PropertyProf Blog

Alexander on The Public Use Requirement

Gregory Alexander (Cornell) has posted The Public Use Requirement and the Character of Consequentialist Reasoning (Context, Criteria & Consequences of Expropriation) on SSRN.  Here's the abstract:

How does expropriation fit into a human flourishing theory of property? If we take it that property owners owe members of their communities obligations to provide resources necessary to develop those capabilities that are essential to human flourishing, then what does this require of them in terms of the state’s power to expropriate?

There's an App for That: Future Interests

Ned Snow, a property professor at South Carolina, has made a new mobile app to helps students learn future interests.  It’s called Future Interests Made Simple.  The app contains pictures (drawn by the Prof. Snow's children), diagrams, graphics, examples, and lots of practice problems with detailed explanations. It's currently available on iPhones, iPads, and Android phones for $2.99  If your students are asking for more future interest practive problems, this is certainly an economical solution.  You can download the app at the iTunes Store and the Google Play Store.    

 

ALPS Call for Papers

The Association for Law, Property & Society (ALPS) is a scholarly organization for those engaged in scholarship on all aspects of property law and society.  ALPS will hold its 6 th Annual Meeting at the University Of Georgia School Of Law Athens, Georgia USA, May 1 - 2, 2015.

ALPS welcomes papers on any subject related to property law, including pedagogy, and from a diversity of perspe ctives. As in previous years, we will have both draft paper panels and early works-in-progress panels dedicated to brainstorming scholarship at its beginning stages. We also plan to support early - career scholars in their development and in connecting to me ntors through the conference events.

You may submit an individual paper or a panel (usually 4 presenters). Panel proposals may include a collection of paper presentations, roundtables, or book panels. Paper abstracts should not exceed 250 words. If submitting a panel, please submit a panel abstract and individual paper abstracts.

Registration and paper/panel submission is available through the conference website at http://law.uga.edu/association-law-property-society-alps

The deadline for submitting papers and panels is February 1, 2015, but registration for the conference will continue to be available after that date. Please do not submit papers and panels after February 1 as part of your registration without having emailed Jim Smith, [email protected] for permission to submit late. We will do our best to accommodate late submission requests, but can only guarantee that proposals submitted by the February 1 deadline will be able to be considered for the conference.

A discounted early registration rate of $150 is available until February 1, 2015. After that date, the registration rate is $180. The registration rate for full-time students (JD, PhD, or other program) is $50.

Skibine on Federal Control Over Tribal Lands

Alexander Skibine (Utah) has posted Using the New Equal Protection to Challenge Federal Control Over Tribal Lands on SSRN.  Here's the abstract:

There are today over 55 million acres of land owned by Indian tribes or their members that the Federal government claims are held in trust by the United States for the benefit of these tribes or members. Throughout history, purporting to act as a trustee for the Indians, Congress has enacted laws severely restricting the ability of Indians to make management decisions with respect to these lands. Many of these laws, for instance impose federal approval requirements before these tribally-owned lands can be leased, sold, or otherwise encumbered. This Article calls into question the power of the federal government to impose such restrictions and argues that these laws constitute a denial of equal protection under the Due Process Clause Fifth Amendment. Since 1974, laws made specifically applicable to Indians because of their status as Indians have been held not to involve racial classifications but political ones because these laws do not affect all “Indians” but only those Indians that are also members of Indian tribes. While this holding has been welcomed by tribes when fighting to uphold laws benefitting Indians, it has also impaired their ability to make effective equal protection arguments against laws detrimental to them. The prevailing view is that in order to mount a successful equal protection challenge, Indians would have to show that such laws are not rationally tied to Congress’ unique trust obligations towards Indians. Others take the position that regular rational basis review would be applicable to such equal protection challenges. This Article disagrees with both positions and argues that the new Supreme Court Equal Protection jurisprudence as reflected in cases such as United States v. Windsor (2013) can be successfully used by Indian tribes to attack those laws imposing, only on them, federal approval requirements before such lands can be leased or otherwise encumbered. Under such new jurisprudence a law can be set aside under equal protection either if it was based on unconstitutional animus towards a vulnerable minority or if it did not pass a somewhat more intensive level of review than rational basis. What some scholars have called “rational basis with bite.”

Delgado on Land Titles

Richard Delgado (Alabama) has posted Delgado's Darkroom: Critical Reflections on Land Titles and Latino Legal Education (New Mexico Law Review) on SSRN.  Here's the abstract:

Delgado's Darkroom grew out of a talk -- the annual Senator Dennis Chavez Lecture -- that I gave at University of New Mexico. In it, I make a number of points about the failure of legal education to equip minority lawyers to carry out serious law-reform work, especially in the area of land titles and claims.

 

Map of the Day: Voter ID Laws

The National Conference of State Legislatures explains the difference between strict and non-strict:

• Non-strict: At least some voters without acceptable identification have an option to cast a ballot that will be counted without further action on the part of the voter. For instance, a voter may sign an affidavit of identity, or poll workers may be permitted to vouch for the voter. In some of the “non-strict” states (Colorado, Florida, Montana, Oklahoma, Rhode Island, Utah and Vermont), voters who do not show required identification may vote on a provisional ballot. After the close of Election Day, election officials will determine (via a signature check or other verification) whether the voter was eligible and registered, and therefore whether the provisional ballot should be counted. No action on the part of the voter is required. In New Hampshire, election officials will send a letter to anyone who signed a challenged voter affidavit because they did not show an ID, and these voters must return the mailing, confirming that they are indeed in residence as indicated on the affidavit.
• Strict: Voters without acceptable identification must vote on a provisional ballot and also take additional steps after Election Day for it to be counted. For instance, the voter may be required to return to an election office within a few days after the election and present an acceptable ID to have the provisional ballot counted. If the voter does not come back to show ID, the provisional ballot is not counted. Using the non-strict/strict categorization, 21 states have non- strict voter ID requirements, and 10 have strict requirements.

Horton on Indescendibility

David Horton (UC Davis) has posted Contractual Indescendibility (Hastings Law Journal) on SSRN.  Here's the abstract:

Testation is supposed to be comprehensive: when we die, we pass everything we own to our friends and family. However, a growing number of valuable things defy this principle. From frequent flyer miles to virtual property to email and social media accounts, some assets expressly state that they cannot be transmitted by will, trust, or intestacy. This invited contribution to the Hastings Law Journal Symposium in honor of Charles L. Knapp analyzes this trend, which I call “contractual indescendibility.” It shows that consumers who challenge non-inheritability provisions face three obstacles. First, they have to prove an ownership interest in the item. Second, they need to invalidate the indescendibility clause under contract law. And third, they must navigate the gauntlet of federal legislation that governs this area. Despite these hurdles, I conclude that companies should not have carte blanche to delete this cherished stick from the bundle of rights.

Casting a Ballot for Local Issues

Keiter & Ruple on the Transfer of Public Lands Movement

Robert Keiter (Utah) & John Ruple (Utah) have posted A Legal Analysis of the Transfer of Public Lands Movement on SSRN.  Here's the abstract:

Utah’s legal claims to federal land grow out of its statehood enabling act. Since similar statutory language is found throughout the Western states, a successful claim by Utah could fuel more claims and potentially end the public land system as we know it. Utah’s claims, like those of its neighbors, are doomed to failure, however. The federal government has absolute control over federal public lands, including the constitutional authority to retain lands in federal ownership. Statutes authorizing Western states to join the Union required those same states to disclaim the right to additional lands and that disclaimer cannot be spun into a federal duty to dispose. Statehood enabling acts’ guarantee of equal political rights also cannot be spun into a promise of equal land ownership. Furthermore, though statehood enabling acts guarantee states a share of the proceeds resulting from federal land sales, that guarantee is not an obligation to sell.

As a BLM spokeswoman recently said with respect to confrontations over public land management and Utah’s antagonistic tone towards the federal government: “It is frustrating as we work to identify the best possible path forward for everyone when some of the entities we are trying to work with consistently feel the need to poke us in the eye and then complain we are not working with them.”99 This may be the larger lesson — that the Transfer Movement does more harm than good to the federal-state relationship needed for effective public land management.

Top SSRN Downloads

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

1.  [298 downloads]  Trying Times: Important Lessons to Be Learned from Recent Federal Tax Cases
      Nancy A. McLaughlin (Utah) & Stephen J. Small (Independent)

2.  [216 downloads]  It's a 'Criming Shame': Moving from Land Use Ethics to Criminalization of Behavior Leading to Permits and Other Zoning Related Acts
      Patricia Salkin (Touro) & Bailey Ince (Touro)

3.  [131 downloads]  Self-Defense Against Robots
      A. Michael Froomkin (Miami) & Zak Colangelo (Miami)

4.  [90 downloads]  Federalism and Municipal Innovation: Lessons from the Fight Against Vacant Properties
      Benton C. Martin (Emory)

5.  [72 downloads]  Law and Artifice in Blackstone's Commentaries
      Jessie Allen (Pitt)

6.  [69 downloads]  BitProperty
      Joshua Fairfield (Washington & Lee)

7.  [59 downloads]  The Behavioral Law and Economics of Fixed-Rate Mortgages (and Other Just-So Stories)
      Todd J. Zywicki (George Mason)

8.  [57 downloads]  Abuse of Property Right Without Political Foundations: A Response to Katz
      Mitchell N. Berman (Penn)

9.  [52 downloads]  Title Registration and the Abolition of Notice in British Columbia
      Douglas C. Harris (UBC) & May Au (UBC)

10.  [44 downloads] The Titling Role of Possession
       Benito Arruñada (Pompeu Fabra)

Mitchell on the Uniform Partition of Heirs Property Act

Thomas Mitchell (Wisconsin) has posted Reforming Property Law to Address Devastating Land Loss (Alabama Law Review) on SSRN.  Here's the abstract:

Tenancy-in-common ownership represents the most widespread form of common ownership of real property in the United States. Such ownership under the default rules also represents the most unstable ownership of real property in this country. Thousands of tenancy-in-common property owners, including members of many poor and minority families, have lost their commonly-owned property due to court-ordered, forced partition sales as well as much of their real estate wealth associated with such ownership as a result of such sales. Though some scholars and the media have highlighted how thousands of African-Americans have lost an untold amount of property and substantial real estate wealth as a result of partition sales, partition sales also have negatively impacted a wide range of other property owners. Some scholars have estimated that Hispanics in New Mexico lost nearly two millions acres of property in that state alone soon after the end of the Mexican-American War as a result of the manner in which land claims were settled pursuant to the Treaty of Guadalupe Hidalgo. Low- to moderate- income and poor white property owners in places like Appalachia have indicated to researchers that they feel at risk of losing their property as a result of partition sales. Though partition sales of tenancy-in-common property heretofore has been identified as a phenomenon impacting exclusively rural landowners, Hurricane Katrina revealed that there are a number of vulnerable tenancy-in-common property owners in urban cities and municipalities. There are even a surprising number of middle class, white property owners who own tenancy-in-common property under the default rules in some places in this country such as in Maine.

This Article, the lead article for this issue of the Alabama Law Review, reviews and analyzes the Uniform Partition of Heirs Property Act (UPHPA), a uniform act that represents the most significant reform to partition law in this country in modern times. I served as the Reporter, the person charged with principal responsibility for drafting a uniform act promulgated by the National Conference of Commissioners on Uniform State Laws, for the UPHPA. The Article summarizes those aspects of partition law that have resulted in thousands of property owners losing millions of acres of property and the real estate wealth associated with such property. The Article also provides an analysis of key sections of the UPHPA, and this analysis makes clear that the UPHPA represents a very comprehensive and innovative reform to what heretofore had long been perceived to be the intractable problem of tenancy-in-common land loss. For example, the drafters of the UPHPA drew in part on international comparative law in drafting certain sections of the UPHPA, including by drawing on the law governing exit of common ownership in countries such as Australia, Canada, England, and Scotland. Moreover, the Council of State Governments selected the UPHPA as one of thirty-five newly enacted statutes or uniform acts for inclusion in its 2013 Suggested State Legislation publication (from hundreds of submissions by state officials from across the country) to encourage states to consider it as a model. The UPHPA has been enacted into law in four states, it was introduced for consideration in four other jurisdictions in 2014, and a number of states are on the cusp of introducing it for consideration in 2015.