Monday, December 29, 2008

International Tribunal Rules For Zimbabwe Farmers on Land Expropriation

The New York Times has an interesting story on an international tribunal's condemnation of Zimbabwe's confiscation of white farmers' property:

Mr. Etheredge this year became one of dozens of white farmers to challenge the government’s right to confiscate their land, and they sought relief in an unusual place: a tribunal of African judges established by the 15 nations of the Southern African Development Community regional trade bloc. . . .

On Nov. 28, the farmers gathered in Windhoek, Namibia, to hear the final ruling of five judges of the S.A.D.C. tribunal. As Justice Luis Antonio Mondlane of Mozambique read the full 60-page decision aloud, it dawned on the farmers that they had won.

The tribunal found that the government had breached its obligations under the trade bloc’s treaty, which committed it to respecting human rights, democracy and the rule of law, by denying the farmers compensation for their farms and court review of the government’s confiscation of them.

More broadly, it rejected the government’s claim that the land redistribution program was meant to right the wrongs of a colonial era when a white minority ruled what was then Rhodesia. Instead, the court found that the government had itself racially discriminated against the white farmers.

In a stinging rebuke, the tribunal, citing an earlier legal case, said it would have reached a different conclusion had the government not awarded “the spoils of expropriation primarily to ruling party adherents.”

The usually stoic farmers wept. “We burst into tears, the whole lot of us,” Mr. Freeth said.

The reaction of the government was defiant. Didymus Mutasa, the minister who oversees the distribution of seized land, told the state media that the judges were “daydreaming” if they thought Zimbabwe would heed the ruling.

I poked around online trying to find a copy of the Court's opinion.  If anyone knows where to find it, I'd appreciate a pointer.

UPDATE:  The opinion is available here.

Ben Barros

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December 29, 2008 in Takings | Permalink | Comments (1) | TrackBack (0)

Papers for Junior Scholars Works in Progress Panel

As we've previously noted, the Property Section will hold a Junior Scholars Works in Progress Panel at AALS.  The panel will be held on Friday, January 9, from 8:30 a.m. to 10:15 a.m.  If you are attending the panel, you can download the two papers here:

Daniel Kelly, Strategic Spillovers: Using Externalities to Extract Payments [Download kelly__strategic_spillovers1.pdf]

Leah Theriault, An Efficient Breach Theory of the Numerus Clausus [Download theriault_aals_wip_dec71.pdf]

Ben Barros

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December 29, 2008 in Conferences, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, December 26, 2008

Snowzilla: Public Nuisance

Thanks to a tip from a former student (Addie McKinney) I see that Snowzilla (a two story tall snowman) has been abated in Anchorage.  From the introduction to the Anchorage Daily News story:

Anchorage's famous giant snow man, Snowzilla, finally met its match.

   It wasn't the weather. It wasn't angry neighbors bearing shovels and pick axes.

It turns out Snowzilla's biggest foe -- the one who felled the controversial but much-loved giant -- was a notice-bearing city code enforcement officer.

   That's right, Snowzilla was abated.

It was just a few years ago that 16-foot-tall Snowzilla arose in a residential yard in Airport Heights, launching an annual procession of local gawkers and an international media blitz.

[And then] ... "on Dec. 11, the city notified the Airport Heights community council about its decision to abate Snowzilla, telling council members that the two-story snowman caused increased traffic to the point of endangerment and that the structure itself was unsafe."

So much for the holiday spirit, eh?  Anyway, this is just in time for your coverage of public nuisance in your spring property course.  Sounds like it's another great example for Jim Smith's law of yards.

Anyway, ho, ho, ho.....

Alfred Brophy

December 26, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, December 22, 2008

Kelly on Title Clearing in the Internet Age

James J. Kelly Jr. (Univ. of Baltimore) has posted Bringing Clarity to Title Clearing: Tax Foreclosure and Due Process in the Internet Age on SSRN.  Here's the abstract:

The foreclosure of property tax liens performs an essential economic function by reconnecting underutilized properties to the real estate market. To clear title in an efficient and just manner, local jurisdictions foreclosing on tax liens require clear, balanced procedures for the provision of notice to affected parties. In its 2006 decision in Jones v. Flowers, the U.S. Supreme Court found that the foreclosing jurisdiction's lack of follow-up on returned notice mailings denied the addressee due process because they were not steps that would be chosen by "one desirous of actually informing" the property owner. While rightly decided, Jones, in subjecting to direct constitutional review the myriad notification decisions a foreclosure petitioner must make in conducting diligent attempt at notification, threatens the validity of tax foreclosure proceedings and the titles that result from them in a fundamentally different way than earlier precedents that made notification more rigorous without loss of clarity. After demonstrating the Court's historical use of rules and standards in this area of notice and opportunity to be heard, this Article will show how the development of constitutional safe harbors can be used to resolve the shortcomings of the rule/standard dichotomy. Deploying a theoretical framework for the judicial fostering of fair and efficient constitutional safe harbors, this Article advocates legislative enactment of and judicial support for detailed notification protocols tailored to the particular needs and behaviors of the different types of land interest holders entitled to foreclosure notice.

In order to provide reliable guidance to foreclosing parties, these notice procedures should be designed to meet a higher standard developed in the Court's due process jurisprudence. If a court finds a set of legislated protocols "reasonably certain to inform" the interested parties for whom they were designed, then that court should judge the constitutionality of notification choices that come before it against that certified rule. Such an approach would be preferable to reviewing those decisions directly using vague, albeit generally less restrictive, constitutional standards such as "reasonably calculated . . . to apprise" or "chosen by one desirous of actually informing." Notification protocols that meet this due process "super standard" of reasonable certainty can become safe harbors for those pursuing tax foreclosure remedies while still assuring full compliance with the guarantees of notice and opportunity to be heard embodied in constitutional jurisprudence.

Ben Barros

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December 22, 2008 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, December 21, 2008

Spiller v, Mackereth

Jemison_building_tuscaloosaDoing a little cross-posting from the faculty lounge this morning.

Users of the Dukeminier and Krier (and now Schill and Alexander) property casebook may recall the 1976 Alabama case of Spiller v. Mackereth, which dealt with relations between two co-tenants of a commerical real estate building in Tuscaloosa.   Now the Tuscaloosa News brings a story about a building once owned by Spiller that's probably going to be demolished.  As I recall, the Spiller-Mackereth building was next door to this one.   I don't have a picture of the other one, so this one will have to do. 

I might add that the story's a great one because it details the deliberations of the current owner (a church) about how they could make productive use of the property.  A long-term lease won't do for them, because it would tie up the property too long; a shorter lease won't give the prospsective tenants enough time to realize their investment in the property.  The church is concerned about treating the future generations fairly--a topic that I understand has been under discusiion a lot of late at GW and elsewhere.

Alfred Brophy

December 21, 2008 | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 17, 2008

Changing Conceptions of Property Seminar

Via the Legal History Blog, I learned that the Folger Library is holding a seminar titled "Changing Conceptions of Property" that will meet on Thursday and Friday afternoons between May 14 and June 12, 2009.  Here's the annoucement:

This seminar, sponsored by the Center for the History of British Political Thought, will examine the radically changing character of a fundamental concept in political and legal thought: property. Its shifting meanings in early modern Britain mirrored, and in many respects, drove, transformations of the emerging understanding of rights. Property originally indicated the right or title of a possessor to a thing possessed (with the possessor's entitlement to legal protection and political membership). During the seventeenth century, however, property came to designate the thing possessed. Participants will examine the conceptual history of property, from real property in land to personal property in goods, capital, or credit, which increasingly defined the individual as a political agent with the capacity to act in society. Primary readings will be drawn from the common law mind through Harrington and Locke to the Scottish Enlightenment and Adam Smith. Session topics may include: the role of property in commerce and political economy; the social and legal agency of women as derived through property; and the use of property as a justification for its expropriation from indigenous peoples. Research projects may address social conventions and practices influenced by changing discourses of property, cultural pressures under which those discourses changed, or varieties of discourse in which property figures. Invited faculty will contribute their perspectives.

More info is available through the Library's website.

Ben Barros

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December 17, 2008 in Conferences | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 16, 2008

Glaeser and Gyourko on Federal Housing Policy

Edward L. Glaeser (Harvard Economics) and Joseph Gyourko (Wharton) have a new book out from AEI called Rethinking Federal Housing Policy.  The book is available as a pdf from the AEI website through the previous link.  Here's the publisher's blurb:

Despite the recent drop in house prices, housing remains unaffordable for many ordinary Americans. Particularly along the coasts, housing remains extremely expensive. In Rethinking Federal Housing Policy: How to Make Housing Plentiful and Affordable, Edward L. Glaeser and Joseph Gyourko explain why housing is so expensive in some areas and outline a plan for making it more affordable.

Policymakers must recognize that conditions differ across housing markets, so housing policies need to reflect those differences. The poor and the middle class do not struggle with the same affordability issues, so housing policy needs to address each problem differently. The poor cannot afford housing simply because their incomes are low; the solution to that problem is direct income transfers to the poor, rather than interference with the housing market. 

In contrast, housing is unaffordable for the middle class because of local zoning restrictions on new home construction that limit the supply of suitable housing. The federal government can sensibly address this issue by providing incentives for local governments in these markets to allow more construction.

Ironically, current subsidies for construction of low-income housing only tie impoverished Americans to areas where they have limited job prospects. These supply subsidies also crowd out private-sector construction and benefit politically-connected developers. Mortgage interest deductions, which are intended to make housing more affordable for the middle class, simply allow families who can already afford a house to purchase a bigger one. In restricted, affluent markets, these deductions increase the amount families can pay for a house, driving up prices even higher.

Glaeser and Gyourko propose a comprehensive overhaul of federal housing policy that takes into account local regulations and economic conditions. Reform of the home mortgage interest deduction would provide incentives to local governments to allow the market to provide more housing, preventing unnecessary price inflation. Federal subsidies for the production of low-income housing should be eliminated and the funds reallocated to increase the scope of federal housing voucher programs which allow poor households to relocate to areas of greater economic promise.

A radical rethinking of policy is needed to allow housing markets to operate freely--and to make housing affordable and plentiful for the middle class and the poor.

Ben Barros

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December 16, 2008 in Books, Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Byrne on Gettysburg and Historic Preservation

J. Peter Byrne (Georgetown) has posted Hallowed Ground: The Gettysburg Battlefield in Historic Preservation Law on SSRN.  Here's the abstract:

This article seeks to deepen legal analysis of historic preservation law by analyzing how contemporary presuppositions and legal tools shape changing preservation approaches. It is organized around legal disputes concerning the Gettysburg battlefield, a site of great national significance, which has been preserved in different forms for nearly 150 years. The paper describes the history of preservation at Gettysburg. It argues that the Supreme Court's constitutional approval of federal acquisition of battlefield land in 1896 reflected contemporary conservative nationalism. It also analyzes how legal tools for preservation of land surrounding the battlefield have evolved from simple ownership to coordinated regulation and contract, breaking down the traditional stark division between protected and commercial land. Finally, the article examines how the National Historic Preservation Act governs government choices about what to preserve and how to interpret it. Because preservation of a site associated with a significant event inevitably will reflect contemporary interpretative biases, the law should mandate inclusive processes for making preservation choices and encourage the presentation of multiple perspectives.

Ben Barros

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December 16, 2008 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Salkin on Land Use Ethics

Patricia Salkin (Albany) has posted Ethical Considerations in Land Use Law Blowing in the Wind on SSRN.  Here's the abstract:

This paper focuses on current legal issues in ethical considerations in land use planning and zoning decision making with a particular emphasis on a new code of ethics for wind farm development recently announced by the New York Attorney General.

Ben Barros

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December 16, 2008 in Land Use, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, December 15, 2008

Eviction of Tenants From Foreclosed Apartments

Mark Edwards has some interesting thoughts on this issue over at the Co-op.

Ben Barros

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December 15, 2008 in Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)

Friday, December 12, 2008

Fertile Septuagenarian

A couple of days ago, Kaimi Wenger noted this interesting story out of India:

Rajo Devi became the oldest woman in recorded history to ever give birth on November 28, when the 70-year-old delivered a baby girl in India. . . . The baby was conceived through the use of a donor egg that was injected with Ms. Devi’s 72-year-old husband’s sperm. . . . The record age for giving birth has inched up over the years (well, it’s the record if you don’t count Sarah and Abraham in the Bible) passing through the sixth decade — from 62 to 66 to 67 — an occasional woman at a time.

As Kaimi noted, Jee v. Audley no longer looks as absurd as it once did.

Ben Barros

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December 12, 2008 in Future Interests and the RAP | Permalink | Comments (1) | TrackBack (0)

Thursday, December 11, 2008

First Circuit's Decision in Vineberg v. Bissonnette

How did I miss this?  Last month Judge Selya wrote an opinion affirming a summary judgement award of a painting that Max Stern, an art dealer, was forced by the Nazis to sell at below fair market value in 1937.  The opinion is here.  (Thanks to a link from the Illicit Cultural Property blog.)  There's a lot of stuff in there, though the opinion focuses on a laches argument that the possessor of the property made against the Stern estate's replevin claim.  (I know, I know--laches is an equitable defense and replivin is a legal action.  I had the same reaction.  But the district court allowed the argument and so did the first circuit.)

The possessor of painting ("Girl from the Sabine Mountains") is German baroness Maria-Luise Bissonnette.  She inherited it from her mother in 1991.  Bissonnette's step-father purchased the painting in 1937.

Alfred Brophy

December 11, 2008 in Personal Property | Permalink | Comments (1) | TrackBack (0)

Monday, December 8, 2008

Ostrom on Trust in Private and Common Property Experiments

Elinor Ostrom (Indiana - Political Science) has posted Trust in Private and Common Property Experiments on SSRN.  Here's the abstract:

We report the results from a series of experiments designed to investigate behavior in two settings that are frequently posited in the policy literature as generating different outcomes: private property and common property. The experimental settings closely parallel earlier experimental studies of the investment or trust game. The primary research question relates to the effect of the initial allocation of property rights on the level of trust that subjects will extend to others with whom they are linked. We find that initial endowments as common property lead to marginally greater cooperation or trust than when the initial endowment is fully owned by the first player as private property. Subjects' decisions are also shown to be correlated with attitudes toward trust and fairness measured in post-experiment questionnaires.

Ben Barros

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December 8, 2008 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Ostrom and Hess on Private and Common Property Rights

Elinor Ostrom (Indiana - Political Science) and Charlotte Hess (Indiana) have posted Private and Common Property Rights on SSRN.  Here's the abstract:

The relative advantages of private property and common property for the efficiency, equity, and sustainability of natural resource use patterns have long been debated in the legal and economics literatures. The debate has been clouded by a troika of confusions that relate to the difference between (1) common-property and open-access regimes, (2) common-pool resources and common-property regimes, and (3) a resource system and the flow of resource units. A property right is an enforceable authority to undertake particular actions in specific domains. The rights of access, withdrawal, management, exclusion, and alienation can be separately assigned to different individuals as well as being viewed as a cumulative scale moving from the minimal right of access through possessing full ownership rights. Some attributes of common-pool resources are conducive to the use of communal proprietorship or ownership and others are conducive to individual rights to withdrawal, management, exclusion and alienation. There are, however, no panaceas! No institutions generate better outcomes for the resource and for the users under all conditions. Many of the lessons learned from the operation of communal property regimes related to natural resource systems are theoretically relevant to understanding of a wide diversity of property regimes that are extensively used in modern societies.

Ben Barros

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December 8, 2008 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, December 5, 2008

Davidson on Standardization and Pluralism in Property Law

Nestor M. Davidson (Colorado) has posted Standardization and Pluralism in Property Law on SSRN.  Here's the abstract:

Property interests evince a near-universal tendency to coalesce into a limited list of mandatory forms, such as the estates in land, servitudes, and the forms of intellectual property. This standardization poses an intriguing puzzle for property theory. If property law is meant to bolster autonomy and enhance the efficiency that private ordering can bring to economic relations, how then to account for a persistent feature of the law that seems to undermine these goals? A number of scholars have grappled with this problem in recent years. Some have argued that aspects of standardization might actually be efficiency enhancing. Others have argued that standardization instead reflects inherent categories of social or objective meaning. Efficiency theories, however, overemphasize structure, while explanations focused on content underappreciate the architecture of standardization.

This Article proposes a new approach that focuses on the particular patterns of pluralism evident in the standard forms. Even as standardization remains a consistent feature of property law, the legal system constantly tinkers with the standard list and with the mandatory content of the forms themselves. This process produces a menagerie of forms that reflect the ongoing resolution of complex, competing values embodied in property law. The pluralism evident in the forms thus brings to the fore the essentially regulatory function of standardization. Standardization persists in property law because it provides a stable framework through which the legal system regulates the ever-changing public aspects of this central area of private property.

This pluralist account of standardization as regulatory platform sheds light on contemporary debates in property theory more generally, including the development of property rights, the relationship between intellectual property and more traditional forms of property, and the constitutional balance between individual expectation and state ordering in regulatory takings.

Ben Barros

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December 5, 2008 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Macey, O'Hara and Rosenberg on Applying Broker-Dealer Law to Subprime Mortgages

Jonathan R. Macey (Yale); Maureen O'Hara (Cornell - School of Management) and Gabriel D. Rosenberg (Yale) have posted Helping Law Catch Up to Markets: Applying Broker-Dealer Law to Subprime Mortgages on SSRN.  Here's the abstract:

Much of the blame for the current financial crisis is attributable to problems in the subprime mortgage market. In this Article we argue that changes in the nature of the mortgage contract make it both legally plausible and normatively desirable that subprime mortgages brokers be treated as securities broker-dealers for the purposes of the Securities Act of 1933 and the Securities and Exchange Act of 1934. Modern subprime mortgages are, in large part, investments that contain imbedded options and are not subject to any alternative comprehensive regulatory regime. Thus, they should qualify as "notes" under the Securities Act definition and the Supreme Court's Reves test, and expose their brokers to Rule 10b-5 oversight. In the alternative, we argue that the emergence of securitization as the primary process by which mortgages are financed provides a second, independent analytical basis for our theory that subprime mortgages financings should be subject to securities law: Mortgage financings qualify for the protections of rules such as SEC Rule 10b-5 because they occur "in connection with the purchase or sale of a security," the mortgage-backed security that is created and funded on the basis of the cash flows from the mortgagors' payments on their subprime mortgages.

Were the SEC to take control of subprime mortgages brokers, rules that forbid the sale of financial instruments to any person unless investing in those instruments is appropriate (suitable) to the investment needs and risk tolerance of that investor would come into play, oversight that would have avoided or greatly mitigated the current crisis. In describing what suitability would do for the mortgage market, we make a novel distinction between "product" and "transaction form" suitability in our analysis of the suitability rules. We argue that transaction form suitability is the appropriate legal theory to use when pursuing people who have unscrupulously sold subprime mortgages to unsophisticated investors. In closing, we discuss reasons why we believe the SEC has not tried to exert this authority to date.

Ben Barros

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December 5, 2008 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Bar-Gill on Subprime Mortgages

Oren Bar-Gill (NYU) has posted The Law, Economics and Psychology of Subprime Mortgage Contracts on SSRN.  Here's the abstract:

Over 4 million subprime loans were originated in 2006, bringing the total value of outstanding subprime loans over a trillion dollars. A few months later the subprime crisis began, with soaring foreclosure rates and hundreds of billions, perhaps trillions, of dollars in losses to borrowers, lenders, neighborhoods and cities, not to mention broader effects on the US and world economy. In this Article, I focus on the subprime mortgage contract and its central design features. I argue that these contractual design features can be explained as a rational market response to the imperfect rationality of borrowers. Accordingly, for many subprime borrowers loan contracts were not welfare maximizing. And to the extent that the design of subprime mortgage contracts contributed to the subprime crisis, the welfare loss to borrowers, substantial in itself, is compounded by much broader social costs. Finally, I argue that a better understanding of the market failure that produced these inefficient contracts should inform the ongoing efforts to reform the regulations governing the subprime market.

Ben Barros

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December 5, 2008 in Real Estate Transactions, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Stealing the Empire State Building

I'm finishing up Property I later this morning with continuing discussion of the recording acts, and couldn't help posting this amazing story.  Turns out the NY Daily News "stole" the Empire State Building by filing fake deeds with New York's city register, including a witness named Fay Wray, notarized by Willie Sutton.   (There's a serious issue of fraud the Daily News is highlighting, but a great way to tee up the limits of recordation!)

December 5, 2008 | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 2, 2008

How to Read a Legal Opinion . . . .

Folks have asked where this article can be found.  You may locate it at

Carol N. Brown

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December 2, 2008 in Teaching | Permalink | Comments (0) | TrackBack (0)

Monday, December 1, 2008

Landmarks Preservation of Religious Buildings

Along similar lines to the article mentioned in the last post, the Times has an article on some of the issues that arise when a religious building is being considered for landmarks preservation:

Houses of worship are among the most sensitive issues facing the landmarks commission. Mandating that a church be preserved can not only impose a heavy financial burden on a congregation, it also raises the specter of state interference with religious freedom. So the commission has been especially loath to take on churches or synagogues that don’t want to be designated.

“Nobody wants to be in a fight with a religious institution,” said Peg Breen, president of the New York Landmarks Conservancy, a preservation group.

But many preservationists and at least one commission member argue that the landmarks commission has not been aggressive enough in protecting churches from the overheated real estate market of the last few years. Given that churches tend to be low-rise buildings in choice residential locations, they note, the structures became prime targets for developers intent on building high-rise apartment towers.

Ben Barros

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December 1, 2008 in Land Use | Permalink | Comments (0) | TrackBack (0)