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 email@example.com 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 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