PropertyProf Blog

What's The Matter With Georgia?

Wow. 

The Georgia state Republican Party seems to think that Obama is hatching a nefarious plot to destroy the suburbs and the entire concept of private property:

Georgia state Senators held a meeting last month to discuss Agenda 21 . . . a nonbinding UN agreement aimed at promoting sustainable development. It is also the target of conservatives who believe that it is part of a conspiracy to [deny private property rights and] forcibly move suburbanites to cities.

[According to the meeting's leader,] Obama, local chambers of commerce and liberal groups will try to accomplish this through a form of mind-control: "They do that by a process known as the Delphi technique. The Delphi technique was developed by the Rand Corporation during the Cold War as a mind-control technique. It’s also known as “consensive process.” But basically the goal of the Delphi technique is to lead a targeted group of people to a pre-determined outcome while keeping the illusion of being open to public input."

Steve Clowney

Rosenbloom on Nature as a Common Pool Resource

Jonathan Rosenbloom (Drake) has posted Defining Nature as a Common Pool Resource (Book Chapter) on SSRN.  Here's the abstract:

One of the many ways in which we attempt to understand our relationship with nature is to define it as a “common pool resource.” This definition incorporates several legal, behavioral, and ecological concepts that seek to capture the intricate and complex place where nature and the governance of nature collide. Once we apply the common pool resource definition to nature, we commit – for better or for worse – to accepting the pre-existing framework in which it operates. This chapter seeks to identify the commitments embodied in the common pool resource framework as it applies to nature. It is an attempt to establish a foundation for forthcoming research on how these commitments influence management of natural resources and whether the commitments are consistent with our idea of nature. The chapter begins with a short background on common pool resources and the understanding of theme in the legal literature. The chapter then turns to five conceptual commitments we make by labeling nature as a common pool resource. The goal of this chapter is to explore the intended and unintended consequences of using the common pool resource definition; and question whether it is a beneficial mechanism for understanding and sustainably managing nature.

Steve Clowney

Map of the Day: 2012 Election

Chris Howard, a software engineer and illustrator, created this map of the presidential election results adjusted for both preference intensity AND population density.  The result paints a far more accurate picture of the country than we normally see in the simple red and blue electoral map.

Steve Clowney

Byrne on Rising Sea Levels and Property Rights

Peter Byrne (Georgetown) has posted The Cathedral Engulfed: Sea-Level Rise, Property Rights, and Time (LSU Law Review) on SSRN.  Here's the abstract:

Sea-level rise will require many new initiatives in land use regulation to adapt to unprecedented climate conditions. Such government actions will prompt regulatory and other takings claims, and also will be shaped by apprehension of such claims. This article analyzes the categories of land use regulations and other government initiatives likely to be enacted to adapt to sea-level rise and anticipates the takings claims that may be brought against them. In addition to hard and soft coastal armoring, the article considers regulations intended to force or induce development to retreat from rising waters. Retreat regulations present difficult takings problems, because they may prohibit all economically valuable development on a lot. But the article suggests various ways to capitalize on the future nature of sea-level rise to structure regulations and other government initiatives to minimize the risk or amount of takings liability. It argues that takings doctrine should not be so rigid as to prevent needed systematic adaptation.

Steve Clowney

The Real Dead Poets Society

Over at the Atlantic, Alexis Hauk examines the final resting places of America's greatest writers.

Writers' graves can be surprising places to visit. Unlike the luminaries housed at more elegant cemeteries, like Pere Lachaise in Paris (Victor Hugo, Marcel Proust, Oscar Wilde, Gertrude Stein, Richard Wright), many literary stars lie for eternity in simpler, plainer spots around this country, with traditions around how to commemorate them as widely varied as the genres they comprise.

Steve Clowney

Fracking Symposium at Case Western

Columbia's Tom Merrill will give the keynote address at a symposium organized by the Case Western Law Review:

On November 16, 2012 the Case Western Reserve Law Review will present its annual symposium, “The Law and Policy of Hyrdaulic Fracturing: Addressing the Isuses of the Natural Gas Boom.” Areas of discussion will include (1) the division of authority to regulate hydraulic fracturing among the federal, state, and local governments; (2) practical and legal effects stemming from environmental issues connected to hydraulic fracturing; (3) the debate over conditional use zoning and permitted use zoning; and (4) the impact of hydraulic fracturing on the energy economy. Professor Thomas W. Merrill, the Columbia University Charles Evans Hughes Professor of Law, will deliver the keynote address, “Fear of Fracking.” Professors Jonathan H. Adler, Noah Hall, and Jessie Hill will moderate panel discussions. A webcast will be available live at http://law.case.edu/Lectures.aspx?lec_id=309.

Steve Clowney

Rothman on the Right of Publicity

Jennifer Rothman (Loyola LA) has posted The Inalienable Right of Publicity (Georgetown Law Journal) on SSRN.  Here's the abstract:

This article challenges the conventional wisdom that the right of publicity is universally and uncontroversially alienable. Courts and scholars have routinely described the right as a freely transferable property right, akin to patents or copyrights. Despite such broad claims of unfettered alienability, courts have limited the transferability of publicity rights in a variety of instances. No one has developed a robust account of why such limits should exist or what their contours should be. This article remedies this omission and concludes that the right of publicity must have significantly limited alienability to protect the rights of individuals to control the development and use of their own identities. In the process of doing so, the article presents a major shift in right of publicity law from thinking about publicity-holders to thinking about “identity-holders.” The distinction between identity-holders and publicity-holders is a crucial one, but one that has not been made elsewhere. Without making such a distinction, it is impossible to describe (let alone justify) an alienable right of publicity.

The article presents a major reconceptualization of the right of publicity and suggests new ways of thinking about the right’s purported split from the right to privacy, as well as the competing interests of the public. It also lends insights for other areas of the law in which we struggle with what we mean by property and the appropriate nature of alienability, such as sales of organs, blood, babies, personal data, and moral rights.

Steve Clowney

The Homes of the Brave

Kaid Benfeld reminds us that veteran homelessness remains an significant problem in the United States; vets constitute a third of all homeless men.   Benfeld then rounds up some creative approaches to the problem that are occuring at the local level:

In Pittsfield, Massachusetts, the nonprofit veterans support organization Soldier On employed solar energy in a cooperative multifamily housing project intended to serve as a new national model for transitioning veterans from homelessness to homeownership.  Veterans have an opportunity to purchase an equity share in the 39-unit Gordon H. Mansfield Village, with the value held in trust and available if they choose to move out.  Services provided include health care, substance abuse aftercare, mental health counseling, and job training and placement assistance.  Residents also participate in the policy development, management, and maintenance of the Village.

Steve Clowney

Hockett on Using Eminent Domain to Solve the Mortgage Mess

Robert Hockett (Cornell) has posted Paying Paul and Robbing No One: An Eminent Domain Solution for Underwater Mortgage Debt that Can Benefit Literally Everyone on SSRN.  Here's the abstract:

This essay provides updated argumentation for and abbreviated specification of the municipal eminent domain plan for underwater mortgage loans that the author lays out in his earlier piece titled It Takes a Village. The nation's ungoing foreclosure crisis and economy-stifling mortgage debt deflation will not be arrested and reversed, the paper argues, until mortgage debt principal is written-down to post-bust home equity levels. Once that is done, however, literally everyone can benefit - from homeowners and bondholders to neighbors, communities, and local and regional economies.

Unfortunately, a host of classic collective action problems presently stand in the way of the 'win-win' solution here. Such problems require collective agents for their resolution, which is what private label securitization (PLS) trustees and even loan servicers are. But the pooling and servicing agreements (PSAs) pursuant to which many PLS trusts are formed, hurriedly drafted as they were during the bubble years when many pushed product and few apparently anticipated system-wide housing price crash, prohibit or effectively prevent even value-raising modifications or sales of sufficient numbers of underwater mortgage loans. This means that government alone - the sole entity able to sidestep dysfunctional contract rigidities, by use of the eminent domain authority - can serve as the requisite collective agent.

In theory, the essay continues, our federal government, through any number of instrumentalities, could play the appointed role. But political paralysis in Congress shows that it now faces collective action hurdles of its own. All that is left, then, is state and local government. But the latter, it happens, is happily best situated in any event to exercise the eminent domain authority to take underwater loans at fair value and modify them to benefit homeowners, bondholders, and third parties alike. For the nation's underwater mortgage loan problem is heavily localized in character, and municipalities in any event face the brunt of foreclosure-induced homelessness, tax base decline, and consequent blight wrought by ongoing defaults wrought by negative home equity - the makings of 'public use,' per our constitutional limits on eminent domain use, par excellence.

Steve Clowney

Professors' Corner Call -- November 14th

Professors’ Corner is a monthly free teleconference sponsored by the ABA Real Property, Trust and Estate Law Section's Legal Education and Uniform Laws Group. Each month’s call features a panel of three law professors who discuss recent real property cases of interest to real estate practitioners and scholars.

Wednesday, November 14, 2012
12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a..m. Pacific)
Call-in number: 866-646-6488
Passcode: 5577419753

November 2012’s program, moderated by Professor Tanya Marsh of the Wake Forest University School of Law, features recent developments in Title Insurance and Title Services.

Professor Joyce Palomar, the Kenneth E. McAfee Chair and Presidential Professor at the University of Oklahoma College of Law, will discuss MacDonald v. Old Republic Nat. Title Ins. Co., 2012 WL 3090045 (D.Mass.), the jurisdictional split on whether title insurers have a duty to disclose of-record title defects, and the contrast between title insurers’ litigation stance that they have no duty to disclose title defects and their advertising that “we discover and disclose to you those items that will remain against the property.”

Professor Barlow Burke is the John S. Myers and Alvina Reckman Myers Scholar and Professor of Law at American University's Washington College of Law. Professor Burke will discuss the "measure of damages" condition in an owner’s policy when the property has declined in value since the date of the policy issued for the purchase price paid by the owner.

Professor Eileen M. Roberts is the Austin J. Baillon and Caroline M. Baillon Professor of Real Estate Law at William Mitchell College of Law. Professor Roberts will discuss recent cases involving title companies (and attorneys) in their roles as escrow-holders and closing agents.

Please join us!

Tanya Marsh

Teaching Concurrent Interests -- By Experience

The last three years, I have forced my students to join Dropboxand a shared folder instead of loading materials through TWEN (I have an unhealthy hatred for TWEN, and likewise an unhealthy love for Dropbox).  

This year, I had a revelation.   What I have been doing is creating shared space subject to community expectations for how that space could be used.   For example, because the way I set up the space, students can take things out of the shared folder; they can create their own folders; and they can alter documents within the folder and then save the documents for everyone else.  Thus every year, several times during the course of the year, I have to (a) repopulate the dropbox with documents that have been taken out (really quite easy despite what I tell students); and (b) make an announcement about the space being open and shared and requesting stduents to leave the documents in place.   

This year, I have received what feels like the same number of students that have complained because a document went missing, and I have repopulated it, but I have not inforced the norm creating admonition about us sharing the open space.   My idea is to start a dicussion on Wednesday about how collective space sharing inherently requires norms for deciding how duties and rights shape interaction within the space.  I am going to ask the students to reflect on their experience in the shared space and then come up with a list of rules for how the space should be used.  

I think this is not unlike what we do in concurrent interests.  Rules based on accounting for profits, paying for repairs, and allocating taxes ulitmately define the space that multiple parties are seeking to occupy. The fiction of concurrent use is balanced by the pragmatism that "two men can't plow the same furrow." The imposition of legal rules necessarily defines not only who can use the space, but also the underlying preferences for which use is socially better.  

So, will the use of Dropbox shift when the community establishes rules?   We'll see..... 

Monopoly's Socialist Origins

According to Christopher Ketcham, the origins of Monopoly can be traced in 1906, when a Maryland actress named Lizzie Magie created "The Landlord's Game."  Evidently, she designed the game "as a tool for teaching the philosophy of Henry George, a nineteenth-century writer who had popularized the notion that no single person could claim to 'own' land."

The early version of the game:

had Chance cards with quotes attributed to Thomas Jefferson (“The earth belongs in usufruct to the living”), John Ruskin (“It begins to be asked on many sides how the possessors of the land became possessed of it”), and Andrew Carnegie (“The greatest astonishment of my life was the discovery that the man who does the work is not the man who gets rich”). The game’s most expensive properties to buy, and those most remunerative to own, were New York City’s Broadway, Fifth Avenue, and Wall Street. In place of Monopoly’s “Go!” was a box marked “Labor Upon Mother Earth Produces Wages.” The Landlord Game’s chief entertainment was the same as in Monopoly: competitors were to be saddled with debt and ultimately reduced to financial ruin, and only one person, the supermonopolist, would stand tall in the end. The players could, however, vote to do something not officially allowed in Monopoly: cooperate. Under this alternative rule set, they would pay land rent not to a property’s title holder but into a common pot—the rent effectively socialized so that, as Magie later wrote, “Prosperity is achieved.”

Steve Clowney

(HT: Andrew Sullivan)

UPDATE:  Al Brophy did a wonderful post on the landlord game all the way back in 2007.  Check it out:  http://lawprofessors.typepad.com/property/2007/07/the-landlord-ga.html

Map of the Day: America's Racist Tweets

The day after Obama's re-election, a number of racist tweets spilled across Twitter (Check out the slideshow compiled by Jezebel if you're not too squeamish).  Many of the tweets were geocoded: data embedded within them revealed their state of origin. Floating Sheep, a group of academic geographers, took the location information and mapped the density of racist tweets.  In the chart that follows, the location of the individual racist tweets are indicated by red dots. is overlaid on color-coded states. The shading reveals the density of hate tweets in a given state:

Steve Clowney

(HT: Atlantic Cities Blog)

Schorr on Western Water Rights

David Schorr (Tel Aviv) has posted The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier (Book Chapter) on SSRN.  Here's the abstract:

The water-law doctrine of prior appropriation is today widely misunderstood, largely due to ignorance of the social and legal context in which it arose. It has become associated with a set of values -- the preference for private over common property, the privatization of the public domain, the facilitation of markets in natural resources -- that have little to do with the ideology behind the decision or how contemporaries saw it. Analysis of the available historical evidence makes it quite clear not only that the doctrine of appropriation as developed in nineteenth-century Colorado was viewed at the time as striking a blow at private property in order to advance distributive justice, but also that it had that very effect as its central goal.

While the primary purpose of this book is to challenge the received wisdom regarding the ideology of western water law, relying primarily on an examination of contemporary sources, the significance of the argument goes beyond revision of the historical record for its own sake. Historians and theoreticians of property rights have tended to agree that the primary concern driving the rejection of riparian doctrine in favor of appropriation in the western United States was economic growth, part of that nineteenth-century “release of individual creative energy” by American law, to use Willard Hurst’s phrase or the common law’s characteristic tendency toward efficiency, as some economic analysts of the law would have it. The claims advanced in this book, stressing considerations of widespread distribution of property as the primary motivating factor in the adoption of appropriation law, challenge these consensus views regarding property law and American legal history in general. In doing so, they raise the question as to whether considerations of distributive justice have been given their due in study of these fields. Given the value American legal culture places on arguments from past practice and precedent, they also challenge current paradigms of natural-resource law.

Steve Clowney

Hudson on the Tension Between the Takings Clause and Public Trust Doctrine

Blake Hudson (LSU) has posted The American Takings Revolution and Public Trust Preservation: A Tale of Two Blackstones (Sea Grant Law & Policy Journal) on SSRN.  Here's the abstract:

The U.S. Constitution was forged out of a revolution that both rejected and embraced aspects of English legal tradition. The Takings Clause and its subsequent jurisprudential interpretation represents a rejection of what the Framers at the time and constitutional Reframers since that time viewed as central government over-reaching and improper interference with private property rights. Though some form of due process had been guaranteed to English property owners since Magna Carta, U.S. takings jurisprudence has sought more stringent protections, relegating government appropriation of property — and even regulation in some cases — to specific circumstances and only after government compensation is paid. This view represents Blackstone’s description of property as the absolute right of every citizen.

On the other hand, the Framers left fully intact—and a different set of constitutional Reframers are increasingly seeking to use — the English common law doctrine of public trust to prevent private property rights from trumping the public’s interest in certain resources, especially in the coastal zone. This doctrine inherently conflicts with the Takings Clause in many cases, for if a resource is protected by the public trust, then any restrictions on property made pursuant to that protection cannot result in a taking — the restrained activity was never part of the property owner’s bundle of property rights to begin with. This represents Blackstone’s description of property as a right that “may be restrained by positive laws enacted for reasons of state or for the supposed benefit of the community.”

This essay highlights the inevitable legal tension between the Takings Clause and public trust doctrine and its implications for coastal zone resources in a time of climate change. Ultimately, our revolution to cast out both English occupiers and aspects of English legal tradition, while embracing and preserving other aspects of that tradition, represents a deeply rooted legal inertia that creates a unique set of challenges for protecting coastal resources in a time of climate change. Understanding this inertia, however, also presents opportunities to explore three implications of the Takings Clause-public trust tension: 1) resolution of future legal controversies related to climate change along the coast; 2) a potential rebalancing of modern takings jurisprudence, which has arguably disturbed the appropriate balance between private property protections and the public good; and 3) the creation of better governance structures through institutional design enhancements and adjustments—in this case focusing on the institution that is U.S. constitutional law.

Steve Clowney

Do Foreclosures Increase Crime?

The evidence is mixed:

A few months ago our Emily Badger reported on a study that found no direct correlation between home foreclosures and crime. The researchers drew that conclusion from a thorough analysis of housing markets and crime statistics in 142 metro areas across the United States. "Moving forward, researchers should begin to think about why the foreclosure crisis is not directly linked to rates of violent and property crime," they wrote.

Before other scholars move forward too quickly, they might consider another study — this one set to appear in the Journal of Urban Economics — that reaches the opposite conclusion. The new work, led by Ingrid Gould Ellen of New York University, found that recent foreclosures in New York City led to a 1 percent increase in crime on the same block. The largest effects occurred when properties went all the way through the foreclosure process, either to auction or bank ownership.

Steve Clowney

Alexander on The Complexities of Land Reparations

Greg Alexander (Cornell) has posted The Complexities of Land Reparations on SSRN.  Here's the abstract:

The question whether unjust dispossessions of land perpetrated on whole peoples in the past should be corrected by restitution in kind, that is, granting reparations in the form of returning land to the dispossessed former owners or their present-day successors is substantially more complex than the questions posed by other forms of reparations. I argue that the complexities involved in all of the situations where claims for land reparations are made to correct historic injustices give us good reasons to be hesitant about granting such claims. At the same time, we should not dismiss such claims out of hand. Reparations which take a form other than restitution of dispossessed land may be both necessary and sufficient to establish a public marker of acknowledgment.

Steve Clowney

The Hurricane and the Housing Crisis

USA Today looks at the looming housing crisis in New York's outer boroughs:

In the city's five boroughs, an as-yet unidentified number of larger residential high-rises, including several low-income public housing projects run by the New York City Housing Authority, "are going to be out of commission for a very long time," Bloomberg said.

"The magnitude of the problem is we think we could have something between 30,000 and 40,000 people that we're going to have to find housing for," Bloomberg said. "We are working on it."

The Gothamist takes a different angle, examining whether tenants living in affected buildings can break their leases:

[E]ven if you weren't forced to leave your apartment, you could also get some money knocked off your rent if, say, you didn't have heat or hot water. "In New York and New Jersey, there is a warranty of habitability, in which the owner guarantees the apartment will be habitable," Dobkin explains. "And even if it's an act of God or nature such as a storm, the owner is responsible to the extent that a resident is entitled to a rent abatement if they are unable to use the apartment. No heat would often result in an abatement of 50 percent of the rent during the period when heat is required, but it's up to a judge to decide what impact it has on tenant's use of apartment."

 

Steve Clowney

Burling on Property and the Environment

James Burling (Pacific Legal Foundation) has posted The Uses and Abuses of Property Rights in Saving the Environment (Brigham-Kanner Property Rights Conference Journal) on SSRN.  Here's the abstract:

While freedom and property may be inseparable, the temptation to sacrifice one or the other to seemingly more critical societal goals is ever present. In the past century, the environmental-related limitations on property have progressed from zoning to advance the social welfare, to utilitarian conservation to preserve the human environment, and more lately to the preservation of the environment for its own sake. With each step, property rights have been impacted further. From the imposition of zoning, to regulatory restrictions on the use of property, and to the mechanism of conservation easements, the control of property by the owners of property has diminished. If freedom and property are truly interrelated, there may be troubling implications on the future of freedom. 

Steve Clowney

Today's Architecture Moment: Barclays Center Arena

The development of the Atlantic Yards project in Brooklyn has been a long and contentious affair.  In a nutshell, the government used eminent domain to take a number of "blighted" private properties (including a homeless shelter and some mixed income housing) and then transferred them to powerful real estate developer Bruce Ratner.  Ratner promised to build a state-of-the-art basketball arena for an NBA team, new luxury housing, and office space.  The controversy over the eminent domain takings generated a New York Court of Appeals decision, many news stories, and a documentary film.

This week, the New York Times took a critical look at the development, asking if Ratner's project outweighs all the fuss.  While the Times likes the basketball arena, the larger development looks like a miss:

Atlantic Yards project also exemplifies how the city, in this case hamstrung by the state, got planning backward, trying to eke public benefits from private interests awarded public subsidies and too much leeway. Development on this scale may take its lead from a developer’s vision but needs to proceed from public-spirited, publicly debated plans for what the city and streets should ultimately look like.

This area needed to have the conflicting street grids of the abutting neighborhoods linked. It needed more schools and public services to support the thousands of new apartments. It needed more pedestrian-friendly avenues and finer-grained architecture, possibly taller than now proposed in places but less monolithic at street level, with subtler and more humane massing of towers so that new buildings would improve the experience of walking along sidewalks and not just add square footage to the blocks.   

Steve Clowney