Thursday, September 12, 2019
The Kratovil Conference will consider the implications for the real estate industry and its attorneys as a result of the U.S. Supreme Court’s 2019 decision, Knick v. Township of Scott. This decision opened the door to takings suits in federal courts by eliminating the state-action ripeness requirement, which forced most landowners to seek remedies for overly broad state and local land use regulations in often-unsympathetic state courts.
Because property owners no longer need to seek a state remedy before filing a takings claims in federal court, the question is: Will there be a flood of lawsuits filed in federal court challenging federal, state, and local regulations that restrict private land development? Presenters at the Conference will include attorneys who represented Knick and the Township of Scott, Pennsylvania, as well as advocates who filed amicus briefs on behalf of individuals whose rights would be affected by the decision. A panel of practitioners will explore how the decision will affect their clients.
Click here for more information.
Thursday, July 18, 2019
ABA Journal of Affordable Housing & Community Development Law
Call for Papers
State and Local Government Responses to the Affordable Housing Crisis
Drafts due September 1, 2019
The Journal of Affordable Housing & Community Development Law (the Journal) invites articles and essays discussing how state and local governments are responding to the affordable housing crisis. Example topics could include investigation of new state statues, local ordinances, or policies regarding: rent control / rent stabilization; inclusionary zoning; source-of-income provisions; funding affordable housing; state-level affirmatively further fair housing provisions; and re-zoning single-family residential districts for higher densities. Other relevant topics are welcome. The Journal publishes both essays (typically 2,500–6,200 words) and articles (typically 7,000-10,000 words).
In addition, the Journal welcomes articles and essays on any of the Journal’s traditional 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 Journal is the nation’s only law journal dedicated to affordable 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.
Interested authors are encouraged to send an abstract describing their proposals. Submissions of final articles and essays are due by September 1, 2019. Please email abstracts and final drafts to the Journal’s Editor-in-Chief, Stephen R. Miller, at firstname.lastname@example.org. The Journal also accepts submissions on a rolling basis. Please do not hesitate to contact the Editor with any questions.
Wednesday, June 26, 2019
The 2019 Central States Law Schools Association Scholarship Conference will be held September 20-21, 2019 at The University of Toledo College of Law.
CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The annual conference is an opportunity for legal scholars to present working papers or finished articles on any law-related topic in a relaxed and supportive setting. Scholars from member and nonmember schools are invited to attend.
Registration will formally open in July. More information about the CSLSA conference can be found on our website here.
Tuesday, June 25, 2019
University of Detroit Mercy School of Law seeks a proven or aspiring scholar and teacher with an interest in teaching first-year Property Law for a tenured or tenure-track position beginning 2020-2021. Applicants must have a law degree and strong academic background and must demonstrate either a record of or potential for both teaching excellence and high scholarly achievement in any area of law. The balance of the teaching package will be determined in conversation with the successful candidate.
Applicants should send a cover letter, which should include a brief description of their ideal teaching package and a general indication of their areas of scholarly interest. Please direct the cover letter, a current CV, additional supporting materials (if any), and any questions you may have to:
Professor Julia Belian, Chair of Faculty Recruitment
University of Detroit Mercy School of Law
651 East Jefferson
Detroit, Michigan 48226
Materials will be accepted via email or regular mail. Review of applicants will begin in July 2019 and will continue until the position is filled.
About Our Program of Legal Education
Detroit Mercy Law offers a unique curriculum that complements traditional theory- and doctrine-based course work with intensive practical learning. Students must complete at least one clinic, one upper-level writing course, one global perspectives course, and one course within our Law Firm Program, an innovative simulated law-firm practicum. Detroit Mercy Law also offers a Dual J.D. program with the University of Windsor in Canada, in which students earn both an American and a Canadian law degree in three years while gaining a comprehensive understanding of two distinct legal systems. Interested Dual J.D. students are fully integrated into upper-level U.S. courses. The program’s first-year U.S. Property Law module could form a component of the teaching package if desired.
Detroit Mercy Law is located one block from the riverfront in Downtown Detroit, within walking distance of federal, state, and municipal courts, the region’s largest law firms, and major corporations such as General Motors, Quicken Loans, and Comerica Bank. The School of Law is also uniquely situated two blocks from the Detroit-Windsor Tunnel, an international border crossing linking Detroit with Windsor and Canada.
Detroit offers a dynamic variety of culinary, cultural, entertainment, and sporting attractions. See https://www.youtube.com/watch?
Michigan’s largest, most comprehensive private university, University of Detroit Mercy is an independent Catholic institution of higher education sponsored by the Religious Sisters of Mercy and Society of Jesus. The university seeks qualified candidates who will contribute to the University's urban mission, commitment to diversity, and tradition of scholarly excellence. University of Detroit Mercy is an Equal Opportunity Affirmative Action Employer with a diverse faculty and student body and welcomes persons of all backgrounds.
Friday, June 21, 2019
Thomas W. Mitchell (Texas A&M) has posted Historic Partition Law Reform: A Game Changer for Heirs' Property Owners (forthcoming in Heirs' Property and Land Fractionation: Fostering Stable Ownership to Prevent Land Loss and Abandonment. United States Department of Agriculture, E-Gen. Tech. Rep.) on SSRN. Here's the abstract:
Over the course of several decades, many disadvantaged families who owned property under the tenancy-in-common form of ownership – property these families often referred to as heirs’ property – have had their property forcibly sold as a result of court-ordered partition sales. For several decades, repeated efforts to reform state partition laws produced little to no reform despite clear evidence that these laws unjustly harmed many families. This paper addresses the remarkable success of a model state statute named the Uniform Partition of Heirs Property Act (UPHPA), which has been enacted into law in several states since 2011, including in 5 southern states. The UPHPA makes major changes to partition laws that had undergone little change since the 1800s and provides heirs’ property owners with significantly enhanced property rights. As a result, many more heirs’ property owners should be able to maintain ownership of their property or at least the wealth associated with it.
This article describes how the UPHPA has gotten significant purchase among lawmakers at the state and federal level and among other very important stakeholders. At this time, 14 states located throughout every region of the U.S. as well as the U.S. Virgin Islands have enacted the UPHPA into law, making the UPHPA the 6th most successful of the 38 uniform real property acts the Uniform Law Commission has promulgated in its 127-year history. Further, the District of Columbia and New York currently are considering UPHPA bills that have been introduced in their respective legislatures. Over the course of the next several years, it is likely that several more states or other jurisdictions will enact the UPHPA into law. Further, the UPHPA has helped raise awareness of the many problems heirs' property owners face and important stakeholders have taken some very important actions to address some of these concerns. These stakeholders include the USDA's U.S. Forest Service, the USDA's National Resources Conservation Service, and the Federal Reserve Bank of Atlanta. Further, this article describes how the federal Farm Bill that Congress passed in 2018 and that was then signed into law explicitly references the UPHPA in a few places and provides incentives for additional states to enact it into law so that farmers and ranchers in those states will be eligible for certain USDA benefits that are only made available to farmers and ranchers who are located in states that have enacted the UPHPA into law.
Wednesday, June 5, 2019
The University of Oklahoma College of Law
Professor or Associate Professor of Law
The University of Oklahoma College of Law anticipates hiring up to two faculty members AY 2019-2020 in the following areas: (1) energy and natural resources law, with a focus on water law and energy-related regulation; and (2) health law, including with a focus on healthcare privacy, insurance/finance, ethics, and regulatory compliance. Secondarily, we are also interested in candidates who have a teaching interest in family law, professional responsibility, and criminal law.
JOB QUALIFICATIONS: Consistent with the mission and responsibilities of a top-tier public research university, we are interested in candidates who are (or have the potential to become) recognized scholars and teachers and who will participate actively in the life of the College of Law. As determined by qualifications and professional accomplishments, the position in energy and natural resources law may be accompanied by the award of an endowed chair.
APPLICATION PROCEDURE: To apply, candidates should send CVs and expressions of interest to Ms. Melanie Tijerina, Faculty Appointments Committee, University of Oklahoma College of Law, 300 Timberdell Road, Norman, OK 73019 or by email to email@example.com. The College of Law will treat all applications as strictly confidential, subject only to requirements of state and federal law.
ABOUT OU: The state’s flagship law school, OU Law has distinguished itself as among the most innovative and prominent law schools in the region. In the last decade, OU Law has built world-class facilities incorporating advanced technology and inventive programs of study that have attracted exceptional students and faculty. In addition, OU Law has significantly expanded faculty resources, including a dramatic increase in endowed positions. These efforts contribute to OU Law’s strong and growing national reputation.
The University of Oklahoma (OU) is a Carnegie-R1 comprehensive public research university known for excellence in research, teaching, and community engagement, serving the educational, cultural, economic and health-care needs of the state, region, and nation from three campuses: Norman, the Health Sciences Center in Oklahoma City, and the Schusterman Center in Tulsa. OU enrolls over 30,000 students and employs more than 2700 full-time faculty members in 21 colleges. The 277-acre Research Campus in Norman was named the No.1 research campus in the nation by the Association of Research Parks in 2013. Norman is a culturally rich and vibrant town located just outside Oklahoma City. With outstanding schools, amenities, and a low cost of living, Norman is a perennial contender on “best place to live” rankings. Visit www.ou.edu/provost/flipbook and www.ou.edu/publicaffairs/oufacts.html for more information.
The University of Oklahoma, in compliance with all applicable federal and state laws and regulations, does not discriminate on the basis of race, color, national origin, sex, sexual orientation, genetic information, gender identity, gender expression, age, religion, disability, political beliefs, or status as a veteran in any of its policies, practices, or procedures. This includes, but is not limited to: admissions, employment, financial aid, housing, services in educational programs or activities, or health care services that the University operates or provides.
FURTHER INFORMATION: For additional information, please contact the Faculty Appointments Committee at firstname.lastname@example.org.
Friday, May 31, 2019
In “The Liberal Commons” Michael Heller and I celebrated commons property types that mainstream property theory obscures notwithstanding their prevalence in contemporary law. In this Essay, prepared for the Cornell Law School Symposium celebrating Greg Alexander’s retirement, I maintain that the connection between liberalism and commons property types is more precise and, in a sense, more complicated.
On the one hand, I claim that a liberal property law, which is founded on and thus must be committed to individual self-determination, must proactively facilitate commons property types, in line with what I call property’s structural pluralism. On the other hand, I contend that a liberal law should not lend its support to commons property types not only if they undermine the liberal commitment to exit (as discussed in The Liberal Commons), but also if they fail to comply with the prescriptions of property’s relational justice. Relational justice, I argue, implies that commoners’ right to exclude potential entrants must not be unlimited; it furthermore requires that for law to support a commons property, its internal governance regime must not undermine the equal concern and respect of its members.
Situating commons property types at the core of liberal property law offers a better understanding of the liberal ideal of property as well as of both the promises and the dangers of the commons. Refining the proper role of commons property types and the prerequisites of their legitimacy also sets up a reformist agenda, which can push liberal property law to better comply with its autonomy-based underpinnings. It may further show why – although much of the critique of the realities of property in actual liberal systems is justified – the liberal idea of property must not be too quickly discarded. Properly conceived, I conclude, liberal property both augments people’s opportunities for (voluntary) collective self-determination and restrict their opportunities for interpersonal domination.
Friday, May 3, 2019
Legal scholars who study cities and urban governance discuss participation in a number of ways, and at various moments in the legal process. Frequently, however, less attention is placed on anticipatory participation — forward-looking, flexible, and inclusive public engagement — and its role in promoting effective and legitimate policy. The emerging concept of anticipatory governance synthesizes different notions of improving participation and places focus on how residents can best participate in society’s most difficult decisions. At the local level, such matters are often those that address land use and economic development.
The recent climate change preparedness strategic plan in New York City, known as PlaNYC, is an example of a local anticipatory governance process addressing population growth as well as global climate change. Building on the PlaNYC case, this Article illustrates ways that cities can, and in fact already are, address participation early on in the planning process to improve the quality of resident engagement. This Article offers a frame-work for how local government can use anticipatory governance concepts to promote resident participation in influencing how projects are developed in the built environment. Residents, the primary users of public space, have unique expertise and can engage with professionals to plan accessible and equitable cities. Anticipatory participation may even assist in moving beyond difficult land use decisions where compromises appear most remote. An urban anticipatory governance approach addresses society’s most complex issues, in flexible ways, allowing residents and experts to work together, with enough time for that collaboration to have a meaningful impact on decisions.
Friday, April 5, 2019
Call for Authors - Feminist Judgments: Rewritten Property Opinions
Deadline for Applying: Friday, April 26, 2019
The U.S. Feminist Judgments Project seeks contributors of rewritten judicial opinions and commentary on the rewritten opinions for an edited collection tentatively titled Feminist Judgments: Rewritten Property Opinions. This edited volume is part of a collaborative project among law professors and others to rewrite, from a feminist perspective, key judicial decisions in the United States. The initial volume, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, edited by Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, was published by Cambridge University Press in 2016. Cambridge University Press has approved a series of Feminist Judgments books. In 2017, Cambridge University Press published the tax volume titled Feminist Judgments: Rewritten Tax Opinions. Other volumes in the pipeline include rewritten trusts and estates opinions and rewritten family law opinions.
Property law volume editors Eloisa C. Rodriguez-Dod and Elena Maria Marty-Nelson seek prospective authors and commentators for fifteen rewritten property opinions covering a range of topics. With the help of an advisory board of distinguished property law scholars, the editors have selected a list of cases that have not appeared in other Feminist Judgment volumes; potential authors are welcome to suggest opinions which do not appear on the list.
Proposals must be either to (1) rewrite a case opinion (subject to a 10,000-word limit) or (2) comment on a rewritten opinion (subject to a 4,000-word limit). Rewritten opinions may be re-imagined majority opinions, concurrences, or dissents. Authors of rewritten opinions will be bound by the law and precedent in effect at the time of the original decision. Commentators should explain the original court decision, how the rewritten feminist opinion differs from the original decision, and the impact the rewritten feminist opinion might have made. The volume editors conceive of feminism as a broad movement and welcome proposals that bring into focus intersectional concerns beyond gender, such as race, class, disability, gender identity, age, sexual orientation, national origin, and immigration status.
To apply, please email (1) a paragraph or two describing your area of expertise and your interest in this project; (2) your top two or three preferences from the list of cases below; and (3) whether you prefer to serve as an author of a rewritten opinion or an author of a commentary to a rewritten opinion. Please submit this information via email to the editors, Eloisa C. Rodriguez-Dod and Elena Maria Marty-Nelson, at email@example.com firstname.lastname@example.org Friday, April 26, 2019. The Feminist Judgments Project and the Property book editors are committed to including authors from diverse backgrounds. If you feel an aspect of your personal identity is important to your participation, please feel free to include that in your expression of interest. The editors will notify accepted authors and commentators by Monday, May 13, 2019. First drafts of rewritten opinions will be due on Monday, September 16, 2019. First drafts of commentaries will be due on Monday, October 28, 2019.
Tentative List of Cases:
- Moore v. City of E. Cleveland, 431 U.S. 494 (1977) (exclusionary zoning)
- Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576 (2013) (patents)
- Sawada v. Endo, 561 P.2d 1291 (Haw. 1977) (tenancy by the entireties)
- Gruen v. Gruen, 496 N.E.2d 869 (N.Y. 1986) (inter vivos gifts)
- Coggan v. Coggan, 239 So. 2d 17 (Fla. 1970) (ouster of co-tenant)
- Phillips Neighborhood Hous. Tr. v. Brown, 564 N.W.2d 573 (Minn. Ct. App. 1997) (lease termination for illegal activity)
- Taylor v. Canterbury, 92 P.3d 961 (Colo. 2004) (secret severance of joint tenancy)
- White v. Samsung Elecs. Am., Inc., 971 F.2d 1395 (9th Cir. 1992) (publicity rights)
- Johnson v. M’Intosh, 21 U.S. 543 (1823) (Native American property rights)
- Dolan v. City of Tigard, 512 U.S. 374 (1994) (exactions/eminent domain)
- Bartley v. Sweetser, 890 S.W.2d 250 (Ark. 1994) (premises liability)
- Tate v. Water Works & Sewer Bd. of City of Oxford, 217 So. 3d 906 (Ala. Civ. App. 2016) (adverse possession and condemnation)
- Blake v. Stradford, 725 N.Y.S.2d 189 (Dist. Ct. 2001) (ejectment of domestic partner)
- Moore v. Regents of Univ. of California, 793 P.2d 479 (Cal. 1990) (property interest in one’s genetic material)
- Pocono Springs Civic Ass’n, Inc. v. MacKenzie, 667 A.2d 233 (Pa. Super. Ct.1995) (abandonment of real property)
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!