PropertyProf Blog

Map of the Day: Share of Adults with Debt in Collections

When it comes to debt in collections, not all regions of the country are equal.  As the map above shows, there are "great regional differences and geographic concentrations of debt in collections." New England – Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont – has the lowest concentration of reported debt in collections, although it is still a substantial 25 percent. In some areas of the South and West 4 of every 10 adults you see on the street have a debt collector calling their house.  Also of interest, among people with a report of debt in collections, the average amount owed is $5,178.

Arlen & Tontrup on the Endowment Effect

Jennifer Arlen (NYU) & Stephan Tontrup (Max Planck Institute) have posted Does the Endowment Effect Justify Legal Intervention? The Debiasing Effect of Institutions on SSRN.  Here's the abstract: 

We claim that the endowment effect rarely justifies legal intervention in private ordering. To our knowledge, we present the first theory to explain how institutions inhibit the endowment effect without altering people’s rights to their entitlements. The endowment effect is substantially caused by anticipated regret. We show that people experience regret only when they feel responsible for the decision and can mute regret by trading through institutions that let them share responsibility with others. As entitlement-holders typically transact through institutions, we expect most people to make unbiased trading decisions in real markets. We test two common institutions — agency and voting — that divide responsibility between multiple actors. Each caused most subjects to debias and trade in our study. We also show that people intentionally debias by employing institutions in order to share responsibility. Thus, when people can freely transact, private ordering generally overcomes the endowment effect.

Montana Seeks Property Professor

The University of Montana School of Law anticipates hiring a full-time, tenure-track professor beginning in the 2015-2016 academic year to teach in the area of property and related courses.  We are committed to integrating theory with practice, making substantial practice experience in the areas to be taught particularly valuable.

Tenure Track Faculty/Property Law Position

Title: Assistant Professor
Position Type: Academic
Closing Date: Screening begins 9/12/2014; applications accepted until further notice or the position is filled
Schedule: Full time academic year position (10 month contract) beginning fall semester 2015
Entry Rate: $72,000-$76,000
Benefits: Medical Insurance/Mandatory Retirement/Professional Development/Partial Tuition Waiver/Wellness

Primary Duties: Primary duties include teaching, scholarship and service, as set forth in the University of Montana School of Law Faculty Handbook. UM Law faculty may also be asked to assist with clinical course supervision.

Specific duties include: Teaching a required Property Law course to ~83 students, along with related elective courses such as intellectual property; advising students with questions about the practice and study of property law; interacting with state, tribal, and federal constituencies; producing scholarship and other written creative achievement; and engaging in professional service, including participation on law school and university committees.

 

Qualifications:

• Juris Doctorate degree from an ABA accredited law school
• a superior academic background
• substantial relevant practical experience in property law
• potential for effective teaching
• potential for scholarship
• the ability to work collegially with students, staff, faculty, and external constituencies of the law school
• creativity, resourcefulness, fairness, compassion, and initiative
•  

Application review will begin September 12, 2014, and continue until the position is filled.

 

Apply online only at http://umjobs.silkroad.com

IMPORTANT: Please do not send applications directly to the University of Montana School of Law.  Applications sent directly to the School of Law will not be considered or forwarded to Human Resource Services.  Only applications submitted through the UM online applicant system will be considered. No exceptions.  For a full position description, list of materials & instructions to apply, visit https://umjobs.silkroad.com/   

 

ADA/EOE/AA/Veteran's Preference Employer

Clark on China's Stealth Urban Land Revolution

Donald Clark (George Washington) has posted China's Stealth Urban Land Revolution (American Journal of Comparative Law) on SSRN.  Here's the abstract:

Both supporters and critics of China’s urban land use regime use the language of state ownership to describe it. But significant reforms have taken place to that regime since the early 1990s — so much so that over much of China’s urban land area, de facto re-privatization has already occurred. This is because the long-term use rights granted over urban land are economically and legally very similar to full private ownership, and indeed can be found in other jurisdictions where nobody doubts the existence of a private land ownership regime. Although some uncertainties remain, this is because the cost of maintaining them is low whereas the cost of resolving them is high; as that cost balance changes over time, there is reason to believe that they will be resolved before they become a drag on economic development. The analysis presented here applies not only to China, but to any jurisdiction where something less than full fee simple ownership (or its equivalent) is the dominant form of land tenure.

How Big Cities That Restrict New Housing Harm the Economy

The Washington Post piles on the horrible land use regime in San Francisco (and the counter-productive protests against new luxury housing):

Here's the first point, for locals: New housing supply benefits the entire city, even if that new supply takes the form of luxury condos. Tenant activists have regularly objected to new luxury developments as just another sign of gentrification. But even if that housing is intended for high-income tech workers, it will take some pressure off the existing units that those tech workers have occupied at the expense of middle- and lower-income residents. In effect, this means that affordable housing advocates who want to block new high-end developments are simply making the city more expensive.

Here is Moretti's broader point, from some research he has been conducting with Chang-Tai Hsieh at the University of Chicago (h/t Tim Lee): By preventing more workers who would like to live in the city from moving in, San Francisco — and this also goes for New York, San Jose, Boston, Washington, D.C., and to a lesser extent Seattle — is holding back the U.S. economy from being as productive as it could be.

Fischel on The Supreme Court's Supervision of Land-Use Regulation

William Fischel (Dartmouth - Econ) has posted From Nectow to Koontz: The Supreme Court's Supervision of Land-Use Regulation on SSRN.  Here's the abstract:

This is a preliminary chapter of my book in progress, tentatively titled The New Economics of Zoning Laws. This chapter selectively surveys court decisions on zoning over the past century. I offer new evidence on Nectow v. Cambridge (1927), the first case in which the US Supreme Court overturned a non-racial zoning ordinance. The Court got it wrong, at least by modern standards of review, because a master's report mischaracterized the history of the site and the purpose of zoning. The Court after Nectow has usually been deferential to state courts and local decisionmaking on land use, which I submit is appropriate given the Court’s lack of access to local knowledge. It has since 1987 insisted that the states not abandon the regulatory takings doctrine, but it has also put up substantial procedural barriers to moving cases into federal court. Its decisions create a modest price effect for local governments, which do not have to worry much about paying taxpayers’ money for a judgment unless their regulations leave no economically viable use or cause a physical occupation of the property. The Court’s departures from its deferential tradition have been in the exactions cases, most recently Koontz v. St. Johns River Water Management District (2013). These are economically questionable in that they appear to entrench existing regulations, thus lowering the opportunity cost of maintaining them. The decisions may, however, discourage governments from adopting regulations purely for the sake of obtaining general revenue. Zoning and related land-use regulations are highly popular institutions, though, so it seems unlikely that limiting the exactions process will discourage many of their excesses.

Legal Pot vs. Homeowners’ Associations

The Associated Press looks at a growing source of tension:

Pot may be legal in some states – but the neighbors don’t have to like it.

Marijuana and hemp have joined wacky paint colors and unsightly fences as common neighborhood disputes facing homeowners associations. Though a few HOAs have willingly changed their rules to accommodate for legal marijuana use or home-growing, many more are banning home pot smoking.

Homeowners associations can’t ban members from using marijuana in their homes when it’s legal. But if neighbors can see or smell weed, the law is clear – HOAs have every right to regulate the drug as a nuisance, or a threat to children along the lines of a swimming pool with no fence.

“The fact that people may be legally entitled to smoke doesn’t mean they can do it wherever they want, any more than they could walk into a restaurant and light up a cigarette,” said Richard Thompson, who owns a management consulting company that specializes in condominium and homeowner associations.

Thompson said his home condo development in Portland is a prime example of how marijuana’s growing acceptance has sparked neighbor conflicts.

“As soon as spring and summer come around, we hear complaints about marijuana smoke because people are out on their patios and they have the windows down,” he said.

Boyack on Common Interest Communities and Freedom of Contract

Andrea Boyack (Washburn) has posted Common Interest Community Covenants and the Freedom of Contract Myth (Brooklyn Journal of Law and Policy) on SSRN.  Here's the abstract:

Courts take a hands-off approach with respect to the content of common interest community (CIC) covenants, reasoning that freedom of contract mandates their enforcement. But CIC covenants differ from voluntary private contracts in important ways, making deferential enforcement in the name of contract policy unwarranted. Covenants that run with the land are specifically enforceable and bind subsequent owners of the property, potentially in perpetuity. Furthermore, CIC covenants are contracts of adhesion, made up of completely non-negotiable, recorded terms bundled into home acquisition. Developers and lenders generally prescribe the content of such covenants, and they may not reflect community desires or values. Contract analogy should not create presumptive validity for all CIC covenants and properly enacted rules. The reality of CIC governance is more complicated and implicates property and constitutional concerns as well as contract law. The proper approach to CIC governance review must draw from all three of these areas of the law. The subject matter scope of CIC governance should be limited based on servitude law principles. Constitutional protections should be legislated for members of CICs. And bona fide, deliberate assent should be prerequisite to holding owners bound to CIC obligations.

Famous Paintings You Can't Get on Loan

The Guardian has a fascinating article about the few artistic masterpieces that are considered either too fragile or too precious to loan to other museums:

Girl with a Pearl Earring thus joins the select band of art treasures that never see the outside world. Botticelli's Birth of Venus never leaves the Uffizi in Florence; Las Meninas by Velázquez stays put at the Prado in Madrid; Picasso's Guernica remains just down the road at the Reina Sofia museum; and his Demoiselles d'Avignon can only be seen at MoMA in New York.

Other sedentary art works include La Joie de Vivre by Matisse, Le Facteur Roulin by Van Gogh and Les Joueurs de Cartes by Cézanne, which are unlikely ever to leave the Barnes Foundation in Philadelphia. It is impossible for the Isenheim altarpiece to leave the Unterlinden museum in Colmar, or for Degas' Petite Danseuse de Quatorze Ans to escape from the National Gallery of Art in Washington DC. Needless to say, the Mona Lisa is under lock and key in the Louvre, Paris.

So why are all these famous pieces so stay-at-home? Predictably the principal reason is their state of health. Many of them, including the Mona Lisa, were painted on wood and are very sensitive to climatic changes, making travel a major worry.

Mumme on Labor as a Commodity

Claire Mumme (Windsor) has posted Property in Labour and the Limits of Contract (Book Chapter) on SSRN. Here's the abstract:

As has long been recognized, the contract of employment depends on the commodification of labour power. Notwithstanding debates amongst political theorists and trade union activists about whether individuals should be viewed self-owners, and whether it is possible to sell one’s capabilities without selling one’s self, the law does treat labour power as a commodity. There has been little research on the ways in which the law does so, however, for the simple reason that self-ownership of one’s laboring capacities is often taken as fact, as the starting premise for analysis, and treated as a necessary pre-condition for individual self-realization through contract. Moreover, proprietary and contractual forms of regulating work are often presented as diametrically opposed: a proprietary method of labour regulation is said to create a relationship of slavery, while contract is presented as an institution of choice.

This paper argues that an analysis of labour power as property, and its relationship to contract, emphasizes that both contract and property are enmeshed in the legal regulation of waged employment. Examining the ways in which the courts have given shape to individual’s proprietary rights over their labour power, and have set the terms for its exchange, demonstrates that the limitations on employers rights of control are not inherent to the contractual form. Instead, they often depend on wider social processes, such as production and labour processes, collective bargaining, and statutory regulation. Examining proprietary rights over labour power provides another window onto the malleability of the contractual form, and the degree to which political choices are made by courts and legislators in determining the terms of the employment contract.

This paper therefore investigates the relationship between contract, and labour power as property. To do so the historical evolution of contractual limitations on employers’ rights of control will be canvassed, and the ways in which these limitations are now fraying. In particular, the development of the managerial prerogative from a property to a contract-based interest is described, and the ways in which concepts of working-time have operated, in theory, to separate in law the commodification of labour power from the commodification of self. Finally, the paper concludes by examining the ways in which these limiting mechanisms are beginning to disappear, as collective bargaining protections dissipate and the statutory protections are rolled back.

How Much is a Sand Dune Easement Worth?

The property owners thought a few hundred thousand dollars.  A jury awarded them $300:

A jury has awarded a Harvey Cedars couple just $300 as compensation for the borough's taking of land needed to build a sand dune and berm to protect against damage from storms such as Hurricane Sandy, state officials said today.

The ruling, made Friday by a panel in state Superior Court in Ocean County, paled in comparison to the $200,000 Victor and Carolyn Groisser sought for their land, in addition to $600,000 they sought in damages, the Attorney General's Office said.

The case was remanded for a new trial after the state Supreme Court ruled last year that property owners were not entitled to "a windfall" or "a payout that disregards the home’s enhanced value resulting from a public project," such as sand dunes.

The court held that such a value must be factored into the fair compensation equation.

"This jury's decision supports the state's position that protecting homes and entire communities is more important than individual ocean views," Bob Martin, commissioner of the state Department of Environmental Protection, said in a statement.

Glicksman on Market-Based Environmental Programs

Robert Glicksman (George Washington) has posted Regulatory Safeguards for Accountable Ecosystem Service Markets in Wetlands Development (Kansas Law Review) on SSRN.  Here's the abstract:

The use of environmental markets creates the potential for achieving environmental protection goals more efficiently than traditional regulation is capable of doing. Past experience with emissions trading programs and other forms of environmental markets that operate in conjunction with traditional regulatory programs, however, illustrates the risks that accompany reliance on market-based strategies. In particular, participants in environmental regulatory markets have in some instances manipulated them to enhance private gain while undercutting public environmental objectives. Using the wetlands mitigation component of the federal Clean Water Act’s dredge and fill permit program as an example, this essay recommends that market-based environmental programs incorporate five different types of safeguards to promote the accountability of both market participants and the agencies supervising the operation of those programs. Reliance on financial safeguards, verifiable performance standards, transparency and public participation safeguards, oversight mechanisms such as monitoring and inspections, and rule of law safeguards can preserve opportunities for efficient achievement of environmental protection goals while reducing the risk that markets will be used to subvert those goals.

Renovating a Kitchen as a Renter

The New York Times Real Estate Section runs a reader Q&A:

Q. We live in a rent-stabilized apartment. Many years ago, at our own expense, we upgraded our kitchen, installing counters, tiling and new appliances. We also moved the kitchen sink about two feet. No plumbing was altered other than the visible line leading to the sink. The superintendent was aware of the work and, in fact, assisted at one point. The kitchen now is markedly superior to its former self and will be an asset to the landlord at some point in the future. But my question is: Can our lease be terminated for work done so long ago?Morningside Heights, Manhattan

A. If you violate the terms of your lease, there is a six-year statute of limitations on any claims a landlord could make against you. So if the work was done more than six years ago, you can probably exhale now.Continue reading the main storyRelated Coverage    Ask Real Estate: More Articles in the SeriesBut before you pop open the champagne in your fancy kitchen, think hard about the plumbing work you did, because your case might be a glaring exception to that rule. If any of the work violated city building codes, you could be in a precarious position. If you did not get proper permits for the plumbing work, for example, that could constitute a violation of the law, and there is no statute of limitations when it comes to building code violations as a breach of the lease.

“Basically, the violation renews every single day,” said Michael P. Kozek, a lawyer who represents tenants.

Even if the landlord knew about the work for years, a judge would be reluctant to waive a claim against you if the work is illegal. If the landlord decides one day to evict you over the kitchen, you could agree to put the kitchen back to its original state and keep your apartment. But that would not be an easy task to accomplish, because it would probably be hard to recreate an antiquated, deteriorating kitchen.

Some courts have allowed tenants to legalize the work already done by obtaining a permit and performing any necessary work to correct the violation, provided the work does not constitute a substantial injury to the apartment or pose a risk of harm to neighboring tenants.

“I would sit tight for now,” Mr. Kozek said. “If the landlord becomes aware of it, then immediately contact a lawyer to see if a resolution can be reached.”

Mulligan on The Cost of Personal Property Servitudes

Christina Mulligan (Brooklyn) has posted The Cost of Personal Property Servitudes: Lessons for the Internet of Things on SSRN.  Here's the abstract:

Why has the common law evolved to disfavor complex and nonpossessory personal property interests, while allowing comparative flexibility in real property? In recent decades, the blossoming of time shares, condominiums, and servitudes has dramatically increased variation in real property rights. But as restrictions on real property forms have eased, personal property forms have remained — and, indeed, have always been — severely and comparatively limited.

This Article will posit three reasons why simple, elegant interests are the norm in personal property. First, because personal property is small, mobile, and often fungible, the information costs associated with determining which property is burdened or fragmented are significantly higher than those associated with pieces of real property. Second, because personal property is generally inexpensive, the information costs associated with determining its status are frequently not worth paying. And finally, because the number of pieces of personal property one interacts with is so great, the information costs associated with correctly understanding them would be, in the aggregate, impracticable to pay if too many types of interests were permitted.

These reasons indicate that greater flexibility in property interests is most beneficial when property is distinct, valuable, and rarely encountered. In comparison, greater standardization is appropriate when property is fungible, lacks value, and is casually or frequently interacted with.

This analysis has implications for the debate within intellectual property law concerning the degree to which content owners may customize license agreements for using digital goods, software-embedded goods, and patented goods subject to conditional sales. Because the characteristics of intellectual-property-embedded goods bear a stronger resemblance to those of personal property than to those of real property, their use should be governed by the same straightforward rules as personal property rather than by the flexible and verbose terms in license agreements.

An Update on Dukeminier & Krier

Josh Blackman continues to stay on top of the doings at Aspen:

After I declared a partial victory in #AspenGate, I decided to stay with the 7th edition of the excellent property book, Dukeminier & Krier. My plan was to stick with the old edition for a semester, see how things go with the 8th edition, and maybe update it next year. That turned out not to be possible. My campus book store informed me that it was impossible to obtain any new copies of the 7th edition, and he could only obtain 50 used copies (I have 125 students in my two sections). My Aspen rep confirmed this. The market for used books will soon dry up. Rather than leaving my students to the mercy of buying used books on Amazon, I reluctantly agreed to move up to the 8th edition.

To make things fair, I asked my book store to stock *both* the traditional print version that you can keep ($223 with the ISBN of 9781454851363) and the “casebook connect” version that you rent ($182 with the ISBN of 9781454837602). At least students will have the option of how they wish to proceed. I encourage adopters of this book to ask their book stores to do the same.

I also asked the book store to add a sign with this note in front of the books, which I will also add to my syllabus.

Please note that if you purchase the Casebook Connect version (the print version and the digital version), you are not buying the book to keep, but only renting it. According to the terms of the license, you do not own the book, and are required to return the book when you are finished with it. You will not be able to resell it, as you are only leasing the book. If you will not use the electronic version, and plan on reselling your book, or want to keep it, you may considering buying the traditional print version, at a higher price. For more information, please see the attached article from the ABA Journal.

Everyone else is welcome to use similar language to your syllabus. Students should be aware of their options.

I think students will appreciate it. One of my former students who saw the ABA Journal article sent me this kind note:

 I appreciated your paying attention and taking the time to inject your logic. Books are a keystone to education (of all kinds) and it’s nice of you to stick up for us. While I pay cash for my books (and my tuition), your point about school loans was well taken last semester. I have friends who are borrowing money to pay for books. Your attention to books prices was greatly appreciated by all of us as a class. We did notice.

Professors should all remain vigilant on this front.

Map of the Day: How Tight is Your State

Mother Jones reports:

It is obvious to anyone who has traveled around the United States that cultural assumptions, behaviors, and norms vary widely. We all know, for instance, that the South is more politically conservative than the Northeast. And we at least vaguely assume that this is rooted in different outlooks on life.

But why do these different outlooks exist, and correspond so closely to different regions? In a paper recently published in the Proceedings of the National Academy of Sciences (and discussed more here), psychologists Jesse R. Harrington and Michele J. Gelfand of the University of Maryland propose a sweeping theory to explain this phenomenon. Call it the theory of "tightness-looseness": The researchers show, through analysis of anything from numbers of police per capita to the availability of booze, that some US states are far more "tight"—meaning that they "have many strongly enforced rules and little tolerance for deviance." Others, meanwhile, are more "loose," meaning that they "have few strongly enforced rules and greater tolerance for deviance."

The 10 tightest states? Mississippi, Alabama, Arkansas, Oklahoma, Tennessee, Texas, Louisiana, Kentucky, South Carolina, and North Carolina. The 10 loosest, meanwhile, are California, Oregon, Washington, Nevada, Maine, Massachusetts, Connecticut, Hawaii, New Hampshire, and Vermont. (Notice a pattern here?)

(HT: Jessie Owley)

Alexander on Intergenerational Communities

Gregory Alexander (Cornell) has posted Intergenerational Communities (Law & Ethics of Human Rights) on SSRN.  Here's the abstract:

Under the human flourishing theory of property, owners have obligations, positive as well as negative, that they owe to members of the various communities to which they belong. But are the members of those communities limited to living persons, or do they include non-living persons as well, i.e., future persons and the dead? This Article argues that owners owe two sorts of obligation to non-living members of our generational communities, one general, the other specific. The general obligation is to provide future generations with the basic material background conditions that are necessary for them to be able to carry out what I call life-transcending projects that their forebears have transmitted to them. The specific obligation is project-specific; that is, its purpose is to enable successive generational community members to whom particular life-transcending projects have been forwarded to be carried out in their way. The future generational members to whom the project is transferred must also be given whatever resources or goods are necessary to carry the project forward in its intended way. I argue further that each generational community owes its predecessors the obligation to accept life transcending projects transmitted to them by their forebears and make reasonable efforts to carry those projects forward into the future. The obligation is based on the past generational community members’ dependency on their successors for the projects to continue into the future, a matter that is constitutive of the project creators’ flourishing. This obligation is defeasible, rather than absolute, however.

'Strip Club Mogul' Buys House Next to Ex-Wife, Erects Giant Middle Finger Sculpture

Gawker does some reporting on the above picture:

A Michigan man has reportedly gone to Internet-ready lengths in order to troll his ex-wife with a daily reminder of his feelings towards her.

According to a person claiming to be the ex-wife's daughter, the crazy-wealthy Bloomfield Hillsman, identified only as "Alan," allegedly purchased the house next door to his ex . . . .   He then went a step further and purchased an expensive bronze statue of a middle finger, which he placed on the back porch and aimed at his ex-wife's house. As if that weren't quite enough passive aggression, Alan ensured the statue was visible 24/7 by shining a spotlight on it after dark.

Death of a Lion

Quintin Johnstone — property professor extraordinaire at Yale, employee of the Roosevelt Administration, giver of Judge Guido Calabrasi's only "B", and immortalizer in the classic  way not to establish a metes-and-bounds description (“about one half a rod more from the stump of the big hemlock tree where Philo Blake killed the bear . . . .”) has died.  Professor Johnstone taught until he was 96 and passed away at age 99.  His obituary is available at http://www.law.yale.edu/news/18560.htm.

 

(HT: Thanks to Tad Heuer for bringing this to the blog's attention)

Dagan on Liberalism and the Private Law of Property

Hanoch Dagan (Tel Aviv) has posted Liberalism and the Private Law of Property (Critical Analysis of Law) on SSRN. Here's the abstract:

This Essay reviews Alan Brudner’s neo-Hegelian theory of property. It critically analyzes Brudner’s conceptualization of the moral significance of property for private sovereignty, his understanding of the relationship between individual independence and self-determination, and his account of what makes private law private. I argue that Brudner is wrong on all three fronts and, furthermore, criticize his account of the market’s putative legitimation of property and public law’s alleged amelioration of the injustices entailed by a private law libertarian scheme.

Notwithstanding these failures, I salute Brudner’s ambitious and provocative project not only due to its many insights, but also because it helpfully elucidates the main strands of justification that property law must face. Indeed, a credible theory of property-for-self-determination must begin by remedying Brudner’s errors as per the moral significance of property for private sovereignty, the relationship between independence and self-determination, and the distinctive nature of private law. This Essay provides preliminary suggestions on all three fronts.