PropertyProf Blog

Property at Law and Society in Berlin

I've gone through the preliminary program for the upcoming Law and Society Conference in Berlin and picked out as many property-related presentations as I could find.  The list is below the fold.  There's a lot going on, and I'm sure I've missed some things.  To make the list manageable, I've omitted panels that are focused only on intellectual property.  Please let me know by leaving a comment or sending me an e-mail if I've missed anything or made any errors in the listing.

Unfortunately, it looks as though several of the property panels conflict with each other, especially on Thursday morning and Saturday afternoon.  I'll be presenting a paper called Group Size and Heterogeneity in the Design of Legal Structures (abstract below) in the Property Rights: Structures of Property panel on Friday morning.

Ben Barros

Continue reading

Cemeteries and Development

Thanks to Carl Christensen for this story from the New York Times , "New Homes Confront Old Burial Grounds."  The article begins:

DAC ENTERPRISES, a small, mostly residential developer in Georgia, bought about 118 acres in Hall County, just south of the city of Lula, with the idea of selling lots to builders to put up single-family houses. The transaction, which was completed in 2004, seemed routine for the fast-growing exurb, 50 miles northeast of Atlanta.

But it turned out that the developer was in for a surprise — one that he says cost him about $40,000. In one patch of the land, hiding beneath bushes and trees, was a cemetery — 22 graves dating to the mid-19th century, including one for Neverson Cook, a veteran of the War of 1812. Only two were marked with inscribed stones.

“We did not know it was on the property when we bought it,” said Ray W. Gunnin Sr., the president of DAC.

His company hired an archaeologist to determine the number of graves there and the precise boundaries of the cemetery. Mr. Gunnin said the cemetery was cleaned up and a chain-link fence erected — not a legal requirement, but out of respect for the dead. “We didn’t want people riding bicycles and things like that across the cemetery,” he said.

He estimated his company had spent more than $5,000 to define and fence off the graves, which are now neighbors of around 70 new homes — and said he lost $35,000 because he could not sell the cemetery space, which is on a “nice little knoll that would have been a choice building lot.”

Of course, the neighboring lots may sell for more (because they're further from the neighbors).

Yet another example of the importance of cemetery law.

Alfred L. Brophy

Comments are held for approval, so they will not appear immediately.

NY Times on Virtual Gold Farming

Those of you interested in virtual property and the economies of MMOGs should check out an article from yesterday's NY Times Magazine on Chinese gold farms -- companies that accumulate virtual property and sell it for real-world money.  The article also mentions a class-action lawsuit filed by players of one MMOG against retailers of virtual property.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Eggert on Mortgage Servicers

Kurt Eggert (Chapman) has posted Limiting Abuse and Opportunism By Mortgage Servicers on SSRN.  Here's the abstract:

This article discusses the opportunistic and abusive behavior of some servicers of residential mortgages toward the borrowers whose loans they service. Such abuse includes claiming that borrowers are in default and attempting to foreclose even when payments are current, force-placing insurance even when borrowers already have a policy, and mishandling escrow funds.

The causes of such practices and the market forces that can rein them in are discussed. A case study of one mortgage servicer describes its unfair treatment of borrowers and the reforms imposed by federal regulators and other market participants. Both regulatory agencies and rating agencies appear to have increased their scrutiny of servicers' behavior, and states have passed new legislation to limit abuse. This article concludes with a discussion of proposals for further reform should these steps prove inadequate.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Lazarus on Environmental Law After Katrina

Richard Lazarus (Georgetown) has posted Environmental Law After Katrina: Reforming Environmental Law by Reforming Environmental Lawmaking on SSRN.  Here's the abstract:

Hurricane Katrina's overriding lesson for environmental law is no less than our environmental lawmaking institutions require fundamental reformation. Otherwise, the nation's tragic failure not only to enact laws that anticipate the obvious risks presented to the Gulf Region by hurricanes, but perversely to increase those risks by destroying the ecosystem's natural protections, will inevitably be repeated with even more devastating results.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Possibility of Light Blogging For Rest of Week

I'll be on the road for the rest of the week, and though I'll have my laptop with me, I might not have much of a chance to post for the next few days.  Like Al, I've been under water for much of the last semester.  Hope to have time to do more original substantive posting than I've been doing lately when I get back.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Advice to Law Journals: In Eighteen Parts (more or less)

I've been very quiet of late.  Mostly this is due to the crush of work--committee work (heard something like thirty job talks last year, for instance, and that's not the half of committee work); taught a new trusts class in the spring, which had a serious practical component; trying to finish a supplemental casebook that I'm co-authoring with Alberto Lopez and Kali Murray (more on this as we finish that up) on ways to integrate race into the property curriculum--it's tentatively titled "Integrating Spaces," and desperately trying to work on pieces on implied beneficiaries in trust law, monument law, and moral philosophy in between everything else.  Also (as if anyone cares), moving--which spins off an amusing story about some covenants on the new place.  Suffice it to say for the time being, there won't be any signs in my yard or pine trees, for that matter, though there will always be at least two trees in the front yard.  Bet there's an interesting story behind the no pine trees covenant.  Also, there's a creative attempt to make the covenants, essentially, last forever.  That's worth a few chuckles.  More on all this later.

In the interim, lots of other stuff to talk about, including (the almost propertyprof topic of) Gordon Wood's review of Robin Einhorn's American Slavery, American Taxation in the most recent issue of New York Review of Books (it raises some great issues of how legal historians balance concerns over the present, which cause us to ask historical questions, with the “critical control” over ourselves as historians that is necessary to avoid having our histories devolve into argument by (a)historical anecdote or, worse, brainwashing by historical example.)

I'm still thinking about law reviews.  And so I'm going to "workshop" some thoughts: ways to improve a  law journal.  It takes its inspiration from a charming essay some years ago (1999) in the Journal of Legal Education by James Lindgren, "Fifty Ways to Promote Scholarship" (available at Hein-on-line here).  So far, I have only eighteen ways to improve the law journal. But I imagine that as I work through these over the coming weeks, some more will bubble up (I hope from readers, though maybe I'll have a few more thoughts as well).

Maybe I'll put it together with another very brief essay I started writing some years ago, "Law review editorship as training for hierarchy."  Derivative of Duncan Kennedy, of course; though I go in a somewhat different direction from him.  I suppose the thesis is pretty obvious from the title.

So, back to the eighteen pieces.  My plan (we'll see how long this lasts) is to post a piece or a few pieces of advice on how to improve a law journal at a time.  My sense is that a lot of journals are already doing some of these things; maybe there won't be anything new, though I have at least one suggestion that I think is highly unusual.  Only one journal that I know of does it; to preserve the suspense, I'll put that towards the end of the series.

So let me start off with my first piece of advice:

1.  Involve faculty in the selection of articles.

One of the great complaints of law reviews is that selections of articles are made by students.  Having the faculty involved in the selection is one pretty simple response.  Perhaps the best balance between student control and faculty consultation involves faculty vetting articles once the student articles editors have done an initial cull.  This was the process that the Columbia Law Review used way back before the flood when I was an editor, though it was driven by the articles editors' seeking about faculty.  Though perhaps here I'm thinking more of a top-down approach: the faculty imposing the requirement on the editors that they get approval before making an offer.

This, of course, raises the question: are the faculty any better at picking articles than the students?  You may just be substituting one groups' prejudices for those of another.  At a minimum, faculty will have read more scholarship than the students and so ought to have more experience with what types of questions and methods will generate a successful piece.  One hopes, moreover, that the law review will match up the subject of the article under review with faculty who have some expertise in the subject.  I worry this may, sometimes, lead to uneven standards, however.  I think I'm probably more positive in my recommendations about anything put in front of me than some of my colleagues (and probably less positive than others).  So students reading a review of an article I write may be more inclined to accept it than if another of my colleagues wrote the review.  Moreover, I think there are problems with asking faculty about articles written by their friends (or, I suppose--though I hope and suspect this is rarer, their enemies).  And the former problem is exacerbated if the students look to faculty to recommend pieces cold--that is, if the students allow faculty to walk the articles of colleagues at other schools into the law review offices.

Next installment after I return from conferencing and get some more work done.

Alfred L. Brophy
Comments are held for approval, so they will not appear immediately.

Rent Control and Housing Stability

Over at the Land Use Profs Blog, Paul Boudreaux has an interesting post on rent control and housing stability.  As I argued in this article, I agree that policies favoring housing stability are supported by people's personal connections to their homes, but that these legitimate interests are far outweighed by the negatives created by rent control laws.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Not so much

Being a fan of various property issues relating to human body parts, I was very excited about the potential for a CNN story with the title From Tissue Theft to Jail?  Turns out, though, that she just stole some toilet paper from a court house.  Such a letdown.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Cash-Back Mortgages

The NY Times has an interesting Freakonomics piece on cash-back mortgages.  An excerpt:

[A]s he interviewed mortgage brokers, real estate agents and bank loan officers, he heard regular mention of a mysterious kind of deal in which the seller gave the buyer a cash rebate without noting this transaction in the mortgage paperwork. (It is illegal for buyers and sellers to transfer cash or assets without properly notifying the lender.) Of course, none of the people that he interviewed copped to this practice. But sometimes the signs of a cash-back transaction were, quite literally, out in the open for all to see, on banners hanging from for-sale properties or in printed real estate ads.

How does this kind of deal work?

Pretend that you want to buy a house that costs $200,000 but don’t have $20,000 to make the 10 percent down payment that would get you a decent mortgage. The seller’s real estate agent offers a solution: let’s make the official purchase price $220,000 instead of $200,000, he says — but in return, the seller will give you $20,000 in cash. This rebate will be a separate transaction, the agent explains, which doesn’t need to be written into the mortgage paperwork. (A seller can legally offer a cash-back incentive, but it would have to be reported to the bank — which would negate the advantage of having the bank think that the buyer already has the cash.)

Voilà! Suddenly you have the $20,000 in cash necessary to get a good mortgage, and the seller still nets his original price of $200,000. The only difference is that the bank records the sale of the house at an inflated $220,000. And, instead of borrowing 90 percent of the value of the house, you have in fact borrowed 100 percent. “In short,” Ben-David writes, “a buyer can purchase the property with no down payment.” . . .

Having isolated the suspicious transactions in the data, Ben-David could now examine the noteworthy traits they shared. He found that a small group of real estate agents were repeatedly involved, in particular when the seller was himself an agent or when there was no second agent in the deal. Ben-David also found that the suspect transactions were more likely to occur when the lending bank, rather than keeping the mortgage, bundled it up with thousands of others and sold them off as mortgage-backed securities. This suggests that the issuing banks treat suspect mortgages with roughly the same care as you might treat a rental car, knowing that you aren’t responsible for its long-term outcome once it is out of your possession.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Monuments and Slavery in Washington's Philadelphia

Thanks to Ann Bartow for pointing out this story on a passage-way that archeologists have found during excavation of George Washington's house in Philadelphia.  They speculate that slaves used it to enter the house.  As the AP story reports:

The underground passageway is just steps from the Liberty Bell and Independence Hall. It was designed so Washington's guests would not see slaves as they slipped in and out of the main house.

There's a controversy (or at least discussion) about what to do with this new find--fill it in or preserve it:

The findings have created a quandary for National Park Service and city officials planning an exhibit at the house. They are now trying to decide whether to incorporate the remains into the exhibit or go forward with plans to fill in the ruins and build an abstract display about life in the house.

This is the second time this year we've spoken about property-related issues and slavery in Philadelphia.

Much more on the house is available here.

Al Brophy

Comments are held for approval, so they will not appear immediately.

Blumm and Bosse on Norton v. SUWA

Michael C. Blumm and Sherry Bosse (Lewis & Clark) have posted Norton v. SUWA and the Unraveling of Federal Public Land Planning on SSRN.  Here's the abstract:

In 2004, in Norton v. Southern Utah Wilderness Association (SUWA), a unanimous Supreme Court ruled that environmentalists could not obtain injunctive relief against the failure of the Bureau of Land Management (BLM) to regulate growing off-road vehicle (ORV) use in federal wilderness study areas in Utah, despite a statutory directive that BLM prevent “impairment” of such areas, and despite BLM's promises in its land plan that it would monitor ORV use and close the areas if warranted. Justice Scalia's opinion for the Court acknowledged that the Administrative Procedure Act authorizes federal courts to compel action in the face of agency inaction, but decided that BLM's failure to act to prevent impairment was not actionable because Congress had not directed BLM to take a “discrete” action, instead leaving the agency with considerable discretion as to how to prevent impairment. The decision in SUWA has produced widespread ramifications: federal land managers have employed it to successfully insulate from judicial review a wide variety of federal actions as well as inactions. Moreover, the Bush Administration seized upon the decision as a justification for redefining national forest land plans as aspirational in nature, without any making any binding commitments as to particular authorized activities or land suitability. The Administration also moved to eliminate environmental review of national forest plans, claiming that under its redefinition plans produce no environmental effects, an effort that was subsequently stalled by the courts.

This article discusses these developments, maintaining that they are inconsistent with the congressional commitment to federal land planning made in 1976 in both the Federal Land Management and Policy Act and the National Forest Management Act. Thirty years ago, Congress created modern federal land planning as the cornerstone of greater public involvement in public land decisionmaking. SUWA and its aftermath have destroyed that vision, making public land plans virtually irrelevant and a large waste of taxpayer dollars. If effective public participation in federal land planning requires that the public be able to enforce the promises made in land plans, Congress must amend the authorizing statutes to restore federal land plans as legally significant commitments of public resources.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Shiller on Real Estate Turning Points

Robert J. Shiller (Yale University - Cowles Foundation) has posted Historic Turning Points in Real Estate on SSRN.  Here's the abstract:

This paper looks for markers of ends of real estate booms or busts. The changes in market psychology and related indicators that occurred at real estate market turning points in the United States since the 1980s are compared with changes at turning points in the more distant past. In all these episodes changes in an atmosphere of optimism about the future course of home prices, changes in public interpretation of the boom, as well as evidence of supply response to the high prices of a boom, are noted.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Dagan on Re-Imagining Takings Law

Hanoch Dagan (Tel Aviv University) has posted Re-Imagining Takings Law on SSRN.  Here's the abstract:

Takings law, composed of the law of eminent domain and the regulatory takings doctrine, is correctly understood as one of property's most defining features. As such, it attracts the attention not only of lawyers and judges but also of property theorists and political philosophers. This thick literature tends to fall into rather predictable and, I argue, quite disappointing camps. Libertarian authors maintain that compensation should be required each time the taking's impact on the owner is disproportionate to the burden, if any, carried by other beneficiaries of the intended public use of the public action at hand. Their liberal opponents, who hold that property should serve not only liberty but also such values as social responsibility and distributive justice, seek to restrict the range of takings law as much as possible. They imply that the connection between takings and these competing values is simple: social responsibility and distributive justice are better served when the doctrines of eminent domain and regulatory takings become increasingly limited. This debate is now deadlocked.

This essay seeks to re-imagine a truly liberal takings doctrine, which deviates dramatically from the positions of both camps. Unlike the former, it disputes the desirability and even the intelligibility of both the notion that ownership should only promote individual liberty and the strict takings doctrine said to follow this libertarian utopia. Unlike the latter, it insists that takings law should not fall back to a doctrine of no, or almost no, compensation that, I will argue, is counter-productive to the very commitment to social responsibility and distributive justice. Rather, in order to successfully integrate social responsibility and distributive justice into takings doctrine, and also other important property values such as autonomy, personhood and utility, we need to opt for a regime of partial and differential compensation, drawing careful (and rule-based) distinctions between types of injured properties and types of benefited groups.

I read this very interesting essay last week.  Highly recommended!

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Banzhaf on Undeveloped Lands on Urban Outskirts

H. Spencer Banzhaf (Georgia State University - Department of Economics) has posted Public Benefits of Undeveloped Lands on Urban Outskirts: Non-Market Valuation Studies and Their Role in Land Use Plans on SSRN.  Here's the abstract:

Over the past three decades, the economics profession has developed methods for estimating the public benefits of green spaces, providing an opportunity to incorporate such information into land-use planning. While federal regulations routinely require such estimates for major regulations, the extent to which they are used in local land use plans is not clear. This paper reviews the literature on public values for lands on urban outskirts, not just to survey their methods or empirical findings, but to evaluate the role they have played - or have the potential to play in actual land use plans.

Based on interviews with authors and representatives of funding agencies and local land trusts, it appears that academic work has had a mixed reception in the policy world. Reasons for this include a lack of interest in making academic work accessible to policy makers, emphasizing revealed preference methods which are inconsistent with policy priorities related to nonuse values, and emphasis on benefit-cost analyses. Nevertheless, there are examples of success stories that illustrate how such information can play a vital role in the design of conservation policies.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Ayotte and Bolton on Optimal Property Rights in Financial Contracting

Kenneth Ayotte (Columbia Business School) and Patrick Bolton (Princeton University) have posted Optimal Property Rights in Financial Contracting on SSRN.  Here's the abstract:

In this paper we propose a theory of optimal property rights in a financial contracting setting. Following recent contributions in the property law literature, we emphasize the distinction between contractual rights, that are only enforceable against the parties themselves, and property rights, that are also enforeceable against third parties outside the contract. Our analysis starts with the following question: which contractual agreements should the law allow parties to enforce as property rights? Our proposed answer to this question is shaped by the overall objective of minimizing due diligence (reading) costs and investment distortions that follow from the inability of third-party lenders to costlessly observe pre-existing rights in a borrower's property. Borrowers cannot reduce these costs without the law's help, due to an inability to commit to protecting third-parties from redistribution. We find that the law should take a more restrictive approach to enforcing rights against third-parties when these rights are i) more likely to redistribute value from third-parties ii) less likely to increase efficiency, and iii) more costly for third-parties to discover. We find that these qualitative principles are often reflected in observed legal rules, including the enforceability of negative covenants; fraudulent conveyance; corporate veil-piercing; and limits on assignability.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]