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 firstname.lastname@example.org.
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.
Wednesday, May 13, 2020
There is widespread debate over the rights of control that people retain over their personal information. This Article offers several insights that provide clarity to the terms and stakes of this debate. First, it lays out a new normative foundation for the importance of control in data protection regimes, as well as for determining the limits of control that people should retain over their personal data after it is transferred. The central claim is that personal data—as well as other unique cases that this Article identifies—retains a connection to the person even after they no longer control it. The Article analyses of the philosophical concept of separability, which provides conceptual clarity for parsing when and to what degree legal mechanisms should provide control for people over information that describes them. While separable uses do not raise normatively relevant issues of control, when firms use personal data inseparably, they risk violating basic deontological maxims—such as refraining from using a person as a means to an end—which undermine human dignity. As a result, policymakers should craft legal rules that allow individuals to control inseparable uses of their personal data.
However, this Article transcends previous accounts of separability that fail to recognize that separability often turns principally on how the potential thing is used, not on some fundamental feature of the thing. This Article offers a new model of separability that fully accounts for the normative significance of use. This innovative account of separability yields practical benefits by casting new light on an array of puzzles from information law and property law. In information law, separability provides normative grounding for use-restrictions of personal data that do not fall prey to the traps of purpose limitations. Separability also provides important insights into property theory and debates over alienability. For instance, it casts new light on the debate over the alienability of rights of publicity as well as determining the boundaries of “moral rights” in copyright, which provide artists with legal mechanisms of control over their creative works that persist after these works are sold. And finally, separability resolves several challenges in the debate over deep fakes by more clearly delineating the interests that people have in uses of their image.
Sunday, May 10, 2020
Of all powers given to local governments, the power to zone is one of the most significant. Zoning dictates everything that gets built in a locality — and thus effectively dictates all of the key activities that take place within it. Nationwide, most zoning codes were adopted in the first half of the twentieth century. Many, including the zoning codes of New York City and Chicago, were significantly revised in the 1960s. While these codes have been revised piecemeal, just a few American cities have undergone a comprehensive revision: replacing the old code with a completely new one.
A comprehensive rezoning can allow a city to remake itself by casting off outdated requirements and codifying community priorities such as equity, sustainability, and vibrancy. Comprehensive revisions have the most promise in cities where growth is stagnant or where the economy is depressed. In those places, a zoning overhaul can signal a fresh start to attract new development and provide opportunities for creative place-making.
Given the struggling state of many American cities, it is surprising that so few have thrown off the shackles of their outdated zoning codes. And given the promise of comprehensive rezonings, it is surprising that not a single law review article deals squarely with the topic. This Article provides the first law review treatment of this critically important issue.
Delving deeply into recent zoning reforms of Hartford, Connecticut, this Article seeks to illustrate the power of zoning as a critical legal tool for urban revitalization. Part II provides the context for comprehensive rezonings, identifying why they may be desirable, which communities have adopted them, and what procedural and substantive issues may arise. Part III then covers four central goals that many cities share: economic growth, environmental sustainability, access and mobility, and food security. Part III also describes how Hartford used its zoning code to directly advance these goals. (In the process of rezoning, Hartford has been recognized with awards and national attention for several key decisions — including virtually eliminating parking minimums citywide.) Finally, Part IV describes some lessons learned during the rezoning process. This Article aims to encourage academics to delve further into this area of law — and to encourage policymakers to usher in new rules that promote equity, sustainability, and vibrancy.
Wednesday, April 29, 2020
Within weeks of the coronavirus pandemic appearing in the United States, the American economy came to a grinding halt. The unprecedented modern health crisis and the collapsing economy forced Congress to make a critical choice about how to help American families survive financially. Congress had two basic options. It could enact policies that provided direct and meaningful financial support to people, without the necessity of later repayment. Or it could pursue policies that temporarily relieved people from their financial obligations, but required that they eventually pay amounts subject to payment moratoria later.
In passing the CARES Act, Congress primarily chose the second option. This option reflects a belief that offering people credit can bring them meaningful relief because it assumes that people will have the ability to pay back the loan as it becomes due. The assumption that people will be able to repay credit masquerading as “relief” in the wake of the pandemic is a serious error that will have enduring negative consequences.
In short, Congress got the balance between providing true money versus what amount to credit products to Americans fundamentally backwards. But given that, unfortunately, the effects of the pandemic likely will continue for months, if not years, it is not too late for Congress to adopt a family financial well-being approach to relief that provides meaningful, widespread, and expanded direct payments to households in distress.
Tuesday, April 28, 2020
If you're looking for some good TV during this pandemic, check out a new mini-documentary by VICE (on Showtime) that aired on Sunday, April 26, 2020 at 8 p.m. eastern time. It addressed African American property loss in a 20-minute segment titled "Losing Ground." Friend of the blog Thomas Mitchell (TAMU) helped the producers develop the segment and was even interviewed! Check it out!
Friday, April 17, 2020
Paul Babie (Adelaide Law) has posted Cryptocurrencies as Property: Ruscoe and Moore v. Cryptopia Limited on SSRN. Here's the abstract:
On 8 April 2020, Gendall J, sitting in the High Court of New Zealand, decided Ruscoe and Moore v Cryptopia Limited (In Liquidation), providing the most recent and authoritative common law statement in the world on whether a cryptocurrency is property. The case provides significant guidance for any jurisdiction, common or civil, faced with determining whether cyrptocurrencies are property. This note outlines the approach taken to ‘the property question’ by Gendall J, in four parts. Part I introduces the property question. Part II provides a brief overview of blockchain and the nature of cryptocurrencies. Part III briefly recounts Gendall J’s reasons for the judgment concluding that cryptocurrencies are property. Part IV offers some brief reflections on the implications of the decision for property and for the relationship of property to contract.
Friday, April 3, 2020
Andreas Rahmatian (Glasgow) recently published a book titled Credit and Creed: A Critical Legal Theory of Money (Rutledge Press), which considers the law of money through a property theory frame. Here's the summary:
Money is a legal institution with principal economic and sociological consequences. Money is a debt, because that is how it is conceptualised and comes into existence: as circulating credit – if viewed from the creditor’s perspective – or, from the debtor’s viewpoint, as debt. This book presents a legal theory of money, based on the concept of dematerialised property. It describes the money creation or money supply process for cash and for bank money, and looks at modern forms of money, such as cryptocurrencies. It also shows why mainstream economics presupposes, but avoids an analysis of, money by effectively eliminating money from the microeconomic market model and declaring it as merely a neutral medium of exchange and unit of account. The book explains that money rather brings about and influences substantially the exchange or transaction it is supposed to facilitate only as a neutral medium. As the most liquid of all assets, money enables financialisation, monetisation and commodification in the economy. The central role of the banks in the money creation process and in the economy, and their strengthened position after the bank rescue measures in the wake of the financial crisis 2008-9 are also discussed.
Providing a rigorous analysis of the most salient legal issues regarding money, this book will appeal to legal theorists, economists and anyone working in commercial or banking law.
Monday, March 30, 2020
Sunday, March 15, 2020
On behalf of ALPS, and with a heavy heart, I wanted to pass along the message below from Sally, our host in New Orleans.
Please take care,
Dear ALPS Community,
Undoubtedly all of you have been considering the impacts of COVID-19 on your own communities, both personal and professional. We want you to know we are also thinking about the impact of COVID-19 on our late May gathering in New Orleans for the annual conference.
Unfortunately, the spread of COVID-19 pandemic to the New Orleans region, combined with the far reaching travel bans that have been put in place by the United States government, has led Tulane University to cancel all gatherings of more than 50 people for the foreseeable future and move all classes to an online space. Moreover, we are aware that many institutions worldwide have restricted travel for faculty. While the ALPS conference in May is still ten weeks away, we cannot say with any certainty whether Tulane will be hosting events of more than 50 people or whether the travel restrictions will have been lifted by late May. Accordingly, we regretfully must announce that we must cancel the ALPS conference scheduled for May 22-23 at Tulane University in New Orleans.
The ALPS Board will work through plans to attempt to have some virtual ALPS meetings in place of the previously-scheduled May 22-23 conference, but those plans are still in the early works. Similarly, the ALPS Board will consider whether we can reschedule the conference for later this calendar year. As soon as we have more concrete plans on both of these topics, we will immediately communicate those plans to you.
As we are forced to cancel the ALPS meeting, Tulane will be refunding the registration fees for those of you who have previously registered and paid for ALPS. I am currently working on getting these refunds processed, but please understand it will take a few weeks to complete all of the refunds given the breadth of work required to get the entire university moved online. No doubt many of you are helping on these same initiatives at your own institutions, so I appreciate your patience as we work through this process.
We do deeply regret having to cancel the ALPS conference. Thank you so much for your continued commitment to ALPS and all you are doing to care for your own students and colleagues during this time of uncertainty regarding COVID-19. Please remember to take care of yourselves. If you have any questions, do not hesitate to reach out.
Thursday, January 30, 2020
The Project on the Foundations of Private Law at Harvard Law School is seeking applicants for full-time, one- to two-year residential appointments, starting in the fall of 2020 — in particular, it is seeking applicants for both the Postdoctoral Fellowship in Private Law and the Qualcomm Postdoctoral Fellowship in Private Law and Intellectual Property. Application materials are due to Bradford Conner (conner at law.harvard.edu) by 9:00 a.m. on February 21, 2020.
For those unfamiliar with the Project, the Project on the Foundations of Private Law at Harvard is an interdisciplinary research program at dedicated to the academic investigation of "private law," meaning the traditional common law subjects of property, contracts, and torts, as well as related subjects that are more heavily statutory, such as intellectual property and commercial law. Lots of great property law and IP faculty are involved with the Project including Henry Smith, Robert Sitkoff, Ruth Okediji, and Molly Brady, to name a few, so it is a terrific opportunity for individuals interested in property law and looking for a postdoc fellowship.
Tuesday, January 28, 2020
Conference on Indigenous Private Law
Call for Papers
May 8, 2020
Professor Andrew Hutchison, University of Cape Town
Professor Frankie Young, Western University
In our legally plural world the discourse on Indigenous legal norms is currently expanding rapidly. In some Commonwealth countries, such as those in Africa, Indigenous (or Customary) laws have long been recognised as authoritative in certain types of dispute. The South African Constitution (for example) recognises African Customary law as a binding source of law where applicable, and equal to the Common law. This has been less true for Indigenous groups in other Commonwealth countries, such as those living in Canada or Australia. Times are changing, however, and Indigenous norms are increasingly being viewed as binding even in these latter countries.
Past choice of law rules enforced by the legal systems of Commonwealth countries have tended to shape Indigenous law into certain accepted fields of inquiry. In some countries, this problem is more acute than others. Legal pluralism theory, however, recognises that community norms, arising from the ground up, may be binding in that community and may exist as a de facto alternative to State law. This argument underlies, for example, the distinction between Aboriginal and Indigenous law in Canada. In South Africa, by contrast, the distinction is between the ‘living’ and ‘official’ versions of African Customary law: current, lived norms of communities have been recognised as binding by the Constitutional Court and as taking preference over the potentially ossified written law captured in the legislation, case precedents, and textbooks of the former era. If the ‘law in action’ is to be the recognised Indigenous law in other Commonwealth countries, then we need to broaden the fields of inquiry beyond those traditionally recognised as falling within the jurisdiction of Indigenous legal norms.
The Journal of Commonwealth Law, in cooperation with the Faculties of Law at the Université de Montréal and the University of Cape Town, will host a symposium devoted to exploring the issues inherent in Indigenous private law. We call for papers specifically on Indigenous Private law issues. What norms govern matters relating to Property, Persons and Family, or Succession for example? Beyond that, is there an Indigenous law of Contracts or Torts, or a law relating to (commercial) associations? We invite perspectives from around the Commonwealth and are open to different theoretical frames of reference or methodologies of inquiry. We are also open to papers which discuss how State laws relate to Indigenous private law issues, or the regulation of the Indigenous economy.
The conference will be held at the Université de Montréal on May 8, 2020, and the papers will be published in the Journal of Commonwealth Law, a peer-reviewed journal devoted to exploring legal issues from a multi-jurisdictional perspective. We seek contributions from both established and new scholars from around the Commonwealth, Ireland and the United States.
We welcome papers in both English and French.
Participants will be responsible costs of travel and accommodation.
Please submit an abstract of 250 words and a short CV prior to February 28, 2020 to:
Journal of Commonwealth Law
Those interested in obtaining more information about the conference are invited to contact
Profess Andrew Hutchison
Faculty of Law
University of Cape Town
Matthew P Harrington
Professor of Law
Faculté de droit
Université de Montréal
Monday, December 23, 2019
Cambridge University Press has just published a new book by Shelly Kreiczer-Levy (College of Law & Business in Ramat-Gan) titled Destabilizing Property: Property Law in the Sharing Economy. Here's a summary:
The sharing economy challenges contemporary property law. Does the rise of access render our conception of property obsolete? What are the normative and theoretical implications of choosing casual short-term use of property over stable use? What are the relational and social complications of blurring the line between personal and commercial use of property? The book develops a novel conceptualization of property in the age of the sharing economy. It argues that the sharing economy pushes for a mobile and flexible vision of engaging with possessions and, as a result, with other people. Property's role as a source of permanence and a facilitator of stable, long-term relationships is gradually decreasing in importance. The book offers a broad theoretical and normative framework for understanding the changing landscape of property, provides an institutional analysis of the phenomenon, discusses the social, communal, and relational implications of these changes, and offers guidelines for law reform.
Saturday, December 14, 2019
This just in from Sara Bronin (UConn):
Historic preservation is, at its core, an exercise in sustainability. Older buildings are often energy-efficient, made with renewable materials (such as wood or brick), and longer-lasting. Moreover, maintaining an existing structure avoids the environmental costs of replacing it with new construction. Despite their environmental benefits, Connecticut’s historic places face unprecedented threats, including climate change and needless demolition. Preservationists must recognize that in the face of these threats, not everything can be preserved. At the same time, preservationists must build consensus for changes to law and policy that protect historic places in service of environmental goals.
This UConn School of Law conference, cosponsored by the State Historic Preservation Office, Carmody Torrance Sandak & Hennesy LLP, Preservation Connecticut, and the Connecticut Chapter of the American Planning Association aims to craft a statewide policy agenda that recognizes preservation as a fundamental environmental value.
Panels will focus on:
- Documenting the status of and threats to historic sites;
- Reducing potential damage to historic places through performance, construction, and siting standards; and
- Ensuring that disaster response encompasses historical and cultural resources at all levels, from planning to recovery.
$50 for those seeking CLE or AICP CM credit, free for the general public, parking $1/hour. A light breakfast and lunch will be served.
RSVP by January 17, 2020 by clicking here.
IMPORTANT NOTE: While we encourage commuting, public transportation, and bicycling, those seeking to park a vehicle on campus must pay $1/hour through the PayByPhone system. On-street parking is also available where posted.
SNOW DATE WILL BE MONDAY, JANUARY 27
Friday, December 13, 2019
Brandon Weiss (UMKC) has posted Progressive Property Theory and Housing Justice Campaigns on SSRN. Here's the abstract:
Progressive property theory emerged a decade ago to challenge law and economics as the dominant theoretical mode of property law analysis. Offering a fresh look at the rights and obligations of ownership, progressive property theory argues, among other propositions, that property rules and institutions should further the ability of all people to obtain the basic resources necessary to engage in the social and political life of a community.
Meanwhile, housing justice campaigns being waged across the United States, promoting policies like inclusionary zoning and rent control, are frequently met by critics who make theoretical arguments about the fundamental nature of property. Housing advocates often cede the theoretical domain, and instead respond with pragmatic data-driven appeals or technical precedential arguments that, I argue here, would benefit from a more robust theoretical grounding of the sort progressive property theory could provide.
Progressive property theory, however, is yet to exert any measurable influence outside of legal academia. Scholars have offered a variety of critiques of the theory that may help to explain its limited impact. I argue that exogenous factors—those external to the theory itself—also hold significant explanatory force. I conclude that the law school clinic could serve as one “theory delivery mechanism” to infuse progressive property theory more broadly into U.S. law and legal institutions.
Monday, December 9, 2019
I am very sorry to share the news of Roger Bernhardt's passing. He taught for many years at Golden Gate University and was a huge name in real estate law. He was very active with both the American College of Real Estate Lawyers and the American College of Mortgage Attorneys and was a mentor to many junior lawyers and law professors. He will be dearly missed.
You can view his extensive scholarship by clicking here.
Tuesday, November 19, 2019
We are pleased to consider paper submissions for a forthcoming volume on "Disruptive Technology, Legal Innovation and the Future of Real Estate", edited by Prof. Amnon Lehavi and Dr. Ronit Levine- Schnur of the Harry Radzyner Law School and the Gazit-Globe Real Estate Institute at the Interdisciplinary Center (IDC) Herzliya.
The volume, with contributions by Benito Arruñada, Jan Veuger, Kat Grimsley, Catalina Goanta, Georg von Wangenheim, and others, offers original insights on emerging problems of property rights and real estate regulation in the face of new and disruptive technologies.
Submissions should be approximately 10,000 words and written in the author-date (Chicago) style.
The deadline for submission is no later than November 30th, 2019. We will accept a small number of contributions.
Previous volumes published in this series include:
Private Communities and Urban Governance: Theoretical and Comparative Perspectives (Springer, 2016), One Hundred Years of Zoning and the Future of Cities (Springer, 2018), and Measuring the Effectiveness of Real Estate Regulation: Interdisciplinary Perspectives (Springer, 2020).
To submit a paper for consideration, please email Ronit Levine-Schnur at email@example.com