Tuesday, February 16, 2021
Peter Gerhart, a friend to all of us and a longtime professor and former dean at the Case Western Reserve University School of Law, passed away on February 7, 2021. To honor his memory and the many contributions he made to property law, we highlight this 2015 symposium, hosted by the Texas A&M University Journal of Property Law, on his book Property Law and Social Morality (Cambridge University Press 2013):
Sunday, February 7, 2021
Blog 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.
Monday, February 1, 2021
Daniel 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.
Monday, January 11, 2021
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!
Monday, January 4, 2021
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.
- 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
- A JD or equivalent, or Ph.D. from a relevant field of study.
- Strong potential for legal teaching
- Strong potential for legal scholarship
- Demonstrated contributions to diversity, equity and inclusion
- Strong communication and interpersonal skills
- 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 email@example.com.
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 firstname.lastname@example.org, 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.
Friday, December 18, 2020
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.
Wednesday, December 16, 2020
Just in from John Infranca (Suffolk):
TWO FULL-TIME VISITING FACULTY POSITIONS
AT SUFFOLK UNIVERSITY LAW SCHOOL
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 (email@example.com) 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.
Wednesday, November 25, 2020
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.
Friday, November 13, 2020
Thursday, November 12, 2020
Hanoch 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.
Thursday, October 29, 2020
Gregory 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.
Friday, October 9, 2020
Just 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.
Tuesday, October 6, 2020
Texas A&M School of Law professor Thomas W. Mitchell has been named a 2020 fellow of the John D. and Catherine T. MacArthur Foundation for his work in reforming laws and developing policy solutions that help disadvantaged families deprived of their land, homes and real estate wealth.
The “genius grant,” considered to be among the most prestigious prizes in academia, is given to individuals “who have shown extraordinary originality and dedication in their creative pursuits and a marked capacity for self-direction.” The distinction comes with a $625,000 no-strings-attached stipend.
Fellows are nominated anonymously by leaders in their respective fields and considered by an anonymous selection committee. Selection criteria includes exceptional creativity, promise for important future advances based on a track record of significant accomplishments, and potential for the fellowship to facilitate subsequent creative work.
Mitchell said he was overcome by the news.
“When I started nearly 25 years ago, my ideas for law reform to help disadvantaged property owners were considered nearly impossible to achieve. I tell my students that they can make a real difference,” Mitchell said. “No matter how inevitable and seemingly permanent any injustice may appear to be, if you use your imagination and think boldly, develop a strategy, cultivate allies, and remain determined, change can come.”
Mitchell’s research primarily addresses real property issues that impact poor and disadvantaged communities, many of which are rural. He seeks to understand how the ability or inability of individuals or communities to build and retain assets can impact inequality.
Robert Ahdieh, dean of the School of Law, has known Mitchell for almost 30 years and was not surprised by the announcement.
“From the time I first met him as a law student, I have always been struck by Thomas’ commitment to positively impacting law and society,” Ahdieh said. “With his incredible work on reforming the law of partition, he has managed to do so in ways that are fundamental and lasting — and to which most law professors can only aspire.”
Mitchell has served since 2016 as a professor of law and co-director of the Program in Real Estate, which focuses on urban and rural real estate, housing, land use and community development law challenges.
He is the principal drafter of the Uniform Partition of Heirs Property Act (UPHPA), which was promulgated by the Uniform Law Commission to improve the ability of families who own so-called heirs’ property owners to maintain ownership of their properties and preserve their real estate wealth. The UPHPA has been enacted in 17 states and the U.S. Virgin Islands since 2011, and was drawn upon in the Farm Bill, which was passed by Congress in 2018 in part to help heirs’ property owners maintain ownership of their property and access government assistance programs for farming and ranching operations.
“I am absolutely delighted that the MacArthur Foundation recognized the brilliant work of Thomas Mitchell,” said Michael K. Young, president of Texas A&M University. “His scholarship and indeed self-described life mission of helping disadvantaged property owners is the core value of selfless service in action that we teach students.”
Sunday, September 13, 2020
The rise of the sharing economy benefits consumers and providers alike. Consumers can access a wider range of goods and services on an as-needed basis and no longer need to own a smaller number of costly assets that sit unused most of the time. Providers can engage in profitable short-term ventures, working on their own schedule and enjoying many new opportunities to supplement their income.
Sharing economy platforms often employ dynamic pricing, which means that the price of a good or service varies in real time as supply and demand change. Under dynamic pricing, the price of a good or service is highest when demand is high or supply is low. Just when a customer most needs a good or service – think bottled water after a hurricane – dynamic pricing may price that customer out of the market.
This Article examines the extent to which the rise of the sharing economy may exacerbate existing inequality. It describes the sharing economy and its frequent use of dynamic pricing as a means of allocating scarce resources. It then focuses on three types of commodities – necessities, inelastic goods and services, and public goods and services – and discusses why the dynamic pricing of these three types of commodities raises the greatest inequality concerns. The Article concludes by asking whether some type of intervention is warranted and examining the advantages and drawbacks of government action, action by the private sector, or no action at all.
Saturday, September 5, 2020
The Changing Architecture of Legal Education:
Real Estate Transactions as a Case Study
What real property law courses should law schools be teaching?
Who should be teaching these courses?
How should the courses be taught?
The Section on Real Estate Transactions and the Section on Academic Support seek to explore these questions and related issues at their joint online session during the 2021 AALS Annual Meeting, The Changing Architecture of Approaches to Legal Education: Real Estate Transactions as a Case Study.
Members of the legal academic community are invited to submit statements of interest in joining the panel of presenters who will discuss the following in the context of real property law and related courses (mortgage finance, securitization, commercial leasing, housing law, real estate development, etc.):
- Law schools’ curricular choices
- Course content and design
- Teaching and pedagogy application.
As explained more in the “Background” section below, the Sections are specifically looking to highlight issues related to course offerings, curricular design, and teaching methodologies that can better prepare students for modern practice and ensure student achievement of course objectives. Statements of interest (including a description/summary of your proposed presentation) should be emailed to Andrea Boyack at firstname.lastname@example.org by September 17, 2020.
There is no formal paper requirement associated with participation on the panel.
**Note that the AALS Annual Meeting in January 2021 will be held in a completely digital format, and individual registration fees will not be charged for participation in/attendance at the Annual Meeting.**
In the past decade, legal education has experienced a number of body blows from which it still struggles to recover. In 2007, Educating Lawyers: Preparation for the Profession of Law (more commonly known as the “Carnegie Report”) criticized the academy for insufficiently preparing students for legal practice. In the aftermath of the 2008 Financial Crisis and global recession, many attorneys (especially from Big Law) were laid off and new graduates faced fewer and fewer job prospects. Mainstream and social media spotlighted lawyer and law student discontent, worries about sustainability of legal careers and the high cost of legal education, schools skewing data to try to game US News rankings, and the growing number of for-profit institutions. Law firms and their clients started exhibiting an increasing hesitancy with respect to hiring and training inexperienced attorneys. Law school admission rates tumbled as college graduates changed their opinions about the value of a legal education, as the ABA began making new demands of law schools pertaining to skills training and assessments. The practice of law, in the meantime, has changed dramatically, with automation, internet resources, and contract attorneys (or non-attorneys) taking the place performing tasks lawyers once controlled. Furthermore, schools have struggled to adapt to different expectations of the Millennial and Gen-Z generations of law students. Then, in March 2020, legal academia and law practice suddenly shifted to operating (temporarily?), primarily in the digital/virtual realm. The world has changed over the past 15 years, the practice of law has changed, and law schools struggle to adapt quickly enough to stay relevant and valuable.
The evolving demands and expectations for law schools are not just issues to be addressed by deans and administrators. Nor can the task of preparing new lawyers be allocated exclusively to clinicians and adjunct instructors of specialized “skills” classes. Doctrinal professors may want to also change their approach in the classroom in response to new industry demands for practice competencies and evolving attorney roles in an ever-changing marketplace, but have our pedagogical approaches adequately adapted to this new world? And how has law schools’ increasing reliance on adjunct professors impacted the students’ experience and preparation for the bar and beyond? In short: In what ways do we need to rethink what we teach and how we teach it in order to remain optimally relevant to tomorrow’s lawyers.
Per AALS rules, faculty at fee-paid law schools, foreign faculty, adjunct and visiting faculty (without a full-time position at an AALS member law school), graduate students, fellows, and non-law school faculty are not eligible to submit a statement of interest.
Sunday, August 2, 2020
Notwithstanding the enactment of the Fair Housing Act in 1968, accomplishing racially- integrated housing across the United States remains an unattained goal. The costs associated with this failure are innumerable. Black Americans have endured harms in many areas, including health, education, wealth, and employment. More broadly, the nation has incurred considerable socio-economic and political costs. In the interdisciplinary book, Moving Toward Integration, authors Richard Sander, Yana Kucheva, and Jonathan Zasloff analyze why the promise of racially-integrated housing remains unfulfilled and identify noteworthy strategies for changing course. Engaging with their arguments, this article highlights several structural impediments to altering racial housing patterns. Banks, cities, government agencies, and courts have been major contributors to the problem. Nonetheless, they have the power to ameliorate some of the lingering damage and to prevent future harms. Referencing several examples involving the Fair Housing Act, disparate impact theory, and the Low Income Housing Tax Credit, this work elucidates how lending and government entities have sometimes operated to compromise desegregation and integration efforts rather than to facilitate them. Understanding the counterproductive moves of these influential actors is essential to assessing proposals for change.
Monday, July 20, 2020
Oxford University Press
Studies in Private Legal Theory
Oxford University Press is pleased to announce a call for papers for volume two of Oxford Studies in Private Law Theory, edited by Paul Miller (Notre Dame) and John Oberdiek (Rutgers).
Oxford Studies in Private Law Theory is a series of biennial volumes showcasing the best article-length work across private law theory. The series publishes exceptional work exploring the full range of private law’s domains and doctrines—including contract, property, tort, and fiduciary law as well as equity, unjust enrichment, and remedies—and employing diverse methodological approaches to individual areas of private law as well as to private law in general. Submissions should be approximately 12,000 words, inclusive of footnotes. The deadline for submission is March 1, 2021.
Circumstances permitting, all accepted papers will be presented at a workshop at the National University of Singapore on August 6-7 2021. The National University of Singapore and the Rutgers Institute for Law and Philosophy will cover the expense of contributors’ travel and accommodation.
Please send submissions to both Paul Miller (paul dot miller at nd dot edu) and John Oberdiek (oberdiek at rutgers dot edu).
Friday, July 17, 2020
Annual Call For Papers
The Journal for Law, Property, and Society
The Association of Law Property & Society (ALPS) publishes the Journal of Law, Property, and Society. While our annual meeting was not able to occur this year, we still hope to publish high quality scholarship from our international property law community in our open access peer review journal. We have heard that some people missed our earlier call for papers, so we are recirculating and have extended the deadline.
We invite you to consider publishing with JLPS in three ways.
First, we invite submissions of papers that would have been presented at our annual meeting. If you are interested in publishing your piece with us, please submit your abstract by July 31, 2020 with an email stating when the final article would be ready to be circulated for peer review.
Second, JLPS publishes descriptive articles on property law. These articles are intended to be clear, authoritative, and useful introductions to a property topic. There are few existing venues for publication of this kind of article and creating a space for them was one of our goals in creating the journal. If you are interested in submitting this type of article to the journal, we invite you to send us a short e-mail describing your proposed topic.
Third, JLPS publishes book reviews. If you have a book you would like to review or would like to have one of your publications reviewed, please contact us.
Please submit all questions and abstracts directly to our Editor in Chief, Jessie Owley at email@example.com.
Wednesday, June 3, 2020
Daniel R. Mandelker (Washington University) has posted Litigating Land Use Cases in Federal Court: A Substantive Due Process Primer (Real Property, Trust, & Estate Law Journal) on SSRN. Here's the abstract:
This Article argues that land use plaintiffs should have access to federal courts when they can claim that abusive governmental decisions violate their substantive due process rights. Traditionally, land use plaintiffs have faced many hurdles in getting their cases into federal court. This Article shows how courts can provide effective constitutional relief in land use cases involving governmental abuse.
This Article discusses major hurdles that land use plaintiffs traditionally face when bringing a case in federal court, including the entitlement rule, the ripeness barrier, and Graham preemption. The entitlement rule means that a plaintiff must have an entitlement to property before she can bring a substantive due process claim. The ripeness barrier requires a plaintiff in a takings case to obtain a final decision from the local government before bringing a takings claim in federal court. Graham preemption prevents a court from hearing a substantive due process case if the case could have been brought under a more specific constitutional clause, such as the takings clause.
This Article concludes with a discussion of the appropriate standard of review that should be applied in land use substantive due process cases. The Article rejects the shocks the conscious standard applied by the Supreme Court in influential Fourth Amendment cases as the appropriate standard and goes on to discuss the inconsistency of standards applied within circuits to other substantive due process cases. The Article ends with an analysis of the “arbitrary conduct” standard of judicial review applied when municipalities engaged in abusive conduct in land use cases.
Friday, May 15, 2020
Despite an academic consensus that easing land use regulations to increase the supply of housing can help lower housing prices, local opposition to new development remains prevalent. Onerous zoning regulations and resistance to new housing persist not only in wealthy suburbs, but also in lower-income urban neighborhoods. In addition to making housing more expensive, such policies increase residential segregation, exacerbate urban sprawl, and have detrimental environmental effects. If increasing supply tends to reduce costs, what explains this opposition, particularly during a period of rising housing costs?
One factor is concern about the localized costs of greater density and its effect on neighborhood character and livability. There is a perception that new development may, by changing the character and desirability of its immediate neighborhood, play some role in increasing housing prices and exacerbating gentrification and displacement in lower-income communities. Empirical evidence suggests this is not the case, but efforts to exclude new development and demands for greater local control over land use persist in lower-income urban neighborhoods. These tendencies mirror responses in wealthier communities.
This Article compares these exclusionary tendencies and asks whether there is a normative basis for differentiating them. It concludes that there is a modest case for distinct treatment, based on a combination of factors including the historical treatment of lower-income urban communities, the more fragile relationship between property and personhood in such neighborhoods, the structure of local government law, and the principle of subsidiarity. However, any preferential treatment must avoid undermining broader efforts towards reducing regulatory and procedural obstacles to denser development and increased housing supply. It should primarily address concerns about neighborhood character and the claims of long-term residents to a distinct stake in the neighborhood that entitles them to some degree of deference and perhaps some share of the increased property values generated by a zoning change. Rather than provide additional process or opportunities for public participation, legal responses should carefully circumscribe local authority in the realm of planning and grant individual residents a property entitlement they can freely transfer. This entitlement, granted to both owners and tenants, would allow residents to derive some benefit from new development while strengthening the voice of a more representative share of the local population.