas, but we are particularly interested in private law, including property, torts, and contracts, as well as evidence, civil procedure, and other areas of teaching need.

We are also searching for candidates at all levels whose scholarly agendas sit at the intersection of race, law, and social inequality, and who would be hired in connection with Washington University’s Race and Ethnicity Cluster Hire Initiative. More information about this initiative is available at https://provost.wustl.edu/programs-initiatives/faculty-diversity/race-and-ethnicity-cluster-hire-initiative/ and at https://source.wustl.edu/2021/06/first-race-and-ethnicity-cluster-hires-arrive-at-washington-university/.

Candidates must have at a minimum a JD, a PhD, or the equivalent in a related field. In addition, candidates should have strong scholarly potential and a commitment to excellence in teaching. Duties will include teaching assigned courses, researching and publishing scholarly work, advising students, and participating in law school and university service. The strong candidate will demonstrate the ability to create inclusive classrooms and environments in which all students can learn and thrive. The committee will be reviewing applications submitted through the AALS Faculty Appointments Register but we are also willing to consider materials submitted outside of the FAR process.

Candidates who are not applying through the FAR process may submit applications directly to Professor Daniel Epps, Chair of the Appointments Committee, Washington University School of Law, by emailing them to lawappts@wustl.edu. Although there is no deadline, applications from candidates not participating in the FAR process will have the best chance of full consideration if they are received by August 18, 2021. Application materials should include a cover letter, a resume which includes at least three references, and a job-talk paper if available.

Washington University in St. Louis is committed to the principles and practices of equal employment opportunity. It is the University’s policy to recruit, hire, train, and promote without regard to race, color, age, religion, sex, sexual orientation, gender identity or expression, national origin, protected veteran status, disability, or genetic information.

July 1, 2021 | Permalink | Comments (0)

Wednesday, April 7, 2021

CFP: ALPS Virtual Conference

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The Association for Law, Property & Society (ALPS) is an organization for those  engaged in scholarship on all aspects of property law and society.  Its annual  meeting brings  together scholars  from different disciplines and  from around  the world to discuss their work and to foster dialogue among those working in  property law,  policy,  planning,  social  scientific  field  studies,  modeling,  and  theory. This year, the ALPS annual meeting is going all virtual and all day! 

For 24-hours on Friday, May 28, 2021, and Saturday, May 29, 2021, ALPS will  be hosting a virtual conference for property scholars  from around the world.   The conference will begin at 7:00am (New Orleans, GMT - 5) / 1:00pm (Belfast,  GMT + 1) / 8:00pm (Beijing, GMT + 8) on Friday, May 28, and will end at 7:00am  (New  Orleans)  /  1:00pm  (Belfast) /  8:00pm  (Beijing) on  Saturday,  May  29.   

There is no cost to register.  A limited number of previously unpublished papers  will be presented throughout the 24-hour conference.  Given the dynamics of this 24-hour  virtual  conference—cutting  across  time  zones  and  spanning  around  the globe—selected papers will be scheduled based primarily on the  time  availability  of  presenters;  papers will  not  be  slotted  thematically.  This  virtual  conference  will  be  a  novel,  exciting,  informative  “round-the-clock”  discussion of property! 

Anyone interested in attending  the conference and/or submitting a work-in progress for consideration to present at the 24-Hour Virtual ALPS Conference  must  compete  this  registration  form by  Friday,  April  16,  2021.  If  you  are  submitting a work-in-progress  to present,  you must upload  your abstract by  Friday, April 16, 2021 following the instructions on the registration form.  

Questions? Email  Jess  Shoemaker  or  Sally  Richardson  at ALPSConference2021@gmail.com.

April 7, 2021 | Permalink | Comments (0)

Sunday, March 7, 2021

UMKC Seeks Visitor in Property, Real Estate Transactions, Fair & Affordable Housing

UMKC Seeks Visiting Professor

The University of Missouri-Kansas City School of Law is hiring a visiting associate professor in Property, Real Estate Transactions, Fair and Affordable Housing, and related subjects which will begin in Fall 2021, with the further opportunity to apply for a tenure-track position beginning in Fall 2022. A J.D. or equivalent degree is required.  Previous teaching experience is strongly preferred. Applications must come through the UMKC Human Resources portal at https://info.umkc.edu/hr/careers/academic-positions/

UMKC School of Law has a tradition of strong scholarship and engagement in the field of property, as well as outstanding training for students as part of our J.D. and LL.M. emphasis in Urban, Land Use, and Environmental Law. The School of Law boasts an extraordinary relationship with the local bench, bar, and civic community, providing opportunities for research and service in cutting-edge entrepreneurial urban development.  Service to the community is supported through two clinics focused on property law: an abandoned housing clinic and a tenant eviction defense initiative. 

UMKC is the urban law school of the University of Missouri System and is located on a beautifully landscaped campus in the Country Club Plaza area of Kansas City, Missouri. It is the only law school in a diverse and vibrant metropolitan area of more than two million people and offers courses leading to J.D. or LL.M. degrees for approximately 450 students. It benefits from its metropolitan location, a university with opportunities for interdisciplinary collaboration, a dedicated faculty and staff, and strong community and alumni support.

Equal Opportunity is and shall be provided for all employees and applicants for employment on the basis of their demonstrated ability and competence without unlawful discrimination on the basis of their race, color, national origin, ancestry, religion, sex, pregnancy, sexual orientation, gender identity, gender expression,  age, disability, protected veteran status, or any other status protected by applicable state or federal law. This policy shall not be interpreted in such a manner as to violate the legal rights of religious organizations or the recruiting rights of military organizations associated with the Armed Forces or the Department of Homeland Security of the United States. For more information, call the Vice Chancellor - Human Resources at 816-235-1621.   Reasonable accommodations may be made to enable individuals with disabilities to perform the duties and functions of this job. If you believe you may have difficulty performing any of the duties or functions of this job, please contact the Office of Affirmative Action at (816) 235-1323.

For more information, contact Professor Julie Cheslik, cheslikj@umkc.edu

March 7, 2021 | Permalink | Comments (0)

Tuesday, February 16, 2021

Peter Gerhart: Remembering a Scholar and a Friend to All

Sunday, February 7, 2021

Symposium: Dagan and the Liberal Theory of Property

9781108418546Blog readers will doubtlessly be interested in a recent symposium hosted by the Law and Political Economy Project and centered on the new book A Liberal Theory of Property by Hanoch Dagan (Tel-Aviv University).

The symposium features reviews by David Singh Grewal & Jedediah Britton-Purdy, Nestor Davidson, Rashmi Dyal-Chand, Katharina Pistor, Ezra Rosser, and Lua Yuille.

Hanoch's reply, which is now available on SSRN (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3779397),  recaps the book’s core thesis and then addresses the reviewers’ two main challenges: whether liberal property is potentially self-destructive, and whether it might be a distracting utopia.

February 7, 2021 | Permalink | Comments (0)

Monday, February 1, 2021

Mandelker on Sign Ordinances and Free Speech

MandelkerDaniel R. Mandelker (Washington University) has posted Billboards, Signs, Free Speech, and the First Amendment on SSRN. Here's the abstact:

This Article reviews the competing demands free speech law makes when applied to sign and billboard ordinances. It describes the free speech doctrines that apply, explains ambiguities and conflicts, and makes recommendations for sign regulations that can avoid constitutional problems. The Article first explains how state courts decided the constitutionality of billboard controls before free speech law applied. It then describes the litigation problems municipalities face in sign litigation, and considers the overbreadth and severability doctrines that litigants can use to strike sign ordinances down. Ordinances that regulate signs typically regulate commercial speech. The Article explains the criteria the Supreme Court adopted for laws that regulate commercial speech, and how the Court liberally applied these criteria in a case upholding an ordinance that prohibited billboards. Lower court cases that applied this case are discussed next. They followed the Supreme Court’s approach in billboard cases but sometimes added new requirements. The Article then describes the free speech time, place, and manner rules that are an alternative to commercial speech doctrine, and how courts apply these rules to sign ordinances. Regulations for digital billboards are discussed next. The Article concludes by discussing the constitutional protections courts provide for noncommercial speech, and the constitutional restrictions they require for signs that regulate content.

February 1, 2021 | Permalink | Comments (0)

Monday, January 11, 2021

Bronin on Lisa Alexander's Tiny Homes

Check out Sara Bronin's (Connecticut) JOT review of Lisa Alexander's (Texas A&M) article, Community in Property: Lessons From Tiny Homes Villages, 104 Minn. L. Rev. 385 (2019). Cribbing from the JOT intro:

Our nation’s housing situation gets worse by the day. Even before the pandemic, subprime lending, exclusionary zoning, and modern-day redlining forced millions of households into unstable, unsafe, or unaffordable living situations. Now, with the pandemic wiping away jobs, we appear to be on the verge of an unprecedented national housing crisis that will start when the evictions and mortgage relief end. We need creative solutions now more than ever.

That’s why Lisa Alexander’s most recent law review article, Community in Property: Lessons from Tiny Homes Villages, is such a timely, significant contribution.

Check out the rest here!

January 11, 2021 | Permalink | Comments (0)

Monday, January 4, 2021

VAP Announcement @Iowa Law

For all you aspiring property law profs out there, come hang out with a bunch of wonderful people here in Iowa City!:

Iowa Law Faculty Fellowship 

The University of Iowa College of Law seeks applicants for the Iowa Law Faculty Fellowship.  This program provides research opportunities, faculty mentoring, and career development for promising legal scholars and teachers.  The Iowa Law Faculty Fellowship combines law teaching with scholarly research and writing, especially research with an interdisciplinary focus and reach, and aims to further the University of Iowa’s goal of recruiting and retaining a more diverse campus community of faculty, staff and students. 

The University of Iowa has long had a commitment to increasing diversity in the legal profession.  The Iowa Law Faculty Fellowship is a successor to the Faculty Fellows program, which provided aspiring legal academics with an opportunity to develop their scholarship and teaching, and ultimately seek long-term academic positions. 

Iowa Law is especially well known for its strong focus on law teaching, exceptionally comprehensive law library, and collaborative atmosphere.  The University of Iowa itself is a major public research university located in Iowa City, a quintessential college town brimming with writers, students, and scholars.   

Iowa Law Faculty Fellows concentrate on those aspects of academic life that are most likely to be helpful in preparing for a faculty career in legal education.  Typically, faculty fellows teach one course during the academic year, with the remainder of the fellow’s time devoted to research and development of one or more major works of scholarship.  The fellow works closely with a primary faculty mentor and advisory team of faculty members.  Faculty fellows participate fully in the life of the College, but will have limited service assignments so as to permit the fellow to concentrate on teaching and scholarship.  Fellows will be expected to contribute to diversity, equity, and inclusion goals at the College and University.    

The Iowa Law Faculty Fellowship does not have a specific subject matter focus, but prioritizes applicants who seek to conduct interdisciplinary research that connects with other fields of study at the University of Iowa.  Selection criteria include the potential for legal teaching and scholarship, interdisciplinarity of research, contributions to diversity, equity, and inclusion, and the degree to which the applicant’s research proposal aligns with institutional resources and opportunities. 

Initial Faculty Fellowship appointments are for one year and can be renewed once.  Fellows will be appointed at the rank of Visiting Assistant Professor of Law.  Most Faculty Fellows will serve for two years and participate in the law hiring market during the second year of the fellowship.  The salary for the 2021-22 Academic Year will be competitive with well-regarded law fellowship and VAP programs.  In addition, Faculty Fellows will be provided with research support including research, travel funds and the opportunity to hire law student research assistants.  Fellows will be expected to be in full-time residence at Iowa Law during the academic year.

To apply for the Iowa Law Faculty Fellowship program, an applicant should submit the following through Jobs@Iowa:

  • cover letter, including a description of the applicant’s contributions to diversity, equity and inclusion and research plan to be carried out during the fellowship.
  • resume
  • graduate and professional transcripts (including law school transcripts)
  • academic writing sample
  • three letters of reference providing support for the applicant’s potential as a legal scholar and teacher

Educational qualifications:

  • A JD or equivalent, or Ph.D. from a relevant field of study.

Required qualifications

  • Strong potential for legal teaching
  • Strong potential for legal scholarship
  • Demonstrated contributions to diversity, equity and inclusion
  • Strong communication and interpersonal skills

Desired qualifications:

  • A demonstrated ability to conduct interdisciplinary research
  • Alignment between the proposed research plan and collegiate and university resources and opportunities.

Review of applications will begin immediately and will continue until the position is filled.  For fullest consideration, submit applications before February 15, 2021.  For more information, please contact Adrien Wing, chair of the Faculty Appointments Committee, at adrien-wing@uiowa.edu.

The University of Iowa is an equal opportunity/affirmative action employer. All qualified applicants are encouraged to apply and will receive consideration for employment free from discrimination on the basis of race, creed, color, national origin, age, sex, pregnancy, sexual orientation, gender identity, genetic information, religion, associational preference, status as a qualified individual with a disability, or status as a protected veteran. The University also affirms its commitment to providing equal opportunities and equal access to University facilities. Women and Minorities are encouraged to apply for all employment vacancies. For additional information on nondiscrimination policies, contact the Coordinator of Title IX and Section 504, and the ADA in The Office of Equal Opportunity and Diversity, 319/335-0705 (voice) or 319/335-0697 (text), The University of Iowa, 202 Jessup Hall, Iowa City, Iowa, 52242-1316.

Persons with disabilities may contact University Human Resources/Faculty and Staff Disability Services, (319) 335-2660 or fsds@uiowa.edu, to inquire or discuss accommodation needs.

Prospective employees may review the University Campus Security Policy and the latest annual crime statistics by contacting the Department of Public Safety at 319/335-5022.

January 4, 2021 | Permalink | Comments (0)

Friday, December 18, 2020

#BlackHomesMatter Virtual Event

This just in from Bernadette Atuahene (Chicago-Kent):

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Like #BlackLivesMatter, #BlackHomesMatter is more than a moment — it’s a movement.

The virtual #BlackHomesMatter event will take place on Wednesday, Jan. 13, 2021, 6PM ET. Click here for information on how to join.

The City of Detroit and Wayne County have stolen tens of thousands of homes and generations of wealth from Detroit homeowners.

Congresswoman Rashida Tlaib, Dr. Cornel West, and Rev. Dr. William Barber II will speak out against Detroit’s illegally inflated property taxes, which have caused the greatest number of property tax foreclosures in any city since the Great Depression.

Join us to call on Michigan’s Governor, Gretchen Whitmer, to investigate and end this injustice and create a plan to compensate Detroit homeowners who have overpaid or lost their homes.

The event will end with a performance from Detroit's legendary gospel artists, The Clark Sisters.

This event will be livestreamed on YouTube. Register here for the event.

December 18, 2020 | Permalink | Comments (0)

Wednesday, December 16, 2020

Suffolk Law Seeking Two Year-Long Property/T&E Visitors

Just in from John Infranca (Suffolk):


Suffolk University Law School in Boston invites applications for two visiting faculty positions for the upcoming 2021-2022 academic school year.  We are seeking full-year coverage for the following courses: (i) first-year Property and (ii) Trusts and Estates, though candidates seeking one-semester visits are also welcome to apply.  Applications should be received by Friday, January 29, 2021 (although applications will be considered on a rolling basis until the position is filled) and must include a letter detailing desire and qualifications to teach Property and/or Trusts and Estates, as well as a curriculum vitae.  Applications should be addressed to Professor Christopher Gibson (cgibson@suffolk.edu) and uploaded to the Suffolk University website via Jobvite.


Suffolk University is an affirmative action, equal opportunity employer. The University is dedicated to the goal of building a diverse and inclusive faculty and staff that reflect who contribute to the robust exchange of ideas on campus, and who are committed to teaching and working in a diverse environment. We strongly encourage applications from groups historically marginalized or underrepresented because of race/color, gender, religious creed, disability, national origin, veteran status or LGBTQ status. The search committee is especially interested in candidates who, through their research, teaching, service and/or experience, will contribute to the diversity and excellence of the academic community.  Candidates are encouraged to describe previous activities mentoring members of underrepresented groups, describe how diversity issues have been or will be brought into courses, or how their scholarship contributes to building and supporting inclusive communities.

Suffolk University does not discriminate against any person on the basis of race, color, national origin, ancestry, religious creed, sex, gender identity, sexual orientation, marital status, disability, age, genetic information, or status as a veteran in admission to, access to, treatment in, or employment in its programs, activities, or employment.

December 16, 2020 | Permalink | Comments (0)

Wednesday, November 25, 2020

Mandelker and Alexander on Land Use and Discrimination

Daniel R. Mandelker (Washington University) and Trevor Alexander (WashU Student) have posted Minority Discrimination Through Popular Vote in the Land Use Process (Zoning and Planning Law Report) on SSRN. Here's the abstract:

Voter participation in the land use process can discriminate against minorities. Assume a city council approves an amendment to the zoning ordinance that authorizes an affordable housing project. The amendment attracts opposition because the project will be open to minorities. Voters who oppose the project place a referendum on the ballot, an election is held, and the amendment is rejected by popular vote. Similar problems arise when voters adopt a constitutional or city charter amendment that bars effective action to prevent minority discrimination. Assume a city adopts an inclusionary housing program that requires developers to provide affordable housing and prohibits minority discrimination. Voters place an initiative on the ballot that would amend the city charter to prohibit inclusionary housing programs, an election is held, and they adopt the charter amendment.

Initiatives and referenda like these are facially neutral but raise minority discrimination problems, which the Supreme Court considered in a series of cases. Its decisions are mixed, and it rejected initiatives that had racially discriminatory impacts in some cases. The constitutional basis for these cases was not always clear, and some preceded the critical holding in Washington v. Davis that proof of racial discrimination under the Fourteenth Amendment requires proof of discriminatory intent. The Court changed direction in a recent case, where a plurality upheld an initiative that prohibited affirmative action in higher education.

Commentary suggests that cases holding initiatives unconstitutional applied a political process doctrine based on a famous footnote in U.S. v. Carolene Products Co. In that footnote, Justice Stone asked “whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” The footnote’s application to the land use process is clear. In the examples at the beginning of this article, a referendum or an initiative rejected a decision made by legislative representatives, and curtailed a political process used to protect minorities. Rezoning for housing available to minority groups was displaced by popular referendum, and an initiative rejected a legislative program that benefited minorities.

The political process doctrine has two prongs. The first prong requires that an issue that raises a political process problem must be minority sensitive “in that it singles out for special treatment issues that are particularly associated with minority interests.” The second prong requires a showing that voters removed a decision associated with minority interests to a higher level of government, where it was insulated from change except through change at the higher level. A mere repeal of protective legislative action does not satisfy this prong. There must be repeal plus a modification of the normal political process for making political decisions. An initiative can accomplish this change.

Supreme Court cases that rejected initiatives because they were racially discriminatory did not explicitly embrace or explain a political process theory, but acceptance of this theory is implicit. A recent plurality decision by the Supreme Court, Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary, damaged these early decisions, damaged judicial protection against racial discrimination by popular vote, and rejected the political process theory. We begin with Supreme Court cases, discussed in Schuette, that invalidated racially discriminatory initiatives. We then discuss Schuette, and what it means for the future of racial plebiscites as they affect the land use process. We then discuss two Supreme Court cases not discussed in Schuette where the Court upheld racially discriminatory initiatives, and what these cases mean for the Schuette decision.

November 25, 2020 in Recent Scholarship | Permalink | Comments (0)

Friday, November 13, 2020


Just in from Vanessa Casado Perez (Texas A&M), a book symposium reviewing Professor Ken Stahl's new title, Local Citizens in a Global Age (Cambridge University Press 2020):


November 13, 2020 | Permalink | Comments (0)

Thursday, November 12, 2020

NEW BOOK: Dagan on Justifying Property and Its Values

9781108418546Hanoch Dagan (Tel-Aviv) has posted chapters 1 and 9 of A Liberal Theory of Property (Cambridge University Press) on SSRN. The title is coming out next month, December 2020. Here's an overview of chapters 1 and 9:

Property enhances autonomy for most people, but not for all. Because it both empowers and disables, property requires constant vigilance. “A Liberal Theory of Property” addresses key questions: how can property be justified? What core values should property law advance, and how do those values interrelate? How is a liberal state obligated to act when shaping property law?

In a liberal polity the primary commitment to individual autonomy dominates the justification of property, founding it on three pillars: carefully delineated private authority, structural (but not value) pluralism, and relational justice. A genuinely liberal property law meets the legitimacy challenge confronting property by expanding people’s opportunities for individual and collective self-determination while carefully restricting their options of interpersonal domination.

“A Liberal Theory of Property” shows how the three pillars of liberal property account for core features of existing property systems, provide a normative vocabulary for evaluating central doctrines, and offer directions for urgent reforms.

November 12, 2020 in Recent Scholarship | Permalink | Comments (0)

Thursday, October 29, 2020

Stein on Autonomous Vehicles and Land Use

Stein-Greg-copyGregory Stein (Tennessee) has posted The Impact of Autonomous Vehicles on Urban Land Use Patterns (Florida State University Law Review) on SSRN. Here's the abstract:

Autonomous vehicles are coming. The only questions are how quickly they will arrive, how we will manage the years when they share the road with conventional vehicles, and how the legal system will address the issues they raise. This Article examines the impact the autonomous vehicle revolution will have on urban land use patterns.

Autonomous vehicles will transform the use of land and the law governing that valuable land. Automobiles will drop passengers off and then drive themselves to remote parking areas, reducing the need for downtown parking. These vehicles will create the need for substantial changes in roadway design. Driverless cars are more likely to be shared, and fleets may supplant individual ownership. At the same time, people may be willing to endure longer commutes, working while their car transports them.

These dramatic changes will require corresponding adaptations in real estate and land use law. Zoning laws, building codes, and homeowners’ association rules will have to be updated to reflect shifting needs for parking. Longer commutes may create a need for stricter environmental controls. Moreover, jurisdictions will have to address these changes while operating under considerable uncertainty, as we all wait to see which technologies catch on, which fall by the wayside, and how quickly this revolution arrives. This Article examines the legal changes that are likely to be needed in the near future. It concludes by recommending that government bodies engage in scenario planning so they can act under conditions of ambiguity while reducing the risk of poor decisions.

October 29, 2020 in Recent Scholarship | Permalink | Comments (0)

Friday, October 9, 2020

The Uniform Easement Relocation Act Becomes Official!

LNO_5069Just in from the reporter himself, John Lovett (Loyola-NOLA Law): the final version of the Uniform Easement Relocation Act was officially released this week. The act itself, as well as the prefatory note and comments, can be accessed here. Cribbing from the ULC website:

The Uniform Easement Relocation Act allows the owner of a real estate burdened by an easement to obtain a court order to relocate the easement if the relocation does not materially impair the utility of the easement to the easement holder, or the physical location, use, or value of the benefited property. The burdened property owner must file a civil action, give other potentially affected real property interest owners notice, and bear all the cost of relocation.


October 9, 2020 | Permalink | Comments (0)