Tuesday, March 5, 2019
The Mercer University School of Law seeks one or more experienced full-time visiting faculty member(s) (1) to teach two sections of Legal Writing II with between 20 and 30 students during the fall semester of 2019 and (2) to teach Real Estate Transactions and/or Wills and Trusts during either the fall or spring semester of the 2019-20 school year. This is a one-year visiting appointment with the possibility of extension. Candidates who will add to the diversity of our faculty are particularly encouraged to apply.
Here's a link for more details.
Wednesday, February 27, 2019
This just in from Tim Iglesias (San Francisco):
ABA Journal of Affordable Housing & Community Development Law
Call for Papers
The State of the Low Income Housing Tax Credit Program:
What’s Working, Problems, Solutions and Visions for the Future
Drafts due May 1, 2019
TheJournal of Affordable Housing & Community Development Law(the Journal)invites articles and essays on the theme of the state of Low Income Housing Tax Credit program. What’s working? What are important problems/issues and proposed solutions? What are visions for the future? 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. Submissions of final articles and essays are due by May 1, 2019. Please email abstracts and final drafts to the Journal’s Editor-in-Chief, Tim Iglesias, at email@example.com. The Journal also accepts submissions on a rolling basis. Please do not hesitate to contact the Editor with any questions.
Thursday, February 21, 2019
Not atypically, the Supreme Court in Horne interprets the canonical Nollan narrowly as a case about developer exactions. Viewed that way, Nollan does not speak to the issue in Horne: the raisins that the government took from the owners were not surrendered in exchange for explicit permission to engage in an activity the government either did or could forbid.
But Nollan stands for a far broader principle: the government should not be induced to reject a policy instrument that necessitates taking steps that would otherwise constitute a compensable taking in favor of an alternative policy instrument that does not give rise to a compensation obligation if (a) it meets the same purpose as the non-compensable action would have met and (b) the owner is neutral toward, or prefers, the policy instrument that includes a traditional taking.
In Nollan itself, the Court is clear that the state should not be discouraged from using its preferred policy instrument to protect public view of the ocean (allowing development of a bigger, view blocking structure and seizing a viewing easement on the landowner’s property) rather than an inferior instrument (refusing to permit development) by being forced to compensate when it seizes the easement. If an owner accepts the state’s offer to surrender the easement (rather than merely refusing to develop) we know that the deal is Pareto superior.
In Horne, the federal government should not be induced to use an inferior policy instrument that does not give rise to a duty to compensate (ex ante production quotas or ex post restrictions on raisin sale) rather than a superior one (seizing raisins once market conditions are known) by being forced to compensate only if it uses the instrument that involves a traditionally compensable physical seizure.
Though it is generally easiest to tell in exaction cases that the owner prefers the state’s favored policy choice when the owner surrenders property in exchange for a permit, it is simple to tell in Horne as well because the owners retain a contingent interest in the profits earned on the sale of seized raisins, and any rational grower would prefer that to a simple sale restriction.
Monday, February 11, 2019
The John Marshall Law School in Chicago seeks two or more experienced faculty members to serve as full-time visiting professors for the 2019-2020 academic year (one or both semesters). We need coverage in the areas of Civil Procedure, Corporations, Employee Benefits, Estates & Trusts, Income Taxation, Legal Research and Writing, and Property. Candidates must have law school teaching experience. It is contemplated that the successful candidates will be current full-time faculty members at ABA-approved law schools, although others with extraordinary credentials may be considered.
To apply, submit a current CV, cover letter, and three professional references to Associate Dean David Sorkin at firstname.lastname@example.org. The Committee will begin reviewing applications as they are received and will continue on a rolling basis until the positions are filled. We may conduct an interview via Skype or a similar platform or in person, and may request submission of teaching evaluations or other materials.
The John Marshall Law School is committed to diversity, access, and opportunity. Subject to the approval of our accreditors, JMLS is in the process of being acquired by the University of Illinois at Chicago, with an anticipated closing date in August 2019. For more information, visit www.jmls.edu and jmls.uic.edu.
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.
Thursday, February 7, 2019
Anyone who knows me, knows I've been obsessed over the past few years with mortgage servicers (what I call the "mortgage middlemen"). My beef with them is that they hold enormous power over homeowners, yet homeowners have no choice in their selection (or quality) and servicers are notoriously abusive, negligent, or incompetent when it comes to dealing with homeowners in financial distress. Shameless plug: have you ever wanted to know a lot more about mortgage servicers and the legal and financial issues they present? If so, check out my new book with CUP (just released today!) titled "Foreclosed: Mortgage Servicing and the Hidden Architecture of Homeownership in America."
Interestingly, the U.S. Fifth Circuit recently decided a case called Christina Trust v. Riddle where a homeowner brought a claim against one of our country's most infamous and troubled mortgage loan servers (Ocwen Financial [and lesser known servicer BSI was added as well]) for failing to properly handle the homeowner's loss mitigation application as required under the Real Estate Settlement Procedures Act (another plug: chapter 3 of my book has some really horrific stories of how servicers treated homeowners and "lost" their loss mitigation applications in the wake of the financial crisis):
Riddle asserts that Ocwen and BSI received timely loss-mitigation applications but failed to consider them and notify Riddle of her loss-mitigation options.
. . . Ocwen and BSI failed to comply with their RESPA obligations under 12 C.F.R. § 1024.41. Specifically, Ocwen and BSI violated 12 C.F.R. § 1024.41(c) because they received a complete or facially complete loss mitigation applications [sic] at least 37 days before a scheduled foreclosure sale, and yet failed to consider Mary for all loss mitigation options and notify Mary in writing of all loss mitigation options available to her.
Riddle, our homeowner, also asked the court to impose vicarious liability up from the servicer to the actual owner of the loan (which was Christina Trust - a securitization trust created after the loan was originated by Bank of America). The court stated that:
. . . Riddle's theory of vicarious RESPA liability theory requires pleading facts that suggest an agency relationship between Bank of America and either Ocwen or BSI.
Unfortunately, Riddle's lawyer did not undertake an agency analysis in the pleadings, which the court found problematic:
Without facts suggesting an agency relationship, even if everything Riddle alleges in her complaint is true, her complaint does not "state a [RESPA] claim" against Bank of America at all—let alone one that is "plausible on its face."
What is more problematic, however, is that the court didn't seem to think that, even if the pleading did include an agency analysis, Riddle could prevail in the vicarious liability claim:
Even if Riddle had pleaded facts suggesting such a relationship, we hold in the alternative that the district court appropriately dismissed her RESPA claim for another reason: Bank of America, as a matter of law, is not vicariously liable for the alleged RESPA violations of its servicers. . .
A loan servicer's obligation to follow this regulation derives from RESPA itself, which also confines this obligation to servicers alone. . . The statute prescribes that "[w]hoever fails to comply with any provision of this section shall be liable to the borrower for each such failure[.]" . . . Because only "servicers" can "fail to comply" with 12 U.S.C. § 2605(k)(1)(E), only servicers can be "liable to the borrower" for those failures. . . . The text squarely settles the issue.
I find this case and its analysis troubling for the same reasons I find cases involving servicer liability for their contractors and subcontractors troubling (as I describe in Chapters 6 and 8 of my book and here). Servicers derive their power to deal with homeowners from the trust that owns the mortgage loans (i.e., from the mortgage-backed securities investors). Every pooling and servicing agreement in the country makes this clear. These agreements also give a tremendous amount of discretion to the servicer (which is often ill-equipped and ill-resourced to deal with the high-touch activities that are needed to successfully deal with defaulting and distressed homeowners). However, when servicers misbehave, the investors do not bear the brunt of the conduct of their servicer-servants. This, in my view, gives very little incentive for securitization sponsors and those that select servicers to do a thorough job vetting servicing firms before deciding which ones to manage the loans in various trust pools. It also gives aggrieved homeowners a diminished chance of actual recovery if the litigation results in a judgment against a thinly capitalized servicing firm. Consider that in the UCC article 9 context, creditors who undertake repossession activities cannot relieve themselves of liability by saying that the repossession company they hire is not, in fact, their agent. Rather, creditors are automatically liable (i.e., vicariously liable) for the acts of their agents in undertaking the repossession of collateral if a breach of the peace occurs. See U.C.C. 9-609 cmt 3. So, why not servicers too? In some ways, article 9 debtors are better off than homeowners with a mortgage. As I described in chapter 8, tenants are also given superior protections. So much for the sanctity that the law places on the castle-like home.
In sum, homeowners continue to face legal hurdles in asserting their rights against servicers, driven largely by the fact that current legal regimes are ill-equipped to deal with (or even fully-recognize) the mortgage loan securitization structure. For solutions on reforming mortgage and regulatory law in this space (one last shameless plug), check out Foreclosed: Mortgage Servicing and the Hidden Architecture of Homeownership in America here!
Thursday, January 31, 2019
Just in from Lisa Alexander and Thomas Mitchell, the Texas A&M University School of Law is hosting its annual Real Property Law Schmooze today and Saturday (Feb 2) in Fort Worth. As usual, there's a great line-up of all-star property scholars. This year's theme is Where Do We Go From Here: Fair Housing and Community Development at a Crossroads. The keynote speaker is Vicki L. Been, the Boxer Family Professor of Law at NYU Law School, Affiliated Professor of Public Policy of the NYU's Robert F. Wagner Graduate School of Public Service, Faculty Director at the NYU Furman Center, and Former Commissioner of Housing Preservation and Development for the City of New York. Here's the theme summary:
The flagship event of the Program in Real Estate and Community Development Law at Texas A&M University School of Law, the Real Property Law Schmooze is an invitation-only workshop focused on the intellectual engagement of property law scholars. This annual event affords property law scholars the opportunity to share unpublished works-in-progress or early-stage ideas with other leading property law scholars at Texas A&M University and beyond. For the past two years, the Program has invited between 15-20 external property law scholars from law schools across the country to the Schmooze. The Schmooze has also been highlighted on national property law blogs.
The 2019 “Where Do We Go from Here? Fair Housing and Community Development at a Crossroads" Schmooze invites 20 legal scholars with expertise in either fair housing law, urban and rural property law, and/or community development law to present unpublished works-in-progress or early-stage ideas. In the wake of the 50th anniversary of the Fair Housing Act, and as federal support for fair housing, affordable housing, and community development dwindles, the papers will loosely relate to strategies that can help the fair housing and community development fields bridge longstanding conflicts and come together during this critical time.
Sunday, January 20, 2019
Property Law in a Globalizing World identifies the paramount challenges that contemporary processes of globalization pose for the study and practice of property law. It offers a straightforward analysis of legal scenarios implicating cross-border property rights, covering a broad range of resources, from land, goods, and intangible financial assets, to intellectual property, data, and digital assets. This is the first scholarly book offering a detailed study of legal strategies that can decrease the gap between the domestic tenets of property law and the cross-border nature of markets, interpersonal networks, and technology. It shows how strategies of soft law, conflict of laws, harmonization and supranationalism rely to various degrees on cross-border property norms and institutions, and studies the proprietary features of security interests and priorities to assets in insolvency in a global setting. It also shows how digital technology such as blockchain can revolutionize the system of cross-border property rights.
Tuesday, January 8, 2019
This just in from Emily Grant (Washburn):
CALL FOR PRESENTATION PROPOSALS
Institute for Law Teaching and Learning Summer Conference
“Teaching Today’s Law Students”
June 3-5, 2019
Washburn University School of Law
The Institute for Law Teaching and Learning invites proposals for conference workshops addressing the many ways that law professors and administrators are reaching today’s law students. With the ever-changing and heterogeneous nature of law students, this topic has taken on increased urgency for professors thinking about effective teaching strategies.
The conference theme is intentionally broad and is designed to encompass a wide variety of topics – neuroscientific approaches to effective teaching; generational research about current law students; effective use of technology in the classroom; teaching first-generation college students; classroom behavior in the current political climate; academic approaches to less prepared students; fostering qualities such as growth mindset, resilience, and emotional intelligence in students; or techniques for providing effective formative feedback to students.
Accordingly, the Institute invites proposals for 60-minute workshopsconsistent with a broad interpretation of the conference theme. Each workshop should include materials that participants can use during the workshop and when they return to their campuses. Presenters should model effective teaching methods by actively engaging the workshop participants. The Institute Co-Directors are glad to work with anyone who would like advice on designing their presentations to be interactive.
To be considered for the conference, proposals should be one page (maximum), single-spaced, and include the following information:
- The title of the workshop;
- The name, address, telephone number, and email address of the presenter(s); and
- A summary of the contents of the workshop, including its goals and methods; and
- A description of the techniques the presenter will use to engage workshop participants and make the workshop interactive.
The proposal deadline is February 15, 2019. Submit proposals via email to Professor Emily Grant, Co-Director, Institute for Law Teaching and Learning, at email@example.com.
Wednesday, January 2, 2019
Brandon Weiss (UMKC) has posted Locating Affordable Housing: The Legal System's Misallocation of Subsidized Housing Incentives (Hastings Law Journal) on SSRN. Here's the abstract:
The primary goal of subsidized housing policy in the United States is to increase access to affordable housing for low-income households. Yet data show that states disproportionately award low-income housing tax credits to finance the development of projects in neighborhoods where there is already a relatively high number of housing units available at similar rent levels. Through a fifty-state study of state housing agency allocation rules, this Article evaluates the legal apparatus that facilitates this “misallocation problem.” I find that approximately seventy-five percent of states fail to make the provision of below-market rents a threshold requirement of receiving an award of low-income housing tax credits. As a result, locational choices often are dictated by private developers who are incentivized to develop where land is cheapest. I argue that states should revise their allocation rules to ensure that, as a default, tax credits are awarded to projects that offer at least a ten percent rent advantage as compared to the local private market. The Article considers challenges to this proposal related to lack of state housing agency autonomy, federal framework limitations, land costs, and local political opposition and, in each case, offers a variety of responses.
Sunday, December 30, 2018
Greetings from your AALS Section on Property Law!
First, if you are considering coming to the AALS Annual Meeting in January, but are still looking for inspiration, look no further! We have two fantastic panels and our business meeting breakfast lined up for January:
Thursday, January 3rd, 2019 | 3:30pm – 4:45pm
Nancy Chi Cantalupa, Barry University Dwayne O. Andreas School of Law
John Infranca, Suffolk University Law School
Christopher K. Odinet, University of Oklahoma College of Law
Moderator: Priya S. Gupta, Southwestern Law School
** The Property Section Business Meeting will be held on Friday, January 4 from 7am - 8:30am. **
Property, Capitalism, and Structural Inequality
Friday, January 4th, 2019 | 10:30am ‐ 12:15pm
Andrea Boyack, Washburn University School of Law
Carol Rose, University of Arizona James E. Rogers College of Law & Yale Law School
Etienne Toussaint, University of the District of Columbia David A. Clarke School of Law
Frank Upham, NYU School of Law
Moderator: Priya S. Gupta, Southwestern Law School
Hope to see everyone in New Orleans later this week!
Monday, December 10, 2018
Here at the Property Prof Blog, we love to share the successes of our readers. Today we share some exciting news from Texas A&M where Lisa Alexander was recently among the 21 recipients honored as a University Presidential Impact Fellow. The award is given to Texas A&M system faculty members "who embrace grand challenges, commit to core values and embody the unique “can-do” spirit that distinguishes Texas Aggies in service through education."
For more information on the award and Lisa's research, click here. Congratulations, Lisa!
Wednesday, December 5, 2018
A basic proposition in property circles is that Property is about conflicts and relationships among people regarding claims to things or land. Property is thought to be static, unchanging, and inflexible, except by certain interests. However, boundaries change. Interests emerge. Claims settle. How property is shaped by interests, claims, and actions beyond its borders has changed over the years. Alongside those changes are shifts in definitions for what it means to be “an owner” or to have a legal “entitlement.” We examine how Property has shifted and continues to shift despite enduring commitments. This discussion group brings together new and experienced voices to explore the nature of property and the lens through which we view it.
As a discussion group, we welcome works in progress at any stage. If interested in participating, please contact Caprice Roberts (firstname.lastname@example.org) or Marc Roark (email@example.com). The SEALS discussion groups are limited to twelve participants.
Monday, November 26, 2018
The Association for Law, Property & Society (ALPS) is an organization for those engaged in scholarship on all aspects of property law and society. Its annual meeting brings together scholars from different disciplines and from around the world to discuss their work and to foster dialogue among those working in property law, policy, planning, social scientific field studies, modeling, and theory. Most annual meetings include participants attending from six continents, representing numerous counties, and working in common law, civil law, Indigenous law, and mixed legal traditions. ALPS will hold its 10th Annual meeting at Syracuse University, in Syracuse New York, May 16-18. The dates include a pre-conference reception on the evening of May 16; full day meetings on May 17-18, each with continental breakfast, lunch, and light reception; and an optional field trip during the day on May 16. Field trip detail will be available prior to registration and tentatively include a visit to the Oneida Indian Nation of New York. The Oneida Indian Nation is one of the original members of the Haudenosaunee people (also known as the Six Nation of the Iroquois).
Paper submissions on any subject related to property law and the practices that shape property norms and institutions are welcome. ALPS has a strong commitment to international and interdisciplinary diversity, and paper topics reflecting that commitment are encouraged. ALPS accepts both individual paper submissions and proposals for fully formed panels (usually 3 to 4 presenters, sometimes including films or multimedia outputs). Individually organized sessions of full panels may have as few as 3 presenters; all sessions with individually submitted papers will typically have at least 4 presenters. Submissions may be of full paper drafts and completed projects, or early works-in-progress.
While papers on any topic of property law are welcome, some possible organizing themes might
include property in relation to...
- Disability law, the Built Environment, and Accessibility
Land Use Planning, Land Regulation, and Zoning
Property and Real Estate Development
Mortgages and Financing
Land Titles / Land Registries
Intellectual Property, Patents, Trademark, Copyright
Theoretical Approaches to Property: e.g. Feminist; Economic; Empirical; Behavioral;
Historical Perspectives on Property
Takings, Confiscation, and Compensation
Submissions should include an abstract of no more than 250 words. In addition, submissions must include: (1) the name of the submitting scholar, (2) the scholar’s institution, and (3) an email contact for the author or authors. If submitting a panel, please insure that an abstract for each paper accompanies the submission and that each abstract includes the name of the panel. Abstracts may be submitted beginning October 10, 2018. Submissions may be made via the concerned webpages. Authors and panel proposers will be notified of the acceptance of their individual submissions or proposed panel on a rolling basis starting after December 1, 2018. In general, each presenter will be limited to one research paper presentation per conference, although some exceptions may be made for special discussion groups or other unique thematic panels. The deadline for submitting papers and panels is February 20, 2019.
Conference registration will open December 1, 2018. The cost of registration is as follows:
Until January 31, 2019:
$75 (Full-time LL.M. or PhD students)
Beginning February 1, 2019:
$125 (Full-time LL.M. or PhD students)
Registering for the conference authorizes ALPS to include your name, institutional affiliation, and e-mail in the official program for attendees.
After reviewing and accepting submissions, ALPS will thematically group accepted papers and panels. Concurrent panels will be held on both days of the conference with each panel session lasting approximately 90 minutes and including both individual presentations and time for questions from the audience.
Information about accommodation and travel planning will be provided on the registration site. An opportunity to identify special needs will be included in the registration form and organizers will make reasonable accommodations for all attendees requesting such accommodations. The host venue is a fully accessible facility and accedes requirements of the American with Disabilities Act.
We welcome scholarly participation from anywhere in the world and seek to include a broad range of diverse ideas and experiences in our conference discussions. For scholars interested in presenting a paper at the conference who are unable to travel to the conference venue as a direct result of recent travel restrictions put in place by the United States Government, ALPS will make video-conferencing opportunities available. ALPS also plans to make available live stream coverage of plenary sessions. Video conference participation is limited to those with unique circumstances. By way of reference, the travel restrictions enacted in 2018 impact travel from Libya, Iran, Somalia, Syria, and Yemen (with some restrictions applied to North Korea and Venezuela). If you will be seeking a visa to travel to the conference and are prevented from doing so by these restrictions, please contact ALPS at ALPS2019@syr.edu and we will discuss the possibility of distance participation via live video connection. Note: ALPS is unable to provide advice or assistance with respect to visa matters.
Please direct all inquiries to: ALPS2019@syr.edu
Friday, November 16, 2018
This just in from Tim Iglesias (San Francisco):
Dear Fellow Professors:
I am writing to ask you to encourage your students to participate in the 2019 ABA Forum of Affordable Housing & Community Development Law annual Student Legal Writing Competition.
The competition is open to current law students writing on a question of significance in affordable housing, fair housing or community development law. The winning entry will be awarded a prize of $1,000, up to $1000 in expenses to attend the Forum’s annual conference in Washington, D.C., and publication of the article in the Forum’s Journal of Affordable Housing & Community Development Law. The deadline for submission of entries is March 8, 2019, and the winner will be announced by April 7, 2019. Please refer here for official rules for further details.
Professors who teach property law, land use law, local government law, real estate transactions, environmental law, civil rights law, poverty law and related courses and clinics are in an ideal position to encourage students to participate in the competition. Each year, many of the entries appear to have been prepared initially for seminars.
Please support the Forum’s Student Legal Writing Competition by encouraging your students to submit entries. If you have any questions, please contact me at firstname.lastname@example.org.
Journal of Affordable Housing & Community Development Law
Wednesday, November 14, 2018
Modern regulatory takings disputes present a key battleground for competing conceptions of property. This Article offers the following account of the three leading theories: a libertarian view sees property as creating a sphere of individual freedom and control (property-as-liberty); a pecuniary view sees property as a tool of economic investment (property-as-investment); and a progressive view sees property as serving a wide range of evolving communal values that include, but are not limited to, those advanced under both the libertarian and pecuniary conceptions (property-as-society). Against this backdrop, the Article offers two contentions. First, on normative grounds, it asserts that the conception of property-as-society presents a more useful structure for assessing whether an allocative choice is fair and just absent compensation than the conceptions of property-as-liberty and property-as-investment. Second, on doctrinal grounds, it suggests that the property-as-liberty conception has fallen from grace in takings jurisprudence since its peak in Lucas v. South Carolina Coastal Council in 1992; moreover, while the property-as-investment understanding remains of some force, the property-as-society conception has ascended to a position of jurisprudential prominence, as most recently evidenced in both the majority and the dissenting opinions in the 2017 matter of Murr v. Wisconsin.
Tuesday, November 6, 2018
Gerald 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.
Katherine 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.
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.
Monday, October 22, 2018
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.
Wednesday, October 17, 2018
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.