PropertyProf Blog

Anderson & Bogart Textbook Adds Video

The Anderson & Bogart Property Law textbook (Aspen) has recently added a cool-looking feature: video problems.  The videos drop students into assorted property law scenarios – a real estate closing, a zoning board hearing, and an estate planning session -- so they can see what lawyers actually do in these situations.  The problems also encourage students to think about the substantive issues raised in a “real-life” context.

For more information about the book, see: http://www.aspenlawschool.com/books/anderson_bogart_prop/default.asp

Consuming Property

 If you want to understand how Americans think about property (or at least how middlebrow Americans with cable think about property) you need to understand the worldview and aesthetic of Jonathan and Drew Scott.  The Scott Brothers (who are actually Canadian) host the #1 and #2 shows on HGTV.  Forbes has a good interview  with "The Property Brothers." 

Blomley on Making Space for Property

Nicholas Blomley (Simon Fraser) has posted Making Space for Property on SSRN.  Here's the abstract:

A modern day treaty process in British Columbia, Canada, involving First Nations and the federal and provincial governments, entails a struggle to carve out both metaphoric and material space for indigenous land and title. Despite considerable opposition, the state has insisted that First Nations will hold their treaty lands as a form of "fee simple", this being the way most private property owners hold property, granting broad rights to access, use, and alienate. This is said to generate what the state terms "certainty", a concept predicated on the idea of property as a priori, singular, and definite. I explore the resultant contest through a performative lens that treats property not as essence, but as effect. Tracing the complicated ways in which fee simple is performed in the treaty process reveals that fee simple is anything but. Multiple, competing, and overlapping fee simples are in circulation. The identification of this multiplicity offers valuable lessons for our understanding of the contemporary space of postcolonial reconciliation.

You on Land Reform in Korea, Taiwan, and the Philippines

Jong-sung You (Australian National University) has posted Land Reform, Inequality, and Corruption: A Comparative Historical Study of Korea, Taiwan, and the Philippines (Korean J. of International Studies) on SSRN.  Here's the abstract:

This article presents some of the key arguments and findings of the author’s forthcoming book, Democracy, Inequality and Corruption: Korea, Taiwan and the Philippines Compared (Cambridge University Press). It explores how inequality increases corruption via electoral clientelism, bureaucratic patronage, and elite capture of policy process through a comparative historical analysis of South Korea, Taiwan, and the Philippines that shared similar conditions at the time of independence. It finds that success and failure of land reform, which was little affected by corruption but largely determined by exogenous factors such as external communist threats and U.S. pressures for reform, produced different levels of inequality, which in turn influenced subsequent levels of corruption through capture and clientelism. In the Philippines, failed land reform maintained high inequality and domination of the landed elite in both politics and economy, which led to persistent political clientelism, increasing patronage in bureaucracy, and policy capture by the powerful elite. In contrast, successful land reform in South Korea and Taiwan dissolved the landed class and produced egalitarian socioeconomic structure, which helped to maintain state autonomy, contain clientelism, promote meritocratic bureaucracy, and develop programmatic politics over time.

The D.C. Housing Market has Changed Very Swiftly

The Washington Post has a sharp look (with some great graphics) at the recent changes in the market for housing in D.C.  In the last decade the housing stock has improved dramatically (and rents have gone way up).  The lede:

Back in 2005, before the new apartments went up in NoMa, and along 14th Street, and near the Nationals' ballpark, there was more housing in D.C. renting for less than $500 a month than for more than $1,500*. In the decade since, fortunes at the top and bottom of the city's housing market have swiftly flipped. By 2012, the most expensive rental units outnumbered the cheapest ones — by more than a three-to-one ratio.

John Oliver on Civil Asset Forfeiture

Are Progressive Taxes a Hurdle to Fighting Inequality

From the Vox:

There's a reason governments in nations with highly progressive taxes end up spending less to combat inequality — those taxes raise relatively little revenue for both economic and political reasons. For instance, the highly progressive taxes in the United States have fostered intense backlash from powerful economic elites, pushing high-earning individuals and firms to find loopholes and lobby for top-end cuts.

The reason Northern European countries with more regressive taxes achieve such high levels of labor market equality, despite less progressive tax systems, is that they spend money on increasing the skills and earning power of low-end wage earners. Countries with the lowest levels of inequality have learned that policies to cultivate skills for all workers and to achieve full employment policies can accelerate economic growth while also reducing inequality. Large investments in human capital reduce societal conflicts over the distribution of resources, even while expanding the economic pie.

Butler on The Governance Function of Constitutional Property

Lynda Butler (William & Mary) has posted The Governance Function of Constitutional Property (UC Davis Law Review) on SSRN.  Here's the abstract: 

Contemporary takings scholarship has devoted much attention to the problem of regulatory takings and has largely assumed that physical takings are resolved under a clear but simplistic per se rule. Under that rule modern courts automatically find a physical taking whenever government action causes a permanent physical invasion of property, regardless of the context or the importance of the public interest. Applying this bright line rule has proved to be difficult because it ignores the nuances of physical takings situations and the complexities of modern property arrangements. Should the physical takings concept apply to a rent control law that limits the ability of landlords to exclude tenants, to temporary but deliberate breaches of a levee to handle rising waters, to a law that forces landowners to accept an energy company’s underground drilling of shale deposits?

This article examines early and recent physical takings cases in light of modern property theory to demonstrate the greyness of many physical takings situations and to show how modern property theory could more effectively address those situations. A visual representation of the Court’s physical takings cases, developed from the results and logic of key cases, reveals the insufficiency of the Court’s analysis and suggests the need for more nuanced thinking. This more nuanced approach draws from modern property theory to examine physical takings claims not only under the traditional exclusion-based view of property but also from a governance perspective. Instead of deciding whether a government action subject to a physical takings claim is more like a permanent occupation violating the owner’s right to exclude or instead like a temporary trespass, courts should ask whether the exclusion or the governance strategy more effectively manages the private and public interests at stake. Seeing the resolution of physical takings conflicts as a choice between the exclusion and governance strategies – instead of as a choice between temporary versus permanent, direct versus indirect, continuous versus occasional – provides more explanatory power for the concept. When the dispute involves a resource subject to a complex property sharing arrangement, a resource needing more management because of overuse or changing natural conditions, a resource subject to a new use made possible through a technological advance, or an imminent public crisis, a governance approach allows fuller consideration of the complexity of the situation. The modern Court has overlooked this governance function in defining the reach of constitutional property under the Takings Clause.

Houston vs. San Francisco

Writing for the The Daily Beast, Joel Kotkin draws some comparisons between San Francisco and Houston -- cities that he believes will become America’s "dominant" metro areas in the near future:

The Bay Area, for all its vaunted progressivism, increasingly resembles a “gated community” whose high prices repel most potential newcomers, particularly families. Already by far the nation’s least affordable city—only 14 percent of current residents can possibly afford to buy a home—it represents a growth model that is by definition exclusive, almost a throwback to medieval forms where the rich clustered inside the city gates.

High housing prices, notes economist Jed Kolko, account for the fact that, despite the boom, population growth in the Bay Area remains well below national averages. From 2000 to 2013, the region lost approximately 550,000 million domestic migrants. Despite sizable immigration, the regional population growth rate has fallen below the national average.

In contrast, Houston is among the fastest growing regions in the country, with rapid increases both in domestic migrants and newcomers from abroad. This stems from both lower housing prices and a growth model that is far more amenable to higher paid blue collar and middle management positions. Since 2000, Houston’s population has grown by 30 percent compared, three times that of the Bay Area.

Ironically, Houston’s growth has been more egalitarian than that of the notionally super-progressive San Francisco region. A recent Brookings report found that income inequality has increased most rapidly in what is probably the most left-leaning big city in America, where the wages of the poorest 20 percent of all households have actually declined amid the dot com billions.

This inequality has a distinct racial element. The Bay Area gap between white residents (who dominate the tech economy) and minorities is among the highest in the nation while, during the boom, income has fallen for Hispanics and African-Americans, according to Joint Venture Silicon Valley.

This racial divergence is far less pronounced in Houston, while the growth of poverty since 2000 has been slower, increasing at one third the rate of New York and San Francisco, and half that of Los Angeles. The Texas city may lack the great views of San Francisco, but Houston has turned out to be a better city for middle class minorities. Homeownership among African Americans stands at 42 percent and for Latinos at more than 53 percent; this compares to 32 and 37 percent in the Bay Area.

Perhaps the biggest differences can be seen in families. Of the nation’s 52 largest metropolitan areas, the Bay Area has the lowest percentage, 11.5 percent, of people ages 5 to 14. In Houston, 23 percent of the population fits this age category. In particular San Francisco is notoriously inhospitable to families, with the lowest percentage of kids of any major city.

The two regions also reflect very different urban forms. The Bay Area’s leadership has opted to favor dense “in fill” growth and sought to restrict suburban development. Houston has taken a different tack. As its population has expanded, so too has the metropolitan area. This includes the development of many planned communities that appeal to middle class families and many immigrants. In 2013, Houston alone had more housing starts than the entire state of California.

But it would be wrong to dismiss Houston’s model as merely “sprawl.” Instead it is better seen as simply expansive. In fact, arguably no inner ring in the country has seen more rapid growth, with high-rise, mid-rise and townhouse development in many long neglected districts. The increase in high-density housing tracts (more than 5,000 per square mile) since 2000 has been almost ten times higher than the Bay Area.

(HT: Josh Blackman)

Fairfield on Online Property Transactions

Joshua Fairfield (Washington & Lee) has posted BitProperty (USC Law Review) on SSRN.  Here's the abstract:

Property is the law of lists and ledgers. County land records, stock certificate entries, mortgage registries, UCC filings on personal property, United States Copyright and Patent registries of interests in intellectual property, bank accounts, domain name systems, and consumers’ Kindle eBook collections in the cloud — all are merely entries in a list, determining who owns what.

Each such list has suffered under a traditional limitation. To prevent falsification or duplication, a single entity must maintain the list, and users must trust (and pay) that entity. As a result, transactions must proceed at significant expense and delay. Yet zero or near-zero expense is the fuel of internet scalability. Until technologies get cheap and fast enough, they cannot benefit from the full power of the internet. Property transactions have not yet truly seen an internet revolution because they are constrained by the cost of creating centralized trusted authorities.

This article retheorizes the contours of digital property if that central constraint were removed. There is every reason to believe it can be. A spate of interest in cryptocurrencies has driven the development of a series of technologies for creating public, cryptographically secure ledgers of property interests that do not rely on trust in a specific entity to curate the list. Previously, the digital objects that users could buy and sell online were not rivalrous in the same way as offline physical objects, unless some centralized entity such as a social network, digital currency issuer, or game company served the function of trusted list curator. Trustless public ledgers change this dynamic. Counterparties can hand one another digital, rivalrous objects in the same way that they used to hand each other gold bars or dollar bills. No intermediary or curator is needed.

Trustless public ledgers can help to reshape property law online. They offer the kind of near-zero transaction costs that have provoked radical disruptive innovation across the internet. With near-zero transaction costs, online property transactions can finally benefit from the huge scaling effects of internet technologies.

In addition, the advent of this disruptive technology provides an opportunity to more deeply theorize property interests in information environments. Property online is anemic. Consumers control few online resources and own even less. This is in no small part due to antiquated notions of property as the law of physical, tangible resources. With the advent of new technology that can create digital, scarce, and rival intangible assets, these basic assumptions should be reexamined, discarded, and replaced with a theory of property as an information communication and storage system. That is the project of this piece.

Map of the Day: Marriage Equality

The AALS Section on Property: Junior Scholar Mentoring Session

The AALS Section on Property is pleased to invite junior faculty members to submit an abstract of a current writing project or an abstract outlining a possible paper idea.  Authors of selected abstracts will informally present their theses/ideas during a mentoring session to be held as one part of the Section breakfast at the 2015 AALS Annual Meeting in Washington, D.C.  The breakfast will take place at 7:00 am on January 4, 2015, just before the Section’s 8:30 am panel program.

The goal of this event is to create a safe and organized (but informal) space at the AALS meeting for junior property scholars to meet and engage with more experienced scholars.  Selected presenters will have a maximum of 5 minutes to informally present their emerging theses/ideas to their table at the breakfast, after which the members of the Section at each table can offer feedback.  Each table will have at least one member of the Section’s Executive Committee as well as other more senior property scholars who will provide mentoring advice, including constructive comments and guidance designed to help suggest ideas and directions of research that might assist with the junior scholar’s project. 

 

Interested full-time, junior faculty members (defined for these purposes as 10 years or less in the academy) of AALS member law schools are invited to submit an abstract of one to three pages to Professor Timothy M. Mulvaney (Texas A&M University School of Law), Chair of the AALS Section on Property, at [email protected] by the new, extended deadline of October 27, 2014.  During this extended submission period, a review panel consisting of six property scholars will select an additional one to three junior scholars’ abstracts for these informal presentations and table discussions at the Section breakfast.  Selected presenters will be notified of the review panel’s decision in early November.  Each selected presenter will be responsible for paying his/her annual meeting registration fee, the registration fee for attending the Property Section breakfast, and travel expenses.

 

Please feel free to direct questions to Professor Mulvaney at [email protected].

Duplitecture at Chinese Colleges

From the Atlantic:

[American colleges] cloned British universities’ libraries, cathedrals, quads, sculptures and even dress codes in the hopes of recreating the feel (and prestige) of Oxford and Cambridge.  These days, colleges in China are copying America’s copycat approach. There’s a university in Shanghai where faux English manor houses sit side-by-side with dorms modeled on Britain’s half-timbered homes. To the north, Hebei province boasts a university inspired by Harry Potter’s Hogwarts—itself fashioned on the traditional collegiate Gothic. Even specific colleges have been cloned. The University of Nottingham’s Ningbo campus features replicas of the U.K. school’s iconic landmarks, flanked by British gardens.

[...] the recent turn toward revival architecture has been largely driven by the Chinese themselves: Looking like the best schools in the world seems, to many, like the natural first step toward becoming one of the best schools in the world. It’s a “dress for the ranking you want, not the ranking you have” mentality, and the historic styles serve to make newer schools seem as though they’re bastions of a time-honored academic tradition.

Book Announcement: ‘Persons, Parts and Property’

Imogen Goold (Oxford), Kate Greasley (Oxford), Jonathan Herring (Oxford) and Loane Skene (Melbourne) have recently edited Persons, Parts and Property (Oxford Press).  Here's the blurb from the publisher's website:

The debate over whether human bodies and their parts should be governed by the laws of property has accelerated with the pace of technological change. Having long held that a corpse could not be property, the common law first recognised that there could be a property interest in human tissue in some circumstances in the early 1900s, but it was not until a string of judicial decisions and statutory regulation in the 1990s and early 2000s that the place of this 'exception' was cemented. The 2009 decision of the Court of Appeal of England and Wales in Yearworth & Ors v North Bristol NHS Trust added a new dimension to the debate by supporting a move towards a broader, more principled basis for finding (or rejecting) property rights in human tissue. However, the law relating to property rights in human bodies and their parts remains highly contested. The contributions in this volume represent a collation of the broad spectrum of analyses on offer, and provide a detailed exploration of the salient legal and theoretical puzzles arising out of the body-as-property question.

Smith & Donoho on RLUIPA

George Smith (Catholic) & Philip Donoho (Georgetown) have posted RLUIPA: Re-Aligning Burdens of Proof, Clarifying Freedoms, and Re-Defining Responsibilities (NYU J. of Legis. and Public Policy) on SSRN.  Here's the abstract:

Into the breach primed by the U.S. Supreme Court’s decision in Employment Division Department of Human Resources v. Smith in 1990, Congress plunged headlong, dragging along with it a judiciary charged with enforcement of a mandate only defined ambiguously. Thus, in 2004 the Religious Land Use and Institutionalized Persons Act (RLUIPA) was passed and heralded as a legislative sum certain — a “clear” articulation of Congress’ balancing of local zoning prerogative with idiosyncratic religious use. It has proved anything but; for, since its passage, the results of litigation have remained resolutely immune to coherent explanation, as the Federal Circuit courts have become mired in a deep split, with resulting uncertainties engendering risks for both land user and regulator, alike, as well as crippling the very notion of federalism. This Article probes the present divisions of — principally — the Third, Seventh, and Eleventh Circuits, and concludes that Judge Richard Posner’s analytical approach to resolving this dilemma in applying RLUIPA is the strongest objective template for determining when the Fair Terms of RLUIPA have been violated by zoning authorities.

In order to introduce a needed quantum of certainty in judicial decision making, this Article concludes that one of two options should be pursued: resolving cases under the rubric of conformity with objective criteria — thereby vindicating the prerogative of local zoning authorities while protecting sectarian land users from the limitless discretion of a provincial bureaucracy; or, alternatively, rationalizing the procedures of a RLUIPA action in such a manner that recognizes a land user’s statutory claim under this legislation establishes a prima facie case. Under this second option, such a case could be rebutted upon the showing by a locality that its actions were reasonable under the common law doctrine of nuisance. A surrebuttal to this assertion could be made by a showing by the plaintiff that there was a discriminatory intent exhibited by the governmental authority in its actions to restrict the religious use of land. Each of these two evidentiary approaches represent a fair reading of RLUIPA — and, each would serve to lift the veil of ambiguity covering the capacious issue of religious land use under present law.

Housing Advocate Wins "Genius" Grant

The MacArthur Foundation explains its choice:

John Henneberger is an advocate for fair and affordable housing who has created a new paradigm for post-disaster rebuilding. The devastating impact of Hurricane Katrina exposed the failure of federal, state, and local governments to adequately respond to the needs of the poor and of persons with disabilities.

Skilled at identifying points of agreement among parties with varying, often opposing, economic interests and political views—such as developers, elected officials, and community members—Henneberger was an architect of a conciliation agreement with the State of Texas for Hurricanes Dolly and Ike post-disaster rebuilding. This agreement transformed the way that Texas and its local governments address affordable housing, community development, and fair housing and inspired new rule-making at the U.S. Department of Housing and Urban Development (HUD). It has helped to restore equity in disaster assistance for persons with disabilities and racial and ethnic minorities; expanded low-income residents’ involvement in disaster rebuilding; and served as a model for the allocation of disaster rebuilding funds in other states. Henneberger has also worked with architects and community development corporations to rebuild housing better and more rapidly after disasters. He organized a competition that challenged architects to design a permanent home that could be quickly delivered and assembled, cost less than a FEMA trailer, and be both easily expandable and attractive. The first homes were built and occupied in 2009 and improved versions of these homes are currently being constructed.

- See more at: http://www.macfound.org/fellows/916/#sthash.NUMOcuao.dpuf

John Henneberger is an advocate for fair and affordable housing who has created a new paradigm for post-disaster rebuilding. The devastating impact of Hurricane Katrina exposed the failure of federal, state, and local governments to adequately respond to the needs of the poor and of persons with disabilities.

Skilled at identifying points of agreement among parties with varying, often opposing, economic interests and political views—such as developers, elected officials, and community members—Henneberger was an architect of a conciliation agreement with the State of Texas for Hurricanes Dolly and Ike post-disaster rebuilding. This agreement transformed the way that Texas and its local governments address affordable housing, community development, and fair housing and inspired new rule-making at the U.S. Department of Housing and Urban Development (HUD). It has helped to restore equity in disaster assistance for persons with disabilities and racial and ethnic minorities; expanded low-income residents’ involvement in disaster rebuilding; and served as a model for the allocation of disaster rebuilding funds in other states. Henneberger has also worked with architects and community development corporations to rebuild housing better and more rapidly after disasters. He organized a competition that challenged architects to design a permanent home that could be quickly delivered and assembled, cost less than a FEMA trailer, and be both easily expandable and attractive. The first homes were built and occupied in 2009 and improved versions of these homes are currently being constructed.

- See more at: http://www.macfound.org/fellows/916/#sthash.NUMOcuao.dpuf

John Henneberger is an advocate for fair and affordable housing who has created a new paradigm for post-disaster rebuilding. The devastating impact of Hurricane Katrina exposed the failure of federal, state, and local governments to adequately respond to the needs of the poor and of persons with disabilities.

Skilled at identifying points of agreement among parties with varying, often opposing, economic interests and political views—such as developers, elected officials, and community members—Henneberger was an architect of a conciliation agreement with the State of Texas for Hurricanes Dolly and Ike post-disaster rebuilding. This agreement transformed the way that Texas and its local governments address affordable housing, community development, and fair housing and inspired new rule-making at the U.S. Department of Housing and Urban Development (HUD). It has helped to restore equity in disaster assistance for persons with disabilities and racial and ethnic minorities; expanded low-income residents’ involvement in disaster rebuilding; and served as a model for the allocation of disaster rebuilding funds in other states. Henneberger has also worked with architects and community development corporations to rebuild housing better and more rapidly after disasters. He organized a competition that challenged architects to design a permanent home that could be quickly delivered and assembled, cost less than a FEMA trailer, and be both easily expandable and attractive. The first homes were built and occupied in 2009 and improved versions of these homes are currently being constructed.

Top SSRN Downloads

In honor of the beginning of the month, here are the most downloaded property articles on SSRN over the last 60 days:

1.  [208 downloads] Intellectual Property Infringement as Vandalism
      Irina D. Manta (Hofstra) and Robert E. Wagner (CUNY – Business)

2.  [178 downloads]  City Replanning
      Roderick M. Hills, Jr. (NYU) & David Schleicher (George Mason)

3.  [112 downloads]  Rule of Flesh and Bone: The Dark Side of Informal Property Rights
      Stephen Clowney (Arkansas – Fayetteville)

4.  [88 downloads]  Airspace in an Age of Drones
      Troy A. Rule (ASU)

5.  [86 downloads]  The Cost of Personal Property Servitudes: Lessons for the Internet of Things
      Christina Mulligan (Brooklyn)

6.  [68 downloads]  Federalism and Municipal Innovation: Lessons from the Fight Against Vacant Properties
      Benton C. Martin (Emory)

7.  [52 downloads]  From Nectow to Koontz: The Supreme Court's Supervision of Land-Use Regulation
      William A. Fischel (Dartmouth – Econ)

8.  [41 downloads]  Trespass Revisited: Against the Keep-Off Theory of Property and for Owner-Responsibility
      Avihay Dorfman (Tel Aviv) & Assaf Jacob (Radziner)

9.  [40 downloads]  Title Registration and the Abolition of Notice in British Columbia
      Douglas C. Harris (UBC) and May Au (UBC)

10.  [40 downloads]  Progressive Property Moving Forward
       Timothy M. Mulvaney (Texas A&M)