Tuesday, November 6, 2018

Dickinson on State and Federal Law, Gravity, and the Public Use Doctrine

2018geralddickinsonsquare150x150Gerald S. Dickinson (Pittsburgh) has posted Federalism, Convergence, and Divergence in Constitutional Property (University of Miami Law Review) on SSRN. Here's the abstract:

Federal law exerts a gravitational force on state actors, resulting in widespread conformity to federal law and doctrine at the state level. This has been well recognized in the literature, but scholars have paid little attention to this phenomenon in the context of constitutional property. Traditionally, state takings jurisprudence—in both eminent domain and regulatory takings—has strongly gravitated towards the Supreme Court’s takings doctrine. This long history of federal-state convergence, however, was disrupted by the Court’s controversial public use decision in Kelo v. City of New London. In the wake of Kelo, states resisted the Court’s validation of the economic development justification for public use, instead choosing to impose expansive private property protections beyond the federal minima. This resistance thus raises a fundamental puzzle: despite the fracturing of public use doctrine following Kelo, states continue to converge around the force of and be lured by the Court’s regulatory takings jurisprudence. Why is this? This Article argues that the most persuasive explanation is the political economy; that is, where homeowners are perceived to be underprotected by Supreme Court decisions, state actors are more likely to diverge from federal doctrine to grant greater protections as opposed to when the challenger is a developer-landowner. The Court has not underprotected a homeowner in a regulatory takings challenge in a manner that would spark a similar post-Kelo state resistance. Few scholars have explored this mystery and offered conceptual and doctrinal explanations on the value of state divergence from federal takings doctrine in our federalist regime.

 

 

November 6, 2018 | Permalink | Comments (0)

Crocker on Takings Claims and Ripeness

CrockerKatherine Mims Crocker (Post-doc at Duke) has posted A Prudential Take on a Prudential Takings Doctrine (Michigan Law Review) on SSRN. Here's the abstract:

The Supreme Court is set to decide a case requesting reconsideration of a doctrine that has long bedeviled constitutional litigants and commentators. The case is Knick v. Township of Scott, and the doctrine is the “ripeness” rule from Williamson County Regional Planning Commission v. Hamilton Bank that plaintiffs seeking to raise takings claims under the Fifth Amendment must pursue state-created remedies first — the so-called “compensation prong” (as distinguished from a separate “takings prong”). This Essay argues that to put the compensation prong in the best light possible, the Court should view the requirement as a “prudential” rule rather than (as it has previously done) a constitutional one. It then argues that the Court should reject this doctrine not because it is a prudential rule, which would follow a larger trend in recent case discussions, but because it is a bad prudential rule. This path is the prudential one because casting doubt on prudential rules more generally could cause a significant set of additional doctrines to suffer unintended and unwelcome consequences.

 

 

November 6, 2018 | Permalink | Comments (0)

Burkhart on Allowing Private Sales in Mortgage Foreclosure

Burkh002Ann Burkhart (Minnesota) has posted Fixing Foreclosure (Yale Law & Policy Review) on SSRN. Here's the abstract:

Since the American Revolution, mortgage foreclosures have consisted of a public auction of the mortgaged property. Judges and state legislators at the time believed that an auction was the best way to obtain a fair price for the land. Though that belief soon proved to be mistaken, the sale method remains unchanged.

Before the real estate and mortgage markets crashed in 2007, only two significant empirical studies of foreclosure sales existed, and they involved small numbers of foreclosures. Because the crash resulted in millions of home foreclosures, it has provided a rich data source. As a result, economists, social scientists, and others have produced a wealth of empirical studies on foreclosure sales and their effects both before and after the crash. Three lines of research now clearly establish that foreclosure by public auction is seriously flawed. These studies first prove that, in this country, even a voluntary real estate auction normally produces a lower sale price than a private sale. A second line of studies shows that foreclosure usually is harmful not just for the land owner, but also for the lender, neighboring property owners, and the community. The third line of studies proves that property sells for more when, rather than foreclosing after default, a lender allows a private sale of the property. These studies make a very powerful case for foreclosure reform.

Fortunately, an established and effective method for selling foreclosed land already exists — listing it for sale with a real estate agent. Currently, the lender conducts a foreclosure, frequently purchases at the sale, and then lists the property for sale with a real estate agent. This process is time consuming, expensive, and harmful. Initially listing the property for sale with a real estate agent, rather than first auctioning it, eliminates these problems, and the success of the process has been proven. England, Ireland, Wales, and some Canadian provinces use this method very effectively, and it could readily be implemented in the United States.

November 6, 2018 | Permalink | Comments (0)

Monday, October 22, 2018

CFP: Oxford Studies in Private Law Theory

OUP
Oxford University Press is pleased to announce the launch of Oxford Studies in Private Law Theory, edited by Paul Miller (Notre Dame) and John Oberdiek (Rutgers), and to issue a call for papers for the first volume. 

Oxford Studies in Private Law Theory is a series of biennial volumes showcasing the best article-length work across private law theory.  The series will publish 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 May 6th, 2019.

All accepted papers will be presented at a workshop at Notre Dame’s Global Gateway campus in London in late summer/early fall 2019.  The Notre Dame Program in Private Law will cover the expense of contributors’ travel and accommodation.  

To submit a paper for consideration, please email John Oberdiek at oberdiek AT law.rutgers.edu.

October 22, 2018 | Permalink | Comments (0)

Wednesday, October 17, 2018

Sprankling on Property Rights in Cannabis and Questions of Federalism

SpranklingJohn251x304John Sprankling (McGeorge) has posted Owning Marijuana (Duke Journal of Constitutional Law & Public Policy) on SSRN. Here's the abstract:

Legal marijuana is the fastest-growing industry in the United States. Tens of thousands of new businesses have arisen to meet the demand created by over 34 million Americans who use marijuana. And the millions of pounds of marijuana grown, processed, and sold this year will generate more than $11 billion in revenue. This industry is premised on the assumption that marijuana ownership will be protected by law. But can marijuana be owned? This Article is the first scholarship to explore the issue.

Federal law classifies marijuana as contraband per se in which property rights cannot exist. Yet the Article demonstrates that marijuana can now be owned under the law of most states, even though no state statute or decision expressly addresses the issue. This conflict presents a fundamental question of federalism: Can property rights exist under state law if they are forbidden by federal law? The Article explains why federal law does not preempt state law on marijuana ownership.

This creates a paradox: state courts and other state authorities will protect property rights in marijuana, but their federal counterparts will not. The Article analyzes the challenges that this hybrid approach to marijuana ownership poses for businesses and individuals. It also examines the fragmented status of marijuana ownership in the interstate context, where business transactions involve states with conflicting approaches to the issue.

October 17, 2018 | Permalink | Comments (0)

Monday, October 15, 2018

JOB ANNOUNCEMENT: John Marshall-Chicago Seeks Property Visitor

Spring 2019 Full-Time Faculty Podium Visitors

The John Marshall Law School in Chicago seeks one or two full-time visiting faculty members for the Spring 2019 semester. We need coverage in the areas of Civil Procedure(evening course), Secured Transactions, and Estates & Trusts. The appointment is for one semester, but we will be seeking visitors for the 2019–2020 academic year in these areas plus some combination of Evidence, Criminal Law, and Property.

Candidates should have taught full-time at an ABA-approved law school.

To Apply:

Submit a current CV, cover letter, and three professional references to Associate Dean David Sorkin at 7sorkin@jmls.edu. The review will begin immediately and continue on a rolling basis until one or both positions are filled. We may request a Skype or in-person interview and submission of prior teaching evaluations.

The John Marshall Law School, finding any invidious discrimination inconsistent with the mission of free academic inquiry, does not discriminate in admission, services, or employment on the basis of race, color, sex, religion, national origin, ancestry, age, disability, veteran status, marital status, sexual orientation, gender identity, gender expression, genetic characteristics, or any other characteristic protected by applicable law.

October 15, 2018 | Permalink | Comments (0)

Wednesday, October 10, 2018

JOB ANNOUNCEMENT: UMKC Seeks Visiting Property Prof

Job Announcement – Visiting Assistant or Associate Professor for Property

The University of Missouri-Kansas City School of Law seeks to hire a visiting professor for the Spring 2019 semester to teach Property II and perhaps one other course that meets an area of need. 

UMKC School of Law seeks faculty members with a strong commitment to educating lawyers for the twenty-first century, and those who will actively participate in our collegial, collaborative community. It is the urban law school of the University of Missouri System and is located on a beautiful landscaped campus in the Country Club Plaza area of Kansas City, Missouri, a vibrant metropolitan area of more than two million people. UMKC offers courses leading to J.D. or LL.M. degrees for approximately 400 students. 

UMKC is an equal access, equal opportunity, affirmative action employer that is fully committed to achieving a diverse faculty and staff. Equal Opportunity is and shall be provided for all employees and applicants for employment on the basis of their demonstrated ability and competence without unlawful discrimination on the basis of their race, color, national origin, ancestry, religion, sex, sexual orientation, gender identity, gender expression, age, genetic information, disability, or protected veteran status. For more information, call the Vice Chancellor – Human Resources at 816-235-1621. To request ADA accommodations, please call the Office of Affirmative Action at 816-235-1323.

Applicants must apply through the UMKC’s Human Resources website: https://www.umkc.edu/hr/career-opportunities/default.asp.

Inquiries may be sent to:

Professor Kenneth Ferguson
Chair Appointments Committee
500 E. 52nd St.
Kansas City, MO 64110
FergusonK@umkc.edu

October 10, 2018 | Permalink | Comments (0)

Saturday, October 6, 2018

Top Ten Most Cited Property Law Professors @Brian Leiter's Law School Reports Blog

Check out Brian Leiter's blog for the top ten most-cited property professors in the U.S. for the period between 2013-2017.

October 6, 2018 | Permalink | Comments (0)

Monday, October 1, 2018

CFP: Socio-Legal Approaches to Property @LSA

LSAThis just in from John Felipe Acevedo (Alabama): 

CALL FOR PAPERS: Socio-Legal Approaches to Property – CRN 49

Panels to be held at the Law and Society Association Annual Meeting
May 30-June 2 2019, Washington DC

Abstract Deadline – October 25th 2018 

Submissions

We invite original, unpublished submissions from scholars at any stage of their careers. We are interested in empirically-based papers examining any issues related to the treatment of land and other tangible things as property. Topics may include but are not limited to: land tenure; indigenous forms of property; collectives and property pluralism; land use; symbols of property; resource extraction; civil forfeiture, inheritance; embodied property; redistribution of property; social movements and resistance to property. We will consider all empirically-grounded papers that focus on tangible property, anywhere in the world. All kinds of empirical methods are welcome, including historical, statistical, interviews, comparative, ethnographic, case study, discourse analysis, etc. Also note that papers submitted for publication, but not yet accepted, are also welcome.

If you have a book you would like discussed in a panel session, then please get in touch as we are hoping to have an “authors meet readers” session. Also, if you would be interested in serving as a session chair or discussant please let us know.

We are hoping to have as many panels as possible, so please submit your work, and encourage your colleagues and students to the same!

To submit your paper for consideration, please provide the following information at our website https://slap-propertylaw.org/ or email Antonia Layard, Antonia.layard@bristol.ac.uk or Dave Cowan, d.s.cowan@bristol.ac.uk

•         A 100-250 word abstract describing the topic, methodological approach, and findings (or expected findings) of your paper. For more detailed instructions on composing abstracts, see LSA website.

•         The paper title

•         Your contact information including affiliation, discipline(s), and email

 Submission deadline

The deadline for submission is 11:59 PM Eastern Time on October 25th.

We will notify all authors about the results of their submissions by email within about a week. If accepted, authors will receive instructions about how to submit abstracts directly to the Law and Society Association which must be done before 7th November 2018.

Questions

If you would like to be removed from our mailing list please contact John Acevedo, [jacevedo@law.ua.edu]jacevedo@law.ua.edu. If you have questions regarding abstract submission please contact either Antonia Layard Antonia.layard@bristol.ac.uk or Dave Cowan d.s.cowan@bristol.ac.uk.

October 1, 2018 | Permalink | Comments (0)

Sunday, September 16, 2018

REMINDER CFPs: AALS Property Law Section (Program Panel & WIP Session)

AALS

REMINDER: The AALS Section on Property Law is pleased to announce two Calls for Papers for the AALS 2019 Annual Meeting in New Orleans, Louisiana: 

Call for Papers for AALS Section on Property Law: 
Property, Capitalism, and Structural Inequality 

Property Law Program at the AALS Annual Meeting 
Friday, January 4th, 2019 | 10:30am ‐ 12:15pm 
Property, Capitalism, and Structural Inequality 

With the rise of the individualized ‘gig economy’, the increasing reliance on financial actors in economic and urban development projects, the privatization of pension arrangements and attacks on unions, and the scandals of inequality and housing crises in many places around the world, it is hard not to recognize that the role of property in globalized forms of capitalism has been shifting over the past decades. These transformations manifest themselves legally in the forms of property, the identities of property holders - and relatedly, the patterns of social life - that are seen as legitimate and as worthy of protection and perpetuation. Newly empowered agents, governance mechanisms, and discourses provide the conceptual and material architecture that support these transformations. This panel attempts to contextualize those shifts by engaging with local, regional, and global instantiations of transnational patterns of property concentration and exclusion, and their justifications. 

Please submit your 300 – 400 word abstract submissions in Word or PDF to the Property Section Chair Priya Gupta at psgupta@swlaw.edu with “Submission: AALS PropertyCapitalism” in the subject line. Submissions must be received by August 31, 2018 EXTENDED: September 21, 2018. Preference will be given to abstracts of projects that are substantially complete and that offer novel scholarly insights. Untenured scholars in particular are encouraged to submit their work. 

Presenters will be responsible for paying their registration fee and hotel and travel expenses. 

Call for Papers for AALS Section on Property Law: 

Works-in-Progress Session at the AALS Annual Meeting 
Thursday, January 3rd, 2019 | 3:30pm – 4:45pm 

The AALS Property Law Section is organizing a works-in-progress session for pre-tenure scholars at this year’s annual meeting. This is meant to be an opportunity to present and get feedback on drafts that will not be published as of January 2019 and where feedback would be helpful. In addition to having the opportunity to share work through the panel, presenters will be matched with a senior scholar who will provide comments. 

Please submit your 300 – 400 word abstract submissions in Word or PDF to the Property Section Chair Priya Gupta at psgupta@swlaw.edu with “Submission: AALS Property WorksInProgress” in the subject line. Submissions must be received by August 31, 2018 EXTENDED: September 21, 2018. 

Presenters will be responsible for paying their registration fee and hotel and travel expenses. 

** Please also note that the Property Section Business Meeting will be held on Friday, January 4 from 7am - 8:30am. ** 

September 16, 2018 | Permalink | Comments (0)

Sunday, September 9, 2018

CFP: ABA Journal of Affordable Housing & Community Development Law

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ABA Journal of Affordable Housing & Community Development Law
Call for Papers
Sustainability in Affordable Housing, Fair Housing & Community Development

Abstracts due October 15, 2018

Drafts due January 1, 2019

 The Journal of Affordable Housing & Community Development Law(the Journal)invites articles and essays on the theme of sustainability in affordable housing, fair housing and community development. Contributions couldexplore sustainability from environmental, economic, social or political perspectives and address topics ranging from green building and disaster preparedness/response to affordable housing preservation to funding for local fair housing organizations. Articles and essays could analyze new issues, tell success stories and draw lessons, or explore problems and propose legal and policy recommendations. The Journalwelcomes essays (typically 2,500–6,200 words) or articles (typically 7,000-10,000 words). 

In addition, the Journalwelcomes articles and essays on any of the Journal’straditional subjects: affordable housing, fair housing and community/economic development. Topics could include important developments in the field; federal, state, local and/or private funding sources; statutes, policies or regulations; and empirical studies.

The Journalis the nation’s only law journal dedicated to affordable housing and community development law.  The Journaleducates readers and provides a forum for discussion and resolution of problems in these fields by publishing articles from distinguished law professors, policy advocates and practitioners.

Interested authors are encouraged to send an abstract describing their proposals to the Journal’s Editor-in-Chief, Tim Iglesias, at iglesias@usfca.eduby October 15, 2018. Submissions of final articles and essays are due by January 1, 2019.The Journal also accepts submissions on a rolling basis. Please do not hesitate to contact the Editor with any questions.

September 9, 2018 | Permalink | Comments (0)

Saturday, September 8, 2018

Professors' Corner: Sustainable Zoning in a Post-Industrial City

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Professors' Corner
A FREE monthly webinar featuring a panel of law professors, addressing topics of interest to practitioners of real estate and trusts/estates
Members of DIRT are welcome to register and participate
Tuesday, September 11, 2018
12:30 p.m. Eastern/11:30 a.m. Central/9:30 a.m. Pacific


Hartford's Experiment: Sustainable Zoning in a Post-Industrial City

Speaker:

Sara C. Bronin, Thomas F. Gallivan Chair in Real Property Law and Faculty Director, Center for Energy and Environmental Law, University of Connecticut School of Law

Moderator:

Professor R. Wilson Freyermuth, University of Missouri Law School
 
Comprehensive zoning reform is a critical legal tool for urban revitalization of post-industrial cities and towns. Professor Bronin’s presentation will provide context for why re-zonings may be desirable, which communities have adopted them, and associated procedural and substantive issues. 
 
Using Hartford as an example, Professor Bronin will discuss how the city navigated its comprehensive re-zoning to advance four central goals—economic growth, environmental sustainability, access and mobility, and food security—and the lessons learned during the process.
 
You may register for the program at https://ambar.org/ProfessorsCorner

September 8, 2018 | Permalink | Comments (0)

Thursday, August 30, 2018

Casado-Perez on Legal Constraints in Public Property Management

Vanessa-headshot-croppedVanessa Casado-Perez (Texas A&M) has published A Street View of Property (Hastings Law Journal) on SSRN. Here's the abstract:

Parking on public streets is scarce. The current allocation system for parking spots based on rule of capture coupled with low parking fees creates a tragedy of the commons scenario. The misallocation of parking has consequences for commerce, for access to public spaces, and for pollution and congestion. Municipalities have not widely adopted the solution that economists propose to solve this scarcity problem: increase the price. Politics aside, the reluctance of municipalities to do so may be explained by the unique nature of public property as reflected in well-rooted legal and societal constraints. This unique nature helps explain, for example, municipalities’ ban of software applications (apps) allowing occupants of curbside parking to “sell” their spots to would-be occupants in Boston or San Francisco. While the ban may be justified, the unique nature of public property is not incompatible with some well-designed, efficiency-oriented policies, as this paper will put forward. This article distills the legal constraints on curbside parking and any other public property management by drawing on case law regarding parking meters, case law on public resources managed in trust for the public, and decisions by municipalities regarding parking apps and privatization of parking meters. These constraints include, among others, that public property shall not be used to raise revenue, although placing a price on it may pursue other regulatory aims consistent with public use, or that municipalities shall not lose control of the public spaces dedicated to curbside parking. At a normative level, the above constraints provide a framework for assessing policies regarding curbside parking and, by extension the management of any other public property resources. At a positive level, the article proposes ways to make efficiency compatible with the principles guiding the management of public property. It analyzes to what extent the efficiency oriented policies that would translate into a price increase—variable pricing, tradable property rights, and privatization—clash with those principles constraining the monetization of public property. In addition, the article concludes by pointing to other situations where its analytical framework could be extended, such as other uses of public streets (for instance, use of public bus stops by shuttle-buses of private companies) or existing practices in connection to public resources of a similar nature (for instance, semi-privatization of beaches by surfers).

August 30, 2018 in Recent Scholarship | Permalink | Comments (0)

Tuesday, August 28, 2018

Stein on the Inequality Effects of Dynamic Pricing in the Sharing Economy

GregGregory Stein (Tennessee) has posted Will the Sharing Economy Increase Inequality on SSRN. Here's the abstract:

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.

August 28, 2018 | Permalink | Comments (0)

Monday, August 27, 2018

Alexander on Human Flourishing and the Right to Destroy

AlexanderGregory Alexander (Cornell) has posted Of Buildings, Statues, Art, and Sperm: The Right to Destroy and the Duty to Preserve (Cornell Journal of Law & Public Policy) on SSRN. Here's the abstract:

Markets require some sort of property rights, including transferability. Without transferable property rights market relations cannot get off the ground. Moreover, markets assume that these rights refer to some resource, some thing that is the object of the market relationship. In this sense property is, as some commentators recently have argued, about things. Saying that property is about things doesn’t tell us very much, though. It tells us nothing about the sorts of things that are the object of property rights, and it gives no indication whether property rights are uniform and fixed regardless of the sort of thing involved. Things are not all of a piece; pencils are not Picassos. There is no good reason to think that the law of property should treat all things alike. Modularity can take us only so far. Property law does and should make distinctions regarding the rights that owners have or don’t have and the extent of those rights depending upon the sorts of things they own. This Article investigates distinctions that property law does draw or should draw with respect to the right to destroy. That right has important implications for the market because the consequence of full exercise of the right, i.e., destruction of the thing, is complete and irrevocable removal of an asset from future market transactions. Where the asset involved is of a fungible sort, a pencil, for example, there is little cause for concern about this loss. The losses about which we worry, however, are those involving non-fungible items, pearls of great price. Such losses include historic buildings and important works of art. Disputes involving the right to destroy have ranged farther, though. Among the most contentious and sensitive of these are disputes over the disposition of human reproductive material. These controversies too have implications for the market, as human sperm and eggs may be sold and bought under certain conditions. Despite its importance, the right to destroy is one of the least discussed twigs in the proverbial bundle of rights constituting ownership. A recent article by Lior Strahilevitz analyzes the right in detail. Other than his article, only an earlier article by Edward McCaffery, and 1999 book by the late Joseph Sax, Playing Darts with a Rembrandt, have discussed the right to destroy within the past several decades. McCaffery’s essay takes the position that most courts have adopted, rejecting the claim that owners have the right to destroy that which they own. McCaffery regards such a right as “an embarrassment in Anglo-American law.” This appears to be the conventional wisdom, with the recent edition of Black’s Law Dictionary excluding the right to destroy from the incidents of ownership included in its definition of ownership. More recently, however, Lior Strahilevitz has provided a powerful defense of the right to destroy. Strahilevitz bases his argument substantially on expressive values implicated in an owner’s preference to destroy an object that he owns. Sax’s book opposes a right to destroy with respect to works that have cultural significance. This Article analyzes the right to destroy from the perspective of the human flourishing theory that I have been developing over the past several years. I will discuss four controversies in which the related questions whether owners have a right to destroy what they own and whether they have obligations to preserve their property. The settings that I will examine, albeit briefly, are historic preservation, artists’ destruction of their own work, removal of public statues, and destruction of frozen sperm. My aim is to show how the human flourishing theory provides an illuminating framework for analyzing what is at stake in disputes over an owner’s asserted right to destroy something that he owns. Hopefully, this framework will provide a more satisfying, analytically and morally, means of resolving such disputes. To set the stage for these case studies, I begin with a brief summary of Lior Strahilevitz’s argument in support of the right to destroy.

August 27, 2018 in Recent Scholarship | Permalink | Comments (0)

Tuesday, August 21, 2018

Lovett on the Concept of Good Faith in a Mixed Jurisidction

LovettFor a little comparative scholarship from a mixed jurisdiction, John Lovett (Loyola) has posted Good Faith in Louisiana Property Law (Louisiana Law Review) on SSRN. Here's the abstract:

Good faith plays a pivotal role in four core areas of Louisiana property law that were the subject of an intense burst of law reform activity between 1977 and 1982. This article addresses the function of good faith in those areas: (1) as a prerequisite to the establishment of a predial servitude benefiting the owner of a building that encroaches on the property of a neighbor (Article 670 of the Louisiana Civil Code); (2) as a mediating device allocating the rights of an original owner of a corporeal movable and a subsequent transferee or acquirer under the bona fide purchaser doctrine (Articles 518 to 525 of the Louisiana Civil Code); (3) as a defining characteristic establishing rights and obligations under the law of accession when a person possesses immovable property without title (Article 487 of the Louisiana Civil Code); and (4) as a prerequisite for the acquisition of ownership or other real rights in immovable property by ten year acquisitive prescription (Articles 3480 to 3482 of the Louisiana Civil Code).

The article first observes that in all of the instances in which good faith is employed in Louisiana property law an initial owner of a corporeal thing either risks losing all or a portion of her property rights to another person who has invaded the owner's sphere of exclusive control or may be required to compensate another person who has acquired possession of the thing. In other words, the law shifts a property entitlement to someone who would ordinarily not be entitled to any legal protection. The article argues that in these entitlement shifting situations the Louisiana Civil Code uses the concept of good faith as a crucial mediating device, reallocating the rights and obligations of the original owner and the new player who has arrived on the scene either uninvited or through some intermediary transaction.

The article demonstrates that the concept of good faith has two essential components in those contexts: honesty and carefulness. Honesty is a fundamental and constant requirement for good faith status. Carefulness, however, plays a more variable role. In the context of building encroachments, the Civil Code only requires a minimal level of carefulness-no knowledge of obvious red flags. Under the bona fide purchaser doctrine, different market situations can lower or raise the level of carefulness required to achieve good faith status. In the law of accession, a good faith possessor must rely on a written title translative of ownership but otherwise must only be innocently unaware of defects. Finally, under the law of acquisitive prescription of immovables, a good faith possessor must rely on a just title and meet a rigorous standard of objective reasonableness.

This article shows that that as the consequences of the entitlement shifting rule increase, good faith is transformed from a relatively simplistic and mechanistic tool focused primarily on honesty to one that becomes increasingly precise, exacting and ethically responsive, focusing more and more on the transactional and contextual carefulness of the good faith claimant's actions-and sometimes on the relative carelessness of other parties in a property relationship. The article concludes by speculating on what Louisiana property law might gain and lose if the notion of good faith were banished from consideration.

August 21, 2018 | Permalink | Comments (0)

Friday, August 3, 2018

CFP: Climate Change & City Planning @Texas A&M

This just in from Timothy Mulvaney (Texas A&M). The conference looks to be quite an interesting gathering, which includes a key note address by Micheal Gerrard (Columbia).

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August 3, 2018 | Permalink | Comments (0)

Saturday, July 21, 2018

CFP: Registration Open for the CSLSA 2018 Scholarship Conference @Texas A&M Law

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Registration is now open for the Central States Law Schools Association 2018 Scholarship Conference, which will be held on Friday, October 12 and Saturday, October 13 at the Texas A&M University School of Law in Fort Worth, Texas. We invite law faculty from across the country to submit proposals to present papers or works in progress.

CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend.

Please click here to register. The deadline for registration is September 1, 2018.

For more information about CSLSA and the 2018 Annual Conference please subscribe to our blog. We look forward to seeing you in Forth Worth!

July 21, 2018 | Permalink | Comments (0)

Monday, July 2, 2018

The High Cost of Rental Housing in 2018

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Happy Monday, property law profs! Last week, the National Low Income Housing Coalition released its annual report titled Out of Reach 2018. The basic takeaway is that there's nowhere in the US where a full-time worker (no over-time) earning minimum wage can afford a decent two-bedroom apartment. Here's an excerpt from the study:

The report’s Housing Wage is an estimate of the hourly wage a full-time worker must earn to afford a rental home at HUD’s fair market rent (FMR) without spending more than 30% of his or her income on housing costs. FMRs provide an estimate of what a family moving today can expect to pay for a modestly priced rental home in a given area. This year’s findings demonstrate how far out of reach modestly priced housing is for the growing low-wage work force, despite recent wage growth, and for other vulnerable populations across the country.

The 2018 national Housing Wage is $22.10 for a modest two-bedroom rental home and $17.90 for a modest one-bedroom rental home. Among the 50 states and the District of Columbia, the two-bedroom Housing Wage ranges from $13.84 in Arkansas to $36.13 in Hawaii. The five metropolitan areas with the highest two-bedroom Housing Wages are Stamford-Norwalk, CT ($38.19), Honolulu, HI ($39.06), Oakland-Fremont, CA ($44.79), San Jose-Sunnyvale-Santa Clara, CA ($48.50), and San Francisco, CA ($60.02).

A full-time worker earning the federal minimum wage of $7.25 needs to work approximately 122 hours per week for all 52 weeks of the year, or approximately three full-time jobs, to afford a two-bedroom rental home at the national average fair market rent. The same worker needs to work 99 hours per week for all 52 weeks of the year, or approximately two and a half full-time jobs, to afford a one- bedroom home at the national average fair market rent.In no state, metropolitan area, or county can a worker earning the federal minimum wage or prevailing state minimum wage afford a two-bedroom rental home at fair market rent by working a standard 40-hour week. In only 22 counties out of more than 3,000 counties nationwide can a full-time minimum- wage worker afford a one-bedroom rental home at fair market rent. These 22 counties are all located in states with a minimum wage higher than $7.25. Higher minimum wages are important, but they are not the silver-bullet solution for housing affordability. Thirty-eight local jurisdictions have their own minimum wages higher than the state or federal minimum-wage, but all fall short of the local one-bedroom Housing Wage.

An interesting feature of the report is that it includes an interactive map of the US where you can focus-in on a state and see the average hourly wage and hours of work per week need to afford to rent a 2 bedroom home. For example, Louisiana would require $16.63 per hour and a 92-hour work week. Oklahoma would require $15.41 per hour and a 85-hour work week. New York requires $30.03 per hour and a 115-hour work week. For perspective, the federal minimum wage is $7.25 per hour, and only a handful of states have laws that require higher.

Now of course, not everywhere in states like New York does one have to earn that much and work that long to afford a place to rent. To that end, the interactive map allows the user to zero-in on many zip codes within a state to get more customized data.

When you cover landlord-tenant law, this is a really great tool to use in class. This, used in conjunction with the Urban Institute's mortgage origination map, can help students see the real world effects of our housing economy--who gets what kind of tenure and what they pay for it. Have a great week!

July 2, 2018 | Permalink | Comments (0)

Friday, June 29, 2018

SUMMER READING: Land, Money, and Mortgages

Land-creditFor all the real estate finance nerds out there (me!), there's a great new book out from Palgrave called Land and Credit: Mortgages in the Medieval and Early Modern European Countryside, edited by Chris Briggs & Jaco Zuiderduijn. It's a really interesting historical read that I highly recommend. Take a look at this chapter and abstract, posted to SSRN by its author David Waddilove (Harvard Project on the Foundation of Private Law), titled Why the Equity of Redemption?:

The ‘equity of redemption’ is an equitable doctrine undergirding the law of secured lending in the common-law world. It holds that despite any legal forms to the contrary, a borrower remains the true owner of pledged/mortgaged property, with a right to redeem such property upon payment of principal, interests, and costs at any time until a court of equity forecloses a borrower’s interest. This doctrine originated in the English Court of Chancery in the early-modern period, and coincided with a significant expansion in the use of mortgages.

This chapter explores why the equity of redemption arose. It does so by situating the doctrine in the social context of its origin in early modern England. It shows that several traditional explanations for the doctrine, such as the Chancery offering programmatic support for the landed classes, or seeking to capture jurisdiction and increased business and fees from the common-law courts, or intentionally providing a counterweight to the weak bargaining power of mortgagors, are likely misunderstandings. Instead, primary sources suggest that the doctrine is best understood as judicial enforcement of social norms related to mortgage debts in preference to legal technicalities; the equity of redemption was enforcement of “real-world” expectations over legal rights. Why the equity of redemption arose is therefore because it was the most obviously “fair” or intuitively “reasonable” way to address mortgage forfeiture at the time. The equity of redemption was the layman’s response to mortgage forfeiture rather than the lawyer’s.

June 29, 2018 | Permalink | Comments (0)