PropertyProf Blog

Heirs Property on the Big Screen: Gaining Ground: The Fight for Black Land (Film)

Friend of the blog, MacArthur Fellow, and reporter for the Uniform Partition of Heirs Property Act, Thomas Mitchell (Boston College), recently shared a new, award-winning film titled Gaining Ground: The Fight for Black Land. Thomas is even featured as one of the main cast members! Check out the synopsis from the film's official website:

In just a few decades after the end of enslavement, Black Americans were able to amass millions of acres of farmland. Today approximately 90% of that land is no longer in Black hands. Various factors have been employed to take Black land including violence, eminent domain and government discrimination. But it is a little-known issue, Heirs’ Property which has had a devastating effect on Black land ownership. Gaining Ground: The Fight for Black Land from Emmy Nominated Director Eternal Polk examines the causes, effects, and what is being done to fight the exploitation of this law and how landowners are reclaiming their agricultural legacy and creating paths to generational wealth.

The film was recently shown at the Smithsonian National Museum of African American History and Culture in mid-June and will also be shown at the Martha's Vineyard African American Film Festival on August 6th. 

For more info, check out coverage by BC Law here.

Mandelker on Mixed-Use Development Zoning

Daniel Mandelker (WashU) has posted Zoning for Mixed-Use Development (Real Property, Trust and Estate Law Journal) on SSRN. Here's the abstract:

Mixed-use development combines residential, commercial, and office uses into projects that emphasize diversity and community, accessibility to work and shopping, and public space. It is part of a strategy for sustainable development and good urban form, with the objectives of attaining economic vitality, social equity, and environmental quality. A wide variety of zoning alternatives are available, but there is little appreciation of their advantages and disadvantages, how they function, and how zoning should differ with different types of development. Zoning for mixed-use development also is market related, and decisions must be made on the extent to which zoning
should control market development.

Mixed-use development can be planned or unplanned, which is development resulting from the separate, unrelated actions of several different developers. It can also be vertical or horizontal. This article considers horizontal mixed-use development.

Walkability, a multilayered public realm, inclusive living choices, and authenticity are important for planned mixed-use development. Retail space is a major challenge. Decisions must be made on land use mix, design detail, how markets work, and zoning that will support active retail uses. A compact, walkable urban village is recommended, good design and configuration are essential, and vacancies must be controlled. Office space can be integrated with retail space, built separately as individual structures, or included in an office campus. Social objectives include internal trip capture, which is the measure of the number of trips that begin and end in a development, housing cost issues, and racial and income diversity issues.

The structure of zoning is an obstacle because it is designed to prevent the mixing of uses. Authorizing mixed-use development usually requires a zoning change, which may include
discretionary review and approval. A variety of zoning alternatives are available. They include planned unit development, design guidelines, and form-based zoning. Unplanned mixed-use development requires the adoption of zoning districts in which mixed use is permitted, requires attention to scale, and may require a variety of mixed-use districts. Planned mixed-use development requires more zoning detail that can define critical project elements and that may include extensive design controls. Mixed-use zoning can also be used for special development objectives that can include transit-oriented development, mall redevelopment, and live/work units.

Job Announcement: Property, T&E, & Real Estate Law @Suffolk

This just in from John Infranca (Suffolk):

Suffolk University Law School in Boston expects to fill up to three tenure-track or tenured doctrinal faculty positions, starting in 2024-2025. We seek candidates with a strong record or promise of significant scholarship and a demonstrated commitment to excellence in teaching. Our search will focus on Property; Constitutional Law; and a third position open to a range of teaching and scholarly interests.  Our needs in the area of Property include the first-year course plus advanced courses in Trusts and Estates and Real Estate Transactions.  Our needs in the area of Constitutional Law include the first-year course plus advanced courses in First Amendment and Civil Rights (including the intersection of law and race, gender, and sexual orientation). Our additional needs include Family Law, Business Law, Technology Law, Professional Responsibility and Health Law. 

Interested candidates should include in their application a curriculum vitae with a cover letter and scholarly agenda addressed to Professors John Infranca and Linda Sandstrom Simard, co-chairs of the Appointments Committee. Candidates are invited to share in their cover letter how they would advance the law school’s commitment to diversity and inclusion through their teaching, scholarship or service.  When you post materials on Jobvite, do not send duplicate materials to the Chairs of the Appointments Committee via email. 

Suffolk University does not discriminate against any person on the basis of race, color, national origin, ancestry, religious creed, sex, gender identity, sexual orientation, marital status, disability, age, genetic information, or status as a veteran n admission to, access to, treatment in, or employment in its programs, activities, or employment. As an affirmative action, equal opportunity employer, the University is dedicated to the goal of building a diverse and inclusive faculty and staff that reflect the broad range of human experience who contribute to the robust exchange of ideas on campus, and who are committed to teaching and working in a diverse environment. We strongly encourage applications from groups historically marginalized or underrepresented because of race/color, gender, religious creed, disability, national origin, veteran status or LGBTQ status. Suffolk University is especially interested in candidates who, through their training, service and experience, will contribute to the diversity and excellence of the University community.

Apply here.

Job Announcement: Property Lateral @Iowa Law

The University of Iowa College of Law
Faculty Hiring Announcement

The University of Iowa College of Law anticipates hiring one to two lateral faculty members in the areas of Property Law and Civil Procedure.

APPLICATION PROCEDURE: To apply, candidates should submit a letter of interest, CV, a list of three references, and a law school transcript through Jobs@UIOWA, https://jobs.uiowa.edu, refer to Requisition #74767.

Consistent with the mission and responsibilities of a top-tier public research university, we are interested in candidates who are recognized scholars and teachers and who will participate actively in the intellectual life of the College of Law.  In addition, we desire candidates with a demonstrated ability to maintain effective and respectful working relationships with the campus community to uphold a standard of cultural competency and respect for differences consistent with the College of Law’s commitments to diversity, equity, and inclusion. (For more on the College’s DEI commitments, see Diversity, Equity & Inclusion | College of Law - The University of Iowa (uiowa.edu).)  We also desire candidates who would bring significant new scholarly strengths to the College of Law. Candidates who can contribute to these goals are encouraged to apply and to identify their strengths in these areas.

QUALIFICATIONS:

Required Qualifications for Associate Professor:

• Consistent record of ability as a teacher of law students.
• Consistent record of scholarly productivity.
• JD, PhD or other advanced degree related to the area of the candidate’s scholarly work.
• Experience teaching in the areas of property or civil procedure, as applicable.

Required Qualifications for Professor:

• Consistent record of high-quality teaching at all appropriate instructional levels.
• Scholarly achievement of high quality, accompanied by unmistakable evidence that the candidate is a nationally and, where applicable, internationally recognized scholar in the chosen field.
• Record of significant and effective service to the law school, university, and, if appropriate, to the profession.
• JD, PhD or other advanced degree related to the area of the candidate’s scholarly work.
• Experience teaching in the areas of property or civil procedure, as applicable.

Desirable Qualifications for Associate Professor and Professor:

• Demonstrated ability to maintain effective and respectful working relationships with the campus community to uphold a standard of cultural competency and respect for differences consistent with the College of Law’s commitment to diversity, equity, and inclusion.
• Will bring significant new scholarly strengths to the College of Law.

For questions, please contact Chris Odinet, chair of the Faculty Appointments Committee at [email protected].

The University of Iowa is an equal opportunity/affirmative action employer. All qualified applicants are encouraged to apply and will receive consideration for employment free from discrimination on the basis of race, creed, color, religion, national origin, age, sex, pregnancy (including childbirth and related conditions), disability, genetic information, status as a U.S. veteran, service in the U.S. military, sexual orientation, gender identity, or associational preferences.

Persons with disabilities may contact University Human Resources/Faculty and Staff Disability Services, (319) 335-2660 or [email protected], to inquire or discuss accommodation needs. 

Prospective employees may review the University Campus Security Policy and the latest annual crime statistics by contacting the Department of Public Safety at 319/335-5022. 

 

Announcement: The Land Loss, Reparations & Housing Policy Conference @HLS & BC

Boston College Law School's new Initiative on Land, Housing & Property Rights, founded and directed by Professor Thomas W. Mitchell, a MacArthur Fellow, will have its launch on March 23rd and 24th 2023 with its Land Loss, Reparations & Housing Policy Conference. Professor Lisa T. Alexander serves as the Faculty Director for Housing and Property Rights Programs.

On March 23rd, there will be an evening roundtable discussion on Black land loss at Harvard Law School and on March 24th there will be a daylong conference followed by a reception at Boston College Law School. A link to the conference information and registration is below. Panelists include law professors and professors of urban history & policy and economics, elected officials, community development professionals, the lead lawyer in the landmark Bruce's Beach case, government housing officials and more. The launch events are co-sponsored by the Harvard Law School Food Law & Policy Clinic, the Institute on Race, Power, and Political Economy at the New School, and the Institute for the Liberal Arts at Boston College.

Everyone is welcome but registration is required. We have capacity for 300 hundred attendees but are approaching 200 registrants at this time. A link to register is below.

https://www.bc.edu/content/bc-web/schools/law/centers/land-initiative.html

St. Louis Seeks Property Visitor

Just in from SLU:

Saint Louis University School of Law seeks a visiting professor for spring 2024 to teach a course package which includes property (a 4-credit, 1L course).  We are open to considering visitors for one semester or the entire 2023-24 academic year, depending on the individual’s interests and ability to cover additional needs.  Interested individuals should send a letter of interest to Dana Malkus, Associate Dean for Academic Affairs ([email protected]).  

TAMU Journal of Property Law Symposium: Property Rights and Social Justice (by R. Walsh)

This just in from Vanessa Casado Perez (Texas A&M):

This year the Property Journal at Texas A&M is hosting a symposium around Rachael Walsh’s (Trinity College Dublin) new book Property Rights and Social Justice: Progressive Property in Action. (CUP).

When: November 11, 2022, ​9 am - ​​2 pm CST
Where: Online via Zoom

Here is the webpage for information and registration: https://law.tamu.edu/current-students/academics/law-journals/journal-of-property-law/fall-2022-symposium.

Panelists:

• Gregory Alexander, Cornell Law School
• Rashmi Dyal-Chand, Northeastern University School of Law
• Lorna Fox O'Mahony, University of Essex School of Law
• J. Peter Byrne, Georgetown School of Law
• Larissa Katz, University of Toronto School of Law
• Christopher Serkin, Vanderbilt Law School

Moringiello & Odinet on Blockchains in Real Estate

Juliet Moringiello (Widener-Commonwealth) and Chris Odinet (Iowa-me!) have just posted Blockchain Real Estate and NFTs (William & Mary Law Review) to SSRN. Here's the abstract:

Non-fungible tokens (popularly known as NFTs) and blockchains are frequently promoted as the solution to a multitude of property ownership problems. The promise of an immutable blockchain is often touted as a mechanism to resolve disputes over intangible rights, notably intellectual property rights, and even to facilitate quicker and easier real estate transactions.

In this Symposium Article, we question the use of distributed ledger technologies as a method of facilitating and verifying the transfer of physical assets. As our example of an existing transfer method, we use real property law, which is characterized by centuries-old common law rules regarding fractionalized ownership and local land records that still, in many jurisdictions, rely on paper. We explain the history of real property title protection and then identify the problems with the existing system. We then compare the extant system (and its problems) with what blockchain could offer, concluding that a blockchain system would provide few, if any, benefits.

That said, we concede that tracking and transferring ownership of certain rights—specifically, purely intangible rights—is a long-standing legal problem that begs for resolution. We focus on ownership signals, and contrast ownership of physical assets—which is broadcast in part by manual possession in addition to, in the real estate realm, recording—and ownership of intangible assets, which cannot be possessed in a way that easily gives a signal to the entire world that the possessor is the owner. Because of that difference, we conclude that the true use case for NFTs and distributed ledgers is in tracking and verifying ownership of intangibles.

LSU Looking for Property Law

LSU is looking to make multiple hires this year in a variety of areas, including, but not limited to, property law. The chair of the Faculty Appointments Committee is Missy Lonegrass, who you may contact at [email protected] with any questions you may have.

LOUISIANA STATE UNIVERSITY, PAUL M. HEBERT LAW CENTER seeks to hire tenure-track or tenured faculty in a variety of areas, including, but not limited to, faculty who have expertise in business law, civil & comparative law, civil procedure, constitutional law, contracts, criminal law and procedure, evidence, family law, professional responsibility, and property. Applicants should have a J.D. from an ABA-accredited law school (foreign equivalencies will also be considered), superior academic credentials, and a demonstrable commitment to the production of quality scholarship, as well as a commitment to outstanding teaching. 

Louisiana State University is an R1 land, sea, and space-grant university with a footprint across the state of Louisiana. It is one of only eight universities in the nation with a law school, dental school, medical school, veterinary school, and an elite MBA program. The LSU Law Center, the flagship state law school of Louisiana, is part of LSU A&M’s campus, located in the state capital, Baton Rouge. See more about LSU, including links to the area, at https://lsu.edu/visit/index.php.

LSU is committed to providing equal opportunity for all qualified persons in admission to, participation in, or employment in the programs and activities which the University operates without regard to race, creed, color, marital status, sexual orientation, gender identity, gender expression, religion, sex, national origin, age, mental or physical disability, or veteran’s status. LSU is committed to diversity and is an equal opportunity/ equal access employer. LSU believes diversity, equity, and inclusion enrich the educational experience of our students, faculty, and staff, and are necessary to prepare all people to thrive personally and professionally in a global society. To learn more about how LSU is committed to diversity and inclusivity, please see LSU’s Diversity Statement and Roadmap.

Please note that applicants must apply through the LSU Career Opportunities website. Only those persons who apply online will be considered for employment. Please apply using the following link: (https://lsu.wd1.myworkdayjobs.com/LSU/job/0400-Hebert-Law-Center/Assistant-Professor-of-Law-Associate-Professor-of-Law-Professor-of-Law_R00069560). Applications should include a letter of interest, resume including a list of three references, research agenda, and, if available, teaching evaluations.  

Questions may be directed by email to Ms. Pamela Hancock, the LSU Law Center’s Coordinator of Administration, who assists the Faculty Appointments Committee ([email protected]). 

Suffolk Looking for Property Law

Suffolk University Law School
Position Announcement: Contracts, Property, & Law and Technology

Suffolk University Law School in Boston invites applications for up to three faculty positions (two tenure-track and one tenured or tenure-track), starting in the 2023-2024 academic year. We seek candidates with a strong record or promise of significant scholarship and a demonstrated commitment to excellence in teaching. Consideration will also be given to relevant practice experience. Our search will focus on three areas: Contracts, Property, and Law and Technology. Our specific curricular needs in the Contracts area include the first-year course plus upper-level business offerings, such as Business Entities and Bankruptcy. In the general area of Property, our needs include the first-year course, plus Intellectual Property (particularly Patents, Life Sciences, and Biotech), Trusts and Estates, Wills, and Real Estate Transactions. In Law and Technology, we invite applicants teaching and writing on topics falling under the broad umbrella of technology law, such as Law and Artificial Intelligence, Blockchain Law, FinTech Law, and Cyberlaw or Internet Law. 

Interested candidates should include in their application a resume or curriculum vitae with a list of references, a scholarly agenda, and a cover letter addressed to Professors John Infranca and Linda Sandstrom Simard, co-chairs of the Appointments Committee. Candidates are encouraged to describe previous activities mentoring members of underrepresented groups or how their scholarship and planned courses address issues related to diversity, equity, and inclusion. All materials should be uploaded to the Suffolk University website at: https://jobs.jobvite.com/suffolkuniversity/job/o3Pskfwo.  

Candidates are encouraged to submit applications via Jobvite by September 21, 2022. Candidates should not send duplicate materials to the Chairs of the Appointments Committee.  

Suffolk University is an affirmative action, equal opportunity employer. Suffolk University does not discriminate against any person on the basis of race, color, national origin, ancestry, religious creed, sex, gender identity, sexual orientation, marital status, disability, age, genetic information, or status as a veteran in admission to, access to, treatment in, or employment in its programs, activities, or other settings. The University is dedicated to the goal of building a diverse and inclusive faculty who contribute to the robust exchange of ideas on campus and are committed to teaching and working in a diverse environment. We strongly encourage applications from groups historically marginalized or underrepresented because of race/color, gender, religious creed, disability, national origin, veteran status or LGBTQ status.  

Huq on Takings Law After "Cedar Point"

Aziz Huq (Chicago) has posted Property Against Legality: Takings After Cedar Point (Virginia Law Review) on SSRN. Here's the abstract:

The zealous defense of property is closely aligned with the rule of law in the American constitutional tradition. The Takings Clause of the Fifth Amendment vindicates both property rights and the rule of law by prohibiting arbitrary, lawless state action. But the standard story linking property rights, legality, and a constraint on arbitrary governance is more commonly stipulated than analyzed. This Article uses a dramatic break in Takings jurisprudence, the Supreme Court’s June 2021 decision in Cedar Point Nursery v. Hassid, to closely scrutinize the relationship between legality and property rights. To that end, it offers first a careful analysis of the sharp rupture that Cedar Point makes in Takings jurisprudence. Not only is the Court’s result difficult to explain in terms of traditional legal methods, it also destabilizes a previously predictable litigation landscape and so engenders profound uncertainty on the ground. There is, further, no obvious way for the Court to restore stability and predictability to the doctrine. So Takings law will likely prompt confusion, not certainty, for the foreseeable future. As a result, a judicial vindication of property rights comes at the paradoxical cost of dramatically increasing the space for decisions unguided by law by one group of officials in the judiciary.

This close reading of Cedar Point invites more general analysis of the complex, nuanced relationship between the rule of law and property. Drawing on the general jurisprudential theories of H.L.A. Hart and others, the Article explores ways in which the rule of law can be incompletely realized in paradoxical and harmful ways. Placing property at the center of the rule of law, it shows, can be consistent with, or even an incitement to, serious derogation of the rule of law. Doing so can undermine rule-of-law goals, such as constraining arbitrary rule and fostering social welfare. This suggests a need to decenter property rights in accounts of the rule of law, and to explore, in more nuanced fashion, how the practice of judicial review mediates systemic values of legality and predictability.

Book Symposium: Hanoch Dagan ‘A Liberal Theory of Property’ (CUP 2021)

PropertyProfs, check out this King’s Law Journal book symposium on A Liberal Theory of Property, featuring reviews by leading English property scholars, followed by a response from the author, Hanoch Dagan (Tel-Aviv):

• Yael Lifshitz & Irit Samet: Introduction 
• Ben McFarlane: Property: Duties, Diversity, and Limits
• Aruna Nair: Property and Autonomy in the Marketplace: Freedom to Sell as Freedom of Exit
• Nick Sage: Liberalism and the Common Callings
• Katy Wells: Crucial Options: Dagan on Self-determination and Structural Pluralism 
• Author's Response: Liberal Property: Clarifications and Refinements

NCBE and Real Property Topics

This just in from the National Conference of Bar Examiners (NCBE):

I write because the National Conference of Bar Examiners has just released the proposed outlines of the content to be tested on the future bar exam, expected to launch in 2026. The outlines include Real Property (see p. 30-35) and touch on which subjects will be tested and at what depth (some topics will require more in-depth knowledge and some less).

NCBE is looking for public comment on the scope and depth of subjects to be tested. The deadline for public comments is April 18.

For followers of the blog, you are welcome to weigh in by providing comments through the official commenting portal at https://nextgenbarexam.ncbex.org/csopc-register/.

Call for Papers: Journal of Affordable Housing & Community Development Law

Journal of Affordable Housing & Community Development Law

GUIDELINES FOR AUTHORS

The Journal of Affordable Housing & Community Development Law is the official publication of the Forum on Affordable Housing and Community Development Law of the American Bar Association. The Journal is the nation's only law journal dedicated to affordable housing, fair housing and community development law. The Journal educates 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.

Article/Essay Length. The Journal welcomes essays (typically no longer than 6,000 words) or articles (typically 5,000 - 10,000 words). Generally, articles are more thoroughly researched and footnoted than essays.

Style. The writing should be appropriate for a readership that consists primarily of lawyers. Authors should avoid excess verbiage, long quotations and jargon. Authors should use gender-neutral language.

Footnotes. All references must be completely and accurately cited, using the citation style of the most recent edition of The Bluebook: A Uniform System of Citation.

Author Biography. Please include a brief description of your current professional affiliation.

Manuscript Preparation. Use footnotes rather than embedded citations; number pages; italicize rather than underline; use Word, WordPerfect, or an IBM-compatible program; and submit the manuscripts as e-mail attachments.

Prior Publication. Simultaneous submission of manuscripts to other publications is discouraged and must be brought to the attention of the editor of the Journal. Unless otherwise clearly noted, all manuscripts are expected to be original.

Copyright. The American Bar Association retains the copyright to all material published in Journal of Affordable Housing & Community Development Law. Authors are asked to sign a copyright agreement that grants to the ABA the exclusive right of first publication, the nonexclusive right to reprint, and the right to use the work in other ABA media-including electronic, print, and other. Special arrangements, although discouraged, can be made for authors who must retain copyright to their articles.

Send Manuscripts to Anika Singh Lemar, Editor-in-Chief, [email protected]<mailto:[email protected]>

CFP: Public Properties in Comparative Law

Special Issue of the Review of
Comparative Public Law

Scientific committee:

Miriam Allena, Associate Professor of Administrative Law at Bocconi University, Milan Patricia Jonason, Associate Professor in Public Law, Södertörn University, Stockholm (Sweden)

Yseult Marique, Senior Lecturer at University of Essex (UK); Research Fellow at FÖV Speyer (Germany)

John McEldowney, Emeritus Professor of Law, University of Warwick

Thomas Perroud, Professor of Public Law at Panthéon-Assas University (CERSA), Humboldt Research Fellow (Experienced Researcher)

Francisco Velasco, Catedrático de Derecho Administrativo, Universidad Autónoma de Madrid Coordinator: Estelle Chambas, PhD student in public law at Panthéon-Assas University

Presentation of the review:

Droit Public Comparé - Comparative Public Law (DPC-CPL) is a biannual peer-reviewed journal entirely dedicated to Comparative Public Law. Its aim is to develop and to promote the study and comparison of national and supranational public laws. The publication is exclusively digital and open access. DPC-CPL is supported by two committees, whose members are mostly academics: an editorial board, and a scientic committee of more than 40 experts from 15 dierent countries.

The journal’s editorial line embraces Comparative Public Law, understood in the broadest sense, namely: studies of foreign Public Law (Administrative Law, Constitutional Law); the comparison of national public laws; the comparison of supranational laws; the migration of legal models; the interactions between legal systems; the theory of Comparative Law. The approaches may be varied: theoretical, historical, sociological, philosophical, linguistic, and, of course, positive law. Interdisciplinary work with other humanities and social sciences is therefore welcome.

Procedure:

• -  Abstracts of no more than two pages should be sent to us by 31 May 2022 .

• -  Abstract can be sent in English or French.

• -  Abstracts should be sent to: Estelle Chambas : [email protected]

• -  All abstracts will be anonymised and submitted to the double blind review procedure for

  selection. The answer will be given by 30 June 2022.

• Papers will be due by 15 January 2023 and submitted again to a double blind peer review procedure. Articles cannot exceed 50,000 characters.

Presentation of the topic:

This special issue welcomes papers in the eld of comparative public property law. All forms of approaches (historical, positivist, comparative, sociological) are relevant to this neglected eld of comparative public law.

The topics are intended to cover the following issues, but are in no way limited to these:

• • -  Historical perspective: how public property and the relevant law historically developed?

  • -  Colonial and indigenous issues: in former colonies, how the law on public property was adapted and which issues or debates did it raise compared to the colonial power? Are there debates or reforms in your countries to atone for the spoliation of land by European States (for instance the move in New Zealand to give legal personality to a river is a way to restore

    the link Maoris had with the land that was taken from them)?

  • -  How are property rights dened? In what sense are they public or private?

  • -  The signicance of the establishment of any special regime that may apply for example the

    use of the public trust in the common law world, “Öentliche Sache” in German Law,

    “domaine public” in French administrative law, “asignación de recursos escasos” in Spain.

  • How are public property rights governed and held accountable ?

  • Do the debates on “the commons” have consequences for the governance of public properties?

  • There are increasing calls to enhance the protability of private assets in a context of budgetary constraints and nancial austerity. These properties are indeed used in an increasingly commercial way at the expense of other uses. Are there problems in your jurisdictions? For instance, these spaces being extremely protable (the beach or certain cultural heritage) could be the source of corruption if proper procedures are not carried out when deciding upon their uses. At the same time, selection procedures may conict with other interests, e.g. identity or cultural interests at national level, or it may need to be coordinated with other schemes, e.g. preemption rights to reward those who have prepared and submitted a project aimed at enhancing the value of the assets. Also, increasing the amount of money required to occupy the public domain means the commercial aspect could raise issues of inequality of access to the amenities of public spaces.

  • Budgetary pressures can sometimes lead to the sale of assets. Are there debates in your jurisdictions on the inalienability of some properties? The privatization or publicization of public properties remains very much a debate in many legal systems.

  • Civic management of urban facilities and public spaces by associations and NGO are also an increasing trend in public property governance.

  • How is the use of the property monitored over time? In fact, a procedure to award access to some public assets may have been followed, but then over the years changes in the use (or the users) may happen. How is this monitored?

  • Cultural heritage: Public or private ownership (of castles for instance) : what is the best solution for the preservation (and better sharing) of the cultural heritage? Are there also debates about the restitution of works of art to their original community?

  • Royal families and their use of public properties : questions of legitimacy, regulation, accountability.

  • Right to roam: in the United Kingdom and in Nordic countries, laws were passed to give a right of access to private properties in the countryside. The “publicisation” of private property could be an interesting topic as well.

 

Book Review: Property in Housing by Gustav Muller & Sue-Marie Viljoen (Guest Blog)

Today we're delighted to welcome friend of the blog Mark Roark (Southern) who recently wrote a book review about Gustav Muller and Sue-Marie Viljoen's new title, Property in Housing (Juta 2021):

Can a House Divided Stand? A Thought Experiment in Housing and Property Rights

Book Review of Gustav Muller and Sue-Marie Viljoen, Property in Housing (Juta 2021) 

Reviewer: Marc L. Roark

The proverb is Gospel: “A house divided against itself cannot stand.” Jesus, Abraham Lincoln, even George Costanza has uttered these words to reflect the reality that things so tightly intertwined cannot exist at odds with one another. 

And thus, the South African Constitution (along with many other Constitutions around the world) present us with a conundrum.  If housing is a subset of property does a right to housing strengthen the law of property or challenge is normative force? Gustav Muller (University of Pretoria) and Sue-Mari Viljoen (University of the Western Cape) take on this central question in their comprehensive treatment of South African housing law, Property in Housing (JUTA Press 2021).  To wit, Muller and Viljoen’s book focuses on a central problem that housing faces around the world in western democracies: how can a right to housing co-exist where rights in property preempt their force?  In legal systems where property remains the default position for allocating rights to place (including rights to housing), Muller and Viljoen explore what room remains for housing norms absent direct legislative intervention.  The short answer by Muller and Viljoen – some.

What makes this problem so important is that South African courts have attempted to square these two rights by locating a right to housing within the right to property. What has emerged is a complicated framework where rights to housing are treated on their “property-ness” or their “non-propertyness” for determining how courts allocate claims by potential housing occupiers.  In answering that question, Muller and Viljoen have delivered what I believe is the most thorough treatment of housing through the lens of property rights available today.  Aligning housing rights objectives within the South African Constitution, they analyze whether courts pin accessibility, habitability, service provision, habitability, affordability, geographic location, or cultural adequacy as constitutional claims that can stand up to the challenges of private property law or as co-rivalrous claims that require a sorting of interests.  In particular, the theme of fragmentation emerges as a dominant concept in the constitutional application of these attributes of a housing right.  In many cases, Muller and Viljoen’s analysis of the right to housing is that its existence can often be found in the liminal spaces between where property law and housing law do not quite meet up, forcing jurists to account for human rights in housing as they sort out property claims by home occupiers, owners, and neighbors. 

Within this context, the South African background of Dutch/ British Imperialism and its lingering effects through apartheid remain present as background context for the way property law continues to reaffirm past harms.  The visible remnant of these policies remain on the landscape of South Africa as the country remains a place where informal settlements become the de facto resort when affordable housing isn’t available for people of color, and where established property holders can assert claims to space behind privatized communities.  These glimpses of property law on the ground through eviction actions and a body of South African property law lays open the landscape of what human rights to housing in conflict with property law faces up to. Muller and Viljoen provide the legal context needed to understand how property law can continue to memorialize unjust regimes many years after its formal end.

In short, I highly recommend this treatment of Housing and Property rights for anyone interested in understanding the role of property rights and housing in context.  The book’s thought experiment successfully finds some room for housing in the property context, while pointing to inadequacies of property to deliver some of the basic features we expect a constitutional right in housing to carry out. 

Job Posting: Waldo Chair in Property @W&M

This just in from our friends at William & Mary:

WALDO CHAIR IN PROPERTY RIGHTS LAW

William & Mary Law School seeks applications from distinguished scholars for the Joseph T. Waldo Chair in Property Rights Law. Candidates should have an outstanding record in scholarship, teaching, and service, with a focus in their scholarship on the role of property rights in the constitutional or common law order and should currently hold a faculty appointment with tenure.

The holder of the Waldo Chair will be responsible for directing the Law School’s Property Rights Project, which includes the annual Brigham-Kanner Property Rights Conference, the annual Property Rights Journal, and other activities that promote discourse on the relationship of property rights to fundamental liberties and societal well-being.

For questions about the Waldo Chair or to begin the application process, contact Lynda Butler, Chancellor Professor of Law, Emerita, and Chair of the Waldo Chair Subcommittee, at[email protected] and include “Waldo Chair” in the subject line. For more information about William & Mary and faculty positions, see https://jobs.wm.edu/postings/40644.

New Book Alert!

Ezra Rosser (American) just shared his new book, A Nation Within: Navajo Land and Economic Development (Cambridge University Press 2021). The book's summary is as follows:

In A Nation Within, Ezra Rosser explores the connection between land-use patterns and development in the Navajo Nation. Roughly the size of Ireland or West Virginia, the Navajo reservation has seen successive waves of natural resource-based development over the last century: grazing and over-grazing, oil and gas, uranium, and coal; yet Navajos continue to suffer from high levels of unemployment and poverty. Rosser shows the connection between the exploitation of these resources and the growth of the tribal government before turning to contemporary land use and development challenges. He argues that, in addition to the political challenges associated with any significant change, external pressures and internal corruption have made it difficult for the tribe to implement land reforms that could help provide space for economic development that would benefit the Navajo Nation and Navajo tribal members.

What Property Law Has To Say About NFTs

Juliet Moringiello (Widener-Commonwealth) and Chris Odinet (Iowa) have posted The Property Law of Tokens (Florida Law Review) on SSRN. Here's the abstract:

Non-fungible tokens—or NFTs, as they are better known—have taken the world by storm. The idea behind an NFT is that by owning a certain thing (specifically, a digital token that is tracked on a blockchain), one can hold property rights in something else (either a real or intangible asset). In the early part of 2021, NFTs for items ranging from a gif of a pop-tart cat with a rainbow tail, to Twitter CEO Jack Dorsey’s first tweet, to a New York Times column (about NFTs!) have sold for millions of dollars over the internet. Promoters assert that NFTs are the “future of digital property,” and that they herald a day when “government will lose its unique power to mint currency and protect property.” And these promoters reach beyond the typical crypto crowd. Giants of finance and industry are promising to extend the use of NFTs to securities, industrial assets, and real estate in the coming years. Moreover, this crypto token craze comes at a time when the American Law Institute and the Uniform Law Commission are in the midst of recommending revisions to U.S. commercial law to accommodate the digital age. In this Article, we take a more sober look at the tokenization phenomenon and, in doing so, describe what exactly it means when it comes to property rights. What can a purchaser of a token expect? How is a token actually connected to the underlying asset, if at all? What does the law—not the hype—have to say about it? We show that tokenization under the law actually has a long history, backed by practical economic considerations and animated by strong theoretical underpinnings. We also show that NFTs have neither of these attributes. Additionally, our Article surveys a dataset of terms of service from the most prominent NFT platforms in order to exploit both their disconnect from real legal effects and their puzzlingly contradictory promises about the relationships between buyers, seller, and the platform. Our project aims not only to inform current commercial law reform efforts, but it also offers a policy prescription for policing the NFT market.

CFP: Progressive Perspectives on Local Economic Development Moving Forward

AALS Section on State and Local Government Law
2022 AALS Annual Meeting
Call for Proposals

Program Description: The AALS Sections on State and Local Government Law and Community Economic Development are seeking speakers for our joint main program at the 2022 AALS Annual Virtual Meeting, “Progressive Perspectives on Local Economic Development Moving Forward.”  This program will explore new ideas for local governments to consider with respect to economic development in a post-pandemic era. The session will focus on law reform and scholarship that seeks to build forward-looking movements that create inclusive economic development, and considers the relevance of core legal tensions concerning regionalism and localism, the limits of government intervention in the economy, impacts of market forces on policy, and similarities and differences to past periods of local growth. The program is intended to be broad in focus. Potential topics include: 

• What economic development structures did COVID-19 expose as not meeting community needs? How did plans change at the time during the COVID-19 pandemic and how does that inform what should be done for the future (in a progressive, big thinking way)?   
• How might contested relations between states and localities limit new ideas about local economic development?  

• What is the role of regionalism as a concept and regional institutions in practice in fostering/frustrating local economic development?   
• How can economic development tools and process be used to address past economic inequality and ensure future equitable distribution of economic growth?  
• How does resiliency fit into the conversation around economic development?  

Submission Guidelines: If you are interested in participating, please send a 250-500 word abstract of your proposal. Scholarship associated with the proposal may be at any stage of the publication process from work-in-progress to completed article, but if already completed, scholarship may not be published prior to the Annual Meeting. We welcome legal scholarship across a wide variety of methodological approaches and encourage untenured scholars in particular to submit their work. Each potential speaker may submit only one abstract for consideration. Abstracts must be submitted by Friday, August 20, 2021. Abstracts should be submitted electronically in Microsoft Word format to both Kellen Zale ([email protected])and Ted De Barbeiri ([email protected]). The subject line should read “AALS 2022Joint Program Submission: Local Economic Development.” Submissions will reviewed by members of both Sections’ Executive Committees, and the selected presenters will be notified by early September. Speakers are responsible for paying their own registration fees (AALS will be offering school-wide registration again this year).