PropertyProf Blog

Property in Rain

Yesterday's NY Times has a fun story about a change in Colorado law that now makes it permissible for owners to collect rain that falls on their property.  A taste:

For the first time since territorial days, rain will be free for the catching here, as more and more thirsty states part ways with one of the most entrenched codes of the West.  Precipitation, every last drop or flake, was assigned ownership from the moment it fell in many Western states, making scofflaws of people who scooped rainfall from their own gutters. In some instances, the rights to that water were assigned a century or more ago.

Now two new laws in Colorado will allow many people to collect rainwater legally. . . . 
.
Science has also stepped forward to underline how incorrect the old sweeping legal generalizations were.

A study in 2007 proved crucial to convincing Colorado lawmakers that rain catching would not rob water owners of their rights. It found that in an average year, 97 percent of the precipitation that fell in Douglas County, near Denver, never got anywhere near a stream. The water evaporated or was used by plants.

Ben Barros

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The Market in Human Eggs

Over at The Faculty Lounge, Kim Krawiec has a great post on New York's recent decision to allow (and cap) payments for human eggs used in research.  This should be of interest to those who follow property-in-the-body debates.

Ben Barros

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Brown on the Race to Subprime

Carol Necole Brown (UNC - Chapel Hill) has posted Intent and Empirics: Race to the Subprime on SSRN.  Here's the abstract:

The United States’ history of racially discriminatory banking, housing, and property policies created a community of black Americans accustomed to exploitative financial services and vulnerable to victimization by subprime lenders. My thesis is that black borrowers are experiencing a new iteration of intentional housing discrimination in the twentieth and twenty-first centuries; lenders identified a vulnerable “emerging market” of black homeowners and borrowers and knowingly targeted them to receive subprime or predatory loan products when equally situated white borrowers were given superior, prime mortgage products.

This Article explores how disparate lending practices coupled with banking deregulation undermined the Congressional push for increased minority homeownership and widened the already burgeoning wealth divide. Millions of borrowers who accepted subprime loans between 1998 and 2006 already have or will lose their homes to foreclosure, resulting in a net loss in homeownership for nearly one million families. Blacks are disproportionately represented among the subprime victims, especially black women. The lending and financial services structure that caused this crisis is complicated by evidence of redlining and of steering blacks into subprime loans, all of which contributed to the present foreclosure crisis. This subprime dilemma merely adds new terminology to a long history of racial discrimination in housing in America. In the end, this Article argues that the search for an understanding of the cumulative events that facilitated the exploitation of blacks by subprime lenders illuminates the institutional and national impediments to reversing the present and future harm of the subprime crisis and to ensuring blacks equal access to one of the benefits of full citizenship – property.

First, in Part II, I contend that the disparities in subprime lending experienced by black borrowers and especially by black women result from intentional reverse-redlining and steering by lending institutions, their loan officers, and brokers. Next, in Part III, I consider why blacks and black women are disproportionately victims of subprime mortgages and of predatory lending. Finally, Part IV concludes by discussing the after-effects of subprime and predatory lending and offers possible solutions for rethinking how blacks are to overcome this deeply profound experience with housing discrimination which I suggest made blacks prime subprime victims. It focuses on the property dilemma or rather the dilemma of the landless.

Ben Barros

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Collins on Eminent Domain, Home Rule and Retroactivity

Richard B. Collins (Colorado) has posted Telluride's Tale of Eminent Domain, Home Rule, and Retroactivity on SSRN.  Here's the abstract:

Telluride, Colorado, won an eminent domain battle with San Diego billionaire Neal Blue, but only after paying his price and his attorney's fees. The town passed a condemnation ordinance by popular initiative to take 572 acres adjacent to the town. The landowner obtained a state statute intended to forbid the town's action. The trial judge held the statute invalid under Colorado's constitutional home rule amendment. Town officials negotiated a compromise with the landowner, but its voters rejected it. The valuation trial was moved to a neighboring county much more favorable to the landowner, and the jury gave him his full price. The owner then appealed to the state supreme court based on the state statute. But that court affirmed, holding that Telluride's right to home rule overrode the statute. The case presented interesting issues of home rule, eminent domain, retroactivity, and venue that are analyzed in the article.

Ben Barros

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Framing in First-Year Property

I've been thinking about possession quite a bit lately, and this in turn has led me to think a bit about how we frame issues in the first-year property course.  There are a number of issues where I (and I think most PropertyProfs) teach the received wisdom on certain theoretical or conceptual points.  For example, I tend to emphasize that in many cases, possession is more of a conclusion than it is a fact of the matter.  I also tend to teach the bundle of rights model of understanding property.  Both of these are contestable positions, and their acceptance can lead to certain normative conclusions.  For example, Adam Mossoff has argued that the bundle of rights model has led to a weakening of property rights.  If Adam is right, then we are leading students towards normative positions when we teach the bundle of rights approach.

All of this leads to the worry that how we frame issues in first-year property may shape student understanding in unpredictable ways.  I’m not sure there is any way to avoid this, and I think that professors should feel free to teach from a particular point of view.  Still, it makes me a bit unsettled.

Ben Barros

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Katz on Abuse of Right

Larissa M. Katz (Queen's University - Faculty of Law) has posted A Jurisdictional Principle of Abuse of Right on SSRN.  Here's the abstract:

A principle of abuse of right means that an owner’s reasons for action, and not just the outcomes of his actions, affect the quality and so the legitimacy of his decisions as an owner. In this paper, I argue that the common law has produced a jurisdictional principle of abuse of right. Whereas civilian doctrines of abuse of right clearly serve perfectionist and communitarian goals, we can fit a jurisdictional principle of abuse of right within a conception of ownership as a self-seeking sphere of authority. On this account, an owner has jurisdiction to choose an agenda for his property based on his subjective determination of a worthwhile agenda in light of his own interests. An abuse of right occurs where an owner’s reasons change the character of his decision: when his sole reason for action is to cause harm to another, he is not acting on the basis of his subjective determination of a worthwhile agenda. He has abused his right because he has acted for the wrong reasons.

A jurisdictional principle of abuse of right establishes the maximal scope of freedom that can be justified in terms of our interest in exclusively setting the agenda for resources. The moral value of ownership is that it releases owners to act on their opinions about worthwhile uses in light of their own interests, and so to ignore the genuine disagreement that otherwise gets in the way of making decisions with distributive implications. This kind of authority can be justified by the value of a private sphere of freedom in which we are not forced to attend to the opinions or interests of others. An abuse of right principle marks the limits of what can be justified in this way: it ensures that owners are free to take charge of resources and to pursue what they think are worthwhile agendas, but it also ensures that ownership is no more than this.

Ben Barros

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Lavine and Salkin on Religious Exercise and Community Planning

Amy Lavine and Patricia Salkin (Albany) have posted God and the Land: A Holy War Between Religious Exercise and Community Planning and Development on SSRN.  Here's the abstract:

This article is a brief introduction to The Albany Government Law Review sympoisum on God and the Land. This piece sets forth a brief history of the Religious Land Use and Institutionalized Persons Act (RLUIPA) setting the backdrop for the controversy that has surrounded the Act and its impact on religious entities and municipalities. Since the enactment of RLUIPA, the floodgates have burst open with litigation in attempts to clarify many ambiguities in the statute. The remainder of the piece provides a sneak preview of the articles conatined in The Albany Government Law Review by Professors Angela Carmella, Marci Hamilton, Shelley Ross Saxer and Elizabeth Reilly, and by practitioners Wendi Kellington, Dwight Merriam and Daniel Dalton.

Ben Barros

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Ellickson on Federalism, Kelo, and Epstein

Robert C. Ellickson (Yale) has posted Federalism and Kelo: A Question for Richard Epstein on SSRN.  Here's the abstract:

The irrepressible Richard Epstein has been one of the most provocative and wide-ranging of contemporary legal scholars. According to Epstein’s own account, he started out as a natural rights libertarian, but then morphed slightly into a utilitarian. Other important strands of conservative thought have not commanded his consistent allegiance. Epstein has never shown any affinity, for example, to Burkean traditionalism. Moreover, Epstein’s interest in the structural principle of federalism, which favors the centralization of power where feasible, has run hot and cold. For example, he has sharply criticized the Supreme Court’s Kelo decision that declined to rule that a locality’s misuse of the power of eminent domain violated the federal Public Use Clause. This essay criticizes the merits of the redevelopment project at issue in Kelo, but also argues, on federalist principles, that the Supreme Court of the United States was correct in that instance to decide that it should not be on the front lines of the battle against eminent domain abuse.

Ben Barros

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Katz on Red Tape and Gridlock

Larissa M. Katz (Queen's University - Faculty of Law) has posted Red Tape and Gridlock on SSRN.  Here's the abstract:

This paper concerns the role of property theory in explaining why so many people around the world control their assets informally, without recourse to the state. According to one influential view, owners and their assets are driven to the informal sector because of deficiencies in the form of ownership on offer in the formal sphere. Where too many people have the power to veto the optimal use of a resource, we have a form of ownership, an anticommons, that is deficient. But this account of informality proceeds from an overly capacious theory of ownership. On this view, an owner’s position is incomplete if she lacks the requisite inputs for a project that represents the optimal use of an object. Further, a person counts as an “owner,” albeit one locked in an anticommons, merely if she has the power to block the ends that others are able to achieve with an object. I argue that this view of ownership leaves us unable to see that owners are in a radically different position vis-à-vis other owners with the same authority over an object than they are vis-à-vis the state or other non-owners who may be in a position to block an owner’s valuable ends. The integrity of the concept of the anticommons is undermined if we define it in terms of veto-power over the ends for which a resource is optimally suited.

In this paper, I situate the concept of the anticommons within a larger theory of ownership as agenda-setting authority. Seen this way, what is important about an anticommons is its effect on an owner’s means rather than her ends. Whereas owners of private property are never guaranteed the ability to achieve their ends, owners in an anticommons are not even guaranteed the ability to exercise their very means, their agenda-setting authority. From this revised and much narrower concept of the anticommons, what follows is that talk of “gridlock” in the formal sphere makes sense just as a normative argument about the best distribution of ownership and regulatory authority rather than a conceptual argument rooted in the idea of ownership.

Ben Barros

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A Statement of Progressive Property

Gregory S. Alexander (Cornell); Eduardo M. Penalver (Cornell); Joseph William Singer (Harvard); and Laura Underkuffler (Cornell) have posted A Statement of Progressive Property on SSRN.  Here's the abstract:

What would a progressive theory of property look like? Although such a theory might take root within any number of specific normative frameworks, this Statement of Progressive Property outlines several features progressive theories of property should have in common. The Statement argues that we should understand property as both an idea and an institution, that property confers power and shapes community, both in its legal and social dimensions, and that property should be understood as serving plural and incommensurable values whose accommodation is possible through reasoned deliberation and practical judgment.

Ben Barros

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Dana on Foreclosure and Fragmentation

David A. Dana (Northwestern) has posted The Foreclosure Crisis and the Anti-Fragmentation Principle in State Property Law on SSRN.  Here's the abstract:

Secured credit in homes has been divided and over-divided and spun into so many separate interests that economically rational, socially beneficial modifications of loans are impossible. The mortgage story is a new one but the excessive fragmentation of property and the creation of waste and inefficiency is not new. And our legal tradition of state property law has an answer, in the form of an anti-fragmentation principle. Consistent with this principle, federal government trustees should be authorized to review mortgages and, where modification would yield greater total return than foreclosure, modify the loans. Blind trustee review, moreover, can be achieved without formal condemnations of property interests or the creation of government liability for regulatory takings.

Ben Barros

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Supreme Court Grants Cert on Regulatory Takings Case

The Supreme Court today granted cert in Stop the Beach Renourishment v. Florida Department of Environmental Protection. (HT: Jonathan Adler at the VC).  The Florida Supreme Court's decision is available here.

Argh!  My summer is already booked.  I don't have time for this.

UPDATE:  I read the Florida Supreme Court decision and couldn't figure out why they granted cert.  The case is all about state law issues.  Then I looked at the cert petitions, which focused on the judicial takings issue.  If the grant does raise judicial takings, then this has the potential to be a very important case.  For those new to the issue, check out the best article on the subject, Barton H. Thompson, Jr., Judicial Takings, 76 Virginia Law Review 1449 (1990).

Ben Barros

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Sotomayor and Property Rights

Today's Times has an article on how property rights issues might come up in Judge Sotomayor's confirmation hearings.  The article focuses on the Second Circuit's opinion in Didden v. Port Chester.  The opinion was unsigned, but Judge Sotomayor was on the panel.  I'm on the record as thinking that Didden was wrongly decided, but I'm not sure how much the case says about Judge Sotomayor's actual views on property rights issues.  My biggest impression of the opinion is that it is just sloppy, as many unsigned appellate court opinions can be.  As I noted before, it isn't clear that either the members of the panel or the clerk who wrote the opinion had actually read the Supreme Court's opinion in Kelo.  There were also a number of procedural reasons why the District Court order should have been vacated -- the District Court granted a motion to dismiss without treating the plaintiff's allegations as true while giving credence to some of the defendants' testimony from a preliminary injunction hearing.  In this sense, Didden resembles the similarly unsigned opinion in Ricci v. DeStefano, the New Haven firefighters case that also appears to have been procedurally sloppy.  My impression from both cases is that they may be troubling more for the tendency of appellate courts to be lazy in getting rid of some cases through weak unsigned opinions than they may be on the merits of those cases.

Ben Barros

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Pace Environmental Law Review Announces Goes to Peer-Review

I just got this announcement, which will be of interest to readers who publish in topics related to environmental law:

Established in 1982, PELR was one of the first scholarly environmental law
journals.  As of August 1, 2009, Pace Environmental Law Review (PELR) will use
a new Peer Review process to select articles for publication.  Submissions
will be reviewed internally and then forwarded to a select group of Peer
Reviewers - academics, practitioners, and experts in the field, including
members of Pace Law School's world-renowned environmental law faculty.  The
Peer Review process will offer new and distinctive opportunities to foster
continued debate and reflection upon some of the most pressing topics within
the field of environmental law. Articles selected for publication will benefit
from:

-       Expedited editorial processing of 8 to 10 weeks from acceptance.

-       Single-article hard copy publication.

-       Inclusion in a bound volume distributed to PELR's wide-ranging list of
subscribers.

All articles submitted to PELR must be original scholarship and not previously
published.  Exclusive submission not required. 

We invite authors to submit articles either via ExpressO or directly in either
MSWord or PDF format to the PELR Development & Acquisitions Editor at
[email protected].

For more information, please visit the website at http://www.law.pace.edu/pelr

I'm a fan of peer review, and I hope this experiment works well.  I'm a little surprised that they are not requiring exclusive submission, and will be interested to see how this works for them.

Ben Barros

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Cornell Law Review on Progressive Property

The Cornell Law Review has a major symposium on "progressive property."  It begins with a joint statement by Greg Alexander, Eduardo M. Penalver, Joseph William Singer, and Laura S. Underkuffler.  Then follow articles on The Social-Obligation Norm in American Property Law by Gregory S. Alexander and Land Virtues by Eduardo M. Peñalver.  

The responses are Virtue and Rights in American Property Law by Eric R. Claeys; A Few Questions About the Social Obligation Norm by Jedediah Purdy; Mind the Gap: The Indirect Relation Between Ends and Means in American Property Law by Henry E. Smith; Should Property Scholars Drop Economics for Virtue?  A Skeptical Comment by Katrina M. Wyman.  There is also an essay, Democratic Estates: Property Law in a Free and Democratic Society by Joseph William Singer and, finally, a relpy, The Complex Core of Property, by Gregory S. Alexander.

Alexander's lead article deserves a lot of attention; I hope to devote some time to it later in the summer, though I'll add two things right now.  First, it comes at a time when the political winds may be (emphasis on may be) blowing his way.  So Alexander may be in a position to have his ideas heard in a way that hasn't been possible for several decades.  Second, I think that one could--and in fact Alexander has in some ways done this already in Properiety and Commodity--find a lot of the pieces of what he speaks about as the social obligations of property in American history.  For me as a historian, one interesting question is which pieces of property's role--as social obligation or something else--has been dominant over time.  Lots of fun to be had in talking about all this!

Alfred L. Brophy

Confusion Between American and International Takings Law

I should probably write something more substantial about this at some point, but I've been talking with various people recently about the international law of expropriation and its relationship to U.S. takings law.  There are a host of important differences, the biggest being that the former is based on international law, while the later is based on the U.S. constitution.  I wanted to point out one big difference that may be subtle and easy to miss.  Many international expropriation cases involve a breach by a host country of a contract of some sort with a foreign investor -- maybe a natural resources concession contract, or a power purchase agreement with a government utility.  In U.S. law, these contractual breaches would raise Contracts Clause issues.  So the international cases often feature expropriation discussions that meld issues that in the U.S. would be distinctly considered under the Contracts Clause and the Takings Clause.  This is not to say that in every case the government would lose on the Contracts Clause issue in the U.S. courts; rather, government breach of contract issues are usually considered separately from expropriation issues in U.S. cases.  In international cases, the two sets of issues can be completely intertwined.

Ben Barros

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Department of Misleading Headlines

Consider the following headline and lede:

U.S. Gov't Backs Off Seizure Plan, Says Flight 93 Landowners 'Will Be Treated Fairly'

SOMERSET, Pa. -- The U.S. government will not use eminent domain to seize people's land for a permanent Flight 93 memorial and instead will renew negotiations with landowners near the terrorist crash site in Somerset County.

Then consider the following, from later in the article:

Salazar told the park service to negotiate with landowners for one more week. Eminent domain will be used as a last resort if no agreement can be reached.

So, translated, the U.S. will back off its threat to use eminent domain to take the Flight 93 memorial property, BUT will only negotiate for a week before going back to using eminent domain if negotiations are not successful.  Bargaining in the shadow of law, anyone?  To be clear, I have no problem whatsoever with the government using eminent domain here.  The only difference between going straight to eminent domain and settling early and what is happening here is public perception and politics, which is also completely okay in this context.

Ben Barros

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